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2020 Supreme(Kar) 1775
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
ASHOK S. KINAGI, J
SHANMUKAPPA S/O MALSHETTY GULEPPA M.BORAIAH - APPELLANT
Versus
SMT. UMMAKK W/O JAMBAIAH - RESPONDENTS
RSA NO.5739 of 2011 (PAR)
Decided On : 13-02-2020
For the Appellant : SRI.B.SHARANABASAWA, ADV.
For the Respondent: SRI.Y.LAKSHMIKANT REDDY, ADV.
Headnote:
Civil Laws – Suit for partition – Separate Possession – Whether trial court erred in giving negative finding on issue Nos.4 to 8 regarding oral partition and allotment of separate share to plaintiffs as averred in para-10 of written statement of contesting defendants – Whether trial Court erred in holding that plaintiffs each have got 1/7th share in suit schedule properties – Whether trial court erred in holding that suit schedule properties are joint family properties of plaintiffs and defendant Nos.1 to 3 – Whether trial court erred in holding that sale deed executed by defendant Nos.1 to 3 in favour of defendant Nos.4 to 6 in respect of item No.2 of suit schedule properties are not binding upon share of plaintiff – Whether trial court erred in not holding that suit is bad for non-joinder of necessary parties – whether Judgment and decree of trial Court requires to be interfered – Held, Trial Court after considering oral and documentary evidence on record held that defendants have failed to prove that there was oral partition in year 1979 and in said oral partition, first plaintiff has taken her share by way of cash of Rs.50,000/-and 80 grams of gold and 50 grams of silver from defendants No.1 to 3. – It is seen that defendant No.2 has clearly stated that partition took place and same was reduced into writing but defendant No.2 has not produced said document. – If at all said partition was reduced into writing on 14.04.2007, it ought to have been produced by defendant No.2 by way of an application for production of additional documents. – Moreover, present appeal is filed in year 2011 and appellant has filed this application after lapse of 6½ years. – Even on this ground also it creates a doubt in mind of Court as to whether this document was executed by parties to suit. – Appellant/defendant No.2 has not made any ground to allow application. – Application filed by appellant for production of additional documents is rejected. – Appeal Dismissed
JUDGMENT :
1. This appeal is filed by defendant No.2 challenging the judgment and decree passed in O.S.No.65/2006 dated 18.01.2010 which is confirmed in R.A.No.26/2010 dated 18.06.2011 by the Additional District Judge, Ballari.
2. The parties are referred to as per their ranking before the trial Court.
3. Brief facts of the case are that, plaintiffs filed a suit for partition and separate possession in respect of the suit schedule property. The original propositus Goolajja had three sons by name, Veeranna, Saneppa and Patribasappa. Sanappa has got a son by name Malesetty Guleppa, i.e., defendant No.1 and his wife by name Gowramma who is plaintiff No.4 in the suit. They got two sons and five daughters, i.e., Shanmukhappa defendant No.2, Erappa defendant No.3, Ummaka plaintiff No.1, Lalitamma, plaintiff No.2, Ratnamma died leaving behind Shivaraj plaintiff No.3, Siddamma plaintiff No.5 and his wife Gowramma plaintiff No.4. The contention of the plaintiffs is that the suit schedule properties are fallen to the share of Sannekappa, i.e., father of defendant No.1. The father of defendant No.1 was in possession and enjoyment of the suit schedule properties and after his death, plaintiffs and defendant Nos.1 to 3 are in joint possession and enjoyment of the same. Suit schedule properties are the joint family ancestral properties of the plaintiffs and defendant Nos.1 to 3. After the marriage of plaintiff Nos.1 and 2, they are residing in their respective husband’s house, the marriage of plaintiff No.2 took place on 10.04.1998 at Sasalavada village. Her husband expired about 5 years back and Rathnamma died leaving behind her only son plaintiff No.3-Shivaraj. There was no partition between the plaintiffs and defendant Nos.1 to 3. Defendant No.1 is the Kartha of the joint family. Suit schedule properties are standing in the name of defendant Nos.1 and 2. The plaintiffs requested the defendants to effect partition, but the defendants refused to effect a partition. Hence, the plaintiffs filed a suit for partition and separate possession.
4. Defendant Nos.1 to 6 appeared through their counsel. Defendant No.1 appeared in person and filed a memo stating that he has no objection to allot share to the plaintiffs. Defendant No.2 filed written statement and defendant Nos.4 to 6 adopted the written statement filed by defendant No.2. Defendant No.3 has not filed any written statement. It is the case of defendant No.2 that suit schedule properties are the joint family ancestral properties. Defendant No.2 contended that during the year 1979 there was oral partition among the members of the family in the presence of elders. Plaintiff No.1 had taken her share from defendant No.2 by way of hard cash of Rs.50,000/-in the presence of elders. She had no right to demand the partition under the Woman Rights to Property Act. Plaintiff No.2 had taken 80 grams of gold, 50 grams of silver and cash of Rs.50,000/-as her share from defendant No.2. Her marriage was performed by defendant No.2 by raising loan from moneylenders and he is still due to the villagers. Defendant No.1 has given one house bearing No.16/17 of Hirehagdal Grama measuring 30 x 13½ to plaintiff No.2 as a share. Mother of plaintiff No.4 is still alive, she is necessary party to the suit. Defendant No.3 is having RCC building at Kottur. Plaintiffs have not included the said house property. Defendant No.3 has sold the property fallen to his share to one Bidaracaddi Channabasamma for Rs.3,000/-under the registered sale deed dated 24.04.1981. The said property has not been included in the suit. Daughter of defendant No.1 died about 6 years back leaving behind her two sons namely, Shivaraj and Jambunatha. Plaintiffs and defendant No.3 have colluded each other and filed false suit against defendant No.1. Hence, prayed to dismiss the suit.
5. During the pendency of the suit, plaintiff got impleaded plaintiff Nos.5 and 6 and defendant No.1 died on 04.12.2008 and defendant No.2 submitted his additional wri
