Karnataka High Court

Smt K A Anuradha vs Sri K A Aruna on 5 March, 2024

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                                                            NC: 2024:KHC:9266
                                                         RSA No. 1070 of 2014




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 5TH DAY OF MARCH, 2024

                                            BEFORE

                          THE HON'BLE MR JUSTICE ASHOK S.KINAGI

                   REGULAR SECOND APPEAL NO. 1070 OF 2014 (PAR)

                   BETWEEN:

                   SMT K A ANURADHA
                   W/O NAGARAJA
                   AGED ABOUT 35 YEARS
                   R/AT GIRIJAMBA STUDIO
                   GUJJAR COMPLEX, THUDUR
                   THIRTHAHALLI TALUK
                   SHIVAMOGGA DISTRICT - 577 431.
                                                                 ...APPELLANT
                   (BY SRI. RAVI L VAIDYA.,ADVOCATE)

                   AND:

                   1.    SRI K A ARUNA
                         S/O K A ARAVINDA
Digitally signed         AGED ABOUT 29 YEARS
by R DEEPA               R/AT SEEKE VILLAGE
Location: HIGH           THIRTHAHALLI TALUK
COURT OF                 SHIVAMOGGA DISTRICT - 577 431
KARNATAKA
                   2.    SRI K A ARAVINDA
                         S/O ASHWATHAIAH GOWDA
                         AGED ABOUT 61 YEARS
                         R/AT SEEKE VILLAGE
                         THIRTHAHALLI TALUK
                         SHIVAMOGGA DISTRICT
                                                              ...RESPONDENTS
                   (BY SRI. VARADARAJ R HAVALDAR, ADVOCATE FOR R2
                       SRI. M.V. PARAMESHWARAPPA, ADVOCATE FOR R1)
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                                               NC: 2024:KHC:9266
                                            RSA No. 1070 of 2014




     THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 17.01.2013 PASSED IN
R.A.NO.68/2011 ON THE FILE OF THE II ADDL. SR. CIVIL
JUDGE, SHIMOGA, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 03.08.2011
PASSED IN O.S.NO.233/2008 ON THE FILE OF ADDL. CIVIL
JUDGE AND JMFC, THIRTHAHALLI.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

This second appeal is filed by the appellant

challenging the judgment and decree dated 17.01.2013,

passed in R.A.No.68/2011 by the II Addl. Sr. Civil Judge at

Shimoga, modifying the judgment passed by the trial

Court dated 03.08.2011, passed in O.S.No.233/2008 by

the Addl. Civil Judge & JMFC, Thirthahalli.

2. For the sake of convenience, parties are referred

to as per their ranking before the trial Court. The

appellant is defendant No.2 and respondents 1 and 2 are

plaintiff and defendant No.1, respectively.

3. The brief facts leading rise to filing of this appeal

are as under:

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Plaintiff filed a suit for partition and separate

possession against the defendants. It is the case of the

plaintiff, that plaintiff is the son and defendant No.2 is the

daughter of defendant No.1. The suit schedule properties

are the ancestral properties of plaintiff and defendants.

They are jointly cultivating the suit schedule properties.

The suit schedule properties had fallen to the share of

defendant No.1 in the family partition dated 10.04.1980.

Since then, the plaintiff and defendants are in possession,

cultivation and enjoyment of the same. It is contended

that defendant No.1 is not taking care of the family

members and also not taking any steps to make any

development in the suit schedule properties. He was

spending money for himself out of the earnings of the

family properties. Hence the plaintiff demanded for

partition and separate possession, but the defendant No.1

refused to effect partition. Hence cause of action arose for

the plaintiff to file the suit for partition and separate

possession.

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4. Defendant No.1 filed written statement admitting

the relationship of plaintiff and defendants and admitted

that the suit schedule properties are the ancestral

properties of plaintiff and defendant No.1 and that they

are in cultivation and enjoyment of the said properties. He

also admitted that the plaintiff has got share in the suit

schedule properties and admitted that he has acquired the

suit properties under the family partition dated

10.04.1980, and he has no objection for grant of share to

the plaintiff and it is also further contended that defendant

No.1 gave 180 grams of gold to defendant No.2 out of love

and affection and also gave money to her. He also

contended that he has borrowed loan of Rs.4,00,000/-

from Bank and Societies and invested it for the

improvement of land and other family necessities. Hence

he has no objection to allot the share to the plaintiff in suit

properties by considering the bank loan of Rs.4,00,000/-

and prayed to decree the suit by allotting share to the

plaintiff in accordance with law.

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5. Though defendant No.2 appeared through

counsel, did not chose to file written statement.

6. The Trial Court, on the basis of the above said

pleadings, framed the following issues:

1) Whether plaintiff proves that suit schedule properties are ancestral properties of plaintiff and defendants?

2) Whether plaintiff proves that suit properties are in joint possession and enjoyment of the plaintiff and defendants?

3) Whether plaintiff proves that, they have constituted Hindu Joint family?

4) Whether the 1st defendant proves that 2nd defendant is not entitle for share in the joint family as contended in para-5 of the written statement?

5) Whether 1st defendant proves that he has borrowed loan of Rs.4,00,000/- from societies and banks for improvement of the lands?

6) Whether plaintiff has entitled for the relief of 1/3rd share in suit schedule properties?

7) What order?

7. In order to prove the case of the plaintiff, the

plaintiff examined himself as PW-1 and got marked 5

documents as Exs.P1 to P5. In rebuttal, defendant No.1

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examined himself as DW-1 and got marked 6 documents

as Exs.D1 to D6. The trial Court after assessing the oral

and documentary evidence of the parties, answered issue

Nos.1 to 3 and 6 in affirmative; issue Nos.4 and 5 in

negative; issue No.7 as per the final order. The suit of the

plaintiff was decreed. It is ordered that the plaintiff is

entitled for 1/3rd share in the suit schedule properties and

that defendants 1 and 2 are also entitled for 1/3rd share

each in the suit schedule properties.

8. Defendant No.1 aggrieved by the judgment and

decree passed in the above said suit, filed an appeal in

R.A.No.68/2011. The First Appellate Court, after hearing

the parties, has framed the following points for

consideration:

1) Whether the finding given on issue Nos.4 and 5 is against to the admissions, evidence available and contrary to the law and therefore it is liable to be set aside?

2) What order?

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9. The First Appellate Court, on re-assessing the oral

and documentary evidence, answered point No.1 in

affirmative and point No.2 as per the final order and

consequently allowed the appeal filed by defendant No.1

and set aside the finding given on issues No.4 and 5 in

O.S.No.233/2008. It is ordered and declared that the

plaintiff and defendants 1 & 2 are entitled for 1/3rd share

each in all the suit schedule properties and also they are

liable to take responsibility of discharging the loans to the

extent of their shares. It is also held that 180 grams of

gold shall be taken for consideration in the share to be

allotted in favour of defendant No.2 and the same is to be

deducted out of the share of defendant No.2 during the

course of final decree proceedings. The remaining portion

of the judgment is kept intact. Defendant No.2, aggrieved

by the judgment and decree passed by the First Appellate

Court, has filed this second appeal.

10. Heard learned counsel for defendant No.2.

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11. Learned counsel for defendant No.2 submits that

the First Appellate Court committed an error in passing the

impugned judgment wherein 180 grams of golden articles

shall be taken for consideration in the share to be allotted

in favour of defendant No.2 and same is to be deducted

out of the share of defendant No.2 during the course of

final decree proceedings. Hence, to the said extent,

defendant No.2 has filed this appeal.

12. Perused the records and considered the

submissions of learned counsel for defendant No.2.

13. It is not in dispute that defendant No.1 is the

father of plaintiff and defendant No.2. It is also not in

dispute that the suit schedule properties are acquired by

defendant No.1 under partition dated 10.04.1980, and the

suit schedule properties are the ancestral properties of

plaintiff and defendants. The plaintiff and defendants are

the members of Hindu undivided family. Further there is

no partition effected between the plaintiff and defendants.

Plaintiff in order to substantiate his case, examined

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himself as PW-1 and he has reiterated the plaint

averments in his examination-in-chief and in order to

prove that the suit schedule properties are the ancestral

properties of plaintiff and defendants, plaintiff has

produced documents. Ex.P1 is the genealogical tree;

Ex.P2 is the mutation register; Ex.P3 to P5 are the RTC

extracts.

14. In rebuttal, defendant No.1 was examined

himself as DW-1 and he has reiterated the written

statement averments in his examination-in-chief. He has

admitted that the suit schedule properties are the

ancestral properties of plaintiff and defendants and he had

acquired the said properties under partition dated

10.04.1980 and he has also deposed that he has no

objection to grant share to the plaintiff in accordance with

law and he has also deposed that he had obtained loan

from bank for the improvement of suit properties and in

order to establish that he had obtained loan from Bank, he

has produced documents. Ex.D1 is the loan details

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obtained from Canara Bank; Ex.D2 is the certificate of loan

issued by Malur VSSN Co-operative Bank; Ex.D3 is the

letter from Krishnaprasad Adike Mandi, Shimoga regarding

loan due amount; Ex.D4 to D6 are the notices issued by

Canara Bank which discloses that defendant No.1 is a

defaulter and he has not repaid the loan amount.

15. From the perusal of the pleadings and evidence

of parties, it is clear that the suit schedule properties are

the ancestral properties of plaintiff and defendants. The

trial Court was justified in decreeing the suit of the plaintiff

and awarding 1/3rd share to the plaintiff and 1/3rd share

each to defendants 1 and 2 in the suit schedule properties.

Though defendant No.2 has entered appearance through

counsel, did not chose to file written statement and also

did not enter the witness box. Defendant No.2 aggrieved

by the judgment and preliminary decree passed by the

trial Court, has filed the appeal before the First Appellate

Court. The First Appellate Court on re-appreciation of the

material available on record, set aside the findings on

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issue Nos.4 and 5 wherein the trial Court had held that

whatever properties given to defendant No.2 is her

'stridhana' property.

16. It is necessary to refer to Section 6 of the Hindu

Succession Act, 1956, which reads as under:

"6. Devolution of interest in coparcenary property.―(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,―

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenery property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenery property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub- section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.