Karnataka High Court
Rukimini W/O. Dymanna Navekar vs Smt Laxmavva W/O. Hanumanthappa Kedari on 30 July, 2024
Author: B.M. Shyam Prasad
Bench: B.M. Shyam Prasad
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NC: 2024:KHC-D:10702-DB
RFA No. 100045 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 100045 OF 2024 (PAR/POS)
BETWEEN:
1. RUKMINI
W/O. DYMANNA NAVEKAR,
AGE. 39 YEARS, OCC. HOUSEWIFE
R/O. HULKOPPA TQ. KALAGHATAGI,
DIST. DHARWAD-580118.
2. DASHRATHA
S/O. DYAMANNA NAVEKAR
AGE. 21 YEARS, OCC. AGRICULTURE
R/O. HULKOPPA TQ. KALAGHATAGI,
DIST. DHARWAD-580118.
3. MAHESH
S/O. DYAMANNA NAVEKAR
Digitally
signed by
YASHAVANT
AGE. 18 YEARS, OCC. STUDENT
NARAYANKAR
Location:
R/O. HULKOPPA TQ. KALAGHATAGI,
HIGH COURT
OF
KARNATAKA
DIST. DHARWAD-580118.
...APPELLANTS
(BY SRI. DINESH M. KULKARNI, ADVOCATE)
AND:
1. SMT. LAXMAVVA
W/O. HANUMATHAPPA KEDARI,
AGE. 43 YEARS,
OCC. HOUSEWIFE
R/O. TEMPLE STREET, MANDIHAL,
MUGAD, DHARWAD-580007.
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NC: 2024:KHC-D:10702-DB
RFA No. 100045 of 2024
2. SMT. DYAMAVVA
W/O. BASAPPA BAGALKOT
AGE. 66 YEARS,
OCC. HOUSEWIFE
R/O. TEMPLE STREET MANDIHAL,
MUGAD AT DHARWAD-580007.
...RESPONDENTS
(BY SRI. RAGHAVENDRA A. PUROHIT, ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 READ WITH ORDER 41 RULE 1 OF CPC., 1908, AGAINST
THE JUDGMENT AND DECREE DATED 09.10.2023 PASSED IN
O.S.NO.101/2022 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JUDICIAL MAGISTRATE FIRST CLASS, KALAGHATAGI,
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
B.M.SHYAM PRASAD, J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE B.M. SHYAM PRASAD
AND
HON'BLE MR JUSTICE C M JOSHI
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE B.M. SHYAM PRASAD) This appeal is filed by the first to third defendants in O.S. No.101/2022 on the file of Senior Civil Judge and JMFC, Kalaghatagi [for short 'the civil Court']. The civil Court, by the impugned judgment and decree dated 09.10.2023, has decreed the respondents' suit declaring that -3- NC: 2024:KHC-D:10702-DB RFA No. 100045 of 2024 each of the respondents would be entitled to 1/3rd share in the suit schedule property which is the land measuring 10 acres 06 guntas in Sy.No.192 of Hulkoppa village [hereafter referred to as the subject property]. There is no dispute about the relationship inter se parties. The appellants are the wife and children of Sri. Dyamanna Navekar, who had two sisters by name Smt. Tulsavva and Smt. Dyamavva [who is the second respondent herein]. The first respondent is the daughter of Smt. Tulsavva.
2. Sri. Dinesh M. Kulkarni, the learned counsel for the appellants, submits that the appellants have contested the respondents claim for partition asserting primarily that [a] Smt. Tulsavva and the second respondent way back in the year 1979 have agreed for transfer of all the revenue entries for the subject property in favour of Shri. Dyamanna and this revenue entry has prevailed right from the year 1979 till the date of the suit and [b] the long-standing revenue entry coupled with the fact that both Smt. Tulsavva and the second respondent are married and living separately -4- NC: 2024:KHC-D:10702-DB RFA No. 100045 of 2024 show that the subject property was not a joint family property as on the date of the suit.
3. Sri. Dinesh M. Kulkarni further argues that the first respondent's asserts that she is the daughter of Smt. Tulsavva, but she has not produced any document to demonstrate that she is her daughter except a Legal Heir Certificate [Ex.P.13] issued by the Tahasildar and that the Tahasildhar does not mention the mother's name when a Certificate1 is issued with reference to the husband's name and this shows that this certificate is secured only for the purpose of the suit. The learned counsel argues that therefore, the Certificate would have no probative value unless the respondents examined the officers to prove the content of the certificate.
4. Sri. Raghavendra A. Purohit, the learned counsel for the respondents, submits2 that each of these witnesses
1. This Certificate mentioned that the names of both the first respondent's husband and mother.
2. The learned Counsel has also made over to the Court copies of the deposition of three witnesses. The deposition of Sri. Basappa S/o. Yallappa More, who is examined as PW.3 and the deposition of the respondents who were examined as PWs.1 and 2 respectively. -5-
NC: 2024:KHC-D:10702-DB RFA No. 100045 of 2024 are not only categorical in stating that the first respondent is the daughter of Tulsavva but they have also denied the suggestion to the contrary and that the efficacy of the Certificate [Ex.P.13] must be seen in the context of the oral evidence and the fact that the appellants have neither let in any evidence nor placed on record any material to undermine the efficacy of either the respondent's oral testimony or the Certificate.
5. These rival submissions present a narrow canvas of dispute, and the points for consideration will be as follows.
Whether the Civil Court has erred in opining that there is material to hold that the first respondent is the daughter of deceased Tulsavva and that Smt.Tulsavva and the second respondent have only given consent for transfer of revenue entries in favour of Shri. Dyamanna the subject property and that such admission cannot be taken as proof of partition.
6. The respondents have, apart from their evidence as regards the first respondent's relationship with Smt. Tulsavva, relied upon the evidence of Sri. Basappa S/o. -6-
NC: 2024:KHC-D:10702-DB RFA No. 100045 of 2024 Yallappa More [PW.3]. This witness in his cross examination is categorical in stating that he is from the same community as the parties to the suit and that he has attended the wedding of Smt. Tulsavva. This witness, while disputing that at the time of marriage Smt. Tulsavva was given properties in settlement of her claims, is categorical in his assertion that the first respondent is the daughter of Smt. Tulsavva, and further in his cross examination he says that he has not seen any record that speak of the first respondent being the daughter of Smt. Tulsavva and that he knows about her father's family.
7. However, these statements do not undermine in any manner his categorical evidence that the first respondent is the daughter of Smt. Tulsavva. The respondents do not rely upon the only Certificate [Ex.P.13] to establish the first respondent's relationship with Tulsavva, and even if they were to rely only upon such Certificate, this Court, while assessing the evidence on the scale of preponderance of probabilities, must examine the -7- NC: 2024:KHC-D:10702-DB RFA No. 100045 of 2024 probative value of this Certificate considering the ocular evidence on record.
8. When this Certificate [Ex.P.13] is read in conjunction where the oral evidence of Sri. Basappa S/o. Yallappa More [PW.3] and the respondents and the fact that the appellants have not placed any material whatsoever to the contrary, this Court must opine that the contents of Certificate corroborate oral evidence in establishing the first respondent's relationship with Smt. Tulsavva. The appellants are aggrieved by the fact that the Certificate is issued mentioning the first respondent as not just the wife of Sri. Hanumanthappa Kedari but also as the daughter of Smt. Tulsavva which could not have been the scenario according to them. Mere doubt canvassed by the appellants does not discharge the onus on them in the light of evidence placed on record by the respondents to show the relationship between the first respondent and Smt. Tulsavva. Hence, the first point for consideration is answered against the appellants.
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NC: 2024:KHC-D:10702-DB RFA No. 100045 of 2024
9. The appellants rely upon mutation entry in MR No.1178 which is dated 29.10.1979 to contend that Smt. Tulsavva and the second respondent have given up their interest in the subject property. This mutation, which is in the vernacular, reads that both Smt. Tulsavva and other daughter [the second respondent] and Smt. Yallawwa, wife of the propositus of Ramappa have only consented for the revenue entries for the subject property to be made in the name of Late Sri. Dyamanna. The appellants, who rely upon this statement and the fact that these revenue entries have prevailed until the date of the suit, have not placed on record any material to infer that this revenue entry is a consequence of oral arrangement/partition inter se the parties for exclusive allotment of the subject property to Sri Dyamanna and to construe that this arrangement is to the exclusion of the others.
10. If the appellants have not placed any material on record in this regard, this Court cannot take any exception with the Civil Court opining that this mutation cannot be -9- NC: 2024:KHC-D:10702-DB RFA No. 100045 of 2024 construed as consent for release of all their rights. The mutation entry indicates that Smt. Yallawwa and Smt. Tulsavva have only signified their consent for revenue entries in favour of Dyamanna when the second respondent was still a minor. Therefore, second point for consideration is also answered against the appellants. Consequentially, the appeal is dismissed, and in view of the dismissal of the appeal, all pending applications are rejected as not surviving for consideration.
Sd/-
(B.M.SHYAM PRASAD) JUDGE Sd/-
(C M JOSHI) JUDGE SMM LIST NO.: 1 SL NO.: 25