Smt.Mahadevi W/O. Gangappa Pattanshetti Vs Smt.Gangawwa W/O. Basappa Patil

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NC: 2025:KHC-D:1098-DB RFA No. 100534 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21^ST DAY OF JANUARY, 2025 PRESENT

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND

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THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100534 OF 2018 (PAR/POS)

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BETWEEN:

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SMT. MAHADEVI W/O. GANGAPPA PATTANSHETTI AGE: 61 YEARS, OCC: HOUSEHOLD & AGRICULTURE, R/O. HANDIGUND, TAL: RAIBAG, DIST: BELAGAVI-590001.

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…APPELLANT

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(BY SMT. PALLAVI S PACHHAPURE, ADV)

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AND:

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SMT. GANGAWWA W/O. BASAPPA PATIL AGE: 63 YEARS, OCC: HOUSEHOLD WORK, R/O. BANAHATTI, TAL: JAMAKHANDI, DIST: BAGALKOT-587101.

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

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SRI BASAPPA S/O. PARAPPA BHADRASHETTI AGE: 58 YEARS, OCC: AGRICULTURE, R/O. HANDIGUND, TAL: RAIBAG, DIST: BELAGAVI-590001.

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SMT. MAHANAND W/O. MAHADEV PATTANSHETTI AGE: 58 YEARS, OCC: HOUSEHOLD WORK, R/O. MARAPUR, TAL: MUDHOL, DIST: BAGALKOT-587101.

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SRI. MAHADEV S/O. PARAPPA BHADRASHETTI AGE: 58 YEARS, OCC: AGRICULTURE, R/O. SASALATTI, TQ: JAMKHANDI, DIST:BAGALKOT-587101.

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SRI. IRAPPA S/O. PARAPPA BHADRASHETTI SINCE DECEASED BY HIS LRS.

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SMT. BHARATI W/O. IRAPPA BHADRASHETTI, AGE: 38 YEARS, OCC: HOUSEHOLD WORK, R/O. SASALATTI, TQ: JAMAKHANDI, DIST:BAGALKOT-587101.

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KUMARI VIJAKKA D/O. IRAPPA BHADRASHETTI AGE: 17 YEARS, OCC: STUDENT, R/O. SASALATTI, TQ: JAMAKHANDI, DIST: BAGALKOT-587101.

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KUMARI KIRTI D/O. IRAPPA BHADRASHETTI AGE: 15 YEARS, OCC: STUDENT, R/O. SASALATTI, TQ: JAMAKHANDI, DIST: BAGALKOT-587101.

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KUMAR SANTOSH S/O. IRAPPA BHADRASHETTY AGE: 12 YEARS, OCC: STUDENT, R/O. SASALATTI, TQ: JAMAKHANDI, DIST: BAGALKOT-587101.

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RESPONDENTS NO.6 TO 8 ARE MINORS REPRESENTED BY THEIR NATURAL MOTHER MINOR GUARDIAN RESPONDENT NO.5.

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SMT. SUMITRA W/O. NANDAKUMAR DODWAD AGE: 51 YEARS, OCC: HOUSEHOLD WORK, R/O. VAKKUD, TAL: BAILHONGAL, DIST: BELAGAVI-590001.

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SMT. RAMAWWA W/O PARAPPA BHADRASHETTI AGE: 78 YEARS, OCC: HOUSEHOLD WORK, R/O. HANDIGUND, TAL: RAIBAG, DIST: BELAGAVI-590001.

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…RESPONDENTS

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(BY SRI. SANGAMESH S. GULAPPANAVAR, ADV FOR R1 TO R10 R6 TO R8 ARE MINORS, REP BY R5)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.11.2018 PASSED IN O.S.NO.77/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, RAIBAG, DISMISSING 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 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 plaintiff/appellant, challenging the judgment and preliminary decree dated 14.11.2018 passed in O.S.No.77/2015 by the learned Senior Civil Judge and JMFC, Raibag.

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For convenience, the parties are referred to, as per their ranking before the trial court. The appellant was the plaintiff and the respondents were the defendants.

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

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The plaintiff filed the suit against the defendants for the relief of partition and separate possession. It is the case of the plaintiff that, Parappa Dundappa Bhadrashetti had two wives, i.e., Paravva was the first wife and Ratnavva was the second wife. Paravva is defendant No.8

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and Ratnavva is defendant No.9. It is contended that, plaintiff and defendant Nos.1 and 2 are the daughter and sons of defendant No.8 and defendant Nos.3 to 7 are the children of defendant No.9. It is contended that, the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendant Nos.1 to 9. There is no partition effected between the plaintiff and defendant Nos.1, 2 and 8. The plaintiff is entitled to a share in the suit schedule properties. The plaintiff requested the defendants to effect partition, but the defendants refused to effect the partition. Hence, a cause of action arose for the plaintiff to file the suit for partition and separate possession. Accordingly, prays to decree the suit.

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Defendant Nos.2 to 4 filed a written statement. Defendant Nos.5(a) to (d) adopted the written statement filed by defendant Nos.2 to 4. During the pendency of the suit, defendant Nos.7 and 8 died. No legal representatives

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are left by defendant No.7. The plaintiff and defendant Nos.1 and 2 are the legal representatives of the deceased

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defendant No.8. Defendant Nos.2 to 4 and the legal representatives of defendant No.5 have denied the averments made in the plaint. They have disputed the description of the suit properties and they have also denied the contents of the genealogy tree. It is contended that, the suit schedule properties are not the joint family properties of the plaintiff and the defendants. Parappa Dundappa Bhadrashetti died on 07.05.1993. The plaintiff is not entitled to any share, in view of Section 6 of the Hindu Succession Act, 1956 (Amended Act, 2005). It is contended that, defendant Nos.8, 9 and daughter of Parappa have relinquished their right and interest over the suit land. Accordingly, the mutation was effected in the name of defendant Nos.2, 4, and 5, and they are in possession and enjoyment of the suit schedule properties as absolute owners. Hence, prays to dismiss the suit.

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The trial court based on the pleadings of the

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parties, framed the following issues:

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1) Whether the plaintiffs prove that, the suit schedule properties are the ancestral joint family properties of plaintiff and defendants and there was no partition between them as on the date of suit?

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2) Whether the defendant No.2, 4, 5 prove that, the plaintiffs and the rest of the defendants No.1, 3, 6 to 9 were relinquish their rights in favour of the defendant No.2, 4 and 5?

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3) Whether the plaintiffs are entitled for partition and separate possession by metes and bounds, if so, what is their share?

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4) What judgment or decree?

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The plaintiff, to substantiate her case,

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examined herself as P.W.1, examined three witnesses as P.Ws.2 to 4 and marked 8 documents as Exs.P1 to P8. In rebuttal, defendant No.2 was examined as D.W.1, examined two witnesses as D.Ws.2 and 3, and marked 10 documents as Exs.D1 to D8. The trial court, after recording the evidence, hearing on both sides and on assessment of oral and documentary evidence, answered issue Nos.1 to 3 in the negative and issue No.4, as per the final order. The suit of the plaintiff was dismissed vide

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NC: 2025:KHC-D:1098-DB RFA No. 100534 of 2018

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judgment dated 14.11.2018. The plaintiff, aggrieved by

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the judgment and decree passed in O.S.No.77/2015, filed this regular first appeal.

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Heard the learned counsel for the plaintiff and the learned counsel for the defendants.

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The learned counsel for the plaintiff submits that, admittedly, the plaintiff is the daughter of Parappa Dundappa Bhadrashetti and she is the coparcener, as per Section 6 of the Hindu Succession Act, 1956. She submits that, the plaintiff never relinquished her right in favour of defendant Nos.2, 4, and 5. She submits that, if an immovable property worth more than Rs.100/is transferred, it is to be transferred by way of a registered instrument, as per Section 17 of the Registration Act. She submits that, the trial court merely placing reliance on a mutation order, has recorded a finding that, the plaintiff and the other defendants have relinquished their rights in favour of defendant Nos.2, 4 and 5. She submits that, the mere a varadi cannot be considered as a document

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evidencing relinquishment or release of right, title or interest by one person in favour of another person. She submits that the trial court has committed an error in dismissing the suit of the plaintiff. Hence, on these grounds, she prays to allow the appeal.

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In support of her submission, she placed reliance on the judgment rendered by the Division Bench of this court in RFA No.100029/2015 connected with RFA No.100028/2015 disposed of on 12.11.2024. She also placed reliance, on the judgment rendered by the Coordinate Bench of this court, in RFA No.100332/2017 disposed of on 03.01.2024.

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Per contra, the learned counsel for the defendants submit that, the plaintiff and the other defendants have relinquished their right, title and interest in favour of defendant Nos.2, 4, and 5 and they have submitted a varadi to the revenue authorities. The revenue authorities, based on the varadi submitted by the plaintiff and the other defendants have effected the

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mutation in the name of defendant Nos.2, 4 and 5. Defendant Nos.2, 4, and 5 became the absolute owners by virtue of the mutation order passed by the revenue authorities. He submits that, the plaintiff having relinquished her right, she is estopped from claiming a share in the suit schedule properties. He submits that, the suit of the plaintiff is not maintainable for non-joinder of all the properties. He submits that, the plaintiff in the course of her cross-examination, has admitted that the plaintiff has not included the other joint family properties. He submits that, the trial court was justified in dismissing the suit of the plaintiff. Hence, on these grounds, he prays to dismiss the appeal.

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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 plaintiff proves that the suit schedule properties are the ancestral and joint family properties of the plaintiff and the

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defendants, and there is no partition effected between them?

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2) Whether defendant Nos.2, 4 and 5 prove that plaintiff and defendant Nos.1, 3 and 6 to 9 have relinquished their rights in favour of defendant Nos.2, 4 and 5 and they became the absolute owners by virtue of a mutation order?

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3) Whether the plaintiff proves that the judgment and preliminary decree passed by the trial court is perverse and arbitrary?

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4) What order or decree?

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Point Nos.1 and 2 : These points are interlinked with each other and they are taken together for discussion, to avoid repetition of facts.

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The plaintiff to substantiate her case, the plaintiff examined herself as PW.1. She reiterated the plaint averments in the examination-in-chief. To prove that the suit schedule properties are the ancestral

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properties of the plaintiffs and the defendants produced the documents, Ex.P-1 is the RTC extract of land bearing Sy.No.286/10a/1 standing in the name of Parappa i.e. the father of the plaintiff; Ex.P-2 is the RTC extract of land bearing Sy.No.286/4 standing the name of Parappa; Ex.P3 is the RTC extract of land bearing Sy.No.286/5 standing the name of Parappa; Ex.P-4 is the RTC extract of land bearing Sy.No.286/8 standing the name of Parapa; Ex.P-5 is the RTC extract of land bearing Sy.No.5/1/P1 standing the name of Parappa, Ex.P-6 is the RTC extract of land bearing Sy.No.5 standing the name of Parappa; Ex.P-7 is the RTC extract of land bearing Sy.No.7/2 standing the name of Parappa; Ex.P-8 is the death certificate of Parappa, who died on 07.05.1993 at Hungund. During the course of cross-examination, it was suggested to PW.1 that, the plaintiff and the other defendants have relinquished their right, title and interest in favour of defendant Nos.2, 4, and 5. The said suggestion was denied by PW.1. The defendants have not denied that, the suit schedule properties are not the ancestral properties of

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the plaintiff and the defendants in the course of crossexamination. Further, the plaintiff also examined 3 witnesses as PWs.2 to 4. PW.2 has deposed that the suit schedule properties are the ancestral properties of the plaintiff and defendant Nos.1 and 2, and the plaintiff and defendant Nos.1 and 2 are the members of the Hindu undivided family and there is no partition effected between the plaintiff, and defendant Nos.1 and 2. It is contended that Parappa had two wives namely, Paravva i.e. defendant No.8, who is the first wife and Smt. Ratnavva, defendant No.9, who is the second wife. Plaintiff and defendant Nos.1 and 2 are born to Paravva, and defendant Nos.3 to 7 are born to defendant No.9 and no partition is effected between the family members. PWs.3 and 4 have deposed in the same terms of PW.2. PWs.3 and 4 have supported the case of the plaintiff, stating that no partition is effected between the plaintiff and the defendants, and the suit schedule properties are the ancestral properties of the plaintiffs and the defendants. Though it was suggested to PWs.2 to 4 that the plaintiffs and the other

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defendants have relinquished their rights, the said suggestion was denied by PWs.2 to 4.

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In rebuttal, defendant No.2 was examined as DW.1. He has denied the contents of genealogy shown by the plaintiff in para 2 of the plaint and it is contended that defendant No.8 is the first wife and defendant No.9 is the second wife of deceased Parappa Dundappa Bhadrashetti. He has deposed that the suit schedule properties are the properties of deceased Parappa, who died on 09.07.1993. He has deposed that the plaintiff is not a coparcener, as she has relinquished her right in favour defendant Nos.1, 2, 4, and 5 and the plaintiff is not entitled to a share in the suit schedule properties. The defendants to prove their defence, have produced ME extracts marked as Exs.D-1 to D-3 which discloses that the plaintiff and other defendants have relinquished their right, title and interest over the suit schedule properties and based on the said wardi, names of defendant Nos.2, 4 and 5 were mutated in the Revenue Records. Exs.D-4 to

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D-10 are the Record of Rights. Based on Exs.D-1 to D-3 names of defendant Nos.2, 4 and 5 appear in the revenue records. Though, from the perusal of the defence of the defendants that the plaintiff and others have relinquished their rights, to prove that the plaintiff had relinquished her right, the defendants except producing mutation extracts, have not produced any other records. Though, it is the case of the defendants that, they submitted a wardi to transfer the properties in the names of defendant Nos.2, 4 and 5, merely based on the wardi, rights cannot be transferred. Defendant Nos.2, 4 and 5 have not acquired any right by virtue of the alleged relinquishment by the plaintiff and other defendants. To transfer the right in respect of an immoveable property, it has to be transferred by way of registered instrument as per Section 17 of the Registration Act which reads as under:

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“17. Documents of which registration is compulsory.—(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have

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been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:— (a) instruments of gift of immovable property; (b) other nontestamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; 1 [(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred

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rupees and upwards, to or in immovable property:] Provided that the 2 [State Government] may, by order published in the 3 [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees. 4 [(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 (48 of 2001) and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.] (2) Nothing in clauses (b) and (c) of sub-section (1) applies to— (i) any composition deed; or (ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or (iii) any debenture issued by any such Company and not creating, declaring,

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assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or 1. Ins. by Act 21 of 1929, s. 10. 2. Subs. by the A.O. 1950, for “Provincial Government”. 3. Subs. by the A.O. 1937, for “Local Official Gazette”. 4. Ins. by Act 48 of 2001, s. 3 (w.e.f. 24-9-2001). 8 (iv) any endorsement upon or transfer of any debenture issued by any such Company; or (v) 1 [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or (vi) any decree or order of a Court 2 [except a decree or order expressed to be made on a compromise and comprising immovable property other than

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that which is the subject-matter of the suit or proceeding]; or (vii) any grant of immovable property by 3 [Government]; or (viii) any instrument of partition made by a RevenueOfficer; or (ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or (x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or 4 [(xa) any order made under the Charitable Endowments Act, 1890 (6 of 1890), vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or] (xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or (xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or RevenueOfficer. 5 [Explanation.—A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to

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require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered.”

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As per Section 17 of the Registration Act, if a property to which a document is executed, it requires compulsory registration. Admittedly, in the instant case, the defendants have not produced any records to demonstrate that the plaintiff and the other defendants have relinquished their right by executing a registered relinquishment/release deed. As observed above, merely based on the wardi, defendant Nos.2, 4, and 5 have not acquired any right over the suit schedule properties. Admittedly, the suit schedule properties are the properties acquired by Parapppa in a partition effected between him and his siblings. The suit schedule properties are the ancestral joint family properties of the plaintiff and defendants. The plaintiff and the defendant Nos.1, 2, and

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8 are the members of the Hindu joint family and admittedly no partition is effected between the plaintiff and defendant Nos.1, 2, and 8. It is not the case of the defendant that, there was a partition effected between the he parties to the suit. The only defence of the defendants is that the plaintiff and defendant Nos.1, 3, 6 to 9 have relinquished their right in favour of defendant Nos.2, 4, and 5 and they became absolute owners by virtue of the Mutation order. The said Mutation Order is not supported by any piece of evidence. If a mutation entry is not supported by any piece of evidence, the order of the Revenue Officer in mutation proceedings based on untrue piece of evidence has no evidentiary value in a civil suit. The said view is supported by the judgment of the Hon’ble Apex Court in the case of Dayaram and others v. Dawalatshah and another reported in AIR 1971 SUPREME COURT 681 . Thus, defendant Nos.2, 4, and 5 have failed to prove that the plaintiff, defendant Nos.1, 3, and 6 to 9 have relinquished their right in favour of defendant Nos.2,

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4 and 5, and they became absolute owners of the suit schedule properties.

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In view of the above discussion, we hold that, the suit schedule properties are the ancestral properties of the parties to the suit, and no partition is effected between them. Further, defendant Nos.2, 4, and 5 have failed to establish that they have acquired title by virtue of Exs.D-1 to D-3 and hence, they became owners of the suit schedule properties.

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In view of the above discussion we answer Point Nos.1 in the affirmative and point No.2 in the negative.

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Point No.3: The trial Court merely relying on Exs.D-1 to D3 has recorded a finding that the plaintiff, defendant Nos.1, 3, and 6 to 9 have relinquished their right in favour of defendant Nos.2, 4 and 5. The trial Court has not examined Section 17 of the Registration Act and committed an error in dismissing the suit solely on the ground that the plaintiff has relinquished her right in

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favour of defendant Nos.2, 4 and 5. The judgment and decree passed by the trial Court is arbitrary and erroneous. Hence, in view of the above discussion, we answer point No.3 in the affirmative.

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Admittedly, defendant No.9 is the second wife of Parappa and defendant Nos.3 to 7 are the children born to defendant No.9. First a partition has to be effected between Parappa, the plaintiff, and defendant Nos.1, 2 and 8. If a partition was effected during the lifetime of Parappa, Parappa would have got 1/5^th share, defendant No.8, the plaintiff and defendant Nos.1 and 2, thereafter would have got 1/5^th share each in the suit schedule properties. Parappa died on 07.05.1993, leaving behind the plaintiff and the defendants as his legal heirs. Defendant Nos.3 to 7 are entitled to a share in the Parappa’s property as per sub-section (3) of Section 16 of the Hindu Succession Ac.

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1/5^th +1/40^th +1/15^th =7/24^th share in all the suit schedule

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properties. Defendant No.1 is entitled to 1/5^th +1/40^th +1/15^th =7/24^th share in all the suit schedule properties. Defendant No.2 is entitled to 1/5^th +1/40^th +1/15^th =7/24^th share in all the suit schedule properties. Defendant Nos.3 to 7 are entitled to 1/40^th share in the suit schedule properties.

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Point No.4. In view of answer to point Nos.1 to 3, we proceed to pass the following:

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ORDER

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The appeal is allowed. The judgment and preliminary decree dated 14.11.2018 passed in O.S.

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No.77/2015 by the learned Senior Civil Judge & JMFC, Raibag, is set aside. Consequently the suit of the plaintiff is partly decreed. The plaintiff is entitled to 1/5^th +1/40^th +1/15^th =7/24^th share in all the suit schedule properties. Defendant No.1 is entitled to

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1/5^th +1/40^th +1/15^th =7/24^th share in all the suit schedule properties. Defendant No.2 is entitled to

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1/5^th +1/40^th +1/15^th =7/24^th share in all the suit schedule properties. Defendant Nos.3 to 7 are entitled to 1/40^th share in the suit schedule properties.

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The office to draw the preliminary decree

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accordingly.

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Sd/(ASHOK S. KINAGI) JUDGE

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Sd/(UMESH M ADIGA) JUDGE

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MBS para 1 to 11, KMV para 12 to end CT: BSB

Smt.Mahadevi W/O. Gangappa Pattanshetti v. Smt.Gangawwa W/O. Basappa Patil

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Smt.Mahadevi W/O. Gangappa Pattanshetti v. Smt.Gangawwa W/O. Basappa Patil

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