Karnataka High Court

Girija W/O Shivanangouda Patil vs Ramanagouda S/O Basangouda Patil on 3 March, 2022

Bench: H.T.Narendra Prasad, Rajendra Badamikar

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

          DATED THIS THE 3rd DAY OF MARCH 2022

                          PRESENT

     THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD

                             AND

     THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

          REGULAR FIRST APPEAL No.100194/2015


BETWEEN:

1.   GIRIJA W/O SHIVANANGOUDA PATIL
     AGE: 51 YRS, OCC : H/W
     R/O : NEAR GANESH TEMPLE SABDE GALLI
     JAMAKHANDI, DIST : BAGLAKOT-587101

2.   SUJATA W/O PRAVEEN KOKATANUR
     AGE 28 YRS., OCC : H/W
     R/O : C/O : A.B.PATIL
     BASAV NAGAR NILAY HOUSE
     MAHANTESH NAGAR BELAGAVI
     DIST : BELAGAVI-590001

3.   SHEETAL W/O ANAND BUDIHAL
     AGE: 26 YRS, OCC : H/E AND AGRICULTURE
     R/O : SABDEGALLI NEAR GANESH TEMPLE
     JAMAKHANDI, DIST: BAGALKOT-587101

4.   MALLANGOUDA S/O BASANAGOUDA PATIL
     AGE: 54 YRS, OCC : AGRICULTURE,
     R/O : HUDED GALLI
     BAILHONGAL, DIST : BELAGAVI-590001
                                          .. APPELLANTS
(BY SRI. SHIVARAJ S. BALLOLLI, ADV.)
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AND:

1.   RAMANAGOUDA S/O BASANGOUDA PATIL
     AGE: 57 YRS., OCC AGRICULTURE,
     R/O KATTI ONI, TQ SAUNDATTI
     DIST BELAGAVI-590001.

2.   CHINNAWWA W/O BASANAGOUDA PATIL
     AGE:79 YRS., OCC: AGRICULTURE,
     R/O : KATTI ONI,
     TQ : SAUNDATTI, DIST : BELAGAVI-590001

3.   SATISH S/O RAMANGOUDA PATIL
     AGE: 29 YRS, OCC: AGRICULTURE,
     R/O : KATTI ONI, TQ : SAUNDATTI
     DIST : BELAGAVI-590001

4.   JAYASHRI W/O PATREPPA KABBUR
     AGE 53 UYRS.,OCC: H/W,
     R/O : YARAJARVI, TQ : SAUNDATTI
     DIST : BELAGAVI-590001

5.   SHANTALA W/O KASHINATH BHAIRNATTI
     AGE 51 YRS, OCC : H/W
     R/O : C/O : DR.KASHINATH BAIRNATTI
     151/161 MYSORE ROAD,
     SOUBHAGYA NURSING HOME
     OPPOSITE AZAD PARK, BANGALURU-01

6.   MAHADEVI W/O PRAKSH RAMAPUR
     AGE 49 YRS, OCC : H/W
     R/O : JAGIJYOTI LAYPUT MARIYAPPA PALYA
     BANGALURU-1
                                         .. RESPONDENTS
(BY SRI. SUNIL S. DESAI, ADV. FOR R1 AND R2.
SRI. SANTOSH B. MANE, ADV. FOR R3.
SRI. M.V. HIREMATH, ADV. FOR R4 TO R6.)


     THIS RFA FILED UNDER ORDER 41 RULE 1 R/W. SEC. 96 OF
CPC, AGAINST THE JUDGMENT AND DECREE DTD:20.06.2015
PASSED IN O.S.NO.56/2014 ON THE FILE OF THE SENIOR CIVIL
JUDGE AT SAUNDATTI, PARTLY DECREEING THE SUIT FILED FOR
PARTITION        AND        SEPARATE         POSSESSION.
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     THIS RFA COMING ON FOR FINAL HEARING, THIS DAY,
H.T.NARENDRA PRASAD, J., DELIVERED THE FOLLOWING:

                         JUDGMENT

This regular first appeal is filed under Section 96 of the

Code of Civil Procedure, 1908 (hereinafter for brevity referred

to as 'CPC') by the plaintiffs challenging the judgment and

decree dated 20.06.2015 passed by the learned Senior Civil

Judge, Saundatti (hereinafter for brevity referred to as 'trial

Court') in O.S. No.56/2014.

2. For convenience, the parties are referred to as

per their ranking before the trial Court.

3. Brief facts of the case are that, the plaintiffs

have filed a suit for declaration to declare that the gift deed

dated 02.09.2011 executed by defendant No.2 in favour of

defendant No.3 is not binding on the share of the plaintiffs

and for a partition and separate possession in respect of

'ABC' schedule properties. The further case of the plaintiffs

is that, the original propositus by name Basanagouda son

of Honagouda Patil expired on 28.07.1990 leaving behind

his wife (defendant No.2) and three sons being plaintiff

No.4, defendant No.1 and one Shivanagouda and three

daughters being defendant Nos.4 to 6. The eldest son by

name Shivanagouda expired on 16.09.2011 leaving behind

his wife and two daughters i.e. plaintiff Nos.1 to 3. It is

further case of the plaintiffs that, agricultural property

shown at Schedule 'A' are tenanted properties cultivated by

Basanagouda Honagouda Patil. Under the Karnataka Land

Reforms Act, the occupancy rights had been granted in his

favour. Since the plaintiffs have got their right in the suit

schedule properties, they have filed a suit.

entered their appearance through their counsel. In spite of

availing sufficient opportunities, they have not chosen to

file any written statement.

In spite of service of summons, defendant Nos.4 to 6

remained absent and they are placed exparte.

5. On the basis of the pleadings of the parties, the

trial Court has framed the following issue:

"Does the plaintiffs entitled to the suit relief?"

6. To prove their case, the plaintiffs have

examined one Mallanagouda Basanagouda Patil as PW-1

and got marked 16 documents from Exs.P-1 to P-16. The

defendants have neither examined any witness nor marked

any documents.

7. On appreciation of the oral and documentary

evidence on record, the trial Court has decreed the suit in

part holding that the plaintiffs are entitled to 2/7th share in

the suit properties by judgment and decree dated

20.06.2015. Being aggrieved by the same, the plaintiffs

have filed this appeal under Section 96 of CPC.

8. Sri. Shivaraj S. Balloli, learned counsel for the

appellants/plaintiffs has submitted that 'A' suit schedule

property is a tenanted land and the tenancy rights has been

granted in favour of Basanagouda Patil. He further

submitted that since it is a tenanted land, as per the

definition of "Family" as defined under the Karnataka Land

Reforms Act, 1961 (hereinafter for brevity referred to as

'KLR Act'), 'married daughters' are excluded under the

definition of "family" and hence they are not entitled to a

share in 'A' schedule property and contrary to the

provisions of KLR Act, the trial Court has granted a decree.

In support of his contention, he has relied on the judgment

of this Court in Nimbavva and others v. Channaveerayya

and Others reported in ILR 2013 KAR 6202.

9. Sri. M.V. Hiremath, learned counsel appearing

for respondent Nos.4 to 6 has defended the judgment and

decree passed by the trial Court.

10. Sri. Sunil S. Desai, learned counsel or

respondent No.1 and 2 and Sri. Santosh B. Mane, learned

counsel for respondent No.3 have adopted the contentions

urged by the learned counsel for the appellants.

11. Heard the learned counsel for the parties.

Perused the impugned judgment and decree and the

original records.

12. The points that arise for our consideration are:

i) Whether the married daughters of Basanagouda are entitled for a share in 'A' schedule property which is granted in favour

of Basanagouda under the Karnataka Land Reforms Act, 1961?

ii) What order?

13. It is not in dispute that the plaintiffs and the

defendants are the joint family members. It is also not in

dispute that 'B' & 'C' schedule properties are joint family

properties. Schedule 'A' property is a land granted in

favour of Basanagouda under the KLR Act. The only

contention raised by the learned counsel for the appellants

is that, the daughters of Basanagouda, since are married,

are not entitled for a share in the 'A' schedule property

which is granted in favour of Basanagouda under the KLR

Act.

14. Section 2(12)of the Karnataka land Reforms

Act, 1961 defines "Family" as below:

"2(12) 'family' means,--

(a) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any,

(b) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters;

(c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmarried daughters, whether in his custody or not; and

(d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters;]

15. By a reading of the above definition it is very

clear that, both, major son and married daughter have

been excluded under the definition of the 'family' under KLR

Act. Hence, partition has to be effected under the Hindu

Succession Act, 1956.

16. For better understanding Sections 6 and 8 of

the Hindu Succession Act, 1956 is extracted below:

" 6. Devolution of interest in coparcenary property. --

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition

of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,--

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre- deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre- deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub- section shall affect--

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

8. General rules of succession in the case of males: The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter: --