Partly allowed

Smt Chikkathayamma v. Marigowda

Karnataka HC8 Mar 2021RFA/358/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the appeal in part, modifying the trial court’s decree. The Court held that the daughter (plaintiff No.2) is entitled to a 1/2 share over a specific land item, while the wife's claim for partition was rejected during the father’s lifetime.

What did the court decide?

Appeal allowed in part; judgment and decree modified; Plaintiff No.2 entitled to half share over Item No.2; prayer for partition rejected; prayer to declare gift deed void dismissed.

Smt Chikkathayamma Vs Marigowda — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF MARCH, 2021

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE P.N.DESAI

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R.F.A.No.358/2012

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BETWEEN :

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1 . SMT.CHIKKATHAYAMMA W/O MARIGOWDA AGED ABOUT 45 YEARS

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2 . SMT.SHIVAMMA D/O MARIGOWDA AGED ABOUT 25 YEARS

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BOTH ARE R/AT ANAGALLI VILLAGE, JAYAPURA HOBLI, MYSORE TALUK-570008 ...APPELLANTS

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(BY SRI P.SUBRAMANYA BHAT, ADV.)

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AND :

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1 . MARIGOWDA S/O BASAVEGOWDA AGED ABOUT 55 YEARS

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2 . SMT.MAHADEVAMMA W/O MARIGOWDA AGED ABOUT 42 YEARS

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3 . SMT.MANJULA W/O MAHADEVU, D/O MARIGOWDA AGED ABOUT 27 YEARS

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4 . SRI NAGANNA S/O MARIGOWDA AGED ABOUT 23 YEARS

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5 . SRI SATISH S/O MARIGOWDA AGED ABOUT 21 YEARS

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6 . BASAVEGOWDA S/O BASAVEGOWDA AGED ABOUT 52 YEARS

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7 . SRI RAMEGOWDA S/O BASAVEGOWDA AGED ABOUT 49 YEARS

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ALL ARE R/AT MELLAHALLI (BEERIHUNDI) VILLAGE JAYAPURA HOBLI, MYSORE TALUK-570026 …RESPONDENTS

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(R-1 TO R-6 ARE SERVED;

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VIDE COURT ORDER DATED 25.06.2014 NOTICE TO R-7 IS

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DISPENSED WITH.)

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THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 17.12.2011 PASSED IN O.S.No.485/2009 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MYSORE, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL COMING ON FOR HEARING, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed by the plaintiffs challenging the judgment and decree dated 17.12.2011 passed in O.S.No.485/2009 by the II Additional Senior Civil Judge, Mysore (‘Trial Court’ for short).

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For the sake of convenience, the parties are referred to as per their status before the Trial Court.

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The plaintiffs filed the suit against the defendants seeking relief of partition and separate possession of their 2/3^rd share over the suit schedule properties and also to declare that the gift deed dated 12.10.2006 executed by defendant No.1 in favour of defendant No.3 is null and void and not binding on the plaintiffs to the extent of their share.

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Suit schedule properties are described as

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under:-

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1. Land bearing Survey No.81/1, measuring 29 guntas, situated at Mellahalli

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(Beeri Hundi) village, Jayapura Village, Jayapura Hobli, Mysore Taluk, Bounded on:

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East by : Land of Mote Gowda, West by : Land of Kempe Gowda, North by : Land of Putta Swamy, South by : Land of Javare Gowda.

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2. Land bearing Survey No.76/2 measuring 5 Guntas, situated at Mellahalli (Beeri Hundi) village, Jayapura Village, Jayapura Hobli, Mysore Taluk, bounded on:

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East by : Land of Shivanne Gowda,

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West by : Land of Pape Gowda, North by : Land of Mote Gowda,

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South by : Land of Basave Gowda

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3. Two Pillared Thotti House bearing #49/A, Janjer #77, situated at Mellahalli (Beeri Hundi) village, Jayapura Hobli, Mysore taluk, bounded on:

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East by : Vacant space belonging to Chikkahyde Gowda

West by : Road

North by : Road

South by : Road.

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4. RCC House bearing No.85, situated at Mellahalli (Beeri Hundi) village, Jayapura Hobli, Mysore Taluk, measuring East-West: 30’ and North – South : 40’, bounded on:

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East by : vacant space,

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West by : Road,

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North by : House of Dodda Hyde Gowda,

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South by : House of Kari Gowda.

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Plaint averments in brief are that the

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plaintiff No.1 is the legally wedded wife of the defendant No.1 and plaintiff No.2 is the legitimate daughter. The defendant No.2 is the second wife of defendant No.1. Defendant Nos.3 to 5 are the children of defendant Nos.1 and 2 born out of the void marriage. Defendant Nos.6 and 7 are the brothers of the defendant No.1. Even though defendant Nos.6 and 7 are the divided brothers, they are impleaded as party, since the property described in the item No.2 of the suit schedule properties is in the joint name of defendant Nos.1, 6 and 7. The property was divided among defendant Nos.1, 6

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and 7. As such, the plaintiffs are concerned about 0.5 guntas of the land in item No.2 of suit schedule properties. The rest of the items are the joint family properties acquired out of joint family income and given to the share of the defendant No.1. Plaintiff No.2 has acquired the right by birth over suit schedule properties. Plaintiff No.1 being the legally wedded wife of the defendant No.1 is also entitled for share over the suit schedule properties. Thus, the plaintiffs sought for 2/3^rd share over the suit schedule properties.

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It was further averred that the defendant

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Nos.1 and 2 have colluded together and concocted the gift deed dated 12.10.2006 in respect of item No.1 of the suit schedule properties in favour of defendant No.3 to defeat the right of the plaintiffs. The plaintiffs are not bound by the gift deed dated 12.10.2006 as the same is null and void. The defendant No.1 has no right to execute the gift deed and the same was set up after

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filing of the suit in O.S.No.1391/2006, wherein the defendant Nos.2 to 7 were not included.

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Despite of the service of notice by the Trial

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Court, the defendants were not appeared before the Court and they were placed ex-parte.

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To substantiate the claim of the plaintiffs,

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plaintiff No.1 was examined as PW.1 and got marked 9 documents as Exs.P1 to P9.

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Having heard the arguments of the learned

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counsel appearing for the plaintiffs, the Trial Court had framed the following points for consideration:-

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1) Whether the plaintiffs are entitled for 2/3^rd share over the suit schedule properties?

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2) What order or decree?

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On appreciation of material evidence on

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record, the Trial Court answered the point No.1 in the affirmative holding that the plaintiff No.2 is entitled for

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1/5^th share over item Nos.2 and 3 of the suit schedule

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properties.

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Being aggrieved, the plaintiffs have preferred

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the present appeal.

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Learned counsel for the appellants/plaintiffs would submit that the Trial Court ought to have allotted the share to the extent of ½ (half) over item Nos.2 and 3 of the suit schedule properties as well as in all the items of the suit schedule properties. Learned counsel has placed reliance on the judgment of the Hon’ble Apex Court in the case of Jinia Keotin and others vs. Kumar Sitaram Manjhi and others reported in (2003)

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1 SCC 730.

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Adverting to the arguments advanced by the learned counsel appearing for the appellants/plaintiffs and perusing the original records, the points that arise for our consideration are:-

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1. Whether the plaintiff No.2 is entitled to ½ (half) share in the suit schedule properties?

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Whether the judgment and decree passed by the Trial Court is justifiable?

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PW.1 in her cross-examination has

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reiterated the contents of the plaint, but the defendants have not cross-examined the said witness. As regards item No.1, the defendant No.1 has executed the registered gift deed dated 12.10.2006 as per Ex.P6 which is placed on record by the plaintiffs themselves. Learned counsel made an endeavor to contend that Ex.P6 is executed by the defendant No.1 after the institution of the O.S.No.1391/2006 by the plaintiffs seeking partition of the suit schedule properties, the same would indicate the conduct of the defendant Nos.1 and 2 which is nothing but to deprive the legitimate rights of the plaintiffs. In the said gift deed, it is mentioned as the absolute property of the defendant

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No.1. As such, the burden lies on the plaintiffs to prove that it is a joint family property, which has not been discharged by the plaintiffs except making assertion that the said gift deed has been executed by the defendant No.1 by denying the rights of the plaintiffs. In the absence of cogent evidence, the Trial Court has rightly held that said suit item is not available for partition. Similarly, in respect of item No.4, no documentary evidence was placed to substantiate the oral evidence except the ipse dixit statement of PW1, which is not corroborated with any further evidence. Accordingly, we do not find any fault in the finding of the Trial Court in holding that item Nos.1 and 4 of the suit schedule properties are also not available for partition.

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In the recent co-ordinate bench decision of this Hon’ble Court in the case of Padmavathi and another vs. Smt. Jayamma and others reported in

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ILR 2020 KAR 2697, their Lordships have followed the judgment of the Hon’ble Apex Court in the case of Jinia Keotin, supra. The decision in Revanasiddappa and another vs. Mallikarjun and another reported in (2011) 3 AIR KAR 230 referred to the larger bench has also been considered by the Co-ordinate bench. In the light of the Jinia Keotin, supra, the Co-ordinate bench of this Court has held thus:-

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“109. In terms of Section 16 such illegitimate child/ren would be entitled only to the property of the father and not that of the coparcenary or joint family property. That being so, for the reason that the concept of coparcenary or joint family property has been derived for safeguarding the properties of the joint family from any activities or actions on the part of any of the members of the family, more so when such member of the family could resort to having illegitimate children, who can claim a right in the ancestral, joint family or coparcenary property, without the knowledge or blessings of the family. Further

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third parties would rely on the genealogical tree of the family, which would not reflect illegitimate children, putting such third parties at a disadvantage. The right in ancestral, joint family or coparcenary property, is only limited to a legitimate child, an illegitimate child would have a right over the separate property of the father and not that of the ancestral, joint family or coparcenary property. There needs to be a balance drawn in protecting the joint family/coparcenary and that of the innocent illegitimate children as also innocent third parties. This being what has been held by the Apex Court in JINIA KIOTIN vs. KUMAR SITARAM MANJHI⁸⁰ , NEELAMMA vs. SAROJAMMA⁸¹ and BHARATHA MATHA vs. R.VIDYA RENGANATHAN⁸² , though REVANASIDDAPPA vs. MALLIKARJUN⁸³ , has been referred to the larger bench, which yet to be resolved. Hence, in the present case, we are restricting our finding to the right of illegitimate children as held in JINIA KIOTIN vs. KUMAR SITARAM MANJHI

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(supra) and BHARATHA MATHA vs. R. VIDYA RENGANATHAN (supra). ”

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We have no reasons to differ from the said

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finding which is based on the decision of the Hon’ble Apex Court in the case of Jinia Keotin, supra. In the light of the said judgment, the plaintiff No.2 is entitled to the share of the father in equal proportion in respect of Item No.2 of the schedule property, being legitimate child since the factual aspects are not denied by the defendants despite service of notice on them.

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As Item No.2 is concerned, RTC extracts of the said survey number stands in the name of defendant Nos.1, 6 and 7. Considering the same, the plaintiffs have restricted their claim to 0.5 guntas in the said property based on some partition said to have been taken by the defendant Nos.1, 6 and 7. But no such partition deed is produced to substantiate the same. However, considering the said property being the joint

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family properties of the defendant Nos.1, 6 and 7 as held by the Trial Court, the plaintiff No.2 is entitled to the share in the said property. However, it is not to the extent of 1/5^th as held by the Trial Court. In view of the Co-ordinate bench decision in Padmavathi, supra, the said 0.5 guntas of the suit item No.2 has to be divided first between the plaintiff No.2 and defendant No.1 equally as the plaintiff No.1 and defendant No.2 have no right to claim for partition during the life time of defendant No.1. Thus, the plaintiff No.2 is entitled to ½ (half) share in item No.2.

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Item No.3 of the suit schedule properties is a house property. No material evidence is available on record to treat the same as the ancestral property except the tax assessment register/demand register of the Grama Panchayath wherein tax has been assessed to the said item No.3. It is trite that assessment of tax would not confer any title to the property. The plaintiffs

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have utterly failed to prove that item No.3 is the joint property amenable to partition.

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On re-appreciation of oral and documentary evidence and for the reasons aforesaid, we are of the considered view that plaintiff No.1 being the wife is not entitled to partition during the life time of defendant No.1. Plaintiff No.2 is entitled to ½ (half) share in item No.2 of the suit schedule properties. Hence, the

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following:

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ORDER

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