Karnataka High Court

Shri. Devidas S/O. Balappa Patil vs Smt. Sugandha W/O. Sadashiv Patil on 4 March, 2024

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                                                                RFA No. 100123 of 2019




                            IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                  DATED THIS THE 4TH DAY OF MARCH, 2024
                                                  PRESENT
                                   THE HON'BLE MR JUSTICE E.S.INDIRESH
                                                     AND
                             THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
                            REGULAR FIRST APPEAL NO. 100123 OF 2019 (PAR/POS)


                       BETWEEN:
                       1.    SHRI. DEVIDAS S/O. BALAPPA PATIL
                             AGE: 57 YEARS,
                             OCC: EX. ARMY SERVICEMAN,
                             R/O: 214, PLOT NO.30,
                             SAMBHAJI NAGAR, VADAGAON,
                             BELAGAVI.

                       2.    SMT. DRAUPADI W/O. DEVIDAS PATIL
                             AGE: 52 YEARS, OCC: HOUSEHOLD WORKS,
                             R/O: 214, PLOT NO.30,
                             SAMBHAJI NAGAR, VADAGAON,
                             BELAGAVI.
                                                                           ...APPELLANTS
                       (BY SRI.SHARAD V.MAGADUM, ADVOCATE)


                       AND:
SHIVAKUMAR
HIREMATH
                       1.    SMT. SUGANDHA W/O. SADASHIV PATIL
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
                             AGE: 59 YEARS, OCC: HOUSEHOLD WORKS,
Date: 2024.03.19
14:36:02 +0530
                             R/O: 214, PLOT NO.30,
                             SAMBHAJI NAGAR, VADAGAON,
                             BELAGAVI-590 001.

                       2.    SHRI. UTTAM S/O. SADASHIV PATIL
                             AGE: 38 YEARS, OCC: BUSINESS,
                             R/O: 214, PLOT NO.30, SAMBHAJI NAGAR,
                             VADAGAON, BELAGAVI-590 001.

                       3.    SMT. VAISHALI W/O. VINAYAK MANE
                             AGE: 34 YEARS, OCC: HOUSEHOLD WORKS,
                             R/O: MANJARI, TAL: CHIKKODI,
                             DIST: BELAGAVI-590 001.
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                                        NC: 2024:KHC-D:4795-DB
                                      RFA No. 100123 of 2019




4.   SMT. JAYASHREE W/O. JOTIBA TIPKURLE
     AGE: 62 YEARS, OCC: HOUSEHOLD WORKS,
     R/O: AT/PO: MATTIWADE, TAL: HUKKERI,
     DIST: BELAGAVI-590 001.

5.   SMT. INDU W/O. BABURAO TIPKURLE
     AGE: 54 YEARS, OCC: HOUSEHOLD WORKS,
     R/O: AT/PO: MATTIWADE, TAL: HUKKERI,
     DIST: BELAGAVI - 590 001.

     SMT. LAXMI W/O. CHUDAPPA DESAI
     SINCE DECEASED THROUGH HER LRs.,

6.   MISS. DHANASHREE D/O. CHUDAPPA DESAI
     AGE: 33 YEARS, OCC: PRIVATE SERVICE,
     C/O. SHRI. S.N.PATIL,
     SAMBHAJI NAGAR, VADAGAON,
     BELAGAVI-590 001.

7.   SHRI. MAHADEV S/O. BALAPPA PATIL
     AGE: 76 YEARS, OCC: NIL,
     R/O: H.NO.537, TANAJI GALLI, YELLUR,
     TAL AND DIST: BELAGAVI-590 001.

8.   SHRI. DATTATREYA S/O. BALAPPA PATIL
     AGE: 73 YEARS,
     OCC: EX-ARMY SERVICEMAN,
     R/O: H.NO.214, PLOT NO.30,
     SAMBHAJI NAGAR, VADAGAON,
     BELAGAVI-590 001.

     SMT. GUNAVANTA W/O. IRAPPA DESAI
     SINCE DECEASED THROUGH HER LRs.,

9.   SHRI. RAMCHANDRA S/O. IRAPPA DESAI
     AGE: 61 YEARS, OCC: MASON WORK
     R/O: 2ND CROSS, MANGAI NAGAR,
     YELLUR, TAL AND DIST: BELAGAVI-590001.

10. SHRI. BANDU S/O. IRAPPA DESAI
    AGE: 57 YEARS, OCC: MASON WORK,
    R/O: OMKAR NAGAR,
    M-VADAGAON, BELAGAVI,
    TAL AND DIST: BELAGAVI-590001.

11. SHRI. NARSIMHA S/O. IRAPPA DESAI
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                                         RFA No. 100123 of 2019




    AGE: 54 YEARS, OCC: CENTERING,
    R/O: HALASIWADI, TAL: KHANAPUR,
    DIST: BELAGAVI-590001.

12. SMT. GEETA W/O. GURUNATH DESAI
    AGE: 49 YEARS,
    OCC: HOUSEHOLD WORKS,
    R/O: OMKAR NAGAR,
    M-VADAGAON, BELAGAVI,
    TAL AND DIST: BELAGAVI.
                                             ...RESPONDENTS
(BY SRI.DINESH M.KULKARNI, ADVOCATE FOR R1 TO R6;
    NOTICE TO R7 TO R11 ARE SERVED;
    NOTICE TO R12 HELD SUFFICIENT V/O DATED 22.08.2023)

     THIS RFA IS FILED UNDER SEC.96 READ WITH ORDER 41
RULE 1 OF CPC., AGAINST THE JUDGMETN AND DECREE DATED
27.11.2018 PASSED IN O.S.NO.183/2010 ON THE FILE OF THE II
ADDITIONAL    SENIOR    CIVIL    JUDGE      AND     CHIEF     JUDICIAL
MAGISTRATE, BELAGAVI, PARTLY DECREEING THE SUIT FILED FOR
PARTITION    AND   SEPARATE     POSSESSION,       DELCARATION      AND
CONSEQUENTIAL RELIEF OF PERMANENT INJUNCTION.


     THIS    APPEAL   COMING     ON   FOR   HEARING,        THIS   DAY,
E.S.INDIRESH, J., DELIVERED THE FOLLOWING:



                         JUDGMENT

This First Appeal is preferred by defendant Nos.3 and

4 challenging the judgment and decree dated 27.11.2018

passed in Original Suit No.183 of 2010 on the file of the II

Additional Senior civil Judge and CJM, at Belagavi (for

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short, hereinafter referred to as 'Trial Court'), wherein the

suit of the plaintiffs came to be decreed in part.

2. For the sake of convenience, the parties are

referred to as per their ranking before the Trial Court.

3. Brief facts of the case are that, the suit schedule

properties are originally belonged to one Balappa, and he

died during February 1977, leaving behind his wife-

Gangubai and eight children namely, Sri Mahadev

(defendant No.1), Sri Dattatreya (defendant No.2), Sri

Devidas, (defendant No.3), Smt Gunvanta, (defendant

No.5). Sadashiv-another son of Balappa, died on

19.06.2010 leaving behind his wife Smt. Sugandha

(plaintiff No.1) and two children, namely, Sri Uttam

(Plaintiff No.2) and Smt Vaishali (defendant No.3) and

further, Balappa had daughters, namely, Smt Jayashree

(plaintiff No.4), Smt Indu (plaintiff No.5) and Smt.

Lakshmi (plaintiff No.6). Defendant No.4 is the wife of

Defendant No.3. It is the case of the plaintiffs that, the

propositus-Balappa had ancestral properties and after his

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demise, the plaintiffs and defendants are entitled for

equitable share in the suit schedule property consisting

of 9 items as mentioned in the schedule 'A' property. It is

the grievance of the plaintiffs that Item No.7 in the

schedule property, is being claimed by the defendant

No.3, as his self acquired property in terms of the

Registered Sale Deed 22.04.1974 and as such, the

plaintiffs have filed suit in OS No.183 of 2010 seeking

relief of partition and separate possession in respect of the

suit schedule property.

4. After service of notice, defendants 2 to 5

entered appearance and filed detailed written statement.

Defendant No.1 unrepresented and remained ex-parte.

Defendant No.2 has filed written statement and defendant

Nos.3 and 4 have filed their joint written statement

denying the claim made by the plaintiffs. It is the specific

case of defendant No.2 that, his father Balappa was

agriculturist and the defendant No.2 was working in Indian

Army during 1964 and he was only earning member of the

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family and as such, he was sending money to his father

Balappa and out of the said amount sent by him, his father

Balappa had purchased the suit property plot No.30 and

he further contended that, there was earlier partition

between the father of the defendant Nos. 1 to 3-Sadashiv,

defendant Nos.2 and 3 in respect of the suit schedule

property and therefore, it is further contended that the

properties are being partitioned and thereafter mutation

entries have been modified in the revenue records and as

such, it is contended that the suit filed by the plaintiffs is

not maintainable. Defendant No.2 also refers to the suit

filed by him against the defendant No.3, seeking relief of

injunction and same was decreed and therefore, it is

contended that as the plaintiffs herein were aware about

the various suits filed by the parties interse and cannot

make separate claim in respect of the suit schedule

properties and therefore, sought for dismissal of the suit.

5. Defendant Nos.3 and 4 have filed written

statement contending that, plot No.30 mentioned in the

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suit schedule property, has been acquired by the

defendant No.3, independently, and therefore, the said

property cannot be considered as joint family property of

the parties. It is the specific contention that, defendant

No.3 has purchased Item No.7 in the suit schedule

property as per Registered Sale Deed dated 22.04.1974

from the income he derived from his self acquisition and

as such, it is claimed that the Item No.7 of the suit

schedule property cannot be considered as part of the

joint family property and accordingly, sought for dismissal

of the suit. It is also contended that, there are four suits

filed amongst the children of original propositus Balappa

Patil and referring to those suits, it is pleaded that, the

suit filed by the plaintiffs is not maintainable and

accordingly, sought for dismissal of the suit.

6. The Trial Court, based on the pleadings on record,

has formulated following issues for its consideration:

1. Do the plaintiffs prove that the suit properties are all the ancestral and joint family properties and that

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they are in joint possession along with the defendants ?

2. Do the plaintiffs prove that out of the joint family nucleus the propositus purchased plot No.30 measuring 3 guntas in the name of defendant No.3 ?

3. Does 2nd defendant proves that due to his financial assistance given to his father, plot NO.30 in R.S.No.214 was purchased in the name of defendant No.3, who is only a benamidar for the entire joint family ?

4. Does 2nd defendant proves that, between the brothers an oral partition took place on 27.03.1983 and properties were mutated as per the wardi ?

5. Does the defendant No.2 proves that in the said oral partition plot No.30 has fallen to the defendant Nos.2 and 3 and late Sadashiv and accordingly wardi was given by df No.3 to the authorities ?

6. Do the plaintiffs and defendant No.2 prove that in between the houses in plot No.30, an open space is situate which is kept for joint enjoyment of the parties ?

7. Do the plaintiffs and defendant No.2 prove that defendant No.3 has illegally created a gift deed in favour of his wife defendant No.4 on 03.06.2003 and

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the same does not bind the interests of the other co-

sharers ?

8. Do defendant Nos.3 and 4 prove that the plot No.30 has been acquired by defendant No.3 out of his own funds and it is his self acquired property ?

9. Is the suit barred by limitation ?

10. Are the plaintiffs entitled to the relief of declaration as sought for ?

11. Are the plaintiffs entitled to the relief of partition as sought for ?

12. Are the plaintiffs entitled to the relief of permanent injunction as sought for ?

13. What order or decree ?

7. In order to establish their case, plaintiffs have

examined two witnesses as PW1 and PW2 and produced

41 documents, which were marked as Exhibits P1 to P41.

On the other hand, defendant No.3 examined himself as

DW1 and produced 30 documents, which were marked as

Exhibits D1 to D30.

8. The Trial Court, after considering the material on

record, by its judgment and decree dated 27.11.2018

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decreed the suit of the plaintiffs in part and being

aggrieved by the same, the defendant Nos.3 and 4 have

preferred this Regular First Appeal.

9. We have heard Sri Sharad V. Magadum, learned

counsel appearing for appellants; Sri Dinesh M. Kulkarni,

learned counsel appearing for respondents.

10. Sri Sharad V. Magadum, learned counsel

appearing for appellants contended that the impugned

judgment and decree passed by the trial Court requires

modification in respect of shares of the parties are

concerned and it is the principal argument of the learned

counsel appearing for the appellants that the trial Court

has not considered and appreciated the Registered Sale

Deed 22.07.1974 (Ex.D14) wherein, the defendant No.3 in

unequivocal terms proved that, he had purchased the Item

No.7 in the suit schedule property on account of his own

exertion and therefore, contended that the finding

recorded by the trial Court in respect of the issue No.8,

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requires re-consideration in this appeal and accordingly,

he sought for interference of this court.

11. Per contra, Sri Dinesh M.Kulkarni, learned

counsel appearing for respondents 1 to 6/plaintiffs

supported the impugned judgment and decree passed by

the Trial Court and argued that, finding recorded by the by

the trial Court is just and proper as the defendant No.3

has no independent income during 1974 to acquire the suit

schedule property mentioned at Item No.7. He further

contended that the plaintiffs have proved the relationship

between the parties as well as the suit schedule properties

are the joint family properties of the father in law of

plaintiff No.1 and therefore, he contended that, the

impugned judgment and decree passed by the trial Court

is to be confirmed in this appeal with necessary

modification in respect of shares of the parties in view of

the judgment rendered by the Hon'ble Supreme Court in

the case of Vineeta Sharma vs. Rakesh Sharma

reported in 2020 (9) SCC 1.

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12. Having heard the learned counsel appearing for

the parties and taking into consideration the grounds

urged in the Memorandum of Appeal, the following points

arise for consideration:

i) Whether the finding recorded by the trial Court

on Issue No.8 requires interference in this appeal

?

ii) Whether the finding recorded by the trial Court

with regard to allotment of shares of the parties

requires modification in view of the judgment

rendered by the Hon'ble Supreme Court in the

case of Vineeta Sharma supra ?

iii) What order ?

13. Having taken note of the submission made by

the learned counsel appearing for the parties and in order

to understand the relationship between the parties, the

following genealogical tree reads as under:

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Balappa-Died in Feb 1977

(Gangubai) Died on 20.10.1995

Mahadev Dattatray Gunvata Sadashiv Jayashree Devidas Indu Lakshmi (D-1) (D-2) (D-5) died (P-4) (D-3) (P-5) (P-6) On 16-6-2010

Smt. Sugandha (P-1) Draupadi (D-4)

Uttam (P-2) Vaishali (P-3)

14. On perusal of the genealogical tree, it is not in

dispute that the original propositus Balappa died during 1977

leaving behind his wife and children. His wife Gangubai died on

20.10.1995 leaving behind eight children namely, defendant

Nos.1, 2, 3, and 5 and plaintiff Nos. 5 and 6 and husband of

the plaintiff No.1-Sadashiv. Plaintiff Nos.2 and 3 are the

children of plaintiff No.1 and late Sadashiv. Defendant No.4 is

the wife of defendant No.3, wherein the defendant No.3 had

executed gift deed in favour of the defendant No.4 on

03.06.2003 in respect of Item No.7 of the suit schedule

property. Having taken note of the grounds urged in the

Memorandum of appeal, the only question to be answered in

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this appeal is with regard to Item No.7 of the suit schedule

property is the self acquired property of defendant No.3 and in

this connection, we have examined the recitals in Ex.D14-

Registered Sale Deed dated 22.07.1974, whereby, nothing is

disclosed in the Registered Sale Deed relating to source of

income by the defendant No.3 to purchase the Item No.7. That

apart, on careful examination of the finding recorded by the

trial Court would indicate that the defendant No.3 claimed Item

No.7 of the suit schedule property as self acquired property on

the ground that, he was working in a private job and on

account on the salary obtained by him in the said employment

as he had purchased Item No.7 of the suit schedule property.

The perusal of the finding recorded by the trial Court

particularly with regard to paragraph 32 of the impugned

judgment and decree would indicate that, the defendant No.3

has not produced any documents to establish that he was

working in a private job. If at all the defendant No.3 was

working in a private job, nothing has prevented the defendant

No.3 to examine his employer to establish that, he was getting

handsome salary to purchase the Item No.7 of the suit schedule

property. It is also to be noted that, no documents are

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produced by the defendant No.3, particularly, salary certificate

issued by the concerned employer in his favour, to

demonstrates that the defendant No.3 was working in private

job and same would establish the fact that the defendant No.3

has no independent source of income to purchase the Item

No.7 of the suit schedule property and in this regard, the

finding recorded by the trial Court is just and proper and does

not call for interference in this appeal.

15. That apart, perusal of the impugned judgment and

decree of the trial Court would indicate that, the husband of the

plaintiff No.1-Sadashiv, had filed OS No.283 of 2007 against the

defendant Nos.3 and 4 seeking, relief of permanent injunction

in respect of Item No.7 of the suit schedule property and said

suit came to be dismissed for non prosecution on 27.11.2007

(Exs.D1 to D3). It is also to be noted that, the husband of the

plaintiff No.1-Sadashiv had filed OS No.12 of 2005 seeking

relief of declaration with consequential relief of injunction in

respect of the suit schedule properties and the said suit came to

be dismissed on 28.11.2005 as not maintainable (Exs.D4 to

D6). Perusal of the record would further indicate that,

defendant No.2 has filed OS No.480 of 2007 seeking declaration

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and consequential relief of injunction in respect of Item No.7 of

the suit schedule property against the husband of the plaintiff

No.1, defendant Nos.3 and 4 and the said suit was dismissed on

18.01.2008 (Exs.D8 to D10). It is also emphasized by the

parties at the time of arguments that, the defendant No.4 has

filed OS No. 281 of 2007 against defendant No.2 and husband

of the plaintiff No.1, seeking relief of injunction in respect of

the suit schedule property and the said suit came to be decreed

on 29.07.2008 (Ex.D12 to D13) and thereafter the said

judgment and decree passed by the trial Court was rejected in

RA No.168 of 2008 by the First Appellate Court as per judgment

and decree dated 11.10.2013 (Exs.D29 and D30). It is also

pertinent to mention here that, defendant No.2 has filed OS

No.650 of 1992 against defendant No.3 seeking relief of

perpetual injunction and the said suit came to be decreed as

per judgment and decree dated 28.01.1995 vide Ex.D26 and

the said judgment and decree passed by the trial Court reached

finality. In view of the finding recorded by jurisdictional courts

in the suits and appeal referred to above, the outcome of the

judgment and decree has not resulted in crystallizing the rights

of the parties in respect of the suit properties and therefore, we

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are of the opinion that defendant No.3 has not made out case

for interference in respect of the finding recorded by trial Court

with regard to the devolution of the properties. However, it is

not in dispute that the original propositus Balappa had eight

children and in view of the judgment rendered by the Hon'ble

Supreme Court in the case of Vineeta Sharma (surpa), the

daughters are also to be considered as co-parceners, who

acquire the joint family properties along with the sons, and

therefore, the children of the Balappa, together entitled for

1/8th share each in the suit schedule property. In that view of

the matter, the plaintiff Nos.1 to 3 being the legal

representatives of the deceased Sadashiv (4th son of Balappa),

together entitled for 1/8th share in the suit schedule property.

In the result, we pass the following:

ORDER

1) Regular First Appeal is allowed in part.

2) Judgment and decree dated 27.11.2018 passed

in Original Suit No.183 of 2010 on the file of

the II Additional Senior civil Judge and CJM, at

Belagavi, is confirmed with regard to the

finding recorded by trial Court on issue No.8,