Karnataka High Court
Kumar Vaibhav S/O Bharatesh Padunad vs Bharathesh S/O Annappa Padunad on 2 April, 2024
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RFA No.100245 of 2018
C/W RFA No.100138 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND 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.100245 OF 2018
C/W
REGULAR FIRST APPEAL NO.100138 OF 2024
IN RFA NO. 100245/2018
BETWEEN:
KUMAR VAIBHAV S/O BHARATESH PADUNAD
AGE: 4 YEARS, OCC: NIL,
R/BY HIS MINOR GUARDIAN HIS GRAND MOTHER
SMT. SUMITRA W/O SIDAGONDA BIRADAR PATIL
AGE: 49 YEARS, OCC: HOUSEHOLD
R/O: BASAVA NAGAR, MUDHOL, DIST: BAGALKOT.
...APPELLANT
(BY SRI. SANJAY CHANAL, ADVOCATE)
AND:
1. BHARATHESH S/O ANNAPPA PADUNAD
Digitally signed
by YASHAVANT AGE: 41 YEARS, OCC: DOCTOR,
NARAYANKAR
Location: HIGH
COURT OF
BHARATHESH S/O ANNAPPA PADUNAD
KARNATAKA
R/O: SIDDAPUR, TQ: RAIBAG, DIST: BELAGAVI
NOW AT 12TH FIRST MAIN, 9TH CROSS,
ABBAYYA RADDI LAYOUT KAGGADASAPUR
BENGALURU 560093.
2. KUMAR NIKIL S/O BHARATHESH PADUNAD
AGE: 10 YEARS, OCC: MINOR,
R/BY HIS MINOR GUARDIAN NEXT FRIEND
HIS NATURAL FATHER RESP NO.1
BHARATHESH S/O ANNAPPA PADUNAD
AGE: 41 YEARS, OCC: DOCTOR,
R/O: SIDDAPUR, TQ: RAIBAG, DIST: BELAGAVI
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RFA No.100245 of 2018
C/W RFA No.100138 of 2024
NOW AT: 12TH FIRST MAIN, 9TH CROSS
ABBAYYA RADDI LAYOUT KAGGADASAPUR
BENGALURU 560093.
3. SMT. RAJASHREE W/O BHARATHESH PADUNAD
AGE: 35 YEARS, OCC: HOUSE WORK,
R/O: 12TH FIRST MAIN, 9TH CROSS
ABBAYYA RADDI LAYOUT KAGGADASAPUR
BENGALURU 560093.
4. KUMAR CHIRAYU S/O BHARATHESH PADUNAD
AGE: 4 YEARS, OCC: MINOR,
R/BY HIS MINOR GUARDIAN NEXT FRIEND
HIS NATURAL MOTHER RESP NO.3
SMT. RAJASHREE W/O BHARATHESH PADUNAD
AGE: 35 YEARS, OCC: HOUSE WORK,
R/O: SIDDAPUR, TQ: RAIBAG, DIST: BELAGAVI
NOW AT: 12TH FIRST MAIN, 9TH CROSS
ABBAYYA RADDI LAYOUT,
KAGGADASAPUR, BENGALURU 560093.
...RESPONDENTS
(BY SRI. SHIVARAJ P MUDHOL, ADVOCATE FOR R1 & R3,
R2 MINOR, R/BY R1; R4 MINOR, R/BY R3)
THIS RFA IS FILED UNDER SEC. 96 READ WITH ORDER 41
RULE 1 OF THE CPC., 1908, AGAINST THE JUDGMENT AND DECREE
DTD:04.04.2018 PASSED IN O.S.NO.195/2016 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
RAIBAG, DISMISSING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
IN RFA NO. 100138/2024
BETWEEN:
1. SRI. BHARATESH S/O ANNAPPA PADUNAD
AGE. 47 YEARS, OCC. DOCTOR
R/O. SIDDAPUR TQ. RAIBAG, DIST. BELAGAVI.
NOW R/AT: 12TH FIRST MAIN, 9TH CROSS
ABBAYYA RADDI LAYOUT,
KAGGADASAPUR, BENGALURU-560093.
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RFA No.100245 of 2018
C/W RFA No.100138 of 2024
2. KUMAR NIKHIL S/O BHARATESH PADUNAD
AGE. 16 YEARS, OCC. STUDENT,
12TH FIRST MAIN, 9TH CROSS,
ABBAYYA RADDI LAYOUT KAGGADASAPUR
BENGALURU 560093.
3. KUMAR CHIRAYU S/O BHARATESH PADUNAD
AGE. 10 YEARS, OCC. STUDENT,
12TH FIRST MAIN, 9TH CROSS,
ABBAYYA RADDI LAYOUT
KAGGADASAPUR, BENGALURU 560093.
(APPELLANT NO. 2 & 3 ARE MINORS
R/BY THEIR FATHER APPELLANT NO.1)
...APPELLANTS
(BY SRI. SHIVARAJ P MUDHOL, ADVOCATE)
AND:
1. KUMAR VAIBHAV S/O BHARATESH PADUNAD
AGE. 10 YEARS, OCC. STUDENT
SINCE MINOR R/BY HIS MINOR
GUARDIAN HIS GRANDMOTHER
SMT. SUMITRA W/O SIDAGONDA BIRADARPATIL
AGE. 57 YEARS, OCC. HOUSEHOLD WORK
R/O. BASAVA NAGAR, MUDHOL,
TQ. MUDHOL, DIST. BAGALKOT 560093.
2. SMT RAJASHREE W/O BHARATESH PADUNAD
AGE. 41 YEARS, OCC. HOUSEHOLD WORK
12TH FIRST MAIN, 9TH CROSS,
ABBAYYA RADDI LAYOUT
KAGGADASAPUR, BENGALURU 560093.
...RESPONDENTS
THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 04.04.2018 PASSED IN
O.S.NO.195/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC RAIBAG, DISMISSED THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY,
E.S.INDIRESH, J., DELIVERED THE FOLLOWING:
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RFA No.100245 of 2018
C/W RFA No.100138 of 2024
JUDGMENT
These Regular First Appeals are arising out of the
judgment and decree dated 04.04.2018 in
O.S.No.195/2016 on the file of the Senior Civil Judge and
JMFC, Raibag (for short, hereinafter referred to as 'Trial
Court') dismissing the suit of the plaintiff.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. It is the case of the plaintiff that defendant
No.1 is the father of the plaintiff through his first wife,
deceased-Archana. It is further stated in the plaint that
defendant No.1 married Smt.Rajeshwari after the death of
his first wife-Archana. Plaintiff and defendant No.2 born to
defendant No.1 through deceased-Archana and further
defendant No.4 born to defendant No.1 and defendant
No.2. It is the case of the plaintiff that the suit schedule
properties are the joint family properties of the plaintiff
and defendants and accordingly, as there is no partition in
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the joint family, plaintiff filed O.S.No.195/2016 seeking
partition and separate possession in respect of the suit
schedule properties.
4. After service of notice, the defendants entered
appearance and filed written statement. Defendant No.1
admits the relationship between the parties, however
denied the averments made in the plaint with regard to
acquisition of the properties of late-Archana (mother of
the plaintiff). It is contended by defendant No.1 that the
land bearing Survey No.59/1, measuring 3 acres 34
guntas, situate at Siddapur village, is ancestral property of
plaintiff and defendants and there is no partition in respect
of the said property. It is also contended by defendant
No.1 that he was a doctor by profession and through his
professional income he had purchased the house
properties through his deceased wife-Archana and
therefore, it is contended by defendant No.1 that the
plaintiff has no right seeking partition and separate
possession in respect of the schedule properties. It is also
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contended by defendant No.1 that suit item No.3 property
bearing plot No.883, situate in KHB Colony of Lingapur
village, Anekal Taluk is allotted to defendant No.1 and
therefore, the plaintiff has no right to claim share in the
said property. Accordingly, defendant No.1 sought for
dismissal of the suit.
5. The Trial Court, based on the pleadings on
record, has formulated following issues and additional
issue for its consideration:
Issues
1. Whether the defendant No.1 proves that
his mother-in-law Sumitra has got created
the Hakku Bitta Patra on 03.05.2016 by
assuring him to handover the minor
plaintiff to him?
2. Whether the defendant No.1 further
proves that, his mother-in-law willfully
detained the minor plaintiff with her?
3. Whether the suit is maintainable?
4. Whether the defendant No.1 proves that,
the suit properties are his self acquired
properties?
5. Whether the suit is bad for non-joinder of
necessary parties?
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6. Whether the plaintiff is entitled for the
relief? If so, what is extent?
7. What order?
Additional Issue:
1. Whether the plaintiff proves that, the suit
properties are family properties?
6. In order to establish their case, plaintiffs have
examined five witnesses as PW1 to PW5 and produced six
documents, which were marked as Exhibits P1 to P6. On
the other hand, defendant No.1 was examined as DW1
and produced 18 documents, which were marked as
Exhibits D1 to D18.
7. The Trial Court, after considering the material
on record, by its judgment and decree dated 04.04.2018,
dismissed the suit of the plaintiff. Being aggrieved by the
same, the plaintiff has filed RFA No.100245/2018 and
defendants 1, 2 and 4 have preferred RFA
No.100138/2024. Hence these appeals are placed before
this Court.
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8. We have heard Sri.Sanjay Chanal learned
counsel appearing for appellant; Sri.Shivaraj P Mudhol,
learned counsel appearing for respondents 1 and 3.
9. Sri. Sanjay Chanal, learned counsel appearing
for appellant contended that the finding recorded by the
Trial Court holding that the suit filed by the plaintiff is
premature is not correct as the suit schedule properties
are properties belonging to his deceased mother and
grandfather and accordingly sought for interference by this
Court.
10. Per contra, Sri.Shivaraj P Mudhol, learned
counsel appearing for respondents 1 and 3 contended
that, the finding recorded by the Trial Court is just and
proper and as there is no partition in respect of the
ancestral property of defendant No.1 and that apart, he
pleaded that suit item No.1 and 2 of house properties,
though purchased in the name of first wife-late Archana,
however she was housewife and the entire sale
consideration amount was given by defendant No.1 and
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therefore, he contended that those two properties are the
self-acquired properties of defendant No.1. He further
contended that suit item No.3 was allotted by the
Karnataka House Board to defendant No.1 and therefore,
the same is self-acquired property of defendant No.1 and
accordingly, he submitted that the finding recorded by the
Trial Court that the suit is premature is just and proper.
However insofar as RFA No.100138/2024 is concerned, he
contended that the finding recorded by the Trial Court on
Issue No.4 holding negative is incorrect as the Trial Court
has arrived at a conclusion to dismiss the suit as
premature and therefore, there was no necessity for the
Trial Court for holding that the defendant No.1 has failed
to prove that the suit schedule properties are self-acquired
properties and accordingly, sought for interference by this
Court insofar as finding recorded by the Trial Court on
Issue No.4.
11. Having heard the learned counsel appearing for
the parties and taking into consideration the grounds
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urged in the memorandum of appeal, the following points
arise for consideration:
i. Whether the Trial Court is justified in
holding that the suit is premature?
ii. Whether the finding recorded by the Trial
Court on issue No.4 is just and proper?
iii. Whether the judgment and decree
passed by the Trial Court requires
interference by this Court?
iv. What order?
12. Having taken note of the submission made by
learned counsel appearing for the parties and in order to
understand the relationship between the parties, the
following genealogical tree reads as under:
Bharatesh
(Respondent No.1)
(defendant No.1)
Archana (1st wife) Rajashree (2nd wife) (R3)
died on 26.11.2014
Chirayu (R4)
Nikhil (R2) Vaibhav (Appellant )
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13. Perusal of the genealogical tree would indicate
that defendant No.1 had two wives viz., Smt.Archana
(dead) and Smt.Rajashri (defendant No.3). The plaintiff
and defendant No.2 are born to defendant No.1 through
his first wife Smt-Archana. Defendant No.4 born to
defendant No.1 through his second wife Smt.Rajashri
(defendant No.3). The relationship between the parties is
not disputed by either of the parties. It is the contention of
the plaintiff that the suit schedule properties are the joint
family properties of plaintiff and defendants and
accordingly, sought for devolution of the properties. On
the other hand, defendant No.1 has took up a specific
contention that he being doctor by profession, he had
independent income and through the said income, he
purchased house properties at item No.1 and 2 in the
name of his first wife Smt.Archana. It is also the
contention of defendant No.1 that the land property
bearing Survey No.59/1 measuring 3 acres 34 guntas was
the ancestral property and the same is required to be
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devolved between the coparceners therein and
accordingly, sought for dismissal of the suit.
14. Perusal of the records would indicate that
G&WC 10/2017 is filed before the Trial Court seeking
custody of child and the same was disposed of and against
the said order of dismissal, MFA No.102246/2019 is filed
before this Court and same is pending consideration before
this court.
15. Insofar as the right of the plaintiff seeking
partition and separate possession is concerned,
undoubtedly the land property is the ancestral property of
defendant No.1 and the plaintiff being a coparcener in the
family, consisting of himself and defendant No.1, is
entitled for share in the land property. That apart, item
No.1 and 2 of the house properties are purchased by the
mother of the plaintiff.
16. A perusal of the records would indicate that the
mother of the plaintiff died on 26.11.2014. In that view of
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the matter, the plaintiff being the successor to the
properties in question, insofar as item No.1 and 2 is
concerned, after demise of his mother, is entitled for share
in the said property. In that view of the matter, we are of
the view that the finding recorded by the Trial Court
holding that the suit is premature is misnomer and
contrary to law and the finding recorded by the Trial Court
on issue No.1 to 6 and additional issue is opposed to law
and plaintiff being the member of joint family consisting of
defendant No.1 and other defendants, under Mitakshara
Law, is entitled for share in the properties. In that view of
the matter, the finding recorded by the Trial Court that the
suit is premature cannot be accepted. In that view of the
matter, we are of the view that the learned counsel
appearing for the appellant in RFA No.100245/2018 has
made out a case for interference in this appeal. Hence, it
is a fit case to remand the matter to the Trial Court for
fresh consideration taking into consideration the
observation made above.
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17. As we have arrived at a conclusion that the
plaintiff is having right over the suit schedule properties,
the Trial Court is directed to determine the shares of the
parties accordingly. Insofar as contention raised by the
appellant in RFA No.100138/2024 relating to issue No.4 is
concerned, as we have arrived at a conclusion that the
finding recorded by the Trial Court dismissing the suit of
the plaintiff itself is incorrect and opposed to the tenets of
Mitakshara Law, and as the entire case is remanded to the
Trial Court for fresh consideration, no further orders are
required to be made in RFA No.100138/2024. All the
contentions of the parties are kept open. Needless to say
that in the event if the parties are required to adduce
evidence in the matter, it is open for the parties to do so.
In the result, we pass the following:
ORDER
i) RFA No.100245/2018 is allowed;
ii) RFA No.100138/2024 is disposed of;
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iii) The judgment and decree dated 04.04.2018
in O.S.No.195/2016 on the file of the
Additional Senior Civil Judge and JMFC,
Raibag is set aside and the matter is
remanded to the Trial Court for fresh
consideration in the light of the observation
made above;
iv) In order to avoid further delay in the
matter, as the learned counsel appearing
for the parties represent before this Court,
the parties are directed to appear before
the Trial Court on 27.05.2024 at 11.00 a.m.
without expecting any further notice from
the Trial Court;
v) The parties are also directed to co-operate
for expedite hearing of the matter.
Sd/-
JUDGE
Sd/-
JUDGE
