Karnataka High Court
Shrikant S/O. Satappa Bennade vs Sunanda W/O. Dattaray Walake on 11 November, 2024
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NC: 2024:KHC-D:16411
RSA No. 100442 of 2014
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 100442 OF 2014 (PAR)
BETWEEN:
1. SHRIKANT S/O. SATAPPA BENNADE
AGE: 60 YEARS, OCC. AGRICULTURE
R/O. SAVADATTI, TQ. RAIBAG
DIST. BELGAUM-591317.
2. SMT. SUMITRA W/O. SHIRKANT BENNADI,
AGE: 45 YEARS, OCC. HOUSEHOLD WORK,
R/O. SAVADATTI, TQ. RAIBAG
DIST. BELGAUM-591317.
3. SMT. SHRIDEVI S/O. LAGAMANNA HUCHANNAVAR,
Digitally
AGE: 24 YEARS, OCC. HOUSEHOLD WORK
signed by
VISHAL
VISHAL
NINGAPPA R/O. YADAGUD, TQ. HUKKERI,
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.11.14
DIST. BELGAUM-591309.
16:56:54
+0530
4. KUMAR SATISH S/O. SHRIKANT BENNADI,
AGE: 17 YEARS, OCC. STUDENT,
R/O. SAVADATTI, TQ. RAIBAG
DIST. BELGAUM-591317.
5. KUMARI DEVAKI D/O. SHRIKANT BENNADI,
AGE: 16 YEARS, OCC. STUDENT,
R/O. SAVADATTI, TQ. RAIBAG,
DIST.BELGAUM-591317.
6. KUMARI JANAKI D/O. SHRIKANT BENNADI,
AGE: 15 YEARS, OCC. STUDENT,
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NC: 2024:KHC-D:16411
RSA No. 100442 of 2014
R/O. SAVADATTI, TQ. RAIBAG,
DIST. BELGAUM-591317.
7. KUMAR SURAJ S/O. SHRIKANT BENNADI,
AGE: 11 YEARS, OCC. STUDENT,
R/O. SAVADATTI, TQ. RAIBAG,
DIST. BELGAUM-591317.
...APPELLANTS
(BY SRI. SANTOSH S HATTIKATAGI, ADVOCATE)
AND:
1. SMT. SUNANDA W/O. DATTARAY WALAKE,
AGE: 27 YEARS, OCC. HOUSEHOLD WORK,
R/O. PARAMANANDAWADI, TQ. RAIBAG,
DIST. BELGAUM-591317.
2. SMT. BHARTI W/O. BABU WALAKE,
AGE: 26 YEARS, OCC. HOUSEHOLD WORK,
R/O. PARAMANANDAWADI, TQ. RAIBAG,
DIST. BELGAUM-591317.
3. SMT. SHIRMANTI W/O. SHRIKANT BENNADI,
AGE: 45 YEARS, OCC. HOUSEHOLD WORK,
R/O. PARAMANANDAWADI, TQ. RAIBAG,
DIST. BELGAUM-591317.
4. SHRI ANNAPPA S/O. SATAPPA BENNADI,
AGE: 73 YEARS, OCC. AGRICULTURE,
R/O. SAVADATTI, TQ. RAIBAG,
DIST. BELGAUM-591317.
5. SMT. HOUSAWWA W/O. BHIMAPPA GINDE,
AGE: 75 YEARS, OCC. HOUSEHOLD WORK,
R/O. MIRAJ, KUPAWAD ROAD, MIRAJ,
TQ. MIRAJ, DIST. KOLHAPUR,
MAHARASHTRA-400010.
6. SMT. CHAMPAWWA W/O. GURUPAD WALAKAE
AGE: 71 YEARS, OCC. HOUSEHOLD WORK,
R/O. PARAMANANDAWADI, TQ. RAIBAG,
DIST. BELGAUM-591317.
7. SMT. SONAWWA W/O. VEERUPAXI MIRJE,
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NC: 2024:KHC-D:16411
RSA No. 100442 of 2014
AGE: 68 YEARS, OCC. HOUSEHOLD WORK,
R/O. SAVADATTI, TQ. RAIBAG,
DIST. BELGAUM-591317.
8. SMT. SEVANTI W/O. SHANKAR TINGORE,
AGE: 55 YEARS, OCC. HOUSEHOLD WORK,
R/O. SAVADATTI, TQ. RAIBAG,
DIST. BELGAUM-591317.
9. SMT. PARAWWA W/O. SHETAGOUDA PATIL,
AGE: 53 YEARS, OCC. HOUSEHOLD WORK,
R/O. PARAMANANDAWADI, TQ. RAIBAG,
DIST. BELGAUM-591317.
10. SHRI BAHUBALI S/O. PARAKASH HANJE,
AGE: 28 YEARS, OCC. AGRICULTURE
R/O. SAVADATTI, TQ. RAIBAG,
DIST. BELGAUM-591317.
11. SHRI BHARAT S/O. PARAKASH HANJE,
AGE: 27 YEARS, OCC. HOUSEHOLD WORK,
R/O. SAVADATTI, TQ. RAIBAG,
DIST. BELGAUM-591317.
... RESPONDENTS
(BY SRI. SHRIHASH A NEELOPANT, ADVOCATE FOR R1 TO R3;
R4 TO R6 AND R9 TO R11 ARE NOTICE SERVED;
R7 AND R8 STANDS ABATED)W
THIS RSA IS FILED U/S.100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 05.12.2013 PASSED IN
R.A.NO.41/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC., RAIBAG, DISMISSING THE APPEAL FILED AGAINST THE
JUDGMENT AND DECREE DATED 03.08.2009 AND THE DECREE
PASSED IN O.S.NO.20/2006 ON THE FILE OF THE ADDL. CIVIL
JUDGE (JR.DN.) RAIBAG, DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION AND SUCH OTHER
RELIEFS.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC-D:16411
RSA No. 100442 of 2014
ORAL JUDGMENT
(PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA)
Against the concurrent findings of facts recorded by
the Courts below, defendant Nos.1, 10 to 15 are before
this Court in this regular second appeal.
2. Heard the learned counsel appearing for the
appellants and learned counsel appearing for the
respondents.
3. Undisputed fact is that the suit properties are
the ancestral joint family properties of the plaintiffs and
defendants. The relationship between the parties is also
not in dispute. The family genealogical tree is as under:
(Satappa Dhulapa Bennadi)
Expired on 26-8-1997
(Dundawwa)
Pre-deceased to her husband
Housawwa Annappa Champawwa Shrikant Parawwa
(Deft.3) (Deft.2) (Deft.4) (Deft.1) (Deft.7)
Sonawwa Sevanti
(Deft.5) (Deft.6)
Shrimanti Mallappa
(Plff.3) Expired on
06.10.2001
Issueless
Sunanda Bharati
(Plff.1) (Plff.2)
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2. The plaintiffs are wife and children of Shrikant-
defendant No.1. Defendant Nos.1 to 7 are the children of
one Satteppa Dhulappa Bannadi. The case of the plaintiffs
is that defendant Nos.1 and 2 without any legal necessity
have sold VPC.Nos. 234 and 241 in favor of defendant
Nos.8 and 9 through a registered sale dead on 28.12.2005
and the sale executed by defendant Nos.1 and 2, is not
binding on the plaintiffs. Defendant Nos.1 and 2 averred
that the family had incurred certain debts from a Society,
and for repayment of the said loan, defendant No.1 sold
the house property to defendant Nos.8 and 9.
3. The trial Court based on the pleadings framed
the necessary issues, in order to substantiate their claim
the 3rd plaintiff examined herself as PW1 and marked
documents at Exs.P1 to P13. On the other hand, defendant
No.1 examined himself as DW1, three witnesses as DW2
to DW4, defendant No.8 was examined as DW5 and
marked documents at Exs.D1 to D8. The trial court based
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on the pleadings oral and documentary evidence arrived at
a conclusion that:
(i) The plaintiffs have proved that the suit schedule
properties are the ancestral joint family properties
of plaintiffs and defendants 1 to 7.
(ii) The defendant Nos.1, 2, 6, 8 and 9 failed to prove
that defendant No.1 sold the suit house properties
for their legal and family necessity to defendant
Nos.8 and 9.
4. The trial Court by the judgment and decree
arrived at a conclusion that the plaintiffs are entitled for
1/28th share each in 1/7th share of defendant No.1. Feeling
aggrieved, defendant No.1 and 10 to 15 preferred appeal
before the First Appellate Court. The First Appellate Court,
while appreciating the entire oral and documentary
evidence independently affirmed the judgment and decree
of the trial Court. Aggrieved, the said defendants are
before this Court in the second appeal.
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5. The case of the plaintiffs is that, suit houses are
the ancestral joint family properties and the defendants 1
and 2 without any legal necessity sold the suit houses to
defendant Nos.8 and 9, defendants Nos.1 and 2 raised
plea that the suit houses are their self acquired properties,
having constructed the houses after the death of satteppa.
The plaintiffs in order to prove that the suit houses are the
ancestral properties produced Ex.P.9 indicating the name
of satteppa and after his death the name of defendants
Nos.1 and 2 were entered, and plea of defendants that
suit houses were sold for legal necessities, established that
house properties are the ancestral properties. The burden
is on the defendants to prove that the suit houses are sold
for legal necessity, Ex.D6 to D8 showing the loans paid on
11.12.2005 and 12.12.2005, mere production of these
documents do not establish that there was legal necessity.
It is also relevant to state here that defendant No.8 nor
defendant No.9 who are the purchasers have preferred
appeal against the granting of share to the plaintiffs by the
trial Court, the challenge was only by the other
NC: 2024:KHC-D:16411
defendants. Burden is casted upon defendant Nos.8 and 9
to prove that for the family necessity defendant Nos.1 and
2 have sold the property, other than the self-serving
statement the defendants failed to prove that there was an
alienation made by defendant Nos.1 and 2 for their legal
necessity. The legal necessity which is an ingredient to sell
the joint family properties, the trial Court and the First
Appellate Court considering the entire oral and
documentary evidence arrived at a conclusion that
defendants have failed to establish any legal necessity to
sell the suit houses, the plaintiffs are entitled for share in
the suit properties in 1/7th share of defendant No.1. The
manner in which the Courts below have assessed the
entire oral and documentary evidence, this Court is of the
considered view that the same does not warrant any
interference under Section 100 CPC and accordingly, this
Court pass the following:
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ORDER
(i) The regular second appeal is hereby
dismissed.
(i) The judgment and decree of the Courts below
stands confirmed.
Sd/-
(JUSTICE K.S.HEMALEKHA)
RH
