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SUPREME COURT OF INDIA
C.T. RAVIKUMAR, RAJESH BINDAL, JJ.
Srinivas Raghavendrarao Desai (Dead) By Lrs. – Appellant
Versus
V. Kumar Vamanrao @ Alok and Ors. – Respondents
Civil Appeal No(s). 7293-7294 of 2010
Decided On : 04-03-2024
Property Law – Partition – [Civil Procedure Code, 1908 – Order VI Rule 1] – High Court committed a grave error in placing reliance upon partition allegedly effected in year 1965, in terms of which Schedule ‘A’ properties were allotted exclusively to share of defendant No.1 – Fact remains that it is not even pleaded case of plaintiffs in suit that there was any partition of family properties in year 1965 – No evidence could be led beyond pleadings – It is not a case in which there was any error in pleadings and parties knowing their case fully well had led evidence to enable Court to deal with that evidence – In case in hand, specific amendment in pleadings was sought by plaintiffs with reference to 1965 partition but same was rejected – In such a situation, evidence with reference to 1965 partition cannot be considered – Trial Court had rightly ignored plea taken in replication by plaintiffs regarding oral partition of 1965, as amendment sought to that effect had already been declined – What was not permitted to be done directly cannot be permitted to be done indirectly – Findings of High Court set aside. (Paras 14, 15, 16 and 24)
Facts of the case:
Suit was filed by plaintiffs claiming 5/9th share in suit schedule properties. Further prayer was made for grant of mesne profits. Appeals filed by plaintiffs having been partly allowed by High Court, defendant No. 7 has challenged judgment and decree of High Court before this Court.
Findings of Court:
Findings of High Court with reference to Regular Survey Nos. 106/2 and 44/4 are set aside. Same are held to be properties coming to share of appellants. Sale deed executed by appellant (since deceased) in favour of defendant No. 9 regarding Survey No. 106/2 is upheld.
Result : Appeals allowed.
JUDGMENT :
Rajesh Bindal, J.
1. The appeals,1[R.F.A. No. 1463 of 2007 and R.F.A. No. 1782 of 2007] filed by the plaintiffs having been partly allowed by the High Court,2[High Court of Karnataka, Circuit Bench at Dharwad], the defendant No. 7 has challenged the judgment and decree,3[Judgement and decree dated 19.12.2008] of the High Court before this Court.
Facts of the case
2. A suit,4[O.S.No.60 of 1999] was filed by Kumar Vamanrao alias Alok son of Sudheendra Desai(plaintiff No.1), Kumar Vyas alias Prateek Sudheendra Desai (plaintiff No. 2) and Aruna wife of Sudheendra Desai (plaintiff No.3), sons and wife of Sudheendra (defendant No. 1) respectively, impleading the parents of defendant No.1 and great grant mother of the plaintiffs No.1 and 2. Kumari Arundhati (defendant No. 5) was daughter of Ramarao (defendant No.2 and sister of defendant No.1. Martandappa (defendant No.6) was said to be proposed purchaser of the part of the land. Srinivas Raghavendrarao Desai (defendant No.7) was impleaded in the suit vide order dated 02.01.2001.
2.1 Defendant No.7 is in appeal before this Court against the judgment and decree of the High Court. He having died during the pendency of the Special Leave Petitions, his legal representatives have been brought on record vide order dated 23.03.2015. Prahlad (defendant No.8) brother of defendant No. 7 was impleaded in the suit vide order dated 11.07.2003. Whereas Administrative Officer-Murugharajendra Vidyapeeth (defendant No. 9) was impleaded vide order dated 08.06.2005, as defendant No. 7 had sold Regular Survey No.106/2 in favour of defendant No. 9 by executing sale deed dated 25.07.2001.
3. The suit was filed by the plaintiffs claiming 5/9th share in the suit schedule properties. Further prayer was made for grant of mesne profits. Along with the plaint, the following schedule of the properties was attached of which partition was sought :
| “SCHEDULE- ‘A’ The properties standing in the name of defendant No. 1 | ||||||
| S. No. | TALUKA | VILLAGE | R.S.NO. BLOCK NO. | AREA A-G | ASST.Rs.PS. | VALUATION |
| 1. | Dharwad | Dhandikoppa | 50/1 | 4-6-1/2 | 11-49 | Rs.50,000/- |
| 2. | Dharwad | Saptapur | 106/2 | 3-14 | 9-28 | Rs.50,000/- |
| 3. | Dharwad | Lakamanahalli | 86/2B | 7-32 | 26-32 | Rs.80,000/- |
| 4. | Dharwad | Kelgeri | 69 | 6-10 | 6-53 | Rs.50,000/- |
| 5. | Dharwad | Kelgeri | 152/4 | 7-01 | 20-82 | Rs.70,000/- |
| SCHEDULE- ‘B’ The properties standing in the name of D.2 | ||||||
| S. No. | TALUKA | VILLAGE | R.S.NO. BLOCK NO. | AREA A-G | ASST.Rs.PS. | VALUATION |
| 1. | Dharwad | Saptapur | 120 | 3-20 | 5-36 | Rs.40,000/- |
| 2. | Dharwad | Kanavi Honnapur | 87A | 2-06 | 0-51 | Rs.10,000/- |
| 3. | Hubli | Sutagatti | 9A/2 | 2-01 | 1-11 | Rs.10,000/-[1/2 share in this property to RV Desai D-1] |
| 4. | Dharwad city R.S. No. 55A flat in plot No. F-2 Lakamanahalli village in ground floor VCidyagiri, the House in Century Park bearing Municipal No. 14184/A//0B2 | Rs.2,00,000/- | ||||
| 5. | Dharwad | Nuggikeri Village | R.S. No. 44/4 | 7-00 | 1-12 | Rs.70,000/- |
| SCHEDULE – ‘C’ Standing in the name of defendant No.4’s husband V. H. Desai | ||||||
| S. No. | TALUKA | VILLAGE | R.S.NO. BLOCK NO. | AREA A-G | ASST.Rs.PS. | VALUATION |
| 1. | Hubli Taluka | Suttagatti | 9A/9 | 1-18 | 1-53 | Rs.10,000/- |
| SCHEDULE- ‘D’ Standing in the name of defendant No.4’s husband V. H. Desai | ||||||
| S. No. | TALUKA | VILLAGE | R.S.NO. BLOCK NO. | AREA A-G | ASST.Rs.PS. | VALUATION |
| 1. | Dharwad | Dhandikoppa | Block No. 9 | 5-33 | 20-81 | Rs.50,000/- standing in the name of D2 and D4] |
| 2. | Dharwad | Hosayallapur | Block No. 170 | 16-32 | 46-37 | Rs.60,000/- [1/2 share in the land standing in the name of D2 and D4] |
| 3. |
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The central legal point established in the judgment is the application of the Hindu Succession Act to determine the entitlement of the plaintiff to the Schedule Properties.
The court ruled that the plaintiffs' claims over certain properties were invalid due to prior sales, emphasizing the necessity of declarations regarding property ownership in joint familial contexts ....
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