Karnataka High Court
Shri. Prabhakar S/O Premanathsa ... vs Dr. Suvarna W/O Amit Khatawate on 25 May, 2023
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RFA No. 100343 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 25TH DAY OF MAY, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO. 100343 OF 2017 (PAR/POS)
BETWEEN:
1. SHRI PRABHAKAR S/O. PREMANATHSA MEHARWADE,
AGE ABOUT 52 YEARS, OCC: BUSINESS,
R/O: PLOT NO.209, NAVEEN PARK,
KESHWAPUR, HUBBALLI-580023.
2. SHRI RAMAKRISHNA S/O. PREMANATHSA MEHARWADE,
AGE ABOUT 49 YEARS,
OCC: BUSINESS, R/O: C/O. VIJAYALAXMI STEEL,
TRADERS NEW COTTON MARKET,
GIRIJA A
BYAHATTI BESIDE HOTEL PEACOCK, HUBBALLI-580029.
Digitally signed by
GIRIJA A BYAHATTI 3. SUNDARABAI W/O. PREMANATHSA MEHARWADE,
Location: HIGHCOURT
OF KARNATAKA-
DHARWAD BENCH
AGE ABOUT 74 YEARS, OCC: HOUSEHOLD,
Date: 2023.06.06
13:22:15 +0530 R/O: PLOT NO.209, NAVEEN PARK,
KESHWAPUR, HUBBALLI-580023.
...APPELLANTS
(BY SRI VISHWANATH BICHAGATTI & SRI. M. R. MULLA,
ADVOCATES)
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RFA No. 100343 of 2017
AND:
1. DR. SUVARNA W/O. AMIT KHATAWATE
AGE ABOUT 39 YEARS, OCC: DENTIST,
R/O: FLAT NO.201, SANNIDHI RESIDENCY,
4TH MAIN, 2ND CROSS, NRUPATUNGANAGAR,
JP NAGAR, 7TH PHASE, BENGLAURU-560002.
2. SUMANGALA W/O. DATTUSA ATHANI,
AGE ABOUT 54 YEARS, OCC: HOUSEHOLD,
R/O: H.NO.102, KALBURGI ELEGANCE,
NEAR SUB-JAIL, RAJAJI NAGAR,
HUBBALLI-580032.
...RESPONDENTS
(BY SRI. R. M. JAVED, ADVOCATE FOR R1;
R2 - SERVED AND UNREPRESENTED)
THIS REGULAR FIRST APPEAL FILED UNDER SEC.96 OF
THE CPC., PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE DATED 01.09.2017 PASSED BY THE LEARNED 2ND
ADDL. SENIOR CIVIL JUDGE HUBBALLI IN O.S. NO.208/2016,
BY DECREEING THE SUIT IN PART, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed challenging the judgment and preliminary decree dated 01.09.2017, passed in O.S.No.208/2016 by the II Additional Senior Civil Judge, Hubballi (hereinafter referred to as 'the trial Court', for short).
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2. For the sake of convenience the parties are referred to as per their rankings before the trial Court. Appellants are defendants No.1, 2 and 4. Respondent No.1 is the plaintiff. Respondent No.2 is defendant No.3.
3. The brief facts leading to the filing of this appeal are under:
3.1. The plaintiff filed a suit for partition and separate possession of non-agricultural properties on the ground that the paternal grandfather of the plaintiff late Mahadevsa had purchased the suit properties and after his demise there was a partition and the said properties were fallen to the share of the father of the plaintiff. The father of the plaintiff died on 26.06.2015, as such the plaintiff being the coparcener is entitled for share in the suit schedule properties. The plaintiff requested the defendants to effect a partition, but the -4- RFA No. 100343 of 2017 defendants refused to effect the partition, hence cause of action arose for the plaintiff to file a suit for partition and separate possession and hence the suit.
3.2. Defendants No.1, 2 and 4 filed a common written statement contending that the suit properties are the self-acquired properties of the father of the plaintiff and father of the plaintiff had gifted the suit properties in favour of defendants No.1 and 2 under the registered gift deed dated 16.10.2014. As such, defendants No.1 and 2 are the absolute owners of the suit schedule properties. It is contended that the suit for mere partition without seeking cancellation of the registered gift deed is not maintainable in law and the court fee paid is insufficient and prayed for dismissal of the suit. 3.3. The trial Court on the basis of the pleadings of the parties framed the following issues: -5- RFA No. 100343 of 2017
(1) Whether the plaintiff proves that she and the defendants are the members of Hindu undivided joint family and further proves that suit properties and they are in joint possession of the suit properties? (2) Whether the defendants prove that suit is not maintainable without seeking the relief for cancellation of gift deed? (3) Whether the plaintiff is entitled for 1/4th share in the suit properties?
(4) what order or decree?
3.4. In order to substantiate the case of the plaintiff, the plaintiff got examined herself as PW1 and got marked documents at Exhibits P1 to P12 and defendant No.1 was examined himself as DW1 and examined one witness as DW2 and got marked document at Exhibit D1.
3.5. The trial Court after recording the evidence and considering the oral and documentary evidence, answered issue No.1 in the affirmative, issue No.3 in partly affirmative and issue No.2 in the -6- RFA No. 100343 of 2017 negative and consequently decreed the suit of the plaintiff. It is ordered and decreed that the plaintiff is entitled for partition and separate possession to 1/5th share in the suit schedule properties by metes and bonds and the relief of mesne profit is kept open for separate enquiry under Order 20 Rule 12 of the Code of Civil Procedure. Defendants No.1, 2 and 4 aggrieved by the judgment and preliminary decree filed this appeal.
4. Heard the learned counsel for defendants No.1, 2 and 4 and also learned counsel for the plaintiff. 5. Learned counsel for defendants No.1, 2 and 4 submits that the trial Court has committed an error in decreeing the suit of the plaintiff. He submits that suit properties are the self acquired properties of the father of plaintiff and defendants No.1, 2 and 4 and father of plaintiff had gifted the suit properties in favour of defendants No.1 and 2 under the registered -7- RFA No. 100343 of 2017 gift deed dated 16.10.2014, as such they became the absolute owners of the suit properties; He also submits that the trial Court has not considered that mere suit for partition and separate possession without seeking for the relief of cancellation is not maintainable in law. He further submits that the trial Court has not properly considered the evidence and material placed on record and has come to a wrong conclusion. Hence on these grounds he prays to allow the appeal.
6. Per Contra, learned counsel for the plaintiff submits that, the plaintiff and defendants are the members of Hindu Undivided family. He submits that, admittedly the suit properties were owned and possessed by the grandfather of plaintiff and defendants and the father of the plaintiff acquired the suit properties from his father and the said properties are the ancestral joint family properties of the plaintiff and defendants. He also submits that, as per Section 6 of the Hindu -8- RFA No. 100343 of 2017 Succession Amendment Act, 2005, the plaintiff being a daughter is coparcener by birth. To buttress his arguments, he has placed Reliance on the judgment of Hon'ble Apex Court in the case of in the case of Vineeta Sharma Vs. Rakesh Sharma reported in (2020) 9 SCC 1. Hence he submits that the trial Court was justified in decreeing the suit. He further submits that the plaintiff is not a party to the registered gift deed and hence the question of challenging the registered gift deed would not arise. 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 all these grounds he prays to dismiss the appeal.
7. Heard and perused the records and considered the submissions of the learned counsel for the parties. The points that would arise for our consideration are:
i. Whether the plaintiff proves that the plaintiff and defendants are the members of the Hindu -9- RFA No. 100343 of 2017 Undivided joint family and further proves that the suit properties are the joint family properties of plaintiff and defendants. ii. Whether the defendants proves that the registered gift deed executed by the father is legal and binding on the plaintiff. iii. Whether the defendants have made out any grounds for interference with the impugned judgment and decree?
iv. What order or decree? RE:POINT NO.1
8. It is the case of the plaintiff that the suit properties were owned and possessed by the grand father of the plaintiff and defendants No.1 to 4. After his demise, partition was effected between the plaintiff's father and his brother and in the said partition, the suit properties were fallen to the share of plaintiff's father and the father of the plaintiff died on 26.06.2015 leaving behind the plaintiff and defendants. Further there was no partition effected between the plaintiff and defendants, and plaintiff
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and defendants are the members of Hindu undivided joint family. The plaintiff demanded for partition and separate possession in the suit properties, but the defendants refused to effect partition. The defendant filed a written statement contending that the suit properties are the self-acquired properties of the father of the plaintiff and father of the plaintiff executed the registered gift deed in favour of defendants No.1 and 2. By virtue of the registered gift deed, defendants No.1 and 2 became the absolute owners of the suit schedule properties. The plaintiff has no right or title to claim any share in the suit schedule properties.
9. The plaintiff in order to substantiate her case, examined herself as PW1. She has reiterated the plaint averments in examination-in-chief and produced the death certificate of the father of the plaintiff marked as Ex.P1, produced the CTS extract in respect of the suit schedule properties marked as
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RFA No. 100343 of 2017Exs.P2 and P3, mutation entries at Exs.P4 and P5, hand sketch at Exs.P6, Exs.P7 to P10 are the photographs, Ex.P11 is the photo bill and Ex.P12 is the CD. In the course of cross-examination, nothing has been elicited from the mouth of this witness.
10. On the contrary, defendant No.1 was examined as DW1 and he has reiterated the written statement averments in the examination-in-chief, but in the course of cross-examination, he has categorically admitted that the suit properties are inherited by the grand father of plaintiff and defendants No.1, 3 and 4 i.e., his father, in the partition which was taken place in the year 1979 and suit properties fallen to the share of their father. The defendant also admitted the relationship of plaintiff with defendants. In view of the admission of defendants that the suit properties are the ancestral and joint family properties of the plaintiff and defendants, the plaintiff has proved that the suit properties are the joint
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RFA No. 100343 of 2017family properties. Admittedly, the defendants have not produced any record to show that there is a partition between the plaintiff and defendants except taking a defence in the written statement that the father of the plaintiff executed a registered gift deed in favour of defendants No.1 and 2.
11. The defendants have taken a contention in the written statement that the properties inherited from his father are self-acquired properties and they are not joint family properties. The Hon'ble Supreme Court has an occasion to consider the said issue in the case of Arshnoor Singh Vs. Harpal Kaur and others reported in AIR 2019 SC 3098, wherein the Hon'ble Apex Court held that the property inherited by a male Hindu from his father, father's father or father's father's father is an ancestral property. The essential feather of ancestral property, according to Mitakshara Law, is that the sons, grandsons and great grandsons of the person
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RFA No. 100343 of 2017who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a corparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship.
12. Admittedly, the father of the plaintiff has inherited the properties from his father and the said properties will be continued to be the ancestral properties. In view of the law laid down by the Hon'ble Apex Court in the case of Arshnoor Singh (supra), we held that the properties inherited by the father of the plaintiff and defendants are the ancestral and joint family properties. The plaintiff and defendants are the members of Hindu undivided joint family and also the suit schedule properties are the ancestral joint family
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RFA No. 100343 of 2017properties. In view of the above, we answer point No.1 in the affirmative.
RE: POINT NO.2
13. It is the case of the defendants that the father of plaintiff and defendants executed a registered gift deed in favour of defendants No.1 and 2. On the basis of the registered gift deed, defendants No.1 and 2 became the absolute owners and in possession of the suit schedule properties. Admittedly, as we have recorded in point No.1 above that the suit schedule properties are the ancestral properties of the plaintiff and defendants. Admittedly, the parties are Hindus and are bound by Mitakashara Law, if at all the properties are ancestral properties.
14. Section 256 of the Mulla Hindu Law, 21st edition, reads as under:
256. Gift of undivided interest.- According to Mitakshara law as applied in all the states, no coparcener can dispose of his undivided interest in
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coparcenary property by gift. Such transaction being void altogether, there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of other coparceners. Admittedly, the father of the plaintiff has no right to dispose of his undivided interest in the coparcenery property by gift. He may make a gift of his interest with the consent of other coparceners. Admittedly the father of plaintiff has not taken the consent of plaintiff while executing the registered gift deed. As per Section 256 of Mulla Hindu Law, the said document is void. In view of the above said discussion, we answer point No.2 in the negative. RE:POINT NO.3
15. In view of answer to point Nos.1 in the affirmative and point No.2 in the negative, the trial Court considering the pleadings and oral and documentary evidence has rightly decreed the suit of the plaintiff.
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RFA No. 100343 of 2017In view of the above discussion, point No.3 is also answered in the negative.
Re: Point No.4
16. In view of the above discussion, we would like to proceed to pass the following:
ORDER i. Appeal is dismissed.
ii. The judgment and decree dated 01.09.2017 passed by the II Addl. Senior Civil Judge, Hubbali, in O.S.No.208/2016 is confirmed. iii. No order as to costs.
SD/-
JUDGE SD/-
JUDGE gab/ct-cmu List No.: 1 Sl No.: 1