IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD O
DATED THIS THE 3TH DAY op SEPTEMB;ER..'2Q(§9_:: %
1>REsE1~zTM J %
THE I-ION'BLE MR. JU$TIQ-EO..Fi.'4'K_i:fM'ER'
THE HON'BLE MR.._TUsT1¢E'jAE,%sEEENITrA$Ef%GowDA
RFA No T2-1129}-.;'ZD'GE6O':E{:1523TR)
BETWEEN:
VEEREEHK:g'_,_, vk, A
S / o 'LAT.E;»'_DU}1ZU_GA'PPA~'MEDAR
AGED 'ABGET 3:2 Y_ElARS....
OCC: AG:R1C'[VJLT.U'R_E. T
R] 0 NEAR .K.AI*JAK_AD__U RGA
TALKEES,*1SLAM}3URiGANGAVATI,
GANGAVAT"HI'TAI.._.-UK
_;' KOPPAL DESTRECT 583227.
---------- ...APPELLANT
EMANTHAREDDY SAHUKAR, ADV.)
A 1. "s1&2;T MALLAMMA
W/O LATE SHESHAPPA M
OCC: HOUSEHOLD WORK
R/O DEVARAJ URS COLONY
KOPPA DISTRICT 583227
1/
MANJUNATHA
S/O LATE SHESI-IAPPA MEDAR
AGED ABOUT 25 YEARS,
OCC: STUDENT
R/O DEVARAJ URS COLONY
KOPPA DISTRICT 583227
KUM KANAKESHWAR1 ._
D/O SHESHAPPA MEDAR
AGED ABOUT 15 YEAR:'}.,_
(MINOR) THROUGH
NATURAL GUARDIAN
SMT.§\/EALLAMMA~33/IEIZEARLE. R1
R /O DEJVARAJ URS .
KOPPA D1STRICT 5233227 : "
TIPPANN:A';_ O_
S,'-GA»I.;A'1'.E OUR U.OAPPA----M.EDAR
AGED AB1O.U'TV%8O_YE_A.R:3
OCC: 4AGRI{§fU.LTU'i?;E' O.
R/O_GUND.AMAMA'*CAMP,
Since deceased,
appekiant &
respondents E--8 are
amended per
L V Court Order dated
GAN G~AVATI' ; 2,08_0€)
4; KOPPAL"~D_ISTRICT 58322 7
3 SMT' SAVITRAWWA
U A A W-,!_O .I;"A_'I'E NAGARAJ MEOAR
%.A'OI%;~1'>_ ABOUT 35 YEARS
' OC.Ci*"i§lOUSE3HOLD
R {O GUNDAMMA CAMP,
G.A§?JGAVATI TALUK
A 'A KOPPAL DISTRICT 583227'
"RUM PUSHPA
D/ O LATE NAGARAJ MEDAR
MINOR, AGE 6 YEARS, U/G OF' HER
LRS Ofdeceased R4,
THIS APPEAL COMING ON FOR ORDERS"---THIS
DAY, KUMARJ DELIVERED THE) FOLLOWING?"fl"»_._f'~..V
JUDGMENT
This appeal is by the 6*?
judgment and decree whichfhas
plaintiffs declaring that entitled to
1/4111 share in all suite.psephefldfttpfep’plfoperties except
suit item 3 acres 25
guntas ave efendant No.7 .
–_ fof convenience, the parties
are refafécz referred to in the original
stut. *
* Z Durugappa Medar is the propositor. He
had sons by name Maliyappa, Tippanna and
..Ht1lt1gappa. In turn, Tippanna had three sons by name
fl “‘V_VDuAfugappa, Sheshappa and Nagappa. The 18′ plaintiff
“this the widow of Sheshappa and other plaintiffs are son
ii/D
_5l
and daughter. The ls’ defendant is Tippanna. The
defendants 2 to 5 are the widow and children of
Nagappa. 6*’ defendant is the son of Durugapp.a.,_» 731
defendant is the purchaser of one of the
joint family properties.
4. The case of the plajrififm “is
schedule properties arefjoint “far;n.ily ,p’ropertie;su”of
plaintiffs and defendants. iVif’13’xT’.:isched’t’£l€:VV:[properties are
landed properties and_xVfB_’ sch;edi1l.e~.p”roperties are house
prope.rtiies:’j.’llhéi:;;y.lst of *~-Tippanna, Durugappa died
prior 7.1;o ” the H Subsequently, his widow
Mallamrr1ia.ialvsoidie’d iileaving behind them their only son
theV””d-.ef«endant No.6. The second son
ligiircgoi on o9.1i.2o02 leaving behind plaintiffs
ll legal heirs. The 3″? son Nagappa also died
leavi’i1g;’i~behind defendants 2 to 5 as his legal heirs. The
‘llééttlefendant was the Kartha and manager of the family.
A ___§No partition has taken place in the joint family. All the
34/
l5t
properties are enjoyed by ail the members of the joint
family. When the 6″? defendant sold Survey No.13}/D
in favour of 7*’ defendant and mutation entries”-.__were
made in pursuance of the sale deed, the
18* plaintiff has challenged the
Assistant Commissioner. i’6?=’i “«defe3i1.:diz3.I1.tf”also
instigated by other defendants Aei=(clude:..t;hie”
from enjoying the properties”:t».:”In fact; jhilstadefendant
went to the extent husband of the
plaintiff No.1, Sheishvappali meanwhile,
SheshappaA”i5di_eVdn3._a~nd~«..VV__pla_intiffs were denied their
legitimate share’ theiyiiipiroperties. Hence, they were
eon;st’1’arined ‘to; file a” suit for l/411* share in alt the suit
ditzljoperties. In fact, by amendment they
the Item Nos.l and 2 of the suit
sehed’u:le”idroperties were purchased under registered
“sale deed on 10.05.1973 by Sheshappa. The said
“‘proi1i3erties are his self acquired properties and therefore,
V Wthey are entitled to the said property exclusively’.
it/,
5. After service of summons, defendants
entered appearance. Defendants 1 to 5 filed-fcohrrwnzon
Written statement. They did not
relationship between the parties;
that all the suit schedule A
properties. It is specif”i’ca’lly late’
jgaljways nsed”to pick up
Sheshappa and defe’rid&antrr’iNlo’;5l
quarrel with the defendaritlflo.l.~i._ln_’;rlespect of sharing
the proper;ties;.gVp:li’and L13-ed the old aged
defendan it 1″ has suffered mentally
and due to harassment of
sheshagpé v.anld__ldeilf”eridant No.6 who made his life
Latev-Sheshappa even tried to kill defendant
fire and criminal proceedings were
linitiatedlagainst him. Since then, the ls” defendant was
und”er_A’i~the fear of death and used to act as per the
*w_is,hes of Sheshappa only to avoid untoward incidents
fin the family. Defendant No.6 taking undue advantage
of the defendant No.1_’s condition and health coeiéeiveiy
under threat got executed partition deed excittdingidthue
Sheshappa. The contents of the said ”
true and correct and the SaIt’1€:’iS”T10t in
View of the facts and
No.1 has sold the “‘St5irVeyf’
Nos.131/D/1 m€aS”t;t1-.i._ng to the
defendant No.7 for is binding
on all the and ide’feftdan.ts._2,;t0 6.
idieferitdant filed a separate written
statefnent. case that the suit schedule
properties–,aI’e not§.Q’i1i.t~’i’fami1y properties. They are the
se:If=~a{;:c:1ui,red A’151′(3vp.er”ties of Tippanna, the 1.5? defendant.
the relationship between the parties
pleadiedil in the plaint. After denying all the
allegations in the plaint, the 6″” defendant has
u”Vi.AA’s1deAeifica11y pleaded that the husband of the plaintiff
it ___§N0.1 and father of Plaintiffs 2 and 3 by name
_;Q_
partition deed has been entered into among the l5′ and
2nd defendant and 6″‘ defendant on 06.02.2002 at
Gangavati partitioning the remaining properties”, ‘A’
schedule properties in the said registered par.t1_tio’n4r:4deed
have fallen to the share of Tippanna 2′
i.e., the ire and 2nd defendaiits:A”ai1§’d
properties have been fallen sharedofi’
defendant. Out of the eeiefpropeir:ie’e,i-I Weed 2nd’
defendants have sold:_t’he 131 /D
measuring 3 acres E'(3~.iv.’Oii}1\~:;:.’g:1v..’.E\/iadhL1SLld}’18.l’1El
Rao’s: \?Vlf€:iAibjxf-V’IflvE};lT1’l€”:*.S’E,’i1fIlEtlZl’lEl, the 71-” defendant. The
laintiffs 4have=._no.’ ‘1’iifl1_t.”to uestion the aforesaid sale.
I3 .p . .3 (3%
Therefore, ‘it’-WfC1s”‘contended that the suit of the plaintiffs
gifor and separate possession is not
1″ . 1ri’aintair_iabl.e’;
” The 79″ defendant fiied a separate written
«statement contending that 1*’ defendant, being the
___;§Kartha of the family, has executed a sale deed in their
-11″
favour for a valuabie consideration in order to meet the
family necessities which is binding on an the plaintiffs
and defendants 2 to 6.
8. On the aforesaid pleadings,
framed the foilowing six issues and_t\p2i¥’o._ ad’dit’ioi1*ia1’i
issues which are as under:
1) Whether the plaintiffs prove that’ the?’
suit schedule p1=so:pV-erties
family propertiesfl
1’2) .:\./ilheitféfiier No.6 proves that
i i’ i_ the dmieasesdiiiSheshappa has separated
“fr_orh_the fahgily during his life time?
Whe’th–er’ valuation of the suit
‘«.spVipr_operties and the payment of court fee
~., _ V Eiorre ct?
p Whether defendant N03″? proves that
if she is the bonafide purchaser of
Sy.No.131/D/1 of Gangavathi?
-12r
5) Whether the plaintiffs are entitled to___
1/4″‘ share in the suit schedueiie-.._’ii~.._
properties?
6) What decree or order_?~~
Additional Issues:
1) Whether the p1ai°n..1;iffsV prove:’thati:’:suit
si.No.1 es of 1:-f1aiVri’t..«schediuie are
the self iac.q_uii1r.eid;’ of iate
Sh eishappa “S Ti/liedar?
2) further prove
iiii .ti»;«.=;f’ Registered saie Deed
A ~ dated 07/08/02
4′ “€X’eVi:'{1’VJ-.tf.€’V(-I45 defendants in favour of
ii’defe.ridaritii”‘i\Eo.’7 is not binding on
théinv? …. ~ =
order to substantiate their ciairn,
I\/iianjiainaih, the 2nd plaintiff was examined as PW~1 and
“two vifitnesses were examined as PWWQ and PWWS. On
itghehalf of the defendants, 6*” defendant was examined. as
DW~1 and he has examined four vvimesses as DWS. 2 to
%/it
dies
the saie deed executed by IS’ defendant in favour__._of 7th
defendant dated 07/08/2002 is not binding
Thus, it decreed the suit of the plaintiffs’
respect of Survey No. 131 / D/ 1 it
by the said judgment and Vdecr1ee__
defendant is in appeal.
11. The learned.. the appellant
assailing the contends
that the member of the
joint to the date of the suit.
Thereggprieéé hischeduie properties are at}
either joint t’arni-1yiprop~erties or seif acquired properties
oef:i_:’E’iqe_..iiV:}tH’.__defendan«t’and other defendants, the plaintiffs
the same. in fact to prove the factuin of
partition’,t”3.t*ai?o witnesses have been examined. In fact,
Ex.}32_i’1-is also produced to show that the mutation
‘ve,nti’ies were made in the name of Sheshappa in terms of
___5the partition. The trial Court has misread the whoie
t//
evidence and committed a serious error in not accepting
the partition pleaded by the 6′?’ defendant and
he submits that the judgment and decreefrofv
Court requires interference.
12. Per contra, V’ie’arned”-..iCoVunseI_:.__for_:§
respondents supported and
decree of the trail L A.
It is pendency of this
appea}, Therefore, his
1 Section 8 of the Hindu
Succesision 1 iegai heir ie, that share
cotjdd be wor-ked”out during final decree proceedings.
in~–.the light of the aforesaid facts and rival
‘eonten.tion_s:,i the point that arise for consideration in
this’~appea1 is as underr-
“Whether Sheshappa, the 21*” son of
Tippanna, 181- defendant ceased to be a
-16,
member of the joint family after he was given
his share in the family properties about 20
years prior to the date of the suit?”
14. The pleadings of the parties makejit’c.1hea.r:the~.
relationship between the parties is not 1}’: ._
defendant, the Karta of the fhas I categori_ca1;1yA
stated in the written siiate.me1″it~.. that fail the
schedule properties are th_e”-jVoi:i_»t famihi properties.
whereas the 5m deferidam”.r;oiiteri’ds that the properties
in ques’tiori”j;are’;”se§*f_’acqi:’i’req’ properties of the IS!
defentia1it._aridiitherper.are:riVo joint famiiy properties. The
181 d_efend”ar1t’ in_’vt_he-._Wi=–i”tten statement has categorically
both”his’Vsecorad son Sheshappa and the 63*
‘Ci.e.fe:3c[a’:i’E:”i’we1je quarreiirig with him demanding for
fact, Sheshappa went to the extent of
settii1g__t’i.re to the father as he was not given a share in
th_e_’f.-‘properties. However: the 6*” defendant contends
V. _..that Sheshappa has been given a share immediately
3,/’
_17_
after his marriage by Tippanna, which is about 20_years
prior to the date of the suit. According
defendant, only one landed property,
property and one piot are
said partition and a sum
given. It i.s the specific case”oi:”the he’
has sold Item No.’:i3″i/D/iii’iiI%;.§i:”eopangaiéathi to 7m
defendant to rneet of the family.
However, gito iihthie Sheshappa
gave v’:Shiejshappa at the time of
partit:ion__i Admittedly, so called
writing. Even the date of
partition is notisitated. There is nothing to indicate that
. “the said pairtition was acted upon and any mutation
‘ ~.ei1.trie’s«Werejrnade in the name of Sheshappa in respect
of.i”pro’pAer’t’iies which are given to him. The only entry in
Aim-ea name of Sheshappa is in the year 2005 i.e., after
of the suit, after his death as per Ex.D2 in respect
of two items of the suit schedule properties. Taking
yr
_]8c
advantage of the same, the plaintiffs are contertding
items 1 and 2 are the self acquired proper’ti:ep_s:”~of
Sheshappa. Therefore, it is clear from ‘
record and the conduct of the
prepared to go to any
properties. Under these off’
the 1st defendant,
The triai Judge on on record
has rightiy properties are
Joint farnilfif and 2 are not the self
acqui_red_! as contended by the
pia.iI-lti’f’fS_”” » no partition under which
Sheshappa was Vsent out of the family 20 years prior to
if ‘tithe of’«the suit. As admittedly all the suit Schedule
i”~.p’ir–oppertiI’e.s the joint family properties, father and
th4r”ee”~–sons” constituted the joint farnily in which they are
nentitleid to 1/4″” share in the suit schedule properties
Aigeixcept one of the property i_.e., Ssurvey No.13}./D/1
H which has been sold in favour of 7″‘ defendant for legal
_;g_
necessities which is binding on all the members Qf the
joint family as admitted by the W defendant.
View of the matter, we do not see any r;1″e’rit~.ai Ii-ttthis
appeal. Ac:c0rding1y,the appeai:ia”d’i’erI}i.t3se_(j”_ ‘iv
t§UDGE
ea/~
33333