Karnataka High Court
Smt. Anita W/O Ashoksa Khode vs Shri. Tippansa S/O Laxmansa ... on 4 October, 2023
Bench: Anant Ramanath Byarhj
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NC: 2023:KHC-D:11682
RFA No. 100019 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 100019 OF 2016 (PAR-)
BETWEEN:
1. SMT. ANITA W/O ASHOKSA KHODE
AGE ABOUT 53 YEARS, OCC: HOUSEHOLD WORK,
R/O: BEHIND TATA POWER HOUSE,
MARWE ROAD, MALAD MALANI,
MUMBAI-400056.
2. SMT. PREMABAI W/O GANGADHARSA PAWAR
AGE ABOUT 49 YEARS, OCC: HOUSEHOLD WORK,
R/O: HESARUR BUILDING,
GANESH COLONY, 6TH CROSS,
NEKAR NAGAR, OLD-HUBBALLI,
HUBBALLI-580025.
3. SMT. LAXMIBAI W/O NAGENDRASA KATWE
AGE ABOUT 45 YEARS, OCC: HOUSEHOLD WORK,
Digitally
signed by
VIJAYALAXMI
R/O: SADASHIV NAGAR,
VIJAYALAXMI M BHAT
M BHAT Date:
2023.10.05
TIPPUNAGAR, OLD-HUBBALLI,
10:47:19
+0530 HUBBALLI-580025.
4. SMT. UMABAI W/O MOTILALSA KABADE
AGE ABOUT 43 YEARS,OCC: HOUSEHOLD WORK,
R/O: CHANNAPETH, AVARADI ONI,
OLD-HUBBALLI, HUBBALLI-580025.
5. SMT. KOUSHALYA W/O SHANKARSA KHODE
AGE ABOUT 39 YEARS,
OCC: HOUSEHOLD WORK,
R/O: OPPOSITE TO GOSAVI HALL,
VEERAPUR ONI, HUBBALLI-580025.
...APPELLANTS
(BY SRI. VISHWANATH BICHHAGATTI, ADVOCATE FOR
SRI. M.R.MULLA)
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NC: 2023:KHC-D:11682
RFA No. 100019 of 2016
AND:
1. SHRI. TIPPANSA S/O LAXMANSA KATIGAR
AGE ABOUT 41 YEARS, OCC: TAILORING,
R/O: SADASHIV NAGAR BADAVANE,
MISKIN CHAL, TIPPUNAGAR,
OLD-HUBBALLI, HUBBALLI-580025.
2. SHRI. RAJUSA S/O HULAGANASA KATIGAR
DECEASED BY HIS LEGAL HEIRS,
2A. SHRI. SACHIN S/O RAJUSA KATIGAR,
AGE ABOUT 26 YEARS, OCC: PRIVATE JOB,
R/O: KOLIPETE, MARATHA GALLI,
HUBBALLI-580025.
2B. SHRI. SHUBHAM S/O RAJUSA KATIGAR
AGE ABOUT 22 YEARS, OCC: STUDENT,
R/O: KOLIPETE, MARATHA GALLI,
HUBBALLI-580025.
4. SHRI. GANAPATI S/O HULAGANSA KATIGAR
AGE ABOUT 47 YEARS, OCC: PRIVATE JOB,
R/O: KOLIPETE, MARATHA GALLI,
HUBBALLI-580025.
...RESPONDENTS
(R1- TIPPANSA LAXMANA KATIGAR;
R2(A)-SACHIN RAJUSA KATIGAR;
R2(B)-SUBHAM RAJUSA KATIGAR;
R3-GANAPATHI HULAGANSA KATIGAR)
---
THIS RFA IS FILED UNDER SEC.96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED: 26.11.2015 PASSED IN
O.S.NO.144/2015 ON THE FILE OF THE II ADDITIONAL SENIOR
CIVIL JUDGE, HUBBALLI, DISMISSING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:11682
RFA No. 100019 of 2016
JUDGMENT
1. The suit for partition filed by the daughters, who
claimed share in 2/5th share held by their mother
Hulagubai in the suit property, is dismissed.
2. The suit property is CTS No.3404 measuring 69 Sq.
Yards. The suit property is a residential property.
The plaintiffs claim that their mother purchased 1/5th
share in the property in the year 1977 vide
registered sale deed dated 22.07.1977, along with
other four persons, who are not connected to the
family of the mother of the plaintiffs. Later it is said
that the mother purchased 1/5th share of another
purchaser, and she acquired 2/5th share in the suit
property. These facts are not in dispute.
3. The plaintiffs who are five in numbers, claim that
they are the daughters of Hulagubai and they filed a
suit against two brothers namely, defendants No.2
and 3. Defendant No.1 is the purchaser of 1/5th
share. It is stated that remaining two sharers
NC: 2023:KHC-D:11682
RFA No. 100019 of 2016
transferred their share in favour of defendants No.2
and 3.
4. After the death of Hulagubai in the year 2015, the
plaintiffs who are five in number and who claimed to
be the daughters, filed a suit claiming equal share
along with defendants No.2 and 3 in the 2/5th share
held by their mother Hulagubai.
5. Defendants No.2 and 3 opposed the claim on the
premise that the plaintiffs are not the daughters of
Hulagubai. They set up a defence that Hulagubai
executed a Will dated 02.05.2015 and they
exclusively inherit Hulagubai's share under the Will.
6. The trial Court held that the Will is not proved and
the plaintiffs have not established the relationship
with Hulagubai. Aggrieved by the aforementioned
judgment and decree, the present appeal is filed.
7. Learned counsel appearing for the appellants would
submit that the relationship between the plaintiffs
and Hulagubai unequivocally admitted by DW1 in the
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RFA No. 100019 of 2016
cross-examination as well DW2, the neighbor of
DW1. This being the position, the trial Court could
not have dismissed the suit on the premise that the
plaintiffs have not established their claim that they
are the daughters of the deceased Hulagubai.
Learned counsel for the appellants would refer to the
cross-examination of DW1 and DW2 to support his
contention.
8. Though the defendants earlier engaged an advocate,
later the advocate issued a notice and sought
permission of the Court to retire from the case.
Thereafter, the names of the defendants are
reflected in the cause list and there is no
representation as of today.
9. This Court has considered the contentions raised by
the learned counsel for the appellants and also
considered the contentions raised by the defendants
before the trial Court and also perused the entire
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RFA No. 100019 of 2016
judgment and decree as well as the oral and
documentary evidence placed before the Court.
10. The following points are for consideration:
i. Whether the trial Court is justified in
holding that the plaintiffs have not
established their relationship with
Hulagubai?
ii. Whether the defendants prove that
Hulagubai executed a Will on 02.05.2015?
11. There is no dispute that Hulagubai had 2/5th share in
the suit schedule property at the time of her death.
She died on 16.05.2015. As far as the claim of the
plaintiffs that they are the daughters of Hulagubai is
concerned, there is clear admission by DW1 as well
as DW2 in their cross-examination.
The relevant portion of cross-examination of DW1
reads as under:
".......ªÁ¢AiÀÄgÀÄ ²æêÀÄw ºÀÄ®UÀƧ¬ÄAiÀĪÀgÀ ªÀÄPÀ̼ÀÄ
J£ÀÄߪÀÅzÀÄ ¤d......"
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RFA No. 100019 of 2016
The relevant portion of cross-examination of DW2
reads as under:
"..........²æêÀÄw ºÀÄ®UÀƧ¬ÄAiÀĪÀjUÉ 5 d£À ºÉtÄÚªÀÄPÀ̼ÀÄ
M§â UÀAqÀÄ ªÀÄUÀ EzÁÝg.É ¸Àzj
À 5 d£À ºÉtÄÚªÀÄPÀ̼À°è 4 d£À
ºÉtÄÚ ªÀÄPÀ̼ÀÄ CAzÀgÉ 2 jAzÀ 5£Éà ªÁ¢AiÀÄgÀÄ EAzÀÄ ªÀÄÄPÀÛ
£ÁåAiÀiÁ®AiÀÄzÀ°è ºÁdjzÁÝg...
É ......."
12. On perusal of the aforementioned admission in the
cross-examination, it is explicitly clear that the
plaintiffs are the daughters of deceased Hulagubai.
The trial Court could not have held that the plaintiffs
have not established their status as the daughters of
Hulagubai.
13. As far as the finding of the trial Court regarding the
alleged Will dated 02.05.2015 is concerned, the trial
Court has concluded on appreciation of the evidence
that the alleged Will is not proved.
14. The finding of the trial Court on the alleged Will is
not questioned by the defendants. This Court has
also considered the evidence relating to the alleged
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RFA No. 100019 of 2016
Will and the alleged Will set up by defendants No.2
and 3 does not evoke the confidence of this Court to
hold that Hulagubai executed the Will in favour of
defendants No.2 and 3 as claimed. It is also relevant
to note that the alleged Will is dated 02.05.2015 and
Hulagubai died on 06.05.2015 i.e., three days after
the alleged Will. It is one of the factors taken into
consideration by the trial Court to doubt the sound
state of dispensing mind of Hulagubai at the time of
execution of the alleged Will.
15. For the aforementioned reasons, this Court is of the
view that the finding of the trial Court that the
alleged Will is not proved, does not call for any
interference. However, the finding that the plaintiffs
are not the daughters of Hulagubai is erroneous
finding which is contrary to the evidence placed on
record.
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RFA No. 100019 of 2016
16. For the aforementioned reasons, this Court is of the
view that the judgment and decree passed by the
trial Court are required to be set aside.
17. Hence the following:
ORDER
i. The appeal is allowed.
ii. Judgment and decree dated 26.11.2015
passed by the learned II Addl. Senior Civil
Judge, Hubballi, in O.S.No.144/2015, are
set aside.
iii. Consequently, the suit of the plaintiffs is
decreed holding that each of the plaintiffs
is having equal share in 2/5th share of
Hulagubai in the suit schedule property.
iv. Registry to draw the decree accordingly.
Sd/-
JUDGE
gab/CT-PA
