Partly allowed

Sri. Mahaveer S/O. Shreepal Chavaj v. Smt. Champawwa W/O. Shreepal Chavaj

Karnataka HC11 Jul 2022RSA/100856/2017

Case brief

AI extract

What is this about?

The High Court dismissed the Second Appeal for lack of substantial question of law but modified the decree. The court held that all three children are entitled to one-third share each in the joint family property, correcting the earlier share allocation due to the death of one co-owner during proceedings.

What did the court decide?

Appeal dismissed; judgment and decree modified to grant 1/3rd share each to the three children in the suit property.

Sri. Mahaveer S/O. Shreepal Chavaj Vs Smt. Champawwa W/O… — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 11^TH DAY OF JULY, 2022

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BEFORE

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THE HON'BLE MR JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100856 OF 2017 (PAR-)

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BETWEEN:

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SRI. MAHAVEER S/O. SHREEPAL CHAVAJ AGED ABOUT 55 YEARS, OCC: AGRICULTURE, R/OAT TERDAL, TQ:JAMKHANDI-587313, DIST:BAGALKOT.

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…APPELLANT (BY SRI. SACHCIDANAND B. PATIL FOR SRI.MRUTYUNJAY TATA BANGI, ADVOCATE)

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AND:

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SMT. CHAMPAWWA W/O. SHREEPAL CHAVAJ SINCE DECEASED BY LRS.

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SMT KASTURI @ PUSHPALATHA W/O. MAHAVEER PATIL AGED ABOUT 60 YEARS, OCC:HOUSEHOLD & AGRICULTURE, R/AT MAHAVEER A. PATIL, A N LANDI HOUSE, H.NO.77, WAKHAR BHAG, SANGLI, DIST:SANGALI, MAHARASHTRA-416410.

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SMT.SUNANDA W/O. AJIT CHOUGALE AGED ABOUT 54 YEARS, OCC:HOUSEHOLD WORK, R/AT AJIT CHAUGALE, H.NO.143, PLOT NO.117, UMA NAGAR,

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2^ND PHASE, SOLAPUR, MAHARASHTRA-410422.

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…RESPONDENTS

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(BY SRI.SHIVARAJ P. MUDHOL, ADVOCATE FOR R1 & R2)

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THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE JUDGEMENT & DECREE DTD:26.07.2017 PASSED IN R.A.NO.36/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BANAHATTI DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD:30.08.2014, PASSED IN O.S. NO.59/2007 ON THE FILE OF THE LEARNED CIVIL JUDGE (JR.DN.) BANAHATTI, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY. THE COURT MADE THE FOLLOWING:

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ORDER

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This Regular Second Appeal is filed by defendant No.1 in R.A.No.36/2016 (Old RA No.57/2014) on the file of the Court of Senior Civil Judge and JMFC, Banahatti (hereinafter referred to as ‘the First Appellate Court’, for brevity), confirming the Judgment and Decree dated 30.08.2014 passed in O.S.No.59/2007 on the file of the Civil Judge (Jr.Dn.), Banahatti (hereinafter referred to as ‘the trial Court’, for brevity) decreeing the suit in part.

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�� For the sake of convenience, the parties to this appeal shall be referred to in terms of their status and ranking before the trial Court.

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�� It is the case of the plaintiffs that, plaintiff No.1 is the wife of Shripal Chavaj and plaintiffs No.2 and 3 and defendant are

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the children of late Shripal Chavaj and the plaintiff No.1. It is the case of the plaintiffs that, the original propositus Shripal Chavaj died on 22.01.2007 leaving behind the plaintiffs and defendant as the legal representatives to succeed to the estate of deceased Shripal Chavaj. It is further stated in the plaint that the plaintiffs made a claim for division of the joint family property and the same was denied by the defendant and as such, plaintiffs filed O.S.No.59/2007 on the file of the trial Court seeking partition and separate possession in respect of the suit schedule property.

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�� On service of notice, the defendant entered appearance and accepted the relationship between the plaintiffs and defendant. However, it is the specific defence of the defendant that the plaintiffs are not entitled for share in the property and accordingly sought for dismissal of the suit

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�� The trial Court based on the pleadings on record formulated issues for its consideration. In order to establish their case, plaintiffs No.2 was examined herself as PW1 and produced 5 documents and same were marked as P1 to P5. Defendants have examined 3 witnesses as DWs.1 to 3 and produced one document as Ex.D1.

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�� The trial Court after considering the material on record, by its judgment and decree dated 30.08.2014, decreed the suit holding that the plaintiffs are entitled for 3/4^th share in the suit schedule property. Being aggrieved by the same, defendant has preferred R.A.No.57/2014 before the First Appellate Court and the same was renumbered as R.A.No.36/2016. The said appeal was contested by the plaintiffs. The First Appellate Court after considering the material on record by its judgment and decree dated 26.07.2017, dismissed the appeal and as such, confirmed the judgment and decree passed in O.S.No.59/2007 by the trial Court. Being aggrieved by the same, the defendant has preferred this appeal.

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�� I have heard Sri. Sachchidanand B. Patil, learned counsel appearing for the appellant and Sri. Shivaraj P. Mudhol, learned counsel appearing for respondents No.1 and 2. Perused the records.

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�� Learned counsel appearing for the appellant contended that, there was earlier settlement between and among the plaintiffs and defendant and therefore, claiming share thereafter by the plaintiffs ought not to have been accepted by both the

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Courts below and accordingly submitted, same requires to be considered in this appeal. He further contended that, plaintiff No.1 died on 08.02.2015 and accordingly, he sought for devolution of the property.

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�� Per contra, learned counsel appearing for the respondents, admitted the death of plaintiff No.1 on 08.02.2015 and as such, sought for dismissal of the appeal, as the finding recorded by both the Courts below is just and proper.

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�� In the light of the submissions made by learned counsel appearing for the parties, I have carefully considered the undisputed facts that the plaintiff No.1 is the wife of Shripal. Plaintiff No.1 and Shripal had 3 children, namely, plaintiffs No.2 and 3 and defendant. It is also not disputed that the father of plaintiffs No.2 and 3 and defendant died on 22.01.2007 and plaintiff No.1 died on 08.02.2015. perusal of the finding recorded by the trial Court would indicate that the suit schedule properties are the joint family properties of plaintiffs No.2 and 3 as well as the defendant. Therefore, plaintiffs No.2 and 3 along with the defendant are entitled for 1/3^rd share in the suit schedule property,

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and the said aspect has not been countered by the learned counsel appearing for the parties.

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�� In that view of the matter, I do not find any acceptable grounds to interference with the finding recorded by the Courts below with regard to the nucleus of joint family property of late Shripal and the same has to be devolved among his children. In view of the death of plaintiff No.1 on 08.02.2015, I am of the view that plaintiffs No.2 and 3 with the defendant are entitled for 1/3^rd share each in the suit schedule property and the said aspect has been considered by the First Appellate Court after re-appreciating the entire material on record except the modification of the shares. Hence, I do not find any merit in the appeal and accordingly, the appeal is required to be dismissed at the stage of admission as the appellants have not made out a case for formulation of substantial question of law as required under Section 100 of the Code of Civil Procedure. However, taking into consideration the fact that plaintiff No.1 died on 08.02.2015 during the pendency of the proceedings, plaintiffs No.2 and 3 along with the defendant are entitled for 1/3^rd share each in the suit schedule property. In the result, I pass the following:

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ORDER

i. The appeal is dismissed.

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ii. Judgment and Decree passed by the Courts below are modified in respect of the shares that plaintiffs No.2 and 3 along with the defendant entitled for 1/3^rd share each in the suit schedule property left by the original propositus Shripal Chavaj.

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gab

Sri. Mahaveer S/O. Shreepal Chavaj v. Smt. Champawwa W/O. Shreepal Chavaj

Case brief

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Sri. Mahaveer S/O. Shreepal Chavaj v. Smt. Champawwa W/O. Shreepal Chavaj

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