Shivanand S/O Sangappa Kerur vs Srujan S/O Shivanand Kerur
2023 Latest Caselaw 6062 Kant

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                                                           NC: 2023:KHC-D:9975-DB
                                                           RFA No. 100527 of 2018




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                               DATED THIS THE 30TH DAY OF AUGUST, 2023
                                                PRESENT
                           THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                                                  AND
                           THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
                            REGULAR FIRST APPEAL NO. 100527 OF 2018 (PAR)
                      BETWEEN:

                      1.   SHIVANAND S/O. SANGAPPA KERUR,
                           AGE: 50 YARS, OCC: TEACHER,
                           R/O: SHIRUR, TQ & DIST: BAGALKOT.
                      2.   SANGAPPA S/O. LINGASHETTAPPA KERUR,
                           AGE: 85 YEARS, OCC: AGRICULTURE,
                           R/O: SHIRUR, TQ & DIST: BAGALKOT.
                      3.   SIDLINGAPPA S/O. SANGAPPA KERUR,
                           AGE: 45 YEARS, OCC: SERVICE,
                           R/O: SHIRUR, TQ & DIST: BAGALKOT.
                           NOW AT S.D.M. ENGINEERING COLLEGE,
                           DHAVALAGIRI, DHARWAD.
                                                                 -     APPELLANTS
                      (BY SRI. P.G. CHIKKANARAGUND, ADVOCATE)
                      AND:
                      1. SRUJAN S/O. SHIVANAND KERUR,
MANJANNA                 AGE: 13 YEARS, OCC: STUDENT,
E
Digitally signed by
                      2.   SRUSHTI D/O. SHIVANAND KERUR,
MANJANNA E                 AGE: 10 YEARS, OCC: STUDENT,
Date: 2023.09.15
15:53:51 +0530             RESPONDENT NO.1 AND 2 ARE MINORS
                           R/BY THEIR GUARDIAN MOTHER RESPONDENT NO.3.

                      3.   SMT. ARATI @ UMADEVI, W/O. SHIVANAND KERUR,
                           AGE: 39 YEARS, OCC: HOUSEWIFE,
                           R/O: SHIRUR, TQ & DIST: BAGALKOT.
                                                                -    RESPONDENTS
                      (BY SRI. MRUTYUNJAY S. HALLIKERI, ADVOCATE FOR R1 TO R3)

                            RFA FILED UNDER SEC. 96 OF CPC., AGAINST THE JUDGMENT
                      AND DECREE DTD 30.08.2018 PASSED IN O.S.NO.09/2013 ON THE
                      FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, BAGALKOT, PARTLY
                      DECREEING THE SUIT FILED FOR PARTITION.
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                                          NC: 2023:KHC-D:9975-DB
                                          RFA No. 100527 of 2018




    THIS APPEAL, COMING ON FOR FINAL DISPOSAL, THIS DAY,
SREENIVAS HARISH KUMAR J., DELIVERED THE FOLLOWING:

                             JUDGMENT

The judgment and decree dated 30.08.2018 in O.S. No.

9/2013 on the file of Prl. Sr. Civil Judge, Bagalkot is assailed by

the defendants.

2. The plaintiffs 1 and 2 are the children and plaintiff no.3 is

the wife, defendant no.2 is the father defendant no. 3 is the

brother of the first defendant. Defendant no.3 was

subsequently impleaded in the suit. The plaintiffs' suit is for

partition and separate possession of their 3/4th share in plaint

schedule 'B' properties consisting of three items. The plaintiffs

stated that schedule 'B' properties belonged to joint family and

they were all ancestral in nature. In a family arrangement

between defendants 1 and 2, the said properties fell to the

share of the first defendant. Plaintiff no.3 was never looked

after well by the first defendant and he was insisting her to

bring cash and gold from parents' house. When she refused,

the first defendant and other family members assaulted her on

07.11.2011 and this led to her living separately with her

children, approaching the police station and some matrimonial

NC: 2023:KHC-D:9975-DB RFA No. 100527 of 2018

disputes. When the plaintiff demanded to effect partition of

properties, it was refused and hence the suit came to be filed.

3. All the three defendants filed their individual written

statements, but their common contention of defence was that

there was a partition of the family properties between the

second defendant and his sons on 05.12.2011, and in the said

partition, the first defendant was allotted four acres 15 guntas

of land on the Eastern side out of total extent of 8 acres 35

guntas in sy. No. 707/1 of Shirur village, Bagalkot taluk and

district, i.e., item no.1 of schedule 'B'. Items 2 and 3 of

schedule 'B' were allotted to the second defendant and hence

they became his exclusive properties in which plaintiffs cannot

claim share. Subsequently the first defendant gifted the first

item of schedule 'B' to his brother Siddalingappa, i.e.,

defendant no.3, by executing a registered gift deed dated

31.12.2012. The reason for making gift was that first

defendant could not properly manage the property allotted to

him. In this view, there remained no property in which the

plaintiffs could lay claim for partition.

NC: 2023:KHC-D:9975-DB RFA No. 100527 of 2018

4. After assessing the evidence, the trial court partly

decreed the suit holding that the plaintiffs were entitled to 3/4th

share in item no.1 of schedule 'B' and dismissed the suit insofar

as items 2 and 3 were concerned. The conclusions reached by

the trial court are that defendants were able to prove the

partition dated 05.12.2011 in which the first defendant was

allotted item no.1 of 'B' schedule and 2 and 3 were allotted to

the second defendant. Though the plaintiffs pleaded that items

2 and 3 were given to the share of the first defendant, they

failed to give proof in this regard. PW1 admitted registered

partition deed 05.12.2011 and in this view the plaintiffs could

claim partition only in first item. The trial court did not accept

the plaintiffs' stand that the revenue records of items 2 and 3

belonged to first defendant because certified copy of the khata

extract of items 2 and 3 stood in the name of the first

defendant earlier and then it was changed to the name of

second defendant. In this regard it was held that because of

partition, the plaintiffs cannot be allowed to say that items 2

and 3 also belonged to respondent no.1.

5. In regard to the gift deed in favour of defendant no.3, it

is the finding of the trial court that the reason assigned by the

NC: 2023:KHC-D:9975-DB RFA No. 100527 of 2018

first defendant for making gift in favour of his brother is not

disclosed in Ex.D.9, the gift deed and therefore the gift did not

appear to be a genuine transaction and further that it was also

made during the pendency of the suit.

6. Sri P.G. Chikkanaragund, learned counsel for the

appellants argues that the trial court has erred in decreeing the

suit. The suit was not maintainable during the lifetime of

second defendant because the suit properties were his self

acquisitions. Second defendant was a deed writer and he

purchased the suit properties from his own income. In fact,

PW1 has clearly admitted in the cross examination that the

properties were acquired by the second defendant. Later on,

the second defendant made a family arrangement of his self

acquisitions as evidenced by Ex.D.1. The first item of the

schedule property was given to the share of first defendant. He

held that property exclusively for himself as his separate

property and therefore made a gift of the same in favour of his

brother, i.e., defendant no.3. As first item of schedule property

was separate property of the first defendant, the plaintiffs

cannot claim partition in that property also. Ignoring all these

aspects of the matter, if the trial court were to partially decree

NC: 2023:KHC-D:9975-DB RFA No. 100527 of 2018

the suit, it was nothing but a failure to appreciate the evidence

properly and apply the law. Hence he argued for allowing the

appeal.

7. Sri Marutyunjaya S. Hallikeri, learned counsel for the

respondents argues that the trial court has rightly come to

conclusion to decree the suit in respect of first item of the

schedule property having noticed that it was an ancestral

property. He refers to Ex.D.1 and argues that in the said

partition deed there is a clear recital indicating that all the

properties belonged to the joint family. Even in the written

statements there is an admission that the properties belonged

to joint family. Never it is their case that schedule properties

were the self acquisitions of defendant no.2. It is true that

PW1 has given an admission in the cross examination that the

properties were acquired by second defendant. This admission

was to a suggestion given to her. In this regard his argument

was that because the defendants had not pleaded in the written

statement that none of the properties described in the plaint

schedule was self acquisition, such a suggestion as was given

to PW1 should not be entertained and even though the answer

NC: 2023:KHC-D:9975-DB RFA No. 100527 of 2018

of PW1 appears to be like an admission, it does not stand in the

eye of law.

8. With regard to the gift deed, it is his argument that the

first defendant executed the gift deed in favour of the third

defendant violating the interim order granted by the trial court.

The gift deed came into existence 15 days after institution of

the suit and therefore it was executed just to defeat the interim

order and to see that the plaintiffs should not get any share in

the property. Gift was in violation of law and does not bind the

interest of the plaintiffs. Rightly this aspect has been noticed

by the trial court. Therefore he argued for dismissing the

appeal.

9. In the light of the arguments the points that arise for

consideration are:

I) Has the trial court correctly held that item no.1 of the schedule property belonged to joint family and thereby the plaintiffs are entitled to share?

II) Is the finding of the trial court that the gift does not bind the interest of plaintiffs correct?

     III)     What order?

                                         NC: 2023:KHC-D:9975-DB
                                         RFA No. 100527 of 2018

10. Point No. I: The plaintiffs assert that all the schedule

properties were ancestral and were in the possession of joint

family consisting of themselves and the defendants. The

defendants denied the plaintiffs right to claim partition and

contended that the second defendant acquired them from his

own income. Though the plaintiffs have not produced any

document in proof of their stand that the suit properties

belonged to joint family, they refer to Ex.D.1, the registered

partition deed dated 05.12.2011 wherein it is clearly recited

that agricultural land measuring 8 acres 35 guntas in Sy. No

707/1 of Shirur village and two houses situated in the said

village belonged to the joint family. But the defendants also

rely upon the same partition deed to contend that there is

another recital to the effect that all those properties were

earned by the second defendant. It is true that in Ex.D.1,

there are two such recitals as referred to above and to draw a

clear inference from Ex.D.1, pleadings may be referred to

again.

11. If the plaint is read, it becomes very clear that the

plaintiffs assert that the suit properties were ancestral joint

family properties. This plea in the plaint is denied generally in

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the written statements; there is no specific plea that the second

defendant acquired them from his own income. In fact, there is

an admission in the written statements of all the three

defendants that the properties belonged to joint family. What

is stated in para no. 6 of the written statement of defendant

no.1 is:

"Except this property defendant no.1 is not allotted any property in the partition effected in the earlier joint family properties."

Same recitals are found in para no. 6 of the written statements

of defendant nos.2 and 3. To elaborate, this statement is made

in the written statement in the context of asserting about the

partition that took place on 05.12.2011 between the first and

second defendants which is evidenced by Ex.D.1. This is a

clear admission that suit properties were not the self

acquisitions of the second defendant and they belonged to joint

family.

12. It is true that PW1 has admitted a suggestion in the cross

examination that the properties were acquired by the second

defendant. In regard to this admission it has to be stated that

the defendants cannot take advantage of the same to contend

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NC: 2023:KHC-D:9975-DB RFA No. 100527 of 2018

that the properties did not belong to joint family. For the

reason that defendants have not pleaded specifically in their

written statements that the properties are the self acquisitions

of second defendant, any suggestion given to PW1 dehors their

pleadings, does not stand in the eye of law. In other words,

any suggestion given to a witness in the cross examination by

the opponent contrary to his pleading cannot be taken

advantage by the party making that suggestion. In this view,

the answer given by PW1 does not enure to the benefit of the

defendants.

13. The plaintiffs do not dispute the partition taken place on

05.12.2011 as evidenced by Ex.D.1. The first item of the suit

property was allotted to the first defendant. Noticing this fact

the trial court granted partition to the plaintiffs only in first item

of the suit property and not in items no.2 and 3. This finding

does not appear to be contrary to the evidence and even the

plaintiffs have not challenged the denial of partition to them in

the items no.2 and 3 of the suit property. In this view, the

findings of the trial court are sustainable and hence point no.1

is answered in affirmative.

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14. Point No. II: Ex.P.5 is the copy of the gift deed dated

31.12.2012 executed by the first defendant in favour of the

third defendant in respect of item no.1 of the suit property. As

the finding is that the first item of suit property belonged to the

joint family, the first defendant did not have right to make a

gift of that property in favour of the third defendant affecting

the interest of the plaintiffs. He could have made a gift only in

respect of his share in the said property. Secondly, it is to be

noted here that the suit was filed on 19.12.2012 and that the

trial court granted an interim order to maintain statusquo in

respect of suit schedule properties regarding share of the

plaintiffs. The said order appears to have been communicated

to the defendants and violating the same the first defendant

made a gift in favour of third defendant. Therefore the gift was

in contravention of the interim order and it was made after

institution of the suit. In this view, the gift did not affect the

interest of plaintiffs' share in the first item of the suit property.

In fact, the plaintiffs amended the plaint to state that the gift

did not bind their interest and they sought a relief to that effect

also. While decreeing the suit, the trial court has declared that

the plaintiffs are entitled to 3/4th share in item no.1 of the suit

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properties, that implies that the gift is bad to the extent of their

3/4th share. This finding of the trial court is also correct in our

opinion and therefore point no.II is answered in affirmative.

15. Point No. III: In view of discussion on point nos.I and II,

the appeal has to fail and therefore it is dismissed with costs.

Sd/-

JUDGE

Sd/-

JUDGE BVV