Disposed

Sri.Adiveppa Dundappa Katti v. Smt.Gangavva W/O Irappa Ganachari

Karnataka HC21 Aug 2024RFA/100401/2019

Case brief

AI extract

What is this about?

Appeal and cross-objection against a decree for partition giving the sister only 1/9th share after notional partition. The High Court set aside the decree to let the defendants' heirs prove a prior oral partition with the plaintiff's consent, on onerous terms including costs, while declaring the cross-objector entitled to a 1/3rd share subject to that finding.

What did the court decide?

Impugned judgment and decree set aside; suit restored for reconsideration on terms; cross-objector declared entitled to 1/3rd share subject to finding on prior partition; Rs.50,000 costs payable by ap

Sri.Adiveppa Dundappa Katti Vs Smt.Gangavva W/O Irappa Ganachari — Partition | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC-D:11896-DB RFA No. 100401 of 2019 C/W RFA.CROB No. 100011 of 2022

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21^ST DAY OF AUGUST, 2024 PRESENT

¶4

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

¶5

AND

¶6

THE HON'BLE MR. JUSTICE C M JOSHI

¶7

REGULAR FIRST APPEAL NO.100401/2019 C/W

¶8

REGULAR FIRST APPEAL CROSS OBJ NO. 100011/2022

¶9

IN RFA NO.100401 OF 2019:

¶10

BETWEEN:

¶11

SRI. ADIVEPPA DUNDAPPA KATTI DECEASED BY LRS,

¶12

SMT. SHANTAVVA W/O. SHIVALINGAPPA SANKADAL, AGE: 51 YEARS, OCC: HOUSEHOLD WORK, R/O: PATTIHAL K.S., TQ: BAILHONGAL, DIST: BELAGAVI-590001.

¶13

Digitally signed by VINAYAKA B V

¶14

Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD Date: 2024.08.24 10:32:25 +0530

¶15

SMT. PARAWWA, W/O. MADIVALAPPA HALAPPAGOUDAR, AGE: 49 YEARS, OCC: HOUSEHOLD, R/O: TADKOD, TQ: BAILHONGAL, DIST: BELAGAVI-590001.

¶16

SMT. TANGEWWA W/O. NIRANJAN TUMMARGUDDI, AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O: MATTIKOPPA, TQ: BAILHONGAL, DIST: BELAGAVI-590001.

¶17

SRI. DUNDAPPA ADIVEPPA KATTI AGE: 47 YEARS, OCC: AGRICULTURE, R/O: M.K.HUBALLI, TQ: BAILHONGAL, DIST: BELAGAVI-590001.

¶18

SRI. KASHAWWA W/O. IRAPPA TUMMARGUDDI, AGE: 46 YEARS, OCC: HOUSEHOLD, R/O: MATTIKOPPA, TQ: BAILHONGAL, DIST: BELAGAVI-590001.

¶19

2 - NC: 2024:KHC-D:11896-DB RFA No. 100401 of 2019 C/W RFA.CROB No. 100011 of 2022

¶20

SRI. IRAPPA ADIVEPPA KATTI, AGE: 45 YEARS, OCC: AGRICULTURE, R/O: M.K.HUBALLI, TQ: BAILHONGAL, DIST: BELAGAVI-590001.

¶21

SRI. ULAVEPPA ADIVEPPA KATTI, AGE: 44 YEARS, OCC: AGRICULTURE, R/O: M.K.HUBALLI, TQ: BAILHONGAL, DIST: BELAGAVI-590001.

¶22

SRI. BASAPPA ADIVEPPA KATTI, AGE: 43 YEARS, OCC: AGRICULTURE, R/O: M.K.HUBALLI, TQ: BAILHONGAL, DIST: BELAGAVI-590001.

¶23

SMT. MAHADEVI W/O. BASAVARAJ CHAPAGAV, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, R/O: BADALA ANKALAGI, TQ: BELAGAVI, DIST: BELAGAVI-590001.

¶24

SRI. KALLAPPA DUNDAPPA KATTI, SINCE DECEASED BY HIS LR’s.,

¶25

SMT. BASAVVA W/O. KALLAPPA KATTI, AGE: 63 YEARS, OCC: HOUSEHOLD WORK, R/O: M.K.HUBALLI, TQ: BAILHONGAL, DIST: BELAGAVI-590001.

¶26

SRI. IRAPPA KALLAPPA KATTI, AGE: 43 YEARS, OCC: AGRICULTURE, R/O: M.K.HUBALLI, TQ: BAILHONGAL, DIST: BELAGAVI-590001.

¶27

SMT. IRAVVA W/O. YALLAPPA KANOJI, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, R/O: NUGANATTI, TQ: GOKAK, DIST: BELAGAVI-590001.

¶28

SMT. KASTURI W/O. DUNDAPPA GAZACHARI, AGE: 41 YEARS, OCC: HOUSEHOLD WORK, R/O: M MK HUBALLI, TQ: BAILHONGAL, DIST: BELAGAVI-590001.

¶29

3 - NC: 2024:KHC-D:11896-DB RFA No. 100401 of 2019 C/W RFA.CROB No. 100011 of 2022

¶30

SRI. MAHANTESH KALLAPPA KATTI, AGE: 40 YEARS, OCC: AGRICULTURE, R/O: M.K.HUBALLI, TQ: BAILHONGAL, DIST: BELAGAVI-590001.

¶31

NEELAWWA W/O. MALLAPPA YENAGI, AGE: 39 YEARS, OCC: HOUSEHOLD WORK, R/O: NAYANAGAR, TQ: BAILHONGAL, DIST: BELAGAVI-590001.

¶32

APPELLANTS

¶33

(BY SRI. ANIL KALE, ADVOCATE)

¶34

AND:

¶35

SMT. GANGAVVA W/O. IRAPPA GANACHARI AGE: 78 YEARS, OCC: HOUSEHOLD WORK, R/O: M.K. HUBBALLI, NOW AT MARIHAL, TQ: BAILHONGAL, DIST: BELAGAVI-590001.

¶36

RESPONDENT

¶37

(BY SRI. VITTHAL S.TELI, ADVOCATE)

¶38

THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W SEC.96 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 22.4.2019 PASSED IN O.S.NO.18/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, BAILHONGAL, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION & ETC.

¶39

IN RFA CROB NO.100011 OF 2022:

¶40

BETWEEN:

¶41

GANGAVVA W/O. IRAPPA GANACHARI AGE: 80 YEARS, OCC: HOUSEHOLD WORK, R/O: M.K.HUBBALLI, NOW AT. MARIHAL, TQ: BAILHONGAL, DIST: BELAGAVI.

¶42

CORSS-OBJECTOR

¶43

(BY SRI. VITTHAL S. TELI, ADVOCATE)

¶44

AND:

¶45

ADIVEAPPA DUNDAPPA KATTI SINCE DECEASED BY LR’s.,

¶46

4 - NC: 2024:KHC-D:11896-DB RFA No. 100401 of 2019 C/W RFA.CROB No. 100011 of 2022

¶47

SMT. SHANTAVVA, W/O. SHIVALINGAPPA SANKADAL, AGE: 53 YEARS, OCC: HOUSEHOLD WORK, R/O: PATTIHAL K.S., TQ: BAILHONGAL, DIST: BELAGAVI-591104.

¶48

SMT. PARAWWA, W/O. MADIVALAPPA HALAPPAGOUDAR, AGE: 51 YEARS, OCC: HOUSEHOLD WORK, R/O: TADKOD, TQ: DHARWAD, DIST: DHARWAD.

¶49

SMT. TANGEWWA, W/O. NIRANJAN TUMMARAGUDDI, AGE: 50 YEARS, OCC: HOUSEHOLD WORK, R/O: MATTIKOPPA, TQ: BAILHONGAL, DIST: BELAGAVI-591147.

¶50

SHRI. DUNDAPPA ADIVEPPA KATTI, AGE: 49 YEARS, OCC: AGRICULTURE, R/O. M.K.HUBBALLI, TQ: BAILHONGAL, DIST: BELAGAVI-591118.

¶51

SMT. KASHAWWA W/O. IRAPPA TUMMARGUDDI, AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O. MATTIKOPPA, TQ: BAILHONGAL, DIST: BELAGAVI-591147.

¶52

SHRI. IRAPPA ADIVEPPA KATTI, AGE: 47 YEARS, OCC: AGRICULTURE, R/O: M.K.HUBBALLI, TQ: BAILHONGAL, DIST: BELAGAVI-591118.

¶53

SHRI. ULAVEPPA ADIVEPPA KATTI, AGE: 46 YEARS, OCC: AGRICULTURE, R/O: M.K.HUBBALLI, TQ: BAILHONGAL, DIST: BELAGAVI-591118.

¶54

SHRI. BASAPPA ADIVEPPA KATTI, AGE: 45 YEARS, OCC: AGRICULTURE, R/O. M.K.HUBBALLI, TQ: BAILHONGAL, DIST: BELAGAVI-591118.

¶55

5 - NC: 2024:KHC-D:11896-DB RFA No. 100401 of 2019 C/W RFA.CROB No. 100011 of 2022

¶56

SMT. MAHADEVI W/O. BASAVARAJ CHAPAGAV, AGE: 44 YEARS, OCC: HOUSEHOLD WORK, R/O: BADALA ANKALAGI, TQ: BELAGAVI, DIST: BELAGAVI-591101.

¶57

KALLAPPA DUNDAPPA KATTI, DECEASED BY LR’s.,

¶58

SMT. BASAVVA W/O. KALLAPPA KATTI, AGE: 65 YEARS, OCC: HOUSEHOLD WORK, R/O: M.K.HUBBALI, TQ: BAILHONGAL, DIST: BELAGAVI-591118.

¶59

SHRI. IRAPPA KALLAPPA KATTI, AGE: 45 YEARS, OCC: AGRICULTURE, R/O: M.K.HUBBALI, TQ: BAILHONGAL, DIST: BELAGAVI-591118.

¶60

SMT. IRAVVA W/O. YALLAPPA KANOJI, AGE: 44 YEARS, OCC: HOUSEHOLD, R/O: NUGGANATTI, TQ: GOKAK, DIST: BELAGAVI-591307.

¶61

SMT. KASTURI, W/O. DUNDAPPA GANACHARI, (WRONGLY SHOWN IN JUDGMENT AS GAZACHARI), AGE: 43 YEARS, OCC: HOUSEHOLD WORK, R/O: M.K.HUBBALLI, TQ: BAILHONGAL, DIST: BELAGAVI-591118.

¶62

SHRI. MAHANTESH KALLAPPA KATTI, AGE: 42 YEARS, OCC: AGRICULTURE, R/O: M.K.HUBBALLI, TQ: BAILHONGAL, DIST: BELAGAVI-591118.

¶63

SMT. NEELAVVA W/O. MALLAPPA YENGAL, AGE: 41 YEARS, OCC: HOUSEHOLD, R/O: NAYANAGAR, TQ: BAILHONGAL, DIST: BELAGAVI-591102.

¶64

RESPONDENTS

¶65

(BY SRI. ANIL KALE, ADVOCATE)

¶66

6 - NC: 2024:KHC-D:11896-DB RFA No. 100401 of 2019 C/W RFA.CROB No. 100011 of 2022

¶67

THIS RFA CROSS OBJECTION IN RFA NO.100401/2020 IS FILED UNDER ORDER 41 RULE 22 OF C.P.C., 1908, AGAINST THE JUDGMENT AND DECREE DATED 22.04.2019 PASSED IN O.S.NO.18/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, BAILHONGAL, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION & ETC.

¶68

THIS APPEAL AND RFA CROSS OBJECTION, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶69

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

¶70

THE HON'BLE MR. JUSTICE C M JOSHI

¶71

ORAL JUDGMENT

¶72

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

¶73

This appeal and the cross objection are filed calling in question the judgment and decree for partition when there is no dispute about the relationship between the parties and the nature of the suit schedule properties but on the respective limited grounds. The appellants in R.F.A. No. 100401/2019 are the legal representatives of the two defendants, who are the brothers of the Cross-objector - the plaintiff. The original parties to the suit are two brothers [Sri Adiveppa Dundappa Katti and Sri Kallappa Dundappa Katti] and their sister with the sister being the plaintiff.

¶74

¶75

NC: 2024:KHC-D:11896-DB RFA No. 100401 of 2019 C/W RFA.CROB No. 100011 of 2022

¶76

The impugned judgment and decree is dated 02.04.2019 in O.S. No. 18/2016 on the file of the Senior Civil Judge, Bailhongal [for short, the ‘civil Court’ ]. The appellants assert that they are aggrieved because they did not have due opportunity to contest the suit, and the Cross Cbjector is aggrieved because she is given only 1/9^th share after notional partition instead of equal share with her two deceased brothers, Sri Adiveppa Dundappa Katti and Sri Kallappa Dundappa Katti.

¶77

Sri Anil Kale, the learned counsel for the appellants, is categorical in his submission that unless the appellants establish a prior oral partition between the two brothers with the consent of the sister [the Cross Objector], the appellants must concede 1/3^rd equal share in favour of the Cross Objector. This Court must observe that this is indisputable given the decision of the Apex Court in the case

¶78

of Vineeta Sharma V. Rakesh Sharma & Ors.¹ . Sri Anil

¶79

Kale next submits that if some of the appellants were placed ex-parte, some of the appellants were represented but did 1 AIR 2020 SC 3717

¶80

8 - NC: 2024:KHC-D:11896-DB RFA No. 100401 of 2019 C/W RFA.CROB No. 100011 of 2022

¶81

not file written statement and the only fifteenth appellant [the defendant no. 2(f)] has filed written statement, and that even she has not participated in the proceedings. Sri Vitthal S. Teli, the learned counsel for the Cross- Objector, without disputing the same points out that the fifteenth appellant has cross examined the Cross-Objector’s witnesses while admitting that she has not lead evidence.

¶82

The appellants’ proposed defense, in continuation of the defense taken by the fifteenth appellant, is that there was a prior partition between the two brothers, Sri Adiveppa Dundappa Katti and Sri Kallappa Dundappa Katti with the consent of the Cross Objector. This Court, only in the peculiarities of this case with the appellants residing at different places, they being represented by different counsels in the suit but coming together now to be represented by a common learned counsel and even the fifteenth appellant not leading evidence, is of the considered view that the appellants must have an opportunity to vindicate the defense of prior oral partition with the consent of the Cross- Objector with all due opportunities to her.

¶83

9 - NC: 2024:KHC-D:11896-DB RFA No. 100401 of 2019 C/W RFA.CROB No. 100011 of 2022

¶84

The impugned judgment and decree cannot

¶85

be called perverse given that the material circumstances are beyond dispute and the appellants have not participated in the proceedings offering substantiated defense, but to extend a due opportunity facilitating a complete and effective adjudication, this Court has to consider setting aside the impugned judgment and decree and restoring the suit for reconsideration. This Court is of the considered view that the appellants must have another opportunity. However, this opportunity must be on terms that are onerous on the appellants. This Court, given the afore circumstances and that the Cross-objector’s age [she is an octogenarian], is of the considered view such conditions must be as follows.

¶86

[i] The appellants must without further notice appear before the civil Court either through a common counsel or otherwise, but their appearance must be on the first date now fixed lest the suit be decreed on the very first date as now indicated in the light of submission before this Court that if the

¶87

10 - NC: 2024:KHC-D:11896-DB RFA No. 100401 of 2019 C/W RFA.CROB No. 100011 of 2022

¶88

appellants cannot prove oral partition with the Cross-objector’s consent, she would be entitled for 1/3^rd share in the suit schedule properties.

¶89

[ii] The appellants together must pay the cross objector a cost of Rs.50,000/-, and this cost is imposed factoring that there are fifteen appellants. This cost shall be paid by the appellants to the Cross- Objector without fail on the first date of appearance as now indicated. Any failure in this regard shall constitute a default resulting in the suit being decreed for the reason as aforesaid.

¶90

[iii] The appellants must not only complete the pleadings and pay cost in terms of the directions as above, they must also cooperate with the civil Court without seeking

¶91

11 -

¶92

NC: 2024:KHC-D:11896-DB RFA No. 100401 of 2019 C/W RFA.CROB No. 100011 of 2022

¶93

unnecessary adjournments for closure of the suit on or before 20.12.2024.

¶94

ORDER

¶95

[a] The appeal is disposed of setting aside the civil Court’s impugned judgment and decree dated 02.04.2019 in O.S. No. 18/2016 restoring suit for reconsideration on terms in para 5 hereabove, but the cross objection is favoured declaring that the cross-objector would be entitled to 1/3^rd share in the suit schedule properties with the legal representatives of the two deceased brothers taking the other 2/3^rd share inter se and subject to the civil Court’s finding on the appellants’ proposed defense of prior partition with the cross objector.

¶96