Karnataka High Court
Ramesh Sangappa Ragha @ Raghannavar vs Smt. Kushnavva @ Hemalata on 5 October, 2020
Author: Ravi.V.Hosmani
Bench: Ravi.V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 05 T H DAY OF OCTOBER 2020
PRESENT
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
AND
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
R.F.A.No.100274/2017 (PAR/POS)
BETWEEN:
1. RAMESH SANGAPPA RAGHA @ RAGHANNAVAR
AGE: 58 YEARS , OCC: AGRICULTURE,
R/O: MALAPUR-587313,
TALUKA : MUDHOL, DIST: BAGALKO TE.
RACHAPPA SANGAPPA RAGHA @ RAGHANNAVAR
SINCE DECEASED BY HIS LR
2. SMT.MAHANANDA
W/O RACHAPPA RAGHA @ RAGHANNAVAR,
AGE: 27 YEARS , OCC: AGRICULTURE,
R/O: MALAPUR-587313,
TALUKA : MUDHOL, DIST: BAGALKO TE.
... APPELLANTS
(BY SRI MRUTYUNJAY TA TA BANGI, ADVOCATE)
AND
1. SMT. KUSHANAVVA @ HEMALA TA
W/O SOMASHEKHAR BA TTAL,
AGE: 42 YEARS ,
OCC: HOUSEHOLD & AGRICULTU RE,
R/O: MALAPUR-587313,
TALUKA : MUDHOL, DIST: BAGALKO TE,
NOW R/AT: NEAR PRIMARY RO TARY
SCHOOL RANEBENNOUR-581115,
DIST: HAVERI.
2. SMT.YALLAWWA
W/O NINGAPPA KO RADDI,
AGE: 65 YEARS , OCC: HOUSEHOLD,
RFA No.100274/2017
:2:
R/O: NEAR BELAGAVI MARADI PLO TS ON
CANAL ROAD, BELAGALI-587313,
TALUKA : MUDHOL, DIST: BAGALKO TE.
3. KRISHNAPPA VENKAPPA RAGHA
AGE: 61 YEARS , OCC: AGRICULTURE,
R/O: KOLUR-587116, TALUKA: BILA GI,
DIST: BAGALKOTE.
SMT.GANGAWWA W/O LAXMAPPA RAGHA,
SINCE DECEASED BY HER LRS,
4. SMT.YAMANAWWA
W/O BHIMAPPA H AKATI,
AGE: 65 YEARS , OCC: HOUSEHOLD,
R/O: HALAGALI-587313, TALUKA : MU DHOL,
DIST: BAGALKOTE.
5. SMT.SHANTAWWA
W/O BHIMAPPA H OSUR,
AGE: 63 YEARS , OCC: HOUSEHOLD WORK,
R/O: HALAGALI-587313, TALUKA : MU DHOL,
DIST: BAGALKOTE.
6. RAVI S/O BH IMAPPA HAKATI
AGE: 37 YEARS , OCC: AGRICULTURE,
R/O: HALAGALI-587313, TALUKA : MU DHOL,
DIST: BAGALKOTE.
7. LAXMAN RANGAPPA RAGHA
AGE: 53 YEARS , OCC: AGRICULTURE,
R/O: KOLUR, TALU KA: BILAGI,
DIST: BAGALKOTE.
... RESPONDENTS
(BY SRI DINESH M.KULKARNI, ADVOCATE FOR R1;
R2, 3 AND 7 ARE SERVED ;
NO TICE TO R4 TO 6 H ELD SUFFICIENT)
THIS RFA IS FILED UNDER SECTION 96(1)
READ WITH ORDER 41 RULE 1 OF CIVIL
PROCEDURE CODE, 1908, AGAINST THE JUDGMENT
AND DECREE DATED 01.08.2017 PASSED IN
O.S.NO.66/2012 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JU DGE AND JUDICIAL MAGISTRATE
FIRST CLASS, M UDHOL, DECREEING THE SUIT
FILED FOR PARTITION AND SEPARATE POSSESSION
AND ETC.
RFA No.100274/2017
:3:
THIS APPEAL COMING ON FOR A DMISSION
THIS DAY, N.K.SU DHINDRARAO, J., DELIVERED THE
FOLLOWING:
JUDGMENT
The appeal is directed against the judgment and decree passed by the learned Additional Senior Civil Judge and J.M.F.C., Mudhol in O.S.No.66/2012 dated 01.08.2017, wherein the suit of the plaintiff came to be decreed and plaintiff held entitled for 1/4 t h share in the suit schedule properties. A preliminary decree was ordered to be drawn. The defendant Nos.1 and 2(a) have preferred the present appeal against the same.
2. In order to avoid confusion, parties are addressed in accordance with ranks held by them before the trial Court.
3. The substance of the pleadings of the plaintiff is that, plaintiff is the younger sister of the defendant Nos.1 to 3. The parents of the parties are dead and the siblings of the RFA No.100274/2017 :4: legal heirs, they succeeded to the joint family co-parcenary properties.
4. The 'A' schedule properties are ancestral properties to plaintiff and defendants No.1 to 3. They are having 1/4 t h share in the same. Insofar as properties at Sl.No.1 to 4 and Sl.No.5 to 9 of the 'A' schedule properties are exclusively belonging to their family. The properties at Sl.No.1 to 5 are situated at Kolur, Taluk Bilagi. Sl.No.6 to 9 are situated at Malapur, Taluk Mudhol.
5. The plaintiff claims that herself and her siblings including plaintiff are in actual possession and enjoyment of 'A' schedule properties. She also alleges that defendant No.1 filed a collusive suit against defendant No.1 and their father before the Senior Civil Judge Court and wherein compromise decree was obtained on 24.04.2010. The plaintiff is not party in the suit and compromise was RFA No.100274/2017 :5: entered into in collusion keeping the plaintiff in darkness. Thus, the plaintiff claim that she is not bound by the collusive understanding in the said suit. Insofar as the family arrangements are concerned, it is stated that in the family arrangements in between Sangappa Ragha and Satteppa, Satteppa later gave up his share in Sy.No.66 in favour of Sangappa Ragha and accordingly mutation entry No.2086 dated 22.04.1994 came to be certified. Subsequently, Sangappa Ragha effected partition between himself and the two sons i.e. defendant No.1 and 2. In partition R.S.No.66/2 measuring 3 acres 20 guntas fell to the share of defendant No.2; R.S.No.66/4 measuring 3 acres 20 guntas fell to the share of defendant No.1; R.S.No.66/3 to the extent of 3 acres 21 guntas fell to the share of father of Sangappa Ragha. The land bearing R.S.No.66/5 was held by their father Sangappa Ragha was partitioned between RFA No.100274/2017 :6: defendant No.1 and 2. In the said way, it is stated that defendants are the owners of the said survey number. In these properties, plaintiff nor the defendant No.3 have any right over the said properties.
6. It is also contended that the marriage of the plaintiff took place 25 years back and that of the defendant 35 years back and they are residing in their respective family. At the time of marriage, sufficient money was spent; golden ornaments were given to them towards their share. As such, plaintiff and defendant No.3 seized to be member of the joint family to claim right over joint family properties. It was also contended by the defendants that O.S.No.22/2010 before the Senior Civil Judge, Jamkhandi sitting at Mudhol was filed for partition, which ended in compromise on 24.04.2010. The properties were shared in accordance with the terms of compromise.
RFA No.100274/2017:7:
7. It is necessary to state that at this juncture it is the said compromise decree which plaintiff states to be collusive obtained behind her back and not binding on her. The learned trial Judge was accommodated with oral evidence PW1 and PW2 and documents as Exs.P1 to P12 so also DW1 to DW3 and documents as per Exs.D1 to D19.
8. The issues and additional issues were framed, which reads as under:
1. Whether plaintiff proves that, she and defendant are joint family members and suit properties are joint family properties of plaintiff and defendants as contended in the plaint?
2. Whether plaintiff further proves that, she is in joint possession of the suit properties along with defendants as contended in plaint?RFA No.100274/2017 :8: 3. Whether defendant No.1 and 2
proves that, suit of the plaintiff is time barred?
4. Whether plaintiff proves that, she has got 1/4 t h share in the suit properties?
5. Whether the plaintiff is entitled for the reliefs sought for?
6. What decree or order?
Additional issues:
1. Whether the suit properties are property described?
2. Whether defendant No.3 proves that, defendant No.1 and 2 are owners of lands shown at Sl.No.6 to 9 as contended in para 11 of his written statement?
3. Whether the suit of plaintiff is not maintainable in view of compromise decree passed on 24.04.2010?RFA No.100274/2017 :9:
4. Whether suit of plaintiff is in time?
9. The suit came to be decreed on 01.08.2017.
10. Learned counsel Sri Mrutyunjay Tata Bangi submits that the judgment and decree passed by the learned trial Judge is far away from legalities and probabilities. The share given to plaintiff much against the Section 6
(a), (b), (c) and Section 24 of the Hindu Succession Act and Section 2 of the Land Reforms Act. Learned counsel further submits that the judgment and decree goes away from the norms of the joint family properties. The share is recognized and granted to the defendants much against the principles of institution of joint family and learned trial Court could not have treated the plaintiff as a full pledged member of joint family properties. The landed property in Item Nos.3 and 4 are those which are exclusively granted to the RFA No.100274/2017 : 10 : exclusion of the plaintiff. Learned counsel would further submit that granting of property by the Land Reforms is not disputed in respect of Item No.3 and 4 of the joint family property. It was also submitted that the definition of family as per Section 2(12) of the Land Reforms Act clearly and unequivocally exposes a married daughter, she could not have been recognized as a member or full pledged co- parcenary for the purpose of joint family for entitling a share. Learned counsel in support of his submissions relied on the following decisions.
1. ILR 2013 KAR 6202;
2. 2017(4) Kar.L.J. 561 (DB)
11. Sri Dinesh M.Kulkarni, learned counsel appearing for plaintiff/respondent No.1 would submit that the rights vested with a married daughter are clearly identified and clearly exist and they are entitled in the same footing to that of a son, there cannot be any RFA No.100274/2017 : 11 : discrimination. Learned counsel would further submit that the said Item Nos.3 and 4 of properties are concerned, they are admitted to be granted properties. Insofar as the suit schedule properties are concerned, they consist of totally 9 items of properties. Among which Item Nos.3 and 4 are those properties for which the parties are at issue. Insofar as other properties are concerned, they are not yet dispute. Plaintiff claims that the defendant Nos.1 and 3 had collusive understanding among them in pursuance for which a suit for partition is filed in O.S.No.66/2012 on the file of Additional Senior Civil Judge and J.M.F.C., Mudhol and the matter obviously compromised them. However, the plaintiffs are not parties. Needless to observe when once the plaintiffs are not parties to a suit, they are not bound by outcome. However, the matter has to be adjudicated basing on their pre-existing rights in the suit property, more particularly in a RFA No.100274/2017 : 12 : suit for partition like the present. Learned counsel for the defendant would submit that the definition of family excluded to plaintiff. Family has defined under Section 2(12) of the Land Reforms Act excluded the plaintiff. In this connection, it is necessary to reproduce Section 2(12) of the Land Reforms Act.
"f amily" means, -
(a) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any;
(b) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters;
(c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons RFA No.100274/2017 : 13 : and unmarried daughters, whether in his custody or not;
and
(d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters;
12. It is not necessary to mention that the treatment of family for a moment for the purpose of provisions made relating to Land Reforms Act, the said decision applies. So-far as the matter of succession or inheritance for a member of a joint family, the provisions of Hindu Succession Act by it Sections 6, 8 or 15 as the case may be, it is the rights have to be adjudicated according to specific statute for which the parties are governed.
13. Learned counsel Sri.Mrutyunjay Tata Bangi, relies on the following citations :
(1) ILR 2013 KAR 6202 in the case of Nimbavva & Others vs. Channaveeraya & others.RFA No.100274/2017 : 14 :
(2) 2017(4) Kar.L.J.561 (DB) in the case of Prakash Bharmu Chandgade vs. Sou.Suvarna Sikandar Kane and Others.
14. Insofar as for the purposes of grant of property in response to Form No.7, the applicability of land reform law applies, but when once the property enters to a family led by the eldest member and consisting of other members, it becomes the property belonging of the joint family and insofar as the rights of a daughter is concerned, it is no doubt it is erstwhile Section 6, thereafter 6(a), (b) and (c) through amendment of the year 2005 dated 09.09.2005. We also see the subsequent to the amendment; the principles underline Sections 6(a), (b) and (c) are interpreted by the Hon'ble Apex Court including the Judgment of this Court. Insofar as the recent judgment is by the Hon'ble Apex Court in the case of Vineeta Sharma v. Rakesh Sharma and others, RFA No.100274/2017 : 15 : reported in AIR 2020 SC 3717. Insofar as the applicability of the said judgment is concerned, which is to be noted that when once statute is interpreted as in the case of 'Vineeta Sharma' it is entitled to all enactment in other words meaning of a particular section is interpreted how to be read and interpreted. Learned counsel for plaintiff Sri.Dinesh M.Kulkarni, would draw our attention to the following decision in the case of Sri Arvind S/o. Narasimha Kamat and another vs. Smt.Sunanda W/o.Janardhan Shanbhag and others, R.F.A.No.100149 of 2014 (PAR/POS) disposed of on 13.01.2020 and relies upon paragraph No.24.
15. Thus, under the principles applicable to Mitakshara, joint family being fortified by the decisions stated above, married daughter for the moment cannot be excluded from the purview of benefits of succession to RFA No.100274/2017 : 16 : the property by far with the brothers. Insofar as grant of land is concerned, it is not disputed that originally the suit schedule Item Nos.3 and 4 were came to be granted to the father of the plaintiff and defendant. However, during the division, the properties fell to the share of the family of the plaintiff and defendant led by their father. Now the question that arises is, whether the grant of land by land reforms would enure to the benefit of a particular person to whom particular property is granted or enure to the benefit of original owner. In terms of the facts of the case, it cannot be forgotten for a moment that the property was granted to the name of uncle and after division of the property, it fell to the basket of the joint family. For a moment, a name of the properties in the family itself is made clear that it was meant for joint family. Accordingly, it was partitioned between the family members RFA No.100274/2017 : 17 : irrespective of the grant in whose names it was granted. Even otherwise the grant when made in the name of a particular person of the family that has to be enure to the benefit of the family.
16. In overall facts and circumstances, for a moment, there is no further discussion regarding the nature of Item Nos.3 and 4 of the suit schedule and which are belonging to joint family and insofar as status of a daughter is concerned, it cannot be ruled out for a moment that the death of the father or other factors can prevent in the settled position and it is made clear that she is a member of joint family, at for with males. Under such circumstances, the contention of the appellant that the plaintiff excluded from the joint family for the purpose of partition cannot be accepted. In the facts and circumstances of the case, it clearly seen that a daughter/plaintiff is equally entitled for RFA No.100274/2017 : 18 : 1/4 t h share. Under the facts and circumstances or in law, we find that there are no infirmities or illegalities to drive us to continue further proceedings to be continued. The matter fails. Accordingly, appeal is rejected. No order as to costs.
SD/-
JUDGE SD/-
JUDGE CL K/ CK K