Karnataka High Court
Basavanappa S/O Sidramappa Patil And ... vs Sridevi D/O Sidramappa And Ors on 22 September, 2022
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22nd DAY OF SEPTEMBER 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
RSA NO 200190 OF 2021 (PAR)
BETWEEN
1 . BASAVANAPPA
S/O SIDRAMAPPA PATIL
AGE: 65 YEARS,
OCC:RETIRED VILLAGE ACCOUNTANT,
R/O. GANAJALKHED,
TQ. AND DIST: KALABURAGI.
2 . MALLIKARJUN
S/O BASAVANAPPA
AGE: 33 YEARS,
OCC: PRIVATE SERVICE,
R/O. GANAJALKHED,
TQ. AND DIST: KALABURAGI.
3 . NAGARAJ
S/O BASAVANAPPA
AGE: 28 YEARS,
OCC: PRIVATE SERVICE,
R/O. GANAJALKHED,
TQ. AND DIST: KALABURAGI.
...APPELLANTS
(BY SRI. MAHADEV S. PATIL, ADVOCATE)
AND
1 . SRIDEVI
D/O SIDRAMAPPA
2
(W/O SIDDANNA SAHUKAR),
AGE: 70 YEARS, OCC: AGRICULTURE AND
HOUSEHOLD, R/O. HAYYAL VILLAGE,
TQ: SHAHAPUR, DIST: YADGIRI-585 223.
NEELAMMA
D/O SIDRAMMAPPA
(W/O MALLIKARJUN POLICE PATIL)
SINCE DECEASED BY LRS,
2. MALLIKARJUN,
S/O.YESHWANTHRAYA,
AGE: 75 YEARS,
OCC: AGRICULTURE,
R/O C/O MAILAPUR,
JEWELERS SARAF BAZAR
KALABURAGI-585 101.
3. SHARNABASAPPA
S/O MALLIKARJUN POLICE PATIL
AGE: 46 YEARS,
OCC: PRIVATE SERVICE,
R/O C/O MAILAPUR,
JEWELERS SARAF BAZAR
KALABURAGI-585 101.
4. NAGAMMA
W/O GANGANNA POLICE PATIL
AGE: 53 YEARS, OCC: HOUSEHOLD,
R/O. KUDMUD, POST: AMBALAGA,
TQ: ALAND, DIST: KALABURAGI-585 101.
5. RAJAMMA
W/O NAGANNA KORI (RAVOOR)
AGE: 39 YEARS, OCC: HOUSEHOLD,
R/O. KUDMUD, POST: AMBALAGA,
TQ: ALAND, DIST: KALABURAGI-585 101.
6. SAILAMMA
W/O NAJALINGAPPA KORALLI
AGE: 37 YEARS, OCC: HOUSEHOLD,
R/O. KADAGANCHI, TQ: ALAND,
DIST. KALABURAGI-585 101.
3
7. JAYAMMA
W/O CHANDRAKANTH HAGARAGI
AGE: 33 YEARS, OCC: HOUSEHOLD,
R/O KADAGANCHI, R/O.HAGARAGA
DIST. KALABURAGI-585 101.
8. GOURAMMA
W/O CHANNAVEERAPPA CHINCHOLI
AGE: 31 YEARS, OCC: HOUSEHOLD,
R/O. NEAR BASAWANAPPA S
MUNNLI HOUSE, GAZIPUR,
KALABURAGI-585 101.
9. SIDRAMAPPA
S/O PARMESHWAR PATIL
OCC: NIL, R/O. GANAJALKHED,
TQ. AND DIST: KALABURAGI-585 101.
...RESPONDENTS
THIS RSA IS FILED U/S. 100 OF THE CPC, AGAINST THE
JUDGMENT AND DECREE DATED 10.12.2020 PASSED IN R.A.
NO.116/2018 ON THE FILE OF THE III ADDL. DIST. AND
SESSIONS JUDGE AT KALABURAGI, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DTD
02.08.2018 PASSED IN O.S.NO.103/2016 ON THE FILE OF THE I
ADDL. SENIOR CIVIL JUDGE, KALABURAGI.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
For the sake of convenience, the parties will be referred to as per their rankings before the Trial Court. 2. Present appeal is by Defendant Nos.2, 3 and 4 aggrieved by the Judgment and Order dated 10.12.2020 4 passed in R.A.No.116/2018 on the file of the III Additional District and Sessions Judge at Kalaburagi (hereinafter referred to as the 'First Appellate Court'), in and by which, while dismissing the appeal filed by the appellants herein, the First Appellate Court confirmed the Judgment and Decree dated 02.08.2018 passed in O.S.No.103/2016 on the file of I Additional Senior Civil Judge at Kalaburagi (hereinafter referred to as 'the Trial Court'), decreeing the suit of the plaintiffs holding them to be entitled to 1/4 th share in the suit schedule properties. The plaintiffs, namely, Smt.Sridevi and Neelmma, daughters of Defendant No.1-Sidramappa filed the suit for partition against father and brother Basavannappa-Defendant No.2 and his two sons, viz., Mallikarjun and Nagaraj - defendant Nos.3 and 4 respectively, who are the appellants before this Court seeking partition of suit schedule properties consisting of land in Survey No.128/4 measuring 18 acres 4 guntas situated at Syed Chincholi; land in Survey No.59 measuring 01 acre 01 gunta; land in Survey No.44 measuring 01 acre 04 guntas and House 5 No.6/5 consisting of nine rooms and open space situated at Ganajalkhed village, Kumasi Gram Panchayath, on the premise that the suit properties are the joint family ancestral properties and the plaintiffs and defendants constituted the members of joint family properties. The plaintiffs/Defendant No.1 1 are entitled for 1/4th equal share in the suit schedule properties whereas Defendants 3 and 4 together would be entitled for 1/4th share. That the plaintiffs requested the defendant, to partition the property which was declined. The plaintiffs thereafter obtained the copies of the revenue records pertaining to properties and learnt that name of Defendant Nos.2, 3 and 4 have been entered into in the revenue records of 08.11.2003 and based on the said entry, defendants are attempting to alienate the property. It is further alleged that Defendant No.2 at the relevant time was working as a Village Accountant and by misusing his office, got his name and name of his two sons entered in the revenue records without knowledge of the plaintiffs. Hence, the suit. 6
3. On service of summons, defendants appeared. Defendant No.1 filed written statement admitting the plaint averments and also sought for 1/4th share in the suit properties. Defendant No.2 in his written statement contended that there was a family partition long ago and in that, house situated at Ganajalkhed village was allotted to Plaintiff No.2 and also gold and cash were given to the plaintiffs during the year 2003-04. Suit lands and house property were partitioned between the defendants and the suit lands were allotted to Defendant No.2 while Defendant No.1 retained the house property. As such, there is no joint family status existing between the parties. The plaintiffs are residing in their respective matrimonial houses and they have no concern or entitlement to the suit properties. The name of Defendant Nos.2 to 4 have been entered into in the revenue records based on the partition entered into amongst them. As such, sought for dismissal of the suit.
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4. The Trial Court framed the following issues and recorded evidence:
1. Whether the plaintiffs are entitled for reliefs as claimed?
2. What order or Decree?
Additional Issues framed on 22.08.2017.
1. Whether the plaintiffs prove that they suit properties are the ancestral joint family properties?
2. Whether the plaintiffs prove that they are having share in the suit properties?
3. Whether the defendant No.2 proves that the prior partition as pleaded in his written statement?
5. The plaintiff No.1 examined herself as P.W.1 and 41 documents have been exhibited as Ex.P1 to Ex.P34. On behalf of the defendants, Defendant No.2 has been examined as DW.1 and exhibited 8 documents marked as Ex.D1 to Ex.D8.
6. The Trial Court while answering Issue Nos.1 to 3 in the affirmative and Issue No.3 in the negative, decreed the suit holding the plaintiffs, Defendants No.1 and 2 are entitled for 1/4th share each in the suit schedule properties. Being aggrieved by the same, Defendants No.2 8 to 3 have filed regular appeal in R.A.No.116/2018 on the file of the First Appellate Court for consideration of the grounds urged.
7. The First Appellate Court framed the following points for its consideration:
1. Whether the plaintiffs have proved the suit properties are ancestral and joint family properties and they are entitle share as claimed by them?
2. Whether the defendants have proved prior partition between the parties.
3. Whether the Judgment and decree passed by the trial court is required to be interference by this court?
4. What Order?
8. While answering Point No.1 in the affirmative and Point Nos.2 and 3 in the negative, the First Appellate Court dismissed the appeal confirming the Judgment and Decree of the Trial Court. Being aggrieved by the same, Defendants No.2 to 3 are before this Court.
9. Sri Mahadev S.Patil, learned counsel for the appellants reiterating the grounds urged in the 9 memorandum of appeal submitted that the Trial Court and the First Appellate Court failed to appreciate the prior partition as evidenced by the revenue records produced by the defendants in which the partition that has taken place in the year 2003-04 has been reflected. He further submits that daughters were married 40 years ago and as such, they did not have right over the property. That in the partition which was done earlier, Plaintiff No.2 was given a house apart from cash and gold. Thus, he submits that the defendant had proved with sufficient material the oral partition that had taken place earlier. He relies upon the Judgment of co-ordinate Bench of this Court passed in R.S.A.No.7245/2013 dated 13.09.2017 to emphasize the point that the First Appellate Court ought to have given its own reasoning instead of merely confirming the reasons given by the Trial Court.
10. He also relied upon the judgment of the Apex Court passed in Civil Appeal No.6744/2013 in the case of Manjula & Ors. vs. Shyamsundar & Ors. to submit that 10 the first appeal is a valuable right and all facts and law are to be decided by the First Appellate Court by re- appreciating the factual aspects of the matter. Thus, he submits that the First Appellate Court not having appreciated the facts and the material evidence produced by the defendants and hence, the impugned judgment and decree passed by the First Appellate Court is illegal giving raise to substantial question of law.
11. Heard the learned counsel for the appellants and perused the records.
12. There is no dispute of the fact that the plaintiffs and defendant No.2 are the children of defendant No.1. There is also no dispute of the fact that the suit schedule properties are the joint family properties. In a suit for partition, the initial burden is on the plaintiffs to prove that the family is a joint family and the suit schedule properties are the joint family properties. In view of the aforesaid admitted position, the plaintiffs have established and proved and discharged their initial burden. Defendant 11 No.1, who is the father of the plaintiffs and defendant No.2 in his written statement has admitted the plaint averments and has also consented for passing of the decree allotting 1/4th share to himself. As against the aforesaid admitted factual position, defendant Nos.2 to 4 in their written statement have set up a theory of prior partition. It is contended that plaintiff No.2 was given a house property and plaintiff Nos.1 and 2 were also given gold and cash. It is further contended that defendant No.1 was allotted a shop. To support the said submission, defendant Nos.2 and 3 have relied upon the record of rights for the year 2003 onwards. Since defendant Nos.2 to 5 have set up plea of oral partition, it is incumbent upon them to have produced cogent acceptable material evidence in support of their contention of oral partition. Even according to defendant Nos.2 to 4, it was oral partition and except the mutation entries, have produced nothing.
13. The learned counsel for the appellants/defendants at the time of argument, pointed out that the mutation entries refers to the partition and 12 perusal of the said document, it shows Vatani Patra, which means partition deed. Since the said document even as relied upon by the defendants refers to the partition deed, no such document has been furnished by the defendants before the Trial Court or the First Appellate Court. Be that as it may. The Trial Court taking into consideration all the factual aspects of the matter including the documents at Exs.D1 to D8 has come to the conclusion that the defendants have not produced any material to show the partition between the plaintiffs and the defendants. The Trial Court has also taken note of the fact that though defendants No.2 has contended that at the time of partition, the plaintiffs were paid cash and gold, has however failed to furnish or produce any document or evidence to show that he plaintiffs were given any gold or cash at the time of purported oral partition. The Trial Court has also taken note of the fact that defendant No.1 himself has disputed any such oral partition and in turn has sought allotment of 1/4th share for himself in the suit property. The Trial Court referring to the mutation entries 13 at Ex.D5 has observed that the said mutation entries do not referred to allotment of any share to any other members of the family. Based on the aforesaid material evidence and appreciation of the same, the Trial Court has held that defendant Nos.2 to 5 have failed to prove their contention of oral partition.
14. The First Appellate Court concurring with the findings given by the Trial Court at paragraph Nos.22 to 24 has held that the defendants have not produced any other document except Exs.D1 to D5 to prove their case of partition and as such Exs.D1 to D5 hardly support the case of defendant Nos.2 to 4 regarding partition. Accordingly, dismissed the appeal.
15. It is not in dispute that the defendant No.2 was working as a village accountant. In the absence of defendant No.2 furnishing any acceptable evidence regarding partition, the allegation of he misusing his office and obtaining entry in his name ought to have been rebutted in the manner known to law. The Apex Court in 14 the case of Vineetha Sharma vs. Rakesh Sharma & Ors. reported in (2020) 9 SCC 1 at paragraph No.127 regarding the proof of oral partition has held as under:
"127-A special definition of partition has been carved out in the explanation. The intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of section 6, the intendment of legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous 15 public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place."
16. In the light of the aforesaid settled principle of law by the Apex Court and in the light of appreciation and re-evaluation of the evidence produced by defendant Nos.2 to 4, this Court is the considered view that the Trial Court and the First Appellate Court have committed no error in decreeing the suit allotting the shares of the plaintiffs and defendant Nos.1 and 2 in the ratio of 1/4th each.
17. In the circumstances, no substantial question of law arises in the matter. Accordingly, the appeal is dismissed.
Sd/-
JUDGE bnv/Srt