Karnataka High Court
Smt. Hirabai W/O Raghu Banne vs Smt Shakuntala on 10 April, 2024
-1-
NC: 2024:KHC-D:6324-DB
RFA No. 100319 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.100319 OF 2022 (PAR/POS)
BETWEEN:
1. SMT. HIRABAI W/O. RAGHU BANNE
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O: SHIRADAWAD, TAL: CHIKODI,
DIST: BELGAVI-590001.
2. SMT. SHANTABAI W/O. BALASAB
@ KRISHNA KOLEKAR,
R/O: HERLE, TAL: HATHKANAGALA,
DIST: KOLHAPUR.
...APPELLANTS
(BY SRI.DINESH M.KULKARNI, ADVOCATE)
AND:
SHIVAKUMAR
HIREMATH
1. SMT. SHAKUNTALA
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH W/O. BIRENDRA DHONE @ DHANGAR,
Date: 2024.04.24
14:22:30 +0530
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: SHIRADAWAD, TAL: CHIKODI,
DIST: BELAGAVI.
2. PRASHANT
S/O. BIRENDRA DHONE @ DHANAGAR,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O: SHIRADAWAD, TAL: CHIKODI,
DIST: BELAGAVI.
3. SUKUMAR
S/O. BIRENDRA DHONE @ DHANAGAR,
AGE: 38 YEARS, OCC: AGRICULTURE,
-2-
NC: 2024:KHC-D:6324-DB
RFA No. 100319 of 2022
R/O: SHIRADAWAD, TAL: CHIKODI,
DIST: BELAGAVI.
4. SMT. CHANDRABAI W/O. BHARAMA BANNE
AGE: 75 YEARS, OCC: AGRICULTURE
AND HOUSEHOLD,
R/O: MANAKAPUR, TAL: CHIKODI,
DIST: BELAGAVI.
5. SMT. SUNDRABAI W/O. KALLAPPA GAVADE
AGE: 78 YEARS, OCC: AGRICULTURE
AND HOUSEHOLD,
R/O: KARADAGA, TAL: CHIKODI,
DIST: BELAGAVI.
6. SMT. INDIRABAI W/O. YALLAPPA HAJARE
AGE: 72 YEARS, OCC: AGRICULTURE
AND HOUSEHOLD,
R/O: BENNADI, TAL: CHIKODI,
DIST: BELAGAVI.
7. SMT. MAYAWWA W/O. KALLAPPA RANAGE
AGE: 70 YEARS, OCC: AGRICULTURE
AND HOUSEHOLD,
R/O: KHADAKLAT, TAL: CHIKODI,
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI.ANIL KALE, ADVOCATE)
THIS RFA IS FILED UNDER ORDER 41 RULE 1 READ WITH
SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 24.02.2022 PASSED IN O.S.NO.132/2012 ON THE FILE OF
THE PRINCIPAL SENIOR CIVIL JUDGE, CHIKODI, DECREEING THE
SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
E.S.INDIRESH, J., DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC-D:6324-DB
RFA No. 100319 of 2022
JUDGMENT
This appeal is preferred by the defendants 1 to 3,
challenging the judgment and decree dated 24.02.2022 in
O.S.No.132/2012 on the file of the Principal Civil Judge,
Chikkodi (for short "Trial Court"), decreeing the suit of the
plaintiff.
2. For the sake of convenience, the parties in this
appeal are referred to in terms of their status and ranking
before the Trial Court.
3. One Mayappa (Beeru Dhanagar) is the propositus
of the family of the plaintiffs and defendants. It is stated that
the said propositus had two sons viz., Siddu and Laxman.
Plaintiffs 4 to 7 are the daughters of Laxman. Plaintiff No.1 is
the wife of Beerendra (1st son of Laxman). Plaintiffs 2 and 3
are the children of late Beerendra and Shakuntala (plaintiff
No.1). It is further stated in the plaint that the first son of
Mayappa i.e. Siddu had two wives viz., Laxmibai-I and
Laxmibai-II. According to the plaintiffs, item Nos.1 to 3 of 'A'
schedule properties are the 'Japti Sanadi Inam' lands granted
NC: 2024:KHC-D:6324-DB
by the Government in favour of the joint family of the
plaintiffs and defendants for rendering Sanadi service by late
Mayappa and therefore, it is the contention of the plaintiffs
that item Nos.1 to 3 properties of 'A' schedule are the joint
family properties. It is also stated by the plaintiffs that item
No.4 property of 'A' schedule is the ancestral property of the
plaintiffs and defendants and accordingly, after the death of
late Mayappa, aforementioned properties have to be
devolved upon the plaintiffs and defendants equitably. It is
also stated in the plaint that, the said son of Mayappa-Siddu
died on 27.10.1946 leaving behind his brother Laxman, who
also died on 29.01.1949 and therefore, as there was no
partition in the family consisting of Siddu, Laxman and their
father-Mayappa, it is contended by the plaintiffs that they
are entitled for equitable share in the suit schedule
properties. Hence, the plaintiffs have filed O.S.No.132/2012
on the file of the Trial Court seeking partition and separate
possession in respect of the suit schedule properties.
4. After service of summons, defendants entered
appearance, however defendants 1 and 2 filed their written
NC: 2024:KHC-D:6324-DB
statement and same was adopted by defendant No.3. It is
the specific contention of defendants 1 and 2 that there was
no partition in the family of the plaintiffs and defendants and
therefore, after the death of Siddu and Laxman, the schedule
properties have to be inherited by the legal heirs of Siddu
and Laxman. Accordingly, it is contended by the defendants
that the registered Will dated 14.12.2007 is not binding on
them. It is also contended by the defendants that item No.1
to 3 properties of 'A' schedule are the Japti Sanadi Inam
lands granted by the government and after the death of
Mayappa, the said properties were continued to be in
possession of Siddu and upon his demise, the revenue
records stands in the name of his wife Laxmibai. Accordingly,
it is contended by the defendants that, Laxmibai was to be
declared as legal heir as per the revenue records and
therefore, the defendants refuted the contention raised by
the plaintiffs that item Nos.1 to 3 properties of 'A' schedule
are the joint family properties of late Mayappa. Hence, the
defendants sought for dismissal of the suit.
NC: 2024:KHC-D:6324-DB
5. The Trial Court, based on the pleadings on record,
has formulated following issues for its consideration:
1. Whether plaintiffs prove that suit properties
are joint family properties?
2. Whether plaintiffs prove that Raitawa
granted enures for and on behalf of the joint
family of plaintiffs and defendants?
3. Whether plaintiffs prove that Laxmibai,
W/o.Siddu Dhone @ Dhanagar has
bequeathed the suit properties in favour of
defendants No.1 and 2 under registered Will
dated 14.12.2007 is not binding on the
plaintiffs' share?
4. Whether plaintiffs prove that defendant No.1
has alienated the suit properties in favour of
defendant No.3 under registered sale deed
dated 30.04.2012 is not binding on the
plaintiffs' share?
5. Whether suit is barred by limitation?
6. Whether defendants No.1 and 2 prove that
Laxmibai W/o. Siddu Dhone @ Dhanagar
was exclusive owner of suit properties?
7. Whether suit is not valued and court fee
paid is not proper?
NC: 2024:KHC-D:6324-DB
8. Whether plaintiffs are entitled for
declaration and partition and separate
possession as prayed?
9. What order or decree?
6. In order to establish their case, plaintiffs
examined one witness as P.W.1 and produced 33
documents and same were marked as Exs.P.1 to P.33. The
defendants examined two witnesses as D.W.1 and D.W.2
and produced 34 documents which were marked as
Exs.D.1 to D.34. The Trial Court, after considering the
material on record, by its judgment and decree dated
24.02.2022, held that the plaintiffs are entitled for half
share in the suit schedule properties and remaining half
share was allotted in favour of defendants No.1 and 2.
Being aggrieved by the judgment and decree passed by
the Trial Court, defendants No.1 and 2 filed this appeal.
7. We have heard Sri. Dinesh M.Kulkarni learned
counsel appearing for the appellants, and Sri. Anil Kale,
learned counsel appearing for respondents No.1 to 7.
NC: 2024:KHC-D:6324-DB
8. Sri. Dinesh M.Kulkarni, learned counsel
appearing for the appellants, submits that the item Nos. 1
to 3 of 'A' Schedule properties are the inam properties and
therefore, after the death of Siddu, the entire revenue
records stand in the name of his wife-Laxmibai as the
owner of the land in question and therefore, it is
contended by the learned counsel for the appellants that
since the description of the land is 'japti sanadi inam', as
admitted by the plaintiffs themselves in the plaint, item
Nos.1 to 3 of 'A' Schedule properties belong to
Smt. Laxmibai (wife of Siddu). It is also contended by the
learned counsel appearing for the appellants that since
the entire revenue records stand in the name of
Smt. Laxmibai and in view of Section 14 of the Hindu
Succession Act, entire property vests with Smt. Laxmibai
and as such, she acquired valid right and title over the suit
schedule properties. He also invited attention of this Court
to Exs.D.28 and D.31 and argued that, the land was
assessed and full assessment fee was levied and the same
was addressed to Smt. Laxmibai as per the letter
NC: 2024:KHC-D:6324-DB
11.04.1973 by the Tahasildar, Chikkodi, and accordingly,
he submitted that as per Exs.D.28 and D.31, as the name
of Laxmibai was continued in the revenue records and
therefore, he sought for interference of this Court on the
ground that the Trial Court has not properly appreciated
the material on record.
9. Nextly, referring to Ex.P.15, it is contended by
the learned counsel appearing for the appellants that, the
name of Siddu was entered in the revenue records and
same would further substantiate the fact that item Nos.1
to 3 of 'A' Schedule properties stands in the name of Siddu
and upon his death, it was transferred to the name of his
wife-Laxmibai and therefore, he contended that the Trial
Court has not properly appreciated the evidence on record.
Accordingly, learned counsel sought for interference of this
Court on the ground that the findings recorded by the Trial
Court was not based on proper appreciation of material on
record. In this regard, he places reliance on the judgment
of the Hon'ble Supreme Court in the case of Bachharam
- 10 -
NC: 2024:KHC-D:6324-DB
Datta Patil and Another Vs. Vishwanath Pundlik Patil and
Others1. Referring to paragraph 5 of the said judgment,
he submitted that items No.1 to 3 of 'A' Schedule were
never identified as 'watan land' and the description of the
land was given as 'japti sanadi inam' land which would
mean that the said land which was subject matter of inam
land which has been granted by virtue of sanad, and same
has been resumed, however, as the same was retained by
the branch of family of Siddu and therefore, it is
contended that the finding recorded by the Trial Court
requires to be interfered with.
10. Per contra, Sri. Anil Kale, learned counsel
appearing for the respondents sought to justify the
impugned judgment and decree passed by the Trial Court.
He invited the attention of the Court to cross-examination
of D.W.1 and submitted that as D.W.1 himself admitted in
the evidence that there was no partition in the branch of
family of Siddu and Laxman and therefore, the entire
AIR 1957 SC 34
- 11 -
NC: 2024:KHC-D:6324-DB
property has to be considered as joint family property of
both plaintiffs and defendants and accordingly sought for
dismissal of the appeal.
11. In the light of the submissions made by the
learned counsel appearing for the parties, and taking into
consideration the factual aspects on record, the following
points are to be decided in this appeal:
i) Whether the finding recorded by the Trial Court on
issue Nos.2 and 6 requires interference of this
Court?
ii) Whether the properties standing in the name of
Smt. Laxmibai is to be considered under Section
14 of the Hindu Succession Act?
iii) Whether the judgment and decree passed by the
Trial Court requires interference of this Court?
iv) What order?
12. In the light of the submissions made by the
learned counsel appearing for the parties, we have
carefully examined the findings recorded by the Trial Court
and perused the original records. There is no dispute with
- 12 -
NC: 2024:KHC-D:6324-DB
regard to relationship between the parties. In order to
make it easy to understand the relationship between the
parties, genealogical tree of the family of the parties reads
as under:
(Mayappa) Biru Dhanagar
=Bhagawa (wife)
Siddu Laxman
(Gangubai) wife
(Laxmibai) (Laxmibai)
wife (1) wife (2)
(Appa)
Tarabai Hirabai (Sushila)
(D-1) (D-2)
Shantadevi
(D-3)
(Birandra) (Sonabai) Chandrabai Sundrabi Indrabai Mayawwa
Died issuless (P-4) (P-5) (P-6) (P-7)
Shakuntala
(P-1)
Prashant Sukumar
(P-2) (P-3)
13. There are four items in 'A' Schedule properties
and three items in 'B' Schedule properties. 'A' Schedule
properties consists of agricultural land and there is no
- 13 -
NC: 2024:KHC-D:6324-DB
dispute with regard to item No.4 of the schedule property
is concerned as the said property is ancestral property and
the same was admitted by the parties. However, the
dispute is only with regard to items No.1 to 3 of 'A'
schedule properties. It is the case of the plaintiffs that as
there was no partition between the branches of family
members of Siddu and Laxman and therefore, item Nos.1
to 3 of 'A' Schedule properties has to be considered as
joint family properties. On the other hand, the defendants
urged that as the revenue records stand in the name of
Smt. Laxmibai and these item Nos.1 to 3 of 'A' Schedule
properties are the 'japti sanadi inam' properties and as the
said properties have been retained by Siddu as per RTC
extracts produced at Ex.D.15 and Ex.D.6 and therefore, it
is the case of the defendants that after the demise of
Siddu, the same shall be devolved amongst the children of
Siddu. In the light of the said aspects, on a careful
examination of the findings recorded by the Trial Court
and the oral evidence adduced by the parties, particularly,
- D.W.1 in her cross-examination admits that there is no
- 14 -
NC: 2024:KHC-D:6324-DB
partition in the joint family properties. In this regard, it is
relevant to extract the evidence of D.W.1, dated
22.08.2019, which reads as under:
".........²zÀÄÝ vÀ£Àß fëvÀ PÁ®zÀ°è ªÁ¢AiÀÄjUÉ zÁªÁ D¹ÛUÀ¼À ¥ÉÊQ
MAzÀÄ d«ÄãÀ£ÀÄß fêÀ£ÁA±ÀPÁÌV PÉÆnÖzÀÝgÀÄ C£ÀÄߪÀÅzÀÄ ¤d.
DzÁzÀ£ÀAvÀgÀ £ÀªÀÄä ªÀÄvÀÄÛ ªÁ¢AiÀÄgÀ £ÀqÀÄªÉ ªÁnß DV®è"
(Emphasis supplied)
14. Though the defendants have pleaded that item
Nos.1 to 3 of 'A' Schedule properties are regranted lands
in favour of Smt. Laxmibai and she has undertaken to pay
the assessment made thereunder, however, the
defendants have failed to establish that the said properties
has to be considered as self-acquired properties of
Smt. Laxmibai. In this regard, it is relevant to deduce the
law declared by the Division Bench of this Court in the
case of Bhimappa Ramappa Ghasti Vs. Arjan Laxman
Ghasti2. wherein it is held that, after the abolition of the
village office and resumption of the land, it becomes a
ryotwari land only on regrant and as such, it would be
ILR 1992 KAR 3594
- 15 -
NC: 2024:KHC-D:6324-DB
released from the nature of its impartibility and becomes
available for partition. The said declaration of law made by
this Court makes it clear that the properties inherited by
virtue of partition or in the absence of such partition by
the children of the original inamdar, the said properties
have to be considered as joint family properties of the
children of occupant. In that view of the matter, taking
into consideration the finding recorded by the Trial Court,
mere entering of the name of Smt.Laxmibai in the revenue
record does not confer any title to Smt.Laxmibai unless
the said Smt.Laxmibai establishes that these properties
are acquired through her own earnings or by virtue of any
conveyance said to have been made in her name. It has
also come in evidence that, late Mayappa was cultivating
the land and after his demise, both Siddu and Laxman
were in cultivation of the same. In that view of the matter
taking into consideration, the well-reasoned judgment
passed by the Trial Court, we are of the view that, merely
the fact that parties have been in separate possession and
enjoyment of properties would not by itself lead to an
- 16 -
NC: 2024:KHC-D:6324-DB
inference that Item Nos.1 to 3 is not the joint family
property. In that view of the matter, we do not find any
material irregularity in the judgment and decree passed by
the Trial Court and the defendants have failed to establish
the fact that the schedule properties are self-acquired
properties of Siddu and Laxmibai as contended in the
written statement, despite it is admitted by D.W.1 that
there is no partition effected between both the branches of
Siddu and Laxman.
15. In the light of the submission made by the
learned counsel appearing for the appellants with regard
to Ex.D.28 and D.31, wherein the Tahasildar had given a
report in respect of the subject matter of the suit
mentioning the name of Smt. Laxmibai. However, nothing
is stated in the aforementioned documents, how
Smt. Laxmibai has acquired the properties in question. In
that view of the matter, mere mentioning of the name of
Laxmibai in the revenue records, does not confer any
exclusive right or title in respect of the said property to
- 17 -
NC: 2024:KHC-D:6324-DB
the branch of Siddu, in the absence of the partition having
been effected between the branch of Siddu and Laxman
and further, it is not disputed by both the parties that the
land in question is a inam land and therefore, both the
plaintiffs and defendants are entitled for inheriting the said
properties. In the backdrop of these aspects, Section 14 of
the Hindu Succession Act cannot be made applicable to the
case on hand.
Therefore, the points for determination referred to
above favour the plaintiffs and as such, we do not find any
merit in the appeal. Accordingly, appeal fails and is hereby
dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
YAN,KMS
