Karnataka High Court
Basappa S/O Dyamanagouda Pujar @ ... vs Ambamma D/O Timmangouda Pujar @ Hanumar on 16 January, 2024
-1-
RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
& RSA NO. 5419/2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
REGULAR SECOND APPEAL NO. 5954/2010
C/W
REGULAR SECOND APPEAL NO. 5418/2010
AND
REGULAR SECOND APPEAL NO. 5419/2010
IN RSA NO. 5954/2010
BETWEEN:
MANJANNA
E 1. BASAPPA
S/O DYAMANAGOUDA PUJAR @ HANUMAR
Digitally signed
by MANJANNA E MAJOR, OCC: AGRIL
Date: 2024.01.24
15:45:38 +0530
2. GURAPPA
S/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: AGRIL
BOTH ARE R/O LEBAGERI VILLAGE
KOPPAL TALUK & DISTRICT - 583 231.
...APPELLANTS
(BY SRI. SANTOSH B MALLIGAWAD., ADVOCATE FOR
SRI. Y. LAKSHMIKANT REDDY., ADVOCATE)
AND:
SMT. LAXMAWWA
W/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: HOUSEHOLD
R/O LEBAGERI VILLAGE TALUK
-2-
RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
& RSA NO. 5419/2010
KOPPAL DISTRICT-583 231.
...RESPONDENT
(BY SRI. SABEEL AHMED., ADVOCATE FOR
SRI. A. S. PATIL., ADVOCATE)
***
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC PRAYING AGAINST THE JUDGMENT &
DECREE DATED 05.10.2009 PASSED IN R.A.NO.46/2004 ON
THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I
AT KOPPAL ALLOWING THE APPEAL, FILED AGAINST THE
JUDGMENT DATED 13.09.2000 AND THE DECREE PASSED IN
O.S.NO.80/96 ON THE FILE OF THE CIVIL JUDGE (JR. DN)
KOPPAL, DECREEING THE SUIT FILED FOR DECLARATION AND
INJUNCTION.
IN RSA NO. 5418/2010
BETWEEN:
1. BASAPPA
S/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: AGRIL
2. GURAPPA
S/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: AGRIL
BOTH ARE R/O LEBAGERI VILLAGE
KOPPAL TALUK & DISTRICT - 583 231.
...APPELLANTS
(BY SRI. SANTOSH B MALLIGAWAD., ADVOCATE FOR
SRI. Y. LAKSHMIKANT REDDY., ADVOCATE)
AND:
SMT. AMBAMMA
D/O TIMMANGOUDA PUJAR @ HANUMAR
MAJOR, OCC: NIL
R/O LEBAGERI VILLAGE
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
& RSA NO. 5419/2010
KOPPAL TALUK & DISTRICT-583 231.
...RESPONDENT
(BY SRI. SABEEL AHMED., ADVOCATE FOR
SRI. A. S. PATIL., ADVOCATE)
***
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC PRAYING AGAINST THE JUDGMENT &
DECREE DATED 05.10.2009 PASSED IN R.A.NO.08/2002 ON
THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I
AT KOPPAL ALLOWING THE APPEAL, FILED AGAINST THE
JUDGMENT DATED 18.06.2002 AND THE DECREE PASSED IN
O.S. NO. 07/1997 ON THE FILE OF THE CIVIL JUDGE (SR. DN)
KOPPAL, DECREEING THE SUIT FILED FOR PARTITION AND
POSSESSION.
IN RSA NO. 5419/2010
BETWEEN:
1. BASAPPA
S/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: AGRIL
2. GURAPPA
S/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: AGRIL
BOTH ARE R/O LEBAGERI VILLAGE
KOPPAL TALUK & DISTRICT - 583 231.
...APPELLANTS
(BY SRI. SANTOSH B MALLIGAWAD., ADVOCATE FOR
SRI. Y. LAKSHMIKANT REDDY., ADVOCATE)
AND:
1. SMT. LAXMAWWA
W/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: HOUSEHOLD
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
& RSA NO. 5419/2010
2. SRI. RAMANNA
S/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: AGRIL
3. SRI. HANUMAPPA
S/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: AGRIL
4. SRI. YALLAPPA
S/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: AGRIL
5. SRI. JAGADEESH
S/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: AGRIL
ALL ARE R/O LEBAGERI VILLAGE
KOPPAL TALUK AND DISTRICT.
...RESPONDENTS
(BY SRI. SABEEL AHMED., ADVOCATE FOR
SRI. A. S. PATIL., ADVOCATE)
***
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC PRAYING AGAINST THE JUDGMENT &
DECREE DATED 05.10.2009 PASSED IN R.A. NO. 07/2002 ON
THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I
AT KOPPAL PARTLY ALLOWING THE APPEAL, FILED AGAINST
THE JUDGMENT DATED 18.06.2002 AND THE DECREE PASSED
IN O.S. NO. 07/1997 ON THE FILE OF THE CIVIL JUDGE (SR.
DN) KOPPAL, DECREEING THE SUIT FILED FOR PARTITION AND
POSSESSION.
THESE REGULAR SECOND APPEALS COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
& RSA NO. 5419/2010
JUDGMENT
Appellants/plaintiffs have filed RSA No.5954/2010
challenging the judgment of First Appellate Court on the
file of Fast Track Court-I in R.A.No.46/2004 dated
5.10.2009 wherein the judgment and decree of Trial Court
on the file of Civil Judge (Jr.Dn.) Koppal in
O.S.No.80/1996 in granting the relief of declaration and
permanent injunction came to be modified only to the
extent of item Nos.1 and 2 of the schedule property.
Appellants/plaintiffs have filed RSA No.5418/2010
challenging the judgment and decree of First Appellate
Court on the file of Fast Track - I in R.A.No.8/2002 dated
5.10.2009 in O.S.No.7/1997 on the file of Civil Judge
(Sr.Dn.) Koppal for refusal of partition and separate
possession with respect to schedule properties No.1 to 3
properties claimed by defendant No.6.
Appellants/plaintiffs have filed RSA No.5419/2010
challenging the judgment and decree of First Appellate
Court on the file of Fast Track - I in R.A.No.7/2002 dated
5.10.2009 in O.S.No.7/1997 on the file of Civil Judge
RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
(Sr.Dn.) Koppal in dismissing the suit with respect to item
Nos.14 and 15 of "A" schedule properties.
2. Plaintiff-Laxmavva filed suit O.S.No.80/1996 for
the relief of declaration and injunction with respect to item
Nos.1, 2 and 4 are the self acquired properties and item
Nos.3 and 5 of the schedule are given by her husband for
maintenance. Whereas, the plaintiffs being the sons of
Hanamavva first wife of their father Dyamannagouda filed
O.S.No.7/1997 for the relief of partition and separate
possession of schedule "A"to 'C' properties in which the
properties claimed by Laxmavva, second wife of
Dymannagouda were also included. The defendant No.6
Ambamma in the said suit claimed that Sl.Nos.1 to 3 of
the "A"schedule properties are her exclusive properties
and she had filed O.S.No.29/1996 which came to be
decreed and the same has not been challenged by the
defendants of the said suit and the same has attained
finality. The plaintiffs in all these appeals are challenging
the judgment and decree of the First Appellate Court as
RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
referred above and seeking the relief of partition and
separate possession of their share in the suit schedule
properties out of the properties decreed in favour of
Laxmavva and defendant No.6 Ambamma.
3. In view of the fact that all the properties claimed in
O.S.No.80/1996 and the properties decreed in favour of
defendant No.6 Ambamma are all covered in
O.S.No.7/1997, the parties to these appeals are referred
with their ranks as assigned in the Trial Court in partition
suit in O.S.No.7/1997 for the sake of convenience.
4. The factual matrix leading to the case of plaintiffs
in O.S.No.7/1997 can be stated in nutshell to the effect
that the propositus of the family one Thimmangouda died
leaving behind Dyamangouda and daughter by name
Ambamma. The father of the plaintiffs Dyamangouda had
two wives Hanamavva and Laxmavva. The plaintiffs are
the sons of Hanamavva who is the first wife of their father
Dyamangouda. The defendant No.1 Laxmavva is the
second wife of Dyamanagouda and defendant No.2
RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
Ramanna, defendant No.3 Hanamappa, defendant No.4
Yellappa and defendant No.5 Jagadish are their sons. The
defendant No.6 Ambamma adopted "Jogati" leaving
worldly life and as such she is not entitled for any share in
the suit properties. The father of plaintiff Dyamangouda
during the subsistence of his marriage with Hanamavva
has taken second marriage with laxmavva and defendant
Nos.2 to 6 are the illegitimate children are not entitled for
share in the suit schedule properties. The plaintiffs have
requested the defendants for partition and separate
possession of their half share in all the suit properties, but
they refused for the same. Therefore, the plaintiffs were
constrained to institute the suit on hand for the relief of
partition and separate possession in all the suit schedule
properties.
5. In response to the suit summons, the defendants
have appeared through their respective counsel. The
defendant No.1 filed the written statement admitting the
relationship between the parties to the suit as pleaded in
RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
the plaint. The claim of plaintiffs has been specifically
denied that they are entitled for partition and separate
possession of their share in all the suit schedule
properties. It is the case of defendant No.1 that properties
at Sl.Nos.12, 14 and 15 of "A"Schedule property and
Sl.Nos.1 and 4 of "B" schedule properties are the absolute
ownership properties of defendant No.1. The plaintiffs
have denied the title of defendant No.1 over the above
said properties. Therefore, she has filed O.S.No.80/1996
for the relief of declaration and consequential relief of
permanent injunction. The defendant No.6 is the exclusive
owner in possession of the properties shown at Sl.Nos.1 to
3, since they have been granted by the Land Tribunal,
Koppal in favour of defendant No.6. The defendant No.6
had filed O.S.No.29/1996 on the file of Civil Judge (Jr.Dn.)
Koppal and the said suit came to be decreed. The
defendants of the said suit have not challenged the said
judgment and decree in favour of defendant No.6 and the
same has attained finality. The plaintiffs and defendant
Nos.2 to 5 have already partitioned their ancestral
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
properties during the year 1980 during the life time of
Dyamangouda. The existence of 'C' schedule properties is
denied. Therefore, on these grounds prayed for dismissal
of the suit.
6. The defendant No.6 has filed written statement
contending that genealogy shown by the plaintiffs is
incomplete. It is the case of defendant No.6 that she is
the younger sister of deceased Dyamangouda and she was
given in marriage to Siddlingappa Gollar of Budukanahalli
Taluka Ranebennur of Haveri Dist. Occupancy rights in
respect of Item Nos.1 to 3 of "A" schedule properties have
been granted to this defendant and as such, they are her
self acquired properties. She had also filed
O.S.No.29/1986 and the suit came to be decreed in her
favour. The defendants of the said suit have not
challenged the judgment and decree in O.S.29/1996 and
the same attained finality. Therefore, on these grounds
prayed for dismissal of the suit.
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
7. The Trial Court on the basis of pleadings of both
the parties in O.S.No.80/1996 and O.S.No.7/2002 framed
necessary issues. The parties have lead their evidence in
both the suits independently. The Trial Court after hearing
the arguments of both sides and on appreciation of oral
and documentary evidence placed before it, decreed the
partition suit declaring that plaintiffs are entitled for three
fourth share in "A"and "B" schedule properties and one
fourth share to defendant No.6 in schedule "A"and "B"
properties.
8. The defendants No.1 to 5 challenged the judgment
and decree of the Trial Court in O.S.No.7/1997 before the
First Appellate Court in R.A.No.7/2002. Whereas the
defendant No.6 Ambavva has challenged the judgment
and decree in O.S.No.7/1997 before the First Appellate
Court in R.A.No.8/2002 for granting partition and separate
possession in item Nos.1 to 3 of schedule "A"properties.
The defendants have challenged the judgment and decree
in O.S.No.80/1996 before the First Appellate Court in
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
R.A.No.46/2004 in granting the relief of declaration and
consequential relief of injunction with respect to the
properties claimed in the suit by Laxmavva.
9. The First Appellate Court by common judgment in
R.A.Nos.7/2002 and 8/2002 allowed R.A.No.8/2002 and
set aside the judgment and decree in respect of items
Nos.1 to 3 of "A"schedule properties as against defendant
No.6 and the suit of the plaintiffs for the said items came
to be dismissed. Whereas, R.A.No.7/2002 was partly
allowed and the decree granted by the Trial Court with
respect of items No.14 and 15 of "A" schedule properties
came to be set aside and plaintiffs are held to be entitled
for 7/9th share in items Nos.4 to 13 of "A" schedule
properties and items Nos.1 to 4 of "B" schedule properties.
The aforementioned judgment and decree of the First
Appellate Court in all the appeals referred above has been
assailed by the plaintiffs in all these appeals.
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
10. This Court by order dated 15.2.2018 has framed
following substantial question of law common in all these
appeals for consideration :
"Whether the First Appellate Court is justified in
holding that item Nos. 1 to 3 of schedule A properties
(in O.S.No.7/1997) is the individual tenancy holding
of defendant No.6 Ambavva and consequently, the
other legal heirs of late Thimmanagouda are not
entitled to any share in the said properties ?"
11. Heard the arguments of both sides in all the
appeals.
12. On careful perusal of pleadings of both parties,
oral and documentary evidence placed on record, it would
go to show that defendant No.1 Laxmavva filed
O.S.No.80/96 against Basappa and Gurappa who are the
sons of Hanamavva and Dyamangouda with respect to
Sl.Nos.1 to 3 i.e., Sy.No.173 measuring 36 guntas, Sy.No.
174/A measuring 3 acres 36 guntas and Sy.No.121/A
measuring 2 acres 22 guntas, so also the house properties
VPC No.245/101 and VPC No.119-91-98 (new No.241) for
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
the relief of declaration and consequential relief of
injunction claiming that the said properties are her self
acquired properties. Agricultural land properties at
Sl.Nos.1 to 3 referred above are shown at Sl.Nos.12, 14
and 15 in the partition suit. The house properties are
shown at Sl.Nos.1 and 4 of suit schedule "B" properties.
The Trial Court by judgment and decree dated 13.9.2000
decreed the suit of Laxmavva holding that she is the
absolute owner and in possession of the properties
referred to above. Plaintiffs Basappa and Gurappa, who
were defendants in the said suit, have challenged the said
judgment and decree before the First Appellate Court in
R.A.No.46/2004. The First Appellate Court after re-
appreciation of evidence partly allowed the appeal and
declared that Laxmavva is the absolute owner and in
possession of only the land bearing Sy.No.173 measuring
0-36 guntas and Sy.No.174/A measuring 3 acres 36
guntas shown at Sy.Nos.1 and 2 of the schedule and set
aside the judgment and decree of the Trial Court with
respect to land bearing Sy.No.121/A measuring 2 acres 22
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
guntas and house property VPC No.245/101 and VPC
No.119-91-98 (new No.241) shown at Sl.Nos.3 to 5 came
to be dismissed. The said judgment and decree of the
First Appellate Court has been challenged by Basappa and
Gurappa in RSA No.5954/2010 claiming that they have got
share in the said properties. The plaintiff Laxmavva has
not challenged the rejection of her claim with respect to
the property shown at Sl.Nos.3 to 5.
13. Defendant No.6 Ambamma claimed that the land
bearing Sy.No.66 measuring 12 acres 16 guntas, Sy.No.67
measuring 4 acres 37 guntas and Sy.No.38 measuring 14
acres 24 guntas shown in Sl.Nos.1 to 3 in the partition suit
claimed that the said properties are her self acquired
properties and the occupancy rights have been granted in
her favour. Defendant No.6 challenged the judgment and
decree of the Trial Court in O.S.No.7/1997, in granting the
relief of partition and separate possession in those
properties also, before the First Appellate Court under
R.A.No.8/2002.
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
14. Defendants No.1 to 5 i.e. Laxmavva and her
children challenged the judgment and decree of the Trial
Court in O.S.No.7/1997 before the First Appellate Court
under R.A.No.7/2002. The First Appellate Court by
common judgment in R.A.No.7/2002 and R.A.No.8/2002
by judgment dated 5.10.2009, partly allowed
R.A.No.7/2002 by confirming the judgment and decree of
the Trial Court with respect to the remaining properties
shown in schedule "A"and "B" properties except item
Nos.14 and 15 i.e., Sy.No.173 measuring 0.36 guntas and
Sy.No.174/A measuring 3 acres 36 guntas and the shares
to which the plaintiffs are entitled with defendant No.6
came to be modified. Plaintiffs i.e., Basappa and Gurappa
challenged the judgment and decree of the First Appellate
Court in RSA No.5419/2010 in rejecting their claim for
partition and separate possession of item Nos.14 and 15 of
"A" schedule property.
15. The First Appellate Court allowed R.A.No.8/2002
and set aside the judgment and decree of the Trial Court
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
in granting share to the plaintiff with respect to item Nos.1
to 3 of "A"schedule property. The defendants in both the
appeals R.A.No.7/2002 and R.A.No.8/2002 have not
challenged the decree of the First Appellate Court and also
in modifying the share to which plaintiffs and defendants
are entitled.
16. Plaintiffs in all three appeals referred above are
challenging the dismissal of their claim for partition and
separate possession with respect to items Nos.1 to 3 and
14 and 15 in "A" schedule properties claimed by them.
The scope of all these three appeals is confined only with
respect to judgment of the First Appellate Court in refusing
to grant the relief of partition and separate possession
with respect to item Nos.1 to 3 and 14 and 15 shown in
the "A" schedule properties.
17. Defendant No.1 Laxmavva claims that she is
married to Dyamangouda on the death of his first wife
Hanamavva. Defendant No.1 also does not dispute that
plaintiffs Basappa and Gurappa are the sons of first wife
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
Hanamavva to Dyamangouda. Defendant No.1 Laxmavva
has not produced any documents to substantiate her claim
that she married Dyamangouda on the death of his first
wife Hanamavva. The death extract of Dyamangouda is
produced at Ex.P.31 which goes to show that he died on
4.9.1986. The death extract of Hanamavva produced at
Ex.P.32 would go to show that Hanamavva died on
12.7.1991. The oral testimony of PW.1 Gurappa, PW.2
Hanumagouda, PW.3 Gattappa, would go to show that
Laxmavva married Dyamangouda during the subsistence
of his first wife Hanamavva. The evidence of DW.1-
Laxmavva and the documents relied by her do not
substantiate the claim of Laxmavva that she married
Dyamangouda on the death of his first wife Hanamavva.
Therefore, contrary to the evidence of PWs. 1 to 3, in the
absence of any evidence on record, it will have to be held
that Laxmavva is the second wife of Dyamangouda and
she has undergone marriage with Dyamangouda during
the subsistence of his first marriage with Hanamavva.
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
18. Defendant No.1 Laxmavva contended that she
has purchased the land bearing Sy.No.173 measuring 36
guntas and Sy.No.174/A measuring 3 acres 36 guntas out
of her own income under the registered sale deed dated
10.4.1974. Defendant No.1 claims her right over
Sy.No.121/A measuring 2 acres 22 guntas as the property
given by Dyamangouda for maintenance and the house
property shown at Sy.Nos.1 and 4 of the "B" schedule
property for the purpose of residence. The First Appellate
Court has set aside the judgment and decree of the Trial
Court in granting relief of partition with respect of land
bearing Sy.No.173 measuring 36 guntas and Sy.No.174/A
measuring 3 acres 36 guntas of Lebageri village and
remaining 3 properties i.e., Sy.No.121/A measuring 2
acres 26 guntas VPC No.245/101 and VPC No.119-91-98
(new No.41) shown at Sl.Nos.1 and 4 of "B" schedule
property came to be confirmed in granting decree for
partition in the said properties. The defendants No.1 to 5
have not challenged the said judgment and decree of the
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
First Appellate Court in giving partition and separate
possession of plaintiff's share in the said properties.
19. Plaintiffs are claiming their right of share in
Sy.No.173 measuring 3 acres 6 guntas, Sy.No.174/A
measuring 3 acres 36 guntas which is held to be the self-
acquired property of defendant No.1 Laxmavva.
20. It is the burden of plaintiffs to prove that nucleus
of joint family fund was utilized for purchasing the
property of land bearing No.173 measuring 37 guntas and
174/A measuring 3 acres 36 guntas purchased in the
name of defendant No.1 under registered sale deed dated
10.4.1974 vide Ex.D.54. There is no presumption of the
said property being the joint family property of plaintiffs
and defendants with respect to the property standing in
the name of female member of the family. It is for the
plaintiffs Basappa and Gurappa to prove that their father
Dyamangouda out of the nucleus of joint family property
acquired the said properties in the name of his second wife
Laxmavva. The plaintiffs except asserting the said fact
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
have produced no documents to prove that their father
acquired the said properties out of the nucleus of the joint
family properties. In this context of the matter it is useful
to refer the latest judgment of the Hon'ble Apex Court in
Marabasappa (dead) by LRs and Others vs. Ningappa
(dead) by LRs and Others reported in (2011) 9 SCC 451
wherein it has been observed and held in paragraphs (21)
and (22) as under :
(21) Section 14 of the Hindu Succession Act,
1956 clearly mandates that any property of a female
Hindu is her absolute property and she, therefore,
has full ownership. The explanation to sub section
(1) further clarifies that a Hindu woman has full
ownership over any property that she has acquired
on her own or as Stridhana. As a consequence, she
may dispose of the same as per her wish, and that
the same shall not be treated as a part of the joint
Hindu family property.
(22) This Court has time and again held that
there is no presumption of joint family property, and
there must be some strong evidence in favour of the
same. In the case of Appasaheb Chamdgade v.
Devendra Chamdgade and Ors. reported in (2007) 1
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
SCC 521, after examining the decisions of this
Court, it was held :
"17. Therefore on survey aforesaid
decisions, what emerges is that there is no
presumption of a joint Hindu family but on the
evidence if it is established that the property
was joint Hindu family, and the other
properties were acquired out of that nucleus, if
the initial burden is discharged by the person
who claims joint Hindu family, then the burden
shifts to the party alleging self acquisition to
establish affirmatively that property was
acquired without the aid of joint family
property by cogent and necessary evidence".
21. In view of the principles enunciated in the
aforementioned judgment of the Hon'ble Apex Court, it is
evident that the person who asserts that acquisition of
property standing in the name of any member of the
family is out of the nucleus of joint family fund, it is for the
person who claims right over the property. The plaintiffs
have not produced any evidence or documents to prove
the fact that their father Dyamangouda purchased the said
properties in the name of his second wife Laxmavva out of
nucleus of joint family funds. Therefore, the First Appellate
Court has rightly rejected the claim of the plaintiffs
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
seeking partition and separate possession and Sl.Nos.14
and 15 of "A" schedule properties i.e. land bearing
Sy.No.173 measuring 0.37 guntas, Sy.No.174A
measuring 174/A measuring 3 acres 36 guntas.
22. Defendant No.6 Ambamma has claimed that
Sl.Nos.1 to 3 of "A" schedule properties i.e., land bearing
Sy.No.66 measuring 12 acres 16 guntas, Sy.No.67
measuring 4 acres 37 guntas and Sy.No.38 measuring 14
acres 24 guntas are her self-acquired properties since the
same has been granted by the Land Tribunal, Koppal
District, Raichur. The order of the Land Tribunal is
produced at Ex.D.56 by defendant No.6 and the plaintiffs
have also produced the same Land Tribunal order Ex.P.29.
In pursuance of the same, occupancy prices has been paid
by defendant No.6 Ambavva and accordingly her name has
been entered in the records. The document at Ex.P.30 is
the mutation entry extract register wherein the name of
Dyamangouda only came to be entered with respect to
Sy.Nos.22, 256 and 258 as per the order of the Land
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
Tribunal Ex.P.29. The deceased Dyamangouda has not
challenged the order of grant of occupancy rights with
respect to the properties at Sl.Nos.1 to 3 in favour of
defendant No.6 during his life time nor his wife
Hanamavva who died on 12.7.1991 Ex.P.32 has
challenged the order of the Land Tribunal. It means that
deceased Dyamangouda has accepted the grant of
occupancy rights with respect to Sy.Nos.66, 67 and 68 in
favour of defendant No.6 and land bearing Nos.22, 256,
257 in his favour. The plaintiffs have also not produced
any documents to show that the propositus of the family
Thimmangouda was the tenant of the said properties and
after his death, deceased Dyamangouda and his sister
Defendant No.6 Ambavva have inherited the tenancy
rights.
22. Defendant No.6 had filed O.S.No.29/1996 for the
relief of permanent injunction against Gurappa and others.
The said suit came to be decreed vide judgment dated
18.2.1999. The evidence of DW.3 Hanumappa, GPA
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holder of defendant No.6, would go to show that
defendants have filed appeal challenging O.S.No.29/2006
and the same is also dismissed. However, to contradict
the said evidence of DW.3, the plaintiffs have not
produced any documents to show pendency of any appeal.
Therefore, in the absence of any evidence to that effect, it
will have to be held that the judgment and decree in
O.S.No.29/2006 Exs.P.76 and 77 holds good. The
evidence on record would speak to the effect that
defendant No.6 was given in marriage with Sidlingappa
Gollar and she was offering pooja to Yellamma. According
to the plaintiffs also, defendant No.6 adopted Jogiti and
renounced the worldly affairs. The plaintiffs have not
produced any documents to show as to when defendant
No.6 adopted jogiti and renounced worldly life. However,
the fact remains that defendant No.6 was offering pooja to
Yellamma and in the absence of any evidence on record
that she inherited tenancy rights from the propositus
Tammangouda, it will have to be held that the said three
properties at Sl.Nos.1 to 3 are the granted lands of which
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occupancy rights have been granted to defendant No.6
and as such they are her self-acquired properties.
23. The First Appellate Court regarding the
entitlement of share of parties to the suit, has held that
Dyamangouda and plaintiffs Basappa and Gurappa will
each get 1/3rd share. Defendant No.1 Laxmavva being the
second wife of Dyamangouda will not get any share
whereas defendants No.2 to 5 are entitled for share in the
1/3rd share of deceased Dyamangouda and accordingly
modified the share to which the plaintiffs and Defendants
No.2 to 6 are entitled for partition and separate possession
of their shares. The question is as to whether the
illegitimate children of Laxmavva and deceased
Dyamangouda will get any right of share in the properties
of their deceased father Dyamangouda. In this context, it
is profitable to refer to the latest judgment of the Hon'ble
Apex court in Revanasiddappa and Another vs.
Mallikarjun and Others (2023) 10 SCC 1 wherein it has
been observed and held in paragraph 61 as under :
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"61. When a Hindu dies after the
commencement of the amending Act of 2005, his
interest in the property of a joint Hindu family
governed by Mitakshara law has to devolve by
testamentary in intestate succession and not by
survivorship, as stipulated in sub-section (3) of
Section 6. The interest of a Hindu Mitakshara
coparcener, for the purpose of sub-section (3) has
to be ascertained on the basis that a notional
partition has taken place immediately before his
death. The share in the property that would have
been allotted to the intestate on the basis of such a
notional partition is governed by the General Rules
of Succession specified in Section 8, the HAS, 1956.
The distribution of the property among the Class I
heirs is government by the Rules specified in
Section 10. In the distribution inter alia the
surviving sons, daughters and mother of the
intestate take one share each and likewise the
widow (and all the widows together if there was
more than one) take one share. In the distribution
of the property of the deceased who has died
intestate, a child who is recognized as legitimate
under sub-section (1) of Section 6 of the HMA, 1955
or under sub-section (2) of Section 16 would be
entitled to a share. Since this is the property that
would fall to the share of the intestate after notional
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partition, it belongs to the intestate. Under Section
16(3), a child conferred with legitimacy is entitled to
the property of their parents only, and does not
have any rights to or in the property of a person
other than the parents. Hence, where the deceased
has died intestate, the devolution of this property
must be among the children- legitimate as well as
chose conferred with legitimacy by the legislature
under Sections 16(1) and 16(2) of the HMA, 1995.
Doing so would not offend or breach the restriction
which is specified in sub-section (3) of Section 16."
Therefore, in view of the principles enunciated in the
aforementioned judgment of the Hon'ble Apex Court, the
First Appellate Court has rightly awarded a share to which
plaintiffs, defendants Nos.2 to 5 and 6 are entitled and
was justified in modifying the judgment and decree of the
Trial Court.
24. The Trial Court without considering the material
evidence on record and the legal position with regard to
the share to which the parties to the suit are entitled has
proceeded to decree the suit of the plaintiffs in
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O.S.No.7/1997 in all the "A" and "B" schedule properties.
The First Appellate Court for the reasons recorded in its
judgment referred above and taking into consideration the
legal position has rightly interfered with the judgment and
decree of the Trial Court in setting aside the claim of the
plaintiffs for the relief of partition and separate possession
with respect to item Nos.1 to 3 and 14, 15 of "A" schedule
properties in dismissing the suit of the plaintiffs with
respect to the said properties and in granting the relief of
partition and separate possession with respect to schedule
item Nos.4 to 11, 13 of "A" schedule properties and item
Nos.4 to 13 of "A" schedule property and item Nos.1 to 4
of "B" schedule properties. The appellants/plaintiffs in all
these appeals have failed to make out any valid and
justifiable grounds to interfere with the judgment and
decree passed by the First Appellate Court and as a result,
the substantial question of law raised in the appeals is
answered in the affirmative. Consequently, proceed to
pass the following :
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ORDER
Appeal filed by the appellants/plaintiffs in RSA
No.5954/2010, RSA No.5419/2010 and RSA
No.5418/2010 are hereby dismissed as devoid of merits.
The judgment and decree of the First Appellate Court
on the file of Fast Track - I, Koppal in R.A.No.7/2002,
R.A.No.8/2002 and R.A.No.46/2004 dated 5.10.2009
stands confirmed.
Registry is directed to send back the Trial Court
records expeditiously.
Sd/-
JUDGE
rs
