Karnataka High Court
Shri. Prakash S/O. Basavaprabhu ... vs Smt. Shalini W/O. Mallikarjun Chinivar on 31 March, 2022
Bench: H.T.Narendra Prasad, Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 31ST DAY OF MARCH 2022
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
R.F.A.NO.100092/2021 (PAR/POS)
BETWEEN:
SHRI PRAKASH S/O BASAVAPRABHU CHARATE,
AGE: 70 YEARS, OCC. AGRICULTURE,
R/O BELLAD BAGEWADI-591305,
TQ: HUKKERI, DIST. BELAGAVI.
... APPELLANT
(BY SRI SMT.SUNANDA P.PATIL, ADV.)
AND :
1. SMT.SHALINI W/O MALLIKARJUN CHINIVAR,
AGE: 61 YEARS, OCC: HOUSEHOLD,
R/O CCB NO.21, BASAVA COLONY
BELAGAVI-590010, TALUK & DIST: BELAGAVI.
2. SMT.SUNITA W/O SANGAMESH AJJAMPURSHETRU
AGE: 57 YEARS, OCC. HOUSEHOLD,
R/O. DOOR NO.635, P.J.EXTENSION,
7TH MAIN, 7TH CROSS, DAVANAGERE-577001.
3. SMT.ROOPA W/O SHANKAR NANDENNAVAR,
AGE 48 YEARS, OCC. HOUSEHOLD,
R/O P.NO.47, MAHABALESHWAR NAGAR,
BELAGAVI-591108, TALUK & DIST: BELAGAVI.
... RESPONDENTS
(BY SHREEVATSA S.HEGDE & SOURABH HEGDE ADVTS)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
READ WITH ORDER XLI RULE 1 OF THE CODE OF CIVIL
PROCEDURE, PRAYING THIS COURT TO SET ASIDE THE JUDGMENT
AND DECREE DATED 23.04.2021 PASSED IN O.S.NO.130/2018 ON
THE FILE OF THE SENIOR CIVIL JUDGE, HUKKERI, DECREEING THE
SUIT FILED FOR PARTITION, SEPARATE POSSESSION AND
INJUNCTION.
2
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
H.T.NARENDRA PRASAD, J DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the defendant under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated 23.04.2021 passed in O.S.No.130/2018 by the Senior Civil Judge Hukkeri ("the Trial Court" for short), whereby the Trial Court has granted 1/4th share each to the plaintiffs and defendant in the suit schedule properties.
2. For the sake of convenience, parties herein are referred with the original ranks occupied by them before the Trial Court.
3. The case of the plaintiffs is that one Sri Basavaprabhu is the propositus. Plaintiffs are the daughters and defendant is the son of said Sri Basavaprabhu. The suit schedule properties are the joint family properties. Since there was no partition by metes and bounds, plaintiffs requested the defendant to effect 3 partition of the suit schedule properties. The defendant has postponed to effect partition on one or the other pretext. Hence, the plaintiffs have filed a suit for partition and separate possession.
4. On service of summons, defendant appeared before the Trial Court through his counsel and filed written statement. He has admitted the relationship between the parties, death of the propositus Sri Basavaprabhu on 09.03.1995 and death of their mother Smt.Anusuya on 30.06.2017. He has contended that at the time of death of their mother Smt.Anusuya there was 30 tolas of gold with her, the plaintiffs colluding with each other have taken all the golden ornaments of their mother. The said 30 tolas of gold ornaments are not included in the suit schedule properties as the same is movable property of their family. Hence, the suit for partial partition is not maintainable.
5. On the basis of pleadings of the parties, the Trial Court has framed the following issues: 4
"1. Whether the plaintiffs prove that themselves and the defendant constitute Hindu Undivided family?
2. Whether the plaintiffs further proves that the suit schedule properties are their ancestral as well as joint family properties?
3. Whether the defendant proves that all their family properties not brought in common hotec-potch thus, the suit for partial partition, not maintainable?
4. Whether the defendant further proves that the plaintiffs were relinquished their right in his favour as contended in para No.8 of his written statement?
5. Whether the plaintiffs are entitled for their legitimate share in the suit schedule properties by metes and bounds?
6. What order or decree?
6. To prove the case of the plaintiffs, plaintiff No.3 herself examined as PW.1 and got marked 9 documents as Exs.P.1 to P.9. Defendant No.1 himself examined as DW.1 and other two witnesses are 5 examined as DWs.2 and 3 and got marked 12 documents as Exs.D.1 to D.12.
7. On appreciation of oral and documentary evidence on record, the Trial Court has answered issue Nos.1, 2 and 5 in the affirmative and negatived issue Nos.3 & 4. Accordingly the Trial Court has decreed the suit of the plaintiffs by granting 1/4th share to each of the plaintiffs and defendant in the suit schedule properties. Being aggrieved by the same, the defendant filed this appeal.
8. Smt.Sunanda P.Patil learned counsel appearing for the appellant has contended that, at the time of death of their mother Smt.Anusuya, she had 30 tolas of gold ornaments and other bank deposits, the said movable properties i.e., 30 tolas of gold and bank deposits have not been included in the suit schedule properties. Hence the suit for partial partition is not tenable. She further contended that since there was an earlier partition, the suit is not maintainable. 6
9. Per contra learned counsel Sri Sourabh Hedge appearing for respondents has contended that there was no partition earlier of any kind. The defendant has failed to prove that there was a partition among the family members and he has also failed to prove that their mother Smt.Anusuya had 30 tolas of gold and fixed deposit in the Bank. The Trial Court after considering all these aspects has rightly decreed the suit of the plaintiffs. Hence, he prays for dismissal of the appeal.
10. Heard learned counsel appearing for the parties and perused the appeal papers.
11. Having heard the arguments, the following point would arise for our consideration.
"Whether the judgment and decree passed by the Trial Court is perverse, erroneous and arbitrary under the facts and circumstances of the case?"
12. It is not in dispute that, Sri Basavaprabhu was the propositor of the family and Smt.Anusuya was his 7 wife. The plaintiffs are the daughters and the defendant is the son of Sri Basavaprabhu and Smt.Anusuya. It is also not in dispute that, the suit schedule properties are joint family properties. It is also not in dispute that Basavaprabhu died on 09.03.1995 and his wife Smt.Anusuya died on 30.06.2017. The only contention raised by the defendant is that, the mother of plaintiffs and defendant i.e., Smt.Anusuya had 30 tolas of gold with her and the amount deposited in the Bank and post office. Except making the said averments in the written statement, no documents have been produced to prove the same and also not filed any application to include such properties. In respect of earlier partition is concerned, no documents have been produced to prove the same. Since the defendant has failed to prove the same, the Trial Court has rightly answered issue Nos.3 & 4 in the negative. The Trial Court after considering the evidence of the parties and the materials available on record has rightly decreed the suit of the plaintiffs by 8 allotting 1/4th share each to the plaintiffs and defendant in the suit schedule property.
13. When the statute itself has given right to the daughters by virtue of amendment to Section 6 of the Hindu Succession (Amendment) Act, 2005 and in the light of dictum of the Hon'ble Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma & others reported in AIR 2020 SC 3717, the Trial Court is justified in granting a decree. Therefore, there is no error in the judgment and decree passed by the trial Court. Hence, the appeal being devoid of merit is accordingly dismissed.
14. In view of the dismissal of the appeal, application in I.A.No.1/2021 does not survive for consideration and the same stands disposed off.
Sd/-
JUDGE Sd/-
EM JUDGE