Karnataka High Court
Smt Kallawwa Chandram Shivoor vs Shri Mallappa Gurappa Aliyabad ... on 11 January, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF JANUARY 2022
PRESENT
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS.JUSTICE K.S.HEMALEKHA
RFA NO.6061/2013 (PAR)
C/W
RFA CROB No.200001/2014 (PAR/POS)
IN RFA NO.6061/2013:
BETWEEN:
Mallappa since deceased by his LR's.
1A) Shantabai W/o Late Mallappa Aliyabad
Aged about 46 years, Occ: Household
1B) Satawwa W/o Ashok Sonnad
Aged about 34 years
Occ: Household
1C) Gururaj S/o Late Mallappa Aliyabad
Aged about 30 years, Occ: Service
1D) Nagaraj S/o Late Mallappa Aliyabad
Aged about 28 years, Occ: Service
R/o Chintamani, Tq. Chintamani
Dist. Kolar
2
1E) Shreedevi W/o Nagappa Hallur
Aged about 26 years, Occ: Household
R/o Honnakatti, Tq. & Dist. Bagalkot
(amended vide Court order Dtd. 23.01.2015)
... Appellants
(By Sri I.R. Biradar, Advocate)
AND:
1. Smt. Kallawwa W/o Chandram Shivoor
Aged about 60 years, Occ: Agriculture & Household
R/o Buranpur, Tq. & Dist. Bijapur
2. Smt. Yallawwa W/o Shrishail Mattalli
Age: 42 years, Occ: Agriculture & Household
R/o Atharga, Tq. Indi, Dist. Bijapur
3. The State of Karnataka
Represented by
Deputy Commissioner, Bijapur
4. The Land Acquisition Officer
Karnataka Industrial Development Board
Hubli-Dharwad Road, Dharwad
(As per court order dtd. 13.02.2014
cause title amended)
... Respondents
(Sri S.S. Mamadapur, Advocate for
Sri Ashok R. Kalyanshetty, Advocate for R1;
Sri Ravi G. Madabhavi, Advocate for R2;
Sri Mallikarjun C. Basareddy, HCGP for R3;
Sri R.V. Nadagouda, Advocate for R4)
3
This Regular First Appeal is filed under Section 96 of
CPC, praying to call for the records pertains to
O.S.No.16/2009 on the file of the I Addl. Senior Civil Judge
at Bijapur, peruse the same and set aside the judgment
and decree dated 06.09.2013, in so for as awarding share
in the compensation amount awarded by the 4th
defendant to the plaintiff in respect of acquisition of land
bearing Sy.No.24/2 and VPC No.36/1 of Buranpur village.
IN RFA CROB NO.200001/2014:
BETWEEN:
Smt. Kallawwa W/o Chandram Shivoor
Age: 64 years, Occ: Agriculture & Household
R/o Burnapur, Tq. & Dist. Bijapur
... Cross objector
(By Sri S.S. Mamadapur, Advocate for
Sri Ashok R. Kalyanshetty, Advocate)
AND:
1. Sri. Mallappa Gurappa Aliyabad
Since deceased by his LRs.
1A. Smt. Shantabai W/o Mallappa Aliyabad
Age: 52 years, Occ: Household work
1B. Smt. Satavva W/o Ashok Sonnad
Age: 33 years, Occ: Household work
1C. Sri. Gurappa S/o Mallappa Aliyabad
Age: 31 years, Occ: Agriculture
1D. Smt. Sridevi W/o Nagappa Hallur
Age: 29 years, Occ: Household work
1E. Sri. Raju S/o Mallappa Aliyabad
Age: 27 years, Occ: Conductor
4
1A to 1E are R/o Buranpur Village
Tq. & Dist. Vijaypur
2. Smt. Yallawwa Shrishail Mattalli
Age: 46 years, Occ: Agriculture & Household
R/o Atharga, Tq. Indi, Dist. Bijapur
3. The State of Karnataka
Rep. by Deputy Commissioner
Vijaypur - 586 101
4. The Land Acquisition Officer
Karnataka Industrial Development Board
Hubli-Dharwad road, Dharwad
... Respondents
(Sri I.R. Biradar, Advocate for R1 (A to E);
Sri Ravi G. Madabhavi, Advocate for R2;
R3 & R4 are served)
This RFA Crob is filed under Order 41 Rule 22 of CPC,
praying to allow this appeal by suitable modifying the
judgment and decree dated 06.09.2013 passed by the
learned I Addl. Senior Civil Judge, Bijapur, in
O.S.No.16/2009.
This appeal and cross-objection coming on for Final
Hearing this day, K.S. Hemalekha J, delivered the
following:
JUDGMENT
RFA No.6061/2013 is preferred by defendant No.1
assailing the judgment and decree dated 06.09.2013
passed in O.S.No.16/2009 by the I Addl. Senior Civil Judge
at Bijapur insofar as allotting share in the compensation
amount awarded by defendant No.4 in respect of
acquisition of lands bearing Sy.No.24/2 and VPC No.36/1
of Buranapur village. Whereas, RFA CROB
No.200001/2014 is preferred by the plaintiff assailing the
very same judgment and decree passed by the Trial Court
insofar as non-granting of share in Sy.No.112/1+2 and
seeking for modification of the share in respect of the suit
schedule property.
2. For the sake of convenience, the parties are
referred to as per their ranking in the Trial Court.
3. The plaintiff filed O.S.No.16/2009 for partition
and separate possession in respect of suit schedule
property bearing Sy.No.24/2, measuring 7 acres 13
guntas, Sy.No.112/1+2, measuring 5 acres 20 guntas and
the house property bearing VPC No.36/1 of Buranapur
village.
4. Brief facts of the case are that, the plaintiff is
the daughter of Gurappa through his first wife Satawwa
and defendant Nos1 and 2 are the children of Gurappa
through his second wife Bhagawwa. The suit property
bearing Sy.No.24/2 is the ancestral property of the original
propositus Gurappa and defendant Nos.1 and 2 behind the
back of the plaintiff had created the mutation entry
bearing ME.No.2588 entering the name of defendant No.1
to Sy.No.24/2 on the ground that the plaintiff and
defendant No.2 have relinquished their share in favour of
defendant No.1. It is the further contention that
Sy.No.24/2 is acquired by the Government of Karnataka
for establishment of Aerodrome and the lands are under
process of acquisition and contended that the plaintiff
along with defendant Nos.1 and 2 are entitled for 1/3 rd
share in the suit schedule property. During the pendency
of the suit, the plaintiff amended the plaint and included
Sy.No.112/1+2 measuring 5 acres 20 guntas and VPC
No.36/1, the house property contending that
Sy.No.112/1+2 was purchased jointly by the plaintiff and
defendant Nos.1 and 2 out of the nucleus of the joint
family for Rs.1,44,000/- under the registered sale deed
dated 06.03.1995 and the properties are the joint family
properties wherein the plaintiff is entitled for 1/3 rd share.
5. On service of notice, defendant No.1 appeared
and filed his written statement and additional written
statement. Defendant No.2 though served with the notice,
remained ex-parte. Defendant No.3 appeared, but did not
choose to file the written statement and as such, the
written statement of defendant No.3 has been taken as nil.
Defendant No. 4 appeared and filed his written statement.
6. Defendant No.1 contended that the suit of the
plaintiff is not maintainable, as the plaintiff and defendant
No.2 have given up their right, title and interest in the suit
property in favour of defendant No.1 and in lieu of the
relinquishment, a house property bearing VPC No.222 of
Buranapur village was given to the plaintiff. It is further
contended that in view of the relinquishment cum
partition, the plaintiff has given no objection to enter the
name of defendant No.1 in the revenue records and
accordingly ME.No.2588 has been effected. It is also
contended that the name of defendant No.1 appears in the
record of rights since 02.05.1992 and having been
unchallenged, the suit of the plaintiff filed in the year 2009
for partition is barred by limitation. It is further contended
by defendant No.1 that Sy.No.112/1+2 is the self-acquired
property of defendant No.1 having purchased the same
under registered sale deed out of the own earning and
from savings of the salary and as such contended that the
plaintiff has no right, title or interest over the suit
schedule property bearing Sy.No.112/1+2 and insofar as
VPC No.36/1, defendant No.1 states that he has
constructed building out of his own savings and as such
the plaintiff does not entitled for share in the house
property. It is further contended that Sy.No.112/1+2 being
a self-acquired property of defendant No.1, for legal
necessity he has sold 4 acres 3 guntas out of 9 acres 23
guntas in Sy.No.112/1+2 to one Sayabanna Gireppa
Khyatannavar under the registered sale deed dated
11.12.1996 and thus, contended that the plaintiff and
defendant No.2 are not entitled for any share in the said
property.
7. Defendant No.4 in his written statement
contended that the suit property bearing Sy.No.24/2 has
been acquired to establish Aerodrome at Bijapur and the
compensation as determined by the authority as per the
agreement dated 10.09.2008 is retained with defendant
No.4 and the same would be disbursed in accordance with
the order that would be passed in the suit. It is further
contended that the plaintiff has not issued notice to
defendant Nos.3 and 4 as required under Section 80 of the
Civil Procedure Code and the suit of the plaintiff is liable to
be dismissed for want of statutory notice.
8. On the basis of pleadings of the parties, the
Trial Court framed the following:
ISSUES
1. Whether plaintiff proves that land
Sy.No.24/2 and land Sy.No.112/1+2 and
house property VPC.No.36/1 of Buranapur
village are joint family properties of
plaintiff and defendants No-1
and 2?
2. Whether first defendant proves that his
father sold some land for the purpose of
marriage of plaintiff?
3. Whether first defendant proves that
plaintiff has got VPC.No.222 of Buranapur
village, which was given to her in partition?
4. Whether first defendant proves that land
Sy.No.112/1+2 is his self acquired
property and separate property of him?
5. Whether first defendant proves that
plaintiff and second defendant have
relinquished their right over land
Sy.No.24/2 and VPC.No.36/1 as contended
in written statement?
6. Whether first defendant proves that suit is
barred by limitation?
7. Whether plaintiff has got 1/3rd share in suit
property?
8. Whether suit is not maintainable against
defendants No-3 and 4 as contended in
written statement of defendant No-4?
9. Whether plaintiff is entitled for relief
sought?
10. What order or decree?
9. In order to substantiate her case, the plaintiff
got examined herself as PW.1 and one witness as PW.2
and got marked Exs.P1 to P27. The defendant No.1
examined himself as DW.1 and defendant No.2 examined
herself as DW.2 and one witness as DW.3 and got marked
Exs.D1 to D14.
10. The Trial Court, on considering the material on
record, partly decreed the suit of the plaintiff holding that,
the plaintiff is entitled to 1/3rd share in one half share of
her father i.e., 1/6th share in land bearing Sy.No.24/2 and
VPC No.36/1 and dismissed the suit of the plaintiff in
respect of Sy.No.112/1+2 of Buranapur village. Aggrieved
by non-granting of share in Sy.No.112/1+2 and granting
of notional share, the plaintiff has preferred RFA Crob
No.200001/2014 and aggrieved by granting of share to the
plaintiff in land bearing Sy.No.24/2 and VPC No.36/1 of
Buranapur village, defendant No.1 has preferred RFA
No.6061/2013.
11. We have heard the learned for the parties to
the lis.
12. Sri I.R. Biradar, learned counsel for the
appellant in RFA No.6061/2013/defendnat No.1 would
contend that allotting of share in Sy.No.24/2 and VPC 36/1
to the plaintiff and defendant No.2 is without considering
the evidence and material on record viz., Ex.D2, which
clearly establish the fact that the plaintiff and defendant
No.2 have relinquished their right over the suit schedule
property and in lieu of the share, the plaintiff was allotted
VPC No.222 and the Trial Court has erroneously held that
Ex.D2 relinquishment/partition deed requires registration.
It is also contended that Ex.D2-relinquishment/partition
deed was executed on 25.04.1992, wherein the plaintiff
and defendant No.2 are signatories to the said document
and this being so, the suit of the plaintiff is barred by
limitation as the name of defendant No.1 was entered way
back in the year 1992 on the basis of Ex.D2 and the same
being within the knowledge of the plaintiff, has not chosen
to challenge the same earlier. It is further contended that
the cross-objection filed by the plaintiff is not
maintainable, as the Trial Court, looking into the evidence
and material on record has rightly come to the conclusion
that the plaintiff is not entitled for share in
Sy.No.112/1+2, as defendant No.1 has acquired the suit
schedule property out of his earning.
13. In support of his contention, learned counsel
for the appellant/defendant No.1 relied upon the judgment
of the Hon'ble Apex Court in Civil Appeal No.6141/2021
in the case of Korukonda Chalapathi Rao & Anr. vs.
Korukonda Annapurna Sampath Kumar, dated
01.10.2021 contending that the document-Ex.D2 which is
a relinquishment/partition deed does not require
registration.
14. Per contra, Sri S.S. Mamadapur, learned
counsel for the cross-objector in RFA Crob
No.200001/2014/plaintiff would contend that non-granting
of share to the plaintiff in Sy.No.112/1+2 is without
considering the fact that the said property is purchased
jointly by the plaintiff and defendant Nos.1 and 2 out of
the joint family funds and the reasoning of the Trial court
that Sy.No.112/1+2 is the self acquired property of
defendant No.1 is without any material on record. He
would further contend that the quantification of shares
arrived at by the Trial Court on the basis of notional
partition is erroneous, without considering the provisions
of Section 6 of the Hindu Succession (Amendment) Act,
2005 which is applicable to the facts and circumstances of
the case. Insofar as the reasoning accorded by the Trial
Court on Ex.D2, he would justify and contend that it does
not require interference, as Ex.D2 is not proved in
accordance with law.
15. Having heard the learned counsel for the
parties and perused the material on record and taking into
consideration the rival contentions of the parties, the
following points would arise for consideration in this appeal
and cross-objection:
1. Whether the judgment and decree passed by
the Trial Court requires interference?
2. Whether the judgment and decree passed by
the Trial Court with regard to the quantification
of shares requires modification?
16. It is not in dispute that there are three
properties involved in the present case viz., Sy.No.24/2,
Sy.No.112/1+2 and VPC No.36/1 of Buranapur village.
According to the plaintiff, Sy.No.24/2 and VPC No.36/1 are
the ancestral properties of the plaintiff and the defendants
and the same is not disputed by defendant No.1. It is the
contention of defendant No.1 that the plaintiff has
relinquished her share in respect of the suit schedule
ancestral property by way of relinquishment-cum-partition
deed dated 25.04.1992 as per Ex.D2 and as such, the
plaintiff is not entitled for any share in Sy.No.24/2 and
VPC No.36/1.
17. Ex.D2 relied upon by defendant No.1 cannot be
acceptable for the following reasons:
i) Ex.D2, the alleged relinquishment-cum-
partition deed dated 25.04.1992 has not been
proved in accordance with law by examining
any of the witnesses to the said document;
ii) Except the self serving testimony of DW.1, no
other evidence is produced to prove the said
document;
iii) The said document has not been confronted to
PW.1 in the cross- examination, nor has she
admitted her signatures/LTM to the same;
iv) Ex.D2 has not even been identified or
spoken to by defendant No.2/DW.2 in her oral
evidence;
v) Except the mutation proceedings, there is no
reference to Ex.D2 in any other subsequent
transactions/document;
vi) The mutation proceedings as at Exs.D6, D7,
P1 and P2 also indicate that the khata was
mutated into the name of defendant No.1
on the basis of his self-serving statement;
vii) No statement was made by the plaintiff
before the revenue authorities for the purpose
of acting upon the alleged
relinquishment/partition deed prior to effecting
mutation;
viii) It is well settled that khata is not a
document of title and since the mutation was
effected in the name of defendant No.1 solely
on the basis of his request and without
recording the statement of the plaintiff, mere
mutation will not have the effect of proving the
relinquishment deed;
ix) So also, Ex.D2 is not a registered document; in
the light of the recitals in the said document
which indicate that the plaintiff and defendant
No.2 are said to have relinquished and given
up their claim in favour of defendant No.1 on
the very same day the document was
executed, in praesenti, the document
require compulsory registration under Section
17(2) of the Registration Act, since it is not a
record of past relinquishment/past partition;
x) No sufficient pleading with regard to family
arrangement or past partition or prior oral
partition is forthcoming in the written
statement of defendant No.1.
18. The judgment relied upon by the learned
counsel for the appellant/defendant No.1 in Korukonda
Chalapthi Rao & Anr. vs. Korukonda Annapurna
Sampath's case supra to hold that ExD2 is not required to
be registered is not applicable to the facts and
circumstances of the present case for the reasons stated
supra.
19. Insofar as the share in land bearing
Sy.No.112/1+2 is concerned, it is the contention of the
plaintiff that it is purchased jointly by the plaintiff and
defendant Nos.1 and 2 out of the joint family funds. In
order to substantiate her pleading that the said property
was acquired out of the joint family funds, the plaintiff has
not produced any material on record to show that the
family of the plaintiff and defendant Nos.1 and 2 had
sufficient income. On the contrary, defendant No.1 has
produced the sale deed which stands in the name of
defendant No.1 and also to the effect that he has borrowed
hand loan from DW.3. This being so, the Trial Court,
looking to the evidence of DW.1 and DW3 and the
documents produced by defendant No.1 as per Exs.D3 and
D4 has rightly come to the conclusion that defendant No.1
has acquired Sy.No.112/1+2 out of his own savings and
has proved that the said property is his self acquired
property.
20. For the reasons sated supra and looking into
the evidence and material on record and on perusal of the
judgment and decree of the Trial Court, we are of the
considered view that the judgment and decree passed by
the Trial Court does not call for any interference by this
Court, insofar as granting share to the plaintiff in
Sy.No.24/2 and VPC No.36/1 and the conclusion arrived at
by the Trial Court in holding that Sy.No.112/1+2 is the self
acquired property of defendant No.1 is just and proper. In
view of the same, we answer point No.1 in the negative.
21. The judgment and decree of the Trial Court to
the extent of quantification of shares requires interference
by this Court in view of the decision of the Hon'ble Apex
Court in Vineeta Sharma v. Rakesh Sharma and
others reported in AIR 2020 SC 3717 and the shares
granted to the plaintiff and defendant No.1 needs to be
modified by granting equal 1/3rd share each to the plaintiff
and defendant No.2 in Sy.No.24/2 and VPC No.36/1.
Accordingly, point No.2 is answered in the affirmative.
22. In the result, we pass the following:
ORDER
i. RFA No.6061/2013 filed by defendant No.1 is
hereby dismissed.
ii. RFA Crob No.200001/2014 filed by the plaintiff
is partly allowed.
iii. The plaintiff, defendant No.1 and defendant
No.2 are hereby declared as having 1/3rd
share each in the compensation awarded
towards acquisition of suit schedule property
bearing Sy.No.24/2 acquired by the KIADB.
iv. So also, the plaintiff, defendant No.1 and
defendant No.2 are declared as having 1/3rd
share each in suit schedule property bearing
VPC No.36/1.
v. The claim of the plaintiff for partition and
separate possession of land bearing
Sy.No.112/1+2 measuring 5 acres 20 guntas is
hereby rejected by declaring that the said land
bearing Sy.No.112/1+2 is the separate and
self-acquired property of defendant No.1.
vi. The City Civil Court, before whom the
compensation awarded in respect of
Sy.No.24/2 is deposited, is directed to
disburse 1/3rd share each of the said
compensation amount together with
accrued interest and benefits in favour of the
v plaintiff, defendant No.1 and defendant No.2
separately.
Sd/-
JUDGE
Sd/-
JUDGE
LG
