Venkatappa And Ors vs Smt Venkatalakshmamma & Anr on 2 November, 2009

[Cites 1, Cited by 0]

Karnataka High Court

Venkatappa And Ors vs Smt Venkatalakshmamma & Anr on 2 November, 2009

Bench: A.S.Bopanna

 

 

IN THE HIGH COURT OF'KARNATAKA AT BANGALORE

"DATED THIS THE 27TH DAY OF MAY 1998

B E F C R E

THE HON'BLE MR.JUSTICE T.N.vALLINAYAeAma@7E.",

R.S.A.No.1&n]V1995

Between :

1.' Venkatappa \ 9. '. *
V S/o. Chikavenkatasomappa-V
major _ "2 V

Agriculturist

2. H.V. Shriniﬁasafs _:"

S/o. Chickvenkatae¢maﬁ§a:,d;

~major V V
Agriculturist-,f

Both réeiézhg at ﬁdﬁnéhahaiizv.

Vi11age;_KasabeQﬂ¢bli:'av
Chickbailapur Talﬁk Sq: ,_
(E§_Sri;'H9S.RaVi.'AdY.)g

and 5-2. "
1} :smt.nVehkataiaﬁehmama
'_W/b. Honnappa "
major ' " i

S/o.'C3ickvenkatasomappa

V major
'Kégficulturist

ajiéy. H.V. H nnanpa

id, 3553 ate residing at

Hqnnenahalli, Kasaba Hobli
Chickballapur Taluk

'(E§ Sri. M.S. Gopal for R1 & R2)

.. Appellants.

.. Respondents.

R.s.A. 1s_fi1ed u/s.10O of CPC., against the
judgment and decree dated 5.10.1993 passed in R.A-'
No.44/1991.on the file of the'Civ11 Judge and Asst.
Sessions Judge. Chickballapur, dismissing the appeal
and confirming the Judgment and decree passed by the

4 MunsifE,'Chickbal1apur in O.S.No.212/1989 dt.4.10.1991-

on 06



i
5

.4' *_\_:._--E.' "_-" 2.- ;:»_ ::

S

 

 

.4
'ﬁﬂ

tin respect of the brqmertiesqdeeeribed as iteme 9

04492 ....

This appeal coming on for ordere this day,

the court delivered the.following.

JUDGMENT

The appellante are the p1aihtiff$jifahd,2fih_§ 0.3. 212/89, a suit for dee4lvaf'etien gift deed executed Vbifzthefvfathefjxef"Wthe plaintiffs and defendant$mf2z_ahd 3"~byV_th:kka venkataewamappa ih"fevpur ef the first defehdant to 14 of the hteinttscheﬁule eﬁd fer partition_of T the suit ©fe§ettie3;g5jhe_euit was partly decreed by the -------- ~ttiei. spurt gﬁrehtiné 'to each of the plaihtiff'ahdfseeehdyeefendant 1/3rd share in 8y.- Noe. h3l}2,"2e%2'ehdr$§ against defendante 1, 7 and 8 and hqhse pottien of item 18 of the plaint h%_ eohedqle and the feet of the claim was diemissed, "Af11e"».bf the ' §h».apﬁeelfégaih by the plaintiffs, the appellate ceurtmeehfitmed the finding of the trial court ahd diemieeed the appeal in R.A. 44/91 on the civil Judge Chikkaballapur.

ff_A9etieved by the same, the plaintiffs are before , u.d this court, /7 'bearing Sy.Noe.

2. One Chikka Venkataewemappa was the father;ofT 'plaintif'1'e 1 and 2'and defendante 2 Chikka Venkataewamappa uinherited the: lahde*ﬁ Honnenahalli ( items 1, 2, 3 and 2) and $y@No¢ »»r 53 of Manchenabele (item 8), Venkateewemappa purchased "eome more"prepertiee out of' the income ¢eerned"'tron',theadanceetral properties and gifted the euitritehe 9 to 14 in favour of Avthe _~:%:rstn;,'5¢f§na$nt, hie daQ9ht9V"i"fi§Wé { wife e% the eecond defendant). The gift 'heed §££a¢g§f;§§nfn§p "binding. on 26w4w1?62"the;pie§ntiffe and the eecond defendant sold the lend e§}ﬁo;dr5§Yt.' He purchased another property in"$y;No:t:=ﬁ);é§/1 (item 16). On 18~1;#1948, 'chikkad Venkataewamappa mortgaged )SytN0}if:121/2 end 120/1 (item 12) and purchaeed h_$9,No')_j2S7t{n when the share of the property wee not' diven, the euit came to be filed. The f firet defendant by producing the gift deed that )'dtheo properties are self acquired properties of ), the fdonor, .

Chikka Venkataewamappa and h"-uwptopertiee did not form part of the properties ddiﬂallotted to Chikka Venkataewamappa in the 31/2., 32/1, . :3_oz3__ and"'2é§)f2V"'-of «The* eaid3Athikke)W these i 2 §

5. 1 ii ., *'J":l\ «.4 m partition between hie brothers. She further contendedithat S)/.No. 125,/2, 15th item wafs purchased by her, her maternal uncle Channaebefa and Chikka Venkateewameppa.

adverse poeeeeeion was raised.

3. Defendants 2 and 3 reeieted the edit.f§f-nf partition raising the.plee that there wee a "wili dated 7w10w1956 under whibh_ the nfetheri has bequeathed the propert§~inheritedmbV,him tot both plaintiffs 1 and 2 and defendente 2 to 3. On the terms of the mill, thete wee e maftition in the family immedieteiytefterW,tMei execution of the will, einee then the reepeetive parties have been in their. noeeeeeion";and[ enjoyment of their' reepective"ehareeQf.The§*é1aimed that they have no interest in ,item_ No. \ 6. Items 3 to 5 "*,Y¢Dfe$ent iteme"9mto'114 Item 7 hae been given it to" the ehere of the second defendant; item 8 was i§19én.tc the share of the first plaintiff and item 15 'whieh is in fact 8y.No.' V*ourcheeed jointly by defendantwl, her uncle and "Tvenketaewamappa and it wae under her poeeeeeion. f'Iteme 16 and 17 belong to Channappa; item 19 was \\ 7

-.5...

Hellotted to the first plaintiff in the partition.\ Even the" piéai;¢f5,' 124/2 wee u'",fend «.5 W Item 20 was equally given to the ehare of the Plaintiff and the second defendant; item 21 purchaeed by the second defendant out of his cum =~ funds. Item 22 west the brothenfk Venkataewamappa, mother iof the first defendant, The movablee belonging to' Ithef' therefore none of the suit propertiee were lieblei for partition. The triel court found that the income of the joint femily %%QQ6®?iQ%'w&%r%% not sufficient to purchaee"eomeihmot§,;teme of the properties endV henO§H_ﬁh§leQ$f§mu;ﬁo favour of defendantwl h d if ,wasf; and ﬂbinding on the plaintiffe;'Vihe*will=ma§xdiebeiieved ae well ae the partitioh€"1,Qltimetely,_the euit wee\decreed declaring each of thekfbleintiffe 1 and 2 and defendantjz'_weeirentitledJ to 1/3rd share in the lande in $}fNe.r_31/2,°é6/2 and 53, apart from " house item No} "18w~"

_ éif' The eppellete court confirmed the finding that Chikke Venkataemamappa was not in poeeeeeion enjoyment of the sufficient nucleus to 'nurcheee eome more properties out of the earnings h"~_ l§, A'of the ancestral propertiee of the'gift ideed 'is ' V " V/ .. , . I was , V 'mother,i*endfA .-\,._.'-'..;.~.__-.3 7 .;:-v» ' the theory of partition and validity of the will; $016 ..

binding on the plaintiffs. However, rejecting the appeal was dismissed.

5. In this eecond appeal, it ie_contende¢.that there are eufficient and adequate? nucleus" tcw»a acquire some more properties and the gift is net' valid. Though three queeticneawere raised ty the appellants in their m3mOrandM$®p%x_9YOﬁwd%'_9oﬁly one question was taken aeieghetantial»queetion of law by this coqrt. ~" Heweyer; hat [the time of hearing, tW%i%ﬁ§é?i9h§ §?x1éW{ttamee were:

1) _ Whether ____ h5ﬁteraht cf; the" decree of partition in all iteme except items 9jto_14;;i$xcerreet?_ ixlhetherA:.ijVt.he--~._:t5'i«a.V~intiff is entitled to 2Tth@v decree 'in respect of the properties, including items 9 to 14?

iQ61Vh"The partiee advanced the arguments on the above ieeﬁeej /a,e Heard the reepective Counsel. *7 ..

8. So far ae the gift deed ie concerned, it has been found that as a fact 'by the courts beleﬁ, that gift deed is valid, ae the gift was medeiinLf* 1956 and the euit was med in 19eo..~_4'::'* finding arrived at by the._ oog+£e»fp¢1o@, concurrently on the basis df gtheA7.evidenee_*~A available cannot be eeeailed. "_ The tgiftf wee registered, the revenue records.were'gmuteted ion the basis of thﬁ Vgift ;deéd;\gﬂ;11 i980 not a little finger wee raieed be the oieintiff against the gift deed, =theirr"aoguieeeence;Tbre~euppoeee thee concept er giftg eﬁen e edit ghellenging the gift is cleerir berred bf time} "V There is not even ailegatien that the edit ie in time nor they had knowledge of the gift only at a latter point of time. 'Not_onlr the gift hae been proved but also the, gift. hes fbeen acted upon. Therefore, athe ere§er for deeieretion that the gift ie not . #glid¥oenneta be countenanced. Consequently, the finding the: the gift ie valid in respect of 'niteme.9itoii4 hee to be confirmed and the eame is _:fAﬁ,hevebyvconfirmed.

g,_ .w8 W 9" There are 22 items mentioned in Schedule A. Out of which, a decree has been granted vin_ respect of item No.1 (Sy.No. '31/2); .itemVftda (8y.No. 26/2); item 8 ($y.No. 53) and item dié"c houee at Honnenahalli village._ Items 9"tef;4"aye, excluded which are lands in Sf,Noe.dv30/3}"3i7ii wad 30/4, 120/2, 121/2, 5/4 and_ﬂ32/I,'* Agkrvigatiyi . pointed out, items 2 to 5 are items 14;*§;'iQ and

11. so what has net been Qtéﬁiéd by the C6QTt$ below is item 6 i.e.,d6h§un?ﬁejini34?46? item 7 26/2; 30 guntaev in item a;_;o guptas in ey.No. 53; item 15_e§}ﬂ3i2ofi, item .ie;* es guntae in 29/1, item i7 ggié in ehickbailabdr teen; item 18 portion" ofiﬁgiteiat Honnenahaiii: item 21 vacant eite in Honnenahalii §;iiggé and item 22 portion of eite at Honnenahaiii Qillage, that is to eay, iteme 6, 7, 8;_iS to if and 19 to 22. Coming ton ithe above items, the following 'finding rendered "b7 :the Lriret appellate court is neceeeary,to be recoidedini tit is very difficult to accept r tanoibletheeidence regarding the partition for 4" mere than 25 yeare back. .1 have to believe" the i_'eVidence of D.Ne 1 and 2 and I am relying upon R"=u their evidence on the principle that nothing is id'._ ﬂ better than eomething." "Thus, in View of the / /' \Al "-9 ...

admission by the defendant, it can be said that there was nucleue at the hands of Chikhae Venkataewamappa.

10. A will dated 7--~1o-1%e whee;.pr.oduc_e{:jf'C_j\.eer,hA.V the courts below have diebelieved the will. tIt'%ri ie also eeen that if the twill is "eechewedg ne oral partition could be belieged. Apart from the evidence, there was a partition of the properties ae per the will, under the will é house in item 8 was given to thé.$habeNof:%l%ih£i%ffii a land was given to piaiﬁejfﬁ gNeJé;i a land and house was given to iqeeeeeeﬁeeaél house evwae 'given. to defendeﬁ£¥3;f{_ eat iﬁthe iﬁhiéd defendant died without married? Vfhe appellate court found that there waa,nb_direct"e§jdence on the partition of theeeipropertieet Plaintiff No.2 ie eaid to have icompromieedxwith defendants 1 and 2, but the '[email protected] to be 'accepted. The defendant in the written etatement contended that f they were Vnot aware of item 6 of the euit ",propertiee.

l( But the appellate court found that i.ino"eVidence.wae adduced by both the parties and i"'lie%tract of the properties was not produced. Therefore, item 6 hae been_ excluded. But the wlo...

appellate court also confirms that items 3 to 5 have been repeated as items 9 to 11 and thisl factum has not been denied by all the partieelﬁinflv particular the plaintiffs. The defendant é1ai@ea*"

that item 15 was purchased by defendantel, here uncle and Venkataswamappa. The property =e%tract Vtn of items 16 and 17 are also not,produced;d item "

21 was purchased by second defendanthwheﬁsheu was not the manager of~ the< joint ;family; "it is"

alleged; Thus, the appellateﬂ court 'disbelieved the evidence and found that item l9 mas not given to the shaﬁe of thejfirst plaintiff and item 20 was equall; divided betﬂeeh the vbrothers. The mropertrWl"eatrae§" lof' item" 22 has not been produced; if'ig ﬁe belenoino to the joint family; since it is belonoing to the mother of the first defendant and" she is not a coparcener. °eoﬁ£eﬁ£i¢n".pfA the' defendant that the first "i¢éf¢ha§n§V7 uhas perfected title by possession _in respect of the properties was fVrightlQ7adisbelieved lby the appellate court and "gtheory of adverse poeseesion was not accepted. i"'lmtogether, 6 do while taking into consideration points 1 to 6 the appellate ~ court has not concentrated» upon the above items and did not The adverse M ....11....

give a finding ae to what happened .to those items. It hae dealt with only item 6 saying thetn there ie no such item and item 21 belongs tc the rg mother. There is no finding as to whethef:uitemei° 15 which is 'said to have been puf¢heeedehY_ Venkataewamappa also is availabie' tot Qpeftition ,_? or the plaintiffs are entitled to.the_ehete'in. that item aleo.

11. A reading of thé--Qritten statement filed by defendants 2 and 3 dieeloeee.the3f9iiowing:

"The defendente"eve*not;eware of the sixth item and they do not ciaim any intereet'therein;v z t 2 Items 1 to ewdo'-not,dtotm a Dlot of land as alleged _ the fifet item of land allotted to the Vdehafea of "the eeoond plaintiff during the Ebartitien _ referred to above and he ie in exclusive e~eeseeeeion and enjoyment of the same. . Iteme 2 £§*é except 6 guntae of land in the 4th i7ditem_ and iteme 12 and 13 are gifted to the first x"nfdeFendant. The 6 guntae of land in 4th item x*eﬂ:ai1otted to the share of the eeoond defendant end "we "é it "is in his exclusive possession and enjoyment. Q1 'Vbropertieelf M12» The defendants are not aware of the 6th item and they do' not claim any intereet therein. The, correct survey number of the land ldeecribedeleeld*V theirv item is 126/2 and ie allotted to the ehere' V of the eecond- defendant.

allotted to the ehare of the hlaihti¥Fs_lteme'?¢_'~h 11 and 14 are rebetition of.ltemep3'to 5uendi«i4; The _correot survey number of 15th 1t¢msf:s°;éé)2 and the eame ie puroheeed by the first defendant, her uncle Channapbe and veﬁggeagﬁgﬁagpa end said property nowv b810ﬂ9e»we§'vth9_:%il§th:detendent Channappa and ltgﬁe lhQ€ﬁheirAlﬁbe$eeeion. The 16th iteﬂu b§l§ﬁ§e=:£5 lone dghennappa eon of Channareyebpe} lhe'i?th iteﬁ"eleo belongs to the said Channarayep§al7 he hufehaeed it under the registered sale 'dé¢d,f;' The boundaries of 18th item ere not correct; The correct house list and ﬂthe numbere of the broperty; the boundaries of "th1e"LerQberty"jncludee the eite purchased by the ~ eeoohd defehdent from one Salar Sab and the purchased by L him from H. dﬁyenketaeemappa.. The eharee A of the houses l_lellotted to the second plaintiff and the third .h*:_de¥endant_aleo inoluded; The 19th items ie ld','7{purchaeed by Chick Venkataewamappa and allotted .,., _ L . ' I Thel_8thf"lteet'waeo _, Hd igi /.

to the first plaintiff in the ...13....

28th "item is allotted 'to the share of the plaintiff and the eecond -defendant\ in Meduelre proportion. l The' 21st litem ie purchaeed be ﬁﬁehf 7 second defendant out of hie own fdnde and wit iie Mu in eelf acquisition of the sec§nd,d§f¢ﬁdéﬁt}"»r5§f_i 22nd item /belonge to one Venketamme, the motherl of the plaintiff, The mothere wee: livindlreith defendants 1 and 2., "A few orooertiee available for partition were in" fact ipartitioned by the father of the plaintiffs age defendants 2 and 3 himself as aforeeaid during hie life time."

12. In the light of the above statements made by defendente' 2lc%nd"_é;i"the' following picture emerges: g C1)V$ikiguntee in item 4, item 7, item 8, and iteme 19 end 20 are the subject matter of .*Dartition.*n Once "the """ question of partition ie lddiebelieeeds these items ehould be made available fimpediment for granting a decree in I automaticelly for partition among the parties. In respect of item 6, the defendants do not claim .f= any interest at all. Consequently, there is no 3 respect of item 6. so far ae item 15 is concerned, it ie claimed that it ie purchased by defendantwl and partition. Thee W14...

items 16 and 17 are purchased by some other Channappa and not defenda \ ie produced to establish that claim and» ntel. But no 'document the,'-

appellate court 'has not even coneideréa ,?hie*d"*"

aepect at all. So far as item 24 1s"¢¢né§rﬁed; again it is claimed that itC1ie~,#urchaeed*nbyw»d defendantwz and item 22 belongs to thefmothergu ' But no documents were produced to proue»the7ahove aeeertion and by noW'iP i$"hcr mien?' ae"»tei the mother is alive or hdead}_§in any event, if the mother is deadgv the "property igégﬁﬁ" diVi3ible among the tnﬁ§§}a§ng and even it it is otherwise, ultimatelY¥ the orcperty nail come to the parties herein}

13. The r;nd;h§_5é the trial court alone, simply because a sale deed stands in the name of the iheecondi"de¥endantiW it can be concluded that the llacduieitionVcan be made by him alone, This conclueioﬁfifcrimag facie not correct _and not jgeuetainable as it ie the 'specific case of the 'V:plainti¥t that the eecond defendant was managing 'the.croperty after the demise of the father. It h"-u lg one thing to say that Chikka Venkataewamappa V"w,[:4 did not have ancestral nucleus to purchase the I' I ...15w properties which were gifted away. But another thing to say that the properties left by "Chikge; Venkataswameppe is not enough to éenebieniw acquisition of some other properties. Ifg1reeiiy"ic hthesey acquisitions are made _out of £hé5§;%£e§, property, naturally one would bexpeot tthet"'the_*~A properties were purchased only in the name of the wife, the donee and not otherwiseﬁ,_Therefore,' the finding rendered by the"triel'x¢ourt'"is" not sustainable. So far as item 15 is Concerned, a c.

lukewarm approach has "been "made gbyt the' trial . court and no tindine is rendered as to what has .5 happened to the shereiofjuenhateswamappa who is admittedly oney ﬁiofibwﬁhe iwburchasers. The irresistible'£nferenee is that this property also belongs te_"VVenketeswemeppa and the first defendant was'.merely added as a purchaser. In "rhe"a5séhcé»gr any biausible evidence adduced by ithetfdefendent ton whom the burden is to exblain the seleideedi it has to be oonstruedi that this 'Vpropertyo is also available for division to the 'Vissues of Chikka Venketeswamappa. The trial it.oourt5 also has considered items 16 and 17 belong Vd"t_to5one Channappa, who is not' before\ the court. h'.[:ﬁ If Channappa is to be the person, why the.first W16...

defendant should take the reeponeibilitye of finding- out. thate the 'property is belonging be. eome other person who is not concerned with 'theb 7 family. nsuch a plea'ie vaguely raised nitheuﬁ"

any proof. On thie ground of vegueneeehelone endo in the absence of any posi;ive= defence" 'on'%e reeistance by the defendants who do not eiaim an} exclusive righte over these iteme}_theee éteme tehould be also made peftible}*dd

14. In the light of the eboveidiecueeion, I find that the pIeintiff$ha{§Jenfitied"Eo 1/3rd share each in ali the pvopef£iee;~exeebt items 9 to 14. The tfiei"--eouvb§"ie'ddivebbed to draw up a preliminafﬁ deofee =in4 the. above' terme; The second appeal 1s_aL1owed and-accordingly_d&w¢aewd

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