Karnataka High Court
Smt.Renuka W/O Somnath Sambrekar vs Sri.Somanath S/O Hanumant Sambrekar on 19 November, 2024
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RFA No. 100597 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 19TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO.100597 OF 2019 (PAR/POS-)
BETWEEN:
1. SMT. RENUKA
W/O. SOMNATH SAMBREKAR,
AGE: 51 YEARS,
OCC: HOUSEHOLD,
R/O: TARIHAL,
TQ & DIST: BELAGAVI-5960001.
2. MISS. MANDIRA
D/O. SOMNATH SAMBREKAR,
AFTER MARRIAGE SRI. LAXMI KEDARI NAGAROLI,
AGE: 31 YEARS,
OCC: HOUSEHOLD,
NOW R/O: BASARAKATTI,
ASHPAK
TQ & DIST: BELAGAVI-590001.
KASHIMSA
MALAGALADINNI
3. KUMAR MANOHAR
S/O. SOMNATH SAMBREKAR,
AGE: 28 YEARS,
OCC: AGRICULTURE,
Location:
HIGH R/O: TARIHAL,
COURT OF TQ & DIST: BELAGAVI-5960001.
KARNATAKA
4. MISS. MAMATA
D/O. SOMANATH SAMBREKAR,
AGE:26 YEARS,
OCC: HOUSEHOLD,
R/O: TARIHAL,
TQ & DIST: BELAGAVI-5960001.
...APPELLANTS
(BY SRI. B. S. KAMATE, ADVOCATE)
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RFA No. 100597 of 2019
AND:
1. SRI. SOMANATH
S/O. HANUMANT SHAMBU SAMBREKAR SAMBREKAR,
AGE: 54 YEARS,
OCC: AGRICULTURE,
R/O: TARIHAL,
TQ & DIST: BELAGAVI-5960001.
2. SRI. ADIVEPPA
S/O. HANUMANT SHAMBU SAMBREKAR SAMBREKAR,
AGE:62 YEARS,
OCC: AGRICULTURE,
R/O: TARIHAL,
TQ & DIST: BELAGAVI-5960001.
3. PRAKASH S/O. DURAGAPPA JAGNUR,
AGE: 54 YEARS,
OCC: BUSINESS,
R/O: PLOT 1089 SECTOR NO.6/1,
SRI ANGAR, BELAGAVI-590001.
(NOTE: SMT. KASHAVVA WD/O HANUMANT SHAMBU
SAMBREKAR
SAMBREKAR IS DEAD IN O.S. PROCEEDIGNS
AND DELETED AS PER AMENDED PLAINT)
...RESPONDENTS
(BY SRI. CHETAN MUNNOLI, ADVOCATE FOR C/R-3;
R1 AND R2 ARE SERVED BUT UNREPRESENTED)
RFA FILED UNDER SEC. 96 OF CPC., PRAYING TO SET ASIDE
THE IMPUGNED JUDGMENT AND DECREE DATED 30.08.2019 PASSED
BY THE III ADDL. SENIOR CIVIL JUDGE AND CJM., BELAGAVI IN
O.S.NO.72/2013 AND THE SUIT O.S.NO.72/2013 OF THE PLAINTIFFS
MAY KINDLY BE DECREED BY ALLOWING THIS REGULAR FIRST
APPEAL WITH COST IN THE INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RFA No. 100597 of 2019
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
This appeal is against a decree dismissing the suit for
partition and declaration to the effect that the sale deed
dated 02.04.2008 executed by defendants No.1 and 2 in
favour of defendant No.4 is null and void and not binding on
the plaintiffs. The trial Court did not accept the contention of
the plaintiffs. Hence, the plaintiffs are before this Court.
2. The admitted genealogy is as under:
Hanumant Shambu Sambrekar Shambu Sambrekar
(Dead)
=Kashavva (wife)-Deft.1.
Adiveppa (Deft.3) Somanath (Deft. 2)
= Renuka (Wife)
(Plt.1)
Mandira Manohar Mamata
(Plf.2) (Plt.3) (Plt.3)
3. One Hanumant Shambu Sambrekar Shambu
Sambrekar was the propositus. His wife is Kashavva. The
propositus Hanumant Shambu Sambrekar Shambu
Sambrekar died in the year 2001 leaving behind his wife
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Kashavva and two sons Adiveppa and Somnath as class-I
heirs.
4. The suit is filed for partition in respect of 'A'
schedule property bearing Sy.No.88 measuring 9-Acre 26-
Guntas in Kamkaratti village, Tq and Dist: Belagavi and 'B'
schedule property comprising two residential houses bearing
VPC Nos.205 and 430/1 in Tarihal village. On 05.04.1972,
the Hanumant Shambu Sambrekar along with two persons
namely Irappa Parashuram Kolekoppa and Bheemu Mallappa
Badaskar purchased the property bearing Sy.No.88. The
total extent of the said land was 9-Acres 26-Guntas.
Thereafter, there was a partition among those three
purchasers and the property measuring 03-Acres 01-Gunta
of the land was allotted to the share of Hanumant Shambu
Sambrekar. The mode of acquisition of 'B' schedule property
is not forthcoming in the plaint.
5. The propositus Hanumant Shambu Sambrekar
died in the year 2001 as already noticed. Thus, his property
would devolve under Section 8 of the Hindu Succession Act,
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1956 (for short 'Act of 1956') in favour of his two sons and
wife each inhering 1/3rd share.
6. On 02.04.2008, the wife of Hanumanth, who is
defendant No.1, and son of Hanumanth who is arrayed as
defendant No.2 sold 1-Acre 20-guntas of land in Sy.No.88 in
favour of defendant No.4.
7. The suit is filed by wife and children of defendant
No.2-Somnath claiming share in the properties on the
premise that children of Somnath acquired right over the
property.
8. The suit was contested by the purchaser.
Defendants No.2 and 3, the children of propositus Hanumant
Shambu Sambrekar and his wife Kashavva-defendant No.1
did not contest the suit.
9. Defendant No.4 took a contention that the
property being the self-acquired property of Hanumant
Shambu Sambrekar and his three class-I heirs having
inherited the property, during the lifetime of those class-I
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heirs, the plaintiffs do not succeed to the property. Thus,
they prayed for dismissal of suit.
10. The Trial Court framed issue based on the
pleadings and has concluded that the suit property is not
available for partition as it is not the ancestral joint family
property. The Trial Court has also concluded that the sale
deed dated 02.04.2008 is not null and void. Issue No.4
relating to the defence of bonafide purchase claimed by
defendant No.4 is held against defendant No.4 on the
premise that defendant No.4 has purchased only the
undivided share.
11. Aggrieved by the aforementioned judgment and
decree, the plaintiffs are in appeal.
12. Sri.B.S.Kamate, the learned counsel appearing for
the plaintiffs/appellants would contend that the property
being the ancestral property inherited after the demise of
Hanumant Shambu Sambrekar, the Trial Court could not
have dismissed the suit. He would also contend that the
relationship and genealogy furnished is not disputed. Hence,
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it is very much established that the property in 'A' schedule
property is the ancestral property and thus prayed for decree
of partition on the premise that defendant No.2 could not
have sold the entire property which is inherited by plaintiffs
No.2 to 4 because of the reason of birth in the family.
13. It is also urged that issue No.4 relating to the
bonafide purchase is held against defendant No.4 and
defendant No.4 being the outsider could not have purchased
the property of defendants No.1 and 2 when there is no
partition between defendants No.1, 2 and 3. He would also
contend that as far as the item No.1 and 2 in 'A' schedule
property is concerned, the properties being the ancestral
properties, the Trial Court could not have dismissed the suit.
Thus, he would urge that the appeal be allowed and the suit
be decreed as prayed for.
14. Learned counsel appearing for respondent
No.3/defendant No.4 would contend that admittedly the
property was purchased by Hanumant Shambu Sambrekar
along with two other persons in the year 1972. The three
purchasers effected a partition among themselves and 3
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acres 1 gunta is allotted to the share of Hanumant Shambu
Sambrekar. After his death in the year 2001, the property is
jointly inherited by his two sons namely Adiveppa and
Somanath and the wife of Hanumant Shambu Sambrekar as
Class-I heirs under Section 8 of the Act of 1956. When such
property is inherited under Section 8 of the Act of 1956, the
children of surviving Class-I heirs, do not acquire right in the
property during the life time of Class-I heirs, as such the
plaintiffs who claim share under defendant No.2 cannot
maintain a suit for partition. Thus, he would contend that the
Trial Court has rightly rejected the claim of the plaintiffs.
15. It is also his further contention that as far as 'B'
schedule property is concerned, there is nothing on record to
show that those properties are ancestral properties and thus
the Trial Court is justified in dismissing the suit.
16. As far as the item No.4 property is concerned
learned counsel Sri.Chethan Munnoli, the learned counsel for
respondent No.3, would urge that defendant No.4 has
purchased the property from defendants No.1 and 3,
defendant No.3 has not objected to the same. As such the
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Trial Court could not have held that defendant No.4 is not
the bonafide purchaser.
17. This Court has considered the contentions raised
at the bar and perused the records. The following points
would arise for consideration:
(a) Whether the Trial Court is justified in
dismissing the suit on the premise that the
plaintiffs do not acquire any right in the
property by reason of birth in the family?
(b) Whether the Trial Court is justified in holding
that defendant No.4 is not the bonafide
purchaser of the suit property at item No.1
property?
18. Admittedly, the plaint averments would indicate
that item No.1 property was purchased in the year 1972 by
Hanumant Shambu Sambrekar along with two other persons.
Thereafter, there was a partition among three purchasers. In
the said partition 3 acres 1 gunta was allotted to the share of
Hanumant Shambu Sambrekar. Thus, this property is self-
acquired property of Hanumant Shambu Sambrekar and it is
not pleaded by the plaintiffs that Hanumant Shambu
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Sambrekar acquired this property from the ancestral income.
After the death of Hanumant Shambu Sambrekar, Section 8
of the Act of 1956 would come into operation and the
property would devolve upon the Class-I heirs of Hanumant
Shambu Sambrekar, namely his two sons and his wife. Thus,
each of them is entitled to 1/3rd undivided share.
19. The suit is filed by the children of one of the sons
of Hanumant Shambu Sambrekar. Since the children of
person who succeed to the property under Section 8 of the
Act of 1956, do not acquire right in the property by reason of
birth in the family as long as their father is alive. This is a
departure from the earlier Shastric Hindu Law, where the
property would be acquired by the reason of birth in the
family. This departure is noticed under Section 8 read with
Section 4 of the Act of 1956. Hence, plaintiffs No.2 to 4 will
not acquire right in the property by reason of birth in the
family as their father who acquired the property under
Section 8 of the Act of 1956 is still alive. Hence, suit in
respect of item No.1 is not maintainable.
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20. As far as issue No.4 is concerned, it is noticed
that defendant No.4 has taken a stand that he is the
bonafide purchaser. Said defence is not available. However,
the sale deed is not invalid. He has purchased the property
in the year 2008 from two persons who are the joint owners
along the defendant No.3. Law in this regard is well-settled.
In case, a person purchases the undivided share, remedy is
to file a suit for partition. Thus, defendant No.4 has to file a
suit for partition against defendant No.3- Adiveppa.
21. As far as the contention relating to 'B' Schedule
properties is concerned, it is noticed that though plaintiffs
have taken a stand that the said properties were the
properties standing in the name of Hanumant Shambu
Sambrekar, it is not forthcoming as to whether the
properties were inherited by Hanumant Shambu Sambrekar.
There is no proper pleading and evidence in this regard by
both sides.
22. For this reason, this Court is of the view that the
matter is to be remitted to the Trial Court to consider the
claim of the plaintiffs in respect of schedule 'B' properties by
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providing opportunity to both sides to lead evidence in this
behalf.
23. Hence, the following:
ORDER
(i) Appeal is allowed in-part.
(ii) The judgment and decree dated 30.08.2019
in O.S.No.72/2013 on the file of III Additional
Senior Civil Judge & CJM, Belagavi are set
aside in respect of 'B' schedule property.
(iii) The suit is dismissed in respect of 'A'
schedule property.
(iv) The matter is remitted to the Trial Court to
consider the case afresh in respect of 'B'
schedule properties and the parties are at
liberty to lead evidence as to the nature of 'B'
schedule property.
(v) In the proceedings concerning 'B' schedule
properties, defendant No.4 is not a necessary
party.
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(vi) Nothing is expressed on the merits of rival
claim of both the parties over the 'B' schedule
properties.
(vii) No order as to costs.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
AM para 1-4
GVP para 5 to end
