Karnataka High Court
Shashikala And Anr vs Basawaraj And Ors on 8 August, 2024
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NC: 2024:KHC-K:5843
RFA No. 200096 of 2018
C/W RFA.CROB No. 200002 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO.200096 OF 2018 (PAR/POS)
C/W
RFA CROSS OBJ NO. 200002 OF 2020 (PAR/POS)
IN RFA.NO.200096/2018
BETWEEN:
BASAWARAJ S/O LATE ADEPPA
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O. SIRSI-A, TQ. & DIST. BIDAR.
...APPELLANT
Digitally signed
by RENUKA (BY SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
Location: HIGH
COURT OF AND:
KARNATAKA
1. SHASHIKALA W/O JAGANNATH,
AGE: 37 YEARS, OCC: HOUSEHOLD & AGRI,
R/O. SIRSI-A, NOW RESIDING AT JANWADA,
TQ. & DIST. BIDAR-585401.
2. NAGAMMA W/O LATE SHAMRAO,
AGE: 62 YEARS, OCC: HOUSEHOLD & AGRI,
R/O. SIRSI-A, TQ. & DIST. BIDAR-585330.
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RFA No. 200096 of 2018
C/W RFA.CROB No. 200002 of 2020
3. MALLIKARJUN S/O LATE TEJAPPA,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O. SIRSI-A, TQ. & DIST. BIDAR-585330.
4. SHIVARAJ S/O LATE TEJAPPA,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O. SIRSI-A, TQ. & DIST. BIDAR-585330.
...RESPONDENTS
(BY SRI K. M. GHATE, ADVOCATE FOR C/R1;
R2 AND R3 ARE SERVED;
V/O DTD. 30.10.2023 APPEAL AGAINST R4 IS DISMISSED.)
THIS RFA IS FILED UNDER SECTION 96 OF CPC, PRAYING
TO ALLOW THIS APPEAL WITH COST AND SET ASIDE THE
JUDGMENT AND DECREE IN O.S.50/2011 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND CJM AT: BIDAR DATED
16.04.2018, CONSEQUENTLY DISMISS THE SUIT OF THE
PLAINTIFFS.
IN RFA CROSS OBJ NO.200002/2020.
BETWEEN:
1. SHASHIKALA W/O JAGANNATH,
AGE: 39 YEARS, OCC: HOUSEHOLD & AGRI,
R/O. SIRSI-A, NOW RESIDING AT JANWADA,
TQ. & DIST. BIDAR-585401.
2. NAGAMMA W/O LATE SHAMRAO,
AGE ABOUT 64 YEARS, OCC: HOUSEHOLD & AGRI,
R/O. SIRSI-A, TQ. & DIST. BIDAR-585403.
...CROSS OBJECTORS
(BY SRI K. M. GHATE, ADVOCATE)
AND:
1. BASAVARAJ S/O LATE ADEPPA,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O. SIRSI-A, TQ & DIST. BIDAR-585401.
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RFA No. 200096 of 2018
C/W RFA.CROB No. 200002 of 2020
2. MALLIKARJUN S/O LATE TEJAPPA
AGE:55 YEARS, OCC: AGRICULTURE,
R/O SIRSI-A, TQ. & DIST. BIDAR.
DIED PER LR'S
2A. JAGADEVI W/O LATE MALLIKARJUN,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O. SIRSI-A, TQ. AND DIST. BIDAR-585403.
2B. SUDHARANI D/O LATE MALLIKARJUN,
(W/O HANAMANTHA),
AGE: 30 YEARS, OCC: HOUSEHOLD,
R/O. ASTOOR, TQ. AND DIST. BIDAR-585403.
2C. SANJURANI D/O LATE MALLIKARJUN,
(BASAVARAJ),
AGE: 25 YEARS, OCC: HOUSE HOLD,
R/O. VILLAGE KANAJI, TQ. BHALKI,
DIST. BIDAR-585403.
2D. SACHIN S/O LATE MALLIKARJUN,
AGE: 23 YEARS, OCC: PRIVATE WORK,
R/O. SIRSI-A, TQ. AND DIST. BIDAR-585403.
3. SHIVARAJ S/O LATE TEJAPPA,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O. SIRSI-A, TQ. & DIST. BIDAR-.
...RESPONDENTS
(BY SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE FOR R1;
R2(A) TO R2(D) ARE SERVED;
V/O DTD. 13.12.2023 NOTICE TO R3 DISPENSED WITH)
THIS RFA.CROB IS FILED UNDER SECTION XLI RULE 22
R/W SECTION 151 OF CPC, PRAYING TO ALLOW THE CROSS
OBJECTIONS FOR THE GROUNDS URGED, IN VIEW OF ORAL
AND DOCUMENTARY EVIDENCE ADDUCED BY THE PLAINTIFFS,
THE FINDINGS RECORDED ON ISSUE NO.1 AND 5 IN OS
NO.50/2011 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND CJM AT BIDAR, VIDE JUDGMENT AND DECREE
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RFA No. 200096 of 2018
C/W RFA.CROB No. 200002 of 2020
DATED:16.04.2018 MAY KINDLY BE SET ASIDE AND PLEASED
TO DECREE THE SUIT OF THE PLAINTIFFS AS PRAYED FOR,
ALONG WITH COSTS.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
The suit for partition by one Shashikala-plaintiff No.1
and Nagamma-plaintiff No.2 claiming 1/4th share in the
suit schedule propertsies is decreed in part. The Court held
that Nagamma - plaintiff No.2 is not the wife of Shamrao
under whom she claimed share and her claim is rejected.
2. The defendants who disputed the status of
Nagamma as the wife of Shamrao have filed the present
appeal and Nagamma whose share is denied also field
cross-objection.
3. One Veerabhardappa was the propositus. It is
stated that he had four sons by names Adeppa, Tejappa,
Shamrao and Aneppa. Shamrao is no more. The plaintiffs
claim to be the daughter and wife of Shamrao. Adeppa
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C/W RFA.CROB No. 200002 of 2020
was also no more and his son Basavaraj was arrayed as
defendant No.1. Tejappa was also no more and his two
sons Mallikarjun and Shivraj were arrayed as defendants
No.2 and 3. Veerabhadrappa's one more son Aneppa had
died issueless.
4. The defendants took a stand that Nagamma is
not the wife of Shamrao and as such they opposed the
suit. The Trial Court accepted the plea of the defendants,
that said Nagamma is not wife of Shamrao and
accordingly, awarded 1/3rd share to Shashikala the
daughter of Shamrao, who is plaintiff No.1.
5. The defendants are in this appeal challenging
the decree in favour of Shashikala. Nagamma has filed
cross-objection challenging the dismissal suit as against
plaintiff No.2. Only defendant No.1 is filed the appeal.
6. Sri Hashavardhan R Malipatil, learned counsel
appearing for the appellant would contend that there was
a previous partition among three children of
Veerabhadrappa. One son has transferred the share in
favour of one of the defendants.
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C/W RFA.CROB No. 200002 of 2020
7. Learned counsel for the cross-objector Sri K.M.
Ghate would contend that there were enough materials
before the Trial Court to hold that Nagamma is also wife of
Shamrao. In earlier land acquisition proceedings, the
compensation is awarded in favour of Nagamma and
Shashikala in respect of the property held by Shamarao.
This Court has considered the contention raised by the bar
and perused the records.
8. After hearing the counsel for the parties, the
following point arises for consideration.
"Whether the Trial Court is justified in holding that
the plaintiff No.2 is not the legally wedded wife of
Shamarao?"
9. Admitted factual position is Veerabhadrappa
was the propositus. He had four sons namely Shamrao,
Adeppa, Tejappa and Aneppa. The last son Aneppa was
bachelor and died issueless. Thus, Veerabhadrappa's
properties devolved upon his three sons, Shamrao,
Adeppa and Tejappa. The defendants have taken defence
that there is already a partition among the brothers and
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Shamrao got adequate share in the property and plaintiffs
are not entitled to claim any share. The said stand of the
defendants is not supported by any evidence. Since, it is
admitted that Veerabhadrappa was the propositus, his
property devolved upon his three sons namely Shamrao,
Adeppa and Tejappa. This being the position there is no
merit in the contention of the appellants who contend that
the partition has already taken place in the family.
10. As far as the contention of plaintiff No.2 who
has filed cross objection, being aggrieved by denial of the
share, it is noticed that in the previous proceedings, she
has claimed her share in the compensation amount in
respect of the land which was in the name of Shamarao
and also share in the property. This fact is not in dispute.
It is forthcoming from the revenue records that after the
death of Shamarao her name was entered into property
records as his wife. It is also relevant to note that there
was a dispute between plaintiff No.2 and the defendants
before the revenue authorities, where the status of
plaintiff No.2 as wife of Shamarao was questioned. The
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defendants took a stand that one Padmavathi is the wife of
late Shamarao.
11. Admittedly, nobody by name Padmavathi
claiming to be the wife of Shamarao has made a claim in
respect of estate of Shamarao.
12. Sri. Harshavardhan R Malipatil would contend
that plaintiffs have filed rejoinder contending that she
married Shamarao, after the divorce granted to
Shamarao's first wife Padmavathi. He would further submit
that no decree for divorce is produced before the Trial
court. Admittedly, Padmavathi has not made any claim
stating that she is legally wedded wife of Shamrao and she
is entitled to inherit the property of Shamrao. It is stated
that Padmavathi is no more.
13. Under these circumstances, this Court is of the
view that the Trial Court could not have denied share of
the plaintiff No.2. For the aforementioned reasons the
cross-objection is allowed in part.
14. Plaintiffs together are entitled to 1/3rd share in
the suit schedule properties.
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15. The judgment and decree of the Trial Court in
OS No.50/2011 dated 16.04.2018 on the file of Prl. Senior
Civil Judge and CJM, Bidar are modified, as indicated
above.
16. The appeal is dismissed and the cross-
objection allowed in part.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
KBM
CT:PK
