Karnataka High Court
Smt. Rudravva W/O Ramanagouda Yadravi vs Sri. Basappa S/O Kallappa Amminabhavi on 10 January, 2024
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RFA No. 100209 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100209 OF 2018 (PAR/POS)
BETWEEN:
1. SMT. RUDRAVVA W/O. RAMANAGOUDA YADRAVI
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O: MANDIHAL, POST: MUGAD,
TQ: DHARWAD, DIST: DHARWAD.
2. SMT. NINGAVVA W/O. BASAVANNAPPA HOTAGI
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O: MANDIHAL, POST: MUGAD,
TQ: DHARWAD, DIST: DHARWAD.
3. SMT. MALLAVVA W/O. VEERUPAKSHI AVARADI
AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
R/O: KOGILAGERIL, POST: ARAVATAGI,
TQ: DHARWAD, DIST: DHARWAD.
4. SMT. PARAVVA W/O. SOMALINGA AVARADI
VIJAYALAKSHMI
AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
M KANKUPPI
R/O: MANDIHAL, POST: MUGAD,
Digitally signed by
VIJAYALAKSHMI M
KANKUPPI
TQ: DHARWAD, DIST: DHARWAD.
Date: 2024.01.18
11:32:56 +0530
...APPELLANTS
(BY SRI. S.L.MATTI, ADVOCATE)
AND:
1. SRI. BASAPPA S/O. KALLAPPA AMMINABHAVI
AGE: 71 YEARS, OCC: AGRICULTURIST,
R/O: MANDIHAL, POST: MUGAD,
TQ: DHARWAD, DIST: DHARWAD.
2. SMT. CHANNABASAVVA KALLAPPA AMMINABHAVI
AGE: 66 YEARS, OCC: AGRICULTURIST,
C/O. CHANNAVVA AKKI,
R/O: UNKAL, SUBHANI NAGAR,
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RFA No. 100209 of 2018
TQ: HUBBALLI, DIST: DHARWAD.
3. SRI. MALLAPPA S/O. KALLAPPA AMMINABHAVI
SINCE DECEASED R/BY HIS LRs.,
3(A). SMT. PARAVVA W/O. MALLAPPA AMMINABHAVI
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
R/O: MANDIHAL, POST: MUGAD,
TQ: DHARWAD, DIST: DHARWAD.
3(B). SMT. GANGAVVA W/O. MALLAPPA NEELANNAVAR
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O: HULAKOPPA, POST: KALAGHATAGI,
DIST: DHARWAD.
3(C). SMT. MANJAVVA W/O. GANGAPPA ITAGI
AGE: 36 YEARS, OCC: HOUSEHOLD WORK,
R/O: JODALLI, TQ: KALAGHATAGI,
DIST: DHARWAD.
3(D). SRI. KALLAPPA S/O. MALLAPPA AMMINABHAVI
AGE: 34 YEARS, OCC: GOVT. SERVANT,
R/O: MANDIHAL, POST: MUGAD,
TQ: DHARWAD, DIST: DHARWAD.
3(E). SRI. BASALINGAPPA
S/O. MALLAPPA AMMINABHAVI,
AGE: 32 YEARS, OCC: GOVT. SERVANT,
R/O: MANDIHAL, POST: MUGAD,
TQ: DHARWAD, DIST: DHARWAD.
4. SRI. SHASHIDHAR
S/O. VEERABHADRAPPA HOSUR,
AGE: 58 YEARS, OCC: SERVICE,
R/O: GOURISHANKAR BUILDING,
NEAR BARODA BANK,
SADANKERI ROAD, DHARWAD.
5. SMT. PRASANNA W/O. UDAY HOOILGOL
AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
R/O: VAIBHAV BUILDING,
H.NO.10, SHIVAGIRI, 2ND CROSS,
NEAR PAVAN SCHOOL, DIST: DHARWAD.
6. SRI. SAHADEV S/O. BASAPPA HUKKERI
AGE: 67 YEARS, OCC: DOCTOR,
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RFA No. 100209 of 2018
R/O: SHUSHRUTA HOSPITAL,
MALAMADDI, DHARWAD.
...RESPONDENTS
(BY SRI. K.L.PATIL, ADVOCATE FOR R6;
SRI. C.S.NAGASHETTI, ADVOCATE FOR
R1, R2, R3(A) TO R3(E);
NOTICE TO R4 IS SERVED;
NOTICE TO R5 IS HELD SUFFICIENT)
THIS RFA IS FILED UNDER SEC. 96 READ WITH ORDER 41
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
25.04.2018 PASSED IN O.S.NO.466/2015 ON THE FILE OF THE
II-ADDITIONAL SENIOR CIVIL JUDGE, DHARWAD, DISMISSING THE
SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS RFA COMING ON FOR HEARING, THIS DAY, ASHOK S.
KINAGI, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and
decree dated 25.04.2018 passed in O.S.No.466/2015 II
Additional Senior Civil Judge, Dharwad.
2. For the sake of convenience, parties are
referred to as per their ranking before the trial court.
3. Appellants are the plaintiffs and respondents
are the defendants. Plaintiffs filed a suit for partition and
separate possession in respect of the suit schedule
properties. It is contended that suit properties are the
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ancestral properties of the family of the plaintiffs and
defendant Nos.1 to 3. Father of the plaintiffs and
defendant Nos.1 to 3 by name Kallappa who was the
original propositus of the family died on 29.04.1980.
Plaintiffs and defendant Nos.1 to 3 are the only surviving
legal heirs of their father. No partition is effect between
the plaintiffs and defendant Nos.1 to 3. It is contended
that defendant Nos.1 to 3 got entered their names in
respect of suit lands and they sold property Nos.2 and 3 in
favour of defendant No.4 under registered sale deed. It is
contended that defendant Nos.1 to 3 had no right to
execute the registered sale deed in respect of property
Nos.2 and 3. The plaintiffs requested the defendants to
effect partition, but the defendants refused to effect
partition. Hence, cause of action arose for the plaintiffs to
file the suit for partition and separate possession.
4. Defendant Nos.1 and 4 though appeared, but
did not file the written statement. Defendant No.6 filed
written statement denying the averments made in the
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plaint. It is contended that defendant No.6 is the bonafide
purchaser of the property Nos.2 and 3 from the husband
of defendant No.5. Defendant No.6 is in lawful possession
and enjoyment of the suit properties. Hence, prayed to
dismiss the suit.
5. The trial court on the basis of the pleadings of
the parties framed the following issues and additional
issues:
1) Whether the plaintiffs prove that the suit schedule
properties are the joint family properties of them
and the defendants No.1 to 3 and as such, they
have 1/7th share each in the suit schedule
properties?
2) Whether the plaintiffs prove that sale deeds dated
07.05.1986, 29.03.1993 and 23.10.2001 are not
binding on their shares?
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3) Whether the valuation made by the plaintiffs for
the purpose of court fee and jurisdiction is proper
and correct?
4) Whether the suit filed by the plaintiffs is ell within
time?
5) Whether the plaintiffs are entitled for the reliefs as
prayed for?
6) What order?
Additional issue:
1) Whether the defendant No.6 proves that he is the
bonafide purchaser of the suit property Nos.2 and
3?
6. The plaintiffs in order to prove their case,
plaintiff No.2 was examined as P.W.1 and got marked 25
documents as Exs.P1 to P25. On behalf of the defendants,
defendant No.6 was examined as D.W.1 and got marked
23 documents as Exs.D1 to D23. The trial court on
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assessment of oral and documentary evidence on record
answered issue Nos.1 and 4 partly in the affirmative, issue
Nos.2, 3 and 5 in the negative, additional issue No.1 in the
affirmative and issue No.6 as per the final order. The suit
of the plaintiffs is dismissed.
7. The plaintiffs aggrieved by the judgment and
decree passed by the trial court filed this appeal.
8. Heard the learned counsel for the plaintiffs an
learned counsel for defendant No.6.
9. Learned counsel for the plaintiffs submits that
though the trial court has recorded a finding that property
No.1 still remains as a joint family property of the
plaintiffs, the trial court could have decreed the suit in
respect of property No.1. On the contrary, suit was
dismissed in its entirety. He submits that the trial court
placing reliance on the judgment of the Hon'ble Apex
Court in the case of Prakash and Others vs Phulavathi
and Others reported in 2015 (4) KCCR 3265 (SC) has
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dismissed the suit holding that plaintiffs are the daughters
and they are not the coparceners. To buttress his
contention, he placed reliance on the judgment of the
Hon'ble Apex Court in the case of Vineeta Sharma v.
Rakesh Sharma and others reported in (2020) 9 SCC 1 and
submits that judgment passed in Prakash and
Phulavathi (supra) was overruled by the Hon'ble Apex
Court in the said judgment. He further submits that in
view of amendment to Section 5 of the Hindu Succession
Act, 2005, the daughter shall become a coparcener in her
own right in the same manner as the son. He submits that
the trial court committed an error in dismissing the suit of
the plaintiffs in its entirety.
10. Learned counsel for the plaintiffs submits that
plaintiffs are restricting their claim in respect of property
No.1 only and they are not claiming any right in respect of
property Nos.2 and 3. His submission is placed on record.
11. Per contra, learned counsel for defendant No.6
submits that defendant Nos.1 to 3 sold property Nos.2 and
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3 before 20.12.2004. Hence, he submits that said sale
deeds are saved as per sub-section (1) of Section 6 of the
Hindu Succession Amendment Act, 2005. He submits that
trial court was justified in dismissing the suit in respect of
property Nos.2 and 3. Hence, on these grounds he prays
to confirm the judgment and decree passed by the trial
court in respect of property Nos.2 and 3.
12. Perused the records and considered the
submissions of the learned counsel for the parties. The
points that arise for our consideration are:
1) Whether the plaintiffs prove that property No.1 is
the joint family property of plaintiffs and
defendant Nos.1 to 3?
2) Whether the plaintiffs prove that trial court
committed an error in dismissing the suit in
respect of property No.1?
3) What order or decree?
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Since Point Nos. 1 and 2 are interlinked to each
other, both are taken up together for consideration in
order to avoid repetition of facts.
13. Point Nos.1 and 2: In order to prove their case,
plaintiff No.2 was examined as P.W.1 and she has
reiterated the plaint averments in her examination-in-
chief. In order to prove that property No.1 is the ancestral
property of plaintiffs and defendant Nos.1 to 3, plaintiffs
marked the documents. Ex.P3 is the RTC extract in respect
of property No.28/A, Ex.P3 is the RTC extract in respect of
land bearing Sy.No.28/1, Ex.P6 is the RTC extract in
respect of property No.28/2. Exs.P7 to P19 are the
certified copies of the mutation entries. Exs.P20 to P22 are
the certified copies of the registered sale deeds executed
by defendant Nos.1 to 3 in favour of defendant No.4.
Exs.P23 to P25 are the RTC extracts. Further, nothing has
been elicited in the cross-examination of P.W.1 in respect
of property No.1. The trial court recorded a finding that
property No.1 still remains as the joint family property of
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the family, relief claimed relating to the said property is
not time barred. Suit schedule properties are the ancestral
properties of the plaintiffs and defendant Nos.1 to 3. The
said finding is not challenged by the parties. The said
finding has attained finality. Hence in view of the finding
recorded by the Trial Court regarding the suit schedule
properties are the ancestral properties. Thus we hold that
suit properties are the ancestral properties of plaintiffs and
defendant No.1 to 3. In so far as item Nos.2 and 3 are
concerned the defendant Nos.1 to 3 have sold item Nos.2
and 3 properties in favour of defendant No.4 under
different registered sale deed dated 07.05.1986,
29.09.1993 and 23.10.2001. As per sub-section (1) of
Section 6 of the Hindu Succession Amendment Act, 2005,
any alienation taken place before 20.12.2004 is
uneffected. In view of the same, the trial court was
justified in dismissing the suit in respect of property Nos.2
and 3. The trial court dismissed the suit solely on the
ground that plaintiffs are the daughters and father of the
plaintiffs died prior to 09.09.2005 and also placing reliance
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on the judgment of the Hon'ble Apex Court in the case of
Prakash and Phulavathi (supra). However, in the
recent judgment, the Hon'ble Apex Court in the case of
Vineeta Sharma (supra) has overruled the judgment
passed in Prakash and Phulavathi (supra) and held
that irrespective of whether father was alive or dead as on
the date of amendment, the daughters are treated as
coparceners and they are entitled for a share in the
coparcenery property. In view of the law laid down by the
Hon'ble Apex Court in the case of Vineeta Sharma
(supra), the plaintiffs are coparceners are entitled for
share in item No.1 of the suit property.
14. In view of the above discussion, we answer
point Nos.1 and 2 in the affirmative holding that suit
schedule properties are the ancestral joint family
properties of the plaintiffs and defendant Nos.1 to 3.
However, defendant Nos.1 to 3 have alienated property
Nos.2 and 3 in favour of defendant No.4 prior to
20.12.2004. Hence, the sale deeds executed by defendant
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Nos.1 to 3 in favour of defendant No.4 are unaffected by
virtue of sub-section (1) of Section 6 of the Hindu
Succession Amendment Act, 2005. However, the trial court
committed an error in dismissing the suit in respect of
property No.1. Hence, the judgment and decree passed by
the trial court insofar as property No.1 is concerned, is
liable to be set aside. Accordingly, we proceed to pass the
following:
ORDER
i) The appeal is allowed.
ii) The judgment and decree dated 25.04.2018
passed in O.S.No.466/2015 II Additional Senior
Civil Judge, Dharwad insofar as property No.1 is
concerned, is set aside.
iii) The plaintiffs are entitled for share in property
No.1. Plaintiff Nos.1 to 4 are entitled for 4/7th
share together and defendant Nos.1 to 3 are
entitled for 1/7th share each.
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iv) Insofar as property Nos.2 and 3 are concerned,
the judgment and decree dated 25.04.2018
passed in O.S.No.466/2015 II Additional Senior
Civil Judge, Dharwad is maintained.
v) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
MBS
