Karnataka High Court
Yellappa S/O Siddappa Ingalhalli vs Smt. Neelawwa W/O Ningapa Tondihal on 8 February, 2024
-1-
NC: 2024:KHC-D:2974-DB
RFA No. 100260 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100260 OF 2017
(PAR/POS)
BETWEEN:
YELLAPPA S/O. SIDDAPPA INGALHALLI,
AGE: 60 YEARS, OCC: KSRTC CONDUCTOR,
R/O: MALLESH NILAYA, AZAD NAGAR,
3RD CROSS, SHIMOGA-577201.
...APPELLANT
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
AND:
1. SMT. NEELAWWA W/O. NINGAPA TONDIHAL,
Digitally signed AGE: 64 YEARS, OCC: HOUSEHOLDWORK,
by
SHIVAKUMAR R/O: SHIRGUPPI, TQ: HUBBALLI-580001.
HIREMATH
Date:
2024.02.20
11:06:38 +0530 2. SMT. VIJAYLAXMI W/O. DYAMAPPA INGALHALLI,
AGE: 61 YEARS, OCC: HOUSEHOLD WORK,
R/O: SHIRGUPPI, TQ: HUBBALLI-580001.
3. SRI. BASAVARAJ S/O. DYAMAPPA INGALHALLI,
AGE: 35 YEARS, OCC: PRIVATE SERVICE,
R/O: SHIRGUPPI, TQ: HUBBALLI-580001.
4. SMT. VIDYA W/O. ARVIND NAIKWADI,
AGE: 34 YEARS, OCC: HOUSEHOLD WORK,
R/O: 101, A-BLOCK, RAVIRAJ APARTMENT,
WANKARNAGAR, JULE, SHOLAPUR-413002.
-2-
NC: 2024:KHC-D:2974-DB
RFA No. 100260 of 2017
5. SMT. ASHWINI W/O. JAGADISH HALAVAGALI,
AGE: 32 YEARS, OCC: HOUSEHOLD WORK,
R/O: MUNDARGI, TQ: MUNDARGI-591119.
6. CHANNABASAPPA S/O. SIDDAPPA INGALHALLI,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: INGALHALLI BUILDING, SIDDESHWARNAGAR,
UNKAL CROSS, HUBBALLI-580001.
7. MAHADEVAPPA S/O. SIDDAPPA INGALHALLI,
AGE: 54 YEARS, OCC: KSRTC CONDUCTOR,
R/O: INGALHALLI BUILDING,
SIDDESHWARNAGAR, UNKAL CROSS,
HUBBALLI-580001.
8. GURUSIDDAPPA S/O. SIDDAPPA INGALHALLI,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: SHIRGUPPI, TQ: HUBBALLI-580001.
9. SHIVAPPA S/O. SIDDAPPA INGALHALLI,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: SHIRGUPPI, TQ: HUBBALLI-580001.
...RESPONDENTS
(BY SRI. VISHWANATH S. BICHAGATTI, ADVOCATE FOR R1,
R7, R8;
R2 NOTICE DISPENSED WITH;
NOTICE SERVED TO R3, R4, R5, R6;
R9 NOTICE HELD SUFFICIENT)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96
OF THE CODE OF CIVIL PROCEDURE, PRAYING TO MODIFY THE
JUDGMENT AND DECREE DATED 28/03/2017 IN
O.S.NO.53/2016 ON THE FILE OF THE II ADDITIONAL SENIOR
CIVIL JUDGE, HUBBALLI, BY DECREEING THE SUIT IN
ENTIRETY.
-3-
NC: 2024:KHC-D:2974-DB
RFA No. 100260 of 2017
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant challenging the
judgment and degree dated 28.03.2017 passed in OS
No.53/2016 by the II Additional Senior Civil Judge,
Hubballi, wherein, the trial Court has refused to grant a
share in item No.2 of 'A' schedule property and item No.6
of 'B' schedule property.
2. For the sake of convenience, parties are
referred to as per their rankings before the trial Court.
3. The appellant is a plaintiff, respondents are the
defendants. The plaintiff filed a suit for partition and
separate possession in respect of the suit schedule
properties. It is the case of the plaintiff that one Siddappa
Ingalhalli was a original propositus, he died on 02.12.1998
leaving behind his wife Smt. Shivakka @ Shivamma who
died on 13.02.2008. The plaintiff and Smt. Neelavva
(defendant No.1), Dyamappa, Yallappa, Chanabasappa,
NC: 2024:KHC-D:2974-DB
Mahadevappa and Gurusiddappa are the children of
Siddappa and defendant Nos.2 to 5 are the children of
Dyamappa. It is the case of the plaintiff that the suit
schedule properties are the joint family properties of the
plaintiff and defendants and there is no partition effected
between the plaintiff and defendants. The plaintiff
requested the defendants to effect a partition but, the
defendants refused to effect a partition. Hence, a cause of
action arises for the plaintiff to file a suit for partition and
separate possession.
4. Defendant Nos.1, 7 and 8 have filed a written
statement contending that the suit of the plaintiff is not
maintainable and disputed the genealogy furnished by the
plaintiff and admitted that the Dyamappa died leaving
behind defendant Nos.2 to 5 as his heirs. It is contended
that the mother of the plaintiff and defendant Nos.2 to 8
died on 13.02.2008. It is denied that the suit schedule
properties are the ancestral properties of the plaintiff and
defendants and it is contended that during the year 1960,
NC: 2024:KHC-D:2974-DB
the father of the plaintiff and defendant Nos.2 to 8 had
purchased item Nos.1 to 5 of the plaint 'B' schedule
properties and the defendants were minor at the time of
purchase of the properties. During the year 1990, they
have entered into a partition and the parties were put in
possession of the respective shares. Hence, prayed to
dismiss the suit.
5. The trial Court on the basis of the pleadings of
the parties framed the following issues:
1. Whether the plaintiff proves that he
and the defendant No.1 to 8 are the
members of Hindu undivided joint
family and further proves that the
plaint A, B, C and D schedule properties
are their joint family properties?
2. Whether the plaintiff proves that he is
entitle for a share in the suit schedule
properties as prayed in the suit?
3. What order or decree?
6. The plaintiff in order to substantiate his case,
examined himself as PW.1 and got marked 8 documents
NC: 2024:KHC-D:2974-DB
as Ex.P.1 to P.8 and defendant No.8 was examined as
DW.1 and got marked 5 documents as Ex.D.1 to 5. The
trial Court on the assessment of oral and documentary
evidence answered issue Nos.1 and 2 partly in the
affirmative and issue No.3 as per the final order. It is
ordered and decreed that the plaintiff is entitled for the
share in item No.2 of 'A' schedule property and item No.6
of 'B' schedule property. The prayer of plaintiff for partition
and separate possession of his share in respect of item
No.2 of 'A' schedule property and item No.6 of 'B' schedule
property and 'C' schedule properties is hereby rejected. In
so far as the other suit schedule properties are concerned,
the trial Court has granted 1/6th share each to the parties.
The plaintiff aggrieved by the judgment and preliminary
decree dismissing the suit in respect of item No.2 of 'A'
schedule property and item No.6 of 'B' schedule property,
filed this appeal.
7. Heard the learned counsel for the plaintiff and
also the learned counsel for the defendants.
NC: 2024:KHC-D:2974-DB
8. Learned counsel for plaintiff submits that the
trial Court has dismissed the suit in respect of item No.2 of
'A' schedule property and item No.6 of 'B' schedule
properties solely on the ground that the plaintiff has not
produced any records to show that the item No.2 of 'A'
schedule property and item No.6 of 'B' schedule properties
are the ancestral properties of the plaintiff and defendants.
He further submits that the plaintiff has filed an application
for production of additional evidence and the said
application has came to be allowed by this Court vide
order dated 07.02.2024 and the said documents were
marked as Ex.P.9 to P.17, he submits that the plaintiff has
produced the documents to establish that item No.2 of 'A'
schedule property and item No.6 of 'B' schedule properties
are the ancestral properties of the plaintiff. Hence, he also
further submits that the defendants have not denied that
item No.2 of 'A' schedule property and item No.6 of 'B'
schedule properties are the ancestral properties. Hence,
he submits that the trial Court has committed an error in
dismissing the suit in respect of item No.2 of 'A' schedule
NC: 2024:KHC-D:2974-DB
property and item No.6 of 'B' schedule property. Hence, on
these grounds he prays to allow the appeal.
9. Per contra, learned counsel for the defendants
submits that the plaintiff has not produced any records
before the trial Court to demonstrate that item No.2 of 'A'
schedule property and item No.6 of 'B' schedule properties
are the ancestral properties of the plaintiff and defendants.
In the absence of documents, the trial Court was justified
in dismissing the suit in respect of item No.2 of 'A'
schedule property and item No.6 of 'B' schedule property.
Hence, on these grounds, he prays to dismiss the appeal.
10. Perused the records and considered the
submissions of the learned counsel for the parties.
11. The Points that would arise for our
consideration are as under:
1. Whether the plaintiff proves that item
No.2 of 'A' schedule property and item No.6
NC: 2024:KHC-D:2974-DB
of 'B' schedule properties are the ancestral
properties of plaintiff and defendants?
2. Whether the plaintiff proves that the
trial Court has committed an error in
dismissing the suit in respect of item No.2 of
'A' schedule property and item No.6 of 'B'
schedule property?
3. Whether the trial Court was justified in
granting the notional share to defendant
No.1?
4. What order or degree?
12. Point Nos.1 and 2: Both these Points are
interlinked with each other hence, they are taken together
for common discussion in order to avoid the repetition of
facts.
13. There is no dispute with regard to the
relationship of the parties. It is also not in dispute that the
suit schedule properties were stood in the name of original
propositus namely Siddappa. Further, it is the case of the
- 10 -
NC: 2024:KHC-D:2974-DB
plaintiff that the suit schedule properties are the ancestral
properties of the plaintiff and defendants and there is no
partition effected between the plaintiff and defendants.
The plaintiff in order to prove his case, examined himself
as PW.1 and he has reiterated the plaint averments in the
examination-in-chief and produced the records as Ex.P.1
to P.3. Ex.P.1 is the RTC extract in respect of the land
bearing Sy.59 stood in the name of Siddappa, Ex.P.2 is the
copy of RTC extract in respect of land bearing Sy.
No.340/2 stands in the name of defendant No.8 and
Ex.P.3 is the copy of RTC extract in respect of land bearing
Sy. No.58/2 stands in the name of plaintiff. Ex.P.4 is the
certified copy of the extract of property register in respect
of property bearing CTS No.3344. Ex.P.5 is the certified
copy of the extract from the property register in respect of
property bearing CTS No.3345. Ex.P.6 is the certified copy
of the extract from the property register in respect of
property bearing CTS No.3346. Ex.P.7 is the certified copy
of the extract from the property registered in respect of
the property bearing CTS No.3347. Ex.P.8 is the certified
- 11 -
NC: 2024:KHC-D:2974-DB
copy of the extract from the property register in respect of
the property bearing CTS No.3348. Ex.P.9 is the copy of
mutation extract which discloses that all the suit schedule
properties were stood in the name of ancestors of the
plaintiff.
14. Further, from the perusal of evidence of PW.1
and also documents produced by the plaintiff would
discloses that the suit schedule properties are the
ancestral properties of the plaintiff and defendant Nos.2 to
8 and further in rebuttal, the defendant No.8 was
examined as DW.1 and he has reiterated the written
statement averments in the examination-in-chief and
produced the documents. Ex.D.1 is the certified copy of
the sale deed in respect of item No.7 of 'B' schedule
property and also produced the registered sale deed. In
the course of cross-examination of DW.1, he has clearly
admitted that the suit schedule properties are the
ancestral properties of the plaintiff and defendants but, he
has taken a defence that there was a partition between
- 12 -
NC: 2024:KHC-D:2974-DB
the plaintiff and defendants in order to prove that there
was a prior partition between the plaintiff and defendants.
15. The DW.1 has not produced any records to
establish that there was a prior partition. The trial Court
has dismissed the suit in respect of suit item No.2 of 'A'
schedule property and item No.6 of 'B' schedule property
solely on the ground that the plaintiff has not produced
any records to show that the said suit schedule properties
are the joint family properties of the plaintiff and
defendants. During the pendency of this appeal, the
plaintiff has filed an application for production of additional
documents and the said application came to be allowed
vide order dated 06.02.2024 and also the said documents
were marked as Ex.D.9 to D.11. The said documents
discloses that item No.2 of 'A' schedule property stands in
the name of Siddappa and item No.6 of suit schedule
property i.e., VPC No.512 which stands in the name of
defendant No.1. Further, Ex.P.9 discloses that the property
bearing VPC No.445 stands in the name of Siddappa and
- 13 -
NC: 2024:KHC-D:2974-DB
further, Ex.P.13 is the extract of VPC No.512 which stands
in the name of defendant No.1 i.e., the sister of the
plaintiff and defendant Nos.2 to 8. From the perusal of the
records, it discloses that item No.2 of 'A' schedule property
and item No.6 of 'B' schedule properties are the joint
family properties of plaintiff and defendants. Thus, the
plaintiff proves the said properties are the joint family
properties of plaintiff and defendants. The plaintiff is
entitled for share in item No.2 of 'A' schedule property and
item No.6 of 'B' schedule property. The trial Court has
committed an error in dismissing the suit in respect of
item No.2 of 'A' schedule property and item No.6 of 'B'
schedule property. As observed above, the plaintiff has
produced the documents to demonstrate that the said
properties are the joint family properties of the plaintiff
and defendants. In view of the above discussion, we
answer Point Nos.1 and 2 in the affirmative.
16. Point No.3: The defendant No.1 being the
daughter of Siddappa admittedly, there is no partition in
- 14 -
NC: 2024:KHC-D:2974-DB
the family of plaintiff and defendants. We have already
recorded a finding that, the suit schedule properties are
the ancestral joint family properties of the plaintiff and
defendants. As per Section 6 of the Hindu Succession
Amendment Act - 2005, the daughter becomes a
coparcener by birth in her own right in the same manner
as of a son and have the same rights in the coparcenery
property as should have and if she had been a son.
17. Admittedly, the defendant No.1 being a
daughter and further, in view of the law laid by the Apex
Court in the case of Vineeta Sharma Vs. Rakesh
Sharma and Others reported in ILR 2020 KAR 4370
wherein, the Hon'ble Apex Court held that the daughter is
a coparcener and entitled for a equal share. The trial Court
has committed an error in granting a notional share to the
defendant No.1. In view of Order 41 Rule 33 we proceed
to modify the judgment and decree passed by the trial
Court, in so far as quantum of share allotted to the
defendant No.1.
- 15 -
NC: 2024:KHC-D:2974-DB
18. Point No.4: Accordingly, we proceed to pass
the following:
ORDER
i) The appeal is allowed-in-part.
ii) The judgment and decree passed by the
trial Court by dismissing the suit in
respect of item No.2 of 'A' schedule
property and item No.6 of 'B' schedule
property is hereby set aside.
Consequently, the suit of the plaintiff is
decreed in respect of item No.2 of 'A'
schedule property and item No.6 of 'B'
schedule property.
iii) The judgment and decree passed by the
trial Court is here by modified.
iv) The plaintiff is entitled for 1/6th share
and defendant No.1, 6, 7 and 8 are
entitled for 1/6th share each in the suit
schedule properties. Defendant Nos.2, 3,
- 16 -
NC: 2024:KHC-D:2974-DB
4 and 5 together are entitled for 1/6th
share in the suit schedule properties.
v) Draw decree accordingly.
No order as to the costs.
Sd/-
JUDGE
Sd/-
JUDGE
PJ
