Karnataka High Court
Sri S Sathyaprakash vs Sri. M.S. Shivanna on 20 April, 2017
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
RSA NO.897/2016 (Par.)
BETWEEN:
SRI S. SATHYAPRAKASH,
S/O. M.S. SHIVANNA,
AGED ABOUT 50 YEARS,
R/AT NO.4/3, 1ST CROSS,
MUNESHWARA BLOCK,
PALACE GUTTAHALLI,
BENGALURU-560 003
... APPELLANT
(BY SRI PRASANNA V.R., ADVOCATE)
AND :
1. SRI M.S. SHIVANNA,
S/O. SHIVARUDRAIAH,
AGED ABOUT 77 YEARS
2. SRI BASAVARAJU,
S/O. SHIVARUDRAIAH,
AGED ABOUT 64 YEARS
2
3. SRI SIDDARAJU,
S/O. LATE NANJUNDAIAH,
AGED ABOUT 39 YEARS
4. SRI SATEESH,
S/O. BASAVARAJU
AGED ABOUT 31 YEARS
5. SRI SHASHIDHARA,
S/O. BASAVARAJU,
AGED ABOUT 20 YEARS
RESPONDENT NOS.1 TO 5 ARE
RESIDING AT MARANAYAKANAPALYA,
DEVARAYAPATNA POST
KASABA HOBLI,
TUMAKURU TALUK
TUMAKURU DISTRICT-572 104
6. SRI MANJUNATHA,
S/O. VEERABHADRAIAH,
AGED ABOUT 64 YEARS,
R/O. J.C. NAGAR, II CROSS,
WEST OF CARD ROAD,
BASAVESHWARA NAGARA,
BENGALURU-560 079
7. SRI S. RAJANNA, S/O. LATE SHIVANNA,
AGED ABOUT 74 YEARS,
R/AT ARALUR BYRASANDRA,
KYATHASANDRA POST,
TUMAKURU TALUK,
TUMAKURU DISTRICT-574 104
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8. SRI R. NAGARAJU,
AGED ABOUT 55 YEARS,
PROPRIETOR,
BALAJI SHAMIYANA,
R/AT 1ST MAIN ROAD,
DEVARAYAPATNA NEW EXTENSION,
DEVARAYAPATNA,
TUMAKURU-572 104
9. SRI K.R. NIRANJANAIAH,
S/O. RUDRAIAH,
AGED ABOUT 69 YEARS,
R/AT 3RD MAIN ROAD,
SIDDAGANGA EXTENSION
TUMAKURU-572 101
10. SRI GOLLALLAIAH,
S/O. DODDAVEERAIAH,
AGED ABOUT 60 YEARS,
R/AT 1ST MAIN ROAD,
DEVARAYAPATNA NEW EXTENSION,
DEVARAYAPATNA,
TUMAKURU-572 104
...RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED
U/S.100 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 10.02.2016 PASSED IN R.A.
NO.76/2014 ON THE FILE OF THE PRL. DISTRICT
AND SESSIONS JUDGE, TUMAKURU, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 06.08.2014 PASSED IN
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O.S.NO.43/2007 ON THE FILE OF THE PRL. SENIOR
CIVIL JUDGE AND CJM., TUMAKURU.
THIS APPEAL COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
Appellant filed a suit for partition in O.S.No.43/2007 on the file of Principal Senior Civil Judge and C.J.M. at Tumakuru and the suit came to be partly decreed by its order dated 06.08.2014. Against which, appellant filed an appeal in R.A. No.76/2014 on the file of Principal District and Sessions Judge at Tumakuru which also came to be dismissed confirming the order passed by the trial Court. Being aggrieved by the concurrent findings of the Courts below, the appellant is before this Court. 5
2. Plaintiff and defendant Nos.1 to 7 constitute an undivided Hindu joint family. Defendant No.1 is the manager of the family. Defendant Nos.1 to 3 are brothers. One Shivarudraiah is father of these defendant Nos.1 and 3 and one Nanjundaiah. Plaintiff is the son of defendant No.1. The 4th defendant is the son of Nanjundaiah. The 7th defendant is son of defendant No.2 and defendant Nos.5 and 6 are the sons of defendant No.3. All were living in their joint family. Defendant Nos.8 and 9 are purchasers of the suit schedule property and from defendant Nos. 8 and 9 defendant Nos.10 and 11 have purchased the suit schedule property.
3. It is the case of the plaintiff that the suit schedule properties are ancestral property, in which, he has got a share and hence, the sale deeds executed 6 by grand father-Shivarudraiah is not binding on him and he is entitled for equal share, which is not in dispute.
4. Defendant Nos.10 and 11 contended that the suit schedule properties have been sold by defendant Nos.8 and 9 through a sale deeds having signatures of said Shivarudraiah and his sons. Under this circumstance, defendant Nos.10 and 11 submit for dismissal of the suit. In support of their contentions, the defendants got marked Exs.D1 to D9, namely; two Sale Deeds, Copy of Sale Deed dated 07.09.1991, Form 15, Form 16, Copy of Tax Paid Challans, Form 3 and Certificate for obtaining loan in Siddaganga Urban Co-Operative Bank Ltd., respectively, before the trial Court.
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5. On the basis of the pleadings, the trial Court framed six issues. Of which, issue No.1 is - "whether the plaintiff proves that he himself and the defendants 1 to 7 constitutes members of Hindu undivided joint family?" and the said issue was answered in affirmative by the trial Court. Issue No.2 - "Whether plaintiff proves that the suit schedule properties are the joint family and ancestral properties of himself and defendant Nos.1 to 7 and they are in joint possession of the same?" was partly answered in the affirmative. Issue No.3 - "Whether 11th defendant proves that the sale deed dated 26.05.1986 is binding on the plaintiff?" also came to be answered in the affirmative and the trial Court decreed the suit in part in favour of plaintiff and it was confirmed by the first Appellate Court.
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6. The ground urged by the plaintiff in this appeal is that the trial Court committed an error in holding that the plaintiff is not bound by the sale deeds executed by his grand father as per Exs.D1 and D2 on 26.05.1986, since, he is not a signatory to the said sale deeds and it is submitted by the learned counsel for the plaintiff that though the plaintiff was aged about 19 or 20 years at the time of execution of sale deeds, he was shown as minor.
7. Learned counsel for the defendants submits that it is apparent on the face of the order that defendant Nos.1 to 7 have sold the properties in favour defendant Nos.8 and 9 for the family and legal necessity and the plaintiff has not challenged the same within the period of limitation, thereby the sale is binding on the plaintiff.
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8. Heard the learned counsel for both the parties and perused the records.
9. I have gone through the submissions made by the learned counsel for both the parties and also the discussions made therein, more particularly in respect of issue Nos.1, 2 and 3. Issue No.3, namely; 'Whether 11th defendant proves that the sale deed dated 26.05.1986 is binding on the plaintiff?' has been held against the plaintiff. For the said purpose, the trial Court has referred the evidence of plaintiff himself, who has been examined as PW1, wherein, he has deposed that after the sale deeds were executed in 1986, none of the members of the joint family including defendant No.1 and his brothers had raised any objections and it has been referred in Para No.20 10 that "zÁªÁ ¸ÀévÀÄÛUÀ¼É®èªÀÇ ªÀÄÆ®vÀ: ¤ªÀÄä ªÀÄÄvÁÛvÀ ¹zÀÝ«ÃgÀAiÀÄå¤UÉ ¸ÉÃjzÀ ¸ÀévÀÄÛUÀ¼ÀÄ JAzÀgÉ ¸Àj." and in the cross-examination "²ªÀgÀÄzÀæAiÀÄå£À 4 d£À ªÀÄPÀ̼À ¥ÉÊQ AiÀiÁªÀÅzÉà «ªÁzÀ dgÀÄV®è JAzÀgÉ ¸Àj." In Para No.21 the trial Court observed the reference made in Ex.D1-Sale Deed, that "DzÁV £ÀªÀÄäUÀ¼À zÀgÀzÀÄ ¤«ÄvÀå CAzÀgÉ £ÀªÀÄäUÀ½UÉ ªÁ¸ÀPÉÌ ªÀÄ£É PÀnÖPÉƼÀî®Ä ºÁUÀÆ ªÉÄÊ£Àgï ªÀÄPÀ̼À ¥ÀÄgÉÆéüªÀÈ¢Ý PÁAiÀÄðUÀ½UÉ CvÀåªÀ±ÀåPÀªÁV ºÀt ¨ÉÃPÁzÀÝjAzÀ µÉqÀÆå¯ï ¸ÀévÀÛ£ÀÄß ¤ªÀÄUÉ F PÀæAiÀÄPÉÌ." and that "§¸ÀªÀgÁdÄ ªÀÄvÀÄÛ CªÀgÀ ªÀÄPÀ̼ÀÄ C£ÉÆåãÀåªÁVgÀÄvÁÛgÉ JAzÀgÉ ºËzÀÄ, CzÉà jÃw ¤ªÀÄä vÀAzÉ ªÀÄvÀÄÛ ¤ÃªÀÅUÀ¼ÀÄ C£ÉÆåãÀåªÁVgÀÄwÛÃj JAzÀgÉ ºËzÀÄ. ¤ªÀÄä vÀAzÉ ªÀÄÄvÁÛvÀ ¤ªÀÄä aPÀÌ¥ÀàA¢gÀÄ ªÀiÁrgÀÄvÁÛgÉ J£À߯ÁzÀ PÀÄlÄA§ ¤ªÀðºÀuÉAiÀÄ°è AiÀiÁªÀÅzÉà ¯ÉÆÃ¥ÀzÉÆõÀUÀ¼ÀÄ £ÀªÀÄUÉ PÀAqÀħA¢®è JAzÀgÉ ¸Àj. ¤ªÀÄä vÀAzÉ ªÀÄvÀÄÛ ¤ªÀÄä aPÀÌ¥ÀàA¢gÀÄ K£Éà ªÀåªÀºÁgÀ ªÀiÁrzÀÝgÀÆ CªÀgÀªÀgÀ PÀÄlÄA§ ªÀUÀðPÉÌ C£ÀÄPÀÆ®ªÁUÀĪÀAvÉ ªÀiÁrgÀÄvÁÛgÉ JAzÀgÉ ¸Àj." By referring the evidence of PW1 and contents of Ex.D1, the learned trial Judge has come 11 to the conclusion that the sale deeds executed by the father of defendant No.1 has not been contested by any of the family members of the plaintiff and it is observed that the sale deeds were executed for the benefit of the family, which includes the plaintiff also. Plaintiff was aged about 20 years at the time of execution of sale deeds and he was referred as 17 years and declared as minor and it is presumed that the grand father of the plaintiff and the father of defendant Nos.1 to 3 sold this property for the benefit of entire family. Therefore, the trial Court is justified in partly decreeing the suit. Further, the reasons assigned by the first Appellate Court is also justifiable in the light of the oral and documentary evidence adduced and produced therein. I do not find any good ground to interfere with the orders passed by the Courts below. Hence, without issuing notice, this 12 appeal is liable to be dismissed and accordingly, it is dismissed.
Sd/-
JUDGE SBS*