Karnataka High Court

Smt. Jyoti W/O Deepak Alias ... vs Satish S/O Sadanand Badndekar on 11 January, 2022

Bench: Sachin Shankar Magadum

                              1


             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

        DATED THIS THE 11TH DAY OF JANUARY, 2022

                           BEFORE

   THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

             R.S.A.NO.100061 OF 2021(PAR)

BETWEEN:

1. SMT.JYOTI W/O DEEPAK @ CHANDRAHAS BANDEKAR
AGE: 62 YEARS,
R/O: PATRO PLAZA F4, 1ST FLOOR
KALANAGAR, BARDEZ,
GOA STATE - 403521

2. KUMAR ABHISHEK
S/O DEEPA @ CHANDRAHAS BANDEKAR
AGE: 16 YEARS, R/O: PATRO PLAZA F4, 1ST FLOOR,
KALANAGAR, BARDEZ,
GOA STATE - 403521
REPRESENTED BY HIS NATURAL MOTHER
AND GUARDIAN SMT.JYOTI
W/O DEEPAK @ CHANDRAHAS BANDEKAR
                                                 ...APPELLANTS
(BY SRI.GIRISH A.YADAWAD, ADV.)

AND:

1. SATISH S/O SADANAND BANDEKAR
AGE: 67 YEARS, R/O: MAJALI KARWAR,
NOW RESIDING AT ARUN APARTMENT,
CO-OPERATIVE HOUSING SOCIETY LTD.,
A-4, GROUND FLOOR, N.M.ROAD, DAHISAR(W),
MUMBAI-400068, MAHARASHTRA

2. SMT CHAYA
W/O KISHORE BANDEKAR (UFM)
AGE: 63 YEARS, R/O: MAJALI, KARWAR,
NOW RESIDING AT SWAPNA CO-OPERATIVE
                               2


HOUSING SOCIETY LTD, PLOT NO.107,
ROOM NO.28, CHARKOP, KANDIVALI(W),
MUMBAI 400067, MAHARASHTRA

3. MILIND S/O SADANAND BANDEKAR
AGE: 60 YEARS, R/O: MAJALI, KARWAR,
NOW RESIDING AT SWAPNA CO-OPERATIVE
HOUSING SOCIETY LTD, FLAT NO.302, 3RD FLOOR,
N.M.ROAD, DAHISAR(W), MUMBAI - 400068, MAHARASHTRA

4. SMT. SUDHA @ SUCHITA
D/O SADANAND BANDEKAR
W/O VISHWANATH AREKAR
AGE: 65 YEARS, R/O: MALLU NIVAS, FLAT NO.402,
4TH FLOOR, BALKRISHNA TAVDE ROAD,
DAHISAR (W), MUMBAI-400068, MAHARASHTRA.

5. SMT. LATIKA D/O KISHORE BANDEKAR
W/O RISHI RATHOD, AGE: 41 YEARS,
R/O: MAJALI, KARWAR,
NOW RESIDING SWAPNA CO-OPERATIVE HOUSING
SOCIETY LTD, PLOT NO.107,
ROOM NO.28, CHARKOP, KANDIVALI(W),
MUMBAI - 400067, MAHARASHTRA.

6. SMT.POOJA @ SAWARI D/O KISHORE BANDEKAR
W/O SANDESH BANDEKAR
AGE: 36 YEARS, R/O: MAJALI, KARWAR,
NOW RESIDING SWAPNA CO-OPERATIVE
HOUSING SOCIETY LTD, PLOT NO.107,
ROOM NO.28, CHARKOP, KANDIVALI (W),
MUMBAI-400067, MAHARASHTRA.
                                                ...RESPONDENTS

      THIS APPEAL IS FILED UNDER 100 OF CPC, 1908, AGAINST
THE JUDGEMENT AND DECREE DTD.24.08.2020 PASSED IN
R.A.NO.123/2019 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, KARWAR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DTD.26.09.2019, PASSED IN O.S.
NO.167/2016 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE,
KARWAR, PARTLY DECREEING THE SUIT FILED FOR PARTITION.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                      3


                             JUDGMENT

The captioned second appeal is filed by the unsuccessful

defendants questioning concurrent findings of the Court below

granting 1/4th share in suit schedule item No.1 property and

1/5th share in suit schedule item No.2 property respectively to

plaintiff No.1 as well as branch of plaintiffs 2, 5 and 6 together

and branch of plaintiff No.3 and branch of defendants.

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 plaintiffs filed suit for partition and separate

possession in O.S.No.167/2016. The plaintiffs specifically

contended that the suit schedule properties originally belonged

to one Pundalik Vishnu Bandekar. It is specifically contended

that the propositus Pundalik had mulageni rights in the suit

schedule properties. After his death, his daughter Meerabai

inherited the property and she has constructed a house in the

property bearing No.493 and suit schedule property No.1. The

plaintiffs further contended that house No.494 is situated in

Item No.2 property. The plaintiffs further contended that house

No.494 is situated in Item No.2 property. The plaintiffs further

contended that the propositus Pundalik had availed loan from

several people and was in the habit of mortgaging the suit lands

to the creditors. Therefore, to avoid future complications, he

had made a deceptive entry in the name of his grandson i.e. the

elder son of his daughter Meerabai, who is none other than the

husband of defendant No.1 and father of defendant No.2. The

plaintiffs contended that this entry in the revenue records was

only to get over the creditors and claimed that it did not confer

any title in favour of defendant No.1 exclusively. The plaintiffs

also contended that husband of defendant No.1-Deepak @

Chandrahas Bandekar was residing in Goa State. It is only

when plaintiffs visited in the month of April 2016, they were

shocked to see that defendant No.1 had locked the house by

removing the key fixed by the plaintiffs. On enquiry, defendant

No.1 had refused to allow them to enter the house and asserted

her exclusive right and title to the property and to effect

partition. Therefore, the plaintiffs filed the suit seeking partition

and separate possession of the suit schedule properties.

4. The present appellants-defendants on receipt of

summons contested the proceedings, however, admitted that

the suit schedule property at Sl.No.1 is the joint family ancestral

property and contended that they have no objection to effect

partition by metes and bounds. However, the claim of plaintiff

No.4 who appears to be the married daughter of Meerabai was

seriously disputed by the defendants. Insofar as Item No.2

property is concerned, the defendants specifically claimed that it

is the exclusive property of her husband Deepak @ Chandrahas

Bandekar and therefore, contended that the present suit is not

at all maintainable insofar as item No.2 property is concerned.

5. The plaintiffs in support of their contention let in

ocular evidence and also produced documentary evidence vide

Exs.P1 to P28. The defendants also let in ocular evidence by

examining of defendant No.1 as D.W.1, but, however, produced

no documentary evidence. The trial Court having appreciated

the oral and documentary evidence held that the suit schedule

properties are joint family ancestral properties and defendant

No.1 cannot assert absolute right over item No.2 property only

on the basis of the mutation entry in M.E.No.13543 as per

Ex.P24. The trial Court was of the view that in the absence of

registered relinquishment deed or registered document,

defendant No.1 cannot assert right and title over item No.2

property. The trial Court was of the view that the rights in an

immovable property, value of which is more than Rs.100/-,

cannot be transferred by way of Waradhi or by mutation. The

trial Court was of the view that it can be done only by way of

registered document and in the absence of the same, no title

would pass on in favour of defendant No.1. On these set of

reasonings, the trial Court negatived the contentions of

defendants and decreed the suit granting share to the plaintiffs.

6. Being aggrieved by the said judgment and decree of

the trial Court, the defendants i.e. the present appellants

preferred an appeal before the first appellate Court. The first

appellate Court having independently assessed the oral and

documentary evidence has concurred with the judgment and

decree of the trial Court. The first appellate Court having

reassessed the oral evidence of P.W.1 and also having

meticulously examined the documents vide Exs.P16 to 26 has

come to the conclusion that the suit schedule properties were

admittedly owned by the propositus Pundalik Vishnu Bandekar

and after his death his wife Lakshmi Bai and his daughter Meera

Bai inherited the suit schedule properties. The present plaintiff

Nos.1, 3 and 4 and husband of defendant No.1 namely Deepak

@ Chandrahas Bandekar are the sons and daughters of

Meerabai who inherited the present suit schedule properties

from her father Pundalik. The first appellate Court was also of

the view that defendant No.1 cannot assert exclusive right and

title by placing reliance on the mutation in the revenue records.

The appellate Court was also of the view that the said mutation

would not create any right and title. Therefore, in the absence

of registered document indicating that there was transfer of title

insofar as item No.2 was concerned, the first appellate Court

was also of the view that the said property is also liable for

partition and the plaintiffs are entitled for share. On these set

of reasonings, the first appellate Court has concurred with the

judgment and decree of the trial Court and consequently

dismissed the appeal.

7. It is against these concurrent findings, the

defendants are before this Court.

8. Heard the learned counsel for the appellants-

defendants and the learned counsel for respondents-plaintiffs.

9. The controversy revolves around a very narrow

compass. The defendants have admitted that item No.1

property is the joint family property and therefore, there is no

dispute in regard to the same. Insofar as item No.2 property is

concerned, the defendants contend that the same is standing in

the name of husband of defendant No.1 and the mutation was

effected on 24.8.1956 and as such the plaintiffs are not entitled

for any share in the said property.

10. The short question which needs to be examined by

this Court is:

"Whether defendant No.1 by placing reliance on the mutation in favour of her husband can assert absolute right and title and deny the legitimate right and title of the plaintiffs?

11. The answer is "No". Admittedly, the suit schedule

properties were originally owned by one Pandurang Vishnu

Pundalik. After his death his daughter Meerabai inherited the

suit schedule property from her father. Husband of defendant

No.1, plaintiffs 1, 3 and 4 and husband of plaintiff No.2 i.e.

Kishore Bandekar are all sons and daughter of Meerabai. In

that view of the matter, on the death of Meerabai, her children

would succeed to the suit schedule property under Section 15 of

the Hindu Succession Act. The plaintiffs who are the wife and

son of defendant No.1 who was the eldest son of Meerabai

cannot seek exclusive right over the property in question. Both

the Courts have decided the controversy in question and have