Partly allowed

H Nagaraj S/O H Lingappa and Earamma v. H Lingappa S/O H Basappa Dead by His Lrs.

Karnataka HC17 Sept 2024RFA/100578/2022

Case brief

AI extract

What is this about?

This appeal against a partition decree was allowed in part. The court held that while some properties were not joint family property, those in the name of the deceased Defendant No.1 devolve as his estate and are liable for partition. The wife of the deceased son was granted a share. Additional properties falling under the deceased's estate were ordered partitioned.

What did the court decide?

Appeal allowed in part. Properties in the name of the deceased Defendant No.1 included in the partition along with those previously decreed as ancestral.

H Nagaraj S/O H Lingappa and Earamma Vs H Lingappa S/O H Basappa… — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:13191-DB RFA No. 100578 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 17^TH 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. 100578 OF 2022 (PAR/POS)

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BETWEEN:

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H. NAGARAJ S/O. H. LINGAPPA AND EARAMMA AGE. 49 YEARS, OCCUP. WORKING AS THE JUNIOR HEALTH INSPECTOR PHC, R/O. KOLAGAL VILLAGE, TQ. AND DIST. BALLARI 583102.

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…APPELLANT

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(BY SRI. N.H.PATIL, ADVOCATE)

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Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA

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AND:

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H. LINGAPPA

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S/O. H. BASAPPA DEAD BY HIS LRS. 1. H. EARAMMA W/O. H. LINGAPPA AGE. 71 YEARS, OCCUP. HOUSEHOLD, R/O. GUTTIGANUR VILLAGE, BALLARI TALUK AND DISTRICT. 583113.

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H. VIRUPASHAPPA S/O. H. LINGAPPA AGE. 55 YEARS, OCCUP. HOUSEHOLD,

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R/O. GUTTIGANUR VILLAGE,

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BALLARI TALUK AND DISTRICT 583113.

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H. NEELAMMA D/O. H. LINGAPPA W/O. G JADEMURTHY AGE. 48 YEARS, OCCUP. HOUSEHOLD, R/O. GUTTIGANUR VILLAGE, BALLARI TALUK AND DISTRICT. 583113.

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THIMMAPPA

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S/O. H. LINGAPPA DEAD BY HIS LRS

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SMT. SUNITA W/O. H. THIMMAPPA. AGE. 44 YEARS, OCCUP. HOUSEHOLD, R/O. GUTTIGANUR VILLAGE, BALLARI TALUK AND DISTRICT. 583113.

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…RESPONDENTS

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(BY SRI. C.S. SHETTAR, AMICUS CURIAE)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 01.08.2022 PASSED IN O.S.NO.109/2018 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, BALLARI, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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

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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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NC: 2024:KHC-D:13191-DB RFA No. 100578 of 2022

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE C M JOSHI)

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Being aggrieved by the judgment in OS No.109/2018 dated 01.08.2022 by the learned I Addl. Senior Civil Judge at Ballari whereby the suit of the appellant-plaintiff came to be decreed only in respect of few of suit schedule properties, the plaintiff is before this Court in an appeal.

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The parties would be referred to as per their rank before the Trial Court for the sake of convenience.

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The factual matrix of the case of the appellant-plaintiff is as below:

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The plaintiff, the defendant Nos.3, 4 and husband of the defendant No.5 (Thimmappa) are the children born to the defendant No.1-Lingappa and defendant No.2-Eramma. The appellant-plaintiff contended that the suit schedule properties are the ancestral properties of the plaintiff and defendants and defendant No.1 being kartha of the family used to sell and purchase lands in the name of defendant No.2, who is his mother. The plaintiff stated that the joint

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family also acquired certain properties under the order of the Land Tribunal and the occupancy rights were granted. The members of the joint family were cordial and the plaintiff being a Government employee was not staying with the joint family due to his avocation. The family also acquired a good amount of gold and silver articles as per the schedule and has amassed wealth. It is contended that when the plaintiff sought for partition in the suit schedule properties, the efforts made by the plaintiff for amicable division was stalled for various reasons. Ultimately, a palupatti was drawn on 09.02.2017 which narrated the arrangement or settlement between the parties and the properties were divided as per schedules annexed to the plaint. It is contended that certain properties were also allotted to the share of Neelamma - 4^th defendant since she was a widow. It is stated that the movable properties were to be enjoyed by the defendant Nos.1 and 2 during their life time and after their demise, they would devolve upon the remaining parties. It is contended that the said palupatti dated 09.02.2017 was not acted upon and when questioned

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the defendants insisted that they are not interested to give properties to the plaintiff and they have picked up unnecessary and unwanted disputes and refused to give the share which was already allotted to the plaintiff under the said arrangement. They insisted the plaintiff to discharge the agricultural loans of the family to claim the properties and therefore, the said partition was not acted upon. The plaintiff also stated that from out of love and affection, the plaintiff is ready and willing to give up his share in respect of Schedule-‘A’, ‘F’ and ‘G’ properties in the plaint and they may enjoy the same till their life time. All the efforts made by the plaintiff fell on the deaf ears of the defendants and therefore, the plaintiff was constrained to file the suit for partition. The defendants also started their efforts to alienate certain properties and it also made the plaintiff to file the suit for partition. The plaintiff is seeking 1/4^th share in the plaint schedule properties.

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The defendants appeared on being summoned by the

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Trial Court and the defendant No.1 filed his written statement denying the plaint averments. The defendant

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No.1-Lingappa contended that the defendant Nos.1 to 3 being the absolute owners of the suit schedule properties, earned by their own efforts, they never inherited any ancestral properties. It was contended that all the properties are the self acquired properties of the defendant Nos.1 to 3 and plaintiff without proving the suit properties as the joint family properties, is not entitled for any partition. It was contended that the suit schedule properties were not the joint family properties; and neither plaintiff nor the defendant Nos.3 to 5 were in joint possession and enjoyment of the same. Therefore, he sought for dismissal of the suit.

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The defendant Nos.2 and 3 - Eramma and

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Virupakshappa filed their written statement wherein they reiterated the contention of the defendant No.1. The written statement of the defendant No.1 was also adopted by the defendant No.2 through a memo.

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On the basis of the pleadings, the Trial Court has framed the following issues:-

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1. Whether the plaintiff proves that suit schedule properties are the joint family properties?

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1. Whether defendants prove that suit schedule properties are the self acquired properties?

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1. Whether the plaintiff is entitled to the reliefs as claimed?

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1. What order or decree?

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Additional Issue

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1. Whether the defendant No.2 and 3 prove that suit Schedule properties have been self acquired

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properties as contended in W.S.?

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During the pendency of the suit, the defendant No.1 died and since all the legal heirs of the defendant No.1 were on record his name came to be deleted from the plaint. The plaintiff entered the witness box and deposed as PW.1 and Exhibits P.1 to P.47 were marked and received in the evidence. Defendant No.3-Virupakshappa entered witness box as DW-1 and D.1 to D.9 were marked in the evidence.

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After hearing the submissions from both the sides, the Trial Court has found that the plaintiff and defendant Nos.2, 3 and 4 are entitled for 1/4^th share in five of the suit

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schedule properties i.e. survey Nos.151A/2, 151A/1, 150, 58/A2a5, Survey No.262 and survey No.127 and 125/C. The claim in respect of the remaining properties was rejected by the Trial Court.

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Being aggrieved by the finding of the Trial Court, the plaintiff is before this Court in appeal. The plaintiff is assailing the judgment of the Trial Court contending that the Trial Court has failed to appreciate the documentary evidence placed on record by the appellant and it failed to appreciate the fact that the defendants had not produced any document to show that the suit schedule properties are the self acquired properties of the defendants. It also failed to appreciate that the defendant No.1 was also known as Anuwal Lingappa cannot be justified. In fact, none of the parties have disputed the same and therefore, the Trial Court erred in excluding the properties standing in the name of Anuwal Lingappa. It is contended that Trial Court committed error of law by not properly appreciating the facts and evidence and thereby it erred in decreeing the suit only in respect of few of the properties.

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Respondents have not appeared despite service of notice and therefore, the learned counsel Sri.C.S.Shetter is appointed as Amicus Curie to assist the Court in the matter. Trial Court records have been secured on admitting the appeal.

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The appellant-plaintiff has also filed an application seeking to produce certain additional documents in evidence under Order 41 Rule 27 of CPC on the ground that the Trial Court had discarded certain properties from being from being part of the decree on the ground that the record of rights produced was not legible.

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We have heard the arguments of learned counsel for the appellant and the learned Amicus Curie.

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It is trite law that though there is a presumption that Hindu joint family exists unless contrary is established, such presumption is not available to the fact that the properties standing in the name of any of the members of the family or Kartha are also the joint family properties or ancestral properties. The party asserting such properties are

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ancestral or joint family properties has to establish the same. The plaintiff has approached the Court contending that the suit schedule properties are the joint family properties of himself and the defendants and therefore, he is entitled for partition in the same. Therefore, the burden of proving the fact that the suit schedule properties are the ancestral or joint family properties is squarely on the plaintiff, particularly when the defendant Nos.1 to 3 have asserted that suit schedule properties are their self acquired properties. It is in the light of the above propositions of law, the facts involved in the present case need to be appreciated.

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The Trial Court in the impugned judgment notes and appreciates the documents which are produced by the plaintiff. It also concludes that both the parties have stated that the partition by way of palupatti as per Ex.P.38 is not acted upon and therefore, the properties are available for partition. However, the Trial Court observes that the plaintiff has not produced the documents in respect of suit schedule properties except a few of them for which the partition is ordered, to show that they are ancestral and the joint family

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properties. In paragraph-20, it notes that the documents produced by the plaintiff do not establish that the properties are inherited by defendant No.1 or that all properties were the joint family acquisitions. On that ground, the Trial Court has ordered for partition of few of the properties rejecting the claim of the plaintiff in respect of the remaining properties.

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Learned counsel appearing for the appellant would submit that the defendant No. 1 had sufficient income from the ancestral properties and he acquired the remaining properties from such income. However, he is unable to point to any evidence in this regard. He submit tht after demise of the defendant No. 1, the properties standing in his name have to devolve on all the legal heirs.

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The learned Amicus Curiae in his submissions has invited our attention to the suit schedule properties vis-à-vis the documents concerning the same. The plaint describes the suit schedule properties as is depicted in the palupatti which is at Ex.P.38. Therefore, it is to be noted that the

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schedule to the plaint is as mentioned in the palupatti but it does not depict the manner of acquisition of those properties by the defendant Nos.1 to 3. Hence, the learned Amicus Curiae has submitted that the properties which had fallen to the share of the defendant No.1 in the alleged palupatti are available for partition, owing to his death during the pendency of the suit and admission by the defendant No.3 that the defendant No.1 died intestate. Therefore, he has submitted that the properties standing in the name of defendant No.1 are liable to be partitioned among the parties to the suit.

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The suit schedule properties, revenue and other records pertaining to such other properties and also the mode of acquisition as depicted in such documents is listed

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in the following table:-

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Sl. No.	Suit Sch edul e.	Sy. No.	Documen t Ex No.	Standing in the name of	Remarks
1.	A.1a	37	P3-Form No.24	Defendant No. 2	Source of acquisition not mentioned.
2.	A.1b	150	P5 –Form No.24 P8-RTC	Defendant No. 1 Decreed by	Source of acquisition by Land Tribunal

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				trialCourt
3.	A.1c	58B2A1	P3-Form No.24 P9, D1- RTCs	Defendant No. 2	Source of acquisition not mentioned.
4.	A.1d	58/A2A5	P5- Form No.24 P-10-RTC	Defendant No. 1 Decreed by trial Court	Source of acquisition not mentioned.
5.	A.1e	58A2B2	P5 Form No.24	Defendant No. 1	Source of acquisition not mentioned.
6.	A.1f	151A/2	P5 Form No.24 P12-RTC	Defendant No. 1 Decreed by trial Court	Ancestral
7.	A.1g	579C2b1 b	P6-RTC	Defendant No. 2	Source of acquisition is partition MR No.T-84
8.	A.2	Pl. No. 25	P37- lease cum Sale deed	Defendant No. 1	Source of acquisition not mentioned.
9.	A.3	House	P39 – Panchaya th certificate	Defendant No. 1	Source of acquisition not mentioned.
10.	A.4	Cattle House	P40- Panchaya th Certificate	Defendant No. 1	Source of acquisition not mentioned.
11.	B.1a	128B	P5 Form No.24	Defendant No. 1	Source of acquisition not mentioned.
12.	B.1b	198A	P4 –Form No.24 P-15-RTC	Defendant No. 3	Partition MR No.76/2010- 11
13.	B.1c	151-A3	P4- Form No.24	Defendant No. 3	Source of acquisition not mentioned.
14.	B.1d	151-A/1	P4- Form No.24 P16,D4 –	Defendant No. 3 Decreed by	By partition MR No.76/2010-

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			RTCs	trialCourt	11
15.	C.1a	50A	P17- RTC P32-RTC	Defendant No.4	Partition- MR No.T-12
16.	C.1b	125-A/1	P18 – RTC P33-RTC	Defendant No. 4	Partition- MR No.T-13
17.	C.1c	126/1	P19 – RTC P31-RTC	Defendant No. 4	Partition-MR No.T-14
18.	D.1a	262	P20 – RTC	Defendant No. 1 Decreed by trial Court	Source of acquisition not mentioned.
19.	D.1 b	127	P5- Form No.24	Defendant No. 1 Decreed by trial Court	Source of acquisition not mentioned.
20.	D.1c	49/B	P22- RTC	Anuval Lingappa	Occupancy rights by Tribunal
21.	D.1 d	50/B	P23- RTC	Anuval Lingappa	Occupancy rights by Tribunal
22.	D.1e	46B	P24- RTC	Anuval Lingappa	Source of acquisition not mentioned.
23.	E.1a	262	P5- Form No.24	Defendant No. 1 Decreed by trial Court	Source of acquisition not mentioned.
24.	E.1b	50/C	P5- Form No.24 P-25-RTC	Defendant No. 1	Source of acquisition not mentioned.
25.	E.1c	125-C	P5- Form No.24 P26-RTC	Defendant No. 1 Decreed by trial Court	Source of acquisition not mentioned.
26.	E.1d	49/B	P22- RTC P-28-RTC	Anuval Lingappa	Occupancy rights by Tribunal
27.	E.1e	50/B	P23 –RTC P30-RTC	Anuval Lingappa	Occupancy rights by Tribunal

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NC: 2024:KHC-D:13191-DB RFA No. 100578 of 2022

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28.	E.1f	46/B	P24- RTC P29-RTC	Anuval Lingappa	Source of acquisition not mentioned.
29.	F.1a	H.No.80	P1- Certificate by Panchaya th	Defendant No. 1	Source of acquisition not mentioned.
30.	F.2	House	-	-
31.	F.3	House	-	-
32.	G.1	Gold	-	-
33.	G.2	Silver	-	-
34.	G.3	Car	P36 – ‘B’ extract of RC	Defendant No. 3	Source of acquisition not mentioned.

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Plaintiff has not included Survey No. 109D/admeasuring 26 cents situate at Guttiganur village.

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From the above, it is clear that some of the properties standing in the name of defendant No.1 are available for partition cannot be disputed. The Trial Court observed that survey No.151A/2, 151-A/1, 150, 58A2a5, 262, 127 and survey No.125-C which are mentioned in the above mentioned table at Sl.No. 2, 4, 6, 14, 18, 19, 23 and 25 are only to be partitioned. Therefore, the above finding that these properties are not self acquired properties is not in dispute before this Court. In addition to the above properties, the other properties as may be found from the above table, which were standing in the name of defendant

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No.1-Lingappa are also available for partition, due to his intestate demise. Therefore, the properties standing in the name of defendant No.1 having devolved upon his class-I heirs are also to be partitioned among the parties.

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We have meticulously examined the testimony of PW1 and the documents produced by him. None of the documents show that the defendant No. 1 to 3 acquired the properties from out of the income of the ancestral properties. Moreover, the PW1 in his testimony has admitted that the defendant No. 1–Lingappa was also a contractor. The documents produced by the plaintiff show that there is absolutely no material on record to establish that the joint family had owned the movables as stated in the Schedule‘G’. The item No.3 in Schedule-’G’ i.e. Innova car is admittedly standing in the name of defendant No.3 and therefore, it cannot be said that it is the joint family property as it was not standing in the name of defendant No.1. We do not find any reason to differ with the views taken by the trial

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Court.

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It is pertinent to note that the trial court has not given

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any reason for not allotting any share to the wife of Thimmappa, who was also a son of Lingappa. The defendant No. 5 is the wife of predeceased son of Lingappa. On the demise of Lingappa, his wife and children are also entitled for a share. Hence she is also entitled for a share.

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As an out come of above reasoning, only the properties which are standing in the name of defendant No.1 are available for partition and as such they are to be divided. Under these circumstances, the appeal deserves to be allowed in part. In addition to the properties which are shown to be the ancestral properties as per the decree of the Trial Court, the properties which are standing in the name of the defendant No.1 would devolve upon his legal heirs under Section 8 of the Hindu Succession Act and therefore, the appeal is liable to be allowed in part. Hence, the following:

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ORDER

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a. The appeal is allowed in part.

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b. Apart from the properties decreed by the Trial

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Court, the below properties are also to be partitioned.

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NC: 2024:KHC-D:13191-DB RFA No. 100578 of 2022

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Sl.No	Suit Schedule	Sy. No.	Document Ex No.
1.	5A.1e	58A2B2	P5 Form No.24
2.	8A.2	Pl. No. 25	P37- lease cum Sale deed
3.	9A.3	House	P39 – Panchayath certificate
4.	0A.4	Cattle House	P40- Panchayath Certificate
5.	B.1a	128B	P5 Form No.24
6.	0D.1c	49/B	P22- RTC
7.	2D.1d	50/B	P23- RTC
8.	2D.1e	46B	P24- RTC
9.	2E.1b	50/C	P5- Form No.24 P-25-RTC
10.	E.1d	49/B	P22- RTC P-28-RTC
11.	E.1e	50/B	P23 –RTC P30-RTC
12.	E.1f	46/B	P24- RTC P29-RTC
13.	F.1a	H.No.80	P1-Certificate by Panchayath

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c. The plaintiff is entitled for 1/5^th share and

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defendant Nos.2, 3, 4 and 5 are entitled for 1/5^th share

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in the properties.

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d. No order as to costs.

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Sd/(B.M.SHYAM PRASAD) JUDGE

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Sd/(C M JOSHI) JUDGE

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HMB

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LIST NO.: 1 SL NO.: 3

H Nagaraj S/O H Lingappa and Earamma v. H Lingappa S/O H Basappa Dead by His Lrs.

Case brief

What is this about?

What did the court decide?

H Nagaraj S/O H Lingappa and Earamma v. H Lingappa S/O H Basappa Dead by His Lrs.

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

Case details

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