Dismissed

Smt. Kallawwa, W/O Ambleppa Hebasur, v. Kallappa, S/O Ambleppa Hebsur

Karnataka HC10 Jul 2024RSA/100570/2017

Case brief

AI extract

What is this about?

Court dismissed a second appeal challenging partition. Holding that property alienated in 1997 falls outside Section 6(1) read with its 2005 amendment proviso as the cut-off date was December 20, 2004. Found no substantial question of law.

What did the court decide?

Appeal dismissed as being devoid of merit at the stage of admission itself; no order as to costs.

Smt. Kallawwa, W/O Ambleppa Hebasur, Vs Kallappa, S/O Ambleppa… — Partition | Karnataka HC (2024)

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NC: 2024:KHC-D:10358 RSA No. 100570 of 2017

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10^TH DAY OF JULY, 2024 BEFORE

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THE HON'BLE MR JUSTICE C.M. POONACHA REGULAR SECOND APPEAL NO. 100570 OF 2017 (PAR-)

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BETWEEN:

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SMT. KALLAWWA W/O AMBLEPPA HEBASUR, AGED: 76 YEARS, OCC: HOUSEHOLD WORK, R/O: SHIRKOL VILLAGE, TQ: NAVALGUND-582208, DIST: DHARWAD.

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SMT. PARVATEWWA W/O GANGAPPA GIDDANNAVAR, AGED: 58 YEARS, OCC: HOUSEHOLD WORK, R/O: BYAHATTI VILLAGE, TQ: HUBBALLI-580020, DIST: DHARWAD.

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Digitally signed by SAROJA HANGARAKI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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SMT. IRAWWA W/O IRAPPA MUGALI @ TADAKOD, AGED: 46 YEARS, OCC: HOUSEHOLD WORK, R/O: TELIMORAB VILLAGE, TQ: NAVALGUND-582208, DIST: DHARWAD.

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SMT. MALLAWWA W/O BASAPPA TADAKOD, AGED: 44 YEARS, OCC: HOUSEHOLD WORK, R/O: PUDAKALAKATTI VILLAGE, TQ: NAVALGUND-582208, DIST: DHARWAD.

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…APPELLANTS

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(BY SRI MADANMOHAN M. KHANNUR AND C.K.NARENDRA, ADVOCATES)

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AND:

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KALLAPPA S/O AMBLEPPA HEBSUR, AGED: 56 YEARS, OCC: AGRICULTURE, R/O: SHIRKOL VILLAGE, TQ: NAVALGUND-582208, DIST: DHARWAD.

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RUDRAPPA S/O AMBLEPPA HEBASUR, AGED: 51 YEARS, OCC: AGRICULTURE, R/O: SHIRKOL VILLAGE, TQ: NAVALGUND-582208, DIST: DHARWAD.

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SMT. DRAKSHAYANI W/O DODDABASAPPA GUNDAPPANAVAR, AGED: 75 YEARS, OCC: HOUSEHOLD WORK, R/O: MAHANTNAGAR, KELAGERI ROAD, DHARWAD-580009.

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RENUKA @ RENAVVA D/O DODDABASAPPA GUNDAPPANAVAR, AGED: 48 YEARS, OCC: HOUSEHOLD WORK, R/O: MAHANTANAGAR, KELAGERI ROAD, DHARWAD-580009.

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MAHANTESH S/O DODDABASAPPA GUNDAPPANAVAR, AGED: 46 YEARS, OCC: BUSINESS, R/O: MAHANTANAGAR, KELAGERI ROAD, DHARWAD-580009.

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…RESPONDENTS

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(BY SRI C.S.SHETTAR

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AND KAVYA C. SHETTAR, ADVOCATE FOR R3 & R5; R1, R2 AND R4 SERVED)

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THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO SET AISE THE JUDGMENT AND DECREE DATED 27.04.2017 IN R.A.NO.118/2015 PASSED BY THE COURT OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, DHARWAD AND JUDGMENT AND DECREE DATED 30.06.2015 IN O.S.NO.231/2011 PASSED BY THE COURT OF SENIOR CIVIL JUDGE, NAVALGUND AND DECREE THE SUIT BY AWARDING THE SHARE SUIT SCHEDULE PROPERTY ITEM NO.1 AS PRAYED FOR.

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

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NC: 2024:KHC-D:10358 RSA No. 100570 of 2017

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JUDGMENT

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The present second appeal is filed by the plaintiffs challenging the judgement and decree dated 27.04.2017 passed in RA No.118/2015 by the Court of II Additional District and Sessions Judge and Special Judge, Dharwad¹ and the judgement and decree dated 30.06.2015 passed in OS No.231/2011 by the Court of the Senior Civil Judge, Navalgund² whereunder, the suit for partition and separate possession has been decreed by the Trial Court which has been affirmed by the First Appellate Court in so far as the suit item Nos.2 and 3 properties and dismissed in so far as suit item No.1 property concerned. The present second appeal filed by the plaintiffs is only in so far as the concurrent findings recorded by both the Courts dismissing the suit for partition as against the suit item No.1 property is concerned.

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1 Hereinafter referred to as ‘First Appellate Court’

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2 Hereinafter referred to as ‘Trial Court’

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The parties herein are referred to as per their rankings before the Trial Court for the sake of

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convenience.

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It is the case of the plaintiffs that one Andaneppa was the propositus of the family of the plaintiffs and defendant Nos.1 and 2. That the said propositus had two sons namely Ambleppa and Kallappa. The plaintiff No.1 is the wife of Ambleppa and plaintiff Nos.2 to 4 are their daughters. Defendant Nos.1 and 2 are the sons of Ambleppa. That the suit properties are two items of landed property in Sy. No.195/2 measuring 2 acres 36 guntas and Sy. No.195/48 measuring 3acres 20 guntas, as also a house property bearing VPC No.164/1 and open space bearing 164/2.

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It is the case of the plaintiff that the Ambleppa acquired the suit properties in a family partition that took place between himself and his brother Kallappa and the suit properties were inherited by the plaintiffs and the defendant Nos.1 and 2. That during his lifetime Ambleppa

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gave the suit property to defendant Nos.1 and 2 without giving any share to the plaintiffs. The defendant Nos.1 and 2 got mutated their names in respect of the suit properties. That the defendants are trying to sell the suit properties to deprive the plaintiffs of their share in the suit properties. That defendant Nos.1 and 2 had refused to effect partition when demanded by the plaintiffs. That defendant Nos.1 and 2 have stated that they have sold the suit land bearing Sy.No.195/2 measuring 2 acres 37 guntas to one Doddabasappa Gundappannavar for a total sale consideration of Rs.90,000/- through registered Sale Deed dated 20.05.1997. That defendant Nos.3 to 5 are the legal representatives of the said Doddabasappa Gundappannavar. That the defendant Nos.1 and 2 have sold the suit land in Sy. No.195/2 behind the back of the plaintiffs and that there was no family legal necessity for the defendant Nos.1 and 2 to sell the suit item No.1 property. That the sale of suit item No.1 property by the defendant Nos.1 and 2 are not binding on the plaintiffs. That the plaintiffs were not aware of the sale made by the

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defendant Nos.1 and 2. Hence, the plaintiff filed a suit for partition seeking for 1/6^th share, as well as for declaration to declare that the Sale Deed dated 20.05.1997 executed by defendant Nos.1 and 2 in respect of suit item No.1 property is not binding on the plaintiffs.

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The defendant Nos.1 and 2 have been placed ex-parte. The defendant Nos.3 to 5 entered appearance through their counsel. The defendant No.5 filed a written statement which was adopted by defendant No.3. The defendant No.4 filed a separate written statement. The allegation of the plaintiffs that the suit properties are the joint family properties of the plaintiffs and defendant Nos.1 and 2 are denied and it is contended that the husband of defendant No.3 purchased the suit item No.1 property from defendant Nos.1 and 2 for valuable sale consideration vide registered Sale Deed dated 20.05.1997 and the said sale was made by defendant Nos.1 and 2 for family necessity. It is further contended that since the date of purchase the husband of defendant No.3 has been

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NC: 2024:KHC-D:10358 RSA No. 100570 of 2017

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in possession of the suit property and after his death, the defendant Nos.3 to 5 have became the joint owners and they are in possession and enjoyment of the suit properties and have also paying the taxes. It is further contended that in the event the Court hold that the suit properties are the joint family properties, the suit item No.1 property be allotted to the share of defendant Nos.1 and 2.

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It is further contended by defendant No.4 that in respect of the said suit item No.1 property, she has filed a suit against defendant Nos.3 and 5 in OS No.83/2007 claiming 1/3^rd share which suit is pending consideration.

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Based on the pleadings of the parties, the Trial

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Court framed the following issues:

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“1. Whether the Plaintiffs prove that Suit Properties are joint family ancestral properties of themselves Defendants No.1 and 2?

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2. Whether the defendant No. 4 proves that he and Defendant No.3 and 5 are the joint owners and in possession of the Suit Property bearing R.S No.195/2 of Shirkol measuring 02 acres 36 guntas of Western portion?

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3. Whether defendant No. 4 proves that Plaintiffs Suit is barred by limitation?

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NC: 2024:KHC-D:10358 RSA No. 100570 of 2017

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4. Whether Defendants No.3 to 5 prove that Defendant No.1 and 2 sold the property bearing R.S No. 195/2 of Shirkol measuring 02 acres 36 guntas of Western portion for legal necessity?

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5. Whether the plaintiffs are entitled for the relief as prayed in the Plaint ?

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6. What order or decree?”

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8. The plaintiff No.2 examined herself as PW.1 and

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two witnesses as PW.2 and PW.3. Ex.P.1 to Ex.P.9 have been marked in evidence. The defendant No.5 examined himself as DW.1. Ex.D.1 and Ex.D.2 have been marked in evidence. The Trial Court vide its judgement and decree dated 30.06.2015, partly decreed the suit and passed the following order:

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“The Suit of the Plaintiffs is decreed in part as under,

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The Plaintiffs are entitled for 1/6 share each in the Suit Items No.2 and 3 properties and for partition of the same by metes and bounds and for separate possession thereof. Accordingly, the same shall be partitioned.

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The Plaintiffs are not entitled for partition of the Suit Item No.1 property.

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No Order as to costs.

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Draw Preliminary Decree accordingly.”

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NC: 2024:KHC-D:10358 RSA No. 100570 of 2017

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9. Being aggrieved, the plaintiff preferred RA

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No.118/2015. The plaintiffs/ appellants have filed an application under Order 41 Rule 27 of the CPC before the First Appellate Court seeking to produce certain documents.

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The First Appellate Court framed the following

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points for consideration:

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“1. Whether the appellants have shown that, the documents necessary ΙΑ.Νo.II under to determine is the real controversies in between the parties?

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2. Whether the appellants have shown that, the trial court has erred in holding that, the Sale Deed executed by the defendants No.1 and 2, Dt: 20.5.97 is binding on the plaintiffs?

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3. Whether the trial court has committed an error in not allotting 1/6th share in the suit item No.1 of suit properties bearing RS No.195/2 measuring 2 acres 36 Gs. to plaintiffs as contended?

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4. Whether the defendants No.3 to 5 have shown that the Sale Deed executed by D.1 and D.2 in favour of Doddabasappa dt: 20.5.97 is for the family necessity?

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5. Whether the impugned judgment and decree passed by the court below needs any interference by this court?

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6. What order?”

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The First Appellate Court vide its judgement

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and decree dated 27.04.2017 dismissed the application

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filed under Order 41 Rule 27 of the CPC as also dismissed the appeal and confirmed the judgement and decree passed by the Trial Court. Being aggrieved the present second appeal is filed.

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The learned counsel for appellant vehemently contends that the dismissal of the suit in respect of the suit item No.1 property is erroneous and is liable to be interfered with. It is further contended that the sale of the said property was not for family necessities.

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Per contra, learned counsel for respondent Nos.3 and 4 justifies the judgement and decree passed by the Trial Court and First Appellate Court and submits that the factual and legal position having been rightly noticed by both the Courts and concurrent findings having been recorded, the said finding are not liable to be interfered by this Court in the present second appeal.

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The submissions of the learned counsel for the appellants have been considered and the materials on record have been perused.

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The Trial Court while considering the case of the plaintiff with regard to item No.1 property, it was noticed that the defendant Nos.1 and 2 have sold the said suit item No.1 property to the husband of defendant No.3 vide registered Sale Deed dated 20.05.1997. That the plaintiffs were claiming the right of the suit property by virtue of Section 6(1) of the Hindu Succession Act, 1956³ (as amended in the year 2005). It is further noticed by the Trial Court that the proviso to Section 6(1) of the Act of 1956, has saved alienations and dispositions made prior to the cut-off date i.e., 20.12.2004. Hence, the suit item No.1 property having been alienated prior to the said date, the Trial Court recorded a finding that the plaintiffs are not entitled to a share in the suit item No.1 property.

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3 Hereinafter referred to as ‘Act of 1956’

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The First Appellant Court has re-appreciated the factual aspect of matter and noticed the proviso to Section 6(1) of the Act of 1956 and noticing that the alienation of the suit item No.1 property was made on 20.05.1997 and hence, in view of the fact that the said alienation is prior to the cut off date i.e., 20.01.2004 has dismissed the appeal of the plaintiffs and upheld the judgement and decree passed by the Trial Court.

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It is forthcoming from the aforementioned that admittedly, the suit item No.1 property was sold by defendant Nos.1 and 2 in favour of the husband of the defendant No.3 vide registered Sale Deed dated 20.05.1997 (Ex.D.1). The proviso to Section 6(1) of the Act of 1956 reads as follows:

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‘‘Provided that nothing contained in this subsection shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20^th day of December, 2004.’’

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It is clear from the aforementioned that the process of proviso specifically does not effect or invalidate any disposition or alienation having taken place prior to 20.12.2004. The alienation of the suit item No.1 property having been made on 20.05.1997, the question of the plaintiffs claiming right in the said property does not arise.

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The relevant factual matrix and the legal having been rightly noticed by the Trial Court and the First Appellate Court and concurrent findings having been recorded as noticed above.

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The appellants have failed in demonstrating

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that any substantial question of law arises for consideration in the present second appeal. Hence, the present appeal is dismissed as being devoid of merit at the stage of admission itself.

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List No.: 1 Sl No.: 25

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Sd/JUDGE

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PJ CT:GSM

Smt. Kallawwa, W/O Ambleppa Hebasur, v. Kallappa, S/O Ambleppa Hebsur

Case brief

What is this about?

What did the court decide?

Smt. Kallawwa, W/O Ambleppa Hebasur, v. Kallappa, S/O Ambleppa Hebsur

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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