SMT. RATHNAMMA v. SRI. GANGAIAH & Ors.

SRI NARASIMHAIAH S/O GANGAIAH AGED ABOUT 38 YEARS - 2 - NC: 2026:KHC:7250 RSA No. 478 of 2015 HC-KAR R/O THIRUMENAHALLI VILLAGE JAKKUR PSOT YELAHANKA HOBLI BANGALORE 560 064

SMT JAYALAKSHMAMMA @ VIJAYALAXMI W/O KRSIHNAPPA AGED ABOUT 44 YEARS R/O HULIKAL, MAGADI TALUK BANGALORE DISTRICT

SMT SHANTHAMMA W/O RAMAKRISHNA AGED ABOUT 42 YEARS R/O KALLENAHALLI VILLAGE KANTHAPURA POST NAGAMANGALA TALUK MANDYA DISTRICT

SRI OOMAR FAROOQ S/O ABDUL SHAKOOR AGED ABOUT 52 YEARS R/AT NO.315, 8TH CORSS LAKSHMI ROAD SHANTHINAGARA BANGALORE 560 027 (BY SRI. ABHINAV R, ADVOCATE FOR C/R7 (CP No.133/15) R1 TO R5 ARE SERVED V/O DTAED 21.01.2026 APPEAL IS DISMISSED AGAINST R6) …RESPONDENTS THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 24.2.2015 PASSED IN R.A.NO.92/2013 ON THE FILE OF THE I ADDL. DISTRICT & SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DTD 14.2.2013 PASSED IN OS.NO.553/1996 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU. - 3 - NC: 2026:KHC:7250 RSA No. 478 of 2015 HC-KAR THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT

This Regular Second Appeal is filed by the appellant challenging judgment and decree dated

24.02.2015 passed in R.A.No.92 of 2013 by the learned I Additional District and Sessions Judge, Bangalore Rural District, Bangalore.

For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was the plaintiff and the respondents were the defendants.

4. Brief facts, leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for partition and separate possession regarding the suit schedule properties. The propositus Gangaiah had a wife by name Siddalingamma - defendant No.2. They - 4 - NC: 2026:KHC:7250 RSA No. 478 of 2015 HC-KAR have four children i.e., defendant Nos.3 to 6. The plaintiff is the daughter of defendant No.4. The suit schedule properties are the ancestral and joint family properties and no partition is effected among the members of the family. In the month of January, 1995, the plaintiff demanded for partition and separate possession, however the defendants refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

5. Defendant Nos.2 and 3 filed their written statement admitting the averments made in the plaint and taken a contention that there is no partition among the members of the family and requested to effect a partition in the suit schedule properties.

6. Defendant No.7 being a purchaser filed a written statement denying the averments made in para Nos. 5 and 7 of the plaint. It is contended that defendant No.7 had purchased the suit schedule properties from - 5 - NC: 2026:KHC:7250 RSA No. 478 of 2015 HC-KAR defendant No.1 under the registered sale deed dated

25.05.1995 for a valuable consideration and defendant No.1 delivered the possession of the suit schedule properties in favour of defendant No.7. Since from the date of purchase, defendant No.7 is in possession of the suit schedule property. Defendant No.1 had set up the children of Anjanappa to file a suit in O.S.No. 550 of 1996 for the declaration so as to defeat the rights of defendant No.7 and got compromised on 26.08.1996. The suit filed by defendant No.7 in O.S.No. 59 of 1997 for the relief of declaration and injunction was decreed on

03.12.2005. The present plaintiff and other defendants were parties in O.S.No.59 of 1997. It is also contended that alienation took place prior to

20.12.2004. Hence, on these grounds, prays to dismiss the suit against defendant No.7.

7. The trial Court, based on the pleadings of the parties framed the relevant issues. - 6 - NC: 2026:KHC:7250 RSA No. 478 of 2015 HC-KAR

The plaintiff to substantiate her case, examined herself as PW1 and marked seven documents as Exhibit P1 to Exhibit P7. Defendant No.7 was examined as DW1, examined one witness as DW2 and marked five documents as Exhibit D1 to Exhibit D8. The trial Court, after hearing both sides, and after appreciating the verbal and documentary evidence, decreed the suit of the plaintiff vide judgment dated 14.02.2013 awarding 1/6th share each.

Defendant No.7, aggrieved by the judgment and decree dated 14.02.2013 passed O.S.No. 553 of 1996 preferred an appeal in R.A.No.92 of 2013 on the file of the learned I Additional District and Sessions Judge, Bangalore.

The first appellate Court, after hearing the learned counsel for the parties, and after reappreciating the verbal and documentary evidence, allowed the appeal and set aside the judgment and decree - 7 - NC: 2026:KHC:7250 RSA No. 478 of 2015 HC-KAR passed in O.S.No. 553 of 1996 and consequently dismissed the suit of the plaintiff vide its judgment dated 24.02.2015.

The plaintiff, aggrieved by the judgment and decree passed in R.A.No.92 of 2013, filed this Regular Second Appeal.

Heard Sri. Kiran V Ron, learned counsel for the plaintiff.

Learned counsel for the plaintiff submits that the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendant Nos.1 to 6 and they are the members of the joint family, and no partition is effected between them. The plaintiff demanded for a partition and separate possession but the defendants refused to effect the partition. He also submitted the trial court has rightly decreed the suit after appreciating the entire evidence on record. However, the first appellate court committed an error - 8 - NC: 2026:KHC:7250 RSA No. 478 of 2015 HC-KAR in reversing the judgment and decree passed by the trial court. The judgment and decree passed by the first appellate court is perverse and arbitrary. Hence, on these grounds, prays to allow the appeal.

Perused the records, and considered the submissions of the learned counsel for the plaintiff.

It is the case of the plaintiff that the suit schedule properties are the ancestral and family properties of the plaintiff and defendant Nos.1 to 6, they are the members of the Hindu undivided joint family and no partition is effected and defendant No.1 alone had no right to alienate the property in favour of defendant No.7. Defendant No.7 had not acquired any right, title or interest over the suit schedule properties under the registered sale deed.

Admittedly, prior to the filing of the instant suit, defendant No.7 filed a suit in O.S.No. 59 of 1997 for a relief of declaration of title and injunction based on - 9 - NC: 2026:KHC:7250 RSA No. 478 of 2015 HC-KAR the registered sale deed executed by defendant No.1. The present plaintiff and the other defendants were the parties in the said suit. The judgment and decree passed in O.S.No. 59 of 1997 has attained a finality. Neither the plaintiff nor defendant Nos.1 to 6 have challenged the judgment and decree passed in O.S.No. 59 of 1997.

When, defendant No.7 is declared as the absolute owner of the suit schedule properties and the Court decreed the suit for permanent injunction restraining the plaintiff and defendant Nos.1 to 6 herein from interfering with the peaceful possession and enjoyment of defendant No.7 over the suit schedule properties, the question of considering whether the suit schedule properties were the ancestral and joint family properties of the plaintiff and defendant Nos.1 to 6 does not arise.

Admittedly, the sale deed was executed on

25.05.1995. As per proviso to Section 6(1) of the - 10 - NC: 2026:KHC:7250 RSA No. 478 of 2015 HC-KAR Hindu Succession Amendment Act, any alienation took place prior to 20.12.2004 is saved. The first appellate court considering the said amended provision, has rightly held that the sale transaction is saved under the provisions of the Hindu Succession (Amendment) Act, 2005.

The first appellate court was justified in reversing the judgment and decree passed by the trial Court. Hence, I do not find any error in the impugned judgments, and any substantial question of law that arises for consideration in this appeal.

Accordingly, I proceed to pass the following order: ORDER i. The Regular Second Appeal dismissed. ii. The impugned judgment and decree passed by the first appellate Court is hereby confirmed. iii. No order as to the costs. - 11 - NC: 2026:KHC:7250 RSA No. 478 of 2015 iv. In view of dismissal of the appeal, pending IAs, do not survive for consideration and they are disposed of accordingly. Sd/- (ASHOK S.KINAGI) JUDGE HC-KAR SKS CT:KHV