Dismissed

Ganganna v. Doddasiddappa S/O Kalappa Dead by Lrs

Karnataka HC24 Mar 2023RSA/374/2011

Case brief

AI extract

What is this about?

In a second appeal regarding a partition suit, the High Court of Karnataka dismissed the appeal. The court held that reasonable inferences from evidence, including sale deeds and mutation records, established a prior partition of joint family property before the suit was filed.

What did the court decide?

The second appeal was dismissed; the judgment and decree of the first appellate court dismissing the partition suit were affirmed.

Ganganna Vs Doddasiddappa S/O Kalappa Dead by Lrs — Partition | Karnataka HC (2023)

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1 - RSA No. 374 of 2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR REGULAR SECOND APPEAL NO. 374 OF 2011 (PAR)

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BETWEEN:

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GANGANNA S/O CHIKKASIDDAPPA AGED ABOUT 42 YEARS

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SHANKARAPPA

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S/O CHIKKASIDDAPPA AGED ABOUT 39 YEARS BOTH ARE RESIDENTS OF BENCHE BUKKAPATAN HOBLI SIRA TALUK – 572 137.

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…APPELLANTS

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(BY SRI K HANUMANTHARAYAPPA, ADVOCATE)

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AND:

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Digitally signed by YASHODA KRISHNAPPA

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Location: HIGH COURT OF KARNATAKA

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DODDASIDDAPPA S/O KALAPPA, DEAD BY L.Rs.

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(a) BASANNA S/O DODDASIDDAPPA AGED ABOUT 56 YEARS.

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(b) SIDDALINGAPPA S/O DODDASIDDAPPA AGED ABOUT 54 YEARS.

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RSA No. 374 of 2011

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R/O BENCHE VILLAGE BUKKAPATANA HOBLI SIRA TALUK – 572 137.

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PUTTANNA S/O KALAPPA DEAD BY L.Rs.

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(a) CHIKKARANGAMMA W/O PUTTANNA AGED ABOUT 75 YEARS BENCHE VILLAGE BUKKAPATANA HOBLI SIRA TALUK – 572 137

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(b) P LAXMINARAYANA S/O PUTTANNA AGED ABOUT 55 YEARS NOW WORKING AT PRINCIPAL AT RANGANATHA 1^st GRADE COLLEGE, SIRA.

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(c) P SOMASHEKARA S/O PUTTANNA AGED ABOUT 45 YEARS ALL ARE RESIDENTS OF BENCHE VILLAGE BUKKAPATANA HOBLI SIRA TALUK – 572 137.

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BYRANNA S/O KALLAPPA AGED ABOUT 65 YEARS SINCE DECEASED BY HIS LRs.

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3(a) KALLAPPA AGED 50 YEARS

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3(b) SIDDAPPA AGED 45 YEARS.

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3 (c) SHIVANNA AGED 40 YEARS.

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RSA No. 374 of 2011

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3(d) CHAMARAJ AGED 35 YEARS.

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ALL ARE SONS OF LATE BYRANNA RESIDENT OF BENCHE BUKKAPATAN HOBLI, SIRA TALUK TUMKUR DISTRICT.

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…RESPONDENTS

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(BY SRI KUMARA & K VENUGOPAL, ADVOCATE FOR R2(a-c), SRI K.N NITESH, ADVOCATE FOR SRI K V NARASIMHAN, ADVOCATE FOR R3(a-d), R-1(a)-(c) – SERVED, UNREPRESENTED)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:16.11.2010 PASSED IN R.A.No.278/2007 (OLD No.5/2007) ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I, TUMKUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:30.3.2007 PASSED IN O.S.No.150/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN) SIRA.

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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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Plaintiff Nos.1 and 2 have filed this appeal praying to set-aside the judgment and decree dated 16.11.2010 passed by the Fast Track Court-I, Tumakuru in R.A.No.278/2007 and affirm the judgment and decree

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RSA No. 374 of 2011

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dated 30.03.2007, passed by the learned Civil Judge (Sr.Dn.), Sira in O.S.No.150/2005.

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Appellant Nos.1 and 2 were the plaintiffs and respondent Nos.1 to 3 were the defendants (now dead by legal representatives) in O.S.No.150/2005, on the file of the Civil Judge (Sr.Dn.), Sira.

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Plaintiff Nos.1 and 2 had filed the said suit seeking the relief of partition and separate possession of their 1/4^th share in the suit schedule properties. There are eight items of suit schedule properties and they are as under:

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“ SUIT SCHEDULE

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1. Land in Sy.No.1/5A measured 0-25 guntas, bounded by:

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East : Chikkajjanavara Kallappa, West : Road, North : Gramathana South : Kenchajji.

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2. Land in Sy.No.8/2 of Basavanahally, measured 2 acres 9 guntas bounded by:

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East : Siddarangappa, West : Doddaningappa,

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North : Purlingajja, South : Sanneerappa.

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3. Land in Sy.No.7/1 of Basavanahally, measured 3 acres 19 guntas, bounded by:

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East : Javarappa & Sy.No.8/2 West : Halla, North : Siddarangappa and Road, South : Mattada lingappa.

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4. Land in Sy.No.246, of Dodda agrahara measured 2 acres 12 guntas, bounded by:

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East : Halla, West : Sy.No.245/2, North : Karidyamanna & Lakshmanna, South : Ningappa, Karidyamajja.

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5. Land in Sy.No.245/2, of Doddaagrahara, measured 1 acre 22 guntas, bounded by:

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East : Sy.No.246, West : Durgappa, North : Motannanavara kariyanna, South : Ningappa.

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6. Land in Sy.No.23/1 measured 30 acres 31 guntas of Hosabijianbella, bounded by:

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East : Doddeerajjana Basanna West : Halegowda and sons, North : Land of Halebijjanabella Kenchaiah, South : Hanumanthajja's Kariyanna.”

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7. Land in Sy.No.5 of Chikkageerenahally, measured 11 acres 27 guntas, bounded by:

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East : Sy.No.4, West : Badagimallajja, North : Chikkarangappa, South : Ramaiah.

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8. Land in Sy.No.4 of chikkageeranahally, measured 16 acres 28 guntas, bounded by:

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East : Sannarangappa, West : Sy.No.5, North : Dyamajja, South : Sannajja.

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All the above said lands are situated within the area of Bukkapatna Hobli, Sira Taluk.”

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It is the case of the plaintiffs in the said suit that they are the sons of one Sri.Chikkasiddappa. The said Sri.Chikkasiddappa had three brothers namely, Sri.Doddasiddappa (defendant No.1), Sri.Puttanna (defendant No.2) and Sri.Byranna (defendant No.3) and they are all the children of Sri.Kallappa, son of Sri.Thoriyappa. The plaintiff Nos.1 and 2 are the sons of the deceased Sri.Chikkasiddappa.

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It is their further case that the plaintiffs and the defendants constituted a Hindu Undivided Joint Family and

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in view of the increase in the strength of members in the Joint Family, they used to live separately, but, continued to enjoy their undivided joint family properties. The suit schedule properties are the Hindu Undivided Joint Family Properties of the plaintiffs and the defendants. It is their further case that their ancestors Sri.Thoriyappa and his son Sri.Kallappa succeeded to the suit schedule properties. After the death of Sri.Kallappa, the plaintiffs’ father and the defendants succeeded to the suit schedule properties.

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The plaintiffs, after the death of their father, sought for effecting the partition of the suit schedule properties and the defendants dragged, effecting the partition, on one or the other ground.

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It is their further case that defendant No.3 gave the photocopy of the Palupatti on 01.12.1980, said to have been executed among the defendants and others and the plaintiffs or their father was not a party to the said Palupatti. Defendant No.3 is mentioned to have the entire extent of 30 acres of land in Sy.No.23, biggest of all the

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properties and he has also taken share in the other wet lands. They contended that defendant No.3 is the adopted

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son of his mother-in-law and he got her properties. They contended that the Palupatti dated 01.12.1980 is of no value in the eye of law. The plaintiffs’ claim their 1/4^th share in the suit schedule properties.

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Defendant No.3 filed his written statement, wherein,

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he has admitted the relationship and denied rest of the averments made in the plaint in toto. It is his case that during the life time of Sri.Kallappa, the ancestral properties were partitioned amongst Sri.Kallappa and his four sons under the Palupatti dated 30.04.1945. At that time, defendant Nos.2 and 3 were minors and as such, Sri.Kallappa represented them as their guardian. He denied having given the photo copy of the Palupatti dated 01.12.1980, prior to filing of the suit. He contended that Sy.No.23 was given to him for his marriage expenses and another land was given to defendant No.2 for his marriage expenses, apart from their regular share in the Palupatti

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which took place in the year 1945. He contended that the Joint Family Properties have been divided long back by metes and bounds and all of them are enjoying their respective shares.

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He contended that after the partition, the plaintiffs’ father purchased 4 acres 37½ guntas of land from one Sri.Guddadarangaiah in Sy.No.8 of Chikkagiriyappanapalya on 05.02.1947 and on the same day, he purchased the remaining land of 4 acres 37½ guntas in the same survey number from one Smt.Rangamma under a registered sale deed. Later, he has sold away the same in favour of one Sri.Sannarangappa under a registered sale deed dated 20.03.1980. He contended that after the division, defendant No.2 too, sold away a portion of his share in Sy.No.1/5 in favour of Sri.Sannarangappa on 07.09.1970 by exercising right over his share. He contended that in view of the earlier partition, the suit is not maintainable and it is barred by limitation.

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Defendant Nos.1 and 2 filed a common written

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statement admitting the averment made in the plaint contending that the suit schedule properties are the ancestral Joint Family Properties of the plaintiffs and the defendants and they are in joint possession and enjoyment of the same and prayed to decree the suit as prayed in the plaint.

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On the basis of the said pleadings, the Trial Court has framed the following issues:

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“1. Whether the plaintiffs prove that the suit schedule properties are the properties of the joint family consisting of themselves and the defendants?

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2. Whether the defendants prove the earlier partition as set out in the written statement?

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3. Whether the plaintiffs are entitled for partition and separate possession of their 1/4^th share in the suit schedule property?

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4. To what order or decree?”

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RSA No. 374 of 2011

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Plaintiff No.2 has been examined as PW1 and got

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marked Exs.P1 to P13 and three witnesses have been examined on behalf of the plaintiffs as defendant Nos.2 to 4. Defendant No.3 has been examined as DW1 and got marked Exs.D1 to D65.

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The Trial Court appreciating the evidence on record,

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has answered issue Nos.1 and 3 in the affirmative and issue No.2 in the negative and decreed the suit of the plaintiffs, awarding 1/4^th share each to the plaintiffs, legal representatives of defendant Nos.1 and 2 not only in the suit schedule properties, but also in the house properties by metes and bounds. The Trial Court has granted share in the house properties which are not the subject matter of the suit.

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Defendant No.3 challenged the said judgment and decree in R.A.No.278/2007. The First Appellate Court after hearing the arguments on both sides, has formulated the following points for determination:

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“1) Whether learned trial judge erred in holding that suit properties are joint family properties as on the date of the suit?

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2) Whether the learned trial Judge erred in holding that appellant- defendant No.3 failed to establish earlier partition?

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3) Whether interference in findings of the learned trial Judge is required?

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4) What order or decree?”

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The First Appellate Court answered point Nos.1 to 3 in the affirmative and allowed the appeal and set-aside the judgment and decree passed in O.S.No.150/2005 and dismissed the suit of the plaintiffs. The plaintiff Nos.1 and 2 have challenged the judgment and decree passed by the First Appellate Court in the second appeal.

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This appeal came to be admitted to consider the following substantial questions of law:

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“i) Whether the first appellate Court was right in holding that the third respondent proved prior partition, even though he failed to prove

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13 - RSA No. 374 of 2011

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the individual of shares of brothers, with survey numbers extent and boundaries?

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ii) Whether the first appellate Court was right in holding that an unregistered partition was admissible in evidence?”

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Heard the arguments of learned counsel for the appellants and learned counsel for the respondent No.3.

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Learned counsel for the appellants would contend that the Trial Court has rightly appreciated the evidence on record and has come to the conclusion that defendant No.3 has failed to establish the Palupatti dated 30.04.1945 (Ex.D62) and held that the suit schedule properties are the Joint Family Properties and has rightly awarded the share to the plaintiffs and the defendants.

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He further argued that the First Appellate Court erred even though holding that defendant No.3 failed to prove the prior partition, but has erroneously dismissed the suit of the plaintiffs. He contended that in Ex.D62 – Palupatti, there is no awarding of share to the individual brothers

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with survey number, extent and boundaries. He contends that the First Appellate Court has erred in holding that the unregistered partition deed is admissible in evidence. He contends that when defendant No.3 failed to prove the Palupatti dated 30.04.1945 (Ex.D62), the First Appellate Court ought to have held that the suit schedule properties are the Joint Family Properties and ought to have confirmed the judgment and decree passed by the Trial Court. He contends that the said partition deed -Ex.D62 is not acted upon and there is no division of properties by metes and bounds.

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Learned counsel for respondent No.3 – defendant No.3 would contend that the acts of the plaintiffs’ father Sri.Chikkasiddappa selling the portion of the suit schedule property under the sale deeds at Exs.D4 and D6 in the year 1980 and 1981 and the averments made in the said sale deeds that the property which is sold by them is allotted to his share, itself shows that there was earlier partition.

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RSA No. 374 of 2011

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He further argued that even defendant No.2 –

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Sri.Puttanna has executed a sale deed – Ex.D3 in favour of Sri.Sannarangappa in respect of Sy.No.1/5 on 07.09.1970, mentioning in it that the property sold is fallen to his share, itself shows that there was a partition among the family members prior to it.

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Even defendant No.1 and his two sons sold a portion of the property in Sy.No.1/5 under a sale deed (Ex.D5 dated 22.02.1980) in favour of Sri.Siddappa, S/o Sri.Jogappa mentioning in it that the property sold is fallen to his share, itself shows that there is a partition.

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The plaintiffs, after purchasing 4 acres 37 guntas under the sale deeds (Exs.D1 and D2) in Sy.No.8, both dated 05.02.1947 and non inclusion of that property in the suit itself shows that the plaintiffs’ father acquired the said property after the partition in the year 1945, claiming that it is his self acquired property.

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The plaintiffs got mutated their names to the said property bearing Sy.No.8 after the death of their father and the mutation register extract is at Ex.D13. Defendant No.3 purchased Sy.No.10/5, measuring 7 acres 23 guntas and it is not the subject matter of the suit and the plaintiffs have not included the said property in the suit schedule property, itself shows that defendant No.2 purchased the said property after the partition in the Joint Family.

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He contends that three brothers have given consent for mutating the name of defendant No.3 – Sri.Byranna to the property bearing Sy.No.23, measuring 30 acres 31 guntas (item No.6) and the same is mentioned in Ex.D16 which took place in the year 1980-81. The R.T.C of the said Sy.No.23 is standing in the name of defendant No.3 – Sri.Byranna (Exs.P17 and 18).

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He contends that PW1 in his cross examination has admitted that Sri.Kallappa has gifted Sy.No.246, measuring 2 acres 12 guntas (item No.4) in favour of his

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daughter Smt.Byramma. But, the said Smt.Byramma was not arrayed as a party to the suit. PW1 has also admitted that his father purchased Sy.No.8, measuring 9 acres 35 guntas and they are in exclusive possession of the said property.

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PW1 further admitted that there is a property bearing Sy.No.1/1, measuring 8 acres and it is not included in suit schedule properties. PW1 has also admitted that he too purchased Sy.No.10, measuring 7 acres 33 guntas in the year 1983-84 and contends that it is his self acquired property.

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He further argued that PW2 is the son of one Sri.Dyamegowda, who is the attesting witness to Ex.D62, but he deposed that he could not identify the signature of his father, itself shows that the same cannot be relied upon. He contends that PW3 is having animosity with the son of defendant No.3. He contends that DW1 in his evidence affidavit has explained as to what are the properties divided among Sri.Kallappa and his four sons in

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the Palupatti which has taken place on 30.04.1945 (Ex.D62) and there is no cross examination on that aspect.

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Some of the properties are mutated in the name of the defendants (Exs.D7 and D8) and the said mutation orders have not been challenged by the plaintiffs.

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PW1 has admitted that Sri.Kallappa had four daughters and they have not been added as the defendants and they are the necessary parties to the suit.

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The interlocutory application filed by defendant No.3 seeking amended of the written statement taking plea of non-joinder of daughters as parties, has erroneously dismissed by the Trial Court. He supports the reasoning assigned by the First Appellate Court. He contends that the Trial Court erred in appreciating the evidence on record in the right perspective and erred in decreeing the suit, even though the daughters were not added to the suit and even though there was prior partition among the

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members of the joint family, which took place as per Ex.D62 in the year 1945.

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The relationship between the parties is not in dispute. The plaintiffs’ father Sri.Chikkasiddappa and defendant Nos.1 to 3 are the sons of Sri.Kallappa, who is the son of Sri.Thoriyappa. It is also not in dispute that the suit schedule properties are the Joint Family Properties of Sri.Kallappa and his four sons. It is the plea of defendant No.3 that there was a partition between Sri.Kallappa and his four children on 30.04.1945 as per Ex.D62. Defendant No.3 contended that as there was a partition among the members of the joint family of the plaintiffs and the defendants, the suit for partition is not maintainable.

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It is not the contention of the plaintiffs that there is inequal division of the properties in the partition deed dated 30.04.1945 (Ex.D62). It is the case of the plaintiffs that there was no partition at all among the children of Sri.Kallappa. Defendant No.3 has taken a specific contention in his written statement that there was a

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partition among Sri.Kallappa and his four children as per the Palupatti dated 30.04.1945 (Ex.D62). Even after defendant No.3 has taken up the said contention in his written statement, the plaintiffs have not chosen to file any rejoinder to the said contention of defendant No.3.

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The Trial Court and the First Appellate Court have held that defendant No.3 has not proved the Palupatti dated 30.04.1945 (Ex.D62). Defendant Nos.2 and 3, both were minors as on the date of Ex.D62 and in that, they were represented by their father as their minor guardian. Therefore, one cannot expect defendant No.3 to prove the act of partition which took place during his minority. The said partition deed dated 30.04.1945 (Ex.D62) is nearly prior to 60 years of filing of the suit by the plaintiffs.

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In case of old transactions, when no contemporaneous documents are maintained and when most of the active participants in the transactions have passed away, though the burden still remains on the person who asserts that there was a partition, it is

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RSA No. 374 of 2011

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permissible to fill up gaps in the evidence more readily by reasonable inferences from the evidence on record, than in a case where the evidence is not obliterated or lost by passage of time, as held by the Hon’ble Apex Court in the case of Bhagwan Dayal V. Reoti Devi reported in AIR 1962 SC 287 .

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In the case on hand, the said partition has taken place 60 years prior to filing of the suit. None of the attesting witnesses are alive. The son of one of the attesting witness who has been examined as PW2, deposed that he could not identify the signature of his father. Therefore, under these circumstances, reasonable inference from the evidence on record has to be taken into consideration as held by the Hon’ble Apex Court in the case referred supra .

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The father of the plaintiffs’, namely Sri.Chikkasiddappa did not file any suit for partition during his life time. The said Sri.Chikkasiddappa sold 2-¾ guntas in Sy.No.1/5 under the sale deed (Ex.D4) dated

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20.03.1980 in favour of Sri.Siddappa, son of Sri.Jogappa. In the recitals of the said sale deed, it is mentioned that the property sold is his share allotted to him.

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In another sale deed – Ex.D6 dated 11.12.1981,

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Sri.Chikkasiddappa sold 34 x 34 yards in Sy.No.1/1 to Smt.Chandrakanthamma, wherein in the recitals, it is mentioned that it is the property allotted to his share.

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Even defendant No.2 sold 23 x 13 yards in Sy.No.1/5

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by sale deed (Ex.D3) dated 07.09.1970 in favour of

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Sri.Sannarangappa, wherein in the recital, it is stated that the said property was allotted to his share.

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Even defendant No.1 and his two sons executed a

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sale deed - Ex.D5 dated 22.02.1980 in favour of Sri.Siddaiah, son of Sri.Jogaiah in respect of the property bearing Sy.No.1/5, measuring 50 x 18 yards and in the said sale deed also, it is mentioned that the property sold is allotted to their share.

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RSA No. 374 of 2011

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The said recitals made in Exs.D3 to D6, itself shows that there was division of the properties and allotment of shares to plaintiffs’ father and defendant Nos.1 and 2. As per Ex.D6 – Palupatti, measuring 30 acres 31 guntas is allotted to defendant No.3. The three brothers of defendant No.3 have given their consent for mutating the name of defendant No.3 to the said property bearing Sy.No.23, measuring 30 acres 31 guntas (item No.6) and the same is mentioned in mutation extract Ex.D16 in the year 1980-81. Even the name of defendant No.3 came to be mentioned in R.T.C of Sy.No.23/1, measuring 30 acres 31 guntas which are at Exs.D17 and 18 and it is for the year 1980-81.

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The parties have not challenged the said mutation, whereunder, the names of defendant Nos.3 and others have been mutated to the suit schedule properties. The properties purchased by the plaintiffs’ father Sri.Chikkasiddappa under the sale deeds Exs.D1 and D2 in Sy.No.8 on 05.02.1947 have not been included as the suit

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schedule properties. There is no mention regarding the same in plaint averments. Even the property purchased in the name of defendant No.2 ie., Sy.No.10/5, measuring 7 acres 23 guntas is also not included as the suit schedule property and it is stated by PW1 in his evidence that it is the self acquired property of defendant No.2. All these evidences goes to establish the reasonable inferences that there was a partition of the Joint Family Properties.

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PW1 admitted in his cross examination that item No.4 of the suit schedule property has been gifted by Sri.Kallappa to his daughter Smt.Byramma. Even though the said property is one of the suit schedule properties, the said Smt.Byramma was not made as a party to the suit. Even, PW1 has admitted that Sy.No.1/1, measuring 8 acres is the Joint Family Property, but the same is not included as one of the suit schedule properties.

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PW1 has admitted that Sri.Kallappa has four daughters and four sons, but the said four daughters have not been made as parties in the suit for partition. Even

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though defendant No.3 has not taken up the said contention in his written statement, but the Trial Court ought to have considered the said aspect, when there is an admission on the part of PW1 that there are four daughters of Sri.Kallappa and they are not made as parties to the suit.

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Defendant No.3 who has been examined as DW1, has stated in his affidavit evidence as to what are the properties which are included in Ex.D62, by giving reference to their survey number, extent etc., but there is no cross examination by the plaintiffs with regard to the same. The very said aspect goes to show that the suit schedule properties are the subject matter of partition which took place in the year 1945 as per Ex.D62.

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The Trial Court has not considered all these aspects. The First Appellate Court considering all these aspects, has rightly held that the suit schedule properties are not the Joint Family Properties and allowed the appeal and dismissed the suit of the plaintiffs.

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RSA No. 374 of 2011

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46. In view of the above, both the substantial questions

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of law are answered accordingly.

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47. In the result, the appeal is dismissed .

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Sd/JUDGE

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GH List No.: 1 Sl No.: 12

Ganganna v. Doddasiddappa S/O Kalappa Dead by Lrs

Case brief

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Ganganna v. Doddasiddappa S/O Kalappa Dead by Lrs

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