Dismissed

Mallavva W/O. Shivappa Mavinakatti v. Irappa S/O. Shivalingappa Mavinkatti

Karnataka HC26 Oct 2023RFA/100043/2014

Case brief

AI extract

What is this about?

The High Court dismissed the first appeal filed by defendants challenging a partition decree. The court held the land was joint family property since the appellants failed to prove the father paid the entire consideration or that the mother executed a relinquishment deed, leading to equal shares among coparceners.

What did the court decide?

Regular First Appeal No. 100043 of 2014 dismissed; Judgment and decree dated 28.01.2014 confirmed.

Mallavva W/O. Shivappa Mavinakatti Vs Irappa S/O. Shivalingappa… — Partition | Karnataka HC (2023)

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NC: 2023:KHC-D:12593 RFA No. 100043 of 2014

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 26^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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REGULAR FIRST APPEAL NO.100043/2014(PAR)

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BETWEEN:

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SMT. MALLAVVA

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W/O. SHIVAPPA MAVINAKATTI, AGE: 53 YEARS, OCC:HOUSEHOLD WORK, R/O: VINAYAK NAGAR, BEHIND COURT, BAILHONGAL,

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DISTRICT: BELAGAVI 591102.

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SRI VISHWANATH

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S/O. SHIVAPPA MAVINKATTI, AGE: 29 YEARS, OCC: SERVICE, R/O: VINAYAK NAGAR, BEHIND COURT, BAILHONGAL, DIST: BELAGAVI 591102.

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VIJAYALAKSHMIM KANKUPPI Digitally signedbyVIJAYALAKSHMIM KANKUPPI Date: 2023.12.1612:43:42 +0530

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SRI MAHABALESHWAR S/O. SHIVAPPA MAVINKATTI, AGE: 27 YEARS, OCC: PRIVATE SERVICE, R/O: VINAYAK NAGAR, BEHIND COURT, BAILHONGAL,

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DIST: BELAGAVI – 591102.

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SRI MAHANTESH S/O. SHIVAPPA MAVINKATTI, AGE: 25 YEARS, OCC: SERVICE, R/O: VINAYAK NAGAR, BEHIND COURT, BAILHONGAL,

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DISTRICT: BELAGAVI – 591102.

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…APPELLANTS

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(BY SRI CHETAN MUNNOLI, ADVOCATE)

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NC: 2023:KHC-D:12593 RFA No. 100043 of 2014

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AND:

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IRAPPA

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S/O. SHIVALINGAPPA MAVINKATTI, SINCE DECEASEDB BY HIS LR’S.

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SMT. SUSHILAVVA W/O. IRAPPA MAVINKATTI, AGE: 53 YEARS, OCC: HOUSEHOLD WORK, R/O: MARAKUMBI, TQ: SAUNDATTI, DIST: BELAGAVI 591126.

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MANJUNATH S/O. IRAPPA MAVINKATTI, AGE: 34 YEARS, OCC: HOUSEHOLD WORK, R/O. MARAKUMBI, TQ: SAUNDATTI, DIST: BELAGAVI 591126.

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SMT. SUSHILA W/O. SHETTEPPA PAREET, AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O. KANKANWADI, TQ: RAIBAG, DIST: BELAGAVI – 591317.

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SMT. NEELAVVA D/O. SHIVAPPA MAVINKATTI, AGE: 38 YEARS, OCC: HOUSEHOLD WORK, R/O: MARAKUMBI, TAL: SAUNDATTI, DIST: BELAGAVI – 591126.

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ADIVEPPA S/O. SHIVALINGAPPA MAVINKATTI, AGE: 36 YEARS, OCC: AGRICULTURE, R/O: MARAKUMBI, TQ: SAUNDATTI, DIST: BELAGAVI 591126.

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SMT. SUNANDA W/O. BASAVRAJ MAVINKATTI, AGE: 63 YEARS, OCC: HOUSEHOLD WORK, R/O: MARAKUMBI, TQ: SAUNDATTI, DIST: BELAGAVI 591126.

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3 - NC: 2023:KHC-D:12593 RFA No. 100043 of 2014

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MALLIKARJUN S/O. BASAVARAJ MAVINKATTI, AGE: 23 YEARS, OCC: AGRICULTURE, R/O: MARAKUMBI, TAL: SAUNDATTI, DIST: BELAGAVI 591126.

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8. SHASHIKANT

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S/O. BASAVRAJ MAVINKATTI, AGE: 63 YEARS, OCC: AGRICULTURE, R/O: MARAKUMBI, TAL: SAUNDATTI, DIST: BELGAUM 591126.

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LAXMI D/O. BASAVRAJ MAVINKATTI, AGE: 20 YEARS, OCC: STUDENT, R/O: MARAKUMBI, TAL: SAUNDATTI, DIST: BELAGAVI 591126.

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…RESPONDENTS

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(BY SRI SUMIT MELGIRI, ADVOCATE FOR SRI SHIVARAJ S. BALLOLI, ADVOCATE FOR R1 TO R5;

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NOTICE TO R6, R8 AND R9 ARE HELD SUFFICIENT; R7 IS SERVED)

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THIS RFA IS FILED UNDER SECTION 96 OF THE CODE OF

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CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 28.01.2014 IN O.S.NO.65/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE SAUNDATTI, AND THIS APPEAL BE ALLOWED WITH COSTS THROUGH OUT.

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

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4 - NC: 2023:KHC-D:12593 RFA No. 100043 of 2014

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JUDGMENT

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This appeal is filed by the defendant Nos.1, 2, 3 and 4 challenging the judgment and award passed in OS No.65/2011 dated 28.01.2014, passed by the Court of Senior Civil Judge, Saundantti calling in question the decreeing the suit of the plaintiffs granting 4/6^th share to the plaintiff Nos.1 to 4.

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For the purpose of convenience, the ranking of

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the parties is referred as per their status before the trial Court.

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It is the case of the plaintiffs that plaintiffs and defendants constitute Hindu Joint Family and the suit properties are joint family properties. Therefore, plaintiffs have filed suit for partition and for separate possession by metes and bounds and the trial court has decreed the suit, thereby plaintiffs are given 4/6^th share in the joint family properties.

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5 - NC: 2023:KHC-D:12593 RFA No. 100043 of 2014

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It is the case of the defendant Nos.1 to 4

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(appellants herein) that the suit property is agricultural land which was purchased by the Shivappa who is husband of defendant No.1 and father of defendant Nos.2 to 4, but, in the name of mother Basavva. Therefore, it is the case of defendant Nos.1 to 4 that the agricultural land is a exclusive property of Shivappa as he was working as guard in the Excise Department. Therefore, it is the case of the defendant Nos.1 to 4 that one of the suit item property agricultural land is not joint family property. But, it is self acquired property of Shivappa who is husband of defendant No.1 and father of defendant Nos.2 to 4. Therefore, challenged the judgment and decree passed by the trial court. Further, it is the case of the defendant Nos.1 to 4 that the mother Basavva had executed relinquishment deed in favour of Shivappa during his life time. Thus, it means the agricultural land is self acquired

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property of the deceased Shivappa. Therefore, submitted that suit property which is agricultural land is not

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6 - NC: 2023:KHC-D:12593 RFA No. 100043 of 2014

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amenable for partition as it is self acquired property of the deceased Shivappa.

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The trial court decreed the suit assigning reason that there is no evidence of defendant No.4 that Shivappa had contributed entire fund for purchasing agricultural land and the plaintiff No.1 is elder brother of Shivappa. Therefore, even though, the suit agricultural land is purchased in the name of mother Basavva, but it is by joint family fund as there is no partition at that time. Further, assigned the reason that the defendant Nos.1 to 4 have not produced relinquishment deed proving that Basavva relinquished the property in favour of Shivappa. Further assigned the reason that, just because in the mutation entries name of defendant Nos.1 to 4 is entered by mentioning relinquishment deed executed that does not prove that the Basavva had executed relinquishment deed. On these reasons decreed the suit.

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7 - NC: 2023:KHC-D:12593 RFA No. 100043 of 2014

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6. Upon considering the rival submissions of both

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the parties, point that arise for my consideration is as follows:

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circumstances, defendant Nos.1 to 4 prove that the suit agricultural land is self acquired property of Shivappa and thus, it is not amenable for partition. “

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The relationship between the parties is not disputed. Plaintiffs are children of Basavva. Shivappa

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andd Basavaraj are other sons of Basavva. Defendant Nos.1 to 4 are wife and children of deceased Shivappa.

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Defendant Nos.6 to 8 are children of Basavaraj and defendant No.5. This relationship in the family is not disputed. The suit agricultural land is in the name of mother Basavva is also not disputed. The defendants Nos.1 to 4 are contending that suit agricultural land was purchased by Shivappa but in the name of mother Basavva. It is contended that Shivappa was working as

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8 - NC: 2023:KHC-D:12593 RFA No. 100043 of 2014

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guard in the Excise Department. Just because Shivappa was working as guard in the Excise Department and was a government servant, it cannot be said that he has contributed entire amount for purchasing the suit agricultural land. Admittedly, plaintiff No.1 is elder brother of Shivappa. Therefore, in a family where all the coparceners are working, it is presumed that all have contributed for purchasing suit agricultural land in the name of their mother. There is no proof by the defendant Nos.1 to 4 that Shivappa alone has paid entire sale consideration amount for purchasing the suit agricultural land. When this being the fact, the trial court is correct in holding that the suit properties are joint family properties.

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Ex.D4 to D6 are mutation extracts entered in the name of defendant Nos.1 to 4 in respect of suit agricultural land. Just because the name of defendant Nos.1 to 4 entered in the suit land that does not mean that proving of relinquishment deed by mother Basavva in the absence of deed of relinquishment. Admittedly,

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defendant Nos.1 to 4 have not produced relinquishment deed. Therefore, by mere mentioning the names in the revenue records or entering the names of defendant Nos.1 to 4 in the mutation extracts by mentioning that there was relinquishment deed, it cannot be said that the relinquishment of property is proved. When the defendant Nos.1 to 4 are contending that Basavva had relinquished

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the suit agricultural land then, it is burden on the defendant Nos.1 to 4 to prove such relinquishment by producing relinquishment deed, mere mentioning in the mutation entry is not sufficient to prove that there was relinquishment deed. Therefore, the defendant Nos.1 to 4 have not produced any documents to show that the Shivappa alone has contributed the money for purchasing suit agricultural land in favour of mother Basavva and also the said Basavva had relinquished the suit agricultural land in favour of defendant Nos.1 to 4. On these two aspects, there is no evidence placed by the appellants-defendant Nos.1 to 4. Therefore, the trial Court is correct that the suit properties are joint family properties and the

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plaintiffs, Shivappa and Basavaraj are coparceners and entitled for share equally in the said property. This finding

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of fact arrived by the trial Court is based on the evidence on record as discussed above. Accordingly, I answer point for consideration in the negative. Therefore, the appeal is liable to be dismissed thereby confirming the judgment and decree passed by the trial Court.

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Hence, I proceed to pass the following:

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ORDER

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i) Regular First Appeal is dismissed.

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ii) The judgment and decree dated 28.01.2014 passed in OS No.65/2011, on the file of the Senior Civil Judge, Saundatti is confirmed.

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iii) No orders as to costs.

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iv) Draw decree accordingly.

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Sd/JUDGE

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HMB

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List No.: 2 Sl No.: 20 CT-ASC

Mallavva W/O. Shivappa Mavinakatti v. Irappa S/O. Shivalingappa Mavinkatti

Case brief

What is this about?

What did the court decide?

Mallavva W/O. Shivappa Mavinakatti v. Irappa S/O. Shivalingappa Mavinkatti

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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