Karnataka High Court
Shri.Sanjay S/O. Late Shantinath ... vs Smt.Pushpavati W/O. Late ... on 2 November, 2023
Bench: K.S.Hemalekha
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RSA No. 101611 of 2022
C/W RSA No. 100282 of 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.101611 OF 2022 (PAR/POS)
C/W
REGULAR SECOND APPEAL NO. 100282 OF 2018 (DEC/INJ)
IN R.S.A NO. 101611 OF 2022
BETWEEN:
SHRI. SANJAY S/O SHANTINATH MALLAPPANAVAR,
AGE. 54 YEARS, OCC.BUSINESS
R/O. MAHAVEER ROAD, ALANAVAR,
TQ. DHARWAD, DIST. DHARWAD.
...APPELLANT
(BY SRI. S. R. HEDGE, ADVOCATE)
AND:
Digitally
signed by
VISHAL 1. SMT. PUSHSPAVATI
VISHAL NINGAPPA
NINGAPPA PATTIHAL W/O SHANTINATH MALLAPPANAVAR
PATTIHAL Date:
2023.11.07 AGE. 79 YEARS, OCC. HOUSEHOLD WORK
11:29:50
+0530 R/O. MAHAVEER ROAD, ALNAVAR
TQ. DHARWAD, DIST. DHARWAD.
2. SMT. GEETA W/O MAHAVEER SHETE
AGE. 60 YEARS, OCC. HOUSEHOLD WORK
R/O. SOUTH D-6, ROYAL GREEN FIELD
NAYAL PARK, BEHIND COLLECTOR
OFFICE KOLHAPUR-416003.
3. SMT. MEGHA W/O RAJU PATRAVALI,
AGE. 59 YEARS, OCC. HOUSEHOLD WORK
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R/O. SANMATI NAGAR, 2ND MAIN, KELGERI ROAD,
NEAR DASANKOPPA CROSS, DHARWAD-580008.
4. TUSHAR S/O SHANTINATH MALLAPPANAVR
AGE.56 YEARS, OCC. BUSINESS
R/O. MAHAVEER ROAD, ALNAVAR
DHARWAD.
5. THE MANAGER
ALNAVAR URBAN CO-OPERATIVE BANK LTD.,
R/O. MAHAVEER ROAD, ALNAVAR
DHARWAD.
...RESPONDENTS
(BY SRI. S. L. MATTI, ADVOCATE FOR RESP. NO. 5;
SMT. ARCHANA A. MAGADUM, ADVOCATE FOR R1 TO R4)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
30.07.2022 PASSED IN R.A.NO.14/2022 ON THE FILE OF IV
ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, DHARWAD, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 03.03.2022
PASSED IN O.S. NO.169/2018 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, AT DHARWAD,
DECREEING THE SUIT FILED FOR SUIT FOR PARTITION AND
SEPARATE POSSESSION.
IN R.S.A NO. 100282 OF 2018
BETWEEN:
1. SHRI. SANJAY S/O SHANTINATH MALLAPPANAVAR,
AGE. 49 YEARS, OCC.BUSINESS
R/O. MAHAVEER ROAD, ALANAVAR,
TQ. DHARWAD, DIST. DHARWAD.
2. SMT. SUNITA W/O. SANJAY MALLAPPANAVAR,
AGE. 44 YEARS, OCC.HOUSEHOLD WORK,
R/O. MAHAVEER ROAD, ALANAVAR,
TQ. DHARWAD, DIST. DHARWAD.
...APPELLANTS
(BY SRI. S. R. HEDGE, ADVOCATE)
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AND:
1. SMT. PUSHSPAVATI
W/O LATE SHANTINATH MALLAPPANAVAR
AGE. 49 YEARS, OCC. HOUSEHOLD WORK,
R/O. MAHAVEER ROAD, ALNAVAR
TQ. & DIST. DHARWAD.
2. THE MANAGER,
ALNAVAR URBAN CO-OPERATIVE BANK LTD.,
R/O. MAHAVEER ROAD, ALNAVAR
TQ AND DIST: DHARWAD.
...RESPONDENTS
(BY SMT. ARCHANA A. MAGADUM, ADVOCATE FOR R1;
SRI. S. L. MATTI, ADVOCATE FOR R2)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
07.11.2022 PASSED IN R.A.NO.63/2016 ON THE FILE OF THE
PRINCIPAL/I ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF
JUDICIAL MAGISTRATE, DHARWAD, PARTLY ALLOWING THE APPEAL
AND PARTLY SETTING ASIDE THE JUDGMENT AND DECREE DATED
30.04.2016, PASSED IN O.S. NO.166/2011 ON THE FILE OF THE II
ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST
CLASS, DHARWAD, PARTLY DECREEING THE SUIT FILED FOR
DECLARATION AND MANDATORY INJUNCTION.
THESE REGULAR SECOND APPEALS, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
RSA.No.100282/2018 by defendant Nos.1 & 3 arising
out of the concurrent findings of facts in RA.No.63/2016
dated 07.11.2017 on the file of the Principal/I Additional
Senior Civil Judge & CJM, Dharwad, confirming the
judgment and decree dated 30.04.2016 in
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OS.No.166/2011 on the file of the II Addl. Civil Judge &
JMFC, Dharwad, whereby, the suit for declaration and
mandatory injunction was decreed by the Courts below.
2. RSA.No.101611/2022 preferred by defendant
No.1 assailing the judgment and decree dated 30.07.2022
passed in RA.No.14/2022 on the file of the IV Addl. Senior
Civil Judge & JMFC, Dharwad, confirming the judgment
and decree dated 03.03.2022 in OS.No.169/2018 on the
file of the Principal Civil Judge & JMFC, Dharwad, whereby,
the suit for partition and separate possession seeking 1/5th
share in the items kept in bank locker No.14, was decreed
by the Courts below.
3. Both the appeals are taken up together since
common question of facts are involved.
4. O.S.No.166/2011 was filed by Pushpawati,
mother of Sanjay and mother-in-law of Sunita for
declaration that the suit bank locker belongs to the family
of the plaintiff.
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5. O.S.No.169/2018 was filed by Pushpavathi and
her two daughters, namely, Geeta and Megha, against her
son, namely, Sanjay seeking for partition and separate
possession and to allot 1/5th share each in the valuables,
which are 27 gold and silver articles kept in bank locker
No.14 with defendant No.2-Bank, as per the
Commissioner's Report in O.S.No.166/2011.
6. Pursuant to the notice issued in both the suits,
defendant No.1-Sanjay, who is common defendant in both
the suits, filed written statement, inter alia, contending
that the bank locker exclusively belongs to him and the
locker was obtained in his father's name for storing his
wife's valuables after their marriage on 07.06.1995.
Defendant No.1 claims that the plaintiff has a separate
locker for family ornaments, which they have not claimed
and defendant No.1 is staying separately from the plaintiff
and has paid rent for the locker. Defendant No.1 denies
the share of the plaintiff in respect of the valuables,
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specifically the gold and silver articles owned by his wife,
which are in the bank locker.
7. Defendant No.3 has also on similar terms as
that of defendant No.1 filed the written statement.
8. The trial Court in O.S.No.166/2011 where the
plaintiff sought for declaration that the bank locker is the
joint family property and framed the following issues:
1. "Whether the defendant No.3 proves that the
bank locker bearing No.14 at defendant No.2
Bank belongs to her and plaintiff has no legal
right of whatsoever to the said locker?
2. Whether plaintiff is entitled for the relief of
mandatory injunction for a direction to
defendant No.1 and 2 to open the locker in
presence of plaintiff and all her children?
3. What decree or order?
Additional issues
1. Whether defendant No.3 proves that the bank
locker bearing No.14 at defendant No.2 Bank
belongs to her and plaintiff has no legal right
of whatsoever to the said locker?
2. What decree or order?"
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9. The trial Court in O.S.No.169/2018 filed seeking
for partition and separate possession framed the following
issues:
1. "Whether the plaintiffs are entitled for 1/5th
share each in the suit items kept in the locker
as per the judgment and decree of
R.A.No.63/2016?
2. What decree or order?"
10. The trial Court in O.S.No.166/2011 declared
that the suit bank locker belongs to the family of the
plaintiff, however, the prayer for mandatory injunction was
denied and liberty was granted to the parties to work out
the remedy with respect to the ornaments in the suit bank
locker by filing appropriate suit for partition. Aggrieved by
which defendant Nos.1 and 3 preferred the appeal before
the First Appellate Court in RA.No.63/2016.
11. The first appellate court, on re-appreciation of
the entire oral and documentary evidence, concurred with
the judgment and decree of the trial court insofar as the
declaration is concerned and the suit of the plaintiff was
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decreed in part, directing defendant No.2 - bank not to
permit either the plaintiff-PW.1 or DW.1 or DW.2 to
operate the schedule property until the legal
representatives of deceased Shantinath obtained a
suitable direction in respect of partitioning 27 items found
in the bank locker. It is also held that defendant No.3
Smt.Sunita W/o Sanjay Mallappanavar to be kept out of
the said partition. Aggrieved by the judgment and decree
of the Courts below in O.S.No.166/2011 and
RA.No.63/2016, the present second appeal in
RSA.No.100282/2018 by defendant Nos.1 and 3.
12. O.S.No.169/2018 seeking partition and
separate possession was decreed by the trial Court holding
that the plaintiffs are entitled for 1/5th share each in 27
items kept in bank locker No.14 with defendant No.2.
Aggrieved by which, RA.No.14/2022 was preferred by
defendant-Sanjay, the judgment and decree granting
partition of 1/5th share was concurred by the first appellate
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Court. Aggrieved by which, RSA.No.101611/2022 by
defendant-Sanjay.
13. RSA No.101611/2022 is preferred by defendant
No.1 assailing the concurrent findings of the Courts below
in granting partition of 1/5th share to the plaintiffs and RSA
No.100282/2018 is preferred by defendant Nos.1 and 3
against the concurrent findings of the Courts below,
holding that bank locker No.14 belongs to the family of the
plaintiffs.
14. Heard Sri S.R.Hegde, learned counsel for the
appellant/s and Smt.Archana A. Magadum, learned
counsel for respondent Nos.1 to 4 and Sri S.L.Matti,
learned counsel for respondent No.5-Bank and perused the
judgment and decree of the Courts below.
15. The facts in both the suits are similar. The
plaintiff in O.S.No.166/2011 and plaintiff No.1 in
O.S.No.169/2018 contended that bank locker No.14
belongs to the family of the plaintiff, including family
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valuables such as gold and silver ornaments, the bank
locker was rented by late Shantinath in the year 1995 and
on his death, his legal heirs namely plaintiff No.1-
Pushpavathi, two daughters and two sons are entitled for
share in the items stored in the bank locker as legal heirs.
16. On the other hand, defendant No.1-Sanjay
contended that the bank locker exclusively belongs to him
and has obtained in his father's name for storing his wife's
valuables after their marriage on 07.06.1995. Defendant
No.1 contends that the bank locker, after the death of the
father, has stood in the name of defendant No.1 since
01.10.2003, making him the lawful owner of the locker.
Since then, defendant No.1 has been using and operating
the locker personally.
17. In order to substantiate their claim, the
plaintiffs relied upon the following key documents:
i) Ex.P.13-Shantinath's locker account opening form;
ii) Ex.P.14-Ledger Extract relating to Shantinath's
locker;
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iii) Ex.P.15-Extract of locker operation register;
iv) Ex.P.16-Nomination form submitted by
Shantinath;
v) Exs.P.17 & 18- Documents regarding the transfer
of the locker to defendant No.1 after the death of
Shantinath and death certificate of Shantinath
18. The plaintiff specifically states that her husband
Shantinath rented the bank locker to store the family
valuables and defendant No.1 her son took the locker key
without her knowledge and attempted to access the
valuables. The material aspect that needs to be considered
is that, the Trial Court in O.S.No.166/2011 appointed the
Court Commissioner to conduct an inventory of the
locker's contents, which revealed silver and gold articles
associated with various names, including relatives of both
the plaintiff and defendant No.1. The material on record,
more particularly the nomination form at Ex.P.16,
discloses that the deceased Shantinath has authorized
defendant No.1 to operate the locker. The locker is
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registered in Shantinath's name and the defendants are
unable to substantiate as to what ornaments are kept in
the bank locker when he tries to contend that the contents
of the locker are of the exclusive ownership of defendant
Nos.1 and 3.
19. It is a settled principle of Hindu Law that there
is a legal presumption that every Hindu family is joint in
food, worship and estate and in the absence of any proof
of division, such a legal presumption continues to operate
in the family. Thus, the burden lies upon the person who,
after admitting the existence of jointness in the family
property, asserts his claim that some property out of the
entire locker of ancestral properties are his self acquired
properties. The burden was on defendant Nos.1 and 3 to
discharge and prove that the ornaments stored in the bank
locker exclusively belonged to them. The written
statement is totally silent as to the valuables stored in the
bank locker. The Trial Court, based on the material placed
before it, has arrived at a conclusion that bank locker
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No.14 belongs to the family of the plaintiff and defendant
No.1 and the Trial Court held that the defendants failed to
establish the exclusive ownership of the locker contents.
The Trial Court does not grant the plaintiff's request for a
mandatory injunction, citing the absence of the partition
claim and the fact that all the family members were not
parties to the suit.
20. In the appeal preferred by defendant No.1, the
First Appellate Court partly set-aside the Trial Court's
decision and decreed the suit of the plaintiff in part,
directing defendant No.2-bank not to permit the plaintiff,
defendant No.1 or defendant No.3 to operate the suit
schedule property until the legal representatives of the
deceased Shantinath obtained a suitable direction for
partitioning of 27 items found in the bank locker. The First
Appellate Court upheld the Trial Court's conclusion that the
bank locker belongs to the family of plaintiff and defendant
No.1. The Trial Court and the First Appellate Court held
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that the bank locker is the family property of the plaintiff
and defendant No.1.
21. The Trial Court in O.S.No.169/2018,
by considering the entire oral and documentary evidence
and placing reliance on the judgment and decree in O.S.
No.166/2011 as well as RA No.63/2011, held that bank
locker No.14 is the joint family property of plaintiffs Nos.1
to 4 and defendant No.1, awarded 1/5th share each of the
27 suit items kept in bank locker No.14 with defendant
No.2. The First Appellate Court while re-appreciating the
entire oral and documentary evidence has concurred with
the judgment and decree passed in O.S.No.169/2018.
22. Both the Courts, in both the suits and in both
the appeals, have concurrently held that the plaintiff is
entitled for declaration that the bank locker is the family
property of the plaintiff and defendant No.1 and plaintiffs
in O.S.No.169/2018 are entitled for 1/5th share each in 27
items kept in bank locker No.14 with defendant No.2. The
entire oral and documentary evidence has been
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appreciated by the Courts below in a proper manner and
the same does not call for any interference.
23. The manner in which the Courts below have
dealt with the entire oral and documentary evidence, this
Court is of the considered view that the concurrent
findings of facts of the Courts below does not call for any
interference to be dealt with under Section 100 CPC and in
the considered opinion of this Court, there arises no
substantial question of law in these appeals and
accordingly, this Court pass the following:
ORDER
(i) The regular second appeals are hereby
dismissed.
(ii) The judgments and decrees of the Courts
below stand confirmed.
(iii) It is needless to observe that the appellants
are at liberty to seek equity in the final decree
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proceedings that would be initiated by the
respondents, if so advised in accordance with law.
(Sd/-)
JUDGE
MBM
