Karnataka High Court

Smt Bhagirathi W/O Ramakrishna Pandit vs Subray Ganapayya Bhat Since Deceased By ... on 25 July, 2024

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                                                 NC: 2024:KHC-D:10547
                                                     RSA No. 2543 of 2007




                   IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                        DATED THIS THE 25TH DAY OF JULY, 2024
                                        BEFORE
                        THE HON'BLE MR JUSTICE C.M. POONACHA
                    REGULAR SECOND APPEAL NO. 2543 OF 2007 (PAR)
             BETWEEN:

             SMT BHAGIRATHI
             W/O RAMAKRISHNA PANDIT,
             AGE: 50 YEARS,
             HOUSEHOLD & AGRICULTURE,
             R/O KOTITHIRTH (WEST) GOKARN,
             TQ: KUMTA, DIST: KARWAR-581326.
                                                              ...APPELLANT
             (BY SRI SOURABH MIRJE, AMICUS CURIAE)

             AND:
             1.    SUBRAY GANAPAYYA BHAT
                   SINCE DECEASED BY HIS LRS

             A).   SMT. LAXMI W/O SUBRAY
                   @ SUBRAMANYA BHAT
                   AGE: 63 YEARS,
                   OCC: HOUSEHOLD,

             B).   VINAYAK
Digitally
signed by          S/O SUBRAY @ SUBRAMANYA BHAT
BHARATHI S         AGE: 40 YEARS, OCC: HOUSEHOLD,
Location:
HIGH
COURT OF           BOTH ARE R/O SODIGADDE,
KARNATAKA          PO: ACHAVE
                   TALUK: ANKOLA, DIST: KARWAR-581314.

             C).   SMT SALEELA
                   W/O HARISCHANDRA BHAT
                   AGE: 37 YEARS, OCC: HOUSEHOLD,
                   R/O VARA RUCHI SADANAT AND
                   PO KATTAGAL(BANDAL)
                   TALUK: KUMTA,
                   DIST: U.K.581334.

             D). VISHALU
                 W/O NAGAPPA HEGDE
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                                     NC: 2024:KHC-D:10547
                                           RSA No. 2543 of 2007




      AGE: 32 YEARS, HOUSEHOLD,
      R/O KELAGINKERI POST: HADINBAL,
      TQ: HONNAVAR,
      DIST: U.K.58334

E).   SMT. NAGARATHNA
      W/O PARAMESHWAR
      BHAT KUNDARGI
      AGE: 30, HOUSEHOLD,
      R/O C/O LAXMI
      W/O SUBRAY BHAT,
      R/O SOMGADDE, POST: ACHAVE
      TQ: ANKOLA, DIST: KARWAR-58314.

2.    NAGENDRA GANAPAYYA BHAT
      AGE: 65 YEARS,
      OCC: AGRICULTURE,

3.    HERAMBA GANAPAYYA BHAT
      AGE: 55 YEARS, OCC: AGRICUTURE,

4.    MAHABALESHWAR
      S/O NARAYAN BHAT
      AGE: YEARS,
      OCC: AGRICULTURE AND PRIEST,
5.    GANAPATI
      S/O NARAYAN BHAT
      AGE:47 YEARS, OCC: AGRIL. & PRIET,

6.    SHREEDAR
      S/O NARAYAN BHAT
      AGE: 45 YEARS, OCC: AGRIL.

      ALL ARE R/O KESHAVALLI,
      POST: ACHAVE,
      TALUK ANOKLA, DIST: KARWAR.

7.    SHIVARAM GOVIND BHAT
      AGE: 60 YEARS
      R/O ACHAVE, TQ: ANKOLA
      DIST: KARWAR-581314.

8.    KRISHNA NAGAPPA HEGDE
      AGE: 55 YEARS, OCC: AGRIL.
      R/O CHENNAGAR ACHAVE,
      TQ: ANKOLA, DIST: KARWAR-581314.
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                                            NC: 2024:KHC-D:10547
                                                    RSA No. 2543 of 2007




9.   SHREEDHAR SUBRAY HEBBAR
     AGE: 50 YEARS, OCC: AGRIL.,
     R/O HILLUR GUTTAL ACHAVE,
     TQ: ANKOLA,
     DIST; KARWAR-581314.
                                                           ...RESPONDENTS
(BY SMT. SMITA B.H., ADVOCATE FOR
SRI. NARAYAN V. YAJI FOR R2;
R1 (A-E), 3 TO 7 & 9 SERVED
SERVICE TO R8 IS HELD SUFFICIENT)

      THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 08.06.2007 IN RA.NO.2/2006
PASSED BY THE LEARNED CIVIL JUDGE (SR.DN.) KIMTA AND THE
JUDGMENT AND DECREE DATED 22.12.2001 IN O.S.NO.84/1991
PASSED BY THE CIVIL JUDGE (JR.DN.) ANKOLA AND DECREE OF THE
SUIT AS PRAYED FOR.


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


                                JUDGMENT

The present second appeal is filed under Section 100

of the Code of Civil Procedure, 19081 by the plaintiff No.2

challenging the judgment and decree dated 08.06.2007

passed in R.A.No.2/2006 by the Senior Civil Judge, Kumta2

and the judgment and decree dated 22.12.2001 passed in

O.S.No.84/1991 by the Civil Judge, Ankola,3 whereunder

Hereinafter referred to as the 'CPC'

Hereinafter referred to as the 'First Appellate Court'

Hereinafter referred to as the 'Trial Court'

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the suit for partition has been dismissed by the Trial Court

which has been affirmed by the First Appellate Court.

2. The parties herein are referred to as per their

ranking before the Trial Court for the sake of

convenience.

3. The relevant facts necessary for consideration

of the present appeal are that the plaintiff No.1 is stated

to be the second wife of one Ganapayya Bhat. Plaintiff

No.2 is their daughter and defendants No.1 to 3 are their

sons. Defendants Nos.4 to 8 are the legal representatives

of Ganapayya and his first wife. Defendants No.9 and 10

are the subsequent purchasers of suit schedule Item No.4

property from defendant No.2.

4. It is the case of the plaintiffs that the suit

properties being properties of Ganapayya, the plaintiffs

and defendants No.1 to 3 having constituted a Joint Hindu

Family. Hence plaintiffs are entitled for a share in the suit

properties. Hence, the suit.

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5. The defendants No.1 and 2 contested the suit

and denied the case of the plaintiffs. It is contended that

by a partition dated 02.02.1977 (Ex.D.22), the plaintiffs

have been granted a share in the properties of

Ganapayya. Further, it is contended that the shares of the

plaintiffs having been agreed upon under the said

partition (Ex.D.22), the plaintiffs are not entitled to any

share. It is further contended that the property at Sl.No.4

is the self-acquired property of defendant No.2 and he

purchased the same out of his own income.

6. Defendant No.6 also filed a written statement

contending that properties at Sy.Nos.306 and 238 (i.e.

suit schedule 'A' Item Nos.6 and 7 properties) are the

self-acquired properties of the said defendants, since the

occupancy rights have been granted by the Land Tribunal,

Ankola in favour of the said defendants. That defendants

No.4 to 7 being the children of the first wife have

partitioned their share and have been living separately.

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The defendants No.4, 5 and 7 have filed a memo adopting

the written statement of defendant No.6.

7. The defendants No.9 and 10 being the

subsequent purchasers have also filed a written statement

contending that they are the subsequent purchasers from

defendant No.2 in respect of the suit schedule 'A' Item

No.4 property and they are bonafide purchasers for value.

8. Consequent to the pleadings of the parties, the

Trial Court framed the following issues and additional

issues:

"1. Whether the plaintiffs prove that plaintiffs and all the defendants form a Hindu Joint Family?

2. Whether plaintiffs further prove that suit schedule properties are the self-acquired properties of deceased Ganapayya Bhat?

3. Whether the defendants 1 & 2 prove that all the suit properties except Sy.No.267 are their ancestral properties?

4. Whether defendants 1 and 2 prove that there is already a partition, effected under a partition-deed

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Dtd: 2/2/1977, in respect of suit lands, between plaintiffs & defendants?

5. Whether schedule 'B' properties are the self acquired properties of defendants 1&2, as alleged in para No.9 of their written- statement?

6. Whether the plaintiff No.2 proves that the deceased plaintiff No.1 had executed a Registered Willnama on 30/9/1991 bequeathing her share in the suit property?

7. Whether the plaintiff further proves that as per the willnama dated 30/9/1991, she is entitled for the share of plaintiff No.1, in the suit schedule properties?

8. Whether the defendants 9 & 10 prove that the defendant No.2 sold the Sy.No. 267 of Achave Village for payment of antecedent debts and legal necessity?

9. Whether the suit is barred by limitation as against defendant No.9 & 10?

10. Whether the suit is not maintainable without a prayer for cancellation of sale deed executed in favour of defendants 9 & 10?

11. Whether the defendants 4 to 6 prove that the lands bearing the Sy.no.306 & 238 of Achave Village are the self acquired properties of their

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father and as such the plaintiffs and defendants 1 & 3 have no right in the same?

12. Whether the plaintiffs prove that plaintiff together have got 2/5th share in all the suit properties?

13. What order of Decree?

Additional issue framed.

14. Whether the defendant No.1 & 2 prove that the Sy.No.267 is the self-acquired property of defendant No.2?"

9. The plaintiff No.2 was examined as PW.1 and

two witnesses as PW.2 and PW.3. The defendant No.3

was examined as DW.1. However, defendant No.3 was

not present for cross-examination and hence the

testimony of DW.1 has been struck of. Defendant No.2

was examined as DW.2 and a witness as DW.3. The

defendant No.6 was examined as DW.4. Exs.P.1 to P.13

and Exs.D.1 to D.30 have been marked in evidence.

10. The Trial Court by its judgment and decree

dated 22.12.2001, dismissed the suit.

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11. Being aggrieved, the plaintiffs preferred

R.A.No.2/2006. The defendants entered appearance

before the First Appellate Court and contested the same.

The First Appellate Court framed the following points for

consideration:

"1. Whether the judgment and decree passed by the Trial Court in O.S.No.84/91 dated 22.12.2001 is arbitrary, capricious and perverse and bad in law on any of the ground urged in the appeal memo?

2. Whether Judgement and decree of Trial Court need any interference by this Court?

3. What Order?"

12. The First Appellate Court by its judgment and

decree dated 08.06.2007 dismissed the appeal. Being

aggrieved, the present second appeal is filed.

13. This Court vide order dated 11.11.2009

admitted the above appeal and framed the following

substantial question of law:

"i. Whether the First Appellate Court justified in affirming the judgment of the Trial Court when the

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appellant was claiming a share in the mother's share and not in respect of the entire ancestral properties?"

14. Learned counsel, Sri.Sourabh Mirje, who has

been appointed as amicus curiae by this Court to

represent the appellant vide order dated 07.03.2024,

vehemently contends that the plaintiffs not having been

parties to the partition at Ex.D.22, they are entitled for a

share. It is further contended that the finding of the Trial

Court that the suit schedule 'A' item No.4 property is the

self-acquired property of defendant No.2 is erroneous and

liable to be set aside. Hence, he seeks for allowing of the

above appeal and decreeing the suit of the plaintiffs.

15. Learned counsel, Smt.Smita B.H. appearing for

learned counsel Sri.Narayan V Yaji for respondent No.2

submits that the concurrent finding of both the Courts

that the suit 'A' schedule item No.4 property is the self-

acquired property of defendant No.2 is just and proper

and not liable to be interfered with.

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16. The submissions made by both the learned

counsels have been considered and the material on record

has been perused including the records of the Trial Court

and the First Appellate Court.

17. It is forthcoming that the plaintiffs have

specifically pleaded that late Ganapayya, after the death

of his first wife had married Plaintiff No.1. That he had

two children from his first wife who have taken their

shares as per the partition between them.

18. It is pertinent to note that the genealogy and

the relationship as averred by the plaintiffs is not

disputed. It is further pertinent to note that plaintiff No.1

died on 22.10.1995 and she had executed a registered

Will dated 30.09.1991 (Ex.P.6) bequeathing her share in

the property in favour of her daughter, the plaintiff No.2.

It is further forthcoming that in the partition Ex.D.22, the

suit 'A' schedule properties at item Nos.1, 2, 3 and 5 have

been mentioned therein and there is no mention of suit 'A'

schedule item Nos.4, 6 and 7 properties.

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19. It is further relevant to note that defendants

No.4 to 8 have taken a specific contention that suit 'A'

schedule item Nos.6 and 7 properties have been granted

by the Land Tribunal, Ankola in favour of the father of

defendants No.4 to 7 and that they are the self-acquired

properties.

20. In view of the fact that the said suit schedule 'A'

Item Nos.6 and 7 properties do not find a mention in the

partition Ex.D.22 and having regard to the specific

averment of the plaintiffs that the children of the first wife

took their share and lived separately, it is clear that the

plaintiffs have failed in demonstrating that suit 'A'

schedule item Nos.6 and 7 properties are joint family

properties.

21. It is the specific contention of the defendants

No.1 to 3 that late Ganapayya along with his second wife

and children have already partitioned their property vide

Ex.D.22. The Trial Court and the First Appellate Court

noticing the averment made by the plaintiffs that there is

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a prior partition and having regard to the partition

Ex.D.22, has dismissed the suit.

22. It is relevant to note that the plaintiffs have

averred with regard to the partition of late Ganapayya

and children of his first wife. Further, it is forthcoming

from partition Ex.D.22 that plaintiffs are not parties to the

same. It is forthcoming from a perusal of Ex.D.22 that the

defendants 1 to 3 have agreed to provide certain

maintenance to the plaintiffs from and out of the income

of the properties mentioned in the said deed as agreed to

between them.

23. Having regard to the admitted position that

plaintiffs are not parties to partition (Ex.D.22), the terms

agreed to between the defendants No.1 to 3 vide Ex.D.22

cannot bind the plaintiffs. Hence, the finding recorded by

the Trial Court and the First Appellate Court rejecting

claim for partition is erroneous and liable to be set aside.

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24. With regard to the contention of the defendant

No.2 that suit schedule 'A' Item No.4 property is the self-

acquired property, it is relevant to note that the Trial

Court has noticed the contention put forth by defendant

No.2 that he was singing in Yakshgana and that he had a

separate income. Noticing the documents produced to

demonstrate the same, the Trial Court has recorded a

finding that suit 'A' schedule item No.4 property is the

self-acquired property of defendant No.2.

25. It is the vehement contention of the learned

counsel for the appellant that suit 'A' schedule item No.4

property was purchased vide sale certificate dated

11.12.1964 (Ex.D.19) and the documents produced by

defendant No.2 to prove his income are Ex.D.21 of the

year 1982 and Ex.D.20 of the year 1987. It is forthcoming

that the Trial Court noticing the said contention, has held

that suit 'A' schedule item No.4 property was purchased

by defendant No.2 in a public auction as is forthcoming

from Ex.D.19 which has been issued by the Tahasildar

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and if the defendant No.2 was a minor, the same would

have been mentioned in the said Ex.D.19. Hence, it has

been held by the Trial Court that defendant No.2 having

demonstrated that he had an independent income by

singing in Yakshagana, the said contention of the plaintiffs

was rejected and a finding of fact has been recorded that

suit 'A' schedule item No.4 property (Sy.No.267) is the

self-acquired property of defendant No.2. The said finding

has been affirmed by the First Appellate Court.

26. Having regard to the concurrent findings

recorded by both the Courts, notwithstanding the

vehement contention of the learned counsel for the

appellant that the said finding is erroneous, no ground

has been made out to interfere with the same.

27. Hence the plaintiffs are entitled for a share in

the suit 'A' schedule item Nos.1, 2, 3 and 5 properties.

Having regard to the admitted position that plaintiff No.1

married deceased Ganapayya after the death of first wife,

plaintiff No.1 is also entitled to an equal share along with

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plaintiff No.2 and defendants No.1 to 3. The plaintiff No.1

who is the second wife and plaintiff No.2 and defendants

No.1 to 3 being the children of deceased Ganapayya, are

entitled to 1/5th share each.

28. The share of plaintiff No.1 having bequeathed

to plaintiff No.2 vide Will dated 30.09.1991 (Ex.P.6) and

both the Courts having recorded a concurrent finding that

the Will has been proved, plaintiff No.2 is entitled to 2/5th

share in the suit item Nos.1, 2, 3 and 5 properties.

29. In view of the aforementioned, the substantial

question of law is answered in the negative.

30. This Court places on record the valuable

assistance rendered by learned counsel, Sri.Sourabh Mirje

as amicus curiae for the appellant. The Karnataka State

Legal Services Authority is requested to pay a honorarium

of `10,000/- to learned counsel Sri. Sourabh Mirje for the

services rendered in the above appeal upon production of

a copy of this order.

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31. Hence, the following:

ORDER

i. The above appeal is partly allowed;

ii. The judgment and decree dated 08.06.2007 passed in R.A.No.2/2006 by the Senior Civil Judge, Kumta is set aside;

iii. The judgment and decree dated 22.12.2001 passed in O.S.No.84/1991 by the Civil Judge, Ankola is set aside;

iv. The suit in O.S.No.84/1991 on the file of Civil Judge, Ankola is partly decreed by holding that plaintiff No.2 is entitled to 2/5th share in the suit 'A' schedule Item Nos.1, 2, 3 and 5 properties;