Karnataka High Court
Chinnappa A/F Timmappa Hulkund vs Laxmibai W/O Timmappa Hulkund on 3 January, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 03RD DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 5468 OF 2012 (PAR)
BETWEEN
1. CHINNAPPA A/F TIMMAPPA HULKUND,
AGE: 32 YEARS,
OCC: AGRICULTURE,
R/O: AMMALAZERI-580013,
TQ: BILAGI, DIST: BAGALKOT.
2. BHAGAVANT S/O KALLAPPA DESAI,
AGE: 67 YEARS,
OCC: AGRICULTURE,
R/O: MANTUR-580013,
TQ: MUDHOL, DIST: BAGALKOT.
3. KALLAPPA S/O BHAGAVANT DESAI,
AGE: 39 YEARS,
OCC: AGRICULTURE,
R/O: MANTUR-580013,
TQ: MUDHOL, DIST: BAGALKOT.
...APPELLANTS
(BY SRI. GIRISH YADWAD, ADVOCATE)
AND
1. LAXMIBAI W/O TIMMAPPA HULKUND,
AGE: 68 YEARS,
OCC: AGRICULTURE,
R/O: AMMALAZERI-580013,
TQ: BILAGI, DIST: BAGALKOT.
2. TARABAI W/O. BHIMAPPA HULKUND,
AGE: 72 YEARS,
OCC: HOUSEHOLD WORK,
R/O: AMMALAZERI-580013,
2
TQ: BILAGI, DIST: BAGALKOT.
3. SHOBHA W/O PARAMANAND MALALI,
AGE: 52 YEARS,
OCC: HOUSEHOLD WORK,
R/O: AMMALAZERI-580013,
TQ: BILAGI, DIST: BAGALKOT.
4. ASHOK S/O BHIMAPPA HULKUND,
AGE: 46 YEARS,
OCC: AGRICULTURE,
R/O: AMMALAZERI-580013,
TQ: BILAGI, DIST: BAGALKOT.
5. BASAVARAJ S/O BHIMAPPA HULKUND,
AGE: 48 YEARS,
OCC: AGRICULTURE,
R/O: AMMALAZERI-580013,
TQ: BILAGI, DIST: BAGALKOT.
6. MOHAN S/O BHIMAPPA HULKUND,
AGE: 46 YEARS,
OCC: AGRICULTURE,
R/O: AMMALAZERI-580013,
TQ: BILAGI, DIST: BAGALKOT.
...RESPONDENTS
(BY SRI. K. L. PATIL, ADV., FOR R1;
SRI. H. R. PATIL, ADV., FOR C/R1)
THIS RSA IS FILED U/S.100 R/W. ORDER XLII RULE 1 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 08.03.2012 PASSED
IN R.A.NO.85/2009 ON THE FILE OF DISTRICT JUDGE, BAGALKOT,
PARTLY ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT
DATED 20.04.2009 AND THE DECREE PASSED IN O.S.NO.184/2005
ON THE FILE OF THE CIVIL JUDGE (SR.DN.) BILAGI, PARTLY
DECREEING THE SUIT FILED FOR PARTITION & SEPARATE
POSSESSION.
3
THIS RSA COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the defendants
questioning the concurrent judgment and decree passed in
partition suit filed by respondent No.1-plaintiff.
2. The facts leading to the case are as under:
The appellant No.1-defendant No.1 is the adopted
son of respondent No.1-plaintiff and propositus-Timmappa.
Respondent No.1-plaintiff was compelled to file a partition
suit since appellant No.1-defendant No.1 claimed absolute
title over the properties in question on the ground that there
was oral partition between himself and his adoptive father-
Timmappa. This led to litigation and the present respondent
No.1-plaintiff, who is none other than the adoptive mother of
appellant No.1-defendant No.1 was compelled to file a
partition suit in O.S.No.184/2005.
3. Appellant No.1-defendant No.1 having tendered
his appearance before the Trial Court filed written statement
and stoutly denied the entire averments made in the plaint.
Appellant No.1-defendant No.1 took a specific contention in
his written statement that during the lifetime of his adoptive
father-Timmappa, there was oral partition and therefore,
there is severance in the family and as such, suit filed by
respondent No.1-plaintiff is liable to be dismissed.
4. Respondent No.1-plaintiff, in order to substantiate
her claim let in ocular evidence by examining herself as PW1
and relied on exhibited documents marked vide Ex.P1 to
Ex.P10. Appellant No.1-defendant No.1 let in rebuttal
evidence by examining himself as DW1 and the purchasers
i.e. appellants 2 and 3 also let in their rebuttal evidence. The
Trial Court having appreciated the oral and documentary
evidence, recorded a finding that the suit schedule properties
are joint family ancestral properties and respondent No.1-
plaintiff being a widow of Timmappa, has legitimate half
share in the suit schedule properties. The Trial Court having
given its anxious consideration to the evidence on record and
in the absence of rebuttal evidence negatived the contention
of appellant No.1-defendant No.1 that there was family
partition during the year 1992 and the said lands were
allotted to his share as alleged in para No.5 of the written
statement. On the said set of reasons, the Trial Court decreed
the suit filed by respondent No.1-plaintiff awarding half share
in the suit schedule properties.
5. The appellant No.1-defendant No.1 being
aggrieved by the judgment and decree passed by the Trial
Court preferred an appeal before the First Appellate Court in
R.A.No.85/2009. The First Appellate Court concurred with the
finding of the Trial Court insofar as granting half share to
respondent No.1-plaintiff, however the second relief which
was granted in favour of defendants 4 to 8 in regard to right
of pre-emption was set-aside and the appeal was allowed in
part to that extent.
6. Defendants 1 to 3 assailing the decree passed by
the Courts below granting half share in favour of respondent
No.1-plaintiff are before this Court.
7. Heard the learned counsel for appellants and
perused the judgment and decrees, which are under
challenge.
8. Admittedly, the lis between the parties fall within
the provisions of Bombay School of Law. It is a trite law that
under Bombay School Law, a widow in the event of partition
is entitled for equal share along with her husband as well as
Class-I heirs. The entire basis of denying a share to
respondent No.1-plaintiff is that there was oral partition
between Timmappa and present appellant No.1, who claims
to be the adopted son. It is nowhere elicited during the trial
that respondent No.1-plaintiff was a party to the said alleged
oral partition, which took place in the year 1992. If she is not
a party to the said oral partition, which is of the year 1992,
even if there was oral partition between the adopted son and
his father, the same would not bind the widow i.e. respondent
No.1 as she has an independent right under the Bombay
School of Law.
9. The position of wife as regards the right of
partition in mithakshara law relating to Bombay School has
been considered in Mulla's Hindu Law, 20th Edition Volume-
I, paragraph 314 at Page 579 which reads as under:
"314. WIFE:
10. "(1) A wife cannot herself demand a
partition, but if partition does take place
between her husband and his sons, she is
entitled (except in Southern India) to receive a
share equal to that of a son and to hold and
enjoy that share separately even from her
husband."
11. This aspect has been dealt by the Trial Court and
confirmed by the First Appellate Court. If respondent No.1-
plaintiff was not a party to the oral partition, then even if
there was any oral partition, the same would not affect the
legitimate rights of respondent No.1-plaintiff. I do not find
any substantial question of law in the present case on hand.
The appeal is devoid of merits and accordingly stands
dismissed.
12. In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive for
consideration and are dismissed accordingly.
Sd/-
JUDGE
YAN
