Dismissed

Smt. Gangi Bai v. Dhariya Naik @ Dhariyasingh

Karnataka HC7 Dec 2023RSA/1068/2018

Case brief

AI extract

What is this about?

In this regular second appeal, the High Court of Karnataka dismissed the appeal filed by co-appellants challenging the concurrent findings of lower courts. The courts held that an 1967 registered partition deed severed the joint Hindu family bar of 2006, as governed by Vinceta Prov1956 and Pt 6(5) Act. Applicability1956 denies partition suit applicability of Hindu Succession Act, 1956 barring a pa

What did the court decide?

The appeal regular second appeal dismissed all pending applications disposed of.

Smt. Gangi Bai Vs Dhariya Naik @ Dhariyasingh — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:44300 RSA No. 1068 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 1068 OF 2018 (PAR)

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BETWEEN:

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SMT. GANGI BAI, W/O LATE KEERYA NAIK, AGED ABOUT 69 YEARS, R/A MAHARAJANAHATTI, MEDAGINAKERE POST, JAGALORE TALUK, DAVANAGERE DISTRICT - 577 528.

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DHAWAJA NAIK, S/O LATE LACCHA NAIK, AGED ABOUT 55 YEARS, R/AT E-HOSAHATTI VILLAGE AND POST BARMASAGAR HOBLI, CHITRADURGA TALUK,

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Digitally signed by SUCHITRA M J Location: High Court of Karnataka

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CHITRADURGA DISTRICT - 577 501.

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(BY SRI. RAMU K.S, ADVOCATE)

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…APPELLANTS

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AND:

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DHARIYA NAIK @ DHARIYASINGH, S/O LATE TAKRYA NAIK, R/A MTS COL. L.M.O., A.M.C., DOOR NO.78, II STAGE, GOKULAM, 12TH CROSS, V.V.MAHAL, MYSURU - 570 002.

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2 - NC: 2023:KHC:44300 RSA No. 1068 of 2018

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TAKUR NAIK, S/O LATE NINGA NAIK, AGED ABOUT 63 YEARS,

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SMT.LALITHA BAI, W/O RAMA NAIK, D/O LATE NINGA NAIK, AGED ABOUT 56 YEARS

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SMT.LEELA BAI, W/O CHANDRA NAIK, D/O LATE NINGA NAIK, AGED ABOUT 57 YEARS

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KOTI NAIK, S/O NINGA NAIK, AGED ABOUT 48 YEARS,

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SRI. VENKATESH NAIK S/O LATE NINGA NAIK, AGED ABOUT 45 YEARS,

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SMT. LAKSHMI BAI, W/O HANUMATH NAIK, D/O LATE NINGA NAIK, AGED ABOUT 43 YEARS

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K. MAHANTESH S/O LATE KEERYA NAIK, AGED ABOUT 42 YEARS,

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K. SHIVA NAIK S/O LATE KEERYA NAIK, AGED ABOU 40 YEARS,

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3 - NC: 2023:KHC:44300 RSA No. 1068 of 2018

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K. HANUMANTH NAIK, S/O LATE KEERYA NAIK, AGED ABOUT 37 YEARS,

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SMT. GANGA BAI, W/O ASHOK NAIK, S/O LATE KEERYA NAIK, AGED ABOUT 33 YEARS,

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VENKATESH NAIK, S/O LATE KEERYA NAIK, AGED ABOUT 34 YEARS,

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NAGARAJ NAIK S/O LATE KEERYA NAIK, AGED ABOUT 32 YEARS,

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SHANKAR NAIK, S/O LATE KRISHNA NAIK, AGED ABOUT 56 YEARS,

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KOTRESH NAIK,, S/O LATE KRIKSHNA NAIK, AGED ABOUT 52 YEARS

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VEERUPAKSHI NAIK, S/O LATE KRISHNA NAIK, AGED ABOUT 48 YEARS,

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CHANDRA NAIK,

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S/O LATE KRISHNA NAIK, AGED ABOUT 43 YEARS R2 TO R17 ARE R/A MAHARAJANAHATTI, JAGALORE TALUK, DAVANAGERE DISTRICT - 577 528.

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SMT. RATHNI BAI W/O LATE SHANKARA NAIK, AGED ABOUT 59 YEARS,

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SMT. LALITHA BAI, W/O HANUMATA NAIK, D/O LATE SHANKAR NAIK, AGED ABOUT 43 YEARS,

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SMT.BHAGYA BAI, W/O ESHAWAR NAIK, D/O LATE SHANKARA NAIK, AGED ABOUT 40 YEARS,

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SMT.GEETHA BAI, W/O THIPPESH NAIK, D/O LATE SHANKARA NAIK, AGED ABOUT 37 YEARS,

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SMT. JAYA BAI, W/O MANJA NAIK, D/O LATE SHANKARA NAIK, AGED ABOUT 34 YEARS, R8 TO R22 ARE R/A ISMAUDRA-HOSAHATTI VILLAGE AND POST, BHARAMA SAGARA HOBLI, CHITRADURGA TALUK & DISTRICT - 577 501.

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RAMA NAIK, S/O LATE LACHHA NAIK, AGED ABOUT 61 YEARS R/A MAHARAJANAHATTI, JAGALORE TALUK, DAVANAGERE DISTRICT - 577 528.

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SMT. RENUKAMA, W/O LATE MURTHY NAIK, AGED ABOUT 30 YEARS,

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HALESH NAIK,

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S/O LATE MURTHY NAIK, AGED ABOUT 30 YEARS,

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KUM. ASHA, D/O LATE MURTHY NAIK, AGED ABOUT 23 YEARS,

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RAJU,

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S/O LATE MURTHY NAIK, AGED ABOUT 20 YEARS R24 TO R27 ARE R/A ISAMUDRA-HOSAHATTI VILLAGE AND POST, BHARAMA SAGARA HOBLI, CHITRADURGA TALUK & DISTRICT - 577 501.

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SMT. GOWRI BAI, D/O LATE LACHHA NAIK, W/O KRISHANA NAIK, AGED ABOUT 58 YEARS, R/A ARBHAGATTA VILLAGE, BHARAMASAGAR HOBLI, CHITRADURGA TALUK & DISTRICT - 577 501.

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SMT. KAMLI BAI, D/O LATE LACHHA NAIK, W/O TOGYA NAIK, AGED ABOUT 48 YEARS, R/A TANIGEHALLI VILLAGE, KANDAVADI POST HOLAKERE TALUK, CHITRADURGA DISTRICT - 577 526.

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JYOTHI NAIK,

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S/O LATE K. NAGENDRA NAIK, AGED ABOUT 35 YEARS, R/A JOTHIPURA MAJURE GANDHINAGAR VILLAGE, JAGALORE TALUK, DAVANAGERE DIST. - 577 528.

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SMT. KOUSLYA BAI, W/O N. SHANTHA NAIK, D/O RAJAKER NAIK, R/A JOTHIPURA MAJURI GANDHINAGAR VILLAGE, JAGALORE TALUK, DAVANAGERE DIST. - 577 528.

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OJASWINI,

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D/O LATE J.S.B RAJU, AGED ABOUT 26 YEARS,

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RANI,

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D/O LATE J.S.B. RAJU, AGED ABOUT 22 YEARS, BOTH ARE R/A MANJUNATHA NILAYA, INDIRA BANDAVANE, JAGALORE TOWN, JAGALURU TALUK.

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SMT. B. NANDA,

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W/O LATE J.S.B. RAJU, AGED ABOUT 45 YEARS, MANJUNATHA NILAYA, INDIRA BANDAVANE, JAGALORE TOWN, JAGALURU TALUK - 577 528.

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SMT. RUKMINI, W/O LATE DHARIYASINGH,

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AGED ABOUT 64 YEARS, R/A NP. 78, 2ND STAGE, GOKULAM, 4TH MAIN ROAD, V.V.MOHALLA, MYSURU - 570 002.

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SMT. DR. CHAYA, W/O KARNEL ASHOK KUMAR, AGED ABOUT 49 YEARS,

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SMT. MAYA, W/O ANIL, AGED ABOUT 43 YEARS,

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SMT. BHAGYA RAKESH, W/O RAKESH BOLA, AGED ABOUT 41 YEARS,

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SMT. HERA ARAVINDH, W/O ARAVINDH, AGED ABOUT 38 YEARS, R36 TO 39 ARE R/A NO.78, 2ND STAGE, GOKULAM, 4TH MAIN ROAD, V.V.MOHALLA, MYSURU - 577 002.

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BADDAYA NAIK, S/O LATE PORYA NAIK, AGED ABOUT 73 YEARS,

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SMT. SHANTHA BAI, W/O LATE PUTTA NAIK, AGED ABUT 63 YEARS,

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THIPPESWAMY, S/O LATE PUTTA NAIK, AGED ABOUT 46 YEARS.

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SMT. SUSHEELA BAI W/O BASAVARAJ NAIK.J, D/O LATE PUTTA NAIK, AGED ABOUT 43 YEARS,

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SMT.GEERIJA BAI, W/O LINGARAJ, D/O LATE PUTTA NAIK, AGED ABOUT 38 YEARS,.

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KALYA NAIK, S/O LATE PORYA NAIK, AGED ABOUT 65 YEARS,

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REVANI NAIK, S/O LATE PORYA NAIK, AGED ABOUT 64 YEARS

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SMT. SHARADI BAI W/O LATE TEJYA NAIK, AGED ABOUT 53 YEARS,

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THIPPESH NAIK, S/O LATE TEJYA NAIK, AGED ABOUT 27 YEARS,

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SMT.MANJULA BAI, W/O DANYA NAIK, D/O LATE TEJYA NAIK, AGED ABOUT 29 YEARS,

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SMT. SHARADA BAI, W/O LATE ONKAR NAIK, D/O LATE PORYA NAIK, AGED ABOUT 51 YEARS, R40 TO 50 ARE R/A CHINNASAMUDRA VILLAGE,

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NERLIGI,

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DAVANAGERE TALUK AND DIST. - 577 556.

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SMT. PARIBAI, W/O KRISHNA NAIK, AGED ABOUT 62 YEARS,

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SOMLA NAIK, S/O DASYA NAIK, AGED ABOUT 58 YEARS,

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SMT. BADRIBAI, W/O OBAYA NAIK, AGED ABOUT 57 YEARS,

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NAGESH NAIK, S/O OBAYA NAIK, AGED ABOUT 43 YEARS,

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PUTTA NAIK, S/O OBAYA NAIK, AGED ABOUT 42 YEARS,

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TIPPESH NAIK, S/O OBAYA NAIK, AGED ABOUT 40 YEARS,

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SMT. SEETHABAI, W/O RAMDAS NAIK, AGED ABOUT 54 YEARS,

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SMT. MANGALI BAI, W/O ONKAR NAIK, AGED ABOUT 53 YEARS,

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D. VEERANNA,

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S/O DASAYA NAIK, AGED ABOUT 50 YEARS,

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SMT. RUKMINI BAI, W/O VEERAYA NAIK, D/O DASAYA NAIK, AGED ABOUT 48 YEARS,

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SMT. PADMA BAI, W/O LATE CHANDRA NAIK, D/O DASAYA NAIK, AGED ABOUT 45 YEARS, R51 TO 61 ARE R/A GOKALAHATTI VILLAGE, GUTTIDURGA POST, JAGALORE TALUK, DAVANAGERE DIST. - 577 528.

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SMT. LOLABAI W/O VENKATESH NAIK, D/O MOTHI NAIK, AGED ABOUT 41 YEARS,

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SMT. LINGESH NAIK, S/O MOTHI NAIK, AGED ABOUT 39 YEARS, R/AT MAHARAJAHATTI, MEDAGINAKERE POST, JAGLUR TALUK, DAVANAGERE DIST. - 577 528.

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SMT. LAKSHMIBAI, W/O HALA NAIK, D/O LATE KRISHNA NAIK, AGED ABOUT 48 YEARS, R/A GOKALAHATTI VILLAGE, GUTTIDURGA POST,

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11 - NC: 2023:KHC:44300 RSA No. 1068 of 2018

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JAGGUR TALUK,

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DAVANAGERE DIST. - 577 528.

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SMT. RAJUBAI, W/O PAKKER NAIK, D/O KRISHNA NAIK, AGED ABOUT 46 YEARS, R/A MAHARAJAHATTI VILLAGE, MEDAGINAKERE POST, JAGALORE TALUK, DAVANAGERE DIST. - 577 501.

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SMT. PAMPABAI, W/O NAGARAJA NAIK, D/O KRISHNA NAIK, AGED ABOUT 44 YEARS, R/A ARABAGATTA VILLAGE, HALUAVADARA POST, CHITRADURGA TALUK, CHITRADURGA DIST. - 577 501.

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SMT.VANITHABAI, W/O PAKKER NAIK, D/O KRISHNA NAIK, AGED ABOUT 39 YEARS R/A MAHARAJAHATTI VILLAGE, MEDAGINAKERE POST, JAGALORE TALUK, DAVANAGERE DIST. - 577 528.

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…RESPONDENTS

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(BY SRI. SHRIDHARA K, ADVOCATE FOR R1, R35 AND R36; SRI. B.S. NAGARAJ, ADVOCATE FOR R32 TO R34; R5 TO R14, 16, 17, 22, 28, TO 31, R50, 52, 53, 56, 62 TO 67 ARE SERVED AND UNREPRESENTED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 25.10.2017 PASSED IN R.A.NO.11/2015 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 17.11.2014 PASSED IN O.S.NO.320/2006 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, DAVANAGERE.

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

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JUDGMENT

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The captioned second appeal is filed by the unsuccessful plaintiffs assailing the concurrent judgments of the Courts below, wherein plaintiffs' suit seeing partition and separate possession is dismissed by both the Courts.

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For the sake of brevity, the rank of the parties

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are referred as they are ranked before the Trial Court.

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13 -

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NC: 2023:KHC:44300 RSA No. 1068 of 2018

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3. The family tree of the family is as under:

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Keerya Naika (Dead) Seethabai Valyanaika @ Valyasingh (dead) Takranaika (dead) Wife Pakeeribai @ Ramibai (dead) Wife Amnibai (dead) Daughter Bheemnibai @ Bheemibai (dead) Husband Hemibai Sonibai D2-Ninganaika Krishnanaika D1-Dhariyasinga D3-Keeryanaik Hiribai
Lachyanaika @ Alive Wife (dead) Alive Alive Dead
Lakshmananaika (dead) Husband Husband Tulasibai (dead)
1.Shankranaika D8 Poryanaika Dasyanaika Shankaranaika D4
2. Ramanaika D9 Kotreshnaika D5
3.Gangeebai P1 Veerupakshanaika D6
4. Murthinaika D10 Lakshmibai 5.Gowribai D11 Rajubai
6.Kamalibai D12 Pampabai
7.Dawajanaika P2 Chandranaika D7 Vanithabai

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NC: 2023:KHC:44300 RSA No. 1068 of 2018

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Plaintiff Nos.1 and 2 have instituted the present partition suit, claiming to be the granddaughters of one Walianaik. Plaintiffs contended that one Keeryanaik, is the propositor and he had two sons by name, Walianaik and Takranaik. The plaintiffs have claimed that suit schedule properties are joint family ancestral properties and the present plaintiffs and defendant No.8 to 12 are the legal heirs representing the branch of Walianaik. Plaintiffs have further contended that defendant Nos.2 to 7 are the legal heirs of Takranaik and they represent the said branch. It is a specific case of the plaintiffs that they and defendant Nos.1 to 12 constitute an undivided joint Hindu family and they are in joint possession and enjoyment over the suit schedule properties. The present suit is filed alleging that defendant No.1, who is claiming to be the adopted son of grandfather Walianaik, is disputing plaintiffs' legitimate share in the suit schedule properties. It is also alleged that defendant No.1 in collusion with defendant Nos.2 to 7, has created and concocted a document styled as a partition deed, which is of the year 1967 and has also created an

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15 - NC: 2023:KHC:44300 RSA No. 1068 of 2018

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adoption deed to falsely lay a claim over the half share of Walianaik, hence the present suit for partition.

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Defendant No.1, on receipt of summons, tendered appearance, filed written statement and stoutly denied the entire averments made in the plaint. Defendant No.1 sought for dismissal of the suit as barred by limitation. Defendant No.1 contended that plaintiffs and defendant Nos.8 to 12 are quite aware of the registered partition deed dated 30.05.1967. Defendant No.1 while countering the claim of plaintiffs, has specifically contended that plaintiff No.1 is the wife of defendant No.3, who is a party to the said registered partition deed and therefore, contended that pursuant to the registered partition deed, there is severance in the family and plaintiffs mother never questioned this registered partition deed effected in 1967.

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Plaintiffs and defendant No.1 to substantiate

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their respective claims have let in oral and documentary evidence. Since defendant No.1's status as an adopted son

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16 - NC: 2023:KHC:44300 RSA No. 1068 of 2018

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was questioned and disputed by the plaintiffs, defendant No.1 has let in evidence to substantiate that he is the adopted son of Walianaik and as a coparcener, he has represented the branch of Walianaik in the 1967 partition.

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The Trial Court, having examined the pleadings of the parties and oral and documentary evidence let in and also having taken note of several admissions elicited in cross-examination of P.W.1, answered issue Nos.1 to 3 in the negative and issue No.7 in the affirmative. While answering issue No.3 in the negative, the Trial Court held that plaintiffs have failed to substantiate that the partition deed dated 30.05.1967 is a created and concocted document. While answering issue No.7 in the affirmative, the Trial Court held that defendant No.1 has succeeded in establishing that there is severance in the family postpartition by way of a registered partition deed effected in 1967. While answering issue No.8 in the negative, the Trial Court also held that defendant Nos.7, 8, 10 and 12 have failed to prove that the partition deed dated

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30.05.1967 is not binding on them. The Trial Court while answering issue No.1 to 3 and 8 in the negative, has not only upheld the partition effected in 1967 while examining severance in the family but has also taken cognizance of the fact that defendant No.1 has succeeded in establishing his status as an adopted son of Walianaik. Consequently, suit is dismissed and while dismissing the suit, the Trial

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Court answered issue No.11 in the affirmative and defendant Nos.13, 14 and 16 are held to be bonafide purchasers.

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The plaintiffs, feeling aggrieved by the judgment and decree of the Trial Court, preferred an appeal before the appellate Court. The Appellate Court, as a final fact-finding authority, has re-assessed the entire evidence on record independently. While examining the status of defendant No.1 as the adopted son of Walianaik, the Appellate Court has independently examined the evidentiary value of Exs.D.5 and 8, coupled with the registered partition deed produced at Ex.D.4. While taking

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note of the original partition deed, which is placed on record by defendant No.1, which is marked as Ex.D.4, the Appellate Court has concurred with the findings recorded on the status of defendant No.1. Referring to recitals in the registered partition deed, the Appellate Court was also of the view that defendant No.1 is party to the said registered partition deed and is referred to as an adopted son of Walianaik. While taking cognizance of Exs.D.5 and 8, which are school record and school transfer certificate, respectively, as well as Ex.D.9, which is voter list, the Appellate Court was also of the view that defendant No.1 has succeeded in substantiating that he was taken in adoption by Walianaik before codification of Hindu Law, which is in 1949.

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While examining as to whether there is severance based on registered partition deed, the Appellate Court has not only referred to several admissions elicited in cross-examination of P.W.1 but has also culled out those relevant admissions at paragraph

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No.25. Referring to these significant details, the Appellate

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Court has also come to the conclusion that defendant No.1 has succeeded in establishing that there was severance in the family way back in 1967. Having held that defendant No.1 is the adopted son and further having held that there is severance in the family pursuant to a registered partition deed effected in the family, the appeal is dismissed. These concurrent findings are under challenge.

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Heard learned counsel appearing for the plaintiffs and learned counsel appearing for defendant No.1. I have also given my anxious consideration to the judgment cited by the learned counsel appearing for the plaintiffs.

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Though learned counsel appearing for the plaintiffs, placing reliance on the judgment rendered by the Hon'ble Apex Court in the case of Vineeta Sharma

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vs. Rakesh Sharma and others reported in (2020) 9

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SCC 1 , would contend that daughter, in view of

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amendment to Section 6, is conferred the status of a coparcener and therefore, she is entitled for share, I am not inclined to exceed the said argument. The right of the daughter in a coparcenery property, though, is given a quietus by the judgment rendered by the Hon'ble Apex Court in the case of Vineeta Sharma ; the said principles are not applicable to the present case on hand. If there is

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severance in the family way back in 1967 under a registered partition deed which is evident from Ex.D.4, then the same is clearly saved under proviso to Section 6(1) of the Hindu Succession Act, 1956 (for short, 'Act').

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The Hon'ble Apex Court in the case of Vineeta Sharma at paragraph No.67, taking note of the proviso to Section 6(1) has clearly held that proviso to Section 6(1) and Section 6(5) clearly saves any partition effected before 2012-2004. Referring to the explanation of Section 6(5), the Apex Court held that the said Section 6(5) clearly recognizes partition effected by the execution of a deed of partition duly registered under the Registration Act. In the light of law laid down by the Apex Court in the case of

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Vineeta Sharma and having regard to proviso to Section 6 of the Act, the granddaughter of Walianaik could not have maintained the partition suit in 2006.

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Both the Courts, referring to the clinching rebuttal evidence let in by defendant No.1, have concurrently held that defendant No.1 has succeeded to the branch of Walianaik as an adopted son and he has acquired a half share pursuant to a registered partition deed effected between the branches of Walianaik and Takranaik. The severance in terms of the registered partition deed is admitted in unequivocal terms in the cross-examination of P.W.1. Both the Courts, referring to the registered partition deed, have concurrently held that defendant No.1 has successfully proved the severance in the family. Both the Courts, while answering issue Nos.1 to 3 in the negative, have concurrently held that plaintiffs have failed to prove the alleged partition deed is a concocted document. In the light of discussion made supra, no substantial question of law would arise for

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consideration. The regular second appeal is devoid of

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merits and accordingly stands dismissed .

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In view of dismissal of second appeal, all pending

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applications, if any, do not survive for consideration and

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stand disposed of.

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Sd/JUDGE

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HDK List No.: 1 Sl No.: 1 CT: BHK

Smt. Gangi Bai v. Dhariya Naik @ Dhariyasingh

Case brief

What is this about?

What did the court decide?

Smt. Gangi Bai v. Dhariya Naik @ Dhariyasingh

Case brief

What is this about?

What did the court decide?

What the court decided

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