Karnataka High Court
Smt. Sangavva W/O Basavaraj ... vs Ningappa S/O Basappa Kendur 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.100242 OF 2021(PAR)
BETWEEN:
SMT. SANGAVVA W/O SANGAPPA KENDUR,
SINCE DEAD HER LEGAL REPRESENTATIVES,
ALREADY ON RECORD AS APPELLANT NOS.6 TO 12
1. SMT.SANGAVVA W/O BASAVARJ KENDUR,
AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
R/O: KALLIGUDD, TAL: HUNGUND,
DIST: BAGALKOT, PIN: 587118.
2. GULAPPA S/O BASAVARAJ KENDUR,
AGE: 62 YEARS, OCC:AGRICULTURE,
R/O: KALLIGUDD, TAL: HUNGUND,
DIST: BAGALKOT, PIN: 587118.
3. BASAPPA S/O BASAVARAJ KENDUR,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: KALLIGUDD, TAL: HUNGUND,
DIST: BAGALKOT, PIN: 587118.
4. MANJULA D/O BASAVARAJ KENDUR,
AGE: 34 YEARS, OCC: HOUSEHOLD WORK,
NOW MARRIED TO MALLAPPA PALLED,
NOTE: AFTER MARRIAGE APPEALLANT 4
KNOWN AS MANJULA Y.PALLED
R/O:RON, TAL: RON,
DIST:GADAG.
2
5. NAGAPPA S/O SANGAPPA KENDUR,
AGE: 52 YEARS, OCC:AGRICULTURE,
R/O:GULEDGUDD, TAL: GULEDGUDD,
DIST: BAGALKOT, PIN:587202.
6. NEELAPPA S/O SANGAPPA KENDUR,
AGE: 48 YEARS, OCC: SERVICE,
R/O: HUBBALLI, TAL: HUBBALLI,
DIST:DHARWAD.
7. SMT.NAGAVVA W/O SANGAPPA GUDADARI,
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
R/O:GULEDGUDD, TAL: GULEDGUDD,
DIST: BAGALKOT.
8. SMT.BASAVVA W/O BASAPPA BHAVIKATTI,
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
R/O: HANAMASAGAR, TAL: KUSHTAGI,
DIST:KOPPAL.
9. MAGUNDAPPA S/O SANGAPPA KENDUR,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O:HALADUR, TAL: BADAMI,
DIST: BAGALKOT, PIN: 587201.
10. SMT. GIRIJA W/O NAGAPPA KENDUR,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O: HALADUR, TAL:BADAMI,
DIST: BAGALKOT, PIN: 587201.
...APPELLANTS
(BY SRI.S.B.HEBBALLI, ADV.)
AND:
1. NINGAPPA S/O BASAPPA KENDUR,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: HALADUR, TAL:BADAMI,
DIST: BAGALKOT, PIN: 587201.
3
2. MAHANTESH S/O SANGAPPA KENDUR,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: HALADUR, TAL:BADAMI,
DIST: BAGALKOT, PIN: 587201.
3. VIRUPAKSHI S/O SNAGAPPA KENDUR,
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O: HALADUR, TAL:BADAMI,
DIST: BAGALKOT, PIN: 587201.
4. SARASWATI SANGAPPA KENDUR,
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
NOW MARRIED TO GURURAJ PATIL,
R/O:NAVANAGAR, BAGALKOT, PIN: 587101.
5. SHIVAPPA BASAPPA KENDUR,
AGE: 67 YEARS, OCC: AGRICULTURE,
R/O:KALLIGUDD, TAL:HUNGUND,
DIST: BAGALKOT, PIN: 587118.
...RESPONDENTS
(BY SRI.SANJAY B.CHANAL, ADV. FOR C/R1)
THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 23.03.2021
PASSED IN R.A.NO.106/2009, ON THE FILE OF THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE BAGALKOT, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
09.06.2009 PASSED IN O.S.NO.140/2007, ON THE FILE OF THE
SENIOR CIVIL JUDGE & JMFC, BADAMI AND DISMISS THE SUIT
FILED BY THE RESPONDENT NO.1, IN THE INTEREST OF JUSTICE.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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JUDGMENT
The captioned regular second appeal is filed by
defendant No.1(a) questioning the concurrent judgments and
decrees of the Courts below in granting 1/4th share to
respondent No.1-plaintiff in Schedule A, B and C properties.
2. For the sake of convenience, the parties are
referred to as per their rank before the trial Court.
3. The facts leading to the case are as under:
The first respondent, who is the plaintiff, filed a suit for
partition and separate possession in O.S.No.140/2007. The
plaintiff specifically contended that he along with defendants 1
to 14 constituted an undivided joint Hindu family and
therefore, the suit schedule properties are joint family
ancestral properties of plaintiff and defendants. The plaintiff
specifically contended in the plaint that Schedule 'A' properties
which are agricultural lands are ancestral joint family
properties. Schedule 'B' properties were purchased from out
of the income of the joint family in the name of defendants
and therefore, contended that Schedule 'B' properties are also
joint family ancestral properties. Further, it was contended
that insofar as Schedule 'C' properties are concerned, they
were tenanted lands and therefore, Form No.7 was filed and
was granted in favour of defendant No.1 and as such the same
would enure to the entire family of plaintiff and defendants.
Insofar as Schedule 'D' properties are concerned, the plaintiff
contended that they are ancestral houses and were owned by
the father of plaintiff and defendants.
On receipt of summons, the appellant-defendant
No.1(a), who is the widow of original defendant No.1
contested the proceedings and filed written statement stoutly
denying the entire averments made in the plaint and it was
specifically contended that her husband was into trading
business and had an independent income and therefore, the
properties purchased by Sangappa are his self- acquired
properties. Defendants 1 and 6 further specifically contended
that they were very hard earning members and by availing
loans from Banks have developed their lands and therefore,
schedule 'B' properties are their self-acquisitions and are not
available for partition. Defendants 1 to 13 specifically
contended that except schedule 'A' lands, the other properties
are self acquired properties and therefore, prayed for dismissal
of the suit in respect of schedule B to D properties.
The trial Court having assessed the oral and
documentary evidence has answered issue Nos.1 and 2 partly
in the affirmative by holding that schedule 'A to D' properties
are joint family ancestral properties and the plaintiff is entitled
for 1/4th share. The trial Court while answering issue Nos.1
and 2 has also negatived the defence set up by the defendants
that during the life time of propositus Basappa, there was a
partition insofar as schedule 'A' properties are concerned.
Having raised such a plea, the burden was on the defendants
to establish that there was severance during the life-time of
propositus Basappa. The trial Court having specifically
examined the mutation entry bearing No.ME 3038 and other
mutations vide Ex.D2 found that their names were mutated
not in terms of the oral partition as alleged by the defendants,
but mutation was effected on an Waradhi given by the
propositus Basappa who requested to effect mutation in the
names of his sons since on account of his old age he was not
able to manage the affairs of the agricultural lands. The trial
Court having referred to Ex.D57 and Ex.D1 has recorded a
categorical finding that there is no severance as alleged by the
defendants. On the contrary, the clinching evidence on record
indicates that plaintiff continued to live jointly along with his
brothers i.e. defendants and therefore, plaintiff and
defendants are in joint possession and enjoyment over the suit
schedule properties. On these set of reasoning, the trial Court
has proceeded to negative the contention of the defendants
that there was a partition insofar as schedule 'A' properties are
concerned during the life-time of their father Basappa.
Now coming to Schedule 'B' property, the defendants
have specifically contended that sale deeds are in the name of
independent persons and the said properties are self-acquired
properties of Sangappa, Lingappa and Basappa. To
substantiate their claim, the defendants have produced the
copies of the registered sale deeds as per Exs.D19, 20 and 21.
The trial Court having appreciated this rebuttal evidence was
of the view that those sale deeds are admittedly in the name
of defendants and merely because they were purchased in
their names would not establish that they are their self-
acquisitions. The trial Court while appreciating the evidence
on record has taken judicial note of the fact that the family of
plaintiff and defendants owned 25 acres of agricultural land
and therefore, the trial Court has come to the conclusion that
the family had a sufficient nucleus and possessed sufficient
properties and when the family of the plaintiff and defendant
possessed 25 acres of agricultural land, heavy burden lies on
the joint family members to establish that the joint family
corpus was not utilized and the properties were acquired from
their independent earnings. The trial Court having assessed
the oral and documentary evidence has recorded a finding that
there is absolutely no clinching evidence indicating that
defendants had independent earnings and the acquisitions
were not from the joint family corpus. On these set of
reasoning, the trial Court has negatived the contention of the
defendants that schedule 'B' properties are their self-
acquisitions.
On perusal of the judgment and decree of the first
appellate Court, this Court would find that the first appellate
Court has exhaustively dealt with the material on record and
has given its specific findings in respect of all the properties.
In fact, it has taken lot of pain and has tabulated the details of
the property held by the joint family as well as the details of
the properties purchased by the family members of the
plaintiff and defendants. On re-appreciation of the oral and
documentary evidence, the first appellate Court has also
concurred with the judgment and decree of the trial Court and
has recorded a specific finding that the defence set up by the
defendants that there was a partition in respect of Schedule 'A'
property during the life-time of their father Basappa is not at
all proved by the defendants. Further, it has recorded a
finding that defendants have not produced any documents
indicating that they had any independent earnings. On these
reasoning, the first appellate Court has proceeded to concur
with the findings of the trial Court.
Being aggrieved by the concurrent findings, the present
second appeal is filed by defendant No.1(a).
4. Heard the learned counsel for the appellant-
defendant No.1(a) and perused both the judgments under
challenge.
5. One Basappa is the propositus. Sangappa
(defendant No.1), Basavaraju (dead), Shivappa (defendant
No.14) and Lingappa (plaintiff) are his four sons. Though the
defendants have come up with a specific case before the trial
Court that there was severance in their family during the life-
time of their father Basappa, however, the defendants have
not adduced any clinching documentary evidence to indicate
that there was severance between four brothers during the
life-time of their father Basappa. If severance is not
established then the family of plaintiff and defendants who
owned 25 acres of ancestral agricultural lands and their being
no partition would assume importance and therefore would be
relevant while considering the nature of schedule 'B'
properties. The schedule 'B' properties were in fact purchased
in the names of defendants under registered sale deeds which
are at various point of time. Except, the third son Shivappa,
who is defendant No.14, none of the other defendants have
come forward to file the written statement and contend that
they have purchased schedule 'B' properties from their
independent earnings. In fact, except Shivappa none of the
brothers have pleaded that they had separate income and the
sale deeds which are standing in their respective names were
purchased from their independent earnings without touching
the corpus of the joint family properties. The material on
record would clearly demonstrate that defendant No.1 in
whose name substantial properties are purchased and
Basavaraju who is husband of defendant No.2 have not
stepped into the witness box to substantiate their claim that
schedule 'B' properties are their self acquired properties.
Therefore, I am of the view that both the Courts were justified
in not accepting the contention raised by defendants in regard
to schedule 'B' properties. In the absence of rebuttal clinching
evidence indicating that defendants had independent earnings
both the Courts have rightly come to the conclusion that even
schedule 'B' properties are joint family ancestral properties
and the same were acquired by utilizing the joint family funds.
6. Insofar as schedule 'C' properties are concerned,
though defendant No.1 claims that he had filed Form No.7 in
his individual capacity, however, on bare perusal of Form
No.7, which is produced at Exs.D27 and 29 would clinch the
issue. In Form No.7, Sangappa has specifically stated that he
is seeking occupancy rights on behalf of 12 family members.
Admittedly, the family consists of himself, the present
appellant who is arrayed as Defendant No.1(a) and defendants
6 to 13. If these relevant details are taken into consideration,
the fact that deceased defendant No.1 has stated that his
family consists of 12 members would necessarily include his
brother also. Therefore, Form No.7 was filed not in his
individual capacity but also on behalf of his brothers and this
disclosure made in Form No.7 would also pre-supposes that
schedule 'C' properties are joint family tenanted properties
and occupancy rights granted in favour of deceased defendant
No.1-Sangappa would enure to the benefit of their brothers
namely Basavaraju, who is no more and Shivappa(defendant
No.14) and Lingappa(plaintiff). If at all schedule 'C' properties
were tenanted lands deceased defendant No.1 in his individual
capacity, then it was incumbent upon defendant No.1 to
produce cogent and clinching evidence to prove that it is a
case of individual tenancy and therefore, their brothers had no
semblance of right and title in schedule 'C' properties.
However, the deceased defendant No.1 and after his death his
widow i.e. appellant-defendant No.1(a) have not placed on
record any evidence indicating that her husband Sangappa
took the lands on lease in his individual capacity. In the
absence of rebuttal evidence, both the Courts have
concurrently held that schedule 'C' properties are joint family
tenanted properties and the occupancy rights granted in
favour of deceased defendant No.1 would enure to the benefit
of the entire family.
7. In the light of the discussions made supra, I am of
the view that the judgments and decrees of the Courts below
in granting share to the plaintiff in schedule 'A to C' properties
are in accordance with law and based on legal evidence. 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/-
