Ningappa vs Kasturibai And Anr
2021 Latest Caselaw 5255 Kant

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         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 02ND DAY OF DECEMBER, 2021

                       BEFORE

        THE HON'BLE MR.JUSTICE M.G.S.KAMAL

                 RFA No.200116/2019

BETWEEN

NINGAPPA S/O MUTTAPPA KUMBAR
AGE: 50 YEARS OCC: AGRICULTURE
R/O SALOTAGI VILLAGE TQ:INDI
DIST:VIJAYAPUR
                                         ...APPELLANT

(BY SRI D. P. AMBEKAR, ADVOCATE)

AND

1.     KASTURIBAI W/O NINGAPPA KUMBAR
       BEFORE MARRIAGE KASTURIBAI
       D/O MUTTAPPA KUMBAR, AGE: 55 YEARS
       OCC: GRIL & HH WORK, R/O KAMANAKATTI
       COLONY TALIKOT TQ:MUDDEBIHAL
       DIST VIJAYAPUR

2.     PARVATHI W/O MALLIKARJUN KUMBAR
       AGE: 52 YEARS OCC: HOUSEHOLD WORK
       R/O C/O MALIKARJUN KUMBAR TEACHER
       SALOTAGI VILAGE, TQ:INDI, DIST: VIJAYAPUR
                                       ...RESPONDENTS

(BY SRI AJAYKUMAR A KALAGI, ADVOCATE FOR R1)
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   THIS RFA FILED U/S 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 15.03.2019 PASSED IN
O.S.NO.28/2016 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, INDI, WHEREIN, THE SUIT WAS
DECREED.

     THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-

                          JUDGMENT

This appeal is filed by defendant No.1 under Section

96 of CPC against the judgment and decree dated

15.03.2019 passed in O.S.No.28/2016 on the file of the

Senior Civil Judge and JMFC at Indi (for short 'Trial Court).

2. Parties are referred to as per their rankings

before the Trial Court.

3. The subject matter of the suit is immovable

properties, which are as under:

  Sl.No.   RS No.         Area        Assessment   Village
  1.       78/*/2         02-19       01-27        Salotagi
  2.       625/*/3        10-09       14-46        Salotagi
  3.       67/1           07-00       02-50        Salotagi

4. It is the case of the plaintiff that the plaintiff

and the defendants are the children of one Muttappa and

Payakka and that suit schedule properties being the landed

properties and house property are the ancestral properties

of the plaintiff and the defendants. That their father

Muttappa had passed away on 08.08.2001 and their

mother Payakka also passed away during the year 2014.

It is the case of the plaintiff that during the life time of her

parents, there was a partition equally dividing the suit

properties amongst the plaintiff and the defendants and

thus they were jointly cultivating the land and yielding

food grains. That defendant No.1 by misguiding the

plaintiff had taken her signature on a blank paper on the

pretext of same being required for withdrawal of

compensation amount from the KBJNL in respect of the

acquired land forming part of suit properties to the extent

of 19 guntas. Misusing the signature of the plaintiff on the

said document, defendant No.1 alleged to have created

documents entitling as relinquishment deed. Though the

plaintiff had 1/3rd share in the suit property, the defendant

No.1 is not effecting the partition and allotting the share of

the plaintiff. That the defendant No.1 is denying the right

of the plaintiff based on the alleged relinquishment deed

and attempting to alienate the suit properties, thereby

constraining the plaintiff to file a suit for partition and

separate possession.

5. Upon service of notice, defendant No.1 had

appeared before the Trial Court and filed his written

statement. Defendant No.2 has adopted the written

statement filed by defendant No.1. It is contended by

defendant No.1 that the marriage of the plaintiff and

defendant No.2 was solemnized about 30 years back and

that there was no joint family as such. It was denied that

he had created false and fabricated documents and

presented before the revenue office for effecting the

mutation. It is contended that upon the advice of the

elders of the village, he had given six tolas of gold to the

plaintiff and defendant No.2 in lieu of their share in the suit

properties. Upon such advice, the name of defendant No.1

was mutated in the revenue records and the plaintiff and

defendants had jointly given Vardi before the revenue

authority for change of records. It is also denied that

there was a partition during the life time of father and

mother of the plaintiff equally dividing the suit properties

allotting their respective share, as contended by the

plaintiff. Thus, he contended that there was no question of

denial of the right of the plaintiff as she did not have any

share in the suit properties.

6. Based on the pleadings of the parties, the Trial

Court framed the following issues:

1. Whether plaintiff proves that suit properties are ancestral joint family properties?

2. Whether the plaintiff is entitled to claim partition and separate possession of her 1/6th share in the suit properties?

3. Whether plaintiff further proves that she is entitled for 1/3rd share in the suit properties as claimed?

4. What order or decree?

Additional issues:

1. Whether the defendant No.1 proves that plaintiffs No.1 and 2 have released and relinquished their right in suit property in favour of defendant No.1 by taking 6 tolas of gold of each from defendant No.1 in lieu of their share in suit property?

2. Whether plaintiff proves that in the family arrangement effected by the father and mother of plaintiff during their lifetime have allotted share to the plaintiff and defendants in al the suit properties equally?

3. Whether plaintiff proves that the defendant No.1 by misguiding the plaintiff has taken signature on the blank papers on the pretext of withdrawing the compensation amount for the KBJNL and created false and fabricated document and presented the same to the revenue authorities?

7. The plaintiff examined herself as PW.1 and

exhibited 10 documents marked as Exs.P1 to P10. On

behalf of the defendants, defendant Nos.1 and 4 have

been examined as DWs.1 and 4 and other two witnesses

have been examined as DWs.2 and 3 and exhibited 3

documents marked as Exs.D1 to D3.

8. The Trial Court by the impugned judgment and

order decreed the suit with costs by granting the relief of

partition, holding that the plaintiff is entitled for 1/3 rd

share in the suit properties and house property. Aggrieved

by the same, defendant No.1 is before this Court in this

appeal.

9. The learned counsel for the

appellant/defendant No.1 reiterating the grounds urged in

the appeal memorandum submitted that the Trial Court

had ignored the admission of the plaintiff in her evidence

treating the same as a stray sentence has granted the

relief. He submits that the Trial Court has not taken into

consideration the relinquishment of share made by the

plaintiff. Since the relinquishment deed being between co-

sharers and there was no transfer of property for the first

time in favour of a party and the same was only a variation

of shares, it did not require any registration. It is

submitted that the father of the plaintiff and defendants

had expired on 08.08.2001, the law applicable as on that

date alone must be applied and therefore, the share of the

plaintiff has to be calculated as per notional partition and

not as per Section 6 of the Hindu Succession Act, which

came into force from 09.09.2005. Thus, it is submitted

that the appeal be allowed and the judgment and decree of

the Trial Court be set aside.

10. On the other hand, the learned counsel for the

respondents submits that the issue involved in this appeal

is no more res integra. In the light of the judgment of the

Apex Court in the case of Vineeta Sharma vs. Rakesh

Sharma and Others reported in (2020) 9 SCC 1, the

issue with regard to interpretation of Section 6 of the

Hindu Succession Act need not be gone into. He submits

that admittedly the suit properties are the ancestral

properties belonging to one Muttappa Kumbar, the father

of the plaintiff and the defendants. After his demise, the

plaintiff and defendant No.2 being the daughter and

defendant No.1 being the son are entitled for equal share.

Further adverting to the issue with regard to the

relinquishment deed, he submits that no such

relinquishment deed was ever be executed. Therefore, he

submits that the defendants cannot claim any right, title

and interest in respect of the suit schedule properties to

the extent of 1/3rd belonging to the plaintiff without there

being any conveyance in the manner known to law.

Therefore, he submits that the appellant has not made out

any ground for allowing the appeal.

11. Considering the rival submission made by the

learned counsel for the parties, the only point that arises

for consideration in this appeal is:

Whether the judgment and decree passed by the Trial Court decreeing the suit of the plaintiff requires any interference?

12. The relationship between the parties being the

children of late Mutttappa Kumbar and Payakka is not in

dispute. The suit schedule properties being the ancestral

properties is also not in dispute. It is not the case of the

defendants that there was any partition that had taken

place at any time prior to filing of the suit. On the other

hand, it is the case of the defendants that the plaintiff had

purportedly relinquished her share in lieu of receipt of 6

tolas of gold and that upon advice of elders of the village,

defendant No.1 had mutated his name in the revenue

records. The defendants having set up the theory of

relinquishment of share by the plaintiff ought to have

discharged the same in the manner known to law. The

defendants have produced the order copy of the mutation,

the application addressed to the Tahsildar, Indi and copy

of Form No.21. Except these documents, they have not

produced any other registered deed or document. Even

the so called relinquishment deed is also not forthcoming.

They have also not produced any evidence with regard to

they having given 6 tolas of gold to the plaintiff.

Therefore, the said contention/defence raised by the

defendants cannot be countenanced.

13. As regard the arguments pertaining to the

death of father of the plaintiff and defendants prior to

coming into force of Section 6 of the Hindu Succession Act,

the same is no longer res integra in the light of the law laid

down by the Apex Court in the case of Vineeta Sharma

(Supra).

14. In the above facts and circumstances and

aforesaid settled position of law and also in the view of the

defendants having failed to establish and prove the

relinquishment of share by the plaintiff, the

appellant/defendant No.1 has not made out any ground for

interference. Therefore, the following:

ORDER

The appeal filed by the

appellant/defendant No.1 is hereby dismissed.

The judgment and decree passed by the

Trial Court in O.S.No.28/2016 is confirmed.

Sd/-

JUDGE Srt