Karnataka High Court
Aruna vs Seetamma @ Roopa And Ors on 22 October, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
-1-
NC: 2024:KHC-K:7759
RFA No. 200078 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR FIRST APPEAL NO. 200078 OF 2024
(PAR/POS)
BETWEEN:
ARUNA
W/O LATE HARIPRASAD MUKTEDAR
AGE: 31 YEARS,
OCC: HOUSEHOLD AND AGRICULTURE,
R/O ASAR MOHALLA, KADBOOR GALLI,
TQ. CHITTAPUR, DIST. KALABURAGI-585211.
...APPELLANT
(BY SRI M. G. PATIL, ADVOCATE FOR
Digitally signed by SRI A. D. RATHOD, ADVOCATE )
SHIVALEELA
DATTATRAYA UDAGI
Location: HIGH AND:
COURT OF
KARNATAKA
1. SEETAMMA @ ROOPA
W/O JAGDISH (D/O RAJANNA),
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O. DUBALGUNDI, TQ. HUMNABAD,
DIST. BIDAR-585418.
2. GEETA
W/O CHANDRASHEKAR (D/O RAJANNA),
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O. GURUMITKAL, TQ. YADGIR,
DIST. YADGIR-585214.
-2-
NC: 2024:KHC-K:7759
RFA No. 200078 of 2024
3. PREETI @ PREETA
W/O ERANNA (D/O RAJANNA),
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O. RAICHUR, TQ. RAICHUR,
DIST. RAICHUR-584101.
...RESPONDENTS
THIS RFA IS FILED UNDER SECTION 96 OF CPC, PRAYING
TO KINDLY BE ALLOWED JUDGMENT AND DECREE PASSED BY
SENIOR CIVIL JUDGE AND JMFC, CHITTAPUR IN
OS.NO.80/2021 DATED 30.01.2024 MAY KINDLY BE SET ASIDE
AND DISMISS THE SUIT. JUDGMENT AND DECREE PASSED BY
SENIOR CIVIL JUDGE AND JMFC, CHITTAPUR IN
O.S.NO.80/2021 DATED 30.01.2024 MAY KINDLY BE SET
ASIDE AND SUIT MAY KINDLY BE REMANDED BACK FOR FRESH
TRIAL. ANY OTHER RELIEFS AS DEEMED FIT AND PROPER BE
GRANTED.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)
Though this matter is listed for admission taken up
for final disposal.
NC: 2024:KHC-K:7759
2. The defendant is before this court, being
aggreived by the judgment and decree dated 30.01.2024
passed in OS No.80/2021 on the file of Senior Civil Judge
and JMFC, Chittapur, (hereinafter referred to as 'the Trial
Court' for short), whereby the Trial Court while decreeing
the suit has held plaintiffs/respondents No.1 to 3 are
entitled for 1/4th share each in the suit schedule properties
by metes and bounds.
3. The above suit is filed by the plaintiffs for relief
of partition and separate possession of following
properties:
Properties : land in survey No.186/3 measuring
No.1(A) 12 guntas situated at Chittapura
village in Chittapur taluk,
Properties : land in survey No.199 measuring 18
No.1(B) acres 28 guntas situated at
Chittapura village in Chittapur taluk,
contending inter alia that they are the sisters of one
late Hariprasad Muktedar, the husband of the defendant.
That the plaintiffs and said Hariprasad Muktedar are the
children of one Rajanna and Anantamma. Said Rajanna
NC: 2024:KHC-K:7759
and Anantamma passed away on 27.03.2010 and
06.10.2019 respectively, while their brother, Sri
Hariprasad Muktedar husband of the defendant passed
away on 06.01.2021.
4. It is their further case that suit schedule
properties are the ancestral property of the plaintiffs and
the defendant. That originally the suit schedule properties
along with other properties stood in the name of elder
brother of the father of the plaintiffs, namely Manikappa
and that there was a oral partition between the father of
the plaintiffs Rajanna and his brothers in terms of which
the suit schedule properties were allotted to the share of
their father Rajanna. The father of the plaintiffs in whose
name the revenue records were mutated in respect of the
suit property was enjoying the same holding it as joint
family properties. That upon the demise of said Rajanna,
name of husband of defendant Hariprasad Muktedar was
entered into in the revenue records nominally, as he was
the karta of the family. That the said Hariprasad Muktedar
NC: 2024:KHC-K:7759
passed away on 06.01.2021, leaving behind the
defendant, as his sole legal representative without any
children. That upon the demise of said Hariprasad
Muktedar the defendant his wife behind the back of the
plaintiffs and without their knowledge obtained mutation
of her name in the revenue records in respect of the suit
schedule property and that she was making efforts to
alienate the same. That the defendant was not allowing
the plaintiffs to enter her house and when they requested
for division of the property, the defendant did not agree
for partition of the property. Hence, the suit for partition
and separate possession of their 1/4th share in the suit
schedule properties.
5. On service of notice, defendant appeared and
filed her written-statement, admitted the relationship and
also the nature of the properties. It is further specifically
contended that there was no sufficient income from the
suit properties. As such, her husband being the kartha of
the family, spent huge amount for improving the suit lands
NC: 2024:KHC-K:7759
and had incurred availed of Rs.3,00,000/- to 4,00,000/- in
this regard. That plaintiff No.1 was residing with late
Hariprasad and he was managing even their family by
providing money, food grains etc. That apart, he was also
giving certain amounts to plaintiffs No.2 and 3 every year
towards their family expenditures. Thus, in view of these
additional expenses, said Hariprasad had incurred a debt
of Rs.8,00,000/- to 10,00,000/- which was for the family
purposes and necessity.
6. That said Hariprasad was suffering from kidney
and liver ailment and he had incurred additional expenses
of Rs.6,00,000/- to 8,00,000/-. Thus in aggregate, he had
incurred about Rs.15,00,000/- to 18,00,000/- of debt for
the family necessity.
7. That subsequent to the death of the husband of
defendant, there was a oral partition between the plaintiffs
and the defendant on Ugadi of 2021. In which plaintiffs, in
lieu of their share in the suit property agreed to take 10
tolas of gold belonging to the defendant personally. That
NC: 2024:KHC-K:7759
they have already taken 3 tolas of gold each and in
consideration thereof have given the suit properties
exclusively to the defendant and thus, ever since the said
oral partition, defendant is in exclusive possession and
enjoyment of the suit properties as absolute owner
thereof. Hence, sought for dismissal of the suit.
8. The Trial Court based on the pleading, framed
the following issues for consideration:
1. Whether the plaintiffs prove that, they
constitute joint family along with defendant?
2. Whether the defendant proves that, there was
oral partition effected and plaintiffs have
received three tola Gold in lieu of their share?
3. Whether the plaintiffs are entitled for the relief
sought?
4. What Order or Decree?
9. Plaintiff No.1 examined herself as PW1 and
exhibited 7 documents marked as Ex.P1 to P7. The
defendant examined herself as DW1 and exhibited 14
documents marked as Ex.D1 to D14.
NC: 2024:KHC-K:7759
10. On appreciation of the evidence, the Trial Court
answered issues No.1 and 3, in the affirmative and issue
No.2, in the negative and consequently decreed the suit
holding that the plaintiffs No.1 to 3 being entitled for 1/4th
share in the suit schedule properties by meets and
bounds. Aggrieved by the same, defendant is before this
Court.
11. Learned counsel for the defendant/appellant
reiterating the grounds urged in the memorandum of
appeal, submits that the Trial Court has failed to
appreciate that the husband of the defendant had incurred
a debt of Rs.15,00,000/- to 18,00,000/- for family
necessity and that there was a oral partition between the
plaintiffs and the defendant in terms of which the plaintiffs
had received 3 tolas of gold each in lieu of their share as
such the plaintiffs have no share right or interest in the
suit schedule properties. That the Trial Court, without
appreciating these aspects of the matter, has erroneously
decreed the suit. Hence, seeks for allowing of the appeal.
NC: 2024:KHC-K:7759
12. Heard and Perused the records.
13. The points that arise for consideration:
Whether the Trial Court is justified in
decreeing the suit of the plaintiffs, holding them
being entitled for 1/4th share each in the suit
schedule properties?
14. There is also no dispute that the suit schedule
properties belong to father of the plaintiffs and husband of
defendant and also there is also no dispute that there has
been no partition of the suit schedule property during the
lifetime of the parents and brother of the plaintiffs.
15. That the suit schedule properties which were
ancestral properties were allotted to the share of father of
the plaintiffs in a partition that had been entered into
amongst the brothers of father of the plaintiffs and that
the said property stood in his name till his demise. That
upon his demise, husband of the defendant, being the
karta of the family had obtained mutation entries in his
name. The revenue records produced by the plaintiffs as
- 10 -
NC: 2024:KHC-K:7759
per Ex.P1 to P7 as taken note of by the Trial Court would
indicate that the name of the husband of the defendant
was entered into on the basis of 'inheritance'. Thus, in the
normal course upon the demise of their father, plaintiffs
and husband of defendant would be entitled for 1/4th share
each in the suit properties. However, in the instant case,
since defendant being the wife of the brother of the
plaintiffs has denied and refused partition of the
properties, the present suit has been filed by the plaintiffs.
16. The two specific defence set up by the
defendant is that her husband had incurred loan of
Rs.15,00,000/- to 18,00,000/- for family necessities and
that after the demise of her husband there was an oral
partition in the year 2001 between the plaintiffs and
defendant, in which in lieu of their share the Plaintiffs had
taken 3 tolas of gold.
17. As regards her husband incurring the debt, no
evidence has been produced except Ex.D1 to D14 which
are the medical bills. As rightly taken note of and
- 11 -
NC: 2024:KHC-K:7759
appreciated with the Trial Court, the said documents would
not justify or support the contention of the defendant of
there being any loan incurred by her husband for the
family necessity. As such, the contention of the defendant
that, her husband had incurred debt of Rs.15,00,000/- to
16,00,000/- cannot be countenanced.
18. With regard to the oral partition purportedly
entered into between the plaintiffs and the defendant,
subsequent to death of her husband, no evidence in this
regard is produced either.
19. It is the claim of the defendant that such oral
partition had taken place during Ugadi festival in the year
2021, which was on 13.04.2021, while the suit has been
filed on the 06.08.2021.
20. Though the defendant has claimed that she had
given 3 tolas of gold each to the plaintiff, no evidence in
this regard is produced either.
- 12 -
NC: 2024:KHC-K:7759
21. In view of the law laid down by the Hon'ble
Apex Court in the case of Vineeta Sharma Vs. Rakesh
Sharma and others reported in (2020) 9 SCC 1, plea of
partition based on oral evidence alone cannot be accepted. In
view of the explanation of Section 6(5) of Hindu Succession
Act, 1956 and the same is to be rejected outrightly. It is
settled law that there cannot be any oral partition
subsequent to the amendment of Section 6 of the Hindu
Succession Act.
22. In the aforesaid factual aspects of the matter
and in view of plaintiffs being the daughters of Sri Rajanna
are entitled for their 1/4th share each along with their
brother Hariprasad Muktedar, the husband of the
defendant, no error or illegality can be found with the
reasoning and conclusions arrived by the Trial Court. No
grounds are made out warranting admission of this
matter. Accordingly, the appeal is dismissed and
confirming the judgment and decree passed by the Trial
Court is confirmed.
- 13 -
NC: 2024:KHC-K:7759
23. The copy of this judgment and decree be sent
to the Trial Court and to the plaintiffs, as this appeal has
been disposed of even without issuing notice to the
respondents at the admission stage itself.
Sd/-
(M.G.S.KAMAL)
JUDGE
KBM
CT:PK
