Karnataka High Court
Mahaveer S/O Bhupal Hosur And Anr vs Basagond S/O Somanna Biradar And Ors on 14 December, 2023
-1-
NC: 2023:KHC-K:9236
RSA No. 200091 of 2019
C/W RSA No. 200406 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.200091 OF 2019 (PAR &
SEP/POS)
C/W
REGULAR SECOND APPEAL NO.200406 OF 2022(PAR &
SEP/POS)
IN RSA NO.200091/2019:
BETWEEN:
SOMANNA S/O HANAMATH BIRADAR
AGE: 41 YEARS, OCC: AGRICULTURE
R/O: YATNAL TQ. AND DIST. VIJAYAPUR-586101.
...APPELLANT
(BY SRI RAVI B PATIL, ADVOCATE)
Digitally signed AND:
by SHILPA R
TENIHALLI
Location: HIGH 1. BASAGOND S/O SOMANNA BIRADAR
COURT OF AGE: 59 YEARS, OCC: AGRICULTURE
KARNATAKA
R/O: YATNAL TQ. & DIST. VIJAYAPUR-586101.
2. HANMANTH S/O SOMANNA BIRADAR
AGE: 69 YEARS, OCC: AGRICULTURE
R/O YATNAL TQ. & DIST. VIJAYAPUR
R/O CHIK ASANGI TQ. B. BAGEWADI
DIST: VIJAYAPUR-586203.
3. BHIMANNA S/O SOMANNA BIRADAR
AGE: 65 YEARS, OCC: AGRICULTURE
R/O: VILLAGE YATNAL TQ & DIST
VIJAYAPUR-586101.
-2-
NC: 2023:KHC-K:9236
RSA No. 200091 of 2019
C/W RSA No. 200406 of 2022
4. DANAKKA @ DANAWWA
W/O MALLAPPA KALAMADI
AGE: 79 YEARS, OCC: HOUSEHOLD & AGRI.
R/O: VILLAGE TIKKUNDI,
TQ:JATH, DIST: SANGALI MAHARASHTRA-416406.
...RESPONDENTS
(BY SRI NARENDRA M. REDDY ADV. FOR R1
SRI G.G.CHAGASHETTI, AND SRI I.R. BIRADAR, ADVS.
FOR R2; R3 AND R4 ARE SERVED)
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE PASSED BY THE FIRST
APPELLATE COURT IN R.A.NO.81/2016 DATED 16.01.2019
PASSED BY THE PRINCIPAL DISTRICT JUDGE AT VIJAYAPUR,
THEREBY SET ASIDE THE JUDGMENT AND DECREE OF THE
TRIAL COURT IN O.S. NO. 57/2010 DATED 12.04.2016 PASSED
BY THE COURT OF II ADDL. SENIOR CIVIL JUDGE AT BIJAPUR
INSOFAR AS RELATES TO THE ITEM NO.8 & 9 OF THE
SCHEDULE 'B' PROPERTIES AND CONSEQUENTIALLY TO
DISMISS THE SUIT OF THE RESPONDENT NO.1/PLAINTIFF IN
RESPECT OF ITEM NO.8 & 9 OF THE SCHEDULE 'B' PROPERTY
IN ENTIRETY, IN THE INTEREST OF JUSTICE AND EQUITY.
IN RSA NO.200406/2022:
BETWEEN:
1. MAHAVEER S/O BHUPAL HOSUR
AGE: 47 YEARS, OCC: AGRICULTURE
R/O: KAGANERI VILLAGE, TQ: JATH,
DIST: SANGLI, MAHARASTRA-416406.
2. MANOHAR S/O BHUPAL HOSUR
AGE: 45 YEARS, OCC:AGRICULTURE,
R/O: KAGANERI VILLAGE, TQ: JATH,
DIST: SANGLI, MAHARASHTRA-416406.
...APPELLANTS
(BY SRI SACHIN M MAHAJAN, ADVOCATE)
AND:
-3-
NC: 2023:KHC-K:9236
RSA No. 200091 of 2019
C/W RSA No. 200406 of 2022
1. BASAGOND S/O SOMANNA BIRADAR
AGE: 62 YEARS, OCC: AGRICULTURE
R/O: YATNAL TQ. & DIST. VIJAYAPURA-586104.
2. HANAMANTH S/O SOMBANNA BIRADAR
AGE: 72 YEARS, OCC: AGRICULTURE
R/O YATNAL TQ. & DIST. VIJAYAPURA-586104.
3. BHIMANNA S/O SOMBANNA BIRADAR
AGE: 67 YEARS, OCC: AGRICULTURE
R/O: YATNAL TQ. & DIST. VIJAYAPURA-586104.
4. DANAKKA @ DANAWWA
W/O MALLAPPA KALAMADI
AGE: 81 YEARS,
OCC: HOUSEHOLD WORK & AGRICULTURE
R/O: TIKKUND, TQ. JATH, DIST. SANGALI,
MAHARASHTRA-416406.
5. SOMANNA S/O HANMANTH BIRADAR
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: YATNAL TQ. & DIST. VIJAYAPURA-586104.
...RESPONDENTS
(BY NARENDRA M REDDY ADV. FOR R1;
RAVI B PATIL ADV. FOR R2 AND R5
R3 IS SERVED
VIDE ORDER DATED 06/12/2022
NOTICE TO R4 IS DISPENSED WITH)
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET-
ASIDE THE JUDGMENT AND DECREE DATED: 12.04.2016
PASSED BY THE LEARNED II ADDL. SENIOR CIVIL JUDGE AT
VIJAYAPUR IN OS NO.57/2010, AND THE JUDGMENT AND
DECREE DATED: 16.01.2019 PASSED LEARNED PRINCIPAL
DISTRICT JUDGE AT VIJAYAPUR, IN RA NO.81/2016, AND
DISMISS THE SUIT FILED BY THE PLAINTIFF WITH COSTS
THROUGHOUT, BY ALLOWING THE APPEAL, IN THE INTEREST
OF JUSTICE AND EQUITY.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
-4-
NC: 2023:KHC-K:9236
RSA No. 200091 of 2019
C/W RSA No. 200406 of 2022
COMMON JUDGMENT
Defendant No.4 in O.S.No.57/2010 on the file of the
learned II Additional Senior Civil Judge, Vijayapur (hereinafter
referred to as the 'Trial Court' for brevity) has preferred RSA.
No.200091/2019 being aggrieved by the judgment and decree
dated 12.04.2016 decreeing the suit of the plaintiff for partition
and separate possession of the schedule properties and holding
that the plaintiff and defendant Nos.1 and 2 are entitled for
5/16th share and defendant No.3 is entitled for 1/16th share in
the suit properties, which was confirmed in R.A.No.81/2016 on
the file of learned Principal District Judge, Vijayapura
(hereinafter referred to as the 'First Appellate Court' for
brevity) vide judgment dated 16.01.2019.
1.1. The appellants in RFA No.200406/2022 are
impugning the judgment and decree passed by the Trial Court
confirmed by First Appellate Court, which are referred to above
on the ground that they are the purchasers of one of the items
of the properties from defendant No.2 under two different sale
deeds.
-5-
NC: 2023:KHC-K:9236
RSA No. 200091 of 2019
C/W RSA No. 200406 of 2022
2. For the sake of convenience, parties are referred to
as per their status and rank before the Trial Court.
3. Brief facts of the case are that the plaintiff filed the
suit against the defendant Nos.1 and 2 contending that one
Hanumanth Biradar was the propositor and Somanna Biradar is
his son. Somanna Biradar had three sons and a daughter and
they constituted a joint family. The family was having joint
family properties, which are described in a schedule 'B'
appended to the plaint. Schedule 'B' appended to the plaint
described in all 9 items of agricultural properties situated at
Yatnal village: Bijapur Taluk, Kagnari village: Jath taluk,
Kontanbabalad village: Jath taluk (hereinafter referred to as the
'schedule properties' for brevity). It is stated that the schedule
properties are the joint family properties, in which, all the
members are entitled for share. It is stated that propositor and
his son Somanna Biradar died intestate. It is contended that
plaintiff and defendant Nos.1 and 2 being the sons of Somanna
Biradar are entitled for equal share in the property.
4. During the pendecy of the suit, plaint was
amended, impleading defendant No.3, being the daughter of
Somanna Biradar and defendant No.4 - Somanna S/o
-6-
NC: 2023:KHC-K:9236
RSA No. 200091 of 2019
C/W RSA No. 200406 of 2022
Hanamanth Biradar, who is the son of defendant No.1. It is
contended that defendant No.4 purchased two items of
properties under different sale deeds, but they are not his self
acquired properties. It is contended that defendant No.4
purchased the properties from out of the joint family funds and
therefore, plaintiff and defendants are entitled for equal share.
Accordingly, the plaintiff sought for decreeing the suit for
partition and separate possession by metes and bounds.
5. Defendant No.1 filed the written statement denying
the contentions taken by the plaintiff. It is contended that item
Nos.2 and 3 in the schedule are his self acquired properties,
which he acquired from out of the amount gifted by his parents
and the plaintiff and other defendants are not entitled for any
share. It is also contended that he has purchased survey
No.32/2 measuring 5.07 acres of Yatnal village by investing his
own funds. He is doing independent business of selling Jawar
and he is also doing livestock business and earning his
independent income. It is also contended that the ancestral
properties left by Somanna are barren lands and were not
yielding any income.
-7-
NC: 2023:KHC-K:9236
RSA No. 200091 of 2019
C/W RSA No. 200406 of 2022
6. It is further contended that item No.8 i.e., survey
No.97 measuring 4 hectors and 29 acres of land situated at
Kontewwana-Babalad was purchased by Somanna, the father of
the plaintiff and defendants under the registered sale deed
dated 03.11.2003 and it was not the joint family property.
Therefore, he prays for dismissal of the suit of the plaintiff with
costs.
7. Defendant No.2 filed the memo adopting the written
statement filed by defendant No.1.
8. Defendant No.4 filed the written statement.
Denying the contentions taken by the plaintiff and also
contended that he had purchased survey No.156/4 measuring 4
acres situated at Yatnal village under the registered sale deed
dated 24.04.2009 for a valuable consideration. He was having
independent income as he was cultivating the lands belonging
to others on lease and he was also doing milk vending business
and out of his own savings, he purchased another land bearing
R.S.No.156/04 of Yatnal village. Therefore, both these items of
the properties are his self acquired properties in which other
parties are not having any right, title or interest. Therefore, he
-8-
NC: 2023:KHC-K:9236
RSA No. 200091 of 2019
C/W RSA No. 200406 of 2022
prayed for dismissal of the suit in respect of his self acquired
property, in the interest of justice.
9. On the basis of these pleadings, the Trial Court
framed the following issues:
1) Whether the plaintiff proves that suit properties are
the joint family ancestral properties himself and the
defendants?
2) Whether the plaintiff further proves that the he is
entitled for 1/3rd share in the suit properties?
3) Whether the defendants prove that suit is bad for
non-joinder of necessary parties i.e., for not
impleading their sister Danawwa @ Danakka?
4) Whether the defendant No.1 proves that suit item
No.2,3, 8 and land bearing Sy.No. 34/3 and 32/2 are
Yatnal village, are his self acquired properties as
stated in his written statement?
5) Whether defendants further prove that ancestral
land left by Somanna and property purchased in the
name of plaintiff and defendant No.2 jointly under
sale deeds at Kenganavi village in Jath Taluka are
liable for parties in between plaintiff, defendants and
Danakka?
6) What order or decree?
-9-
NC: 2023:KHC-K:9236
RSA No. 200091 of 2019
C/W RSA No. 200406 of 2022
10. The plaintiff examined himself as PW.1 and got
examined PWs.2 and 3 and also got marked Exs.P1 to P26 in
support of his contentions. Defendant No.1 examined as DW.1.
Defendant No.4 examined as DW.2 and they got marked
Exs.D1 to D29 in support of their defence. The Trial Court after
taking into consideration all these materials on record, passed
the impugned judgment and decree, decreeing the suit of the
plaintiff holding that the plaintiff and defendant Nos.1 and 2 are
entitled for 5/16th share each in the suit properties and
defendant No.3 is entitled of 1/16th share.
11. Being aggrieved by the same, defendant Nos.1 and
4 have preferred R.A.No.81/2016. The First Appellate Court on
re-appreciation of the materials on record, dismissed the
appeal, confirming the impugned judgment and decree passed
by the Trial Court. Being aggrieved by the same, defendant
No.4 has preferred RSA No.200091/2019.
12. The appellants in RSA No.200406/2022 have
preferred this appeal contending that they are not the parties
either before the Trial Court or before the First Appellate Court.
They are the purchasers of the item No.6 of schedule property
- 10 -
NC: 2023:KHC-K:9236
RSA No. 200091 of 2019
C/W RSA No. 200406 of 2022
under two different sale deeds. Defendant No.2 before the
Trial Court sold the said item of property in their favour under
two sale deeds dated 26.03.2010. Even though the appellants
have purchased the properties on 26.03.2010, the plaintiff filed
the suit on 11.06.2010 claiming for share in the said property,
without referring to the sale deeds executed by defendant
No.2. Even though defendant No.2 was notified and
represented by his advocate, he never filed the written
statement asserting the sale deeds executed in favour of the
appellants. Therefore, it is contended that it was a collusive
suit between the members of the family to cause loss to the
appellants. Hence, the appellants have sought for permission
to prosecute the appeal.
13. Learned counsel for the appellant/defendant No.4
contended that item Nos.8 and 9 were purchased under two
different sale deeds dated 03.11.2003 and 24.04.2009 and the
same were his self acquired properties. No specific issue was
framed placing the burden on defendant No.4 to prove the
same. In spite of that, the Trial Court and the First Appellate
Court have proceeded to decree the suit allotting the share in
favour of the plaintiff and defendant Nos.1 to 3 without taking
- 11 -
NC: 2023:KHC-K:9236
RSA No. 200091 of 2019
C/W RSA No. 200406 of 2022
into consideration the defence taken by defendant No.4.
Therefore, the Trial Court as well as the First Appellate Court
have committed an error and accordingly prays for allowing the
appeal in RSA No.200091/2019.
14. The appellants in RSA No.200406/2022 contended
that even though the appellants have purchased item No.6
under two different sale deeds dated 26.03.2010, they were
not arrayed as parties before the Trial Court. The plaintiff got
marked the sale deeds as per Exs.P12 and 13, but, they have
not thought it fit to implead the purchasers as parties.
Defendant No.2, who is the seller has also not raised the plea
that he sold the property in favour of the appellants herein.
Therefore, it was a collusive suit between the parties and
hence, the matter requires to be remanded to the Trial Court to
enable the appellants to raise the specific plea.
15. Per contra, learned counsel for the respondents
opposing the appeals submitted that the parties have admitted
that there existed a joint family of which Hanmanth Biradar was
the propositor. He having son by name Somanna Biradar, who
is the father of the plaintiff and defendant Nos.1 to 3. The
- 12 -
NC: 2023:KHC-K:9236
RSA No. 200091 of 2019
C/W RSA No. 200406 of 2022
schedule properties are the family properties that were
acquired by Hanmanth Biradar and succeeded by his son
Somanna. Even though item Nos.8 and 9 were purchased in the
name of defendant No.4, he is also a member of the joint
family and is claiming right through defendant No.1. He has
not placed any material to substantiate his contention that he
was having independent income and from his independent
income, he purchased the said properties. Therefore, there is
no merit in the contention taken by defendant No.4 and hence,
prays for dismissal of the appeal in RSA No.200091/2019.
16. Learned counsel also contended that even though
the appellants in RSA No.200406/2022 are the purchasers of
item No.6 in two bits, the sale deeds in question were marked
by the plaintiff before the Trial Court as per Exs.P12 and P13.
The plaintiff had not disputed the fact that the appellants have
purchased those properties from defendant No.2. But, since
those properties are the joint family properties, the appellants
can only seek equity before the final decree Court and cannot
contest the suit independently. Hence, he prays for dismissal
of the appeal in RSA No.200406/2022 in the interest of justice.
- 13 -
NC: 2023:KHC-K:9236
RSA No. 200091 of 2019
C/W RSA No. 200406 of 2022
17. Learned counsel for respondent/plaintiff supported
the impugned judgment and decree passed by the Trial Court
as well as the First Appellate Court on the ground that even
though defendant No.1 had taken a specific defence before the
Trial Court, the impugned judgment and decree were not
challenged by him. Hence, he prays for dismissal of both the
appeals.
18. Heard learned counsel Sri Ravi B. Patil for the
appellant/defendant No.4 in RSA No.200091/2019 and for
respondent Nos.2 and 5 in RSA No.200406/2022, learned
counsel Sri Sachin M. Mahajan for the appellants/purchasers in
RSA No.200406/2022, learned counsel Sri Narendra M. Reddy
for respondent No.1/plaintiff in RSA No.200091/2019 and
learned counsel Sri G.G.Chagashetti for respondent
No.2/defendant No.1 in RSA No.200091/2019.
19. This Court, vide order dated 07.11.2023 framed the
following substantial question of law in RSA No.200091/2019
while admitting the appeal:
"Whether the Trial Court and the First
Appellate Court were right in ignoring the
contention taken by the appellant-defendant No.4
- 14 -
NC: 2023:KHC-K:9236
RSA No. 200091 of 2019
C/W RSA No. 200406 of 2022
with regard to land in Sy.No.156/4 and Sy.No.97
which were acquired by defendant No.4 from out
of his own earnings and in the absence of any
material to substantiate the contention of the
plaintiff that they constitute the joint family
property out of nucleus?"
20. This Court, vide order dated 12.12.2022 framed the
following substantial questions of law in RSA No.200406/2022
while admitting the appeal:
1. Whether the decree granted by both the Courts
in respect of item No.6 suffers from perversity
and is contrary to Exs.P12 and P13, which are
admittedly the sale deeds executed by defendant
No.2 much prior to filing of the suit and
therefore, in the absence of clinching evidence
let in by the plaintiffs indicating that item No.6,
which is an agricultural land situated at Jatt in
Maharashtra State was purchased by utilizing the
joint family corpus erred in granting 1/3rd share
to the plaintiffs in item No.6 also?
2. Whether both the Courts erred in not noticing
that the present suit appears to be collusive suit
between the plaintiffs and defendant No.2 and
the same is forthcoming from the tenor of memo
- 15 -
NC: 2023:KHC-K:9236
RSA No. 200091 of 2019
C/W RSA No. 200406 of 2022
tendered by defendant No.2 adopting the written
statement filed by defendant No.1?
My answer to the above substantial questions of law
are in the 'Negative' for the following:
REASONS
21. It is the specific contention of the plaintiff that
Hanmanth Biradar was the propositor. He was having a son by
name Somanna, who is the father of the plaintiff and defendant
Nos.1 to 3 and they constituted a joint family. The relationship
between the parties is not disputed. It is also not disputed that
defendant No.4 is the son of defendant No.1. There is no
dispute that item Nos.1 to 7 were the properties that were held
by the joint family.
22. Defendant No.4 was subsequently impleaded in the
suit. He has taken a defence that item Nos.8 and 9 were
purchased by him under two different sale deeds dated
03.11.2003 and 24.04.2009 and they were his self acquired
properties. Defendant No.4 examined himself as DW.2. The
only evidence led by him is that he was cultivating lands of
others on lease and was doing milk vending business and thus,
he was earning independent income. Except this oral evidence
- 16 -
NC: 2023:KHC-K:9236
RSA No. 200091 of 2019
C/W RSA No. 200406 of 2022
led by defendant No.4, there is absolutely no material to accept
his contention. Once it is proved that there existed a joint
family and it was having properties, which are considered as
joint family properties, the contention taken by defendant No.4,
who is the member of such joint family that item Nos.8 and 9
are his self acquired properties from his independent income
cannot be accepted. In the absence of specific materials in that
regard, the Trial Court and the First Appellate Court after
consideration and reconsideration of the materials on record,
recorded concurrent findings of fact that they are also the joint
family properties. Hence, I do not find any reason to form a
different opinion.
23. Even though the learned counsel for the appellants
contended that no specific issue was raised placing burden on
defendant No.4 to prove his contention, issue No.1 is framed
placing burden on the plaintiff to prove that the suit properties
are the joint family properties. When all the parties to the suit
admit existence of joint family, which is having several
properties, which are considered as joint family properties, the
initial burden placed on the plaintiff to prove issue No.1, got
discharged. The onus shifts on defendant No.4, who took up a
- 17 -
NC: 2023:KHC-K:9236
RSA No. 200091 of 2019
C/W RSA No. 200406 of 2022
specific plea that item Nos.8 and 9 are his self acquired
properties. Defendant No.4 has not discharged the said burden
nor rebutted the presumption that the properties are the joint
family properties. Therefore, I do not find any merit in the
contention taken by the appellant in RSA No.200091/2019.
Accordingly, I answer the substantial question of law
formulated in this appeal in favour of the respondent and
against the appellant.
24. In RSA No.200406/2022, the contention of the
appellants is that they are the purchasers of item No.6 in two
bits under sale deeds dated 26.03.2010 from defendant No.2.
Defendant No.2 even though appeared before the Trial Court
represented by his advocate, has not filed any independent
written statement. He adopted the written statement filed by
defendant No.1.
25. It is pertinent to note that defendant No.2 has not
raised the plea regarding selling of item No.6 in favour of the
appellants herein under the registered sale deeds. However,
the plaintiff had produced copies of the sale deeds and got
marked as Exs.P12 and P13. Learned counsel for the
- 18 -
NC: 2023:KHC-K:9236
RSA No. 200091 of 2019
C/W RSA No. 200406 of 2022
respondent/plaintiff fairly concedes that he is not disputing the
sale deeds executed by defendant No.2 in favour of the
appellants, which are marked as Exs.P12 and P13. Under such
circumstances, the only remedy that is available to the
appellants is to seek equity before the final decree Court while
drawing the final decree and to ask for allotting item No.6,
which was purchased by them, to the share of defendant No.2,
who is the vendor under the sale deeds. Therefore, I do not
find any merit in the contention taken by the appellants to
remand the matter to the Trial Court for fresh consideration. In
view of the above, I answer substantial questions of against the
appellants and in favour of respondent No.1.
26. It is found that defendant No.3 is the daughter of
Somanna Biradar. The Trial Court in its judgment dated
12.04.2016 allotted only 1/16th share in her favour while
awarding 5/16th share to the plaintiff and defendant Nos.1 and
2. In view of amendment to Section 6 of the Hindu Succession
Act and in view of the categorical finding of the Hon'ble
Supreme Court in the case of Vineeta Sharma Vs. Rakesh
- 19 -
NC: 2023:KHC-K:9236
RSA No. 200091 of 2019
C/W RSA No. 200406 of 2022
Sharma & Ors.1, I am of the opinion that allotment of share to
each parties is to be re-determined. Therefore, I am of the
opinion that the plaintiff and defendant Nos.1 to 3 are entitled
for 1/4th share each in the schedule properties. Accordingly, I
proceed to pass the following:
ORDER
A. RSA No.200091/2019 is allowed in part only in
respect of allotment of share is concerned.
B. RSA No.200406/2022 is dismissed.
C. The judgment and decree dated 12.04.2016 passed
in O.S.No.57/2010 on the file of the learned II
Additional Senior Civil Judge at Vijayapur and the
judgment and decree dated 16.01.2019 passed in
RA.A.No.81/2016 on the file of the learned Principal
District Judge at Vijayapur are hereby modified as
under.
(2020) 9 SCC 1
- 20 -
NC: 2023:KHC-K:9236
are entitled for 1/4th share each in the
schedule properties.
(ii) The appellants in RSA No.200406/2022
are entitled for equity in the final decree
proceedings in respect of item No.6
described in the schedule.
D. Office is directed to draw decree accordingly.
Registry to send back the Trial Court and the First
Appellate Court records along with copy of this judgment and
decree.
Sd/-
JUDGE
BH/SRT
