Karnataka High Court
Siddappa S/O Sabu Tuljani Since Dead By ... vs Shasappa S/O Siddappa Tulajani on 4 September, 2024
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RSA No. 7235 of 2011
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO. 7235 OF 2011 (PAR)
BETWEEN:
SIDDAPPA S/O SABU TULJANI
SINCE DEAD BY HIS LRS.
1. NEELAWWA @ NEELABAI W/O DEWENDRA KUVALLI,
AGE: 57 YEARS, OCC: HH WORK,
R/O TIKKUNDI, TQ. AND DIST. SANGLI (MH).
2. LAXMIBAI W/O DHARAMARAJ KUWALLI,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O TIKKUNDI, TQ. AND DIST. SANGLI (MH).
3. ADIVEPPA S/O SIDDAPPA TULAJANI,
Digitally signed AGE: 38 YEARS, OCC: NILL,
by RENUKA BEING MENTALLY AND PHYSICALLY DISABLED
Location: HIGH REP. BY NEELAWWA @ NEELABAI
COURT OF W/O DEWENDRA KUVALLI, APPELLANT NO.1,
KARNATAKA
R/O TIKKUNDI, TQ. AND DIST. SANGLI (MH).
...APPELLANTS
(BY SRI PREETAM DEULGAONKAR, ADVOCATE)
AND:
1. SHASAPPA S/O SIDDAPPA TULAJANI,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O MALAKANDEVARAHATTI,
TQ. AND DIST. BIJAPUR.
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RSA No. 7235 of 2011
2. BASAPPA S/O SIDDAPPA TULAJANI,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O MALKANDEVARAHATTI,
TQ. AND DIST. BIJAPUR.
3. BALAWWA W/O SUBBANNA BIRADAR,
AGE: 73 YEARS, OCC: HOUSEHOLD WORK,
R/O MALAKANDEVRAHATTI,
TQ. AND DIST. BIJAPUR.
4. SAYAWWA W/O SIDAPPA BIRADAR,
AGE: 63 YEARS, OCC: HOUSEHOLD WORK,
R/O KADLEWAD,
TQ. SINDAGI, DIST. BIJAPUR.
5. BOURAWWA W/O RAMANNA CHOUGALE,
AGE: 61 YEARS, OCC: HOUSEHOLD WORK,
R/O BELLAKKI,
TQ. AND DIST. SANGLI (MH).
6. SHANTABAI W/O BHIMARAYA HADIMANI,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O TIKKUNDI,
TQ. AND DIST. SANGLI (MH).
...RESPONDENTS
(BY SRI VINAYAK APTE, ADVOCATE FOR R1;
SRI S. V. DESHMUKH, ADVOCATE FOR R2, R3 AND R5;
R4 AND R6 ARE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO SET ASIDE THE JUDGMENT AN DECREE DATED:
31.03.2011, PASSED BY THE III ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, BIJAPUR IN R.A.NO.128/2007, AND ALLOW
THIS APPEAL.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
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RSA No. 7235 of 2011
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
This appeal is against the divergent findings. The
suit for partition was dismissed and an appeal preferred by
the plaintiff was allowed and the suit was decreed in part
granting 1/9th share to the plaintiff. The suit property
bearing Sy.No.126/2/1 measuring 8 acres 27 guntas
situated in Siddapur (K) village, Taluka and District
Vijayapur.
2. Admitted factual position is as under:
Siddappa is the propositus of the family and he was
arrayed as defendant No.1. He died in 2004. His wife
Gangawwa died somewhere in the year 1994-95. Thus,
Siddappa/defendant No.1 who died during the pendency of
the suit is survived by four sons and four daughters. The
suit is filed during the life of Siddappa by one of his sons
namely, Shasappa. Rest of the children of Siddappa are
arrayed as defendants.
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3. Defendant No.1-Siddappa filed written
statement which is adopted by the rest of the defendants.
4. The plaintiff claims that the suit property is the
joint ancestral property belonging to the family of the
plaintiff and the defendants.
5. It is forthcoming from the averments made in
the plaint that the plaintiff has averred that the property
bearing survey No.120/2 measuring 6 acres 16 guntas of
Siddapur village was standing in the name of his sister
Balabai. It is further stated that survey No.126/2/1
measuring 8 aces 27 guntas is standing in the name of
defendants No.1 and 3 jointly. Defendant No.3 is
admittedly, mentally and physically challenged. The suit is
filed on the premise that defendants No.1 and 3 are
intending to alienate the suit schedule property and thus
the plaintiff claimed 1/4th share.
6. The suit is contested by the legal
representatives of defendant No.1 namely his daughters
Laxmibai and Neelawwa, who are the appellants before
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this Court. The said defendants contended that there was
already a partition in the family and in the staid partition
the property bearing survey Nos.120/2, 126/1 and
126/2/1 are partitioned and there was a mutation based
on the said partition. It is stated that in the said partition
survey No.120/2 measuring 6 acres 16 guntas is allotted
to the share of the plaintiff Shasappa and survey No.126/1
measuring 8 acres is allotted to the share of plaintiff's
brother Basappa and survey No.126/2/1 measuring 8
acres 7 guntas is allotted to the share of Siddappa and his
son Adeveppa jointly. This partition is evidenced in ME
No.6784 and said mutation is marked at Ex.D13.
7. Defendants contend that Shasappa the plaintiff
and his brother Basappa got their properties exchanged
and later the plaintiff has sold his property and the suit is
filed with an intention to grab the property of the
defendants/appellants. It is further urged that the father
of the plaintiff and the present appellants Siddappa, during
in his life time to ensure that his physically and mentally
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challenged son Adeveppa is properly taken care of had
made arrangement to settle the property in the name of
present the present appellants/his daughters and ensured
that the properties mutated in their names vide ME
No.8927 which is marked at Ex.D8.
8. The Trial Court has dismissed the suit. The
plaintiff has filed an appeal before the First Appellate Court
and the First Appellate Court allowed the appeal in part
and granted 1/9th share in the suit schedule property.
9. This appeal was admitted on 06.03.2018 to
answer the following substantial questions of law:
1. Whether the lower appellate Court justified in
granting 1/9th share to the plaintiff in the suit
schedule property bearing Sy.No.126/2/1
measuring 8 acres 27 guntas of Siddapur (K)
village, when there was earlier partition on
17.08.1994 as per Ex.D13?
2. Whether the lower appellate Court justified in
reversing the judgment and decree of the Trial
Court granting 1/9th share to the plaintiff in the
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suit schedule property, when the plaintiff
already sold his share obtained under a
partition deed dated 17.08.1994?
3. Whether the lower appellate Court justified in
reversing the judgment and decree of the Trial
Court in the facts and circumstances of the
present case?
10. Learned counsel appearing for the appellants
would contend that the First Appellate Court erred in
granting the decree for partition based on the
documentary evidence produced before the First Appellate
Court without affording an opportunity to the appellants
to cross-examine the plaintiff on the said additional
documents. It is also his contention that the claim based
on the additional documents is not pleaded in the suit as
such the additional documents could not have been looked
into. He would further contend that the plaintiff having
sold the property allotted to his share in the partition of
1994 could not have maintained a suit when the father
was alive in respect of the property allotted to the share of
the father and plaintiff's brother Adeveppa.
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11. Learned counsel Sri Vinayak Apte appearing for
the respondent/plaintiff would contend that though the
suit against the father was not maintainable and the suit
was filed in the year 2001 as the father died in the year
2004, the succession opened in respect of the father's
share in the suit property and the First Appellate Court is
justified in granting the decree for partition in respect of
the share of the father in the suit property. He would also
urge that the alleged transfer of the property in the name
of the appellants during the life time of the father is not
supported by in a registered document and the appellants
do not require any title over the said property.
12. The property being the property of mother of
the plaintiff could not have been subject matter of the
partition in the year 1994 and since the mother is no more
all the children of Siddappa and sister Balabai are entitled
to inherit the property is the further contention of the
plaintiff.
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13. It is noticed that there was a partition in the
family in the year 1994 i.e., evidenced in ME No.6784
marked at Ex.D13. This partition is not questioned by
anyone. This partition is oral partition which is
subsequently reported to the revenue authorities. In the
said partition the suit property i.e, property bearing survey
No.126/2/1 measuring 8 acres 27 guntas is allotted to the
share of Siddappa the father of the plaintiff and Adeveppa
the brother of the plaintiff.
14. Admittedly, the brother of the plaintiff
Adeveppa is physically and mentally challenged. The suit
was filed both Siddappa and Adeveppa were alive. The suit
was not maintainable as the said property was admittedly
allotted to the share of Siddappa and Adeveppa. Though,
the plaintiff would contend that the property belonged to
his mother and later mutated in the name of his sister
Balabai, the plaintiff has not questioned the allotment of
share in the said property in favour of his father Siddappa
and Adeveppa. Admittedly, Balabai who is party to the
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proceeding has not questioned the partition of 1994. In
addition, the plaintiff having acquired the right over the
survey No.120/2 in the said partition got the said
properties exchanged with his brother with survey
No.126/1 and thereafter, he has sold the said property
bearing survey No.126/1 measuring 8 acres.
15. This being the position it is not open for the
plaintiff to contend that the partition of 1994 in respect of
the suit property is impermissible on the premise that the
property belong to Balabai.
16. It is noticed that the First Appellate Court has
allowed the appeal by taking into consideration some
mutation entries in respect of survey 126/2/1 which
indicated that property belonged to Balabai.
17. It is noticed that the First Appellate Court has
allowed the appeal accepting the plea raised in the appeal
memo that the property originally belonged to Gangawwa,
the mother of plaintiff and the appellants. However, this
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plea was not raised in the pleading before the Trial Court.
In addition, the additional documents are accepted in
evidence without affording an opportunity to the present
appellants to contest the claim of the plaintiff. In the
normal course, this Court could have remanded the matter
to the Trial Court as well as the First Appellate Court to
afford an opportunity to the present appellants to contest
the claim of the plaintiff based on additional documents
placed before the First Appellate Court.
18. However that exercise is futile given the fact
that plea raised in the first appeal that the property belong
to Gangawwa the mother of plaintiff was never the plea
before the Trial Court. The plaintiff cannot be permitted to
raise a new plea before the First Appellate Court without
amending the plaint.
19. It is an admitted fact that Adeveppa, the son of
Siddappa and brother of the plaintiff is physically and
mentally challenged. The ME No.8927 certified in the year
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2003 during the lifetime of father Siddappa would clearly
reveal that Siddappa had made some arrangement to
settle the property in favour of his two daughters namely
the appellants in this appeal who are taking care of
physically and mentally challenged son Adeveppa.
20. Learned counsel Sri Vinayak Apte would urge
that in absence of registered document the said mutation
does not confer any title.
21. Learned counsel appearing for the appellants
placed reliance on the judgment of the Hon'ble Apex Court
in KALE AND OTHERS VS DEPUTY DIRECTOR OF
CONSOLIDATION ORS (AIR 1976 SCC (3) 119) and
KORUKONDA CHALAPATHI RAO AND ANOTHER V/S
KORUKONDA ANNAPURNA SAMPATH KUMAR (2021)
11 SCR 836 and urged that the family settlement among
the family members in respect of immovable property
does not always call for registration of the documents.
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22. This Court has perused the aforementioned
judgment and also the materials placed on record. Though
it is noticed that family settlement is not pleaded with
necessary details what can be noticed is the father's desire
to settle the suit property on his two daughters who are
taking care of the welfare of physically and mentally
challenged son who is also having ½ share in it.
Accordingly, the father made that arrangement in the
year 2003. This arrangement is not questioned by any of
the children of late Siddappa. It is the only plaintiff who
has questioned this settlement during the life time of the
father. Taking care of mentally and physically challenged
person is not an easy task. It requires patience,
commitment and compassion. It is a huge challenge. In
this scenario the father has chosen to settle the property
on the daughters.
23. On oral appreciation of the evidence placed on
record. This Court is of the view that this was a family
arrangement made by the father in respect of property
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which she owned along with his mentally and physically
challenged son Adeveppa.
24. This being the position the settlement made by
the father cannot be faulted on the premise that the
document required registration. The settlement is made in
favour of his two daughters who did not have any right in
the partition took place in the year 1994. The arrangement
is made for the welfare of the physical and mentally
challenged son who was under the care of the present
appellants/daughters. The First Appellate Court has failed
to notice this aspect.
25. For the reasons assigned, this Court is of the
view that the judgment and decree passed by the First
Appellate Court are not sustainable and certainly call for
interference. Hence, the following:
ORDER
i. The appeal is allowed.
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ii. The impugned judgment and decree dated
31.03.2011 in RA No.128/2007 on the file of III
Additional Senior Civil Judge, Bijapur are set
aside.
iii. The suit of the plaintiff in O.S. No.191/2001 on
the file of III Addl. Civil Judge (Jr.Dn) Bijapur is
dismissed.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
KBM
CT:PK
