Karnataka High Court
Basaventavva W/O Godachappa Kumbar vs Akkavva W/O. Shivaputrappa Kumbar on 22 August, 2023
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NC: 2023:KHC-D:9299
RFA No. 4103 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 4103 OF 2013 (DEC/PAR-)
BETWEEN:
1. BASAVENTAVVA W/O GODACHAPPA KUMBAR,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O: YARAGUPPI, TQ: KUNDAGOL,
DIST: DHARWAD-580030.
2. SRI. SHEKAPPA S/O GODACHAPPA KUMBAR,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: YARAGUPPI, TQ: KUNDAGOL,
DIST: DHARWAD-580030.
3. SRI. ULAVAPPA S/O GODACHAPPA KUMBAR,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: YARAGUPPI, TQ: KUNDAGOL,
DIST: DHARWAD-580030.
Digitally
signed by
SAROJA 4. SRI. MANJUNATH S/O GODACHAPPA KUMBAR,
SAROJA HANGARAKI
HANGARAKI Date:
2023.08.30
AGE: 32 YEARS, OCC: AGRICULTURE,
14:52:07
+0530 R/O: YARAGUPPI, TQ: KUNDAGOL,
DIST: DHARWAD-580030.
5. SRI. SHARANAPPA S/O GODACHAPPA KUMBAR
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O: YARAGUPPI, TQ: KUNDAGOL,
DIST: DHARWAD-580030.
...APPELLANTS
(BY SRI. D.L.LADKHAN, ADVOCATE)
AND:
1. SRI. IRAPPA S/O CHANDRAPPA KUMAR
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O: YARAGUPPI, TQ: KUNDAGOL,
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NC: 2023:KHC-D:9299
RFA No. 4103 of 2013
DIST: DHARWAD-580030.
1.A SMT. SHANTAWWA W/O IRAPPA KUMBAR
AGE ABOUT 60 YEARS, OCC: HOUSEHOLD WORK,
R/O: YARAGUPPI, TQ: KUNDAGOL,
DIST: DHARWAD-580030.
2. SMT. AKKAVVA W/O SHIVAPUTRAPPA KUMBAR
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O: KUMBAR ONI, SAI NAGAR
ROAD, UNAKAL, HUBLI-580020.
3. SMT. SAVAKKA W/O MANJAPPA ANNIGERI
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O: INDUR, TQ: MUNDAGOD-580120,
DIST: UTTARA KANNADA.
4. SRI. FAKIRAPPA S/O CHANDARAPPA KUMBAR
AGE: 49 YEARS, OCC: CONDUCTOR,
R/O: H.NO.26/50, SAI COLONY,
SAI NAGAR, UNKAL, HUBLI,
DIST: DHARWAD-580020.
5. SRI. IRAPPA S/O SHIVAPPA UMACHAGI
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: NALWADI, TQ: NAVALAGUND,
DIST: DHARWAD-580028.
6. SRI. YALLAPPAGOUDA RAMANAGOUDA
DEVAKKAGOUDAR
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O: KURAHATTI, TQ: KUNDAGOL,
DIST: DHARWAD-580028.
...RESPONDENTS
(BY SRI. S C HIREMATH, ADVOCATE FOR R2 AND R3;
SRI. R.G.DHONGADI, ADVOCATE AND
SMT. UMA H HANDI, ADVOCATE AND
SRI MAHESH B VAGGEAR, ADVOCATE FOR R5;
NOTICE TO R1(A), R4 AND R6 SERVED)
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NC: 2023:KHC-D:9299
RFA No. 4103 of 2013
THIS RFA IS FILED UNDER SEC.96 READ WITH ORDER 41
RULE 1 AND 2 OF CPC PRAYING TO CALL FOR RECORDS OF
OS.NO.124/2010 ON THE FILE OF 3RD ADDITIONAL SENIOR CIVIL
JUDGE, HUBLI, TO SET ASIDE THE JUDGMENT AND DECREE DRAWN
DATED 28.02.2013 AND 11.03.2013 IN OS.NO.124 OF 2010 PASSED
BY 3RD ADDITIONAL SENIOR CIVIL JUDGE, HUBLI AND TO DISMISS
SUIT AGAINST DEFENDANT NO.2 TO 6(APPELLANT HEREIN). TO
GRANT ANY OTHER RELIEFS AS THE HONOURABLE COURT DEEMS
FIT BE AWARDED INCLUDING THE COSTS OF THE SUIT IN THE
INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The defendants No.2 to 6 in O.S.No.124/2010 on the file of III Additional Senior Civil Judge, Hubballi are before this Court under Section 96 of Code of Civil Procedure ('Code' for short) challenging the judgment and decree dated 28.02.2013 passed in the above said suit.
2. The suit for partition and separate possession filed by the two daughters of late Chandrappa is decreed in part. Plaintiff No.2 was given 1/5th + 1/25th share and plaintiff No.1 is also held entitled to 1/25th share in Item Nos.1 to 3, 5 and 6 of the suit schedule properties. The -4- NC: 2023:KHC-D:9299 RFA No. 4103 of 2013 plaintiffs have not questioned the said judgment and decree.
3. Genealogy of the parties is as under:
Chandrappa (Propositus) Dead Shankravva (Dead) Irappa Godachappa (Dead) Akkavva Savakka Fakkirappa Basavantavva Shekhappa Ulavappa Manjunath Sharanappa
4. Brief facts:
4.1 One Chandrappa was the propositus. He died on 20.11.1989. His wife Shankravva died on 05.09.2006. The couple had three sons and two daughters. Irappa is the elder son, Godachappa is the second son and second son died in 1995, Akkavva is the daughter who is plaintiff No.1, Savakka is another daughter who is plaintiff No.2 and Fakkirappa is the last son who is arrayed as defendant -5- NC: 2023:KHC-D:9299 RFA No. 4103 of 2013 No.7. The heirs of Godachappa, the second son who died in 1995 are arrayed as defendants No.2 to 6. Defendants No.8 and 9 are the purchasers of one of the suit schedule properties bearing Sy.No.147/1B measuring 4 acres. The suit is filed in respect of 'A' schedule properties which are seven in number and agricultural lands and 'B' schedule which are four in number which are the residential houses.
4.2 The plaintiffs claim that all the properties were originally held by Chandrappa, the propositus and after his demise the mother and children inherited the properties and there is no partition between the brothers and sisters and there was no partition during the lifetime of the father of the plaintiffs i.e. Chandrappa, as such the plaintiffs claim equal share in the suit schedule properties.
4.3 The defendants No.3 to 6 contested the suit.
The defendants put up a defence of previous partition of 1981 and it is their contention that in the partition of 1981 the Item No.1 of 'A' schedule properties is allotted to the share of the father Chandrappa and remaining Item Nos.2 -6- NC: 2023:KHC-D:9299 RFA No. 4103 of 2013 to 7 properties are divided between three sons of Chandrappa.
4.4 Contesting defendants contend that this partition of 1981 is duly evidenced in mutation entry No.5595 of Yaraguppi village. It is their further contention that this partition is acted upon and it is also contended that the property bearing Sy.No.147/1B was sold in the year 1992 in favour of defendant No.8 and Sy.No.49/2A was sold in favour of defendant No.9 in the year 2000.
4.5 The purchasers namely defendants No.8 and 9 also contested the suit and claimed that they are the bonafide purchasers of the properties purchased by them and prayed for dismissal of the suit.
4.6 The trial Court accepted the claim of the plaintiffs in respect of the properties which are in the hands of the brothers. The suit is dismissed insofar as properties which are already sold. The trial Court has also accepted the contention of the defendants that plaintiff -7- NC: 2023:KHC-D:9299 RFA No. 4103 of 2013 No.2 being born before 1956 is not entitled to claim equal share in the suit schedule properties.
5. Aggrieved by the aforementioned judgment and decree, defendants No.2 to 6 are in appeal.
6. Heard Sri.D.L.Ladkhan, the learned counsel for the appellants and Sri.S.C.Hiremath, the learned counsel for respondents No.2 and 3.
7. Sri.D.L.Ladkhan, the learned counsel for the appellants would submit that the previous partition though pleaded and established by the defendants, the trial Court failed to consider the previous partition and erroneously held that the partition has not taken place and the daughters are entitled to share in the properties which are not yet sold. It is also his contention that the partition between the family members is oral partition between the family members which is well recognized under the Hindu Law and they need not be evidenced through registered document. Even in the absence of registered document if the parties are able to establish that they have been -8- NC: 2023:KHC-D:9299 RFA No. 4103 of 2013 residing separately after dividing the properties, same amounts to valid partition and this aspect of the matter has not been appreciated by the trial Court.
8. Sri.S.C.Hiremath learned counsel appearing for the plaintiffs/respondents No.2 and 3 would submit that 1981 partition is not a partition in the eye of law. He would submit that all the properties are of propositus Chandrappa and those properties being self-acquired properties he could not have effected partition among his sons without there being a registered document. Since the sons had no title over the properties, in the year 1981, right accrued by reason of mutation entry does not extinguish title of the father Chandrappa, and after the demise of the father, the daughters acquire equal share in the properties.
9. He also submits that the daughter namely plaintiff No.2 who is born before 1956 is also entitled to equal share as she is claiming right over the properties as a Class-I heir under Section 8 of Hindu Succession Act. -9-
NC: 2023:KHC-D:9299 RFA No. 4103 of 2013 The trial Court is not justified in granting notional share to plaintiff No.2 and even in the absence of any cross appeal, this Court in exercise of power under Order LXI Rule 33 to mould the relief and award legitimate share that has to be awarded in favour of plaintiff No.2.
10. This Court has considered the contentions raised at the bar.
11. The following points would arise for consideration:
(1) Whether the trial Court is justified in granting a decree for partition in respect of properties standing in the name of the brothers?
(2) Whether the trial Court is justified in holding that plaintiff No.2 who is born before 1956 is entitled to a notional share?
12. As could be noticed from the defence raised by the sons, the defence revolves around the partition which is said to have taken place in 1981 and to support their stand, the defendants have produced certified copy of
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NC: 2023:KHC-D:9299 RFA No. 4103 of 2013 mutation entry No.5595 marked at Ex.D.15. On perusal of the aforementioned mutation entry, it is noticed that the father Chandrappa has effected partition between his three sons namely Irappa, Godachappa and Fakkirappa and children of deceased son Godachappa and it is noticed that he has also retained Sy.No.276/1B measuring 5 acres 35 guntas as his share in the properties. This entry was certified in the year 1981 and Chandrappa died in 1989. His wife died in 2006. On perusal of this entry, it is evident that the father Chandrappa carried the impression that these properties are the family properties in which his sons have share over the properties and accordingly to resolve the future dispute he has effected partition which can be noticed from the recital in M.E.No.5595 at Ex.D.15.
13. The question before this Court is whether this mutation entry which reflects the partition of 1981 is proof of a valid partition?
14. Learned counsel for the appellants Sri.D.L.Ladkhan would submit that though this mutation
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NC: 2023:KHC-D:9299 RFA No. 4103 of 2013 entry is termed out as partition of 1981, for all practical purposes it can also be termed as family settlement. Even in the absence of registered document relating to family settlement it can be treated as a valid family settlement in view of the law laid down in the case of Kale and Others vs. Deputy Director of Consolidation reported in AIR 1976 page 807.
15. It is also his contention that it can also be treated as a valid partition as the father treated the sons as members of the family. The father carried the impression that sons have share in the properties and to resolve future dispute he has settled the properties in favour of his sons by way of partition.
16. Learned counsel, Sri.S.C.Hiremath appearing on behalf of respondents, daughters would contend that the sons had no antecedent title when this alleged partition took place in 1981 and right is sought to be created for the first time in 1981 through a varadi given by the father as such this document does not confer any title in favour
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NC: 2023:KHC-D:9299 RFA No. 4103 of 2013 of the sons and does not extinguish antecedent title and the father continued to be the owner of the properties till his demise in 1989 and after his demise the daughters acquire equal share in the properties under Section 8 of the Hindu Succession Act, 1956.
17. This Court has considered the contentions relating to the validity or otherwise of M.E.No.5595 which reflects the alleged family partition of 1981. In the case of Kale referred to supra, the Apex Court after considering various judgments on the point, has concluded that even in case where there is no antecedent title in favour of one of the parties to the family arrangement there can be a valid family settlement provided the intention of the parties was to resolve all the disputes. Relevant portion of the judgment for the purpose of this case reads as under:
".......(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement
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NC: 2023:KHC-D:9299 RFA No. 4103 of 2013 the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owners, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same."
18. From the aforementioned ratio laid down in the case of Kale, it can be safely concluded that even in the absence of registered document if there is a valid family settlement among the family members with an intention to resolve the dispute which has arisen at the time of family arrangement or which may arise in future, the Court can uphold the family arrangement provided that such family arrangement is established.
19. From the recital in M.E.No.5595, it can be safely conferred that the father in order to resolve the dispute among his sons and to resolve the dispute which may arise in future, has chosen to divide the properties among his three sons and to retain portion of the properties for himself. It is also contended that the father died in 1989 and this mutation was certified in 1981 and it is further
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NC: 2023:KHC-D:9299 RFA No. 4103 of 2013 noticed that in the year 1992 one of the sons to whom the properties are allotted has sold the properties in favour of defendant No.8 and one more son has sold property in favour of defendant No.9 in the year 2000. These sale deeds have not been questioned by the plaintiffs immediately after the execution of the sale deeds. All these factors if are taken into consideration would lead to the inevitable conclusion that in 1981 the father did effect partition in favour of his sons.
20. Though it is true that in respect of self-acquired properties the sons did not have right over the properties when this partition took place in 1981, what can be noticed is that the father intended to settle the dispute which may arise in future and thereby settled the properties in favour of his sons in the form of partition and there is nothing on record to indicate that this partition of 1981 is not acted upon. On the other hand, the records namely sale deed would indicate that two properties were
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NC: 2023:KHC-D:9299 RFA No. 4103 of 2013 sold in 1992 and 2000 respectively which would clearly demonstrate that partition of 1981 is acted upon.
21. This being the position, applying the law laid down in kale's case, this Court is of the view that this arrangement/partition of 1981 has to be upheld. As could be noticed from the partition of 1981 evidenced in M.E.No.5595 property bearing Sy.No.26/1B measuring 5 acre 34 guntas was retained by the father. Father died in 1989. Thus succession opened in 1989 after the demise of the father in favour of three sons and two daughters. This being the position, the plaintiffs are entitled to equal share in Item No.1 property.
22. It is also relevant to note that Ex.D.16 is the certified copy of M.E.No.5612 which is certified in 1981, wherein the father has given a varadi to the village accountant stating that after his demise and demise of his wife, the properties should go to his son Godachappa. This document again evidences that there was partition in 1981 in respect of all the family properties. Based on this
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NC: 2023:KHC-D:9299 RFA No. 4103 of 2013 document the right in favour of Godachappa cannot be recognised for the simple reason that this document does not even indicate partition between Chandrappa and Godachappa. It is neither a Will. This being the position, Godachappa cannot claim right over the properties bearing Sy.No.276/1B based on M.E.No.5612. Hence, the Court has to hold that the propositus Chandrappa retained ownership over M.E.No.5612 till his death. After his demise the properties would devolve upon his wife and wife died in 2006. Hence, property would devolve upon his children and children of Godachappa equally.
23. As far as 'B' schedule properties is concerned, no records are produced to show that the partition has taken place during the lifetime of propositus Chandrappa. The properties are purchased by Chandrappa as such daughters would inherit right over the properties under Section 8 equally.
24. Though there is no appeal by plaintiff No.2 who has given a notional share, this Court in exercise of power
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NC: 2023:KHC-D:9299 RFA No. 4103 of 2013 under order XLI rule 33 of CPC can determine the share of plaintiffs and though the daughter is born before 1956 since the daughter is claiming under Section 8 of Hindu Succession Act, plaintiff No.2 is also entitled to equal share in Item No.1 property as well as 'B' schedule properties. Accordingly, this Court is of the view that the impugned judgment and decree passed by the trial Court are to be modified.
25. Learned counsel for the respondents would rely upon the judgment of this Court in RFA No.771/2000 decided on 13.09.2013. This Court has referred to the said judgment. The facts in the said case are different from the facts of this case. In the said case, the mother is granted property by the Land Tribunal in the year 1981 along with sons. However, the defence of the family arrangement of 1979 was raised. There is no family arrangement subsequent to grant of property in favour of the mother. Hence, facts of the said case are not applicable to the present case.
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26. Though the trial Court has not passed a decree for mesne profits, this Court is of the view that the plaintiffs are entitled to past and future mesne profits in respect of properties for which the share is declared.
27. In view of the foregoing, following order is passed:
ORDER
(i) Appeal is allowed in part.
(ii) Judgment dated 28.02.2013 and decree dated 11.03.2013 passed in O.S.No.124/2010 by the III Additional Senior Civil Judge, Hubli are modified.
(iii) The plaintiffs are also entitled to succeed to Item No.1 property and properties in 'B' schedule to the extent of 1/5th share each.
(iv) There shall be enquiry relating to mesne profits payable for the period commencing from 3 years prior to the suit, till
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NC: 2023:KHC-D:9299 RFA No. 4103 of 2013 the date of actual handing over of possession of the properties of the plaintiffs.
Sd/-
JUDGE SH LIST NO.: 1 SL NO.: 21