Research › Search › Judgment

Karnataka High Court · body

2022 DIGILAW 460 (KAR)

Basavanneppa v. Ganga

2022-04-04

K.S.HEMALEKHA

body2022
JUDGMENT K.S.HEMALEKHA J. - The concurrent findings of the Courts below has been challenged by the defendant assailing the judgment and decree dtd. 31/7/2014 in RA No.75/2013 on the file of II Additional District and Sessions and Spl. Judge, Dharwad, confirming the judgment and decree dtd. 24/4/2013 in OS No.262/2011 on the file of the III Additional Civil Judge (SR.DN) and CJM, Dharwad. 2. The parties herein are referred to as per the ranking before the trial Court. 3. The plaintiff and the defendant are brother and sister. Suit filed for partition and separate possession seeking 1/2 share in the suit schedule properties contending that the suit schedule properties is the ancestral joint family property of the family of the plaintiff and defendant and during the life time of the deceased father Ningappa both plaintiff and defendant were in joint possession and enjoyment of the suit schedule properties. 4. The defendant appeared and filed his written statement disputing the very relationship of the plaintiff and defendant and denied that the plaintiff is entitled for share in the suit schedule properties. 5. The trial Court on the basis of the pleadings, material and evidence on record held that the suit properties are the joint family properties of the plaintiff and the defendant and the defendant has failed to prove that there is no relationship between the plaintiff and the defendant and granted 1/2 share in the suit schedule properties. 6. Being aggrieved by the judgment and decree of the trial Court defendant preferred an appeal before the lower appellate Court. The lower appellate Court on re- appreciation of the material and evidence on record held that the plaintiff is entitled for 1/2 share in the suit schedule properties and dismissed the appeal filed by the defendant confirming the judgment and decree of the trial court. 7. Heard the learned counsel for appellant Sri. Shivaraj P. Mudhol and the learned counsel for the respondent Sri.Arun L. Neelopant. 8. In addition to the various other contention urged in the appeal memo, it is the foremost contention of the learned counsel for the appellant that the plaintiff is not entitled for 1/2 share in the suit schedule properties as defendant / appellant is disputing the very relationship of the plaintiff with that of the defendant. 8. In addition to the various other contention urged in the appeal memo, it is the foremost contention of the learned counsel for the appellant that the plaintiff is not entitled for 1/2 share in the suit schedule properties as defendant / appellant is disputing the very relationship of the plaintiff with that of the defendant. It is further contended by the appellant that the suit item No.3 and 4 are the self acquired property of the defendant and that the Courts below have not taken into consideration that item No.3 and 4 are the self acquired property of the defendant. 9. Per contra learned counsel for respondent Sri.Arun L. Neelopant, contended that the Courts below have concurrently held that the plaintiff is the sister of the defendant and there is a relationship that of a brother and sister between the plaintiff and the defendant and on analyzing the material facts on record trial Court and the First Appellate Court have held that the plaintiff is entitled for 1/2 share in the suit schedule properties. 10. Insofar as item Nos.3 and 4 is concerned, it is contended that the defendant in his cross examination has admitted that the suit schedule item Nos.3 and 4 are the ancestral properties of this plaintiff and defendant and thus, sought to contend that the Courts below have concurrently and rightly held that the plaintiff is the daughter of late Ningappa and thus, entitled for 1/2 share in the suit schedule properties. 11. The defendant has disputed the very relationship of the plaintiff with that of the defendant. The plaintiff in order to prove her relationship with the defendant and that Ningappa and the mother Mallavva are the parents has got marked Exs.P1 to P12. Ex.P1 to P4 are the RTC revenue records pertaining to suit schedule properties wherein the name of the plaintiff appears and the father's name is shown as Ningappa. Ex.P6 is the marks card of the plaintiff where the name of the father is shown as Ningappa. Exs.P7 and P8 are the marks card pertaining to the type writing examination and the plaintiffs name is shown as Gangvva D/o Ningappa Gongabikoppa. Ex.P10 is the certified copy of the MR No.669 dtd. 24/2/1965, wherein on death of the said Ningappa, the legal representatives names, i.e. the plaintiff and defendant have been entered in the revenue records. Exs.P7 and P8 are the marks card pertaining to the type writing examination and the plaintiffs name is shown as Gangvva D/o Ningappa Gongabikoppa. Ex.P10 is the certified copy of the MR No.669 dtd. 24/2/1965, wherein on death of the said Ningappa, the legal representatives names, i.e. the plaintiff and defendant have been entered in the revenue records. The defendant contended that the plaintiff is not the sister of defendant in order to deny the share in the suit schedule properties. This is the very peculiar circumstance where the own brother tries to deny the relationship of the plaintiff, in order to deprive her legitimate share. The oral and documentary evidence addused by the defendant would not substantiate his contention that the plaintiff is not the daughter of Ningappa and as such, not his sister. The defendant got marked Ex.D1-the certificate issued by the Head Master of primary school at Jodalli to contend that there is no such person by name Gangavva who is shown in the school records. The document marked at Ex.D1 is not a public document nor the person who issued the said certificate has been examined on behalf of the defendant. On the contrary, the SSLC marks card at Ex.P6 depicts that plaintiff is the daughter of Ningappa. Ex.D1 and Ex.P6 are contrary as a certificate issued by Head Master shows that there is no such person by name Gangavva, whereas it is the contention of the defendant that Gangavva-the plaintiff is not the daughter of Lingappa and the said contention is not established by way of Ex.D1. In the light of the material on record the plaintiff has proved that there is a relationship between the plaintiff and the defendant and the plaintiff's father is Ningappa. 12. Insofar as the other contention is concerned, that item Nos.3 and 4 is the self acquired property of the defendant. It is relevant to note that the written statement filed by the defendant other than only denying the relationship of plaintiff, no such contention has been raised in his written statement about the self acquisition of Item Nos.3 and 4. It is only in the evidence, for the first time, the defendants have taken a contention that item Nos.3 and 4 are the self acquired properties. It is only in the evidence, for the first time, the defendants have taken a contention that item Nos.3 and 4 are the self acquired properties. DW1 in his cross examination has categorically admitted in unequivocal terms that the suit schedule item Nos.3 and 4 are the ancestral properties of the plaintiff and defendant. The trial Court and the First Appellate Court on the basis of the evidence and materials on record have rightly held that plaintiff is entitled for 1/2 share in the suit schedule properties. 13. The law insofar as Sec. 6 of the Hindu Succession Amendment Act 2005, is no more a res integra. In view of the relationship being proved by the Courts below and in view of the dictum of the Hon'ble Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and Others reported in (2020) 9 SCC 1 wherein the Apex Court held that the daughters are entitled to equal share in the ancestral joint family property and thus, the judgment and decree of the Court below granting 1/2 share to the plaintiff does not call for any interference. Thus, in view of the concurrent finding of the Court below and in view of the dictum of the Hon'ble Apex Court in the case of Vineeta Sharma (stated supra), the appeal filed by the defendant is devoid of merits and no substantial question of law arises for consideration in this appeal. 14. In the result, this Court pass the following: ORDER i) The appeal filed by defendant is hereby dismissed. ii) No order as to costs.