Karnataka High Court
Kantamma W/O Bhimaraya Google And Ors vs Gurulingamma W/O Shivaraja Patil on 31 May, 2024
-1-
NC: 2024:KHC-K:3478-DB
RFA No.200056 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 31ST 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.200056 OF 2017 (PAR/POS)
BETWEEN:
1. KANTAMMA
W/O BHIMARAYA GOOGLE,
AGE: 68 YEARS,
OCC: HOUSEHOLD,
R/O: NAGNOOR,
TQ: SHORAPUR.
2. VISHWANATHREDDY
S/O BHIMARAYA GOOGLE,
AGE: 43 YEARS,
OCC: AGRICULTURE,
Digitally signed by R/O: NAGNOOR,
BASALINGAPPA TQ: SHORAPUR,
SHIVARAJ
DHUTTARGAON DIST : YADGIR.
Location: High
Court Of Karnataka
3. HALLERAYA
S/O BHIMARAYA GOOGLE,
AGE: 40 YEARS,
OCC: AGRICULTURE,
R/O: NAGNOOR,
TQ: SHORAPUR,
DIST : YADGIR.
...APPELLANTS
(BY SMT. REKHA M. PATIL FOR SRI G.G.CHAGASHETTI,
SRI. I.R.BIRADAR AND SRI. L.T.PUJARI, ADVOCATES)
-2-
NC: 2024:KHC-K:3478-DB
RFA No.200056 of 2017
AND:
GURULINGAMMA
W/O SHIVARAJA PATIL,
AGE: 53 YEARS,
OCC: HOUSEHOLD,
R/O: NAGANOOR,
TQ: SHORAPUR,
PRESENTLY, R/O ANCHESUGUR,
TQ: DEODURGA,
DIST: RAICHUR - 584 101.
...RESPONDENT
(BY SRI K.D.BANTANUR, ADVOCATE FOR C/RESPONDENT)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CIVIL PROCEDURE CODE, PRAYING TO CALL FOR THE
RECORDS PERTAINS TO THE O.S.NO.43/2016 ON THE FILE OF
THE SENIOR CIVIL JUDGE AT SHORAPUR, PERUSE THE SAME
AND SET-ASIDE THE JUDGMENT AND DECREE DATED
07.04.2017, INSOFAR AS AWARDING 1/3RD SHARE TO THE
PLAINTIFF IN THE SUIT SCHEDULE PROPERTIES AT ITEM NO.1,
2, 3, 5, 6, 7, 8 & 9 BY DISMISSING THE SUIT, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS REGULAR FIRST APPEAL COMING ON FOR HEARING
THIS DAY, ASHOK S. KINAGI J., DELIVERED THE
FOLLOWING:
JUDGMENT
This Regular First Appeal is filed by the
appellants/defendants challenging the judgment and
NC: 2024:KHC-K:3478-DB
preliminary decree dated 07.04.2017 in O.S.No.43/2016
passed by the Senior Civil Judge, Shorapur.
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial court. The
appellants are the defendants and the respondent is the
plaintiff.
3. Brief facts of the plaint averments:
That, one Bhimaraya Google was the original
propositor. He had two wives namely, Mallamma (first
wife) and Kantamma (second wife). Plaintiff is the
daughter of Mallamma i.e., first wife of Bhimaraya.
Defendant Nos.2 and 3 are the children of the Kantamma
i.e., defendant No.1 and Bhimaraya. The suit schedule
properties are the ancestral and joint family properties of
the plaintiff and defendants. Defendant Nos.1 to 3 got
entered their names in the revenue records in respect of
item Nos.1 to 6 and 10 of the suit schedule properties and
tried to get enter the revenue documents of item Nos.7 to
9 by filing the application before the Tahasildar for which
NC: 2024:KHC-K:3478-DB
the plaintiff objected and the Tahasildar directed both the
parties to resolve their right over the properties.
Therefore, the plaintiff approached the defendant Nos.1 to
3 and requested to effect partition, but the defendants
refused to effect the partition. Hence, cause of action
arises for the plaintiff to file a suit for partition and
separate possession.
4. After service of suit summons, defendant Nos.1
to 3 appeared and filed written statement denying the
relationship of the plaintiff with the deceased Bhimaraya.
It is contended that, there was a prior partition between
the plaintiff and defendants and the plaintiff has taken
money in lieu of her share. It is further contended that,
item No.6 of the suit schedule property is the absolute
property of defendant No.1 as it was purchased by her
under the registered sale deed dated 06.09.1976 and item
Nos.4 and 10 of the suit schedule properties are the
properties given to the defendant No.1 by her parents in
lieu of her maintenance. Thus, she became the absolute
NC: 2024:KHC-K:3478-DB
owner and possessor of the item Nos.4, 6 and 10 of the
suit schedule properties.
5. It is further contended that item Nos.1 to 3, 5,
7 to 9 of the suit schedule properties were orally
partitioned among them and on the event of Basava
Jayanthi day in the year 2001, the plaintiff was given cash
of Rs.5 lakh and 5 tolas of gold towards her share in the
properties at item Nos.1 to 3, 5, 7 to 9 and the said
properties are fallen to the share of the defendants and on
the basis of the oral partition, name of the parties i.e.,
defendant Nos.2 and 3 were entered in the revenue
records. Hence, on the basis of the oral partition,
defendant Nos.2 and 3 became the absolute owner of the
suit schedule properties. 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.
"1) Whether the plaintiff proves that, all the suit
schedule properties are undivided ancestral and
NC: 2024:KHC-K:3478-DB
joint family properties among her and
defendants?
2) Whether the plaintiff proves that, her mother
Mallamma was the only legally wedded wife of
her deceased father?
3) Whether the defendants prove that, the
defendant No.1 married the father of plaintiff
after the death of Mallamma?
4) Whether the defendants prove that, the suit
item Nos.1 to 3, 5, 7 to 9 were orally
partitioned among them and the plaintiff on the
eve of Basava Jayanthi in the year 2001 and in
the said partition the plaintiff was given Rs.5
lakh and five tolas of gold towards her share in
those properties?
5) What order or decree?"
7. The plaintiff, in order to prove her case got
examined herself as P.W.1 and also examined two
witnesses as P.Ws.2 and 3 and got marked 38 documents
as Exs.P.1 to 38. On the other hand, defendant No.2 was
NC: 2024:KHC-K:3478-DB
examined as D.W.1 and examined one witness as D.W.2
and got marked 20 documents as Ex.D.1 to Ex.D.20.
8. After hearing the learned counsel for the parties
and on assessment of the oral and documentary evidence,
trial court answered issue No.1 in the affirmative regarding
properties at item Nos.1 to 3, 5 to 9 and answered in the
negative regarding properties at item Nos.4 and 10.
Further, the trial Court answered issue No.2 in the
affirmative and issue Nos.3 and 4 were answered in the
negative and issue No.5 as per the final order. Thereby the
suit of the plaintiff was decreed. The suit regarding item
Nos.4 and 10 was dismissed and the suit regarding the
properties at item Nos.1 to 3, 5 to 9 was decreed. It is
declared that the plaintiff is entitled for partition and
separate possession to the extent of 1/3rd share in item
Nos.1 to 3, 5 to 9 of the suit schedule properties and
further it is ordered and declared that defendant Nos.2
and 3 are entitled for 1/3rd share each in the item Nos.1 to
3, 5 to 9. The defendants aggrieved by the judgment and
NC: 2024:KHC-K:3478-DB
preliminary decree passed in the aforesaid suit, filed the
present appeal.
9. Heard the learned counsel for the plaintiff and
also the learned counsel for defendants.
10. Learned counsel for the defendants submits
that the defendants restrict their claim only in respect of
the item No.6 of the suit schedule properties. Further, she
submits that item No.6 was purchased by defendant No.1
under the registered sale deed as per Ex.D.1 and thereby
she became the absolute owner of the same in view of
Sub-section (1) of Section 14 of the Hindu Succession Act,
1956. She further submits that the said aspect was not
considered by the trial Court even though the defendants
have taken a defence in the written statement and no
issue was framed on this aspect. Hence, she submits that
the trial Court has committed an error in decreeing the
suit in respect of item No.6 of the suit schedule properties.
Hence, she prays to allow the appeal in part and dismiss
NC: 2024:KHC-K:3478-DB
the suit in respect of item No.6 of the suit schedule
properties.
11. Per contra, learned counsel for the plaintiff
submits that item No.6 of the suit schedule properties was
purchased out of joint family nucleus in the name of
defendant No.1 and hence the said property became the
joint family property of the plaintiff and defendants and
accordingly the trial Court was justified in granting share
in item No.6 of the suit schedule properties. He further
submits that the defendant No.1 has not entered into
witness box to adduce evidence and therefore an adverse
inference has to be drawn as per Section 114(g) of the
Indian Evidence Act. Hence, on these grounds, he prays
to dismiss the appeal.
12. We have perused the entire records and
considered the submissions of the leaned counsel for the
parties.
13. To decide the appeal, the following points that
arise for our consideration are that:
- 10 -
NC: 2024:KHC-K:3478-DB
1) Whether the defendants prove that defendant
No.1 is the absolute owner of item No.6 of the
suit schedule properties by virtue of Sub-
section (1) of Section 14 of the Hindu
Succession Act, 1956?
2) Whether the defendants prove that the
judgment and preliminary decree passed by the
trial Court insofar as item No.6 of the suit
schedule properties is arbitrary and erroneous?
3) What order or decree?
14. Point No.1: It is the case of the plaintiff that
item No.6 of the suit schedule properties was purchased in
the name of defendant No.1 out of the joint family nucleus
and hence, the said suit property is the joint family
property of the plaintiff and defendants and the plaintiff is
entitled for share in item No.6 of the suit schedule
properties. On the other hand, the defendants have taken
a defence that item No.6 of the suit schedule properties
was purchased by defendant No.1 out of her own income
and she became the absolute owner by virtue of Sub-
- 11 -
NC: 2024:KHC-K:3478-DB
section (1) of Section 14 of the Hindu Succession Act,
1956. Insofar as the burden of proving that item No.6 of
the suit schedule properties is the absolute/self acquired
property of defendant No.1, the burden is on the
defendants.
15. The defendants in order to substantiate the
defence, got examined defendant No.2 as D.W.1 and he
has reiterated the written statement averments in the
examination-in-chief and further in support of his defence,
the defendants have produced the registered sale deed
marked as Ex.D.1, which discloses that item No.6 of the
suit schedule properties was purchased by defendant No.1.
We also perused the recital of Ex.D.1, which discloses that
the sale consideration amount was paid by defendant
No.1. There is no recital in Ex.D.1 that the sale
consideration amount was paid out of the joint family
nucleus.
16. The plaintiff has not produced any records to
establish that there was nucleus in the family for having
purchased the item No.6 of the suit schedule properties.
- 12 -
NC: 2024:KHC-K:3478-DB
Further, no evidence has been let in by the plaintiff to
show that what was the income derived from the joint
family properties and what was the amount saved out of
the alleged income from the ancestral properties. Though
the initial burden is on the plaintiff to establish that the
family had a nucleus for purchasing the suit schedule
properties but in the instant case, the plaintiff has failed to
establish that there was nucleus at the time of purchasing
item No.6 of suit schedule properties.
17. As observed above, the defendant No.1 has
purchased the item No.6 under a registered sale deed as
per Ex.D.1. In order to consider the case on hand, it is
necessary to examine Section 14 of the Hindu Succession
Act, 1956 and same is extracted hereunder:
"14. Property of a female Hindu to be her
absolute property. - (1) Any property possessed
by a female Hindu, whether acquired before or after
the commencement of this Act, shall be held by her
as full owner thereof and not as a limited owner.
Explanation.- In this sub-section, "property"
includes both movable and immovable property
acquired by a female Hindu by inheritance of devise,
- 13 -
NC: 2024:KHC-K:3478-DB
or at a partition, or in lieu of maintenance or arrears
of maintenance, or by gift from any person, whether
a relative or not, before, at or after her marriage, or
by her own skill or exertion, or by purchase or by
prescription, or in any other manner whatsoever,
and also any such property held by her as stridhana
immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall
apply to any property acquired by way of gift or
under a will or any other instrument or under a
decree or order of a civil court or under an award
where the terms of the gift, will or other instrument
or the decree, order or award prescribe a restricted
estate in such property."
18. In view of the above provision and applying the
same to the present set of facts and circumstances of the
case more particularly in the light of Ex.D.1, the defendant
No.1 became the absolute owner of item No.6 of the suit
schedule properties. Nonetheless, the trial Court lost sight
this aspect ignoring the contentions asserted by the
defendants in their written statement and the trial Court
committed an error in allotting share to the plaintiff in
item No.6 of the suit schedule properties.
- 14 -
NC: 2024:KHC-K:3478-DB
19. The learned counsel for the plaintiff submits
that defendant No.1 has not entered into witness box in
order to establish that the suit item No.6 was purchased
out of her own earning. But, the defendants have
produced Ex.D.1 in order to establish that item No.6 of the
suit schedule properties was purchased by the defendant
No.1. As there is a recital in Ex.D.1 that the consideration
amount was paid by defendant No.1, any amount of oral
evidence contrary to the terms of instrument is
inadmissible in evidence as per Section 92 of the Indian
Evidence Act. Hence, the production of Ex.D.1 itself is
sufficient to establish that the defendant No.1 has
purchased the said property and she became the absolute
owner of item No.6 of the suit schedule properties.
20. Hence, in view of the above discussions, we
answer point No.1 in the Affirmative.
21. Point No.2: As already we have held that the
defendant No.1 is the absolute owner of the item No.6 of
the suit schedule properties and also that the trial Court
- 15 -
NC: 2024:KHC-K:3478-DB
without examining Section 14 of the Hindu Succession Act,
1956 has proceeded to award a share in item No.6 of the
suit schedule properties and thereby committed an error in
awarding a share in item No.6 of the suit schedule
properties. Thus, the judgment and preliminary decree
passed by the trial Court insofar as item No.6 of the suit
schedule properties deserves to be set aside. In view of
the above discussion, we answer point No.2 partly in the
Affirmative.
22. Point No.3: For the foregoing reasons, we
proceed to pass the following:
ORDER
i. The Regular First Appeal preferred by the
defendants is allowed in part.
ii. The judgment and preliminary decree
passed by the trial court is partly set
aside.
iii. Insofar as item No.6 of the suit schedule
properties, the suit of the plaintiff is
- 16 -
NC: 2024:KHC-K:3478-DB
dismissed. Rest of the findings of the trial
court is maintained.
iv. No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
BL
Ct:VK
