Extracted from the PDF above. The PDF is authoritative.
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NC: 2025:KHC-D:1345-DB RFA No. 100132 of 2020 C/W RFA.CROB No. 100007 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 23RD DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO. 100132 OF 2020 (PAR/POS) C/W RFA CROSS OBJ NO. 100007 OF 2023
IN RFA NO.100132/2020
BETWEEN:
1. SMT. ANNAWWA W/O. JAYAPAL TALWAR @ MADAR, AGE: 60 YEARS, OCC: HOUSEHOLD WORK, R/O: BELAVI VILLAGE, TQ: HUKKERI, DIST: BELAGAVI-591211. 2. SHRI. BHIMSEN S/O. JAYAPAL TALWAR @ MADAR, AGE: 45 YEARS, OCC: AGRICULTURE, R/O: BELAVI VILLAGE, TQ: HUKKERI, DIST: BELAGAVI-591211. 3. SMT. SHOBHA W/O. JAYASINGH LONDE AGE: 34 YEARS, OCC: HOUSEHOLD WORK, R/O: BELAVI VILLAGE, TQ: HUKKERI, DIST: BELAGAVI-591211. …APPELLANTS
(BY SRI. SHIVRAJ S. BALLOLI, ADVOCATE)
Digitally signed by BHARATHI H M Location: HIGH COURT OF KARNATAKA Date: 2025.01.31 12:26:29 +0530
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AND:
1. SMT. KUNTAWWA W/O. PAVADI KARAGAON @ MADAR AGE: 61 YEARS, OCC: HOUSEHOLD WORK, R/O. BELAVI VILLAGE, TQ: HUKKERI, DIST.: BELAGAVI-591211. 2. SMT. SHIVAKKA W/O. BALAPPA BORAGAL, AGE: 52 YEARS, OCC: HOUSEHOLD WORK, R/O. SAVALGI, TQ: GOKAK, DIST.: BELAGAVI-591201. 3. SMT. RUKMAWWA W/O. MARUTI BALYAGOL AGE: 42 YEARS, OCC: HOUSEHOLD WORK, R/O. BADIGWAD, TQ: GOKAK, DIST.: BELAGAVI-591201. 4. SMT. DUNDAWWA W/O. KEMPANNA HARIJAN, AGE: 40 YEARS, OCC. HOUSEHOL WORK, R/O: UDAGATTI, TQ.GOKAK, DIST.BELAGAVI-591201. 5. SHRI. HANMANTH S/O. RAMAPPA TALWAR, AGE: 59 YEARS, OCC: AGRICULTURE AND SERVICE, R/O: BELAVI VILLAGE, TQ: HUKKERI, DIST: BELAGAVI-591211. 6. SMT. SANGEETA W/O. HANMANTH TALWAR AGE: 49 YEARS, OCC: HOUSEHOLD WORK, R/O: BELAVI VILLAGE, TQ: HUKKERI, DIST: BELAGAVI-591211. …RESPONDENTS
(BY SMT. SUNANDA P. PATIL, ADVOCATE FOR R1 TO R4;
NOTICE TO R5 AND R6 SERVED)
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THIS RFA IS FILED UNDER ORDER 41 R(1) R/W.
SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED. 19.11.2019 PASSED IN O.S.NO.52/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, HUKKERI, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. IN RFA.CROB NO.100007/2023
BETWEEN:
1. SMT. KUNTAWWA W/O. PAVADI KARAGAON @ MADAR AGE. 64 YEARS, OCC. HOUSEHOLD/ AGRICULTURE, R/O. BELAVI-591 309 TQ. HUKKERI, DIST. BELAGAVI. 2. SMT. SHIVAKKA W/O. BALAPPA BORAGAL AGE. 55 YEARS, OCC. HOUSEHOLD/ AGRICULTURE, R/O. SAVALAGI-591 231 TQ.
GOKAK, DIST. BELAGAVI. 3. SMT. RUKMAWWA W/O. MARUTI BALYAGOL AGE. 45 YEARS, OCC. HOUSEHOLD/ AGRICULTURE, R/O. BADIGWAD-591 306 TQ. GOKAK, DIST. BELAGAVI. 4. SMT. DUNDAWWA W/O. KEMPANNA HARIJAN AGE. 43 YEARS, OCC. HOUSEHOLD/AGRICULTURE, R/O. UDAGATTI-591 233 TQ. GOKAK, DIST. BELAGAVI …CROSS OBJECTORS
(BY SMT. SUNANDA P. PATIL, ADVOCATE)
AND:
1. SHRI. HANAMANTH S/O. RAMAPPA TALWAR AGE. 62 YEARS,
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OCC. AGRICULTURE NOW RETIRED R/O. BELAVI-591 309 TQ. HUKKERI, DIST. BELAGAVI
2. SMT. ANNAWWA W/O. JAYAPAL TALWAR @ MADAR AGE. 63 YEARS, OCC. HOUSEHOLD WORK, R/O. BELAVI-591 309 TQ. HUKKERI, DIST. BELAGAVI. 3. SHRI BHIMSEN S/O. JAYAPAL TALWAR @ MADAR AGE. 48 YEARS, OCC. AGRICULTURE, R/O. BELAVI-591 309 TQ. HUKKERI, DIST. BELAGAVI. 4. SMT. SHOBHA W/O. JAYASING LONDE AGE. 37 YEARS, OCC. HOUSEHOLD, R/O. BELAVI-591 309 TQ. HUKKERI, DIST. BELAGAVI. 5. SMT. SANGEETA W/O. HANAMANTH TALWAR AGE. 52 YEARS, OCC. HOUSEHOLD, R/O. BELAVI-591 309 TQ. HUKKERI, DIST. BELAGAVI. …RESPONDENTS
(BY SRI. SHIVARAJ S. BALLOLI, ADVOCATE FOR R2 TO R4;
NOTICE TO R1 AND R5 DISPENSED WITH)
THIS CROSS OBJECTION IS FILED UNDER ORDER 41 RULE 22 OF CODE OF CIVIL PROCEDURE, 1908, AGAINST THE
JUDGMENT AND DECREE DATED. 19.11.2019 PASSED IN O.S.NO.52/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, HUKKERI, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL AND CROSS OBJECTION, COMING ON FOR FINAL HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2025:KHC-D:1345-DB RFA No. 100132 of 2020 C/W RFA.CROB No. 100007 of 2023
CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA
ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)
This Regular First Appeal and Cross objection are filed by the appellants and the respondents respectively challenging the
judgment and preliminary decree dated 19.11.2019 passed in OS No.52/2016 by the learned Senior Civil Judge, Hukkeri.
2. For convenience, the parties are referred to as per their ranking before the trial Court.
3. Appellants were defendant Nos.2 to 4. Respondent Nos.1 to 4 were the plaintiffs and other respondents were the defendants. Plaintiffs filed a suit against the defendants for partition and separate possession regarding the suit schedule properties.
4.
Brief facts, leading rise to filing of this appeal are as follows:
Ramappa was the original propositus, who had a wife by name Gourawwa. Plaintiffs, defendant No.1 and the deceased
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Jayapal were the children of Ramappa. Defendant Nos.2 and 4 are the legal heirs of the deceased Jayapal and defendant No.5 is the wife of defendant No.1. It is the case of the plaintiffs that, Ramappa and Gourawwa died, leaving behind the plaintiffs and the defendants. The plaintiffs and the defendants are Hindu undivided joint family members. It is contended that the suit ‘A’ to ‘D’ schedule properties are the joint family properties of the plaintiffs and the defendants. The plaintiffs and defendants inherited the suit schedule properties through their common ancestors and are in joint possession and enjoyment of the suit schedule properties. There was no severance of status. Defendants No.1 to 3 mutated their names in respect of suit ‘A’ schedule properties. Recently, due to a difference of opinion between the plaintiffs and the defendants, the defendants are trying to obstruct the peaceful joint possession and enjoyment of the suit schedule properties by colluding with each other. The plaintiffs requested the defendants to effect partition, but the defendants refused to effect partition. Hence, a cause of action arose for the plaintiffs to file a suit for the relief of partition and separate possession. - 7 -
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5. Defendants No.2 to 4 have filed a written statement contending that, the suit filed by the plaintiffs is false and frivolous. It is claimed that defendants No.1 and 3 have 27 guntas of land in property bearing R.S.No.527, measuring 2 acres 2 guntas in ‘A’ schedule properties, 3 guntas of land in R.S.No.586 measuring 20 guntas. 1(one) acre 24 guntas of land in R.S.No.657 measuring 2 acres 22 guntas and 18 guntas of land in R.S.No.673, which are inherited by their ancestors. Defendant No.3 was in peaceful possession and enjoyment of 1/6th share of VPC No.137/2 measuring 5 acres 17 guntas, which comes to 36 guntas. The defendant No.3 was in occupancy of Sri.Laxmidevi Temple of Yadgud village. VPC No.524 mentioned in suit ’B’ schedule property was inherited by defendant Nos.1 and 3 through their ancestors.
VPC No.871/1 of Belagavi was constructed by the father of defendant No.3 i.e. Jayapal. VPC No.871/2 was constructed by defendant No.1, VPC No.516 and 526 are the ancestral properties of defendants No.1 and 3. It is contended that the propositus of the family, namely, Ramappa and Gourawwa performed the marriage of plaintiff No.1 and spent Rs.10,000/- towards marriage expenses and gave two tolas of gold. - 8 -
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Propositus died on 12.01.1981. The father of defendant No.3 and his mother Gourawwa performed the marriage of plaintiffs No.2 and 3. Plaintiff No.3 is not on good terms with her husband. Hence, she left her matrimonial home and started to live at her parent’s house. It is contended that, defendant No.1 was serving at Forest Department. As there was a misunderstanding between the daughters of the propositus, defendants No.1 and 3 partitioned their properties equally on the eve of Ugadi festival in 1992. The plaintiffs knowing full
facts have filed the present suit. Hence, on these grounds prays to dismiss the suit.
6. The trial Court based on the pleadings of the parties, has framed the following issues: Issues
1. Whether the plaintiffs prove that themselves and the defendants are the member of Hindu undivided family?
2. Whether the plaintiffs further proves that the suit schedule properties are their ancestral as well as joint family properties?
3. Whether defendants proves that the suit is bad for non-joinder of necessary parties?
4. Whether the defendants further proves that there was a earlier partition in the year 1992 and thus suit for repartition does not arise?
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5. Whether plaintiffs are entitled for their 2/3rd share in the suit schedule properties by metes and bounds?
6. Whether the plaintiffs entitled for reliefs as claimed?
7. What order or decree?
7. To substantiate their case, the plaintiffs examined plaintiff No.4 as PW.1 and marked 11 documents as Exs.P1 to P11. Defendant No.3 was examined as DW.1, examined one witness as DW.2 and marked 17 documents as Exs.D1 to D17. The trial Court, after recording the evidence, and hearing on both sides and assessing the oral and the documentary evidence, answered issue Nos.1 and 2 in the affirmative, issue Nos.3 and 4 in the negative, issue Nos.5 and 6 partly in the affirmative and issue No.7 as per final order. The suit of the plaintiffs was
decreed in part. It is declared that, the plaintiff Nos.1 to 4 are entitled to 1/18th share in the suit schedule properties by metes and bounds, and legal heirs of the defendants No.2 to 4 together and defendant No.1 are entitled to 7/18th share each in the suit schedule properties by metes and bounds. Defendants No.2 to 4 aggrieved by the impugned judgment and preliminary decree, and the plaintiffs aggrieved by the quantum
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of share awarded by the trial Court, filed the appeal and the cross objection.
8. Heard the learned counsel for defendant Nos.2 to 4 and
learned counsel for the plaintiffs.
9.
Learned counsel for the defendants No.2 to 4 submits that there was a prior partition between the father of defendants No.3 and 4 and defendant No.1 in 1992 and the parties have acted upon it. He submits that the revenue records are changed in the name of respective parties, based on the oral partition. He submits that the trial Court has not properly considered the documents produced by the parties. He submits that, the trial Court has committed an error in decreeing the plaintiffs’ suit. Hence, on these grounds, he prays to allow the appeal and dismiss the cross-objection filed by the plaintiffs.
10. Per contra, learned counsel for the plaintiffs submits that, though the defendants have taken a defense that, there was a prior partition, the defendants have not examined any independent witness to prove that, there was a partition between the father of the defendant Nos.3 and 4 and the defendant No.1. She submits that, the revenue records still
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stand in the name of Ramappa. She submits that the plaintiffs are the daughters of Ramappa, who died in the year 1981. She submits that, as per Section 6 of the Hindu Succession (Amendment) Act, 2005, the daughters are the coparceners and are entitled to an equal share with that of a son. She submits that each plaintiff is entitled to 1/6th share, but the trial Court has granted 1/18th share. Hence, she submits that the trial Court has committed an error in quantifying the share of the plaintiffs. Hence, she submits that, the trial Court was justified in answering issue No.4 in the negative. Hence, on these grounds, she prays to dismiss the appeal filed by defendant Nos.2 to 4 and allow the cross objection.
11. Perused the records and considered the submissions of the learned counsel for the parties.
12. The points that would arise for our consideration are; 1) Whether defendant Nos.2 to 4 prove that, there was a prior partition in 1992 between Jayapal and defendant No.1? 2) Whether the trial Court justified in granting 1/18th share to the plaintiffs?
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3) What order or decree?
13. Point Nos.1 and 2 are taken together for common
discussion to avoid repetition of facts. Point Nos.1 and 2:-
14. It the case of the plaintiffs that, the suit schedule properties were owned and possessed by Ramappa, i.e., original propositus. He died leaving behind the plaintiffs and the defendants as his legal heirs. It is contended that, the plaintiffs and the defendants are the members of the Hindu undivided joint family and no partition effected between the plaintiffs and the defendants. The plaintiffs to substantiate their case, plaintiff No.4 was examined as PW.1 and produced records. Ex.P1 is the RTC extract of the land bearing R.S.No.527 standing in the name of Ramappa i.e., the original propositus. Ex.P2 is the RTC extract of the land bearing R.S.No.586 standing in the name of defendant No.1 and defendant No.3. Ex.P3 is the record of rights pertaining to R.S.No.657. Ex.P4 is RTC extract of the land bearing R.S.No.673 standing in the name of defendant No.3. Ex.P5 is the khata extract of R.S.No.137/2 standing in the name of Gourawwa. Ex.P6 is the
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certificate issued by the Gram Panchayat, Belvi, pertaining to VPC No.524. Ex.P7 is the certificate issued by the Gram Panchayat, Belvi pertaining to VPC No.871/1. Ex.P8 is the certificate issued by the Gram Panchayat, Belvi pertaining to VPC No.871/2. Ex.P9 is the certificate issued by the Gram Panchayat, Belvi pertaining to VPC No.516. Ex.P10 is the certificate issued by the Gram Panchayat, Belvi pertaining to VPC No.526. Ex.P11 is the certified copy of records of rights pertaining to R.S.No.137/2. 15. During the cross examination, it was suggested to PW.1 that there was a prior partition between the Jayapal and defendant No.1 in 1992. The said suggestion was denied by PW.1. In rebuttal, defendant No.3 was examined as DW.1 and he reiterated the written statement averments in the examination-in-chief and also produced the documents to establish that the properties were standing in the name of Ramappa i.e., the original propositus. Though the defendants have contended that there was a prior partition, defendant No.3, except producing the record of rights has not produced any material to establish that, there was a prior partition between defendant No.1 and Jayapal i.e., the father of the
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defendant Nos.3 and 4.
Further, during cross-examination, DW.1 himself has admitted that there was no partition effected, by metes and bounds between him, his father and sisters of his father. The said admission itself is clear that, there was no prior partition between the Class-I legal representatives of original propositus. In the current case, plaintiffs and the defendants are the Class-I heirs of Ramappa. It is the case of the defendants that Ramappa performed the marriage of the plaintiff No.1 and after his demise, defendant No.3 and his mother Gourawwa performed the marriage of all other plaintiffs and they have given gold and money at the time of their marriage and hence, they are not entitled to any share in the suit schedule properties. DW.1 has admitted that, the suit schedule properties were owned and possessed by Ramappa. The plaintiffs and the defendants being the coparceners and members of a Hindu undivided, joint family, no partition is effected between them. The trial Court was justified in recording a finding that the defendants have failed to establish that there was a prior partition between defendant No.1 and the father of the defendant Nos.3 and 4. - 15 -
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16. Perusal of the revenue records discloses that some of the revenue records are still standing in the name of deceased Ramappa. The said documents reflect that there was no partition effected between the plaintiffs and the defendants. Plaintiffs, being the daughters of Ramappa, are entitled to an equal share as per Section 6 of the Hindu Succession (Amendment) Act, 2005, wherein the trial Court has effected notional partition and granted 1/18th share each to the plaintiffs. In view of the law laid down by the Hon’ble Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and others, reported in ILR 2020 KAR 4370, the daughters are equally entitled to a share with that of a son.
Hence, the trial Court has committed an error in granting 1/18th share to the plaintiffs. As observed above, the defendants have failed to prove the prior partition. In view of the above discussions, we answer points No.1 and 2 in the negative. Point No.3:-
17. Hence, we proceed to pass the following:
ORDER
Regular First Appeal No.100132/2020 is dismissed.
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RFA Crob.No.100007/2023 filed by the plaintiffs is allowed. The judgment and decree passed by the trial Court is modified.
The plaintiffs are entitled to 1/6th share each in the suit schedule properties, defendant Nos.2 to 4 together are entitled to 1/6th share and defendant No.1 is entitled to 1/6th share in the suit schedule properties by metes and bounds.
The office is directed to draw preliminary decree accordingly.
Sd/- (ASHOK S. KINAGI) JUDGE
Sd/- (UMESH M ADIGA) JUDGE
HMB Ct-cmu LIST NO.: 1 SL NO.: 15