Karnataka High Court
Smt. Hanmawwa @ Hanamantawwa W/O ... vs Shri. Hanmanth S/O Gangappa ... on 11 July, 2023
Bench: Anil B Katti
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RSA No. 5878 of 2010
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
RSA NO. 5878 OF 2010
BETWEEN:
1. SMT. HANAMAWWA @ HANAMANTAWWA
W/O TAMMANNA WADDAR,
1A) SMT. GIDDAWWA W/O KALLAPPA BOTEKAR,
AGE: ABOUT 52 YEARS, OCC: AGRICULTURE and
HOUSEHOLD WORK,
R/O: RAYAPUR GALLI, NANDGAD, TQ. KHANAPUR,
DIST:BELGAUM-590002.
1B) SMT CHINNAWWA W/O HANMANTH DANDGAL,
Digitally AGE: ABOUT 49 YEARS, OCC: AGRICULTURE and
signed by
POOJA POOJA HOUSEHOLD WORK,
DEELIP
DEELIP SAVANUR R/O: BEKWAD, TQ. KHANAPUR,
SAVANUR Date:
2023.07.13
11:18:41 -0700
DIST: BELGAUM-590002.
1C) SMT. GANGAWWA W/O: BOJEPPA MANJALKAR,
AGE: ABOUT 46 YEARS, OCC: AGRICULTURE and
HOUSEHOLD WORK,
R/O: PEERANWADI, TAL & DIST: BELGAUM-590002.
1D) SMT. SONAKKA W/O YALLAPPA MANJALKAR,
AGE: ABOUT 42 YEARS, OCC: AGRICULTURE and
HOUSEHOLD WORK,
R/O: WADDAR CHAVANI, KHASBAG, BELGAU-M590002.
(DEAD BY LRS)
1(D)(1)YALLAPPA S/O CHAVADAPPA MANJALKAR
AGE: 50 YEARS, OCC: AGRIL.
R/O: 502, WADDAR CHAVANI, KHASBAG,
BELAGAVI, TQ & DT-BELAGAVI.
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RSA No. 5878 of 2010
1(D)(2) SMT. PARAVATI W/O MARUTI WADDAR
AGE: 29 YEARS, OCC: HOUSE HOLD
R/O. 502, WADDAR CHAVANI, KHASBAG,
BELAGAVI.
1(D)(3) PUSHPA S/O YALLAPPA MANJALKAR
AGE: 25 YEARS, OCC: HOUSE HOLD
R/O: 502, WADDAR CHAVANI, KHASBAG,
BELAGAVI.
1(D)(4) MANJUNATH S/O YALLAPPA MANJALKAR
AGE: 22 YEARS, OCC: COOLIE
R/O: 502 WADDAR CHAVANI, KHASBAG,
BELAGAVI.
1(D)(5) SMT. LALITA W/O YALLAPPA MANJALKAR
AGE: 20 YEARS, OCC: HOUSE HOLD
R/O: 502, WADDAR CHAVANI, KHASBAG,
BELAGAVI.
1(D)(6) PARASHURAM S/O YALLAPPA MANJALKAR
AGE: 18 YEARS, OCC: COOLIE,
R/O: 502, WADDAR CHAVANI, KHASBAG,
BELAGAVI.
...APPELLANTS
(BY SHRI VISHWANATH P. ALLANAVAR FOR
DINESH M. KULKARNI, ADVOCATE)
AND:
1. SHRI. HANMANTH S/O GANGAPPA WADDAR,
AGE: 74 YEARS, OCC: NIL, R/O RAYAPUR GALLI,
TAL. KHANAPUR, DIST. BELGAUM-590002.
(DEAD BY LRS)
1(A) LAXMAN S/O HANAMANTH WADDAR
AGE: 45 YEARS, OCC: BUSINESS
R/O: RAYAPUR GALLI, NANDAGAD VILLAGE,
TQ: KHANAPUR, DIST: BELAGAVI
1(B) SHRIKANTH S/O HANAMANTH WADDAR
AGE: 38 YEARS, OCC: BUSINESS
R/O: RAYAPUR GALLI, NANDAGAD VILLAGE,
TQ: KHANAPUR, DIST: BELAGAVI.
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RSA No. 5878 of 2010
1(C) SMT. BADAWWA W/O DURGAPPA DANGAL
AGE: 60 YEARS, OCC: HOUSE HOLD,
R/O: KHASBAG, BELAGAVI, DIST: BELAGAVI.
2. SHRI. MUKKARI S/O GANGAPPA WADDAR,
AGE: 62 YEARS, OCC: NIL,
R/O: BAJANTRI GALLI, NANDGAD,
TAL. KHANAPUR, DIST. BELGAUM-590002.
(DEAD BY LRS)
2(A) SMT. HUWAKKA W/O MUKKARI WADDAR
AGE: 55 YEARS, OCC: HOUSE HOLD
R/O: BHAJANTRI GALLI, NANDAGAD VILLAGE,
TQ: KHANAPUR, DIST: BELAGAVI.
2(B) CHANDRU S/O MUKKARI WADDAR
AGE: 35 YEARS, OCC: BUSINESS
R/O: BHAJANTRI GALLI, NANDAGAD VILLAGE,
TQ: KHANAPUR, DIST: BELAGAVI.
2(C) SHANKAR S/O MUKKARI DANGAL
AGE: 32 YEARS, OCC: BUSINESS
R/O: BHAJANTRI GALLI, NANDAGAD VILLAGE,
TQ: KHANAPUR, DIST: BELAGAVI.
2(D) RAVI S/O MUKKARI DANAGAL
AGE: 30 YEARS, OCC: BUSINESS
R/O: BHAJANTRI GALLI, NANDAGAD VILLAGE,
TQ: KHANAPUR, DIST: BELAGAVI.
2(E) SMT. SUNITA W/O DASAPPA DANAGAL
AGE: 28 YEARS, OCC: HOUSE HOLD
R/O: WADDAR CHAVANI, VADAGOAN
BELAGAVI, DIST: BELAGAVI.
...RESPONDENTS
(BY SHRI SOURABHA HEGDE FOR SHREEVATSA S. HEGDE,
ADVS. FOR R1(A) TO R1(C) AND R2(A) TO (E)
***
THIS RSA IS FILED U/S 100 OF CR.P.C. SEEKING TO
SET-ASIDE THE JUDGMENT AND DECREE PASSED BY THE VI
ADDL. DISTRICT JUDGE, BELGAUM IN REGULAR APPEAL NO
108/2010 DATE 09/09/2010 AND CONFIRMING THE JUDGMENT
AND THE DECREE PASSED BY THE CIVIL JUDGE SENIOR
DIVISION, KHANAPUR IN OS.NO.181/2008 (OLD NO 156/2006)
DATED 12/01/2010.
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RSA No. 5878 of 2010
THIS RSA COMING ON FOR FINAL HEARING AND THE
SAME HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON 24.03.2023, THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:
JUDGMENT
Appellant/plaintiff feeling aggrieved by judgment and
decree on the file of VI Additional District Judge, Belgaum,
in R.A.No.108/2010 dated 09.09.2010, preferred this
appeal.
2. Parties to the appeal are referred with their
ranks as assigned in the trial Court for the sake of
convenience.
3. The factual matrix leading to the case of
plaintiff can be stated in nutshell to the effect that the
propositus of the family Sri.Gangappa S/o Hanamanth
Waddar, was having three wives viz Yallawwa, Bhimawwa
and Gourawwa. The first wife-Yallawwa died living behind
her son Tammanna and he died living behind his wife
Hanamawwa. The second wife-Bhimawwa died living
behind Hanumanth-defendant No.1 and Chawadawwa.
Third wife Gourawwa died living behind Mukkar, Babu,
Tammanna, Shivaram, Malpuri and Gangawwa. Deceased
RSA No. 5878 of 2010
Sri.Gangappa S/o Hanamanth Waddar, is propositus of
the family owning suit schedule A and B properties. On his
death his three wives succeeded to the schedule A and B
properties and each of them got 1/3rd share in the suit
schedule properties. There was no partition between all
three wives of deceased Sri.Gangappa S/o Hanamanth
Waddar, at any point of time. The defendants tried to
alienate the suit property and refused to give the
legitimate share of plaintiff. Therefore, plaintiff was
constrained to file the suit on hand for the relief claimed in
the suit.
4. In response suit summons, defendant Nos.1
and 2 appeared through counsel and filed written
statement contending that plaintiff is not at all concerned
in any way with properties left by deceased Sri.Gangappa
Hanamanth Wadder. The father of defendant Nos.1 and 2
absolutely had no connection with Smt.Yallawwa,
Tammanna or the present plaintiff. Therefore, there is no
question of plaintiff seeking her right of share in suit
schedule properties. The genology appended to the plaint
is concocted. The deceased Sri.Gangappa is father of
RSA No. 5878 of 2010
defendant Nos.1 and 2 was having only two wives
Bhimawwa and Gouraww. On his death they have
succeeded to the suit properties. The suit properties left
behind by Sri.Ganagappa Hanamanth Waddar, was subject
matter of O.S.No.01/1978 and preliminary decree has
already been drawn. Defendant Nos.1 and 2 are in actual
possession of the suit schedule properties. Therefore,
prayed for dismissal of suit.
5. The trial Court has framed necessary issues.
Plaintiff to prove his case relied on the evidence of P.W.1
and documents Exs.P.1 to 26. Defendants relied on the
evidence of D.W.1 and documents Exs.D.1 to 6. Trial Court
after appreciation of evidence on record, decreed the suit
of the plaintiff holding that plaintiff is entitled for 1/3rd
share in the suit schedule properties and accordingly,
directed to draw preliminary decree.
6. The defendants challenged the said judgment
and decree before the first appellate Court on the file of VI
Additional District Judge, Belagaum in R.A.No.108/2010.
The first appellate Court after re-appreciation of evidence
RSA No. 5878 of 2010
on record has allowed the appeal and dismissed the suit of
the plaintiff.
7. Appellant/plaintiffs who are the legal heirs of
deceased Hanamawwa challenged the divergent finding
recorded by the first appellate Court contending that first
appellate Court has misconstrued the name of husband of
original plaintiff Hanamawwa i.e. Tammanna through the
first wife Smt.Yallawwa is different person, since
Tammanna referred by first appellate Court is the son of
third wife Gourawwa. The first appellate Court also
committed serous error in holding that the suit is bad for
non-joinder of necessary parties. The defendant No.1
represent the branch of Bhimawwa and defendant No.2
represent the branch of Gourawwa. Otherwise also the
first appellate Court should not have dismissed the suit of
plaintiff for non-joinder of necessary parties. The first
appellate Court would have directed the plaintiff to
implead other heirs representing the branch of Bhimawwa
and Gourawwa. The first appellate Court has committed
serous error in holding that Tammanna son of
Sri.Gangappa Hanumanth Waddar was party to
RSA No. 5878 of 2010
O.S.No.01/1978, but in fact he is the son third wife
Gourawwa. The fist appellate Court lost sight of Ex.P.1
recorded at undisputed point of time that Tammanna
husband of original plaintiff Hanamawwa died in the year
1963 and how he could be party to O.S.No.01/1978. The
first appellate Court has failed to notice the collusive
decree obtained in O.S.No.01/1978 without the knowledge
of Hanamawwa or any other heirs. Therefore, judgment
and decree in O.S.No.01/1978 is not binding on plaintiff-
Hanamawwa nor to her heirs. Therefore, prayed for
allowing the appeal and to set-aside the judgment and
decree of the first appellate Court. Consequently, to
restore the judgment and decree of the trial Court.
8. In response to notice of appeal, the
respondents have appeared through counsel.
9. This Court by order dated 15.04.2014 has
framed the following substantial question of law:
"Whether the first appellate Court is justified in
allowing the appeal by dismissed the suit filed
for the relief of partition by ignoring material
evidence placed on record, more particularly,
RSA No. 5878 of 2010
relying upon the earlier judgment in which
plaintiff was not a party and thus judgment of
the first appellate Court has become perverse
and illegal?."
10. Heard the arguments both sides.
11. On careful perusal of oral and documentary
evidence placed on record by both the parties to the suit,
it would go to show that the defendants do not dispute the
propositus of the family Sri.Gangappa Hanamanth Waddar,
died living behind Bhimawwa and Gourawwa. Defendant
No.1 represent the branch of Bhimawwa and defendant
No.2 represent the branch of Gourawwa. Suit properties
belongs to propositus of family Sri.Gangappa Hanamanth
Waddar, and on his death his wives Bhimawwa and
Gourawwa succeeded to the properties left behind by
deceased Sri.Gangappa Hanamanth Waddar. The dispute
is with respect to Smt.Yallawwa being first wife of
propositus Sri.Gangappa Hanamanth Waddar, they had
son by name Tammanna, who died living behind his wife
Hanamawwa as claimed by plaintiff.
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RSA No. 5878 of 2010
12. The Courts below concurrently held by relying
on the death extract Ex.P.1 to show that Tammanna son
of Sri.Gangappa Hanamanth Waddar, died on 02.08.1963.
Documents at Ex.P.2-old age pension of Hanamawwa wife
of Tammanna Waddar issued on 31.12.1975. Voter ID-
Ex.P.3 issued on 01.01.2002 describing Hanamawwa as
the wife of Tammanna. Ex.P.4-ration card standing in the
name of Hanamawwa Tammanna Waddar. Ex.P.5-death
extract of Hanamawwa, at undisputed point of time,
recorded the finding that plaintiffs are the legal heirs of
deceased Hanamawwa and she is wife of Tammanna. The
said Tammanna was only son of Sri.Gangappa Hanamanth
Waddar, from the first wife-Yallawwa. The trial Court has
rightly relied the judgment of this Court in MUNIGA @
ABBAIAH AND ANOTHER VS. MUNIRAJA AND
OTHERS, and ILR 1999 (2) KAR.L. J 253,
M.B.GANGADHARAPPA VS. BOMMAGONDAPPA,
wherein it has been observed and held that in terms of
section 50 and 112 of Indian Evidence Act, the dispute
with reference to paternity, the party disputing has to
discharge the burden. In the present case, the defendants
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RSA No. 5878 of 2010
are disputing the relationship of Yallawwa with deceased
Sri.Gangappa. The first appellate Court though has held
that by virtue of above referred documents, the legal heirs
of Hanamawwa established that their father of Tammanna
is the son of Sri.Gangappa Hanamanth Waddar, from the
first wife-Yallawwa, but differs on the burden of proof and
held that initial burden is on plaintiffs to prove the status
of Tammanna when it is denied by defedants. However,
concurrent finding of both the Courts below holding that
Tammanna is the son of Sri.Gangappa Hanamanth
Waddar, through first wife-Yallawwa and original plaintiff-
Hanamawwa is the wife of Tammanna has not been
challenged by the defendants and same has attained
finality.
13. The first appellate Court while dealing with point
No.2 formulated by it held that the trial Court without
considering evidence and earlier litigation between parties,
further class one heirs and other class one heirs of
deceased Sri.Gangappa Hanamanth Waddar, i.e
Chawadawwa, Babu, Tammanna, Shivaram, Malapuri have
not been impleaded as party to the suit. The Husband of
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RSA No. 5878 of 2010
Hanamawwa i.e.Tammanna was party to O.S.No.01/1978,
he cannot be re-open the partition. Therefore, second suit
for partition is not maintainable. On these findings, the
first appellate Court has reversed the judgment and
decree of the trial Court.
14. The first appellate Court has reversed the
finding of trial Court on issue No.5 and held that the suit of
plaintiffs is bad for non-joinder of necessary parties, since
all the class one heirs representing the branch of
Gourawwa are not made as party to the suit. Trial Court
relied on the judgment of this Court in BALGOUDEA AND
ALAGOUDA PATIL AND OTHERS VS. BABASAHEB
RAMAGOUDA PATIL reported in ILR 1999 KARNATAKA
PAGE NO.831 and Division bench judgment of this Court
in SUBBANNA Y.K. VS. KAMAIAH AND OTHERS,
wherein it has been observed and held that:
"In a suit for partition of the properties of
Hindu joint family necessary parties to the suit
are a) heads of all branches B) females who
are entitled to share of partition C) purchaser
of portion of the plaintiff share in the case
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RSA No. 5878 of 2010
wherein the plaintiff himself is a coparcener d)
if the plaintiff himself is the purchaser of
interest in Mithakshara coparcenery properties
has taken place as per Section 6 of Hindu
Succession Act, all those persons on whom the
interest the property has devolved. In case
where the devolution of interest in the
property of a female Hindu has taken place in
accordance with Section 8 of Hindu succession
Act, all those heirs on whom the interest in the
property has devolved upon."
In view of the principles enunciated in these decisions the
findings of the first appellate Court that the suit is bad for
non-joinder of necessary parties for not impleading other
class one heirs representing the branch of Gourawwa
cannot be legally sustained and 1/3rd share represented
by the branch of Gourawwa is represented by defendant
No.2 and other legal heirs of Gourawwa will be having
their right by share only 1/3rd share of Gourawwa.
15. Learned counsel for the appellants relied on the
Division Bench judgment of this Court in SMT
SULOCHANA MANVI VS CHITRIKI SHIVAYOGAPPA
S/O LATE THOTAPPA AND ANOTHER to substantiate
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RSA No. 5878 of 2010
his contention that suit for partition cannot be dismissed
for non-joinder of necessary parties and they can be
ordered to be impleaded as party in the final decree
proceedings.
16. The first appellate Court has recorded finding
that the judgment and decree in O.S.01/1978-Ex.D.1 is
binding on Tammanna, since he was party to the said suit
and reversed the finding of trial Court on issue No.4. It
appears that first appellate Court has misconstrued the
similarity of names of "Tammanna" the husband of
Hanamawwa as party to the suit in O.S.No.01/1978. In
fact the said Tammanna is the son of Gourawwa the third
wife of deceased Sri.Gangappa Hanamanth Waddar. In
this context, it is useful to refer undisputed document
Ex.P.1-death extract of Tammanna, which would goes to
show that Tammanna husband of Hanamawwa died on
02.08.1963, if the husband of Hanamawwa i.e. Tammanna
was to be the party in O.S.No.01/1978, how he can file
the suit as plaintiff No.2 in O.S.No.10/1978 in view of his
death on 02.08.1963 as per Ex.P.1. In fact the said
plaintiff No.2 Tammanna is representing the branch of
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RSA No. 5878 of 2010
Gourawwa, who is admittedly son of Sri.Gangappa
Hanamanth Waddar, third wife of Gourawwa. Therefore,
the findings of the first appellate Court that the husband of
original plaintiff-Hanamawwa was party to O.S.No.01/1978
as plaintiff No.2 is due to confusing the similarity of name
Tammanna and same cannot be legally sustained.
Therefore, it is evident that the husband of Hanamawwa
i.e. Tammanna was not party to O.S.No.01/1978 and
hence, the same is not binding on Hanamawwa and other
legal heirs. Trial Court in this regard has rightly relied on
the judgment of this Court in NAGARAJA SHETTY VS
KRISHNA reported in ILR 1996 KAR 1156, and contrary
finding recorded by first appellate Court cannot be legally
sustained. Therefore, in view of the reasons recorded as
above, the finding recorded by first appellate Court on
point No.2 formulated by it cannot be legally sustained.
Consequently, the substantial question of law answered in
negative and proceed to pass the following:
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RSA No. 5878 of 2010
ORDER
Appeal filed by the appellant/plaintiff is hereby
allowed.
Judgment and decree of the first appellate Court on
the file of VI Additional District Judge, Belagaum, in
R.A.No.108/2010 dated 09.09.2010 is set-aside.
Judgment and decree passed by the trial Court in
O.S.No.181/2008 (old No.156/2006) on the file Civil
Judge (Senior division), Khanapur, dated 12.01.2010 is
ordered to be restored.
The registry is directed to transmit the records with
the copy of this judgment to trial Court.
(Sd/-)
JUDGE
AC
