Karnataka High Court
Smt. Sumitra W/O. Ramanayak Patil vs Sri. Ramanayak S/O. Dharamanayak Patil on 4 November, 2025
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RFA No. 100284 of 2018
C/W RFA.CROB No. 100010 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 4TH DAY OF NOVEMBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE R.NATARAJ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100284 OF 2018 (PAR/POS)
C/W
RFA CROSS OBJ NO. 100010 OF 2018
IN RFA NO.100284/2018:
BETWEEN:
1. SRI. RAMANAYAK
S/O. DHARAMANAYAK PATIL
AGE: 58 YEARS,
OCC: AGRICULTURE,
R/O CHIKKAMALLIGAWAD VILLAGE,
TALUK AND DISTRICT DHARWAD-580009.
Digitally 2. SRI APPASAB @ SHIVANAYAK
signed by S/O. DHARAMANAYAK PATIL
SUMA AGE: 54 YEARS,
Location: OCC: AGRICULTURE,
HIGH
COURT OF R/O CHIKKAMALLIGAWAD VILLAGE,
KARNATAKA TALUK AND DISTRICT DHARWAD-580009.
3. SMT. ANNAKKA
W/O. BABASAB DESAI
AGE: 52 YEARS,
OCC: HOUSEHOLD WORK,
R/O. C/O. RAMANAYAK
S/O. DHARAMANAYAK PATIL,
CHIKKAMALLIGAWAD VILLAGE,
TALUK AND DISTRICT DHARWAD-580009.
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RFA No. 100284 of 2018
C/W RFA.CROB No. 100010 of 2018
HC-KAR
4. SMT. MEERA
W/O. YANKANAGOUDA NAIK
AGE: 48 YEARS,
OCC: HOUSEHOLD WORK,
R/O. C/O. GHODAGERI,
TALUK: GOKAK,
DISTRICT: BELAGAVI-580032.
5. SMT. SUJATA
W/O. RUDRAGOUDA PATIL
AGE: 46 YEARS,
OCC: HOUSEHOLD WORK,
R/O. C/O. RAMANAYAK
S/O. DHARAMANAYAK PATIL,
CHIKKAMALLIGAWAD VILLAGE,
TALUK AND DISTRICT DHARWAD-580009.
...APPELLANTS
(BY SRI. DINESH M. KULKARNI AND SRI. VINAYAK B. HEGDE,
ADVOCATES)
AND:
1. SMT. SUMITRA
W/O. RAMANAYAK PATIL
AGE: 69 YEARS,
OCC: AGRICULTURE,
R/O. CHIKKAMALLIGAWAD VILLAGE,
TALUK AND DISTRICT DHARWAD-580009.
2. SMT. KASHIBAI
W/O. SHIVANAYAK PATIL
AGE: 64 YEARS,
OCC: HOUSEHOLD WORK AND AGRICULTURE,
R/O. GANDHINAGAR HUBBALLI,
TALUK: HUBBALLI,
DISTRICT DHARWAD-580004.
SRI. RAJASHEKHAR
S/O. LAXMANNAYAK PATIL
SINCE DECEASED BY HIS LRS,
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RFA No. 100284 of 2018
C/W RFA.CROB No. 100010 of 2018
HC-KAR
3. SRI. PRAKASH
S/O. RAJASHEKHAR PATIL,
AGE: 59 YEARS,
OCC: AGRICULTURE,
R/O. MADANABHAVI VILLAGE,
TALUK AND DISTRICT DHARWAD-580009.
4. SRI. MANJUNATH
S/O. RAJASHEKHAR PATIL
AGE: 57 YEARS,
OCC: AGRICULTURE,
R/O. MADANABHAVI VILLAGE,
TALUK AND DISTRICT: DHARWAD-580009.
5. SRI. SANTOSH
S/O. RAJASHEKHAR PATIL
AGE: 55 YEARS,
OCC: AGRICULTURE,
R/O. MADANABHAVI VILLAGE,
TALUK AND DISTRICT: DHARWAD-580009.
6. SRI. DEVARAJ
S/O. RAJASHEKHAR PATIL
AGE: 53 YEARS,
OCC: AGRICULTURE,
R/O. MADANABHAVI VILLAGE,
TALUK AND DISTRICT: DHARWAD-580009.
...RESPONDENTS
(BY SRI. ARUN L. NEELOPANT AND SMT. KAVITA S. JADHAV,
ADVOCATES FOR RESPONDENT NOS.1 AND 2;
VIDE ORDER DATED 06.02.2024 SERVICE OF NOTICE TO
RESPONDENT NOS.3 TO 6 IS DISPENSED WITH)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 28.04.2017 PASSED IN
O.S.NO.85/2009 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND CHIEF JUDICIAL MAGISTRATE, DHARWAD, PARTLY
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RFA No. 100284 of 2018
C/W RFA.CROB No. 100010 of 2018
HC-KAR
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
IN RFA CROB.NO.100010/2018:
BETWEEN:
1. SMT. SUMITRA
W/O. RAMANAYAK PATIL
AGE: 69 YEARS, OCCU: AGRICULTURE,
R/O. CHIKKAMALLIGAWAD VILLAGE,
TQ/DIST: DHARWAD-580007.
2. SMT. KASHIBAI
W/O. SHIVANAYAK PATIL
AGE:64 YEARS,
OCCU: HOUSEHOLD WORK AND AGRICULTURE,
R/O. GANDHINAGAR, HUBLI,
DIST: DHARWAD-580030.
...CROSS-OBJECTORS
(BY SRI. ARUN L. NEELOPANTH, ADVOCATE)
AND:
1. SRI. RAMANAYAK
S/O. DHARAMANAYAK PATIL
AGE: 58 YEARS,
OCCU: AGRICULTURE,
R/O CHIKKAMALLIGAWAD VILLAGE,
TQ/DIST: DHARWAD-580007.
2. SRI. APPASAB @ SHIVANAYAK
S/O. DHARMANAYAK PATIL
AGE: 54 YEARS,
OCCU: AGRICULTURE,
R/O CHIKKAMALLIGAWAD VILLAGE,
TQ/DIST: DHARWAD-580007.
3. SMT. ANNAKKA
W/O. BABASAB DESAI
AGE: 52 YEARS,
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RFA No. 100284 of 2018
C/W RFA.CROB No. 100010 of 2018
HC-KAR
OCCU: HOUSEHOLD,
R/O. C/O. RAMANAYAK
S/O. DHARAMANAYAK PATIL,
R/O CHIKKAMALLIGAWAD VILLAGE,
TQ/DIST: DHARWAD-580007.
4. SMT. MEERA
W/O. YANKANAGOUDA NAIK
AGE: 48 YEARS,
OCCU: HOUSEHOLD WORK,
R/O. C/O. GHODAGERI,
TQ: GOKAK-591107,
DIST: BELAGAVI.
5. SMT. SUJATA
W/O. RUDRAGOUDA PATIL
AGE: 46 YEARS,
OCCU: HOUSE HOLD,
R/O. C/O. RAMANAYAK
S/O. DHARAMANAYAK PATIL,
R/O CHIKKAMALLIGAWAD,
TQ/DIST: DHARWAD-580007.
6. PRAKASH
S/O. RAJASHEKHAR PATIL
AGE: 59 YEARS,
OCCU: AGRICULTURE,
R/O. MADANBHAVI VILLAGE,
TQ/DIST: DHARWAD-581105.
7. MANJUNATH
S/O. RAJASHEKHAR PATIL
AGE: 57 YEARS,
OCCU: AGRICULTURE,
R/O. MADANBHAVI VILLAGE,
TQ/DIST: DHARWAD-581105.
8. SANTOSH
S/O. RAJASHEKHAR PATIL
AGE: 55 YEARS,
OCCU: AGRICULTURE,
R/O. MADANBHAVI VILLAGE,
TQ/DIST: DHARWAD-581105.
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RFA No. 100284 of 2018
C/W RFA.CROB No. 100010 of 2018
HC-KAR
9. DEVARAJ
S/O. RAJASHEKHAR PATIL
AGE: 53 YEARS,
OCCU: AGRICULTURE,
R/O. MADANBHAVI VILLAGE,
TQ/DIST: DHARWAD-581105.
...RESPONDENTS
(BY SRI. DINESH M. KULKARNI AND SRI. VINAYAK B. HEGDE,
ADVOCATES FOR RESPONDENT NOS.1, 2, 3, 4 AND 5;
RESPONDENT NOS.6, 7, 8 AND 9 ARE SERVED AND UNREPRESENTED)
THIS RFA CROB. IS FILED UNDER ORDER XLI RULE 22(1) OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.04.2017
PASSED IN O.S.NO.85/2009 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, DHARWAD, PARTLY
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THIS RFA AND RFA CROB. HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 03.11.2025 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THROUGH VIDEO CONFERENCE THIS
DAY, R. NATARAJ J., DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE R.NATARAJ) The defendant Nos.1 to 5 in O.S.No.85/2009 on the file of the Principal Senior Civil Judge and CJM, Dharwad (henceforth -7- NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR referred to as 'Trial Court') have filed RFA No.100284/2018 challenging the judgment and decree dated 28.04.2017 passed therein whereby the Trial Court declared that the plaintiffs are entitled to 2/9th share each in certain suit schedule properties.
2. The plaintiffs in O.S.No.85/2009 have filed RFA Crob No.100010/2018 challenging the aforesaid judgment and decree dated 28.04.2017 in so far as it relates to refusal to partition some of the suit schedule properties.
3. RFA No.100284/2018 was heard and reserved on 30.06.2025. However, it was noticed that RFA No.100284/2018 was dismissed for default on 07.02.2024. Since no attempt was made for restoration of the appeal, RFA Crob. No.100010/2018 was allowed on 11.09.2024. Later, an application (I.A.No.2/2025) was filed in RFA No.100284/2018 for restoration on 26.03.2025 and the appeal was restored to file. Then R.P.No.100052/2025 was filed to review the judgment passed in RFA Crob. No.100010/2018. Though this bench heard the appeal and Cross-objection and R.P.No.100052/2025, the Registry informed us that RFA Crob.No.100010/2018 was disposed off by a different combination of judges and therefore, RP -8- NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR No.100052/2025 has to be listed before that combination. Accordingly, R.P.No.100052/2025 was listed before the other bench, which allowed it and RFA Crob. No.100010/2018 was restored for fresh consideration. In this process, the judgment could not be pronounced within three months, as required of us as per judgment of the Hon'ble Apex Court of India in Anil Rai vs. State of Bihar [(2001) 7 SCC 318].
4. For the sake of convenience, the parties shall henceforth be referred to as they were arrayed before the Trial Court. The appellants in RFA No.100284/2018 (respondent Nos.1 to 5 in RFA Crob No.100010/2018) were the defendant Nos.1 to 5, while respondent Nos.1 and 2 in RFA No.100284/2018 (Cross- objectors in RFA Crob No.100010/2018) were the plaintiffs and respondent Nos.3 to 6 in RFA No.100284/2018 (respondent Nos.6 to 9 in RFA Crob No.100010/2018) are the legal representatives of the deceased - defendant No.6.
5. The suit in O.S.No.85/2009 was filed for partition and separate possession of the plaintiffs' share in the suit schedule properties. The plaintiffs mentioned their genealogy as follows: -9-
NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR Shivanayak @ Shivangouda (Expired on 16.01.1952) Krishnavva w/o Shivanayak @ Shivangouda (Expired on 03.08.1993) Dharamnaik Sumitra Kashibai (Expired on w/o Ramanaik Patil w/o Shivanaik Patil 02.03.2008) (Pltf-1) (Pltf-2) Bayakka W/o Dharamnaik (Expired on 18.01.2008) Ramanaik Appasaheb Annakka Meera Sujata s/o @ Shivanaik w/o w/o w/o Dharamanaik D-2 Babasab Yankanagouda Rudragouda Patil Desai Naik Patil D-1 D-3 D-4 D-5
6. The suit properties were agricultural lands in Block Nos.25, 26, 45 and 198 of Chikkamalligwad, Block No.612 of Kelageri and Block No.88 of Daddikamalapur and a house property at Chikkamalligwad.
7. (i) The plaintiffs claimed that their father Sri. Shivanaika died on 16.01.1952 leaving behind him his widow Smt. Krishnavva, his daughters - plaintiff Nos.1 and 2 and his son - Sri. Dharmanaika. Smt. Krishnavva died on 03.08.1993 leaving behind the plaintiffs and Sri. Dharmanaika as her legal heirs. Sri. Dharmanaika died on 02.03.2008 leaving behind him
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR the defendant Nos.1 to 5. The plaintiffs claimed that the properties mentioned in the schedule to the plaint were joint family properties which stood in the name of the propositus Sri. Shivanaika. The plaintiffs claimed that after the death of Sri. Shivanaika, his widow Smt. Krishnavva and Sri. Dharmanaika succeeded to the suit properties. However, the name of Sri. Dharmanaika alone was entered in the record of rights as he was the Manager and kartha of the family. The plaintiffs therefore, contended that after the death of Smt. Krishnavva, they and Sri. Dharmanaika succeeded to the half share of Smt. Krishnavva. They claimed that after the death of Sri. Dharmanaika, defendant Nos.1 to 5 succeeded to the share of deceased - Dharmanaika. They claimed that the suit properties were not partitioned by metes and bound and hence, they had an undivided share. They also claimed that they were in joint possession and enjoyment of suit properties along with defendant Nos.1 to 5 and that they were getting their share in the crops grown in the suit properties.
(ii) The plaintiffs claimed that during first week of May, 2009, there were rumours that the defendant Nos.1 and 2 were
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR trying to alienate the suit properties to third parties even though there was no family necessity. Hence, they questioned the defendant Nos.1 and 2 and demanded the latter to partition and handover their share in the suit properties. They contend that they came to know about a false mutation in ME No.1050 based on a partition between Sri. Dharmanaika and defendant Nos.1 and 2 and that the name of defendant No.1 was entered in respect of Block Nos.26 and 45 and name of defendant No.2 was entered in respect of Block No.198. They claimed that these revenue entries were of no consequence and that they too were entitled to share in the suit properties.
8. (i) The suit was contested by the defendant No.1, who filed his written statement contending that the father of the plaintiffs Sri. Shivanaika died on 16.01.1952 leaving behind his wife Smt. Krishnavva, the plaintiffs and Sri. Dharmanaika. He claimed that Smt. Krishnavva died on 03.08.1993 leaving behind the plaintiffs and Sri. Dharmanaika and Sri. Dharmanaika died on 02.03.2008 leaving behind the defendant Nos.1 to 5. He denied that the suit properties were the properties of the joint family comprised of plaintiffs and defendant Nos.1 to 5. He denied that
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR the suit 'A' and 'B' properties earlier stood in the name of Sri. Shivanaika and after his death, it was entered in the name of Sri. Dharmanaika. He contended that the plaintiffs were born in the year 1944 and 1948 respectively. He claimed that since Sri. Shivanaika died on 16.01.1952, it was only his son Sri. Dharmanaika who had succeeded to the properties and accordingly, his name was entered in the revenue records on 26.11.1953. He claimed that during the life time of Sri. Dharmanaika, he and his son namely, the defendant No.1 entered into a partition as per which the revenue authorities passed a mutation order dated 22.08.1966 bearing ME.No.1050 and entered the names of Sri. Dharmanaika and defendant No.1. He claimed that though the plaintiffs knew about the partition in the year 1966 between Sri. Dharmanaika and defendant No.1, they did not take any steps to question it. He contended that since the properties were partitioned in the year 1966, the plaintiffs could not claim any share in the suit properties.
(ii) The defendant No.1 contended that after the partition in the year 1966, a few properties were resumed by the State Government under the Karnataka Village Offices Abolition Act,
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR 1961 and were re-granted to Sri. Dharmanaika. These lands were bearing Block Nos.26, 45, 198, 201, 88, 17, 13/26. He contended that since the plaintiffs were married prior to 1981, they were not members of the joint family and hence, were not entitled to any share. He contended that plaintiff No.2 also possessed land in Sy.No.103/1 of Halligeri village and likewise, plaintiff No.1 also had properties in her name. The defendant No.1 denied that the mutation in ME.No.1050 was falsely obtained based on the partition dated 22.08.1966.
(iii) In short, the defence of the defendant No.1 was that the father of the plaintiffs had died in the year 1952 and therefore, the plaintiffs were not entitled for any share in the suit properties.
9. The written statement filed by the defendant No.1 was adopted by the other defendants.
10. Based on these contentions, the Trial Court framed the following issues:-
1. Whether the Plaintiffs prove that the Suit Schedule A & B Properties are the Joint Family properties of the Plaintiff Nos.1 and 2 and
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR Defendants No.1 to 5 and they are in joint possession?
2. Whether the Defendants prove that Plaintiffs are not entitled for any share in Suit Schedule properties?
3. Whether the Plaintiffs are entitled for partition and separate possession thereof? If so what is the share to which the Plaintiffs are entitled?
4. What Decree or Order ?
11. The plaintiff No.2 was examined as PW.1 and she marked Exs.P1 to P9. The defendant Nos.5, 4 and 1 were examined as DWs.1 to 3 respectively and they marked Exs.D1 to D7.
12. (i) Based on the oral and documentary evidence, the Trial Court held that the plaintiffs had proved that the suit 'A' and 'B' properties belonged to the joint family. It held that the plaintiffs being the daughters were entitled to a share in the notional share of their father along with the defendants. Thus, it declared that the plaintiffs were entitled to 2/9th share each in Block Nos.25, 612 and 88 and house property, while the
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR defendants were together entitled to 5/9th share in the above properties.
(ii) In so far as the other properties are concerned, it held that Block Nos.26 and 45 were re-granted to the defendant No.1, while Block No.198 was re-granted in favour of Sri. Dharmanaika on 01.07.2000. It held that as per the case of the defendants, the date of birth of the plaintiff Nos.1 and 2 was 01.03.1944 and 01.04.1948 respectively. It noticed that plaintiff No.2 had deposed that she was married after 1960 while her elder sister was married prior to 1960. It therefore, held that the lands in Block Nos.26, 45 and 198 were re-granted after the marriage of the plaintiffs and therefore, the plaintiffs were not members of the joint family. It held that though the properties re-granted became the joint family properties, the re-grant in favour of defendant No.1 and Sri. Dharmanaika did not enure to the benefit of the plaintiffs and hence, held that they were the separate and exclusive properties of the defendant No.1.
(iii) As regards the share to which the plaintiffs were entitled to, it held that as per the Hindu Women's Rights to Property Act, 1937, Sri. Shivanaika, his wife Smt. Krishnavva
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR and son Sri. Dharmanaika were entitled to 1/3rd each in the properties bearing Block Nos.25, 88, 612 and house property. It held that the plaintiffs and Sri. Dharmanaika were entitled to a share out of the notional share of Sri. Shivanaika. It noticed that Smt. Krishnavva died intestate and therefore, as per Section 15 of the Hindu Succession Act, 1956, the share of Smt. Krishnavva devolved upon the plaintiffs and Sri. Dharmanaika equally. It thus held that the plaintiffs were entitled to 2/9th share in three agricultural lands and a house property mentioned above.
13. Being aggrieved by the said judgment and decree, the defendant Nos.1 to 5 have filed RFA No.100284/2018 challenging the share granted out of the notional share of their father. The plaintiffs have filed RFA Crob No.100010/2018 challenging the judgment and decree of the Trial Court in so far as it relates to refusal to partition land in Block Nos.26, 45 and
198.
14. The learned counsel for the defendant Nos.1 to 5 submitted that the Trial Court committed an error in allotting notional share to Sri. Shivanaika, who died in the year 1952. He
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR contended that as per the law that applied in the year 1952, it was only Sri. Dharmanaika, who was the sole surviving coparcener and he had succeeded to the properties. He therefore, contended that the plaintiffs who were not coparceners as on 16.01.1952 were not entitled to claim as coparceners. He contends that though the Trial Court noticed that the law applicable was the Hindu Women's Rights to Property Act, 1937, yet allotted a notional share to Sri. Shivanaika. He therefore, contended that the impugned judgment and decree of the Trial Court is extremely lopsided and the shares allotted to the plaintiffs is without any basis. In support his contention, he has relied upon the following judgments:-
(i) Eramma vs. Veerupana and others [AIR 1966 SC 1879]
(ii) Judgment of the High Court of Judicature of Bombay in Second Appeal No.593/1987
(iii) Judgment of Single Bench of this Court in RSA No.2620/2007 c/w RSA Crob No.54/2012
(iv) Annamma vs. Pattamma [ILR 1990 KAR 1696]
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR
15. Per contra, the learned counsel for the plaintiffs contended that even though Sri. Shivanaika died in the year 1952, the joint family continued after the year 1956 and therefore, the plaintiffs being members of the joint family were entitled to an undivided share in the suit properties. He contended that by virtue of the judgment of the Hon'ble Apex Court in Vineeta Sharma vs. Rakesh Sharma and others [(2020) 9 SCC 1], the plaintiffs were entitled to equal share along with Sri. Dharmanaika. He thus contended that the Trial Court was not justified in granting a share out of the notional share of Sri. Shivanaika. He further contended that the re-grant of land in Block Nos.26, 45 and 198 to the defendant No.1 and Sri. Dharmanaika must enure to the benefit of all the members of the family including the plaintiffs. He contended that though the plaintiff No.2 had admitted that the plaintiff No.1 was married prior to 1960 and she was married later, so long as the family was joint, the plaintiffs were entitled to an equal share along with the defendant No.1. He therefore, contended that impugned judgment and decree of the Trial Court in so far as it relates to denying the share in Block Nos.26, 45 and 198, is
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR liable to be modified. In support his contention, he has relied upon the following judgments:-
(i) Judgment of this Court in RFA No.714/2009 c/w RFA Crob No.7/2010
(ii) Judgment of the Hon'ble Apex Court in SLP (Civil) Dairy No.113/2024
(iii) Vineeta Sharma vs. Rakesh Sharma and others [(2020) 9 SCC 1]
(iv) Arshnoor Singh vs. Harpal Kaur and others [AIR 2019 SC 3098]
(v) Imamsa Chandas Gurikar since deceased by LRs and others vs. Mohdinsa Nabisa Gurikar since deceased by LRs [2018 (2) KCCR 1520]
16. We have given our anxious consideration to the arguments advanced by the learned counsel for the defendant Nos.1 to 5 and learned counsel for the plaintiffs. We have also perused the records of the Trial Court and its judgment and decree.
17. A re-examination of the pleadings, evidence, findings of the Trial Court and the arguments canvassed before us, throws up the following points for our consideration:
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(i) In view of the admitted position that the father of the plaintiffs died on 16.01.1952, whether the plaintiffs were entitled to a share in the suit schedule properties as coparceners?
(ii) Whether the Trial Court was justified in allotting a notional share to the propositus Sri. Shivanaika, who died on 16.01.1952 and whether the Trial Court was justified in allotting a share therein to the plaintiffs?
(iii) Whether the Trial Court was justified in allotting the share of Smt. Krishnavva to the plaintiffs and the defendant No.1?
(iv) Whether the Trial Court was justified in denying the share to the plaintiffs in Block Nos.26, 45 which were re-granted to defendant No.1 and Block No.198, which was re-granted to Dharmanaika?
18. Before we answer the points, it is relevant to note that the suit was filed in respect of agricultural lands in Block Nos.25, 26, 45 and 198 of Chikkamalligwad, Block No.612 of Kelageri and Block No.88 of Daddikamalapur and a house property at Chikkamalligwad. The Trial Court decreed the suit in
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR so far as Block Nos.25, 612 and 88 and house property and declared that the plaintiffs are entitled to 2/9th share therein. The reliefs sought in respect of Block Nos.26, 45 and 198 was refused by the Trial Court on the ground that they were granted to defendant No.1 and Sri. Dharmanaika and that such grant did not enure to the benefit of the plaintiffs as they were married prior to and after 1960 and thus were not members of the joint family.
19. (i) In so far as the first and second points for consideration framed by us, the plaintiffs emphatically stated in the plaint that their father died on 16.01.1952 leaving behind his wife, Smt. Krishnavva, plaintiffs and Sri. Dharmanaika. Therefore, it can be held without any doubt that as on 16.01.1952, it was only Sri. Dharmanaika and Smt. Krishnavva, who were entitled to succeed to the properties of the family since parties belonged to the Bombay School of Mitaskhara, where the widow took an equal share along with the son [Re. Gurupad Khandappa Magdum vs Hirabai Khandappa magdum and others [AIR 1978 SC 1239]] As rightly contended by the learned counsel for the defendant Nos.1 to 5, the plaintiffs were
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR not coparceners prior to the year 1956, were only entitled to be maintained by the joint family. They were not even entitled to a share out of the share of their father. The provisions of the Hindu Succession Act, 1956 had no retrospective effect to affect the succession that had taken place soon after the death of Shivanaika on 16.01.1952. In this regard, it is profitable to refer to the judgment of the Hon'ble Apex Court in Eramma vs. Veerupana and others [AIR 1966 SC 1879], where it was held as follows:-
"It is clear from the express language of the section that it applies only to coparcenary property of the male Hindu holder who dies after the commencement of the Act. It is manifest that the language of Section 8 must be construed in the context of Section 6 of the Act. We accordingly hold that the provisions of Section 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act came into force i.e. where succession opened before the Act, Section 8 of the Act will have no application."
(ii) Similarly, in the case of Arshnoor Singh vs Harpal Kaur and others [AIR 2019 SC 3098], it was held as follows:-
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR "If succession opened under the old Hindu law i.e. prior to the commencement of the Hindu Succession Act, 1956, the parties would be governed by Mitakshara law. The property inherited by a male Hindu from his paternal male ancestor shall be coparcenary property in his hands vis-à-vis his male descendants upto three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act, 1956."
(iii) The applicable law in the event of death of a propositus in the year 1952 was the Hindu Women's Rights to Property Act, 1937.
(iv) Section 3(2) and 3(3) of the Hindu Women's Rights to Property Act, 1937 reads as follows:
"3. Devolution of property:
(1) xxxxxx
(2) When a Hindu governed by any school of Hindu
Law other than the Dayabhaga School or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR provisions of sub-section (3), have in the property the same interest as he himself had.
(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu women's estate, provided however that she shall have the same right of claiming partition as a male owner."
(v) Therefore, the daughters were not entitled to any right under the Hindu Women's Rights to Property Act, 1937. In similar circumstances, the Hon'ble Apex Court in Kasabai Tukaram Karvar and others vs Nivruti (Dead) Through Legal Heirs and others [2022 SCC OnLine SC 918] held as follows:-
"It is, undoubtedly, true that in view of the Hindu Women's Rights to Property Act, 1937 (XVIII of 1937), the widow, inter-alia, is also recognized as an heir. There was, as on the date when the succession opened, in this case in the year 1948, the daughter (the appellant) who would not have any right. The daughter would not be a coparcener which she, undoubtedly, is under the present dispensation in view of the sweeping developments which took place in the matter of succession which have been ushered in as a result of the Hindu Succession Act and the
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR changes that have been engrafted therein. The plaintiff daughter would not be an heir, in view of the notional existence of the adopted son by virtue of the doctrine of relation back."
(vi) The contention of the learned counsel for the plaintiffs that the provisions of Hindu Succession Act, 1956 as amended by Act of 2005 is applicable, is liable to be rejected outrightly as it related to succession after the passage of the Act and did not in any manner affect succession prior to it. Likewise, the judgment of the Hon'ble Apex Court in Vineeta Sharma, referred supra, is only in respect of rights of a daughter under the Act, 1956 and was not concerning her right prior to the Hindu Succession Act, 1956.
(vii) Consequently, the Trial Court committed an error in applying Section 6 of the Hindu Succession Act, 1956 by allotting a notional share to Sri. Shivanaika and declaring the shares of the plaintiffs.
20. As regards the third point for consideration is concerned, Smt. Krishnavva being a widow was entitled to take an equal share in the properties of the family along with her son Sri. Dharmanaika. The Trial Court instead of considering this,
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR had divided the properties between Sri. Dharmanaika, Smt. Krishnavva and the deceased - Shivanaika. Since Smt. Krishnavva was a widow, she and Sri. Dharmanaika took equal share and hence, the judgment and decree of the Trial Court allotting 1/3rd share to Krishnavva is not justified as she was entitled to half share in the properties.
21. As regards the fourth point for consideration, the defendants claimed that Block Nos.26, 45 and 198 were re- granted to defendant No.1 and Sri. Dharmanaika during 1980 and 01.07.2000 respectively and therefore, the plaintiffs were not entitled to any share. The defendant Nos.1 to 5 ought to have produced documents to establish when and how the aforesaid three parcels of land were cultivated by them. The defendant Nos.1 to 5 could have filed or summoned the application seeking re-grant or occupancy rights from the land Tribunal or the authority concerned or the evidence adduced by them in support of the application to establish that they were cultivating the said lands on their own and without the assistance of the plaintiffs. If they had declared in the application that the aforesaid land was earlier cultivated by Shivanaika and later
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR continued by the joint family, the re-grant of said land would definitely enure to the benefit of the plaintiffs. It is appropriate to note at this stage that the plaintiffs were members of the joint family whose prime occupation was agriculture and hence, it is probable that the plaintiffs contributed their labour for cultivation of the land or in the upkeep of the family. In this regard, it is profitable to refer to the judgment of the Apex Court in N.Padmamma and others vs S.Ramakrishna Reddy and others [(2015) 1 SCC 417] and the Judgment of this Court in Imamsa Chandas Gurikar since dead by Lrs & others vs Mohdinsa Nabisa Gurikar since dead by Lrs [2018 (2) KCCR 1520]. The only documents furnished by the defendants were the school certificates (Exs.D1 and D2) to show the date of birth of the plaintiffs and Exs.D3 to D7, which were the mutation entries dated 20.01.1948 (Ex.D3), mutation No.771 dated 16.11.1953 (Ex.D4), mutation dated 22.08.1966 (Ex.D5) between Sri. Dharmanaika and defendant No.1. A mutation order to enter the name of State Government in respect of certain lands that were resumed under Sections 4, 5, 6, 7 and 9 of the Mysore Village Offices Abolition Act, 1961 (Ex.D6). Ex.D7 is the record to indicate that an order dated 01.01.2000 was
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR passed by the Tahsildar in respect of Block Nos.26 and 45. The oral evidence adduced by the defendants is very patchy and does not help them in any way. The defendant No.5 was examined as DW.1, defendant No.4 was examined as DW.2. They were aged 39 and 42 years in the year 2017 and hence, were born in 1978 and 1975 respectively. Defendant No.1 was examined as DW3. He did not even mention that the lands bearing Block Nos.26, 45 and 198 were cultivated personally by Sri. Dharmanaika and the defendant No.1. On the contrary, he claimed in his chief examination as follows:-
"10. £Á£ÀÄ ªÀÄÄAzÀĪÀgÉzÀÄ ºÉüÀĪÀÅzÉ£ÉAzÀgÉ ¸ÀzÀj D¥À¸Ávï ªÁnßAiÀiÁzÀ ªÉÄÃ¯É PÉ®ªÉÇAzÀÄ D¹ÛUÀ¼ÀÄ UÁæªÀÄ ZÁPÀj PÁAiÉÄÝAiÀÄrAiÀÄ°è ¸ÀPÁðgÀPÉÌ ¸ÀA§AzsÀ¥ÀnÖzÀݪÀÅ CªÀÅUÀ¼À£ÀÄß ¥ÀÄ£Àgï jUÁæöåAmï DzÀ £ÀAvÀgÀ, £ÀªÀÄä vÀAzÉAiÀĪÀgÁzÀ zsÀªÀÄð£ÁAiÀÄPÀ ²ªÀ£ÁAiÀÄPÀ ¥Ánî EªÀ£ÉƧâ¤UÉ ºÉ¸ÀjUÉ ¨ÁèPï £ÀA.26, ¨ÁèPï £ÀA.45, ¨ÁèPï £ÀA.198, ¨ÁèPï £ÀA.201, ¨ÁèPï £ÀA.88, ¨ÁèPï £ÀA.198, ¨ÁèPï £ÀA.17, ¨ÁèPï £ÀA.13/26 E¤ßvÀgÉ »ÃUÉ PÉ®ªÉÇAzÀÄ D¹ÛUÀ¼À£ÀÄß ¢£ÁAPÀ: 1980 £ÀAvÀgÀzÀ°è E¹éAiÀÄ°è jUÁæöåAmï ªÀiÁrzÀÝjAzÀ ªÀÄvÀÄÛ F M¼ÀUÁV ¸ÀzÀj ªÁ¢UÀ¼À «ªÁºÀªÀÅ PÀÆqÁ 1981 £Éà E¹éAiÀÄ ¥ÀƪÀðzÀ°è DVgÀĪÀÅzÀjAzÀ CªÀgÀÄ C«¨sÀPÀÛ PÀÄlÄA§zÀ ¸ÀzÀ¸ÀågÀÄ DUÀĪÀÅ¢®è."
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR
22. The defendant Nos.1 to 5 did not produce any documents to establish that Block Nos.26, 45 and 198 were cultivated exclusively by them either as Inamdar or as tenants under Inamdars. Consequently, in the absence of any proof that the defendant No.1 and his father were the absolute owners of the aforesaid three items of properties and as the plaintiffs continued to hold an undivided interest even after their marriage, they were entitled to partition and separate possession of their undivided share in the said properties. As a result, point No.4 is answered accordingly.
23. In view of the above findings, the following order is passed :
ORDER
(i) RFA No.100284/2018 and RFA Crob No.100010/2018 are allowed in part.
(ii) It is held that the plaintiffs are entitled to 1/6th share each in suit items in Block No.25 of Chikkamalligwad, Block No.612 of Kelageri and Block No.88 of Daddikamalapur as well as the house property described in schedule 'B'. The
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NC: 2025:KHC-D:15090-DB RFA No. 100284 of 2018 C/W RFA.CROB No. 100010 of 2018 HC-KAR plaintiffs are entitled to 1/3rd share each in Block Nos.26, 45 and 198 of Chikkamalligwad. The plaintiffs are also entitled to mesne profits.
(iii) Likewise, the defendants are together entitled to 2/3rd share in Block No.25 of Chikkamalligwad, Block No.612 of Kelageri and Block No.88 of Daddikamalapur as well as the house property described in schedule 'B'. The defendants are together entitled to 1/3rd share in Block Nos.26, 45 and 198 of Chikkamalligwad.
(iv) Parties shall bear their own costs.
(v) Registry is directed to draw a decree in terms of this judgment.
Sd/-
(R.NATARAJ) JUDGE Sd/-
(RAJESH RAI K) JUDGE PMR List No.: 19 Sl No.: 1