Karnataka High Court
Kariyeppa Veerabadhrappa Kambar vs Smt. Laxmibai W/O Basappa Kambar on 20 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RFA No. 100544 of 2023
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. 100544 OF 2023 (PAR/POS)
BETWEEN:
1. KARIYEPPA VEERABADHRAPPA KAMBAR
AGE: 75 YEARS OCC: AGRICULTURE
R/O: AMALZHARI TALUK: BILAGI
DISTRICT: BAGALKOT.
2. SMT. MANANDA W/O. KARIYEPPA KAMBAR
AGE: 65 YEARS OCC: HOUSEHOLD WORK
R/O: AMALZHARI, TALUK: BILAGI
DISTRICT: BAGALKOT.
3. MOUNESH S/O. KARIYAPPA KAMBAR
AGE: 41 YEARS OCC: AGRICULTURE
R/O: AMALZHARI TALUK: BILAGI
DISTRICT: BAGALKOT.
YASHAVANT 4. GANGAPPA S/O. KARIYAPA KAMBAR
NARAYANKAR AGE: 38 YEARS OCC: AGRICULTURE
R/O: AMALZHARI TALUK: BILAGI
DISTRICT: BAGALKOT.
Digitally signed ...APPELLANT
by YASHAVANT
NARAYANKAR
(BY SRI. ANKIT RAMESH DESAI, ADVOCATE)
Date: 2023.12.21
13:10:18 +0530
AND:
1. SMT. LAKSHMIBAI W/O. BASAPPA KAMBAR
AGE: 45 YEARS OCC: HOUSEHOLD WORK
R/O: MUNDAGANUR TALUK: BILAGI
DISTRICT: BAGALKOT-587101.
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NC: 2023:KHC-D:14949-DB
RFA No. 100544 of 2023
2. IRAPPA S/O. KARIYAPPA KAMBAR
AGE: 33 YEARS OCC: AGRICULTURE
R/O: AMALZHARI TALUK: BILAGI
DISTRICT: BAGALKOT-587101.
...RESPONDENTS
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96 OF
CPC., 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 07.09.2023 PASSED IN O.S.NO.2/2018 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
BILAGI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
H.P.SANDESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the counsel for
appellants.
2. The factual matrix of the case of the plaintiff who is
the daughter of defendant Nos.1 and 2 that suit schedule
properties are the ancestral joint family properties which more
fully described in schedule 'B' and the plaintiff and defendants
are the members of hindu undivided family and hence the
plaintiff claims that she is entitled for 1/5th share.
3. The defendant Nos.1 to 4 have appeared through
counsel and defendant No.1 filed written statement and
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defendant Nos.2 to 4 have adopted the written statement filed
by defendant No.1. Defendant No.5 remained exparte.
4. The defendant No.1 took the specific stand in the
written statement that suit suffers from non joinder of
necessary parties and his sisters have not been made as parties
to the proceedings and also some of the sisters were also
passed away and their heirs are also not brought on record.
The Trial Court having taken note of the pleading and also
averments of the written statement framed the following
issues:
"ISSUES
1. Whether plaintiff proves that, plaintiff
and defendants are the members of Hindu undivided
family?
2. Whether plaintiff proves that suit
schedule 'B' properties are ancestral joint family
properties of plaintiff and defendants?
3. Whether plaintiff is entitled for 1/5th
share in suit schedule 'B' properties?
4. Whether plaintiff is entitled to the relief
as sought for?
5. What order or decree?
ADDITIONAL ISSUED FRAMED ON 25.01.2023.
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1. Whether the suit suffers from non-joinder
of necessary parties?"
5. The plaintiff in order to prove her case examined
herself as PW.1 and got marked Ex.P.1 to P.3. On the other
hand first defendant has examined as DW.1 and also examined
one witness as DW.2 and got marked documents at Ex.D.1 to
D.4.
6. The Trial Court having considered both oral and
documentary evidence answered the issue Nos.1 and 2 as
affirmative in coming to the conclusion that plaintiff and
defendants are the members of hindu joint family and also suit
schedule 'B' properties are also joint family properties of
plaintiff and defendants. Answered issue No.3 as partly
affirmative in granting share as 1/6th instead of 1/5th claimed
in the plaint. Additional issue No.1 which was framed at the
instance of defendant in view of pleading of non joinder of
necessary parties is answered as negative and granted the
relief of decree of 1/6th share in favour of the plaintiff.
7. Being aggrieved by the judgment and decree of the
Trial Court, the present appeal is filed by the appellant.
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8. The counsel in his arguments vehemently contend
that the Trial Court ought to have seen that pursuant to the
relinquishment by the plaintiff and other sisters, the name of
first defendant was entered way back in the year 1968. The
counsel also vehemently contend that the Trial Court has
wrongly held the issue Nos.1 and 2 as affirmative and
additional issue No.1 as negative. The counsel would submit
that it is settled position of law that suit for partition is not
maintainable in the absence of inclusion of other shares and the
suit is bad for non joinder of necessary parties and committed
an error in granting the relief of 1/6th share in favour of the
plaintiff. The Trial Court ought to have seen that after 1956
the daughter have got equal share in father's property and
granting of 1/6th share in favour of the plaintiff is erroneous.
9. Having heard the appellant's counsel and also the
material placed on record, particularly the judgment of the Trial
Court wherein it is the claim of the plaintiff that suit schedule
properties which are more fully described in 'B' schedule are
the ancestral joint family properties. No dispute with regard to
the said fact but, only contention of defendant No.1 who is the
father of the plaintiff that the plaintiff ought to have made his
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sisters as parties to the proceedings and hence suit is bad for
non joinder of parties.
10. The Trial Court taking into note of this fact into
consideration and also the evidence available on record while
answering the additional issue No.1 in view of the contention
that the sisters of defendant No.1 are not made as parties
taken note of the admission of defendant No.1, he categorically
deposed that sisters of defendant No.1 have orally relinquished
their right in favour of defendant No.1. DW.1 in his cross
examination admitted that after the death of his father his
name was entered as per M.E. No.837 in the year 1968. It is
also his version that his name was entered as per family
arrangement in the family for which his sisters have no
objection. He also admitted that after entry of his name with
consent of all in the year 1968, till date his sisters have not
filed any suit seeking for partition and they have also not
objected for his possession over the suit schedule properties.
11. Having considered this admission on the part of
DW.1, the Trial Court comes to the conclusion that no need to
make them as parties as contended by defendant No.1 in the
written statement. The version of DW.1 is very clear that his
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sisters have relinquished their rights in favour of him and also
in the cross examination categorically admitted that properties
were transferred in his name in the year 1968 and his sisters
have no objection and also they have not filed any suit for
partition. When such being the case of properties standing in
the name of defendant No.1 and the admission is very clear
that they have orally relinquished their right in favour of
defendant No.1, hence question of making them as parties in
the present suit does not arise. It is also important to note that
the suit is filed by the daughter of defendant No.1 against her
parents i.e., defendant Nos.1 and 2 and also against her
brothers who have been arrayed as defendant Nos.3 to 5.
12. Defendant No.1 in the written statement in
paragraph No.10 also contended that he only performed the
marriage of defendant Nos.4 and 5 and he is facing financial
difficulties and the plaintiff is also liable for liabilities. It is also
contended that she has filed a false case at the instance of
some persons who have ill-will against him. The very
contention of the defendant that he had availed the loan for
performing the marriage of defendant Nos.4 and 5 and plaintiff
is entitled for a share in the co-parcenery property and suit is
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also filed in the year 2018 subsequent to the amendment of
2005 and she is also having equal share as that of the son and
the Court cannot make any discrimination on the ground that
the suit is filed by the daughter and the defendant No.1 ought
to have considered the demand made by the plaintiff in view of
the amendment and also the Hon'ble Apex Court in the
judgment of Vineeta Sharma Vs. Rakesh Sharma reported in
(2020) 9 SCC 1, held that daughter is also entitled for equal
share along with son in ancestral and joint family properties as
per Section 6 of the Hindu Succession Act, 1956.
13. Having considered the reasoning of the Trial Court
and also the granting of the decree of 1/6th share and the same
is also in accordance with law and though the plaintiff claimed
1/5th share and having taken note of the mother is also party to
the suit and in a Bombay School of Hindu Law rightly granted
1/6th share instead of 1/5th share as claimed by the plaintiff.
Hence there are no reasons to admit the appeal and we do not
find any ground in this appeal.
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14. In view of the discussions made above, we pass the
following:
ORDER
Appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
SMM
