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2025 DAILYLAW 22917 (KAR)

SRI RAVISHA v. SMT. AMMAYYAMMA @ NARAYANAMMA

RSA/380/2016 · 2025-03-21

Ashok S Kinagi

body2025

Judgment text

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- 1 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 380 OF 2016 (DEC/INJ) C/W REGULAR SECOND APPEAL NO. 414 OF 2016 IN RSA No. 380/2016 BETWEEN: 1. SRI RAVISHA S/O LATE RUDRA GOWDA AGED ABOUT 34 YEARS CHIKKAHALLI VILLAGE DODDABELAVANGALA HOBLI DODDABALLAPURA TALUK BANGALORE RURAL DISTRICT - 562130 2. SMT. KAVITHA D/O LATE RUDRA GOWDA AGED ABOUT 32 YEARS CHIKKAHALLI VILLAGE DODDABELAVANGALA HOBLI DODDABALLAPURA TALUK BANALORE RURAL DISTRICT - 562130 3. SMT USHA D/O LATE RUDRA GOWDA AGED ABOUT 30 YEARS CHIKKAHALLI VILLAGE DODDABELAVANGALA HOBLI DODDABALLAPURA TALUK Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 BANALORE RURAL DISTRICT - 562130 …APPELLANTS (BY SRI. C RAJANNA .,ADVOCATE) AND: 1. SMT. AMMAYYAMMA @ NARAYANAMMA D/O LATE HANUMANTHARAYAPPA AGED ABOUT 70 YEARS RESIDENT OF SAKKAREGOLLAHALLI VILLAGE DODDABELAVANGALA HOBLI DODDABALLAPURA TALUK BANGALORE RURAL DISTRICT - 561204 2. SMT RATHNAMMA SINCE DECEASED BY HER LRS SRI MURALI N S/O NARASIMHA, AGED ABOUT 32 YEARS, RESIDING AT RACHENAHALLI, NAGAWARA ROAD, SHIVARAMAKARANTH NAGAR POST, BANGALORE - 560092. 3. SRI JAGADISH N S/O NARASIMHA, AGED ABOUT 26 YEARS, RESIDING AT RACHENAHALLI, NAGAWARA ROAD, SHIVARAMAKARANTH NAGAR POST, BANGALORE - 560092. 4. SRI B C VENKATESH S/O B CHIKKANNA - 3 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 AGED ABOUT 60 YEARS, RESIDING AT BHAKTHARAHALLI VILLAGE, DODDABELAVANGALA HOBLI, DODDABALLAPURA TALUK. BENGALURU RURAL DISTRICT - 561204. 5. SMT MANJULA W/O NARAYANASWAMY D/O LATE HANUMANTHARAYAPPA , AGED ABOUT 39 YEARS, (EMPLOYEE IN ESCORT) NO.302, JAKKUR LAYOUT, 8TH CROSS, JAKKURU POST, YELAHANKA, BANGALORE-64 …RESPONDENTS (BY SRI. B S MURALI FOR R1-R3.,ADVOCATE) (SRI.V.B.SHIVAKUMAR ADVOCATE FOR R4) (SRI.D.KRISHNAMOORTHY ADVOCATE FOR R5) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 09.12.2015 PASSED IN RA.NO.443/2012 ON THE FILE OF THE IV ADDL. DISTRICT AND SESSIONS JUDGE, DODDABALLAPURA, BENGALURU RURAL DISTRICT, BENGALURU. IN RSA NO. 414/2016 BETWEEN: 1. SRI.B.C.VENKATESH AGED ABOUT 64 YEARS, S/O B. CHIKKANNA, R/@ BHAKTHARAHALLI VILLAGE, DODDABELAVANGALA HOBLI, - 4 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 DODDABALLAPURA TALUK, BENGALURU RURAL DISTRICT-561 204. ...APPELLANT (BY SRI. V B SHIVA KUMAR.,ADVOCATE) AND: 1. SMT. AMMAYYAMMA @ NARAYANAMMA, AGED ABOUT 52 YEARS, D/O LATE HANUMANTHARAYAPPA, R/@ SAKKARE GOLLAHALLI VILLAGE, DODDABELAVANGALA HOBLI, DODDABALLAPUR TALUK, BENGALURU RURAL DISTRICT 561 204. 2. SMT. MANJULA AGED ABOUT 40 YEARS, W/O NARAYANASWAMY D/O LATE HANUMANTHARAYAPPA, (EMPLOYEE IN ESCORT), R/@ NO.302, JAKKUR LAYOUT, 8TH CROSS, JAKKUR POST, YELAHANKA, BENGLAURU-560064. 3. SRI. MURALI.N AGED ABOUT 33 YEARS, S/O NARASIMHA, R/@ NO.35, RACHENAHALLI, - 5 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 NAGAWARA ROAD, SHIVARAMAKARANTHA NAGAR POST, BENGLAURU-560045. 4. SRI. JAGADISH.N AGED ABOUT 30 YEARS, S/O NARASIMHA, R/@ NO.35, RACHENAHALLI, NAGAWARA ROAD, SHIVARAMAKARANTHA NAGAR POST, BENGLAURU -560045. 5. SRI. RAVISHA AGED ABOUT 35 YEARS, S/O LATE RUDREGOWDA CHIKKAHALLI VILLAGE, DODDABELAVANGALA HOBLI, DODDABALLAPURA TALUK, BENGLAURU RURAL DIST. 561 204. 6. SMT. KAVITHA AGED ABOUT 32 YEARS, D/O LATE RUDREGOWDA, R/ @ CHIKKAHALLI VILLAGE, DODDABELAVANGALA HOBLI, DODDABALLAPURA TALUK, BENGALURU RURAL DIST-561 204. 7. SMT. USHA AGED ABOUT 30 YEARS D/O LATE RUDRE GOWDA R/@ CHIKKAHALLI VILLAGE, DODDABELAVANGALA HOBLI, DODDABALLAPURA TLAUK, - 6 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 BENGALURU RURAL DIST 561 204. ...RESPONDENTS (BY SRI. B S MURALI FOR R1,R3 AND R4,ADVOCATE) (SRI.D.KRISHNAMURTHY ADVOCATE FOR R2) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 09.12.2015 PASSED IN RA.NO.443/2012 ON THE FILE OF THE IV ADDL. DISTRICT AND SESSIONS JUDGE, DODDABALLAPURA, BENGALURU RURAL DISTRICT, BENGALURU. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHK S.KINAGI ORAL COMMON JUDGMENT These Regular Second Appeals are arising out of a common judgment dated 09.12.2015 passed in R.A.No.443/2012 by the learned 4th Additional District and Sessions Judge, Doddaballapura, Bengaluru Rural District, setting aside the judgment and decree dated 11.10.2012, passed in O.S.NO.55/2006 by the Senior Civil Judge and JMFC, Doddaballapura. 2. For convenience, the parties are referred to based on their ranking before the trial Court. - 7 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 The appellants in RSA.No.380/2016 were the Legal representatives of the deceased defendant No.2, respondent No.1 was the plaintiff No.1, respondent Nos.2 and 3 were the LR's of deceased plaintiff No.3, respondent No.4 was defendant No.3 and respondent No.5 was plaintiff No.2. In RSA.No.414/2016, the appellant was defendant No.3, respondents No.1 to 3 are the plaintiffs and other respondents are the other defendants. 3. The brief facts leading rise to the filing of these appeals are as follows: The plaintiffs filed a suit against the defendants for partition and separate possession regarding the suit schedule properties. The plaintiffs and defendant No.2 are the children of 1st defendant. It is contended that the suit schedule properties are the ancestral properties, and the same were acquired under the partition deed dated 15.05.1990, executed between defendant No.1 and his siblings. By virtue of partition, the suit properties were transferred in the name of defendant No.1 who is the - 8 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 Kartha of the family. The plaintiffs and defendants No.1 and 2 are in the joint possession and enjoyment of the suit schedule properties. It is contended that the plaintiffs have an equal share in the suit schedule properties. The plaintiffs were married and residing separately along with their husbands. In March 2005, the plaintiffs approached defendant No.1 and requested to effect partition, but defendant No.1 refused to effect partition. It is contended that defendant No.2, in collusion with defendant No.2(a), executed a registered sale deed in favour of defendant No.3 during the pendency of the suit. The sale deed executed by defendant No.2 in favour of defendant No.3 is not binding on the plaintiffs' share. Hence, a cause of action arises for the plaintiffs to file the suit for partition and separate possession. Accordingly, the plaintiffs pray to decree the suit. 4. Defendant No.2 filed a written statement contending that the suit filed by the plaintiffs for relief of partition, claiming equal share in all the suit schedule - 9 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 properties is not maintainable, and they filed the suit only to harass the defendants. It is contended that the plaintiffs' age is not mentioned correctly in the cause title of the plaint. 5. It is contended that the suit schedule properties are not the ancestral properties but the self acquired properties of Late.Hanumantharayappa, who died on 15.09.2006, and there a partition was took place on 15.05.1990 among the brothers of the late Hanumantharayappa, and based on the partition, the revenue records were transferred in the name of the late Hanumantharayappa. It is contended that the plaintiffs were married about 30 years back, and they have no right to claim a share in the suit schedule properties. It is contended that the plaintiffs are not in joint possession and enjoyment of the suit schedule properties. It is further contended that the suit filed by the plaintiffs, during the lifetime of defendant No.1, is premature. It is contended that item No.8 is the self acquired property of defendant - 10 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 No.1, and some of the properties are not the joint family properties and some of the properties are not ancestral properties. Hence, he prays to dismiss the suit. 6. Defendant No.3 filed a written statement contending that the suit filed by the plaintiffs, claiming the share in respect of Sy.No.100/1, item No.4 of the suit property, is not maintainable. It is contended that defendant No.2 sold item No.4 of the suit schedule property in favour of defendant No.3. Defendant No.3 became the absolute owner based on the registered sale deed dated 13.03.2007, executed by defendant No.2 in favour of defendant No.3. It is contended that the plaintiffs have no right to claim the share in item No.4 of the suit schedule properties. Hence, prays to dismiss the suit against defendant No.3. 7. The Trial Court, based on the pleadings of the parties framed the following issues. 1. Whether the plaintiff prove that all the suit schedule properties are yet of joint family - 11 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 undivided in nature with joint possession and enjoyment along with defendants? 2. Whether defendants prove the suit schedule item No.8 property is self-acquired by 1st defendant as claimed? 3. Whether defendants prove that plaintiffs" suit has no valid cause of action and pre-mature, as pleaded in the w/s para Nos.11 and 12? 4. Whether plaintiffs are entitle to get the relief of partition, if so at what share and in which of the schedule properties? 5.Whether plaintiffs are entitle to get the mesne profits and at what rate? 6. What order or decree? 8. The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW1 and marked 20 documents as Ex.P1 to Ex.P20. On the other hand, defendant No.2(a) was examined as DW1, defendant No.3 - 12 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 was examined as DW4, examined two witnesses as DW2 to DW3 and marked 2 documents as Ex.D1 and Ex.D2. 9. The trial Court, after recording the evidence, hearing on both sides and on assessment of oral and documentary evidence, answered issue Nos.1,2, 4 and 5 in the negative, issue No.3 in the affirmative and issue No.6 as per the final order and consequently, dismissed the suit filed by the plaintiffs. 10. The plaintiffs, aggrieved by the judgment and decree passed by the trial Court in O.S.No.55/2006, preferred an appeal on R.A. No.443/2012 on the file of learned IV Additional District and Sessions Court, Doddaballapura. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration. 1. Whether the impugned judgment and decree passed by the trial court under appeal is perverse, capricious and arbitrary and it calls for any interference by this court? - 13 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 2. What order? 11. The First Appellate Court, on reassessing the oral and documentary evidence, answered point No.1 in the affirmative, point No.2 as per the final order. 12. The appeal was allowed. Judgment and decree passed by the trial Court was set aside. The suit of the plaintiffs was decreed with cost. It is declared that plaintiff No.1 and plaintiffs No.3(a) and 3(b) together, are entitled to 1/4th share each, in the suit schedule properties, and to also by plaintiff.No.2 except in item No.10 of the suit schedule properties and defendants No.2(a) and 2(c) together are entitled to 1/4th share regarding the suit schedule properties except item No.4, by metes and bounds with separate possession. Defendant No.3 and the legal representatives of defendant No.2, aggrieved by the judgment and decree passed in R.A.No.443/2012, filed the Regular Second Appeals in RSA No.414/2016 and RSA.No.380/2016 respectively. - 14 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 13. Heard the arguments of the learned counsel for the legal representatives of defendant No.2, plaintiffs and defendant No.3. 14. Learned counsel for the legal representatives of defendant No.2 submits that the first appellate Court committed an error in granting 1/4th share in respect of suit schedule properties and he also contends that item No.4 is the self-acquired properties of defendant No.1, who acquired the said property under Ex.P20. He also submits that there was an oral partition took place between the members of the family on 01.06.1988, and the same was acted upon by the parties. The revenue records stand in the name of both plaintiffs, and he submits that the first appellate Court committed an error in passing the impugned judgment. He also submits that the trial Court has not provided a sufficient opportunity to the legal representatives of defendant No.2 to lead evidence. Hence, on these grounds, he prays to allow the appeal. - 15 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 15. Learned counsel for defendant No.3 submits that defendant No.3 is the bonafide purchaser for value without notice, and he has paid the valuable consideration to defendant No.2. Defendant No.2 put defendant No.3 in possession of item No.4 of the suit schedule property. Hence, he prays to allow the appeal filed by defendant No.3 in RSA.No.414/2016. 16. Per contra, learned counsel for the plaintiffs submits that the DW1, during the cross-examination has admitted that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendants No.1 and 2. He submits that defendant No.2 has no right to sell item No.4 of the suit schedule property in favour of defendant No.3. He also submits that defendant No.3 had purchased the suit schedule properties during the pendency of the suit. The said sale transaction is hit by Doctrine of Lis-pendency. He submits that the first appellate Court was justified in passing the impugned - 16 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 judgment. Hence, he prays to dismiss the appeals filed by the legal representatives of defendants No.2 and 3. 17. Perused the records and considered the submissions of the learned counsel for the parties. 18. This Court admitted the appeal in RSA.No.380/2016 on 08.07.2016 to consider the following substantial questions of law. 1. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court granting 1/4th share in respect of the suit schedule property, when Ex P.20 sale deed for to Item No.8 is self-acquired property of Defendant No.1 2. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court granting 1/4th share, ignoring the oral partition entered into between the members of the joint family on 01.06.1988 and the same has been acted upon by the Revenue Authorities as per Ex.P.2 to 19-RTC Extracts in respect of both the plaintiff and defendants? - 17 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 3. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court without following the mandatory procedure under 0.41 R.31 of Code of Civil Procedure? 4. Whether the Lower Appellate Court is justified in reversing the Judgment and Decree of the Trial Court in the facts and circumstances of the present case? 19. In case if defendant No.2 succeeds in RSA.No.380/2016, the question of considering the appeal filed by defendant No.3 would arise for consideration. Otherwise the question of considering the appeal in RSA.No.414/2016 does not arise for consideration. 20. Substantial Questions of Law Nos.1 to 4: The substantial Questions of law Nos.1 to 4 are interlinked, and are taken together for common discussion to avoid the repetition of facts. 21. To prove their case, the plaintiffs examined plaintiff No.1 as PW1. She has deposed that Late Hanumantharayappa i.e. defendant No.1 was the original - 18 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 propositus. He had a wife by the name of Smt.Gowramma and they had four children, i.e., Ruddregowda, Ammayamma, Manjula and Rathnamma. Rudregowda had a wife by the name of Prabhavathi, and Rudregowda and Prabhavathi had 3 children, i.e., Ravisha, Usha and Kavitha. 22. Ammayamma is the plaintiff No.1, Manjula is the plaintiff No.2, Rathnamma is the plaintiff No.3, the daughters of Late Hanumantharayappa, filed the suit for partition and separate possession, and she has deposed that the suit schedule properties are the ancestral properties of the plaintiffs and defendants No.1 and 2. The plaintiffs, being the daughters, fall within the definition of Co-parceners. No partition is effected between the plaintiffs and defendants No.1 and 2. The plaintiffs and defendant Nos.1 and 2 are in joint possession and enjoyment of the suit schedule properties. Further, the plaintiffs requested defendant No.1 to effect the partition, but defendant No.1 refused to effect a partition. Plaintiffs, - 19 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 to establish that the suit schedule properties are the ancestral properties of the plaintiffs and defendant Nos.1 and 2 produced the documents Ex.P1 to Ex.P20. Ex.P1 is the Genealogical tree. Ex.P2 to Ex.P19 are the RTC extracts. Ex.P20 is the certified copy of the registered sale deed, dated 13.03.2007, which discloses that defendant No.2 sold item No.4 of the suit schedule property in favour of defendant No.3 for receiving valuable consideration. 23. Nothing has been elicited during the cross - examination, to disbelieve the evidence of PW1. On the other hand, defendant No.2(a) was examined as DW1. He has reiterated the written statement averments in the examination-in-chief. Further, during the course of cross examination, he has clearly admitted that the suit schedule properties stand in the name of Hanumantharayappa, i.e. defendant No.1 and also admitted that in the said suit schedule properties, the - 20 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 plaintiffs and defendant Nos.1 and 2 are entitled to a share. It is also admitted that the plaintiffs frequently visited their house and demanded their shares with their grandfather. DW1 further admitted that his father did not purchase Sy.No.13/2 and 29 and they are the ancestral properties. 24. DW1 has clearly admitted during the cross examination that the suit schedule properties are the ancestral properties of the plaintiffs and defendant Nos.1 and 2. Defendant No.2, during his lifetime, had sold item No.4 of the suit property, in favour of defendant No.3 as per Ex.P20. Defendant No.3 has contended that item No.4 of the suit schedule property is the self acquired property of defendant No.1. To substantiate the defence of defendant No.3, examined himself as DW4, but, except the oral testimony, defendant No.3 has not produced any records to establish that the item No.4 of suit property is the self acquired property of defendant No.2 - 21 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 25. The First appellate Court, considering the admissions of DW1 that the suit schedule properties are the ancestral properties and plaintiffs are entitled to a share in the said properties, has rightly decreed the suit of the plaintiffs and granted a share. 26. Though defendant No.1 has taken a contention that the plaintiffs born before 1956 and hence have no rights as per the act of 1956. The plaintiffs had filed an application for the production of additional evidence before the First Appellate Court and produced the school records which disclose that the plaintiffs were born after 1956. The daughters born after 1956 are entitled to share in the same manner as that of son. 27. In view of the law laid down by the Hon'ble Apex Court in the case of Vineeta Sharma Vs Rakesh Sharma and others reported in AIR 2020 SC 3717, the first appellate Court has rightly passed the impugned judgment. DW1 has admitted the plaintiffs' case, now the legal representatives of defendant No.2 cannot take a U- - 22 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 turn and file an appeal contending that the plaintiffs are not entitled to a share in the suit schedule properties, the said contentions of the LR's of defendant No.2 is hit by the doctrine of election. 28. Though defendant No.2 executed a registered sale deed in favour of Defendant No.3 as per Ex.P20. The said sale deed was executed during the pendency of the suit. The sale deed executed by defendant No.2 in favour of Defendant No.3 is not binding on the plaintiffs' share. 29. The first appellate Court, considering the entire evidence on record, has rightly passed the impugned judgment in compliance with order 41 Rule 31 of CPC. 30. In view of the above discussions, I answer substantial question Nos.1 to 4 in the affirmative. 31. This Court has already recorded a finding that the plaintiffs have proved that the suit schedule properties are the ancestral properties of the plaintiffs and defendant - 23 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 Nos.1 and 2, no partition is effected, and the sale deed executed by defendant No.2 in favour of defendant No.3 is not binding on the plaintiffs' share. Further, defendant No.3 has failed to establish that he is a bonafide purchaser for value without notice. Admittedly, Defendant No.3 purchased the property during the pendency of the suit, and said transaction is hit by the Doctrine of Lis pendency. In view of the above discussions, the RSA No.414/2016 filed by defendant No.3 does not arise for consideration. 32. In view of the above discussions, I proceed to pass the following order. ORDER 1. The Appeals are dismissed. 2. The judgment and decree passed in R.A.No.443/2012 dated 09.12.2015 passed by the IV Additional District and Sessions Judge, Doddaballapura is confirmed. 3. No order as to the costs. - 24 - NC: 2025:KHC:12225 RSA No. 380 of 2016 C/W RSA No. 414 of 2016 4. In view of the dismissal of the appeal, IA.No.1/2016 does not survive for consideration. Accordingly, IA.No.1/2016 is disposed of. Sd/- (ASHOK S.KINAGI) JUDGE RCK List No.: 1 Sl No.: 2