Karnataka High Court
Lalita W/O Muneshwar Holagnnanavar vs Muneshwar S/O Dyavappa Holagannanavar on 6 December, 2023
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RSA No. 100176 of 2015
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.100176 OF 2015 (PAR)
BETWEEN:
1. SMT. LALITA
W/O. MUNESHWAR HOLAGANNANAVAR,
AGED ABOUT 47 YEARS, OCC: HOUSEHOLD WORK,
R/O: HIREMALLUR, TQ: SHIGGAON,
DIST: HAVERI.
2. KUMARI. SOUMYA
D/O. MUNESHWAR HOLAGANNANAVAR,
AGED ABOUT 27 YEARS, OCC: HOUSEHOLD WORK,
R/O: HIREMALLUR, TQ: SHIGGAON,
DIST: HAVERI.
3. KUMAR. BASAVARAJ
S/O. MUNESHWAR HOLAGANNANAVAR,
Digitally
AGED ABOUT 17 YEARS, OCC: STUDENT,
signed by R/O: HIREMALLUR, TQ: SHIGGAON,
VISHAL
VISHAL NINGAPPA DIST: HAVERI.
NINGAPPA PATTIHAL
PATTIHAL Date:
2023.12.13
11:12:58
4. KUMARI. SUSHMA
+0530 D/O. MUNESHWAR HOLAGANNANAVAR,
AGED ABOUT 13 YEARS, OCC: STUDENT,
R/O: HIREMALLUR, TQ: SHIGGAON,
DIST: HAVERI.
...APPELLANTS
(BY SRI SUNIL S.DESAI, ADVOCATE)
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RSA No. 100176 of 2015
AND:
1. MUNESHWAR
S/O. DYAVAPPA HOLAGANNANAVAR,
AGED ABOUT 54 YEARS, OCC: AGRICULTURE,
R/O: HIREMALLUR, TQ: SHIGGAON,
DIST: HAVERI.
2. SMT. KALAVATHI
W/O. GANGADHAR CHANNAMMANAVAR,
AGED ABOUT 54 YEARS, OCC: HOUSEHOLD WORK,
R/O: DEVAGIRI, TQ. DIST: HAVERI.
3. SMT. NEELAVVA
W/O. YOGENDRAPPA AMARAD,
AGED ABOUT 43 YEARS, OCC: HOUSEHOLD WORK,
R/O: YATTINAHALLI, TQ. AND DIST: HAVERI.
P/A/AT G. BASAPPA CHAWL,
5TH MAIN ROAD, SHIVABASAVA NAGAR,
HAVERI.
4. SMT. BASAVVA
W/O. GADIGEPPA HOLAGANNANAVAR,
SINCE DECEASED BY HER LR'S ARE ALREADY ON
RECORD AS RESPONDENT NO.s 1 TO 3 AND 5(a) TO 5(f)
5. SMT. GANGAVVA
W/O. BASAVANTAPPA METI,
SINCE DECEASED BY HER LR'S
5(a) BASAVANTAPPA
S/O. PARAPPA METI,
AGED ABOUT 74 YEARS, OCC: AGRICULTURE,
R/O: KABALUR, TQ: SHIGGAON,
DIST: HAVERI.
5(b) PRABHU
S/O. BASAVANTAPPA METI,
AGED ABOUT 49 YEARS, OCC: AGRICULTURE,
R/O: KABALUR, TQ: SHIGGAON,
DIST: HAVERI.
5(c) RATNAVVA
W/O. BASAPPA MAKARI,
AGED ABOUT 47 YEARS, OCC: AGRICULTURE,
R/O: KABALUR, TQ: SHIGGAON,
DIST: HAVERI.
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RSA No. 100176 of 2015
5(d) MALLAVVA
D/O. BASAVANTAPPA METI,
AGED ABOUT 45 YEARS, OCC: HOUSEHOLD WORK,
R/O: KABALUR, TQ: SHIGGAON,
DIST: HAVERI.
5(e) SHOBHA
W/O. RUDRAPPA GATTEPPANAVAR,
AGED ABOUT 42 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD WORK,
R/O: NAVALUR, TQ: HUBLI,
DIST: DHARWAD.
5(f) MUTTAVVA
W/O. GURANAGOUDA PATIL,
AGED ABOUT 39 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD WORK,
R/O: SANGUR, TQ AND DIST: HAVERI.
...RESPONDENTS
(BY SRI. H.R. GUNDAPPA, ADV. FOR R2, R3 AND R5 (A) TO R5 (F);
VIDE ORDER DATED 04.09.2023 R1 TO R3 AND R5 (a) TO (f)
ARE TREATED AS LRs OF DECEASED R4;
VIDE ORDER DATED 03.08.2023 AND 19.01.2016 APPEAL IS
DISMISSED AGAINST R4 AND R1)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE
JUDGMENT AND DECREE DATED 20.10.2014 PASSED IN R.A.NO.
79/2011 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE AT HAVERI, REJECTING THE APPEAL, AND THE JUDGMENT
AND DECREE DATED 22.03.2011 AND THE DECREE PASSED IN
O.S.NO. 73/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HAVERI, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS REGULAR SECOND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 100176 of 2015
JUDGMENT
The present second appeal by the plaintiffs assailing
the concurrent findings of facts of the Courts below.
2. The parties herein are referred to as per their
ranking before the Trial Court for the sake of convenience.
3. Plaintiffs instituted suit for partition and separate
possession seeking their share in "A" and "B" schedule
properties, contending that the plaintiffs are wife and
children of defendant No.1-Muneshwar and they are entitled
for 16/30th share in 'A' Schedule property and 4/5th share in
'B' schedule property.
4. Pursuant to the suit summons issued by the Trial
Court, except defendant No.1, other defendants appeared
and filed their written statement.
5. The Trial Court on basis of the pleadings framed
the following issues:
1. Whether the plaintiffs prove that, plaintiffs
and defendant No.1 are only in possession
of the suit schedule property?
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2. Whether defendants prove that, suit is bad
for non joinder of necessary party?
3. Whether the suit of the plaintiffs is also
bad for non joinder of remaining property?
4. Whether the plaintiffs are entitled for the
relief as prayed in the plaint?
6. In order to substantiate their claim, plaintiff No.1
examined herself as PW.1 and one witness as PW.2 and got
marked documents at Exs.P.1 to P.59. On the other hand,
defendant No.2 alone examined himself as DW.1 and got
marked documents at Exs.D.1 to D.4.
7. The Trial Court on basis of the pleadings, oral and
documentary evidence arrived at a conclusion that the suit
schedule properties are the joint family properties of the
plaintiffs and defendants and the plaintiffs are entitled for
share, in the share allotted to defendant No.1.
8. Feeling aggrieved by the judgment and decree of
the Trial Court, the plaintiffs preferred appeal before the First
Appellate Court on the ground that, the marriage of
defendant Nos.2 and 3 was performed by Dyavappa by
spending huge amount and the further ground is that there
was a partition already taken place between defendant Nos.1
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to 3 and the deceased Dyavappa submitted watni varadi
stating that Item Nos.1 to 4 of suit 'A' schedule properties,
have been given to the share of defendant No.1.
9. The First Appellate Court, while reconsidering and
re-appreciating the entire oral and documentary evidence,
concurred with the judgment and decree of the Trial Court.
Aggrieved by the same, the present second appeal by the
plaintiffs.
10. Heard Sri Sunil S.Desai learned counsel appearing
for the appellants and Sri H.R.Gundappa, learned counsel
appearing for the respondents and perused the judgment
and decree of the Courts below.
11. The Family pedigree of the parties is as under:
Gadigeppa (Died 25 years ago)
= Wife Basavva (alive)
Gamgavva(Deft.5) Dyavappa (dead in 1990)
= wife Basavannevva
(Died in 2002)
Kalavathi(Deft.2) Muneshwar(Deft.1) Neelavva(Deft.3)
Lalitha(Plff.1) Sowmya(Plff.2) Basavaraj(Plff.3) Sushma(Plff.4)
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12. The plaint avers that the suit schedule properties
are the ancestral joint family properties of the plaintiffs and
defendants and there was no partition effected between the
plaintiffs and defendants, whereas, at the time of evidence,
Ex.P.41 is marked to contend that, partition has already
been effected and deceased Dyavappa, father of defendant
No.1 had submitted "watni varadi" stating that item Nos.1 to
4 of the suit schedule 'A' property has been allotted to the
share of defendant No.1, the husband of plaintiff No.1 and
father of plaintiff Nos.2 to 4. The evidence let in by the
plaintiffs is in the absence of any pleadings in the said
regard. The averments in the plaint are seeking for partition
and in the absence of any pleadings to the effect of allotting
suit item Nos.1 to 4 of Schedule 'A' property to defendant
No.1, any amount of evidence, oral or documentary, are not
acceptable. The Trial Court and the First Appellate Court
have rightly held that the plaintiffs are entitled for share that
would be allotted to defendant No.1, after the properties are
divided by metes and bounds.
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13. Though learned counsel for the appellants tried to
contend that marriage of defendant Nos.2 and 3, daughters
of Dyavappa, had been performed by their father by
spending a huge amount and as per Ex.P.41, Dyavappa
gave varadi to enter the name of defendant No.1 in respect
of item Nos.1 to 4 of schedule 'A' property to the share of
defendant No. 1, as such daughters, defendant Nos.2 and 3
are not entitled for share is unsustainable for more than two
reasons, namely,
i) Merely performing the marriage of daughters
would not absolve their right in the ancestral
properties.
ii) Mere varadi to enter the name in the revenue
records do not evidence partition or right
created in favour of any of the parties.
14. Pleadings regarding partition and item Nos.1 to 4
falling to the share of defendant No.1 are absent. The law is
settled that the daughters are to be treated as coparceners
and are entitled for equal share in the ancestral joint family
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property in light of the amended provision of Section 6 of the
Hindu Succession (Amendment) Act, 2005 and the Apex
Court in the case of Vineeta Sharma Vs. Rakesh Sharma
and others1, has held at paragraph No.129 as under:
"129. Resultantly, we answer the
reference as under:
(i) The provisions contained in
substituted Section 6 of the Hindu Succession
Act, 1956 confer status of coparcener on the
daughter born before or after the amendment
in the same manner as son with same rights
and liabilities.
(ii) The rights can be claimed by the
daughter born earlier with effect from 9.9.2005
with savings as provided in Section 6(1) as to
the disposition or alienation, partition or
testamentary disposition which had taken place
before the 20th day of December, 2004.
(iii) Since the right in coparcenary is by
birth, it is not necessary that father coparcener
should be living as on 9-9-2005.
(iv) The statutory fiction of partition
created by the proviso to Section 6 of the
Hindu Succession Act, 1956 as originally
enacted did not bring about the actual partition
or disruption of coparcenary. The fiction was
only for the purpose of ascertaining share of
deceased coparcener when he was survived by
ILR 2020 KAR 4370
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a female heir, of Class I as specified in the
Schedule to the 1956 Act or male relative of
such female. The provisions of the substituted
Section 6 are required to be given full effect.
Notwithstanding that a preliminary decree has
been passed, the daughters are to be given
share in coparcenary equal to that of a son in
pending proceedings for final decree or in an
appeal.
(v) In view of the rigour of provisions of
the Explanation to Section 6(5) of the 1956
Act, a plea of oral partition cannot be accepted
as the statutory recognized mode of partition
effected by a deed of partition duly registered
under the provisions of the Registration Act,
1908 or effected by a decree of a court.
However, in exceptional cases where plea of
oral partition is supported by public documents
and partition is finally evinced in the same
manner as if it had been affected (sic effected)
by a decree of a court, it may be accepted. A
plea of partition based on oral evidence alone
cannot be accepted and to be rejected
outrightly."
15. The Apex Court at paragraph No.129(v) of its
judgment has held that in view of the rigor of provisions of
Explanation to Section 6(5) of the Act of 1956, a plea of oral
partition cannot be accepted as the statutory recognized
mode of partition effected by a deed of partition duly
registered under the provisions of the Registration Act, 1908
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or effected by a decree of a court. However, in exceptional
cases where plea of oral partition is supported by public
documents and partition is finally evinced in the same
manner as if it had been affected by a decree of a court, it
may be accepted. A plea of partition based on oral evidence
alone cannot be accepted and to be rejected outrightly.
16. In the said circumstances, the Trial Court and the
First Appellate Court were justified in allotting the share as
held in the impugned judgment at page No.16 of the Trial
Court order and the plaintiffs would be entitled for share, in
the share that would be allotted to defendant No.1.
17. The manner in which the Courts below have
considered entire oral and documentary evidence and have
arrived at a conclusion that the plaintiffs are entitled for
share in the share that would be allotted to defendant No.1,
this Court is of the considered view that the concurrent
findings of facts of the Courts below does not warrant any
interference by this Court to be dealt with under Section 100
CPC. Accordingly, this Court pass the following;
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ORDER
(i) The regular second appeal is hereby
dismissed.
(ii) The judgment and decree of the Courts
below stands confirmed.
In view of dismissal of the appeal, pending
applications, if any, would not survive for consideration.
Sd/-
JUDGE
EM, CT: UMD
