Karnataka High Court
K A Seetharam vs Sri Mahabala Bhatta on 23 August, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC:30431
RSA No. 1344 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1344 OF 2019 (PAR)
BETWEEN:
1. K.A. SEETHARAM
AGED ABOUT 53 YEARS,
S/O LATE K ANANTHA BHATTA
2. K.A. KRISHNA MURTHY
AGED ABOUT 49 YEARS,
S/O LATE K. ANANTHA BHATTA
BOTH ARE RESIDENTS AT TALUVE,
MELIGE POST, MATTUR HOBLI,
THIRTHAHALLI TALUK-577443.
3. KAMALAMMA
W/O SURYANARAYANA BHATTA
Digitally signed
by SHARANYA T AGED ABOUT 63 YEARS,
Location: HIGH R/O GADGAL, MAKKIMANE POST,
COURT OF THIRTHAHALLI TALUK-577443
KARNATAKA
4. NARMADA
W/O B.G.NARASIMHA MURTHY
AGED ABOUT 62 YEARS,
EXCISE SUPERINDENT
NO.1133, V.V. MOHALLA,
2ND STAGE, GOKUL EXTENSION,
MYSORE-02
5. SEETHALAXMI
W/O JAYAPRAKASH
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NC: 2023:KHC:30431
RSA No. 1344 of 2019
AGED ABOUT 57 YEARS,
R/O KOKKODU GANAPATHIKATTE
KOPPA TALUK, HIREKUDIGE POST,
CHIKKAMAGALURU DISTRICT-577443.
6. RENUKAMBA
W/O GOPALAKRISHNA UDUPA
AGED ABOUT 55 YEARS,
R/O RANGAPURA,
M.C. HALLY POST,
TARIKERE TALUK-577228
7. JAYALAKSHMI
W/O SRIKANTH KALKUR
AGED ABOUT 41 YEARS,
KARNATAKA BANK,
KOPPA BRANCH
CHIKKAMAGALURU DISTRICT-577443.
...APPELLANTS
(BY SRI ASHWIN S. HALADY, ADVOCATE)
AND:
1. SRI MAHABALA BHATTA
AGED ABOUT 65 YEARS,
S/O LATE K.ANATHA BHATTA,
R/O TALUVE, MELIGE POST,
MATTUR HOBLI,
THIRTHAHALLI TALUK,
SHIVAMOGGA DISTRICT-577443.
2. SRI BALACHANDRA
AGED ABOUT 71 YEARS,
S/O LATE K. ANANTHA BHATTA,
R/O. NO.5, DHONDUSA LAYOUT,
HANUMANTHA NAGAR,
BANGALORE-560019.
...RESPONDENTS
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NC: 2023:KHC:30431
RSA No. 1344 of 2019
THIS R.S.A IS FILED UNDER SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 04.12.2018 PASSED IN
R.A.NO.123/2013 ON THE FILE OF THE III ADDITIONAL
DISTRICT JUDGE, SHIVAMOGGA, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
24.03.2012 PASSED IN O.S.NO. 74/1997 ON THE FILE OF THE
I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA.
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 appellants.
2. The factual matrix of the case of the plaintiffs before the Trial Court that the suit schedule properties are belonged to joint family and the plaintiff is entitled for the relief of partition along with defendants. The defendant No.4 has appeared and filed the written statements and took the contention that the defendant No.1 had taken the share in the ancestral property and also took the contention that there was previous oral partition and the plaintiff has also taken share in the joint family property by way of E.M.D for first contract work in all totally sum of Rs.6,00,000/- and also the defendant No.4 took the contention that when there is actual relinquishment of the share by the plaintiff in joint family properties in terms of -4- NC: 2023:KHC:30431 RSA No. 1344 of 2019 memorandum of understanding dated 26.03.1991 is not entitle for any relief.
3. The plaintiff contention is that plaint 'A' and 'B' Schedule properties are purchased from Venkataramappa and his family out of LAC amount due to joint family. But, it is the main contention of the defendant No.4 that the transaction was took place after 1991 and funds with various bonds are accrued after plaintiff relinquished the right. The loan account mentioned in 'F' schedule was not encashed for the benefit of the joint family and hence, the plaintiff is not entitled for the share in suit schedule property.
4. The Trial Court having considering both oral and documentary evidence i.e., the evidence of PW1 and documentary evidence at Ex.P1 to Ex.P20 and also the evidence of DW1 to DW3 at Ex.D1 to Ex.D44 not accepted the contention of defendant No.4 and comes to conclusion that suit properties are the joint family properties and hence, all are entitled for 1/9th share each in 'A', 'B' and 'C' schedule properties and in 'D' schedule property item No.1, 5 to 9, 13, 14, 16 to 22, 26 to 30, 32 to 37, 40 to 44 and also the -5- NC: 2023:KHC:30431 RSA No. 1344 of 2019 compensation awarded in 'E' schedule item No.5 to 10 and 1/8th share in 'D' schedule items No.2 to 4, 10 to 12, 15, 31, 38 and 39.
5. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed by the defendant No.2, 3, 5 to 9. It is contended in the appeal that the very approach of the Trial Court is erroneous. The First Appellate Courts having considered the grounds urged in the appeal formulated the point as to whether the appellants have proved that the plaintiffs have taken their share in suit schedule properties in the oral partition effected on 26.03.1991 and also whether the second respondent had received an amount of Rs.7,57,600/- on different dates as a share in terms of oral partition and also formulated the point as to whether the appellants have proved that late K.Anantha Bhatta had executed Will dated 18.11.1993 when he was in a sound disposal state of mind by excluding defendant No.1 and plaintiff from claiming any share and whether the impugned judgment requires any interference.
6. The First Appellate Court also again on re- appreciation of both oral and documentary evidence comes to -6- NC: 2023:KHC:30431 RSA No. 1344 of 2019 the conclusion that there was no any oral partition as contended by the appellants and accepted the finding of the Trial Court and dismissed the appeal filed by the appellants. Hence, the present appeal is filed by the appellants challenging the Trial Court judgment and decree as well as the First Appellate Court judgment and decree.
7. The main contention of the appellants that both the Courts have committed an error and the very approach of both the Courts is erroneous with regard to the fact that the appellants have not proved that there was a oral partition and defendant No.1 has taken his share and relinquished his right over the suit schedule property and not disputed the document of memorandum of understanding dated 26.03.1991 and also erroneously committed an error in disbelieving the Will dated 18.11.1993. The very approach of both the Courts is erroneous and hence this Court has to admit the appeal and frame substantive question of law.
8. The counsel also vehemently contend that the First Appellate Court while re-appreciating both oral and documentary evidence, an observation is made that the -7- NC: 2023:KHC:30431 RSA No. 1344 of 2019 document of memorandum of understanding is not admissible in evidence and the said approach is also erroneous.
9. Having heard the counsel for appellants and also on perusal of materials available before the Court, the plaintiff has examined one witness as PW1 and produced the documents. The very contention of defendants that already there was a memorandum of understanding between the parties and also amount was received. There was a oral partition and the said fact has not been accepted by the Trial Court. The Trial Court while answering the issues, comes to the conclusion particularly in paragraph No.58 of judgment and on appreciation of both oral and documentary evidence an observation is made that it becomes clear that the document is created only to portress his claim probably by using unused blank stamp papers kept by K.Ananthbhatta as contended by the plaintiff. That apart giving a go bye to the specific defense that the plaintiff has taken his share in the joint family properties by way of E.M.D for forest contract work, in all totaling Rs.6,00,000/- in landed properties. The DW1 has unequivocally admitted that no share has been allotted to the plaintiff in the immovable properties or the joint family properties and also taken note of particularly Ex.D40 -8- NC: 2023:KHC:30431 RSA No. 1344 of 2019 continues to be in joint names of plaintiff and his father and also taken note of admission given by the DW1 and had there been any partition between the plaintiff and his father, the plaintiff was received cash in lieu of his share as early in the year 1991, there was no reason for K.Anantha Bhatta to nominate the plaintiff as his nominee in the NSC purchase during 1993. considering the document at Ex.D42(a) to Ex.D42(c) and also taken note of other documents at Ex.D26 and Ex.D30 are the first supplemental agreements respectively entered into by the plaintiff with the D.F.O of Varahi Extraction Division, Thirthahalli for sale of standing tree growth of coupe No.73 of Hansa Range of Varahi Hydle Project for Rs.3,30,000/- and its clearance on 31.03.1985 and also taken note of other documents at Ex.D24 to show that the plaintiff has paid only Rs.17,073.80/- for 4th installment and there was no any occasions for the plaintiff to deposit huge sum of Rs.3,00,000/- towards E.M.D as contended by the defendants. Having considered all these materials comes to the conclusion that there was no any oral partition as contended by the defendants and also not believed the contention that there was a memorandum of partition among the family.
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NC: 2023:KHC:30431 RSA No. 1344 of 2019
10. The First Appellate Court on re-appreciation of both oral and documentary evidence, comes to the conclusion that absolutely there is no evidence urged by the defendants to substantiate their claim that the plaintiff and defendant No.1 have separated from the joint family by receiving their shares and the Trial Court has taken note of the same while considering both oral and documentary evidence and not found any perversity in finding of the Trial Court and also taken note of Ex.D6 evident that the plaintiff was residing with his father late K.Anantha Bhatta and also taken note of admission given by DW1 that on 12.09.1987 that they were all residing together at Kadagodu village, on 31.06.1987 they shifted to Taluve and they started to reside there and having taken note of both oral and documentary evidence available on record, the appellate Court dismissed the appeal.
11. Having perused the findings of Trial Court as well as the First Appellate Court, both the Courts have given anxious consideration to both oral and documentary evidence and it was specifically observed that oral partition and document of memorandum of partition came into existence in a suspicious circumstances and same is not proved and both Trial Court as
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NC: 2023:KHC:30431 RSA No. 1344 of 2019 well as the First Appellate Court have given the fact finding and concurrent finding with regard to the contention of the appellants that there was no such partition when they were separated and when such concurrent finding is given, the very contention of the appellants' counsel that both the Courts have committed an error in ignoring the material available on record cannot be accepted. This Court can invoke Section 100 of CPC if the finding of the Trial Court as well as the First Appellate Court is perverse on ignoring the material available on record, if any such finding is given under such circumstances only Section 100 of CPC can be invoked and such circumstances is not warranted considering the material available on record and hence, I do not find any ground to admit the present appeal and frame substantive question of law. Hence, the appeal is dismissed.
12. In view of the dismissal of the main appeal, pending I.As' do not survive for consideration.
Sd/-
JUDGE RHS List No.: 1 Sl No.: 44