Pundalik Mahadev Harihar v. Sushila

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 6TH DAY OF DECEMBER, 2024 PRESENT THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR AND THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA REGULAR FIRST APPEAL NO.100236 OF 2016 (PAR/POS) BETWEEN: SHRI PUNDALIK MAHADEV HARIHAR, AGE: 67 YEARS, OCC. AGRICULTURE, R/O PRABHUWADI-CHIKODI, TQ. CHIKODI, DIST. BELAGAVI. - APPELLANT (BY MR. S. B. SHAIKH, ADVOCATE)

AND:

¶1SMT. SUSHILA W/O NIVRUTHI PAYMALLE, AGE: 69 YEAS OCC. HOUSEHOLD WORK, R/O. NEJ, TQ. CHIKODI, DIST. BELAGAVI.

2. SMT. MANGAL W/O MAHADEV KHARADE SINCE DECEASED R/BY LEGAL HEIRS

2(A) SHRI MAHADEV AABA KHARADE, AGE: 72 YEARS, OCC. AGRICULTURE, R/O. KUMBOJ, TQ. HATKANAGALE, DIST. KOLHAPUR-416002, MAHARASHTRA.

2(B) SMT. SHILPA W/O DATTA HUJARE, AGE: 35 YEARS, OCC. TEACHER, R/O. MANGALWAR PETH, TQ. KARVEER, DIST. KOLHAPUR-416003, MAHARASHTRA.

2(C) SMT. PUSHPA W/O. NIKIN (NITIN) GONDHALE, AGE: 32 YEARS, OCC. HOUSEHOLD WORK, R/O. HARIPUR ROAD, TQ. SANGLI, MAHARASHTRA-416414.

2(D) SMT. LATA W/O SUDHAKAR BHOSALE, AGE: 28 YEARS, OCC. AGRICULTURE,

MANJANNA E Location: High Court of Karnataka, Dharwad Bench Date: 2024.12.18 10:19:10 +0530 NC:,2024:KHC-D:17948-DB, RFA(No.100236(of(2016( ( ( ( ( R/O.,KUMBOJ,,TQ.,HATKANAGALE,, DIST.,KOLHAPUR-416002,,MAHARASHTRA., ,

3., SMT.,SHANTABAI,W/O,VILAS,BHADAVALE,, AGE:,63,YEARS,,OCC.,HOUSEHOLD,WORK,, R/O.,KOLHAPUR,,TQ,AND,DIST.,KOLHAPUR., ,

4., SMT.,HEMALATA,W/O,PUNDALIK,CHOUGULE,, AGE:,48,YEARS,,OCC.,HOUSEHOLD,WORK,, R/O.,KOLHAPUR,,TQ,AND,DIST.,KOLHAPUR., ,

5., SHRI,MAHADEV,BALAPPA,HARIHAR,, AGE:,98,YEARS,OCC.,AGRICULTURE,, R/O.,PRABHUWADI-CHIKODI,,, TQ.,CHIKODI,,DIST.,BELAGAVI., ,

6., SHARUBAI,W/O,MAHADEV,HARIHAR,, AGE:,84,YEARS,,OCC.,HOUSEHOLD,WORK,, R/O,PRABHUWADI-CHIKODI,, TQ.,CHIKODI,,DIST.,BELAGAVI., -, RESPONDENTS, (BY,MR.,SHIVARAJ,S.,BALLOLI,,, ADVOCATE,FOR,R1,,R3,AND,R4,, NOTICE,TO,R2(A),,R2(C),,R2(D),,R5,AND,R6,–SERVED;, NOTICE,TO,R2(B),HELD,SUFFICIENT), , , THIS,REGULAR,FIRST,APPEAL,IS,FILED,UNDER,SECTION,96,OF, CODE, OF, CIVIL, PROCEDURE,, PRAYING, TO,, SET, ASIDE, THE, JUDGMENT, AND, DECREE, DATED, 22.07.2016, PASSED, IN, OS, NO.179/2014, BY, PRINCIPAL, SENIOR, CIVIL, JUDGE, CHIKODI, BY, THDECREEING,THE,SUIT,AND,AWARDING,1/7 ,SHARE,TO,EACH,PARTY, IN,THE,SCHEDULE,PROPERTIES,,IN,THE,INTEREST,OF,JUSTICE,AND, EQUITY., , THIS, APPEAL,, COMING, ON, FOR, ADMISSION,, THIS, DAY,, JUDGMENT,WAS,DELIVERED,THEREIN,AS,UNDER:, , CORAM:, THE,HON'BLE,MR.,JUSTICE,SREENIVAS,HARISH,KUMAR, AND,, THE,HON'BLE,MR.,JUSTICE,T.,G.,SHIVASHANKARE,GOWDA, (

ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR)

The third defendant in O.S. No. 179/2014, before Prl. Sr. Civil Judge, Chikkodi has preferred this appeal assailing the judgment dated 22.07.2016.

¶2The plaintiffs are the married daughters of the first and second defendant. Defendant no.3 is the son of defendants 1 and 2. The plaintiffs brought a suit for partition and separate possession in respect of two pieces of agricultural lands in Sy. No.185/1K and 185/2K of Chikkodi and a house property bearing CTS No. 3886 situate at Chikkodi town. Stating that these properties belong to the joint family and that they have become coparceners in view of amendment brought to Hindu Succession Act, they claimed 1/7th share each. The defendants 1 and 2 stated in the written statement that the plaintiffs had share in the properties. Defendant no.3 admitted that the properties belonged to the joint family but took a contention that the plaintiffs received money in

lieu of their shares and moreover, as he had spent a huge amount of money for their marriages they can not claim partition. He contended that the plaintiffs gave up their rights over the properties and hence denied the plaintiffs right to seek partition.

¶3Answering issues 1 to 5 the trial court decreed the suit holding that there was no earlier partition of the joint family properties and thereby the each plaintiff was entitled to claim share which is equal to 1/7th share in the suit property.

¶4The counsel for the appellant/ defendant no.3 argued that defendant no.3 could not lead evidence before the trial court. The trial court hurriedly disposed of the suit without affording him an opportunity and therefore the suit is to be remanded to the trial court.

¶5But we do not find a ground to admit this appeal. The relationship between the plaintiffs and defendants is not disputed. It was defendant no.3 who specifically

contended that the plaintiffs gave up their share by receiving money and that a huge amount of money had been spent for the marriages of the plaintiffs. It is not his case that there was a previous partition before amendment was brought to Sec.6 of the Hindu Succession Act. The trial court has held that in case there were to be any relinquishment of shares by the plaintiffs that should be only through a registered relinquishment deed. The defendant no.3 failed to produce the same. This finding of the trial court cannot be held to be incorrect.

¶6in regard to grievance of defendant no.3 that he was denied an opportunity to lead evidence from his side, it is to be stated that nothing prevented him from leading evidence. The trial court has clearly observed in the judgment that inspite of several opportunities being given defendant no.3 did not lead evidence. When we put a question to learned counsel for the appellant as to how the case of defendant no.3 had improved if he had adduced evidence, he was unable to answer. As has been observed

already, main contention of defendant no.3 in his written statement is that the plaintiffs were given money in lieu of their shares, about which there is no proof. He should have obtained a valid document to that effect. He has not pleaded previous partition. Therefore even if he had lead evidence, he could not have improved his case in any manner going beyond his written statement. No purpose would be served even if suit is remanded to the trial court. The properties belong to the joint family. The plaintiffs are the daughters of defendants 1 and 2 and they have now acquired the status of coparceners which enable them to claim partition. Each plaintiff is therefore entitled to 1/7th share. For all these reasons there is no ground to admit the appeal. Hence appeal dismissed. There is no order as to costs.

Sd/- (SREENIVAS HARISH KUMAR) JUDGE

Sd/- (T. G. SHIVASHANKARE GOWDA) JUDGE BVV/LIST NO.: 1 SL NO.: 18