Karnataka High Court
Beerappa S/O Gulappa Yanni vs Rangappa S/O Doddarachappa @ Rachappa ... on 21 October, 2024
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RFA No. 2185 of 2007
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF OCTOBER 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 2185 OF 2007 (PAR)
BETWEEN:
SRI. BEERAPPA S/O. GULAPPA YANNI,
AGED ABOUT 50 YEARS,
R/AT.KONNUR VILLAGE,
JAMKHANDI, DIST: BAGALKOT.
...APPELLANT
(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
AND:
1. SRI. RANGAPPA S/O. DODDARACHAPPA PATIL,
SINCE DECEASED BY HIS LRS,
1(a) SMT. YANKAWWA CLAIMING AS
W/O. RANGAPPA PATIL,
AGED ABOUT 50 YEARS,
OCC: AGRICULTURE,
R/AT HUNASIKATTI,
ASHPAK TQ: JAMKHANDI,
KASHIMSA
MALAGALADINNI DIST: BAGALKOT.
2. SRI. YALLAPPA
Location: S/O. RACHAPPA PATIL,
HIGH AGED ABOUT 40 YEARS,
COURT OF R/AT HUNASIKATTI,
KARNATAKA
TQ: JAMKHANDI,
DIST: BAGALKOTE.
3. SRI. UMESH
S/O. RACHAPPA PATIL,
AGED ABOUT 35 YEARS,
R/AT HUNASIKATTI,
TQ: JAMKHANDI,
DIST: BAGALKOTE.
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RFA No. 2185 of 2007
4. SMT. GANGAWWA
W/O. LAXMAN GOUDA,
AGED ABOUT 40 YEARS,
R/AT: KALASKOPPA VILLAGE,
TALUK AND DISTRICT BAGALKOTE.
5. SMT. TAYAWWA
W/O. SADASHIV LINGARADDI,
AGED ABOUT 35 YEARS,
R/AT SATTI VILLAGE,
TQ: ATHANI,
DIST: BELAGAVI.
6. GEETHA D/O. RACHAPPA PATIL,
AGED ABOUT 28 YEARS,
R/AT HUNASHIKATTI,
TQ: JAMKHANDI,
DIST: BAGALKOTE.
7. SMT. SHASAWWA
W/O. DODDARACHAPPA PATIL,
AGED ABOUT 60 YEARS,
R/AT HUNASIKATTI,
TQ: JAMKHANDI,
DIST: BAGALKOTE.
8. SRI. ANNAPPA
S/O. RACHAPPA BIRADARPATIL,
SINCE DECEASED BY HS LRS,
8(a) SMT. SHOBHA W/O. ANNAPPA PATIL,
AGED ABOUT 50 YEARS,
OCC: AGRICUTLURE
8(b) SMT. RAJASHREE W/O. RAMESH GALAGALI,
AGED ABOUT 28 YEARS, OCC: H/W
8(c) SRI. PRAVEEN S/O ANNAPPA PATIL,
AGED ABOUT 30 YEARS,
OCC: AGRICULTURE,
8(d) SMT. VIDYA W/O. BASAPPA GALAGALI,
AGED ABOUT 26 YEARS,
OCC: H/W
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RFA No. 2185 of 2007
8(e) SRI. PRASHANT S/O. ANNAPPA PATI.
AGED ABOUT 25 YEARS,
OCC: AGRICULTURE
ALL ARE R/AT HUNASIKATTI,
TQ: JAMKHANDI,
DIST: BAGALKOT.
9. SRI. KALLEPPA S/O. GADIGEPPA YENNI,
SINCE DECEASED BY HIS LRS,
9(a) SRI. APPANNA S/O. KALEPPA YENNI
AGED ABOUT 55 YEARS,
OCC: AGRICULTURE
9(b) SRI. KAREPPA S/O. KALEPPA YANNI
AGED ABOUT 48 YEARS,
OCC: AGRICULTURE
9(c) SRI. SOMAPPA S/O. KALEPPA YANNI,
AGED ABOUT 45 YEARS,
OCC: AGRICULTURE
9(d) SMT. LAXMIBAI W/O. RAYAPPA YANNI,
AGED ABOUT 40 YEARS,
OCC: HOUSEHOLD
9(e) SRI. DAREPPA S/O. RAYAPPA YANNI,
AGED ABOUT 20 YEARS,
OCC: HOUSEHOLD
ALL ARE R/AT HUNASIKATTI,
TQ: JAMKHANDI,
DIST: BAGALKOTE.
...RESPONDENTS
(BY SRI. SHARAD V. MAGADUM, ADVOCATE FOR R1)
--
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT
AND DECREE DT.31.8.2007 PASSED IN O.S.NO.160/99 ON THE FILE
OF THE PRL.CIVIL JUDGE (SR.DN), JAMKHANDI, DECREEING THE
SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RFA No. 2185 of 2007
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
This appeal is arising from the judgment and decree
passed in O.S.No.160/1999 on the file of the Principal Civil
Judge(Sr.Dn), Jamkhandi.
2. The suit for partition filed by the
plaintiff/respondent No.1 herein is decreed in part. The
plaintiff's claim for half share in the suit property is
rejected. On the other hand, the suit is decreed awarding
8/35 share in favor of the plaintiff, defendants No.1, 2 and
6 each are allotted 8/35 share and defendants No.3 to 5
were allotted 1/35 share each in the suit properties.
3. The relationship of the parties is not in dispute.
The plaintiff is the son of Doddarachappa. Defendants 1 to
5 are the children of Doddarachappa, defendant No.6 is
the wife of Doddarachappa, and defendants No.7 and 8
claim to be the purchasers of portion of the suit properties
from defendants No.1 to 6.
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4. The suit is filed by a person claiming to be the
next friend of plaintiff Rangappa, on the premise that
Rangappa is a person of unsound mind, and next friend
claims to be the wife of Rangappa. Her status as the wife
of Rangappa is disputed by the plaintiff in the revenue
proceedings. However, the court has come to the
conclusion that the next friend is indeed the wife of
Rangappa.
5. The defendants pleaded oral partition and it is
stated by the defendants that item No.1 and 2 properties
are allotted to the share of defendants No.1 to 6 and item
No.3 to 6 are the properties allotted to the share of the
plaintiff. However, the said contention is not accepted by
the Trial Court. The Trial Court has come to the conclusion
that there was no evidence relating to the alleged previous
partition. Accordingly, the suit is decreed by effecting a
notional partition as required under un amended Section 6
of the Hindu Succession Act, 1956.
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6. The plaintiff has not filed any appeal against the
judgment and decree. So also the daughters, who were
given notional share in their father's share, did not file any
appeal seeking equal share in the suit properties. This
appeal is filed by the purchaser during the pendency of the
suit.
7. During the pendency of the suit, the present
appellant has purchased 4 acres 20 guntas of land in the
property bearing Survey No.149/1B. It is also relevant to
note that, defendant No.8 filed RFA No.11/2008 and the
said appeal was dismissed for non-prosecution.
8. Learned counsel for the appellant and
respondents herein would jointly submit that the final
decree proceeding is concluded in FDP No.9/2008 on the
file of the Principal Senior Civil Judge Jamkhandi. It is
stated that the parties to the proceedings have taken
shares as per the division effected in the final decree
proceedings.
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9. Learned counsel for the appellant-purchaser
would submit that the name of the appellant appears in
the property records pertaining to Survey No.149/2
i.e.,149/1B (new number) to the extent of 4 acres 20
guntas. It is his further submission that, as per the final
decree proceedings, the certain properties were allotted to
the share of his vendors. According to the appellant,
appellant's vendors were allotted more than 4 acres and
20 guntas in the very survey number purchased by the
appellant.
10. This Court has considered the contentions
raised at the Bar and also perused the impugned judgment
and decree.
11. The following points would arise for
consideration:
i. Whether the appellant has made out a
case relating to the previous partition
as claimed by the defendants?
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ii. Whether the appellant is entitled to
seek partition of the 4 acres and 20
guntas purchased by him from his
vendors as the vendors are allotted
more than 4 acres 20 guntas in FDP
No.9/2008?
Re: Point No.1:
12. As far as the contention relating to the previous
partition is concerned, it is noticed from the records that
the Trial Court has come to the conclusion that the
previous partition is not established. The Trial Court also
noticed that the documents relating to family partition
were not produced before the Trial Court. On perusal of
the records, it is noticed by this Court that the said family
partition pleaded by the defendants is not established as
no evidence is forthcoming relating to said family
arrangement. It is also noticed that, all the properties
originally belonged to the propositus of the plaintiff and
defendants No.1 to 6. It is further noticed that, in the year
2009, the impugned decree was passed and by that time,
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Section 6 of the Hindu Succession Act, 1956, was
amended. However, the daughters who were granted a
lesser share did not file any appeal seeking enhancement
of their share.
13. Though the Appellate Court is not precluded
from modifying the share pursuant to the amendment,
what is required to be noticed is that the final decree is
also drawn based on the preliminary decree and the said
decree dated 10-04-2019 in FDP No.9/2008, is not
questioned by the daughters.
14. Under the circumstances, this Court does not
find any reason to interfere with the judgment and decree
passed by the Trial Court insofar as awarding 8/35 share
to the plaintiff, 8/35 share to each of the defendants No.1,
2 and 6 and 1/35 share each to defendants No.3 to 5.
Re: Point No.2:
15. Now the question is whether the present
appellant, who is the purchaser during the pendency of the
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suit, should seek partition by filing one more suit, or
should move an application before the Final Decree Court,
to allot and demarcate his 4 acres 20 guntas land from the
share of his vendors. This Court, instead of directing the
appellant, the purchaser during the pendency of the suit,
to file one more suit, would deem it appropriate to permit
the present appellant to file an application before the Final
Decree Court in FDP No.9/2008, with a prayer to
demarcate appellant's 4 acres and 20 guntas of land from
the property allotted to the share of his vendors. In the
said proceedings, on the application filed by the present
appellant, notice shall be issued to his vendors and
appellant's 4 acres 20 guntas of land in Survey No.149/1B
be carved out and final decree proceedings shall be closed
accordingly.
16. It is also made clear that the appellant is not
entitled to seek share in the property allotted to the
plaintiff and there is no need to issue notice to other
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parties to the final decree proceeding except the
appellant's vendors.
17. Accordingly, the appeal is allowed in part.
The judgment and decree passed O.S. No.160/1999 by the
Principal Civil Judge(Sr.Dn), Jamkhandi, is hereby modified
to the above said extent.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
gab
CT:ANB
