Shantavva W/O. Sangayya Hiremath vs Chandrashekharayya S/O. ...
2022 Latest Caselaw 2641 Kant

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          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

       DATED THIS THE 17TH DAY OF FEBRUARY, 2022

                        BEFORE

        THE HON'BLE MS. JUSTICE JYOTI MULIMANI

     REGULAR SECOND APPEAL NO.6255/2012 (PAR)

BETWEEN:

1.   SHANTAVVA
     SINCE DECEASED BY HER LRs.
     APPELLANT NO.2 AND RESPONDENT NO.1 TO 5
     (ALREADY ON RECORD).

2.   VIRUPAKSHAYYA
     S/O SANGAYYA HIREMATH,
     AGE:57 YEARS, OCC:AGRIL,
     R/O MADLI, POST:DUNDASI,
     TQ:SHIGGAON, DIST:HAVERI,
     PIN- 581 205.                     ... APPELLANTS

(BY SRI DINESH M. KULKARNI, ADVOCATE FOR A-2;
    VIDE ORDER DATED 26.10.2016 APPELLANT NO.2 AND
    RESPONDENT NO.1 TO 5 ARE TREATED AS
    LRs OF APPELLENT NO.1)

AND:

1.   CHANDRASHEKHARAYYA
     S/O SANGAYYA HIREMATH,
     AGE:61 YEARS, OCC:AGRICULTURE,
     R/O MADLI, POST:DUNDASI,
     TQ:SHIGGAON, DIST:HAVERI,
     PIN CODE - 581 205.
                          2




2.   SHIVANANDAYYA
     S/O SANGAYYA HIREMATH,
     AGE:52 YEARS, OCC:AGRICULTURE,
     R/O MADLI, POST:DUNDASI,
     TQ:SHIGGAON, DIST:HAVERI,
     PIN CODE - 582 209.

3.   SMT.DRAKSHAYANI
     W/O CHANDRASHEKHARAYYA HIREMATH,
     AGE:49 YEARS, OCC:HOUSEHOLD WORK,
     R/O MAHARAJPET, TQ:HANGAL,
     PIN CODE - 581 104.

     GADIGEVVA GURUPADAYYA MAJJANMATH
     SINCE DECEASED BY HER L.Rs.

4.   SHAMBHULINGAYYA
     S/O GURUPADAYYA MAJJANMATH,
     AGE:26 YEARS, OCC:STUDENT,
     R/O YALLUR, TQ:HANGAL,
     PIN CODE - 581 104.

5.   MADHU
     D/O GURUPADAYYA MAJJANMATH,
     AGE:23 YEARS, OCC:HOUSEHOLD,
     R/O YALLUR, TQ:HANGAL,
     PIN CODE - 581 104.     ... RESPONDENTS

(BY SRI P.V.MOGALI, ADVOCATE FOR C/R1;
    SRI PRASHANTH S. KADADEVAR, ADVOCATE FOR R2;
    R3 TO R5 ARE SERVED)

    THIS RSA IS FILED UNDER SECTION 100 OF CIVIL
PROCEDURE CODE, 1908.

     THIS RSA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THROUGH VIDEO CONFERENCING THIS DAY,
SITTING AT BENGALURU, THIS COURT DELIVERED THE
FOLLOWING:
                                  3




                           JUDGMENT

Sri.Dinesh M.Kulkarni, learned counsel for

appellant-2 and Sri.Prashant S.Kadadevar learned counsel

for respondent No.2 have appeared through video

conferencing.

2. This appeal is from the Court of District Judge,

Haveri.

3. For the sake of convenience, the parties are

referred to as per their rankings before the trial Court.

4. The facts are stated as under:-

It is the case of the plaintiffs one Sangayya Hiremath is

the propositus. He had a wife and 5 children. The plaintiff

No.1 is the wife and plaintiff No.2 and defendants 1 to 4 are

children of Sangayya Hiremath. The suit properties belonged

to propositus Sangayya Hiremath. They are joint family

properties and plaintiffs and defendants are in joint

possession and enjoyment of the suit properties. There is no

partition and defendant No.1 is looking after the properties

as karta. Contending that they are entitled for a 7/30th share

in the suit properties, plaintiffs brought action against the

defendants for partition and separate possession.

In pursuance of suit summons, defendants 1 to 4

entered appearance. Defendants 2 & 3 remained ex parte.

Defendant No.1 filed written statement inter alia contended

that there is a partition in the family during 1995 and in the

said partition, the properties were allotted as under:-

1. R.S.No.66/1 was allotted to defendant No.1.

2. R.S.No.66/2 was allotted to defendant No.2 .

3. R.S.No.66/3 was allotted to plaintiff No.2

4. R.S.No.69 was allotted to Sangayya Hiremath and

his wife Smt.Shantavva - plaintiff No.1.

It is also contended that plaintiff No.2 and defendants

1 and 2 are in possession of the properties allotted to their

respective shares. Likewise, VPC No.51 comprising house and

backyard was allotted to the share of plaintiffs 1 and 2, the

defendant No.2 and propositus Sangayya Hiremath.

Accordingly, mutation entry in M.E.No.1726 was also

effected. The propositus Sangayya Hiremath died on

17.01.1996. After his death, during the year 1997-98,

R.S.No.69 & R.S.No.9/6B/2 which were allotted to plaintiff

No.1 and Sangayya Hiremath were partitioned between

plaintiff No.2 and defendants 1 and 2. As per the said

partition, eastern portion of R.S.No.69, measuring to an

extent of 4 Acres 9 Guntas along with well and 38 mango

trees was allotted to the share of defendant No.1. Remaining

portion on northern side measuring to an extent of 2 Acres

38 Guntas was allotted to the share of defendant No.2 and

southern side portion measuring 2 acres 38 guntas was

alloted to the share of plaintiff No.2. Open space adjoining

VPC No.52 along with 100 tractor load of stones was allotted

to the share of the second defendant. Accordingly, they are

in possession of their respective shares. It is also contended

that defendants 3 and 4 refused to take their share as they

were given sufficient silver and gold ornaments at the time of

marriage. Among other grounds, they prayed for the

dismissal of the suit.

Based on the above pleadings, the trial Court has

framed the following issues.

1. Whether plaintiffs prove that, suit properties are joint family properties of plaintiffs and defendants?

2. Whether plaintiffs further prove that they are entitle for 7/30th share in suit properties?

3. Whether deft.No.1 proves that there was partition between plaintiffs, defendants and Sangayya during 1995 and that there was partition between plaintiffs, defendants during 1997-98 and that, they are in possession and vahiwat of their respective properties since then?

4. Whether plaintiffs are entitled for relief of partition as prayed

5. Whether plaintiffs are entitled for relief of separate possession as prayed?

6. Whether plaintiffs are entitled for mesne profits as prayed?

7. What order or decree?

In order to prove the case, plaintiff-2 was examined

himself as PW-1 and produced fourteen documents which

were marked as Exs.P-1 to P-14. In support of the

defendant's case, defendant No.1 was examined as DW-1

and one - Shivappa S/o.Yallappa Yallakkanavar was

examined as DW-2. Nine documents were produced and

marked as Exs.D1 to D9.

On the trial of the action, the trial Court dismissed the

suit. On appeal, the First Appellate Court confirmed the

judgment and decree of the trial Court. Hence, this Regular

Second Appeal is filed under Section 100 of CPC.

5. Sri.Dinesh Kulkarni, learned counsel for appellant

No.2 submits that the judgment and decree of both the

Courts are contrary to the oral and documentary evidence on

record.

Next, he submitted that the properties are ancestral

joint family properties and in the absence of any registered

partition deed or Court order, it is presumed that the family

is joint and the burden is on the defendants to prove earlier

partition. It is submitted that no registered partition deed or

Court decree is placed before the Court to accept the theory

of earlier partition. Mere stray entry in record of rights is not

proof of partition.

A further submission was made that both the Courts

have failed to notice that as on the date of suit the lands

bearing R.S.No.69 and 9/6B/2 were still standing in the joint

name and VPC Nos.51 and 52 were also standing in the

name of father Sangayya Hiremath. This aspect is not

properly considered by the Courts.

Learned counsel vehemently contended that the Courts

have erred to notice that no share was allotted to mother in

the alleged partition. It is also submitted that the Courts

have wrongly concluded that plaintiff No.1 has not entered

the witness box and sisters have not claimed their share

hence, they are not entitled for share. The finding is contrary

to Sections 6 and 8 of the Hindu Succession Act, 1956.

Lastly, he submitted that viewed from any angle, the

judgment and decree of both the Courts lacks judicial

reasoning. Accordingly, he submitted that the second appeal

may be allowed.

6. Sri.Prashanth S.Kadadevar, counsel for

respondent No.2 justified the judgment and decree of both

the Courts.

Learned counsel vehemently submitted that both the

Courts in extenso referred to the material on record and

concluded that plaintiffs are not entitled for partition and

separate possession. Hence, submitted that the second

appeal may be dismissed.

7. Heard the contentions urged on behalf of parties

and perused the records with care.

The facts have been sufficiently stated.

For the sake of convenience, the genealogy is referred

to as under:

Sangayya (Dead on 17-01-1996)

= Shantavva (Plff No.1)

Chandra Virupaxayya Shivandayya Drakshayani Gadigevva shekarayya (Plff-2) (Deft-2 (Deft-3) (Deft-4) (Def.No.1 (Dead)

Shambulingayya Madhu (Respt.No.4a) (Respt.No.4b)

The plaintiffs filed suit contending that the suit

schedule properties are joint family properties. There is no

partition in the family and they are entitled for partition and

separate possession. The defendant No.1 specifically

contended that there is a partition in the family and hence,

plaintiffs are not entitled for partition and separate

possession.

The details of the properties as detailed in the plaint is

reiterated as under:

zÁªÁ D¹ÛUÀ¼À ªÀtð£É ±ÉqÀÆå¯ï - '§'

1) ²UÁÎAªÀ vÁ®ÆPÀ ±ÁåqÀA© UÁæªÄÀ zÀ d«ÄãÀÄUÀ¼À «ªÀgÀ B-

C£ÀÄ. j.¸À.£ÀA PÉëÃvÀæ vÀgÀA D. QªÀÄävÀÄÛ £ÀA. J - UÀÄA gÀÆ - ¥ÉÊ

1) 66/1 5 - 14 5 - 30 1.5 ®PÀë

2) 69 10 - 05 43 - 44 4 ®PÀë

3) 66/2 5 - 00 4 - 95 1.5 ®PÀë

4) 66/3 5 - 00 4 - 95 1.5 ®PÀë

2) ²UÁÎAªÀ vÁ®ÆPÀ ªÀÄrè UÁæªÄÀ zÀ d«ÄãÀÄ B-

C£ÀÄ. j.¸À.£ÀA PÉëÃvÀæ vÀgÀA D. QªÀÄävÀÄÛ £ÀA. J - UÀÄA gÀÆ - ¥ÉÊ

1) 9/6§/2 4 - 16 2 - 48 60 ¸Á«gÀ

3) ²UÁÎAªÀ vÁ®ÆPÀ ªÀÄrè UÁæªÄÀ zÀ ªÀÄ£É ªÀ »vÀÛ®ÄUÀ¼À «ªÀgÀ B-

       «.¦.¹. £ÀA.                   C.QªÀÄävÀÄÛ

1)               51                  20 - ¸Á«gÀ
2)               52                  20 - ¸Á«gÀ

F ¥ÀæPÁgÀ EgÀÄvÀÛzÉ.

To prove the contention, Virupakshayya Sangayya

Hiremath, plaintiff No.2 was examined as PW-1. He has

stated that his father Sangayya Hiremath died on

17.01.1996. After the death of the father,

Chandrashekharayya Sangayya Hiremath being the eldest

Son of Sangayya Hiremath is managing the affairs of the

joint family. He has deposed that the suit properties are

joint family properties and there is no partition at any point

of time.

In the cross examination, he has denied the suggestion

regarding earlier partition.

Chandrashekharayya Hiremath - the first defendant

was examined as DW-1. He has deposed that there is a

partition in the family in the year 1995 and there are no

documents to evidence the same. He has further deposed

that in the partition, the mother was not allotted any share.

According to defendant No.1, there is a partition in the

family and mutation was affected in M.E.No.1726 and

properties are divided as under:-

1. R.S.No.66/1 was allotted to defendant No.1.

2. R.S.No.66/2 was allotted to defendant No.2 .

3. R.S.No.66/3 was allotted to plaintiff No.2

4. R.S.No.69 was allotted to Sangayya Hiremath.

It is not in dispute that Sangayya the propositus died

17.01.1996. Ex.P-3 is the varadi dated 22.03.1995. I have

perused the same with care. It reads as under:-

ªÁnß ªÀgÀ¢ 66 CªÀ¢ DV®è vÁjRÄ 22-3-1995 ¨ÁdÆPÉÌ §gÉzÀ d«Ä¤£À 1726 PÀ§eÉzÁgÀ ²æà ¸ÀAUÀAiÀÄå zÀ. ¯Á¢ ¹zÀÝAiÀÄå »ÃgɪÀÄoÀ 69 Sd/-

UÁ//ªÀÄrè EªÀgÀ ªÀÄPÀ̼ÁzÀ «gÀÄ¥ÁPÀëAiÀÄå 2) 8/4/95 ²ªÁ£ÀAzÀ ¸Áé«Ä 3) ZÀAzÀæ±ÉÃRgÀAiÀÄå EªÀgÀÄ vÀAzÉ JgÀqÀÄ ªÀÄPÀ̼À°è PÀÆr £ÁvÉAiÀÄzÀÝjAzÁ ¥ÀAZÀgÀ ¸ÀªÀÄPÀëªÀÄ ªÁlß ªÀiÁrPÉÆAqÀ «ªÀgÀ F PɼÀV£ÀAvÉ EzÉ ªÀgÀ¢ ªÀ D¥Àìvï ªÁmÁß C £ÀA j¸À£ÀA PÉëÃvÀæ ¢PÀÄÌ PÀ§eÉUÉ §AzÀªÀgÀÄ ¥ÀvÀæ £ÉÆÃr ªÀiÁrzÀPÉÌ 30

1) 66/¥ÉÊQ 5-00 ¥ÀƪÀðPÉÌ - «gÀÄ¥ÀPÀëAiÀÄå gÀÆ ªÀ¸ÀÆ®Ä ¸ÀAUÀAiÀÄå »ÃgɪÀÄoÀ ªÀiÁqÀ¨ÉÃPÀÄ ºÁUÀÆ

2) 66/¥ÉÊ 5-00 ªÀÄzsÀå ²ªÁ£ÀAzÀ ¸Áé«Ä ¸ÀAUÀAiÀÄå »ÃgɪÀÄoÀ £ÉÆÃn¸ï eÁj vÀPÀgÁgÀÄ

§A¢®è JAzÉæ

3) 66/¥ÉÊ 5-14 ¥À²ÑªÀÄPÉÌ - ZÀAzÀæ±ÉÃRgÀAiÀÄå ªÀÄAdÆgÀ.

¸ÀAUÀAiÀÄå »ÃgɪÀÄoÀ Sd/-

4) 69 10=05 ¥ÀÆwð ¸ÀAUÀAiÀÄå zÀ.vÀA¢ 29/4/95.

²zÀåAiÀÄå »ÃgɪÀÄoÀ

F ¥ÀæPÁgÀ »¸Éì ªÀiÁr PÉÆAqÀÄ PÀ§eÁ, ªÀ»ªÁl ¥ÀæPÁgÀ zÁR°¸À®Ä ¥ÀAZÀgÀ ¸ÀªÀÄPÀëªÀÄ ªÀiÁrzÀ ªÁlß ¥ÀvÀæ ®UÀÛ ªÀgÀ¢ ¥ÀæPÁgÀ zÁR®Ä

The contents of Ex.P-3 show that there is partition on

22.03.1995 and the varadi is given. It is noticed that

thereafter, the names are entered in the record of rights with

respect of each survey numbers. It is noticed that after

giving the varadi, the names of parties have been entered in

the revenue records with respect of each of the properties.

Ex.P-11 is the RTC extract in respect of property

bearing R.S.No.66/1. The name of Hiremath

Chandrashekharayya Sangayya is shown as the owner and

possessor of the land.

Ex.P-13 is the RTC extract in respect of R.S.No.66/2.

The name of Hiremath Shivanandayya Sangayya is shown as

the owner and possessor of the land.

Ex.P-14 is the RTC extract in respect of R.S.No.66/3.

The name of Hiremath Virupakshayya Sangayya is shown as

the owner and possessor of the land.

Though PW-1 denies the suggestion regarding partition

but the documents viz., exhibits 'P' series depicts that there

is already a partition in respect of properties and that they

were enjoying their respective shares.

It is significant to note that both the Courts have

concurrently held that there is partition and the names were

accordingly entered in the revenue records and the parties

were enjoying their respective shares. Therefore, I find no

ground to interfere with concurrent finding of fact recorded

by both the Courts below to under Section 100 of CPC with

regard partition in respect of properties bearing No 66/1.66/2

and 66/3.

While addressing argument, learned counsel for

appellant No.2 - Sri. Dinesh Kulkarni strenuously urged that

in respect of properties bearing Sy.No.69, VPC Nos.51 and 52

and R.S.No.9 Hissa 6B/2 are standing in the name of

Sangayya Hiremath. He died intestate. Hence, plaintiffs and

defendants are equally entitled for a share in the said

properties.

Learned counsel has drawn the attention of the Court

to the relevant exhibits with regard to Sy.No.69,

VPC Nos.51 and 52 and also in respect of property bearing

R.S.No.9. Hissa 6B/2.

I have considered the said submission with care and

also perused the relevant exhibits.

Ex.P-12 is the RTC extract in respect of property

bearing R.S.No.69. The names of Hiremath

Chandrashekharayya, Virupakshayya and Shivanandaswamy

is shown as the owner and possessor as varasa. It is

relevant to note that this property was allotted to Sangayya

and after his death the names of his sons is entered in the

revenue record.

Exs.P-8 and P-9 are the documents pertaining to VPC

Nos.51 and 52. The name of Sangayya is shown as the

owner.

Ex.P-10 is the RTC extract in respect of property

bearing R.S.No.9. Hissa 6B/2. The names of Hiremath

Chandrashekharayya, Virupakshayya and Shivanandaswamy

is shown as the owner and possessor of the land as varasa.

The property was owned by Sangayya and after his death the

names of his sons is entered in the revenue record.

It is to be noted that though defendant No.1 in the

written statement has specifically contended that VPC No.51

was allotted to the share of plaintiff Nos.1 and 2 and

R.S.No.69 is divided and VPC No.52 was allotted to the share

of defendant No.2, but there is nothing on record to evidence

the said contention. Hence, the contention must necessarily

fail.

A perusal of the said exhibits Exs.P8, P9 and P10

would in fact disclose that Sy.No.69, VPC Nos.51 and 52 and

property bearing R.S.No.9. Hissa 6B/2 belonged to

Sangayya. His name is entered in the respective records. He

died intestate. Hence, his wife and three sons are equally

entitled for one share each in the said properties.

However, both the Courts below rejected the partition

and separate possession in its entirety. In my considered

view, the Courts are not justified in doing so for the simple

reason that the properties Sy.No.69, VPC Nos.51 and 52 and

R.S.No.9. Hissa 6B/2 belonged to Sangayya.

During the course of arguments, learned counsel

appearing for respective parties submits that the daughters

i.e., defendants 3 and 4 have refused to take their share as

they were given sufficient silver and gold ornaments at the

time of marriage. Therefore, they submit that they are not

claiming any share in the properties.

Submission is noted.

As already noted above, the propositus Sangayya died

intestate and his wife and three sons are entitled for 1/4th

share in properties bearing Sy.No.69 situated at Shiggaon

Taluk, Dhundshi Hobli, Shayadambi Village, VPC

Nos.51 and 52 situated at Madli Village and property

R.S.No.9. Hissa 6B/2 situated at Shiggaon Taluk, Dhundshi

Hobli, Madli Village.

The substantial question of law is answered

accordingly.

8. In the result, the second appeal is allowed-in-

part. The judgment and decree dated 04.12.2008 passed by

the Court of the Additional Civil Judge (Sr.Dn.), Haveri in

O.S.No.8/2004 and the judgment and decree dated

07.09.2012 passed by the Court of District Judge at Haveri in

R.A.No.21/2009 are set aside.

The Registry concerned is directed to draw the decree

accordingly.

Sd/-

JUDGE

VMB