Kumari Roopa D/O. Suresh Kodli, Vs Smt. Rekha Ramasidda Adin

NEAR KURABAR POOL AND YALLAMMA TEMPLE, GOKAK, DIST: BELAGAVI. SINCE MINOR REPRESENTED BY HER MINOR GUARDIAN APPELLANT NO.4 SMT. GOURAWWA W/O. SURESH KODLI.

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Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench

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KUMARI LAXMI D/O. SURESH KODLI, AGE 13 YEARS, OCC: STUDENT, R/O. C/O. DEVAPPA ULLAGADI, NEAR KURABAR POOL AND YALLAMMA TEMPLE, GOKAK, DIST: BELAGAVI. SINCE MINOR REPRESENTED BY HER MINOR GUARDIAN APPELLANT NO.4 SMT. GOURAWWA W/O. SURESH KODLI.

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KUMARI SRASHTI D/O. SURESH KODLI, AGE 9 YEARS, OCC: STUDENT, R/O. C/O. DEVAPPA ULLAGADI, NEAR KURABAR POOL AND YALLAMMA TEMPLE, GOKAK, DIST: BELAGAVI.

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SINCE MINOR REPRESENTED BY HER MINOR

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GUARDIAN APPELLANT NO.4

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SMT. GOURAWWA W/O. SURESH KODLI.

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SMT. GOURAWWA W/O. SURESH KODLI, AGE: 42 YEARS, OCC: AGRICULTURE & HOUSEHOLD WORK, R/O. C/O. DEVAPPA ULLAGADI, NEAR KURABAR POOL AND YALLAMMA TEMPLE, GOKAK, DIST: BELAGAVI.

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…APPELLANTS

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(BY SRI. SAMEER MULLA, ADV. FOR SRI. G. B. NAIK, ADVOCATE)

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AND:

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SMT. REKHA RAMASIDDA ADIN, AGE 38 YEARS, OCC: HOUSEHOLD WORK, R/O. UPPARATTI VILLAGE, TQ: GOKAK, DIST: BELAGAVI.

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SMT. RUKMINI PRABHAKAR WARI, AGE 40 YEARS, OCC: HOUSEHOLD WORK, R/O: JALAPUR VILLAGE, TQ: RAIBAG, DIST: BELAGAVI.

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SMT. LAXMAVVA W/O. NAGAPPA CHUNAPPAGOL, AGE 32 YEARS, OCC: HOUSEHOLD WORK, R/O: KANASAGERI VILLAGE, TQ: GOKAK, DIST: BELAGAVI.

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SMT. KEMPAVVA, W/O. BEERAPPA MUNYAL, AGE 28 YEARS, OCC: HOUSEHOLD WORK, R/O. BASALINGUNDI VILLAGE, TQ: GOKAK, DIST: BELAGAVI.

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(SMT. KASTURI W/O. BEERSIDAPPA KODLI),

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DELETED AS PER ORDER DATED 22.11.2024 AS HER LRS ARE ALREADY ON RECORD AS APPELLANT NOS.1 TO 4 AND RESPONDENT NOS.1 TO 4, 6 & 7.

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KUMARI VIDYA D/O. BEERSIDAPPA KODLI, AGE 32 YEARS, OCC: HOUSEHOLD WORK, R/O. BENACHINMARD VILLAGE, TQ: GOKAK, DIST: BELAGAVI.

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SHRI. MAYAPPA S/O. BEERASIDAPPA KODLI, AGE 35 YEARS, OCC: AGRICULTURE, R/O. BENCHINMARD VILLAGE TQ: GOKAK, DIST: BELAGAVI.

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…RESPONDENTS

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(BY SRI. DINESH M. KULKARNI, ADV. FOR R1 TO R4 AND R7; AS PER VIDE ORDER DATED 22.11.2024, R1 TO R4, R6 & R7 AND APPELLANT NO.1 TO 4 ARE LRS OF DECEASED R5)

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THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER XLI RULE 1 & 2 R/W. SECTION 96 OF CPC, 1908, AGAINST THE JUDGMENT AND DECREE DATED 29.09.2016 PASSED IN O.S. NO.139/2012 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, GOKAK AND DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA)

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Heard the learned counsel for the appellants

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and the learned counsel Sri.Dinesh Kulkarni for respondent Nos.1 to 4 and 7.

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This appeal is filed by the defendant Nos.2 to 5 challenging the judgment and decree dated 29.09.2016 passed by the I Addl.Senior Civil Judge, Gokak in O.S.No.139/2012 (for short, ‘the trial Court’).

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Plaintiffs have filed suit for partition and separate possession of their share. It was seriously disputed by the defendant Nos.2 to 5 and after trial the trial Court decreed the suit. Being aggrieved by the same, defendant Nos.2 to 5 preferred this appeal.

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The parties are referred to as per their rankings before the Trial Court.

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It is the case of the plaintiffs that original propositus was one Beerasiddappa. He died intestate on 09.12.1998, leaving behind his wife i.e., defendant No.1 and seven children. They are Suresh, Rukmini (plaintiff

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No.2), Rekha (Plaintiff No.1), Mayappa (defendant No.7), Laxmawwa (plaintiff No.3), Vidya (defendant No.6) and Kempawwa (plaintiff No.4). The said Suresh died on 21.09.2005 leaving behind his wife and children i.e., defendant Nos.2 to 4. The suit schedule properties are ancestral joint family properties. Plaintiffs and defendants are entitled for a share in the said properties. They demanded for partition and defendants refused to effect partition and therefore they were constrained to file suit. With these reasons prayed to decree the suit.

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Defendant Nos.2 to 5 filed genealogy and also

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admitted suit properties were ancestral properties. According to their contention, plaintiffs and other daughters have executed consent deed dated 23.08.1999 as per Ex.D4 relinquishing their right over the suit properties. Therefore plaintiffs have no right over the suit properties. With these reasons, prayed to dismiss the suit.

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From the rival contentions of the parties, the trial Court framed the following issues:

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ISSUES

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1. Whether defendant No.5 proves that plaintiff and rest of the defendants had relinquished their rights over the suit properties.

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1. Whether plaintiffs are entitled for the relief?

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1. What order or decree.

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Plaintiffs to prove their case examined one

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witness as PW1 and marked 8 documents as per Exs.P1 to P8. Defendants examined three witnesses as DW1 to DW3

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and marked six documents as per Exs.D1 to D6.

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The Trial Court after hearing both the parties,

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appreciating pleading and evidence on record answered issue Nos.1 and 2 in the affirmative and decreed the suit.

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During the pendency of this appeal, the original defendant No.1 (respondent No.5 in this appeal) was deceased and it was reported that her legal heirs are already on record.

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The following questions arise for determination:

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i. Whether the learned trial Judge erred & considering the daughter as coparcener in allotting share to them?

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ii. Whether the learned trial Judge erred in holding that Ex.D4 was not proved and no right could be transferred by the said coparcener in the favour of sons of Beerasiddappa?

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The finding of this Court on the aforesaid questions are in the negative for the following reasons.

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Learned counsel for the appellants argued in line with the ground of the appeal memo. His main contention is that plaintiffs are daughters. Their father died during the year 1998 and they have executed relinquishment deed in favour of the deceased Suresh. Therefore they have no right to claim partition.

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Admittedly, Ex.D4 is unregistered document. Plaintiffs have denied execution of the said document. It was not signed by all the daughters of Beerasiddappa. The trial Court in the impugned judgment at paragraphs 15 to 20 thoroughly discussed the said document and held that execution of the said document is not proved. On re-

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appraising of the oral and documentary evidence, this Court is of the view that the said finding of the learned trial Judge is correct.

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As per the provisions of Registration Act, when a property worth more than Rs.100/- if transferred, it shall be by a registered document. Admittedly Ex.D4 is not registered document. For the sake of discussions even if it is believed that it was executed by the plaintiffs, then also the right over the plaintiffs that immovable properties cannot be transferred through the said document.

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The learned advocate for the plaintiffs submits that the said document even do not reflect that plaintiffs had relinquished their right over the properties but it is a consent letter to change the name of the deceased Suresh and Mayappa in the revenue records. Therefore by any stretch of imagination it cannot be considered as a document executed to relinquish right over the properties by the plaintiffs.

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In the recent judgment of the Hon’ble Apex Court in the Case of Vineeta Sharma v Rakesh Sharma

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and others reported in AIR 2020 SUPREME COURT

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3717 it is held that female heir is entitled for a share as

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that of a son and Section 6 of the (Amended) Hindu Succession Act, would come into force from the date of enactment of the Hindu Succession Act, 1956. In view of the said judgment, contention of the appellants that Beerasiddappa died during 1998 and hence his daughter has no right to claim share, is not tenable.

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During the pendency of the appeal, mother of the plaintiffs i.e., respondent No.5 herein, died on 28.09.2023. Therefore whatever share has to be shared between her children. Accordingly plaintiff Nos.1 to 4 and defendant No.7 each are entitled to 1/7^th share. Defendant Nos.2 to 5 together are entitled for 1/7^th share. Accordingly decree passed by the trial Court needs modification, in view of subsequent event.

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For the aforesaid discussions, this Court answered both the questions in the negative and proceed to pass the following:

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ORDER

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i. Appeal is dismissed.

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ii. The impugned judgment and award dated 29.09.2016 passed by the I Addl.Senior Civil Judge, Gokak in O.S.No.139/2012 is modified.

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iii. Plaintiff Nos.1 to 4 and defendant No.7 each are entitled to 1/7^th share and defendant Nos.2, 3, 4 and 5 together are entitled for 1/7^th share.

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iv. Plaintiffs are entitled for partition and separate possession of their share in the said properties.

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v. Draw decree accordingly.

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vi. Send back the TCR along with copy of this judgment.

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Sd/(UMESH M ADIGA) JUDGE

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KGK /CT-AN

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List No.: 1 Sl No.: 5

Kumari Roopa D/O. Suresh Kodli, v. Smt. Rekha Ramasidda Adin

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Kumari Roopa D/O. Suresh Kodli, v. Smt. Rekha Ramasidda Adin

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