Karnataka High Court
Kudithini Maggi Hanumanthappa vs Kudithini Maggi Kotramma on 3 March, 2022
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 3 R D DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
R.S.A. NO.5731/2013 (DEC & SEP. POSS.)
BETWEEN
KUDITHINI MAGGI HANUMANTHAPPA,
S/O. HANUMAPPA,
AGE: 53 YEARS,
OCC: AGRICULT URE,
R/O. KALLAHALLI VILLAGE,
IN H.B.HALLI TALUK
DIST: BELLARY
...APPELLANT
(BY SRI.H.R.GUNDAPPA &
SRI.MANJUNATH G. PATIL, ADVS.)
AND
1. KUDITHINI MAGGI KOTRAMMA
W/O. DEVENDRAPPA
AGE: 51 YEARS,
OCC: AGRICULT URE
R/O. KALLAHALLI VILLAGE,
H.B.HALLI TALUK,
DIST: BELLARY.
2. KUDITHINI MAGGI SHANTAMMA
AGE: 31 YEARS,
OCC: AGRICULT URE
R/O. KALLAHALLI VILLAGE,
IN H.B.HALLI TALUK,
DIST: BELLARY
2
3. HALAMMA
W/O. ANINAPPA
SINCE DECEASED BY HER LRS.
A. MANJUNATHA
S/O. ANJINAPPA
AGE: 30 YEARS,
B. LAKSHMI
D/O. ANJINAPPA
AGE: 30 YEARS,
C. PREMA
D/O. ANJINAPPA
AGE: 24 YEARS,
ALL ARE R/O. GAJAPURA VILLAGE
TQ: KUDLI GI,
DIST: BELLARY 583218
...RESPONDENTS
(BY SRI.LAXMAN T .MANTAGANI, ADV. FOR R1 & R2,
R3A T O R3C ARE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAI NST
THE JUDGEMENT & DECREE DATED 22.03.2013 PASSED IN R.A.
NO.44/2012 ON T HE FILE OF THE ADDL. SENIOR CIVI L JUDGE
AND JMFC., HOSPET, DISMISSING THE APPEAL BY CONFIRMING
THE JUDGMENT AND DECREE DATED 23.01.2012 PASSED IN
O.S. NO.96/2008 ON THE FILE OF THE CIVIL JUDGE AND
JMFC., AT HAGARI BOMMANAHALI, DECREEING THE SUIT FILED
FOR DECLARATION AND SEPARATE POSSESSION.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT , DELIVERED THE FOLLOWING:
JUDGMENT
Challenging judgment and decree dated 22.03.2013 passed by Additional Senior Civil Judge & JMFC, Hospet 3 (for short, "first appellate Court") in R.A. No.44/2012, dismissing appeal and confirming judgment and decree dated 23.01.2012 passed by Civil Judge & JMFC, Hagaribommanahalli (for short, "trial Court") in O.S. No.96/2008, decreeing suit filed for partition and separate possession, this Regular Second Appeal is filed.
2. Appellant herein was defendant no.1 before trial court and appellant in first appeal. Respondents no.1 and 2 herein were plaintiffs no.1 and 2 before trial Court and respondents no.1 and 2 in appeal. Respondent no.3 herein was defendant no.2 in the suit and respondent no.3 in appeal. For the sake of convenience, parties to this appeal are referred to by their ranks before trial Court.
3. It is case of plaintiffs that he filed O.S. no.96/2008 seeking for declaration that plaintiffs no.1 and 2 are entitled for 1/3 r d share each or any legal share in respect of 'B' schedule property and for separate possession thereof; and to appoint Court Commissioner for division of 'B' schedule properties by metes and bounds etc. 4
4. It was stated that 'B' schedule properties originally belong to propositus Smt K. Shantavva, who was having only one son by name Hanumappa. Said Hanumappa had three sons viz., Devendrappa, Hanumantappa and Anjineppa. Plaintiffs are wife and daughter of Devendrappa; while Hanumantappa was defendant no.1 and Halamma d/o Anjineppa was defendant no.2. It was stated that after death of Shantamma, 'B' schedule properties were inherited by Hanumappa, who also died in the year 1985. Thereafter, Anjineppa died in the year 1998. As 'B' schedule properties were joint family properties, plaintiffs were in peaceful possession and enjoyment of same. There was no partition taken place between the parties. But, when they demanded defendant no.1 for partition, they were denied their share constraining him to file suit.
5. Upon service of suit summons, defendants entered appearance. Defendant no.1 filed written statement admitted genealogy and relation between plaintiffs and defendants. But, he asserted that there was prior partition between plaintiff no.1, father of defendant 5 no.2 (a) to 2(c) on 10.06.1984, wherein plaintiff no.1 had given up share of her husband in lieu of discharge of liabilities of her husband by executing document on stamp paper. Thereafter, defendants discharged debts of husband of plaintiff no.1 and also given eight goats and one lamb to her. It was further stated that Devendrappa had also executed an agreement and borrowed Rs.1,000/- from one M.D.Ramanna in the year 1979, which was cleared by defendant no.1 on 01.07.1985. Thereafter said property came in possession of defendant no.2 and Anjineppa. Thereafter there was partition between defendant no.1 and defendant no.2 in the presence of elders on 13.02.2003 and since then defendant was in possession of suit properties. Defendant no.2 adopted written statement filed by defendant no.1.
6. Based on pleadings, trial court framed following issues:
1. Whether the plaintiffs prove that, the plaintiffs and defendants are members of joint family and that the plaintiffs are entitled 1/3 r d share each in schedule properties of the said joint family?6
2. Whether the plaintiffs further prove that, there was no partition took place between the parties as such, they have got legal share in the suit schedule properties as alleged in the plaint?
3. Whether the defendants, prove that, there was a partition between first plaintiff and defendant No.1 and husband of 2nd defendant late.
Anjinappa in the year 10.06.1984, and 1 s t plaintiff has given up her share in lieu of discharge of liabilities of her husband and she has executed document to that effect on a stamp paper, as alleged in written statement?
4. Whether the defendants prove that, there was a partition between first defendant and the 2 n d defendant on 13.02.2003, and they are in possession and enjoyment of the properties fallen to their share as per said partition as alleged in the written statement?
5. Whether plaintiffs are entitled for the relief of partition and separate possession as sought for?
6. What order or decree?
7. Thereafter, plaintiffs got themselves examined as PW1 and PW3. They also examined an independent witness as PW2. Exhibits P1 to P7 were marked. On behalf of defendants, defendant no.1 was examined as DW1. 7 Four other witnesses were examined as DWs2 to DW5. Exhibits to D1 to D6 were marked.
8. On consideration, trial court answered issue nos.1, 2 and 5 in affirmative and issue nos.3 and 4 in negative and issue no.6 by decreeing suit. Aggrieved thereby, defendant no.1 filed appeal in R.A.No.44/2012 on several grounds. It was contended that trial court failed to consider oral and documentary evidence properly and not framed proper issues. It was contended that trial court failed to consider Ex.D1- partition deed executed between Devendrappa and his brothers in terms of which, 'B' schedule properties fell to his share. Without considering same, trial court decreed the suit.
9. On above grounds, first appellate Court framed following points for its consideration:
1. Whether the plaintiffs prove that, the plaintiffs and defendants are members of joint family and the plaintiffs are entitled 1/3 r d share each in schedule properties of the said joint family?
2. Whether the plaintiffs further prove that, there was no partition took place between the parties as such, they have 8 got legal share in the suit schedule properties as alleged in the plaint?
3. Whether the defendants prove that there was a partition between first plaintiff and defendant No.1 and nd husband of 2 defendant late Anjinappa in the year 10.06.1984 and 1 s t plaintiff has given up her share in lieu of discharge of liabilities of her husband and she has executed document to that effect on a stamp paper, as alleged in written statement?
4. Whether the defendants prove that, there was a partition between first defendant and the 2 n d defendant on 13.03.2003, and they are in possession and enjoyment of the properties fallen to their share as per said partition as alleged in the written statement?
5. Whether plaintiffs are entitled for the relief of partition and separate possession as sought for?
6. What order or Decree?"
10. On consideration, first appellate court answered point Nos.1 and 2 in affirmative, point Nos.3 and 4 in negative and point No.5 by dismissing the appeal. Aggrieved thereby, this Regular Second Appeal is filed.
11. Sri H.R.Gundappa appearing along with Sri Manjunath G. Patil, learned counsel for appellant submitted that impugned judgment and decree passed by 9 both courts were illegal, contrary to law and evidence on record. It was contended that both courts erred in holding that 'B' schedule properties were ancestral properties. Trial court erred in its conclusion that there was prior partition between plaintiff, appellant and husband of respondent no.3. It was contended that by executing an agreement drawn on a stamp paper, plaintiff no.1 had given up her share in lieu of discharge of liabilities of her husband Devendrappa. Both courts erred in overlooking evidence which established that debts of Devendrappa were cleared. It was also contended that suit was barred by limitation, which was ignored.
12. Learned counsel submitted that following substantial questions of law would arise in this appeal:
1. Whether both courts erred in decreeing plaintiffs' suit ignoring evidence that plaintiff no.1 has given up her share in lieu of discharge of liabilities of her husband by executing document on stamp paper on 10.06.1984?
2. Whether both courts erred in decreeing plaintiffs' suit ignoring that plaintiffs' suit was barred by limitation?10
3. Whether there is non-consideration of material oral and documentary evidence i.e.,Ex.D1 to D6?
13. On the other hand Sri Laxman T. Mantagani, learned counsel for respondent supported impugned judgment and opposed appeal. It was submitted that instant appeal was filed challenging concurrent findings, was devoid of merits, thus liable for dismissal.
14. Heard learned counsel for appellant. Perused impugned judgment and decree and record.
15. From above submission, it is not in dispute that plaintiffs and defendants are descendants of common ancestor, propositus herein. It is also not in dispute that 'B' schedule properties were ancestral joint family properties of propositus. It is also not in dispute that 'B' schedule properties devolved upon Hanumappa. While plaintiffs contended that Devendrappa being one of the three sons of Hanumappa, entitled for 1/3 r d share in 'B' schedule properties, defendants opposed claim on sole ground that there was prior partition between 11 Devendrappa and his brothers, in the presence of elders on 10.06.1984. It is their case that during partition plaintiff no.1 executed an agreement on stamp paper giving up share of her husband (Devendrappa) in lieu of discharge of his liabilities and in pursuance of same, defendants had cleared Devendrappa's debts. Apart from same, plaintiff no.1 was also given eight goats and one lamb. It is their case that prior oral partition was acted upon and therefore, plaintiffs were not entitled for any share in 'B' schedule properties.
16. Normally, in a suit for partition of joint family properties, burden to prove existence of joint family and joint family property lies on plaintiff. As defendants have admitted these aspects, but opposing claim for partition on the ground of prior partition, therefore, burden of establishing same lies on defendants.
17. In order to establish prior partition, defendant no.1 examined himself as DW.1 and reiterated contents of written statement. In order to corroborate his evidence, four other witnesses were examined. DW.2 in his 12 examination-in-chief supported defendants' case and stated about assembly of elders on 10.06.1984 and execution of agreement by plaintiff no.1. During cross- examination, he admitted that there was no mention of prior partition in his examination-in-chief. He admitted that there was no partition.
18. DW.3 is scribe of agreement dated 10.06.1984. He deposed that on 10.06.1984, he was asked to prepare partition deed as per instructions given by plaintiff no.1 - Kotramma and elders, those who had assembled there. After preparing agreement, plaintiff no.1 affixed her left hand thumb impression agreeing to relinquish share of her husband in lieu of defendants' clearing off his debts. DW3 further stated that after contents were read over, plaintiff no.1 affixed her thumb impression in his presence, which he identified. He also deposed about plaintiff no.1 being given eight goats and one lamb. During cross- examination, it is elicited that partition deed was written on stamp paper of the year 1982, purchased in the name of Shankarswamy of Hanasi. It is also elicited that after affixture of their signature, he signed as a witness. He 13 admits that he did not enquire about particulars of joint family properties at that time.
19. DW4, one of the elders, who assembled for effecting partition between plaintiffs and defendants. He deposed that Devendrappa - husband of plaintiff no1 was running a hotel independently. After his death, plaintiff no.1, her father and other village elders assembled for effecting partition. At that time, as plaintiff no.1 was unable to clear debts of her husband, she relinquished share of her husband in joint family properties in favour of her brother-in-law and executed agreement on stamp paper. In witness of said agreement, he along with other elders signed same. But, during cross-examination, he admits that there was no enquiry about entries in record of rights or extent to lands assigned. He further admits that there was no proposal for drawing share of Anjineppa. He also admitted that there was no partition in the family.
20. DW5, another village elder deposed that Devendrappa was running a hotel and living separately. 14 For said purpose, he had taken loan from several persons. After his death, his wife - plaintiff no.1 was unable to continue on good terms with her brother-in-law , therefore, elders were assembled for effecting partition on 10.06.1984. As per agreement, partition deed was written and signed by plaintiff no.1 giving up her share in favour of her brother-in-law, in lieu of clearing of her husband's debts. During cross-examination, he admits that total amount of debt was about Rs.25,000/-. DW.5 also admits Ex.D1 was written on stamp paper purchased in the name of Shankarswamy Hanasi, during 1982. He stated that stamp paper was brought by plaintiff herself.
21. A perusal of contents of Ex.D1 reveals that Devendrappa died on 10 t h of May. About 7 years prior to his death, partition was effected, since then plaintiff and her husband were living separately. During those seven years, Devendrappa incurred loss in money lending business. In order to discharge this burden, plaintiff no.1 agreed to relinquish her interest in immovable properties in favour of her brothers-in-law viz., Hanumanthappa and Anjineppa on the condition that, they clear all debts of her 15 husband. In furtherance of Ex.D.1, defendants claim to have cleared loan of Devendrappa and obtained acknowledgement marked as Exs.D.2 and D.3. Ex.D.4 is agreement dated 15.06.1979. Ex.D.6 is partition deed executed between defendants no.1 and 2 on 13.02.2003.
22. Firstly, it is the case of defendants that there was prior partition on 10.06.1984, wherein plaintiff no.1 executed relinquishment deed in favour of defendants no.2 and 3. Though, defendant no.1 examined as DW1 and DW.2 deposed to said effect, contents of Ex.D.1, however, reveal that partition occurred 07 years prior and after partition, Devendrappa and plaintiffs were residing separately. There is contradiction as to date of partition. Further, as per DW5, stamp paper for preparing partition deed was brought by plaintiff, but admittedly, Ex.D.1 was prepared on a stamp paper purchased in the name of Shankaraswamy Hanasi, in the year 1982. There is no demarcation of share of Devendrappa, Hanumathappa or Anjineppa.
16
23. Further as on 10.06.1984, plaintiff no.2 was already born. (Her age is shown as 26 years as on date of suit i.e, 2003). In the absence of relinquishment by plaintiff no.2, defendants' contention would fall short. Apart from above, DW2 admits that there was no partition. Though, scribe - DW3, states that he prepared agreement, he does not state who brought stamp paper. He admits that stamp papers were more than two years old and purchased in the name of Shankarswamy of Hanasi, but offers no explanation. DW5 states that stamp paper was brought by plaintiff no.1. While DWs.3 to 5 deposed that Devendrappa was running a hotel and incurred loss. As per contents of Ex.D1, Devendrappa was doing money lending business. But, as per deposition of PW.1 - Devendrappa was running a kirani shop. A suggestion is put to PW1 that after separating from defendant no.1, Devendrappa was running a hotel. It is also suggested that he was doing commission business in seeds and fertilizer, which contradicts with pleading in written statement. Defendant no.1 has also sought to contend that there was partition effected between him and 17 defendant no.2 on 13.02.2003 and produced partition deed as Ex.D6.
24. On considering said evidence, trial court held that defendants failed to prove prior partition and decreed suit for 1/3 r d share in 'B' schedule properties. In view of inconsistencies narrated above, findings of trial court would be justified. While passing decree, trial court has also taken note of fact that despite alleged relinquishment, mutation entries continued in the name of propositus and there was no explanation for not reporting relinquishment to revenue authorities for mutation.
25. Though, a contention is urged that plaintiffs' suit was barred by limitation, on perusal of written statement by defendants, it is seen that no specific plea regarding limitation was urged before trial court. No issue was framed. Even in appeal, no ground regarding limitation is urged. First appellate court has not raised any point regarding limitation.
26. Upon re-appreciation of entire oral and documentary evidence, first appellate court affirmed 18 findings of trial court. This appeal is against concurrent finding of fact regarding prior partition with due reference to evidence on record. None of above proposed substantial questions of law arise for consideration.
In the result, I pass following:
ORDER Appeal is dismissed.
Sd/-
JUDGE K GK / PS G