Karnataka High Court
Rathavendra S/O Shrikant Potaraddi vs Shrikant S/O Laxmappa Potaraddi on 12 February, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
-1-
NC: 2024:KHC-D:3052
RFA No. 100022 of 2019
C/W RFA No. 100018 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
REGULAR FIRST APPEAL NO. 100022 OF 2019 (PAR/POS)
C/W REGULAR FIRST APPEAL NO. 100018 OF 2019
IN RFA NO.100022/2019:
BETWEEN:
1. RATHAVENDRA S/O SHRIKANT POTARADDI
AGE:15 YEARS,
OCC:STUDENT,
R/O KHAJJIDONO,
SUJATA TQ:BAGALKOT
SUBHASH REP.BY HIS MINOR GUARDIAN
PAMMAR HIS MOTHER
SMT. REKHA APPL.NO.2
SUJATA
SUBHASH 2. SMT. REKHA W/O SHRIKANT POTARADDI
PAMMAR AGE:29 YEARS, OCC:HOUSE HOLD WORK,
R/O KHAJJIDONI,
TQ:BAGALKOT
...APPELLANTS
(BY SRI. N P VIVEKMEHTA, ADVOCATE)
AND:
1. SHRIKANT
S/O LAXMAPPA POTARADDI
AGE:43, OCCC:AGRICULTURE,
JR/O KHAJJIDONI,
TQ:BAGALKOT-587101
2. SMT. SAVITRI
W/O VENKATESH POTARADDI
AGE:33, OCC:HOUSEHOLD WORK,
R/O KHAJJIDONI,
TQ:BAGALKOT-587101
-2-
NC: 2024:KHC-D:3052
RFA No. 100022 of 2019
C/W RFA No. 100018 of 2019
3. SMT.KASTURABAI
W/O SURESHGOUDA PATIL
AGE:58 YEARS, OCC:HOUSEHOLD WORK,
R/O SIDDRAMESHAWAR COLONY WARD NO.5
YADWAD ROAD MUDHOL,
TQ: MUDHOL,
DIST:BAGALKOT-87313
...RESPONDENTS
(BY SRI. R.K.KULKARNI, ADVCOATE FOR C/R2;
MISS VINUTA M. KHANNUR, ADV. FOR
SRI. MADAN MOHAN M. KHANNUR, ADV. FOR R1)
THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER
XLI (41) OF CPC AGAINST THE JUDGMENT AND DECREE OF THE
COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, MUDHOL
DATED 22.10.2018 PASSED IN O.S.NO.54/2014 AND DECREE THE
SUIT OF PLAINTIFFS AS PRAYED FOR BY ALLOWING THIS APPEAL.
IN RFA NO.100018/2019:
BETWEEN:
SHRIKANT S/O LAXMAPPA POTARADDI,
AGE: MAJOR, OOCC: AGRICULTURE,
R/O KHAJJIDONI, TQ:BAGALKOT.
...APPELLANT
(BY SRI. N P VIVEKMEHTA, ADVOCATE)
AND:
SMT. SAVITRI
W/O VENKATESH POTARADDI
AGE:33, OCC:HOUSEHOLD WORK,
R/O KHAJJIDONI,
TQ:BAGALKOT-587101
...RESPONDENT
(BY SRI. R.K.KULKARNI, ADV. FOR C/R1)
THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER
XLI (41) OF CPC AGAINST THE JUDGMENT AND DECREE OF THE
COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, MUDHOL
DATED 22.10.2018 PASSED IN O.S.NO.98/2012 AND DECREE THE
SUIT OF PLAINTIFFS AS PRAYED FOR BY ALLOWING THIS APPEAL.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC-D:3052
RFA No. 100022 of 2019
C/W RFA No. 100018 of 2019
JUDGMENT
These appeals arise out of common judgment and decree
dated 22.10.2018, by which, O.S. No.98/2012 was decreed
allotting ½ a share to the plaintiffs and ½ a share to the
defendants and O.S. No.54/2014 for partition and separate
possession of their 2/3rd share in the ½ a share of defendant
No.1 in the suit property was partly decreed allotting 2/3rd
share in the agricultural property and declining to allot share in
the house property.
2. The plaintiff in O.S. No.98/2012 initiated suit for
partition and separate possession inter alia contending that
Laxmappa Mudukappa Potaraddi, who was the porpositus died
on 02.01.2012 leaving behind his two sons namely defendant
No.1 and one Venkatesh. Venkatesh died by leaving behind his
wife i.e., the plaintiff, as his class I legal heir and deceased
Venkatesh and defendant were the members of joint hindu
family and Venkatesh died on 12.04.2007 and after his death,
she succeeded to the suit properties. The request of the
plaintiff to effect partition was not acceded to by the defendant.
Hence, the suit.
NC: 2024:KHC-D:3052
3. The defendant entered appearance and filed written
statement denying the plaint averments. However, admitted
that his brother Venkatesh was serving in the Indian Military,
and died on 12.04.2007. The plaintiff has not included all the
family properties. Therefore, suit for partial partition is not
maintainable. It was further contended that the plaintiff
purchased CTS No.4026A/B/30 out of the income derived from
the joint family property.
4. O.S. No.54/2014 was filed for partition and
separate possession of 2/3rd share in the ½ share of the
defendant No.1 in the suit properties contending that one
Laxmappa was the propostius, who died about 11 years back
and his wife Sharawwa died about 14 years back leaving behind
defendant No.1 and Venkatesh to succeed to his property. The
deceased Venkatesh is the husband of defendant No.2 and the
suit schedule properties are the ancestral joint family properties
and no partition was effected. Plaintiff No.2 is the wife and
plaintiff No.1 is the son of defendant No.1. The defendant No.1
is addicted to bad vices, and he has deserted the plaintiffs, and
the plaintiffs and defendants are in joint possession and
enjoyment of the suit properties. The property bearing CTS
NC: 2024:KHC-D:3052
No.4026A/B/30 was purchased in the name of defendant No.2
out of the income derived from the joint family funds. The Trial
Court after considering the pleading of the parties framed the
following issues:
Issues in O.S. No.98/2012:
1. Whether the plaintiff proves that, suit
properties are Joint Hindu family properties of
herself and defendant?
2. Whether plaintiff is having any share in suit
properties? If so to what extent?
3. Whether the defendant proves that the suit is
bad for non inclusion of CTS No.4026A/B/30 of
Mudhol as contended in WS?
4. Whether suit is bad for non joinder of
necessary parties?
5. Whether plaintiff is entitled for relief sought
for?
6. What Order / Decree?
Issues in O.S. No.54/2014:
1. Whether the plaintiffs proves that, Schedule A
properties are Hindu Joint family coparcenary
properties of plaintiffs and defendants and CTS
No.4026A/B/30 is purchased in the name of
NC: 2024:KHC-D:3052
plaintiff No.2 out of income derived from landed
properties?
2. Whether Defendant No.2 proves that CTS
No.4026/A/B/30 of Mudhol is herself acquired
property as contended in written statement?
3. Whether the suit is bad for non joinder of
necessary parties?
4. Whether plaintiffs are entitled for any share in suit
properties? If so to what extent?
5. What order / decree?
ADDITIONAL ISSUE
1. Whether the defendant No.3 proves that CTS
No.4026/A/B/30 of Mudhol is self acquired
property of defendant No.2?"
5. The plaintiff in O.S. No.98/2012 examined herself
as P.W.1 and two others as PWs.2 and 3, and marked
documents at Exs.P-1 to P-46. Defendants examined D.Ws.1 to
3 and marked a document at Ex.D-1.
6. During the pendency of the suit, plaintiff in O.S.
No.98/2012 gifted the house property standing in her name in
favour of the mother. The Trial Court after appreciating the
evidence on record, decreed O.S. No.98/2012 allotting ½ a
share to the plaintiff and defendant in the suit schedule
properties and decreed O.S. No.54/2014 partly, allotting 1/3rd
NC: 2024:KHC-D:3052
share in ½ a share to defendant No.1 in suit item Nos.1 and 2
and 4 properties, and defendant No.2 was allotted ½ a share in
suit item Nos.1, 2 and 4 properties. Hence, these appeals.
7. Heard the learned counsel for the parties and
perused the Trial Court records.
8. The relationship between the parties is not in
dispute, and it is also not in dispute that Laxmappa, the
propositus died leaving behind the husband of plaintiff in O.S.
No.98/2012 i.e., deceased Venkatesh, and defendant No.1 as
his class I heirs. It is also not in dispute that the suit schedule
properties except the house property i.e., item No.3 in O.S.
No.54/2014 were standing in the name of deceased Laxmappa.
It is also not in dispute, item No.3 was standing in the name of
plaintiff in O.S. No.98/2012. The only dispute is with regard to
the house property i.e., item No.3 in the suit schedule
property, as to whether the suit property belongs to the joint
family property or is the absolute property of plaintiff in O.S.
No.98/2012.
9. To substantiate that the plaintiff is the absolute
owner of the suit schedule property, the plaintiff produced
NC: 2024:KHC-D:3052
Ex.P35 - certificate showing particulars of deceased soldier,
Ex.P36 - Pension Certificate of deceased Venkatesh, Ex.P37 -
Pension Certificate of Smt.Savitri. Ex.P15 is the certified copy
of the sale deed dated 20.02.2009. Exs.P9, P14 P15, P46 are
the documents relating to the immovable house property i.e.,
item No.3 in O.S. No.54/2014. Ex.P9 is the plain card which
discloses that the said property belongs to one Mohan
Manikchand and the same was conveyed to the plaintiff in O.S.
No.98/2012 by a registered sale deed dated 20.02.2009 at
Ex.P15, and in pursuance of the same, the name of the plaintiff
in O.S. No.98/2012 was mutated in the revenue records.
Ex.P14 is the certified copy of the mortgage deed executed by
the plaintiff in favour of Syndicate Bank on 08.09.2009 towards
security for repayment of loan of Rs.8,25,000/- borrowed for
construction of the house. Ex.P46 is the property register
extract which discloses that house property i.e., item No.3 in
O.S. No.54/2014 is standing in the name of the plaintiff in O.S.
No.98/2012. The defendant in O.S. No.98/2012 has not
produced any document to substantiate that the item No.3
property was purchased out of the funds of the joint family. The
defendant has also not pleaded in the written statement that he
NC: 2024:KHC-D:3052
had paid a sum of Rs.15 lakhs to the plaintiff towards
purchasing the vacant plot in item No.3.
10. The evidence on record clearly establishes that the
plaintiff in O.S. No.98/2012 purchased item No.3 property out
of the terminal benefits of the deceased Venkatesh, and also
the pension which she is receiving after the death of her
husband.
11. The Trial Court after appreciating the evidence of
record, in a proper perspective has rightly decreed the suit and
in the absence of any perversity or arbitrariness in the finding
recorded by the Trial Court, I do not find any illegality in the
impugned judgment and decree passed by the Trial Court.
Accordingly, appeals stand dismissed.
Sd/-
JUDGE
RSH / CT:ANB
