Smt Lata W/O Mahadev Chinchalli Vs Smt Annapurna W/O Sannaveerappa Wali

SMT.LATA W/O.MAHADEV CHINCHALLI AGE: 49 YEARS, OCC: HOUSEHOLD WORK, R/O: E-10/2/2, SUPRABATH CO-OPERATIVE HOUSING SOCIETY, SECTOR NO.15. AIROLI, NAVI MUMBAI-400708, MAHARASHTRA STATE.

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…APPELLANT

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(BY SRI. H.R. GUNDAPPA, ADVOCATE)

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AND:

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Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA Date: 2025.03.01 12:08:49 +0530

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SMT. ANNAPURNA DINVR FRSF, (ON 02.05.2021) LEAVING BEHIND THE APPELLANT AND RESPONDENTS NO.2(A) AND 3, AS HER LIVING LEGAL HEIR. (AS PER THE ORDER OF THIS COURT, DATED 06.03.2023, THE APPELLANT AND THE RESPONDENTS, NO.2 (A) AND 3, ARE THE LEGAL HEIRS OF RESPONDENT NO.1)

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SMT. VIDYA W/O. GIRIMALLAPPA HASABI AGED ABOUT 41 YEARS, OCC: SERVICE, R/O: CTS NO.9423 (LIG-205)

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NC: 2025:KHC-D:830-DB RFA No. 100036 of 2018

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SECTOR NO.XI, MAHANTESH NAGAR, BELAGAVI-590017, BELAGAVI DISTRICT.

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2(A) VIJAY S/O. GIRIMALLAPPA HASABI AGED ABOUT 41 YEARS, OCC: SERVICE R/O: CTS NO.9423 (LIG-205) SECTOR NO.XI, MAHANTESH NAGAR, BELAGAVI-590017, BELAGAVI DISTRICT.

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SHRI. VIKRAM S/O. GIRIMALLAPPA HASABI AGED ABOUT 41 YEARS, OCC: SERVICE, R/O: CTS NO.9423 (LIG-205) SECTOR NO.XI, MAHANTESH NAGAR, BELAGAVI-590017, BELAGAVI DISTRICT.

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…RESPONDENTS

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(BY SRI. MALLIKARJUNASWAMY B. HIREMATH, ADVOCATE FOR R3 AND R2(A); R1-DECEASED

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V/O. DATED 06.03.2023 R2(A) AND R3 ARE LRS OF DECEASED R1)

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THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W. SECTION 96 OF THE CIVIL PROCEDURE CODE, PRAYING TO SET CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE COURT AT BELAGAVI IN O.S.NO.103/2014, AS ON 10.10.2017 AND TO ALLOT THE SHARE OF THE APPELLANT IN THE SUIT SCHEDULE PROPERTY AND ETC.,

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND

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THE HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

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This Regular First Appeal is filed, challenging the

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judgment and decree dated 10.10.2017, passed in O.S.No.103/2014 by the learned III Addl. Senior Civil Judge & CJM, Belagavi (for short, `trial Court’).

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For convenience, the parties are referred to, based on their ranking before the trial Court. The appellant was the plaintiff and the respondents were the defendants.

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Brief facts, leading rise to the filing of this regular first appeal, are as follows:

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The plaintiff filed a suit against the defendants for partition and separate possession, for declaration that, the alleged Gift Deeds executed by her father, deceased Sannaveerappa in favour of the defendants No.1 and 3 as null and void and the same is not binding on her, and to partition the suit schedule property by metes and bounds and to give 1/3^rd separate share in the suit schedule property and mesne profit.

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It is the case of the plaintiff that, the residential RCC building in a plot measuring 40 x 50 feet consisting of the ground floor and first floor, each with three bed rooms, one hall, kitchen, bath, and washrooms, bearing LIG No.205, corresponding CTS No.9423, situated at Mahantesh Nagar, Belgaum is the suit schedule property. Defendant No.1 is the wife, the plaintiff and defendant No.2 are the daughters of deceased Sannaveerappa Wali, who died on 28.04.2013. Defendant No.3 is the son of defendant No.2. Sannaveerappa is the original resident of Mulgund village, Taluk, and District Gadag. He had an ancestral property measuring 4 acres 32 guntas of agriculture land in RS No.629/3, a house, and a shop bearing No.968 situated in bazaar road of Mulgund. He left the said village in 1963 and had an employment in Belgaum District, i.e., in Central Co-operative Credit Bank, Khanapur. After transfer, he came to Belgaum in 1973 and worked in Belgaum till his retirement in 1994. The deceased Sannaveerappa had no intention of having a residential house at Belgaum, to settle permanently. Hence, he applied for a residential house to the Karnataka Housing Board, Bengaluru. Accordingly, the Karnataka Housing Board allotted a house in

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LIG No.205 on 03.08.1972 and executed a Lease-cum-Sale Deed for consideration of Rs.24,997/-. The said property is situated at Mahantesh Nagar, Belgaum. The Karnataka Housing Board executed a final registered Sale Deed in favour of Sannaveerappa on 07.02.1986 a for consideration amount of Rs.26,135/-. The deceased Sannaveerappa was residing in the suit property along with the plaintiff, defendants No.1 and 2.

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It is contended that Sannaveerappa sold his agricultural land situated at Mulgund infavour Shivappa S/o. Mahantappa Kori for valuable consideration of Rs.14,000/- and executed a registered Sale Deed dated 30.04.1980. In 198384, he sold the house and a shop to the Reddy Co-Operative Credit Bank, Mulgund Branch, for valuable consideration. The salary of the deceased Sannaveerappa was only enough to meet the minimum requirements of his family members, like the maintenance and education of his children. It is contended that, the deceased Sannaveerappa had purchased the suit schedule property out of the consideration amount received from the sale of land bearing Sy.No.629/3, house and shop situated at Mulgund. The suit schedule property is the joint family property of the plaintiff and defendants. It is contended

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that Sannaveerappa had no right to execute the Gift Deeds in favour of defendants No.1 and 3. It is contended that, the Gift Deeds executed by deceased Sannaveerappa in favour of the defendants No.1 and 3 is not binding on the plaintiff. The plaintiff requested the defendants to effect a partition, but the defendants refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for declaration, partition and separate possession. Accordingly, prays to decree the suit.

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The defendants filed a common written statement, denying the averments made in the plaint and it is contended that, the suit schedule property is the self-acquired property of the deceased Sannaveerappa and it is not purchased out of the alleged sale consideration amount. It is contended, that the deceased Sannaveerappa out of love and affection, gifted the suit schedule property in favour of defendants No.1 and 3 by executing the registered Gift Deeds dated 10.11.2003 and 03.04.2009 respectively. By virtue of the said registered Gift Deeds, defendants No.1 and 3 became the absolute owners of the suit schedule property. The plaintiff has no right to claim a

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share in the suit schedule property. Hence, prays to dismiss the suit.

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The trial Court, based on the pleadings of the parties, framed the following issues and additional issues:

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ISSUES

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1.Whether the plaintiff proves that, the gift deed executed by late Sannaveerappa dated 10.11.2003 and 03.04.2009 are null and void and not binding on the plaintiff?

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2.Whether the plaintiff proves that she having 1/3^rd share in the suit schedule property?

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3.Whether the plaintiff is entitled for mesne profit?

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4.Whether the plaintiff is entitled for partition and separate possession of her share?

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5.What order or decree?

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ADDITIONAL ISSUES

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1.Whether the defendants prove that, the suit schedule house was purchased by Shri. Sannaveerappa Wali out of his salary?

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2.Whether the defendants prove that, Shri. Sannaveerappa Wali sold ancestral properties and purchased plot bearing C.T.S.No.7452 from the said sale consideration amount in the name of his daughter, the defendant No.2 in an auction and thereafter he constructed twin blocks and the same was divided equally among the plaintiff and defendant No.2?

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3.Whether the suit of the plaintiff is barred by limitation?

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4.Whether the plaintiff proves that her father purchased the suit property by selling the ancestral property situated at Mulagund?

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The plaintiff to substantiate her case, examined herself as PW.1 and marked fifteen documents as Exs.P.1 to P.15. In rebuttal, defendant No.2 examined herself as DW.1

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and marked 23 documents as Exs.D1 to D.23. The defendant No.3, examined himself as DW.2 and marked two documents as Exs.D.24 and D.25. The trial Court, after recording the evidence, hearing on both sides and on assessment of oral and documentary evidence, answered Issue Nos.1 to 4 and additional issue No.4 in the negative, additional issue Nos.1 to 3 in the affirmative, Issue No.5 as per the final order. The suit of the plaintiff was dismissed vide judgment dated 10.10.2017. The plaintiff aggrieved by the judgment and decree passed in O.S No.103/2014 filed this Regular First Appeal.

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Heard the learned counsel for the plaintiff and the learned counsel for the defendants.

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Learned counsel for the plaintiff submits that,

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defendant No.1 died leaving behind the plaintiff and defendant No. 2. He submits that, admittedly, Sannaveerppa executed the registered Gift Deeds in favour of defendants No.1 and 3 in

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respect of the suit schedule property. He submits that, in view of the death of defendant No.1, the plaintiff is entitled to a share in the property of defendant No.1 i.e. half share in the property acquired under the registered Gift Deeds dated 10.11.2003 and 03.04.2009, respectively. He submits that, though, the trial Court has dismissed the suit holding that, the plaintiff has failed to establish that, the suit schedule property is the joint family property of the plaintiff and defendants, he submits that, in view of the death of defendant No.1, the plaintiff is entitled to a share as per Section 15 of the Hindu Succession Act, 1956. Hence, he pray to grant a share in the property possessed by defendant No.1. Hence, on these grounds, he prays to mould a relief under Order VII Rules 7 of the Code of Civil Procedure. Accordingly, on these grounds, he prays to allow the appeal.

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Per contra, learned counsel for defendants No. 2 and 3 fairly concedes that, the share may be allotted in the property of defendant No.1, and hence, he has no objection to allot a share in the property of defendant No.1 and accordingly, prays to dispose of the appeal.

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Perused the records and considered the

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submission of the learned counsel for the parties.

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The points that arise for our consideration

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are:

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1. Whether the plaintiff is entitled for a share in the property left by the deceased defendant No.1 ?

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2. What order or decree ?

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Point No.1: It is the case of the plaintiff that,

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the father of the plaintiff, namely, Sannaveerappa was the absolute owner of the suit schedule property and he had purchased the suit schedule property out of the sale consideration amount of land bearing RS.No.629/3, house and a shop bearing No.968, situated at Bazaar road at Mulgund. It is contended that, the suit schedule property is the joint family property of the plaintiff and defendants. The deceased Sannaveerappa had no right to execute the registered Gift Deeds in favour of defendants No.1 and 3. The defendants No.1 and 3 have not acquired any right, title, or interest over the suit schedule property. It is further contended that, the said suit schedule property was purchased out of the consideration

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amount received from the sale of ornaments. The said ornaments were the ancestral. Hence, it is contended that, the suit schedule property is the joint family property of the plaintiff and defendants.

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The plaintiff to substantiate her case, she was examined herself as PW.1. She reiterated the plaint averments in the examination-in-chief. The plaintiff has produced the documents - Ex.P.1 is the certified copy of the RTC extract of SY.No.689/3 stands in the name of Shivappa, who is said to be the purchaser of land from Sannaveerappa, Ex.P.2 is the Building Tax Register extract of the property bearing No.967, wherein it discloses the name of the owner as the Reddy CoOperative Society Bank, Ex.P.3 is the certified copy of the Gift Deed dated 10.11.2003 executed by Sannaveerappa in favour of the defendant No.1, which discloses that Sannaveerappa had gifted the portion of 1/4^th share in CTS No.9423 (LIG 205), totally measuring 223.8/9 square yards, situated at Mahantesh Nagar, Sector XI, Mal-Maruti extension at Belgaum, Ex.P.4 is the Certified copy of the Gift Deed executed on 03.04.2009 by deceased Sannaveerappa in favour of defendants No.1 and 3, wherein the donor executed a Gift Deed in respect of 3/4^th

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share in CTS No.9423/B (LIG 205), totally measuring 138.42 square yards situated at Mahantesh Nagar, Belgaum, Ex.P.5 is the certified copy of the Ruled Card, stands in the name of Sannaveerappa Wali in respect of CTS No.9423/A, measuring 223.8/9 square yards, Ex.P.7 is the certified copy of the Property Register Card in respect of CTS No.9423/B, measuring 138.42 square meters stands in the name of defendants No.1 and 3, wherein name of defendants No.1 and 3 were mutated on 04.04.2009, Ex.P.8 is the certified copy of the Ruled Card issued by the City Survey Department in respect of CTS No.9423/B, Ex.P.9 is the office copy of legal notice issued by the plaintiff to the defendants on 13/01/2014, calling upon the defendants to effect a partition in the suit schedule property by metes and bounds and the plaintiff is entitled for 1/3^rd share in the suit schedule property, Ex.P.10 is the reply notice to the Ex.P.9 issued by the learned counsel for the plaintiff. In the reply notice, the defendants have stated that, the suit schedule property is the self-acquired property of Sannaveerappa, and out of love and affection, he had executed registered Gift Deeds in favour of defendants No.1 and 3 and they have become the absolute owner of the suit schedule property by virtue of the

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registered Gift Deeds executed by Sannaveerappa in favour of defendants No.1 and 3. It is contended that, the suit schedule property is the self-acquired property of Sannaveerappa. Ex.P.11 is the copy of the legal notice issued by the plaintiff to the defendants. Ex.P. 12 is the postal receipt. Ex.P.13 to P.15 are the postal acknowledgements.

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During the course of cross examination, PW.1 has pleaded ignorance about the quantity of the gold ornaments, to whom they were sold and to what price. Further, the plaintiff has pleaded that, the ancestral gold ornaments were sold for the purpose of repayment of a loan obtained from the Pioneer Urban Co-operative Bank. In a suit for a partition and separate possession, the initial burden is on the plaintiff to establish the relationship between the parties and the nature of the suit schedule property. Admittedly, in the instant case, Sannaveerappa had in a Belgaum Co-operative Bank and he had a separate source of income for purchasing the suit schedule property. It is the case of the plaintiff that Sannaveerappa sold land bearing Sy.No.629/3 on 30.04.1980 and admittedly, the Karnataka Housing Board has granted the suit schedule property in favour of Sannaveerappa in 1972.

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Sannaveerappa had purchased the said property before the execution of a sale deed in respect of land bearing RS.No.629/3, a house, and a shop. Further, the plaintiff has failed to establish that, the said sale consideration was kept in a fixed deposit and further, the plaintiff has not produced any record to establish that, the suit schedule property was purchased out of the sale consideration amount. The trial Court has dismissed the suit, recording its finding that the plaintiff has failed to establish that, the suit schedule property is the joint family property of the plaintiff and defendants and further, recorded a finding that, Sannaveerappa was the absolute owner of the suit schedule property and he had executed the Gift Deed in favour of the defendant No.1 to the extent of 1/4^th in CTS. No.9423 (LIG 205) and executed the Gift Deed in favour of the defendants No.1 and 3 to the extent of 3/4^th in CTS. No.9423/B (LIG 205). The trial Court was justified in recording the said findings. Therefore, we do not find any error in the impugned judgment.

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Learned counsel for the plaintiff submits that, during the pendnecy of this instant appeal, defendant No.1 died leaving behind the plaintiff and defendant No.2. He submits

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that, the plaintiff and defendant No.2 have succeeded to the estate of the deceased defendant No.1. He submits that, the plaintiff is entitled to a share in the property owned and possessed by defendant No.1 as per Section 15 of the Hindu Succession Act. Admittedly, the plaintiff and defendant No.2 are the daughters of defendant No.1. They are the class-I heirs and they are entitled to the share of defendant No.1. As the suit is filed in 2014, instead of relegating the parties to file one more suit for partition and separate possession, we mould a relief under Order VII Rule 7 of the Code of Civil Procedure. The plaintiff and defendant No.2 are equally entitled for a half share each in 1/4^th share of deceased defendant No.1 in CTS No.9423 (LIG No.205), totally measuring 223.8/9 square yards, and the plaintiff and defendant No.2 are entitled for a half share each in the half share of deceased defendant No.1 in 3/4^th share of CTS.No.9423/B (LIG No.205), totally measuring 138.42 square yards.

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