Karnataka High Court
Smt. H Sarojamma W/O Late H Malkappa vs Sri H Veeranna on 20 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RFA No. 100550 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100550 OF 2022 (PAR)
BETWEEN:
1. SMT. H. SAROJAMMA
W/O. LATE H. MALKAPPA,
AGE: 69 YEARS,
OCC: AGRICULTURIST,
R/O: H.B. HALLI,
TALUK: HAGARIBOMMANAHALLI,
DISTRICT: BALLARI.
2. SMT. KOTRAMMA @ SHANTHAMMA
W/O. KOTRESHAPPA,
AGED 52 YEARS,
OCC: AGRICULTURIST,
R/O: H.B. HALLI,
TALUK: HAGARIBOMMANAHALLI,
DISTRICT: BALLARI.
...APPELLANTS
KM
SOMASHEKAR
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
Digitally signed by K M
SOMASHEKAR
Location: HIGH COURT OF
KARNATAKA DHARWAD
BENCH
Date: 2023.12.21 13:27:59
+0530 AND:
1. SRI. H. VEERANNA
S/O. LATE HALAPPA,
AGED 66 YEARS,
OCC: AGRICULTURIST,
R/O: DEVANGONDANAHALLI VILLAGE,
TALUK: HADAGALI,
DIST: BALLARI-583101.
2. SRI. HAMMIGI MOUNAMMA
W/O. HAMMIGI VEERANNA,
AGE: 62 YEARS,
OCC: AGRICULTURIST,
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RFA No. 100550 of 2022
R/O: DEVANGONDANAHALLI VILLAGE,
TALUK: HADAGALI,
DIST: BALLARI-583101.
3. SRI. HAMMIGI GURUMURTHY
S/O. HAMMIGI VEERANNA,
AGE: 39 YEARS,
OCC: AGRICULTURIST,
R/O: DEVANGONDANAHALLI VILLAGE,
TALUK: HADAGALI,
DIST: BALLARI- 583101.
4. SRI. HAMMIGI DEVARAJ
S/O. HAMMIGGI VEERANNA,
AGE: 36 YEARS,
OCC: AGRICULTURIST,
R/O: DEVANGONDANAHALLI VILLAGE,
TALUK: HADAGALI,
DIST: BALLARI- 583101.
5. SMT. UDDANAMMA
W/O. SANNA THOTAPPA,
AGE: 69 YEARS, OCC: HOUSEHOLD,
R/O: MALVI VILLAGE,
TALUK: HAGRIBOMMANAHALLI,
DIST: BALLARI- 583101.
6. SMT. BHAGYAMMA
W/O. PARAMESHAPPA,
AGE: 68 YEARS, OCC: HOUSEHOLD,
R/O: YADORAMMAHALLI VILLAGE,
HAGARIBOMMANAHALLI TALUK,
DIST: BALLARI- 583103.
7. SMT. KOTRAMMA
W/O. BASAVARAJAPPA,
AGE: 62 YEARS, OCC: HOUSEHOLD,
R/O: DEVANGONDANAHALLI VILLAGE,
TALUK: HADAGALI,
DIST: BALLARI- 583103.
...RESPONDENTS
(BY SMT.SHOBA A.KHANAPUR, ADVOCATE FOR
SRI.SUNIL S.DESAI, ADVOCATE FOR R1 TO R4;
NOTICE TO R5 TO R7 SERVED)
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RFA No. 100550 of 2022
THIS RFA IS FILED UNDER SECTION 96 OF CPC., 1908,
AGAINST THE JUDGMENT AND DECREE DATED 14.01.2022 PASSED
IN O.S.NO.39/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE
H.B.HALLI, ITINERARY SITING AT SENIOR CIVIL JUDGE,
HUVINAHADAGALI, DISMISSING THE SUIT FILED FOR PARTITION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
H.P. SANDESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission.
2. Heard the appellants' counsel. Though counsel
appears on behalf of respondents, says no arguments.
3. Factual matrix of the case of the plaintiffs
before the trial Court is that while seeking the relief of
partition and separate possession, it is contended that suit
properties were the ancestral properties of original
propositus Halappa who died on 01.03.1975 and his wife is
Gangamma who also died on 15.04.1998 and during his
lifetime plaintiffs and defendants were living in the joint
family and during his lifetime he was in peaceful
possession and enjoyment of the properties till his death.
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His wife died in 1998 leaving behind two sons and three
daughters.
4. The main contention in the suit is that schedule
properties are their ancestral and joint family properties
and they were in joint possession of the defendants and
hence filed a suit for the relief of partition contending that
husband of first plaintiff died on 18.02.1996 at
Devagondahalli leaving his wife and daughter who are
plaintiffs No.1 and 2. Since Malakappa and his wife were
taking care of grandmother Rudramma, they were living
with her in Malvi village. During her lifetime, the
grandmother Rudramma had given certain properties to
plaintiffs and some landed properties to defendant No.1.
Plaintiffs have sold the said properties to third parties.
Since the properties are joint properties, after death of
Halappa, those properties were looked after by defendant
No.1 Veeranna. He went on postponing allotting shares of
the plaintiffs in the schedule properties. In the meanwhile,
without the knowledge and consent of the plaintiffs No.1
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and 2, defendants No.1 to 4 have partitioned the suit
properties among themselves. Accordingly, they have also
changed patta of the suit properties in their names. This
fact was not revealed and kept in secret by defendant
No.1 intentionally to deprive the legitimate right and share
of late Malakappa and hence without any alternative, they
have filed the suit.
5. In pursuance of the suit summons, defendant
No.5 appeared and filed written statement. Defendant
No.5 does not dispute the relationship and date of death of
her father, mother and brother. Rest of the averments in
the plaint have been denied. With regard to taking care of
the wife of Halappa, it is contended that defendant No.1
got employment in VSSN Co-operative Bank and he
started to living in Beerabbi with his family members. Her
elder brother i.e. husband of plaintiff Malakappa was spent
thrift for his welfare and without the knowledge of the
other members of the family, he started to raise loan on
agricultural properties and by observing his carelessness
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with respect to properties, defendant No.1 requested
Malakappa for division of entire family properties. As such,
defendant started to request for partition. With an ill-will,
the plaintiffs made efforts to alienate the properties to
third parties. Defendant No.1 who got such information,
tried to get documents and even he came to know about
the alienation made by the husband of first plaintiff in
favour of one Mallappa with respect to property measuring
2 acres 50 cents in Sy.No.129A on 11.12.1981 and also he
also came to know that he had alienated property
measuring 4 acres 28 cents in Sy.No.165A to one
Hulugappa on 14.10.1982. These acts of Malakappa clearly
establish that he had made such alienations only in order
to deceive the right of defendant No.1 over the joint family
properties. After knowing this, defendant No.1 got
convened panchayat in the village wherein the joint family
properties have been partitioned on 20.05.1994. In the
said partition, suit 'A' and 'B' schedule properties were
fallen to the share of defendant No.1 which are situated at
Devagondanahalli village of Hadagali taluk. In the very
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same partition, the properties situated at Malvi village of
H.B.Halli taluk were fallen to the share of Malakappa
because already he has sold some of the joint family
properties in Malvi village.
6. It is contended that since her and her sister
marriage was arranged by her father and defendant No.1,
they have spent Rs.1,00,000/- each as marriage expenses
and also gave certain golden and silver articles and other
household articles as their share. No share was allotted to
the daughters of Halappa in the said partition and hence
contend that already there was a partition dated
20.05.1994 and the suit filed for the relief of partial
partition is not maintainable and claimed that the suit is
liable to be dismissed.
7. Defendant No.1 in the written statement has
also admitted the relationship between the parties and
also the date of death of the parents and brother
Malakappa and rest of the plaint averments are denied. He
has also filed additional written statement.
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8. Based on the pleadings of plaintiff and
defendants No.1 and 5, the trial Court has framed the
following issues:
"1. Whether the plaintiffs prove that schedule
properties are their ancestral and joint family
properties having joint possession with Defendants?
2. Whether the defendants prove the earlier partition
as contended in the written statement?
3. Whether the suit is bad for partial partition?
4. Whether the plaintiff is entitled for the relief as
sought for?
5. What order or decree?"
9. The plaintiffs in order to prove their case,
examined plaintiff No.1 who is the daughter of Malakappa
and plaintiff No.1 as PW.1 and got marked documents as
Ex.P.1 to P.110. On the other hand, defendant No.1 is
examined as DW.1 and also examined two witnesses as
DW.2 and DW.3 who is defendant No.5 and got marked
documents Ex.D.1 to D.107.
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10. The trial Court having considered the oral and
documentary evidence, answered issue No.1 as negative
and comes to the conclusion that the plaintiffs failed to
prove that the properties are their ancestral and they are
in joint family properties and having joint possession with
the defendants and defendants have proved earlier
partition as contended in the written statement and the
suit is bad for partial partition. By answering issue No.3 as
affirmative, the trial Court has held that the plaintiff is not
entitled to any relief of partition as sought in the plaint.
11. Being aggrieved by the judgment and decree of
dismissal of the suit, the present appeal is filed by the
plaintiffs.
12. The main contention of the counsel for the
appellants is that the trial Court without even adverting to
the fact that the properties at Malvi admittedly were not
joint family properties and they were properties derived
through Gangamma i.e. grandmother of Malakappa and
hence they cannot partake the character of coparcenery
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ancestral properties to include the same in the suit. Hence,
the trial Court was not right in answering issue No.3 in
negative. He also vehemently contends that the trial Court
has committed serious error in holding the suit properties
as not joint family properties while dealing with issue No.1
which fact was never disputed.
13. He would also vehemently contend that the trial
Court has committed serious error in holding that there is
prior partition and the same stood established by the
defendants. While dealing with issue No.2, the trial Court
lost sight of the settled position of law that alleged
partition deed at Ex.P.98 is doubtful document which has
been disputed by appellants and the same is inadmissible
in evidence as the same is hit by Section 17 of
Registration Act. The trial Court while considering issue
No.2 in affirmative, proceeded on the premise that
Ex.D.98 is not challenged by the appellants. The trial
Court lost sight of mischief by first defendant and the
suspicion revolving Ex.D.98 as is evidenced from other
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document produced by defendants themselves more
particularly Ex.D.99. The alleged date of partition is
20.05.1994 and stamp paper is dated 01.10.1993 issued
in the name of Iti Parameshwarappa. However, the seal in
the second page bears the date as 23.05.1994. Hence, no
credence can be given to such a suspicious document.
14. Counsel would submit that the seal is dated
23.05.1994. Referring to these dates and events, he would
contend that the trial Court ought not to have given any
credence to the said document which came into existence
under suspicious circumstances. He also submits that
DW.1 in his cross-examination admitted that Ex.D.98 is
typed document and on perusal of Ex.D.98 it is
manuscript. In spite of all these material being available,
the trial Court has committed an error in dismissing the
suit.
15. Having heard the appellants' counsel and on
perusal of the judgment and decree of dismissal of suit,
the trial Court while answering issue No.3 first, it has been
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taken note that though the plaintiffs have contended that
some of the properties are derived from the mother of
husband of first plaintiff but specific contention taken in
the written statement is that plaintiffs have not included
the properties situated in Malvi village and only claiming
properties situated in Devagondahalli village which were
fallen to the share of defendant No.1 in family partition.
The trial Court taken note of answer elicited from the
mouth of PW.1 wherein she categorically admitted that
properties situated in Malvi village were not included in the
suit and also categorically admitted that Sy.No.14/B1
measuring 2 acres is standing in the joint name of the
family. The said property originally belongs to her
grandmother Rudramma and the property is in joint
possession of the family. Hence, the same has not been
included. Having taken note of this admission on the part
of the PW.1 that too in the cross-examination, the trial
Court comes to the conclusion that the plaintiffs have not
at all included all the joint family properties in one
hotchpotch. In the pleadings, the plaintiffs have given
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explanation that these properties do not belong to their
family.
16. It is also important to note that though
plaintiffs claim these properties are given in favour of
husband of first plaintiff and father of second plaintiff, no
such document is placed before the Court i.e. any Will or
testamentary document executed in favour of Malakappa
by Rudramma.
17. When such finding is given by the trial Court,
we do not find any error committed by the trial Court since
PW.1 has categorically admitted that the properties are
originally belong to Rudramma and the same is standing in
the name of joint family. Hence, it is clear that the suit is
filed for the relief of partial partition without including the
properties with the joint name of family.
i.e. property belong to the ancestral and joint family and
having joint possession is concerned, defendants took a
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specific defence that earlier there was a partition in the
family. Defendants also mainly rely upon the document
Ex.D.98 that there was a partition and the document also
reveals signature of the husband of first plaintiff and
father of second plaintiff and Malakappa had also signed
the said document.
19. Counsel appearing for the appellants mainly
contends that the document came into suspicious
circumstances and he pointed out that the document is
dated 01.10.1993 and in the back page, the date is
mentioned as 29.05.1994, but on perusal of document at
Ex.D.98 it is not as contended by the appellants' counsel.
It is also clear that the document is dated 25.09.1992 and
not 25.09.1994 as contended. Though the counsel
contends that it is admitted by DW.1 that it is in typed
copy but the same is in manuscript. It is important to note
that based on the said partition, properties are also
changed to defendants No.1 to 4 and defendants have also
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relied upon voluminous documents for having changed
documents.
20. It is also important to note that in respect of
the property in Sy.No.400/B measuring 7 acres 10 guntas
when first defendant approached the Tahasildar for change
of khata, the first plaintiff appeared and filed statement of
objections disputing the same and also order is very clear
that on three occasions notice was given to plaintiff on
three dates and in spite of that no material is placed
before the Tahasildar and Tahasildar passed an order on
13.07.2000. It is important to note that when this order
was passed on 13.07.2000, the same has not been
challenged before the appropriate authority. It is
important to note that the suit is filed in 2018. The trial
Court having considered both oral and documentary
evidence i.e. plaintiffs' side and defendants' side
particularly while answering issue Nos.1 and 2, taken note
that defendant No.1 and his wife and sons i.e. defendants
No.3 and 4 have already got divided certain properties and
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khata has been entered in their names. The trial Court
also made an observation that plaintiffs have not at all
furnished single piece of document to show that how their
ancestors acquired the properties in order to consider the
schedule 'A' and 'B' as the ancestral properties of plaintiffs
and defendants.
21. The trial Court also taken note in para No.14 of
the judgment that defendants have produced RTC and got
marked the same as Ex.D.1 to D.97 and also produced
unregistered partition deed of the year 1994 and apart
from that the said document is also not challenged by the
plaintiffs and parties have acted upon in terms of the said
partition and khatas have been entered in the names of
defendants No.1 to 4. It is taken note of that the plaintiffs
have suppressed these facts and filed suit for partition by
including the properties which were already divided. It is
also important to note that defendant No.5 in the written
statement took a specific defence that already there was a
partition and defendant No.5 is also examined before the
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trial Court as DW.3 and reiterates the same as contended
in the written statement.
22. Having considered both oral and documentary
evidence, the trial Court taken note of the documents
which have been placed before the Court and this Court
has already observed that even though the plaintiff claims
that the property came to husband of first plaintiff
through Rudramma, no document is placed before the
Court and document Ex.P.98 is clear with regard to
allotment of property in favour of her husband and he is
also signatory to the said document and in terms of the
said document parties have also acted upon. It is admitted
by PW.1 in the cross-examination that her father had also
sold property earlier. It is the defence of the defendants
that earlier husband of first defendant had sold property
and hence panchayat was convened and in the said
panchayat only, partition has taken place and when such
materials are available before the Court, the contention of
plaintiff that they got the property through Rudramma
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exclusively cannot be accepted when other children of
Halappa were there and no document and testamentary
document is produced to prove the contention of plaintiffs
as contended in the plaint. The same has not been
produced by placing the cogent evidence.
23. Having considered the evidence on record, the
trial Court has not committed any error in dismissing the
suit by answering issue No.2 as already there was a
partition and also suit for partial partition cannot be
maintained having considered the admission given by
PW.1 while answering issue No.3. The trial Court has not
committed any error in answering the relevant issues
based on the material on record and has rightly comes to
the conclusion that the suit itself is not maintainable for
partial partition and already there was a partition and
parties have acted upon considering the documentary
evidence.
24. Having given our anxious consideration to the
evidence, we do not find any ground to admit the appeal.
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25. In view of the above discussions, we pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
SH
