Karnataka High Court
Fakirappa Siddappa Halagatti vs Smt.Siddavva D/O Lakshappa Halagatti on 18 April, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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RSA No. 100424 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 100424 OF 2019 (PAR-)
BETWEEN:
1. FAKIRAPPA SIDDAPPA HALAGATTI
AGE: 48 YEARS,
OCC: AGRICULTURE,
R/O: BELLIKHINDI,
TQ: BADAMI,
DIST: BAGALKOTE-591102.
2. BASAPPA SIDDAPPA HALAGATTI
AGE: 58 YEARS,
OCC: AGRICULTURE,
R/O: BELLIKHINDI,
TQ: BADAMI,
DIST: BAGALKOTE-591102.
3. SANAPPA @ SANGAPPA SIDDAPPA HALAGATTI
AGE: 59 YEARS,
Digitally OCC: AGRICULTURE,
signed by
SHIVAKUMAR
HIREMATH
SHIVAKUMAR Location:
R/O: BELLIKHINDI,
HIREMATH Dharwad
Date:
2022.04.23
TQ: BADAMI,
09:01:47
+0530
DIST: BAGALKOTE-591102.
4. KENCHAPPA SIDDAPPA HALAGATTI
AGE: 61 YEARS,
OCC: AGRICULTURE,
R/O: BELLIKHINDI,
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RSA No. 100424 of 2019
TQ: BADAMI,
DIST: BAGALKOTE-591102.
5. SMT.SIDDAVVA
W/O SIDDALINGAPPA MULLUR
AGE: 64 YEARS,
OCC: HOUSEHOLD,
R/O: BELLIKHINDI,
TQ: BADAMI,
DIST: BAGALKOTE-591102.
...APPELLANTS
(BY SRI. B. V. SOMAPUR, ADVOCATE)
AND:
SMT.SIDDAVVA,
D/O LAKSHAPPA HALAGATTI
(SINCE DECEASED BY HER LRS
RESPONDENTS NO.2 TO 4 AND 6)
1. SMT.RANGAVVA,
W/O VITTAL APPANAVAR
AGE: 47 YEARS,
OCC: HOUSEHOLD,
R/O: HAVALKOD,
TQ: BADAMI,
DIST: BAGALKOTE-591102.
2. SMT.YELLAVVA
W/O PANDAPPA KADRIGUDDA
AGE: 42 YEARS,
OCC: HOUSEHOLD,
R/O: KALLAPUR,
TQ: BADAMI,
DIST: BAGALKOTE-591102.
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RSA No. 100424 of 2019
3. SMT.CHINNAVVA @ NEELAVVA
W/O SIDDAPPA BICHAGATTI
AGE: 40 YEARS,
OCC: HOUSEHOLD,
R/O: KHANAPUR,
TQ: BADAMI,
DIST: BAGALKOTE-591102.
4. SMT.NEELAVVA
W/O SIDDAPPA HALAGATTI
AGE: 80 YEARS,
OCC: HOUSEHOLD,
R/O: BELLIKHINDI,
TQ: BADAMI,
DIST: BAGALKOTE-591102.
5. SHIVAPPA @ SHIVANAPPA LAXMAPPA HALAGATTI
AGE: 39 YEARS,
OCC: AGRICULTURE,
R/O: BELLIKHINDI,
TQ: BADAMI,
DIST: BAGALKOTE-591102.
...RESPONDENTS
(BY SRI. K. L. PATIL, ADVOCATE FOR R1 TO R3;
R4 AND R5 ARE SERVED)
THIS RSA FILED U/SEC.100 OF CPC, AGAINST THE
IMPUGNED JUDGMENT AND DECREE PASSED BY THE LEARNED
PRINCIPAL DISTRICT AND SESSIONS JUDGE, BAGALKOT IN
R.A. NO. 45/2012 DATED 27.03.2019 AND 02/04/2019
RESPECTIVELY AND ALSO JUDGMENT AND DECREE PASSED BY
THE LEARNED SENIOR CIVIL JUDGE BADAMI IN
O.S.NO.24/2010 DATED 28.03.2012 AND 07.04.2012
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RSA No. 100424 of 2019
RESPECTIVELY MAY PLEASE BE SET ASIDE AND THE SUIT BE
DISMISSED BY ALLOWING THIS APPEAL WITH COST AND ETC.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
JUDGMENT
1. The appellants are before this Court seeking for the following reliefs:
a) The impugned Judgment and Decree passed by the learned Prl. Dist. and Sessions Judge, Bagalkot in R.A. No. 45/2012 dated 27.03.2019 and 02/04/2019 respectively and also Judgment and Decree passed by the learned Senior Civil Judge Badami in O.S.No.24/2010 dated 28.03.2012 and 07.04/2012 respectively may please be set aside and the suit be dismissed by allowing this appeal with cost.
b) Any other reliefs as this Hon'ble Court deems fit under the circumstances of the case be granted to the appellants/defendants No.2 to 6 in the interest of justice and equity.
2. O.S.No.24/2010 had been filed by the respondents No.1 to 4 herein seeking for partition and separate possession of their share in the suit schedule properties on the ground that the said properties are joint family/ancestral properties. The written statement was filed in the suit contending that a partition had been effected among the defendants on 23.11.1978 and the partition has been given effect to -5- RSA No. 100424 of 2019 and therefore the suit under Section 6 of The Hindu Succession Act was not maintainable. The trial Court rejected the said contention. The appellants filed R.A.No.45/2012 which also came to be dismissed confirming the judgment and decree of the trial Court. It is aggrieved by the same that the appellants are before this Court.
3. Sri. B. V. Somapur, learned counsel for the appellants submits that both the trial Court and the 1st Appellate Court have given a complete go-by to the partition effected in the year 1978 which has been given effect to and mutation entries have been made in pursuance thereof. He submits that this fact has not been taken into account by the trial Court and the 1st Appellate Court not doing so has resulted in injustice to the petitioners and as such this Court ought to exercise its power and set-aside the judgment of both the trial Court and the 1st Appellate Court.
-6- RSA No. 100424 of 20194. Per-contra, Sri. K.L.Patil, learned counsel for respondents No.1 to 3 would submit that the issues which have been raised by the appellants are one on facts and there is no substantial question of law that has been put forth by the appellants in the present second appeal. The facts as regards whether there was a partition on 23.11.1978, whether it has been given effect to or not has been considered both by the trial Court and the 1st Appellate Court and the said fact cannot be now re-appreciated by this Court in a regular second appeal.
5. In rejoinder, Sri. B. V. Somapur, learned counsel for the appellants would submit that the proper and adequate stamp duty has been paid on the partition deed of the year 1978 which is produced along with I.A.No.1/2021 being an application under Order XLI Rule 27 of CPC and if the same were to be looked into, it would be clear that the stamp duty has in fact been paid and therefore the same would have to be -7- RSA No. 100424 of 2019 taken into account by this Court, mere non-
registration cannot be a ground to disbelieve partition.
6. Heard Sri. B. V. Somapur, learned counsel for the appellants, Sri. K. L. Patil, learned counsel for respondents No.1 to 3 and perused papers.
7. The trial Court on the basis of the pleadings had framed the following issues:
i) Whether the plaintiffs proves that suit properties are joint family ancestral properties of themselves and defendants?
ii) Whether the plaintiffs proves that they have got any share in the suit properties? If so; what is their share?
iii) Whether the defendants No.1, 2, 5 & 6 prove that a partition has already been taken place on 23.11.1978 as averred in their W.S para No.11?
iv) Is suit not maintainable?
v) Are plaintiffs entitled for the suit relief as sought for?
vi) To what order or decree?
8. One of the issues which had been framed at issue No. (iii) was whether the defendants prove that a partition has already taken place on 23.11.1978 as alleged in the written statement at para No.11. The trial Court had been taken up issue No. (i) and (iii) together for consideration and came to a conclusion -8- RSA No. 100424 of 2019 and has given a finding that there was no such partition that had occurred by holding that no registered partition deed has been produced to satisfy the requirements of Section 6 of Hindu Succession Act.
9. The 1st Appellate Court in R.A.No.45/2012 had framed the following points for determination:
"On the basis of above narrated facts and pleadings of parties, the following points arise for determination of the Court.
1. Whether the appellants/defendants prove that the lower court has committed serious error in holding that Suit schedule properties of plaintiffs and defendants?
2. Whether the appellants/defendants prove that the lower court has committed serious error in holding that partition dated 23.11.1978 has not been proved by the defendants?
3. Whether interference of this Court is required?
4. What order?"
10. The 2nd point framed was as regards whether the trial Court had committed an error in holding that the partition dated 23.11.1978 has not been proved by the defendants. The 1st Appellate Court after going through the evidence on record and re-appreciating to same came to a conclusion that it was for the defendants in the suit and appellants therein to -9- RSA No. 100424 of 2019 establish that there was a partition which has been effected, which has not been done and as such the first Appellate court disbelieving the averments made dismissed the First Appeal.
11. Thus from the above, it is clear that both the trial Court and the 1st Appellate Court by appreciating and re-appreciating the evidence respectively have held that there is no partition that has been proved by the defendants. This issue is one of fact and cannot be an issue that could be again raised before in a regular second appeal. It is only a substantial question of law which could be raised in a regular second appeal. Section 6 of the Hindu Succession Act reads as under:
6. Devolution of interest in coparcenary property.
--
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
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RSA No. 100424 of 2019(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub- section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,--
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-
deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre- deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre- deceased daughter, as the case may be. Explanation. --For the purposes of this sub- section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death,
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RSA No. 100424 of 2019irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or great- grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub- section shall affect--
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation. --For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great- grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.
Explanation. --For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.] "6A. Equal rights to daugher in co-parcenary property.-- Notwithstanding anything contained in section 6 of this Act--
(a) in a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and
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RSA No. 100424 of 2019have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;
(b) at a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:
Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter:
Provided further that the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;
(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;
(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990.
6B. Interest to devolve by survivorship on death.--When a female Hindu dies after the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990, having at the time of her death an interest in a Mitakshara co-parcenary property, her interest in the property shall devolve by survivorship upon the surviving members of the co-parcenary and not in accordance with this Act:
Provided that if the deceased had left any child or child of a pre-deceased child, the interest of the deceased in the Mitakshara co-parcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
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Explanation.--(1) For the purposes of this section the interest of female Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death, irrespective of whether she was entitled to claim partition or not. (2) Nothing contained in the proviso to this section shall be construed as enabling a person who, before the death of the deceased had separated himself or herself from the co-parcenary, or any of his or her heirs to claim on intestacy a share in the interest referred to therein.
6C. Preferential right to acquire property in certain cases.--(1) Where, after the commencement of Hindu Succession (Karnataka Amendment) Act, 1990 an interest in any immovable property of an intestate or in any business carried on by him or her, whether solely or in conjunction with others devolves under sections 6A or 6B upon two or more heirs and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. (2) The consideration for which any interest in the property of the deceased may be transferred under sub- section (1) shall, in the absence of any agreement between the parties, be determined by the court, on application, being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incidental to the application.
(3) If there are two or more heirs proposing to acquire any interest under, this section, that heir who offers the highest consideration for the transfer shall be preferred. Explanation.--In this section 'Court' means the court within the limits of whose jurisdiction the immoveable property is situate or the business is carried on, and includes any other court which the State Government may by notification in the official Gazette specify in this behalf.]
12. A perusal thereof would indicate that only the production of a registered partition deed or
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RSA No. 100424 of 2019document of alienation would negate a claim for partition under section 6 of the Act.
13. In the present case what has been contended is only that a partition has been effected between the parties which had been stamped, admittedly it is not registered.
14. A perusal of the document which has been produced along with I.A.No.1/2021 indicates that the stamping has been effected on 30.04.2019 on an application filed by the appellants herein. They having made payment of a sum of Rs.1,500/- on the said documents as stamp duty on the application being allowed. It is therefore clear that as on the date on which the partition deed was allegedly executed, it neither bore the adequate stamp nor was it registered.
15. In view thereof, the contention now urged that, it was properly stamped and partition was given effect
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RSA No. 100424 of 2019to cannot be sustained. The submission now made that the said partition deed had been properly stamped is contrary to a document on record, which indicates that the stamp duty was paid on 30.04.2019, in my considered opinion this is nothing but an abuse of the process of Court.
16. The contention urged that the said document was not available when evidence was lead before the trial Court and subsequently was traced, and the deficit stamp duty paid thereon is again in my considered opinion an abuse of the process of the Court.
17. The appellants have deliberately sought to stamp the document to try and make use of it in the present proceedings and contend as if the stamp duty has been paid when the document was executed and therefore the same is required to give effect to. This being deliberate act on part of the appellants necessary costs would have to be imposed for having abused the process of this Court.
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RSA No. 100424 of 201918. As observed above, the trial Court and the 1st Appellate Court have come to a categorical conclusion that the defendants therein and the appellants herein have not been able to establish partition as on 23.11.1978. There being no substantial question of law which has been put forth in the present appeal. The appeal is liable to be dismissed. Hence, I pass the following:
ORDER
i) Appeal is dismissed at the admission stage itself.
ii) The cost of Rs.3,000/- is imposed for having abused the process of this Court, the said cost to be remitted to the Advocates' Library Fund within a period of 15 days from today.
iii) Consideration of I.A.No.1/2021 would not serve any purpose since the document has been subsequently stamped which as observed above is an abuse of the process
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of this Court. Hence, I.A.No.1/2021 stands dismissed and on account of the dismissal of the appeal, all pending IAs stand disposed.
Sd/-
JUDGE RH