:_'H1ridu,"1\/iajior, .. IN THE HIGH COURT OF KARNATAKA AT BAN GALORE DATED TI-IIS THE 26TH DAY OF NOVEMBER.«29fG--S§A' BEFORE THE HON'BLE MR. JUSTICE REGULAR FIRST APPEAL NO.i£3.84§i.A_A_OI:?' 2091 . BETWEEN : Smt.K.Sujatha. D/0 late K.Kar:iyappa. Aged about 30 Years, Residing at No.367, Jakkasancira, _ _ 1 - ' 1stB1ock, 1stMain; 2: Koramangala, _ ._ " BANGALORE -'-_5(;0,_o3'4.» t ' .. APPELLANT. (By Sn. Char1'd'ra$'1*51ekéi;t';' * fdr , T" ' ' M / s. A. C .C..Ass0c:1ates*,.,_AdVs . ) f AND: Sri.Venk_atesh:iR§\.'Jjirt1i3r, S / 0 late.%Som1.appa; . Rs:_si.d:i1«1.g at VNQ.' 1/ 1 , JakI£§2is_a11dr_'a_ Ko1=arz~1angaIa, BANGALORE .;-:_._§§st) 034. .. RESPONDENT.
[By Srlii.1ff{Ané1iithakr1shnaItr1urthy, Adv.)
*M$_*_*_*%*_*
This Appeal is filed under Section 96 read with Order
41, Rule 1 and Order 41{A) of the Code of Civil Procedure,
against the Judgment and Decree dated 3o.o3.2oo}:t pressed in
O.S.No.10850/1991 on the file of the xxx/111 Ae1ti:t:e:%;ei Teeter
Civil and Sessions Judge, Bangalore, partly the
for declaration.
This Appeai is coming on I~*Iear’,d:’ tr;
JUDGMENI
Matters this day, the Court de1iV’-edred the
This is defendaht-‘s” _fi&afsts.j_g’ chalienging the
Judgment and Decree”””ciateVd passed in
O.S.No. 10850/1991′; t}fie:”fi.1eAoVf”‘the xxvm Additional City
Civil and Se.ssz’.or1s– Judge’,~BVang~alore.
it The esseritialgifaets leading to this appeal are that
Va_I:id.gdetendant are the members of the same family.
V one Sonnappa, who is one of the sons of
‘Dodda Defendant is daughter of one Kariyappa,
iisdtlfie son of Chikka Katappa. The said Dodda Katappa
__gar1dAV'{Jhikka_Katappa are brothers and at one point of time.
“*1
they together constituted a joint family, that there was a
partition in the joint family subsequent to the death of._lj)odda
Katappa. Admittedly the said partition has
30.12.1979 and it is oral partition. The said
reduced into writing by way of declaration”*«.made_” by _ ‘(Z:V1’1ii.{kal 7.
Katappa. who partitioned the sarnel”-in dpresei-1ce.V”o.f
panchas and the members oi”t«..:’VtTI*i»e joint H In the
declaration made by Childaa riegardinygiithe partition
effected in respect of the joint of himself and
his brother, five of :;)rop’erties::vt’ere.allotted to the share
of the plaj;ntiffth.e five items are referred to
as suit “A”V”‘schedu3.e ‘
3. _ _ Asd”o.n’th.e}dat.e Vofithe partition, the said Sonnappa
notriioere and irivs’ui’t’schedule land, sites were formed and
one sac}; is said to have been sold by the grand
‘ “~.Inother_:of the namely Smt.Akkayamma, widow of
Doddaiiatappa to the defendant under a registered Sale
‘dated 07.05.1981, the said site is referred to as”s\uit “B”
schedule property. The plaintiff herein has filed the present
suit, O.S.No.i0850/1991 seeking declaration that he is the
absolute owner of “B” schedule property, which in
favour of defendant and also for recovery of po_ss.essiofn– the
same.
4. In the said suit, the defendant, ‘Who iappeiiant
herein entered appearance, fi1ed”Writte’ri Staterne§n’t’~aeeepting’
that there was a partition “joint ‘ iamilyf of Dodda
Katappa and Chikka Katappa on and that certain
properties were plaintiff, at the
relevant point of’t’i’:irne,.ypiaintiff was minor, he was under the
care and Cttstodyf of mother, Smt.Akkayamma, the
vpersonégwlio has ..eXecuted the Sale Deed of “B” Schedule
favour of defendant. It is the case of the
sale was made by the grand mother of
V plaintiff foripiegal necessities and for the welfare and well being
piairitiff and hence the title and right in respect of
schedule property has already passed on to the
“defendant by virtue of the registered Sale Deed dated
“*1
in’her*i”a’ve~,ur. ..
07.05. 1981 and as such plaintiff cannot seek declaration that
he is the owner of “A” schedule property and the Vdeiendant
has also taken a plea that Smt.Akkayamma, _tj’n’e*l~.;’.1_’i
Sale Deed dated 07.05.1981 beingmthe
Katappa had a specific share in the joint. “prop:e_rty;,i_ias l’
such she had a pre eXisting’fV’r§_ght lover’ the;”sluvit’VV
property and other property her’ Dodda
Katappa under the Therefore the
plaintiff cannot depriye and fabricated
document for:.wliich:_she 3 aiso took up the ‘
contention”l”t’r1atiVf, plaintiff is barred by
limitation ‘and V ‘Z: .t_l1e.l_:lllfd.ef-endant has already put up
construction Vthefschedlusle property and as such equity is
rival contentions, the Trial Court
proceeded the following issues:
.p if “V–Whether the plaintiff proves that he is the
4′ absoiute owner of plairit “B” Schedule
Property? _
“‘1.
6
Whether plaintiff proves thatp
Smt.Akkayamma had no right to sell
“B” Schedule Property to .
hence the sale deed in favour ll
defendant is void ab–ir1itio?
Whether plaintiff proves th’atl’defenVd’a1jrt:4_i_s 3
unlawful possession ofpithe suit” propertj}?
Whether proves entitled to
recover the posses_sion Schedule
propertggjtifomithe W
that he is entitled to
olflj permane11tl”ihjunction as sought
7–.for’? V
. Wh4ethVer..defevnd’aht proves that the suit is
‘ E hatred law of limitation?
V or defendant proves that the Court fee
insufficient. If so what is the proper
x fee payable?
Whether defendant proves that the Sale
Deed dt. 7–5–l981 executed in her favour of
“*1
Akkayarnma was for legal necessity and in
the welfare interest of plaintiff?
9. To what relief the parties are entitled
6. Thereafter the matter went into t_rial.’:’
examined himself as P.W.1 and ex_an3ined_”an’other”‘Witness}i.
S.R.Shivan1urthy as P.W.2 and ;”got–.._’_’frnarke_d
Exs.P–1 to P-20. On behalf of ‘cxaininedt
herself as D.W.2 and a1so..exar1}iine..d-.h’e-r. brother, one Rakesh
as D.W.1 and together Ethey “pr’otc1ue’ed’e,d’ocuments as per
Exs.D–1 to”Ij”. inf); ‘£3 ”
7. *'”Ev’ria]_ appreciation of the oral and
._.documentary evincienpce on record, proceeded to answer Issue
-. to affirmative and Issue Nos.5 to 8 in the
_ V negatirre’ and.”.eor_;=s’equent1y decreed the suit of plaintiff in part
by decfaririg that plaintiff is the absolute owner of plaint “B”
sc_hedu1.e property and further directed the defendant to
___’de1i\}er ‘Vacant possessisn of the said property on or before
“‘”\
31.07.2001 and further ordered for recovery of mesne profits
from the date of filing of the suit till realization andprdered
for separate enquiry under Order 20, Rule 12 of
Civil Procedure. However, the relief of perm;-1n.e’11tVinjunctliorl
was rejected by the Trial Court.
8. The said Judgment’ and Degree is»”‘el_1allengedl
defendant in this appeal on ;i?ria1 Court
has erred in appreciatiiiglflithe __Ir1ade “by plaintiff
and also over looked are produced by
him and has the impugned
Judgment__on_ theetaasisi admissions of defendant in her
evidence asfwelli asxinahper and that the plaintiff has
4__failed tejilprove th’ei..p:artit:ion by producing the partition deed,
“which _has-.sta.t_ed to have come into existence in the year
V 19979 and ‘t1’-lat plaintiff has failed to establish his right over
the suit ..s”cl1e’dule property with reference to the partition
«TV4’referred._by” him in his pleadings said to have taken place
the children of late Dodda Katappa and Chikka
W
Katappa and that the Trial Court has also not looked into the
fact that Smt.Akkayamma was one of the legal heirs of Dodda
Katappa is naturally entitled to a share in the sui-‘t”‘s:c’hedu1e
property. Therefore the Sale Deed executed by-xher
of suit “B” schedule property should: be”aCpCepte.d:rtas j
valid and also challenged the
ground that the Trial Court the suit
accepting Ex.P–1 for which Akkagrarrirna a party.
Therefore the share allotted-ltporreaech parties including
Akkayamma is one of the legal
heirs to d.’eceased, declaration made in
the said Efirf-..l edoesijnot.l§i’n.d..–Akkayamma and as such the
Sale Deed executed by per Ex.P–l and the Trial Court
roughtito have declared the plaintiff as owner of the said
pp “ln.’t”l1is appeal on service of notice, respondent —
has entered appearance through counsel. After
_psecu;jing the entire Trial Courts records and on going through
W
the Judgment and Decree, the following points arises for
consideration in this appeal:
1. Whether the Trial Court” was in
accepting Ex.P–1 regarding
oral partition between ”
Katappa and Chiki;avp:”‘-K_atap’pa’s
proceeded to decree the’-suit»_as prayed
2. ‘Whether the in
awarding V-rnesgne 2 plaintiff and
directingflfiéholdirign enqiiiry.iinder Order 20,
Rt1:i’€l::2V;’Qf c}>c?’~-‘_ ..
10. ‘After “counsel_ for parties and on
appreciation of the oral and documentary evidence on record,
Coiirt Point in the affirmative and Point No.2 in
following:
REASONS
The fact that plaintiff and defendant are members
if the same family is not in dispute. It is also not in dispute
W
that the grand father of plaintiff and defendant together
constituted a joint family and the suit “A” schetitiieyhitem
Nos.1 and 2 are some of the properties of the’ joint
family, as admitted by defendant at
statement, which reads as under:
“It is also true that’the.v_.join’t’fanziiy’
were divided as per ‘dated
30.12.1979. At th’e*~..tin1ed.fofVfdiyisi’on it is tme to
say that the plaintiff vdwasf was under
the care and._:c’-astodyffof who was
none of plaintiff.
the division made
by of the joint famiiy
properties. , v;i’he?:_properties described under ‘B’
Sehedule given to S1nt.Akkaya1n1na and
the plaintiff, as he was minor
V
also admits the partition, which has taken piace on
if £979 in the said joint family and aliotting piaint “A”
flscheduie property to the share of the plaintiff herein, who is
W
minor at that point of time. it is also admitted by defendant
that at the relevant point of time, plaintiff was undeprlethex care
and custody of his grand mother, Smt.Akkaya1nif1a;l«of
late Dodcla Katappa. It is also admitted by tihatypithep
joint family properties was partitioned..:afterof
Dodda Katappa by his younger
as per partition made Nos}
and 2 property among lotzher allotted to the
share of plaintiff by Chikka
Katappa regarding 30.12.1979 in the
presence:'”of” that plaintiff herein was
represented Srnt.Akkayainma. It is not
in dispute that t_he_defendar1t’s father Kariyappa is one of the
‘VVsi’iare’i*–s€’ in ‘the ‘partition, which has taken place on
I V
:”v.As4fcou1d be seen from the Sale Deed which is
Smt.Akkayamma on 07.05.1981 which is at
it clearly discloses that Smt.Akk_ayamma who was
“*7
aware of the partition which has taken place on 30.32.1979
has executed the Sale Deed in favour of defendant”-.in–,V’her
individual capacity and not as the guardiasfi
Therefore the Memorandum of Deiclaratiponvitt j if
Chikka Katappa on 30.12.1979 cf
schedule executed by are it is
clearly seen that as on 1.98 i’;p’:–9’n1tr’A1<}{ayva1nn1a had no
independent right in an); schedule item
No.1, and item of Therefore
the Sale Deed" in favour of
iightvvivested in her to execute
such Sa1e:"De'ed.V 'f'ria1 Court on appreciation of
all the documents' aVai1able"on record, has rightly rejected the
claim ¢£'aefenda-nt. ~ ooooo 14 .
being the grand daughter of Chikka
Platappa Vdrell aware of the family arrangements, which
xccrpneyws into existence on 30.12.1979. When the
_de’fendant’s father purchased the suit “B” schedule property,
‘”‘”\_
her father was well aware that the suit “B” schedule property
does not belong to Smt.Akkayam1na, for the reasonjthat by
then the partition of the joint family consisting.
Katappa and Chikka Katappa had already
Kariyappa being son of Chikka Katappalyvfas llofgtihe
share that was fallen to the shears. of’
to the share of his father’s eldest: and inspite of
knowing that right in
suit “A” schedule get the suit “B”
schedule registe,reciy:i_:i fa’v;ro1ui’ of. his’ railnlor daughter. Under
the could pass on from
Smt.A1{kayanania: in respect of suit “B”
schedule l
of D.W.1 Rakesh, who is son of
.A’.il3i?other of defendant clearly goes to establish
that aware of the partition, which had taken place
the Sale Deed dated 07.05.1981. Though the
l_l_de’feVr1dant has taken a plea that the partition dated
T ‘«l..g3(“);’l2.1979, is not in terms of EXP-l. She has neither
“‘”\
produced any documents or led oral evidence to deny the
contents of EX.P–l and to establish that the partitio_n«r_.’_whreh
has taken place in the family of Dodda Katappa
Katappa is contrary to the contents’ of is.
memorandum of declaration of oral
Chikka Katappa in the on
30.12.1979. Looked pinto defendavnt, who is
appellant herein has not to assail the
well reasoned the Trial Court
declaring thatfldtllie. property is the property
of the plaintiff it it V’ dd 3
15. by both the parties that
suit “B7 sehedide property was a vacant site and in View of
“f_ceI’tajn whichmyvere there between the plaintiff and
property was not developed and is neither
enjoymen’t»,oi’ defendant nor plaintiff. In the circumstances,
rfindrngw of the Trial Court to say that the plaintiff is
4’_’_entitled”‘to mesne profit for the period when the suit schedule
it hpropderty was in the custody of defendant is without any basis
“”\
and the said finding is required to be reversed. Hence 1
answer Point No.1 in the affirmative and Point No.2 in the
negative.
16. Accordingly the appeal is
confirming the Judgment and Detcrepe .
passed in O.S.No. 10850 / 1991 on the filled Additional
City Civil and Sessions
declaration that the plaintiff is ..gvmer oi schedule
property and he is entitledto ‘of the property from
the defendant. V if V V d
17. So ‘oiifgranting Inesne profit and
also direction: to: “under Order 20, Rule 12 is
hereby set A
‘d ‘V “18. 1)”‘Appellant/defendant is directed to deliver the
of the suit schedule property to the
respo11_deriVt;’p]i’aintiff within thirty days from this day.
Sd/–
JUDGE