Partly allowed

Anil S/O. Appanna Randewadi v. Kumari Sheetal D/O Anil Randewadi

Karnataka HC3 Sept 2024RFA/100214/2021

Case brief

AI extract

What is this about?

The High Court in part allowed the regular first appeal and cross-objection, setting aside a judgment that partially decreed a partition suit. The suit for partition of ancestral properties and separate possession was remanded to the civil court for complete adjudication, with directions to dispose of the matter expeditiously.

What did the court decide?

Appellants at liberty to file written statement within one month; civil court to dispose of suit expeditiously as pending for over five years.

Anil S/O. Appanna Randewadi Vs Kumari Sheetal D/O Anil Randewadi — Partition | Karnataka HC (2024)

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NC: 2024:KHC-D:12642-DB RFA No. 100214 of 2021 C/W RFA.CROB No. 100029 of 2022

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 3^RD DAY OF SEPTEMBER, 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.100214 OF 2021 (PAR/POS)

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C/W

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RFA CROSS OBJ NO. 100029 OF 2022

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IN RFA NO.100214 OF 2021:

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BETWEEN:

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ANIL S/O. APPANNA RANDEWADI AGE: 48 YEARS, OCC: BUSINESS/AGRICULTURE.

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SMT. TEJASWINI D/O. APPANNA RANDEWADI, AGE: 46 YEARS, OCC: HOUSEHOLD WORK.

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Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD Date: 2024.09.10 10:43:58 +0530

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SHRI. SUNIL S/O. APPANNA RANDEWADI, AGE: 41 YEARS, OCC: BUSINESS/AGRICULTURE,

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ALL ARE RESIDENT OF R/O. 1419, NEHRU NAGAR, ALNAVAR, DIST: DHARWAD-581103.

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…APPELLANTS

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(BY SRI. VITTHAL S. TELI, ADVOCATE)

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AND:

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KUMARI. SHEETAL D/O. ANIL RANDEWADI AGE: 14 YEARS, OCC: STUDENT, SINCE MINOR R/PD BY NEXT FRIEND I.E. MOTHER RESPONDENT NO.2.

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2 - NC: 2024:KHC-D:12642-DB RFA No. 100214 of 2021 C/W RFA.CROB No. 100029 of 2022

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SMT. VAISHALI W/O. ANIL RANDEWADI AGE: 40 YEARS, OCC: HOUSEHOLD,

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BOTH ARE R/O: 1419, NEHRU NAGAR, ALNAVAR, DIST: DHARWAD-581103.

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…RESPONDENTS

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(BY SRI. SUJEETH S. HIREMATH, ADVOCATE FOR SRI. R.M. HIREMATH, ADVOCATE)

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THIS RFA IS FILED UNDER SEC. 96 READ WITH ORDER 41 RULE 1 OF C.P.C., 1908, AGAINST THE JUDGMENT AND DECREE DATED 05.10.2021 PASSED IN O.S.NO.283/2019 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, DHARWAD, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION AND DECLARATION.

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IN RFA CROB. NO.100029 OF 2022:

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BETWEEN:

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KUMARI. SHEETAL D/O. ANIL RANDEWADI AGE: 14 YEARS, SINCE MINOR REPRESENTED BY MOTHER AND NEXT FRIEND, SMT. VAISHALI W/O. ANIL RANDEWADI, AGE: 40 YEARS, OCCN: HOUSEHOLD WORK, R/O. 1419, NEHRU NAGAR, ALNAVAR, DIST: DHARWAD-581103.

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SMT. VAISHALI W/O. ANIL RANDEWADI AGE: 40 YEARS, OCCN: HOUSEHOLD WORK, R/O: 1419, NEHRU NAGAR, ALNAVAR, DIST: DHARWAD-581103.

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…CROSS-OBJECTORS

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(BY SRI. SUJEET S. HIREMATH, ADVOCATE FOR SRI. R.M.HIREMATH, ADVOCATE)

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3 - NC: 2024:KHC-D:12642-DB RFA No. 100214 of 2021 C/W RFA.CROB No. 100029 of 2022

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AND:

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SHRI. ANIL S/O. APPANNA RANDEWADI, AGE: 48 YEARS, OCCN: BUSINESS, R/O: 1419, NEHRU NAGAR, ALNAVAR, DIST: DHARWAD-581103.

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SMT. TEJASWINI D/O. APPANNA RANDEWADI, AGE: 46 YEARS, OCCN: HOUSEHOLD WORK, R/O: 1419, NEHRU NAGAR, ALNAVAR, DIST. DHARWAD-581103.

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SHRI. SUNIL S/O. APPANNA RANDEWADI AGE: 39 YEARS, OCCN: BUSINESS, R/O: 1419, NEHRU NAGAR, ALNAVAR, DIST: DHARWAD-581103.

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…RESPONDENTS

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(BY SRI. VITTHAL S. TELI, ADVOCATE)

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RFA CROSS OBJECTION IN RFA NO.100214/2021 IS FILED UNDER ORDER 41 RULE 22 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 05.10.2021 PASSED IN O.S.NO.283/2019 ON THE FILE OF THE I-ADDITIONAL SENIOR CIVIL JUDGE, AND CHIEF JUDICIAL MAGISTRATE DHARWAD, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION AND DECLARATION.

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THIS APPEAL AND RFA CROSS OBJECTION, 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

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AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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4 - NC: 2024:KHC-D:12642-DB RFA No. 100214 of 2021 C/W RFA.CROB No. 100029 of 2022

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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 appellants are the defendants in the suit for partition commenced by the respondents [the cross – objectors] in O.S. No.283/2019 on the file of the I Additional Senior Civil Judge and C.J.M., Dharwad [for short, ‘the civil Court’ ]. The civil Court, by the impugned judgment and decree dated 05.10.2021, has partially decreed the suit in the following terms:

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Declaring that the first respondent [the first cross-objector] is entitled for 1/6^th share in suit item Nos.1 to 4 properties while dismissing the suit as against the next two properties [the suit item Nos.5 and 6].

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Declaring that the second respondent [the second cross-objector] would be entitled for maintenance and the right of residence as against the first appellant’s remaining 1/6^th share in the properties for which decree for partition is granted.

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NC: 2024:KHC-D:12642-DB RFA No. 100214 of 2021 C/W RFA.CROB No. 100029 of 2022

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Restraining the appellants from alienating

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the suit properties until partition is affected

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and the first respondent [the first crossobjector] is allotted her share.

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This Court, for reasons of convenience, must refer to the parties as they are arrayed before the civil Court.

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The second plaintiff is married to the first

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defendant and the first plaintiff is their daughter. The second and third defendants are the first defendant’s siblings. The second plaintiff has initiated matrimonial proceedings and proceedings under Section 125 of Cr.P.C. for maintenance. It is also stated that the second plaintiff has initiated proceedings under the provisions of Protection of Women from Domestic Violence Act, 2005. The relationship inter-se parties and the fact that the second plaintiff and the first defendant are estranged are not contested.

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According to the plaintiffs, the suit item Nos.1 to

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4 properties are ancestral properties and from the nucleus

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NC: 2024:KHC-D:12642-DB RFA No. 100214 of 2021 C/W RFA.CROB No. 100029 of 2022

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that is put together from these properties, the next two properties are purchased. The defendants have not contested the suit though they are served. The civil Court has framed points for its consideration in the light of the plaintiffs’ case that the suit schedule properties are ancestral properties and a Relinquishment Deed dated 30.07.2011 is got up by the defendants to deny the plaintiffs’ their share in the suit schedule properties.

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The civil Court has answered these points

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opining that the plaintiffs are able to prove that the suit item Nos.1 to 4 properties are ancestral properties but there is nothing on record to establish that the other two properties are purchased from the nucleus. The civil Court, as regards the Relinquishment Deed executed by the first defendant, has opined that because the first plaintiff will have an undeniable share in the father’s [the first defendant’s] share, the Relinquishment Deed cannot bind such share and that this deed also cannot adversely affect the second plaintiff’s right to maintenance.

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7 - NC: 2024:KHC-D:12642-DB RFA No. 100214 of 2021 C/W RFA.CROB No. 100029 of 2022

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If Sri. Vittal S. Teli, the learned counsel for the

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appellants, submits that this Court may have to intervene with the impugned judgment and decree to enable an opportunity to the appellants to contest the suit on merits, Sri. Sujeet S. Hiremath, the learned counsel for the plaintiffs, submits that the second plaintiff has examined herself and she is categorical in her oral evidence that the suit item Nos.1 to 4 properties yield income and that this income constitutes sufficient joint family nucleus which is applied to purchase the other two properties. Sri. Sujeet S. Hiremath submits that the civil Court should have considered the probative value of this ocular evidence in the light of the fact that the defendants have not contested the suit.

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This Court must opine that the circumstances canvassed, the undisputed fact of estrangement between the second plaintiff and the first defendant and the plaintiffs’ specific case that the ancestral properties yield income which constitute sufficient nucleus, establish peculiarities

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8 - NC: 2024:KHC-D:12642-DB RFA No. 100214 of 2021 C/W RFA.CROB No. 100029 of 2022

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from which this Court can reasonably infer that the impugned judgment and decree has not resulted in complete adjudication of the dispute. Crucially, the learned counsels state in unison that the appeal and the cross-objection could be allowed setting aside the impugned judgment and decree to enable a complete adjudication with Sri. Sujeet S. Hiremath submitting that this Court must also provide for expeditious disposal of the suit. It is only in these peculiarities of the case that the impugned judgment and decree are interfered with restoring the suit for decision on merits with due opportunity to the parties.

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ORDER

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[A] The appeal and the cross-objection are

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allowed in part setting aside the impugned judgment and decree dated 05.10.2021 and remanding the suit under Order XXIII Rule 3A of CPC. The parties shall appear before the civil Court without further notice on 30.09.2024.

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NC: 2024:KHC-D:12642-DB RFA No. 100214 of 2021 C/W RFA.CROB No. 100029 of 2022

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[B] The appellants will be at liberty to file their written statement on such date or any other further date that the civil Court may allow but the civil Court may not grant more than a month from the date of first appearance.

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[C] The civil Court shall consider the suit consequent to this remand as a suit that is pending for over five years and dispose of the suit as expeditiously as possible in terms of the guidelines issued for disposal of such pending matters.

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The office shall draw 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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RSH / Ct:vh List No.: 1 Sl No.: 4

Anil S/O. Appanna Randewadi v. Kumari Sheetal D/O Anil Randewadi

Case brief

What is this about?

What did the court decide?

Anil S/O. Appanna Randewadi v. Kumari Sheetal D/O Anil Randewadi

Case brief

What is this about?

What did the court decide?

What the court decided

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