Karnataka High Court
Rukimini W/O. Dymanna Navekar vs Smt Laxmavva W/O. Hanumanthappa Kedari on 30 July, 2024
Author: B.M. Shyam Prasad
Bench: B.M. Shyam Prasad
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NC: 2024:KHC-D:10702-DB
RFA No. 100045 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 100045 OF 2024 (PAR/POS)
BETWEEN:
1. RUKMINI
W/O. DYMANNA NAVEKAR,
AGE. 39 YEARS, OCC. HOUSEWIFE
R/O. HULKOPPA TQ. KALAGHATAGI,
DIST. DHARWAD-580118.
2. DASHRATHA
S/O. DYAMANNA NAVEKAR
AGE. 21 YEARS, OCC. AGRICULTURE
R/O. HULKOPPA TQ. KALAGHATAGI,
DIST. DHARWAD-580118.
3. MAHESH
S/O. DYAMANNA NAVEKAR
Digitally
signed by
YASHAVANT
AGE. 18 YEARS, OCC. STUDENT
NARAYANKAR
Location:
R/O. HULKOPPA TQ. KALAGHATAGI,
HIGH COURT
OF
KARNATAKA
DIST. DHARWAD-580118.
...APPELLANTS
(BY SRI. DINESH M. KULKARNI, ADVOCATE)
AND:
1. SMT. LAXMAVVA
W/O. HANUMATHAPPA KEDARI,
AGE. 43 YEARS,
OCC. HOUSEWIFE
R/O. TEMPLE STREET, MANDIHAL,
MUGAD, DHARWAD-580007.
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NC: 2024:KHC-D:10702-DB
RFA No. 100045 of 2024
2. SMT. DYAMAVVA
W/O. BASAPPA BAGALKOT
AGE. 66 YEARS,
OCC. HOUSEWIFE
R/O. TEMPLE STREET MANDIHAL,
MUGAD AT DHARWAD-580007.
...RESPONDENTS
(BY SRI. RAGHAVENDRA A. PUROHIT, ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 READ WITH ORDER 41 RULE 1 OF CPC., 1908, AGAINST
THE JUDGMENT AND DECREE DATED 09.10.2023 PASSED IN
O.S.NO.101/2022 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JUDICIAL MAGISTRATE FIRST CLASS, KALAGHATAGI,
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
B.M.SHYAM PRASAD, J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE B.M. SHYAM PRASAD
AND
HON'BLE MR JUSTICE C M JOSHI
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE B.M. SHYAM PRASAD)
This appeal is filed by the first to third defendants in
O.S. No.101/2022 on the file of Senior Civil Judge and
JMFC, Kalaghatagi [for short 'the civil Court']. The civil
Court, by the impugned judgment and decree dated
09.10.2023, has decreed the respondents' suit declaring that
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each of the respondents would be entitled to 1/3rd share in
the suit schedule property which is the land measuring 10
acres 06 guntas in Sy.No.192 of Hulkoppa village [hereafter
referred to as the subject property]. There is no dispute
about the relationship inter se parties. The appellants are
the wife and children of Sri. Dyamanna Navekar, who had
two sisters by name Smt. Tulsavva and Smt. Dyamavva [who
is the second respondent herein]. The first respondent is the
daughter of Smt. Tulsavva.
2. Sri. Dinesh M. Kulkarni, the learned counsel for
the appellants, submits that the appellants have contested
the respondents claim for partition asserting primarily that
[a] Smt. Tulsavva and the second respondent way back in
the year 1979 have agreed for transfer of all the revenue
entries for the subject property in favour of Shri. Dyamanna
and this revenue entry has prevailed right from the year
1979 till the date of the suit and [b] the long-standing
revenue entry coupled with the fact that both Smt. Tulsavva
and the second respondent are married and living separately
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show that the subject property was not a joint family
property as on the date of the suit.
3. Sri. Dinesh M. Kulkarni further argues that the
first respondent's asserts that she is the daughter of Smt.
Tulsavva, but she has not produced any document to
demonstrate that she is her daughter except a Legal Heir
Certificate [Ex.P.13] issued by the Tahasildar and that the
Tahasildhar does not mention the mother's name when a
Certificate1 is issued with reference to the husband's name
and this shows that this certificate is secured only for the
purpose of the suit. The learned counsel argues that
therefore, the Certificate would have no probative value
unless the respondents examined the officers to prove the
content of the certificate.
4. Sri. Raghavendra A. Purohit, the learned counsel
for the respondents, submits2 that each of these witnesses
1. This Certificate mentioned that the names of both the first
respondent's husband and mother.
2. The learned Counsel has also made over to the Court copies of the
deposition of three witnesses. The deposition of Sri. Basappa S/o.
Yallappa More, who is examined as PW.3 and the deposition of the
respondents who were examined as PWs.1 and 2 respectively.
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are not only categorical in stating that the first respondent is
the daughter of Tulsavva but they have also denied the
suggestion to the contrary and that the efficacy of the
Certificate [Ex.P.13] must be seen in the context of the oral
evidence and the fact that the appellants have neither let in
any evidence nor placed on record any material to
undermine the efficacy of either the respondent's oral
testimony or the Certificate.
5. These rival submissions present a narrow canvas
of dispute, and the points for consideration will be as
follows.
Whether the Civil Court has erred in opining that there
is material to hold that the first respondent is the
daughter of deceased Tulsavva and that
Smt.Tulsavva and the second respondent have only
given consent for transfer of revenue entries in favour
of Shri. Dyamanna the subject property and that such
admission cannot be taken as proof of partition.
6. The respondents have, apart from their evidence
as regards the first respondent's relationship with Smt.
Tulsavva, relied upon the evidence of Sri. Basappa S/o.
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Yallappa More [PW.3]. This witness in his cross examination
is categorical in stating that he is from the same community
as the parties to the suit and that he has attended the
wedding of Smt. Tulsavva. This witness, while disputing
that at the time of marriage Smt. Tulsavva was given
properties in settlement of her claims, is categorical in his
assertion that the first respondent is the daughter of Smt.
Tulsavva, and further in his cross examination he says that
he has not seen any record that speak of the first
respondent being the daughter of Smt. Tulsavva and that he
knows about her father's family.
7. However, these statements do not undermine in
any manner his categorical evidence that the first
respondent is the daughter of Smt. Tulsavva. The
respondents do not rely upon the only Certificate [Ex.P.13]
to establish the first respondent's relationship with
Tulsavva, and even if they were to rely only upon such
Certificate, this Court, while assessing the evidence on the
scale of preponderance of probabilities, must examine the
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probative value of this Certificate considering the ocular
evidence on record.
8. When this Certificate [Ex.P.13] is read in
conjunction where the oral evidence of Sri. Basappa S/o.
Yallappa More [PW.3] and the respondents and the fact that
the appellants have not placed any material whatsoever to
the contrary, this Court must opine that the contents of
Certificate corroborate oral evidence in establishing the first
respondent's relationship with Smt. Tulsavva. The
appellants are aggrieved by the fact that the Certificate is
issued mentioning the first respondent as not just the wife of
Sri. Hanumanthappa Kedari but also as the daughter of
Smt. Tulsavva which could not have been the scenario
according to them. Mere doubt canvassed by the appellants
does not discharge the onus on them in the light of evidence
placed on record by the respondents to show the
relationship between the first respondent and Smt.
Tulsavva. Hence, the first point for consideration is
answered against the appellants.
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9. The appellants rely upon mutation entry in MR
No.1178 which is dated 29.10.1979 to contend that Smt.
Tulsavva and the second respondent have given up their
interest in the subject property. This mutation, which is in
the vernacular, reads that both Smt. Tulsavva and other
daughter [the second respondent] and Smt. Yallawwa, wife of
the propositus of Ramappa have only consented for the
revenue entries for the subject property to be made in the
name of Late Sri. Dyamanna. The appellants, who rely upon
this statement and the fact that these revenue entries have
prevailed until the date of the suit, have not placed on
record any material to infer that this revenue entry is a
consequence of oral arrangement/partition inter se the
parties for exclusive allotment of the subject property to Sri
Dyamanna and to construe that this arrangement is to the
exclusion of the others.
10. If the appellants have not placed any material on
record in this regard, this Court cannot take any exception
with the Civil Court opining that this mutation cannot be
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construed as consent for release of all their rights. The
mutation entry indicates that Smt. Yallawwa and Smt.
Tulsavva have only signified their consent for revenue
entries in favour of Dyamanna when the second respondent
was still a minor. Therefore, second point for consideration
is also answered against the appellants. Consequentially,
the appeal is dismissed, and in view of the dismissal of the
appeal, all pending applications are rejected as not surviving
for consideration.
Sd/-
(B.M.SHYAM PRASAD)
JUDGE
Sd/-
(C M JOSHI)
JUDGE
SMM
