Karnataka High Court
Neelavva @ Babakka vs Leelavati on 22 November, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC-D:13655-DB
RFA No. 100092 of 2015
C/W RFA.CROB No. 100006 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100092 OF 2015 (PAR/POS)
C/W
RFA CROSS OBJ NO. 100006 OF 2015
IN RFA NO. 100092/2015
BETWEEN:
1. NEELAVVA @ BABAKKA
W/O. CHANNABASAPPA PUDAKALAKATTI
SINCE DECEASED BY HER LRS
1.(A) SMT. MAHADEVI W/O. ANNASAB BAGALAKOT,
AGE: 66 YEARS, OCC: HOUSEHOLD WORK,
R/O: MUNAVALLI, TQ: SOUNDATTI, DIST: BELAGAVI
1.(B) SMT. GANGATAYI @ GIRIJA
SAMREEN
AYUB W/O. RAVINDRA TUBACHI,
DESHNUR AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
R/O: YAMAKANAMARADI, TQ: HUKKERI, DIST:
Digitally signed
BELAGAVI.
by SAMREEN
AYUB
DESHNUR 1.(C) SMT. RATNA W/O. SHIVASHANKAR AMMANAGI,
Date:
2023.12.06 AGE: 62 YEARS, OCC: HOUSEHOLD WORK,
11:22:38 +0530
R/O: RAMATHIRT NAGAR,
NEAR MILK DIARY BELAGAVI.
1.(D) KALLAPPA S/O. CHANNABASAPPA PUDAKALAKATTI,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: UPPINA BETAGERI, TQ:DIST: DHARWAD.
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NC: 2023:KHC-D:13655-DB
RFA No. 100092 of 2015
C/W RFA.CROB No. 100006 of 2015
1.(E) SMT. VIJAYA W/O. MALLIKARJUN GADAG,
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O: MAHANTESH NAGAR, BELAGAVI.
1.(F) SHRISHAIL
S/O. CHANNABASAPPA PUDAKALAKATTI,
AGE: 56 YEARS, OCC: PRIVATE SERVICE,
R/O: HANUMAN NAGAR, BELAGAVI.
2. SMT. PREMA W/O. KALAPPA VANI
SINCE DECEASED BY HER LRS
2.(A) RAJU S/O. KALLAPPA VANI,
AGE: 59 YEARS, OCC: BUSINESS,
R/O: ADISHAKTI NAGAR,
MADIHAL, DHARWAD.
2.(B) SMT. NIRMALA W/O. ISHWAR ANGADI,
AGE: 48 YEARS, OCC: HOUSEWORK,
R/O: 2ND CROSS, RAMATIRTH NAGAR,
BELAGAVI.
2.(C) SMT. VIDYA W/O. MAHESH KUDACHI,
AGE: 45 YEARS, OCC: HOUSEWORK,
R/O: STATE BANK COLONY, MUDHOL,
DIST: BAGALKOT.
3. SMT. SHANTA
W/O. GURUPADAPPA KAULAPURE
AGE: 71 YEARS, OCC: HOUSEHOLD WORK,
R/O: MIG/4 HOUSING BOARD COLONY,
RAJEEVGANDI NAGAR,
CHIKKODI, DIST: BELGAUM-591201
4. SMT. GIRIJA
W/O. SURESH HEDDURSHETTI
AGE: 59 YEARS, OCC: HOUSEHOLD WORK
R/O: PLOT NO.100, RUKMINI NAGAR,
KANABARAGI ROAD, DIST: BELGAUM-590001
5. SMT. KALAVATI
W/O. SHIVAYOGI PATTANASHETTI
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NC: 2023:KHC-D:13655-DB
RFA No. 100092 of 2015
C/W RFA.CROB No. 100006 of 2015
AGE: 57 YEARS, OCC: HOUSEHOLD WORK
R/O: PATTANASHETTI ONI, BADAMI,
TQ: BADAMI, DIST: BAGALKOT-587201.
...APPELLANTS
(BY SRI. G.S. SAVADATTI, ADVOCATE)
AND:
1. LEELAVATI W/O. ISHWARAPPA KALADAGI,
AGE: 75 YEARS, OCC: HOUSEHOLD WORK,
R/O: PLOT NO.6, 2ND FLOOR,
GOVARDAN APARTMENT, MARUTI LAYOUT,
NAGARA BHAVI ROAD, BANGALORE-560072.
2. SMT. VEENA W/O. MUKUND BAMBURE,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: R.R. NO.29, NISARGA CITY,
OPP. HOTEL AMBIENCE, NEAR KALEWADI,
PATA WAKAD, PUNE-57-411991.
3. SMT. SHAILA W/O. ASHOK MAHAJAN,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: ASHOK NIVAS, H.NO.144, HOSPITAL ROAD,
SANGLI, DIST: SANGALI,
MAHARASHTRA STATE-416416.
4. SMT. VIBHA W/O.NAGAPPA PUDAKALAKATTI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: C/O. BASAVARAJ BOREKAR,
NEAR VENKATESH TEMPLE,
UDAY NAGAR, SADHANAKERI,
DHARWAD-580008.
5. SMT. SANGEETA W/O. KITTU NAIK,
AGE: MAJOR, OCC: ADVOCATE,
R/O: KASHBI K.K. COLONY,
JALANAGAR, BIJAPUR, DIST: BIJAPUR-586101.
6. MAHANTESH S/O. ISHWARAPPA KALADAGI
AGE: MAJOR, OCC: SERVICE,
R/O: PLOT NO.6, 2ND FLOOR,
GOVARDAN APARTMENT,
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NC: 2023:KHC-D:13655-DB
RFA No. 100092 of 2015
C/W RFA.CROB No. 100006 of 2015
MARUTI LAYOUT, NAGAR BHAVI ROAD,
BANGALORE - 560072.
7. SHIVAMURTI
S/O. MAHADEVAPPA KALADAGI,
AGE: 68 YEARS, OCC: RETD. PERSON,
R/O: HOUSE NO.56, ADARSH COLONY,
SHAHPURI SATARA, TQ: SATARA, DIST: SATARA
MAHARASHTRA STATE.
8. SMT. MAHADEVI S/O. SHIVAMURTI KALADAGI
AGE: 69 YEARS,, OCC: HOUSEHOLD WORK
R/O: HOUSE NO.56, ADARSH COLONY,
SHAHPURI SATARA,
TQ: SATARA, DIST: SATARA
MAHARASHTRA STATE.
9. SHASHIDHAR S/O. SHIVAMURTI KALADAGI
AGE: 41 YEARS, OCC: PRIVATE JOB,
R/O: HOUSE NO.56, ADARSH COLONY,
SHAHPURI SATARA,
TQ: SATARA, DIST: SATARA
MAHARASHTRA STATE - 415002.
10. GANGADHAR S/O. SHIVAMURTI KALADAGI
AGE: 39 YEARS, OCC: PRIVATE JOB,
R/O: HOUSE NO.56, ADARSH COLONY,
SHAHPURI SATARA, TQ: SATARA, DIST: SATARA
MAHARASHTRA STATE - 415002.
11. SMT. VIDYA W/O. MAHANTESH DHAVAN
AGE: 38 YEARS, OCC: HOUSEHOLD WORK
R/O: HOUSE NO.56, ADARSH COLONY,
SHAHPURI SATARA, TQ: SATARA, DIST: SATARA
MAHARASHTRA STATE - 415002.
12. ASHOK S/O. MAHADEVAPPA KALADAGI
AGE: 63 YEARS, OCC: RETD. PERSON,
R/O: KALADAGI ONI, SAUNDATTI,
DIST:BELGAUM-591126.
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NC: 2023:KHC-D:13655-DB
RFA No. 100092 of 2015
C/W RFA.CROB No. 100006 of 2015
13. SUBHAS S/O. MAHADEVAPPA KALADAGI
AGE: 61 YEARS, OCC: SERVICE,
R/O: TAPOVAN NAGAR, NEHARU NAGAR,
HALIYAL ROAD, DHARWAD - 580008.
14. MALLIKARJUN S/O. MAHADEVAPPA KALADAGI
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O: KALADAGO ONI, SAUNDATTI,
DIST: BELGAUM - 591126.
15. JITENDRA S/O. NEMICHAND CHOPRA
AGE: 44 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O: SAUNDATTI, SAUNDATTI,
DIST: BELGAUM. - 591126.
...RESPONDENTS
(BY SRI. PRASHANT HOSAMANI, ADVOCATE FOR R1 TO R3, R5,
R6;
NOTICE SERVED TO R8 TO R11 AND R14;
R4 IS HELD SUFFICIENT;
R7 IS DECEASED LRS ARE ALREADY ON RECORD;
SRI LAXMAN T. MANTAGANI ADVOCATE FOR R12;
SRI HANAMANTH R. LATUR, ADVOCATE FOR R13;
SRI MURUGENDRA WANTMURI, ADVOCATE FOR R15)
THIS REGULAR FIRST APPEAL IS FILED U/S.96 OF THE
CPC., PRAYING TO SET ASIDE THE JUDGMENT & DECREE
DATED:20.12.2014, PASSED IN OS.NO.57/2010, ON THE FILE
OF SENIOR CIVIL JUDGE, SAUNDATTI, AND MODIFY THE
SHARES OF THE PLAINTIFFS AS EACH PLAINTIFF IS ENTITLED
FOR 1/10TH SHARE IN SUIT SCHEDULE PROPERTIES, IN THE
INTEREST OF JUSTICE AND EQUITY.
IN RFA CROB.NO.100006 OF 2015
BETWEEN:
ASHOK MAHADEVAPPA KALADAGI
AGE:63 YEARS OCC:AGRL.,
R/O: KALADAGI ONI, SAVADATTI
TQ:SAVADATTI, DIST:BELAGAVI-5911236.
...CROSS OBJECTOR
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NC: 2023:KHC-D:13655-DB
RFA No. 100092 of 2015
C/W RFA.CROB No. 100006 of 2015
(BY SRI. LAXMAN T. MANTAGANI, ADVOCATE)
AND:
1. SMT.NEELAVVA @ BABAKKA
W/O. CHANNABASAPPA PUDAKALAKATTI
AGE:81 YEARS, OCC:HOUSEHOLD WORK,
R/O: UPPINA BETAGERI
TQ:DIST:DHARWAD-581206.
2. SMT.PREMA W/O. KALAPPA VANI
AGE: 76 YEARS, OCC: HOUSEHOLD WORK
R/O: NANDI KOLGUDI ONI,
MANGALWARPETH, DIST:DHARWAD-580001.
2.(A) RAJU S/O. KALLAPPA VANI,
AGE: 59 YEARS, OCC: BUSINESS,
R/O: ADISHAKTI NAGAR, MADIHAL,
DIST: DHARWAD-580001.
2.(B) NIRMAL W/O. ISHWAR ANGADI,
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O: 2ND CROSS RAMATIRTH NAGAR,
DIST: BELAGAVI-590001.
2.(C) VIDYA W/O. MAHESH KUDACHI,
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O: STATE BANK COLONY MUDHOL,
DIST: BELAGAVI-587313.
3. SMT. SHANTA W/O. GURUPADAPPA KAULAPURE
AGE: 65 YEARS, OCC: HOUSEHOLD WORK
R/O: MIG/4 HOUSING BOARD COLONY,
RAJEEVGANDI NAGAR,
CHIKKODI, DIST: BELAGAVI-591201.
4. SMT.GIRIJA W/O. SURESH HEDDURSHETTI
AGE: 59 YEARS, OCC: HOUSEHOLD WORK
R/O: PLOT NO.100, RUKMINI NAGAR,
KANABARAGI ROAD, DIST: BELAGAVI-590001.
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NC: 2023:KHC-D:13655-DB
RFA No. 100092 of 2015
C/W RFA.CROB No. 100006 of 2015
5. SMT.KALAVATI
W/O. SHIVAYOGI PATTANASHETTI
AGE: 57 YEARS, OCC: HOUSEHOLD WORK
R/O: PATTANASHETTI ONI, BADAMI,
TQ: BADAMI, DIST: BAGALKOT-587201.
6. SMT.LEELAVATI W/O.ISHWARAPPA KALADAGI
AGE: 75 YEARS, OCC: HOUSEHOLD WORK,
R/O: PLOT NO.6, 2ND FLOOR
GOVARDAN APARTMENT, MARUTI LAYOUT,
NAGARA BHAVI ROAD, BENGALURU-560072.
7. SMT. VEENA W/O.MUKUND BAMBURE
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: R.R. NO.29, NISARYA CITY,
OPP. HOTEL AMBIENCE, NEAR KALEWADI,
PATA WAKAD, PUNE-57-411001.
8. SMT. SHAILA W/O.ASHOK MAHAJAN
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: ASHOK NIVAS, H.NO.144, HOSPITAL ROAD,
SANGLI, DIST: SANGALI
MAHARASHTRA STATE-416416.
9. SMT. VIBHA W/O.NAGAPPA PUDAKALAKATTI
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: C/O. BASAVARAJ BOREKAR
NEAR VENKATESH TEMPLE,
UDAY NAGAR, SADHANAKERI,
DHARWAD-580008.
10. SMT. SANGEETA W/O.KITTU NAIK
AGE: MAJOR, OCC: ADVOCATE,
R/O: KASHBI K.K. COLONY,
JALANAGAR, VIJAYPUR,
DIST: VIJAYPUR-586101.
11. MAHANTESH S/O.ISHWARAPPA KALADAGI
AGE: MAJOR, OCC: SERVICE,
R/O: PLOT NO.6, 2ND FLOOR,
GOVARDAN APARTMENT, MARUTI LAYOUT,
NAGAR BHAVI ROAD, BANGALORE - 560072.
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NC: 2023:KHC-D:13655-DB
RFA No. 100092 of 2015
C/W RFA.CROB No. 100006 of 2015
SHIVAMURTI S/O.MAHADEVAPPA KALADAGI
SINCE DECEASED BY HER LRS
12. SMT. MAHADEVI S/O. SHIVAMURTI KALADAGI
AGE: 69 YEARS, OCC: HOUSEHOLD WORK
R/O: HOUSE NO.56, ADARSH COLONY,
SHAHPURI SATARA, TQ: SATARA,
DIST: SATARA, MAHARASHTRA STATE.
13. SHASHIDHAR S/O. SHIVAMURTI KALADAGI
AGE: 41 YEARS, OCC: PRIVATE JOB,
R/O: HOUSE NO.56, ADARSH COLONY,
SHAHPURI SATARA, TQ: SATARA, DIST: SATARA
MAHARASHTRA STATE - 415002.
14. GANGADHAR S/O. SHIVAMURTI KALADAGI
AGE: 39 YEARS, OCC: PRIVATE JOB,
R/O: HOUSE NO.56, ADARSH COLONY,
SHAHPURI SATARA, TQ: SATARA, DIST: SATARA
MAHARASHTRA STATE - 415002.
15. SMT. VIDYA W/O. MAHANTESH DHAVAN
AGE: 38 YEARS, OCC: HOUSEHOLD WORK
R/O: HOUSE NO.56, ADARSH COLONY,
SHAHPURI SATARA,
TQ: SATARA, DIST: SATARA
MAHARASHTRA STATE - 415002.
16. SUBHAS S/O. MAHADEVAPPA KALADAGI
AGE: 61 YEARS, OCC: SERVICE,
R/O: TAPOVAN NAGAR,
NEHARU NAGAR, HALIYAL ROAD,
DHARWAD - 580008.
17. MALLIKARJUN S/O. MAHADEVAPPA KALADAGI
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O: KALADAGO ONI, SAUNDATTI,
DIST: BELGAUM. - 591126.
18. JITENDRA S/O. NEMICHAND CHOPRA
AGE: 44 YEARS,
OCC: AGRICULTURE AND BUSINESS,
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NC: 2023:KHC-D:13655-DB
RFA No. 100092 of 2015
C/W RFA.CROB No. 100006 of 2015
R/O: SAUNDATTI, SAUNDATTI,
DIST: BELGAUM. - 591126.
...RESPONDENTS
(BY SRI. G.S. SAVADATTI, ADVOCATE FOR R1, R3 TO R5 AND
TAKE NOTICE TO R2 (A TO C);
SRI. PRASHANT S. HOSAMANI, ADVOCATE FOR R6;
SRI. HANAMANTH R. LATUR, ADVOCATE FOR R16;
NOTICE SERVED TO R7, R8, R9, R10 TO R15, R17 AND R18)
THIS RFA CROSS OBJECTION FILED UNDER 41 RULE 22
OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 20-12-2014 PASSED BUY THE COURT OF SENIOR CIVIL
JUDGE SAVADATTI IN O.S.NO.57/2010 AND ALLOW THE
CROSS OBJECTION FILED BY THE RESPONDENT NO. 8 IN RFA
NO. 100092/2015 BY DISMISSING THE RFA NO. 100092/2015
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL AND CROSS OBJECTION, COMING ON FOR
FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and also the counsel appearing for the respondent.
2. The factual matrix o the case of the plaintiffs before the trial Court is that, the plaintiffs are the daughters of Mahadevappa and defendants are sons of the said Mahadevappa and also the legal heirs of sons of Mahadevappa. They sought for the relief of partition and separate possession contending that the suit properties are joint family and ancestral properties of plaintiffs and defendants.
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NC: 2023:KHC-D:13655-DB RFA No. 100092 of 2015 C/W RFA.CROB No. 100006 of 2015
3. It is also the contention of the plaintiffs that the signatures are obtained on the blank papers and on the basis of the said signatures, created the said signed blank papers into consent letters by practicing fraud on the plaintiffs and got entered only their names to the suit properties. It is contended that the plaintiffs are entitled for 1/10th share in the suit schedule properties.
4. The defendant appeared and filed written statement and contended that there was previous partition in the year 1956 and the mutation is also effected as per ME No.7542 dated 14.12.1956. Defendant No.5 took the contention that she is absolute owner of the property bearing Sy.No.616 of Saundatti measuring 3 acres 23 guntas and also the contended that she is entitled for a share in the house property inter se with defendant no.6. The defendant No.8 took contention that plaintiffs 1 to 3 relinquished their rights in the suit schedule properties.
5. The trial Court taking note of the pleadings of the parties, framed the issues. On defendant No.8 taken the contention that the Sy.No.27/5 measuring 1 acre is his self
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NC: 2023:KHC-D:13655-DB RFA No. 100092 of 2015 C/W RFA.CROB No. 100006 of 2015 acquired property, an additional issue is framed and allowed the parties to lead evidence to substantiate their contentions.
6. The trial Court having considered both oral and documentary evidence of PWs.1 and 2 and the evidence of DW.1 to DW.6 and Exhibits P.1 to P.23 and D.1 to D.24 comes to the conclusion that suit schedule properties are ancestral properties and answered issue No.1 in the affirmative and also comes to the conclusion that the plaintiff no.1 is entitled to 1/66th share, plaintiff nos.2 to 5 are entitled for a 9/528th share each in the schedule properties. Further, the contentions which have been taken by the defendants are negatived by the trial Court. Further, the trial Court has come to the conclusion that 5th defendant is entitled to house properties inter se with defendant no.6 and answered the same in partly affirmative.
7. Being aggrieved by the judgment and decree of the trial Court, the present appeal is filed by the plaintiff no. 1 and their legal heirs i.e. plaintiff nos. 3 to 5.
8. Defendant No.8 has also filed RFA.Crob.No.100006/15 being aggrieved by the judgment of the trial Court in coming to
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NC: 2023:KHC-D:13655-DB RFA No. 100092 of 2015 C/W RFA.CROB No. 100006 of 2015 the conclusion that defendant no.8 that the properties are his self acquired properties.
9. The main contention urged in the appeal is that, the trial Court committed an error in apportioning the share instead of 1/10th share each, committed an error in considering only notional share and the very approach of the trial Court is erroneous.
10. Per contra, the counsel for respondent would vehemently contend that specific defence was taken in the written statement that plaintiffs have relinquished their rights in the suit schedule properties and also defendant No.5 took specific defence that he is absolute owner of the property bearing Sy.No.616 measuring 3 acres 23 guntas and also defendant No.8 specifically contended that Sy.No.27/5 measuring 1 acre is his self acquired property, but, the trial Court committed an error in not accepting the case of defendant nos. 5 and 8 and erroneously granted the decree in respect of the suit schedule properties and hence question of modifying the judgment and decree as 1/10th share does not arise.
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NC: 2023:KHC-D:13655-DB RFA No. 100092 of 2015 C/W RFA.CROB No. 100006 of 2015
11. The very impugned judgment and decree passed by the trial Court is erroneous when the plaintiffs have relinquished their rights and also the counsel would submit that already there was an earlier partition vide document ME No.7542 dated 14.12.1956 which clearly discloses that already there was a partition.
12. The counsel for the respondent in support of his submission relied upon the judgment of this Court reported in 2023 (3) KCCR 2566 in the case of Shekhar vs. Manikappa wherein this Court has held that, when the entry in the mutation register ipso facto amounts to a partition, the Court should take note of the aspect that the parties have acted upon or not and held that the mutation entries cannot be a proof of partition. Hence, the judgment is aptly applicable. This Court held that mutation entries cannot be proved as proof of partition is an erroneous approach and hence prayed this Court to dismiss the suit.
13. Having heard the appellant's counsel and the counsel for the respondents and also having perused the material available on record, the points that arises for consideration of this Court are;
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NC: 2023:KHC-D:13655-DB RFA No. 100092 of 2015 C/W RFA.CROB No. 100006 of 2015
1. Whether the trial Court committed an error in decreeing the suit in part instead of granting 1/10th share as claimed in the plaint?
2. Whether the trial Court committed an error in not considering the defence which have been taken by the different defendants claiming that some of the properties are their self acquired properties and also when the plaintiffs have relinquished their right, they are not entitled for any share?
3. What order?
Point for consideration in RFA.CROB 100006/2015:
Whether the Cross objector made out the ground to allow the same and grant the relief as sought in the RFA.Crob.
14. Having heard the respective counsel and also on perusal of material and considering the material available on record, it is not in dispute that appellants are children of one Mahadevappa but, the very claim of the defendants that plaintiffs have relinquished their right and accordingly mutation entry is made in the revenue records in terms of Ex.D1 and when the document itself discloses that properties are mutated
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NC: 2023:KHC-D:13655-DB RFA No. 100092 of 2015 C/W RFA.CROB No. 100006 of 2015 based on Ex.D1, question of granting once again partition in favour of the plaintiffs does not arise.
15. Having heard the submission of counsel for both the parties, we have given our anxious consideration to Ex.D1 and the same is only a report and no other document is placed before the Court to show that the plaintiffs are parties for the said document. In order to prove the factum of relationship or right, no such document is placed before this Court.
16. Defendants are respondents. They rely upon documents Ex.D2 and D3. On perusal of Ex.D3 which is letter addressed to the Tahsildar relinquishing the right by the mother and no legal document is placed before the Court. When such being the case and when the contention is taken that the plaintiffs have relinquished their right in respect of immovable properties, there must be legal document with regard to relinquishment of their right in respect of immovable properties. Based on the mutation entries in terms of Ex.D1 which is a self-styled document at the instance of defendants, if any entries are made, same cannot be a ground to come to the
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NC: 2023:KHC-D:13655-DB RFA No. 100092 of 2015 C/W RFA.CROB No. 100006 of 2015 conclusion that already there is partition and they have relinquished their right in respect of suit schedule properties.
17. The defendant no.8 also took the specific ground in the RFA.Crob.100006/2015 that trial Court has committed an error in coming to the conclusion that there was no oral partition and not giving proper reasons to issue nos. 4 and 9 wherein defendant no.8 i.e. cross-objector specifically contended that geneology is partly admitted and denied to the effect that defendant no.1 and respondent no.1 is wife of deceased Eshwar and subsequently contended that description of the property is not described with the boundaries. In the absence of specific boundaries and description suit was filed. Taking note of though rightly comes to the conclusion that entries are made with the consent of the plaintiffs has erroneously comes to the conclusion that there is possibility of obtaining signature for the purpose of entering the names of the defendants. The very approach of the trial Court is erroneous. Hence the judgment and decree of the trial Court has to be set aside and RFA.Crob requires to be dismissed.
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NC: 2023:KHC-D:13655-DB RFA No. 100092 of 2015 C/W RFA.CROB No. 100006 of 2015
18. Having considered the grounds urged in the cross- objection and looking into the material available on record, no doubt there is mention in the mutation that same has been considered in view of the consent of the plaintiffs but, we have already pointed out that when the parties are belonging to the same family and based on the signatures of the plaintiffs, in a document for getting transfer, the property transferred in favour of the defendants and the same will not take away the right of the plaintiffs and also trial Court has rightly observed that defendants might have obtained the signatures that will not create any right unless the right is created, legal point that the defendant by obtaining any document and mere transfer of the names in the revenue entries will not take away the right of the plaintiffs.
19. The other contention that the trial Court committed an error in decreeing the suit allotting share of 12/66th and defendants 7 to 10 to get equal share of 1/66th share of Murigevva and 1/66th share of Murigevva made into eight parts is an erroneous approach. Such contention cannot be accepted in view of the fact that this Court has come to the conclusion
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NC: 2023:KHC-D:13655-DB RFA No. 100092 of 2015 C/W RFA.CROB No. 100006 of 2015 that there was no earlier partition and in the absence of any proof of earlier partition, the daughters are also entitled for equal share as that of son as co-parceners.
20. In view of the above, we do not find any ground to accept the contention of defendant no.8 that trial Court committed an error in not considering the earlier partition and also ME 7542 DATED 14.12.1956 cannot be accepted and hence, there is no merit in the cross-objection and answered the point accordingly.
21. The trial Court having considered the material available on record, in paragraph No.34 of the Judgment, considering the facts of the suit and considering the documents and having discussed, negatived the contentions of the defendants while granting the shares, comes to a conclusion that the amendment is prospective in nature and thereby conferred the right of the daughters as co-parceners from the year 2005, it is also observed that, succession in the present case is open in the year 1976, therefore, as per Section 6(b) of Hindu Succession Act, 1956 the coparceners are entitled to succeed and the right of a coparcener shall devolve by the rules
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NC: 2023:KHC-D:13655-DB RFA No. 100092 of 2015 C/W RFA.CROB No. 100006 of 2015 of the succession contemplated under Section 8 of the Act. To regulate succession under Section 8, right and interest of coparcener has to be ascertained under Section 6 Explanation
1.
22. Having considered the reasons given by the trial Court, it is evident that the date of death of the father is in the year 1976. Certainly, the court has to take note whether there was partition as contended by the defendants and their contention that there was a oral partition and also relinquishment of right of the plaintiffs, we have given our anxious consideration with regard to the said contention and the same has not been substantiated by the defendants. When there was no partition, and only D1 the report whereby they got entries made in the Mutation Register vide ME 9239 and also Ex.D2 where plaintiffs are not parties to the said documents and also no legal document with regard to relinquishment of right also executed. There was no partition prior to the filing of the suit and legal relinquishment. Thus, the contention of the appellants cannot be sustained. This appeal is of the year 2015, subsequent to the amendment, the date of death of the father of coparcener is not relevant. The Hon'ble
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NC: 2023:KHC-D:13655-DB RFA No. 100092 of 2015 C/W RFA.CROB No. 100006 of 2015 Apex Court has made it clear in the recent judgment in Vineeta Sharma vs. Rakesh Sharma reported in (2020) 9 SCC 1 wherein it is categorically held that the provisions contained in the substituted Section of 6 of Hindu Succession confer the status of the coparcener on the daughter before or after the amendment in the same manner as the son with the same joint family liabilities. Therefore, since the right in the coparcenery is by birth. It is not necessary that the father of the female coparcener should be alive on the date when the amendment was brought into effect. Further held that statutory fiction of the notional partition created by the proviso to Section 6 of the Hindu Succession Act, was only for the purpose of ascertaining the share of the deceased coparcener when he was survived by a female heir. Therefore, the Hon'ble Apex Court held that the concept of notional partition is no more applicable. Thus, in the absence of any public document, except the ME Entries, no such self-styled documents transferring property in the name of defendant takes away the rights of the parties.
23. Hence, we do not find any substance in the contention of the defendants and when the daughters are also
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NC: 2023:KHC-D:13655-DB RFA No. 100092 of 2015 C/W RFA.CROB No. 100006 of 2015 copareners equally that of a son in view of recent judgment, in the absence of any documentary proof of relinquishment of their right and they are also legal heirs of said Mahadevappa and they are equally entitled for a share as claimed in the plaint to the extent of 1/10th share.
24. Thus, the Judgment and decree of the trial Court is required to be modified. Hence, we answer the points framed in the affirmative.
In view of discussion made above, we pass the following:
ORDER
(i) The appeal is allowed.
(ii) Judgment and Decree of the trial Court is modified by granting 1/10th share each in favour of the plaintiffs.
(iii) RFA.Cross-objection 100006/2015 is dismissed.
Sd/-
JUDGE Sd/-
JUDGE SK/LIST NO.: 1 SL NO.: 29