Karnataka High Court
Akkamahadevi vs Shri.Mallikarjun on 15 April, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:6385
RSA No. 100770 of 2016
C/W RSA No. 100845 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 100770 OF 2016 (PAR)
C/W
REGULAR SECOND APPEAL NO. 100845 OF 2016
IN RSA NO.100770/2016
BETWEEN:
AKKAMAHADEVI W/O. BASAVANNEPPA BABALI,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: BASAPUR, TQ: BAILHONGAL - 590001
...APPELLANT
(BY SRI GIRISH S. HIREMATH, ADVOCATE)
AND:
1. MALLIKARJUN GANGAPPA TURUMURI
SINCE DECEASED BY HIS LRS.
1A. SHANTA W/O. MALLIKARJUN TURUMURI,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O: NO. 587/13/6, K.C.NAGAR,
1ST CROSS, BAILHONGAL, (SAMPGAON),
BELAGAVI - 591102.
Digitally signed
by SUJATA 1B. GANGADHAR S/O. MALLIKARJUN TURUMURI,
SUBHASH
PAMMAR AGE: 46 YEARS, OCC: SERVICE,
Location: HIGH R/O: PLOT NO.406, SCHEME NO.40,
COURT OF MURULIDHAR COLONY, SECOND STAGE,
KARNATAKA HANUMAN NAGAR, BELAGAVI - 590001.
1C. VEERENDRA S/O. MALLIKARJUN TURUMURI,
AGE: 43 YEARS, OCC: SERVICE,
R/O: 002, SRIYA RESIDENCY
VARADARAJ LAYOUT, AMRUTHAHALLI,
BENGALURU NORTH, BENGALURU - 560092
2. SHEKHAR BASAPPA TURUMARI,
AGE: 57 YEARS, OCC: SERVICE,
R/O: GANDHI NAGAR, BELAGAVI
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NC: 2024:KHC-D:6385
RSA No. 100770 of 2016
C/W RSA No. 100845 of 2016
3. MURGEPPA BASAPPA TURUMURI,
AGE: 56 YEARS, OCC: SERVICE,
R/O: PWD QUARTERS,
RANEBENNUR, BELAGAVI.
4. SUMANGALA UMESH ETTINMANI,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O: SADASHIV NAGAR, BELAGAVI.
(SINCE DECEASED BY L.RS.)
4.A) SHRI. RAJENDRA UMAKHANT YATTINAMANI,
AGE: 55 YEARS, OCC: BANK WORKER,
R/O: PLOT NO.23, 9TH CROSS,
SADASHIV NAGAR, BELAGAVI - 59001.
4.B) SHRI. GIRISH UMAKHANT YATTINAMANI,
AGE: 52 YEARS, OCC: SERVICE,
R/O: PLOT NO.23, 9TH CROSS,
SADASHIV NAGAR, BELAGAVI - 59001
4.C) SMT. ARATI BASAVRAJ MUGALIHAL,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
R/O: H.NO.1360, HUDLI,
TAL & DIST. BELAGAVI- 591346.
5. SAROJINI SHIVRAYAPPA TOGAGER,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O: KAVATAGAMATH NAGAR,
CHIKODI, DIST: BELAGAVI.
6. JAYASHREE MAHADEVAPPA KORABU,
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O: MANGAVATI,
TQ: ATHANI, DIST: BELAGAVI
7. PRABHAVATI BALAPPA BELLIKOPPA
@ TURAMARI
AGE: 30 YEARS, OCC: HOUSEHOLD,
R/O: MAMADAPUR PRIMARY SCHOOL,
SAUDATTI, DIST: BELAGAVI.
...RESPONDENTS
(BY SRI SANGRAM S. KULKARNI, ADVOCATE FOR R1(A TO C);
SRI LAXMAN T. MANTAGANI, ADVOCATE FOR R3, R2, R4(A) TO (C),
R5, R6 AND R7)
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NC: 2024:KHC-D:6385
RSA No. 100770 of 2016
C/W RSA No. 100845 of 2016
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 04.08.2016 PASSED IN
R.A.NO.12/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE,
BAILHONGAL, AND THE JUDGMENT AND DECREE DATED
28.01.2015, PASSED IN O.S.NO.92/2007 ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST
CLASS, BAILHONGAL AND ETC.,.
IN RSA NO.100845/2016
BETWEEN:
1. MALLIKARJUN GANGAPPA TURMARI,
SINCE DECEASED BY HIS LRS.
1A. SHANTA W/O. MALLIKARJUN TURUMARI,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O: NO. 587/13/6, K.C.NAGAR,
1ST CROSS, BAILHONGAL, (SAMPGAON),
BELAGAVI - 591102.
1B. GANGADHAR S/O. MALLIKARJUN TURUMURI,
AGE: 46 YEARS, OCC: SERVICE,
R/O: PLOT NO.406, SCHEME NO.40,
MURULIDHAR COLONY, SECOND STAGE,
HANUMAN NAGAR, BELAGAVI - 590001.
1C. VEERENDRA S/O. MALLIKARJUN TURUMURI,
AGE: 43 YEARS, OCC: SERVICE,
R/O: 002, SRIYA RESIDENCY
VARADARAJ LAYOUT,
BENGALURU NORTH, BENGALURU - 560092
...APPELLANTS
(BY SRI SANGRAM S. KULKARNI, ADVOCATE)
AND:
1. AKKAMAHADEVI
W/O. BASAVANNEPPA BABALI,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: BASAPUR, TQ: BAILHOPNGAL.
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NC: 2024:KHC-D:6385
RSA No. 100770 of 2016
C/W RSA No. 100845 of 2016
2. SHEKHAR BASAPPA TURUMARI,
AGE: 57 YEARS, OCC: SERVICE,
R/O: GANDHI NAGAR, BELAGAVI
3. MURGEPPA BASAPPA TURMURI,
AGE: 56 YEARS, OCC: SERVICE,
R/O: PWD QUARTERS, RANEBENNUR.
4. SUMANGALAL UMESH ETTINMANI,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O: SADASHIV NAGAR, BELAGAVI.
5. SAROJINI SHIVRAYAPPA TOGAGER,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O: KAVATAGAMATH NAGAR,
CHIKODI, DIST: BELAGAVI.
6. JAYASHREE MAHADEVAPPA KORABU,
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O: MANGAVATI,
TQ: ATHANI, DIST: BELAGAVI
7. PRABHAVATI BALAPPA BELLIKOPPA
@ TURAMARI
AGE: 30 YEARS, OCC: HOUSEHOLD,
R/O: MAMADAPUR PRIMARY SCHOOL,
SAUDATTI, DIST: BELAGAVI.
...RESPONDENTS
(BY SRI.GIRISH S. HIREMATH, ADVOCATE FOR R1;
SRI LAXMAN T. MANTAGANI, ADVOCATE FOR R2 TO R7 AND R4(A)
TO (C).
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 READ WITH ORDER XLII RULE 1 OF THE CODE OF CIVIL
PROCEDURE, 1908, PRAYING TO MODIFY THE JUDGMENT AND
DECREE DATED 04.08.2016 PASSED IN R.A.NO.12/2015 ON THE
FILE OF THE SENIOR CIVIL JUDGE, BAILHONGAL, AND TO DECLARE
THAT THE SALE DEED EXECUTED BY THE PLAINTIFF RELATING TO 01
ACRE 18GUNTAS OUT OF R.S.NO.179/1 DATED 05.04.2007 IS LEGAL
AND BINDING ON THE PLAINTIFF BY ANSWERING THE SUBSTANTIAL
QUESTIONS OF LAW IN FAVOUR OF THE APPELLANT/DEFENDANT
NO.1, AND ETC.,.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 100770 of 2016
C/W RSA No. 100845 of 2016
JUDGMENT
Both these appeals are filed challenging the
judgment and decree dated 04.08.2016, passed in
R.A.No.12/2015, by the Senior Civil Judge, Bailhongal, and
the judgment and decree dated 28.01.2015, passed in
O.S.No.92/2007, by the Addl. Civil Judge and JMFC,
Bailhongal.
2. The appeal in RSA No.100770/2016 is filed by
the plaintiff for claiming 1/3rd share in the suit schedule
properties.
3. The appeal in RSA No.100845/2016 is filed by
defendant No.1 questioning holding that the sale deed
executed by plaintiff is valid only to an extent of 1/9th
share, but it ought to have been 1/3rd share in
R.S.No.179/1.
4. For the purpose of convenience, ranking of the
parties is referred to as per their status before the trial
Court.
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5. Brief facts. The plaintiff and defendants No.1
and 2 are sister and brothers. One Gangappa is the
original propositus. The plaintiff and defendants No.1 and
2 are his children. The status of the family as joint family
and the suit schedule properties are ancestral and joint
family properties is not disputed.
6. The plaintiff has filed the suit for partition
claiming her 1/3rd share in the suit schedule properties.
But the trial Court has granted 1/9th share, which is
confirmed by the first appellate Court. Therefore, the
plaintiff has filed RSA No.100770/2016 for claiming 1/3rd
share as per the judgment of the Hon'ble Supreme Court
in the case of Vineeta Sharma vs. Rakesh Sharma and
others reported in (2020) 9 SCC 1.
7. Defendant No.1 has preferred the second
appeal in RSA No.100845/2016 on the ground that
defendant No.1 being purchaser of land bearing
R.S.No.179/1 is entitled for 1/3rd share in the suit land of
the plaintiff as the plaintiff has executed registered sale
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deed on 05.04.2007 in respect of the land measuring 01
acre 18 guntas out of 04 acres 24 guntas in R.S.No.179/1.
8. For considering these two appeals, the following
substantial questions of law would arise.
i) Whether, under the facts and
circumstances involved in the case, both
the trial Court and the first appellate Court
are justified in granting 1/9th share to the
plaintiff contrary to the principle of law laid
down by the Hon'ble Supreme Court in the
case of Vineeta Sharma (supra)?
ii) Whether, under the facts and
circumstances involved in the case,
defendant No.1 is entitled for 1/3rd share
in the suit schedule land bearing
guntas purchased under the registered
sale deed dated 05.04.2007?
9. As discussed above, the plaintiff and defendants
No.1 and 2 are coparceners. The status as joint family and
the suit schedule lands are joint family and ancestral
properties are not disputed. Both the trial Court and the
first appellate Court have committed error in granting
decree of 1/9th share to the plaintiff which is contrary to
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the principle of law laid down by the Hon'ble Supreme
Court in the case of Vineeta Sharma (supra).
10. The plaintiff being coparcener is entitled for
equal share as that of the sons. Therefore the plaintiff is
entitled for 1/3rd share in all the suit schedule properties
including the property bearing R.S.No.179/1 which is sold
to defendant No.1. In respect of the land bearing
R.S.No.179/1 to the extent of 01 acre 18 guntas, which is
sold out by the plaintiff to defendant No.1 is binding on
the plaintiff. Therefore defendant No.1 is entitled for 1/3rd
share in all the suit schedule properties including the
property which has been sold to defendant No.1.
Accordingly I answer the substantial question of law No.1
in the negative and substantial question of law No.2 in the
affirmative. Therefore the judgment and decree passed by
both the trial Court and the first appellate Court are liable
to be modified. Hence both the appeals are liable to be
allowed by modifying the judgment and decree passed by
both the Courts. Hence I proceed to pass the following:
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ORDER
i) Both the regular second appeals are allowed.
ii) The judgment and decree dated 04.08.2016,
passed in R.A.No.12/2015, by the Senior Civil Judge,
Bailhongal, and the judgment and decree dated
28.01.2015, passed in O.S.No.92/2007, by the Addl. Civil
Judge and JMFC, Bailhongal, are hereby modified to the
extent that the plaintiff and defendants No.1 and 2 are
entitled for 1/3rd share each in the suit schedule properties
including the suit schedule land bearing R.S.No.179/1.
iii) The sale deed executed by the plaintiff in favour
of defendant No.1 dated 05.04.2007 is binding on the
plaintiff to the extent of 01 acre 18 guntas of land out of
04 acres 24 guntas in R.S.No.179/1.
iv) The Sub-Registrar, Bailhongal, is directed to
register the sale deed executed by plaintiff in favour of
defendant No.1 relating to the land measuring 01 acre 18
gutnas, in Sy.No.179/1, situated at Bailhongal.
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v) Draw decree accordingly.
vi) No order as to costs.
Sd/-
JUDGE
MRK
CT:ANB
