Karnataka High Court
Smt. Shevanti W/O Bujabali vs Shailadevi W/O Tavanappa Dhupadal on 1 August, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:10892
RSA No. 100337 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 1ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 100337 OF 2024 (PAR/POS-)
BETWEEN:
1. SMT. SHEVANTI @ SHEVANI
W/O BUJABALI BABANNAVAR,
AGE. 54 YEARS,
OCC. HOUSE HOLD WORK,
R/O TAMADADDI, TALUK.
RABAKAVI-BANAHATTI,
DIST. BAGALKOT-591301.
2. MALLAPPA S/O BUJABALI BABANNAVAR
AGE. 32 YEARS, OCC. AGRICULTURE,
R/O TAMADADDI VILLAGE,
Digitally signed TALUK. RABAKAVI-BANAHATTI,
by DIST. BAGALKOT-591301.
YASHAVANT
NARAYANKAR ...APPELLANTS
Location: HIGH
COURT OF (BY SRI SHIVARAJ P. MUDHOL, ADVOCATE
KARNATAKA SRI SHIVANAND MALASHETTI
DHARWAD
BENCH & SANJANA S. MUDHOL, ADVOCATES)
DHARWAD
AND:
1. SHAILADEVI W/O TAVANAPPA DHUPADAL,
AGE. 62 YEARS, OCC. HOUSE HOLD WORK,
R/O. HALINGALI,
TQ.RABAKAVI-BANAHATTI,
DIST. BAGALKOT-591302.
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NC: 2024:KHC-D:10892
RSA No. 100337 of 2024
2. SMT. SHANTAWWA
W/O DASHARATH NARASAGOND
AGE. 60 YEARS, OCC. AGRICULTURE,
R/O. ALGUR VILLAGE, TQ. JAMKHANDI,
DIST. BAGALKOT-591302.
3. SMT. RAJESHRI
W/O APPASAB DHANAWAD,
AGE. 52 YEARS, OCC. AGRICULTURE,
R/O. TERDAL,
TQ. RABAKAVI-BANAHATTI,
DIST. BAGALKOT-591302.
4. SMT. SUNANDA D/O MADHAVARAO,
NANDEPPANAVAR, AGE. 47 YEARS,
OCC. HOUSE HOLD WORK,
R/O HALINGALI,
TQ.RABAKAVI-BANAHATTI,
DIST. BAGALKOT-591302.
...RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE
IMPUGNED JUDGMENT AND DECREE DATED 08.02.2024 IN
R.A.NO.34/2020 PASSED BY THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BAGALKOT SIT AT JAMKHANDI AND IMPUGNED
JUDGMENT AND DECREE DATED 20.12.2019 IN O.S.NO. 05/2018
PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, BANAHATTI AND
TO DISMISS THE SUIT, BY ALLOWING THIS APPEAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:10892
RSA No. 100337 of 2024
ORAL JUDGMENT
challenging the judgment and decree passed in
R.A.No.34/2020 dated 08.02.2024 on the file of the I
Addl.District and Sessions Judge, Bagalkote and the
judgment and decree passed in O.S.No.5/2018 dated
20.12.2019 on the file of the Senior Civil Judge and JMFC,
Banahatti, thereby the suit filed for partition is decreed by
the trial Court and is confirmed by the first appellate
Court, therefore, defendant No.2 and 4 have filed the
second appeal.
2. For the purpose of convenience, ranking of the
parties is referred to as per their status before the trial
Court.
3. It is the case of the plaintiffs that defendant
No.1 is the propositus of the family. The suit properties are
joint family properties and ancestral properties. The
plaintiff Nos.1 to 3 and defendant Nos.2 and 3 are married
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daughters. Defendant No.4 is the son of defendant No.2.
The plaintiffs have filed suit for partition and separate
possession claiming 1/5th share in the suit schedule
property.
4. The defendant No.3 had not contested the case
and she was placed ex-parte. Defendant Nos.2 and 4 have
appeared through counsel and filed written statement.
Defendant Nos.1, 2 and 4 have denied the plaint
averments. Further it is contended that the landed
property bearing Sy.No.52/2 measuring 2 acres 10 guntas
situated at Tamadaddi village, Jamkhandi taluk, Bagalkote
district is self acquired property of defendant No.4 as he
has received the said property by defendant No.1 through
registered gift deed. Therefore, prays to dismiss the suit.
5. The trial Court after receiving evidence, has
decreed the suit, thereby granting 1/5th share each to the
plaintiffs. Defendant Nos.1, 2 and 4 have preferred appeal
and the first appellate Court confirmed the judgment and
decree passed by the trial Court but during pendency of
the appeal, the defendant No.1 has therefore modified the
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share allotting to the extent of 1/5th share to the plaintiffs
and defendant Nos.2 and 3. It is ordered that defendant
Nos.2 and 4 are collectively entitled for 1/5th share in the
suit schedule property.
6. Being aggrieved by this, the defendant Nos.2
and 4 have preferred the second appeal, on the ground
that the suit schedule item bearing Sy.No.52/2 is self
acquired property of defendant No.4 as the defendant No.4
acquired the said property by way of gift executed by his
grand father of defendant No.1. Therefore, raised ground
and argued in the appeal that the said suit item bearing
Sy.No.52/2 is not liable to be partitioned, hence submitted
to this extent that the judgment and decree passed by
both the Courts are not correct.
7. The genealogy, the status of the parties in the
suit and the properties are joint family and ancestral
properties, are not in dispute. The defendant No.4 is the
son of defendant No.2, and grand son of defendant No.1.
It is argued that the suit land Sy.No.52/2 is self acquired
property of defendant No.4 and has received the same by
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way of gift executed by defendant No.1, but there is no
evidence to prove that this suit land is self acquired
property of defendant No.1, just because the defendant
No.4 has got the said suit property by virtue of gift by
defendant No.1, cannot be said that it is self acquired
property of defendant No.4.
8. Defendant No.1 has gifted the suit property to
defendant No.4. There is no evidence to prove that defendant
Nos.2 to 4 that this suit land has been purchased by
defendant No.1 from his earning so as to say that it is self
acquired property of defendant No.1. Both the Courts below
while appreciating the evidence on record, have observed
that defendant No.1 himself admitted that from his income
derived from the joint family property and ancestral
property, the land bearing Sy.No.52/2 was purchased,
hence, it is joint family property. Therefore, when this being
the admitted fact by defendant No.1 and also there is no
evidence to prove that the land bearing Sy.No.52/2 is self
acquired property of defendant No.1. Therefore, just because
of defendant No.1 had gifted away land bearing Sy.No.52/2
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in favour of defendant No.4 cannot be said that it is self
acquired property of defendant No.4. Therefore, the both the
Courts have correctly appreciated the evidence on record and
applied position of law. Therefore, there is no substantial
question of law is involved in this appeal so as to consider
the case on merits. There is no illegality and perversity in the
judgment and decree passed by the Courts below. Therefore,
appeal is dismissed.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
KGK-paras 1 to 7
AC-paras 8 till end
