Partly allowed

Smt.Savakka v. Shri.Vitthal

Karnataka HC10 Sept 2024RFA/100073/2016

Case brief

AI extract

What is this about?

A regular first appeal against dismissal of a suit for partition of ancestral family properties. The court found a certified 1969 partition among Kallappa and his two sons bound the plaintiff, but held property retained by Kallappa devolved on his children under Section 8 of the Hindu Succession Act, granting her a share in Survey No.47 only.

What did the court decide?

Plaintiff and defendant No.13 each granted 1/4th share in Survey No.47 (item No.7 of schedule-B); preliminary decree ordered.

Smt.Savakka Vs Shri.Vitthal — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:13010-DB RFA No. 100073 of 2016

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 10^TH DAY OF SEPTEMBER, 2024

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PRESENT

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THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND

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THE HON'BLE MR. JUSTICE C M JOSHI REGULAR FIRST APPEAL NO. 100073 OF 2016 (DEC)

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BETWEEN:

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SMT. SAVAKKA W/O. KAREPPA CHANDARAGI SINCE DECEASED BY LRS

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1A) KAREPPA KALLAPPA CHANDARAGI AGE: 80 YEARS, OCC: AGRICULTURE,

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1B) SHIVAPPA KAREPPA CHANDARAGI AGE: 45 YEARS, OCC: AGRICULTURE,

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1C) MAYYAVVA KAREPPA CHANDARAGI AGE: 40 YEARS, OCC: HOSUEHOLD,

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Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA

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1D) SADANAND KAREPPA CHANDARAGI AGE: 37 YEARS, OCC: AGRICULTURE,

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1E) LAXMI KAREPPA CHANDARAGI AGE: 35 YEARS, OCC: HOUSEHOLD WORK,

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1F) BASAPPA KAREPPA CHANDARAGI AGE: 30 YEARS, OCC: AGRICULTURE, ALL ARE R/O. MUGALIHAL, TAL. SAUNDATTI, DIST. BELAGAVI 591106.

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…APPELLANTS

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(BY SRI. VITTHAL S. TELI, ADVOCATE)

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NC: 2024:KHC-D:13010-DB RFA No. 100073 of 2016

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AND:

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SHRI. VITTHAL S/O. BASAPPA TORGAL, AGE: ABOUT 45 YEARS, OCC: AGRICULTURE, R/O: MUGALIHAL, TAL: SAUNDATTI, DIST: BELAGAVI-591106.

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MALLAPPA S/O. BASAPPA TORGAL, AGE: ABOUT 43 YEARS, OCC: AGRICULTURE, R/O: MUGALIHAL, TAL: SAUNDATTI, DIST: BELAGAVI-591106.

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REVAPPA S/O. BASAPPA TORGAL, AGE: ABOUT 40 YEARS, OCC: AGRICULTURE, R/O: MUGALIHAL, TAL: SAUNDATTI, DIST: BELAGAVI-591106.

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CHIDANAND S/O. BASAPPA TORGAL, AGE: ABOUT 38 YEARS, OCC: AGRICULTURE, R/O: MUGALIHAL, TAL: SAUNDATTI, DIST: BELAGAVI-591106.

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SMT. KENCHAWWA W/O. SHANMUKH MALAKANNAVAR, AGE: ABOUT 36 YEARS, OCC: HOUSEWIFE, R/O: KADABI, TAL: SAUNDATTI, DIST: BELAGAVI-591129.

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SMT. LAKSHMAVVA W/O. GURUNATH MALAKANNAVAR, AGE: ABOUT 34 YEARS, OCC: HOUSEWIFE, R/O: KADABI, TAL: SAUNDATTI, DIST: BELAGAVI-591129.

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SMT. SAKREVVA W/O. LAXMANNA MAVINAGIDAD, AGE: ABOUT 32 YEARS, OCC: HOUSEWIFE, R/O: KALLIGUDDI, TAL: GOKAK, DIST: BELAGAVI-591227.

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SMT. SHARAVVA W/O. ADAVEPPA SINGADI, AGE: ABOUT 33 YEARS,

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OCC: HOUSEWIFE, R/O: MAMADAPUR, TAL: GOKAK, DIST: BELAGAVI-591233.

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SMT. KASTURI W/O. ARJUN KABADHAGOL, AGE: ABOUT 31 YEARS, OCC: HOUSEWIFE, R/O: NINGAPUR, TAL: GOKAK, DIST: BELAGAVI-591115.

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SMT. SHANTAVVA W/O. MUTTEOOA DALAWAI, AGE: ABOUT 29 YEARS, OCC: HOUSEWIFE, R/O: MUGALIHAL, TAL: SAUNDATTI, BELAGAVI-591106.

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LAKKAVVA W/O. BASAPPA TORGAL, AGE: ABOUT 60 YEARS, OCC: AGRICULTURE, R/O: MUGALIHAL, TAL: SAUNDATTI, BELAGAVI-591106.

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IRAPPA S/O. KALLAPPA TORGAL, AGE: 60 YEARS, OCC: AGRICULTURE, R/O: MUGALIHAL, TAL: SAUNDATTI, BELAGAVI-591106.

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SMT. PARAVVA S/O. SHIVARAYAPPA VANAJOL, AGE: ABOUT 55 YEARS, OCC: HOUSE WIFE, R/O: HOSUR, (POST-CHIPPALKATTI) TAL: RAMDURG, DIST: BELAGAVI-591123.

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SHRI. YALLAPPA SANNAKENCHAPPA DALAWAI, SINCE DECEASED BY LRS,

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14A) MUKKAWWA YALLAPPA DALAWAI AGE: 70 YEARS, OCC: HOUSEHOLD WORK,

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14B) MANJUL HANAMANTH DALAWAI AGE: 40 YEARS, OCC: HOUSEHOLD WORK,

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14C) PRAVEEN HANAMANTH DALAWAI AGE: 15 YEARS, OCC: AGRICULTURE,

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14D) PRAJWAL HANAMANTH DALAWAI AGE: 12 YEARS, OCC: AGRICULTURE, RESPONDENT NO. 14(C) AND 14(D) ARE MINORS R/BY RESPONDENT NO. 14(B) ALL ARE R/O: MUGALIHAL, TAL: SAUNDATTI, BELAGAVI-591106.

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SHRI. YALLAPPA S/O. BHIMIAPPA ANEPPAGOL, AGE: ABOUT 45 YEARS, OCC: AGRICULTURE, R/O: MUGALIHAL, TAL: SAUNDATTI, BELAGAVI-591106.

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…RESPONDENTS

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(BY SRI. SANTOSH B. MALLIGWAD, ADVOCATE FOR SRI. P.N. HATTI, ADVOCATE FOR R1, R2 AND R4 TO R8; SRI. PRASHANT S. HOSAMANI, ADVOCATE AS GUARDIAN FOR R14(C AND D) R14 APPEAL STANDS ABATED, R14A NOTICE HELD SUFFICIENT; R3, R9, R12, R13, R14(B) SERVED AND UNREPRESENTED)

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THIS RFA IS FILED UNDER SEC. 96 R/W. ORDER 41 RULE 1 OF CPC 1908, AGAINST THE JUDGMENT AND DECREE DATED:20.02.2016 PASSED IN O.S.NO.74/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, SAUNDATTI, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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5 - NC: 2024:KHC-D:13010-DB RFA No. 100073 of 2016

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE C M JOSHI)

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Being aggrieved by the judgment and decree in O.S.No.74/2013 dated 20.02.2016 by the learned Senior Civil Judge, Savadatti (for short “the Trial Court”)

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The parties are referred as per their ranking before the civil Court for the sake of convenience.

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The factual matrix as required for this appeal is

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as under:

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The plaintiff-Smt. Savakka, defendant No.12-Irappa, defendant No.13-Paravva and also the husband of defendant No.11 by name Basappa, are the children born to the propositus-Kallappa through his first wife-Paravva and second wife-Uddavva. Defendants 1 to 10 are the children of Basappa and defendant No.11. The plaintiff contends that the suit schedule properties are the ancestral properties of the plaintiff and defendants held by the propositusKallappa, who was the Karta of the family. After his death, his first son used to look after the family properties in his

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capacity as Karta. The plaintiff contends that there was no partition between the plaintiff, the said Basappa, Irappa and Paravva, who are the children of Kallappa. After the death of Basappa, it was defendant No.1-Vittal, who was looking after the affairs of the family as a Karta. Therefore, the plaintiff and the defendants were in joint possession and enjoyment of the suit schedule properties. The plaintiff has neither relinquished her share nor given up her rights in the suit schedule properties and only for the purposes of convenience, the family members are messing separately and cultivating different pieces of the properties. It is alleged by the plaintiff that in order to defeat the legitimate share of the plaintiff, the defendants have created certain documents in collusion with defendants 14 and 15 styled as ‘sale deeds’ behind her back and therefore, such documents are not binding on her. She also contended that there was no legal necessity for the family to sell any of the properties and on coming to know all the illegal acts of the defendants, the plaintiff asked her share but the same was denied by the

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defendants and as such she was constrained to file a suit for partition.

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The defendants 1 and 5 to 11 appeared through

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their counsel and the written statement of defendant No.1 was adopted by defendants 5 to 11. The other defendants either did not file any written statement or did not appear to contest the suit.

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The defendants 1 and 5 to 11 contended that

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Kallappa had two wives i.e. Paravva and Uddavva and Basappa is the son born to Paravva and after the death of Paravva, Kallappa married Uddavva and from her, the plaintiff and defendants 12 and 13 were born. It is contended that the defendants 1 and 12 have partitioned the family properties equally among themselves in the year 1969 during the lifetime of Kallappa and in the said partition, Survey Nos.47, 29, 51/1+2, 52, 32, 49 and 50/1+2 (which are item Nos.1, 4 to 9 properties in the schedule) were partitioned and revenue entries were effected to that effect.

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As per the said partition, the land measuring 15 acres 23 guntas in Survey No.47 was given to Kallappa for his maintenance during his lifetime. The remaining properties measuring 21 acres 1 gunta in Survey No.29, 13 acres 8 guntas in Survey No.51/1+2, 12 acres 17 guntas in Survey No.52 were given to the share of Basappa; and the land measuring 13 acres 17 guntas in Survey No.32, 11 acres 30 guntas in Survey No.49, 13 acres 8 guntas in Survey No.50/1+2 were given to the defendant No.12. Accordingly, M.E.No.1677 was certified recognizing the said partition. The defendant No.13 and the plaintiff had expressed their consent for certification of the said mutation entry and therefore, the said partition is within the knowledge of the plaintiff. Later, Basappa died on 21.12.2007 and after his demise, defendants 1 to 4, 6 and 7 got their names entered in the revenue records with the consent of the other defendants. It is stated that Kallappa had died on 21.12.1999 and since then the defendants are in enjoyment of the properties as per the partition of the year 1969 itself. Therefore, the plaintiff despite having such knowledge of the

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said partition deliberately has filed false suit after the death of Kallappa as well as Basappa and therefore, the suit deserves to be dismissed. Inter alia they have also contended that Basappa has executed registered sale deeds in favour of defendants 14 and 15 for his family necessities and as such, the property measuring 4 acres 25 guntas in Survey No.29 and Survey No.29/2 are not available for partition. So far as the house properties are concerned, it is stated that VPC No.721 is the self-acquired property of the defendant No.1 granted by the government in the name of his wife.

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The defendant No.12 filed her written statement

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supporting the case of the plaintiff. On the basis of the above pleadings, the Trial Court framed following issues:

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1. Whether the plaintiff proves that the suit schedule properties are the ancestral properties of herself and the defendants liable for partition?

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2. Whether the plaintiff proves that she is entitle for share in the suit schedule properties?

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3. Whether the defendant No.1, 5 to 11 prove the partition of the year 1969?

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4. Whether the defendant No.1 proves that suit of the plaintiff is bad for non-joinder of necessary parties?

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5. Whether the plaintiff is entitle for the relief of partition and separate possession as prayed for?

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6. What decree or order?

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The plaintiff was examined as PW1 and Ex.P1 to

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14 were marked on her behalf and defendant No.1 was examined as DW1 and Ex.D1 to 108 were marked. Though ample opportunities were given to the plaintiff, the defendant No.1 was not cross-examined. After hearing the arguments, the Trial Court answered issue Nos.1, 2 and 5 in the negative and issue Nos.3 and 4 in the affirmative and dismissed the suit. Being aggrieved by the said judgment, the plaintiff is before this Court in appeal.

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On issuance of notice by this Court, respondents 1, 2 and 4 to 8 have appeared through their counsel and the legal representatives of respondent No.14 were brought on record. The respondent No.14(c) and 14(d) being minors, a court guardian was appointed since respondent No.14 did not appear before the Court. The other respondents

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remained unrepresented despite service of notices. The Trial Court records have been secured and by consent of both the parties, the appeal is taken up for final disposal at the stage of admission itself.

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The learned counsel for the appellant, Sri. Vittal S. Teli would submit that the propositus-Kallappa was a holder of the suit schedule properties and during his lifetime, he could not have partitioned the suit schedule properties only among himself and his two sons. The plaintiff-Savakka and the defendant No.13-Paravva were the daughters of Kallappa and therefore, they also had a share in the suit schedule properties. He submits that the alleged partition of the year 1969 did not include the plaintiff and defendant No.13 and as such, it is not binding on the plaintiff. It is submitted that the Trial Court erred in holding that the appellant-plaintiff knew and had a full knowledge of the partition of the year 1969 and therefore, she is not entitled for the partition. He submits that the plaintiff was also entitled for equal share in the suit schedule properties and therefore, the reasoning assigned by the Trial Court in

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dismissing the suit of the plaintiff for relief of partition is not sustainable in law. His second prong of the argument would be that even if the Trial Court holds that there was a partition in the year 1969, the property allotted to the propositus-Kallappa in the form of Survey No.47 could not have been distributed only among the two sons i.e. Basappa and Irappa. When the property devolved upon the death of Kallappa, his individual property would have to devolve upon the plaintiff and the defendant No.13 also and therefore, on this count also the impugned judgment of the Trial Court is not sustainable in law.

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Per contra, the learned counsel Sri. P. N. Hattti, appearing for the respondents 1, 2, 4 to 8 and Sri. Prashant Hosamani, the learned counsel and Court guardian, appearing for the respondent No.14(c) and (d) would submit that much water has flown after the partition in the year 1969. He points out that a portion of the suit schedule property has been sold to defendants 14 and 15 and therefore, when the plaintiff had not at all objected for such alienation, and such alienations being within the knowledge

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of the plaintiff, she cannot take shelter under the ground that she had a share in the property and therefore, the alienations are not binding on her. Moreover, the admissions of the plaintiff in the cross-examination would clearly establish that she had the full knowledge of the partition that had taken place in the year 1969 and the separate enjoyment of the properties by Basappa and Irappa. Therefore, they contend that the dismissal of the suit is proper and correct.

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In view of the rival contentions urged before this

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Court, the points that arise for consideration are;

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i) Whether the trial Court is justified in holding that the plaintiff knew about the partition and separate enjoyment of the suit property among her father-Kallappa and his two sons Basappa and Irappa and as such, she could not have claimed the partition?

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ii) Whether the plaintiff is entitled for a partition in respect of the property allotted to the share of Kallappa by virtue of succession?

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14 -

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NC: 2024:KHC-D:13010-DB RFA No. 100073 of 2016

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A perusal of the cross-examination of the PW1 would clearly indicate that the plaintiff knew about the partition among Kallappa and his two sons Basappa and Irappa. She also admits that Basappa happens to be the son of the first wife of Kallappa and the plaintiff, Irappa and Paravva are born to the second wife of Kallappa. It is also pertinent to note that in the cross-examination, she categorically admits that Survey No.47 measuring 15 acres 24 guntas was kept by Kallappa for his share in the partition of 1969. Though she pleads ignorance about the Mutation Entry No.1677, her admission about retention of the property bearing Survey No.47 measuring 15 acres 24 guntas by Kallappa is clear. Further, in the crossexamination, she does not deny the fact that 13 acres 8 guntas in Survey No.51/1, 12 acres 17 guntas in Survey No.52, and 21 acres 1 gunta in Survey No.29 had fallen to the share of the Basappa. She says that it is not proper. Similarly, she does not deny that the remaining property had fallen to the share of her another brother Irappa. She also did not deny that they have been in enjoyment of the

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property accordingly. However, she says that at the time of the partition, her father was alive and that she was not consulted at the time of the partition. In the crossexamination she also admits that the defendant No.1 has sold portion of the property about 4-5 years back and Basappa has sold the property about 7 years back. She also admitted that VPC No.721 had been allotted to the wife of Vittal viz., Mahadevi and she is in possession of the same.

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This admission of the PW1 in the cross-

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examination clearly shows that in the year 1969 there was a partition among Kallappa and his two sons, who constituted a co-parcenary at that time.

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A perusal of the Ex.D90, which contains a Mutation Entry No.1677, would show that an amicable partition was effected among Kallappa, Basappa and Irappa, and Kallappa had retained Survey No.47 measuring 15 acres 23 guntas for himself and the remaining properties were divided among Basappa and Irappa. The mutation entry was certified on 02.07.1969.

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Thus, it is evident from the testimony of the PW1 and Ex.D90 that when there was division in the property in the year 1969, the plaintiff knew about the said partition and she did not deny that the parties are in enjoyment of the suit schedule properties as per the said partition. She says that it may be true that there was such partition. Thus, it is clear that there was a partition in the year 1969 and the plaintiff had full knowledge of such partition. Under these circumstances, when there was a partition among the members of coparcenery in the year 1969, the plaintiff could not raise a claim for which she had given her consent at that time and remained silent for all these years.

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In the light of the above factual circumstances, which are borne out of the evidence on record, the fact that the defendants have not led any evidence to prove the partition does not receive any significance. Even though DW1 has not offered himself for cross-examination, which also is disputed by the defendants saying that even though the DW1 was present and his cross-examination was taken as nil, it would recede to insignificance in view of the

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categorical admissions made by the PW1 in her crossexamination.

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The next point that arise for consideration would be whether Basappa and Irappa could have kept the plaintiff-Savakka and defendant No.13-Paravva out of the partition in respect of the property held by Kallappa. Evidently, when there was a partition among the members of the coparcenery in the year 1969, the said Kallappa also had retained Survey No. 47 and therefore, when Kallappa died in the year 1999, the property held by him would devolve in terms of Section 8 of the Hindu Succession Act. Therefore, in the said property held by Kallappa; the plaintiff, defendant No.12, 13 and Bassappa would get equal share. In that view of the matter, the plaintiff and the defendant No.13 would get 1/4^th share each in Survey No.47 which had fallen to the share of Kallappa.

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Further, it is also admitted fact that the plaintiff is married and she is living separately and therefore, there cannot be any claim in respect of property, which is a

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dwelling house. Hence, the points raised above are answered accordingly and the appeal deserves to be allowed in part. Hence, the following:

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ORDER

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i) The appeal is allowed in part.

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ii) The impugned judgment and decree dated 20.02.2016 passed in O.S.No.74/2013 by the learned Senior Civil Judge, Savadatti is hereby modified.

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iii) The plaintiff and defendant No.13 are entitled to 1/4^th share each in Survey No.47 i.e. item No.7 of suit schedule–B, which had fallen to the share of Kallappa; and insofar as the claim of the plaintiff in respect of remaining properties is rejected.

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iv) Draw preliminary decree accordingly.

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Sd/(B.M.SHYAM PRASAD) JUDGE

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Sd/(C M JOSHI) JUDGE

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YAN, LIST NO.: 1 SL NO.: 4

Smt.Savakka v. Shri.Vitthal

Case brief

What is this about?

What did the court decide?

Smt.Savakka v. Shri.Vitthal

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

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