Karnataka High Court
Smt Yamanavva @ Parvati vs Sri Tippanna S/O Mallappa ... on 22 August, 2022
Bench: H.P.Sandesh
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RFA No.1150/2007
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR FIRST APPEAL NO.1150/2007 (PAR)
BETWEEN:
SMT. YAMANAVVA @ PARVATI,
W/O GANGAPPA CHINCAHLI,
AGED 30 YEARS,
OCC:HOUSEHOLD WORK,
R/O SHIROL, MUDHOL TQ.,
BAGALKOT DISTRICT-587 313.
...APPELLANT
(BY SRI PRASHANT S. HOSMANI, ADVOCATE)
AND:
SRI TIPPANNA,
S/O MALLAPPA HOSAKOTI,
AGED 45 YEARS,
OCC: AGRIL,
Digitally signed
by J MAMATHA R/O JAGADAL, JAMKHANDI TQ.
J Location:
MAMATHA Dharwad SINCE DEAD BY LRS.
Date: 2022.08.25
10:31:42 +0530
1A. SMT. NEELAVVA,
W/O TIPPANNA HOSAAKOTI,
MAJOR,
OCC:HOUSEHOLD WORK,
R/O JAGADAL, JAMKHANDI TALUK-587301.
1B. SRI SANGAPPA,
S/O TIPPANNA HOSAAKOTI,
MAJOR,
OCC: HOUSEHOLD WORK,
R/O JAGADAL, JAMKHANDI TALUK-587301.
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RFA No.1150/2007
1C. SMT. KALLAVVA,
W/O BHIMAPPA ULLAGADDI,
MAJOR,
OCC: HOUSEHOLD WORK,
R/O JAGADAL, JAMKHANDI TALUK-587301.
1D. KUMARI SAYANNAVVA,
D/O TIPPANNA HOSAAKOTI,
OCC:HOUSEHOLD WORK,
R/O JAGADAL, JAMKHANDI TALUK-587301.
MINOR AND HENCE REPTD. BY MOTHER AND
NATURAL GUARDIAN SMT.NEELAVVA.
1E. KUMAR GURULINGAPPA,
S/O TIPPANNA HOSAAKOTI,
OCC:HOUSEHOLD WORK,
R/O JAGADAL, JAMKHANDI TALUK-587301.
MINOR AND HENCE REPTD. BY MOTHER AND
NATURAL GUARDIAN SMT.NEELAVVA.
2. SRI KADAPPA,
S/O MALLAPPA HOSKOTI,
AGED 41 YEARS, OCC: AGRIL,
R/O JAGADAL, JAMKHANDI TALUK-587301.
3. SRI NINGAPPA,
S/O MALLAPPA HOSKOTI,
AGED 38 YEARS, OCC:AGRIL,
R/O JAGADAL, JAMKHANDI TALUK-587301.
4. SMT. GURULINGAVVA,
W/O GANGAPPA ULLAGADDI,
AGED 50 YEARS,
OCC: HOUSEHOLD WORK,
R/O JAGADAL, JAMKHANDI TALUK-587301.
5. SMT. GANGAVVA,
W/O ISHWAR PARAPPANAVAR,
AGED 49 YEARS,
OCC:HOUSEHOLD WORK,
R/O JAGADAL, JAMKHANDI TALUK-587301.
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RFA No.1150/2007
6. SMT. DRAKSHAYANI,
W/O DUNDAPPA ULLAGADDI,
AGED 42 YEARS,
OCC:HOUSEHOLD WORK,
R/O JAGADAL, JAMKHANDI TALUK-587301.
...RESPONDENTS
(R-1A, 1B, 1D, 1E, R-2 TO R-6 ARE SERVED;
R-1C ABATED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGEMENT AND DECREE DATED 19.01.2007 PASSED IN
OS.NO.211/2003 ON THE FILE OF THE PRL.CIVIL JUDGE
(SR.DN.) JAMKHANDI, DECREEING THE SUIT FOR PARITITON
AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING.
JUDGMENT
Heard the learned counsel for the appellant. The
respondents though being served with notice, unrepresented.
2. In this appeal, the appellant, who is the plaintiff
before the Trial Court sought for the judgment and decree of
the partition claiming that one Mallappa is the propositus of the
family of the plaintiff and the defendants who died on
22.09.1997. The plaintiff and the defendants are Class-I heirs.
The suit schedule properties are the self-acquired properties of
Mallappa. The plaintiff and the defendants inherit 1/7th share in
the suit schedule properties. Inspite of demand made to
RFA No.1150/2007
partition the property, the defendants refused to give her
share. Hence, the suit was filed.
3. In pursuance of the suit summons, defendant Nos.2
and 3 filed their written statement and denied the contention of
the plaintiff. The suit schedule 'B' property is only imaginary.
The fixed deposits and LIC policy, if any, are not the joint
family properties. It is contended that the plaintiff is not a
member. It is contended that Mallappa was not the absolute
owner of the suit schedule properties nor the plaintiff got 1/7th
share in the suit schedule properties. The deceased Mallappa
during his lifetime partitioned the 'A' schedule ancestral
property to the defendants, which are cultivated by the
defendants. The deceased Mallappa had retained only
movables i.e., cattles worth of Rs.25,000/-, gold ornaments
and silver utensils worth of Rs.1,00,000/- and even some other
funds, which were later given to his daughters. The deceased
Mallappa had borrowed private loans for Rs.6 to 7 lakhs and his
sons are struggling to discharge the loans. Based on the
pleadings of the parties, the Trial Court framed the following
issues:
RFA No.1150/2007
1. Whether the plaintiff proves that, she is entitle
for 1/7th share and she is in joint possession and
enjoyment of the suit properties?
2. Whether the plaintiff further proves that, the
defendant Nos.1 to 3 from the family funds
have invested in LIC policies under Policy
Nos.632061861, 632602282 and 632602302 in
the name of Tippanna, Kadappa and Ningappa
respectively?
3. Whether the defendant Nos.2 and 3 prove that,
there was partition and separate possession in
respect of schedule properties, which are their
ancestral joint family properties?
4. Whether the plaintiff is entitle for the relief
sought for?
5. What order or decree?
4. The plaintiff in order to prove the case, examined
herself as P.W.1 and got marked the documents at Exs.P.1 to
6. On the other hand, the defendants examined D.W.1 and not
marked any documents. The Trial Court after considering the
material available on record came to the conclusion that the
plaintiff is entitled for 1/28th share in the suit 'A' schedule
properties, defendant Nos.4 to 6 gets 1/28th share each in the
RFA No.1150/2007
suit schedule properties and defendant Nos.2 and 3 gets 8/28th
share each and the legal heirs of defendant No.1 together gets
8/28th share answering point Nos.1, 2 and 4 as partly
affirmative. Hence, the present appeal is filed by the plaintiff.
5. The learned counsel for the appellant/plaintiff would
vehemently contend that the Trial Court has committed an
error in not noticing the glaring contradictions in the pleadings
and evidence adduced by the respondents and further grossly
erred in holding that the plaintiff had not pleaded or deposed
that the suit schedule properties are self-acquired properties of
Mallappa when there was ample evidence to show the same.
The learned counsel would contend that the Trial Court also
grossly erred in coming to the conclusion that she had not led
evidence to show that she was married after 1994 when the
Hindu Succession Act was amended. The Trial Court committed
an error in coming to the conclusion that the plaintiff is not
entitled to equal share along with her brothers and committed
an error in only granting 1/28th share instead of 1/7th share.
6. The learned counsel submits that in paragraph No.7
of the written statement of defendant Nos.2 and 3, they have
RFA No.1150/2007
categorically admitted that the suit schedule properties are
ancestral properties, but contended that Mallappa during his
lifetime had effected the partition and separate possession and
specific allegation is made that the properties were ancestral
joint family properties of the defendants and his respective
sons have been cultivating the lands as allotted separately,
irrespective of non-division in revenue records. The learned
counsel contend that inspite of the admission that the
properties were ancestral properties, in order to prove the
factum that already there was a partition, no material is placed
before the Trial Court in order to prove the fact that during the
lifetime of Mallappa, there was a partition and separate
possession and the admitted fact need not be proved.
7. The learned counsel submits that in the chief
evidence of P.W.1, P.W.1 reiterated that the property belongs
to the family and she is the daughter of the said Mallappa and
in the cross-examination of P.W.1, nothing is elicited.
Defendant No.2 is also examined wherein in the affidavit he has
stated that Mallappa was not the absolute and exclusive owner
of the suit schedule properties and also contended that during
his lifetime itself, he had effected the partition and separate
RFA No.1150/2007
possession. In the cross-examination, D.W.1 categorically
admitted that after the death of the father, the elder son
Thippanna was taking care of the suit schedule properties and
he cannot tell in which year the father had purchased the
property. He also admits that after the death of Thippanna, he
is cultivating the land and also admitted that in the year 1959,
his father and Ramappa Veerappa Korpade have purchased the
property. It is suggested that RS No.249/2 was purchased
from Gurappa Bheemappa Harapanalli for sale consideration of
Rs.2,000/- by Mallappa and the same was denied, but he
claims that the same is the ancestral property and also
admitted that during the lifetime of the father, there was no
any partition. The learned counsel submits that in view of the
said admission, it is clear that during the lifetime of the father,
there was no any partition. The Trial Court failed to consider
both oral and documentary evidence. The learned counsel
brought to the notice of this Court Ex.P.6, wherein properties
are mutated in favour of the elder son of the said Mallappa and
the plaintiff and other family members have given the vardhi in
terms of Ex.P.6 and based on the consent vardhi, the property
RFA No.1150/2007
was transferred in the name of the eldest son and the same is
not taken note of by the Trial Court.
8. Having heard the learned counsel for the appellant
and also on perusal of the material available on record, the
points that arise for the consideration of this Court are:
(i) Whether the Trial Court has committed an
error in answering issue No.1 as partly
affirmative in coming to the conclusion that
the plaintiff is entitled for 1/28th share instead
of 1/7th share?
(ii) What order?
Point No.(i):
9. Having heard the learned counsel for the appellant and on
perusal of the material available on record, the plaintiff in the
plaint has claimed that the suit schedule properties are the self-
acquired property of the propositus Mallappa and sought for an
order for partition and separate possession claiming 1/7th share
in respect of RS No.243/2A measuring 4 acres, RS No.249/1
measuring 3 acres 15 guntas and RS No.249/2 measuring 2
acres 7 guntas, which is morefully described in schedule 'A'. It
is also the claim of the plaintiff that Mallappa died on
22.09.1997 subsequent to the Karnataka amendment. The
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RFA No.1150/2007
plaintiff P.W.1 reiterated the same in her evidence and got
marked the documents at Exs.P.1 to 6. In the cross-
examination, it is elicited that RS No.253/A is purchased from
Chinchali and the same is purchased in the name of Mallappa
and not in any others name, but she has not seen the sale deed
and also admits that Ramappa Marathi also purchased the
same. No doubt, no sale deed is produced for having
purchased the property and in the cross-examination, not
denied the document of Ex.P.6. In the cross-examination of
D.W.1, who is defendant No.3 though he claims that there was
a partition during the lifetime of the father Mallappa,
categorically admitted that no such partition was taken place
and during the lifetime even they have not demanded the
father to give any share and hence the very defence taken in
the written statement has been falsified in view of the
admission of D.W.1 in the cross-examination. But he claims
that share was given to the plaintiff after the death of the
father, but no document is placed before the Court for having
given the share. It is also important to note that the document
of Ex.P.6 is produced before the Trial Court, wherein an entry is
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RFA No.1150/2007
made transferring the property in favour of the eldest male
member of the family with the consent of the plaintiff also.
10. On perusal of Ex.P.6, the khatha was transferred in
favour of the eldest son in respect of the suit schedule property
wherein the age and name of the plaintiff and defendants are
mentioned and the property is also transferred in the name of
eldest member of the family only on consent and this document
has not been considered by the trial Court. Merely because an
admission is made in the cross-examination of P.W.-1 that no
sale deed is produced but the trial Court failed to take note of
admitted document of Ex.P.6 wherein after the death of the
father, suit schedule property are transferred in the name of
the eldest male member of the family and apart from that DW-
1 has given clear admission that during the life time of the
father, no partition has taken place and also categorically
admitted that during the life time of the father they have not
demanded any partition but claims that they have given the
share in favour of the plaintiff after the death of the father.
When no such document is placed before the Court and an
admission is elicited from the mouth of P.W.-1, the trial Court
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RFA No.1150/2007
has committed an error in answering point No.1 partly in the
affirmative.
11. The very approach of the trial Court giving the share in
favour of the plaintiff to the extent of 1/128th share instead of
1/7th share is erroneous and it has lost sight of the admission
given by DW-1 and also the document Ex.P.6 wherein they
have given consent for transfer of suit schedule property in
favour of the eldest member of the family wherein also the
plaintiff is a party to the said wardi. Hence, the trial Court has
committed an error in answering issue No.3 as negative and
ought to have answered issue No.4 also as affirmative instead
of answering the same as partly affirmative. Accordingly, I
answer point No.1 as affirmative.
12. In view of the above discussions, I pass the following:
ORDER
i) The appeal is allowed with costs,
ii) The impugned judgment and decree dated
19.01.2007 passed by the Principal Civil Judge
(Sr.Dn.), Jamkhandi, in O.S.No.211/2003 is
modified,
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RFA No.1150/2007
iii) The plaintiff is granted 1/7th share in the suit
schedule property as claimed by her,
iv) Registry is directed to draw the decree accordingly.
(Sd/-)
JUDGE
MD/JM
