Karnataka High Court
Smt.Tulasawwa W/O Prabhu @ Parappa ... vs Timmappa S/O Hanamappa Halaki on 27 March, 2025
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RSA No. 100433 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 27TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100433 OF 2019 (PAR-)
BETWEEN:
1. SMT. TULASAWWA
W/O. PRABHU @ PARAPPA BIRADAR PATIL,
AGE: ABOUT 59 YEARS,
OCC: HOUSE HOLD WORK & AGRICULTURE,
R/O. SHANKRATTI, TQ: ATHANI.
2. SMT. SARASWETEWWA
W/O. VENKAPPA PUJARI,
AGE: ABOUT 57 YEARS
OCC: HOUSE HOLD WORK,
R/O. TULASIGERI, TQ: BAGALKOT.
...APPELLANTS
(BY SRI. ARAVIND D. KULKARNI, ADVOCATE)
AND:
MOHANKUMAR
B SHELAR 1. TIMMAPPA S/O. HANAMAPPA HALAKI,
Digitally signed by
AGE: ABOUT 72 YEARS,
MOHANKUMAR B
SHELAR
Location: HIGH
OCC: RETIRED ENGINEER,
COURT OF
KARNATAKA
DHARWAD BENCH R/O. NTTF, RAMANAGAR, 5TH CROSS
DHARWAD.
2. BASAPPA S/O. HANAMAPPA HALAKI,
AGE: ABOUT 63 YEARS, OCC: AGRICULTURE,
3. LAXMAPPA S/O. HANAMAPPA HALAKI,
SINCE DECEASED BY LR'S.
3(A) ANNAKKA W/O. LAXMAN HALAKI,
AGE: 57 YEARS,
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RSA No. 100433 of 2019
OCC: HOUSEHOLD WORK & AGRICULTURE,
3(B) RAVI S/O. LAXMAN HALAKI,
AGE: 38 YEARS,
OCC: AGRICULTURE,
3(C) LAXMI W/O. VENKANGOUDA PATIL,
D/O. LAXMAN HALAKI,
AGE: 36 YEARS,
OCC: HOUSEHOLD WORK & AGRICULTURE,
3(D) MANJUNATH S/O. LAXMAN HALAKI,
AGE: 57 YEARS,
OCC: AGRICULTURE,
RESPONDENT NOS.#(A) TO (D) ARE
R/O. LOKAPUR, TQ: MUDHOL,
DIST: BAGALKOT.
4. ARJUN S/O. HANAMAPPA HALAKI,
AGE: ABOUT 58 YEARS,
OCC: AGRICULTURE,
5. SMT. PARVETEWWA W/O. AJJAPPA HALAKI,
AGE: ABOUT 65 YEARS
OCC: HOUSE HOLD WORK & AGRICULTURE,
6. SMT. MAHADEVI W/O. VITHAL DALAWAI,
AGE: ABOUT 41 YEARS, OCC: SERVICE,
RESPONDENT NOS.2 TO 6
R/O. LAXANATTI, TQ: MUDHOL.
7. SMT. PREMA W/O. TIMMAPPA HALAKI,
AGE: MAJOR
OCC: AGRIOCULTURE & HOUSEHOLD WORK,
R/O. NTTF, RAMANAGAR, 5TH CROSS,
DHARWAD.
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RSA No. 100433 of 2019
8. KRISHNA S/O. TIMMAPPA HALAKI,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. NTTF, RAMANAGAR, 5TH CROSS,
DHARWAD.
9. SMT. TIMMAWWA W/O. BASAPPA HALAKI,
AGE: MAJOR,
OCC: AGRICULTURE & HOUSEHOLD WORK,
R/O. LAXANATTI, TQ: MUDHOL.
...RESPONDENTS
(BY SRI. JAGADISH PATIL, ADVOCATE FOR C/R1 & R4;
SRI. L.M. KURAHATTI, ADVOCATE FOR R3(A-D);
SRI. ANAND DESAI, ADVOCATE FOR R2 & R9;
SRI. GIRISH YADWAD, ADVOCATE FOR R5 & R6)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC PRAYING TO THAT PRESENT APPEAL BE ALLOWED AND
SETTING ASIDE THE JUDGMENT & DECREE IN R.A.NO.51/2014
DATED 01.04.2019 PASSED BY 1ST ADDITIONAL DISTRICT AND
SESSION JUDGE, BAGALKOT (SITTING IN JAMKHANDI) AND BY
CONFIRMING JUDGMENT AND DECREE IN O.S.NO.02/2010 DATED
02.06.2014 PASSED BY SENIOR CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, MUDHOL; THE SUIT O.S. NO.2/2010 BE
DECREED.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
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RSA No. 100433 of 2019
ORAL JUDGMENT
This appeal is preferred by the plaintiffs assailing the
Judgment and Decree dated 01.04.2019 in R.A.No.51/2014 on
the file of I Addl. District and Sessions Judge, Bagalkot (Sitting
at Jamakhandi), allowing the appeal and setting aside the
Judgment and Decree dated 02.06.2014 in O.S.No.2/2010 on
the file of Senior Civil Judge and JMFC, Mudhol, decreeing the
suit of the plaintiff.
2. For the sake of convenience, parties are referred to
as per their ranking before the Trial Court.
3. It is the case of the plaintiffs that, plaintiffs and
defendant No.1 to 4 and another deceased brother Ajjappa
(husband of defendant No.5) were children of late Hanamappa.
It is stated that, the father of the plaintiffs - Hanamappa died
during 1975 and thereafter, their mother died during 2003,
leaving behind the suit schedule properties to be succeeded by
the plaintiffs and defendants. It is also stated that, the
defendant No.1 has filed O.S.No.66/1999 against the defendant
Nos.2 to 6 which came to be compromised and it is contended
that the same is not binding on the plaintiffs. Hence, plaintiffs
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filed O.S.No.2/2010, seeking partition and separate possession
in respect of the suit schedule properties.
4. On service of notice, the defendant Nos.1, 4, 7 and
8 filed written statement, admitting the relationship with the
plaintiffs, however, took up a contention that, the schedule
properties have been devolved as per compromise decree in
O.S.No.66/1999 and accordingly, sought for dismissal of the
petition. Defendant No.2, 3, 5, 6 and 9 filed separate written
statement by contending that some of the properties are
separate properties of defendants and accordingly, sought for
dismissal of the suit.
5. The Trial Court, after considering the material on
record, formulated the issues for its consideration.
6. In order to establish their case, plaintiffs have
examined two witnesses as P.W.1 and P.W.2 and produced 20
documents as Exs.P1 to P20. Defendants have examined four
witnesses as D.W.1 to D.W.4 and marked 64 documents as
Exs.D1 to D64.
7. The Trial Court, by its Judgment and Decree dated
02.06.2014, decreed the suit and being aggrieved by the same,
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the defendant Nos.1, 4, 7 and 8 have preferred
R.A.No.51/2014 before the First Appellate Court and the same
was contested by the plaintiffs. The First Appellate Court after
considering the material on record, by its Judgment and Decree
dated 01.04.2019, allowed the appeal and set aside the
Judgment and Decree in O.S.No.2/2010. Feeling aggrieved by
the same, the plaintiffs have preferred this appeal.
8. This Court, vide order dated 27.01.2021 formulated
the following substantial question of law:
"1. Whether the First Appellate Court is
justified in reversing the judgment and
decree passed by the Trial Court and
dismissing the suit on the ground of
limitation?
2. Whether Appellate Court is justified in
holding plaintiffs/present appellants are
bound by compromise decree in
O.S.No.66/1999 even though they were not
parties to that suit and decree?"
9. I have heard Sri. Aravind D. Kulkarni, learned
counsel appearing for the appellants, Sri. Jagadish Patil,
learned counsel appearing for Caveators/respondent No.1 and
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respondent No.4, Sri. L.M.Kurahatti, learned counsel appearing
for the respondent No.3(A to D), Sri. Anand Desai, learned
counsel appearing for the respondent Nos.2 and 9, and Sri.
Girish A. Yadwad, learned counsel appearing for the respondent
Nos.5 and 6.
10. It is contended by Sri. Aravind D. Kulakarni, learned
counsel appearing for the appellants that First Appellate Court
has committed an error in dismissing the suit without
considering the fact that the suit schedule properties are the
joint family properties of the plaintiffs and defendants and
further the plaintiffs were not the parties in O.S.No.66/1999
and the said aspect of the matter was not considered by the
First Appellate Court.
11. Per contra, Sri.Jagadish Patil, learned counsel
appearing for the respondents contended that, certain
properties, namely, Item No.5 and 8 of land property and
Sl.No.9 and 10 of house properties are the self-acquired
properties of the defendant No.1 and his son - Krishna and also
purchased by his wife. He further contended that defendant
No.1 retired as Assistant Executive Engineer on 31.07.2005 and
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the retirement benefits of defendant No.1 was invested for
purchase of Item No.5 and 8 of land property and Sl.No.9 and
10 of house properties and therefore those properties have to
be excluded from the joint family properties and accordingly
sought to justify the impugned judgment and decree passed by
Courts below.
12. In order to buttress his arguments, Sri.Jagadish
Patil, learned counsel appearing for the respondents places
reliance on the judgment of the Hon'ble Supreme Court in the
case of Marabasappa (Dead) by LRs. and Others vs.
Ningappa (Dead) by LRs. and Others reported in (2011) 9
SCC 451 and in the case of Bhagwat Sharan (Dead through
LRs.) vs. Purushottam and Others reported in (2020) 6
SCC 387.
13. In the light of the submissions made by the learned
counsel for the parties, I have carefully examined the finding
recorded by both the Courts below and perused the original
records.
14. In order to understand the relationship between the
parties, the genealogy of the parties is set out as below:
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Hanamappa (Dead)
Timmappa Basappa Laxmappa Arjun Tulasawwa Saraswatewwa
(D1) (D2) (D3) (D4) (P1) (P2)
Partwatewwa Prema Timmawwa
wife (D5) wife (D7) wife (D9)
Mahadevi Krishna
(D6) (D8)
15. Perusal of the genealogy would indicate that,
plaintiffs and defendant Nos.1 to 4 along with late Ajjappa
(husband of defendant No.5) are the children of Hanamappa
who died during 1975. The mother of the plaintiffs died during
2003. Perusal of the record would indicate that, there is no
division of joint family properties, however, a suit in
O.S.No.66/1999 was filed by defendant Nos.1 to 6 and in the
said suit, the plaintiffs were not parties to the said suit. The
said suit came to be decreed in terms of Compromise Decree.
Perusal of the finding recorded by both the Courts below would
indicate that, the said suit has been filed by the defendants to
deprive the legitimate right of the plaintiffs.
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16. Though the learned counsel appearing for the
respondents submitted that Item No.5 and 8 of land property
and Sl.No.9 and 10 of house properties are purchased in the
name of the wife and son of defendant No.1 through the
retirement benefits of defendant No.1, I have carefully
examined the records which makes it clear that Item No.5 -
land bearing Sy.No.22/2 was purchased in the name of the son
of defendant No.1 and land bearing Sy.No.22/3 was purchased
on 27.08.2005 in the name of the wife of defendant No.1,
however, the source of income for purchasing the same, is from
the joint family nucleus as the defendant no.1 has failed to
prove that the source of income is derived from his salary and
retirement benefits.
17. It is also to be noted that Sl.No.9 and 10 of house
properties were purchased on 12.03.1996 and 04.01.1993 in
the name of the wife of defendant No.1 and his son, however,
as on 1996 and 1993, the defendant No.1 was working as
Engineer in the Government service and has not shown any
records before the Courts below that he had invested
independently from his salary and if at all the defendant No.1
has invested for purchase of the aforementioned properties,
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same would have been intimated to the employer -
Government under the provisions of KCSR. In the absence of
the same, I do not find merit in the submission of the learned
counsel appearing for the respondents. In view of the
observations made above, the judgments referred to above by
the learned counsel appearing for the respondents, are not
applicable to the facts of the present case and therefore the
submission is not accepted.
18. Accordingly, I find force in the submission made by
the learned counsel for the appellants that the judgment and
decree in O.S.No.66/1999 is not binding on the plaintiffs as the
plaintiffs are not parties in the said suit. Following the
declaration of law made by the Hon'ble Supreme Court in the
case of Vineeta Sharma Vs. Rakesh Sharma and Others1,
the plaintiffs and defendant Nos.1 to 4 are entitled for equal
share i.e., 1/6th share each in the suit schedule property.
19. Accordingly, the substantial question of law famed
above favours the plaintiffs since the suit schedule properties
are not partitioned and are the joint family property and
AIR 2020 SC 3717
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therefore, the finding recorded by the Family Court, in
dismissing the suit on the ground of limitation is incorrect. It is
also to be noted that, the compromise decree in
O.S.No.66/1999 is not binding on the plaintiff and therefore,
the First Appellate Court has committed an error in interfering
with the suit schedule properties.
20. In the result, I pass the following:
ORDER
i) Appeal is allowed.
ii) Judgment and decree dated
01.04.2019 in R.A. No.51/2014 on the file of
I Additional District and Sessions Judge,
Bagalkote (sitting at Jamakhandi), is set
aside.
iii) Suit in O.S. No.2/2010 is decreed
holding that, the plaintiffs and defendant
Nos.1 to 4 are entitled for 1/6th share each
in the suit schedule properties.
Sd/-
(E.S.INDIRESH)
JUDGE
SAC
CT-MCK
