Karnataka High Court
Smt Satyamma W/O Late Nagappa ... vs Smt Devamma W/O Yallappa ... on 20 November, 2023
Bench: K.S.Hemalekha
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RSA No. 100885 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.100885 OF 2023 (PAR/POS)
BETWEEN:
1. SMT. SATYAMMA
W/O. LATE NAGAPPA TALWAR,
AGE. 61 YEARS,
OCC. AGRICULTURE,
R/O. KURUBAR STREET,
WARD NO.16, JAWAHAR ROAD,
KOPPAL 583231, TAL. KOPPAL,
DIST. KOPPAL.
2. SATEESH
S/O. LATE NAGAPPA TALWAR,
AGE. 38 YEARS, OCC. EMPLOYEE,
R/O. KURUBAR STREET, WARD NO.16,
JAWAHAR ROAD,
KOPPAL-583231,
TAL. KOPPAL, DIST. KOPPAL.
Digitally 3. SHIVU S/O. LATE NAGAPPA TALWAR,
signed by
VISHAL AGE. 38 YEARS, OCC. EMPLOYEE,
VISHAL NINGAPPA R/O. KURUBAR STREET, WARD NO.16,
NINGAPPA PATTIHAL
PATTIHAL Date: JAWAHAR ROAD, KOPPAL-583231,
2023.11.23 TAL. KOPPAL, DIST. KOPPAL.
10:39:03
+0530
...APPELLANTS
(BY SRI AVINASH BANAKAR, ADVOCATE)
AND:
1. SMT. DEVAMMA
W/O. YALLAPPA BOCHANAHALLI,
AGE. 61 YEARS, OCC. AGRICULTURE,
R/O. B HOSALI-583234,
TAL/DIST. KOPPAL.
2. SMT. RATHNAMMA
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RSA No. 100885 of 2023
W/O. HANUMAGOUDA POLICEPATIL,
AGE. 56 YEARS, OCC. AGRICULTURE,
R/O. BUDASHETTANAL-583231,
TAL/DIST. KOPPAL.
3. SMT. SULOCHANA
W/O. ERANAGOUDA POLICEPATIL,
AGE. 51 YEARS,
OCC. ANGANAWADI TEACHER,
R/O. BUDASHETTANAL-583231,
TAL/DIST. KOPPAL.
4. RAMANNA
S/O. HANUMAPPA TALWAR,
AGE. 54 YEARS, OCC. EMPLOYEE,
R/O. KURUBAR STREET, WARD NO. 16,
JAWAHAR ROAD, KOPPAL-583231,
TQ/DIST. KOPPAL.
...RESPONDENTS
(BY SRI RAJASHEKAR B. HALLI, ADVOCATE FOR C/R1 - C/R3)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE 1908, AGAINST THE
JUDGMENT AND DECREE DATED 17.07.2023 PASSED IN
R.A.NO.25/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
CHIEF JUDICIAL MAGISTRATE, KOPPAL, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.02.2020,
PASSED IN O.S. NO.92/2017 ON THE FILE OF THE CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, KOPPAL, DECREEING THE SUIT
FILED FOR PARTITION AND SEPARATE POSSESSION BY METES AND
BOUNDS.
THIS REGULAR SECOND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 100885 of 2023
JUDGMENT
The present second appeal by the unsuccessful
defendant Nos.2 to 4 assailing the concurrent finding of facts
the Courts below, whereby, the suit seeking for partition and
separate possession came to be decreed holding that the
plaintiffs and defendant No.1 are entitled for 1/5th share each
and defendant Nos.2 to 4 are together entitled for 1/5th
share.
2. The parties herein are referred to as per their
ranking before the Trial Court, for the sake of convenience.
3. Heard Sri Avinash Banakar, learned counsel
appearing for the appellants and Sri Rajashekar B.Halli,
learned counsel appearing for the respondents and perused
the judgment and decree of the Courts below.
4. Family pedigree is as under:
Hanumappa Kenchappa Talawar
= Ningamma
Nagappa Ramappa Shivappa Devamma Rathnamma Sulochana
(expired) (D.1) (Expired) (P.1) (P.2) (P.3)
= Satyamma
(D.2)
Sateesh Shivu
(D.3) (D.4)
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5. The suit seeking for partition and separate
possession claiming 3/5th share in the suit schedule property.
It is the contention of the plaintiffs that, the plaintiffs and
defendant No.1 and father of defendant Nos.3 and 4 namely
one Nagappa are the brothers and sisters born to one
Hanumappa Kenchappa Talawar. It is the contention of the
plaintiffs that the suit schedule property is the joint family
ancestral property of the plaintiffs and defendants. It is
further averred that the original propositus namely
Hanumappa purchased the land measuring 4 acres 5 guntas
in Sy.No.129/A in the name of his son Shivappa, when
Shivappa was minor under a registered sale deed dated
05.03.1990. Shivappa was in possession and enjoyment of
the land to the extent of 4 acres 5 guntas. It is the
contention of the plaintiffs that on death of said Shivappa,
who died issueless, the plaintiffs and defendants being the
clause-II legal heirs are entitled for share in the suit
schedule property. However, it is contended that the name of
Nagappa, husband of defendant No.2 and father of
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defendant Nos.3 and 4 was entered in the revenue record
pertaining to the suit item behind the back of the plaintiffs.
6. Pursuant to the suit summons issued by the Trial
Court, defendant No.1 appeared and filed his written
statement admitting the claim made out by the plaintiffs.
7. Defendant No.2 to 4 filed their written statement
inter alia contending that the suit properties previously stood
in the name of Shivappa and during his lifetime has given up
his right in respect of suit item No.A in favour of Nagappa,
who is the husband of defendant No.2 and father of
defendant Nos.3 and 4 and the deceased Nagappa was the
absolute owner of the suit item No.A and on death of
Nagappa, defendant Nos.2 to 4 being the legal heirs have
succeeded to the suit item No.A as absolute owners.
8. The Trial Court on basis of the pleadings, framed
the following issues:
1) Whether plaintiffs prove that, suit schedule
properties are the joint family properties of
plaintiffs and defendants?
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2) Whether the plaintiffs are entitled for 3/5th
share in the suit schedule properties?
3) Whether the defendants No.2 to 4 prove
that suit item No.'A' property was
relinquished by Shivappa in favour of
Nagappa and they have succeeded to the
same after his demise?
9. In order to substantiate their claim, plaintiff No.1
herself examined as PW.1 and one witness as PW.2 and got
marked documents at Exs.P.1 to P.25. On the other hand
defendant No.2 examined herself as DW.1 and got marked
documents at Exs.D.1 to D.4.
10. The Trial Court on basis of the pleadings, oral and
documentary evidence has held that;
i) The plaintiffs have proved that the suit schedule
properties are the ancestral joint family properties of
plaintiffs and defendants.
ii) Defendant Nos.2 to 4 failed to prove that the suit
item No.A was relinquished by Shivappa in favour of
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Nagappa and defendant Nos.2 to 4 have succeeded the
same.
By the judgment and decree the Trial Court held that
the plaintiffs and defendant No.1 are entitled for 1/5th share
each and defendant Nos.2 to 4 are together entitled for 1/5th
share in the suit schedule properties.
11. Aggrieved by the decreetal of the suit, the
defendant Nos.2 to 4 preferred appeal before the First
Appellate Court. The First Appellate Court while
re-appreciating the entire oral and documentary evidence
has concurred with the judgment and decree of the Trial
Court.
12. Aggrieved by the concurrent findings of the
Courts below, the present second appeal by defendant Nos.2
to 4.
13. The relationship between the parties is not in
dispute. It is the contention of the plaintiffs that the suit
properties are the ancestral joint family properties of the
plaintiff and defendants. On the other hand defendant Nos.2
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to 4 contended that the suit schedule properties were the
self acquired properties of the deceased Shivappa and the
said Shivappa has relinquished his right in respect of suit
item No.A in favour of deceased Nagappa.
14. The material on record would show that the
purchase of the suit property is in the name of Shivappa was
during his minority. No material was placed before the Court
to show the independent source of income of deceased
Shivappa to purchase the suit schedule properties. The Trial
Court held that, in the absence of any material, Hanumappa,
the original propositus has purchased the suit properties in
the name of Shivappa, out of the joint family funds and in
the said context, the Trial Court held that Shivappa had no
exclusive right to relinquish suit schedule item No.A in favour
of Nagappa, the husband of defendant No.2 and father of
defendant Nos.3 and 4. The relinquishment of right as
alleged by the defendant Nos.2 to 4 is not supported by any
documents. Reliance is placed on Ex.D.1, the affidavit filed
by defendant No.1 before Tahasildar, Koppal to contend
about oral partition and suit item No.A has been allotted to
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the share of Nagappa, the relevant fact is that it is a varadi
given to enter the name of Nagappa. Another document is
Ex.D.2, agreement stating that Shivappa is the owner of the
suit property and is handing over possession to Nagappa by
this document. Exs.D.3 and D.4 are the revenue records
pertaining to the suit property showing the name of Nagappa
and Shivappa in respect of the suit schedule property. The
revenue records invariably are not the documents of title.
15. The relinquishment as contended by defendant
Nos.2 to 4 was not evidenced by any material and it was
only on basis of varadi. The revenue entries without there
being any registered document would not create any right in
favour of defendant Nos.2 to 4. The defendants have failed
to establish their right over the suit item No.A by placing any
substantial and reliable evidence.
16. The Trial Court has rightly considered the oral and
documentary evidence and arrived at conclusion that the
plaintiffs are entitled for equal share in the suit schedule
property. In the appeal preferred before the First Appellate
Court, the First Appellate Court independently re-assessed
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the entire oral and documentary evidence and held that the
contention set up by defendant Nos.2 to 4 that Shivappa was
the absolute owner of the suit property was not
substantiated by any evidence, as the suit property was
purchased during minority of Shivappa and in the absence of
any individual income of Shivappa, the property was
purchased out of the joint family funds. The manner in
which, the Courts below have assessed the entire oral and
documentary evidence, this Court is of the considered view
that the concurrent findings of the Courts below does not call
for any interference. It is also settled proposition of law that
the daughters are to be treated as coparceners and they are
entitled for equal share in the coparcenary property as per
the amended Section 6 of the Hindu Succession (Amended)
Act, 2005. The daughters being treated as coparceners is no
more res integra, in view of the judgment of the Apex Court
in the case of Vineeta Sharma Vs. Rakesh Sharma and
others1 and at paragraph No.129, the Apex Court held as
under:
ILR 2020 KAR 4370
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"129. Resultantly, we answer the
reference as under:
(i) The provisions contained in
substituted Section 6 of the Hindu Succession
Act, 1956 confer status of coparcener on the
daughter born before or after the amendment
in the same manner as son with same rights
and liabilities.
(ii) The rights can be claimed by the
daughter born earlier with effect from
9-9-2005 with savings as provided in Section
6(1) as to the disposition or alienation,
partition or testamentary disposition which had
taken place before the 20th day of December,
2004.
(iii) Since the right in coparcenary is by
birth, it is not necessary that father coparcener
should be living as on 9-9-2005.
(iv) The statutory fiction of partition
created by the proviso to Section 6 of the
Hindu Succession Act, 1956 as originally
enacted did not bring about the actual partition
or disruption of coparcenary. The fiction was
only for the purpose of ascertaining share of
deceased coparcener when he was survived by
a female heir, of Class I as specified in the
Schedule to the 1956 Act or male relative of
such female. The provisions of the substituted
Section 6 are required to be given full effect.
Notwithstanding that a preliminary decree has
been passed, the daughters are to be given
share in coparcenary equal to that of a son in
pending proceedings for final decree or in an
appeal.
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(v) In view of the rigour of provisions of
the Explanation to Section 6(5) of the 1956
Act, a plea of oral partition cannot be accepted
as the statutory recognized mode of partition
effected by a deed of partition duly registered
under the provisions of the Registration Act,
1908 or effected by a decree of a court.
However, in exceptional cases where plea of
oral partition is supported by public documents
and partition is finally evinced in the same
manner as if it had been affected (sic effected)
by a decree of a court, it may be accepted. A
plea of partition based on oral evidence alone
cannot be accepted and to be rejected
outrightly."
17. In the said circumstances, this Court is of the
considered view that, no substantial question of law arises
for consideration in the second appeal to be dealt with under
Section 100 CPC. In the result, this Court pass the following:
ORDER
(i) The regular second appeal is hereby
dismissed.
(ii) The judgment and decree of the Courts below
stands confirmed.
Sd/-
JUDGE
EM, CT: UMD
