Karnataka High Court
Sri. Ramanayak S/O. Dharamanayak Patil vs Smt. Sumitra W/O. Ramanayak Patil on 4 November, 2025
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RFA No. 100284 of 2018
C/W RFA.CROB No. 100010 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 4TH DAY OF NOVEMBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE R.NATARAJ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100284 OF 2018 (PAR/POS)
C/W
RFA CROSS OBJ NO. 100010 OF 2018
IN RFA NO.100284/2018:
BETWEEN:
1. SRI. RAMANAYAK
S/O. DHARAMANAYAK PATIL
AGE: 58 YEARS,
OCC: AGRICULTURE,
R/O CHIKKAMALLIGAWAD VILLAGE,
TALUK AND DISTRICT DHARWAD-580009.
Digitally 2. SRI APPASAB @ SHIVANAYAK
signed by S/O. DHARAMANAYAK PATIL
SUMA AGE: 54 YEARS,
Location: OCC: AGRICULTURE,
HIGH
COURT OF R/O CHIKKAMALLIGAWAD VILLAGE,
KARNATAKA TALUK AND DISTRICT DHARWAD-580009.
3. SMT. ANNAKKA
W/O. BABASAB DESAI
AGE: 52 YEARS,
OCC: HOUSEHOLD WORK,
R/O. C/O. RAMANAYAK
S/O. DHARAMANAYAK PATIL,
CHIKKAMALLIGAWAD VILLAGE,
TALUK AND DISTRICT DHARWAD-580009.
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4. SMT. MEERA
W/O. YANKANAGOUDA NAIK
AGE: 48 YEARS,
OCC: HOUSEHOLD WORK,
R/O. C/O. GHODAGERI,
TALUK: GOKAK,
DISTRICT: BELAGAVI-580032.
5. SMT. SUJATA
W/O. RUDRAGOUDA PATIL
AGE: 46 YEARS,
OCC: HOUSEHOLD WORK,
R/O. C/O. RAMANAYAK
S/O. DHARAMANAYAK PATIL,
CHIKKAMALLIGAWAD VILLAGE,
TALUK AND DISTRICT DHARWAD-580009.
...APPELLANTS
(BY SRI. DINESH M. KULKARNI AND SRI. VINAYAK B. HEGDE,
ADVOCATES)
AND:
1. SMT. SUMITRA
W/O. RAMANAYAK PATIL
AGE: 69 YEARS,
OCC: AGRICULTURE,
R/O. CHIKKAMALLIGAWAD VILLAGE,
TALUK AND DISTRICT DHARWAD-580009.
2. SMT. KASHIBAI
W/O. SHIVANAYAK PATIL
AGE: 64 YEARS,
OCC: HOUSEHOLD WORK AND AGRICULTURE,
R/O. GANDHINAGAR HUBBALLI,
TALUK: HUBBALLI,
DISTRICT DHARWAD-580004.
SRI. RAJASHEKHAR
S/O. LAXMANNAYAK PATIL
SINCE DECEASED BY HIS LRS,
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3. SRI. PRAKASH
S/O. RAJASHEKHAR PATIL,
AGE: 59 YEARS,
OCC: AGRICULTURE,
R/O. MADANABHAVI VILLAGE,
TALUK AND DISTRICT DHARWAD-580009.
4. SRI. MANJUNATH
S/O. RAJASHEKHAR PATIL
AGE: 57 YEARS,
OCC: AGRICULTURE,
R/O. MADANABHAVI VILLAGE,
TALUK AND DISTRICT: DHARWAD-580009.
5. SRI. SANTOSH
S/O. RAJASHEKHAR PATIL
AGE: 55 YEARS,
OCC: AGRICULTURE,
R/O. MADANABHAVI VILLAGE,
TALUK AND DISTRICT: DHARWAD-580009.
6. SRI. DEVARAJ
S/O. RAJASHEKHAR PATIL
AGE: 53 YEARS,
OCC: AGRICULTURE,
R/O. MADANABHAVI VILLAGE,
TALUK AND DISTRICT: DHARWAD-580009.
...RESPONDENTS
(BY SRI. ARUN L. NEELOPANT AND SMT. KAVITA S. JADHAV,
ADVOCATES FOR RESPONDENT NOS.1 AND 2;
VIDE ORDER DATED 06.02.2024 SERVICE OF NOTICE TO
RESPONDENT NOS.3 TO 6 IS DISPENSED WITH)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 28.04.2017 PASSED IN
O.S.NO.85/2009 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND CHIEF JUDICIAL MAGISTRATE, DHARWAD, PARTLY
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RFA No. 100284 of 2018
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HC-KAR
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
IN RFA CROB.NO.100010/2018:
BETWEEN:
1. SMT. SUMITRA
W/O. RAMANAYAK PATIL
AGE: 69 YEARS, OCCU: AGRICULTURE,
R/O. CHIKKAMALLIGAWAD VILLAGE,
TQ/DIST: DHARWAD-580007.
2. SMT. KASHIBAI
W/O. SHIVANAYAK PATIL
AGE:64 YEARS,
OCCU: HOUSEHOLD WORK AND AGRICULTURE,
R/O. GANDHINAGAR, HUBLI,
DIST: DHARWAD-580030.
...CROSS-OBJECTORS
(BY SRI. ARUN L. NEELOPANTH, ADVOCATE)
AND:
1. SRI. RAMANAYAK
S/O. DHARAMANAYAK PATIL
AGE: 58 YEARS,
OCCU: AGRICULTURE,
R/O CHIKKAMALLIGAWAD VILLAGE,
TQ/DIST: DHARWAD-580007.
2. SRI. APPASAB @ SHIVANAYAK
S/O. DHARMANAYAK PATIL
AGE: 54 YEARS,
OCCU: AGRICULTURE,
R/O CHIKKAMALLIGAWAD VILLAGE,
TQ/DIST: DHARWAD-580007.
3. SMT. ANNAKKA
W/O. BABASAB DESAI
AGE: 52 YEARS,
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RFA No. 100284 of 2018
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OCCU: HOUSEHOLD,
R/O. C/O. RAMANAYAK
S/O. DHARAMANAYAK PATIL,
R/O CHIKKAMALLIGAWAD VILLAGE,
TQ/DIST: DHARWAD-580007.
4. SMT. MEERA
W/O. YANKANAGOUDA NAIK
AGE: 48 YEARS,
OCCU: HOUSEHOLD WORK,
R/O. C/O. GHODAGERI,
TQ: GOKAK-591107,
DIST: BELAGAVI.
5. SMT. SUJATA
W/O. RUDRAGOUDA PATIL
AGE: 46 YEARS,
OCCU: HOUSE HOLD,
R/O. C/O. RAMANAYAK
S/O. DHARAMANAYAK PATIL,
R/O CHIKKAMALLIGAWAD,
TQ/DIST: DHARWAD-580007.
6. PRAKASH
S/O. RAJASHEKHAR PATIL
AGE: 59 YEARS,
OCCU: AGRICULTURE,
R/O. MADANBHAVI VILLAGE,
TQ/DIST: DHARWAD-581105.
7. MANJUNATH
S/O. RAJASHEKHAR PATIL
AGE: 57 YEARS,
OCCU: AGRICULTURE,
R/O. MADANBHAVI VILLAGE,
TQ/DIST: DHARWAD-581105.
8. SANTOSH
S/O. RAJASHEKHAR PATIL
AGE: 55 YEARS,
OCCU: AGRICULTURE,
R/O. MADANBHAVI VILLAGE,
TQ/DIST: DHARWAD-581105.
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RFA No. 100284 of 2018
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9. DEVARAJ
S/O. RAJASHEKHAR PATIL
AGE: 53 YEARS,
OCCU: AGRICULTURE,
R/O. MADANBHAVI VILLAGE,
TQ/DIST: DHARWAD-581105.
...RESPONDENTS
(BY SRI. DINESH M. KULKARNI AND SRI. VINAYAK B. HEGDE,
ADVOCATES FOR RESPONDENT NOS.1, 2, 3, 4 AND 5;
RESPONDENT NOS.6, 7, 8 AND 9 ARE SERVED AND UNREPRESENTED)
THIS RFA CROB. IS FILED UNDER ORDER XLI RULE 22(1) OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.04.2017
PASSED IN O.S.NO.85/2009 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, DHARWAD, PARTLY
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THIS RFA AND RFA CROB. HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 03.11.2025 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THROUGH VIDEO CONFERENCE THIS
DAY, R. NATARAJ J., DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE R.NATARAJ)
The defendant Nos.1 to 5 in O.S.No.85/2009 on the file of
the Principal Senior Civil Judge and CJM, Dharwad (henceforth
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referred to as 'Trial Court') have filed RFA No.100284/2018
challenging the judgment and decree dated 28.04.2017 passed
therein whereby the Trial Court declared that the plaintiffs are
entitled to 2/9th share each in certain suit schedule properties.
2. The plaintiffs in O.S.No.85/2009 have filed RFA Crob
No.100010/2018 challenging the aforesaid judgment and decree
dated 28.04.2017 in so far as it relates to refusal to partition
some of the suit schedule properties.
3. RFA No.100284/2018 was heard and reserved on
30.06.2025. However, it was noticed that RFA No.100284/2018
was dismissed for default on 07.02.2024. Since no attempt was
made for restoration of the appeal, RFA Crob. No.100010/2018
was allowed on 11.09.2024. Later, an application
(I.A.No.2/2025) was filed in RFA No.100284/2018 for restoration
on 26.03.2025 and the appeal was restored to file. Then
R.P.No.100052/2025 was filed to review the judgment passed in
RFA Crob. No.100010/2018. Though this bench heard the appeal
and Cross-objection and R.P.No.100052/2025, the Registry
informed us that RFA Crob.No.100010/2018 was disposed off by
a different combination of judges and therefore, RP
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No.100052/2025 has to be listed before that combination.
Accordingly, R.P.No.100052/2025 was listed before the other
bench, which allowed it and RFA Crob. No.100010/2018 was
restored for fresh consideration. In this process, the judgment
could not be pronounced within three months, as required of us
as per judgment of the Hon'ble Apex Court of India in Anil Rai
vs. State of Bihar [(2001) 7 SCC 318].
4. For the sake of convenience, the parties shall
henceforth be referred to as they were arrayed before the Trial
Court. The appellants in RFA No.100284/2018 (respondent Nos.1
to 5 in RFA Crob No.100010/2018) were the defendant Nos.1 to
5, while respondent Nos.1 and 2 in RFA No.100284/2018 (Cross-
objectors in RFA Crob No.100010/2018) were the plaintiffs and
respondent Nos.3 to 6 in RFA No.100284/2018 (respondent
Nos.6 to 9 in RFA Crob No.100010/2018) are the legal
representatives of the deceased - defendant No.6.
5. The suit in O.S.No.85/2009 was filed for partition and
separate possession of the plaintiffs' share in the suit schedule
properties. The plaintiffs mentioned their genealogy as follows:
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Shivanayak @ Shivangouda
(Expired on 16.01.1952)
Krishnavva w/o Shivanayak @ Shivangouda
(Expired on 03.08.1993)
Dharamnaik Sumitra Kashibai
(Expired on w/o Ramanaik Patil w/o Shivanaik Patil
02.03.2008) (Pltf-1) (Pltf-2)
Bayakka
W/o Dharamnaik
(Expired on
18.01.2008)
Ramanaik Appasaheb Annakka Meera Sujata
s/o @ Shivanaik w/o w/o w/o
Dharamanaik D-2 Babasab Yankanagouda Rudragouda
Patil Desai Naik Patil
D-1 D-3 D-4 D-5
6. The suit properties were agricultural lands in Block
Nos.25, 26, 45 and 198 of Chikkamalligwad, Block No.612 of
Kelageri and Block No.88 of Daddikamalapur and a house
property at Chikkamalligwad.
7. (i) The plaintiffs claimed that their father Sri.
Shivanaika died on 16.01.1952 leaving behind him his widow
Smt. Krishnavva, his daughters - plaintiff Nos.1 and 2 and his
son - Sri. Dharmanaika. Smt. Krishnavva died on 03.08.1993
leaving behind the plaintiffs and Sri. Dharmanaika as her legal
heirs. Sri. Dharmanaika died on 02.03.2008 leaving behind him
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the defendant Nos.1 to 5. The plaintiffs claimed that the
properties mentioned in the schedule to the plaint were joint
family properties which stood in the name of the propositus Sri.
Shivanaika. The plaintiffs claimed that after the death of Sri.
Shivanaika, his widow Smt. Krishnavva and Sri. Dharmanaika
succeeded to the suit properties. However, the name of Sri.
Dharmanaika alone was entered in the record of rights as he was
the Manager and kartha of the family. The plaintiffs therefore,
contended that after the death of Smt. Krishnavva, they and Sri.
Dharmanaika succeeded to the half share of Smt. Krishnavva.
They claimed that after the death of Sri. Dharmanaika,
defendant Nos.1 to 5 succeeded to the share of deceased -
Dharmanaika. They claimed that the suit properties were not
partitioned by metes and bound and hence, they had an
undivided share. They also claimed that they were in joint
possession and enjoyment of suit properties along with
defendant Nos.1 to 5 and that they were getting their share in
the crops grown in the suit properties.
(ii) The plaintiffs claimed that during first week of May,
2009, there were rumours that the defendant Nos.1 and 2 were
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trying to alienate the suit properties to third parties even though
there was no family necessity. Hence, they questioned the
defendant Nos.1 and 2 and demanded the latter to partition and
handover their share in the suit properties. They contend that
they came to know about a false mutation in ME No.1050 based
on a partition between Sri. Dharmanaika and defendant Nos.1
and 2 and that the name of defendant No.1 was entered in
respect of Block Nos.26 and 45 and name of defendant No.2 was
entered in respect of Block No.198. They claimed that these
revenue entries were of no consequence and that they too were
entitled to share in the suit properties.
8. (i) The suit was contested by the defendant No.1,
who filed his written statement contending that the father of the
plaintiffs Sri. Shivanaika died on 16.01.1952 leaving behind his
wife Smt. Krishnavva, the plaintiffs and Sri. Dharmanaika. He
claimed that Smt. Krishnavva died on 03.08.1993 leaving behind
the plaintiffs and Sri. Dharmanaika and Sri. Dharmanaika died on
02.03.2008 leaving behind the defendant Nos.1 to 5. He denied
that the suit properties were the properties of the joint family
comprised of plaintiffs and defendant Nos.1 to 5. He denied that
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the suit 'A' and 'B' properties earlier stood in the name of Sri.
Shivanaika and after his death, it was entered in the name of Sri.
Dharmanaika. He contended that the plaintiffs were born in the
year 1944 and 1948 respectively. He claimed that since Sri.
Shivanaika died on 16.01.1952, it was only his son Sri.
Dharmanaika who had succeeded to the properties and
accordingly, his name was entered in the revenue records on
26.11.1953. He claimed that during the life time of Sri.
Dharmanaika, he and his son namely, the defendant No.1
entered into a partition as per which the revenue authorities
passed a mutation order dated 22.08.1966 bearing ME.No.1050
and entered the names of Sri. Dharmanaika and defendant No.1.
He claimed that though the plaintiffs knew about the partition in
the year 1966 between Sri. Dharmanaika and defendant No.1,
they did not take any steps to question it. He contended that
since the properties were partitioned in the year 1966, the
plaintiffs could not claim any share in the suit properties.
(ii) The defendant No.1 contended that after the partition
in the year 1966, a few properties were resumed by the State
Government under the Karnataka Village Offices Abolition Act,
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1961 and were re-granted to Sri. Dharmanaika. These lands
were bearing Block Nos.26, 45, 198, 201, 88, 17, 13/26. He
contended that since the plaintiffs were married prior to 1981,
they were not members of the joint family and hence, were not
entitled to any share. He contended that plaintiff No.2 also
possessed land in Sy.No.103/1 of Halligeri village and likewise,
plaintiff No.1 also had properties in her name. The defendant
No.1 denied that the mutation in ME.No.1050 was falsely
obtained based on the partition dated 22.08.1966.
(iii) In short, the defence of the defendant No.1 was that
the father of the plaintiffs had died in the year 1952 and
therefore, the plaintiffs were not entitled for any share in the suit
properties.
9. The written statement filed by the defendant No.1
was adopted by the other defendants.
10. Based on these contentions, the Trial Court framed
the following issues:-
1. Whether the Plaintiffs prove that the Suit
Schedule A & B Properties are the Joint Family
properties of the Plaintiff Nos.1 and 2 and
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Defendants No.1 to 5 and they are in joint
possession?
2. Whether the Defendants prove that Plaintiffs
are not entitled for any share in Suit Schedule
properties?
3. Whether the Plaintiffs are entitled for partition
and separate possession thereof? If so what is
the share to which the Plaintiffs are entitled?
4. What Decree or Order ?
11. The plaintiff No.2 was examined as PW.1 and she
marked Exs.P1 to P9. The defendant Nos.5, 4 and 1 were
examined as DWs.1 to 3 respectively and they marked Exs.D1 to
D7.
12. (i) Based on the oral and documentary evidence,
the Trial Court held that the plaintiffs had proved that the suit 'A'
and 'B' properties belonged to the joint family. It held that the
plaintiffs being the daughters were entitled to a share in the
notional share of their father along with the defendants. Thus, it
declared that the plaintiffs were entitled to 2/9th share each in
Block Nos.25, 612 and 88 and house property, while the
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defendants were together entitled to 5/9th share in the above
properties.
(ii) In so far as the other properties are concerned, it
held that Block Nos.26 and 45 were re-granted to the defendant
No.1, while Block No.198 was re-granted in favour of Sri.
Dharmanaika on 01.07.2000. It held that as per the case of the
defendants, the date of birth of the plaintiff Nos.1 and 2 was
01.03.1944 and 01.04.1948 respectively. It noticed that plaintiff
No.2 had deposed that she was married after 1960 while her
elder sister was married prior to 1960. It therefore, held that the
lands in Block Nos.26, 45 and 198 were re-granted after the
marriage of the plaintiffs and therefore, the plaintiffs were not
members of the joint family. It held that though the properties
re-granted became the joint family properties, the re-grant in
favour of defendant No.1 and Sri. Dharmanaika did not enure to
the benefit of the plaintiffs and hence, held that they were the
separate and exclusive properties of the defendant No.1.
(iii) As regards the share to which the plaintiffs were
entitled to, it held that as per the Hindu Women's Rights to
Property Act, 1937, Sri. Shivanaika, his wife Smt. Krishnavva
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and son Sri. Dharmanaika were entitled to 1/3rd each in the
properties bearing Block Nos.25, 88, 612 and house property. It
held that the plaintiffs and Sri. Dharmanaika were entitled to a
share out of the notional share of Sri. Shivanaika. It noticed
that Smt. Krishnavva died intestate and therefore, as per Section
15 of the Hindu Succession Act, 1956, the share of Smt.
Krishnavva devolved upon the plaintiffs and Sri. Dharmanaika
equally. It thus held that the plaintiffs were entitled to 2/9th
share in three agricultural lands and a house property mentioned
above.
13. Being aggrieved by the said judgment and decree,
the defendant Nos.1 to 5 have filed RFA No.100284/2018
challenging the share granted out of the notional share of their
father. The plaintiffs have filed RFA Crob No.100010/2018
challenging the judgment and decree of the Trial Court in so far
as it relates to refusal to partition land in Block Nos.26, 45 and
198.
14. The learned counsel for the defendant Nos.1 to 5
submitted that the Trial Court committed an error in allotting
notional share to Sri. Shivanaika, who died in the year 1952. He
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contended that as per the law that applied in the year 1952, it
was only Sri. Dharmanaika, who was the sole surviving
coparcener and he had succeeded to the properties. He
therefore, contended that the plaintiffs who were not
coparceners as on 16.01.1952 were not entitled to claim as
coparceners. He contends that though the Trial Court noticed
that the law applicable was the Hindu Women's Rights to
Property Act, 1937, yet allotted a notional share to Sri.
Shivanaika. He therefore, contended that the impugned
judgment and decree of the Trial Court is extremely lopsided and
the shares allotted to the plaintiffs is without any basis. In
support his contention, he has relied upon the following
judgments:-
(i) Eramma vs. Veerupana and others [AIR 1966 SC
1879]
(ii) Judgment of the High Court of Judicature of
Bombay in Second Appeal No.593/1987
(iii) Judgment of Single Bench of this Court in RSA
No.2620/2007 c/w RSA Crob No.54/2012
(iv) Annamma vs. Pattamma [ILR 1990 KAR 1696]
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15. Per contra, the learned counsel for the plaintiffs
contended that even though Sri. Shivanaika died in the year
1952, the joint family continued after the year 1956 and
therefore, the plaintiffs being members of the joint family were
entitled to an undivided share in the suit properties. He
contended that by virtue of the judgment of the Hon'ble Apex
Court in Vineeta Sharma vs. Rakesh Sharma and others
[(2020) 9 SCC 1], the plaintiffs were entitled to equal share
along with Sri. Dharmanaika. He thus contended that the Trial
Court was not justified in granting a share out of the notional
share of Sri. Shivanaika. He further contended that the re-grant
of land in Block Nos.26, 45 and 198 to the defendant No.1 and
Sri. Dharmanaika must enure to the benefit of all the members
of the family including the plaintiffs. He contended that though
the plaintiff No.2 had admitted that the plaintiff No.1 was
married prior to 1960 and she was married later, so long as the
family was joint, the plaintiffs were entitled to an equal share
along with the defendant No.1. He therefore, contended that
impugned judgment and decree of the Trial Court in so far as it
relates to denying the share in Block Nos.26, 45 and 198, is
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liable to be modified. In support his contention, he has relied
upon the following judgments:-
(i) Judgment of this Court in RFA No.714/2009
(ii) Judgment of the Hon'ble Apex Court in SLP
(iii) Vineeta Sharma vs. Rakesh Sharma and others
[(2020) 9 SCC 1]
(iv) Arshnoor Singh vs. Harpal Kaur and others
[AIR 2019 SC 3098]
(v) Imamsa Chandas Gurikar since deceased by
LRs and others vs. Mohdinsa Nabisa Gurikar
since deceased by LRs [2018 (2) KCCR 1520]
16. We have given our anxious consideration to the
arguments advanced by the learned counsel for the defendant
Nos.1 to 5 and learned counsel for the plaintiffs. We have also
perused the records of the Trial Court and its judgment and
decree.
17. A re-examination of the pleadings, evidence, findings
of the Trial Court and the arguments canvassed before us,
throws up the following points for our consideration:
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(i) In view of the admitted position that the father
of the plaintiffs died on 16.01.1952, whether
the plaintiffs were entitled to a share in the suit
schedule properties as coparceners?
(ii) Whether the Trial Court was justified in allotting
a notional share to the propositus Sri.
Shivanaika, who died on 16.01.1952 and
whether the Trial Court was justified in allotting
a share therein to the plaintiffs?
(iii) Whether the Trial Court was justified in allotting
the share of Smt. Krishnavva to the plaintiffs
and the defendant No.1?
(iv) Whether the Trial Court was justified in denying
which were re-granted to defendant No.1 and
Block No.198, which was re-granted to
Dharmanaika?
18. Before we answer the points, it is relevant to note
that the suit was filed in respect of agricultural lands in Block
Nos.25, 26, 45 and 198 of Chikkamalligwad, Block No.612 of
Kelageri and Block No.88 of Daddikamalapur and a house
property at Chikkamalligwad. The Trial Court decreed the suit in
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so far as Block Nos.25, 612 and 88 and house property and
declared that the plaintiffs are entitled to 2/9th share therein. The
reliefs sought in respect of Block Nos.26, 45 and 198 was
refused by the Trial Court on the ground that they were granted
to defendant No.1 and Sri. Dharmanaika and that such grant did
not enure to the benefit of the plaintiffs as they were married
prior to and after 1960 and thus were not members of the joint
family.
19. (i) In so far as the first and second points for
consideration framed by us, the plaintiffs emphatically stated in
the plaint that their father died on 16.01.1952 leaving behind his
wife, Smt. Krishnavva, plaintiffs and Sri. Dharmanaika.
Therefore, it can be held without any doubt that as on
16.01.1952, it was only Sri. Dharmanaika and Smt. Krishnavva,
who were entitled to succeed to the properties of the family since
parties belonged to the Bombay School of Mitaskhara, where the
widow took an equal share along with the son [Re. Gurupad
Khandappa Magdum vs Hirabai Khandappa magdum and
others [AIR 1978 SC 1239]] As rightly contended by the
learned counsel for the defendant Nos.1 to 5, the plaintiffs were
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not coparceners prior to the year 1956, were only entitled to be
maintained by the joint family. They were not even entitled to a
share out of the share of their father. The provisions of the Hindu
Succession Act, 1956 had no retrospective effect to affect the
succession that had taken place soon after the death of
Shivanaika on 16.01.1952. In this regard, it is profitable to refer
to the judgment of the Hon'ble Apex Court in Eramma vs.
Veerupana and others [AIR 1966 SC 1879], where it was
held as follows:-
"It is clear from the express language of the
section that it applies only to coparcenary property
of the male Hindu holder who dies after the
commencement of the Act. It is manifest that the
language of Section 8 must be construed in the
context of Section 6 of the Act. We accordingly hold
that the provisions of Section 8 of the Hindu
Succession Act are not retrospective in operation
and where a male Hindu died before the Act came
into force i.e. where succession opened before the
Act, Section 8 of the Act will have no application."
(ii) Similarly, in the case of Arshnoor Singh vs Harpal
Kaur and others [AIR 2019 SC 3098], it was held as follows:-
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"If succession opened under the old Hindu law
i.e. prior to the commencement of the Hindu
Succession Act, 1956, the parties would be governed
by Mitakshara law. The property inherited by a male
Hindu from his paternal male ancestor shall be
coparcenary property in his hands vis-à-vis his male
descendants upto three degrees below him. The nature
of property will remain as coparcenary property even
after the commencement of the Hindu Succession Act,
1956."
(iii) The applicable law in the event of death of a
propositus in the year 1952 was the Hindu Women's Rights to
Property Act, 1937.
(iv) Section 3(2) and 3(3) of the Hindu Women's Rights
to Property Act, 1937 reads as follows:
"3. Devolution of property:
(1) xxxxxx
(2) When a Hindu governed by any school of Hindu
Law other than the Dayabhaga School or by
customary law dies having at the time of his
death an interest in a Hindu joint family
property, his widow shall, subject to the
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provisions of sub-section (3), have in the
property the same interest as he himself had.
(3) Any interest devolving on a Hindu widow under
the provisions of this section shall be the limited
interest known as a Hindu women's estate,
provided however that she shall have the same
right of claiming partition as a male owner."
(v) Therefore, the daughters were not entitled to any
right under the Hindu Women's Rights to Property Act, 1937. In
similar circumstances, the Hon'ble Apex Court in Kasabai
Tukaram Karvar and others vs Nivruti (Dead) Through
Legal Heirs and others [2022 SCC OnLine SC 918] held as
follows:-
"It is, undoubtedly, true that in view of the
Hindu Women's Rights to Property Act, 1937 (XVIII of
1937), the widow, inter-alia, is also recognized as an
heir. There was, as on the date when the succession
opened, in this case in the year 1948, the daughter
(the appellant) who would not have any right. The
daughter would not be a coparcener which she,
undoubtedly, is under the present dispensation in
view of the sweeping developments which took place
in the matter of succession which have been ushered
in as a result of the Hindu Succession Act and the
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changes that have been engrafted therein. The
plaintiff daughter would not be an heir, in view of the
notional existence of the adopted son by virtue of the
doctrine of relation back."
(vi) The contention of the learned counsel for the
plaintiffs that the provisions of Hindu Succession Act, 1956 as
amended by Act of 2005 is applicable, is liable to be rejected
outrightly as it related to succession after the passage of the Act
and did not in any manner affect succession prior to it. Likewise,
the judgment of the Hon'ble Apex Court in Vineeta Sharma,
referred supra, is only in respect of rights of a daughter under
the Act, 1956 and was not concerning her right prior to the
Hindu Succession Act, 1956.
(vii) Consequently, the Trial Court committed an error in
applying Section 6 of the Hindu Succession Act, 1956 by allotting
a notional share to Sri. Shivanaika and declaring the shares of
the plaintiffs.
20. As regards the third point for consideration is
concerned, Smt. Krishnavva being a widow was entitled to take
an equal share in the properties of the family along with her son
Sri. Dharmanaika. The Trial Court instead of considering this,
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had divided the properties between Sri. Dharmanaika, Smt.
Krishnavva and the deceased - Shivanaika. Since Smt.
Krishnavva was a widow, she and Sri. Dharmanaika took equal
share and hence, the judgment and decree of the Trial Court
allotting 1/3rd share to Krishnavva is not justified as she was
entitled to half share in the properties.
21. As regards the fourth point for consideration, the
defendants claimed that Block Nos.26, 45 and 198 were re-
granted to defendant No.1 and Sri. Dharmanaika during 1980
and 01.07.2000 respectively and therefore, the plaintiffs were
not entitled to any share. The defendant Nos.1 to 5 ought to
have produced documents to establish when and how the
aforesaid three parcels of land were cultivated by them. The
defendant Nos.1 to 5 could have filed or summoned the
application seeking re-grant or occupancy rights from the land
Tribunal or the authority concerned or the evidence adduced by
them in support of the application to establish that they were
cultivating the said lands on their own and without the assistance
of the plaintiffs. If they had declared in the application that the
aforesaid land was earlier cultivated by Shivanaika and later
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continued by the joint family, the re-grant of said land would
definitely enure to the benefit of the plaintiffs. It is appropriate
to note at this stage that the plaintiffs were members of the
joint family whose prime occupation was agriculture and hence,
it is probable that the plaintiffs contributed their labour for
cultivation of the land or in the upkeep of the family. In this
regard, it is profitable to refer to the judgment of the Apex Court
in N.Padmamma and others vs S.Ramakrishna Reddy and
others [(2015) 1 SCC 417] and the Judgment of this Court in
Imamsa Chandas Gurikar since dead by Lrs & others vs
Mohdinsa Nabisa Gurikar since dead by Lrs [2018 (2)
KCCR 1520]. The only documents furnished by the defendants
were the school certificates (Exs.D1 and D2) to show the date of
birth of the plaintiffs and Exs.D3 to D7, which were the mutation
entries dated 20.01.1948 (Ex.D3), mutation No.771 dated
16.11.1953 (Ex.D4), mutation dated 22.08.1966 (Ex.D5)
between Sri. Dharmanaika and defendant No.1. A mutation
order to enter the name of State Government in respect of
certain lands that were resumed under Sections 4, 5, 6, 7 and 9
of the Mysore Village Offices Abolition Act, 1961 (Ex.D6). Ex.D7
is the record to indicate that an order dated 01.01.2000 was
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passed by the Tahsildar in respect of Block Nos.26 and 45. The
oral evidence adduced by the defendants is very patchy and does
not help them in any way. The defendant No.5 was examined as
DW.1, defendant No.4 was examined as DW.2. They were aged
39 and 42 years in the year 2017 and hence, were born in 1978
and 1975 respectively. Defendant No.1 was examined as DW3.
He did not even mention that the lands bearing Block Nos.26, 45
and 198 were cultivated personally by Sri. Dharmanaika and the
defendant No.1. On the contrary, he claimed in his chief
examination as follows:-
"10. £Á£ÀÄ ªÀÄÄAzÀĪÀgÉzÀÄ ºÉüÀĪÀÅzÉ£ÉAzÀgÉ ¸ÀzÀj D¥À¸Ávï
ªÁnßAiÀiÁzÀ ªÉÄÃ¯É PÉ®ªÉÇAzÀÄ D¹ÛUÀ¼ÀÄ UÁæªÀÄ ZÁPÀj
PÁAiÉÄÝAiÀÄrAiÀÄ°è ¸ÀPÁðgÀPÉÌ ¸ÀA§AzsÀ¥ÀnÖzÀݪÀÅ CªÀÅUÀ¼À£ÀÄß ¥ÀÄ£Àgï
jUÁæöåAmï DzÀ £ÀAvÀgÀ, £ÀªÀÄä vÀAzÉAiÀĪÀgÁzÀ zsÀªÀÄð£ÁAiÀÄPÀ
²ªÀ£ÁAiÀÄPÀ ¥Ánî EªÀ£ÉƧâ¤UÉ ºÉ¸ÀjUÉ ¨ÁèPï £ÀA.26, ¨ÁèPï
£ÀA.45, ¨ÁèPï £ÀA.198, ¨ÁèPï £ÀA.201, ¨ÁèPï £ÀA.88, ¨ÁèPï £ÀA.198,
¨ÁèPï £ÀA.17, ¨ÁèPï £ÀA.13/26 E¤ßvÀgÉ »ÃUÉ PÉ®ªÉÇAzÀÄ D¹ÛUÀ¼À£ÀÄß
¢£ÁAPÀ: 1980 £ÀAvÀgÀzÀ°è E¹éAiÀÄ°è jUÁæöåAmï ªÀiÁrzÀÝjAzÀ ªÀÄvÀÄÛ
F M¼ÀUÁV ¸ÀzÀj ªÁ¢UÀ¼À «ªÁºÀªÀÅ PÀÆqÁ 1981 £Éà E¹éAiÀÄ
¥ÀƪÀðzÀ°è DVgÀĪÀÅzÀjAzÀ CªÀgÀÄ C«¨sÀPÀÛ PÀÄlÄA§zÀ ¸ÀzÀ¸ÀågÀÄ
DUÀĪÀÅ¢®è."
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22. The defendant Nos.1 to 5 did not produce any
documents to establish that Block Nos.26, 45 and 198 were
cultivated exclusively by them either as Inamdar or as tenants
under Inamdars. Consequently, in the absence of any proof that
the defendant No.1 and his father were the absolute owners of
the aforesaid three items of properties and as the plaintiffs
continued to hold an undivided interest even after their
marriage, they were entitled to partition and separate possession
of their undivided share in the said properties. As a result, point
No.4 is answered accordingly.
23. In view of the above findings, the following order is
passed :
ORDER
(i) RFA No.100284/2018 and RFA Crob
No.100010/2018 are allowed in part.
(ii) It is held that the plaintiffs are entitled to 1/6th
share each in suit items in Block No.25 of
Chikkamalligwad, Block No.612 of Kelageri and
Block No.88 of Daddikamalapur as well as the
house property described in schedule 'B'. The
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plaintiffs are entitled to 1/3rd share each in Block
Nos.26, 45 and 198 of Chikkamalligwad. The
plaintiffs are also entitled to mesne profits.
(iii) Likewise, the defendants are together entitled to
2/3rd share in Block No.25 of Chikkamalligwad,
Block No.612 of Kelageri and Block No.88 of
Daddikamalapur as well as the house property
described in schedule 'B'. The defendants are
together entitled to 1/3rd share in Block Nos.26, 45
and 198 of Chikkamalligwad.
(iv) Parties shall bear their own costs.
(v) Registry is directed to draw a decree in terms of
this judgment.
Sd/-
(R.NATARAJ)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
PMR
