Vasantha vs Shanthamma W/O Gangadharaiah & Others

H.P. Sandesh, J

This matter is listed for admission and I have heard the learned counsel for the appellant and learned counsel for the respondent No.1.

The factual matrix of the case of the respondent No.1/plaintiff before the Trial Court is that the suit schedule properties are ancestral joint family properties of the plaintiff and defendants. Hence, she is entitled for 1/5th share in all the suit schedule properties.

The defendant No.2 is the only contesting defendant and he admitted the relationship between the parties and nature of properties and denied the other allegations. It is his specific contention that defendant No.1 had sold his share at Thimmasandra Village and came to Sugganahalli and settled at Sugganahalli since 40 years. From the said amount, he purchased suit item Nos.1 and 2 at Sugganahalli and suit item No.3 granted for and on behalf of joint family in the name of defendant No.1 and as such, all the properties are joint family properties. It is also his contention that he had purchased some of the properties and only in order to harass the defendants, filed the suit.

The Trial Court, having taken note of both oral and documentary evidence placed on record, particularly in Paragraph No.9 of the judgment, while answering the issues, taken note of admission of defendant No.2, who has been examined as D.W.1, wherein he categorically admitted that plaintiff is his sister and all the suit schedule properties are ancestral properties and no partition has taken place between them and though he claims that he had purchased Sy.Nos.156/2 and 155/2, but says that he cannot tell on what date he purchased the properties and also admits that the said sale deeds are not in his name and taking into note of his admission, the Trial Court granted the relief of 1/5th share in the suit schedule properties in favour of the plaintiff.

Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.12/2015 and the First Appellate Court also having reassessed the material on record, comes to the conclusion that the plaintiff has proved that suit schedule properties are joint family properties and the Trial Court has not committed any error in granting 1/5th share in favour of the plaintiff. Being aggrieved by the concurrent finding, the present second appeal is filed before this Court.

Learned counsel appearing for the appellant not disputes the very nature of properties. The only contention is that there was partition and the same has not been substantiated and prayed this Court to admit and frame substantial question of law.

On the other hand, learned counsel appearing for the respondent No.1 would contend that when there is an admission regarding nature of properties as well as no dispute with regard to the relationship between the parties, no material with regard to the partition is concerned and categorical admission is given by D.W.1 that there was no partition. Hence, both the Courts have not committed any error in granting 1/5th share in favour of the plaintiff.

Having heard the learned counsel for the appellant and learned counsel for the respondent No.1 and also on perusal of the material on record, particularly, the Trial Court has taken note of admission on the part of defendant No.2, who has been examined as D.W.1 and categorical admissions are given. Even though he claims that two properties are self-acquired properties, no such document is produced before the Court. Hence, I do not find any error committed by the Trial Court and the First Appellate Court in granting 1/5th share in favour of the plaintiff in all the suit schedule properties and confirming the same by the First Appellate Court.

Learned counsel appearing for the appellant brought to notice of this Court that defendant No.1 has not been brought on record and he is no more and at the time of filing the suit, he was alive. Hence, share has to be allotted in favour of his wife and the said submission is placed on record. It is relevant to note that only preliminary decree has been drawn and final decree has not been drawn. Hence, while allotting the share, the said ground can be urged before the FDP Court.

With these observations, the regular second appeal stands disposed of.