Karnataka High Court
Karegowda S/O Gurubasanagowda ... vs Gururaja S/O Dyavanagowda ... on 22 December, 2020
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 22nd day of December 2020
Before
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
R.F.A. No.842 of 2006
Between
1. Karegowda, S/o Gurubasanagowda
Kasheegowdra,
Since deceased by his L.Rs.
1A. Smt. Jayamma,
W/o late Karegoda Kasheegowdra,
Age: 45 years, Occ: Agriculture,
1B. Kumari Chaitra,
D/o late Karegoda Kasheegowdra,
Age: 23 years, Occ: Agriculture,
1C. Kumari Asha,
D/o late Karegoda Kasheegowdra,
Age: 30 years, Occ: Agriculture,
R/o Shidenur, Tq: Byadagi,
Dist: Haveri.
2. Rudrappa, S/o Gurubasanagowda
Kasheegowdra,
Age: 44 years, Occ: Agriculturist,
R/o Shidenur, Tq: Byadagi-581106,
Dist: Haveri.
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3. Ravi, S/o Gurubasanagowda
Kasheegowdra,
Age: 40 years, Occ: Agriculturist,
R/o Shidenur, Tq: Byadagi-581106,
Dist: Haveri. ...Appellants
(By Sri. F.V. Patil, Advocate)
And
1. Gururaja, S/o Dyavangowda
Kasheegowdra,
Age: 10 years, Occ: Student
(Respondent No.1 attained majority and pursuant
to order dated 25.07.2017 his natural guardian
namely respondent no.2 discharged from
guardianship and respondent No.1 is
permitted to contest the case on his own
and in his individual capacity)
2. Smt. Nirmala, W/o Dyavangowda
Kasheegowdra,
Age: 35 years, Occ: Agriculturist,
Both are R/o shidenur,
Now at Benakanakonda,
Tq. Ranebennur,
Dist: Haveri-581115.
3. Dyavanagouda,
S/o Gurubasanagowda Kasheegowdra,
Age: 45 years, Occ: Agriculturist,
R/o Shidenur, Tq. Byadagi-581106.
4. Rudravva,
w/o Shivappa Nagappanavar,
Age: 55 years, Occ: Household work,
R/o Divigihalli, Tq. hirekerur,
Now at Shidenur, Tq: Byadagi-581106.
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5. Shantavva,
W/o Kalaveerappa Karegowdra,
Age: 50 years, Occ: Household work,
R/o Hallu, Tq. Honnali,
Now at Shidenur, Tq: Byadagi-581106.
6. Paravva, w/o Bheemanagowda
Gaddera, Age: 41 years,
Occ: Household work, R/o Shiragambi,
Tq. Hirekerur, Now at Shidenur,
Tq: Byadagi-581106.
7. Prema, D/o Gurubasanagowda
Kasheegowdra, Age: 46 years,
Occ: Household work,
R/o Shidenur, Tq: Byadagi-581106.
8. Neelavva, D/o Gurubasanagowda
Kasheegowdra, Age: 43 years,
Occ: Household work,
R/o Shidenur, Tq: Byadagi-581106.
9. Gowravva, W/o Basavanneppa
Asundi, Age: 62 years,
Occ: Household work,
R/o Shidenur, Tq: Byadagi-581106. ...Respondents
(By Sri. S.N.Banakar, Advocate for R1 and R2
Sri. K.G.Shantappa, Advocate for R2 and R9
Sri. K.V. Hiremath, Advocate for R3 to R8
Sri. M.H.Patil, Sri K.G.Shantappa, Sri
Y.H.Bhanuvalli, Advocates for R2)
This RFA is filed under Section 96 of CPC against
the judgment and decree dated 28.02.2006, in O.S.
No.105/2001 on the file of the Additional Civil Judge (Sr.
Dn.), Ranebennur, decreeing the suit for partition and
separate possession.
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This RFA coming on for Final Hearing this day, the
Court delivered the following:
JUDGMENT
This appeal is filed against the judgment and decree dated 28.02.2006 passed by the Additional Civil Judge (Sr. Dn.), Ranebennur, in O.S. No.105/2011. Defendants No.3, 4 and 5 are in appeal.
2. Plaintiff No.1 is the son and plaintiff No.2 is the wife of defendant No.1. Plaintiffs filed O.S. No.105/2011 for partition and separate possession of their legitimate share in the suit schedule properties contending that the original propositus Gurugubasanagouda Kashigoudar died leaving behind him his wife, four sons and five daughters as his legal heirs. It was further contended that the plaintiffs and defendants are the members of the Hindu undivided joint family and that there was no partition effected between the members of the Hindu undivided joint family. The 5 plaintiffs were constrained to file the suit for partition and separate possession of their legitimate shares in the suit schedule properties, since they were denied legitimate share in the suit schedule properties.
3. The defendants on entering appearance filed written statement denying the averments made in the plaint and contended that partition was effected as per Ex.D.1. It was further contended that the father of plaintiff No.1 and husband of plaintiff No.2 was allotted properties in the said partition effected between the members of the Hindu undivided Joint Family.
4. The Trial Court, in all, framed seven issues and four additional issues and on examining the evidence on record held that the suit schedule properties were joint family properties left behind by the propositus Gurugubasanagouda Kashigoudar. The plaintiffs were allotted 11/210th share each in suit schedule properties. 6 Defendants No.3, 4 and 5 are in appeal challenging the judgment and decree passed by the Trial Court.
5. The learned counsel for the appellants would submit that the Trial Court after recording a finding that the properties bearing Sy. No.221/1 measuring 5 acres 32 guntas situated at Shidenur village, house property bearing V.P.C. No.373 and rick yard bearing V.P.C. No.457 of Shidenur are not brought in the common hotchpotch. Hence, the suit for partial partition is not maintainable. He further submits in the absence of any evidence, the Trial Court has committed an error in treating all the properties as joint family properties instead of self acquired properties of the defendants therein. He submits that there is no pleading as to whether the suit schedule properties are the joint family properties or not. In the absence of any such plea, the Trial Court committed an error in holding that the suit schedule properties are the joint family properties. Defendant Nos.3, 4 and 5 have also filed an application 7 for amendment to amend the written statement to the effect that suit for partial partition is not maintainable for not bringing the properties at Ex.D.28 and Ex.D.29 in the common hotchpotch.
6. Learned counsel for the plaintiffs submits that the application for amendment to amend the written statement at this stage is not maintainable. He further submits that the Trial Court after examining the evidence on record has rightly decreed the suit.
7. I have considered the submissions made by the learned counsel for the parties and perused the material on record.
8. The point that arises for consideration is, Whether the suit for partial partition is maintainable or not?
9. The Trial Court after recording a finding that the properties mentioned in Ex.D.28 and Ex.D.29 are standing in the name of defendant No.1 and also Ex.D.45 8 which pertain to the sale deed executed by defendant No.1 wherein he has alienated three acres in sy.No.221/1 which was allotted to his share in the partition, has held that the suit is maintainable, since the defendants have not taken a plea in the written statement that the suit for partial partition is not maintainable.
10. It is well settled in law that a suit for partial partition is not maintainable. The Trial Court, after recording a finding has committed an error in not directing the plaintiffs therein to include the properties which were not included in the hotchpotch. Even though the question whether the suit for partial partition is maintainable or not, is a question of law, the application filed by defendant Nos.2 to 5 for amendment of the written statement has to be considered by the Trial Court. The judgment and decree passed by the Trial Court decreeing the suit for partition without bringing the properties which are standing in the name of defendant No.1 at Ex.D.28, Ex.D.29 and Ex.D.46, into common 9 hotchpotch is not sustainable in law. The Trial Court after giving an opportunity to the plaintiffs to include the properties which are left out from the hotchpotch is required to dispose of the suit in accordance with law.
Accordingly, the impugned judgment and decree is set aside. The matter is remitted to the Trial Court for re- consideration afresh in accordance with law. All contentions are left open.
The Trial Court is requested to dispose of the suit as expeditiously as possible.
Sd/-
JUDGE Kms