Karnataka High Court
Chandramappa vs Raja Ramanna Naik S/O.Raja Lachmappa ... on 24 November, 2023
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RSA No. 7074 of 2010
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.7074 OF 2010 (PAR/POS)
BETWEEN:
1. CHANDRAMAPPA
S/O SANGAPPA HOSMANI,
AGE: 48 YEARS, OCC: AGRI.,
R/O: KUDLIGI VILLAGE,
TQ: SHAHAPUR, DIST: GULBARGA-585238.
2. NINGAMMA W/O SIDRAMAPPA
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: KUNDERGOUNDA VILLAGE,
TQ: SINDAGI, DIST: BIJAPUR-584202.
3. GANGAMMA W/O SHIVASHARANAPPA
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: KUKNOOR VILLAGE, TQ: JEWARGI,
Digitally signed DIST: GULBARGA-585237
by SHILPA R
TENIHALLI
Location: HIGH 4. GOURAMMA W/O BHIMRAYA
COURT OF
KARNATAKA AGE: 48 YEARS, OCC: AGRICULTURE
R/O: SUMBAD VILLAGE, TQ: JEWARGI,
DIST: GULBARGA-585237.
5. KAMALABAI W/O BASAVANTHRAYA
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: KACHAPUR VILLAGE,
TQ: SHORAPUR,
DIST: GULBARGA-585236.
...APPELLANTS
(BY SRI AJAYKUMAR A. K., ADVOCATE;
V/O. DATED 02.08.2023, APPEAL AGAINST A3 STANDS
ABATED)
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RSA No. 7074 of 2010
AND:
1. RAJA RAMANNA NAIK
S/O RAJA LACHMAPPA NAIK
AGE: MAJOR, OCC: CONTRACTOR
R/O: SHORAPUR TOWN,
DIST GULBARGA-585236.
2. TARABAI W/O RAJA LACHMAPPA NAIK
AGE: MAJOR, OCC: HOUSEWIFE,
R/O: SHORAPUR TOWN,
DIST: GULBARGA-585236
3. SHARNAMMA W/O SHANTGOUDA HOSMANI
AGE: 68 YEARS, OCC: HOUSEWIFE,
R/O KUDLIGI VILLAGE, TQ-SHORAPUR
NOW R/O: VASTARI VILLAGE,
TQ: JEWARGI, DIST: GULBARGA-585237
4. NANAGOWDA S/O SANGAPPA HOSMANI
AGE: MAJOR, OCC: AGRICULTURE,
R/O: KUDLIGI VILLAGE,
TQ: SHORAPUR,
DIST: GULBARGA-585236.
5. DEVIKAMMA W/O.NANAGOWDA HOSMANI
AGE: MAJOR, OCC: AGRICULTURE
R/O: KUDLIGI VILLAGE, TQ: SHORAPUR
DIST: GULBARGA-585236.
6. MALLAGOWDA S/O NANAGOWDA HOSMANI
AGE: MAJOR, OCC: HOUSEWIFE,
R/O KUDLIGI VILLAGE, TQ: SHORAPUR
DIST: GULBARGA-585236.
7. SANGANGOWDA S/O NANAGOWDA HOSMANI
AGE: MAJOR, OCC: HOUSEWIFE,
R/O: KUDLIGI VILLAGE, TQ: SHORAPUR
DIST: GULBARGA-585236.
...RESPONDENTS
(BY SRI V. K. NAIK AND SRI JAYANANDAYYA, ADVOCATES
FOR R1 & R2; R3 TO R7 SERVED)
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RSA No. 7074 of 2010
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO ALLOW
THE APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE
DATED 06.08.2008 PASSED IN O.S. NO.62/2006 BY THE
LEARNED CIVIL JDUGE (SR.DN.) SHORAPUR, AND
CONFIRMING THE SAME BY THE APPELLATE COURT IN
REGULAR APPEAL NO.22/2008 DATED:26.11.2009 PASSED BY
THE PRESIDING OFFICER, FAST TRACK COURT-I AT YADGIR.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff and defendant Nos.8 to 11 in
O.S.No.62/2006 on the file of the learned Civil Judge (Sr.Dn.),
Shorapur (hereinafter referred to as 'the Trial Court' for
brevity), are impugning the judgment and decree dated
06.08.2008 dismissing the suit for partition and separate
possession, which was confirmed in R.A.No.22/2008 on the file
of the learned Presiding Officer, Fast Track Court-I at Yadgiri,
(hereinafter referred to as 'the First Appellate Court' for
brevity), by dismissing the appeal.
2. For the sake of convenience, the parties shall be
referred to as per their rank and status before the Trial Court.
3. Brief facts of the case are that the plaintiff has filed
the suit O.S.No.165/2001, which was re-numbered as
O.S.No.62/2006 before the Trial Court, against the defendants
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seeking partition and separate possession of his 1/3rd share in
the suit properties by metes and bounds. The schedule
appended to the plaint describes the landed properties bearing
Sy.No.63/Aa, measuring 16 acres, Sy.No.102/Aa1, measuring
5.38 acres, Sy.No.102/Aa2, measuring 8 acres, Sy.No.49/2,
measuring 8.11 acres, Sy.No.49/2, measuring 8.11 acres and
Sy.No.102/A1, measuring 8 acres to the extent of 3 acres
towards west. All the properties are situated at Kudalgi village,
Shorapur (hereinafter referred to as 'the schedule properties'
for brevity).
4. It is the specific contention of the plaintiff that his
father Sangappa is the propositior and the schedule properties
are the family properties. Sangappa had three sons namely,
Shantgouda, Chandramappa - plaintiff and Nanagouda -
defendant No.2. Shantgouda died leaving behind him his son
Mallanna, who also died leaving behind his wife Sharnamma -
defendant No.1. Therefore, it is the contention of the plaintiff
that he is entitled for 1/3rd share in the schedule properties.
5. It is contended that defendant No.1 without consent
of other members of the family and in collusion with the Village
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Accountant, got mutated her name in respect of item Nos.1 to
3 of the schedule properties. When this fact was come to the
knowledge of the plaintiff, he approached defendant No.1 and
also the Village Accountant, but, they were not ready and
willing to effect the partition. Therefore, the plaintiff filed the
suit seeking partition of his 1/3rd share in the schedule
properties.
6. During the pendency of the suit, defendant Nos.6 to
11 were came to be impleaded. It is stated that defendant
No.1 sold item Nos.1 to 3 of the schedule properties in favour
of defendant Nos.6 and 7 and defendant Nos.8 to 11, who are
the daughters of Sangappa are also entitled for their share in
the family properties.
7. Defendant No.1 filed her written statement denying
the contentions taken by the plaintiff. The relationship between
the parties is admitted, but, it is denied that there existed a
Hindu joint family and the schedule properties are the joint
family properties. It is denied that the husband of defendant
No.1 was the Kartha of the family or that they have managed
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to get mutation in their names in collusion with the Village
Accountant.
8. Defendant No.1 contended that her husband lived
separately and item Nos.1 to 3 of the schedule properties
exclusively belong to her husband and after his death, she is
the absolute owner in possession of the same. Therefore, claim
of the plaintiff in respect of said properties are denied. It is
also contended that item Nos.1 to 3 are already sold in favour
of defendant Nos.6 and 7 under the registered sale deed dated
18.02.2002 and on that count also, it is contended that the
plaintiff is not entitled for any share in the schedule properties.
9. Defendant No.1 further contended that during the
lifetime of Sangappa, he effected partition amongst his sons
during 1974 and separate properties were allotted to the share
of plaintiff, defendant No.2 and husband of defendant No.1.
Accordingly, mutation was effected in their respective names
and thus, all the three sons are in possession and enjoyment of
their shares. The plaintiff was allotted Survey No.102,
measuring 16 acres, which was mutated as Survey No.102/A.
After partition, the plaintiff has sold 5 acres of land in favour
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one Rudragouda under the registered sale deed dated
10.04.2000. He transferred an area measuring 4 acres in
favour his wife and 4 acres to his brother Nanagouda. It is also
contended that in the similar partition, Survey No.49,
measuring 18 acres in Kudalgi village was allotted to the share
of defendant No.2. The revenue records stood in his name.
Thus, it is contended that defendant Nos.2 to 5 were not having
any right, title or interest over item Nos.1 to 3, which are
exclusive properties of defendant No.1.
10. Defendant Nos.6 and 7 have filed their written
statement after impleading and they have taken similar
contentions as taken by defendant No.1.
11. Defendant Nos.8 to 11 being the daughters of
Sangappa filed their written statement admitting that schedule
properties are the joint family properties and claimed their 1/7th
share each in the same.
12. On the basis of these pleadings, the Trial Court
framed the following issues for consideration:
1) Whether plaintiff proves that, himself and defendants
1 to 5, constitute joint family and he is the member
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of joint family, and suit schedule properties are liable
for partition and he is entitled for 1/3rd share ?
2) Whether the defendant No.1 proves that, there was
already partition took place in the family during the
years 1974, and properties were divided, and names
of respective shares are entered in ROR extracts?
3) Whether the defendant No.1 proves that, as she is
owner and possessor of land sy. No. 63/a, 102/Aa-1,
and 102/Aa-2 sold these lands to D.6 & 7 and sale is
binding on the plaintiff?
4) Whether defendants 6 & 7 prove that, plaintiff's
cause of action is false and imaginary?
5) Whether the defendants No.6 and 7 prove that, they
are bonafide purchasers of land, from deft No.1 for
value?
6) Whether plaintiff is entitled for the relief?
7) What order or decree?
13. The plaintiff got examined PWs.1 and 2 and got
marked Exs.P1 to P9 in support of his contentions. Defendant
No.6 got examined himself as DW.1 and got marked Exs.D1 to
46, in support of his defence. The Trial Court after taking into
consideration all these materials on record, answered issue
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Nos.1 and 6 in the negative and issue Nos.2 to 5 in the
affirmative and accordingly, the suit of the plaintiff was came to
be dismissed.
14. Being aggrieved by the same, the plaintiff preferred
R.A.No.22/2008. The First Appellate Court on re-appreciation of
the materials on record dismissed the appeal by confirming the
impugned judgment and decree passed by the Trial Court.
Being aggrieved by the same, the plaintiff and defendant Nos.8
to 11 are before this Court.
15. Heard Sri Ajaykumar A.K., learned counsel for the
appellants/plaintiff and defendant Nos.8 to 11 and Sri V.K.Naik,
learned counsel for respondent Nos.1 and 2/defendant Nos.1
and 2. Perused the materials on record including the Trial
Court and First Appellate Court records.
16. Learned counsel for the appellants contended that
the relationship between the parties is not in dispute. It is also
not in dispute that the schedule properties are the joint family
properties, which were owned and possessed by the propositor
Sangappa. The only defence taken by defendant No.1 is that
there was already a partition amongst the family members,
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but, no partition deed is produced before the Court to
substantiate the same. Defendant No.1 has sold item Nos.1 to
3 of the schedule properties in favour of defendant Nos.6 and 7
during the pendency of the suit. Even though separate written
statements were filed by defendant Nos.6 and 7, same defence
is taken as that of defendant No.1. Defendant No.1 never
stepped into the witness box to speak about her contention. It
is only defendant No.6, who is examined as DW.1. Since
defendant Nos.6 and 7 are the purchasers during the pendency
of the suit, their claim is hit by the principles of pendente lite.
17. Learned counsel for the appellants submitted that
even though it is submitted that the schedule properties are the
joint family properties held by propositor Sangappa, he was not
given any share in any of the schedule properties. The plaintiff
was minor during 1974, when the partition is said to have
taken place in the family. Therefore, even though there was
such partition, the same is not binding on the plaintiff and
defendant Nos.8 to 11. The partition as contended by
defendant No.1 during 1974 was inequitable partition and
therefore, the same cannot be accepted.
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18. Learned counsel further submitted that admittedly
defendant Nos.8 to 11 are the daughters of Sangappa and
therefore, as per Section 6 of the Hindu Succession
Amendment Act, they are also equally entitled for their share.
Under such circumstances, he prays for allowing the appeal in
the interest of justice.
19. Learned counsel for the respondents opposing the
appeal submitted that even though the relationship between
the parties is admitted, Ex.D1 is the mutation entry, which was
certified during the year 1974. According to which, on the
basis of the partition deed, name of defendant No.1 came to be
entered in respect of item Nos.1 to 3 of the schedule
properties. At an undisputed point of time this mutation was
certified, which was never challenged either by Sangappa, who
was alive or by any of the members of the family. Defendant
Nos.6 and 7 are the purchasers and the sale deed, which was
executed in their favour, was never challenged by the plaintiff.
20. Learned counsel further submitted that the plaintiff,
who is examined as PW.1 has categorically admitted that item
Nos.1 and 2, which were standing in the name of defendant
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No.1 was sold in favour of third parties and the remaining
extent of land is also not included in the said partition. The
sale of the property by the plaintiff is admitted by the plaintiff,
as is evidenced by Exs.D27 - sale deed. Therefore, it is made
clear that all the sons of Sangappa were parties to the partition
and they were enjoying the properties, which were fallen to
their respective shares. Even the plaintiff has sold some of the
items of the properties in favour of third parties, which disclose
that all the members of the family have acted on the basis of
the partition, which was effected during the year 1974. Under
such circumstances, the plaintiff is not entitled for any share.
Hence, he prays for dismissal of the appeal.
21. The appeal was admitted vide order dated
31.03.2010 to consider the following substantial question of
law:
"Whether the plaintiff had proved the oral
partition that was asserted with reference to the
settled position of law as to the manner in which an
oral partition can be established?"
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22. This Court vide order dated 24.11.2023 has
modified and reframed the substantial questions of law as
under:
1. Whether the finding of the Trial Court and
the First Appellate Court admitting the defence of
defendant No.1 with regard to the partition in the
year 1974, was right in the absence any material to
substantiate the same.
2. Whether defendant Nos.8 to 11 being the
daughters of Sangappa are entitled for equal share in
the schedule properties?
My answer to above substantial question of law No.1 in
the Affirmative and substantial question of law No.2 in the
'Negative' for the following:
REASONS
23. It is the specific contention of the plaintiff that
Sangappa is his father. He had three sons i.e., Shantgouda,
Chandramappa - plaintiff and Nanagouda - defendant No.2.
Sangappa had also four daughters i.e., defendant Nos.8 to 11.
Defendant Nos.6 and 7 are said to be the purchasers of item
Nos.1 to 3 from defendant No.1 under different sale deeds and
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they are strangers to the family. All these facts are not in
dispute.
24. The contention of the plaintiff is disputed by
defendant No.1 on the ground that there was already a
partition in the family during 1974 and accordingly, the
properties were mutated in their respective names. In order to
establish the same, defendant No.1 places reliance on Ex.D1 -
mutation entry, which was certified during July, 1973. As per
Ex.D1, Sangappa was allotted Survey Nos.63 and 102,
measuring 16.06 acres and 13.38 acres respectively. The
plaintiff was allotted Survey No.102, measuring 16 acres and
defendant No.2 was allotted 14 acres in Survey No.49.
25. The plaintiff is examined as PW.1 and he admitted
that Survey No.102 stands in his name and he sold five acres
out the same in favour of a third party. The sale deed is also
produced as per Ex.D27, which is an admitted document. It is
further admitted by PW.1 that said Survey No.102 was not
included in the suit schedule to seek partition. Thus it is clear
that plaintiff is also the beneficiary under the partition referred
to in Ex.D1, he sold a portion of the property in favour of third
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parties and has not choosen to include the same in the
schedule to seek partition.
26. Even though it is contended that the plaintiff was a
minor during 1974, the materials on record disclose that he
was aged 12 years at that time. Atleast during 1980 when the
plaintiff attained majority, he has not chosen to challenge the
said partition or mutation entry. It is only in the year 2006, the
present suit was came to be filed excluding the properties that
were allotted to his share. The contention of the plaintiff that
the partition effected during 1974 is inequitable as no share
was allotted to Sangappa or to the daughters, cannot be
accepted at this length of time as there is no such pleadings in
the plaint nor there is any evidence to substantiate the same.
Even though partition deed was not produced, which is having
a reference in Ex.D1, the same cannot be fetal to the case of
defendant No.1 in view of the fact that plaintiff has acted on
such mutation and sold the property that had fallen to his
share. It is stated that defendant Nos.6 and 7 are the
purchasers of item Nos.1 to 3 during the pendency of the suit.
When the plaintiff has failed in proving his contention that
schedule properties are joint family properties, he is not
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entitled for any share against any of the defendants. Since the
plaintiff has not chosen to challenge the partition of the year
1974 even after attaining majority, now he is estopped from
contending that it was an inequitable partition that too in the
absence of any pleadings to that effect.
27. Defendant No.1 had set up a defence of earlier
partition and he is successful in probablising the same by
producing Exs.D1 and D27 and also from the admissions of
PW.1. Therefore, the plaintiff is not entitled for any relief.
Defendant Nos.8 to 11 are admittedly the daughters of
Sangappa. They have filed their written statement after
impleading them in the suit, claiming equal share in the
schedule properties as per the Hindu Succession (Amendment)
Act, 2005. Section 6 of the Act even though provides
coparcenery rights to the daughters by birth, the proviso to the
said section is to the effect that the dispossessions, alienations
including any partition or testamentary disposition of
properties, which had taken place before 20.12.2004, cannot
be invalidated by invoking Section 6 of the Act. In the pesent
case, the discussion held above discloses that there was
already a parition in the family duirng 1974 and based on the
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same, defendant No.1 sold item Nos.1 to 3 in favour of
defendant No.6 under the registered sale deed. Under such
circumstances, the claim of defendant Nos.8 to 11 cannot be
entertained.
28. I have gone through the impugned judgment and
decree passed by the Trial Court and the First Appellate Court.
When both the Courts have taken into consideration the
materials on record in a proper perspective and recorded
concurrent finding of facts while dismissing the suit of the
plaintiff, I do not find any reason to interfere with the same.
29. In view of the discussion held above, the
substantial questions of law formulated for consideration are
answered against the appellants. Hence, I proceed to pass the
following:
ORDER
(i) The appeal is dismissed with costs.
(ii) The judgment and decree dated 06.08.2008 passed
in O.S.No.62/2006 on the file of the learned Civil Judge
(Sr.Dn.) at Shorapur and the judgment and decree dated
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26.11.2009 passed in R.A.No.22/2008 on the file of the learned
Presiding Officer, Fast Track Court-I at Yadgir, are hereby
confirmed.
Registry to send back the Trial Court and First Appellate
Court records along with copies of this judgment.
Sd/-
JUDGE
PN/SRT
CT-VD
