Karnataka High Court
Chambanna S/O Balappa Kadakol vs Shivappa S/O Balappa Kadakol on 2 June, 2022
Bench: K.S.Mudagal, M.G.S. Kamal
-1-
RFA No. 100201 of 2014
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 02ND DAY OF JUNE, 2022
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR FIRST APPEAL NO. 100201 OF 2014 (PAR/POS-)
BETWEEN:
1. CHAMBANNA S/O BALAPPA KADAKOL
AGE: 82 YEARS,
OCC: AGRICULTURE,
R/O.YAKKUNDI, TQ: SAUNDATTI,
DIST: BELGAUM-5901102
... APPELLANT
(BY SRI. AVINASH BANAKAR, ADVOCATE)
AND:
1. SHIVAPPA S/O BALAPPA KADAKOL
SINCE DECEASED BY HIS LRS.
Digitally signed 1(a) SMT.KAMALAVVA W/O SHIVAPPA KADAKOL,
by J MAMATHA
J
Location: High
Court of
AGE: 73 YEARS, OCC: HOUSEHOLD WORK,
MAMATHA
Karnataka,
Dharwad Bench
Dharwad.
R/O. YAKKUNDI, TQ: SAUNDATTI,
Date: 2022.06.15
14:53:29 +0530 DIST: BELGAUM-5901102
1(b) MALLAPPA @ MALLESHAPPA
S/O SHIVAPPA KADAKOL
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O. YAKKUNDI, TQ: SAUNDATTI,
DIST: BELGAUM-5901102
1(c) SMT.SUMITRA W/O ROMANNA RAMADURG
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
-2-
RFA No. 100201 of 2014
R/O. KERUR, TQ: BADAMI, DIST: BAGALKOT-587101
1(d) JAYASHREE W/O NAGESH GANJI
AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
R/O. ILKAL, TQ: HUNAGUND, DIST: BAGALKOT
1(e). SAVITRI W/O HANAMANT PARISHWAD
AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
R/O. RAMDEV GALLI, M-VADAGAON, BELGAUM
TQ and DIST: BELGAUM
1(f) HEMALATA W/O VISHWANATH GARAGAD
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
R/O. MANAGUTTI, TQ: HUKKERI,
BELGAUM-5901102
1(g) BASAVARAJ S/O SHIVAPPA KADAKOL
AGE: 40 YEARS, OCC: DOCTOR BDS MDS,
SERVING IN BELLARY GOVT, DENTAL COLLEGE
R/O. YAKKUNDI, TQ: SAUNDATTI,
DIST: BELGAUM-5901102
1(h) MANJUNATH W/O SHIVAPPA KADAKOL
AGE: 37 YEARS, OCC: MBBS, MD
SERVING IN YASHOMATI HOSPITAL,
BANGALORE, R/O. YAKKUNDI,
TQ: SAUNDATTI,
DIST: BELGAUM-5901102
...RESPONDENTS
(BY SRI. SHIVARAJ BALLOLI, ADVOCATE FOR R1 (a to h)
THIS RFA FILED UNDER SECTION 96 OF THE CODE OF
CIVIL PROCEDURE READ WITH ORDER 41 R/W. SEC. 96 OF
CPC., AGAINST THE JUDGMENT AND DECREE
DTD:27.09.2014 PASSED IN O.S.NO.93/2011 ON THE FILE OF
THE SENIOR CIVIL JUDGE, SAUNDATTI, PARTLY DECREEING
THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
-3-
RFA No. 100201 of 2014
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the judgment and decree in
O.S.No.93/2011 passed by the Senior Civil Judge, Saundatti,
the defendant in the said suit has preferred this appeal. By the
impugned judgment and decree, the trial Court has decreed the
suit of Shivappa/respondent herein for partition and separate
possession of his 1/3rd share in suit schedule 'A' and 'B'
properties.
2. Respondent No.1/Shivappa filed the said suit
against the appellant for declaration that the Will dated
24.12.2008 set up by the appellant/Chambanna is null and void
and not binding on them and for partition and separate
possession of his half share in the suit schedule property.
Pending the suit, Shivappa died and respondents 1 (a) to 1 (h),
his wife and children were brought on record as his legal
representatives and they continued the suit.
RFA No. 100201 of 2014
3. For the purpose of convenience, parties will be
referred to henceforth according to the ranks before the trial
Court.
4. Some of the admitted facts of the case are as
follows:
One Balappa, was the propositus of the family. His first
son was Somalingappa, defendant Chambanna was the second
son and plaintiff Shivappa was the third son. Balappa died on
19.04.1967. Somalingappa had a wife and a daughter. Both of
them predeceased him. Somalingappa died on 10.09.2009
leaving behind him the plaintiff and defendant as the only
surviving legal heirs. The family of Balappa belonged to
Yekkundi village of Saundatti taluk, Belagavi District. Balappa
owned land bearing Sy.No.65 measuring 6 acres (plaint 'A'
schedule property) and houses in Yekkundi village. The family
owned another agricultural land bearing R.S.No.15 of Kusalapur
village measuring 4 acres. The houses and the land bearing
Sy.No.15 were acquired by the Government of Karnataka in
1968 for the purpose of Malaprabha Reservoir Project. In lieu
of such acquisition, the government allotted the plots bearing
RFA No. 100201 of 2014
V.P.C.Nos.489, 490 and 491 i.e., plaint schedule 'C' properties
to Somalingappa, plaintiff and defendant separately. In lieu of
acquisition of R.S.No.15, government granted compensation of
Rs.30,000/- to the family of Balappa. Out of that
compensation, the plaintiff, defendant and Somalingappa
purchased land bearing Sy.No.11 measuring 6 acres situated in
Uppinabetageri village limits in the year 1971. They sold that
land in 1978. On 22.06.1978, plaint schedule 'B' property i.e.,
the land bearing Sy.No.82/2 measuring 4 acres situated within
the limits of Dhupadal village was purchased and the said sale
deeds stood in the name of Somalingappa. On the death of
Somalingappa, the defendant got his name entered in plaint
schedule 'B' property on the ground that on 24.02.2008
Somalingappa has executed a registered Will in his favour. The
plaintiff challenged the said mutation entries denying the Will
set up by the defendant.
After initiating revenue dispute, he filed O.S.No.93/11
before the trial Court as aforesaid. His case in brief is as
follows:
RFA No. 100201 of 2014
That after the death of Balappa, himself, defendant and
Somalingappa constituted the Hindu Joint Family. Due to his
government employment, he used to stay away from the family
house and reside wherever he was transferred. Somalingappa
was managing the affairs of the family as he was the elder son.
On sale of land bearing Sy.No.11, plaint schedule 'B' property
i.e., Sy.No.82/2 was purchased in the name of Somalingappa
but the said purchase was for the benefit of all joint family
members. They were all in joint possession and enjoyment of
the suit properties. Somalingappa due to his old age and age
related ailments was not in a position to execute any Will.
Moreover, he could not bequeath the share of the plaintiff in
plaint schedule properties. Therefore, the said Will does not
bind him. Since plaintiff and defendant were the only surviving
heirs of Somalingappa, on his death both of them are entitled
to equal half share. Thus, he sought declaration that the Will
dated 24.12.2008 is null and void and does not bind him and
for partition and separate possession of 'B' suit schedule
property.
5. Defence of the defendant in brief was as follows:
RFA No. 100201 of 2014
The relationship between the parties and plaint schedule
'A' property and Sy.No.11 being the joint family property was
admitted. After sale of Sy.No.11, there was a partition
between the brothers in the said sale proceedings.
Somalingappa purchased Sy.No.82/2 exclusively out of his
share of compensation. Therefore, that was his self-acquired
property. Plaint schedule 'C' plots were independently allotted
to plaintiff, defendant and Somalingappa. Therefore, they were
the absolute owners of the sites allotted to them. Site No.491
was allotted to Somalingappa and he had constructed the
house on that. Site No.489 was allotted to the defendant and
site No.490 was allotted to the plaintiff. Defendant and
Somalingappa constructed houses on the sites allotted to them
and plaintiff has left the site vacant. After the partition on sale
of Sy.No.11, the parties are living separately. Since
Somalingappa had no wife and children, the defendant took
care of him and he was living with him. Therefore, out of love
and affection, he executed a registered Will dated 24.12.2008
out of his free will bequeathing Sy.No.82/2 and site No.491. In
the Will, through an inadvertence, the site number is wrongly
mentioned as 419. The suit is not properly valued and the
RFA No. 100201 of 2014
court fee paid is insufficient. Thus, he sought for dismissal of
the suit.
6. On the basis of such pleadings, the trial Court
framed the following issues:
i) Whether the plaintiff proves that suit schedule
properties are joint family properties of plaintiff and
defendant?
ii) Whether the plaintiff proves that he is in joint
possession and enjoyment of suit schedule
properties along with defendant?
iii) Whether the plaintiff proves that the 'Will deed'
dated 24.12.2008 is null and void and not binding
on the plaintiff?
iv) Whether the plaintiff is entitled for a share in all the
suit properties?
v) Whether the suit of the plaintiff is not properly
valued for the purpose of Court fee and Court fee
paid is insufficient?
vi) Whether defendant proves that suit schedule B and
VPC No.491 properties are self acquired properties
of deceased Somalingappa?
RFA No. 100201 of 2014
vii) Whether the plaintiff is entitled for ½ share in all
the suit properties?
viii) What decree/order?
7. Issue No.5 with regard valuation of the suit for the
purpose of Court fee and the Court fee payable on that was
treated as preliminary issue. The trial Court by order dated
10.01.2013 held that the plaintiff has to value the suit with
respect to relief for declaration of the Will as per Section 38 of
the Karnataka Court Fees and Suits Valuation Act and pay the
court fee accordingly. The plaintiff accordingly filed a fresh
valuation slip and paid the court fee which was accepted on
25.06.2013.
8. In support of his case, the plaintiff got examined
PWs-1 to 4 and got marked Ex.P.1 to Ex.P.20. The defendant
got examined DWs-1 to 5 and got marked Ex.D.1 to Ex.D.29.
The trial Court after hearing the parties, by the impugned
judgment and decree upheld the validity of the Will set up by
the defendant. But, the trial Court rejected the contention of
the defendant that Sy.No.82/2 was the exclusive property of
Somalingappa in the partition set up by the defendant.
- 10 -
RFA No. 100201 of 2014
However, the trial Court held that Somalingappa was entitled to
execute a Will in respect of his share only.
9. So far as plaint schedule 'C' property, the trial Court
held that the parties are entitled to those sites according to the
allotment made to them and Somalingappa was entitled to
bequeath his site i.e., V.P.C.No.491. Aggrieved by the said
judgment and decree, the defendant has preferred the above
appeal.
10. The submissions of Shri Avinash Banakar,
learned counsel for the appellant:
i) that the trial Court has failed to appreciate the
evidence on record properly with regard to the
partition,
ii) the trial Court overlooked the admission of PW-3
that Sy.No.82/2 was self-acquired property of
Somalingappa,
iii) the plaintiff was not residing with the defendant and
Somalingappa, that itself shows that there was
partition after the sale of land bearing Sy.No.11,
- 11 -
RFA No. 100201 of 2014
iv) the plaintiff had not questioned the mutation
entries standing in the name of Somalingappa.
That goes to show that there was already a
partition and the property was the exclusive
property of Somalingappa. Therefore, the
impugned judgment and decree awarding share to
the plaintiff needs to be set aside.
11. The submissions of Shri Shivaraj Ballolli,
learned counsel for respondents:
i) that except the self-serving evidence of the
defendant, absolutely there was no material to
show that after the sale of land bearing Sy.No.11,
there was a partition between the brothers in the
sale proceeds and only the sale proceed allegedly
taken by Somalingappa was utilized for purchasing
Sy.No.82/2,
ii) the defendant's own documents Ex.D.27 and
Ex.D.28 show that in the year 2005, all the three
brothers borrowed loan mortgaging Sy.No.82/2 to
Axis Bank executing joint mortgage deed in favour
- 12 -
RFA No. 100201 of 2014
of the bank. Therefore, theory of partition and
exclusive possession of Sy.No.82/2 was rightly
rejected by the trial Court,
iii) the defendant himself admitted that they were
cultivating the share of the plaintiff in the suit
schedule 'A' property that shows joint possession.
iv) the trial Court rightly held that mere fact of plaintiff
staying away from the family house on account of
his employment itself does not amount to ouster or
enjoyment of the properties as a divided family
members. Absolutely, there are no grounds to
interfere with the judgment and decree of the trial
Court.
12. Having regard to the rival submissions and the
material on record, the question that arises for consideration is:
"Whether the trial Court was justified in
rejecting the claim of the defendant that
Sy.No.82/2 was the self-acquired property of
Somalingappa?"
- 13 -
RFA No. 100201 of 2014
13. As already pointed out, even the defendant
admitted that plaint schedule 'A' property i.e., Sy.No.65 was a
joint family property. He also admitted that family owned
another land bearing Sy.No.15 and 2 houses in Yakkundi village
and they were submerged in Malaprabha project. He also
admitted that out of the compensation paid to Sy.No.15, all the
brothers together purchased Sy.No.11 measuring 6 acres in
Uppinabetageri village and schedule 'C' property namely
V.P.C.No.489 was allotted to him and V.P.C.No.490 was
allotted to the plaintiff and V.P.C.No.491 was allotted to
Somalingappa. It is also admitted that out of the compensation
amount, Sy.No.11 of Uppinabetageri village was purchased.
His only contention is that after sale of Sy.No.11, the brothers
divided the sale proceeds and Somalingappa purchased plaint
schedule 'B' property out of his share of sale proceeds and
therefore, that was his absolute property. Whereas plaintiff
claimed that the said property was purchased out of the sale
proceeds of Sy.No.11. Therefore, that is also the joint family
property and the sale deed stood in the name of Somalingappa
only because he was the manager of the family.
- 14 -
RFA No. 100201 of 2014
14. As admitted by the plaintiff, Somalingappa was also
entitled to 1/3rd share in plaint 'A' and 'B' properties. There is
no dispute that Somalingappa died leaving behind him only the
plaintiff and the defendant as his sole surviving legal
representatives. The trial Court upheld the execution of the
Will by Somalingappa and bequeath under the Will in favour of
the defendant only so far as it relates to his 1/3rd share in those
properties. The plaintiff has not challenged the said part of the
decree either by filing appeal or by way of cross objections in
this regard. Therefore, the said finding attained finality.
Therefore, the only question is whether Sy.No.65/5 i.e., plaint
schedule 'B' was the self-acquired property of Somalingappa?.
15. As rightly pointed out by the trial Court, amongst
Hindus, the presumption is that the family is joint. Even
according to the defendant, the family continued to be joint in
respect of Sy.No.65 i.e., plaint schedule 'A' property.
Therefore, the burden is on the defendant to prove that there
was a division in the sale proceeds of Sy.No.11 and plaintiff and
himself had taken away their share of the sale proceeds.
Absolutely, no evidence was adduced to show that the sale
- 15 -
RFA No. 100201 of 2014
proceeds of Sy.No.11 was partitioned between plaintiff,
defendant and Somalingappa.
16. Admittedly, Somalingappa was the elder member of
the family. The presumption is that he was the manager. That
was not disputed also. The plaintiff had joined the services
long back and he was residing at the places wherever he was
transferred. If Sy.No.82/2 was the absolute property of
Somalingappa that should have been enjoyed as such by him.
The property was purchased on 22.06.1978.
17. Defendant did not enter the witness box to speak
about the partition prior to 21.06.1978. His son was examined
as DW-1. He sets up another theory that there was a partition
in the family in the year 1968 itself as against the pleading of
the defendant that partition took place after sale of Sy.No.11
and it was the sale deed dated 22.06.1978. Again he admits
that the submerging of the land in Yekkundi village itself was in
1971. Therefore, his statement that there was a partition in
1968 is falsified by his own evidence.
18. DW-1 admits that the government gave the
compensation in respect of Kusalapura land jointly to the
- 16 -
RFA No. 100201 of 2014
owners. The mutation register extract, the defendant's own
document shows that plaintiff, defendant and Somalingappa
executed the joint mortgage deed dated 30.01.2000 in respect
of Sy.Nos.82/2 and 65 by availing loan of Rs.30,000/- from
M.G.Bank, Yekkundi. Further, DW-1 in his cross-examination
at paragraph 9 admits the execution of the mortgage deed as
reflected in Ex.D.11 jointly by all the 3 brothers.
19. Ex.P.19, is the copy of the mortgage deed dated
20.04.2005 executed by plaintiff, defendant and Somalingappa
in favour of UTI Bank in respect of Sy.No.82/2, a security for
the loan borrowed by them. The said document is dated
20.04.2005. DW-1 in his cross-examination unequivocally
admits that document and the transaction under the said
document. If really, there was a division and Somalingappa
purchased Sy.No.82/2 out of his share of the compensation
amount before the year 1978, why in the year 2000 and in the
year 2005 all the brothers together executed mortgage deeds
was not explained by the defendant. Considering all such
circumstances, the trial Court rightly rejected the claim of
partial partition and absolute ownership of Somalingappa in
respect of Sy.No.82/2. This Court does not find any grounds to
- 17 -
RFA No. 100201 of 2014
interfere with the judgment and decree of the trial Court.
Therefore following:
ORDER
The appeal is dismissed.
Having regard to the relationship of the parties, no order
as to costs.
Pending interlocutory applications stood disposed off.
(Sd/-)
JUDGE
(Sd/-)
JUDGE
Jm/-
