Karnataka High Court
Sanganabasayya S/O Basayya Matad vs Smt. Vijayalaxmi W/O Basayya Hiremath on 17 July, 2023
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NC: 2023:KHC-D:7283-DB
RFA No. 100066 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 17TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO. 100066 OF 2018
BETWEEN:
1. SANGANABASAYYA,
S/O. BASAYYA MATAD
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O: JEERAGAL-587 301,
TQ: MUDHOL, DIST: BAGALKOT.
2. MAHENDRAYYA,
S/O. BASAYYA MATAD,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: JEERAGAL-587 301,
TQ: MUDHOL, DIST: BAGALKOT.
Digitally signed by
VIJAYALAKSHMI
M KANKUPPI 3. RAJENDRAYYA,
Location: HIGH
COURT OF S/O. BASAYYA MATAD,
KARNATAKA
Date: 2023.07.24 AGE: 51 YEARS, OCC: AGRICULTURE,
16:46:02 +0530
R/O: JEERAGAL-587 301,
TQ: MUDHOL,
DIST: BAGALKOT.
4. LAXMIKANT,
S/O. HANAMANTH MULLUR,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: ANAND NAGAR, MUDHOL,
TQ: MUDHOL-587 302,
DIST: BAGALKOT.
...APPELLANTS
(BY SRI.RAVI S.BALIKAI, ADVOCATE)
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NC: 2023:KHC-D:7283-DB
RFA No. 100066 of 2018
AND:
1. SMT. VIJAYALAXMI,
W/O. BASAYYA HIREMATH,
AGE: 54 YEARS,
OCC: HOUSEHOLD WORK AND AGRICULTURE,
R/O: TUBACHI-587 432,
TQ: JAMKHANDI,
DIST: BAGALKOT.
2. SMT. SUJATA,
W/O. BASAVARAJ CHATTIMATH,
AGE: 50 YEARS,
OCC: HOUSEHOLD WORK AND AGRICULTURE,
R/O: BASAVA NAGAR,
MAHALINGAPUR-587 231,
TQ: MUDHOL,
DIST: BAGALKOT.
3. SMT. NIRMALA,
W/O. DAYANAND MUNAVALLIMATH,
AGE: 46 YEARS,
OCC: HOUSEHOLD WORK AND AGRICULTURE,
R/O: NEAR SAMPT MATH, GURUWAR PETH,
GOKAK-591 302,
DIST: BELAGAVI.
4. SMT. BHAGIRATHI,
W/O. SIDDAYYA HIREMATH,
AGE: 59 YEARS,
OCC: HOUSEHOLD WORK AND AGRICULTURE,
R/O: BALLUR R.C. CENTRE,
MUDHOL-587 302, TQ: MUDHOL,
DIST: BAGALKOT.
...RESPONDENTS
(BY SMT.DEEPA PAVAN B.DODDATTI, ADVOCATE FOR
SRI.MRUTYUNJAY TATA BANGI, ADVOCATE FOR R1 TO R3;
NOTICE TO R4 IS SERVED AND UNREPRESENTED).
THIS RFA IS FILED UNDER SEC. 96 OF CPC., 1908, AGAINST
THE JUDGMENT AND DECREE DATED 30.10.2017 PASSED IN O.S.NO.
99/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL, PARTLY DECREEING
THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
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NC: 2023:KHC-D:7283-DB
RFA No. 100066 of 2018
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
VENKATESH NAIK T. J., DELIVERED THE FOLLOWING:
ORDER
This appeal is filed by defendants No.1 to 3 and 6 challenging the judgment and decree dated 30.10.2017 passed in O.S.No.99/2012 by the Principal Senior Civil Judge & JMFC, Mudhol.
2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. Appellants No.1 to 4 are defendants No.1 to 3 and 6, respondents No.1 to 4 are plaintiffs No.1 to 3 and defendant No.5 before the trial Court.
3. Brief facts leading rise to filing of this appeal are as under:
Plaintiffs filed a suit for partition and separate possession. Plaintiffs and defendants are legal heirs of one Basayya Matad who died 7-8 years ago. Plaintiffs No.1 to 3 and defendant No.5 are the sisters of defendants No.1 to 3. Defendant No.4 is the mother of plaintiffs and -4- NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 defendants No.1 to 3 and 5. The suit schedule properties are the joint family properties of plaintiffs and defendants. After the death of Basayya Matad, the suit schedule properties were mutated in the names of defendants No.1 to 3 behind the back and without the knowledge of plaintiffs and some suit schedule properties are purchased in the names of defendants No.1 to 3 from the earnings of the joint family. No partition took place amongst the plaintiffs and defendants. It is contended that based on the partition effected in the year 1985 and 2011 between defendants No.1 to 3, they submitted an application for change of khatha in respect of the suit schedule properties. However, the plaintiffs have filed objections for change of khatha in the names of defendants No.1 to
3. When differences arose between the plaintiffs and defendants, plaintiffs requested the defendants to effect partition of suit schedule properties. But defendants denied to make partition. Hence the plaintiffs filed the instant suit for partition and separate possession in respect of suit schedule properties.-5-
NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018
4. Defendants No.2 to 4 appeared and filed written statement denying the claim of the plaintiffs and admitting the relationship. The description of the suit schedule properties is also denied. It is contended that Sri. Basayya Matad had only one property bearing R.S.No.48 measuring 32 guntas of Jeeragal Village and later defendants No.1 to 3, along with their father, purchased the properties bearing R.S.No.104 measuring 18 guntas, R.S.No.103 measuring 22 guntas and R.S.No.102 measuring 32 guntas from joint family earnings. It is contended that R.S.No.104/2 measuring 24 guntas of Jeeragal Village is self-acquired property of their father Basayya Matad who purchased the said property for consideration of Rs.12,000/- in the year 1992 and remaining suit schedule properties were purchased out of the joint nucleus of defendants No.1 to 3 and their father Basayya Matad. Hence, these properties are self-acquired properties of defendants No.1 to 3 and Basayya Matad. It is contended that plaintiffs No.1 to 3 are married daughters and their marriage was solemnized about 25 -6- NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 years ago and now they are residing in their respective husbands' house. It is contended that the land bearing Sy.No.100 was divided among defendants No.1 to 3 in the year 1985. Sri. Basayya Matad died in the year 2002. Later, through the intervention of elders, partition was effected in respect of the other properties among defendants No.1 to 4 and same has been mutated in the revenue records as per M.R.No.612/2011-12 and RTS/SR/18/2012-13 was registered. Since the date of purchase, defendants No.1 to 4 are in possession of the suit schedule properties and plaintiffs have no right, title and interest in the suit schedule properties. It is further contended that item No.4 of suit schedule A(II) property bearing CTS No.4026A/C measuring 116 sq.meters is the self-acquired property of defendant No.2 who purchased the same out of his earnings on 22.02.1997, for a valuable consideration of Rs.40,000/- and on 13.01.2014, defendant No.2 sold this property in favour of defendant No.6 for a valuable consideration of Rs.2,90,000/- and therefore defendant No.6 is in possession of the said -7- NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 property as a owner. Hence on these grounds prayed to dismiss the suit.
5. Defendant No.1 filed a memo adopting the written statement of defendants No.2 to 4.
6. Defendant No.6 filed written statement and contended that he is the bona fide purchaser of item No.4 of suit schedule A(II) property having purchased the same under registered sale deed dated 13.01.2014, from defendant No.2. Thus, he is the absolute owner of the said property.
7. On the basis of pleadings of parties, the trial Court framed the following issues and additional issues:
ISSUES
1. Whether plaintiff proves that, plaintiffs and defendants are joint owners and possessors of the suit schedule properties as contended in the plaint?
2. Whether the defendants No.2 to 4 proves the partition effected in the family as contended in the para No.8 of the W.S?-8-
NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018
3. Whether the plaintiffs are entitled for relief of partition and separate as sought for?
4. What decree or order?
ADDITIONAL ISSUE dated 02.06.2014
1. Whether defendant No.2 to 4 prove that, CTS No:
4026A1C measuring 116 sq meters is self acquired property?
ADDITIONAL ISSUE dated 24.07.2015
2. Whether defendant No.6 proves that, he is the purchaser and exclusive owner of CTS No. 4026A/C measuring 116 sq meters of Mudhol and he is bonafide purchaser of said property for valuable consideration under registered sale deed dated 13.01.2014 as contended in para 3 of his written statement?
ADDITIONAL ISSUES dated 08.08.2016
3. Whether the plaintiffs prove that, R.S No: 104/2 measuring 24 guntas of Jeeragal village is also one of the joint family and ancestral properties of family of plaintiffs and defendants?
4. Whether the defendant No.2 proves that, R.S No:
104/2 measuring 24 guntas of Jeeragal village is self acquired property of Basayya Matad during 1992 as contended in the additional written statement? -9-
NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 ADDITIONAL ISSUE dated 17.08.2017
5. Whether the defendants No.1 to 3 prove that the suit properties are the self acquired properties of defendant No.1 to 3 and their father Basayya as contended in para 8 of the written statement ?
8. In order to prove the case of the plaintiffs, plaintiff No.2 - Smt. Sujata examined herself as PW-1 and got marked 34 documents as Ex.P1 to Ex.P34. In support of the case of defendants, defendant No.2 - Sri. Mahendrayya examined himself as DW-1, defendant No.1
- Sri. Sanganabasayya is examined as DW-2 and got examined two witnesses as DW-3 and DW-4, defendant No.6 is examined as DW-5 and he got examined six witnesses as DW-6 to DW-11. Defendants got marked 35 documents as Ex.D1 to Ex.D35.
9. The trial Court after considering the oral and documentary evidence, answered issue No.1 and additional issue No.4 in the affirmative; issue No.2, additional issues No.1 to 3 and 5 in the negative; and issue No.3 partly in affirmative and consequently decreed
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 the suit of the plaintiffs in part. It is ordered and decreed that the plaintiffs are entitled for 1/7th share in the suit schedule properties. Defendants No.1 to 3 and 6 aggrieved by the judgment and decree passed by the trial Court, have filed the present appeal.
10. Heard the learned counsel for the appellants and respondents.
11. Learned counsel for the appellants Sri. Ravi S. Balikai submits that the judgment of the trial Court is contrary to law and the material available on record. The trial Court erred in decreeing the suit in the absence of any oral and documentary evidence to prove the existence of joint family nucleus and that father Basayya had sufficient nucleus to purchase the other suit schedule properties. In fact, land bearing Sy.No.100 was purchased by Basayya in the year 1965 in the names of defendants No.1 and 2, but the trial Court wrongly held that the same was purchased out of the earnings from land bearing S.R.No.100, remaining land bearing S.R.No.104/3, 104/2
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 and 103/2 have been purchased and it is self-acquired properties of late Basayya. It is contended that these properties are self-acquired properties of defendants No.1 and 2. Hence, plaintiffs have no right, title and interest over the suit schedule properties. Learned counsel further contended that defendant No.1 was working as a Boiler Operator in Sugar Factory at Raibag, Karwar Industries, KMF-Dharwad and Gadag and he had separate earnings and out of such earnings, he purchased the land in the name of defendant No.3 and himself. It is further contended that plaintiffs' marriage was solemnized about 25 years ago and they are residing with their respective husbands and they have not contributed anything in purchase of suit schedule properties. It is contended that plaintiffs failed to prove that the suit schedule properties have been purchased out of the joint family nucleus and it is contended that item No.4 of suit schedule A(II) properties is not available for partition, but the trial Court granted share in that property also. It is contended that the trial Court failed to note the settled position of law is
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 to cast the burden of proving the property as joint family property, is on the person, who claims it to be so and once they prove it, the burden shifts on the person who claims it to be self-acquired property and in the present case, the plaintiffs have not discharged the initial burden of proving that the suit schedule properties are the joint family properties and said properties were purchased out of the joint family nucleus. On these grounds, learned counsel for the defendants No.1 to 3 and 6 pray to set aside the impugned judgment and decree passed by the trial Court.
12. Learned counsel for the defendants Miss Deepa Pavan B. Doddatti submits that the judgment and decree passed by the trial Court is in accordance with law. The trial Court has considered the pleadings along with the oral and documentary evidence of the parties and rightly passed the judgment and decree. Hence, on these grounds, she prays to dismiss the appeal.
13. Perused the records and considered the submissions made by the learned counsel for the parties.
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018
14. The points that would arise for our consideration are:
1. Whether the plaintiffs prove that the properties purchased by defendants No.1 to 3 are joint family properties and the plaintiffs are entitled for share in the said properties?
2. Whether defendants No.1 to 4 proves that there was earlier partition in respect of the suit schedule properties among defendants No.1 to 4?
3. Whether defendants No.1 to 4 prove that the suit schedule properties are the self-acquired properties of defendants No.1 to 3 and their father Basayya Matad and hence the plaintiffs are not entitled for any share in the suit schedule properties?
4. Whether defendant No.6 proves that defendant No.2 being the absolute owner of item No.4 of suit schedule A(II) property, sold the same in favour of defendant No.6 under the registered sale deed dated 13.01.2014, and hence he is the bonafide purchaser?
5. Whether defendants No.1 to 3 and 6 have made out grounds for interference with the impugned judgment and decree?
6. What order or decree?
15. Point Nos.1 to 3: Since these points are interlinked, they are taken together for common discussion. It is the case of the plaintiffs that the suit
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 schedule properties are joint family properties and they are in joint possession along with the defendants as some properties were purchased by defendants No.1 to 3 and their father Basayya out of joint family nucleus. It is the contention of defendants No.1 to 4 and 6 that the suit schedule properties are not the joint family properties and they are their self-acquired properties.
16. To prove their case, plaintiff No.2 examined herself as PW-1 and in her chief-examination, she has reiterated the averments made in the plaint and got marked 33 documents as per Ex.P1 to Ex.P33. Ex.P1 is the RTC extract in respect of Item No.1 land bearing R.S No. 100/1+2-2A36G standing in the name of defendant No.3. Item No.2 R.S No. 100/1+2p-3A as per Ex.P2 RTC extract is standing in the name of defendant No.2. Item No.3 R.S No. 100/1+2P1- 2A37G as per Ex.P3 RTC extract is standing in the name of defendant No.1. Item No.4 R.S No. 103/1 30G as per Ex.P4 RTC extract is standing in the name of defendant No.3. Item No.5 R.S No. 103/2- 27G as per
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 Ex.P5 RTC extract is standing in the name of defendant No.1 to 4. Item No.6 R.S No. 104/3 19G as per Ex.P6 RTC extract is standing in the name of defendant No.1 to 4. In Item No.7 R.S No.115/2 11G as per Ex.P7 RTC extract is standing in the name of defendant No.2. Item No.8 R.S No.115/3 30G as per Ex.P8 RTC extract standing in the name of defendant No.2. Item No.9 R.S No.116/1 1 acre 33G as per Ex.P9 RTC extract is standing in the name of defendants No.3 & 1. In Item No.10 R.S No.133/1 total 3A29G as per Ex.P10 RTC extract, 1A34G is standing in the name of defendant No.1 & 1A35G is standing in the name of defendant No. 3. Item No.11 R.S No.134/3A 1A8G as per Ex.P11 RTC extract is standing in the name of defendant No.3. Item No.12 R.S No.134/3B 1A7G as per Ex.P12 RTC extract is standing in the name of defendant No.3. Item No.13 R.S No.35/5 2A4G as per Ex.P13 RTC extract is standing in the name of defendant No.2. Item No. 14 R.S No.37/1 1A18G as per Ex.P14 RTC extract is standing in the name of defendant No.2. Item No.15 R.S No.36/2 2A33G as per Ex.P15 RTC extract is standing in the name of defendant No.1. Item No.16 R.S
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 No.42/1 5A36G as per Ex.P16 RTC extract is standing in the name of defendant No.2 & 3. Item No.17 R.S No.43/3B 31G as per Ex.P17 RTC extract is standing in the name of defendants No.4 & 2. Item No.18 R.S No.104/2 as per Ex.P- 34 RTC extract is standing in the name of defendants No.1 to
4. Ex.P-18 show as per diary No-2143 dated 2.6,1989, item No-1 to 3 have been divided among defendants No.1 to 3 on 02.06.1989. In the said division defendant No.1 got 2 acre 37 guntas, defendant No.2 got 3 acres, defendant No.3 got 3 acre 36 guntas. As per Ex.P-19 M.E No:2748 dated 15.11.1994, item No.10 R.S No:133/1 has been purchased in the name of defendants No.1 & 3 under a registered sale deed dated 28.10.1994. As per the same document, M.E No:2549 dated 15.11.1994 show item No.9 i.e., R.S No:116/1 has been purchased in the name of defendants No.3 & 1. As per Ex.P.20 item No.6 R.S No: 104/3 has been transferred to the names of all the L.Rs of Basayya on the basis of inheritance. As per Ex.P-21 M.R No: 3924/2003-04, item No.8 R.S No:115/3 to extent of 30 guntas has been purchased in the name of defendant No.2. As per Ex.P-22
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 M.R No: 41/2004-05, item No.7 R.S No: 115/2 to an extent of 11 guntas has been purchased in the name of defendant No.2 under a registered sale deed dated 04.09.2004. As per Ex.P-29 M.R No: 32/04-05 item No.11 & 12 R.S No: 134/2A and 134/3A have been purchased in the name of defendant No.3 under a registered sale deed dated 28.07.2004. As per Ex.P-24 M.R No: 85/2004-05 dated 16.11.2004, item No.12 to extent of 1 acre 7 guntas has been acquired by defendant No.3 under a settlement. Ex.P-25 M.R No: 46/2005-06 show item No.7 R.S No: 115/2 to extent of 11 guntas has been purchased in the name of defendant No.2 under a registered sale deed dated 01.09.2005. As per Ex.p-26 M.E No: 3029 dated 16.01.1999, R.S. 36/2 the item No.15 has been purchased in the name defendant No.1 under a registered sale deed dated 16.12.1998. As per Ex.P-27 M.R No: 3773 dated 19.04.2003 in respect of R.S no: 37/1 item No.14 has been purchased the name of defendant No.2. As per Ex.P-28 M.R No. 201/2004-05 item No.17 has been purchased in the name of defendants No.2 & 3. As per Ex.P-29 M.R No:
26/2009-10 R.S No: 35/5 item No-30 has been acquired by
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 defendant No.2 under a partition. As per Ex.P-30 M.R No:
400/05-06 R.S No: 43/3B to extent of 33 guntas has been acquired by defendants No.2 & 3 jointly. As per Ex.P-39 M.R No: 1189/2012-13, 31 survey No: 42/1 i,e., item No.16 has been acquired in the name of defendants No.2 & 3 under a partition. As per Ex.P-32 M.R No: T188/2012-13, survey No: 37/3, 37/4 to extent of 1 acre 06 guntas and 16 guntas respectively have been acquired by defendant No-3 and 2 respectively. As per Ex.P-33 property register card, item No.4 of house properties is purchased by defendant No.2 under a registered sale deed dated 27.03.1997.
17. PW-1 was cross-examined. She admitted that Basayya is the adopted son of Shivarudraiah Matad. Her father Basayya got the house and landed properties from the family of Shivarudraiah Matad, but she do not know the survey numbers and extent of those properties. She further stated that there were 25 koorige (100 acres) to the family of Shivarudraiah Matad and when Basayya went in adoption, 12 koorige were there at Kerur of Badami
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 Taluka, 8 koorige were there at Hanchinal of Biligi Taluka and remaining properties were there at Jeergal of Mudhol Taluka and those properties were transferred in the name of Basayya and she do not know whether her father sold those properties or not. It is further admitted that defendant No.1 - Sanganabasayya was in service and defendants No.2 and 3 earned sufficient income from agriculture. She further admits that Basayya was an astrologer. After his death, the said profession was continued by defendants No.2 and 3 and apart from the agricultural income, they were having sufficient income from the astrology profession.
18. Defendant No.2 - Sri. Mahendrayya was examined as DW-1 and defendant No.1 - Sri. Sanganabasayya was examined as DW-2. DW-1 and DW- 2 have reiterated the averments made in the written statement in their chief-examination. In support of their evidence, they relied on 35 documents marked as Ex.D1 to D35. Ex.D-1 M.E No: 538 show survey No: 100 have
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 been purchased in the name of defendants No.1 & 2 under a registered sale deed 20.05.1965. As per Ex.D-2 M.E No:
2548 survey No: 133/1, item No.10 to an extent of 3 acre 39 guntas and 1 acre 34 guntas have been acquired in the name of defendants No.1 & 3 under a registered sale deed dated 28.10.1994. As per Ex.D-3 M.E 2549 dated 15.11.1994 item No.9 i.e., survey No: 116/1 to an extent of 1 acre 33 guntas has been purchased in the name of defendants No.1 & 3 under a registered sale deed dated 28.10.1994. As per Ex.D-4 M.E No: 2550 dated 15.11.1994, item No.4 survey No: 103/1 to extent of 36 guntas has been purchased in the name of defendant No.3 under a registered sale deed dated 28.09.1994. As per Ex.D-5 M.E No: 2816 dated 08.02.1992 in respect of item No.5 R.S No: 103/2 to an extent of 27 guntas has been purchased in the name of Basayya. As per Ex.D-6 M.E No: 2317 dated 08.02.1992, in the property R.S No: 92/10 Basayya has got right to way, as per Ex.D-7 M.E No: 2547 in respect of item No.10 R.S No:
133/1 to an extent of 3 acre 39 guntas and 1 acre 34 guntas have been purchased in the name of defendants No.1 & 3
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 under a sale deed. As per Ex.D-8 M.E 2284 dated 01.08.1981 in respect of item No.6 R.S No: 104/3 to an extent of 19 guntas has been purchased in the name of Basayya under registered sale deed. As per Ex.D-9 M.E No:
2340 dated 27.07.1992 in respect of item No.18 R.S No:
104/2 to extent of 17 guntas has been purchased in the name of Basayya. As per Ex.D-10 M.E No: 3230 dated 04.07.2000 Item No.30 to an extent of 8.16 guntas has been purchased in the name of defendant No.2 as per sale deed.
As per Ex.D-11, M.E No: 3773 dated 21.04.2003 in respect of item No.14 R.S No: 37/1 to an extent of 2 acres has been purchased in the name of defendant No.2. As per Ex.D-12 M.E No: 3810 dated 09.06.203 in respect of item No.13 R.S No: 35/5 to an extent of 1 acre 26 guntas has been purchased in the name of defendant No.2. As per Ex.D-13 M.E No; 3873 item No.5, 6 & 18 i.e., R.S No: 103/2, 104/3,104/2 have been changed into the name of plaintiffs and defendants No.1 to 5 on the basis of inheritance on the death of Basayya. Ex.D-14 M.R.No: 201/2004-05 in respect of item No: 17 R.S No: 43/3 to an extent of 3 guntas has
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 been jointly purchased in the name of defendants No.2 & 3 under a registered sale deed. As per Ex.D-15 M.R No:
3924/2003-004 dated 16.02.2004 in respect of item No.8 R.S No: 115/3 to an extent of 13 guntas has been purchased in the name of defendant No.2 under a registered sale deed dated 16.02.2004. As per Ex.D-16 M.R No: 41/2004-05 in respect of item No.7 survey No: 115/2 to an extent of 11 guntas has been purchased in the name of defendant No.2. As same, as per Ex.D-17 M.R No: 46/2005-06 item No.7 to an extent of 11 guntas has been purchased in the name of defendant No.2 under a registered sale deed dated 01.09.2005. As per Ex.D-18 M.R No: 32/2004-05 item No.11 & 12 i.e., R.S No: 134/2D to an extent of 1 acre 2 guntas survey No; 134/3A to an extent of 1.07 guntas have been purchased in the name of defendant No.3. Ex.D-19 is an application dated 14.05.2012 to the Tahasildar to change Khata as per partition deed dated 18.11.2011. Ex.D-20 is the Lagna Patrika dated 04.06.1986 of Vijayalaxmi. Ex.D-21 is the Lagna Patrika of Sujata. Ex.D-22 is the VPC in respect of house No.9 i.e. item No.1 of house properties same is
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 standing in the name of Basayya. As per Ex.D-23 is VPC in respect of house No.9 i.e., item No.2 of house properties same is standing in the name of Basayya. As per Ex.D-24 is M.R order in respect of CTS No: 4026A1C standing in the name of defendant No.2. Ex.D-25 is M.R No: 439/2012-13 standing in the name of defendant No.2 in respect of R.S No:
43/3B item No.17. Ex.D-26 is the orders of Tahasildar dated 28.12.2012 to effect M.R No: 612/2011-12 in respect of survey No: 35/5, 37/1, 42/1, 43/6 & 32/2. Ex.D-27 is the certified copy of the sale deed dated 21.01.1997 in favour of defendant No.6, Ex-D-28 is the certified copy of the sale deed dated 28.10.94, according to which Item No.4 R.S.No.103/1 to an extent of 30G has been purchased in the name of defendant No.3. Ex.D-29 is the certified copy of the sale deed dated 28.10.1995, according to which R.S No:
133/1 item No.10 is purchased in the name of defendant No.1 and 3. Ex.D-30 is the certified copy of the sale deed dated 28.10.1995 in respect of item No.10 133/1 purchased in the name of defendant No.1. Ex.D-31 is the certified copy of the sale deed 28.10.1994 in respect of item No.9 116/1
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 33G has been purchased in the name of defendant No.3. Ex.D-32 is the certified copy of the sale deed dated 07.10.1998 in respect of item No.16 R.S.No.42 purchased in the name of defendants No.2 and 3. Ex.D-33 is the certified copy of the sale deed in respect of item No.4 of house properties i.e., CTS No: 4026A1C has been purchased in the name of defendant No-2 on 22.02.1997. Ex.D-35 is the certified copy of the sale deed in respect of item No.18 R.S.No.104/2 has been purchased in the name of Basayya 19.06.1992.
19. These documents show some properties have been purchased in the name of Basayya, some in the name of defendant No.1 to 3 individually, some in the names of defendant No.1 and 2 jointly, some in the names of defendant No.2 and 3 jointly, some in the names of defendant No.1 and 3 jointly. Some properties acquired before the death of Basayya and some after death. From these documents it is not possible to decide whether the suit properties are joint family properties of the plaintiffs and defendants. Because at first to construe a property as joint
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 family property, it should be an ancestral property of a Hindu family in the hands of male members of 3 generation or it should be acquired out of joint nucleus of joint family. As aforesaid, there is no such pleadings that suit schedule properties are ancestral properties of the family of plaintiffs and defendants in the hands of male members of 3 generation.
20. DW-1 was cross-examined by the learned counsel for the plaintiffs. In the cross-examination he admits that Basayya was basically having income from agriculture. He further admits that before revenue authority, his counsel had admitted that the suit schedule properties are the joint family properties. He further admits that Basayya was having income from astrology profession also. He further admits that defendants No.1 and 3 purchased the land bearing Sy.No.116 jointly and the rest of the suggestions were denied by him.
21. In the cross-examination, DW-2 has admitted that land bearing Sy.No.48 came to his father from
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 adopted family. He admits that Sy.No.100 was purchased in the name of defendants No.1 and 2 by his father in the year 1965 and at that time, defendant No.1 was aged about 13 years and defendant No.2 was aged 8 years and they were studying during 1965. He further admits that Sy.Nos.103/2, 104/3 and 104/2 have been purchased by his father in the year 1991-92 out of the income earned from Sy.No.100 to an extent of 9 acres 17 guntas. He further admits that the land bearing Sy.No.36/2 has been purchased out of agricultural income derived from the other properties and Sy.No.42/1 has been purchased in the names of defendants No.2 and 3. He specifically admitted that all the joint family properties have been purchased out of the income derived from Sy.Nos.48 and
100. He further admitted that item No.4 of suit schedule A(II) properties, i.e., property bearing CTS No.4026A/C has been purchased in the name of defendant No.2 out of joint family nucleus. Therefore he admitted that all the suit schedule properties are acquired from the properties of Basayya.
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22. Further, defendants got examined DW-3 Hanamant Pandappa Raddi and DW-4 Ramappa Satteppa Melligeri. In their evidence they have stated that Basayya was the owner of land bearing Sy.No.48 and later, out of the income derived from the agriculture and astrology, he purchased various properties and all properties are self- acquired properties of defendants No.1 to 3 and their father Basayya Matad.
23. Defendant No.6 was examined as DW-5. He has stated that he purchased item No.4 of suit schedule A(II) property i.e., CTS No.4026A/C from defendant No.2 under registered sale deed dated 13.01.2014 for a sale consideration of Rs.2,90,000/- under Ex.D34 and his vendor defendant No.2 had purchased the said property under registered sale deed dated 22.02.1997. As such, defendant No.6 is the absolute owner of item No.4 of suit schedule A(II) properties and he is the bonafide purchaser.
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24. Defendant No.6 got examined Sri. Ningappa Mahadevappa Antapur, Sangappa Ningappa Batakurki and Shivaputrappa Kalappa Kumbar as DW-6 to DW-8. They have stated that they are witness to Ex.D34, sale deed executed by defendant No.2 in favour of defendant No.6.
25. Defendants also got examined Sri. Ramappa Lachchappa Macha, Shivayya Kallayya Mathapat and Siddaiah as DW-9 to DW-11 who were the scribe and witnesses to Ex.D35. In the cross-examination they admit that Basayya Matad purchased the properties out of the income accrued from astrology, but they do not know whether Basayya Matad purchased these properties out of the joint family nucleus or not.
26. In the light of the above evidence and material on record, the learned counsel for the defendants contended that all the suit schedule properties are the self-acquired properties of defendants No.1 to 3 alone and their father has not purchased the properties as contended
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 by the plaintiffs. Hence he contends that the plaintiffs are not entitled for any share.
27. Learned counsel for the plaintiffs contended that the relationship between the parties is admitted. The status of suit schedule A(I) and A(II) properties i.e., defendants 1 to 3 and Basayya jointly purchased some of the properties and remaining properties were purchased out of the joint family nucleus. Hence the suit schedule properties are the joint family properties of plaintiffs and defendants and these properties remain undivided amongst the plaintiffs and defendants. Therefore, there was no partition in the suit schedule properties by metes and bounds till the date of suit. Learned counsel further contended that possession of plaintiffs over the suit schedule properties would be constructive in nature. Hence possession of one co-owner would be the possession of other co-owner which is the well-established position of law.
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28. On perusal of the evidence on record, it appears that the land bearing Sy.No.100 [item Nos.1 to 3 of suit schedule A(I)] was purchased by Basayya in the names of defendants No.1 and 2 under registered sale deed Ex.D1, dated 20.05.1965, when defendants No.1 and 2 were aged about 13 years and 8 years, respectively. As per Ex.D4, defendant No.3 purchased item No.4 of suit schedule A(I) property bearing Sy.No.103/1 under registered sale deed dated 28.09.1994. As per Ex.D5, Basayya purchased item No.5 of suit schedule A(I) property bearing Sy.No.103/2 under registered sale deed dated 08.02.1992. As per Ex.D8, item No.6 i.e., Sy.No.104/3 was purchased by Basayya under registered sale deed dated 01.08.1981. As per Ex.D3, defendants No.1 and 3 purchased item No.9, land bearing Sy.No.116/1 under registered sale deed dated 28.10.1994. As per Ex.D2 and Ex.D7, defendants No.1 and 3 purchased item No.10, land bearing Sy.No.133/1 under registered sale deed dated 28.10.1994. As per Ex.D18, item Nos.11 and 12, land bearing Sy.No.134/3A and 134/3B have been purchased
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 by defendant No.3 under registered sale deed dated 28.07.2004. As per Ex.D11, item No.14, land bearing Sy.No.37/1 has been purchased by defendant No.2. As per Ex.P26, item No.15, land bearing Sy.No.36/2 has been purchased by defendant No.1 under registered sale deed dated 16.12.1998. As per Ex.D32, item No.16 has been acquired by defendants No.2 and 3 under partition. As per Ex.D25, item No.17, land bearing Sy.No.43/3B is standing in the name of defendant No.2. As per Ex.D13, item Nos.5, 6 and 18, the lands bearing Sy.Nos.103/2, 104/3 and 104/2, have been changed in the name of plaintiffs and defendants No.1 to 6, on the basis of inheritance, on the death of Basayya Matad.
29. On perusal of these documents, it shows that some properties have been purchased in the name of Basayya, some properties stands in the names of defendants No.1 to 3 individually, some properties are purchased in the names of defendants No.1 and 2 jointly and some properties are purchased in the names of
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 defendants No.2 and 3 jointly. Further, some properties are acquired before the death of Basayya and some properties are acquired after his death. On perusal of the oral and documentary evidence on record and the admissions made by DW-1 to DW-11, it appears that all the suit schedule properties are joint family properties of plaintiffs and defendants and after the death of propositus Basayya, some properties have been mutated in the names of defendants No.1 to 3 alone.
30. On perusal of the oral and documentary evidence on record, no partition took place in the family of plaintiffs and defendants and they continued to own and enjoy the suit schedule properties jointly. Admittedly, though DW-1 and DW-2 have taken a contention that partition took place among the plaintiffs and defendants No.1 to 3 during the year 1985 and 2011, but they have not produced any registered partition deed before the court. In fact, there was no actual division of properties
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 either in the year 1985 or 2011 and most importantly, the mother and sisters were not parties to the partition.
31. On perusal of the evidence of DW-3, he has stated that during the lifetime of Basayya or after his death, there was partition between defendant No.4 and her children and in the year 1985, neither defendant No.4 nor plaintiffs get any share in the suit schedule property, but only sons get the shares. Since all the suit schedule properties are not divided among the plaintiffs and defendants, all the suit schedule properties consisting of Basayya, plaintiffs and defendants No.1 to 5. After the death of Basayya, plaintiffs and defendants succeed to the suit schedule properties.
32. In the light of the above evidence and material on record, counsel for plaintiffs contended that the suit schedule properties are joint family properties of both the parties and remained undivided between the parties and there was no partition in the suit schedule properties by metes and bounds till the date of suit.
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018
33. In the case of VINEETA SHARMA VS. RAKESH SHARMA reported in (2020) 9 SCC 1, the Hon'ble Apex Court has held as under:
"136. The expression used in Explanation to Section 6(5) 'partition effected by a decree of a court' would mean giving of final effect to actual partition by passing the final decree, only then it can be said that a decree of a court effects partition. A preliminary decree declares share but does not effect the actual partition, that is effected by passing of a final decree; thus, statutory provisions are to be given full effect, whether partition is actually carried out as per the intendment of the Act is to be found out by the Court. Even if partition is supported by a registered document it is necessary to prove that it had been given effect to and acted upon and is not otherwise sham or invalid or carried out by a final decree of a court. In case partition, in fact, had been worked out finally in toto as if it would have been carried out in the same manner as if affected (sic effected) by a decree of a court, it can be recognized, not otherwise. A partition made by execution of deed duly registered under the Registration Act, 1908, also refers to completed event of partition not merely intendment to separate, is to be borne in mind while dealing with the special provisions of Section 6(5) conferring rights on a daughter. There is a clear legislative departure with respect to proof of partition which prevailed earlier; thus, the Court may
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 recognise the other mode of partition in exceptional cases based upon continuous evidence for a long time in the shape of public document not mere stray entries then only it would not be in consonance with the spirit of the provisions of Section 6(5) and its Explanation.
137. Resultantly, we answer the reference as under:
137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities 137.2. The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition th which had taken place before 20 day of December, 2004.
137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005 137.4. The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
137.5. In view of the rigor of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."
34. In view of the law laid down by the Hon'ble Apex Court in the case of VINEETA SHARMA (SUPRA), we hold that the properties acquired by deceased Basayya along with his sons, defendants No.1 to 3 are joint family properties of plaintiffs and defendants.
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35. In view of rigor of the provisions of explanation to Section 6(5) of the Hindu Succession Act, 1956, the plea of oral partition cannot be accepted as the statutory recognized mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908, or effected by decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced on the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on the oral evidence alone cannot be accepted and to be rejected outrightly.
36. Whereas, it is the contention of defendants No.2 and 3 that, in the year 1985 and 2011, partition were effected amongst defendants No.1 to 3, but they have not produced any registered instrument in respect of the same. Defendants have taken a specific defence in the written statement that the properties standing in the name of defendants No.1 to 4 are purchased out of their
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 earnings and further, the defendants have not placed any record to show that the defendants purchased the properties in the name of defendants No.1 to 3 and their father Basayya in order to show that the said property was purchased by defendants No.1 to 3. Defendants No.1 to 3 have not placed any record to show what is the extent of consideration amount contributed by defendants No.1 to 3 and their father. Admittedly, we have already observed as above that the father of the plaintiff got lands bearing Sy.No.40 from the adopted family and out of the income derived from Sy.No.48, Basayya has purchased the land bearing Survey No.100 and thereafter Basayya has purchased the land bearing Sy.No.103/2, 104/3, 104/2. Defendants have failed to establish that they have jointly contributed for purchasing some of the properties in their name. Hence the contention of defendants No.2 and 3 cannot be considered. Hence we answer point No.1 in the affirmative, points No.2 and 3 in the negative.
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018
37. Point No.4: Insofar as contention of defendant No.6 that he purchased the item No.4 of suit schedule A(II) properties from defendant No.2 under the registered sale deed dated 13.01.2014, admittedly, the instant suit was filed in the year 2012 and during the pendency of the suit, defendant No.2 alienated item No.4 of suit schedule A(II) properties in favour of defendant No.6. Therefore, the said alienation is hit by Section 52 of the Transfer of Property Act, 1882 and therefore, he cannot be considered as a bona fide purchaser of item No.4 of suit schedule A(II) properties. Hence we answer point No.4 in the negative.
38. Point No.5: In view of foregoing discussion on points No.1 to 4, the trial Court, based on the oral and documentary evidence, has rightly decreed the suit and granted equal share to the plaintiffs. Hence there is no merit in the contention of the defendants No.1 to 3 and 6. Hence the appeal filed by the defendants No.1 to 3 and 6
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NC: 2023:KHC-D:7283-DB RFA No. 100066 of 2018 requires to be dismissed. Hence we answer point No.5 in the negative.
39. Point No.6: In the result, we proceed to pass the following:
ORDER The appeal filed by defendants 1 to 3 and 6 is dismissed. The judgment and decree dated 30.10.2017 passed in O.S.No.99/2012 by the Principal Senior Civil Judge & JMFC, Mudhol, is confirmed.
No order as to the cost.
Sd/-
JUDGE Sd/-
JUDGE RD,GAB List No.: 1 Sl No.: 1