IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 18TH DAY OF NOVEMBER, 2016

PRESENT

THE HON'BLE MR.JUSTICE ASHOK B.HINCHIGERI

A N D

THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR

R.F.A. No.100131/2015 (PAR/POS)

BETWEEN:

• 1. SMT. NEELAWWA W/O. LAXMAPPA METAGUDD AGE: 68 YEARS, OCC: AGRICULTURE R/O. MANTUR, TQ: MUDHOL-587313. DIST: BAGALKOT
• 2. ASHOK S/O. LAXMAPPA METAGUDD AGE: 38 YEARS, OCC: AGRICULTURE R/O. MANTUR, TQ: MUDHOL-587313 DIST: BAGALKOT.
• 3. SMT. KASTURI W/O. BASAPPA TIMSANI AGE: 36 YEARS, OCC: AGRICULTURE R/O. MANTUR, TQ: MUDHOL-587313 DIST: BAGALKOT
• 4. SMT. LAXMAWWA W/O. GURAPPA TIMASANI AGE: 33 YEARS, OCC: AGRICULTURE

R/O. MANTUR, TQ: MUDHOL-587313 DIST: BAGALKOT.

... APPELLANTS

(BY SRI SHREEVATSA SURESH HEGDE, ADVOCATE)

AND :

• 1. SMT. IRAWWA W/O. SHANKERAPPA HOSUR AGE: 57 YEARS, OCC: HOUSEWIFE R/O. HALAGALI, TQ: MUDHOL-587316 DIST: BAGALKOT
• 2. SMT. INDRABAI W/O. SHANKERAPPA BENAKATTI AGE: 49 YEARS, OCC: HOUSEWIFE R/O. ARAKERI, TQ: BILAGI-587319 DIST: BAGALKOT

... RESPONDENTS

(BY SRI PAVAN B DODDATTI, ADVOCATE FOR C/R1-R2)

THIS APPEAL IS FILED UNDER SECTION 96 OF C.P.C. PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 24.03.2015 PASSED IN O.S. NO.33/2012 BY THE SENIOR CIVIL JUDGE AND JMFC, MUDHOL BY ALLOWING THE APPEAL.

THIS APPEAL A/W. I.AS. COMING ON FOR HEARING ON INTERLOCUTORY APPLICATIONS, THIS DAY, ASHOK B.HINCHIGERI, J., DELIVERED THE FOLLOWING:

JUDGMENT

The defendants have preferred this appeal against the judgment and decree, dated 24.03.2015 passed by the Court of Senior Civil Judge & J.M.F.C., Mudhol in O.S.No.33/2012.

2. The facts of the case in brief are that the respondents herein (plaintiffs) filed O.S.No.33/2012 seeking the reliefs of partition and separate possession. It is the case of the respondent – plaintiffs that they are the daughters of the deceased Laxmappa Ningappa Metagudd through his first wife Smt. Kamalawwa. On the death of Kamalawwa on 21.03.1962, Laxmappa married the appellant No.1 (defendant No.1), Neelawwa. The appellant Nos.2 to 4 (defendant Nos.2 to 4) are born to Neelawwa and Laxmappa. The respondents contended that they and the appellants are the coparceners of Hindu undivided family and that no partition has taken place in the joint family properties, which are described in the suit schedule. The appellants did not permit the respondents to attend the funeral of their father. They would not allow the respondents to enjoy the suit schedule properties. On the

respondents demanding their 1/3rd share in the suit schedule properties and on the appellants rejecting their demand, they filed O.S. No.33/2012.

3. The appellants filed their written statement admitting their relationship with the deceased Laxmappa Metagudd. The other plaint averments were by and large denied by the appellants. They denied that the respondents are the daughters of Laxmappa. The appellants contended in the written statement that the respondents are the distant relatives of Laxmappa and on humanitarian grounds Laxmappa performed their marriage incurring expenses. They denied that the properties are ancestral properties. They took exception to the respondents not challenging the mutation entries effected in favour of the appellants. They contended that the properties were purchased with the self-acquired funds and that they were relinquished by him in favour of his son, the appellant No.2 herein. As the respondents did not challenge the mutation entries, their suit is barred by limitation, so contended the appellants.

4. Based on the rival pleadings, the Trial Court formulated the following five issues :

• 1. Whether plaintiffs prove that they are the daughters of deceased Laxmappa S/o.Ningappa Metagudd through his first wife Kamalawwa as contended in the plaint?
• 2. Whether plaintiffs prove that plaintiffs and defendants are co-parceners of Undivided Joint Hindu Family and they are in joint possession and enjoyment of the suit properties as owners as on the date of the suit as contended in the plaint?
• 3. Whether defendants prove that suit of the plaintiff is barred by limitation?
• 4. Whether plaintiffs are entitled for the relief of partition and separate possession as sought for?
• 5. What order or decree?

5. Three witnesses were examined on behalf of the respondents, including the first respondent Irawwa (PW1), marking 9 documents in Ex.P series. On behalf of the appellants five witnesses were examined including the second appellant (DW1), marking the documents at Ex.s. D1 to D19.

6. Based on the pleadings, oral and documentary evidence placed on its record, the Trial Court answered the issues in favour of the respondents and proceeded to decree the suit. The Trial Court has held that the respondents are entitled to 1/6 share each in the schedule 'A' properties.

7. Sri Shreevatsa S. Hegde, learned counsel for the appellants submits that assuming without admitting that the marriage between Laxmappa Metagudd and Kamalawwa has taken place, it is not a valid marriage at all. It falls in the prohibited degree. In support of his submissions he read out the following part of cross-examination of PW1:

" £Á£ÀÄ ®PÀëöä¥Àà ªÉÄlUÀÄqÀØ EªÀgÀ zÀÆj£À ¸ÀA§A¢üPÀ¼ÀÄ C£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. £À£Àß vÀAzÉAiÀÄ CªÀé ºÁUÀÆ £À£Àß vÁ¬ÄAiÀÄ vÁ¬Ä CPÀÌvÀAVAiÀÄgÀÄ. £À£Àß vÀAzÉAiÀÄ CªÀé£À ºÉ¸ÀgÀÄ PÁ±ÀªÀé. £À£Àß vÁ¬ÄAiÀÄ vÁ¬Ä ºÉ¸ÀgÀÄ ¸ÀvÉÛªÀé. ªÀA±ÁªÀ½ ºÁdgÀ ªÀiÁqÀĪÀ ¸ÁzsÀåvÉ £À£ÀUÉ EzÉ."

8. He submits that the Trial Court has erred by relying on the evidence of PW3 although she has not furnished the material particulars of the marriage. PW3 has stated that she is in no position to say as to how many years ago, the marriage between Laxmappa Metagudd and Kamalawwa took place.

9. He takes serious exception to the Trial Court relying on the respondents' birth certificates (Exs.P7 and P9), because they do not contain the name of the mother of the respondents.

10. He submits that at the most only suit item properties 1 to 3 are ancestral. But in any case no suit schedule property is available for being partitioned at the instance of the daughters of Laxmappa Metagudd. He submits that the Trial Court has not given any weightage to the pleadings and the evidence based on record to the effect that the oral relinquishment arrangement between Laxmappa Metagudd and second appellant took place somewhere in 1991. He submits that the subject matter of the suit properties can only be those which do not form part of subject matter of oral relinquishment arrangement.

11. Sri K.L.Patil, learned counsel for the respondents submits that the arguments are being raised without there being any corresponding foundation in the pleadings. Nowhere in the written

statement it is stated that the marriage between Laxmappa Metagudd and Kamalawwa is void or voidable. That it is within the prohibited degree is not whispered in the written statement. Further he submits that the customs in the area and in the community in question permit the marriages between the cousins – marrying mother's brother's daughter, father's sister's daughter and marrying sister's daughter. He submits that the death certificate at Ex.P6 and birth certificates at Exs. P7 and P9 are public documents and that they have come into existence at an undisputed point of time. He submits that they cannot be disbelieved only because mother's name is not shown in them. He submits that the father's full name is shown. The said certificates show that the respondents are the daughters of the said Laxmappa Metagudd. He also brings to our notice the school admission certificate at Exs.D4 and D5 which also show the name of Laxmappa as the father of the respondents.

12. He submits that no credence can be given to the version of the appellants that Laxmappa relinquished his rights and title in favour of the appellant No.2 in respect of some properties in

1991 because relinquishment has to be by a registered document only.

13. In the course of rejoinder, Sri Hegde asserts that the relinquishment arrangement between the father and son need not be reduced to writing and therefore it need not be registered.

14. The submissions of the learned counsel have received our thoughtful consideration. Copies of the deposition and of exhibits are made available to us at the bar.

15. The argument that the alleged marriage between Laxmappa Ningappa Metagudd and Kamalawwa is not valid, as it falls within the prohibited degree has absolutely no foundation in the pleadings. In their written statement, the appellants contended that the respondents are the distant relatives of Laxmappa Metagudd and that he performed the marriages of the respondents incurring heavy expenses on humanitarian grounds. But in the course of crossexamination, DW1 (appellant No.2 herein) states that he has not given any instruction to state that Laxmappa spent the money on

performing the marriages of the respondents. Thus the inconsistent stands are taken.

16. The Hon'ble Supreme Court in the case of UNION OF INDIA vs. IBRAHIM UDDIN AND ANOTHER reported in (2012) 8 SCC 148 has held that no relief can be given outside pleadings; party cannot be allowed to go beyond pleadings. The courts have to go by the pleadings of the parties as held by the Apex Court in the case of UNION OF INDIA vs. IBRAHIM UDDIN AND ANOTHER reported in 2013 (4) KCCR SN 308 (SC).

17. On the ground that PW3 did not recall and depose as to when Kamalawwa's marriage came to be performed, her evidence cannot be disbelieved. She is none but the sister of Kamalawwa. She has deposed that she has attended the marriage ceremony of Kamalawwa and Laxmappa, which took place at Manturi. She has also deposed that Laxmappa Metagudd is also known by the name Laxmappa Nayak.

18. We have carefully scrutinized the entries in the respondents' birth certificates at Exs. P7 and P9. Both the certificates clearly show the name of the respondents' father as Laxmappa Ningappa Metagudd. Only because the name of the respondents' mother is not shown therein, they cannot be discarded. The birth certificates have come into existence at an undisputed point of time and are issued in the usual course. We are also not persuaded to give acceptability to the version of the appellants that a oral relinquishment arrangement took place between the appellant No.2 and his father Laxmappa Metagudd. The relinquishment has to be by a compulsorily registerable document.

19. The death certificate at Ex.P6 in respect of the respondents' mother (Kamalawwa) also shows her (Kamalawwa's) husband's name as Laxmappa. The school admission certificates also show the name of the respondents' father as Laxmappa Nayak. Only because the mutation entries are effected in favour of the appellant No.2, it cannot be held that he has become the absolute owner. It is trite that the record of rights are not the title deeds. Further, the entries in the record of rights are always subject to the decree to be passed by a competent civil court.

20. Thus, even when we take a re-look at the oral and documentary evidence placed on the record of the Trial Court, we cannot arrive at any conclusion different from the one arrived at by the Trial Court. We find that the Trial Court's appreciation of evidence is fair and objective and its conclusions are absolutely supportable and sustainable.

21. In the result, we dismiss this appeal. No order as to costs.

22. Now that the main matter itself is disposed of nothing survives for consideration of I.A.Nos.1/2015 and 1/2016. They are dismissed as having become unnecessary.

Sd/- JUDGE

Sd/- JUDGE

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