Karnataka High Court
Madiwalappa Sakrapa Kurbet vs Channavva W/O Adiveppa Melavanki on 25 October, 2024
-1-
NC: 2024:KHC-D:15602
RFA No. 100140 of 2014 C/w
RFA No.100127/2014
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO.100140 OF 2014 (PAR-)
C/W REGULAR FIRST APPEAL NO.100127 OF 2014
IN RFA 100140/2014
BETWEEN:
SMT. CHANNAWWA W/O. ADIVEPPA MELAVANKI,
SINCE DECEASED BY HER LRS.
1A. SMT. CHANABASAVVA
W/O. BASAPPA LAKKUNDI,
AGE: 38 YEARS,
OCC: HOUSE HOLD WORK,
R/O: HOLEHOSUR,
TQ: BAILHONGAL
DIST: BELGAVI.
ASHPAK
KASHIMSA
MALAGALADINNI 1B. SHRI. DEMAPPA
S/O. ADIVEPPA MELAVANKI,
AGE: 51 YEARS,
OCC: AGRICULTURE,
R/O. HOLEHOSUR-591118.
Location:
TQ: BAILHONGAL,
HIGH DIST: BELAGAVI.
COURT OF
KARNATAKA
1C. SHRI. BASAVARAJ
S/O. ADIVEPPA MELAVANKI,
AGE: 51 YEARS,
OCC: AGRICULTURE,
R/O: HOLEHOSUR - 591118
TQ: BAILHONGAL,
DIST: BELAGAVI.
...APPELLANTS
(BY SRI. B.A.PATIL, ADVOCATE)
-2-
NC: 2024:KHC-D:15602
RFA No. 100140 of 2014 C/w
RFA No.100127/2014
AND:
1. SHRI. MADIWALAPPA S/O. SAKAREPPA KURBET
SINCE DECEASED BY HER LRS.
1A. SMT. VIJAYMALA W/O. MADIWALAPPA KURBET,
AGE: 71 YEARS, OCC: HOUSEHOLD WORK,
R/O. H.NO. 37/A, TEACHER'S COLONY,
KHASBAG-1, BELAGAVI - 590003
TQ & DIST: BELAGAVI.
1B. SHRI. SANTOSH
S/O. MADIWALAPPA KURBET,
AGE: 46 YEARS,
OCC: GOVERNMENT SERVANT,
R/O. H.NO.37/A,
TEACHER'S COLONY,
KHASBAG-1, BELAGAVI - 590003
TQ & DIST: BELAGAVI.
1C. SMT. SHOBHA
W/O. RAJESH KURBET
AGE: 39 YEARS,
OCC: GOVERNMENT SERVANT,
R/O. H.NO.37/A, TEACHER'S COLONY,
KHASBAG-1, BELAGAVI - 590003
TQ & DIST: BELAGAVI.
1D. SMT. GEETA
W/O. MAHADEV KILLEDAR,
AGE: 41 YEARS,
OCC: GOVERNMENT SERVANT,
R/O: DOLLOR COLONY,
NIPANI - 591237.
TQ: NIPANI, DIST: BELAGAVI.
2. SHRI. BASAPPA S/O. SAKAREPPA KURUBET,
SINCE DECEASED BY HER LRS.
2A. SMT. BASALINGAVVA
W/O. BASAPPA KURBET
AGE: 74 YEARS,
OCC: HOUSEHOLD WORK,
R/O: HOLIHOSUR - 591118,
TQ: BAILHONGAL, DIST: BELAGAVI.
-3-
NC: 2024:KHC-D:15602
RFA No. 100140 of 2014 C/w
RFA No.100127/2014
2B. SRI. IRAPPA
S/O. BASAPPA KURBET
AGE: 48 YEARS,
OCC: AGRICULTURE,
R/O: HOLIHOSUR - 591118,
TQ: BAILHONGAL,
DIST: BELAGAVI.
2C. SMT. MALLAVVA
W/O. MALAGOUDA PATIL,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O. MARADI NAGALAPUR-591125
TQ: BAILHONGAL, DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. R.K. KULKARNI, ADV FOR R1 (A TO D) & R2 (A TO C)
THIS RFA FILED UNDER SEC. 96 OF CPC., PRAYING TO SET
ASIDE THE JUDGMENT AND THE DECREE DATED 15.07.2014 IN
O.S.NO.13/2012 PASSED BY THE COURT OF THE SENIOR CIVIL
JUDGE, BAILHONGAL AT BAILHONGAL IN RESPECT OF SUIT ITERM
NOS.7 & 8 LANDS AND THE SUIT HOUSE NOS.48 AND 49 AND
DECREE THE SAIED SUIT BY ALLOTTING THE SEPARATE
POSSESSION OF ½ SHARE OF THE APPELLANT THEREIN, IN THE
INTEREST OF JUSTICE AND EQUITY.
IN RFA NO.100127/2014
BETWEEN:
MADIWALAPPA SAKAREPPA KURBET,
AGE: 62 YEARS,
OC: RETD. TEACHER & AGRICULTURE
R/O. H NO. 37/A, TEACHER COLONY,
KHASBAG, BELGAUM.
...APPELLANT
(BY SRI. R. K. KULKARNI, ADVOCATE)
-4-
NC: 2024:KHC-D:15602
RFA No. 100140 of 2014 C/w
RFA No.100127/2014
AND:
1. SMT. CHANNAVVA W/O. ADIVEPPA MELAVANKI
AGE: 67 YEARS, OCC: HOUSEHOLD WORK
BY HER PA HOLDER SMT. CHANABASAVVA
W/O. BASAPPA LAKKUNDI, AGE: 29 YEARS,
OCC: HOUSEHOLD WORK and AGRICULTURE,
R/O: HOLIHOSUR, TQ: BAILHONGAL
DIST: BELGAUM.
(DELETED VIDE ORDER DATED 14.03.2023)
2. BASAPPA NAGAPPA KURABET,
AGE: 67 YEARS,
OCC: AGRICULTURIST,
R/O: HOLIHOSUR,
TQ: BAILHONGAL
DIST: BELGAUM
...RESPONDENTS
(BY SRI. B.A.PATIL, ADVOCATE)
THIS RFA FILED UNDER SEC.96 OF CPC., PRAYING TO SET-
ASIDE THE JUDGMENT AND DECREE DATED 15.07.2014 PASSED IN
O.S.NO.13/2012 BY THE SENIOR CIVIL JUDGE, BAILHONGAL AT:
BAILHONGAL BY ALLOWING THIS APPEAL WITH COSTS BY
DISMISSING THE SUIT FILED BY THE RESPONDENT NO.1 IN
O.S.NO.13/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE
BAILHONGAL AT: BAILHONGAL IN THE INTEREST OF JUSTICE AND
EQUITY.
THESE APPEALS ARE COMING ON FOR FURTHER DICTATION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
-5-
NC: 2024:KHC-D:15602
RFA No. 100140 of 2014 C/w
RFA No.100127/2014
ORAL JUDGMENT
These appeals are against the rejected claim in
respect of item No.7 and 8 of suit schedule 'A' property
and properties bearing Nos.48 and 49 in suit schedule 'B'.
2. The suit is decreed in respect of remaining
properties awarding 1/4th share to the plaintiff. The
contesting defendant No.1 has filed a cross-objection
challenging the decree for partition in respect of other
properties granted in favour of the plaintiff. The cross-
objector/defendant No.1 died during the pendency of this
appeal. Hence, the said appeal is dismissed as abated.
3. Learned counsel for the appellant/ plaintiff
would contend that the suit could not have been dismissed
in respect of item No.7 and 8 of 'A' schedule property and
properties bearing No.48 and 49 of 'B' schedule. It is his
submission that item No.1 to 6 of 'A' schedule being the
agricultural properties and being the ancestral properties,
the income derived from the said properties was used to
acquire item No.7 and 8. He would also contend that
NC: 2024:KHC-D:15602
RFA No. 100140 of 2014 C/w
defendant No.1 did not have a sufficient income from his
employment to purchase the item Nos.7 and 8 of 'A'
schedule properties as well as properties bearing No.48
and 49 of 'B' schedule. When there is no evidence relating
to the sufficient income from his employment, the trial
Court could not have dismissed the suit for partition in
respect of item Nos.7 and 8 of 'A' schedule and property
bearing Nos.48 and 49 of 'B' schedule.
4. Learned counsel appearing for defendant No.1,
who is the appellant in R.F.A.No.100127/2014 would
contend that defendant No.1 was a Government employee
and he had sufficient independent income to purchase
item Nos.7 and 8 of 'A' schedule properties as well as
properties bearing Nos.48 and 49 and those properties
being purchased from his income derived from the
employment are the self-acquired properties of defendant
No.1. It is also his further contention that there is a
presumption under Hindu Law that the property standing
in the name of an individual, is the self-acquired property
NC: 2024:KHC-D:15602
RFA No. 100140 of 2014 C/w
and if anybody is to take a contrary stand, the burden is
on the person who would assert that the said property is
the joint family property. The plaintiff has not discharged
the burden. He would also contend that the plaint
paragraph No.4 itself would indicate that the plaintiff and
her husband were in control and management of the
ancestral properties and defendant No.1 was permanently
residing and working in Belagavi and he had no control
over the ancestral properties and defendant No.1 did not
utilize any income from the ancestral properties to
purchase these properties.
5. It is also the contention of defendant No.1 that
the trial Court could not have granted share to the
plaintiff, who is the daughter born before 1956 and at the
most could have granted notional share in the item Nos.1
to 6 of 'A' schedule properties. It is also his contention
that defendant No.1 alone has succeeded to the property
of his father as a sole surviving co-parcener and as such,
the plaintiff is not entitled to any share.
NC: 2024:KHC-D:15602
RFA No. 100140 of 2014 C/w
6. This Court has considered the contentions
raised at the bar and perused the records. The following
points arise for consideration.
i) Whether the plaintiff has proved that
item Nos.7 and 8 and properties bearing
Nos.48 and 49 were acquired from the
joint family income?
ii) Whether defendant No.1 has established
that item Nos.7 and 8 and properties
bearing Nos. 48 and 49 are his self-
acquired properties?
iii) Whether defendant No.1 is able to
establish that the plaintiff does not
inherit equal share as she was born
before 1956?
7. As can be noticed from the records which is
before the Court, except item No.7 and 8 of 'A' schedule
and properties bearing Nos.48 and 49 in 'B' schedule, all
other properties were the properties standing in the name
of the father of the plaintiff and 1st defendant viz.
Madiwalappa Sakareppa Kurubetta.
NC: 2024:KHC-D:15602
RFA No. 100140 of 2014 C/w
8. This Court has perused the evidence relating to
the respective contentions in respect of item No.7 and 8 of
'A' schedule and properties No.48 and 49 of 'B' schedule.
The particulars relating to the date of employment of the
1st defendant, his salary and the particulars relating to the
income from the ancestral properties and savings if any
from the said properties are not forthcoming. The Trial
Court without even insisting for production of the sale
deeds in the name of the 1st defendant has proceeded to
hold that the properties in the name of 1st defendant i.e.
item No.7 and 8 and properties No.48 and 49 are the self-
acquired properties.
9. This Court is of the view that the findings ought
to have been given after securing the best evidence from
both the parties. Under these circumstances, this Court is
of the view that the finding relating to the self-acquisition
in respect of item No.7 and 8 and the properties bearing
No.48 and 49 are to be set-aside and the matter requires
- 10 -
NC: 2024:KHC-D:15602
RFA No. 100140 of 2014 C/w
to be remitted to the Trial Court for fresh consideration on
those properties.
10. As far as other properties are concerned which
are admittedly ancestral properties, the Trial Court has
granted 1/4th share to the plaintiff/appellant. Since the
defendant No.1 has not raised any defence of previous
partition or alienation, the benefit of amended Section 6 is
available to the plaintiff and in view of the law declared by
the Apex Court in VINEETA SHARMA vs RAKESH
SHARMA (AIR 2020 SC 3717), this Court is of the view
that the plaintiff is entitled to 1/4th share in all the
properties except item Nos.7 and 8 of 'A' schedule and
properties bearing No.48 and 49 of 'B' schedule.
11. The Trial Court shall afford an opportunity to
both the plaintiff and the defendant No.1 to establish their
respective contention in respect of their claim over item
No.7 and 8 of 'A' schedule and property bearing No.48 and
49 of 'B' schedule.
- 11 -
NC: 2024:KHC-D:15602
RFA No. 100140 of 2014 C/w
12. After considering the fresh evidence to be led
on the aforementioned four properties, the Trial Court
shall give a finding in accordance with law and to pass
appropriate orders.
13. It is made clear that the view taken by this
Court in setting aside the finding on the aforementioned
four properties should not be construed as made in favour
of the plaintiff/appellant and against defendant/
respondent.
14. This Court has set-aside the finding for want of
sufficient evidence before the Trial Court and the Court
has remanded the matter to give a finding after securing
the best evidence possible in the matter.
15. Hence, the following:
ORDER
(i) R.F.A.No.100140/2014 is allowed-in-
part.
- 12 -
NC: 2024:KHC-D:15602
RFA No. 100140 of 2014 C/w
(ii) The judgment and decree dated
15.07.2014 passed in O.S.No.13/2012 on
the file of the Senior Civil Judge,
Bailhongal are set-aside in part.
(iii) The suit is decreed in part awarding 1/4th
share to the plaintiff in suit item Nos.1 to
6 of 'A' schedule properties and
properties bearing No.38 in 'B' schedule.
(iv) Defendant No.1 will have 1/4th share in
No.1 to 6 of 'A' schedule properties and
property bearing No.38 in 'B' schedule.
(v) Defendant No.2 will have 1/2th share in
No.1 to 6 of 'A' schedule properties and
property bearing No.38 in 'B' schedule.
(vi) In respect of other properties, the matter
is remitted to the Trial Court for fresh
consideration in the light of the
observations made herein above.
(vii) Parties shall appear before the Trial Court
on 19.11.2024.
(viii) In case, any of the parties do not appear
on 19.11.2024 the Trial Court shall issue
- 13 -
NC: 2024:KHC-D:15602
RFA No. 100140 of 2014 C/w
summons to those parties before
considering the case on merits.
(ix) In view of disposal of RFA
No.100140/2014, RFA No.100127/2014
does not survive for consideration and is
dismissed.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
AM/BRN
CT:ANB
