Allowed

Smt. Sumitra W/O. Ramanayak Patil v. Sri. Ramanayak S/O. Dharamanayak Patil

Karnataka HC11 Sept 2024RFA.CROB/100010/2018

Case brief

AI extract

What is this about?

Cross objection by two daughters against partial decree in a partition suit. Holding that no partition occurred after their parents' demise and that re-granted service inam lands enured to the whole family's benefit, the High Court modified the decree entitling each daughter to a 1/3rd share in all suit schedule properties.

What did the court decide?

Cross-objection allowed; civil Court's judgment and decree modified declaring each cross objector entitled to 1/3rd share in each suit schedule property; Office directed to draw preliminary decree; no

Smt. Sumitra W/O. Ramanayak Patil Vs Sri. Ramanayak S/O… — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:13006-DB RFA.CROB No. 100010 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 11^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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RFA CROSS OBJ NO. 100010 OF 2018 (PAR/POS)

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BETWEEN:

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SMT. SUMITRA W/O. RAMANAYAK PATIL AGE: 69 YEARS, OCC:AGRICULTURE, R/O.CHIKKAMALLIGAWAD VILLAGE, TALUK AND DISTRICT:DHARWAD-580007.

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SMT KASHIBAI, W/O. SHIVANAYAK PATIL AGE:64 YEARS, OCC: HOUSEGHOLD WORK AND AGRICULTURE, R/O. GANDHINAGAR, HUBBALLI, TALUK:HUBBALLI, DISTRICT:DHARWAD-580030.

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…CROSS OBJECTORS

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(BY SRI. ARUN L. NEELOPANT, ADVOCATE)

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AND:

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Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA

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SRI. RAMANAYAK S/O. DHARAMANAYAK PATIL AGE:58 YEARS, OCC:AGRICULTURE, R/O. CHIKKAMALLIGAWAD VILLAGE, TALUK AND DISTRICT:DHARWAD-580007.

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SRI APPASAB @ SHIVANAYAK, S/O. DHARMANAYAK PATIL, AGE: 54 YEARS, OCC: AGRICULTURE, R/O. CHIKKAMALLIGAWAD VILLAGE, TALUK AND DISTRICT:DHARWAD-580007.

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SMT. ANNAKKA W/O. BABASAB DESAI AGE: 52 YEARS, OCC:HOUSEHOLD WORK, R/O. C/O. RAMANAYAK, S/O. DHARAMANAYAK PATIL, R/O. CHIKKAMALLIGAWAD VILLAGE, TALUK AND DISTRICT:DHARWAD-580007.

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2 - NC: 2024:KHC-D:13006-DB RFA.CROB No. 100010 of 2018

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SMT. MEERA W/O. YANKANAGOUDA NAIK AGE: 48 YEARS, OCC:HOUSEHOLD WORK, R/O. GHODAGERI, TALUK:GOKAK, DISTRICT:BELAGAVI-591107.

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SMT. SUJATA W/O. RUDRAGOUDA PATIL AGE: 46 YEARS, OCC:HOUSEHOLD WORK, R/O. C/O. RAMANAYAK, S/O. DHARAMANAYAK PATIL, R/O. CHIKKAMALLIGAWAD VILLAGE, TALUK AND DISTRICT:DHARWAD-580007.

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PRAKASH S/O. RAJASHEKHAR PATIL, AGE: 59 YEARS, OCC:AGRICULTURE, R/O. MADANABHAVI VILLAGE, TALUK AND DISTRICT:DHARWAD-581105.

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MANJUNATH S/O. RAJASHEKHAR PATIL, AGE:57 YEARS, OCC:AGRICULTURE, R/O. MADANBHAVI VILLAGE, TALUK AND DISTRICT:DHARWAD-581105.

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SANTOSH S/O. RAJASHEKHAR PATIL AGE: 55 YEARS, OCC:AGRICULTURE, R/O. MADANBHAVI VILLAGE, TALUK AND DISTRICT:DHARWAD-581105.

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DEVARAJ S/O. RAJASHEKHAR PATIL AGE: 53 YEARS, OCC: AGRICULTURE, R/O. MADANBHAVI VILLAGE, TALUK AND DISTRICT:DHARWAD-581105.

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…RESPONDENTS

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(R6 TO R9 SERVED AND UNREPRESENTED)

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THIS RFA CROB. IS FILED UNDER ORDER 41 RULE 22(1) OF CIVIL PROCEDURE CODE R/W SECTION 151 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.04.2017 PASSED IN O.S.NO.85/2009 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE DHARWAD, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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3 - NC: 2024:KHC-D:13006-DB RFA.CROB No. 100010 of 2018

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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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ORAL JUDGMENT

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

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The cross objection is filed by the plaintiffs. They are aggrieved because their suit in O.S. No.85/2009 on the file of the Prl. Senior Civil Judge and CJM, Dharwad [for short, ‘ the civil Court’ ] is decreed in part. The cross objectors have filed this cross objection upon service of notice of the appeal by some of the defendants in R.F.A. No.100284/2018. The appellants in such appeal [ respondents herein ] though represented have remained absent and the appeal is dismissed for non-prosecution on 07.02.2024. They have not taken any action for restoration of the appeal. They remain absent in the cross-objection as well.

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The cross objectors are the daughters of Sri.

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Shiva Naik @ Shivanagouda and Smt. Krishnavva and the respondents are the children of their son, Sri. Dharma Naik. Both Sri. Dharma Naik and his wife Baiyakka are no more. Sri. Dharma Naik has died on 02.03.2008 and his wife has

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4 - NC: 2024:KHC-D:13006-DB RFA.CROB No. 100010 of 2018

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pre-deceased two months earlier. Sri. Arun L. Neelopanth, the learned counsel for the cross objectors, submits that the sixth – ninth respondent are the legal heirs of Sri Rajasekhara Patil and they are arrayed as parties only because he has acted as a next friend guardian of the first and the second respondents when they were minors.

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The civil Court has partly decreed the cross objectors suit declaring that each of the cross objector would be entitled for 2/9^th share in the lands in Block No.25, and Block No.612 of Chikkamaligawad village and Block No.88 of Kelagere village [the suit item Nos.1, 5 and 6 of Schedule-‘A’] while dismissing the suit insofar as lands in Block Nos.26, 45 and 198 of Chikkamaligawad village [the suit item Nos.2, 3 and 4 of Schedule-‘A’]. The civil Court has granted 2/9^th share to each of the cross objectors in residential property which is described in plaint Schedule ‘B’ property. The civil Court’s reasoning for granting 2/9^th share in some of the properties and rejecting share in the other properties are essentially in paragraphs No.18 of the impugned judgment which read as under:

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5 - NC: 2024:KHC-D:13006-DB RFA.CROB No. 100010 of 2018

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“As above stated Shivanaik Patil died in the year 1952, so succession is opened prior to 1956 as per Hindu Succession Act. So as per the Hindu Women’s Rights to property Act, 1937, Shivanaik and Krishnavva and Dharmanaik are entitled equal share i.e., 1/3^rd each share in the properties bearing Block Nos. 25, 88, 612 and house property at Chikkamalligawad and the daughters and son are entitled for notional partition in the father’s property i.e., 1/3^rd share. It is also admitted fact that the mother of the Plaintiffs died intestate in the year 1993. As above discussed, the property which was allotted to the share of Hindu Women of her husband, it became absolute property as per Section 14 of Hindu Succession Act, 1956. So in the instant case, 1/3 share allotted to Krishnavva as per the Hindu Women’s Rights to property Act, 1937, it became absolute property of Krishnavva after coming into force of 1956 of Hindu Succession Act and it is also admitted fact that she died intestate in the year 1993. Hence, the Plaintiffs No.1 and 2 and the father of the Defendants No.1 to 5 are entitled for equal share in the 1/3^rd share of Krishnavva.

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Now I coming to the important aspect in this case that as per the Defendants contention the properties mentioned in the schedule A Sl. No. 2 Block No.26, Sl.No.3 Block No.45, Sl. No.4 Block No.198, Sl. No.6 Block No.88 as per the Karnataka Village offices Abolition Act 1961 the said properties are re-granted in

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6 - NC: 2024:KHC-D:13006-DB RFA.CROB No. 100010 of 2018

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the year 1980 and again in the year 2000 in the name of Dharmanaik Shivanaik Patil. So, the said properties became self acquired properties of Dharmanaik Shivanaik Patil. It is also contention of the Defendants that the plaintiffs’ marriage took place prior to 1981. So they are not became a members of the Hindu undivided family. So they are not entitled for partition.”

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Sri. Arun L. Neelopanth submits that after the decision of the Hon’ble Supreme Court in the case of Vineeta Sharma v. Rakesh Sharma and others¹ it can no longer be held that daughter would be entitled only for a share in a notional partition and therefore this Court must interfere and grant one equal share to each of the daughters of the deceased Sri. Shiva Naik especially when it is not disputed that there is no partition after the demise of the Sri. Shiva Naik or Smt. Krishnavva. This indeed is salient in the facts and circumstances of the case where the relationship not being disputed and the conclusion that there is no partition inter se parties after the demise of Sri. Shiva Naik.

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1 [2020] 9 SCC 1

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7 - NC: 2024:KHC-D:13006-DB RFA.CROB No. 100010 of 2018

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As regards the cross objector’s next

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grievance with the civil Court denying a share in the lands in Block Nos.26, 45 and 198 of Chikkamalligawad village, Sri. Arun L. Neelopant submits [i] that re-grant of rights of these lands in the year 1980 is because Sri. Dharma Naik was holding a hereditary office after the demise of Sri. Shiva Naik, [ii] that the initial grant of rights was non-partible grant but upon payment of the prescribed premium the grantee gets absolute rights, [iii] that the settled proposition is when there is such a grant in favour of a family member who held the hereditary office it would be for the advantage of every member of the family subject to personal law and in the present case, it would be the provisions of Hindu Succession Act, 1956 as amended in the year 2005.

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In the light of these circumstances, this

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Court must opine that there is nothing on record to disbelieve the factual assertions as encompassed in the aforesaid submissions or the propositions of law. In fact, the propositions of law in this regard would be the decisions of Hon’ble Supreme Court in the case of Nagesh Bisto

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8 - NC: 2024:KHC-D:13006-DB RFA.CROB No. 100010 of 2018

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Desai Vs. Khando Tirmal Desai , reported in (1982) 2 SCC 79 as also this Court’s decision in Syed Basheer Vs. State of Karnataka ., reported in ILR 1984 KTK 159. Therefore, this Court must interfere with the civil Court’s impugned judgment and decree declaring that the cross objectors are entitled for 1/3^rd share in each of the suit schedule properties modifying the Civil Court’s judgment and decree accordingly.

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ORDER

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The Cross-objection is allowed, and the civil Court’s judgment and decree dated 28.04.2017 in OS No.85/2009 are modified declaring that the cross objectors are entitled for 1/3^rd share in each of the suit schedule properties.

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The Office is directed to draw preliminary decree as aforesaid, and there shall be no 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 LIST NO.: 1 SL NO.: 17

Smt. Sumitra W/O. Ramanayak Patil v. Sri. Ramanayak S/O. Dharamanayak Patil

Case brief

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Smt. Sumitra W/O. Ramanayak Patil v. Sri. Ramanayak S/O. Dharamanayak Patil

Case brief

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