Dismissed

Smt.Bhagirathi W/O. Subhaschandra Pattar v. Venkappa S/O. Bhimappa Pattar

Karnataka HC12 Aug 2024RFA/100178/2018

Case brief

AI extract

What is this about?

A regular first appeal was dismissed against a civil court decree. The High Court upheld the finding of an oral partition among a father and his two sons in 1988. The Court ruled the appellant has no claim over land sold by her brother for family necessities, but is entitled to a one-third share in the father's relinquished portion alongside the other brother.

What did the court decide?

Appeal dismissed; final decree of the civil court upheld determining one-third shares in suit property for appellant and two sons.

Smt.Bhagirathi W/O. Subhaschandra Pattar Vs Venkappa S/O… — Partition | Karnataka HC (2024)

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NC: 2024:KHC-D:11465-DB RFA No. 100178 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 12^TH DAY OF AUGUST, 2024 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.100178 OF 2018 (DEC/INJ)

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BETWEEN:

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SMT. BHAGIRATHI, W/O. SUBHASCHANDRA PATTAR, AGE: 54 YEARS, OCC: HOUSEHOLD, R/O. KULGOD-591 310, TQ: GOKAK, DIST: BELAGAVI.

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APPELLANT

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(BY SMT. SURABHI KULKARNI AND SRI. CHETAN MUNNOLI, ADVOCATES)

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AND:

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VENKAPPA S/O. BHIMAPPA PATTAR, AGE: 49 YEARS, OCC: AGRICULTURIST,

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Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD Date: 2024.09.10 10:43:38 +0530

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SHEKHAR S/O. BHIMAPPA PATTAR, AGE: 44 YEARS, OCC: AGRICULTURIST,

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BHAIRAPA S/O. RAMAPPA PURANIK AGE: 60 YEARS, OCC: AGRICULTURIST,

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ALL ARE R/O. KULGOD-591 310, TQ: GOKAK, DIST: BELAGAVI.

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RESPONDENTS

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(BY SRI. G.B.NAIK AND SMT. P.G.NAIK, ADVOCATES FOR R1 AND R2; NOTICE TO R3 IS SERVED)

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THIS RFA IS FILED UNDER SEC. 96 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 03.04.2018 PASSED IN O.S.NO.36/2014 ON THE FILE OF THE II-ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, GOKAK, PARTLY DECREEING THE SUIT FILED FOR DECLARATION, PERMANENT INJUNCTION, PARTITION AND SEPARATE POSSESSION & ETC.

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

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CORAM: 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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ORAL JUDGMENT

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

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The appellant - plaintiff has partly succeeded in the suit in O.S. No. 36/2014 on the file of II Addl. Civil Judge and J.M.F.C., Gokak [for short, ‘ the civil Court’ ]. The civil Court has decreed the appellant’s suit declaring that she is entitled for 1/3^rd share in the land bearing R.S. No. 63/2C measuring 4 acres 26 guntas of Kulgod village, Gokak Taluk and that the first and second respondent would also be entitled to 1/3^rd share each in this property. The land in

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R.S. No. 63/2 is totally measuring 12 acres and 26 guntas. The two extents of 4 acres each are mentioned separately in the plaint schedule and the third extent of 4 acres and 26 guntas is described as Suit Property. This Court, reasons of convenience, must refer to the larger extent as ‘ the Subject Property’ and the extent of 4 acres 26 Guntas as the Suit Property .

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The appellant has filed this suit against the first and second respondents, who are her brothers, and the third respondent, who is the purchaser of an extent of four acres from one of the brothers. The appellant has pleaded as follows.

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There is a partition inter se between her father, Sri Bheemappa, and her two brothers [the first and the second respondent], in the year 1988 and that her father was allotted the Suit Property in such partition.

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The father has settled the Suit Property in her favour by way of a relinquishment deed

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because she was a widow forced to reside in paternal home with her child and therefore, she is entitled for declaration that she is the absolute owner of the subject property.

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The appellant has also sought for, as an alternative relief, if the civil Court were to find that there is no oral partition, for a share in the total extent of the land in the subject property. The first and second respondents have filed Written Statement admitting the oral partition but have contested the assertion that the father has relinquished his interest in the property allotted to him in such partition in favour of the appellant.

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The civil Court has framed Issues which require the appellant to prove that she is the absolute owner of the suit property and the first and second respondents to prove that the portion allotted to the second respondent is sold in favour of the third respondent for family necessities. The civil Court has answered the Issue No. 1 on whether the appellant proves that she is the owner of the subject

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property in the negative and the Issue No.3 on whether the portion of the land in Sy. No. 63/2 is transferred in favour of the third respondent for family necessities in the affirmative.

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The appellant to prove her case has examined herself as PW1 and another witness, Sri Venkappa Rangappa Channal as PW2. The respondents have examined Sri Satteppa Somakkannavar as DW2 and the first and third respondents as DW 1 and DW 3¹ . The parties have relied upon mutation extracts, RTCs and a certified copy of the sale deed dated 31.03.1999 executed by the second respondent in favour of the third respondent apart from revenue proceedings.

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Smt. Surabhi Kulkarni, the learned counsel for the appellant, submits that the appellant cannot pursue her grievance as against the civil Court’s finding on the relinquishment given the fact that she can only rely upon an unregistered transaction, but this Court must interfere with the civil Court’s finding that there is an oral partition in the

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1 The third respondent has remained ex-parte but is examined as a witness .

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year 1988 and that the second respondent has sold his portion of the land in Sy. No. 63/2 for his necessities. The learned counsel emphasizes that the appellant’s pleading that there was an oral partition in the year 1988 cannot be held against her because the appellant is pleading, as is permissible in law, alternatively that she is entitled for a share in the Subject Property viz., the larger property measuring 12 acres 26 guntas in R.S. No. 63/2. The learned Counsel argues that this Court must examine the evidence and opine whether the appellant is entitled for a share in this larger extent.

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Smt. P.G. Naik, the learned counsel for the first and second respondents, submits that she cannot contest the proposition that it would be open to the appellant to take alternative pleadings but the merits of the appellant’s case as against oral partition must be examined in the light of evidence on record, and the learned counsel argues that the evidence on record is unequivocal and categorical that there was a partition amongst the father and the two sons in the year 1988.

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In the light of these submissions, the point for consideration is:

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Whether this Court can hold that the civil Court has erred in concluding that there was an oral partition between the father and his two sons [the first and second respondents] in the year 1988 and that the appellant is entitled for a share even in the portion transferred in favour of the third respondent?

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The merits of the rival contentions for decision on

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the afore point are examined despite the appellant’s pleadings on oral partition as she is seeking alternative relief of partition. The appellant in her evidence is categorical in her cross examination that the first and second respondents, after oral partition with the father, are in possession of their respective shares. This categorical evidence must be read in conjunction with the evidence of the witness [PW2] who, unlike the appellant, for the first time states that the father and the two brothers had only made certain arrangements for separate cultivation of the

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larger extent measuring 12 acres 26 guntas in R.S. No. 63/2 without a partition by metes and bounds.

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If the appellant is categorical in her evidence that the father and brothers orally partitioned the larger extent of land in three parts in the year 1988, the proposition that only arrangement for separate cultivation was made as against a partition by metes and bounds is introduced for the first time through this witness. This Court cannot take any exception with the civil Court’s finding that there was oral partition with both the appellant and the first and third respondents being categorical in their evidence that there was a oral partition, and especially when the details are filed accordingly with the revenue authorities for change of the entries for the larger extent of the land.

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This Court must conclude that with the oral partition being established, and with the necessary reasonable inference that such partition is with the appellant’s consent because she did not raise any claim during her father’s lifetime, that the second respondent was

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entitled to sell his portion in the subject property and the first respondent is entitled to his portion absolutely. The appellant cannot have any claim in the portion sold by the second respondent in favour of the third respondent. In that event, the Suit Property viz ., the extent measuring 4 acres and 26 guntas allotted to the father and left behind by him without testamentary disposition, must devolve in favour of the appellant and the first and second respondents with each taking 1/3^rd share in this portion. Therefore, there cannot be any interference with the civil Court’s judgment and decree. Hence, the point for consideration is answered against the appellant dismissing the appeal.

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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.: 32

Smt.Bhagirathi W/O. Subhaschandra Pattar v. Venkappa S/O. Bhimappa Pattar

Case brief

What is this about?

What did the court decide?

Smt.Bhagirathi W/O. Subhaschandra Pattar v. Venkappa S/O. Bhimappa Pattar

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

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