Mallikarjunayya S/O. Sadashivayya Hiremath Vs Smt.Mallamma W/O. Shivarudrayya Hiremath

SADASHIVAYYA MALLIKARJUNAYYA HIREMATH, AGE: 45 YEARS, OCC: PRIVATE JOB AND CLAIMING TO BE AGRICULTURIST, R/O: RANEBENNUR, NOW AT "PUNYAKOTI NILAYA", PLOT NO. 105 KIADB LAYOUT, TAPOVAN NAGAR, HALIYAL ROAD, DHARWAD-03.

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RESPONDENT NO.1 TO 4 ARE R/O: ASUNDI, TQ: RANEBENNUR, DIST: HAVERI-581 115.

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… RESPONDENTS

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(BY SRI N.P. VIVEKMEHTA, ADVOCATE FOR R5; R1 TO R4 – NOTICE SERVED.)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CIVIL PROCEDURE CODE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 12.02.2018, PASSED IN O.S.NO.93/2015 ON THE FILE OF THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE AND PRINCIPAL JUDICIAL MAGISTRATE FIRST CLASS, RANEBENNUR, CONSEQUENTLY TO DISMISS THE SUIT AND ETC.,.

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IN RFA CROB. NO. 100006 OF 2018:

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BETWEEN:

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SADASHIVAYYA S/O MALLIKARJUNAYYA HIREMATH, AGE: 45 YEARS, OCC: AGRICULTURE AND PRIVATE JOB, R/O: ASUNDI, TQ: RANEBENNUR, NOW R/O: JAYANAGAR, DHARWAD.

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… CROSS OBJECTOR

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(BY SRI N.P.VIVEKMEHTA, ADVOCATE.)

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HC-KAR

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AND:

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SMT. MALLAMMA W/O. SHIVARUDRAYYA HIREMATH, AGE: 63 YEARS, OCC: HOUSEHOLD,

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SMT. VISHALAKSHI W/O. AJJAYYA HIREMATH, AGE: 49 YEARS, OCC: HOUSEHOLD,

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PRAVEENKUMAR S/O. AJJAYYA HIREMATH, AGE: 31 YEARS, OCC: AGRICULTURE,

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PRASHANT S/O. AJJAYYA HIREMATH, AGE: 29 YEARS, OCC: PRIVATE JOB,

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MALLIKARJUNAYYA S/O. SADASHIVAYYA HIREMATH, AGE: 67 YEARS, OCC: AGRICULTURE,

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CHANNABASAYYA S/O. MALLIKARJUNAYYA HIREMATH, AGE: 43 YEARS, OCC: VAIDIKA PROFESSION AND AGRICULTURE,

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VAGISHAYYA S/O. MALLIKARJUNAYYA HIREMATH, AGE: 38 YEARS, OCC: AGRICULTURE,

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ALL THE RESPONDENTS ARE R/O: ASUNDI, TQ: RANEBENNUR, DIST: HAVERI-581 115.

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… RESPONDENTS (BY SRI G.S. HULMANI, ADVOCATE FOR R5 TO R7) THIS CROSS OBJECTION IN IN RFA NO.100127/2018 IS FILED UNDER ORDER 41 RULE 22(1) OF THE CIVIL PROCEDURE CODE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 12.02.2018, PASSED IN O.S.NO.93/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND PRINCIPAL JUDICIAL MAGISTRATE FIRST CLASS, RANEBENNUR AND ALLOW THE CROSS OBJECTION, TO THE EXTENT OF GRANTING SHARE TO PLAINTIFFS NO.1 TO 4 IN SUIT SCHEDULE A1, A2 AND A4 PROPERTIES AND TO DISMISS THE APPEAL FILED BY THE APPELLANTS AND ETC.,.

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HC-KAR

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THIS APPEAL AND CROSS OBJECTION COMING ON FOR FURTHER ARGUMENTS THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR)

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The appeal in RFA No.100127/2018 is filed by defendants No.1, 3 and 4 challenging the judgment and decree dated 12.02.2018, passed by the Principal Senior Civil Judge and Principal JMFC, Ranebennur, in O.S.No.93/2015, insofar as not granting partition in respect of item No.3 of suit schedule A property holding that this property is self acquired property of defendant No.2. Whereas, RFA CROB No.100006/2018 is filed by defendant No.2 contending that the plaintiffs being the sisters are not entitled for share in the suit schedule properties.

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Heard the arguments of the learned counsels appearing for the respective parties and perused the trial Court records and the material placed before the Court.

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HC-KAR

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For the purpose of convenience and easy

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reference, ranking of the parties is referred to as per their status before the trial Court.

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The plaintiffs have filed suit for partition claiming their 1/3^rd share together in the suit schedule properties and for separate possession by metes and bounds by contending that all the suit schedule properties

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are ancestral and joint family properties. The plaintiffs have produced the genealogy as follows:

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²æÃªÀÄw ZÀ£Àß§¸ÀªÀé (¥ÉÆÃw)

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ªÀÄ°èPÁdÄð£À (r.1) C£Àß¥ÀÆtðªÀé (¥ÉÆÃw) ªÀÄ®èªÀÄä (ªÁ¢) ¸ÀÄ²Ã®ªÀé ²ªÀgÀÄzÀæAiÀÄå (¥ÉÆÃw) CdÓAiÀÄå (¥ÉÆÃw) ¸ÀzÁ²ªÀAiÀÄå ZÀ£Àß§¸ÀAiÀÄå ªÁVÃ±À UËgÀªÀÄä ¤Ã®ªÀé (r.2) (r.3) (r.4) «±Á¯ÁQë (ªÁ¢.2) ¥Àæ«ÃtPÀÄªÀiÁgÀ (ªÁ¢.3) ¥Àæ±ÁAvÀ (ªÁ¢.4)

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HC-KAR

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Plaintiff No.1 and one Annapurna who is mother

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of plaintiffs No.2 to 4 and defendant No.1 are children of original propositus namely Sadashivayya Hiremath. It is contended that the suit schedule properties are ancestral and joint family properties. Hence, filed suit for partition and separate possession by metes and bounds.

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Defendants No.1, 3 and 4 have filed their

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written statement and claimed partition in the suit schedule properties.

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Defendant No.2 has filed separate written statement admitting all the suit schedule properties are ancestral properties except item No.3 of suit schedule A properties. It is the defence of defendant No.2 that the item No.3 of suit schedule A properties is his self acquired property and thus is not amenable for partition. Therefore, prays to dismiss the suit so far as the property item No.3 in suit schedule A properties and decree the suit in respect of other properties. Defendant No.2 has also filed counter

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HC-KAR

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claim to declare that item No.3 of suit schedule A property

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is his self acquired property.

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Based on the pleadings, the trial Court has

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framed the following:

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ISSUES

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Whether the plaintiffs prove that, suit schedule properties are the joint family ancestral properties?

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Whether defendant No.1, 3 and 4 proves that, the genealogy is not correct?

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Whether defendant No.1, 3 and 4 proves that, Court fee is not proper?

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Whether the defendant No.1, 3 and 4 proves that, suit schedule-A item No.3 property is purchased by the out of their own self earnings?

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Whether defendant No.2 proves that, suit schedule-A item No.3 property is his self acquired property?

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Whether defendant No.2 proves that, defendant Nos.3 and 4 have got forged his signature on the alleged consent deed?

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Whether defendant No.2 is entitled for the relief claimed in the counter claim?

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HC-KAR

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Whether the plaintiffs are entitled for 1/3^rd share in the suit schedule properties?

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What order or decree?

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On behalf of plaintiffs, plaintiff No.1 is examined as PW.1 and got marked the documents as Exs.P1 to P3. On behalf of defendants, defendant No.2 is examined as DW.1, defendant No.3 is examined as DW.2 and three witnesses are examined as DWs.3 to 5 and got marked the documents as Exs.D1 to D.41.

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The trial Court has decreed the suit of the plaintiffs by granting share of 1/3^rd in the suit schedule item Nos.1, 2 and 4 in the suit schedule properties and prayer of the plaintiff for partition and separate possession in respect of item No.3 of suit schedule A property was rejected.

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The trial Court also decreed the counter claim declaring that item No.3 of suit schedule A property is self

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HC-KAR

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acquired property of defendant No.2 and he is the absolute owner of the said property.

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Being aggrieved by this judgment and decree, defendants No.1, 3 and 4 have preferred appeal so far as against not granting decree of partition and separate possession in respect of suit schedule item No.3 of schedule A property. There is no grievance of defendants No.1, 3 and 4 so far as granting of decree for partition in respect of other properties. Defendant No.2 has filed cross objections on the ground that the plaintiffs being daughters are not entitled for share in the suit schedule properties. Therefore, prays to allow the cross objections.

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The trial Court assigned reasons by holding that item Nos.1, 2 and 4 of suit schedule A properties are ancestral and joint family properties and simultaneously held that item No.3 of schedule A properties is self acquired property of defendant No.2. Thus not granted decree for partition in respect of item No.3 of suit schedule

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HC-KAR

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A properties. The trial Court assigned reason that defendant No.2 by placing his oral and documentary evidence has proved that item No.3 of suit schedule A properties is self acquired property of defendant No.2.

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Learned counsel for appellants/defendants No.1, 3 and 4 submitted that item No.3 of suit schedule A properties is also joint family property amenable for partition. It is submitted that all the defendants have paid their respective contribution and accordingly entered in the agreement of sale in the name of father of defendant No.1. This itself proves the fact that item No.3 of suit schedule A properties is joint family property. But subsequently based upon it, the defendant No.2 has got registered the sale deed exclusively in his favour only. Therefore, submitted that the findings given by the trial Court so far as item No.3 of schedule A property is perverse and illegal. Therefore, prays to allow the appeal and grant decree so far as item No.3 of suit schedule A properties also.

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HC-KAR

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Learned counsel Sri N.P.Vivekmehta appearing

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on behalf of respondent No.5 fairly submitted that in view of the decision of the Hon’ble Supreme Court in the case of Vineeta Sharma vs. Rakesh Sharma and others, reported in AIR 2020 Supreme Court 3717 , the plaintiffs are also entitled for shares in the suit schedule properties. Therefore, prays to dispose of the appeal and the cross objections accordingly.

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Having heard the arguments and perusing the

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oral and documentary evidence on record, the following points would arise for consideration in this appeal.

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i) Whether, under the facts and circumstances involved in the case, defendant No.2 proves the fact that item No.3 of suit schedule A property is his self acquired property?

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ii) Whether, under the facts and circumstances involved in the case, defendants No.1, 3 and 4 prove the fact that item No.3 of suit schedule A property is also joint family property amenable for partition?

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iii) Whether, under the facts and circumstances involved in the case, the

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HC-KAR

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plaintiffs are entitled for share in the suit schedule properties?

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iv) Whether, under the facts and circumstances involved in the case, the impugned judgment and decree of the trial Court needs interference by this Court?

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The genealogy stated in the suit is not disputed.

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The only disputed fact is, whether item No.3 of suit schedule A property is joint family property of the joint family of the plaintiffs and defendants or is it the self acquired property of defendant No.2 alone, is the question to be considered. Admittedly the plaintiffs have not challenged the findings given by the trial Court in respect of item No.3 of suit schedule A properties. But defendant Nos.1, 3 and 4 have challenged the findings on issue Nos.4 and 5. The trial Court has given finding on issue Nos.4 and 5 that based on the documentary and oral evidence and considering the pleadings of defendants No.1, 3 and 4 held that item No.3 of suit schedule A properties is self acquired property of defendant No.2.

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HC-KAR

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Defendant No.2 in his written statement has pleaded that he is an Engineer by profession working in Aster Tele Service, Hyderabad and was receiving salary of Rs.26,000/- per month with Rs.350/- per day as TA and DA. It is pleaded that out of his savings in his salary, he has purchased item No.3 of suit schedule A properties. Therefore, it is the case of defendant No.2 that this property is his self acquired property.

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Ex.D27 is the appointment order, appointing defendant No.2 as engineer in Aster Industries, Secunderabad on 17.01.2005. The total emoluments is Rs.20,000/- per month with other daily allowances including free single accommodation (sharing) and free conveyance from office to site and back. Ex.D28 is the salary slip of defendant No.2 for the month of January2007 and the gross earning is Rs.28,000/- and net payable is Rs.27,800/-, after deduction of professional tax. Further, Ex.D28 is the salary slips from January-2007 to August-2007. Exs.D29 to Ex.D32 are the appointment

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HC-KAR

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orders pertaining to defendant No.2, appointing defendant No.2 to the position of Senior Engineer - Site Design. As per these documentary evidence, the total salary with all other emoluments is Rs.6,32,418/- per annum. Exs.D33 and Ex.D34 are income tax returns of defendant No.2. Defendant No.2 is an income tax payee. Further, Exs.D35 and Ex.D36 are bank passbooks saving regular mud transactions. Defendant No.2 had sufficient savings. Ex.D37 is the installment paid receipts. It is contended by defendant No.2 that he has raised a loan from Primary Cooperative Agriculture And Rural Development Bank, Ranebennur. This Ex.D37 are the receipts having paid the installments towards loan. All these documentary evidence proved the fact that defendant No.2 was having sufficient savings of amount to purchase the property item No.3 of suit schedule A properties.

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Ex.D38 is the original agreement of sale, which

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is executed in the name of defendant No.1, who is the father of defendant No.2. Defendant No.2 has explained

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HC-KAR

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why the agreement of sale was executed in the name of defendant No.1 that the friend of defendant No.2 was suffering from ill-health and had been to see his friend, therefore, on that day, agreement of sale was executed in the name of defendant No.1 on behalf of defendant No.2. But, as discussed above, the position of defendant No.2, his salary and savings etc., and also, defendant No.2 by raising a loan from the bank as above stated, has purchased the item No.3 of suit schedule A properties. Therefore, just because, an agreement of sale was executed in the name of defendant No.1, that does not mean that defendants No.1, 3 and 4 have contributed their funds for purchasing the property item No.3 of suit schedule A properties.

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Defendant No.2, by pleading all the above stated facts and producing the evidence as discussed above, has successfully proved the fact that the property item No.3 of suit schedule A properties is the self acquired property. Just because, in the family, when there is no

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HC-KAR

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partition and if any member of family/co-parcener acquires property out of his self earning, that cannot be termed as a joint family property and also cannot be termed as having purchased from the joint nucleus fund. The contentions of defendants No.1, 3 and 4 could have been accepted if these defendants No.1, 3 and 4 proved that there is joint nucleus fund for purchasing property. But Defendants No.1, 3 and 4 in their written statement, have not pleaded how item No.3 of suit schedule A properties is acquired. Therefore, defendants No.1, 3 and 4 absolutely do not have any plea in their written statement, except denying that item No.3 of suit schedule A properties is self acquired property of defendant No.2. Apart from denial, defendants No.1, 3 and 4 ought to have stated what was the source of joint nucleus fund for purchasing item No.3 of suit schedule A properties. But, absolutely in this regard, there is no pleadings and evidence on behalf of defendants No.1, 3 and 4. Therefore, the Trial Court, in this regard, has correctly appreciated the records and

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HC-KAR

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rightly came to conclusion that item No.3 of suit schedule A properties is the self acquired property of defendant No.2.

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Mere putting suggestions by defendant No.1, 3 and 4 to defendant No.2 that this property is not a self acquired property and its denial does not amount to proving the fact that the property was purchased out of a joint nucleus fund. Ex.D41 is the registered Sale Deed dated 28.06.2007 in the name of defendant No.2, which refer to item No.3 of suit schedule A properties. Defendants No.1, 3 and 4 are mainly relying on Ex.D38agreement of sale, which is in the name of defendant No.1, who is the father of defendant Nos.2 to 4. Just because an agreement of sale was in the name of defendant No.1, who is the father of defendant Nos.2 to 4, therefore this property is joint family property cannot be accepted. It is pertinent to mention here that evidence of DW.3, who is vendor of item No.3 of suit schedule A properties, stated that, on the day of agreement, he had

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HC-KAR

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executed Ex.D38 agreement. Defendant No.2 was not keeping well, therefore, agreement was executed in the name of defendant No.1. Thereafter, as per Ex.D39, the said agreement of sale was cancelled and subsequently, DW.3, being vendor, had executed registered Sale Deed in favour of defendant No.2. Therefore, when both oral and documentary evidence in this regard are perused, there is no perversity in the findings arrived at by the Trial Court. Therefore, the findings given by the Trial Court on Issue Nos.4 and 5 are perfectly legal one. Therefore, there is no need to make interference in the judgment and decree passed by the Trial Court, so far as finding that item No.3 of schedule-A property is self acquired property of defendant No.2.

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The cross objection filed by defendant No.2 to the effect that the plaintiffs are not entitled to share in the properties. As per the judgment of Hon’ble Supreme Court in the case of Vineeta Sharma (supra), defendant No.1, being son and plaintiffs Nos.2 to 4 are the daughters of

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HC-KAR

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Annapurna, all the three children, who are daughters and defendant No.1, being son, are entitled to equal 1/3^rd share. Therefore, the quantum of share allotted by the Trial Court is also found to be correct and hence, cross objection is liable to be dismissed. Accordingly, I answer points No.1 and 3 in the affirmative and points No.2 and 4 in the negative.

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In the result, I proceed to pass the following:

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ORDER

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i) The appeal and cross-objection are dismissed.

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ii) The judgment and decree dated 12.02.2018 passed in O.S.No.93/2015 on the file of Principal Senior Civil Judge and Principal JMFC, Ranebennur, is confirmed.

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iii) No order as to cost.

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Sd/(HANCHATE SANJEEVKUMAR) JUDGE

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MRK-para 1 to 18. PMP-para 19 to end. CT:BCK/LIST NO.: 1 SL NO.: 33

Mallikarjunayya S/O. Sadashivayya Hiremath v. Smt.Mallamma W/O. Shivarudrayya Hiremath

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Mallikarjunayya S/O. Sadashivayya Hiremath v. Smt.Mallamma W/O. Shivarudrayya Hiremath

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