Karnataka High Court
Huchchayya S/O. Basalingayya Goudar vs Subhash S/O. Basalingayya Goudar on 22 June, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE DAY OF 22ND JUNE, 2022
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR.M.G.S.KAMAL
R.F.A.No.100159/2014
c/w
R.F.A.No.4082/2012 (PAR. & SEP. POSSN.)
IN R.F.A.No.100159/2014
BETWEEN
1. SHANTAVVA W/O SOMASHEKAR VASTRAD
AGE: 52 YEARS,
Digitally signed
by J MAMATHA OCC: HOUSEHOLD WORK,
Location: High
J Court of R/O. SHIROL,
Karnataka,
MAMATHA Dharwad Bench TQ : NARAGUND
Dharwad.
Date: 2022.07.04
11:20:52 +0530 DIST: GADAG-582101.
2. SUVARNA W/O BASAVARAJ BUDNIMATH
AGE: 40 YEARS,
OCC:HOUSEHOLD,
R/O. DEVARHIPPARAGI
TQ: SINDAGI
DIST: BIJAPUR-586101.
... APPELLANTS
(BY SRI M.N.BIKKANNAVAR, ADV. FOR
SRI ANAND B.KOLLI, ADV.)
-2-
AND
1. SUBASH BASALINGAYYA GOUDAR
AGE 48 YEARS, OCC SERVICE,
R/O. IDDALAGI, TQ HUNAGUND,
DIST BAGALKOT NOW AT DHARWAD-580001.
2. HUCHCHAYYA BASALINGAYYA GOUDAR
SINCE DECEASED BY HIS LRs
2(a) SMT.GEETHA
W/O SHANTAVEERAYYA HUCHCHESHWARAMATH
AGE: 41 YEARS,
OCC: HOUSEHOLD, R/O. KOTIKAL
AT POST:BADAMI TQ, PIN 587201.
2(b) SMT.LAKSHMI @ MURIGEMMA
W/O RAMESH HIREMATH,
AGE:38 YEARS, OCC:HOUSEHOLD,
R/O KORTIKOLLAR AT:POST
BASAVANABAGEWADI,
TQ: AND DIST:VIJAYPUR-586203.
2(c) SMT.KAVITA
W/O CHANNAVEERAYYA BANDIMATH
SINCE DECEASED BY HER LRs
2(c)(i) KUMARI SHAMBAVI
D/O CHANNAVEERAYYA BANDIMATH
AGE:9 YEARS, OCC:NIL,
R/O No.289, 52ND CROSS, 4TH BLOCK,
RAJAJINAGAR, BENGALURU-560 001.
2(c)(ii)KUMAR SANGAMESH
S/O CHANNAVEERAYYA BANDIMATH
AGE:7 YEARS, R/O No.289,
52ND CROSS, 4TH BLOCK, RAJAJINAGAR,
BENGALURU-560 001.
2(d) SMT.JAYASHREE
W/O KUMARSWAMY HIREMATH
AGE:33 YEARS, OCC:HOUSEHOLD,
-3-
R/O No.289, 52ND CROSS, 4TH BLOCK,
RAJAJINAGAR, BENGALURU-560010.
2(e) SMT.SHARADA
W/O SUNIL KUNDAGOLMATH
AGE:30 YEARS, OCC:HOUSEHOLD,
R/O No.99, PIPELINE ROAD,
6TH CROSS, SANTOSH NAGAR,
BENGALURU-560 010.
3. GOURAVVA W/O HUCHCHAYYA GOUDAR
AGE: 50 YEARS,
OCC: HOUSEHOLD WORK,
R/O. IDDALAGI,
TQ: HUNAGUND-587101.
4. VIRUPAKSHAYYA VIRABHADRAYYA BAGURMATH
AGE: 60 YEARS,
OCC: RETIRED,
R/O. MALAPUR ONI,
DHARWAD-580001.
5. VEERESH VIRUPAKSHAYYA BAGURMATH
AGE: 26 YEARS,
OCC: SERVICE,
R/O. MALAPUR ONI,
DHARWAD-580001.
6. SANGAYYA VIRUPAKSHAYYA BAGURMATH
AGE: 24 YEARS,
OCC: BUSINESS,
R/O. MALAPUR ONI,
DHARWAD-580001.
... RESPONDENTS
(BY SRI MALLIKARJUNSWAMY B.HIREMATH, ADV. FOR R1,
APPEAL AGAINST R2 TO R4 ABATED
V.C.O.DATED 13.08.2010,
SRI K.S.PATIL, ADV. FOR R5 AND R6)
THIS APPEAL IS FILED U/S 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 19.03.2012 PASSED IN
-4-
O.S.No.143/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HUNAGUND, DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
IN R.F.A.No.4082/2012
BETWEEN
1. HUCHCHAYYA S/O. BASALINGAYYA GOUDAR
SINCE DECEASED BY HIS LRs
1(a) SMT.GEETHA
W/O SHANTAVEERAYYA HUCHCHESHWARAMATH
AGE: 41 YEARS, OCC:HOUSEHOLD,
R/O.KOTIKAL, AT/POST:BADAMI,
TQ/DIST:BAGALKOT.
1(b) SMT.LAKSHMI @ MURIGEMMA
W/O RAMESH HIREMATH
AGE:38 YEARS, OCC:HOUSEHOLD,
R/O KORTIKOLLAR
AT/POST:BASAVANABAGEWADI
TQ/DIST:VIJAYAPUR.
1(c) SMT.KAVITA
W/O CHANNAVEERAYYA BANDIMATH
SINCE DECEASED BY HER LRs
1(c)(i) KUMARI SHAMBAVI
D/O CHANNAVEERAYYA BANDIMATH
AGE:9 YEARS
1(c)(ii) KUMAR SANGAMESH
S/O CHANNAVEERAYYA BANDIMATH
AGE:7 YEARS
BOTH APPELLANTS No.1(c)(i) and 1(c)(ii) ARE MINORS
AND ARE REPRESENTED BY THEIR MINOR GUARDIAN
MATERNAL AUNT NAMELY APPELLANT No.1(d)
1(d) SMT.JAYASHREE
W/O KUMARASWAMY HIREMATH
-5-
AGE:33 YEARS, OCC:HOUSEHOLD,
R/O No.289, 52ND CROSS,
4TH BLOCK, RAJAJINAGAR,
BENGALURU-10.
1(e) SMT.SHARADA W/O SUNIL KUNDAGOLMATH
AGE:30 YEARS, OCC:HOUSEHOLD,
R/O No.99, PIPELINE ROAD, 6TH CROSS,
SANTOSH NAGAR, BENGALURU
...APPELLANTS
(BY SRI BASAVARAJ BANNUR, ADV.)
AND
1. SUBHASH S/O. BASALINGAYYA GOUDAR
AGE 54 YEARS, OCC SERVICE,
R/O. IDDALAGI, TQ HUNGUND,
DIST BAGALKOT. NOW AT DHARWAD.
2. SMT.GOURAVVA W/O. HUCHCHAYYA GOUDAR
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O. IDDALAGI, TQ: HUNGUND,
DIST: BAGALKOT.
3. SMT.SHANTAVVA W/O. SOMASHEKAR VASTRAD
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O. SHIROL, TQ: NARAGUND,
DIST: GADAG.
4. SMT.SUVARNA W/O. BASAVARAJ BUDNIMATH
AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
R/O. DEVARHIPPARAGI, TQ: SINDAGI,
DIST: BIJAPUR.
5. VIRUPAKSHAYYA S/O. VIRABHADRAYYA BAGURMATH
AGE: 66 YEARS, OCC: RETIRED,
R/O. MALAPUR ONI, DHARWAD.
6. SANGAYYA S/O. VIRUPAKSHAYYA BAGUARMATH
AGE: 32 YEARS, OCC: SERVICE,
-6-
R/O. MALAPUR ONI, DHARWAD.
7. SANGAYYA S/O. VIRUPAKSHYYA BAGUARMATH
AGE: 30 YEARS, OCC: BUSINESS,
R/O. MALAPUR ONI, DHARWAD.
RESPONDENTS
(BY SRI MALLIKARJUNSWAMY B.HIREMATH, ADV. FOR R1,
R2 SERVED,
SRI ANAND R.KOLLI, ADV. FOR R3,
SRI K.S.PATIL, ADV. FOR R4 TO R7)
THIS RFA FILED U/S.96 R/W. ORDER 41 RULE 1 OF THE
CPC, AGAINST THE JUDGMENT AND DECREE DTD:19.03.2012
PASSED IN O.S.NO.143/2006 ON THE FILE OF THE SENIOR
CIVIL JUDGE, HUNAGUND, DECREEING THE SUIT FILED FOR
PARTITION & SEPARATE POSSESSION.
THESE APPEALS COMING ON FOR FINAL HEARING ON
09.06.2022 AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the judgment and decree passed against them defendant No.1 in O.S.No.143/2006 on the file of the Senior Civil Judge, Hungund, has preferred R.F.A.No.4082/2012 and defendants 3 and 4 have preferred R.F.A.No.100159/2014.
2. Respondent No.1 in both the appeals was the plaintiff before the trial Court. Respondents-Gouravva, Shantavva, Suvarna, Virupakshayya, Sangayya and -7- Veeresh were the other defendants in the suit. Defendant No.1-Huchchayya Basalingayya Goudar died pending these appeals. Therefore, his children are brought on record. His wife Gouravva was already on record as defendant No.2 and one of the respondents in these appeals.
3. For the purpose of convenience, parties will be referred to henceforth according to their ranks before the trial Court.
4. Plaintiff and defendant No.1 are the sons of Basalingayya Goudar. Defendants 3, 4 and one Rathna are the daughters of Basalingayya and Murigevva. Basalingayya died in the year 2003. Murigevva died in the year 1976. Rathna, the sister of plaintiff and defendants 1, 3 and 4 died before filing the suit. Defendants 5 to 7 are her husband and two sons. The pedigree was shown in scheduled 'A' of the plaint as follows: -8-
Basalingayya (died in the year 2003) Murigevva (died in the year 1986) Huchchayya Subsh Shantavva Suvarna Ratna (D.1) (Plff) (D.3) (D.4) (died) Gouravva Virupakshayya (D.2) (husband)(D.5) Veeresh Sangayya (D.6) (D.7)
5. The subject matter of the suit were shown in schedule 'B' as follows:
Sl. Description of properties Situated Taluka No. RS No. A-G Asst 1 116/1 4-00 8-50 Iddalagi Hunagund 2 116/4A 6-29 13-60 -do- -do-
3 38/3 3-06 3-78 -do- -do-
4 116/4B 6-29 18-59 -do- -do-
5 116/3 4-00 8-50 -do- -do-
6 116/2 4-00 8-50 -do- -do-
7 121/1 9-01 18-12 -do- -do-
8 179/1 4-00 6-36 -do- -do-
9 179/3 5-00 7-59 -do- -do-
10 179/2 4-00 6-36 -do- -do-
11 House VPC No.93 at Sl.No.128 situated at Iddalagi village of Dhannur VPC.
12 Open space VPC No.350 at Sl.No.494 situated at Iddalagi village of Dhannur VPC.-9-
6. The case of the plaintiff in brief is as follows:
Basalingayya was the propositus of the family. Plaintiff and defendant No.1-Huchchayya Basalingayya Goudar constituted Hindu Joint Family. Suit schedule 'B' properties are the ancestral joint family properties. Basalingayya acquired some of those properties in the name of the family members out of the joint family funds. During his life time, defendant No.1 being the eldest son was helping Basalingayya in agricultural and financial affairs of the family. After the death of Basalingayya, defendant No.1 as the eldest son was managing the affairs of the family. Due to his employment in PWD department, the plaintiff used to stay wherever he was posted and occasionally visit their native village, Iddalagi. Neither during the life time of Basalingayya nor after his death, there was any partition in the joint family. The first defendant taking advantage of his Managership and innocence of Basalingayya, in the year 1986 has concocted mutation entry No.2893 to project that Basalingayya has -10- effected a partition in the joint family properties. Similarly, he has concocted the documents to project that the partition has taken place between the plaintiff and the first defendant. The plaintiff and defendant No.1 are in joint possession and enjoyment of the suit properties and on learning about the revenue entries, when the plaintiff demanded for partition, the first defendant denied to effect partition and give his share. Therefore, he seeks partition and separate possession of 6/15th share in the suit schedule properties.
7. Defendant No.1 filed his written statement. His defence in brief is as follows:
Relationship between the parties was admitted. But it was denied that all the suit schedule properties were the joint family properties. It is further denied that Basalingayya acquired the properties in the name of the members of the joint family out of the income derived from the ancestral properties. It was also denied that he concocted the mutation entries to show that there was a -11- partition. Basalingayya during his life time was the Manager of the family. Except the properties bearing R.S.Nos.116/1 and 116/2 of Iddalagi village, all the other schedule 'B' properties are the self-acquired properties of defendant No.1. Basalingayya inherited those properties from his adopted father. Therefore, they were his self- acquired properties. The plaintiff's wife-Shashikala died an unnatural death. Therefore, plaintiff and defendant No.1 were prosecuted in a criminal case. Plaintiff was involved in a civil litigation for custody of his child. For such litigations, defendant No.1 spent Rs.3 lakhs raising some loans. Plaintiff was suspended during his service. To avoid further complication, Basalingayya effected a partition in the family during his life time. That was recorded subsequently under a Memorandum of Partition dated 20.03.1993. Plaintiff has executed the memorandum of partition. In that partition, plaintiff was allotted schedule 'B' item Nos.7, 9 and 10 properties with 3 H.P. pumpset. All other lands were allotted to the share of defendant No.1. Considering that defendant No.1 had -12- spent Rs.3 lakhs for the purpose of plaintiff, in the partition the plaintiff gave up 14 acres of land in Sy.Nos.121 and 179/3 of Iddalagi village and retained R.S.No.179/2 measuring 4 acres. Accordingly, the mutation entries were effected to the knowledge of the plaintiff. There was an error in M.E.No.2893 regarding allotment of property to his wife/defendant No.2. After the death of Basalingayya, name of defendant No.1 was entered as per M.E.No.29 in the year 2004. Since there was already a partition, plaintiff is not entitled to partition again.
8. Defendants 2 to 4 adopted the written statement of defendant No.1, thereby they supported him. Defendant No.5 filed written statement supporting the case of the plaintiff and he claimed that as the heirs of Rathna, daughter of Basalingayya, in her share himself and defendants 6 and 7 are entitled to equal share. Defendants 6 and 7 adopted his written statement.
9. On the basis of such pleadings, the trial Court framed the following issues/re-casted issues: -13-
i) Whether the plaintiff proves that, the suit properties are the joint family ancestral properties of himself and the defendants?
ii) Whether defendant No.1 proves that, during the lifetime of deceased Basalingayya he has effected the partition, thereafter on 20.03.1993 memorandum of partition deed recorded, accordingly, Sy.No.121/1, 179/3 and 179/2 with 3:HP pump-set allotted to the share of plaintiff?
(This issue is re-casted as per order dated 09.03.2012)?
iii) Whether the plaintiff proves that, he is having share in the suit properties? If so; what is his share?
iv) Whether the plaintiff is entitled to the relief sought for?
v) To what order or decree?
10. In support of the case of the plaintiff, he got himself examined as PW-1, two witnesses PWs-2 and 3 and got marked Ex.P.1 to Ex.P.16. In support of his case, defendant No.1 got himself examined as DW-1. The husband of defendant No.3 was examined as DW-2 and son-in-law of defendant No.1 was examined as DW-3 and -14- defendant No.7 was examined as DW-4. On defendants' behalf, Ex.D.1 to Ex.D.11 were marked. The trial Court on hearing both side, by the impugned judgment and decree, decreed the suit of the plaintiff declaring that he is entitled to 1/6th share and defendant Nos.5 to 7 together are entitled to 1/6th share in the suit schedule property. The trial Court held that defendant No.1 has failed to prove that his father effected partition in the year 1986 as per Ex.P.13, M.E.No.2893. The trial Court further held that Ex.D.9, the alleged Memorandum of Partition is not admissible in evidence and the execution of the same by the plaintiff was not proved.
11. The trial Court held that the entire suit schedule properties were the joint family properties of plaintiff, defendant No.1 and Basalingayya and on his death, all his children are entitled to equal share. On holding so, the trial Court awarded 1/6th share to each of the children. Aggrieved by the said judgment and decree, -15- the 1st defendant has preferred R.F.A.No.4082/2012 and defendants 3 and 4 have preferred R.F.A.No.100159/2014.
12. Submission of Shri Basavaraj Bannur, learned counsel for the appellant/defendant No.1:
i) The mutation entries evidencing the partition during the lifetime of the father were in existence since 1986. The earlier partition of 1986 was recorded by memorandum of partition under Ex.D.9. Consequent to Ex.D.9 again mutation entries were effected in 1993.
Such mutation entries were within the knowledge of the plaintiff and he had not challenged them upto 2006.
ii) The parties were in separate possession and enjoyment of the properties according to the partition. Plaintiff was not in joint possession as alleged by him. The mutation entries have a presumptive value regarding such possession. The trial Court committed error in -16- overlooking those documents and circumstances.
iii) Admittedly due to the death of the wife of the plaintiff, the family members were implicated in criminal and civil cases. In the deposition in G and W Case No.3/1990, Ex.D.11, the plaintiff admitted that he is getting income from the properties allotted to his share. As he was suspended from service, defendant No.1 incurred the expenses of those litigations. Considering all that more extent of properties were allotted to defendant No.1. The trial Court should have considered Ex.P.13 and Ex.D.9 atleast for collateral purpose of examining whether there was a partition.
iv) Since Basalingayya acquired the properties from his adopted parents, they become his self-acquired properties. Therefore, he was -17- entitled to give those properties to defendant No.1 as per his wish.
v) The mutation entries show that in the partition of the year 1986, Basalingayya had retained certain properties with a condition that after his death, those properties shall go to defendant No.1. Accordingly, after his death, they devolved on defendant No.1.
vi) The trial Court failed to appreciate the evidence, draw proper inferences and appreciate legal position in law. Therefore, the impugned judgment and decree are liable to be set aside.
vii) In support of his submissions, he relied on the following judgments:
a) TEK BAHADUR BHUJIL VS. DEBI SINGH BHUJIL AND OTHERS reported in AIR 1966 SC 292, -18-
b) DIGAMBAR ADHAR PATIL VS. DEVRAM GIRDHAR PATIL (DEAD) AND ANOTHER reported in AIR 1995 SC 1728,
c) SUBRAYA M.N. VS. VITTALA M.N. AND OTHERS reported in 2016 (4) KCCR 2986 (SC),
d) ARSHNOOR SINGH VS. HARPAL KAUR AND OTHERS (Civil Appeal No.5124/2019) (Arising out of SLP (Civil) No.6788/2019,
e) BHAGWAT SHARAN (DEAD THROUGH LRs) VS. PURUSHOTTAM AND OTHERS (Civil Appeal No.6875/2008),
f) CHINNAPPAREDDIGARI PEDA MUTYALA REDDY VS. CHINNAPPAREDDIGARI VENKATA REDDY AND OTHERS (Judgment of High Court of Andhra Pradesh in Appeal No.101/1962 decided on 07.12.1967),
g) THIRUVENGADAM PILLAI VS.
NAVANEETHAMMAL AND ANOTHER reported in (2008) 4 SCC 530, -19-
h) SITA RAM BHAMA VS. RAMVATAR BHAMA (ARISING OUT OF SLP (C) 11067/2017),
i) Unreported judgment of this Court in R.F.A.No.2208/2018 disposed of on 14.01.2020,
j) RAJPAL SINGH VS. SAROJ (DECEASED) THROUGH LRs AND ANOTHER (CIVIL APPEAL No.3489/2022),
k) RAVINDER KAUR GREWAL AND OTHERS VS. MANJIT KAUR AND OTHERS (CIVIL APPEAL No.7764/2014),
l) K.ARUMUGA VELAIAH VS.
P.R.RAMASAMY AND ANOTHER (CIVIL
APPEAL No.2564/2012),
m) D.S.LAKSHMAIAH AND ANOTHER VS.
L.BALASUBRAMANYAM AND ANOTHER
(CIVIL APPEAL No.2089/2000 DECIDED
ON 27.08.2003),
n) SHRINIVAS KRISHNARAO KANGO VS.
NARAYAN DEVJI KANGO AND OTHERS
(1954 AIR 379),
-20-
o) T.S.SUBBARAJU VS. T.A.SHIVARAMA
SETTY AND OTHERS (AIR 2004 KANT.
479),
13. Submissions of Shri M.N.Bikkannavar,
learned counsel for appellants/defendants 3 and 4.
i) Though admittedly defendants 3 and 4 were the daughters of Basalingayya, the trial Court did not allot any share to them in the partition. Moreover, all the 5 children are entitled to equal 1/5th share in the property.
ii) The judgment and decree of the trial Court requires to be modified awarding 1/5th share each to defendants 3 and 4 also.
14. Submissions of Shri Mallikarjunaswamy B.Hiremath, learned counsel for plaintiff/respondent:
i) As the relationship between the parties and acquisition of properties by Basalingayya was -21- not disputed, it was for the first defendant to prove the partition set up by him. He failed to prove the oral partition under Ex.P.13 or the alleged Memorandum of Partition as per Ex.D.9.
ii) The language of Ex.D.9 shows that there was an alleged partition presentee. Therefore, the trial Court rightly held that the document requires registration and is inadmissible in evidence.
iii) Defendant No.1 himself in his evidence admitted that at the age of 15 years, he started managing the affairs of the joint family.
That means during the life time of his father only he started managing the joint family. The presumption under the law is that the property standing or acquired in the name of the manager of the family are the joint family properties.
-22-
iv) Defendant No.1 failed to prove that he had any independent income to acquire the properties under the sale deeds Ex.D.1 and Ex.D.2. Mere mutation entries do not confer the title or prove the partition unless it is proved that such entries were duly made. There was no proof of ouster of the plaintiff. Considering all those aspects, the trial Court has rightly decreed the suit.
v) There is an arithmetical error in awarding 1/6th share instead of 1/5th share. To that extent, the appeal of defendants 3 and 4 may be allowed. He seeks dismissal of the appeal of defendant No.1.
15. Having regard to the rival submissions and the material on record, the questions that arise for consideration are:
i) Whether the trial Court was justified in holding that the plaintiff has succeeded in proving that -23- the suit schedule properties are the ancestral joint family properties?
ii) Whether the trial Court was justified in holding that defendant No.1 has failed to prove that there was already a partition in the joint family properties?
iii) Whether the impugned judgment and decree is sustainable in law?
ANALYSIS
16. The relationship between the plaintiff and defendants was not in dispute. It was also not in dispute that Basalingayya, the father of plaintiff and defendants, was given in adoption to one Kappaiah Goudar. Defendant No.1 even did not dispute that except the properties shown under Ex.D.1 and Ex.D.2 i.e., Sy.Nos.116/1 and 116/2 i.e., (plaint schedule 'B' Item Nos.1 and 6) all other properties devolved on Basalingayya from his adoptive father Kuppaiah Goudar.
-24-
Reg: Nature of properties
17. Learned counsel for defendant No.1 in his argument contends that the properties acquired from the adoptive family in the hands of adopted son becomes his self-acquired properties, therefore, the properties were the self-acquired properties of Basalingayya. The other contention is that since sale deeds Ex.D.1 and Ex.D.2 in respect of Sy.Nos.116/1 and 116/2 stood in the name of defendant No.1, they were his self-acquired properties.
18. Admittedly, the parties were Hindus and governed by the Hindu Adoptions and Maintenance Act, 1956 and Hindu Succession Act, 1956. Section 12 of the Hindu Adoptions and Maintenance Act, 1956 which speaks of the effects of adoption reads as follows:
"12. Effects of adoption ― An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:-25-
Provided that ―
(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.."
19. A reading of the above provisions shows that once the child is adopted, for all purposes he becomes the child of adoptive father. Therefore, his progeny becomes the lineal descendants to the adoptive father. The only exception is that, if the adoptive son begot any children before his adoption, they will not become the lineal descendents of adoptive father. Therefore, the question is whether plaintiff and defendants were the children born to Basalingayya before his adoption to Kuppaiah Goudar or after the adoption. -26-
20. As per Ex.D.8 defendants' own document, Kuppaiah Goudar adopted Basalingayya on 13.04.1929. The said Adoption Deed Ex.D.8 shows that Kappaiah Goudar was none other than the maternal grandfather of Basalingayya. In the adoption deed, Basalingayya was shown as minor and he was represented by his genetic father Shantaveerayya. It is not the case of defendant No.1 that himself or his other siblings were born before 1929. He has produced Ex.D.1 and Ex.D.2, the sale deeds dated 14.03.1979 and 19.07.1980 to claim that the property shown therein are his self-acquired properties. In those documents, his age is shown as 24 years. If calculated accordingly, he must be born in 1956 i.e., after adoption. Defendant No.1 in his cross-examination in paragraph 1 has admitted that his father died in the year 2003. In his evidence, he has given unequivocal admission that the suit properties were the joint family properties of his father. Having regard to such admissions and Section 12 of the Act, his contention that the properties devolved on his father through his adoptive -27- family become his self-acquired properties deserves no merit.
21. So far as Sy.Nos.116/1 and 116/2, no doubt the sale deeds of those properties stood in the name of defendant No.1. It is true that under Hindu law, the presumption is with regard to the jointness of the family and not that the joint family owns the joint family properties. The sum and substance of the judgments relied on by learned counsel for defendant No.1 is that there is no presumption with regard to the properties standing in the name of a member of the joint family are the properties of Hindu Undivided Family. But the exception is that, if the properties stand in the name of the Manager/Kartha of the family and it is shown that there were joint family properties generating nucleus, then the presumption is that they are acquired from the joint family nucleus. In such case, defendant No.1 has to establish that he had independent source of income to acquire them. -28-
22. No doubt in the year 1979-1981, Basalingayya the father of the plaintiff and defendant No.1 was alive and he was the senior member. But whether he was the Manager of the family at the time of acquisition of those properties is the question. According to the plaintiff, since defendant No.1 was the elder son, he was managing the affairs of the family. DW-1 himself in his cross- examination at paragraph 1 states that his father entrusted him the management of the family affairs when he was aged 15 years. He further admitted that when he was managing the affairs of the family as Kartha, himself, plaintiff and other defendants were living in joint family. As per his admission only, his father acquired the other properties from his adoptive family.
23. Ex.P.13 which is relied by the contesting defendants to claim that the father had effected the partition in the joint family properties shows that family had large extent of lands. It is not his case that they were not generating any income. As already pointed out, in -29- Ex.D.1 and Ex.D.2 defendant No.1 was shown as aged 24 years. Therefore, it becomes clear that he acquired those properties after he assuming the charge of Managership of the family. Therefore, the burden was on him to show that he had any independent income or independent source of income to acquire those properties. No evidence was led by defendant No.1 to show such independent income or source of income. Therefore, there is no merit in the contention that the properties acquired under Ex.D.1 and Ex.D.2 were his self-acquired properties. Therefore, the trial Court was justified in holding that all the suit schedule properties were the ancestral joint family properties.
24. Though the learned counsel for the appellant/defendant No.1 relied on host of the judgments as aforesaid, it can only be said that the said judgments do not in any way advance his case having regard to the facts of the present case.
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Reg: Prior Partition
25. The second contention of the defendant No.1 with regard to the nature of properties was that their father Basalingayya effected the partition in the year 1986 itself which was reduced to M.E.No.2893 as found in Ex.P.13. He claims that thereafter, the family lost the character of joint family and the properties lost the nature of properties of Hindu Undivided Family. At one breath, he claims that they were all the self-acquired properties of Basalingayya. If they were the self-acquired properties of Basalingayya, he could not have during his life time transferred the same to his sons without executing registered document in view of Section 17 of the Registration Act. In the said partition, no share was given to the daughters.
26. Plaintiff claims that since he was in government service, he had to live wherever he was posted and defendant No.1 was managing the properties on behalf of the joint family members. Therefore, he -31- claimed that they were in joint possession of the properties. He further claimed that the revenue entry in Ex.P.13 was concocted by defendant No.1 taking advantage of his father's innocence.
27. DW-1 in paragraph 2 of his cross-examination unequivocally admitted that the plaintiff joined service in the year 1985 and he was occasionally visiting the family house. He also admitted that during that time, he was cultivating the lands and he was acting as Manager of the Hindu Undivided Family. He did not lead any evidence to show that his father had given a requisition to the revenue authorities reporting the alleged partition. If he was managing the affairs of the family, why his father gave report to the revenue authorities was not explained.
28. To deny the claim of the plaintiff, defendant No.1 set up four theories. The first one was that the properties were the self-acquired properties of their father and that their father effected partition in the year 1986 itself. Second one was that on the death of plaintiff's wife, -32- he was involved in criminal case and was suspended from his service. Therefore, defendant No.1 spent Rs.2,85,000/- to bring him out of such distress. Having regard to that the plaintiff received only land bearing Sy.No.179 measuring 4 acres, major portion of the properties were allotted to defendant No.1. Third one was that Basalingayya had retained the lands in Sy.Nos.38/3, 116/4B and 179/1 and as he looked after Basalingayya, he made an arrangement that those properties shall go to defendant No.1 after his death. In other words, he says that Basalingayya bequeathed those properties by way of revenue entries as per Ex.P.14. The fourth one was that there was a memorandum of partition between plaintiff and defendant No.1 under Ex.D.9. He further claimed that since he had spent for litigation expenses of the plaintiff, out of the share allotted to him retaining only 4 acres in Sy.No.179/2, plaintiff relinquished his interest in 14 acres in favour of defendant No.1.
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29. If there was a partition under M.E.No.2893, the properties allegedly allotted to the share of Basalingayya become self-acquired properties in his hands. Therefore, he could not during his lifetime convey the said properties under the revenue entry Ex.P.14 as claimed by defendant No.1. As per Section 63 of the Succession Act, 1925, any bequeath of an immovable property shall be by a written document attested by two witnesses. Therefore, the theory of the properties becoming the exclusive properties of defendant No.1 under Ex.P.14 is not at all tenable in law.
30. So far as the alleged memorandum of partition Ex.D.9, the trial Court marked the said document in evidence subject to the objection that the same is compulsorily registrable and inadmissible in evidence. If any interest is created in a property by way of partition such document requires compulsory registration and payment of the required stamp duty. The only exemption is a document which records the past transaction of -34- partition which is called Memorandum of Partition. Caption of Ex.D.9 itself is mutual partition deed "Apsat Vatani Patra". In paragraph 2 of that document, it is stated that the lands are the joint family lands and they could not continue jointly and in the presence of the panchas they have divided the properties as enumerated in the document. The document also states that the parties have taken possession of the properties on the same day according to the shares allotted to them under the document. Therefore, it is clear that Ex.D.9 is not a document which records the past transaction but a document which records the transaction presentee. Therefore, the trial Court was right in holding that the said document is inadmissible in evidence.
31. According to defendant No.1, there was a partition in the year 1986. Then what was the need to effect another partition on 20.03.1993 under Ex.D.9 was not explained by defendant No.1. Apart from that the plaintiff seriously disputed his signature on Ex.D.9. To -35- prove the execution of the said document by the plaintiff, defendant No.1 examined DWs-2 and 3. DW-2 is the husband of defendant No.3 who supported defendant No.1 in the suit. Similarly, DW-3 is the son-in-law of defendant No.1. DWs-2 and 3 were not the elders of the village and they were from other places.
32. Ex.D.9 states that the partition is effected in the presence of 4 panchas, whereas except the signatures of DWs-2 and 3, signatures of no other panchas are found on Ex.D.9. Contrary to the contents in Ex.D.9, DW-2 says that at the time of partition in 1993, no elder of the village or the brothers of plaintiff and DW-1 were present. He says that even sisters of the parties were not present. DW-3 in his cross-examination states that on that day, no talks as to which property shall go to whose share were held and similarly no document was executed.
33. Though it was contended that the stamp paper of Ex.D.9 was purchased by the plaintiff, the stamp vendor was not examined and the stamp sale register was not -36- summoned. No other person acquainted with the handwriting of the plaintiff was examined nor the document was sought to be referred to the handwriting experts' opinion to prove his signature. Therefore, the trial Court rightly rejected Ex.D.9 and disbelieved the alleged arrangement under the said document.
34. So far as the father giving requisition to revenue authorities to convey the properties fallen to his share to defendant No.1 that means the oral Will. First of all the partition of the year 1986 or 1993 was not proved. Secondly, there cannot be any oral Will to convey the immovable properties in view of Section 63 of the Indian Succession Act, 1925.
35. The appellants have filed IA-1/2015 for production of the alleged relinquishment deed dated 16.09.1994 and the copy of the resolution dated 11.04.2003. The said documents are produced to claim that Basalingayya relinquished his interest in house No.93 and plot No.350 i.e., plaint schedule 'B' item Nos.11 and -37- 12 properties and on that basis, the Village Panchayath had passed resolution to enter his name to those properties. The claim of the appellant that there was a partition and some properties were allotted to the share of Basanagouda is already rejected. More over, the alleged relinquishment deed is unregistered and not sufficiently stamped. Under such circumstances, those documents do not serve any purpose. No acceptable reasons are assigned for production of the same at the appellate stage and they are not the requirement of the Court. Therefore, the application is liable to be rejected. The finding of the trial Court that the prior partition is not proved does not call for any interference.
Reg: Share of sisters
36. Defendants 3 and 4 have filed R.F.A.No.100159/2014 on the ground that they too should have been allotted a share while passing the decree and secondly on the ground that the allotment of 1/6th share is incorrect. It is no doubt true that defendant Nos.3 and 4 -38- before the trial Court adopted the written statement of defendant No.1 thereby supporting the theory of prior partition. It is a settled law that whenever partition is effected, the due share has to be given to all the parties entitled.
37. The appellant/defendant No.1 has filed IA-1/2013 to produce the birth certificates and transfer certificates of defendant No.3 and deceased Ratnavva. He contends that they are the daughters born before 1956, therefore, they are not the co-parceners and not entitled to any share under the Hindu Succession Act.
38. The Hon'ble Supreme Court in VINEETA SHARMA VS. RAKESH SHARMA reported in (2020) 9 SCC 1, has held that in view of amendment to Section 6 of the Hindu Succession Act, 1956 the daughters become co- parceners by birth and are entitled to the share in the co- parcenery property. In the light of the said judgment, the contention in IA-1/2015 and the documents produced -39- along with the same lost their relevance. Therefore, the application is liable to be rejected.
39. Defendants 3 and 4 being the daughters of Basalingayya were entitled to equal share along with plaintiff and defendant No.1 in the co-parcenary property. Therefore, plaintiff, defendant Nos.1, 3, 4 and Rathna, the deceased daughter of Basalingayya get equal share i.e., 1/5th share. Defendants 5 to 7 being the legal representatives of deceased Rathna get her share. Therefore, the judgment and decree requires to be modified only to that extent. Hence, the following:
ORDER
i) R.F.A.No.100159/2014 is allowed.
ii) The impugned judgment and decree in O.S.No.143/2006 on the file of the Senior Civil Judge, Hunagund, is modified as follows:
a) Suit of the plaintiff is partly decreed. -40-
b) Plaintiff, defendant Nos.1, 3 and 4 are awarded 1/5th share each and the defendants 5 to 7 together are awarded 1/5th share.
c) There shall be a preliminary decree accordingly subject to the other parties paying the court fee.
d) No order as to costs.
iii) R.F.A.No.4082/2012 is disposed of in terms of the order in R.F.A.No.100159/2014.
IA-1/2013 and IA-1/2015 are dismissed.
[Sd/-] JUDGE [Sd/-] JUDGE Jm/-