Karnataka High Court
Smt.Ratnawwa vs Irappa on 4 March, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:4879
RSA No. 100809 of 2016
C/W RSA.CROB No. 100005 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO.100809 OF 2016 (PAR)
C/W
RSA CROSS OBJ NO.100005 OF 2018
IN RSA NO.100809/2016
BETWEEN:
SMT.RATNAWWA,
W/O. SHIVAGOUDA BANAKAR,
AGE: 56 YEARS, OCC: HOUSEHOLD,
R/O: SURALESHWAR, TQ: HANGAL,
DIST: HAVERI. PIN CODE - 581 104,
R/BY GPA HOLDER,
B.MALLESHAPPA S/O B.IRAPPA,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: NIRALAGI VILLAGE,
HOBALI: ANAVATTI,
TQ: SORAB, DIST: SHIVAMOGGA,
PIN CODE - 577 429.
Digitally signed by ...APPELLANT
SUJATA
SUBHASH (BY SRI. MAHESH WODEYAR, ADVOCATE)
PAMMAR
Location: HIGH
COURT OF AND:
KARNATAKA
1. IRAPPA, S/O. HANUMANTAPPA HUNASIKATII,
AGE: 65 YEARS,
OCC: AGRICULTURE,
R/O: SURALESHWAR,
TQ: HANGAL,
DIST: HAVERI,
PIN CODE - 581 104.
2. SHEKHAPPA,
S/O HANUMANTAPPA HUNASIKATII,
AGE: 61 YEARS,
OCC: AGRICULTURE,
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NC: 2024:KHC-D:4879
RSA No. 100809 of 2016
C/W RSA.CROB No. 100005 of 2018
R/O: SURALESHWAR,
TQ: HANGAL,
DIST: HAVERI,
PIN CODE - 581 104.
3. SMT.SHARADA,
W/O. MALLESHAPPA BISALAHALLI,
AGE: 48 YEARS,
OCC: HOUSEHOLD WORK,
R/O: NEERALAGI,
TQ: SORAB,
DIST: SHIVAMOGGA,
PIN CODE - 577 429.
...RESPONDENTS
(BY SRI.DINESH M. KULAKARNI, ADVOCATE FOR R1;
SRI. S.B. PATIL, ADOVCATE FOR R3.)
THIS RSA IS FILED UNDER SETION 100 OF CPC, 1908,
AGAINST THE JUDGMENT AND DECREE DATED 08.07.2016 PASSED
IN R.A. NO.40/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC., HANGAL ALLOWING THE APEPAL AND MODIFYING THE
JUDGMENT AND DECREE DATED 05.08.2010 PASSED IN
O.S.NO.250/2008 ON THE FILE OF THE CIVIL JUDGE & JMFC.,
HANGAL DECREEIGN THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
IN RSA CROB NO.100005/2018
BETWEEN:
1. IRAPPA S/O. HANAMANTAPPA HUNASIKATTI,
AGE: 67 YEARS,
OCC: AGRICULTURE,
R/O: SURALESHWAR VILLAGE,
TQ: HANGAL,
DIST: HAVERI - 581 104.
2. SHEKHAPPA,
S/O. HANAMANTAPPA HUNASIKATTI,
AGE: 63 YEARS,
OCC: AGRICULTURE,
R/O: SURALESHWAR VILLAGE,
TQ: HANGAL,
DIST: HAVERI - 581 104.
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RSA No. 100809 of 2016
C/W RSA.CROB No. 100005 of 2018
...CROSS OBJECTORS
(BY SRI. DINESH M.KULKARNI, ADVOCATE)
AND:
1. SMT. RATNAVVA,
W/O. SHIVANNAGOUDA BANAKAR,
AGE: 56 YEARS, OCC: HOUSEHOLD,
R/O: SURALESHWAR VILALGE,
TQ: HANGAL,
DIST: HAVERI - 581 104,
R/BY GPA HOLDER,
B.MALLESHAPPA S/O B. IRAPPA,
AGE: MAJOR,
OCC: AGRICULTURE,
R/O: NEERALGI VILLAGE,
HOBALI: ANAVATTI,
TQ: SORAB,
DIST: SHIVAMOGGA,
PIN - 577 429.
2. SMT.SHARADA,
W/O. MALLESHEPPA BISALAHALLI,
AGE: 52 YEARS,
OCC: HOUSEHOLD,
R/O: NEERALGI,
TQ: SORAB,
DIST: SHIVAMOGGA - 577 429.
...RESPONDENTS
(BY SRI. MAHESH WADYAR, ADVOCATE FOR R1 AND R2)
THIS RSA CROB IN RSA NO.100809/2016 FILED UDNER
ORDER 41 RULE 22 OF CPC AGAINST THE JUDGMENT AND AWARD
DATED 08.07.2016 PASSED IN R.A.NO.40/2010 ON THE FILE OF THE
SENIOR CIVIL JUDGE & JMFC., HANGAL, ALLOWING THE APPEAL
AND MODIFYING THE JUDGMENT AND DECREE DATED 05.08.2010
PASSED IN O.S.NO.250/2008 ON THE FILE OF THE CIVIL JUDGE AND
JMFC., HANGAL, DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS APPEAL AND CROSS OBJECTION, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 100809 of 2016
C/W RSA.CROB No. 100005 of 2018
JUDGMENT
Though the matter is listed for admission, with consent of
the learned counsels appearing for the appellant and
respondents, the case is taken up for final disposal.
2. RSA No.100809/2016 is filed by the appellant -
plaintiff challenging the judgment and decree dated 08.07.2016
in R.A. No.40/2010 passed by the Senior Civil Judge and JMFC,
Hangal at Hangal, confirming the judgment and decree dated
05.08.2010 in O.S. No.250/2008 passed by the Civil Judge and
JMFC, at Hangal.
3. The cross-objection in RSA.Crob.No.100005/2018 is
filed by defendant Nos.1 and 2 challenging the judgment and
decree passed in R.A. No.40/2010 insofar as the properties that
are not included in the suit which is filed by the plaintiff. Hence,
they have contended that the suit is barred for not including all
the properties.
4. For the sake of convenience, the parties are
referred to as per their rankings before the trial Court.
5. The plaintiff has filed the suit for partition and
separate possession claiming her 1/4th share in the suit
schedule properties. The relationship between the plaintiff and
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C/W RSA.CROB No. 100005 of 2018
the defendants is not disputed. The plaintiff and defendants are
children of original propositus - Hanumanthappa, who died on
18.09.2002. Before his death, there was a registered partition
effected on 27.08.1999 between the plaintiff and defendants
and the said Hanumanthappa. Defendant Nos.1 and 2 have
filed the suit in O.S.No.37/2000 for declaration that the
registered partition deed dated 27.08.1999 is unequal partition
affecting registered sale deed and this suit in O.S.No.37/2000
was decreed on 10.11.2008 declaring that the partition deed
dated 27.08.1999 is not correct and accordingly set aside.
Thus, all the suit properties have become joint family
properties, thus on all these facts the plaintiff has filed a suit
for partition and separate possession by metes and bounds.
6. The trial Court has decreed the suit granting 1/4th
share to the plaintiff.
7. Defendant Nos.1 and 2 have filed appeal in
R.A.No.40/2010 and the First Appellate Court has modified the
judgment and decree, modifying the share of properties and
held that the plaintiff and defendant No.3 are daughters of the
original propositus Hanumanthappa. Hence, decreed that the
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C/W RSA.CROB No. 100005 of 2018
plaintiff and defendant No.3 are entitled to 1/12th share in the
suit schedule property.
8. Being aggrieved by modifying the shares in the
properties, thereby reducing the quantum of share to the
plaintiff, the instant second appeal is filed.
9. Defendant Nos.1 and 2 have filed the cross-
objection on the ground that there are two properties namely
R.S.No.1/1A+1B and R.S.No.180, which are not included in the
suit. Therefore, contended that the suit is barred for non-
inclusion of the properties.
10. Heard the arguments from both sides.
11. The following substantial questions of law that
would arise for consideration is as follows:
1. Whether, under the facts and circumstances
involved in the present case, the First Appellate
Court is justified in modifying the judgment and
decree passed by the trial Court by granting
1/12th share to the plaintiff and defendant No.3,
which is contrary to the principles of law laid
down by the Hon'ble Supreme Court in the case
of Vineeta Sharma Vs. Rakesh Sharma reported in
(2020) 9 SCC 1?
2. Whether, under the facts and circumstances
involved in the present case, the finding given
by both the Courts below that the suit is not
barred for non-inclusion of the properties
bearing R.S.No.1/1A+1B & R.S.No.180 is
justified?
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C/W RSA.CROB No. 100005 of 2018
12. Learned counsel appearing for the plaintiff
submitted that the First Appellate Court has modified the share
in the properties of the plaintiff by granting 1/12th share is not
correct as it is contrary to the principles of law laid down by the
Hon'ble Supreme Court in the case of Vineeta Sharma
(Supra). It is further submitted that the First Appellate Court
has adopted the concept of notional partition by following the
judgment of Hon'ble Supreme Court in the case of Prakash
and other V/s Phulavati and Others reported in AIR 2016
SC 769 is not correct as it is overruled in Vineeta Sharma's
Case (Supra). Therefore, he prays to restore the judgment and
decree passed by the trial Court.
13. It is further submitted that the properties bearing
R.S.No.1/1A+1B and R.S.No.180 have already been fallen to
the share of the sons of Mallappa and they were not joint family
properties of the branch of Hanumanthappa. Therefore, they
are not included and this is considered by the both the Courts
below. Therefore, justified the finding of both the Courts below
in this regard by rightly rejecting the contention of the
defendant Nos.1 and 2 of non inclusion of these two properties
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C/W RSA.CROB No. 100005 of 2018
therefore, in totality prays to restore the judgment and decree
passed by the trial Court.
14. On the other hand, learned counsel for defendant
Nos.1 and 2 submitted that all the suit properties are not
ancestral properties included in the suit and therefore the suit
for partition is not maintainable. He submitted that Giriyappa is
the father of Hanumanthappa and Mallappa and there was
partition in the year 1935 and therefore Hanumanthappa and
Mallappa have partitioned the properties to each other. In the
said partition, the properties in R.S.No.1/1A+1B and
R.S.No.180 were not included and the said partition in the year
1935, do remain as an ancestral and joint family properties.
Therefore, these two properties were not partitioned among
Hanumanthappa and Mallappa. Hence, they ought to have
included in the suit but not included. Therefore, the suit is bad
for non-inclusion of all the properties, hence challenged these
judgments and decree passed by both the Courts below. Hence
to this extent, the defendants have filed the cross-objection.
15. The relationship between the plaintiff and the
defendants is not disputed. Hanumanthappa is the propositus.
The plaintiff and defendants are his children. Defendant Nos.1
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C/W RSA.CROB No. 100005 of 2018
and 2 have filed suit in O.S.No.37/2000 and sought for
declaration to declare that registered partition dated
27.08.1999 is unequal, affecting rights of coparcener in the
family and accordingly in the suit in O.S.No.37/2000, decree is
passed on 10.11.2008 and such registered partition deed dated
27.08.1999 is set aside. Thus, all the suit properties have
become ancestral and joint family properties amenable for
partition. In the said O.S.No.37/2000, defendant Nos.1 and 2
have not included the properties R.S.No.1/1A+1B and
R.S.No.180 and the judgment and decree passed in
O.S.No.37/2000 has attained finality, as it was not challenged
by either of the parties. Thus, the plaintiff has filed the instant
suit for partition and included the suit schedule properties and
so far as the properties in R.S.No.1/1A+1B and R.S.No.180
were all impliedly fallen to the share of Mallappa as children of
Mallappa have obtained share in these two properties. When
the partition took place in the year 1945, these two properties
R.S.No.1/1A+1B and R.S.No.180 might have not been included
in the said partition of the year 1945 but later on
R.S.No.1/1A+1B fell to the share of Shivappa S/o Mallappa and
R.S.No.180 fell to the share of Shankarappa S/o Mallappa.
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C/W RSA.CROB No. 100005 of 2018
Therefore later on Hanumanthappa and Mallappa have
partitioned the properties and obtained their respective shares.
The sons of Mallappa namely Shivappa and Shankarappa have
obtained the above said two properties. Hence, there was
implied partition and it was acted upon. Hence, these
properties have fallen to the share of branch of Mallappa.
Therefore, plaintiff has filed suit excluding those properties as
those properties are not concerned to the branch of
Hanumanthappa. Hence, it is rightly considered by both the
Courts below that just because these two properties were not
included in the partition in the year 1945, that does not mean
they are continued to be joint family properties of both
Hanumanthappa and Mallappa. Later the sons of Mallappa
namely Shivappa and Shankarappa have got these two
properties and revenue entries were affected in their respective
names and it was not questioned by the plaintiff and the
defendants even though in O.S.No.37/2000 these two
properties are not included. Hence, there is no merit in the
contentions taken by defendant Nos.1 and 2. Hence, there is no
merit found in the submission made by the learned counsel for
the cross objector and defendant Nos.1 and 2 that all the suit
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C/W RSA.CROB No. 100005 of 2018
properties are not included. Accordingly, I answer substantial
question of law No.2 in the affirmative.
16. Coming to the question of granting of allotment of
share is concerned, the First Appellate Court has relied on the
overruled judgment of the Hon'ble Supreme Court in the case
of Prakash (supra). The First Appellate Court has committed
error by applying the Theory of Notional Partition, but that is
taken away by virtue of Section 6 of the Hindu Succession Act
(amendment made to Section 6 of the Hindu Succession Act)
and thus recognized daughters are also coparceners on this
basis. The Hon'ble Supreme Court in the judgment of Vineeta
Sharma's case (supra) has recognized the daughters also
being the coparceners are entitled for equal rights as that of
sons. Thus, the Trial Court is correct in granting 1/4th share to
the plaintiff but the First Appellant Court has committed error in
this regard. Therefore, the judgment and decree passed by the
First Appellate Court is liable to be set aside by retaining the
judgment and decree passed by the Trial Court. Accordingly, I
answer the substantial question of law No.1 in the negative.
Hence, I proceed to pass the following:
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C/W RSA.CROB No. 100005 of 2018
ORDER
i. RSA No.100809/2016 filed by the plaintiff
is hereby allowed.
ii. RSA Crob.No.100005/2015 in RSA
No.100809/2016 filed by the cross
objector is dismissed.
iii. The judgment and decree in R.A.
No.40/2010 dated 08.07.2016 passed by
the Senior Civil Judge and JMFC, Hangal at
Hangal is hereby set aside. The judgment
and decree passed in O.S. No.250/2008
dated 05.08.2010 passed by the Civil
Judge and JMFC, at Hangal is hereby
restored and confirmed.
iv. Draw decree accordingly as per the
judgment and decree passed by the Trial
Court.
v. No orders to costs.
Sd/-
JUDGE
SRA: para 1 to 12
KGK: para 13 to end
