Karnataka High Court
Smt. Gangi Bai vs Dhariya Naik @ Dhariyasingh on 7 December, 2023
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RSA No. 1068 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 1068 OF 2018 (PAR)
BETWEEN:
1. SMT. GANGI BAI,
W/O LATE KEERYA NAIK,
AGED ABOUT 69 YEARS,
R/A MAHARAJANAHATTI,
MEDAGINAKERE POST,
JAGALORE TALUK,
DAVANAGERE DISTRICT - 577 528.
2. DHAWAJA NAIK,
S/O LATE LACCHA NAIK,
AGED ABOUT 55 YEARS,
R/AT E-HOSAHATTI VILLAGE AND POST
BARMASAGAR HOBLI,
CHITRADURGA TALUK,
Digitally signed CHITRADURGA DISTRICT - 577 501.
by SUCHITRA M
J ...APPELLANTS
Location: High
Court of
Karnataka (BY SRI. RAMU K.S, ADVOCATE)
AND:
1. DHARIYA NAIK @ DHARIYASINGH,
S/O LATE TAKRYA NAIK,
R/A MTS COL. L.M.O., A.M.C.,
DOOR NO.78, II STAGE, GOKULAM,
12TH CROSS, V.V.MAHAL, MYSURU - 570 002.
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RSA No. 1068 of 2018
2. TAKUR NAIK,
S/O LATE NINGA NAIK,
AGED ABOUT 63 YEARS,
3. SMT.LALITHA BAI,
W/O RAMA NAIK,
D/O LATE NINGA NAIK,
AGED ABOUT 56 YEARS
4. SMT.LEELA BAI,
W/O CHANDRA NAIK,
D/O LATE NINGA NAIK,
AGED ABOUT 57 YEARS
5. KOTI NAIK,
S/O NINGA NAIK,
AGED ABOUT 48 YEARS,
6. SRI. VENKATESH NAIK
S/O LATE NINGA NAIK,
AGED ABOUT 45 YEARS,
7. SMT. LAKSHMI BAI,
W/O HANUMATH NAIK,
D/O LATE NINGA NAIK,
AGED ABOUT 43 YEARS
8. K. MAHANTESH
S/O LATE KEERYA NAIK,
AGED ABOUT 42 YEARS,
9. K. SHIVA NAIK
S/O LATE KEERYA NAIK,
AGED ABOU 40 YEARS,
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RSA No. 1068 of 2018
10. K. HANUMANTH NAIK,
S/O LATE KEERYA NAIK,
AGED ABOUT 37 YEARS,
11. SMT. GANGA BAI,
W/O ASHOK NAIK,
S/O LATE KEERYA NAIK,
AGED ABOUT 33 YEARS,
12. VENKATESH NAIK,
S/O LATE KEERYA NAIK,
AGED ABOUT 34 YEARS,
13. NAGARAJ NAIK
S/O LATE KEERYA NAIK,
AGED ABOUT 32 YEARS,
14. SHANKAR NAIK,
S/O LATE KRISHNA NAIK,
AGED ABOUT 56 YEARS,
15. KOTRESH NAIK,,
S/O LATE KRIKSHNA NAIK,
AGED ABOUT 52 YEARS
16. VEERUPAKSHI NAIK,
S/O LATE KRISHNA NAIK,
AGED ABOUT 48 YEARS,
17. CHANDRA NAIK,
S/O LATE KRISHNA NAIK,
AGED ABOUT 43 YEARS
R2 TO R17 ARE R/A MAHARAJANAHATTI,
JAGALORE TALUK,
DAVANAGERE DISTRICT - 577 528.
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RSA No. 1068 of 2018
18. SMT. RATHNI BAI
W/O LATE SHANKARA NAIK,
AGED ABOUT 59 YEARS,
19. SMT. LALITHA BAI,
W/O HANUMATA NAIK,
D/O LATE SHANKAR NAIK,
AGED ABOUT 43 YEARS,
20. SMT.BHAGYA BAI,
W/O ESHAWAR NAIK,
D/O LATE SHANKARA NAIK,
AGED ABOUT 40 YEARS,
21. SMT.GEETHA BAI,
W/O THIPPESH NAIK,
D/O LATE SHANKARA NAIK,
AGED ABOUT 37 YEARS,
22. SMT. JAYA BAI,
W/O MANJA NAIK,
D/O LATE SHANKARA NAIK,
AGED ABOUT 34 YEARS,
R8 TO R22 ARE R/A
ISMAUDRA-HOSAHATTI VILLAGE AND POST,
BHARAMA SAGARA HOBLI,
CHITRADURGA TALUK & DISTRICT - 577 501.
23. RAMA NAIK,
S/O LATE LACHHA NAIK,
AGED ABOUT 61 YEARS
R/A MAHARAJANAHATTI,
JAGALORE TALUK,
DAVANAGERE DISTRICT - 577 528.
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RSA No. 1068 of 2018
24. SMT. RENUKAMA,
W/O LATE MURTHY NAIK,
AGED ABOUT 30 YEARS,
25. HALESH NAIK,
S/O LATE MURTHY NAIK,
AGED ABOUT 30 YEARS,
26. KUM. ASHA,
D/O LATE MURTHY NAIK,
AGED ABOUT 23 YEARS,
27. RAJU,
S/O LATE MURTHY NAIK,
AGED ABOUT 20 YEARS
R24 TO R27 ARE R/A
ISAMUDRA-HOSAHATTI VILLAGE AND POST,
BHARAMA SAGARA HOBLI,
CHITRADURGA TALUK & DISTRICT - 577 501.
28. SMT. GOWRI BAI,
D/O LATE LACHHA NAIK,
W/O KRISHANA NAIK,
AGED ABOUT 58 YEARS,
R/A ARBHAGATTA VILLAGE,
BHARAMASAGAR HOBLI,
CHITRADURGA TALUK & DISTRICT - 577 501.
29. SMT. KAMLI BAI,
D/O LATE LACHHA NAIK,
W/O TOGYA NAIK,
AGED ABOUT 48 YEARS,
R/A TANIGEHALLI VILLAGE,
KANDAVADI POST HOLAKERE TALUK,
CHITRADURGA DISTRICT - 577 526.
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RSA No. 1068 of 2018
30. JYOTHI NAIK,
S/O LATE K. NAGENDRA NAIK,
AGED ABOUT 35 YEARS,
R/A JOTHIPURA MAJURE
GANDHINAGAR VILLAGE,
JAGALORE TALUK,
DAVANAGERE DIST. - 577 528.
31. SMT. KOUSLYA BAI,
W/O N. SHANTHA NAIK,
D/O RAJAKER NAIK,
R/A JOTHIPURA MAJURI
GANDHINAGAR VILLAGE,
JAGALORE TALUK,
DAVANAGERE DIST. - 577 528.
32. OJASWINI,
D/O LATE J.S.B RAJU,
AGED ABOUT 26 YEARS,
33. RANI,
D/O LATE J.S.B. RAJU,
AGED ABOUT 22 YEARS,
BOTH ARE R/A MANJUNATHA NILAYA,
INDIRA BANDAVANE, JAGALORE TOWN,
JAGALURU TALUK.
34. SMT. B. NANDA,
W/O LATE J.S.B. RAJU,
AGED ABOUT 45 YEARS,
MANJUNATHA NILAYA,
INDIRA BANDAVANE, JAGALORE TOWN,
JAGALURU TALUK - 577 528.
35. SMT. RUKMINI,
W/O LATE DHARIYASINGH,
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RSA No. 1068 of 2018
AGED ABOUT 64 YEARS,
R/A NP. 78, 2ND STAGE,
GOKULAM, 4TH MAIN ROAD,
V.V.MOHALLA, MYSURU - 570 002.
36. SMT. DR. CHAYA,
W/O KARNEL ASHOK KUMAR,
AGED ABOUT 49 YEARS,
37. SMT. MAYA,
W/O ANIL,
AGED ABOUT 43 YEARS,
38. SMT. BHAGYA RAKESH,
W/O RAKESH BOLA,
AGED ABOUT 41 YEARS,
39. SMT. HERA ARAVINDH,
W/O ARAVINDH,
AGED ABOUT 38 YEARS,
R36 TO 39 ARE R/A NO.78, 2ND STAGE,
GOKULAM, 4TH MAIN ROAD,
V.V.MOHALLA, MYSURU - 577 002.
40. BADDAYA NAIK,
S/O LATE PORYA NAIK,
AGED ABOUT 73 YEARS,
41. SMT. SHANTHA BAI,
W/O LATE PUTTA NAIK,
AGED ABUT 63 YEARS,
42. THIPPESWAMY,
S/O LATE PUTTA NAIK,
AGED ABOUT 46 YEARS.
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RSA No. 1068 of 2018
43. SMT. SUSHEELA BAI
W/O BASAVARAJ NAIK.J,
D/O LATE PUTTA NAIK,
AGED ABOUT 43 YEARS,
44. SMT.GEERIJA BAI,
W/O LINGARAJ,
D/O LATE PUTTA NAIK,
AGED ABOUT 38 YEARS,.
45. KALYA NAIK,
S/O LATE PORYA NAIK,
AGED ABOUT 65 YEARS,
46. REVANI NAIK,
S/O LATE PORYA NAIK,
AGED ABOUT 64 YEARS
47. SMT. SHARADI BAI
W/O LATE TEJYA NAIK,
AGED ABOUT 53 YEARS,
48. THIPPESH NAIK,
S/O LATE TEJYA NAIK,
AGED ABOUT 27 YEARS,
49. SMT.MANJULA BAI,
W/O DANYA NAIK,
D/O LATE TEJYA NAIK,
AGED ABOUT 29 YEARS,
50. SMT. SHARADA BAI,
W/O LATE ONKAR NAIK,
D/O LATE PORYA NAIK,
AGED ABOUT 51 YEARS,
R40 TO 50 ARE R/A CHINNASAMUDRA VILLAGE,
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RSA No. 1068 of 2018
NERLIGI,
DAVANAGERE TALUK AND DIST. - 577 556.
51. SMT. PARIBAI,
W/O KRISHNA NAIK,
AGED ABOUT 62 YEARS,
52. SOMLA NAIK,
S/O DASYA NAIK,
AGED ABOUT 58 YEARS,
53. SMT. BADRIBAI,
W/O OBAYA NAIK,
AGED ABOUT 57 YEARS,
54. NAGESH NAIK,
S/O OBAYA NAIK,
AGED ABOUT 43 YEARS,
55. PUTTA NAIK,
S/O OBAYA NAIK,
AGED ABOUT 42 YEARS,
56. TIPPESH NAIK,
S/O OBAYA NAIK,
AGED ABOUT 40 YEARS,
57. SMT. SEETHABAI,
W/O RAMDAS NAIK,
AGED ABOUT 54 YEARS,
58. SMT. MANGALI BAI,
W/O ONKAR NAIK,
AGED ABOUT 53 YEARS,
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RSA No. 1068 of 2018
59. D. VEERANNA,
S/O DASAYA NAIK,
AGED ABOUT 50 YEARS,
60. SMT. RUKMINI BAI,
W/O VEERAYA NAIK,
D/O DASAYA NAIK,
AGED ABOUT 48 YEARS,
61. SMT. PADMA BAI,
W/O LATE CHANDRA NAIK,
D/O DASAYA NAIK,
AGED ABOUT 45 YEARS,
R51 TO 61 ARE R/A GOKALAHATTI VILLAGE,
GUTTIDURGA POST, JAGALORE TALUK,
DAVANAGERE DIST. - 577 528.
62. SMT. LOLABAI
W/O VENKATESH NAIK,
D/O MOTHI NAIK,
AGED ABOUT 41 YEARS,
63. SMT. LINGESH NAIK,
S/O MOTHI NAIK,
AGED ABOUT 39 YEARS,
R/AT MAHARAJAHATTI,
MEDAGINAKERE POST,
JAGLUR TALUK,
DAVANAGERE DIST. - 577 528.
64. SMT. LAKSHMIBAI,
W/O HALA NAIK,
D/O LATE KRISHNA NAIK,
AGED ABOUT 48 YEARS,
R/A GOKALAHATTI VILLAGE,
GUTTIDURGA POST,
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RSA No. 1068 of 2018
JAGGUR TALUK,
DAVANAGERE DIST. - 577 528.
65. SMT. RAJUBAI,
W/O PAKKER NAIK,
D/O KRISHNA NAIK,
AGED ABOUT 46 YEARS,
R/A MAHARAJAHATTI VILLAGE,
MEDAGINAKERE POST,
JAGALORE TALUK,
DAVANAGERE DIST. - 577 501.
66. SMT. PAMPABAI,
W/O NAGARAJA NAIK,
D/O KRISHNA NAIK,
AGED ABOUT 44 YEARS,
R/A ARABAGATTA VILLAGE,
HALUAVADARA POST,
CHITRADURGA TALUK,
CHITRADURGA DIST. - 577 501.
66. SMT.VANITHABAI,
W/O PAKKER NAIK,
D/O KRISHNA NAIK,
AGED ABOUT 39 YEARS
R/A MAHARAJAHATTI VILLAGE,
MEDAGINAKERE POST,
JAGALORE TALUK,
DAVANAGERE DIST. - 577 528.
...RESPONDENTS
(BY SRI. SHRIDHARA K, ADVOCATE FOR R1, R35 AND R36;
SRI. B.S. NAGARAJ, ADVOCATE FOR R32 TO R34;
R5 TO R14, 16, 17, 22, 28, TO 31, R50, 52, 53, 56, 62 TO
67 ARE SERVED AND UNREPRESENTED)
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RSA No. 1068 of 2018
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 25.10.2017
PASSED IN R.A.NO.11/2015 ON THE FILE OF THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 17.11.2014 PASSED IN O.S.NO.320/2006
ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE,
DAVANAGERE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the
unsuccessful plaintiffs assailing the concurrent judgments
of the Courts below, wherein plaintiffs' suit seeing partition
and separate possession is dismissed by both the Courts.
2. For the sake of brevity, the rank of the parties
are referred as they are ranked before the Trial Court.
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3. The family tree of the family is as under:
Keerya Naika (Dead)
Seethabai
Valyanaika @ Valyasingh (dead) Takranaika (dead)
Wife Pakeeribai @ Ramibai (dead)
Wife Amnibai (dead)
Daughter Bheemnibai @ Bheemibai (dead)
Husband Hemibai Sonibai D2-Ninganaika Krishnanaika D1-Dhariyasinga D3-Keeryanaik Hiribai
Lachyanaika @ Alive Wife (dead) Alive Alive Dead
Lakshmananaika (dead)
Husband Husband Tulasibai (dead)
1.Shankranaika D8 Poryanaika Dasyanaika Shankaranaika D4
2. Ramanaika D9 Kotreshnaika D5
3.Gangeebai P1 Veerupakshanaika D6
4. Murthinaika D10 Lakshmibai
5.Gowribai D11 Rajubai
6.Kamalibai D12 Pampabai
7.Dawajanaika P2 Chandranaika D7
Vanithabai
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4. Plaintiff Nos.1 and 2 have instituted the present
partition suit, claiming to be the granddaughters of one
Walianaik. Plaintiffs contended that one Keeryanaik, is the
propositor and he had two sons by name, Walianaik and
Takranaik. The plaintiffs have claimed that suit schedule
properties are joint family ancestral properties and the
present plaintiffs and defendant No.8 to 12 are the legal
heirs representing the branch of Walianaik. Plaintiffs have
further contended that defendant Nos.2 to 7 are the legal
heirs of Takranaik and they represent the said branch. It is
a specific case of the plaintiffs that they and defendant
Nos.1 to 12 constitute an undivided joint Hindu family and
they are in joint possession and enjoyment over the suit
schedule properties. The present suit is filed alleging that
defendant No.1, who is claiming to be the adopted son of
grandfather Walianaik, is disputing plaintiffs' legitimate
share in the suit schedule properties. It is also alleged that
defendant No.1 in collusion with defendant Nos.2 to 7, has
created and concocted a document styled as a partition
deed, which is of the year 1967 and has also created an
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adoption deed to falsely lay a claim over the half share of
Walianaik, hence the present suit for partition.
5. Defendant No.1, on receipt of summons,
tendered appearance, filed written statement and stoutly
denied the entire averments made in the plaint. Defendant
No.1 sought for dismissal of the suit as barred by
limitation. Defendant No.1 contended that plaintiffs and
defendant Nos.8 to 12 are quite aware of the registered
partition deed dated 30.05.1967. Defendant No.1 while
countering the claim of plaintiffs, has specifically
contended that plaintiff No.1 is the wife of defendant No.3,
who is a party to the said registered partition deed and
therefore, contended that pursuant to the registered
partition deed, there is severance in the family and
plaintiffs mother never questioned this registered partition
deed effected in 1967.
6. Plaintiffs and defendant No.1 to substantiate
their respective claims have let in oral and documentary
evidence. Since defendant No.1's status as an adopted son
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was questioned and disputed by the plaintiffs, defendant
No.1 has let in evidence to substantiate that he is the
adopted son of Walianaik and as a coparcener, he has
represented the branch of Walianaik in the 1967 partition.
7. The Trial Court, having examined the pleadings
of the parties and oral and documentary evidence let in
and also having taken note of several admissions elicited
in cross-examination of P.W.1, answered issue Nos.1 to 3
in the negative and issue No.7 in the affirmative. While
answering issue No.3 in the negative, the Trial Court held
that plaintiffs have failed to substantiate that the partition
deed dated 30.05.1967 is a created and concocted
document. While answering issue No.7 in the affirmative,
the Trial Court held that defendant No.1 has succeeded in
establishing that there is severance in the family post-
partition by way of a registered partition deed effected in
1967. While answering issue No.8 in the negative, the
Trial Court also held that defendant Nos.7, 8, 10 and 12
have failed to prove that the partition deed dated
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30.05.1967 is not binding on them. The Trial Court while
answering issue No.1 to 3 and 8 in the negative, has not
only upheld the partition effected in 1967 while examining
severance in the family but has also taken cognizance of
the fact that defendant No.1 has succeeded in establishing
his status as an adopted son of Walianaik. Consequently,
suit is dismissed and while dismissing the suit, the Trial
Court answered issue No.11 in the affirmative and
defendant Nos.13, 14 and 16 are held to be bonafide
purchasers.
8. The plaintiffs, feeling aggrieved by the
judgment and decree of the Trial Court, preferred an
appeal before the appellate Court. The Appellate Court, as
a final fact-finding authority, has re-assessed the entire
evidence on record independently. While examining the
status of defendant No.1 as the adopted son of Walianaik,
the Appellate Court has independently examined the
evidentiary value of Exs.D.5 and 8, coupled with the
registered partition deed produced at Ex.D.4. While taking
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note of the original partition deed, which is placed on
record by defendant No.1, which is marked as Ex.D.4, the
Appellate Court has concurred with the findings recorded
on the status of defendant No.1. Referring to recitals in
the registered partition deed, the Appellate Court was also
of the view that defendant No.1 is party to the said
registered partition deed and is referred to as an adopted
son of Walianaik. While taking cognizance of Exs.D.5 and
8, which are school record and school transfer certificate,
respectively, as well as Ex.D.9, which is voter list, the
Appellate Court was also of the view that defendant No.1
has succeeded in substantiating that he was taken in
adoption by Walianaik before codification of Hindu Law,
which is in 1949.
9. While examining as to whether there is
severance based on registered partition deed, the
Appellate Court has not only referred to several
admissions elicited in cross-examination of P.W.1 but has
also culled out those relevant admissions at paragraph
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No.25. Referring to these significant details, the Appellate
Court has also come to the conclusion that defendant No.1
has succeeded in establishing that there was severance in
the family way back in 1967. Having held that defendant
No.1 is the adopted son and further having held that there
is severance in the family pursuant to a registered
partition deed effected in the family, the appeal is
dismissed. These concurrent findings are under challenge.
10. Heard learned counsel appearing for the
plaintiffs and learned counsel appearing for defendant
No.1. I have also given my anxious consideration to the
judgment cited by the learned counsel appearing for the
plaintiffs.
11. Though learned counsel appearing for the
plaintiffs, placing reliance on the judgment rendered by
the Hon'ble Apex Court in the case of Vineeta Sharma
vs. Rakesh Sharma and others reported in (2020) 9
SCC 1, would contend that daughter, in view of
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amendment to Section 6, is conferred the status of a
coparcener and therefore, she is entitled for share, I am
not inclined to exceed the said argument. The right of the
daughter in a coparcenery property, though, is given a
quietus by the judgment rendered by the Hon'ble Apex
Court in the case of Vineeta Sharma; the said principles
are not applicable to the present case on hand. If there is
severance in the family way back in 1967 under a
registered partition deed which is evident from Ex.D.4,
then the same is clearly saved under proviso to Section
6(1) of the Hindu Succession Act, 1956 (for short, 'Act').
The Hon'ble Apex Court in the case of Vineeta Sharma at
paragraph No.67, taking note of the proviso to Section
6(1) has clearly held that proviso to Section 6(1) and
Section 6(5) clearly saves any partition effected before 20-
12-2004. Referring to the explanation of Section 6(5), the
Apex Court held that the said Section 6(5) clearly
recognizes partition effected by the execution of a deed of
partition duly registered under the Registration Act. In the
light of law laid down by the Apex Court in the case of
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Vineeta Sharma and having regard to proviso to Section
6 of the Act, the granddaughter of Walianaik could not
have maintained the partition suit in 2006.
12. Both the Courts, referring to the clinching
rebuttal evidence let in by defendant No.1, have
concurrently held that defendant No.1 has succeeded to
the branch of Walianaik as an adopted son and he has
acquired a half share pursuant to a registered partition
deed effected between the branches of Walianaik and
Takranaik. The severance in terms of the registered
partition deed is admitted in unequivocal terms in the
cross-examination of P.W.1. Both the Courts, referring to
the registered partition deed, have concurrently held that
defendant No.1 has successfully proved the severance in
the family. Both the Courts, while answering issue Nos.1
to 3 in the negative, have concurrently held that plaintiffs
have failed to prove the alleged partition deed is a
concocted document. In the light of discussion made
supra, no substantial question of law would arise for
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consideration. The regular second appeal is devoid of
merits and accordingly stands dismissed.
In view of dismissal of second appeal, all pending
applications, if any, do not survive for consideration and
stand disposed of.
Sd/-
JUDGE
HDK
CT: BHK
