Karnataka High Court
Aravind S/O Sangappa Biradar vs Raju S/O Shrishail Aursang And Ors on 19 December, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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RFA No. 6033 of 2013
IN THE HIGH COURT OF KARNATAKA AT
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
REGULAR FIRST APPEAL No.6033 OF 2013
BETWEEN:
ARAVIND,
S/O SANGAPPA BIRADAR,
AGE 28 YEARS,
OCC:AGRICULTURE,
R/O GUGADADDI, TALUK AND DISTRICT
BIJAPUR-586 101.
...APPELLANT
(BY SRI.B.BHIMASHANKAR., ADVOCATE)
AND:
1. RAJU,
Digitally signed S/O SHRISHAIL AURSANG,
by SACHIN AGE 22 YEARS,
Location: HIGH
COURT OF OCC:COOLIE (HAMAL)
KARNATAKA
R/O NAGTHAN, TALUK AND DISTRICT,
BIJAPUR-586 101.
2. KUMAR ANIL.
S/O SHRISHAIL AURSANG,
AGE 19 YEARS,
OCC:STUDENT
R/O NAGTHAN, TALUK AND DISTRICT,
BIJAPUR-586 101.
3. NEELAMMA
D/O SHRISHAIL AURSANG,
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RFA No. 6033 of 2013
AGE 17 YEARS,
OCC:STUDENT,
4. KUMARI LAKSHMI
D/O SHRISHAIL AURSANG,
AGE 14 YEARS,
OCC:STUDENT
R-3 & R-4 ARE MINORS
THEY ARE REPRESENTED BY MINOR GUARDIAN
AND NEXT FRIEND THEIR NATURAL MOTHER
SMT.MALLAMMA
W/O SHRISHAIL AURSANG
AGE 40 YEARS,
OCC:HOUSEHOLD
R/O NAGTHAN, TALUK AND DISTRICT,
BIJAPUR-586 101.
5. SMT.MALLAMMA
W/O SHRISHAIL AURSANG
AGE 40 YEARS,
OCC:HOUSEHOLD,
R/O NAGATHAN, TALUK AND DISTRICT,
BIJAPUR-586 101.
6. SHRISHAIL,
S/O IRASANGAPPA AURSANG,
AGE 47 YEARS,
OCC:AGRICULTURE
R/O NAGTHAN, TALUK AND DISTRICT,
BIJAPUR-586 101.
7. SMT.SHAMASHADABEGUM,
W/O BABUSA BOUDAWALE
AGE 44YEARS, OCC:HOUSEHOLD,
R/O JORAPUR PETH,
NEAR POLICE GATE No.1
OPP:BABALESHWAR NAKA,
BIJAPUR-586 101.
...RESPONDENTS
(BY SRI.D.P.AMBEKAR, ADVOCATE FOR C/RESPONDENTS
No.1, 2 & 5;
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RFA No. 6033 of 2013
R-3 & R-4 ARE MINORS AND ARE REPRESENTED BY R-5;
R-6 & R-7 ARE SERVED AND UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 96 OF THE CPC,
AGAINST THE JUDGMENT AND DECREE DATED 21.03.2013
PASSED IN O.S.No.51/2011 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE AND J.M.F.C. AT BIJAPUR.
WHEREIN, THE SUIT WAS DECREED.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 03.11.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
1. This appeal arises out of a decree passed by the III
Additional Senior Civil Judge & JMFC, Bijapur (hereinafter
referred to as "the Trial Court", for brevity), by which the
respondents have been held to be entitled for 5/6th share
in the suit property and a declaration has been made that
the sale deeds executed by defendant Nos.1 and 2
(respondent Nos.6 and 7) were not binding on the shares
of the plaintiffs (respondent Nos.1 to 5).
2. This appeal is by the purchaser (Defendant No. 3) of
the land bearing Sy. No.65/2B measuring 2 acres 29
guntas situated at Gugadaddi village of Bijapur Taluk.
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3. Raju and his siblings, along with their mother
Mallamma, instituted a suit for partition and separate
possession seeking 5/6th share (1/6th share each) in the
suit property, which they claimed was ancestral property.
4. It was their case that Shrishail, their father
(defendant No.1/respondent No.6) and their mother
(plaintiff No.5/respondent No.5) had four children i.e.,
plaintiffs/respondent Nos.1 to 4.
5. It was stated that in the year 1994, their grandfather
Irasangappa had partitioned the suit properties and in this
partition, the suit property was allotted to Shrishail. It was
stated that this partition was certified by the revenue
authorities by making mutation entry and it was,
therefore, clear that the suit property was an ancestral
property.
6. It was alleged that Shrishail was addicted to vices,
and he had abdicated his responsibility in favour of
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plaintiffs, and they were not in good terms with Shrishail,
since they opposed his conduct.
7. It was stated that when they demanded their
legitimate share, it was refused and Shrishail stated that
they were not entitled to any share. It was also stated that
despite convening of the panchayat, their father, Shrishail
refused to give them a share and he informed that he had
already sold the suit land to Smt.Shamashadbegum,
defendant No.2.
8. It was stated that immediately thereafter, they
obtained the record of rights and noticed that Smt.
Shamashadbegum's name was entered, and they also
stated that they had, thereafter, approached Smt.
Shamashadbegum and demanded their share, and she
informed that she had sold the suit property to Aravind
i.e., defendant No.3. Hence, they were constrained to file
the suit.
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9. On being summoned, Shrishail, the father of
plaintiffs who entered appearance through their counsel,
did not contest the suit by filing a written statement. Smt.
Shamashadbegum and Aravind entered appearance
through their counsel and only Aravind filed his written
statement, which was adopted by Smt. Shamashadbegum.
10. In this written statement Aravind denied the
assertion that the suit property was the ancestral property
of the plaintiffs. It was also denied that the suit property
had fallen to the share of Shrishail in the family partition
of 1994. It was stated that Shrishail had sold the suit
property under a registered sale deed in 29.06.2002 for a
sum of Rs.1,32,500/- to meet his family needs and had
handed over the possession of the land to Smt.
Shamashadbegum, and her name was also entered in the
revenue records as per M.E. No.1510 on 12.07.2002 itself.
11. It was stated that though the plaintiffs were residing
jointly and though they were aware of the sale, they had
deliberately not challenged the sale in favour of
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Smt.Shamashadbegum and therefore, the suit was barred
by limitation. It was stated that he had purchased the suit
land from Smt. Shamashadbegum under a registered sale
deed dated 17.08.2010 for a valuable consideration of
Rs.2,00,000/- and he had been in possession ever since. It
was stated that neither the plaintiffs nor Shrishail were in
possession, much less in joint possession.
12. It was also stated that Shrishail had purchased
Sy.No.489/1A measuring 1 acre 37 guntas from one
Gadigeppa Maningapa Aursang, in the name of his wife
Mallamma i.e., present plaintiff No.5 and revenue entries
were also effected as per M.R. No.8993 on 16.05.2002.
13. He also stated that Shrishail had purchased
Sy.No.489/1B measuring 1 acre 33 guntas to Rs.47,000/-
from one Malakappa Basappa Aursang on 28.07.2002 and
he had further sold the land bearing Sy.No.65/2B. It was
stated that Shrishail, after selling the land bearing
Sy.No.65/2B, had gone to purchase Sy.No.489/1B on
28.08.2002 from Malakappa and also Sy.No.489/1A in the
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name of his wife and therefore, there was no truth in the
allegation that he was addicted to vices and has
abandoned his family. It was stated that Aravind was a
bona fide purchaser who offered a valuable consideration
and the suit was essentially a collusive suit designed to
extract money from Aravind.
14. On the basis of the pleadings, the Trial Court framed
five issues and one additional issue. In support of their
case, the wife of Sri.Shrishail (plaintiff No.5) was
examined as P.W.1 and seven documents were admitted
in evidence and marked as Exs.P-1 to P-7.
15. The husband of Smt.Shamashadbegum was
examined as D.W.1, while Aravind was examined as
D.W.2. One other witness was examined on their behalf
and in all, 17 documents were admitted in evidence and
marked as Exs.D-1 to D-17.
16. The Trial Court, on consideration of said evidence,
has recorded a finding that the suit property was indeed
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the ancestral property of the plaintiffs and Shrishail, along
with the plaintiffs, had also proved that the sale deeds
executed by Shrishail in favour of Smt. Shamashadbegum
and the subsequent sale deed executed by Shrishail in
favour of Aravind was not binding on the share of the
plaintiffs. The Trial Court has also recorded a finding that
Aravind had not established that he is the bona fide
purchaser of the suit property, and the Trial Court
ultimately decreed the suit.
17. The learned counsel for the appellant submitted that
the Trial Court had committed a serious error in decreeing
the suit. It was contended that though the suit property
bearing Sy.No.65/2B was the separate property of
Shrishail, the Trial Court had erred in treating his separate
property had brought into the hotchpot and had blended
Sy.No.65/2B it into his ancestral property.
18. Learned counsel contended that the suit property
was the separate property of Shrishail and therefore, he
had an absolute right to alienate the same. It is submitted
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that there is no evidence to indicate that the suit property
was the ancestral property and therefore, the Trial Court
was not justified in decreeing the suit.
19. Learned counsel appearing for the plaintiffs, on the
other hand, contended that the suit land belonged to one
Saibanna son of Irasangappa Aursang and on his death,
the property devolved on his sole legal heir, his widow
Neelagangawwa, and since he had no issues, the name of
Neelagangawwa was entered in the revenue records vide
M.E. No.799 on 01.09.1977. It was stated that
Neelagangawwa had bequeathed the suit property in
favour of Irasangappa, and entries were also made in the
revenue records vide M.E. No.1197 (Ex.P-4).
20. It was stated that Irasangappa was the father of
Shrishail and on the death of Neelagangawwa, the request
made in his favour came into effect and he became the
absolute owner of the said property. It was stated that
Irasangappa had two brothers Basappa and Guruningappa.
Irasangappa and his two brothers had effected a partition
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in respect of the properties held by them under M.E.
No.6073 on 20.10.1980 in said Sy.No.17/3, under which -
3 acres 10 guntas bearing No.17/3/1 was allotted to
Irasangappa i.e., father of Shrishail, 4 acres 00 guntas
which was numbered as Sy.No.17/3/2 was allotted to
Basappa, and 5 acres 24 guntas was allotted to
Guruningappa. All these survey numbers were carved out
of Sy.No.17/3.
21. It was stated that Irasangappa i.e., Shrishail's father
had blended Sy.No.17/3/1 which he had gotten in the
partition and he had, thereafter, effected partition
amongst his three sons Shrishail, Shivanand and Saibanna
bearing M.E. No.1253 /Ex.P-5.
22. Under this partition, Shrishail was allotted the suit
i.e., Sy.No.65/2B and the other lands were allotted to his
brothers. It was, therefore, clear that Shrishail's father
Irasangappa had thrown the property into the common
hotchpot and has stated it as the ancestral joint family
property. It was, therefore, submitted that this ancestral
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property could not have been alienated by Shrishail and
the sale made by him would not bind the plaintiffs and
consequently, the Trial Court was justified in decreeing the
suit.
23. In light of the above arguments, the only point that
arises for consideration in this appeal is-
'Whether the Trial Court was justified
in decreeing the suit holding that it
was the ancestral property of the
plaintiffs.'
24. The suit property was the property belonging to
Neelagangawwa and this was established from Ex.P-2,
which is the RTC in relation to Sy.No.65/2B, where the
name of Neelagangawwa has been entered. The plaintiffs
also produced the mutation extract dated 16.03.1991,
whereby the revenue entries were mutated in favour of
Irasangappa i.e., the father of Shrishail under M.E.
No.1197. This exhibit thereby indicates that the suit
property devolved on Shrishail's father on the basis of the
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Will executed by Neelagangawwa and it was therefore,
clear that this property will have to be considered as the
separate property of Irasangappa.
25. It is not in dispute that in a partition effected
between the children of Irasangappa i.e., between
Shrishail and his two brothers, the land bearing
Sy.No.65/2B (measuring 2 acres 20 guntas) was allotted
to Shrishail, and his brothers were allotted Sy.No.17/3/1
and Sy.No.17/3/2 vide Ex.P-5. This particular mutation
entry establishes that Shrishail got the suit property in a
partition between himself and his two brothers.
26. In a partition amongst the children of Irasangappa, it
was open for Shrishail to partition both, his separate as
well as his ancestral property amongst his three sons i.e.,
Shrishail, Shivanand and Saibanna. If, in this partition,
both the ancestral property and the separate properties of
Irasangappa was partitioned, the partition would have to
be construed as a partition of the ancestral property, since
Irasangappa, the grandfather of the plaintiffs, had blended
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his separate property into the hotchpot and had
partitioned it along with his other ancestral property. This,
in fact, is the proposition of law declared by the Apex court
in the case of Goli Eswaraiah1.
27. A partition effected by the grandfather of the plaintiff
between the father of the plaintiffs and their uncles, would
basically, make the property allotted to the father of the
plaintiffs, the ancestral property of the plaintiffs. It is,
therefore, clear that the suit property bearing Sy.No.65/2B
will have to be considered as the ancestral property of the
plaintiffs.
28. It may also be noticed here that even assuming that
Irasangappa, the grandfather of the plaintiffs, had treated
this property as his separate property, on his death,
Shrishail would succeed to the said property and on their
birth in the family, the said property would automatically
become the ancestral property of the plaintiffs. It is,
therefore, clear that the Trial Court was justified in holding
Goli Eswaraiah v. Commissioner of Gift Tax, AIR 1970 SC 1722.
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that the suit property was indeed the ancestral property of
the plaintiffs, and they were entitled to 1/6th share each in
the said properties.
29. The Trial Court has taken note of the partition which
is effected in the year 1994 between Shrishail and his
brothers vide Ex.P-5 and has come to the conclusion that
Shrishail's father had given a waradi that he had acquired
the suit property from his aunt Neelagangawwa. The Trial
Court has also taken notice of the RTC Extracts from the
year 1982-83, wherein it indicated that the property was
standing in the name of Neelagangawwa, and initially,
after her death, the property was standing in the name of
Irasangappa till the partition in the year 1994. The Trial
Court, has therefore, come to the conclusion that these
documents did prove that the suit property was the
ancestral property of the plaintiffs and has rightly held
that they were entitled to the share.
30. In light of the fact that the Trial Court has rightly
come to the conclusion that the suit property was the
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ancestral property of the plaintiffs, the Trial Court was
bound to grant a decree in their favour and the defense
put forth by defendant No.3 that he was a bona fide
purchaser, would be of no consequence. Defendant Nos.2
and 3 i.e., Smt.Shamashadbegum and Aravind could have
at best purchased the share of Shrishail and could not
have purchased the share of the plaintiffs. Therefore, the
question of Aravind being a bona fide purchaser would not
arise. If Shrishail possessed only over a share of the entire
suit property, the question of Aravind contending that he
was a bona fide purchaser of the entire suit property
would never arise.
31. An application is filed by the respondents 1 to 5 i.e.,
the plaintiffs to produce additional documents to establish
that the contention of the appellant-defendant No. 3 that
he had other lands contrary to his assertion, during the
course of arguments. In my view, the fact as to whether
the appellant possessed other lands or not is not a matter
germane to this appeal and would not in way be relatable
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to the issue as to whether the suit property was the
ancestral property of the plaintiffs. The application is,
therefore, rejected as being unnecessary.
32. In light of the above, I find no reason to entertain
the appeal and the appeal is, therefore, dismissed.
Sd/-
JUDGE
HNM
