Karnataka High Court
Smt Bhagirathi W/O Ramakrishna Pandit vs Subray Ganapayya Bhat Since Deceased By ... on 25 July, 2024
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NC: 2024:KHC-D:10547
RSA No. 2543 of 2007
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 2543 OF 2007 (PAR)
BETWEEN:
SMT BHAGIRATHI
W/O RAMAKRISHNA PANDIT,
AGE: 50 YEARS,
HOUSEHOLD & AGRICULTURE,
R/O KOTITHIRTH (WEST) GOKARN,
TQ: KUMTA, DIST: KARWAR-581326.
...APPELLANT
(BY SRI SOURABH MIRJE, AMICUS CURIAE)
AND:
1. SUBRAY GANAPAYYA BHAT
SINCE DECEASED BY HIS LRS
A). SMT. LAXMI W/O SUBRAY
@ SUBRAMANYA BHAT
AGE: 63 YEARS,
OCC: HOUSEHOLD,
B). VINAYAK
Digitally
signed by S/O SUBRAY @ SUBRAMANYA BHAT
BHARATHI S AGE: 40 YEARS, OCC: HOUSEHOLD,
Location:
HIGH
COURT OF BOTH ARE R/O SODIGADDE,
KARNATAKA PO: ACHAVE
TALUK: ANKOLA, DIST: KARWAR-581314.
C). SMT SALEELA
W/O HARISCHANDRA BHAT
AGE: 37 YEARS, OCC: HOUSEHOLD,
R/O VARA RUCHI SADANAT AND
PO KATTAGAL(BANDAL)
TALUK: KUMTA,
DIST: U.K.581334.
D). VISHALU
W/O NAGAPPA HEGDE
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NC: 2024:KHC-D:10547
RSA No. 2543 of 2007
AGE: 32 YEARS, HOUSEHOLD,
R/O KELAGINKERI POST: HADINBAL,
TQ: HONNAVAR,
DIST: U.K.58334
E). SMT. NAGARATHNA
W/O PARAMESHWAR
BHAT KUNDARGI
AGE: 30, HOUSEHOLD,
R/O C/O LAXMI
W/O SUBRAY BHAT,
R/O SOMGADDE, POST: ACHAVE
TQ: ANKOLA, DIST: KARWAR-58314.
2. NAGENDRA GANAPAYYA BHAT
AGE: 65 YEARS,
OCC: AGRICULTURE,
3. HERAMBA GANAPAYYA BHAT
AGE: 55 YEARS, OCC: AGRICUTURE,
4. MAHABALESHWAR
S/O NARAYAN BHAT
AGE: YEARS,
OCC: AGRICULTURE AND PRIEST,
5. GANAPATI
S/O NARAYAN BHAT
AGE:47 YEARS, OCC: AGRIL. & PRIET,
6. SHREEDAR
S/O NARAYAN BHAT
AGE: 45 YEARS, OCC: AGRIL.
ALL ARE R/O KESHAVALLI,
POST: ACHAVE,
TALUK ANOKLA, DIST: KARWAR.
7. SHIVARAM GOVIND BHAT
AGE: 60 YEARS
R/O ACHAVE, TQ: ANKOLA
DIST: KARWAR-581314.
8. KRISHNA NAGAPPA HEGDE
AGE: 55 YEARS, OCC: AGRIL.
R/O CHENNAGAR ACHAVE,
TQ: ANKOLA, DIST: KARWAR-581314.
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NC: 2024:KHC-D:10547
RSA No. 2543 of 2007
9. SHREEDHAR SUBRAY HEBBAR
AGE: 50 YEARS, OCC: AGRIL.,
R/O HILLUR GUTTAL ACHAVE,
TQ: ANKOLA,
DIST; KARWAR-581314.
...RESPONDENTS
(BY SMT. SMITA B.H., ADVOCATE FOR
SRI. NARAYAN V. YAJI FOR R2;
R1 (A-E), 3 TO 7 & 9 SERVED
SERVICE TO R8 IS HELD SUFFICIENT)
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 08.06.2007 IN RA.NO.2/2006
PASSED BY THE LEARNED CIVIL JUDGE (SR.DN.) KIMTA AND THE
JUDGMENT AND DECREE DATED 22.12.2001 IN O.S.NO.84/1991
PASSED BY THE CIVIL JUDGE (JR.DN.) ANKOLA AND DECREE OF THE
SUIT AS PRAYED FOR.
THIS APPEAL, COMING ON FOR FURTHER SUBMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed under Section 100 of the Code of Civil Procedure, 19081 by the plaintiff No.2 challenging the judgment and decree dated 08.06.2007 passed in R.A.No.2/2006 by the Senior Civil Judge, Kumta2 and the judgment and decree dated 22.12.2001 passed in O.S.No.84/1991 by the Civil Judge, Ankola,3 whereunder 1 Hereinafter referred to as the 'CPC' 2 Hereinafter referred to as the 'First Appellate Court' 3 Hereinafter referred to as the 'Trial Court' -4- NC: 2024:KHC-D:10547 RSA No. 2543 of 2007 the suit for partition has been dismissed by the Trial Court which has been affirmed by the First Appellate Court.
2. The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.
3. The relevant facts necessary for consideration of the present appeal are that the plaintiff No.1 is stated to be the second wife of one Ganapayya Bhat. Plaintiff No.2 is their daughter and defendants No.1 to 3 are their sons. Defendants Nos.4 to 8 are the legal representatives of Ganapayya and his first wife. Defendants No.9 and 10 are the subsequent purchasers of suit schedule Item No.4 property from defendant No.2.
4. It is the case of the plaintiffs that the suit properties being properties of Ganapayya, the plaintiffs and defendants No.1 to 3 having constituted a Joint Hindu Family. Hence plaintiffs are entitled for a share in the suit properties. Hence, the suit.
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NC: 2024:KHC-D:10547 RSA No. 2543 of 2007
5. The defendants No.1 and 2 contested the suit and denied the case of the plaintiffs. It is contended that by a partition dated 02.02.1977 (Ex.D.22), the plaintiffs have been granted a share in the properties of Ganapayya. Further, it is contended that the shares of the plaintiffs having been agreed upon under the said partition (Ex.D.22), the plaintiffs are not entitled to any share. It is further contended that the property at Sl.No.4 is the self-acquired property of defendant No.2 and he purchased the same out of his own income.
6. Defendant No.6 also filed a written statement contending that properties at Sy.Nos.306 and 238 (i.e. suit schedule 'A' Item Nos.6 and 7 properties) are the self-acquired properties of the said defendants, since the occupancy rights have been granted by the Land Tribunal, Ankola in favour of the said defendants. That defendants No.4 to 7 being the children of the first wife have partitioned their share and have been living separately. -6-
NC: 2024:KHC-D:10547 RSA No. 2543 of 2007 The defendants No.4, 5 and 7 have filed a memo adopting the written statement of defendant No.6.
7. The defendants No.9 and 10 being the subsequent purchasers have also filed a written statement contending that they are the subsequent purchasers from defendant No.2 in respect of the suit schedule 'A' Item No.4 property and they are bonafide purchasers for value.
8. Consequent to the pleadings of the parties, the Trial Court framed the following issues and additional issues:
"1. Whether the plaintiffs prove that plaintiffs and all the defendants form a Hindu Joint Family?
2. Whether plaintiffs further prove that suit schedule properties are the self-acquired properties of deceased Ganapayya Bhat?
3. Whether the defendants 1 & 2 prove that all the suit properties except Sy.No.267 are their ancestral properties?
4. Whether defendants 1 and 2 prove that there is already a partition, effected under a partition-deed -7- NC: 2024:KHC-D:10547 RSA No. 2543 of 2007 Dtd: 2/2/1977, in respect of suit lands, between plaintiffs & defendants?
5. Whether schedule 'B' properties are the self acquired properties of defendants 1&2, as alleged in para No.9 of their written- statement?
6. Whether the plaintiff No.2 proves that the deceased plaintiff No.1 had executed a Registered Willnama on 30/9/1991 bequeathing her share in the suit property?
7. Whether the plaintiff further proves that as per the willnama dated 30/9/1991, she is entitled for the share of plaintiff No.1, in the suit schedule properties?
8. Whether the defendants 9 & 10 prove that the defendant No.2 sold the Sy.No. 267 of Achave Village for payment of antecedent debts and legal necessity?
9. Whether the suit is barred by limitation as against defendant No.9 & 10?
10. Whether the suit is not maintainable without a prayer for cancellation of sale deed executed in favour of defendants 9 & 10?
11. Whether the defendants 4 to 6 prove that the lands bearing the Sy.no.306 & 238 of Achave Village are the self acquired properties of their -8- NC: 2024:KHC-D:10547 RSA No. 2543 of 2007 father and as such the plaintiffs and defendants 1 & 3 have no right in the same?
12. Whether the plaintiffs prove that plaintiff together have got 2/5th share in all the suit properties?
13. What order of Decree?
Additional issue framed.
14. Whether the defendant No.1 & 2 prove that the Sy.No.267 is the self-acquired property of defendant No.2?"
9. The plaintiff No.2 was examined as PW.1 and two witnesses as PW.2 and PW.3. The defendant No.3 was examined as DW.1. However, defendant No.3 was not present for cross-examination and hence the testimony of DW.1 has been struck of. Defendant No.2 was examined as DW.2 and a witness as DW.3. The defendant No.6 was examined as DW.4. Exs.P.1 to P.13 and Exs.D.1 to D.30 have been marked in evidence.
10. The Trial Court by its judgment and decree dated 22.12.2001, dismissed the suit. -9-
NC: 2024:KHC-D:10547 RSA No. 2543 of 2007
11. Being aggrieved, the plaintiffs preferred R.A.No.2/2006. The defendants entered appearance before the First Appellate Court and contested the same. The First Appellate Court framed the following points for consideration:
"1. Whether the judgment and decree passed by the Trial Court in O.S.No.84/91 dated 22.12.2001 is arbitrary, capricious and perverse and bad in law on any of the ground urged in the appeal memo?
2. Whether Judgement and decree of Trial Court need any interference by this Court?
3. What Order?"
12. The First Appellate Court by its judgment and decree dated 08.06.2007 dismissed the appeal. Being aggrieved, the present second appeal is filed.
13. This Court vide order dated 11.11.2009 admitted the above appeal and framed the following substantial question of law:
"i. Whether the First Appellate Court justified in affirming the judgment of the Trial Court when the
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NC: 2024:KHC-D:10547 RSA No. 2543 of 2007 appellant was claiming a share in the mother's share and not in respect of the entire ancestral properties?"
14. Learned counsel, Sri.Sourabh Mirje, who has been appointed as amicus curiae by this Court to represent the appellant vide order dated 07.03.2024, vehemently contends that the plaintiffs not having been parties to the partition at Ex.D.22, they are entitled for a share. It is further contended that the finding of the Trial Court that the suit schedule 'A' item No.4 property is the self-acquired property of defendant No.2 is erroneous and liable to be set aside. Hence, he seeks for allowing of the above appeal and decreeing the suit of the plaintiffs.
15. Learned counsel, Smt.Smita B.H. appearing for learned counsel Sri.Narayan V Yaji for respondent No.2 submits that the concurrent finding of both the Courts that the suit 'A' schedule item No.4 property is the self- acquired property of defendant No.2 is just and proper and not liable to be interfered with.
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NC: 2024:KHC-D:10547 RSA No. 2543 of 2007
16. The submissions made by both the learned counsels have been considered and the material on record has been perused including the records of the Trial Court and the First Appellate Court.
17. It is forthcoming that the plaintiffs have specifically pleaded that late Ganapayya, after the death of his first wife had married Plaintiff No.1. That he had two children from his first wife who have taken their shares as per the partition between them.
18. It is pertinent to note that the genealogy and the relationship as averred by the plaintiffs is not disputed. It is further pertinent to note that plaintiff No.1 died on 22.10.1995 and she had executed a registered Will dated 30.09.1991 (Ex.P.6) bequeathing her share in the property in favour of her daughter, the plaintiff No.2. It is further forthcoming that in the partition Ex.D.22, the suit 'A' schedule properties at item Nos.1, 2, 3 and 5 have been mentioned therein and there is no mention of suit 'A' schedule item Nos.4, 6 and 7 properties.
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NC: 2024:KHC-D:10547 RSA No. 2543 of 2007
19. It is further relevant to note that defendants No.4 to 8 have taken a specific contention that suit 'A' schedule item Nos.6 and 7 properties have been granted by the Land Tribunal, Ankola in favour of the father of defendants No.4 to 7 and that they are the self-acquired properties.
20. In view of the fact that the said suit schedule 'A' Item Nos.6 and 7 properties do not find a mention in the partition Ex.D.22 and having regard to the specific averment of the plaintiffs that the children of the first wife took their share and lived separately, it is clear that the plaintiffs have failed in demonstrating that suit 'A' schedule item Nos.6 and 7 properties are joint family properties.
21. It is the specific contention of the defendants No.1 to 3 that late Ganapayya along with his second wife and children have already partitioned their property vide Ex.D.22. The Trial Court and the First Appellate Court noticing the averment made by the plaintiffs that there is
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NC: 2024:KHC-D:10547 RSA No. 2543 of 2007 a prior partition and having regard to the partition Ex.D.22, has dismissed the suit.
22. It is relevant to note that the plaintiffs have averred with regard to the partition of late Ganapayya and children of his first wife. Further, it is forthcoming from partition Ex.D.22 that plaintiffs are not parties to the same. It is forthcoming from a perusal of Ex.D.22 that the defendants 1 to 3 have agreed to provide certain maintenance to the plaintiffs from and out of the income of the properties mentioned in the said deed as agreed to between them.
23. Having regard to the admitted position that plaintiffs are not parties to partition (Ex.D.22), the terms agreed to between the defendants No.1 to 3 vide Ex.D.22 cannot bind the plaintiffs. Hence, the finding recorded by the Trial Court and the First Appellate Court rejecting claim for partition is erroneous and liable to be set aside.
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NC: 2024:KHC-D:10547 RSA No. 2543 of 2007
24. With regard to the contention of the defendant No.2 that suit schedule 'A' Item No.4 property is the self- acquired property, it is relevant to note that the Trial Court has noticed the contention put forth by defendant No.2 that he was singing in Yakshgana and that he had a separate income. Noticing the documents produced to demonstrate the same, the Trial Court has recorded a finding that suit 'A' schedule item No.4 property is the self-acquired property of defendant No.2.
25. It is the vehement contention of the learned counsel for the appellant that suit 'A' schedule item No.4 property was purchased vide sale certificate dated 11.12.1964 (Ex.D.19) and the documents produced by defendant No.2 to prove his income are Ex.D.21 of the year 1982 and Ex.D.20 of the year 1987. It is forthcoming that the Trial Court noticing the said contention, has held that suit 'A' schedule item No.4 property was purchased by defendant No.2 in a public auction as is forthcoming from Ex.D.19 which has been issued by the Tahasildar
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NC: 2024:KHC-D:10547 RSA No. 2543 of 2007 and if the defendant No.2 was a minor, the same would have been mentioned in the said Ex.D.19. Hence, it has been held by the Trial Court that defendant No.2 having demonstrated that he had an independent income by singing in Yakshagana, the said contention of the plaintiffs was rejected and a finding of fact has been recorded that suit 'A' schedule item No.4 property (Sy.No.267) is the self-acquired property of defendant No.2. The said finding has been affirmed by the First Appellate Court.
26. Having regard to the concurrent findings recorded by both the Courts, notwithstanding the vehement contention of the learned counsel for the appellant that the said finding is erroneous, no ground has been made out to interfere with the same.
27. Hence the plaintiffs are entitled for a share in the suit 'A' schedule item Nos.1, 2, 3 and 5 properties. Having regard to the admitted position that plaintiff No.1 married deceased Ganapayya after the death of first wife, plaintiff No.1 is also entitled to an equal share along with
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NC: 2024:KHC-D:10547 RSA No. 2543 of 2007 plaintiff No.2 and defendants No.1 to 3. The plaintiff No.1 who is the second wife and plaintiff No.2 and defendants No.1 to 3 being the children of deceased Ganapayya, are entitled to 1/5th share each.
28. The share of plaintiff No.1 having bequeathed to plaintiff No.2 vide Will dated 30.09.1991 (Ex.P.6) and both the Courts having recorded a concurrent finding that the Will has been proved, plaintiff No.2 is entitled to 2/5th share in the suit item Nos.1, 2, 3 and 5 properties.
29. In view of the aforementioned, the substantial question of law is answered in the negative.
30. This Court places on record the valuable assistance rendered by learned counsel, Sri.Sourabh Mirje as amicus curiae for the appellant. The Karnataka State Legal Services Authority is requested to pay a honorarium of `10,000/- to learned counsel Sri. Sourabh Mirje for the services rendered in the above appeal upon production of a copy of this order.
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31. Hence, the following:
ORDER i. The above appeal is partly allowed;
ii. The judgment and decree dated 08.06.2007 passed in R.A.No.2/2006 by the Senior Civil Judge, Kumta is set aside;
iii. The judgment and decree dated 22.12.2001 passed in O.S.No.84/1991 by the Civil Judge, Ankola is set aside;
iv. The suit in O.S.No.84/1991 on the file of Civil Judge, Ankola is partly decreed by holding that plaintiff No.2 is entitled to 2/5th share in the suit 'A' schedule Item Nos.1, 2, 3 and 5 properties;
v. Modified decree to be drawn accordingly.
Sd/-
JUDGE SH CT: GSM List No.: 1 Sl No.: 55