Karnataka High Court

Smt.Shivadevi vs Revanashiddayya on 21 October, 2024

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                                                       NC: 2024:KHC-D:15136
                                                  RFA No. 100244 of 2016




                            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.100244 OF 2016 (DEC/PAR)
                BETWEEN:

                SMT. SHIVADEVI
                W/O. CHANNABASAYYA
                KARAVEERAMATH @ ANNIGERI,
                AGE: ABOUT 70 YEARS,
                OCC: HOUSEHOLD WORK,
                R/O: VEERABHADRASWAMY NILAYA, 705,
                3RD BLOCK, 3RD MAIN, HMT LAYOUT,
                NAGASANDRA, BENGALURU-73.
                PIN - 560001.
                                                               ...APPELLANT

                (BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)

                AND:

ASHPAK
KASHIMSA
                1.     REVANASHIDDAYYA
MALAGALADINNI
                       S/O. CHANNAVEERAYYA HIREMATH,
                       AGE: ABOUT 84 YEARS,
                       OCC: AGRICULTURE,
                       R/O: NOOLVI, TQ: HUBBALLI
Location:
HIGH                   PIN-580001.
COURT OF
KARNATAKA
                2.     SMT. SUVARNAVVA
                       W/O. SIDDALINGAYYA HIREMATH,
                       AGE: ABOUT 74 YEARS,
                       OCC: HOUSEHOLD,
                       R/O: NOOLVI, TQ: HUBBALLI
                       PIN-580001.

                3.     RUDRAMUNI
                       S/O. SIDDALINGAYYA HIREMATH,
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                                      NC: 2024:KHC-D:15136
                                   RFA No. 100244 of 2016




      AGE: ABOUT 34 YEARS,
      OCC: AGRICULTURE,
      R/O: NOOLVI, TQ: HUBBALLI
      PIN-580001.

4.    KEDARAYYA
      S/O. CHANNAVEERAYYA HIREMATH,
      AGE: ABOUT 78 YEARS,
      OCC: AGRICULTURE,
      R/O: SHIVALLI, TQ: DHARWAD
      PIN-580001.

5.    GADIGEYYA
      S/O. CHANNAVEERAYYA HIREMATH,
      SINCE DECEASED BY HIS LRS.

5A)   SMT.VIJAYALAXMI
      W/O. GADIGAYYA HIREMATH,
      AGE: 68 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O: NOOLVI, TQ: HUBBALLI,
      PIN-580001.

5B)   ANASUYA
      D/O. GADIGAYYA HIREMATH,
      AFTER MARRIAGE ANUPAMA
      W/O. MALLAYYA HONNAPURMATH,
      AGE: 50 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O: AMARGOL,
      TQ: HUBBALLI
      PIN-580001.

5C) PUSHPA
    D/O. GADIGAYYA HIREMATH,
    AFTER MARRIAGE PUSHPA
    W/O. RUDRAMUNISWAMY GACHCHINAMATH,
    AGE: 49 YEARS,
    OCC: HOUSEHOLD WORK,
    R/O: DYAMAVVANA GUDIONI,
    HAVERI PIN-580001.
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                                 RFA No. 100244 of 2016




5D) BASAVARAJ S/O. GADIGAYYA HIREMATH,
    AGE: 44 YEARS, OCC: AGRICULTURE,
    R/O: NOOLVI, TQ: HUBBALLI.
    PIN-580001.

5E)   GOURAMMA D/O. GADIGAYYA HIREMATH,
      AFTER MARRIAGE GOURAMMA
      W/O. LINGARAJ SALIMATH,
      AGE: 41 YEARS, OCC: HOUSEHOLD WORK,
      R/O: GHANTIKERIONI,
      HUBBALLI, PIN-580001.

5F)   GANGAMMA
      D/O. GADIGAYYA HIREMATH,
      AFTER MARRIAGE SHWETHA
      W/O. MRUTHYUNJAYA CHOWKIMATH,
      AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
      R/O: SHIRAGUPPI, TQ: HUBBALLI
      PIN-580001.

5G) SAROJA D/O. GADIGAYYA HIREMATH,
    AFTER MARRIAGE PURNIMA
    W/O. SHAMBULINGAYYA MANTORMATH,
    AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
    R/O: DEVIKOPPA, TQ: KALGHATAGI
    PIN-580001.

5H) CHANNAVIRAYYASWAMY
    S/O. GADIGAYYA HIREMATH,
    AGE: 35 YEARS,
    OCC: AGRICULTURE,
    R/O: NOOLVI, TQ: HUBBALLI,
    PIN-580001.

6.    SMT.ANNAMAPURNEVVA
      W/O. SOMASHEKHARAYYA HIREMATH,
      AGE: ABOUT 74 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O: BOMMAHALLI, TQ: HANGAL,
      DIST HAVERI, PIN- 581110.
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                                   RFA No. 100244 of 2016




7.    SMT. MALLAVVA
      W/O. KEDARAYYA HIREMATH,
      AGE: ABOUT 66 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O: SHIVALLI, TQ: DHARWAD
      PIN -580001.

8.    MAHANTESH
      S/O. CHANNAVEERAYYA HIREMATH,
      AGE: ABOUT 31 YEARS,
      OCC: AGRICULTURE,
      R/O: SHIVALLI, TQ: DHARWAD
      PIN-580001.

9.    SMT.IRAMMA
      W/O. MURUGAYYA HIREMATH,
      AGE: ABOUT 41 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O: DODAWAD, TQ: BAILHONGAL
      PIN-580001.

10.   SMT.MANJULA
      W/O. VEERANAGOUDA PATIL,
      AGE: ABOUT 40 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O: TURAMARI, TQ: BAILHONGAL,
      PIN -580001.

11.   SMT.GOURAMMA
      W/O. BASAYYA PATIL,
      AGE: ABOUT 41 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O: TURAMARI, TQ: BAILHONGAL,
      DIST: BELAGAVI, PIN-580001.

12.   VINAYCHANDRA
      S/O. MAHADEV MAHENDRAKAR,
      AGE: ABOUT 41 YEARS,
      OCC: BUSINESS,
      R/O: JAWAHAR LAYOUT,
      TQ: HUBBALLI, PIN-580001.
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                                  RFA No. 100244 of 2016




13.   VISHWACHETAN FOUNDATIONS,
      REGISTERED TRUST, R/BY ITS TRUSTEE
      VINAY CHANDRA S/O. MAHADEV MAHENDRAKAR,
      AGE: 44 YEARS, OCC: BUSINESS,
      R/O: SHREE GAYATRI, 31,
      JAWAHAR LAYOUT, CHETANA COLONY,
      VIDYANAGAR, HUBBALLI, PIN-580001

14.   SHANTILAL S/O. DHANARAJ JAIN,
      AGE: ABOUT 63 YEARS,
      OCC: CHARTERED ACCOUNTANT,
      R/O: NO.87, 'DHANASHREE',
      ADARSHNAGAR, HUBBALLI
      PIN-580001

15.   SMT.TARA W/O. SHANTILAL JAIN,
      AGE: ABOUT 63 YEARS,
      OCC: BUSINESS, R/O: NO.87,
      'DHANASHREE',
      ADARSHNAGAR, HUBBALLI,
      PIN-580001.
                                          ...RESPONDENTS

(BY SRI. S V SHETTAR, ADVOCATE FOR C/R-3;
    SRI. MAHESH WADEYAR, ADVOCATE FOR R-5 (D))


      THIS RFA IS FILED UNDER SEC. 96 OF CPC., PRAYING TO
MODIFY THE JUDGMENT AND DECREE IN O.S.NO. 83/2010
DATED 18.06.2016 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE AND JMFC., HUBBALI, BY ALLOWING THIS APPEAL IN
THE INTEREST OF JUSTICE AND EQUITY.


      THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                                          RFA No. 100244 of 2016




CORAM:     THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

                        ORAL JUDGMENT

This appeal is against the decree dismissing the suit for

partition. The plaintiff-daughter is in appeal.

2. The relationship of the parties is not in dispute. One

Channaverayya was the propositus. He had four sons and

three daughters. Plaintiff - Shivadevi is one of the daughters

who has filed the suit. Two sons of Channaverayya are made

parties and wife and son of deceased son Siddalingayya are

also made as parties. In addition two daughters are made

parties and legal representatives of deceased daughter

Shankravva are also made parties.

3. Defendant No.3 contested the suit on the ground that

there is already a partition in the family when the father

Channaverayya was alive.

4. The Trial Court dismissed the suit on the premise that

partition of 1979 pleaded by defendant No.3 is established.

Being aggrieved by the dismissal of the suit, the plaintiff is in

appeal.

NC: 2024:KHC-D:15136

5. Learned counsel appearing for the plaintiff/appellant

would contend that the partition of 1979 is not evidenced in the

form of registered partition deed or a Court decree, as such,

the said oral partition cannot be accepted as a valid partition.

In the alternative, it is also submitted that assuming that

partition of 1979 is valid, two properties viz., Sy.No.430

measuring 5 acres 11 guntas and Sy.No.555 measuring 29

guntas were allotted to the share of Channaverayya and on his

demise on 06.12.1984, the plaintiff would inherit the property

as Class-I heir along with remaining children of Channaverayya.

Thus, it is urged that the suit atleast ought to have been

decreed in respect of item Nos.1 and 2 properties.

6. Learned counsel Sri Mahesh Wodeyar appearing for

the contesting respondent would contend that the Trial Court

rightly dismissed the suit as the previous partition of 1979 is

very much established. It is also urged that partition need not

be through registered partition deed or the Court decree, and

the oral partition is permissible in law and if same is

established, there is no scope of re-opening the said partition

for want of registration. It is also his contention that the

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plaintiff's suit is time barred as the father Channaverayya died

in 1984 and the suit is filed in 2010.

7. This Court has considered the contentions raised at

the bar and perused the records.

8. The following points arise for consideration:

i) Whether the trial Court is justified in holding that the partition of 1979 pleaded by defendants is established ?

ii) Whether the trial Court is justified in holding that the plaintiff, after the death of her father does not inherit the properties retained by her father in the partition of 1979 ?

9. Though, it is urged on behalf of the

plaintiff/appellant that the partition of 1979 is not valid for want

of registration or a decree effecting such partition, it is relevant

to note among Hindus the oral partition is very much

recognised and accepted by the Court. Even in the Judgment

of the Apex Court in the case of Vineeta Sharma vs Rakesh

Sharma (AIR 2020 SUPREME COURT 3717), the Apex Court

has held that oral partition if it is duly established, then same

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need not be re-opened taking shelter under Section 6 of the

Hindu Succession Act, 1956.

10. This Court has perused the records.

11. The partition of 1979 is very much established in the

form of Memorandum of Partition marked at Exs.D.13, 14 and

15 and it is also relevant to note that the said partition is very

much accepted and acted upon and mutations at ME No.2730

and 2679, are certified. The said documents are marked at

Exs.D.34 and 35. These mutations are long standing mutations

and not questioned by anyone. And it is also relevant to note

that when those mutations are certified based on the

memorandum of partition of 1979, the plaintiff did not have

any right over the properties covered by the said memorandum

of partition. This being the position, this Court is unable to

accept the contention of the plaintiff that the partition of 1979

is not established. On the other hand, the memorandum of

partition referred to above and the mutations certified in 1979

when Channaverayya was alive, clearly establish the partition

of 1979.

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12. It is relevant to note that in the partition of 1979 two

properties viz., Sy.No.430 measuring 5 acres 11 guntas and

Sy.No.555 measuring 29 guntas were allotted to the share of

Chanaveerayya. Admittedly, Chanaveerayya - the plaintiff's

father died in the year 1984. On his death, succession opens

under Section 8 of The Hindu Succession Act of 1956. The

plaintiff, who is his daughter being the Class-I heir would

inherit the property along with other Class-I heirs. The Trial

Court did not notice this aspect and has erroneously come to

the conclusion that the plaintiff does not have any right in the

properties in view of the partition of 1979. It is relevant to

note that the plaintiff acquires right in the property, not

because of birth in the family but because of death of her

father in 1984, who held two properties viz., Sy.No.430 and

Sy.No.555.

13. Though Mr Wodeyar would vehemently urge before

this Court that the suit for partition filed in 2010 is barred by

limitation on the premise that father had died in 1984 and suit

is filed more than 12 years after the death of the father, it is

relevant to note that in a suit for partition, the limitation starts

from the date the defendant raises a plea of ouster. It is well

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settled principle of law that possession of one co-sharer is the

possession of another co-sharer. Merely because defendant

No.3 is in possession of the properties, that does not mean that

defendant No.3 is in exclusive possession of the said properties.

On going through the written statement, it is noticed that the

plea of ouster is not raised and no evidence is led by defendant

No.3, in this behalf. In the absence of plea of adverse

possession or ouster which is very much required to dismiss the

suit of the plaintiff on the ground of limitation, the suit could

not have been dismissed on the ground of limitation.

14. It is urged by Mr Mahesh Wodeyar that Ex.D.15 - the

memorandum of partition reveals that the properties allotted to

the share of Channaverrayya would devolve upon his sons after

his demise. Thus, he would contend that the remaining

daughters of Channaverayya are not claiming any share in the

properties respecting the wish of the father.

15. Though such a recital in Ex.D.15 is found, what is

required to be noticed is that after the death of Channverayya,

the law of succession operates and under Section 8 of the said

Act, daughter becomes Class-I heir. If at all, Channverayya

wanted the properties to devolve on his sons after his demise,

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Channaverayya ought to have executed a Will in favour of his

sons. In the absence of such testament/Will in favour of his

sons, the statement made in the memorandum of partition

which cannot be treated as a Will cannot be considered. The

Trial Court has not considered this aspect of the matter and

dismissed the suit in its entirety.

16. For the aforementioned reasons, the impugned

judgment and decree are liable to be set-aside in part.

17. It is now brought to the notice of this Court that

defendant No.3, who is respondent No.3 died during the

pendency of this appeal and suit against respondent No.3 is

dismissed as abated. It is noticed there is adequate

representation on behalf of legal heirs of respondent No.3, in

the sense, other respondents have contested the matter raising

all permissible defence. It is also noticed that defendants No.1,

4 and 5 have filed written statement adopting the written

statement filed by defendant No.3. Hence, the omission on the

part of the appellants to implead legal representative of

deceased respondent No.3 does not cause any prejudice to

legal representatives of deceased respondent No.3 as the

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defence of respondent No.3 and the defence of respondents

No.1, 4 and 5 are one and the same.

18. Hence, the following:

ORDER

(i) The impugned judgment and decree dated

18.06.2016 in O.S.No.83/2010 passed by the

Principal Senior Civil Judge, Hubballi

O.S.No.83/2010 are set-aside in part.

(ii) The suit of the plaintiff is decreed in-part in respect

of item No.1 and 2 properties.

(iii) Plaintiff is entitled to 1/7th share in respect of item

Nos.1 and 2 properties.

(iv) Suit is dismissed in respect of remaining properties.

(v) The legal heirs of defendant No.3 are entitled to

claim their respective share in the Final Decree

Proceeding in item Nos.1 and 2 properties. In the

Final Decree Proceeding, the plaintiff shall implead

the legal heirs of defendant No.3 as the

respondents.

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