Gangamma W/O Shivasharanappa ... vs Kasturibai @ Sharnamma
2021 Latest Caselaw 6292 Kant

                             1

          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH
     DATED THIS THE 16TH DAY OF DECEMBER-2021
                        PRESENT
         THE HON'BLE MR.JUSTICE R. DEVDAS
                           AND
 THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
                 RFA NO.1117/2005 (PAR)
BETWEEN:
1.  Gangamma W/o Shivasharnappa Hosdoddi,
    Major, Occ: Household & Agriculture,
    R/o V.K.Salgar, Aland Taluk,
    Gulbarga District-585104.
2.     Santhosh S/o Shivasharnappa,
       Major, Occ: Agriculture,
       R/o Village, V.K.Salgar, Aland Taluk,
       Gulbarga District-585104.
3.     Shambulingappa S/o Basavantharao Mali Patil,
       Age: Major, Occ: Agriculture,
       R/o Karhari, Aland Taluk,
       Gulbarga District-585104.
                                               ... Appellants
(By Sri. Ananth S.Jahagirdar, Advocate)
AND:
Kasturibai @ Sharnamma
W/o Late Gundappa Hosadoddi,
Age: 40 years, Occ: Household work & Agriculture,
R/o Village V.K.Salgar, Aland Taluk,
Gulbarga District-585104.
                                       ..... Respondents
(By Sri. Harshavardhan R.Malipatil, Advocate)

       This RFA is filed under Section 96 of CPC, praying
to allow this appeal by setting aside the order of learned
Civil Judge (Sr.Dn.) Aland dated 15.04.2005 in OS
No.120/2003, in the interest of justice and equity.
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     This appeal coming on for orders this day,
Rajendra Badamikar, delivered the following:

                      JUDGMENT

This appeal is filed challenging the judgment and

decree passed in OS No.120/2003 on the file of Civil

Judge (Sr.Dn.), Aland dated 15.04.2005.

2. The suit for partition filed by the plaintiff-

respondent herein was allowed by awarding 1/3 rd share

to the plaintiff herein. The main contention of

appellants in this appeal is that their sister Shashikala

was not made as a party and she would get equal share

to that of sons in the family partition. However, she was

not made as a party in this appeal too by the appellants

and she has not preferred to appear.

3. The learned counsel for plaintiff-respondent

filed a memo submitting that the appeal may be allowed

by modifying the share of the plaintiff from 1/3rd to

1/4th and the affidavit of plaintiff-respondent herein is

also filed in support of the memo. The learned counsel

for appellant would submit that if the shares are

modified then appeal may be allowed in said terms of

modifying the share to 1/4th each by accepting memo.

Hence, the memo filed by the sole respondent along with

the affidavit is placed on record.

4. The appeal stands allowed partly. The

judgment and decree passed in OS No.120/2003 on the

file of Civil Judge (Sr.Dn.), Aland is modified by

reducing the share of plaintiff from 1/3rd to 1/4th.

Accordingly, appellant Nos.1 and 2 will together get

1/4th share while appellant No.3 and the daughter

Shashikala are entitled in 1/4th share each. The decree

passed by the trial court stands modified accordingly.

Draw a decree accordingly.

No order as to costs.

Sd/-

JUDGE

Sd/-

JUDGE SMP