RATNA Vs. CHANNABASAPPA

JUDGEMENT

(1.) Plaintiff in O.S. No. 8/2012 on the file of the learned Senior Civil Judge & JMFC, Hunagund (hereinafter referred to as the trial Court), is impugning the judgment and decree dtd. 14/8/2014, decreeing the suit of the plaintiff in part and holding that she is entitled for 1/36th share in the suit schedule item No. A (1 to 3) and Item No. B(1) of 'B' schedule while rejecting her claim for the relief of declaration and partition of her share in item No. B(2) of 'B' schedule property. Parties shall be referred to as per their ranks before the trial Court.

(2.) Brief facts of the case are that the plaintiff filed the suit O.S. No. 8/2012 before the trial Court against defendant nos.1 to 7 seeking declaration that the sale deed dtd. 3/12/1994 executed by defendant nos.1 to 5 in favour of defendant no. 7 in respect of CTS No. 2880, fully described in schedule 'B' is not binding on her 1/6th share and also for partition and separate possession of her share in all the suit schedule properties. It is contended that defendant nos.1 to 5 have illegally alienated the property bearing CTS No. 2880 measuring 12346.40 sq.mts. situated at Hunagund town in favour of defendant no. 7 under the registered sale deed dtd. 3/12/1994 and the same is not binding on her. It is contended that plaintiff and defendant nos.1 to 5 constitute a joint family and late Sangappa Honavad is the propositor. Therefore after the death of the propositor Sangappa and his wife Gangamma, their children, i.e., plaintiff and defendant nos.1 to 5 acquired equal right over the property. It is stated that during the lifetime of the propositor Sangappa, he converted R.S. No. 464/3 measuring 3.02 acres into non agricultural purpose and got the order dtd. 15/12/1966 from the office of the Assistant Commissioner, Bagalkot. In the said land, layout was formed which consist of 18 sites. During the lifetime of Sangappa he sold site no. 1 in favour of Mahantappa Shivabasappa Huddar, under the sale deed dtd. 10/8/1970. The remaining 17 sites were inherited by the plaintiff and defendant nos.1 to 5 as the legal representatives of their father and mother, i.e., Sangappa and Gangamma. It is also contended that defendant No.1 being the eldest member in the family was managing the affairs of it. Defendant nos.2 to 5 were residing at different places on their avocation. But, however defendant nos.1 to 5 illegally sold item no. B(2) of 'B' schedule. The plaintiff is not a party to the same and therefore the same is not binding on her share. The plaintiff came to know about the said sale very recently and therefore sought for partition and separate possession of her 1/6th share in all the properties. 'B' schedule appended to the plaint describes items A (1 to 3) bearing R.S. No. 129/1 measuring 15.06 acres, R.S. No. 129/2A measuring 7 acres, and R.S. No. 129/2B measuring 7.27 acres situated at Timmapur village, Hunagund Taluk. The schedule describes item no. B(1 and 2) as site nos. 39 and 40 in property no. 325/1, CTS No. 2880, property no. 2396 measuring 12346.40 sq.mtrs. in Hunagund Pattan Panchayat. The plaintiff filed the memo stating that property A (1 to 3) and B(1) in 'B' schedule are the ancestral coparcenary properties of plaintiff and defendant nos.1 to 5 and therefore the plaintiff is entitled for 1/36th share as per Sec. 6 of the Hindu Succession Act and item no. B(2) in schedule 'B' is the separate properties of her father and therefore she is entitled for 1/6th share u/s 8 of the Hindu Succession Act .

(3.) Defendant nos.2 to 5 have filed their written statement denying the contentions taken by the plaintiff. It is admitted that plaintiff and defendant nos.1 to 5 are the members of the Hindu undivided family and description of the property in schedule 'B' is also admitted. Contention of the plaintiff that propositor Sangappa was cultivating the lands and he left behind his wife Gangamma and children, i.e., plaintiff and defendant nos.1 to 5 is admitted. It is admitted that Gangamma also died during 2000. It is also admitted that Sangappa during his lifetime converted 3.2 acres of land in Sy. No. 464/3 of Hunagund into non agricultural one and formed as many as 18 sites. Virtually the defendants have admitted contentions of the plaintiff and further stated that even though they have executed the sale deed dtd. 3/12/1994 in favour of defendant no. 7, the same was not entitled to be acted upon. The sale deed was executed as security for the loan obtained. Defendants contended that the plaintiff got married by spending huge amount. She was given gold and silver articles. She was also given valuable gifts which was more than her share in the schedule property. Therefore, it is contended that she is not entitled for any share in the schedule property.