Shri. Prakash S/O. Basavaprabhu ... vs Smt. Shalini W/O. Mallikarjun ...
2022 Latest Caselaw 5797 Kant

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           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH
        DATED THIS THE 31ST 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.100092/2021 (PAR/POS)
BETWEEN:
SHRI PRAKASH S/O BASAVAPRABHU CHARATE,
AGE: 70 YEARS, OCC. AGRICULTURE,
R/O BELLAD BAGEWADI-591305,
TQ: HUKKERI, DIST. BELAGAVI.
                                                 ... APPELLANT
(BY SRI SMT.SUNANDA P.PATIL, ADV.)

AND :
1.    SMT.SHALINI W/O MALLIKARJUN CHINIVAR,
      AGE: 61 YEARS, OCC: HOUSEHOLD,
      R/O CCB NO.21, BASAVA COLONY
      BELAGAVI-590010, TALUK & DIST: BELAGAVI.

2.     SMT.SUNITA W/O SANGAMESH AJJAMPURSHETRU
       AGE: 57 YEARS, OCC. HOUSEHOLD,
       R/O. DOOR NO.635, P.J.EXTENSION,
       7TH MAIN, 7TH CROSS, DAVANAGERE-577001.

3.    SMT.ROOPA W/O SHANKAR NANDENNAVAR,
      AGE 48 YEARS, OCC. HOUSEHOLD,
      R/O P.NO.47, MAHABALESHWAR NAGAR,
      BELAGAVI-591108, TALUK & DIST: BELAGAVI.
                                           ... RESPONDENTS
(BY SHREEVATSA S.HEGDE & SOURABH HEGDE ADVTS)

      THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
READ WITH ORDER XLI RULE 1 OF THE CODE OF CIVIL
PROCEDURE, PRAYING THIS COURT TO SET ASIDE THE JUDGMENT
AND DECREE DATED 23.04.2021 PASSED IN O.S.NO.130/2018 ON
THE FILE OF THE SENIOR CIVIL JUDGE, HUKKERI, DECREEING THE
SUIT FILED FOR PARTITION, SEPARATE POSSESSION AND
INJUNCTION.
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      THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
H.T.NARENDRA PRASAD, J DELIVERED THE FOLLOWING:

                              JUDGMENT

This appeal is filed by the defendant under Section

96 read with Order XLI Rule 1 of the Code of Civil

Procedure, 1908 challenging the judgment and decree

dated 23.04.2021 passed in O.S.No.130/2018 by the

Senior Civil Judge Hukkeri ("the Trial Court" for short),

whereby the Trial Court has granted 1/4th share each to

the plaintiffs and defendant in the suit schedule

properties.

2. For the sake of convenience, parties herein

are referred with the original ranks occupied by them

before the Trial Court.

3. The case of the plaintiffs is that one Sri

Basavaprabhu is the propositus. Plaintiffs are the

daughters and defendant is the son of said Sri

Basavaprabhu. The suit schedule properties are the joint

family properties. Since there was no partition by metes

and bounds, plaintiffs requested the defendant to effect

partition of the suit schedule properties. The defendant

has postponed to effect partition on one or the other

pretext. Hence, the plaintiffs have filed a suit for partition

and separate possession.

4. On service of summons, defendant appeared

before the Trial Court through his counsel and filed

written statement. He has admitted the relationship

between the parties, death of the propositus Sri

Basavaprabhu on 09.03.1995 and death of their mother

Smt.Anusuya on 30.06.2017. He has contended that at

the time of death of their mother Smt.Anusuya there was

30 tolas of gold with her, the plaintiffs colluding with

each other have taken all the golden ornaments of their

mother. The said 30 tolas of gold ornaments are not

included in the suit schedule properties as the same is

movable property of their family. Hence, the suit for

partial partition is not maintainable.

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

Trial Court has framed the following issues:

"1. Whether the plaintiffs prove that themselves and the defendant constitute Hindu Undivided family?

2. Whether the plaintiffs further proves that the suit schedule properties are their ancestral as well as joint family properties?

3. Whether the defendant proves that all their family properties not brought in common hotec-potch thus, the suit for partial partition, not maintainable?

4. Whether the defendant further proves that the plaintiffs were relinquished their right in his favour as contended in para No.8 of his written statement?

5. Whether the plaintiffs are entitled for their legitimate share in the suit schedule properties by metes and bounds?

6. What order or decree?

6. To prove the case of the plaintiffs, plaintiff

No.3 herself examined as PW.1 and got marked 9

documents as Exs.P.1 to P.9. Defendant No.1 himself

examined as DW.1 and other two witnesses are

examined as DWs.2 and 3 and got marked 12 documents

as Exs.D.1 to D.12.

7. On appreciation of oral and documentary

evidence on record, the Trial Court has answered issue

Nos.1, 2 and 5 in the affirmative and negatived issue

Nos.3 & 4. Accordingly the Trial Court has decreed the

suit of the plaintiffs by granting 1/4th share to each of the

plaintiffs and defendant in the suit schedule properties.

Being aggrieved by the same, the defendant filed this

appeal.

8. Smt.Sunanda P.Patil learned counsel

appearing for the appellant has contended that, at the

time of death of their mother Smt.Anusuya, she had 30

tolas of gold ornaments and other bank deposits, the said

movable properties i.e., 30 tolas of gold and bank

deposits have not been included in the suit schedule

properties. Hence the suit for partial partition is not

tenable. She further contended that since there was an

earlier partition, the suit is not maintainable.

9. Per contra learned counsel Sri Sourabh Hedge

appearing for respondents has contended that there was

no partition earlier of any kind. The defendant has failed

to prove that there was a partition among the family

members and he has also failed to prove that their

mother Smt.Anusuya had 30 tolas of gold and fixed

deposit in the Bank. The Trial Court after considering all

these aspects has rightly decreed the suit of the

plaintiffs. Hence, he prays for dismissal of the appeal.

10. Heard learned counsel appearing for the

parties and perused the appeal papers.

11. Having heard the arguments, the following

point would arise for our consideration.

"Whether the judgment and decree passed by the Trial Court is perverse, erroneous and arbitrary under the facts and circumstances of the case?"

12. It is not in dispute that, Sri Basavaprabhu was

the propositor of the family and Smt.Anusuya was his

wife. The plaintiffs are the daughters and the defendant

is the son of Sri Basavaprabhu and Smt.Anusuya. It is

also not in dispute that, the suit schedule properties are

joint family properties. It is also not in dispute that

Basavaprabhu died on 09.03.1995 and his wife

Smt.Anusuya died on 30.06.2017. The only contention

raised by the defendant is that, the mother of plaintiffs

and defendant i.e., Smt.Anusuya had 30 tolas of gold

with her and the amount deposited in the Bank and post

office. Except making the said averments in the written

statement, no documents have been produced to prove

the same and also not filed any application to include

such properties. In respect of earlier partition is

concerned, no documents have been produced to prove

the same. Since the defendant has failed to prove the

same, the Trial Court has rightly answered issue Nos.3 &

4 in the negative. The Trial Court after considering the

evidence of the parties and the materials available on

record has rightly decreed the suit of the plaintiffs by

allotting 1/4th share each to the plaintiffs and defendant

in the suit schedule property.

13. When the statute itself has given right to the

daughters by virtue of amendment to Section 6 of the

Hindu Succession (Amendment) Act, 2005 and in the

light of dictum of the Hon'ble Apex Court in the case of

Vineeta Sharma Vs. Rakesh Sharma & others

reported in AIR 2020 SC 3717, the Trial Court is

justified in granting a decree. Therefore, there is no error

in the judgment and decree passed by the trial Court.

Hence, the appeal being devoid of merit is accordingly

dismissed.

14. In view of the dismissal of the appeal, application

in I.A.No.1/2021 does not survive for consideration and the

same stands disposed off.

Sd/-

JUDGE

Sd/-

EM                                      JUDGE