Karnataka High Court
Ningappa vs Kasturibai And Anr on 2 December, 2021
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 02ND DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
RFA No.200116/2019
BETWEEN
NINGAPPA S/O MUTTAPPA KUMBAR
AGE: 50 YEARS OCC: AGRICULTURE
R/O SALOTAGI VILLAGE TQ:INDI
DIST:VIJAYAPUR
...APPELLANT
(BY SRI D. P. AMBEKAR, ADVOCATE)
AND
1. KASTURIBAI W/O NINGAPPA KUMBAR
BEFORE MARRIAGE KASTURIBAI
D/O MUTTAPPA KUMBAR, AGE: 55 YEARS
OCC: GRIL & HH WORK, R/O KAMANAKATTI
COLONY TALIKOT TQ:MUDDEBIHAL
DIST VIJAYAPUR
2. PARVATHI W/O MALLIKARJUN KUMBAR
AGE: 52 YEARS OCC: HOUSEHOLD WORK
R/O C/O MALIKARJUN KUMBAR TEACHER
SALOTAGI VILAGE, TQ:INDI, DIST: VIJAYAPUR
...RESPONDENTS
(BY SRI AJAYKUMAR A KALAGI, ADVOCATE FOR R1)
2
THIS RFA FILED U/S 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 15.03.2019 PASSED IN
O.S.NO.28/2016 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, INDI, WHEREIN, THE SUIT WAS
DECREED.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed by defendant No.1 under Section 96 of CPC against the judgment and decree dated 15.03.2019 passed in O.S.No.28/2016 on the file of the Senior Civil Judge and JMFC at Indi (for short 'Trial Court).
2. Parties are referred to as per their rankings before the Trial Court.
3. The subject matter of the suit is immovable properties, which are as under:
Sl.No. RS No. Area Assessment Village 1. 78/*/2 02-19 01-27 Salotagi 2. 625/*/3 10-09 14-46 Salotagi 3. 67/1 07-00 02-50 Salotagi
4. It is the case of the plaintiff that the plaintiff and the defendants are the children of one Muttappa and 3 Payakka and that suit schedule properties being the landed properties and house property are the ancestral properties of the plaintiff and the defendants. That their father Muttappa had passed away on 08.08.2001 and their mother Payakka also passed away during the year 2014. It is the case of the plaintiff that during the life time of her parents, there was a partition equally dividing the suit properties amongst the plaintiff and the defendants and thus they were jointly cultivating the land and yielding food grains. That defendant No.1 by misguiding the plaintiff had taken her signature on a blank paper on the pretext of same being required for withdrawal of compensation amount from the KBJNL in respect of the acquired land forming part of suit properties to the extent of 19 guntas. Misusing the signature of the plaintiff on the said document, defendant No.1 alleged to have created documents entitling as relinquishment deed. Though the plaintiff had 1/3rd share in the suit property, the defendant No.1 is not effecting the partition and allotting the share of the plaintiff. That the defendant No.1 is denying the right 4 of the plaintiff based on the alleged relinquishment deed and attempting to alienate the suit properties, thereby constraining the plaintiff to file a suit for partition and separate possession.
5. Upon service of notice, defendant No.1 had appeared before the Trial Court and filed his written statement. Defendant No.2 has adopted the written statement filed by defendant No.1. It is contended by defendant No.1 that the marriage of the plaintiff and defendant No.2 was solemnized about 30 years back and that there was no joint family as such. It was denied that he had created false and fabricated documents and presented before the revenue office for effecting the mutation. It is contended that upon the advice of the elders of the village, he had given six tolas of gold to the plaintiff and defendant No.2 in lieu of their share in the suit properties. Upon such advice, the name of defendant No.1 was mutated in the revenue records and the plaintiff and defendants had jointly given Vardi before the revenue 5 authority for change of records. It is also denied that there was a partition during the life time of father and mother of the plaintiff equally dividing the suit properties allotting their respective share, as contended by the plaintiff. Thus, he contended that there was no question of denial of the right of the plaintiff as she did not have any share in the suit properties.
6. Based on the pleadings of the parties, the Trial Court framed the following issues:
1. Whether plaintiff proves that suit properties are ancestral joint family properties?
2. Whether the plaintiff is entitled to claim partition and separate possession of her 1/6th share in the suit properties?
3. Whether plaintiff further proves that she is entitled for 1/3rd share in the suit properties as claimed?
4. What order or decree?6
Additional issues:
1. Whether the defendant No.1 proves that plaintiffs No.1 and 2 have released and relinquished their right in suit property in favour of defendant No.1 by taking 6 tolas of gold of each from defendant No.1 in lieu of their share in suit property?
2. Whether plaintiff proves that in the family arrangement effected by the father and mother of plaintiff during their lifetime have allotted share to the plaintiff and defendants in al the suit properties equally?
3. Whether plaintiff proves that the defendant No.1 by misguiding the plaintiff has taken signature on the blank papers on the pretext of withdrawing the compensation amount for the KBJNL and created false and fabricated document and presented the same to the revenue authorities?
7. The plaintiff examined herself as PW.1 and exhibited 10 documents marked as Exs.P1 to P10. On behalf of the defendants, defendant Nos.1 and 4 have 7 been examined as DWs.1 and 4 and other two witnesses have been examined as DWs.2 and 3 and exhibited 3 documents marked as Exs.D1 to D3.
8. The Trial Court by the impugned judgment and order decreed the suit with costs by granting the relief of partition, holding that the plaintiff is entitled for 1/3 rd share in the suit properties and house property. Aggrieved by the same, defendant No.1 is before this Court in this appeal.
9. The learned counsel for the appellant/defendant No.1 reiterating the grounds urged in the appeal memorandum submitted that the Trial Court had ignored the admission of the plaintiff in her evidence treating the same as a stray sentence has granted the relief. He submits that the Trial Court has not taken into consideration the relinquishment of share made by the plaintiff. Since the relinquishment deed being between co- sharers and there was no transfer of property for the first time in favour of a party and the same was only a variation 8 of shares, it did not require any registration. It is submitted that the father of the plaintiff and defendants had expired on 08.08.2001, the law applicable as on that date alone must be applied and therefore, the share of the plaintiff has to be calculated as per notional partition and not as per Section 6 of the Hindu Succession Act, which came into force from 09.09.2005. Thus, it is submitted that the appeal be allowed and the judgment and decree of the Trial Court be set aside.
10. On the other hand, the learned counsel for the respondents submits that the issue involved in this appeal is no more res integra. In the light of the judgment of the Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma and Others reported in (2020) 9 SCC 1, the issue with regard to interpretation of Section 6 of the Hindu Succession Act need not be gone into. He submits that admittedly the suit properties are the ancestral properties belonging to one Muttappa Kumbar, the father of the plaintiff and the defendants. After his demise, the 9 plaintiff and defendant No.2 being the daughter and defendant No.1 being the son are entitled for equal share. Further adverting to the issue with regard to the relinquishment deed, he submits that no such relinquishment deed was ever be executed. Therefore, he submits that the defendants cannot claim any right, title and interest in respect of the suit schedule properties to the extent of 1/3rd belonging to the plaintiff without there being any conveyance in the manner known to law. Therefore, he submits that the appellant has not made out any ground for allowing the appeal.
11. Considering the rival submission made by the learned counsel for the parties, the only point that arises for consideration in this appeal is:
Whether the judgment and decree passed by the Trial Court decreeing the suit of the plaintiff requires any interference?
12. The relationship between the parties being the children of late Mutttappa Kumbar and Payakka is not in 10 dispute. The suit schedule properties being the ancestral properties is also not in dispute. It is not the case of the defendants that there was any partition that had taken place at any time prior to filing of the suit. On the other hand, it is the case of the defendants that the plaintiff had purportedly relinquished her share in lieu of receipt of 6 tolas of gold and that upon advice of elders of the village, defendant No.1 had mutated his name in the revenue records. The defendants having set up the theory of relinquishment of share by the plaintiff ought to have discharged the same in the manner known to law. The defendants have produced the order copy of the mutation, the application addressed to the Tahsildar, Indi and copy of Form No.21. Except these documents, they have not produced any other registered deed or document. Even the so called relinquishment deed is also not forthcoming. They have also not produced any evidence with regard to they having given 6 tolas of gold to the plaintiff. Therefore, the said contention/defence raised by the defendants cannot be countenanced.
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13. As regard the arguments pertaining to the death of father of the plaintiff and defendants prior to coming into force of Section 6 of the Hindu Succession Act, the same is no longer res integra in the light of the law laid down by the Apex Court in the case of Vineeta Sharma (Supra).
14. In the above facts and circumstances and aforesaid settled position of law and also in the view of the defendants having failed to establish and prove the relinquishment of share by the plaintiff, the appellant/defendant No.1 has not made out any ground for interference. Therefore, the following:
ORDER The appeal filed by the appellant/defendant No.1 is hereby dismissed.
The judgment and decree passed by the Trial Court in O.S.No.28/2016 is confirmed.
Sd/-
JUDGE Srt