Karnataka High Court
Smt.Savakka vs Shri.Vitthal on 10 September, 2024
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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RFA No. 100073 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 100073 OF 2016 (DEC)
BETWEEN:
1. SMT. SAVAKKA
W/O. KAREPPA CHANDARAGI
SINCE DECEASED BY LRS
1A) KAREPPA KALLAPPA CHANDARAGI
AGE: 80 YEARS, OCC: AGRICULTURE,
1B) SHIVAPPA KAREPPA CHANDARAGI
AGE: 45 YEARS, OCC: AGRICULTURE,
1C) MAYYAVVA KAREPPA CHANDARAGI
AGE: 40 YEARS, OCC: HOSUEHOLD,
1D) SADANAND KAREPPA CHANDARAGI
Digitally signed
by YASHAVANT
NARAYANKAR
AGE: 37 YEARS, OCC: AGRICULTURE,
Location: HIGH
COURT OF
KARNATAKA 1E) LAXMI KAREPPA CHANDARAGI
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
1F) BASAPPA KAREPPA CHANDARAGI
AGE: 30 YEARS, OCC: AGRICULTURE,
ALL ARE R/O. MUGALIHAL, TAL. SAUNDATTI,
DIST. BELAGAVI 591106.
...APPELLANTS
(BY SRI. VITTHAL S. TELI, ADVOCATE)
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RFA No. 100073 of 2016
AND:
1. SHRI. VITTHAL S/O. BASAPPA TORGAL,
AGE: ABOUT 45 YEARS, OCC: AGRICULTURE,
R/O: MUGALIHAL, TAL: SAUNDATTI,
DIST: BELAGAVI-591106.
2. MALLAPPA S/O. BASAPPA TORGAL,
AGE: ABOUT 43 YEARS, OCC: AGRICULTURE,
R/O: MUGALIHAL, TAL: SAUNDATTI,
DIST: BELAGAVI-591106.
3. REVAPPA S/O. BASAPPA TORGAL,
AGE: ABOUT 40 YEARS, OCC: AGRICULTURE,
R/O: MUGALIHAL, TAL: SAUNDATTI,
DIST: BELAGAVI-591106.
4. CHIDANAND S/O. BASAPPA TORGAL,
AGE: ABOUT 38 YEARS, OCC: AGRICULTURE,
R/O: MUGALIHAL, TAL: SAUNDATTI,
DIST: BELAGAVI-591106.
5. SMT. KENCHAWWA
W/O. SHANMUKH MALAKANNAVAR,
AGE: ABOUT 36 YEARS, OCC: HOUSEWIFE,
R/O: KADABI, TAL: SAUNDATTI,
DIST: BELAGAVI-591129.
6. SMT. LAKSHMAVVA
W/O. GURUNATH MALAKANNAVAR,
AGE: ABOUT 34 YEARS, OCC: HOUSEWIFE,
R/O: KADABI, TAL: SAUNDATTI,
DIST: BELAGAVI-591129.
7. SMT. SAKREVVA
W/O. LAXMANNA MAVINAGIDAD,
AGE: ABOUT 32 YEARS, OCC: HOUSEWIFE,
R/O: KALLIGUDDI, TAL: GOKAK,
DIST: BELAGAVI-591227.
8. SMT. SHARAVVA
W/O. ADAVEPPA SINGADI,
AGE: ABOUT 33 YEARS,
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RFA No. 100073 of 2016
OCC: HOUSEWIFE,
R/O: MAMADAPUR,
TAL: GOKAK,
DIST: BELAGAVI-591233.
9. SMT. KASTURI
W/O. ARJUN KABADHAGOL,
AGE: ABOUT 31 YEARS, OCC: HOUSEWIFE,
R/O: NINGAPUR, TAL: GOKAK,
DIST: BELAGAVI-591115.
10. SMT. SHANTAVVA
W/O. MUTTEOOA DALAWAI,
AGE: ABOUT 29 YEARS,
OCC: HOUSEWIFE,
R/O: MUGALIHAL,
TAL: SAUNDATTI,
BELAGAVI-591106.
11. LAKKAVVA W/O. BASAPPA TORGAL,
AGE: ABOUT 60 YEARS,
OCC: AGRICULTURE,
R/O: MUGALIHAL, TAL: SAUNDATTI,
BELAGAVI-591106.
12. IRAPPA S/O. KALLAPPA TORGAL,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: MUGALIHAL, TAL: SAUNDATTI,
BELAGAVI-591106.
13. SMT. PARAVVA
S/O. SHIVARAYAPPA VANAJOL,
AGE: ABOUT 55 YEARS,
OCC: HOUSE WIFE,
R/O: HOSUR, (POST-CHIPPALKATTI)
TAL: RAMDURG, DIST: BELAGAVI-591123.
14. SHRI. YALLAPPA
SANNAKENCHAPPA DALAWAI,
SINCE DECEASED BY LRS,
14A) MUKKAWWA YALLAPPA DALAWAI
AGE: 70 YEARS, OCC: HOUSEHOLD WORK,
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RFA No. 100073 of 2016
14B) MANJUL HANAMANTH DALAWAI
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
14C) PRAVEEN HANAMANTH DALAWAI
AGE: 15 YEARS, OCC: AGRICULTURE,
14D) PRAJWAL HANAMANTH DALAWAI
AGE: 12 YEARS, OCC: AGRICULTURE,
RESPONDENT NO. 14(C) AND 14(D) ARE MINORS
R/BY RESPONDENT NO. 14(B)
ALL ARE R/O: MUGALIHAL,
TAL: SAUNDATTI,
BELAGAVI-591106.
15. SHRI. YALLAPPA
S/O. BHIMIAPPA ANEPPAGOL,
AGE: ABOUT 45 YEARS,
OCC: AGRICULTURE,
R/O: MUGALIHAL,
TAL: SAUNDATTI,
BELAGAVI-591106.
...RESPONDENTS
(BY SRI. SANTOSH B. MALLIGWAD, ADVOCATE FOR
SRI. P.N. HATTI, ADVOCATE FOR R1, R2 AND R4 TO R8;
SRI. PRASHANT S. HOSAMANI, ADVOCATE AS GUARDIAN FOR
R14(C AND D) R14 APPEAL STANDS ABATED,
R14A NOTICE HELD SUFFICIENT;
R3, R9, R12, R13, R14(B) SERVED AND UNREPRESENTED)
THIS RFA IS FILED UNDER SEC. 96 R/W. ORDER 41
RULE 1 OF CPC 1908, AGAINST THE JUDGMENT AND DECREE
DATED:20.02.2016 PASSED IN O.S.NO.74/2013 ON THE FILE
OF THE SENIOR CIVIL JUDGE, SAUNDATTI, DISMISSING THE
SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
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RFA No. 100073 of 2016
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
Being aggrieved by the judgment and decree in
O.S.No.74/2013 dated 20.02.2016 by the learned Senior
Civil Judge, Savadatti (for short "the Trial Court")
2. The parties are referred as per their ranking
before the civil Court for the sake of convenience.
3. The factual matrix as required for this appeal is
as under:
The plaintiff-Smt. Savakka, defendant No.12-Irappa,
defendant No.13-Paravva and also the husband of defendant
No.11 by name Basappa, are the children born to the
propositus-Kallappa through his first wife-Paravva and
second wife-Uddavva. Defendants 1 to 10 are the children of
Basappa and defendant No.11. The plaintiff contends that
the suit schedule properties are the ancestral properties of
the plaintiff and defendants held by the propositus-
Kallappa, who was the Karta of the family. After his death,
his first son used to look after the family properties in his
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capacity as Karta. The plaintiff contends that there was no
partition between the plaintiff, the said Basappa, Irappa and
Paravva, who are the children of Kallappa. After the death of
Basappa, it was defendant No.1-Vittal, who was looking after
the affairs of the family as a Karta. Therefore, the plaintiff
and the defendants were in joint possession and enjoyment
of the suit schedule properties. The plaintiff has neither
relinquished her share nor given up her rights in the suit
schedule properties and only for the purposes of
convenience, the family members are messing separately
and cultivating different pieces of the properties. It is alleged
by the plaintiff that in order to defeat the legitimate share of
the plaintiff, the defendants have created certain documents
in collusion with defendants 14 and 15 styled as 'sale deeds'
behind her back and therefore, such documents are not
binding on her. She also contended that there was no legal
necessity for the family to sell any of the properties and on
coming to know all the illegal acts of the defendants, the
plaintiff asked her share but the same was denied by the
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defendants and as such she was constrained to file a suit for
partition.
4. The defendants 1 and 5 to 11 appeared through
their counsel and the written statement of defendant No.1
was adopted by defendants 5 to 11. The other defendants
either did not file any written statement or did not appear to
contest the suit.
5. The defendants 1 and 5 to 11 contended that
Kallappa had two wives i.e. Paravva and Uddavva and
Basappa is the son born to Paravva and after the death of
Paravva, Kallappa married Uddavva and from her, the
plaintiff and defendants 12 and 13 were born. It is
contended that the defendants 1 and 12 have partitioned the
family properties equally among themselves in the year 1969
during the lifetime of Kallappa and in the said partition,
Survey Nos.47, 29, 51/1+2, 52, 32, 49 and 50/1+2 (which
are item Nos.1, 4 to 9 properties in the schedule) were
partitioned and revenue entries were effected to that effect.
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As per the said partition, the land measuring 15 acres
23 guntas in Survey No.47 was given to Kallappa for his
maintenance during his lifetime. The remaining properties
measuring 21 acres 1 gunta in Survey No.29, 13 acres 8
guntas in Survey No.51/1+2, 12 acres 17 guntas in Survey
No.52 were given to the share of Basappa; and the land
measuring 13 acres 17 guntas in Survey No.32, 11 acres 30
guntas in Survey No.49, 13 acres 8 guntas in Survey
No.50/1+2 were given to the defendant No.12. Accordingly,
M.E.No.1677 was certified recognizing the said partition. The
defendant No.13 and the plaintiff had expressed their
consent for certification of the said mutation entry and
therefore, the said partition is within the knowledge of the
plaintiff. Later, Basappa died on 21.12.2007 and after his
demise, defendants 1 to 4, 6 and 7 got their names entered
in the revenue records with the consent of the other
defendants. It is stated that Kallappa had died on
21.12.1999 and since then the defendants are in enjoyment
of the properties as per the partition of the year 1969 itself.
Therefore, the plaintiff despite having such knowledge of the
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said partition deliberately has filed false suit after the death
of Kallappa as well as Basappa and therefore, the suit
deserves to be dismissed. Inter alia they have also contended
that Basappa has executed registered sale deeds in favour of
defendants 14 and 15 for his family necessities and as such,
the property measuring 4 acres 25 guntas in Survey No.29
and Survey No.29/2 are not available for partition. So far as
the house properties are concerned, it is stated that VPC
No.721 is the self-acquired property of the defendant No.1
granted by the government in the name of his wife.
6. The defendant No.12 filed her written statement
supporting the case of the plaintiff. On the basis of the
above pleadings, the Trial Court framed following issues:
1. Whether the plaintiff proves that the suit schedule
properties are the ancestral properties of herself
and the defendants liable for partition?
2. Whether the plaintiff proves that she is entitle for
share in the suit schedule properties?
3. Whether the defendant No.1, 5 to 11 prove the
partition of the year 1969?
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4. Whether the defendant No.1 proves that suit of
the plaintiff is bad for non-joinder of necessary
parties?
5. Whether the plaintiff is entitle for the relief of
partition and separate possession as prayed for?
6. What decree or order?
7. The plaintiff was examined as PW1 and Ex.P1 to
14 were marked on her behalf and defendant No.1 was
examined as DW1 and Ex.D1 to 108 were marked. Though
ample opportunities were given to the plaintiff, the
defendant No.1 was not cross-examined. After hearing the
arguments, the Trial Court answered issue Nos.1, 2 and 5 in
the negative and issue Nos.3 and 4 in the affirmative and
dismissed the suit. Being aggrieved by the said judgment,
the plaintiff is before this Court in appeal.
8. On issuance of notice by this Court, respondents
1, 2 and 4 to 8 have appeared through their counsel and the
legal representatives of respondent No.14 were brought on
record. The respondent No.14(c) and 14(d) being minors, a
court guardian was appointed since respondent No.14 did
not appear before the Court. The other respondents
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remained unrepresented despite service of notices. The Trial
Court records have been secured and by consent of both the
parties, the appeal is taken up for final disposal at the stage
of admission itself.
9. The learned counsel for the appellant, Sri. Vittal
S. Teli would submit that the propositus-Kallappa was a
holder of the suit schedule properties and during his
lifetime, he could not have partitioned the suit schedule
properties only among himself and his two sons. The
plaintiff-Savakka and the defendant No.13-Paravva were the
daughters of Kallappa and therefore, they also had a share
in the suit schedule properties. He submits that the alleged
partition of the year 1969 did not include the plaintiff and
defendant No.13 and as such, it is not binding on the
plaintiff. It is submitted that the Trial Court erred in holding
that the appellant-plaintiff knew and had a full knowledge of
the partition of the year 1969 and therefore, she is not
entitled for the partition. He submits that the plaintiff was
also entitled for equal share in the suit schedule properties
and therefore, the reasoning assigned by the Trial Court in
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dismissing the suit of the plaintiff for relief of partition is not
sustainable in law. His second prong of the argument would
be that even if the Trial Court holds that there was a
partition in the year 1969, the property allotted to the
propositus-Kallappa in the form of Survey No.47 could not
have been distributed only among the two sons i.e. Basappa
and Irappa. When the property devolved upon the death of
Kallappa, his individual property would have to devolve
upon the plaintiff and the defendant No.13 also and
therefore, on this count also the impugned judgment of the
Trial Court is not sustainable in law.
10. Per contra, the learned counsel Sri. P. N. Hattti,
appearing for the respondents 1, 2, 4 to 8 and Sri. Prashant
Hosamani, the learned counsel and Court guardian,
appearing for the respondent No.14(c) and (d) would submit
that much water has flown after the partition in the year
1969. He points out that a portion of the suit schedule
property has been sold to defendants 14 and 15 and
therefore, when the plaintiff had not at all objected for such
alienation, and such alienations being within the knowledge
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of the plaintiff, she cannot take shelter under the ground
that she had a share in the property and therefore, the
alienations are not binding on her. Moreover, the admissions
of the plaintiff in the cross-examination would clearly
establish that she had the full knowledge of the partition
that had taken place in the year 1969 and the separate
enjoyment of the properties by Basappa and Irappa.
Therefore, they contend that the dismissal of the suit is
proper and correct.
11. In view of the rival contentions urged before this
Court, the points that arise for consideration are;
i) Whether the trial Court is justified in holding
that the plaintiff knew about the partition and
separate enjoyment of the suit property
among her father-Kallappa and his two sons
Basappa and Irappa and as such, she could
not have claimed the partition?
ii) Whether the plaintiff is entitled for a partition
in respect of the property allotted to the share
of Kallappa by virtue of succession?
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12. A perusal of the cross-examination of the PW1
would clearly indicate that the plaintiff knew about the
partition among Kallappa and his two sons Basappa and
Irappa. She also admits that Basappa happens to be the son
of the first wife of Kallappa and the plaintiff, Irappa and
Paravva are born to the second wife of Kallappa. It is also
pertinent to note that in the cross-examination, she
categorically admits that Survey No.47 measuring 15 acres
24 guntas was kept by Kallappa for his share in the partition
of 1969. Though she pleads ignorance about the Mutation
Entry No.1677, her admission about retention of the
property bearing Survey No.47 measuring 15 acres 24
guntas by Kallappa is clear. Further, in the cross-
examination, she does not deny the fact that 13 acres 8
guntas in Survey No.51/1, 12 acres 17 guntas in Survey
No.52, and 21 acres 1 gunta in Survey No.29 had fallen to
the share of the Basappa. She says that it is not proper.
Similarly, she does not deny that the remaining property
had fallen to the share of her another brother Irappa. She
also did not deny that they have been in enjoyment of the
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property accordingly. However, she says that at the time of
the partition, her father was alive and that she was not
consulted at the time of the partition. In the cross-
examination she also admits that the defendant No.1 has
sold portion of the property about 4-5 years back and
Basappa has sold the property about 7 years back. She also
admitted that VPC No.721 had been allotted to the wife of
Vittal viz., Mahadevi and she is in possession of the same.
13. This admission of the PW1 in the cross-
examination clearly shows that in the year 1969 there was a
partition among Kallappa and his two sons, who constituted
a co-parcenary at that time.
14. A perusal of the Ex.D90, which contains a
Mutation Entry No.1677, would show that an amicable
partition was effected among Kallappa, Basappa and Irappa,
and Kallappa had retained Survey No.47 measuring 15 acres
23 guntas for himself and the remaining properties were
divided among Basappa and Irappa. The mutation entry was
certified on 02.07.1969.
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15. Thus, it is evident from the testimony of the PW1
and Ex.D90 that when there was division in the property in
the year 1969, the plaintiff knew about the said partition
and she did not deny that the parties are in enjoyment of the
suit schedule properties as per the said partition. She says
that it may be true that there was such partition. Thus, it is
clear that there was a partition in the year 1969 and the
plaintiff had full knowledge of such partition. Under these
circumstances, when there was a partition among the
members of coparcenery in the year 1969, the plaintiff could
not raise a claim for which she had given her consent at that
time and remained silent for all these years.
16. In the light of the above factual circumstances,
which are borne out of the evidence on record, the fact that
the defendants have not led any evidence to prove the
partition does not receive any significance. Even though
DW1 has not offered himself for cross-examination, which
also is disputed by the defendants saying that even though
the DW1 was present and his cross-examination was taken
as nil, it would recede to insignificance in view of the
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categorical admissions made by the PW1 in her cross-
examination.
17. The next point that arise for consideration would
be whether Basappa and Irappa could have kept the
plaintiff-Savakka and defendant No.13-Paravva out of the
partition in respect of the property held by Kallappa.
Evidently, when there was a partition among the members of
the coparcenery in the year 1969, the said Kallappa also had
retained Survey No. 47 and therefore, when Kallappa died in
the year 1999, the property held by him would devolve in
terms of Section 8 of the Hindu Succession Act. Therefore, in
the said property held by Kallappa; the plaintiff, defendant
No.12, 13 and Bassappa would get equal share. In that view
of the matter, the plaintiff and the defendant No.13 would
get 1/4th share each in Survey No.47 which had fallen to the
share of Kallappa.
18. Further, it is also admitted fact that the plaintiff
is married and she is living separately and therefore, there
cannot be any claim in respect of property, which is a
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dwelling house. Hence, the points raised above are answered
accordingly and the appeal deserves to be allowed in part.
Hence, the following:
ORDER
i) The appeal is allowed in part.
ii) The impugned judgment and decree dated
20.02.2016 passed in O.S.No.74/2013 by
the learned Senior Civil Judge, Savadatti is
hereby modified.
iii) The plaintiff and defendant No.13 are
entitled to 1/4th share each in Survey No.47
i.e. item No.7 of suit schedule-B, which had
fallen to the share of Kallappa; and insofar
as the claim of the plaintiff in respect of
remaining properties is rejected.
iv) Draw preliminary decree accordingly.
Sd/-
(B.M.SHYAM PRASAD)
JUDGE
Sd/-
(C M JOSHI)
JUDGE
