Partly allowed

Smt.Eramma W/O K.Thimmappa, v. K.T. Hanumanthappa

Karnataka HC9 Dec 2024RSA/100091/2016

Case brief

AI extract

What is this about?

Daughter of propositus's second wife sought partition against children of first and third wives. Court held items 2 and 8 were self-acquired of defendants 1 and 4, but items 1, 3, 5, 6, 7 and 9 were ancestral; plaintiff entitled to half share therein after third wife's share devolved on her.

What did the court decide?

Plaintiff granted 1/2 share in items 1, 3, 5, 6, 7 and 9 of 'B' schedule; judgment and decree below modified; suit dismissed for items 2 and 8.

Smt.Eramma W/O K.Thimmappa, Vs K.T. Hanumanthappa — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:18009 RSA No. 100091 of 2016

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 9^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 100091 OF 2016 (PAR)

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BETWEEN:

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SMT. ERAMMA W/O. K.THIMMAPPA, AGE: 75 YEARS, HINDU, OCC: HOUSEHOLD, R/O: KAKARLATHOTA, DISTRICT: BALLARI - 580028.

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…APPELLANT

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(BY SRI. G.B. SHASTRY, SR. COUNSEL FOR SMT. GIRIJA S. HIREMATH, 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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K.T. HANUMANTHAPPA S/O. LATE K.LINGAPPA, AGE: MAJOR, OCC: EX PRESIDENT CHAMBER OF COMMERCE, R/O: NEHARU COLONY, GANDHI NAGAR, BALLARI-580 028.

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K. THIPPAMMA W/O. K.LIN7GAPPA, AGE: MAJOR, OCC: HOUSEHOLD, R/O: ERAPPA COMPOUND, COWL BAZAAR, BALLARI. (DIED ON 16.05.2006)

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K.LOKAMMA W/O. LATE THIMMAPPA, HINDU, MAJOR,

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2 - NC: 2024:KHC-D:18009 RSA No. 100091 of 2016

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CARE OF EX-PRESIDENT, CHAMBER OF COMMERCE, NEHRU COLONY, GANDHI NAGAR, BALLARI.

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SMT. K. JANSILAKSHMI W/O. K.T. HANUMANTHAPPA, AGE: 74 YEARS, R/O: NEHRU COLONOY, GANDHI NAGAR, BALLARI.

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M. VIJAYAKUMAR S/O. LATE. M. TIPPAYYA AGE: 46 YEARS, R/O. KAKARLTOTA WARD NO.5, BALLARI.

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…RESPONDENTS

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(BY SRI. DINESH M. KULKARNI FOR R1 & R4; SRI. HARSH DESAI, ADVOCATE FOR R5; R3-SERVED BUT UNREPRESENTED; R2-DELETED VIDE ORDER DATED 01.03.2018)

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THIS RSA IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, 1908., AGAINST THE JUDGMENT AND DECREE DATED 16.10.2015 IN R.A.NO.23/2013 PASSED BY THE LEARNED II ADDL. DISTRICT JUDGE, AT: BALLARI, CONFIRMING THE JUDGMENT AND DECREE DATED 31.01.2013 IN O.S. NO.338/2005 PASSED BY THE LEARNED II ADDL. SENIOR CIVIL JUDGE, AT: BALLARY MAY KINDLY BE MODIFIED AND THE SUIT OF THE APPELLANT MAY KINDLY BE DECREED AS PRAYED FOR WITH COSTS.

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

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3 - NC: 2024:KHC-D:18009 RSA No. 100091 of 2016

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

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ORAL JUDGMENT

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This Regular Second Appeal is arising from the concurrent finding in a suit for partition. The plaintiff is in appeal. The relationship of the parties as shown in the plaint is admitted.

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One K.Lingappa was the propositus. He died in

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the year 1981. He had three wives. Each marriage took place after the demise of the earlier wife.

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Lakshamamma was the first wife, Achamma

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was the second wife and Thippamma was the third wife.

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Thippamma died issueless during the pendency

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of the suit.

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The suit is filed by Eramma, the daughter of Achamma. The suit is filed against children of first wife Lakshamamma. Lakshamamma had two children namely Hanumanthappa and Lokamma. Hanumanthappa is arrayed as defendant No.1.

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Thippamma, the third wife of propositus

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K.Lingappa is arrayed as defendant No.2. Lokamma, the daughter from Lakshamamma is arrayed as defendant No.3. Jansilakshmi, the wife of Hanumanthappa is arrayed as defendant No.4.

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The plaintiff filed a suit on the premise that the properties belonged to K.Lingappa the propositus and after his demise and the demise of her mother Achamma, she acquired right over the property.

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Defendant No.1 took a stand that items No.1, 3, 4, 5 and 6 in ‘B’ schedule are the ancestral properties. Defendant No.1 contends that item No.2 in ‘B’ schedule is the self-acquired property of defendant No.4. As far as item No.8 property is concerned, it is contended that property is allotted to defendant No.1 and he purchased the property on 07.04.1971 for Rs.1,662/-. Item No.9 property is said to be a residential house in item No.7.

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Defendant No.1 contends that item No.9

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property is sold prior to the suit, as such, the suit is not maintainable. It is also his contention that item No.9 being the residential house, the daughter is not entitled to claim share in the said property.

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The suit is dismissed in respect of item Nos.6 to 9 properties and decreed in respect of item Nos.1, 3, 4 and 5 properties and trial Court granted 1/6^th share to the plaintiff.

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Item No.2 property stands in the name of defendant No.4 and she makes a claim that it is her selfacquired property purchased under the registered sale deed dated 11.08.1986 and suit is dismissed insofar as item No.2 property is concerned.

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Aggrieved by the aforementioned decree, the plaintiff is in appeal.

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Sri G.B.Shastry, learned counsel appearing for the appellant would contend that suit ought to have been

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decreed in respect of all the properties as the nucleus to acquire the properties is established and the properties purchased in the name of defendants No.1 and 4, are the properties acquired from the income derived from the ancestral properties.

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It is also his contention that in view of amendment to Section 6 of the Hindu Succession Act, 1956, even if the properties are held to be the ancestral properties, the daughter is entitled to equal share as the previous partition is not raised as a defence. And insofar as item No.7 property is concerned, the sale deed is not produced to contend that the property is sold as stated in written statement. In the absence of any sale deed, the trial Court could not have dismissed the suit in respect of item No.7 property. He would also contend that even if it is assumed that the property is sold, since the property is acquired from the income from the ancestral properties, defendant No.1 alone has no right to sell the property and the said sale deed does not bind the plaintiff.

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7 - NC: 2024:KHC-D:18009 RSA No. 100091 of 2016

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Sri.Dinesh M. Kulkarni, learned counsel appearing for respondents No.1 and 4 submits that, item No.2 and item No.8 properties are self-acquired properties. Item No.2 is the self-acquired property of defendant No.4 who is the wife of defendant No.1, while item No.8 is the self-acquired property of defendant No.1, purchased from his income as he was employee in Punjab.

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Sri Kulkarni submits that the plaintiff, during cross-examination, has admitted that defendant No.1 was employed between 1967 and 1970, thereafter he left his employment in Punjab and returned to Ballari and worked as Contractor and had an independent source of income.

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As far as item No.2 property is concerned, it is his contention that his wife purchased the said property with the financial aid from her brother and father. Thus he would contend that the suit has to be dismissed with respect to the aforementioned two properties. It is also his further contention that, item No.9 is also his selfacquired property and the plaintiff has no share in the said

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8 - NC: 2024:KHC-D:18009 RSA No. 100091 of 2016

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property. It is also urged that survey No. 9 is a residential house, and the daughter is not entitled to a share in the residential property.

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Sri.Harsh Desai, learned counsel appearing for respondent No.5 would contend that, that he purchased the property from defendant No.4 under a registered sale deed dated 19.12.2017. The said item No.2 property was purchased by defendant No.4 from the funds of her parents and the sale proceeds from the property standing in her name. Thus, he would submit that the appeal be dismissed in respect of the property purchased by defendant No.5.

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This Court has considered the contentions raised at the Bar and perused the records.

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This appeal was admitted to consider the following substantial question of law:

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“In view of admission made by the defendant No.1 in his written statement, as to the properties in item Nos.1, 3, 4, 5 and 6 of ‘B’

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9 - NC: 2024:KHC-D:18009 RSA No. 100091 of 2016

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schedule being the ancestral properties, was it open to the Courts below to ignore such admission and to hold that these properties were not the ancestral properties and thereby deny a share therein?”

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On perusal of the records and considering the contentions raised at the Bar, this Court is of the view that one more substantial question of law is required to be framed as under:

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“Whether the Trial Court and the First Appellate Court were justified in granting 1/6^th share in respect of item No.1, 3, 4, 5 and 6 properties?

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The parties were heard on the additional

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substantial question of law as well.

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In the written statement, defendant No.1 has taken a stand that item No.8 property was purchased by him under the registered sale deed of 1971. It is his further stand that he was employed in Punjab between 1967 and 1970 and thereafter, returned to Ballari, and worked as contractor.

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10 - NC: 2024:KHC-D:18009 RSA No. 100091 of 2016

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The plaintiff in the cross-examination has admitted that defendant No.1 was working in Punjab between 1967 and 1970. Defendant No.1 returned to Ballari and was working as contractor. Thus, this Court is of the view that defendant No.1 had an independent source of income to purchase the property. It is also necessary to note that the sale deed would reveal that the property was purchased for ₹1,662/-. Since the employment of defendant No.1 between 1967 and 1970 in Panjab is admitted and since it is also admitted that he was working as contractor in Ballari, this Court is of the view that the property at item No.8 is the self-acquired property of defendant No.1.

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It is a well-settled position of law that a property standing in the name of an individual is presumed to be self-acquired unless proven otherwise. The burden lies on the plaintiff to establish that the property is the joint family property. Though the plaintiff asserts that there was ancestral property and the property at item

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No.8 was purchased using income from ancestral property the plaintiff has not led evidence to rebut the presumption of self acquisition in the name of defendant No.1 who had independent source of income.

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As far as item No.2 property is concerned, the said property stood in the name of defendant No.4, who is the wife of defendant No.1. Again there is a presumption with respect to the property standing in the name of a woman as her self-acquired property. The burden lies on the plaintiff, who alleges that the said property is the joint family property.

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Item No.2 property was purchased in the year 1986. The said property stands in the name of defendant No.4, who is the wife of defendant No.1. The sale deed would reveal that the property was purchased for ₹15,000/-. To substantiate the contention that the property belonged to defendant No.4, she has examined herself as DW2. And to substantiate her contention that she had independent source income to purchase item No.2

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property, Ex.D10 - sale deed is produced. From the said sale deed, it is evidence that defendant No.4 sold the property for ₹18,000/-.

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It is not the case of the plaintiff that the property which is sold under Ex.D10 is the joint family property belonging to both the plaintiff and defendants. Thus, this Court is of the view that defendant No.4 has substantiated her claim that item No.2 property is her selfacquired property. The plaintiff is unable to establish that item No.2 property was purchased using joint family income.

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Thus, defendant No. 5, who has purchased the property in 2017 from defendant No.4, has acquired absolute right over the property, and the plaintiff is not entitled to a share in the said property.

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As far as the other properties are concerned, namely item No.1, 3, 4, 5 and 6 of ‘B’ schedule properties, the Trial Court has dismissed the suit. There is a clear

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admission in the examination-in-chief, wherein defendant No.1 has stated that item No.1, 3, 4, and 6 properties are coparcenary properties, which originally belonged to his father.

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This being the position, the Trial Court could not have dismissed the suit in respect of item No.6 property.

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Regarding item No.7 and 9 properties are concerned, though the defendant No.1 has claimed that these properties are his self-acquired properties, no documents have been produced to show that the said properties are self-acquired properties. On the other hand, during cross-examination, the defendant No.1 admitted that item No.9 property, which is located within item No.7 property, is the ancestral property. Though he has taken a stand that the daughter is not entitled to a share in the residential house, this contention is not valid in view of amendment to Hindu Succession Act, 1956.

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As far as item No.1, 3, 4 and 5 properties are concerned, the Trial Court granted 1/6^th share. Now it is stated that defendant No.2, the third wife is no more and she died issueless. Her share would devolve upon the plaintiff and defendant No.1. Therefore, the plaintiff is entitled to half share to the plaintiff in respect of item No.1, 3, 4, 5, 6, 7 and 9 properties.

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For the reasons stated above, the judgment and decree passed by the Trial Court are to be modified. Hence the following:

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ORDER

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i. Appeal is allowed in part.

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ii. The judgment and decree dated

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16.10.2015 passed by the II Additional District Judge at Ballari, in R.A.No.23/2013, confirming the judgment

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and decree dated 31.01.2013 passed by

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the II Additional Senior Civil Judge,

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Ballari, in O.S.No.338/2005, are modified.

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iii. The plaintiff is entitled to ½ share in items

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No.1, 3, 5, 6, 7 and 9 properties in ‘B’ Schedule.

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iv. Defendant No.1 is entitled to ½ share in items No.1, 3, 5, 6, 7 and 9 properties in ‘B’ Schedule.

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v. The suit is dismissed concerning item No.2

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and 8 properties.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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AM – upto para 14 gab - para 15 to end CT:ANB List No.: 1 Sl No.: 58

Smt.Eramma W/O K.Thimmappa, v. K.T. Hanumanthappa

Case brief

What is this about?

What did the court decide?

Smt.Eramma W/O K.Thimmappa, v. K.T. Hanumanthappa

Case brief

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What did the court decide?

What the court decided

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