Karnataka High Court
Srinivas S/O Annappa Bhandari vs Sri Jaiwant S/O Annappa Bhandari on 23 November, 2020
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 23rd day of November 2020
Before
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
R.F.A. No.1501 of 2006
Between
Srinivas, son of Annappa Bhandari
Aged about 56 years, Occupation :
Agriculture and Service
Residing at Kasaba karkikodi
Honavar Taluk - 571 156
Uttara Kannada Dist. ...Appellant
(By Sri Ramesh I Zirali for Sri Shivaraj S Balloli, Sri Anil
V Kataraki, M/s.G S Bhat and Associates, Advocates)
And
1. Sri Jaiwant, s/o Annappa
Bhandari, Age 45 years
Occupation : Agriculture &
Business, r/a Kasaba
Karkikodi, Honavar Taluk
- 571 156, U K District.
2. Sri Sadanand
s/o Annappa Bhandari
Aged about 41 years
Occupation : Village Accountant
r/a Muralidhar Math Road
Karwar - 581 301.
2
3. Smt.Ambabi, w/o Channappa
Bhandari, since deceased by L.Rs.
3(a). Sri Channappa Rama Bhandari
Aged about 88 years
Occupation : Agriculture
R/a Chippihaklal, Honavar
Taluk - 571 156, U K District.
3(b). Sri Rama Mohana Kumtakar
Aged about 53 years
r/a Kumtakar Sadan
Mulund Cheknaka, Mumbai.
3(c). Smt.Revati Ashok Bhandari
Aged about 53 years
Occupation : Agriculture
r/a Kalbagh, Kumta Taluk -
581 343.
3(d). Smt.Mohini, w/o Sheshagiri
Bhandari, c/o Sheshagiri
Govinda Bhandari, Aged about
48 years, Occupation : Service
Government Hospital, Byndoor
- 581343.
3(e) Sri Prabhakar, s/o Channappa
Bhandari, Aged about 39 years
r/a Chippihakkal, Navilgon
Honavar Taluk - 571 156.
3(f) Sri Kashinatha, s/o Channappa
Bhandari, Aged about 35 years
Occupation : Teacher Primary
School, Siddapur - 586 136.
3
3(g) Sri Kamalakara
s/o Channappa Bhandari,
Aged about 34 years
R/a Chippihakkal, Navilgon
Honavar Taluk - 571 156.
4. Smt.Ravikala @ Anasuya
w/o Nagappa Adapekar
age : 40 years, Occupation
Agriculture, r/a Near Car Street
Honavar - 581 334, U K Dist.
5. Smt.Parwati,
w/o Parameshwar Bhandari,
Age 40 years,
Occupation Agriculture,
r/a Aghasal Bommanhalla
Sirsi Taluk - 581 402. ... Respondents
(By Sri J S Shetty, Advocate for R1,
Sri B D Hiremath, Sri N S Sampangi Ramaiah, Advocates
for R1,
Sri Sangram S Kulkarni, Advocate for R2, appeared
through VC,
R3(g), R4 and R5 - notice served, but unrepresented)
This RFA is filed under Section 96 of CPC against
the judgment and decree dated 20.4.2006 passed in OS
No.4/2001 on the file of the Civil Judge (Sr.Dn.) Honavar,
dismissing the suit for partition and separate possession.
This RFA coming on for final hearing this day, the
Court delivered the following:
4
JUDGMENT
Plaintiff No.2 is in appeal against the judgment and decree dated 20th April 2006 passed by the Civil Judge (Sr. Dn.), at Honnavar in O.S. No.4 of 2001.
2. Plaintiffs had filed the suit for partition and separate possession of their 1/4th share in the suit schedule properties. In the plaint, it was averred that the father of the plaintiff No.2 by name Annappa Hanumant Bhandari died on 18.04.1977 leaving behind him his widow, the plaintiff No.1 who was subsequently deleted as a party to the suit, plaintiff No.2 and defendants No.1 and 2-sons and defendant Nos.3, 4 & 5- daughters as his legal heirs. Plaintiffs claimed that the suit schedule properties are the ancestral properties and the plaintiffs demanded for partition by metes and bounds, in the month of October 1992. Since the defendants were not inclined to effect partition, the plaintiffs were constrained to file the suit for partition and separate possession. 5
3. In response to the suit summons, the defendants No.1, 2 to 4 and 5 appeared through their counsel. Defendant No.2 filed written statement, which was adopted by defendants No.3 to 5, denying the plaint averments. It was also stated that the property at Sl.No.1 in Schedule 'A' to the plaint was purchased by defendant no.1 and it was the absolute property of defendant No.1. It was also contended that the Defendant No.1 perfected his right over land bearing Sy.No.576/B at Sl.No.12 of "A" Schedule by way of adverse possession. It was also contended by defendants that the land bearing Sy.No.120/1A1, Survey No.58/5+6A2, Survey No.119/2 and building constructed on the land bearing Sy.No.120/9 described in the suit "A" Schedule at Sl.No.1, 2, 14 & 10 respectively and house described in suit "B" Schedule are the self acquired properties and are not available for partition . It was also contended that the suit for partial partition was not maintainable since the house property bearing No.M.H. No.2602 situated in 6 Sy.No.118/1 was not brought into the hotchpot for partition.
4. The Trial Court after framing issues and examining the evidence record, recorded a finding, that the suit for partial partition is not maintainable since the plaintiffs had not included the house property bearing No.M.H.2602 in Sy.No.118/1 which is an ancestral property of the plaintiff and defendants. Taking exception to the dismissal of the suit by the trial Court, Plaintiff No.2 is in appeal.
5. I have considered the submission made by the learned counsel for the parties and also perused the material on record .
6. The point that arise for consideration is, whether the suit for partial partition without brining house property bearing No.M.H.2602 in Sy.No.118/1 into hotchpot is maintainable .
7
7. It is a fact that one Annappa Bhandari was the propositus of plaintiffs' and defendants' family. He died leaving behind the plaintiffs and defendants as his legal heirs. The Trial Court after examining the evidence on record, recorded a finding, that the plaintiffs and defendants are entitled to partition and separate possession of their legitimate share over the ancestral properties at Sl.Nos.3 to 13 of suit Schedule 'A' and the properties in suit schedule 'B' i.e., the house property bearing TMC No.2598 and other non suited ancestral properties. The Trial Court further held that plaintiff No.2 and defendant Nos.1 and 2 are entitled to 7/24th share each and defendants No.3, 4 and 5 are entitled to 1/24th share in the suit schedule properties. However, in view of the finding recorded on issue No.5, the suit of the plaintiff for partial partition was held to be not maintainable. Hence, the suit filed by the plaintiff was dismissed.
8. A perusal of the evidence on record would indicate that house property bearing No.TMC No.2602 8 situated in Sy.No.118/1 was the ancestral property of plaintiffs and defendants. However, the plaintiffs had not brought said property into the hotchpot in the suit for partition and separate possession. However, today, learned counsel appearing for the appellant has filed a memo before this Court requesting to include the house property bearing TMC No.2602 situated in R.S.No.118/1 as one of the suit schedule property for effecting partition and separate possession along with other suit schedule properties. The said memo is placed on record. The respondents have no objection to include the house property bearing TMC No.2602 situated in R.S. No.118/1 as one of the suit schedule properties for effecting partition and separate possession.
9. On appreciation of evidence on record , the suit schedule properties at Sl. Nos.1 to 13 of suit schedule 'A' properties are the ancestral properties of the Plaintiff and Defendants. The trial court after having recorded the said finding has dismissed the suit on the 9 ground that the house property bearing TMC No.2602 situated in R.S.No.118/1 which is an ancestral property has been left out and as such the suit for partial partition was not maintainable. The parties before this court have no objection for including the said house property as one the suit schedule property for effecting partition. At this stage it would not be appropriate to remand the matter to the trial court for including the house property and hold a fresh trial when the suit schedule properties at Sl. Nos.1 to 13 of suit schedule 'A' properties and house property bearing TMC No.2602 situated in R.S.No.118/1 which are admittedly the ancestral properties of the Plaintiff and Defendants can be partitioned and separate legitimate shares can be allotted to the parties in this appeal.
10. The trial court has recorded a finding that land bearing S.No.120/1A1 and the new house constructed on land bearing S.No.120/9 at Sl.No. of the Schedule "A" are the self acquired properties of Defendant 10 No.1. The trial court has also recorded a finding that Defendant No.2 is the absolute owner of house property bearing TMC No.2598 as described in Schedule "B" situated in S.No.576/B. The finding recorded by the trial court is based on documentary and as well as oral evidence on record. On re-appreciation of evidence on record, I do not find any illegality in finding recorded by the trial court and the said properties are not available for partition.
11. The Hon'ble Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma reported in AIR 2020 SC 3717 has held that the provisions contained in the substituted Section 6 of the Hindu Succession Act, 1966 confers status of coparcenery on the daughter born before or after amendment in the same manner as son with same rights and liabilities. The Apex Court further held that 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, 11 partition or testamentary disposition which had taken place before 20th day of December, 2004. It was also held that right in coparcenery is by birth and it is not necessary that father coparcener should be living as on 09.09.2005.
12. In view of the law laid down by the Apex Court, it is held that the daughters of Annappa Bhandari i.e., defendants No.3, 4 and 5 are entitled to equal share along with plaintiff and defendants No.1 and 2. In view of the same, the plaintiff No.2 and defendants No.1 to 5 are entitled to 1/6th share each in the properties at Sl.Nos.1 to 13 of schedule 'A' to the suit and also house property bearing M.H.No.2602 situated in Sy.No.118/1. Accordingly, I pass the following:
ORDER
i) The appeal is allowed in part. The impugned judgment and decree passed by the Trial Court dismissing the suit is set aside.12
ii) It is held that the plaintiff No.2 and defendants No.1 to 5 are entitled for 1/6th share each in the suit schedule properties at Sl.
Nos.1 to 13 of suit schedule 'A' properties and also house property bearing M.H.No.2602 situated in Sy.No.118/1.
iii) Plaintiff No.2 is reserved with liberty to file an application before the FDP Court for allotting the house property bearing M.H.No.2602 situated in Sy.No.118/1 to his exclusive share. If such an application is filed by the plaintiff No.2, the FDP court to consider the same favourably.
Sd/-
JUDGE Kms