Karnataka High Court
Sharanappa S/O Parappa Hugar vs Neelamma W/O Sangappa Jeer Ors on 28 November, 2023
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NC: 2023:KHC-K:8877
RSA No. 7159 of 2012
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.7159 OF 2012 (PAR&POSS)
BETWEEN:
SHARANAPPA S/O PARAPPA HUGAR
SINCE DIED
SMT. LAKSHMIBAI
W/O HANAMANTHRAYA HUGAR @ PUJARI,
AGE: 74 YEARS, OCC: AGRICULTURE,
R/O NEAR MANGULI COLLEGE,
GOLGER TO BIJAPUR ROAD, SINDAGI,
TQ: SINDAGI, DIST: VIJAYAPUR-586128.
...APPELLANT
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
Digitally signed V/O DATED 29/8/2019 R6 IS TRANSPOSED AS APPELLANT)
by SHILPA R
TENIHALLI
Location: HIGH AND:
COURT OF
KARNATAKA
1. NEELAMMA W/O SANGAPPA JEER
AGE: 38 YEARS, OCC: AGRICULTURE
R/O BYAKODI VILLAGE
TQ: SINDAGI, DIST: VIJAYAPUR-586128.
2. BHAGAWWA W/O SHARANAPPA HUGAR
AGE: 69 YEARS, OCC. HOUSEHOLD
R/O HUGAR ONI, SINDAGI
TQ: SINDAGI, DIST: VIJAYAPUR-586128.
3. PARAPPA S/O SHARANAPPA HUGAR
AGE: 39 YEARS, OCC. AGRICULTURE
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NC: 2023:KHC-K:8877
RSA No. 7159 of 2012
R/O HUGAR ONI, SINDAGI
TQ: SINDAGI, DIST: VIJAYAPUR-586128.
4. SURESH S/O SHARANAPPA HUGAR
AGE: 35 YEARS, OCC. AGRICULTURE
R/O HUGAR ONI, SINDAGI
TQ: SINDAGI, DIST: VIJAYAPUR-586128.
5. NINGAMMA D/O SHARANAPPA HUGAR
AGE: 31 YEARS, OCC. AGRICULTURE
R/O HUGAR ONI, SINDAGI
TQ: SINDAGI, DIST: VIJAYAPUR-586128.
7. SHIVALEELA
W/O SRIMANTH HUGAR @ PUJARI
AGE: 68 YERS, OCC: AGRICULTURE,
C/O SANGAPPA HUGAR
GOLGER ROAD, HUGAR COMPLEX SINDAGI
TQ: SINDGI, DIST: VIJAYAPUR-586128.
...RESPONDENTS
(BY SMT. REKHA M. PATIL, FOR SRI. G G CHAGASHETTI
ADVS. FOR R1;
R2, R3, R4, R5 ARE SERVED;
SRI BAPUGOUDA SIDDAPPA, ADVOCATE FOR R7)
THIS REGULAR SECOND APPEAL IS FILED U/S 100 OF
CPC, PRAYING TO ALLOWED BY SET ASIDE JUDGMENT AND
DECREE PASSED BY THE CIVIL JUDGE (SR.DN.) SINDAGI IN
O.S.NO.67/2007 DATED: 20.03.2009 AND WHICH IS
CONFIRMED IN THE R.A.NO.68/2009 BY THE III ADDL.
DISTRICT JUDGE BIJAPUR VIDE JUDGMENT & DECREE DATED
14.02.2012 AND CONSEQUENTLY DISMISS THE SUIT OF THE
PLAINTIFF WITH COST THROUGHOUT.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC-K:8877
RSA No. 7159 of 2012
JUDGMENT
Defendant No.1 in O.S.No.67/2007 on the file of the learned Civil Judge (Sr.Dn.), Sindagi (hereinafter referred to as 'the Trial Court' for brevity), is impugning the judgment and decree dated 20.03.2009, decreeing the suit of the plaintiff and declaring that the plaintiff is entitled for 1/6th share in the suit property and also declaring that the alienation of the suit lands bearing RS No.723/1 and RS No.758/1 in favour of defendant No.6 is not binding on the plaintiff to the extent of her share, which was confirmed in R.A.No.68/2009 on the file of the learned III Additional District Judge, Bijapur (hereinafter referred to as 'the First Appellate Court' for brevity) vide judgment dated 14.02.2012.
2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court.
3. Brief facts of the case are that, the plaintiff Neelamma filed the suit O.S.No.67/2007 before the Trial Court against defendant Nos.1 to 7 seeking partition and separate possession of the suit properties i.e., (1) RS No.723/1, measuring 2.14 acres (2) RS No.758/1, measuring 5.30 acres -4- NC: 2023:KHC-K:8877 RSA No. 7159 of 2012 (3) RS No.832/1, measuring 0.20 acres and (4) the house bearing VPC No.68, situated at Ward No.1, Sindagi (hereinafter referred to as 'the suit properties' for brevity) and to allot her 1/6th share in the same by metes and bounds.
4. It is contended that the plaintiff is the daughter of defendant Nos.1 and 2. Defendant Nos.3 and 4 are her brothers. Defendant No.5 is her sister. They constitute the joint family and the suit properties are the joint family properties inherited by defendant No.1 from his ancestors.
5. It is stated that defendant No.1 was adopted by Ningawwa, W/o. Parappa Hugar and thereafter, he married defendant No.2. Defendant Nos.3 to 5 and the plaintiff were born in the said wed lock. The adoptive mother Ningawwa died intestate and the suit properties were inherited by defendant No.1. RS No.832/1 was acquired by defendant No.1 under the partition as per ME No.1482. Therefore, the suit properties are the joint family properties acquired by defendant No.1 and the plaintiff and defendant Nos.1 to 5 are entitled for share in the same.
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NC: 2023:KHC-K:8877 RSA No. 7159 of 2012
6. It is contended that the marriage of the plaintiff was performed during 1994 and since then, she was being given her share in the income derived from the suit properties. However, defendant No.1 is intending to sell the suit properties in favour of Sangappa Siddappa Hugar. Panchayath was conveyed on 01.12.1999, wherein defendant No.1 proclaimed that he will not give any share in the property or in the income derived from it to the plaintiff. Therefore, cause of action had arisen to file the suit. Accordingly, the plaintiff filed the suit seeking partition and separate possession of her 1/6th share by metes and bounds. During the pendency of the suit, defendant Nos.6 and 7 were impleaded.
7. Defendant No.1 filed the written statement denying the contentions taken by the plaintiff regarding her right over the suit properties. The relationship between the parties and the fact that defendant No.1 was adopted by Ningawwa and that the plaintiff and defendant Nos.3 to 5 being the children of defendant Nos.1 and 2 are all admitted. It is denied that the plaintiff was given any share in the income derived from the suit properties.
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NC: 2023:KHC-K:8877 RSA No. 7159 of 2012
8. It is contended that defendant No.1 had acquired the suit properties in his individual capacity after the death of his adopted mother Ningawwa. After the death of Ningawwa, defendant No.1 is in exclusive possession and enjoyment of the suit properties. From out of his hard labour, skill and investment, he improved the suit properties and brought up the plaintiff and defendant Nos.3 to 5, educated them and even performed marriage of the plaintiff. The plaintiff is not having any right, title or interest over any of the suit properties, nor she was in possession of the same at any point of time.
9. It is contended that the plaintiff had filed similar suit O.S.No.226/1999 before the learned Principal Civil Judge (Jr.Dn.), Sindagi. The plaint was returned for want of jurisdiction. In the meantime, defendant No.1 executed the sale deed in favour of defendant Nos.6 and 7. The said sale deed remained unchallenged and the same was never objected by the plaintiff or defendant Nos.2 to 5. Thus, it is contended that defendant Nos.6 and 7 have acquired valid right and title in respect of the suit properties. The sale deed is binding on the plaintiff and defendant Nos.3 to 5. Therefore, the suit of the plaintiff is not maintainable.
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NC: 2023:KHC-K:8877 RSA No. 7159 of 2012
10. Defendant Nos.6 and 7 filed the written statement denying the contentions taken by the plaintiff in the plaint regarding her right, title and interest over the suit properties. It is contended that after making due enquiry regarding the nature of the property and right of defendant No.1, defendant No.6 purchased the land bearing RS No.758/1, measuring 5.30 acres and Sy.No.723/1, measuring 2.14 acres under the registered sale deed dated 07.08.2001 for a valid consideration. Since then, he is in possession and enjoyment of the property as bona-fide purchaser for value, without notice. It is also contended that defendant No.7 is no way concerned to the suit properties. Therefore, they prayed for dismissal of the suit.
11. On the basis of these pleadings, the following issues came to be framed for consideration;
1) Whether the plaintiff proves that the suit properties are the joint family properties liable for partition?
2) Whether the plaintiff is entitled for 1/6th share in the suit properties?
3) Whether the defendant-1 proves that the suit properties are his self acquired properties?
4) Whether the defendant-1 proves that the sale deed executed in favour of Laxmibai Pujari and Smt. -8- NC: 2023:KHC-K:8877 RSA No. 7159 of 2012 Shivaleela Pujari are binding on the plaintiff and defendants-3 to 5?
5) Whether the defendants-6 & 7 prove that they are bonafide purchasers for value without notice?
6) What order or decree?"
12. The plaintiff examined PWs.1 and 2 before the Trial Court and got marked Exs.P1 to 14 in support of her contention and defendant No.1 examined himself as DW-1 and examined DWs.2 to 4 and got marked Exs.D1 to D5 in support of his defence. The Trial Court after taking into consideration all these materials on record, answered issue Nos.1 and 2 in the affirmative and issue Nos.3 to 5 in the negative and accordingly, the suit of the plaintiff came to be decreed, declaring that she is having 1/6th share in the suit properties and also declaring that the alienation of the suit properties bearing RS No.723/1 and RS No.758/1 in favour of defendant No.6 is not binding on the share of the plaintiff. Accordingly, the impugned judgment and decree came to be passed.
13. Being aggrieved by the same, defendant No.1 preferred R.A.No.68/2009 before the First Appellate Court. The First Appellate Court on re-appreciation of the materials on record, dismissed the appeal and confirmed the impugned -9- NC: 2023:KHC-K:8877 RSA No. 7159 of 2012 judgment and decree passed by the Trial Court. Being aggrieved by the same, defendant No.1 has preferred this appeal.
14. During the pendency of the appeal, the original defendant No.1 who was the appellant died and defendant No.6 who was arrayed as respondent No.6 in the appeal is transposed as appellant.
15. Heard Sri Sachin M. Mahajan, learned counsel for the appellant/defendant No.1 and Smt. Rekha M. Patil and Sri G.G.Chagashetti, learned counsel for respondent No.1/plaintiff. Perused the materials including the Trial Court and the First Appellate Court records.
16. Learned counsel for the appellant/defendant No.6 contended that the relationship between the parties and the fact that respondent No.1 was adopted by Ningawwa during 1964 is not in dispute. It is also not in dispute that the suit properties were belonging to the husband of Ningawwa and after his death, Ningawwa succeeded to the same. After the death of Ningawwa on 04.09.1976, defendant No.1 became the absolute owner of the suit properties under Section 15 of the
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NC: 2023:KHC-K:8877 RSA No. 7159 of 2012 Hindu Succession Act. Therefore, the plaintiff or defendant Nos.2 to 5 cannot seek any right, title or interest over the suit properties. The Trial Court and the First Appellate Courts have committed an error in holding that the suit properties are the Hindu Joint Family properties and the plaintiff and defendant Nos.1 to 5 are its coparceners. Both the Courts have committed an error in applying Section 6 of the Hindu Succession Act without any basis. Therefore, he prays for allowing the appeal, in the interest of justice.
17. Per contra, learned counsel for respondent No.1/plaintiff opposing the appeal submitted that the relationship between the parties and defendant No.1 being adopted by Ningawwa is admitted. The suit properties were acquired by defendant No.1 after the death of Ningawwa and therefore, the suit properties are the ancestral properties. The Trial Court and the First Appellate Courts have rightly invoked Section 6 of the Hindu Succession Act and decreed the suit of the plaintiff allotting 1/6th share in the same. There are no reasons to interfere with the concurrent finding of facts by both the Courts. Therefore, she prayed for dismissal of the appeal.
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NC: 2023:KHC-K:8877 RSA No. 7159 of 2012
18. This Court, vide order dated 27.11.2023 framed the following substantial question of law while admitting the appeal;
"Whether the property acquired by defendant No.1 from his adoptive mother late Smt.Ningavva can be considered as co-parcenary or joint family property?"
My answer to the above substantial question of law is in the 'Negative' for the following;
REASONS
19. It is the specific contention of the plaintiff that she is the daughter of defendant No.1 and she is entitled to 1/6th share in the suit properties. Per contra, it is the specific contention of defendant No.1 that the suit properties are his self acquired properties as the same were acquired by him from his adoptive mother Smt. Ningavva. The facts of the case and the relationship between the parties as pleaded by the plaintiff are admitted. Only dispute between the parties is that whether the suit properties were acquired by defendant No.1 absolutely from his adoptive mother Smt. Ningavva after her death or whether the same are the joint family properties.
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NC: 2023:KHC-K:8877 RSA No. 7159 of 2012
20. Even though learned counsel for the respondent- plaintiff tried to contend that the properties are the joint family properties and it devolves on the members of the family as per Section 6 of the Hindu Succession Act, there is no such pleading in the plaint nor there is any evidence to that effect. The documents also do not support the contention which was raised for the first time before this Court that the properties are the joint family properties.
21. Learned counsel for the respondents placed reliance on Ex.P-8 to contend that as per M.E. No.1482 certified during 1997, there was a partition in the family in which Channappa Peerappa Hugar who is defendant No.1 is a party. But the learned counsel fails to explain as to who are the other members who are referred to in Ex.P-8 i.e., Siddappa, Sangappa, Ramesh and Basavaraj. However, learned counsel for the appellant submits that R.S.No.832/1 measuring 1 acre 20 guntas i.e., item No.3 in the suit properties belonged to the temple and six persons mentioned in Ex.P-8 partitioned the same in which defendant No.1 was allotted 20 guntas. But however no such explanation is found in Ex.P-8. Even otherwise, it is not in dispute as per this document that 20
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NC: 2023:KHC-K:8877 RSA No. 7159 of 2012 guntas of land in R.S.No.832/1 of Sindagi village was allotted to the share of defendant No.1.
22. After the death of Parappa - the husband of Ningavva in the year 1924, all his properties devolved on his wife Ningavva in view of Section 8 of the Hindu Succession Act, in the absence of any other legal representatives. Once the property is devolved on a female Hindu, it becomes her absolute property under sub-section (1) of Section 14 of the Hindu Succession Act. When the property was the absolute property of Ningavva, the subsequent adoption of defendant No.1 by her would not divest her right over the property in view of Section 12(c) of the Hindu Adoption and Maintenance Act, 1956. When the property absolutely vests in Ningavva, it is only after her death on 04.09.1976, the property will devolve on defendant No.1 as per Section 15 (1) of the Hindu Succession Act. Therefore, defendant No.1 being the adoptive son will acquire it as his absolute property. His wife and children cannot have any right over the same during his lifetime.
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NC: 2023:KHC-K:8877 RSA No. 7159 of 2012
23. As per the contention raised by defendant No.6 who is the appellant herein and also defendant No.1, item Nos.1 and 2 of the suit properties i.e., R.S.No.723/1 and R.S.No.758/1 measuring 2.14 and 5.30 acres respectively of Sindagi village were purchased by defendant No.6 under the registered sale deeds Exs.D-4 and D-5 copies of which are marked as Exs.P-13 and P-14. Therefore, it is clear that defendant No.1 sold item Nos.1 and 2 of the suit properties in favour of defendant No.6 under the registered sale deeds. Admittedly, plaintiff has not sought for cancellation of the sale deeds nor she has sought for declaration that the sale deeds are not binding on her share of properties. Therefore, the plaintiff cannot seek any relief against defendant No.6 who is the purchaser of R.S.Nos.723/1 and 758/1 measuring 2.14 acres and 5.30 acres situated at Sindagi village which are item Nos.1 and 2 of the suit properties. Even otherwise, when it is held that the suit properties devolved on defendant No.1 under Section 15(1) of the Hindu Succession Act after the death of his adopted mother Ningavva, plaintiff or other heirs of defendant No.1 cannot have any right over the same during his lifetime.
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NC: 2023:KHC-K:8877 RSA No. 7159 of 2012
24. It is the admitted fact that defendant No.1 who preferred this appeal died intestate during the pendency of the appeal i.e., on 20.09.2013. After the death of defendant No.1, plaintiff and defendant Nos.2 to 5 inherited the properties left behind by defendant No.1 i.e., item No.3 - R.S.No.832/1 measuring 20 guntas and item No.4 - the house bearing VPC No.68, Ward No.1 of Sindagi. Therefore, it is to be held that the plaintiff and defendant Nos.2 to 5 are entitled for 1/5th share in those two items of properties only. In view of the discussion held above, I am of the opinion that the suit of the plaintiff in respect of item Nos.1 and 2 of the suit properties is liable to be rejected. Even though on the basis of the discussion held above, the substantial question of law is liable to be answered in the negative, the subsequent development during the pendency of the litigation discloses that defendant No.1 died intestate after preferring this appeal. Therefore, the plaintiff will succeed to get 1/5th share in item Nos.3 and 4 of the suit properties.
25. I have gone through the impugned judgment and decree passed by the Trial Court and the First Appellate Court. Both the Courts have committed an error in holding that
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NC: 2023:KHC-K:8877 RSA No. 7159 of 2012 defendant No.1 succeeded to the properties derived from Parappa who died in the year 1924. There is no pleading to the effect that Parappa was the member of the joint family and he succeeded to the suit properties or that the suit properties are the joint family properties. The Trial Court and the First Appellate Court based their findings only on Ex.P-8 which was not explained either in the pleadings or in the evidence of the plaintiff nor there is any cross-examination on Ex.P-8 to the defence witnesses. Under such circumstances, both the courts committed an error in forming the opinion that the suit properties are the joint family properties and that the plaintiff is one of the coparceners. Such findings, even though concurrent findings, are perverse and against the settled position of law. Therefore, as I have already stated that in view of death of defendant No.1 during the pendency of this appeal, the plaintiff is entitled to claim 1/5th share in item Nos.3 and 4 of the suit properties. Hence, even though the substantial question of law is answered in the negative, the appeal is liable to be allowed in part.
26. In view of the discussion held above, I am of the opinion that the suit of the plaintiff with regard to item Nos.1
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NC: 2023:KHC-K:8877 RSA No. 7159 of 2012 and 2 of the suit properties is liable to be dismissed, whereas in respect of item Nos.3 and 4 it is to be held that the plaintiff is entitled for 1/5th share. Accordingly, I proceed to pass the following:
ORDER
(i) The appeal is allowed in part with costs.
(ii) The impugned judgment and decree dated 20.03.2009 on the file of the Civil Judge (Sr.Dn.), Sindagi passed in O.S.No.67/2007 and confirmed by the judgment and decree dated 14.02.2012 on the file of the III Additional District Judge, Vijayapur passed in R.A.No.68/2009 are modified.
(iii) The suit of the plaintiff in respect of R.S.No.723/1 measuring 2.14 acres and R.S.No.758/1 measuring 5.30 acres situated at Sindagi village, which are item Nos.1 and 2 of the suit properties, is dismissed.
(iv) The suit of the plaintiff in respect of R.S.No.832/1 measuring 20 guntas of Sindagi village and house bearing VPC No.68, Ward No.1 of Sindagi village, which are item Nos.3 and 4 of the suit properties, is decreed. It is held that the plaintiff is entitled for 1/5th share
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NC: 2023:KHC-K:8877 RSA No. 7159 of 2012 in these two items of properties by metes and bounds.
(v) Office is directed to draw the decree
accordingly.
Registry to send back the Trial Court and First Appellate Court records along with copies of this judgment and decree.
In view of disposal of the appeal, pending interlocutory applications, if any, stand disposed of.
Sd/-
JUDGE PN/SWK CT-VD List No.: 1 Sl No.: 5