Karnataka High Court
Dagadu S/O Kherappa Bhairwade, Lrs vs Manikl S/O Shambhu Gawali, Ors on 19 October, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.7138/2008 (PAR)
BETWEEN
1. DAGADU S/O. KHERAPPA BHIRWADE
SINCE DECEASED BY HIS LRS.,
2. SUMITRA W/O. DIGAMBAR LALBONDRE
AGE: 29 YEARS, OCC: H.H.WORK
R/O. MATHAPATI GALLI
BIJAPUR AND PANDHARPUR
3. VANDANA W/O. ANDAMBAR JUMALE
AGE: 27 YEARS, OCC: HOUSEHOLD WORK
4. CHANDA W/O. PANDURANG JUMALE
AGE: 24 YEARS, OCC: H.H.WORK
R/O. PANDHARPUR
5. SAVITRI W/O. AUDAMBAR LALAGONDLE
AGE: 21 YEARS, OCC: H.H.WORK
R/O. PANCHARPUR
6. KHERAPPA S/O. DOGDU BHAIRWADE
AGE: 20 YEARS, OCC: NIL
R/O. PANDHARPUR
7. ASHWINI D/O. DAGADU BHAIRWADE
AGE: 13 YEARS, OCC: NIL
A MINOR BY HER BROTHER APP.No.6
8. JNANESHWAR S/O. KHERAPPA BHAIRWADI
AGE: 60 YEARS, OCC: AGRL.
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R/O. UMADE GALLI
PANDHARPUR
DIST: SOLAPUR (MAHARASHTRA)
...APPELLANTS
(BY SRI UMESH V. MAMADAPUR, ADVOCATE)
AND
1. MANIK S/O. SHAMBU GAWALI
@ DAHINDE, AGE: 70 YEARS
SINCE DECEASED BY HIS LRS.
1A. SMT. RUKMINI W/O. MANI GAWALI
AGE: 70 YEARS,OCC: HOUSEHOLD
R/O. MATHAPATI GALLI
HIBARIBAI HOSPITAL, BIJAPUR
1B. SMT. JAYASHREE W/O. DATTATREYA
BHAGANAGARE, AGE: 48 YEARS
OCC: HOUSEHOD, R/O. MADHAVAR GHAT
PANDHARPUR, DIST: SOLAPUR
MAHARASHTRA STATE
1C. GANGA W/O. RAJU LAKADE
AGE: 40 YEARS, OCC: HOUSEHOLD
R/O. AT MATHAPATIGALLI
GACCHINAMATH OPPOSITE
HIBARIBAI HOSPITAL, BIJAPUR
1D. SANTOSH S/O. MANIK GAWALI
AGE: 32 YEARS, OCC: MILK VENDOR
R/O. MATHAPATIGALLI, GACCHINAMATH
OPPOSITE HIBARIBAI HOSPITAL, BIJAPUR
1E. KASHINATH S/O. MANIK GAWALI
AGE: 28 YEARS, OCC: COOLIE
R/O. MATHAPATIGALLI, GACCHINAMATH
OPPOSITE HIBARIBAI HOSPITAL, BIJAPUR
1F. AMBAGI S/O. MANIK GAWALI
AGE: 25 YEARS, OCC: COOLIE
R/O. MATHAPATIGALLI, GACCHINAMATH
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OPPOSITE HIBARIBAI HOSPITAL, BIJAPUR
2. BHIMA S/O. KASHINATH ZIPHARE
AGE: 33 YEARS, OCC: BUSINESS
R/O. A-1 PAN SHOP
NEAR NILAM BAR, AZAD ROAD
BIJAPUR
3. APPA S/O. KASHINATH ZIPHARE
AGE: 26 YEARS, OCC: BUSINESS
R/O. A-1 PAN SHOP
NEAR NILAM BAR, AZAD ROAD
BIJAPUR
..RESPONDENTS
[BY SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE FOR
R1(B) TO R1(F); R1(B) TO R1(F) ARE TREATED AS LRS.,
OF DECEASED R1(A), R1 & R3 SERVED]
THIS RSA FILED U/S 100 OF CPC PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 18.09.2008 PASSED IN
R.A.NO.4/2003 ON THE FILE OF THE III ADDL. DIST. JUDGE,
BIJAPUR AND FURTHER SET ASIDE THE IMPUGNED JUDGMENT
AND DECREE DATED 19.04.2003 PASSED IN O.S.NO.2/1996 ON
THE FILE OF THE 1ST ADDL. CIVIL JUDGE (JR.DN.), BIJAPUR
AND ALLOW THE APPEAL BY DECREEING THE SAID SUIT FILED
BY THE APPELLANTS.
THIS APPEAL IS COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by unsuccessful plaintiffs questioning the concurrent findings of the Courts below in dismissing the partition suit filed by the plaintiffs.
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2. For the sake of convenience, the parties are referred to as per their ranks before the trial Court.
3. Though the family tree is not furnished, with the assistance of both the counsels on record, this Court has drawn a family tree, which reads as under:
Shambu Sidram Bhagoji Manik Peeraji Ambaji Devakibai Krishnabai (D-1) (P-3) Janatai (P-1) Laxmibai (P-2)
4. The present suit was originally instituted by widow of Sidrama and his daughter, by name Laxmibai. The plaintiffs claim that the suit schedule properties are the joint family ancestral properties and 5 that they are in joint possession and enjoyment. The plaintiffs specifically pleaded that they along with defendants constituted an undivided Hindu Joint Family. It is specifically pleaded that suit schedule properties were originally acquired by father-in-law of plaintiff No.1 namely, Shambu. It is contended that Shambu had five sons and a daughter. It is further pleaded that said propositus died intestate and all his children inherited the suit schedule properties. The plaintiffs have further pleaded that defendant No.1 got his name mutated to the suit land somewhere in the year 1969 and began to manage the suit schedule properties a manager of the family. However, the plaintiffs' grievance is that defendant No.1 started mismanaging the suit properties and was not furnishing the accounts of the income generated from the joint family properties and therefore, plaintiffs requested to effect partition and allot their legitimate 6 shares in the suit schedule properties. It is specifically pleaded that plaintiffs refused to effect partition. Hence, the present suit.
5. Defendant No.1 - Manik on receipt of summons filed written statement and stoutly denied the entire averments made in the plaint. Defendant No.1 claimed that there is already severance in the family in view of partition effected on 04.10.1976. As regard plaintiff No.3 is concerned, defendant No.1 has contended that she has no interest in the suit schedule properties as she received amount in lieu of her share in the suit schedule properties and accordingly, relinquished her share in favour of the male members of the family.
6. The plaintiffs to substantiate their claim let in oral and documentary evidence. Plaintiff No.2A, who is the son of plaintiff No.2 - Laxmibai was 7 examined as PW.1 and adduced documentary evidence vide Exs.P1 to P9 while defendant No.1 - Manik was examined as DW.1 and two independent witnesses have been examined as DW.2 and DW.3. The defendants placed a strong reliance on partition deed which was produced and marked at Ex.D1.
7. The trial Court having assessed the oral and documentary evidence upheld the contention raised by defendant No.1 in regard to plea of prior partition and accordingly, answered issue Nos.1 to 4 in the affirmative. The trial Court held that by producing partition deed executed on 04.10.1976, defendant No.1 has succeeded in establishing that a partition was effected in the family on 04.10.1976.
8. Feeling aggrieved by the judgment and decree of the trial Court, plaintiffs preferred an appeal before the appellate Court. The appellate Court has 8 concurred with the judgment and decree of the trial Court. Feeling aggrieved by the concurred findings of the Courts below, the captioned second appeal is filed by the plaintiffs.
9. This Court vide order dated 25.01.2017 admitted the appeal on the following substantial question of law, which reads as under:
"Whether the Courts below were justified in relying upon the document at Ex.D1 to arrive at a conclusion that through the said document an earlier severance of the joint status of the family has been effected?
10. Heard the learned counsel for the appellants/plaintiffs and learned counsel for respondents/defendants. Perused the concurrent findings of the Courts below. I have also examined the partition deed set up by defendant No.1. 9
11. The controversy between the parties needs to be examined in two folds. Firstly, this Court has to examine as to whether Ex.D1, which is an unregistered partition deed is admissible in evidence and severance can be inferred by relying on Ex.D1. Secondly, this Court has to examine as to whether the document vide Ex.D1 is a partition deed or it is a family arrangement between the plaintiffs' branch and defendants branch.
12. On examination of Ex.D1, this Court would find that the recitals in the document clearly indicate that under the document, parties have made an arrangement. Even if it is construed as a partition deed, the said document is not admissible as the same is not registered. Even if Ex.D1 is marked, its admissibility has to be tested while considering the case on merits and an unregistered partition deed would not lead to severance in the family and 10 therefore, defendant No.1 cannot assert and claim that there is severance in the family.
13. Now let me consider the stand taken by defendant No.1 in the written statement. The relevant portion of the written statement at paragraph No.4 reads as under:
"4. At the time of partition, the husband of plaintiff No.1 and tather of plaintiff No.2 was suffering from syprosy, and was unable to sign. S0, his wife i.e. plaintiff No.1 also present at that time.
In the said partition, Shri Siddu i.e., the husband of plaintiff No.1 and father of plaintiff No.2 got CTS No.96/17 measuring 267 square yards situated in Ward No.2 of Bijapur and also 1/3rd common share in Sy. No.114 measuring 21 acres 13 guntas assessed at RS 9.31 situated in Mahalbagayat.
In the said partition the defendant got CTS No.96/18 No.96/18 measuring 300 11 square yards situated in ward No.II of Bijapur, and also 1/3rd common share in R.S No.114, measuring 21 acres 13 guntas at RS.9.31 situated in Mahalbagayat Bijapur.
Shri Peeraji S/o. Shambu Gavali got CTS No.96/16 measuring 267 square yards situated in ward No.II of Bijapur, and also 1/3rd common share in RS No.114 measuring 21 acres 13 guntas assessed at RS 9.31 situated in Mahalbagayat Bijapur.
Lastly Shri Ambaji S/o. Shambu Gavali got CTS No.105 measuring 210 square feet situated in ward No.II of Bijapur and also RS No.158/1 measuring 12 acres guntas 3 PK-10 assessed at RS.6- 84 situated in Mahalbagayat Bijapur.
At the time of partition the plaintiff No.3 and another daughter of late Shambu Gavali, did not want any share in the suit properties So, they were given lump-sum amount in lieu of their share, the plaintiff No.3 and Smt.Devkibai W/o. Dattu Naik gave up their right in the suit properties."12
14. If the averments made at paragraph No.4 of the written statement are meticulously examined, the said averments are self explanatory. Ex.D1 is not a partition deed, but, it is a family arrangement. At paragraph No.4, defendant No.1 has clearly pleaded that in terms of the said family arrangement, plaintiffs' branch got 1/3rd common share in Sy.No.114 measuring 21 acres 13 guntas. Similarly, Peeraji was also allotted 1/3rd common share in Survey No.115 while defendant No.1 was also allotted 1/3rd common share in Survey No.115. If these significant details are looked into, this Court is of the view that dehors Ex.D1, the material on record coupled with stand taken by defendant No.1 at paragraph No.4 of the written statement would clearly establish that there is no severance by meets and bounds. The fact that defendant No.1 has specifically pleaded that agricultural land is being 13 shared by allotting 1/3rd share which is to be held commonly does not amount to disruption of status and division in the property.
15. The finding of the trial Court that defendant No.1 has succeeded in establishing that there was a partition on 04.10.1976 is palpably erroneous and perverse. The trial Court has given more emphasis on the evidence of DW.2, who claims to be the witness to the partition deed. To determine as to whether there is severance in the family, the trial Court was required to examine the contents of Ex.D1 and its admissibility and not rely on oral evidence of DW.2. Therefore, trial Court has totally misread the entire evidence on record. The trial Court has also not examined the admissibility of the documents for want of registration. In this regard also, trial Court erred in not properly appreciating Ex.D1. The entire procedure adopted by the trial Court is found to be defective and therefore, 14 this Court is of the view that trial Court erred in properly appreciating the material on record.
16. The appellate Court being a final fact finding authority has also not discharged its duty of an appellate Court. The appellate Court without getting influenced by the reasons and conclusions recorded by the trial Court was required to independently assess the oral and documentary evidence. On going through the judgment of the appellate Court, it is clearly evident that the appellate Court has not applied its mind and there is no proper discussion. The appellate Court has not even analyzed the effect and consequences of documents relied upon by the parties. Therefore, the judgment and decree of the appellate Court also suffers from serious perversity.
17. This Court has culled out the relevant paragraph No.4 of the written statement. If the entire 15 material on record is meticulously examined, this Court is of the view that both the Courts erred in dismissing the suit by holding that there is severance in the family in the year 1976. As rightly pointed out by learned counsel for the appellants/plaintiffs that even as on the date of filing of suit, all the properties were in fact standing in the name of defendant No.1. Therefore, even otherwise dehors Ex.D1, there is no evidence indicating that the said partition of the year 1976 was acted upon. Therefore, the judgment and decree rendered by both the Courts are not sustainable and are liable to be set aside by this Court.
18. For the foregoing reasons, I pass the following:
ORDER The second appeal is allowed. The judgment and decree passed by the appellate Court in 16 R.A.No.4/2003 dated 18.09.2008 confirming the judgment and decree of the trial Court in O.S.No.2/1996 is set aside.
The propositus Shambu died leaving behind 5 sons and 2 daughters. It is not in dispute that three sons namely, Bhagoji, Peeraji and Amboji and one daughter namely, Devakibai died issueless.
Therefore, propositus Shambhu is survived by only three branches namely, defendant No.1 - Manik, plaintiff No.2 - Laxmibai and plaintiff No.3 -
Krishnabai.
In the light of law laid down by the Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and Others, reported in (2020) 9 SCC, plaintiff No.3 - Krishnabai is entitled for equal share as she acquires status of coparcener in view of amendment to Section 6 of Hindu Succession Act. Therefore, 17 plaintiff Nos.2A to 2G, who represent the branch of Sidrama are entitled for 1/3rd share while plaintiff No.3A, who is the daughter of plaintiff No.3 is entitled for 1/3rd share while defendant No.1 is entitled for 1/3rd share. Defendant Nos.2 and 3, who are purchasers have to work out their equitable remedy in the final decree proceedings and sale deed in their favour would be valid only to an extent of their vendors share in the suit schedule properties.
Registry to draw preliminary decree accordingly.
Sd/-
JUDGE Srt