Karnataka High Court
Sri Ghulappa Alais Ghaleppa Naikar S/O ... vs Smt. Sabawwa Alias Shobha W/O Babu Naik ... on 28 November, 2024
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NC: 2024:KHC-D:17446
RSA No. 100149 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA. 100149 OF 2023 (PAR/POS)
BETWEEN:
SRI. GHULAPPA @ GHALEPPA NAIKAR,
S/O. HANAMAPPA NAIKAR,
AGE: 61 YEARS, OCC. AGRICULTURIST,
R/O. SHIVPETI, RAMADURG,
RAMADURGA-591123.
... APPELLANT
(BY SRI.P.S.TADAPATRI FOR SRI.K.L.PATIL, ADVOCATES)
AND:
SMT. SABAWWA @ SHOBHA W/O. BABU NAIK,
Digitally
SINCE DECEASED BY HER L.Rs.,
signed by
VISHAL
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.12.19
10:39:27
+0530
1. SRI BABUNAIK S/O. SHIVANAIK NAIK @ PATIL,
AGE: 65 YEARS, OCC. AGRICULTURIST,
R/O. GHODAGERI, TQ. HUKKERI-591309.
2. SRI. SHIVANAIK S/O. BABUNAIK NAIK @ PATIL,
AGE: 36 YEARS, OCC. AGRICULTURIST,
R/O. GHODAGERI, TQ. HUKKERI-591309.
3. SRI. DAYANAIK S/O. BABUNAIK NAIK @ PATIL,
AGE: 33 YEARS, OCC. AGRICULTURIST,
R/O. GHODAGERI, TQ. HUKKERI-591309.
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NC: 2024:KHC-D:17446
RSA No. 100149 of 2023
4. SRI. UDAY S/O. BABUNAIK NAIK @ PATIL,
AGE: 30 YEARS, OCC. AGRICULTURIST,
R/O. GHODAGERI, TQ. HUKKERI-591309.
5. SRI. SHASHIKANT S/O. BABUNAIK @ PATIL,
AGE: 27 YEARS, OCC. AGRICULTURIST,
R/O. GHODAGERI, TQ. HUKKERI-591309.
6. SRI. VISHAL S/O. BABUNAIK NAIK @ PATIL,
AGE: 23 YEARS, OCC. AGRICULTURIST,
R/O. GHODAGERI, TQ. HUKKERI-591309.
7. SMT. HEMAWATI W/O. RAJENDRA NAIK @ PATIL,
AGE: 28 YEARS, OCC. AGRICULTURIST,
R/O. GHODAGERI, TQ. HUKKERI-591309.
8. KUMARI VARSHA D/O. BABUNAIK NAIK @ PATIL,
AGE: 20 YEARS, OCC. AGRICULTURIST,
R/O. GHODAGERI, TQ. HUKKERI-591309.
... RESPONDENTS
(BY SRI. C.S.SHETTAR, ADVOCATE FOR R1 TO R8)
THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 07.12.2019 PASSED
IN R.A.NO.284/2016 ON THE FILE OF THE XII
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BELAGAVI, SITTING AT GOKAK, DISMISSING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
19.09.2016 PASSED IN O.S. NO.23/2012 ON THE FILE OF
THE PRINCIPAL SENIOR CIVIL JUDGE, GOKAK, AT GOKAK,
PARTLY DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
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NC: 2024:KHC-D:17446
RSA No. 100149 of 2023
ORAL JUDGMENT
This appeal is listed for admission and after framing substantial questions of law, with the consent of both the counsels, matter is taken up for final disposal.
2. Defendant is before this Court in this regular second appeal assailing the judgment and decree dated 07.12.2019 in R.A. No.284/2016 on the file of the XII Addl. District & Sessions Judge, Belagavi, sitting at Gokak (hereinafter referred to as the 'First Appellate Court', for short) confirming the judgment and decree in O.S. No.23/2012 dated 19.09.2016 on the file of the Prl. Senior Civil Judge, Gokak (hereinafter referred to as the 'trial Court', for short).
3. This Court today framed the following substantial questions of law which read as under;
(i) Whether the Courts below were justified in granting share to the plaintiff in share of Rangappa in respect of the suit Item Nos.1 and 2 properties when undisputedly the deceased Rangappa has relinquished his share in suit Item -4- NC: 2024:KHC-D:17446 RSA No. 100149 of 2023 Nos.1 and 2 under registered relinquishment dated dated 17.06.1974?
(ii) Whether the Courts below were justified in granting share to the plaintiff in Item No.3 house property when the undisputed relinquishment deed dated 17.06.1974 indicates that the entire Item No.3 was of the ownership of Rangappa and he has relinquished the suit property in favour of the defendant?
(iii) Whether the quantification of shares arrived by the Courts below needs to be modified in respect of Item Nos.1 and 2 in light of the decision of the Hon'ble Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma & Others1?"
4. Heard Sri.P.S.Tadapatri, learned counsel appearing for the appellant and Sri.C.S.Shettar, learned counsel appearing for respondents on the substantial questions of law.
5. The family genealogy of the plaintiff and defendant is culled out as under:
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(2020) 9 SCC 1 -5- NC: 2024:KHC-D:17446 RSA No. 100149 of 2023 Ramachandra Rangappa Hanamappa Ghulappa(Def.) Sabawwa (Plnf.) Regarding 2nd Substantial Question of Law:-
6. The relationship between the plaintiff and defendant is not disputed. It is also not in dispute that Rangappa the brother of Hanamappa, died issueless, and it is not in dispute that Rangappa had executed registered relinquishment deed dated 17.06.1974 in favour of defendant-Ghulappa relinquishing his right of ½ share in the suit lands Item Nos.1 and 2 and the entire house property i.e.,Item No.3. The registered relinquishment deed is marked as Ex.P6. The Courts below failed to consider that under Ex.P6 the recitals clearly indicated that Rangappa has relinquished his ½ share in the suit properties Item No. 1 and Item No. 2, and the entire Item No.3 in favour of the defendant. The trial Court while -6- NC: 2024:KHC-D:17446 RSA No. 100149 of 2023 answering the Issue Nos.2 to 5 at para No.10(i) has held as under:
"(i) In the present suit the plaintiff has claimed half share in the suit landed properties as well as suit house property. But it is pertinent to note that the plaintiff herself has admitted in her pleading itself that her paternal uncle Rangappa had relinquished his right title and interest over undivided half share in the suit properties in favour of the defendant. As I have already observed, Ex.P6 goes to show that the said Rangappa had released his right over half share in suit item Nos.1 and 2 in favour of the defendant. Therefore, the plaintiff cannot claim any share in the said half share of Rangappa which released is in favour of the defendant. On the other hand, she is only entitled for a share in the remaining half share of her father Hanamappa.
However since the suit house property is not the subject matter of the release deed in question. Plaintiff can claim her legitimate share in the entire extent of the said house property."
Emphasis Supplied
7. In light of the undisputed fact that relinquishment deed by Rangappa in favour of the defendant, categorically in uneviqucale terms states that ½ share in Item Nos.1 and 2 and entire Item No.3, granting of share in Item No.3 - the suit house to the plaintiff was not justified and accordingly, the substantial question of law No.2 is answered in favour of the -7- NC: 2024:KHC-D:17446 RSA No. 100149 of 2023 defendant holding that the plaintiff is not entitled for share in Item No.3 of the suit properties.
Regarding 1st and 3rd Substantial Questions of Law:-
8. 1st and 3rd substantial questions of law are taken up together to avoid repetition of facts.
9. The trial Court while holding that under Ex.P6 the deceased Rangappa has relinquished his ½ share over the suit Item Nos.1 and 2 and the plaintiff cannot claim partition in the ½ share of Rangappa, that she is entitled in the remaining ½ share of her father Hanamappa, quantifies the share based on notional partition and holds that the plaintiff is entitled for 1/6th share in Item Nos.1 and 2 of the suit properties and 1/3rd share in Item No.3 of the house property and the defendant is entitled to 5/6th share in Item Nos.1 and 2 of the suit properties and 2/3rd share in Item No.3 of suit property, which is affirmed by the First Appellate Court -8- NC: 2024:KHC-D:17446 RSA No. 100149 of 2023
10. Following the 2005 amendment, daughters are recognized as coparceners by birth in the coparcenary property. The law is well settled in light of the decision of the Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma & Others2 that the daughters are the coparceners and entitled for equal share with that of a son. Taking into consideration, the ½ share in Item Nos.1 and 2 and entire Item No.3 the absolute property of Rangappa is been relinquished by Rangappa under relinquishment deed dated 17.06.2024 in favour of the plaintiff, the plaintiff is the absolute owner to the extent of ½ share in Item Nos.1 and 2 and entire Item No.3, in the ½ share of Hanamappa, the plaintiff and defendant are entitled equally, and thus, the plaintiff is entitled for 1/4th share and the defendant is entitled for 3/4th share in the suit property Item Nos.1 and 2, the plaintiff is not entitled for any share in Item No.3, accordingly the substantial questions of law Nos.1 and 3 are answered and this Court pass the following:
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(2020) 9 SCC 1 -9- NC: 2024:KHC-D:17446 RSA No. 100149 of 2023 ORDER
(i) The regular second appeal is allowed.
(ii) The judgment and decree of the Courts below are set aside.
(iii) Suit for partition and separate possession is decreed in part, plaintiff is entitled for 1/4th share and the defendant is entitled for 3/4th share in the suit Item Nos.1 and 2, plaintiff is not entitled for share in suit Item no 3.
(iv) Suit Item No.3 is held to be the absolute property of the defendant.
(v) Registry to draw the decree accordingly.
SD/-
_____________________ (JUSTICE K.S.HEMALEKHA) RH CT:PA LIST NO.: 1 SL NO.: 38