Siddamma vs Honnurappa And Others

Nataraj Rangaswamy, J

This Regular Second Appeal is filed by the unsuccessful plaintiff challenging the Judgment and Decree dated 04.03.2011 passed by the Civil Judge

(Jr.Dn.) and JMFC., at Molakalmuru in OS No.54/2010 and the concurring Judgment dated 07.08.2012 passed by the Senior Civil Judge, Challakere in

RA No.28/2011. By the aforesaid Judgments, the Trial Court and the First Appellate Court declined the claim of the plaintiff for 1/3rd share in the suit

property and also declined to declare that the sale deeds dated 08.05.1974, 09.05.1974 and the mortgage deed dated 14.03.1974 did not bind interest of

the plaintiff.

For the sake of brevity and easy understanding, the parties shall henceforth be referred to as they were arrayed before the Trial Court. The

appellant was the plaintiff, while the respondents were the defendants before the Trial Court.

The plaintiff stated in her plaint that Chennappa had three sons namely Gowdara Ganganna, Dodda Parameshwarappa and Sanna

Parameshwarappa. The plaintiff is the daughter of Sanna Parameshwarappa. The land bearing Sy.No.19 of Bommakkanahally, Devasamudra Hobli,

Molakalmuru Taluk purportedly, belonged to the joint family. The aforesaid land was stated to be mortgaged by Gowdara Ganganna in favour of

Smt.Jakani Gangamma in terms of a mortgage deed dated 14.03.1974 and later the said Gowdara Ganganna sold the aforesaid land to Jakani

Gangamma in terms of two sale deeds dated 08.05.1974 and 09.05.1974. She contended that apart from Gowdara Ganganna, the legal heirs of Dodda

Parameshwarappa had joined in the execution of the sale deeds. She contended that she had not joined in the execution of the sale deeds and thus, she

contended that she was entitled for undivided 1/3rd share in the suit property. She claimed that the legal heirs of Jakani Gangamma refused to hand

over her 1/3rd share in the suit properties and therefore, she filed a suit for partition of her 1/3rd share in the land bearing Sy.No.19 and also to declare

the mortgage deed dated 14.03.1974 and the sale deeds dated 08.05.1974, 09.05.1974 did not bind her right title and interest.

The defendant Nos.1 to 8 were placed ex-parte. The defendant Nos.9 to 13 entered appearance. The defendant No.13 filed his written statement

which was adopted by the other defendants.

The defendant No.13 contended that the plaintiff had failed to array Smt.Hucchamma, w/o Sri.Siddanna, Smt.Ramakka, w/o Sri.Murukallappa,

Smt.Parameshwaramma, daughter of Sri.Sanna Parameshwarappa as parties to the suit and had not disclosed about them in the family tree furnished.

He contended that the defendant Nos.1 to 8 were never in possession of the suit property for well over 36 years. Further, he stated that the mortgage

deed dated 14.03.1974 was executed so as to raise a loan for the necessities of the family and in order to clear the said loan, sale deeds dated

08.05.1974 and 09.05.1974 were executed. He therefore, contended that the sale deeds were executed to meet the legal necessities of the family and

from the date of execution of the sale deeds, the defendant Nos.9 to 13 were in possession and that the plaintiff was fully aware of these transactions

and also the fact that the defendants Nos.9 to 13 were in possession. It was also contended that Sri.Gowdara Ganganna, with the consent of his

brothers had sold the suit property. Further, it is stated that there was an oral partition between the plaintiff, defendant Nos.1 to 8 in terms of which,

land bearing Sy.No.6, measuring 9 acres 22 guntas fell to the share of the plaintiff, which she nominally sold to her son-in-law. It was also contended

that the land in Sy.No.7/1A of Bommakkanahally village stood in the name of the plaintiff’s daughter Smt.Parameshwaramma. The defendant

No.13 therefore, contended that the suit for partition was filed in collusion with defendant Nos.1 to 8.

Based on the above, the Trial Court framed the issues. The plaintiff was examined as PW1 and the defendant No.8 was examined as PW2 and a

witness was examined as PW3 and Exs.P1 to P29 were marked. The defendant No.13 was examined as DW1 and he marked Exs.D1 to D6.

The Trial Court held that the plaintiff was not entitled to the relief of partition primarily on the following grounds:

(i) That the sale deeds dated 08.05.1974 and 09.05.1974 were executed so as to clear off the loan that the family had raised in terms of the mortgage

deed dated 14.03.1974 (Ex.P22). It was held that the sale deeds were therefore executed to meet the legal necessities of the family.

(ii) That the plaintiff was allotted an extent of land which she did not disclose in her plaint and that the defendant No.13 had proved the oral partition

between the defendant Nos.1 to 8 and the plaintiff .

(iii) That the plaintiff had failed to file the suit within 12 years to claim her share in the suit property.

(iv) That the sale deeds dated 08.05.1974 and 09.05.1974 were brought about with the concurrence of the members of the joint family.

The Trial Court therefore, dismissed the suit.

The plaintiff challenged the aforesaid Judgment and Decree of the Trial Court before the First Appellate Court in RA No.28/2011. The First

Appellate Court ruled that Sri.Gowdara Ganaganna as the Kartha of the joint family had every right to sell the suit property for the benefit of the joint

family and that Smt.Jakani Gangamma after having purchased the suit property was in possession during her lifetime and later sons of Smt.Jakani

Gangamma were in possession of the suit property. The First Appellate Court also noticed that the plaintiff was given away the land in other survey

number namely Sy.No.7/1A of Bommakkanahally measuring 3 acres 20 guntas. Thus, the First Appellate Court dismissed the appeal and confirmed

the Judgment and Decree of the Trial Court.

The plaintiff is therefore, in appeal before this Court in this regular second appeal.

It is the contention of the plaintiff that the sale deeds dated 08.05.1974 and 09.05.1974 did not bind her right, title or interest as she had not joined

in the execution of the sale deeds. She further contended that there was no legal necessity in the family which compelled Sri.GowdaraGanganna to

mortgage the suit property to Sri.JakaniGangamma and therefore, there was no necessity to sell the suit property to her. In order to buttress this

argument, she relied upon the evidence of PW2 who is the son of Sri.DoddaParameshwarappa and who deposed that there was no corresponding

legal necessity. She also contended that as there was no partition in the joint family, she is entitled for a share in the suit property and further

contended that apart from what was sold under the two sale deeds, there was an extent of 1 acre 29 guntas in Sy.No.19 that remained unsold which

she claimed as her share.

The execution of the mortgage deed (Ex.P22) dated 14.03.1974 is not seriously disputed. It is also not disputed that Sri.Gowdara Gangannawas

the Kartha of the joint family. The mortgage deed is not challenged for well over 36 years and therefore, the contents of the mortgage deed cannot be

ignored. It is not the case of the plaintiff that Sri.Gowdara Ganganna had malversed the funds of the joint family or had mis-utilized the mortgage

money. The sale deeds dated 08.05.1974 and 09.05.1974 executed in favour of Smt.Jakani Gangamma was invariably to clear off the outstanding loan

of the joint family. Therefore, the consideration received by the sale deeds dated 08.05.1974 and 09.05.1974 were used to discharge off the loan

amount raised in terms of the mortgage deed dated 14.03.1974. The plaintiff therefore, could not contend that the mortgage deed and the consequent

sale deeds did not bind her right, title or interest. It is not her case that her father was alive at the time of execution of the mortgage deed and the sale

deeds. Consequently, her contention that she is not bound by the mortgage deed and the sale deeds, is not acceptable.

Not withstanding the above, the plaintiff has failed to plead that she was a recipient of 3 acres 20 guntas in Sy.No.7/1A of Bommakkanahally

which stood in the name of her daughter. She also did not deny that Sy.No.6 of Bommakkanahally that fell to her share was nominally transferred in

the name of her son-in-law. The suit was therefore, liable to be dismissed on two counts, namely that she had deliberately suppressed true facts

regarding partition and also the large extent of the land that she received as her share and also on the ground that the suit for partial partition was not

maintainable. As the plaintiff failed to deny the sale deed executed by her in favour of her son-in-law in respect of Sy.No.6 and as she failed to

produce proof of the fact that 3 acres 20 guntas in Sy.No.7/1A of Bommakkanahally stood in her daughter’s name an adverse inference was also

liable to be drawn against her.

The plaintiff had also not explained as to why the mortgage deed dated 14.03.1974 and sale deeds dated 08.05.1974 and 09.05.1974 were not

assailed earlier than by way of the suit filed before the Trial Court.

Under the circumstances, this is not a fit case for exercise of jurisdiction under Section 100 of the Code of Civil Procedure, 1908. There is no

illegality or irregularity in the Judgments and Decrees of the Trial Court and the First Appellate Court and the same are based on sound and proper

appreciation of the evidence on record.

As no substantial question of law arises for consideration in this appeal, this appeal is dismissed as devoid of merit.

Any or all application pending shall stand disposed off.