Karnataka High Court
Gurusiddayya @ Gurushiddappa vs Tirakavva W/O Prabhayya Hiremath on 2 February, 2022
Bench: Sachin Shankar Magadum
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.101015 OF 2015(PAR)
BETWEEN:
GURUSIDDAYYA @ GURUSHIDDAPPA
S/O VEERABHADRAYYA CHOWKIMATH,
AGED ABOUT 66 YEARS, OCC PRIESTLY SERVICE,
R/O VEERAPUR ONI,
NEAR MAHABALESHWAR TEMPLE,
HUBBALLI-580001.
...APPELLANT
(BY SRI.MALLIKARJUNSWAMY B.HIREMATH, ADV.)
AND:
1. SMT.TIRAKAVVA
W/O PRABHAYYA HIREMATH
AGED ABOUT 73 YEARS,
OCC HOUSEHOLD WORK, R/O VEERAPUR ONI,
NEAR MAHABALESHWAR TEMPLE, HUBBALLI,
PRESENTLY RESIDING AT SHETTAR CHAWL,
HOOGAR ONI, HUBBALLI-580001.
2. NEELAVVA W/O SHADAKSHARAYYA
NARAGUNDMATH,
AGED ABOUT 66 YEARS,
OCC HOUSEHOLD WORK,
R/O KATAGERI ONI, LAKKUNDI,
TALUK & DIST GADAG-580001.
2
3. SMT.IRRAVVA
W/O TIPPAYYA NARAGUNDMATH,
AGED 86 YEARS, OCC HOUSEHOLD WORK,
R/O MASARI, GADAG
TALUK & DIST GADAG-580001
4. SMT. NEELAVVA
W/O GANAYYA NAVALLIMATH
SINCE DECEASED BY HER LRs
4A. SMT.SHARDA
W/O GURUSIDDAYYA ANDANIMATH
AGED 79 YEARS, OCC HOUSEHOLD WORK,
R/O GHANTI CHAWAL,
GHANTIKERI ONI, HUBBALLI-580001.
4B. JAGADISH S/O BASAYYA NAVALLIMATH,
SON OF PREDECEASED SON
AGED 44 YEARS, OCC SERVICE
R/O AT GHANTKERI ONI,
(NEAR HOUSE OF GAVADE)
HUBBALLI-580001.
4C. IRANNA S/O BASAYYA NAVALLIMATH
SON OF PREDECEASED SON
AGED 35 YEARS, OCC SERVICE
R/O AT GHANTKERI ONI,
(NEAR HOUSE OF GAVADE)
HUBBALLI-580001.
4D. AJJAYYA @ SANGAYYA
S/O GANGAYYA NAVALLIMATH,
AGED 71 YEARS, OCC RETIRED SERVANT,
R/O AT GHANTKERI ONI,
(NEAR HOUSE OF GAVADE)
HUBBALLI-580001.
4E. CHANNAYYA GANGAYYA NAVALLIMATH,
AGED 78 YEARS, OCC SERVICE,
3
R/O AT GHANTKERI ONI,
(NEAR HOUSE OF GAVADE)
HUBBALLI-580001.
SINCE DEAD BY LRs
4E(a) CHANNAVVA W/O CHANNAYYA NAVALLIMATH
AGED 56 YEARS, OCC HOUSEHOLD WORK,
R/O BYADGERI LANE CIRCLE,
GHANTIKERI, HUBBALLI-580001.
4E(b) GANGADHAR S/O CHANNAYYA NAVALLIMATH
AGED 34 YEARS, OCC BUSINESS,
R/O BYADGERI LANE CIRCLE,
GHANTIKERI, HUBBALLI-580001.
4E(c) MANGALA W/O KUMAR HIREMATH
AGED 36 YEARS, OCC HOUSEHOLD WORK,
R/O BYADGERI LANE CIRCLE,
GHANTIKERI, HUBBALLI-580001.
4E(d) PRATIBHA W/O KUMAR KOTIGOUDAR
AGED 32 YEARS, OCC HOUSEHOLD WORK,
R/O BYADGERI LANE CIRCLE,
GHANTIKERI, HUBBALLI-580001.
4E(e) GIRIJA W/O KALLAYANA CHOWKIMATH,
AGED 40 YEARS, OCC HOUSEHOLD WORK,
R/O VEERAPUR ONI,
NEAR MAHABALESHWAR TEMPLE,
HUBBALLI-580001.
4F. KUMAR S/O GANGAYYA NAVALLIMATH,
AGED 48 YEARS, OCC SERVICE,
R/O AT GHANTKERI ONI,
(NEAR HOUSE OF GAVADE)
HUBBALLI-580001.
4G. IRAVVA ALIAS DAKSHAYANI
W/O MALLIKARJUNAYYA KULKARNI
ALIAS VIRAKTMATH,
4
AGED ABOUT 51 YEARS,
OCC HOUSEHOLD WORK,
R/O AT ANAND NAGAR ROAD,
SHREENIVAS NAGAR, H.NO.34,
HUBBALLI-580001.
4H. SMT. KAVERI W/O ALLAMAPRABHUSWAMI
BIDANURMATH,
AGE NOT KNOWN
R/O GHANTIKERI ONI,
C/O JAGADISH BASAYYA NAVALLIMATH,
GHANTIKERI ONI, HUBBALLI-580001.
4I. SMT. JYOTI W/O SIVALINGAYYA
HIREMATH,
AGE NOT KNOWN, OCC HOUSEHOLD WORK.
R/O GOKUL ROAD, LAXMINAGAR,
HUBBALLI-580001.
4J. SMT.LALITA W/O RUDRAYYASWAMI
HIREMATH,
AGE NOT KNOWN, OCC HOUSEHOLD WORK,
R/O GOKUL ROAD, GHANDINAGAR,
HUBBALLI-580001.
...RESPONDENTS
(BY SRI.J.S.SHETTY, ADV. FOR R1,
R2 TO R3 SERVED REMAIN UNREPRESENTED;
R4A TO R4J DISPENSED WITH)
THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL
PROCEDURE PRAYING TO SETASIDE THE JUDGMENT AND DECREE
DATED 20.08.2015 PASSED BY THE I ADDITIONAL DISTRICT &
SESSIONS JUDGE, DHARWAD, SITTING AT HUBBLI IN
R.A.NO.337/2009 AND ETC.,
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
5
JUDGMENT
The captioned second appeal is filed by the defendant
No.1 questioning the judgment and decree of the Courts below
in granting share to the respondent No.1/plaintiff in the suit
schedule property excluding property bearing CTS Nos.2510,
2511 and 2512/1B.
2. The facts leading to the case are as under:
The respondent No.1/plaintiff filed a suit for partition and
separate possession in O.S.No.324/2003. The respondent
No.1/plaintiff specifically contended that the suit schedule
property is a joint family ancestral property of appellants and
respondents and that respondent No.1/plaintiff is in joint
possession along with the appellant/defendant No.1 and
hence, prayed for allotment of his legitimate share in the suit
schedule property.
3. The present appellant/defendant No.1 contested
the proceedings and stoutly denied the entire averments made
in the plaint. The present appellant/defendant No.1
specifically contended that item No.1 is utilized for
construction of road by Municipality and therefore, the same is
not available for partition. The appellant/defendant No.1 also
contended that CTS No.2512/1B is being utilized as a road and
the same is also not partible.
4. The Trial Court having assessed the oral and
documentary evidence negatived the contention raised by the
present appellant/defendant No.1 insofar as property bearing
CTS Nos.2510, 2511 and 2512/1B is concerned and the Trial
Court was of the view that the question as to whether these
properties are partible cannot be examined in a partition suit.
In a partition suit, the Trial Court having regard to the
relationship of the parties and also having regard to the nature
of the suit schedule properties is required to ascertain as to
whether suit schedule properties are joint family ancestral
properties and if so, has to proceed to quantify the shares and
therefore, question as to whether some of the properties are
partiable or not is beyond the scope of enquiry in a preliminary
decree proceedings. On these set of reasonings, the Trial
Court has decreed the suit in respect of all suit schedule
properties.
5. The present appellant/defendant No.1 feeling
aggrieved by the judgment and decree of the Trial Court
preferred an appeal before the Appellate Court. The Appellate
Court, however, having independently assessed the oral and
documentary evidence on record has taken judicial note of the
categorical admissions given by the respondent No.1/plaintiff
in cross-examination wherein he has admitted in unequivocal
terms that in item No.1, there are water pipes and electrical
poles fixed by the municipality. She has also admitted that in
item No.2, there are tombs of the ancestors. She has further
categorically admitted that these properties are to be kept
joint and the same cannot be partitioned. It is in this
background, the Appellate Court having taken note of this
categorical admissions which go to the root of the case has
proceeded to allow the appeal filed by the present appellant
herein and suit is dismissed insofar as properties bearing CTS
Nos.2510, 2511 and 2512/1B by holding that they are not
partible and therefore, they are to be kept joint between the
plaintiff and defendants. Insofar as granting share in respect
of other properties are concerned, the Appellate Court has
proceeded to confirm the judgment and decree of the Trial
Court.
6. Though the present appellant/defendant No.1 has
partially succeeded before the First Appellate Court, however,
has filed the present second appeal by alleging that the
respondent No.1/plaintiff being the daughter of
Veerabhadraiah is not entitled for equal share as succession
had opened much prior to amendment to Section 6 of the
Hindu Succession Act. However, on perusal of the judgment
passed by the First Appellate Court as well as the Trial Court,
this Court would find that both the Courts have in fact
proceeded to hold that the amended provisions of Section 6
are not applicable and therefore, this Court would find that the
respondent/plaintiff is allotted a share notionally in the 1/3rd
share of her father Veerabhadraiah. In fact, there is no
challenge by the respondent No.1/plaintiff questioning the
quantification.
7. Though the judgment and decree of the Courts
below are contrary to the dictum laid down by the Hon'ble
Apex Court in the case of Vineeta Sharma Vs. Rakesh
Sharma and others1 however, since there is no challenge to
the quantification done by the Courts below which is contrary
to the judgment cited supra, I do not find any ground to
interfere with the judgment and decree passed by the Courts
below. In fact both the Courts have not extended the benefit
of amended provisions of Section 6 of the Hindu Succession
Act. Both the Courts have awarded share to the respondent
No.1/plaintiff notionally and not by extending deemed legal
fiction of a co-parcener and has not granted equal share at par
with the present appellant/defendant No.1 though daughters
ILR 2020 KAR 4370
are entitled for equal share in a joint family ancestral
property.
8. Therefore, no substantial questions of law would
arise for consideration in the present appeal. Accordingly, the
appeal stands dismissed.
SD/-
JUDGE
CA
