Karnataka High Court
Shankrappa S/O. Chanaveerappa Akki vs Iravva W/O. Gadigeppa Ecchangi on 8 July, 2021
Author: R.Devdas
Bench: R.Devdas
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8TH DAY OF JULY, 2021
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
R.F.A.No.4228/2013
c/w
R.F.A.No.100367/2018 (PAR. & SEP. POSSN.)
IN R.F.A.No.4228/2013
BETWEEN:
1. SMT.IRAVVA W/O. GADIGEPPA ECHCHANGI,
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O. KENGAPUR, TQ:SHIGGAON,
DIST: HAVERI-584501.
2. SMT.GIRIJAVVA W/O. MALLIKARJUNAPPA PYATI,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O. KALASA, TQ: KUNDAGOL,
DIST: DHARWAD-581113.
3. SMT.CHANNABASAVVA W/O. DEVENDRAPPA KANAVI,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O. KOLIWAD, TQ: HUBLI,
DIST: DHARWAD-581113. ..APPELLANTS
(BY SRI.K.L.PATIL AND
SMT.PADMAJA TADAPATRI, ADV.)
2
AND:
1. SRI SHANKRAPPA S/O. CHANNAVEERAPPA AKKI,
AGE: 52 YEARS, OCC: AGRICULTURE
R/O. YARAGUPPI, TQ: KUNDAGOL
DIST: DHARWAD-581113.
2. CHANNAPPA S/O. CHANNAVEERAPPA AKKI,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O. YARAGUPPI, TQ: KUNDAGOL,
DIST: DHARWAD.
3. MALLIKARJUN S/O. JAMPANNA BENTUR,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O. YARAGUPPI, TQ: KUNDAGOL,
DIST: DHARWAD. ...RESPONDENTS
(BY SRI PRAKASH UDIKERI, ADV. FOR R1,
RESPONDENT No.2 SERVED,
SRI DINESH M.KULKARNI, ADV. FOR R3)
THIS APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF
CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED
25.10.2013 PASSED IN O.S.No.112/2009 ON THE FILE OF THE
FIRST ADDL. SENIOR CIVIL JUDGE, HUBLI, DECREEING THE SUIT
FILED FOR PARTITION AND SEPARATE POSSESSION.
IN R.F.A.No.100367/2018
BETWEEN
SHANKRAPPA S/O. CHANAVEERAPPA AKKI,
AGE:54 YEARS, OCC:AGRICULTURE,
R/O YARAGUPPI, TQ:KUNDAGOL,
DIST:DHARWAD. ... APPELLANT
(BY SRI PRAKASH S UDIKERI, ADV.)
AND
1. SMT.IRAVVA W/O. GADIGEPPA ECCHANGI,
AGE:61 YEARS, OCC:AGRICULTURE,
R/O. KENGAPUR, TQ:SHIGGAON,
DIST:HAVERI.
3
2. GIRIJAVVA W/O. MALLIKARJUNAPPA PYATI,
AGE:58 YEARS, OCC:AGRICULTURE,
R./O KALASA, TQ:KUNDAGOL,
DIST:DHARWAD.
3. CHANNABASAVVA W/O. DEVENDRAPPA KANAVI,
AGE:50 YEARS, OCC:AGRICULTURE,
R/O. KOLIWAD, TQ:HUBLI,
DIST:DHARWAD.
4. CHANNAPPA S/O. CHANAVEERAPPA AKKI,
AGE:46 YEARS, OCC:AGRICULTURE,
R/O. YARAGUPPI, TQ:KUNDAGOL,
DIST:DHARWAD.
5. MALLIKARJUN S/O. JAMPANNA BENTUR
AGE:44 YEARS, OCC:AGRICULTURE,
R/O. YARAGUPPI, TQ:KUNDAGOL,
DIST:DHARWAD. ... RESPONDENTS
(BY SRI K.L.PATIL AND
SMT.PADMAJA TADAPATRI, ADV. FOR R1 TO R3,
SRI DINESH M.KULKARNI, ADV. FOR R5)
THIS RFA FILED UNDER SEC. 96 READ WITH ORDER 41 RULE
1 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD.25.10.2013
PASSED IN O.S.NO.112/2009 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE, HUBLI, PARTLY DECREEING THE SUIT FILED
FOR PARTITION AND SEPARATE PRONOTE, POSSESSION AND
INJUNCTION.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS DAY,
R.DEVDAS J., DELIVERED THE FOLLOWING:
JUDGMENT
R.DEVDAS J., (ORAL):
These two Regular First Appeals have been filed by the plaintiffs and defendant No.1 assailing the portion of the judgment and decree in O.S.No.112/2009. 4
2. For the sake of convenience, the parties shall be addressed as per their rank before the trial Court.
3. Plaintiffs are the daughters and defendants 1 and 2 are the sons of late Shri Chennaveerappa Akki. Defendant No.3 purchased Item No.4 of the suit schedule properties from defendant No.1, under a sale deed dated 15.06.2009. The suit is filed by the plaintiffs/daughters claiming partition and separate possession of their 1/5th share each in the suit schedule properties and for a declaration that the sale deed dated 15.06.2009 in respect of Item No.4 of the suit schedule properties, is not binding on the plaintiffs, further a decree of permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit schedule properties is also prayed for.
4. The relationship between the plaintiffs and defendants 1 and 2 is admitted. Defendant No.1 filed written statement claiming a prior partition in the year 1989 and that Item No.4 of the suit schedule properties fell into his share and therefore, there is no illegality in defendant No.1 disposing of the property in favour of defendant No.3. The 5 contention of defendant No.1 that there was a prior partition has been negatived by the trial Court. Consequently, the alternative plea of defendant No.1 disposing of Item No.4 of the suit schedule properties for family necessities was also negatived. The trial Court held that the sale was not for legal or family necessities of the joint Hindu family. However, while decreeing the suit, the trial Court directed that Item No.4 of the suit schedule properties which was disposed of in favour of defendant No.3 should be allotted to the share of defendant No.1 so that the interest of defendant No.3 is protected. Consequently, the entitlement of defendant No.1 in the other items of the suit schedule properties was required to be adjusted accordingly.
5. Insofar as plaintiff No.1 is concerned, the trial Court has come to a conclusion that she being a daughter born prior to 1956, in terms of the judgment in PRAKASH VS. PHULAVATI reported in (2016) 2 SCC 36, a notional partition was required to be applied and it was held that plaintiff No.1 is entitled for 1/25th share and the plaintiffs 2 and 3 are entitled for 6/25th share each in Item Nos.1 to 9 of 6 the suit schedule properties. It is necessary to notice that Item No.10 of the suit schedule properties is a tractor and trailer and the suit regarding Item No.10 has been dismissed, on the ground that it was purchased by defendant No.1 out of his own funds.
6. At the outset, the learned counsel for the appellants/plaintiffs submits that in view of the latest decision of the Hon'ble Supreme Court in the case of VINEETA SHARMA VS. RAKESH SHARMA AND OTHERS reported in (2020) 9 SCC 1, the decision in PRAKASH VS. PHULAVATI also fell for consideration and the Hon'ble Supreme Court has held that the daughters born before or after the amendment are entitled in the same manner as a son with same rights and liabilities, under Section 6 of the Hindu Succession Act, 1956. Therefore, having regard to the latest position of law as enunciated in Vineeta Sharma's case, plaintiff No.1 is also entitled for an equal share along with the other plaintiffs.
7. As regards Item No.4 of the suit schedule properties, it is once again contended at the hands of the plaintiffs/appellants that the ancestors' tombs are present in 7 Item No.4 of the suit schedule properties and therefore, they have a sentimental attachment to the said property and therefore, the decision of the trial Court in allotting Item No.4 of the suit schedule properties to defendant No.1 should be reconsidered.
8. In the connected appeal filed by defendant No.1, the contention of prior partition is once again reiterated.
9. Having heard the learned counsel counsels and on perusing the memoranda of appeals and the trail Court records, we find that insofar as plaintiff No.1 is concerned, in view of the latest position of law declared by the Hon'ble Supreme Court in the case of VINEETA SHARMA, plaintiff No.1 will be entitled for an equal share along with the other plaintiffs and defendants 1 and 2, in terms of Section 6 of the Hindu Succession Act, 1956. To that extent, the decision of the trial Court is required to be modified.
10. Insofar as the other contention of the appellants that since there are tombs of the ancestors on Item No.4 of the suit schedule properties, the plaintiffs are entitled for a 8 share, we should notice that this issue was considered by the trial Court and it is found that the plaintiffs have not produced any evidence to substantiate their contention that the ancestors' tombs are present on Item No.4 of the suit schedule properties. On this ground, the contention of the plaintiffs was rejected by the trial Court. The plaintiffs have not filed any application for production of additional documents to substantiate their contention before this Court. Therefore, there being no new set of facts that are brought before the Court or any evidence which would require reconsideration of the issue, we do not feel that the issue requires reconsideration. Even otherwise, we have seen that if the lands are acquired by the State or the State agencies, the existence of ancestral tombs on the lands would not have any bearing in the matters of land acquisition and this Court has negatived such contentions raised at the hands of land owners. Moreover, the land was purchased by defendant No.3 in the year 2009 and 12 years have gone by and defendant No.3 has been beneficially enjoying the property. For the reasons stated above, the contention of the appellants in this regard is required to be rejected.
9
11. Similarly, defendant No.1 has also failed to substantiate his contention that there was a prior partition. Therefore, the appeal preferred by defendant No.1 is also liable to be rejected.
12. Consequently, the appeal in R.F.A.No.4228/2013 filed by the plaintiffs is partly allowed. Consequently, plaintiffs and defendants 1 and 2 are entitled for 1/5th share each in item Nos.1 to 9 of the suit schedule properties. The judgment and decree of the trial Court as regards Item No.4 of the suit schedule properties shall remain intact.
A preliminary decree for partition shall be drawn accordingly.
The connected appeal in R.F.A.No.100367/2018 is accordingly dismissed.
(Sd/-) JUDGE (Sd/-) JUDGE Jm/-