Karnataka High Court
Somappa S/O. Bashetteppa ... vs Dr. Ishwar S/O. Bashetteppa ... on 6 November, 2024
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NC: 2024:KHC-D:16219
RFA No. 3050 of 2011
C/W RFA.CROB No. 105 of 2012
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 3050 OF 2011 (PAR)
C/W
RFA CROSS OBJ NO. 105 OF 2012
IN RFA NO.3050/2011
BETWEEN:
SRI. BASAPPA BASETTEPPA PATTANSHETTI,
AGE: 64 YEARS, OCC: RET. LECTURER,
R/O: RAINAPUR, TQ.SAUNDATTI,
BELGAUM DIST.
PIN- -590002.
...APPELLANT
(BY SRI. B. V. SOMAPUR, SRI. S.M. NADAF AND SRI. C.B.
SHAKUNAVALLI, ADVOCATES)
AND:
1. DR. ISHWAR S/O. BASHETTEPPA PATTANSHETTI,
AGE: 63 YEARS, OCC: MEDICAL PRACTITIONER,
ASHPAK
KASHIMSA R/O: 85, Y.G. SWAN, KALMAZOO,
MALAGALADINNI
MI-49009, U.S.A.
2. SOMAPPA S/O. BASHETTEPPA PATTANSHETTI,
Location:
HIGH AGE: 52 YEARS, OCC: AGRICLTURE,
COURT OF R/O: RAINAPUR, TQ.SAUNDATTI,
KARNATAKA
DIST: BELGAUM-590002.
3. DR. MAHADEV
S/O. BASHETTEPPA PATTANSHETTI,
AGE: 69 YEARS, OCC: MEDICAL PRACTITIONER,
R/O: SRI. APARTMENTS, VIDYANAGAR,
NEAR KMC, HUBLI, DIST: DHARWAD.
PIN - 580001.
4. SMT. MEENAXI W/O. NAGAPPA PATTANASHETTI,
AGE: 69 YRS, OCC: HOUSEHOLD WORK,
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NC: 2024:KHC-D:16219
RFA No. 3050 of 2011
C/W RFA.CROB No. 105 of 2012
R/O: C/O. SUBHAS PATTANSHETTI LAWYER,
B.K. KAGRALI OPP: HINDLCO FACTORY,
DIST: BELGAUM, PIN-590001.
5. DR. SMT. VIJAYA W/O. SURESH YALLUR,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O: HIREBAGEWADI, TQ: BAILHONGAL,
DIST: BELGAUM, PIN-590004.
6. SMT. SUREKHA W/O. GANGADHAR WALI,
AGE: 34 YEARS, OCC: HOUSEHOLD WORK,
R/O: BEHIND COURT CAMPUS,
BAILHONGAL, DIST: BELGAUM .
PIN - 590004.
7. SMT. NAGARATNA W/O. LOKESH AMBALI,
AGE: 31 YEARS, OCC: HOUSEHOLD WORK,
R/O: MARAGARKOPPA M.K. HUBLI,
TQ: BAILHONGAL, DIST: BELGAUM.
PIN-590004.
8. SUBHAS S/O. NAGAPPA PATTANSHETTI,
AGE: 29 YEARS, OCC: HOUSEHOLD WORK,
R/O: OPP. HINDALCO FACTOR,
B.K. KANGRALI, BELGAUM.
PIN-590001.
9. SMT. MALATI W/O. GIRISH WALI,
AGE: 27 YEARS, OCC: HOUSEHOLD WORK,
R/O: INCHAL ROAD, TQ: BAILHONGAL
DIST: BELGAUM.
...RESPONDENTS
(BY SRI. C.V. ANGADI, ADVOCATE FOR R2; SRI. MANJUNATH A.
KARIGANNAVAR AND SRI. SURESH S.S., ADVOCATES FOR R3;
R-1 NOTICE DISPENSED WITH; R-4 TO R-9 SERVED)
THIS RFA FILED UNDER SEC. 96 R/W ORDER 41 RULE 1 OF
THE CPC, PRAYING THAT THE DEFENDANTS MAY KINDLY BE
DIRECTED TO EFFECT PARTITION IN THE SUIT PROPERTIES BY
MEETS AND BOUNDS AND HANDOVER THE SEPARATE POSSESSION
ON 1/6TH SHARE TO THE PLAINTIFF AND IF THE DEFENDANTS FAILS
TO DO SO, IN THAT EVENT, IT IS PRAYED THAT, THE PARTITION
MAY KINDLY BE EFFECTED AS PROVIDED U/SEC. 54 OF C.P.C AND
AN AD-INTERIM EX-PARTE TEMPORARY INJUNCTION MAY KINDLY BE
ISSUE AGAINST THE DEFENDANTS NOT TO ALIENATE THE SUIT
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NC: 2024:KHC-D:16219
RFA No. 3050 of 2011
C/W RFA.CROB No. 105 of 2012
SCHEDULE PROPERTIES PENDING DISPOSAL OF THE SUIT AND FULL
COSTS OF THE SUIT MAY KINDLY BE AWARDED AND PERMISSION
TO AMEND THE PLAINT AS AND WHEN NECESSARY MAY KINDLY BE
GRANTED.
IN RFA CROSS OBJ NO. 105/2012
BETWEEN:
MR. SOMAPPA
S/O. BASHETTEPPA PATTANESHETTI,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O. RAINAPUR, TQ: SAUNDATTI,
DIST: BELGAUM - 591126.
...CROSS OBJECTOR
(BY SRI. C. V. ANGADI, ADVOCATE)
AND:
1 . DR. ISHWAR
S/O. BASHETTEPPA PATTANASHETTI,
AGE: 64 YEARS, OCC: MEDICAL PRACTIONER,
R/O. WASHINGTON USA-110021.
2 . MR. BASAPPA
S/O. BASHETTEPPA PATTANSHETTI,
AGE: 65 YEARS, OCC: RETIRED LECTURER,
R/O. RAINAPUR, TQ: SAUNDATTI,
DIST: BELGAUM-591126.
3 . MR. MAHADEV
S/O. BASHETTEPPA PATTANASHETTI,
AGE: 67 YEARS,
OCC: RETIRED PRACTITIONER,
R/O. SHRI APARTMENTS,
VIDYANAGAR,
NEAR KMC, HUBLI.
PIN - 580021.
4 . SMT. MEENAXI W/O. NAGAPPA PATTANSHETTI,
AGE: 62 YEARS,
OCC: HOUSEHOLD WORK,
C/O. SUBHASH PATTANASHETTI,
LAWYER, B.K. KANGRALI,
OPP. HINDALCO FACTORY,
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NC: 2024:KHC-D:16219
RFA No. 3050 of 2011
C/W RFA.CROB No. 105 of 2012
BELGAUM-590001.
5 . SMT. VIJAYA W/O. SURESH YALLUR,
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
R/O. HIREBAGEWADI, TQ: BAILHONGAL.
DIST: BELGAUM-591001.
6 . SMT. SUREKHA
W/O. GANGADHAR WALI,
AGE: 40 YEARS,
OCC: HOUSE HOLD WORK,
R/O. BEHIND COURT CAMPUS,
BAILHONGAL, TQ: BAILHONGAL.
PIN - 590001.
7 . SMT. NAGARATHNA W/O. LOKESH AMBALI,
AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
R/O. MARAGANAKOPPA (M.K. HUBLI),
TQ: BAILHONGAL. - 591001.
8 . MR. SUBHAS S/O. NAGAPPA PATTANASHETTI,
AGE: 35 YEARS, OCC: ADVOCATE,
R/O. OPP. HINDALCO FACTORY,
B.K. KANGRALI- 580013.
9 . SMT. MALATI W/O. GIRISH WALI,
AGE: 34 YEARS, OCC: HOUSEHOLD WORK,
R/O. INCHAL ROAD, BAILHONGAL,
TQ: BAILHONGAL- 591001.
...RESPONDENTS
(BY SRI. B.V. SOMAPUR, ADVOCATE)
THIS RFA CROSS OBJECTIONS UNDER ORDER XLI RULE 22 OF
CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
05.02.2011 IN O.S.NO. 126/2007 ON THE FILE OF THE ADDL.
SENIOR CIVIL JUDGE, SAUNDATTI IN SO FAR AS IT RELATES, NOT
GRANTING 1/5TH SHARE IN SY.NO.88 AND SY. NO.138 (I.E., LANDS
AT SERIAL NO.4 AND 5 IN SCHEDULE A PROPERTIES) AND VPC
NO.398 AND 267 (PROPERTIES AT SERIAL NO.1 AND 2 IN
SCHEDULE-B PROPERTY) AND FURTHER PLEASED TO GRANT 1/5TH
SHARE IN THESE PROPERTIES, IN THE INTEREST OF JUSTICE AND
EQUITY.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RFA No. 3050 of 2011
C/W RFA.CROB No. 105 of 2012
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
This appeal is filed by the plaintiff in O.S.No.126/2007
on the file of the Senior Civil Judge, Saundatti and Cross
Objection is filed by 2nd defendant.
2. Suit is one for partition and separate possession.
There are two distinct schedules of properties. Schedule 'A'
comprises 6 properties and in Schedule 'B' there are two
house sites and two residential houses.
3. The suit is decreed in-part. Plaintiff and defendant
No.3 are allotted 1/4th share each in the properties bearing
Sy.Nos.88, 138 and 1/5th share each in properties bearing
VPC No.398 and 267. Defendants No.4 to 9 together were
awarded 1/4th share in the properties bearing No.88 and 138
and 1/5th share in VPC No.398 and 267. The suit was
dismissed in respect of remaining properties.
4. The admitted genealogy is as under:
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Bashetteppa (dead)
Sakkerawwa (Wife) (D-10)
Nagappa (dead) Basappa Dr.Ishwar Somappa Dr.Mahadev Meenaxi (wife)
(ptf) (D-1) (D-2) (D-3) (D-4)
Smt.Vijaya Surekha Nagaratna Subhas Malati
(D-5) (D-6) (D-7) (D-8) (D-9)
5. 2nd defendant is aggrieved by the decree for
partition granted in favour of the plaintiff in respect of all the
properties.
6. There were four brothers viz., Gangappa,
Patreppa, Bashetteppa and Erappa. In the year 1984, there
was a partition among Bashetteppa, Patreppa, Gangappa,
and children of Erappa as Erappa was no more by then. In
the said partition, the family properties were partitioned.
7. Bashetteppa had five sons as per the genealogy
provided in the plaint. By the time the suit was filed, his
elder son Nagappa was no more, second son Basappa filed a
suit for partition, third son Ishwar is 1st defendant, fourth
son - Somappa is 2nd defendant and fifth son - Mahadev is
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3rd defendant. The wife of elder son Nagappa i.e. Meenaxi is
arrayed as 4th defendant and children of Nagappa are
arrayed as defendants No.5 to 9.
8. The partition of 1984 is disputed to the extent
that name of Somappa is wrongly shown in the partition.
Said partition is evidenced in ME No.3296 of Rainapur
Village. In the said partition which is effected among
Patreppa, Bashetteppa, Gangappa and children of their
brother Erappa, the son of Bashetteppa viz., Somappa who is
defendant No.2 is also allotted share in property bearing
Sy.Nos.452, 215. Bashetteppa died in the year 1995.
9. The suit is primarily filed on the premise that the
allotment of share to Somappa in the year 1984 during the
life time of Bashetteppa is incorrect and that allotment is to
be construed as allotment of share to Bashetteppa.
10. Defendant No.1 was not served with the notice in
the plaint. Defendant No.2 is shown as power of attorney
holder of defendant No.1. 2nd defendant contends that he is
not the power of attorney holder of defendant No.1.
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Defendant No.2 appeared and contested the suit and he
disputed his alleged status as the agent of defendant No.1.
11. Defendant No.3 contested the suit and claimed
partition. Defendants No.4 and 8 contested the suit.
Defendant No.10 died during the pendency of the suit and
his legal heirs are brought on record. Defendants No.1 and 6
were placed exparte.
12. 2nd defendant took a stand that item Nos.3 and 4
of 'B' schedule properties and also item Nos.1 to 3 and 6 are
his self acquired properties.
13. The Trial Court framed following issues based on
the contentions of the parties.
1. Whether the plaintiff proves that the suit
schedule A and B properties are his ancestral
joint family properties?
2. Whether the suit is bad for non-inclusion of all
the joint family properties?
3. Whether the plaintiff is entitled for partition and
separate possession in the suit schedule
properties?
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4. Whether the defendant No.9 is entitled for the
share in the suit properties?
5. What order or decree?
Additional issues:
1. Whether the second defendant proves that the
properties in block No.469, 215, 452 and VPC
No. 434 and 677/27 are his self acquired
properties?
2. Whether the second defendant proves that
property in block No.23 is self acquired property
of his wife Smt.Sunanda?
3. Whether the suit is bad for non joinder of
necessary parties?
4. Whether the second defendant proves that
property bearing block No.235/1 and 235/2
measuring 7 acres 00 guntas and 6 acres 39
guntas respectively were purchased in the name
of defendant No.3 and plaintiff respectively out
of joint family income as alleged at para No.10 of
written statement?
14. The Trial Court concluded that item Nos.1 to 3
and 6 of 'A' schedule are the self acquired properties of
defendant No.2 and also item No.3 and 4 are the self
acquired properties of defendant No.2. In respect of other
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properties viz. item Nos.4 and 5 of 'A' schedule and 1 and 2
of 'B' schedule granted a decree for partition.
15. Aggrieved by the aforementioned judgment and
decree, the aforementioned appeal and cross objections have
been filed.
16. Learned counsel appearing for the
appellant/plaintiff would contend that the finding relating to
item No.1 to 3 and 6 of 'A' schedule and item No.3 and 4 of
'B' schedule are erroneous. It is the contention that
defendant No.2 did not have an independent source of
income to acquire the properties and the properties are the
acquired utilising the joint family income, as such all those
properties would become the joint family properties. It is
further contended that when the partition took place in the
year 1984, plaintiff's father Bashetteppa was alive and when
Bashetteppa was alive, no share could have been given to
his son Somappa without allotting shares to plaintiff and
other brothers of the plaintiff. Thus, it is contended that
notwithstanding mutation Entry No.3296 showing allotment
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of share in favour of 2nd defendant - Somappa, the suit
ought to have been decreed in respect of entire properties.
17. Insofar as item Nos.6 is concerned, it is urged
that there was an agreement for sale in respect of the said
property in the name of 2nd defendant and it was intended
that the property is to be purchased for and on behalf of the
family comprising the plaintiff and other defendants.
Defendant No.2 with an intention to defeat the right of the
plaintiff got the property purchased in the name of his
father-in-law, later it is transferred to his wife and said
property cannot be considered as the self-acquired property
of defendant No.2.
18. Learned counsel appearing for 3rd defendant who
is respondent No.3 would support the contention of the
plaintiff/appellant.
19. Learned counsel appearing for defendant
No.2/respondent No.2 would contend that item Nos.1 to 3
and 6 of 'A' schedule and item Nos.3 and 4 of 'B' schedule
are the self acquired properties of 2nd defendant. It is his
contention that Sy.No.469 i.e., item No.1 property is
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transferred to him by his uncle Patreppa and there is a valid
mutation No.3049 in his favour. Thus, it becomes his self-
acquired property.
20. As far as Item Nos.2 and 3 viz., Sy.No.215 and
452 are concerned, it is submitted that the said properties
are allotted to 2nd defendant in the partition of 1984 which is
evidenced in M.E.No.3296 and as far as item No.6 is
concerned, it is his submission that his father-in-law
purchased the property and later gifted the property to his
wife and wife is the owner of the property and wife is
necessary party to the suit and without impleading his wife
as a party, the suit is not maintainable.
21. As far as Item Nos.3 and 4 of 'B' schedule is
concerned, it is his contention that no records are produced
to show that item Nos.3 and 4 are the ancestral properties
standing in the name of Bashetteppa.
22. It is also urged by the learned counsel appearing
for the 2nd defendant that 2nd defendant is not the agent of
1st defendant and there is no valid service of notice to 1st
defendant. Thus, urged that the matter be remitted to the
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trial Court to issue notice to 1st defendant and reconsider the
case on merits.
23. It is further contended that plaintiff and 3rd
defendant had purchased two agricultural lands and those
properties were purchased from the joint family income and
those properties were sold by the plaintiff and defendant
No.3 and without including those properties and the sale
consideration amount, the suit is not maintainable.
24. This Court has considered the contentions raised
at the bar and perused the records. The following points
would arise for consideration:
(i) Whether the plaintiff and 3rd defendant
establish that item Nos.1 to 3 and 6 of 'A'
schedule are the joint family properties and
item Nos.3 and 4 of 'B' schedule are the joint
family properties?
(ii) Whether 2nd defendant has establishes that
item No.1 to 3 and 6 of 'A' schedule and item
No.3 and 4 of 'B' schedule are the self-
acquired properties?
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(iii) Whether the suit is not maintainable without
including the properties sold by plaintiff and
3rd defendant?
25. The two important documents are required to be
referred to. One is Ex.P.13 the mutation entry No.3296. This
reflects a partition which has taken place in the year 1984.
From the recitals in the said the document, it is evident that
partition took place among the brothers namely
Basavanneppa, Gangappa, Nagappa and children of Erappa
the deceased brother of the aforementioned three persons.
26. In the said partition, certain family properties
have been partitioned. However, it is interesting to note that
Bashetteppa's son Somappa who is defendant No.2 and the
cross objector is also allotted certain lands in Sy.No.452
measuring 2 acre 1 gunta and Sy. No.215 measuring 2 acre
34 guntas. In the partition among the brothers of his father
Somappa is not a necessary party. However, there can be a
further partition among Basavanneppa and all of his sons or
any one of his sons. It appears that Somappa demanded
partition and the partition took place among his father and
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his brothers and accordingly 2 acres 34 guntas in Sy.
No.215, 2/3rd share in Sy. No.215 measuring 2 acre 34
guntas and 2 acres 1 gunta in Sy.No.452 are allotted to the
share of Somappa.
27. Sri.C.V.Angadi, the learned counsel would urge
that it is not a partition between Basavanneppa and
Somappa and this additional share is given to Somappa by
Patreppa his uncle who was issueless and Patreppa was
having a soft corner in favour of his nephew Somappa who
was taking his care, accordingly the share is allotted to
Somappa and this partition should not be construed as a
partition between Basavaneppa and Somappa. This Court on
appreciation of the documentary evidence is of the view that
Somappa separated from his father Basavanneppa. This is
very much apparent from the facts that Basavanneppa was
allotted 14 acres 10 guntas in the said partition of 1984 and
Somappa is given around 3 acres of land in the partition of
1984.
28. It is also relevant to note that Somappa has
taken a defence that certain properties standing in his name
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are purchased by him and they are the self acquired
properties. This stand would also indicate that Somappa was
residing separately from his father and he claimed separate
independent income to purchase the said properties. Under
these circumstances, the Court has to take a view that
Somappa was separated from his father during the lifetime
of his father. Father Bashetteppa died in the year 1995,
thus, Somappa cannot inherit the share of his father because
of the bar contained under Section 6 of Hindu Succession
Act, 1956 as it stood then. The trial Court has concluded that
Somappa is not entitled to share in Sy.No.88 which was
allotted the share of Basavanneppa. The trial Court has
concluded that he was given share in the partition of 1984,
as such, he is not entitled to share in the said property. This
view cannot be taken as an incorrect view and this is based
on evidence as well as the supporting law as discussed
above.
29. As far as item No.1 property is concerned bearing
Sy.No.469 measuring 1 acre, it is noticed that from ME
No.3296 2/3rd share in the said property is allotted to the
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share of Patreppa. 1/3rd share is allotted to the son of Erappa
namely Annappa in the partition of 1984. Thus, the property
allotted to Patreppa becomes the self acquired property of
Patreppa who had no issues. Thereafter, it appears that
Patreppa has transferred the said property to his nephew
Somappa vide M.E.No.3409 which is certified in the year
1986. Based on this mutation entry, defendant No.2-
Somappa is contending that the self acquired property, as
the property is transferred in his favour. The Trial Court did
not accept this contention and held that there is no valid
transfer in the eye of law and the said transfer is not
evidenced in any registered document and accordingly
granted a decree for partition in respect of Sy. No.469 which
is shown to be 1 acre i.e., equivalent to the 2/3rd share of
late Patreppa. Said view cannot be faulted. However, it is to
be noticed that there is no evidence relating to the exact
date of death of Patreppa. Whether Patreppa is survived by
Bashetteppa or whether he predeceased Bashetteppa is not
forthcoming. Admittedly, Patreppa had no issues. Thus, the
Court would hold that property of Patreppa i.e., Sy.No.469
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would devolve upon his Class-II heirs who will be the
children of Bashetteppa, Gangappa and Erappa.
30. It is noticed that Gangappa and Erappa are not
made parties to the proceedings. In the share of Patreppa in
Sy.No.469, the plaintiffs and all the defendants and the
children of Gangappa and Erappa will also have share in the
properties. Since the children of Gangappa and Erappa are
not made parties to this proceeding, this Court is of the view
that they should be added as the parties to the final decree
proceedings and their share should also be called out in
Sy.No.469. To this extent the judgment in respect of
Sy.No.469 measuring 1 acre and item No.1 property is to be
modified.
31. As far as item No.2 property is concerned in the
partition of 1984, the said property is allotted to the share of
Somappa-2nd defendant. This Court has taken a view that
the partition of 1984 is acted upon and this Court has taken
a view that in a partition of 1984 Somappa is also allotted
share and it is relevant to note that the plaintiff has
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contended that Somappa is separated from his father in the
partition of 1984.
32. This being the position, this Court is of the view
that the plaintiff cannot maintain a suit in respect of item
No.2 property i.e., Sy.No.215 and that property is the
exclusive property of 2nd defendant and suit in respect of
said property is rightly dismissed by the trial Court. Hence,
the appeal in respect of that property is not maintainable.
33. As far as item No.3 property is concerned, it is
borne out from the records that the said property was sold
much prior to the filing of the suit. The purchaser is not
made a party. That property is sold by defendant No.2-
Somappa. Since the property was not available when the suit
was filed and the purchaser is not made a party and
alienation is not questioned, the suit is rightly dismissed in
respect of item No.3 property and appeal in respect of that
property is not maintainable.
34. As far as item No.4 property i.e., Sy.No.88 is
concerned, the said property was allotted to the share of
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Bashetteppa in the partition of 1984 and since the Court has
taken a view that Somappa is separated from his father in
the partition of 1984, in view of the bar contained under
Section 6 of Hindu Succession Act, Somappa is not entitled
to claim share in the property bearing Sy.No.88 and same is
to be divided among the children of Bashetteppa excluding
Somappa-2nd defendant.
35. As far as item No.5 property i.e., Sy.No.138 is
concerned this property is allotted to the share of Gangappa
in the partition of 1984 and thereafter one more partition
between Gangappa and Bashetteppa in the said partition the
said property is allotted to the share of Bashetteppa. Thus,
that property is the property of Bashetteppa and as already
noticed, Somappa separated son is not entitled to inherit the
property of his father Bashetteppa. Hence, the suit is rightly
decreed in respect of item No.5 property denying the share
to defendant No.2 and to this extent cross-objection filed by
defendant No.2 is not maintainable.
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36. As far as item No.6 is concerned i.e., Sy.No.223
measuring 4 acres 2 guntas, it is noticed from the record
that the property stands in the name of the wife of 2nd
defendant. It is also forthcoming from the record that the
property is transferred to her by her father. Though the
learned counsel appearing for the plaintiff/appellant would
contend that the sale proceeds from item No.3 property have
been utilized to purchase the property in the name of father-
in-law of defendant No.2 and later the properties have been
transferred in the name of the wife of defendant No.2,
materials on record do not support the said contention.
Added to that, wife of defendant No.2 in whose name the
property is standing is not made a party to the proceeding.
Under these circumstances, the suit in respect of item No.6
property is rightly dismissed by the trial Court and the
appeal claiming share in the said property is not
maintainable.
37. As far as item Nos.1 and 2 of 'B' schedule
properties are concerned, the Trial Court has granted share
in respect of these properties in favour of all the plaintiff and
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defendants including defendant No.2 and the plaintiff is not
aggrieved by this order, it is noticed that the plaintiff has not
filed any appeal awarding share in favour of separated son
i.e., defendant No.2. Hence, this Court does not find any
reason to modify the share granted by the trial Court in
respect of item No.1 and 2 of 'B' schedule properties.
38. As far as claim of the plaintiff in respect of item
No.3 and 4 of 'B' schedule is concerned the same was denied
by the trial Court on the premise that item No.3 and 4
properties are the separate properties of defendant No.2.
Since the plaintiff has contended that defendant No.2
separated from his father in the year 1984 plaintiff cannot
contend that the property standing in the name of the
defendants No.3 and 4 are the properties purchased from
the joint family income. Admittedly, those properties are
purchased after the partition of 1984. This being the
position, the trial Court has rightly dismissed the suit in
respect of item No.3 and 4 of 'B' schedule properties and
appeal in respect of item No.3 and 4 of 'B' schedule is not
maintainable.
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39. Hence, the following:
ORDER
(i) Appeal is allowed in-part.
(ii) The cross-objection is dismissed.
(iii) The suit of the plaintiff is decreed in-part.
(iv) The judgment and decree dated 05.02.2011
in O.S.No.126/2007 on the file of Additional
Senior Civil Judge, Saundatti are modified.
(v) The plaintiff is entitled to 1/3rd share in item
No.1 property of 'A' schedule along with heirs
of Basheteppa namely defendants No.1 to 9.
And 1/3rd share will go to the heirs of late
Gangappa. And the remaining 1/3rd will to the
heirs of Erappa.
(vi) Plaintiff is entitled to 1/30th share in item
No.1 property and each of the defendants is
entitled 1/15th share.
(vii) Suit in respect of item Nos.2 and 3 and 6 is
dismissed.
(viii) Decree passed by the Trial Court in respect of
item No.4 and 5 of 'A' schedule properties is
- 24 -
NC: 2024:KHC-D:16219
properties in 'B' schedule passed by the Trial
Court is confirmed and suit in respect of item
No.1 and 2 property of 'B' schedule passed
by the Trial Court is confirmed.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
BRN/GVP
CT:ANB
