Karnataka High Court
Chikkanagouda S/O Ramanagouda ... vs Smt.Shakuntala @ Shekamma W/O ... on 14 February, 2024
-1-
NC: 2024:KHC-D:3507-DB
RFA No. 100009 of 2016
C/W RFA.CROB No. 100010 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH 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. 100009 OF 2016 (PAR)
C/W
RFA CROSS OBJ NO. 100010 OF 2017
IN RFA NO.100009 OF 2016:
BETWEEN:
1. CHIKKANAGOUDA S/O. RAMANAGOUDA
MUDIGOUDAR @ ARAHUNASI @ SULLAD,
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O: SAVADI, TQ: RON,
DIST: GADAG-561102.
2. YASHAVANTAGOUDA S/O. RAMANAGOUDA
MUDIGOUDAR @ ARAHUNASI @ SULLAD,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: SAVADI, TQ: RON, DIST: GADAG-561102.
...APPELLANTS
Digitally signed
by
MOHANKUMAR
(BY SMT.NANDINI B.SOMAPUR AND
MOHANKUMAR B SHELAR
B SHELAR
Date:
2024.02.22
16:00:32 +0530
SRI.B.V.SOMAPUR, ADVOCATES)
AND:
1. SMT. SHAKUNTALA @ SHEKAMMA
W/O. VEERUPAKSHAPPA SOMARADDI,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: TALKAL, TQ: YALABURGI,
DIST: KOPPAL-591106.
2. RUDRAGOUDA S/O. RAMANAGOUDA
MUDIGOUDAR @ ARAHUNASI @ SULLAD,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: SAVADI, TQ: RON, DIST: GADAG-561102.
-2-
NC: 2024:KHC-D:3507-DB
RFA No. 100009 of 2016
C/W RFA.CROB No. 100010 of 2017
3. SMT. KASTURI W/O. SANGAPPA HALLUR
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O: GONIHAL TQ: BASAVANA BAGEVADI,
DIST: VIJAYAPUR-561102.
4. SMT. SHANKRAVVA W/O. BHIMANAGOUDA
MUDIGOUDAR @ ARAHUNASI @ SULLAD,
AGE: 62 YEARS, OCC: AGRICULTURE AND
HOUSEHOLD WORK, R/O: SAVADI,
NOW NEAR GOVERNMENT HOSPITAL,
KOPPAL-591106.
5. SHARANAPPAGOUDA S/O. BHIMANAGOUDA
MUDIGOUDAR @ ARAHUNASI @ SULLAD,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O: SAVADI, NOW NEAR GOVERNMENT
HOSPITAL, KOPPAL-591102.
6. SMT. MEENAKSHI W/O. NAGARAJ HATTIGUDDA
AGE: 32 YEARS, OCC: HOUSEHOLD WORK,
R/O: NOW NEAR GOVERNMENT HOSPITAL,
KOPPAL, TQ AND DIST: KOPPAL-591106.
7. ISHWARGOUDA S/O. CHANNAPPAGOUDA PATIL
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: ARAHUNASI, TQ: RON, DIST: GADAG-561102.
8. KUMARI AKSHATA D/O. ISHWAR PATIL
AGE: 12 YEARS, OCC: STUDENT,
MINOR REP. BY HER NATURAL FATHER
RESPONDENT NO.7, 561103.
9. SHRANABASAVARAJ S/O. ISHWAR PATIL
AGE: 10 YEARS, OCC: STUDENT,
MINOR REP. BY HER NATURAL FATHER
DEFENDANT NO.7, 561102.
10. BASANAPPAGOUDA S/O. YALLAPPAGOUDA
MUDIGOUDAR @ ARAHUNASI @ SULLAD,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: SAVADI, NOW NEAR BASAVARADDI
HOSPITAL, GADAG-561102.
11. SMT. NINGAVVA
W/O. YALLAPPAGOUDA CHAVADI,
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
-3-
NC: 2024:KHC-D:3507-DB
RFA No. 100009 of 2016
C/W RFA.CROB No. 100010 of 2017
R/O: SOMANAKATTI, TQ: RON,
DIST: GADAG-561102.
12. RUDRAGOUDA S/O. YALLAPPAGOUDA
MUDIGOUDAR @ ARAHUNASI @ SULLAD,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: SAVADI, TQ: RON,
DIST: GADAG-561102.
13. RMANAGOUDA S/O. RUDRAGOUDA
MUDIGOUDAR @ ARAHUNASI @ SULLAD,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O: SAVADI, TQ: RON, DIST: GADAG-561102.
14. NAGARAJ S/O. MALLAPPA BHAGAVATI
AGE: 13 YEARS, OCC: STUDENT,
SINCE MINOR REP. BY HIS MOTHER
RESPONDENT NO.16 SMT.RENUKA
W/O. MALLAPPA BHAGAVATI,
R/O: SAVADI, TQ: RON,
DIST: GADAG-561102.
15. VINAY S/O. MALLAPPA BHAGAVATI
AGE: 10 YEARS, OCC: STUDENT,
SINCE MINOR REP. BY HIS MOTHER RESP.NO.16,
SMT. RENUKA W/O. MALLAPPA BHAGAVATI,
R/O: SAVADI, TQ: RON, DIST: GADAG-561102.
16. SMT. RENUKA W/O. MALLAPPA BHAGAVATI
AGE: 33 YEARS, OCC: AGRICULTURE
AND HOUSE HOLD WORK, R/O: SAVADI,
TQ: RON, DIST: GADAG-561102.
...RESPONDENTS
(BY SRI.PRASHANT S.HOSAMANI, ADVOCATE FOR R1;
NOTICE TO R2 TO R7, R10 TO R16 ARE SERVED;
R8 AND R9 ARE MINORS REP.BY R7)
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED 02.11.2015
PASSED IN O.S.NO.15/2013 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, RON DECREEING PARTLY THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
-4-
NC: 2024:KHC-D:3507-DB
RFA No. 100009 of 2016
C/W RFA.CROB No. 100010 of 2017
IN RFA CROB. NO.100010 OF 2017:
BETWEEN:
SHAKUNTALA @ SHEKAMMA
W/O. VEERUPAKSHAPPA SOMARADDI,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: TALAKAL, TQ: YALABURGA,
DIST: KOPPAL-583201.
...CROSS-OBJECTOR
(BY SRI.PRASHANT S.HOSMANI, ADVOCATE)
AND:
1. CHIKKANAGOUDA S/O. RAMANAGOUDA
MUDIGOUDAR @ ARAHUNASI @ SULLAD,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O: SAVADI, TQ: RON,
DIST: GADAG-582101.
2. YASHAVANTAGOUDA S/O. RAMANAGOUDA
MUDIGOUDAR @ ARAHUNASI @ SULLAD,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O: SAVADI, TQ: RON,
DIST: GADAG-582101.
3. RUDRAGOUDA S/O. RAMANAGOUDA
MUDIGOUDAR @ ARAHUNASI @ SULLAD,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: SAVADI, TQ: RON,
DIST: GADAG-582101.
4. SMT. KASTURI W/O. SANGAPPA HALLUR
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
R/O: GONIHAL, TQ: BASAVANABAGIWADI,
DIST: VIJAPUR-582621.
5. SHANKARAVVA W/O. BHIMANAGOUDA
MUDIGOUDAR @ ARAHUNASI @ SULLAD,
AGE: 66 YEARS, OCC: AGRICULTURE AND
HOUSEHOLD WORK,
R/O: SAVADI, NOW R/O: NEAR GOVERNMENT
HOSPITAL, KOPPAL, DIST: KOPPAL-583201.
6. SHARANAPPAGOUDA S/O. BHIMANAGOUDA
MUDIGOUDAR @ ARAHUNASI @ SULLAD,
-5-
NC: 2024:KHC-D:3507-DB
RFA No. 100009 of 2016
C/W RFA.CROB No. 100010 of 2017
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O: SAVADI, NOW R/O: NEAR GOVERNMENT
HOSPITAL, KOPPAL, DIST: KOPPAL-583201.
7. SMT. MEENAKSHI W/O. NAGRAJ HATTIGUDDA
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
R/O: SAVADI, NOW R/O: NEAR GOVERNMENT
HOSPITAL KOPPAL, DIST: KOPPAL-583201.
8. ISHWARGOUDA
S/O. CHANNAPPAGOUDA PATIL,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: ARAHUNSHI, TQ: RON,
DIST: GADAG-582101.
9. KUMARI. AKSHATA D/O. ISHWAR PATIL
AGE: 13 YEARS, OCC: STUDENT,
MINOR REPRESENTED BY HER
NATURAL FATHER RESPONDENT NO.8.
10. SHARANABASAVRAJ S/O. ISHWAR PATIL
AGE: 11 YEARS, OCC: STUDENT,
MINOR REPRESENTED BY HER
NATURAL FATHER RESPONDENT NO.8.
11. BASANA GOUDA S/O. YALLAPPA GOUDA
MUDIGOUDAR @ ARAHUNASI @ SULLAD,
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O: SAVADI, NOW: R/O: NEAR GOVERNMENT
HOSPITAL, KOPPAL, DIST: KOPPAL-583201.
12. SMT. NINGAVVA W/O. YALLAPPAGOUDA CHAVADI,
AGE: 61 YEARS, OCC: HOUSEHOLD WORK,
R/O: SOMANAKATTI, TQ: RON, DIST: GADAG-582101.
13. RUDRAGOUDA S/O. YALLAPPAGOUDA
MUDIGOUDAR @ ARAHUNASI @ SULLAD,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: SAVADI, TQ: RON, DIST: GADAG-582101.
14. RAMANAGOUDA S/O. RUDRAGOUDA
ARAHUNASI @ MUDIGOUDAR @ SULLAD,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: SAVADI, TQ: RON,
DIST: GADAG-582101.
-6-
NC: 2024:KHC-D:3507-DB
RFA No. 100009 of 2016
C/W RFA.CROB No. 100010 of 2017
15. NAGARAJ S/O. MALLAPPA BHAGAVATI
AGE: 14 YEARS, OCC: STUDENT,
SINCE MINOR R/BY HIS
NATURAL MOTHER RESPONDENT NO.17,
RENUKA W/O. MALLAPPA BHAGAVATI,
R/O: SAVADI, TQ: RON,
DIST: GADAG-582101.
16. VINAY S/O. MALLAPPA BHAGAVATI
AGE: 11 YEARS, OCC: STUDENT,
SINCE MINOR R/BY HIS
NATURAL MOTHER RESPONDENT NO.17,
RENUKA W/O. MALLAPPA BHAGAVATI,
R/O: SAVADI, TQ: RON,
DIST: GADAG-582101.
17. RENUKA W/O. MALLAPPA BHAGAVATI
AGE: 34 YEARS, OCC: AGRICULTURE
AND HOUSEHOLD, R/O: SAVADI,
TQ: RON, DIST: GADAG-582101.
...RESPONDENTS
(BY SMT.NANDINI B.SOMAPUR AND
SRI.B.V.SOMAPUR, ADVOCATE FOR R1 AND R2;
CROB APPEAL AGAINST R3 IS DISMISSED V/O DT. 25.01.2021;
R5 TO R8, R11, R13, R14, R17 ARE SERVED.
R9 AND R10 ARE MINORS R/BY R8;
R15 AND R16 ARE MINOR R/BY R17;
VIDE ORDER DATED 06/12/2023 NO NEED TO TAKE STEPS
IN RESPECT OF R4 AND R12 )
THIS RFA.CROB IS FILED UNDER ORDER 41 RULE 22 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 02.11.2015 PASSED
IN O.S.NO.15/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MIGISTRATE FIRST CLASS, RON, PARTLY DECREEING THE
SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THESE RFA AND CROSS OBJECTION COMING ON FOR
ORDERS, THIS DAY, ASHOK S. KINAGI, J., DELIVERED THE
FOLLOWING:
-7-
NC: 2024:KHC-D:3507-DB
RFA No. 100009 of 2016
C/W RFA.CROB No. 100010 of 2017
JUDGMENT
This appeal and cross objections are filed by the
appellants and the cross-objector challenging the
judgment and preliminary decree dated 02.11.2015
passed in O.S. No.15/2013 by the learned Senior Civil
Judge and JMFC Ron.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court in
O.S.No.15/2013. In RFA No.100009/2016, appellants are
defendants No.1 and 2 in and respondent No.1 is the
plaintiff and respondents No.2 to 16 are defendants No.3
to 17. In Crob.No.100010/2017, cross-objector is the
plaintiff and respondents No.1 to 17 are defendants No.1
to 17.
3. Brief facts leading rise to filing of these appeal
and cross objections are as under:
The plaintiff filed a suit for partition and separate
possession of her legitimate share in the suit properties. It
is the case of the plaintiff that Tippanagouda is the
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
propositus of the family. Yallavva is the wife of
Tippanagouda. Tippanagouda had two sons by name
Yallappagouda and Ramanagouda. The plaintiff and
defendant No.4 are the daughters and defendant Nos.1 to
3 are the sons of Ramanagouda. Hanamavva is the wife
of Ramanagouda. Defendant Nos.1 to 4 and the plaintiff
represent the branch of Ramanagouda and defendant
Nos.5 to 13 represent the branch of Yallappagouda. It is
contended that suit 'A' schedule properties are situated at
Sulla village in Badami Taluk and all the properties are the
ancestral properties of the plaintiffs and defendant Nos.1
to 4. The branch of Yallappagouda is having half share
and the branch of Ramanagouda is having the remaining
half share. It is contended that, some of the properties
described in schedule 'B' and 'D' are the properties
inherited by Smt. Yallavva who is the wife of propositus
Tippanagouda and after her demise, her son
Yallappagouda and Ramanagouda got divided the
properties inherited by Yallavva from her parents. In the
said partition, 40 acres of land each fell to the share of
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
Ramanagouda and Yallappagouda and under that partition,
one house and one open space each were allotted to the
share of Ramanagouda and Yallappagouda. After the
demise of Ramanagouda, defendant No.2 started to
manage the affairs of the joint family properties consisting
of the plaintiff, himself and defendants Nos.1, 3 and 4.
Defendant No.2 purchased some of the properties shown
in 'B' and 'D' schedule and entire properties shown in 'C'
schedule by using the joint family nucleus. Hence, it is
stated that the suit schedule properties are the joint family
properties of the plaintiffs and the defendants. It is
contended that the plaintiffs and defendants are members
of the joint family. The plaintiffs demanded for partition
and separate possession but the defendants denied to
effect partition. Hence, cause of action arose for the
plaintiffs to file a suit for partition and separate
possession.
4. The trial Court issued summons. Defendant
Nos.1 to 4 and 14 to 17 appeared through their counsel.
- 10 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
Defendant Nos.5 to 8 and 11 to 13 remained absent and
they were placed exparte. Defendant Nos.9 and 10 were
minors.
5. Defendant Nos.1, 2 and 4 filed written
statement denying the averments made in the plaint. It is
contended that Ramanagouda and Yallappagouda have
inherited certain properties from their parents and
admitted partition in those properties between
Yallappagouda and Ramanagouda and they also admitted
that in the said partition, 39-40 acres of land, one house
and one vacant site each were allotted to the share of
Ramanagouda and Yallappagouda. It is contended that all
the ancestral properties were divided by metes and
bounds in the year 1996 itself and defendant Nos.1 to 3
are in possession of their respective properties as absolute
owners. For such partition, the plaintiff and defendant
No.4 have given their consent. Hence, the plaintiff and
defendant No.4 have no right, title and interest in the
ancestral properties. It is contended that defendant No.3
- 11 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
has purchased item Nos.21 to 23 in schedule 'B' property
from his own earnings and therefore those properties are
the self-acquired properties of defendant No.3. Hence,
prayed to dismiss the suit.
6. The trial Court on the basis of the pleadings of
the parties, framed the following issues:
"ISSUES
1. Whether the plaintiff proves that, she has got
1/5th share out of her fathers ½ share in the suit
schedule A properties and 1/5th share in the
remaining suit schedule B, C and D properties?
2. Whether the plaintiff further proves that, the
genealogical pedigree as pleaded in the plaint
para No.2?
3. Whether the plaintiff further proves that, the suit
properties are the joint family ancestral
properties?
4. Whether the plaintiff further proves that, she is
entitle for the relief of partition and separate
possession in respect of her legitimate 1/5th share
in the remaining suit schedule properties by
metes and bounds?
5. Whether the defendants prove that, the suit of
the plaintiff is not maintainable in view of having
not brought the ancestral properties such as
R.S.No.33/2008 measuring 38 guntas and 1
house property both situated at Sull village into
the hotchpot of the subject-matter of the instant
suit?
- 12 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
6. Whether the defendants prove that, already the
partition has taken place in their family in the
year 1996 and acted-upon and effected the
M.E.No.553 accordingly?
7. Whether the defendants prove that, the suit
schedule B property at serial No.4 and suit
schedule D property at serial No.16 are the self-
acquired properties of the defendant No.1?
8. Whether the defendants further prove that, the
suit schedule B properties at serial No.1 A, B, and
19, suit schedule C property at serial Nos. 1, 2, 3
and 4, suit schedule D properties at serial No.6,
8, 10 and 11 are the self-acquired properties of
the defendant No.2?
9. Whether there is a proper cause of action to the
plaintiff to file the instant suit?
10. Whether the instant Court has the pecuniary
jurisdiction to try and entertain the instant suit of
the plaintiff?
11. Whether the suit of plaintiff is valued properly and
paid the Court Fee property?
12. Whether the suit of the plaintiff is barred by law
of limitation?
13. Whether the plaintiff is entitle for the relief of
partition and separate possession by metes and
bounds as sought-for in the plaint?
14. To what order or decree?"
7. The plaintiff in support of her case, examined
herself as PW-1 and got marked documents Exs.P-1 to P-
- 13 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
56. Defendant Nos.1 and 2 were examined as DWs.1 and
2 and examined two witnesses as DWs.3 and 4 and got
marked 412 documents as Exs.D-1 to D-412.
8. The trial Court on assessment of the oral and
documentary evidence, answered Issue No.1, 3, 4 and 13
partly in the affirmative and partly in the negative, Issue
Nos.2 and 7 to 11 in the affirmative, Issue Nos.5, 6 and
12 in the negative and Issue No.14 as per the final order.
The suit of the plaintiff is partly decreed. It is ordered and
decreed that the suit of the plaintiff in respect of Item
No.i, xiv, xviii, xix, xxi to xxiii in schedule-B, in respect of
all the properties in schedule-C and the properties in Item
No.viii to xiii and xvi in schedule-D is hereby dismissed.
The plaintiff is entitled for partition and separate
possession of 1/5th share out of ½ share in schedule-A
properties. The plaintiff is entitled for partition and
separate possession of 1/5th share in Item No.ii to xiii, xv
to xvii, xx and xiv in schedule-B properties. Further the
plaintiff is entitled for partition and separate possession of
- 14 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
1/5th share in Item No.i to vii, xiv, xv, xvii, xviii of
schedule-D properties. The suit in respect of VPC No.630
described in schedule-D is dismissed as the property
extract has not been produced. So also, the defendants
No.1 to 4 are having 1/5th share each out of ½ share in
schedule-A properties. So also, the defendants No.1 to 4
are having 1/5th share each in Item No.ii to xiii, xv to xvii,
xx and xiv in schedule-B properties. So also, the
defendants No.1 to 4 are having 1/5th share in Item No.i
to vii, xiv, xv, xvii, xviii of schedule-D properties. The
partition in landed properties shall be effected U/s.54 of
CPC. The partition in house and vacant sites shall be
effected through Court Commissioner.
9. Defendant Nos. 1 and 2 aggrieved by the
judgment and preliminary decree passed in the aforesaid
suit preferred appeal in RFA No.100009/2016. The plaintiff
aggrieved by the judgment and preliminary decree
dismissing the suit in respect of item Nos.i, xiv, xviii, xix,
xxi to xxiii in 'B' schedule properties and all properties in
- 15 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
'C' schedule and item Nos.viii to xiii and xvi in Schedule-D
properties and house property in VPC No.680 described in
Schedule-D property, has filed cross-objections in
Crob.No.100010/2017.
10. Heard the learned counsel for defendant Nos.1
and 2 and also learned counsel for the plaintiff.
11. The learned counsel for defendant Nos.1 and 2
submits that there was a prior partition in the year 1996
and the parties have acted upon and effected Mutation
Entry No.553. She submits that the trial Court has
committed an error in decreeing the suit of the plaintiff.
She also further submitted that defendant Nos.1 and 2
have purchased some of the properties out of their self
income. She submits that the trial Court has committed
an error in not properly considering Mutation Entry No.553
and further submitted that the plaintiff has been excluded
from the joint family possession of ancestral properties
and further, after the marriage of the plaintiff and
defendant No.4, they are residing in their respective
- 16 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
husband's house. She further submits that the trial Court
was justified in dismissing the suit of the plaintiff in
respect of the aforesaid properties. Hence, the judgment
and decree passed by the trial Court is arbitrary and
erroneous. Hence, on these grounds she prays to allow
the appeal filed by defendant Nos.1 and 2 and dismiss the
cross-objections filed by the plaintiff.
12. The learned counsel for the plaintiff submitted
that the trial Court has committed an error in dismissing
the suit in respect of the aforesaid properties. He submits
that the said properties were purchased out of the joint
family nucleus. Hence, the suit properties are the joint
family properties of the plaintiff and the defendants. He
submits that the trial court has committed an error in
dismissing the suit of the plaintiff. Hence, he prays to
dismiss the appeal and to allow the Cross-objection.
13. Perused the records and considered the
submissions of the learned counsel for the parties.
- 17 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
14. It is noticed by us that in the operative portion
of the impugned judgment, while granting shares in
Schedule-B of the suit schedule properties, item No.xxiv of
the said schedule, was wrongly typed as item No.xiv.
Hence, the same is read as item No.xxiv, henceforth.
15. The points that would arise for our
consideration are:
i) Whether the plaintiff proves that the suit
schedule properties are the joint family
properties of the plaintiff and the defendants?
ii) Whether the defendants prove that there was a
prior partition in the family in the year 1996 and
the same was acted upon and effected Mutation
entry No.553?
iii) Whether the plaintiff proves that the trial Court
has committed an error in dismissing the suit in
respect of Item No. Nos.i, xiv, xviii, xix, xxi to
xxiii in Schedule 'B' and in respect of all
properties in schedule 'C' and properties in item
Nos.viii to xiii and xvi in Schedule-D?
- 18 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
iv) Whether the defendants prove that the judgment
and decree passed by the trial Court is arbitrary
and erroneous?
v) What order or decree?
16. Point No.(i): The plaintiff in order to
substantiate her case, examined herself as PW-1 and she
has reiterated the plaint averments in her examination-in-
chief and in order to prove that the suit schedule
properties are the ancestral properties of the plaintiff and
the defendants, produced the records marked as exhibits.
Exs.P-1 to P-27 are the Record of Rights in respect of the
suit schedule properties, Ex.P-28 to 29 are the property
register cards, Exs.P.30 to P-48 are the Gram Panchayat
Tax paid extracts Exs.P-49 to P-53 are the Khata extracts
in respect of the house properties, Ex.P-54 is the Mutation
extract No.553 which discloses that there was an oral
partition between the plaintiff and the defendants. On the
basis of the oral partition, the defendant has submitted an
application to transfer the property which had fallen to his
- 19 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
share in the partition. On the strength of the application
submitted by defendant No.1, the names of the
defendants were entered in the Revenue Records as per
Ex.P-25. Further, during the course of cross-examination
of PW-1, it is elicited that she do not know which of the
properties have been purchased from the joint family
income including the boundaries of the properties and
further she is not able to state the names of the vendors,
year of purchase and total consideration paid for the
purchase of the properties and further also admitted that
from 1996 till today, defendant Nos.1 to 3 are residing
separately and defendant No.1 was a High School teacher,
defendant No.2 was doing Kirana business and defendant
No.3 was doing agricultural work independently. She also
admitted that defendant No.1 was getting salary for his
service and retired about six years back and also admitted
that defendant No.1 had purchased a site from
Sri.Sangameshwara High School Committee and it is
further elicited that defendant No.2 was working in a
kirana shop and thereafter he started kirana business
- 20 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
independently at Savadi village and defendant No.2 was
getting surplus income from his business and thereafter he
started ginning mill from his income and savings and
defendant No.2 raised loan from KSFC for establishing a
ginning mill and admitted that the ginning mill was
established in the year 1990 and defendant No.2 alone is
running the said mill. She also further admitted that in
the year 2002, the defendant started fertilizer and
pesticide shop and obtained insurance policy from LIC and
received maturity amount. Defendant No.2 purchased
land bearing Sy.No.309/1+2/2 measuring 7 acres 35
guntas of Savadi village by using the maturity amount of
LIC policy for consideration of Rs.1,78,000/- and also
admitted that defendant No.2 purchased Sy.No.220/3+4A
measuring 2 acres 27 guntas for consideration of
Rs.8,80,000/- by utilizing LIC policy amount and also
admitted that defendant No.2 received a sum of
Rs.2,09,228/- in the year 2000 and by utilising the said
amount, defendant No.2 purchased plot Nos.1438/1,
1438/2 and TMC No.419/1B/74 and 419/1B/79 and also
- 21 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
purchased plot Nos.1438/7 and 1438/2 for consideration
of Rs.6,000/- and admitted that the properties shown in
the sale deeds have been purchased after 1996 in the
name of different persons. From the perusal of the cross-
examination of PW-1, she has clearly admitted that the
properties at Item Nos.1, 14, 18, 19, 21 to 23 in Schedule
'B' and all properties in respect of Schedule 'C' and
property Item Nos.8 to 13 and 16 in Schedule 'D' are not
the ancestral properties of the plaintiff and the defendants
and further, the plaintiff has failed to prove that there was
nucleus in the joint family for purchasing the said items.
Except the oral testimony of PW-1, the plaintiff has not
examined any witness to establish that there was surplus
fund for purchasing the aforesaid items in the names of
different persons in the family.
17. The defendants have admitted that in regard to
property Item Nos.ii to xiii, xv to xvii, xx and xxiv in
Schedule 'B' and Item Nos.i to vii, xiv, xv, xvii and xviii of
Schedule 'D' are the ancestral and joint family properties.
- 22 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
The plaintiff has produced the documents in respect of the
aforesaid properties which disclose that the said properties
are the ancestral properties of the plaintiff and the
defendants.
18. In rebuttal, defendant Nos.1 and 2 were
examined as DWs.1 and 2 and they have reiterated the
written statement averments in their examination-in-chief
and contended that the aforesaid properties i.e. Item Nos.
Nos.i, xiv, xviii, xix, xxi to xxiii in Schedule 'B' and all
properties in Schedule 'C' and Item Nos.viii to xiii and xvi
in Schedule 'D' are purchased by their own earnings. In
order to prove that they have purchased the aforesaid
properties out of their self earnings, DW-1 has clearly
admitted in the course of his cross-examination that
defendant No.1 was working as a High School teacher and
was getting salary. He was retired from service and
defendant No.2 was initially working in a kirana shop and
subsequently, he started his own kirana shop, earned
money and purchased the properties and he was getting
- 23 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
surplus income from his business and started a ginning
mill and defendant No.2 has raised loan from KSFC for
establishing the ginning mill; defendant No.2 had LIC
policy and the said LIC policy matured and out of the
maturity amount received by defendant No.2, he has
purchased the said properties under registered sale deeds
and further in order to establish that the suit properties
are the self-acquired properties of defendant Nos.1 to 3,
the defendants have produced the records whereunder
Exs.D-1 to D-10 are Khata extracts, Exs.D-11 to D-29 are
the extract of house and open space, Exs.D-30 & D-31 are
the property register cards, Exs.D-32 to D-45 are the
record of Rights in respect of the suit schedule properties,
Exs.D-46 to D-78 are the Panchayat receipts, Exs.D-79 to
D-82 are the copy of the mutation extract, Ex.D-83 is the
resolution passed by the Gram Panchayat, Exs.D-84 to D-
88 are the receipts issued by APMC, Ex.D89 is the copy of
the letter issued by the KSFC which disclose that
defendant No.2 had obtained loan from KSFC for
establishing the ginning mill, Ex.D-90 is the reconveyance
- 24 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
deed executed by KSFC in favour of defendant No.2, Ex.D-
91 is the copy of the letter dated 14.03.2000 addressed by
defendant No.2 to the Labour Department intimating the
number of labourers working in the ginning mill, Exs.D-92
to D-382 are the Records of Right, Exs.D-383 & D-384 are
the Mutation extracts, Exs.D-385 & 386 are the
applications submitted to the Village Accountant, Exs.D-
387 & D-388 are the copy of the notices issued by the
Village Accountant, Exs.D-389 to D-404 are the original
registered Sale deeds which discloses that defendant No.2
purchased the properties under the said registered sale
deeds, Ex.D-405 is the Panchayat resolution, Ex.D-406 is
the LIC letters which disclose that defendant No.2 was
holding LIC policies and the same were matured and
defendant No.2 has received the maturity amount, Ex.D-
407 is the Registration Certificate of income tax, Ex.D-408
is the Registration certificate of VAT, Exs.D-409 is the
acknowledgement of the Agricultural Officer, Ex.D-410 is
the certificate issued by the Income Tax Officer, Exs.D-411
and D-412 are the passbooks. Further, in order to
- 25 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
establish that the defendants have purchased the
properties out of their own income, they have also
examined DWs.3 and 4.
19. From the perusal of the said records, it
discloses that defendant No.1 was working as a teacher in
High School and was getting salary and further defendant
No.2 was, initially, working in a kirana shop and
subsequently he started a kirana shop independently and
was getting surplus fund from the said business and out of
the said business earnings, defendant No.2 has purchased
the properties under the registered sale deeds and further
defendant No.2 has also established a ginning mill by
obtaining loan form KSFC and later on defendant No.2 has
repaid the loan amount and the KSFC has reconveyed the
said property to defendant No.2.
20. From the perusal of the records produced by
the parties, it discloses that the properties at item Nos.
Nos.i, xiv, xviii, xix, xxi to xxiii in Schedule 'B' and all
properties in Schedule 'C' and the properties in item
- 26 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
Nos.viii to xiii and xvi in Schedule 'D' are the self-acquired
properties of defendant Nos.1 to 3. The plaintiff has failed
to establish that the aforesaid schedule properties are the
joint family properties of the plaintiff and the defendants.
The plaintiff has established that Item Nos.ii to xiii, xv to
xvii, xx and xxiv in Schedule 'B' properties, item Nos.i to
vii, xiv, xv, xvii and xviii in Schedule 'D" properties are
ancestral joint family properties of the plaintiff and the
defendants. Insofar as the other remaining properties in
Schedule 'B' and 'D' and 'C' properties are concerned, the
plaintiff has failed to establish that they are acquired out
of joint family nucleus.
21. In view of the above discussion, we answer
point No.(i) partly in the affirmative and partly in the
negative holding that the plaintiff has proved that Item
Nos.ii to xiii, xv to xvii, xx and xxiv in Schedule 'B'
property, item Nos.i to vii, xiv, xv, xvii and xviii in
Schedule 'D' are the ancestral joint family properties of
the plaintiff and the defendants and the plaintiff has failed
- 27 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
to prove the rest other properties are the joint family
properties of the plaintiff and the defendants.
22. Point No.(ii): It is the case of the defendants
that there was prior partition in the year 1996 and the
parties have acted upon. In order to substantiate their
defence, the defendants, except producing M.E. No.553,
have not produced any other records. However, the
defendants, in order to prove prior partition, examined two
witnesses as DWs.3 and 4 who have deposed that there
was a partition effected between the parties in the year
1996 and further in the course of cross-examination, they
have admitted that they were not present at the time of
effecting partition between defendant Nos.1 to 3 and DW-
3 has admitted that till today, the family of defendant
Nos.1 to 3 are residing jointly and further the plaintiff has
denied about prior partition. From the evidence of DWs.3
and 4, they have clearly admitted that they were not
present at the time of partition effected between
defendant Nos.1 to 3. The defendants have failed to prove
- 28 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
that there was a prior partition between defendant Nos.1
to 3 and DW-3 has also clearly admitted in his cross-
examination that defendant Nos.1 to 3, till today, are
residing jointly.
23. From the perusal of the evidence of the
defendants, the defendants have failed to prove that there
was a prior partition between defendant Nos.1 to 3 and
further, except producing Mutation Entry No.553 and the
evidence of defendant Nos.3 and 4, does not help the
defendants in proving prior partition. The defendants have
failed to prove that there was a prior partition between
defendant Nos.1 to 3.
24. In view of the above discussion, we answer
point No.(ii) in the negative.
25. Point No.(iii): As we have already observed
in Point No.(i) that the plaintiff has failed to prove that
Item Nos.1, 14, 18, 19, 21 to 23 in Schedule 'B' and all
properties in Schedule 'C' and the properties in item Nos.8
- 29 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
to 13 and 16 in Schedule 'D' are the joint family properties
of the plaintiff and the defendants, the Trial Court, on the
basis of the oral and documentary evidence, has rightly
held that the plaintiff has failed to prove the aforesaid
properties are the joint family properties of the plaintiff
and the defendants. The trial Court has rightly dismissed
the suit in respect of the aforesaid items. Hence we
answer point No.iii in negative.
26. Point No.(iv): As we have already observed
that the plaintiff and the defendants are the members of
Hindu undivided family and there is no partition effected
between the plaintiff and defendants, the trial court
considering the oral and documentary evidence placed on
record, was justified in recording a finding that the
properties shown in Item Nos.ii to xiii, xv to xvii, xx and
xxiv in Schedule 'B' properties and item Nos.i to vii, xiv,
xv, xvii and xviii in Schedule 'D' properties are the
ancestral joint family properties of the plaintiff and the
defendants and rightly decreed the suit and awarded 1/5th
- 30 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
share to the plaintiff out of ½ share in Schedule 'A'
properties and defendant Nos.1 to 4 are entitled to 1/5th
share each out of ½ share in Schedule 'A' property; the
plaintiff is entitled to 1/5th share and so also defendants
Nos.1 to 4 are entitled to 1/5th share each in item Nos. ii
to xiii, xv to xvii, xx and xxiv in Schedule 'B' properties;
and the plaintiff is entitled for 1/5th share and defendant
Nos.1 to 4 are entitled to 1/5th share in item Nos.i to vii,
xiv, xv, xvii and xviii in Schedule 'D' properties. The trial
Court was justified in passing the impugned judgment.
Hence, we do not find any error in the impugned
judgment. In view of the above discussion, we answer
Point No.iv the negative.
27. Point No.(v): in view of the above discussion,
we proceed to pass the following:
ORDER
The appeal filed by the defendant Nos.1
and 2 and the Cross objections filed by the
plaintiff are dismissed.
- 31 -
NC: 2024:KHC-D:3507-DB
C/W RFA.CROB No. 100010 of 2017
The judgment and decree dated
02.11.2015, passed by the learned Senior Civil
Judge and JMFC, Ron, in O.S. No.15/2013 is
confirmed.
In view of dismissal of the appeal and
cross-objections, pending I.As., if any, does not
survive for consideration and are accordingly
disposed of.
No order as to the costs.
Sd/-
JUDGE
Sd/-
JUDGE
kmv
Ct:vh
