Karnataka High Court
Surekha And Ors vs Sita And Ors on 10 June, 2024
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RFA No.200061 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO.200061 OF 2018 (PAR)
BETWEEN:
1. SUREKHA
W/O SUBHASH DHILOR,
AGE: 45 YEARS,
OCC: HOUSEHOLD,
R/O : MUMBAI NOW AT
H.NO.F-8 FARUQ APARTMENT
BESIDES LALITH GARDEN AND
RESTAURANT NEAR R.T.O. OFFICE,
SEDUM ROAD, KALABURAGI - 585 102.
2. RAJESH
Digitally signed by
BASALINGAPPA S/O AJABSING CHADDA,
SHIVARAJ
DHUTTARGAON AGE: 41 YEARS,
Location: HIGH OCC: LECTURER,
COURT OF
KARNATAKA R/O : H.NO.F-8 FARUQ APARTMENT
BESIDES LALITH GARDEN AND
RESTAURANT, NEAR R.T.O. OFFICE,
SEDUM ROAD, KALABURAGI - 585 102.
3. REKHA
W/O ASHOK SWODI,
AGE: 38 YEARS,
OCC: HOUSEHOLD,
R/O : HYDERABAD NOW AT
H.NO.F-8 FARUQ APARTMENT
BESIDES LALITH GARDEN AND
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RFA No.200061 of 2018
RESTAURANT, NEAR R.T.O. OFFICE,
SEDUM ROAD, KALABURAGI - 585 102.
...APPELLANTS
(BY SRI. JIDAGE KAILASH C., ADVOCATE)
AND:
1. SITA W/O RAKESH CHADDA,
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O: H.NO.3-767 GAZIPUR,
KALABURAGI - 585 102.
2. SHAMABAI
W/O AJABSINGH CHADDA,
AGE: 61 YEARS,
OCC: AAYA (WARD)
G.G.H., GULBARGA
R/O: H.NO.3-767 GAZIPUR,
KALABURAGI - 585 102.
3. RAJAT
S/O RAKESH CHADDA,
AGE: 25 YEARS,
OCC: STUDENT,
4. SUBHAM
S/O RAKESH CHADDA,
AGE: 24 YEARS,
OCC: STUDENT,
5. SHILPA
D/O RAKESH CHADDA,
AGE: 28 YEARS,
OCC: STUDENT,
6. POONAM
D/O RAKESH CHADDA,
AGE: 26 YEARS,
OCC: STUDENT,
DEFENDANT NO.3 TO 6 ARE ALL
R/O: H.NO.3-767 GAZIPUR,
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RFA No.200061 of 2018
KALABURAGI - 585 102.
...RESPONDENTS
(BY SRI SUBHASH MALLAPUR, ADVOCATE FOR R2;
V/O DATED 03.06.2022, NOTICE TO
R1, R3 TO R6 HELD SUFFICIENT)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CIVIL PROCEDURE CODE, PRAYING TO ALLOW THE
APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED
03.03.2018 PASSED BY II-ADDITIONAL SENIOR CIVIL JUDGE
AT KALABURAGI IN O.S.NO.37/2013 AND CONSEQUENTLY,
DECREE THE SUIT IN THE INTEREST OF JUSTICE AND EQUITY.
THIS REGULAR FIRST APPEAL COMING ON FOR FINAL
HEARING, THIS DAY, ASHOK S. KINAGI J., DELIVERED THE
FOLLOWING:
JUDGMENT
This Regular First Appeal is filed by the appellants
challenging the portion of the judgment and preliminary
decree dated 03.03.2018 in O.S.No.37/2013 passed by II-
Additional Senior Civil Judge, Kalaburagi, (for short,
hereinafter referred to as 'Trial Court').
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
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3. The appellants are the plaintiffs and the
respondents are the defendants.
4. Brief facts of the plaint averments:
Plaintiffs filed a suit for partition and separation
possession of the suit schedule properties. It is the case
of the plaintiffs that one Ajab Singh was the propositus, he
died leaving behind his wife (defendant No.2), sons by
name Rakesh, Rajesh and Ravi and daughters by name
Surekha and Rekha. The mother of Ajab Singh by name
Chandrabai had purchased item No.1 of the suit schedule
properties in the name of deceased-Rakesh i.e,. husband
of defendant No.1 when he was at the age of 08 years, but
in the sale deed his age was shown as 22 years. After the
death of Rakesh, his wife i.e., defendant No.1 got
transferred the said property in her name. Item No.2 of
the suit schedule properties is standing in the name of
grandmother. The plaintiffs and the defendants are in joint
possession and enjoyment of suit schedule properties.
The plaintiffs and defendants are the members of the
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Hindu Undivided Joint Family. The plaintiffs being the
coparceners are entitled for share in the suit schedule
properties. The plaintiffs demanded for partition and
separate possession of the suit schedule properties, but
the defendants refused to effect the partition. Hence, the
cause of action arose for the plaintiffs to file a suit for
partition and separate possession.
5. In pursuance of service of summons, defendant
No.1 appeared and filed written statement admitting the
relationship between the parties. She also admitted that
item No.2 of the suit schedule properties is the joint family
property, but contended that item No.1 of the suit
schedule properties is the self-acquired property of her
husband having purchased under the registered sale deed
dated 26.02.1980 from one Manohar Ganpathrao Akde.
After the death of her husband, she and her children
became the absolute owners in possession of the said
property and contended that her children are also
necessary parties to the suit. Hence, the suit is not
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maintainable for non-joinder of necessary parties. Hence,
prays to dismiss the suit.
6. The Trial Court, on the basis of the pleadings of
the parties, framed the following issues:
i. Whether the plaintiffs prove that the
suit schedule properties are ancestral
joint family properties of their family
and they are in joint possession and
enjoyment of the same along with the
defendants as on the date of filing the
suit?
ii. Whether the plaintiffs further prove
that the cause of action has arisen to
file the suit during the first week of
February 2013 when the defendants
refused to give the rent account of
house property and refused to effect
the partition in the suit schedule
properties?
iii. Whether the defendant No.1 proves
that suit is bad for non-joinder of
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necessary parties, as her children has
not made as parties to the suit?
iv. Whether the defendant further proves
that suit item No.1 house bearing
No.1-269 situated at Siddeshwar
colony, Gulbarga is the self-acquired
property of her husband, therefore it
is not available for partition?
v. Whether the plaintiffs are entitled for
1/5th share each in the suit schedule
properties?
vi. What order or decree?
7. In order to prove the case, plaintiff No.2 was
examined as PW.1 and got marked 13 documents as
Exs.P1 to P13. On the other hand, defendant No.1 was
examined as DW.1 and got marked 09 documents as
Exs.D1 to D9.
8. After recording the evidence, hearing on both
sides and on assessment of the oral and documentary
evidence, the Trial Court answered issue Nos.1 and 5
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partly in the Affirmative and issue Nos.2 and 4 are
answered in the Affirmative and held issue No.3 as does
not survive for consideration and issue No.6 is answered
as per the final order and partly decreed the suit of the
plaintiffs. The Trial Court ordered and decreed that the
plaintiffs and defendant No.2 are entitled for 1/5th each
share in the suit properties item Nos.2 to 4 and defendant
Nos.1 and 3 to 6 being the legal heirs of Rakesh are jointly
entitled for 1/5th share in the suit properties item Nos.2 to
4. The suit in respect of item No.1 property bearing
H.No.1-269 of Siddeshwar Colony, Gulbarga, was
dismissed.
9. The plaintiffs aggrieved by the dismissal of the
suit in respect of item No.1 of the suit schedule properties
have filed the present appeal.
10. Heard the learned counsel for the plaintiffs and
learned counsel for defendant No.2.
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11. Sri Jidage Kailash C., learned counsel for the
plaintiffs submits that item No.1 of the suit schedule
properties was purchased by the grandmother of the
plaintiffs in the name of husband of defendant No.1. He
submits that the said property is a joint family property of
the plaintiffs and defendants. The plaintiffs are entitled for
share in the suit schedule properties. He further submits
that the defendants have not produced any records to
establish that the deceased-Rakesh was having separate
source of income for purchasing item No.1 of the suit
schedule properties. He also submits that as on the date
of purchasing the suit property item No.1 by grandmother-
Chandrabai in the name of husband of defendant No.1, the
husband of defendant No.1 namely, Rakesh was aged
about 08 years and in order to substantiate the age of the
deceased-Rakesh, the plaintiffs have produced copy of the
Transfer Certificate as per Ex.P7 which discloses that the
deceased-Rakesh was born on 13.08.1972. If Ex.P7 is
taken into consideration, the deceased-Rakesh was aged
about 08 years as on the date of execution of the
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registered sale deed i.e., on 20.02.1980. Hence, he
submits that the Trial Court has committed an error in
dismissing the suit in respect of item No.1 of the suit
schedule properties. On these grounds, he prays to allow
the appeal.
12. Per contra, Sri Subhash Mallapur, learned
counsel for defendant No.2 submits that as on the date of
purchasing of item No.1 of the suit schedule properties,
the deceased-Rakesh was aged about 22 years and he has
purchased the said property out of his own income.
Hence, it is the self-acquired property of husband of
defendant No.1. Therefore, the Trial Court is justified in
dismissing the suit in respect of item No.1 of the suit
schedule properties. On these grounds, he prays to
dismiss the appeal.
13. We have perused the entire records and
considered the submissions of the leaned counsel for the
parties.
14. The points that arise for our consideration are:
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1) Whether the plaintiffs prove that
the suit property in item No.1 is
the joint family property of the
plaintiffs and defendants?
2) Whether the plaintiffs prove that
the Trial Court has committed
an error in dismissing the suit in
respect of item No.1 of the suit
schedule properties?
3) What Order or decree?
15. Point Nos.1 and 2 are interconnected with each
other. Hence, in order to avoid repetition of facts, they are
taken up together for discussion.
16. Point Nos.1 & 2: In order to prove the case,
plaintiff No.2 was examined as PW.1 and further, PW.1 has
reiterated the plaint averments in the examination-in-chief
and also produced documents in order to establish that the
suit schedule properties are the ancestral and joint family
properties of the plaintiffs and defendants. The plaintiffs
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have produced document at Ex.P1 which is the certified
copy of the registered sale deed in respect of item No.1 of
the suit schedule properties. Exs.P2 and P3 are the
certified copies of the registered sale deeds. Ex.P4 is the
property tax returns Form. Ex.P5 is the School records
pertaining to plaintiff No.1. Ex.P6 is the Transfer
Certificate pertaining to plaintiff No.3. Ex.P7 is the
Transfer Certificate pertaining to Rakesh i.e., husband of
defendant No.1. Ex.P7 discloses that Rakesh was born on
13.08.1972 and Ex.P8 is the SSLC marks card pertaining
to Rajesh/plaintiff No.2. Ex.P9 is the Death Certificate of
Ajab Singh which discloses that he died on 01.11.1980.
Ex.P12 is the Official Memorandum passed by District
Surgeon and Ex.P13 is the Survival Certificate.
17. It is the case of the plaintiffs that item No.1 of
the suit schedule properties was purchased by
grandmother-Chandrabai in the name of husband of
defendant No.1 i.e., Rakesh in the year 1980 as per Ex.P1.
Though the defendants have taken defence that as on the
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date of the execution of the registered sale deed, Rakesh
was aged about 22 years, in order to rebut the said
contention, the plaintiffs have produced Ex.P7 which
discloses that as on the date of the execution of the
registered sale deed, the deceased-Rakesh was hardly
aged about 08 years. The defendants have not seriously
disputed Ex.P7. In rebuttal, defendant No.1 has examined
herself as DW.1 and she has reiterated the written
statement averments in the examination-in-chief. In order
to establish that her husband has purchased item No.1 of
the suit schedule properties, she has produced Ex.D1 i.e.,
certified copy of the sale deed executed on 26.02.1980
wherein age of the deceased-Rakesh is shown as 22 years.
The age shown in Ex.D1-sale deed is contrary to Ex.P7-
Transfer Certificate. Exs.D2 and D3 are two panchayat
extracts, Exs.D4 to 6 are tax paid receipts, Ex.D7 is the no
due certificate, Ex.D8 is the mutation extract and Ex.D9 is
the Panchayat extracts.
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18. From perusal of the oral evidence of PW.1 and
DW.1 and the documents, it discloses that as on the date
of purchasing of item No.1 of the suit schedule properties,
husband of defendant No.1 i.e., Rakesh was aged about
08 years. Further, the defendants have not produced any
records to establish that husband of defendant No.1 was
having separate source of income for purchasing item No.1
of the suit schedule properties. From the perusal of the
impugned judgment, it is clear that the Trial Court has not
considered Ex.P1. It has placed reliance on Ex.D1 wherein
age of the deceased-Rakesh is shown as 22 years.
Further, the Trial Court has not discussed as to how
Rakesh acquired item No.1 of the suit schedule properties
and also source of income. The defendants have failed to
prove that the deceased-Rakesh was having separate
source of income for purchasing item No.1 of the suit
schedule properties. Hence, we hold that item No.1 of the
suit schedule properties was purchased by grandmother-
Chandrabai in the name of Rakesh. As such, item No.1 of
the suit schedule properties is the joint family property of
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the plaintiffs and the defendants. The plaintiffs are
entitled for share in item No.1 of the suit schedule
properties. The Trial Court has committed an error in
dismissing the suit in respect of item No.1 of the suit
schedule properties.
19. In view of the above discussion, we answer
point Nos.1 and 2 in the Affirmative.
20. Point No.3: In view of our answer to point
Nos.1 and 2, we proceed to pass the following:
ORDER
i. The Regular First Appeal is allowed.
ii. The impugned judgment and
preliminary decree passed by the Trial
Court dismissing the suit in respect of
item No.1 of the suit schedule
properties is set aside.
iii. The suit of the plaintiffs in respect of
item No.1 of the suit schedule
properties is decreed.
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iv. The plaintiffs and defendant No.2 are
entitled for 1/5th share in item No.1 of
the suit schedule properties and
defendant Nos.1 and 3 to 6 being the
legal heirs of the deceased-Rakesh are
jointly entitled for 1/5th share in item
No.1 of the suit schedule properties.
v. Rest of the judgment passed by the
Trial Court is confirmed.
vi. Draw the preliminary decree
accordingly.
vii. No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
NB
