Kudithini Maggi Hanumanthappa vs Kudithini Maggi Kotramma
2022 Latest Caselaw 3552 Kant

     IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

         DATED THIS THE 3 R D DAY OF MARCH, 2022

                         BEFORE

         THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


          R.S.A. NO.5731/2013 (DEC & SEP. POSS.)

BETWEEN

KUDITHINI MAGGI HANUMANTHAPPA,
S/O. HANUMAPPA,
AGE: 53 YEARS,
OCC: AGRICULT URE,
R/O. KALLAHALLI VILLAGE,
IN H.B.HALLI TALUK
DIST: BELLARY
                                            ...APPELLANT
(BY SRI.H.R.GUNDAPPA &
SRI.MANJUNATH G. PATIL, ADVS.)


AND

1.     KUDITHINI MAGGI KOTRAMMA
       W/O. DEVENDRAPPA
       AGE: 51 YEARS,
       OCC: AGRICULT URE
       R/O. KALLAHALLI VILLAGE,
       H.B.HALLI TALUK,
       DIST: BELLARY.

2.     KUDITHINI MAGGI SHANTAMMA
       AGE: 31 YEARS,
       OCC: AGRICULT URE
       R/O. KALLAHALLI VILLAGE,
       IN H.B.HALLI TALUK,
       DIST: BELLARY
                                 2




     3.     HALAMMA
            W/O. ANINAPPA
            SINCE DECEASED BY HER LRS.

A.        MANJUNATHA
          S/O. ANJINAPPA
          AGE: 30 YEARS,

B.        LAKSHMI
          D/O. ANJINAPPA
          AGE: 30 YEARS,

C.        PREMA
          D/O. ANJINAPPA
          AGE: 24 YEARS,

          ALL ARE R/O. GAJAPURA VILLAGE
          TQ: KUDLI GI,
          DIST: BELLARY 583218
                                            ...RESPONDENTS

(BY SRI.LAXMAN T .MANTAGANI, ADV. FOR R1 & R2,
R3A T O R3C ARE SERVED)


     THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAI NST
THE JUDGEMENT & DECREE DATED 22.03.2013 PASSED IN R.A.
NO.44/2012 ON T HE FILE OF THE ADDL. SENIOR CIVI L JUDGE
AND JMFC., HOSPET, DISMISSING THE APPEAL BY CONFIRMING
THE JUDGMENT AND DECREE DATED 23.01.2012 PASSED IN
O.S. NO.96/2008 ON THE FILE OF THE CIVIL JUDGE AND
JMFC., AT HAGARI BOMMANAHALI, DECREEING THE SUIT FILED
FOR DECLARATION AND SEPARATE POSSESSION.


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

                           JUDGMENT

Challenging judgment and decree dated 22.03.2013

passed by Additional Senior Civil Judge & JMFC, Hospet

(for short, "first appellate Court") in R.A. No.44/2012,

dismissing appeal and confirming judgment and decree

dated 23.01.2012 passed by Civil Judge & JMFC,

Hagaribommanahalli (for short, "trial Court") in O.S.

No.96/2008, decreeing suit filed for partition and separate

possession, this Regular Second Appeal is filed.

2. Appellant herein was defendant no.1 before trial

court and appellant in first appeal. Respondents no.1 and

2 herein were plaintiffs no.1 and 2 before trial Court and

respondents no.1 and 2 in appeal. Respondent no.3 herein

was defendant no.2 in the suit and respondent no.3 in

appeal. For the sake of convenience, parties to this appeal

are referred to by their ranks before trial Court.

3. It is case of plaintiffs that he filed O.S.

no.96/2008 seeking for declaration that plaintiffs no.1 and

2 are entitled for 1/3 r d share each or any legal share in

respect of 'B' schedule property and for separate

possession thereof; and to appoint Court Commissioner

for division of 'B' schedule properties by metes and

bounds etc.

4. It was stated that 'B' schedule properties

originally belong to propositus Smt K. Shantavva, who

was having only one son by name Hanumappa. Said

Hanumappa had three sons viz., Devendrappa,

Hanumantappa and Anjineppa. Plaintiffs are wife and

daughter of Devendrappa; while Hanumantappa was

defendant no.1 and Halamma d/o Anjineppa was

defendant no.2. It was stated that after death of

Shantamma, 'B' schedule properties were inherited by

Hanumappa, who also died in the year 1985. Thereafter,

Anjineppa died in the year 1998. As 'B' schedule

properties were joint family properties, plaintiffs were in

peaceful possession and enjoyment of same. There was no

partition taken place between the parties. But, when they

demanded defendant no.1 for partition, they were denied

their share constraining him to file suit.

5. Upon service of suit summons, defendants

entered appearance. Defendant no.1 filed written

statement admitted genealogy and relation between

plaintiffs and defendants. But, he asserted that there was

prior partition between plaintiff no.1, father of defendant

no.2 (a) to 2(c) on 10.06.1984, wherein plaintiff no.1 had

given up share of her husband in lieu of discharge of

liabilities of her husband by executing document on stamp

paper. Thereafter, defendants discharged debts of

husband of plaintiff no.1 and also given eight goats and

one lamb to her. It was further stated that Devendrappa

had also executed an agreement and borrowed Rs.1,000/-

from one M.D.Ramanna in the year 1979, which was

cleared by defendant no.1 on 01.07.1985. Thereafter said

property came in possession of defendant no.2 and

Anjineppa. Thereafter there was partition between

defendant no.1 and defendant no.2 in the presence of

elders on 13.02.2003 and since then defendant was in

possession of suit properties. Defendant no.2 adopted

written statement filed by defendant no.1.

6. Based on pleadings, trial court framed following

issues:

1. Whether the plaintiffs prove that, the plaintiffs and defendants are members of joint family and that the plaintiffs are entitled 1/3 r d share each in schedule properties of the said joint family?

2. Whether the plaintiffs further prove that, there was no partition took place between the parties as such, they have got legal share in the suit schedule properties as alleged in the plaint?

3. Whether the defendants, prove that, there was a partition between first plaintiff and defendant No.1 and husband of 2nd defendant late. Anjinappa in the year 10.06.1984, and 1 s t plaintiff has given up her share in lieu of discharge of liabilities of her husband and she has executed document to that effect on a stamp paper, as alleged in written statement?

4. Whether the defendants prove that, there was a partition between first defendant and the 2 n d defendant on 13.02.2003, and they are in possession and enjoyment of the properties fallen to their share as per said partition as alleged in the written statement?

5. Whether plaintiffs are entitled for the relief of partition and separate possession as sought for?

6. What order or decree?

7. Thereafter, plaintiffs got themselves examined

as PW1 and PW3. They also examined an independent

witness as PW2. Exhibits P1 to P7 were marked. On behalf

of defendants, defendant no.1 was examined as DW1.

Four other witnesses were examined as DWs2 to DW5.

Exhibits to D1 to D6 were marked.

8. On consideration, trial court answered issue

nos.1, 2 and 5 in affirmative and issue nos.3 and 4 in

negative and issue no.6 by decreeing suit. Aggrieved

thereby, defendant no.1 filed appeal in R.A.No.44/2012 on

several grounds. It was contended that trial court failed to

consider oral and documentary evidence properly and not

framed proper issues. It was contended that trial court

failed to consider Ex.D1- partition deed executed between

Devendrappa and his brothers in terms of which, 'B'

schedule properties fell to his share. Without considering

same, trial court decreed the suit.

9. On above grounds, first appellate Court framed

following points for its consideration:

1. Whether the plaintiffs prove that, the plaintiffs and defendants are members of joint family and the plaintiffs are entitled 1/3 r d share each in schedule properties of the said joint family?

2. Whether the plaintiffs further prove that, there was no partition took place between the parties as such, they have

got legal share in the suit schedule properties as alleged in the plaint?

            3.     Whether the defendants prove that
                   there was a partition between first
                   plaintiff  and   defendant    No.1   and
                                nd
                   husband of 2    defendant late Anjinappa

in the year 10.06.1984 and 1 s t plaintiff has given up her share in lieu of discharge of liabilities of her husband and she has executed document to that effect on a stamp paper, as alleged in written statement?

4. Whether the defendants prove that, there was a partition between first defendant and the 2 n d defendant on 13.03.2003, and they are in possession and enjoyment of the properties fallen to their share as per said partition as alleged in the written statement?

5. Whether plaintiffs are entitled for the relief of partition and separate possession as sought for?

6. What order or Decree?"

10. On consideration, first appellate court answered

point Nos.1 and 2 in affirmative, point Nos.3 and 4 in

negative and point No.5 by dismissing the appeal.

Aggrieved thereby, this Regular Second Appeal is filed.

11. Sri H.R.Gundappa appearing along with

Sri Manjunath G. Patil, learned counsel for appellant

submitted that impugned judgment and decree passed by

both courts were illegal, contrary to law and evidence on

record. It was contended that both courts erred in holding

that 'B' schedule properties were ancestral properties.

Trial court erred in its conclusion that there was prior

partition between plaintiff, appellant and husband of

respondent no.3. It was contended that by executing an

agreement drawn on a stamp paper, plaintiff no.1 had

given up her share in lieu of discharge of liabilities of her

husband Devendrappa. Both courts erred in overlooking

evidence which established that debts of Devendrappa

were cleared. It was also contended that suit was barred

by limitation, which was ignored.

12. Learned counsel submitted that following

substantial questions of law would arise in this appeal:

1. Whether both courts erred in decreeing plaintiffs' suit ignoring evidence that plaintiff no.1 has given up her share in lieu of discharge of liabilities of her husband by executing document on stamp paper on 10.06.1984?

2. Whether both courts erred in decreeing plaintiffs' suit ignoring that plaintiffs' suit was barred by limitation?

3. Whether there is non-consideration of material oral and documentary evidence i.e.,Ex.D1 to D6?

13. On the other hand Sri Laxman T. Mantagani,

learned counsel for respondent supported impugned

judgment and opposed appeal. It was submitted that

instant appeal was filed challenging concurrent findings,

was devoid of merits, thus liable for dismissal.

14. Heard learned counsel for appellant. Perused

impugned judgment and decree and record.

15. From above submission, it is not in dispute that

plaintiffs and defendants are descendants of common

ancestor, propositus herein. It is also not in dispute that

'B' schedule properties were ancestral joint family

properties of propositus. It is also not in dispute that 'B'

schedule properties devolved upon Hanumappa. While

plaintiffs contended that Devendrappa being one of the

three sons of Hanumappa, entitled for 1/3 r d share in 'B'

schedule properties, defendants opposed claim on sole

ground that there was prior partition between

Devendrappa and his brothers, in the presence of elders

on 10.06.1984. It is their case that during partition

plaintiff no.1 executed an agreement on stamp paper

giving up share of her husband (Devendrappa) in lieu of

discharge of his liabilities and in pursuance of same,

defendants had cleared Devendrappa's debts. Apart from

same, plaintiff no.1 was also given eight goats and one

lamb. It is their case that prior oral partition was acted

upon and therefore, plaintiffs were not entitled for any

share in 'B' schedule properties.

16. Normally, in a suit for partition of joint family

properties, burden to prove existence of joint family and

joint family property lies on plaintiff. As defendants have

admitted these aspects, but opposing claim for partition

on the ground of prior partition, therefore, burden of

establishing same lies on defendants.

17. In order to establish prior partition, defendant

no.1 examined himself as DW.1 and reiterated contents of

written statement. In order to corroborate his evidence,

four other witnesses were examined. DW.2 in his

examination-in-chief supported defendants' case and

stated about assembly of elders on 10.06.1984 and

execution of agreement by plaintiff no.1. During cross-

examination, he admitted that there was no mention of

prior partition in his examination-in-chief. He admitted

that there was no partition.

18. DW.3 is scribe of agreement dated 10.06.1984.

He deposed that on 10.06.1984, he was asked to prepare

partition deed as per instructions given by plaintiff no.1 -

Kotramma and elders, those who had assembled there.

After preparing agreement, plaintiff no.1 affixed her left

hand thumb impression agreeing to relinquish share of her

husband in lieu of defendants' clearing off his debts. DW3

further stated that after contents were read over, plaintiff

no.1 affixed her thumb impression in his presence, which

he identified. He also deposed about plaintiff no.1 being

given eight goats and one lamb. During cross-

examination, it is elicited that partition deed was written

on stamp paper of the year 1982, purchased in the name

of Shankarswamy of Hanasi. It is also elicited that after

affixture of their signature, he signed as a witness. He

admits that he did not enquire about particulars of joint

family properties at that time.

19. DW4, one of the elders, who assembled for

effecting partition between plaintiffs and defendants. He

deposed that Devendrappa - husband of plaintiff no1 was

running a hotel independently. After his death, plaintiff

no.1, her father and other village elders assembled for

effecting partition. At that time, as plaintiff no.1 was

unable to clear debts of her husband, she relinquished

share of her husband in joint family properties in favour

of her brother-in-law and executed agreement on stamp

paper. In witness of said agreement, he along with other

elders signed same. But, during cross-examination, he

admits that there was no enquiry about entries in record

of rights or extent to lands assigned. He further admits

that there was no proposal for drawing share of

Anjineppa. He also admitted that there was no partition in

the family.

20. DW5, another village elder deposed that

Devendrappa was running a hotel and living separately.

For said purpose, he had taken loan from several persons.

After his death, his wife - plaintiff no.1 was unable to

continue on good terms with her brother-in-law ,

therefore, elders were assembled for effecting partition on

10.06.1984. As per agreement, partition deed was written

and signed by plaintiff no.1 giving up her share in favour

of her brother-in-law, in lieu of clearing of her husband's

debts. During cross-examination, he admits that total

amount of debt was about Rs.25,000/-. DW.5 also admits

Ex.D1 was written on stamp paper purchased in the name

of Shankarswamy Hanasi, during 1982. He stated that

stamp paper was brought by plaintiff herself.

21. A perusal of contents of Ex.D1 reveals that

Devendrappa died on 10 t h of May. About 7 years prior to

his death, partition was effected, since then plaintiff and

her husband were living separately. During those seven

years, Devendrappa incurred loss in money lending

business. In order to discharge this burden, plaintiff no.1

agreed to relinquish her interest in immovable properties

in favour of her brothers-in-law viz., Hanumanthappa and

Anjineppa on the condition that, they clear all debts of her

husband. In furtherance of Ex.D.1, defendants claim to

have cleared loan of Devendrappa and obtained

acknowledgement marked as Exs.D.2 and D.3. Ex.D.4 is

agreement dated 15.06.1979. Ex.D.6 is partition deed

executed between defendants no.1 and 2 on 13.02.2003.

22. Firstly, it is the case of defendants that there

was prior partition on 10.06.1984, wherein plaintiff no.1

executed relinquishment deed in favour of defendants

no.2 and 3. Though, defendant no.1 examined as DW1 and

DW.2 deposed to said effect, contents of Ex.D.1, however,

reveal that partition occurred 07 years prior and after

partition, Devendrappa and plaintiffs were residing

separately. There is contradiction as to date of partition.

Further, as per DW5, stamp paper for preparing partition

deed was brought by plaintiff, but admittedly, Ex.D.1 was

prepared on a stamp paper purchased in the name of

Shankaraswamy Hanasi, in the year 1982. There is no

demarcation of share of Devendrappa, Hanumathappa or

Anjineppa.

23. Further as on 10.06.1984, plaintiff no.2 was

already born. (Her age is shown as 26 years as on date of

suit i.e, 2003). In the absence of relinquishment by

plaintiff no.2, defendants' contention would fall short.

Apart from above, DW2 admits that there was no

partition. Though, scribe - DW3, states that he prepared

agreement, he does not state who brought stamp paper.

He admits that stamp papers were more than two years

old and purchased in the name of Shankarswamy of

Hanasi, but offers no explanation. DW5 states that stamp

paper was brought by plaintiff no.1. While DWs.3 to 5

deposed that Devendrappa was running a hotel and

incurred loss. As per contents of Ex.D1, Devendrappa was

doing money lending business. But, as per deposition of

PW.1 - Devendrappa was running a kirani shop. A

suggestion is put to PW1 that after separating from

defendant no.1, Devendrappa was running a hotel. It is

also suggested that he was doing commission business in

seeds and fertilizer, which contradicts with pleading in

written statement. Defendant no.1 has also sought to

contend that there was partition effected between him and

defendant no.2 on 13.02.2003 and produced partition

deed as Ex.D6.

24. On considering said evidence, trial court held

that defendants failed to prove prior partition and decreed

suit for 1/3 r d share in 'B' schedule properties. In view of

inconsistencies narrated above, findings of trial court

would be justified. While passing decree, trial court has

also taken note of fact that despite alleged

relinquishment, mutation entries continued in the name of

propositus and there was no explanation for not reporting

relinquishment to revenue authorities for mutation.

25. Though, a contention is urged that plaintiffs'

suit was barred by limitation, on perusal of written

statement by defendants, it is seen that no specific plea

regarding limitation was urged before trial court. No issue

was framed. Even in appeal, no ground regarding

limitation is urged. First appellate court has not raised

any point regarding limitation.

26. Upon re-appreciation of entire oral and

documentary evidence, first appellate court affirmed

findings of trial court. This appeal is against concurrent

finding of fact regarding prior partition with due reference

to evidence on record. None of above proposed substantial

questions of law arise for consideration.

In the result, I pass following:

ORDER

Appeal is dismissed.

Sd/-

JUDGE

K GK / PS G