Karnataka High Court
Sri. Shivayogappa S/O Veerappa ... vs Smt. Girija W/O Parameshwarappa ... on 28 June, 2023
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NC: 2023:KHC-D:6394-DB
RFA No. 100376 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO. 100376 OF 2017 (DEC/PAR)
BETWEEN:
SRI. SHIVAYOGAPPA
S/O. VEERAPPA LIMBIKAI
A/S DHARENEPPAVAR,
AGE: 59 YEARS, OCC: BUSINESS,
R/O: AKSHAYA PARK DELUX, E-102,
GOKUL ROAD, HUBBALLI-580030.
...APPELLANT
(BY SRI. HANUMANTHAREDDY SAHUKAR FOR
SRI B.D. HEGDE, ADVOCATE)
Digitally
signed by
GIRIJA A
BYAHATTI
AND:
Location:
HIGHCOURT
GIRIJA A
BYAHATTI
OF
KARNATAKA- 1. SMT. GIRIJA
DHARWAD
BENCH
Date:
2023.07.12
W/O. PARAMESHWARAPPA LINGADHALLI,
16:02:26
+0530 AGE: 56 YEARS, OCC: HOUSEWIFE,
R/O: H.NO.101, KOTILINGESHWARNAGAR,
BEHIND NEW KSRTC WORKSHOP,
GOKUL ROAD, HUBBALLI-24.
2. SMT. VIJAYA W/O. GANGADHAR KAMMAR,
AGE: 53 YEARS, OCC: HOUSEHOLD,
R/O: FLAT.NO.201, RISHIKA COMFORTS,
VIDYANAGAR, OLD INCOME TAX ROAD,
HUBBALLI-580021.
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NC: 2023:KHC-D:6394-DB
RFA No. 100376 of 2017
3. MRUTYUNJAYA V. LIMBIKAI A/S DHARANEPPANAVAR,
AGE: 49 YEARS, OCC: BUSINESS & AGRICULTURIST,
R/O: F/F, MRUTYUNJAYA SADAN,
BAMMAPUR ONI, CHINDI GALLI,
HUBBALLI-580028.
4. MAHANTESH V. LIMBIKAI A/S DHARANEPPANAVAR,
AGE: 46 YEARS, OCC: BUSINESS & AGRICULTURIST,
R/O: G/F, MRUTYUNJAYA SADAN, BAMMAPUR ONI,
CHINDI GALLI, HUBBALLI-580028.
5. SMT. PUSHPALATA W/O. ARAVIND JAVALI,
AGE: 43 YEARS, OCC: HOUSEHOLD,
R/O: KALYAN NAGAR, 3RD CROSS,
DHARWAD-580007.
6. M/S A. R. TAVARAGERI AND R. K. BELLAD ROLLERS
FLOUR MILLS, BAMMAPUR ONI, HUBBALLI,
BY ITS PARTNERS-580028.
7. SRI. SURESH A TAVARGERI,
AGE: 48 YEARS, OCC: PARTNER OF
M/S A. R. TAVARAGERI AND R. K. BELLAD
ROLLERS FLOUR MILLS, BAMMAPUR ONI,
HUBBALLI-580028
8. SRI. GURUBASAPPA V. LIMBIKAI,
AGE: 65 YEARS, OCC: PARTNER OF
M/S A. R. TAVARAGERI AND R. K. BELLAD
ROLLERS FLOUR MILLS, BAMMAPUR ONI,
HUBBALLI-580028.
...RESPONDENTS
(BY SRI. SUNIL S. DESAI FOR SRI. PRAKASH ANDANIMATH,
ADV.FOR R3 AND R4;
NOTICE TO R1, R2, R5, R6, R7 AND R8 ARE SERVED).
THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CPC, AGAINST THE JUDGMENT AND
DECREE DTD:25.07.2017 PASSED IN O.S NO. 71/2016 ON THE
FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI,
DISMISSING THE SUIT FILED FOR DECLARATION, PARTITION
AND SEPARATE POSSESSION AND PERMANENT INJUNCTION.
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NC: 2023:KHC-D:6394-DB
RFA No. 100376 of 2017
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant challenging the judgment and preliminary decree dated 25.07.2017 passed in O.S.No.71/2016, by the III Additional Senior Civil Judge, Hubballi (hereinafter referred to as 'the trial Court' for brevity).
2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. Appellant is the plaintiff and respondents are the defendants.
3. Plaintiff filed a suit for declaration, partition, separate possession and injunction. It is the case of the plaintiff that, plaintiff is the son of late Veerappa and defendants are his brothers and sisters. Family of plaintiff and defendants consists of movable and immovable properties as shown in Schedule 'B' of the suit, in addition to running of Rollers Flour Mill in the name & style of "M/s -4- NC: 2023:KHC-D:6394-DB RFA No. 100376 of 2017 A.R. Tavargeri & R.K. Bellad" in Bammapur Oni at Hubballi. At no point of time, there was any effective and equitable partition by metes and bounds; there was a document in writing styled as memorandum of partition recorded by the deceased father of the plaintiff on 17.11.1982, at which point of time, defendants were minors and plaintiff was just become major. There was memorandum of partition on 04.10.1994, which was not carried out and this non-compliance was confirmed and one more arrangement within the family was made on 20.04.1992 styled as "Amendment deed" (Watni Patra) and it was also incomplete; again on or around 02.06.1995, one more document was prepared as "Apasat Vatani Durasta Lekh, as per which, on 03.06.1995, an application-cum-varadi was submitted to City Survey Officer to make necessary mutations, but the same was not effectively acted upon. On receipt of notice from the ADLR on 31.07.1995, defendants denied the very rectification deed. The plaintiff incidentally and unfortunately did perform his part of obligations as per the -5- NC: 2023:KHC-D:6394-DB RFA No. 100376 of 2017 terms of Vatani Patra by giving a share in the Mill and the exchange of properties in Vidyanagar etc., and correspondingly, plaintiff is justified in demanding due performance of reciprocal obligations and taking advantage of the writings done in several ways without any consistency, defendants No.3 & 4 sold certain agricultural lands and the sale proceeds and sale consideration entitled to the plaintiff was not paid. Thus, it amounts to fraud, misrepresentation, breach of trust and undue influence played on the plaintiff. The plaintiff is entitled for 8% share in the A. R. Tavargeri & R. K. Bellad Roller Flour Mills, wherein the family of the plaintiff and defendants holds 20% share. The so called allotment said to have been made by defendants No.3 and 4 is not only inequitable but inadequate and negatived his rights in the suit properties as there have been several changes in the so called arrangements over the period, which has resulted in great deal of loss and injustice to the plaintiff. The plaintiff got issued a legal notice on 07.04.2003 demanding 1/3rd legitimate share and defendant No.4 did -6- NC: 2023:KHC-D:6394-DB RFA No. 100376 of 2017 not respond to the said legal notice. In stead of settling the matter, proposed to sell the open land of Mill of the joint family as published in Vijay Vani Kannada daily on 29.11.2015. Therefore the plaintiff is obliged to institute the suit for declaration, partition, possession and injunction.
4. Defendants No.3 & 4 have filed joint written statement denying the averments made in the plaint and further contended that, at the instance of the plaintiff, partition by means of family arrangement was made on 20.04.1992 between Veerappa, Shivayogeppa i.e., plaintiff, Mrutyunjaya, Mahantesh, Girija, Vijaya, Pushpalata and Parwatewwa. Plaintiff made untenable and illegal demands in the allotment of shares. In order to maintain family reputation, again certain modifications were made on 20.06.1996. The lust of the plaintiff did not stop there. He again made illegal demands. In order to avoid misunderstandings, a final settlement by way of adjustment of equities by way of family arrangement was -7- NC: 2023:KHC-D:6394-DB RFA No. 100376 of 2017 arrived at. The said adjustment of equities cum family arrangement was reduced into writing on 21.08.2003. The plaintiff went out of the partnership business. Accounts were settled. The plaintiff collected all that was due to him. Payment is made through cheque. There is no joint family existence. There is severance in the status. There is no partnership firm with the plaintiff as one of its partners. The plaintiff is in the habit of blackmailing the family members and the partnership firm. The suit is one such modus operandi of the plaintiff. It is contended that the plaintiff is a party to the family arrangement dated 20.04.1992 followed by adjustment of equities on 20.06.1996 and 21.08.2003. Without seeking declarations in respect of these events and documents the suit of the plaintiff is not maintainable and prays to dismiss the suit.
5. The trial Court based on the pleadings of the parties, framed the following issues: -8-
NC: 2023:KHC-D:6394-DB RFA No. 100376 of 2017 i. Whether the plaintiff proves that defendant No.3 & 4 not complied the condition and the required performance and it resulted in non- implementation of the partition effected between them and it is inequitable partition?
ii. Whether the plaintiff proves that he is
entitled to have 1/3 share in the suit
property?
iii. Whether defendant No.2 & 4 and 6 to 8
prove that there was already partition and plaintiff went out of the partnership firm by settling the accounts?
iv. Whether the suit is barred by limitation?
v. Whether defendants No.6 to 8 prove that suit
is not maintainable against these
defendants?
vi. Whether the plaintiff is entitled for the relief
claimed in the suit?
vii. What order or decree?
6. The plaintiff in order to substantiate his case, examined himself as PW1 and got marked 19 documents at Exs. P1 to P19. On behalf of the defendants, defendant -9- NC: 2023:KHC-D:6394-DB RFA No. 100376 of 2017 No.3 was examined as DW1, defendant No.7 was examined as DW2 and got marked documents at Exs. D1 to D23.
7. The trial Court after recording the oral and documentary evidence answered issues No.1, 2 and 3 in the negative and issues Nos.3, 4 and 5 in the affirmative and consequently dismissed the suit of the plaintiff. The plaintiff aggrieved by the judgment and decree passed by the trial Court has filed this appeal.
8. Heard the learned counsel for the plaintiff and learned counsel for the defendants.
9. Learned counsel for the plaintiff submits that the trial Court has committed an error in dismissing the suit. He further submits that the trial Court erred in dismissing the suit placing reliance on the memorandum of partition alleged to have been executed by the plaintiff and defendants. He also submits that the parties have not acted upon on the said memorandum of partition. He also
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NC: 2023:KHC-D:6394-DB RFA No. 100376 of 2017 submits that the so called allotment said to have been made by defendants No.3 and 4 is not equitable and negated his right in the suit property as there have been several changes in the so called arrangements over the period, which has resulted in great loss and injustice to the plaintiff. Hence, on these grounds, he prays to allow the appeal.
10. Per contra, learned counsel for the defendants submits that there was oral partition between the plaintiff and defendants and the same was reduced into writing and the plaintiff has affixed his signature on the memorandum of partition. He submits that, on the strength of memorandum of partition, names of the parties have been entered in the CTS records and also in the revenue records and the parties have acted upon it. The plaintiff is in the habit of blackmailing the defendants. He further submits that, plaintiff (PW1) has clearly admitted about the partition taken place between the plaintiff and defendants in the course of cross-
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NC: 2023:KHC-D:6394-DB RFA No. 100376 of 2017 examination. He submits that the trial Court was justified in dismissing the suit. Hence he submits that the judgment and decree passed by the trial Court is just and proper and does not call for any interference. Hence he prayed to dismiss the appeal.
11. Heard, perused the records and considered the submissions of the learned counsel for the parties. The points that arise for our consideration are:
i. Whether the plaintiff proves that defendants No.3 and 4 not complied the conditions of partition and it has resulted in non-implementation of the partition effected between them and it is an inequitable partition?
ii. Whether defendants prove that the suit of the plaintiff without seeking the relief of declaration and cancellation of memorandum of partition is not maintainable?
iii. Whether the judgment and decree passed by the trial Court calls for interference? iv. What order or decree?
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NC: 2023:KHC-D:6394-DB RFA No. 100376 of 2017 Re:Points No.1 & 2:
12. Points No.1 & 2 are interlinked and taken together for discussion in order to avoid repetition of facts and law.
13. It is the case of the plaintiff that the plaintiff and defendants are the members of Hindu undivided family. In the Schedule 'B', movable and immovable properties are mentioned and in addition to that, a Mill is being run in the name and style of 'M/s. A. R. Tavargeri and R. K. Bellad' belonging to the plaintiff and defendants and at no point of time there was any effective and equitable partition by metes and bounds. At the time of alleged partition, the plaintiff was major and defendants were minors and the parties have not acted upon the said partition deed dated 17.11.1982 and also amended deed (Watni Patra) dated 20.04.1992. It is contended that the defendants denied the rectification deed when they received from ADLR on 31.07.1995. It is contended that the plaintiff is entitled for 8% of share in the defendant
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NC: 2023:KHC-D:6394-DB RFA No. 100376 of 2017 No.6 firm, wherein the family of plaintiff and defendants holds 20% of share.
14. The plaintiff in order to prove his case, examined himself as PW1 and he has reiterated the plaint averments in the examination-in-chief and produced the documents. Exs.P1 and P2 are the extracts of property register bearing CTS No.1457 to 1463 and 5A/2-0. The said properties stand in the name of Veerappa i.e., the father of plaintiff. Exs.P3 and P4 are the RTC extracts in respect of land bearing survey No.13/1, 13A/2 stands in the name of defendants No.3 and 4. Ex.P5 is the RTC extract in respect of land bearing Survey No. 13A/3 stands in the name of defendants No.3 and 4 and father of plaintiff. Ex.P6 is the extract of property bearing CTS No.1640 to 655 stands in the name of Siddappa Gangappa Kumbar; Ex.P7 is the memorandum of partition executed by plaintiff and defendants on 15.11.1982; Ex.P8 is the Watni Javab; Ex.P9 and P10 are the copies of legal notice got issued by plaintiff to Veerappa and defendant No.4 -
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NC: 2023:KHC-D:6394-DB RFA No. 100376 of 2017 Mahantesh dated 07.04.2003, calling upon them to allot disproportionate 1/3rd share in all the establishment including movable and immovable properties and also proportionate share in the profits earned in the Mill; Ex.P10 is the copy of the legal notice issued to defendants No.3 and 4 dated 12.12.2015 calling upon the defendants No.3 and 4 not to sell 20% of the share of the family or property of the firm along with the other partners to any other person without the written consent of the other members of the family; Exs.P11 and P12 are the postal receipts and Ex.P13 is the copy of news paper advertisement in Vijayvani kannada daily dated 29.11.2015, wherein defendants No.7 and 8 published a notification regarding sale of one of the properties of the Mill; Ex.P14 is the copy of the legal notice got issued by the plaintiff to defendants No.7 and 8; Exs.P15 and P16 are copy of postal acknowledgement; Ex.P18 is the copy of application to the Assistant Director of Land Records (ADLR), Town Planning, Hubballi, submitted by
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NC: 2023:KHC-D:6394-DB RFA No. 100376 of 2017 Mahantappa Veerappa Limbikai - defendant No.4; Ex.P19 is the copy of endorsement issued by ADLR to the plaintiff.
15. In the course of cross-examination, PW1 has stated that, he is the B.Com graduate and he started doing business after completion of his studies; he knows reading and writing of English; he admits that he has signed on the document and after understanding its contents, the witness volunteers that he has affixed his signature and his date of birth is 14.08.1955; it is true that I got issued a legal notice Ex.P9 through an advocate; it is true that I gave instruction for drafting notice; it is true that my father's family has good reputation; on 17.11.1982, memorandum of partition was recorded; it is true that I do not remember the day; it is true that my father informed that the partition was not effected properly; it is true that I have affixed signature on the memorandum of partition; it is true that in the year 1990, one more memorandum of partition was executed and it is marked as Ex.D1; the said document was confronted to
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NC: 2023:KHC-D:6394-DB RFA No. 100376 of 2017 DW1; he admits his signature on the same and it is marked as Ex.D1(a) and he also admits execution of Exs.D1, D2, D3 and D4 and they bear his signature; he submits that, as per the memorandum of partition, property situated in New Cotton Market was allotted to him; it is true that defendants No.3 and 4 constructed commercial building; it is true that they have rented the commercial building; it is true that the said property was sold by his brothers along with defendant No.6; it is true that his father died on 18.11.2005; it is true that as per the family arrangement I have to make separate house; it is true that I have sold eastern part of that property on 20.03.2008 to one Andanur Shivalingappa. It is true that, it was decided that half of the plot in Vidyanagar should be given to me and it is false to say that it was given in lieu to said half portion; Accordingly, I had built house; it is true that I had purchased a flat in Akshaya park; The witness says that the said flat is purchased with the money given by his wife's family and he has document to show that the said flat is purchased with the said money;
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NC: 2023:KHC-D:6394-DB RFA No. 100376 of 2017 it is true that my wife has no independent source of income; it is false to say that the said flat was purchased in the name of his wife; it is true to say that I do not maintain accounts; it is true to say that I am an income tax assessee; it is true to say that I have filed income tax returns and it is true that in the Bammapur Oni, one house stands in the name of my father; it is true that old building was demolished and new building was constructed; I do not know that my father has gifted the said property in favour of defendants No.3 and 4; it is true that the property is situated at Bammapur Oni; Khata is prepared as per Ex.P1.
16. Defendant No.3 was examined as DW1. He has reiterated the written statement averments in the examination-in-chief and produced the documents at Ex.D1 - memorandum of partition dated 15.11.1982, signature of the plaintiff is marked as Ex.D1(a); Ex.D2 is the Xerox copy of partition deed dated 21.06.1990 and signature of the plaintiff is marked as Ex.D2(a); Ex.D3 is
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NC: 2023:KHC-D:6394-DB RFA No. 100376 of 2017 the copy of partition deed dated 20.04.1992 and signature of the plaintiff is marked as Ex.D3(a); Ex.D4 is the rectification deed of partition deed and signature of plaintiff is marked as Ex.D4(a); Ex.D5 is the copy of deed of retirement of partner and signature of the plaintiff is marked as Ex.D5(a); Ex.D6 is the receipt dated 10.09.2003 for having received the amount of Rs.2,50,000/- from the partnership firm and the plaintiff has accepted the receipt and it appears his signature is marked as Ex.D6(a); Ex.D7 is the letter written by the plaintiff to one Mahadevappa; Ex.D8 is the share list between Veerappa, plaintiff and defendants and Ex.D8(a) is the signature of the plaintiff and Ex.D8(b) is the portion marked; Ex.D9 is the extract of payment to plaintiff by defendant No.6 from 01.04.1991 to 29.03.1995; Exs.D10 to D13 is the statement of accounts maintained by defendant No.6; Exs. D14 to D17 are the relevant entries of books of accounts from 1991-92 to 1994-95 and Exs.D18 to D23 are the original kirdhi books (books of accounts).
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NC: 2023:KHC-D:6394-DB RFA No. 100376 of 2017
17. Though the plaintiff has not denied the execution of documents in the cross-examination of DW1, the defendants in order to prove that there was a prior partition between the plaintiff and defendants, have produced the memorandum of partition at Exs. D1, D2, D3 and D4. Further, the plaintiff has also admitted about the execution of memorandum of partition as per Exs.D1 to D4.
18. Defendant No.7 was examined as DW2. He has deposed regarding retirement of plaintiff from the partnership firm long back on 31.03.1992 and settlement of his accounts through cheque and cash. Exs.D9 to D17 are marked through DW2. In the course of cross- examination, it is elicited that he was the Managing Partner of defendant No.6. He was suggested that the plaintiff had issued four cheques to the partnership firm and the same was denied by DW2.
19. From the perusal of the said records i.e., Exs.D1 to D4, it discloses that the partition had already
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NC: 2023:KHC-D:6394-DB RFA No. 100376 of 2017 been effected between plaintiff and defendants and parties have acted upon it. Further, the plaintiff has sold one of the properties fallen to his share in the said partition and the plaintiff being the elder member in the family, at the time of partition in the year 1984, defendants were minors. The plaintiff having accepted the benefit out of Exs.D1 to D4, now the plaintiff is estopped from challenging the alleged partition effected between the plaintiff and defendants. Further, the plaintiff has not challenged the memorandum of partition Exs.D1 to D4. The plaintiff has filed to establish that partition is inevitable.
20. As observed above, the first partition was effected in the year 1982. Till the year 2016, plaintiff has not challenged the said memorandum of partition of the year 1982 and subsequent thereon. The conduct of the plaintiff goes to show that the plaintiff is in the habit of intimidating the defendants. The plaintiff has not challenged the memorandum of partition by filing a suit for
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NC: 2023:KHC-D:6394-DB RFA No. 100376 of 2017 declaration and cancellation of memorandum of partition. Hence mere suit for declaration, partition and separate possession is not maintainable in view of the law laid down by the Hon'ble Supreme Court in the case of Smt.Krishnabai Bhritar vs. Appasaheb Tuljaramarao reported in (1979) 4 SCC 60 and in the case of Azeez Sait Dead by LRs and others vs. Aman reported in (2003) 12 SCC 419.
21. In view of the above discussion, we answer point No.1 in the negative and point No.2 in the affirmative.
22. Point No.3: The trial Court after considering the evidence of PW1 and documents produced by the plaintiff marked as Exs. D1 to D4, has rightly recorded a finding that, as on the date of instituting the suit there was no joint family in existence. The trial Court was justified in passing the impugned judgment. Hence we do not find any grounds to interfere with the impugned
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NC: 2023:KHC-D:6394-DB RFA No. 100376 of 2017 judgment and decree. We answer point No.3 in the negative.
23. Point No. 4: In view of answering points No.1 to 3 in favour of defendants, we proceed to pass the following:
ORDER The appeal is dismissed. Judgment and preliminary decree dated 25.07.2017 passed in O.S.No.71/2016, by the III Additional Senior Civil Judge, Hubballi, is confirmed.
In view of disposal of the main appeal, I.A.1/2017 does not survive for consideration.
Sd/-
JUDGE Sd/-
JUDGE gab/ct-abn List No.: 1 Sl No.: 4