Sri.Sadashiv S/O Parappa Arenad Vs Smt.Chandrika W/O Shankar Alagundi

THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 04.09.2019 PASSED IN O.S.NO.86/2016 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

¶33

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

¶34

3 - NC: 2025:KHC-D:7378-DB RFA No. 100459 of 2019

¶35

HC-KAR

¶36

CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K

¶37

ORAL JUDGMENT

¶38

(PER: THE HON'BLE MR. JUSTICE R.NATARAJ)

¶39

The defendants in O.S. No.86/2016 on file of the Additional Senior Civil Judge and JMFC, Mudhol, have filed this Regular First Appeal challenging the judgment and decree dated 04.09.2019 passed therein, by which the suit was decreed and it was declared that the plaintiff was entitled to 1/5^th share in the suit schedule properties.

¶40

For the sake of convenience and easy understanding, the parties shall henceforth be referred to as they were arrayed before the Trial Court.

¶41

The suit in O.S. No.86/2016 was filed for partition and separate possession of plaintiff’s half share in the suit schedule property. The plaintiff claimed that she and the defendants were siblings and children of Sri. Parappa and Smt. Basavva. She claimed that her father Parappa died on 18.12.2007 and her mother died on 18.11.2010. She claimed that she and the defendants were members of the joint family

¶42

4 - NC: 2025:KHC-D:7378-DB RFA No. 100459 of 2019

¶43

HC-KAR

¶44

which possessed suit items No.1 to 5. She claimed that the suit properties fell to the share of Parappa at a partition between him and his brothers and sisters. In so far as the suit item No.6 was concerned, she claimed that it was purchased by Sri.Parappa from out of the income derived from the properties at suit items No.1 to 5. Therefore, she contended that all the suit properties were ancestral and joint family properties. She claimed that the name of defendant No.1 was appearing in the revenue records and therefore, taking advantage of it, he was denying half share of the plaintiff in the suit schedule properties. The plaintiff was, therefore, advised to file a suit for partition.

¶45

Defendant No.1 contested the suit denying the

¶46

claim of the plaintiff. He claimed that the suit properties were the self-acquisition of Parappa and that he transferred the land bearing R.S. No.280/2 measuring 2 acres 20 guntas to his name which was certified in M.R. No.16315. Therefore, he claimed that he was the sole and absolute owner of the said property. He claimed that this transfer was well within the knowledge of the plaintiff. He claimed that his father had

¶47

5 - NC: 2025:KHC-D:7378-DB RFA No. 100459 of 2019

¶48

HC-KAR

¶49

purchased lands bearing R.S. No.187/2A, 187/3B, 187/4D, 187/5D and 189/1A and later, out of his own will and wish, transferred the said properties in the name of defendant No.1 on 16.11.2007 which was certified by revenue authorities in M.R. No.635/2007-08. He claimed that the plaintiff was aware of all these transactions and that she never objected for the same. He contended that his father died on 18.02.2008 and even before his death, all his self-acquired properties were transferred to his name and therefore, the plaintiff had no right, title or interest to question the transfer or claim that the transfer did not bind her. In addition, he claimed that at the time of marriage of the plaintiff, substantial sums of money were expended and sufficient gold ornaments were given to her.

¶50

The other defendants were placed ex parte .

¶51

Based on these contentions, the Trial Court framed

¶52

the following issues:

¶53

1. Whether plaintiff proves that, herself and defendants are the member of the joint family and the suit schedule properties are their joint family properties?

¶54

2. Whether plaintiff is entitled for relief sought for?

¶55

6 - NC: 2025:KHC-D:7378-DB RFA No. 100459 of 2019

¶56

HC-KAR

¶57

3. What Order or Decree?

¶58

The plaintiff was examined as P.W.1 and she marked Exs.P.1 to P.8. Plaintiff examined two witnesses as P.Ws.2 and 3. Defendant No.1 was examined as D.W.1 and he marked Exs.D.1 to D.3. Defendant No.1 examined a witness as D.W.2.

¶59

Based on the oral and documentary evidence, the Trial Court held that, by looking into the evidence adduced by the parties, the father of the plaintiff and defendant No.1 did not possess any ancestral properties in his hands. It held that as per Ex.D.1, the father of the plaintiff and defendants had partitioned the properties of the family and that suit items No.1 to 5 fell to the share of the father of the plaintiff and defendant No.1. Therefore, it held that the properties that fell to the share of the father did not amount to self-acquisition. Though defendant No.1 contended that his father had purchased item No.6, he was not able to establish that the father had any independent income to purchase suit item No.6. Therefore, it held that suit item No.6 was purchased from out of the income generated from suit items No.1 to 5. It also held that mere

¶60

7 - NC: 2025:KHC-D:7378-DB RFA No. 100459 of 2019

¶61

HC-KAR

¶62

mutation entry in the name of defendant No.1 did not confer any title on him. Therefore, it held that there was nothing to show that the father of the plaintiff and defendant No.1 had conferred absolute title of the suit properties in favour of defendant No.1. Therefore, it decreed the suit of the plaintiff and declared that the plaintiff is entitled to 1/5^th share in the suit schedule properties.

¶63

Being aggrieved by the aforesaid judgment and decree, the defendants are before this Court.

¶64

Learned counsel for the defendants submitted that defendants No.2 to 4 were placed ex parte and that they were not properly notified about the application filed by the plaintiff to implead them. He contends that the judgment, therefore, is passed behind the back of the defendants and hence the same is liable to be set aside and an opportunity deserves to be granted to them to contest the suit on merits. He further contends that suit item No.6 was purchased by the father of the plaintiff, defendant No.1 and therefore, it was his self-acquisition and since he had allowed the revenue entries to be changed in the name of defendant No.1, there was a clear

¶65

8 - NC: 2025:KHC-D:7378-DB RFA No. 100459 of 2019

¶66

HC-KAR

¶67

conferment of title of suit item No.6 in favour of defendant No.1. He also contends that the suit items No.1 to 5 were self-acquisition of father of defendant No.1 and therefore, transfer of those revenue entries in the name of defendant No.1 did confer absolute right, title and interest in the suit properties in favour of defendant No.1. Thus, he contends that the plaintiff, who was well aware of all these transactions in the family was estopped from contending that she was entitled to any share in the suit properties.

¶68

The learned counsel for the plaintiff, on the other hand, contended that Ex.D.1 marked by defendant No.1 himself established that suit items No.1 to 5 came into the hands of the father of the plaintiff and defendant No.1 at a partition between him and his brothers and sister on 26.06.1995. Therefore, she contends that the suit items No.1 to 5 were the properties which belonged to the family and therefore, the father of the plaintiff was not entitled to transfer the property in favour of defendant No.1. She contends that the plaintiff being a coparcener, at that point in time, was entitled to an undivided share in the suit properties. Therefore,

¶69

9 - NC: 2025:KHC-D:7378-DB RFA No. 100459 of 2019

¶70

HC-KAR

¶71

she contends that the Trial Court was right in decreeing the suit of the plaintiff and declaring that the plaintiff is entitled to 1/5^th share in suit item Nos.1 to 5. In so far as suit item No.6 is concerned, she contends that defendant No.1 failed to establish that the father of the plaintiff and defendant No.1 had any source of income other than the income generated from suit items No.1 to 5. Therefore, she contends that suit item No.6 was also impressed with the seal of the joint family and was acquired out of nucleus from the ancestral properties. Therefore, she contends that by virtue of the judgment of Hon’ble Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma & Others¹ , she is entitled to equal share in all the suit properties.

¶72

After perusing the oral and documentary evidence as well as the records of the Trial Court, the following point arise for our consideration in this appeal:

¶73

Whether the plaintiff, along with defendants, is entitled to equal share in the suit schedule properties?

¶74

1 (2020) 9 SCC 1

¶75

10 - NC: 2025:KHC-D:7378-DB RFA No. 100459 of 2019

¶76

HC-KAR

¶77

There is no dispute between the parties about their

¶78

relationship. There is also no dispute that all of them constituted a joint family and that their father was the ‘Kartha’ of the family. In support of the case of the plaintiff, she marked the revenue records of the suit properties as well as the mutation entries as Exs.P.1 to P.8. The mutation entry at Ex.P.7 shows that the name of defendant No.1 was entered in respect of land bearing R.S. No.280/2 of Belagali Village of Mudhol Taluk. Likewise, under Ex.P.8, the name of defendant No.1 was entered in the revenue records of suit items No.1 to 5. The mutation at Ex.P.7 show that this transfer was based on a mutual understanding between the father of the plaintiff and defendant No.1. It is now well settled that mere change of entries in the revenue records does not confer title but it merely recognizes the person who is liable to pay revenue to the State government. A relinquishment or transfer happens only by a document recognized in law and not otherwise. Similarly, the mutation at Ex.P.8 show that a partition was entered on 14.01.2008 in terms of which, the suit items No.1 to 5 was made over to the share of defendant No.1 and the

¶79

11 - NC: 2025:KHC-D:7378-DB RFA No. 100459 of 2019

¶80

HC-KAR

¶81

father had received some amount towards his share. When the plaintiff was also a coparcener entitled to an undivided share any arrangement between defendant No.1 and his father affecting her right, title and interest does not bind her. No doubt, P.W.1 did not establish that suit items No.1 to 5 were ancestral properties of the family. However, Ex.D.1 marked by defendant No.1 shows that suit items No.1 to 5 came to be owned and possessed by the father of the plaintiff and defendant No.1 pursuant to a partition entered by him and his brother on 26.06.1995. The defendant No.1 also did not produce any document to establish as to how his father came in possession of suit items No.1 to 5. Therefore, it can safely be held that suit items No.1 to 5 were the joint family properties in the hands of the father of the plaintiff. It appears that suit item No.6 was purchased by the father of the plaintiff and defendant No.1. Defendant No.1, who was examined as D.W.1, has stated as follows:

¶82

“£ÀªÀÄä vÀAzÉUÉ E§âgÀÄ CtÚ vÀªÀÄäA¢gÀÄ. CªÀgÀÄUÀ¼ÀÄ a£Àß¥Àà ªÀÄvÀÄÛ ºÉÆ£Àß¥Àà EªÀgÀÄ EgÀÄvÁÛgÉ. a£Àß¥Àà EªÀgÀÄ PÀqÀ¥ÀnÖ ªÀÄ£ÉvÀ£ÀPÉÌ zÀvÀÛPÀÄÌ ºÉÆÃVgÀÄvÁÛgÉ JAzÀgÉ ¸Àj. a£Àß¥Àà EªÀgÀÄ PÀqÀ¥ÀnÖ ªÀÄ£ÉvÀ£ÀPÉÌ zÀvÀÛPÀÄÌ ºÉÆÃzÀ £ÀAvÀgÀ £ÀªÀÄä vÀAzÉ ªÀÄvÀÄÛ ºÉÆ£Àß¥Àà PÀÄr EzÀÝgÀÄ JAzÀgÉ

¶83

12 - NC: 2025:KHC-D:7378-DB RFA No. 100459 of 2019

¶84

HC-KAR

¶85

¸Àj. £ÀªÀÄä vÀAzÉ ªÀÄvÀÄÛ ºÉÆ£Àß¥Àà PÀÆr EzÁÝUÀ ºÉÆ£Àß¥Àà EªÀgÀ ºÉ¸Àj£À°è ¸À.£ÀA.187 gÀ°è d«ÄÃ£ÀÄUÀ¼À£ÀÄß RjÃ¢ ªÀiÁqÀ¯ÁVzÉ JAzÀgÉ ¸Àj. £ÀªÀÄä vÀAzÉ zÁªÁ D¹Û 280/2 £ÀÄß RjÃ¢ ªÀiÁrzÁÝgÉ JAzÀgÉ ¸Àj. ¸À.£ÀA.189/1 C £ÀªÀÄUÉ £ÀªÀÄä »jAiÀÄjAzÀ §AzÀAvÀºÀ D¹Û JAzÀgÉ ¸ÀjAiÀÄ®è. ¸À.£ÀA.189 C D¹Û £ÀªÀÄä »jAiÀÄgÀ D¹Û EzÀÄÝ F D¹Û¬ÄAzÀ §AzÀ GvÀà£ÀßzÀ°è ºÉÆ£Àß¥Àà ªÀÄvÀÄÛ vÀAzÉ ¸À.£ÀA.187/2 ªÀÄvÀÄÛ 208/2 £ÀÄß RjÃ¢ ªÀiÁrzÁÝgÉ JAzÀgÉ ¸ÀjAiÀÄ®è.”

¶86

Ex.D.1 unequivocally demonstrated that suit items

¶87

No.1 to 5 was owned and possessed by the father, he having derived them at a partition between him and his brother on 26.06.1995. Except this document, there is no other document to establish that the father of the plaintiffs and defendant No.1 had purchased the suit items 1 to 5 independently. There is also no document to indicate that the father of the plaintiff and defendant No.1 had any independent income to purchase suit item No.6. Therefore, it has to be held that suit item No.6 was also purchased from out of the income generated from suit items No.1 to 5. Therefore, the Trial Court rightly held that suit items Nos.1 to 6 were available for partition and that the plaintiff being one of the coparceners was entitled to an equal share in the suit properties.

¶88