Karnataka High Court
Praveenkumar S/O Basalingappa ... vs Smt Kasturi W/O Channappa Pujar on 2 April, 2024
-1-
NC: 2024:KHC-D:6138-DB
RFA No. 100468 of 2023
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. 100468 OF 2023
(PAR/POS)
BETWEEN:
1. PRAVEENKUMAR
S/O. BASALINGAPPA KAPPATNAVAR,
AGED 30 YEARS,
OCC: PRIVATE JOB,
R/O: SHIRUNJA,
TQ: GADAG, DIST: GADAG.
2. SMT. ROMAXI
W/O. BASALINGAPPA KAPPATNAVAR,
AGED 53 YEARS,
SHIVAKUMAR OCC: HOUSE HOLD WORK,
HIREMATH
R/O: SHIRUNJA,
Location: HIGH
COURT OF
KARNATAKA
TQ: GADAG, DIST: GADAG.
DHARWAD BENCH
Date: 2024.04.15
13:09:27 +0530
3. SMT. SHARADA @ RAJESHWARI
W/O. RAMANAGOUDA MUDIGOUDRA,
AGED 46 YEARS,
OCC: HOUSEHOLD WORK,
R/O: TEJASWI NAGAR,
C/O. MARCHARADDI,
H.NO.118, DHARWAD,
TQ AND DIST: DHARWAD.
...APPELLANTS
(BY SRI.J.S.SHETTY, ADVOCATE)
-2-
NC: 2024:KHC-D:6138-DB
RFA No. 100468 of 2023
AND:
1. SMT. KASTURI
W/O. CHANNAPPA PUJAR,
AGED 55 YEARS,
OCC: HOUSEHOLD WORK,
R/O: HALYAL, TQ: HUBBALLI ,
DIST: DHARWAD.
2. SMT. MINAXI
W/O. YALLANAGOUDA NINGANAGOUDRA,
AGED 51 YEARS,
OCC: HOUSEHOLD WORK,
R/O: BATTUR,
TQ: LAXMESHWAR,
DIST: GADAG.
3. SMT. REKHA
W/O. GULAPPPA NANDIHALLI,
AGED 43 YEARS,
OCC: HOUSEHOLD WORK,
R/O: MAROL, TQ: HAVERI,
DIST: HAVERI.
...RESPONDENTS
(BY SRI.S.B.DODDAGOUDAR, ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 01.08.2023
PASSED IN O.S.NO.95/2022 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
KALAGHATAGI, DECREEING THE SUIT FILED FOR PARTITION
AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
E.S.INDIRESH, J., DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC-D:6138-DB
RFA No. 100468 of 2023
JUDGMENT
This First Appeal is preferred by defendant Nos.1 to 3
challenging the judgment and decree dated 01.08.2023 passed
in Original Suit No.95 of 2022 on the file of the Senior Civil
Judge and JMFC, Kalaghatagi (for short, hereinafter referred to
as 'Trial Court'), decreeing the suit of the plaintiffs.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. The plaint averments are that, the original
propositus-Basavaneppa and his wife Sulochana died leaving
behind the plaintiffs and defendant Nos.2 and 3 to succeed to
the properties left behind them. It is the case of the plaintiffs
that, apart from other schedule properties, another land
property bearing Sy.No.61/1 is in joint possession and
enjoyment of the parties. It is further stated in the plaint that,
land bearing Sy.No.61/1, measuring 7 acres was sold for family
necessity at the instance of their father-Basavaneppa. It is also
stated in the plaint that, though the suit schedule properties
are the joint family properties, fraudulently the defendants got
executed the Gift Deed in respect of the Item No.1(a) of the
NC: 2024:KHC-D:6138-DB
schedule properties in favour of the defendant No.1 without
the knowledge of the plaintiffs and thereafter, the plaintiffs
came to know about the said Gift Deed said to have been
executed by their mother-Sulochana in favour of the defendant
No.1. Feeling aggrieved by the same, the plaintiffs have filed
OS No.95 of 2022 before the trial Court.
4. After service of summons, the defendants entered
appearance and filed written statement denying the averments
made in the plaint. It is the contention of the defendants that
the suit schedule properties are not the ancestral properties
and further contended that, the property bearing Sy.No.61/1
stands in the name of Basavaneppa, who died on 03.05.2007
and after his demise, plaintiffs and defendant Nos. 2 and 3 had
executed Relinquish Deed dated 14.09.2007 in favour of their
mother-Sulochana, and therefore, it is contended that, mother
of the plaintiffs-Sulochana executed registered Gift Deed dated
14.09.2012 in favour of the defendant No.1 and therefore,
defendant No.1 sought for dismissal of the suit. It is also
contended by the defendants that, as the plaintiffs have
relinquished their right in favour of the remaining properties
NC: 2024:KHC-D:6138-DB
mentioned in the schedule properties and accordingly sought
for dismissal of the suit.
5. The Trial Court, based on the pleadings on record, has
formulated following issues for its consideration:
1. Whether the plaintiffs prove that they and
defendants constitute joint family ?
2. Whether the plaintiffs prove that the schedule
properties are the joint family properties ?
3. Whether the defendants No.1 to 3 prove that
plaintiffs and defendant No.2 and 3 have
relinquished their rights in the schedule
properties in favour of their mother as
contended in the written statement ?
4. Whether the defendant No.1 proves that he
acquired schedule properties by virtue of the
alleged gift deed executed by Smt. Sulochana
dated 14.09.2012 ?
5. Whether the plaintiffs are entitled for the relief
as sought for ?
6. What order or decree ?
6. In order to establish their case, plaintiff No.3 was
examined himself as PW1 and produced 33 documents, which
were marked as Exhibits P1 to P33. On the other hand,
NC: 2024:KHC-D:6138-DB
defendants examined six witnesses as DW1 to DW6 and
produced 04 documents, which were marked as Exhibits D1 to
D4.
7. The Trial Court, after considering the material on
record, by its judgment and decree dated 01.08.2023 decreed
the suit, holding that the plaintiffs and defendant Nos.2 and 3
are entitled for 1/5th share each in the suit schedule properties.
Being aggrieved by the same, defendants preferred this
Regular First Appeal.
8. We have heard Sri J.S.Shetty, learned counsel
appearing for appellants and Sri S.B.Doddagoudar, learned
counsel appearing for respondents 1 to 3.
9. Sri J.S.Shetty, learned counsel appearing for
appellants contended that the suit itself is not maintainable on
the ground that, the plaintiffs have not included the entire joint
family properties, particularly, property referred to as
Sy.No.61/1, measuring 7 acres. It is further contended that,
the plaintiffs cannot maintain the suit in respect of the property
mentioned in the Gift Deed, as the said registered Gift Deed
was executed on 14.09.2012 and therefore, in view of Article
NC: 2024:KHC-D:6138-DB
58 of the Limitation Act, the plaintiffs ought to have filed the
suit within 12 years and accordingly, sought for setting aside
the judgment and decree passed by the trial Court on the
ground that, the suit is barred by time. He also contended that,
as the plaintiffs and defendant Nos.2 and 3 have executed the
Relinquishment Deed in favour of the their mother-Sulochana in
respect of the property said to have been gifted in favour of the
defendant No.1 and therefore, the plaintiffs cannot challenge
the Gift Deed and seek for partition in the said property and in
this regard, he placed reliance on the judgment of the Hon'ble
Supreme Court in the case of Sri M.R.Vinoda vs.
M.S.Susheelamma (dead) by legal representatives and
others reported in (2021) 20 SCC 180.
10. Per contra, Sri S.B.Doddagoudar, learned counsel
appearing for respondents 1 to 3 supported the impugned
judgment and decree passed by the Trial Court and further
argued that, defendant No.1 was minor as on the date of
execution of the Gift Deed dated 14.09.2012 and therefore, the
said conveyance cannot be accepted. Further he contended
that, the Relinquish Deed, as claimed by the defendant No.1
that, the plaintiffs and defendant Nos. 2 and 3 have executed in
NC: 2024:KHC-D:6138-DB
favour of their mother-Sulochana, is not a registered document
and therefore, same cannot be accepted. Accordingly, he
sought for dismissal of the appeal.
11. Having heard the learned counsel appearing for the
parties and taking into consideration the grounds urged in the
memorandum of appeal, the following points arise for
consideration:
i) Whether the appellant / defendants prove that,
the Relinquishment Deed dated 14.09.2007 said
to have been executed by the plaintiffs and
defendant Nos. 2 and 3 in favour of the their
mother-Sulochana is just and proper ?
ii) Whether the judgment and decree passed by the
trial Court requires interference ?
iii) What order ?
12. Having taken note of the submission made by the
learned counsel appearing for the parties and in order to
understand the relationship between the parties, the
genealogical tree is produced as follows:
NC: 2024:KHC-D:6138-DB
Basavaneppa (Dead)
Sulochana (Wife) (Dead)
Kasturi Romaxi Minaxi Sharada Rekha
(P-1) (D-2) (P-2) (D-3) (P-3)
13. On perusal of the genealogical tree, it is not in
dispute that, Basavaneppaa is the original propositus died on
03.05.2007 leaving behind his wife-Sulochana, plaintiffs and
defendant Nos.2 and 3. Smt Sulochana, died on 11.05.2022.
There are schedule properties. It is the contention of the
defendant/appellants that, land bearing Sy.No.61/1 was not
included in the schedule properties. In this regard, it is
contended by the plaintiffs that the husband of the defendant
No.2-Basavalingappa played fraud and created false documents
and got entered the name of Sulochana in the revenue records
on pretext of raising loan from the bank for the family
necessity. Thereafter, the schedule property was sold as per
registered Sale Deed dated 22.02.2010 vide Ex.P32. It is the
contention of the plaintiffs that, as the said property was sold to
one Smt Geetapriya, W/o.Vijaykumar and therefore, the
plaintiffs have not sought for share in the said property. It is
the case of the plaintiffs that, Sulochana, had executed
- 10 -
NC: 2024:KHC-D:6138-DB
registered Gift Deed dated 14.09.2012 in favour of the
defendant No.1 based on the Relinquishment Deed, dated
14.09.2007, said to have been executed by plaintiffs, defendant
Nos.2 and 3. Undisputably, the said property is the joint family
property and further the perusal of Ex.P26-Relinquishment
Deed, which is a unregistered document and as such, the said
document does not convey the property in question in favour of
Sulochana and being a unregistered Relinquishment Deed dated
14.09.2007, it did not convey right in favour of the transferee
(Sulochana) and therefore, the said document cannot be
considered as valid document under law and in the result, the
gift deed dated 14.09.2012 said to have been executed by Smt.
Sulochana in favour of the defendant No.1 is nullity under law.
In that view of the matter, the judgment of the Hon'ble
Supreme Court referred to by the learned counsel appearing for
the appellants in the case of M.R.Vinoda supra, is not
applicable to the facts of this case as in the said case the
relinquishment deed was registered document and as such, the
argument advanced by the learned counsel appearing for the
appellants cannot be accepted. (See. (2015) 16 SCC 787).
Hence, we are of the opinion that, the trial Court, after
- 11 -
NC: 2024:KHC-D:6138-DB
appreciating the entire material on record, arrived at a just
conclusion that plaintiffs 1 to 3 and defendants 2 and 3 are
entitled for 1/5th share each in the suit schedule properties and
there is no perversity in the judgment and decree passed by the
trial Court. Therefore, the points for determination referred to
above favour the plaintiffs. Accordingly, Regular First Appeal is
dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
SB
