Vijamma W/O Babugouda And Anr vs Guramma W/O Chandrayya Diggi And ...
2023 Latest Caselaw 1063 Kant

IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH

      DATED THIS THE 19 TH DAY OF JANUARY, 2023

                        BEFORE

        THE HON'BLE MR. JUSTICE C.M. POONACHA

          R.S.A. No.200004 OF 2015 (PAR & SP)

BETWEEN

1. VIJJAMMA W/O. BABUGOUDA
AGE: 44 YEARS, OCC: HOUSEHOLD
& AGRICULTURE
R/O. KANCHANKAVI VILLAGE,
TQ. SAHAPUR,
DIST. YADGIR - 585223.

2. GOURAMMA D/O. BABUGOUDA POLICE PATIL
AGE: 20 YEARS,
OCC: HOUSEHOLD & AGRICULTURE
R/O. KANCHANKAVI VILLAGE,
TQ: SAHAPUR,
DIST: YADGIR - 585223.
                                          ...APPELLANTS
(BY SRI AJAYKUMAR A.K., ADVOCATE)

AND

1.    GOURAMMA W/O. CHANDRAYYA DIGGI
AGE: 52 YEARS,
OCC: HOUSEHOLD
R/O. GOGI (K) VILLAGE, TQ. SHAHAPUR,
DIST. YADGIR-585223.

2.BASANAGOUDA
S/O. SIDDANGOUDA POLICE PATIL
AGE: 62 YEARS,
OCC: AGRICULTURE,
R/O. KANCHANKAVI VILLAGE,
TQ: SAHAPUR,
                              2




DIST: YADGIR - 585223.
SINCE DECEASED BY HIS LR'S

2(a) SHARANAMMA
W/O. LATE BASANAGOUDA POLICE PATIL
AGE: 50 YEARS,
OCC: HOUSEHOLD

2(b) BHIMREDDY
S/O. LATE BASANAGOUDA POLICED PATIL,
AGE: 26 YEARS, OCC: AGRICULTURE,

2(c) GOURAMMA
W/O. SURESH TIMMAREDDY
(D/O LATE BASANAGOUDA POLICE PATIL)
AGE: 20 YEARS,
OCC: HOUSEHOLD,

ALL ARE R/O. KANCHANKAVI VILLAGE,
TQ: SHAHAPUR, DIST: YADGIR.

                                      ...RESPONDENTS
(BY SRI SHIVAKUMAR KALLOOR, ADVOCATE FOR R3 AND R4,
NOTICE TO R2(A)(B)(C) ARE SERVED)

      THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 18.10.2014
PASSED IN R.A. No.40/2014 ON THE FILE OF THE SENIOR CIVIL
JUDGE AT SHORAPUR SITTING AT SHAHAPUR DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
03.05.2014 PASSED IN O.S. NO.165/2011 ON THE FILE OF THE
CIVIL JUDGE AND JMFC., COURT AT SHAHAPUR AND ETC.,

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY
THE COURT DELIVERED THE FOLLOWING:


                      JUDGMENT

Heard the learned counsel for the Appellants and

learned counsel for Respondents.

2. The above Appeal is filed by the Defendant

Nos.2 and 3 to set aside the judgment and decree dated

03.05.2014 passed in O.S. No.165/2011 by the Civil Judge

and JMFC., Shahapur as well as the judgment and decree

dated 18.10.2014 passed in R.A. No.40/2014 by the

Senior Civil Judge, Shorapur sitting at Shahapur and

dismissed the suit filed by the Plaintiff.

3. The parties shall be referred as per their

ranking before the Trial Court for the sake of convenience.

4. The facts of the case forthcoming from the

records necessary to adjudicate the present Appeal are

that; the Plaintiff and defendant Nos.4 and 5 are the

sisters; Defendant No.1 and deceased Bapugowda are the

brothers, being the children of late Siddanagowda.

Bapugowda is deceased and his wife and daughter are

arrayed as Defendant Nos.2 and 3.

5. It is the case of the Plaintiff that the suit

properties are the joint family properties and defendant

Nos.1 and 2 clandestinely changed the revenue records in

their names without giving share to the plaintiff and other

sisters and hence, the suit for partition is filed claiming

1/5th share in the suit schedule properties. The Defendants

entered appearance through their respective counsels and

Defendant Nos.2 and 3 filed written statement and

contested the case of the plaintiff. The Defendants in the

written statement admitted the relationship. However, the

said defendants contended that on Ugadi Festival Day in

the year 2004, the oral partition took place between the

Plaintiff and Defendant Nos.1, 4 and 5 and husband of

Defendant No.2, who is the father of defendant No.3. In

the said oral partition, certain extent of the suit properties

were given to the share of Defendant No.1 and the

deceased Bapugowda and the sisters being the plaintiff

and Defendant Nos.4 and 5 were given cash and 10 tolas

of gold. Pursuant to the oral partition, the mutation was

changed in the name of Defendant No.1 and Bapugouda.

It is the further case of Defendants that the registered

Partition dated 26.12.2004 has been executed by

Defendant No.1 and the husband of Defendant No.2 and

accordingly, properties have been divided. The Trial Court

framed four issues which is as follows:

1. Whether the Plaintiff proves that, plaintiff and defendants are joint family members suit properties are ancestral and joint family properties of plaintiff and defendants?

proves that, on Ugadi day of 2004 there was a oral partition between plaintiff and defendants one husband of defendant

and according to oral partition they have acted upon?

3. Whether the plaintiff is entitled partition and separate possession as sought for?

4. What order or decree?

6. Plaintiff examined herself as PW.1 and marked

as Exs.P1 to P6. The Defendant No.2 examined herself as

DW.1 and got another witness as DW.1 and marked as

Exs.D1 to D22.

7. Trial Court after perusal of the material

available on record dismissed the suit of the plaintiff inter

alia holding that

i) That the properties are joint family properties.

ii) That the Defendants have not examined any witness to prove the oral partition as pleaded by the Defendants.

iii) That the Plaintiff is entitled for share by virtue of Section 6 of the Hindu Succession Act.

preferred R.A. No.40/2014 before the First Appellate

Court. The Plaintiff and other Defendants entered

appearance through their respective counsels. The First

Appellate Court framed the following points for its

consideration:

1. Whether the trial Court erred in consideration of the evidence of both

the parties and the proposition of law and wrongly decreed the suit?

2. Whether the Judgment of the trial Court warrants the interference of this Court?

3. What order?

9. The First Appellate Court after re-appreciation

of the entire material on record answered the points

framed for consideration in the negative and dismissed the

Appeal and held as follows:

Xxxx under this background, I have once again perused the evidence of defendants No.2 and 3, but not found my documents to show that the plaintiff and defendants No.4 and 5 were given their shares by way of cash and gold in the alleged oral partition or in the registered partition deed, which is marked as Ex.D.22. Even on going through the contents of the alleged unregistered partition deed which is marked as Ex.D.22 there are no any averments regarding giving of the share of plaintiff and defendants No.4 and 5 either in the lands or

by way of cash or gold. Moreover, this document is not bearing the consent signatures of plaintiff and defendants No.4 and 5 for having obtained their shares by way of gold and cash as contended in the written statement of defendants No.2 and 3.

Thus, the defendants No.2 and 3 have failed to prove the oral partition during the year 2004 and also giving of shares of plaintiff and defendants No. 4 and 5 in the oral partition by way of cash and gold as they contended in the written statement.

Therefore,        the     contentions               of        the
defendants        No.2         and       3         are        not
substantiated       with          the     cogent          and

convincing evidence in order to define the suit schedule property as divided properties among the plaintiff and defendants. Under these circumstances as I found in the evidence of both the parties, I have gone through the findings of the trial Court, wherein it has clearly opined regarding the entitlement of plaintiff to the equal share as that off defendants No.1 to 5 as a coparcener as contemplated under amended provision of Hindu Succession Act, 2005.

10. Learned counsel for the Appellants-Defendant

Nos.2 and 3 vehemently contended that both the Trial

Court and the First Appellate Court erred in disbelieving

the prior partition as pleaded by the defendants as well as

the registered partition deed dated 06.07.2004 which was

marked as Exs.D22. Further, contended that the suit of the

plaintiff ought to have been dismissed.

11. It is clear and forthcoming from the judgments

of the trial Court and the First Appellate Court that all the

contentions putforth by Defendants were considered and

the Trial Court had decreed the suit of the plaintiff by

granting 1/5th share in the suit schedule properties after

appreciation of the entire material on record. The First

Appellate Court has formulated three points for

consideration and re-appreciated the material available on

record. Having regard to the concurrent finding of fact

that;

i) The properties are joint family properties.

ii) The Defendant Nos.2 and 3 have failed to prove partition and giving half shares to the Plaintiffs and defendant Nos.4 and 5.

iii) The Plaintiff and Defendant Nos.1 to 5 are entitled to the equal share.

12. Appellants-defendant Nos.2 and 3 have not

able to point out any substantial question of law that arises

for consideration to interfere with the concurrent finding of

fact recorded by the Trial Court and the First Appellate

Court. In view of the aforementioned, the above Appeal is

dismissed at the stage of admission itself.

Sd/-

JUDGE

BS