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2025 DIGILAW 587 (KAR)

Suresh S/O. Babi Naik v. Shalini @ Subhada D/O. Babi Naik

2025-06-26

M.G.S.KAMAL

body2025
JUDGMENT : M.G.S. Kamal, J. 1. These two appeals are filed by defendant No.2, being aggrieved by the common judgement and decree dated 23 rd December 2020 passed in R.A. Nos.30 of 2014 and 31 of 2024, on the file of the Principal District and Sessions Judge, Uttar Kannada, Karwar (for short “the First Appellate Court”), by which the First Appellate Court while allowing the appeal in R.A. No.30 of 2014 filed by the defendants and dismissing the appeal in R.A. No.31 of 2014 filed by the appellant herein, modified the judgement and decree dated 26 th July 2014 passed in O.S. No.20 of 2010 on the file of the Principal Senior Civil Judge, Karwar (for short “the trial Court”) by declaring the plaintiff and defendant Nos.1, 2 & 6 and 7 to 9 together being entitled to 1/8 th share in all the suit schedule properties. 2. The above suit in O.S. No.20/2010 is filed by the plaintiff, namely Shalini, against the defendants seeking partition and separate possession of 11 items of the suit schedule properties. It is the case of the plaintiff that one Babi Naik was the owner in possession of the suit schedule properties. He was married to one Seetabai. The said Babi Naik passed away on 12.01.1977, leaving behind his wife Seetabai and his two sons namely Sadananda (defendant No.1) and Suresh (defendant No.2) and six daughters namely Susheela (defendant No.3), Jyotsna (defendant No.4), Prema (defendant No.5), a predeceased daughter by name Nalini, Shalini (plaintiff), and Vaishali (defendant No.6). The children of the predeceased daughter Nalini are arrayed as defendant Nos.7, 8 and 9. 3. It is the case of the plaintiff that she had requested for partition and separate possession of her share, suspecting the bona fides of defendant Nos.1 and 2 regarding the misuse of the family properties. Since her request was not accepted, she filed the suit for partition, seeking her 1/8 th share. 4. Defendant Nos.1 filed his written statement admitting the share of the plaintiff in the suit schedule properties. Defendant Nos.1 and 9 also filed the written statement admitting the claim of the plaintiff. Defendant No.2 filed a written statement which was adopted by defendant No.7. 5. In his written statement, defendant No.2 contended that the plaintiff is not a coparcener and, is not entitled to any share in the joint family properties. Defendant Nos.1 and 9 also filed the written statement admitting the claim of the plaintiff. Defendant No.2 filed a written statement which was adopted by defendant No.7. 5. In his written statement, defendant No.2 contended that the plaintiff is not a coparcener and, is not entitled to any share in the joint family properties. He claimed that the joint family consists only of defendant Nos.1 and 2, who were taking care of their parents. Defendant No.1 has been residing in Bombay for about 50 years and was engaged in business. He claimed to have spent his own funds to acquire suit schedule properties at Sl.Nos.5 to 11 and towards the Court expenses. He also stated that he borne the expenses for constructing a building and conducting the marriage of his sisters, without any financial contribution from other family members. He further contended that, according to the family tradition, the family properties cannot be psrtitioned, and therefore, he sought dismissal of the suit. 6. Defendant No.2 filed an additional written statement contending that the father of the parties passed away on 12.01.1977, all the legal heirs of the deceased father gave a varadhi to the Tahsildar on 06.08.1977 consenting to effect the mutation. Accordingly, revenue authorities mutated the varadhi entry under Mutation Entry No.6421. As a result, the widow of the deceased Babi Naik and his two sons were brought up on revenue record and entry certified by the revenue authorities on 07.12.1977. He further contended that the plaintiff, being a daughter, is not entitled to a share in the family properties, even pursuant to the amendment to the Hindu Succession Act . It was admitted that item No.1 to 8 are the only ancestral properties, while item Nos.9 to 11 are tenanted lands included in the suit schedule properties. These tenanted lands were cultivated by the mother Seetabai and defendant Nos.1 and 2, and were granted in their names. Therefore, no other family members are entitled to any share in the said properties. It is also contended that the daughters, having been married prior to the grant, are not entitled to any share. Hence, he sought for dismissal of the suit. 7. Defendant No.7 also filed an additional written statement contending that the ancestral properties were divided on 18.06.1999 as per the partition deed and the same is admitted in O.S. No.6/2011. It is also contended that the daughters, having been married prior to the grant, are not entitled to any share. Hence, he sought for dismissal of the suit. 7. Defendant No.7 also filed an additional written statement contending that the ancestral properties were divided on 18.06.1999 as per the partition deed and the same is admitted in O.S. No.6/2011. That the plaintiff got executed GPA by other sisters to get an area of 0-3-0 from the ancestral properties and has executed an agreement on behalf of other sisters to get Rs.50,000/- for each from defendant No.2. The plaintiff had also filed suit in O.S. No.109/2007 without making defendant No.1 as party to the proceedings. The said suit is dismissed for default. As such the second suit is not maintainable. 8. Defendant No.10 filed his written statement contending that the plaintiff and defendant No.2 had executed an agreement dated 18.04.2002 in respect of land in Sy.No.470/1 and 3 measuring 0-3-0 and a house bearing No.600 in favour of defendant NO.10. Defendant NO.10 has paid the entire amount and is in possession of the said land and building protected under Section 53-A of the transfer of Property Act. He is ready to bear the expenses of the registration of the sale deed. Hence sought for direction to the plaintiff and defendant Nos.1 to 9 to execute the regular deed of sale by allotting the land purchased by him to the share of the mother of the plaintiff and defendant No.2 in the partition. 9. Based on the pleadings, the trial Court framed the following issues: 1) Whether the Plaintiff proves that the plaintiff and the defendants are members of the joint family and that the suit properties are the Joint Family properties? 2) Whether the Plaintiff proves that she has 1/8 th share in the Suit properties? 3) Whether the Defendant No. 2 proves that Late Smt. Seeta Bai executed a WILL bequeathing 1/3 rd of the share she was entitled to in the Joint Family Property, to her grand children Deepak & Sushanth? 4) Whether the Defendant No.2 proves that Defendant No.2 has spent Rs.35,00,000/- tomaintain the family properties and that the same is liable to be reimbursed by other members of the family in case of a partition? 5) Whether the Defendant No.2 proves that Sl. No.5 to 11 are his self-acquired properties? 4) Whether the Defendant No.2 proves that Defendant No.2 has spent Rs.35,00,000/- tomaintain the family properties and that the same is liable to be reimbursed by other members of the family in case of a partition? 5) Whether the Defendant No.2 proves that Sl. No.5 to 11 are his self-acquired properties? 6) Whether the suit is bad for Non-joinder of necessary parties such as Deepak and Sushanth? 7) Whether the Plaintiff is entitled to the relief of partition and separate possession as sought for? 8) What order or decree? 10. The plaintiff examined herself as PW1 and produced 17 documents, marked as Exs.P1 to P17. Defendant No.2 examined himself as DW1 and produced 19 documents, marked as Exs.D1 to D19. 11. The trial Court answered issue No.1 in the affirmative, issue Nos.2 to 6 in negative, and issue No.7 partly in the affirmative. Consequently, partly decreed the suit, holding that plaintiff is entitled to a 1/32 nd share in the suit schedule properties; defendant Nos.1, 2 and 6 are each entitled to a 9/32 nd share; defendant Nos. 3 to 5 are each entitled to a 1/32 nd share; and defendant Nos.7 to 9 are collectively entitled to a 1/32 nd share, in the suit schedule properties. 12. Aggrieved by the said judgment and decree, the plaintiff and defendant Nos.1, 3, 4, 5, 6 and 9 preferred an appeal in R.A. No.30/2014, while defendant No.2 filed an appeal in R.A. No.31/2014. 13. The First Appellate Court framed the following points for its consideration: 1) Whether the plaintiff proves that she is entitled for 1/8th share in suit schedule properties along No.2 to 6? 2) Whether defendant No.2 proves that plaintiff and defendant No.3 to 6 are not entitled for share in properties mentioned at Sl.No.9 to 11 of suit schedule properties? 3) Whether judgment and decree under appeal calls for interference by this Court? 4) What Order? 14. On re-appreciat i on of the matter, the First Appellate Court answered point Nos.1 and 3 in the affirmative and point No.2 in the negative. By a common judgment and order, it allowed the appeal in R.A. No.30/2014 filed by the plaintiff and defendant Nos.1, 3 to 6 and 9, while dismissed the appeal in R.A. No.31/2014 filed by defendant No.2, granting the reliefs as noted above. 15. By a common judgment and order, it allowed the appeal in R.A. No.30/2014 filed by the plaintiff and defendant Nos.1, 3 to 6 and 9, while dismissed the appeal in R.A. No.31/2014 filed by defendant No.2, granting the reliefs as noted above. 15. Being aggrieved, the defendant has approached this Court in RSA No.100060/2021, challenging the allowing of the appeal filed by the plaintiff and defendant Nos.1, 3 to 6 and 9, and in RSA No.100083/2021, challenging the dismissal of his appeal. 16. This Court admitted both appeals by order dated 05.04.2023 for consideration of the following substantial questions of law: 1. Whether the Courts below were justified in granting share to the married daughters in respect of property at Sl. No.9 to 11 of the suit schedule properties which were the properties over which occupancy rights were granted by the Land Tribunal, Karwar, in favour of the original propositous subsequent to the marriage of the plaintiff and her sisters?. 2. Whether the Courts below were justified in not following the judgment of this Court in NIBAVVA VS. CHENNAVEERAYYA RENDERED IN R.F.A. No.4150/2012 reported in ILR 2013 KAR 6202 17. Learned counsel appearing for the appellants, while fairly submitting that the position of law regarding the entitlement of married daughters in tenanted lands is settled, holding them to be entitled to a share notwithstanding the date of their marriage or the death of the propositus, however contended that the specific facts of the present case requires consideration. He submits that the dispute pertains only to item Nos.9 to 11 of the suit schedule properties. Referring to the deposition of PW1, wherein she admitted that she was married in the year 1972, learned counsel submits that the grant of the tenanted lands being made in 1977 indicates that the said properties had not come into the ownership of Babi Naik during his life time. He further submits that, upon the demise of Babi Naik, his wife Seetabai and his sons Sadanand and Suresh defendant Nos.1 and 2 respectively pursued the matter, resulting in the grant being made by order dated 18.10.1979. Form No.10 was issued in their names, culminating in the final order dated 28.02.1992. Therefore, the plaintiff being a daughter, who was admittedly married in 1972, cannot claim any share in those properties. 18. Form No.10 was issued in their names, culminating in the final order dated 28.02.1992. Therefore, the plaintiff being a daughter, who was admittedly married in 1972, cannot claim any share in those properties. 18. Further he referred to the affidavit filed by the plaintiff as PW1 in lieu of her examination-in-chief, wherein she categorically deposed that while allotting 1/8 th share, the temple of Shri Santoshi Mata constructed by defendant No.2, be allotted exclusively to defendant No.2, and that the remaining suit lands and the house situated therein be divided by metes and bounds. 19. He also refers to Ex.P15 and the deposition of PW1 recorded on 03.01.2014, wherein she admitted that mutation entries based on inheritance were effected only in respect of item Nos.1 to 8 of the suit schedule properties, and that no such entries were made in respect of item Nos.9 to 11 and submits that there was no challenge to these mutation entries by the plaintiff at any point in time. 20. Referring to these three factual aspects, learned counsel submitted that the claim of the plaintiff for equal entitlement in the suit schedule properties cannot be sustained. 21. Per Contra, learned counsel appearing for the respondents referring to the judgment of the Apex Court in SOMAKKA (DEAD) BY L.RS. VS. K.P. BASAVARAJ (DEAD) BY L.RS. , [ AIR 2022 SC 2853 ] as well as the judgements of the Coordinate Bench of this Court in ISHWAR VS. JATTAMMA ALIAS MASTAMMA KOM MANJAPPA NAIK , [AIROnline 2023 KAR 715] and VISHNU S/O. IRAPPA ILAGER AND OTHERS VS. SMT. BUDDAVVA W/O. YALLAPPA ILAGER AND OTHERS , [RSA No.100608/2019, DD: 26th September 2024] submitted that since issue whether daughters married prior to the grant of land under the Land Reforms Act are entitled to a share is well settled, and the said question is no longer res integra, the substantial question of law raised in the present appeals does arise for consideration. 22. As regards the factual aspects pointed out by the learned counsel for the appellant, he submitts that such pleadings or depositions do not negate the rights of the parties, inasmuch as item Nos.9 to 11 of the suit schedule properties were admittedly held and cultivated by Babi Naik during his life time. 22. As regards the factual aspects pointed out by the learned counsel for the appellant, he submitts that such pleadings or depositions do not negate the rights of the parties, inasmuch as item Nos.9 to 11 of the suit schedule properties were admittedly held and cultivated by Babi Naik during his life time. These properties which are heritable, and it was only upon his demise that his wife and his two sons were brought on record as his legal heirs. The grant made in their favour, would therefore enure to the benefit of the entire family. 23. He further submits that, the Final Decree Proceedings have already been completed and closed. In that, the shares have been allotted to the parties in terms of the preliminary decree passed by the First Appellate Court. He furnishes copy of the Final Decree Proceedings. 24. Adverting to the submissions made by learned counsel appearing for the appellant referring to the last paragraph of the deposition of plaintiff to the effect of she admitting and agreeing for allotment of portion of the property including the temple to the share of favour of defendant No.2, he fairly submits on instruction that, though the Final Decree Proceedings have been drawn, the appellant may seek for adjustment of equities while allotting his share of the property with the temple and the plaintiff has no objection to that effect. 25. Submission is taken on record. 26. Heard and perused. 27. As there is a consensus at bar with regard to entitlement of married daughters in respect of the tenanted land having been settled by series of judgements of the Apex Court and of this Court referred to by the counsel for the parties the substantial question of law framed by this Court do not require any detailed discussion. 28. Suffice it to state that the suit schedule properties including item Nos.9, 10 and 11 are the joint family properties held by Babi Naik - the father of the plaintiff and the defendants and upon his demise subsequent grant made in respect of item Nos.9, 10 and 11 in favour of his wife Seetabai and his sons Sadanand and Suresh defendant Nos.1 and 2 respectively by order dated 18.10.1979 would enure to the benefits of all the members of the family. Therefore, the shares allotted by the First Appellate Court dividing the property equally amongst the family members cannot be found fault with. 29. The submission made by the learned counsel appearing for the appellant on the factual aspects of the matter for consideration, referring to the deposition of the plaintiff regarding she having been married in the year 1972, and the property having been granted in the name of her mother and brothers the defendant Nos.1 and 2, and she not questioning the revenue entries made in respect of item Nos.9, 10 and 11, same would not hold much substance inasmuch as, admission of her marriage in the years 1972 and her inaction to challenge the revenue entries if any, would not override her legal rights. In the circumstances, the plaintiff and the other daughters, as rightly held by the First Appellate Court are equally entitled for their shares in the suit properties. Therefore, the said submissions cannot be countenanced. 30. As regards the other submission made by the learned counsel appearing for the appellant with reference to the last paragraph of the affidavit filed by the plaintiff, in lieu of her evidence, in the light of the fair submission made by learned counsel for respondent/plaintiff and in the light of admitted fact of defendant No.2 constructing a temple of Shree Santoshimata, in a portion of property falling within item Nos.9, 10 and 11, to avoid any anomaly at any point of time in future, while executing the which is already drawn, equities may be adjusted final decree while allotting the share of defendant No.2 in item Nos.9, 10 and 11 in a manner accommodating his share to include the said temple and the shares of the plaintiff and other defendants be allotted / adjusted in the rest of the properties accordingly. It is further made clear that the parties are at liberty to seek necessary modification in the Final Decree Proceedings to the extent of adjusting equities as noted herein above. 31. The substantial questions of law raised above are answered accordingly. 32. The appeal is disposed off confirming the judgement and decree passed by the First Appellate Court. Pending applications, if any, are disposed off accordingly.