Karnataka High Court
Smt.Girija @ Mamata vs Gurappa Basappa Kurubar on 8 November, 2024
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NC: 2024:KHC-D:16332
RFA No. 100315 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO.100315 OF 2016 (PAR-)
BETWEEN:
SMT.GIRIJA @ MAMATA
W/O. BIRENDRAKUMAR KURBAR,
AGE: 41 YEARS,
OCC: EMPLOYEE,
R/O: DANESHWARI NAGAR,
A BLOCK, 3RD CROSS,
HAVERI-581110.
...APPELLANT
(BY SRI. PRASHANT V. MOGALI, ADVOCATE)
AND:
1. GURAPPA BASAPPA KURUBAR,
ASHPAK
KASHIMSA
MALAGALADINNI
AGE: 81 YEARS,
OCC: RETIRED,
R/O: PWD QUARTERS,
H.NO.A-48,
NEAR HEAD POST HIDKAL DAM,
Location:
HIGH TQ: HUKKERI,
COURT OF
KARNATAKA DIST: BELAGAVI.
(DELETED VIDE ORDER DATED 02.03.2020)
2. SMT. SHANTAVVA
W/O. GURAPPA KURBAR,
AGE: 71 YEARS,
OCC: RETIRED,
R/O: PWD QUARTERS,
H.NO.A-48,
NEAR HEAD POST HIDKAL DAM,
TQ: HUKKERI,
DIST: BELAGAVI.
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NC: 2024:KHC-D:16332
RFA No. 100315 of 2016
3. ANURADHA @ BIBI
W/O. PRADEEP YATTINAMANI,
AGE: 49 YEARS,
OCC: HOUSEHOLD,
R/O: GOKAK,
GUMBIGUDI ROAD,
GURUVAR PETE.
4. KU.RAGHAVENDRA
S/O. BIRENDRAKUMAR KURBAR,
AGE: 19 YEARS,
OCC: STUDENT,
R/O: PWD QUARTERS,
H.NO.A-48,
NEAR HEAD POST HIDKAL DAM,
TQ: HUKKERI,
DIST: BELAGAVI.
5. KU.BHAGYA
D/O. BIRENDRAKUMAR KURUBAR,
AGE: 17 YEARS,
OCC: STUDENT,
R/O: PWD QUARTERS,
H.NO.A-48,
NEAR HEAD POST HIDKAL DAM,
TQ: HUKKERI,
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. DINESH M. KULKARNI, ADVOCATE FOR R1 TO R4;
R5-SERVED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 01.09.2016 IN
O.S.NO.223/2015 PASSED BY THE III ADDITIONAL SENIOR CIVIL
JUDGE, HUBBALLI BY ALLOWING THIS APPEAL IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:16332
RFA No. 100315 of 2016
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
This appeal is filed against decree for partition. There
are three properties described in schedule 'B'. Item No.1 is
Sy.No.682/1 measuring 4-Acre 33-Guntas situated in
Byahatti village of Hubballi taluk, item No.2 is Sy.No.319/2
measuring 8-Acre 4-Guntas situated in Talakattal village of
Gokak taluka and item No.3 is plot No.9 in Sy.No.187/2A
of Gokak, Tq: Gokak.
2. The description movables is provided in the
plaint. However, existence of such movables, is not
established by leading evidence. Hence, suit is dismissed
in respect of those movables.
3. The suit is decreed in respect of item No.1 of
suit property and in respect of item No.2 and 3 properties,
suit is dismissed accepting the defence that the said
properties are the self-acquired properties of defendant
No.1.
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4. Aggrieved by the decree dismissing the suit in
respect of item No.2 and 3 and in respect of movables
properties, plaintiff is in appeal.
5. The admitted genealogy is as under:
Gurappa
(Deft. No.1)
Shantavva
(Deft. No.2)
Birendrakumar Anuradha @ BIBI (Deft. No.3)
Girija @ Mamata (Plaintiff)
Raghavendra (Deft. No.4) Bhagya (Deft.No.5)
6. One Gurappa S/o Basappa Kurubar is the
propositus and he was arrayed as defendant No.1 and his
wife by name Smt. Shantavva as defendant No.2. The
couple had a son by name Birendrakumar and a daughter
by name Anuradha. The Birendrakumar died in the year
2013. At the time of his death, he was married to one
Girija-the plaintiff. The two children of Birendrakumar from
his deceased 1st wife-Rekha are arrayed as defendants
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No.4 and 5 and Anuradha-the sister of late Birendrakumar
is arrayed as defendant No.3.
7. The plaintiff contended that all the suit schedule
properties are the joint family properties and prayed for
partition and separate possession of 1/4th share.
8. The defendants together contested the suit, and
disputed the plaintiff's claim. However, relationship is
admitted. As far as item No.2 and 3 properties are
concerned, it is contended that the said properties are
self-acquired properties of defendant No.1, who was
working in Irrigation Department at Hidkal Dam and
existence of 'B' schedule properties is denied.
9. The trial Court framed the issues relating to the
nature of properties as pleaded by both the parties. The
Court has concluded that item No.1 is the joint family
property and item No.2 and 3 are the self-acquired
properties of defendant No.1 and suit is dismissed in
respect of item No.2 and 3 of 'B' schedule properties on
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the premise that existence of 'B' schedule and movable
properties, is not established.
10. Learned counsel appearing for the appellant-
plaintiff would contend that the income from item No.1 of
'B' schedule property, which is admittedly the ancestral
property, is utilized to purchase item No.2 and 3 of 'B'
schedule properties and this being the position, Trial Court
could not have dismissed the suit in respect of item No.2
and 3 of 'B' schedule properties. He would also contend
that existence of item No.1 of 'B' schedule property and
the income from said property being established, the Court
ought to have concluded that income from item No.1 of 'B'
schedule property, is sufficient enough to purchase item
No.2 and 3 of 'B' schedule properties.
11. It is also urged that the photographs relating to
'B' schedule properties are produced and Trial Court could
not have dismissed the suit in respect of item No.2 and 3
of 'B' schedule properties. It is also his contention that
nature of item No.2 of schedule 'B' property as joint family
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property is very much established as the said property is
transferred in the name of late Birendrakumar on
25.05.1993 by way of Waradi, which is evidenced in
M.E.No.4652 (Ex.P.22).
12. Learned counsel appearing for respondents/
defendants would contend that item No.1 of 'B' schedule is
admittedly the joint family property and share is granted
to the plaintiff in the said property and same is not
questioned by defendants.
13. It is his contention that as far as item Nos.2
and 3 of 'B' schedule properties are concerned, they are
self-acquired properties of defendant No.1. Defendant
No.1 purchased the said properties from his income from
employment. He would contend that item No.2 of 'B'
schedule property is purchased in the year 1987 for a sale
consideration of Rs.12,000/- as evidenced in the sale deed
marked at Ex.D.1. It is his further contention that item
No.3 of 'B' schedule property is purchased in the year
1989 for a sale consideration of Rs.4,000/- and the said
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sale deed is marked at Ex.D.10. He would also contend
that income from his employment was good enough to
purchase the aforementioned properties and there was no
surplus income from item No.1 of 'B' schedule property.
Thus, the said properties are rightly held to be self-
acquired properties.
14. It is also urged that transfer of the property by
way of an application in the name of late Birendrakumar
without any registered document, does not confer any title
to the property and does not make out as joint family
property. He would also contend that said entry was later
cancelled on an application filed by defendant No.1 and
said cancellation was not questioned by defendant No.1.
He would also contend that plaintiff on the death of late
Birendrakumar has secured appointment on
compassionate ground and no injustice is done to the
plaintiff. Thus, he would contend that appeal is to be
dismissed.
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15. This Court has considered the contentions
raised at the bar and perused the records. The following
points arise for consideration.
(i) Whether the appellant/plaintiff establishes
that item Nos.2 and 3 of 'B' schedule
properties are the joint family properties
and establishes existence of 'B' schedule
properties?
(ii) Whether defendant No.1 establishes that
item nos.2 and 3 of 'B' schedule properties
are self-acquired properties?
16. It is the settled principle of Hindu Law that a
property standing in the name of an individual is presumed
to be self-acquired property, unless proved otherwise. As
far as item Nos.2 and 3 of 'B' schedule properties are
concerned, they admittedly stand in the name of
defendant No.1. Admittedly, he was employed and
properties are purchased in his name in the year 1987 and
1989 for a sale consideration of Rs.12,000/- and
Rs.4,000/- respectively. The fact that he was gainfully
employed, is not in dispute. Though, the plaintiff would
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contend that said properties are purchased from the
income of ancestral property at item No.1 of 'B' schedule,
nothing is pleaded to show that from the ancestral
property, dependent No.1 had a surplus income and said
surplus income is utilized to purchase item No.2 and 3 of
'B' schedule properties.
17. In the absence of any such pleading and
evidence, it is not possible to hold that defendant No.1 had
surplus income from item No.1 of 'B' schedule property
and said surplus income was utilized to purchase the item
No.2 and 3 of 'B' schedule properties. Since his
independent source of income is very much established
and it is good enough to purchase item No.2 and 3 of 'B'
schedule properties, this Court is the view that
presumption of self-acquisition of item No.2 and 3 of 'B'
schedule properties in the name of defendant No.1 is not
rebutted. Hence, Trial Court is justified in dismissing the
suit in respect of item No.2 and 3 of 'B' schedule
properties.
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18. As far as movables in 'B' schedule properties
are concerned except producing the photographs, no
evidence is led to show that said properties are with the
defendants. Inventory is not taken and existences of
movables are not established, Trial Court is justified in
dismissing the suit in respect of movables.
19. It is also brought to the notice of this Court that
plaintiff is now employed in place of late Birendrakumar on
compassionate grounds. It is also brought to the notice of
this Court that defendant No.1-the father-in-law of plaintiff
died during the pendency of this appeal i.e., on
04.02.2020. Plaintiff also becomes class-I heir to the
property of late Gurappa. Hence, plaintiff would inherit
1/5th share, defendant No.2 will inherit 1/5th share,
defendant No.3-daughter of Gurappa will inherit 1/5th
share, defendant No.4-the grandson will inherit 1/5th share
and defendant No.5-granddaughter will inherit 1/5th share
in item Nos.2 and 3 of 'B' schedule properties.
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20. As far as item No.1 of 'B' schedule property is
concerned since it is the ancestral property, the plaintiff-
Girija would inherit 1/16th share in the said property in the
share of late Birendrakumar and she will also inherit 1/20th
in the share of Gurappa. Thus, she is entitled to 9/80th
share in the said suit properties and defendant Nos.2 to 5
are entitled 9/20th share in suit properties.
21. Hence, the following:
ORDER
(i) The appeal is allowed-in-part.
(ii) The judgment and decree dated
01.09.2016 in O.S.No.223/2015 on the
file of III Additional Senior Civil Judge,
Hubballi are modified.
(iii) Suit of the plaintiff in O.S.No.223/2015
on the file of III Additional Senior Civil
Judge, Hubballi is decreed in part.
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(iv) Plaintiff is entitled to 1/12th share in item
No.1 to 3 of 'B' schedule properties.
(v) Defendant No.2 is entitled to 5/12th
share in item No.1 to 3 of 'B' schedule
properties.
(vi) Defendant No.3 is entitled to 1/3rd share
in item No.1 to 3 of 'B' schedule
properties.
(vii) Defendant No.4 is entitled to 1/12th
share in item No.1 to 3 of 'B' schedule
properties.
(viii) Defendant No.5 is entitled to 1/12th
share in item No.1 to 3 of 'B' schedule
properties.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
AM
CT:ANB
