Karnataka High Court
Aziz Patel S/O Dastagir Patel vs Siddamma And Ors on 10 November, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.200270/2021 (PAR/SP)
BETWEEN
AZIZ PATEL S/O LATE DASTAGIR PATEL
AGE: 37 YEARS, OCC AGRICULTURE
R/O VILLAGE KADANAL
TQ. AND.DIST. KALABURAGI
...APPELLANTS
(BY GANESH DESHPANDE, ADVOCATE)
AND
1. SIDDAMMA W/O HALLAPPA
AGE: 67 YEARS, OCC: HOUSEHOLD AND AGRICULTURE
R/O GOBBUR, TQ AFZALPUR
DIST KALABURAGI
PRESENTLY RESIDING AT KONA SIRASAGI
TALUKA JEWARGI
2. SHIVANAND S/O RAMANNA TALWAR
AGE: 52 YEARS, OCC: AGRI
R/O GOBBUR (B) VILLAGE, TQ. AFZALPUR
DIST. KALABURAGI
3. BHIMANNA S/O RAMANNA TALWAR
AGE: 47 YEARS, OCC: AGRI
R/O GOBBUR (B) VILLAGE, TQ. AFZALPUR
DIST. KALABURAGI
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4. SMT. BHIMBAI W/O RAMANNA
AGE: 70 YEARS, OCC: HOUSEHOLD
R/O GOBBUR (B) VILLAGE, TQ. AFZALPUR
DIST. KALABURAGI
5. SIDAPPA S/O RAMANNA TALWAR
AGE: 34 YEARS, OCC: AGRI
R/O GOBBUR (B) VILLAGE, TQ. AFZALPUR
DIST. KALABURAGI
6. BEEBAN BEE W/O LATE DASTAGIR PATEL
AGE: 78 YEARS, OCC: HOUSEHOLD
R/O KADNAL VILLAGE
TQ. AND DIST. KALABURAGI
7. TAHERA BEGUM W/O KHAJA PATEL
AGE: 58 YEARS, OCC: HOUSEHOLD
R/O YAKDUMIYAN CHAVAL
OPP: HEAD POST OFFICE, KALABURAGI
8. MAHEBOOB PATEL S/O DASTAGIR PATEL
AGE: 55 YEARS, OCC: DRIVER
R/O KADNAL VILLAGE
TQ. AND DIST. KALABURAGI
9. MADINA BEGUM W/O HAJI PATEL
AGE: 45 YEARS, OCC: HOUSEHOLD
R/O FIROZABAD VILLAGE
TQ. AND DIST. KALABURAGI
10. SHAHNAZ BEGUM W/O RUKUM PATEL
AGE: 44 YEARS, OCC: HOUSEHOLD
R/O RANAJGI VILLAGE, TQ. JEWARGI
DIST. KALABURAGI
11. SHAKEERA BEGUM W/O OSMAN PATEL
AGE: 41 YEARS, OCC: HOUSEHOLD
R/O MADINA COLONY, KALABURAGI
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12. FARIDA BEGUM W/O GOUSE PATEL
AGE: 39 YEARS, OCC: HOUSEHOLD
R/O MADINA COLONY, KALABURAGI
13. FAROOQ S/O DASTAGIR PATEL
AGE: 35 YEARS, OCC: DRIVER
R/O MADINA COLONY, KALABURAGI
RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC PRAYING TO ALLOW THIS APPEAL
AND SET ASIDE THE JUDGMENT AND DECREE DATED
26.11.2020 PASSED IN R.A.NO.35/2018 ON THE FILE OF I
ADDITIONAL DISTRICT JUDGE, KALABURAGI CONFIRMING
THE JUDGMENT AND DECREE DATED 27.01.2018 PASSED
IN O.S.NO.152/2010 ON THE FILE OF SENIOR CIVIL
JUDGE, AFZALPUR.
THIS APPEAL IS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by defendant No.13-purchaser who has questioned the concurrent findings of the Courts below, wherein the plaintiff's suit for partition is decreed granting ½ share in three agricultural lands.
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2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.
3. The family tree is as under:
Bheemanna Basappa(died) Shivappa (died) Sangawwa (Wife) (died) Dundawwa (Wife) (died) Ramanna (son) Siddamma (Daughter) Bheemanna Bhimbai Shivanand Siddappa
4. The plaintiff represents the branch of Shivappa. The propositus Bheemanna had two sons by name Basappa and Shivappa. Defendant Nos.1 to 4 represents the branch of Basappa. The plaintiff contended that suit schedule properties are joint family ancestral properties. The plaintiffs has alleged 5 that defendant No.2 has alienated 2 acres 20 guntas in Sy.No.54/2 in favour of defendant No.5 through registered sale deed dated 31.03.2003 and further 5 acres in Sy.No.54/2 is sold in favour of father of defendant No.13 through registered sale deed dated 24.18.1995. The plaintiff claims that these alienations made by defendant No.2 are not binding on her legitimate share.
5. The plaintiff to substantiate her claim has let in oral and documentary evidence. Defendant No.13 has also examined himself as D.W.3. The defendants have also let in rebuttal documentary evidence vide Ex.D.1 to Ex.D.45. The defendant No.13 claimed that he is the bonafide purchaser.
6. The trial Court having assessed oral and documentary evidence answered issue No.1 partly in the affirmative and held that item Nos.1 to 3 are 6 ancestral properties. However, item No.4 which is a residential house was held to be self acquired property. The Trial Court held that item Nos.1 to 3 are joint family ancestral properties. Issue Nos.2 and 3 which are against the purchasers were held against them by holding that they are not the bonafide purchaser.
7. Defendant No.5 and 13 together filed an appeal in R.A.No.35/2018. The appellate Court has independently assessed the oral and documentary evidence. The appellate Court having examined the record of rights which are produced at Exs.P.2 to P.9 found that the properties were original standing in the name of plaintiff's father. However, after his death, the defendants have managed to get thei names entered, while plaintiff's name was not mutated. 7
8. The appellate Court has also taken note of the fact that the plaintiff has suffered a decree in O.S.No.198/1996, wherein plaintiff has sought relief of declaration and injunction. In the said suit the plaintiff was asserting that she is the absolute owner, however, the said suit was dismissed and confirmed by the Court in RSA No.786/2006. The appellate Court taking cognizance of the para 8 of the judgment rendered by this Court, found that this Court while dismissing the second appeal filed by the plaintiff reserved liberty to seek partition in the property. Based on the liberty, it appears plaintiff has filed the present suit seeking relief of partition and separate possession. The appellate Court having independently assessed the oral and documentary evidence concurred with the findings and conclusions recorded by the trial Court. The appellate Court referring to the revenue records, held that item Nos.1 to 3 which are 8 agricultural lands are joint family ancestral properties and plaintiff's father had ½ share in suit schedule properties and the said ½ share would devolve upon the plaintiff who is the only daughter and she would inherit to an extent of 1/2 in the ancestral properties i.e., item Nos.1 to 3. Consequently, dismissed the appeal. These concurrent findings are under challenge.
9. Heard the learned counsel appearing for defendant No.13. Defendant No.5 who had joined defendant No.13 and had preferred appeal has not chosen to question the decrees rendered by the Courts below. Perused the concurrent findings of the Courts below.
10. The material on record clearly indicates that the suit schedule properties are joint family ancestral properties. The plaintiff's father Shivappa 9 and Basappa being coparceners had ½ share in the suit item Nos.1 to 3. After death of Shivappa, the present plaintiff being the only legal heir would succeed not under Section 8 but under Section 6 of the Hindu Succession Act in view of amendment to Section 6 of the Hindu Succession Act 1956. Therefore, Sidamma as a coparcener who represents the branch of Shivappa is entitled for ½ share. Both the Courts referring to the evidence on record have rightly come to the conclusion that the plaintiff is entitled for ½ share and that suit schedule properties are joint family ancestral properties. Both the Courts were justified in granting ½ share in the suit properties.
11. If defendant No.2 has ventured into alienating joint family ancestral properties, it is a trite law that the plaintiff who is not party to this alienation, her right is not affected by alienation and 10 the sale made by defendant No.2 in favour of defendant Nos.5 and 13 would not bind the plaintiff. Defendant No.13 whose father purchased an undivided share in an ancestral property has to work out equities in final decree proceedings. The sale deed obtained by the father of defendant No.13 is valid to the extent of defendant No.2's share in the suit schedule property. It is always open for defendant No.13 to work out his equitable rights in the final decree proceedings. No substantial question of law arises for consideration. Accordingly, the appeal is dismissed.
Sd/-
JUDGE RSP