Sri Mahalingappa S/O. Bhimappa ... vs Sri Mallappa W/O. Bhimappa ...
2022 Latest Caselaw 1105 Kant

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             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

         DATED THIS THE 25TH DAY OF JANUARY, 2022

                         BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                R.S.A.NO.100038 OF 2022

BETWEEN:

SRI.MAHALINGAPPA S/O BHIMAPPA SANNATTI,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O FARM HOUSE, BELAGALI, TQ: MUDHOL,
DIST: BAGALKOT.
                                              ...APPELLANT
(BY SRI.PAVAN B.DODDATTI, ADV.)

AND:

1. SRI. MALLAPPA S/O BHIMAPPA SANNATTI,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O. FARM HOUSE, BELAGALI, TQ: MUDHOL,
DIST: BAGALKOT.

2. SMT. PARVATEWWA W/O BHIMAPPA SANNATTI,
AGE: 85 YEARS, OCC: HOUSEHOLD WORK,
R/O. FARM HOUSE, BELAGALI, TQ: MUDHOL,
DIST: BAGALKOT.

3. SMT. SHIVANAWWA W/O MUTTAPPA YADAHALLI,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O. FARM HOUSE, BEHIND KPTCL,
BELAGALI, TQ: MUDHOL, DIST: BAGALKOT.

4. FAKIRAPPA S/O BHIMAPPA SANNATTI,
AGE: 43 YEARS, OCC: AGRICULTURE,
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R/O. FARM HOUSE, BELAGALI, TQ: MUDHOL,
DIST: BAGALKOT.

5. SMT. BOURAWWA W/O BALAPPA JONI,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O. DURADUNDI, TQ: GOKAK,
DIST: BELAGAVI.

6. KUMARI KALPANA D/O SADASHIV SANNATTI,
AGE: 18 YEARS, OCC: STUDENT,
R/O. FARM HOUSE, BEHIND KPTCL,
BELAGALI, TQ: MUDHOL, DIST: BAGALKOT.

7. SMT. LAKKAWWA W/O RUDRAPPA HIPPARAGI,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O. FARM HOUSE, BELAGALI, TQ: MUDHOL,
DIST: BAGALKOT.

8. SMT. MAHADEVI W/O RAMESH HANJI,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O. MANTUR, TQ: RAIBAG,
DIST: BELAGAVI.

9. SMT. BANDAWWA W/O MAHALINGAPPA SANNATTI,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O. MANTUR, TQ: RAIBAG,
DIST: BELAGAVI.
                                        ...RESPONDENTS

     THIS RSA IS FILED UNDER SECTION 100 OF THE CODE OF
CIVIL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE DATED 10.11.2021 PASSED BY THE COURT OF I-ADDL.
DISTICT & SESSIONS JUDGE, BAGALKOT TO SIT AT JAMKHANDI IN
R.A.52/2019 AND ALSO THE JUDGMENT AND DECREE OF THE
TRIAL COURT DTD: 25.01.2019 IN OS.NO.100/2016 PASSED BY
THE COURT OF ADDL. SENIOR CIVIL JUDGE & JMFC, MUDHOL BY
DISMISSING THE SUIT AS WELL AS THE REGULAR APPEAL, BY
ALLOWING THIS APPEAL, IN THE INTEREST OF JUSTICE & EQUITY
AND ETC.,
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                           JUDGMENT

The captioned regular second appeal is filed by

appellant-defendant No.3 questioning the concurrent

judgments and decrees passed by the Courts below granting

10/45th share to the plaintiff.

2. For the sake of convenience, the parties are

referred to as per their rank before the trial Court.

3. The brief of the facts of the case are as under:

The first respondent who is the plaintiff filed a suit for

partition and separate possession by specifically contending

that he is the member of Hindu undivided family and all the

suit schedule properties are joint family ancestral properties.

Respondent No.1 further contended that he is in joint

possession and enjoyment over the suit schedule properties

and there is no severance in the joint family. Under

M.E.No.12472, which was certified on 6.6.1997 the names of

plaintiff and defendants were mutated in respect of the suit

schedule properties. It was further contended that defendant

no.1 is his mother, defendants 3,4 and 6 are his brothers and

defendants 2, 5, 7 and 8 are sisters of the plaintiff and

defendants 3,4 and 6. On these set of pleadings, the plaintiff

claimed that he is entitled for his legitimate share in the suit

schedule properties.

On receipt of summons, defendants 1, 3 and 4 and 6 to

9 filed written statement. The said defendants admitted that

originally the suit schedule properties were owned by the

propositus Bhimappa Fakirappa Sannatti. The defendants 1, 3

and 4 specifically contended that during the life-time of their

father, the marriage of defendants 2, 5, 7 and 8 were

performed and huge amounts were spent and as such the

daughters were given their respective shares at the time of

their marriage. The defendants 1, 3 and 4 also contended

that their sisters have executed consent deed and as such only

the names of plaintiff and defendants 3,4 and 6 were mutated

in the revenue records.

The defendants 2 and 5 who are the sisters of the

plaintiff filed written statements admitting the entire case of

the plaintiff and prayed to allot their legitimate share in the

suit schedule properties.

The trial Court having assessed the oral and

documentary evidence answered Issue Nos.1 and 2 in the

affirmative holding that the plaintiff has succeeded in proving

that the suit schedule properties are the joint family ancestral

properties. Having assessed the oral and documentary

evidence, the trial Court has negatived the contention of the

present appellant and other defendants that there was a

partition in the year 2004. The trial Court was of the view that

though plea of prior partition and separate possession is set

up, the defendants have not produced any cogent and

clinching evidence by way of registered documents to indicate

that there was partition in the year 2004. On these set of

reasoning, the trial Court has proceeded to decree the suit.

The first appellate Court having independently assessed

the oral and documentary evidence on record has also

concurred with the findings of the trial Court and has also

come to the conclusion that in the alleged partition effected in

the year 2004, the daughters were not allotted any share in

the suit schedule properties. The first appellate Court was

also of the view that the defendants having set up the plea

that the sisters have executed the consent deed, the burden

was on the defendants to prove by producing clinching

evidence to show that sisters have relinquished their share in

the suit schedule properties by executing the consent deed.

The first appellate Court on re-appreciation of the oral and

documentary evidence found that no such documents are

produced by the defendants to substantiate their claim. Both

the Courts below have proceeded to grant share on the ground

that in the alleged partition, as set up by the defendants, no

share is allotted to the sisters and therefore, the alleged

partition would not bind the sisters' share. The first appellate

Court by applying the principles laid down by the Apex Court

in the case of Vineeta Sharma .vs. Rakesh Sharma and

others1 has modified the shares and has granted equal shares

to the plaintiff and defendants.

Hence, the present regular second appeal by defendant

No.3.

4. The learned counsel appearing for the appellant-

defendant No.3 would vehemently argue and contend that the

female members have relinquished their share and insofar as

male co-parceners are concerned, there was a partition in the

year 2004 and the same was acted upon. Therefore, he would

submit that the concurrent findings of the Courts below suffer

from perversity and warrant interference by this Court. The

learned counsel appearing for appellant-defendant No.3 would

also submit that there are several categorical admissions given

by the sisters indicating severance in 2004 itself, which have

not been taken into consideration by the Courts below and as

2020(9) SCC 1

such the same warrants interference at the hands of this

Court.

5. Heard the learned counsel for the appellant and

perused the judgments under challenge.

6. The present appellant-defendant No.3 as well

defendants 1 and 4 have specifically contended that there was

partition in the year 2004 between the male members of the

family and that the sisters i.e. defendants 2,5,7 and 8 have

relinquished their share by executing the consent deed.

Having taken such a plea, it was incumbent on the part of the

defendants to prove the said relinquishment by their sisters by

producing cogent and clinching evidence. Except mutations,

the defendants have not placed any documentary evidence

indicating that their sisters have relinquished their share. The

alleged consent deed executed by the sisters as contended

during trial is also not produced. Therefore, both the Courts

have concurrently held that there cannot be severance in the

joint family without allotting any share to the sisters.

Therefore, both the Courts have concurrently disbelieved the

alleged partition of the year 2004 set up by defendants 3, 4

and 6. Both the Courts below have concurrently held that

there is no severance in the family and the alleged partition of

the year 2004 does not bind the sisters' legitimate share. In

view of amendment to Section 6 of the Hindu Succession Act,

2005 and in the light of the judgment rendered by the Apex

Court in the case of Vineeta Sharma(supra), the sisters by

legal fiction assume the character of co-parceners. Since the

evidence on record does not indicate that shares were allotted

to the sisters, they would also have to be regarded as co-

parceners. I do not find any irregularity or illegality in the

judgments under challenge. No substantial question of law

arises for consideration.

Accordingly, the appeal is dismissed.

SD/-

JUDGE

*alb/-