Partly allowed

Smt.Deviramma v. Sri Raja Naik

Karnataka HC26 Mar 2024RSA/1899/2013

Case brief

AI extract

What is this about?

Second appeal by daughters against reversal of their decree for partition of properties claimed as ancestral joint family property of their deceased father. Held that on his intestate death, all children share equally under Sections 6 and 8 Hindu Succession Act; partial partition reasoning rejected; relief granted for items 1 and 2 only.

What did the court decide?

First appellate court judgment set aside as to items 1 and 2; plaintiffs and defendants 2-3 held entitled to equal shares therein; dismissal upheld for item 3.

Smt.Deviramma Vs Sri Raja Naik — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:13693 RSA No. 1899 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF MARCH, 2024 BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 1899 OF 2013 (PAR-)

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BETWEEN:

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1 . SMT.DEVIRAMMA, AGED ABOUT 46 YEARS, W/O NARAYANA NAIK,

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R/O VINAYAKANAGARA, COURT ROAD, NEAR GOVERNMENT PRIMARY SCHOOL, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT.

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2 . SMT. SUMITHRAMMA, AGED ABOUT 42 YEARS, S/O BHADRA NAIK, R/O BEHIND C.V.G. COLLEGE, DABASPET, SOMAPURA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT.

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CHANDRASHEKAR LAXMAN KATTIMANI Digitally signed byCHANDRASHEKAR LAXMAN KATTIMANI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2024.04.03 16:04:14 +0530

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3 . SMT. SHANTHAMMA, W/O AYYANNA, AGED ABOUT 36 YEARS, R/O GOLLAHALLI (GOUDARA MANE), TUBAGERE HOBLI, ANTARAHALLI POST, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT, AT PRESENT C/O D. VEERABADRAPPA, NO.161, 1^ST MAIN, 5^TH CROSS, KAVALBYRASANDRA, R.T. NAGAR, BANGALORE 560 032.

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...APPELLANTS

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(BY SRI SIDDESWARA N.K., & SRI K.V. GOPALA, ADVOCATES)

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2 - NC: 2024:KHC:13693 RSA No. 1899 of 2013

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AND:

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1 . SRI RAJA NAIK, S/O LAKSHAMANA NAIK, SINCE DEAD: THE APPELLANTS 1 TO 3 & RESPONDENTS 2 & 3 ARE TREATED AS LRs OF RESPONDENT NO.1

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2 . SRI. VENKATESH NAIK AMENDED V/O DATED 06.04.2022 S/O RAJA NAIK, MAJOR,

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3 . SRI NARASIMHA MURTHY S/O RAJA NAIK, MAJOR, ALL ARE R/O GOLLAHALLI (GOUDARA MANE) TUBAGERE HOBLI, ANTARAHALLI POST, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT.

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…RESPONDENTS

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(BY SMT. DAYAMANI S., ADVOCATE FOR R1-R3) (APPELLANTS 1-3, R2 & R3 ARE LR’S OF DECEASED R1)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 02.09.2013 PASSED IN R.A.NO.118/2012 ON THE FILE OF THE IV ADDL. DISTRICT & SESSIONS JUDGE, DODDABALLAPUR, BANGALORE RURAL DISTRICT, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DTD 25.2.2012 PASSED IN O.S.NO.448/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., DODDABALLAPUR. TRAIL COURT DECREED THE SUIT. APPELLATE COURT ALLOWED THE APPEAL SUIT FOR PARTITION AND SEPARATE POSSESSION.

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THIS REGULAR SECOND APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED FOLLOWING:

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3 - NC: 2024:KHC:13693 RSA No. 1899 of 2013

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JUDGMENT

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Challenging judgment and decree dated 02.09.2013 passed by IV Additional District and Sessions Judge, Doddaballapura, Bangalore Rural District, Bangalore in RA no.118/2012, this appeal is filed.

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Appellants herein were plaintiffs no.1 to 3, while respondents herein were defendants in O.S.no.448/2007 and will be referred to as such herein. O.S.no.448/2007 was filed for relief of partition and separate possession of 1/6^th share to each of plaintiffs etc. in immovable property bearing Sy.no.32/2 measuring 1.2 acre in Tirumagondanahalli, Tubagere Hobli, Doddaballapura; house property bearing no.35 measuring 40 X 50 ft. situated at Gollahalli, Hadonahalli Gram Panchayat, Doddaballapura and 24 tolas of gold ornaments, (hereinafter referred to as ‘suit properties’).

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In plaint, it was stated that plaintiffs were sisters and defendants no.2 and 3, their brothers. It was stated that defendant no.1 was their father. It was stated that one Sri Lakshma Naik, grandfather of plaintiffs was

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4 - NC: 2024:KHC:13693 RSA No. 1899 of 2013

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propositus. He had three sons, namely, Keshva Naik, Raja Naik and Sakkare Naik and plaintiffs hailed from branch of Raja Naik - defendant no.1.

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It was stated that propositus was holding extent of 4.2 acres at Tirumagondanahalli apart from house properties and gold and in partition between his sons, defendant no.1 got extent of 1.2 acre in Sy.no.32/2, house property bearing no.35 situated at Gollahalli with flour mill and house property situated at Rosipura, Court road, Municipal colony, Doddaballapura, apart from 24 tolas of gold. It was stated, said properties were ancestral joint family properties. It was further stated, out of income derived from above properties, defendant no.1 purchased movable properties namely, mini auto and Tata-Sumo vehicles, which were subsequently sold. It was stated that defendant no.1 was working in K.E.B. but, his earnings were barely sufficient for maintaining family.

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It was stated, suit properties being joint family properties, plaintiffs had equal share and demanded same from defendant no.1. But, on ill advice of defendants no.2

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and 3, said request was postponed on one or other pretexts. Plaintiffs thereafter got issued legal notice calling upon defendant no.1 to effect partition. But, defendant no.1 immediately sold away movable properties such as Tata-Sumo vehicle and also attempted to cut and remove Eucalyptus trees standing on Sy.no.32/2, with intention to deprive plaintiffs of their share. Therefore, plaintiffs got issued another legal notice calling upon defendants to refrain from such activities and reiterated their demand for partition. Failure to respond was cause of action to file suit for partition and accordingly, suit was filed.

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On service of suit summons, defendant no.1 filed written statement, denying all plaint averments except relationship. Claim that suit properties were ancestral joint family properties and allotted to share of defendant no.1 in partition were denied.

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It was stated defendant no.1 was working as lineman in K.E.B. who did not have any ancestral properties. He had got plaintiff no.1 married in year 1982, by spending huge amount. Apart from same, sum of

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Rs.80,000/- was paid to her while she was building her house. Further sum of Rs.50,000/- was for treatment of her husband Narayana Naik. And Rs.40,000/- given at time of marriage of her daughter - Bhagya. It was further stated, he had provided for education of plaintiff no.3 up to S.S.L.C. after which, she was residing separately without his consent.

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It was stated, item no.2 of suit properties was constructed from his own earning after site was sanctioned by gram panchayat in his name and was his self acquired property. Since he was in need of money, it was sold to defendant no.2 and flour mill was managed by his wife Manjula. Loan obtained for flour mill was discharged and there were no Eucalyptus trees on land in Sy.no.32/2. It was stated, since suit properties were self acquired properties, plaintiffs were not entitled for partition.

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Based on pleadings, trial Court framed following:-

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ISSUES:

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Whether the plaintiffs prove that suit schedule properties are the joint family and ancestral properties of the plaintiffs and defendants?

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Whether the plaintiffs prove that they are in joint possession and enjoyment of the suit schedule properties?

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Whether the defendant no.1 proves that the suit schedule properties are the self acquired properties of him?

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Whether the plaintiffs are entitled share in the suit schedule properties as prayed for?

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What order or decree?

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In order to prove their case, plaintiff no.3 was

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examined as PW1 and Exs.P1 to P14 got marked. On behalf of defendants, defendant no.2 was examined as DW1 and Exs.D1 to D8 got marked.

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On consideration, trial Court answered issues no.1, 2 and 4 in affirmative, issue no.3 in negative and issue no.5 by decreeing suit and holding plaintiffs entitled for 1/6^th share each in suit properties. It also held they were entitled for separate possession of their shares.

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Aggrieved by said judgment and decree, defendants preferred appeal in RA no.118/2012 on several

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grounds. It was contended, judgment and decree passed by trial Court was opposed to facts of case and evidence on record without proper appreciation of evidence. It was specifically contended that trial Court committed manifest error in disbelieving documents produced by defendants. Though plaintiffs had failed to show item no.2 of suit properties was joint family property as it was self acquired property of defendant no.1, and without any evidence to show existence of item no.3, trial Court had blindly decreed suit. It was contended that orders passed by revenue authorities established that defendant no.1 was in exclusive possession and therefore, trial Court had erred in granting decree.

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Based on above contentions, first appellate

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Court framed following points for its consideration:-

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Whether the impugned judgment and decree passed by the trial Court under appeal, is perverse capricious and arbitrary and it calls for any interference by this Court?

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What order?

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On consideration, point no.1 was answered in affirmative and point no.2 by allowing appeal, setting aside judgment and decree passed by trial Court and dismissing suit, but, by reserving liberty to file suit after accrual of cause of action.

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Assailing judgment and decree passed by first appellate Court, plaintiffs are in appeal.

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Sri N.K.Siddeswara, learned counsel for plaintiffs submitted trial Court had on appreciation of evidence on record, rightly decreed plaintiffs’ suit for partition. There was no dispute about plaintiffs and defendants no.2 and 3 being children of defendant no.1. It was submitted, when material on record indicated that suit properties fell to share of defendant no.1 in partition, nature of suit properties in hands of defendant no.1 would be as ancestral joint family properties, in presence of plaintiffs and defendants no.2 and 3.

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It was submitted fact that item no.1 of suit properties had fallen to share of defendant no.1 in oral partition with his brothers, was established by mutation

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order at Ex.P6. It was submitted despite contending that item no.1 of suit properties was purchased by defendant no.1 out of income derived from his employment, absolutely no material was placed on record to substantiate same. It was submitted burden of establishing any property as self acquired property would lie on person making such assertion and in case of failure, said property would be deemed joint family property. Such being case, conclusion by first appellate Court to contrary was perverse and capricious calling for interference.

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Insofar as item no.2, it was submitted that same was constructed out of earning from item no.1 and 24 tolas of gold was left behind by their mother. On considering said aspect, trial Court decreed suit in respect of 3 items of suit properties. It was submitted that first appellate Court also observed that item no.1 of suit properties was ancestral. It observed that as per grant certificate-Ex.D1, item no.2 was self acquired property of defendant no.1. It observed that during life time of defendant no.1, plaintiffs would have no claim insofar as

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NC: 2024:KHC:13693 RSA No. 1899 of 2013

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item no.2. It therefore held that during life time of defendant no.1, partition sought would be partial partition which would be impermissible in law and dismissed entire suit. It was submitted that such conclusion was highly irregular and contrary to settled principles.

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It was submitted that during pendency of suit, defendant no.1 died and memo was filed treating plaintiffs and defendants no.2 and 3 as his legal heirs.

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It was submitted that finding first appellate Court was unsustainable in law without considering that Ex.P6 was Mutation Extract showing that all three sons of Lakshmi Naik divided Sy.No.32/2 and extent of 1.2 acre fell to share of defendant no.1. Further, Exs.P1 to P5 – Record of rights, in particular Ex.P2, showed that name of defendant no.1 was entered in respect of 1.2 acre in Sy.no.32/2, in partition. Thus, finding of first appellate Court was contrary to said documentary evidence on record and therefore perverse.

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It was further submitted that in crossexamination of DW1, he categorically admitted defendant

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12 - NC: 2024:KHC:13693 RSA No. 1899 of 2013

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no.1 was working as lineman in K.E.B. and income was sufficient to lead life and education of children. Therefore, contention of any part of suit properties being self acquired properties was gravely unsubstantiated. On contrary, it would support presumption that house on item no.2 was constructed from out of joint family income. It was submitted, plea of oral partition when supported by entries in public records could be held established. Therefore, plaintiffs were entitled for share in view of law laid down by Hon'ble Apex Court in Vineeta Sharma vs.

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Rakesh Sharma and others reported in AIR 2020 SC 3717.

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Even observation of first appellate Court about accrual of cause of action had since withered. Therefore, ground on which first appellate Court had denied relief to plaintiffs did not subsist. Hence, impugned judgment and decree was liable to be set aside. On above grounds, learned counsel sought for answering substantial questions of law in favour of plaintiffs and to allow their appeal.

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On other hand, Smt.Dayamani S., learned

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counsel for defendants sought to oppose appeal. It was submitted there was no specific evidence led to establish nature of properties of defendant no.1 as ancestral undivided joint family properties. It was submitted entry in column no.10 of Ex.P7 showed nature of interest in item no.1 of suit properties was ‘Darkhast’. Therefore, item no.1 was self acquired and not amenable to partition. Further, plaintiffs failed to establish that item no.2 of suit properties was acquired by defendant no.1 from out of joint family income, by producing sale deed.

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It was submitted, Ex.D1 grant certificate issued by Tahsildar, Doddaballapura, established that item no.2 of suit properties was not ancestral joint family property, but, self acquired property of defendant no.1. Therefore, in absence of specific pleading and proof that it was put into common hotch-potch, first appellate Court was justified in denying relief.

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It was submitted that except bare pleadings, there was absolutely no material to establish existence of

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NC: 2024:KHC:13693 RSA No. 1899 of 2013

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item no.3 of suit properties and therefore, Trial Court was not justified in granting relief even in item no.3. Hence, first appellate Court was justified in dismissing suit insofar as items no.2 and 3.

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From above, reason for dismissal of suit by first appellate Court was its findings regarding nature of suit properties, which would be finding of fact, same could not be interfered with in second appeal. Hence sought for its dismissal.

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Heard learned counsel and perused impugned judgment and decree and records. Appeal was admitted on

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01.10.2020 to consider following substantial questions of

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law:-

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1. Whether the findings recorded by first Appellate Court on facts is vitiated by non-consideration of relevant evidence?

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1. Whether the finding on partial partition is sustainable in law?

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From above, it is seen that there is no dispute

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about plaintiffs and defendants belonging to same family. There is also no dispute about item no.2 of suit properties

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being granted to defendant no.1. Admittedly, defendant no.1 was working in K.E.B. While plaintiffs claim that item no.1 of suit properties fell to share of defendant no.1 in partition amongst children of plaintiffs’ grandfather i.e. propositus and that item no.2 was acquired from joint family income, since income of defendant no.1 from employment was sufficient only to provide for and maintain family, and therefore, available for partition; defendants deny existence of item no.3, claim item no.2 to be self acquired property of defendant no.1 as it was granted to him by Tahsildar and therefore, plaintiffs could not seek for partition during lifetime of defendant no.1.

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While passing judgment and decree, trial Court observed that Ex.P6 Mutation Extract in respect of 1.2 acre of Sy.no.32/2 would indicate that same was allotted to share of defendant no.1 in oral partition between children of propositus. It therefore concluded that item no.1 of suit properties was joint family property. Referring to admission by DW1 that income of defendant no.1 from salary was sufficient only to maintain family, it concluded

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even item no.2 of suit properties was joint family property. On said findings, trial Court decreed suit.

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First appellate Court however reversed decree mainly on ground that Ex.D1 established that item no.2 of suit properties was individual grant in favour of defendant no.1. It observed that there was absolutely no material to establish existence of item no.3 of suit properties. Though it concluded that item no.1 of suit properties was ancestral property, it held that plaintiffs would not be entitled for partition in item no.2 during lifetime of defendant no.1. It thus held that partition sought by plaintiffs in items no.1, 2 and 3 of suit properties would amount to seeking partial partition. On said reasoning, it upset findings of Trial Court and dismissed suit by granting liberty to file fresh suit after death of defendant no.1.

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At outset, though there is some dispute about nature of items no.1 and 2 of suit properties, in view of intestate death of defendant no.1 during course of proceedings, regardless of nature of properties, plaintiffs as daughters and defendants no.2 and 3 as sons of

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defendant no.1 would be entitled for equal share, either under Section 6 or Section 8 of Hindu Succession Act.

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From findings of trial Court as well first appellate Court, nature of item no.1 of suit properties as ancestral property of defendant no.1 is not in dispute. Ex.P6-Mutation Extract and entries in column no.10 of Ex.P2 to 5-records of rights, would substantiate conclusion of both Courts that item no.1 of suit properties was joint family property. In view of ratio in Vineeta Sharma’s case (supra), plaintiffs being daughters would be entitled for equal share in item no.1 even under Section 6 of Hindu Succession Act.

¶103

Perusal of Ex.D1 would indicate that it was granted to defendant no.1. Though there is dispute about source of income for construction of house and flour mill therein, defendants have failed to lead any evidence to substantiate that it was constructed from separate income. In any case, in view of death of defendant no.1 intestate, plaintiffs and defendants no.2 and 3 would be entitled to equal share under Section 8 of HSA.

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NC: 2024:KHC:13693 RSA No. 1899 of 2013

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Insofar as item no.3, during cross examination,

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PW1 has admitted that suit was confined to item no.1 of

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suit properties only. There is also no documentary or other reliable evidence to substantiate its existence, except pleading. Therefore, judgment and decree passed by trial Court insofar as item no.3 would be without evidence. Consequently, judgment and decree passed by first appellate Court dismissing suit insofar as item no.3 would be justified.

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Reasoning of first appellate Court that during lifetime of defendant no.1, plaintiffs suit for partition insofar as item no.2 of suit properties would amount to seeking partial partition insofar as item no.1, would be wholly contrary to settled legal principles apart from militating against reason. There was no justification for first appellate Court to have denied relief even in respect of item no.1.

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Consequently, substantial question of law (a) is answered in ‘affirmative’ and (b) in ‘negative’, insofar as items no.1 and 2 of suit properties. Hence, following:-

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NC: 2024:KHC:13693 RSA No. 1899 of 2013

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ORDER

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Appeal is allowed, judgment and decree dated 02.09.2013 passed by IV Additional District and Sessions Judge, Doddaballapura, Bangalore Rural District, Bangalore in RA no.118/2012 is set aside, only in respect of items no.1 and 2 of suit properties.

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It is held that plaintiffs and defendants no.2 and 3 would be entitled for equal share in items no.1 and 2 of suit properties.

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Sd/JUDGE

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Grd/VMB

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List No.: 19 Sl No.: 2

Smt.Deviramma v. Sri Raja Naik

Case brief

What is this about?

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Smt.Deviramma v. Sri Raja Naik

Case brief

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