Karnataka High Court
Smt.Rudramma W/O Late K. Siddappa vs Smt.Kunta Rudramma W/O S. Thimmappa on 13 November, 2024
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RFA No. 100190 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 100190 OF 2018 (PAR-)
BETWEEN:
1. SMT. RUDRAMMA W/O. LATE K. SIDDAPPA,
AGE ABOUT: 55 YEARS,
OCC: AGRICULTURIST,
R/O: NADUVALAHALLI VILLAGE,
GANDABOMMANAHALLI VILLAGE POST,
KUDLIGI TALUKA-583135,
DIST: BALLARI.
2. SAKSHAPPA S/O. LATE K. SIDDAPPA,
AGE: 35 YEARS,
OCC: AGRICULTURIST,
R/O: NADUVALAHALLI VILLAGE,
GANDABOMMANAHALLI VILLAGE POST,
KUDLIGI TALUKA - 583135,
DIST: BALLARI.
ASHPAK
KASHIMSA
MALAGALADINNI
3. NAGARATNA W/O. BHEEMARAJ
AGE: 33 YEARS, OCC: AGRICULTURIST,
R/O: TIPPAREDDY HALLI VILLAGE,
CHALLEKERI TALUKA-577522,
Location:
HIGH DIST: CHITRADURGA.
COURT OF
KARNATAKA
4. SMT. RENUKA W/O P. KUMARSWAMY,
AGE: 31 YEARS, OCC: AGRICULTURIST,
R/O: NADUVALAHALLI VILLAGE,
GANDABOMMANAHALLI VILLAGE POST,
KUDLIGI TALUKA-583135,
DIST: BALLARI.
5. BHARATHI D/O. LATE K. SIDDAPPA,
AGE ABOUT: 29 YEARS, OCC: AGRICULTURIST,
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RFA No. 100190 of 2018
R/O: NADUVALAHALLI VILLAGE,
GANDABOMMANAHALLI VILLAGE POST,
KUDLIGI TALUKA-583135,
DIST: BALLARI.
6. SIDDAPPA S/O. LATE K. SIDDAPPA,
AGE: 27 YEARS,
OCC: AGRICULTURIST,
R/O: NADUVALAHALLI VILLAGE,
GANDABOMMANAHALLI VILLAGE POST,
KUDLIGI TALUKA-583135,
DIST: BALLARI.
...APPELLANTS
(BY SRI. S. L. MATTI, ADVOCATE)
AND:
1. SMT.KUNTA RUDRAMMA
W/O S. THIMMAPPA, AGE : 55 YEARS,
OCC: AGRICULTURIST,
R/O: GANDUVALAHALLI VILLAGE,
GANDABOMMANAHALLI VILLAGE POST,
KUDLIGI TALUKA-583135,
DIST: BALLARI.
2. SMT.GUNDAMMA W/O S. THIMMAPPA,
AGE ABOUT: 60 YEARS,
OCC: AGRICULTURIST,
R/O: KAMATHUR VILLAGE,
DEVAGIRI POST,
SONDUR TALUKA-583119,
DIST: BALLARI.
3. A. BYRAPPA S/O. LATE ADI BASAPPA,
AGE: 75 YEARS,
OCC: AGRICULTURIST,
R/O: YAKKEGUNDI VILLAGE,
GANDABOMMANAHALLI VILLAGE POST,
KUDLIGI TALUKA-583135,
DIST: BALLARI.
...RESPONDENTS
(BY SRI. HANUMATHAREDDY SAHUKAR, ADVOCATE FOR R1;
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RFA No. 100190 of 2018
NOTICE TO R2 IS HELD SUFFICIENT;
R3-SERVED BUT UNREPRESENTED)
THIS RFA FILED UNDER SEC. 96 OF CPC., GAINST THE
JUDGMENT AND DECREE DTD:05.04.2018 PASSED IN
O.S.NO.96/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE,
AND JMFC, KUDLIGI, DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH
HEGDE
ORAL JUDGMENT
This appeal is by defendants No.2 to 7 in a suit for
partition. The suit for partition is decreed awarding 1/3rd
share to each of the plaintiffs in the suit schedule properties.
Item No.4 property i.e., Sy.No.78 measuring 2 acres 61
guntas was sold by defendant No.2 under the registered sale
deed dated 03.09.1997. The purchaser who is defendant
No.8 filed a counterclaim praying to award a share to his
vendor in the aforementioned property sold to defendant
No.8. The suit is decreed and so also the counterclaim.
2. The appellants are before this Court challenging
the decree for partition and also challenging the decree
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passed in the counter claim. The genealogy furnished by the
plaintiffs is as under:
Sakshappa s/o Sakshappa (dead)
Earalingamma (wife, dead)
Gundamma (D-1) Siddappa (dead) Kunta Rudramma (ptf)
Sakshappa Nagarathna Renuka Bharathi Siddappa
(D-3) (D-4) (D-5) (D-6) (D-7)
3. One Sakshappa was the propositus and he had a
wife by name Earalingamma. Plaintiffs claim that the couple
had two daughters namely plaintiff No.1-Kunta Rudramma
and defendant No.1-Gundamma and it is the further case
that the propositus-Sakshappa had a son by name Siddappa
and Siddappa had died by the time the suit was filed.
Rudramma-the wife of Siddappa is arrayed as defendant
No.2 and children of Siddappa and Rudramma are arrayed as
defendants No.3 to 7. Since the suit was filed after the sale
of one of the suit properties, the purchaser is arrayed as
defendant No.8.
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4. Defendants No.2 to 7 contested the suit disputing
the claim of plaintiff No.1 and defendant No.1 in so far as
their relationship as daughters of Sakshappa and
Earalingamma. Defendants No.2 to 7 also took a contention
that item No.4 property was sold for family necessity. Since
the property was sold before the amendment to Section 6 of
the Hindu Succession Act, 1956 (for short 'Act of 1956'), the
plaintiff cannot claim any equal share in the property.
5. The Trial Court framed issues relating to the
status of the plaintiff and defendant No.1 as the daughters of
propositus-Sakshappa and the Trial Court also framed the
issue on the counterclaim filed by defendant No.8 claimed to
be the lawful purchaser of item No.4 property. Since
defendants No.2 to 7 raised a contention that the plaintiff
and defendant No.1 are the two wives of one Timmappa and
issues also framed in this behalf.
6. The Trial Court held that the plaintiff established
her claim that the plaintiff and defendant No.1 are the
daughters of late Sakshappa and sisters of late Siddappa.
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7. The Trial Court also held that the suit properties
are the ancestral joint family properties and as far as the
claim made in the counterclaim is concerned, the Trial court
held that defendant No.8-the purchaser is entitled to claim a
share in the property allotted to his vendor and vendor is to
be allotted share in the property sold to defendant No.8.
8. Learned counsel appearing for the appellants
would contend that the Trial Court committed an error in
holding that the plaintiff and defendant No.1 are the
daughters of late Sakshappa. He would also urge that there
are no materials are produced to establish the said
contention and in absence of the valid documentary evidence
to establish the contention, the suit could not have been
decreed accepting the claim of the plaintiff that she is the
daughter of late Sakshappa.
9. He would also contend that item No.4 property is
sold for the family necessity and the same is admitted by the
plaintiff in the cross-examination and defendant No.2-Kartha
has alienated the property for the family necessity and the
suit could not have been decreed in respect of item No.4
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property. He would also contend that as the property was
sold before the amendment of Section 6 of the Act of 1956,
the daughters cannot claim equal share in the property sold
before the amendment which came into effect on
20.12.2004.
10. Sri. Hanumanthareddy Sahukar, learned counsel
appearing for the plaintiff would contend that the relationship
of the parties is very much established as defendant No.3-
the son of defendant No.2 had filed a complaint against the
plaintiff stating that she is the sister of his father Siddappa
and the said case is registered in C.C.No.29/2016 on the file
of JMFC, Kudligi. In addition to that, it is also contended that
genealogy tree is produced in support of the claim.
11. The following points arise for consideration:
(a) Whether the appellants able to establish that
plaintiff No.1 and defendant No.1 are not the
daughters of Sakshappa?
(b) Whether the item No.4 property is sold for legal
necessity?
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(c) Whether the sale of item No.4 property in the
year 1997 precludes the daughters from
claiming an equal share in the property?'
12. This Court has perused the records and it is
noticed that Ex.P.12 is the genealogy tree issued by the
Village Accountant. From the said tree it is apparent that the
plaintiff, defendant No.1 and husband of defendant No.2-
late Siddappa are the three children born to Sakshappa and
Earalingamma.
13. Though Sri.S.L.Matti, the learned counsel would
contend that in the genealogy tree produced by the
appellants, the names of the plaintiff and defendant No.1 are
not found, what is relevant is the document marked at
Ex.D.13 i.e., the charge sheet and the complaint marked at
Ex.P.13(a). This is the complaint filed by defendant No.3 who
is the son of defendant No.1. In the said complaint it is
admitted that the plaintiff is the sister of Siddappa. Said
complaint would demonstrate that the genealogy tree
produced by the appellants is incorrect. Ex.P.13 is the charge
sheet filed in the complaint filed by defendant No.3 against
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the plaintiff. Based on this, charge sheet has been filed.
From the said document, it is apparent that there is a clear
admission on the part of defendant No.3 stating that the
plaintiff is the daughter of late Sakshappa. The Trial Court
has noticed this fact and has rightly concluded that the
plaintiff has established the relationship.
14. It is relevant to note that the documents
produced by the plaintiff, particularly at Ex. P13 and P.13(a)
are not seriously disputed in the cross-examination. There is
no evidence to disbelieve the contents of Ex.P.13 and
P.13(a). Further defendant No.2 in her cross-examination
has admitted that the complaint is filed by defendant No.3
her son against the plaintiff. Since the contents of the
complaint are not disputed, the Trial Court has rightly
concluded that the plaintiff and defendant No.1 are the
daughters of late Sakshappa. The aforementioned
documents at Ex.P.13 and P.13(a) would also corroborate
the genealogy tree produced by the plaintiff which is marked
at Ex.P.12.
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15. For the aforementioned reasons, this Court is of
the view that the finding of the Trial Court that the plaintiff
has established her relationship as well as the relationship of
defendant No.1 with late Sakshappa and Earalingamma has
to be upheld.
16. As far as the 2nd point is concerned, it is urged by
Sri.S.L.Matti, the learned counsel appearing for the
appellants, that defendant No.2 acting as a Kartha has
alienated the property for family necessity. Admittedly, when
the property was sold in the year 1997 both plaintiff and
defendant No.1 were married. Hence, they belonged to
different families and they were not the members of the
family of defendant No.2. This being the position, it cannot
be accepted that the property is sold for legal necessity and
even if it is assumed that the said property is sold for the
legal necessity of the family of defendant No.2, the said sale
cannot be construed as a sale for the benefit of family of
plaintiff and defendant No.1 who are married and residing in
a different family. Hence, the contention that the entire sale
transaction is to be upheld in view of the sale of the property
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by defendant No.2 for the family necessity cannot be
accepted.
17. The next point for consideration is whether the
sale of the property in the year 1997 before the amendment
of Section 6 of the Act of 1956 precludes the plaintiff from
claiming an equal share in the properties.
18. It is relevant to note that in the plaint itself, the
plaintiff has made a statement that the properties are the
ancestral properties in the hands of propositus late
Sakshappa. And it is also forthcoming from Ex.P6
ME No.28/18-19 that Sakshappa is reported to have died 20
years before certification of mutation entry in the year 1989
which means Sakhshappa died in the year 1969. Since it is
admitted in the plaint itself that the properties in the hands
of Sakshappa were the ancestral properties and Sakshappa
having died in the year 1969, the property would devolve
upon Siddappa under Section 6 of the Act of 1956 as it stood
then in the year 1969. Since it is a coparcenary property,
there has to be a notional partition at the time of the death
of Sakshappa. In such an event, Sakshappa will have 1/3rd
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share, his wife Earalingamma will have 1/3rd share and
Siddappa will have 1/3rd share. In the 1/3rd share of
Sakshappa two daughters of Sakhshappa namely plaintiff
and defendant No.1 and his son Siddappa and wife of
Sakshappa- Earalingamma will also acquire equal share.
19. Since Sakshappa died in the year 1969 and his
wife predeceased him in the notional partition to be effected
immediately before the death of Sakshappa. Sakshappa will
have ½ share and his son Siddappa will have ½ share. Again
½ share of Sakshappa is divided among three children
namely two daughters, plaintiff and defendant No.1 and the
son- Siddappa. Thus, the plaintiff will acquire 1/6th share in
item No.4 property. Defendant No.1 will acquire 1/6th share
in the item No.4 property. Siddappa now represented by
defendants No. 2 to 7 will have 4/6th share in the item No.4
property. As far as the remaining properties are concerned,
since there is no alienation or there is no defence of previous
partition, plaintiff, defendant No.1 and defendants No.2 to 7
together will have 1/3rd share each.
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20. To the said extent, the judgment and decree
passed by the Trial Court granting equal share in item No.4
property to the plaintiff, defendant No.4 has to be set aside.
As far as the claim of defendant No.8 purchaser is
concerned, the purchaser will acquire the share of
defendants No.2 to 7 in item No.4 property.
21. It is noticed that the suit was filed in the year
2013. Defendants No.2 to 7 have taken a defence that the
plaintiffs are not the legal heirs of late Sakshappa.
Defendants No.2 to 7 asserted their exclusive possession
over the property. Thus, it is evident that whatever profit
derived from the suit properties excluding the property which
is sold is utilized by defendants No.2 to 7. However, plaintiffs
have not claimed mesne profit, consequently, the Trial Court
has not granted mesne profit.
22. Learned counsel for the respondents would
contend that this Court in the exercise of power under Order
41 Rule 33 may grant a decree for mesne profits in favour of
the plaintiffs, in view of the contentions raised by defendants
No.2 to 7, disputed the legitimate relationship of plaintiff and
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defendant No.1 with their father of Sakshappa, which
evidently will prove that defendants No.2 to 7 have enjoyed
the usufructs.
23. Learned counsel appearing for respondents No.2
to 7 would contend that respondents No.2 to 7 would
cooperate in effecting the division of the family properties in
terms of the decree passed by this Court.
24. Considering the peculiar facts of the case, this
Court is of the view that the decree for mesne profit can be
made contingent.
25. The plaintiff and defendant No.1 can seek mesne
profits only in case the division of the properties and delivery
of possession of respective shares do not take place within 8
months from the date of appearance before the Trial Court,
owing to the non co-operation of defendants No.2 to 7.
26. To ensure that the plaintiff and defendant No. 8
get their due share, as early as possible, the parties to the
suit, shall also submit a proposal for the division of the
properties and the trial Court shall endeavour to complete
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the process within 8 months from the receipt of the copy of
this Order. In case the division proposed by the parties is
not acceptable, the Court shall proceed to decide the petition
in accordance with law.
27. Hence, the following:
ORDER
(i) Appeal is allowed in-part.
(ii) The judgment and decree dated 05.04.2018
in O.S.No.96/2013 on the file of Senior Civil
Judge, Kudligi are modified.
(iii) The suit of the plaintiff is decreed in part as
indicated above.
(iv) Parties shall appear before the Trial Court on
02.01.2025.
(v) On that day or any day before that the
plaintiff or any of the parties to the suit is
entitled to file a petition seeking final decree.
(vi) If the petition is filed any day before
2.1.2025, the same shall be listed on
2.1.2025 and the parties to the
proceeding/or their counsel shall accept the
notice of the petition.
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(vii) The Trial Court shall fix the date of the next
date in final decree proceeding in the
presence of the parties or their counsel.
(viii) In case, the division of the properties is not
completed within 8 months, from the date of
appearance before the Trial Court, (on
account of non co-operation by the
defendants No.2 to 7), the plaintiffs are
entitled to move an application for
ascertaining and recovery of mesne profits.
(ix) Both the parties shall co-operate for early
disposal of the final decree proceeding.
(x) The plaintiff and defendant shall not adopt
dilatory tactics in the matter to seek the
benefit of the decree for mesne profit which
is ordered in the event of a final decree
proceeding not completed within eight
months.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
GVP - para No. 8 to end
