Karnataka High Court
Smt. Prathibha vs Smt. Chandramma on 4 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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RSA No. 1048 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 1048 OF 2013 (PAR)
BETWEEN:
SMT. PRATHIBHA
AGED 38 YEARS
W/O N.S. SRIDHAR
AGRICULTURIST/HOUSEHOLD
R/O VAKKALIGARAPET
DAVANAGERE-01
...APPELLANT
(BY SRI.M.S. RAJENDRA., ADVOCATE)
AND:
1. SMT. CHANDRAMMA
W/O LATE SHIVAKUMARA SWAMY
AGED 56 YEARS
AGRICULTURE HOUSEHOLD
TUDEKOPPA VILLAGE
NADAKALASE HOBLI
SAGAR TALUK, SHIMOGA DISTRICT
Digitally signed
by 2. PRASHANTHA KUMAR
NARAYANAPPA
LAKSHMAMMA S/O LATE SHIVAKUMARA SWAMY
Location: HIGH AGED 33 YEARS
COURT OF AGRICULTURE/HOUSEHOLD
KARNATAKA TUDEKOPPA VILLAGE
NADAKALASE HOBLI
SAGAR TALUK
3. SMT GOWRAMMA
DEAD BY HER LRS
3A RAJKUMARA SWAMY
S/O LATE GANGADHARAIAH
AGED 62 YEARS
AGRICULTURE/HOUSEHOLD
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RSA No. 1048 of 2013
TUDEKOPPA VILLAGE
NADAKALASE HOBLI
SAGAR TALUK, SHIMOGA DISTRICT
3B SMT. BALALEELAMMA
D/O LATE GANGADHARAIAH
W/O S M SHIVANANDA SWAMY
AGED 66 YEARS
BELLAGAVI VILLAGE AND POST
SHIKARIPURA TALUK
SHIMOGA DISTRICT
4. SMT. JANAKAMMA
W/O NOT KNOWN
AGE 52 YEARS
TUDEKOPPA VILLAGE
NADAKALASE HOBLI
SAGAR TALUK, SHIMOGA DISTRICT
5. PRADEEP KUMAR
S/O NOT KNOWN
AGE 33 YEARS
TUDEKOPPA VILLAGE
NADAKALASE HOBLI
SAGAR TALUK, SHIMOGA DISTRICT
...RESPONDENTS
(BY SRI. VEERENDRA R. PATIL., ADVOCATE;
R1, R2, R3, R4-SERVED & UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGEMENT & DECREE DTD 22.1.2013 PASSED IN
R.A.NO.107/2009 ON THE FILE OF THE ADDL. DISTRICT JUDGE,
SHIMOGA, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGEMENT AND DECREE DATED 22.6.2009 PASSED IN
OS.NO.191/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN) SAGAR.
*****
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1048 of 2013
JUDGMENT
1. The plaintiff is before this Court challenging the
concurrent finding of the trial Court in
OS No.191/2006 and RA No.107/2009, partly
decreeing the suit filed by the plaintiff. The plaintiff
claims to be the daughter of late Sri.T.G. Shivakumar
Swamy through his first wife Smt.Chandramma.
Defendant No.1 is the mother-Smt.Chandramma,
defendant No.2 is her blood brother, defendant No.3
was a grandmother, upon her expiry, her other two
sons i.e., the brothers of her father were brought on
record as her legal representatives. Defendant No.4
is the second wife, defendant No.5 is the son of the
second wife.
2. The plaintiff filed the aforesaid suit in OS
No.191/2006 for declaration that the plaintiff is
entitled to one-third share in the suit scheduled
properties. For declaration that the Hissa Kararu
Patra dated 31.03.2004 entered into between the
parties is null and void, as also for mesne profits.
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Defendant No.2 being her brother, filed his written
statement supporting the plaintiff.
3. Defendant No.5 filed a detailed written statement
contending that the Hissa Kararu Patra has been
acted upon, partition having been already affected
between the parties. The Hissa Kararu Patra has
been executed by the plaintiff herself, the plaintiff
cannot seek to reopen the partition.
4. On the basis of the rival pleading, the following
issues were framed, and they were answered as
under by the trial Court.
ISSUES
1. Whether the plaintiff proves that she, defendant No.
1 and 2 constitute a Hindu joint Family?
2. Whether plaintiff further proves that the suit
schedule properties are the joint family properties of
plaintiff, defendant No.1 and 2?
3. Whether plaintiff proves that her signature to the
Hissa Kararu Patra was taken against her free will,
conscience and by playing fraud, misrepresentation
and coercion on account of the ill health of
Shivakumara Swamy?
4. Whether the plaintiff proves that in the said partition
deed, the share allotted to her is very meager and it
is unjust, unfair and unequal?
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5. Whether the defendants No.3 to 5 prove that
defendant No.4 is the legally wedded wife and
defendant No.5 is the son of Shivakumar Swamy
through defendant No.4?
6. Whether defendant Nos.3 to 5 further prove that
they have acted upon the partition dated 31.3.2004
and made improvements as pleaded in para 13 and
14?
7. Whether plaintiff is entitled for the relief of
declaration?
8. Whether the plaintiff is entitled for partition and
separate possession of 1/3rd share in the suit
schedule properties?
9. Whether the plaintiff is entitled for mesne profits in
respect of suit schedule properties?
10. To what order or Decree the parties entitled?
My findings on the above issues are as under;
Issue No.1: In the negative.
Issue No 2: In the negative
Issue No.3: In the negative.
Issue No 4: In the negative.
Issue No.5: Partly in the affirmative.
Issue No.6: Partly in the affirmative.
Issue No.7: In the negative.
Issue No.8 The plaintiff is entitled the share in the suit
properties to the extent as allotted under Ex.D1.
Issue No.9 In the negative.
Issue No. 10: As per final order.
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5. The trial Court, while answering issue No.3 has gone
through the pleadings and the evidence on record
and come to a categorical conclusion that the plaintiff
has signed the Hissa Kararu Patra of her own, free
will and volition. There is no fraud played on her, on
account of the alleged ill health of her father and has
consequently come to a conclusion that the said
Hissa Kararu Patra is binding on the parties to the
said document.
6. The plaintiff having taken up the same on appeal in
RA No.107/2009, the First Appellate Court after re-
appreciating the evidence on record has again come
to a conclusion that there was a clear cut partition by
allotting shares between the parties in terms of the
Hissa Kararu Patra and therefore the parties having
acted in terms of exhibit D-1 being the Hissa Kararu
Patra, the relief sought for by the plaintiffs cannot be
granted. It is challenging in the same, the plaintiff is
before this Court challenging concurrent finding of
both the trial Court and the First Appellate Court.
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7. The above appeal was admitted on 13.02.2020 to
answer the following substantial question of law.
The substantial questions of law that arise for
consideration in this appeal are;
"(i) Whether the Courts below failed to consider,
whether the second wife and children born from her
are entitled to claim as coparceners in the joint family
ancestral properties?
(ii) Whether the plaintiff being a signatory to the
partition deed dated 31.03.2004 is entitled to
challenge the same on the ground that the second wife
and her children do not have pre-existing rights in the
coparcenary properties in the light of the Judgment of
the Hon'ble Apex Court in the case of Kale and other
vs. Deputy Director of consolidation and others
reported in AIR 1976 SC 807?"
8. The contention of Learned counsel for the appellant
is that defendant No.5 being the son of the second
wife of her father, the said marriage having occurred
during the subsistence of the marriage with the first
wife i.e., defendant No.1, the properties admittedly
being joint family properties, defendant No.5 would
not have any interest in the property, nor could the
joint family properties be partitioned among the
parties when defendant No.5 did not have any
interest in such joint family properties.
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9. At the most, he submits that defendant No.5 would
have a right only in the share of the deceased father
and not in the entire properties and thus he submits
that the Hissa Kararu Patra which is by virtue of
which a right has been conferred on defendant No.5
in joint family properties is non est and cannot be
considered and it is in that basis he submits that the
pleadings and the evidence led by the plaintiff that
the Hissa Kararu Patra was executed by her without
her free will and volition would have to be believed
by this Court.
10. Learned counsel for the respondent would however
submit that the Hissa Kararu Patra having been
executed and acted upon the plaintiff having signed
the said document, the revenue entries subsequent
thereto having made in the name of the parties as
per the Hissa Kararu Patra. The plaintiff having been
allotted 11 guntas of land belonging to the family,
the plaintiff having received that property, enjoyed
the said property for a period of 2 years from the
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time when the Hissa Kararu Patra was executed
could not file a suit 2 years thereafter challenging the
Hissa Kararu Patra. Since the Hissa Kararu Patra has
been executed and acted upon, the question of
consideration of the substantial questions as framed
by this Court would not arise.
11. Heard Sri.M.S.Rajendra., learned counsel appearing
for the appellant and Sri.Veerendra R.Patil., learned
counsel appearing for respondent No.5. Perused
papers.
12. The relationship between the parties is not in
dispute, so also it is not in dispute that the properties
are joint family properties. The submission made by
learned counsel for the appellant would have been
proper and correct provided there was no Hissa
Kararu Patra which had been executed between the
parties. In the absence of any partition between the
parties, the recent judgment of the constitutional
Bench of the Apex Court in Revanasiddappa &
another vs. Mallikarjun & others reported in
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(2023) 10 SCC 1 would have applied more
particularly in terms of Para 81 thereof and
Defendant No.5 would have only an interest in the
property falling to the share of the deceased father
and not in the joint family properties.
13. However, in the present matter, factually there has
been a Hissa Kararu Patra which has been admitted
in the plaint by the appellant herself. In fact, the
suit having been filed for declaration that the Hissa
Kararu Patra dated 31.03.2004 is null and void. The
only reason to suspect or challenge the Hissa Kararu
Patra is that the father expired on 12.04.2004, 12
days after the execution of the Hissa Kararu Patra
and therefore the said document was not executed of
her own free will, conscious and wish of the plaintiff.
14. It is not in dispute that Hissa Kararu Patra was
executed on 31.03.2004 and the suit came to be filed
on 4.11.2006 i.e., after a gap of nearly more than
two and half years.
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15. The evidence on record which has been examined
and appreciated by both the trial Court and the First
Appellate Court indicates that subsequent to the
execution of the Hissa Kararu Patra, mutation entries
as regard the properties allotted to the plaintiff had
been made in her name and that the said document
has been executed by all family members witnessed
by witnesses who have also deposed as regard the
validity of the veracity of the document. The said
validity and veracity of the said Hissa Kararu Patra
having been established during the course of
evidence before the trial Court and having been
confirmed by the First Appellate Court is a question
of fact and not a question of law. It is only if the
Hissa Kararu Patra has not established that the
question of whether the son of a second wife could
claim right in the joint family property would arise.
Once the Hissa Kararu Patra is established, the said
question would not arise.
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16. As such on facts, the trial Court and First Appellate
Court having come to a conclusion that there was a
division of the property among the parties and that
division of the property has been acted upon, the
question of the plaintiff once again re-agitating the
issue by filing a suit for partition would not arise.
17. In that view of the matter, I am of the considered
opinion that the substantial questions as framed by
this Court on 13.02.2020 would not be required to be
considered in the absence of the Hissa Kararu Patra
being established to be invalid.
18. With the above observation, the appeal stands
dismissed.
Sd/-
JUDGE
SR
