Karnataka High Court
Sadeppa S/O. Ningappa Pachapur vs Gangavva @ Shantavva W/O. Bhimappa on 23 July, 2021
Author: R.Devdas
Bench: R.Devdas
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF JULY, 2021
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
R.F.A.No.100019/2014 (PAR. & SEP. POSSN.)
BETWEEN:
SADEPPA S/O. NINGAPPA PACHAPUR,
SINCE DECEASED BY HIS LRs
1(A). SMT.BASAWWA ISWARAPPA SANNATHOTAGI,
AGE:55 YEARS, OCC:HOUSEHOLD WORK,
R/O H.No.4, HANUMAN NAGAR, YADAVANAHALLI,
ATTIBELE ANEKAL TALUK,
DIST:BENGALURU.
1(B) SMT.NINGAWWA SHIVAPPA TOTAGI,
AGE:54 YEARS, OCC:HOUSEHOLD WORK,
R/O MANNIKERI, TALUK:GOKAK,
DIST:BELAGAVI.
1(C) SMT.MALLAWWA SHIDDAPPA MUGABASAV,
AGE:53 YEARS, OCC:HOUSEHOLD WORK,
R/O INAMHONGAL, TALUK:SAUNDATTI,
DIST:BELAGAVI.
1(D) SMT.SAVAKKA GANGAPPA SANKANNAVAR,
AGE:52 YEARS, OCC:HOUSEHOLD WORK,
R/O DHUPADAL, POST:KARLAKATTI,
TALUK:SAUNDATTI, DIST:BELAGAVI.
1(E) SMT.YALLAWWA MAHADEVAPPA HITTANAGI,
AGE:51 YEARS, OCC:HOUSEHOLD WORK,
R/O DHUPADAL, POST:KARLAKATTI,
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TALUK:SAUNDATTI, DIST:BELAGAVI.
1(F) SMT.SHANTAWWA YALLAPPA DANDIN,
AGE:48 YEARS, OCC:HOUSEHOLD WORK,
R/O H.No.572/A5,
MAHATESH CHALA SOMAVARPETH,
BAILHONGAL, TAL:BAILHONGAL,
DIST:BELAGAVI. ..APPELLANTS
(BY SRI.H.M.DHARIGOND, ADV.)
AND:
1. GANGAVVA @ SHANTAVVA,
W/O. BHIMAPPA KAVALAPUR
AGE: 46 YEARS,
OCC: AGRICULTURE and HOUSEHOLD WORK
R/O. RAMAPUR SITE, TQ: SAUNDATTI,
DIST: BELGAUM-591123.
2. SHIVANAND S/O. SADEPPA PACHAPUR,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O.ITNAL, TQ: SAUNDATTI,
DIST: BELGAUM-591123.
3. MADIVALAPPA SHIVAPPA PACHAPUR,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O.YAKKUNDI, TQ: SAUNDATTI,
DIST: BELGAUM-591123.
4. SHANKARAPPA S/O.SHIVAPPA PACHAPUR,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O. YAKKUNDI, TQ: SAUNDATTI,
DIST: BELGAUM-591123. ...RESPONDENTS
(BY SRI.SHIVARAJ BALLOLLI, ADV. FOR R1,
SMT.SHAILA BELLIKATTI, ADV. FOR R3 AND R3,
R-2 SERVED)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC, AGAINST
THE JUDGMENT AND DECREE DTD:29.10.2013 PASSED IN
O.S.NO.105/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE,
SAUNDATTI, PARTLY DECREEING THE SUIT FILED FOR PARTITION
AND SEPARATE POSSESSION.
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THIS APPEAL COMING ON FOR FINAL HEARING AND THE
SAME HAVING BEEN HEARD AND RESERVED ON 07.07.2021, THIS
DAY, R.DEVDAS J., DELIVERED THE FOLLOWING:
JUDGMENT
R.DEVDAS J:
This Regular First Appeal is filed by one of the half brothers of the plaintiff, Smt.Gangavva, whose suit for partition and separate possession was decreed in part and the plaintiff was allotted half share in all the suit schedule properties excluding northern 4 acres in Sy.No.28 of Dhupadal village, Saundatti taluk, Belgaum district.
2. For the sake of convenience, the parties shall be referred to as per their ranking before the trial Court.
3. One Ningappa Fakkirappa Paschapur had two wives, Basavva and Parvatavva. Through Basavva, Ningappa had a son, Sadeppa, while through Parvatavva, he had Gangavva, the plaintiff. The relationship is not disputed. Ningappa died on 11.08.1968. After the death of Ningappa, his son, Sadeppa got his name entered in the record of rights, as per M.E.No.1281 in respect of the immovable properties left behind by Ningappa. Under a sale deed dated 08.05.1992, 4 Sadeppa-defendant No.1 purchased 4 acres 7 guntas in Sy.No.230 of Karalakatti village, in the name of his son Shivanand, defendant No.2. It is the contention of the plaintiff that since Sadeppa had no other source of income other than the agricultural income derived from land bearing No.28, which measures 11 acres 15 guntas, the land purchased in Sy.No.230 also belongs to the joint family.
4. On 09.09.2002, defendant No.1 sold 5 acres 32 guntas in Sy.No.28, which is the joint family properties, in favour of defendants 3 and 4, for a valuable sale consideration of `1,28,000/-. It is stated in the recitals of the sale deed that defendant No.1 sold the property since he had to repay the loan taken from PLD Bank and for family necessities, for development of the remaining landed property. The plaintiff contended that out of the income generated from the joint family agricultural properties, defendant No.1 purchased house properties bearing VPC No.234 and 242 during the year 1982-1983. Similarly, the third item of the house property, which is a vacant site, was purchased in the name of defendant No.2.
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5. Defendant No.2 has filed a detailed written statement and defendant No.1 adopted the same. Defendants 3 and 4 also filed separate written statements. It was contended by defendants 1 and 2 that since the plaintiff knew about the sale transaction of the year 2002, the suit was not maintainable since the action was not brought within the period of limitation. It was contended that the plaintiff has admitted in the plaint that although she was married in the year 1976, when she was about 18 years old, even after the marriage, defendant No.1 used to give her share from the income generated from the joint family properties. However, two years prior to the filing of the suit, defendant No.1 stopped giving her share and therefore, that was the cause of action for the plaintiff to file the suit. Defendant No.1 contended that he used to toil hard and since he worked in other's property, he earned sufficient money and he purchased the landed property bearing Sy.No.32 on 04.04.1966 for a consideration of `8,000/-. However, in a family partition, Sy.No.32 was allotted in favour of defendant No.2 and the revenue records were entered in the name of defendant No.2.
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6. Insofar as defendants 3 and 4 are concerned, they have contended that the sale transaction is of the year 2002 and the suit being brought in the year 2011, is hit by the law of limitation and is not maintainable. It is contended that the plaintiff was married in the year 1976 and the revenue records were standing in the name of defendant No.1 consequent to the demise of his father, Ningappa, in the year 1968. Moreover, it is clearly stated in the recitals that defendant No.1 sold a portion of the property for family necessities and to repay the loan at PLD Bank. It was therefore contended that defendants 3 and 4 are bonafide purchasers and their interest should be protected.
7. The trial Court framed the following issues based on the pleadings of the parties:
i) Whether the plaintiff proves the genealogy furnished in the plaint?
ii) Whether plaintiff proves that all the suit schedule properties are joint family properties of plaintiff and defendants?
iii) Whether the plaintiff proves that sale deed dated 9-9-2002 executed by defendant No.2 in favour of defendant No.3 and 4 is null and void?7
iv) Whether the plaintiff is entitled for ½ share in all the suit schedule properties?
v) Whether defendant No.3 and 4 prove that they are the bona-fide purchasers of the property bearing Rs.No.28, measuring 4 acres situated at Yakkundi village of Saundatti taluk for a valuable consideration?
vi) Whether suit is barred by limitation?
vii) Whether the suit is not properly valued for the
purpose of C.F. and jurisdiction and C.F. paid is insufficient?
viii) Whether defendant No. 1 and 2 prove that all the suit schedule properties are self acquired properties of defendant?
ix) Whether the plaintiff is entitled for suit reliefs?
8. On the basis of the evidence on record, both oral as well as documentary, the trial Court came to a conclusion that Ningappa married Parvatavva only after the death of his first wife Basavva and therefore, the marriage of Parvatavva with Ningappa was valid. Therefore, plaintiff, being the legitimate daughter of Ningappa, she was entitled for half share in the suit schedule properties. The claim of defendant No.1 that he used to work in other's properties and he used to earn separate income, was negatived by the trial Court, since no proof of the same was made available. Consequently, the trial Court came to a conclusion that whatever acquisitions 8 were made by defendant No.1 either in his own name or in the name of his son, defendant No.2, were derived out of the joint family income.
9. Insofar as the sale made in favour of defendants 3 and 4 are concerned, the trial Court has come to a conclusion that the claim of the plaintiff that she used to be given her share from the income generated from the joint family property till about 2 years prior to the filing of the suit. However, since the northern portion of 4 acres were sold in favour of defendants 3 and 4 in the year 2002 and the name of defendants 3 and 4 being entered in the revenue records, it would show that the claim of the plaintiff is contrary to the records. For the very same reason, it was also held that the plaintiff was not involved in the development of the agricultural properties as she was away in the husband's house after her marriage. Although, it was noticed by the trial Court in the recitals of the sale deed dated 09.09.2002, it was stated that the sale is being made by defendant No.1 for family necessities to discharge the loan taken from PLD Bank and for development of the other landed properties, the extent 9 of loan taken by defendant No.1 was not forthcoming. However, taking into consideration the long length of time after the sale transaction, namely 9 years from the sale transaction till the date of filing of the suit, the purchasers, defendants 3 and 4 have been cultivating the land and have been enjoying the usufructs thereto. Therefore, the trial Court proceeded to hold that defendants 3 and 4 are bonafide purchasers.
10. As regards the contention of the defendants that the suit is barred by limitation, the trial Court held that the vested right of the plaintiff in the joint family properties were not extinguished without proper severance in accordance with law. The plaintiff, as the daughter acquired coparcenary rights by virtue of the amendment brought to the Hindu Succession Act, 1956 (for short 'the Act'). It was also not established by defendants 1 and 2 that there was prior partition either before the death of their father, Ningappa, or after his death and therefore, the plaintiff continued to exercise coparcenary rights in respect of the suit schedule joint family properties. 10 Consequently, it was held that the suit is not barred by limitation.
11. Since the trial Court found that defendants 3 and 4 are bonafide purchasers of 4 acres of land in Sy.No.28, the suit was decreed in part granting half share in all the suit schedule properties except the northern 4 acres of land in Sy.No.28. Being aggrieved by the judgment and decree passed by the trial Court, defendant No.1, Sadeppa, has filed this Regular First Appeal.
12. During the course of these proceedings, appellant/defendant No.1 passed away. Consequently, the legal representatives are brought on record. Appellants 1(a) to 1(f) are the daughters of Sadeppa, while his only son Shivanand continues as respondent No.2.
13. Learned counsel, Shri H.M.Dharigond, appearing for the appellants would submit that when the plaintiff herself admitted in the plaint that only two years prior to the filing of this suit she was not given her share in the income generated out of the joint family agricultural lands, the trial Court has erred in not accepting the said admission. For the very same 11 reason, it is submitted that if the plaintiff accepted that she was given her share from the income generated from Sy.No.28 which had 11 acres and 15 guntas, it would mean that defendant No.1 had legitimately acquired half share of the income. It is noticeable that Ningappa had admittedly died on 11.08.1968 and defendant No.1 being the only eldest male member of the family, had been cultivating the lands. It is therefore contended that from out of the half share of the income which was legitimately derived by defendant No.1, he has purchased 4 acres 7 guntas of land in Sy.No.230 of Karalakatti village, under a sale deed dated 08.05.1992, in the name of his son. defendant No.2. Similarly, defendant No.1 and defendant No.2 have acquired the three items of house properties in the year 1982-1983.
14. The learned counsel would further contend that the sale transaction made by defendant No.1 in favour of defendants 3 and 4, is dated 09.09.2002. It is pointed out from the proviso to Section 6 (1) of the Act, that the amendment brought to the Act with effect from 09.09.2005 specifically provided that the amendment shall not affect or invalidate any disposition or alienation which was made prior 12 to 20.12.2004. In that view of the matter, the sale made by defendant No.1 in favour of defendants 3 and 4 could not be questioned by the plaintiff.
15. Learned counsel Shri Shivaraj Ballolli, on behalf of respondent No.1/plaintiff submits that Section 6 of the Act, is not applicable to the facts and circumstances of this case. On the other hand, Section 8 of the Act is applicable since item No.1 of the suit schedule properties i.e., Sy.No.28 is the property of Shri Ningappa and after his demise, his property should devolve in terms of the general rules provided under Section 8 of the Act.
16. We have heard the learned counsels and have perused the trial Court records. We find two important aspects in the impugned judgment, which may require consideration.
17. Before adverting to those two aspects, it would be necessary to deal with the submissions of the learned counsel for respondent No.1/plaintiff that Item No.1 of the suit schedule properties which was the only property left behind by 13 the propositus Ningappa, according to the pleadings, is the self-acquired property of Ningappa. In the plaint as well as the deposition of the plaintiff as PW-1, she has herself stated that Sy.No.28 was a joint family property and after the death of Ningappa, defendant No.1 cultivated the lands as Kartha of the joint family. In fact, in the cross-examination of DW-1, a suggestion has been put on behalf of the plaintiff that Sy.No.28 was an ancestral property and it devolved on Ningappa through his ancestors. To that suggestion, DW-1 has admitted that Sy.No.28 is an ancestral property. Therefore, it is not right on the part of the learned counsel for respondent No.1/plaintiff to now contend that Sy.No.28 is not ancestral property but it is a separate property in the hands of Ningappa. Learned counsel had further contended that even if it was an ancestral property, when once it devolved on Ningappa, he took it as a separate property, is not tenable.
18. The learned counsel had placed reliance on some of the judgments of the Hon'ble Supreme Court including COMMISSIONER OF WEALTH TAX, KANPUR VS.
CHANDER SEN AND OTHERS reported in (AIR 1986 SC 14 1753) and a judgment of a learned Single Judge of this Court in the case of MALLIKA VS. CHANDRAPPA reported in ILR 2007 KAR 3216 and two other judgments. In the case of CHANDER SEN (supra), the Hon'ble Supreme Court held that subsequent to the Act and in view of Section 4 of the Act which provides a overriding effect of the provisions of the Act over all interpretation of Hindu Law, its text, its Rule or any custom or usage as part of that law in force immediately before the commencement of the Act and that such Rule and interpretation shall cease to have effect with respect to any matter for which provision is made under the Act. Therefore, Section 8 will prevail over the earlier uncodified rule and its interpretation in the matter of the devolution of the property of a male Hindu, dying intestate. It was therefore held that since Section 8 when read with the Schedule, includes son and does not include son's son, at a partition when a son takes his share, he takes it as a separate property and not as the Kartha of his own undivided family. However, it has to be noticed that these decisions were rendered while considering the assessment of income and application of income tax provisions as to whether income or asset which a son inherits 15 from his father when separated by partition could be assessed as income of Hindu undivided family of son or whether it would be his individual income. On the other hand, the Hon'ble Supreme Court in a latest decision, in the case of SHYAM NARAYAN PRASAD Vs KRISHNA PRASAD reported in 2018 (7) SCC 646, has reiterated that property inherited by a male Hindu from his father, father's father or father's father's father, is an ancestral property. It was held that according to Mitakshara law, the sons, grandsons and great grandsons of the person who inherits it, acquire interest and rights attached to such property at the moment of their birth. After partition, property in the hands of a son continues to be ancestral property and son of that son takes interest in it and is entitled to it by survivorship. Therefore, it is obvious that the submission of the learned counsel for respondent No.1/plaintiff that the provisions of Section 8 is applicable in this case and not Section 6, is to overcome the proviso under Section 6 (1) of the Act, which saves all alienations made prior to 20.12.2004. However, this argument will not apply to the facts of the present case since admittedly, after the death of Ningappa, there has been no partition of the property 16 belonging to Ningappa and therefore, neither the plaintiff nor defendant No.1 can claim to have taken the property as his or her separate property.
19. Now, coming to the two important aspects as noticed earlier, firstly, when the plaintiff admitted in the plaint that defendant No.1, the only son of Ningappa and step brother of the plaintiff who was cultivating Sy.No.28 along with his son, defendant No.2, regularly gave her share of the income generated, this important admission could not have been ignored by the trial Court. We have noticed that Ningappa, the propositus died on 11.08.1968. Admittedly, the plaintiff was married at the age of 18 years which would approximately be in the year 1976. Right from the year 1969, if defendants 1 and 2 have cultivated the land and enjoyed half of the income generated from Sy.No.28, which is the only joint family property left behind by Ningappa, it was possible for defendants 1 and 2 to purchase other items of immovable property from out of the income derived by them. Therefore, if defendant No. 1 has purchased 4 acres and 7 guntas in Sy.No.230, residential properties bearing VPC 17 No.242 and 1093/A and open space bearing VPC No.234, the same is required to be believed and accepted.
20. Secondly, in view of the express proviso to Section 6 (1) of the Act, 1956, when the amended provisions came into effect from 09.09.2005, clearly saving the dispositions and alienations which took place prior to 20.12.2004, the sale transaction made by defendant No.1 in favour of defendants 3 and 4 is clearly saved. Even otherwise, the trial Court having recorded a finding that the sale transaction made by defendants 3 and 4 is bonafide and the plaintiff having accepted the said finding and not preferring any appeal, the portion of the property measuring 4 acres, sold in favour of defendants 3 and 4 is not available for partition.
21. Consequently, we are of the opinion that the finding of the trial Court that the plaintiff is entitled for half share in all the suit schedule properties, except the northern 4 acres of land in Sy.No.28 sold in favour of defendants 3 and 4, requires to be modified. The plaintiff is entitled for half share in Item No.1 of the suit schedule properties i.e., Sy.No.28 measuring 7 acres and 15 guntas of Dhupadal village 18 and nothing more. The impugned judgment and decree passed by the trial Court is accordingly modified. The appeal is allowed in part.
Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE Jm/-