Sri.Rayappa Ramappa Shanwad vs Sri.Bharamanna @ Bharamappa ...
2022 Latest Caselaw 5083 Kant

  IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

       DATED THIS THE 21 S T DAY OF MARCH, 2022

                          BEFORE

       THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


              R.S.A. NO.100691/2018 (PAR.)

BETWEEN

SRI. RAYAPPA RAM APPA SHANWAD,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: HALINGALLI, TQ: JAMKHANDI,
DIST: BAGALK OTE-587301.
                                             ...APPELLANT
(BY SRI. M.H.PATI L, ADVOCAT E)

AND

SRI.BHARAMANNA @ BHARAMAPPA APPANNA PATIL
(DIED ON 12.10.2016)

SMT.BALAVVA BHARAMAPPA @ BHARMANNA PATIL,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O: HALINGALLI, TQ: JAMKHANDI,
DIST: BAGALK OTE-587301.
                                       ...RESPONDENT
(RESPONDENT SERVED)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAI NST
THE JUDGMENT AND DECREE DATED 07.04.2018 PASSED IN
R.A. NO.55/2016 ON THE FILE OF THE PRINCI PAL SENIOR
CIVIL JUDGE, AT HANI, PARTLY ALLOWING THE APPEAL AND
SETTING   ASIDE   THE   JUDGMENT    AND   DECREE   DATED
23.08.2016 PASSED IN O.S. NO.201/1996 ON THE FILE OF THE
ADDL. CIVIL JUDGE AND J.M.F.C., ATHANI, PARTLY DECREEING
THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

    THIS RSA COMING ON FOR ORDERS        THIS   DAY,   T HE
COURT , DELIVERED THE FOLLOWING:
                                      2


                              JUDGMENT

Challenging judgment and decree dated 07.04.2018,

passed by Principal Senior Civil Judge, Athani, in

R.A.No.55/2016 (for short "first appellate Court") and

judgment and decree dated 23.08.2016 passed by I Addl.

Civil Judge and J.M.F.C., Athani, in O.S.No.201/1996 (for

short 'trial Court') this appeal is filed.

2. Appellant herein was defendant no.2 in the suit

and respondent in first appeal; while respondents herein

were plaintiffs.

3. This appeal arises out of O.S.No.201/1996 filed

by Smt.Padamawwa w/o Ramappa Shanawad (plaintiff

no.1) deceased by her Legal representatives

Sri Bharmappa Appanna Patil, (plaintiff no.1(A)) and

Smt.Balawwa w/o Bharmappa Appanna Patil. Suit was filed

for relief of partition and separate possession of suit

schedule properties against Sri Ramappa s/o Tarappa

Shanawad (defendant no.1) and Sri Rayappa Ramappa

Shanawad (defendant no.2). During pendency of suit,

def.1 was deleted from array of parties.

In the plaint, it was stated that suit schedule

properties were joint family agricultural properties of

plaintiffs and defendants. It was stated that plt.1 was

wife of defendant no.1; while plaintiff no.2 was daughter

and defendant no.2 son of plaintiff no.1. It was stated

that though plaintiffs were also members of joint family

and entitled to share in suit properties, defendants

partitioned same between themselves without knowledge

or consent of plaintiffs and got entries in revenue records

mutated in their name. Immediately after coming to know

of illegal mutation, plaintiffs asked defendants for their

share in suit schedule properties by effecting partition.

Refusal of defendant no.1 to give plaintiffs' legitimate

share, gave rise to cause of action for filing suit.

It was also stated that as plaintiff no.1 was not being

properly maintained, she was residing in the house of her

daughter - Balawwa- plaintiff no.2 and her husband. Out

of love and affection, pltf.1- Padmawwa executed

registered Will dt.16.06.2009 in favour of plaintiff no.2

and her husband plaintiff no.1(A).

4. On service of summons, defendant no.2 entered

appearance and filed written statement opposing suit and

stating that plaintiffs were not entitled for any relief as

suit schedule properties were subject matter of family

arrangement between plaintiffs and defendants. On

05.09.1995 plaintiff no.1 had consented and affixed her

left thumb impression.

5. It was also stated that plaintiff no.2 was not

entitled to any share as she was married about 26 years

prior to filing of suit and about 18 years prior to date of

amendment to Section 6 of Hindu Succession Act.

Defendants also denied that plaintiffs were cultivating suit

property.

6. Based on pleading, trial court framed following

issues.

1. Whether the plaintiffs prove that they have got share in the suit properties?

2. Whether the plaintiffs prove that they are entitled for partition and separate possession?

3. Whether the defendants prove that the suit is not maintainable?

4. What order or decree?

7. Thereafter plaintiffs got themselves examined

as PWs.1 and 2 and got marked Exhibits P1 to P.3.

Defendant no.1 was examined as DW.1 and another

witness as DW.2. Exs.D1 to 11 were marked. They also

examined Srishail Siddappa Palabhavi as CW.1.

8. On consideration, trial court decreed plaintiffs'

suit in part and held plaintiff no.2 and defendant no.2

were entitled for 5/9 t h and 4/9 t h share respectively.

9. Aggrieved thereby, defendant no.1 filed appeal.

First appellate court allowed his appeal, set-aside

judgment and decree, remanded the matter to trial court

with a direction to implead plaintiff no.1(A), take on

record additional pleadings and evidence adduced by

parties.

10. On remand, plaintiff no.1(A) was impleaded and

following additional issues were framed:

Additional issues

1. Whether the plaintiffs prove that, deceased plaintiff No.1 - Padmawwa executed a

registered will dated 16.06.2009 in favour of her daughter plaintiff No.2 - Smt.Balawwa and her husband plaintiff No.1A - Bharamappa Appanna Patil?

2. Whether the plaintiffs prove that, in view of the provisions of S.6 of Hindu Succession Act, 1956 the deceased plaintiff No.1 - Padmawwa and her daughter plaintiff No.2 - Balawwa are entitled for 1/3 r d share each in the suit properties?

3. Whether the plaintiffs prove that, the plaintiff No.2 and 1A together entitled for 1/3 r d share of deceased Padmawwa in the suit properties?"

11. After recording evidence and considering

material on record, trial court answered issue nos. 1 and

2 and addl. issue no.2 partly in affirmative; while issue

no.3, addl. issue nos.1 and 3 were answered in negative;

issue no.4 was answered by decreeing suit in part and

holding plaintiff entitled for partition and separate

possession of 1/4 t h share and defendant entitled for 3/4 t h

share in suit schedule properties.

12. Aggrieved by same, plaintiffs no.1(A) and

plaintiff no.2 filed R.A.55/2016 on several grounds. It was

contended that judgment and decree of trial court was

contrary to law facts and evidence on record and passed

without framing proper issues. It was contended that trial

court failed to appreciate oral and documentary evidence

in proper perspective. It was contended that registration

of Will attracted sanctity about due execution, which was

not accorded by trial court. Even though, execution and

attestation was established, trial Court erred in ignoring

Will. By giving undue importance to deposition of PW.2

and ignoring evidence of PW.3, trial court passed

impugned judgment and decree. It failed to consider that

after straining of relationship, testator was residing with

plaintiffs, who were taking care of her. As plaintiff no.2

was also a coparcener and entitled to share in suit

schedule properties execution of Will in her favour could

not be treated as suspicious.

13. Based on contentions, first appellate Court

formulated following points for consideration:

i) Whether the Appellants/plaintiffs proves that there is necessity of interference into the Judgment and Decree passed by the Trial Court?

ii) Whether the Appellants/plaintiffs proves whatever the grounds urged in the Appeal Memo?

iii) What Order or Decree?

14. On consideration, first appellate court allowed

appeal in part, set-aside the judgment and decree of trial

court and decreed suit granting ½ share in suit properties

to plaintiff no.2 Balawwa. Aggrieved thereby this second

appeal is preferred.

15. Sri. M.H.Patil, learned counsel for appellant

submitted that judgment and decree passed by both

courts was contrary to evidence on record. Without re-

appreciation of evidence, First Appellate Court modified

judgment and decree passed by trial court and share

allotted to plaintiffs was illegal and capricious. It was

submitted that plaintiff no.2 being daughter of defendant

no.1 had filed suit for partition in the year 1996 when her

father was alive and she had no right to claim partition.

As such, suit was premature, without cause of action But,

trial court decreed suit in part without appreciating same.

Learned counsel submitted that following substantial

questions would arise for consideration in this appeal:

1) Whether trial court was justified in holding plaintiff no.2 entitled for 1/4 t h share in suit properties?

2) Whether first appellate court was justified in granting ½ share to plaintiff no.2 in violation of provisions of Hindu Succession Act?

3) Whether the judgment and decree passed by the courts was contrary to amendment to Hindu Succession Act?

16. From above submissions, relationship of

plaintiffs and defendants is not in dispute. While plaintiff

claimed equal share in suit schedule property as a

coparcener, she is also claiming exclusive right under a

registered will dated 16.06.2009 stating that

Smt. Padmawwa bequeathed her share in suit properties

in favour of plaintiffs.

17. On the other hand defendants contend that

plaintiff no.2 ceased to be member of joint family upon

her marriage prior to 1995. By virtue of family

arrangement effected between plaintiff no.1 and

defendant on 05.09.1995, defendant no.1 was allotted 4

acres of land towards western side in R.S.No.196/2 and as

plaintiff no.1 had consented to arrangement, mutations

were effected in favour of defendant. Though plaintiff no.2

objected to mutations, Tahasildar, Athani after hearing

parties rejected objections and certified mutations.

Plaintiffs had not challenged said order. Plaintiffs claim

under Will was disputed by alleging same was got created.

18. In order to establish their case, plaintiff no.2

was examined as PW-1, plaintiff no.1(A) as PW-2, scribe

of Will as PW-3 and one attestor as CW-1. Will was

marked as Ex.P.1, signatures of testator, scribe and

attestor were marked as Exs.P.1(a) to P.1(c).

19. Trial court basically considered plaintiffs claim

under Will. It observed that though Will was registered, it

was required to be established in accordance with Section

68 of Evidence Act. On perusal of Ex.P.1-Will, it was found

to be attested by two attesters. But attester examined to

prove its execution denied his signature. As other

attesting witness had died, it observed that plaintiffs were

required to establish Will as per Section 71 of Evidence

Act and examination of scribe would not satisfy

requirements of law.

20. Thereafter, trial court proceeded to consider

case of defendant. It observed that as plaintiff no.2 got

married prior to amendment of Section 6 of Hindu

Succession Act, she would not be a coparcener and could

not maintain suit for partition during lifetime of her

father. Referring to Ex.D.11 - M.E.no.1737 entered in

pursuance of partition deed - Ex.D.10 on 05.09.1995, it

held that defendants had not only established partition,

but also that it was given effect to. It observed that

parties belonged to Bombay-Karnataka area governed by

Mithakshara law. Therefore, it held clause in Ex.D.10

creating clog on right of plaintiff no.1 - Padmawwa to get

share equal to that of son as being contrary to law. On

said reasoning and applying ratio laid down by Hon'ble

Supreme Court in Prakash and others V/s Phulavathi

and others reported in (2016) 2 SCC 36, wherein it has

held that plaintiff no.2 was entitled for notional partition

and she would get 1/4 t h and defendant no.1 would get

remaining 3/4 t h share.

21. First appellate court also was of the view that

attesting witness to Ex.P1-Will, turning hostile to

plaintiffs' case was fatal to plaintiffs' claim under Will and

examination of scribe would not cure defect, despite being

registered document. It however, proceeded to hold that

mere production of partition deed-Ex.D10 was insufficient

to establish family arrangement. It held family

arrangement was not proved and as there was no prior

partition, parties were entitled to share in joint family

properties. Taking note of death of plaintiff no.1 and

defendant no.1 during pendency of proceedings, it applied

ratio of decision of Hon'ble Supreme Court in Danamma

@ Suman Surpar and another V/s Amar and others

reported in (2018) 3 SCC 343, wherein daughter would

be entitled to equal rights in ancestral property and

proceeded to hold plaintiff no.2 as entitled for half share

in suit property.

22. In view of the authoritative pronouncement by

Hon'ble Supreme Court in Vineeta Sharma V/s Rakesh

Sharma and others reported in (2020) 9 SCC 1, it has

been clarified by a larger Bench of Hon'ble Supreme Court

that a daughter would be entitled for equal rights as that

of a son in joint family properties, especially, as plaintiffs'

claim under Will having been negated and death of

defendant no.1 having removed obstacle to plaintiff to

claim partition and both courts having held plaintiff is

entitled for relief of partition of apportioned shares.

Apportionment by trial court being contrary to decision in

Vineeta Sharma's case, wherein ratio in Prakash's case

(supra) has been overruled, apportionment of shares by

first appellate court would be fully justified.

In the result, no substantial questions of law arises

for consideration herein. Appeal is hereby dismissed.

SD/-

JUDGE

Psg/CLK