Partly allowed

N B Erappa v. N B Basavalingappa

Karnataka HC12 Jul 2023RSA/1291/2013

Case brief

AI extract

What is this about?

This second appeal examines whether the first appellate court erred in ignoring cross-objections and depriving the appellant of a share in joint family properties. The High Court partially allowed the appeal.

What did the court decide?

Appeal partly allowed; first appellate court judgment modified; respondent awarded 1/4th share in item No. 7 B schedule; matter remanded to first appellate court to decide cross-objections.

N B Erappa Vs N B Basavalingappa — Partition | Karnataka HC (2023)

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NC: 2023:KHC:24413 RSA No. 1291 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR REGULAR SECOND APPEAL NO. 1291 OF 2013 (PAR)

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BETWEEN:

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N.B. ERAPPA S/O LATE. N.N. BASAPPA AGED ABOUT 69 YEARS R/O No.249/1, 398 OPPOSITE MUNICIPAL NURSARY SCHOOL S.P. ROAD, KUSHALNAGAR EXTENSION SAKLESHPURA TOWN HASSAN DISTRICT - 573 134.

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…APPELLANT (BY SRI. K. R. LINGARAJU, ADVOCATE AND SMT. USHA LINGARAJU, ADVOCATE)

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AND:

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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N.B. BASAVALINGAPPA S/O LATE. N.N. BASAPPA AGED ABOUT 61 YEARS R/O KADAVINABACHANAHALLI VILLAGE SHRAVANUR POST HALLY MYSORE HOBLI HOLENARASIPURA TALUK HASSAN DISTRICT - 573 211.

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2. MEENAKSHI

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W/O CHANDRAPPA AGED ABOUT 58 YEARS D/O N.N. BASAPPA R/O BASAVANAHALLI VILLAGE ALDANAHALLI POST VIA MALLIPATNA

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NC: 2023:KHC:24413 RSA No. 1291 of 2013

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ARKALGUD TALUK

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HASSAN DISTRICT - 573 102.

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A.S. YUVARAJA (GURURAJA) S/O LATE. PARVATHAMMA AGED ABOUT 32 YEARS R/O ANKANAYAKANAHALLI VILLAGE AND POST ARKALGUD TALUK HASSAN DISTRICT - 573 102.

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A.S. CHANDRU S/O LATE. PARVATHAMMA AGED ABOUT 29 YEARS R/O ANKANAYAKANAHALLI VILLAGE AND POST ARKALGUD TALUK HASSAN DISTRICT - 573 102.

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SMT. PUSHPAVATHI W/O N.B. BASAVALINGAPPA MAJOR, R/O KADAVINABACHANALLY HOBLI SHRAVANUR POST HALLY MYSORE HOBLI HOLENARASIPURA TALUK HASSAN DISTRICT - 573 211.

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…RESPONDENTS

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(BY SRI. HARSHAVARDHAN B. SHARMA, ADVOCATE FOR R1 AND R3 TO R5; R2-SERVED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 27.4.2013 PASSED IN R.A.No.53/2012 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-II, HASSAN (CC CHARGE, H.N.PURA), ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 3.3.2012 PASSED IN O.S.No.108/2005 ON THE FILE OF SENIOR CIVIL JUDGE, HOLENARASIPURA AND ETC.,

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

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JUDGMENT

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This appeal is filed by the appellant/plaintiff praying to set aside the judgment and decree dated 27.04.2013 passed by the Fast Track Court, Holenarasipura in R.A. No.53/2012 and praying to decree the suit of the plaintiff insofar as item Nos.4 and 5 of plaint of 'B' schedule properties as prayed in the cross-objection filed by the plaintiff in the appeal filed by defendant Nos.1 to 4 under Order XLI Rule 22 of CPC.

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The appellant is the plaintiff and respondent Nos.1

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to 5 are defendant Nos.1 to 4 and defendant No.5(B) in O.S.No.108/2012.

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The parties will be referred to by their ranking as before the Trial Court.

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The plaintiff has filed the suit for the relief of partition of his half share in 'B' schedule properties and for mesne profits.

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It is the case of the plaintiff before the Trial Court that one N.N.Basappa and his wife Basamma had two sons

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and two daughters namely, Erappa (plaintiff), Basavalingappa (defendant No.1), Meenakshi (defendant No.2) and Parvathamma. The said Parvathamma died leaving behind her two sons, who are defendant Nos.3 and 4. Defendant No.5 is the mother-in-law of defendant No.1. The plaintiff and defendants are Hindus, governed by Mithakshara Law. The propositus of Basappa, got 11 items of 'A' schedule properties under the partition between himself and his brothers, and the said properties are joint family properties of plaintiff and defendant Nos.1 to 4. After the death of Basappa the defendant No.1 was managing the affairs of the 'A' schedule properties and they were continued in joint possession and enjoyment of the joint family.

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The Government has acquired 84 cents in Sy.No.185/1 (item No.5 of schedule A); 3 acres in Sy.Nos.296/1 and 293 (item No.7 of schedule A); 25 cents in Sy.No.281/1 (Item No.11 of Schedule A) for the purpose of construction of Hemavathi Reservoir Project and awarded compensation for acquisition of the said lands.

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Defendant No.1 has received entire compensation amount. The Government has granted 4 acres in Sy.No.30 and Block No.1 (item No.7 of B Schedule property) in the name of defendant No.1 and granted 4 acres in Sy.No.27 and Block No.2 (Item No.6) in the favour of Mother-Basamma. The said lands are joint family properties of plaintiff and defendants. The defendant No.1 has purchased 4 acres in Sy.No.27 (item No.4 of B-Schedule property) in the name of his mother-in-law namely Parvathamma (defendant No.5) out of the earnings of the joint family. The defendant No.1 has purchased 8 acres land in Sy.No.30 out of the income derived from the joint family. An extent of 2.76 acre in Sy.No.420/9 and Sy.No.408 and the site property of Emmegudi Kuravu have been sold to some other persons.

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It is further stated that Sy.No.8/16, 8/17 and 358/1 (item Nos.1 to 3 of B Schedule properties) are retained in joint family. The joint family, out of sale proceeds of the properties so received, acquired other properties in the name of defendant No.1, which is described in the schedule.

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It is further stated that defendant No.1 setup his

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mother and got instituted the suit in O.S.No.30/1990 against the plaintiff and defendant No.1 for declaration and permanent injunction. In the said suit the plaintiff was defendant No.2 and he approached the defendant No.1, who has undertaken to take care of the suit and put the plaintiff in dark of the proceedings of the said suit. The said suit came to be decreed declaring that the Mother-Basamma is the absolute owner of property bearing Sy.No.27 measuring 4 acres (Item No.6 in Schedule B). The plaintiff has filed the suit in O.S.No.17/1995 on the file of Civil Judge, Holenarasipur seeking declaration that the judgment and decree passed in O.S.No.30/1990 is fraudulent and sought permanent injunction against defendant No.1 and his son. The defendant No.1 and his son in the said suit took up the defence that Basamma executed a Will bequeathing the said property i.e., item No.6 of 'B' schedule property in favour of Pradeep who is the son of defendant No.1. The said suit, after contesting, came to be dismissed and the issue regarding Will said to have been executed by late

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Smt.Basamma, has been answered against the defendant No.1 and his son holding that the Will is not genuine and valid. The plaintiff has filed R.A.No.40/1999 and defendant No.1 has filed cross-objections relating to findings on the Will, the said appeal and cross-objections were dismissed with the observation that the plaintiff can approach the Court with appropriate prayer to establish his extent of right over the property in question.

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It is further stated that defendant No.1, in collusion with Revenue Officials, stealthily got the name of his son entered in revenue records. It is further stated that defendant No.1 has purchased item Nos. 4 and 5 of 'B' schedule properties in the name of his mother-in-law - Parvathamma (defendant No.5) out of the joint family funds. With this, the plaintiff has prayed for granting his share in 'B' schedule properties.

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Defendant Nos.1 to 4 in their written statement admitted the relationship between the plaintiff and defendants but denied the plaint averments and they

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admitted that defendant No.1 has received the compensation amount granted by the Government. The plaintiff and defendant No.1 and their mother divided the properties and are cultivating their respective shares separately. The first defendant, on the basis of award passed in his favour got 4 acres of land in Sy.No.27, granted in his favour and 4 acres

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in favour of his mother. It is stated that the granted properties are self-acquired properties of defendant No.1 and his mother. It is stated that the plaintiff falsely contended that the Government has granted 8 Acres land in Sy.Nos.27 and 30 in favour of joint family. The land granted in favour

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of Basamma has been declared as her absolute property in O.S.No.30/1990 and O.S.No.17/1995. The claim of plaintiff over 4 acres of land, which is granted to his mother is already adjudicated and it has become final. The suit of the plaintiff is barred by resjudicata. The defendant No.1 has not purchased 4 acres of land in Sy.No.27 in the name of his mother-in-law. The said contention is barred by Bennami Transactions Act. There is no cause of action against defendant No.5, the land purchased by defendant No.1 is

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absolute property and the plaintiff is not entitled to any share of the self acquired property of defendant No.1. The 'B' schedule properties are acquired by the defendant No.1 out of his earnings, defendant No.5 is not a necessary party to the suit as she has purchased the property out of her money. Item Nos.3 and 8 of 'B' schedule properties are not available

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as there are Government lands.

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The defendant No.5(B) who is one of the legal representatives of defendant No.5, in her written statement denied all the averments of the plaint and it is contended that deceased Parvathamma i.e., defendant No.5 had 3 daughters namely Drakshayini, Mahadevamma and Pushpavathi. This defendant No.5 got divided her self-acquired properties to all daughters under partition dated 01.05.1997. The said defendant No.5 bequeathed 4 acres in Sy.No.30, block No.3 in favour of defendant No.5(B) under Will dated 26.04.1994 and 4 acres in Sy.No.27, Block No.1 is bequeathed to Prashanth under the Will dated 26.04.1994. Defendant No.5(B) and Prashanth are in possession and enjoyment of

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NC: 2023:KHC:24413 RSA No. 1291 of 2013

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the said properties and they are not the joint family properties of plaintiff and defendants Nos.1 to 4.

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Based on the above pleadings, the Trial Court has

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framed following issues and additional issues.

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ISSUES

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1. Whether plaintiff proves that he has got half share in the 'B' schedule property and he is entitled for separate possession of the same by metes and bounds?

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2. Whether plaintiff is entitled to seek rendering of the accounts of joint family property from the 1st defendant?

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3. Whether plaintiff is entitled for mesne profits?

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4. Whether plaintiff is entitled for the relief sought for?

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5. What decree or order?

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Additional Issues dated:4.6.11.

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1. Whether the defendant No.5(B) proves that Sy.No.30, Block No.3 measuring 4 acres of Kadavinabachahally and Sy.No.27, Block No.1 measuring 4 acres are self-acquired properties of Parvathamma?

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2. Whether the defendant No.5(B) further proves that Parvathamma executed the Will dated 26.4.1994 in favour of

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defendant No.5(B) by bequeathing 4 acres in Sy.No.30, Block No.3 and executed the Will dated 26.4.1994 in favour Prashantha S/o defendant No.5(B) by bequeathing 4 acres in Sy.No.27, Block No.1 of Kadavinabachahally?

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Additional Issues dated:23.7.11 .

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1. Whether the 1st defendant proves that the suit is barred by resjudicata and estopped from contending anything as against contended in the previous suits Nos.30/90 & 17/95?

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The plaintiff has examined as PW.1 and got

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marked as Exs.P.1 to 17. Defendant No.1 has been examined as DW.1 and examined one witness as DW.2 and defendant No.5(B) has been examined as DW.3 and got marked documents as Exs.D1 to D31.

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The Trial Court, after hearing the arguments and appreciating the evidence on record, has answered issue Nos.1 and 4 partly in the affirmative and issue Nos.2, 3 and additional issues Nos.1 and 2 dated 04.06.2011 in the affirmative and additional issue No.1 dated 23.07.2011 in the negative and by its judgment and decree dated 03.03.2012,

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partly decreed the suit holding that the plaintiff is entitled for 1/4^th share in item Nos.1, 2, 6 and 7 of the 'B' schedule properties by metes and bounds.

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The Trial Court has dismissed the suit of the plaintiff against defendant Nos.5(A) and (B) over items Nos.4 and 5 of 'B' schedule properties. Aggrieved by the said judgment and decree, the defendant Nos.1 to 4/appellants have filed appeal in R.A.No.53/2012 on the file of the Fast Track Court -II, Hassan (first Appellate Court).

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The first Appellate Court, after hearing arguments on both sides, has formulated the following points for consideration:

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POINTS

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1. Whether the trial Court has erred and failed to appreciate the oral and documentary evidence of both sides with case facts in accordance with law and the impugned judgment is liable to set aside.

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2. Whether there are any reasons for this Court to interfere with the judgment of the trial Court?

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3. What order?

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The first Appellate Court has answered point No.1

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in the affirmative and held that there are reasons to interfere with the judgment and decree of the Trial Court and allowed the appeal by setting aside the judgment and decree, dated 27.04.2013 passed by the trial Court and decreed the suit partly, declaring that the plaintiff is entitled for 1/4^th share only in item No.6 of 'B' Schedule property by metes and bounds.

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In the said first appeal, the respondent No.1/plaintiff has filed cross-objection against the findings and the dismissal of the suit in respect of item Nos.4 and 5 of 'B' schedule properties. The first Appellate Court has not considered the said cross-objection while passing the judgment dated 27.04.2013.

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Aggrieved by the said judgment and decree passed by the first appellate Court and also not considering the cross-objections, the plaintiff filed this second appeal.

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This second appeal came to be admitted to

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consider the following substantial question of law:

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"Whether the first appellate court was justified in passing the Judgment and decree dated 27.04.2013 in R.A.53/2012 without considering the cross objections filed by the first respondent/plaintiff and rendering a decision thereon, and as such the Judgment and decree passed by the first Appellate court is vitiated?"

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Heard arguments of learned counsel for the

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appellant/plaintiff and learned counsel for respondent Nos.1

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and 3 to 5.

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Learned counsel for appellant argued that crossobjections filed by respondent No. 1 in R.A. No. 53/2012 challenging the findings of the trial Court in respect of item Nos. 4 and 5 of B schedule properties and refusal to grant share in those properties has been challenged in the crossobjections. The first appellate Court has not given any findings on the cross-objections. Therefore, the matter requires to be remanded to the first appellate Court with a direction to decide the cross-objections filed by respondent

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No. 1 in R.A. No. 53/2012. He further argued that item No. 7 of schedule B property has been granted in the name of defendant No. 1 in lieu of acquisition of item Nos. 5, 7 and 11 of schedule A properties belonging to the joint family and therefore, the plaintiff is entitled to a share in item No. 7 of schedule B property. He further argued that Ex.P.8 is the grant certificate in respect of item No. 7 of B schedule property in the name of defendant No. 1 and in it there is a specific mention that it is granted in lieu of acquisition of property for the Hemavathi Reservoir project. Said grant certificate is dated 23.06.1978. There was no partition in the family and therefore, item No. 7 which is granted in the name of defendant No. 1 in lieu of acquisition of family property will become joint family property. When it is held that there is no partition in the family, the first appellate Court ought to have granted a share to the plaintiff in item No. 7 of B schedule property. He further argued that item Nos. 1 and 2 are also ancestral properties and the plaintiff is having share in those properties.

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Learned counsel for respondent would argue that plaintiff in O.S. No. 17/1995 has taken a contention that there was a partition in the family and therefore he is estopped from contending otherwise and seeking share in item Nos. 1, 2 and 7 of B schedule properties. He further argued that Ex.P.8 is the grant certificate and it is in the name of defendant No. 1 and therefore, it is his separate property.

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Considering the arguments put forth by learned counsel for appellant and learned counsel for respondents the following additional substantive question of law would arise for consideration:

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“Whether the first appellate Court is justified in refusing to grant share to the plaintiff in item No. 7 of B schedule property?”

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It was the contention of the plaintiff before the trial Court that item Nos. 4 and 5 are properties purchased out of the joint family funds by defendant No.1 in the name his mother-in-law – Smt.Parvathamma – defendant No.5.

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Said Smt.Parvathamma – defendant No.5 died during the pendency of the suit and her legal representatives were brought on record as defendant Nos. 5(a) and 5(b). Defendant No. 5(b) has contended that defendant No. 5 – Smt. Parvathamma had executed a Will (Ex.D.25) bequeathing item Nos. 4 and 5 of B schedule properties in favour of defendant No. 5(b) and her son. The trial Court considering the evidence on record has held that item Nos. 4 and 5 of schedule B properties are not joint family properties of plaintiff and defendant Nos. 1 to 4 and they are the exclusive properties of defendant No.5 and dismissed the suit of the plaintiff in respect of item Nos.4 and 5 of the schedule B properties.

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Respondent No.1 in R.A. No. 53/2012 has filed cross-objections on 17.07.2012 praying to set aside the findings of the trial Court on additional issue Nos.1 and 2 and dismissing his suit in respect of item Nos. 4 and 5 of suit schedule B properties. The first appellate Court did not consider and decide the said cross-objections. The first

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appellate Court ought to have decided the cross-objections filed by respondent No.1 in R.A. No. 53/2012. Therefore to the extent of deciding the cross-objections filed by respondent No. 1 in R.A. No. 53/2012 the matter requires to be remanded to the first appellate Court. Accordingly, the substantive question of law in answered.

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The relationship between the parties is not in dispute. Plaintiff and defendant No. 1 are the sons, defendant No. 2 and deceased Smt.Parvathamma were daughters of propositus Sri. Basappa and his wife Smt. Basamma. Defendant Nos. 3 and 4 are the children of deceased - Smt. Parvathamma who is the daughter of propositus Sri. Basappa and his wife Smt. Basamma. It is not in dispute that the properties in A schedule are properties of propositus Sri. Basappa who got the same as his share under partition between himself and his brothers. It is also not in dispute that item Nos. 5, 7 and 11 of schedule A properties have been acquired for Hemavathi Reservoir project. It is the contention of the plaintiff that item Nos. 1 and 2 of B

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schedule properties are joint family properties. The plaintiff has not produced the RTCs of item Nos. 1 and 2 of schedule B properties to establish that they are standing in the name of members of his family. When the plaintiff has failed to prove that item Nos. 1 and 2 of B schedule properties are standing in the name of any of the members of the family and when he has not produced any RTCs of those properties he cannot claim any share in those properties.

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Admittedly item No. 7 of B schedule properties has been granted in the name of defendant No. 1. Ex.P.8 is the grant certificate in respect of item No. 7 and it is in the name of defendant No. 1 and it is dated 23.06.1978. It is the contention of defendant No. 1 that the said land has been granted to him after partition between himself, plaintiff and his mother. Defendant No. 1 did not produce any material to establish the said partition which is alleged to have taken place during the year 1972. Defendant No.1 places reliance on the averments of plaint in O.S. No. 17/1995 contending that the plaintiff has admitted in the plaint that there was a

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partition. Said plaint is at Ex.D.14. Learned counsel for appellant – plaintiff would contend that even though he has taken a contention of partition in O.S. No. 17/1995, it is held to be not proved by the trial Court and confirmed by the first appellate Court in R.A. No. 40/1999 and the judgment of the appellate Court is at Ex.P.6. In the said suit the plaintiff had taken a contention that there was a partition in the year 1983-84. In paragraph Nos. 16 and 17 of the judgment in R.A. No. 40/1999 (Ex.P.6) there is a finding that the partition as contended has not been proved. Plaintiff who was one of the defendants in O.S. No. 30/1990 has not taken up the said contention of partition in his written statement. Plaint of O.S. No. 30/1990 is at Ex.D.11, issues is at Ex.D.12 and judgment is at Ex.D.10. Even the judgment of the first appellate Court passed in R.A. No. 40/1999 has been confirmed in RSA No. 2239/2005 by judgment dated 18.08.2006. When defendant No.1 was not able to establish the alleged partition, grant of item No. 7 of B schedule properties in his name in lieu of acquisition of family properties for construction of Hemavathi Reservoir project would enure to the benefit of the joint

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family and members of the joint family are entitled to a share in it. The first appellate Court has only placed reliance on the observations made in judgment passed in R.A. No. 40/1999 (Ex.P.6) and liberty has been granted to the plaintiff to establish his extent of right over item No. 6 of the B schedule properties. Considering the liberty granted to the plaintiff, the first appellate Court has considered that the plaintiff can claim share only in item No. 6 of the B schedule properties. Liberty granted to the plaintiff in judgment in R.A. No. 40/1999 cannot be restricted to item No. 6. Only item No. 6 of B schedule properties was subject mater in R.A. No. 40/1999. When parties have failed to prove the prior partition, the plaintiff is entitled to share in the family properties. Therefore, the finding of the first appellate Court that the plaintiff is entitled to share only in item No. 6 of B schedule properties is erroneous. The plaintiff has established that item No. 7 of B schedule properties is joint family property even though it is granted in the name of defendant No. 1 and he is entitled to a share in it.

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The trial Court and first appellate Court have held that item Nos. 3 and 8 of schedule B properties are Government lands and therefore, they are not belonging to the family of plaintiff and defendant Nos.1 to 4 and have observed that the plaintiff has failed to establish that item Nos. 1 and 2 of schedule B properties are family properties by producing documents pertaining to it, namely, RTCs. Therefore, he is not entitled to partition/share in item Nos. 1 and 2 of schedule B properties. In view of the above, the additional substantive question of law is answered accordingly.

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In the result, the following;

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O R D E R

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i. Appeal is partly allowed.

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ii. Judgment and decree passed by the first appellate Court in R.A. No. 53/2012 dated 27.04.2013 is modified holding that plaintiff and defendant Nos. 1 and 2 are entitled to 1/4^th share each and defendant Nos. 3 and 4

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together are entitled to 1/4^th share in item No. 7 of suit B schedule property also.

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iii. The first appellate Court is directed to consider and decide the cross-objections filed by respondent No. 1 in R.A. No. 53/2012 filed on 19.07.2012 in respect of item Nos. 4 and 5 of schedule B properties only.

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iv. Parties are directed to appear before the first appellate Court, without awaiting notice from the first appellate Court, on 28.08.2023.

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Registry is directed to send copy of this judgment along with the trial Court and first appellate Court records to the first appellate Court forthwith.

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Sd/JUDGE

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SMC,LRS

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List No.: 1 Sl No.: 17

N B Erappa v. N B Basavalingappa

Case brief

What is this about?

What did the court decide?

N B Erappa v. N B Basavalingappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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