Karnataka High Court
Devendrapa S/O Shivalingappa ... vs Parvathamma W/O Hanumanthappa ... on 14 March, 2022
Bench: H.T.Narendra Prasad, Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH 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.100165/2015 (PAR/POS)
C/W R.F.A.NO.100135 & R.F.A.NO.100145/2015
IN RFA NO.100165/2015
BETWEEN:
1. SMT.PARVATHAMMA W/O LATE SRI. HANUMANTHAPPA
BOMMANAL, OCC: AGRI AND HOUSEHOLD,
AGED ABOUT 57 YEARS,
R/O: MAILAPURA, TQ: GANGAVATHI, DIST: KOPPAL.
2. SMT.GANGAMMA W/O SHANKARAPPA BOMMANAL,
AGED ABOUT: 50 YEARS,OCC: AGRI AND HOUSEHOLD,
R/O: MAILAPURA, TQ: GANGAVATHI, DIST: KOPPAL.
.. APPELLANTS
(BY SRI.M.V.HIREMATH & SRI.V.S.KALASURMATH, ADVS.)
AND:
1. SRI.DEVENDRAPPA S/O SHIVALINGAPPA ANGADI,
AGED ABOUT: 61 YEARS, OCC: AGRI,
R/O: MAILAPURA, TQ: GANGAVATHI, DIST: KOPPAL.
2. SMT.SHANKARAMMA W/O HONNAPPA,
AGED ABOUT: 59 YEARS, OCC: AGRI AND HOUSEHOLD,
R/O: MAILAPURA, TQ: GANGAVATHI, DIST: KOPPAL.
2
3. SMT.DEVAMMA W/O MUDIYAPPA H ALIAS SHIVALINGAPPA,
AGED ABOUT: 55 YEARS, OCC: AGRI,
R/O: MAILAPURA, TQ: GANGAVATHI, DIST: KOPPAL.
4. SMT.MALLAMMA D/O SHIVALINGAPPA ANGADI,
AGED ABOUT: 53 YEARS, OCC: AGRI AND HOUSEHOLD,
R/O: MAILAPURA, TQ: GANGAVATHI, DIST: KOPPAL.
5. SAVITHRAMMA
SINCE DECEASED BY HER LR.S.,
(i). SRI.LINGAPPA S/O ESHAPPA,
AGED ABOUT: 43 YEARS, OCC: AGRI,
R/O: MAILAPURA, TQ: GANGAVATHI, DIST: KOPPAL.
(ii). SRI.BASAVARAJ S/O ESHAPPA,
AGED ABOUT: 41 YEARS, OCC: AGRI,
R/O: MAILAPURA, TQ: GANGAVATHI, DIST: KOPPAL.
(iii). SMT.LAKSHMI W/O HUCHAPPA MAGADADHAR,
AGED ABOUT: 35 YEARS, OCC: AGRI AND HOUSEHOLD,
R/O: KATIGEHALLI, HIREBOMMANAHAL POST,
TQ: YELBURGA, DIST: KOPPAL.
(iv). SMT.SHANTHAMMA D/O ESHAPPA,.
AGED ABOUT: 31 YEARS,OCC: AGRI AND HOUSEHOLD,
R/O: MAILAPURA, TQ: GANGAVATHI, DIST: KOPPAL.
(v). SMT.KANAKAMMA W/O GIRIYAPPA HORRA,
AGED ABOUT: 30 YEARS,OCC: AGRI AND HOUSEHOLD,
R/O: GODINAL, TQ: GANGAVATHI, DIST: KOPPAL.
(vi) . SRI.RAMANA GOWDA S/O ESHAPPA,
AGED ABOUT: 28 YEARS, OCC: AGRI,
R/O: MAILAPURA, TQ: GANGAVATHI, DIST: KOPPAL.
(vii). SMT.BASAMMA D/O ESHAPPA,
AGED ABOUT: 26 YEARS, OCC: AGRI AND HOUSEHOLD,
R/O: MAILAPURA, TQ: GANGAVATHI, DIST: KOPPAL.
6. SHARANABASAPPA S/O BASANA GOWDA POLICE PATIL,
AGED ABOUT: 30 YEARS, OCC: AGRI,
R/O: K BASAPURA, TQ: SINDHANUR, DIST: RAICHUR.
.. RESPONDENTS
3
(BY SRI.RAJASHEKHAR BURJI, ADV. FOR R1-R4 & R5(i-vii),
SRI.MALLIKARJUNSWAMY B.HIREMATH, ADV. FOR R6)
THIS APPEAL IS FILED UNDER U/SEC.96 OF CPC., 1908,
SEEKING TO SET ASIDE THE JUDGMENT & DECREE
DATED:28.03.2015, PASSED IN OS.NO.22/2010, ON THE FILE OF
THE SENIOR CIVIL JUDGE AT GANGAVATHI INSOFAR AS IT
RELATES TO SUIT SCHEDULE 'B' AND 'C' PROPERTIES.
IN RFA NO.100135/2015
BETWEEN:
1. SHRI.DEVENDRAPA S/O SHIVALINGAPPA ANGADI
AGE: 61 YEARS, OCC: AGRICULTURE, R/O: MAILAPUR-583
229, TQ: GANGAVATHI, DIST: KOPPAL
2. SMT.SHANKRAMMA W/O HONNAPPA
AGE: 59 YEARS, OCC: AGRICULTURE and HOUSEHOLD, R/O:
MAILAPUR-583 229, TQ: GANGAVATHI, DIST: KOPPAL
3. SMT.DEVAMMA W/O MUDIYAPPA H @ SHIVALINGAPPA
AGE: 55 YEARS, OCC: AGRICULTURE, R/O: MAILAPUR-583
229, TQ: GANGAVATHI, DIST: KOPPAL
4. MALLAMMA D/O SHIVALINGAPPA ANGADI
AGE: 53 YEARS, OCC: AGRICULTURE and HOUSEHOLD, R/O:
MAILAPUR-583 229, TQ: GANGAVATHI, DIST: KOPPAL
SMT.SAVITRAMMA W/O EASHAPPA
DECEASED BY LRS
5. LINGAPPA S/O EASHAPPA
AGE: 43 YEARS, OCC: AGRICULTURE, R/O: MAILAPUR-583
229, TQ: GANGAVATHI, DIST: KOPPAL
6. BASAVARAJ S/O EASHAPPA
AGE: 40 YEARS, OCC: AGRICULTURE, R/O: MAILAPUR-583
229, TQ: GANGAVATHI, DIST: KOPPAL
7. SMT.LAKSHMI W/O HUCHAPPA MAGADADHAR
AGE: 35 YEARS, OCC: AGRICULTURE and HOUSEHOLD,
R/O: KATAGIHALLI-583 237,
4
POST: HIRE BOMMANAHAL
TQ: YELBURGA, DIST: KOPPAL
8. SHANTHAMMA D/O EASHAPPA
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O: MAILAPUR-583 229, TQ: GANGAVATHI, DIST: KOPPAL
9. KANAKAMMA W/O GIRIYAPPA HOKRA
AGE: 30 YEARS, OCC: AGRICULTURE and HOUSEHOLD,
R/O: MAILAPUR-583 229,
TQ: GANGAVATHI, DIST: KOPPAL
10 . RAMANAGOUDA S/O EASHAPPA
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O: MAILAPUR-583 229, TQ: GANGAVATHI,
DIST: KOPPAL
11 . SMT.BASAMMA D/O EASHAPPA
AGE: 26 YEARS, OCC: AGRICULTURE and HOUSEHOLD,
R/O: MAILAPUR-583 229,
TQ: GANGAVATHI, DIST: KOPPAL
.. APPELLANTS
(BY SRI.RAJASHEKHAR BURJI, ADV.)
AND:
1. SMT.PARVATHAMMA W/O HANUMANTHAPPA BOMMANAL
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: MAILAPUR-583 229,
TQ: GANGAVATHI, DIST: KOPPAL
2. SMT.GANGAMMA W/O SHARANAPPA BOMMANAL
AGE: 50 YEARS, OCC: AGRICULTURE and HOUSEHOLD,
R/O: MAILAPUR-583 229,
TQ: GANGAVATHI, DIST: KOPPAL
3. SHRI.SHARANABASAPPA S/O BASANGOUDA POLICEPATIL
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O: K BASAPUR-584 128,
TQ: SINDHANOOR, DIST: RAICHUR
.. RESPONDENTS
(BY SRI.V.S.KALASURMATH, ADV. FOR
SRI.M.V.HIREMATH, ADV. FOR R1 & R2,
SRI.MALLIKARJUNSWAMY B.HIREMATH, ADV. FOR R3)
5
THIS APPEAL IS FILED UNDER U/O.41 RULE 1 R/W SEC.96
OF THE CPC. 1908, SEEKING TO SET ASIDE THE JUDGMENT AND
DECREE DATED 28.03.2015 PASSED BY THE SENIOR CIVIL JUDGE,
GANGAVATHI IN O.S.NO.22/2010 INSOFAR AS GRANTING THE
DECREE FOR DECLARATION AND PARTITION IN RESPECT 'A'
SCHEDULE PROPERRTY I.E., LAND R.S.NO.38/B OF K.BASAPUR
VILLAGE TO RESPONDENTS 1 AND 2 IS CONCERNED AND ALLOW
THE APPEAL WITH COSTS THROUGHOUT BY DISMISSING THE SUIT
OF RESPONDENTS 1 AND 2 IN O.S.NO.22/2010 ON THE FILE OF
THE SENIOR CIVIL JUDGE AT GANGAVATHI.
IN RFA NO.100145/2015
BETWEEN:
SHRI.SHARANABASAPPA
S/O. BASANGOUDA POLICEPATIL
AGE: 31 YEARS, OCC: AGRICULTURE
R/O. K BASAPUR, TQ: SINDHANOOR
DIST: RAICHUR
.. APPELLANT
(BY SRI.MALLIKARJUNSWAMY B.HIREMATH, ADV.)
AND:
1. SMT.PARVTHAMMA
W/O. HANUMANTHAPPA BOMMANAL
AGE: 57 YEARS
OCC: AGRICULTURE and HOUSEHOLD WORK
R/O. MAILAPUR,
TQ: GANGAVATHI, DIST: KOPPAL
2. SMT.GANGAMMA W/O. SHARANAPPA BOMMANAL
AGE: 50 YEARS,
OCC: AGRICULTURE and HOUSEHOLD WORK R/O.
MAILAPUR,
TQ: GANGAVATHI DIST: KOPPAL
6
3. SHRI.DEVENDRAPPA S/O. SHIVALINGAPPA ANGADI
AGE: 61 YEARS, OCC: AGRICULTURE
R/O. MAILAPUR, TQ: GANGAVATHI DIST: KOPPAL
4. SMT.SHANKRAMMA W/O. HONNAPPA
AGE: 59 YEARS, OCC: AGRICULTURE and HOUSEHOLD
WORK, R/O. MAILAPUR, TQ: GANGAVATHI DIST: KOPPAL
5. SMT.DEVAMMA W/O. MUDIYAPPA H
@ SHIVALINGAPPA
AGE: 55 YEARS, OCC: AGRICULTURE
R/O. MAILAPUR, TQ: GANGAVATHI, DIST:KOPPAL
6. MALLAMMA D/O. SHIVALINGAPPA ANGADI
AGE: 53 YEARS, OCC: AGRICULTURE and HOUSEHOLD
WORK, R/O. MAILAPUR, TQ: GANGAVATHI
DIST:KOPPAL
SMT.SAVITRAMMA W/O. EASHAPPA
SINCE DECEASED BY HER LRS
7. LINGAPPA S/O. EASHAPPA
AGE: 43 YEARS, OCC: AGRICULTURE
R/O. MAILAPUR, TQ: GANGAVATHI, DIST:KOPPAL
8. BASAVARAJ S/O. EASHAPPA
AGE: 40 YEARS, OCC: AGRICULTURE
R/O. MAILAPUR, TQ: GANGAVATHI, DIST:KOPPAL
9. SMT.LAKSHMI W/O. HUCHAPPA MAGADADHAR
AGE: 35 YEARS,
OCC: AGRICULTURE and HOUSEHOLD WORK
R/O. KATAGIHALLI, POST: HIRE BOMMANAHAL
TQ: YELBURGA, DIST:KOPPAL
10 . SHANTHAMMA D/O. EASHAPPA
AGE: 31 YEARS,
OCC: AGRICULTURE and HOUSEHOLD WORK
R/O. MAILAPUR, TQ: GANGAVATHI DIST:KOPPAL
11 . KANAKAMMA W/O. GIRIYAPPA HOKRA
AGE: 30 YEARS,
OCC: AGRICULTURE and HOUSEHOLD WORK
R/O. GODINAL, TQ: GANGAVATHI DIST:KOPPAL
7
12 . RAMANAGOUDA S/O. EASHAPPA
AGE: 29 YEARS, OCC: AGRICULTURE
R/O. MAILAPUR,
TQ: GANGAVATHI DIST:KOPPAL
13 . SMT.BASAMMA D/O. EASHAPPA
AGE: 26 YEARS,
OCC: AGRICULTURE and HOUSEHOLD WORK
R/O. MAILAPUR,
TQ: GANGAVATHI DIST:KOPPAL
.. RESPONDENTS
(BY SRI.RAJASHEKHAR BURJI, ADV. FOR R3-R13,
SRI.V.S.KALASURMATH, ADV. FOR
SRI.M.V.HIREMATH, ADV. FOR R1 & R2)
THIS APPEAL IS FILED UNDER UNDER ORDER 41 RULE 1
R/W. SEC. 96 OF CPC, 1908, SEEKING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 28.03.2015 PASSED BY THE
SENIOR CIVIL JUDGE, GANGAVATHI IN O.S.NO.22/2010 INSOFAR
AS GRANTING THE DECREE FOR DECLARATION AND PARTITION IN
RESPECT 'A' SCHEDULE PROPERRTY I.E., LAND R.S.NO.38/B OF
K.BASAPUR VILLAGE TO RESPONDENTS 1 AND 2 IS CONCERNED
AND ALLOW THE APPEAL WITH COSTS THROUGHOUT BY
DISMISSING THE SUIT OF RESPONDENTS 1 AND 2 IN
O.S.NO.22/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AT
GANGAVATHI.
THESE APPEALS HAVING BEEN HEARD THE RESERVED FOR
JUDGMENT ON 07.03.2022 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, RAJENDRA BADAMIKAR, J.
DELIVERED THE FOLLOWING:
8
JUDGMENT
All these appeals are arising out of the judgment
and decree passed by the Senior Civil Judge, Gangavathi
in O.S.No.22/2010 dated 28.03.2015 whereby the
learned Senior Civil Judge has partly decreed the suit of
the plaintiffs by granting 1/7th share each in schedule 'A'
property and rejected the claim of the plaintiffs in
schedule 'B' and 'C' properties.
2. RFA No.100135/2015 is filed by defendant
No.1 aggrieved by the judgment and decree of the trial
court holding that schedule 'A' property is joint family
property of plaintiffs and defendant Nos.1 to 5 and
awarding 1/7th share each to the plaintiffs. RFA
No.100145/2015 is filed by defendant No.6 who has
purchased schedule 'A' property during the pendency of
the suit. RFA No.100165/2015 is filed by the plaintiffs
being aggrieved by the judgment and decree denying
their share in schedule 'B' and 'C' properties.
3. For the sake of convenience, parties shall be
referred with the original ranks occupied by them before
the trial court.
4. The plaintiffs have filed suit for partition and
separate possession of their 1/4th share each in the suit
schedule properties and for declaration that the
agreement of sale dated 30.07.2010 executed by
defendant No.1 in favour of defendant 6 is null and void
and not binding on the share of the plaintiffs. According
to the plaintiffs, land bearing Sy.No.38/B totally
measuring 9 acres 24 guntas was possessed by
Mahanthamma and she has acquired the said property
from her brother. Plaintiff Nos.1 and 2 and defendant
Nos.1 to 5 are the daughters and son of the said
Mahanthamma. It is contended that plaintiffs and
defendant Nos.1 to 5 are the legal heirs of
Mahanthamma and that suit schedule 'A' property was
initially measured 9 acres 24 guntas and Mahantamma
was the absolute owner in possession of the said
property. After her death, plaintiffs and defendant Nos.1
to 5 as legal heirs have jointly inherited the said
property. It is further asserted that defendant No.1 being
brother of the plaintiffs was managing the affairs of the
land and without the knowledge of the plaintiffs got
mutated his name in schedule 'A' property and sold 2
acres 8 guntas without the consent of the plaintiffs. Now
remaining 7 acres 16 guntas is schedule 'A' property. It
is further alleged that schedule 'B' and 'C' properties
were purchased by defendant No.1 out of the joint family
income and they are joint family properties. It is further
asserted that defendant Nos.2 to 4 have received their
legitimate share in the suit schedule properties and they
are made as formal parties and as such, plaintiffs and
defendant Nos.1 and 5 are jointly entitled for 1/4th share
each in the suit schedule property. Hence, the suit.
5. Defendant Nos.1 to 4 filed written statement
denying the allegations and assertions made there under.
The relationship between the parties is admitted. Further,
it is also admitted that schedule 'A' property was
originally owned by their mother Mahanthamma and 2
acres 8 guntas was sold by defendant No.1. However, it
is further denied that defendant No.1 has got mutated
his name to schedule 'A' property without the knowledge
of the plaintiffs. It is further denied that schedule 'B' and
'C' properties are acquired out of the joint family nucleus.
It is contended that father of the plaintiffs and defendant
Nos.1 to 5 Shivalingappa divided his entire properties
including suit schedule properties amongst the plaintiffs
and defendant Nos.1 to 5 and allotted share in the
properties to all his daughters and defendant No.1. It is
contended that plaintiffs were given one house and 10
tola gold each, defendant No.2 was given 1 acre wet land
and one house, defendant No.3 was given 4 acres of land
and one house, defendant No.4 was given 6 acres dry
land and defendant No.5 was given Rs.25,000/- cash and
10 tola gold ornaments towards their share in the family
properties. As such, plaintiffs and defendant Nos.2 to 5
relinquished their share in schedule 'A' property and as
such, defendant No.1 has become the absolute owner of
schedule 'A' property. He has also contended that he is
running kirana business and hotel business and out of
the said income, he purchased schedule 'B' and 'C'
properties, which are his self-acquired properties. He has
also asserted that his father was suffering from mental
sickness and he was also suffering from kidney problem.
Therefore, he has incurred huge debt for the treatment of
his father and himself and in order to meet out the family
needs, he has sold schedule 'A' property in favour of
defendant No.6. Hence, he sought for dismissal of the
suit.
6. Defendant No.6 filed his written statement
denying the allegations. He has taken all the grounds
urged by defendant No.1 in his written statement. He
contended that alienation made by defendant No.1 in
respect of 2 acres 8 guntas earlier is not challenged by
the plaintiffs and as such, suit is not maintainable. He
further contended that plaintiffs were not in possession
and enjoyment of the properties and suit is not properly
valued. Hence, he sought for dismissal of the suit.
7. On the basis of these pleadings, the trial court
has framed following issues:
i) Whether the plaintiff proves that after the
death of Smt.Mahanthamma themselves
and defendant No.1 to 5 have succeeded 'A'
schedule property?
ii) Whether the plaintiff proves that 'B' and 'C'
schedule properties are purchased by the
defendant out of joint family funds?
iii) Whether the defendant no.1 to 5 prove that
the plaintiffs and defendant 2 to 5 by taking
their share have relinquished their rights
and interest in favour of defendant No.1 in
respect of 'A' schedule property, as per para
5 of the written statement?
iv) Whether the defendant No.1 to 5 prove that
'B' and 'C' schedule properties are self
acquired properties of defendant No.1?
v) Whether the defendants prove that suit is
bad for partial partitions?
vi) Whether the defendant No.6 proves that
suit is bad for non-joinder of parties to the
suit?
vii) Whether the plaintiffs are entitle for relief of
partition and separate possession of 1/4th
share each?
viii) To what order or decree?
Additional Issue:
i) Whether the plaintiffs prove that the
Agreement of sale dated 30-07-2011 is null
and void and not binding upon their share?
8. Plaintiff No.1 was examined as P.W.1 and two
witnesses were examined on behalf of the plaintiffs as
P.Ws.2 and 3. Further, plaintiffs placed reliance on 14
documents marked at Exs.P1 to P14. Defendant No.1
was examined as D.W.1 and defendant No.6 was
examined as D.W.4. Two witnesses were examined on
behalf of the defendants as D.Ws.2 and 3. Defendants
have also placed reliance on 24 documents marked at
Exs.D1 to D24.
9. The learned Senior Civil Judge after hearing
the arguments and appreciating the oral and
documentary evidence has answered issue Nos.1, 4 and
additional issue No.1 in the affirmative, while issue No.7
was answered partly in affirmative and issue Nos.2, 3, 4,
5 and 6 were answered in the negative. As a result, he
decreed the suit partly by awarding 1/7th share each to
the plaintiffs in schedule 'A' property declaring that
agreement of sale is null and void and dismissed the suit
pertaining to schedule 'B' and 'C' properties holding that
they are self-acquired properties of defendant No.1.
Being aggrieved by this impugned judgment and decree,
these appeals are filed.
10. Heard the arguments advanced by the learned
counsels for the appellants and learned counsels for the
respondents. Perused the records.
11. It is argued on behalf of the appellants in RFA
No.100135 and RFA No.100145 of 2015 that, trial court
has erroneously awarded 1/7th share to the plaintiffs in
schedule 'A' property ignoring the fact that it was sold for
legal necessity. He would also contend that trial court has
failed to take note of the earlier partition, which is also
admitted by P.W.1 in her cross-examination and
allotment of schedule 'A' property in favour of defendant
No.1. He would further contend that this is a case of
blending of schedule 'A' property in the joint family
property and if this version and the entire evidence are
taken into consideration, it clearly discloses that there is
a blending and as such, plaintiffs have relinquished their
share in the suit schedule properties by accepting their
share. Hence, defendant Nos.1 and 6 prayed for allowing
their appeals declaring that schedule 'A' property is also
absolute property of defendant No.1.
12. Per contra, learned counsel for the
respondents in these two appeals and appellants in RFA
No.100165/2015 would contend that there is no material
evidence to prove the alleged oral partition and allotment
of share in favour of the plaintiffs as pleaded. Further, no
details regarding said partition were pleaded and no
documents are forthcoming. He would also contend that,
admittedly, schedule 'A' property is 'sthreedhan' property
of the mother of the plaintiffs and defendant Nos.1 to 5
and there is absolutely no material regarding blending
and as such, the contentions of the defendants cannot be
accepted. He would also contend that evidence discloses
that defendant No.1 was in possession of the joint family
properties and he utilized the nucleus of the joint family
properties for acquiring schedule 'B' and 'C' properties.
Hence, he would contend that trial court has erred in
holding that these two properties are self-acquired
property of defendant No.1 without properly appreciating
oral and documentary evidence. Hence, he prayed for
allowing RFA No.100165/2015 by holding that schedule
'B' and 'C' properties are also joint family properties by
awarding share to the plaintiffs and prayed for dismissal
of other two appeals.
13. Having heard the arguments and perusing the
records, now the following point would arise for our
consideration:
Whether the judgment and decree passed
by the trial court in partly decreeing the suit
pertaining to schedule 'A' property and rejecting
claim in respect of Schedule 'B' & 'C' properties is
perverse, erroneous and suffers from serious
infirmity so as to call any interference by this
court?
14. It is an undisputed fact that plaintiffs and
defendant Nos.2 to 5 are the sisters of defendant No.1.
They are daughters and son of Shivalingappa Angadi and
Mahantamma. It is also an undisputed fact that, schedule
'A' property bearing Sy.No.38/B was owned by
Mahanthamma and she has acquired it from her brother
Basanagouda. Hence, it is to be noted here that said
property is a 'sthreedhan' property as per Section 14 of
the Hindu Succession Act. As such, the concept of joint
family properties is not applicable to schedule 'A'
property. Learned counsel for the appellants would
contend that when the family partition has taken place,
there was a blending and schedule 'A' property was put
to common hotchpotch during the family partition. On
perusal of the written statement of defendant No.1, it is
evident that there is no specific pleading made regarding
blending. In para 5 of the written statement, defendant
No.1 has simply pleaded that father Shivalingappa during
his lifetime only has allotted shares to the plaintiffs and
defendant Nos.2 to 5 and it is narrated that they were
given one house and 10 tola gold each, defendant No.2
was given 1 acre wet land and one house, defendant
No.3 was given 4 acres of land and one house, defendant
No.4 was given 6 acres dry land and defendant No.5 was
given Rs.25,000/- cash and 10 tola gold ornaments
towards their share in the family properties. But this para
does not disclose as to when exactly this oral partition
has taken place. Further, there is no pleading as to which
specific property was allotted to whom. It is simply
pleaded in the written statement at para 5 that, by
taking their share from their father, plaintiffs and
defendant Nos.2 to 5 have relinquished their rights and
interest over schedule 'A' property in favour of defendant
No.1. This para does not speak about blending and it
does not say that schedule 'A' property was put into
common hotchpotch. Even after para 10 of written
statement, defendant No.1 again pleaded that father of
the plaintiffs and defendants has given his entire landed
and house property and gold ornaments in favour of
plaintiffs and defendant Nos.2 to 5 towards their share in
the family properties, subject to the condition that
plaintiffs and defendant Nos.2 to 5 should not claim any
share or interest in schedule 'A' property.
15. At the outset, schedule 'A' property is a
'sthreedhan' property and admittedly, the father of the
plaintiffs and defendant Nos.1 to 5 Shivalingappa had no
vested interest in schedule 'A' property, as he is not a
Class-I heir of his wife Mahanthamma and it is only
plaintiffs and defendant Nos.1 to 5 who can inherit
schedule 'A' property. But admissions in evidence
disclose that, father Shivalingappa along with defendant
No.1 has already sold 2 acres 8 guntas. No doubt, the
said sold area is not included in the suit, but it only
discloses that plaintiffs have abandoned their claim over
that portion of the property. But no blending is pleaded
and no details have been furnished as to which
properties were allotted to whom.
16. Even defendant Nos.1 to 5 have not even
produced any scrap of paper to show that any of these
properties were allotted in the name of respective parties
as per the varadi regarding oral partition. The material
evidence in the form of mutation entries is also not
produced and as such, the contention of the defendants
that there was earlier partition wherein schedule 'A'
property was allotted to the share of defendants holds no
water at all. The case of blending itself is not proved and
documents do not establish that the properties allotted to
the share of defendant Nos.2 to 5 were because of the
family partition.
17. Much arguments have been advanced
regarding non-allotment of any share to the plaintiffs in
that joint family properties. But there is absolutely no
pleading either from the plaintiffs or from the defendants
as to what was the extent of joint family property held by
the father Shivalingappa. Admittedly, schedule 'A'
property is 'sthreedhan' property of Mahanthamma and
in the absence of any material evidence and detailed
objection regarding blending, the contention of defendant
No.1 that schedule 'A' property was allotted to the share
of defendant No.1 and he has become the exclusive
owner holds no water at all.
18. The other contention is regarding alienation of
schedule 'A' property in favour of defendant No.6. When
the suit was filed, initially there was agreement of sale.
But the records disclose that, in 2012 during the
pendency of this suit, defendant No.1 has executed sale
deed in favour of defendant No.6. It is also important to
note here that defendant No.6 cannot be termed as a
bonafide purchaser as he is nearest relative of plaintiffs
and defendants. The sister of defendant No.6 was given
in marriage to defendant No.1 and further, the daughter
of defendant No.1 was given in marriage to defendant
No.6. Hence, it is evident that defendant No.6 was
closely related to defendant No.1 and under such
circumstances, he cannot be termed as a bonafide
purchaser.
19. Much arguments have been advanced
regarding defendant No.1 spending huge amount for
treatment of his father and for his own treatment and to
meet the legal necessity, he selling schedule 'A' property.
But when he is not the absolute owner of schedule 'A'
property, which is a 'sthreedhan' property, the said
contention cannot be accepted and he could have
alienated schedule 'B' and 'C' properties, which he claims
to be his exclusive properties. Further, the sale deed was
executed during the pendency of the suit, which discloses
the intention of defendant Nos.1 and 6. Defendant No.6
though filed the appeal does not have any locus standi to
challenge the partition or other issues, as he is sailing
with defendant No.1 and he had no independent interest
other than that of defendant No.1.
20. Plaintiffs pleaded that defendant No.1 has
acquired schedule 'B' and 'C' properties from joint family
nucleus. On the contrary, defendant No.1 has claimed
that they are his self-acquired properties. Since the
plaintiffs are asserting that schedule 'B' and 'C' properties
are acquired out of the aid of joint family property
nucleus, the initial burden is on the plaintiffs to prove the
existence of joint family nucleus. But the plaintiffs have
not led any material evidence in this regard. On the
contrary, it is admitted that, defendant No.1 was doing
kirana business and hotel business and as such, he had
independent source of income. Further, there is no
material evidence to show that he is in possession of any
joint family properties to generate any joint family
nucleus. P.W.1 herself has admitted regarding defendant
No.1 running kirana business and hotel business and he
is having independent source of income. Merely because,
defendant No.1 was in possession of schedule 'A'
property, which is a 'sthreedhan' property, it cannot be
presumed that said property was fetching sufficient
income, as admittedly, it was a dry-land. Plaintiffs have
not produced any other material evidence to show that
defendant No.1 was getting income from schedule 'A'
property, which he has utilized for acquisition of schedule
'B' and 'C' properties. P.W.1 admitted that schedule 'A'
property is a dry-land and she was not aware of the
income of the said land. Further, P.W.1 herself has
admitted that her father had distributed joint family
properties amongst the daughters i.e., defendant Nos.2
to 5 and in that case, when no joint family property was
given to defendant No.1, question of generating nucleus
does not arise at all.
21. Further, schedule 'B' and 'C' properties were
purchased long back and construction was undertaken
long back and plaintiffs never asserted their rights over
this property nor raised any objection for construction.
Under these circumstances, the trial court has rightly
observed that plaintiffs have failed to prove that schedule
'B' and 'C' properties are acquired with the aid of joint
family property nucleus and accordingly, the issues were
properly answered by the trial court.
22. As observed above, schedule 'A' property is
'sthreedhan' property and the allegations of defendant
No.1 discloses that his father has effected partition, but
his father himself has sold part of Sy.No.38/B, in which
he had no interest along with defendant No.1. Anyhow,
that alienated property was not part of schedule 'A'
property and plaintiffs have abandoned their claim.
23. The blending as asserted by defendant No.1 is
not at all established and no specific pleadings are
forthcoming in the written statement in this regard. A
bald pleading has been made and now it is argued that it
is to be treated as blending, but it does not disclose the
details as to which of the properties were allotted to any
of the family members. As observed above, none of the
mutation entries or varadi were produced to show that
entries of the names of parties to the respective
properties were based on this oral partition and others
have consented for it. Under these circumstances, the
trial court has rightly rejected the claim of defendant
No.1 that schedule 'A' property is his absolute property.
Defendant No.6 has no legal right to challenge the
partition, as he is stranger to the family. Though he is
related to defendant No.1 closely being his son-in-law, he
is not a bonafide purchaser. Apart from that, sale deed
was executed during the pendency of the suit, which
discloses the intention of defendant Nos.1 and 6.
24. As observed above, schedule 'A' property is
not a coparcenory property of plaintiffs and defendant
No.1, but it is a 'sthreedhan' property inherited and
governed under Sections 14 and 15 of the Hindu
Succession Act. Even the trial court has considered
defence of blending and has answered that it is not
established. There is absolutely no material evidence to
show that schedule 'A' property was subject matter of
oral partition as alleged by the defendants. Father of the
plaintiffs and defendant Nos.1 to 5 has no right to put
schedule 'A' property in common hotchpotch in order to
give the character of joint family property, as he himself
has no interest in the said property. Further, to prove the
assertion regarding relinquishment of their right in
schedule 'A' property by the plaintiffs and defendant
Nos.2 to 5, no peace of document is produced by the
defendants. Admittedly, defendant No.4 is unmarried
sister residing with defendant No.1 and her property was
already mutated in the name of son of defendant No1, as
admitted by him.
25. Under these circumstances, looking to these
facts and circumstances, it is evident that defendant No.1
has failed to prove that schedule 'A' property is
exclusively owned by him and plaintiffs have failed to
prove that schedule 'B' and 'C' properties are acquired
out of joint family nucleus. The learned Senior Civil Judge
has appreciated oral and documentary evidence
meticulously with reference to relevant documents and
has arrived at a just decision. The judgment and decree
passed by the learned Senior Civil Judge does not suffer
from any infirmity or illegality so as to call for any
interference by this court. Under these circumstances, all
the appeals are devoid of any merit and accordingly, the
point under consideration is answered in negative and
therefore, we proceed to pass the following:
ORDER
RFA Nos.100165, 100135 and 100145 of 2015
are dismissed by confirming the judgment and
decree dated 28.03.2015 passed by the Senior Civil
Judge, Gangavathi in O.S.No.22/2010.
Under the circumstances, there is no order as
to costs.
Sd/-
JUDGE
Sd/-
JUDGE
MBS/-
