Karnataka High Court
Basappa S/O Dyamanagouda Pujar @ ... vs Ambamma D/O Timmangouda Pujar @ Hanumar on 16 January, 2024
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
& RSA NO. 5419/2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
REGULAR SECOND APPEAL NO. 5954/2010
C/W
REGULAR SECOND APPEAL NO. 5418/2010
AND
REGULAR SECOND APPEAL NO. 5419/2010
IN RSA NO. 5954/2010
BETWEEN:
MANJANNA
E 1. BASAPPA
S/O DYAMANAGOUDA PUJAR @ HANUMAR
Digitally signed
by MANJANNA E MAJOR, OCC: AGRIL
Date: 2024.01.24
15:45:38 +0530
2. GURAPPA
S/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: AGRIL
BOTH ARE R/O LEBAGERI VILLAGE
KOPPAL TALUK & DISTRICT - 583 231.
...APPELLANTS
(BY SRI. SANTOSH B MALLIGAWAD., ADVOCATE FOR
SRI. Y. LAKSHMIKANT REDDY., ADVOCATE)
AND:
SMT. LAXMAWWA
W/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: HOUSEHOLD
R/O LEBAGERI VILLAGE TALUK
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
& RSA NO. 5419/2010
KOPPAL DISTRICT-583 231.
...RESPONDENT
(BY SRI. SABEEL AHMED., ADVOCATE FOR
SRI. A. S. PATIL., ADVOCATE)
***
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC PRAYING AGAINST THE JUDGMENT &
DECREE DATED 05.10.2009 PASSED IN R.A.NO.46/2004 ON
THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I
AT KOPPAL ALLOWING THE APPEAL, FILED AGAINST THE
JUDGMENT DATED 13.09.2000 AND THE DECREE PASSED IN
O.S.NO.80/96 ON THE FILE OF THE CIVIL JUDGE (JR. DN)
KOPPAL, DECREEING THE SUIT FILED FOR DECLARATION AND
INJUNCTION.
IN RSA NO. 5418/2010
BETWEEN:
1. BASAPPA
S/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: AGRIL
2. GURAPPA
S/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: AGRIL
BOTH ARE R/O LEBAGERI VILLAGE
KOPPAL TALUK & DISTRICT - 583 231.
...APPELLANTS
(BY SRI. SANTOSH B MALLIGAWAD., ADVOCATE FOR
SRI. Y. LAKSHMIKANT REDDY., ADVOCATE)
AND:
SMT. AMBAMMA
D/O TIMMANGOUDA PUJAR @ HANUMAR
MAJOR, OCC: NIL
R/O LEBAGERI VILLAGE
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
& RSA NO. 5419/2010
KOPPAL TALUK & DISTRICT-583 231.
...RESPONDENT
(BY SRI. SABEEL AHMED., ADVOCATE FOR
SRI. A. S. PATIL., ADVOCATE)
***
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC PRAYING AGAINST THE JUDGMENT &
DECREE DATED 05.10.2009 PASSED IN R.A.NO.08/2002 ON
THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I
AT KOPPAL ALLOWING THE APPEAL, FILED AGAINST THE
JUDGMENT DATED 18.06.2002 AND THE DECREE PASSED IN
O.S. NO. 07/1997 ON THE FILE OF THE CIVIL JUDGE (SR. DN)
KOPPAL, DECREEING THE SUIT FILED FOR PARTITION AND
POSSESSION.
IN RSA NO. 5419/2010
BETWEEN:
1. BASAPPA
S/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: AGRIL
2. GURAPPA
S/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: AGRIL
BOTH ARE R/O LEBAGERI VILLAGE
KOPPAL TALUK & DISTRICT - 583 231.
...APPELLANTS
(BY SRI. SANTOSH B MALLIGAWAD., ADVOCATE FOR
SRI. Y. LAKSHMIKANT REDDY., ADVOCATE)
AND:
1. SMT. LAXMAWWA
W/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: HOUSEHOLD
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
& RSA NO. 5419/2010
2. SRI. RAMANNA
S/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: AGRIL
3. SRI. HANUMAPPA
S/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: AGRIL
4. SRI. YALLAPPA
S/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: AGRIL
5. SRI. JAGADEESH
S/O DYAMANAGOUDA PUJAR @ HANUMAR
MAJOR, OCC: AGRIL
ALL ARE R/O LEBAGERI VILLAGE
KOPPAL TALUK AND DISTRICT.
...RESPONDENTS
(BY SRI. SABEEL AHMED., ADVOCATE FOR
SRI. A. S. PATIL., ADVOCATE)
***
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC PRAYING AGAINST THE JUDGMENT &
DECREE DATED 05.10.2009 PASSED IN R.A. NO. 07/2002 ON
THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I
AT KOPPAL PARTLY ALLOWING THE APPEAL, FILED AGAINST
THE JUDGMENT DATED 18.06.2002 AND THE DECREE PASSED
IN O.S. NO. 07/1997 ON THE FILE OF THE CIVIL JUDGE (SR.
DN) KOPPAL, DECREEING THE SUIT FILED FOR PARTITION AND
POSSESSION.
THESE REGULAR SECOND APPEALS COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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RSA No. 5954 OF 2010
C/W RSA NO. 5418 OF 2010
& RSA NO. 5419/2010
JUDGMENT
Appellants/plaintiffs have filed RSA No.5954/2010 challenging the judgment of First Appellate Court on the file of Fast Track Court-I in R.A.No.46/2004 dated 5.10.2009 wherein the judgment and decree of Trial Court on the file of Civil Judge (Jr.Dn.) Koppal in O.S.No.80/1996 in granting the relief of declaration and permanent injunction came to be modified only to the extent of item Nos.1 and 2 of the schedule property.
Appellants/plaintiffs have filed RSA No.5418/2010 challenging the judgment and decree of First Appellate Court on the file of Fast Track - I in R.A.No.8/2002 dated 5.10.2009 in O.S.No.7/1997 on the file of Civil Judge (Sr.Dn.) Koppal for refusal of partition and separate possession with respect to schedule properties No.1 to 3 properties claimed by defendant No.6.
Appellants/plaintiffs have filed RSA No.5419/2010 challenging the judgment and decree of First Appellate Court on the file of Fast Track - I in R.A.No.7/2002 dated 5.10.2009 in O.S.No.7/1997 on the file of Civil Judge -6- RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 (Sr.Dn.) Koppal in dismissing the suit with respect to item Nos.14 and 15 of "A" schedule properties.
2. Plaintiff-Laxmavva filed suit O.S.No.80/1996 for the relief of declaration and injunction with respect to item Nos.1, 2 and 4 are the self acquired properties and item Nos.3 and 5 of the schedule are given by her husband for maintenance. Whereas, the plaintiffs being the sons of Hanamavva first wife of their father Dyamannagouda filed O.S.No.7/1997 for the relief of partition and separate possession of schedule "A"to 'C' properties in which the properties claimed by Laxmavva, second wife of Dymannagouda were also included. The defendant No.6 Ambamma in the said suit claimed that Sl.Nos.1 to 3 of the "A"schedule properties are her exclusive properties and she had filed O.S.No.29/1996 which came to be decreed and the same has not been challenged by the defendants of the said suit and the same has attained finality. The plaintiffs in all these appeals are challenging the judgment and decree of the First Appellate Court as -7- RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 referred above and seeking the relief of partition and separate possession of their share in the suit schedule properties out of the properties decreed in favour of Laxmavva and defendant No.6 Ambamma.
3. In view of the fact that all the properties claimed in O.S.No.80/1996 and the properties decreed in favour of defendant No.6 Ambamma are all covered in O.S.No.7/1997, the parties to these appeals are referred with their ranks as assigned in the Trial Court in partition suit in O.S.No.7/1997 for the sake of convenience.
4. The factual matrix leading to the case of plaintiffs in O.S.No.7/1997 can be stated in nutshell to the effect that the propositus of the family one Thimmangouda died leaving behind Dyamangouda and daughter by name Ambamma. The father of the plaintiffs Dyamangouda had two wives Hanamavva and Laxmavva. The plaintiffs are the sons of Hanamavva who is the first wife of their father Dyamangouda. The defendant No.1 Laxmavva is the second wife of Dyamanagouda and defendant No.2 -8- RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 Ramanna, defendant No.3 Hanamappa, defendant No.4 Yellappa and defendant No.5 Jagadish are their sons. The defendant No.6 Ambamma adopted "Jogati" leaving worldly life and as such she is not entitled for any share in the suit properties. The father of plaintiff Dyamangouda during the subsistence of his marriage with Hanamavva has taken second marriage with laxmavva and defendant Nos.2 to 6 are the illegitimate children are not entitled for share in the suit schedule properties. The plaintiffs have requested the defendants for partition and separate possession of their half share in all the suit properties, but they refused for the same. Therefore, the plaintiffs were constrained to institute the suit on hand for the relief of partition and separate possession in all the suit schedule properties.
5. In response to the suit summons, the defendants have appeared through their respective counsel. The defendant No.1 filed the written statement admitting the relationship between the parties to the suit as pleaded in -9- RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 the plaint. The claim of plaintiffs has been specifically denied that they are entitled for partition and separate possession of their share in all the suit schedule properties. It is the case of defendant No.1 that properties at Sl.Nos.12, 14 and 15 of "A"Schedule property and Sl.Nos.1 and 4 of "B" schedule properties are the absolute ownership properties of defendant No.1. The plaintiffs have denied the title of defendant No.1 over the above said properties. Therefore, she has filed O.S.No.80/1996 for the relief of declaration and consequential relief of permanent injunction. The defendant No.6 is the exclusive owner in possession of the properties shown at Sl.Nos.1 to 3, since they have been granted by the Land Tribunal, Koppal in favour of defendant No.6. The defendant No.6 had filed O.S.No.29/1996 on the file of Civil Judge (Jr.Dn.) Koppal and the said suit came to be decreed. The defendants of the said suit have not challenged the said judgment and decree in favour of defendant No.6 and the same has attained finality. The plaintiffs and defendant Nos.2 to 5 have already partitioned their ancestral
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 properties during the year 1980 during the life time of Dyamangouda. The existence of 'C' schedule properties is denied. Therefore, on these grounds prayed for dismissal of the suit.
6. The defendant No.6 has filed written statement contending that genealogy shown by the plaintiffs is incomplete. It is the case of defendant No.6 that she is the younger sister of deceased Dyamangouda and she was given in marriage to Siddlingappa Gollar of Budukanahalli Taluka Ranebennur of Haveri Dist. Occupancy rights in respect of Item Nos.1 to 3 of "A" schedule properties have been granted to this defendant and as such, they are her self acquired properties. She had also filed O.S.No.29/1986 and the suit came to be decreed in her favour. The defendants of the said suit have not challenged the judgment and decree in O.S.29/1996 and the same attained finality. Therefore, on these grounds prayed for dismissal of the suit.
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010
7. The Trial Court on the basis of pleadings of both the parties in O.S.No.80/1996 and O.S.No.7/2002 framed necessary issues. The parties have lead their evidence in both the suits independently. The Trial Court after hearing the arguments of both sides and on appreciation of oral and documentary evidence placed before it, decreed the partition suit declaring that plaintiffs are entitled for three fourth share in "A"and "B" schedule properties and one fourth share to defendant No.6 in schedule "A"and "B" properties.
8. The defendants No.1 to 5 challenged the judgment and decree of the Trial Court in O.S.No.7/1997 before the First Appellate Court in R.A.No.7/2002. Whereas the defendant No.6 Ambavva has challenged the judgment and decree in O.S.No.7/1997 before the First Appellate Court in R.A.No.8/2002 for granting partition and separate possession in item Nos.1 to 3 of schedule "A"properties. The defendants have challenged the judgment and decree in O.S.No.80/1996 before the First Appellate Court in
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 R.A.No.46/2004 in granting the relief of declaration and consequential relief of injunction with respect to the properties claimed in the suit by Laxmavva.
9. The First Appellate Court by common judgment in R.A.Nos.7/2002 and 8/2002 allowed R.A.No.8/2002 and set aside the judgment and decree in respect of items Nos.1 to 3 of "A"schedule properties as against defendant No.6 and the suit of the plaintiffs for the said items came to be dismissed. Whereas, R.A.No.7/2002 was partly allowed and the decree granted by the Trial Court with respect of items No.14 and 15 of "A" schedule properties came to be set aside and plaintiffs are held to be entitled for 7/9th share in items Nos.4 to 13 of "A" schedule properties and items Nos.1 to 4 of "B" schedule properties. The aforementioned judgment and decree of the First Appellate Court in all the appeals referred above has been assailed by the plaintiffs in all these appeals.
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010
10. This Court by order dated 15.2.2018 has framed following substantial question of law common in all these appeals for consideration :
"Whether the First Appellate Court is justified in holding that item Nos. 1 to 3 of schedule A properties (in O.S.No.7/1997) is the individual tenancy holding of defendant No.6 Ambavva and consequently, the other legal heirs of late Thimmanagouda are not entitled to any share in the said properties ?"
11. Heard the arguments of both sides in all the appeals.
12. On careful perusal of pleadings of both parties, oral and documentary evidence placed on record, it would go to show that defendant No.1 Laxmavva filed O.S.No.80/96 against Basappa and Gurappa who are the sons of Hanamavva and Dyamangouda with respect to Sl.Nos.1 to 3 i.e., Sy.No.173 measuring 36 guntas, Sy.No. 174/A measuring 3 acres 36 guntas and Sy.No.121/A measuring 2 acres 22 guntas, so also the house properties VPC No.245/101 and VPC No.119-91-98 (new No.241) for
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 the relief of declaration and consequential relief of injunction claiming that the said properties are her self acquired properties. Agricultural land properties at Sl.Nos.1 to 3 referred above are shown at Sl.Nos.12, 14 and 15 in the partition suit. The house properties are shown at Sl.Nos.1 and 4 of suit schedule "B" properties. The Trial Court by judgment and decree dated 13.9.2000 decreed the suit of Laxmavva holding that she is the absolute owner and in possession of the properties referred to above. Plaintiffs Basappa and Gurappa, who were defendants in the said suit, have challenged the said judgment and decree before the First Appellate Court in R.A.No.46/2004. The First Appellate Court after re- appreciation of evidence partly allowed the appeal and declared that Laxmavva is the absolute owner and in possession of only the land bearing Sy.No.173 measuring 0-36 guntas and Sy.No.174/A measuring 3 acres 36 guntas shown at Sy.Nos.1 and 2 of the schedule and set aside the judgment and decree of the Trial Court with respect to land bearing Sy.No.121/A measuring 2 acres 22
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 guntas and house property VPC No.245/101 and VPC No.119-91-98 (new No.241) shown at Sl.Nos.3 to 5 came to be dismissed. The said judgment and decree of the First Appellate Court has been challenged by Basappa and Gurappa in RSA No.5954/2010 claiming that they have got share in the said properties. The plaintiff Laxmavva has not challenged the rejection of her claim with respect to the property shown at Sl.Nos.3 to 5.
13. Defendant No.6 Ambamma claimed that the land bearing Sy.No.66 measuring 12 acres 16 guntas, Sy.No.67 measuring 4 acres 37 guntas and Sy.No.38 measuring 14 acres 24 guntas shown in Sl.Nos.1 to 3 in the partition suit claimed that the said properties are her self acquired properties and the occupancy rights have been granted in her favour. Defendant No.6 challenged the judgment and decree of the Trial Court in O.S.No.7/1997, in granting the relief of partition and separate possession in those properties also, before the First Appellate Court under R.A.No.8/2002.
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010
14. Defendants No.1 to 5 i.e. Laxmavva and her children challenged the judgment and decree of the Trial Court in O.S.No.7/1997 before the First Appellate Court under R.A.No.7/2002. The First Appellate Court by common judgment in R.A.No.7/2002 and R.A.No.8/2002 by judgment dated 5.10.2009, partly allowed R.A.No.7/2002 by confirming the judgment and decree of the Trial Court with respect to the remaining properties shown in schedule "A"and "B" properties except item Nos.14 and 15 i.e., Sy.No.173 measuring 0.36 guntas and Sy.No.174/A measuring 3 acres 36 guntas and the shares to which the plaintiffs are entitled with defendant No.6 came to be modified. Plaintiffs i.e., Basappa and Gurappa challenged the judgment and decree of the First Appellate Court in RSA No.5419/2010 in rejecting their claim for partition and separate possession of item Nos.14 and 15 of "A" schedule property.
15. The First Appellate Court allowed R.A.No.8/2002 and set aside the judgment and decree of the Trial Court
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 in granting share to the plaintiff with respect to item Nos.1 to 3 of "A"schedule property. The defendants in both the appeals R.A.No.7/2002 and R.A.No.8/2002 have not challenged the decree of the First Appellate Court and also in modifying the share to which plaintiffs and defendants are entitled.
16. Plaintiffs in all three appeals referred above are challenging the dismissal of their claim for partition and separate possession with respect to items Nos.1 to 3 and 14 and 15 in "A" schedule properties claimed by them. The scope of all these three appeals is confined only with respect to judgment of the First Appellate Court in refusing to grant the relief of partition and separate possession with respect to item Nos.1 to 3 and 14 and 15 shown in the "A" schedule properties.
17. Defendant No.1 Laxmavva claims that she is married to Dyamangouda on the death of his first wife Hanamavva. Defendant No.1 also does not dispute that plaintiffs Basappa and Gurappa are the sons of first wife
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 Hanamavva to Dyamangouda. Defendant No.1 Laxmavva has not produced any documents to substantiate her claim that she married Dyamangouda on the death of his first wife Hanamavva. The death extract of Dyamangouda is produced at Ex.P.31 which goes to show that he died on 4.9.1986. The death extract of Hanamavva produced at Ex.P.32 would go to show that Hanamavva died on 12.7.1991. The oral testimony of PW.1 Gurappa, PW.2 Hanumagouda, PW.3 Gattappa, would go to show that Laxmavva married Dyamangouda during the subsistence of his first wife Hanamavva. The evidence of DW.1- Laxmavva and the documents relied by her do not substantiate the claim of Laxmavva that she married Dyamangouda on the death of his first wife Hanamavva. Therefore, contrary to the evidence of PWs. 1 to 3, in the absence of any evidence on record, it will have to be held that Laxmavva is the second wife of Dyamangouda and she has undergone marriage with Dyamangouda during the subsistence of his first marriage with Hanamavva.
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010
18. Defendant No.1 Laxmavva contended that she has purchased the land bearing Sy.No.173 measuring 36 guntas and Sy.No.174/A measuring 3 acres 36 guntas out of her own income under the registered sale deed dated 10.4.1974. Defendant No.1 claims her right over Sy.No.121/A measuring 2 acres 22 guntas as the property given by Dyamangouda for maintenance and the house property shown at Sy.Nos.1 and 4 of the "B" schedule property for the purpose of residence. The First Appellate Court has set aside the judgment and decree of the Trial Court in granting relief of partition with respect of land bearing Sy.No.173 measuring 36 guntas and Sy.No.174/A measuring 3 acres 36 guntas of Lebageri village and remaining 3 properties i.e., Sy.No.121/A measuring 2 acres 26 guntas VPC No.245/101 and VPC No.119-91-98 (new No.41) shown at Sl.Nos.1 and 4 of "B" schedule property came to be confirmed in granting decree for partition in the said properties. The defendants No.1 to 5 have not challenged the said judgment and decree of the
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 First Appellate Court in giving partition and separate possession of plaintiff's share in the said properties.
19. Plaintiffs are claiming their right of share in Sy.No.173 measuring 3 acres 6 guntas, Sy.No.174/A measuring 3 acres 36 guntas which is held to be the self- acquired property of defendant No.1 Laxmavva.
20. It is the burden of plaintiffs to prove that nucleus of joint family fund was utilized for purchasing the property of land bearing No.173 measuring 37 guntas and 174/A measuring 3 acres 36 guntas purchased in the name of defendant No.1 under registered sale deed dated 10.4.1974 vide Ex.D.54. There is no presumption of the said property being the joint family property of plaintiffs and defendants with respect to the property standing in the name of female member of the family. It is for the plaintiffs Basappa and Gurappa to prove that their father Dyamangouda out of the nucleus of joint family property acquired the said properties in the name of his second wife Laxmavva. The plaintiffs except asserting the said fact
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 have produced no documents to prove that their father acquired the said properties out of the nucleus of the joint family properties. In this context of the matter it is useful to refer the latest judgment of the Hon'ble Apex Court in Marabasappa (dead) by LRs and Others vs. Ningappa (dead) by LRs and Others reported in (2011) 9 SCC 451 wherein it has been observed and held in paragraphs (21) and (22) as under :
(21) Section 14 of the Hindu Succession Act, 1956 clearly mandates that any property of a female Hindu is her absolute property and she, therefore, has full ownership. The explanation to sub section (1) further clarifies that a Hindu woman has full ownership over any property that she has acquired on her own or as Stridhana. As a consequence, she may dispose of the same as per her wish, and that the same shall not be treated as a part of the joint Hindu family property.
(22) This Court has time and again held that there is no presumption of joint family property, and there must be some strong evidence in favour of the same. In the case of Appasaheb Chamdgade v.
Devendra Chamdgade and Ors. reported in (2007) 1
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 SCC 521, after examining the decisions of this Court, it was held :
"17. Therefore on survey aforesaid decisions, what emerges is that there is no presumption of a joint Hindu family but on the evidence if it is established that the property was joint Hindu family, and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then the burden shifts to the party alleging self acquisition to establish affirmatively that property was acquired without the aid of joint family property by cogent and necessary evidence".
21. In view of the principles enunciated in the aforementioned judgment of the Hon'ble Apex Court, it is evident that the person who asserts that acquisition of property standing in the name of any member of the family is out of the nucleus of joint family fund, it is for the person who claims right over the property. The plaintiffs have not produced any evidence or documents to prove the fact that their father Dyamangouda purchased the said properties in the name of his second wife Laxmavva out of nucleus of joint family funds. Therefore, the First Appellate Court has rightly rejected the claim of the plaintiffs
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 seeking partition and separate possession and Sl.Nos.14 and 15 of "A" schedule properties i.e. land bearing Sy.No.173 measuring 0.37 guntas, Sy.No.174A measuring 174/A measuring 3 acres 36 guntas.
22. Defendant No.6 Ambamma has claimed that Sl.Nos.1 to 3 of "A" schedule properties i.e., land bearing Sy.No.66 measuring 12 acres 16 guntas, Sy.No.67 measuring 4 acres 37 guntas and Sy.No.38 measuring 14 acres 24 guntas are her self-acquired properties since the same has been granted by the Land Tribunal, Koppal District, Raichur. The order of the Land Tribunal is produced at Ex.D.56 by defendant No.6 and the plaintiffs have also produced the same Land Tribunal order Ex.P.29. In pursuance of the same, occupancy prices has been paid by defendant No.6 Ambavva and accordingly her name has been entered in the records. The document at Ex.P.30 is the mutation entry extract register wherein the name of Dyamangouda only came to be entered with respect to Sy.Nos.22, 256 and 258 as per the order of the Land
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 Tribunal Ex.P.29. The deceased Dyamangouda has not challenged the order of grant of occupancy rights with respect to the properties at Sl.Nos.1 to 3 in favour of defendant No.6 during his life time nor his wife Hanamavva who died on 12.7.1991 Ex.P.32 has challenged the order of the Land Tribunal. It means that deceased Dyamangouda has accepted the grant of occupancy rights with respect to Sy.Nos.66, 67 and 68 in favour of defendant No.6 and land bearing Nos.22, 256, 257 in his favour. The plaintiffs have also not produced any documents to show that the propositus of the family Thimmangouda was the tenant of the said properties and after his death, deceased Dyamangouda and his sister Defendant No.6 Ambavva have inherited the tenancy rights.
22. Defendant No.6 had filed O.S.No.29/1996 for the relief of permanent injunction against Gurappa and others. The said suit came to be decreed vide judgment dated 18.2.1999. The evidence of DW.3 Hanumappa, GPA
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 holder of defendant No.6, would go to show that defendants have filed appeal challenging O.S.No.29/2006 and the same is also dismissed. However, to contradict the said evidence of DW.3, the plaintiffs have not produced any documents to show pendency of any appeal. Therefore, in the absence of any evidence to that effect, it will have to be held that the judgment and decree in O.S.No.29/2006 Exs.P.76 and 77 holds good. The evidence on record would speak to the effect that defendant No.6 was given in marriage with Sidlingappa Gollar and she was offering pooja to Yellamma. According to the plaintiffs also, defendant No.6 adopted Jogiti and renounced the worldly affairs. The plaintiffs have not produced any documents to show as to when defendant No.6 adopted jogiti and renounced worldly life. However, the fact remains that defendant No.6 was offering pooja to Yellamma and in the absence of any evidence on record that she inherited tenancy rights from the propositus Tammangouda, it will have to be held that the said three properties at Sl.Nos.1 to 3 are the granted lands of which
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 occupancy rights have been granted to defendant No.6 and as such they are her self-acquired properties.
23. The First Appellate Court regarding the entitlement of share of parties to the suit, has held that Dyamangouda and plaintiffs Basappa and Gurappa will each get 1/3rd share. Defendant No.1 Laxmavva being the second wife of Dyamangouda will not get any share whereas defendants No.2 to 5 are entitled for share in the 1/3rd share of deceased Dyamangouda and accordingly modified the share to which the plaintiffs and Defendants No.2 to 6 are entitled for partition and separate possession of their shares. The question is as to whether the illegitimate children of Laxmavva and deceased Dyamangouda will get any right of share in the properties of their deceased father Dyamangouda. In this context, it is profitable to refer to the latest judgment of the Hon'ble Apex court in Revanasiddappa and Another vs. Mallikarjun and Others (2023) 10 SCC 1 wherein it has been observed and held in paragraph 61 as under :
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 "61. When a Hindu dies after the commencement of the amending Act of 2005, his interest in the property of a joint Hindu family governed by Mitakshara law has to devolve by testamentary in intestate succession and not by survivorship, as stipulated in sub-section (3) of Section 6. The interest of a Hindu Mitakshara coparcener, for the purpose of sub-section (3) has to be ascertained on the basis that a notional partition has taken place immediately before his death. The share in the property that would have been allotted to the intestate on the basis of such a notional partition is governed by the General Rules of Succession specified in Section 8, the HAS, 1956.
The distribution of the property among the Class I heirs is government by the Rules specified in Section 10. In the distribution inter alia the surviving sons, daughters and mother of the intestate take one share each and likewise the widow (and all the widows together if there was more than one) take one share. In the distribution of the property of the deceased who has died intestate, a child who is recognized as legitimate under sub-section (1) of Section 6 of the HMA, 1955 or under sub-section (2) of Section 16 would be entitled to a share. Since this is the property that would fall to the share of the intestate after notional
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 partition, it belongs to the intestate. Under Section 16(3), a child conferred with legitimacy is entitled to the property of their parents only, and does not have any rights to or in the property of a person other than the parents. Hence, where the deceased has died intestate, the devolution of this property must be among the children- legitimate as well as chose conferred with legitimacy by the legislature under Sections 16(1) and 16(2) of the HMA, 1995. Doing so would not offend or breach the restriction which is specified in sub-section (3) of Section 16." Therefore, in view of the principles enunciated in the aforementioned judgment of the Hon'ble Apex Court, the First Appellate Court has rightly awarded a share to which plaintiffs, defendants Nos.2 to 5 and 6 are entitled and was justified in modifying the judgment and decree of the Trial Court.
24. The Trial Court without considering the material evidence on record and the legal position with regard to the share to which the parties to the suit are entitled has proceeded to decree the suit of the plaintiffs in
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 O.S.No.7/1997 in all the "A" and "B" schedule properties. The First Appellate Court for the reasons recorded in its judgment referred above and taking into consideration the legal position has rightly interfered with the judgment and decree of the Trial Court in setting aside the claim of the plaintiffs for the relief of partition and separate possession with respect to item Nos.1 to 3 and 14, 15 of "A" schedule properties in dismissing the suit of the plaintiffs with respect to the said properties and in granting the relief of partition and separate possession with respect to schedule item Nos.4 to 11, 13 of "A" schedule properties and item Nos.4 to 13 of "A" schedule property and item Nos.1 to 4 of "B" schedule properties. The appellants/plaintiffs in all these appeals have failed to make out any valid and justifiable grounds to interfere with the judgment and decree passed by the First Appellate Court and as a result, the substantial question of law raised in the appeals is answered in the affirmative. Consequently, proceed to pass the following :
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RSA No. 5954 OF 2010 C/W RSA NO. 5418 OF 2010 & RSA NO. 5419/2010 ORDER Appeal filed by the appellants/plaintiffs in RSA No.5954/2010, RSA No.5419/2010 and RSA No.5418/2010 are hereby dismissed as devoid of merits.
The judgment and decree of the First Appellate Court on the file of Fast Track - I, Koppal in R.A.No.7/2002, R.A.No.8/2002 and R.A.No.46/2004 dated 5.10.2009 stands confirmed.
Registry is directed to send back the Trial Court records expeditiously.
Sd/-
JUDGE rs