Allowed

Smt.Paravva W/O Devappa Huli v. Veerupaxappa S/O Chandrappa Angadi

Karnataka HC9 Dec 2024RFA/100183/2018

Case brief

AI extract

What is this about?

Appeal against dismissal of partition suit. HC set aside impugned order allowing plaintiff liberty to file suit declaring civil death before claiming partition, and excluded prior suit time for limitation.

What did the court decide?

Appeal allowed in part; impugned judgment/decree set aside; suit dismissed but with liberty to file fresh suit for declaration of civil death and partition.

Smt.Paravva W/O Devappa Huli Vs Veerupaxappa S/O Chandrappa Angadi — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:17992 RFA No. 100183 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 9^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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REGULAR FIRST APPEAL NO.100183 OF 2018 (PAR)

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BETWEEN:

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SMT. PARAVVA W/O. DEVAPPA HULI, AGE: 60 YEARS, OCC: HOUSEHOLD WORK, R/O: BASAPUR, TQ: KUNDGOL, DIST: DHARWAD, NOW R/O: SORATUR, TQ and DIST: GADAG.

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…APPELLANT

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(BY SRI. MAHESH WODEYAR AND SRI. NAVEEN CHATRAD, ADVOCATES)

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AND:

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

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VEERUPAXAPPA S/O. CHANDRAPPA ANGADI, AGE: 48 YEARS, OCC: AGRICULTURE, R/O: BASAPUR, TQ: KUNDGOL, DIST: DHARWAD, NOW R/O: SAINAGAR, HUBBALLI, DIST: DHARWAD. PIN CODE – 580020.

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SMT. DRAKSHYANAI W/O. SHIVAKALLAPPA ANGADI, AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O: BASAPUR,

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2 - NC: 2024:KHC-D:17992 RFA No. 100183 of 2018

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TQ: KUNDGOL, DIST: DHARWAD. PIN CODE - 581113.

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CHANDRAPPA S/O. SHIVAKALLAPPA ANGADI, AGE: 25 YEARS, OCC: AGRICULTURE, R/O: BASAPUR, TQ: KUNDGOL, DIST: DHARWAD. PIN CODE – 581113.

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SMT. BHAVANAI W/O. MANJUNATH ANGADI, AGE: 23 YEARS, OCC: HOUSEHOLD WORK, R/O: NEELAGUND, TQ AND DIST: GADAG. PIN CODE – 581117.

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SMT.ANASUYA W/O. CHANNAPPA SUNKAD, AGE: 50 YEARS, OCC: HOUSEHOLD WORK, R/O: HEBBAL, TQ: NAVALGUND, DIST: DHARWAD. PIN CODE – 582208.

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SMT. LAXMAVVA W/O. SHIVANAND ANGADI, AGE: 40 YEARS, OCC: HOUSEHOLD WORK, R/O: BASAPUR, TQ: KUNDGOL, DIST: DHARWAD. PIN CODE – 581113.

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MANJUNATH S/O. SHIVANAND ANGADI, AGE: 23 YEARS, OCC: AGRICULTURE, R/O: BASAPUR, TQ: KUNDGOL, DIST: DHARWAD.

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3 - NC: 2024:KHC-D:17992 RFA No. 100183 of 2018

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PIN CODE – 581113.

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MALLIKARJUN S/O. SHIVANAND ANGADI, AGE: 18 YEARS, OCC: AGRICULTURE, R/O: BASAPUR, TQ: KUNDGOL, DIST: DHARWAD. PIN CODE – 581113.

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SMT. SAVITRI W/O. UDAYA VALISHETTER, AGE: 47 YEARS, OCC: AGRICULTURE, R/O: KALGHATAGI, DIST: DHARWAD. PIN CODE – 581204.

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SMT. VIJAYALAXMI W/O. CHANDRAPPA ANGADI, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, NOW R/O: BASAPUR, TQ: KUNDGOL, DIST: DHARWAD, NOW R/O: SAINAGAR, HUBBALLI, DIST: DHARWAD. PIN CODE – 580020.

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…RESPONDENTS

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(R1 TO R4, R6 TO R8 AND R10 – NOTICE IS HELD SUFFICIENT; R5 AND R9 SERVED BUT UNREPRESENTED)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 08.03.2018 PASSED BY THE LEARNED SENIOR CIVIL JUDGE & JMFC., KUNDGOL IN O.S.NO.28/2017 AND CONSEQUENTLY DECREE THE SUIT AS PRAYED FOR, IN THE INTEREST OF JUSTICE AND EQUITY.

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

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4 - NC: 2024:KHC-D:17992 RFA No. 100183 of 2018

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

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ORAL JUDGMENT

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Heard the learned counsel appearing for the appellant. Respondents though served, are not

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represented.

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Since the appeal lies in a narrow compass, notice for final hearing was sent to respondents. However, they have not chosen to appear before the Court. Hence, the matter is taken up for final hearing.

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The suit for partition and separate possession is dismissed on the premise that plaintiff did not prove her relationship as the daughter of Fakkirappa and Neelavva. The defendants represent the branch of Chandrappa, who is said to be the plaintiff's father's brother.

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Since the Court has concluded that the plaintiff

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could not prove the relationship, the suit is dismissed. Hence the plaintiff is before this Court.

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5 - NC: 2024:KHC-D:17992 RFA No. 100183 of 2018

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Learned counsel Sri.Mahesh Wadeyar,

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appearing for the appellant, would contend that the Trial Court has not considered the public record, namely the school certificates of the plaintiff marked as Exs.P10 and P11, which revealed the status of the plaintiff as daughter of Fakirappa. It is his contention that there is no proper appreciation of the evidence produced by the plaintiff. He would further contend that, father of the plaintiff has been missing for the last 35 years and, as such, the Court ought to have presumed that he is dead and granted a decree for partition.

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It is also his contention that the documents produced by the defendants at Ex.D2 itself would reveal that the propositus Virupaxappa Angadi has two children by name, Fakirappa and Chandrappa. It is his further contention that the school records would revals that the plaintiff is the daughter of Fakirappa.

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This Court has perused the records and considered the contentions raised at the Bar.

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6 - NC: 2024:KHC-D:17992 RFA No. 100183 of 2018

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The following points arise for consideration:

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i. Whether the plaintiff proves that she is the daughter of the late Fakirappa?

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ii. Whether the plaintiff is entitled to partition and separate possession?

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The entire claim of the plaintiff is based on the contention that she is the daughter of Fakirappa from his wife, Neelavva. Fakirappa and Neelavva, according to the plaintiff, are dead. The plaintiff contends that her father Fakirappa is not heard of for more than 35 years and, as such, he is to be presumed as dead, and as his mother is also dead. She claims that Fakirappa’s half share in the properties would devolve upon her. To support her contention, the plaintiff has produced the death certificate of her mother Neelavva and the school records of the plaintiff.

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The Trial Court disbelieved the death certificate of Neelavva to hold that the plaintiff is not the daughter of

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7 - NC: 2024:KHC-D:17992 RFA No. 100183 of 2018

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Fakirappa, on the premise that the death certificate shows that Neelavva’s husband is Fakkirashetti.

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Since the plaintiff claims that she is the daughter of Fakirappa and his half-share would devolve upon her on the premise that he has not been heard of for the last 35 years, this Court is of the view that the plaintiff should seek a declaration that Fakirappa has not been heard of for more than 7 years and there is a civil death of Fakirappa. Under the circumstances, this Court is of the view that the judgment and decree passed by the Trial Court are to be set aside, with liberty to the plaintiff to file an appropriate suit seeking declaration of the civil death of Fakirappa and also for appropriate relief regarding partition. If such a suit is filed, the same shall be decided without being influenced by the observations made by the Trial Court in the impugned judgment and decree. All contentions of the parties are kept open.

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Hence the following:

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8 - NC: 2024:KHC-D:17992 RFA No. 100183 of 2018

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ORDER

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i. The appeal is allowed in part.

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ii. The judgment and decree dated 08.03.2018 passed by the Senior Civil Judge, Kundgol in O.S.No.28/2017 are set aside.

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iii. The suit of the plaintiff is dismissed with liberty to the plaintiff to file a fresh suit seeking appropriate relief regarding the declaration of the civil death of Fakirappa and partition.

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iv. The time spent in prosecuting the earlier suit till this date is to be excluded in computing the limitation period.

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Sd/(ANANT RAMANATH HEGDE)

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JUDGE

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AM – up to para 3 gab – para 4 to end CT:ANB/List No.: 1 Sl No.: 43

Smt.Paravva W/O Devappa Huli v. Veerupaxappa S/O Chandrappa Angadi

Case brief

What is this about?

What did the court decide?

Smt.Paravva W/O Devappa Huli v. Veerupaxappa S/O Chandrappa Angadi

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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