Karnataka High Court
Ramesh @ Raju S/O Revanasiddappa ... vs Smt.Sudha W/O Gurusiddappa @ Balasaheb ... on 12 January, 2024
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NC: 2024:KHC-D:764
RSA No. 100384 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.100384/2016(PAR)
BETWEEN:
RAMESH @ RAJU
S/O. REVANASIDDAPPA MORABAD,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: STATION ROAD,
KUNDGOL, DIST: DHARWAD.
...APPELLANT
(BY SRI VYAS DESAI, ADVOCATE FOR
SRI JAGADISH PATIL, ADVOCATE)
AND:
1. SMT. SUDHA
W/O. GURUSIDDAPPA @ BALASAHEB MORABAD,
AGE: 41 YEARS, OCC: HOUSEHOLD WORK,
R/O: C/O: MALLESHAPPA MADALLI,
R/O: BARADWAD, TAL: KUNDGOL,
DIST: DHARWAD.
Digitally
signed by 2. SMT. PARVATEWWA
ROHAN
HADIMANI W/O. REVANASIDDAPPA MORABAD,
T AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O: KUNDGOL, DIST: DHARWAD.
3. SRI SHIVASHANKAR @ ANNASAHEB
S/O. REVANASIDDAPPA MORABAD,
AGE: 45 YEARS, OCC: LEGAL PRACTITIONER,
R/O: STATION ROAD, KUNDGOL,
DIST: DHARWAD.
4. SMT. BHARATI W/O. PRABHU KARIYAPPANNAVAR,
AGE: 41 YEARS, OCC: HOUSEHOLD WORK,
R/O: C/O: PRABHU KARIYAPPANNAVAR,
T-5/272, KPS COLONY,
SHANKTINAGAR - 584 170.
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RSA No. 100384 of 2016
5. GAYATRI REALTORS AND DEVELOPERS
BY ITS CHAIRMAN AND MANAGING DIRECTOR
SRI B. R. NAREGAL,
AGE: 85 YEARS, OCC: BUSINESS,
R/O: KHADEBAZAR, BELAGAVI.
6. SMT. RENUKA @ SOUMYA
W/O. SHIVANAND GODI,
AGE: 39 YEARS, OCC: HOUSEHOLD,
R/O: BAGALKOT.
7. SRI FAZAL ADAM SHAIKH
AGE: MAJOR, OCC: BUSINESS,
R/O: H.NO: 4303, KHADAK GALLI,
BELAGAVI.
...RESPONDENTS
(BY SRI CHETAN T. LIMBIKAI, ADVOCATE FOR R1;
R2, R6 AND R7 ARE SERVED;
NOTICE TO R3 TO R5 ARE DISPENSED WITH)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE
JUDGMENT AND DECREE DATED 07.01.2011 PASSED IN
R.A.NO.26/2008 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE,
BELAGAVI, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 23.11.2007 PASSED IN
O.S.NO.93/2003 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
SR.DN BELAGAVI, PARTLY DECREEING AND PARTLY DISMISSING
THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS REGULAR SECOND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 100384 of 2016
JUDGMENT
Defendant No.4 in the original suit has filed this regular
second appeal challenging the judgment and decree dated
23.11.2007 passed in O.S.No.93/2003 by the Principal Civil
Judge Sr.Dn., Belgaum (hereinafter referred to as the 'trial
Court') and judgment and decree dated 07.01.2011 in
R.A.No.26/2008 by the Principal District Judge, Belgaum
(hereinafter referred to as the 'First Appellate Court') by
which the Trial Court held that the plaintiff was entitled to
1/6th share in Sy.No.320 of Kundagol and 1/5th share in the
shops in 'C' schedule properties which was modified by the
First Appellate Court to 7/36th share in all the suit schedule
properties.
2. The suit in O.S.No.93/2003 was filed by the
daughter against her mother and brothers claiming partition
and separate possession of the suit schedule properties
which according to her were the joint family ancestral
properties. Defendant No.4/ appellant herein filed a written
statement contending that the plaintiff was not a member of
the joint family. He claimed that there was a division
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pursuant to a compromise decree in O.S.No.74/1995 before
the Civil Judge (Sr. Dn.), Belgaum and that the plaintiff had
no right, title or interest over the 'C' schedule properties. He
claimed that the plaintiff had no share even in the 'B'
schedule properties as a suit in O.S.No.9/2001 was going on
between defendant Nos.1 and 2. He therefore contended
that the suit for partition was not maintainable.
3. Defendant No.6 filed a written statement
contending that defendant No.1, husband of defendant No.2
and defendant Nos.3 and 4 had executed a lease agreement
dated 30.01.1997 following which, it had developed a
multistoried building and had allotted shops to the share of
the husband of defendant No.2 and to defendant Nos.3 & 4
as per the terms of the agreement. Therefore, it claimed that
the suit is not maintainable against it. Based on these
contentions, the trial Court framed the following issues:
1. Whether the plants that the suit schedule B and C
properties are the joint family properties of the plaintiff and
Defendants 1 to 5?
2. Whether the plaintiff proves that she and defts 1 to 5 are
possession and enjoyment of the suit schedule B and C
properties?
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3. Whether the plaintiff proves that she has got 7/36th share
in the in the schedule "B" & "C" properties?
4. Whether the plaintiff proves that the suit property at
Belgaum City is possession of Defendant no.6 as lessee
and she has to obtain by working out her right as lessor to
the extent of her share?
5. Whether the plaintiff proves that the compromise decree
dtd 20-4 1995 in OS NO. 74/95 is not binding on her?
6. Whether the Defendants prove that the partition already
taken place in respect of suit schedule B and C properties
during the life time of propositus and the plaintiff had the
knowledge of the same?
7. Whether the Defendant no 6 proves that the alleged lease
deed operates as an estoppel as against the plaintiff and
defts no 1 to 5?
8. Whether Defendant no. 6 proves that he handed over the
actual physical possession of the commercial shops as per
annexure "C" Whether to the defts 2 and 4 as per the
resolution mentioned in schedule "B" and they are in actual
physical possession and enjoyment of the said shops?
9. Whether the defts prove that the suit is bad for non joinder
necessary parties?
10. Whether the defts prove that the suit is bad for non
inclusion of all the properties?
11. Whether the defts prove that the suit is barred by
limitation?
12. Whether the defts prove that the plaintiff has not properly
valued the suit properties and the court fee paid is
insufficient?
13. Whether the plaintiff is entitled for partition and separate
possession of her 7/36th share in the suit schedule B and C
properties as sought for?
14. Whether the defts are entitled for compensatory costs?
15. What decree or order?"
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4. The husband of the plaintiff was examined as
PW1 and he marked Exs.P1 to P8. Defendant No.2 was
examined as DW1 and a representative of defendant No.6
was examined as DW2 and marked Exs.D1 to D26.
5. Based on the oral and documentary evidence, the
trial Court held that the plaintiff was given in marriage on
28.04.1996 i.e., after the Hindu Succession (Karnataka)
Amendment Act, 1994 came into force. It held that
Sy.No.320 fell to the share of the father of the plaintiff while
Sy.Nos.338 and 500/1+2 totally measuring 14 guntas were
allotted to the share of the grandmother of the plaintiff and
that after her death, it devolved upon her grandchildren i.e.,
the husband of defendant No.2, defendant Nos.3 and 4.
Therefore, the property bearing Sy.Nos.338 and 500/1+2
were not the ancestral properties. Therefore, the father of
the plaintiff had no right, title or interest in the land bearing
Sy.Nos.338 and 500/1+2.
6. The trial Court held that the plaintiff was entitled
to 1/6th share only in Sy.No.320, likewise it held that the
properties bearing Sy.Nos.520/1B, 520/2+3, 521/1+2 were
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the properties of Revanasiddappa who divided them amongst
his three sons namely the defendant Nos.2, 3 and 4 and the
revenue entries evidencing the division was accepted.
Therefore, the trial Court restricted the share of the plaintiff
only to the land bearing Sy.No.320 of Kundgol Village and
1/5th share in the shops at Sl.Nos.9, 11, 12, 21 and 23 built
on the suit 'C' properties.
7. In an appeal filed by the defendant No.4, the trial
Court noticed that the plaintiff being a corparcener by birth
was entitled to 1/6th share in all the suit properties in view of
Section 6 of the Hindu Succession (Amendment) Act, 2005.
Consequently, the First Appellate Court held that the plaintiff
was entitled to an equal share along with the defendants.
The First Appellate Court noticed that defendant No.1 was
the wife of the propositus and therefore, held that the
plaintiff was entitled to 7/36th share in the suit schedule
properties. Being aggrieved by the said judgment and
decree, defendant No.4 has filed this regular second appeal.
8. Learned counsel for defendant No.4 submitted
that when Ex.D10 was sufficiently proved in terms of which
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the properties bearing Sy.Nos.500/1+2, 520/1B, 520/2+3,
521/1+2 and 338 were partitioned, there is no question of
allotting any share to the plaintiff in those properties.
9. The fact that all the suit properties were the
properties lying in the coffers of the joint family is not much
in dispute. Mere entries in the mutation do not deprive the
substantive right of the plaintiff in the suit properties. The
suit is filed in the year 2003 by the plaintiff claiming
undivided 1/6th share in the suit schedule properties. The
trial Court could not have negatived the claim of the plaintiff
based on the mutation entries which indicated that the
revenue records of certain properties were made over to the
names of defendant Nos.2, 3 and 4. Once the properties
were established to be the properties belonging to the joint
family and the plaintiff being entitled to an undivided share
as a coparcener, was entitled to an equal share as held by
the Hon'ble Apex Court in the case of VINEETA SHARMA
VS. RAKESH SHARMA AND OTHERS1. In that view of the
matter, there is no error committed by the First Appellate
(2020) 9 SCC 1
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Court in declaring that the plaintiff is entitled to 7/36th share
in the suit schedule properties warranting interference.
Consequently, no substantial question of law arises for
consideration and hence the appeal lacks merits and is
dismissed.
SD/-
JUDGE
RH
CT-ASC
