Kashavva W/O. Shiddappa ... vs Bhimaraddi S/O. Hanamaraddi ...
2022 Latest Caselaw 5996 Kant

 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

       DATED THIS THE 04 T H DAY OF APRIL, 2022

                       BEFORE

       THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


             R.S.A.NO.100571/2015 (PAR)

BETWEEN

1 .   KASHAVVA W/O. SHIDDAPPA NINGARADDI
      AGE: 46 YEARS, OCC: COOLIE,
      R/O. MULLUR, TQ: RAMDURG-591102,
      DIST: BELAGAVI.

2 .  KAVITA W/O. SHEKAPPA RAYARADDI
     AGE: 26 YEARS, OCC: HOUSEHOLD WORK,
     R/O. CHIKKANARAGUND,
     TQ: NARAGUND-582101, DIST: GADAG.
                                    ...APPELLANTS
(BY SRI.D B KALLANGOUDAR, SRI.B.B.RAYAREDDI
& SRI.M.B.MADANALLI, ADVS.)

AND

1 .   BHIMARADDI S/O. HANAMAPPA NINGARADDI,
      AGE: 35 YEARS, OCC: AGRICULTURE,
      R/O. MULLUR, TQ: RAMDURG-591102,
      DIST: BELAGAVI.

2 .   SUNDARAVVA W/O. HANAMAPPA NINGARADDI,
      AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
      R/O. MULLUR, TQ: RAMDURG-591102,
      DIST: BELAGAVI.

3 .   BASURADDI S/O. HANAMAPPA NINGARADDI,
      AGE: 36 YEARS, OCC: AGRICULTURE,
      R/O. MULLUR, TQ: RAMDURG-591102,
      DIST: BELAGAVI.
                         2




4 .   LALITHA W/O. SHEKHARADDI POTARADDI
      AGE: 29 YEARS, OCC: HOUSEHOLD WORK,
      R/O. MULLUR, TQ: RAMDURG-591102,
      DIST: BELAGAVI.

5 .   FAKKIRADDI S/O. BASAPPA NINGARADDI
      AGE: 49 YEARS, OCC: AGRICULTURE,
      R/O. MULLUR, TQ: RAMDURG-591102,
      DIST: BELAGAVI.

6 .   SHRIKANT S/O. BASAPPA NINGARADDI
      AGE: 40 YEARS, OCC: AGRICULTURE,
      R/O. MULLUR, TQ: RAMDURG-591102,
      DIST: BELAGAVI.

7 .   MAHADEVI BASURADDI NAGAVI
      AGE: 39 YEARS, OCC: HOUSEHOLD WORK,
      R/O. KIRESUR, TQ: HUBBALLI-580008,
      DIST: DHARWAD.

8 .   LAXMAVVA HANAMANTH NAGAVI
      AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
      R/O. KIRESUR, TQ: HUBBALLI-580008,
      DIST: DHARWAD.

9 .   RATNAVVA W/O. VENKAPPA NEELAGUD
      AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
      R/O. KONDIKOPPA, TQ: NAVALAGUND-580008,
      DIST: DHARWAD.

10 . RENAVVA W/O. PANDAPPA NEELAGUD
     AGE: 44 YEARS, OCC: HOUSEHOLD WORK,
     R/O. KONDIKOPPA, TQ: NAVALAGUND-580008,
     DIST: DHARWAD.

11 . PADAVVA W/O. NINGAPPA BALARADDI
     AGE: 44 YEARS, OCC: HOUSEHOLD WORK,
     R/O. MAGADI, TQ: SHIRAHATTI-582101,
     DIST: GADAG.
                                   ...RESPONDENTS
                                3




(BY SRI.H M DHARIGOND, ADV. FOR R1 & R2;
 SRI.T.M.NADAF, ADV. FOR R4;
 NOTICE TO R3, R5, R7, R8-SERVED;
 NOTICE TO R6, R9, R10-HELD SUFFICIENT;
 NOTICE TO R11-DISPENSED WITH)


     THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST    THE  JUDGMENT    AND   DECREE    DATED
22.04.2015 PASSED IN R.A.NO.13/2014 ON THE FILE
OF THE SENIOR CIVIL JUDGE, RAMDURG, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 08.04.2013 AND THE DECREE PASSED
IN O.S.NO.129/2009 ON THE FILE OF THE CIVIL JUDGE
AND JMFC, RAMDURG, DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.


    THIS RSA COMING ON FOR ADMISSION THIS DAY,
THE COURT, DELIVERED THE FOLLOWING:

                         JUDGMENT

Challenging judgment and decree dated 22.04.2015

passed by Senior Civil Judge, Ramdurg, in R.A.No.13/2014 and

judgment and decree dated 08.04.2013 passed by Civil Judge

and JMFC, Ramdurg, in O.S.No.129/2009, this appeal is filed.

2. Though this appeal is listed for admission, with

consent of learned counsel for parties, appeal is taken up for

final disposal.

3. Appellants herein are legal representatives of original

defendant no.1 in suit. They were appellants no.1 and 2 in first

appeal. Respondents no.1 and 2 herein were plaintiffs no.1 and 2

in suit and respondents no.1 and 2 in first appeal. Respondents

no.3 to 11 herein were defendants no.2 to 10 in suit and

respondents no.3 to 11 in first appeal. For sake of convenience

parties hereinafter referred to as per their ranks in suit.

4. O.S.No.129/2009 was filed seeking for partition and

separate possession of plaintiffs 2/5th share in suit properties

namely:

"zÁªÁzÀ D¹ÛAiÀÄ ªÀtð£É

C) gÁªÀÄzÀÄUÀðvÁ®ÆPÀ ¥ÉÊQ ªÀÄļÀÆîgÀ UÁæªÀÄ ¥ÀAZÁAiÀÄvÀ ªÁå¦ÛAiÀÄ ªÀÄļÀÆîgÀ UÁæªÀÄzÀ D¹ÛUÀ¼ÁzÀ.

«.¦.¹.¸ÀA.

                    CdªÀiÁ¸ÀQªÀÄävÀÄÛ
            1.      202             ªÀÄ£É                    gÀÆ.50,000-00
            2.      179             ªÀÄ£É                    gÀÆ.50,000-00
            3.      251             RįÁèeÁUÉ                gÀÆ.25,000-00

§. gÁªÀÄzÀÄUÀðvÁ®ÆPÀ ¥ÉÊQ ªÀÄļÀÆîgÀ UÁæªÀÄzÀ d«ÄãÀÄUÀ¼ÀÄ.

            j.¸À.£ÀA.                J - UÀÄ ¨sÀÆPÀAzÁAiÀÄ
                     CdªÀiÁ¸ÀQªÀÄävÀÄÛ
            1. 186/7         9 - 10          12gÀÆ 68 ¥ÉÊ
                     gÀÆ.4,50,000-00





            2. 75/2C+§ 2 - 09            2gÀÆ. 04 ¥ÉÊ
                   gÀÆ.50,000-00
            3. 59          3 - 13        1gÀÆ. 92 ¥ÉÊ
                   gÀÆ.1,00,000-00
            4. 280/4       4 - 18        7gÀÆ. 26¥ÉÊ
                   gÀÆ.2,00,000-00

(hereinafter referred to as 'suit property' for short).

5. In plaint, it was stated that suit properties originally

belonged to propositus Hanumappa. He died in 2002 leaving

behind his wife Sundravva (plaintiff no.2), children Siddappa

(defendant no.1), Basuraddi (defendant no.2), Bheemaraddi

(plaintiff no.1) and Lalita (defendant no.4), who were his class-I

heirs. It was further stated that all suit properties were in their

joint possession and cultivation. It was also stated that there

was no prior partition of joint family properties and there was

subsistence of Hindu Undivided Family. It was further stated that

as defendants refused to effect partition, suit was filed.

6. During pendency of suit, defendant no.1 died.

Consequently, his wife and daughter were brought on record as

defendants no.1(a) and 1(b). Defendant no.1(a) filed written

statement, which was adopted by defendant no.1(b). Defendant

no.3 also filed separate written statement. Though defendants

no.4 to 10 were impleaded, they remained absent while

defendant no.2 was placed ex-parte.

7. Defendant no.1(a) in her written statement admitted

relationship and nature of suit properties. It was stated that

defendant no.1 was not traceable from 1995. Therefore, she had

filed a suit for declaration of his civil death and obtained decree

dated 07.12.2011 in O.S.No.83/2009. After said decree, they

were brought on record. Plaintiffs' claim of 2/5th share was

admitted. She also sought for allotment of appropriate share to

her and defendant no.1(b). Defendant no.3 admitted plaintiffs'

claim.

8. Based on pleadings, trial court framed following

issues:

"1. Whether plaintiffs prove that they are entitled for partition and separate possession of 2/5 t h share in suit properties by metes and bounds?

2. What order or decree?"

9. Thereafter plaintiff no.1 examined himself as PW-1.

Exhibits P.1 to P.15 were marked. On behalf of defendants,

defendant no.1(a) was examined as DW-1. No documentary

evidence was marked. On consideration, trial court answered

issue no.1 in affirmative and issue no.2 by decreeing suit.

10. Aggrieved thereby, defendants no.1(a) and 1(b) filed

appeal on several grounds. It was contended that judgment and

decree passed by trial Court was contrary to law, facts of case

and evidence on record. There was no proper appreciation of

evidence and conclusions arrived were erroneous. Trial Court

erred in concluding that plaintiff has got a share in her deceased

son's share also. Trial Court erred in excluding non-contesting

defendants from share in property.

11. Based on contentions, trial Court framed following

points for consideration:

"1. Whether judgment and decree passed by first appellate court in O.S.no.129/2009 dated 08.04.2013 is arbitrary, capricious and perverse?

2. Whether judgment and decree passed by first appellate court in O.S.no.129/2009 dated 08.04.2013 needs interference by this court?

3. What order?"

12. On consideration, appellate Court answered points

no.1 and 2 in negative and point no.3 by dismissing appeal.

Aggrieved thereby, defendants no.1(a) and 1(b) have filed this

second appeal.

13. Sri. D.B.Kallanagoudar, learned counsel appearing

for appellants submitted that impugned judgment and decree

passed by both Courts was contrary to law and unsustainable.

There was no proper appreciation of evidence and issues in

proper perspective. It was specifically contended that mother of

deceased defendant no.1 was not entitled to share in deceased

Siddappa's property as family of plaintiffs and defendants no.1

to 3 was still joint. Therefore, there is error in concluding that

plaintiff no.2 is a class-I heir. Learned counsel submitted that

following substantial question of law would arise for

consideration.

                  "Whether     allotment     of   share    to
            plaintiff   no.2   in    share   of    her    son

Siddappa along with defendants no.1(a) and 1(b) by both the Courts even when property still joint, is justified?"

14. On other hand, Sri. H.M. Dharigond, learned counsel

appearing for respondents no.1 and 2 and Sri. T.M. Nadaf,

learned counsel for respondent no.4 opposed appeal and

supported impugned judgment and decree. It was contended

that finding of trial Court regarding entitlement of share of

plaintiff no.2 in share of property of her deceased son as a class-

I heir was in accordance with law and concurrently held by both

the Courts. In view of the above, there was absolutely no merit

in appeal and sought for its dismissal.

15. From above submission, relationship of plaintiffs and

defendants is admitted. Nature of suit properties as joint family

properties of propositus Hanumappa is also admitted. While

plaintiffs contend that they being wife and son of propositus

were entitled to 1/5th share each in suit properties and trial

Court was justified in granting said share to them, defendants

no.1(a) and 1(b) contend that allotment of share to plaintiff no.2

even in share allotted to original defendant no.1 along with them

was not justified. The other portion of decree has virtually

remained uncontested.

16. In the case on hand, as on date of death of

propositus Hanumappa and his wife Sundravva was alive. Even

plaintiff no.1 and defendants no.1 to 3 were also alive. During

pendency of suit, as whereabouts of defendant no.1 was not

known from 1995, defendants no.1(a) and 1(b) being his wife

and daughter had filed O.S.No.83/2009 and obtained decree of

his civil death on 07.12.2011. Therefore, succession to joint

family properties between parties would be as per Section 6 of

Hindu Succession Act. It is not in dispute that parties belong to

Bombay - Karnataka area. Therefore, widow of a co-parcener

would also be entitled for a share in joint family properties.

Plaintiff no.2 being wife of propositus and mother of plaintiff no.1

and defendants no.1 to 3 would be entitled to equal share.

17. Plaintiff no.1 is admittedly son of propositus and as

such would be entitled to 1/5th share, as propositus had three

sons and one daughter. Therefore, allotment of 1/5th share in

properties of propositus would be justified.

18. Admittedly, during pendency of suit, defendants

no.1(a) and 1(b) have obtained decree of civil death of

defendant no.1 since his whereabouts were not known from

1995. As on date of passing of said decree, original defendant

no.1 was survived by his mother, wife and daughter all of whom

are included in class-I heirs to schedule of Hindu Succession Act.

As per Section 8(a) read with Sections 9 and 10 of Hindu

Succession Act, all class-I heirs would take share in property

simultaneously and equally to exclusion of class-II heirs. In view

of above, plaintiff no.2 - mother would be entitled to 1/3rd share

and defendants no.1(a) and 1(b) - wife and daughter, would be

entitled to 1/3rd share each in share of property of original

defendant no.1. Trial Court decreed suit as follows:

"Plaintiff -1 is entitled for 1/5th share in Houses bearing No.202, 179, vacant space No.251 and lands R.S.No.186/2, 79/2A+B & 59.

Plaintiff-1 is entitled for 1/10th share in land R.S.No.280/4.

Plaintiff-2 is entitled for 1/5 + 1/15th share in Houses bearing No.202, 179, vacant space No.251 and lands R.S.No.186/2, 75/2A+B & 59.

Plaintiff-2 is entitled for 1/10 + 1/30th share in land R.S.No.280/4.

Defendants-1(a) & (b) are entitled for 1/15th share each in Houses bearing No.202, 179, vacant space No.251 and lands R.S.No.186/2, 75/2A+B & 59, subject to payment of Court Fee.

Defendants-1 (a) & (b) are entitled for 1/30th share each in land R.S.No.280/4, subject payment of Court Fee.

Defendant-2 is entitled for 1/5th share in Houses bearing No.202, 179, vacant space No.251 and lands R.S.No.186/2, 75/2A+B & 59, subject to payment of Court Fee.

Defendant -2 is entitled for 1/10th share in land R.S.No.280/4, subject payment of Court Fee.

Defendant -3 is entitled for 1/5th share in Houses bearing No.202, 179, vacant space No.251 and lands R.S.No.186/2, 75/2A+B & 59, subject to payment of Court Fee.

Defendant -3 is entitled for 1/10th share in land R.S.No.280/4, subject payment of Court Fee.

Defendant -4 to 10 are entitled for ½ share in land R.S.No.280/4, subject to payment of Court Fee."

Allotment of shares to plaintiff no.2 and defendants

no.1(a) and 1(b) would therefore be justified. Hence, no

substantial question of law would arise for consideration. In the

result, I pass following :

ORDER

Accordingly, appeal is dismissed.

Sd/-

JUDGE

Rsh