Karnataka High Court
Basappa vs Hanamantappa on 4 November, 2024
-1-
NC: 2024:KHC-D:16118
RFA No. 100237 of 2014
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 100237 OF 2014 (DEC/INJ)
BETWEEN:
1. KUMAR BASAPPA
S/O. HANAMANTAPPA PUGASHETTI,
AGE: 19 YEARS,
OCC: AGRICULTURE,
R/O: BAIRANATTI,
TALUK: GOKAK,
DIST: BELAGAVI-590001.
2. KUMAR PANDAPPA
S/O. HANUMANTAPPA PUGASHETTI,
AGE: 15 YEARS,
OCC: AGRICULTURE,
R/O: BAIRANATTI,
TALUK: GOKAK, DIST: BELAGAVI-590001
SINCE MINOR REPRESENTED BY
NATURAL GUARDIAN APPL NO.3
ASHPAK
KASHIMSA
MALAGALADINNI
3. SARASVATI
W/O. HANAMANTAPPA PUGASHETTI,
AGE: 38 YEARS,
OCC: AGRICULTURE,
R/O: BAIRANATTI,
Location: TALUK: GOKAK,
HIGH
COURT OF DIST: BELAGAVI-590001.
KARNATAKA
...APPELLANTS
(BY SRI. SHIVARAJ S BALLOLI, ADVOCATE)
AND:
1. HANAMANTAPPA
S/O. PANDAPPA PUGASHETTU,
AGE: 42 YEARS,
OCC: SERVICE,
-2-
NC: 2024:KHC-D:16118
RFA No. 100237 of 2014
R/O: HONAKUPPI,
TALUK: GOKAK,
DIST: BELAGAVI-590001.
2. MAYAVVA
W/O. PANDAPPA PUGASHETTI,
AGE:55 YRS,
OCC:HOUSEHOLD WORK,
R/O. HONAKUPPI,
TAL:GOKAK,
DIST:BELAGAVI-590001.
3. SMT. VIJAYALAXMI
W/O. LAXMAN AIDUDDI,
AGE: 46 YEARS, OCC: H/W,
R/O: MARADISHIAPUR,
TALUK: GOKAK,
DIST: BELAGAVI-590001.
4. SMT. BASAVVA
W/O. BASAPPA HEGADE,
AGE: 44 YEARS,
OCC: H/W,
R/O: HONAKUPPI,
TALUK: GOKAK,
DIST: BALAGAVI.
...RESPONDENTS
(BY SRI. K. ANANDKUMAR FOR R3, ADVOCATE)
THIS RFA IS FILED U/O.41 RULE(1) R/W. SEC.96 OF CPC.,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
17.11.2014 PASSED IN O.S.NO.110/2011 ON THE FILE OF I ADDL.
SENIOR CIVIL JUDGE, GOKAK BY ALLOWING THE TOP NOTED
APPEAL TO MEET THE ENDS OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC-D:16118
RFA No. 100237 of 2014
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
1. This appeal is arising from the decree dismissing
the suit for partition and separate possession. The suit is
filed challenging the compromise decree in O.S.No.644/2010
on the file of Civil Judge, Gokak which was decreed in terms
of the Compromise entered into among the parties on
26.02.2011. The plaintiffs/appellants are not the parties to
the said Compromise. However, they are claiming under the
1st defendant- Hanamantappa who was a party to the said
suit in O.S.No.644/2010. The admitted genealogy of the
parties is as under:
(Pandappa) 18.09.1987
Mayavva (D-2)
Vijayalaxmi Basavva Hanamantappa (D1)
Sarasavva (P-3)
Basappa (P-1) Pandappa (P-2)
NC: 2024:KHC-D:16118
2. One Sri.Pandappa was the propositus. He died on
18.09.1987. His wife is Mayavvaa. The couple has two
daughters and one son. Vijaylaxmi and Basavva are the
daughters. Hanamantappa is the son. The suit is filed by two
children and wife of Hanamantappa. Hanamantappa is
arrayed as 1st defendant. Mayavva the mother of
Hanamantappa is 2nd defendant. Vijaylaxmi and Basavva who
are the sisters of Hanamantappa are arrayed as defendants
No.3 and 4.
3. The plaintiffs alleged that the properties are the
exclusive properties of the 1st defendant-Hanamantappa.
This contention raised on the premise that Pandappa the
original owner died on 18.09.1987. The daughters of
Pandappa taking into consideration the marriage performed
by their father Pandappa, waived their right over the
properties left behind by Pandappa and with their consent,
the properties were mutated in the name of 1st defendant
Hanamantappa. Thus, it is contended that Hanamantappa
alone is the exclusive owner of the properties which is
evidenced in ME No.4875 of Sunadholli village, Taluk:Gokak.
NC: 2024:KHC-D:16118
4. In the aforementioned facts, it is contended that
the rights of defendants No.2 to 4 if any, over the properties
got extinguished in the year 1988 itself and defendants No.2
to 4 are not in joint possession of the suit properties. Hence,
in view of the oral partition between Hanamantappa and his
two sisters, the sisters of Hanamantappa lost right over the
properties and they cannot claim any right over the suit
schedule properties.
5. It is further alleged that 1st defendant
Hanamantappa was addicted to vices and taking undue
advantage of this situation, a suit is filed in O.S.No.644/2010
by 3rd defendant claiming partition in the properties. The said
suit is settled through Compromise on the joint application
filed by the parties to the suit and the suit properties are
partitioned among the parties to the said suit and
accordingly based on the said Compromise, the defendants
are asserting their right over the properties said to have
been allotted to their respective share. Under these
circumstances, the suit is filed for relief of declaration and
injunction.
NC: 2024:KHC-D:16118
6. It is further stated that there was a partition
among the plaintiffs and 1st defendant and in terms of the
said partition, the name of 1st defendant was deleted from
the property records vide the order passed by the Deputy
Tahasildar, Koujalagi and ME No.133 is certified recording
the plaintiffs name in the records of the suit schedule
properties. Based on the said arrangement, relief of
declaration is sought that the plaintiffs are the owners and
the Compromise decree in O.S.No.644/2010 does not bind
the share of the plaintiffs.
7. Defendant No.3 contested the suit. Defendant
No.3 denied the claim of the plaintiffs that defendant No.3
has waived right over the suit schedule properties.
Defendant No.3 also contended that the partition recorded in
O.S.No.644/2010 is a valid compromise wherein the
daughters and son of late Pandappa have effected a partition
of properties which they inherited from Pandappa and they
prayed for dismissal of the suit on the premise that the
plaintiffs have no share in the properties allotted to the share
of defendant No.3 and her sister who is defendant No.4.
NC: 2024:KHC-D:16118
8. The written statement filed by defendant No.3 is
adopted by rest of the defendants namely defendant No.2
her mother, defendant No.4 her sister as well as defendant
No.1 her father.
9. The Trial Court on examining the materials on
record has concluded that the plaintiffs are not entitled to
the relief of declaration as sought for and consequently the
Trial Court has dismissed the suit.
10. The issue No.1 relating to the ownership of the
suit properties is answered against the plaintiffs and issue
No.2 relating to the exclusive possession of the plaintiffs
over the suit schedule properties is also answered against
the plaintiffs and the Trial Court has also come to the
conclusion that the plaintiffs have no cause of action to file
the suit.
11. Aggrieved by the dismissal of the suit, the
plaintiffs are before this Court. Learned counsel appearing
for the appellants would contend that the Trial Court could
NC: 2024:KHC-D:16118
not have accepted the claim based on the Compromise in
O.S.No.644/2010, in view of the fact that already there was
a waiver of right by plaintiffs in O.S.No.644/2010 in the year
1988 itself. Having given-up right over the properties in the
year 1988, the suit for partition could not have been filed in
the year 2010. It is also contended that subsequent to the
certification of mutation entry in the name of defendant No.1
i.e., MF No.4875 pursuant of waiver of right by the plaintiffs,
there was a further arrangement between the plaintiffs and
the 1st defendant and all the properties stood transferred in
the names of the plaintiffs and name of 1st defendant was
deleted and accordingly ME No.133 of Sunadholi village was
certified. Thus, the plaintiffs/appellants would contend that
the decree for partition does not bind the share of the
plaintiffs as the plaintiffs are not the parties to the said suit
in O.S.No.644/2010. It is also urged that the Trial Court has
not appreciated the oral and documentary evidence and
conduct of 3rd and 4th defendant who have given up their
claim over the suit schedule properties way back in the year
NC: 2024:KHC-D:16118
1988 and have not chosen to claim any right over the
properties till the year 2010.
12. Learned counsel appearing for the
defendants/respondents would contend that the suit is
rightly dismissed by the Trial Court given the fact that
defendants No.2 to 4 are the Class-I heirs of late Pandappa
who died in the year 1987 and after his demise there is no
transfer of properties in the manner known to law and in
absence of any registered document extinguishing their right
over the properties and conferring right in favour of 1st
defendant the plaintiffs cannot claim any exclusive right over
the properties. It is also the contention of the learned
counsel appearing for the defendants/respondents that the
Compromise decree passed in O.S.No.644/2010 is a valid
compromise in the eye of law as it was a compromise among
Class-I heirs of late Pandappa and as there was no partition
earlier to compromise entered into in the year 2010. The
Trial Court in O.S.No.644/2010 has rightly accepted the
compromise and passed a decree for partition based on the
consent of the parties. It is the contention that if at all the
- 10 -
NC: 2024:KHC-D:16118
plaintiffs have any share in the properties, then they must
claim share in the properties allotted to the share of 1st
defendant and not in the entire properties which are
partitioned in accordance with the terms of settlement
entered into in O.S.No.644/2010.
13. This Court has considered the contentions raised
at the bar. The following point arises for consideration:
(a) Whether the plaintiffs establish that the decree
passed in O.S.No.644/2010 is illegal and they
are the exclusive owners and in possession of
the suit schedule properties?
14. Though Sri.Shivaraj S. Ballolli, learned counsel
appearing for the appellants would contend that the written
statement given by defendants No.2, 3 and 4 after the death
of Pandappa which are in writing would indicate that
defendants No.2, 3 and 4 have given up their claim over the
properties and mutation is certified after due notice to them,
what is required to be noticed on perusal of the records is
that all those records would indicate that defendants No.2 to
4 have relinquished their rights over the properties after the
- 11 -
NC: 2024:KHC-D:16118
death of their father Pandappa and they have also given the
consent to enter the name of 1st defendant their brother in
the property records. Though it is urged that it is to be
construed as partition among the children of Pandappa, there
is no pleading to that effect. There is no pleading to the
effect that it was a family arrangement among the children
of Pandappa after the death of Pandappa. This being the
position, on going through the averments in the
aforementioned statements marked at Ex.P-12, P.13 and
P.14, it is noticed that the said documents are styled as if
they are the documents wherein defendants No.2 to 4 have
relinquished their right over the immoveable properties. In
case, the rights over the immoveable properties are to be
extinguished then there has to be a registered document
transferring the title over the properties. No such document
is produced before the Trial Court and it is not the case of
the plaintiffs that defendants No.2 to 4 have relinquished
their rights over the properties through registered
documents. Under these circumstances, the contention that
defendants No.2 to 4 did not have any right over the
- 12 -
NC: 2024:KHC-D:16118
properties in view of the alleged relinquishment of 1988,
cannot be accepted.
15. It is also relevant to note that defendant No.1 has
not supported the case of the plaintiffs. Defendant No.1 on
the other hand has justified the partition which was effected
through the compromise decree passed in O.S.No.644/2010.
The said suit was settled in terms of Compromise Petition
presented by the parties to the said proceedings namely two
daughters and wife of late Pandappa. The 1st defendant was
one of the defendants in the said suit and in the said suit all
the family properties have been partitioned. Since this Court
has concluded that the daughters and wife of late Pandappa
have not lost rights over the properties, the said suit for
partition was certainly maintainable and this Court does not
find any illegality in the said decree for partition. It is also
relevant to note that the present plaintiffs who are the wife
and children of late Pandappa were not necessary parties to
the said suit.
- 13 -
NC: 2024:KHC-D:16118
16. For the aforementioned reasons, this Court does
not find any error in the findings of the Trial Court in holding
that the plaintiffs are not the absolute owners and not in
exclusive possession of the suit properties.
17. However, what is required to be noticed is the
properties are the ancestral properties in the hands of the 1st
defendant -Hanamantappa. However, it is not forthcoming
whether the properties in the hands of Hanamantappa are
inherited under Section 6 or Section 8 of Hindu Succession
Act, 1956. If the properties are inherited by Hanamantappa
under Section 6 then the children of Hanamantappa are
entitled to claim share in it. However, if the properties are
inherited by Hanamantappa under Section 8 of Hindu
Succession Act of 1956 then his children cannot claim share
in the said properties during his life time. Since there are no
materials in this behalf and as the relief of partition is not
claimed the question relating to entitlement of plaintiffs in
the property allotted to the share of 1st defendant is not
decided and the same shall be decided in case any suit is
filed by the plaintiffs against 1st defendant.
- 14 -
NC: 2024:KHC-D:16118
18. For the aforementioned reasons, this Court does
not find any reason to interfere with the judgment and
decree passed by the Trial Court. Accordingly, the suit is
dismissed with the observations recorded in the preceding
paragraph.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
GVP
