Karnataka High Court
Sharnamma W/O Kashappa And Ors vs Gundamma W/O Siddappa And Ors on 28 May, 2024
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RFA No.200032 of 2015
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF MAY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO.200032 OF 2015 (PAR/POS)
BETWEEN:
1. SHARNAMMA
W/O KASHAPPA,
(D/O YELLAPA HARIJAN)
AGE: 83 YEARS,
OCC : HOUSEHOLD,
R/O : KALGURTHI,
TQ : CHITTAPUR,
DIST : KALBURGI.
2. BASAVARAJ
Digitally signed by S/O YELLAPPA,
BASALINGAPPA AGE:58 YEARS,
SHIVARAJ
DHUTTARGAON OCC : AGRI.,
Location: High
Court Of Karnataka R/O : VILLAGE SHANKARWADI,
TQ : CHITTAPUR,
DIST : KALBURGI.
3. PARAMESHWAR
S/O SAIBANNA,
AGE: 49 YEARS,
OCC : AGRI.,
R/O : PALA VILLAGE,
TQ & DIST : KALBURGI.
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RFA No.200032 of 2015
4. DEVENDRA
S/O SAIBANNA,
AGE : 44 YEARS,
OCC : AGRI.,
R/O : PALA VILLAGE,
TQ & DIST : KALBURGI.
5. SHIVAMMMA
W/O SAIBANNA,
(D/O YELLAPPA HARIJAN)
AGE: 63 YEARS,
OCC : AGRI.,
R/O : KALGURTHI
TQ & DIST : KALABURGI.
...APPELLANTS
(BY SRI S.B. HANGARKI, ADVOCATE)
AND:
1. GUNDAMMA
W/O SIDDAPPA,
AGE: 58 YEARS,
OCC : AGRI.,
R/O : MELKUNDI,
TQ : CHITTAPUR,
DIST : KALBURGI - 585 213.
2. SHANTAMMA
W/O VITHAL (D/O AMBANNA)
AGE: 53 YEARS,
OCC : AGRI.,
R/O : WACHA,
TQ : CHITTAPUR,
DIST : KALBURGI - 585 211.
3. SANJEEV KUMAR
S/O VITHAL,
AGE: 33 YEARS,
OCC: PRIVATE JOB,
R/O: WACHA,
TQ: CHITTAPUR,
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RFA No.200032 of 2015
DIST: KALBURGI - 585 211.
4. YOSUF KHAN
S/O JAN MOHAMMED KHAN,
AGE: 45 YEARS,
OCC : AGRI.,
R/O MAIN ROAD, MALKHED,
TQ: SEDAM,
DIST: KALBURGI - 585 317.
5. SRIMANTH
S/O SAIBANNA,
AGE: 38 YEARS,
OCC : AGRI.,
R/O: PALA VILLAGE,
TQ AND DIST KALBURGI - 585 228.
...RESPONDENTS
(BY SRI SACHIN M.MAHAJAN, ADVOCATE FOR R1 TO R4
R5 IS SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CIVIL PROCEDURE CODE, PRAYING TO CALL FOR
RECORDS, ALLOW THIS APPEAL AND SET-ASIDE THE
IMPUGNED JUDGMENT AND DECREE DATED 25.02.2015
PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE,
CHITTAPUR IN O.S.NO.99/2012, 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:
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RFA No.200032 of 2015
JUDGMENT
This Regular First Appeal is filed by the appellants,
challenging the judgment and preliminary decree dated
25.02.2015 in O.S.No.99/2012 passed by the Senior Civil
Judge, Chittapur.
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial court.
3. The appellants are the plaintiffs and the
defendants are the respondents.
4. Brief facts of the plaint averments are that, one
Sri Yellappa S/o Sabu was the original propositus.
Smt. Sabamma is the wife of said Yellappa. Yellappa had
six children namely, plaintiff No.1, Ratnamma,
Channamma, Shivamma (plaintiff No.6), Kashamma and
Gundamma (defendant No.1). It is further case of the
plaintiffs that, the suit schedule properties were owned by
the original propositus Yellappa, who expired during the
year 1972-73 leaving behind his wife Smt. Sabamma and
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six daughters and further Ratnamma, Kashamma,
Channamma died leaving behind their respective legal
heirs.
It is their further case that, the suit schedule
properties are jointly inherited by six daughters of late
Yellappa and they are entitled for 1/6th share in the suit
schedule properties as per the Hindu Succession Act, 1956
and therefore the plaintiffs have demanded for partition
and separate possession in the suit schedule properties.
But the defendants refused to effect the partition.
Further, it is the case of the plaintiffs that, during the
pendency of the suit by violating the order of temporary
injunction, defendant No.3 sold one of the suit lands in
favour of defendant No.4 under the registered sale deed
dated 17.10.2012 and the said sale deed is not binding on
the plaintiffs. The plaintiffs requested the defendants to
effect the partition, but the defendants refused to effect
the partition. Hence, cause of action arises for the
plaintiffs to file a suit for partition and separate possession
and also declaration to declare that the registered sale
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deed dated 17.10.2012 is null and void and not binding on
the shares of the plaintiffs.
5. Pursuant to suit summons, defendant Nos.1 to
4 appeared and filed their common written statement
denying the averments made in the plaint in toto. It is
admitted that Yellappa was the owner of the suit schedule
properties and he died in the year 1972-73 leaving behind
his wife and six daughters and further contended that
Yellappa was the absolute owner of land in Sy.No.44/3,
measuring 04 acres 11 guntas and land in Sy.No.33/12,
measuring 08 acres both situated at Wacha village and
Yellappa being pleased with the services rendered by
Kashamma and out of love and affection, he executed a
registered gift deed in favour of Kashamma bequeathing
the suit schedule properties and Kashamma accepted the
gift deed. Possession of the suit schedule properties were
delivered by Yellappa in favour of Kashamma. By virtue of
the registered gift deed dated 03.06.1968, Kashamma
became the absolute owner of the suit schedule properties
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and the name of Kashamma was entered in the Record of
Rights. Hence, it is contended that, the plaintiffs have no
right to claim share in the suit schedule properties, as the
suit schedule properties were owned and possessed by
late Yellappa, who was the absolute owner and in the said
capacity he had executed a registered gift deed in favour
of Kashamma and said gift deed was not challenged by the
plaintiffs. Hence, on these grounds prayed 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 the Hindu undivided
ancestral joint family properties of themselves
and defendant Nos.1 to 3?
ii) Whether the plaintiffs further prove that,
they are in joint possession and enjoyment over
the suit schedule properties along with the
defendant Nos.1 to 3?
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iii) Whether the plaintiffs further prove that,
the sale deed being Document No.5395/2012-
13 dated 02-10-2012 executed by the
defendant No.3 in favour of the defendant No.4
is not binding on them?
iv) Whether the defendant Nos.1 to 4 prove
that, the main ancestor late Yallappa has
executed a registered gift deed in favour of his
daughter deceased Kashamma dated 03-06-
1968 in respect of suit schedule properties?
v) Whether the defendant No.4 proves that,
he is the bonafide purchaser of the land an
extent of 08 Acres in suit Sy.No.33/12 under a
registered sale deed bearing Document
No.5395/2012-13 dated 02-10-2012?
vi) Whether the plaintiffs are entitled their
respective shares? If entitled, what is their
extent?
vii) What order or decree?"
7. The plaintiffs, in order to prove their case got
examined plaintiff No.2 as P.W.1 and also examined two
witnesses as P.Ws.2 and 3 and got marked 30 documents
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at Exs.P.1 to P.30. On the other hand, defendant No.3
was examined as D.W.1 and defendant No.4 was
examined as D.W.2 and examined one witness as D.W.3
and got marked 36 documents at Ex.D.1 to Ex.D.36.
8. After hearing the learned counsel for the parties
and on assessment of the oral and documentary evidence,
trial court answered issue Nos.1 to 3 and 6 in the
Negative. Issue Nos.4 and 5 are answered in the
Affirmative and issue No.7 is answered as per final order
that is resulting in dismissal of the suit vide its judgment
dated 25.02.2015. The plaintiffs aggrieved by the
judgment and preliminary decree passed in the aforesaid
suit, filed the present appeal.
9. Heard the learned counsel for the plaintiffs and
also the learned counsel for defendants.
10. Learned counsel for the plaintiffs submit that,
though Yeallappa had executed a registered gift deed in
favour of Kashamma, the said gift deed was not acted and
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on the strength of the said gift deed, the name of
Kashamma was not entered in the revenue records. He
also submits that Yellappa was the absolute owner of the
suit schedule properties. He also submits that after the
execution of the registered gift deed, Yellappa himself
mortgaged the suit schedule properties, hence this itself
go to show that the parties have not acted upon the
registered gift deed and thus the trial court committed an
error in not considering the material documents i.e.,
Ex.D-7, Ex.D-12 and Ex.D-13. Hence, the judgment and
preliminary decree passed by the trial court is arbitrary
and erroneous. Hence, on these grounds he prays to allow
the appeal.
11. Per contra, learned counsel for the defendants
submits that the plaintiffs have not proved the nature of
the suit schedule properties that whether it is an ancestral
or absolute property of late Yellappa and the said fact has
not been pleaded in the plaint. He further submitted that
Yellappa was the absolute owner of the suit schedule
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properties and the said fact was admitted by the plaintiffs
in the plaint regarding ownership of Yellappa and
Kashamma was taking care of Yellappa and out of love and
affection he had gifted the suit schedule properties in
favour of Kashamma and on the strength of the registered
gift deed, Kashamma became the absolute owner of the
suit schedule properties. Hence, he submits that the
plaintiffs have failed to establish the very nature of suit
schedule properties and the suit of the plaintiffs is not
maintainable unless and until the plaintiffs establishes the
nature of the suit schedule properties.
12. The learned counsel further submits that the
plaintiffs have not challenged the registered gift deed
executed by Yellappa in favour of Kashamma and he also
submits that the gift deed was executed in the year 1968
and the trial court was justified in drawing presumption
under Section 90 of the Indian Evidence Act that the said
document is of 30 years old document and hence the
judgment and preliminary decree passed by the trial court
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is just and proper and does not call for any interference.
Hence, 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. To decide the appeal, the following points that
arise for our consideration.
1) Whether the plaintiffs prove that the suit
schedule properties are the joint/ancestral
properties of themselves and the defendants
no.1 to 3?
2) Whether the defendant Nos.1 to 4 prove that
Yellappa had executed a registered gift deed
dated 03.06.1968 in favour of his daughter
deceased Kashamma i.e., mother of defendant
Nos.2 and 3 in respect of the suit schedule
properties?
3) Whether defendant No.4 proves that he is the
bonafide purchaser of the land to an extent of 8
acres of land in Sy.No.33/12 under a registered
sale deed dated 17.10.2012?
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4) Whether the plaintiffs prove that the judgment
and preliminary decree passed by the trial court
is perverse and arbitrary?
5) What order or decree?
15. Point No.1: It is the case of the plaintiffs that
Yellappa was the absolute owner of the suit schedule
properties and he died in the year 1972-73 leaving behind
his six daughters and wife and the plaintiffs and the
defendant Nos.1 to 3 are the members of Hindu undivided
joint family and there is no partition effected between
themselves. After the demise of Yellappa, plaintiffs and
defendants have succeeded to the suit schedule properties
by way of succession. The plaintiffs have demanded for a
partition and separate possession of their share but the
defendant Nos.1 to 3 refused to effect a partition.
filed written statement contending that Yellappa was the
absolute owner of suit schedule properties and he had
executed a registered gift deed in favour of Kashamma
i.e., mother of defendant Nos.2 and 3 in respect of suit
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schedule properties and said Kashamma accepted the said
gift and Yellappa delivered the possession of the suit
schedule properties in her favour. Hence, the mother of
defendant Nos.2 and 3 became absolute owner of suit
schedule properties.
17. Plaintiffs in order to establish their case, got
examined plaintiff No.2 as P.W.1, who has reiterated the
entire plaint averments in the examination-in-chief and in
support of their contention got marked 30 documents. Of
them, Ex.P.1 is the certified copy of Mutation Register, on
perusal of which, discloses that the suit schedule
properties were mutated in the name of Kashamma.
Ex.P.2 is the RTC extract of land bearing Sy.No.44/3 for
the year 1993-94, which discloses that the said land was
stood in the name of Yellappa. Ex.P.3 is the RTC extract
in respect of the same Sy.No.44/3 wherein in column
No.9, the name of Kashamma was entered in the RTC for
the year 1998-99. Ex.P.4 to Ex.P.7 are the RTC extracts
of land bearing Sy.No.44/3 from the year 2001-02 to
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2004-05, respectively, which stand in the name of
Kashamma i.e., the mother of defendant Nos.2 and 3.
After demise of Kashamma, the name of defendant No.3
was entered in the revenue records. Ex.P.8 is the RTC
extract in respect of the land bearing Sy.No.44/3 for the
year 2005-06. Exs.P.9 to 13 are the RTC extracts in
respect of land Sy.No.44/3 which stands in the name of
Sanjeev Kumar i.e., defendant No.3 as per mutation dated
18.07.2005 vide M.R.No.28/2004-05. Ex.P.14 is the RTC
extract in respect of land bearing Sy.No.33/12 which
stands in the name of Yellappa for the year 1998-99.
Ex.P.15 is the RTC extract in respect of land bearing
Sy.No.33/12 which stands in the name of Kashamma.
Exs.P.15 to 19 are the RTC extracts of land bearing
Sy.No.33/12 which stands in the name of Kashamma.
Exs.P.20 to 25 are the RTC extract in respect of land
bearing Sy.No.33/2 which stands in the name of
defendant No.3. Ex.P.26 is the death certificate of
Kashamma which shows that she died on 10.09.2010.
Ex.P.27 is the copy of death certificate of Chennamma who
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died on 21.05.2005. Ex.P.28 is the Court Notice issued to
the defendant No.3 intimating regarding filing of the
present suit by plaintiffs against the defendants and fixing
the date of appearance as 20.12.2012. Exs.P.29 and P.30
are the Kashara Panies of suit lands.
18. From the perusal of the examination-in-chief of
P.W.1 he has nowhere stated in the examination-in-chief
regarding the nature of suit schedule properties. Further
from the perusal of the records, Ex.P.2 and P.14 which
disclose that the suit schedule properties stood in the
name of Yellappa. The plaintiffs have not produced any
records to show that the suit schedule properties were
standing in the name of their ancestor. Admittedly,
Yellappa was the absolute owner of the suit schedule
properties and he had executed the registered gift deed in
favour of Kashamma i.e,. mother of defendant Nos.2 and
3. But, the plaintiffs have not challenged the registered
gift deed executed by Yellappa in favour of Kashamma.
Even otherwise, the plaintiffs have failed to establish that
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the suit schedule properties are the joint/ancestral
properties of plaintiffs and defendants. Further, the
plaintiffs in order to establish their case examined two
witnesses who are P.Ws.2 and 3 who have deposed in the
same line of P.W.1 and deposed that the plaintiffs and
defendant Nos.1 to 3 are the members of Hindu undivided
joint family and there is no partition effected between the
plaintiffs and said defendants and contended that the
plaintiffs and defendant Nos.1 to 3 are jointly cultivating
the suit schedule property bearing Sy.No.33/12.
19. From the perusal of the evidence of P.Ws.2 and
3 and documents produced by the plaintiffs marked at
Exs.P.1 to 30, it is clear that the plaintiffs neither pleaded
in the plaint nor produced any records to establish that the
suit schedule properties are the ancestral/joint family
properties of the plaintiffs and the defendants. Therefore,
in the light of the above discussion, we hold that the
plaintiffs have failed to prove that the suit schedule
properties are the joint family properties of themselves
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and defendant Nos.1 to 3 and accordingly we answer point
No.1 in the Negative.
20. Point No.2: It is the defence of the defendants
that, Yellappa was the absolute owner of the suit schedule
properties and during his life time, Kashamma was taking
care of Yellappa and out of love and affection he had gifted
the suit schedule properties to his daughter Kashamma by
executing a registered gift deed dated 03.06.1968 and
said Kashamma accepted the gift and Yellappa delivered
the possession of the suit schedule properties in favour of
Kashamma. Further in order to establish that defendant
No.3 was in possession of the suit schedule properties as
on the date of the institution of the suit, the defendants
produced a copy of the RTC extract which discloses that
defendant No.3 was in possession of the suit schedule
properties. Further, the gift deed dated 03.06.1968 is a
registered document and it is 30 years old document and
the trial court was justified in drawing presumption under
Section 90 of the Indian Evidence Act and holding that
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defendant Nos.1 to 4 have proved the execution of
registered gift deed by Yellappa in favour of Kashamma
i.e., mother of defendant Nos.2 and 3. Further the name
of Kashamma was entered in the revenue records and the
said documents are marked as Ex.P3 to Ex.P.7 and
Ex.P.15 to P.19, which discloses the name of the
Kashamma, as she is the owner of the suit schedule
properties. After the demise of Kashamma, the said
properties were mutated in the name of defendant No.3.
21. The defendants in order to prove the defence in
support of their oral evidence has also produced Ex.D1,
which is the original registered gift deed executed by
Yellappa in favour of Kashamma. The said document is in
Urdu language and its translation copy is marked at
Ex.D1(a). The defendant No.3 also executed an
agreement of sale in favour of defendant No.4 and later on
during the pednency of the suit executed the registered
sale deed in favour of defendant No.4. The said sale deed
is marked as Ex.D.4. The defendants have also produced
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Form No.15, which is marked as Ex.D.3 which discloses
that defendant No.3 executed the agreement of sale in
favour of defendant No.4 and copy of the agreement of
sale is enclosed along with Ex.D.3. Ex.D5 is the Extract of
Karnataka Revisional Settlement Akar Band. Ex.D.6 is the
Tonch Map. Ex.D.7 is the certified copy of the mutation
extract wherein the name of the Kashamma was entered
in the revenue records in respect of suit schedule
properties. Ex.D8 and Ex.D9 are the certified copy of the
mutation extracts. Exs.D.10 to 24 are the RTC extracts of
land Sy.Nos.33/12 and 44/3. Ex.D25 and Ex.D.36 are the
pahanies of land Sy.No.33/12.
22. In order to disprove the case of the defendants
and discard the oral and documentary evidence, nothing
has been elicited from the mouth of witnesses examined
on behalf of defendants during the course of their cross-
examination by the plaintiffs. Even the plaintiffs have also
not challenged the alleged gift deed executed by Yellappa
in favour of Kashamma and also revenue records changed
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in the name of Kashamma and defendant No.3. On the
other hand, the defendant Nos.1 to 4 proved that late
Yellappa executed a registered gift deed in favour of
Kashamma and after the demise of Kashamma, the
properties were transferred in the name of defendant
No.3. The defendant No.3 sold the suit schedule properties
in the name of defendant No.4. Hence, in the light of facts
and circumstances of the case and in view of above
discussion, we answer the point No.2 in the Affirmative.
23. Point No.3: As discussed supra, we have
already answered point Nos.1 and 2 holding that plaintiffs
have failed to establish that the suit schedule properties
are the joint family properties/ancestral properties of the
plaintiffs and defendant Nos.1 to 3 and also held that the
defendants have proved that Yellappa gifted the suit
schedule properties in favour of Kashamma and after the
demise of Kashamma the said properties were transferred
in the name of defendant No.3 and defendant No.3 had
sold the said properties in favour of defendant No.4 under
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the registered sale deed as per Ex.D4. Further, defendant
No.4 got examined himself as D.W.2 and in his evidence
he has deposed that he is the bonafide purchaser for value
and he is not aware of the pendency of the suit. In view
of the above discussion, as the suit schedule properties
are not the joint family properties and defendant No.4
after verifying the documents i.e., copy of the RTC which
stood in the name of Yellappa and registered gift deed
executed by Yellappa in favour of Kashamma and as on
the date of purchasing of suit schedule properties, the
properties stood in the name of defendant No.3. The
defendant No.4 after verifying the records as per Section
55 of the Transfer of Property Act had purchased the suit
properties. Hence, defendant No.4 is the bonafide
purchaser for value and in view of the above discussion,
we answer point No.3 in the Affirmative.
24. Point No.4: The trial court considering the oral
and documentary evidence has rightly dismissed the suit
of the plaintiffs and this court concur the findings of the
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trial court. Accordingly, point No.4 is answered in the
Negative.
25. Point No.5: In view of the above discussions,
we do not find any error in the impugned judgment.
Accordingly, we decline to interfere with the well reasoned
judgment of the trial court. Hence, we proceed to pass
the following:
ORDER
i. The Regular First Appeal preferred by the
plaintiffs is hereby dismissed.
ii. The judgment and preliminary decree
dated 25.02.2015 passed by the trial
court in O.S.No.99/2012 is hereby
confirmed.
iii. No order as to the costs.
Sd/-
JUDGE
Sd/-
JUDGE
BL
Ct:VK
