Karnataka High Court
Siddappa And Ors vs Shobha And Ors on 5 September, 2024
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NC: 2024:KHC-K:6758
MSA No. 200033 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
MISCL SECOND APPEAL NO. 200033 OF 2022 (RO)
BETWEEN:
1. SIDDAPPA
S/O CHANAVEERAPPA HATTARKIHAL,
AGE: 69 YEARS, OCC: AGRICULTURE,
R/O. INGLESHWAR, TQ. B. BAGEWADI,
NOW AT VIJAYAPUR (NEAR RAILWAY STATION,
YOGAPUR ONI, KUMBAR HOUSE),
PRESENTLY R/O PLOT NO.76 RAMKRISHNA LAYOUT,
ATHANI ROAD VIJAYAPUR
AMBAWWA W/O SIDDAPPA HATTARKIHAL
DIED DURING PENDENCY OF RA
Digitally signed
by RENUKA PARASHURAM S/O CHANAVEERAPPA HATTARKIHAL
Location: HIGH (SINCE DECEASED)
COURT OF
KARNATAKA
2. SAVITA W/O PARASHURAM HATTARKIHAL,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O. KARNATAKA COLONY NEAR SINDAGI NAKA,
KESU ITTANGI BHATTI, VIJAYAPURA
NOW R/O. PLOT NO.76 RAMKRISHNA LAYOUT
ATHANI ROAD VIJAYAPUR.
3. SMT. DUNDAWWA W/O CHANDAPPA SATIHAL,
AGE: 53 YEARS,
OCC: WORKING IN COTTON MILL AND
AGRICULTURE,
R/O. SINDAGI NAKA, VIJAYAPURA.
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MSA No. 200033 of 2022
R/O. PLOT NO.76 RAMKRISHNA LAYOUT,
ATHANI ROAD VIJAYAPUR.
...APPELLANTS
(BY SRI D. P. AMBEKAR, ADVOCATE)
AND:
1. SHOBHA W/O KALLAPPA HATTARKIHAL,
AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
R/O. INGALSHWAR
TQ. BASAVANA BAGEWADI-586203,
NOW AT KADLEWAD, TQ. SINDAGI,
DIST. VIJAYAPURA-586128.
2. ASHWINI D/O KALLAPPA HATTARKIHAL,
AGE: 17 YEARS, OCC: STUDENT.
3. AKASH S/O KALLAPPA HATTARKIHAL,
AGE: 14 YEARS, OCC: STUDENT,
4. CHANAVEERAPPA S/O KALLAPPA HATTARKIHAL,
AGE:11 YEARS, OCC: NIL.
APPELLANT NO. 2 TO 4 ARE MINORS,
AND ARE REPRESENTED BY THEIR
MOTHER APPELLANT NO.1 AS THEIR MINOR
GUARDIAN.
5. SECRETARY,
GRAM PANCHAYAT, INGALESHWAR,
TQ. B. BAGEWADI-586203.
6. THE SUB REGISTRAR,
B. BAGEWADI-586203.
7. THE MANAGER,
P. L. D. BANK,
B. BAGEWADI-586203.
...RESPONDENTS
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MSA No. 200033 of 2022
(BY SRI R. V. NADAGOUDA, ADVOCATE FOR R1 TO R3;
R4 IS MINOR REPTD. BY R1;
R5 TO R7 ARE SERVED)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CPC,
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND ORDER OF REMAND DATED 25.10.2021
PASSED BY THE IV ADDITIONAL DISTRICT JUDGE, VIJAYAPUR,
IN RA.NO.7/2018, AGAINST THE JUDGMENT AND DECREE
DATED 20.11.2017 PASSED BY THE SENIOR CIVIL JUDGE AND
JMFC, BASAVANA BAGEWADI DISMISSING OS.NO.37/2011,
AND FURTHER DISMISS THE SAID RA.NO.7/2018 WITH COSTS
THROUGHOUT. AND SUCH FURTHER OR OTHER RELIEFS BE
GRANTED TO WHICH THE APPELLANT WOULD BE FOUND
ENTITLED TO ON THE FACTS AND CIRCUMSTANCES OF THE
CASE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
This appeal is against the divergent finding in a suit
for partition. The plaintiffs filed an appeal before the First
Appellate Court and the First Appellate Court allowed the
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appeal and the matter is remanded to the Trial court, to
consider the question framed by the First Appellate Court.
The brief facts are as under:
2. One Channaveerappa and Bhimawwa had a son
by name Siddappa. Said Siddappa is the first defendant.
Ambawwa, the wife of Siddapa is the second defendant.
Kallappa and Parashuram are sons of Siddappa and
Ambawwa and Dundawwa are the daughter of Siddappa
and Ambawwa. Kallappa is no more and his wife Shobha
and children Ashwini, Akash and Chanaveerappa are the
plaintiffs.
3. The suit is filed against Siddappa, Ambawwa,
Parashuram the son of Siddapa and Ambawwa and
Dundawwa, the daughter of Siddappa and Ambawwa.
4 The defendants raised a contention that the suit
property is not the coparcenery property. The property
purchased by Bhimawwa under the registered sale deed
dated 25.11.1960 and after the death of Bhimawwa only
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Siddappa inherited the property as her class-I heir under
section 15(1)(a) Hindu Succession Act.
5. It is also relevant to note that during the
pendency of the suit, Siddappa sold the property to his
daughter Dundawwa - defendant No.7 under registered
sale deed dated 27.03.2015. The Trial Court has concluded
that the property is the self acquired property of Siddappa
and dismissed the suit.
6. Before the First Appellate Court an appeal filed
by the plaintiffs, it is urged that the sale deed in favor of
Dundawwa on 27.03.2015 is hit by the principle of
Lis pendense. The First Appellate Court accepted the said
contention and remanded the matter to the Trial Court to
consider whether the sale deed dated the 27.03.2015 is
hit by the doctrine of Lis pendense.
7. Aggrieved by the said order, the defendants are
before this court. The following substantial question of law
would arise for consideration:
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Whether the First Appellate Court is
justified in remanding the matter to the Trial
Court to consider the plea relating to validity of
the sale deed dated 27.03.2015, in the light of
section 53 of the Transfer of Property Act?
8. It is to be noticed that Section 53 of the
Transfer of Property Act does not bar the transfer of
property during the pendency of this suit. However, if the
transfer takes place during the pendency of the suit,
such transfer is subject to the result of the suit or
proceeding.
9. This being the position the First Appellate Court
ought to have decided, the appeal on merits. Only in case,
if the appellants succeed in the appeal, then the First
Appellate Court has to give a finding as to the right of the
purchaser of the property who has purchased the property
during the pendency of the suit. Without deciding the
appeal on merits, the First Appellate Court could not have
remitted the matter to the trial court to decide the
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question under Section 53 of the Transfer of Property Act.
For the aforementioned reasons, the following order is
made. Hence, the following:
ORDER
i. The appeal is allowed.
ii. The judgment and decree dated
25.10.2021 in RA No.07/2018 on the file of
the IV Additional District Judge, Vijayapur
are set aside.
iii. The matter is remitted to the First
Appellate Court to hear the appeal on
merits.
iv. It is made clear that this court has not
expressed any opinion on the merits of the
appeal pending before the First Appellate
Court.
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v. The parties shall appear before the First
Appellate Court on 14.10.2024.
vi. Registry to send the records to the First
Appellate Court.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
KBM
CT:PK
