Karnataka High Court
Smt. Kalavathi vs H.J.Gayathri on 8 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:25951
RSA No. 1094 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1094 OF 2023 (PAR)
BETWEEN:
1. SMT. KALAVATHI,
W/O LATE MANJUNATH,
AGED ABOUT 45 YEARS.
2. PUNITH KUMAR,
S/O LATE MANJUNATH,
AGED ABOUT 26 YEARS.
3. SONA,
S/O LATE MANJUNATH.
ALL ARE R/AT SRIDEVINAGARA,
BAGUR ROAD,
CHANNARAYAPATNA TOWN,
HASSAN DISTRICT-573116.
Digitally signed
by DEVIKA M ...APPELLANTS
Location: HIGH
COURT OF (BY SRI LOKESH B.,ADVOCATE)
KARNATAKA
AND:
1. H.J.GAYATHRI,
W/O H.N. SATHYANARAYANA,
AGED ABOUT 44 YEARS,
R/AT SRIDEVINAGARA,
BEGUR ROAD,
CHANNARAYAPATNA TOWN,
HASSAN DISTRICT-573116.
2. BAGHYAMMA,
W/O RAJAMMA,
AGED ABOUT 40 YEARS,
-2-
NC: 2024:KHC:25951
RSA No. 1094 of 2023
R/AT BENDENAHALLI VILLAGE,
URUDEGERE VILLAGE,
TUMKUR TALUK-572140.
3. LAKSHMI,
W/O VENKATESH,
AGED ABOUT 38 YEARS,
R/AT HOSAHALLI VILLAGE,
MANDYA TALUK,
MANDYA DISTRICT-571606.
4. MADHU,
S/O LATE SHEKAR,
AGED ABOUT 26 YEARS,
URUDEGERE VILLAGE,
TUMUKUR TALUK AND DISTRICT-572140.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 27.02.2023
PASSED IN RA NO.24/2020 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC AT CHANNARAYAPATNA,
HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 20.12.2019 PASSED IN O.S
NO.212/2018 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
AND JMFC, CHANNARAYAPATNA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned counsel for the appellants.
2. The factual matrix of the case of the plaintiffs before the Trial Court while claiming 1/3rd share in the suit schedule property is that the registered sale deed executed by the deceased Manjunatha in favour of defendant No.1 in respect of -3- NC: 2024:KHC:25951 RSA No. 1094 of 2023 suit schedule property dated 08.05.2006 is not binding on the share of the plaintiffs. The plaintiff No.1 contended that she is the wife of Manjunatha and plaintiff Nos.2 and 3 are the children of the said Manjunatha. It is contended that the suit property was granted to one Veerappanaika, father of late Manjunatha. The suit property was granted by Sewage Abolition Board in the name of late Veerappanaika. The said Veerappanaika paid installments to the Government. After the death of Veerappanaika, the suit property is mutated in the name of late Manjunatha. Manjunatha was addicted to bad habits and mentally retarded. The defendant No.1 has got executed the sale deed fraudulently and not paying any consideration. The suit property is an ancestral property of the plaintiffs and plaintiff Nos.2 and 3 are having equal share in the suit property. The defendants appeared and filed the written statement contending that Manjunatha is the absolute and exclusive owner in possession and enjoyment of the suit property. The suit property is the self-acquired property of Manjunatha. The said Manjunatha has acquired lawful and absolute title over the suit property. After ascertaining all the legal rights of Manjuantha, defendant No.1 had purchased the property and she is a bonafide purchaser. It is contended that in order to prove the -4- NC: 2024:KHC:25951 RSA No. 1094 of 2023 factum that it is an ancestral property, no documents are placed on record.
3. The Trial Court having considered the pleadings of the parties, framed the issues as to whether the suit property is an ancestral property and whether the plaintiffs are entitled for 1/3rd share in the suit schedule property and whether the sale deed executed on 08.05.2006 is a fraudulent document and whether the defendant is a bonafide purchaser of the suit schedule property. The Trial Court having considered both oral and documentary evidence placed on record, comes to the conclusion that the property is not an ancestral property and already there was a sale and fraud has not been proved and the contention that sale is not binding on the plaintiffs is not accepted and dismissed the suit.
4. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed in R.A.No.24/2020. The First Appellate Court having considered the grounds urged in the appeal memo, framed the points for consideration as to whether the Trial Court committed an error in not accepting the case of the plaintiffs that the property is an ancestral property. Having re-assessed both oral and documentary evidence placed on -5- NC: 2024:KHC:25951 RSA No. 1094 of 2023 record, the First Appellate Court comes to the conclusion that a person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in co-parcenary property and the same is not found and the same has been discussed in paragraph No.25 of the judgment of the First Appellate Court considering Article 221 of the Hindu Law and comes to the conclusion that the property is not ancestral property as contended by the plaintiffs and dismissed the appeal.
5. Being aggrieved by the said judgment and decree of the First Appellate Court, this second appeal is filed before this Court.
6. The main contention of the learned counsel for the appellants is that it is an ancestral property and not the exclusive property of Manjunatha. The learned counsel also contend that defendant No.1 taking advantage of the condition of Manjunatha, who is a habitual drunkard, fraudulently obtained the sale deed and hence this Court has to frame substantial questions of law admitting the second appeal.
7. Having heard the learned counsel for the appellants, it is the specific contention of the plaintiffs that the property is granted in favour of Veerappanaika and the property devolved -6- NC: 2024:KHC:25951 RSA No. 1094 of 2023 upon Manjunatha and hence it is an ancestral property. To prove the contention that the property is an ancestral property, no material is placed before the Court and admittedly, the property was granted in favour of Veerappanaika and the same devolved upon Manjunatha. The contention that it is an ancestral property is not established by the plaintiffs and the same is taken note of by the Trial Court. In order to prove the contention that the sale deed is obtained fraudulently, nothing is placed on record and it is also an admitted fact that the property was sold by Manjunatha in favour of defendant No.1. The Trial Court also taken note of the judgment of this Court in the case of MUNIYAPPA v. RAMAIAH reported in AIR 1996 KAR 321, wherein discussed with regard to co-parcenary property is concerned and in the absence of any material before the Court that the sale deed was obtained fraudulently, the First Appellate Court in detail discussed the material on record and having taken note of, particularly scrutinizing the admitted fact in paragraph No.25 taken note of Article 221 of the Hindu Law and comes to the conclusion that that ancestral property means the property inherited either movable or immovable property by a male Hindu from his father, father's father or father's father's father is ancestral property. A person inheriting property from -7- NC: 2024:KHC:25951 RSA No. 1094 of 2023 his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his son, son's son and son's son's son. The First Appellate Court taking note of the said fact into consideration comes to the conclusion that the property is not an ancestral property and the same was sold by Manjunatha during his life time. When such reasons are given by both the Courts, I do not find any force in the contention of the learned counsel for the appellants that both the Courts have committed an error. When such being the case, I do not find any ground to invoke Section 100 of CPC.
8. In view of the discussions made above, I pass the following:
ORDER The second appeal is dismissed.
Sd/-
JUDGE MD List No.: 1 Sl No.: 100