Karnataka High Court
Smt.Basavva vs Smt.Channabasavva on 21 June, 2022
Bench: E.S.Indireshpresided Byesij
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.5013 OF 2012
C/w
REGULAR SECOND APPEAL NO.100588 OF 2016
IN REGULAR SECOND APPEAL NO.5013/2012
BETWEEN:
1. BASAPPA S/O. GURUSIDDAPPA HULLUR
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O. BENNUR, TQ: BAGALKOT.
DIST: BAGALKOT-587 101
2. BASAVVA W/O. IRABASAPPA HULLUR
AGE: 45 YEARS, OCC: HOUSEHOLD WORK
R/O. BENNUR, TQ: BAGALKOT.
DIST: BAGALKOT-587 101
3. GOLAPPA S/O. IRABASAPPA HULLUR
AGE: 27 YEARS, OCC: AGRICULTURE,
R/O. BENNUR, TQ: BAGALKOT.
DIST: BAGALKOT-587 101
4. SHIVAPPA IRABASAPPA HULLUR
AGE: 25 YEARS, OCC: AGRICULTURE,
R/O. BENNUR, TQ: BAGALKOT.
DIST: BAGALKOT-587101
5. MURIGEPPA S/O. GURUSIDDAPPA HULLUR
2
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O. BENNUR, TQ: BAGALKOT.
DIST: BAGALKOT-587 101
6. CHANNAPPA S/O. GURUSIDDAPPA HULLUR
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O. BENNUR, TQ: BAGALKOT
DIST: BAGALKOT-587 101
7. GURUBASAVVA W/O. MAHADEVAPPA HULLUR
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O. BENNUR, TQ: BAGALKOT.
DIST: BAGALKOT-587 101
...APPELLANTS
(BY KUM CHITRA M. GOUNDALKAR, ADVOCATE FOR
SRI S.B.HEBBALLI, ADVOCATE)
AND:
CHANNABASAVVA
W/O. CHANNAPPA TOTAD
SINCE DEASED BY LRS
1.A SMT NEELAMMA,
D/O CHANNAPPA TOTAD
AGE: MAJOR, OCC: HOUSEHOLD
R/O. SECTOR 45, PLOT NO.51,
NAVANAGAR, BAGALKOT
(CMC BAGALKOT)
1.B SMT SHANTAVVA
D/O CHANNAPPA TOTAD
OCC: HOUSEHOLD WORK, AGE: MAJOR
R/O SECTOR 45, PLOT NO.51,
NAVANAGAR, BAGALKOT
(CMC BAGALKOT)
3
...RESPONDENTS
(BY SRI PRAKASH N.HOSAMANE, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE
JUDGMENT AND DECREE 22.09.2011 PASSED IN RA NO.
24/2009 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL
JUDGE, BAGALKOT, DISMISSING THE APPEAL FILED AGAINST
THE JUDGMENT DATED 15.06.2009 AND THE DECREE PASSED
IN OS NO.129/2006 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE, (JR.DN), BAGALKOT, DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
IN REGULAR SECOND APPEAL NO.100588/2016
BETWEEN:
1 . SMT.BASAVVA
W/O IRABASAPPA HULLUR,
AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
R/O: BENNUR, TAL: BAGALKOT,
DIST: BAGALKOT, PIN CODE: 587101.
2 . GOLAPPA
S/O IRABASAPPA HULLUR,
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O: BENNUR, TAL: BAGALKOT,
DIST: BAGALKOT, PIN CODE: 587101.
3 . SHIVAPPA
S/O IRABASAPPA HULLUR,
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O: BENNUR, TAL: BAGALKOT,
DIST: BAGALKOTE, PIN CODE: 587101.
4 . MURIGEPPA
S/O GURUSIDDAPPA HULLUR,
AGE: 60 YEARS, OCC: AGRICULTURE,
4
R/O: BENNUR, TAL: BAGALKOT,
DIST: BAGALKOT, PIN CODE: 587101.
5 . BASAPPA
S/O GURUSIDDAPPA HULLUR,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: BENNUR, TAL: BAGALKOT,
DIST: BAGALKOT, PIN CODE: 587101.
6 . CHANNAPPA
S/O GURUSIDDAPPA HULLUR,
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O: BENNUR, TAL: BAGALKOT,
DIST: BAGALKOT, PIN CODE: 587101.
7 . SMT.GURUBASAVVA
W/O MAHADEVAPPA HULLUR,
AGE: 49 YEARS, OCC: HOUSEHOLD,
R/O: BENNUR, TAL: BAGALKOT,
DIST: BAGALKOT, PIN CODE: 587101.
...APPELLANTS
(BY KUM CHITRA M. GOUNDALKAR, ADVOCATE FOR
SRI S.B.HEBBALLI, ADVOCATE)
AND:
CHANNABASAVVA
W/O. CHANNAPPA TOTAD
SINCE DEASED BY LRS
1A. SMT NEELAMMA,
D/O CHANNAPPA TOTAD
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O. SECTOR 45, PLOT NO.51,
NAVANAGAR, BAGALKOT-587 101
(CMC BAGALKOT)
5
1B. SMT SHANTAVVA
D/O CHANNAPPA TOTAD
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O SECTOR 45, PLOT NO.51,
NAVANAGAR, BAGALKOT-587 101
(CMC BAGALKOT)
...RESPONDENTS
(BY SRI PRAKASH N.HOSAMANE, ADVOCATE)
THIS REGULAR SECOND APPEAL FILED UNDER SECTION
100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT
AND DECREE DATED 08.03.2016 PASSED IN R.A.NO.32/2012
ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND
JMFC, BAGALKOT, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 30.01.2012 AND THE
DECREE PASSED IN FDP NO. 4 OF 2009 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE, BAGALKOT, DRAWING UP OF FINAL
DECREE THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THESE REGULAR SECOND APPEALS COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
These appeals are filed by defendants 2 to 8
challenging the judgment and decree dated 22.09.2011
passed in RA.No.24 of 2009 on the file of the I Additional
Senior Civil Judge, Bagalkot, dismissing the appeal and
confirming the judgment and decree dated 15.06.2009 passed
in OS.No.129 of 2006 on the file of the Principal Civil Judge
(Jr.Dn.), Bagalkot, decreeing the suit of the original plaintiff
and also the judgment and decree dated 08.03.2016 passed
in RA No.32 of 2012 on the file of the I Additional Senior Civil
Judge and JMFC, Bagalkot, dismissing the appeal and
confirming the final decree in FDP No.4 of 2009 on the file of
the Principal Civil Judge, Bagalkot.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and ranking
before the trial Court.
3. The relevant facts for adjudication of these appeals
are that the plaintiff and husband of defendant No.1 and
husband of defendant No.8 are the children of Channappa
Hullur and Karibasavva. It is stated in the plaint that the
schedule property bearing R.S.No.119/1, was belonged to one
Basappa Irabasappa Mali, (father of Karibasavva and grand
mother of the plaintiff) and he gifted the said property to his
daughter-Karibasavva during the year 1933 and after the
death of the said Karibasavva, the plaintiff-Channabasavva
along with the husband of defendant No.1-Gurusiddappa
Hullur and defendant No.8- Mahadevappa Hullur, respectively
are entitled for equal share in the suit schedule property. It is
the case of the plaintiff that the defendants denied the share
of the plaintiff in the suit schedule property, accordingly, the
plaintiff has filed OS No.129 of 2006 on the file the trial Court
seeking partition and separate possession in respect of suit
schedule property.
4. After service of summons, the defendants entered
appearance, however, defendants 2 to 8 filed detailed written
statement denying the averments made in the plaint.
Defendant No.1 remained absent. It is the specific case of
contesting defendants that husband of defendant No.1-
Gurusiddappa and husband of defendant No.8-Mahadevappa
have paid Rs.200/- on 17.05.1933 to their mother-
Karibasavva to secure the property and therefore, defendants
2 to 8 are having legitimate share in respect of suit schedule
property and further stated that as the plaintiff got married at
the age of 12 years and residing in her matrimonial home, she
is not entitled for share in the suit schedule property. It is also
the case of the defendants that the said Karibasavva
relinquished her right in favor of her sons-Gurusiddappa
Hullur and Mahadevvapa Hullur as per mutation register dated
27.06.1953 and accordingly, sought for dismissal of the suit.
5. On the basis of the rival pleadings, the trial Court
has formulated issues for its consideration. In order to
establish their case, original plaintiff examined himself as PW1
and got marked 07 documents as Exs.P1 to P7. On the other
hand, defendants examined one witness as DW1 and no
documents were produced by the defendants.
6. The trial Court, after considering the material on
record, by its judgment and decree dated 15.06.2009 decreed
the suit of the plaintiff holding that the plaintiff is entitled for
1/3rd share in the suit schedule properties and being
aggrieved by the same, defendants 2 to 8 have preferred
appeal in RA.No.24 of 2009 on the file of First Appellate Court.
The said appeal was resisted by the plaintiff. The First
Appellate Court after re-appreciating the facts on record, by
its judgment and decree dated 22.09.2011 dismissed the
appeal and confirmed the judgment and decree passed by the
trial Court in OS.No.129 of 2006. Against the said impugned
judgment and decree passed by the courts below, the
appellants-defendants 2 to 8 have filed Regular Second
Appeal No. 5013 of 2012. In the meanwhile, the plaintiff
preferred FDP No.4 of 2009 before the trial Court and the said
proceedings came to be finalised by drawing up of final decree
on 30.01.2012. Being aggrieved by the same, the appellants-
defendants 2 to 8 preferred RA No.32 of 2012 before the First
Appellate Court and the said appeal came to be dismissed by
the First Appellate Court and being aggrieved by the same,
the appellant-defendants 2 to 8 have filed Regular Second
Appeal No.10058 of 2016 before this Court.
7. I have heard Kum Chitra M. Goundolkar, learned
counsel appearing on behalf of learned counsel Sri S.B.
Hebballi, for the appellants and Sri Prakash N.Hosamane,
learned counsel appearing for the respondents.
8. Kum Chitra M. Goundolkar, learned counsel for the
appellants submits that the impugned judgment and decree
passed by both the courts below requires interference in these
appeals as both the courts below have not considered the fact
that Karibasavva-mother of the original plaintiff had
relinquished her rights in favour of husband of defendant
No.1-Gurusiddappa Hullur and husband of defendant No.8-
Mahadevappa Hullur as the husband of defendant No.1 and
husband defendant No.8 have contributed towards the
execution of the gift dated 17.05.1933 and accordingly, she
submitted that impugned judgment and decree passed by the
Courts below require interference in these appeals.
9. Sri Prakash N.Hosamane, learned counsel for the
respondents sought to justify the impugned judgment and
decree passed by the Courts below and argued that the
plaintiff is the daughter of Karibasavva and Karibasavva got
the properties from her father Basappa Irabasappa Mali and
therefore, the finding recorded by both the courts below are
just and proper and does not call for interference in these
appeals.
10. Heard the learned counsel appearing for both the
parties and carefully examined the finding recorded by the
both the courts below. In order to ascertain the relationship
between the parties, following genealogical tree is to be
looked into.
Chennappa Hullur (Dead)
Karabasavva (Wife Dead)
Gurusiddappa Mahadevappa Channabasavva
(Dead) (Dead) (plaintiff)
Laxmawwa Gurubasappa
(1st Def.) (8th Def.))
Irabasappa Murigeppa Basappa Channappa
(Dead) (5th Def.) (6th Def.) (7th Def.)
Basavva (2nd Def.)
Gollappa Hullappa
(3rd Def.) (4th Def.)
11. Perusal of the records and genealogical tree would
indicate that husband of defendant No.1 and husband of
defendant No.8 namely, Gurusiddappa Hullur and
Mahadevappa Hullur and the plaintiff-Channabasavva are the
children of Channappa Hullur and Karibasavva. Karibasavva
got the suit schedule property from her father Basappa
Irabasappa Mali by registering gift deed dated 17.05.1933. It
is not disputed by the defendants that the plaintiff is the sister
of the Gurusiddappa Hullur and Mahadevappa Hullur and
therefore, the plaintiff is having 1/3rd share in the property left
by her mother-Karibasavva. It is the specific case of
defendants 2 to 8 that the Karibasavva relinquished her right
in favour of her sons i.e. husband of defendant No.1 and
husband of defendant No.8. However, no documents has been
produced by the defendants to prove the said fact of
relinquishment made in respect of said Gurusiddappa Hullur
and Mahadevappa Hullur and therefore, having considered the
detailed discussion made by the trial Court, I am of the view
that, the trial Court, rightly decreed the suit in favor of
plaintiff holding that the plaintiff is entitled for 1/3rd share in
the suit schedule property. In this regard, I have carefully
considered the finding recorded by the First Appellate Court,
wherein, First Appellate Court, after re-appreciating the
material on record and taking into account the language
employed under Section 15 of Hindu Succession Act, rightly
held that the plaintiff is entitled for 1/3rd share in the suit
schedule property. I have also noticed that FDP No.4 of 2009
was preferred before the trial Court and the trial Court
effected the partition and divided the properties accordingly,
and said decree was confirmed by the First Appellate Court in
RA No. 32 of 2012. In that view of the matter, the defendants
have not produced relevant and cogent documents before the
Courts below to establish their right in the suit schedule
property and in view of, Section 15 of Hindu Succession Act,
the plaintiff is entitled for 1/3rd share in the suit schedule
property. As the appellants have not made out case for
formulation of substantial question of law as required under
Section 100 of Code of Civil Procedure, both the appeals are
rejected confirming the judgment and decree passed by the
Courts below. In the result, I pass the following:
ORDER
i) Regular Second Appeals are dismissed;
ii) Judgment and decree dated 22.09.2011
passed in RA.No.24 of 2009 and the
judgment and decree dated 08.03.2016
passed in RA No.32 of 2012 on the file of the
First Appellate Court, are confirmed;
iii) Judgment and decree passed by the Principal
of 2006 and Final Decree drawn in FDP No.4
of 2009 are confirmed.
Sd/-
JUDGE
SB
