Dismissed

Sri.Veerupakshayya S/O. Basayya Navalagimath v. Smt.Anusuya W/O. Shamubulingayya Bargimath

Karnataka HC27 Nov 2024RFA/100019/2020

Case brief

AI extract

What is this about?

Appeal in a regular first appeal challenging a partition decree. Bench held the appeal dismissed as appellant failed to produce partition deed or oral partition memorandum, relying only on mutation entry. Also barred plaintiffs from claiming partition of undisputed additional properties without Order II Rule 2 leave.

What did the court decide?

No additional properties can be included in the partition suit. Appeal dismissed with costs.

Sri.Veerupakshayya S/O. Basayya Navalagimath Vs Smt.Anusuya W/O… — Partition | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC-D:17427 RFA No. 100019 of 2020

¶2

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

¶3

DATED THIS THE 27^TH DAY OF NOVEMBER, 2024

¶4

BEFORE

¶5

THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

¶6

REGULAR FIRST APPEAL NO.100019 OF 2020 (PAR/POS-)

¶7

BETWEEN:

¶8

SRI. VEERUPAKSHAYYA S/O. BASAYYA NAVALAGIMATH, AGE : 56 YEARS, OCC: AGRICULTURE, R/AT : MALALI, TQ : MUDHOL-587313 DIST : BAGALKOT.

¶9

…APPELLANT

¶10

(BY SRI. KIRANKUMAR S. CHATTIMATH, ADVOCATE)

¶11

AND:

¶12

GIRIJA A BYAHATTI

¶13

Location: HIGH COURT OF KARNATAKA

¶14

SMT. ANUSUYA W/O. SHAMUBULINGAYYA BARGIMATH, AGE : 65 YEARS, OCC: HOUSE HOLD WORK, R/O : HULYAL, TQ : JAMKHANDI, DIST : BAGALKOT-587301.

¶15

SMT. SHAKUNTALA W/O. INDUDHARAYYA HIREMATH, AGE : 55 YEARS, OCC: HOUSE HOLD WORK, R/O : PUNE, TQ : PUNE-411001 DIST : PUNE (MAHARASHTRA).

¶16

SMT.SHASHIKALA W/O. SHAMBULINGAYYA BARAGIMATH,

¶17

2 - NC: 2024:KHC-D:17427 RFA No. 100019 of 2020

¶18

AGE : 33 YEARS, OCC: HOUSE HOLD WORK, R/O : HULYAL, TQ : JAMKHANDI, DIST : BAGALKOT-587301.

¶19

SMT. DANAMMA W/O. SHIVAPUJAYYA HIREMATH, AGE : 51 YEARS, OCC: HOUSE HOLD WORK, R/O : DHARWAD, TQ and DIST : DHARWAD-580001.

¶20

SMT. SHANTABAI W/O. BASAYYA NAVALAGIMATH, AGE : 71 YEARS, OCC: HOUSE HOLD WORK, R/O : MALALI, TQ : MUDHOL-587313 DIST : BAGALKOT.

¶21

…RESPONDENTS

¶22

(BY SRI. GIRISH A. YADAWAD, ADVOCATE FOR R1, R3 & R4; R2 & R5 ARE SERVED)

¶23

¶24

THIS RFA FILED UNDER SEC. 96 ORDER XLI RULE 1 OF CPC., 1908, PRAYING TO SET ASIDE THE DECREE DATED 02.12.2019 PASSED IN O.SNO.126/2018 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., MUDHOL BY ALLOWING THIS APPEAL WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.

¶25

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

¶26

3 - NC: 2024:KHC-D:17427 RFA No. 100019 of 2020

¶27

CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

¶28

ORAL JUDGMENT

¶29

This appeal is filed by defendant No.1 challenging the decree for partition. The relationship of the parties is not in dispute.

¶30

One Basayya was the propositus, his wife is Shantabai. The couple had four daughters and one son. Basayya, the propositus died on 14.10.2014, leaving behind his wife, four daughters and one son as class-I heirs.

¶31

The daughters filed a suit against son and the

¶32

mother. The suit is contested by defendant No.1, the son. Defendant No.2 remained ex-parte before the trial Court. Since the relationship is admitted and nature of the properties are also not in dispute, defendant No.1 who took a contention that the plaintiffs have no right over the properties because of the previous partition, is required to establish the previous partition.

¶33

4 - NC: 2024:KHC-D:17427 RFA No. 100019 of 2020

¶34

Both the parties led evidence in support of their

¶35

contentions. The trial Court disbelieved the contention relating to previous partition raised by defendant No.1 and decreed the suit.

¶36

Aggrieved by the aforementioned judgment in

¶37

decree, defendant No.1 is in appeal.

¶38

Learned counsel appearing for defendant No.1appellant would contend that previous partition is very much established and the said partition has taken place during the lifetime of Basayya. In the said partition, the propositus Basayya, his 4 daughters and wife of Basayya, who is defendant No.2, are given Rs.2,00,000/- in cash and 10 Tolas of gold in lieu of their share in the properties. It is also his contention that entire immovable properties belonging to the family, is allotted to the share of defendant No.1. He would also urge that based on the said partition, mutation is certified. Neither the plaintiffs nor the father of the plaintiffs, questioned the said mutation, which was certified in the year 2010 and without

¶39

5 - NC: 2024:KHC-D:17427 RFA No. 100019 of 2020

¶40

challenging this said mutation, the suit was filed in the year 2018, which is not maintainable. Thus, he would urge that appeal is to be allowed and the suit is to be dismissed accepting the previous partition.

¶41

Learned counsel appearing for the

¶42

plaintiffs/respondents would urge that the previous partition pleaded by the defendants is not established. He would contend that the alleged partition deed is not produced and only the mutation, which is certified in the year 2010, is produced and without document relating to previous partition placed before the Court and proved in accordance with law, merely because of an entry in the mutation register, it is not possible to hold that the previous partition has taken place.

¶43

It is also his contention that the alleged partition, which is said to have been taken place in the year 2010, is not registered and the partition is not established. He would also contend that xerox copy of the alleged partition agreement is produced and even if the

¶44

6 - NC: 2024:KHC-D:17427 RFA No. 100019 of 2020

¶45

said document is looked into for limited purpose, it indicates that alleged partition took place on the same day and it is not the memorandum of previous oral partition, in such event it requires registration. Without registration, the defendants cannot contend that there is a valid partition.

¶46

9. This Court has considered the contentions

¶47

raised at the bar and perused the records.

¶48

The following point arises for consideration:

¶49

“Whether defendant No.1/appellant establishes the previous partition pleaded in the written statement?”

¶50

The previous partition pleaded by defendant No.1 took place in the year 2010. In the year 2010, the father of plaintiffs and defendant No.1 was alive. It is urged by learned counsel appearing for the appellant that in the previous partition of 2010, Rs.2,00,000/- was given as a share to all the plaintiffs and the father of the

¶51

7 - NC: 2024:KHC-D:17427 RFA No. 100019 of 2020

¶52

plaintiffs and entire suit property was allotted to the share of defendant No.1.

¶53

The alleged partition deed is not produced. What is found in the record is the xerox copy of the partition deed. The said document is not tendered in evidence even in the form of a secondary evidence. In the examination-in-chief, defendant No.1 has raised a contention that the original document is with the plaintiffs and taking advantage of the said situation, they have filed a suit for partition.

¶54

If at all the original partition deed is with the plaintiffs, defendant No.1 was required to issue notice to the plaintiffs to produce the original deed to enable him to produce the secondary evidence. Such a course of action is not adopted and even in the plaint, there is no pleading that the original partition deed is with the plaintiffs. In the absence of the documentary evidence relating to partition, the trial Court refused to accept the plea of partition

¶55

8 - NC: 2024:KHC-D:17427 RFA No. 100019 of 2020

¶56

merely placing reliance on the mutation. This Court does not find any error in the side judgment.

¶57

Since defendant No.1 has come out with the

¶58

defence that there is a partition in the family and in the partition, plaintiffs together along with their father are given Rs.2,00,000/- and 10 Tolas of gold and all the suit schedule properties are allotted to the share of defendant No.1, the defendant is required to produce the partition deed or the memorandum of oral partition. Neither the partition deed is produced nor the memorandum of oral partition. In the absence of any such documentary evidence, the trial Court refused to accept plea of previous partition. This Court does not find any error in the judgment.

¶59

It is brought to the notice of this Court that there are two more properties bearing No.33/A located in Gram Panchayat, Malali jurisdiction and property bearing No.125 situated at Malali village standing in the name of Basayya. These properties are standing in the name of

¶60

9 - NC: 2024:KHC-D:17427 RFA No. 100019 of 2020

¶61

propositus Basayya. The plaintiffs have not chosen to include these properties in the suit for partition. Plaintiffs have not availed leave of the Court under Order II rule 2 Civil Procedure Code to file a suit for partition in respect of these properties. Hence, the plaintiffs are precluded from claiming partition in the aforementioned properties. The application of production of additional document is disposed of.

¶62

Consequently, the appeal dismissed.

¶63

Sd/(ANANT RAMANATH HEGDE) JUDGE

¶64

AM CT:ANB List No.: 1 Sl No.: 6

Sri.Veerupakshayya S/O. Basayya Navalagimath v. Smt.Anusuya W/O. Shamubulingayya Bargimath

Case brief

What is this about?

What did the court decide?

Sri.Veerupakshayya S/O. Basayya Navalagimath v. Smt.Anusuya W/O. Shamubulingayya Bargimath

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Chandrashekhar S/O Shankarappa Badami, Vs Somappa S/O. Ramappa Kuradgi

Smt. Leela Sagar Vs Smt. Manjula D/O Nagesh Raikar

Ameer S/O Ibrahim Shaikh Vs Smt. Manjula D/O Nagesh Raikar

K Thippanna @ Thippeswamy S/O.Late Surappa, Vs C Varalakshmi

Holeppa Ramappa Marennavar Vs Shanakka W/O Basappa Marennavar

Smt. Saraswati @ Saraswetevva W/O. Irappa Vs Smt. Tippavva W/O. Irappa