Remanded

Raghavendrao v. Gururajrao S/O Bheemrao Kulkarni

Karnataka HC12 Dec 2024RFA/100145/2017

Case brief

AI extract

What is this about?

The High Court set aside the trial court decree in a partition suit because legal questions regarding the propositus father death date, adoption validity, and the Hindu Succession Act applicability were not considered. The matter is remitted for fresh consideration limited to remaining properties.

What did the court decide?

Impugned judgment and decree set aside; matter remitted to trial court for fresh consideration on remaining properties.

Raghavendrao Vs Gururajrao S/O Bheemrao Kulkarni — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:18170 RFA No. 100145 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 12^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR FIRST APPEAL NO. 100145 OF 2017 (PAR/POS-)

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BETWEEN:

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RAGHAVENDRAO S/O. SRINIVASRAO DESHPANDE,

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AGE: 55 YEARS, OCC: AGRICULTURE, R/O: NARINAL, TQ: KUSHTAGI, DIST: KOPPAL, P.C. NO: 583231.

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VASUDEVARAO ALIAS VASARAO S/O. SRINIVASRAO KULKARNI, AGE: 65 YEARS, OCC: RETIRED, R/O: BEHIND SANGAM TALKIES, VIDYA NAGAR, TAVARAGERA, TQ: KUSHTAGI, DIST: KOPPAL, P.C. NO: 583279.

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Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA

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A.RAJENDRAPRASAD S/O A. VEERAYYA, AGE: 65 YEARS, OCC: AGRICULTURE, R/O: AYYANAGOUDA COMPLEX, BEHIND BUS STAND, TAVARAGERA, TQ: KUSHTAGI, DIST; KOPPAL, P.C. NO: 583279. (DELETED AS PER COURT ORDER DATED 17.08.2017)

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…APPELLANTS (BY SRI. P. G. MOGALI, ADVOCATE)

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2 - NC: 2024:KHC-D:18170 RFA No. 100145 of 2017

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AND:

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GURURAJRAO S/O. BHEEMRAO KULKARNI, AGE: 50 YEARS, OCC:AGRICULTURE

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SWAMIRAO S/O. BHEEMRAO KULKARNI, AGE: 57 YEARS, OCC:AGRICULTURE, BOTH ARE R/O: HUNUR TQ: LINGASAGAR, DIST: RAICHUR P.C. NO: 583231.

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GANGUBAI W/O. MADDURAO KULKARNI, AGE: 62 YEARS, OCC: HOUSE HOLD, R/O: SINDHANUR, TQ: SINDHANUR, DIST: RAICHUR, P.C. NO: 584128.

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RAGHAVENDRA S/O. MADDURAO KULKARNI, AGE: 32 YEARS, OCC:AGRICULTURE, R/O: SINDHANUR, TQ; SINDHANUR, DIST: RAICHUR, P.C. NO: 584128.

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SAROJABAI @ MANTHAKKA W/O. NARAYANRAO KULKARNI, AGE: 72 YEARS, OCC:HOUSEHOLD, R/O: PAMANAKAL, TQ: MANVI, DIST: RAICHUR, P.C. NO: 584123.

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TIMMABAI W/O. VENKATARAO KULKARNI, AGE: 67 YEARS, OCC:HOUSEHOLD, R/O: SINDHANUR,

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3 - NC: 2024:KHC-D:18170 RFA No. 100145 of 2017

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DIST: RAICHUR, P.C. NO: 584122.

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AHALYABAI W/O. RAMRAO HUDDAR, AGE: 50 YEARS, OCC:HOUSEHOLD, R/O: HOONUR, TQ; LINGASUR, DIST: RAICHUR, P.C. NO: 584122.

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SHANTABAI W/O. JANARDHANARAO DESHPANDE, AGE: 47 YEARS, OCC:HOUSEHOLD, R/O: SINDHANUR, TQ: SINDHANUR, DIST: RAICHUR, P.C.NO: 584128.

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A. RAJENDRAPRASAD S/O. A. VEERAPPA, AGE: 65 YEARS, OCC: AGRICULTURE, R/O. AYYANAGOUDA COMPLEX, BEHIND BUS-STAND, TAVARAGERA, TQ: KUSHTAGI, DIST: KOPPAL.

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…RESPONDENTS

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(BY SRI. H. N. GULARADDI FOR C/R1, ADVOCATE; SRI. A.B. PATIL, ADVOCATE FOR R9; R2 TO R8 ARE SERVED BUT UNREPRESENTED)

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THIS RFA FILED UNDER SEC. 96 OF CPC., PRAYING TO SETASIDE THE JUDGMENT AND DECREE PASSED BY THE LEARNED SENIOR CIVIL JUDGE & JMFC., AT KUSHTAGI IN O.S.NO.16/2015 DATED 04.03.2017 AND DISMISS THE SUIT FILE BY THE RESPONDENTS-PLAINTIFFS WITH EXEMPLARY COST IN THE INTEREST OF JUSTICE AND EQUITY.

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

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

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4 - NC: 2024:KHC-D:18170 RFA No. 100145 of 2017

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ORAL JUDGMENT

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This appeal is arising from a decree in a suit for partition. The trial court granted a decree for half share in respect of the suit properties and also held the sale deed in favour of defendant No.3 is not binding on the plaintiff. Defendants No.1 and 2 are before this court, in appeal. Defendant No.3 has not filed an appeal. He is arrayed as one of the respondents.

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The genealogy is as under:

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HANUMATHARAO S/O. SWAMIRAO DESHPANDE (DEAD)

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TIRUMALARAO SWAMIRAO KRISHNARAO BHEEMARAO VENKATARAO
(Dead) (Dead) (Dead) (Dead) Wife (Dead)
Wife (Dead) Wife-Tulasabai Gone in Wife (Dead)
Dead Adoption to
Hagarnal Narayanarao
Family (Alive)
Daughter Padmavathi
Laxmanrao Hanumantharao
Srinivasarao Sitaramarao (Alive) (Dead)
(Dead) (Dead)
Wife (Dead) Wife-Bharathi
(Alive)
1 st Wife 2 nd Wife
No issue No issue
(Dead) (Dead) Jagannatharao Janardhanarao
(Alive) (Alive)
Vasudevarao Raghavendrarao
Deft. No.2 Deft. No.1 Satish Pranesh Poornima
(Alive) (Alive) (Alive)
Madhavarao Swamirao Gururajarao
(Alive) Pltf No.2 Pltf. No.1

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5 - NC: 2024:KHC-D:18170 RFA No. 100145 of 2017

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2. Hanumantharao Swamirao was the propositus.

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He had five sons Tirumalarao, Swamirao, Krishnarao Bheemarao and Venkatarao. It is stated that all the five sons are no more. Defendants No.1 and 2 represent the branch of Tirumalarao. It is stated that one Sitaramarao who is one of the sons of Tirumalarao is given in adoption to Swamirao who had no male issues. Swamirao had only one daughter by name Padmavati. The suit is filed by two children of Padmavati namely Swamirao and Gururajrao. Krishnarao has gone in adoption to some other family that is an admitted position. Bheemarao and Venkatarao separated long back and hence, the legal representatives of those two persons are not made parties to this proceeding.

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Suit is filed by two sons of Padmavati initially

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and later daughters were impleaded as plaintiffs No.3 to 7. One of the sons of Padmavati namely Madhavarao is not made a party. It is stated that Madhavrao another son of Padmavati was not alive when the suit was filed and his

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6 - NC: 2024:KHC-D:18170 RFA No. 100145 of 2017

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wife and son are arrayed as plaintiffs No.3 and 3(a). It is stated that adopted son Sitaramarao had no issues and he is said to have executed a Will in favour of children of his brothers namely Srinivarao. The said Will is in dispute. Adoption of Sitaramarao is also in dispute. The defendants took a stand that Sitaramarao is given in adoption and because of adoption the daughter Padmavathi does not get any right in the property of Swamirao. The plaintiffs contend that even if the adoption is said to be valid daughter Padmavati will have half share in the property of Swamirao.

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It is relevant to note that there is no issue framed relating to the adoption of Sitaramarao. No finding is given.

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It is also relevant to note that whether Padmavati the daughter of Swamirao will acquire any right in the property depends on the question on the date of death of Swamirao. If the Swamirao had died before 1956, Padmavati will not acquire any share in the

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7 - NC: 2024:KHC-D:18170 RFA No. 100145 of 2017

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property. In case, Swamirao died before 1956, his wife Tulasabai will have half life estate over the property and if adoption is proved, Sitaramrao will have half right over the property. If Tulasabia had died after 1956, her half limited estate would devolve upon Sitaramarao if his adoption is established. These factors have not considered by the trial court. Under these circumstances the matter requires to be remitted to the trial court to consider the following questions of law;

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“i) Whether Swamirao died before 1956. ii) Whether Swamirao had adopted Sitaramarao. iii) Whether Tulasabia died before 1956 or after the commencement of Hindu Succession Act, 1956.”

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Since the answers to these questions will have

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a bearing on the final outcome of the suit, the trial court shall allow the parties to lead evidence on these issues and thereafter decide the case in accordance with law.

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8 - NC: 2024:KHC-D:18170 RFA No. 100145 of 2017

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It is relevant to note that after the institution of

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the suit certain developments have taken place and pursuant to the decree for partition granted, final decree proceeding was initiated. In the final decree proceeding the present appellants namely Vasudevarao and Raghvendrarao, the defendants No.1 and 2 have sold item No.1 and 2 properties in favour of defendant No.3.

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During the pendency of the Final Decree Proceeding, the petitioners namely the plaintiffs No.1 to 7 have relinquished their right over the item No.1 and 2 property of defendant No.3 and it is also forthcoming from the pleadings that defendants No.1 and 2 have sold their alleged share in item No.1 and 2 properties in favour of defendant No.3. Hence, the remand order is only confined to remaining properties. The suit in respect of item No.1 and 2 properties is disposed of in terms of the settlement arrived at in the final decree proceedings as well as in view of the sale deed executed by defendants No.1 and 2.

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9 - NC: 2024:KHC-D:18170 RFA No. 100145 of 2017

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It is made clear that the questions framed

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above shall be decided without reference to any of the transactions that have taken place during the pendency of the suit and the sale deed between defendants No.1, 2 and 3.

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This Court has not expressed anything on the merits of the contentions of the parties on the issues framed and all contentions kept open. Hence, the following:-

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ORDER

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i) Impugned judgment and decree dated 04.03.2017 in O.S. No.16/2015 on the file of the Senior Civil Judge, Kushtagai are set-aside.

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ii) The matter is remitted to the trial court for fresh consideration in respect of all properties except item No.1 and 2.

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iii) The parties shall appear before the trial court on 13.01.2025 without any further notice.

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10 - NC: 2024:KHC-D:18170 RFA No. 100145 of 2017

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iv) The presence of defendant No.3 is not required as

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the item No.1 and 2 property is not the subject

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matter of the suit any more.

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v) Registry to return the trial court records.

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Sd/(ANANT RAMANATH HEGDE)

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JUDGE

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CHS

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List No.: 1 Sl No.: 37

Raghavendrao v. Gururajrao S/O Bheemrao Kulkarni

Case brief

What is this about?

What did the court decide?

Raghavendrao v. Gururajrao S/O Bheemrao Kulkarni

Case brief

What is this about?

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