Dismissed

Smt Housa Bai v. Jai Hind Rao Sindhe

Karnataka HC4 Jun 2013RSA/1238/2012

Case brief

AI extract

What is this about?

In an appeal against confirmation of a decree in O.S. No. 188/2006, the Karnataka High Court upheld the trial court's decision. Plaintiff sought partition of joint family properties. Defendant claimed properties were self-acquired via gift. Court held properties were joint family, gifted by father without consent of coparceners.

What did the court decide?

The appeal was dismissed with no costs to the appellant.

Smt Housa Bai Vs Jai Hind Rao Sindhe — Partition | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 04^th DAY OF JUNE, 2013

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BEFORE

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THE HON'BLE MR. JUSTICE S.ABDUL NAZEER

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R.S.A.No.1238 OF 2012 (PAR/POSSN)

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BETWEEN:

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SMT. HOUSA BAI W/O SHANTHU BALU LOKHANDE, AGED ABOUT 63 YEARS R/AT NO.414, 4TH FLOOR FREEDOM FIGHTER SAKARAM PAWAR MARG, KARI ROAD WEST MUMBAI, MAHARASHTRA STATE .. APPELLANT

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(By Sri. H DAYANANDA SARASWATHI, ADV.)

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AND:

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1 JAI HIND RAO SINDHE S/O GOPALA RAO SINDHE AGED ABOUT 58 YEARS R/AT BARANDUR VILLAGE BHADRAVATHI TALUK SHIMOGA DISTRICT 577301

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2 SMT. SHANTHA BAI W/O NANA RAO DIRANGE AGED ABOUT 61 YEARS R/AT NAWAKUDA GANDLINLAJ TALUK KOLLAPURA DISTRICT MAHARASTRA STATE 416506

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3 SMT. BHANUMATHI W/O APPASAB NIMBALKAR AGED ABOUT 52 YEARS RADHAKRISHNA EDUCATION SOCIETY JAWDAR NAGAR, ICHALKARAJEE POST HATHKADANGLES TALUK,

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KOLHAPURA DISTRICT MAHARASHTRA STATE 4 SYED SHAFIUR REHAMAN S/O M BASHA SAB AGE: MAJOR R/O V V PURA (VANIVILASAPURA) HIRIYUR TALUK CHITRADURGA DISTICT 572143

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5 SYED KHALEELUR REHAMAN S/O M BASHA SAB AGE: MAJOR R/O V V PURA (VANIVILASAPURA) HIRIYUR TALUK CHITRADURGA DISTICT 572143 ...RESPONDENTS

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(By Sri. T N VISHWANATH, ADV. FOR C/R1 )

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 13.3.2012 PASSED IN R.A.NO.217/2011 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, BHADRAVATHI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 30.7.2011 PASSED IN O.S.NO.188/2006 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE & JMFC, BHADRAVATHI.

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THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is directed against the judgment and decree in R.A. No.217/2011 dated 13.3.2012 on the file of the Fast Track Court at Bhadravathi, confirming the judgment and decree in O.S.No.188/2006 dated 30.07.2011 on the file of the Addl. Sr.Civil Judge and JMFC, Bhadravathi.

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The appellant is the 1^st defendant in the suit. The 1^st respondent is the plaintiff and respondent Nos.2 to 5 are defendant Nos.2, 3, 5 & 6 in the suit. For the sake of convenience, parties are referred to their respective ranking before the trial court.

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The plaintiff filed the above suit for partition and separate possession of his share in the suit schedule properties. According to the plaintiff, the suit properties are joint family properties of the plaintiff and defendant Nos.1 to 4. Their father Gopala Rao had executed a gift deed dated 10.07.1989 in respect of item Nos.2 and 3 of the suit schedule properties in favour of the 1^st defendant. The said gift deed is not binding on him. Defendant Nos.5 & 6 are the subsequent purchasers of item Nos.2 and 3 from the 1^st defendant.

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Defendant Nos.1, 5 and 6 contested the suit. According to the 1^st defendant, item Nos.2 and 3 of the suit schedule properties are the self acquired properties of her father Gopala Rao. Therefore, the gift deed executed by him is valid.

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On the basis of the pleadings of the parties, the court below has framed the relevant issues. The parties have let in their evidence. On appreciation of the oral and documentary evidence on record, the trial court has decreed the suit. The First Appellate Court has confirmed the said decree.

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Learned counsel for the appellant/1^st defendant would contend that item Nos.2 and 3 of the suit schedule properties are the self acquired properties of Gopala Rao, the father of the 1^st defendant. Therefore, question of granting a share in the said properties does not arise. The said property has been sold in favour of defendants Nos. 5 & 6. It is further argued that gift deed is dated 10.07.1989. There is a long delay in challenging the gift deed.

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On the other hand, learned Advocate appearing for respondent No.1/plaintiff has sought to justify the impugned judgment and decree.

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I have carefully considered the arguments made by the learned Counsel for the parties at the bar and

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Bar and perused the materials placed on record.

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Materials on record would clearly show that Shettappa Sindhe, father of Gopala Rao and grand father of plaintiff and defendant Nos. 1 to 3 had acquired 4 acres of land in Sy.No.14 of Kambadhalli Village of Hiriyur Taluk, Chitradurga District. He had four sons including Gopal Rao. It is also evident that after the death of Shettappa Sindhe, the said property was divided between his four sons. One acre of land was allotted to the father of the plaintiff and defendant Nos.1 to 3, which is item No.1 in the schedule. Item Nos.2 and 3 have been acquired by Gopala Rao. The 1^st defendant was examined as DW1 before the Trial Court. In her evidence, she has clearly stated that her father Gopala Rao and his daughters were jointly cultivating the item No.3 of the suit schedule property. She has further admitted that except the income derived from item Nos.1 and 3 of the suit schedule properties, her father Gopala Rao had no other sources of income. Item Nos.1 to 3 are joint family property of Gopala Rao and his children.

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It is thus clear that item No.2 and 3 were

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purchased out of the income derived from the ancestral property by Gopala Rao. That is why the Court below has directed partition of all the items of the property. The challenge in this appeal is only in respect of item Nos.2 and 3 of the suit schedule property. Since the properties in question are the joint family properties. Gopal Rao could not have gifted the said property in favour of the 1^st defendant. The plaintiff is not a party to Ex.D1, gift deed. Therefore, it is not binding on him.

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In my view, the suit is not barred by time as contended by the appellant. As stated earlier, the plaintiff is not a party to Ex.D1. It is well established that in a suit for partition, it is not necessary to seek setting aside the subsequent alienations. It is sufficient if the plaintiff asks for his share in the joint family properties and for a declaration that she is not bound by any alienations or interest of others created in such properties which fall to his share.

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The Trial Court on proper appreciation of the materials on record has concluded that properties are joint

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family properties. The First Appellate Court has reappreciated the evidence on record and has confirmed the judgment of the trial court. There is no perversity, illegality or irregularity whatsoever in those findings. The appeal does not involve any substantial question of law. It is accordingly dismissed. No costs.

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Sd/JUDGE

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KLY/

Smt Housa Bai v. Jai Hind Rao Sindhe

Case brief

What is this about?

What did the court decide?

Smt Housa Bai v. Jai Hind Rao Sindhe

Case brief

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What did the court decide?

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