Karnataka High Court
Yallawwa W/O. Dyamappa Heggeri vs Shettavva W/O. Kariyappa ... on 4 July, 2022
Bench: E.S.Indireshpresided Byesij
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RSA No. 100322 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 04TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100322 OF 2014 (PAR)
BETWEEN:
1. YALLAWWA W/O. DYAMAPPA HEGGERI
AGE: 65 YEARS,
OCC: HOUSEHOLD WORK
R/O. RAMAPUR,
TQ and DIST: DHARWAD-580 007.
2. MUDAKAPPA S/O. DYAMAPPA HEGGERI
AGE: 40 YEARS,
OCC: AGRICULTURE
R/O. RAMAPUR,
TQ: and DIST: DHARWAD-580 007.
3. CHANDRAPPA S/O. DYAMAPPA HEGGERI
AGE: 46 YEARS,
OCC: AGRICULTURE
R/O. RAMAPUR,
TQ: and DIST: DHARWAD-580 007.
4. KAMALAVVA W/O. RAMAPPA DASANNAVAR
AGE: 39 YEARS,
OCC: HOUSEHOLD WORK
R/O. KARIKATTI, TQ: SAVADATTI,
NOW AT RAMAPUR,
TQ: and DIST: DHARWAD-580 007.
...APPELLANTS
(BY SRI. BAHUBALI N KANABARGI, ADVOCATE)
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RSA No. 100322 of 2014
AND:
1. SHETTAVVA
W/O. KARIYAPPA MUTTALAMURI
5AGE: 54 YEARS,
OCC: HOUSEHOLD WORK
RAMAPUR,
TQ and DIST: DHARWAD-580 007.
2. BASAPPA
S/O. BHEEMAPPA HEGGERI
AGE: 60 YEARS,
OCC: AGRICULTURE
R/O. RAMAPUR,
TQ and DIST: DHARWAD-580 007.
3. BASAVVA
W/O. DODDAPPA DOLLIN
AGE: 53 YEARS,
OCC: HOUSEHOLD WORK
R/O. RAMAPUR,
TQ and DIST: DHARWAD-580 007.
...RESPONDENTS
(BY SRI. HARISH S MAIGUR, ADVOCATE FOR R1)
THIS RSA FILED UNDER SECTIONI 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 26.03.2014 PASSED IN
RA NO.116 OF 2013 ON THE FILE FO THE PRINCIPAL SENIOR
CIVIL JUDGE AND CJM, DHARWAD DISMISSING THE APPEAL
FILED GAINST THE JUDGMENT AND DECREE DATED
22.07.2013 AND THE DECREE PASSED IN OS NO.589 OF 2009
ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC,
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RSA No. 100322 of 2014
DHARWAD DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular Second Appeal is filed by defendants 3 to 6,
challenging the Judgment and Decree dated 26th March, 2014
passed in RA No.116 of 2013 on the file of the Principal Senior
Civil Judge and CJM, Dharwad, confirming the Judgment and
Decree dated 22nd July, 2013 in OS No.589 of 2009 on the file
of the First Additional Civil Judge and JMFC, Dharwad decreeing
the suit of the plaintiff.
2. For the sake of convenience, the parties in this
appeal are referred to with their status and rank before the trial
Court.
3. It is the case of the plaintiff that father of the
plaintiff-Bheemappa had four children viz. Dyamappa, Basappa
(Defendant No.1), Shettavva (plaintiff) and Basavva (defendant
No.2). Dyamappa died leaving behind his wife-Yellavva
(defendant No.3), and children viz. Mudakappa (defendant
No.4), Chandrappa (defendant No.5) and Kamalavva
RSA No. 100322 of 2014
(defendant No.6). It is the case of the plaintiff that suit
properties are the joint family properties of plaintiffs and
defendants and no partition had taken place in the family of the
plaintiffs and defendants and as such, the plaintiff made a claim
with regard to her share in the suit schedule property and same
was denied by the defendant No.1 based on Apsat Watni
document and therefore, the plaintiff filed Original Suit No.589
of 2009 before the trial Court seeking partition and separate
possession in respect of the suit schedule property.
4. On service of notice, defendants entered
appearance and filed detailed written statement denying the
averments made in the plaint. It is the specific case of
defendant No.1 that the plaintiff has relinquished her right in
favour of defendants by way of kabuli vardi (consent) and
therefore, the plaintiff has no right insofar of the suit schedule
property. On the basis of pleadings, the trial Court has framed
issued for its consideration. In order to prove their case,
plaintiff was examined as PW1 and got marked 3 documents as
per Exhibits P1 to P3. On the other hand, defendant No.4 was
examined as DW1 and produced eight documents and same
were marked as Exhibits D1 to D8. The trial Court, after
RSA No. 100322 of 2014
considering the material on record, by its Judgment and Decree
dated 22nd July, 2013 decreed the suit holding that the plaintiff
is entitled for one-fourth share in the suit schedule property.
Feeling aggrieved by the same, the contesting defendants have
filed Regular Appeal No.116 of 2013 and same was resisted by
the plaintiff. The First Appellate Court, after considering the
material on record, by its Judgment and Decree dated 26th
March, 2014, dismissed the appeal, consequently, the
Judgment and Decree passed in Original Suit No.589 of 2009
was confirmed. Feeling aggrieved by the same, defendants
have preferred this second appeal.
5. This court, by order 02nd August, 2017 formulated
the following substantial question of law:
"Whether both the Courts below have
committed an error in law in granting equal share to
the plaintiff in spite of the fact that the propositus
died long before commencement of Central
amendment brought to Hindu Succession Act in the
year 2005?"
RSA No. 100322 of 2014
6. Heard Sri Bahubali N Kanabargi, learned Counsel
appearing for the appellant and Sri Harish S. Maigur, learned
Counsel appearing for the respondent.
7. Sri Bahubali N. Kanabargi, Learned counsel
appearing for the appellant, drew the attention of the Court to
Exhibit D7 and argued that the plaintiff had given kabuli vardi
(consent) relinquishing her right in respect of the suit schedule
properties and therefore, both the Courts below have
considered the said fact in the right perspective.
8. Per contra, Sri Harish S. Maigur, learned counsel
appearing for the respondents sought to justify the impugned
Judgment and Decree passed by the courts below and argued
that the relinquishment deed requires to be compulsorily
registered and therefore, sought to justify the impugned
judgments passed by the Courts below.
9. In the light of the submissions made by the learned
counsel appearing for the parties, I have carefully examined
the finding recorded by the courts below. For easy reference,
the following pedigree is relevant to understand the relationship
between the parties:
RSA No. 100322 of 2014
Bheemappa (dead)
Savakka (dead)
Dyamappa (dead) Basappa Shettavva Basavva
(dft-1) (plaintiff) (dft-2)
Yallavva (wife)
(dft No.3)
Mudukappa Chandrappa Kamalavva
(dft.4) (dft.5) (dft.6)
10. I have carefully considered the substantial question
of law framed in this appeal. In view of the amendment to
Section 6 of the Hindu Succession Act, 1956, so also, in view of
the law declared by the Hon'ble Apex Court in the case of
VINEETHA SHARMA v. RAKESH SHARMA reported in AIR 2020
SC 3717, the substantial question of law may not arise for
consideration to answer the issue involved in the matter.
Perusal of the aforementioned genealogical tree would indicate
that, both original propositus-Bheemappa and his wife
Savakka, died leaving behind four children viz. plaintiff,
defendants 1 and 2 and their first son-Dyamappa. The said
Dyamappa died leaving behind his wife and children (defendant
3 to 6). Perusal of the record would indicate that the suit
RSA No. 100322 of 2014
schedule property are the ancestral properties of the parties to
the lis and there is no partition between the parties. The main
contention urged by the learned counsel appearing for the
appellant is based on the kabuli vardi (consent) as per Exhibit
D7. Undisputably, Exhibit D7 is an unregistered document and
as per law, the relinquish deed/release deed is compulsorily a
registerable document and in that view of the matter, by mere
relying upon the kabuli vardi (consent), appellants cannot make
out a case on absolute ownership of the suit schedule property.
In that view of the matter, as both the courts below have
concurrently held that the plaintiff is entitled for one-fourth
share in the suit schedule property and the said finding is based
on the material on record, I do not find any material illegality in
the impugned Judgment and Decree passed by the courts
below. In the result, the appeal fails and accordingly, stands
dismissed.
Sd/-
JUDGE
LN
