Karnataka High Court
Saraswati vs Totamma @ Lakshmibai on 14 February, 2025
Author: M.G.S.Kamal
Bench: S.G.Pandit, M.G.S.Kamal
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RFA No. 200130 of 2017
C/W RFA.CROB No. 200002 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE S.G.PANDIT
AND
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR FIRST APPEAL NO. 200130 OF 2017 (PAR)
C/W
RFA CROSS OBJECTOR NO. 200002 OF 2021
IN RFA NO 200130/2017
BETWEEN:
1. SARASWATI
W/O CHANNABASAPPA DODDER,
AGED ABOUT 62 YEARS,
OCC:HOSUEHOLD,
R/O CHINTAPALLI, TQ.CHINCHOLI,
DIST.KALABURAGI.
Digitally signed 2. BASAWANAPPA
by SUMA B N
Location: High
S/O CHANNABASAPPA DODDER,
Court of AGED ABOUT 37 YEARS,
Karnataka
OCC:PANSHOP,
R/O NAGAREDDY PATIL,
EX MLA HOUSE, SEDAM.
3. SIDDANNA
S/O CHANNABASAPPA DODDER
AGED ABOUT 32 YEARS,
OCC:AGRICULTURE,
R/O CHINTAPALLI, TQ.CHINCHOLI,
DIST.KALABURAGI.
4. IRAMMA W/O NAGASHETTY SHETTY
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RFA No. 200130 of 2017
C/W RFA.CROB No. 200002 of 2021
AGED ABOUT 34 YEARS,
OCC:HOUSEHOLD,
R/O NEAR PANDURANGA TEMPLE,
SEDAM.
...APPELLANTS
(BY SRI. SHARANABASAPPA M PATIL,ADVOCATE FOR
SRI. SUDARSHAN H.B., ADVOCATE AND
SRI. PRASHANT P. KORALLI., ADVOCATE FOR A3
SRI. N.B. DIWANJI ADVOCATE FOR A1, A2 AND A4)
AND:
1. TOTAMMA @ LAKSHMIBAI
W/O SIDRAM GADIGANOOR,
D/O BASAWANAPPA,
AGED ABOUT 52 YEARS,
OCC HOUSEHOLD,
R/O LODHA, TQ AND DIST.BIDAR,
NOW RESIDING AT HYDERABAD - 585 401.
2. KAMALABAI W/O BASAWARAJ
D/O BASAWANAPPA HELIMANI,
AGED ABOUT 50 YEARS,
OCC:HOUSEHOLD,
R/O MEENHABAL, TQ.SEDAM,
DIST.KALABURAGI - 585 222.
...RESPONDENTS
(BY SRI. AMEETKUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI. GANESH S. KALBURAGI,ADVOCATE FOR
SRI. ANANT JAHAGIRDAR., ADVOCATE AND
SRI. DESHPANDE G.V., ADVOCATE FOR RESPONDENTS)
THIS RFA FILED U/S 96 R/W U/O 41 RULE 1 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 22.09.2017
PASSED IN O.S.NO. 37/2015 PENDING ON THE FILE OF THE
SENIOR CIVIL JUDGE AT CHINCHOLI WHEREIN, THE SUIT
WAS PARTLY DECREED.
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RFA No. 200130 of 2017
C/W RFA.CROB No. 200002 of 2021
IN RFA CROB NO. 200002/2021
BETWEEN:
1. TOTAMMA @ LAKSHMIBAI
W/O SIDRAM GADIGANOOR
D/O BASAWANAPPA
AGED ABOUT 55 YEARS
OCC:HOUSEHOLD
R/O LADHA, TQ CHINCHOLI
DIST : KALABURAGI.
2. KAMALABAI
W/O BASAWARAJ
D/O BASAWANNAPPA HALIMANI
AGED ABOUT 53 YEARS,
OCC:HOUSEHOLD
R/O MEENHABAL, TQ CHINCHOLI
DIST : KALABURAGI.
...CROSS OBJECTORS
(BY SRI. AMEETKUMAR DESHPANDE SENIOR COUNSEL FOR
SRI. GANESH S. KALBURGI., ADVOCATE
SRI. ANANT S. JAHAGIRDAR., ADVOCATE
SRI. DESHPANDE G.V. ADVOCATE FOR CROSS
OBJECTORS)
AND:
1. SARASWATI
W/O CHANNABASAPPA DODDER,
AGED ABOUT 65 YEARS,
OCC:HOSUEHOLD,
R/O CHINTAPALLI, TQ.CHINCHOLI,
KALABURAGI 585 307.
2. BASAWANAPPA
S/O CHANNABASAPPA DODDER,
AGED ABOUT 40 YEARS,
OCC:PANSHOP,
R/O NEAR NAGAREDDY PATIL,
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RFA No. 200130 of 2017
C/W RFA.CROB No. 200002 of 2021
EX MLA HOUSE,
CHINTAPALLI
TQ SEDAM - 585 222.
3. SIDDANNA
S/O CHANNABASAPPA DODDER
AGED ABOUT 35 YEARS,
OCC:AGRICULTURE,
R/O CHINTAPALLI,
TQ SEDAM - 585 222.
4. IRAMMA W/O NAGASHETTY SHETTY
AGED ABOUT 37 YEARS,
OCC:HOUSEHOLD,
R/O NEAR PANDURANGA TEMPLE,
SEDAM - 585 222.
...RESPONDENTS
(BY SRI. N.B. DIWANJI., ADVOCATE FOR R1, R2 AND R4;
R3 IS SERVED)
THIS RFA CROB FILED U/O 41 RULE 22 OF CPC, PRAYING TO
ALLOW THIS CROSS OBJECTION AND ACCORDINGLY MODIFY THE
JUDGMENT AND DECREE DATED:22.09.2017 PASSED IN OS.NO.37
2015 BY THE SENIOR CIVIL JUDGE, CHINCHOLI INSOFAR AS THE
FINDING ON ISSUE NOS.2 AND 3 ARE CONCERNED AND THE
FINDING THAT THE LAND BEARING SY.NO.87 OF CHINTAPALLI
VILLAGE OF CHINCHOLI TALUKA IS THE INCESTRAL PROPERTY AND
THE FURTHER FINDING THAT THE PLAINTIFFS ARE NOT
COPARCENERS IS CONCERNED, AND TO FURTHER DECREEE THE
SUIT OF THE PLAINTIFFES IN TOTAL THEREBY GRANING 1/3RD
SHARE EACH IN FAVOUR OF THE PLAINTIFFS NO.1 AND 2 IN
RESPECT OF ALL THE SUIT SCHEDULE PROPERTIES AND TO
GRANTANY OTHER APPROPRIATE ORDERS AS MAY BE DEEMED FIT
IN THE FACT6S AND CIRCUMSTANCES OF THE CASE.
THIS APPEAL AND RFA CROB, COMING ON FOR ORDERS,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.G.PANDIT
AND
HON'BLE MR. JUSTICE M.G.S.KAMAL
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RFA No. 200130 of 2017
C/W RFA.CROB No. 200002 of 2021
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL) The present appeal in RFA No.200130/2017 is filed by the defendants in O.S.No.37/2015, aggrieved by the Judgment and decree dated 22.09.2017 passed therein on the file of Senior Civil Judge at Chincholi. RFA Crob No.200002/2021 is filed by the plaintiffs in the said suit aggrieved by the very same Judgment and decree to the extent of quantum of share granted to them.
2. Brief facts of the case are:
2.1 That one Sri.Basawanappa, the propositus and his wife Siddamma had a son by name Sri.Channabasappa and two daughters namely Smt.Totamma and Smt.Kamalabai, the plaintiffs 1 and 2 respectively. Said Sri.Basawanappa was the absolute owner of schedule properties namely Sy.No.24 situated in village Rudnoor of Taluk Chincholi being his ancestral property and Sy.No.87 of village Chintapalli Taluk having been inherited by him through paternal aunt who died issueless.-6-
NC: 2025:KHC-K:1069-DB RFA No. 200130 of 2017 C/W RFA.CROB No. 200002 of 2021 2.2 The said Sri.Basawanappa passed away when the plaintiff and their brother Channabasappa were minors. Thereupon the property was looked after and managed by their mother Smt.Siddamma. Brother of the plaintiffs passed away leaving behind his wife defendant No.1 and children defendant No.2 and 3. Plaintiffs and defendants have been thus in joint possession and enjoyment of the suit schedule properties. After demise of brother of the plaintiffs, defendants taking undue advantage of their names in the revenue records are trying to alienate the suit schedule properties denying the share and entitlement of the plaintiffs resulting in plaintiffs filing suit in O.S.No.37/2015 seeking relief of partition and separate possession of their 1/3rd share each in the suit schedule properties.
2.3 The said suit is resisted by defendants contending that on the demise of the father of plaintiffs, husband of defendant No.1 and father of defendants 2 to 4 was managing the suit properties till his death. Marriage of plaintiff No.2 was performed by husband of defendant No.1 raising hand loan. That after the death of the husband of defendant No.1 relationship strained. In the year 1980 at the time of Ugadi -7- NC: 2025:KHC-K:1069-DB RFA No. 200130 of 2017 C/W RFA.CROB No. 200002 of 2021 there was a oral partition entered into between the plaintiffs, mother of the plaintiffs and defendants in which plaintiffs and their mother were given gold and silver ornaments and cash of Rs.25,000/- each in consideration of which they relinquished their respective shares in favour of the defendants. Defendant No.1 also agreed to repay the private loans which has been raised for family necessities. That the mutation of revenue records in the name of defendants is based on the said oral partition which has not been objected to by the plaintiffs. Hence, sought for dismissal of the suit.
3. Trial Court framed following issues:
"1. Whether plaintiffs prove that the suit schedule properties are ancestral and joint family properties of plaintiffs and defendants?
2. Whether plaintiffs are entitled for relief sought for?
3. What order or decree?"
4. Plaintiff No.2 examined himself as PW-1 and exhibited 13 documents marked as Ex.P1 to P13. Defendant No.1 examined herself as DW-1 and two additional witnesses as DW- 2 and DW-3. On appreciation of evidence trial Court answered issue No.1 in the affirmative and issue No.2 partly in the -8- NC: 2025:KHC-K:1069-DB RFA No. 200130 of 2017 C/W RFA.CROB No. 200002 of 2021 affirmative. Consequently decreed the suit holding that the plaintiffs are entitled for 1/6th share in the suit schedule properties. Aggrieved by the said Judgment and decree defendants are before this Court in RFA No.200130/2017 while plaintiffs by filing cross objection in RFA Crob No.200002/2021.
5. Learned counsel for appellants/defendants reiterating the grounds urged in the memorandum of appeal submits that the father and mother of the plaintiffs passed away 30 years ago and that there was a oral partition amongst family members in terms of which share of plaintiffs had been given by way of cash and gold ornaments and the plaintiffs had relinquished their share in favour of defendants as such present suit was not maintainable.
6. In the cross objection, the plaintiffs have contended that the trial Court grossly erred in holding the plaintiffs are not the coparceners as on the date of commencement of Section 6 of the Hindu Succession Act which confers and recognizes daughters being coparceners from the date of their birth and being entitled for 1/3rd share each in the joint family properties. -9-
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7. Sri.Ameet Kumar Deshpande, learned Senior counsel appearing for cross objectors referring to paragraph 129(iii) in the case of Vineeta Sharma Vs Rakesh Sharma and others1 submits that the question is no more res-integra, in that daughters are entitled to equal share irrespective of the date of death of the father. Thus, he submits the issue of entitlement of share settled down by Apex Court and that the cross objectors are entitled for equal share in the suit schedule properties. He further submits that though the trial Court has declined to accept the case of the defendants regarding oral partition, in the light of the provisions of Section 6 ought to have granted 1/3rd share each to the plaintiffs and defendants together. Hence, seeks for modification of the Judgment and decree passed by the trial Court.
8. On perusal of records and averments the following points arise for consideration:
"1. Whether the trial Court is justified in decreeing the suit allotting 1/6th share to the plaintiffs?
2. Whether the trial Court is justified in negating the claim of the defendants regarding oral partition?"1
(2020) 9 SCC 1
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9. Relationship between the parties is not in dispute. Suit Properties belonging to the original propositus Sri.Basawanappa and same being inherited by the plaintiffs and defendants as joint family members is also not in dispute. Though in the written statement defendants have set up a plea of oral partition and plaintiffs and their mother relinquishing their rights in lieu of receiving cash and gold ornaments, no acceptable evidence has been produced by the defendant except oral evidence. Settled position of law, relinquishment of share, right, title and interest in immovable property can only be through deed of conveyance duly registered as contemplated under law. Mere entries in the revenue records without the basis on which such entries are made would not confer any title. Trial court having appreciated these aspects of the matter has declined to accept the contention of the defendants and has accordingly answered issues in favour of the plaintiffs.
10. However as seen at paragraph 17 of the impugned Judgment and decree, trial Court relying upon the interpretation of provisions of Section 6 of Hindu Succession Act regarding rights of the daughters in the joint family coparcenary properties as it prevailed then proceeded to allot 1/6th share to
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NC: 2025:KHC-K:1069-DB RFA No. 200130 of 2017 C/W RFA.CROB No. 200002 of 2021 the plaintiffs on the premise of their father was not alive as on 09.09.2005 when the amendment to the Hindu Succession Act was given effect to.
11. The Apex Court in the case of Vineeta Sharma Vs Rakesh Sharma and others (supra) at 129(iii) has held as under:
"(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005."
12. In view of the aforesaid settled position of law we are of the considered view that the impugned Judgment and decree requires to be modified granting equal shares to the plaintiffs with that of defendants together in the suit schedule properties. Points raised are answered accordingly.
Hence, the following:
ORDER Plaintiffs 1 and 2 being the daughters of propositus Sri.Basawanappa are entitled for 1/3rd share in the suit schedule properties while defendants 1 to 4 being the legal representatives of Sri.Channabasappa, son of said
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NC: 2025:KHC-K:1069-DB RFA No. 200130 of 2017 C/W RFA.CROB No. 200002 of 2021 Sri.Basawanappa together are entitled for 1/3rd share in the suit properties.
With the above modification the impugned Judgment and decree dated 22.09.2017 passed in O.S.No.37/2015 is hereby confirmed.
Appeal and Cross Objections are disposed of accordingly.
Sd/-
(S.G.PANDIT) JUDGE Sd/-
(M.G.S.KAMAL) JUDGE SBN List No.: 19 Sl No.: 1