Gangappa S/O. Basalingappa Navi vs Sumavva D/O. Irappa Navi
2022 Latest Caselaw 246 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 06TH DAY OF JANUARY, 2022
                         BEFORE

     THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

               R.S.A. No.100292/2014 (PAR)


BETWEEN

SRI.GANGAPPA S/O. BASALINGAPPA NAVI
AGE: 55 YEARS, OCC: AGRICULTURE
R/AT: SASALATTI, TQ: JAMKHANDI 587301,
DIST: BAGALKOTE.
                                                ...APPELLANT
(BY SRI.MAHANTESH MATHAD, ADVOCATE FOR
 SRI.MRUTYUNJAY TATA BANGI, ADV)

AND

1.     KUMARI SUMAVVA D/O. IRAPPA NAVI
       AGE: 20 YEARS

2.     KUMARI KASTURI D/O. IRAPPA NAVI
       AGE: 22 YEARS

3.     SMT.KASHAWWA W/O. IRAPPA NAVI
       AGED ABOUT: 40 YEARS

4.     SRI.IRAPPA S/O. BASALINGAPPA NAVI
       AGE: 51 YEARS

       ALL ARE R/AT SASALATTI
       TQ: JAMKHANDI, 587 301
       DIST: BAGALKOTE.
                                           ...RESPONDENTS

(BY SRI.RAVI.S.BALIKAI, ADVOCATE FOR R1 TO 3;
SRI.S.S.YALIGAR, ADVOCATE FOR R4)
                                 2




      THIS APPEAL IS FILED U/S.100 OF CPC., AGAINST THE
JUDGEMENT    &   DECREE    DTD:24.11.2012   PASSED   IN
R.A.NO.50/2008 ON THE FILE OF FAST TRACK COURT,
JAMAKHANDI, DISMISSING THE APPEAL, FILED AGAINST THE
JUDGMENT AND DECREE DTD:02.06.2008 PASSED IN O.S.
NO.20/2003 ON THE FILE OF THE CIVIL JUDGE (JR.DN.)
BANAHATTI, DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.

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

                         JUDGMENT

The unsuccessful first defendant in O.S.No.20/2003

on the file of Civil Judge (Jr Dn) Banahatti is in appeal

challenging the concurrent finding in a suit for partition

filed by the wife and two children of 1st defendant. There is

no dispute relating to the relationship of the parties.

2. It is also admitted that the properties are the

coparcenary properties. The genealogy furnished by the

appellant would indicate that one Basalintappa was

propositus. He had two sons by name Irappa and

Gangappa. There was partition between Irappa and

Gangappa. In the said partition some of the coparcenary

properties were allotted to the share of Irappa. These facts

are also not in dispute. It appears, rift arose between the

plaintiffs and the 1st defendant. The wife of Irappa, along

with two children namely Sumavva and Kasturi filed the

suit against Irappa. All of them together, are seeking

partition of 3/4th share in the suit properties. The trial

Court after perusing the materials on record, decreed the

suit.

3. Being aggrieved by the judgment and decree

passed by the trial Court, the 1st defendant preferred an

appeal in R.A.No.50/2008 on the file of Fast Track, Court

at Jamakhandi. The Fast Track Court after considering the

materials on record dismissed the appeal confirming the

judgment and decree passed by the trial Court. The first

defendant is before this Court as appellant in this Second

Appeal.

4. Heard the learned counsel appearing for the

appellant as well as the contesting respondents.

5. Perused the judgment and decree passed by

the trial Court as well as the First Appellate Court.

Admittedly, the properties are the coparcenary properties,

which are fallen to the share of 1st defendant in the family

partition. Learned counsel for the appellants would urge

that the wife cannot file a suit for partition as such the suit

is not maintainable and the trial Court could not have

decreed the suit. This contention is not acceptable for the

simple reason that the suit is filed not only by the wife but

also by two children of Irappa. It is settled position of law

that in the event of partition between the father and son,

the wife is also entitled to a share equal to that of a son.

In that view of the matter, the suit filed by children along

with their mother is maintainable, and wife being entitled

to a share has also joined her children. Thus she is a

necessary party to the suit. The contention that she cannot

maintain a suit is too technical given the fact that she is a

sharer. In case the suit were to be filed only by the

children of Irappa then wife of Irappa will have to be

arrayed as one of the defendants along with her husband

and a share is to be allotted to her. Under these

circumstances, the judgments and decrees of the trial

Court as well as the first appellate Court, do not suffer

from any illegality.

6. There is no dispute relating to the quantum of

share declared by the trial Court, which is confirmed by the

Appellate Court. No substantial question of law arises for

consideration.

7. Accordingly, appeal is dismissed.

8. In view of dismissal of the main appeal,

pending applications, if any, do not survive for

consideration and accordingly, they are disposed of.

SD/-

JUDGE

am