IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE B.M.SHYAM PRASAD REGULAR SECOND APPEAL NO.1625 OF 2013 BETWEEN:
SMT. VIJAYALAKSHMAMMA W/O LATE CHANDRASHEKHAR AGED 45 YEARS BYRAREDDYPALLI VILLAGE PALAMNER TALUK CHITTOOR DISTRICT ANDHRA PRADESH.
(BY SMT. NEERAJA KARANTH, ADV.) AND:
1. G. VENKATA REDDY SINCE DEAD BY LRS.
1(a) SMT. RAMALAKSHMAMMA W/O LATE G. VENKATA REDDY R/AT. MALAPPALLI CHINTAMANI TALUK.
2. V. GOPALA REDDY S/O LATE VENKATA REDDY AGED 26 YEARS R/AT. MALAPPALLI CHINTAMANI TOWN.
3. SMT. M.V. PADMAVATHI W/O SRINIVAS D/O LATE VENATA REDDY AGED 32 YEARS R/AT. KATAMACHANAHALLI VILLAGE KASABA HOBLI, CHINTAMANI TALUK.
… APPELLANT 4. N.S. PRABHAKAR S/O LATE NAMA SURYANARAYANAIAH SINCE DEAD BY LRS.
4(a) KASTHURAMMA W/O LATE N.S. PRABHAKAR AGED 65 YEARS.
4(b) NAMA SANJAY S/O LATE N.S. PRABHAKAR AGED ABOUT 65 YEARS.
4(c) NAMA MADHUSUDHAN S/O LATE N.S. PRABHAKAR AGED ABOUT 38 YEARS.
4(d) NAMA MURALIDHAR S/O LATE N.S. PRABHAKAR AGED ABOUT 36 YEARS.
RESPONDENT No.4(a) TO 4(d) ARE R/AT. PRABHAKAR LAYOUT CHINTHAMANI TOWN CHIKKABALLAPURA.
5. G.H. VENKATESH MURTHY S/O LATE HONNAPPA AGED 70 YEARS R/AT. RAMAMANDIRA ROAD N.R. EXTENSION, CHINTAMANI CITY.
(NOTICE SERVED ON RESPONDENTS) - - -
… RESPONDENTS This R.S.A. is filed under Section 100 of CPC., against the Judgment and Decree dated 26-6-2013 passed in R.A.No.75/2009 on the file of the Senior Civil Judge & JMFC, Chinthamani, dismissing the appeal and confirming the Judgment and Decree dated 15-6-2009 passed in O.S.No.169/2006 on the file of the Prl. Civil Judge (Jr.Dn.) & JMFC Chintamani.
This R.S.A. coming on for Admission this day, the Court delivered the following:-
JUDGMENT Heard the learned counsel for the appellant and perused the impugned judgment and decree.
2. This appeal is filed by the plaintiff in O.S.No.169/2006 on the file of the Prl. Civil Judge (Jr. Dn. and JMFC), Chintamani (for short, ‘Trial Court’). The appellant has filed this suit for partition against her father and siblings who are respondent Nos.2 and 3 as well as Sri. N.S. Prabhakar, a purchaser, who is now represented by his legal representatives. Apart from the aforesaid, the appellant has also arrayed respondent No.5, in whose favour Sri.N.S.Prabhakar has transferred the suit property under a gift deed.
3. The Trial Court by its judgment dated 15.06.2009 has decreed the suit declaring that the appellant is entitled for 1/4th share in suit item Nos.2 and 3 of the plaint schedule properties and dismissed the suit insofar as item No.1 property. The appellant, being aggrieved by the Trial Court’s judgment, preferred the first appeal in R.A.No.75/2009 on the file of Senior Civil Judge and JMFC, Chintamani (for short, ‘Appellate Court’). This first appeal is dismissed by the Appellate Court by its judgment dated 26.06.2013 confirming the Trial Court’s judgment.
4. The undisputed facts are that the suit schedule properties were the joint family properties of Sri.G.Venkatareddy (the deceased defendant No.1) and his children who are the appellant and respondent Nos.2 and 3. Sri.G.Venkatareddy transferred the suit item No.1 property in favour of Sri.N.S.Prabhakar under the sale deed dated 13.05.1994. In the sale deed executed by Sri.G.Venkatareddy in favour of Sri.M.S.Prabhakar, it is stated that the sale of the suit schedule property is for family legal necessities i.e. to mobilize the funds for providing education to respondent No.2, who was a minor and to discharge other debts of the family. The appellant initiated the suit impugning the sale deed dated 13.05.1994 in favour of Sri.N.S.Prabhakar and for partition of a separate share not only in the property conveyed under this Sale Deed dated 13.05.1994, but also the other properties. Insofar as the sale of item No.1 property in favour of Sri.N.S.Prabhakar, the Trial Court has framed two Issues which required Sri.N.S.Prabhakar to demonstrate that he had purchased the suit item No.1 property for valuable consideration under the sale deed dated 13.05.1994 and that the suit was not maintainable insofar as the suit item No.1.
5. The Trial Court, in answering these two Issues, has found that the sale in favour of Sri.N.S.Prabhakar is for legal necessities. The Trial Court has arrived at this conclusion in the light of the fact that the appellant did not plead in the plaint that her father, Sri.G.Venkatareddy, was given to vices. Further the appellant did not dispute that her brother (the respondent No.2) was a minor as on the date of the sale and he has been educated. The Trial Court, while considering these circumstances, has also considered the indisputable fact that the appellant was impugning sale deed in favour of Sri.N.S.Prabhakar after 13 years. The Trial Court’s finding as regards the sale on suit item No.1 property in favour of Sri.N.S.Prabhakar is based on the cumulative reading of the aforesaid circumstances in the light of the recital in the sale deed and the oral testimony in support thereof. The Appellate Court has concurred with the Trial Court’s findings that the sale in favour of Sri.N.S.Prabhakar is made for legal necessities on re-appreciation of evidence.
6. The Courts below, on appreciation of the evidence on record, have concurrently concluded on a question of fact holding that the sale of the suit item No.1 property in favour of Sri.N.S.Prabhakar under the sale deed dated 13.05.1994 is for legal necessities. This Court could interfere in the second appeal only if it is demonstrated that the finding of the Courts below is based on evidence which could not have been considered or if the finding is ignoring material evidence on record, or if it is established that the findings of the Courts below are opposed to a settled proposition. None of the aforesaid circumstances are made out in this appeal and as such, no substantial question of law arises.
The appeal is accordingly dismissed.
SD/- JUDGE RV