Karnataka High Court
Ningappa vs Dharmanna And Ors on 21 November, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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NC: 2024:KHC-K:8699
RSA No. 200267 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO. 200267 OF 2024 (PAR/POS)
BETWEEN:
NINGAPPA S/O RAYAPPA HIREKURABAR,
AGED ABOUT 64 YEARS, OCC: AGRICULTURE,
R/O. HOKKUNDI, TQ. BABALESHWAR,
DIST. VIJAYAPURA
...APPELLANT
(BY SRI RAVI B. PATIL, ADVOCATE)
AND:
Digitally signed by
1. DHARMANNA S/O SIDARAYA HOKKUNDI,
SHIVALEELA AGED ABOUT 69 YEARS, OCC: AGRICULTURE,
DATTATRAYA R/O. AGASNAL VILLAGE, TQ. BABALESHWAR,
UDAGI
Location: HIGH DIST. VIJAYAPURA-586101.
COURT OF
KARNATAKA
2. SHARANAPPA S/O DHARAMANNA HOKKUNDI,
AGED ABOUT 44 YEARS, OCC: AGRICULTURE,
R/O. AGASNAL VILLAGE, TQ. BABALESHWAR,
DIST. VIJAYAPURA-586101.
3. AMASIDDA S/O DHARAMANNA HOKKUNDI,
AGED ABOUT 39 YEARS, OCC: AGRICULTURE,
R/O AGASNAL VILLAGE, TQ. BABALESHWAR,
DIST. VIJAYAPURA-586101.
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RSA No. 200267 of 2024
4. SHRISHAIL S/O DHARAMANNA HOKKUNDI,
AGED ABOUT 37 YEARS, OCC: AGRICULTURE,
R/O. AGASNAL VILLAGE, TQ. BABALESHWAR,
DIST. VIJAYAPURA-586101.
5. YANAKAWWA W/O BANAPA KODRI,
AGED ABOUT 61 YEARS, OCC: AGRICULTURE,
R/O. CHIKKA PADASALAGI, TQ. JAMKHANDI,
DIST. BAGALKOT-587101.
6. SHANTABAI W/O BITTAPPA NATIKAR,
AGED ABOUT 58 YEARS,
OCC: AGRICULTURE AND H H WORK,
R/O. KATRAL VILLAGE, TQ. BABALESHWAR,
DIST. VIJAYAPURA-586101.
...RESPONDENTS
(BY SRI GANESH NAIK, ADVOCATE FOR R1 TO R4 AND R6;
SRI MANVENDRA REDDY, ADVOCATE FOR R5)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE IN
RA.NO.67/2022 DATED 03-04-2024 PASSED BY THE
ADDITIONAL SESSIONS JUDGE FAST TRACK SPECIAL COURT-I
AT VIJAYAPURA, INSOFAR RELATES TO REJECTION OF THE
CLAIM OF THE APPELLANT CLAIMING ABSOLUTE RIGHT
PURSUANT TO THE ORAL PARTITION OVER THE SUIT
PROPERTY AND CONSEQUENTLY TO SET ASIDE THE JUDGMENT
AND DECREE OF THE TRIAL COURT IN OS.NO.241/2020 DATED
08.06.2022 PASSED BY THE COURT OF IV ADDITIONAL
SENIOR CIVIL JUDGE AT VIJAYAPURA AND CONSEQUENTLY TO
DISMISS THE SUIT OF THE RESPONDENTS/PLAINTIFFS IN
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RSA No. 200267 of 2024
ENTIRETY. AND PASS SUCH OTHER ORDER/S AS THIS HON'BLE
COURT DEEMS FIT IN THE CIRCUMSTANCES OF THE CASE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL) The present appeal is filed by the appellant/defendant aggrieved by the judgment and decree dated 08.06.2022 passed in O.S.No.241/2020 on the file of IV-Addl. Senior Civil Judge, Vijayapura (hereinafter referred to as 'the Trial Court' for short) and the judgment and order dated 03.04.2024 passed in R.A.No.67/2022 on the file of the Addl. Sessions Judge Fast Track Special Court-I, Vijayapura (hereinafter referred to as 'the First Appellate Court' for short) to the extent rejecting the claim of the appellant claiming absolute right over the suit schedule properties pursuant to a oral partition.
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NC: 2024:KHC-K:8699 RSA No. 200267 of 2024
2. The above suit in O.S.No.241/2020 is filed by the plaintiffs, who are respondents herein seeking relief of partition and separate possession in respect of following schedule properties;
Schedule - A
Sl.No. R.S.No. Area Assessment Market value
A-Gs A-G Rs. Ps
1 33/1 4-16 1.00 Rs.8,00,000/-
Schedule - B
VPC No. Market Value
68/B Rs.4,00,000/-
3. It is the case of the plaintiffs that they along with defendant constituted Hindu undivided family. One Rayappa Balappa Herekurabar was the propositus, who had a son and there daughters. Genealogy is as under:
Genealogy Rayappa (propositus) Ningappa Mayawwa Yankawwa Shantabai (Deft-1) (dead) (plf-5) (plf-6) Dharmanna (plf-1) Amasidda Sharanappa Shrishail (plf-2) (plf-3) (plf-4) -5- NC: 2024:KHC-K:8699 RSA No. 200267 of 2024 Upon the demise of Rayappa Balappa Herekurubar, the plaintiffs along with defendant succeeded to the property in joint possession and enjoyment of suit properties.
4. That on 15.10.2020, plaintiffs had approached the defendant requesting for partition and allotment of their legitimate share which was refused. The plaintiffs had applied for revenue records and found the defendant by filing a false varadi had obtained mutation of his name in the revenue records vide MR.No.H2/2012-13. Contending that plaintiffs had allegedly relinquished their rights in the suit schedule properties in favor of the defendant. Hence, the suit.
5. The defendant in the written statement except admitting the relationship denied the other averments and allegations made in the plaint. He further contended that upon the demise of their father, plaintiffs had relinquished their share right, title and interest over the suit schedule properties in favor of the defendant under a oral partition by receiving golden ornaments from the defendant. Based -6- NC: 2024:KHC-K:8699 RSA No. 200267 of 2024 on the said arrangement, name of the defendant was mutated in the revenue records. As such, sought for dismissal of the suit.
6. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration:
1. Whether plaintiffs prove that suit property are ancestral and joint family property?
2. Whether defendant proves that plaintiffs No.5 & 6 and Mayawwa have received gold ornaments and money and relinquished their right over the suit property in favour of defendant as contended by defendant?
3. Whether plaintiffs are entitled for 3/4th share in the suit properties as prayed for?
4. What order or decree?
7. In order to prove their case, plaintiff Nos.1 and 2 were examined as PWs.1 and 2 and got marked documents at Exs.P1 to P5. The defendant got examined himself as DW.1 and no documents were marked on his behalf.
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8. On appreciation of evidence, the Trial Court answered issue Nos.1 and 3 in the affirmative and issue No.2 in the Negative and consequently decreed the suit holding that the plaintiff Nos.1 to 4 together are entitled for 1/4th share and plaintiff Nos.5, 6 and defendant are entitled for 1/4th share each in the suit schedule properties.
9. Being aggrieved by the same, the defendant preferred a regular appeal in R.A.No.67/2022. Considering the grounds therein, the First Appellate Court had framed the following points for its consideration:
1. Whether defendant proves that he has derived absolute right, title, and interest over item No.1 of suit property as per alleged relinquishment deed?
2. Does application filed under Order XVI Rule 6 of Code of Civil Procedure at I.A.No.II deserve to be allowed?
3. Whether settlement arrived at in compromise petition filed under Order XXIII Rule 3 of Code of Civil Procedure is considerable?
4. What order?-8-
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10. It appears in the pendency of the appeal, a compromise was entered into between the plaintiff Nos.1 to 4 & 6 and defendant. In terms of which plaintiff Nos.1 to 4 and 6 had given up their shares in the suit schedule properties in favour of the defendant. The First Appellate Court accepted the compromise by holding that plaintiff Nos.1 to 4 and 6 giving up their share in favour of the defendant would not in any way affect the share of plaintiff No.5 as declared by the Trial Court.
11. That the defendant before the First Appellate Court along with the said appeal had also filed an application under Order XVI Rule 6 of Code of Civil Procedure seeking for a direction to summon the Tahsildar, Vijayapura to produce the alleged relinquishment deed as stated in the application.
12. The First Appellate Court considering the merits of the application and contents of Ex.P3, which is mutation register extract No.MR-H-2/2012-13 has held that there was no relinquishment deed that was ever executed by -9- NC: 2024:KHC-K:8699 RSA No. 200267 of 2024 plaintiff Nos.5 and 6 and deceased Mayawwa in favour of defendant.
13. The First Appellate Court has also found that the name of the defendant had been mutated in the revenue records based on alleged watni patra. Thus, the First Appellate Court found inconsistency in the averments made by the defendant in the said application.
14. Further, the First Appellate Court at paragraph No.21 of its judgment referring to the judgment of the Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma and Others reported in (2020)9 SCC 1, wherein the Apex Court at paragraph No.137 has held that-
"in view of the rigour of provisions of Explanation to Section 6(5) of the 1956 Act, a 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 a decree of a Court."
Accordingly, rejected the application along with the main appeal.
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15. Aggrieved by the same, the appellant/defendant is before this Court.
16. Sri. Ravi B. Patil, learned counsel for the appellant/defendant reiterating the grounds urged in the memorandum of appeal submitted that the First Appellate Court ought not to have rejected the application filed by the defendant seeking direction to the concerned Tahsildar to produce the records pertaining to the varadi reporting oral partition by the parties. He further submits that the contention of the appellant/defendant of there being a relinquishment of the shares by the plaintiffs specifically admitted in the form of compromise petition has been lost sight of by the First Appellate Court. That since the name of appellant/defendant had been entered into the revenue records based on the joint varadi given by the plaintiffs, the First Appellate Court erred in relying upon paragraph No.137 of judgment of the Apex Court in the case of Vineeta Sharma (supra), which is not applicable to the facts of the present case. Thus, he submits that the appeal
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NC: 2024:KHC-K:8699 RSA No. 200267 of 2024 gives rise to substantial question of law warranting consideration in the hands of this Court.
17. Per contra, Sri. Manvendra Reddy, learned counsel appearing for the respondent No.5 submits that both the Trial Court and the First Appellate Court have concurrently held that there was no oral partition which is finding and conclusion is based on the facts pleaded by the parties and the evidence led in that regard and the same cannot be interfered with in a second appeal. He further submits that even assuming that there was a relinquishment, no piece of evidence is produced by the defendant, which is admissible in the eyes of law. He further submits that in any event, the First Appellate Court while accepting the compromise has found the share of plaintiff No.5 would not be affected by the compromise entered into between the other plaintiffs and the defendant. Hence, no question of law would arise in that regard. Hence, seeks for dismissal of the appeal.
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18. Heard. Perused the records.
19. The relationship between the parties is not in dispute. The property belonging to the joint family consisting of plaintiffs and the defendant having been succeeded through their father is also not in dispute.
20. The claim set up by the defendant is relinquishment of shares by plaintiffs in any oral partition allegedly taken place during the year 2010-2011. Defendant is not clear as to whether it was oral partition or it was a relinquishment deed executed by the plaintiffs. The application filed by the defendant before the First Appellate Court under Order XVI Rule 6 of Code of Civil Procedure is for a direction to the Tahsildar to produce varadi and supporting document (relinquishment deed). It his specific case that plaintiffs relinquished their rights over the suit schedule properties in view of gold and money given by him in their favour. If, as rightly taken note by the First Appellate Court, the claim of defendant is based on purported relinquishment deed, the same needs
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NC: 2024:KHC-K:8699 RSA No. 200267 of 2024 to have been executed in the manner known to law i.e., by a registered instrument as mandatorily required under Section 17 of the Registration Act. It is not the case of the defendant that any such document was ever executed and registered. However, in the application and the affidavit accompanying the said application, at paragraph No.3, the defendant has deposed that there was oral partition between the parties, based on which a varadi was made to the revenue authorities resulting in mutation of his name in the revenue records vide MR.No.H-2/2012-13.
21. The First Appellate Court at paragraph No.21 of its judgment has taken note of this inconsistent stand taken by the defendant, wherein on the one hand the defendant claimed execution of relinquishment deed, on the other has contended oral partition. Both cannot go hand-in-hand.
22. In any event, in view of Section-6 of the Hindu Succession (Amendment) Act, 2005 a plea of oral partition is impermissible. This issue is settled by the Apex Court in
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NC: 2024:KHC-K:8699 RSA No. 200267 of 2024 the case of Vineeta Sharma vs. Rakesh Sharma and Others reported in (2020)9 SCC 1, wherein at paragraph No.137(v), the Apex Court has held as under:
"137. Resultantly, we answer the reference as under:
(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, 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 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.
23. The First Appellate Court has taken note of the aforesaid factual and the legal position of the matter and has accordingly rejected the request/application of the appellant/defendant for summoning the Tahsildar to produce varadi and supporting documents(relinquishment deed).
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24. As already noted above, the First Appellate Court at paragraph No.27 of the judgment has also observed that the compromise petition that has been entered into between plaintiff Nos.1 to 4 and 6 and the defendant would not in any way affect the share of plaintiff No.5 to the extent of her 1/4th share as declared by the Trial Court.
25. For the aforesaid reasons and analysis, this Court does not see the present appeal would pose any substantial question of law requiring consideration. Hence, I pass the following:
ORDER i. The appeal is dismissed.
ii. The judgment and decree passed by the Trial Court and the First Appellate Court are hereby confirmed.
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(M.G.S.KAMAL) JUDGE SDU LIST NO.: 1 SL NO.: 58 CT:PK