Karnataka High Court
Siddavva vs Sankappa on 5 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC-D:14215-DB
RFA No.100171 of 2014
C/W RFA No.100211 of 2014
RFA.CROB No.100002 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.100171 OF 2014
C/W REGULAR FIRST APPEAL NO.100211 OF 2014
RFA CROSS OBJ NO.100002 OF 2015
IN RFA NO.100171 OF 2014:
BETWEEN:
1. NINGAPPA
S/O. DODDASANKAPPA SOMANNAVAR,
SINCE DECEASED,
LRs., ARE ALREADY ON RECORD AS
APPELLANT NO.2 AND RESPONDENTS
NO.1 TO 4 VIDE ORDER DATED 05.09.2023.
2. SHRI. NAVEEN
S/O. NINGAPPA SOMANNAVER,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O: VAKKALUTAN ONI,
Digitally signed
by K M
SOMASHEKAR
SAUNDATTI-591 126, DIST: BELGAUM.
KM
Location: HIGH
COURT OF
KARNATAKA
SOMASHEKAR DHARWAD
...APPELLANTS
BENCH
Date:
2023.12.13
(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE FOR
11:43:58
+0530
APPELLANT NO.2)
AND:
1. SHRI. SANKAPPA
S/O. NINGAPPA SOMANNAVAR,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O. VAKKALUTAN ONI,
SAUNDATTI - 591 126,
DIST: BELGAUM.
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NC: 2023:KHC-D:14215-DB
RFA No.100171 of 2014
C/W RFA No.100211 of 2014
RFA.CROB No.100002 of 2015
2. SMT. YALLAWWA
W/O. NINGAPPA SOMANNAVAR,
AGE: 69 YEARS, OCC: HOUSEHOLD,
R/O. VAKKALUTAN ONI,
SAUNDATTI-591 126, DIST: BELGAUM.
3. SHRI. BASAVARAJ
S/O. NINGAPPA SOMANNAVAR,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: VAKKALUTAN ONI,
SAUNDATTI-591 126,
DIST: BELGAUM.
4. SMT. LAXMAVVA
W/O. NINGAPPA KANAJ,
AGE: 68 YEARS, OCC: HOUSEHOLD,
R/O: DODDA ONI, HOMBAL-582 204,
TQ AND DIST: GADAG.
5. SMT. SIDDAVVA
W/O. BASAPPA @BASAVRAJ HALLAD,
AGE: 69 YEARS,
OCC: HOUSEHOLD WORKS,
R/O. HALLAD ONI, NAVALAGUND,
TQ: NAVALAGUND-582208,
DIST:DHARWAD.
6. SMT. SHANKREVVA
D/O. BASAPPA @ BASAVARAJ HALLAD,
AGE: 29 YEARS, OCC: HOUSEHOLD,
R/O: HALLAD ONI,
NAVALGUND-582 208,
DIST: DHARWAD.
...RESPONDENTS
(BY SRI. SHIVARAJ S. BALLOLI, ADV. FOR R1;
SRI.MRUTYUNAJAYA R.YARAGAMBLIMATH, ADV. FOR
R2 AND R4;
SRI.SURAJ M.KATAGI, ADV. FOR
SRI.V.G.BHAT, ADV. FOR R3;
NOTICE TO R5 AND R6 ARE SERVED)
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NC: 2023:KHC-D:14215-DB
RFA No.100171 of 2014
C/W RFA No.100211 of 2014
RFA.CROB No.100002 of 2015
THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W. SEC.
96 OF CPC 1908., AGAINST THE JUDGMENT AND DECREE DATED
31.07.2014 PASSED IN O.S.NO.45/2011 ON THE FILE OF THE
SENIOR CIVIL JUDGE, SAUNDATTI, DECREEING THE SUIT FILED
FOR PARTATION AND SEPARATE POSSESSION.
IN RFA NO.100211 OF 2014:
BETWEEN:
BASAVARAJ
S/O. NINGAPPA SOMANNAVAR,
AGE: 44 YEARS, OCC: ADVOCATE AND
AGRICULTURE, R/O: VAKKALUTAN ONI,
SAUNDATTI, DIST: BELGAUM-591126.
...APPELLANT
(BY SRI. SURAJ M.KATAGI, ADVOCATE FOR
SRI.V.G.BHAT, ADVOCATE)
AND:
1. SANKAPPA
S/O. NINGAPPA SOMANNAVAR,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O. VAKKALUTAN ONI, SAUNDATTI,
TQ: SAUNDATTI, DIST: BELGAUM-591 126.
2. NINGAPPA
S/O. DODDA-SANKAPPA SOMANNAVAR,
AGE: 72 YEARS, OCC: AGRICULTURE,
R/O. VAKKALUTAN ONI, SAUNDATTI,
TQ: SAUNDATTI, DIST: BELGAUM-591 126.
3. SMT. YALLAWWA
W/O. NINGAPPA SOMANNAVAR,
AGE: 70 YEARS, OCC: HOUSEHOLD WORKS,
R/O. VAKKALUTAN ONI, SAUNDATTI,
TQ: SAUNDATTI, DIST: BELGAUM-591 126.
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RFA No.100171 of 2014
C/W RFA No.100211 of 2014
RFA.CROB No.100002 of 2015
4. NAVEEN
S/O. NINGAPPA SOMANNAVER,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O. VAKKALUTAN ONI, SAUNDATTI,
TQ: SAUNDATTI, DIST: BELGAUM-591 126.
5. SMT. LAXAMAVVA
W/O. NINGAPPA KANAJ,
AGE: 69 YEARS, OCC: AGRICULTURE,
R/O: DODDA ONI, HOMBAL,
TQ AND DIST: GADAG-582101.
6. SMT. SIDDAVVA
W/O. BASAPPA @BASAVRAJ HALLAD,
AGE: 69 YEARS, OCC: HOUSEHOLD WORKS,
R/O. HALLAD ONI, NAVALAGUND,
TQ: NAVALAGUND, DIST:DHARWAD-582208.
7. SMT. SHANKREVVA
D/O. BASAPPA @ BASAVARAJ HALLAD,
AGE: 30 YEARS, OCC: HOUSEHOLD WORKS,
R/O: HALLAD ONI, NAVALAGUND,
TQ: NAVALAGUND, DIST: DHARWAD-582208.
...RESPONDENTS
(BY SRI. SHIVARAJ S. BALLOLI, ADV. FOR R1;
SRI.M.S.WANTAMURI, ADV. FOR R2 AND R4;
SMT.ARADHANA MANVI, ADV.
FOR SRI.JAGADISH PATIL, ADV. FOR R6;
NOTICE TO R3 AND R5 ARE SERVED;
NOTICE TO R7 IS HELD SUFFICIENT)
THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W. SEC.
96 OF CPC 1908., AGAINST THE JUDGMENT AND DECREE DATED
31.07.2014 PASSED IN O.S.NO.45/2011 ON THE FILE OF THE
SENIOR CIVIL JUDGE, SAUNDATTI, DECREEING THE SUIT FILED
FOR PARTATION AND SEPARATE POSSES0SION.
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RFA No.100171 of 2014
C/W RFA No.100211 of 2014
RFA.CROB No.100002 of 2015
IN RFA CROB. NO.100002 OF 2015:
BETWEEN:
SMT. SIDDAVVA
W/O. BASAPPA @ BASAVRAJ HALLAD,
AGE: 68 YEARS, OCC: HOUSEHOLD,
R/O. HALLAD ONI, NAVALGUND-582208,
DIST: DHARWAD.
...CROSS-OBJECTOR
(BY SMT. ARADHANA MANVI, ADVOCATE FOR
SRI.JAGADISH PATIL, ADVOCATE)
AND:
1. SHRI. SANKAPPA
S/O. NINGAPPA SOMANNAVAR,
AGE: 49 YEARS,
OCC: AGRICULTURE,
R/O. VAKKALUTAN ONI,
SAUNDATTI - 591 126, DIST: BELAGAVI.
2. SHRI. NINGAPPA
S/O. DODDASANKAPPA SOMANNAVAR,
AGE: 71 YEARS,
OCC: AGRICULTURE,
R/O. VAKKALUTAN ONI,
SAUNDATTI, DIST: BELAGAVI.
3. SHRI. NAVEEN
S/O. NINGAPPA SOMANNAVER,
AGE: 33 YEARS,
OCC: AGRICULTURE,
R/O: VAKKALUTAN ONI,
SAUNDATTI, DIST: BELAGAVI-591 126.
4. SMT. YALLAWWA
W/O. NINGAPPA SOMANNAVAR,
AGE: 69 YEARS,
OCC: HOUSEHOLD,
R/O. VAKKALUTAN ONI,
SAUNDATTI, DIST: BELAGAVI-591 126.
5. SHRI. BASAVARAJ
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RFA No.100171 of 2014
C/W RFA No.100211 of 2014
RFA.CROB No.100002 of 2015
S/O. NINGAPPA SOMANNAVAR,
AGE: 43 YEARS,
OCC: AGRICULTURE,
R/O: VAKKALUTAN ONI,
SAUNDATTI, DIST: BELAGAVI-591 126.
6. SMT. LAXMAVVA
W/O. NINGAPPA KANAJ,
AGE: 68 YEARS,
OCC: HOUSEHOLD,
R/O: DODDA ONI, HOMBAL,
TQ AND DIST: GADAG-582 204.
7. SMT. SHANKREVVA
D/O. BASAPPA @ BASAVARAJ HALLAD,
AGE: 29 YEARS,
OCC: HOUSEHOLD,
R/O: HALLAD ONI, NAVALGUND,
DIST: DHARWAD-582 208.
...RESPONDENTS
(BY SRI. SHIVARAJ S. BALLOLI, ADV. FOR R1;
SRI.M.S.WANTAMURI, ADV. FOR R2 AND R3;
SRI.MRUTYUNAJAYA R.YARAGAMBLIMATH, ADV. FOR
R4 AND R6; NOTICE TO R7 IS SERVED)
THIS RFA CROB IS FILED IN RFA NO.100171/2014 IS
FILED UNDER ORDER 41 RULE 22 R/W. SEC. 96 OF CPC 1908.,
AGAINST THE JUDGMENT AND DECREE DATED 31.07.2014
PASSED IN O.S.NO.45/2011 ON THE FILE OF THE SENIOR CIVIL
JUDGE, SAUNDATTI, DECREEING THE SUIT FILED FOR
PARTATION AND SEPARATE POSSESSION.
THESE RFAs & RFA CROSS-OBJECTIONS COMING ON FOR
FURTHER HEARING, THIS DAY, RAMACHANDRA D. HUDDAR, J,
DELIVERED THE FOLLOWING:
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RFA No.100171 of 2014
C/W RFA No.100211 of 2014
RFA.CROB No.100002 of 2015
JUDGMENT
The appeals in R.F.A. No.100171/2014 by defendants
No.1 and 4, and R.F.A. No.100211/2014 by defendant No.3
arise out of a judgment and decree in O.S. No.45/2011
dated 31.07.2014 passed by the Senior Civil Judge,
Saundatti. Whereas the cross-objections in RFA Crob
No.100002/2015 is by defendant No.6 only questioning the
apportionment of shares by the Trial Court.
2. As these two regular appeals and the cross-
objections arise out of the judgment and decree passed in
O.S.No.45/2011, the common arguments is heard.
Therefore, common judgment is passed.
3. For the purpose of convenience, the parties to
these appeals and cross-objections are referred to as per
their rankings before the Trial Court.
4. Brief facts of the case leading up to the filing of
these appeals and cross objection are:
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That the plaintiff filed the aforesaid suit against the
defendants seeking relief of declaration that alleged
so-called gift deed executed by defendant No.1 in favour of
defendant No.4 dated 30.03.2010 in respect of Sy.No.607/1
and 867/1+2 is not binding on his share. Further, the
plaintiff also sought for the relief of partition and separation
possession of 1/3rd share in all the properties mentioned in
the schedule appended to the plaint.
It is the case of the plaintiff that, the propositus is one
Dodda Sankappa. He died leaving behind defendants No.1,
5 and 6 as his legal heirs. Defendants No.5 & 6 are the
sisters of defendant No.1. It is his case that, defendant
No.1 has got two wives, the first wife by name Yallavva,
who is arrayed as defendant No.2; and the second wife by
name Ratnavva. The plaintiff and one Danappa are the sons
of Ningappa through the first wife Yallavva. Defendants
No.3 and 4 are the sons of Ningappa through the second
wife Ratnavva. The plaintiff's brother Danappa has gone in
adoption to the family of one Narayanappa Morabad.
Ratnavva being the second wife of defendant No.1 and
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hence, she is not entitled to get any share. Therefore, she
is not arrayed as a party to the suit.
It is the further case of the plaintiff that, defendants
No.5 and 6 are the twins born in the year 1949 prior to the
commencement of Hindu Succession Act, 1956. But their
name is appearing in the revenue records in respect of
Sy.No.606/A and therefore, she is arrayed as formal party
to the suit to avoid technicalities. Likewise, the name
defendant No.7 also appears in the revenue records and
though she has no right, title and interest in the property,
she has been made as a party to the suit.
It is further case of the plaintiff that, the defendants
No.3 and 4 being sons of defendant No.1 through the
second wife Ratnavva. they are not entitled to any share
during the life time of defendant No.1, but even then their
name is appearing in respect of the landed properties
bearing Sy.No.238/3, 867/1+2 and 607/1 and open space
bearing CTS No.3420/D/12. Therefore, they are arrayed as
parties to avoid technical flaws.
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It is the further case of the plaintiff that, defendant
No.1, illegally, created a gift deed in respect of
Sy.No.607/1, 867/1+2 in favour of defendant No.4 without
the knowledge and consent of the plaintiff behind his back.
It was registered on 30.03.2010. After getting knowledge
about the execution of the said gift deed, when he
questioned defendant No.1, (defendant No.1) did not give
any answer to the same. Just to deprive the plaintiff of his
right and his legitimate share in the suit schedule
properties, defendant No.1 illegally created a concocted gift
deed in favour of defendant No.4. The said gift deed is not
binding on the share of the plaintiff. It is alleged that,
though he demanded the defendants to effect partition,
there was a flat denial of the same and therefore, the suit
was filed by the plaintiff seeking the relief of partition and
separate possession of the suit schedule properties by
metes and bounds. It is further alleged that, defendant
No.1 was addicted to bad vices and in order to get money,
he is trying to create charges and alienate the properties.
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Hence, it was prayed by the plaintiff to decree the suit as
prayed for.
Before the Trial Court, pursuant to the suit summons,
all the defendants appeared through their respective
counsels. Defendant No.6 filed written statement
contending that, the whole case of the plaintiff is false and
frivolous. Plaintiff is not entitled for the relief of partition
and separate possession of the suit schedule properties. So
far as the relationship between the parties is concerned,
she admits the same. According to her, she is born in the
year 1949. Further, she states that the propositus
Doddasankappa was adopted by Yallawwa W/o.Satyappa
Somannavar. On the death of Yallawwa, the propositus got
the properties bearing No.838 and 867/1 as per
M.E.No.7275 dated 20.09.1955. The wife of Doddasankappa
succeeded to some of the properties from her mother. It is
further contended that, during the life time of
Doddasankappa and his wife Kashibai, there was no
partition of the ancestral properties in the family. It is
further contended that, on the death of Doddasankappa, his
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wife Kashibai, along with defendants No.1, 5 and 6,
cultivated the suit schedule properties jointly. Every year
defendants No.1, 5 and 6 used to take 1/3rd share in each
of the properties. It is further contended that, defendant
No.6, though was residing at Navalgund, often she used to
visit the properties and stay in 'B' schedule property. It is
further contended that, defendant No.6 also used to visit
Saundatti and used to stay in schedule 'B' property to look
after the landed properties along with defendant No.1.
Therefore, defendant No.1 has got 1/3rd share in the suit
schedule property.
It is further contended by defendant No.6 that, the
plaintiff is not at all entitled to 1/3rd share in the suit
schedule properties. It is further contended that, defendant
No.1 colluding with defendant No.4 has created gift deed
dated 30.03.2010 to deprive the share of defendant No.6.
The plaintiff is the son of elder brother of defendant No.6.
The name of defendant No.6 is appearing in respect of
Sy.No.606/A after the death of her mother. Therefore, it is
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contended that, it is a collusive suit and therefore, the suit
is not maintainable.
Likewise, defendants No.1, 3 and 4 also filed their
separate written statements. According to them, defendant
No.2-Yallavva is not the first wife. However, plaintiff and
Danappa being the sons of defendants No.1 and 2 is
admitted. It is contended that, defendant No.1 had
contacted the marriage with defendant No.2 as he had love
in her and also physical intimacy with her. This illegal
relationship was opposed by the family members.
Defendant No.1 has not married defendant No.2 till date.
However, they continued their intimacy and in the said
relationship a child by name Danappa was born.
It is their contention that, as per the advice of elderly
persons and as per the customs prevailing in the
community, defendant No.1 married Ratnavva. In the said
wedlock, two sons viz., Basavaraj and Naveen, who are
defendants No.3 and 4, and a daughter by name Manjula
are born. However, said Manjula is no more and died before
her marriage. Thus, it is defendants No.3 and 4 who are the
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legitimate children of defendant No.1. Thus, as per the
provisions of Hindu Succession Act, they are entitled to
their legitimate share in the suit schedule properties.
It is further contended that, defendant No.1 is born on
30.05.1944 and defendants No.5 and 6 are twins who were
born on 01.06.1949. The said Doddasankappa was adopted
by Yallavva W/o. Satyappa Somannavar on 18.09.1951.
Since then, defendant No.1 is living as adopted son of
Yallavva. After the demise of Yallavva, her properties came
to be mutated in the name of defendant No.1 as the legal
heir of Yallavva. Therefore, all the defendants stated supra
prayed to dismiss the suit.
Based upon the rival pleadings of the parties, the Trial
Court framed in all six issues and four additional issues.
They read as under:
"ISSUES
1) Whether the plaintiff proves the genealogy
furnished in the plaint ?
2) Whether the plaintiff proves that the suit
schedule properties are ancestral joint family
properties of plaintiff and defendants?
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3) Whether the plaintiff and defendant No.6 prove
that the gift deed dtd. 30-3-2010 executed by
first defendant in favour of fourth defendant is
null and void and not binding on the share of
the plaintiff and defendant No.6?
4) Whether the plaintiff is entitled for 1/3rd share
in all the suit schedule properties?
5) Whether the sixth defendant proves that she is
entitled for 1/3rd share in the suit schedule
properties ?
6) What decree/order?
Additional Issues
1) Whether the D1, 3 & 4 prove that plaintiff is
illegitimate son of first defendant ?
2) Whether D1. 3 & 4 prove that Smt. Ratnavva is
the only legally wedded wife of first defendant?
3) Whether D1, 3 & 4 prove that CTs No.2121,
TMC No. 1091 and CTS 3420/D/12 are the self
acquired properties of defendant No.1 ?
4) Whether the suit is not properly valued for the
purpose of C.F. and Court fee paid is insufficient
?
(Addl. Issue No.4 was treated as preliminary issue)"
Before the learned Trial Court, the plaintiff, in order to
substantiate his case, entered the witness box as P.W.1 and
he also examined two other witnesses in the shape of P.W.2
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and P.W.3 and got marked documents Ex.P.1 to 37 and
closed his evidence.
To rebut, the evidence of plaintiff, defendants No.6, 1
and 4 respectively entered the witness box and examined
themselves as D.Ws.1, 2 and 3 respectively; and also
examined three more witnesses in the shape of D.Ws.4, 5
and 6. The defendants got marked Exs.D.1 to D.50 on their
behalf and closed their evidence.
The learned Trial Court on closure of evidence of both
sides, on hearing the arguments and on perusal of the
records, answered issue Nos.1, 2, 4 and 5 in the affirmative
and issue No.3 and additional issues No.1 to 4 in the
negative and ultimately decreed the suit of the plaintiff
awarding 1/3rd share to the plaintiff, and the counter claim
of defendant No.6 was also decreed granting him 1/6th
share in the suit schedule properties. The gift deed dated
30.03.2010 executed by defendant No.1 came to be set
aside by the Trial Court. Accordingly, a preliminary decree
was ordered to be drawn by the Trial Court.
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5. This judgment and decree of the Trial Court is
now challenged by defendants No.1 and 4 by filing R.F.A.
No.100171/2014, and by defendant No.3 by filing R.F.A.
No.100211/2014. Defendant No.6 has challenged the
judgment and decree of the Trial Court by filing cross-
objections in RFA Crob. No.100002/2015.
6. So far as, defendants No.1 and 4 and so also
defendant No.3 are concerned, they have challenged the
findings of the Trial Court on the ground that, the plaintiff is
not entitled for any share in the suit schedule properties. It
is defendant Nos. 2 and 3 who are entitled for legitimate
share in the suit schedule properties etc. So far as
defendant No.6 is concerned, the very awarding of share to
the extent of 1/6th is challenged by way of cross-objections.
7. The records of the appeal reveal that, during the
pendency of these appeals, defendant No.1 being appellant
No.1 in R.F.A. No.100171/2014 died. As his legal heirs i.e.,
appellant No.2 and respondents No.1 to 4, were already on
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record, the cause title of the appeal memo came to be
amended to that effect.
8. It is argued by Sri. Mrutyunjay Tata Bangi,
learned counsel appearing for the appellants in R.F.A.
No.100171/2014 that, the genealogical tree so stated in the
appeal memo show that one Doddasankappa Shivappa
Somannavar was the propositus who died in the year 1958
and his wife Kashibai also died in the year 1985. During the
lifetime of propositus i.e., Doddasankappa was adopted to
the family of Yallawwa. The said Doddasankappa and his
wife Kashibai have three children by name Ningappa
(defendant No.1), Laxmavva (defendant No.5) and
Siddavva (defendant No.6). Defendants No.5 and 6 are
twins born on 01.06.1949. Ningappa, the son of
Doddasankappa, had a wife by name Ratnavva and she is
the first wife as per the submission of the counsel for the
appellants. He submits before the Court that, Ratnavva is
the first wife of Ningappa and in the said marriage, three
children are born i.e., two sons viz., Basavaraj and Naveen,
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who are arrayed as defendants No.3 and 4 respectively, and
a daughter by name Manjula, who is no more and had died
even before her marriage. He submits that, when
Doddasankappa himself went in adoption to the family of
Yallawwa, at that time, Ningappa, Laxmavva and Siddavva
were already born and therefore, he ceases to be the
member of genetic family and therefore, Ningappa,
Laxmavva and Siddavva would not get any share in the
properties left by Doddasankappa in his adopted family.
Further, he submits that, Ningappa, at the most, would get
a share in the genetic family properties of Doddasankappa;
and likewise, Laxmavva and Siddavva would get a share in
the genetic family properties of Doddasankappa. Further, he
submits that, Ratnavva, being the first wife of Ningappa,
their sons Basavaraj (defendant No.3) and Naveen
(defendant No.4) are entitled for their legitimate shares. It
is his submission that, the appellants disputes the
relationship between Yallavva and Ningappa as the husband
and wife. So also, they dispute the relationship of
Sankappa-plaintiff and his entitlement for a share in the suit
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schedule properties. He admits that Danappa, another son
of Ningappa, has gone in adoption.
9. Now, in this case, we are very much concerned
about the legitimacy of Sankappa as the son of Ningappa
born through Yallavva, and so also whether Basavaraj and
Naveen, defendants No.3 and 4 respectively, are the
children born to Ratnavva, the first wife of Ningappa.
10. Relying upon the documents produced by both
sides, counsel for the appellant Sri. Mrutyunjaya Tata Bangi
submits that, though various documents are produced by
the plaintiff, they will not prove the status of the plaintiff as
the son of Ningappa. Further, he submits before the Court
that, the genealogical tree so mentioned by the appellant in
the appeal memo clearly depicts as to who are all the
children of Ningappa. He submits that, the very awarding of
share to the plaintiff and denying the share to defendants
No.3 and 4 by the Trial Court is illegal. In support of his
submission, he relied upon a Full Bench decision of the High
Court of Bombay in Martand Jiwaji Patil and Ors. Vs.
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Narayan Krishna Gumast Patil and Ors., in First Appeal
No.98 of 1937 decided on 16.02.1939. He submits that
defendants No.3 and 4 are also to be awarded shares in the
suit schedule properties so mentioned in the plaint.
11. As against this submission, Smt. Aradhana
Manvi, learned counsel for defendant No.6 i.e., cross
objector, submits that, there is a wrong calculation of the
shares by the Trial Court while awarding share to defendant
No.6. In fact, defendant No.6 being the daughter of
Doddasankappa is legitimately entitled for 1/3rd share in the
suit schedule properties. The Trial Court has awarded just
1/6th share which, according to her, is a mistake that has
been crept in the preliminary decree. She submits that
when the relationship is admitted, and as defendant No.6 is
born on 01.06.1949 prior to 1956 i.e., before the advent of
the Hindu Succession Act, in view of the judgment Hon'ble
Apex Court in the case of Vineeta Sharma Vs. Rakesh
Sharma and Others1, she is entitled for a equal share in the
(2020)9 SCC 1
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properties left behind by Doddasankappa. So also, she
submits that, defendant No.5 is also entitled to an extent of
equal share in the suit schedule properties. Therefore, she
prays to correct the mistake committed by the Trial Court
by allowing the cross-objections filed by defendant No.6.
12. Rebutting all these submissions, Sri. Shivaraj
S.Ballolli, the learned counsel for the plaintiff submits that,
it is Yallavva who is the first wife of Ningappa; that in the
wedlock of Yallavva and Ningappa, the plaintiff and
Danappa are born; Danappa has gone in adoption. He
submits that, in view of legitimacy of Sankappa as the son
of Yallavva and Ningappa, defendants No.3 and 4 i.e.,
Basavaraj and Naveen cannot claim equal share in the suit
schedule properties. He submits that, Ratnavva is the
second wife and even there is pleading to that effect in the
plaint. He submits that, the Trial Court is right in awarding
share to the plaintiff. He submits that, in view of the
evidence placed on record by the plaintiff as well as the
defendants, the legitimacy of Sankappa as the son of
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Ningappa born from his first wife Yallavva is proved. In
support of his submission, he relied upon the evidence
placed on record by both the parties.
13. We have given our anxious consideration to the
rival contentions of the parties. In view of the rival
submission of both the sides, the following points would
arise for our consideration:
i) Whether the Trial Court has committed illegality
in not awarding legitimate share to the plaintiff
as well as the defendants?
ii) If so, whether the judgment and decree of the
Trial Court requires interference of this Court?
iii) What order?
14. Before adverting to other aspects of the case, let
us discuss the admitted facts between the parties. The
propositus was one Doddasankappa. He died in the year
1958. His wife Kashibai died in the year 1985. During the
lifetime of Doddasankappa and Kashibai, they have three
children i.e., Ningappa (defendant No.1), Laxmavva
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(defendant No.5) and Siddavva (defendant No.6).
Ningappa-defendant No.1 died during the pendency of
these appeals. Ningappa has a wife Yallavva as per the
genealogical tree made available by the parties. In the
wedlock of Ningappa and Yallavva, two sons are born i.e.,
Sankappa (plaintiff) and Danappa. Danappa has gone in
adoption. It is also the case of the appellant that, Ratnavva
is the first wife of Ningappa and in the wedlock of Ningappa
and Ratnavva, three children are born i.e., Basavaraj
(defendant No.3) and Naveen (defendant No.4) and Manjula
who died even before her marriage. Now, the surviving
legal heirs, as per the case of the appellants are Basavaraj
and Naveen born to Ratnavva and Ningappa.
15. It is the case of the plaintiff that he is the son
born to Ningappa and Yallavva. To prove that the marriage
between Ningappa and Yallavva was performed on
04.05.1961. The marriage invitation card is produced by the
plaintiff as per Ex.P.37. While making this document, no
objections were raised by either of the contesting parties.
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Whereas the defendants No.3 and 4 in this case have not
produced any documents to show that, when exactly the
marriage between Ningappa and Ratnavva has taken place.
That means, except the self-serving pleading in the written
statement, there is no acceptable evidence produced by
defendants No.3 and 4. i.e. except the oral evidence to
show that, Basavaraj, Naveen and Manjula are born to
Ratnavva, who is alleged to be the first wife of Ningappa,
there is no acceptable evidence produced by defendants
No.3 and 4. Even on going through the oral evidence, it
shows that, Yallavva is the first wife of Ningappa. In the
wedlock of Yallavva and Ningappa, two sons are born i.e.,
Sankappa and Danappa. The cause title so stated in the
plaint shows that, Basavaraj and Naveen are quite younger
than the plaintiff-Sankappa and Danappa, which is not
disputed by defendants No.3 and 4. This itself pre-supposes
that, Sankappa is born much prior to the birth of
Basavaraja and Naveen in the wedlock of Yallavva and
Ningappa. It goes to establish that, Yallavva is the first wife
of Ningappa. Though it has come in the evidence of
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defendant No.1 that, Ratnavva is the first wife, but in view
of Ex.P.37 and also the evidence shows that, to deprive the
rights of Sankappa, he must have deposed so. But his
evidence cannot be accepted that Ratnavva is the first wife
of Ningappa. Whereas the other evidence probablises that
Yallavva is the first wife of Ningappa. This aspect has been
rightly considered by the Trial Court with regard to the
status of the plaintiff as the son of Yallavva in the marriage
between Yallavva and Ningappa. Though a ground is made
out in the appeal memo, it is not substantiated by
defendants No.2 and 4 by adducing any additional evidence.
So in the absence of any acceptable evidence with regard to
status of Ratnavva as the first wife of Ningappa, the
evidence of the plaintiff has to be accepted. Therefore, it is
held that, Yallavva is the first wife of Ningappa and the
plaintiff is the son of Yallavva and Ningappa.
16. Now, the question that requires to be considered
is with regard to the status of the suit schedule properties.
The plaintiff has described the schedule properties in the
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suit and has also produced various documents with regard
to mutation entries etc. Amongst the documents produced
by the plaintiff i.e., Ex.Ps.1 to P.37, there are properties
extracts and mutation entries etc. On reading of these
mutation entries, they do suggest that, not only the genetic
family properties are included in the schedule to the plaint,
but also the adopted family properties are included in the
schedule to the plaint. That means, Doddasankappa, even
after adoption, cultivated the properties of genetic family as
well as the adopted family. Thus, there is blending of the
properties of genetic family as well as the adopted family.
This fact is not disputed by any of the defendants.
17. It is the case of the plaintiffs that, after the
demise of Doddasankappa, Kashibai succeeded to the suit
schedule properties. The said Kashibai died in the year
1985. That means Ningappa, Laxmavva and Siddavva
succeeded to the properties left by Doddasankappa and
Kashibai. Accordingly, mutation entries have been effected
in the revenue records. It is the pleading and evidence that
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after the demise of Doddasankappa, certain properties were
entered in the name of Laxmavva and Siddavva. On a
reading of said mutation entries and RTC extracts and so
also the pleadings, there was no partition of the family
properties by metes and bounds. Merely just entering the
names of Laxmavva and Siddavva in respect of some of the
properties, in their name would not prove that, they are the
exclusive owners of those properties. It may be termed as
voluntary arrangements and not a partition by metes and
bounds. Therefore, though it is the pleading of defendants
No.5 and 6 that, those properties are standing in their
names, the same would not help them to show that, those
properties are their exclusive properties. As stated supra, it
may be a family arrangement being done by Ningappa so as
to help his sisters. Thus, on overall reading of the
documents produced by the plaintiff do establish that, the
schedule properties are the joint family properties of
plaintiff and defendants 1, 5 and 6.
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18. Defendants also have led evidence and relied
upon various documents marked as per Ex.D1 to Ex.D50.
Ex.D1 to Ex.D11 are the RTC extracts and CTS extracts,
Ex.D12 to Ex.D20 are the mutation entries, likewise Ex.D21
to Ex.D24 are the Khata extracts, Diary extract etc., The
school certificates of Siddavva and Laxmavva are produced
as per Ex.D44 and Ex.D45. Ex.D46 is the birth certificate of
Sankappa.
19. These documents are not disputed by the
plaintiff. The plaintiff challenges the gift deed Ex.D47.
According to plaintiff, to deprive his rights in the suit
schedule properties, defendant No.1 has executed a gift
deed in favour of defendant No.4. As the schedule
properties are the joint family ancestral properties, what
locus-standi the defendant No.1 had to execute the gift
deed is not pleaded or proved by producing cogent
evidence. Though he knew that, the plaintiff is his son and
Yallavva is his first wife, just to deprive their right in the
properties, he might have executed the said gift deed in
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favour of defendant No.4, who is his son born though his
second wife-Ratnavva. But that does not mean that,
defendant No.1 during his lifetime had exclusive right to
execute a gift deed as rightly observed by the Trial Court.
Therefore, as rightly observed by the Trial Court, defendant
No.1 had legal competency to execute the gift deed in
favour of defendant No.4.
20. Now the question arises that, how much share
the plaintiff and defendants are entitled to? As could be
seen from the genealogical tree, evidently Doddasankappa
is no more and Kashibai is also no more, who are ancestors
of the plaintiff and defendants 1, 5 and 6. By applying the
provisions of Hindu Succession Act, if the shares are carved
out in view of Vineeta Sharma's case (stated supra),
these Laxmavva and Siddavva being daughters of
Doddasankappa and Kashibai are entitled to equal share
with that of son. That means, Ningappa would get 1/3rd
share, Laxmavva-Defendant No.5 would get 1/3rd share and
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Siddavva-defendant No.6 would get 1/3rd share in the
schedule properties by metes and bounds.
21. Defendant No.1-Ningappa had a wife by name
Yallavva and son by name Sankappa i.e. plaintiff. So, the
1/3rd share of Ningappa has to be divided in between
himself, first wife-Yallavva and son-Sankappa, which would
be 1/9th each. That means, 1/9th share has to be given to
Ningappa by applying the principles of notional partition and
accordingly, Yallavva would get 1/9th share and Sankappa
would get 1/9th share. The Trial Court is right in not
awarding shares to defendants 3 and 4 since at the time of
passing of decree, defendant No.1-Ningappa was alive. But
he died during the pendency of this appeal.
22. As it is proved by defendants 3 and 4 that, they
are children of Ratnavva, second wife of Ningappa, by
applying the principles laid down in Revanasiddappa and
another v. Mallikarjun and others2, Basavaraj and
(2011) 11 SCC 1
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Naveen, who are born through second wife-Ratnavva are
entitled in the share of their father-Ningappa. Due to death
of defendant No.1-Ningappa, during the pendency of the
appeals by subsequent developments, defendants 3 and 4
are entitled for share in the property of defendant No.1-
Ningappa. Under the Hindu Succession Act, in case of birth,
shares will be decreased and in case of death, shares will be
increased. Since Ningappa died, defendants 3 and 4 being
his children born through his second wife are entitled for
share. That means, in 1/9th share of Ningappa, the children
born through second wife-Ratnavaa i.e. Basavaraj and
Naveen would get share so also Ningappa's first wife-
Yallavva and her son-Sankappa would get share. That
means, 1/9th share of Ningappa has to be divided equally
amongst Yallavva, Sankappa, Basavaraj and Naveen, which
comes to 1/36th share each.
23. In view of above discussions, both the appeals
and cross objection deserve to be allowed in part.
Resultantly we pass the following:
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ORDER
i) Both the appeals in RFA No.100171/2014 and
100211/2014 and Cross-objection in RFA
Crob.No.100002/2015 are allowed in part.
ii) The judgment and decree of the trial Court
passed in O.S.No.45/2011 is hereby modified in
following terms.
iii) Plaintiff is entitled to 1/9th + 1/36th share i.e.
5/36th share in suit schedule properties.
iv) Defendants 3 and 4 are entitled to 1/36th share
each in the suit schedule properties.
v) Defendant No.2-Yallavva is held entitled to 1/9th
+ 1/36th share i.e. 5/36th share in suit schedule
properties.
vi) Defendants 5 and 6 are entitled to 1/3rd share
each in the suit schedule properties.
vii) Based upon the doctrine of equity, at the time of
final decree proceedings, the landed properties in
possession of the respective parties be allotted to
their respective shares to avoid any conflict
between the parties.
viii) There shall be modified preliminary decree in the
above terms.
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ix) In view of the facts and circumstances of the case
no order as to costs.
x) In view of disposal of the appeals and cross-
objection, pending interlocutory applications, if
any, do not survive for consideration and are
disposed of accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
KMS, YAN
