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2023 DIGILAW 1163 (KAR)

Gangavva @ Suvarna v. Iravva

2023-10-04

ANANT RAMANATH HEGDE

body2023
JUDGMENT : Mr. Anant Ramanath Hegde, J. - This appeal is by the plaintiff. The suit for partition is dismissed. 2. The genealogy of the parties is as under: 3. One Basayya was the propositus. He had two sons, Irayya and Revanayya. Revanayya married Iravva and from the marriage the couple had three sons namely Rudrayya, Basayya and Gurushiddayya and one daughter Gangavva. 4. The suit is filed by Gangavva against her mother Iravva and brothers Rudrayya, Basayya and Gurushiddayya. The date of death of Revanayya is not furnished in the pleadings but it is admitted that Revanayya died many years prior to filing of the suit. The suit properties are the properties bearing Sy.No.114/C2 measuring 35 guntas and Sy.No.114/C3 measuring 35 guntas and Sy.No.114/C4 measuring 35 guntas in Rayanal village, Taluk Hubballi. 5. The suit is filed on the premise that the properties were allotted to the share of the branch of Revanayya after the death of Revanayya, in a partition between Irayya and branch of Revanayya. The plaintiff claims after the division of the properties between Irayya and branch of Revanayya there is no further division of properties among the plaintiff and the defendants. 6. The defendants disputed the claim of the plaintiff on the premise that the properties are not ancestral properties. It is their case that the properties were granted to their father's brother namely Irayya and Irayya out of love and affection, transferred the properties exclusively in the names of Rudrayya, Basayya and Gurushiddayya on 13.03.1994 and thus, the defendants prayed for dismissal of the suit. 7. The trial Court has accepted the defence that the properties are the self-acquired properties of Irayya and exclusively transferred to defendants No.2 to 4. 8. In the suit, the plaintiff has also impleaded her mother as defendant No.1 and one Mr. Roshanlal as defendant No.5 and Durgappa as defendant No.6. It is stated that Roshanlal and Durgappa were agreement holders who proposed to purchase the properties from defendants No.2 to 4. 9. The mother Iravva remained exparte. Rudrayya defendant No.2 contested the suit. Defendants No.3 and 4 remained exparte. The trial Court has accepted the plea of defendant No.2 that the suit schedule properties are self-acquired properties of Irayya and on that basis has dismissed the suit. 10. 9. The mother Iravva remained exparte. Rudrayya defendant No.2 contested the suit. Defendants No.3 and 4 remained exparte. The trial Court has accepted the plea of defendant No.2 that the suit schedule properties are self-acquired properties of Irayya and on that basis has dismissed the suit. 10. The trial Court has also accepted the defence of respondent No.2 that the suit is bad for non-joinder of necessary parties as Irayya, the original grantee is not made a party. 11. Aggrieved by the aforesaid judgment and decree, the plaintiff is in appeal. 12. Sri.Mallikarjunswamy B Hiremath, the learned counsel appearing for the appellants would urge that the properties are not exclusive properties of Irayya, they were joint family properties allotted in the name of Irayya and the joint family comprised Irayya and his brother Revanayya. It is also the contention that when the properties were granted, his brother Revanayya was alive and Irayya and Revanayya were living together and acknowledging the fact that the properties are granted jointly, Irayya effected partition between himself and children of Revanayya excluding the plaintiffs' mother and the plaintiff. Thus, he would urge that the trial Court has erred in holding that the properties are self-acquired properties of Irayya. 13. Learned counsel for the respondents would submit that the trial Court is justified in dismissing the suit as the suit properties are self-acquired properties of Irayya and since it is granted to Irayya, his brother Revanayya cannot claim any share and children of Revanayya also cannot claim any relief on the premise that the said properties are joint family properties. 14. This Court has considered the contentions raised at the bar. 15. There is no dispute that the properties were originally granted in the name of Irayya. If at all these properties were the self-acquired properties, then Irayya could not have effected partition in respect of the said properties with his brother's children namely defendants No.2 to 4. The very fact that the partition is effected between Irayya and his brother's three sons is the proof of the fact that the properties were jointly granted though they were granted in the name of Irayya. There is no dispute that when this grant was made Revanayya was alive and the evidence brought on record would indicate that Irayya and Revanayya were staying together when this grant was made. There is no dispute that when this grant was made Revanayya was alive and the evidence brought on record would indicate that Irayya and Revanayya were staying together when this grant was made. If at all there was no joint family grant, the only way for transferring the properties in the names of three children of Revanayya was either to execute a sale deed or gift deed or relinquishment deed. However, Irayya has chosen to effect partition which is reflected in Ex.P.5. Irayya or his children have not questioned the partition. 16. Ex.P.5 would reveal that Irayya and his brother's children are the members of the joint family and it further reveals that since there was rift between joint family members and to avoid the future conflict, the properties are partitioned and after the partition the properties are subdivided as Sy.No.114/C measuring 3 acres 15 guntas and said 3 acres 15 guntas is allotted to the share of Irayya and it is also recorded in the said partition that out of 3 acres 15 guntas, 34 guntas allotted to Irayya have been acquired for road widening and the three sons of Revanayya have been allotted 35 guntas each. This mutation is not questioned by anyone. 17. It is relevant to note that this partition has taken place after the death of Revanayya. This partition is clearly proved by the fact that Revanayya had share in the said properties and after the death of Revanayya his wife namely defendant No.1 the mother of the plaintiff as well as plaintiff will also acquire equal share along with three sons of Revanayya. Unfortunately, share is not allotted to either the mother or the plaintiff daughter. 18. This being the case, the suit for partition filed by the daughter is very much maintainable and the trial Court has erred in holding that the suit properties are the self-acquired properties of Irayya. 19. It is also relevant to note that the suit is filed in respect of the properties allotted to the branch of Revanayya and not in respect of properties allotted to the share of Irayya. This being the position, the trial Court could not have held that Irayya is also a necessary party to the suit. 20. 19. It is also relevant to note that the suit is filed in respect of the properties allotted to the branch of Revanayya and not in respect of properties allotted to the share of Irayya. This being the position, the trial Court could not have held that Irayya is also a necessary party to the suit. 20. Accordingly, this Court is of the view that the impugned judgment and decree passed by the trial Court are to be set aside and the suit of the plaintiff is to be decreed holding that the plaintiff is having 1/4th share. 21. Though the plaintiff claimed 1/5th share when the suit was filed, it is relevant to note that the mother defendant No.1 died during the pendency of the appeal. Thus, her share would devolve upon plaintiff and defendants No.2, 3 and 4. 22. Accordingly, the plaintiff is entitled to 1/4th share. Each of defendants No.2, 3 and 4 are entitled to 1/4th share. Hence, the following: ORDER (i) The appeal is allowed. Judgment and decree dated 29.03.2011 passed in O.S.No.62/2010 on the file of II Additional Senior Civil Judge, Hubballi are set aside. (ii) Suit is decreed holding that the plaintiff is entitled to 1/4th share and each of defendants No.2, 3 and 4 are entitled to 1/4th share. (iii) The parties are entitled to initiate final decree proceedings. Registry to draw decree accordingly.