IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA DATED THIS THE O5TFI DAY OF JANUARY. 2010 PRESENT THE HON’BLE MR.JUSTICE N.KUMAR AND THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA RF.A,NO.278 OF 2006 BETWEEN BASAVARAJAPPA S/O CHANDRA RAI MALI PATIL AGED ABOUT 65 YEARS AGRICULTURIST R/O AMARAVATHI VILLAGE P0 JANEKAL TALUK MANVI DIST RAICHUR 2. MAHADEVAPPA Sb CHANDRA RAI MALI PATIL AGED ABOUT 47 YEARS AGRICULTURIST R/O AMARAVATHI VILLAGE P0 JANEKAL TALUK MANVI DIST RAICHUR 3. VEERABHADRAPPA Sb CHANDRA RAI MALI PATIL AGED ABOUT 45 YEARS AGRICULTURIST R/O AMARAVATHI VILLAGE P0 JANEKAL TALUK MANVI DIST RAICHUR 4. JAMAMTJA REDDY 5/0 CHANDRA HAl MALI PATIL AGED ABOUT 43 YEAS AGRICULTURIST R/O AMARAVATHI VILLAGE -2- P0 JANEKAL TALUK MANVI DIST RAICHUR 5. PAMPAPATHI Sb CHANDRA RAI MALI PATIL AGED ABOUT 37 YEAS AGRICULTURIST RIO AMARAVATHI VILLAGE P0 JANEKAL TALUK MANVI DIST RAICHUR 6. SMT SUBHADRAMMA D/O CHANDRA RAI MALI PATIL W/O LAXMANAGOUDA AGE: MAJOR R/O GANGAPUR VILLAGE, TQ MANVI DIST RAICHUR 7. SMT MAHADEVAMMA @ MAYAMMA Dj’O CHANDRA RAI MALI PATIL W/O LATE SIDDANNA CHIKALPARVI AGE: 49 YEARS R/O AMARAVATHI VILLAGE TQ MANVI DIST RAICHUR 8. SMT PARVATHAMMA D/0 CHANDRA HAl MALI PATIL WI0 PARAMESI-LAPPA AGE: 33 YEAS R/O KAVITHALAM VILLAGE, MANDALAM ADONI DIST KURNOOL A.P 9. SMT HAMPAMMA W,/O VEERABHADRAPPA MALI PATIL AE: MAJOR AGRICULTURIST R/O AMARVATHI VILLAGE TQ MANVI DIST RAICHUR 10. SMT SAROJAMMA W/0 MAHADEVAPPA MALI PATIL AGE: MAJOR 0CC: AGRICULTURIST R/O AMARAVATHI VILLAGE, TQ MANVI DIST RAICHUR ... APPELLANTS (By Sri. VEERESH B.PATIL, ADVOCATE) -3- AND 1. SMTAMBAMMA W/O LATE SOMAPPA MALI PATIL AGED ABOUT 65 YEARS 0CC: HOUSEHOLD AND AGRICULTURE RIO AMARAVATHI VILLAGE, NOW AT RAMATNAL VILLAGE. TQ SINDHANUR DIST RAICHUR 2. SMTGANGAMA D/O LATE SOMAPPA MALI PATIL AGED ABOUT 45 YEARS R/O DEENASAMUDRA VILLAGE, TQ SINDHANUR DIST RAICHUR 3. YENKANGOUDA S/0.ERAPPANGOUDA POLICEPATIL AGE: 49 YEARS 0CC: AGRICULTURIST R/O.UPRAHAL TQ. & DIST. GULBARGA. 4. VEERANNAGOUDA S/0. ERAPPANGOUDA POLICEPATIL AGE: 37 YEARS 0CC: AGRICULTURIST R/O.UPRAHALTQ. & DIST. GULBARGA. ... RESPONDENTS (By Sri. HANUMANTHAREDDY SAHUKAR, FOR R-1 & R-2: Sri.ASHOK S.KINAGI FOR R-3 & R-4) TWA FILED U/S 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 17.12.2005 PASSED IN 0.S. NO. 12/2001 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN.) AT RAICHUR, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. This RFA, coming on for hearing, this day, KUMAR J., delivered the following: -4- JUDGMENT This is defendants appeal against the judgment and decree of the trial court which has decreed the suit of the plaintiffs as prayed for. 2. For purposes of convenience, the parties would be referred to as they are referred to in the original suit. 3. The ‘A’ schedule properties are agricultural lands situated at the village Amaravathi, ‘B’ schedule properties are house properties and ‘C’ schedule properties are tractor and trailer. The I plaintiff is the mother and II plaintiff is her daughter. Their case is one late Somappa, S/o.Mahadevappa Mali Patil was the husband of plaintiff No.1 and father of plaintiff No.2. The said Somappa Mali Patil died intestate on 19.5.1999 in joint status with defendant Nos. 1 to 5. The said Somappa Mali Patil was having an elder brother by name Chandra Raya © Chandrappa who was the father of defendant Nos. 1 to 4. To put it short, one Mahadevappa was the original propositus who died long 1, -5- back leaving behind his two Sons namely Chandra Raya — father of defendants 1 to 4, Somappa — husband of plaintiff No. 1 as his legal heirs and successors. After the death of Mahadevappa, Chandra Raya and Sornappa were co-parceners of the Hindu Joint Family. The said brothers were owning and possessing the plaint schedule properties which are their ancestral properties. Chandra Raya died intestate about 20 years back leaving behind his widow Smt.Earamma and defendants 1 to 4 as his legal heirs. The said Earamma also died about 15 years back leaving defendants 1 to 8 as her legal heirs and successors. Thus, Chandra Raya and his wife died in joint status in the family. Even after their death, Somappa and defendants 1 to 3 continued their joint family status by enjoying suit properties in jointness. 4. The plaintiff No.1 is the legally wedded wife of late Somappa and plaintiff No.2 is the only daughter and issue of plaintiff No.1 through her husband Somappa who died intestate on jointness on 19.5.1999. -6- The said Sornappa on the date of his death was having half share in the suit properties and after his demise, plaintiffs have succeeded and inherited the share of late Somappa as Class I legal heirs under the provisions of Hindu Succession Act, 1956. Therefore, the family of the plaintiffs and that of the defendants are Hindu joint family owning and possessing the plaint schedule properties. 5. By way of amendment, para 6(a) was added to the original plaint. It was pleaded therein that Chandrappa and Somappa were having a sister by name Shankramma and this Shankramma was given in marriage to one Pampanna of Ramathnal village who is the cousin brother of plaintiff No.1. The father of plaintiff No.1 and said Pampanna’s father were direct full brothers. The younger sister of plaintiff No.1 by name Shankramma was given in marriage to one Rudrappa of Amaravathi village. This Rudrappa’s father Bheemanna and father of Chandrappa and Somappa by name Mahadevappa are full brothers. The said -7- Rudrappa’s daughter by name Akka Nagamma was given in marriage to the younger brother of plaintiff No.1 by name Amarappa. Thus, the parental family of plaintiff No.1 and her in-laws family are related since long. The plaintiff No.2 is having a daughter by name Sarojamma who figures as defendant No.10 in the suit who is the wife of defendant No.2 — Mahadevappa. In the plaint they have set out their family pedigree. 6. During the lifetime of Somappa there was some family matrimonial discord between plaintiff No.1 and her husband Somappa. Therefore, plaintiff No.1 was residing in the house of her parents at Rathnalal village, Sindhanur Taluk. Plaintiff No.1 had also filed a maintenance case before the JMFC court, Manvi against Somappa. Plaintiff No.2 was staying with her father Somappa at Amaravathi village and she was got married by her father Somappa to one person of Deenasamudra village, Sindhanur Taluk. Therefore, after the marriage, plaintiff No.2 is staying with her husband. -8- 4 7. The plaintiffs and defendant Nos. 1 to 5 are owning In all 7 landed properties which are described In the plaint schedule ‘A’ and also two house properties which are described’ In ‘B’ schedule, one tractor and trailer which Is described In ‘C’ schedule. 8. DurIng the lifetime of Chandra Raya, he had In collusion with his sons - defendants 1 to 5 got unfounded and ifiegal mutation entry No.9 dated 1.3.1977 by changing the khata of 6 lands described at SLNos. 1 to 6 In the schedule ‘A’ to plaint in the names of defendants 1 to 5 by representing false facts before the revenue authorities and without the knowledge of the plaintiffs and said Somappa. The said impugned entry No.9 shall not confer any rIght or interest In the landed properties In favour of defendants 1 to 5. The said Somappa throughout his life stayed with defendants 1 to 5 as co-parceners of Hindu joint family and he died In joint status. 9. Defendants 1 to 5 made another unfounded and illegal mutation entry No.62 dated 15.11.1979 regardIng -9- another land in Sy.No.58 to an extent of 14 acres 2 guntas in the names of defendant Nos. 2 and 3 by gaining confidence of the revenue officer and without the knowledge of plaintiffs and late Somappa. The second mutation entry is also illegal and such entry will not confer any rights in the landed property in favour of defendants 1 to 3. They also got a third entry No.27 dated 10.2.1982 in the name of some of the defendants which also do not confer any rights on them. On coming to know of the aforesaid mutation entries, plaintiffs preferred appeal petition No.60/2000-200 1 before the Assistant Commissioner, Raichur and the said proceedings were still pending. 11. After the death of Somappa, the relationship between plaintiffs and defendant became strained and it has become very difficult and impossible for the plaintiffs to continue in joint status and an immediate partition had become inevitable. The defendants 6 to 10 have no rights whatsoever in all the suit properties. Inspite of the same, defendant Nos. 6 to 10 have got - 10- some illegal mutation entries in respect of some other suit lands. The joint family property is an affluent family without any debts or liabilities. All the suit lands are well developed and irrigated under TDB command Area and the paddy crops are being grown. After the death of Somappa, plaintiffs requested the defendants to effect partition and give them 50% towards their share. It was denied. Therefore, plaintiffs have filed a suit for partition and separate possession of their 50% share in all the plaint schedule properties. 11. After service of summons, defendants entered appearance. In the written statement filed at the first instance I defendant pleaded that the contention of the plaintiffs that deceased Somappa Mali Patil was the brother of Chandra Raya © Chandrappa and that Somappa Mali Patil was the son of Mahadevappa Mali Patil as false and baseless. The deceased Somappa Mali Patil was in no way concerned to defendants 1 to 5 family or their father. Therefore, there arises no question of joint status with defendants 1 to 5. The -11 allegation of the plaintiffs that after the death of Mahadevappa, Chandra Raya and Sornappa were the co-parcener of the Hindu joint family and were owning and possessing the plaint schedule suit properties which are their ancestral properties are all false and baseless. The suit schedule properties were exclusive properties of Chandra Raya Mali Patil — father of defendants 1 to 5. During his lifetime, defendants 1 to 5 got divided and accordingly mutation came to be effected in the year 1977. Subsequently, further mutations have taken place as per the family adjustment. The plaintiffs have no right over the said properties. The allegation of plaintiffs that Chandra Raya and his wife died in joint status in the family of Somappa are all false and baseless. The plaintiffs have created a false story in order to suit their claim. Somappa Mali Patil is in no way concerned with Chandra Raya. The family pedigree shown is false and baseless. The plaintiffs have falsely shown Somappa as the son of Mahadevappa and brother of Chandra Raya. 4 1’ The mutation effected on all the three occasions refer to the plaintiffs are legal and valid. The filing of die appeal challenging those mutation entries by plaintiffs are false. They contended that defendants are in exclusive possession of the property. The plaintiffs have no right over the same, plaintiffs’ suit is liable to he dismissed. Defendants 2 to 10 adopted the written statement filed by defendant No, 1 12. After framing of the issues, defendant No. I filed an application for amending die written statement which was numbeird as IA No,8. It was filed on i2a 2003. It was an exhaustive amendment application filed for deletion of die pleas in the original written statement and to substitute the plea raised in the amendment application in place of the deleted pleas. They had denied the fact that Somappa Mali Patil was the son of Mahadevappa and brother Chandra Raya. It is that plea. which they want to delete and in place in categorical terms they admit Somappa Mali Patil is the son of Mahadevappa and the brother of Chandra Raya the father of defendants I to 5. 13- Secondly, in the amended plea they deny that I plaintiff is the wife of Somappa Mali Patil and 11 plaintiff is the daughter of Somappa Mali Patil. On the aforestated pleadings, the trial court has framed the following issues and two additional issues are framed after the amendment which are as under: 1) Whether the plaint[fs prove that the husband of the late plaintff No.1 and father of plaintiff No.2 late Somappa was the son of the deceased Mahadevappa? 2) Whether the plaintffs prove that, all the suit schedule A, B and C properties are the ancestral and joint family properties consisting of themselves and the defendants? 3) Whether the plaintjffs prove that they are entitled to a share in all the suit schedule A. B & C properties, and f so. to what share? 4) Whether the valuation of the suit made by the plaintJfsfor the purpose ofpayment of court fee is proper and the court fee paid is proper and sufficient? 5) Whether the suit of the plaintiffs is in time? 6) Whether the plaintiffs are entitled to the relief soughtfor? - 13- 7) What decree or order? Additional issues: 1) Whether the plaintfjNos. 1 and 2 prove that they are the wtfè and daughter of late Somappa Malipatil? 2) Whether the defendants prove that Sornappa Mali Patil died unmarried and after his death they have succeeded to his share in the suit property? 13. The plaintiffs have filed rejoinder re-iterating the earlier allegations and denying the case of the defendants. 14. The plaintiffs in order to substantiate their claim examined I plaintiff as PW 1 and they examined four witnesses Shankar, M.Virupakshappa, Hanumanthappa and Rachana Gouda as PWs. 2 to 5. They produced 68 documents which are marked as exhibits P1 to P68. On behalf of defendants, I defendant Basavarajappa was examined as DW1. They also examined two witnesses Mudukappa and -15- Shekharappa as DWS. 2 and 3 and they produced 49 documents which are marked as exhibits Dl to D49. 15. The trial court on appreciation of the aforesaid oral and documentary evidence on record held that plaintiffs have proved that Somappa Mali Path was the son of deceased Mahadevappa and the brother of Chandra Raya - father of I defendant. They also proved that ‘A’, ‘B’ and ‘C’ schedule properties are ancestral joint family properties. They have also established that they are entitled to half share in all the plaint schedule properties. The court fee paid Is proper, the suit Is properly valuated, the suit Is in time. The plaintiffs have established that they are wife and daughter of late Somappa Mall Path. On the contrary, defendants have failed to prove their case that Somappa Mall Path died unmarried and that after his death they have succeeded as sharers in the suit properties being the near relatives. Thus, decreed the ..suit of the plaintiffs. Aggrieved by the said judgment and decree, the defendants are in appeal. 16 - 16. In fact, this appeal came to be dismissed on nit rits earlier hi this court which judgment and dcc ree was chalk nged h the appellant before the I lon’hlc Supreme Court, It has set aide the judgment anti decree ?assed earlier hi this court and remanded the matter back for fresh consideration in accordance with law. 17. Suhsequenth, an application is filed by the clnldren of late Parvatainma - daughter of Mahadevappa to conic on record, which application has been allowed and the have been impleaded as parties in this appeal for the first time The application filed hi Basmnma — another daughter of Mahadevapa to come on record has been dismissed. 18. Sn Veeresh B Patil, lear ned counsel appeanng for the appellant assaih ig the judneut and decree of the traii court contends, n hen the defendants have eategoneaIh d’Mlid that the I plaintiff ts not tire wife of Sonappa Mali Patil and II plaintiff s not the daughter of Suniappa Mah Paul and i hen a speerfie issue is raised 17 - regarding tins relationship, the entire burden to prove the said issue ras on the plaintiffs The plaintiffs havc not proved the man iage, no doeumc utan or other evidence is adduec d to slio that I plaintiff and Somappa Mali P’itil lived under a roof as husband and ii ife for inn length of time, But inspite of no evidence being available on record, the trial court committed a sc dons error rn holding that the I plaintiff is the xi lie and H plaintiff is the daughter of Somappa Mali I aol, Therefc re, he contends that the judgment and deerte of’ the trial court requires to hr set aside and the suit of the plaintiffs is to be disunssed as the are total strangers to the laniilv. 10, Per contra, lear ned counsel appe anng tor rr spondents supported the nnpured judgment and de ‘ice, 20. in th light of the atorc said contentions, the penn s that arise for consideration in tins appeal arc a nuder 18 (1) Whether the findings of the trial court that I plaintiff is the ‘. ife and Ii plaintiff is the daughter of Soniappa Mali Patti rails for am interference? (ii) If plaintiffs are held to he the v.ife and daughter of Somappa Mali Path, ‘.‘.hat is the share to which the’.’ art entitled to in tin plaint scheduk properties in view of fix change in the law of succession? PontN 1: ) I. The material on record discloses that one Maizradevappa was tire propositus, he had tw’. s( ns l trainc (‘h india Ra a and Sornappa and five daughters by narr e Shankerarnian, Amramrna, Charmannna, Panrathanima and Basanrma M thadcvappa and his two sons constitute a co parrenery. Admittedly, all the plaint schedule properties art jourt family properties. During tire lifetime of Mahadevappa there was no partitror’ He died in tire ; ear 1958 After his death 19 Chandia baa and Sornappa Ins two seas co pareeners continued and the sched ale properties fell to their share in i a of stnvworship. Chandra Rava died in the iear 1979. After his death his five sons — defendants t to 5 and Somappa continued as joi it famil members enjoyed all hc plaint schedule 1 ffopertics. In the year 1098, Somappa Mali Patti died 22. Thc plaintiffs claim that I plaintiff was married to Somappa Mali PaUl about 10 to 45 years prior to U e date of the suit and in the said wedl rk liii II plaintiff was born. The evidence on record discloses, I plaintiff lived with bet husband for 10 ears tn the village Aniaravatrlr, Thereaftet bekering arose She went to her parents’ hons whereas the daughter contin a d with the father. The vi b nec on rcc ord shiws that t te II plaintiff was married to one ‘nrnpakshappa (PWS; She has a daughter name Sarojarnma who is the IC defei idant in this ease w ho is married to 11 defenda t Mahadevappa APe’ the leath of Somappa in the year 1998, plaintiffs put forth their claim for half share in -20- the still setvdule projxrtles. When It was thnled. they have flk.d a suit. In the written st1temcnt flkd in the ft st iistana dekndants went to the c’ckit of den)lug relitlonsiiip of somappa Mali PatiL Thes specificalli contented, Somappa Mall I atil is not the brother of (tundra Rsa father of defendants 1 t - and he Is not flit son of Mahadevappa. Though in the plaInt It Is categoiieafl> pleaded hat plaintiff No.1 is the aifr of ‘omappa and plaintiff No 21s the daughter of Soniappa, hi the entire written statement flied In the first instance that relationship was not denied cven b3 Implinticn Alter the I%StaCS were framed inter sense pitvailed on the leftndants. Thes nalized that the) have taken c)htItme step I dern ing their relatlonslup with Sniappa Mali PafL Thtrcfort, the) filed IA To S for acletion of that plea hi ti e )riglnal wri te i tatem nt where the’ had dernc d n htionshlp a Ith ‘3omappa Mali Path and they categorirdli pleaded Somappa Mali Path ic the brother of (‘handia Raia and son of Mdhadevappa. Howc’vn, this tune tlit3 (wintd tue. 21 relationship of 1 plaintiff with Somappa as wife of H plaintiff with Somappa as the daughter. This denial was not found in the ear icr written statement, Therefore, an additional issue came to be framed. in this h.aekgronnd, what emerpes is, it is not in dispute that Chandra Rava and Somappa were the sons of Mahadevappa and they constitute the joint family, all the plaint schedule properties were the joint family properties, between them, there was no partition. Therefore both Chandra Rava and Somappa have 1/3 share in the suit property to which Somappa was entitled to. The remaining 1/ 3 being the share of Mahadevappa as he died in the year 1958 after coming into force of the Hindu Succession Act, 1956. 23. .it is in this background we have to find out whether plaintiffs have succeeded in proving the relationship, it is very easy for the de.fendants in the written statement to deny the mutual relationship which emne into existence about 40 to 50 years back. Admittedly, parties to the litigation are all rustic 22 - villagers, not educated and the marriage having taken placc.. nearly about 50 years back. Therefore, the evidence of witnesses who saw the marriage and the marriage which was performed at that point of time cannot be so easily he brought on record as evidence in a court of law. Similarly, the evidence on record shows after 10 years of the marriage and birth of the child, I plaintiff was driven to her’ parents house. Therefore, admittedly, she has not lived with her husband thereafter. Therefore, any documentary evidence by way of ration cards, voters list, voters identity card or an other document is also not available on record. Therefore, for the last 30 to 40 years when they have not lived together after separation, insisting on the plaintiff to produce any documentary evidence in proof of marriage is asking for an impossible. In these circumstances, we have to find out whether the relationship pleaded is proved by other circumstantial evidence or by oral evidence. it is in this regard the I plaintiff has examined four witnesses. in fact defendant - ‘3 - No. I who is examined as DW I has c’ate.goncall admitted it. his evidence that his brother Maliadevappa has married tie daughter ofT p1 dntlff. The evidencc on record also shows several marriages Mw. taken place v.itlün the f’smth £ tie plaintiffs and the defeiithnts. In fact, cvidencc am record shows it is Bomappa Mall Patil aho performed the marriage of II plaintiff Ith Vlrupakshappa (PW3) in this case. Their daughter Is the % lie of II defendant in this case. It is unfortunate, when after the leath ofher husband wire ii the I plaintiff put forth the claim for her proptrty the3 ient to the exitiii of dcnshrg the relationship itselfand calling upon il I plaintiff to prove ircr marriage in rder to claim an qhare in the propertt. The len d judge of the trial court ins carifull a nsidi rcd widcna. of each of the witiasses and the admissions and conduct of tlic defendants In aithdrawing the earlier plea substituting a in plea in the nitten statement ant on appreciation of the same has iightlv held that plaintiffs have established the rriationshii & %ife and daughter with 24 the late Soinappa Mali Patil, The said finding is based on legl evidence and does not call for any interference. It is also well settled, when a finding is recorded by the trial court on apprec1aton of oral evidence only after observing demeanor of the witnesses which is deposed before the court and the said finding.: is a qua ston of fact, the appellate court should not lightly interfere with the said finding. We arc satisfied that the trial court committed no error in recording a finding of fact that I plaintiff is the wife of late Somappa Mali PatH arid H plaintiff is the daughter of Somappa Mali Path. The smne is bascd on legal evidence. Point. Na2: 24.