Karnataka High Court
Shivappa S/O Shankrapopa Karadi vs Basappa S/O Shankrappa Karadi on 25 January, 2022
Bench: Sachin Shankar Magadum
1
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.100053 OF 2021(DEC)
C/W
R.S.A NO.100085 OF 2021
IN RSA NO.100053/2021
BETWEEN:
SHIVAPPA S/O SHANKRAPPA KARADI,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O ALADAKATTE, TQ: RANEBENNUR,
DIST: HAVERI-58115
...APPELLANT
(BY SRI.S.N.BANAKAR, ADV.)
AND:
1. BASAPPA S/O SHANKRAPPA KARADI
AGE 63 YEARS
OCC PROFESSOR AND AGRICULTURE
R/O ALADAKATTI
TQ RANEBENNUR
DIST HAVERI 581115
2. KAREGOUDA S/O SHANKRAPPA KARADI
AGE 52 YEARS OCC AGRICULTURE
R/O ALADAKATTI
TQ RANEBENNUR
DIST HAVERI 581115
2
SMT.SHANTAMMA W/O SHANKRAPPA
KARADI
DELETED AS SHE DIED IN THE
MOTHE OF OCTOBER 2014
THE LRS OF SHANTAMMA ARE ALREADY ON RECORD HENCE
THERE IS NO NEED OR NECESSARY TO BRING THE LRS OF
SHANTAMMA ON RECORD
3. SMT.SHANKRAVVA W/O SOMAPPA HOSAMANI
AGE 66 YEARS
OCC HOUSEHOLD WORK
R/O KONANTELI
TQ RANEBENNUR
DIST HAVERI 581115
4. SMT.ANASUYA W/O UJJAPPA BADNIKAI
AGE 56 YEARS, OCC HOUSEHOLD WORK
R/O ALADAKATTI
TQ RANEBENNUR
DIST HAVERI 581115
5. SMT.SAVITRA W/O HAMPESH BALIKAI
AGE 51 YEARS, OCC AGRICULUTRE
R/O DUDIHALLI, TQ HIREKERUR
DIST HAVERI 581109
6. SMT.SHOBHA W/O KARABASAPPA MATTIHALLI
AGE 49 YEARS, OCC HOUSEHOLD WORK
R/O BETAKERUR
TQ HIREKERUR
DIST HAVERI 581109
7. SMT.LATA D/O KARIYAPPA AANUR
AGE 20 YEARS, OCC STUDENT
R/O BENAKANAKONDA
TQ RANEBENNUR
DIST HAVERI 581115
3
8. NAGAPPA S/O GURAPPA KARADI
AGE 80 YEARS, OCC AGRICULTURE
R/O ALADAKATTI
TQ RANEBENNUR
DIST HAVERI581115
9. HANAMANTAPPA S/O GURAPPA KARADI
AGE 78 YEARS
OCC AGRICULTURE
R/O ALADAKATTI
TQ RANEBENNUR
DIST HAVERI 581115
ESHAPPA S/O GURAPPA KAADI
SINCE DECASED BY HIS LRS
10 . SIDDAVVA W/O ESHAPPA KARADI
AGE 82 YEARS
OCC HOUSEHOLD WORK
R/O ALADAKATTI
TQ RANEBENNUR
DIST HAVERI 581115
11 . MAHADEVAPPA S/O ESHAPPA KARADI
AGE 82 YEARS, OCC AGRICULTURE
R/O ALADAKATTI
TQ RANEBENNUR
DIST HAVERI 581115
12 . PARAMESHAPPA S/O ESHAPPA KARADI
AGE 47 YEARS, OCC AGRICULTURE
R/O ALADAKATTI
TQ RANEBENNUR
DIST HAVERI 581115
13 . PUTTAPPA S/O ESHAPPA KARADI
AGE 40 YEARS OCC AGRICULTURE
R/O ALADAKATTI
4
TQ RANEBENNUR
DIST HAVERI 581115
14 . MANJAPPA S/O ESHAPPA KARADI
AGE 38 YEARS
OCC AGRICULTURE
R/O ALADAKATTI
TQ RANEBENNUR
DIST HAVERI 581115
15 . SMT.AKKAMMA W/O SIDDAPPA MUDIGOUDAR
AGE 62 YEARS
OCC HOUSEHOLD WORK
R/O NANDIHALLI
TQ RANEBENNUR
DIST HAVERI 581115
16 . PRAMILAVVA W/O SHADAKSHARAPPA BANAKAR
AGE 61 YEARS
OCC HOUSEHOLD WORK
R/O HANCHI
POST BARANGI
TQ HIREKERUR
DIST HAVERI-581109
17 . MAHESHAPPA S/O GURAPPA KARADI
AGE 71 YEARS
OCC AGRICULTURE
R/O ALADAKATTI
TQ RANEBENNUR
DIST HAVERI 581115
...RESPONDENTS
(R1 TO R17 ARE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL
PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
5
PASSED IN R.A.NO.54/2015 BY II ADDITIONAL DISTRICT AND
SESSIONS JUDGE AT HAVERI (SITTING AT RANEBENNUR) DATED
08.10.2020. SO ALSO THE JUDGMENT AND DECREE PASSED IN
O.S.NO.27/2008 PASSED BY PRINCIPAL SENIOR CIVIL JUDGE,
RANEBENNUR DATED 16.06.2014. CONSEQUENTLY THE SUIT IN
O.S.NO.27/2008 MAY KINDLY BE DISMISSED BY ALLOWING THIS
RSA IN THE INTEREST OF JUSTICE AND ETC.,
IN RSA NO.100085/2021
BETWEEN:
1. NAGAPPA S/O GURAPPA KARADI
AGE: 79 YEARS, OCC: AGRICULTURE,
R/O: ALADAKATTI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
2. HANUMANTAPPA S/O GURAPPA KARADI,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O: ALADAKATTI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
ISHAPPA S/O GURAPPA KARADI,
SINCE DECEASED BY HIS LRs
3. SIDDAVVA W/O ISHAPPA KARADI
AGE: 83 YEARS, OCC: AGRICULTURE,
R/O: ALADAKATTI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
4. MAHADEVAPPA S/O ISHAPPA KARADI,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O: ALADAKATTI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
6
5. PARAMESHAPPA S/O ISHAPPA KARADI,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: ALADAKATTI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
6. PUTTAPPA S/O ISHAPPA KARADI,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: ALADAKATTI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
7. MANJAPPA S/O ISHAPPA KARADI,
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O: ALADAKATTI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
8. AKKAMMA W/O SIDDANAGOUDA MUDIGOUDAR,
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O: NANDIHALLI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
9. PRAMILAVVA W/O SHADAKSHARAPPA BANAKAR,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: HANCHI, POST-BARANGI,
TQ: SORAB, DIST: SHIVAMOGGA-577432.
10. MAHESHAPPA S/O GURAPPA KARADI,
AGE: 77 YEARS, OCC: AGRICULTURE,
R/O: ALADAKATTI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
...APPELLANTS
(BY SRI.S.N.BANAKAR, ADV.)
AND:
1. BASAPPA S/O SHANKRAPPA KARADI,
AGE: 62 YEARS, OCC: RETIRED,
R/O: ALADAKATTI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
NOW RESIDING AT:
7
RAJARAJESHWARI NAGAR,
RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI-581115.
2. KAREGOUDA S/O SHANKRAPPA
KARADI, AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: ALADAKATTI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
SMT.SHANTAMMA W/O SHANKRAPPA
KARADI (DELETED AS SHE DIED IN THE
MONTH OF OCTOBER, 2014) THE
LRs OF SHANTAMMA ARE ALREADY
ON RECORD. HENCE, THERE IS NO NEED
OR NECESSARY TO BRING THE LRs OF SHANTAMMA
ON RECORD.
3. SMT. SHANKRAVVA W/O SOMAPPA
HOSAMANI, AGE: 66 YEARS,
OCC: HOUSEHOLD WORK,
R/O KONANTELL, TQ: RANEBENNUR,
DIST: HAVERI-581115.
4. SMT. ANASUYA W/O UJJAPPA
BADNIKAL, AGE: 56 YEARS,
OCC: HOUSEHOLD WORK,
R/O ALADAKATTI, TQ: RANEBENNUR
DIST: HAVERI-581115.
5. SMT. SAVITRA W/O HAMPESH
BALIKAL, AGE: 51 YEARS,
OCC: AGRICULTURE, R/O DUDHIHALLI,
TQ: HIREKERUR, DIST: HAVERI-581109.
6. SMT.SHOBHA W/O KARABASAPPA
MATTIHALLI, AGE: 49 YEARS,
OCC: HOUSEHOLD WORK,
R/O BETAKERUR, TQ: HIREKERUR,
DIST: HAVERI-581109
8
7. SHIVAPPA S/O SHANKRAPPA KARADI,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O ALADAKATTI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
8. LATA D/O KARIYAPPA AANUR,
AGE: 20 YEARS, OCC: STUDENT,
R/O BENAKANAKONDA,
TQ: RANEBENNUR, DIST: HAVERI-581115.
...RESPONDENTS
(BY SRI.N.R.KUPPELUR, ADV. FOR R1 TO R6)
THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL
PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
PASSED IN R.A.NO.36/2014 BY II ADDITIONAL DISTRICT AND
SESSIONS JUDGE AT HAVERI (SITTING AT RANEBENNUR) DATED
08.10.2020. SO ALSO THE JUDGMENT AND DECREE PASSED IN
O.S.NO.27/2008 PASSED BY PRINCIPAL SENIOR CIVIL JUDGE,
RANEBENNUR DATED 16.06.2014. CONSEQUENTLY THE
COUNTERCLAIM FILED BY APPELLANTS DATED 15.03.2010 AND
CROSS-OBJECTION FILED UNDER ORDER 41 RULE 22 READ WITH
S.96 OF C.P.C, MAY KINDLY BE ALLOWED AND CONSEQUENTLY
THE DEFENDANT NO.3 TO 6 APPELLANTS COUNTERCLAIM AND
CROSS-OBJECTIONS MAY KINDLY BE ALLOWED BY AWARDING
SHARES IN COUNTERCLAIM SUIT SCHEDULE 'A' PROPERTY BY
ALLOWING THIS R.S.A, THROUGHOUT WITH COSTS IN THE
INTEREST OF JUSTICE AND ETC.,
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
9
JUDGMENT
The captioned second appeals are filed by defendant
No.1 and defendants 3, 4 and legal representatives of
defendant No.5. RSA.No.100053/2021 is filed by defendant
No.1 questioning the concurrent judgments and decrees of the
Courts below in granting share to the respondents-plaintiffs in
the suit schedule properties whereas RSA.100085/2021 is filed
by defendants 3, 4 and L.R.s of defendant No.5.
2. The relevant genealogy of the family is as under:
3. The dispute is between the family members of the
branch of Shankarappa. As is evident from the geneology
furnished supra, the respondents-plaintiffs except defendant
No.1 Shivappa are seeking legitimate share in the suit
schedule properties. Defendants 3 to 6 are also arrayed as
parties who are uncles of appellants and respondents. The
respondents-plaintiffs filed suit for partition and separate
possession by specifically contending that except suit item
A(2) property, all other properties are ancestral joint family
properties. The respondents-plaintiffs specifically contended
that items 3 to 7 were allotted to their father Shankarappa in
a family partition and therefore they claim that they are the
ancestral properties of plaintiffs and defendants. Insofar as
A1 property is concerned, the plaintiffs specifically contended
that their father Shankarappa purchased the said property in
the year 1979 in the name of defendant No.1-Shivappa and
therefore, plaintiffs contended that this property is also joint
family ancestral property as the same was acquired by
utilizing the joint family funds. Insofar as Item No.A2
property is concerned, Respondent No.1-plaintiff No.1 namely
Basappa claimed that he was employed in a College and was
serving as a Lecturer and therefore, he had an independent
earning and he has purchased suit schedule A2 property from
his independent earning without taking assistance of joint
family corpus and therefore claimed that A-2 property is his
self acquired property.
4. On receipt of summons, defendant No.1 contested
the proceedings and stoutly denied the entire averments made
in the plaint. Defendant No.1 stoutly denied that A-1
property is also joint family property and claimed that it is his
self acquired property and therefore, the same is not at all
available for partition. Insofar as A-2 property is concerned,
he specifically denied that it is a self acquired property of
plaintiff No.1 and that he had purchased the same by availing
loan. Defendant No.1 specifically contended that A-2 property
was purchased by availing loan for the joint family and
therefore, claimed that A-2 property is also joint family
ancestral property. Defendants 3 to 6 have also contested the
proceedings. Defendant No.6 filed the written statement and
contended that items 1 to 7 properties are the joint family
ancestral properties and therefore, they claimed 1/4th share.
Defendants 3 to 6 contended that their brother Shankarappa
has only 1/5th share in the suit schedule properties and
therefore, claimed that INitems 3 to 7 in schedule A property,
there was a partition in the year 1990 between father of
plaintiffs and between defendants 3 to 6. Therefore, by way
of a counter claim, they claimed that these properties have
fallen to the share of defendant No.4 and since then they are
enjoying item Nos. 3 to 5 in counter claim as absolute owners.
5. The trial Court having assessed oral and
documentary evidence has come to the conclusion that item
No.A1 property was admittedly purchased by the father of
plaintiffs and defendants in the year 1979 when defendant
No.1-Shivappa was a minor and therefore, the claim of
defendant No.1-Shivappa that it is his self-acquired property is
not substantiated since he has admitted that this property was
purchased by his father Shankarappa while he was minor.
Both the Courts have concurrently held that the suit schedule
property at item No.A1 is also joint family ancestral property.
Insofar as item A-2 property is concerned, the trial Court has
elaborately discussed the clinching evidence adduced by
plaintiff No.1 to substantiate his claim that it is the self
acquired property of respondent No.1-plaintiff No.1, he has
produced Ex.P70 which is a sale original deed. The plaintiff
No.1 has specifically contended that he was working as a
lecturer and therefore he had an independent earning and was
drawing salary of Rs.70,000/- per month and therefore, he
claimed that by availing loan he has purchased A-2 property.
To substantiate his claim, Plaintiff No.1 has produced various
bank pass books and other correspondences from the Bank
vide Exs.P10 to 16. The trial Court having perused Exs.P10 to
16 has come to the conclusion that plaintiff No.1 has availed
loans to purchase A-2 property. Placing reliance on Ex.P8, the
Court also found that as on 1.1.2009 he was drawing a net
salary of Rs.29,328/-. The documents produced at Exs.P34 to
46 were also taken note of and the trial Court found that
plaintiff No.1 has obtained various LIC policies standing in his
name and therefore, in this background, the trial Court found
that plaintiff No.1 has produced voluminous documents which
would clinch that A-2 property is his self-acquired property
and the same is purchased by him from his independent
earning and without utilizing the joint family corpus. Insofar
as A-1 property is concerned, the respondents-plaintiffs have
succeeded in eliciting from the mouth of D.W.1 that item
No.A-1 property was purchased by Shankarappa somewhere
in 1979 and during 1979 defendant No.1 was a minor and this
fact is admitted. The trial Court having taken note of this fact
has come to the conclusion that A-1 property is also joint
family ancestral property as the same was purchased by the
father of plaintiffs and Defendant No.1 in the year 1979 and
therefore, the same is available for partition.
6. Though defendants 3 to 6 have asserted that suit
items 3 to 6 are their absolute properties in view of earlier
partition, however, there is no specific denial in regard to
plaint items 4 to 7 properties. Therefore, in absence of
specific denial and rebuttal evidence adduced by defendants 3
to 6 to exclude these properties from the joint family
properties, the trial Court has drawn an inference that items 4
to 7 properties mentioned in the plaint are also joint family
properties and the same are available for partition. The trial
Court has also taken note of the fact that defendants 3 to 6
have not claimed any share by way of counter claim in items 4
to 7. On the contrary, the trial Court found that a specific
suggestion was made by the counsel appearing for defendants
3 to 6 indicating that suit items 3 to 7 properties have fallen to
the share of father of P.W.1 i.e. Shankarappa. Taking note of
this categorical admission,trial Court was of the view that
defendants 3 to 6 are not entitled for any share insofar as
items 3 to 7 properties are concerned.
7. In regard to items 9A to 9(4)properties are
concerned, the trial Court found that these properties were
subsequently included in the plaint and these properties were
referred by defendants 3 to 6 in thecounter claim raised by
them.
8. Insofar as plaint schedule B5 properties are
concerned, whichis item No.7 of counter claim schedule
property of D.W.4, the trial Court was of the view that plaintiff
No.1 has utterly failed to prove that this property was
exclusively allotted to his father Shankarappa. Similarly, trial
Court also found that defendants 3 to 6 have also failed to
prove that this property was allotted to their joint share. The
trial Court having examined Ex.D38 has found that these
properties still continues to be in the joint names of all five
brothers i.e. father of P.W.1 and defendants 3 to 6 and
therefore, this property was also held to be the joint family
property and the same is available for partition.
9. Insofar as Schedule B1 to B3 properties are
concerned, the trial Court having examined the material the
on record found that though defendants 3 to 6 contend that
these properties were also allotted in a partition between
themselves and father of P.W.1-Shankarappa, however, no
clinching evidence is produced to indicate that these properties
were allotted exclusively to the share of defendants 3 to 6 in
the alleged family partition and therefore the trial Court has
come to the conclusion that insofar as Schedule B1 to B3
properties are concerned, the plaintiffs and defendant No.1
who represent the branch of Shankarappa and defendants 3 to
6 are equally entitled for a share in the said properties. On
these set of reasonings, the trial Court has proceeded to
decree the suit granting 1/9th share to plaintiffs 1 to 7 and
defendant Nos.1 and 2 in schedule A-1 and 3 to 7 properties
as well as Schedule B4 property and 1/45 share in plaint
schedule A7 and 8 properties and B1 to B3 and B5property.
The trial court has also allowed the counter claim filed by
defendants 3 to 6 by declaring that they are also entitled to
1/5th share in the counter claim schedule item Nos.3 to 5 and
7 properties.
10. Feeling aggrieved by the judgment and decree of
the trial Court passed in O.S.27/2008, defendant No.1
preferred an appeal in R.A.54/2015 and Defendants 3 to 6
filed an appeal in RA.36/2014. Both the appeals were clubbed
and the appellate Court having appreciated the oral and
documentary evidence, has concurred with the findings
recorded by the trial Court in respect of Schedule A1 property
and Schedule A2 property. The appellate Court on
reappreciation also concurred with the findings recorded by
the trial Court insofar as items 3 to 7 of plaint schedule
properties are concerned by holding that the said properties
were allotted to the share of plaintiffs' father in a family
partition and therefore, plaintiffs and defendants 1 and 2 who
represent the branch of Shankarappa are entitled for equal
share in the above said properties. However, the relief of
partition sought by defendant No.1 in respect of A-2 property
was rightly denied by the appellate Court also.
11. The appellate Court also found that though
defendant No.6 has claimed that Schedule B1 to B5 properties
have fallen to the share of defendants 3 to 6 except producing
F.D. receipts, the defendants 3 to 6 have not produced any
documents to demonstrate that these properties have fallen to
their share in the family partition. The appellate Court also
found that plaintiffs have also not pleaded and proved that
Schedule B1 to B5 properties are the self-acquired property of
Shankarappa. Appellate Court on reappreciation found that
insofar as item No.6 bearing VPC No.187 is concerned, the
same was divided among all the five brothers but that did not
include item Nos.B1 to B3 properties. Therefore, appellate
Court was of the view that insofar as B1 to B3 properties are
concerned, Shankarappa and his brothers continued to enjoy
the said properties jointly and therefore, the same would be
available for partition. The appellate Court has also placed
reliance on Ex.D38 where it is found that the properties at
item No.7 in counter claim is still standing jointly in the name
of father of plaintiffs 1 to 6 and defendants 1 and 2 and
defendants 3 to 6. Therefore, the appellate Court has also
come to the conclusion that suit item B5/item No.7 of counter
claim is also available for partition.
12. On re-appreciation, the appellate Court was also of
the view that legal heirs of late Shankarappa are entitled to
equal share in A1 and A3 to 7 properties and B4 properties.
Appellate Court was also of the view that A8 and A9 are to be
divided among all the branches. B1 to B3 and B5 properties
were held to be joint family properties and not exclusive
properties of defendants 3 to 6. On these set of grounds, the
appellate Court also held that A-2 property is the self-acquired
property of plaintiff No.1 and has proceeded to dismiss both
the appeals filed by defendant No.1 and defendants 3 to 6.
13. It is against these concurrent judgments and
decrees of the Courts below, defendant No.1 has preferred an
appeal in RSA.No.100053/2021 whereas defendants 3 to 6
have preferred an appeal in RSA.No.100085/2021.
14. Heard the learned counsel for the appellants.
Perused the judgments and decrees passed by the Courts
below.
15. The clinching evidence adduced by plaintiff No.1
clearly establishes that A-2 property is his self- acquired
property and the same was purchased by plaintiff No.1 by
contributing from the savings of his income as well as by
availing loan from the Bank. Plaintiff No.1 has produced
cogent and clinching evidence to indicate that A-2 property is
his self- acquired property. Both the Courts have
concurrently held that plaintiff No.1 has purchased A-2
property from his independent earnings and therefore, it is his
self-acquired property. There is also concurrent finding of fact
by both the Courts that plaintiff No.1 was even contributing to
the family and was taking care by providing portion of his
salary to the family of plaintiffs 1 to 6 and defendants 1 and 2.
16. Insofar as claim of defendant No.1 is concerned,
both the Courts have concurrently held that item No.A2
property, which was purchased by Shankarappa in the name
of defendant No.1 who was minor during 1979 is also
ancestral property and therefore, plaintiffs as well as
defendants 1 and 2 are entitled for equal share in item No.A2
property. Both the Courts have concurrently declined to
accept the contention of defendants 3 to 6 insofar as Schedule
B1 to B3 and B5 properties are concerned. The contention of
defendants 3 to 6 who are appellants in RSA.100085/2021 is
rejected by both the Courts by holding that the property at
Schedule B1 to B3 and B5 are joint family ancestral properties
of defendants 3 to 6 and Shankarappa and therefore, both the
Courts have proceeded to grant a share even in these
properties to the plaintiffs as well as to defendants 3 to 6. The
concurrent findings recorded by the Courts below are based on
legal evidence adduced by plaintiffs. Defendants 3 to 6 have
also failed to prove that properties at B1 to B5 were allotted to
them in a family partition and the claim of defendants 3 to
6that these properties are their exclusive properties is
negatived by both the Courts.
17. In that view of the matter, no substantial question
of law arises in both the second appeals and accordingly both
the appeals are dismissed.
SD/-
JUDGE
*alb/-
