Disposed

Kumar. Mrutyunjayagouda v. Shanthanagouda

Karnataka HC20 Aug 2024RFA/100143/2017

Case brief

AI extract

What is this about?

In a partition appeal, the High Court of Karnataka recorded a settlement to resolve disputes over ancestral properties. The court directed the appellant to receive specific agricultural land and a future plot from a developed residential layout, along with a sum of money, while the respondent retained remaining properties subject to ensuring claims from other heirs.

What did the court decide?

Appellant declared entitled to specific agricultural land and a future plot subject to respondent paying Rs. 3,00,000 and indemnifying her against claims from other legal heirs.

Kumar. Mrutyunjayagouda Vs Shanthanagouda — Partition | Karnataka HC (2024)

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NC: 2024:KHC-D:11838-DB RFA No. 100143 of 2017

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 20^TH DAY OF AUGUST, 2024

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PRESENT

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

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AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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REGULAR FIRST APPEAL NO.100143 OF 2017 (DEC/PAR)

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BETWEEN:

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KUMAR. MRUTYUNJAYAGOUDA, S/O. BASANAGOUDA SHIDDANAGOUDAR, AGE: 12 YEARS, OCC: STUDENT, R/O: PALE, TQ: HUBBALLI, DIST: DHARWAD REPRESENTED BY HIS NEXT FRIEND SMT. SHANTAVVA, W/O. GURUPADAGOUDA SHIVANAGOUDAR, AGE: 68 YEARS, OCC: HOUSEHOLD AND AGRICULTURE, R/O: PALE, TQ: HUBBALLI, DIST: DHARWAD-581 207.

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APPELLANT

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(BY SRI. ARUN L. NEELOPANT, ADVOCATE)

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Digitally signed by VINAYAKA B V AND: Location: HIGH COURT OF KARNATAKA DHARWAD BENCHDHARWAD 1. SHANTHANAGOUDA, Date: 2024.09.2610:19:04 +0530 S/O. ULAVANAGOUDA SHIDDANAGOUDAR, SINCE DECEASED BY HIS LR’s.,

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1(A). NILAVVA W/O. FAKKIRAGOUDA CHIKKANAGOUDRA, SINCE DECEASED BY HER LR’s.,

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1(A)(i) SOMANAGOUDA, S/O. FAKKIRAGOUDA CHIKKANAGOUDRA, AGE: 44 YEARS, OCC: AGRICULTURE, R/O. ANCHIKATTI ONI, ADARAGUNCHI-580028, TQ: HUBBALLI, DIST: DHARWAD.

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1(A)(ii). BASANAGOUDA, S/O. FAKKIRAGOUDA CHIKKANAGOUDRA, AGE: 36 YEARS, OCC: AGRICULTURE, R/O. ANCHIKATTI ONI, ADARAGUNCHI-580028, TQ: HUBBALLI, DIST: DHARWAD.

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1(B). PARAVVA W/O. YALLAPPA CHANNOJI, AGE: 67 YEARS, OCC: HOUSEHOLD, R/O. YALLAPUR ONI, KULKARNI GALLI, NEAR KEDARLING TEMPLE, YELLAPURA-580020, TQ: HUBBALLI, DIST: DHARWAD.

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1(C). SHANTAVVA W/O. BASAVANNEPPA GOKUL, AGE: 64 YEARS, OCC: HOUSEHOLD, R/O. DODDA ONI, UGGINAKERI-581204, TQ: KALAGHATAGI, DIST: DHARWAD.

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1(D). MADEVI W/O. MALLANAGOUDA CHIKKANAGOUDRA, AGE: 62 YEARS, OCC: HOUSEHOLD, R/O. ADARGUNCHI-580028, TQ: HUBBALLI, DIST: DHARWAD.

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1(E). RATNAVVA W/O. RAJKUMAR KUDALAGI, AGE: 55 YEARS, OCC: HOUSEHOLD, R/O. KUDALAGI, HIREHONNIHALLI-580114, TQ: KALAGHATAGI, DIST: DHARWAD.

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1(F). SUSHILA W/O. SURESH HULLAMBI, AGE: 51 YEARS, OCC: HOUSEHOLD, R/O. DODDA ONI, UGGINAKERI-581204, TQ: KALAGHATAGI, DIST: DHARWAD.

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MALLANAGOUDA, S/O. SHANTHANAGOUDA SHIDDANAGOUDAR, SINCE DECEASED BY HIS LR’s.,

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2(A). VIJAYALAXMI, W/O. MALLANAGOUDA SHIDDANAGOUDAR, AGE: 34 YEARS, OCC: HOUSEHOLD, R/O: VARUR, TQ: HUBBALLI, DIST: DHARWAD-581 207.

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2(B). GANGAMMA, D/O. MALLANAGOUDA SHIDDANAGOUDAR, AGE: 09 YEARS, OCC: STUDENT, R/O. VARUR, TQ: HUBBALLI, DIST: DHARWAD-581207. SINCE MINOR REPRESENTED BY MINOR GUARDIAN RESPONDENT NO.2(A).

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UMESH S/O. SHIDDESHWARSWAMI MANTHAMATH, AGE: 42 YEARS, OCC: AGRICULTURE, R/O: HIREHONNALLI, TQ: KALAGHATAGI, DIST: DHARWAD-581204.

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RESPONDENTS

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(BY SRI. VIJAY S. CHINIWAR, ADVOCATE FOR R3; SRI. SANTOSH B. RAWOOT, ADVOCATE FOR SRI. GIREESH C. KATTIMANI, ADVOCATE FOR R2(A); R2(B)- MINOR REP. BY R2(A); R2- DECEASED; R1(A)(i), R1(A)(ii), R1(B) TO R1(F) ARE SERVED AND UNREPRESENTED)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION

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96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 28.06.2016 PASSED IN O.S. NO. 376/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HUBBALLI, DISMISSING THE SUIT FILED FOR DECLARATION, PARTITION AND SEPARATE POSSESSION & ETC.

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

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

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD)

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This appeal is as against the judgment and decree dated 28.06.2016 in O.S. No. 376/2014 on the file of the Prl. Senior Civil Judge & JMFC, Hubballi (for short ‘ the civil Court’ ). The appellant’s suit for partition is against his grandfather [Sri Shantanagouda – the first respondent who is no more], his father’s younger brother [Sri. Mallanagouda Shiddanagoudar - the second respondent who also is now no more].

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This Court must record that though the controversy in the present appeal could be typical, but the question presented for consideration is rather peculiar because of the submissions on a possible settlement. The concerned parties have come to terms substantially as could be discerned from the submission recorded hereinafter, but they are not able to complete the proverbial last mile to bring in a complete settlement. The dispute is between the appellant and Sri. Mallanagouda Shiddanagoudar’s wife, Smt. Vijaylakshmi for herself and her minor daughter who

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are brought on record as the legal representatives of the deceased. The appellant’s maternal aunts/ legal heirs of the deceased maternal aunt¹ are brought on record after the demise of the appellant’s grandmother [the respondent No. 1[A], but none of them have joined the fray inasmuch as they remain unrepresented.

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The civil Court has dismissed the suit

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essentially on the ground that the suit is bad for want of necessary parties i.e., the appellant’s maternal aunts not being made parties to the suit. The appellant has sought for partition asserting a share in the agricultural land in the following immovable properties.

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[i] The Agricultural land in R.S./block No. 60/1 measuring Eastern part of 5 guntas out of OA-10 guntas of Varur village, Hubballi Taluk.

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[ii] The Agricultural land in RS/block No. 60/2 measuring 3A-12 guntas, of Varur village, Hubballi Taluk.

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[iii] The Agricultural land in Block/RS No. 135/1A measuring 2A-39 guntas, assessed at Rs.8.42

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1 The eldest aunt [the eldest daughter of Sri Shanthanagouda and Smt. Neelavva] is also no more, and her two sons are brought on record.

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Ps. OA-02 guntas, 2A-37 guntas of Agadi village, Hubballi Taluk.

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[iv] A House property with backyard bearing VPC No. 105/A of Ward No. II situated at Varur, Hubballi Taluk.

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The appellant’s parents have died, and he is

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under the care of his maternal grandmother² , and as of date, he has attained majority. In fact, the appellant is present before the Court, and he is identified by Sri Arun Neelopant who is permitted to continue to represent the appellant discharging the next friend guardian. The third respondent has entered into an agreement with the deceased Sri Shantanagouda to purchase the lands in Block/RS Nos. 60/1 and 60/2 in Varur village, Hubballi [ Item Nos. 1 and 2 of the plaint Schedule ‘A’ Properties] .

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This Court must record that the appellant’s paternal aunts [ i.e., the five out of six] have executed the Relinquishment Deed dated 28.07.2014 in favour of their father, Sri Shantanagouda, relinquishing their interest in

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2 The next friend – guardian for the present proceedings .

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certain suit schedule properties³ specifically stating that these properties are ancestral properties and that they have relinquished all their interest in his favour. The other daughter [Smt. Susheela] has also executed the next Relinquishment Deed dated 16.08.2014 [Ex.P.6] mentioning the Item Nos. 1 – 4 of the plaint ‘A’ Schedule on similar terms.

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Sri Shantanagouda, after these Deeds, has executed the Gift Deed dated 01.12.2014 [Ex. D-7] gifting the land in Block/RS No. 135/1A of Varur village, Hubballi, measuring 2 acres 39 guntas including kharab [ Item No. 3 of the plaint A Schedule ] in favour of the appellant, and in this Deed the appellant is represented by Smt. Vijayalakshmi w/o Mallanagouda Shiddanagoudar - the respondent No. 2[A]. It is now brought on record that Sri Shantanagouda has also executed his last Will and Testament dated 01.08.2016 bequeathing the item Nos.1 and 2 of the plaint A Schedule, the land measuring 10 guntas in Block/RS No.

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3 The lands mentioned in Item No. 2 and 3 of plaint ‘A’ Schedule.

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97/2 in Varur village, Hubballi and the residential house in favour of Sri Mallanagouda Shiddanagoudar.

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This Court, during the course of hearing of this appeal, has called upon the learned counsels to explore the possibilities of a settlement with the learned counsels saying that Sri Shantanagouda’s daughters/ the deceased daughter’s legal representatives are not participating in the proceedings because they stand by the Relinquishment Deeds executed, and the learned counsels have also indicated the following term as a possibility:

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The appellant accepting the land in Block/RS No. 135/1A, admeasuring 2 acres 39 guntas, of Agadi village, Hubballi Taluk [Item No. 3 of plaint ‘A’ Schedule] and giving up all interest in all the other properties in favour of Smt. Vijayalakshmi and her minor daughter [the respondent No. 2 A and 2B] subject to Smt. Vijayalakshmi - the-respondent No.2(A) taking responsibility for any claim that could be made by his aunts/ concerned legal heirs and he being given a residential plot in the land in Sy.

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No. 60/2 of Varur village [Item No.2 of plaint A Schedule].

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Smt. Vijayalakshmi is present in the Court today, and she is identified by Sri Santosh Rawoot who appears along with Girish Kattimani who is on record for her. When enquired, Smt. Vijayalakshmi submits that she has no source of income except her own efforts to earn a sustenance working as a Tailor and that she has to look after her school going minor daughter.

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Sri Santosh Rawoot submits that the land

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in Block/RS No. 60/2 of Varur Village, Hubballi [ Item No.2 of the plaint A Schedule] is ideally located for plotted development, and in fact, Smt. Vijayalakshmi can explore the possibility of entering into appropriate transaction for such development of this land; that as and when this land is so developed, a plot measuring in the least 2400 sq.ft. would be allocated to the appellant in full and final settlement of his claims. The appellant can have absolute ownership of the land transferred under the Gift Deed dated 01.12.2014

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[ Item No.3 of the plaint A Schedule] . The appellant, who is

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advised by his maternal relatives, states that he must be given two plots instead of one plot. Smt. Vijayalakshmi is not readily willing for the same.

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The appellant’s suit is dismissed on the

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ground that all the families are not arrayed as parties to the suit which now stands largely resolved with Sri Shantanagouda’s daughters [the appellant’s aunts/ legal heirs] being made parties. It is reiterated by both the learned counsels for the parties that the daughters/ the deceased daughter’s legal representatives will, in tandem with the Relinquishment Deed/s, not make a claim in any of the plaint Schedule ‘A’ properties or the land measuring 10 guntas in Block/RS No. 97/2 of Varur village, Hubballi [which is not included in the plaint].

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This Court must observe that there is an undeniable ring of truth in this submission because the daughters have not only executed Relinquishment Deeds, but they have also chosen not to participate in the present proceedings, perhaps because they know that their father,

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Sri Shantanagouda, for reasons has provided for the appellant [his son from a predeceased son] and his second son, Sri Mallanagouda Shiddanagoudar. This Court in the circumstances is of the view that the points for

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consideration are:

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[a] Whether the appeal must be disposed of recording the settlement that the appellant will be entitled absolutely to the land measuring 2 acres 39 guntas in RS No. 135/1A of Agadi village, Hubballi [item No. 3 of plaint A Schedule], and

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[b] Whether Smt. Vijayalakshmi - therespondent no.2(A) must ensure that the appellant is allotted 2400 Sq Ft of plotted area in the land in RS No. 60/2 of Varur village, Hubballi and the terms upon which such settlement must be accepted so that she can, along with her minor daughter, retain ownership of Item No. 1, 2 and 4 the plaint Schedule A and the land measuring 10 guntas in RS No. 97/2 of Varur village.

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This Court in answer to the above questions

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must observe that the dispute is almost entirely settled resolved and this Court must provide for settlement of rights that does not in any manner prejudice the interest of the appellant who has attained majority just now while also considering the predicament of Smt. Vijayalakshmi, the respondent no.2(A), who is a widow and is without any source of her own income. It is also undisputed that the Item No. 1 and 2 of the plaint Schedule A are not used for agriculture and there is potential for development of a residential layout. The offer for settlement is that a plot measuring 2400 sq.ft. in the land in Block/RS No. 60/2 of Varur village, Hubballi will be given in favour of the appellant, which is also acceptable to the appellant as submitted but subject to a small change viz., that the appellant wants two plots instead of one.

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This Court is of the considered view that if

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the parties are relegated to a contest despite the acceptance of all the terms except for difference on whether Smt. Vijayalakshmi should ensure whether one or two plots

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is/are allotted to the appellant, it will only result in protracted proceedings and will not sub-serve the interests of either. In the very peculiarities of the case, this Court, which must endeavour to see early closure of the dispute given the provisions of Section 89 and Order 10 of CPC as well as Order XXIII Rule 3 of CPC, must take just and reasonable decision to resolve the narrow difference. It is undisputed that if the land in Block/RS No. 60/2 of Varur village, Hubballi has the potential for development and is not being used for agricultural purposes, the proposal must be accepted subject to the terms stated hereafter.

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This Court if of the considered view that

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there will be a just settlement if the appellant, apart from taking item No. 3 of plaint A Schedule⁴ and a plot measuring 2400 Sq Ft in item No. 2 of plaint A Schedule⁵ abutting the existing main road, is paid a sum Rs. 3,00,000/- by the

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4 The land measuring 2 acres 39 guntas in Block/RS No. 135/1A of Agadi village, Hubballi.

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5 The land measuring 3 acres 12 guntas in Block/RS No. 60/2 of Varur village, Hubballi.

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developer with whom Smt. Vijayalakshmi - the respondent No. 2[A] will have to enter into appropriate agreement for development. Further, this Court must reiterate that Smt. Vijayalakshmi, as offered, must answer all the claims that could be from Sri Shantanagouda’s daughters/ legal heirs without in any manner undermining the appellant’s interest. The questions for consideration are answered accordingly and the appeals stand disposed of by the following

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ORDER

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(a) The appellant is declared to be entitled absolutely to

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the land measuring 2 acres 39 guntas in Block/RS No. 135/1A of Agadi village, Hubballi [ Item No. 3 of plaint ‘A’ Schedule ].

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(b) The respondent Nos. 2(A) and 2(B) [Smt. Vijayalakshmi and her minor daughter] will be entitled to all the other plaint ‘A’ schedule properties and the land measuring 10 guntas in Block/RS 97/2 of Varur village, Hubballi (which is not included in the plaint subject to the following conditions.

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[i] Smt. Vijayalakshmi and her daughter shall answer all claims that could be from Sri Shantanagouda’s daughters/ legal heirs from the properties that they shall hold.

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[ii] The appellant shall be allotted a plot measuring 2400 sq.ft. in the land measuring 3 acres 12 guntas in Block/RS No. 60/2 of Varur village, Hubballi but abutting the existing Main Road.

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[iii] Smt. Vijayalakshmi shall ensure that a sum of Rs. 3,00,000/- [Rs. Three lakhs Only] shall be paid to the appellant’s account as part of any arrangement that could be entered into for development of the land measuring 3 acres 12 guntas in Block/RS No. 60/2 of Varur village, Hubbali.

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[iv] There shall be charge against this land for both the liability to ensure allotment of a plot 2400 sq.ft. and Rs. 3,00,000/- [Rs. Three lakhs Only] payable to the appellant and this charge shall be enforceable if there is any attempt to sell the land as against

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developing the same into a residential Layout.

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The office is called upon to draw decree accordingly.

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There shall be no costs

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Sd/(B.M.SHYAM PRASAD) JUDGE

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Sd/(C M JOSHI) JUDGE

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BVV Ct:vh List No.: 1 Sl No.: 26

Kumar. Mrutyunjayagouda v. Shanthanagouda

Case brief

What is this about?

What did the court decide?

Kumar. Mrutyunjayagouda v. Shanthanagouda

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

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