Karnataka High Court
Sri Mahesh vs Smt Ganganamma on 13 September, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.279 OF 2020 (PAR)
BETWEEN:
SRI MAHESH
S/O LATE CHANDRAIAH
AGED 48 YEARS
RESIDENT OF
KOPPADAPALYA
SAMPIGE HOSAHALLI MAJARE
DANDINASHIVARA HOBLI
TURUVEKERE TALUK 572227
TUMAKURU DISTRICT
...APPELLANT
(BY SRI.JAGADISH BALIGA M, ADVOCATE)
AND
1. SMT.GANGAMMA
AGED ABOUT 53 YEARS
W/O PANCHAKASHARAIAH
RESIDENT OF KOPPADAPALYA
SAMPIGE HOSAHALLI MAJARE
DANDINASHIVARA HOBLI
TURUVEKERE TALUK - 572 227
TUMAKURU DISTRICT
2
2. SMT.SHANKARAMMA
AGED ABOUT 70 YEARS
W/O LATE CHANDRAIAH
RESIDENT OF KOPPADAPALYA
SAMPIGE HOSAHALLI MAJARE
DANDINASHIVARA HOBLI
TURUVEKERE TALUK 572 227
TUMAKURU DISTRICT
3. SMT.RUDRANAMMA
AGED ABOUT 43 YEARS
W/O MAHADEVAIAH
RESIDENT OF ATTHIKATTE
KADABA HOBLI
GUBBI TALUK - 572 216
TUMAKURU DISTRICT
4. SMT.CHANDRAKALA
AGED ABOUT 40 YEARS
W/O JAYANNA
RESIDENT OF K. RAMPURA
KADABA HOBLI
GUBBI TALUK - 572 216
TUMAKURU DISTRICT
5. SMT.BHAGYODAYA
AGED ABOUT 38 YEARS
WIFE OF NAGESH
RESIDENT OF BANAVARAM
HEBBUR HOBLI
TUMAKURU TALUK - 572 101
TUMAKURU DISTRICT
.....RESPONDENTS
(BY SRI.M.B.CHANDRACHOODA, ADVOCATE FOR R.1;
SRI.N.S.HIREMATH, ADVOCATE FOR R.2 AND R.4;
R.3 AND R.5 ARE SERVED AND UNREPRESENTED)
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THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 10.04.2019 PASSED IN R.A.NO.82/2016
ON THE FILE OF THE SENIOR CIVIL JUDGE, GUBBI,
DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 02.08.2016 PASSED IN
O.S.NO.163/11 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE AND JMFC, GUBBI AND ETC.,
THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the unsuccessful defendant No.2, who has questioned the concurrent findings of the Courts below, wherein the plaintiff's suit for partition is decreed granting 1/6th share in the suit schedule properties.
2. For the sake of brevity, the parties are referred as they are ranked before the Trial Court.
3. The genealogical tree of the family is as under; 4
Chandraiah (dead) | Shankaramma (wife) (D1) | ______________________________________________ | | | | | Mahesh Rudramma Chandrakala Bhagyodaya Ganganamma (D.2) (D.3) (D.4) (D.5) (Plaintiff)
4. The plaintiff, who is a daughter of defendant No.1 and sister of defendant Nos.2 to 4, filed a suit for partition and separate possession by specifically contending that suit schedule properties are joint family ancestral properties and hence, filed the present suit.
5. Defendant No.2, on receipt of summons, contested the proceedings. Though defendant No.2 admitted that suit schedule properties are joint family ancestral properties, however, contended that properties standing in the name of plaintiff's husband, which are also ancestral properties, are not included and therefore, contended that suit for partial partition is not maintainable. The mother of plaintiff and defendant Nos.2 to 5, who was arrayed as defendant No.1, has also filed a written 5 statement. She has specifically pleaded in the written statement that suit schedule properties are joint family ancestral properties and she has been driven out from the home and defendant No.2 is guilty of not providing maintenance to her.
6. Trial Court having assessed oral and documentary evidence answered issue Nos.1 and 2 in the affirmative. The contention of defendant No.2 that suit for partial partition is not maintainable was out rightly rejected by the Trial Court. Trial Court was of the view that properties acquired by son-in-law i.e., husband of plaintiff herein cannot assume the character of the joint family ancestral properties. The bald allegation that defendant No.2's father
- Chandraiah had purchased properties in the name of his son-in-law was also negatived by the Trial Court. Consequently, suit was decreed granting 1/6th share in the suit schedule properties.
7. Defendant No.2 feeling aggrieved by judgment and decree of the Trial Court preferred an appeal before 6 the First Appellate Court. The First Appellate Court has independently assessed oral and documentary evidence. The Appellate Court having assessed oral and documentary evidence has also come to the conclusion that there is absolutely no clinching evidence adduced by defendant No.2 indicating that joint family income was utilized to purchase properties in the name of plaintiff's husband namely Panchaksharaiah. The Appellate Court has also declined to accept the contention of defendants that since plaintiff's husband and plaintiff were residing along with Panchaksharaiah, that itself would not establish that acquisition made by plaintiff's husband was also ancestral properties of the plaintiff and defendant Nos.2 to 5. Consequently, the appeal is dismissed. These concurrent findings are under challenge at the instance of defendant No.2.
8. Heard learned counsel appearing for defendant No.2 and learned counsel appearing for plaintiff. Perused the concurrent findings of the Courts below. 7
9. Defendant No.2 having admitted that suit schedule properties are joint family ancestral properties has set up a defence that present suit filed by plaintiff without including properties standing in the name of her husband is bad for non-joinder of all the properties. Both Courts have dealt with this issue and have come to the conclusion that properties held by plaintiff's husband are not joint family ancestral properties. Both Courts have come to conclusion that there is absolutely no evidence indicating that Chandraiah, during his life time, has contributed towards purchase of the properties standing in the name of plaintiff's husband namely Panchaksharaiah. It is a trite law that no presumption can be extended to the properties held by son-in-law. There is absolutely no cogent evidence indicating that family's surplus income was utilized to purchase properties in the name of the son-in-law. The concurrent findings recorded by both Courts are based on legal evidence and in absence of rebuttal clinching evidence by defendant No.2. 8 No substantial question of law would arise for consideration in the appeal.
The second appeal is dismissed.
All pending interlocutory applications, if any, do not survive for consideration and stand dismissed.
Sd/-
JUDGE NBM