Karnataka High Court
Nagshetty S/O Rameshetty Biradar vs Laximi Bai W/O Late Sanjeev Kumar on 5 January, 2024
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NC: 2024:KHC-K:195
RSA No. 7438 of 2011
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 7438 OF 2011 (PAR)
BETWEEN:
1. NAGSHETTY S/O RAMESHETTY BIRADAR,
AGE: 67 YEARS, OCC: AGRICULTURE & BUSINESS,
R/O BEERI (K), TQ. BHALKI,
DIST. BIDAR-585401.
2. MAHADEVI W/O NAGSHETTY BIRADAR,
AGE: 60 YEARS, OCC: HOUSEHOLD,
R/O BEERI (K), TQ. BHJALKI,
DIST. BIDAR-585401.
3. NIRMALA W/O BABURAO,
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O KUNTESIRSI, TQ. BHALKI,
Digitally signed
by SACHIN DIST. BIDAR-585401.
Location: HIGH
COURT OF 4 RATNAMMA W/O DAYANAND,
KARNATAKA
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O DONGAPUR, TQ. BHALKI,
DIST. BIDAR-585401.
5. SANGEETA W/O UMAKANT,
AGE: 36 YEARS, OCC: AGRICULTURE &
HOUSEHOLD,
R/O VILASPUR,TQ. BHALKI,
DIST. BIDAR-585401.
6. BHAGYASHREE W/O SHARNU,
AGE: 32 YEARS, OCC: AGRICULTURE HOUSEHOLD,
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RSA No. 7438 of 2011
R/O TADOLA, TQ. B.KALYAN,
DIST. BIDAR-585401.
...APPELLANTS
(BY SRI. SHIVANAND PATIL, ADVOCATE)
AND:
1. LAXIMI BAI W/O LATE SANJEEV KUMAR,
AGE: 25 YEARS, OCC: NIL,
R/O BEERI (K), TQ. BHALKI, DIST. BIDAR.
NOW R/O KOTGYAL, TQ. BHALKI,
DIST. BIDAR-585401.
2. RADHAKRISHNA S/O MANIKRAO,
SINCE DECEASED BY HIS LRS.
2(A) GODAVARI W/O LATE RADHA KRISHANNA,
AGE: 30 YEARS, OCC: HOUSEHOLD,
2(B) RAMKRISHANNA S/O LATE RADHA KRISHANNA,
AGE: 9 YEARS, OCC. STUDENT,
2(C) TELANIRANI KRISHANNA
D/O LATE RADHA KRISHANNA,
AGE: MINOR,
2(D) SHIVURANI KRISHANNA
D/O LATE RADHA KRISHANNA,
AGE: MINOR,
RESPONDENT NO.2(B) TO 2(D) ARE MINOR
U/G NEXT FRIEND THEIR NATURAL
MOTHER GODAVARI
W/O LATE RADHA KRISHANNA,
ALL ARE R/O BEERI (K), TQ. BHALKI,
DIST. BIDAR.
3. MANIKRAO S/O DHONDIBA,
AGE: MAJOR, OCC: AGRICULTURE,
R/O BEERI (K), BHALKI,
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RSA No. 7438 of 2011
DIST. BIDAR - 585 401.
4. GODHAVARI W/O VITHALRAO BIRADAR,
AGE: 49 YEARS, OCC: HOUSEHOLD,
R/O BEER (K), BHALKI,
DIST. BIDAR - 585 401.
...RESPONDENTS
(NOTICE TO R1, R2(A), R3 AND R4 - SERVED;
R2(B) TO (D) ARE MINORS U/G OF R2(A))
THIS RSA IS FILED U/S. 100 OF CPC PRAYING TO ALLOW
THE APPEAL BY SETTING ASIDE THE IMPUGNED JUDGMENT
AND DECREE DATED 16.07.2011 IN R.A.NO.101/2010 AND
CONFIRM THE JUDGMENT AND DECREE DATED 07.09.2009 IN
O.S.NO.17/2009.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, Appellants/defendant Nos.1, 2 and 6 to 9 are assailing the judgment and decree dated 16.07.2011 in R.A.No.101/2009 on the file of Fast Track-II, Bidar (Camp at Bhalki), setting aside the judgment and decree dated 07.09.2009 in O.S.No.17/2009 on the file of Senior Civil Judge at Bhalki, decreeing the suit of the plaintiff.
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NC: 2024:KHC-K:195 RSA No. 7438 of 2011
2. For the sake of convenience, the parties in the appeal shall be referred to in terms of their status and ranking before the Trial Court.
3. It is the case of the plaintiff that plaintiff is the daughter-in-law of defendant Nos.1 and 2, constitute a joint family. It is stated that the husband of the plaintiff- Sanjivkumar S/o defendant Nos.1 and 2 died on 08.03.2007 and after his demise, the plaintiff is entitled for share in the suit schedule properties. Therefore, the plaintiff filed O.S.No.17/2009 on the file of Senior Civil Judge, Bhalki seeking relief of partition and separate possession in respect of the schedule properties.
4. After service of notice, the defendants entered appearance and filed detailed written statement and sought for dismissal of the suit.
5. The trial Court on the basis of the pleadings on record, framed the issues for its consideration. -5-
NC: 2024:KHC-K:195 RSA No. 7438 of 2011
6. In order to establish their case, plaintiff was examined as PW.1 and got marked seven documents as Ex.P.1 to Ex.P.7. Defendants have examined three witnesses as DW.1 to DW.3 and got marked one document as Ex.D1. The trial Court after considering the material on record by its judgment and decree dated 07.09.2009 decreed the suit of the plaintiff holding that the plaintiff is entitled of 1/12th share in all plaint 'A' and 'B' schedule properties excluding the alienated properties.
7. Being aggrieved by the same, the plaintiff has preferred appeal in R.A.No.101/2009 before the First Appellate Court and the appeal was resisted by the defendants. The First Appellate Court by judgment and decree dated 16.07.2011, allowed the appeal holding that the plaintiff is entitled for 1/6th share in the suit schedule properties.
8. Feeling aggrieved by the same the appellants herein have preferred the present second regular appeal. -6-
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9. I have heard learned counsel Sri Shivanand Patil appearing for the appellants. Respondents are served, un-represented.
10. Sri Shivanand Patil, learned counsel appearing for the appellants invited the attention of the Court to the finding recorded by the trial Court, so also the genealogical tree to establish the relationship between the parties and argued that as the husband of the plaintiff is pre-deceased the defendant No.2 and therefore the trial Court was justified in allotting 1/12th share in the suit schedule properties, however same has been erroneously interfered with by the First Appellate Court and accordingly sought for interference of this Court.
11. Respondents are served and remained absent.
12. This Court by order dated 28.11.2022 formulated the following substantial questions of law :-
1. Whether the findings of the Appellate Court that the alienations made by defendant No.1, who is the father-in-law of the plaintiff in favour of the -7- NC: 2024:KHC-K:195 RSA No. 7438 of 2011 defendant No.3 to 5 will not bind the plaintiff, is perverse and palpably erroneous and contrary to the clinching rebuttal evidence on record, which indicates that all these alienations were made by defendant No.1, who is kartha of the family much prior to the plaintiff's marriage with Sanjivkumar and the plaintiff's husband Sanjivkumar has signed as witness to the one of the sale deed?
2. Whether the Appellate Court erred in not examining that the properties which were sold much prior to the plaintiff's marriage are not available for partition and therefore, the judgment and decree of the Appellate Court in granting share even in respect of the properties alienated is perverse?
3. Whether the Appellate Court erred in declining a share to defendant No.2, who is a mother, being the class-I heir is also entitled for share in respect of her deceased son Sanjivkumar and therefore, the present plaintiff being a widow will not exclusively succeed to her husband's share in terms of Section 8 of the Hindu Succession Act?
13. Having heard the learned counsel appearing for the appellants and on careful examination of the original records, it is not in dispute with regard to the relationship -8- NC: 2024:KHC-K:195 RSA No. 7438 of 2011 between the parties. The genealogical tree of the parties reads as under :-
Ramashetty Nagshetty Mahadevi (wife) Nirmala Ratanamma Sangeeta Bhayshree Sanjivkumar (Husband of plaintiff)
14. It is not in dispute that the schedule properties are the ancestral properties of the husband of the plaintiff and defendant Nos.1 and 2. Defendant Nos.1 and 2 had five children, and the son of defendant Nos.1 and 2 - Sanjivkumar (husband of the plaintiff) died on 08.03.2007, leaving behind the plaintiff and the defendant Nos.1 and 2.
15. On careful examination of the finding recorded by the trial Court, it is not in dispute with regard to the fact that the defendant No.2 is the Class-I heir as per schedule to Hindu Succession Act, 1956 and same has to be read along with Section 8 of the Hindu Succession Act. -9-
NC: 2024:KHC-K:195 RSA No. 7438 of 2011 Husband of the plaintiff died leaving behind the plaintiff and defendant No.2 to succeed to the estate as the defendant No.2 is the Class--I heir under the schedule.
16. In that view of the matter, the judgment and decree passed by the trial Court is just and proper as the plaintiff is entitled for 1/12th share in all plaint 'A' and 'B' schedule properties excluding the properties which are already sold in favour of defendant Nos.3 to 5.
17. It is needless to say that, the alienation of the properties that has been made are much before the marriage of the son of defendant No.1 with the plaintiff. Having arrived at such a conclusion that the trial Court has rightly allotted 1/12th share in the suit properties, the finding recorded by the First Appellate Court is incorrect and the First Appellate Court has not re-appreciated the material on record in the right perspective by looking into the provisions contained under the Hindu Succession Act. The finding recorded by the First Appellate Court at paragraph 21 of the impugned judgment is incorrect to
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NC: 2024:KHC-K:195 RSA No. 7438 of 2011 devolve the suit schedule properties in favour of the plaintiff and defendant Nos.1, 2 and 6.
18. In that view of the matter, the substantial question of law framed above favours the defendants and the First Appellate Court without re-appreciating the material on record in the light of the observation made by the Hon'ble Apex Court in the case of Santosh Hazari v. Purushottam Tiwari (Dead) By LRs.1 and looking into the scope and ambit of Order XLI Rule 31 of Code of Civil Procedure, passed the impugned judgment and decree.
19. In the result, the appellants have made out a case for interfere with the judgment and decree passed by the First Appellate Court and the First Appellate Court on mistaken of fact and law, has interfered with the well reasoned impugned judgment and decree passed by the trial Court.
20. In the result, I pass the following : 1
(2001) 3 SCC 179
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NC: 2024:KHC-K:195 RSA No. 7438 of 2011 ORDER
i) Appeal is allowed.
ii) Judgment and decree dated 16.07.2011 in
R.A.No.101/2009 on the file of Fast
Track-II, Bidar (Camp at Bhalki) is set- aside.
(iii) Confirmed the judgment and decree dated 07.09.2009 in O.S.No.17/2009 on the file of the Civil Judge (Sr.Dn.) at Bhalki, decreeing the suit of the plaintiff holding that the plaintiff is entitled for 1/12th share in plaint 'A' and 'B' schedule properties excluding the properties which are already alienated in favour of defendants no.3 to 5.
Sd/-
JUDGE SN List No.: 1 Sl No.: 38