Karnataka High Court
Basavaraj S/O Revansiddappa Revoor And ... vs Shanta Bai W/O Sangappa Biradar And Ors on 29 November, 2021
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29 TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
RSA.No.200143/2015
BETWEEN:
1. Basavaraj,
S/o.Revansiddappa Revoor,
Aged about 50 years,
Occ: Driver & Agriculture,
2. Shivkumar,
S/o.Revansiddappa Revoor,
Aged about 35 years,
Occ: Agriculture,
Both are r/o.Ekloor,
Taluk: Basavakalyan,
District: Bidar-585 401.
... APPELLANTS
(By Sri.Ameet Kumar Deshpande, Advocate)
AND:
1. Shanta Bai,
W/o.Sangappa Biradar,
Aged about 70 years,
Occ: Agriculture,
R/o.Cold Drink Shop,
Hyderabad Naka,
Navingalli,
Solapur-413 001.
2. Annapoorna Bai,
W/o.Sidramappa Wadi,
2
Aged about 68 years,
Occ: Agriculture,
R/o.Village Belamagi,
Taluk: Basavakalyan,
Dist: Bidar-585 401.
3. Girija Bai,
W/o. Devindra Ratnaji,
Aged about 65 years,
Occ: Agriculture,
R/o. Cold Drink Shop,
Hyderabad Naka,
Navingalli,
Solapur-413 001.
4. Mahadevi,
W/o. Suresh Biradar,
Aged about 62 years,
Occ: Agriculture & Household,
R/o. Hyderabad Naka,
Navingalli,
Solapur-413 001.
5. Parvathi,
W/o. Bhimaraya Kali,
Aged about 59 years,
Occ: Agriculture & Household,
R/o. Plot No.49, Laxmi Nivas,
Hare Krishna Nagar,
Jevargi Road,
Santosh Colony,
Gulbarga-585 102.
6. Shobha,
W/o. Rajendra Nasikar,
Aged about 57 years,
Occ: Agriculture & Household,
R/o: Near Bhogi Hospital,
Gurunanak,
Guruwada Premises,
Bidar-585 401.
... Respondents
(By Sri. Ravi. B. Patil, Advocate for R-2 to 6
R-1 served)
3
This RSA is filed under Section 100 of CPC against the
Judgment and Decree dt.10.02.2015 passed in R.A.No.95/2012
on the file of the Fast Track Court, Basavakalyan, Dist: Bidar,
partly allowing the appeal and modifying the Judgment and
Decree dt.14.08.2012 passed in O.S.No.95/2007 on the file of the
Senior Civil Judge at Basavakalyan.
This Appeal being heard and reserved for Judgment,
coming on for pronouncement of Judgment, this day, the Court
delivered the following:-
JUDGMENT
Defendants are in this Regular Second Appeal aggrieved by the Judgment and Decree dated 14.08.2012 passed in O.S.No.95/2007 on the file of the Senior Civil Judge at Basavakalyan (for short Trial Court) and also aggrieved by Judgment and Decree dated 10.02.2015 passed in regular appeal in R.A.No.95/2012 on the file of the Fast Track Court, Basavakalyan. District: Bidar (for short First Appellate Court). The Trial court had partly decreed the suit of the plaintiff for partition and separate possession. The First Appellate Court had modified the same.
2. Parties are referred to by their original rankings before the trial court.
4
3. The subject matter of the suit are the following immovable properties:
Sl. Sy.Nos. Measuring
No.
01. 200/3 06 acres - 10 guntas
02. 200/AP 00 acres - 08 guntas
03. 200/1 03 acres - 32 guntas
04. 198/Ba 02 acres - 19 guntas
05. 196/2 01 acre - 31 guntas
06. GP.No.24 House consistent of 06
rooms and open space.
All are situated at Ekloor village Taluka Basavakalyan.
4. Brief facts of the case leading upto the filing of the present appeal are that one Revansiddappa, son of Bandeppa Revur was the owner in possession of the suit schedule properties described in the plaint. Said Revansiddappa had two wives, namely Smt. Gundamma the plaintiff No.7 herein and one Smt.Tarabai. Plaintiffs 1 to 6 herein are the daughters born to said Revansiddappa from his first wife the Plaintiff No.7. The Defendant Nos.1 and 2 are the sons born to said Revansiddappa from his second 5 wife Smt.Tarabai. That the suit schedule properties are the joint family properties. Said Revansiddappa passed away intestate on 23.08.2007. Upon the demise of said Revansiddappa, the suit schedule properties devolved upon the plaintiffs and defendants 1 and 2 each being entitled for equal share therein. The plaintiffs request for partition and separate possession of the suit schedule properties was not accorded by the defendants, thereby, constraining the plaintiffs to file suit for partition and separate possession of their share.
5. Upon service of summons, defendants 1 and 2 appeared and filed written statement admitting the relationship and also the suit schedule properties being ancestral properties. It was specifically contended by the defendants that during the life-time of Revansiddappa, his first wife Gundamma the plaintiff No.7 herein had filed a criminal miscellaneous petition No.185/1989 on the file of JMFC Court, Gulbarga. That in the said proceedings, a compromise was entered into in terms of which deceased Revansiddappa had agreed to pay a sum of Rs.2,600/- per 6 annum towards maintenance of his first wife Gundamma towards full and final satisfaction of her entitlement and that the Plaintiff Nos.1 to 6 being the daughters of Revansiddappa were given six tolas of gold each. In consideration thereof, the said Plaintiffs No.1 to 6 had given up their claim over their share in the suit schedule properties. It is further contended by the Defendants 1 and 2 that deceased Revansiddappa had borrowed huge amount of loan to perform the marriage of the plaintiffs and also to improve the suit schedule properties. It was further contended that if in the event the plaintiffs being entitled for the share in the suit schedule property, they should also be held liable to bear the burden of the loan borrowed by late Revansiddappa. Hence, sought for dismissal of the suit.
6. Plaintiff No.1 was subsequently transposed as Defendant No.3 and supported the case of defendants. The plaintiff No.7 Smt. Gundamma died during pendency of the suit. The trial court based on the pleadings, had framed four issues which were re-casted into three as under: 7
i) Whether the defendant proves that the compromise and debts incurred by the common ancestor Revansiddayya as contended in Para Nos.5 and 12 of the written statement?
ii) Whether the plaintiffs are entitled for the relief as sought for?
iii) What order or decree?
7. The trial court recorded evidence. Plaintiff No.5 examined herself as P.W.1 and exhibited two documents marked as Exs.P1 and P2. Defendant No.1 examined himself as D.W.1 and also three witnesses as P.Ws.2 to 4 and exhibited 18 documents marked as Exs.D1 to D18. On appreciation of evidence, the trial court by its judgment and decree dated 18.08.2012 partly decreed the suit holding that the Plaintiffs 2 to 6 and Defendant No.3 (earlier Plaintiff No.1) being entitled for 1/6th share each in the suit schedule properties. The Trial Court declined to grant any share in the suit schedule properties to the Defendants No.1 and 2 holding them to be illigitimate children in the eye of law on the premise of they being sons of Revansiddappa from his second wife Smt. Tarabai whose marriage had taken place 8 during the subsistence of the first marriage with Smt. Gundamma.
8. Being aggrieved by the aforesaid Judgment and Decree passed in O.S.No.95/2007, the defendants preferred regular appeal under Order 41 Rule 1 read with Section 96 of CPC in R.A.No.95/2012 before the First Appellate Court. The first appellate court, on going through the impugned judgment, framed following points for its consideration:
POINTS:
i) Does appellants prove that the finding of trial court that the defendants failed to prove compromise in criminal miscellaneous No.185/1989 is arbitrary and not in accordance with the evidence on record?
ii) Does appellants prove that the finding of trial court that the defendants failed to prove that their father gave 6 Tolas gold to each plaintiff towards their share in the family properties is arbitrary, and not in accordance with the evidence on record?9
iii) Does appellants prove that the finding of the trial court that the defendants failed to prove debts is arbitrary, and not in accordance with the evidence on record?
iv) Does appellants further prove that the finding of trial court that the defendant No.1 and 2 being illegitimate children are not entitled to share in the suit schedule properties is arbitrary and illegal?
v) Does trial court judgment under challenge need to be interfered with?
vi) What order?
and held Point Nos.(i) to (iii) in the negative, Point Nos.(iv) and (v) in affirmative and thereafter, concluded that the Plaintiff Nos.2 to 6 and Defendant Nos.1 to 3 being children of said Revansiddappa are entitled for partition and separate possession in the suit schedule properties to the extent of 1/8th share each and directed drawing of preliminary decree accordingly. Being aggrieved by the said Judgment and Decree in O.S.No.95/2007 which was modified in R.A.No.95/2012, the defendants have filed the present regular second appeal. This Court by order dated 10 04.01.2019, while admitting this second appeal, had framed the following substantial questions of law for consideration:
i) Whether the first appellate court was justified in law in modifying the Judgment without reassessing the material both oral and documentary evidence on record?
ii) When plaintiffs/daughters claim equal share, whether the courts below were justified in not saddling the proportionate liability in the outstanding dues of propositus Revansiddappa on the plaintiffs in the facts and circumstances of the case?
9. Heard Sri. Ameetkumar Deshpande, the learned counsel for the appellants and Sri. Ravi B. Patil, the learned counsel for the respondents No.2 to 6. Respondent No.1 is served.
10. The learned counsel for the appellants- defendants reiterating the grounds urged in the appeal memo submits that:-
a) In view of the compromise entered between into Revanasiddappa and plaintiffs in the 11 Crl.Misc.No.185/1989, the plaintiffs having received gold and had given their shares in the suit schedule properties in lieu thereof.
b) That huge loans had been borrowed by Renasiddappa during his life time for the purpose of improvement of the properties and also to meet marriage expenses of the plaintiffs and if the shares in the suit properties were to be given plaintiffs, they shall be held liable for payment of proportionate dues. Hence, seeks allowing the appeal.
11. The learned counsel for the respondents - plaintiffs submits that a. That there was no compromise of any nature whatsoever has contended by the Defendnts.
b. That since the Defendants have not established and prove Revansiddappa having borrowed any loans, there is no question of fastening any liability on the plaintiffs.
c. That the Trial Court and First Appellate Court have taken these aspects of the matter into consideation 12 and have decreed the suit. Therefore, there is no substantial question of law involved in the matter.
12. The plaintiffs 2 to 6 and Defendant No.3 (originally plaintiff No.1 later transferred as defendant No.3) being daughters of Revansiddappa from his first wife Smt. Gundamma - the plaintiff No.7 and Defendants 1 and 2 being the sons of Revansiddappa from his second wife Smt.Tarabai is not in dispute. The plaint schedule properties consisting of five items of landed property and one item of house property as described in the plaint being the ancestral properties is also not in dispute. The only contention that is raised by the defendants to resist and deny the claim of the plaintiffs for partition and separate possession is that a compromise had been entered into between the deceased Revansiddappa with his first wife Smt. Gundamma the plaintiff No.7 and the daughters in the year 1990 in terms of which, Revansiddappa had purportedly agreed to pay Rs.2,600/- per annum towards maintenance of Plaintiff No.7 and that Plaintiff No.7 had purportedly agreed to receive said sum of Rs.2,600/- per annum in full and final 13 satisfaction of her claim and that the Plaintiff Nos.1 to 6 being the daughters of Revansiddappa had received six tolas of gold each from the said Revansiddappa in full and final settlement of their claim and that the said compromise was recorded in the criminal proceedings in Cril.Misc.No.180/1989.
13. Cril.Misc.No.180/1989 is a petition filed under Section 125 of Cr.P.C. by Smt.Gundamma, the plaintiff No.7 against her husband Sri.Revenasiddappa. Ex.D1, a certified copy of the order sheet in the aforesaid Criminal Misc.No.180/1989. The parties to the said proceedings are Gundamma and Revanasiddappa. In the notings of the Court proceedings dated 24.11.1998, it is noticed that there is a report of compromise between the said parties. There is no mention of any nature whatsoever of either plaintiff No.7 - Gundamma receiving Rs.2,600/- per annum or plaintiffs 1 to 6 agreeing to take 6 tolas of gold and in lieu thereof they giving up their claim over the plaint schedule properties. In any event, plaintiffs 1 to 6 are not the parties to the said proceedings. As such, the defence set up by the 14 Defendants 1 and 2 that the first wife and the plaintiffs of the deceased Revanasiddappa had given up their claim over the suit schedule property by receiving Rs.2,600/- per annum as maintenance and six tolas of gold respectively cannot be sustained. The trial court and the first appellate court having rightly appreciated the material evidence have come to the conclusion that the defendants have not proved this aspect of the matter. The said finding cannot be faulted with.
14. Further contention of the defendants that deceased Revansiddappa had borrowed huge amounts of loan from various persons, as noted in Paragraph 15 of the Trial Court judgment, i.e., Rs.3,50,000/- from D.W.2 on 21.10.2000, Rs.3,50,000/- from Revansiddappa Police Patil on 25.07.2000, Rs.3,00,000/- from Mahadappa Shantappa Mali Biradar on 11.11.2001, Rs.3,00,000/- from one Chandrakant Mahadevappa on 10.09.2005 and Rs.2,00,000/- from one Rajkumar, s/o. Sharnappa on 06.06.1998, of which D.W.2, D.W.3 and D.W.4 being the creditors having been examined by the defendants. 15 However, except self-serving statement of DW.2, DW.3 and DW.4, no documentary evidence is produced to prove and establish the said loan transactions. The trial court has rightly observed that considering the value of the amount alleged to have been given as loan, it was impossible to believe that they could have lent so much of money without having any proof and rightly declined to accept the said contention of the defendants as the same was not worthy of credence. The Appellate Court has taken note of this aspect of the mater in Paragraphs 20 and 21 of its Judgment. The said finding of the trial court and the first appellate court on the factum of lending and borrowing of money cannot therefore be found fault with. In this view of the matter, in the absence of defendants establishing Revansiddappa borrowing such huge amounts, the question of saddling proportionate liability in the alleged outstanding dues on the plaintiffs would not arise. Therefore, the Trial Court and the First Appellate Court were justified in not saddling the proportionate liability on the alleged outstanding due on the plaintiffs.
16
15. The trial court had decreed the suit holding that the Plaintiffs 2 to 6 and Defendant No.3 (earlier Plaintiff No.1) being the daughters of Revansiddappa from his first wife were entitled for 1/6th share and it had declined to recognize the share of Defendant Nos.1 and 2 being the sons of Revansiddappa from his second wife Smt.Tarabai on the premise that the Defendant Nos.1 and 2 being the sons of Revansiddappa from his second wife to whom he had married during the subsistence of his first marriage with Plaintiff No.7 - Smt.Gundamma and had consequently opined that Defendants 1 and 2 were illegitimate children in the eyes of law and had held that there was no provision in providing share to the illegitimate children as far as ancestral property was concerned and thus, kept Defendants 1 and 2 out of the process of partition. This reasoning and the finding has been reversed and modified by the first appellate court. The first appellate court at Paragraph 22 of its Judgment has referred to the provisions of Section 16 of the Hindu Marriage Act, 1955, through which the illegitimate children were considered to be legitimate for the purpose of the share in the ancestral property and also referring to the 17 Judgment of this Court in the case of SAROJAMMA AND OTHERS vs. SMT.NEELAMMA AND OTHERS (ILR 2005 KAR 3213)(DB), wherein it is held that the children born out of null and void marriages were also entitled for share in the family properties, concluded that Defendants 1 and 2 though born out of second marriage of Revansiddappa were yet entitled for share in the suit properties and modified the Judgment and Decree of the trial court and held that the Plaintiffs 2 to 6 and Defendants 1 to 3 being children of Revansiddappa are entitled for partition and separate possession in the suit schedule properties to the extent of 1/8th share each therein.
16. The aforesaid reasoning and conclusion arrived at by the first appellate court being in accordance with law and in consistent with the facts and circumstances of the case, same do not warrant any interference as such, the substantial questions of law framed as above are answered accordingly.
17. In the result, the following;
18
ORDER I. RSA No.200143/2015 is dismissed.
II. The judgment and decree dated 10.02.2015 passed in R.A.No.95/2012 on the file of the Fast Track Court Basavakalyan Dist: Bidar, is confirmed.
III. No order as to costs.
Sd/-
JUDGE bnv