Karnataka High Court
Sri.Bharamappa S/O Tammanna Dalawai vs Smt.Sattewwa W/O Tammanna Dalawai on 23 October, 2024
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NC: 2024:KHC-D:15433
RFA No. 100191 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO.100191 OF 2018 (PAR-)
BETWEEN:
SRI. BHARAMAPPA S/O. TAMMANNA DALAWAI,
AGED ABOUT: 53 YEARS, OCC: AGRICULTURE,
R/AT: GADYAL, TQ: JAMKHANDI,
DIST: BAGALKOTE-587301.
...APPELLANT
(BY SRI. MRUTYUNJAYA TATA BANGI, ADVOCATE)
AND:
1. SMT. SATTEWWA W/O. TAMMANNA DALAWAI,
AGED ABOUT: 70 YEARS, OCC: AGRICULTURE,
R/AT: GADYAL, TQ: JAMKHANDI,
DIST: BAGALKOTE-587301.
2. SRI. BHIMAPPA S/O. TAMMANNA DALAWAI
ASHPAK AGED ABOUT: 51 YEARS, OCC: AGRICULTURE,
KASHIMSA
MALAGALADINNI R/AT: GADYAL, TQ: JAMKHANDI,
DIST: BAGALKOTE-587301.
3. SMT.DUNDAWWA W/O. BASAPPA HIREKURUBAR @
DYAMANNAVAR, AGED ABOUT: 56 EYARS,
Location: OCC: HOUSEHOLD WORK, R/AT: KOKATANUR,
HIGH
COURT OF TQ: ATHANI, DIST: BELAGAVI-590118.
KARNATAKA ...RESPONDENTS
(BY SRI. MADANMOHAN M. KHANNUR, ADVOCATE FOR R1 TO R3)
THIS RFA FILED UNDER SECTION 96 OF CPC., PRAYING TO
SET-ASIDE THE JUDGMENT AND DECREE PASSED BY THE ADDL.
SENIOR CIVIL JUDGE, JAMKHANDI PASSED IN O.S. NO.76 OF 2013
DATED 20.02.2018 AND DISMISS THE SUIT WITH COST
THOUGHOUT BY ALLOWING THE PRESENT APPEAL IN THE INTEREST
OF JUSTICE AND EQUITY.
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NC: 2024:KHC-D:15433
RFA No. 100191 of 2018
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
This appeal is by defendant No.1, who suffered a decree
for partition in O.S.No.76/2013 on the file of Additional Senior
Civil Judge, Jamkandi.
2. The relationship of the parties is not in dispute. The
admitted genealogy is as under:
Siddappa
Tammanna (dead) Sabu
Sattewwa(wife)
Plaintiff
Dundawwa Bharamappa Bhimappa
(D-3) (D-1) (D-2)
3. One Siddappa was the propositus. He had two sons
namely Tammanna and Sabu. Tammanna died leaving behind
his wife Sattewwa and three children namely Bharamappa,
Bhimappa and Dundawwa.
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4. Sattewwa filed a suit for partition claiming share in
the properties left behind by her husband Tamanna. In the said
suit, Bharamappa is added as defendant No.1, Bhimappa is
added as defendant No.2 and Dundawwa as defendant No.3.
5. The admitted factual position is that there was a
partition in the year 2001 through a registered partition deed
dated 18.08.2001. To the said partition, Sabu-the brother of
Tamanna, and Bharamappa, Bhimappa and Dundawwa the
children of Tamanna were parties. Satewwa was not a party yto
the partition
6. The plaintiff-Satewwa filed the suit for partition and
separate possession. She has not questioned the registered
partition deed dated 18.08.2001. Even in the plaint, there is no
reference to the said partition suit.
7. Defendant No.1 contested the suit and pleaded that
there is already a partition in terms of registered partition deed
dated 18.08.2001 referred to above and resisted the suit. Rest
of the defendants did not file the written statement. The
Dundawwa remained exparte.
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8. The trial Court framed the following issues:
i) Whether plaintiff proves that defendant Nos.1
and 2 colluding each other got entered their
name to the suit property illegally?
ii) Whether suit of the plaintiff in the present form
is maintainable ?
iii) Whether suit is bad for non-joinder of
necessary parties ?
iv) Whether suit is barred by time limitation ?
v) Whether the plaintiff is entitled to the reliefs
sought for ?
vi) What Order or Decree ?
9. Since, the properties originally belonged to
Siddappa, the trial Court held that Sattewwa is also entitled to
share in the property of Tammana-her husband, after the death
of the husband. Accordingly, the suit is decreed granting 5/16th
share in the suit scheduled properties. Defendants No.1 and 2
are granted 5/16th share each. Defendant No.3-Dundawwa is
granted 1/16th share.
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10. Aggrieved by the aforementioned judgment and
decree, defendant No.1 is in appeal.
11. Learned counsel appearing for defendant
No.1/appellant would contend that there was a registered
partition on 18.08.2001, in which, defendant No.3-Dundawwa
was allotted a share in the form of cash of Rs.20,000/- and
having accepted that partition, Dundawwa did not claim any
other properties and the said deed is duly registered. It is his
further submission that said deed is not questioned either by
the plaintiff or by defendant No.3. Defendant No.3-Dundawwa
remained expate before the trial Court.
12. Alternatively it is urged that, assuming the plaintiff
is having share in the property, Dundawwa who has received
share in the partition of 2001 could not have questioned the
partition of 2001 and Dundawwa has not claimed share in the
property by filing written statement or by filing a counterclaim.
Thus, he would contend that in the absence of any prayer by
Dundawwa to seek partition without challenging the registered
partition deed of 2001, the decree awarding 1/16th share is
impermissible.
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13. Learned counsel appearing for the respondents,
who are the plaintiff, defendants No.2 and 3, would urge before
this Court that the trial Court is justified in granting a decree
for partition by granting share to all the sharers as the plaintiff
was not party to the earlier partition and for all practical
purposes, earlier partition is invalid. Thus, he would pray for
dismissal of the appeal.
14. This Court has considered the contentions raised at
the bar. The following point arises for consideration
"Whether the trial Court is justified in granting
share in favour of defendant No.3-Dundawa,
who did not challenge the registered partition
deed of 18.08.2001 and who did not claim any
share in the written statement or in the form of
a counterclaim ?"
15. This Court has considered the contentions.
Admittedly, the properties once belonged to propositus
Siddappa. The Siddappa died leaving behind two sons namely
Tammanna and Sabu. After the death of Tammanna, the
Tammanna's undivided ½ share devolved upon his wife
Sattewwa and two sons namely Bhimappa and Bharamanna
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and daughter Dhundawwa. The remaining ½ share was jointly
inherited by another son-Sabu. In the year 2001 in terms of
registered partition deed dated 18.08.2001, the properties
were divided. In the said partition, Sattewwa was not a party
and the four persons namely Bhimappa, Bharamanna,
Dundawwa and Sabu effected partition of the properties and
Dundawwa did not take share in immovable properties. On the
other hand, she received Rs.20,000/- towards her share in the
said property. Said partition is acted upon among the parties to
the said partition.
16. However in the year 2013, Sattewwa filed a suit for
partition claiming share in the properties. As already noticed,
Sattewwa has not questioned the partition deed dated the
18.08.2001. She not being a party to the said partition, need
not question the partition deed dated 18.08.2001. Suffice it for
her to make a claim for partition of her share. Among the
parties to the partition of 18.08.2001, there is no dispute
relating to the validity of the partition deed 18.08.2001.
Dundawwa, who is also arrayed as a party, did not challenge
the partition deed 18.08.2001. She remained exparte. She did
not file counter claim.
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17. This being the position, this Court is of the view
that Dundawwa has already claimed her share in the properties
by accepting Rs.20,000/- way back in year 2001. Without there
being a challenge to the legality of the partition deed dated
18.08.2001 by Dundawwa, the trial Court could not have
granted a decree for partition of 1/16th share to the Dundawwa.
18. Thus, the judgment and decree passed by the trial
court are modified. Sattewwa, is awarded 1/3rd share and so
also each of defendant No.1 and 2 are awarded 1/3rd share in
the property of Tammanna which Tammanna inherited from
Siddappa and which was later allotted to the branch of
Tammanna. If any partition has taken place among defendants
1 and 2 after the partition of 2001, same will not come in the
way of final decree Court executing decree for partition passed
in this appeal.
19. Accordingly, this Court passed the following:
ORDER
i) The appeal is allowed-in-part.
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ii) The impugned judgment and decree dated
20.02.2018 passed by learned Additional Senior
Civil Jude, Jamkhandi in O.S.No.76/2013, are
modified.
iii) The suit of the plaintiff is decreed granting 1/3rd
share to the plaintiff, 1/3rd share to defendant
No.1 and 1/3rd share to defendant No.2 in the
property allotted to the branch of Tammanna in
the partition dated 18.08.2001.
iv) No order as to cost.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
AM
CT:ANB
List No.: 1 Sl No.: 55.
