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2023 DIGILAW 1027 (KAR)

Shreeshail v. Basavaraj

2023-08-30

ANANT RAMANATH HEGDE

body2023
JUDGMENT : Mr. Anant Ramanath Hegde, J. - Defendant No.1-Shrishail in OS.no.66/2010 On the file of the I Additional Senior Civil Judge Dharwad, is aggrieved by the decree for partition granted in favour of the plaintiffs who are three in number. The admitted genealogy is as under:- 2. One Yallappa the propositus died on 05.01.2010. The propositus is survived by Basavannevva his wife, Basavaraj and Shrishail his two sons and Sumangala the only daughter. The suit is filed in the year 2010 by Basavaraj S/o Yallappa Ghalappanavar, Sumangala the daughter of Yallappa and Basavannevva- the wife of Basavaraj. 3. The suit is filed against Shrishail, the son of Yellappa. Later, on an application, the mother of Yallappa by name Siddawwa, the sister of Yallappa by name Gangawwa were impleaded. 4. The plaintiffs contend that item Nos.(a) and (b) of the suit schedule the properties were allotted to the share of Yallappa in the partition which took place in the between Yallappa, his mother and his sister. In the said partition, item Nos.(a) and (b) properties were allotted to the share of Yallappa. Item No.(c) is the property purchased in the name of defendant no.1 under the registered sale deed dated 04.06.1987. Item no.(d) and (e) are the ancestral properties. It is the case of the plaintiffs that though the property at item no.(c) was purchased in the name of first defendant, the said property is acquired in the name of first defendant from the income derived from the ancestral properties standing in the name of Yallappa. Thus, the plaintiffs claimed share in the aforementioned properties on the premise that they have acquired right in the properties by reason of birth in the family. 5. The plaintiffs also contend that the registered gift deed executed in favour of first defendant dated 10.12.2008, without the consent and knowledge of the plaintiffs, in respect of item Nos.(a) and (b) properties in favour of first defendant is impermissible under law. The plaintiffs contend that Yallappa could not have executed the aforementioned gift deed as he had no exclusive right over the aforementioned properties. Even the execution of the gift deed is disputed. 6. The second defendant-the mother of Yallappa supported the case of the plaintiff. Third defendant did not contest the matter. The plaintiffs contend that Yallappa could not have executed the aforementioned gift deed as he had no exclusive right over the aforementioned properties. Even the execution of the gift deed is disputed. 6. The second defendant-the mother of Yallappa supported the case of the plaintiff. Third defendant did not contest the matter. First defendant took a contention that the father -Yallappa was competent to execute a registered gift deed in his favour as it was his exclusive property and the gift deed was executed with the consent and knowledge of the plaintiffs. Pursuant to the gift deed in the year 2008, there was change in the mutation in respect of the properties covered by the registered sale deed. Thus, it is urged that the plaintiffs cannot claim any share in the suit properties. 7. It is also urged that the father purchased the property in the year 1987 in the name of the first defendant who was aged eleven, with an intention to confer exclusive title in favour of first defendant. Hence, the suit for partition in respect of item No.(c) property is not maintainable as first defendant is the exclusive owner of item no.(c) property. 8. The Trial Court rejected the contention that the properties are the exclusive properties of Yallappa and also held that the properties are the joint family properties of Yallappa and granted a decree for partition in respect of item Nos.(a) and (b) properties granting 1/4th share to each of the plaintiffs and first defendant. And granted a decree for partition of 1/5th share to each of the plaintiffs and defendants No.1 and 2 in respect of item No.(c) to (e) properties. 9. Aggrieved by the aforementioned judgment and decree, the first defendant is in appeal. 10. Heard Sri Gurudev I. Gachchinamath, learned counsel appearing for the appellant and Sri. Arun L. Neelopant, learned counsel appearing for respondents No.1 to 3. 11. Shri Gurudev I. Gachchinamath, the learned counsel appearing for the appellant would contend that item Nos.(a) and (b) properties are the exclusive properties of the propositus Yallappa, as such, he was competent to execute the registered gift deed. It is also his contention that registered gift deed was executed in favour of first defendant on 10.12.2008. He would submit that till the death of Yallappa, the gift deed was not questioned. Pursuant to the gift deed, there was change in the mutation. It is also his contention that registered gift deed was executed in favour of first defendant on 10.12.2008. He would submit that till the death of Yallappa, the gift deed was not questioned. Pursuant to the gift deed, there was change in the mutation. These factors would indicate that Yallappa executing the gift deed, was known to the remaining members of the family, namely, the plaintiffs and defendants No.2 and 3. Thus, he would contend that the plaintiffs cannot claim any share in respect of the properties covered by the gift deed. 12. He would also submit that the father of defendant No.1, namely, Yallappa was working in Army and after his retirement, he was appointed in State Bank of India as a Book Keeper and he used to receive pension from his previous employer and was also getting decent salary from the employment in State Bank of India. Thus, he had separate independent income. With that income, he purchased item No.(c) property in the year 1987 in the name first defendant with an intention to confer exclusive title in favor of first defendant. 13. Learned counsel Shri Gurudev I. Gachchinamath, would also place reliance on the additional documents produced before this court along with an application filed under order XLI Rule 27 of the Code of Civil Procedure. By referring to said documents, he would urge that independent income of Yallappa is established and the stand taken by defendant No.1 that Yallappa conferred exclusive title in favour of first defendant under the registered sale deed of 1987 is also established. Thus, he would urge that the appeal be allowed and the suit be dismissed. 14. Sri Arun L. Neelopant, learned counsel for respondents No.1 and 2 would urge that admittedly the partition took place in the family and of item Nos. (a) and (b) properties are allotted to the share of Yallappa as these properties were inherited from the father of Yallappa. That being the position, the plaintiffs acquired the right in the properties at item No.(a) and (b) by reason of birth in the family. Thus, he would contend that the plaintiffs had undivided share in item Nos. (a) and (b) properties and the gift deed could not have been executed without the consent of the plaintiffs. 15. That being the position, the plaintiffs acquired the right in the properties at item No.(a) and (b) by reason of birth in the family. Thus, he would contend that the plaintiffs had undivided share in item Nos. (a) and (b) properties and the gift deed could not have been executed without the consent of the plaintiffs. 15. He would refer to the judgment of this case Court in the case of Babu Mother Savavva Navalgund & Others v. Gopinath reported in ILR 1999 KAR 3129 and would contend that even if the execution is held to be proved, the gift is void and the benefit would come to all the joint owners. 16. As far as the contention relating to item No.(c) property is concerned, it is urged by Sri Neelopant, learned counsel that Yallappa did not have surplus independent income to purchase item No.(c) property which was purchased in the year 1987 for Rs. 60,000/-. He would submit that, in the cross examination, DW1 has admitted that he does not know anything about the source of income to purchase the property. 17. Referring to the additional documents sought to be produced, it is urged by Shri Neelopant, that the additional documents do not come to the aid of the appellant. He would submit that except the order of appointment by the State Bank of India, which was issued in 1978, rest of the documents are the documents relating to the alleged separate income of Yallappa post 1987. Thus, he would submit that the documents are not produced to show that Yallappa had sufficient independent income, apart from the income from the ancestral properties to purchase the property at item No.(c) for Rs. 60,000/- in the year 1987. 18. After considering the rival contentions and the records placed before this Court, the following points arise for consideration:- 1) Whether the appellant is able to establish that he has acquired right over the properties at item No. (a) and (b) under the registered gift deed dated 10.12.2008 executed by Yallappa? 2) Whether the appellant is able to establish that item No.(c) property is the self acquired property of Yallappa? 3) Whether the share quantified by the trial Court is in accordance with law? 19. 2) Whether the appellant is able to establish that item No.(c) property is the self acquired property of Yallappa? 3) Whether the share quantified by the trial Court is in accordance with law? 19. As far as the position of Hindu Law relating to the gift of undivided share is concerned, it is fairly well settled law, that the gift of an undivided share is permissible in case the other co-sharers consent for the execution of the gift. 20. Though Shri Gurudev Gachchinmath, learned counsel has vehemently contended that the circumstances would indicate that the defendants consented for the execution of the gift deed, evidence on record would not justify the said contention. There is no consent recorded in the registered gift deed produced before the Court. Even in the written statement, defendant No.1 has not taken any specific plea relating to the alleged consent given by the plaintiffs in favour of the father of the plaintiffs for execution of the gift deed dated 10.12.2008. That being the position, the ratio laid down in the case of Babu Mother Savavva Navalgund referred to supra squarely applies to the case on hand and the gift deed does not confer exclusive title in favour of the first defendant. 21. As far as item No.(c) property is concerned, though the property is purchased in the name of defendant No.1 in the year 1987, when defendant No.1 was aged 11 years, the materials are not placed before the Court to show that father had independent income to purchase the property in the 1987 for a consideration of Rs. 60,000/-. Moreover, it is not the case of defendant No.1 in the written statement, that the father had independent separate income to purchase item No.(c) property for a consideration of Rs. 60,000/-. 22. Though Sri Gurudev I. Gachchinamth, learned counsel has strenuously urged before this Court placing reliance on the additional documents sought to be produced, that the father was employed in Army and later, in the year 1978, was employed in the State Bank of India, the records placed before this Court by way of additional documents, do not come to the aid of the appellant for the simple reason that the appointment order issued by the State Bank of India in the year 1978 would reveal that the salary of Yallappa was Rs. 386.84. 386.84. Rest of the documents produced along with the application for production of additional documents are for the year 1994 onwards. These documents do not have any bearing on the matter, as this Court is considering the capacity of the father to purchase property in the year 1987. 23. That being the position, in the absence of any specific plea in the written statement, that the property in the name of defendant No.1 is purchased with separate income of Yallappa, this Court is not in a position to hold that the property is purchased from the independent income of Yallappa. This Court does not find any illegality in the impugned judgment and decree. 24. It is noticed that the trial Court has granted 1/4th share in favour of each of the plaintiffs and defendant No.1 in respect of Item Nos. (a) and (b) properties. Now, it is brought to the notice of this Court that the mother of Yallappa i.e. defendant No.2 - Siddawwa died intestate. Her 1/5th share would devolve upon remaining Class-I heirs of Siddawwa. Thus, each of the plaintiffs and defendants No.1 and 3 will acquire 1/4th share in the suit schedule properties. 25. Appeal is allowed in part as indicated above. 26. Impugned judgment and decree dated 27.08.2015 passed in O.S.No.66/2010 on the file of I Additional Senior Civil Judge, Dharwad stand modified. 27. The each of the plaintiffs and each of the defendants will have 1/4th share in the suit schedule properties. The allocation of share is to be worked out in the final decree proceedings. 28. The application for production of additional documents allowed only to consider the appointment order of the year 1978. 29. Registry to draw decree accordingly.