Karnataka High Court

Smt. Sunandamma W/O Nandigouda vs Sri. M.S. Budihal (Mohan S. Budihal) on 16 January, 2024

                                                  -1-
                                                             NC: 2024:KHC:2062
                                                           RFA No. 404 of 2011




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 16TH DAY OF JANUARY, 2024

                                               BEFORE
                                 THE HON'BLE MR JUSTICE C M JOSHI
                            REGULAR FIRST APPEAL NO. 404 OF 2011 (PAR)
                      BETWEEN:

                      SMT. SUNANDAMMA,
                      W/O NANDIGOUDA,
                      AGED ABOUT 66 YEARS,
                      OCC: AGRICULTURIST,
                      DOOR NO. 2581/2, MCC 'A' BLOCK,
                      4TH MAIN, NANDEESHWARA KRUPA,
                      CHURCH ROAD, DAVANGERE-577 002.
                                                                     ...APPELLANT
                      (BY SMT. SONA VAKKUND, ADVOCATE)

                      AND:

                      1.     SRI M.S. BUDIHAL (MOHAN S. BUDIHAL),
                             S/O SHIVANAGOUDA,
                             AGED ABOUT 64 YEARS,
Digitally signed by
VIJAYALAKSHMI                JYARAKATTE, CHANNAGIRI TALUK-577 213.
BN
Location: High               SINCE DEAD BY HIS LR'S
Court of
Karnataka
                      1(A) SMT. AMRUTHAMMA,
                           W/O MOHAN BUDIHAL,
                           AGED ABOUT 67 YEARS.

                      1(B) SRI RAVIKUMAR B.M,
                           S/O MOHAN BUDIHAL,
                           AGED ABOUT 45 YEARS.
                           (AMENDMENT CARRIED OUT AS PER
                           THE ORDER DATED 21.11.2023)
                           -2-
                                       NC: 2024:KHC:2062
                                     RFA No. 404 of 2011




2.   SRI BASAVARAJ S BUDIHAL
     SINCE DEAD BY HIS LR'S

2(A) MANJULAMMA,
     W/O LATE BASAVARAJ,
     AGED ABOUT 55 YEARS,
     OCC: HOUSEHOLD,
     R/O NANDITAVARI VILLAGE,
     HARIHAR TALUK-577 601.

2(B) KARTHIK,
     S/O LATE BASAVARAJ,
     AGED ABOUT 25 YEARS,
     R/O NANDITAVARI VILLAGE,
     HARIHAR TALUK- 577 601.

2(C) ASHWINI,
     D/O LATE BASAVARAJ,
     AGED ABOUT 23 YEARS,
     R/O NANDITAVARI VILLAGE,
     HARIHAR TALUK-577 601.

3.   SRI MALLIKARJUN S BUDIHAL,
     S/O SHIVANAGOUDA,
     AGED ABOUT 60 YEARS,
     ASST. EXEC. ENGINEER,
     IRRIGATION DEPT.,
     IRRIGATION QUARTERS,
     SHIVAMOGA ROAD,
     HARIHAR-577 601.

4.   SRI ASHOK.S.BUDIHAL,
     S/O SHIVANAGOUDA,
     AGED ABOUT 56 YEARS,
     ASST. EXEC. ENGINEER,
     DOOR NO. 1706/02, 3RD MAIN, 4TH CROSS,
     VINOBHANAGAR, DAVANGERE-577 002.
                           -3-
                                       NC: 2024:KHC:2062
                                     RFA No. 404 of 2011




     SINCE DECEASED BY HIS LR'S

4(A) SMT. SHOBHA,
     W/O LATE ASHOK BUDIHAL,
     R/O HOUSE NO.221,
     SHIVASAVITRI NILAYA,
     NIJALINGAPPA LAYOUT, 2ND MAIN,
     3RD CROSS, R.V PUBLIC SCHOOL ROAD,
     DAVANAGERE- 577 004.
     (AMENDMENT CARRIED AS PER ORDER
     DATED 17.11.2022 & AMENDMENT
     CARRIED ON 28.11.2022)

5.   SMT. SANGAMMA,
     W/O C.S BUDIHAL,
     AGED ABOUT 55 YEARS,
     AGRICULTURIST,
     NANDITAVARE VILLAGE,
     HARIHAR TQ.-577 601.

6.   SRI SUNIL,
     S/O S BUDIHAL,
     AGED ABOUT 35 YEARS,
     NANDITAVARE VILLAGE,
     HARIHAR TQ.-577 601.

7.   ANNAPOORNA,
     D/O SHIVANAGOUDA,
     AGED ABOUT 63 YEARS,
     D. NO. 1706/1, BASAVA NILAYA,
     3RD MAIN, 4TH CROSS,
     VINOBHANAGAR,
     DAVANGERE-577 002.

8.   SMT. INDIRA,
     W/O MALLIKARJUNA S BUDIHAL,
     AGED ABOUT 56 YEARS,
                             -4-
                                           NC: 2024:KHC:2062
                                        RFA No. 404 of 2011




     OCC: HOUSEHOLD,
     NO. 4021, ANNAPURNA NILAYA,
     M.C.C.B BLOCK,
     DAVANGERE-577 002.
                                            ...RESPONDENTS
(BY SRI PRAKASH S HURAKADLI, ADVOCATE FOR R1 (A & B);
    SRI D.P MAHESH, ADVOCATE FOR R3, R4(A), R7 & R8;
    R-2(A), R5, R6 ARE SERVED, BUT UNREPRESENTED;
    NOTICE TO R2 (B & C) ARE HELD SUFFICIENT V/O DATED
    26.07.2011)

     THIS RFA IS FILED U/S 96, OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 04.11.2010 PASSED IN
O.S.27/2009 (OLD NO.379/2001) ON THE FILE OF THE II-
ADDL. DISTRICT JUDGE, DAVANAGERE, DISMISSING THE SUIT
FOR PARTITION.

     THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

Being aggrieved by the judgment and decree passed

in O.S.No.27/2009 (Old No.379/2001) dated 04.11.2010

by the learned II Additional District Judge, Davanagere,

the plaintiff has approached this Court in appeal.

2. The parties would be referred to as per their

ranks before the trial Court for the sake of convenience.

3. Brief facts of the case are as below:

NC: 2024:KHC:2062

The plaintiff filed a suit for partition of item No. 1 to

9 of the suit schedule properties and to allot her 1/8th

share in the same by metes and bounds with mesne

profits. The plaintiff contended that her father

Shivanagouda had five sons and two daughters through

his wife Savithramma. All the suit schedule properties

were the self acquired properties of Shivanagouda, who

died about 13 years prior to the filing of the suit leaving

behind him the plaintiff and the defendants as legal heirs.

After the death of Shivanagouda, the plaintiff continued to

enjoy the suit schedule properties with the defendants as

joint family member till the date of death of her mother

Savithramma on 23-06-2001. She had demanded her

share in the suit schedule properties, but the defendants

refused to effect the partition and therefore, she was

constrained to file the suit for partition.

4. Inspite of service summons, defendants No.

1,5 and 6 did not appear before the trial Court and they

were placed exparte. The other defendants No. 2 to 4, 7

NC: 2024:KHC:2062

and 8 appeared before the trial Court through their

counsel and filed their written statements. LRs. of

defendant No.2 and defendant No.7 and defendant No.8

filed their separate written statement.

5. The defendants admitted the relationship

between the plaintiff and the defendants and the death of

Shivanagouda about 13 years prior to filing of the suit.

They also admitted that Savithramma died on 23-06-2001.

However, they denied that the suit schedule properties

were the self acquired properties of late Shivanagouda.

They contended that the some of the suit schedule

properties were the self acquired properties of

Shivanagouda and some other are the ancestral properties

acquired by him. They contended that during the life

time of Shivanagouda, on 11-6-1979 there was a partition

in the ancestral properties as well as the self acquired

properties under the registered partition deed dated

11-6-1979 and that item Nos. 2,3 and 4 of the plaint

schedule were fallen to the share of defendant Nos. 2,3

NC: 2024:KHC:2062

and 4 respectively. Item No.6 of the plaint schedule

property had fallen to the share of late Shivanagouda and

on 25-3-1992 he executed a Will bequeathing item No.6 of

suit schedule property in favour of his wife Savithramma.

They further contended that item No.1 and 8 of the suit

schedule properties were given to their mother

Savithramma by her father and brothers and therefore,

they are the Stridhana properties of Savithramma.

Therefore, they contended that Savithramma, at the time

of her death was the holder of the title in respect of item

Nos. 1,6 and 8 of the suit schedule properties and held the

same in her exclusive capacity. They also contended that

the deceased Savithramma executed a Will on 21-6-2001

and bequeathed all her properties i.e. item Nos. 1,6 and 8

in favor of defendants No.1 and 7. They also contended

that item No.5 of the suit schedule property was the

exclusive property of defendant No.8, who is the wife of

defendant No.3. They contended that the remaining

properties are the undivided family properties of the

NC: 2024:KHC:2062

parties and the plaintiff can claim her alleged right in the

same.

6. On the basis of the above pleadings, the trial

Court framed the following issues and additional issue for

its consideration:

"1. Whether plaintiff proves that still schedule item No.1 to 9 of the properties are joint family properties of herself and defendants and that she would be entitled for 1/7th share in schedule properties?

2. Whether Legal representatives of defendant No.2 and defendant No.7 prove that earlier to 11.6.1979 properties had several ancestral and self acquired properties?

3. do they prove that there was a partition by metes and bounds in respect of these properties on 11.6.1979 between propositus and his sons?

4. Do they further prove that in the said partition item No.2 of plaint schedule property fallen to the share of defendant No.2, item No.3 to defendant No.3, item No.4 to defendant No.4, item No.6 was fallen to the share of propositus and later propositus bequeathed the same in favour of his wife Smt. Savithramma by way of Will dtd. 25.3.1992?

NC: 2024:KHC:2062

5. Do they further proves that item No.1 and 8 of plaint schedule were the absolute properties of Savithramma and she had bequeathed item No.1 and 8 properties in favour of defendant No.7 under a Will dtd. 21.6.2001 and defendant no.7 is now the owner of item No.1, 6 & 8 properties?

6. Do they prove that plaintiff knows all these facts but being puppet in the hands of her husband has filed this false suit?

7. whether suit in the present form is maintainable?

8. whether suit is within limitation?

9. Whether plaintiff has properly valued her suit and paid proper Court Fee?

10. Is plaintiff entitled for the relief of partition and separate possession of her alleged 1/7th share in suit properties as prayed?

11. What order or Decree?

Additional Issue

1. Whether defendant No.8 proves that item No.5 of the schedule property has been her exclusive property, as such she is not liable to answer the plaintiff's claim in the suit, therefore, item No.5 of schedule property is not liable for partition?"

- 10 -

NC: 2024:KHC:2062

7. The plaintiff deposed before the trial Court as

PW1 and Exhibits P1 to P17 were marked in evidence. On

behalf of the defendants DWs.1 to 3 were examined and

Exhibits D1 to D20 were marked in evidence.

8. After hearing the arguments by both the sides,

the trial Court answered issue Nos. 1, 7,8, and 10 in the

negative and issue Nos. 2,3, 9 and additional issue in the

affirmative and issue No. 4 partly in the affirmative and

issue No.5 partly in the affirmative and partly in the

negative and by the impugned judgment, dismissed the

suit of the plaintiff.

9. The said judgment and decree is challenged

by the plaintiff in this appeal. The appellant contended

that the trial Court failed to appreciate the position of law

and proceeded to observe that the plaintiff is entitled for a

share in the properties belonging to her mother i.e. item

Nos. 1,6 and 8. The trial Court held that the Wills executed

by Shivanagouda as well as Savithramma were not proved

and therefore, there was no impediment for the trial Court

- 11 -

NC: 2024:KHC:2062

to hold and grant share in the properties which are

ancestral properties and also the properties held by

Savithramma as the plaintiff happens to be the Class I heir

of Savithramma.

10. On issuance of notice, respondents/defendants

No. R1(A and B), respondent No. 3, R4(A), R7 and R8

have appeared before this Court through their respective

counsel. Though respondents No.2(A), R5 and R6 were

served, but they remained unrepresented and service of

notice to respondents No.2(B and C) are held sufficient.

11. On admitting the appeal, the trial Court records

have been secured. The arguments by learned counsel for

appellant was heard. Learned counsels appearing for

respondents did not appear to advance their arguments

even though ample opportunity was granted to them.

12. Learned counsel appearing for the appellant

would submit that the position of law which prevailed at

the time of the judgment in view of the decision in the

- 12 -

NC: 2024:KHC:2062

case of Vineeta Sharma Vs. Rakesh Sharma1 was not

considered by the Trial Court. She submits that item

Nos.1,6, 8 and 9 of the plaint schedule are amenable for

partition and the trial Court observes the same in para 31

of its judgment. However, the Trial Court has dismissed

the suit of the plaintiff on the ground that she was born

prior to 1956 and therefore, she is not entitled for a

partition. It is submitted that in the advent of amendment

brought to Section 6 of the Hindu Succession Act, the

plaintiff is also a coparcener in the joint family and

therefore, the position has changed. Further, she also

submitted that item Nos. 1,6, 8 and 9 are the properties

held by Savithramma and Shivanagouda in their individual

capacity and therefore, on their demise, she being the

Class I heir is entitled for the partition. This aspect was

totally over looked by the trial Court and therefore, she

submits that the trial Court could not have dismissed the

suit of the plaintiff.

(2020) 9 SCC 1

- 13 -

NC: 2024:KHC:2062

13. The only question that would arise is, whether

the trial Court was justified in dismissing the suit of the plaintiff

on the ground that she was born prior to 1956 i.e. before the

amendment of Hindu Succession Act, 1956?

14. The trial Court in the impugned judgment has

observed and recorded its finding that item No.5 of the

suit schedule property was belonging to defendant No.8

and she has obtained it from her father, even prior to her

marriage. Therefore, this observation of the trial Court is

based on the documentary evidence available on record.

This aspect is not assailed by the appellant herein.

15. The perusal of the records would reveal that as

per the Deed of Partition produced at Ex.D1, item Nos.2,3

and 4 had fallen to the share of the defendant No.2,3 and

4 and therefore, those properties are not amenable for

partition. Similarly, half portion of item No.7 of the

property was gifted to the plaintiff and she has sold the

same to defendant No.7. There is elaborate discussion in

- 14 -

NC: 2024:KHC:2062

this regard by the trial Court. Therefore, no fault can be

found with respect to the said finding.

16. The trial Court also holds that the Will executed

by Shivanagouda in favour of Savithramma and the Will

executed by Savithramma in favour of defendant Nos. 1

and 7 are not proved. This fact is also not disputed by the

learned counsel for the appellant. The perusal of the

evidence available on record also shows that the attesting

witnesses of these Wills were not examined by the

defendants and therefore, the requirement of Section 68

of the Indian Evidence Act and Section 63(c) of the Indian

Succession Act are not complied. Under these

circumstances, the finding of the trial Court that the Wills

are not proved has to be upheld.

17. In para 31 of the judgment, the trial Court has

observed as below:

"31. In the absence of Will by the deceased Shivanagowda as per Ex.D.4 in respect of item No.6 of the schedule property and in the absence of any such will as per Ex.D.7 in favour of defendant No.7 by late

- 15 -

NC: 2024:KHC:2062

Savithramma, item No.1, 6 and 8 of the schedule properties remained for partition among the sons of late Shivanagowda. The plaintiff who has born earlier to

18.6.1956 cannot claim her share by way of partition in those properties also. Accordingly, her claim in the suit is liable to be dismissed in toto. On the basis of the discussion made above, I answer this issue partly in the affirmative and partly in the negative."

18. It is relevant to note that item Nos.1 and 8 are

the self acquired properties of Savithramma. There is no

dispute that they are the Stridhana Properties of

Savithramma. Item No.6 of the suit schedule was the

property which has fallen to the share of Shivanagouda.

After the demise of Shivanagouda and Savithramma,

obviously, these properties have to devolve upon all the

legal heirs of Shivanagouda and Savithramma. Therefore,

there cannot be any dispute that the plaintiff is entitled for

the share in Item Nos. 1,6 and 8 of the suit schedule.

19. Sofar as item No.9 is concerned, it is the open

space which has been kept for the use of the members of