Smt.Bheemawwa And Ors vs Sri Basappa And Anr
2023 Latest Caselaw 3230 Kant

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                                                      NC: 2023:KHC-K:1061
                                                       RFA No. 200136 of 2017




                               IN THE HIGH COURT OF KARNATAKA,

                                      KALABURAGI BENCH

                            DATED THIS THE 14TH DAY OF JUNE, 2023

                                             BEFORE

                          THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA

                        REGULAR FIRST APPEAL NO. 200136 OF 2017 (PAR)

                   BETWEEN:

                   1.    SMT.BHEEMAWWA D/O KAMMANNA,
                         AGE: 72 YEARS,
                         OCC: HOSUEHOLD & AGRI,
                         R/O ALLAPUR VILLAGE,
                         TALUKA JEWARGI,
                         DIST: KALABURAGI.

                   2.    SRI GOLLALAPPA S/O BHEEMAWWA,
                         AGE: 42 YEARS, OCC: AGRI,
                         R/O ALLAPUR VILALGE,
                         TALUKA JEWARGI,
                         DIST: KALABURAGI.
Digitally signed
by SACHIN          3.    SRI KAMANNA S/O BHEEMAWWA,
Location: HIGH           AGE: 40 YEARS, OCC: AGRI,
COURT OF                 R/O ALLAPUR VILALGE,
KARNATAKA
                         TALUKA JEWARGI,
                         DIST: KALABURAGI.

                   4.    SRI SHIVASHARANAPPA
                         S/O BHEEMAWWA,
                         AGE: 40 YEARS, OCC: AGRI,
                         R/O ALLAPUR VILALGE,
                         TALUKA JEWARGI,
                         DIST: KALABURAGI.
                                                                ...APPELLANTS

                   (BY SRI SHIVANAND PATIL, ADVOCATE)
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                                  NC: 2023:KHC-K:1061
                                    RFA No. 200136 of 2017




AND:

1.   SRI BASAPPA S/O JAYYAPPA,
     AGE: 52 YEARS, OCC: AGRI,
     AINAPUR VILLAGE, TALUKA JEWARGI,
     DIST: KALABURAGI-585112.

2.   SMT. KONTEWWA W/O HANMANTHA,
     D/O KAMANNA,
     AGE: 70 YEARS, OCC: HOUSEHOLD,
     R/O ALLAPUR VILLAGE, TALUKA JEWARGI,
     DIST: KALABURAGI-585112.
                                            ...RESPONDENTS

(BY SRI DESHPANDE G V. ADVOCATE R1 & R2)

     THIS RFA IS FILED UNDER SECTION 96 OF CPC, PRAYING
TO ALLOW THE APPEAL AND CONSEQUENTLY SET-ASIDE THE
IMPUGNED JUDGMENT AND DECREE DATED 20.09.2017
PASSED IN O.S. NO.20/2015 ON THE FILE OF SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE OF THE FIRST CLASS AT
JEWARGI IN THE INTEREST OF JUSTICE.

     THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

1. Defendants are in appeal.

2. One Kamanna had three daughters, Rajavva,

Bheemawwa and Kontewwa.

3. Kontewwa along with her sister Rajavva's son

Basappa instituted the suit seeking for partition and for

allotment of 1/3rd share in the suit property, which was

NC: 2023:KHC-K:1061 RFA No. 200136 of 2017

land bearing Sy.No.63 measuring 20 acres 06 guntas

situate at Allapur village of Jewargi Taluk in Kalaburagi

District.

4. It was their case that the property belonged to

Kamanna and on his death, his three daughters would be

entitled for 1/3rd share. But, Bheemawwa the first

defendant was managing the affairs of the property

without the consent and knowledge of her other sister and

nephew had got the suit property mutated in her favour

and was stand to alienate the property, as a result of

which the suit had to be filed.

5. It was also stated that thereafter Bheemwwa

had got the entries also mutated in favour of her sons i.e.,

defendants No.2 and 4 and they were trying to alienate

the property, as a consequence of which, the suit had to

be instituted.

6. Bheemawwa and her sons entered appearance

and contested the suit. Bheemawwa did not dispute either

the relationship of the parties or the fact that the

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properties were acquired by her father. She however took

up the contention that she had scarified her life by

becoming a Devdasi and her father with the consent of her

sisters Rajavva and Kontewwa, had orally given the land

to her for her survival since she could not marry anyone

during her lifetime and also because of loans that had

been taken from money lenders to celebrate the marriage

of her sisters. She stated that the money lenders had

occupied the suit land and the house and she had engaged

herself along with her two sons as bonded labourers and

had repaid the entire loan amount which was well within

the knowledge of her sisters.

7. She stated that she still continued as a bonded

labourer for the money that she had secured for repaying

the loan. She stated that after the death of her father, the

suit property was mutated in her name and she was

enjoying the land as an absolute owner and this was also

well within the knowledge of her sister and nephew. She

stated that thereafter she and her son had partitioned the

NC: 2023:KHC-K:1061 RFA No. 200136 of 2017

property in the year 1984-85 and they were enjoying the

same. She therefore stated that the claim of her sister and

nephew were without any justification.

8. The Trial court framed in all five issues.

9. Basappa, the nephew of Bheemawwa and

Kontewwa, the sister of Bheemawwa got themselves

examined as PWs.1 and 2 and seven documents were

admitted into evidence and marked as exhibits.

10. Kontewwa got herself examined as DW.1, apart

from another witness and got 18 documents admitted into

evidence and marked as exhibits.

11. The Trial Court on consideration of the material

placed before it, came to the conclusion that it had been

established that the plaintiffs were the members of the

Hindu Undivided Joint Family along with Bheemawwa and

they had also established that the suit schedule property

was their ancestral and joint family property and were in

joint possession of the same. The Trial Court recorded a

finding that Bheemawwa had failed to establish that the

NC: 2023:KHC-K:1061 RFA No. 200136 of 2017

suit land was orally given to her by her father with the

consent of her two sisters. The Trial Court accordingly

decreed the suit and granted 1/3rd share to Kontewwa and

1/3rd share to the branch of the other sister of Rajavva

apart from granting 1/3rd share to Bheemawwa.

12. Bheemawwa and her sons being aggrieved by

the said decree are in appeal.

13. Learned counsel for the appellants,

Sri Shivanand Patil, vehemently contended that the Trial

Court could not have decreed the suit, having regard to

the fact that Bheemawwa had become a Devdasi and the

suit property had been given to her by her father with the

consent of her two sisters. He submitted that this fact

stood established by the mutation effected in the year

1984-1985 itself and having regard to the length of time

that had elapsed, the Trial Court ought not to have

entertained the suit.

14. It was also contended that since Bheemawwa

had become a Devdasi, any transfer of property in her

NC: 2023:KHC-K:1061 RFA No. 200136 of 2017

favour did not require any instrument and the same was

immune from any kind of attack.

15. Learned counsel for the respondents on the

other hand supported the judgment and decree and

highlighted the fact that the Trial Court was bound to

decree the suit, after the evidence adduced indicated that

Bheemawwa was in fact married to one Rayappa and was

living with him which was also evidenced by Ex.P.7 the

voters list. He therefore submitted that the decreeing of

the suit could not be found fault with.

16. In the light of the argument advanced the only

point arise for consideration in this appeal is :

"Whether the Trial Court was justified in coming to the conclusion that plaintiffs were entitled to 1/3rd share in the suit properties. ?"

17. As noticed above, Bheemawwa did not dispute

the relationship as stated by the plaintiffs. In other words,

she admitted that she had an elder sister called Rajavva

who had one son called Basappa (plaintiff No.1) and

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another younger sister Kontewwa (plaintiff No.2).

Bheemawwa also did not dispute the fact that the suit

properties were joint family properties and that her father

had died intestate. In the light of the admitted position

that Kamanna had three daughters, it is obvious that on

his death all his three daughters would inherit his property

in equal proportions. In the light of this indisputable

position, the decree of the Trial Court granting 1/3rd share

to each branch of Kamanna's daughter cannot be found

fault with.

18. As far as the contention by the learned counsel

for the appellants that Bheemawwa had become a Devdasi

and she sacrificed her life for her two sisters to be married

is concerned, it is to be stated here that the Trial Court on

appreciation of Ex.P.7, which was the certified copy of the

voter's list, has correctly come to the conclusion that

Bheemawwa was in fact married to Rayappa and out of

their wedlock, defendants No.2 to 4 might have been born.

In fact, the Trial Court has noticed that Bheemawwa had

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admitted Ex.P.7 and had also admitted that she did not

have any documents to show that she was a Devdasi. The

Appellate Court has also noticed that the other witness

examined by Bheemawwa, had admitted that Rayappa

was residing with Bheemawwa and his dead body was in

fact buried in the suit land and defendants No.2 to 4 were

performing poojas to his grave.

19. In my view the conclusion arrived at by the

Trial Court, in the light of the evidence noticed above that

Bheemawwa had not established that she had become a

Devdasi to save the family from being indebted to money

lenders.

20. As a consequence, the judgment and decree of

the Trial Court cannot be found fault with and same is

affirmed. Consequently, the appeal is dismissed.

Sd/-

JUDGE

SN