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2025 DAILYLAW 4309 (KAR)

DEVAMMA W/O. DURGAPPA HALAKERI v. TIPPANNA @ TIMMANNA S/O. FAKIRAPPA HALAKERI

RFA/100083/2015 · 2025-01-29

Hanchate Sanjeevkumar

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Judgment text

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- 1 - NC: 2025:KHC-D:1746 RFA No. 100083 of 2015 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 29TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.100083 OF 2015 (PAR) BETWEEN: 1. SMT. DEVAMMA W/O. DURGAPPA HALAKERI @ WADDAR, AGE: 34 YEARS, OCC: HOUSEHOLD, R/O. SHIKARIPUR, DIST: SHIMOGA. 2. SMT. LAXMI W/O. ANNAPPA HALAKERI @ WADDAR, AGE: 32 YEARS, OCC: HOUSEHOLD, R/O: BHAVANI NAGAR, HUBBALLI, DIST: DHARWAD. 3. SRI SHANTESH S/O. TIPPANNA @ TIMMANNA HALAKERI @ WADDAR, AGE: 30 YEARS, OCC: AGRICULTURE, R/O. TIRLAPUR, TQ: NAVALAGUND, DIST: DHARWAD. 4. SMT. SHOBHA W/O. SHEKAPPA ATTIGERI, AGE: 28 YEARS, OCC: HOUSEHOLD, R/O. KORADIKERI, HUBBALLI, DIST: DHARWAD. 5. SMT. MANJULA W/O. NAGARAJ HALAKERI @ WADDAR, AGE: 25 YEARS, OCC: HOUSEHOLD, R/O. GARALADINNI, TQ: AND DIST: DHARWAD. 6. SRI PANDURANG S/O. TIPPANNA @ TIMMANNA HALAKERI @ WADDAR, AGE: 34 YEARS, OCC: COOLIE, R/O. TIRLAPUR, TQ: NAVALAGUND, DIST: DHARWAD. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:1746 RFA No. 100083 of 2015 7. KUMARI SAKKUBAI D/O. TIPPANNA @ TIMMANNA HALAKERI @ WADDAR, AGE: 23 YEARS, OCC: HOUSEHOLD, R/O. TIRLAPUR, TQ: NAVALAGUND, DIST: DHARWAD. 8. KUMARI RUKMINI D/O. TIPPANNA @ TIMMANNA HALAKERI @ WADDAR, AGE: 22 YEARS, OCC: HOUSEHOLD, R/O. TIRLAPUR, TQ: NAVALAGUND, DIST: DHARWAD. 9. SMT. HANUMAVVA W/O. TIPPANNA @ TIMMANNA HALAKERI @ WADDAR, AGE: 59 YEARS, OCC: HOUSEHOLD, R/O. TIRLAPUR, TQ: NAVALAGUND, DIST: DHARWAD. …APPELLANTS (BY SMT. PALLAVI S.PACHHAPURE, ADVOCATE FOR SRI SRINAND A.PACHHAPURE, ADVOCATE) AND: 1. SRI TIPPANNA @ TIMMANNA S/O. FAKIRAPPA HALAKERI @ WADDAR, AGE: 69 YEARS, OCC: AGRICULTURE, R/O. TIRLAPUR, TQ: NAVALGUND, DIST: DHARWAD. 2. SRI MALLIKARJUN S/O. CHIDANAND JAKKALI SINCE DECEASED BY HIS LR’S 2A SMT. CHANNAVVA W/O. MALLIKARJUN JAKKALI, AGE: 50 YEARS, OCC: HOUSEHOLD WORK, R/O: CHILAKWAD, TQ: NAVALAGUND, DIST: DHARWAD-580001. 2B SMT. JYOTHI D/O. MALLIKARJUN JAKKALI, AGE: 30 YEARS, OCC: HOUSEHOLD WORK, R/O: CHILAKWAD, TQ: NAVALAGUND, DIST: DHARWAD-580001. 2C SMT. BASAMMA D/O. MALLIKARJUN JAKKALI, AGE: 28 YEARS, OCC: HOUSEHOLD WORK, - 3 - NC: 2025:KHC-D:1746 RFA No. 100083 of 2015 R/O: CHILAKWAD, TQ: NAVALAGUND, DIST: DHARWAD-580001. 2D SRI. ANAND S/O. MALLIKARJUN JAKKALI, AGE: 27 YEARS, OCC: AGRICULTURE, R/O: CHILAKWAD, TQ: NAVALAGUND, DIST: DHARWAD-580001. 2E SMT. VIJAVVA D/O. MALLIKARJUN JAKKALI, AGE: 23 YEARS, OCC: HOUSEHOLD WORK, R/O: CHILAKWAD, TQ: NAVALAGUND, DIST: DHARWAD-580001. 3. SRI. TIRAKAPPA S/O. GOVINDAPPA HEBBALLI @ SHINDHE, AGE: MAJOR, OCC: AGRICULTURE, R/O: ITIGATTI, TQ: AND DIST: DHARWAD. 4. SRI. GOVINDAPPA S/O. TIRAKAPPA HEBBALLI @ SHINDHE, AGE: 14 YEARS, OCC: STUDENT, R/O: ITIGATTI, TQ: AND DIST: DHARWAD, SINCE MINOR REPRESENTED BY RESPONDENT NO.3. …RESPONDENTS (BY SRI VIDYASHANKAR G.DALWAI, ADVOCATE FOR R1; R2 (A), (B), (C), (D) AND (E)-NOTICE HELD SUFFICIENT (R2-ABATED); NOTICE TO R3 IS SERVED; R4-MINOR REPRESENTED BY R3) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 20.12.2014 PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, DHARWAD IN O.S. NO.99/2010 AND ALLOW THIS APPEAL, IN THE INTEREST OF JUSTICE. THIS REGULAR FIRST APPEAL COMING ON FOR DISMISSAL THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 4 - NC: 2025:KHC-D:1746 RFA No. 100083 of 2015 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by the plaintiffs, challenging the judgment and decree dated 20.12.2014, passed in O.S.No.99/2010, by the Court of Principal Senior Civil Judge and CJM, Dharwad (hereinafter referred to as the ‘Tribunal’), thereby the suit filed for partition and separate possession is dismissed by the Trial Court. 2. For the purpose of convenience and easy reference, ranking of the parties is referred to as per their status before the trial Court. 3. The plaintiffs No.1 to 8 are sons and daughters of defendant No.1-father and plaintiff No.9-mother of which constitute Hindu undivided and joint family. It is pleaded that all the suit schedule properties are ancestral and joint family properties. Therefore, filed a suit for partition and separate possession claiming 1/10th share each in the suit schedule properties. - 5 - NC: 2025:KHC-D:1746 RFA No. 100083 of 2015 4. It is further pleaded that defendant No.1 and plaintiff No.9 have never executed registered sale deed in favour of defendant No.2 on 30.6.1998 and the said registered sale deed dated 30.06.1998 is fraudulent one. Since it is ancestral and joint family property, the defendant No.1 had no competency to sell the land and in fact, defendant No.1 has not sold the property by way of sale deed dated 30.06.1998. Defendants No.3 and 4 are purchasers of the suit schedule land from defendant No.2. Therefore, the plaintiffs have filed a suit for partition and separate possession. 5. In pursuance to the summons, the defendants have appeared and filed the written statement. 6. Defendant No.1 who is father of plaintiffs No.1 to 8 and husband of plaintiff No.9 has filed a written statement admitting the joint family status as well as the suit properties are ancestral properties. Further, has taken pleading that he has not executed any sale deed on 30.06.1998. It is defence of defendant No.1 that he has availed a loan of Rs.5,000/- from the defendant No.2 and defendant No.2 has created a - 6 - NC: 2025:KHC-D:1746 RFA No. 100083 of 2015 fraudulent sale deed as if, defendant No.1 had sold the land. Therefore, supported the case of plaintiffs. 7. Defendants No.2 to 4 have field their written statement contending that defendant No.1 being a Karta and manager of the family, has sold the suit schedule land by way of registered sale deed dated 30.6.1998 in favour of defendant No.2 and thereafter, defendant No.2 has sold the land in favour of defendants No.3 and 4. Therefore, it is pleaded that defendant No.1 has sold the land for family and legal necessities. Therefore, the said sale transaction is valid one. Hence, prays to dismiss the suit. 8. The trial Court based on the pleadings, has framed following: ISSUES i. Whether the plaintiffs prove that the Suit schedule property is a joint family property of Plaintiffs and first defendant and they have been in joint possession of the same? ii. Whether the plaintiffs prove that the sale deed executed by the first defendant in - 7 - NC: 2025:KHC-D:1746 RFA No. 100083 of 2015 favour of the 2nd defendant is null and void and not binding on them? iii. Whether the plaintiff proves that the sale deed executed by the 2nd defendant in favour of the 3rd defendant is null and void and not binding on the plaintiffs? iv. Whether the 3rd defendant proves that the first defendant has sold the schedule property to the 3rd defendant for his legal necessity? v. Whether the defendant No.4 proves that he is a bonafide purchaser for value? vi. Whether the plaintiff is entitled for 1/3rd share each and its separate possession of the suit schedule property? vii. What Order or decree? 9. Plaintiff No.3 is examined as PW-1 and 3 witnesses have been examined as PWs-2 to 4 and got marked documents as Exs.P1 to P7. Defendant No.2 is examined as DW-1. Defendant No.3 is examined by DW-2 and marked documentary documents as Ex.D-1 to D-13 on behalf of the defendants. - 8 - NC: 2025:KHC-D:1746 RFA No. 100083 of 2015 10. The trial Court dismissed the suit on the reason that the sale deed executed on 30.06.1998 as per Ex.D-1 by defendant No.1 in favour of defendant No.2 is for legal and family necessities. Therefore, dismissed the suit. It has assigned reason that defendant No.1 is father of plaintiffs No.1 to 8 and husband of plaintiff No.9 and has executed sale deed in favour of defendant No.2 for family and legal necessities. Therefore, dismissed the suit. 11. Being aggrieved by the same, the plaintiffs have preferred the present appeal by raising various grounds that defendant No.1 was not having exclusive ownership over the properties, as the suit properties are ancestral properties and he could not have sold the land. The plaintiffs are also having equal share in the property and what was the sale deed made by the defendant No.1 is depriving in the legitimate share and right of the plaintiffs. Therefore, the suit ought to have been decreed. Hence, prays to allow the appeal. - 9 - NC: 2025:KHC-D:1746 RFA No. 100083 of 2015 12. The respondent No.1 appeared through advocate and defendants No.2 to 4 though received notice, but they are not represented through the advocate. 13. Heard arguments from both sides and perused the records. 14. The points that arise for my consideration are as follows: i. Whether, under the facts and circumstances involved in the case, plaintiffs prove that the suit schedule land is ancestral property and coparceners are entitled to 1/10th share each in the suit schedule land? ii. Whether, under the facts and circumstances involved in the case, defendants/respondents No.2 to 4 prove that the sale effected by defendant No.1 in favour of defendant No.2 is for family and legal necessities, thus, the plaintiffs are not entitled for relief of partition? - 10 - NC: 2025:KHC-D:1746 RFA No. 100083 of 2015 15. The learned counsel for the appellants/plaintiffs submitted that admittedly the suit schedule land is ancestral property and defendant No.1 is not exclusive owner of the property. It is submitted that there was loan transaction between defendant No.1 and defendant No.2 as defendant No.1 has raised loan of Rs.5,000/- and for security thereon, defendant No.2 has taken signatures of defendant No.1 in blank papers and those were misused and leads to fraudulent sale deed and got registered. In this regard, defendant No.1 also has stated that he has not executed sale deed and also submitted that there was no legal and family necessity of selling the land in favour of defendant No.2 and whatever sale transaction as per Ex.D-1 is causing depriving the rights and legitimate share of the plaintiffs. Therefore, the suit filed by the plaintiffs ought to have been decreed, but the trial Court has not appreciated evidence in this regard correctly resulting in erroneous judgment and decree. Therefore, prays to set aside the judgment and decree passed by the trial Court by allowing the appeal. - 11 - NC: 2025:KHC-D:1746 RFA No. 100083 of 2015 16. Learned counsel for respondent/defendant No.1 argued in the line with the appellants/plaintiffs. 17. The fact that defendant No.1 is father and plaintiff No.9 is mother of plaintiffs No.1 to 8, is not in dispute and also they constitute Hindu undivided family is also not in dispute. The suit schedule land is ancestral property is also not in dispute. 18. It is the case pleaded by the plaintiffs and supported by defendant No.1 and also that defendant No.1 has received loan of Rs.5,000/- from defendant No.2 and defendant No.2 has obtained signature of defendant No.1 on the blank papers and converted it into fraudulent sale deed. But Ex.D-1 is the registered sale deed for which the defendant No.1 must have gone to the office of the Sub- Registrar and executed the sale deed. Though, Ex.D-1-Sale deed is proved to be having executed but the question is whether defendant No.1 is having absolute right of selling the land to defendant No.1 depriving legitimate share and right of the plaintiffs is to be considered. - 12 - NC: 2025:KHC-D:1746 RFA No. 100083 of 2015 19. The plaintiffs and defendant No.1 have tried to give evidence at their best in a probable way that defendant No.2 has given loan of Rs.5,000/- to defendant No.1 and for security of the said loan transaction, signature of defendant No.1 was taken on blank papers. But as discussed above, Ex.D-1 is registered sale deed and for this defendant No.1 must have gone to the office of Sub-Registrar for execution of sale deed. But the suit property is ancestral property. Therefore, plaintiffs are also having inherent right and legitimate share in the suit schedule land. 20. Defendant No.1 alone is not competent to execute the sale deed in favour of defendant No.2. It is burden of defendant No.2 to prove what is the family and legal necessity of selling the land. Defendant No.1 has supported the case of plaintiffs. Under the compelling circumstances what would have been legal and family necessities ought to have been proved in all circumstances by defendant No.2 but that burden is not discharged in this case. - 13 - NC: 2025:KHC-D:1746 RFA No. 100083 of 2015 21. It is the case of defendants No.2, 3 and 4 that defendant No.1 has sold the land to defendant No.2 and in turn defendant No.2 has sold the land in favour of defendants No.3 and 4 by placing reliance on Ex.D.1 sale deed. Except this, there is no evidence by the defendants. Therefore in this regard the question to be considered is by way of execution of said sale deed Ex.D.1 whether it causes deprivation of right of plaintiffs of getting the legitimate share. When execution of sale deed Ex.D.1 is not proved to be for legal and family necessities, then the said sale deed is not binding on the plaintiffs. Therefore, the plaintiffs are having share in the suit schedule property and Ex.D.1 sale deed dated 30.06.1998 is not binding on the plaintiffs. 22. This is not considered by the trial Court correctly while appreciating the evidence on record. Therefore, it is held that the sale deed executed at Ex.D.1 dated 30.06.1998 is not binding on the plaintiffs and it is only binding on defendant No.1. Therefore, defendants No.2 to 4 are entitled for the property only to the extent what defendant No.1 would get in the partition. Therefore, I answer point No.1 in - 14 - NC: 2025:KHC-D:1746 RFA No. 100083 of 2015 the affirmative and point No.2 in the negative holding that Ex.D.1 sale deed is not binding on the plaintiffs. 23. Hence, the plaintiffs are entitled for 1/9th share each and defendant No.1 being the father is also entitled for 1/9th share. Therefore, the appeal filed by the appellants/plaintiffs is liable to be allowed in part, thereby the judgment and decree passed by the trial Court is liable to be set aside. The defendants No.3 and 4 are entitled for the property to the extent of share of defendant No.1 as per his share. Hence, I proceed to pass the following: ORDER i. The appeal is allowed in part. ii. The judgment and decree dated 20.12.2014, passed in O.S.No.99/2010, by the Court of Principal Senior Civil Judge and CJM, Dharwad, is set aside. iii. The suit in O.S.No.99/2010 is decreed in part. - 15 - NC: 2025:KHC-D:1746 RFA No. 100083 of 2015 iv. The sale deed executed by defendant No.1 in favour of defendant No.2 and the sale deed executed by defendant No.2 in favour of defendants No.3 and 4 is not binding on the plaintiffs. v. The plaintiffs No.1 to 8 and defendant No.1 are entitled for 1/9th share each in the suit properties. vi. Defendants No.2, 3 and 4 would get the land to the extent what defendant No.1 would get in the partition. vii. No order as to costs. viii. Draw decree accordingly. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE RKM-para 1 to 20. MRK-para 21 to end. CT: UMD. List No.: 1 Sl No.: 11.