Karnataka High Court
Sadappa S/O Mallappa Kubakaddi vs Basavva W/O Sharanappa Pyati Ors on 20 January, 2012
Bench: N.Kumar, Ashok B Hinchigeri
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 20i DAY OP JANUARY 2012
PRESENT
THE HONBLE MRJUSTICE N.KUMAR
AND
THE HON'BLE MR. .JUSTICE ASHOK B. HINCHIGERI
R.F.A. NO.5015/2011
BETWEEN:
1. Sadappa S/o Mallappa Kubakaddi
Age: 50 years, 0cc: Agriculture,
R/o Muttagi, Tc
: B. Bagewadi.
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Dist: Bijapur- 586108. ... APPELLANT
( By Sri D.P. Ambekar. Adx'.
AND
1. Basavva W/o Sharanappa Pyati
Age: 62 years. 0cc: House Hold,
R/o Muttagi. Tq: B. Bagcwadi.
Dist: Bijapur- 586108.
2. Shantawwa W/ o Maralingappa Pvat i
Age: 60 years. 0cc: House Hold,
R/o Muttagi, Now at Nagur,
Tq: B. Bagewadi, Dist: Bijapur- 5H6108.
3. Sulagavva W/o Basavanthappa
Sabarad, Age: 59 years. 0cc: House Hold,
R/o Mullagi. Now At. Agasahal.
Tq: B. Bagewadi,
Dist: Bijapur- 58610$.
4. Shavavva © Shantavva W/o Chandappa
Age: 55 years. 0cc: House Hold,
R/o Muttagi, Now at nagur,
Tq: B. Bagewadi.
Dist: Bijapur- 586108. RESPONDENTS
...
(By Sri: Ashok Kiriagi, Adv.)
THIS RF.A. IS FILED U/S 96 R/W OR. 41 RULE
I OF CPC AGAINST THE JUI)GMENT AND DECREE
DT. 10.03.2010 PASSED IN OS NO: 18/2009 ON THE
FILE OF THE SENIOR CIVIL JUDGE AT BASAVANA
BAGEWADI WHEREIN, DECREEING THE SUIT OF THE
PLAINTIFFS.
This appeal is coming on for Orders this day.
N.KUMAR J., delivered the following
JUI)GMENT
1. This is defendants appeal challenging the
judgement and decree of the trial court which has
decreed the suit of the plaintiffs crai1tin 1/81 share to
each of the parties to the suit.
2. For the purpose of convenience, the parties arc
referred to as they are referred to in the original suit.
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3. The subject matter of the suit consists of 03
items of landed property and one item of house
property, all situated in Muttagi village, Taluk Basavana
Bagewadi, Bijapur district. The plaintiffs are the sisters
of defendant. Prepositus is one Sadappa who has two
wives. Gangawwa and Sharanavva. The plaintiffs and
the defendant are their children. The case of the
plaintiffs is that. all the plaint schedule properties are
the ancestral joint family properties. After the death of
their father and mother, by virtue of amendment to the
Hindu Succession Act in the year 2005 by Act No.
39/2005, they are entitled to equal share In the
schedule property with the defendant. When the
defendant declined to grant their legitimate share they
have ified the suit for partition and separate possession.
4. After service of summons the defendant entered
appearance and contested the claim, lie contended that
the plaintiffs and defendant do not constitute a Hindu
undivided family. All the schedule properties do not
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belong to Hindu undivided family. However, they have
admitted the relationship. Sy.No. 64 is a property
standing In the name of Gangawwa. first wife of
Sadappa. After her death the mutation was made in the
name of the defendant. Therefore, he became the
absolute owner of the said property. All the plaint
schedule properties are coparcener properties. The 1'
defendant is sole coparcener as all the plaintiffs were
born prior to 1956 and as they were all married prior to
1994. They have no right, title, interest in the plaint
schedule properties. Therefore, the amendment to the
Hindu Succession Act in 2005 is not attracted to
schedule properties. Therefore, the suit ified by them is
on the basis that they are the coparceners Is not
maintainable. The valuation is not correct. Court fee
paid is not correct. It is his specific case that his father
died in the year 1982 and their mother also died about
20 years back. During his life time they spent
considerable amount for performing the marrIage of
plaintiffs daughters. The plaintiffs' husbands and their
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family members are all very rich and therefore, the
plaintiffs have relinquished their rights in respect of the
schedule properties by giving a varadi before the
revenue officials, on the basis of which mutation has
been made in the name of defendant. The defendant is
In peaceful possession and enjoyment of those
properties. He Is paying taxes In respect of these lands.
AU the properties are in his exclusive possession. There
is no dispute that exist between plaintiffs and defendant
after plaintiffs relinquished their right in the properties
In 1986, as they have not asserted their right withIn 12
years. He is in possession of the properties for the last
more than 12 years. Therefore, whatever right pleaded
is extinguished by adverse possession. The defendant Is
enjoying the property openly and the same Is within the
knowledge of everyone. Therefore. he has become the
absolute owner. He has spent considerable amount on
Improving of the property. The value of the property has
increased because of his efforts. Under these
circumstances, the suit filed by the plaintiffs is not
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maintainable and they are not entitled to any share
therein. Therefore, he sought for the dismissal the suit.
5. On the aforesaid pleadings. the trial court has
framed as many as 07 issues and an additional issue:
1. Whether the plaintiffs prove that the suit
properties are the joint family properties of the plaintiffs
and defendants?
2. Whether the defendant proves that the plaintiffs
were relinquished their right over the suit properties as
contended by him?
3. Whether the defendant proves that suit of the
plaintiffs is barred by period of limitation?
4. Whether the defendant proves that he has
perfected the title over the suit properties by way of
adverse possession?
5. Whether the defendant proves that this court
has no pecuniary jurisdiction to try this suit?
6. Whether the plaintiffs are entitled for 1 /5th
share as claimed by them?
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7. What order or decree?
Additional issue:
Whether the defendant proves that he Is the sole
coparcener and the plaintiffs are not having right to
claim the share in the suit properties as contended in
para No. 4(1) of W.S.?
6. The plaintiffs In order to substantiate their
claim examined the 1st plaintiff as PW 1 and produced
10 documents, which are marked as Ex.P-1 tb P-b.
Defendant was examined as DW 1 and he also produced
13 documents, which are marked Ex.D- 1 to D- 13.
7. The trial court on the basis of aforesaid oral and
documentary evidence on record held that the plaintiffs
have proved that all the schedule properties are the
Joint family properties of the plaintiffs and defendant.
The defendant has failed to establish his case that the
plaintiffs have relinquished their right over the suit
properties. The defendant has failed to establish that he
Is the sole coparcener and that plaintiffs are not having
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the right to claim a share in the suit properties. The
defendant has failed to prove that the suit is barred by
law of limitation. Defendant has failed to establish that
he has perfected his title over the stilt properties by way
of adverse possession. Defendant has failed to prove
that the trial court has no pecuniary jurisdiction and
therefore, it held that plaintiffs are entitled to 1 / 5th
share each in all the suit schedule properties.
8. Aggrieved by the said judgement of the trial
court, the defendant is in appeal. The learned counsel
for the defendant assailing the Impugned judgement
and decree of the trial court contends that all the
plaintiffs were born prior to coming Into force of Hindu
Succession Act 1956. Therefore, they would not be
entitled to the benefit of amendment to Section 6 of
Hindu Succession Act. Therefore. they cannot be
construed as coparceners as held by the trial court.
Though the trial court accepted the case of defendant
that 1st plaintIff and 2tId plaintiff are born before 1956
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on the basis of school certificates showing the date of
birth, It has held that the plaintIffs No.3 and 4 are born
subsequent to 1956 and that therefore they are
coparceners and consequently granted equal share to
the son as if he is a coparcener which is erroneous. The
plaIntiffs No.3 and 4 have affixed their thumb
Impression and It Is contended that they are Illiterates.
They did not step Into the witness box when there is the
question of their being admitted to school, where date of
birth Is entered and of the Head master issuing a
certificate, which is clearly a case of concoction. which
is unfortunately not noticed by the trial court.
Therefore, he submitted that the findings of the trial
court in this regard are ifiegal and required to be set
aside. Therefore, he submitted that the extent of share
allotted to plaintiffs is erroneous and requires to
interfered with.
9. Per contra the learned counsel for the plaintiffs
submitted that even if the age mentioned in the plaint Is
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taken Into consideration one of the four plaintiff Is born
In 1956 and therefore, to that extent the judgement and
decree of trial court Is correct, unless It is shown that
the 4th plaintIff Is born subsequent to coming Into force
of 1956 Act. No such evidence is adduced and therefore
she Is entitled to 1/5th share. To that extent the
judgement and decree of the trial court cannot be found
fault with.
10. In the light of the aforesaid facts and rival
contentions. the points that arise for our consideration
are:
1) Whether all the plaintiffs were born prior to
1956 Act or subsequent to the said Act so as to
have the benefit of amendment to the
Succession Act In 2005?
2) What Is the share to which each of the parties
are entitled?
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II
11. The material on record dearly establishes that
Sadappa and Mallappa constituted a Hindu Undivided
family and they were coparceners. Item No. 2, 3, 4 are
the ancestral properties belonging to the Joint family.
Whereas item No. 1 belonged to Gangawwa, the first
wife of Sadappa; as it stood in her name, it would be her
Streedhan property. When Sadappa died, Mallappa
became sole surviving coparcener. Mallappa has a son
by name Sadappa. The defendant and plaintiffs are
Maflapp&s son and daughters. When Mallappa died In
1982 Sadappa became sole sun4vlng coparcener. If the
plaintiffs are born prior to 1956, then Section 4 of the
Act made It very clear the coparcener property wifi be
devolve according to Hindu Law and not according to
Hindu Succession Act. Therefore, as the 1956 Act was
held to be prospective and the schedule properties are
all ancestral properties, the plaintiffs born prior to 1956
do not acquire any interest in the coparcenery property.
Therefore, they have no right In the said property.
However, Section 6 of the Act as it Is stood prior to
hz
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amendment made It clear if one of the coparceners dies
leaving behind female heir, then partition will be
effected prior to his death and the property which is to
be allotted to his share shall devolve according to
succession and estate if he has left behind female heir.
Only in the event of his dying without a female heir his
share in the coparcenery property will devolve by
surveyorship. Therefore, when Mallappa died, he left
behind his wife and four daughters i.e., he left behind
female heirs. Therefore, prior to his death if partition
had taken place Mallappa would have got 1/3" share.
His wife Sharanavva would have get 1/3rd share and his
son Sadappa would have got 1/3" share. In Mallapp&s
1/3"' share, the property is inherited in terms of Section
8 of Succession Act between Class-I legal heirs. They
are his wife, son and daughters. Therefore, each of
them is entitled to 1/6" share In 1/3"' share which
would be the share of Mallappa. However, in this case
Sharanavva died in 1989 leaving behind her son and
four daughters, therefore. her 1/3"' share is to be
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distributed among his sons and daughters equally i.e.,
all these five children would get 1/5111 share in 1/3"
share of Sharanavva. In other words, son of Sadappa
would get 1/311 share as coparcener. Another 1/6th
share in 1/3M share of Mallappa and 1/511k share of
Sharanavva whereas his daughters would get 1/6th
share in the share of Mallappa. 1/5" share of Sadappa
and Sharanavva. This would be the share to which each
of them are entitled to, even if the Hindu Succession
Amendment Act is not attracted to the facts of this case.
12. Now coming to the issue of birth of these
daughters. the defendant has specifically contended all
of them are born prior to 1956. In order to substantiate
their contention that they are born subsequent to 1956
Act coming into force, they examined jst plaintiff
Bassavva. She has not produced any document to show
that neither she nor plaintiff No.4 are born subsequent
to 1956 Act coming into force. If we go by the ages
mentioned in the cause title, certainly they were born
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prior to 1956 Act. However, she has produced Ex.P-9
and P- 10 certificates titling caste and birth date Issued
by Head Master of Government Kannada Girls High
School, Mutt agi, Basavana Bagewadi Taluka. Bijapur
District showing the date of bIrth 01 08-1956 and 20-
01-1959. The Head Master Is not examined. This
certificate can only be an extract. It is a certificate
Issued on the basis of register maintained by the school.
Therefore, It cannot be the primary document. This
document Is marked subject to objections. Strangely if
these two daughters were admitted to school as
contended. atleast they would have put their signatures
In Kannada language. But strangely they put their left
thumb Impressions on the plaint. Under these
circumstances the said documents cannot be given
much welghtage. That apart these two daughters have
not stepped Into the witness box to give evIdence about
their date of birth. PW 1 Is not the author of the
document. Author of the document is not examined.
Therefore. notwithstanding the marking of these
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documents Ex.P-9 and P- TO the said documents are not
proved In accordance with law. If we ignore these
documents, no evidence Is adduced to show that these
daughters were born subsequent to 1956 Act coming
Into force. Therefore, In the light of these preponderance
of evidence on record, It Is not possible to hold that
these plaintiffs were born subsequent to 1956 Act. If
they are not born subsequent to 1956 Act and as the
amendment Act No. 39/2005 Is applicable only to the
daughters, who are born subsequent to 1956 Act, they
could not be construed as coparceners. Therefore, the
plaintiffs are not the coparceners along with defendant.
In the coparcenery property, they would not be entitled
to equal share. Therefore, the findings recorded by the
trial court are erroneous, contrary to the material on
record and Inconsistent. In so far as item No. 1 is
concerned. It is the property of Gangavva. the first wife
of Sadappa. She died on 13-05-1978 issueless.
Therefore, the mutation entry was made In the name of
Mallappa and after his death in the name of Sadappa. It
It--..
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Is the Streedhan property of Gangavva and It is not
ancestral property. If It Is Streedhan property, the
plaintiffs and defendant being Class-Il heirs would be
entItled to equal share. Therefore what emerges from
the above said discussion Is;
(1) AU the plaintiffs are born prior to the coming
into force of 1956 Act and therefore, none of
them are coparceners;
(2) In item No. 1 of plaint schedule. Streedhan
property of Gangavva. plaintiffs and defendant
are entitled I.e., 1/5th share each;
(3) In so far as Item No. 2, 3 & 4 are concerned.
which are ancestral properties, the share of
plaintiffs would be 2/15th share each, whereas
defendant would be entitled to 7/15" share.
(4) They would also be entItled to mesne profits
from the date of suit.
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Hence, we pass the following:
ORDER
Appeal is allowed in part. The decree passed by the trial court is modified as under;
(a) The plaintiffs are declared to be not coparceners with the 1 defendant.
(b) The plaintiffs and 1st defendant would be entitled to 1/51 share each in item No. 1 of the plaint schedule property namely Sy.No.64 measuring 04 acres 12 guntas + 01 acre port kharab land.
(c) Plaintiffs each would be entitled to 2 / 1 5W share in item No. 2. 3 & 4 of the plaint schedule properties. whereas defendant would he entitled to 7/ 151u share in item No.
2. 3 & 4 of the plaint schedule properties. 18
(d) Plaintiffs would be entitled to mesne profits from the date of suit.
(e) Parties to bear their own costs.
sdI
3UDGE
Sd/
*MK JUDGE