Karnataka High Court
Sri D H Basavaraju vs Smt Kalpana H on 5 June, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RFA No. 1003 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO. 1003 OF 2022 (DEC/PAR)
BETWEEN:
SRI. D.H. BASAVARAJU
S/O D.M HOLEYAPPA
AGED ABOUT 47 YEARS,
NOW R/AT DODDAGHATTA VILLAGE
NAGAVEDI POST
KANAKATTE HOBLI
ARASIKERE TALUK
HASSAN DISTRICT
PIN-573 103.
...APPELLANT
(BY SRI. MADHUSUDHAN M.N, ADVOCATE)
AND:
Digitally signed by 1. SMT. KALPANA.H
BASAVARAJU PAVITHRA
Location: HIGH COURT
W/O D.H.BASAVARAJU
OF KARNATAKA D/O HANUMAPPA
AGED ABOUT 39 YEARS,
2. KUM. SHREYA
D/O D.H. BASAVARAJU
AGED ABOUT 12 YEARS,
MINOR REP. BY HER
NATURAL GUARDIAN
MOTHER RESPONDENT NO.1
BOTH RESPONDENT NOS.1 & 2 ARE
RESIDING AT DOOR NO.1722/38,
2ND CROSS, SIDDAVERAPPA EXTENSION
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RFA No. 1003 of 2022
DAVANAGERE, PIN-577 001.
3. SRI. D.N HOLEYAPPA
S/O LATE MARIYAPPA
AGED ABOUT 73 YEARS,
RESIDING AT DODDAGHATTA VILLAGE
NAGAVEDI POST, KANNAKATTE HOBLI
ARASIKERE TALUK-573 103.
4. SMT. CHANDRAKALA
W/O D.M HOLEYAPPA
AGED ABOUT 70 YEARS,
C/O SUSHEELAMMA
KARIGOWDARA COLONY
2ND CROSS, B.M ROAD
HASSAN, PIN-573 201
5. SRI. D.H MOHAN KUMAR
S/O D.M HOLEYAPPA
AGED ABOUT 50 YEARS,
RESIDING AT DODDAGHATTA VILLAGE
NAGAVEDI POST, KANNAKATTE HOBLI
ARASIKERE TALUK
PIN-573 103.
6. SMT. D.H BHAGYAMMA
D/O D.M HOLEYAPPA
W/O KUMAR
AGED ABOUT 48 YEARS,
RESIDING AT TAMMADIHALLI VILLAGE
MASKAL POST
TUMAKUR DISTRICT
PIN-572 101.
...RESPONDENTS
(BY SRI. A.V.AMARNATHAN, ADVOCATE FOR R1 & R2;
SRI. B.HANNALINGE GOWDA, ADVOCATE FOR R3-R6)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED
05.02.2022 PASSED IN OS No.21/2019 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC, ARSIKERE, DECREEING THE
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RFA No. 1003 of 2022
SUIT FOR PARTITION, SEPARATE POSSESSION AND
DECLARATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though the appeal is listed for admission, with the
consent of the learned counsel for the parties, the appeal is
taken up for final disposal.
2. This appeal is filed by the appellant-Defendant No.5
under Section 96 of the Code of Civil Procedure, 1908, calling in
question the judgment and decree dated 05.02.2022 passed in
O.S.No.21/2019 by the Senior Civil Judge and JMFC at
Arsikere.
3. For the purpose of convenience, the ranking of the
parties is referred to as per their status before the trial Court.
4. Brief facts of the case are that respondent No.1/
plaintiff No.1 is the wife of the appellant/defendant No.5 and
respondent No.2/plaintiff No.2 is the daughter of plaintiff No.1
and defendant No.5. Since there was difference of opinion in
the family, the first plaintiff was constrained to desert 5th
defendant and started to live separately along with 2nd
plaintiff- minor daughter. Therefore, the plaintiffs have filed a
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suit before the trial Court seeking for partition and separate
possession in respect of suit schedule properties and for
maintenance. Accordingly, the trial Court decreed the suit to
the effect that 2nd plaintiff is entitled to ½ (half) share in the
share of defendant No.5 in the suit schedule properties and also
granted maintenance amount of Rs.20,000/- per month to the
plaintiffs payable by the 5th defendant.
5. The relationship between the plaintiffs and 5th
defendant is admitted. 5th defendant has denied the allegations
made by the 1st plaintiff in the suit. Further, it is contended
that there was earlier registered partition deed dated
03.08.2018 as per Ex.P31. Hence, the plaintiffs cannot seek
partition once again.
6. On the basis of the pleadings of the parties, the trial
Court has framed the following:
"ISSUES
1. Whether the plaintiffs prove that they constitute the
members of the joint Hindu family and that the suit
schedule properties are the ancestral and joint family
properties available for partition?
2. Whether the partition effected on 03.08.2018, 28.09.2018,
24.01.2014, 30.12.2013 and 19.05.2015 defendants 1 to 5
is made in order to cheat the plaintiffs behind their back
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and hence, liable to be set-aside as they are not binding
upon plaintiffs' share?
3. Whether plaintiffs are entitled for the relief of partition and
separate possession?
4. Whether plaintiffs are entitled for maintenance of
th
Rs.20,000/- per month from the 5 defendant?
5. Whether plaintiffs are entitled for permanent injunction?
6. What order or decree?"
7. On behalf of the plaintiffs, 1st plaintiff got examined
as PW.1 and got marked 46 documents as Ex.P1 to Ex.P46. On
the other hand, on behalf of the defendants, 5th defendant got
examined as DW.1 and got marked a document as Ex.D1.
8. The trial Court after considering the material
evidence on record both oral and documentary, has decreed
the suit of the plaintiffs and granted ½ (half) share to 2nd
plaintiff in the share of 5th defendant in the suit schedule
properties. Further, it is declared that the partitions which took
place earlier do not bind on the share of 2nd plaintiff. Further,
the trial Court has granted maintenance amount of Rs.20,000/-
per month to the plaintiffs payable by 5th defendant. Being
aggrieved by the same, 5th defendant alone has preferred the
instant appeal.
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9. Learned counsel for the appellant/defendant No.5
submitted that the suit for partition is not maintainable since
three partitions were held earlier in the family. Hence, there is
no joint family status to claim the partition. Hence, the suit is
not maintainable. It is further submitted that the 5th defendant
has taken voluntary retirement which is admitted by the
plaintiffs. Therefore, 5th defendant does not have any source of
income. The trial Court without considering the same, has
granted maintenance amount of Rs.20,000/- per month to the
plaintiffs, which is not correct. Therefore, he prays to set aside
the judgment and decree by allowing the appeal.
10. On the other hand, learned counsel for the
respondents/plaintiffs submitted that the earlier partitions
which had taken place were just to defeat the legitimate right
of 2nd plaintiff-minor daughter and those partitions were
inequitable partitions. Hence, they are not binding on the
plaintiffs.
11. Further, it is submitted that the plaintiffs have filed
the petitions in C.Misc.No.11/2019 under Section 125 of the
Code of Criminal Procedure, 1973 for maintenance and
Crl.Misc.No.18/2019 under Section 12 of the Protection of
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Women from Domestic Violence Act, 2005 for protection and
compensation. Both the petitions came to be dismissed on the
reason that the maintenance amount of Rs.20,000/- per month
was granted by the trial Court to the plaintiffs. Therefore, they
would not get double claim of maintenance by 5th defendant.
Hence, the same was considered by the trial Court and thus,
granted the maintenance amount, which does not call for
interference. Therefore, he prays for the dismissal of the
appeal.
12. Upon considering the rival contentions and hearing
the arguments of the learned counsel for the parties, the points
that would arise for consideration are as follows:
1. Whether the plaintiffs prove that they
constitute the members of the joint Hindu
family and the suit schedule properties are
the ancestral and joint family properties
available for partition?
2. Whether the defendant proves that there
were partition earlier in the family and
hence, the suit filed by the plaintiffs is not
maintainable?
3. Whether the judgment and decree passed
by the trial Court requires any interference
by this Court?
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4. What order or decree?
13. All the above points are interlinked with each other.
Therefore, in order to avoid repetition of discussion on the
above questions of law and facts, they are taken up together
for common consideration.
14. In the present case, upon perusing the pleadings
and evidence on record, the relationship between the plaintiffs
and 5th defendant is an admitted fact and there is no dispute in
this regard. 1st plaintiff is the wife and 2nd plaintiff is the minor
daughter of 5th defendant and amongst defendant Nos.1 to 5,
the relationship is also not disputed. The suit schedule
properties are ancestral properties, which are also not in
dispute.
15. Upon a solemnized marriage between 1st plaintiff and
5th defendant, they lived happily for some time. Out of their
wedlock, 2nd plaintiff was born. Later on, 5th defendant started
ill-treating the 1st plaintiff, both physically and mentally.
Therefore, 1st plaintiff was constrained to desert 5th defendant
along with 2nd plaintiff and started to reside separately. Since
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the plaintiffs do not have any source of income and 2nd plaintiff
is the minor daughter of 5th defendant, the plaintiffs have filed
the suit for partition and maintenance.
16. It is the case of the defendants that there were
partitions effected on 03.08.2018, 28.09.2018, 24.01.2014,
30.12.2013 and 19.05.2015, but to prove these partitions
which were effected in the family of the defendants, the
defendants have not filed any documentary evidence. Though
5th defendant got examined as DW.1, he has only produced a
certified copy of the order in Crl.Misc.No.18/2019 which was
filed by the plaintiffs for protection and compensation.
Therefore, contentions that there were earlier partitions in the
family, which are not proved. Furthermore, the registered
partition deed dated 03.08.2018 as per Ex.P31 was created
only for the purpose of defeating the rights of claim of the
plaintiffs and the said partition was an inequitable partition. As
per the said partition at Ex.P31, 1 acre of land has been given
to 5th defendant as his share out of 13 acres 3 guntas of land.
The rest of 12 acres 3 guntas of land was shared between
defendant Nos.1 to 4. The arrangement is made to effect that
out of total extent of 13 acres 3 guntas of land, 1st defendant
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has been given 2 acres and 25 guntas of land, 2nd defendant
has been given 16 guntas of land, 3rd defendant has been given
4 acres and 26 guntas of land, 4th defendant has been given 2
acres and 20 guntas of land, but 5th defendant has been given
only 1 acre of land. While considering these partition
arrangements made by the defendants as per Ex.P31, this is
found to be inequitable partitions and were created with an
intention to defeat the legitimate claim of 2nd plaintiff-minor
daughter of 5th defendant. Therefore, the trial Court is correct
in disbelieving the partition deed as per Ex.P31. Therefore, the
registered partition dated 03.08.2018 as per Ex.P31 is not
binding on the share of the 2nd plaintiff. It is proved that the
said partition deed as per Ex.P31 was created to defeat the
legitimate rights of 2nd plaintiff and also the claim for the
maintenance amount of the plaintiffs. Therefore, in this regard,
the finding of the trial Court is correct, which does not call for
interference.
17. DW.1 has admitted all these facts in his cross
examination, defendant Nos.1 to 4 were given garden lands,
whereas 5th defendant was given dry land to an extent of 1
acre. This manifestly proves that the partition deed as per
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Ex.P31 was a well-planned arrangement just to defeat the
rights and claims of the plaintiffs.
18. Upon perusing the materials on record, it is noticed
that 5th defendant, who was working as a Surveyor in the office
of the Assistant Director, Survey Department, Hassan, has
taken voluntary retirement from the service. Therefore, the
plaintiffs have filed Crl.Mis.No.18/2019 and
Crl.Misc.No.11/2019 for maintenance. Both petitions came to
be dismissed on the reason that the trial Court has granted
maintenance amount of Rs.20,000/- per month to the plaintiffs.
Therefore, when the relationship between the plaintiffs and 5th
defendant is admitted and the plaintiffs are residing separately,
5th defendant is liable to maintain the plaintiffs. During the
course of the cross-examination of 5th defendant, admitted that
he does not know the education expenses of 2nd plaintiff, which
are paid by 1st plaintiff. 5th defendant, being the father of 2nd
plaintiff, has not done anything for the welfare of 2nd plaintiff-
minor daughter. Therefore, 5th defendant, who is the
Government Servant, has claimed that he has taken a
voluntary retirement, which cannot absolve him of his
responsibilities for maintaining his wife and child. Therefore,
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considering the expenses incurred for living peaceful or decent
life for the plaintiffs and 2nd plaintiff is pursuing school
education, the plaintiffs need maintenance amount and
accordingly, the trial Court has granted maintenance amount of
Rs.20,000/- per month to the plaintiffs payable by 5th
defendant, which is justifiable and correct and the same does
not call for interference by this Court.
19. Merely because, the plaintiffs and defendant No.5
have not submitted affidavit assets and liabilities, the same
cannot be a reason to deny/refuse grant of maintenance to the
plaintiffs. The filing of an affidavit in this regard only enables
the Court to come to a conclusion to determine the quantity of
maintenance amount. Even though, without the affidavit, the
Court can determine as to what will be the amount required for
maintaining the wife and child. On this ground, it cannot be
said that the trial Court erred in granting the maintenance in
this case. Therefore, I do not find any ground to interfere with
the finding and observation made by the trial Court and thus,
the appeal is found to be devoid of merits and is liable to be
dismissed at the stage of admission itself and it is also not a fit
case for admission.
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20. Accordingly, I proceed to pass the following:
ORDER
i. The appeal is dismissed.
ii. The judgment and decree dated
05.02.2022 passed by the Trial Court
in O.S.No.21/2019 is hereby
confirmed.
iii. No order as to costs.
Sd/-
JUDGE
KTY
