Dismissed

Gunde Rao S/O Late Vihtal Rao and Anr. v. Umesh S/O Late Vithal Rao and Anr.

Karnataka HC4 Nov 2024RFA/200028/2023

Case brief

AI extract

What is this about?

This High Court dismissed an appeal challenging a partition decree. The Court upheld the 1/4th share granted to siblings, rejecting the plea of an oral partition and allowing no additional evidence, as defendants failed to prove essential facts pleaded.

What did the court decide?

Appeal dismissed; trial court decree confirming 1/4th share to each party is affirmed.

Gunde Rao S/O Late Vihtal Rao and Anr. Vs Umesh S/O Late Vithal… — Partition | Karnataka HC (2024)

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NC: 2024:KHC-K:8047 RFA No. 200028 of 2023

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IN THE HIGH COURT OF KARNATAKA,

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KALABURAGI BENCH

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DATED THIS THE 4^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE M.G.S.KAMAL

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REGULAR FIRST APPEAL NO. 200028 OF 2023

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(PAR/POS)

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BETWEEN:

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GUNDE RAO S/O LATE VITHAL RAO, AGED ABOUT 65 YEARS, OCC: AGRICULTURE, R/O PLOT NO. 115, NGO COLONY, KALABURAGI-585103.

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RAMESH S/O LATE VITHAL RAO, AGED ABOUT 63 YEARS, OCC: AGRICULTURE, R/O PLOT NO. 115, NGO COLONY, KALABURAGI-585103.

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…APPELLANTS

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Digitally signed by SHIVALEELA DATTATRAYA UDAGI

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Location: HIGH COURT OF KARNATAKA

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(BY SRI KUMMATHI VENKATESULU, ADVOCATE)

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AND:

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UMESH S/O LATE VITHAL RAO, AGED: 56 YEARS, OCC: AGRICULTURE, R/O KARCHKHED VILLAGE, TQ. CHINCHOLI, DIST. KALABURAGI-585227.

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SUKANYA W/O PRAKASH, AGED: 61 YEARS, OCC: HOUSEHOLD, R/O DEVI APARTMENTS, FLAT NO. 3, VISHWAJYOTHI COLONY, SHIVASHAKTI NAGAR, KOTNOR MATHA (D), KALABURAGI TALUK, DIST. KALABURAGI-585107

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…RESPONDENTS

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(BY SRI SUDARSHAN M., ADVOCATE FOR R1 AND R2)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC, PRAYING TO SET ASIDE THE DECREE AND JUDGMENT DATED 24.01.2023 PASSED IN O.S.NO.22 OF 2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC AT CHINCHOLI AND DISMISSED THE SUIT WITH COSTS AND TO PASS SUCH OTHER ORDER OR ORDER THE APPELLANTS ARE ENTITLED TO.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)

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This appeal is by the defendants No.1 and 3 aggrieved by the judgment and decree dated 24.01.2023 passed in O.S.No.22/2018 (hereinafter referred to as ‘Trial Court’ for short), by which the Trial Court decreed the suit filed by the plaintiff/respondent No.1 for partition granting 1/4^th share to the plaintiff and defendants each.

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It is the case of the plaintiff that he is the younger brother of defendants No. 1 to 3 and that they are the sons and daughters of one late Vithalrao and his wife Gangabai, who are no more. The suit properties belonged to said Vithalrao and late Gangabai and on their

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demise they being their children succeeded to the same and are living in a undivided Hindu joint family and there has been no partition between the plaintiff and the defendants. Defendant No.1 was misusing the income arising out of the joint family properties as such the plaintiff requested for his share, the same was declined. Hence, sought for 1/4^th share in the suit property.

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In the written-statement filed by defendants No.1 and 3 relationship between the plaintiff and the defendants is admitted. It is also admitted that the suit schedule properties are the ancestral properties of the plaintiff and the defendants. It is also admitted that in a partition that was entered into between their father-late Vithalrao and his brothers, the suit properties was allotted to the share of Vithalrao. It is also admitted that subsequent to demise of Vithalrao and Gangabai plaintiff and the defendants have succeeded to the suit properties. However, it is contended that in the year 2011, there was a partition between the plaintiff and the defendants in

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terms of which the plaintiff has been allotted two lands survey numbers i.e., survey No.26/2 measuring 6 acre 8 guntas and survey No.11/1 measuring 2 acres 39 Guntas of Karchkhed Village, Chincholi Taluk, Kalaburagi District. Ever since then the plaintiff has been enjoying the said properties as owner and possessor thereof. That the plaintiff has deliberately suppressed the said fact before the Court only to unlawfully gain himself.

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It is contended that the father of the plaintiff and defendants had performed the marriage of defendant No.2 and had fulfilled all the formalities and responsibilities. As such she was not entitled for any share in the suit properties. That since the plaintiff has already received his share in the suit properties namely Item No. ‘A’ and ‘D’, his request for partition was declined. Hence, sought for dismissal of the suit.

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Based on the pleadings, the Trial Court framed the following issues for its consideration;

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Whether plaintiff proves that the suit schedule properties are ancestral and joint family properties of plaintiff and defendants?

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Whether plaintiff is entitled for relief’s sought for?

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What order and decree?

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The plaintiff examined himself as PW1 and two

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more witnesses examined as PW2 and PW3 and exhibited 16 documents marked as per Ex.P1 to P16. Defendant No.1 examined himself as DW1, another witness examined as DW2 and defendant No.2 had been examined as DW3. The evidence of DW2 has been expunged and 17 documents have been marked on behalf of defendants as per Ex.D1 to D17.

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On appreciation of evidence, the Trial Court answered issue Nos.1 and 2 in the affirmative and consequently decreed the suit as sought for. Being aggrieved by the same the appellants/defendants are before this Court.

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Learned counsel appearing for the

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appellants/defendants reiterating the grounds urged in the memorandum of appeal submitted that;

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(a) though in the written-statement

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appellants/defendants herein had admitted relationship, nature of the properties as well as the partition that had taken place between the father of the parties and his brothers he submits that later on perusal of record it was found that there was no partition of the ancestral properties between their father and his brothers as pleaded by them. He submits even PW1 during his crossexamination has admitted that suit property formed part of the ancestral property of late Gopalrao, who is the grandfather of the parties and he had passed away leaving behind six sons and two daughters namely Narsinga Rao, Raghavendra Rao, Vithal Rao, Srinivas Rao, Panduranga Rao, Vaman Rao, Smt. Padmavati Bhai and Shantha Bhai and that there was no partition amongst the children of said Gopalrao.

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(b) He submits that this aspect of the matter has

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not been appreciated by the Trial Court even when the same was brought to its notice at the time of argument. He submits that since there was no effective partition of the ancestral properties amongst the family members of Gopalrao, the plaintiff could not have filed the present suit claiming the suit properties to be the properties allotted to the share of their father Vitalrao.

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from non-joinder of parties in which all other children of Gopalrao ought to have been made as a party.

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(d) He submits that the oral partition was not acceptable in view of the law laid down by the Hon’ble Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and others reported in (2020) 9 SCC 1.

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(e) He submits appellants have also filed an

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application under Order 41 Rule 27 of Code of Civil Procedure, 1908 to bring on record the documents being

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mutation register extracts listed in the application, which would prove that Vitalrao did not have any exclusive right over the suit properties. He submits that said documents are necessary and essential to prove that there had been no family partition amongst the children of Gopalrao. He submits that the documents are not available when the matter was being considered the Trial Court. As such, seeks for allowing the application and the appeal.

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Per contra, learned counsel appearing for the respondents/plaintiffs submits that the contention of the plaintiffs have been unequivocally admitted by the defendants in their written statement and an attempt had been made only at the last stage of the proceeding before the Trial Court to introduce the plea of family properties of Gopalrao remaining intact without any partition, which has been rightly answered by the Trial Court. He submits that once the defendants had admitted their father Vithalrao and their mother Gangabai being the owners of the property and they having failed to establish oral partition

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of the year-2011, they cannot be permitted to retract from the said admission. As regard the application for production of document is concerned, he submits that the appellants have made no grounds for allowing of the application and hence, seeks for dismissal of the same.

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Heard and perused the records.

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The points that arise for consideration is:

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“Whether the Trial Court is justified in holding that suit schedule properties are the joint family properties of plaintiff and defendants and granting 1/4^th share to the parties”?

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From the perusal of the pleadings made in the plaint and the written statement as extracted hereinabove, it is clear that plaintiff and the defendants are the children of one Vithalrao and his wife Gangabai. Defendants have categorically admitted in the written statement the suit properties were the ancestral properties that were possessed and enjoyed by Vithalrao and his wife Gangabai

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during their lifetime. The suit properties had been allotted to the share of their father Vitalrao in the partition that had been entered into between him and his brothers. The only contention urged by the defendants in the writtenstatement is about a purported oral partition that had been entered into in the year-2011, in which, the plaintiff had been allotted land in survey No.26/2 measuring 6 acres 8 guntas and survey No.11/1 measuring 2 acres 39 guntas. As such, it was contended that the plaintiff was not entitled for the share in the suit property.

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Since there is an admission on the aspect of nature and the ownership of the property and also there is an admission with regard to the relationship between the plaintiff and the defendants, unless the defendants prove and establish the partition of the year 2011, as contended in the written statement in the manner known to law, the claim of the plaintiff cannot be denied.

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As rightly taken note of by the Trial Court, in the entire written-statement except raising the contention

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of there being an oral partition in the year–2011, the defendants have agreed, accepted and admitted the case of the plaintiff in its entirety. However, during the final argument, learned counsel for the defendants have sought to set up a plea that their grandfather Gopalrao had eight children and that there was no partition amongst them and as such the plaintiff could not have maintained the suit without impleading them as a parties to the suit. The Trial Court has adverted to the said aspect of the matter, at paragraph 20 of the judgment wherein, it has held that when the one hand the defendants have contended that there was an oral partition in the year 2011 between the plaintiff and the defendants and on the other-hand they could not have raised the plea of there being no partition at all between children of Gopalrao, i.e., between their father and his brothers. Said contention raised by the counsel for the defendants at the stage of the argument in the absence of any pleading, the Trial Court has declined to accept the same.

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Further, the plea of oral partition of the year2011 has also been declined by the Trial Court in view of the law laid down by the Hon’ble Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and others reported in (2020) 9 SCC 1, wherein it has held that a plea of partition based on oral evidence alone cannot be accepted, in view of the explanation of Section 6(5) of Hindu Succession Act, 1956 and the same is to be rejected outrightly. It is now a settled law that there cannot be any oral partition subsequent to the amendment of Section 6 of the Hindu Succession Act. Therefore, no irregularity or illegality can be found with the conclusion arrived at by the Trial Court.

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As regards the application filed by the appellants under Order 41 Rule 27 of Code of Civil Procedure seeking production of document is concerned, the appellants are seeking to produce 9 documents in the nature of mutation Register extracts. At paragraph 4 of the affidavit accompanying the said application it is

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pleaded that the defendants could not produce the said documents due to there non-availability. That they received the said document only on 27.01.2023 and the said documents were necessary to prove the contention that the suit properties were never subjected to any kind of partition during the lifetime of their father Vithalrao. Further at paragraph No.6 on the affidavit accompanying the application, it is pleaded that the documents sought to be produced are essential to prove and establish the title of the appellants over the suit schedule property. The aforesaid contents of the affidavit filed along with the application, apart from being mutually conflicting and contradictory would not satisfy the requirement of law for production of additional documents as provided under Order 41 Rule 27 of Code of Civil Procedure, which reads as under:

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"27. Production of Additional evidence in Appellate Court.-

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(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-

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(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

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(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

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(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

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the Appellate Court may allow such evidence or document to be produced, or witness to be examined."

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(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission”.

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The documents sought to be produced are apparently in support of the contention of the defendants that there was no partition of the ancestral properties amongst the brothers of Vithalrao. There is no foundational plea in this regard in the written statement. In the absence of any pleading to the said extent, defendants cannot claim any right or entitlement to produce the documents in support of a non-pleaded contention. Therefore, the plea of non-availability of the document at the time of leading evidence before the Trial

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Court is of no consequences. At any rate, the other ground urged in the application is that the said documents are necessary to prove and establish the title of the appellants over the entire suit schedule property. Even the said ground as urged runs contrary to the case of the defendants. Besides, the documents are not required for disposal of the case inasmuch as defendants themselves in the written-statement have admitted the suit properties to be the ancestral properties belonging to their father Vitalrao and upon whose demise, plaintiff and defendants having succeeded to the same. The defendants having failed to prove their plea of oral partition of the year-2011 cannot now be heard to say there was no partition at all, either amongst the family members of their father Vitalrao or amongst the plaintiff and defendants after his demise.

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Learned counsel for the plaintiffs/respondents submit that even the document produced by the defendants in Ex.D series would indicate that after the demise of Vitalrao, the suit properties were mutated in the

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joint names of mother of the plaintiffs and defendants and the plaintiffs and defendants which continued till filing of the suit as there was no partition. He further submitted the said documents support the case of the plaintiff.

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For the aforesaid reasons, no grounds are made out for allowing the application seeking production of additional documents.

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No grounds are made out for interference with the judgment and decree passed by the Trial Court.

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Accordingly, the appeal is dismissed, the judgment and decree passed by the Trial Court is confirmed.

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Sd/(M.G.S.KAMAL) JUDGE

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SDU,KBM List No.: 1 Sl No.: 2 CT:PK

Gunde Rao S/O Late Vihtal Rao and Anr. v. Umesh S/O Late Vithal Rao and Anr.

Case brief

What is this about?

What did the court decide?

Gunde Rao S/O Late Vihtal Rao and Anr. v. Umesh S/O Late Vithal Rao and Anr.

Case brief

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What did the court decide?

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