Karnataka High Court
Smt.Gangamma W/O Benne Siddappa vs Shri. Benne Siddappa S/O B ... on 28 July, 2023
Bench: M.G.Umajpresided Bymguj
-1-
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M.G.UMA
REGULAR FIRST APPEAL NO.3046/2009 (PAR/POS)
C/W
REGULAR FIRST APPEAL NO.3017/2010
IN RFA NO.3046/2009:
BETWEEN:
1. SMT.GANGAMMA W/O. BENNE SIDDAPPA,
SINCE DECEASED BY LR'S.
2. SHRI SHIVANAND K.B. S/O. BENNE SIDDAPPA,
AGE:35 YEARS, OCC:SERVICE,
R/O: M.GONALU VILAGE, TQ AND DIST:BELLARY.
3. SHRI MOUNESH K.B. S/O. BENNE SIDDAPPA,
AGE:27 YEARS, OCC:AGRICULTURE,
R/O: M.GONALU VILAGE, TQ AND DIST: BELLARY.
4. SMT.SHESHAMMA @ KAVITA,
D/O. BENNE SIDDAPPA, AGE:40 YEARS,
Digitally
signed by OCC:HOUSEHOLD, R/O: M.GONALU VILAGE,
VINAYAKA TQ AND DIST: BELLARY.
BV
5. BHARATI D/O. BENNE SIDDAPPA,
AGE:31 YEARS, OCC:HOUSEHOLD,
R/O: M.GONALU VILAGE, TQ AND DIST: BELLARY.
...APPELLANTS
(BY SRI S.S. YADRAMI, SENIOR COUNSEL;
FOR SRI GIRISH V. BHAT, ADVOCATE)
AND:
1. SHRI. BENNE SIDDAPPA S/O. B. GANGAPPA,
AGE:67 YEARS, OCC.AGRICULTURE,
R/O: M.GONALU BELLARY,
TQ AND DIST: BELLARY.
-2-
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
2. SMT.BASAMMA D/O. DODDANAGAPPA,
AGE:48 YEARS, OCC:HOUSEHOLD,
R/O: M.GONALU VILLAGE,
TQ AND DIST: BELLARY.
3. SMT. K.SUREKHA W/O. K. RAJSHEKHAR,
AGE: 31 YEARS, OCC:HOUSEHOLD,
R/O: M. GONALU VILLAGE,
TQ AND DIST: BELLARY.
...RESPONDENTS
(NOTICE TO R1 TO R3 IS SERVED)
THIS RFA IS FILLED U/S 96 OF CPC., AGAINST THE JUDGMENT
& DECREE DATED 09.02.2009 PASSED IN O.S.NO.379/2007 ON THE
FILE OF THE I ADDITIONAL CIVIL JUDGE (SR.DN), BELLARY & ETC.
IN RFA NO.3017/2010:
BETWEEN:
1. SHRI SHIVANANDA S/O. BENNE SIDDAPPA,
AGE:32 YEARS, OCC:LECTURER IN VEERASAIVA
COLLEGE, CANTONMENT, BELLARY - 581 120.
2. SHRI MOUNESH K.B. S/O. BENNE SIDDAPPA,
AGE:28 YEARS, OCC:AGRICULTURE,
R/O: M.GONALU VILAGE,
TQ AND DIST: BELLARY 581 120.
...APPELLANTS
(BY SRI S.S. YADRAMI, SENIOR COUNSEL;
FOR SRI GIRISH V. BHAT, ADVOCATE)
AND:
SMT. K.B. BASAMMA W/O BENNE SIDDAPPA,
AGE:59 YEARS, OCC:AGRICULTURE, R/O: M.GONALU VILLAGE,
TQ AND DIST: BELLARY - 581 120.
...RESPONDENTS
THIS RFA IS FILLED U/S 96 OF CPC., AGAINST THE JUDGMENT
& DECREE DATED 09.02.2009 PASSED IN O.S.NO.54/2008 ON THE
FILE OF THE I ADDITIONAL CIVIL JUDGE (SR.DN), BELLARY & ETC.
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
THESE APPEALS, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 24.07.2023 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT
Plaintiff Nos.1 to 5 in OS No.379 of 2007 on the file of the
learned I Additional Civil Judge (Sr.Dn.), Bellary (hereinafter
referred to as 'the Trial Court' for brevity), have preferred RFA
No.3046 of 2009 and defendant Nos.1 and 2 in OS No.54 of
2008 (old OS No.353 of 2007) have preferred RFA No.3017 of
2010, being aggrieved by the common judgment and decree
dated 09.02.2009, decreeing OS No.379 of 2007 in part and
holding that plaintiff Nos.2 to 5 and defendant No.1 are entitled
for 1/5th share each in the suit schedule properties, while
denying their claim in respect of Sy.Nos.77-A, 88-D, 141-B,
230-A/1A, 230-A/2A and 212-C of Gonal village; and decreeing
OS No.54 of 2008 in favour of plaintiffs and permanently
restraining the defendants from interfering with the peaceful
possession and enjoyment of the suit schedule properties by
the plaintiffs therein.
2. For the sake of convenience, the parties are
referred to as per their ranks and status before the Trial Court
in OS No.379 of 2007.
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
3. Brief facts of the case are that, in OS No.379 of
2007, schedule 'A' to 'O' describes the landed properties with
their survey numbers, extent and boundaries as mentioned
therein. It is contended that plaintiff No.1 is the legally wedded
wife of defendant No.1 and plaintiff Nos.2 to 5 are their
children. The schedule properties were acquired by Benne
Gangappa, who is the father-in-law of plaintiff No.1 and the
grand father of plaintiff Nos.2 to 5. It is contended that
defendant No.1 being the husband of plaintiff No.1 contacted
second marriage with defendant No.2 during the life time of
plaintiff No.1 and during subsistence of their marriage.
Defendant No.2 started interfering with the family affairs of
plaintiff No.1 and defendant No.1 and there was frequent rifts
in the family. Defendant No.1 at the behest of defendant No.2
planned to deprive the plaintiffs from their legitimate share in
the suit schedule properties. Defendant No.1 willfully
concocted a document styled as Memorandum of Family
Partition dated 10.09.2005. It is only at the instigation of
defendant No.2, defendant No.1 relinquished his rights over the
schedule properties in favor of defendant No.2. Defendant
No.2 in turn bequeathed the property shown in schedule-I in
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
favour of defendant No.3. Since the said property is the
ancestral property, defendant No.1 had no absolute right to
relinquished his rights in favour of defendant No.2. When
defendant No.2 has not acquired any right over the said
property, she could not have bequeathed the same in favour of
defendant No.3. Apparently, the conduct of dendant Nos.1 to 3
disclose that they are willing to oust the plaintiffs from getting
any share in the schedule properties and therefore, those
documents relied on by defendant Nos.1 to 3 are not binding on
the plaintiffs. It is contended that the plaintiffs demanded
defendant No.1 to effect partition by metes and bounds and
allot their shares, but defendant No.1 is reluctant to do so.
Therefore, cause of action arose for the suit.
4. It is contended that defendant No.2 had filed OS
No.353 of 2007 against plaintiff Nos.2 and 3 claiming a decree
for perpetual injunction and the same is still pending. It is
stated that the plaintiffs are in joint possession and enjoyment
of the schedule properties and they are cultivating it peacefully.
Plaintiff No.1 questioned the validity of the order of mutation
passed by the Tahsildar in respect of the schedule properties in
favour of defendant No.2 by filing a revision petition before the
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
Deputy Commissioner, Bellary. The said proceedings is also
still pending. Therefore, the plaintiffs sought for 1/7th share
each in the schedule properties by metes and bounds.
5. Defendant No.1 filed the written statement denying
the contention taken by the plaintiffs. It is contended that
Schedule-H property is the absolute property of defendant No.2
and the same was purchased by her from one Laxmi Devi under
the registered sale deed dated 24.09.2001, out of her own
funds. The property described in Schedule-J is the absolute
property of defendant No.2 as the same was gifted in her
favour by her husband defendant No.1, under the registered
gift deed dated 18.09.2001. Similarly, the property described
in Schedule-J(i) was purchased by defendant No.2 under the
registered sale deed dated 12.09.2001, out of the amount
given to her by her parents. Therefore, the plaintiffs have no
right whatsoever over these properties.
6. It is further contended that the property described
in Schedule-I was bequeathed in favour of defendant No.2 by
her husband towards her maintenance under the partition
between two wives of defendant No.1 and since then defendant
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
No.2 is in possession and enjoyment of the said property and
record of rights also stands in her name. Defendant No.2 in
turn executed the registered gift deed in respect of the
property described in Schedule-I in favour of her daughter -
defendant No.3. Therefore, the plaintiffs are not having any
share over the said property.
7. It is also contended that the plaintiffs have
deliberately left out the properties from seeking partition and
separate possession in respect of Sy.No.200 measuring 2 acres
situated at Gonal village, which was purchased by defendant
No.1 in the name of plaintiff No.1, under the registered sale
deed dated 26.07.1979. Similarly, Sy.Nos.230-A and 230-B
measuring 1.80 acres which were partitioned between plaintiff
No.5 and defendant No.3 are also not shown in the schedule.
It is further contended that Sy.No.230-A is the self acquired
property of defendant No.1 and it is not liable for partition. It
is stated that plaintiffs are also cultivating Sy.No.37-C
measuring 2.009 cents, but the same is not pleaded in the
plaint.
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
8. It is contended that the partition deed dated
10.09.2005 is a valid document as the same was entered into
between plaintiff No.1 and defendant No.2. It is contended
that plaintiff No.2 is working as lecturer in Veerashaiva College,
Bellary and he is in possession and enjoyment of the properties
which are standing in his name. Defendant No.1 is cultivating
the schedule properties, except the properties which are
standing in the name of defendant No.2. Therefore, it is
contended that the plaintiffs are not entitled for any share in
the schedule properties. There is no cause of action for the
suit. Hence, prayed for dismissal of the suit.
9. Plaintiff No.1 filed the rejoinder denying the
contention of defendant No.1 raised in the written statement.
The contention of defendant No.1 that he had purchased the
property bearing Sy.No.200 measuring 2 acres in the name of
plaintiff No.1 is denied. Per contra, it is contended that the
said property was purchased by plaintiff No.1 out of her own
funds. However, it is contended that Sy.No.230-A referred to
by defendant No.1 is described in Schedule-K of the plaint.
Since Sy.No.200 is the self acquired property of plaintiff No.1,
the same is not liable for partition. All the properties which are
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
liable for partition are described in the schedules and therefore,
prayed for decreeing the suit.
10. On the basis of these pleadings, the Trial Court
framed the following issues and additional issues for
consideration:
"1. Whether plaintiffs prove that all suit
schedule properties are joint family properties?
2. Whether defendants prove that item No.H,
J(i), J(ii) are the absolute and separate properties of
defendant No.2 as such not available for partition?
3. Whether defendants prove that item No.1
property is given to D-2 towards her maintenance?
4. Whether plaintiffs prove that gift of item 'I'
in favour of D-3 by D-2 is not binding upon them?
5. Whether plaintiffs are entitled for a share in
the suit schedule properties by metes and bounds?
6. What order or decree?
Additional Issues:
1. Whether D1 prove that Sy.No.200
measuring 2 acres is purchased by him in the name of
plaintiff No.1 under registered sale deed dated 26.7.1079?
2. Whether non-inclusion of properties
mentioned in para 4(a) of written statement is bad for
maintainability of suit?"
11. Defendant No.2 in OS No.379 of 2007 and plaintiff
in OS No.54 of 2008 contended that she is the absolute owner
- 10 -
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
in possession of Sy.No.212-C as she it got from her husband in
the partition effected on 28.01.1998. The revenue record was
mutated in her name on 06.06.1998 and that she is in
exclusive possession and enjoyment of the said property. It is
also contended that Sy.No.77-A of Gonal village is bequeathed
in her favour by her husband defendant No.1 under the
registered gift deed dated 18.01.2001. The revenue record in
respect of the said property was also standing in her name and
she is in exclusive possession and enjoyment of the same. She
also contended that Sy.No.88-D measuring 2.89 acres situated
at Gonal village was purchased by her from one Laxmi Devi,
under the registered sale deed dated 24.09.2001 and is in
possession of the same. Thus, it is contended that she is in
possession and enjoyment of the schedule properties and she is
entitled for decree for perpetual injunction, restraining the
defendant Nos.1 and 2 who are plaintiff Nos.2 and 3 in OS
No.379 of 2007, from interfering with the peaceful possession
and enjoyment of the properties.
12. The defendants in the said suit have filed the
written statement denying the contention taken regarding the
exclusive possession of Sy.No.88-D and 212-C of Gonal village
- 11 -
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
in the partition. The contention of the plaintiff that she has
purchased Sy.No.88-D under the registered sale deed from out
of her own fund is also denied. It is contended that these
properties are the joint family properties and defendant No.1
had no right to bequeath the same in favour of his second wife
and she is not entitled for any perpetual injunction.
Accordingly, prayed for dismissal of the suit.
13. On the basis of these pleadings, the Trial Court
framed the following issues and additional issues for
consideration:
"1. Whether the plaintiff proves that she is the
absolute owner and possessor of suit schedule property
i.e., Sy.No.77-A, 212-C and 88-D situated at M Gonal
village as on the date of suit?
2. Whether the plaintiff further proves that the
defendants are causing obstruction over the suit schedule
property?
3. Whether the defendants prove that there is no
partition effected in between the parties as alleged by the
plaintiff?
4. Whether the plaintiff is entitled for permanent
injunction as prayed for?
5. What order or decree?"
- 12 -
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
14. Since there was an order passed by the learned
Principal District and Sessions Judge, Bellary in Misc.Case
No.14 of 2008 to club both the cases together, common
evidence was led.
15. Plaintiffs in OS No.379 of 2007 examined PWs.1 to
4 and got marked Exs.P1 to P24 in support of their contention.
The defendants examined DWs.1 to 4 and got marked Exs.D1
to D32 in support of their defence. The Trial Court after taking
into consideration all these materials on record, passed the
common judgment and decree, decreeing OS No.379 of 2007 in
part, holding that plaintiff Nos.2 to 5 and defendant No.1 are
entitled for 1/5th share each in the suit schedule properties,
excluding Sy.Nos.77-A, 88-D, 141-B, 230-A/1A, 230-A/2A and
212-C of Gonal village. It is directed that the share of
defendant No.1 shall be equated to the right and interest
created by him in favor of defendant No.2 in respect of
Sy.No.77-A under Ex.D4, as far as possible. The suit in OS
No.54 of 2008 is decreed in favour of plaintiffs, permanently
restraining the defendants from interfering with the peaceful
possession and enjoyment of the suit schedule properties by
the plaintiffs therein.
- 13 -
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
16. Being aggrieved by the same, the plaintiffs in OS
No.379 of 2007 have preferred RFA No.3046 of 2009 and
defendant Nos.1 and 2 in OS No.54 of 2008 have preferred RFA
No.3017 of 2010.
17. Heard Sri S S Yadrami, learned senior advocate for
the appellants. Respondents remained absent, in spite of
service of notice. Perused the materials including the Trial
Court records.
18. Learned senior advocate for the appellants
contended that the relationship between the parties are not in
dispute. He submitted that plaintiff No.1 is admittedly the
legally wedded wife of defendant No.1 and plaintiff Nos.2 to 5
are their children. During the subsistence of marriage of
defendant No.1 with plaintiff No.1, he could not have
contracted the second marriage with defendant No.2.
Therefore, the said relation is not recognized under law. All the
schedule properties are the ancestral properties as the same
were acquired by their forefathers. Defendant No.1 who is
examined as DW1 categorically admitted this fact in his
evidence. The plaintiffs have produced sufficient materials to
- 14 -
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
substantiate their contention. When it is proved that all the
schedule properties described in various schedules in OS
No.379 of 2007, defendant No.1 could not have bequeathed
any of the properties in favour of defendant No.2 under any
document. Moreover, DWs.3 and 4 have categorically admitted
that the properties that are standing in the name of defendant
No.2 were purchased by defendant No.1 by paying the
consideration from out of the consideration amount received by
selling joint family properties. Under such circumstances,
defendant No.2 cannot claim exclusive right over the said
properties. But they are liable for partition between plaintiffs
and defendant No.1.
19. Learned senior advocate submitted that, even
though the Trial Court decreed the suit of the plaintiffs in part,
it has committed an error in excluding Sy.Nos.77-A, 88-D, 141-
B and 212-C of Gonal village. The reasons assigned by the
Trial Court to exclude those properties are without any basis.
Ex.P21 - the copy of the mutation entry dated 17.11.1987
discloses that after the death of father of defendant No.1, his
name came to be entered in the revenue records in respect of
the schedule property, but the fact remains that it is an
- 15 -
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
ancestral property and the same was admitted by DW1 during
his cross examination. Therefore, defendant No.1 could not
have bequeathed this property in favour of defendant No.2
under Ex.D4, to the exclusion of the plaintiffs. Similarly,
Sy.No.141-B was purchased by defendant No.1 in the name of
defendant No.2 after selling Sy.No.75-B2 measuring 3 acres in
favour of one Siddappa, which is an ancestral property. Under
such circumstances, defendants cannot take advantage of
Ex.D5 the sale deed dated 12.09.2001 in favour of defendant
No.2. DWs.3 and 4 during cross examination categorically
admitted these facts.
20. Learned senior advocate further submitted that
even Sy.No.88-D was purchased by defendant No.1 in the
name of defendant No.2 after selling the joint family property
bearing Sy.No.75-B2 and therefore, defendants cannot claim
any right under Ex.D6. DW4 has categorically admitted this
fact during cross examination. He further submitted that as
per Ex.P19 - the mutation entry dated 09.05.1991, Sy.No.212-
C was purchased by the father of defendant No.1 from one
Basanagouda and his sons on 21.04.1969. After the death of
father of defendant No.1, the revenue records mutated in the
- 16 -
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
name of defendant No.1 on 21.08.1991. DWs.1 and 2 have
categorically admitted during cross examination that the
properties are the ancestral properties of plaintiff No.1 and
defendant No.1. Therefore, Ex.D32 cannot be relied on by the
defendants to contend that there was partition between plaintiff
No.1 and defendant No.2. Plaintiff No.1 or defendant No.2 are
not the parties to Ex.D32 and no such document came into
effect at any point of time. Under such circumstances,
defendant No.2 has not acquired any right over the property
and she could not have bequeathed the same in favour of her
daughter - defendant No.3.
21. Learned senior advocate submitted that when such
clinching documents are produced and fatal admissions are
available in the evidence of DWs.1 to 4, the Trial Court
committed an error in excluding these properties from effecting
partition in favour of plaintiff Nos.2 to 5. Similarly, it has
committed an error in restraining plaintiff Nos.2 and 3 in OS
No.379 of 2007 who are the defendants in OS No.54 of 2008,
by granting perpetual injunction. Hence, he prays for allowing
both the appeals by decreeing the suit OS No.379 of 2007 and
dismissing OS No.54 of 2008, in the interest of justice.
- 17 -
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
22. In view of the submissions made by learned senior
advocate for the appellants, the point that would arise for my
consideration is:
"Whether the impugned common judgment and
decree passed by the Trial Court suffers from infirmities
and calls for interference by this Court?"
My answer to the above point is in the 'Partly in the
Affirmative' for the following:
REASONS
23. The relationship between the parties are not in
dispute. Plaintiff Nos.1 to 5, who are the wife and children of
defendant No.1 have filed the suit OS No.379 of 2007 seeking
partition and separate possession of their share in the
properties morefully described in Schedules - 'A' to 'O'.
Defendant No.2 claiming to be the second wife of defendant
No.1 filed the suit OS No.54 of 2008 restraining defendant
Nos.1 and 2 in the suit, who are plaintiff Nos.2 and 3 in OS
No.379 of 2007 in respect of the properties described in
Schedules - 'H', 'I' and 'J(i)' in OS No.379 of 2007. The Trial
Court while decreeing the suit OS No.379 of 2007 in part held
that plaintiff Nos.2 to 5 and defendant No.1 are entitled for
- 18 -
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
1/5th share each in the suit schedule properties and excluded
Sy.Nos.77-A, 88-D, 141-B, 230-A/1A, 230-A/2A and 212-C of
Gonal village. It decreed the suit OS No.54 of 2008 granting
permanent injunction in respect of the schedule properties
described in the said suit. Plaintiff Nos.2 to 5 in OS No.379 of
2007 have preferred RSA No.3046 of 2009 challenging the
exclusion of Sy.Nos.77-A, 212-C, 141-B and 88-D morefully
described in the schedule. The defendants in OS No.54 of
2008 have preferred RFA No.3017 of 2010 challenging the
decree for permanent injunction in respect of Sy.Nos.88-D, 77-
A and 212-C of Gonal Village.
24. Learned senior advocate representing the
appellants has also restricted his arguments only in respect of
Sy.No.77-A described in Schedule-J(i), Sy.No.141-B described
in Schedule-J(ii), Sy.No.88-D described in Schedule-H and
Sy.No.212-C described in Schedule-I. Therefore, I restrict my
discussion only with regard to these items of the properties,
which are challenged by the appellants.
25. The defendants rely on Ex.D4 the gift deed dated
18.09.2001 executed by defendant No.1 in favour of defendant
- 19 -
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
No.2 bequeathing Sy.No.77-A of Gonal village morefully
described in Schedule-J(i). It is the contention of defendant
No.1 that since defendant No.2 is his wife, he bequeathed the
said property in her favour towards her maintenance, but
Ex.P21 the mutation entry dated 17.11.1987 refers to mutation
of the name of defendant No.1 in respect of several properties
including Sy.No.77-A of Gonal village, after the death of his
father - Benne Gangappa. Moreover, DW1 in his evidence
admitted that the said property was belonging to his father and
he acquired it after his death. Therefore, this property is the
ancestral property in which plaintiff Nos.2 to 5 and defendant
No.1 are having equal right.
26. Defendant Nos.1 and 2 are relying on Ex.D32 said
to be the Memorandum of Partition dated 28.01.1998, to
contend that Sy.No.212-C of Gonal village which is fully
described in Schedule-I was partitioned between plaintiff No.1
and defendant No.2 and since there was already a partition in
the said property, the plaintiffs are not entitled for any share.
Ex.D32 styled as partition deed was said to be executed by
defendant No.1 in favour of plaintiff No.1 and defendant No.2 in
respect of Sy.No.62-A/2 which is fully described in Schedule-D
- 20 -
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
and Sy.No.212-C fully described in Schedule-I. Even though
there is reference to plaintiff No.1 and defendant No.2, they are
not the signatories to this document. Even though the
defendants contended that it is a memorandum of partition, the
document is styled as partition deed, the same is not
registered. Under such circumstances, defendant Nos.1 and 2
cannot rely on this document to contend that Sy.No.212-C of
Gonal village is not liable for partition. More so, when plaintiff
No.1 refers to Sy.No.62-A/2 of Gonal village in schedule-D for
seeking partition, which was said to have been allotted to her
share under Ex.D32. Therefore, I am of the opinion that both
Sy.Nos.212-C and 62-A/2 being the ancestral properties, are
liable for partition.
27. Schedule-J(ii) of the plaint described Sy.No.141-BC
and defendant No.2 contends that it is her self acquired
property as she purchased it under the sale deed Ex.D5 dated
12.09.2001. Similarly, she contended that Sy.No.88-D
morefully described in Schedule-H of the plaint also not liable
for partition, as the same was purchased by her under the sale
deed Ex.D6 dated 24.09.2001. As per Exs.D5 and D6, it is an
out-right sale in favour of defendant No.2 and she has paid the
- 21 -
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
consideration amount. Prima facie, the contention taken by
defendant No.2 in that regard is substantiated by the registered
sale deeds itself. The contention of the plaintiffs that these two
items of properties were purchased by defendant No.1 in the
name of defendant No.2 by paying the consideration amount
from out of the amount, which he received by selling the
ancestral property bearing Sy.No.75-B/2 measuring 3 acres.
Except taking such contention, the plaintiffs have not placed
any materials in support of such contention.
28. Learned senior advocate contended that DWs.3 and
4 who are examined on behalf of the defendants have admitted
that defendant No.1 had sold Sy.No.75-B/2 of Gonal village and
purchased these items of properties in the name of defendant
No.2. On going through the cross examination of DW3, he
pleaded ignorance regarding purchase of land in Sy.No.88-D
from out of the sale proceeds by selling Sy.No.75-B/2.
However, the witness admits that defendant No.1 purchased
the land from Smt.Laxmi Devi in the name of Basamma. DW4
has also given similar evidence. In the absence of any
clinching materials to substantiate the fact that defendant No.1
sold the ancestral property bearing Sy.No.75-B/2 and from out
- 22 -
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
of the consideration amount which he received, purchased
these items of properties in the name of defendant No.2, the
stray admission in the cross examination of DWs.3 and 4
cannot be accepted to hold that the sale deeds which are
produced as per Exs.D5 and D6 are the benami transactions
entered into by defendant No.1 in the name of defendant No.2.
If at all, defendant No.1 had sold Sy.No.75-B/2 and from out of
the sale consideration purchased these properties, the plaintiffs
would be in a position to produce some documents in proof of
the same. When best evidence is not produced before the
Court, the contention taken by the appellants cannot be
accepted.
29. Learned senior advocate contended that DWs.3 and
4 have categorically admitted during cross examination that all
the schedule properties are the ancestral properties and
therefore, the defence taken by defendant Nos.1 and 2 are
liable to be rejected. During cross examination of DWs.3 and
4, the witnesses have baldly admitted that the schedule
properties are the ancestral properties of plaintiffs and
defendant No.1. When there are number of properties
described in the schedule, the said evidence of DWs.3 and 4
- 23 -
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
cannot be considered as specific and clear admission with
regard to the nature of property, in the absence of any proof to
substantiate the contention of the plaintiffs. Therefore, I am of
the opinion that Sy.No.77-A fully described in Schedule-J(i) and
Sy.No.212-C fully described in Schedule-I of the plaint are the
joint family properties, in which, plaintiff Nos.2 to 5 and
defendant No.1 are equally entitled for a share. However
Sy.No.141-BC described in Schedule-J(ii) and Sy.No.88-D
described in Schedule-H of the plaint are not the joint family
properties, in which plaintiff Nos.2 to 5 could claim share. But
they are the self acquired properties of defendant No.2 under
the registered sale deeds Exs.D5 and D6. Therefore, these two
items are not liable for partition amongst the parties to the suit.
30. When it is held that Sy.No.88-D of Gonal village
which is referred to above as the self acquired property of
defendant No.2, she is entitled for permanent injunction
restraining the defendants in OS No.54 of 2008. However,
when it is held that Sy.Nos.77-A and 212-C of Gonal village
referred to above are the joint family properties, plaintiff No.2
is not entitled for grant of permanent injunction against the
defendants in OS No.54 of 2008.
- 24 -
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
31. I have gone through the impugned judgment and
decree passed by the Trial Court. Even though the Trial Court
has appreciated the materials on record in a proper
perspective, its findings in respect of Sy.Nos.77-A and 212-C of
the schedule properties are not acceptable. It has committed
an error in granting permanent injunction restraining the
defendants in OS No.54 of 2008 in respect of Sy.Nos.212-C and
77-A in view of the discussions held above. Therefore, the
impugned judgment and decree passed by the Trial Court calls
for interference. Accordingly, I answer the above point in
Partly in Affirmative and proceed to pass the following:
ORDER
(i) The appeals are allowed in part with costs.
(ii) The common judgment and decree dated
09.02.2009 passed in OS No.379 of 2007 and OS No.54 of
2008 on the file of the learned I Additional Civil Judge (Sr.Dn.),
Bellary, is hereby modified.
(iii) The impugned common judgment and decree of the
Trial Court in respect of Sy.Nos.77-A and 212-C of Gonal village
are to be excluded from effecting partition and that defendant
- 25 -
NC: 2023:KHC-D:7914
RFA No. 3046 of 2009
C/W RFA No. 3017 of 2010
No.1 shall have right to equity in respect of Sy.No.77-A are set
aside. However, defendant No.1 will be at liberty to seek
equity in the final decree proceedings.
(iv) Similarly, decreeing the suit OS No.54 of 2008 in
respect of Sy.Nos.77-A and 212-C of Gonal village is also set
aside.
(v) Plaintiff Nos.2 to 5 and defendant No.1 are also
entitled for 1/5th share in Sy.Nos.77-A and 212-C of Gonal
village by metes and bounds.
The judgment and decree of the Trial Court in respect of
other properties in suit OS No.379 of 2007 and OS No.58 of
2008 are confirmed.
Registry to draw decree accordingly and send back the
Trial court records along with copy of this judgment and
decree.
SD/-
JUDGE
BGN
