Karnataka High Court
Kallappa Shivappa Ainapur vs Hanamappa Shivappa Ainapur on 18 March, 2025
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NC: 2025:KHC-D:4992
RSA No. 100482 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 18TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100482 OF 2022 (PAR/POS-)
BETWEEN:
KALLAPPA SHIVAPPA AINAPUR,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O. BAIRANAHATTI VILLAGE,
TALUK: NARAGUND, DISTRICT: GADAG-582207.
...APPELLANT
(BY SRI. J.S. SHETTY ASSOCIATES, ADVOCATE)
AND:
1. HANAMAPPA SHIVAPPA AINAPUR,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O. BAIRANAHATTI VILLAGE,
TALUK: NARAGUND,
DISTRICT: GADAG-582207.
MOHANKUMAR
B SHELAR 2. KARABASAPPA SHIVAPPA AINAPUR,
Digitally signed by
AGE: 60 YEARS, OCC: AGRICULTURE,
MOHANKUMAR B
SHELAR R/O. BAIRANAHATTI VILLAGE,
Location: HIGH
COURT OF
KARNATAKA
DHARWAD BENCH
TALUK: NARAGUND,
DISTRICT: GADAG-582207.
3. DHARMARAJ SHIVAPPA AINAPUR,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O. BAIRANAHATTI VILLAGE,
TALUK: NARAGUND,
DISTRICT: GADAG 582207.
4. MALLAPPA SHIVAPPA AINAPUR,
AGE: 54 YEARS, OCC: AGRICULTURE,
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NC: 2025:KHC-D:4992
RSA No. 100482 of 2022
R/O. BAIRANAHATTI VILLAGE,
TALUK: NARAGUND,
DISTRICT: GADAG 582207.
5. ANASUYA W/O. VITHAL GANIGER,
AGE: 66 YEARS, OCC: HOUSEHOLD WORK,
R/O. KATAGERI VILLAGE, TALUK: BADAMI,
DIST: BAGALKOT-582207.
6. YAMANAPPA SHIVAPPA AINAPUR,
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O. BAIRANAHATTI VILLAGE,
TALUK: NARAGUND,
DIST. GADAG-582207.
...RESPONDENTS
(BY SRI. AHAMED ALI RAHIMAN SHAH, ADVOCATE FOR R1-R5;
SRI. S.S. BETURMATH, ADVOCATE FOR R6)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 PRAYING TO THAT THE JUDGMENT AND DECREE DATED
01.04.2021 PASSED BY THE PRINCIPAL JUDGE, FAMILY COURT,
GADAG, IN R.A.NO.45/2017 AND ALSO THE JUDGMENT AND
DECREE DATED 06.10.2017 IN O.S. NO.162/2015, PASSED BY THE
ADDITIONAL SENIOR CIVIL JUDGE, GADAG IN SO FAR AS IT
RELATES TO DISMISSAL OF THE SUIT IN RESPECT OF THE SUIT
SCHEDULE PROPERTIES MENTIONED AT SL.NO.2(A) TO 2(D) AND
2(F) ARE CONCERNED, MAY KINDLY BE SET ASIDE BY ALLOWING
THIS APPEAL AND DECREEING THE SUIT IN ITS ENTIRETY, WITH
COST THROUGHOUT, IN THE ENDS OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 100482 of 2022
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This Regular Second Appeal is filed by the plaintiff
No.1, challenging the judgment and decree dated
01.04.2021 passed in RA No.45/2017 on the file of the
Principal Judge, Family Court, Gadag (for short,
hereinafter referred to as 'First Appellate Court'),
dismissing the appeal and confirming the judgment and
decree dated 06.10.2017 passed in OS No.162/2015 on
the file of Additional Senior Civil Judge, Gadag (for short,
hereinafter referred to as 'Trial Court'), decreeing the suit
of the plaintiffs in part.
2. For the sake of convenience, the parties in
these appeals shall be referred to in terms of their status
and ranking before the trial Court.
3. It is the case of the plaintiffs that, the original
propositus - Shivappa Ainapur and Smt. Basawwa are the
parents of plaintiffs and defendants. Mother of the
plaintiffs - Basawwa died on 22.06.1996 and father of the
plaintiffs - Shivappa Ainapur died on 09.05.2015. It is the
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case of the plaintiffs that, suit schedule properties are the
ancestral properties of the plaintiffs and defendants and
some of the properties are granted by Land Tribunal to
the father of the plaintiffs and therefore, the plaintiffs are
entitled for share in the suit schedule properties. It is also
stated that, the defendant Nos.1 to 4 illegally entered
their names in the mutation register without consent of
the plaintiffs and accordingly, the plaintiffs have preferred
OS No.162/2015, seeking relief of partition and separate
possession in respect of the suit schedule properties.
4. After service of summons, the defendants
entered appearance and filed detailed written statement
denying the averments made in the plaint. It is the case
of the defendant No.4 that, the suit properties at Sl.No.2A
and 2C, 2E and 2F are the self acquired properties of
Shivappa Ainapur. Schedule properties at Sl.No.2B and
2D are the self acquired properties of defendant Nos.3
and 4 and accordingly, sought for dismissal of the suit. It
is also stated that, the father of the plaintiffs, has made
family arrangement in respect of his self acquired
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properties and Vardi was given to the Revenue Authorities
to change the entries and accordingly, sought for
dismissal of the suit.
5. On the basis of the rival pleadings, the Trial
Court has formulated issues for its consideration.
6. In order to establish their case, plaintiffs have
examined three witnesses as PW1 to PW3 and got marked
22 document as Exs.P1 to P22. On the other hand,
defendants have examined four witnesses DW1 to DW4
and produced 13 documents as Exs.D1 to D13.
7. The Trial Court, after considering the material
on record, by its judgment and decree dated 06.10.2017
decreeing the suit of the plaintiffs in part, holding that,
the plaintiffs are entitled for 1/7th share each in suit
schedule 2E, 2G and 2H properties and dismissed the suit
in respect of 2A to 2D and 2F. Being aggrieved by the
same, the plaintiff No.1 has preferred Regular Appeal in
RA No.45/2017 on the file of First Appellate Court and the
said appeal was resisted by the defendants. The First
Appellate Court after re-appreciating the facts on record,
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by its judgment and decree dated 01.04.2021 dismissed
the appeal and confirmed the judgment and decree
passed by the Trial Court in OS No.162/2015. Being
aggrieved by the same, the appellant/plaintiff No.1 has
preferred this Regular Second Appeal.
8. This Court vide order dated 10.06.2022
formulated the following substantial question of law.
"i) Whether both the Courts below
were justified in ignoring the rules of
succession provided under Sections 8 and
9 of the Hindu Succession Act, 1956?"
9. I have heard Sri. J. S. Shetty, learned counsel
appearing for the appellant, Sri. Ahamed Ali
Rahimanshah, learned counsel appearing for the
respondent Nos.1 to 5 and Sri. S. S. Beturmath, learned
counsel appearing for respondent No.6.
10. The learned counsel appearing for the
appellant contended that, all the suit schedule properties
belong to the father of the plaintiffs and defendants and
after the death of their father, all the children are entitled
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for equal share in the suit schedule properties and
accordingly, sought for interference of this Court.
11. It is also argued by the leaned counsel
appearing for the appellant that, though the defendants
have raised plea of family arrangement in the joint family
of Shivappa Ainapur, however, the defendants have not
proved the same with cogent evidence nor produced any
documents to prove the same, except the revenue
documents and therefore, sought for interference of this
Court.
12. Per Contra, learned counsel appearing for the
respondents submits that, both the Courts below rightly
dismissed the suit in respect of suit 2A to 2D and 2F as
those properties are acquired by the father of the
plaintiffs and there was a family arrangement during the
lifetime of the father of the plaintiffs and accordingly,
sought for dismissal of the appeal.
13. In the light of the submission made by the
learned counsel appearing for the parties, I have carefully
examined the finding recorded by both the Courts below
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and perused the record. In order to ascertain the
relationship between the parties as averred in the plaint,
the genealogy reads as under:
Shivappa
(died on 09.05.2015)
Basawwa (wife)
(died on 22.06.1996)
Anasuya Yamanappa Kallappa Hanamappa Karabasappa Dharmaraj Mallappa
def.5 plntf.2 plntf.1 def.1 def.2 def.3 def.4
14. On careful perusal of the genealogy would
indicate that, the plaintiffs and the defendants are the
children of Shivappa Ainapur and Basawwa. Parents of
the parties died leaving behind the plaintiffs and
defendants to succeed to the estate of late Shivappa
Ainapur. It is the case of the plaintiffs that, the plaintiffs
are entitled for equal share in all the suit schedule
properties and on the other hand, the case of the
defendants that there was family arrangement during the
lifetime of Shivappa Ainapur and in this regard, mutation
has been changed by the Revenue Authorities. In the
back drop of these aspect, on careful examination of the
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finding recorded by both the Courts below would indicate
that, no document has been produced to establish family
arrangement in the joint family of Shivappa Ainapur.
Vardi has been given to the Revenue Authorities for
change of mutation in favour of the sons of Shivappa
Ainapur. The said document cannot be considered as the
family arrangement unless, the defendants establish
through cogent material that, the family arrangement has
been made and same has to be substantiated with cogent
evidence. It is also to be noted that, after the death of
Shivappa Ainapur on 09.05.2015, all the properties stood
in the name of late Shivappa Ainapur shall be devolved
amongst all the children and therefore, the Trial Court
has committed an error in excluding the suit properties
namely 2A to 2F. The said aspect of the matter was not
properly assessed by the First Appellate Court as required
under Order 41 Rule 31 of CPC and therefore, I find force
in the submission made by the learned counsel appearing
for the appellant that, the appellant/plaintiff No.1 has
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made out a case for interference and substantial question
of law framed above favours the plaintiffs.
15. Accordingly, plaintiffs and defendants are
entitled for 1/7th share each in the suit schedule
properties.
16. In the result, I pass the following:
ORDER
i) Appeal is allowed.
ii) Judgment and decree dated 01.04.2021 in
RA No.45/2017 on the file Principal Judge,
Family Court, Gadag, is hereby set aside.
iii) Judgment and decree dated 06.10.2017
in OS No.162/2015 on the file of Additional
Senior Civil Judge, Gadag, is set aside in
respect of suit properties 2A to 2F.
iv) Suit of the plaintiffs is decreed holding
that the plaintiffs and the defendants are
entitled for 1/7th share each in the suit
schedule properties.
Sd/-
(E.S.INDIRESH)
JUDGE
