Karnataka High Court
Smt. Sharadabai W/O Govindanaik Naik vs Smt. Akkubai W/O Venkatanaik Naik on 2 January, 2017
Bench: Ravi Malimath, K. Somashekar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 02ND DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE K. SOMASHEKAR
REGULAR FIRST APPEAL No.3119 OF 2011 [PAR/POS]
CONNECTED WITH
REGULAR FIRST APPEAL No.4028 OF 2012 [PAR/POS]
IN RFA No.3119 OF 2011:
BETWEEN:
1. SMT. SHARADABAI W/O GOVINDANAIK NAIK
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O KOVALLI, TQ. BILAGI, DIST. BAGALKOT
2. SHIVANAIK S/O GOVINDANAIK NAIK
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O KOVALLI, TQ. BILAGI, DIST. BAGALKOT.
3. VIJAYANAIK S/O GOVINDANAIK NAIK
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O KOVALLI, TQ. BILAGI, DIST. BAGALKOT.
4. RANGANAIK S/O GOVINDANAIK NAIK
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O KOVALLI, TQ. BILAGI, DIST. BAGALKOT.
5. SMT. REKHABAI W/O VITHALNAIK NAIK
AGE: 41 YEARS, OCC: HOUSEHOLD WORK,
R/O KOVALLI, TQ. BILAGI, DIST. BAGALKOT.
2
6. KUMAR VENKATRAO S/O VITHALNAIK NAIK
AGE: 12 YEARS, OCC: STUDENT,
R/O KOVALLI, TQ. BILAGI, DIST. BAGALKOT.
7. KUMARI RAJESHWARI D/O VITHALNAIK NAIK
AGE: 17 YEARS, OCC: STUDENT,
R/O KOVALLI, TQ. BILAGI, DIST. BAGALKOT.
8. KUMARI SHREEDEVI D/O VITHALNAIK NAIK
AGE: 15 YEARS, OCC: STUDENT,
R/O KOVALLI, TQ. BILAGI, DIST. BAGALKOT.
9. KUMARI TANUSHRI D/O VITHALNAIK NAIK
AGE: 14 YEARS, OCC: STUDENT,
R/O KOVALLI, TQ. BILAGI, DIST. BAGALKOT.
10. KUMARI VISHALAXMI D/O VITHALNAIK NAIK
AGE: 12 YEARS, OCC: STUDENT,
R/O KOVALLI, TQ. BILAGI, DIST. BAGALKOT.
[APPELLANT NO. 6 TO 10 SINCE MINORS,
REPTD. BY THEIR NATURAL GUARDIAN MOTHER
APPELLANT NO.5 SMT. REKHABAI
W/O VITHALNAIK NAIK]
11. GOPALABAI @ SHOBHA W/O BALASAHEB PATIL
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O SINDOGI, TQ. SOUNDATTI,
DIST. BELGAUM
... APPELLANTS
(By Sri. F V PATIL ADV.)
AND:
1. SMT. AKKUBAI W/O VENKATANAIK NAIK
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O SUNAG, TQ. BILAGI, DIST. BAGALKOT.
SINCE DECEASED, REPTD. BY HER LRS:
1A. JAYASHREE @ KESUBAI W/O.BABASAHEB PATIL,
AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
R/O.GALAGI HULAKOPPA VILLAGE, TQ: KALGHATAGI
DIST: DHARWAD
3
1B. VIJAYA W/O.ANNASAHEB PATIL,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O.SINDHOGI VILLAGE, TQ: SAUDATTI,
DIST: BELGAUM.
1C. SRINIVAS S/O.VENKATNAIK NAIK,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O.SUNAG VILLAGE, TQ: BILAGI,
DIST: BAGALKOT
1D. SUJATA W/O. RAJENDRA DESAI,
AGE; 32 YEARS, OCC: HOUSEHOLD WORK,
R/O.NEELAGUNDI VILLAGE, TQ: BADAMI,
DIST: BAGALKOT
2. PRADEEPKUMAR S/O VENKATANAIK NAIK
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O SUNAG, TQ. BILAGI, DIST. BAGALKOT.
3. RAMACHANDRANAIK S/O VENKATANAIK NAIK
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O SUNAG, TQ. BILAGI, DIST. BAGALKOT.
... RESPONDENTS
(R1A TO R1D--SERVICE HELD SUFFICIENT;
SRI.M.G.NAGANURI AND SRI.S.P.PATIL, ADV. FOR R2 & R3)
THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER XLI OF THE CIVIL PROCEDURE CODE, 1908 PRAYING
THIS HON'BLE COURT TO SET ASIDE THE JUDGMENT AND
DECREE DATED 17TH SEPTEMBER 2011 PASSED BY THE SENIOR
CIVIL JUDGE, BILAGI, IN OS No.207 OF 2005 BY ALLOWING THIS
APPEAL AND SUIT OF THE PLAINTIFFS MAY KINDLY BE
DISMISSED, IN THE INTEREST OF JUSTICE AND EQUITY, ETC.
IN RFA No.4028 OF 2012:
BETWEEN:
1. AKKUBAI W/O. VENKATANAIK NAIK
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O. SUNAG-587116, TQ: BILAGI,
DIST: BAGALKOT.
4
SINCE DECEASED,
APPELLANT NOS.2 AND 3
ARE TREATED AS HER LRS,
VCO DTD.09.09.2015.
2. PRADEEPKUMAR VENKATANAIK NAIK
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O. SUNAG-587116, TQ: BILAGI,
DIST: BAGALKOT.
3. RAMACHANDRANAIK VENKATANAIK NAIK
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O. SUNAG-587116, TQ: BILAGI,
DIST: BAGALKOT.
... APPELLANTS
(By Sri. M G NAGANURI ADV.)
(A2 AND A3 ARE TREATED AS LRS OF DECEASED A1)
AND:
1. SHARADABAI W/O. GOVINDNAIK NAIK
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O. KOVALLI-587214, TQ: BILAGI,
DIST: BAGALKOT.
2. SHIVANAIK GOVINDNAIK NAIK
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O. KOVALLI-587214, TQ: BILAGI,
DIST: BAGALKOT
3. VIJAYNAIK GOVINDNAIK NAIK
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O. KOVALLI-587214, TQ: BILAGI,
DIST: BAGALKOT
4. RANGANAIK GOVINDNAIK NAIK
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O. KOVALLI-587214, TQ: BILAGI,
DIST: BAGALKOT
VITHALNAIK GOVINDNAIK NAIK
SINCE DECEASED BY HIS LRS
5
5. REKHABAI W/O. VITHALNAIK NAIK
AGE: 41 YEARS, OCC: HOUSEHOLD,
R/O. KOVALLI-587214, TQ: BILAGI,
DIST: BAGALKOT
6. KUMAR VENKATRAO VITHALNAIK NAIK
AGE: 13 YEARS, OCC: STUDENT,
BEING MINOR, REPTD. BY HIS
NATURAL MOTHER-GUARDIAN RESPONDENT NO.5
SMT.REKHABAI W/O. VITHALNAIK NAIK
R/O. KOVALLI-587214, TQ: BILAGI,
DIST: BAGALKOT
7. KUMARI RAJESHWARI D/O. VITHALNAIK NAIK
AGE: 21 YEARS, OCC: AGRICULTURE,
R/O. KOVALLI-587214, TQ: BILAGI,
DIST: BAGALKOT
8. KUMARI SHREEDEVI D/O. VITHALNAIK NAIK
AGE: 19 YEARS, OCC: AGRICULTURE,
R/O. KOVALLI-587214, TQ: BILAGI,
DIST: BAGALKOT
9. KUMARI TANUSHREE D/O. VITHALNAIK NAIK
AGE: 13 YEARS, OCC: STUDENT,
BEING MINOR, REPTD. BY HER
NATURAL MOTHER-GUARDIAN RESPONDENT NO.5
REKHABAI W/O. VITHALNAIK NAIK
R/O. KOVALLI-587214, TQ: BILAGI,
DIST: BAGALKOT
10. KUMARI VISHALAXMI D/O. VITHALNAIK NAIK
AGE: 15 YEARS, OCC: STUDENT,
BEING MINOR, REPTD. BY HER
NATURAL MOTHER-GUARDIAN RESPONDENT NO.5
REKHABAI W/O. VITHALNAIK NAIK
R/O. KOVALLI-587214, TQ: BILAGI,
DIST: BAGALKOT
11. GOPALBAI @ SHOBHA W/O. BALASAHEB PATIL
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O. SINDOGI-583212, TQ: SOUNDATTI,
DIST: BELGAUM.
6
12. TUKARAM HANAMANT DESAI
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O. KANBUR-586101, TQ & DIST: BIJAPUR.
13. KRISHNAPPA GOVINDAPPA SALALLI
AGE: 73 YEARS, OCC: AGRICULTURE,
R/O. SUNAG-587116, TQ: BILAGI,
DIST: BAGALKOT.
14. RAMAPPA GOVINDAPPA SALALLI
AGE: 78 YEARS, OCC: AGRICULTURE,
R/O. SUNAG-587116, TQ: BILAGI,
DIST: BAGALKOT.
15. BALAPPA AMEENAPPA KOMAR @ DESAI
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O. KANBUR-586101, TQ & DIST: BIJAPUR.
16. SITARAM HANAMANT DESAI
AGE: 73 YEARS, OCC: AGRICULTURE,
R/O. KANBUR-586101, TQ & DIST: BIJAPUR.
17. RANGAPPA BASAPPA NAIK
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O. KOVALLI-587214, TQ: BILAGI,
DIST: BAGALKOT.
18. ANNAPPA BASAPPA NAIK
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O. KOVALLI-587214, TQ: BILAGI,
DIST: BAGALKOT.
19. MAHADEVI W/O. BHIMAPPA NAIK
AGE: 29 YEARS, OCC: HOUSEHOLD WORK
R/O. KOVALLI-587214, TQ: BILAGI,
DIST: BAGALKOT.
20. BABU BASAPPA NAIK
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O. KOVALLI-587214, TQ: BILAGI,
DIST: BAGALKOT.
21. SUSHILABAI W/O. VENKAPPA BENAKATTI
AGE: 60 YEARS, OCC: HOUSEHOLD WORK
7
R/O. ARAKERI-587116, TQ: BILAGI,
DIST: BAGALKOT.
22. KALAWATI W/O. ASHOK WALI
AGE: 48 YEARS, OCC: HOUSEHOLD WORK
R/O. GUDADINNI-587201, TQ: BILAGI.
DIST: BAGALKOT.
23. MUDAKAPPA BASAPPA NAIKAR
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O. GUDADINNI-587201, TQ: BILAGI.
DIST: BAGALKOT.
24. SURESH VEERABHADRAPPA ANGADI
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O. ANAGAWADI-587201, TQ: BILAGI,
DIST: BAGALKOT.
25. RAVI VEERABHADRAPPA ANGADI
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O. ANAGAWADI-587201, TQ: BILAGI,
DIST: BAGALKOT.
26. SANGAPPA HANAMANTAPPA BANGI
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O. HERAKAL-587111, TQ: BILAGI,
DIST: BAGALKOT.
27. GOURAMMA W/O. SHAKREPPA MANTRI
AGE: 47 YEARS, OCC: HOUSEHOLD
R/O. ANAGAWADI-587201, TQ: BILAGI,
DIST: BAGALKOT.
28. SHANKREPPA GURAPPA MANTRI
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O. ANAGAWADI-587201, TQ: BILAGI,
DIST: BAGALKOT.
SINCE DECEASED, REPTD. BY HIS LRS:
28A. SMT.SHARANAMMA W/O. IRAPPA PALLED,
AGE: 37 YEARS, OCC: HOUSEHOLD,
R/O. SHIRUR-587120,
TALUK & DIST: BAGALKOT.
8
28B. SRI.SHIVANAND SHANKAREPPA MANTRI,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O. SHIRUR-587120,
TALUK & DIST: BAGALKOT.
28C. SMT.MAHADEVI W/O. SIDDAPPA BHAGAVATI,
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O. SHIRUR-587120,
TALUK & DIST: BAGALKOT.
28D. SRI.RAJASHEKHAR SHANKAREPPA MANTRI,
AGE: 29 YEARS, OCC: AGRICULTURE
R/O. SHIRUR-587120,
TALUK & DIST: BAGALKOT.
28E. NETRAVATI D/O. SHANKAREPPA MANTRI
AGE: 26 YEARS, OCC: HOUSEHOLD,
R/O. SORAKOPPA-587116
TALUK & DIST: BAGALKOT.
29. MALLANGOUDA RUDRAGOUDA PATIL
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O. SUNAG-587116, TQ: BILAGI,
DIST: BAGALKOT.
30. VITHAL HOLABASAPPA ANGADI
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O. SUNAG-587116, TQ: BILAGI,
DIST: BAGALKOT.
31. SUBHASH SHANKREPPA KORTI
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O. SUNAG-587116, TQ: BILAGI,
DIST: BAGALKOT.
32. PRAKASH PARASHURAM JAGALI
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O. SUNAG-587116, TQ: BILAGI,
DIST: BAGALKOT.
33. AMAATEPPA IRAPPA HADAPAD
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O. SUNAG-587116, TQ: BILAGI,
9
DIST: BAGALKOT.
34. SANGAPPA IRAPPA HADAPAD
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O. SUNAG-587116, TQ: BILAGI,
DIST: BAGALKOT.
35. SMT.JAYASHRI @ KESUBAI W/O.BABASAHEB PATIL,
AGE: 43 YEARS, OCC; HOUSEHOLD,
R/O.GALAGI HULKOP-580118
TAL: KALGHATAGI, DIST: DHARWAD
36. SMT. VIJAYA W/O. ANNASAHEB PATIL,
AGE: 41 YEARS, OCC: HOUSEHOLD,
R/O.SINDOGI-591117
TAL: SAUNDATTI, DIST: BELGAUM
37. SMT.SUJATA W/O.RAJENDRA DESAI,
AGE: 33 YEARS, OCC: HOUSEHOLD,
R/O.NEELGUND-582125
TAL: BADAMI, DIST: BAGALKOT.
... RESPONDENTS
(By Sri. F V PATIL ADV. FOR R1 TO R11;
R12 TO 14, R16 TO R21, R24 TO 27,
R28A TO R28E AND R29 TO R34 ARE SERVED;
NOTICE TO R15, R35 TO 37 IS HELD SUFFICIENT;
SRI.SUNIL S.DESAI ADV. FOR R22 AND 23
R28-DECEASED, HIS LRS R28A TO R28E ARE SERVED)
THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER XLI RULE 1 OF THE CIVIL PROCEDURE CODE, 1908
PRAYING THIS HON'BLE COURT TO SET ASIDE THE JUDGMENT
AND DECREE DATED 17TH SEPTEMBER 2011 PASSED BY THE
SENIOR CIVIL JUDGE, BILAGI, IN OS No.207 OF 2005 INSOFAR AS
REJECTION OF THE CLAIM FOR PARTITION IN RESPECT OF 'E'
SCHEDULE PROPERTIES AND THEREBY PASS A DECREE FOR
PARTITION AWARDING HALF SHARE IN THE SAME AND
ALLOW THIS APPEAL WITH COSTS BY DECREEING THE SUIT OF
THE APPELANTS IN OS No.207 OF 2005 ON THE FILE OF THE
SENIOR CIVIL JUDGE, BILAGI, AWARDING HALF SHARE IN 'E'
SCHEDULE PROPERTIES, ETC.
THESE APPEALS COMING ON FOR FINAL HEARING THIS
DAY, RAVI MALIMATH, J. DELIVERED THE FOLLOWING:
10
JUDGMENT
The case of the plaintiffs is that one Sri.Ramachandranaik was the propositus of the family of the plaintiffs and the defendants. He had two sons by name Govindanaik, the husband of defendant No.1 and father of defendant Nos.2 to 6. The other son Venkatanaik is the husband of plaintiff No.1 and father of plaintiff Nos.2 and 3. Ramachandranaik died on 23rd October 1975. Govidanaik died on 23rd February 1996 and Venkatanaik, died in the year 2002. The plaintiffs are the legal heirs of the deceased Venkatanaik and defendants are the legal heirs of the deceased Govindanaik. That the suit schedule properties are the joint family properties of the plaintiffs and defendants. After the death of the propositus/Ramachandranaik, there was a partial partition between the plaintiffs and the defendants in respect of schedule 'C' and 'D' house properties. Shares were allotted to the respective parties. They have been in exclusive possession and enjoyment of the same. That the properties shown in 'C' schedule were submerged under land acquisition and the compensation amount awarded was received by the defendants. 11 The suit schedule 'A' and 'B' properties were kept joint at the time of partial partition. That there is no partition with respect to suit schedule 'A' and 'B' properties. The schedule 'E' properties were agreed to be purchased by the joint family of the plaintiffs and defendant Nos.1 to 6 from defendant Nos.7 to 15 out of the compensation amount received by the joint family properties. Hence, the plaintiffs are entitled for half share in these properties also. The schedule 'B' properties were submerged under acquisition and the compensation amounts are in deposit. That the defendants having taken advantage of their names in respect of 'B' schedule properties are making hectic efforts to receive the entire compensation amount. Hence, the instant suit was filed for partition and separate possession of 'A' and 'B' schedule properties.
2. On service of suit summons, defendant Nos.1 to 6, 8, 16 to 29 entered appearance. The suit against defendant Nos.10, 12 to 15 was dismissed. Defendant Nos.7, 9 and 11 did not appear and were placed exparte′. The Defendant No.5 filed written statement on behalf of himself as well as the power of 12 attorney holder of defendant Nos.1 to 4 and 6. Defendant Nos.5A to 5F adopted the written statement of defendant No.5. It was contended that the allegations made in the plaint are false, vexatious and not tenable. The plaint averments were denied. It was contended that the properties shown in part-II of schedule 'A', the house properties at Sl.No.1 bearing VPC No.225 was given to defendant No.5 and Sl.No.2 property of Sunag village bearing VPC No.379 is in the joint possession of the plaintiffs and defendants. So also the property shown in schedule 'D' of Sunag village bearing VPC Nos.442, 443 and 444 were given to the plaintiffs in the partition. That Ramachandranaik during his lifetime had partitioned the properties of Kovalli village and Budihal village to his two sons, Govindanaik and Venkatanaik in terms of mutation entry No.1294 in the year 1965 itself. Therefore, the plaintiffs cannot claim half share in schedule 'A' to 'C' properties. That the propositus had partitioned the properties in favour of his two sons on 01st May 1965. The mutation entry effected has not been challenged. The properties having been 13 divided are being enjoyed by the respective parties. Hence, the defendants had sought for dismissal of the suit.
3. Based on the pleadings, the trial court framed the following issues and additional issues:
"Issues
(i) Whether the plaintiffs prove that, the suit schedule 'A' and 'B' properties are the ancestral joint family properties of plaintiffs and defendants?
(ii) Whether the defendants 1 to 6 prove that there was already partition took place in their family during 1965 itself as contended in para 13 of the written statement?
(iii) Whether the plaintiffs are entitled for half share in the suit 'A' and 'B' schedule properties?
(iv) What order or decree?
Additional Issues
(i) Whether defendants 24, 26 and 27 prove that they are bonafide purchasers of suit property for valuable consideration?
(ii) Whether defendants 16 to 23 prove that they are bonafide purchasers of suit property for valuable consideration?"14
4. The plaintiffs in order to prove their case got examined plaintiff No.1 as PW-1 and got marked documents at Exs.P-1 to 43. The defendants to prove their case got examined defendant No.2 as DW-1 and got marked the documents at Exs.D-1 to 21; defendant No.18 as DW-2 and got marked the documents at Ex.D-22 to 82; defendant No.26 as DW-3 and got marked the documents at Exs.D-83 to 87; defendant No.27 as DW-4 and got marked the documents Exs.D-88 to 90; defendant No.24 as DW-5 and got marked the documents at Exs.D-91 to 99; defendant No.29 as DW-6 and got marked the documents at Exs.D-100 to 102; defendant No.25 as DW-7 and got marked the documents at Exs.D-103 to D-108 and the witness for defendant No.27 was examined as DW-8 and no documents were got marked.
5. Issue Nos.1, 3 and both the additional issues were held in the affirmative and issue No.2 was held in the negative. The suit of the plaintiffs was partly decreed. The plaintiffs were held entitled to half share in the suit schedule 'A' and 'B' properties 15 only. The suit of the plaintiffs with respect to schedule 'C', 'D' and 'E' properties were deemed to have been dismissed.
6. Seeking dismissal of the suit, the defendants have filed RFA No.3119 of 2011 and the plaintiffs have filed RFA No.4028 of 2012 seeking grant of share in Schedule 'E' properties.
7. At the request of both learned counsels, the matter is taken up for hearing together.
8. The parties will be referred to as per their rankings before the trial court.
9. Heard learned counsels and examined the records.
10. Sri.F.V.Patil, learned counsel for the appellants in RFA No.3119 of 2011, namely the defendants in the suit, contends that the judgment and decree of the trial court cannot be accepted in completion. That the trial court has wrongly granted half share in item Nos.6 to 8 of schedule 'A' properties to the plaintiffs. That the suit item No.6 the property bearing Sy.No.11/1 of Kovalli village has fallen to the share of the plaintiffs. The suit item 16 Nos.7 and 8, the properties bearing Sy.Nos.47/A and 46 respectively of Budihal village as well as part of the lands of Schedule 'B' namely Sy.Nos.1/1B, 1/1A/1 and 1/1A/2 of Kovalli village have fallen to the share of the defendants by virtue of mutation entries effected. Since certain properties have been allotted to the share of the respective parties, the question of reopening the partition does not arise. That the trial court failed to consider the fact that since the shares have been allotted, the same cannot be repartitioned. The trial court was at a tangent to hold that the relinquishment was not in accordance with law. Hence, he pleads that his appeal be allowed.
11. On the other hand, Sri.M.G.Naganuri, learned counsel appearing for the appellants in RFA Nos.4028 of 2012, namely the plaintiffs, defends the impugned judgment and decree. He contends that there is no error committed by the trial court that calls for any interference. That the division of the properties is just and proper. That the relinquishment is not in accordance with law. The same is hit by Section 17 of the Registration Act, 1908. Hence, such a transaction is not valid in the eyes of law. 17 He therefore pleads that the suit be decreed so far as schedule 'E' properties are concerned.
12. The sum and substance of the contentions of both the parties are focused on some of the suit schedule properties. There is no dispute or contention being advanced by the parties with regard to the other suit schedule properties. The only dispute herein is with regard to the suit item Nos.6, 7 and 8 of the Schedule 'A' properties, namely Sy.No.11/1 situate at Kovalli village and Sy.Nos.47/A and 46 both situate at Budihal village. The dispute is also with reference to 'B' schedule item Nos.1 to 3 bearing Sy.Nos.1/1B, 1/1A/1 and 1/1A/2 situate at Kovalli village. Therefore, the point that arises for consideration in these appeals is as under:
"Whether the trial court was justified in holding that there has been no partition of the disputed properties and was therefore justified in granting half share of the suit schedule 'A' and 'B' properties to the plaintiffs and defendants?"
13. In terms of mutation entry No.1294 vide Ex.D-4 dated 01st May 1965, item No.6 of 'A' schedule property bearing 18 Sy.No.11/1 fell to the share of the plaintiffs and item Nos.1 to 3 of 'B' schedule properties bearing Sy.Nos.1/1B, 1/1A/1 and 1/1A/2 fell to the share of the defendants. Therefore, there is no real dispute so far as these survey numbers are concerned. However, so far as item Nos.7 and 8 are concerned namely Sy.Nos.47/A and 46 of Budihal village, the same is with reference to Ex.D-13, the mutation entry No.835 dated 20th April 1965, wherein the lands have been surrendered in favour of the defendants. It is herein the plaintiffs' counsel contends that the same is not acceptable in law. That it is not a relinquishment that could be accepted. That a relinquishment can only be made of a property which is under the joint ownership or in a joint right of the family properties. Since, a partition has not been effected, the properties continue to be joint. Therefore, they are entitled for half share in the suit schedule properties, since the relinquishment cannot be considered a valid document of transfer. It is further contended that any transfer to be effected would stand hit by the provision of Section 17 of the Registration Act. Therefore, if the mutation entry is not accepted, such property is liable for division 19 and therefore, the order of the trial court is erroneous to that extent. Further, that in terms of Ex.D-4, the plaintiffs have received the entire property at Sl.No.6. However, the half share has been given to the defendants. That it is an erroneous finding by the trial court. That the properties pertaining to schedule 'B' given to the share of the defendants in terms of mutation entry at Ex.D-4 is also erroneous. Since a mutation entry cannot be accepted, the defendants would not receive any share in the said properties.
14. On the other hand, Sri.F.V.Patil, learned counsel for the defendants, namely the appellants in RFA No.3119 of 2011 disputes the same. He contends that in terms of mutation entry No.1294, Ex.D-4, the plaintiffs have received the entire extent of the land in Sl.No.6 of schedule 'A' properties. The defendants have received the entire Sl.No.7 properties as well as Sl.No.8 properties by virtue of Ex.D-18, mutation entry No.935. So also, item Nos.1, 2 and 3 of the suit schedule 'B' properties have fallen to the share of the defendants in terms of Ex.D-4. Therefore, those properties have been relinquished in the name of the 20 defendants. It is further contended that the question of accepting the plea of the plaintiffs would not arise for consideration when the parties have understood their respective pleadings as well as the documents on record. It is further pleaded that all these partitions and mutations were effected somewhere in the year 1965. For the next forty years, the parties have enjoyed their respective properties. They have also submitted declarations with regard to the holding of their lands to the concerned authorities, wherein the properties that have fallen to their respective shares by Exs.D-13 and 18 have been clearly narrated. There is no claim by the other parties with respect to the lands allotted to them. Therefore, at such a belated stage, to claim a share is erroneous. By virtue of mutation entry No.1294 vide Ex.D-4 dated 01st May 1965, item No.6 of 'A' schedule has fallen to the share of the plaintiffs and item Nos.1 to 3 of 'B' schedule to the share of the defendants by virtue of the same mutation entry.
15. The trial court did not accept this document on the premise that the same cannot be accepted as a document of partition. The trial court was of the view that only because entries 21 have been effected, the same does not create any right in any of the parties. That the right on the properties can only be created by law. Varadi do not determine the rights of the parties. Hence, the trial court was of the view that as a consequence of not accepting the mutation entries, the suit properties cannot be partitioned.
16. We are unable to accept the reasoning of the trial court. By virtue of Ex.D-4, the mutation entry has been effected on 01st May 1965 with respect to Sl.No.6 of 'A' schedule and item Nos.1 to 3 of 'B' schedule. The parties have understood the effect of the varadi. The contention of the plaintiffs that the language used in the varadi is of relinquishment cannot be accepted. Even though it is narrated in such a language, the same is to be understood as understood between the parties with which the said varadi was given. There is no document to evidence the same, except that the varadi has been given effect to. After the varadi has been given effect, the parties have been put in possession of their respective shares of the suit properties. For the next forty years, the parties have enjoyed their respective 22 shares in terms of Ex.D-4. Further more, declarations have been made to the concerned authorities with respect to the respective entitlement of the parties over the said survey numbers. Therefore, after such a long lapse of time, to contend to the contrary and to plead that the varadi is not a valid document in the eyes of law, cannot be accepted. Even accepting that the varadi does not create a title in the properties, the same can necessarily be looked into so far as collateral purposes are concerned. The same would necessarily evidence the fact that there was a division of properties between the parties. That such a division was effected. That such a division was reflected in terms of the mutation entry. Therefore, even though the said varadi does not create a title so far as rights of the parties are concerned, the same has to be considered as if it amounts to division of properties among them and by virtue of the declaration of their holdings, such a document would lead to division of properties. Therefore, the reasoning of the trial court cannot be accepted. The document has to be considered as a division of the properties among the family members. 23 Consequently, the division of the properties in terms of Ex.D-4, item No.6 of 'A' schedule properties would fall to the exclusive share of the plaintiffs. The defendants are not entitled for any share in the item No.6 of 'A' schedule properties.
17. So far as item Nos.1 to 3 of 'B' schedule is concerned, they shall fall exclusively to the share of the defendants. The plaintiffs will not be entitled for any share in item Nos.1, 2 and 3 of 'B' schedule properties.
18. So far as item Nos.7 and 8 of 'A' schedule is concerned, they are reflected in mutation entry No.935 namely Ex.D-18. Ex.D-18 is couched in an identical language as of Ex.D-4. For the reasons assigned herein above, while interpreting Ex.D-4, the properties that have been allotted in terms of Ex.D- 18 shall be given effect to, which means Sl.Nos.7 and 8 of 'A' schedule properties would fall exclusively to the share of the defendants. The plaintiffs will not get any share in Sl.Nos.7 and 8 of 'A' schedule properties.
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19. There is no other dispute between the parties with respect to other suit schedule properties. The plaintiffs do not press the claim made by them in respect of 'E' schedule properties. Hence, the point for consideration is answered by holding that the trial court was justified in holding that there was no partition of the disputed properties and was therefore justified in granting half share of the suit schedule 'A' and 'B' properties to the plaintiffs and defendants.
20. Hence, for the aforesaid reasons, since no other contentions are advanced, the judgment and decree dated 17th September 2011 passed in Original Suit No.207 of 2005 by the learned Senior Civil Judge, Bilagi, is hereby modified. The suit item No.6 of 'A' schedule bearing Sy.No.11/1 situate at Kovalli village is allotted exclusively to the share of the plaintiffs.
Suit item Nos.7 and 8 of 'A' schedule bearing Sy.No.47/A and 46 of Budihal village and Sl.Nos.1 to 3 of 'B' schedule bearing Sy.Nos.1/1B, 1/1A/1 and 1/1A/2 situate at Kovalli village are allotted to the share of the defendants.
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The compensation deposited in the nationalised bank in terms of the order of this Court dated 18th November 2011 shall stand disbursed in terms of the present decree.
The judgment and decree of the trial court is modified only to the extent as aforesaid. The rest of the division of shares as granted by the trial court is undisturbed.
Registry to draw up the decree accordingly.
Both the appeals are accordingly allowed.
Sd/-
JUDGE Sd/-
JUDGE RK/-