Karnataka High Court
Nagshetty S/O Rameshetty Biradar vs Laximi Bai W/O Late Sanjeev Kumar on 5 January, 2024
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RSA No. 7438 of 2011
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 7438 OF 2011 (PAR)
BETWEEN:
1. NAGSHETTY S/O RAMESHETTY BIRADAR,
AGE: 67 YEARS, OCC: AGRICULTURE & BUSINESS,
R/O BEERI (K), TQ. BHALKI,
DIST. BIDAR-585401.
2. MAHADEVI W/O NAGSHETTY BIRADAR,
AGE: 60 YEARS, OCC: HOUSEHOLD,
R/O BEERI (K), TQ. BHJALKI,
DIST. BIDAR-585401.
3. NIRMALA W/O BABURAO,
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O KUNTESIRSI, TQ. BHALKI,
Digitally signed
by SACHIN DIST. BIDAR-585401.
Location: HIGH
COURT OF 4 RATNAMMA W/O DAYANAND,
KARNATAKA
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O DONGAPUR, TQ. BHALKI,
DIST. BIDAR-585401.
5. SANGEETA W/O UMAKANT,
AGE: 36 YEARS, OCC: AGRICULTURE &
HOUSEHOLD,
R/O VILASPUR,TQ. BHALKI,
DIST. BIDAR-585401.
6. BHAGYASHREE W/O SHARNU,
AGE: 32 YEARS, OCC: AGRICULTURE HOUSEHOLD,
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RSA No. 7438 of 2011
R/O TADOLA, TQ. B.KALYAN,
DIST. BIDAR-585401.
...APPELLANTS
(BY SRI. SHIVANAND PATIL, ADVOCATE)
AND:
1. LAXIMI BAI W/O LATE SANJEEV KUMAR,
AGE: 25 YEARS, OCC: NIL,
R/O BEERI (K), TQ. BHALKI, DIST. BIDAR.
NOW R/O KOTGYAL, TQ. BHALKI,
DIST. BIDAR-585401.
2. RADHAKRISHNA S/O MANIKRAO,
SINCE DECEASED BY HIS LRS.
2(A) GODAVARI W/O LATE RADHA KRISHANNA,
AGE: 30 YEARS, OCC: HOUSEHOLD,
2(B) RAMKRISHANNA S/O LATE RADHA KRISHANNA,
AGE: 9 YEARS, OCC. STUDENT,
2(C) TELANIRANI KRISHANNA
D/O LATE RADHA KRISHANNA,
AGE: MINOR,
2(D) SHIVURANI KRISHANNA
D/O LATE RADHA KRISHANNA,
AGE: MINOR,
RESPONDENT NO.2(B) TO 2(D) ARE MINOR
U/G NEXT FRIEND THEIR NATURAL
MOTHER GODAVARI
W/O LATE RADHA KRISHANNA,
ALL ARE R/O BEERI (K), TQ. BHALKI,
DIST. BIDAR.
3. MANIKRAO S/O DHONDIBA,
AGE: MAJOR, OCC: AGRICULTURE,
R/O BEERI (K), BHALKI,
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RSA No. 7438 of 2011
DIST. BIDAR - 585 401.
4. GODHAVARI W/O VITHALRAO BIRADAR,
AGE: 49 YEARS, OCC: HOUSEHOLD,
R/O BEER (K), BHALKI,
DIST. BIDAR - 585 401.
...RESPONDENTS
(NOTICE TO R1, R2(A), R3 AND R4 - SERVED;
R2(B) TO (D) ARE MINORS U/G OF R2(A))
THIS RSA IS FILED U/S. 100 OF CPC PRAYING TO ALLOW
THE APPEAL BY SETTING ASIDE THE IMPUGNED JUDGMENT
AND DECREE DATED 16.07.2011 IN R.A.NO.101/2010 AND
CONFIRM THE JUDGMENT AND DECREE DATED 07.09.2009 IN
O.S.NO.17/2009.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, Appellants/defendant Nos.1, 2 and 6
to 9 are assailing the judgment and decree dated
16.07.2011 in R.A.No.101/2009 on the file of Fast
Track-II, Bidar (Camp at Bhalki), setting aside the
judgment and decree dated 07.09.2009 in
O.S.No.17/2009 on the file of Senior Civil Judge at Bhalki,
decreeing the suit of the plaintiff.
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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. It is the case of the plaintiff that plaintiff is the
daughter-in-law of defendant Nos.1 and 2, constitute a
joint family. It is stated that the husband of the plaintiff-
Sanjivkumar S/o defendant Nos.1 and 2 died on
08.03.2007 and after his demise, the plaintiff is entitled
for share in the suit schedule properties. Therefore, the
plaintiff filed O.S.No.17/2009 on the file of Senior Civil
Judge, Bhalki seeking relief of partition and separate
possession in respect of the schedule properties.
4. After service of notice, the defendants entered
appearance and filed detailed written statement and
sought for dismissal of the suit.
5. The trial Court on the basis of the pleadings on
record, framed the issues for its consideration.
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6. In order to establish their case, plaintiff was
examined as PW.1 and got marked seven documents as
Ex.P.1 to Ex.P.7. Defendants have examined three
witnesses as DW.1 to DW.3 and got marked one document
as Ex.D1. The trial Court after considering the material on
record by its judgment and decree dated 07.09.2009
decreed the suit of the plaintiff holding that the plaintiff is
entitled of 1/12th share in all plaint 'A' and 'B' schedule
properties excluding the alienated properties.
7. Being aggrieved by the same, the plaintiff has
preferred appeal in R.A.No.101/2009 before the First
Appellate Court and the appeal was resisted by the
defendants. The First Appellate Court by judgment and
decree dated 16.07.2011, allowed the appeal holding that
the plaintiff is entitled for 1/6th share in the suit schedule
properties.
8. Feeling aggrieved by the same the appellants
herein have preferred the present second regular appeal.
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9. I have heard learned counsel Sri Shivanand
Patil appearing for the appellants. Respondents are
served, un-represented.
10. Sri Shivanand Patil, learned counsel appearing
for the appellants invited the attention of the Court to the
finding recorded by the trial Court, so also the
genealogical tree to establish the relationship between the
parties and argued that as the husband of the plaintiff is
pre-deceased the defendant No.2 and therefore the trial
Court was justified in allotting 1/12th share in the suit
schedule properties, however same has been erroneously
interfered with by the First Appellate Court and accordingly
sought for interference of this Court.
11. Respondents are served and remained absent.
12. This Court by order dated 28.11.2022
formulated the following substantial questions of law :-
1. Whether the findings of the Appellate Court that
the alienations made by defendant No.1, who is
the father-in-law of the plaintiff in favour of the
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defendant No.3 to 5 will not bind the plaintiff, is
perverse and palpably erroneous and contrary to
the clinching rebuttal evidence on record, which
indicates that all these alienations were made by
defendant No.1, who is kartha of the family much
prior to the plaintiff's marriage with Sanjivkumar
and the plaintiff's husband Sanjivkumar has
signed as witness to the one of the sale deed?
2. Whether the Appellate Court erred in not
examining that the properties which were sold
much prior to the plaintiff's marriage are not
available for partition and therefore, the
judgment and decree of the Appellate Court in
granting share even in respect of the properties
alienated is perverse?
3. Whether the Appellate Court erred in declining a
share to defendant No.2, who is a mother, being
the class-I heir is also entitled for share in respect
of her deceased son Sanjivkumar and therefore,
the present plaintiff being a widow will not
exclusively succeed to her husband's share in
terms of Section 8 of the Hindu Succession Act?
13. Having heard the learned counsel appearing for
the appellants and on careful examination of the original
records, it is not in dispute with regard to the relationship
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between the parties. The genealogical tree of the parties
reads as under :-
Ramashetty
Nagshetty
Mahadevi (wife)
Nirmala Ratanamma Sangeeta Bhayshree Sanjivkumar
(Husband of plaintiff)
14. It is not in dispute that the schedule properties
are the ancestral properties of the husband of the plaintiff
and defendant Nos.1 and 2. Defendant Nos.1 and 2 had
five children, and the son of defendant Nos.1 and 2 -
Sanjivkumar (husband of the plaintiff) died on
08.03.2007, leaving behind the plaintiff and the defendant
Nos.1 and 2.
15. On careful examination of the finding recorded
by the trial Court, it is not in dispute with regard to the
fact that the defendant No.2 is the Class-I heir as per
schedule to Hindu Succession Act, 1956 and same has to
be read along with Section 8 of the Hindu Succession Act.
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Husband of the plaintiff died leaving behind the plaintiff
and defendant No.2 to succeed to the estate as the
defendant No.2 is the Class--I heir under the schedule.
16. In that view of the matter, the judgment and
decree passed by the trial Court is just and proper as the
plaintiff is entitled for 1/12th share in all plaint 'A' and 'B'
schedule properties excluding the properties which are
already sold in favour of defendant Nos.3 to 5.
17. It is needless to say that, the alienation of the
properties that has been made are much before the
marriage of the son of defendant No.1 with the plaintiff.
Having arrived at such a conclusion that the trial Court has
rightly allotted 1/12th share in the suit properties, the
finding recorded by the First Appellate Court is incorrect
and the First Appellate Court has not re-appreciated the
material on record in the right perspective by looking into
the provisions contained under the Hindu Succession Act.
The finding recorded by the First Appellate Court at
paragraph 21 of the impugned judgment is incorrect to
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devolve the suit schedule properties in favour of the
plaintiff and defendant Nos.1, 2 and 6.
18. In that view of the matter, the substantial
question of law framed above favours the defendants and
the First Appellate Court without re-appreciating the
material on record in the light of the observation made by
the Hon'ble Apex Court in the case of Santosh Hazari v.
Purushottam Tiwari (Dead) By LRs.1 and looking into
the scope and ambit of Order XLI Rule 31 of Code of Civil
Procedure, passed the impugned judgment and decree.
19. In the result, the appellants have made out a
case for interfere with the judgment and decree passed by
the First Appellate Court and the First Appellate Court on
mistaken of fact and law, has interfered with the well
reasoned impugned judgment and decree passed by the
trial Court.
20. In the result, I pass the following :
(2001) 3 SCC 179
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ORDER
i) Appeal is allowed.
ii) Judgment and decree dated 16.07.2011 in
R.A.No.101/2009 on the file of Fast
Track-II, Bidar (Camp at Bhalki) is set-
aside.
(iii) Confirmed the judgment and decree dated
07.09.2009 in O.S.No.17/2009 on the file
of the Civil Judge (Sr.Dn.) at Bhalki,
decreeing the suit of the plaintiff holding
that the plaintiff is entitled for 1/12th share
in plaint 'A' and 'B' schedule properties
excluding the properties which are already
alienated in favour of defendants no.3 to 5.
Sd/-
JUDGE
SN
