Venkappa @ Yankappa Bhimappa ... vs Sumitra @ Hanamawwa W/O.Maruti ...
2023 Latest Caselaw 4062 Kant

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                                                                    RSA No. 5053 of 2013



                              IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                      DATED THIS THE 6TH DAY OF JULY, 2023

                                                     BEFORE
                                  THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                                    REGULAR SECOND APPEAL NO. 5053 OF 2013

                            BETWEEN

                                   SRI. VENKAPPA @ YANKAPPA BHIMAPPA TAMBURI
                                   @ MARAPUR, AGED ABOUT 58 YEARS,
                                   OCC: AGRICULTURE,
                                   R/O: MANNIKERI,
                                   TQ: GOKAK,
                                   DIST: BELAGAVI-591307.

                                                                            ...APPELLANT

                            (BY SRI. SANJAY.S.KATAGERI, ADVOCATE)

                            AND

                                   SMT. SUMITRA @ HANAMAWWA
                                   W/O MARUTI KHANATTI
           Digitally
           signed by
           YASHAVANT
                                   AGED ABOUT 41 YEARS,
YASHAVANT
NARAYANKAR
           NARAYANKAR
           Date:
           2023.07.10
                                   OCC: AGRICULTURE,
           11:09:05 -0700
                                   R/O: KESARGOPPA,
                                   TQ: MUDHOL,
                                   DIST: BAGALKOTE-587313.

                                                                           ...RESPONDENT

                            (BY SRI. K.H.BAGI FOR C/R1, ADVOCATE)


                                 THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE
                            JUDGEMENT     &   DECREE    DTD:20.09.2012   PASSED   IN
                            R.A.NO.305/2010 ON THE FILE OF THE I ADDITIONAL DISTRICT
                            JUDGE, BELGAUM, DISMISSING THE APPEAL, FILED AGAINST THE
                            JUDGMENT DTD:04.08.2010 AND THE DECREE PASSED IN
                            O.S.NO.39/2009 ON THE FILE OF THE 2ND ADDL. SENIOR CIVIL
                            JUDGE, GOKAK, DECREEING THE SUIT FILED FOR PARTITION
                            AND SEPARATE POSSESSION.
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                                         RSA No. 5053 of 2013




     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
26.06.2023 COMING ON FOR PRONOUNCEMENT, THIS DAY
COURT DELIVERED THE FOLLOWING.


                      JUDGMENT

This appeal is filed under Section 100 of CPC, by

appellant-defendant challenging the judgment and decree

passed in OS No.39/2009 on the file of the II Additional

Senior Civil Judge, Gokak and confirmed by the I

Additional District Judge, Belguam, in RA No.305/2010

dated 20.09.2012.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the Trial Court.

3. Brief facts of the case are as under:

The plaintiff is the daughter of Yallawwa i.e. second

wife of late Bhimappa and defendant is the son of Balawwa

who was the first wife of Bhimappa. That Bhimappa earlier

married to Balawwa, i.e. the mother of the defendant and

after her death, he contracted marriage with Yallawwa

RSA No. 5053 of 2013

who is the mother of the plaintiff. It is also admitted that

from his first wife, Bhimappa had a daughter by name

Uddawwa who is no more and she died as bachelor. That

plaintiff and defendant are stepsister and stepbrother

being the daughter and son of Bhimappa. That the suit

properties were owned by Bhimappa, and plaintiff and

defendant have succeeded to the suit schedule properties.

Hence, she filed suit for partition of her half share.

4. The defendant filed written statement and

admitted the relationship between the parties. However,

he denied the other claim and contended that item nos.1

and 2 are purchased by Bhimappa through consideration

amount given by elder brother of Balawwa by name

Ningappa and Hanamant as well as the mother of the

plaintiff by name Yallawwa. Further, it is asserted that

mother of plaintiff by name Yallawwa on 20.03.1973 by

receiving Rs.1,500/- relinquished her right in item nos.1, 2

and 4 of the suit property and item no.3 is purchased by

RSA No. 5053 of 2013

defendant and it is his self acquired property. Hence, he

disputed the claim of the plaintiff.

5. The Trial Court on the basis of the rival pleadings has framed the following issues:-

Issues

"i) Whether the plaintiff proves that herself and defendant constitute undivided joint Hindu family and the suit properties are their joint family ancestral properties?

2) Whether the plaintiff further proves that herself and defendant are in joint possession and cultivation of the suit properties?

3) Whether the defendants further proves that the mother of the plaintiff has received Rs. 1,000/ from the defendant and relinquished her share in the properties at Sin Nos 1,2 & 4 on 20/3/1973 on behalf of herself and also on behalf of plaintiff?

4) Whether the defendant proves that the property at si No. 3 of the plaint is his acquired property?

5) Whether the valuation made and payment of court fee is correct and sufficient?

6) Whether the plaintiff is entitled to the relief sought for?

7) What order or decree?"

RSA No. 5053 of 2013

6. Then after the conclusion of the trial, the trial

Court has answered issue nos.1, 2, and 6 in the

affirmative while issue nos.3, to 5 were answered in the

negative and ultimately, suit of the plaintiff came to be

decreed, by granting her half share in the suit schedule

properties..

7. Being aggrieved by this judgment and decree,

the defendant filed RA no.305/2010 on the file of the I

Additional District Judge, Belguam, and the learned

District Judge after re-appreciating the oral as well as

documentary evidence, has dismissed the regular appeal

by confirming the judgment and decree of the trial Court

granting half share in favour of the plaintiff. Being

aggrieved by these concurrent findings, the defendant is

before this Court.

8. Heard the arguments advanced by the learned

counsel for the appellant as well as respondent. Perused

records.

RSA No. 5053 of 2013

9. While admitting the appeal on 30.05.2013, this

Court has framed the following substantial question of

law:-

"Whether both the Courts below were justified in holding that the property purchased by the appellant on 20.02.1971 is property of the joint family and granting share to the respondent- plaintiff in the said proceedings ?"

10. The learned counsel for the appellant has

contended that the mother of the plaintiff has received

Rs.1,500/- and relinquished her right in the properties by

executing Ex.D4 and hence, question of plaintiff claiming

any share in these properties does not arise at all. He

would further contend that though the relinquishment

deed is not registered, it can be considered for collateral

purpose. He would also contend that after relinquishment,

the defendant has purchased the suit properties at item

no.3 and it is his self acquired property. Hence, he would

assert that both the Courts below have failed to appreciate

this aspect and erroneously decreed the suit and as such,

he would seek for dismissal of the suit by allowing the

appeal.

RSA No. 5053 of 2013

11. Per contra, the learned counsel for the

respondent would contend that item nos.1 and 2 were

admittedly ancestral properties and item no.3 was

purchased and the record disclose that in 1968 itself, the

father died and defendant was aged about 12 years and in

1971 he was hardly aged about 15 years. Hence, question

of he purchasing the suit schedule property out of his own

income does not arise at all. It is asserted that property

was purchased out of joint family income and it is a joint

family property and the alleged relinquishment deed

cannot be looked into as same is not proved by leading

any cogent evidence and it is unregistered deed and hit by

Section 17 of the Registration Act. Hence, he would seek

for rejection of the appeal.

12. It is an admitted fact that the plaintiff is the

stepsister of the defendant. It is also undisputed fact that

item nos.1 and 2 are the ancestral joint family properties

inherited from Bhimappa. The defendant himself has

produced Ex.D1 and D2 and these sale deeds are standing

in the name of father by name Bhimappa.

RSA No. 5053 of 2013

13. The contention of the defendant is that his

maternal uncles have contributed the consideration

amount for purchase of these properties. But, to

substantiate this aspect, no piece of evidence is placed

and even otherwise, it amounts to Benami transaction and

the said contention hold no water. The learned counsel for

the appellant has invited the admission of the plaintiff

regarding this aspect. But, admittedly, the plaintiff was

not yet born when these properties were purchased and

hence, her admission in this regard does not have any

relevancy. The sale deed is in the name of the father and

hence, the said properties were owned by Bhimappa and if

at all it is property acquired by the contribution from the

maternal uncles, there was no need for getting a

relinquishment deed as claimed by the defendant. The

conduct of the defendant in relying on relinquishment deed

itself disclose that it is a joint family property.

RSA No. 5053 of 2013

14. The other contention raised by the defendant is

regarding relinquishment deed executed by the mother of

the plaintiff as per Ex.D4. Admittedly, Ex.D4 is an

unregistered relinquishment deed. It is of the year 1973

and it is evident that it was never acted upon. Further,

Ex.D4 is an unregistered relinquishment, it does not create

any right in favor of the defendant. It is inadmissible in

evidence. Hence, this Ex.D4 relinquishment deed does not

assist the defendant in anyway and interestingly, it should

have been impounded by the Court below, but, that was

also not done. As regard, item no.3, it is asserted that it

is his self acquired property. But, admittedly, defendant

does not have any independent income other than

agricultural land and further the agricultural lands were

yielding income and as such presumption is that out of the

income derived from the agricultural lands of the family,

this property is purchased. The burden is on the defendant

to prove that he did not use the income of the joint family

and he had independent income to purchase this property.

But, no such evidence is forthcoming. Hence, the

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RSA No. 5053 of 2013

contention of the defendant in this regard cannot be

accepted.

15. Both the Courts have appreciated the oral and

documentary evidence in detail and have rightly decreed

the suit by granting half share in favour of the plaintiff in

the suit schedule properties. Both the Courts have

appreciated the oral and documentary evidence in detail

and analysed it in accordance with the provisions of law.

No illegality or perversity is found with the said judgments

and decree of the both the Courts below. Both the Courts

are justified in awarding half share to plaintiff in the suit

schedule properties by holding that the property

purchased in 1970 is also a joint family property.

Accordingly, substantial question is answered in the

affirmative and hence, the appeal being devoid of any

merits and needs to be dismissed.

16. Accordingly, I proceed to pass the following:

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RSA No. 5053 of 2013

ORDER

The appeal is dismissed.

No order as to costs.

Ex.D4 stands impounded for State.

Sd/-

JUDGE Vmb