IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.2081/2016 (PAR) BETWEEN:
SRI SIDDAPPA S/O LATE CHANNAPPA AGED ABOUT 60 YEARS R/O SAGADE VILLAGE HARAVE HOBLI CHAMARAJANAGAR TALUK – 571 313 …APPELLANT (BY SMT.P.C.SUNITHA, ADV. FOR SRI S.ANIL KUMAR, ADV.) AND:
SMT.GOWRAMMA W/O SUBBAPPA AGED ABOUT 51 YEARS R/O MUDNAKUDE VILLAGE HARAVE HOBLI CHAMARAJANAGAR TALUK AND DISTRICT – 571 313 …RESPONDENT THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:09.09.2016 PASSED IN R.A.NO.49/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND CJM, CHAMARAJANAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:21.01.2013 PASSED IN O.S.NO.139/2010 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, CHAMARAJANAGAR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second appeal of the defendant arises out of the judgment and decree dated 09.09.2016 in Regular Appeal No.49/2013 passed by the Senior Civil Judge and C.J.M., Chamarajanagar.
2. By the impugned judgment and decree, the First Appellate Court has dismissed the appeal of the appellant and confirmed the judgment and decree dated 21.1.2013 in O.S.No.139/2010 passed by the Addl.Civil Judge & J.M.F.C., Chamarajanagar.
3. By the said judgment and decree, the Trial Court decreed the suit of the respondent/plaintiff for partition and separate possession of her half share in the suit schedule properties.
4. The subject matter of the suit were the agricultural land bearing Sy.No.233 measuring 5 acres 21 guntas and site bearing assessment No.16 with a residential house thereon situated in Sagade village of Chamarajanagar Taluk.
5. The respondent is the younger sister of the appellant. She filed the aforesaid suit claiming that the suit schedule properties were the absolute properties of their mother Puttabasamma. She further contended that her mother died about eight years prior to the suit and the defendant clandestinely got transferred khatha of suit properties in his name to deprive her share. She further contended that despite notice to give her half share in the suit schedule properties, defendant did not effect the partition.
6. The appellant/defendant admitted the relationship as well as that the properties were properties of Puttabasamma, but he contended that in 1984, Puttabasamma transferred the property to him by giving representation to the Revenue Authorities, thereby he has become absolute owner of the suit schedule properties. He further contended that plaintiff at the time of her marriage received money in lieu of her share and that they have spent money for presenting her gold and silver articles at the time of her marriage, therefore, she is not entitled to any share.
7. On the basis of such pleadings the trial court framed the following issues:
1. Whether the defendant proves that plaintiff had obtained her share of property by way of money?
2. Whether plaintiff is entitled for ½ share in the suit schedule property?
3. Whether plaintiff is entitled for partition and separate possession of ½ share in the suit properties?
4. What order or decree?
8. In support of her claim, plaintiff got examined herself as PW-1 and got marked Exs.P1 to P5, the RTC, Assessment Register Extract, Notice and postal acknowledgement, etc.
9. On behalf of the defendant, DWs-1 to 3 were examined and one Mutation Register extract was marked as Ex.D1.
10. The trial court on hearing the parties decreed the suit holding that the defendant has failed to prove his contention that plaintiff has received money in lieu of her share and the transfer of property in his favour as set up by him was not proved.
11. The defendant challenged the said judgment and decree before the first appellate court in R.A.No.49/2013 as aforesaid. The first appellate court concurring with the reasonings and findings of the trial court dismissed the appeal.
12. The defendant does not dispute that the properties were the absolute property of their mother Puttabasamma. He tried to contend that Puttabasamma during her lifetime has transferred the property to him. To prove such transfer in his favour, he relies only on Ex.D1, the mutation register extract. Section 17(1)(b) of Registration Act, 1908 requires any transfer of property worth `100/- or more only by a registered instrument. No such document was produced by the defendant. The mutation entries relied upon by him were effected, according to the plaintiff, clandestinely. Section 49 of Registration Act, says no document contrary to Section 17(1)(b) confer any right on the transferee. Therefore the revenue entries did not confer any title on the defendant.
13. Even with respect to the defence of plaintiff receiving money in lieu of her share and losing her interest in the property, no documentary evidence was produced. Any relinquishment of her share in the property ought to have been under a registered instrument. Under such circumstances, plaintiff and defendant being the Class-I heirs of Puttabasamma were held to be entitled to equal half share by virtue of Section 15(1)(a) read with Section 16(1) of the Hindu Succession Act. The matter does not involve any substantial question of law. Therefore, the appeal is dismissed.
In view of disposal of the appeal, I.A.No.1/2016 does not survive for consideration and disposed of accordingly.
Sd/- JUDGE KNM/-