Karnataka High Court
Kasturi Sumitra W/O Ningappa Mugalkhod vs Nimbevva W/O Gireppa Mugalkhod on 6 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RFA No. 173 of 2007
C/W RFA.CROB No. 100016 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH 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. 173 OF 2007 (PAR)
C/W
RFA CROSS OBJ NO. 100016 OF 2023
IN RFA NO.173 OF 2007:
BETWEEN:
1. SHRI. RAMASIDDA CHINNAPPA MUGALKHOD
SINCE DECEASED BY HIS LEGAL HEIRS AS
APPELLANTS NO.1A TO 1D.
1(A). SMT. CHANNAVVA W/O. RAMASIDDA
@ RAMASIDDAPPA MUGALKHOD,
AGE: 56 YEARS, OCC: AGRICULTURE AND
HOUSEHOLD WORK,
R/O. GURLAPUR, TALUKA: GOKAK,
(NOW MUDALAGI TALUKA),
Digitally signed
by SAROJA
HANGARAKI
Location:
DISTRICT: BELAGAVI-591312.
HIGH COURT
SAROJA OF
HANGARAKI KARNATAKA
DHARWAD
BENCH
Date:
2023.12.15
13:29:49
1(B). SMT. GEETA W/O. PRAVEEN MUGABASAV
+0530
AGE: 38 YEARS, OCC: MEDICAL PRACTITIONER,
R/O. HOSUR, TALUKA: SAVADATTI,
DIST: BELAGAVI-591111.
1(C). SMT. BORAMMA W/O. ARUN MUGABASAV
AGE: 36 YEARS, OCC: HOUSEHOLD WORK,
R/O. HOSUR, TALUKA: SAVADATTI,
DIST: BELAGAVI-591111.
1(D). SHRI. GIREPPA S/O. RAMASIDDA
@ RAMASIDDAPPA MUGALKHOD,
AGE: 34 YEARS, OCC: AGRICULTURE
AND PRIVATE SERVICE,
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RFA No. 173 of 2007
C/W RFA.CROB No. 100016 of 2023
R/O. GURLAPUR, TALUKA: GOKAK,
(NOW MUDALAGI TALUKA),
DIST: BELAGAVI-591312.
2. SHRI. BASAPPA @ SANNABASAPPA
CHINNAPPA MUGALKHOD,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O. GURLAPUR, TALUKA: GOKAK,
DIST: BELAGAVI-591312.
3. SHRI. SHIVANINGA CHINNAPPA MUGALKHOD
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O. GOKAK INFRONT OF GOKAK RESORT,
DIST: BELAGAVI-591307.
4. SHRI. PARAPPA CHINNAPA MUGALKHOD
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O. GURLAPUR, TALUKA: GOKAK,
DIST: BELAGAVI-591312.
...APPELLANTS
(BY SRI. SANJAY S. KATAGERI, ADV. FOR A1(A) TO (D))
AND:
1. SMT. NIMBEVVA W/O. GIREPPA MUGALKHOD
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O. KABBUR, TALUKA:CHIKKODI,
DIST: BELAGAVI-591222.
2. KUMARI. PRABHAVATI MUGALKHOD
D/O. GIREPPA MUGALKHOD,
AGE: 37 YEARS, OCC: MBBS,
R/O. KABBUR, TALUKA: CHIKKODI,
DIST: BELAGAVI-591222.
3. SMT. KASTURI @ SUMITRA
W/O. NINGAPPA MUGALKHOD,
AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
R/O. GURLAPUR, TALUKA: MUDALAGI,
DIST: BELAGAVI-591312.
...RESPONDENTS
(BY SRI. SHIVRAJ S. BALLOLI, ADV. FOR R1 AND R2;
SRI. G.B.SHASTRY ADV. FOR R3)
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RFA No. 173 of 2007
C/W RFA.CROB No. 100016 of 2023
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 23.12.2006 PASSED IN
O.S.NO.110/1998 ON THE FILE OF THE ADDITIONAL CIVIL
JUDGE, SENIOR DIVISION, GOKAK SITTING AT RAIBAG. PARTLY
ALLOWING THE SUIT FOR PARTITION.
IN RFA CROB. NO.100016 OF 2023:
BETWEEN:
SMT. KASTURI @ SUMITRA
W/O. NINGAPPA MUGALKHOD,
AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
R/O. GURLAPUR-591312, TALUKA: MUDALAGI,
DIST: BELAGAVI.
...CROSS-OBJECTOR
(BY SRI.G.B.SHASTRY, ADVOCATE)
AND:
1. NIMBEVVA W/O. GIREPPA MUGALKHOD
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O. GURLAPUR-591312, TQ: GOKAK,
NOW TQ: MUDALAGI,
DIST: BELAGAVI.
2. PRABHAVATI W/O. GIREPPA MUGALKHOD
AGE: 53 YEARS, OCC: MBBS,
R/O. GURLAPUR-591312, TQ: GOKAK,
NOW TQ: MUDALAGI, DIST: BELAGAVI.
NOW R/AT: GOKAK-591307,
TQ: GOKAK, DIST: BELAGAVI.
RAMASIDDA S/O. CHINNAPPA MUGALKHOD
SINCE DECEASED BY HIS LRs.,
I.E., RESPONDENT NO.5 TO 6.
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RFA No. 173 of 2007
C/W RFA.CROB No. 100016 of 2023
3. SMT. CHANNAVVA W/O. RAMASIDDA
@ RAMASIDDAPPA MUGALKHOD,
AGE: 56 YEARS, OCC: AGRICULTURE AND
HOUSEHOLD WORK,
R/O. GURLAPUR-591312, TALUKA: GOKAK,
(NOW MUDALAGI),
DISTRICT: BELAGAVI.
4. SMT. GEETA W/O. PRAVEEN MUGABASAV
AGE: 38 YEARS, OCC: MEDICAL PRACTITIONER,
R/O. HOSUR-591111, TALUKA: SAVADATTI,
DIST: BELAGAVI.
5. SMT. BORAMMA W/O. ARUN MUGABASAV
AGE: 36 YEARS, OCC: HOUSEHOLD WORK,
R/O. HOSUR-591111,
TALUKA: SAVADATTI,
DIST: BELAGAVI.
6. GIREPPA S/O. RAMASIDDA
@ RAMASIDDAPPA MUGALKHOD,
AGE: 34 YEARS, OCC: AGRICULTURE
AND PRIVATE SERVICE,
R/O. GURLAPUR-591312, TALUKA: GOKAK,
(NOW MUDALAGI),
DIST: BELAGAVI.
7. BASAPPA @ SANNABASAPPA
S/O. CHINNAPPA MUGALKHOD,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O. GURLAPUR-591312, TALUKA: GOKAK,
(NOW MUDALAGI), DIST: BELAGAVI.
8. SHIVANINGA S/O. CHINNAPPA MUGALKHOD
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O. INFRONT OF GOKAK RESORT,
GOKAK -591307, DIST: BELAGAVI.
9. PARAPPA S/O. CHINNAPA MUGALKHOD
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O. GURLAPUR-591312,
TALUKA: GOKAK,
(NOW MUDALAGI), DIST: BELAGAVI.
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RFA No. 173 of 2007
C/W RFA.CROB No. 100016 of 2023
10. THE MANAGING DIRECTOR
HIRA SUGAR WORKS,
SANKESHWAR-591313,
TAL: HUKKERI, DIST: BELAGAVI.
11. THE MANAGING DIRECTOR
PRABHA SUGAR FACTORY, GOKAK-591307,
DIST: BELAGAVI.
12. THE MANAGING DIRECTOR
SOMAYYA SUGAR WORKS,
SAIDAPUR-587312, DIST: BAGALKOTE.
...RESPONDENTS
(BY SRI. SHIVRAJ S. BALLOLI, ADV. FOR R1 AND R2;
SRI. SANJAY S.KATAGERI, ADV. FOR R3 TO R9;
R10 TO R12-NOTICE DISPENSED WITH)
THIS RFA CROB. IN RFA NO.173/2007 IS FILED UNDER
ORDER 41 RULE 22 OF CPC 1908, PRAYING TO, MODIFY THE
JUDGMENT AND DECREE DATED 23.12.2006 PASSED IN
O.S.NO.110/1998 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
SENIOR DIVISION GOKAK, AT GOKAK, SITTING AT RAIBAG BY
AWARDING 1/28TH SHARE + 1/14TH SHARE IN ADDITIONAL TO
1/7TH SHARE ALREADY GRANTED BY THE TRIAL COURT IN ALL
THE SUIT SCHEDULE PROPERTIES, IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS RFA AND CROSS OBJECTION COMING ON FOR FINAL
HEARING, THIS DAY, RAMACHANDRA D. HUDDAR, J.,
DELIVERED THE FOLLOWING:
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RFA No. 173 of 2007
C/W RFA.CROB No. 100016 of 2023
JUDGMENT
Appellants-defendants No.1 to 4 in RFA No.173/2007
have filed this appeal being aggrieved by the judgment
and decree so passed in O.S.No.110/1998 dated
23.12.2006 on the file of the Additional Senior Civil Judge,
Gokak. Whereas RFA Crob.No.100016/2023 is filed by the
cross-objector by name Kasturi @ Sumitra W/o Ningappa
Mugalkhod being is the legal heir of defendant No.6.
2. For the purpose of convenience, the parties to
these cases are referred to as per their ranking before the
trial Court.
3. The short point involved in both these cases is
with regard to carving of shares in between the plaintiffs
and defendants.
4. The plaintiffs filed a suit against the defendants
seeking the relief of partition and separate possession of
suit schedule properties by metes and bounds. The suit
schedule properties are situated at Mudalagi village, Gokak
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taluk and Kankanwadi village, Raibag taluk more so
described in the schedule to the plaint (hereinafter
referred to as suit properties for brevity and convenience).
5. According to the plaintiffs, Nimbevva is the
legally wedded wife of Gireppa and second plaintiff
Smt.Prabhavati is the daughter of deceased Gireppa.
Plaintiffs and defendants constitute joint family. By virtue
of the said status, the plaintiffs have claimed partition and
separate possession of the suit properties by metes and
bounds.
6. These assertions so made by the plaintiffs as
suit schedule properties are joint family properties and
their relationship so asserted with Gireppa is flatly denied
by the defendants by filing their written statement. Based
upon that, the trial Court framed only three issues. They
read as under:
"1. Whether the plaintiffs prove that the first plaintiff Smt.
Nimbevva is legally wedded wife and the second plaintiff
Kumari. Prabhavati is the daughter of the deceased
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Gireppa and whether they constitute joint family with the
defendants No.1 to 6?
2. Whether the plaintiffs are entitled to the partition of
their share in the suit properties.? If so, to What Share.?
3. What decree or order.?
7. Before the trial Court, to substantiate the case
of the plaintiffs, they examined in all four witnesses as
PW.1 to PW.4 and got marked Ex.P.1 to P.22 and closed
the plaintiffs' evidence. On behalf of defendants, three
witnesses were examined as DW.1 to DW.3 and got
marked documents as Ex.D.1 to D.7 and closed the
defendants' evidence.
8. On hearing the arguments and on perusal of the
records, the learned trial Court answered issue No.1 partly
in affirmative, issue No.2 in affirmative awarding 1/7th
share to plaintiff No.2 in the suit properties by metes and
bounds. This is how, the appellants-defendants No.1 to 4
are before this Court by filing appeal in RFA No.173/2007.
The cross-objector by name Kasturi @ Sumitra W/o
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Ningappa Mugalkhod being the legal heir of defendant
No.6 has filed cross-objection in RFA Cross Objection
No.100016/2023.
9. In these cases, most of the factual features are
admitted by both the sides. However, the cross-objector
has denied the very status of Nimbevva as the second wife
of Gireppa. So also, disputes the very status of plaintiff
No.2 as daughter of Gireppa. The learned trial Court while
answering the relevant issue with regard to the
relationship between the plaintiffs and defendants has
come to the conclusion that plaintiff No.2 is the daughter
of Gireppa born in the wedlock between Gireppa and
Nimbevva.
10. For the purpose of convenience and for the
purpose of disposal of these appeals, it is just and proper
to refer to the genealogy so mentioned in page No.10 of
the memorandum of cross-objections. As per this
genealogical tree, one Chinnappa is the propositus of the
family. He died on 07.10.1997. He had two wives by name
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C/W RFA.CROB No. 100016 of 2023
Paravva and Channabasavva. First wife Paravva died on
20.02.1951. Channabasavva second wife being arrayed as
defendant No.5 in the original suit died on 16.03.2001.
The first wife Paravva had two children by name Gireppa
and Siddalingavva. Gireppa died on 05.08.1987 as per the
information furnished. Gireppa married one Gangavva
during his lifetime and this Gangavva also died on
25.11.1997. First wife of Gireppa died issueless.
Siddalingavva, the sister of Gireppa is arrayed as
defendant No.6 in the suit. She is also no more. She has a
daughter by name Kasturi @ Sumitra W/o Ningappa
Mugalkhod who is the cross-objector.
11. It is the case of the plaintiffs that, Gireppa
married Nimbevva the second wife during the subsistence
of first marriage with Gangavva. In the wedlock between
Gireppa and Nimbevva, Prabhavati is born who is plaintiff
No.2.
12. Channabasavva the second wife of Chinnappa
(propositus) had four children by name Ramasidda,
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C/W RFA.CROB No. 100016 of 2023
Basappa, Shivaninga and Parappa who are arrayed as
defendants No.1 to 4 in the suit. Ramasidda son of
Channabasavva is no more. He has a wife by name
Channava. In the wedlock of Ramasidda and Channava,
there were three children who are Geeta, Boramma and
Gireppa. So whatever the share Ramasidda has, that will
be allotted in favour of Channava, Geeta, Boramma and
Gireppa as they are the legal heirs of Ramasidda.
13. This genealogical tree so stated is not disputed
by both the side.
14. It is argued by the counsel for the appellants,
Sri.G.B.Shastry that, in these cases, the short point
involved is with regard to carving of the shares and
allotment of the same to the plaintiffs. He submits that,
the very calculation of the shares by the trial Court
awarding 1/7th share in favour of plaintiff No.2 is
erroneous and requires modification and to that extent the
judgment of the trial Court requires interference by this
Court.
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C/W RFA.CROB No. 100016 of 2023
15. Learned counsel for the cross-objector,
Sri.Sanjay S Katageri submits that with regard to movable
properties, plaintiff No.2 is not entitled for any share in the
same. He submits that though the mother of this cross-
objector was party to the suit, the appellants in the
present appeal have not made her as a party. Therefore,
she was compelled to file the cross-objections to the
appeal so filed by the appellants.
16. He further submits that, the cross-objector
disputes the very status of Nimbevva as the second wife of
Gireppa. Therefore the status of daughter Prabhavati is
also disputed seriously by this cross-objector.
17. However, while giving the findings the learned
trial Court relied upon the documents produced by the
plaintiffs such as marriage document, birth certificate of
plaintiff No.2, study certificate issued by the school,
national talent search certificate, marks statement, SSLC
board's admission ticket, etc., wherein the name of
Gireppa is shown as father of this Prabhavati. While
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marking these documents, either this cross-objector or
any other defendants have raised any objections.
Therefore, the learned trial Court has given a definite
finding that, this Prabhavati is born to Nimbevva in the
wedlock between Gireppa and Nimbevva. These
documents so produced by the plaintiffs have not been
challenged by the cross-objector or by the other
appellants.
18. Learned counsel for the plaintiffs submits that,
in view of the documents produced by the plaintiffs before
the trial Court, as the status of Prabhavati as a daughter
of Nimbevva and Gireppa is proved, this finding cannot be
interfered with by this Court.
19. In view of the production of relevant admissible
documents by the plaintiffs before the trial Court which are
marked in evidence, they have got evidentiary value and
unless there is rebuttal evidence produced by the
appellants or the cross-objector, they cannot object with
regard to the status of this Prabhavati as the daughter of
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C/W RFA.CROB No. 100016 of 2023
Gireppa and Nimbevva. Therefore, the argument of the
counsel for the cross-objector cannot be accepted and has
to be discarded.
20. As the argument of the counsel for the cross-
objector is not accepted by this Court, then the question
remains that how much plaintiff No.2 and other
defendants are entitled for their share in the suit schedule
properties by metes and bounds.
21. As per the genealogical tree, when Chinnappa
original propositus died on 07.10.1997, succession
opened. By applying the principles of notional partition,
there would be seven shares in between Chinnapa,
Paravva, Channabasavva, Ramasidda, Basappa,
Shivaninga and Parappa. In view of the genealogical tree,
Chinnapa being the propositus of the family, he has two
wives, one Paravva and Channabasavva. Paravva
predeceased Chinnapa and Channabasavva died in the
year 2001.
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C/W RFA.CROB No. 100016 of 2023
22. On calculation of shares in between the children
of Paravva and children of Channabasavva including
Channabasavva, there would be 1/7th share each. That
means, Gireppa would get 1/7th share in the properties left
behind Chinnappa, the propositus.
23. As we are very much concerned about the
shares in between the plaintiffs and defendants now, as
Gireppa was having 1/7th share and as his wife is no more
and died in the year 1997, the succession opened to his
wife immediately after his demise in the year 1987. So, his
wife would get ½ share and Gireppa would retain ½ share
by virtue of notional partition.
24. Gangavva, first wife of Gireppa died without
any issues. This Gireppa's ½ share again has to be divided
among Gangavva, the first wife and plaintiff No.2 i.e.
daughter of Nimbevva, the second wife of Gireppa.
25. This Gireppa's 1/7th share has to be divided in
between Gangavva and Prabhavati. That means, 1/28th
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and 1/28th in addition to 1/14th share i.e. Gangavva would
get 1/28th and Prabhavati would get 1/28th share.
26. Likewise, Siddalingavva the sister of Gireppa
would get 1/7th share. Ramasidda, Basappa, Shivaninga
and Parappa would each get 1/7th share. Siddalingavva is
the surviving legal heir of Paravva and sister of Gireppa.
As Gangava died issueless, by virtue of Section 15(b) of
Hindu Succession Act, whatever the properties held by
Gangavva would devolve upon heirs of her husband.
Siddalingavva is the sister of Gireppa and heir of Paravva.
That means Siddalingavva would get 1/7th + 1/14th +
1/28th share in the suit properties by metes and bounds
(total share comes to 1/4th in the suit schedule
properties). The said Siddalingavva is also no more and
the cross-objector is the legal heir of Siddalingavva.
Therefore, this property held by Siddalingavva would
devolve upon the cross-objector.
27. Plaintiff No.2 is held entitled for 1/28th share in
the suit properties by metes and bounds.
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28. Defendants No.1 to 4 each are entitled for 1/7th
share in the suit properties by metes and bounds.
29. The cross-objector is entitled for 1/4th share in
the suit properties by metes and bounds out of the share
of Gireppa.
30. Resultantly, we pass the following:
ORDER
The appeal in RFA No.173/2007 is dismissed.
The cross-objection in RFA Crob.No.100016/2023 is
allowed in part.
Consequently, plaintiff No.2 is held entitled for 1/28th
share in the suit schedule properties by metes and
bounds.
Defendants No.1 to 4 each are held entitled for 1/7th
share in the suit schedule properties by metes and bounds
and the cross-objector is held entitled for in all 1/4th share
in the suit schedule properties by metes and bounds.
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There shall be modification of shares in the above
terms.
Registry to draw preliminary decree in the above
terms.
Sd/-
JUDGE
Sd/-
JUDGE
SH
