Karnataka High Court
Mahantesh Irappa @ Veerappa ... vs Padmavathi W/O Madiwalappa ... on 16 August, 2023
Bench: Anant Ramanath Byarhj
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RFA No. 4152 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 4152 OF 2012 (PAR-)
BETWEEN:
1. SHRI. MAHANTESH IRAPPA
@ VEERAPPA MELAVANKI,
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O: NEGINHAL, TQ: BAILHONGAL,
DIST: BELGAUM-591102.
2. SHRI. DEMAPPA IRAPPA
@ VEERAPPA MELAVANKI,
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O: NEGINHAL, TQ: BAILHONGAL,
DIST: BELGAUM-591102.
3. SMT. GIRIJA W/O KALMESH KOTE,
AGE: 26 YEARS, OCC: HOUSEHOLD WORK,
R/O: TURAMARI, TQ: BAILHONGAL,
Digitally
signed by
SAROJA
DIST: BELGAUM-591102.
SAROJA HANGARAKI
HANGARAKI Date:
2023.08.22
15:12:42 -
0700 4. KUMARI. GADIGEWWA
D/O IRAPPA @ VEERAPPA MELAVANKI
AGE: 21 YEARS, OCC: HOUSEHOLD WORK,
R/O: NEGINHAL, TQ: BAILHONGAL,
DIST: BELGAUM-591102.
5. SMT. KASTURI
W/O IRAPPA @ VEERAPPA MELAVANKI
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O: NEGINHAL, TQ: BAILHONGAL,
DIST: BELGAUM-591102.
...APPELLANTS
(BY SRI.LAXMAN T MANTAGANI, ADVOCATE)
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RFA No. 4152 of 2012
AND:
1. SMT. PADMAVATHI
W/O MADIWALAPPA MELAVANKI,
SINCE DECEASED BY HIS LRS.
VIDE ORDER DATED. 20.01.2023.
1.A DEEPA
W/O KALMESH SHIGIHALLI
AGE: 41 YEARS, OCC: HOUSEHOLD,
R/O: TURAMARI, TQ: KITTUR,
DIST: BELAGAVI-591128.
1.B LAXMI
W/O SHIVANAND KUDARI
AGE; 37 YEARS, OCC: HOUSEHOLD,
R/Plaintiff MURGOD, TQ: BAILHONGAL,
DIST: BELAGAVI-591119.
1.C BASAVARAJ
S/O MADIVALAPPA MELAVANKI
AGE: 40 YEARS, OCC: PRIVATE WORK,
R/O: KURUGUND, TQ: BAILHONGAL,
DIST: BELAGAVI-591102.
2. SHRI. BASAVARAJ
S/O MADIWALAPPA MELAVANKI,
AGE: 27 YEARS, OCC: AGRICULTURE,
R/O: KURUGUND, TTQ: BAILHONGAL,
DIST: BELGAUM-591102.
3. SMT. DEEPA W/O KALMESH SHIGIHALLI,
AGE: 25 YEARS, OCC: HOUSEHOLD WORK,
R/O: TURAMARI, TQ: BAILHONGAL,
DIST: BELGAUM-591102.
4. KUMARI. LAXMI
D/O MADIWALAPPA MELAVANKI,
AGE: 21 YEARS, OCC: HOUSEHOLD WORK,
R/O: KURUGUND, TQ: BAILHONGAL,
DIST: BELGAUM-591102.
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RFA No. 4152 of 2012
5. SMT. FAKIRAWWA
W/O GHATIGEPPA MELAVANKI,
AGE: 91 YEARS, OCC: HOUSEHOLD WORK,
R/O: NEGINAHAL, TQ: BAILHONGAL,
DIST: BELGAUM.
6. SHRI. BALAPPA YASHAWANTAPPA MARALAKKANAVAR
AGE: 76 YEARS, OCC: AGRICULTURE,
R/O: NEGINAHAL, TQ: BAILHONGAL,
DIST: BELGAUM-591102.
7. SHRI. MAHAVEER VEERAPPA MELAVANKI,
AGE: 92 YEARS, OCC: AGRICULTURE,
R/O: NEGINAHAL, TQ: BAILHONGAL,
DIST: BELGAUM-591102.
...RESPONDENTS
(BY SRI. BALAGOUDA PATIL, ADVOCATE FOR R2 TO R4;
R1(A-C) ARE SAME AS R2 TO R4;
APPEAL AGAINST R5 ABATED;
NOTICE TO R6 AND R7 SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 READ WITH ORDER XLI RULE 1 OF CPC 1908, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 14.09.2012
PASSED IN O.S.NO.7/2011 BEFORE THE COURT OF THE
SENIOR CIVIL JUDGE, BAILHONGAL BY ALLOWING THIS
APPEAL WITH COST IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS REGULAR FIRST APPEAL COMING ON FOR FURTHER
ARGUMENTS, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
The unsuccessful defendants in a suit for partition,
which was decreed in terms of the judgment and decree
passed in O.S.No.7/2011 on the file of the Senior Civil
Judge, Bailhongal, are before this Court, in an appeal
under Section 96 of Code of Civil Procedure.
2. The plaintiffs' suit for partition and separate
possession claiming half share in suit 'A' and 'B' schedule
properties is decreed. There are nine items of agricultural
lands in suit 'A' schedule property and residential houses
and vacant sites in suit 'B' schedule properties.
3. The genealogy of the parties is as under:
Ghatigeppa Irappa Melavanki (died) (propositus)
Fakirawwa (Wife)
Irappa Madiwalappa (died)
Kasturi Padmavathi (wife)
Mahantesh Demappa Girija Gadigewwa
Basavaraj Deepa Laxmi
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4. Admittedly, one Ghatigeppa was the propositus.
He died in 1984 and he is survived by his wife Fakirawwa
and sons Irappa and Madiwalappa. Madiwalappa died in
2007. Wife of Madiwalappa and the three children of
Madiwalappa and also the wife of the propositus
Ghatigeppa namely Fakirawwa filed the suit for partition.
Fakirawwa died during the pendency of the suit. She died
intestate. The suit is filed against the wife and children of
Irappa the son of the propositus Ghatigeppa.
5. The defendants resisted the suit on the premise
that the partition has already taken place in the family in
the year 1986-87. It is also the contention of the
defendants that Item No.2 property bearing Survey
No.285/2+3A measuring 1 acres 01 gunta is purchased by
defendant No.2 under registered sale deed dated
08.06.2005. It is further pleaded that the sale deed is
executed by the plaintiffs No.1 and 2. It is also the
contention of the defendants that the property bearing
Sy.No.46/2B/1A measuring 5 acres 16 guntas was
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purchased on 10.07.1989 by defendant No.1. It is the case
of the defendants that the said property was later
subdivided as Sy.Nos.46/9, 46/10, 46/11 and 46/12 and
these properties having been purchased in the year 1989,
after the partition of family properties in 1986-87, the
plaintiffs cannot claim any right over it.
6. The defendants also took a stand that the
plaintiffs have availed loan in respect of the properties
allotted to their share pursuant to the partition and have
acted upon partition of 1986-87. Thus it is urged that the
plaintiffs are not entitled to claim further share in the suit
schedule properties.
7. It is also their contention that the husband of
plaintiff No.1 during his lifetime has transferred properties
allotted to his share in the name of his wife and children
as could be seen from ME No.4776 marked at Ex.D3.
Accordingly, they have prayed for dismissal of the suit.
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8. The trial Court has held that the partition of
1986-87 as pleaded by the defendants is not established
and subsequently has decreed the suit as prayed for.
9. Aggrieved by the aforementioned judgment and
decree, the defendants are in appeal.
10. Heard Sri.Laxman T Mantagani, learned counsel
for the appellants and Sri.Balagouda Patil, learned counsel
for the respondents.
11. Sri.Laxman T Mantagani, the learned counsel
appearing for the appellants would contend that the trial
Court has not appreciated the oral and documentary
evidence which unequivocally established the partition of
1986. It is also his contention that the very fact that
plaintiffs No.1 and 2 have sold property in the year 2005,
allotted to them in the partition of 1986-87, to defendant
No.2, would establish the fact that there was a previous
partition. He also refers to the record of rights produced
by the plaintiffs which according to him clearly
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demonstrated the partition pleaded by the defendants. It
is his contention that the entries in the property records
reveal separate enjoyment and not joint enjoyment of the
properties.
12. It is also his contention that the husband of
plaintiff No.1 has sold property bearing Sy.No.46/2B
measuring 2 acres out of total extent of 4 acres. Reliance
is placed on the sale deed marked at Ex.D.24. It is urged
that in the said sale deed the husband of plaintiff No.1 has
clearly mentioned the remaining portion of the said survey
number on northern side is bounded by the property of
plaintiff No.1 which according to him is a proof of
partition.
13. Learned counsel for the respondent
Sri.Balagouda Patil, would contend that;
a. The partition of 1986-87 is not established by the
defendants. Admittedly all the properties except
the property bearing Survey No.285/2+3A, are
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the properties inherited after the death of the
propositus Ghatigeppa Irappa Melavanki.
b. The properties purchased in 1988 are purchased
after utilizing the joint family income and
defendant No.2 has not produced any evidence to
show that he had independent source of income
to purchase the property bearing Survey
No.285/2+3A;
c. Though the husband of plaintiff No.1, has
executed a registered sale deed under Ex.D24,
on 11.05.2001, the sale deed is executed in
respect of undivided share of the property, as
such, execution of the sale deed cannot not be
construed as proof of partition of properties in
the branch of plaintiffs and defendants;
d. Plaintiffs No.2 and 3 have executed the
registered sale deed alienating undivided share in
the properties and as such, alienation of the
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property in survey No.285/2+3A cannot be
construed as an admission of the alleged partition
of 1986-87.
14. This Court has considered the contentions
raised at the bar and also perused the records. The
following point arises for consideration:
i. Whether the trial Court is justified in holding
that there is no partition of the suit schedule
properties between the branch of the
plaintiffs and defendants?
15. The admitted fact is, the husband of plaintiff
No.1 has executed a registered sale deed in respect of
Survey number 46/2B/1 under a registered sale deed
dated 11.05.2001. The said sale deed reveals that, the
sale deed is executed in respect of 2 acres of land out of
the total extent of five acre. The boundaries mentioned in
the sale deed would reveal that, on the northern side,
defendant No.1 owns the remaining portion in the same
survey number. It is one indication of the fact that,
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aforementioned property was divided between the
plaintiffs' branch and defendants' branch.
16. It is also required to be noticed that, the
plaintiffs No.1 and 2 have sold survey No.285/2+3A under
registered sale deed dated 08.06.2005. The said sale
deed was executed in the name of defendant No.2. Even
if the recital of the said sale deed is perused, it is not
forthcoming that plaintiffs No.1 and 2 are executing the
sale deed in respect of undivided share as urged by the
learned counsel for the respondents. Though plaintiffs
No.3 and 4 are not parties to the said sale deed, it can be
noticed that plaintiffs No.3 and 4 were minors when the
sale deed was executed and the said property was
inherited after the demise of the father of the plaintiffs
No.2 and 3. The share in the property belonging to
plaintiffs No.3 and 4 being undivided share along with
plaintiffs No.1 and 2, it can be safely concluded that the
mother of plaintiff No.1, acting as the guardian of plaintiffs
No.3 and 4 has sold the property. Though survey
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No.285/2 + 3A is included in the suit schedule, the
plaintiffs have not questioned the execution of the
registered sale deed referred to above in favour of
defendant No.2 in respect of item No.2 property.
17. It is also relevant to note that, PW1 in her
cross-examination, in categorical terms has admitted that
the partition has taken place in respect of residential
house and one house bearing No.238/2 is allotted to the
share of her husband of the plaintiff No.1 and Survey
No.238/1 is allotted to the share of defendant No.1.
18. As far as four properties namely properties
bearing No.1313, 1314, 1077/34 and 1078/34, which are
vacant sites, plaintiffs have produced documents, namely
property extracts of those properties. Those property
extracts would reveal the name of defendant No.2.
19. The presumption under the Hindu law is,
properties standing in the name of an individual is the self
acquired property. The person, who asserts that the
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properties are joint family properties, has to establish that
they are the joint family properties, by adducing rebuttal
evidence. No such rebuttal evidence is placed before the
Court. The property extracts would reveal that those are
the properties standing in the name of defendant No.2.
Under the circumstances, trial Court erred in granting
decree for partition in respect of 'B' schedule properties.
20. On overall appreciation of the materials on
record, this Court finds that the partition has taken place
as averred in paragraph No.3 of the written statement
filed by the defendants. In the said paragraph No.3, the
defendants have revealed as to what are the properties
allotted to the share of the plaintiffs and what are the
properties allotted to the share of the defendants. The
record of rights, produced by the plaintiffs would also
support the stand taken by the defendants in the written
statement. Under the circumstances this Court is of the
view that the judgment and decree passed by the trial
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Court granting a decree for partition and separate
possession of the properties are untenable.
21. Though learned counsel for the respondents
would urge that the plaintiffs have not been able to
produce any documents relating to the alleged partition of
1986-87, on overall appreciation of the evidence on record
and also by taking into consideration the fact that the
husband of plaintiff No.1 and plaintiffs No.2 and 3 have
sold two properties and also by taking into consideration
that some of the properties were exclusively transferred in
the name of the plaintiffs at the instance of husband of
plaintiff No.1, this Court is of the view that, there is
already a partition in the branch of plaintiffs and
defendants.
22. For the aforementioned reasons, this Court is of
the view that the judgment and decree of the trial court
are liable to be set aside.
23. Accordingly, the following:
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ORDER
i. Appeal is allowed.
ii. The judgment and decree dated
14.09.2012 passed by the Senior Civil
Judge, Bailhongal, in O.S.No.07/2011, are
set aside.
iii. Consequently suit in O.S.No.07/2011
dismissed.
iv. However, it is made clear that the
properties which are admitted to be the
properties of the plaintiffs as per the
stand taken in the written statement and
those properties which are not yet sold by
the husband of plaintiff No.1 and the
property not sold by plaintiffs 1 and 2,
shall belong to the plaintiffs.
Sd/-
JUDGE
sh upto para 12
gab - para 13 to end
CT-PA
..
