Dismissed

Narasappa Alias Arjun S/O. Shankrappa Bomble v. Chandrashekhar

Karnataka HC13 Dec 2024RSA/100044/2022

Case brief

AI extract

What is this about?

In this regular second appeal, the High Court of Karnataka dismissed the appeal and confirmed the lower courts' decree granting the son a share in ancestral property. The Court held that maintenance received does not extinguish coparcenary rights under the Hindu Succession Act and refused to admit additional evidence.

What did the court decide?

The regular second appeal was dismissed and the judgment and decree of the Courts below were confirmed.

Narasappa Alias Arjun S/O. Shankrappa Bomble Vs Chandrashekhar — Partition | Karnataka HC (2024)

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NC: 2024:KHC-D:18179 RSA No. 100044 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

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RSA NO. 100044 OF 2022 (PAR/POS)

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BETWEEN:

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Digitally
signed by
VISHAL
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.12.19
16:01:23
+0530

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NARASAPPA @ ARJUN S/O. SHANKRAPPA BOMBLE, AGE: 68 YEARS, OCC. AGRICULTURE, R/O. SHIRUR, TQ. AND DIST. BAGALKOTE-587156.

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RAMESH S/O. SHANKRAPPA BOMBLE (SINCE DECEASED BY HIS LRS.,)

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LAKSHMIBAI W/O. RAMESH BOMBLE, AGE: 52 YEARS, OCC. HOUSEWIFE, R/O. SHIRUR, TQ. AND DIST. BAGALKOTE-587156.

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3 DEEPA W/O. SURESH ROSANKAR, AGE: 40 YEARS, OCC. HOUSEWIFE, R/O. ZO-3, ADARSH NAGAR, NEAR A-1 BAKERY, TEEN DONGRI, GOREGAON WEST, MUMBAI, MAHARASHTRA-400104,

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NOW RESIDING AT SHIRUR, TQ AND DIST. BAGALKOTE-587156.

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KIRAN S/O. RAMESH BOMBLE, AGE: 32 YEARS, OCC. AGRICULTURE, R/O. SHIRUR, TQ. AND DIST. BAGALKOTE-587156.

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JYOTHI W/O. BASAVARAJ JADHAV, AGE: 33 YEARS, OCC. HOUSEWIFE, R/O. SUDI, TQ. AND DIST. GADAG-582211.

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KEERTI D/O. RAMESH BOMBLE, AGE: 24 YEARS, OCC. STUDENT, R/O. SHIRUR, TQ. AND DIST. BAGALKOTE-587156.

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NIKITA D/O. RAMESH BOMBLE, AGE: 19 YEARS, OCC. STUDENT, R/O. SHIRUR, TQ. AND DIST. BAGALKOTE-587156.

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RENUKA @ RENUKABAI W/O. PRABHU @ PRABHAKAR BOMBLE, AGE: 54 YEARS, OCC. HOUSEHOLD WORK, R/O. SHIRUR, TQ. AND DIST. BAGALKOTE-587156.

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ROOPABAI D/O. PRABHU @ PRABHAKAR BOMBLE, AGE: 34 YEARS, OCC. HOUSEHOLD WORK, R/O. SHIRUR, TQ. AND DIST. BAGALKOTE-587156.

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PARASHURAM D/O. PRABHU @ PRABHAKAR BOMBLE, AGE: 33 YEARS, OCC. PRIVATE EMPLOYEE, R/O. SHIRUR, TQ. AND DIST. BAGALKOTE-587156.

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NAGUBAI D/O. PRABHU @ PRABHAKAR BOMBLE, AGE: 30 YEARS, OCC. HOUSEHOLD WORK, R/O. SHIRUR, TQ. AND DIST. BAGALKOTE-587156.

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AMBUBAI D/O. PRABHU @ PRABHAKAR BOMBLE, AGE: 29 YEARS, OCC. HOUSEHOLD WORK, R/O. SHIRUR, TQ. AND DIST. BAGALKOTE-587156.

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KARAN @ KIRAN @ RAGHUVENDRA S/O. PRABHU @ PRABHAKAR BOMBLE, AGE: 30 YEARS, OCC. AGRICULTURE, R/O. SHIRUR, TQ. AND DIST. BAGALKOTE-587156.

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SHILPA D/O. PRABHU @ PRABHAKAR BOMBLE. AGE: 28 YEARS, OCC. HOUSEHOLD WORK, R/O. SHIRUR, TQ. AND DIST. BAGALKOTE-587156.

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… APPELLANTS

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(BY SRI. MRUTYUNJAYA TATA BANGI, AND SRI. P.P.HITTALAMANI, ADVOCATES)

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AND:

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CHANDRASHEKHAR CALLING AS S/O. NARASAPPA @ ARJUN BOMBLE, AGE: 39 YEARS, OCC. TAILOR, R/O. HOLE-ALUR, TQ. AND DIST. BAGALKOTE-587101.

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… RESPONDENT

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(BY SRI. SRIHARSH A NEELOPANT, ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 17.01.2020 PASSED IN R.A.NO.120/2011 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, BAGALKOT, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 25.08.2011 PASSED IN O.S. NO.8/2008 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, BAGALKOT, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

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ORAL JUDGMENT

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Assailing the concurrent finding of fact recorded

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by the Courts below, the defendants are before this Court, in this Regular Second Appeal.

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For the sake of convenience, the parties are referred to as per their rank before the trial Court.

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Suit seeking for the relief of partition and separate possession of his half share out of 1/3^rd share of defendant No.1. The propositus of the family was one Shankarappa, who died on 15.02.2007. His wife Kashibai predeceased him on 15.10.2004. The said Sankrappa and Kashibai had three children namely Narasappa @ Arjun, Prabhu @ Prabhakar and Ramesh. The plaintiff is the son of Narasappa @ Arjun, who is defendant No.1 herein; the second son of Shankarappa namely Prabhu @ Prabhakar died on 24.10.2007, leaving behind defendant Nos.3 to 8; defendant No.3 is the third son of the deceased Shankarappa.

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The family genealogical tree of the plaintiff and

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defendants is culled out as under:

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The case of the plaintiff is that Schedule “B” property are the ancestral property of the deceased Shankarappa and after his death, the plaintiff and defendants are in joint possession of the suit schedule property; that there is no partition effected in the suit schedule property and the plaintiff is entitled for his share.

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Defendant No.1 filed written statement inter alia

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denying the relationship shown in Schedule “A” property and the suit property described at schedule “B” property to

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be the ancestral joint family property of Shankarappa and they are in joint possession of the plaintiff and defendants.

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That defendant No.1-Narasappa filed petition M.C. No.12/1984 seeking dissolution of marriage during the pendency, by way of a mutual consent, the marriage was dissolved and the document was effected on 27.08.1987, at that time Gangubai-wife for herself and on behalf of her son Chandrashekhar - the plaintiff has received an amount of Rs.25,000/- in lieu of their share in the suit property which Narasappa had undivided share and the plaintiff having received Rs.25,000/- in lieu of his share, cannot seek for partition and separate possession and it is hit by the principles of estoppel.

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The trial Court based on the pleadings, framed the following issues:

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“(1) Whether plaintiff proves that himself and defendants constitute members of joint family and suit property are ancestral joint family property?

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(2) If so, what is the share of the plaintiff?

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(3) Whether defendants prove that, plaintiff took Rs.25,000/- from defendants in lieu of his share in suit property and maintenance in M.C.No.12/1984, and hence plaintiff has no share in the suit property?

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(4) Whether the defendants prove, the suit of the plaintiff is hit by principles of estoppel?

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(5) Whether the defendants prove, that suit of the plaintiff is barred by time?

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(6) Whether the defendants prove, that plaintiff has no cause of action to maintain the suit?

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(7) Whether the plaintiff is entitled for the relief sought for?

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(8) What order or decree?”

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In order to substantiate their claim, the plaintiff

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examined himself as PW1 and also examined one witness as PW2 and marked documents at Exs.P1 to P15. On the other hand, defendant No.1 examined himself as DW1 marked documents at Exs.D1 and D2.

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The trial Court based on the pleadings, oral and documentary evidence held that:

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(i) The plaintiff and defendants constitute the members of joint family and the suit property are the ancestral joint family property;

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(ii) The defendants have failed to prove that the plaintiff has received Rs.25,000/- from the defendant No.1 in lieu of his share in the suit property and the plaintiff is not entitled for any share.

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The trial Court by the judgment and decree held that, the plaintiff is entitled for half share in 1/3^rd share of defendant No.1 in respect of suit schedule “B” property. The suit in respect of Sl.Nos.9 to 11 of suit schedule “B” property was dismissed. The plaintiff did not prefer any appeal against the rejection of his prayer in respect of Sl.Nos.9 to 11 of the schedule properties

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Appeal was preferred by the defendants before

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the First Appellate Court. The First Appellate Court framed the following points for its consideration:

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“1. Whether the trial court has erred in holding that the plaintiff is entitled for half share in 1/3rd share of defendant No.1?

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2. Whether trial court erred in not appreciating that the plaintiff was estopped from claiming his share in the suit schedule item No.1 to 8 property when he already received his share through his mother in the proceedings held in M.C. No.12/1984?

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3. What order?”

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The First Appellate Court, while appreciating the entire oral and documentary evidence independently, arrived at a conclusion that the plaintiff is entitled for half share in the 1/3^rd share of defendant No.1 and the defendants have failed to establish that the plaintiff was estopped from claiming his share in the suit schedule item Nos.1 to 8 property in light of the receiving his share in M.C. No.12/1984. By the judgment and decree, the First Appellate Court dismissed the appeal confirming the judgment and decree of the trial Court.

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Aggrieved, the defendants are before this Court, in this Regular Second Appeal.

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Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent. Perused the materials available on record.

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Learned counsel appearing for the appellants contends that, the plaintiff cannot seek for partition during the lifetime of the original propositus i.e., Shankarappa as the property fell to his share in the compromise in O.S. No.38/1973 and the property being not divided amongst the sons of Shankarappa i.e., the father of the plaintiff and his two brothers, the plaintiff being the grandson of Shankarappa, the suit in the present form is not maintainable. That the trial Court has not framed any specific issue regarding the relationship of the plaintiff with that of defendant No.1 and in light of the same, the judgment and decree of the Courts below is opposed to well established principles of law and liable to be set aside and

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that there arises a substantial question of law to be framed in this Regular Second Appeal.

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Per contra, learned counsel appearing for the respondents justifies the judgment and decree of the Courts below and submits that, the grandfather of the plaintiff is not alive and the plaintiff is seeking for partition and separate possession in the ancestral joint family property of the plaintiff and defendants i.e., in the share of his father i.e., defendant No.1. Defendant No.1 in M.C. No.12/1984 has categorically admitted that, the plaintiff is his son and defendant No.1 agreed to pay a sum of Rs.25,000/towards the maintenance of his wife and the present plaintiff; having admitted the relationship of the plaintiff, defendant No.1 cannot now contend that, the plaintiff is not the son of defendant No.1, the First Appellate Court has rightly arrived at the conclusion that, the plaintiff is the son of defendant No.1 and is entitled for half share in 1/3^rd share of defendant No.1 in respect of Sl.Nos.1 to 8 of the suit schedule property. The concurrent findings of fact

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recorded by the Courts below do not warrant any interference and that there arises no substantial question of law to be framed in this present Regular Second Appeal and sought for dismissal of the Regular Second Appeal.

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This Court has carefully considered the rival contentions urged by the learned counsel appearing for the parties and perused the materials available on record.

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Along with the appeal, the appellants have filed two applications in I.A. Nos.2/2022 and 1/2024. Under the application in I.A. No.2/2022, the appellants have sought to produce the documents namely (i) marriage invitation card; (ii) birth certificate of the respondent; and in the affidavit accompanying the application, defendant No.1 / appellant herein wants to contend that the marriage of defendant No.1 with Gangubai had taken place on 23.05.1975 and the plaintiff was born on 13.12.1975 within the period of six months from the marriage and she was not born to defendant No.1.

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Further, that the marriage card was not available, which he intended to produce before this Court; that he found the same and produced along with the plaintiff’s date of birth. I.A. No.1/2024 is filed seeking to produce the documents namely (i) plaint in O.S. No.38/1973; (ii) decree in O.S. No.38/1973; (iii) compromise petition; & (iv) entire order sheet. The grounds made out to produce these documents is that, in O.S. No.14/1973 after the partition between the between the father of defendant No.1 - Shankarappa and his brothers, the property have fallen to the share of his father and assumed the character of self acquisition, and there is no evidence let in by the plaintiff to show that the property are the ancestral property in the hands of their father and after the death of the father, the property are acquired by way of intestate succession under Section 8 of the Hindu Succession Act, 1956 and the respondent born on the date of the death of his father; as per Section 8 of the Act, 1956, only class-I heirs are entitled to share in the suit schedule

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NC: 2024:KHC-D:18179 RSA No. 100044 of 2022

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property and during the lifetime of defendant No.1, the plaintiff could not maintain the suit for partition.

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It is also stated that, the documents are of the year 1973 and they could not be produced before the trial Court and after having found the same, the appellants seek to produce these documents, which are necessary for adjudication of this present appeal.

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Order 41 Rule 27 of CPC, 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

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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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It is trite to observe that, under Order 41 Rule 27 of CPC, additional evidence could be adduced in one of the three situations, namely (a) whether the trial Court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it, despite exercise of due diligence; and (c) whether additional

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evidence was necessary in order to enable the Appellate Court to pronounce the judgment or any other substantial cause of similar nature.

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It is equally well settled that the additional evidence cannot be permitted to be adduced so as to fill in the lacuna or to patch up the weak points in the case. The Apex Court in the case of N.KAMALAM (DEAD) AND ANOTHER VS. AYYASAMY AND ANOTHER¹ has held that, it is not open for any party at the stage of appeal to adduce any evidence so as to fill the lacuna and additional evidence cannot be permitted at the appellate stage. The documents sought to be produced by the appellants are the marriage card, the birth certificate, the plaint in O.S. No.38/1973, the decree in O.S. No.38/1973, the compromise petition and the entire order sheet. The documents sought to be produced is regard to the disputing the relationship of the plaintiff with that of defendant No.1 and that the plaintiff is not entitled for seeking partition in

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1 (2001) 7 SCC 503

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light of the property having fallen to the share of Shankarappa, the father of Narasappa - defendant No.1 in a partition and the plaintiff is not entitled for seeking share in light of no division between Narasappa, Prabhakar and Ramesh.

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The defendants though disputed the relationship

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in his written statement at paragraph No.1, it is stated as “relationship shown in schedule “A” property is incorrect and imagined for the purpose of the suit” , and at paragraph No.8 defendant No.1 averred that “at that time Gangubai for herself and on behalf of her son Chandrashekhar has also received an amount of Rs.25,000/- in lieu of their share in the suit schedule property and maintenance in which Narasappa had undivided share” . It is also stated that “from that date the plaintiff cannot be called as a member of the joint family of the defendants and he cannot claim any rights once again in the suit property”. The defendants on one breath dispute the relationship of the plaintiff and defendant No.1 and on the other hand takes a plea that in a

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compromise between his wife and the plaintiff on one hand and on the other hand the defendant no1, the wife and her son has received an amount of Rs.25,000/-, which is in lieu of the claim of maintenance of Gangubai.

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In the light of the categorical statement / averments made in the written statement and the evidence of DW1, the marriage of Gangubai with defendant No.1 and the plaintiff being born to Gangubai and defendant No.1 stands undisputed and now by way of additional documents, defendant No.1 cannot contend that the plaintiff is not the son of defendant No.1. The trial Court, while answering issue Nos.1 to 3 has categorically held that in M.C. No.12/1984, defendant No.1 has categorically admitted that the plaintiff is his son and maintenance was received by the plaintiff along with his mother. Defendant No.1 has categorically failed to establish that there is no relationship between the plaintiff and defendant No.1. Though a specific issue to that effect was not framed, the parties went in trial knowing fully well the nature of dispute

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and while answering issue Nos.1 to 3, the trial Court taking into consideration the oral and documentary evidence held that the relationship between the plaintiff and defendant No.1 stands proved.

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The documents sought to be produced by way of additional evidence is not necessary for the adjudication of the present appeal and the said applications in I.A. Nos.2/2022 and 1/2024 are rejected.

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The other ground made out by the defendants is that, the suit of the plaintiff is hit by principles of estoppel in light of the plaintiff having received an amount through his mother Gangubai under Ex.D2 in M.C. No.12/1984 and he is estopped from claiming his share in the suit schedule property, The receipt of maintenance is towards the financial constraints of the wife and the minor son - plaintiff at that time, which includes staying, clothing and other basic necessities and the maintenance amount received cannot be said to be towards the share of the minor son in the joint family ancestral property.

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Under the Hindu Succession Act, 1956, the son is

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a coparcener and he is entitled for share in the joint family ancestral property. The contention of the appellants that the plaintiff is not entitled for any share during the lifetime of Narasappa doesn't hold any water for the reason that Shankarappa, the father of the defendant No.1 received the property under partition and in the hands of his sons namely Narasappa and two sons, the property takes the character of joint family ancestral property and the plaintiff being the son of defendant No.1 is entitled for share in the share that would be allotted to defendant No.1

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Hindu is under a legal obligation to maintain his wife, his minor sons, his unmarried daughters and his aged parents, whether he possess any property or not. The application to maintain the relation is personal, legal and absolute in character and arises from the existence of the relationship between the parties. In the case of The State of Haryana Vs. Santra² , it was observed that the Section

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2 AIR 2000 SC 1888

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20 of the Hindu Adoption and Maintenance Act (for short “the H.A. & M Act”) and Section 125 of the Cr.P.C the legislature has cast the burden on a Hindu male, during his or her lifetime to maintain his or her legitimate or illegitimate children and his or her aged parents. Section 18 of HA and M Act provides for the maintenance of a wife by her husband during her lifetime. In all these cases, the right is against an existing person: husband, father, father in law, mother, son or daughter or as the case may be. After stating the right of all these persons, the Act proceeds in Section 21 to define persons who are defendants of a deceased Hindu, and in Section 22 lays down rules relating to the right of maintenance and defendants from the heirs of deceased Hindu or others who have inherited the estates of such deceased persons. Sections 21 and 22 may also be read with Section 23, which lays down that it shall be at the discretion of the Court, whether any and if so, what maintenance shall be awarded under the provision of this Act. The claim of maintenance and the maintenance received by a son would not preclude his right to claim

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share in the property of the father as the awarding of maintenance is to the sustenance of the child and the mother. The joint memo filed by the mother and the plaintiff herein in maintenance proceedings, cannot be a ground for the defendant No.1-father to say that plaintiff is not entitled for share in the ancestral joint family property as maintenance includes only provision for food, clothing, residence, education of the children and medical attendance and treatment.

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The Hindu Succession Act, 1956 grants a son the right to claim a share in the ancestral property, even if the son has entered into an agreement for maintenance along with his mother, such an agreement/ joint memo relates to his personal obligations or responsibilities but, it does not affect his right to ancestral property. The maintenance agreement is enforceable in terms of providing financial support, but they could not waive any right of the property unless specifically stated in the agreement. The case would be otherwise if the ancestral property has been partitioned

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and the son has received his share exclusively relinquished any right to it, then the agreement of maintenance may have more impact on the son’s claim. However, when the property remains undivided, the son retains his right to claim share even after the maintenance agreement, under the Hindu Succession Act, 1956 (for short “the Act, 1956”) since son are considered as coparceners (now the daughters as well in view of the amended act 2005) in the joint family property, which gives them a right to share in the ancestral property and the right is not automatically extinguished by agreement related to maintenance. The maintenance agreement does not indicate that the plaintiff has waived his right to seek partition of the ancestral joint family property.

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The contention raised by defendant No.1 that his wife was divorced and in M.C. No.12/1984 his wife and plaintiff have received the maintenance amount and the plaintiff is not entitled for any share in the suit schedule property is not acceptable for the reason stated supra and

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the First Appellate Court rightly arrived at a conclusion that the plaintiff is entitled for half share in 1/3^rd share of defendant No.1 -Narasappa.

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The manner in which the Courts below have

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assessed the entire oral and documentary evidence, this Court is of the considered view that, the same does not warrant any interference under Section 100 of CPC against the concurrent findings of fact recorded by the Courts below and no substantial question of law arises for consideration under Section 100 CPC in the present Regular Second Appeal and this Court pass the following:

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ORDER

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(i) The Regular Second Appeal is hereby by dismissed ;

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(ii) The judgment and decree of the Courts below stands confirmed.

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SD/-

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______________________ (JUSTICE K.S. HEMALEKHA)

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VNP / CT: PA LIST NO.: 1 SL NO.: 40

Narasappa Alias Arjun S/O. Shankrappa Bomble v. Chandrashekhar

Case brief

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Narasappa Alias Arjun S/O. Shankrappa Bomble v. Chandrashekhar

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