Partly allowed

Sri Nandu S/O Narayan Naik v. Sri Gajanana

Karnataka HC11 Jul 2024RSA/1297/2007

Case brief

AI extract

What is this about?

Partition suit among family members over suit schedule properties. The first appellate court decreed partition granting the plaintiff a one-third share after holding an unregistered family arrangement (Ex.D-1) inadmissible even for collateral purposes. The High Court upheld that finding but modified the decree to grant one-third share each to plaintiff and defendants No.1 and 2.

What did the court decide?

First Appellate Court judgment modified: appellant/defendant No.1, respondent No.1/plaintiff and respondent No.2/defendant No.2 declared entitled to 1/3rd share each in suit properties; modified decre

Sri Nandu S/O Narayan Naik Vs Sri Gajanana — Partition | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC-D:9653 RSA No. 1297 of 2007

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 11^TH DAY OF JULY, 2024 BEFORE

¶4

THE HON'BLE MR JUSTICE C.M. POONACHA REGULAR SECOND APPEAL NO. 1297 OF 2007 (PAR-)

¶5

BETWEEN:

¶6

SRI NANDU S/O NARAYAN NAIK AGED ABOUT 38 YEARS, OCC: RYOT, R/O PAVEEN KURVA TARIBAGIL, HANDIPUR, HONNAVAR TALUK, KARWAR DISTRICT.

¶7

…APPELLANT

¶8

(BY SRI GANAPATI M. BHAT, ADVOCATE)

¶9

AND:

¶10

SRI GAJANANA S/O NARAYANA NAIK, AGED ABOUT 48 YEARS, OCC: COOLIE AND RYOT, R/O PAVEEN KURVA, TARIBAGIL, HANDIPUR, HONNAVAR TALUK, KARWAR DISTRICT.

¶11

Digitally signed by SAROJA HANGARAKI

¶12

Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

¶13

SMT. SAROJINI W/O GANESH NAIK, AGED ABOUT 40 YEARS, OCC: HOUSEHOLD, R/O TARIBAGIL, HEGDE, KUMTA TALUK.

¶14

SRI NARAYANA S/O JETTI NAIK, AGED ABOUT 82 YEARS, OCC: RYOT, R/O PARVEEN KURVA,TARIBAGIL, HANDIPUR, HONNAVAR TALUK.

¶15

(NOTE: VIDE ORDER DATED 21.09.2021 THE NAME OF RESPONDENT NO.3 DELETED DUE TO HIS DEATH AND APPELLANT, R1 AND R2 ARE HIS LEGAL HEIRS AS ALREADY ON RECORD)

¶16

…RESPONDENTS (BY SRI. J S SHETTY AND ASSTS, ADVOCATE FOR R1; SRI VIDYASHANKAR G. DALWAI, ADVOCTE FOR R2; SRI V.G.BHAT FOR R3

¶17

V/O/D 21.09.2021 APPELLANT, R1-R2 ARE LRS OF DECEASED R-3)

¶18

2 - NC: 2024:KHC-D:9653 RSA No. 1297 of 2007

¶19

THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 07.02.2007 PASSED BY THE CIVIL JUDGE (SR.DN.), HONNAVAR IN R.A.NO. 45/2005 AND CONFIRM THE JUDGMENT AND DECREE DATED 09.06.2005 PASSED BY THE ADDITIONAL CIVIL JUDGE (JR.DN.), HONNAVAR IN O.S.NO.44/2004 AND DISMISS THE PLAINTIFF’S SUIT WITH COST THROUGHOUT.

¶20

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

¶21

JUDGMENT

¶22

The present second appeal is filed under Section 100 of the Code of Civil Procedure¹ by the defendant No.1 challenging the judgment and decree dated 07.02.2007 passed in R.A.No.45/2005 by the Senior Civil Judge, Honavar² whereunder the suit for partition filed by the first respondent/plaintiff was dismissed by the Trial Court and decreed by the First Appellate Court awarding 1/3^rd share each to the plaintiff and defendants No.1 and 3. The claim of defendant No.2 for a share was dismissed.

¶23

The parties herein are referred to as per their

¶24

ranking before the Trial Court for the sake of convenience.

¶25

1 Hereinafter referred to as ‘CPC’

¶26

2 Hereinafter referred to as ‘First Appellate Court’

¶27

3 - NC: 2024:KHC-D:9653 RSA No. 1297 of 2007

¶28

3. The plaintiff and first defendant are brothers

¶29

and defendant No.2 is their sister. The third defendant is their father.

¶30

It is the case of the plaintiff that the suit properties belonged to one Jatti Timmayya Naik who was the ancestor of the plaintiff and defendants. The defendant No.3 was the son of the said Jatti Timmayya Naik. The wife of defendant No.3 who is the mother of plaintiff and defendants No.1 and 2 died on 15.10.1988. Since the claim of the plaintiff for partition was refused, the suit was filed.

¶31

The defendant No.1 filed written statement denying the case of the plaintiff. It was further contended that a Palupatti was executed on 17.11.2002 whereunder the parties had agreed to partition the property. It is further contended that in the event the Court was to come to a conclusion that the properties were to be divided, a share is required to be allotted to defendant No.1 also.

¶32

4 - NC: 2024:KHC-D:9653 RSA No. 1297 of 2007

¶33

The defendant No.2 filed a written statement claiming her 1/4^th share in the suit property. The defendant No.3 filed a written statement denying the partition dated 17.11.2002. The defendant No.3 also claimed for a share in the suit properties.

¶34

The Trial Court by its judgment and decree dated 09.06.2005 dismissed the suit. Being aggrieved, the plaintiff preferred R.A.No.45/2005. The First Appellate Court framed the following points for consideration:

¶35

“1. Whether the trial court is not justified in holding that the suit schedule properties are not the joint family properties?

¶36

2. Whether the trial court is not justified in holding that there is already prior partition and the plaintiff is not entitled for fresh partition as contended by the 1st defendant ?

¶37

3. Whether the parties to the suit are entitled to the reliefs as sought in the suit in respect suit schedule properties?

¶38

5 - NC: 2024:KHC-D:9653 RSA No. 1297 of 2007

¶39

4. Is it just and necessary to set aside the judgment and decree dated 9.6.2005 passed in O.S. No. 44/2004?

¶40

5. What decree or order?”

¶41

The First Appellate Court by its judgment and decree dated 07.02.2007, allowed the appeal and passed the following order:

¶42

“The regular appeal is allowed with costs against the respondents- defendants.

¶43

The judgment and decree dated 09.06.2005 passed in O.S. 44/2004 by the learned Addl. Civil Judge (Jr.Dn.), Honavar, is set aside, and thereby the suit of the plaintiff is decreed against the defendants No.1 & 3 as under: -

¶44

It is declared that the plaintiff is entitled to partition and separate possession of his 1/3^rd share over the suit schedule "A" to "C" properties by metes and bounds.

¶45

Further, the defendants No.1 & 3 are also entitled to partition and separate possession of their 1/3rd share each over the suit schedule "A" to "C" properties by metes and bounds.

¶46

6 - NC: 2024:KHC-D:9653 RSA No. 1297 of 2007

¶47

Further, the plaintiff and defendants are at liberty to make partition and separate possession of their respective shares in respect of suit schedule lands and house properties either by amicable settlement or by appointing Court Commissioner to that effect as provided under order XX rule 18 read with section 54 of Civil Procedure Code or in accordance with any other law for time being in force.

¶48

The claim of the defendant No.2 for partition and separate possession of her 1/4th share over the suit schedule "A" to "C" properties, is hereby dismissed.

¶49

The respondent No.1 is liable to pay costs of this appeal to the appellant.

¶50

Return L.C.R. to the trial court along with a copy of judgment.”

¶51

Being aggrieved, the present second appeal is filed. This Court by order dated 22.01.2009, admitted the above appeal and framed the following substantial questions of law:

¶52

“(i) Whether the lower Appellate Court is right and justified in holding that there was absolutely no

¶53

7 - NC: 2024:KHC-D:9653 RSA No. 1297 of 2007

¶54

prior partition and that Ex.D-1 being an unregistered document could not be looked into to show prior partition?

¶55

(ii) Whether the lower Appellate Court failed to take note of the admission made by the plaintiff in his cross-examination as referred to and relied upon by the trial Court in paragraph 15 of the judgment?”

¶56

Heard submissions of learned counsel, Sri.Vidyashaknar G Dalawai on behalf of Sri.Ganapati M Bhat for the appellant as well as for respondent No.2 and learned counsel, Sri.J.S.Shetty for respondent No.1.

¶57

It is forthcoming that the third defendant was arrayed as the third respondent in the above appeal and died on 21.09.2021.

¶58

It is submitted that admittedly since the suit properties are the family properties and having regard to the fact that the plaintiff and defendants No.1 and 2 are the remaining members of the family and having regard to the judgment of the Hon’ble Supreme Court in the case

¶59

8 - NC: 2024:KHC-D:9653 RSA No. 1297 of 2007

¶60

of Vineeta Sharma vs. Rakesh³ , the suit properties are required to be divided amongst plaintiff and defendants No.1 and 2 by 1/3^rd share each.

¶61

It is forthcoming that the First Appellate Court while considering the defence of the defendants that there was a prior partition vide Ex.D.1, has re-appreciated the factual matrix with regard to the said contention and noticed that on 17.11.2002, the parties had partitioned the properties both movable and immovable. The First Appellate Court has recorded a finding that from the contents of Ex.D.1, the parties were intending to make partition by metes and bounds in respect of not only immovable properties of more than ₹100/- but also movables as described in suit ‘A’ to ‘C’ of the schedule properties. However, the said document Ex.D.1 has not been registered in accordance with law and hence is inadmissible in evidence and cannot be considered for collateral purpose also. While recording the said finding,

¶62

3 AIR 2020 SC 3717

¶63

9 - NC: 2024:KHC-D:9653 RSA No. 1297 of 2007

¶64

the First Appellate Court has specifically noticed the basis of Ex.D.1 from the testimony of PW.1 as well as DW.2 and DW.3. Hence, the finding recorded by the First Appellate Court is just and proper and not liable to be interfered with.

¶65

Having regard to the aforementioned as well as having regard to the submissions made by both the learned counsels as noticed above, the substantial questions of law No.(i) is answered in the affirmative and No.(ii) in the negative.

¶66

Keeping in mind the submissions made by both the learned counsels, the suit properties being admittedly the properties of the family and the defendant No.1 who is the appellant also having claimed a share, the plaintiff and defendants No.1 and 2 are entitled to 1/3^rd share each in the suit properties.

¶67

In view of the aforementioned, the following:

¶68

10 - NC: 2024:KHC-D:9653 RSA No. 1297 of 2007

¶69

ORDER

¶70

i. The above appeal is partly allowed;

¶71

ii. The judgment and decree dated 07.02.2007 passed in R.A.No.45/2005 by the Senior Civil Judge, Honavar is modified to the extent of holding that the appellant/defendant No.1 as well as respondent No.1/plaintiff and respondent No.2/defendant No.2 are entitled to 1/3^rd share each in the suit properties;

¶72

iii. Modified decree to be drawn accordingly.

¶73

Sd/JUDGE

¶74

SH CT:GSM

¶75

List No.: 1 Sl No.: 53

Sri Nandu S/O Narayan Naik v. Sri Gajanana

Case brief

What is this about?

What did the court decide?

Sri Nandu S/O Narayan Naik v. Sri Gajanana

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Naite Mohammed Ali Vs Gawai Mohammed Bapu

Smt.Mehaboobi W/O Mahaboobsab Koppad Vs Makthumsab S/O Peersab Hanchinal

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

Bhagyodaya Education Society Vs Smt. Mallawwa W/O Sangappa Kalatippi

Girish S/O Premanand Jambavalikar Vs Pandurang Bhikaro Sunkeri

Narendra S/O. Premanand Jambavalikar Vs Pandurang Bhikaro Sunkeri