Karnataka High Court
Smt. Prathibha vs Smt. Chandramma on 4 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:25364
RSA No. 1048 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 1048 OF 2013 (PAR)
BETWEEN:
SMT. PRATHIBHA
AGED 38 YEARS
W/O N.S. SRIDHAR
AGRICULTURIST/HOUSEHOLD
R/O VAKKALIGARAPET
DAVANAGERE-01
...APPELLANT
(BY SRI.M.S. RAJENDRA., ADVOCATE)
AND:
1. SMT. CHANDRAMMA
W/O LATE SHIVAKUMARA SWAMY
AGED 56 YEARS
AGRICULTURE HOUSEHOLD
TUDEKOPPA VILLAGE
NADAKALASE HOBLI
SAGAR TALUK, SHIMOGA DISTRICT
Digitally signed
by 2. PRASHANTHA KUMAR
NARAYANAPPA
LAKSHMAMMA S/O LATE SHIVAKUMARA SWAMY
Location: HIGH AGED 33 YEARS
COURT OF AGRICULTURE/HOUSEHOLD
KARNATAKA TUDEKOPPA VILLAGE
NADAKALASE HOBLI
SAGAR TALUK
3. SMT GOWRAMMA
DEAD BY HER LRS
3A RAJKUMARA SWAMY
S/O LATE GANGADHARAIAH
AGED 62 YEARS
AGRICULTURE/HOUSEHOLD
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NC: 2024:KHC:25364
RSA No. 1048 of 2013
TUDEKOPPA VILLAGE
NADAKALASE HOBLI
SAGAR TALUK, SHIMOGA DISTRICT
3B SMT. BALALEELAMMA
D/O LATE GANGADHARAIAH
W/O S M SHIVANANDA SWAMY
AGED 66 YEARS
BELLAGAVI VILLAGE AND POST
SHIKARIPURA TALUK
SHIMOGA DISTRICT
4. SMT. JANAKAMMA
W/O NOT KNOWN
AGE 52 YEARS
TUDEKOPPA VILLAGE
NADAKALASE HOBLI
SAGAR TALUK, SHIMOGA DISTRICT
5. PRADEEP KUMAR
S/O NOT KNOWN
AGE 33 YEARS
TUDEKOPPA VILLAGE
NADAKALASE HOBLI
SAGAR TALUK, SHIMOGA DISTRICT
...RESPONDENTS
(BY SRI. VEERENDRA R. PATIL., ADVOCATE;
R1, R2, R3, R4-SERVED & UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGEMENT & DECREE DTD 22.1.2013 PASSED IN
R.A.NO.107/2009 ON THE FILE OF THE ADDL. DISTRICT JUDGE,
SHIMOGA, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGEMENT AND DECREE DATED 22.6.2009 PASSED IN
OS.NO.191/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN) SAGAR.
*****
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1048 of 2013
JUDGMENT
1. The plaintiff is before this Court challenging the concurrent finding of the trial Court in OS No.191/2006 and RA No.107/2009, partly decreeing the suit filed by the plaintiff. The plaintiff claims to be the daughter of late Sri.T.G. Shivakumar Swamy through his first wife Smt.Chandramma. Defendant No.1 is the mother-Smt.Chandramma, defendant No.2 is her blood brother, defendant No.3 was a grandmother, upon her expiry, her other two sons i.e., the brothers of her father were brought on record as her legal representatives. Defendant No.4 is the second wife, defendant No.5 is the son of the second wife.
2. The plaintiff filed the aforesaid suit in OS No.191/2006 for declaration that the plaintiff is entitled to one-third share in the suit scheduled properties. For declaration that the Hissa Kararu Patra dated 31.03.2004 entered into between the parties is null and void, as also for mesne profits. -4-
NC: 2024:KHC:25364 RSA No. 1048 of 2013 Defendant No.2 being her brother, filed his written statement supporting the plaintiff.
3. Defendant No.5 filed a detailed written statement contending that the Hissa Kararu Patra has been acted upon, partition having been already affected between the parties. The Hissa Kararu Patra has been executed by the plaintiff herself, the plaintiff cannot seek to reopen the partition.
4. On the basis of the rival pleading, the following issues were framed, and they were answered as under by the trial Court.
ISSUES
1. Whether the plaintiff proves that she, defendant No. 1 and 2 constitute a Hindu joint Family?
2. Whether plaintiff further proves that the suit schedule properties are the joint family properties of plaintiff, defendant No.1 and 2?
3. Whether plaintiff proves that her signature to the Hissa Kararu Patra was taken against her free will, conscience and by playing fraud, misrepresentation and coercion on account of the ill health of Shivakumara Swamy?
4. Whether the plaintiff proves that in the said partition deed, the share allotted to her is very meager and it is unjust, unfair and unequal?
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5. Whether the defendants No.3 to 5 prove that defendant No.4 is the legally wedded wife and defendant No.5 is the son of Shivakumar Swamy through defendant No.4?
6. Whether defendant Nos.3 to 5 further prove that they have acted upon the partition dated 31.3.2004 and made improvements as pleaded in para 13 and 14?
7. Whether plaintiff is entitled for the relief of declaration?
8. Whether the plaintiff is entitled for partition and separate possession of 1/3rd share in the suit schedule properties?
9. Whether the plaintiff is entitled for mesne profits in respect of suit schedule properties?
10. To what order or Decree the parties entitled? My findings on the above issues are as under; Issue No.1: In the negative.
Issue No 2: In the negative Issue No.3: In the negative.
Issue No 4: In the negative.
Issue No.5: Partly in the affirmative. Issue No.6: Partly in the affirmative. Issue No.7: In the negative.
Issue No.8 The plaintiff is entitled the share in the suit properties to the extent as allotted under Ex.D1. Issue No.9 In the negative.
Issue No. 10: As per final order.
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5. The trial Court, while answering issue No.3 has gone through the pleadings and the evidence on record and come to a categorical conclusion that the plaintiff has signed the Hissa Kararu Patra of her own, free will and volition. There is no fraud played on her, on account of the alleged ill health of her father and has consequently come to a conclusion that the said Hissa Kararu Patra is binding on the parties to the said document.
6. The plaintiff having taken up the same on appeal in RA No.107/2009, the First Appellate Court after re- appreciating the evidence on record has again come to a conclusion that there was a clear cut partition by allotting shares between the parties in terms of the Hissa Kararu Patra and therefore the parties having acted in terms of exhibit D-1 being the Hissa Kararu Patra, the relief sought for by the plaintiffs cannot be granted. It is challenging in the same, the plaintiff is before this Court challenging concurrent finding of both the trial Court and the First Appellate Court. -7-
NC: 2024:KHC:25364 RSA No. 1048 of 2013
7. The above appeal was admitted on 13.02.2020 to answer the following substantial question of law. The substantial questions of law that arise for consideration in this appeal are;
"(i) Whether the Courts below failed to consider, whether the second wife and children born from her are entitled to claim as coparceners in the joint family ancestral properties?
(ii) Whether the plaintiff being a signatory to the partition deed dated 31.03.2004 is entitled to challenge the same on the ground that the second wife and her children do not have pre-existing rights in the coparcenary properties in the light of the Judgment of the Hon'ble Apex Court in the case of Kale and other vs. Deputy Director of consolidation and others reported in AIR 1976 SC 807?"
8. The contention of Learned counsel for the appellant is that defendant No.5 being the son of the second wife of her father, the said marriage having occurred during the subsistence of the marriage with the first wife i.e., defendant No.1, the properties admittedly being joint family properties, defendant No.5 would not have any interest in the property, nor could the joint family properties be partitioned among the parties when defendant No.5 did not have any interest in such joint family properties. -8-
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9. At the most, he submits that defendant No.5 would have a right only in the share of the deceased father and not in the entire properties and thus he submits that the Hissa Kararu Patra which is by virtue of which a right has been conferred on defendant No.5 in joint family properties is non est and cannot be considered and it is in that basis he submits that the pleadings and the evidence led by the plaintiff that the Hissa Kararu Patra was executed by her without her free will and volition would have to be believed by this Court.
10. Learned counsel for the respondent would however submit that the Hissa Kararu Patra having been executed and acted upon the plaintiff having signed the said document, the revenue entries subsequent thereto having made in the name of the parties as per the Hissa Kararu Patra. The plaintiff having been allotted 11 guntas of land belonging to the family, the plaintiff having received that property, enjoyed the said property for a period of 2 years from the -9- NC: 2024:KHC:25364 RSA No. 1048 of 2013 time when the Hissa Kararu Patra was executed could not file a suit 2 years thereafter challenging the Hissa Kararu Patra. Since the Hissa Kararu Patra has been executed and acted upon, the question of consideration of the substantial questions as framed by this Court would not arise.
11. Heard Sri.M.S.Rajendra., learned counsel appearing for the appellant and Sri.Veerendra R.Patil., learned counsel appearing for respondent No.5. Perused papers.
12. The relationship between the parties is not in dispute, so also it is not in dispute that the properties are joint family properties. The submission made by learned counsel for the appellant would have been proper and correct provided there was no Hissa Kararu Patra which had been executed between the parties. In the absence of any partition between the parties, the recent judgment of the constitutional Bench of the Apex Court in Revanasiddappa & another vs. Mallikarjun & others reported in
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NC: 2024:KHC:25364 RSA No. 1048 of 2013 (2023) 10 SCC 1 would have applied more particularly in terms of Para 81 thereof and Defendant No.5 would have only an interest in the property falling to the share of the deceased father and not in the joint family properties.
13. However, in the present matter, factually there has been a Hissa Kararu Patra which has been admitted in the plaint by the appellant herself. In fact, the suit having been filed for declaration that the Hissa Kararu Patra dated 31.03.2004 is null and void. The only reason to suspect or challenge the Hissa Kararu Patra is that the father expired on 12.04.2004, 12 days after the execution of the Hissa Kararu Patra and therefore the said document was not executed of her own free will, conscious and wish of the plaintiff.
14. It is not in dispute that Hissa Kararu Patra was executed on 31.03.2004 and the suit came to be filed on 4.11.2006 i.e., after a gap of nearly more than two and half years.
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15. The evidence on record which has been examined and appreciated by both the trial Court and the First Appellate Court indicates that subsequent to the execution of the Hissa Kararu Patra, mutation entries as regard the properties allotted to the plaintiff had been made in her name and that the said document has been executed by all family members witnessed by witnesses who have also deposed as regard the validity of the veracity of the document. The said validity and veracity of the said Hissa Kararu Patra having been established during the course of evidence before the trial Court and having been confirmed by the First Appellate Court is a question of fact and not a question of law. It is only if the Hissa Kararu Patra has not established that the question of whether the son of a second wife could claim right in the joint family property would arise. Once the Hissa Kararu Patra is established, the said question would not arise.
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16. As such on facts, the trial Court and First Appellate Court having come to a conclusion that there was a division of the property among the parties and that division of the property has been acted upon, the question of the plaintiff once again re-agitating the issue by filing a suit for partition would not arise.
17. In that view of the matter, I am of the considered opinion that the substantial questions as framed by this Court on 13.02.2020 would not be required to be considered in the absence of the Hissa Kararu Patra being established to be invalid.
18. With the above observation, the appeal stands dismissed.
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JUDGE SR List No.: 1 Sl No.: 21