Karaverappa Kusugal vs Basavanewwa Kamati
2022 Latest Caselaw 3904 Kant

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           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

         DATED THIS THE 8TH DAY OF MARCH 2022

                        PRESENT

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

                          AND

     THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR


             R.F.A.No.100065/2014 (PAR/POS)

BETWEEN:

1.   SRI.KARAVERAPPA KUSUGAL
     S/O. VEERAPPA KUSUGAL
     AGE: 78 YEARS, OCC: AGRICULTURE
     (DECEASED AND APPELLANTS 2 TO 4 & R1 & R12
     ARE L.R'S OF DECEASED APPELLANT NO.1)

2.   SRI.VIRUPAKSHAPPA KUSUGAL
     S/O. KARAVEERAPPA KUSUGAL
     AGE: 53 YEARS, OCC: AGRICULTURE

3.   SRI.SADANAND KUSUGAL
     S/O KARAVEERAPPA KUSUGAL
     AGE: 48 YEARS, OCC: AGRICULTURE

4.   SMT.GOURAVVA KUSGAL
     W/O KARAVEERAPPA KUSUGAL
     AGE: 72 YEARS, OCC: HOUSEHOLD WORK

     ALL THE APPELLANTS ARE
     R/O. GULIANGANIKOPPA NEAR MALAPUR
     LAST STOP, DHARWAD
                                        .. APPELLANTS
(BY SRI.SANTSH MANE, SRI.NEELENDRA D.GUNDE &
    SRI.SUNIL S.DESAI, ADVS.)
                              2




AND:

1.   SMT.BASAVANEWWA KAMATI
     W/O. YALLAPPA KAMATI
     AGE: 49 YEARS, OCC: HOUSEHOLD WORK
     R/O. YADWAD ROAD
     NEAR APMC YARD DHARWAD

2.   SRI.MALLESHAPPA KUSUGAL
     S/O. VEERAPPA KUSUGAL
     AGE: 73 YEARS, OCC: AGRICULTURE
     R/O. MARATHA COLONY
     NEAR BUDDHA RAKKITH HOSTEL, DHARWAD

3.   SMT.NEELAMA KUSUGAL
     W/O. BASAPPA KUSUGAL
     AGE: 72 YEARS, OCC:HOUSEHOLD WORK
     R/O. IST CROSS, NEAR TOURIST HOTEL,
     RAM NAGAR, DHARWAD

4.   SRI.ASHOK KUSUGAL
     S/O. BASAPPA KUSUGAL
     AGE: 62 YEARS, OCC: AGRICULTURE
     R/O. KUMERESHWAR SANGH,
     2ND CROSS, BHARATHI NAGAR, DHARWAD

5.   SRI.GANGADHAR KUSUGAL
     S/O. BASAPPA KUSUGAL
     AGE: 58 YEARS, OCC: PENSIONER
     R/O. IST MAIN, GANDHI NAGAR, DHARWAD

6.   SRI.PRAKASH KUSUGAL
     S/O. BASAPPA KUSUGAL
     AGE: 44 YEARS, OCC: PVT. SERVICE
     R/O. IST CROSS, NEAR TOURISTS HOTEL,
     RAM NAGAR, DHARWAD

7.   SRI.SURESH KUSUGAL
     S/O. BASAPPA KUSUGAL
     AGE: 49 YEARS,
     OCC: PVT. SERVICE
     R/O. IST CROSS, NEAR TOURIST HOTEL,
     RAM NAGAR, DHARWAD
                             3




8.   SMT.AKKAVVA ANGADI
     W/O. BASAVARAJ ANGADI
     AGE: 44 YEARS, OCC: HOUSEHOLD WORK
     R/O. 4TH MAIN, 3RD CROSS,
     VIVEKANAND NAGAR, DHARWAD

9.   SMT.PREMA PATIL
     W/O. DYAMANAGOUDA PATIL
     AGE: 40 YEARS, OCC: HOUSEHOLD WORK
     R/O. IST CROSS, NEAR TOURIST HOTEL
     RAM NAGAR, DHARWAD

10 . SMT.KAMALA NASHBI
     W/O. CHANDRASHEKAR NASHBI
     AGE: 42 YEARS, OCC: HOUSEHOLD WORK
     R/O. IST CROSS, SADHANKERI DHARWAD

11 . SMT.VIMALA MAGADUR
     W/O. SAMPATHKUMAR MAGADUR
     AGE: 36 YEARS, OCC:HOUSEHOLD WORK
     R/O. IST CROSS, NEAR TOURIST HOTEL,
     RAM NAGAR, DHARWAD

12 . SMT.PATREVVA KAMATI
     W/O. BASAVANNAPPA KAMATI
     AGE: 52 YEARS, OCC: HOUSEHOLD WORK
     R/O. VIJAYANAGAR, 2ND CROSS
     NEAR SAMPIGE NAGAR, DHARWAD
                                           .. RESPONDENTS

(BY SRI.S.R.HEGDE & SRI.B.RAGHAVENDRA SIMHA, ADVS FOR R1;
SRI.SHIVASAI M.PATIL, ADV. FOR R1;
SRI.S.R.HOOLI, ADV. FOR R1;
R2 TO R12 SERVED BUT UNREPRESENTED)

     THIS APPEAL IS FILED UNDER SECTION 96 R/W ORDER XVI
RULE 1 OF CPC PRAYING TO ALLOW THE APPEAL BY SETTING
ASIDE THE JUDGMENT AND DECREE PASSED BY THE LEARNED III
ADDITIONAL SENIOR CIVIL JUDGE & CJM, DHARWAD IN
O.S.NO.141/2010 DATED 18.03.2013.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 03.03.2022 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT   THIS   DAY,   RAJENDRA     BADAMIKAR,   J.
DELIVERED THE FOLLOWING:
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                         JUDGMENT

This is defendants appeal filed under Section 96 r/w

Order XLI Rule 1 of CPC challenging the judgment and

decree passed by the III Additional Senior Civil Judge, &

CJM, Dharwad in O.S.No.141/2010 dated 18.03.2013

wherein the trial court has decreed the suit.

2. For the sake of convenience, parties shall be

referred with the original ranks occupied by them before

the trial court.

3. The brief factual matrix leading to the case

are as under:

Plaintiff has filed a suit for partition and separate

possession of her 1/5th share in 1/3rd share belonging to

defendant No.1. It is the contention of the plaintiff that

propositus one Veerappa who had three sons i.e.,

Basappa, Karaveerappa i.e., defendant No.1 and

Malleshappa-defendant No.6. It is also contended that

Basappa died and defendant Nos.7 to 15 are

representing his branch and plaintiff is the daughter of

defendant No.1, while defendant Nos.2 and 3 are the

sons of defendant No.1. Defendant No.4 is another

daughter and defendant No.5 is the wife of defendant

No.1. According to the plaintiff, suit schedule properties

are joint family ancestral properties and properties at

Sl.Nos.1 and 2 have been acquired by Housing Board and

compensation was already deposited in E.P.No.37/2003,

and defendant Nos.1, 6 and 7 to 15 have taken their

respective shares and the additional compensation was

also deposited in E.P.No.384/2009 and defendant Nos.1,

6 to 13 are making attempts to withdraw the said

compensation. Hence, she has filed the suit seeking her

1/5th share in 1/3rd share of defendant No.1.

4. Defendants have appeared and contested the

matter. Defendant No.8 filed written statement

contending that there was partition between defendant

Nos.1, 6 and 7 to 15 and they are enjoying their

respective shares and they are not proper parties. On the

contrary, defendant No.1 has disputed the claim of the

plaintiff, but did not dispute the relationship and status of

the joint family properties. He has also admitted

acquisition of properties at Sl.Nos.1 and 2 and partition

amongst defendant Nos.1, 6 and 7 to 15. It is the specific

contention of defendant No.1 that plaintiff was given

cash and gold which is more than the share which she

was entitled to during her marriage and sought for

dismissal of the suit.

5. Plaintiff was examined as P.W.1 and she

placed reliance on 8 documents. Defendant No.1 was

examined as D.W.1, but did not produced any

documentary evidence. The trial court has decreed the

suit of the plaintiff by awarding her 1/5th share in 1/3rd

share of defendant No.1 in properties at Sl.Nos.1 and 2

and she was given 1/5th share in properties at Sl.Nos.3

and 4.

6. Being aggrieved by this judgment and decree,

defendant Nos.1 to 3 and 5 have filed this appeal.

7. We have heard the learned counsel for the

appellants and learned counsel for the respondents.

8. Learned counsel for the appellants has

contended that plaintiff had withdrew her share in the

compensation amount awarded in respect of properties

at Sl.Nos.1 and 2 during the pendency of the suit as per

the interim order. He would also contend that trial court

has erred in not awarding any share to appellant No.4

who is none other than wife of appellant No.1/defendant

No.1. Hence, his contention is that, as per Sections 314

and 339 of the Mulla's Hindu Law, wife of defendant No.1

who is the mother of the plaintiff and defendant Nos.2 to

4 is entitled for equal share.

9. Per contra, learned counsel for the

respondents would support the judgment and decree of

the trial court.

10. The short point involved in this case is,

whether defendant No.5-Gouravva is entitled for equal

share in the suit schedule properties as claimed by the

appellants?

11. It is undisputed fact that suit schedule

properties are joint family ancestral properties. It is

further undisputed fact that properties at Sl.Nos.3 and 4

were allotted to the share of defendant No.1 in the

partition between defendant Nos.1, 6 and 7 to 15. It is

also not under serious dispute that properties at Sl.Nos.1

and 2 have been acquired by the Housing Board and the

compensation was deposited in the execution petition

and defendant No.1 has already taken his 1/3rd share and

the additional compensation is again deposited. Learned

counsel for the appellants contented that as per Section

314 of the Mulla's Hindu Law and Section 8 of the Hindu

Succession Act, defendant No.5 is entitled for equal share

and hence, it is contended that the plaintiff will not get

1/5th share in 1/3rd share of defendant No.1 but she will

get 1/6th share, as the mother also gets equal share to

that of a son and daughter.

12. It is important to note here that property is

not a simple coparcernary property so as to apply the

principles of Hindu Law. The property is joint family

ancestral property. Hence, the devolution of interest is

governed under Section 6 of the Hindu Succession Act.

As per Section 6, the son and daughter are coparceners

and as such, they get equal right along with the

propositus i.e., defendant No.1. Defendant No.5 cannot

claim equal share in ancestral properties to that of a son

as well as daughter and her right during the partition

between the children is restricted in respect of share in

the properties of her husband. Admittedly, in the instant

case, Karaveerappa was alive when the suit was filed and

his share admittedly is restricted to 1/3rd in properties at

Sl.Nos.1 and 2. In 1/3rd share, plaintiff is admittedly

being a daughter along with defendant Nos.1 to 4 is

entitled for 1/5th share and defendant No.5 being the wife

of defendant No.1 is only entitled for share in the share

of defendant No.1, who died during the pendency of this

appeal. Section 6 of the Hindu Succession Act makes it

very clear that, when defendant No.5 being not a

coparcener, she cannot get equal share to that of her son

or daughter. The other contentions that withdrawal of

Rs.10,00,000/- by the plaintiff pursuant to an interim

order is required to be adjusted in the final decree

proceedings only. The trial court has considered all these

aspects and has rightly decreed the share of the plaintiff

to the extent of 1/5th share in 1/3rd share in properties at

Sl.Nos.1 and 2 and 1/5th share in properties at Sl.Nos.3

and 4, which were exclusively allotted to the share of

defendant No.1. Appellant No.4/defendant No.5 is

required to work out her remedy in the share of her

husband alone during final decree proceedings. Under

these circumstances, the point under consideration is

accordingly answered. The judgment and decree does

not suffer from any perversity or illegality. Hence, the

same does not call for any interference. Hence, the

appeal being devoid of any merits needs to be dismissed.

Accordingly, we proceed to pass the following:

ORDER The appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE MBS/-