Karnataka High Court
Chandrakanth And Anr vs Gayatri on 11 January, 2024
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NC: 2024:KHC-K:489
RFA No. 200031 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR FIRST APPEAL NO. 200031 OF 2022
(PAR/POS)
BETWEEN:
1. CHANDRAKANTH
S/O BHIMANNA NAGESH,
AGE: 35 YEARS,
OCC.COOLIE,
2. PRIYA W/O CHANDRAKANTH,
AGE: 30 YEARS,
OCC.HOUSEHOLD,
BOTH R/O H.NO.9-4-21,
KHAJI COLONY,
GANDHI GUNJ ROAD,
DIST. BIDAR-585401.
Digitally
signed by ...APPELLANTS
SACHIN
Location:
HIGH COURT
OF
(BY SRI.SRINIVAS B.JOSHI, ADVOCATE)
KARNATAKA
AND:
GAYATRI D/O BHIMANNA NAGESH,
(W/O UMESH),
AGE : 26 YEARS, OCC. HOUSEHOLD,
R/O 9-4-21, KHAJI COLONY,
GANDHI GUNJ ROAD,
BIDAR-585401.
...RESPONDENT
(BY SRI. RAVI B. PATIL, ADVOCATE)
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RFA No. 200031 of 2022
THIS RFA IS FILED UNDER ORDER XLI RULE 1 R/W
SECTION 96 OF CPC, PRAYING TO ALLOW THE APPEAL AND TO
SET-ASIDE THE JUDGMENT AND DECREE PASSED BY THE
PRL.SENIOR CIVIL JUDGE AND CJM, BIDAR IN O.S.NO.19/2019
DATED 22.09.2021 AND DISMISS THE SUIT OF THE PLAINTIFF,
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the Appellants/defendant No.1 and 2
are assailing the judgment and decree dated 22.09.2021
in O.S.No.19/2019 on the file of Principal Senior Civil
Judge and Chief Judicial Magistrate, Bidar, decreeing the
suit of the plaintiff holding that the plaintiff is entitled for
half share in the suit schedule property.
2. For the sake of convenience, the parties in the
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. The plaint averments are that plaintiff and
defendant No.1 are the children of Bhimanna Nagesh and
they constitute the Joint Hindu Family. It is the case of the
plaintiff that the subject matter of the suit property is
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belong to the mother (Vijayalakshmi) of plaintiff and
defendant No.1 and she died during the year 2014 leaving
behind the plaintiff and defendant No.1 as the legal heirs
to succeed to the estate left by their mother and therefore
the plaintiff made a claim for half share in the schedule
property and the same was denied by the defendant No.1
and as such, the plaintiff filed O.S.No.19/2019 on the file
of trial Court seeking relief of partition and separate
possession in respect of suit schedule property.
4. After service of notice, the defendants entered
appearance and filed written statement, admitting the
relationship with the plaintiff. The defendant No.2 is the
wife of defendant No.1.
5. It is the specific contention of the defendants
that the schedule property was purchased by the father of
defendant No.1 and on his demise, it was transferred to
the mother of defendant No.1 and the defendant No.1
continued as owner in possession of the suit property. The
marriage of plaintiff was performed 15 years ago and she
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is residing along with her husband at Latur and therefore
as the plaintiff herself knowledge about the transfer of the
property in the name of defendant Nos.1 and 2, after the
demise of mother of defendant No.1, for which the plaintiff
has not filed objection before the CMC, Bidar and that
apart, the plaintiff has given no objection for change of
revenue records in the name of defendant Nos.1 and 2
and as such sought for dismissal of the suit.
6. The trial Court on the basis of the pleadings,
framed the following issues for its consideration :-
i) Whether the plaintiff proves that, she
and defendant no.2 are the members of
Hindu Undivided Family and suit
schedule property is their joint family
property and available for partition ?
ii) Whether the defendants prove, there
was already a oral partition held in the
year 2013 as contended in para no.14 of
their written statement ?
iii) Whether the plaintiff is entitled for the
reliefs as prayed for ?
iv) What order or decree ?
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7. In order to establish their case, plaintiff has
examined three witnesses as PW.1 to PW.3 and got
marked six documents and same were marked as Ex.P.1
to Ex.P.6. Defendants have examined three witnesses as
DW.1 to DW.3 and got marked two documents as Ex.D1
and Ex.D2.
8. The trial Court after considering the material on
record, vide its judgment and decree dated 22.09.2021,
decreed the suit of the plaintiff holding that the plaintiff is
entitled for half share in the suit schedule property. Being
aggrieved by the same, the defendants have preferred this
Regular First Appeal. The appellants have filed application
in I.A.No.1/2023 under Order XLI Rule 27 of Code of Civil
Procedure and sought to produce certain documents as
additional evidence in the appeal.
9. I have heard learned counsel Sri Srinivas
B.Joshi, appearing for the appellants sand Sri Ravi B.Patil,
learned counsel appearing for the respondent.
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10. Sri Srinivas B.Joshi learned counsel appearing
for the appellants submitted that the Trial Court has not
properly appreciated the fact that after the demise of the
mother of defendant No.1, the defendants have continued
to be in possession of the schedule property in question
and the plaintiff has executed an agreement during the life
time of the mother of defendant No.1 that she will not
claim any share in the property in question and also the
plaintiff has addressed a letter dated 23.06.2017 to the
CMC, Bidar to change the khata in respect of the subject
matter in favour of defendant No.1 as produced at
documents in I.A.No.1/2023 and the documents would
establish the fact that the plaintiff relinquished the right in
respect of the property in question and as such the finding
recorded by the trial Court is non est and requires to be
interfered with in this appeal.
11. Per contra, Sri Ravi B.Patil, learned counsel
appearing for the respondent/plaintiff sought to justify the
impugned judgment and decree passed by the trial Court
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and contended that as the defendants have failed to
establish that the registered document said to have been
executed by the plaintiff in favour of defendant No.1,
relinquishing right of the plaintiff in favour of defendant
No.1 and therefore, as the subject matter of the schedule
property is the joint family property of plaintiff, defendant
No.1 and mother - Vijayalakshmi and as such he sought to
justify the judgment and decree passed by the trial Court.
12. In the light of the submission made by the
learned counsel appearing for the parties, the following
points for consideration arises in this appeal :
i) Whether the defendants have proved the
severance of the share of the plaintiff
through a registered relinquish deed ?
ii) Whether the trial Court has committed
any error in decreeing the suit holding
that the plaintiff is entitled for half share
in the schedule property ?
iii) What order or decree ?
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13. In the light of the submission made by the
learned counsel appearing for the parties, the relationship
between the parties is not in dispute. In order to
understand the relationship between the parties, the
genealogical tree is produced as under :-
Vijayalaxmi (Died in 2014)
Chandrakanth Gayatri
(D1) (plaintiff)
Priya
(D2)
14. It is not in dispute with regard to relationship of
parties and also there is no dispute that the property
belong to the mother of the plaintiff and defendant No.1.
On careful examination of the deposition of PW.1, it would
indicate that there is no partition in the family. However,
the defendants have pleaded in the written statement
regarding oral partition during the year 2013 and in this
regard, the Trial Court has farmed issue No.2 and the
burden lies on the defendants to prove the alleged oral
partition said to have been held between the plaintiff and
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defendant No.1. However, neither cogent reasons nor
material document has been produced by the defendants
to establish oral partition except stating that certain
movable gold and silver articles have been given to the
plaintiff during her marriage. Needless to say that the
defendants have not produced the relinquishment deed
said to have been executed by the plaintiff in favour of
defendant No.1. In that view of the matter, I am of the
view that the Trial Court is justified in decreeing the suit to
an extent of half share in favour of the plaintiff.
15. Insofar as the additional documents produced
by defendant Nos.1 and 2 in application I.A.No.1/2023 and
on careful examination of those documents are referred to
as to no objection given by the plaintiff to the competent
authorities for change of khata and another document (nil
- date) styled as 'M¥ÀàAzÀ ¥Àv'Àæ , wherein it is stated that the
appellants have stated that plaintiff will not claim any
property from her brother-defendant No.1. Undisputably
those documents are unregistered documents. In that that
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view of the matter, taking into consideration the law laid
down by the Hon'ble Apex Court in the case of Yellapu
Uma Maheswari & Anr vs Buddha Jagadheeswararao
& Ors.1, wherein the relinquish deed is requires to be
compulsorily register document and in the absence of the
same, the appellants/defendants have not made out case
for interference in this appeal. The point for consideration
referred to above would be answered in favour of the
plaintiff as the defendants failed to establish their case
that the defendants got the property from the plaintiff
through a registered document.
16. In that view of the matter, the judgment and
decree passed by the trial Court in O.S.No.19/2019 is
hereby confirmed. Accordingly, the appeal fails.
17. Since, the appellants have not made out a case
for accepting the I.A.No.1/2023, in the light of the
judgment rendered by this Court in the case of
(2015) 16 SCC 787
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Shantaveerappa vs. K.N.Janaradhanachari2, as the
trial Court has decreed the suit after appreciating the
entire material on record and the defendants have failed to
establish their right to claim the schedule property in the
absence of registered relinquishment deed said to have
been made by the plaintiff, this Court is of the opinion
that, the defendants have not made out a case for
considering the application filed by the appellants in
I.A.No.1/2023 and the documents referred to in the said
application would not change the merits of the case, even
if those documents are accepted, as those documents are
unregistered as required under law. In light of the
observations made above, accordingly, I.A.No.1/2023 is
dismissed. Consequently, suit is decreed holding that the
plaintiff is entitled for a half share in the schedule
property.
18. In the result, the appeal is dismissed.
2007 Kar 1127
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In view of dismissal of the appeal, I.A.No.1/2021 and
I.A.No.2/2021 do not survive for consideration and are
accordingly dismissed.
Sd/-
JUDGE
SN
