Allowed

Shivaji S/O Appayya. Kotekar v. Smt.Neelu W/O. Krdri. Mrndale

Karnataka HC23 Nov 2024RSA/5680/2009

Case brief

AI extract

What is this about?

In a Regular Second Appeal regarding a partition suit and separate possession, the High Court of Karnataka allowed the appeal, set aside the lower appellate court's decree dismissing the suit, and held that the properties were joint family assets entitled to equal shares among the three sons of the propositus.

What did the court decide?

Regular Second Appeal allowed; judgment and decree of First Appellate Court set aside; plaintiff and co-heirs entitled to 1/3rd share of Appayya.

Shivaji S/O Appayya. Kotekar Vs Smt.Neelu W/O. Krdri. Mrndale — Partition | Karnataka HC (2024)

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NC: 2024:KHC-D:17120 RSA No. 5680 of 2009

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 23^RD DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

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REGULAR SECOND APPEAL NO. 5680 OF 2009 (PAR)

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BETWEEN:

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SHIVAJI S/O. APPAYYA KOTEKAR, AGE: 60 YEARS, OCC. AGRICULTURE, R/O. MANAGUTTI-591316, TQ. HUKERI, DIST. BELGAUM.

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… APPELLANT

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(BY SRI. RAVI S BALIKAI, ADVOCATE)

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Digitally
signed by
VISHAL
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.11.27
10:35:12
+0530

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AND:

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SMT. NEELU W/O. KEDARI SINCE DECEASED BY HER LRS., 1A. MARUTI S/O. KEDARI MENDALE, AGE: 50 YEARS, OCC. AGRICULTURE, R/O. MANAGUTTI-591309, TQ. HUKERI, DIST. BELAGAVI. 1B. SANJAY S/O. KEDARI MENDALE, AGE: 47 YEARS, OCC. AGRICULTURE, R/O. MANAGUTTI-591309, TQ. HUKERI, DIST. BELAGAVI. 1C. SMT. RENUKA W/O. SUBHASH KOTEKAR, C/O. MARUTI KEDARI MENDALE, AGE: 43 YEARS, OCC. AGRICULTURE, R/O. MANAGUTTI-591309, TQ. HUKERI, DIST. BELAGAVI. 1D. SMT. LAXMIBAI W/O. RAMESH GUDAGI, C/O. MARUTI KEDARI MENDALE,

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NC: 2024:KHC-D:17120 RSA No. 5680 of 2009

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AGE: 41 YEARS, OCC. AGRICULTURE, R/O. MANAGUTTI-591309, TQ. HUKERI, DIST. BELAGAVI. 2. BABU RAMU CHAVAN SINCE DECEASED BY HIS LRS., 2A. SNT, TAYAKKA W/O. BABU CHAVAN, AGE: 54 YEARS, OCC. HOUSEHOLD WORK, R/O. MANAGUTTI-591309, TQ. HUKERI, DIST. BELAGAVI.

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2B. SMT. AVAKKA W/O. PARASHURAM KOTEKAR, AGE: 34 YEARS, OCC. HOUSEHOLD WORK, R/O. MANAGUTTI-591309, TQ. HUKERI, DIST. BELAGAVI.

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2C. KRISHNA S/O. BABU CHAVAN AGE: 32 YEARS, OCC. AGRICULTURE, R/O. MANAGUTTI-591309, TQ. HUKERI, DIST. BELAGAVI.

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2D. PRAKASH S/O. BABU CHAVAN, AGE: 29 YEARS, OCC. AGRICULTURE, R/O. MANAGUTTI-591309, TQ. HUKERI, DIST. BELAGAVI.

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2E. SMT. LAXMI @ BABY W/O. RANABA SARAMBALE, AGE: 27 YEARS, OCC. HOUSEHOLD, R/O. KOT VILLAGE, TQ. HUKERI, DIST. BELAGAVI.

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KRISHNA JEEVAPPA KOTEKAR SINCE DECEASED BY HIS LRS.,

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3A. SMT. LAXMI W/O. KRISHNA KOTEKAR, AGE: 79 YEARS, OCC. HOUSEHOLD WORK, R/O. MANAGUTTI-591309, TQ. HUKERI, DIST. BELAGAVI.

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3B. JEEVAPPA S/O. KRISHNA KOTEKAR, AGE: 65 YEARS, OCC. AGRICULTURE, R/O. MANAGUTTI-591309, TQ. HUKERI, DIST. BELAGAVI.

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3 - NC: 2024:KHC-D:17120 RSA No. 5680 of 2009

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3C. PEERAJI S/O. KRISHNA KOTEKAR, AGE: 63 YEARS, OCC. AGRICULTURE, R/O. MANAGUTTI-591309, TQ. HUKERI, DIST. BELAGAVI.

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SAMBHAJI S/O. APPAYYA KOTEKAR, AGE: 57 YEARS, OCC. AGRICULTURE, R/O. MANAGUTTI-591309, TQ. HUKERI, DIST. BELAGAVI. 5. IRAPPA S/O. APPAYYA KOTEKAR, AGE: 52 YEARS, OCC. AGRICULTURE, R/O. MANAGUTTI-591309, TQ. HUKERI, DIST. BELAGAVI.

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SMT. PUTALABAI W/O. BHIMAPPA BHAGAI, AGE: 61 YEARS, OCC. AGRICULTURE, R/O. MANAGUTTI-591309, TQ. HUKERI, DIST. BELAGAVI.

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… RESPONDENTS

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(BY SMT. REKHA PATIL, ADVOCATE FOR R2 ( A TO E); SRI. ANAND ASHTEKAR, ADVOCATE FOR R1 (A TO D); SRI. BAHUBALI N KANABARGI, ADVOCATE FOR R2(A) TO R3(C); R4-NOTICE SERVED; R5-NOTICE SERVED; R6-NOTICE SERVED)

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THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.09.2009 PASSED IN R.A.NO.43/2007 ON THE FILE OF THE CIVIL JUDGE (SR.DN) HUKKERI, ALLOWING THE APPEAL BY SET ASIDING THE JUDGMENT AND DECREE PASSED IN O.S.NO.84/2000 DATED 24.07.2007 ON THE FILE OF THE CIVIL JUDGE (JR.DN) SANKESHWAR, AT SANKESHWAR, SUIT FILED FOR PARTITION AND POSSESSION.

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THIS APPEAL, COMING ON FOR DICTATION, 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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4 - NC: 2024:KHC-D:17120 RSA No. 5680 of 2009

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ORAL JUDGMENT

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Plaintiff is before this Court, in this Regular Second Appeal, assailing the judgment and decree, dated 17^th September 2009 in R.A. No.43 of 2017, on the file of the Civil Judge (Sr.Dn.), Hukkeri (for short “First Appellate Court”), reversing the judgment and decree, dated 24^th July 2007 passed in O.S. No.84 of 2000 on the file of the Civil Judge (Jr.Dn.), Sankeshwar,whereby, the First Appellate Court dismissed the suit of the plaintiff for partition and separate possession.

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The parties herein are referred to as per their rank before the trial Court, for the sake of convenience. ]

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This Court on 12.03.2014, while admitting the

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appeal has framed the following substantial questions of law:

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Whether the First Appellate Court has committed a serious error in ignoring the material evidence and thereby has come to the conclusion that there was earlier partition?

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NC: 2024:KHC-D:17120 RSA No. 5680 of 2009

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Whether the First Appellate Court has ignored the material evidence and thereby has come to the conclusion that acquisition of certain lands by the father of defendant Nos.and 3 are his self acquired properties more particularly when the defendants themselves have not entered witness box?

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Whether the judgment of the First Appellate Court is perverse and illegal for the reasons stated above?

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4. Learned counsel appearing for the appellant and

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the learned counsel appearing for the respondents are being heard on the substantial questions of law framed by this Court and perused the judgment and decree of the Courts below including the materials available on record.

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The family genealogical tree is culled out, as

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under:

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JEEVAPPA (PROPOSITUS)

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SATABA (DIED) APPAYYA (DIED) KRISHNA (DEFT-3) = RUKMINIBAI (DEFT-4) NEELU AKKAVVA SAMBHAJI PUTALABAI SHIVAJI IRAPPA (DIED) (DEFT-5) (DEFT-6) (PLTF) (DEFT-7) =RAMA (DIED)

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BABU (DEFT-2)

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6 - NC: 2024:KHC-D:17120 RSA No. 5680 of 2009

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The case of the plaintiff is that, the plaintiff being

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the son of Appayya and the grandson of Jeevappa is entitled for partition and separate possession of 1/15^th share in the suit properties. That there was no partition effected between Sataba, Appayya and Krishna, the sons of Jeevappa. The suit properties are item Nos.3, 4 and 10 to 13 are the ancestral joint family properties and item Nos.1, 2, 5 and 6 were purchased in the name of Sataba from the nucleus of the joint family funds. Further, item Nos.7 to 9 are the tenanted lands of the family of Jeevappa and occupancy rights granted in favour of Appayya and Krishna enures to the benefit of all the family members.

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The defendants on notice, appeared and filed their written statement inter alia contending that there was prior partition effected between the plaintiff and defendants and that purchase of item Nos.1, 2, 5 and 6 properties in the name of Sataba was from his individual income and not from the nucleus of the joint family. Further, defendant

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7 - NC: 2024:KHC-D:17120 RSA No. 5680 of 2009

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No.1’s mother filed suit in O.S. No.104/1984, which came to be dismissed. Subsequently, defendant No.5 also filed suit in O.S. No.127/1987, which came to be dismissed for non-prosecution and Civil Misc. No.3/1991 filed for restoration also came to be dismissed and in light of the dismissal of the suit in O.S. No.104/1984, the plaintiff is estopped from claiming the right over the suit property. The defendants contended that there was a prior partition between the family members of the Jeevappa.

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

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“(1) Whether the plaintiff proves that the plaintiff and defendants constitute a Hindu Joint Family?

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(2) Whether the plaintiff proves that suit properties are the joint family properties consisting of plaintiff and defendants?

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(3) Whether the plaintiff proves that, VPC No.1 house property shown in schedule ‘A’ situated at Managutti Village is purchased out of the joint family funds under sale deed dated 04.12.1951?

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NC: 2024:KHC-D:17120 RSA No. 5680 of 2009

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(4) Whether the plaintiff proves that suit property lands bearing RS No.19 purchased out of joint family fund under sale deed dated 28.2.1951 and so also Sy.No.13/1B and 14/1B on 18.4.1953 and Sy.No.38/2/B on 30.7.1969 out of the joint family funds?

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(5) Does plaintiff further proves that the suit properties are under joint cultivation and enjoyment of plaintiff and defendants?

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(6) Whether the plaintiff proves that the Land Tribunal Hukkeri granted the joint occupancy right to the extent of 1/3^rd share each in favour of plaintiff and defendants along with legal heirs of Sakharam Ranaba Kotekar and also legal heirs of Raghunath Govind Joshi in respect of Sy.No.50/3, 73/3, 75/5 of Manalgutti village?

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(7) Whether the plaintiff is entitled for 1/15^th share in the suit property?

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(8) Whether the plaintiff proves that sale deed executed by Satba dated 4.4.1984 in respect of VPC No.1 in favour of defendant No.1 and 2 has no binding effect over the legitimate 1/15^th share of plaintiff?

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(9) Whether the defendants prove that there was already partition in the family of plaintiff and defendants in respect of suit properties?

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NC: 2024:KHC-D:17120 RSA No. 5680 of 2009

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(10) Whether the suit is valued properly and this Court has got pecuniary jurisdiction?

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(11) Whether the suit is bad for non-joinder of necessary parties?

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(12) Whether the suit is hit by doctrine of re-judicata?

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(13) What decree or order?”

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In order to substantiate their claim, plaintiff

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examined himself as PW1 and got marked documents at Exs.P1 to P28. On the other hand, defendants examined witnesses as DW1 to DW5 and got marked documents at Exs.D1 to D28. The trial Court based on the pleadings, oral and documentary evidence arrived at a conclusion that:

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(i) the plaintiff has proved that the plaintiff and defendants constituted a joint Hindu undivided family;

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(ii) the plaintiff had proved that the suit properties are the joint family properties consisting of the plaintiff and defendants;

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NC: 2024:KHC-D:17120 RSA No. 5680 of 2009

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(iii) the plaintiff has proved that VPC No.1 house property shown in the schedule ‘A’ is purchased out of the joint family funds under the sale deed;

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(iv) the plaintiff proves that the properties purchased in the name of Sataba is from joint family funds;

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(v) that the occupancy rights granted by the Land Tribunal in favour of plaintiff and defendants along with legal heirs of Sakharam Ranaba Kotekar and also the legal heirs of Raghunath Govind Joshi are entitled for 1/3^rd share.

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The trial Court by the judgment and decree, decreed the suit partly holding that plaintiff, defendant Nos.5 and 7 are entitled for 5/48^th share each, defendant No.6 is entitled for 1/48^th share, defendant Nos.1 and 2 are entitled for 1/6^th share each, and defendant No.3 is entitled for 1/3^rd share in the suit schedule properties. Aggrieved, the defendants preferred appeal before the First Appellate Court. The First Appellate Court while re-appreciating and

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re-considering the judgment and decree of the trial Court, arrived at a conclusion that the plaintiff has not been able to prove that he is enjoying the suit properties and that there is no severance of status in the family and dismissed the suit of the plaintiff. Aggrieved, the plaintiff is before this Court in this Regular Second Appeal.

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The relationship between the plaintiff and defendants is not in dispute. It is also not in dispute that the suit item Nos.1 and 2 properties are purchased in the year 1951 and 1953 under a registered sale deed in the name of Sataba, the elder son of Jeevappa and the father of defendant Nos.1 and 2; item Nos.3 and 4 properties are the ancestral properties of the plaintiff and defendants; item Nos.5 and 6 properties are purchased in the name of Satba in the years 1963 and 1969; item Nos.7 to 9 properties are the tenanted lands, wherein Form No.7 was filed by sons of Jeevappa and occupancy rights were granted in favour of of all the sons Sataba, Appayya and Krishna as per Ex.P22;

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12 -

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NC: 2024:KHC-D:17120 RSA No. 5680 of 2009

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item Nos. 10 to 13 properties and two house properties are the ancestral properties.

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The case of the plaintiff is that all the sons of Jeevappa are entitled to equal share in the suit schedule properties. The plaintiff contended that the mutation entry produced at Ex.P1 clearly establishes that till the death of original propositus, there was no partition and they were in joint possession and enjoyment of the suit properties. The burden which was on the plaintiff to establish about the plaintiff and the defendants were in joint possession and that the joint family possessed the joint family properties, having been established the burden shifts on the defendants to prove that the factum of earlier partition and that he has purchased the properties after the partition having been effected. The joint family had several properties, which is indicated in the schedule. It is pertinent to note here that, defendant No.1 specifically contended that the properties purchased by the father of defendant Nos.1 and 2 was from his individual income. The fact

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remains that the family of the plaintiff and defendants had joint family properties and there was a family nucleus from the joint family property. As the plaintiff having established the factum of family nucleus, the onus shifts on the defendants to show that as on the date of purchasing of the properties, which he claims to be the self acquired properties, is purchased out of his own income and he has to prove before the Court that it is his own income other than the family income. The source of income other than the agriculture income owned by the joint family properties, the defendants have not produced any other corroborative evidence to indicate that he had any independent source of income to acquire the suit items which were purchased in his name. The trial Court has rightly assessed the oral and documentary evidence and arrived at a conclusion that item Nos.3, 4, 5 and 10 to 13 properties are the ancestral properties; and item Nos.1, 2 and 6 properties are purchased out of the joint family nucleus in the name of Sataba, the father of dependent Nos.1 and 2. The other properties namely item Nos.8 and 9 properties are tenanted

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14 - NC: 2024:KHC-D:17120 RSA No. 5680 of 2009

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properties. To establish the said fact the plaintiff has relied upon Ex.P22, the order of the Land Tribunal. The order of the Land Tribunal, it is indicated that, the applicants i.e., Krishna and his brother Appayya have stated that they are jointly cultivating the properties and they are in lawful tenants and accordingly, the Land Tribunal granted occupancy rights to Krishnam Sataba and sons of Appayya (jointly). The relevant portion of the order of the Land Tribunal is culled out as under:

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The applicants say that they are cultivating the suit lands half portion in each suit S.No. jointly along with their brother Sri. Appayya Jivappa for the last so many years as P.Ts. and request to register them as joint occupants of the suit lands, since they are lawful tenants.

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Verified the records, it is seen that the applicants names are appearing in the R. of Rs. For the last so many years as P.Ts. Therefore, the Tribunal has come to the conclusion that the applicants and their brother Sri. Appayya are entitled to register as joint occupants for half portion in each suit S.No. since they are lawful tenants.

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Village	Sy.No.	Area	Assess ment	Remarks
Managutti	402	5-18	6-22	½ portion out of S.No.402,
	59/3	3-26	5-08	½ portion out of S.No.59/3,
	75/3	9-75	9-75	½ portion out of S.No.75/3 and
	75/5	1-18	1-17	½ portion out of S.No.75/5 to 1. Krishna Jivappa Kothekar 2. Sataba Jivappa Kothekar 3. Shivajai and his 2 brothers/ s/o. Appaya Jivappa jointly.

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12. The Land Tribunal granted occupancy rights to

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Krishna, Sataba as well as Appayya. The occupancy rights were granted to all the brothers and the plaintiff being the son of Appayya is entitled for share in the joint family properties. The First Appellate Court has totally lost sight of the material evidence and has erroneously come to the conclusion that the plaintiff has failed to prove his entitlement over the suit schedule property. The material on record clearly establishes that purchase of the suit properties in the name of the father of defendant Nos.1 and 2 were out of the joint family nucleus and not from his individual source and was not his self acquired properties and which aspect is totally overlooked by the First Appellate Court and the judgment and decree of the First Appellate Court suffers from perversity and illegality making this

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Court to interfere with the judgment and decree of the First Appellate Court and the substantial questions of law framed

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by this Court is answered in favour of the appellant and this Court pass the following:

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ORDER

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(i) The Regular Second Appeal is hereby allowed .

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(ii) The judgment and decree of the First Appellate Court is set aside .

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(iii) Three sons of Jeevappa namely Sataba, Appayya and Krishna are entitled for 1/3^rd share each. Plaintiff together with defendant Nos.5 to 7 are entitled to 1/3^rd share of Appayya; defendant Nos.1 and 2 are entitled for 1/3^rd share of Sataba; & defendant No.3 is entitled for 1/3^rd share.

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Ordered accordingly.

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Sd/-

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_____________________ (JUSTICE K.S.HEMALEKHA)

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VNP / CT: PA

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LIST NO.: 1 SL NO.: 22

Shivaji S/O Appayya. Kotekar v. Smt.Neelu W/O. Krdri. Mrndale

Case brief

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Shivaji S/O Appayya. Kotekar v. Smt.Neelu W/O. Krdri. Mrndale

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