Karnataka High Court
Basayya S/O Nagayya Marasangayyanavar vs Siddryya S/O Nagayya ... on 13 March, 2023
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RSA No. 100720 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 100720 OF 2018
BETWEEN:
BASAYYA S/O NAGAYYA MARASANGAYYANAVAR
AGE: 45 YEARS,OCC: AGRICULTURE,
R/O: MANSUR,TQ AND DIST: DHARWAD.
...APPELLANT
(BY SRI. S B DODDAGOUDAR.,ADVOCATE)
AND:
1. SIDDRAYYA S/O NAGAYYA MARASANGAYYANAVAR
AGE: 52 YEARS,OCC: AGRICULTURE,
R/O: MANSUR,TQ AND DIST: DHARWAD.
2. IRAYYA S/O ONAGAYYA MARASANGAYYANAVAR
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: MANSUR,TQ AND DIST: DHARWAD.
3. SMT.KALLAVVA W/O NINGAYYA MATAPATI
Digitally
signed by
ANNAPURNA AGE: 54 YEARS,OCC: HOUSEHOLD WORK,
CHINNAPPA
ANNAPURNA DANDAGAL
CHINNAPPA
Location:
R/O: MANSUR,TQ AND DIST: DHARWAD.
DANDAGAL
HIGH
COURT OF
KARNATAKA
...RESPONDENTS
DHARWAD
(BY SRI. RAKESH M BILKI ADV. FOR SRI. SHIVARAJ C
BELLAKKI, ADVOCATE FOR R-1 TO R-3)
THIS RSA IS FILED U/SEC.100 OF CPC, 1908, AGAINST
THE JUDGEMENT & DECREE DTD:11.7.2018 PASSED IN
R.A.NO.34/2017 ON THE FILE OF THE I ADDITIONAL SENIOR
CIVIL JUDGE AND CJM., DHARWAD, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE
DTD:21.2.2017, PASSED IN O.S. NO.224/2010 ON THE FILE OF
THE II ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS-II COURT, DHARWAD PARTLY DECREEEING THE
SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
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RSA No. 100720 of 2018
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though the matter is listed for admission, with the consent of the learned counsel for parties, the matter is taken up for final disposal.
2. The present second appeal is filed by the defendant No.1 assailing judgment and decree dated 11.07.2018 passed in R.A.No.34/2017 on the file of the I Additional Senior Civil Judge and CJM., Dharwad, confirming the judgment and decree dated 21.02.2017 in O.S.No.224/2010 on the file of the II Additional Civil Judge and Judicial Magistrate First Class-II Court, Dharwad.
3. The parties herein are referred to as per their ranking before trial Court for the sake of convenience.
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4. Plaintiff-respondent No.1 has filed suit for partition and separate possession in respect of suit schedule properties.
5. The suit schedule properties are:
a) Agricultural land bearing Sy.No.98/1, measuring 4 Acres-30 Guntas, assessed at Rs.34-28, situated at Mansur + Sannasomapur village, Tq and Dist: Dharwad.
b) VPC No.39, the House and opne space, situated in Mansur + Sannasomapur village, Tq and Dist: Dharwad.
c) VPC No.222, the house and open space situated in Mansur + Sannasomapur village, Tq and Dist: Dharwad.
6. One Sri.Nagayya S/o Siddarayya Marasangayyanavar, is original propositus of plaintiff's and defendants and the suit schedule properties are the self acquired properties of deceased Sri.Nagayya. Smt.Kallavva is the first wife of deceased Sri.Nagayya and Sri.Basayya-defendant No.1 is their son, after the -4- RSA No. 100720 of 2018 death of Kallavva Nagayya married Chinnavva and plaintiff and defendant Nos.2 and 3 are their children and members of Hindu undivided family. It is averred that during the lifetime of Sri.Nagayya, he had executed a Will equally in favour of the children and handed over the said Will to Kallappa Yattinagudda of Manasur village. It is stated that the defendant No.1 had not agreed for partition in respect of VPC No.222 house and open space i.e. item no.1C suit schedule property. It is averred that defendant No.1 has entered his name in the record of rights and constructed a house without giving any share in respect of item no.1C of the suit schedule property.
7. Pursuant to the summons issued by the trial Court, the defendants appeared and filed their written statement.
8. Defendant No.1 specifically contended that VPC No.222 item No.1C is self acquired property of the defendant No.1 and plaintiff and other defendants -5- RSA No. 100720 of 2018 have no right over the suit schedule property and sought to dismiss the suit.
9. The defendant Nos.2 and 3 filed common written statement admitting the entire case of the plaintiff.
10. On basis of the pleadings, the trail Court framed following issues:
1. Whether the plaintiff proves that the suit schedule properties are the self acquired properties of deceased Nagayya?
2. Whether the defendant No.1 proves that the suit schedule 'C' property is his self acquired property?
3.. Whether the defendant No.1 proves that the suit is not properly valued and Court fee paid is insufficient?
4. Whether the plaintiff is entitled for the relief of particular as claimed?-6- RSA No. 100720 of 2018
5. What order of decree?
11. In order to substantiate, plaintiff examined himself as P.W.1 and examined two witnesses as P.W.2 and P.W.3 and got marked Ex.P.1 to Ex.P.19. Defendant examined himself as D.W.1 and examined one witness as D.W.2 and got marked Ex.D.1 and to Exs.P.40.
12. Trial Court on the basis of pleadings, oral and documentary evidence held that plaintiff has proved that the suit schedule properties are self acquired properties of deceased Sri.Nagayya and plaintiff is the legal heir of deceased Sri.Nagayya. It is also held that the defendant No.1 has failed to prove that deceased Smt.Chinnavva is not the legally wedded wife of the deceased Sri.Nagayya and as such, plaintiff and defendant Nos.2 and 3 are not entitled for share in the suit scheduled properties. Trial Court while answering issue No.5, the burden on defendant No.1 to prove that the suit schedule C property is self -7- RSA No. 100720 of 2018 acquired property of the defendant No.1, has held in negative, holding that the defendant No.1 has failed to prove that C schedule property is the self acquired property of defendant No.1 the said aspect and accordingly, decreed the suit of the plaintiff in part allotting 5/16th share in the suit schedule properties to the plaintiff and 5/16th share each to defendant No.1 and 2 in the suit schedule property. Aggrieved by the said judgment and decree of the trial Court, the defendant No.1 preferred appeal in R.A.No.34/2017 before the First Appellate Court.
13. The First Appellate Court framed following points for consideration:
1.Whether the impugned Judgment and Decree dated 21.02.2017 passed in O.S.No.224/2010 by the Trial Court calls for interference?
2. What Order?
14. The First Appellate Court on re-appreciation of material on record, confirmed the judgment and -8- RSA No. 100720 of 2018 decree of the Trial Court holding that plaintiff is entitled for share in the suit schedule property. Aggrieved by the concurrent findings of the Courts below, defendant No.1 is in appeal before this Court.
15. Heard the learned counsel for the appellant and learned counsel for respondents.
16. Learned counsel for appellant would vehemently contend that both the Court have not considered that item No.1C is self acquired property of the defendant No.1. In light of the Ex.D-2 to D-7 which are the property extracts and Ex.D-11 the receipt for having paid the taxes in respect of the suit schedule property. Placing reliance on said documents, the learned counsel would contend that the suit schedule item No.1C is self acquired property of the defendant No.1. It is also contended by the learned counsel that plaintiff having come to the Court burden is on the plaintiff to prove that the suit properties are the joint family properties of the plaintiff and -9- RSA No. 100720 of 2018 defendant. This has not been proved by the plaintiff without placing any material on record, the trial Court and First Appellate Court were not justified in awarding share to plaintiff and defendant Nos.2 and 3 to the extent of the share as enumerated by the Courts below in respect of item No.1C of the suit schedule property. Learned counsel for the appellant would contend that the substantial question of law would arises for consideration and appeal needs to be allowed.
17. Per contra, learned counsel for the respondents would contend that both the Court have held that the defendant No.1 has failed to prove that item No.1C is the self acquired property of the defendant No.1 and defendant No.1 has not placed a single piece of evidence more particularly any title deed to come to a conclusion that suit property was the self acquired property of defendant No.1 and the plaintiff has proved that the suit schedule property is
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RSA No. 100720 of 2018the joint family property of the plaintiff and the defendants and it is the burden to prove on the person who claims that a particular property is a self acquired property and the Courts below have rightly held that defendant No.1 has failed to prove that item No.1C is the self acquired property of the plaintiff and granting of share by the Courts below is justified.
18. The appeal is admitted on the following substantial questions of law:
"Whether the Courts below is justified in awarding shares contrary to the proposition of law as held by the Apex Court in the case of VINEETA SHARMA VS. RAKESH SHARMA AND OTHERS reported in ILR 2020 KAR 4370 and without taking into consideration that the plaintiffs and defendants are entitled for equal share in the suit schedule properties?"
19. The learned counsel for parties have been heard on this substantial question of law and judgment and decree of the Courts below are carefully
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RSA No. 100720 of 2018perused. Before adverting to answer the substantial question of law framed by this Court, it is necessary to consider the contentions raised by the defendant No.1 appellant herein regarding, that item No.1C is the self acquired property of the defendant No.1. Perusal of the material on record would evidence that other than stating and producing document at Exs.D-2 to D-7 which are the property extract the Sy.No.98, 39, 46, 47, 283, 296, 302, 313, 376, 39/25 pertaining to the suit schedule property nowhere establish the right created in favour of the defendant No.1 and Ex.D-11 is the receipt for having paid the tax receipt in respect of item No.1C by defendant No.1. The defendant No.1 mainly relied on Ex.D-11 the receipt to show that the defendant No.1 is the exclusive owner of the suit schedule property. The tax paid receipts or the entry of the name of the defendant No.1 would not be a title deed to show that the suit item No.1C is the exclusive property of the plaintiff. The defendant No.1 have not placed a single evidence to show as to how the
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RSA No. 100720 of 2018defendant No.1 has acquired item No.1C of the suit schedule property, having failed to show that the Courts below were justified in holding that the suit item No.1C of the suit schedule property is not the self acquired property of the defendant No.1. It is a presumption under the Hindu Law that the properties are the joint family properties until contrary is proved and burden is on the person who claims that a particular property is his self acquired property. Both the Courts have concurrently answered that defendant No.1 has failed to prove that the suit schedule item No.1C property is the self acquired property of the defendant No.1 and hence there arises no substantial question of law for consideration in the said aspect.
20. Now the question that needs to be considered in this present appeal is the substantial question of law that has been framed by this Court in light of the quantification of shares by both the Courts. It is not in dispute that the original propositus
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RSA No. 100720 of 2018Sri.Nagayya had married one Smt.Kallavva and on her death, married one Smt.Chinnavva, defendant No.1 is the son through his first wife Smt.Kallavva and defendant Nos.2 and 3 and the plaintiff are the children of Sri.Nagayya through his 2nd wife Smt. Chinnavva.
21. However, trial Court and the First Appellate Court has granted notional partition in respect of the suit schedule properties. In light of the judgment of the Hon'ble Apex Court in case of VINEETA SHARMA VS. RAKESH SHARMA AND OTHERS reported in ILR 2020 KAR 4370, the proposition is no more res- integra. In view of the fact that the daughters are also entitled for equal share in the suit schedule property. Accordingly, the substantial question of law framed is answered in favour of the parties holding that plaintiff and defendants are entitled to equal share in suit schedule properties. Accordingly, this Court pass the following :
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ORDER:
a) The regular second appeal is disposed of.
b) The impugned judgment and decree of the First Appellate Court dated 11.07.2018 passed in R.A.No.34/2017 on the file of the I Additional Senior Civil Judge and CJM., Dharwad, confirming the judgment and decree dated 21.02.2017 in O.S.No.224/2010 on the file of the II Additional Civil Judge and Judicial Magistrate First Class-II Court, Dharwad is hereby modified.
c) Plaintiff and defendant Nos.1 to 3 are entitled to equal share of 1/4th in the suit schedule property.
d) Accordingly, the judgment and decree of the Courts below stands modified.
(Sd/-) JUDGE AC List No.: 1 Sl No.: 2