IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K. NATARAJAN REGULAR SECOND APPEAL NO.1604 OF 2012 (PAR) BETWEEN:
SRI. HALE GOWDRA ESHWARAPPA S/O MALLAPPA AGED ABOUT 60 YEARS R/O. ARUNDI VILLAGE-577223 KASABA HOBLI, HONNALI TALUK DAVANAGERE DISTRICT.
(BY SRI. V.B. SIDDARAMAIAH, ADV.,) AND:
1. SMT. BENAKAMMA D/O MALLAPPA AGED ABOUT 37 YEARS R/O. SIDDAPURA VILLAGE-577223 KASABA HOBLI, HONNALI TALUK DAVANAGERE DISTRICT.
2. SRI. HALE GOWDRA RUDRAPPA S/O VEERABHADRAPPA AGED ABOUT 55 YEARS R/O. ARUNDI VILLAGE-577223 KASABA HOBLI, HONNALI TALUK DAVANAGERE DISTRICT.
3. SMT. BASAMMA W/O JAGADEESHAPPA AGED ABOUT 65 YEARS ... APPELLANT R/O. KOTE ROAD HONNALI-577217 DAVANAGERE DISTRICT.
4. SMT. SHANTHAMMA W/O GANGAPPA AGED ABOUT 64 YEARS R/O. MALLIGENAHALLI VILLAGE HONNALI TALUK-577217 DAVANAGERE DISTRICT.
5. SMT. JAYAMMA W/O PRABHULINGAPPA AGED ABOUT 60 YEARS R/O. RAMESHWARA VILLAGE HONNALI TALUK-57727 DAVANAGERE DISTRICT.
... RESPONDENTS (BY SRI. S.V. PRAKASH, ADV., FOR R1, R3 TO R5 SRI. M.K. GIRISH, ADV., FOR R2) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DTD:23.3.2011 PASSED IN R.A. NO.6/2007 ON THE FILE OF SENIOR CIVIL JUDGE, HARIHAR, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DTD:29.11.2006 PASSED IN OS NO.102/2000 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) HONNALI.
THIS REGULAR SECOND APPEAL IS COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT This appeal is filed by the appellant /defendant No.1 assailing the judgment and decree dated 29.11.2006 passed by the Civil Judge (Jr.Dn.), Honnali, (hereinafter referred to as ‘trial Court’) in O.S.No.102/2000 having decreed the suit of the plaintiff and the same was up-held by the Senior Civil Judge, Harihar, (hereinafter referred to as ‘1st Appellate Court’) in R.A.No.6/2007 dated 23.03.2011.
2. Heard the arguments of learned counsel for the appellant as well as learned counsel for respondent Nos.1, 3 to 5.
3. The status of the parties before the Trial Court is retained for the sake of convenience.
4. The case of the plaintiff in brief before the trial Court is that defendant No.1 is the kartha of the joint family. Plaintiff is an unmarried daughter of the common ancestor Sri Mallappa. Defendant No.2 is the purchaser of the joint family properties from defendant No.1. The common ancestor Mallappa had 4 daughters and a son i.e., defendant No.1. Defendant Nos.3 to 5 are the sisters of the plaintiff and defendant No.1 who have got married long back and residing in their respective husband’s houses. The khata and pahani with respect to joint family properties were standing in the name of common ancestor Mallappa. After his death, khata and pahanies were mutated in the name of defendant No.1 as representative of the family by virtue of partition between H.Veerappa S/o Basappa and Mallappa s/o Basappa on 10.05.1985. Defendant No.1 is representing the family as kartha. Defendant No.1 being the kartha of the family has neglected the interest of the family and he sold 35 guntas of land in Sy.No.15/3 of Arundi Village in favour of defendant No.2 without any family necessity. When the plaintiff questioned the sale, he has openly expressed that he will sell all the joint family properties and also denied the share of the plaintiff. Hence, the plaintiff got issued legal notice to defendant No.1 on 18.04.2000. Plaintiff being an unmarried daughter of the common ancestor Mallappa is entitled for ½ share in the entire suit schedule properties. Hence, she filed a suit for partition and separate possession and declaration.
5. Pursuant to the notice issued to the defendants, defendant No.2/purchaser did not choose to appear and contest the case and remained exparte. Defendant Nos.3, 4 and 5 who are sisters of the plaintiff have filed the written statement by admitting the plaint averments and prayed to carve out their shares in the suit schedule properties.
6. Defendant No.1 (appellant herein) has filed the written statement by admitting his relationship with the plaintiff and defendant Nos.3 to 5 and he has denied the averments made in the plaint as false and has contended that the plaintiff is not a co-parcener of the family as there is no joint family and she is not entitled for any share in the suit schedule properties. It is further admitted that he sold 35 guntas of land in Sy.No.15/3 of Arundi Village in favour of defendant No.2, but it was for legal necessity of the family. Further he contends that the suit B schedule property is not belonged to their family. He also contended that the plaintiff has left the house long back without any information and while going out of the house, she has taken away cash of Rs.30,000/- and jeweleries weighing 200 grams from the house of defendant No.1. The plaintiff is now residing at Siddapura Village, Honnali Taluk and running a hotel and petty shop and a residential house has been granted to her under the Government Scheme. The plaintiff has not produced any document to show that she is the member of the joint family and even her name is not found in the voter list of Arundi Village. The suit is filed after lapse of more than 20 years after plaintiff left the house. Hence, he prayed for dismissal of the suit.
7. On the rival pleadings of the parties, the trial Court framed the following issues:
1. Whether the plaintiff proves that the suit schedule properties are the joint family properties and that she is one of the coparcener with the 1st defendant?
2. Whether the plaintiff proves that the D.1 is trying to sell the suit schedule property to the 3rd person?
3. Whether the plaintiff proves that the sale deed executed by the D.1 in favour of the D.2 is not binding on her share in the S.S. properties?
4. Whether the plaintiff proves that she is entitled for the mesne profits?
5. Whether the D.1 proves that the plaintiff left the house about 20 years back and that she is not entitled for partition?
6. Whether D.1 proves that the plaintiff had taken away a cash of Rs.30,000/- and the jewels weighing 200 gms., fro, his house?
7. Whether the suit is bad for non-joinder of necessary parties?
8. Whether the Court fee paid is sufficient or not?
9. Whether D.1 proves that the B-Schedule property does not belong to the joint family?
10. Whether the plaintiff is entitled to any share? If so to what extent?
11. What order or decree?
ADDL. ISSUE FRAMED ON 21.06.06 “Whether the D.3, 4 & 5 are entitled to get notional portion in the suit schedule properties?”
8. To substantiate the case of the plaintiff, plaintiff examined herself as P.W.1 and examined one more witness as P.W.2 and got marked 13 documents as Exs.P.1 to P.13 and on behalf of the defendants, defendant examined himself as D.W1 and examined two more witness as D.Ws.2 and 3 and defendant No.3 examined as D.W.4 and not marked any documents.
9. After considering the evidence on record, the trial Court answered issue Nos.1 to 3, 9 and 10 in affirmative, issue Nos.5 to 7 in negative and addl. issue in affirmative and issue No.4 in respect of mesne profit. It is held that a separate enquiry is to be conducted to calculate the exact mesne profits. Ultimately, decreed the suit by holding that the plaintiff and defendant No.1 are entitled for partition and separate possession of 1/3rd + 1/15th share each in suit A schedule properties and defendant Nos.3 to 5 are entitled for partition and separate possession of 1/15th share in the remaining 1/3rd share of each in suit A schedule properties. However, the trial Court has not granted any share to the plaintiff in suit B schedule properties, which is a house property and declared that the sale deed dated 04.05.2000 executed by defendant No.1 in favour of defendant No.2 in respect of 35 guntas of land in Sy.No.15/3 of Arundi village, Honnali Taluk, is not binding on the share of the plaintiff and defendant Nos.3 to 5 by judgment dated 29.11.2006. Assailing the said judgment and decree, defendant No.1 filed an appeal in RA.No.6/2007 before the Senior Civil Judge, Harihar. After hearing the arguments, the 1st Appellate Court dismissed the appeal by confirming the judgment of the trial Court vide order dated 23.03.2011. Assailing the concurrent findings of the court below, the defendant/appellant is before this Court by way of second appeal.
10. Learned counsel for the appellant has contended that both the court below has committed error in decreeing the suit of the plaintiff by granting share to defendant Nos.3 to 5 even though they have not paid any court fee as per the Karnataka Court Fee and Suits Valuation Act. The plaintiff left the house 25 years back and she is residing in Siddapur Village and running a hotel and petty shop. The Government has granted residential house to her and she is not at all a co-parcener of the joint family. As per the admission of the plaintiff in her cross-examination, her father died long back. In respect of sale, the trial Court as well as 1st Appellate Court decreed even though she is not entitled for any share in the suit schedule property. The substantial question of law is involved in this appeal. Hence, he prayed for allowing the appeal.
11. Per contra, learned counsel for respondent Nos.1, 3 and 5 has supported the judgment of both the courts below and has contended that the plaintiff and defendants are the sisters and brother and defendant Nos.3 to 5 have not disputed that the plaintiff is an unmarried sister and in view of the amendment to Section 6 of the Hindu Succession Act, 1956, commenced from 2005, unmarried daughter is entitled to equal share as that of son as co-parcener of ancestral property. Defendant Nos.3 to 5 married long back prior to the commencement of Hindu Succession (Karnataka Amendment) Act, 1996 w.e.f.1994. Such being the case, the trial Court notionally partitioned 1/3rd each as share for defendant No.1, to their father and defendant No.1, and in view of death of their father, defendant Nos.3 to 5 are also entitled for 1/15th share in 1/3rd of their father’s share. Therefore, absolutely, there is no illegality committed by the trial Court in granting the share to the plaintiff. The contention of defendant No.1 that the plaintiff has taken Rs.30,000/- and 200 grams of gold has not been proved. The partition was effected between the plaintiff’s family and one H.Veerappa in the year 1985 and the said Veerappa was also examined and he supported the case of the plaintiff. This aspect is not denied by defendant No.1 in the written statement. Any pleading without evidence is not acceptable. It is further contended by the learned counsel for the petitioner that there is no substantial question of law involved in this appeal to interfere and hence, he prayed for dismissal of the appeal.
12. Upon hearing the arguments and considering the evidence on record, which go to shows that it is not in dispute that one Mallappa was the propositor of the parties who is the father of plaintiff, defendant No.1 and defendant Nos.3 to 5.. There is no evidence as to on which date the said Mallappa died. However, plaintiff and defendant Nos.3 to 5 are the daughters and defendant No.1 is the son of said Mallappa and their mother also died as per the genealogical tree produced herein. It is also not in dispute that the plaintiff is an unmarried daughter of said Mallappa. The partition of the suit schedule property took place between defendant No.1 and Veerappa in the year 1985 after death of their father and the same is not denied by the defendants in their written statement.
Defendant No.1 being the son of Mallappa became the kartha of the family after the death of his father. Though, P.W.1 is said have admitted in the cross-examination that her father died 10 years back prior to the date of partition during 1985, in view of partition held between defendant No.1 and one Veerappa, Section 6(a)(b) and Section 6(a)(d) clause (b) of Hindu Succession Act, is not applicable to the daughter who married prior to the commencement of Hindu Succession Act. In this case, admittedly the plaintiff is an unmarried daughter, though the father died prior to the date of partition held in the year 1985, the defendant claims that there was partition between the plaintiff and father, but no documents are produced. The partition between the plaintiff and Veerappa clearly goes to show that father’s share fell to the share of defendant Nos.3 to 5. Such being the case, the contention of defendant No.1 that the partition was held between himself and father in the year 1974 cannot be acceptable. In view of commencement of the Karnataka Amendment Act, 1994, the plaintiff and defendant No.1 are entitled for share as co-parceners along with their father, the trial Court has rightly held that the plaintiff is entitled to 1/3rd along with 1st defendant plus 1/5th of 1/3rd share of their father=1/15th share, in suit A schedule property and defendant Nos.3 to 5 are entitled for partition and separate possession of their 1/15th share in remaining 1/3rd of their father’s each share in suit A schedule properties. Hence, absolutely there is no illegality or error committed by the trial Court in granting share of 1/3rd plus 1/15 in suit A schedule properties and has rightly rejected the case of the plaintiff in respect of suit B schedule property, which is a small dwelling house in occupation of defendant No.1 and declared that the sale deed dated 04.05.2000 executed by defendant No.1 in favour of defendant No.2 in respect of 35 guntas of land in Sy.No.15/3 of Arundi Village, Honnalli Taluk is not binding on the share of the plaintiff and defendant Nos.3 to 5. Even defendant No.2 was not contested before the trial Court, and not filed any appeal either before the 1st Appellate Court or before this Court aggrieving the judgment and decree of the trial Court in respect of selling of the property in his favour. Therefore, considering the evidence on record and the findings, absolutely there is no substantial question of law involved in this appeal to admit the appeal. Therefore, I hold the appeal is devoid of merit and it is liable to the dismissed.
Accordingly, the appeal is dismissed.
In view of dismissal of the appeal, I.A.No.2/2012 does not survive for consideration and the same is also dismissed.
SD/- JUDGE GBB/PB