Karnataka High Court
Kalavati W/O Rajkumar (D/Osiddappa) vs Mahadappa And Ors on 1 August, 2024
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RFA No. 200210 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 200210 OF 2019 (PAR)
BETWEEN:
KALAVATI W/O RAJKUMAR (D/O SIDDAPPA),
AGED ABOUT 33 YEARS,
OCC: AGRI., & HOUSEHOLD,
R/O. PHATTEHPUR, TQ. & DIST. BIDAR.
...APPELLANT
(BY SRI RAVI B. PATIL, ADVOCATE)
AND:
1. MAHADAPPA S/O LATE SHANTAPPA,
AGED ABOUT 78 YEARS, OCC: AGRICULTURE,
Digitally signed R/O: DADDAPUR,
by RENUKA
TQ. & DIST. BIDAR-585401.
Location: HIGH
COURT OF
KARNATAKA 2. SIDDAPPA S/O LATE SHANTAPPA BIRADAR,
AGED ABOUT 68 YEARS, OCC: AGRICULTURE,
R/O. DADDAPUR,
TQ. & DIST. BIDAR-585401.
3. DATTATRI S/O MAHADAPPA BIRADAR
AGED ABOUT 31 YEARS, OCC: AGRICULTURE,
R/O. DADDAPUR,
TQ. & DIST. BIDAR-585401.
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RFA No. 200210 of 2019
4. SHANKER S/O MAHADAPPA BIRADAR,
AGED ABOUT 53 YEARS, OCC: AGRICULTURE,
R/O. DADDAPUR, TQ. & DIST. BIDAR-585401.
5. GANGSHETTY S/O MAHADAPPA BIRADAR,
AGED ABOUT 33 YEARS, OCC: AGRICULTURE,
R/O. DADDAPUR, TQ. & DIST. BIDAR-585401.
...RESPONDENTS
(BY SRI R.S. SIDHAPURKAR, ADVOCATE FOR R1 TO R5)
THIS RFA IS FILED UNDER SECTION 96 OF CPC, PRAYING
TO CALL FOR THE RECORDS ON THE FILE OF II ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC AT BIDAR IN
O.S.NO.149/2016 CULMINATING IN THE JUDGMENT AND
DECREE IMPUGNED. SET ASIDE THE JUDGMENT AND DECREE
PASSED BY THE COURT OF II ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC AT BIDAR IN O.S.NO.149/2016, DATED
28.08.2019 AND CONSEQUENTIALLY TO DECREE THE SUIT OF
THE APPELLANT/PLAINTIFF IN ENTIRETY AS PRAYED FOR.
PASS AN ORDER TO COSTS OF THE PRESENT APPEAL.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
The plaintiff is in appeal challenging the decree
disallowing the claim of the plaintiff for partition in respect
of all the properties which are described in the plaint
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schedule. In terms of the impugned judgment and decree,
the trial Court has granted ½ share in the suit schedule
property bearing Survey No.19/B measuring 1 acre 20
guntas, situated at Doddapur village and Survey No.15/3
measuring 1 acre 5 guntas, situated in Doddapur village
and house No.17/1, taluk Bidar.
2. Sri Ravi B. Patil, learned counsel appearing for
the appellant taking the Court through the facts of the
case submitted that one Shantappa was the propositus
and he had two sons namely Mahadappa and Siddappa.
Mahadappa has three sons namely Dattatre, Shankar and
Gangashetty. Siddappa has only one daughter Kalavati.
The said Kalavati is the Plaintiff in this case. Mahadappa is
defendant No.1 and Dattatre, Shankar and Gangashetty
are defendants No.3, 4 and 5 respectively. It is also his
contention that after the demise of Shantappa in the year
1993 the properties devolved upon his two sons
Mahadappa and Siddappa jointly and thereafter, there is
no partition between Mahadappa and Siddappa. However,
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Siddappa out of 5 acres of land in Survey No.19 has sold 4
acres under a registered sale deed dated 13.05.2005.
Thus he would contend that excluding those 4 acres the
plaintiff is entitled to share in father's ½ share which
father inherited after the demise of her grand father
Shantappa. It is also his contention that there was no
partition between two brothers namely Mahadappa and
Siddappa. However, without there being a partition an
erroneous mutation entry is certified recording only 5
acres 20 guntas against the name of her father in Survey
No.19 and 2 acres 9 guntas in Survey No.15/3. On the
contrary, a larger extent of 10 acres is shown against the
name of Mahadappa in the records of right which is not
reflecting the devolution of equal share in the name of
Mahadappa and Siddappa. Thus he would contend that
the daughter filed a partition and she is entitled to claim ½
share which is inherited by her father.
3. The trial Court has dismissed the suit in respect
of portion of the property on the premise that there is
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already a partition between the Mahadappa and Siddappa.
The trial Court did not accept the contention that
Mahadappa and Siddappa still jointly owned the properties
inherited after the death of Siddappa.
4. This Court has perused the records and
considered the contentions raised. The following point
arises for consideration:
Whether the trial Court is justified in
dismissing the suit in respect of portion of the
property on the premise that there is already a
partition between Mahadappa and Siddappa.
5. Shantappa the propositus died on 30.06.1994.
Admittedly, he owned two survey numbers namely Survey
No.19 and Survey No.15/3. Survey No.19 measured 15
acres, 20 gutnas and survey No.15/3 measures entire 2
acres, 9 guntas and entire 2 acres 9 guntas is reflected in
the name of Siddappa the second son of Shantappa and
out of 15 acres 20 guntas, 5 acres in survey No.19 is
reflected in the name of Siddappa. Thus in all 7 acres 9
guntas stood in the name of Siddappa and 10 acres stood
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in the name of Mahadappa. Referring to this discrepancy,
learned counsel Sri Ravi B Patil would contend that the
partition has not taken place and had there been a
partition, the properties would have been equally divided.
It is urged that even the mutation entry does not reflect
that there is a partition in the family.
6. The trial Court has noticed that Mahadappa has
consented to sale of 4 acres of land in Survey No.19, by
Siddappa in favour of Nanubai. And noticing this fact and
the recital in the sale deed that the property sold is the
property of Siddappa, has concluded that there is already
a partition in the family of Siddappa and Mahadappa and
accordingly, the trial Court had declined to grant partition
in respect of the remaining properties standing in the
name of Madappa and has granted partition only in respect
of the properties standing in the name of Siddappa.
7. Though Ex.P5 does not reveal that there was a
partition in the family after the death of Shantappa, what
is to be noticed is; the name of Mahadappa is entered in
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respect of 10 acres of land and name of Siddappa was
entered in respect of 5 acres in Survey No.19 and 2 acres
9 guntas in Survey No.15. Though by this separate entry
itself one cannot conclude that there was a partition in the
family as alleged by the defendants, what is to be noticed
is Siddappa has consented for sale of 4 acres of land out of
5 acres standing in the name of Siddappa and sale has
taken place in 2005. The suit is filed in the year 2016. And
it is also relevant to note that the plaintiff has not
challenged the sale deed. If there was no partition in the
family, Mahadappa could not have consented to the sale
deed which contains the recital that the property is the
exclusive property of Siddappa which is one fact which is
taken into consideration by the trial Court the properties
are not the joint properties of Siddappa and Mahadappa.
8. Learned counsel Sri Ravi B Patil further
submitted that evidence of the father of Siddappa DW2
would indicate that the properties were jointly cultivated
by Siddappa and Mahadappa and there was no partition.
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On going through the evidence, it is noticed that the
Mahadappa himself has admitted that 4 acres is given to
him after the death of the father though there are
statements which would indicate that Mahadappa and
Siddappa are cultivating the property together and living
together. That itself cannot be construed to hold that
there is no partition in the family of Madappa and
Siddappa given the fact that the records stood separately
in the name of Mahadappa and Siddappa since 1994 and
at no point of time the records stood jointly in the name of
Mahadappa and Siddappa after the death of father of
Mahadappa and Siddappa.
9. The trial Court has granted ½ share in 1 acre 5
guntas in Survey No.15/3. It is brought to the notice of
this Court that in Survey No.15/3, Siddappa had 2 acres 9
guntas as such, the decree should have been decreed for
½ share in respect of 2 acre 9 guntas.
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10. That apart, this Court has also noticed that it is
not the case of the plaintiff that Shantappa inherited the
property from his ancestors. The plaint averment would
only say that Shantappa was the ancestral head of the
family. Under these circumstances, the Court is to
presume that the properties in question were the self
acquired properties of Shantappa. Shantappa died in the
year 1993. On his death the property would devolve upon
his two sons Mahadappa and Siddappa under Section 8 of
Hindu Succession Act. That being the case the plaintiff
does not acquire any right by birth in the family and as
such, she cannot maintain a suit for partition when her
father is alive. Nevertheless, the father against whom the
decree is passed has not questioned the decree. It is also
noticed that she is the only daughter of Siddappa. Under
these circumstances, this Court does not find any reason
to interfere with the decree for partition granted in favour
of the plaintiff in respect of 1 acre in Survey No.19 and 2
acre 19 guntas in survey No.15.
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11. Accordingly, the appeal is allowed in part. The
plaintiff is entitled to ½ share in survey No.19, measuring
1 acre 20 guntas and ½ share in survey No.15/1
measuring 2 acres 19 guntas.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
CHS
CT:PK
