Karnataka High Court
Parwatewwa W/O Ramappa Chippalakatti vs Ramappa S/O Venkappa Mirji on 17 January, 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.5263/2012 (PAR)
C/W
R.S.A.NO.5559/2012 (PAR)
IN RSA.NO.5263/2012 (PAR)
BETWEEN
1. SRI RAMAPPA S/O. VENKAPPA MIRJI,
AGE: 56 YEARS,OCC: AGRICULTURE,
R/O. KAMANAKATTI (YADWAD)
TQ: GOKAK, DIST: BELGAUM.
2. SRI GOVINDAPPA S/O. RAMAPPA MIRJI
AGE: 31 YEARS,
OCC: AGRICULTURE,
R/O. KAMANAKATTI (YADWAD)
TQ: GOKAK, DIST: BELGAUM-591136.
3. SMT.LAXAMAWWA W/O. PRAKASH KATARAKI
AGE: 31 YEARS, OCC: HOUSEHOLD WORK,
R/O. HULAKUND, TQ: RAMDURG,
DIST: BELGAUM-591136.
4. SMT.SUDHA W/O. RAMESH SONNADA
AGE: 30 YEARS,
OCC: HOUSEHOLD WORK
R/O.DEVERGENNUR,
TQ AND DIST: BIJAPUR-586 101.
5. SMT.SAVITHA
W/O BASAVARAJ BARAMANI
AGE: 26 YEARS,
OCC: HOUSEHOLD WORK,
R/O. BELAGALI, TQ: MUDHOL,
DIST: BAGALKOT-587313.
2
6. SMT.MAHADEVI W/O. NAGAPPA GODACHI
AGE: 25 YEARS, OCC: HOUSEHOLD WORK
R/O. SHIROL, TQ: MUDHOL,
DIST: BAGALKOT-587313.
7. SMT.GEETA W/O. KADAPPA GODACHI
AGE: 29 YEARS, OCC: HOUSEHOLD WORK,
R/O. SHIROL, TQ: MUDHOL,
DIST: BAGALKOT-587313
... APPELLANTS
(BY SRI ARUN L.NEELOPANT ADVT.)
AND
1. SMT.PARWATEWWA W/O. RAMAPPA CHIPPALKATTI
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O. KAMANAKATTI,
TQ: GOKAK, DIST: BELGAUM.
PIN CODE : 591 136.
2. SMT.GANGAWWA
W/O BHIMASHEPPA ADAVI @ SORAGANVI,
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O MALALI GARDEN LAND,
TQ: MUDHOL, DIST: BAGALKOT.
PIN CODE 587313.
3. SRI MUDUKAPPA A/S MUDAKAPPA BADAKAL
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O. KULAGOD, TQ: GOKAK,
DIST: BELGAUM.
PIN CODE 591 250.
4. SRI BALAPPA A/F. BASAPPA GURADDI
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O. KAMANAKATTI (YADWAD),
TQ: GOKAK, DIST: BELGAUM.
PIN CODE 591 136.
... RESPONDENTS
(BY SRI PRASHANT KADADEVAR, ADV. FOR RESPONDENT NO.1)
(NOTICE TO RESPONDENT NOS.2 & 4 : SERVED)
(NOTICE TO RESPONDENT NO.3 : DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CODE OF CIVIL PROCEDURE, 1908, PRAYING THIS COURT TO
SET ASIDE THE JUDGMENT AND DECREE PASSED IN
3
R.A.NO.63/2011 DATED 06.01.2012 BY THE LEARNED FAST
TRACK COURT AND ADHOC DISTRICT JUDGE, HUKKERI SITTING
AT GOKAK INSOFAR AS ALLOTMENT OF SHARES TO THE
PLAINTIFF AND DEFENDANT NO.4 AND SET ASIDE THE
IMPUGNED JUDGMENT AND DECREE PASSED IN O.S.NO.281/
2006 DATED 19.01.2011 PASSED BY THE LEANRED 1ST
ADDITIONAL SENIOR CIVIL JUDGE, GOKAK INSOFAR AS
ALLOTMENT OF SHARES TO THE PLAINTIFF AND DEFENDANT
NO.4.
IN R.S.A.NO.5559/2012 (PAR)
BETWEEN :
SMT.PARWATEWWA W/O RAMAPPA CHIPPALAKATTI,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O KAMANAKATTI(YADAWAD),
GOKAK, DIST: BELGAUM,
PIN CODE : 591 307.
... APPELLANT
(BY SRI PRASHANT KADADEVAR, ADV.)
AND
1. RAMAPPA RAMAPPA S/O VENKAPPA MIRJI
AGE: 55 YRS, OCC: AGRICULTURE,
R/O KAMANAKATTI (YADAWAD),
GOKAK, DIST: BELGAUM
PIN CODE : 591 307.
2. GOVINDAPPA S/O RAMAPPA MIRJI
AGE: 29 YRS, OCC: AGRICULTURE,
R/O KAMANAKATTI, (YADAWAD),
GOKAK, DIST: BELGAUM.
3. SMT.LAXMAWWA W/O PRAKASH KATARAKI,
AGE: 31 YRS, OCC: HOUSEHOLD WORK,
R/O HULAKUND, TQ: RAMADURGA,
DIST: BELGAUM, PIN CODE: 591 307.
4. SMT.SUDHA W/O RAMESH SONNADA
AGE: 28 YRS, OCC: HOUSEHOLD WORK,
R/O DEVARGENNUR, TQ. AND DIST. BIJAPUR,
PINCODE: 586 101.
5. GEETA W/O KADAPPA GODACHI
4
AGE: 26 YRS, OCC: HOUSEHOLD WORK,
R/O SHIROL, TQ. MUDHOL,
DIST: BAGALKOT, PIN CODE : 587 301.
6. SMT.SAVITA W/O BASAVARAJ BARIMANI
AGE: 26 YEARS, OCC: HOUSEHOLD WORK,
R/O BELAGAVI, TQ. MUDHOL,
DIST: BAGALKOT, PIN CODE : 587 318.
7. SMT.MAHADEVI W/O NAGAPPA GODACHI
AGE: 24 YEARS, OCC: HOUSEHOLD WORK,
R/O BUNDI, TQ. MUDHOL, DIST: BAGALKOT,
PIN CODE :587 313.
8. GANGAWWA
W/O BHIMASHEPPA ADAVI @ SORAGAVI
AGE: 66 YEARS, OCC: HOUSEHOLD WORK,
R/O MALALI GARDEN LAND,
TAL: MUDHOL, DIST: BAGALKOT,
PIN CODE : 587 313.
9. MUDAKAPPA A/F MUDAKAPPA BADAKAL,
AGE: 71 YEARS, OCC: AGRICULTURE ,
R/O KULAGOD, TQ. GOKAK,
DIST: BELGAUM, PIN CODE: 591 307.
10. BALAPPA A/F BASAPPA GURADDI
AGE: 69 YRS, OCC: AGRICULTURE,
R/O KAMANAKATTI (YADAWAD),
GOKAK, DIST: BELGAUM,
PIN CODE-591 307.
... RESPONDENTS
(BY SRI ARUN L NEELOPANT, ADV. FOR R.1 TO 7)
(NOTICE TO RESPONDENT NOS.8 TO 10 : SERVED)
THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CODE OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO
MODIFY THE JUDGEMENT & DECREE DATED 06.01.2012 PASSED
IN R.A.N0.63/2011 BY THE FAST TRACK COURT AND ADHOC
DISTRICT JUDGE, HUKKERI, SITTING AT GOKAK, AND CONFIRM
THE JUDGMENT AND DECREE DATED 19.01.2011 PASSED IN
O.S.NO.281/2006 BY THE I ADDITIONAL SENIOR CIVIL JUDGE,
GOKAK.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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: JUDGMENT :
These two captioned second appeals are filed by the plaintiffs as well as by defendant Nos.1 to 3.
2. RSA.No.5559/2012 is filed by the plaintiffs being aggrieved by the quantification done by the Appellate Court. The trial Court granted 1/3rd share each and thereby extended benefit of amended provisions under Section 6 of the Hindu Succession Act. However, the Appellate Court modified the preliminary decree and has awarded share notionally. Therefore, the plaintiffs have preferred the captioned second appeal in RSA.No.5559/2012.
3. Defendant Nos.1 to 3 have challenged the concurrent judgment and decree of the Courts below insofar as negativing their contention that the plaintiffs have relinquished their share in the suit schedule property by taking 25 tolas of gold and Rs.50,000/- cash.
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4. For the sake of convenience, the ranks of the parties are referred to as per their ranking before the Trial Court.
5. The relevant family tree of the parties is as follows:
Venkappa (Died in the year 1990) Rangavva (Wife-dead) Mudakappa Balappa Ramappa Gangawwa Parwatewwa (gone in (gone in (Def.1) (Def.4) (Pltff.) Adoption) adoption) Sharawwa (Wife) (Def.3) Govindappa (Def.2)
6. Plaintiff is the daughter of one Venkappa who had three sons and two daughters. Plaintiff contends that there are two elder brothers namely Mudukappa and Balappa went in adoption and therefore Venkappa's branch comprises of only defendant No.1 Ramappa and two sisters i.e., plaintiff and defendant No.4.
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7. The plaintiff filed a suit by specifically contending that the suit schedule properties are joint family ancestral properties and she is entitled for her legitimate share in the suit schedule property. The grievance of the plaintiff was that, though she repeatedly requested her elder brother defendant No.1 to effect partition by meets and bounds and to allot her legitimate share, defendant No.1 did not give any heed to the request made by the plaintiff and therefore the present suit came to be filed.
8. On receipt of summons, defendant Nos.1 to 4 contested the proceedings and stoutly denied the entire averments made in the plaint. Defendant Nos.1 to 4 specifically contended that the plaintiff has relinquished her rights in the suit schedule property by taking 25 totals of gold and Rs.50,000/- of cash.
9. The Trial Court having assessed the oral and documentary evidence on record answered Issue No.4 in the negative and while answering Issue No.4 8 in the negative it has held that Ex.D.31 is not a memorandum of partition but under the very said document parties have resolved to effect partition by meets and bounds and therefore would require registration and therefore is a compulsory registrable document. Therefore, the Trial Court having examined the admissibility of Ex.D.31 has come to conclusion that it is not at all admissible and therefore has negatived the theory of partition set up by defendant Nos.1 to 4. Having answered Issue No.4 in the negative, the Trial Court proceeded to grant equal share to the present plaintiff who happens to be the daughter of one Venkappa and therefore extended the benefit of amended provision of Section 6 of the Hindu Succession Act.
10. However, the First Appellate Court on re- appreciation of oral and documentary evidence though concurred with the findings of the trial Court insofar as Issue No.4 is concerned but however, while examining 9 the quantification done by the Trial Court, the Appellate Court was of the view that the application and operation of Section 6 of the Hindu Succession Act is prospective in nature and therefore the plaintiff being the daughter cannot be extended benefit of amended provisions of Section 6 of the Hindu Succession Act. On these set of reasonings the Appellate Court modified the quantification thereby allotting 2/9th share each to the present plaintiff and defendant No.4 who are the daughters of Venkappa. It is against this judgment and decree of the Appellate Court, the present plaintiff has preferred the appeal in RSA.No.5559/2012 and defendants have questioned the concurrent findings of the Courts below preferred appeal in RSA.No.5263/2012.
11. Heard learned counsel appearing for the appellants and learned counsel appearing for the respondents on substantial question of law, which is modified today and the same is culled out as follows: 10
"Whether the First Appellate Court was justified in awarding 2/9th share to the present appellant/plaintiff and 2/9th share to respondent No.8 notionally when admittedly the propositus Venkappa is survived by one son i.e., defendant No.1 and two daughters (plaintiff and defendant No.4) and therefore quantification is contrary to the amended provisions of Section 6 of the Hindu Succession Act and also judgment rendered by the Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and others reported in ILR 2020 KAR 4370?"
12. Both the counsel have extensively argued on the substantial question of law framed by this Court.
13. Learned counsel appearing for the plaintiff would vehemently argue and contend before this Court that there is a concurrent finding recorded by the Courts below insofar as Issue No.4 is concerned and once the plea of prior partition is held against defendant Nos.1 to 4, he would submit to this Court 11 that the principles laid down by the Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and others reported in ILR 2020 KAR 4370 would be squarely applicable to the present case on hand and therefore the quantification done by the Trial Court needs to be confirmed by setting aside the judgment and decree of the Appellate Court.
14. Per contra, learned counsel appearing for defendant Nos.1 to 3 would strenuously argue and contend before this Court that both the Courts have totally misread the documents relied on by the defendant more particularly Ex.D.31. She would submit to this Court that on plain reading of Ex.D.31 it can be gathered that it is memorandum of partition and not a partition deed as held by both the Courts below. Taking this Court to the contents of Ex.D.31, she would vehemently argue and contend before this Court that the findings of the Courts below on Ex.D.31 12 suffers from perversity and therefore would warrant interference by this Curt under Section 100 of CPC.
15. Heard learned counsel for the appellants and learned counsel appearing for the respondents. Perused the judgments rendered by the Courts below.
16. In order to non suit the plaintiff, defendant Nos.1 to 4 have set up a plea of prior partition by placing reliance on Ex.D.31. The recitals of Ex.D.31 are culled out by the Trial Court at paragraph No.18 of the judgment. On plain reading of Ex.D.31, even this court would find that the recitals in the said document do not indicate that the parties are reporting earlier partition. On reading the recitals which is culled by the Trial Court at paragraph No.18, this Court would also find that, under the documents the parties are intending to effect partition and as per the terms of the partition, the document indicates that the plaintiff and defendant No.4 have relinquished their share by receiving 25 tolas of gold on 25.02.1990. The 13 document is executed on 25.02.1990 and the document also indicates that 25 tolas of gold was given to the plaintiff and defendant No.4 on 24.02.1990. Therefore, the present document cannot be referred as memorandum of partition, but in-fact it is a partition deed. Therefore, it is a trite law that if a partition reduced into writing, then the same requires registration, unless the document reveals that it is a document reporting prior partition. Therefore, the concurrent findings of the Courts below to the effect that Ex.D.31 is not a memorandum of partition, but it is a partition deed does not suffer from any illegality or infirmity. Therefore, the second appeal filed by the defendant Nos.1 to 3 does not give rise to any substantial question of law. The appeal is devoid of merits and the same stands dismissed.
17. Insofar as quantification is concerned, issue is no more res-integra. The Apex Court in the case of Vineeta Sharma (supra) has held that the 14 application of Section 6 of the Hindu Succession Act is retrospective and therefore the provisions of Section 6 of the Hindu Succession Act and its benefit has to be conferred on daughters who were born before the amendment was brought into effect. If that is so, the plaintiff and defendant No.4 assume the status of coparcener by legal fiction and therefore are entitled for equal share on par with defendant Nos.1 brother.
18. Therefore the judgment and decree of the Appellate Court in awarding share notionally suffers from perversity and the same is contrary to the principles laid down by the Apex Court in Vineeta Sharma's case (supra).
19. In that view of the matter, the substantial question of law which is modified and reframed by this court is liable to be answered in the affirmative and the same is answered accordingly. Hence I proceed to pass the following :
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ORDER i. The second appeal filed by the plaintiff in RSA.No.5559/2012 is hereby allowed.
ii. Consequently the second appeal filed by defendant Nos.1 to 3 in RSA.No.5263/ 2012 is hereby dismissed.
iii. The judgment and decree dated 06.01.2012 passed in R.A.No.63/2011 by the Fast Track Court and ADHOC District Judge, Hukkeri sitting at Gokak is hereby set aside.
iv. The judgment and decree dated 19.01.2011 passed in O.S.No.281/2006 by the I Additional Senior Civil Judge, Gokak is hereby confirmed.
v. Draw decree accordingly.
Sd/-
JUDGE EM