Smt.Kashamma Died By Her Lrs vs Mallikarjun S/O Late Shankreppa ...
2023 Latest Caselaw 1918 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

       DATED THIS THE 17TH DAY OF MARCH 2023

                      BEFORE

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

     REGULAR FIRST APPEAL No.200018 OF 2015

BETWEEN

SMT.KASHAMMA
( D/O SHANAKREPPA MALSHETTE
W/O LATE GURULINGAPPA
DIED BY HER LRS

1)   RAJAMATI
     D/O LATE GURULINGAPPA MALLIKARJUN BALURE,
     AGED ABOUT 45 YEARS,
     OCC:HOUSE HOLD,
     R/O LIG 43 KHB COLONY,
     BIDAR.

2.   SMT. MALLAMMA
     D/O LATE SHANKREPPA
     (W/O LATE SHAMRAO HARPALLE)
     AGED ABOUT 55 YEARS,
     OCC:HOUSE HOLD,
     AND AGRIL. R/O GODHIHIPPARGA
     TQ. BHALKI, DIST: BIDAR.

3.   SMT. SHARNAMMA
     D/O SHAREPPA
     (W/O GANGASHETTY PATIL)
     AGED ABOUT 53 YEARS,
     OCC:HOUSE HOLD,
     R/O MAMDAPUR, DIST: BIDAR.

4.   SMT. KAVERI
     D/O LATE SHANKREPPA MALSHETTE,
                             2



      (W/O LATE SHIVRAJ KARKALE)
      AGED ABOUT 49 YEARS, HOUSE HOLD,
      R/O BASVESHWAR CIRCLE,
      GUNJ BHALKI
      TQ. BHALKI, DIST: BIDAR.
                                         ...APPELLANTS
(BY SRI SHARANABASAPPA K. BABSHETTY, ADVOCATE)

AND

1.    MALLIKARJUN
      S/O LATE SHANKREPPA MALSHETTE
      AGED ABOUT 51 YEARS
      OCC AGRICULTURE,

2.    VAIJINATH
      S/O LATE SHANKREPPA MALSHETTE
      AGED ABOUT 47 YEARS
      OCC:AGRICULTURE,

3.    VISHWANATH
      S/O LATE SHANKREPPA MALSHETTE
      AGED ABOUT 45 YEARS
      OCC:AGRICULTURE,

4.    SMT. SHANTABAI
      W/O LATE SHANKREPPA MALSHETTEE,
      AGED ABOUT 41 YEARS
      OCC:HOUSEHOLD,AGRICULTURE

5.    SUBHASH
      S/O SHIVARAJ CHAKURE,
      AGED ABOUT 47 YEARS
      OCC:AGRICULTURE

      ALL ARE R/O JANTI, TQ. BHALKI,
      DIST: BIDAR 585401.
                                         ...RESPONDENTS
(BY SRI G G CHAGASHETTI, AND
   SRI S S DESAI, ADVOCATES FOR R2 & R4
   NOTICE TO R1 SERVED AND UNREPRESENTED
   NOTICE TO R5 IS HELD SUFFICIENT V/O DTD 2.8.2016)
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   THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 28.11.2014 PASSED IN O.S.
NO. 21/2012 PENDING ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC AT BHALKI. WHEREIN, THE SUIT WAS
DISMISSED AND ETC.


      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
30.01.2023,  COMING    ON  FOR   'PRONOUNCEMENT  OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:



                         JUDGMENT

The above first appeal is filed under Section 96

of the Code of Civil Procedure (hereinafter referred to

as "the CPC") by the Plaintiffs challenging the

judgment and decree dated 28.11.2014 passed in

O.S.No.21/2012 by the Senior Civil Judge & JMFC,

Bhalki.

2. The parties are referred to as per the rank

before the Trial Court for the sake of convenience.

3. It is the case of the Plaintiffs that Plaintiff

Nos.2 to 4 are the sisters and Defendant Nos.1 to 3

are the brothers, they being the children of late

Shankreppa Malshette. The Plaintiff No.1 is the

daughter of one Smt.Kashamma who was the sister of

Plaintiff Nos.2 to 4 and Defendant Nos.1 to 3. That the

deceased Shankreppa Malshette was the owner of the

suit schedule properties in which schedule-A to the

plaint are the agricultural properties and schedule-B is

a house property. That after the death of their father,

the Defendant Nos.1 to 3 without giving any share to

the Plaintiffs got the revenue records of the plaint

schedule properties transferred in their favour, and

they have also alienated certain portions of the plaint

schedule properties. The Defendant No.5 is the

subsequent purchaser of some of the plaint schedule

properties. It is further case of the Plaintiffs that the

suit properties are the ancestral joint family properties

of the Plaintiffs and Defendant Nos.1 to 3 and since it

has not been partitioned, they filed the suit seeking

for 1/7th share each in the plaint schedule A and B

properties.

4. The suit filed by the Plaintiffs has been

contested by the Defendants. Defendant Nos.1 and 3

have filed their written statement on 17.09.2014

denying the plaint averments. The said Defendants

have contended that due to joint family legal

necessities, they had obtained a loan from Defendant

No.5 by executing a registered Sale Deed as a security

for the loan amount and on re-payment of the said

loan amount, the said property was to be transferred

back to Defendant Nos.1 and 3 or the Sale Deed to be

cancelled. However, due to unavoidable circumstances

and other family disputes, the said loan amount has

not been repaid. The Defendant Nos.1 and 3 have

sought for decree of the suit filed by the Plaintiffs.

5. The Defendant No.2 has filed his written

statement on 30.10.2013 which has also been

adopted by Defendant No.4. In the said written

statement the case of the Plaintiffs has been denied.

The said Defendant has contended that not all

properties are ancestral joint family properties. It is

further contended that pursuant to an oral partition,

the properties were divided and that the mother of the

Plaintiff Nos.2 to 4 and Defendant Nos.1 to 3 has also

put her thumb impression as one of the witness to the

alienations made in respect of the suit properties.

Since the mother of the Plaintiff No.1 died, the

plaintiff was brought up by the Defendant Nos.1 to 4

till she attained the age of majority. That the Plaintiff

No.2 was given in marriage to one Vishwanath Bali at

Janti and after he deserted her, she was again given

in marriage in Ghodipurga Village. That Plaintiff No.3

was given in marriage to one Vaijinath at Tarnalli

Village, and she was also deserted by them.

Thereafter, she was given in marriage at Mamadpur

Village. The Defendant No.2 sought for dismissal of

the suit of the Plaintiffs.

6. The Defendant No.5 filed his written

statement on 15.12.2012 and denied the case of the

Plaintiffs. The said defendant further contended that

to his knowledge there was an oral partition between

the Defendant Nos.1 to 3 and sisters long back due to

which the suit properties were mutated in the name of

Defendant Nos.1 to 3 in the revenue records with

regard to the respective portions allotted in their

favour which was within the knowledge of the

Plaintiffs. That neither the Plaintiffs raised any

objection in the mutation proceedings nor challenged

the entries. That the said Defendant is the purchaser

of portions of the suit properties and is personally

cultivating the same. By virtue of the Sale Deed dated

04.0.2004, the revenue records have been mutated in

his name. That the suit of the Plaintiffs is also barred

by limitation.

7. The Trial Court upon the pleadings by the

parties frames the following issues and additional

issues;

1. Whether plaintiffs prove that suit the ancestral and joint schedule properties are the ancestral family properties of themselves and defendant No. 1 to 3 and they and defendants No.1 to 3 are in the joint possession and enjoyment of the same?

2. Whether plaintiffs prove that they are having their legitimate share in the suit properties?

3. Whether plaintiffs prove that transfer made by defendant No.1 to 3 in favour of defendant No.4 and 5 by sale or any means is not bindings on them?

4. Whether defendant No.5 proves that took place between defendant No.1 to 3 and their his written sister long back as pleaded in statement?

5. Whether suit is barred by limitation?

6. Whether suit is properly valued and court fee paid is sufficient?

7. Whether plaintiffs are entitled to declaration, partition and separate possession as prayed for?

8. What order or decree?

ADDL. ISSUES

1. Whether defendant No.2 proves that suit property were self acquired properties of his father and his

father has effected oral partition among defendants 1 to 3 as pleaded in his W.S.?

2. Whether defendant No.5 proves that suit is bad for non-joinder necessary parties?

8. The Plaintiff No.4 examined herself as PW.1

and marked Exs.P1 to P10. The Defendant No.2

examined himself as DW.1 and marked Exs.D1 to D6.

The Trial Court by its judgment and decree dated

28.11.2014 dismissed the suit filed by the Plaintiffs.

Being aggrieved, the present first appeal is filed by

the Plaintiffs.

9. Learned counsel for the

Appellants/Plaintiffs contended that the relationship

between the parties having been admitted and the

suit properties admittedly originally belonging to late

Shankreppa Malshette, who was the father of Plaintiff

Nos.2 to 4 and Defendant Nos.1 to 3 and grand-father

of Plaintiff No.1, the suit of the Plaintiffs claiming 1/7th

share each ought to have been decreed. That although

certain alienations have been made, the properties

mentioned in the plaint have not been alienated and

only a portion of item No.1 of plaint schedule A

property has been alienated and the remaining

properties being available for partition, the relief

claimed by the Plaintiffs in the suit ought to have been

granted. It is further contended that the Defendants

having failed to prove the oral partition as contended

by them and hence the suit of the Plaintiffs ought not

to have been dismissed.

10. Per contra, learned counsel for the

Respondents/Defendants contended that the Plaintiffs

have not produced any documents to demonstrate

that the suit properties are the joint family properties

of the Plaintiffs; that they have not demonstrated as

to how they are entitled to share and necessary plea

regarding the same has not been averred in the plaint.

The Trial Court considering the case put-forth by the

parties has rightly appreciated the material available

on record and has dismissed the suit of the Plaintiffs

which is not required to be interfered with in the

present appeal.

11. I have considered the submissions made by

both the parties and perused the material available on

record. The question that arises for my consideration

are;

(a) Whether the plaintiffs prove that the suit properties are the joint family properties of themselves and defendant Nos.1 to 3?

(b) Whether the plaintiffs are entitled to a share in the suit properties?

12. The plaintiffs have contended in the plaint

that the properties belonged to one Shankreppa

Malshette, who is the farther of plaintiff Nos.2 to 4

and defendant Nos.1 to 3. The plaintiffs have also set

out the family pedigree in the plaint. The suit

properties as mentioned by the plaintiffs are

mentioned herein below;

"SCHEDULE OF THE SUIT PROPERTIES:-: SCHEUDLE "A" LANDED PROPERTY:

1. That, the land bearing Sy, No. 74/1 total measuring 05-Acre, 01-gutnas standing in the name of defendant No. 3 and 5, and situated at village Janti Tq: Bhalki, Dist: Bidar.

2. That, the land bearing Sy, No. 78/2 total measuring 05-Acre, 07-gutnas standing in the name of defendant No. 2 and 4, and situated at village Janti Tq: Bhalki, Dist: Bidar.

3. That, the land bearing Sy, No. 171/ total measuring 04-Acre, 00-gutnas standing in the name of defendant No. 1, and situated at village Dhannura (H), Tq: Bhalki, Dist: Bidar.

4. That, the land bearing Sy, No. 212/2 total measuring 01-Acre, 03-gutnas situated at village Janti Tq: Bhalki, Dist: Bidar.

5. That, the land bearing Sy, No. 11/ total measuring 01-Acre, 28-gutnas and situated at village Janti Tq: Bhalki, Dist: Bidar.

:SCHEDULE "B" HOUSE PROPERTY: That, the house bearing its G P number admeasuring East-West and North South Feet, situated at Janti, tq: Bhalki."

13. To prove the averments made in the plaint,

plaintiff No.4 examined herself as PW.1 and marked

10 documents as Exs.P1 to P10. The details of exhibits

marked by the plaintiffs are summarized herein

below;

    Exhibits                  Details
    P1         ROR-for the year 2011-12- property

bearing Sy.No.74/1-standing in the name of Vishwanath S/o: Late Shankreppa Malshette (D3) P2 ROR for the year 2011-12 - property bearing Sy.No.78/2 - standing in the name of Vaijinath S/o: Late Shankreppa Malshette (D2) P3 Registered Sale Deed dated 04.05.2004 executed by Vishwanath in favour of Subhash (D5) P4 Mutation extract MR No.59 - 2003/04 bearing Sy.No.74/1 showing the transaction dated 27.02.2004 between Vishwanath (D3) and Subhash (D5) P5 ROR for the year 2013-14 - property bearing Sy.No.74/1 standing in the name of Vishwanath (D3) P6 ROR for the year 2013-14 - property bearing Sy.No.78/2 standing in the name of Vaijinath (D2) P7 ROR of the property bearing Sy.No.78/2 and the other details are blank P8 ROR for the year 2013-14 - property

bearing Sy.No.74/7 standing in the name of Saroja P9 Mutation extract bearing Sy.No.74/1 showing the Subhash and Saroja P10 Khata No.658 showing the name in the properties bearing Sy.Nos.50/1 and 74/1 as Saroja

14. It is clear from the exhibits marked on

behalf of the plaintiffs that documents in respect of all

the suit properties have not been produced. Further

the said exhibits which are marked as 'P' series merely

show the name of the defendants and various

alienations made in respect of some of the suit

properties.

15. In the plaint, after stating regarding the

relationship between the parties, it is averred that the

suit schedule A and B properties are the ancestral

joint family properties of plaintiffs and defendants 1 to

3 and that there was no partition of the said

properties. There is no averment in the plaint

regarding the mode of acquisition of the plaint

schedule properties or as to how the suit properties

constitute joint family properties. None of the

documents produced by the plaintiffs demonstrate the

averments made in the plaint with regard to the suit

properties being joint family properties having

originally belonged to Shankreppa Malshette.

16. Although there is a presumption in law that

Hindu family is joint, there is no presumption that any

property held by any member of the family is joint

and the person asserting the same is required to plead

and prove that the property as a joint family property.

In the case of Mudigowda Gowdappa Sunidi v.

Ramchandra Revgowda Sanidi1, the Hon'ble

Supreme Court has observed as under:

"The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property

AIR 1969 SC 1076

held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. .. "

17. PW.1 in her evidence has merely re-

iterated the plaint averments. In her cross-

examination she states that the properties are the

own properties of her father and subsequently she

further states that they are the properties of her

father's ancestors. However, there is no document

produced by the plaintiff demonstrating that the suit

properties belonged to the ancestors of the father of

the plaintiff. PW.1 has denied the alienations made by

the defendants. Hence, it is clear that the plaintiffs

have not produced any material to prove the plaint

averments.

18. The defendants have produced and marked

Exs.D1 to D6, the details of which are summarized

below;

18.1 Ex.D1 is the Sale Deed dated

20.5.1974 which demonstrates that Shankerappa s/o

Sangappa Suttar has sold an extent 1 acre 5 guntas of

land in Sy.No.104/1/58 in Neelgi village, Bhalki Taluk,

Bidar District in favour of Shri Shankerappa s/o

Gundappa Malshettee.

18.2 Exs.D2, D3 and D4 pertain to

purchase of an extent of 3 acres 34 guntas of land in

Sy.No.289 of Dhanura village, Bhalki Taluk, vide

auction by Shankerappa s/o Gundappa Malshettee.

18.3 Ex.D5 is the record of rights for the

year 1998-99 of land for bearing No.11/3 measuring 1

acre 28 guntas and discloses the name of Mallikarjuna

s/o Shankrappa (defendant No.1 and Eramma w/o of

Shankerappa Malshettee).

18.4 Ex.D6 is the record of rights for the

year 1978-77 in respect of land bearing Sy.No.58/E

measuring 1 acre 5 guntas and it is forthcoming that

the name of Shankerappa and his wife have been

rounded off and the name of one Shankrappa s/o

Madavrao has been mutated in the year 1980-81.

19. It is clear from the aforementioned that the

defendants have placed on record sufficient material

to demonstrate the alienations made. However, not

all the documents pertain to the suit properties.

20. The Trial Court upon appreciation of the

oral and documentary evidence available on record

has recorded the following findings;

(a) The plaintiffs have not pleaded that they are the

co-parceners within the purview of amended

provisions of Hindu Law.

(b) The plaintiffs have failed to show that they are

qualified co-parceners to claim share in the suit

properties.

(c) It cannot be held that the suit properties are the

joint family properties of the plaintiffs and

defendant Nos.1 to 3 in the joint possession and

enjoyment.

(d) There is no evidence on record with regard to

the joint possession and joint income.

(e) The Sale Deed of defendant No.5 is of the year

2004 itself.

(f) Some of the non suit lands have also been dealt

with by the defendants individually since from

the year 1980.

21. Recording the aforementioned findings, the

Trial Court also came to the conclusion that the suit is

not within the limitation.

22. The contention of the Appellants/Plaintiffs

that the Defendants having failed to prove oral

partition as pleaded by them, the suit of the Plaintiffs

is required to be decreed is liable to be rejected,

inasmuch as, the Plaintiffs have failed in discharging

the burden cast on them in demonstrating that the

plaint schedule properties are joint family properties

and that they are entitled to a share as co-parceners.

In the absence of the Plaintiffs discharging the said

initial burden itself, the relief claimed by them is not

liable to be granted.

23. It is clear from the aforementioned that the

plaintiffs have miserably failed in demonstrating that

the suit properties are the joint family properties and

that they are entitled for a share in the same. The

Trial Court, after appreciating all the material available

on record including noticing the various alienations

made in respect of the properties of Shankerappa s/o

Gundappa Malshettee i.e., father of plaintiffs No.2 to 4

and defendant Nos.1 to 3, has recorded categorical

findings as noticed above and dismissed the suit filed

by the plaintiffs. No ground is made out by the

appellants/plaintiffs to demonstrate that the said

findings are erroneous and liable to be interfered with.

24. Upon a re-appreciation of the entire

material available on record, no ground is made out

by the appellants in the present appeal to arrive at a

conclusion different from what has been arrived at by

the Trial Court. Hence, the questions framed for

consideration are answered in the negative, against

the plaintiffs.

25. In view of the aforementioned, I proceed to

pass the following;

ORDER

(a) The appeal is dismissed.

(b) The judgment and decree dated 28.11.2014 passed in O.S.No.21/2012 by

the Senior Civil Judge & JMFC, Bhalki is affirmed.

No costs.

SD/-

JUDGE

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