Karnataka High Court
Ramchandra Yallappa Patil vs Laxmi W/O. Nagoji Patil on 25 June, 2020
IN T HE HIGH COURT OF KAR NAT AKA
D HAR W AD BE NCH
DA TED THIS THE 2 5 T H DA Y OF JU NE, 2 020
B EF OR E
THE HON'B LE MR . J U S TICE SA CHIN S HANKAR MA GA DU M
R .S.A.NO.100337/2014 (P AR.)
BETWEE N :
1. S HR I R A MCHA DRA YA LLA PPA PA TIL
A GE : 82 YEA R S , OCC: A GR ICU LTUR E,
R / O INA M BA DAS - 591 108,
TA LUKA & DIS T: B ELGA U M.
2. S HR I S HA NKAR R AMCHA NDR A PATIL,
A GE : 50 YEA R S , OCC: A GR ICU LTUR E,
R / O INA M BA DAS - 591 108,
TA LUKA & DIS T: B ELGA U M.
3. S HR I S A DA NA ND RA M CHA NDRA PA TIL,
A GE : 48 YEA R S , OCC: A GR ICU LTUR E,3
R / O INA M BA DAS - 591 1 08,
TA LUKA & DIS T: B ELGA U M.
... APPELLA NTS
(B Y SR I AK S HA Y A .KA TTI, A DVOCA TE.)
AND :
1. S MT.LAX MI W/O NA GOJ I PA TIL ,
A GE : 5 3 YEA R S , OCC: A GR ICULTUR E,
R /O INA M BA DAS 591 10 8,
TA LUKA & DIS T: B ELGA UM .
2. S HR I V ASA NT NA GOG I PA TIL ,
A GE : 4 3 YEA R S , OCC: A GR ICULTUR E,
R /O INA M BA DAS 591 10 8,
TA LUKA & DIS T: B ELGA UM .
3. S MT.GA NGU W/O LAX MAN PA TIL,
A GE : 5 8 YEA R S , OCC: HOUS EHOLD,
R /O INA M BA DAS 591 10 8,
TA LUKA & DIS T: B ELGA UM .
4. S MT.LA TA W/O V INA YAK PA TIL,
A GE : 4 1 YEA R S , OCC: HOUS EHOLD,
R /O SA DAS HIV NAGA R , B ELGA U M-59 0 002.
2
5. S MT.GEETA CHENGA PPA SA MB R EKAR ,
A GE : 3 8 YEA R S , OCC: HOUS EHOLD,
R /O KAR LE 590 0 14,
TA LUKA & DIS T: B ELGA UM .
S HR I MA LLA WA W/O IR A PPA HA JA GOLKAR
S INCE DECEA S ED BY HER LR S .,
6. S HR I KR IS HNA IR APPA HA JA GOLK AR,
A GE : 4 4 YEA R S , OCC: A GR ICULTUR E,
R /O INA M BA DAS -59 1 108.
TA LUKA & DIS T: B ELGA UM .
7. S HR I GU NDU IR A PPA HA JA GOLKA R ,
A GE : 4 3 YEA R S , OCC: A GR ICULTUR E,
R /O : INA M BA DA S-591 1 08,
TA LUKA & DIS T: B ELGA UM .
8. RA NUBA I D/O IR A PPA HA JA GOLKA R ,
A GE : 2 7 YEA R S , OCC: HOUS EHOLD,
R /O K ONEWA DI-5 91 108 ,
TA LUKA & DIS T: B ELGA UM .
9. S MT.TU LA SABA I W/O R A MA K INEK AR ,
A GE : 6 9 YEA R S , OCC: HOUS EHOLD,
R /O KAR LE-5 9001 4,
TA LUKA & DIS T: B ELGA UM .
10. S MT.GOU RA WA W/O MA LLA PPA S ADAVARK AR ,
A GE : 6 7 YEA R S , OCC: HOUS EHOLD
R /O MORA B -591 317,
TA LUKA & DIS T: B ELGA UM .
11. S HR I V ITHA L YA LLAPPA PA TIL,
A GE : 7 0 YEA R S , OCC: A GR ICULTUR E,
R /O INA M BA DAS
TA LUKA & DIS T: B ELGA UM
NOW R ES IDING A T R ENUKA NIV AS ,
KA ILA S NA GAR , ASS ONORA -40 3503 .
BA RDES GOA .
12. S HR I CHA NDRAKA NT R A MACHANDRA PATIL,
A GE : 5 2 YEA R S , OCC: A GR ICULTUR E,
R /O INA M BA DAS -59 1 108,
TA LUKA & DIS T: B ELGA UM .
... R ES PONDENTS
(B Y SR I A .G.MU LAWA DMA TH, A DV . FOR R .1 TO R .5.)
(NOTIC E TO R .6 TO 1 2 : S ERV ED)
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TH IS R EGU LAR SECOND A PPEAL IS FILED U NDER
S ECTION 100 OF T HE CODE OF CIV IL PR OCEDURE A GA INS T
THE JU DGM ENT A ND DECR EE DA TED 16 .0 4.2 014 PASS ED B Y
THE V A DDITIONA L DIS TR ICT & S ES SIONS JUDGE, B ELGA UM
IN R .A .NO.1 34/2 013 A ND TO S ET AS IDE THE J UDGM ENT
A ND DECR EE DATED 12.02.20 13 PAS S ED B Y THE II
A DDITIONA L S ENIOR CIV IL JU DGE, B ELA GA V I IN
O.S .NO.9/ 2002 .
TH IS A PPEA L COMING ON F OR ADM IS S ION, TH IS DA Y,
THE COU R T DELIV ER ED THE FOLLOWING:
: JUDGMENT :
The top noted second appeal is filed by defendant Nos.1, 3 and 4 challenging the judgment and decree dated 16.04.2014 passed by the V Additional District and Sessions Judge, Belgaum in R.A.No.134/2013 and judgment and decree dated 12.02.2013 passed by the II Additional Senior Civil Judge, Belgaum in O.S.No.9/2002, wherein both the Courts have concurrently negatived the plea of partition set by the appellants/defendants and have decreed the suit for partition allotting legitimate share to respondent Nos.1 to 5-plaintiffs.
2. The facts leading to the top noted second appeal are as under:
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Respondent Nos.1 to 5-plaintiffs filed a suit by specifically contending that the propositus Yallappa was an agriculturist and he owned vast extent of agriculture lands both as the owner as well as tenant. It is specifically averred in the plaint that the said propositus Yallappa passed away on 21.06.1986 leaving behind his widow Subhadra, who later passed away on 01.03.1988. Respondent Nos.1 to 5-plaintiffs further averred in the plaint that the propositus Yallappa had four sons and three daughters. It is the specific case of the plaintiffs that they along with defendants constitute undivided joint Hindu family and the suit properties are the joint family ancestral properties and there is no partition in the suit schedule properties.
3. On receipt of summons, the present appellant No.1-defendant No.1 filed written statement and stoutly denied the entire averments made in the plaint. Appellant No.1-defendant No.1 took a specific contention in the written statement 5 that there was oral partition and in the said oral partition the properties were distributed among the members of the joint family. Appellant No.1- defendant No.1 also furnished schedule indicating the mode of partition. Further a contention was also taken by appellant No.1-defendant No.1 that propositus Yallappa retained some properties in family partition and later he has bequeathed those properties in favour of the appellant No.1- defendant No.1 as per Will dated 17.03.1986.
4. Defendant Nos.2 to 4 filed a memo adopting the written statement filed by defendant No.1.
5. From the records, it is forthcoming that the plaintiffs sought for amendment to the plaint schedule, which was permitted by the Court below and to this amendment plaint, it appears appellant No.1/defendant No.1 has filed additional written statement on 15.11.2012.
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6. It is also relevant to note that the original defendant No.5, defendant No.6 and defendant No.7 who are the daughters of propositus Yallappa also filed suit for partition and separate possession in O.S.No.170/2001, which was clubbed with the present suit.
7. The Trial Court based on the rival contentions raised by the parties, framed the following issues.
1. Do the plaintiffs prove that the 'B' schedule properties are the joint family properties and the 'C' schedule properties are the ancestral properties and they are in joint possession of the same along with the defendants?
2. Do defendant Nos.1 to 4 prove that the genealogy furnished as per schedule 'A' by the plaintiffs is incomplete?
3. Do the defendant Nos.1 to 4 prove that suit 'B' and 'C' schedule properties are incorrectly described? 7
4. Do defendant Nos.1 to 4 prove that the lands in R.S.No.2 and R.S.no.47 are not the properties belonging to the family of the parties?
5. Do defendant Nos.1 to 4 prove that the propositus of the family Yallappa Nagoji Patil effected and oral partition in the year 1971 between himself and his family members and that the properties were allotted to the said propositus and defendant No.1 as per the schedule given in the written statement?
6. Do defendant Nos.1 to 4 prove that the brothers of defendant No.1 had executed an agreement dated 01.05.1979 in favour of defendant No.1to transfer the lands in favour of defendant No.1, as contended in the written statement?
7. Do defendant Nos.1 to 4 prove that the father of defendant No.1 voluntarily and in a sound state of mind has executed a registered Will dated 17.03.1986 bequeathing the properties detailed in the additional 8 written statement, in favour of defendant No.1?
8. Do the defendant Nos.1 to 4 prove that a partition deed on stamp paper dated 06.02.1987 has come into being between the heirs of the propositus and the original deed is in e custody of defendant No.8?
9. Do defendant Nos.1 to 4 prove that the parties are in respective possession of the properties as per the partition deed dated 06.02.1987?
10. Do defendant Nos.5 to 7 prove that they are entitled to share in the properties?
11. Are the plaintiffs entitled to share in the suit 'B' and 'C' schedule properties? If so, to what extent?
12. What Order or decree?
8. The parties to the suit have led in evidence and have relied on voluminous documents. The Trial Court on appreciation of oral and documentary evidence, has held that Schedule- 9 C properties are joint family ancestral properties. While examining schedule-B properties under Issue No.1, the Trial Court held that they are the tenanted properties. As such defendant Nos.5 to 7 who are married daughters would not come within the definition of family as defined under Karnataka Land Reforms Act.
9. The Form No.7 was filed by appellant No.1-defendant No.1 along with his three brothers under separate applications. These applications were filed during the life time of propositus Yallappa seeking grant of occupancy rights.
10 The Land Tribunal granted occupancy rights jointly to all the four sons as per Ex.P.17. Insofar as these Schedule-B properties are concerned, appellant No.1/defendant No.1 is asserting absolute ownership on the premises that, though occupancy rights were granted by the Land Tribunal jointly, since the other three brothers were not in a position to pay occupancy price, he alone has paid occupancy and there was an 10 agreement by the other three brothers and thereby agreed to relinquish their shares. Since there is absolutely no evidence forthcoming, both the courts in absence of evidence to this effect has negatived the contention of appellant No.1- defendant No.1.
11. The Trial Court while meticulously examining the evidence led in by the plaintiffs and rebuttal evidence adduced by the present appellants-defendants in context of Issue No.5, has recorded a categorical finding that the appellant No.1-defendant No.1 has changed his narration in regard to partition. In the written statement, appellant No.1-defendant No.1 has set up a plea of oral partition. The Trial Court has recorded a categorical finding that, though a plea of oral partition is set up, particulars are not furnished.
12. Thereafter it appears appellant No.1- defendant No.1 would set up a written partition deed dated 06.02.1987. Appellant No.1-defendant 11 No.1 to substantiate his case indicating severance, though relied on these documents, has failed to produce the original copy. The explanation offered by appellant No.1-defendant No.1 that it is in the custody of defendant No.8, is not established and this contention is negatived by the Trial Court.
13. The Trial Court has also taken judicial note of the extent of lands held by plaintiffs and defendants family and has come to the conclusion that, in the background of vast extent of lands held by the family of plaintiffs and defendants, it is obvious and quite customary that exclusive properties would be managed by the branches of the family. This would at the most indicate that, to manage the properties an arrangement is made by the family. The Trial Court was further of the view that beyond an arrangement, nothing more can be inferred in view of the main family members cultivating a specific land.
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14. Appellant No.1-defendant No.1 has also set up by a Will as per Ex.D.25 and has contended that he has succeeded to this properties covered under the Will. A contention is taken by appellant No.1-defendant No.1 that, these properties covered under the Will were retained by propositus Yallappa and he being the absolute owner of these properties and bequeathed in favour of appellant No.1-defendant No.1.
15. The Trial Court has meticulously examined the material evidence on record and has come to the conclusion that essential ingredients and requirements of proving the Will, were not met out by appellant No.1-defendant No.1. Neither he has examined the attesting witnesses nor the scribe. In absence of compliance of requirement of law under Section 68 of Evidence Act and Section 63 of Indian Succession Act, the Trial Court has disbelieved the Will.
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16. The Trial Court, on appreciation of oral and documentary evidence has come to the conclusion that there is no severance in the family, the suit schedule-C properties are joint family ancestral and has accordingly proceeded to quantify the share and accordingly suit is decreed.
17. The suit filed by the daughters in O.S.No.170/2001 is dismissed and confirmed by Appellate Court in R.A.No.133/2013. But it is relevant to note that the Trial Court has quantified the share of daughters notionally in O.S.No.9/2002.
18. The appellants/defendants being aggrieved by the judgment and decree of the Trial Court, preferred an appeal before the First Appellate Court in R.A.No.134/2013. The lower appellate Court on re-appreciation of oral and documentary evidence, has concurred with the reasonings assigned by the Trial Court. The First Appellate Court on re-appreciation, has recorded a categorical finding that some stray sentences 14 elicited from the mouth of PW.1 in cross- examination would not come to the aid of appellants-defendants and this stray admission would not establish disruption in the family of appellants and respondents.
19. The Appellate Court being a final fact finding Authority, on meticulously re-appreciating the entire evidence on record has proceeded to dismiss the appeal.
20. The present appellants are before this Court questioning the concurrent finding of the Court below.
21. I have heard learned counsel for the appellants at length and also learned counsel appearing for the respondents.
22. Having examined the finding recorded by the Courts below, I am of the view that the judgment and decree of the Courts below does not suffer from any infirmities. Appellant 15 No.1/defendant No.1 having set up oral partition, has failed to prove the same in accordance with law. There is absolutely no rebuttal evidence led in by appellant No.1/defendant No.1 to indicate that there is a severance in the joint suit schedule-C properties. This Court has to take a judicial note of the fact that, the appellant has set up two partitions, one is oral partition of the year 1971 and another partition under written document dated 06.02.1987. Though defendants are at liberty to take conflicting defences, but in the present set of facts the conflicting defences set up by the appellants-defendants would virtually negate the theory of partition set up by the appellants/ defendants. Having set up two partitions on different dates, the appellants before this Court by way of additional evidence, wants to rely on one more partition and in support of their contention have produced the copy of mutation dated 20.01.2001 indicating partition among male members of family. A party guilty of remissness in 16 the Lower Court, is not entitled to the indulgence of being allowed to give further evidence under this rule. Since daughters are not party to the alleged partition of the year 2001, the additional document has no relevancy and would in no way facilitate this Court to examine the same under Section 100 of CPC. Though this court has power to take cognizance of question of law cutting at root of the subject matter in controversy, but in the present case on hand, the additional evidence sought to be relied by appellate cannot be looked into.
23. Relying on this additional document the learned counsel for the appellants would make a feeble attempt by contending that, this additional document would go to the root of the case and would indicate that there is a severance in the family. This Court on prima facie on perusal of the mutation, would find that there is no allotment to the daughters. In that view of the matter, the additional evidence cannot be even looked into 17 under the principle of sufficient cause. In that view of the matter, this Court is of the view that the grounds urged and the substantial questions of law framed in the appeal memo cannot be treated as substantial questions of law, the appeal being devoid of merits is dismissed.
24. Consequently, I.A.No.2/2018 filed seeking production of additional documents does not survive for consideration and the same is rejected.
Sd/-
JUDGE EM /-