Hanamantagouda vs Tayakka @ Jayashri
2023 Latest Caselaw 6893 Kant

                                                    -1-
                                                          NC: 2023:KHC-D:11577
                                                            RFA No. 100265 of 2016




                                     IN THE HIGH COURT OF KARNATAKA,

                                             DHARWAD BENCH

                                  DATED THIS THE 3RD DAY OF OCTOBER, 2023

                                                   BEFORE
                               THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
                               REGULAR FIRST APPEAL NO. 100265 OF 2016 (PAR)
                          BETWEEN:

                          HANAMANTAGOUDA
                          S/O BASANAGOUDA PATIL,
                          AGE: 47 YEARS,
                          OCC: AGRICULTURE,
                          R/O: INAM YARAGOPPA,
                          TQ: BADAMI,
                          DIST: BAGALKOTE.

                                                                      ...APPELLANT

                          (BY SRI. B.V.SOMAPUR, ADVOCATE)

                          AND:

                          1.    TAYAKKA @ JAYASHRI,
            Digitally
            signed by
            VIJAYALAXMI
VIJAYALAXMI M BHAT
                                W/O SRINIVAS KURAHATTI,
M BHAT      Date:
            2023.10.05
            10:27:56
                                AGE: 40 YEARS,
            +0530
                                OCC: HOUSE WORK,
                                R/O: SOMAPUR, NARAGUND,
                                TQ: NARAGUND,
                                DIST: GADAG.

                          2.    BASANAGOUDA
                                S/O HANAMANTAGOUDA PATIL,
                                AGE: 75 YEARS,
                                OCC: AGRICULTURE,
                                R/O: INAM YARAGOPPA,
                                TQ: BADAMI,
                                DIST: BAGALKOTE.
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                                NC: 2023:KHC-D:11577
                                    RFA No. 100265 of 2016




3.   TUNDAWWA
     W/O BASANAGOUDA PATIL,
     AGE: 60 YEARS,
     OCC: HOUSE WORK,
     R/O: INAM YARAGOPPA,
     TQ: BADAMI,
     DIST: BAGALKOTE.

4.   SANJEEV
     S/O BASANAGOUDA PATIL,
     AGE: 45 YEARS,
     OCC: AGRICULTURE,
     R/O: INAM YARAGOPPA,
     TQ: BADAMI,
     DIST: BAGALKOTE.

                                           ...RESPONDENTS

(BY SRI. SOURABH S BALLOLI, ADVOCATE FOR
SRI. SHIVARAJ S BALLOLI, ADVOCATE FOR R1;
R2, R3 AND R4- ARE NOTICE SERVED)

                        ____

      THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE
1 OF CPC., PRAYING TO SET ASIDE ORDER DATED 03.09.2015
PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC,
BADAMI IN O.S.NO.22/2011, SO FAR AS IT RELATES TO ITEM
NO.1 AND 2 OF THE SUIT SCHEDULE PROPERTIES IN THE
INTEREST OF JUSTICE AND EQUITY.


      THIS APPEAL, COMING ON FOR FURTHER DICTATION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                                     NC: 2023:KHC-D:11577
                                          RFA No. 100265 of 2016




                           JUDGMENT

The defendants are aggrieved by the decree for

partition. The admitted genealogy is as under:

Basanagouda (Deft.No.1)

Hanamavva Tungavva (dead) (Deft.No.2)

Hanamantgouda (Deft.No.3) Sanjeev Tayakka (Deft.No.4) (Plff)

2. Basanagouda is the father of the plaintiff.

Basanagouda had two wives, namely Hanamavva and

Tungavva. Hanamavva was first wife. After the death of

the first wife, he married second wife Tungavva. From first

wife Hanamavva, he had a son by name Hanamantgouda.

From second wife, he had two children, namely, Sanjeev

and Tayakka. Tayakka is the plaintiff, Basanagouda is

defendant No.1, Tungavva is defendant No.2,

NC: 2023:KHC-D:11577 RFA No. 100265 of 2016

Hanamanthgouda is defendant No.3 and Sanjeev is

defendant No.4 in O.S.No.22/2011.

3. The daughter from second wife Tayakka has

filed a suit for partition claiming 1/5th share in the suit

schedule properties. It is her contention that, the

properties bearing Survey No.1/5 and 162 are the

ancestral properties in the hands of her father

Basanagouda and utilizing the income from the ancestral

properties, he purchased the properties bearing Survey

No.31/1 and 68/1. It is her contention that, she is having

1/5th share in the said properties. It is further pleaded

that, item No.5 and 6 of suit schedule properties, namely

residential houses, are also the properties inherited after

the death of the father of defendant No.1.

4. The trial Court rejected the contention of the

defendants relating to the limitation and previous partition

held that the suit is in time and also concluded that there

is no partition. Aggrieved by the judgment granting 1/5th

NC: 2023:KHC-D:11577 RFA No. 100265 of 2016

share to the plaintiff in all the suit schedule properties, the

defendant No.3 is in appeal.

5. It is urged on behalf of the appellant that, in

the year 1991, there was a partition and in the said

partition, the properties are divided among defendant No.1

and his son from the first wife and also the son from the

second wife. Thus, it is urged as the partition has taken

place in 1991, the plaintiff cannot claim share in the

properties. It is also urged that the plaintiff could not

have claimed any share because of the bar contained

under Section 6 of the Hindu Succession Act, 1956, as

Section 6 will not enable the daughter to claim any share,

in case partition has taken place prior to 2005.

6. Learned counsel for respondent No.1/plaintiff

Sri.Sourabh Mirje would urge that, the contention relating

to the previous partition is not established. In the cross-

examination, the defendants have admitted that the

arrangement made in the year 1991, reflected in Mutation

Entry No.806, is only an arrangement to avail the benefit

NC: 2023:KHC-D:11577 RFA No. 100265 of 2016

available to the small holders, as the Government scheme

did not enable the big land holders to avail the benefit of

the scheme. It is also his contention that, in the written

statement the defendants have admitted that there is no

partition in the family. It is his further contention that, the

written statement would also reveal that the agricultural

lands and two residential houses were the ancestral

properties in the hands of the defendant No.1 and without

there being any proof relating to separate income, the

defendant No.1 cannot claim that the properties purchased

by him are the self-acquired properties.

7. This Court has considered the contentions

raised at the Bar and also perused the impugned judgment

and decree.

8. On considering the contentions and perusal of

the records, the following points arise for consideration:

i. Whether the appellant establish that item Nos.2 and 3 in the Schedule 'A'

NC: 2023:KHC-D:11577 RFA No. 100265 of 2016

properties are the self-acquired properties of defendant No.1?

ii. Whether the defendant No.3 established that there was a partition in the year 1991?

9. As far as the question relating to the self-

acquisition of item No. 2 and 3 of Schedule 'A' properties,

the defendant No.1 has not produced any evidence to

show that he had independent and separate income other

than the income from the ancestral properties, to purchase

the said properties. There is no pleading to this effect.

Admittedly, item No.1 and 4 properties are the ancestral

properties. In the absence of any pleading and evidence

to show that defendant No.1 had sufficient income to

purchase the properties on his own without the aid of the

income from the ancestral properties, this Court is of the

view that the plaintiff has made out a case that item No. 2

and 3 properties are purchased from the income derived

from item No. 1 and 4 of Schedule 'A' properties. Hence

the finding of the trial Court that the item No.2 and 3

NC: 2023:KHC-D:11577 RFA No. 100265 of 2016

properties are also the joint family properties, is very

much tenable in law.

10. As far as the question relating to the previous

partition urged by the defendants, it is to be noticed that

the said previous partition is not established. In para No.3

of the written statement. Defendants No.1 and 2 have

clearly admitted that there is no partition in respect of the

suit schedule properties. Defendants No.1 and 2 in the

written statement have also stated that Mutation Entry

No.806, which speaks about the partition, is not a partition

and is only an arrangement to divide the properties to

avail the benefits available to small holders. The

defendant No.3 in fact has taken a contention that there is

already a partition in the year 1991 as reflected in

M.E.No.806. In the cross-examination, DW3 has admitted

that the said arrangement was made only to avail the

benefit from the Government, which is available to the

small holders. It is also stated that the mother is not

given any share in the alleged partition. This being the

NC: 2023:KHC-D:11577 RFA No. 100265 of 2016

case, this Court is of the view that the alleged partition of

1991 is not established. Under the circumstances, the

trial Court is justified in holding that the partition has not

taken place in the family.

11. Accordingly, the appeal is dismissed by

confirming the impugned judgment and decree dated

03.09.2015, passed by the Senior Civil Judge, Badami, in

O.S.No.22/2011.

Sd/-

JUDGE

gab CT-PA