Karnataka High Court
Dr.Mahadevappa S/O Nagappa Koti vs Smt.Iravva W/O Marudrappa Hosamani on 16 January, 2024
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NC: 2024:KHC-D:920-DB
RFA No. 100268 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100268 OF 2019 (PAR/POS)
BETWEEN:
DR. MAHADEVAPPA S/O. NAGAPPA KOTI
AGE: 69 YEARS, OCC: RETD. GOVT. MEDICAL
PRACTITIONER, R/O: RAMBAPURI KALYAN MANTAPA,
GANAPATI TEMPLE BACK SIDE,
VIDYANAGAR, HUBBALLI-580020.
...APPELLANT
(BY SRI. SHRIKANT T. PATIL AND
SRI. ROHIT S.PATIL, ADVOCATES)
AND:
1. SMT. IRAVVA W/O. MARUDRAPPA HOSAMANI
AGE: 77 YEARS, OCC: HOUSEHOLD WORK,
R/O: TADAKOD, DHARWAD-580001.
2. SMT. GANGAVVA W/O. IRAPPA KOTAGI
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
R/O: UDIKERI, TQ: BAILHONGAL,
Digitally signed
by
MOHANKUMAR
MOHANKUMAR B SHELAR
DIST: BELAGAVI-591104.
B SHELAR
Date:
2024.02.08
12:09:15 +0530
3. SHRI. RUDRAPPA S/O. TOTAPPA DODAWAD
AGE: 63 YEARS, OCC: BUSINESS,
R/O: MARADIGALLI, TQ: BAILHONGAL,
DIST: BELAGAVI-591104.
4. SHRI. FAKIRAPPA S/O. TOTAPPA DODAWAD
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O: KOPPADAGALLI, TQ: BAILHONGAL,
DIST: BELAGAVI-591104.
5. SMT. SHANKAREVVA
W/O. SHIVALINGAPPA DODAWAD,
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O: MEHABOOB NAGAR, DHARWAD-580001.
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NC: 2024:KHC-D:920-DB
RFA No. 100268 of 2019
6. SMT. MURIGEVVA W/O. YALLAPPA NAGAYI
AGE: 54 YEARS, OCC: HOUSEHOLD WORK,
R/O: HOSPET ONI, TQ: SAVADATTI,
DIST: BELAGAVI-591173.
7. SMT. GANGAVVA W/O. SHIVANAND SHIVANNAVAR,
AGE: 49 YEARS, OCC: TEACHER,
R/O: MAHANTESH CHAWL
C/O. G.S. CHAVADI, ADVOCATE,
TQ: BAILAHONGAL, DIST: BELAGAVI-591104.
8. SMT. RASHMI D/O. MAHADEVAPPA KOTI
AFTER MARRIAGE
SMT. RASHMI W/O. GIRISH NULI,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O: #VIDYAVANA, RAMBAPURI,
KALYAN MANTAPA, VIDYANAGAR,
HUBBALLI-580020.
9. SMT. MEDHA @ SUPRANA
D/O. MAHADEVAPPA KOTI,
AFTER MARRIAGE SMT. MEDHA @ SUPRANA
W/O. BASAVARAJ NAGUR,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O: #VIDYAVANA, RAMBAPURI,
KALYAN MANTAPA, VIDYANAGAR, HUBBALLI-580020.
...RESPONDENTS
(BY SRI. SHIVARAJ C.BELLAKKI AND
SRI. RAKESH M.BILKI, ADVOCATES FOR R1 AND R2;
SRI. ABHISHEK L.KALLED, ADVOCATE FOR R4 AND R6;
NOTICE TO R3, R7 ARE SERVED;
NOTICE TO R5 IS DISPENSED WITH;
NOTICE TO R8 AND R9 ARE HELD SUFFICIENT)
THIS RFA IS FILED UNDER ORDER 41 RULE 1 READ WITH SEC.
96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
28.03.2019 PASSED IN O.S.NO.273/2015 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL
MAGISTRATE, DHARWAD, PARTLY DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
THIS RFA COMING ON FOR ADMISSION, THIS DAY, ASHOK S.
KINAGI, J., DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:920-DB
RFA No. 100268 of 2019
JUDGMENT
This appeal is filed challenging the judgment and preliminary decree dated 28.03.2019 passed in O.S.No.273/2015 by the III Additional Senior Civil Judge and CJM, Dharwad.
2. For the sake of convenience, parties are referred to as per their ranking before the trial court.
3. Appellant is defendant No.1 and respondent Nos.1 and 2 are the plaintiffs and respondent Nos.3 to 8 are other defendants.
4. Plaintiffs filed a suit for partition and separate possession of 1/4th share each in the suit property and to declare that the gift deed executed by defendant No.1 in favour of defendant Nos.7 and 8 dated 04.09.2015 and partition deed dated 12.01.2017 are null and void and not binding on the shares of the plaintiffs. It is the case of the plaintiffs that one Nagappa was the propositus who died on 21.05.1976 leaving behind his son Mahadevappa i.e., defendant No.1, daughters, Gadigevva mother of -4- NC: 2024:KHC-D:920-DB RFA No. 100268 of 2019 defendant Nos.2 to 6, Iravva i.e., plaintiff No.1 and Smt. Basavva who died about 46 years leaving behind her only daughter Gangavva i.e., plaintiff No.2 as his legal heirs. The suit schedule property is the ancestral property of the plaintiffs and the defendants. Suit property was allotted to the share of original propositus. Defendant No.1 is enjoying the suit schedule property. Plaintiffs requested the defendants to effect partition and separate possession, which was denied by the defendants. Hence, cause of action arose for the plaintiffs to file the suit for partition and separate possession.
5. Defendant No.1 filed written statement admitting the relationship of plaintiffs and defendants. It is contended that the suit is defective for non-joinder of necessary parties and non-inclusion other joint family properties and suit for partial partition is not maintainable and prayed to dismiss the suit.
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6. defendant Nos.7 and 8 filed written statement reiterating the written statement filed by defendant No.1 and prayed to dismiss the suit.
7. The trial court on the basis of the pleadings of the parties framed following issues and additional issue:
1) Whether the plaintiffs prove that suit property is ancestral property and in joint cultivation and possession of themselves and defendants?
2) Whether suit of the plaintiffs is bad for non joinder of necessary parties and properties?
3) Whether plaintiffs are entitled for partition and separate possession of 1/4th share each as claimed?
4) Whether plaintiffs are entitled for mesne profits as claimed?
5) What order or decree?
Additional issue:
1) Whether the suit of the plaintiff is bad for non joinder of necessary parties and non inclusion of properties?-6-
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8. In order to prove their case, plaintiff No.1 was examined as P.W.1 and examined one witness as P.W.2 and got marked 21 documents as Exs.P1 to P21. Defendant No.1 was examined as D.W.1 and got marked 3 documents as Exs.D1 to D3. The trial court on assessment of oral and documentary evidence answered issue No.1 in the affirmative, issue No.3, partly affirmative, issue Nos.2, 4 and additional issue No.1 in the negative, issue No.5 as per final order. The suit of the plaintiffs is partly decreed. It is ordered and decreed that plaintiff Nos.1 and 2 are entitled for 1/8th share each in the suit property. It is further declared that the gift deed executed by defendant No.1 in favour of defendant Nos.7 and 8 dated 04.09.2015 and partition deed dated 12.01.2017 are not binding on the share of the plaintiffs. Defendant No.1 aggrieved by the judgment and preliminary decree filed this appeal.
9. Heard the learned counsel for defendant No.1 and learned counsel for the plaintiffs. -7-
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10. Learned counsel for defendant No.1 submits that plaintiffs have not included other joint family properties, hence, the suit for partial partition is not maintainable. He submits that trial court has failed to consider the said aspect and answered issue No.2 in the negative. Hence, he submits that the trial court committed an error in entertaining the suit for partial partition. Hence, on these grounds he prays to allow the appeal.
11. Learned counsel for the plaintiffs submits that pursuant to the preliminary decree passed in O.S.No.273/2015, plaintiffs have filed final decree proceedings and the FDP court has already drawn the final decree on 13.10.2023. He further submits that though defendant No.1 has taken a specific defence in the written statement that, plaintiffs have not included other joint family properties, but defendant No.1 has not produced any records to establish that the properties which are not included by the plaintiffs in the suit are the joint family properties. He submits that the trial court recorded a -8- NC: 2024:KHC-D:920-DB RFA No. 100268 of 2019 finding that defendant No.1 has failed to produce the documents to establish the properties which are not included in the suit are the family properties. He submits that the judgment and preliminary decree passed by the trial court is just and proper and does not call for any interference. Hence, on these grounds, he prays to dismiss the appeal.
12. Perused the records and considered the submissions of the learned counsel for the parties. The points that arise for our consideration are:
1) Whether defendant No.1 proves that land bearing Sy.No.124 is the joint family property and suit for partial partition is not maintainable?
2) Whether defendant No.1 proves that judgment and decree passed by the trial court is perverse and arbitrary?
3) What order or decree?-9-
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13. Point Nos.1 to 3 are interlinked to each other and hence, they are taken up together for discussion to avoid repetition of the facts.
14. From perusal of the pleadings and records, there is no dispute in regard to relationship between the parties and also in regard to the nature of the properties.
The only grievance of defendant No.1 is that plaintiffs have not included other joint family properties. In order to substantiate the defence of defendant No.1, defendant No.1 except pleading that Sy.No.124 is the joint family property has not produced any records to establish that Sy.No.124 is the joint family property of plaintiffs and defendants. In the absence of a document, the trial court was justified in recording a finding that defendant No.1 has failed to prove that plaintiffs have not included other joint family properties. Further, the trial court considering the relationship between the parties and also nature of the suit schedule property has rightly decreed the suit of the plaintiffs and granted share to plaintiff Nos.1 and 2.
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NC: 2024:KHC-D:920-DB RFA No. 100268 of 2019 Further, we have already recorded a finding that suit schedule property is the ancestral property of the plaintiffs and defendants, defendant No.1 has no right to execute the gift deed in favour of defendant Nos.7 and 8. As per Mulla's Hindu Law, Text 256 which reads as under:
"256. Gift of undivided interest- According to Mitakshara law as applied in all the states, no coparcener can dispose of his undivided interest in coparcenery property by gift. Such transaction being void altogether, there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of other coparceners."
According to Mitakshara law as applied in all the states, no coparcener can dispose off his undivided interest coparcenary property by gift.
15. Admittedly, suit schedule property is the ancestral property. Defendant No.1 had no right to dispose off his undivided interest in the coparcernary property by way of gift. The gift executed by defendant No.1 in favour of defendant Nos.7 and 8 is void and is not binding on the share of the plaintiffs. The trial court properly considered
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NC: 2024:KHC-D:920-DB RFA No. 100268 of 2019 the material placed on record and has rightly decreed the suit. Learned counsel for the plaintiffs submits that pursuant to the preliminary decree, plaintiffs filed final decree proceedings in FDP No.34/2019 which came to be disposed off vide order dated 13.10.2023. The FDP court has drawn the final decree. In view of the above discussion, we answer point Nos.1 to 3 in the affirmative. Accordingly, we proceed to pass the following:
ORDER
i) The appeal is dismissed.
ii) The judgment and preliminary decree
dated 28.03.2019 passed in
O.S.No.273/2015 by the III Additional Senior Civil Judge and CJM, Dharwad is confirmed.
iii) No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE MBS Ct:Vh List No.: 1 Sl No.: 38