Smt.Neelawwa Basalingappa Dalal, Vs Smt.Savakka @ Shantawwa

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NC: 2025:KHC-D:1540-DB RFA No. 100040 of 2016

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 25^TH DAY OF JANUARY, 2025

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PRESENT

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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AND

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THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100040 OF 2016 (PAR)

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BETWEEN :

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SMT. NEELAWWA BASALINGAPPA DALAL, AGE: 62 YEARS, OCC: AGRICULTURE, R/O: YADAWAD, TQ: GOKAK, DIST: BELAGAVI.

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MALLAPPA S/O BASALINGAPPA DALAL, AGE: 41 YEARS, OCC: AGRICULTURE, R/O: YADAWAD, TQ: GOKAK, DIST: BELAGAVI.

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Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench

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SRI. SURESH BASALINGAPPA DALAL AGE: 40 YEARS, OCC: AGRICULTURE, R/O: YADAWAD, TQ: GOKAK, DIST: BELAGAVI.

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SRI. RAJASHEKHAR BASALINGAPPA DALAL AGE: 35 YEARS, OCC: AGRICULTURE, R/O: YADAWAD, TQ: GOKAK, DIST: BELAGAVI.

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SMT. SUNANDA W/O MURIGEPPA CHINIWAL, AGE: 33 YEARS, OCC: AGRICULTURE, R/O UTTUR, TQ: MUDHOL, DIST: BAGALKOT.

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SMT. SHANTAWWA W/O IRRAPPA DALAL, AGE: 54 YEARS, OCC: AGRICULTURE,

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NC: 2025:KHC-D:1540-DB RFA No. 100040 of 2016

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R/O: YADAWAD, TQ: GOKAK, DIST: BELAGAVI.

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SMT. SULOCHANA @ SHOBHA W/O SHANKAR JAMBAGI @ ALLIGIDAD, AGE: 35 YEARS, OCC: AGRICULTURE, R/O: KULLUR, TQ: RAMADURG, DIST: BELAGAVI.

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SMT. MANJULA W/O SURESH RAMATEERTH, AGE: 33 YEARS, OCC: AGRICULTURE, R/O: NO.405, GULAGALAJAMBAGI, MUDHOL, TQ: MUDHOL, DIST: BAGALKOT.

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SMT. SAVITRI W/O MANINGAPPA CHINIWAL @ SHETTAR, AGE: 28 YEARS, OCC: AGRICULTURE, R/O: UTTUR, TQ: MUDHOL, DIST: BAGALKOT.

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SRI. MALLAPPA S/O IRRAPPA DALAL, AGE: 28 YEARS, OCC: AGRICULTURE, R/O: YADAWAD, TQ: GOKAK, DIST: BELAGAVI.

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SRI. DANAPPA MALLAPPA DALAL, AGE: 60 YEARS, OCC: AGRICULTURE, R/O: YADAWAD, TQ: GOKAK, DIST: BELAGAVI.

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…APPELLANTS

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(BY SRI. F.V PATIL, ADV)

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AND:

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SMT. SAVAKKA @ SHANTAVVA W/O MALLAPPA PATTED, AGE: 65 YEARS, OCC: AGRICULTURE, R/O: DHAVALESHWAR, TQ: BAILHONGAL, DIST: BELAGAVI.

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SMT. GOURAVVA SHANKAREPPA KOUJALAGI, AGE: 62 YEARS, OCC: AGRICULTURE, R/O: YADAWAD, TQ: GOKAK, DIST: BELAGAVI.

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KALAVVA W/O BABU ARIBENCHI, AGE: 72 YEARS, OCC: AGRICULKTURE, R/O: ITIGALLI, NEAR HANUMAN TEMPLE, RAMDURG, DIST: BELAGAVI.

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SRI. CHANNAPPA S/O. DANAPPA DALAL, SINCE DECEASED BY HIS LR’S

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4a. SMT. NINGAVVA ARUN SOGALAD, AGE: 35 YEARS, OCC: HOUSEHOLD WORK, R/O: YADWAD VILLAGE, TQ: GOKAK, DIST: BELAGAVI.

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SRI. BASAPPA IRAPPA VASANAD, SINCE DECEASED BY HIS LR’S.,

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5a. SAVAKKA W/O BASAPPA VASANAD AGE: 45 YEARS, OCC: HOUSEWIFE R/O: YADWAD, TQ: MUDALAGI, DIST: BELAGAVI.

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5b. ANIL S/O BASAPPA VASANAD AGE: 28 YEARS, OCC: AGRICULTURE R/O: YADWAD, TQ: MUDALAGI, DIST: BELAGAVI.

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5c. SUNIL S/O BASAPPA VASANAD AGE: 24 YEARS, OCC: AGRICULTURE R/O: YADWAD, TQ: MUDALAGI, DIST: BELAGAVI.

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SMT. SHANTAWWA W/O BASALINGAPPA

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NC: 2025:KHC-D:1540-DB RFA No. 100040 of 2016

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SATTIGERI, AGE: 58 YEARS, OCC: AGRICULTURE, R/O: YADAWAD, TQ: GOKAK, DIST: BELAGAVI.

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SMT. SUVARNA W/O. BASAPPA DALAL (Since R7 deceased, his LRs R8, 9 and 10 are already on record)

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SMT. IRAWWA SURESH SATTIGERI AGE: 41 YEARS, OCC: HOUSEHOLD, R/O YADAWAD, TQ: GOKAK, DIST: BELAGAVI.

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BASAVVA D/O BASAPPA DALAL, AGE: 38 YEARS, OCC: HOUSEHOLD, R/O: YADAWAD, TQ: GOKAK, DIST: BELAGAVI.

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SMT. MAHA4DEVI W/O DUNDAPPA GOONDI, AGE: 36 YEARS, OCC: HOUSEHOLD, R/O: MASAGUPPI, TQ: GOKAK, DIST: BELAGAVI.

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SRI. ISHWAR BASAPPA DALAL, AGE: 34 YEARS, OCC: AGRICULTURE, R/O: YADAWAD, TQ: GOKAK, DIST: BELAGAVI.

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SMT. KASTURI W/O SHRISHAIL BADAMI, AGE: 31 YEARS, OCC: HOUSEHOLD, R/O: YADAWAD, TQ: GOKAK, DIST: BELAGAVI.

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SMT. CHAMBAWWA W/O BASAPPA ARIBENCHI, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: RAMADURG, TQ. RAMADURG, DIST. BELAGAVI.

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SMT. SAROJA W/O MAHADEVAPPA DALAL, AGE: 53 YEARS, OCC: AGRICULTURE, R/O: YADAWAD, TQ: GOKAK, DIST: BELAGAVI.

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SRI. MALLAPPA S/O. MAHADEVAPPA DALAL, AGE: 34 YEARS, OCC: AGRICULTURE, R/O: YADAWAD, TQ: GOKAK, DIST: BELAGAVI.

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SMT. SHARAWWA W/O SIDDAPPA DALAL, AGE: 49 YEARS, OCC: AGRICULTURE, R/O: YADAWAD, TQ: GOKAK, DIST: BELAGAVI.

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…RESPONDENTS

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(BY SRI. VINAY S KOUJALAGI, ADV FOR R1 & R2 V/O DTD. 14.02.2017, NOTICE TO R4(A), R6, R8 TO R11 & R13 TO R16 ARE SERVED, V/O DATED 16.11.2022, R8 TO R10 ARE LR’S OF DECEASED R7)

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THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULE 1 AND 2 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.10.2014 PASSED IN O.S.NO.92/2008 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, GOKAK, PARTLY DECREEING THE SUIT FILED FOR PARTITION.

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

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CORAM:

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA

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NC: 2025:KHC-D:1540-DB RFA No. 100040 of 2016

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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 by the appellants,

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challenging the judgment and preliminary decree dated 17.10.2014 passed in O.S.No.92/2008 by the learned I Additional Senior Civil Judge, Gokak.

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For convenience, the parties are referred to,

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based on their ranking before the trial court. The appellants were defendant Nos.2 to 8. Respondent Nos.1 and 2 were the plaintiffs and other respondents were the defendants.

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

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The plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that propositus Mallappa died in the year 1965, leaving behind his widow Borawwa, three sons i.e, Basalingappa, Irappa (defendant No.7) Danappa

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(defendant No.8), and three daughters i.e., Kalavva (defendant No.1) Savakka (plaintiff No.1) and Gouravva (plaintiff No.2), as his legal heirs. The widow of propositus i.e., Borawwa died in 2003. Basalingappa died leaving behind his widow Neelawwa (defendant No.2) and three sons, namely Mallappa (defendant Nos.3), Suresh (defendant No.4), and Rajashekar (defendant No.5), and one daughter by the name of Sunanda (defendant No.6) as his legal heirs. They succeeded in the estates he left behind. The plaintiffs and the defendant Nos.1 to 8 constitute a Hindu Undivided joint family and the suit schedule properties are the ancestral family properties. It is contended that there has been no partition with respect to suit properties between the plaintiffs and the defendant Nos.1 to 8. It is further stated that the plaintiffs jointly have a 2/6^th share in the suit properties. The defendants attempted to alienate the suit properties in favour of Dalmia Company by ignoring the legitimate shares of the plaintiffs. The plaintiffs demanded their share by metes and bounds, but the defendants refused to effect a

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partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

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Defendant No.3 filed a written statement.

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Defendant Nos.2, 4, 5, 7 and 8 have adopted the written statement filed by defendant No.3. Defendant No.3 admitted the relationship between the parties and the nature of the suit properties as that of joint family properties at one point of time. It is contended that the plaintiffs and defendant No.1 have orally relinquished their rights in item Nos.2 to 5 of the suit schedule properties and in respect of house properties bearing VPC Nos.726, 1243 and 1335 of Yadawad village in favour of defendant Nos.7, 8 and the deceased Basalingappa. The factum of relinquishment was reduced into writing in the form of a document dated 26.06.1991. The plaintiffs have no right to seek partition regarding the suit properties. Defendant No.8 filed a suit in O.S.No.320/1992 for partition regarding the family properties against defendant No.7

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and deceased Basalingappa, on the file of Additional Civil Judge, Gokak. The said suit ended in a compromise, and a compromise decree was drawn. It is contended that as per the compromise decree, item No.1 of the suit schedule land is the exclusive property of defendant Nos.3 to 5 and one Chinnappa, i.e., defendant No.9 and Siddappa. It is contended that the suit is bad for non-joinder of necessary parties i.e., Chinnappa and Siddappa, whose names are appearing in the record of rights in respect of item No.1 of the suit schedule landed property. The suit filed by the plaintiffs is barred by limitation. Hence, prays to dismiss the suit.

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The plaintiffs filed a rejoinder to the written statement filed by defendant No.3, denying the binding nature of the compromise decree passed in O.S.No.320/1992 and prays to decree the suit.

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The trial court, based on the pleadings of the parties, framed the issues and additional issues.

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1) Whether the plaintiffs prove that the suit properties are the joint family properties of the plaintiffs and defendants?

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2) Whether the defendants prove that the plaintiffs have relinquished their right in the suit properties?

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3) Whether the suit is bad for non joinder of necessary parties?

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4) Whether the plaintiffs are entitled for partition and separate possession of their share in the suit properties?

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5) What decree or order?

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Additional Issue:

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1) Whether the suit is barred by time under Section 103 of the Limitation Act as contended in para No.17(A) of the written statement?

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The plaintiffs to substantiate their case, plaintiff

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No.2 was examined as PW.1, examined two witnesses as PWs.2 and 3 and marked 12 documents as Exs.P1 to P12.

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In rebuttal, defendant No.3 was examined as DW.1 and marked 42 documents as Exs.D1 to D42. DW.1 did not

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tender himself for cross-examination. The trial court, after recording the evidence, hearing on both sides, and assessing oral and the documentary evidence, answered issue Nos.1 and 4 partly in the affirmative, issue No.2 and the additional issue in the negative, issue No.3 does not survive for consideration and issue No.5 as per the final

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order. The suit of the plaintiffs was partly decreed by rejecting their claim for partition in respect of item Nos.1 and 2 of suit A schedule landed properties. It is declared that the plaintiff Nos.1 and 2 are entitled to 7/105^th share each in item Nos.3 to 5 of suit A schedule landed properties and item Nos.1 to 6 of suit A(1) schedule house properties, vacant sites and shop building. Likewise, defendant No.1 is also entitled to 7/105^th share, defendant Nos.2 to 6 are collectively entitled to 28/105^th share and defendant Nos.7 and 8 are each entitled to 28/105^th share in the family properties, and the defendants are liable to pay separate court fees for carving out their respective shares as declared above.

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Defendant Nos.2 to 8 aggrieved by the

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judgment and preliminary decree passed in O.S.No.92/2008, preferred this appeal.

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Heard the learned counsel for defendant Nos.2 to 8 and learned counsel for the plaintiffs.

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Learned counsel for defendant Nos.2 to 8 submits that the plaintiffs and defendant No.1 have relinquished their rights in item Nos.2 to 5 of suit properties and house properties in favour of defendant Nos.7, 8, and deceased Basalingappa. The said relinquishment was reduced into writing in the form of a document dated 26.06.1991. In view of the relinquishment of rights in favour of defendant Nos.7, 8, and deceased Basalingappa, the plaintiffs have no right to seek partition in respect of the suit properties. She also contended that defendant No.8 filed a suit in O.S.No.320/1992 for the partition of family properties against defendant No.7, and deceased Basalingappa. The said suit ended in a compromise. The said compromise

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decree is binding on the plaintiffs. She submits that the trial court has not properly considered the documents produced by the defendants i.e., Ex.D1- relinquishment deed, which discloses that the plaintiffs and defendant No.1 had relinquished their rights in favour of defendant Nos.7, 8, and deceased Basalingappa. She further submits that the plaintiffs were aware of the compromise decree passed in O.S.No.320/1992. The suit filed by the plaintiffs is barred by limitation. Hence, on these grounds, she prays to allow the appeal.

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Per contra, learned counsel for the plaintiffs submits that suit schedule properties are the joint family properties of the plaintiffs and defendants. The plaintiffs and defendants are the members of a Hindu Undivided Joint Family, and no partition is effected. He submits that the compromise decree passed in O.S.No.320/1992 is not binding on the plaintiffs as they are not parties to the said suit. The plaintiffs were not aware about the compromise decree passed in O.S.No.320/1992. The said compromise

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decree was obtained behind the back of the plaintiffs. The trial court was justified in passing the impugned judgment. Hence, the impugned judgment passed by the trial court is just and proper and does not call for any interference. Accordingly, prays to dismiss the appeal.

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Perused the records and considered the

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submissions of the learned counsel for the parties.

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The points that arise for our consideration are

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as follows:

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

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1. Whether defendant No.3 prove that the plaintiffs and defendant No.1 had relinquished their rights in the suit properties?

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1. Whether the defendants prove that the judgment and decree passed by the trial court is perverse and arbitrary?

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What order or decree?

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Re-Point No.1 : It is the case of the plaintiffs that the suit schedule properties were owned and possessed by propositus Mallappa. He died, leaving behind his legal heirs. The suit schedule properties are the ancestral family properties of the plaintiffs and the defendants, and no partition is effected in respect of the suit schedule properties between the plaintiffs and defendant Nos.1 to 8. To prove that the suit schedule properties are the ancestral joint family properties, the plaintiffs have produced the documents, marked as, Exs.P1 to 6 are the record of rights. Ex.P1 is the record of rights in respect of land bearing Sy.No.304/4B; Ex.P2 is the record of rights in respect of land bearing Sy.No.304/4A stands in the name of Dalal Chennappa Danappa, Irappa, Ex.P3 is the record of rights in respect of land bearing Sy.No.431/1 stands in the name of Mallappa and Irappa, and Ex.P4 is the record of rights in respect of land bearing Sy.Nos.224/1 stands in the name of

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Mallappa, Suresh, Rajshekar basalingappa, Exs.P5 and 6 are the record of rights in respect of land bearing Sy.No.304/1, Exs.P7 to 12 are the house property extracts.

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From the perusal of the records produced by the plaintiffs, it discloses that the properties were the ancestral joint family properties of the plaintiffs and the defendants. In the course of the cross-examination of PW.1, it was suggested to PW.1 that plaintiffs and defendant No.1 relinquished their rights in respect of the suit schedule properties in favour of defendants Nos.7, 8, and deceased Basalingappa. The said suggestion was denied by the plaintiffs, and it is suggested to PW.1 that the plaintiffs were aware of their compromise decree passed in O.S.No.320/1992. The plaintiffs have no right to claim partition regarding the said properties. The said suggestion was denied by PW.1. The plaintiffs also examined two witnesses as PWs.2 and 3. They have deposed that suit schedule properties are the ancestral

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joint family properties of the plaintiffs and the defendants, and no partition is effected between the plaintiffs and the defendants. They also deposed that the plaintiffs and defendants are in joint possession of the suit schedule properties.

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In rebuttal, defendant No.3 was examined as DW.1. DW.1 has deposed that the suit schedule properties are ancestral joint family properties, and the plaintiffs and defendant No.1 relinquished their rights in favour of defendant Nos.7, 8, and deceased Basalingappa. The plaintiffs have no right to claim partition in suit schedule properties.

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From the perusal of the evidence of DW.1, DW.1 admits regarding the nature of the suit schedule properties, as the ancestral joint family properties and the relationship between the parties to the suit. In view of the admission of the defendants regarding the nature of the suit schedule properties, the plaintiffs have proved that the suit schedule properties are the joint family properties

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of the plaintiffs and the defendants. In view of the above

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discussion, we answer point No.1 in the affirmative.

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Re-Point No.2 : It is the defence of the defendants that the plaintiffs and defendant No.1 had relinquished their rights in favour of defendant Nos.7, 8, and deceased Basalingappa and to demonstrate that the plaintiffs and defendant No.1 executed the relinquished deed, produced the document, marked as Ex.D1. Ex.D1 is the unregistered relinquishment deed. By Ex.D1, the defendant Nos.7, 8 and deceased Basalingappa had not acquired any right, title or interest over the suit schedule properties. It is well established that if a value of an immovable property worth more than Rs.100, the release of rights on plaintiffs must be made through a registered instrument as per Section 17 of the Registration Act, 1908. Admittedly, Ex.D1 is an unregistered relinquishment deed. In the absence of a registered instrument, Ex.D1 cannot be accepted. The defendants failed to establish that plaintiffs and defendant No.1 had acquired the title by

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Ex.D1. Ex.D1 is inadmissible in evidence. In view of the above discussion, we answer point No.2 in the negative.

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Re-Point No.3 : The trial court, considering the admissions of the defendants regarding the relationship between the parties to the suit and the nature of the suit schedule properties, has rightly held that the plaintiffs are entitled to a share in the suit schedule properties and further, the defendant Nos.7, 8, and deceased Basalingappa have failed to prove that they have acquired title over the suit schedule properties by Ex.D1. The trial court has rightly decreed the suit of the plaintiffs. We do not find any error in the impugned judgment. We concur with the judgment passed by the trial court. Accordingly, we answer point No.3 in the negative.

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