Karnataka High Court
Saraswatamma W/O Late Veerabhadrappa ... vs Dattatreya Adopted S/O Late Shivappa on 30 January, 2023
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 30TH DAY OF JANUARY 2023
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A.No.5359/2012(PAR)
BETWEEN:
1. SARASWATAMMA,
W/O LATE VEERABHADRAPPA,
D/O SARABAIAH,
AGED ABOUT 62 YEARS,
HINDU, AGRICULTURIST,
R/O VENIVEERAPUR VILLAGE,
TALUK AND DISTRICT,
BELLARY - 583 115.
2. RAVIKUMAR,
S/O LATE VEERABHADRAPPA,
SINCE DEAD BY LRs.,
2(a) SMT. B.KALAVATHI,
W/O LATE B.RAVIKUMAR,
AGED ABOUT 34 YEARS,
2(b) KUMARI B.VAISHNAVI,
D/O LATE B.RAVIKUMAR,
AGED ABOUT 12 YEARS,
2(c) JAHNAVI KUMARI,
D/O LATE B.RAVIKUMAR,
AGED ABOUT 11 YEARS,
2(d) B.VRUSHAVENDRA KUMAR,
S/O LATE B.RAVIKUMAR,
2
AGED ABOUT 8 YEARS,
2(e) B.DEVISRI PRASAD,
S/O LATE B.RAVIKUMAR,
AGED ABOUT 12 YEARS,
A-2(b) TO 2(e) ARE MINORS,
REPRESENTED BY THEIR NATURAL
MORTHER AND GUARDIAN SMT.B.KALAVATHI,
ALL ARE R/O VENIVEERAPURA VILLAGE,
BALLARI TALUK AND DISTRICT.
3. JAYAMMA @ JAYAKUMARI,
D/O LATE VEERABHADRAPPA,
W/O HULIGUNDACHARI
AGED ABOUT 41 YEARS,
HINDU, AGRICULTURIST,
R/O RATNA VILLAGE,
TALUK: PATTIKONDA,
DISTRICT:KURNOOL-518 380.
4. ARUNA @ ARUNAKUMARI,
D/O LATE VEERABHADRAPPA,
AGED ABOUT 35 YEARS,
HINDU AGRICULTURIST,
R/O RATNA VILLAGE,
TALUK: PATTIKONDA,
DISTRICT: KURNOOL - 518380.
STATE: A.P.
5. LATE SAVITRAMMA,
W/O LATE SHIVAPPA,
SINCE DEAD
LRs., ARE ALREADY ON RECORD,
I.E., SMT.SHAMBHAVI,
6 SMT. SHAMBHAVI,
W/O HANUMANTHACHAR,
SINCE DEAD BY LRs.,
6(a) PURUSHOTHAMA.K.
3
S/O HANUMANTHAPPA,
AGED ABOUT 35 YEARS,
R/O MURADI VILLAGE,
RAYADURGA TALUK,
ANANTPUR DISTRICT,
STATE: A.P.
6(b) RUDRAMMA,
D/O LATE SHAMBHAVI,
AGED ABOUT 32 YEARS,
R/O KANKUPPE VILLAGE,
MONAKALMURU TALUK,
CHITRADURGA DISTRICT.
... APPELLANTS
(BY SRI.B.CHIDANANDA, ADVOCATE)
AND:
1. DATTATREYA,
ADOPTED, S/O LATE SHIVAPPA,
AGED ABOUT 45 YEARS,
HINDU GOLDSMITH,
CARPENTER,
R/O VENIVEERAPUR VILLAGE,
TALUK AND DISTRICT
BELLARY - 583 115.
2. NAGALINGACHAR,
SINCE DEAD BY LRs.,
K.SUDHAKAR,
AGED ABOUT 50 YEARS,
SINCE DEAD BY LRs.,
2(a) SMT.K.RAJESHWARI,
W/O LATE K.SUDHAKAR,
AGED ABOUT 48 YEARS,
R/O D.No:66, WARD No:19,
3RD CROSS, NEAR SHARADA VIDYA PEETH,
SARSUBAI COMPUND,
4
BELLARY - 583 102.
2(b) SMT.K.NETHRAVATHI,
D/O K.SUDHAKAR,
W/O K.A.RUPESH,
AGED ABOUT 27 YEARS,
D.No.922, BRAHMINS STREET,
NEAR DODDA ANJINEYA TEMPLE,
KOLAR - 563 101.
3. LATE MANAPPA
SINCE DEAD BY HIS LRs.,
ARE ALREADY ON RECORD
I.E. DATTATREYA (R-1)
3(a) K.VIJAYKUMAR,
S/O SURYANARAYAN,
AGE 44 YEARS,
3(b) T.S.SUJATA,
AGE 40 YEARS,
3(c) K.KRISHNA,
AGE 36 YEARS,
R-3(a) TO (c) ARE R/O H.No.40,
WARD No.27, OLD MARKET ROAD,
COWL BAZAR, BALLARI.
4. B.NARAYANAPPA,
SINCE DEAD BY LRs.,
4(a) BADIGER KALAMMA,
W/O LATE B.NARAYANAPPA,
AGED ABOUT 70 YEARS,
4(b) BADIGER PANDURANGACHARI,
S/O B.NARAYANAPPA,
AGED ABOUT 48 YEARS,
4(c) BADIGER UMAMAHESH,
5
S/O B.NARAYANAPPA,
AGED ABOUT 42 YEARS,
4(d) BADIGER BHEEMAPPA,
S/O LATE B.NARAYANAPPA,
AGED ABOUT 40 YEARS,
4(e) BADIGER PURUSHOTTAM,
S/O LATE B.NARAYANAPPA,
AGED ABOUT 35 YEARS,
4(f) KUMARI BADIGER CHAYADEVI,
D/O B.NARAYANAPPA,
AGED ABOUT 38 YEARS,
R-4(a) TO (f) ARE
R/O VENIVEERAPUR VILLAGE,
BALLARI TALUK AND DISTRICT.
... RESPONDENTS
(BY SMT. V.VIDYA IYER, ADVOCATE FOR R-1;
SRI.ABHISHEK L.KALLED, ADVOCATE FOR R-2(a & b);
SRI. R.H.ANGADI, ADVOCATE FOR R-3(a)(i TO iii);
SRI.T.BASAVANGOUD ADV., FOR R-4(b TO f);
VIDE ORDER DATED:04.03.2015, R-4 (b TO f) ARE LRS
OF DECEASED R-4(a))
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED:24.09.2003
PASSED IN RA No.3/1995 ON THE FILE OF PRINCIPAL CIVIL
JUDGE (SR. DN) BELLARY, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT DATED:13.01.1995 AND THE
DECREE PASSED IN O.S.No.284/1985 ON THE FILE OF THE
PRINCIPAL MUNASIFF, BELLARY PARTLY DECREEING THE
SUIT FOR PARTITION AND DECLARATION.
THIS APPEAL COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
1. The facts that could be discerned from the proceedings are as follows:
2. The geneology of the family is as under:
GENEALOGY Badiger Manappa (Died) Eramma (wife) (Died) S1 S2 Sharabanna(Died) Shivappa (Died) on 14-05-1964 Papamma Wife (Died) Wife Savithramma (Died) 10-07-1988 Defd No.8 Nangalingappa Manappa Narayannappa Veerabhadrappa (Died) (Died) (Died) (Died) Shambavi (Died) Defdt No.1 Defdt No.2 Defdt No.3 Defd No:9 Wife saraswathamma K Sudhakar Dattatreyya Kalamma Wife (Defd No:4) 1. Purushothamma Son (Died) 43 Yrs R 4(A) 2. Rudramma Only Son Defdt No.2
1.Ravikumar D5
1. K Rajeshwari 1. B.Pandurangachari 2.Jayamma D6
2. Netravati R 4 (b) 3.Arunakumari D7
2. B Uma Mahesh R 4 (c)
3. B.Bhimappa R 4(d)
4. B.Purashothamma R 4 (e)
5. B.Chayadevi R 4(e)
3. The adopted son of Shivappa and Savithramma i.e., Dattatreya filed the suit for setting aside the partition effected amongst his family members on 7 09.05.1975 and for a partition and allotment of his share in relation to the suit property.
4. As could be seen from the genealogy, Dattatreya was the son of Manappa, who had been given in adoption to Manappa's paternal uncle Shivappa. The adoption was effected through a registered Adoption Deed dated 25.03.1967. By virtue of the fact that the adoption was by means of a registered instrument, the same cannot be questioned and would have to be accepted.
5. It was the case of Dattatreya that the partition effected on 09.05.1975 could not be sustained as it had been entered into in his absence and when he was a minor and more importantly, because it was inequitable. Dattatreya contended that since the partition was inequitable, the same had to be set aside and the properties ought to be partitioned, in which event, he was entitled to half a share in the suit properties by 8 virtue of being the only son of Shivappa and Savithramma.
6. The case of the defendants i.e., the branch of Sharbanna was that a registered partition had been entered into on 09.05.1975 in the background of the fact that there was huge debts in the family and in order to discharge those debts, out of approximately 65 acres of land, 29 acres had been allotted to Manappa, the biological father of Dattatreya and the remaining three branches of Sharbanna i.e., Nangalingappa, Narayanappa and Veerabhadrappa were granted approximately, the same extent of 8 to 9 acres and therefore, it could not be contended that the partition was inequitable.
7. It is their contention that Manappa, who was allotted the bulk of the property i.e., nearly 50% of the entire property, had sold the entire extent and Dattatreya, despite being aware of the fact that his biological father Manappa had been allotted 50% of the 9 suit properties and had alienated the entire extent that had been allotted to him, chose to accept the alienations by giving up his claim over them. According to the other three branches of Sharbanna, by acceptance of allotment of larger extent of share to Manappa and the consequential alienations made by him, Dattatreya was essentially giving up the claim for reopening the partition because he could not have put forth the plea that the Partition Deed insofar as it related to allotment to his biological father was just and only the partition effected amongst the other sharers under the Partition Deed was unjust.
8. It is also contended that it is not in dispute that even according to Dattatreya, he was born on 02.02.1964 and he would thus have attained majority on 02.02.1982 and would, therefore, have to file a suit on 02.02.1985, but since the suit has been filed on 23.07.1985, the same was barred by limitation. 10
9. It is, therefore, contended by the other three branches of Sharbanna that the Trial Court as well as the Appellate Court had erred in coming to the conclusion that the partition effected in the year 1975 was inequitable and was required to be set aside and that the partition by metes and bounds, in which, the branch of Shivappa was granted half a share in the suit properties was wholly incorrect.
10. This Court admitted the appeal to consider the following substantial question of law:
"Whether Dattatreya who was given away in adoption to Savithramma would be entitled to seek for reopening of partition effected on 09.05.1975 through registered partition deed to which his adoptive mother was a party on the ground that the same was inequitable or unfair?."
11. The essential plea of Dattatreya was that the Partition Deed dated 09.05.1975 could not be accepted since the same had been entered into behind his back when he was a minor and it was inequitable. 11
12. Smt.V.Vidya Iyer, learned counsel appearing for Dattatreya also contended that Dattatreya would be entitled to succeed to half a share in the entire property i.e., nearly 32 acres out of 65 acres and assuming that his father was also liable for the extent of 16 acres towards discharge of debts, that would still leave an extent of 16 acres to the share of Shivappa, but despite this, only about 8 acres was granted to his mother and therefore, the partition was completely inequitable.
13. In order to come to the conclusion that the partition was inequitable, the relevant admitted facts would have to be considered.
14. As noticed above, under the partition of the year 1975, the other three branches of Sharbanna were granted 8 to 9 acres of land, but the biological father of Dattatreya i.e., Manappa, who also represented the branch of Sharbanna, was granted the lion's share of nearly 29 acres. In this Partition Deed, which is not in dispute, there is a clear recital that Manappa was being 12 allotted a lion's share of nearly 29 acres to enable him to discharge the debts that the family had incurred. It is also to be noticed that Dattatreya's branch i.e., his father Shivappa's branch, being represented by his mother Savithramma, was also allotted 8 acres which is more or less the same as has been granted to other sharers under the Partition Deed dated 09.05.1975. Thus, if the portion allotted to Manappa, the biological father of Dattatreya is excluded, all the other sharers more or less would get the same extent of land under the partition and therefore, it cannot be contended by Dattatreya that the partition per se was inequitable.
15. It is to be noticed here that when the partition was effected, according to the averments in the Partition Deed, the family was reeling under huge debts that had been incurred by the family. In such a situation, if all the persons who were entitled to a share agreed to take a common extent and keep apart 50% of the lands for 13 discharge of the debts, it cannot be said that the partition was in any way inequitable.
16. Smt.Vidya Iyer, learned counsel appearing for Dattatreya relied upon the judgment of the Apex Court in the case of A.V.PAPAYYA SASTRY & OTHERS Vs. GOVERNMENT OF A.P. & OTHERS - (2007) 3 S.C.R. 603 to contend that the judgment and decree obtained by a fraud is a nullity and would have to be treated as a nullity. According to her, the Partition Deed was obtained by fraud and applying the said principle, it would have to be held that the Partition Deed was a nullity. As noticed above, there is neither a plea of fraud nor any evidence to support her contention that the Partition Deed was obtained by playing fraud on Dattatreya's mother Savithramma. In order to succeed on a plea of fraud or undue influence, Order VI Rule 4 of CPC makes it mandatory for the plea and ingredients of fraud or undue influence to be precisely stated. Merely making an allegation that the Partition Deed was obtained by 14 playing fraud or undue influence cannot be accepted. Since neither of them have been done, the said decision would be of no application.
17. Reliance placed on by Smt.Vidya Iyer, learned counsel for Dattatreya on RATNAM CHETTIAR & OTHERS Vs. S.M.KUPPUSWAMI CHETTIAR - (1976) 1 S.C.R. 863 to contend that a partition can be reopened without reference to time. It is to be noticed here that the Apex Court in the said case has stated that a partition could be reopened, if it is found to be unjust and unfair without reference to time. However, Dattatreya has failed to establish that the partition effected between his mother and his uncles was unjust and unfair. As already stated, the biological father of Dattatreya was granted 29 acres and his mother and uncles virtually were granted same extent and this proves that there was no unfairness in dividing the properties after setting aside the land for discharge of debts. This decision has, therefore, no application to the present case.
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18. The other two judgments relied upon by Smt.Vidya Iyer, learned counsel appearing for Dattatreya i.e., in the case of SRI K.IMMANNA Vs. S.NEMOJI RAO & OTHERS -
2020(5) KCCR 982 and in the case of SRI THIMMEGOWDA & OTHERS Vs. SRI HARSHA & OTHERS in RSA.No.50/2014 disposed of on 01.08.2022 would also have no application to the present case, since they relied upon the proposition laid down in Ratnam Chettiar's case (cited supra).
19. It is also to be noticed here that no doubt Dattatreya was a minor aged about 8 years when the partition was effected in the year 1975, but he attained majority in the year 1982 and thus had three years time to institute a suit i.e., on or before 02.02.1985. However, he had chosen to file the suit on 23.07.1985 which would thus bar his suit itself. Even if this element is ignored, the fact that Dattatreya accepted the partition insofar as it related to allotment of half a share in the suit properties to his biological father and chose to 16 restrict his father only to remaining portion, virtually disentitles him from seeking reopening of the partition. If a partition is to be reopened, it would have to be reopened in its entirety and it cannot be reopened in part. In this view of the matter, the judgment and decree of the Trial Court as well as the Appellate Court granting reopening of the partition and ordering a fresh partition cannot be sustained.
20. The question of law is answered holding that Dattatreya could not have sought for reopening of the partition effected on 09.05.1975 under the registered Partition Deed to which his adoptive mother was a party stating that it was inequitable and unfair.
21. It is also to be noticed here that Dattatreya's mother not only participated in the partition, but was also granted the same 8 acres of land as has been allotted to the other three branches of Sharbanna excluding Manappa. If the mother of Dattatreya chose to accept this partition and did not challenge the same, the 17 adopted son cannot be permitted to challenge the same nearly ten years after it had been entered into.
22. The judgment and decree of the Trial Court as well as the Appellate Court are, therefore, set aside. The suit of Dattatreya is dismissed. The second appeal is accordingly allowed.
Sd/-
JUDGE PKS