Karnataka High Court
Ssri.Manoj S/O Nanjappa vs 1A. Prabha W/O Venkateshwar on 27 July, 2023
Bench: Rajendra Badamikar
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RSA No. 100348 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO. 100348 OF 2021 (DEC/POS)
BETWEEN:
SMT.SUMANA D/O NAGAPPA NAIK
SINCE DEAD BY HIS L.R.
1. SRI. MANOJ S/O NANJAPPA
AGED ABOUT 48 YEARS,
OCC: PRIVATE SERVICE,
R/O: H.NO.59A,
II BLOCK, 21ST CROSS,
RAJAJINAGAR,
BENGALURU-560001.
...APPELLANT
(BY SRI. G.I.GACHCHINAMATH,ADVOCATE)
AND:
Digitally
signed by RAMDAS NAGAPPA NAIK
SUJATA
SUJATA SUBHASH
SUBHASH PAMMAR
SINCE DEAD BY HIS LRS.
PAMMAR Date:
2023.07.28
11:26:01 -
0700
1. PRABHA W/O VENKATESHWAR
AGED 52 YEARS,
R/O: R-18, SECTOR-4,
AROLI NAVI MUMBAI-400708.
2. VASANTA S/O RAMDAS NAIK
AGED ABOUT 50 YEARS,
OCC: AGRICULTURE,
R/O: HARGOD SANTAGAL,
POST: CHANDAVAR,
TQ: HONNAVAR,
DIST: KARWAR-581334.
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RSA No. 100348 of 2021
3. GEETA D/O RAMDAS NAIK
AGED ABOUT 51 YEARS,
OCC: PRIVATE SERVICE,
R/O: HARGOD SANTAGAL,
POST: CHANDAVAR,
TQ: HONNAVAR,
DIST KARWAR-581334.
4. SMT. KAMALA W/O RAMDAS NAIK
AGED ABOUT 85 YEARS,
OCC NIL,
R/O: HARGOD SANTAGAL,
POST: CHANDAVAR,
TQ: HONNAVAR,
DIST KARWAR-581334.
5. MAHONAR S/O NAGAPPA NAIK
AGED ABOUT 88 YEARS,
OCC: PENSIONER,
R/O: NO.97/2,
JEEVANBHEMANAGAR,
BENGALURU-560001.
PRAKASH S/O NAGAPPA NAIK
SINCE DEAD BY HIS L.R.S.
6. SMT. ANSUYA W/O PRAKASH NAIK
AGED ABOUT 77 YEARS,
OCC: HOUSEHOLD WORK,
7. NAVEEN S/O PRAKASH NAIK
AGED ABOUT 47 YEARS,
OCC: PRIVATE SERVICE,
BOTH ARE R/O: CYPRUS OAK,
FLAT NO.5, SY.NO.245 AND 247,
CHOWESHWARI LAYOUT,
BEGUR ROAD,
BENGALURU-560068.
8. SMT. MEERA VISHNU NAIK
AGED ABOUT 78 YEARS,
C/O: V.J.NAIK,
VINAYAKA, NO.34,
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RSA No. 100348 of 2021
3RD STAGE, 2ND BLOCK,
SRI. SHALNAVYANA LAYOUT,
WEST OF CHORD ROAD,
BENGALURU-8.
9. SMT. KOMALA HANUMANTH NAIK
AGED ABOUT 89 YEARS,
R/O: HOUSE NO.69B,
2ND BLOCK, RAJAJINAGAR,
BENGALURU-560010.
10. ASHOK NAGAPPA NAIK
AGED ABOUT 73 YEARS,
OCC: AGRICULTURE,
R/O: HARODI, TQ: KUMTA,
DIST: KARWAR-581316.
11. SMT. INDIRA W/O ASHOK NAIK
AGED MAJOR,
OCC: HOUSEHOLD DUTIES,
R/O: HARODI,
KUMTA TALUKA,
DIST: KARWAR-581316.
...RESPONDENTS
(BY SRI. S.V.YAJI FOR R1 TO R4;
SRI. K.RAGHAVENDRA RAO;
SMT. VIDYA IYER FOR R5,
SRI. A.R.PATIL FOR R6 AND R7;
SRI. SREENIDHI P FOR R8 AND R9, ADVOCATES;
R10 AND R11 ARE NOTICE SERVED)
THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 25.02.2021 PASSED IN
R.A.NO.85/2006 ON THE FILE OF THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, UTTARA KANNADA, KARWAR, ALLOWING THE
APPEAL AND DISMISSING THE JUDGMENT AND DECREE DATED
31.10.2003, PASSED IN O.S. NO.67/2003 ON THE FILE OF THE
CIVIL JUDGE (SR. DN), HONAVAR, DECREEING THE SUIT FILED
FOR DECLARATION, PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 100348 of 2021
JUDGMENT
This appeal is filed under Section 100 of CPC, by the
plaintiff challenging the judgment and decree passed in OS
No.67/2003 dated 30.06.2006 on the file of the Civil Judge
(Sr.Dn), Honavar and confirmed by the Principal District
Judge, Karwar in RA No.85/2006 dated 25.02.2021.
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 has filed a suit for partition and separate
possession of her legitimate share in the suit schedule
properties. It is asserted that the suit schedule properties
are the self acquired properties of deceased Nagappa, the
father of the plaintiff who was a teacher and after his death,
the plaintiff and defendants being Class I heirs are entitled
for share in the suit schedule properties. It is also asserted
that the defendants by colluding and by playing fraud and
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misrepresentation, got executed registered partition deed
and hence, the same came to be challenged and decree is
sought in this regard.
4. The suit is contested by defendant nos.1 and 6 by
filing written statement admitting the relationship, but, other
aspects came to be denied. Defendant nos.1 and 6
contended that all the suit schedule properties were self
acquired property of father Nagappa and during his life time,
on 11.02.1987, he has executed a registered partition deed
by partitioning the properties in favour of defendant nos.3,
4, 6 and the deceased mother. It is asserted that after the
partition, the suit schedule properties are being enjoyed by
respective sharers independently and the plaintiff has no
locus standi to file the suit. Hence, defendant nos.1 and 6
have disputed the claim. However, defendant nos.3 to 5 filed
a the written statement supporting the claim of the plaintiff.
5. The plaintiff got examined herself as PW.1 and
placed reliance on 21 documents marked at Exs.P1 to 21.
The son of defendant no.1 was examined as DW.1 while
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defendant no.6 was examined as DW2. Defendant no.2 was
examined as DW4 and one witness was examined as DW3.
The defendants have also placed reliance on 17 documents
marked at Exs.D.1 to 17.
6. The Trial Court on the basis of the rival pleadings
has framed the following issues:-
Issues
1. Whether the plaintiff proves that the
registered partition deed dated 11.2.1987
purported to have been executed by her
father deceased Nagappa Rama Naik is null
& void and not binding on her right?
2. Whether the plaintiff further proves that
the suit schedule "C" properties are also
self-acquired properties of her deceased
father?
3. Whether the plaintiff is entitled to
partition and separate possession of her
1/7th share over the suit schedule "A", "B" &
"C" properties against the defendants?
4. Whether the plaintiff is entitled to claim
past and future mesne profits from the
defendants No.6 & 7?
5. Whether the defendant No.1 proves that
the suit schedule "C" properties are his self-
acquired properties?
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6. Whether the defendant No.1 is entitled to
partition and separate possession of his 1/7th
share over the suit "A" & "B" properties?
7. Whether the defendant No.6 proves that
the suit of the plaintiff is barred by
limitation?
8. Whether the plaintiff proves that the
valuation of the suit properties is proper and
court fee paid thereof is sufficient?
9. What decree or order?
7. After hearing the arguments and after
appreciating the oral as well as documentary evidence, the
Trial Court answered issue No.1, 2 and 4 in the negative
while issue Nos.3 and 6 were answered partly in the
affirmative and issue nos.5, 7 and 8 were answered
affirmative and ultimately decreed the suit of the plaintiff in
part by awarding her 1/7th share in land at Sl.no.4 in suit
schedule 'A' property and property at Sl.no.2 in the suit
schedule 'B' property. The claim of the plaintiff in respect of
other properties came to be rejected.
8. Being aggrieved by this judgment and decree,
plaintiff has filed RA no.85/2006 on the file of the Principal
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District Judge, Karwar 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. Being aggrieved by these
concurrent findings, the plaintiff is before this Court.
9. Heard the arguments advanced by the learned
counsel for the appellant as well as respondents. Perused
records.
10. The learned counsel for the appellant would
contend that admittedly, the deceased father Nagappa was
suffering from paralytic stroke and the evidence of DW4
disclose that he was not having proper mental state of health
and it is evident that the registered partition deed was
obtained by fraud and misrepresentation. Hence, he would
contend that the trial Court is not justified in restricting the
claim of the plaintiff for two properties alone which were
allotted to the share of the mother and she is entitled for
share in all the properties.
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11. Per contra, the learned counsel for the
respondents would support the judgment and decree of the
trial Court. He would also contend that the father survived
for 11 years after execution of registered deed and hence,
plaintiff has no right or interest over the suit schedule
properties in the year 1987 to challenge the partition deed
and sought for dismissal of the appeal.
12. Having heard the arguments and perusing the
records, it is undisputed fact that the properties were owned
by the father Nagappa. Admittedly, he was a teacher and
also a social worker. It has come in evidence that he was
suffering from paralytic stroke in 1987. Further, it is also
admitted fact that the plaintiff was married in 1974 itself.
The partition was on 11.02.1987 and it is by registered deed.
This document is being challenged by the plaintiff on the
ground that it was obtained by fraud and misrepresentation.
13. At the outset, the plaintiff has not led any
material evidence and there is no proper pleading to lay
foundation to prove fraud and misrepresentation.
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Admittedly, she was not present when the document was
executed. The plaintiff is relying on the evidence of DW4
who is defendant no.2 in the suit wherein has admitted that
the father was suffering from mental illness due to paralytic
stroke in 1987. But, however, it is also important to note
that DW4 himself is party to the suit as defendant no.2 and
he did not file any written statement challenging the partition
deed. Further, it is submitted that defendant nos.3 to 5 are
sailing with plaintiff. However, they did not file any written
statement seeking counter claim nor filed any written
statement supporting the claim of the plaintiff. Nothing
prevented them from challenging the partition deed as
defendant nos.2 and 3 were also parties to the partition deed
as they were signatories. Defendant no.2 was examined as
DW4 did not explain what compelled him to sign the partition
deed.
14. Since properties are exclusive properties, the
father has got every right to dispose of the property as per
his wish. The learned counsel for the appellant contended
that if it is genuine partition deed, then he could have made
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provision for daughter or else he could have gifted the
properties rather than the partition deed. But, the said
arguments cannot be accepted as it is the discretion of the
owner of the properties how he is required to dispose off the
property.
15. After the execution of the registered partition
deed, the father survived for 11 years. The mother was also
party to the registered partition deed of 1987 and she died
one and half year after the partition deed. The mutation
entries were effected on the basis of the partition deed
immediately and plaintiff has knowledge of these mutation
entries. Hence now, her claim that the partition deed was a
out come of fraud and misrepresentation holds no water and
that relief is also hit by the law of limitation. Admittedly,
item no.4 of Schedule A and item no.2 of Schedule B were
allotted to the share of the mother in the partition. The trial
Court has rightly granted 1/7th share to the plaintiff in these
two properties. No illegality or perversity is found with the
order of the trial Court which is confirmed by the First
Appellate Court. No substantial questions of law is involved
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to admit the appeal. As such, the appeal being devoid of any
merits and needs to be dismissed.
16. Accordingly, I proceed to pass the following:
ORDER
The appeal is dismissed.
In view of disposal of the appeal, pending
interlocutory applications, if any, do not
survive for consideration and are disposed of
accordingly.
Sd/-
JUDGE
VMB
