The High Court
Case Details
- 1 - NC: 2025:KHC:23080 RSA No. 1453 of 2023 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1453 OF 2023 (PAR) BETWEEN: 1. KUM. BHANUPRIYA, D/O LATE MAHALINGAIAH, AGED ABOUT 20 YEARS. 2. CHI PRATAP, S/O LATE MAHALINGAIAH, AGED ABOUT 16 YEARS, SINCE MINOR REP BY HIS ELDER SISTER AND NATURAL GUARDIAN KUM. BHANUPRIYA. BOTH ARE R/AT THIPPUR VILLAGE, ATHAGUR HOBLI, MADDUR TALUK, MANDYA DISTRICT – 571 401. …APPELLANTS (BY SRI PAWADE GOWDA, ADVOCATE) AND: SMT. BORAMMA (DEAD), LEGAL HEIRS ALREADY ON RECORD 1. SMT. T CHIKKATHAYAMMA, AGED ABOUT 76 YEARS, W/O LATE BYARAIAH, [R2(A-C) TO R6 ARE THE LRS OF R1] 2. KECHAIAH DEAD BY HIS LRS. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:23080 RSA No. 1453 of 2023 HC-KAR
Legal Reasoning
2(a) SMT. PUSHPALATHA, W/O LATE KENCHAIAH, AGED ABUT 51 YEARS. 2(b) KUM TEJASWINI, D/O LATE KENCHAIAH, AGED ABOUT 28 YEARS. 2(c) CHIRANJIVI @ CHIRAN K, S/O LATE KENCHAIAH, AGED ABOUT 26 YEARS. RESPONDENTS No.2(a) TO 2(c) ARE R/AT THIPPUR VILLAGE, ATHAGUR HOBLI, MADDUR TALUK, MANDYA DISTRICT – 571 401. PRESENTLY R/AT No.34, GOWRI MARGA, 1ST STAGE, 1ST CROSS, MAHADESWARA TEMPLE, HALAHALLI, MANDYA - 571401. 3. 4. 5. 6. SMT. KAMALAMMA, W/O KEMPAIAH, D/O LATE BYRAIAH, AGED ABOUT 54 YEARS. SMT. PUSHPA, W/O GOVINDAIAH, D/O LATE BYRAIAH, AGED ABOUT 52 YEARS. MAHALINGAIAH DEAD BY LRS. SMT. KEMPARAJAMMA, W/O LATE MAHALINGAIAH, AGED ABOUT 44 YEARS. SMT. MANJULA, W/O BORAIAH, D/O LATE BYRAIAH, AGED ABOUT 48 YEARS. - 3 - NC: 2025:KHC:23080 RSA No. 1453 of 2023 HC-KAR 7. 8. 9. RESPONDENTS No.3 TO 6 ARE R/AT THIPPUR VILLAGE, ATHAGUR HOBLI, MADDUR TALUK – 571428. SMT. N M BHAVANI, W/O S.T. VIJAYA KUMAR, AGED ABOUT 52 YEARS, SHIVAPURA, MADDUR TOWN – 571 428. SRI MAHESH B MASALA, S/O MASALA BALAPPA, AGED ABOUT 46 YEARS, No.13, MAHESHWARI NILAYA, 3RD CROSS, VINAYAKANAGARA, KELEGERI ROAD, DARWAD - 580008. SRI T D KRISHNA, S/O THIMMEGOWDA, AGED ABOUT 56 YEARS, DEVARAHALLY VILLAGE, MALUR HOBLI, CHANNAPATNA TALUK-562160. …RESPONDENTS (BY SRI M MAHESHA, ADVOCATE FOR R3, R4 & R6; SIR PRAKASH M H, ADVOCATE FOR R7 & R9; SRI M N UMASHANKAR, ADVOCATE FOR SRI REVANNA M S, ADVOCATE FOR R2(A-C); NOTICE TO R5 & R8 SERVED & UNREPRESENTED; R1 DEAD AND R2 TO R6 ARE TREATED AS LRS OF R1) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 15.04.2023 PASSED IN R.A No.88/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADDUR, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 28.09.2018 PASSED IN O.S.No.5/2012 ON THE FILE OF THE IV ADDITIONAL CIVIL JDUGE AND JMFC, MADDUR. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - NC: 2025:KHC:23080 RSA No. 1453 of 2023 HC-KAR CORAM: HON'BLE MR JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission. Heard the learned counsel appearing for the respective parties. 2. The factual matrix of the case of the plaintiffs before the Trial Court while seeking the relief of partition and declaration is that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendant Nos.1 to 7. It is also contended that the sale deeds dated 15.02.2003 and 03.01.2008 executed by defendant Nos.1 to 7 are not binding on the plaintiffs. The Trial Court having considered the pleadings of the parties, framed the issues and allowed the parties to lead their evidence. In order to prove the case of the plaintiffs, natural guardian of the plaintiffs examined herself as PW1 and also examined one witness as PW2 and got marked the documents at Exs.P1 to P10 and Ex.P11 is marked by confronting the same to DW1. On the other hand, defendant No.8 is examined as DW1 and also examined one witness as DW2 and got marked the documents at Exs.D1 and D2 and defendant No.3(a) and (b) not led any evidence. - 5 - NC: 2025:KHC:23080 RSA No. 1453 of 2023 HC-KAR 3. The Trial Court having considered both oral and documentary evidence placed on record answered Issue No.1 partly in the affirmative in coming to the conclusion that the suit schedule properties are the ancestral and joint family properties and answered Issue No.2 in the negative with regard to the execution of the sale deeds dated 15.02.2003 and 03.01.2008 in coming to the conclusion that the plaintiffs’ father was also a party to the sale deeds and he also joined along with the family members while executing the same. The Trial Court also comes to the conclusion that the father of Mahalingaiah has two wives namely, Chikkatayamma and Boramma. Chikkatayamma is issue less and Boramma has five children and she is still alive and defendant No.1 is the kartha of the family and PW2 pleaded ignorance about the survey numbers and extent of the suit schedule property. The Trial Court taken note of the evidence available on record that defendant No.4 has filed the suit in O.S.No.127/2008 and she denied the suggestion that on 21.04.2007, she has compromised the suit filed in O.S.No.127/2008 with the plaintiffs and she admits that the plaintiffs in the present suit were not parties in O.S.No.127/2008 and deposed that the father of the plaintiffs was party to the said suit. Having - 6 - NC: 2025:KHC:23080 RSA No. 1453 of 2023 HC-KAR considered both oral and documentary evidence placed on record, the Trial Court answered Issue No.2 in the negative and also extracted the admission in paragraph No.26 that sale was made for the family necessity, that too in order to purchase the site and the same is discussed in paragraph No. 27 and the Trial Court comes to the conclusion that when the property was sold for family necessity, the contention of the plaintiffs that sale deeds are not biding on the plaintiffs cannot be accepted and hence, dismissed the suit. 4. Being aggrieved by the judgment of the Trial Court, an appeal was filed in R.A.No.88/2019. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the points and on re-appreciation of both oral and documentary evidence placed on record, particularly considered the evidence of the guardian of the plaintiffs as she was examined herself as PW1 and referring the documents comes to the conclusion that the suit schedule properties are ancestral and joint family properties and also considered the evidence of PW2 as well as the evidence of DW1 and DW2. The First Appellate Court considering both oral and documentary evidence placed on record, held that - 7 - NC: 2025:KHC:23080 RSA No. 1453 of 2023 HC-KAR item No.1 of the suit schedule property is concerned, as per Ex.D1 and D2, it is described as item Nos.1 to 4 in the said previous suit in O.S.No.127/2008 before Principal Civil Judge and JMFC, Maddur. In the said case, 3rd defendant of the present case was the plaintiff in the said case, she had filed a suit against defendant Nos.1, 2, 4 to 8 seeking partition and separate possession. After the contest, the suit was decreed in respect of item No.1 and 3 of the suit schedule properties and dismissed with respect to item Nos.2 and 4 of the suit schedule properties, since the plaintiffs’ father was entitled for 1/6th share in item Nos.1 and 3 of the suit schedule properties. Further, the sale deed executed in favour of defendant No.8 on 15.10.2003 was confirmed and dismissed the right of the plaintiffs to claim share in the said property. 5. In the present case, no documents are produced by the parties to show that the said judgment and decree has been challenged by the parties and the First Appellate Court comes to the conclusion that in respect of item No.1 is concerned, it has reached its finality and hence, the judgment passed in O.S.No.127/2008 is binding on the plaintiffs, since the father of the plaintiffs was party to the said suit and in respect of item Nos.2 and 3 of the suit schedule properties - 8 - NC: 2025:KHC:23080 RSA No. 1453 of 2023 HC-KAR are concerned, undisputedly, the said property was sold to defendant No.9 on 03.01.2008 under registered sale deed. The First Appellate Court taken note of the fact that all the family members have joined while selling the properties. The First Appellate Court held that when the plaintiffs’ father was party to the said sale deed, now the plaintiffs cannot reopen the same contending that the property cannot be sold by their father hence, comes to the conclusion that the plaintiffs are not entitled for any share in view of judgment of earlier suit in O.S.No.127/2008 as well as sale deed executed by the father. However, there was no dispute with regard to item No.4 is concerned and hence, 1/6th share was granted by the First Appellate Court. 6. The learned counsel for the appellants in the second appeal would vehemently contend that the judgment and decree passed by the Trial Court is erroneous, since the plaintiffs are also entitled for a share in the suit schedule property, which have been sold and they were not parties to the said sale deed. The learned counsel contend that in the earlier suit also they were not parties. But the fact is that the plaintiffs’ father was a party in O.S.No.127/2008 and also at the time of executing the sale deed in terms of Ex.P.10, the - 9 - NC: 2025:KHC:23080 RSA No. 1453 of 2023 HC-KAR father was a party to the sale deed. The learned counsel for the appellants would contend that this Court has to frame the substantial question of law that both the Courts have committed miscarriage of justice in not considering the evidence of P.W.1, though her evidence has been corroborated with documentary evidence of Exs.P.1 to 11 and not justified in dismissing the suit in respect of other properties are concerned. 7. Per contra, the learned counsel for the respondents would contend that the sale was made in the year 2003 and the father of the plaintiffs was also a party to the said sale deed and in respect of the subsequent sale deed of the year 2008 also the father was a party to the said sale deed. The learned counsel contend that challenge was made subsequently and when the father was a party to the sale deed and that too the sale deed was executed in the year 2003 and the suit was filed in 2012 and all of them are aware of the fact that the property was sold and possession was delivered and they have been in possession of the property and now they cannot contend that they are in joint possession of the property. Both the Courts have taken note of the said - 10 - NC: 2025:KHC:23080 RSA No. 1453 of 2023 HC-KAR fact into consideration. The learned counsel would contend that the earlier suit where the father was a party, the said suit was dismissed in respect of sale made in favour of the respondents and the question of entertaining the second appeal does not arise. 8. Having heard the learned counsel for the appellants and the learned counsel for the respondents, who are the subsequent purchasers of the properties and having considered the factual aspects of the case, no doubt, the property belongs to the family and defendant Nos.1 to 7 have joined in selling the property in the year 2003 and 2008. Having considered the factual aspects, the property was sold and possession was delivered and subsequent purchasers are in possession of the property cultivating the same. It is important to note that the first sale was made in the year 2003 and the said sale deed was challenged by one of the member of the family Smt. Kamalamma and the same was decreed partly and an appeal was filed and the same was dismissed for non-prosecution and not restored and has attained its finality. - 11 - NC: 2025:KHC:23080 RSA No. 1453 of 2023 HC-KAR 9. The learned counsel for the appellants would contend that when the sale deed was made in the year 2008, there was no any legal necessity to sell the suit schedule property. The said contention was taken in the suit also for having sold the property in favour of defendant Nos.8 and 9. The Trial Court and the First Appellate Court taken note of Ex.P.10 and as per the recitals of it, the sale deed is executed by defendant Nos.1 to 7 including the father of the plaintiffs’, who is defendant No.6 and he died during the pendency of the suit and the executors of the sale deed defendant Nos.1 to 7 remained absent and not entered the witness box. However, considering the recitals of Ex.P.10, it is categorically mentioned that the sale was made for legal necessities and in order to purchase the property. The Trial Court taken note of the same in paragraph No.27 that the recitals of Ex.P.4 is very clear that in order to purchase the site, sale deed is executed for the benefit of the family and all the family members have joined in executing the sale deed and also sale consideration was passed. Having taken note of the said fact into consideration, both the Courts comes to the conclusion that the sale was made by all the family members and now the children cannot question the same when the act of the - 12 - NC: 2025:KHC:23080 RSA No. 1453 of 2023 HC-KAR father in selling the property was not questioned during his lifetime and filed the suit in the year 2012, though the sale was made in the year 2003 and 2008 and the same is also for family necessities. When both the Courts have applied their mind and given the judicial appreciation with regard to the factual aspects as well as question of law when the sale was made by the father along with other brothers, the question of granting any relief in favour of the children, who filed the suit subsequently when their father was a party to the sale deed of the year 2003 and 2008, does not arise. Hence, I do not find any ground to admit the appeal and frame any substantial question of law. 10. In view of the discussions made above, I pass the following:
Decision
ORDER The appeal is dismissed. SN/MD Sd/- (H.P.SANDESH) JUDGE