Karnataka High Court
Smt.Bheemawwa And Ors vs Sri Basappa And Anr on 14 June, 2023
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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NC: 2023:KHC-K:1061
RFA No. 200136 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
REGULAR FIRST APPEAL NO. 200136 OF 2017 (PAR)
BETWEEN:
1. SMT.BHEEMAWWA D/O KAMMANNA,
AGE: 72 YEARS,
OCC: HOSUEHOLD & AGRI,
R/O ALLAPUR VILLAGE,
TALUKA JEWARGI,
DIST: KALABURAGI.
2. SRI GOLLALAPPA S/O BHEEMAWWA,
AGE: 42 YEARS, OCC: AGRI,
R/O ALLAPUR VILALGE,
TALUKA JEWARGI,
DIST: KALABURAGI.
Digitally signed
by SACHIN 3. SRI KAMANNA S/O BHEEMAWWA,
Location: HIGH AGE: 40 YEARS, OCC: AGRI,
COURT OF R/O ALLAPUR VILALGE,
KARNATAKA
TALUKA JEWARGI,
DIST: KALABURAGI.
4. SRI SHIVASHARANAPPA
S/O BHEEMAWWA,
AGE: 40 YEARS, OCC: AGRI,
R/O ALLAPUR VILALGE,
TALUKA JEWARGI,
DIST: KALABURAGI.
...APPELLANTS
(BY SRI SHIVANAND PATIL, ADVOCATE)
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NC: 2023:KHC-K:1061
RFA No. 200136 of 2017
AND:
1. SRI BASAPPA S/O JAYYAPPA,
AGE: 52 YEARS, OCC: AGRI,
AINAPUR VILLAGE, TALUKA JEWARGI,
DIST: KALABURAGI-585112.
2. SMT. KONTEWWA W/O HANMANTHA,
D/O KAMANNA,
AGE: 70 YEARS, OCC: HOUSEHOLD,
R/O ALLAPUR VILLAGE, TALUKA JEWARGI,
DIST: KALABURAGI-585112.
...RESPONDENTS
(BY SRI DESHPANDE G V. ADVOCATE R1 & R2)
THIS RFA IS FILED UNDER SECTION 96 OF CPC, PRAYING
TO ALLOW THE APPEAL AND CONSEQUENTLY SET-ASIDE THE
IMPUGNED JUDGMENT AND DECREE DATED 20.09.2017
PASSED IN O.S. NO.20/2015 ON THE FILE OF SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE OF THE FIRST CLASS AT
JEWARGI IN THE INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Defendants are in appeal.
2. One Kamanna had three daughters, Rajavva, Bheemawwa and Kontewwa.
3. Kontewwa along with her sister Rajavva's son Basappa instituted the suit seeking for partition and for allotment of 1/3rd share in the suit property, which was -3- NC: 2023:KHC-K:1061 RFA No. 200136 of 2017 land bearing Sy.No.63 measuring 20 acres 06 guntas situate at Allapur village of Jewargi Taluk in Kalaburagi District.
4. It was their case that the property belonged to Kamanna and on his death, his three daughters would be entitled for 1/3rd share. But, Bheemawwa the first defendant was managing the affairs of the property without the consent and knowledge of her other sister and nephew had got the suit property mutated in her favour and was stand to alienate the property, as a result of which the suit had to be filed.
5. It was also stated that thereafter Bheemwwa had got the entries also mutated in favour of her sons i.e., defendants No.2 and 4 and they were trying to alienate the property, as a consequence of which, the suit had to be instituted.
6. Bheemawwa and her sons entered appearance and contested the suit. Bheemawwa did not dispute either the relationship of the parties or the fact that the -4- NC: 2023:KHC-K:1061 RFA No. 200136 of 2017 properties were acquired by her father. She however took up the contention that she had scarified her life by becoming a Devdasi and her father with the consent of her sisters Rajavva and Kontewwa, had orally given the land to her for her survival since she could not marry anyone during her lifetime and also because of loans that had been taken from money lenders to celebrate the marriage of her sisters. She stated that the money lenders had occupied the suit land and the house and she had engaged herself along with her two sons as bonded labourers and had repaid the entire loan amount which was well within the knowledge of her sisters.
7. She stated that she still continued as a bonded labourer for the money that she had secured for repaying the loan. She stated that after the death of her father, the suit property was mutated in her name and she was enjoying the land as an absolute owner and this was also well within the knowledge of her sister and nephew. She stated that thereafter she and her son had partitioned the -5- NC: 2023:KHC-K:1061 RFA No. 200136 of 2017 property in the year 1984-85 and they were enjoying the same. She therefore stated that the claim of her sister and nephew were without any justification.
8. The Trial court framed in all five issues.
9. Basappa, the nephew of Bheemawwa and Kontewwa, the sister of Bheemawwa got themselves examined as PWs.1 and 2 and seven documents were admitted into evidence and marked as exhibits.
10. Kontewwa got herself examined as DW.1, apart from another witness and got 18 documents admitted into evidence and marked as exhibits.
11. The Trial Court on consideration of the material placed before it, came to the conclusion that it had been established that the plaintiffs were the members of the Hindu Undivided Joint Family along with Bheemawwa and they had also established that the suit schedule property was their ancestral and joint family property and were in joint possession of the same. The Trial Court recorded a finding that Bheemawwa had failed to establish that the -6- NC: 2023:KHC-K:1061 RFA No. 200136 of 2017 suit land was orally given to her by her father with the consent of her two sisters. The Trial Court accordingly decreed the suit and granted 1/3rd share to Kontewwa and 1/3rd share to the branch of the other sister of Rajavva apart from granting 1/3rd share to Bheemawwa.
12. Bheemawwa and her sons being aggrieved by the said decree are in appeal.
13. Learned counsel for the appellants, Sri Shivanand Patil, vehemently contended that the Trial Court could not have decreed the suit, having regard to the fact that Bheemawwa had become a Devdasi and the suit property had been given to her by her father with the consent of her two sisters. He submitted that this fact stood established by the mutation effected in the year 1984-1985 itself and having regard to the length of time that had elapsed, the Trial Court ought not to have entertained the suit.
14. It was also contended that since Bheemawwa had become a Devdasi, any transfer of property in her -7- NC: 2023:KHC-K:1061 RFA No. 200136 of 2017 favour did not require any instrument and the same was immune from any kind of attack.
15. Learned counsel for the respondents on the other hand supported the judgment and decree and highlighted the fact that the Trial Court was bound to decree the suit, after the evidence adduced indicated that Bheemawwa was in fact married to one Rayappa and was living with him which was also evidenced by Ex.P.7 the voters list. He therefore submitted that the decreeing of the suit could not be found fault with.
16. In the light of the argument advanced the only point arise for consideration in this appeal is :
"Whether the Trial Court was justified in coming to the conclusion that plaintiffs were entitled to 1/3rd share in the suit properties. ?"
17. As noticed above, Bheemawwa did not dispute the relationship as stated by the plaintiffs. In other words, she admitted that she had an elder sister called Rajavva who had one son called Basappa (plaintiff No.1) and -8- NC: 2023:KHC-K:1061 RFA No. 200136 of 2017 another younger sister Kontewwa (plaintiff No.2). Bheemawwa also did not dispute the fact that the suit properties were joint family properties and that her father had died intestate. In the light of the admitted position that Kamanna had three daughters, it is obvious that on his death all his three daughters would inherit his property in equal proportions. In the light of this indisputable position, the decree of the Trial Court granting 1/3rd share to each branch of Kamanna's daughter cannot be found fault with.
18. As far as the contention by the learned counsel for the appellants that Bheemawwa had become a Devdasi and she sacrificed her life for her two sisters to be married is concerned, it is to be stated here that the Trial Court on appreciation of Ex.P.7, which was the certified copy of the voter's list, has correctly come to the conclusion that Bheemawwa was in fact married to Rayappa and out of their wedlock, defendants No.2 to 4 might have been born. In fact, the Trial Court has noticed that Bheemawwa had -9- NC: 2023:KHC-K:1061 RFA No. 200136 of 2017 admitted Ex.P.7 and had also admitted that she did not have any documents to show that she was a Devdasi. The Appellate Court has also noticed that the other witness examined by Bheemawwa, had admitted that Rayappa was residing with Bheemawwa and his dead body was in fact buried in the suit land and defendants No.2 to 4 were performing poojas to his grave.
19. In my view the conclusion arrived at by the Trial Court, in the light of the evidence noticed above that Bheemawwa had not established that she had become a Devdasi to save the family from being indebted to money lenders.
20. As a consequence, the judgment and decree of the Trial Court cannot be found fault with and same is affirmed. Consequently, the appeal is dismissed.
Sd/-
JUDGE SN List No.: 1 Sl No.: 33