Yallappa Gurupadappa Hebballi vs Yellavva Kom Maritammappa ...
2022 Latest Caselaw 1544 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 02ND DAY OF FEBRUARY, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              R.S.A.NO.100242/2014 (PAR)

BETWEEN

1.    YALLAPPA
      S/O GURUPADAPPA HEBBALLI,
      AGE : 54 YEARS, OCC: AGRICULTURE,
      R/O HIRENARTI, TQ: KUNDGOL.

2.    HANAMANTAPPA
      S/O GURUPADAPPA HEBBALLI,
      AGE : 52 YEARS,
      OCC: AGRICULTURE,
      R/O HIRENARTI, TQ: KUNDGOL.
                                           ...APPELLANTS
(BY SRI RAJASHEKAR GUNJALLI, ADV.)

AND

1.    SMT.YELLAVVA
      KOM. MARITAMMAPPA NAGARALLI,
      AGE : 56 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O KUBIHAL, TALUKA : KUNDGOL.

2.    FAKIRAVVA
      KOM. KUSHAPPA HARAKUNI,
      AGE : 51 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O HIRENARTI,
      TALUKA : KUNDGOL.

3.    SMT.RENAVVA
      W/O SHIDDAPPA BOODI,
      AGE : 46 YEARS,
      OCC: HOUSEHOLD WORK,
                             2




     R/O CHAVADYAL,
     TALUKA : SHIRAHATTI,
     DISTRICT : GADAG.

4.   SMT.SHIVAKKA KOM. MALLAPPA KURUBAR,
     AGE : 42 YEARS,
     OCC: HOUSEHOLD WORK,
     R/O DUNDASHI,
     TALUKA: SHIGGAON.
     DISTRICT : HAVERI.

5.   SMT.CHANNAVVA KOM. TIPPANNA KURUBAR,
     AGE : 38 YEARS,
     OCC: HOUSEHOLD WORK,
     R/O GAMANAGATTI,
     TALUKA: SHIRAHATTI,
     DISTRICT: HUBLI.

6.   SMT.NINGAMMA
     W/O GURUPADAPPA HEBBALI,
     AGE : 71 YEARS,
     OCC: HOUSEHOLD WORK,
     R/O HIRENARTI, TALUKA : KUNDGOL.

7.   MALLAPPA
     S/O GURUPADAPPA HEBBALLI,
     AGE : 40 YEARS,
     OCC: AGRICULTURE,
     R/O HIRENARTHI, TALUKA: KUNDGOL.
                                        .... RESPONDENTS

(BY SRI MRUTYUNJAYA S.HALLIKERI, ADV. FOR R.1 TO R5 AND
R.7)

      THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 19.11.2013 PASSED
IN RA.NO.18/2009 ON THE FILE OF THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DHARWAD SITTING AT
HUBLI, CONFIRMING THE JUDGMENT AND DECREE DATED
20.11.2008 PASSED IN O.S.NO.240/2007 BY THE I ADDITIONAL
CIVIL JUDGE (SR.DN.), HUBLI IN THE INTEREST OF JUSTICE
AND EQUITY.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                              3




                     : JUDGMENT :

The captioned second appeal is filed by

defendant Nos.3 and 4 questioning the concurrent

judgments and decree of the Courts below in

decreeing the suit filed by respondent Nos.1 to 5-

plaintiffs granting 1/10th share to the plaintiffs.

2. Facts leading to the above said case are as

follows:

Respondent Nos.1 to 5-plaintiffs filed a suit for

partition and separate possession in O.S.No.240/2007

by specifically contending that they being the

daughters of one Gurupadappa are entitled for their

legitimate share in the suit schedule properties. The

contesting defendants are their brothers. The

respondents/plaintiffs specifically contending that the

suit schedule properties are the joint family ancestral

properties of plaintiffs and defendants and therefore

they claimed that they are entitle for 1/9th share in the

suit schedule properties.

3. The present appellants/defendants on

receipt of summons contested the proceedings and

stoutly denied the entire averments made in the

plaint. Suit was resisted on two grounds. One is that

the plaintiffs who are their sisters were given in

marriage. While solemnizing their marriage, the

defendants have incurred huge expenditure and this

expense was towards their legitimate share in the suit

schedule properties. The second ground to resist the

present suit is that there was already partition effected

in the year 1994 and entries were effected in terms of

the partition in the family and therefore the present

suit is not maintainable.

4. The Trial Court having assessed oral and

documentary evidence has come to conclusion that

present appellants having taken a specific contention

that during the life time of their father Gurupadappa

partition was effected among the sons and accordingly

a memorandum of partition came to be effected

reporting earlier partition in the family, have not

produced the said memorandum of partition. The Trial

Court has drawn an adverse inference for withholding

the said alleged memorandum of partition. The Trial

Court was also of the view that if memorandum of

partition was produced before the revenue authorities

along with the consent varadi given by plaintiffs, why

the same is not produced in the present suit is not

properly explained by the contesting defendants.

Therefore unless Ex.D.17, which is mutation extract, is

not supported by alleged memorandum of partition,

the Trial Court was of the view that the alleged theory

set up by present appellants/defendants that there

was already partition in the family cannot be believed

and accordingly the Trial Court has proceeded to

answer Issue Nos.1 and 2 in the affirmative by

recording a finding that the suit schedule properties

are the joint family ancestral properties and there is

no severance in the family. The Trial Court has also

negatived the contention of appellants/defendants that

there was a partition in the family.

5. The First Appellate Court on appreciation of

oral and documentary evidence independently, has

concurred with the findings of the Trial Court insofar

as nature of the suit schedule properties are

concerned. The First Appellate Court having assessed

oral and documentary evidence has also come to

conclusion that the theory of partition set up by the

present appellants is not proved during the trial.

However, modified the shares by granting 1/7th share

each to plaintiff Nos.3 to 5 and defendant Nos.3 to 5

plus (+) 1/9th share in 1/7th share of father i.e.,

defendant No.1. The modification of preliminary

decree is not challenged by respondents/plaintiffs.

6. Heard learned counsel appearing for the

appellants and learned counsel appearing for the

respondents. Perused the judgment under challenge.

7. On perusal of the materials on record and

also judgments, this Court would find that the present

appellants have taken a specific contention that the

appellants have incurred huge expenditure while

performing the marriages of their sisters i.e., the

plaintiffs and therefore they contend that the expenses

incurred was towards their legitimate shares in the

suit schedule properties. These bald averments made

in the written statement is not corroborated and

substantiated by producing cogent and clinching

rebuttal evidence. A contrary defence is also taken by

the present appellants by contending that during

lifetime of father, there was a partition in the family

and subsequently the said oral partition was reported

to the revenue authorities by producing memorandum

of partition along with consent letters executed by the

plaintiffs. Having taken such a contention, the

appellants have not produced any clinching rebuttal

evidence either indicating that expenses incurred was

towards the legitimate share of plaintiffs or that there

was a partition and the same was reduced in writing

by way of memorandum of partition. The

appellants/defendants have miserably failed to

substantiate their defence taken in the written

statement. Therefore, the judgment and decree of the

Courts below are in accordance with law. No

substantial question of law arises. The appeal is devoid

of merits. Accordingly the same stands dismissed.

SD/-

JUDGE EM