Partly allowed

Shri. Balappa @ Balappa S/O Pandappa Murteppanavar v. Smt. Annavva W/O Balappa @ Balappa Murteppanavar

Karnataka HC22 Aug 2024RFA/100475/2018

Case brief

AI extract

What is this about?

This appeal and cross objection against a partition suit decree challenged the lower court's finding on family relations and oral partition. The High Court accepted evidence of marriage and children but found the lower court erred in accepting an oral relinquishment document without registration under Section 17 of the Registration Act. The decision modified the share distribution to accord with i

What did the court decide?

The appeal and cross objection were disposed of by modifying the impugned judgment, declaring specific shares for appellants and respondents in various properties based on intestate succession princip

Shri. Balappa @ Balappa S/O Pandappa Murteppanavar Vs Smt… — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:11998-DB RFA No. 100475 of 2018 C/W RFA.CROB No. 100003 of 2019

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 22^ND DAY OF AUGUST, 2024

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PRESENT

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

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THE HON'BLE MR. JUSTICE C M JOSHI

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REGULAR FIRST APPEAL NO. 100475 OF 2018 (PAR/POS)

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C/W

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RFA CROSS OBJ NO. 100003 OF 2019

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IN RFA NO. 100475/2018

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BETWEEN:

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SHRI. BALAPPA @ BALAPPA S/O. PANDAPPA MURTEPPANAVAR AGE: 53 YEARS, OCC: AGRICULTURE, R/O: BATAKURKI VILLAGE,

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TQ: RAMDURG, DIST: BELAGAVI-591123.

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SHRI.HANAMANTH

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Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA

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S/O. PANDAPPA MURTEPPANAVAR, AGE: 51 YEARS, OCC: AGRICULTURE, R/O: BATAKURKI, TQ: RAMDURG, DIST: BELAGAVI-591123.

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SMT.KASTUREVVA D/O. PANDAPPA MURTEPPANAVAR, AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O: BATAKURKI VILLAGE, TQ: RAMDURG, DIST: BELAGAVI-591123.

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2 - NC: 2024:KHC-D:11998-DB RFA No. 100475 of 2018 C/W RFA.CROB No. 100003 of 2019

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SMT.NAGAVVA W/O. BASAPPA SANNABASAPPANAVAR, AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O: BATAKURKI VILLAGE, TQ: RAMDURG, DIST: BELAGAVI-591123.

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…APPELLANTS

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(BY SRI. SANTOSH B. RAWOOT, ADVOCATE)

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AND:

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SMT. ANNAVVA W/O. BALAPPA @ BALAPPA MURTEPPANAVAR AGE: 50 YEARS, OCC: AGRICULTURE, R/O: BATAKURKI VILLAGE, TQ: RAMDURG, DIST: BELAGAVI-591123 AND DEVANAL, TQ AND DIST: BAGALKOT-587204.

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SMT.MAITRAVVA W/O. HANAMANT SANNABASAPPANAVAR, AGE: 25 YEARS, OCC: AGRICULTURE, R/O: DEVANAL, TQ AND DIST: BAGALKOT-587204.

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SMT.SUNANDAVVA W/O. RAMANNA SANNABASAPPANAVAR, AGE: 27 YEARS, OCC: AGRICULTURE, R/O: DEVANAL, TQ AND DIST: BAGALKOT-587204.

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…RESPONDENTS

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(BY SRI. S.B. HEBBALLI, ADVOCATE)

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THIS REGULAR FIRST APPEAL FILED UNDER SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE

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3 - NC: 2024:KHC-D:11998-DB RFA No. 100475 of 2018 C/W RFA.CROB No. 100003 of 2019

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DATED:29.09.2018 PASSED IN O.S.NO.75/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE RAMDURG, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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IN RFA CROB NO. 100003/2019

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BETWEEN:

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SMT. ANNAVVA W/O. BALAPPA @ BALAPPA MURTEPPANAVAR, AGED 49 YEARS, OCC:AGRICULTURE, R/O: BATAKURKI, TAL:RAMDURG, DIST:BELAGAVI-591151.

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SMT. MAITRAVVA W/O. HANAMANT SANNABASAPPANAVAR, AGE:26 YEARS, OCC:AGRICULTURE, R/O: DEVANAL, TAL:BAGALKOT, DIST:BAGALKOT-587101.

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SMT. SUNANDAVVA W/O. RAMANNA SANNABASAPPANAVAR, AGE:28 YEARS, OCC:AGRICULTURE, R/O: DEVANAL, TAL:BAGALKOT, DIST:BAGALKOT-587101.

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…CROSS OBJECTORS

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(BY SRI. S.B. HEBBALLI, ADVOCATE)

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AND:

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BALAPPA @ BALAPPA S/O. PANDAPPA MURTEPPANAVAR AGED 54 YEARS, OCC:AGRICULTURE, R/O: BATAKURKI, TAL: RAMDURG, DIST:BELAGAVI-591151.

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4 - NC: 2024:KHC-D:11998-DB RFA No. 100475 of 2018 C/W RFA.CROB No. 100003 of 2019

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HANAMANT S/O. PANDAPPA MURTEPPANAVAR AGED 52 YEARS, OCC:AGRICULTURE, R/O: BATAKURKI, TAL:RAMDURG, DIST:BELAGAVI-591151.

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SMT. KASTUREVVA D/O. PANDAPPA MURTEPPANAVAR AGED 43 YEARS, OCC:HOUSEHOLD, R/O: BATAKURKI, TAL:RAMDURG, DIST:BELAGAVI-591151.

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SMT. NAGAVVA W/O. BASAPPA SANNABASAPPANAVAR AGED 55 YEARS, OCC:HOUSEHOLD WORK, R/O: BATAKURKI, TAL:RAMDURG, DIST:BELAGAVI-591151.

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…RESPONDENTS

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(BY SRI. SANTOSH B. RAWOOT, ADVOCATE)

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THIS RFA. CROSS OBJECTION IN RFA NO.100475/2018 FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 29.09.2018 PASSED IN O.S.NO.75/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, RAMDURG, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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

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

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5 - NC: 2024:KHC-D:11998-DB RFA No. 100475 of 2018 C/W RFA.CROB No. 100003 of 2019

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ORAL JUDGMENT

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

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This appeal and cross objection are against the judgment and decree dated 29.09.2018 on the file of the Senior Civil Judge, Ramdurg (for short ‘the civil Court’ ). This suit in O.S. No.75/2016 is filed by the cross-objectors for partition against the appellants. The Civil Court, by the impugned judgment and decree, has decreed the suit in part:

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[i] declaring that the cross-objectors will be entitled for 1/4^th share in the land measuring 4 acres 20 guntas in R.S. No.36/2/1B of Batakurki village, Ramdurg taluk [Item No.2 of the Plaint Schedule].

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[ii] dismissing the claim for declaration of share in, and partition by metes and bounds of, the lands in [a] R.S. No.36/2/1A measuring 4 acres 20 guntas, [b] in R.S. No.3/1D measuring

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2 acres 37 guntas and [c] in R.S. No.3/1C measuring 2 acres 17 guntas of Batakurki

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village, Ramdurg taluk [Item Nos.1, 3 and 4 of the Plaint Schedule].

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The cross-objectors contend that the first

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amongst them is the legally wedded wife of the first appellant and other cross-objectors are his children and that the suit schedule properties are joint family properties in which they are entitled for an equal share. The appellants on the other hand have filed written statement denying the cross-objectors’ relationship with the first appellant. The appellants’ written statement is rather brief and is essentially focused on denying the relationship.

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The civil Court in the light of the rival submissions has framed the Issues that require the Crossobjectors to prove their relationship with the first appellant, that the suit schedule properties are ancestral properties, and that they are in joint possession of these properties with the appellants. The appellants are required to prove that the fourth amongst them [Smt. Nagavva] has relinquished all her interest in the suit schedule properties.

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The cross-objectors to establish their case have

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examined the first cross-objector as PW1 and Sri Sangappa Tammannappa Kalavagol as PW2. This witness [Sri Sangappa Tammannappa Kalavagol] has stated that he has attended the marriage between the first cross-objector and the first appellant and the second and third cross-objectors are the children of the first cross-objector and the first appellant. The second and the first appellants have examined themselves as DW1 and DW2. As regards the documentary evidence, the cross-objectors have produced Record of Rights for the suit schedule properties and mutation extracts in M.E. No.3733 and M.E. No.4053 [Exs.P1 to P6], the School Studying Certificates [Exs.P7 and P8]¹ , the Voters lists [Exs.P9 and P10] and the first crossobjector’s Aadhar card and Election card [Exs.P11 and P12].

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The civil Court, while examining the oral and documentary evidence, has opined that the cross-objectors are able to demonstrate that the first cross-objector and the

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1 To demonstrate that in the academic records, the second and third cross-objectors are shown to be the children of the first appellant.

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8 - NC: 2024:KHC-D:11998-DB RFA No. 100475 of 2018 C/W RFA.CROB No. 100003 of 2019

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first appellant are married and that the second and third cross-objectors are born to them, that there was a partition during the lifetime of Sri Pandappa Balappa Murteppanavar and that in such partition.

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Sri. Pandappa Balappa Murteppanavar retained for himself lands in R.S. Nos.3/1C, 3/1D of Batakurki village [Item Nos.3 and 4 of the Plaint Schedule].

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the first appellant is allotted land measuring 4 acres 20 guntas in Sy. No.36/2/1B of Batakurki village [Item No.2 of the Plaint Schedule].

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the second defendant is allotted land measuring 4 acres 20 guntas in R.S. No.36/2/1A of Batakurki village [Item No.1 of the Plaint Schedule].

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The civil Court has also opined that Sri Pandappa Balappa Murteppanavar has relinquished his rights in the agricultural lands retained by him in favour of the third appellant. The civil Court, based on these conclusions, has essentially opined that the cross-objectors can take a share

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9 - NC: 2024:KHC-D:11998-DB RFA No. 100475 of 2018 C/W RFA.CROB No. 100003 of 2019

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[1/4^th each] along with the first appellant in the land in R.S. No.36/2/1B and they cannot assert any interest in the other properties.

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Sri Santosh B. Rawoot, the learned counsel for the appellants, submits that this Court must interfere with the civil Court’s finding on the cross-objectors’ relationship with the first appellant and that if there is interference, it would follow inevitably that cross-objectors would be strangers to the family and therefore, not entitled to any share. In this regard, the learned counsel submits that the first cross-objector in her cross-examination is categorical in stating that she never resided in Batakurki village, that she has always resided at her parental home in Devanal village, Bagalkote taluk and that she has no relationship with the first appellant.

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Sri S. B. Hebballi, the learned counsel for the cross-objectors, while refuting the submission as canvassed by Sri Santosh B. Rawoot and relying upon the documentary evidence, submits that the first cross-objector’s evidence

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10 - NC: 2024:KHC-D:11998-DB RFA No. 100475 of 2018 C/W RFA.CROB No. 100003 of 2019

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must be read in its entirety and when so read it is obvious that there is no admission as is argued by Sri Santosh B. Rawoot. The learned counsel also submits that this Court must interfere with the civil Court opining that there is partition within the family and later relinquishment by Sri Pandappa Balappa Murteppanavar in favour of the third appellant emphasizing that the appellants have not set up the plea of oral partition in the written statement inasmuch as the written statement is essentially to deny the relationship between the cross-objectors and the first appellant.

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In the light of the rival submissions, the questions for consideration would be:

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[a] Whether this Court can opine that the civil Court’s conclusion on the cross-objectors’ relationship with the appellants suffers from any irregularity or perversity.

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[b] Whether the civil Court is justified in its opinion that there is a prior oral partition and

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11 - NC: 2024:KHC-D:11998-DB RFA No. 100475 of 2018 C/W RFA.CROB No. 100003 of 2019

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a subsequent relinquishment of all interest in two of the suit schedule properties by Sri Pandappa Balappa Murteppanavar in favour of the third appellant.

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This Court must at the very outset observe that

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the cross-objectors rely upon the ocular evidence of the first appellant and the evidence of PW2. The witness [PW 2] is categorical that he has participated in the first crossobjector’s wedding to the first appellant. This Court, on going through his evidence, must opine that his evidence is not rendered tenuous in any manner. The first crossobjector, as could be seen from her deposition, is not an educated lady, and in fact, she has affixed her left thumb mark [ LTM ]. Therefore, her evidence will have to be read in this background. Indeed, she has stated in her crossexamination that she has been staying in Devanal village, Bagalkote taluk and she has not resided in Batakurki but in the same breath she clarifies on her own volition that she has not lived with the first appellant for thirty years.

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12 - NC: 2024:KHC-D:11998-DB RFA No. 100475 of 2018 C/W RFA.CROB No. 100003 of 2019

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This Court must opine that if Sri Santosh B. Rawoot’s argument is to be accepted, it would amount to reading these witnesses’ testimony selectively ignoring the context. The evidence of these two witnesses [the first crossobjector and PW2] is strongly corroborated by the documentary evidence viz., the voters’ list of the year 1988 and the school study certificates. The voters’ list Ex.P9 [ of the year 1988 ], as rightly appreciated by the civil Court, demonstrates that the first cross-objector was staying not only with the first and the second appellants but also with the parents-in-law. This is at an undisputed point of time, and the school certificates [Exs.P7 and P8] demonstrate that the second and the third cross-objectors are born respectively in the year 1978 and in the year 1981 and the first appellant is mentioned as the father. The oral and documentary evidence are overwhelming.

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This Court must also refer to the first appellant’s conduct when he is in the witness box as recorded by the civil Court. The learned counsel for the cross-objectors has invited his attention to the presence of the first cross-

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objector asking him to identify her, and the first appellant has refused to even look at her. The demeanor of a witness, as of repeated, tells its own story. In the present case, with the overwhelming evidence as afore, the first appellant’s demeanor completely belies his own evidence that there is no relationship with the cross-objectors. In the light of the afore discussion, this Court cannot opine that the civil Court’s finding as regards the relationship between the cross-objectors and the first appellant does not suffer from any infirmity justifying interference.

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The appellants have not produced any document, and in fact, they are also silent in their pleadings about oral partition. It is the cross-objectors who have brought for the mutation extract in M.E. No.3733 dated 10.10.1984 and M.E. No.4053 [Exs.P5 and P6] to contend that there is partition at the first instance between the father and the two sons with the fourth appellant giving up all her interest in the suit schedule properties in the year 1984 and the subsequent relinquishment in terms of M.E. No.4053 dated 11.10.1988 to contend that these are not registered

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transaction and therefore, no sanctity could be attached to them.

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However, this Court must observe that it is trite that it is open for Hindus amongst themselves to enter into an oral arrangement for settlement of mutual interest in the subject properties. In this regard, this Court must refer to the decision of the Hon’ble Apex Court in the case of Kale and others vs. Deputy Director of Consolidation and others² . Further, even according to the cross-objectors, the first cross-objector and the first appellant separated more than thirty years [i.e., during the time the revenue entries are made] and they must be aware of the transactions that could be affected within the family. This Court, while appreciating the evidence on the scale of preponderance and with the permissibility of an oral partition amongst Hindus, cannot opine that the civil Court has erred in accepting M.E. No.3733 to conclude that there was an oral partition in which the father [ Pandappa Balappa Murteppanavar ] has

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2 (1976) 3 SCC 119

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retained item Nos.3 and 4 Plaint Schedule with the first appellant and the second appellant taking the other two properties and the fourth appellant giving up her interest in all these properties.

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As regards the next transaction which is in the year 1988, it is seen from the mutation extract that it reads that the father is relinquishing all his interest in favour of the third appellant because she was unmarried as of that day and he has relinquished his interest in the property with the consent of his two sons and the other daughter, the fourth appellant. However, there is nothing brought on record to justify that there was any consent as is stated and this would be a significant factor because any relinquishment, unlike adjustment of rights in an oral partition, would require a document registered as contemplated under the provisions of Section 17 of the Indian Registration Act, 1908. The relinquishment by Sri Pandappa Balappa Murteppanavar or by the third appellant, and for that matter even by the first appellant and second appellant is not according to the law, the third appellant

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cannot claim any exclusive interest. Sri Pandappa Balappa Murteppanavar has admittedly died intestate and therefore, these properties must be partitioned by metes and bounds in stripes amongst his children. If there is such division of the properties retained by the father by Sri Pandappa Balappa Murteppanavar, the appellants will take equal 1/4^th share in item Nos.3 and 4 of Plaint Schedule.

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The first and the second cross-objectors will be entitled to 1/3^rd equal share each with the first appellant in his 1/4^th share in these properties and for 1/3^rd share in the land measuring 4 acres 20 guntas in Sy. No.36/2/1B of Batakurki village and the first cross-objector will not be entitled for any share. It is obvious from the above discussion that the civil Court has erred in its conclusion and has overlooked material circumstances in arriving at conclusion in declaring that the cross-objectors are entitled for 1/4^th share each only in the land in Sy. No.36/2/1B of Batakurki village. Therefore, the second question must be

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17 - NC: 2024:KHC-D:11998-DB RFA No. 100475 of 2018 C/W RFA.CROB No. 100003 of 2019

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answered in the affirmative with appropriate modification of the impugned judgment and decree. Hence, the following:

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ORDER

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[a] The appeal and the cross-objection are disposed off modifying the civil Court’s impugned judgment and decree dated 29.09.2018 declaring that the first and the second cross-objectors would be entitled for 1/3^rd equal share each with the first appellant in the land measuring 4 acres 20 guntas in R.S. No.36/2/1B of Batakurki village [ suit schedule item No.2 property ].

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[b] The appellants would be entitled for 1/4^th share each in the lands measuring 2 acres 37 guntas in R.S. No.3/1D and 2 acres 17 guntas in R.S. No.3/1C of Batakurki village, Ramdurg taluk [ suit schedule item No.3 and 4 properties ] with the second and third crossobjectors being entitled to equal 1/3^rd share

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in the first appellant’s 1/4^th share in these two properties.

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The office is directed to 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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HMB- upto para 6 RSH- Para 7 to end ct-cmu/ LIST NO.: 1 SL NO.: 27

Shri. Balappa @ Balappa S/O Pandappa Murteppanavar v. Smt. Annavva W/O Balappa @ Balappa Murteppanavar

Case brief

What is this about?

What did the court decide?

Shri. Balappa @ Balappa S/O Pandappa Murteppanavar v. Smt. Annavva W/O Balappa @ Balappa Murteppanavar

Case brief

What is this about?

What did the court decide?

What the court decided

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