Dismissed

Manjula W/O Fakkirappa Savanur v. Champakka W/O Sanganabasappa Vanahalli

Karnataka HC10 Dec 2024RFA/4051/2012

Case brief

AI extract

What is this about?

Appeal against a judgment in a partition suit where the plaintiff sought a share in family properties. The High Court upheld the trial court's finding that properties were self-acquired, not ancestral, dismisses the suit as the father and sons had already partitioned the family estate during his lifetime and disposed of properties without her share.

What did the court decide?

Appeal dismissed; suit by the plaintiff dismissed without decree; no 1/4th share granted in the suit properties.

Manjula W/O Fakkirappa Savanur Vs Champakka W/O Sanganabasappa… — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:18059 RFA No. 4051 of 2012

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 10^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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REGULAR FIRST APPEAL NO. 4051 OF 2012 (PAR-)

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BETWEEN:

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SMT. MANJULA W/O. FAKKIRAPPA SAVANUR, AGED: 64 YEARS, OCC: HOUSEHOLD R/O: JAYA-NAGAR, SHIGGAON, TQ: SHIGGAON, DIST: HAVERI.

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…APPELLANT

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(BY SRI. SUNIL S. DESAI, ADVOCATE)

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AND:

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ASHPAK KASHIMSA MALAGALADINNI

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Location: HIGH COURT OF KARNATAKA

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SMT. CHAMPAKKA W/O. SANGANABASAPPA, AGED: 45 YEARS, OCC: SERVICE, R/O: BELAGALAPETE, TQ: HANAGAL, DIST: HAVERI.

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JAYAPRAKASH S/O. SANGANABASAPPA VANAHALLI AGE: MAJOR, OCC: POLICE CONSTABLE, R/O: TADAS, TQ: SHIGGAON, DIST: HAVERI.

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MURIGEPPA S/O. VEERABHADRAPPA VANAHALLI, AGE: MAJOR, OCC: AGRICULTURE, R/O: NEW BUS STAND ROAD, SHIGGAON, DIST: HAVERI.

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SHRI. ISHWARAPPA S/O. VEERABHADRAPPA SAVANUR, (SINCE DECEASED BY HIS LRS)

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4A. SUNANDA W/O. ISHWARAPPA VANAHALLI, AGE: 55 YEARS, OCC: HOUSEHOLD, R/O: NEAR RENUKACHARYA CO-OPERATIVE SOCIETY, TQ: SHIGGAON, DIST: HAVERI.

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4B. MAHESH

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S/O. ISHWARAPPA VANAHALLI, AGE: 34 YEARS, OCC: PRIVATE WORK, R/O. NEAR RENUKACHARYA CO-OPERATIVE SOCIETY, TQ: SHIGGAON, DIST: HAVERI.

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4C. JAYALAXMI W/O. MALATESH MYAGERI, AGE: 32 YEARS, OCC: PRIVATE WORK, R/O. NEAR RENUKACHARYA CO-OPERATIVE SOCIETY, TQ: SHIGGAON, DIST: HAVERI.

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4D. GANGADHAR S/O. ISHWARAPPA VANAHALLI, AGE: 30 YEARS, OCC: PRIVATE WORK, R/O. NEAR RENUKACHARYA CO-OPERATIVE SOCIETY, TQ: SHIGGAON, DIST: HAVERI.

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3 - NC: 2024:KHC-D:18059 RFA No. 4051 of 2012

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VEERANNA S/O VEERABHADRAPPA VANAHALLI, AGED: 52 YEARS, OCC: AGRICULTURE, R/O: VIRAKTAMATH ONI, TQ: SHIGGAON, DIST: HAVERI.

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SMT. SRIDEVI W/O. VEERABHADRAPPA VANAHALLI, AGE: MAJOR, OCC: HOUSEHOLD, R/O: NEW BUS STAND ROAD.

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…RESPONDENTS

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(BY SRI. SANGRAM S. KULKARNI, ADV FOR R2, R6 & R4 (A – D); SRI. M.H. PATIL, ADVOCATE FOR R3 & R5; NOTICE TO R1 IS DISPENSED WITH)

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THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W SECTION 96

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OF THE CODE OF CIVIL PROCEDURE, PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE PASSED BY THE PRL. SENIOR CIVIL JUDGE, HAVERI IN O.S.NO.20/2009 DATED 22.10.2011 AND TO DECREE THE SUIT OF THE PLAINTIFF BY GRANTING HER 1/4^TH LEGITIMATE SHARE IN THE SUIT PROPERTIES WITH COSTS THROUGHOUT, IN THE INTEREST OF JUSTICE AND EQUITY.

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

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NC: 2024:KHC-D:18059 RFA No. 4051 of 2012

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CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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This appeal is arising from suit for partition. The sole plaintiff is in appeal.

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The admitted genealogy of the parties is as

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under:

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Veerabhadrappa Kallappa Vanahalli

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(Propositous Expired on 27.11.2008)

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Smt. Parawwa (Wife – Expired on 27.11.2004)

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S1. Sanganabasappa S.2 Murigeppa (Expired) (D-3) S.3 Ishwarappa (D-4) Smt. Champakka (Wife D-1) Jayaprakash (SonD-2)

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(Daughter) Smt. Manjula (Plaintiff)

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One Veerabhadrappa Vanahalli the father of the plaintiff died on 27.11.2008. The plaintiff’s mother Parawwa i.e., wife of Veerabhadrappa died on 27.11.2004. The couple had three sons and one daughter. The plaintiff filed a suit against her two brothers, who are arrayed as defendants

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No.3 and 4 and the wife and son of her deceased brother

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Sanganabasappa are arrayed as defendants No.1 and 2.

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The plaint averments would reveal that the plaintiff has made a claim that plaintiff’s father Veerabhadrappa alienated plaintiff’s mother's property and then he purchased RS.No.387/1 i.e., the property described as item No.2(a) in the plaint schedule. The plaintiff, her mother and father worked day and night and developed the property. The property at schedule 2(b) is the property purchased by the plaintiff, her father and mother. The buildings in the suit properties were leased to Agriculture department and from the income derived from these houses, plaintiff’s father purchased the property described in schedule 2(c) and 2(d). It is further stated that plaintiff’s father purchased the property at schedule 2(e) for and on behalf of the family and the property at schedule 2(f) is purchased by plaintiff’s father with the aid of the joint family funds. Thus, the plaintiff claims that the plaintiff and defendants No.1 to 4 have share in the suit properties as her

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NC: 2024:KHC-D:18059 RFA No. 4051 of 2012

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mother died in the year 2004 and father died in the year 2008.

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The plaintiff claims that defendants in collusion

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with each other, got certain documents created. The plaintiff further states that the property at 2(c) was purchased by her father in the name of defendant No.3 on 31.03.1990 by investing more than Rs.8,00,000/-. The plaintiff claims that the defendant No.3 made an attempt to alienate the said property without the knowledge of the plaintiff and other family members. Hence, the suit was filed before Senior Civil Judge, Shiggaon. However, by taking advantage of the wrong property number mentioned in the suit, on 12.03.2007, defendant No.3 sold property to defendant No.5. The plaintiff contends that the said sale deed is not binding on the plaintiff. It is further stated that the property bearing No.1989/2/1 was purchased by plaintiff’s father in the name of defendant No.4 and defendant No.4 taking advantage of his name appearing in the property records, has sold the property to defendant No.6, who is the elder sister of his wife and contends that the said transaction is a

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benami transaction. It is further stated that property at schedule 2(f) is also the joint property acquired from the income of joint family properties in the name of defendant No.4 and defendant No.4 received more than Rs.5,00,000/from National Highway Authority towards acquired portion of the property and invested the said amount to purchase the property at schedule 2(f). Hence, plaintiff contends that the said property is also the joint family property.

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Defendant No.1 remained ex-parte. Defendants No.3, 4 have filed separate written statement and defendant No.5 has filed separate written statement.

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Defendants No.3 and 4 have specifically denied that the suit properties are the joint family properties. It is denied that their mother possessed agricultural Stridhan properties at Attigeri village. It is further denied that plaintiff’s father sold the plaintiff’s mother's property and purchased property bearing Sy.No.387/1, CTS Nos.2430, 2430/1 and 2430/2. It is their defence that on 15.06.1962, the father, from his own earning purchased the property bearing RS.No.387/1 from one Smt.Leelavathi Patil along

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with his brothers. Then, there was a partition among the father and brothers. In the partition, 5 acres 36 guntas were allotted to the share of plaintiff’s father. It is contended that partition took place on 15.06.2005.

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It is further stated that Defendant No.4 purchased the property measuring 1 acre 10 guntas in RS.No.387/1B from Veerabhadrappa Vanahalli and on 07.08.2008, defendant No.4 purchased another 1 acre 10 guntas in RS.No.387/1D. Therefore, two properties are the self-acquired properties of defendant No.4.

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It is further contended that Veerabhadrappa Vanahalli purchased TMC No.2430, 2430/1 and 2430/2 on 30.03.1984 from Venkatarao Deshpande. The said property was partitioned on 27.07.1996. Later the properties were renumbered as 2430/1 and 2430/2. The properties bearing TMC No.2430 and 2430/1 were allotted to the share of defendant No.4 and property bearing TMC No.2430/2 was allotted to share of defendant No.3 in the family partition.

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It is further contended that the property bearing TMC No.1989/2/21A was purchased by defendant No.4 on 09.12.1996 and same is self-acquired property of defendant No.4. The property bearing TMC No.1989/2/4 was purchased by Veerabhadrappa Vanahalli on 04.01.1988 from Laxmipatirao Srinivasarao Deshapande out of his own earnings. It is further stated that on 22.03.2007, the same is sold to defendant No.6 and property bearing TMC No.1855/1/A was also purchased by Veerabhadrappa on 22.07.1996 out of his self earnings and the said property was allotted to the share of defendant No.3-Murigeppa in the family partition.

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It is further stated that defendant No.4 from his own earnings purchased the property bearing CTS No.B2/1 on 15.07.1997.

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It is stated that plaintiff was married on 08.04.1976 and she has been residing in her husband’s house and in the year 1983-84, plaintiff left the company of her husband and filed a suit against her husband. Defendants No.3 and 4 provided financial help to her.

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The trial Court framed the issues based on the

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pleadings and has held that plaintiff has failed to establish that the suit properties are the joint family properties. The trial Court has also held that suit properties are the self acquired properties of defendants. It is also held that partition of 1996 is a partial partition and consequently, dismissed the suit.

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Learned counsel appearing for the plaintiffappellant would contend that trial Court erred in dismissing the suit after holding that partition of 1996 is partial. No independent source of income is established by the father to purchase the properties and in the absence of said income, the Court ought to have held that the father has purchased the properties from the income from ancestral properties and suit ought to have been decreed treating all the properties as the joint family properties. Alleged partition of 1996 is not valid and same is not registered in accordance with law. In the absence of a registered document, contention of 1996 partition cannot be accepted, is the submission.

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Learned counsel appearing for the contesting respondents would contend that the plaintiff has made a claim that father had purchased the property by selling the property of the mother and thus, the contention that the property is the ancestral property itself is not available. If the properties are acquired from the money derived after selling the properties of the wife, then the said property cannot be construed as ancestral property.

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In addition to that he would also contend that the plaintiff has not established that the father had ancestral property in his hands to acquire the properties. On the other hand, all the documents produced would show that either the father purchased the property in his name along with the brothers or the properties were purchased by the sons.

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It is urged that in the year 1996 the father effected the partition among his sons and thereafter, the property retained by him are sold through registered sale deeds and even the plaintiff’s brothers who are allotted share in the partition sold the properties through registered sale deeds to the purchasers. The father did not object to any of

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these transactions. Thus, plaintiff cannot maintain a suit for partition.

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This Court has considered the contentions raised

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at the bar and perused the records. The following points arise for consideration;

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i) Whether the plaintiff proves that the plaintiff’s father having sold the property of his wife has purchased Schedule 2(a) property for and on behalf of the family.

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ii) Whether the defendants prove that the father acquired the properties from his own funds and he effected a partition among his sons.

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As already noticed, there is no pleading in the plaint that the plaintiff’s father possessed ancestral properties. The suit is filed on the premise that the plaintiff’s father purchased item No.2(a) property after selling the property that was standing in the name of his wife. This contention is not established. No records are produced to show that the properties are standing in the name of

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plaintiff’s mother and that the property was sold to raise corpus to purchase item No.2(a) property. Even if that contention is accepted, it cannot be said that the property purchased from the sale proceeds after selling the properties of the mother would be the ancestral properties.

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It is also noticed in the year 1962 item No.2(a) property was purchased by the plaintiff’s father along with his brothers and thereafter, there was a partition among the plaintiff’s father and his brothers and 5 acres 26 guntas i.e. item No.2(a) property was allotted to plaintiff’s father and thereafter, few properties have been purchased in the name of the plaintiff’s father. And some properties are purchased by defendants No.3 and 4. Assuming that the properties are purchased from the income derived from item No.2(a) property, then also those properties would be either the self acquired property of the plaintiff’s father or the properties of the sons in whose name the property purchased. The reason is the plaintiff has not proved existence of any ancestral property. Thus, the properties cannot be construed as joint

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NC: 2024:KHC-D:18059 RFA No. 4051 of 2012

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family properties to hold that the daughter will also acquire a share in the properties.

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The defendants have pleaded the partition of 1996. The document is produced at Ex.D-59. The document would indicate that the partition took place during the lifetime of the father. At that point of time the daughter had no right as the daughter was not a co-parcener. In the said partition, the properties are allotted to the share of plaintiff’s father and defendants No.3 and 4. A property retained by the father later sold by the father as per Ex.D-47 and defendant No.3 has sold the properties allotted to him. Likewise, defendant No.4 has sold the property to his wife’s sister. These transactions took place when the father was alive. The father did not question it. Under these circumstances, the court has to hold that the plaintiff does not get any share as by the time plaintiff’s father died there were no properties standing in his name.

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As per Ex.D-9 the properties at schedule property

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2(b) to 2(e) are divided and as far as 2(a) is concerned, the

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properties are divided in the year 2005. As per Ex.D-60, the schedule 2(a) property is divided on 15.03.2005. In the year 2007, father sold the property allotted to his share. The sale deed is marked at Ex.D47. The father did not question the partition in his lifetime. When this partition took place the daughter had no share. Though the partition of 2005 is not registered which seeks to confer right in favour of his sons for the first time, it is relevant to note that pursuant to the partition the properties have been sold before filing of the suit and all those transactions have taken place through a registered documents. Under these circumstances, this Court is of the view that the plaintiff was not having any share in the suit properties when the suit was filed.

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The trial Court has noticed all these transactions and rightly came to the conclusion that the plaintiff is not entitled to any relief in this suit. Accordingly, the same is dismissed.

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On appreciation of evidence, this Court does not

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find any reason to interfere with the impugned judgment and

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decree.

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Accordingly, the appeal is dismissed.

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Sd/(ANANT RAMANATH HEGDE)

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JUDGE

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AM/CHS CT:ANB List No.: 1 Sl No.: 44

Manjula W/O Fakkirappa Savanur v. Champakka W/O Sanganabasappa Vanahalli

Case brief

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What did the court decide?

Manjula W/O Fakkirappa Savanur v. Champakka W/O Sanganabasappa Vanahalli

Case brief

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What did the court decide?

What the court decided

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Issues for consideration

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