Smt. Sundarabai W/O Surappa Mane Vs Smt. Radhabai W/O Yallappa Garge

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1 - NC: 2025:KHC-D:1294-DB RFA No. 100489 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 23^RD DAY OF JANUARY, 2025 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.100489 OF 2018 (PAR/POS)

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BETWEEN:

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SMT. SUNDARABAI W/O SURAPPA MANE AGE: 65 YEARS, OCC: HOUSEHOLD WORK, R/O: HULKOPPA VILLAGE 580118, TQ: KALAGHATAGI, DIST: DHARWAD

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SMT. VIJAYALAXMI W/O SAHADEVAPPA GULANNAVAR, AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O: KAVALAGERI VILLAGE- 580006, TQ/DIST: DHARWAD

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

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SMT. GANGAPPA S/O SURAPPA MANE, AGE: 43 YEARS, OCC: AGRICULTURE , R/O: HULKOPPA VILLAGE -580118, TQ: KALAGHATAGI, DIST: DHARWAD

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JYOTIBA S/O SURAPPA MANE, AGE: 39 YEARS, OCC: AGRICULTURE, R/O: HULKOPPA VILLAGE- 580118, TQ: KALAGHATAGI, DIST: DHARWAD

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BASAVARAJ S/O SURAPPA MANE, AGE:37 YEARS, OCC:AGRICULTURE R/O: HULKOPPA VILLAGE- 580118, TQ:KALAGHATAGI, DIST:DHARWAD

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…APPELLANTS

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(BY SRI. SHRIHARSH A NEELOPANT, ADV)

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AND:

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SMT. RADHABAI W/O YALLAPPA GARGE AGE: 35 YEAJRS, OCC: HOUSEHOLD WORK, R/O: HULKOPPA VILLAGE- 580118, TQ: KALAGHATAGI, DIST: DHARWAD

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SMT. GEETA W/O MALLEHAPPA CHAVAN AGE: 33 YEARS, OCC: HOUSEHOLD WORK, R/O: TIMMAPUR VILLAGE- 581205, TQ: SHIGGAON, DIST: HAVERI

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SMT. MANJULA D/O BABU MANE AGE: 30 YEARS, OCC: HOUSEHOLD WORK, R/O: GALAGI HULKOPPA VILLAGE- 580118, TQ: KALAGHATAGI, DIST: DHARWAD

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SANJU S/O BABU MANE AGE: 28 YEARS, OCC: AGRICULTURE, R/O: GALAGI HULKOPPA VILLAGE- 580118, TQ: KALAGHATAGI, DIST: DHARWAD

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SMT. RENUKA D/O BABU MANE AGE: 26 YEARS, OCC: HOUSEHOLD WORK, R/O: GALAGI HULKOPPA VILLAGE -580118, TQ:KALAGHATAGI, DIST:DHARWAD.

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MANJUNATH S/O BABU MANE AGE: 24 YEARS, OCC: HOUSEHOLD WORK, R/O: GALAGI HULKOPPA VILLAGE -580118, TQ: KALAGHATAGI, DIST: DHARWAD.

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SMT. KASHAVVA W/O MADIWALAPPA JADHAV AGE: 42 YEARS, OCC: HOUSEHOLD WORK, R/O: GALAGI HULKOPPA VILLAGE -580118, TQ: KALAGHATAGI, DIST: DHARWAD.

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SMT. RUKMINI W/O RAMAPPA JADHAV, AGE:40 YEARS, OCC:HOUSEHOLD WORK, R/O: UPPIN BETAGERI VILLAGE -581206, TQ/DIST: DHARWAD.

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VITHAL S/O NINGAPPA MANE AGE: 39 YEARS, OCC: AGRICULTURE, R/O: GALAGI HULAKOPPA VILLAGE-581206, TQ: KALAGHATAGI, DIST: DHARWAD.

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SMT. JIJABAI W/O PRALHAD GORPADE AGE: 36 YEARS, OCC: HOUSEHOLD WORK, R/O: RAMANKOPPA VILLAGE- 580024, TQ: KUNDGOL, DIST:DHARWAD.

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SMT. LALITA D/O NINGAPPA MANE AGE:33 YEARS, OCC:HOUSEHOLD WORK, R/O: GALAGI HULKOPPA VILLAGE- 580118, TQ: KALAGHATAGI, DIST: DHARWAD.

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SMT. YALLVVA D/O NINGAPPA MANE JADHAV, AGE: 31 YEARS, OCC: HOUSEHOLD WORK, R/O: GALAGI HULKOPPA VILLAGE 580118, TQ: KALAGHATAGI, DIST: DHARWAD.

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YALLAPPA S/O NINGAPPA MANE AGE: 29 YEARS, OCC: AGRICULTURE, R/O: GALAGI HULKOPPA VILLAGE -580118, TQ: KALAGHATAGI, DIST: DHARWAD.

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RAJAPPA S/O YALLAPPA MANE AGE: 56 YEARS, OCC: AGRICULTURE, R/O: GALAGI HULKOPPA VILLAGE- 580118, TQ: KALAGHATAGI, DIST: DHARWAD.

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SURESH S/O YALLAPPA MANE SINCE DECEASED BY HIS LR’S.,

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15a. SMT. KALAVATI W/O SURESH MANE AGE: 46 YEARS, OCC: HOUSEHOLD, R/O: GALAGI -580118,

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TQ: KALAGHATAGI, DIST: DHARWAD.

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15b. SHIVAJI S/O SURESH MANE AGE: 30 YEARS, OCC: AGRICULTURE, R/O: GALAGI -580118, TQ: KALAGHATAGI, DIST: DHARWAD.

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15c. VISHNU S/O SURESH MANE AGE: 28 YEARS, OCC: AGRICULTURE, R/O: GALAGI -580118, TQ: KALAGHATAGI, DIST: DHARWAD.

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15d. SMT. KOMAL W/O ANAND KHONDE AGE: 26 YEARS, OCC: AGRICULTURE, R/O: MACHIGAD, POST: NANDGAD, TQ: KHANAPUR, DIST: BELAGAVI.

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SMT. CHANDRAVVA W/O MADIVALAPPA YADUNVAR AGE: 52 YEARS, OCC: AGRICULTURE, R/O: GALAGI HULKOPPA VILLAGE -580118, TQ: KALAGHATAGI, DIST: DHARWAD.

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…RESPONDENTS

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(BY SRI. PATIL NANDEESH HANUMANTHGOUDA, ADV FOR R1 TO R3, R5 TO R14, R15(A TO D) & R16 NOTICE TO R4 IS SERVED)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 31.10.2018 PASSED IN O.S.NO.2/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, KALAGHATAGI, PARTLY 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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CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND

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THE HON'BLE MR. JUSTICE UMESH M ADIGA

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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, challenging the judgment and preliminary decree dated 31.10.2018 passed in O.S.No.2/2018 by the learned Senior Civil Judge and JMFC, Kalaghatagi.

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For convenience, the parties are referred to, as

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per their ranking before the trial court. The appellants were the plaintiffs, and the respondents were the defendants.

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

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The plaintiffs filed the suit against the defendants seeking the relief of partition and separate possession. It is the case of the plaintiffs that the plaintiffs and the defendants are the members of the Hindu undivided joint family. One Surappa Mane was the common propositus of the plaintiffs and the defendants’ family. Surappa Mane had three sons, i.e., Rachappa Mane, Gangappa Mane and

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Yallappa Mane. The propositus Surappa Mane passed away in 1930, leaving behind his wife Subbavva, and his three sons. The sons of Surappa died in 1939, 1950 and 1984 respectively. The plaintiffs and the defendants are the nearest and only legal heirs of the deceased and they succeeded in the estate left by their ancestors. Rachappa passed away and he had no kith and kins of his own. The entire family was succeeded by Gangappa and Yallappa. Gangappa passed away leaving behind his son Surappa, who is none other than the husband of plaintiff No.1 and father of plaintiff Nos.2 to 5. Defendant Nos.1 to 13 are the grand children of the deceased Yallappa and defendant Nos.14 to 16 are the sons of Yallappa. The family of the plaintiffs and the defendants possessed both agricultural and house properties within the limits of Hulkoppa village of Kalaghatagi Taluk. There was an oral partition between the parties in the presence of the elders. Accordingly, a panch award was given effect, regarding an agricultural landed properties on 06.05.1952. The parties had acted upon the panch award and the names of the respective

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parties were entered in the revenue records. At the time of the panch award, the house properties were kept intact and partition was not effected in respect of the house properties. The house and open site properties have been continued under the common use and enjoyment of the elders of the family. Even after the demise of Gangappa and Yallappa, the said properties are standing in their names. The new VPC numbers have been given to the plaint ‘C’ schedule properties and renumbered as VPC Nos.90, 105, 106 and 1, 2, 3 and 4. The house properties are still standing in the name of the deceased Gangappa and Yallappa. The plaint ‘B’ schedule landed properties were allotted in favour of the deceased Subbavva w/o Surappa Mane and Sundarabai w/o Rajappa Mane for their maintenance, till their last breath, in a partial partition effected during 1952. The elders of the joint family appear to maintain the statusquo of the joint family and to maintain harmony among them. As of today, the plaint ‘B’ schedule properties are continued in the name of the deceased Subbavva w/o Surappa Mane and Sundarabai

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w/o Rajappa Mane. Hence, the plaint ‘B’ and ‘C’ schedule properties remain as a joint and ancestral properties of the plaintiffs and the defendants. The plaintiffs and the defendants are in joint possession and enjoyment of the plaint ‘B’ and ‘C’ schedule properties. The plaintiffs have a share in the suit schedule properties. The plaintiffs demanded for partition of the joint family properties, but the defendants refused to effect partition. Hence, a cause of action arose for the plaintiffs to file the suit for partition and separate possession. Accordingly, prays to decree the suit.

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Defendant No.14 filed a written statement and

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the other defendants have adopted the written statement filed by defendant No.14. Defendant No.14 in the written statement, disputed the boundaries given to the plaint ‘B’ and ‘C’ schedule properties, and denied the existence of a

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joint family status amongst the plaintiffs and the defendants. Defendant No.14 admitted the relationship between the parties to the suit. It is contended that, the

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suit filed by the plaintiffs is not maintainable, without seeking the relief of declaration that the registered gift deed executed by Subbavva in favour of Yallappa. It is contended that, the suit filed by the plaintiffs is barred by limitation. It is contended that, the original propositus Surappa died in 1930, leaving behind his wife and three sons. The three sons are no more. The first son of the original propositus, i.e., Rachappa Mane, is also no more. It is contended that, Sundarabai and Subbavva have voluntarily relinquished their ownership over suit ‘B’ schedule item Nos.1 to 6 in favour of the deceased Yallappa. These facts are well within the knowledge of the plaintiffs and till today, they have not raised any objections to the same. After the death of Yallappa, his legal heirs, i.e., defendant Nos.1 to 16 have got joint rights over the plaint ‘B’ schedule properties. The plaint ‘C’ schedule item Nos.2 to 7 properties are the self-acquired properties of the deceased Yallappa. Plaint ‘C’ schedule, item Nos.2 and 3 properties are adjacent to each other and they are standing in the name of the deceased

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Yallappa. Subbavva and Gangavva gifted the said properties in favour of Yallappa under a registered gift deed dated 26.10.1959. The parties have acted upon the registered gift deed executed by Subbavva and Gangavva on 26.10.1959 and Yellappa became the absolute owner, based on the registered gift deed executed by Subbavva and Gangavva. Plaint ‘C’ schedule item Nos.4 to 7 are the self-acquired properties of Yallappa, i.e., item Nos.4 and 5 properties are purchased by him under a registered sale deed dated 09.06.1954. Item Nos.6 and 7 properties are purchased by Yallappa under a registered sale deed dated 29.05.1967. It is contended that, the partition took place among the family members of the plaintiffs and the defendants during the year 1952 and they are cultivating the lands of their respective shares. Hence, prays to dismiss the suit.

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

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1) Whether plaintiffs proves that themselves and defendants Hindu Undivided joint family members and suit schedule properties are their ancestral and joint family properties?

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2) Whether the defendants prove that Sundarabai w/o Rajappa Mane and Subbavva w/o Surappa Mane have relinquished their right over plaint ‘B’ schedule item No.1(i) to (vi) properties in favour of deceased Yallappa s/o Surappa Mane?

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3) Whether the defendants prove that suit ‘C’ schedule item No.2(ii) to (iii) properties are the self-acquired properties of deceased Yallappa, by virtue of the registered gift deed dated 26.10.1959 executed by Subbavva w/o Surappa Mane and Gangavva w/o Kadam?

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4) Whether the defendants prove that suit ‘C’ schedule item Nos.II, item No.IV to VII properties are the self-acquired properties of deceased Yallappa s/o Surappa Mane, who had

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purchased the same under a two separate registered sale deeds dated 09.06.1954 and 29.05.1967 for valuable consideration from its lawful vendors?

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5) Whether the plaintiffs are entitled for mesne profit?

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6) Whether the plaintiffs are entitled for the relief as sought for?

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7) What order or decree?

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The plaintiffs, to prove their case, plaintiff No.3

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was examined as P.W.1 and marked 53 documents as Exs.P1 to P53. In rebuttal, defendant No.14 was examined as D.W.1, one witness was examined as D.W.2 and marked 12 documents as Exs.D1 to D12. The trial court, after recording the evidence, hearing on both sides, and

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on assessment of oral and documentary evidence, answered issue Nos.1 and 6 partly in the affirmative, issue Nos.2 and 5 in the negative, issue Nos.3 and 4 in the

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affirmative and issue No.7 as per the final order. The suit of the plaintiffs was partly decreed. It is declared that the plaintiffs are entitled to ½ share in the plaint ‘B’ schedule and plaint ‘C’ schedule item No.1 property. The suit of the plaintiffs in respect of plaint ‘C’ schedule item Nos.2 to 7 was dismissed. The plaintiffs, aggrieved by the dismissal of the suit, in respect of plaint ‘C’ schedule item Nos.2 to 7, filed this Regular First Appeal.

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Heard the learned counsel for the plaintiffs and

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the learned counsel for the defendants.

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The learned counsel for the plaintiffs submits that, the trial court committed an error in dismissing the suit of the plaintiffs, with respect to plaint ‘C’ schedule item Nos.2 to 7 properties. He submits that, plaint ‘C’ schedule item Nos.2 to 7 properties are the ancestral and joint family properties of the plaintiffs and the defendants. He submits that, there was a panch award in 1952, regarding the agricultural landed properties and there was no partition regarding the house properties and the open

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site. The house and open site properties are the joint family properties and have been continued under the common use and enjoyment of the elders of the family. He submits that, there is no partition in respect of plaint ‘C’ schedule item Nos.2 to 7 properties. He submits that, Subbavva and Sundrabai have limited rights over the suit schedule properties, as the properties were given to them for their enjoyment, during their lifetime, and after the death of Subbavva and Sundarabai, the said properties have to be divided amongst the legal heirs. He submits that Subbavva and Gangavva had no absolute right over the said properties, to execute the gift deed, in favour of Yallappa. He submits that, Yallappa had not acquired any title, because of a registered gift deed executed by Subbavva and Gangavva. He also submits that, the gift deed executed by Subbavva and Gangavva in favour of Yallappa is void and hence, there is no need to challenge the gift deed. He also submits that, the plaintiffs filed an application to amend the plaint, but the trial court has disposed of the said application on the ground that, the

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matter was posted for judgment. He submits that, the trial court has committed an error in rejecting the application filed by the plaintiffs. Hence, on these grounds, he prays to allow the appeal.

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Per contra, learned counsel for the defendants submits that, though Subbavva and Gangavva executed a registered gift deed in favour of Yallappa, the plaintiffs have not challenged the registered gift deed executed by Subbavva and Gangavva. Hence, he submits that the suit filed by the plaintiffs for the relief of partition and separate possession, without seeking the relief of declaration regarding the registered gift deed executed by Subbavva and Gangavva in favour of Yallappa, is not maintainable. He submits that, Yallappa had purchased some of the suit schedule properties items, under the registered sale deeds dated 09.06.1954 and 29.05.1967. The properties purchased under the aforesaid sale deeds are the selfacquired properties of Yallappa and the plaintiffs have no right to claim share in the properties purchased by

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Yallappa. He also submits that, Yallappa is in possession of the properties, i.e., property Nos.105 and 106 under the registered gift deed dated 26.10.1959 and after the demise of Yallappa, the defendants are in possession of the said properties. He submits that, the plaintiffs do not possess the plaint ‘C’ schedule properties. He submits that though a suggestion was put to P.W.1 regarding the panch award passed under Ex.P48, the said suggestion was denied by P.W.1. Hence, he submits that, the trial court considering the entire oral and documentary evidence on record, has rightly passed the impugned judgment and decree. The judgment and decree passed by the trial court is just and proper, and do not call for any interference. Hence, he prays to dismiss the appeal.

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Heard, perused the records and considered the submissions of the learned counsel for the parties. The points that would arise for our consideration are;

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1. Whether the plaintiffs prove that the plaintiffs and the defendants are the members of a

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Hindu undivided joint family and that the suit schedule properties are their ancestral and joint family properties?

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1. Whether the defendants prove that, Sundarabai w/o Rachappa Mane and Subbavva w/o Surappa Mane have relinquished their right over plaint ‘B’ schedule item No.1(i) to (vi) properties in favour of deceased Yallappa s/o Surappa Mane?

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Whether the defendants prove that, the plaint ‘C’ schedule item No.2(ii) to (iii) properties are the self-acquired properties of the deceased Yallappa, by virtue of the registered gift deed dated 26.10.1959 executed by Subbavva and Gangavva?

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Whether the defendants prove that plaint ‘C’ schedule item Nos.II, item No.IV to VII properties are the self-acquired properties of the deceased Yallappa, who had purchased the

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same under a two separate registered sale

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deeds dated 09.06.1954 and 29.05.1967?

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1. Whether the plaintiffs prove that, the trial court has committed an error, in dismissing the suit with respect to plaint ‘C’ schedule item Nos.II and IV to VII properties?

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What order or decree?

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Point No.1.

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It is the case of the plaintiffs that, the plaintiffs and the defendants are the members of the Hindu undivided joint family and the suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants. There is no partition between the plaintiffs and the defendants. The plaintiffs to substantiate their case, plaintiff No.3 was examined as P.W.1. He has reiterated the plaint averments in his examination-in-chief, to prove that, the plaintiffs and the defendants are the members of a Hindu undivided, joint family and the suit

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schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants. There is no dispute regarding the relationship between the parties to the suit. The plaintiffs have produced following documents, Exs.P1 to P4 are the RTC extracts bearing Sy.Nos.92, 93, 47 standing in the name of Sundarabai. Exs.P5 and 6 are

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the RTC extracts bearing Sy.Nos.94 and 95, standing in the name of Subbavva. Ex.P7 is the tax receipt of the property bearing No.207, standing in the name of Gangappa. Ex.P8 is the property tax receipt of the property bearing No.219, standing in the name of Yallappa. Ex.P9 is the tax receipt of the property bearing No.219/A, standing in the name of Yallappa. Exs.P10 and P11 are the tax receipts of the properties bearing Nos.439 and 442, standing in the name of Gangappa. Ex.P12 is the tax receipt of the property bearing No.443, standing in the name of Subbavva. Ex.P13 is the genealogy. Ex.P14 is the death certificate of Surappa, who died on 26.01.2013. Ex.P15 is the Jivant Sadassar Patra (survivor certificate). Ex.P16 is the Uttar Jivita Patra. Ex.P17 is the death

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certificate of Subbavva, who died on 06.09.1971. Ex.P18 is the death certificate of Yallappa, who died on 12.11.1984. Ex.P19 is the death certificate of Sundarabai, who died on 30.06.1998. Ex.P20 is the endorsement dated 21.12.2017 issued by the Gram Panchayat, rejecting the application submitted by Yallappa for the construction of a building. Ex.P21 is the endorsement dated 15.12.2017 issued by the Gram Panchayat, which discloses that VPC Nos.501, 503, 374, 375, 221, 221/A, 222 and 222/A, which are standing in the name of Gangappa, Subbavva and Yallappa. Ex.P22 is the endorsement dated 15.12.2017 issued by the Gram Panchayat, wherein the name of Yallappa was not found in the panchayat records. Ex.P23 is the endorsement dated 26.12.2017 issued by the Gram Panchayat. Exs.P24 to 30 are the Khata extracts. Exs.P31 to 46 are the Panchayat extracts and Exs.P47 to 53 are the photos, CD, and photo receipts.

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During the course of cross-examination of P.W.1, it was suggested to P.W.1 that, Subbavva and

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Gangavva have executed the gift deed in favour of Yallappa, but the said suggestion was denied by P.W.1. It was suggested to P.W.1 that, as per Ex.P48-panch award, there was a settlement between the parties and VPC Nos. 105 and 106 were given to Subbavva and Sundarabai for their maintenance, the said suggestion was denied by P.W.1. It is elicited that, joint family properties were partitioned between Ningappa, his two brothers, and his mother, and the panch award was passed. As per the panch award, plaint ‘C’ schedule, item Nos.2 and 3 properties were allotted to Subbavva and Gangavva and the names of Subbavva and Gangavva were entered in the revenue records. The plaintiffs and the defendants have not disputed the panch award. From the perusal of Ex.P48, it discloses that the suit schedule properties were the ancestral and joint family properties, except plaint ‘C’ schedule item Nos.2 to 7 properties. The plaintiffs and the defendants are the members of a Hindu undivided joint family and there is no partition took place between the plaintiffs and the defendants. Thus, the plaintiffs have

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proved that the plaintiffs and the defendants are the members of a Hindu undivided joint family and plaint ‘B’ schedule properties and plaint ‘C’ schedule item No.1 property are the joint family properties of the plaintiffs and the defendants. Because of the above discussion, we answer point No.1 partly in the affirmative, holding that plaint ‘B’ schedule properties and plaint ‘C’ schedule item No.1 are the ancestral and joint family properties of the plaintiffs and the defendants.

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Point No.2.

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In the case of the defendants that Subbavva and Sundarabai have relinquished their rights over the plaint ‘B’ schedule properties in favour of Yallappa. To substantiate their defence, defendant No.14 was examined as D.W.1. He reiterated the written statement averments in his examination-in-chief. He has produced a certified copy of the registered gift deed, marked as Ex.D1, which discloses that, two house properties situated at Arayara Oni were gifted in favour of the deceased Yallappa. Exs.D2

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and D3 are the registered sale deeds about plaint ‘C’ schedule, item Nos.4 to 7 properties. Ex.D4 is the panchayat extract pertaining to plaint ‘C’ schedule properties, wherein the khata of plaint ‘C’ schedule item No.1 stand in the joint name of Gangappa and Yallappa. Exs.D5 to D9 are the RTC extracts (Exs.P1 to P6). Ex.D10 is the registered sale deed produced by the defendants to substantiate that his vendor Chandravva is the absolute owner of the property alienated in favour of Yallappa. Ex.D11 is the panchayat extract. Ex.D12 is the application submitted by Yallappa to Galagi Gram Panchayat for a change of khata of the property purchased from Gangavva.

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The defendants have not produced any records to establish that Subbavva and Sundarabai have relinquished their rights, in respect of plaint ‘B’ schedule item No.1(i) to (vi) properties in favour of the deceased Yallappa. As per Section 17 of the Registration Act, 1908, any release of rights, in respect of an immovable property

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worth more than Rs.100/- must be made through a registered instrument only. In the absence of a registered instrument, the defence of the defendants cannot be accepted that Subbavva and Sundarabai have orally relinquished their rights in favour of Yallappa. Further, no records have been produced by the defendants to establish that, based on the relinquishment deed, the properties were transferred in the name of Yallappa. Further, the defendants have not examined any witnesses to establish that, Subbavva and Sundarabai have orally relinquished their rights concerning plaint ‘B’ schedule properties. The defendants have failed to establish that, Subbavva and Sundarabai have orally relinquished their rights in respect of plaint ‘B’ schedule properties. The theory of relinquishment by Subbavva and Sundarabai over plaint ‘B’ schedule item No.1(i) to (vi) properties does not hold water. Because of the above discussion, we answer point No.2 in the negative.

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Point No.3.

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It is the case of the defendants that plaint ‘C’

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schedule item No.2(ii) to (iii) properties are the selfacquired properties of Yallappa under the registered gift deed dated 26.10.1959 executed by Subbavva and Gangavva, wherein item No.2(ii) to (iii) were allotted to the share of Subbavva and Gangavva, and their names were appearing in the revenue records. Further, P.W.1 has clearly admitted in the course of his cross-examination that, plaint ‘C’ schedule item No.2(ii) to (iii) i.e., VPC Nos.104, 105 and 106 were allotted to the share of Subbavva and Gangavva. In the case of the plaintiffs that, the said properties were granted in favour of Subbavva and Gangavva, for their maintenance and they should enjoy as a life interest and thereafter would devolve upon the lines of succession. To consider the case on hand, it is necessary to examine, Section 14 of the Hindu Succession Act, 1956, which reads as under;

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14. Property of a female Hindu to be her absolute

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property.— (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

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Explanation.—In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

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(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

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Section 14(1) of the Hindu Succession Act, states that, any property owned by a female Hindu is her absolute property, including the property acquired before or after the commencement of this Act, and the properties acquired through inheritance, partition and gift etc. The Hon’ble Apex Court in the case of Kallakuri Pattabhiramaswamy (dead) Through Lrs vs Kallakuri Kamaraju and others in Civil Appeal No.5389/2012 disposed of on 21.12.2024, held as under;

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“Property given in lieu of maintenance would solidify into absolute ownership by action of Section 14(1) of HAS, 1956. In other words, the right of maintenance on its own is apposite for such property to transfer into her sole, unquestionable, and absolute right. The partition deed of 1933, it has been held; is clear that 3.55 Cents of land would be enjoyed by Smt.Veerabhadramma as a life interest and thereafter would devolve upon the two lines of succession, i.e, the sons of late Kallakuri Swami through his first wife and also his second wife.”

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In the instant case, by virtue of Ex.P48, Subbavva and Gangavva came in possession of the suit

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schedule properties and became the absolute owners of the suit schedule properties by virtue of Section 14(1) of the Hindu Succession Act. Thus, Subbavva and Gangavva have acquired the properties as full owners and not as a limited owner. Subbavva and Gangavva gifted the plaint ‘C’ schedule item No.2(ii) to (iii) properties in favour of Yallappa. The defendants have produced the registered gift deed executed by Subbavva and Gangavva on 26.10.1959, marked as Ex.D1. The said document is 30 years old and has a presumptive and evidentiary value as per Section 90 of the Indian Evidence Act, 1872, unless the contrary is proved. In the instant case, plaintiffs have not rebutted the presumption. Thus, considering Ex.D1, the defendants have proved that the plaint ‘C’ schedule item No.2(ii) to (iii) are the self-acquired properties of the deceased Yallappa, by the registered gift deed dated 26.10.1959 executed by Subbavva and Gangavva in favour of Yallappa. The plaintiffs did not challenge the registered gift deed executed by Subbavva and Gangavva in favour of Yallappa. Though the plaintiffs were minors, as

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on the date of execution of the gift deed by Subbavva and Gangavva, the plaintiffs did not challenge the gift deed within three years, as per Article 60 of the Limitation Act. Article 60 of the Limitation Act, reads as under;

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60. To set aside a transfer of property made by the guardian of a ward— (a) by the ward who has Three years When the ward attained majority; attains majority (b)by the ward’s legal representative— (i) when the ward dies within Three years When the ward three years from the date of attains majority attaining majority (ii) when the ward dies before Three years When the ward attaining majority dies

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Article 60 states that a minor must file a suit

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within three years of attaining the majority, to set aside a sale or transfer of the property by the guardian. It only provides a time limit for filing the suit, and it does not create any right or obligation to file the suit. As observed, the plaintiffs have not challenged the registered gift deed, even in this suit. Because of the above discussion, we answer point No.3 in the affirmative.

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Point No.4.

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It is the case of the plaintiffs that, plaint ‘C’ schedule item Nos.II, IV to VII properties are the joint family properties of the plaintiffs and the defendants and the said properties were purchased by Yallappa from the joint family funds. Hence, the said properties are the joint family properties of the plaintiffs and the defendants, and the plaintiffs are entitled for partition in the said properties. Admittedly, there was a partition between the family members of the plaintiffs and the defendants in 1952 and the panch award was passed. Yallappa had purchased plaint ‘C’ schedule item Nos.II, IV to VII properties on 09.06.1954 and 29.05.1967, i.e., after the severance of the joint family status amongst the plaintiffs and the defendants’ family. As of the purchase date of the aforesaid properties, the plaintiffs and the defendants were not the members of a Hindu undivided, joint family. Further, the plaintiffs have not produced any records to establish that the family possessed sufficient sources of income to purchase the aforesaid properties.

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It is the settled law that, in a suit for partition

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and separate possession, the initial burden is on the party who alleges that the suit schedule properties are the joint family properties, and once if the said burden is discharged, the burden shifts to the party alleging selfacquisition to establish affirmatively that, the property was acquired without the aid of the joint family property by cogent and necessary evidence. Admittedly, the plaintiffs have failed to prove that the joint family had a nucleus to make the impugned acquisition. Further, it is not the case of the plaintiffs that, the defendants managed the family properties and acquired the said properties. From the perusal of the recitals of the sale deeds dated 09.06.1954 and 29.05.1967, it is disclosed that Yallappa had paid the consideration amount. Hence, the said properties are the self-acquired properties of Yallappa. The defendants have proved that, the aforesaid properties are the self-acquired properties of Yallappa, who had purchased the said properties under two sale deeds, as per Exs.D2 and D3. Thus, the plaintiffs have failed to establish that, the said

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properties were acquired from the joint family funds. Because of the above discussion, we answer point No.4 in the affirmative.

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Point No.5.

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The trial court, considering Exs.D2 and D3, i.e., the registered sale deeds discloses that, Yallappa had purchased item Nos.II and IV to VII of plaint ‘C’ schedule properties, has rightly held that the said properties are the self-acquired properties of the deceased Yallappa and the plaintiffs are not entitled to get a share in the said properties, and rightly dismissed the suit in respect of plaint ‘C’ schedule item Nos.II and IV to VII properties. We do not find any error in the impugned judgment. We decline to interfere with the impugned judgment and preliminary decree passed by the trial court. Because of the above discussion, we answer point No.5 in the negative.

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Point No.6.

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In view of answering point Nos.1 to 5, we proceed to pass the following;

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ORDER

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The Regular First Appeal is dismissed.

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The judgment and preliminary decree dated 31.10.2018 passed in O.S.No.2/2018 by the learned Senior Civil Judge and JMFC, Kalaghatagi, is hereby confirmed.

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No order as to the cost.

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In view of the dismissal of the appeal, I.A.No.1/2021 does not survive for consideration and

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is accordingly disposed of.

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Sd/-

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(ASHOK S. KINAGI) JUDGE

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Sd/(UMESH M ADIGA) JUDGE