Shankrappa S/O. Chanaveerappa ... vs Iravva W/O. Gadigeppa Ecchangi
2021 Latest Caselaw 2705 Kant

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           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

        DATED THIS THE 8TH DAY OF JULY, 2021

                        PRESENT

       THE HON'BLE MR. JUSTICE R.DEVDAS

                          AND

       THE HON'BLE MS. JUSTICE J.M.KHAZI

                 R.F.A.No.4228/2013
                         c/w
     R.F.A.No.100367/2018 (PAR. & SEP. POSSN.)


IN R.F.A.No.4228/2013

BETWEEN:

1.   SMT.IRAVVA W/O. GADIGEPPA ECHCHANGI,
     AGE: 59 YEARS, OCC: AGRICULTURE,
     R/O. KENGAPUR, TQ:SHIGGAON,
     DIST: HAVERI-584501.

2.   SMT.GIRIJAVVA W/O. MALLIKARJUNAPPA PYATI,
     AGE: 54 YEARS, OCC: AGRICULTURE,
     R/O. KALASA, TQ: KUNDAGOL,
     DIST: DHARWAD-581113.

3.   SMT.CHANNABASAVVA W/O. DEVENDRAPPA KANAVI,
     AGE: 50 YEARS, OCC: AGRICULTURE,
     R/O. KOLIWAD, TQ: HUBLI,
     DIST: DHARWAD-581113.                ..APPELLANTS

(BY SRI.K.L.PATIL AND
    SMT.PADMAJA TADAPATRI, ADV.)
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AND:

1.     SRI SHANKRAPPA S/O. CHANNAVEERAPPA AKKI,
       AGE: 52 YEARS, OCC: AGRICULTURE
       R/O. YARAGUPPI, TQ: KUNDAGOL
       DIST: DHARWAD-581113.

2.     CHANNAPPA S/O. CHANNAVEERAPPA AKKI,
       AGE: 46 YEARS, OCC: AGRICULTURE,
       R/O. YARAGUPPI, TQ: KUNDAGOL,
       DIST: DHARWAD.

3.     MALLIKARJUN S/O. JAMPANNA BENTUR,
       AGE: 44 YEARS, OCC: AGRICULTURE,
       R/O. YARAGUPPI, TQ: KUNDAGOL,
       DIST: DHARWAD.                   ...RESPONDENTS

(BY SRI PRAKASH UDIKERI, ADV. FOR R1,
    RESPONDENT No.2 SERVED,
    SRI DINESH M.KULKARNI, ADV. FOR R3)

      THIS APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF
CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED
25.10.2013 PASSED IN O.S.No.112/2009 ON THE FILE OF THE
FIRST ADDL. SENIOR CIVIL JUDGE, HUBLI, DECREEING THE SUIT
FILED FOR PARTITION AND SEPARATE POSSESSION.

IN R.F.A.No.100367/2018

BETWEEN

SHANKRAPPA S/O. CHANAVEERAPPA AKKI,
AGE:54 YEARS, OCC:AGRICULTURE,
R/O YARAGUPPI, TQ:KUNDAGOL,
DIST:DHARWAD.                             ...   APPELLANT

(BY SRI PRAKASH S UDIKERI, ADV.)

AND

1.     SMT.IRAVVA W/O. GADIGEPPA ECCHANGI,
       AGE:61 YEARS, OCC:AGRICULTURE,
       R/O. KENGAPUR, TQ:SHIGGAON,
       DIST:HAVERI.
                             3




2.   GIRIJAVVA W/O. MALLIKARJUNAPPA PYATI,
     AGE:58 YEARS, OCC:AGRICULTURE,
     R./O KALASA, TQ:KUNDAGOL,
     DIST:DHARWAD.

3.   CHANNABASAVVA W/O. DEVENDRAPPA KANAVI,
     AGE:50 YEARS, OCC:AGRICULTURE,
     R/O. KOLIWAD, TQ:HUBLI,
     DIST:DHARWAD.

4.   CHANNAPPA S/O. CHANAVEERAPPA AKKI,
     AGE:46 YEARS, OCC:AGRICULTURE,
     R/O. YARAGUPPI, TQ:KUNDAGOL,
     DIST:DHARWAD.

5.   MALLIKARJUN S/O. JAMPANNA BENTUR
     AGE:44 YEARS, OCC:AGRICULTURE,
     R/O. YARAGUPPI, TQ:KUNDAGOL,
     DIST:DHARWAD.                  ... RESPONDENTS

(BY SRI K.L.PATIL AND
    SMT.PADMAJA TADAPATRI, ADV. FOR R1 TO R3,
    SRI DINESH M.KULKARNI, ADV. FOR R5)

      THIS RFA FILED UNDER SEC. 96 READ WITH ORDER 41 RULE
1 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD.25.10.2013
PASSED IN O.S.NO.112/2009 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE, HUBLI, PARTLY DECREEING THE SUIT FILED
FOR PARTITION AND SEPARATE PRONOTE, POSSESSION AND
INJUNCTION.

     THESE APPEALS COMING ON FOR FINAL HEARING, THIS DAY,
R.DEVDAS J., DELIVERED THE FOLLOWING:

                        JUDGMENT

R.DEVDAS J., (ORAL):

These two Regular First Appeals have been filed by the

plaintiffs and defendant No.1 assailing the portion of the

judgment and decree in O.S.No.112/2009.

2. For the sake of convenience, the parties shall be

addressed as per their rank before the trial Court.

3. Plaintiffs are the daughters and defendants 1 and

2 are the sons of late Shri Chennaveerappa Akki. Defendant

No.3 purchased Item No.4 of the suit schedule properties from

defendant No.1, under a sale deed dated 15.06.2009. The suit

is filed by the plaintiffs/daughters claiming partition and

separate possession of their 1/5th share each in the suit

schedule properties and for a declaration that the sale deed

dated 15.06.2009 in respect of Item No.4 of the suit schedule

properties, is not binding on the plaintiffs, further a decree of

permanent injunction restraining the defendants from

interfering with their peaceful possession and enjoyment of

the suit schedule properties is also prayed for.

4. The relationship between the plaintiffs and

defendants 1 and 2 is admitted. Defendant No.1 filed written

statement claiming a prior partition in the year 1989 and that

Item No.4 of the suit schedule properties fell into his share

and therefore, there is no illegality in defendant No.1

disposing of the property in favour of defendant No.3. The

contention of defendant No.1 that there was a prior partition

has been negatived by the trial Court. Consequently, the

alternative plea of defendant No.1 disposing of Item No.4 of

the suit schedule properties for family necessities was also

negatived. The trial Court held that the sale was not for legal

or family necessities of the joint Hindu family. However, while

decreeing the suit, the trial Court directed that Item No.4 of

the suit schedule properties which was disposed of in favour of

defendant No.3 should be allotted to the share of defendant

No.1 so that the interest of defendant No.3 is protected.

Consequently, the entitlement of defendant No.1 in the other

items of the suit schedule properties was required to be

adjusted accordingly.

5. Insofar as plaintiff No.1 is concerned, the trial

Court has come to a conclusion that she being a daughter

born prior to 1956, in terms of the judgment in PRAKASH VS.

PHULAVATI reported in (2016) 2 SCC 36, a notional

partition was required to be applied and it was held that

plaintiff No.1 is entitled for 1/25th share and the plaintiffs 2

and 3 are entitled for 6/25th share each in Item Nos.1 to 9 of

the suit schedule properties. It is necessary to notice that

Item No.10 of the suit schedule properties is a tractor and

trailer and the suit regarding Item No.10 has been dismissed,

on the ground that it was purchased by defendant No.1 out of

his own funds.

6. At the outset, the learned counsel for the

appellants/plaintiffs submits that in view of the latest decision

of the Hon'ble Supreme Court in the case of VINEETA

SHARMA VS. RAKESH SHARMA AND OTHERS reported in

(2020) 9 SCC 1, the decision in PRAKASH VS. PHULAVATI

also fell for consideration and the Hon'ble Supreme Court has

held that the daughters born before or after the amendment

are entitled in the same manner as a son with same rights and

liabilities, under Section 6 of the Hindu Succession Act, 1956.

Therefore, having regard to the latest position of law as

enunciated in Vineeta Sharma's case, plaintiff No.1 is also

entitled for an equal share along with the other plaintiffs.

7. As regards Item No.4 of the suit schedule

properties, it is once again contended at the hands of the

plaintiffs/appellants that the ancestors' tombs are present in

Item No.4 of the suit schedule properties and therefore, they

have a sentimental attachment to the said property and

therefore, the decision of the trial Court in allotting Item No.4

of the suit schedule properties to defendant No.1 should be

reconsidered.

8. In the connected appeal filed by defendant No.1,

the contention of prior partition is once again reiterated.

9. Having heard the learned counsel counsels and on

perusing the memoranda of appeals and the trail Court

records, we find that insofar as plaintiff No.1 is concerned, in

view of the latest position of law declared by the Hon'ble

Supreme Court in the case of VINEETA SHARMA, plaintiff

No.1 will be entitled for an equal share along with the other

plaintiffs and defendants 1 and 2, in terms of Section 6 of the

Hindu Succession Act, 1956. To that extent, the decision of

the trial Court is required to be modified.

10. Insofar as the other contention of the appellants

that since there are tombs of the ancestors on Item No.4 of

the suit schedule properties, the plaintiffs are entitled for a

share, we should notice that this issue was considered by the

trial Court and it is found that the plaintiffs have not produced

any evidence to substantiate their contention that the

ancestors' tombs are present on Item No.4 of the suit

schedule properties. On this ground, the contention of the

plaintiffs was rejected by the trial Court. The plaintiffs have

not filed any application for production of additional

documents to substantiate their contention before this Court.

Therefore, there being no new set of facts that are brought

before the Court or any evidence which would require

reconsideration of the issue, we do not feel that the issue

requires reconsideration. Even otherwise, we have seen that

if the lands are acquired by the State or the State agencies,

the existence of ancestral tombs on the lands would not have

any bearing in the matters of land acquisition and this Court

has negatived such contentions raised at the hands of land

owners. Moreover, the land was purchased by defendant No.3

in the year 2009 and 12 years have gone by and defendant

No.3 has been beneficially enjoying the property. For the

reasons stated above, the contention of the appellants in this

regard is required to be rejected.

11. Similarly, defendant No.1 has also failed to

substantiate his contention that there was a prior partition.

Therefore, the appeal preferred by defendant No.1 is also

liable to be rejected.

12. Consequently, the appeal in R.F.A.No.4228/2013

filed by the plaintiffs is partly allowed. Consequently, plaintiffs

and defendants 1 and 2 are entitled for 1/5th share each in

item Nos.1 to 9 of the suit schedule properties. The judgment

and decree of the trial Court as regards Item No.4 of the suit

schedule properties shall remain intact.

A preliminary decree for partition shall be drawn

accordingly.

The connected appeal in R.F.A.No.100367/2018 is

accordingly dismissed.

(Sd/-) JUDGE

(Sd/-) JUDGE

Jm/-