Priti D/O Subhash Mutgekar Vs Subhash S/O Gundu Mutgekar

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NC: 2025:KHC-D:8225 RFA No. 100188 of 2014

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 1^ST DAY OF JULY, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO. 100188 OF 2014 (DEC/PAR)

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BETWEEN:

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PRITI D/O SUBHASH MUTGEKAR,

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AGE: 31 YEARS, OCC: PRIVATE SERVICE,

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R/O: C.T.S. NO.4078, MAIN ROAD, ANGOL, BELAGAVI, TQ: AND DIST: BELAGAVI-590 003.

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HARSHAVARDHAN S/O SUBHASH MUTGEKAR, AGE: 23 YEARS, OCC: PRIVATE SERVICE, R/O: C.T.S. NO.4078, MAIN ROAD, ANGOL, BELAGAVI,

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TQ: AND DIST: BELAGAVI-590 003.

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… APPELLANTS

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(BY SRI. MAHANTESH R. PATIL, ADVOCATE)

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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AND:

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SUBHASH S/O GUNDU MUTGEKAR, SINCE DECEASED BY HIS LR’S., APPELLANT NO.1 AND 2 ARE LEGAL HEIRS OF R1.

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ACHUT S/O PRABHAKAR PATANKAR, SINCE DECEASED BY HIS LR’S.,

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2A. APARNA W/O ACHUT PATANKAR, AGE: 51 YEARS, OCC: HOUSEHOLD WORK, R/O: KOSTI GALLI, MIRAJ, TQ: MIRAJ,

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NC: 2025:KHC-D:8225 RFA No. 100188 of 2014

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HC-KAR

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DIST: SANGALI,

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STATE: MAHARASHTRA-416 410.

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2B. AKANKSHA D/O ACHUT PATANKAR, AGE: 26 YEARS, OCC: STUDENT, R/O: KOSTI GALLI, MIRAJ, TQ: MIRAJ, DIST: SANGALI, STATE: MAHARASHTRA-416 410.

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2C. ARADHYA S/O ACHUT PATANKAR, AGE: 22 YEARS, OCC: STUDENT, R/O: KOSTI GALLI, MIRAJ, TQ: MIRAJ, DIST: SANGALI, STATE: MAHARASHTRA-416 410.

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2D. PRAJAKTA D/O ACHUT PATANKAR, AGE: 20 YEARS, OCC: STUDENT, R/O: KOSTI GALLI, MIRAJ, TQ: MIRAJ, DIST: SANGALI, STATE: MAHARASHTRA-416 410.

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… RESPONDENTS

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(BY SRI. SHREEVATSA S. HEGDE, ADVOCATE FOR R2(A-D); APPELLANT NO.1 AND 2 ARE LEGAL HEIRS OF DECEASED R1)

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THIS RFA IS FILED UNDER SECTION 96 AND R/W ORDER 41 RULE 1 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED: 10.10.2014 PASSED IN O.S. NO.150/2012 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, BELGAUM.

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

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NC: 2025:KHC-D:8225 RFA No. 100188 of 2014

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HC-KAR

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ORAL JUDGMENT

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

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This appeal is filed by the plaintiffs/appellants challenging the judgment and decree passed in OS No.150/2012, dated 10.10.2014, by the II Additional Senior Civil Judge, Belgaum (hereinafter referred to as ‘trial Court’), thereby, suit filed by the plaintiffs for declaration, partition and separate possession and consequential relief of injunction is dismissed.

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For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court.

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The plaintiffs contended that the suit property is

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house property and open space measuring 489 square feets. Out of 1005.333 square meters, located from Eastern towards Southern side in C.T.S. No.4078, situated at Main road Angol, Bhagya nagar, Belagavi city.

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HC-KAR

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The defendant No.1 is father of the plaintiffs.

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Defendant No.2 is purchaser of house property at open space i.e., suit property of totally measuring 489 square feets. described above. As per plaintiffs, the Schedule-I property measuring 1005.333 square meters was purchased by father of defendant No.1 who is grand father of the plaintiffs through sale deed dated 10.11.1960. The defendant No.1 has sold out a portion of property which is 489 square feets which is discussed in Schedule-II in favour of defendant No.2 which rests in the rights of plaintiffs, as the plaintiffs having share in the suit property. Therefore, filed a suit to declare that the sale deed executed by defendant No.1 in favour of defendant No.2 in respect of suit Schedule-II property is not binding on the plaintiffs and for partition of the property.

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The written statement of defendant No.1 was not accepted as it is belated one, hence, amounting to, defendant No.1 has not filed a written statement and contested the suit.

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HC-KAR

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The defendant No.2 filed written statement and

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contended that the entire suit is false one in collusion between plaintiffs and defendant No.1. The defendant No.2 is a bonafide purchaser of the Schedule-II property from the defendant No.1 after verifying all the necessary documents and confirming the fact that the defendant No.1 is absolute owner of the property. Therefore, prays to dismiss the suit as the suit is not maintainable.

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Upon these pleadings, the trial Court has framed the following issues:

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ISSUES

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i. Do the plaintiffs prove that the suit properties are the joint family properties of the plaintiffs and defendant No.1 and that they are in joint possession of the same?

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ii. Do the plaintiffs prove that the defendant No.1 in a improper mental condition and without any family necessity has alienated the suit properties illegally to

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HC-KAR

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defendant No.2 under sale deed dated 22.03.2011?

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iii. Does the defendant No.2 proves that the suit properties are the self-acquired properties of defendant No.1 over which the plaintiffs have no manner of right?

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iv. Does the defendant No.2 proves that he is a bonafide purchaser for valuable consideration and in exclusive possession of suit properties?

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v. Are the plaintiffs entitled to the relief of declaration as sought for?

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vi. Are the plaintiffs entitled to any share in the suit properties? If so to what extent and which of the properties?

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vii. Are the plaintiffs entitled to relief of perpetual injunction as sought for?

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viii. What order or decree?

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The trial Court has dismissed the suit on the reason that, there is no evidence that the suit schedule property is ancestral property or otherwise it is coparcenary property. Hence, the plaintiffs are not having

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HC-KAR

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any right or claim over the suit property as it is amounting to self-acquired property of the defendant No.1 after death

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of the father of defendant No.1. Therefore, on these reasons, dismissed the suit.

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Being aggrieved by the dismissal of suit, the plaintiffs have preferred the present appeal by raising various grounds and the learned counsel for the appellants/plaintiffs submitted that Ex.P1 is the property extract, in which the father of the defendant No.1 has given varadi to the revenue authorities and accordingly, the property is inherited to defendant No.1 and therefore, the plaintiffs are also having equal right and share as that of defendant No.1. Therefore, submitted that the dispossession made by the defendant No.1 in favour of defendant No.2 is not binding on the plaintiffs and thus, the plaintiffs are entitled to equal share along with the defendant No.1. Therefore, prays to allow the appeal.

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HC-KAR

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On the other hand, the learned counsel for the respondent/defendant No.2 submitted that the suit schedule property is not either ancestral property or coparcenary property, but it is self acquired property of the defendant No.1, as he has inherited the property through his father as per Section 8 of the Hindu Succession Act. Therefore, the plaintiffs do not have any right of share in the property and this is correctly appreciated by the trial Court. Therefore, prays to dismiss the appeal.

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Upon hearing, the points that arise for

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consideration are as follows:

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i. Whether, under the facts and circumstances involved in the case, plaintiffs prove that the suit schedule property is ancestral property so as to make claim of share along with defendant No.1?

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ii. Whether, under the facts and circumstances involved in the case,

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HC-KAR

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defendant No.2 proves that the suit schedule property is self acquired property of the defendant No.1 and as per Section 8 of the Hindu Succession Act, thus, he is bonafide purchaser of the property from the defendant No.1?

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iii. Whether, the judgment and decree passed by the Trial Court requires interference by this Court?

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To prove the suit schedule property is either

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ancestral or coparcenary property, there is no evidence by

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the plaintiffs. Ex.P1 is the property extract which shows that the father of defendant No.1 has inherited property to the defendant No.1. Admittedly, the father of defendant No.1 who is grand father of the plaintiffs, purchased the suit schedule property through registered sale deed dated 10.11.1960. Therefore, the property is not ancestral property or coparcenary property. The total extent of property is 1005.333 square meters, out of which, the defendant No.1 had sold out the portion of property totally measuring 489 square feets. It is evidence of defendant

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HC-KAR

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No.2 that he is bonafide purchaser, as the property is inherited through father of defendant No.1. Hence, it is not a coparcenary or ancestral property and after confirming this fact, he has purchased the property for valuable consideration.

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It is submission made by the counsel for the appellants that the father of defendant No.1 has given varadi bequeathing the property in favour of defendant No.1. Hence, Section 8 of Hindu Succession Act is not applicable.

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On the other hand, it is argument of the counsel for respondent/defendant No.2 that whether varadi was given or not, that does not make difference in application of Section 8 of Hindu Succession Act.

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As discussed above, the suit schedule property is not ancestral property or coparcener property. Admittedly, the property is acquired by father of defendant No.1 on 10.11.1960 through registered sale deed. Then,

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HC-KAR

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the said property is inherited to the defendant No.1. Thus, in this factual matrix, the trial Court is correct, holding that the suit property is neither ancestral nor coparcenery property.

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Then, come to the question regarding the applicability of Section 8 of Hindu Succession Act. In case of General Rules of Succession, in the case of males, as per Section 8 of Hindu Succession Act, the defendant No.1 being the son is Class-I legal heir of his father. Thus, he inherits the property as per Section 8 of the Hindu Succession Act. Thus, it has become absolute property of the defendant No.1. As per this, the plaintiffs do not have right during lifetime of defendant No.1. Therefore, when the defendant No.1 has inherited the suit property being Class-I legal heir as per Section 8 of Hindu Succession Act, then, during lifetime of the defendant No.1 who is father of plaintiffs, the plaintiffs do not have right of share to make claim on it. Hence, this is rightly considered by the trial Court.

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NC: 2025:KHC-D:8225 RFA No. 100188 of 2014

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HC-KAR

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Further, regarding the bonafideness of purchase

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of property by defendant No.2, the defendant No.2 had purchased portion of property which is only 489 square feets through registered sale deed as per Ex.P2 for consideration. The plaintiffs have not led any evidence that the consideration amount was inadequate or the sale is sham or by playing fraud. Therefore, absolutely there is no evidence in this regard. The defendant No.1 has inherited the property from his father and sold out the portion of property as described in Schedule-II in the Schedule. Therefore, it is proved that defendant No.2 is a bonafide purchaser. Accordingly, I answer point No.(i) and (iii) in the ‘negative’ and point No.(ii) in the ‘affirmative’.

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