Karnataka High Court
Smt.Mallawwa W/O Chanabasappa ... vs Sri.Basappa S/O Irappa Hubballi @ ... on 16 November, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC-D:13355-DB
RFA No.100273 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100273 OF 2019 (PAR/POS)
BETWEEN:
1. SMT. MALLAWWA
W/O. CHANABASAPPA KELAGERI,
AGED ABOUT 63 YEARS,
OCC: HOUSEHOLD,
R/AT: ALADAKATTI,
TQ: KALGHATAGI.
2. SMT. BASAWWA @ SHANTHA
W/O. SHARANAPPAGOUDA PATIL,
AGED ABOUT 59 YEARS,
OCC: HOUSEHOLD,
R/AT: SIDDAGANGA NAGAR,
Digitally signed by
K M SOMASHEKAR UNKAL, HUBBALLI.
Location: HIGH
COURT OF
KARNATAKA
DHARWAD BENCH 3. SMT. GURUSIDDAWWA @ SAVITHIRI
Date: 2023.11.21
14:51:40 +0530 W/O. MAHADEVAPPA ARALIKATTI,
AGED ABOUT 57 YEARS,
OCC: HOUSEHOLD,
R/AT: BYAHATTI, TQ: HUBBALLI.
4. SMT. NEELAWWA @ LEELA
W/O. VEERANGOUDA BUDIHAL,
AGED ABOUT 53 YEARS,
OCC: HOUSEHOLD WORK,
R/AT: D.C.M. TOWNSHIP,
1ST MAIN, 4TH CROSS,
HARSHITA, 1ST FLOOR,
91-100-572, DAVANAGERE.
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RFA No.100273 of 2019
5. SMT. ANNAPURNA
W/O. GANGAPPA SANNA TANGI
AGED ABOUT 47 YEARS,
OCC: HOUSEHOLD,
R/AT: SABARAGIDDAD ONI,
BYAHATTI, TQ: HUBBALLI.
...APPELLANTS
(BY SRI. MALLIKARJUN B. HIREMATH, ADVOCATE)
AND:
1. SRI. BASAPPA
S/O. IRAPPA HUBBALLI @ HEBBALLI,
SINCE DEAD BY LRs.,
1(A). CHIDANAND
S/O. BASAPPA HUBBALLI @ HUBBALLI,
AGED ABOUT 36 YEARS,
OCC: AGRICULTURE,
R/AT: SABARAGIDAD ONI,
BYAHATTI, HUBBALLI TALUK.
1(B). UMESH
S/O. BASAPPA HUBBALLI @ HEBBALLI,
AGED ABOUT 33 YEARS,
OCC: AGRICULTURE,
R/AT: SABARAGIDAD ONI,
BYAHATTI, HUBBALLI TALUK.
2. SRI. RUDRAPPA
S/O. IRAPPA HUBBALLI @ HEBBALLI,
AGED ABOUT 66 YEARS,
OCC: AGRICULTURE,
R/O: SABARAGIDAD ONI,
BYAHATTI, TQ: HUBBALLI.
3. SRI. KALLAPPA
S/O. IRAPPA HUBBALLI @ HEBBALLI,
AGED ABOUT 49 YEARS,
OCC: AGRICULTURE,
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RFA No.100273 of 2019
R/AT: SABARAGIDAD ONI,
BYAHATTI, TQ: HUBBALLI.
4. SMT. GANGAWWA
W/O. MALLAPPA HUBBALLI @ HEBBALLI,
AGED ABOUT 61 YEARS,
OCC: AGRICULTURE,
R/AT: SABARAGIDAD ONI,
BYAHATTI, TQ: HUBBALLI.
5. SRI. MANJUNATH
S/O. MALLAPPA HUBBALLI @ HEBBALLI,
AGED ABOUT 37 YEARS,
OCC: AGRICULTURE,
R/AT: SABARAGIDAD ONI,
BYAHATTI, TQ: HUBBALLI.
6. SMT. KAMALAKSHI
W/O. ASHOK MANKWAD,
AGED ABOUT 35 YEARS,
OCC: HOUSEHLD,
R/AT: KALAKERI, TQ: NARAGUND.
7. SMT. REKHA
W/O. BASAPPA ARALI,
AGED ABOUT 31 YEARS,
OCC: HOUSEHOLD,
R/AT: SABARAGIDAD ONI,
BYAHATTI, TQ: HUBBALLI.
...RESPONDENTS
(R1(A) AND R1(B) ARE SERVED ON IA 1/21 TO IA 3/21;
R1(A) IS SERVED ON MAIN APPEAL;
R1(B) IS HELD SUFFICIENT;
R2, R3 AND R5 TO R7 ARE SERVED;
R4 IS HELD SUFFICIENT)
THIS RFA IS FILED UNDER SEC. 96 READ WITH ORDER
41 RULE 1 OF CPC., 1908, AGAINST THE JUDGMENT AND
DECREE DATED 09.01.2019 PASSED IN O.S.NO.155/2018 ON
THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE,
HUBBALLI, PARTLY DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
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RFA No.100273 of 2019
THIS RFA, COMING ON FOR ADMISSION, THIS DAY,
SANDESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the appellants.
2. This Court has issued notice to the respondents. The respondents, though served with the notice, have not chosen to engage a counsel.
3. This appeal is filed by the plaintiffs against the judgment and decree, dated 09.01.2019, passed in O.S. No.155/2018 by the I Additional Senior Civil Judge, Hubballi (for short, 'the Trial Court').
4. The factual matrix of the plaintiffs' case before the Trial Court is:
(a) One Mallappa and his wife viz., Mallawwa are the original propositus of their family. Both Mallappa and Mallawwa had a daughter by name Ningavva, who is the mother of the plaintiffs and defendants No.1 to 3. -5-
NC: 2023:KHC-D:13355-DB RFA No.100273 of 2019 The elder son of Ningawwa by name Mallappa expired in the year 2015 leaving behind his wife (defendant No.4) and three sons (defendants No.5 to 7). The original propositus Mallappa and his wife Mallawwa died leaving behind their only daughter Ningawwa. The said Ningawwa was given in marriage to one Irappa of Hebballi village. The said Irappa left Hebballi village and started to stay at Byahatti in the parents' house of Ningawwa.
(b) It is the case of the plaintiffs that the suit schedule properties belonged to the parents of Ningawwa. The said Ningawwa was an illiterate person and she used to put 'left thumb mark'. The husband of Ningawwa i.e., Irappa stating that loan has to be raised, got his name entered illegally. That Ningawwa had not executed any relinquishment deed in favour of her husband giving up her right over the landed property bearing block No.83 of Byahatti village. It was also stated that the house properties were standing in the -6- NC: 2023:KHC-D:13355-DB RFA No.100273 of 2019 name of Ningawwa and defendants No.1 to 3. The entries made in the name of Irappa were illegal and not binding on the shares of the plaintiffs over the suit properties. It is also stated that the father of the plaintiffs and defendants No.1 to 3 expired 25 years ago, and their mother also expired in the year 2012. The parents of the plaintiffs had not at all executed any registered documents in respect of the suit properties. After the demise of father of plaintiffs and defendants No.1 to 3, the names of plaintiffs and their mother, and brothers are entered as per M.E. A-1162 as legal heirs of deceased Irappa Hubballi. The plaintiffs and their brothers have become the joint owners and are in joint possession of the suit properties, but the brothers of plaintiffs got deleted the names of the plaintiffs stating that plaintiffs have given consent to delete their names. In fact the plaintiffs have never given any 'wardi' or consent to delete their names, and the deletion of plaintiffs' names from the revenue records is behind their back -7- NC: 2023:KHC-D:13355-DB RFA No.100273 of 2019 without their knowledge. The plaintiffs have not at all given up their right over the property.
(c) It is the case of the plaintiffs that the 'B' Schedule property was taken on lease by Sri. Irappa from income of 'A' schedule landed property. The said Irappa filed Form No.7 before the Land Tribunal, Hubli, occupancy rights were granted in favour of said Irappa and Form No.10 was issued by the Tahasildar, and entry was made as per ME N-9627. The said Irappa also died without executing any testamentary document and hence all the daughters and sons are entitled for equal share in the suit schedule properties. When they demanded to effect partition, the defendants refused to allot share. Hence, the suit.
5. In pursuance of the suit summons, the defendants remained absent and were placed ex parte. -8-
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6. The plaintiffs, in order to prove their case, examined two witnesses as P.W.1 and P.W.2 and got marked three documents as Exs.P.1 to P.3.
7. The Trial Court taking note of the pleadings of the parties and also considering the evidence available on record came to the conclusion that suit schedule properties are the ancestral and joint family properties of plaintiffs and defendants No.1 to 3, and that the plaintiffs were entitled to the relief in part and not as sought for by them and granted the relief of partition granting 1/9th share out of 1/5th share of their father deceased Irappa by metes and bounds in respect of each of the plaintiffs; defendants No.1 to 3 each were granted 1/5th share along with 1/9th share out of 1/5th share of their father deceased Irappa in the suit schedule properties by metes and bounds; and defendants No.4 to 7 together were granted 1/5th share along with 1/9th share out of 1/5th share of deceased Irappa in the suit schedule properties by metes and bounds.
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8. Being aggrieved by the judgment and decree of the Trial Court, the present appeal is filed by the plaintiffs.
9. The learned counsel appearing for the appellant submits that there is no dispute with regard to the relationship between the parties and there is also no dispute with regard to the fact that property belonged original propositus Mallappa and Mallawwa. Learned counsel also submits that the propositus Mallappa was having only daughter i.e., Ningawwa which is also not in dispute.
10. The learned counsel for the appellants contends that both father and mother of the plaintiffs and defendants No.1 to 3 died intestate and had not made any testamentary documents during their life time. He vehemently contends that the Trial Court has committed an error in invoking Section 6 of the Hindu Succession (Amendment) Act, 2005 instead of considering Section 15 and not Section 6 and hence allotment of share would be equal to each son and daughter.
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11. We have heard the learned counsel for the appellants.
12. Learned counsel for the appellants has brought to the notice of this Court the genealogy of the family. It is important to note that in the suit filed by the plaintiffs/appellants for the relief of partition and separate possession claimed equal share, the defendants/respondents did not choose to appear before the trial Court to contest the claim of the plaintiffs. Learned counsel also brought to the notice of this Court that the properties were inherited by Ningawwa through her father Mallappa; that Ningawwa married one Irappa and said Irappa died long back and Ningawwa also died in the year 2012; and such being the case, the property becomes the absolute property of Ningawwa. Though the property mentioned in schedule 'B' to the suit was granted in favour of Irappa, the said Irappa had not executed any testamentary document in favour of any of his children, and when Irappa died intestate, the sons and the
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NC: 2023:KHC-D:13355-DB RFA No.100273 of 2019 daughters are entitled for equal share. The Trial Court committed an error in invoking Section 6 instead of Section 15 since the properties were acquired by Ningawwa through her father and she also died intestate. The fact is that the property of the father is also granted property. Hence, the approach of the Trial Court in allotting the shares to the plaintiff and defendants in respect of the suit schedule properties is erroneous and the same is to be modified holding that plaintiffs No.1 to 5 and defendants No.1 to 3 are entitled to 1/9th share each in the suit schedule properties, and the legal heirs of Mallappa, who died in the year 2012, i.e., defendants No.4, 5, 6 & 7 together are entitled for 1/9th share in the suit schedule properties.
13. In view of the above discussion, we pass the following:
ORDER
i) The appeal is allowed.
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ii) The impugned judgment and decree dated 09.01.2019, passed in O.S. No.155/2018 by the I Additional Senior Civil Judge, Hubballi, is hereby modified.
iii) Plaintiffs No.1 to 5 and defendants No.1 to 3 are entitled to 1/9th each in the suit schedule properties.
iv) Defendants No.4, 5, 6 & 7 together are entitled to 1/9th share in the suit schedule properties.
v) Draw the decree accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
KMS
List No.: 1 Sl No.: 19