Karnataka High Court
Smt.Laxmi W/O Laxman Kulkarni vs Smt.Girijabai W/O Dattatreya Kulkarni on 13 October, 2020
Author: Ravi.V.Hosmani
Bench: Ravi.V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13 T H DAY OF OCTOBER 2020
PRESENT
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
AND
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
REGULAR FIRST APPEAL No.100360 OF 2018 (PAR)
BETWEEN :
1. SMT.LAXMI W/O LAXMAN KULKARNI,
AGE.31 YEARS, OCC. HOUSEHOLD,
R/O HAMPI, TQ. HOSPETE, DIST. BELLARY,
C/O. M. VIJAYENDRA ACHARYA,
PRAKASH NAGAR, HAMPI-583239,
TQ. HOSPETE, DIST. BALLARI.
2. KUMAR DATTATREYA S/O LAXMAN KULKARNI,
AGE.13 YEARS, OCC. STUDENT,
R/O HAMPI -583239, TQ. HOSPETE,
DIST. BELLARY.
3. KUMARI SRINIDHI S/O LAXMAN KULKARNI,
AGE.10 YEARS, OCC. STUDENT,
R/O HAMPI-583239,
TQ. HOSPETE, DIST. BELLARY,
(THE APPELLANTS NO.2 AND 3 MINORS
REPRESENTED BY THEIR MINOR
GUARDIAN- NATURAL MOTHER I.E.
APPELLANT NO.1).
... APPELLANTS
(BY SRI GOURI SHANKER H.MOT, ADVOCATE)
AND :
1. SMT.GIRIJABAI W/O DATTATREYA KULKARNI,
:2: RFA.No.100360/18
AGE:71 YEARS, OCC: HOUSEHOLD,
R/O GURUVINHALLI,
TQ. KUNDGOL-581212, DIST. DHARWAD.
2. SMT. REKHA W/O RAJU KULKARNI,
AGE.43 YEARS, OCC. HOUSEHOLD,
R/O SHIGGAON (JAYANAGAR)
TQ.SHIGGAON-581205,
DIST. HAVERI.
3. SMT. LAXMI W/O VENKATESH KULKARNI
AGE.40 YEARS, OCC. HOUSEHOLD,
R/O GADAG-BETAGERI-582101,
TQ DIST. GADAG.
4. SRI. BHIMANAGOUDA
S/O DODDAHANUMANTGOUDA PATIL @ MYADGOPPA,
AGE.36 YEARS, OCC. AGRICULTURE,
R/O SAINAGAR ROAD, UNKAL HUBBALLI-580031,
TQ. HUBBALLI, DIST. DHARWAD.
... RESPONDENTS
(BY SRI. ARAVIND D. KULKARNI, ADVOCATE FOR R1-R3)
(BY SRI.MAHESH WODEYAR, ADVOCATE FOR R-4)
THIS R.F.A. IS FILED UNDER SEC. 96 OF CPC., AND
PRAYED TO SET ASIDE THE IMPUGNED JUDGMENT AND
DECREE DTD:23.08.2018 PASSED IN O.S.NO.49/2014 BY THE
COURT OF SENIOR CIVIL JUDGE AND J.M.F.C., KUNDGOL AND
DISMISS THE SUIT OF THE PLAINTIFFS IN O.S.NO.49/2014 IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL IS COMING ON FOR ADMISSION THIS
DAY, N.K.SUDHINDRARAO, J., DELIVERED THE
FOLLOWING :
JUDGMENT
Though this appeal is listed for admission, with consent of both the learned counsel for parties it is taken up for final disposal.
:3: RFA.No.100360/18
2. This appeal is directed against the Judgment and Decree passed in O.S.No.49/2014 dated 23.08.2018 on the file of learned Senior Civil Judge and J.M.F.C, Kundgol, wherein the suit of the plaintiffs came to be decreed with cost and the operative portion of the Judgment is as under :
" The suit of the plaintiffs is decreed with cost.
It is declared that plaintiff No.1 is entitled for 5/16 t h share and plaintiff No.2 and 3 are entitled for 4/16 t h share each in suit properties.
The defendant No.1 to 3 are entitled for 3/16 t h share together in suit properties and sale deed Ex.P.13 is bidding on defendant No.1 to 3.
It is declared that sale deed executed in favour of 4 t h defendant is not binding on the share of plaintiffs.
Ordered accordingly. Draw preliminary decree accordingly ."
3. In order to avoid confusion and overlapping, the parties are addressed in accordance with their rankings before the trial Court.
4. Being aggrieved by the said Judgment and Decree the defendants have come in appeal. The :4: RFA.No.100360/18 substance of the pleadings of the plaintiffs is that one Sri.Govind who was senior most ancestor died. He had two sons by name Dattatreya and Hanumantharao, out of them Hanumantharao died issueless and Dattatreya is the husband of Girijabai, the plaintiff No.1. Mr.Dattatreya died on 26.12.1982. At present, the relationship coming into reckoning for the suit would be family of Dattatreya and the genealogy tree is as under :
GENEALOGY Govind Propositus) Dattatreya Hanumantharao (Died on 26.12.82) Girijabai (wife) plaintiff No.1 Laxman (dead) Rekha @ Rindavva Laxmi @ 06.10.2008 (Plaintiff 2) Kamalabai Laxmi W/o. (Plaintiff 3) Laxman (Def.1) Dattatreya Srinidhi (defendant No.2) (Defendant No.3) :5: RFA.No.100360/18
5. Thus, Laxman, Rekha @ Rindavva and Laxmi @ Kamalabai are the children of Dattatreya, among the said children, Laxman died on 06.10.2008. Thus, the remaining members are, Girijabai being the widow of Dattatreya, Laxman as he is dead is represented by his branch consisting of wife-Laxmi, son Dattatreya and another son Srinidhi. In other words, Laxmi, Dattatreya and Srinidhi are one part, Rekha @ Rindavva daughter of Dattatreya in another part, and Laxmi @ Kamalabai-another daughter of Dattatreya on the other part.
6. Thus, according to plaintiff No.1-Girijabai, the mother, deceased son Laxman survived by his family, Rekha @ Rindavva and Laxmi @ Kamalabai are entitled for 1/4 t h share each in the schedule properties. It is also claimed that the properties belonged to the family are the ancestral joint family properties of the plaintiffs and defendant Nos.1 to 3. The defendants who are nothing but branch of Laxman consisting of Laxmi, Dattatreya and Srinidhi. :6: RFA.No.100360/18
7. The claim of the plaintiffs to the effect that the suit schedule properties are ancestral joint family properties is not disputed. The contention of the defendant Nos.1 to 3 is that Laxman was released from the joint family and it was an oral one and all the suit schedule properties were given to him as a mark of his share in the joint family and the same was really effected in the year 1983. Defendant No.4- Bhimanagouda is stated to be purchaser of portion of Item No.1 in the schedule property bearing Sy.No.29/2 to the extent of four acres of Guruvinahalli village of Kundgol Taluka.
8. The moot point would be whether plaintiffs are entitled for partition of the suit schedule properties in any event.
9. At this juncture, it is necessary to mention that the 1 s t defendant-Smt.Laxmi contended that out of the schedule properties her husband entered into an agreement to sell the said portion of Item No.1 to the defendant No.4 for a cash consideration of :7: RFA.No.100360/18 Rs.6,28,500/- under the Agreement dated 27.08.2008 and at the time of the sale agreement he had received the advance amount towards sale price of Rs.4,00,000/-. Laxman died before the contract would be completed. As such, the obligation to comply with the terms of the sale agreement fell on the 1 s t defendant as the defendant Nos.2 and 3 are the minor children of deceased-Laxman and defendant No.1 filed Guardian and Wards application before the District Court in G and W.C.No.21 of 2009.
10. It is in respect of this proceeding, the learned counsel for the appellants filed application under Order XVI Rule 27 of C.P.C and controversy arose between the parties in the case. Further, in the ends of natural justice the said application deserves to be allowed and documents are considered with reference to their legal effect in this appeal itself.
11. The questions around the matters in controversy as to whether plaintiffs No.1 to 3 are having undivided share in the form of right, title and :8: RFA.No.100360/18 interest over the scheduled properties and regarding the Sale Deed executed by the defendant No.1 in favour of defendant No.4 dated 21.12.2009 in respect of portion of schedule Item No.1.
12. The learned counsel for the appellants Sri.Gouri Shanker S.Mot, would submit that there was no joint family existed among the plaintiffs and the defendants, as Laxman the husband of defendant No.1 got relinquished from the joint family. Learned counsel would emphasize that the said release or relinquishment is an oral one. Thus, the schedule Item Nos.1 to 3 fell to the share of the said Laxman with separate possession and enjoyment without any nexus to the family consisting of the plaintiffs.
13. Learned counsel would further submit that the sale agreement that was executed by deceased- Laxman in favour of defendant No.4 was only to meet harping legal necessities to the family. Even otherwise, after the death of the said Laxman his wife-Laxmi, the defendant No.1 and also as the :9: RFA.No.100360/18 natural guardian of defendant Nos.2 and 3 filed G & W. case stated above seeking permission to sell the portion of Item No.1 in favour of defendant No.4 as there was pre-existing agreement to sell dated 27.08.2008 of the said item of property for a sale consideration of Rs.6,28,500/-, out of which, her husband-Laxman had already received the advance amount of the sale price of Rs.4,00,000/- and the balance amount receivable that was received Rs.2,28,500/-.
14. The learned counsel Sri.Gouri Shanker H. Mot, would submit that filing of G. & W.C. by the defendant No.1 establishes the bonafides and legality of the transaction. Defendant No.4 did not participate in the proceedings before the trial Court. However, he is represented by learned Counsel Sri.Mahesh Wodeyar in this appeal.
15. Learned counsel for the respondent- plaintiffs Sri.Arvind D.Kulkarni would submit that the transactions entered into by the defendant No.1 : 10 : RFA.No.100360/18 or her husband-Laxman son of Dattatreya are totally not binding on the plaintiffs. There was neither legal necessity nor benefit to the estate to compel alienating of properties of the joint family. Further, the plaintiffs were not at all maintained by the 1 s t defendant or her husband during their lifetime. Learned counsel would further submit that the plaintiffs had never authorized the 1 s t defendant to alienate or to encumber any of the schedule properties much less the portion of any item.
16. Learned counsel Sri.Gouri Shanker H.Mot, would submit that the plaintiffs are not entitled for the share in as much as the schedule properties became the exclusive property of Laxman, and after his death, his wife and children forming defendant Nos.1 to 3. He would submit that Laxman was the only male member in the family and was entitled to look after the family and maintain the schedule properties.
: 11 : RFA.No.100360/18
17. Thus, in all probabilities and legalities he was entitled to sell the schedule properties to the defendant No.4 and remaining properties fell to his share.
18. Here, it is necessary to mention the joint family blood relationship among the parties are not disputed. The family being headed by Dattatreya also not disputed. Thus, nature of the suit schedule properties is that they belonged to joint family.
19. It is necessary to mention that the legal effect by virtue of the present legal position laid down by the Hon'ble Supreme Court of India in the case of Vineeta Sharma Vs. Rakesh Sharma and others (2020 (3) KCCR 1983 (SC), if the properties belonged to joint family widow, son and daughters are in. Further, if they are the self acquired properties of the deceased (father) then also they are in. The parameters are almost same, as such, whether the property was purely self acquired property of : 12 : RFA.No.100360/18 Dattatreya or the joint family headed by Dattatreya makes no difference.
20. Learned counsel for the appellants Sri.Gouri Shanker H.Mot, relied upon the Judgment of Hon'ble Supreme Court of India in the case of Rengan Ambalam @ Another v. Sheik Dawood and Others, reported in 2019 AIAR (Civil) 743.
21. The rules of succession of joint family properties in the light of the contention of the parties would be, if entire suit schedule property was given to Mr.Laxman, husband of defendant No.1, in an oral relinquishment or family arrangement during the year 1997, the result would be, there will not be any joint family properties for partition, plaintiffs does not stand to answer legal efficacy.
22. It is incumbent on the part of the counsel for the defendants to produce the materials on behalf of defendants. However, no document for purporting to be family arrangement or relinquishment and in : 13 : RFA.No.100360/18 case it was oral, the circumstances evidencing forfeiting the claim of relinquishment is not produced. No enabling revenue documents produced before the Court to hold that whether any joint family properties to be partitioned between the plaintiffs and the defendants.
23. To a query regarding the quantum of joint family properties and the remaining properties after the allotment of the suit schedule properties through oral relinquishment, it was submitted by learned counsel for the defendant Nos.1 to 3 that there are no remaining joint family properties and the suit schedule properties exclusively fell to the share of deceased-Laxman. As such, there are no properties to be partitioned. In other words, the three items of suit schedule properties are the separate properties of Laxman having got relinquishment deed and no property is capable of being partitioned to be allotted to the plaintiff. In this connection, there does not appear to be equality under equal circumstances. It cannot be forgotten for a while that the equality : 14 : RFA.No.100360/18 under equal circumstances is not maintained, it amounts to inequality.
24. In the family consisting of plaintiff No.1 being the wife of Dattatreya and her two children, defendants No.2 and 3 who are the daughters and that of defendants No.1, 2 and 3 wherein defendant No.1 is the wife of Laxman son of Dattatreya. It is to be noted that both Dattatreya and Laxman are that the plaintiff No.1 is the widow of Dattatreya and defendant No.1 is widow of Laxman. It is not even stated under what circumstances plaintiff No.1 was excluded from managing the joint family because relationship between plaintiff No.1 and defendant No.1 would be that of mother-in-law and daughter-in- law. The division of property in common would be one for each of plaintiffs No.1, 2 and 3 on one hand and defendants No.1, 2 and 3 on another. In other words, 1/4th for plaintiffs No.1, 2 and 3 each and total 1/4th for defendants No.1 to 3. No doubt, defendant No.1 contends that the loans were borrowed five : 15 : RFA.No.100360/18 times by Laxman from the banks stated in Para-12 of the judgment, reason is assigned as under:
"12. Perusal of Ex.D.10 mutation extract No.1730 discloses that husband of defendant No.1 has availed loan of Rs.36,000/- on 18.2.2000 from Co-operative Bank, Kundgol for the purpose of construction of cattle shed. Said loan was borrowed by him prior to his marriage with defendant No.1. Ex.D.11 discloses that late Laxman has mortgaged the suit land for loan of Rs.95,000/- in the year 2004-05. Again said land was mortgaged in favour of Corporation Bank for Rs.1,00,500/-. Late Laxman has repaid the loan of Rs.95,000/-
availed from PLD Bank Kundgol and
Rs.10,000/- Co-operative society of
Guruvinahalli village in the year 2006-07 and it is evident from perusal of Ex.D.13. In the year 2008 Laxman the husband of defendant No.1 was died, consequently names of defendants No.1 to 3 was entered in ROR and mutation of suit land as LRs and it is evident from the perusal of Ex.D.14."
25. Insofar as the portion of schedule Item No.1 is concerned, 4 acres of land was sold to defendant : 16 : RFA.No.100360/18 No.4 for the sale consideration of Rs.6,28,500/- out of which Laxman had received Rs.4,00,000/- during his life and Rs.2,28,000/- was received by defendant No.1. Regard being had to the fact that she was also equipped with the certificate issued by the Court to sell the undivided share of the minor children. In the set of circumstances, there are no documents or the material circumstances to establish that there was earlier partition between Dattatreya or plaintiff No.1 for themselves and on behalf of the family and Laxman, deceased son of plaintiff No.1 and the husband of defendant No.1. As such, excluding suit schedule property from the domain of joint family or the properties of Dattatreya does not arise for a while.
26. The property belonged to Dattatreya are plaint property for himself does not make difference in the circumstances of the case and undivided share of each of plaintiffs No.1 to 3 and defendant No.1 for herself and 2 and 3 shall be intact.
: 17 : RFA.No.100360/18
27. In the overall context and circumstances of the case, learned trial Judge has rightly come to the conclusion recognizing 1/4th share for each of plaintiffs No.1, 2 and 3 and defendant No.1 for herself and her children.
28. Another development would be having got entitled for 1/4th share in the property, the share of Laxman would become further liable for division as the plaintiff No.1 mother Girijabai is nothing but his natural mother of Laxman. As such, upon his death, his share of 1/4th would be divided among class-I legal heirs of the Hindu Succession Act, who are defendant No.1 as widow, children of predeceased i.e. defendants No.1 and 2 and Girijabai, the mother in the ratio of 1/4 t h as class-I heirs.
29. Thus, the learned trial Judge has considered the estate of deceased Laxman to be divided among plaintiff No.1, defendant No.1 and her children.
30. The division of properties arrived at by the learned trial Judge is in accordance with the legal : 18 : RFA.No.100360/18 principles for partition or division of shares. We do not find infirmity, illegality or miscarriage of justice in the judgment and decree. We have no hesitation to confirm the same.
31. This Court confirms in view of the trial Judge insofar as property sold by deceased Laxman through agreement and thereafter sale deed by defendant No.1 be adjusted to the share of Laxman and the question of claiming representation or managership by the defendant No.1-Laxmi does not arise in the facts and circumstances of the case.
Accordingly, the appeal is devoid of merits and rejected.
No order as to costs.
In view of disposal of the appeal, pending interlocutory applications stand disposed off. The application under Order XVI Rule 27 C.P.C. filed by the appellants is allowed and the documents relating : 19 : RFA.No.100360/18 to proceedings regarding G. and W.C.No.21/2009 are considered.
SD/-
JUDGE SD/-
JUDGE Ckk/CLK