IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.1624/2012 (DEC/INJ) BETWEEN:
SMT. PUTTATHAYAMMA, W/O ANGADI SIDDAMMANA SIDDEGOWDA, AGED ABOUT 50 YEARS, R/AT CHOTTANAHALLI VILLAGE, B.G. PURA HOBLI, MALLAVALLI TALUK-571 430.
(BY SRI H.C.SHIVARAMU, ADVOCATE) AND:
SIDDEGOWDA, S/O ANGADI SIDDAMMANA SIDDEGOWDA, AGED ABOUT 56 YEARS, R/AT CHOTTANAHALLI VILLAGE, B.G.PURA HOBLI, MALLAVALLI TALUK–571 430.
...APPELLANT …RESPONDENT (BY SRI K.P.ASHOK KUMAR, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE DATED 10.04.2012 PASSED IN R.A.NO.32/2010 ON THE FILE OF SENIOR CIVIL JUDGE AND J.M.F.C, MALAVALLI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.04.2010 PASSED IN O.S.NO.105/2007 ON THE FILE OF I ADDITIONAL CIVIL JUDGE (JR.DN), MALAVALLI.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the appellant/defendant being aggrieved by the judgment and decree passed by the 1st Additional Civil Judge (Jr.Dn.), Malavalli, (hereinafter referred to as the ‘trial Court’) in OS.No.105/2007 for having decreed the suit and the same was upheld by the Senior Civil Judge and JMFC, Malavalli (hereinafter referred to as the ‘1st Appellate Court’) in RA.No.32/2010 dated 10.04.2012.
2. Heard the arguments of learned counsel for the appellant as well as the learned counsel for the respondent.
3. The status of the parties before the Trial Court is retained for the sake of convenience.
4. The case of the plaintiff is that he is the absolute owner of the suit schedule properties bearing Sy.Nos.359/2 and 360/3 measuring 83 and 82 guntas respectively, which are ancestral properties and the plaintiff also purchased the land bearing Sy.Nos.358, 33/5C and 213/5B measuring in all 0.57½ guntas, 0.3½ guntas and 0.27 guntas respectively. The said properties are self acquired properties of the plaintiff and the same was purchased under the registered sale deed and the revenue entries are standing in his name. Further the case of the plaintiff is that the defendant is his wife and have two female children. The daughters are also married and residing in their matrimonial houses. The defendant herself arranged for second marriage of the plaintiff with one Gowramma, because they had no male issues. Due to some differences arose between the plaintiff and defendant, they are living separately. In spite of several panchayaths, both the parties not able to live together. Taking advantage of ill-
health of the plaintiff, in collusion with the revenue authorities, the defendant got changed the katha of the suit schedule properties in her name and the defendant is trying to alienate the property to third party declaring herself as the absolute owner of the property. Hence, the plaintiff filed the suit.
5. Pursuant to the summons issued by the trial Court, the defendant appeared through her counsel and filed the written statement by admitting the relationship between the plaintiff and defendant and also two daughters were born out of their wedlock and the katha of the suit schedule properties were changed in the name of the defendant as per the consent given by the plaintiff. The plaintiff had bad habits like consuming alcohol, gambling and had illicit relationship with one Gowramma. The plaintiff is not an absolute owner of the suit schedule property as it is joint family properties as the properties were acquired among the members of the family by the income of the joint family properties. Hence, prayed for dismissal of the suit.
6. Based on the rival pleadings, the trial Court framed the following issues:
1. Whether the plaintiff proves that, the suit schedule properties are his self acquired properties?
2. Whether the plaintiff further proves that, he is in lawful possession and enjoyment of the suit schedule properties?
3. Whether the plaintiff is entitled to declaration as prayed for?
4. Whether the plaintiff is entitled to permanent injunction against the defendant as prayed for?
5. What order or decree?
7. To substantiate the contention of the plaintiff, plaintiff himself examined as PW.1 and examined one more witness as P.W.2 and got marked 10 documents as Exs.P.1 to P.10 and on behalf of the defendant, defendant herself examined as D.W.1 and examined three more witnesses as D.Ws.1 to 4 and got marked 6 documents as Exs.D.1 to D6.
8. After considering the evidence on record and hearing the arguments, the trial Court answered issue Nos.1 to 4 in the affirmative and ultimately, decreed the suit by judgment dated 23.04.2010. Assailing the same, the defendant-wife filed RA.No.32/2010. The 1st Appellate Court after hearing the arguments framed the following four points for its consideration, which are as under:
1. Whether plaintiff proves that, suit schedule properties are self acquired properties and the plaintiff is in lawful possession and enjoyment of the suit schedule properties?
2. Is the plaintiff entitle for the relief of declaration and permanent injunction, as prayed for in the plaint?
3. Whether appellant has made out grounds to interfere in the judgment and decree passed by the trial Court in O.S.No.105/2007 dated 23.04.2010?
4. What order?
9. The 1st Appellate Court answered point Nos.1 and 2 in affirmative and point No.3 in negative and ultimately, dismissed the appeal by confirming the judgment passed by the trial Court. Assailing the same, the defendant-wife is before this Court by way of second appeal.
10. Learned counsel for the appellant has strenuously contended that the judgment of both the courts below are illegal and against the evidence of the appellant/defendant and also the documentary evidence produced before the Court. The properties in question belonged to joint family and the same was not properly appreciated by both the courts below and decreed the suit in favour of the plaintiff. Therefore, it is contended that the substantial questions of law are involved to admit this appeal and prayed for allowing the appeal.
11. Per contra, learned counsel for the respondent vehemently contended that some of the properties belong to the father of the plaintiff, which are an ancestral properties and subsequently, the plaintiff purchased some of the properties under the registered sale deed and he is the absolute owner of the schedule properties, the defendant-wife cannot be treated as co- parcener under the family of the husband and she is not entitled for any share when the plaintiff- husband is alive and therefore, he contended that the question of claiming any share is also not correct. Therefore, he contended that there is no substantial question of law involved in the concurrent findings of both the courts below and hence, prays for dismissal of the appeal.
12. Upon hearing the arguments of learned counsel for the parties and on perusal of the record, it goes to show that the relationship of the plaintiff and defendant who are husband and wife is not in dispute and two daughters were born out of their wedlock. They are also married long back and living in their matrimonial houses, which is also not in dispute. It is also not in dispute that the plaintiff and defendant are residing separately from long back. The plaintiff contends that with the consent of defendant he married the said Gowramma, whereas the defendant says that he had illegal intimacy with Gowramma and the marriage was held between the plaintiff and the said Gowramma and a son was also born out of their wedlock, which is also not in dispute. The only dispute between the parties is with regard to the properties claimed by the defendant in Sy.Nos.359/2 and 360/3. These properties are ancestral properties. The land measuring 2 acres 1 guntas in Sy.No.360/3 as claimed by the plaintiff is an ancestral property and the remaining properties in Sy.Nos.358/2B and 359/2 are claimed to be the self acquired properties of the plaintiff and the same was not denied by the defendant.
13. On perusal of the documents produced by the plaintiff regarding certified copy of the sale deed, it goes to show that the suit schedule properties are an ancestral properties and other two properties are purchased by him under the sale deed. The defendant claims title over the property only based on the revenue entries, which is mutated in her name as per Exs.D.1 to D.6. She contended that the plaintiff has given consent for transferring the land in her name and mutated her name, but the same was denied by the plaintiff. It is well settled principle of law by the Hon’ble Apex Court that the revenue entries will not convey any title to any persons. Admittedly, the sale deed stands in the name of the plaintiff in respect of two properties, which are self acquired properties. The defendant is the wife of the plaintiff, cannot be considered as a co-parcener in the husband’s family. Of course, she may be a co-parcener in her father’s family as per Section 6 of the Hindu Succession Act. Therefore, the defendant cannot claim any co-parcenery status in the husband’s family until the husband is alive.
14. In this case, the plaintiff is the husband of defendant and she cannot claim any property or share in the ancestral property and other remaining properties which are self acquired properties belongs to the plaintiff as per the sale deeds and there is no document produced by the defendant to prove that she has contributed any money to purchase the properties out of the jointly family income and no documents to show that plaintiff relinquished his right over the property to the defendant. Of course, there is no divorce between the parties and she may be entitled for maintenance from the plaintiff, but not share in the husband’s property. Such being the case, the trial Court after considering the evidence on record as held that the plaintiff has proved that the properties are self acquired properties and on the basis of the documentary evidence has rightly decreed the suit. The 1st Appellate Court also after re-appreciating the evidence on record has rightly dismissed the appeal filed by the appellant/wife. Hence, there is no substantial question of law involved to admit this appeal. Therefore, the appeal is devoid of merit and it is liable to be dismissed.
Accordingly, the appeal is dismissed.
Sd/- JUDGE PB