Karnataka High Court
Sharanappa S/O Parappa Hugar vs Neelamma W/O Sangappa Jeer Ors on 28 November, 2023
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RSA No. 7159 of 2012
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.7159 OF 2012 (PAR&POSS)
BETWEEN:
SHARANAPPA S/O PARAPPA HUGAR
SINCE DIED
SMT. LAKSHMIBAI
W/O HANAMANTHRAYA HUGAR @ PUJARI,
AGE: 74 YEARS, OCC: AGRICULTURE,
R/O NEAR MANGULI COLLEGE,
GOLGER TO BIJAPUR ROAD, SINDAGI,
TQ: SINDAGI, DIST: VIJAYAPUR-586128.
...APPELLANT
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
Digitally signed V/O DATED 29/8/2019 R6 IS TRANSPOSED AS APPELLANT)
by SHILPA R
TENIHALLI
Location: HIGH AND:
COURT OF
KARNATAKA
1. NEELAMMA W/O SANGAPPA JEER
AGE: 38 YEARS, OCC: AGRICULTURE
R/O BYAKODI VILLAGE
TQ: SINDAGI, DIST: VIJAYAPUR-586128.
2. BHAGAWWA W/O SHARANAPPA HUGAR
AGE: 69 YEARS, OCC. HOUSEHOLD
R/O HUGAR ONI, SINDAGI
TQ: SINDAGI, DIST: VIJAYAPUR-586128.
3. PARAPPA S/O SHARANAPPA HUGAR
AGE: 39 YEARS, OCC. AGRICULTURE
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RSA No. 7159 of 2012
R/O HUGAR ONI, SINDAGI
TQ: SINDAGI, DIST: VIJAYAPUR-586128.
4. SURESH S/O SHARANAPPA HUGAR
AGE: 35 YEARS, OCC. AGRICULTURE
R/O HUGAR ONI, SINDAGI
TQ: SINDAGI, DIST: VIJAYAPUR-586128.
5. NINGAMMA D/O SHARANAPPA HUGAR
AGE: 31 YEARS, OCC. AGRICULTURE
R/O HUGAR ONI, SINDAGI
TQ: SINDAGI, DIST: VIJAYAPUR-586128.
7. SHIVALEELA
W/O SRIMANTH HUGAR @ PUJARI
AGE: 68 YERS, OCC: AGRICULTURE,
C/O SANGAPPA HUGAR
GOLGER ROAD, HUGAR COMPLEX SINDAGI
TQ: SINDGI, DIST: VIJAYAPUR-586128.
...RESPONDENTS
(BY SMT. REKHA M. PATIL, FOR SRI. G G CHAGASHETTI
ADVS. FOR R1;
R2, R3, R4, R5 ARE SERVED;
SRI BAPUGOUDA SIDDAPPA, ADVOCATE FOR R7)
THIS REGULAR SECOND APPEAL IS FILED U/S 100 OF
CPC, PRAYING TO ALLOWED BY SET ASIDE JUDGMENT AND
DECREE PASSED BY THE CIVIL JUDGE (SR.DN.) SINDAGI IN
O.S.NO.67/2007 DATED: 20.03.2009 AND WHICH IS
CONFIRMED IN THE R.A.NO.68/2009 BY THE III ADDL.
DISTRICT JUDGE BIJAPUR VIDE JUDGMENT & DECREE DATED
14.02.2012 AND CONSEQUENTLY DISMISS THE SUIT OF THE
PLAINTIFF WITH COST THROUGHOUT.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 7159 of 2012
JUDGMENT
Defendant No.1 in O.S.No.67/2007 on the file of the
learned Civil Judge (Sr.Dn.), Sindagi (hereinafter referred to as
'the Trial Court' for brevity), is impugning the judgment and
decree dated 20.03.2009, decreeing the suit of the plaintiff and
declaring that the plaintiff is entitled for 1/6th share in the suit
property and also declaring that the alienation of the suit lands
bearing RS No.723/1 and RS No.758/1 in favour of defendant
No.6 is not binding on the plaintiff to the extent of her share,
which was confirmed in R.A.No.68/2009 on the file of the
learned III Additional District Judge, Bijapur (hereinafter
referred to as 'the First Appellate Court' for brevity) vide
judgment dated 14.02.2012.
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
Neelamma filed the suit O.S.No.67/2007 before the Trial Court
against defendant Nos.1 to 7 seeking partition and separate
possession of the suit properties i.e., (1) RS No.723/1,
measuring 2.14 acres (2) RS No.758/1, measuring 5.30 acres
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(3) RS No.832/1, measuring 0.20 acres and (4) the house
bearing VPC No.68, situated at Ward No.1, Sindagi (hereinafter
referred to as 'the suit properties' for brevity) and to allot her
1/6th share in the same by metes and bounds.
4. It is contended that the plaintiff is the daughter of
defendant Nos.1 and 2. Defendant Nos.3 and 4 are her
brothers. Defendant No.5 is her sister. They constitute the
joint family and the suit properties are the joint family
properties inherited by defendant No.1 from his ancestors.
5. It is stated that defendant No.1 was adopted by
Ningawwa, W/o. Parappa Hugar and thereafter, he married
defendant No.2. Defendant Nos.3 to 5 and the plaintiff were
born in the said wed lock. The adoptive mother Ningawwa died
intestate and the suit properties were inherited by defendant
No.1. RS No.832/1 was acquired by defendant No.1 under the
partition as per ME No.1482. Therefore, the suit properties are
the joint family properties acquired by defendant No.1 and the
plaintiff and defendant Nos.1 to 5 are entitled for share in the
same.
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6. It is contended that the marriage of the plaintiff
was performed during 1994 and since then, she was being
given her share in the income derived from the suit properties.
However, defendant No.1 is intending to sell the suit properties
in favour of Sangappa Siddappa Hugar. Panchayath was
conveyed on 01.12.1999, wherein defendant No.1 proclaimed
that he will not give any share in the property or in the income
derived from it to the plaintiff. Therefore, cause of action had
arisen to file the suit. Accordingly, the plaintiff filed the suit
seeking partition and separate possession of her 1/6th share by
metes and bounds. During the pendency of the suit, defendant
Nos.6 and 7 were impleaded.
7. Defendant No.1 filed the written statement denying
the contentions taken by the plaintiff regarding her right over
the suit properties. The relationship between the parties and
the fact that defendant No.1 was adopted by Ningawwa and
that the plaintiff and defendant Nos.3 to 5 being the children of
defendant Nos.1 and 2 are all admitted. It is denied that the
plaintiff was given any share in the income derived from the
suit properties.
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8. It is contended that defendant No.1 had acquired
the suit properties in his individual capacity after the death of
his adopted mother Ningawwa. After the death of Ningawwa,
defendant No.1 is in exclusive possession and enjoyment of the
suit properties. From out of his hard labour, skill and
investment, he improved the suit properties and brought up the
plaintiff and defendant Nos.3 to 5, educated them and even
performed marriage of the plaintiff. The plaintiff is not having
any right, title or interest over any of the suit properties, nor
she was in possession of the same at any point of time.
9. It is contended that the plaintiff had filed similar
suit O.S.No.226/1999 before the learned Principal Civil Judge
(Jr.Dn.), Sindagi. The plaint was returned for want of
jurisdiction. In the meantime, defendant No.1 executed the
sale deed in favour of defendant Nos.6 and 7. The said sale
deed remained unchallenged and the same was never objected
by the plaintiff or defendant Nos.2 to 5. Thus, it is contended
that defendant Nos.6 and 7 have acquired valid right and title
in respect of the suit properties. The sale deed is binding on
the plaintiff and defendant Nos.3 to 5. Therefore, the suit of
the plaintiff is not maintainable.
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10. Defendant Nos.6 and 7 filed the written statement
denying the contentions taken by the plaintiff in the plaint
regarding her right, title and interest over the suit properties.
It is contended that after making due enquiry regarding the
nature of the property and right of defendant No.1, defendant
No.6 purchased the land bearing RS No.758/1, measuring 5.30
acres and Sy.No.723/1, measuring 2.14 acres under the
registered sale deed dated 07.08.2001 for a valid
consideration. Since then, he is in possession and enjoyment
of the property as bona-fide purchaser for value, without
notice. It is also contended that defendant No.7 is no way
concerned to the suit properties. Therefore, they prayed for
dismissal of the suit.
11. On the basis of these pleadings, the following issues
came to be framed for consideration;
1) Whether the plaintiff proves that the suit properties
are the joint family properties liable for partition?
2) Whether the plaintiff is entitled for 1/6th share in the
suit properties?
3) Whether the defendant-1 proves that the suit
properties are his self acquired properties?
4) Whether the defendant-1 proves that the sale deed
executed in favour of Laxmibai Pujari and Smt.
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Shivaleela Pujari are binding on the plaintiff and
defendants-3 to 5?
5) Whether the defendants-6 & 7 prove that they are
bonafide purchasers for value without notice?
6) What order or decree?"
12. The plaintiff examined PWs.1 and 2 before the Trial
Court and got marked Exs.P1 to 14 in support of her contention
and defendant No.1 examined himself as DW-1 and examined
DWs.2 to 4 and got marked Exs.D1 to D5 in support of his
defence. The Trial Court after taking into consideration all
these materials on record, answered issue Nos.1 and 2 in the
affirmative and issue Nos.3 to 5 in the negative and
accordingly, the suit of the plaintiff came to be decreed,
declaring that she is having 1/6th share in the suit properties
and also declaring that the alienation of the suit properties
bearing RS No.723/1 and RS No.758/1 in favour of defendant
No.6 is not binding on the share of the plaintiff. Accordingly,
the impugned judgment and decree came to be passed.
13. Being aggrieved by the same, defendant No.1
preferred R.A.No.68/2009 before the First Appellate Court. The
First Appellate Court on re-appreciation of the materials on
record, dismissed the appeal and confirmed the impugned
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judgment and decree passed by the Trial Court. Being
aggrieved by the same, defendant No.1 has preferred this
appeal.
14. During the pendency of the appeal, the original
defendant No.1 who was the appellant died and defendant No.6
who was arrayed as respondent No.6 in the appeal is
transposed as appellant.
15. Heard Sri Sachin M. Mahajan, learned counsel for
the appellant/defendant No.1 and Smt. Rekha M. Patil and Sri
G.G.Chagashetti, learned counsel for respondent No.1/plaintiff.
Perused the materials including the Trial Court and the First
Appellate Court records.
16. Learned counsel for the appellant/defendant No.6
contended that the relationship between the parties and the
fact that respondent No.1 was adopted by Ningawwa during
1964 is not in dispute. It is also not in dispute that the suit
properties were belonging to the husband of Ningawwa and
after his death, Ningawwa succeeded to the same. After the
death of Ningawwa on 04.09.1976, defendant No.1 became the
absolute owner of the suit properties under Section 15 of the
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Hindu Succession Act. Therefore, the plaintiff or defendant
Nos.2 to 5 cannot seek any right, title or interest over the suit
properties. The Trial Court and the First Appellate Courts have
committed an error in holding that the suit properties are the
Hindu Joint Family properties and the plaintiff and defendant
Nos.1 to 5 are its coparceners. Both the Courts have
committed an error in applying Section 6 of the Hindu
Succession Act without any basis. Therefore, he prays for
allowing the appeal, in the interest of justice.
17. Per contra, learned counsel for respondent
No.1/plaintiff opposing the appeal submitted that the
relationship between the parties and defendant No.1 being
adopted by Ningawwa is admitted. The suit properties were
acquired by defendant No.1 after the death of Ningawwa and
therefore, the suit properties are the ancestral properties. The
Trial Court and the First Appellate Courts have rightly invoked
Section 6 of the Hindu Succession Act and decreed the suit of
the plaintiff allotting 1/6th share in the same. There are no
reasons to interfere with the concurrent finding of facts by both
the Courts. Therefore, she prayed for dismissal of the appeal.
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18. This Court, vide order dated 27.11.2023 framed the
following substantial question of law while admitting the
appeal;
"Whether the property acquired by defendant
No.1 from his adoptive mother late Smt.Ningavva can
be considered as co-parcenary or joint family
property?"
My answer to the above substantial question of law is in
the 'Negative' for the following;
REASONS
19. It is the specific contention of the plaintiff that she
is the daughter of defendant No.1 and she is entitled to 1/6th
share in the suit properties. Per contra, it is the specific
contention of defendant No.1 that the suit properties are his
self acquired properties as the same were acquired by him from
his adoptive mother Smt. Ningavva. The facts of the case and
the relationship between the parties as pleaded by the plaintiff
are admitted. Only dispute between the parties is that whether
the suit properties were acquired by defendant No.1 absolutely
from his adoptive mother Smt. Ningavva after her death or
whether the same are the joint family properties.
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20. Even though learned counsel for the respondent-
plaintiff tried to contend that the properties are the joint family
properties and it devolves on the members of the family as per
Section 6 of the Hindu Succession Act, there is no such
pleading in the plaint nor there is any evidence to that effect.
The documents also do not support the contention which was
raised for the first time before this Court that the properties are
the joint family properties.
21. Learned counsel for the respondents placed reliance
on Ex.P-8 to contend that as per M.E. No.1482 certified during
1997, there was a partition in the family in which Channappa
Peerappa Hugar who is defendant No.1 is a party. But the
learned counsel fails to explain as to who are the other
members who are referred to in Ex.P-8 i.e., Siddappa,
Sangappa, Ramesh and Basavaraj. However, learned counsel
for the appellant submits that R.S.No.832/1 measuring 1 acre
20 guntas i.e., item No.3 in the suit properties belonged to the
temple and six persons mentioned in Ex.P-8 partitioned the
same in which defendant No.1 was allotted 20 guntas. But
however no such explanation is found in Ex.P-8. Even
otherwise, it is not in dispute as per this document that 20
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guntas of land in R.S.No.832/1 of Sindagi village was allotted to
the share of defendant No.1.
22. After the death of Parappa - the husband of
Ningavva in the year 1924, all his properties devolved on his
wife Ningavva in view of Section 8 of the Hindu Succession Act,
in the absence of any other legal representatives. Once the
property is devolved on a female Hindu, it becomes her
absolute property under sub-section (1) of Section 14 of the
Hindu Succession Act. When the property was the absolute
property of Ningavva, the subsequent adoption of defendant
No.1 by her would not divest her right over the property in
view of Section 12(c) of the Hindu Adoption and Maintenance
Act, 1956. When the property absolutely vests in Ningavva, it
is only after her death on 04.09.1976, the property will devolve
on defendant No.1 as per Section 15 (1) of the Hindu
Succession Act. Therefore, defendant No.1 being the adoptive
son will acquire it as his absolute property. His wife and
children cannot have any right over the same during his
lifetime.
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23. As per the contention raised by defendant No.6 who
is the appellant herein and also defendant No.1, item Nos.1 and
2 of the suit properties i.e., R.S.No.723/1 and R.S.No.758/1
measuring 2.14 and 5.30 acres respectively of Sindagi village
were purchased by defendant No.6 under the registered sale
deeds Exs.D-4 and D-5 copies of which are marked as Exs.P-13
and P-14. Therefore, it is clear that defendant No.1 sold item
Nos.1 and 2 of the suit properties in favour of defendant No.6
under the registered sale deeds. Admittedly, plaintiff has not
sought for cancellation of the sale deeds nor she has sought for
declaration that the sale deeds are not binding on her share of
properties. Therefore, the plaintiff cannot seek any relief
against defendant No.6 who is the purchaser of R.S.Nos.723/1
and 758/1 measuring 2.14 acres and 5.30 acres situated at
Sindagi village which are item Nos.1 and 2 of the suit
properties. Even otherwise, when it is held that the suit
properties devolved on defendant No.1 under Section 15(1) of
the Hindu Succession Act after the death of his adopted mother
Ningavva, plaintiff or other heirs of defendant No.1 cannot have
any right over the same during his lifetime.
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24. It is the admitted fact that defendant No.1 who
preferred this appeal died intestate during the pendency of the
appeal i.e., on 20.09.2013. After the death of defendant No.1,
plaintiff and defendant Nos.2 to 5 inherited the properties left
behind by defendant No.1 i.e., item No.3 - R.S.No.832/1
measuring 20 guntas and item No.4 - the house bearing VPC
No.68, Ward No.1 of Sindagi. Therefore, it is to be held that
the plaintiff and defendant Nos.2 to 5 are entitled for 1/5th
share in those two items of properties only. In view of the
discussion held above, I am of the opinion that the suit of the
plaintiff in respect of item Nos.1 and 2 of the suit properties is
liable to be rejected. Even though on the basis of the
discussion held above, the substantial question of law is liable
to be answered in the negative, the subsequent development
during the pendency of the litigation discloses that defendant
No.1 died intestate after preferring this appeal. Therefore, the
plaintiff will succeed to get 1/5th share in item Nos.3 and 4 of
the suit properties.
25. I have gone through the impugned judgment and
decree passed by the Trial Court and the First Appellate Court.
Both the Courts have committed an error in holding that
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defendant No.1 succeeded to the properties derived from
Parappa who died in the year 1924. There is no pleading to the
effect that Parappa was the member of the joint family and he
succeeded to the suit properties or that the suit properties are
the joint family properties. The Trial Court and the First
Appellate Court based their findings only on Ex.P-8 which was
not explained either in the pleadings or in the evidence of the
plaintiff nor there is any cross-examination on Ex.P-8 to the
defence witnesses. Under such circumstances, both the courts
committed an error in forming the opinion that the suit
properties are the joint family properties and that the plaintiff is
one of the coparceners. Such findings, even though concurrent
findings, are perverse and against the settled position of law.
Therefore, as I have already stated that in view of death of
defendant No.1 during the pendency of this appeal, the plaintiff
is entitled to claim 1/5th share in item Nos.3 and 4 of the suit
properties. Hence, even though the substantial question of law
is answered in the negative, the appeal is liable to be allowed in
part.
26. In view of the discussion held above, I am of the
opinion that the suit of the plaintiff with regard to item Nos.1
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and 2 of the suit properties is liable to be dismissed, whereas
in respect of item Nos.3 and 4 it is to be held that the plaintiff
is entitled for 1/5th share. Accordingly, I proceed to pass the
following:
ORDER
(i) The appeal is allowed in part with costs.
(ii) The impugned judgment and decree dated
20.03.2009 on the file of the Civil Judge
(Sr.Dn.), Sindagi passed in O.S.No.67/2007
and confirmed by the judgment and decree
dated 14.02.2012 on the file of the III
Additional District Judge, Vijayapur passed in
R.A.No.68/2009 are modified.
(iii) The suit of the plaintiff in respect of
R.S.No.723/1 measuring 2.14 acres and
R.S.No.758/1 measuring 5.30 acres situated at
Sindagi village, which are item Nos.1 and 2 of
the suit properties, is dismissed.
(iv) The suit of the plaintiff in respect of
R.S.No.832/1 measuring 20 guntas of Sindagi
village and house bearing VPC No.68, Ward
No.1 of Sindagi village, which are item Nos.3
and 4 of the suit properties, is decreed. It is
held that the plaintiff is entitled for 1/5th share
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in these two items of properties by metes and
bounds.
(v) Office is directed to draw the decree
accordingly.
Registry to send back the Trial Court and First Appellate
Court records along with copies of this judgment and decree.
In view of disposal of the appeal, pending interlocutory
applications, if any, stand disposed of.
Sd/-
JUDGE
PN/SWK
CT-VD
