Dismissed

Smt. Sharavva W/O Fakkirayya Mahantimath v. Smt. Channabasamma W/O Kuberagouda Patil

Karnataka HC13 Oct 2023RSA/100252/2023

Case brief

AI extract

What is this about?

Second appeal challenging RC affirming decree for partition of properties where occupancy rights granted under Karnataka Land Reforms Act were self-acquired. Court held daughters entitled to share via Hindu Succession Act as KLR Act lacks specific succession provision.

What did the court decide?

Second appeal dismissed as being devoid of merit at the stage of admission itself.

Smt. Sharavva W/O Fakkirayya Mahantimath Vs Smt. Channabasamma… — Partition | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C. M. POONACHA

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R.S.A. NO.100252 OF 2023 (PAR/POS)

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BETWEEN

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1 . SMT. SHARAVVA

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W/O FAKKIRAYYA MAHANTIMATH AGED ABOUT 63 YEARS, OCC. HOUSEWIFE, R/O. BAMMANAHALLI, TQ. HANGAL, DIST. HAVERI 581203.

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2 . SMT. NEELAVVA W/O ANANDAYYA MAHANTIMATH AGED ABOUT 39 YEARS, OCC. HOUSEWIFE, R/O. BAMMANAHALLI, TQ. HANGAL, DIST. HAVERI 581203.

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3 . KUM KAVERI D/O ANANDAYYA MAHANTIMATH AGED ABOUT 16 YEARS, OCC. STUDENT, R/O. BAMMANAHALLI, TQ. HANGAL, DIST. HAVERI 581203.

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4 . MAST. KARTIK D/O ANANDAYYA MAHANTIMATH AGED ABOUT 13 YEARS, OCCU. STUDENT, R/O. BAMMANAHALLI, TQ. HANGAL, DIST. HAVERI 581203.

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5 . SMT. NANDA W/O SHANKARAYYA MADLUR AGED ABOUT 40 YEARS, OCC. HOUSEWIFE, R/O. BAMMANAHALLI, TQ. HANGAL, DIST. HAVERI 581203.

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6 . SRI ARAVINDAYYA

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S/O FAKKIRAYYA MAHANTAMATH AGED ABOUT 37 YEARS, OCCU. AGRICULTURE, R/O. BAMMANAHALLI, TQ. HANGAL, DIST. HAVERI 581203.

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…APPELLANTS

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(BY SRI BASAVARAJ S SATANNAVAR, ADVOCATE)

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AND

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1 . SMT. CHANNABASAMMA W/O KUBERAGOUDA PATIL AGED ABOUT 77 YEARS, OCCU. AGRICUTLURE, R.O. VALAGERI, TQ. HANGAL, DIST. HAVERI 581203.

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2 . SMT. GOURAVVA W/O SADASHIVAYYA HIREMATH AGED ABOUT 60 YEARS, OCCU. HOUSEWIFE, R/O. BAMMANAHALLI, TQ. HANGAL, DIST. HAVERI 581203.

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3 . SMT. GEETA W/O SHANTAVEERAYYA HIREMATH AGED ABOUT 27 YEARS, OCCU. HOUSEWIFE, R/O. HIREKERUR, TQ. HANGAL, DIST. HAVERI 581111.

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4 . SMT. RESHMA

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W/O NAGAYYA HIREMATH AGED ABOUT 24 YEARS, OCCU. HOUSEWIFE,

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R/O. YELLAPUR (GADEDAGUDI), TQ. HANGAL, DIST. HAVERI 581203.

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5 . SMT. ANSUYA W/O FAKKIRAPPA MAHANTIMATH AGED ABOUT 64 YEARS, OCC. HOUSEWIFE, R/O. BAMMANAHALLI, TQ. HANGAL, DIST. HAVERI 581203.

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6 . SMT. GEETA W/O KUMARASWAMY PUJAR AGED ABOUT 35 YEARS, OCCU. HOUSEWIFE, R/O. BELAGALPETH, TQ. HANGAL, DIST. HAVERI 581104.

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7 . CHANNABASAYYA S/O SADASIVAYYA MAHANTIMATH AGED ABOUT 40 YEARS, OCC. AGRICULTURE, R/O. BAMMANAHALLI, TQ. HANGAL, DIST. HAVERI 581203.

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…RESPONDENTS

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(BY SRI MAHESH WODEYAR, ADVOCATE FOR CAVEATOR/R1)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 14.11.2022 PASSED IN R.A.NO.23/2022 ON THE FILE OF THE FAMILY COURT, HAVERI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.10.2018, PASSED IN O.S. NO.9/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HANGAL, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 27.09.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, THIS COURT PRONOUNCED THE FOLLOWING:

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JUDGMENT

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The above second appeal is filed under Section

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100 of the CPC (hereinafter referred to as ‘the Code of Civil Procedure’) by Defendant No.5(b), 5(d)(i), 5(d)(ii), 5(d)(iii), 5(e) and 5(f) challenging the Judgment and decree dated 14.11.2022 in R.A.No.23/2022 by the Family Court, Haveri, (hereinafter referred to as the ‘first appellate Court’) and the Judgment and decree dated 01.10.2018 in O.S.No.9/2018 by the Senior Civil Judge and JMFC Court, Hangal (hereinafter referred to as ‘the trial Court’).

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The parties will be referred to as per their ranking before the trial Court for the sake of convenience.

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It is the case of the plaintiff that, the propositus was one Gadigeyya and the plaintiff, defendant No.5 and deceased Sadashivayya are the children of the said propositus. The deceased Sadashivayya had two wives namely Gurupadavva and the defendant No.2. The defendant No.1 is the son of Sadashivayya through his first wife and defendant Nos.3 and 4 are the children of Sadashivayya

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through the defendant No.2. All the suit properties were the absolute properties of the propositus Gadigayya.

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That the suit Schedule A properties were the tenanted properties of propositus Gadigayya and after coming into force of Karnataka Land Reforms Act, occupancy right in respect of the suit properties was conferred in favour of Gadigeyya. That, after the death of Gadigeyya, the plaintiff and defendants being his legal heirs have inherited the suit properties. That there was no partition of the suit properties either during the life time of Gadigeyya or after his death. That the plaintiffs sought for the share in the suit properties and the same is refused by the defendants. Hence, they have filed the suit for partition.

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The defendants have entered appearance and contested the case of the plaintiff. The defendant Nos.1 to 5 have filed their written statement. After the death of defendant No.5, his legal heirs were brought on record and have filed memo and adopted the written statement filed by the defendant No.5. The defendants in their written

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statement have denied that the plaintiff and the defendants are in joint possession of the suit properties. However, it is admitted that the suit properties are the self acquired properties of the propositus Gadigeyya. It is the contention of the defendants that, the propositus Gadigeyya and his son Sadashivayya have performed the marriage of the plaintiff by spending huge amounts and at the time of her marriage, in lieu of her share in the properties, gold and cash were given. That after the death of Gadigeyya, the plaintiff submitted a Vardi to enter her name in respect of suit properties i.e., R.S.No.60 and R.S.No.64. The father of the defendant No.1 and defendant No.5 have filed objections and there were proceedings before the revenue authorities. That on 15.01.1997, the plaintiff received an amount of Rs.10,00,000/-, five tolas of gold from Sadashivayya and defendant No.5 and thereby she relinquished her share in the suit properties. Reposing confidence and faith, in the plaintiff, no document was reduced into writing. Hence, the

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defendants sought for dismissal of the suit filed by the plaintiff.

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The trial Court consequent to the pleadings of the

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parties, framed five issues. The plaintiff examined herself as P.W.1 and Ex.P.1 to Ex.P.13 were marked in evidence. Defendant No.5(f) was examined as D.W.1 and another witness was examined as D.W.2. No documents were marked on behalf of the defendants. The trial Court by its Judgment and decree dated 01.10.2018 decreed the suit of the plaintiff

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and passed the following order:

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“Suit of the plaintiff is hereby decreed with costs.

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The plaintiff is entitled for 1/3^rd share in suit A and B schedule mentioned properties by metes and bounds.

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The defendants No.1 to 4 being the legal heirs of deceased Sadashivayya, they altogether entitled for 1/3^rd share in suit A and B schedule mentioned properties by metes and bounds.

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The defendants No.5(a) to 5(f) being the legal heirs of deceased Fakkirayya, they altogether entitled for 1/3^rd share in suit A and B schedule mentioned properties by metes and bounds.

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Draw preliminary decree accordingly.”

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Being aggrieved, R.A.no.23/2022 was filed by the

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defendant No.1 and the legal representatives of the defendant

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No.5. The plaintiff entered appearance in the said proceedings and

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contested the same. I.A.Nos.2 and 4 were filed under Order 41 Rule 27 of CPC, by the appellants in the first appeal. The first appellate Court by its Judgment and decree dated 14.11.2022 dismissed R.A.No.23/2022, confirmed the decree of the trial Court, as also dismissed I.A.Nos.2 and 4 filed under Order 41 Rule 27 of CPC. Being aggrieved, the present second appeal is filed.

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Learned counsel for the appellants vehemently

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contended that, the trial Court as well as the first appellate Court has erred in not considering the fact that, the plaintiff is the married daughter and not a co-parcener and a family member as per Section 2(12) of the Karnataka Land Reforms Act and that, the plaintiff has no claim in respect of the suit properties. In support of his contention, he relies on the following Judgments :

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i) Mrs. Pushpa Vs. Mrs. Gangu Poojarthi¹ ;

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ii) Kanna Timma Kanaji Madiwal Vs. Ramachandra Timmayya Hegde² .

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Per contra, learned counsel for the respondents

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submits that, the question of law that is sought to be urged by the

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1 RSA 633/2018, judgment dated 13.8.2018

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2 (2021) 14 SCC 309

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appellant in the present second appeal is covered by the Division Bench Judgment of this Court in the cases of :

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i) Girija Vs. Ramanagouda³ ;

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ii) Ramesh Sangappa Ragha @ Raghannavar Vs. Smt. Kushanavva⁴ ;

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iii) Sri Arvind Vs. Smt. Sunanda⁵

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I have considered the submissions of both the learned counsels and perused the material available on record. Before considering the contentions putforth by the learned counsels, it is necessary to notice the findings recorded by the trial Court and the first appellate Court.

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The trial Court has framed the issues as follows:

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(i) Whether plaintiffs prove that the suit schedule A and B properties are joint family properties of plaintiff and defendants?

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(ii) Whether plaintiffs proves that, she is entitled for 1/3^rd share in the suit schedule A and B properties?

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(iii) Whether defendant proves that plaintiff has taken her share in the suit property in the

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3 RFA 100194/2015, judgment dated 3.3.2022

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4 RFA No.100274/2017, judgment dated 5.10.2020

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5 RFA No.100149/2014, judgment dated 13.1.2020

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form of Rs.10,000/- cash and 5 tolas of gold on 15.01.1997 in presence of panchas and relinquished her rights in the suit schedule A and B properties?

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(iv) Whether plaintiff is entitled for the reliefs claimed?

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(v) What order or decree?

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While recording its findings with regard to issue No.1, it has been noticed that, the suit properties are the absolute properties of propositus Gadigayya which were granted to him pursuant to the order of the Land Tribunal. The trial Court has recorded a finding that the plaintiffs have sufficiently established that the suit A and B properties are the absolute self acquired properties of the propositus. The trial Court has also noticed that, although the defendants have contended that the plaintiff has relinquished her share in the suit properties, there is no document on record evidencing the same. The trial Court noticing the definition of the family as provided under Section 2(12) and noticing Section 24 of the Land Reforms Act, has decreed the suit of the plaintiff.

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In the appeal preferred by the defendants, the first appellate Court has considered the contentions put forth and upon

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a re-appreciation of the oral and documentary evidence on record has affirmed the findings recorded by the trial Court. The first appellate Court noticing the Judgment of the division Bench of this Court in the case of Nimbavva and Others Vs. Channaveerayya and Others⁶ as also in the case of Ramesh Sangappa Ragha⁴ has followed the Judgment in the case of Ramesh Sangappa Ragha⁴ , since it was a later Judgment.

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Having regard to the findings recorded by the trial Court and the first appellate Court, it is relevant to note that both the Courts have concurrently held that the suit properties are the absolute self-acquired properties of the propositus. It is further relevant to note that the grant in favour of the propositus was on 19.5.1976 and the propositus died on 30.1.1989. The suit was filed in the year 2018.

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15. In the case of N.Padmamma v. S.Ramakrishna

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Reddy⁷ , the Hon'ble Supreme Court was considering a question as to whether a suit for partition could be entertained in respect of the lands, in which occupancy rights have been granted. After

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6 RFA NO.4150/2012

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7 (2015) 1 SCC 417

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considering various judgments, the Hon'ble Supreme Court has held as follows:

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“15. ……… The suit in the present case was filed after the grant of occupancy rights. The question here is whether the grant of such rights is for the benefit of one of the members of the joint family or for all the heirs left behind by Ramachandra Reddy. Our answer to that question is in favour of the appellants. In our opinion, the grant of such occupancy rights in favour of Respondent 1 was for the benefit of all the legal heirs left behind by Ramachandra Reddy. Reliance upon Lokraj case [Lokraj v. Kishan Lal, (1995) 3 SCC 291] , therefore, is of no assistance to the respondents. We are also of the view that the decision in Lokraj case [Lokraj v. Kishan Lal, (1995) 3 SCC 291] , does not correctly apply the earlier decision of this Court in Bhubaneshwar Prasad Narain Singh case [Bhubaneshwar Prasad Narain Singh v. Sidheswar Mukherjee, (1971) 1 SCC 556] . With utmost respect to the Hon'ble Judges who delivered the decision in Lokraj case [Lokraj v. Kishan Lal, (1995) 3 SCC 291] , the law was not correctly laid down, if the same was meant to say that even in the absence of a plea of ouster, a co-heir could merely on the basis of grant of the occupancy rights in his name exclude the other co-heirs from partition of the property so granted.”

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(emphasis supplied)

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A Division Bench of this Court in the case of Arvind⁵

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noticed the judgment of the Hon’ble Supreme Court in the case of N.Padmamma⁷ and also having noticed Section 2(12) and Section 24 of the Karnataka Land Reforms Act, 1961, has held as follows:

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“ 26. In the case on hand, the property in question was admittedly cultivated by Sri Narasimha Venkatesh Kamat as a tenant and he filed an application seeking grant of occupancy rights and the occupancy rights were indeed granted to Sri Narasimha Venkatesh Kamat. Thus the lands that vested in the Government were divested in favour of Sri Narasimha Venkatesh Kamat thus creating a fresh right, title and interest and therefore, these lands became the absolute properties of Sri Narasimha Venkatesh Kamat. He having died intestate on 01.04.1989, there cannot be any doubt that his successors, who are the plaintiffs and the defendant Nos.1 to 6 are entitled to an undivided 1/9th share in the suit schedule properties by operation of Section 8 of the Hindu Succession Act. The defendant Nos.2 and 3 / appellants herein were unable to show any provision in the KLR Act that determined the succession of the lands in question after the death of Sri Narasimha Venkatesh Kamat. As a matter of fact, there is no provision delineating the mode of succession to the lands that are

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conferred on tenants under the KLR Act and the only substantive provision that determines succession to such

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properties is section 8 of the Hindu Succession Act, 1956, which is a central legislation.”

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(emphasis supplied)

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It is relevant to note, the Division Bench in the case of Arvind⁵ has also noticed the earlier Division Bench judgment in the case of Nimbavva⁶ and distinguished the same, inasmuch as, it was noticed that in the case of Nimbavva⁶ the propositus died on 4.1.1974 i.e., prior to 1.3.1974, which was the appointed date under the Karnataka Land Reforms Act and occupancy rights was granted in respect of one of the sons of the original tenant and hence, it was held in the said case that the person who was registered as an occupant became the absolute owner and the married daughters were not entitled to seek occupancy rights as they were not the members of a family.

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It is relevant to note that the facts of the present case and the facts in the case of Arvind⁵ are similar and the judgment rendered in the case of Arvind⁵ is squarely applicable to the facts of the present case.

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A Division Bench in the case of Ramesh Sangappa Ragha⁴ has also held that the Plaintiff in the said case who was

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one of the daughters of the deceased propositus was also entitled to a share in the suit properties.

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A Division Bench in the case of Girija³ has also held that in the said case partition was required to be effected under the provisions of the Hindu Succession Act, 1956.

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Reliance placed by the learned Counsel for the appellants on the case of Mrs. Pushpa¹ will not aid the case of the appellants inasmuch as, the said judgment is rendered by a co-ordinate Bench of this Court, which has followed the judgment in the case of Nimbavva⁶ .

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Reliance placed by the learned Counsel for the appellants on the case of Kanna Timma Kanaji Madiwal² will not aid the case of the appellants as the facts of the said case arose out of a situation where Form No.7 was rejected by the Land Tribunal and the same was challenged before the appellate authority as well as the High Court and the Hon'ble Supreme Court. In the said proceedings, the original applicant having died, the same was pursed by his legal representatives. The right claimed by the legal representatives was also adjudicated in a civil suit between the parties. Hence, the facts of the said case are

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completely different from the facts of the present case. In any event, in the said case, the Hon'ble Supreme Court has not held that the daughters are not entitled to a share in lands in respect of which occupancy rights are granted.

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In view of the factual position as noticed at para 14 hereinabove and in view of the legal position as has been authoritatively pronounced in the case of Arvind⁵ , the appellants have failed in demonstrating that any substantial question of law arises for consideration in the present appeal.

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Hence, the above appeal is dismissed as being devoid of merit at the stage of admission itself.

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Sd/JUDGE

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SVH/ nd

Smt. Sharavva W/O Fakkirayya Mahantimath v. Smt. Channabasamma W/O Kuberagouda Patil

Case brief

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Smt. Sharavva W/O Fakkirayya Mahantimath v. Smt. Channabasamma W/O Kuberagouda Patil

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