Hanamavva W/O Kamalappa Teji vs Chandrappa Parasappa Teji
2022 Latest Caselaw 2440 Kant

                IN THE HIGH COURT OF KARNATAKA
                        DHARWAD BENCH

           DATED THIS THE 15TH DAY OF FEBRUARY 2022

                            BEFORE

       THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                   RSA.NO.100178/2018 (PAR)
BETWEEN

1.    HANAMAVVA W/O KAMALAPPA TEJI
      AGE: 40 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O: NEAR OLD BUS-STAND,
      BAGALKOTE-587101.

2.    KUMARI. LAXMI D/O KAMALAPPA TEJI
      AGE: 15 YEARS,
      OCC: STUDENT,
      R/O: NEAR OLD BUS-STAND,
      BAGALKOTE-587101.
      MINOR REPRESENTED BY HER
      MINOR GUARDIAN I.E. APPELLANT NO.1.
                                                 ... APPELLANTS

(BY SRI.SHRIHARSH A.NEELOPANT, ADV.)


AND

1.    CHANDRAPPA PARASAPPA TEJI
      AGE: 65 YEARS,
      OCC: AGRICULTURE,
      R/O: SONNA, PIN: 587116,
      TQ: BILAGI, BAGALKOTE.

2.    SMT.RATNAVVA W/O CHANDRAPPA TEJI
      AGE: 60 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O: SONNA, PIN: 587116,
      TQ: BILAGI, BAGALKOTE.
                               2




3.   BHIMAPPA S/O CHANDRAPPA TEJI
     AGE: 35 YEARS,
     OCC: AGRICULTURE,
     R/O: SONNA, PIN: 587116,
     TQ: BILAGI, BAGALKOTE.

4.   SURESH S/O CHANDRAPPA TEJI
     AGE: 33 YEARS,
     OCC: AGRICULTURE,
     R/O: SONNA, PIN: 587116,
     TQ: BILAGI, BAGALKOTE.

5.   SANGAPPA S/O CHANDRAPPA TEJI
     AGE: 31 YEARS,
     OCC: AGRICULTURE,
     R/O: SONNA, PIN: 587116,
     TQ: BILAGI, BAGALKOTE.

6.   SMT.RENVAVVA W/O VITHAL GOUDAR
     AGE: 29 YEARS,
     OCC: HOUSEHOLD WORK,
     R/O: SONNA, PIN: 587116,
     TQ: BILAGI, BAGALKOTE.

                                              ... RESPONDENTS

(BY SRI.GIRISH HIREMATH S.HIREMATH, ADV. FOR R1 TO R6)


      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO   SET   ASIDE   THE   JUDGMENT   AND   DECREE   PASSED   IN
R.A.NO.69/2014 DATED 30.01.2018 PASSED BY THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, BAGALKOTE AND CONFIRM THE
JUDGMENT AND DECREE PASSED BY THE PRINCIPAL SENIOR CIVIL
JUDGE, BAGALKOTE IN O.S.NO.3/2013 DATED 26.08.2014.


      THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                 3




                             JUDGMENT

The captioned regular second appeal is filed by the

plaintiffs questioning the judgment and decree of the first

appellate court feeling aggrieved by the quantification by

the first appellate court.

2. The appellants/plaintiffs filed suit for partition

and separate possession in O.S.No.3/2013 by contending

that suit schedule properties are joint family ancestral

properties and they represent the branch of Kamalappa

who is the eldest son of propositus Chandrappa and

therefore, claimed legitimate share in the suit schedule

properties. The trial court having assessed oral and

documentary evidence held that suit schedule properties

are joint family ancestral properties and decreed the suit

awarding 1/6th share. However, the trial court denied the

share to mother i.e., defendant No.2 in the share of

predeceased son Kamalappa. Feeling aggrieved, the father-

in-law of plaintiff No.1 filed an appeal before the first

appellate court. In appeal, the first appellate court has re-

determined the share and has awarded 2/21st share

together to the plaintiffs. This quantification is arrived at by

allotting 1/7th share to the husband of appellant No.1-

Kamalappa and the same is divided among plaintiffs and

defendant No.2 and therefore, the plaintiffs together were

allotted to 2/21st share.

3. Perused the judgments and decrees of the

courts below and also perused the family tree furnished in

the trial court records. Relations are not in dispute. Both

the courts below have concurrently held that the suit

schedule properties are joint family ancestral properties.

What remains is quantification. On perusal of the family

tree, defendant No.1-Chandrappa has a wife by name

Ratnavva who is arrayed as defendant No.2 and they have

five children. Therefore, Kamalappa would be entitled to

1/7th share as a co-parcener and in his 1/7th share, present

appellants and defendant No.2-Ratnavva who is the mother

of the deceased Kamalappa would take equal share. If 1/7th

share is divided into three parts, plaintiffs are entitled for

1/21 share and together they would take 2/21 share.

Therefore, the quantification done by the first appellate

court is perfectly correct and would not warrant any

interference at the hands of this court.

4. Learned counsel for the appellants would

vehemently argue and contend that since propositus

Chandrappa who is the husband of defendant No.2 is alive,

Ratnavva/defendant No.2 is not entitled to seek share. This

argument cannot be acceded to. Parties are admittedly

governed under the Bombay School of Law. It is not the

wife of defendant No.1 i.e., defendant No.1 who is

enforcing partition. It is the widow and daughter of

predeceased son Kamalappa who are before the court

seeking partition. Moment, the family members approach

civil court or amicably arrive at a family arrangement and

declared their intention to severe their ties in a joint family

property, the wife would automatically take a share at par

with husband and sons. Therefore, this contention

canvassed by the learned counsel for the appellants cannot

be acceded to and the same is contrary to the provisions of

Hindu Law and the same can be gathered from para 456 of

Mains Hindu Law 18th Edition.

5. Defendant No.2 who is the mother at par with

co-parceners would independently taken 1/7th share as well

as a mother of her predeceased son would also take a

share under Section 8 of the Hindu Succession Act.

Therefore, the quantification done by the first appellate

court is in accordance with law.

6. No substantial question of law arises for

consideration in the present appeal. Accordingly, the

appeal stands dismissed.

SD/-

JUDGE MBS/-