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2022 DIGILAW 138 (KAR)

K. Gurubasavaraj v. Susheelamma

2022-02-03

SACHIN SHANKAR MAGADUM

body2022
JUDGMENT 1. The captioned second appeal is filed by unsuccessful defendants questioning the concurrent judgments and decrees of the Courts below wherein the suit for partition filed by respondent No.1-plaintiff is decreed granting share in the suit schedule properties. 2. The facts leading to the case are as under: The respondent No.1-plaintiff claims that she is the daughter of Defendant No.1-Chandana Gowda and Defendants 2 to 4 are her brothers. Respondent No.1 -Plaintiff has claimed that suit schedule properties are the joint family ancestral properties and that their father defendant No.1 is the Kartha of the family.Respondent No.1-plaintiff has claimed her share in the suit schedule properties. The present suit for partition is filed by the plaintiff specifically alleging that the present appellants- defendants have denied her legitimate share in the suit schedule properties. 3. On receipt of summons, the defendants tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. Defendant No.1 filed written statement and specifically contended that while solemnizing marriage of plaintiff, he has transferred agricultural land bearing Survey No.1018-C totally measuring 2 acres 90 cents in favour of his son-in-law -Shivumurthappa. It was also contended that defendant No.1 has given 15 tolas of gold ornaments and a sum of Rs. One lakh was also paid. Defendant No.1 also contended that he incurred hand loan of Rs. One Lakh to perform the marriage of plaintiff. Therefore, Defendant No.1 has contended that while performing marriage of the plaintiff, land bearing No.1018-C which was ancestral property was transferred in the name of her husband and therefore, her legitimate share is already given and without including the said land, the present suit for partition is not maintainable. 4. The trial Court having assessed the oral and documentary evidence has negatived the contention raised by the defendants. On perusal of the material on record, the trial Court found that the contention of defendant No.1 that he has transferred the property in the name of Shivumurthappa, who is the husband of the plaintiff is factually incorrect. Having examined Ex.P7, the trial Court found that it was the father of Defendant No.1 namely Kotragowda who had transferred this land bearing Survey No.1018-C in favour of his daughters namely Parvathamma and Kariamma. The husband of plaintiff-Shivumurthappa is the son of Kariamma. Having examined Ex.P7, the trial Court found that it was the father of Defendant No.1 namely Kotragowda who had transferred this land bearing Survey No.1018-C in favour of his daughters namely Parvathamma and Kariamma. The husband of plaintiff-Shivumurthappa is the son of Kariamma. Having examined this evidence, the trial Court has come to the conclusion that the land bearing Survey No.1018-C is not all the ancestral property of the family of defendant No.1. On the contrary, the trial Court found that the said land was already transferred by Kotragowda-the father of defendant No.1 in favour of his two daughters. Therefore, the said property is not at all the ancestral property of plaintiff and defendants pursuant to transfer made by Kotragowda in favour of his two daughters namely, Parvathamma and Kariamma. On these grounds, the contentions raised by defendant No.1 and the present defendants stood negatived and the trial Court proceeded to hold that there is no severance in the family. The suit schedule properties are the joint family ancestral properties and accordingly, proceeded to decree the suit. 5. The present appellants-defendants feeling aggrieved preferred an appeal in R.A.48/2011. The appellate Court on re-appreciation of oral and documentary evidence has concurred with the findings recorded by the trial Court and has proceeded to dismiss the appeal. 6. Being aggrieved by the concurrent judgments and decrees of the Courts below, the present appeal is preferred by the present appellants-defendants. 7. Heard the learned counsel for the appellants and perused the judgments under challenge. 8. On perusal of the material on record, this Court would find that grand-father of plaintiff-respondent No.1 herein and father of defendant No.1 to discharge his legal duty during his life-time had transferred agricultural land bearing Survey No.1018-1-C totally measuring 2 acres 90 cents in favour of his daughters namely Parvathamma and Kariamma who are the wives of late Nagappa. The said Nagappa is none other than the father of Shivumurthappa who is the husband of the plaintiff-respondent No.1 herein. Therefore, the contention of defendant No.1 that Survey No.1018-1-C was transferred in the name of plaintiff Susheelamma while performing her marriage is factually incorrect and to substantiate the said claim, the present appellants-defendants have not produced any documentary evidence. The said Nagappa is none other than the father of Shivumurthappa who is the husband of the plaintiff-respondent No.1 herein. Therefore, the contention of defendant No.1 that Survey No.1018-1-C was transferred in the name of plaintiff Susheelamma while performing her marriage is factually incorrect and to substantiate the said claim, the present appellants-defendants have not produced any documentary evidence. Both the courts have meticulously examined the clinching evidence adduced by the plaintiff-respondent No.1 and have come to the conclusion that no land was given to respondent No.1- plaintiff during her marriage. Having negatived the contention raised by defendant No.1 and having answered issue No.3 in the negative, both the Courts have concurrently held that the suit schedule properties are the joint family ancestral properties and therefore, respondent No.1-plaintiff being daughter of defendant No.1 is entitled for share and have proceeded to decree the suit awarding 1/5th share to plaintiff in all the suit schedule properties. The judgments and decrees rendered by the Courts below and consequent quantification is in accordance with law and does not suffer from any infirmities and illegalities. The allotment of 1/5th share by the trial Court as well as the appellate Court is strictly in consonance with the principles laid down by the Apex Court in the case of Vineetha Sharma. No substantial question of law arises. Accordingly, the appeal is dismissed.