Karnataka High Court
Kallappa Mallappa Khinnavar vs Shrishail Mallappa Khinnavar on 28 January, 2025
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NC: 2025:KHC-D:1665
RSA No. 100839 of 2014
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100839 OF 2014 (-)
BETWEEN:
KALLAPPA MALLAPPA KHINNAVAR,
AGE: 62 YEARS, OCC: NIL,
R/O. MAHAVEER NAGAR, CHIKODI
DIST: BELAGAVI-591201.
A1a. SMT. MANDA
W/O. KALLAPPA KHINNAVAR,
AGE: 59 YEARS,
OCC: HOUSEHOLD WORK,
RESIDENT OF #4076/9,
ESHWAR NILAYA, 7TH CROSS,
MCC BLOCK B,
DAVANAGERE - 577004.
A1b. SMT. POONAM
D/O. KALLAPPA KHINNAVAR,
AGE: 39 YEARS, OCC: DOCTOR,
RESIDENT OF #4076/9,
ESHWAR NILAYA,
MANJANNA
E 7TH CROSS, MCC BLOCK B,
Digitally signed by
MANJANNA E
DAVANAGER - 577004.
Location: High Court of
Karnataka, Dharwad Bench
Date: 2025.02.01 11:43:09
+0530
A1c. SMT. AMRUTA
W/O. KALLAPPA KHINNAVAR,
AGE: 59 YEARS,
OCC: HOUSE HOLD WORK,
RESIDENT OF #4076/9, ESHWAR NILAYA,
7TH CORSS, MCC BLOCK B,
DAVANAGERE - 577004.
...APPELLANTS
(BY SRI. A P MURARI AND SRI.L M KURAHATTY AND SMT. DEEPA
UDIYAR, ADVOCATES)
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NC: 2025:KHC-D:1665
RSA No. 100839 of 2014
AND:
1. SHRISHAIL MALLAPPA KHINNAVAR,
AGE: 55 YEARS,
OCC: AGRICULTURE and BUSINESS,
R/O.HUDDAR GALLI, CHIKODI,
DIST: BELAGAVI-591201.
(SINCE DEAD BY HIS LRS)
1a. SMT. KALYANI
W/O. SHRISHAIL KHINNAVAR,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O.NO.662, HUDDAR GALLI,
CHIKODI - 591201
DISTRICT: BELAGAVI.
1b. SHRI. SHREYAS
S/O. SHRISHAIL KHINNAVAR,
AGE: 28 YEARS, OCC: SERVICE,
R/O. NO.662, HUDDAR GALLI,
CHIKODI - 591201,
DISTRICT: BELAGAVI.
1c. SMT. PRIYANKA
D/O. SHRISHAIL KHINNAVAR,
AGE: 25 YEARS, OCC: HOUSEHOLD,
R/O. NO.662, HUDDAR GALLI,
CHIKODI- 591201,
DISTRICT: BELAGAVI
1d. SMT. SWETA
D/O. SHRISHAIL KHINNAVAR,
AGE: 24 YEAR, OCC: HOUSEHOLD,
R/O.NO.662, HUDDAR GALLI,
CHIKODI- 591201,
DISTRICT: BELAGAVI
2. SADASHIV GHATAGAYYA HIREMATH,
AGE: 52 YEARS,
OCC: ADVOCATE and AGRICULTURE,
R/O.HUDDAR GALLI,
TMC NO.663, CHIKODI,
DIST: BELAGAVI -591201
3. MARUTI S/O. VITHAL MUSALE,
AGE: 64 YEARS, OCC: PHYSICIAN,
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NC: 2025:KHC-D:1665
RSA No. 100839 of 2014
R/O: OLD COURT LANE,
NEAR TMC OFFICE,
CHIKODI, DIST: BELAGAVI.
4. SAU. REKHA W/O. MARUTI MUSALE,
AGE: 53 YEARS,
OCC: HOUSEHOLD WORK,
R/O: NEAR TMC OFFICE, CHIKODI,
DIST: BELAGAVI.
5. DR. JAYALAXMI
D/O. MARUTI MUSALE,
AGE: 28 YEARS,
OCC: MEDICAL PRACTITIONER,
R/O: NEAR TMC OFFICE, CHIKODI,
DIST: BELAGAVI.
6. DR. ABHIJIT S/O MARUTI MUSALE,
AGE: 26 YEARS,
OCC: STUDENT,
R/O: NEAR TMC OFFICE, CHIKODI,
DIST: BELAGAVI.
...RESPONDENTS
(R1- DECEASED;
SRI. D.H.PASTAY, ADVOCATE FOR R2 TO R6;
R1 (A)- SERVED UNREPRESENTED;
R1(B) & R1(C) AND R1 (D) - HELD SUUFFICIENT)
------
THIS RSA IS FILED UNDER SECTION 100 READ WITH ORDER
XLII RULE 1 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO SET
ASIDE THE COMMON JUDGMENT AND DECREE DATED 26.09.2014 IN
R.A.NO.19/2012 AND 33/2012 PASSED BY THE LEARNED
VII ADDITIONAL DISTRICT JUDGE, BELGAUM, AT CHIKODI,
PRODUCED AT ANNEXURE-A&A1 AND ALLOW FDP NO.7/2010 AND
R.A.NO.19/2012 FULLY AND THIS SECOND APPEAL WITH COSTS
THROUGHOUT, BY ALLOTTING ½ (HALF) SHARE EQUALLY TO
APPELLANT-DEFENDANT NO.1 KALLLAPPA AND TO RESPONDENT
NO.1 DEFENDANT NO.3 SHRISHAIL IN PROPERTY BEARING TMC
NO.483/A COMPRISING CTS NOS.1903, 1904 AND 1905 AND IN TMC
NO.854/673 OF CHIKODI, SUBJECT TO ADJUSTMENT OF EQUITIES,
VIZ., NORTHERN PORTION OF TMC NO.483/A BE ALLOTTED TO THE
SHARE OF THE APPELLANT-DEFENDANT NO.1 KALLAPPA, IN A
PORTION OF WHICH THE PURCHASER RESPONDENT NO.2
DEFENDANT NO.4 S.G. HIREMATH, IS ALREADY IN POSSESSION.
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RSA No. 100839 of 2014
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is preferred by the petitioner, challenging the
judgment and decree dated 26.09.2014 in RA No.19/2012 on
the file of VII Additional District and Sessions Judge, Belagavi
sitting at Chikodi (for short, hereinafter referred to as 'First
Appellate Court'), dismissing the appeal and setting aside the
judgment and decree dated 12.12.2011 in FDP No.7/2010 on
the file Senior Civil Judge, Chikodi (for short, hereinafter
referred to as 'FDP Court').
2. For the sake of convenience, the parties are
referred to as per their ranking before the FDP Court.
3. It is the case of the petitioner in FDP No.7/2010
that one Smt. Ratnakka had two children namely Kallappa and
Shrishail. The said Ratnakka had filed OS No.27/2001 seeking
relief of partition and separate possession in respect of the
schedule property. In the meanwhile the defendant No.3 in OS
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No.27/2001 (Shrishail Mallappa Khinnavar) has sold portion of
the land in favour of the respective defendants in the suit.
4. The Trial Court after considering the material on
record decreed the suit on 13.11.2009 holding that the plaintiff
(Smt. Rantakka) and her children Kallappa Mallappa Khinnavar
(defendant No.1) and Shrishail Mallappa Khinnavar (defendant
No.3) are entitled for 1/3rd share each in the schedule
properties and the defendant Nos.4, 5 and 11 to 13 are
entitled for share of the defendant No.1, wherein, they have
already purchased the joint share of defendant No.1 in the suit
properties except TMC No.6054/328. The said judgment and
decree dated 13.11.2009, has been confirmed by the First
Appellate Court in RA No.116/2010 and same reached finality.
Thereafter, the defendant No.1 (Kallappa Mallappa Khinnavar)
filed FDP No.7/2010 under Section 54 of CPC. The original
plaintiff - Smt. Ratnakka died on 04.01.2010. The Trial Court
appointed a Court Commissioner to divide the property in terms
of the judgment and decree in OS No.27/2011 and as such the
Trial Court by judgment and decree dated 12.12.2011 decreed
the petition in part holding that the defendant No.3 has
developed the property and right of the defendant No.3 is
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subject to the decree that may be obtained by the legatee of
Smt. Ratnakka in OS No.188/2012. Feeling aggrieved by the
same, defendant No.1 and defendant No.3 (sons of Smt.
Ratnakka) had preferred RA No.19/2012 and RA No.33/2012,
wherein, the First Appellate Court, by judgment and decree
dated 13.07.2012, remanded the matter to the Trial Court for
fresh consideration. Feeling aggrieved by the same, the
defendant No.3 has filed MSA No.651/2012 and MSA
No.652/2012 before this Court, and this Court by judgment and
decree dated 05.02.2014 allowed the appeals and set aside the
judgment and decree dated 13.07.2012 in RA No.19/2012 and
RA No.33/2012 wherein the First Appellate Court has remanded
the matter to the Trial Court. After the conclusion of the
proceedings before this Court in MSA No.651/2012 and MSA
No.652/2012, the Appellate Court heard the parties and by
common judgment and decree dated 26.09.2014 dismissed RA
No.33/12 and partly allowed the appeal in RA No.19/2012.
Feeling aggrieved by the same, the present appeal is preferred.
5. This Court by order dated 06.09.2017 formulated
the following substantial question of law.
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"Whether the First Appellate Court is
illegally justified in excluding an extent of 8 ft. 9
inches in CTS No.1904 as shown by letter IJEF,
while allotting the shares to defendants No.1
and 3, pursuant to the preliminary decree
passed in O.S.No.27/2001?"
6. Heard Sri. A.P. Murari, learned counsel appearing
for the appellants and Sri. D.H. Pastay, learned counsel
appearing for the respondents.
7. Sri. A.P. Murari, learned counsel appearing for the
appellant submitted that both the Courts below have committed
an error on erroneous assumption that the 1/3rd share of
Ratnakka has been kept intact and subject to the approval of
the Competent Court in respect of the Will said to have been
executed by Smt. Ratnakka in favour of one Shreyas (son of
Shrishail). He further contended that, the finding recorded by
both the Courts below requires re-appreciation since, the
defendant Nos.1 and 3 are entitled for ½ share in the suit
schedule properties as the mother of defendant Nos.1 and 3
died and as such sought for interference of this Court.
8. Per contra, Sir.D.H. Pastay, learned counsel
appearing for the respondents vehemently contended for
disposal of the appeal.
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9. In the light of the submission made by the learned
counsel appearing for the parties, it is not in dispute that
originally the property was divided amongst Smt. Ratnakka and
her children (Kallappa Mallappa Khinnavar and Shrishail
Mallappa Khinnavar) as per the judgment and decree dated
13.11.2009 in OS No.27/2001 and wherein, 1/3rd of the
schedule properties were devolved accordingly. Thereafter, the
said judgment and decree in OS No.27/2001 was confirmed in
RA No.116/2010 on the file of II Additional District Judge,
Belagavi. It is also not in dispute that Ratnakka - original
plaintiff died on 04.01.2010 and therefore, the schedule
property has to be divided equally between her children namely
Kallappa Mallappa Khinnavar and Shrishail Mallappa Khinnavar.
The said aspect of the matter was not considered by both the
Courts below and therefore, I find force in the submission made
by the learned counsel appearing for the appellant that the
division of the property under Section 54 of CPC has to be
made in accordance with the changed circumstances of fact as
original plaintiff died and her entire 1/3rd share shall be
devolved among her two children. Hence, the finding recorded
by both the Courts below requires to be interfered with in view
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of the changed circumstances and the said aspect has been
ignored by both the Courts below. Accordingly, the devolution
of the property is to be made in accordance with the legal
entitlement of the defendant Nos.1 and 3 taking into
consideration the death of their mother-Ratnakka. Therefore,
the substantial question of law framed above is to be answered
by remanding the matter to the FDP Court in FDP No.7/2010 to
determine the shares of the parties as observed above.
10. In the result, l pass the following:
ORDER
1. Appeal is allowed.
2. Judgment and decree dated 12.12.2011
in FDP No.7/2010 and the judgment and
decree dated 13.07.2012 in RA
No.33/2012 are hereby set aside and
matter is remanded to the FDP Court in
FDP No.7/2010 to allot the share of the
parties in view of the observation made
above. All contentions of the parties are
kept open.
Sd/-
(E.S.INDIRESH)
JUDGE
SMM
