Karnataka High Court
Yallappagouda S/O Basangouda ... vs Susavva W/O Yallappa Kubasad on 23 March, 2022
Bench: H.T.Narendra Prasad, Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23rd 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.100070/2015
BETWEEN:
1. YALLAPPAGOUDA
S/O BASANGOUDA RAYANGOUDAR,
SINCE DEAD. BY L.Rs.
1(a) SMT. DRAKSHAYANI
W/O YALLAPPAGOUDA RAYANAGOUDRA
AGE 64 YRS., OCC: HOUSEWIFE
R/O HARALAKATTI, TQ. SAVADATTI
DIST. BELAGAVI 591 126
1(b) SMT. REKHA, W/O KALLAPPA UGARAGOL
AGE 40 YRS., OCC: HOUSEWIFE,
R/O HARALAKATTI, TQ. SAVADATTI,
DIST. BELAGAVI 591 126
1(C) SMT. MANJULA, W/O SHIVAKUMAR ANAD,
AGE 38 YRS., OCC: HOUSEWIFE
R/O HARALAKATTI, TQ. SAVADATTI
DIST. BELAGAVI 591 126.
.. APPELLANTs
(BY SRI. SHIVARAJ S. BALLOLLI AND SRI. RAMESH I. ZIRALI, ADVS.)
AND:
1. SUSAVVA W/O YALLAPPA KUBASAD,
AGE:MAJOR,
OCC:H/W and AGRICULTURE,
2
R/O: BASAPUR, TQ: NAVALAGUND,
DIST: DHARWAD-580 001.
2. GANGAVVA W/O MALLAPPA BETAGERI,
AGE:MAJOR, OCC:H/W and AGRICULTURE,
R/O: 4TH CROSS, MANIKANTHA NAGAR,
HEBBALLI AGASI, DHARWAD, DIST: DHARWAD.
3. MEENAKSHAVVA W/O RAMAPPA KITTALI,
AGE:MAJOR, OCC:H/W and AGRICULTURE,
R/O: HALAKUSUGAL, TQ: NAVALAGUND,
DIST: DHARWAD-580 001.
4. TEJANAGOUDA
S/O YALLAPPAGOUDA RAYANGOUDAR,
AGE:MAJOR, OCC:AGRICULTURE,
R/O: HARALAKATTI,
TQ: SAUNDATTI-591 126, DIST: BELGAVI.
5. MAHANTESHGOUDA
S/O YALLAPPAGOUDA RAYANGOUDAR,
AGE:MAJOR, OCC:AGRICULTURE,
R/O: HARALAKATTI, TQ: SAUNDATTI-591 126,
DIST: BELAGAVI.
6. SHIVANAGOUDA
S/O YALLAPPAGOUDA RAYANGOUDAR,
AGE:MAJOR, OCC:AGRICULTURE,
R/O: HARALAKATTI, TQ: SAUNDATTI-591 126,
DIST: BELAGAVI.
7. DYAVANAGOUDA S/O YALLAPPAGOUDA POLESHI,
AGE:MAJOR, OCC:AGRICULTURE,
R/O: HARALAKATTI, TQ: SAUNDATTI-591 126,
DIST: BELAGAVI.
8. BASANGOUDA S/O RENAKEGOUDA POLESHI,
AGE:MAJOR, OCC:AGRICULTURE,
R/O: HARALAKATTI, TQ: SAUNDATTI-591 126,
DIST: BELAGAVI.
9. RAMAPPA S/O RUDRAPPA KITTALI,
AGE:MAJOR, OCC:AGRICULTURE,
R/O: HALAKUSUGAL, TQ: NAVALAGUND,
3
DIST: DHARWAD - 580 001.
10 . BASAPPA S/O RAMAPPA KITTALI,
AGE:MAJOR, OCC:AGRICULTURE,
R/O: HALAKUSUGAL, TQ: NAVALAGUND,
DIST: DHARWAD - 580 001.
11 . UMESH S/O RAMAPPA KITTALI,
AGE:MAJOR, OCC:AGRICULTURE,
R/O: HALAKUSUGAL, TQ: NAVALAGUND,
DIST: DHARWAD - 580 001.
12 . MALLIKARJUN S/O RAMAPPA KITTALI,
AGE:MAJOR, OCC:AGRICULTURE,
R/O: HALAKUSUGAL, TQ: NAVALAGUND,
DIST: DHARWAD - 580 001.
13 . YALLAVVA W/O MALLIKARJUN AREGOUDAR,
AGE:MAJOR, OCC: H/W, AGRICULTURE,
R/O: ARE KUREHATTI, TQ: NAVALAGUND,
DIST: DHARWAD - 580 001.
14 . JAYASHREE W/O TEJANAGOUDA RAYANAGOUDAR,
AGE:MAJOR, OCC: HOUSEHOLD WORK
R/O: HARALAKATTI, TQ: SAUNDATTI,
DIST: DHARWAD - 580 001.
.. RESPONDENTS
(BY SRI. MRUTYUNJAYA TATA BANGI, ADV. FOR R1 AND R2.
SRI. SANTOSH B. MALAGOUDAR, ADV. FOR R3, R9 TO R13.
SRI. MRUTYUNJAYA S. HALLIKERI, ADV. FOR R4 TO R6 AND R14.
R7 AND R8 ARE SERVED.)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE
1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED
29.11.2014 PASSED IN O.S.NO.36/2010 ON THE FILE OF THE
SENIOR CIVIL JUDGE, SAUNDATI, PARTLY DECREEING THE SUIT
FILED FOR DECLARATION PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
RAJENDRA BADAMIKAR, J., DELIVERED THE FOLLOWING:
4
JUDGMENT
This appeal is filed under Order XLI Rule 1 read with
Section 96 of the Code of Civil Procedure, 1908 (hereinafter
for brevity referred to as 'CPC') by the appellant who was
defendant No.1 before the trial Court being aggrieved by the
judgment and decree passed in OS No.36/2010 whereby the
leaned Senior Civil Judge, Saundatti, has decreed the suit by
granting 1/8th share to each plaintiffs in the suit schedule
properties.
2. For the sake of convenience, the parties herein
are referred to the original ranks occupied by them before
the trial Court.
3. The plaintiffs being the sisters of defendant
No.1/appellant have filed a suit for partition and separate
possession of their share claiming that the suit schedule
properties are the ancestral joint family properties.
Defendant No.1 had also filed a suit for declaration in
respect of one of the suit schedule properties in Sy.No.54/2
claiming exclusive right over the said property. According
to the plaintiffs, all the suit schedule properties are the
ancestral joint family properties but defendant No.1
contended that his father has relinquished Sy.No54/2 in his
favour and he has become the exclusive owner of the suit
schedule property.
4. The trial Court, after appreciating the oral and
documentary evidence, has decreed the suit O.S.36/2010
by awarding 1/8th share each to the plaintiffs and O.S.
No.21/2010 filed by defendant No.1 claiming exclusive right
came to be dismissed.
5. Defendant No.1/the appellant herein has filed
this appeal challenging only the judgment and decree
passed in O.S. No.36/2010 and he did not challenge the
judgment and decree passed in O.S. No.21/2010. Hence,
the judgment and decree in O.S.No.21/20210 has attained
finality.
6. We have heard the learned counsels for the
appellants and the respondents.
7. Learned counsel for the appellants would
contend that Sy.No.54/2 is relinquished by his father in his
favour and he has become exclusive owner of the said
property. Alternatively, he contended that the married
daughter does not fall under the definition of 'family' and
as such, the plaintiffs cannot claim any share in
Sy.No.54/2. He also tried to urge the ground regarding the
Will executed in favour of his son i.e. defendant No.4.
However, his son has not challenged any of the findings nor
cross-objections were filed. Hence, the respondents are
not entitled to question the genuiness of the Will as held by
the trial Court.
8. Per contra, learned counsel for the respondents
would support the judgment and decree of the trial court
contending that under Section 8 of the Hindu Succession
Act, 1956, the plaintiffs and defendant No.1 being the
brothers and sisters are entitled for equal share and the
question of applying the definition of 'family' does not arise
at all. Hence, he would seek for dismissal of the appeal by
confirming the judgment and decree passed by the trial
Court.
9. Having heard the arguments and perusing the
records, it is evident that the plaintiffs are the sisters of
defendant No.1. There is no serious dispute of the fact that
Sy.No.54/2 is granted in favour of father of the plaintiffs
and defendant No.1 in the year 1978 under the Karnataka
Village Offices Abolition Act, 1961. Defendant No.1 is
asserting that his father has relinquished the said land in
his favour in the year 1964 itself. But it is evident that the
land is re-granted only in the year 1978 itself and the
question of relinquishment prior to re-grant does not arise
at all. Hence, the trial court has considered this aspect and
negativated the claim of defendant No.1.
10. Apart from that, defendant No.1 has also filed a
suit in O.S. No.21/2010 seeking declaration of his exclusive
title over the said suit schedule property and the said suit
came to be dismissed. The said judgment and decree is
not at all challenged before this Court and as such, it has
reached the finality and now it is not open for defendant
No.1/appellant to re-agitate the same ground once again
which has reached its finality.
11. The word 'Family' is not defined in the
Karnataka Village Offices' Abolition Act, 1961, and as such,
the word 'family' defined under the Karnataka Land
Reforms Act, is required to be considered. Section 2(12)
of Karnataka Land Reforms Act defines 'family' which reads
as under:
"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;
The major sons and unmarried daughters are
excluded from the definition of the family. If this definition
is taken into consideration, even defendant No.1 does not
fall within the definition of the 'family', as admittedly, he is
the major son. As such, he cannot claim any exclusive
interest on the ground that married daughter is excluded
from the definition of 'family' and in that event, he also
stands excluded. As such, the devolution of interest is
governed under Section 8 of the Hindu Succession Act and
both the sons and daughters, being Class-I heir are entitled
for equal share. The trial Court has considered these
aspects and has accordingly granted equal share to the
plaintiffs who are the sisters of defendant No.1. The ground
of execution of the Will cannot be challenged by the
appellant as he is not the beneficiary under the Will and his
son-defendant No.4, is the beneficiary who has not
challenged the finding on the Will in any appellate forum.
12. Under these circumstances, the appeal itself is
misconceived and the learned Senior Civil Judge, Saundatti,
has considered all these aspects in proper perspective and
arrived at a just decision by decreeing the suit by awarding
1/8th share to each plaintiffs. The judgment and decree
passed by the trial Court does not suffer from any
perversity, illegality or infirmity so as to call for interference
by this Court. Hence, the appeal being devoid of any merits
needs to be rejected.
13. Accordingly, we proceed to pass the following
order.
The appeal is dismissed by confirming the judgment
and decree dated 29.11.2014 passed by the learned Senior
Civil Judge, Saundatti in O.S. No.36/2010.
Parties are directed to bear their own costs in this
appeal.
Sd/-
JUDGE
Sd/-
JUDGE
kmv
