Karnataka High Court
Droupathi @ Ambamma W/O Nagappa ... vs Kamalabai W/O Subhaschandra on 6 February, 2024
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NC: 2024:KHC-K:1331
RSA No. 200209 of 2016
C/W RSA.CROB No. 200003 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 200209 OF 2016 (PAR)
C/W
RSA CROSS OBJ NO. 200003 OF 2023
IN RSA NO.200209 OF 2016
BETWEEN:
1. DROUPATHI @ AMBAMMA
W/O NAGAPPA SANDRASI,
AGE: 49 YEARS, OCC: HOUSEHOLD,
R/O SIROLLI, TQ: CHINCHOLI,
DIST: KALABURAGI-585101.
2. HASHAMMA
W/O LATE NAGAPPA SANNALLI,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O SIROLLI, TQ: CHINCHOLI,
Digitally signed
by SACHIN DIST: KALABURAGI-585101.
Location: HIGH
COURT OF
KARNATAKA 3. GUNDAMMA
W/O NARSAPPA GANAPUR,
AGE: 36 YEARS, OCC: HOUSEHOLD,
R/O SIROLLI, TQ: CHINCHOLI,
DIST: KALABURAGI-585101.
4. RAMESH @ LAKSHMAN
S/O NAGAPPA SANNALLI
SINCE DEAD BY LRS,
4(A) SHRIDEVI
W/O LATE RAMESH SANNALLI,
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RSA No. 200209 of 2016
C/W RSA.CROB No. 200003 of 2023
AGE: 37 YEARS,
OCC: HOUSEHOLD AND
AGRICULTURE,
4(B) PANDURANG
S/O LATE RAMESH SANNALLI,
AGE: 17 YEARS, OCC: STUDENT,
4(C) BHAGESH
S/O LATE RAMESH SANNALLI,
AGE: 14 YEARS, OCC: STUDENT,
4(D) NANDINI
D/O LATE RAMESH SANNALLI,
AGE: 12 YEARS, OCC: STUDENT,
ALL ARE R/O SIROLLI,
TQ: CHINCHOLI,
DIST: KALABURAGI - 585307.
THE APPELLANT NO.4(B) TO 4(D)
ARE MINORS AND REPRESENTED BY THEIR
NATURAL MOTHER I.E., APPELLANT NO.4(A)
SHRIDEVI W/O LATE RAMESH SANNALLI.
5. SURYAKANT @ NARSAPPA
S/O LATE NAGAPPA SANNALLI,
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O SIROLLI, TQ: CHINCHOLLI,
DIST: KALABURAGI-585101.
6. VAIJANATH
S/O LATE NAGAPPA SANNALLI,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O SIROLLI, TQ: CHINCHOLLI,
DIST: KALABURGI-585101.
7. SIDDAMMA
W/O LATE NAGAPPA DANNUR,
AGE: 59 YEARS, OCC: HOUSEHOLD,
R/O MUGHNOOR, TQ: SEDAM,
DIST: KALABURAGI-585101.
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RSA No. 200209 of 2016
C/W RSA.CROB No. 200003 of 2023
8. SABANNA
S/O LATE NAGAPPA DANNUR,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O MUGHNOOR TQ: SEDAM,
DIST: KALABURAGI-585101.
...APPELLANTS
(BY SRI. AJAYKUMAR A.K., ADVOCATE)
AND:
KAMALABAI
W/O SUBHASCHANDRA,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O VAZEERGAON, TQ: CHINCHOLI,
DIST: KALABURAGI.
NOW AT MALKHED, TQ: SEDAM,
DIST: KALABURAGI-585101.
...RESPONDENT
(BY SRI. B.D.HANGARKI, ADVOCATE)
THIS RSA FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 29.06.2016 PASSED IN R.A.
NO.93/2013, BY THE PRINCIPAL DISTRICT JUDGE,
KALABURAGI AND THE JUDGMENT AND DECREE DATED
21.09.2013 PASSED IN O.S NO.22/2012 BY THE SENIOR CIVIL
JUDGE CHINCHOLI AND CONSEQUENTLY DISMISS THE SUIT
OF THE PLAINTIFF WITH COST.
IN RSA CROSS OBJ NO.200003 OF 2023
BETWEEN:
KAMALABAI W/O SUBHASCHANDRA,
AGE: 50 YEARS, OCC:AGRI,
R/o VAZEERGAON, TQ:CHINCHOLI,
NOW AT MALKHED, TQ: SEDAM,
DIST:KALABURAGI-585317.
...CROSS OBJECTOR
(BY SRI. S.B.HANGARKI, ADVOCATE)
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RSA No. 200209 of 2016
C/W RSA.CROB No. 200003 of 2023
AND:
1. DROUPATHI @ AMBAMMA
W/O NAGAPPA SANDRASI,
AGE: 55 YEARS,
OCC:HOUSEHOLD,
R/O SIROLLI, TQ: CHINCHOLI,
DIST:KALABURAGI-585307.
2. HASHAMMA
W/O LATE NAGAPPA SANNALLI,
AGE.:55 YEARS, OCC:HOUSEHOLD,
R/O SIROLLI, TQ: CHINCHOLI,
DIST:KALABURAGI-585307.
3. GUNDAMMA
W/O NARSAPPA GANAPUR,
AGE: 42 YEARS,
OCC:HOUSEHOLD,
R/O CHIMMANCHOD,
TQ: CHINCHOLI,
DIST: KALABURAGI-585307.
4. RAMESH @ LAKSHMAN
S/O NAGAPPA SANNALLI,
AGE: 40 YEARS,
OCC:AGRI, R/O SIROLLI,
TQ:CHINCHOLI,
DIST:KALABURAGI-585307.
5. SURYAKANT @ NARSAPPA
S/O LATE NAGAPPA SANNALLI,
AGE: 38 YEARS, OCC:AGRI,
R/O SIROLLI, TQ:CHINCHOLI,
DIST:KALABURAGI-585307.
6. VAIJANATH
S/O LATE NAGAPPA SANNALLI,
AGE: 36 YEARS, OCC:AGRI,
R/O SIROLLI, TQ:CHINCHOLI,
DIST:KALABURAGI-585307.
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RSA No. 200209 of 2016
C/W RSA.CROB No. 200003 of 2023
7. SIDDAMMA
W/O LATE NAGAPPA DANNUR,
AGE: 65 YEARS, OCC:HOUSEHOLD,
R/O MUGHNOOR, TQ:SEDAM,
DIST:KALABURAGI-585222.
8. SABANNA S/O LATE NAGAPPA DANNUR,
AGE: 50 YEARS, OCC:AGRI,
R/O MUGHNOOR, TQ: SEDAM,
DIST:KALABURAGI-585222.
...RESPONDENTS
(BY SRI. AJAYKUMAR A.K, ADVOCATE FOR R1 TO R3, R5, R6
AND R8)
THIS RSA CROB FILED UNDER ORDER 41 RULE 22 OF
THE CODE OF THE CPC, PRAYING TO ALLOW THIS CORSS-
OBJECTION BY MODIFYING THE IMPUGNED JUDGMENT AND
DECREE DT.29.6.2016 PASSED BY THE COURT OF THE
PRINCIPAL DISTRICT JUDGE AT KALABURAGI IN RA
NO.93/2013 AND THE JUDGMENT AND DECREE DT. 21.9.2013
PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE,
CHINCHOLI IN O.S.NO.22/2012 THEREBY DECREEING THE
SUIT OF THE PLAINTIFF / CROSS -OBJECTOR GRANTING HER
8/21 SHARE IN ALL THE SUIT PROPERTIES.
THE APPEAL AND CROSS-OBJECTION COMING ON FOR
FINAL HEARING, THIS DAY THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
R.S.A.No.200209/2016 is filed by the defendants and
RSA CROB No.200003/2023 is filed by the plaintiff,
challenging the judgment and decree dated 29.06.2016 in
R.A.No.93/2013 on the file of Principal District Judge,
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C/W RSA.CROB No. 200003 of 2023
Kalaburagi, allowing the appeal and setting aside the
judgment and decree dated 21.09.2013 in
O.S.No.22/2012 on the file of Senior Civil Judge, Chincholi
decreeing the suit of the plaintiff in part.
2. For the sake of convenience, the parties in the
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. It is the case of the plaintiff that the original
propositus - Nagappa had three wives namely,
1) Gouramma, 2) Siddamma and 3) Hashamma. Plaintiff
and defendant No.1 are the children of Nagappa through
Gouramma. Defendant No.8 is son of Nagappa through
Siddamma (Defendant No.7). Defendant Nos.3 to 6 are
the children of Nagappa through Hashamma (Defendant
No.2). It is the case of the plaintiff that the suit schedule
properties are the ancestral properties of their father -
Nagappa and as such the plaintiff has filed suit seeking
relief of partition and separate possession in respect of
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C/W RSA.CROB No. 200003 of 2023
suit schedule properties in O.S.No.22/2012 on the file of
Trial Court.
4. After service of notice, the defendants No.1 to 6
entered appearance and filed detailed written statement,
admitting the relationship between the parties and took up
a specific contention that there was an oral partition
effected between the parties about 13 years back and in
the said partition, plaintiff was allotted 06 acres of land in
Sy.No.42/E and therefore contended that as the
aforementioned land was already allotted to the share of
plaintiff through her mother in an oral partition and
thereafter, out of o6 acres of land, plaintiff has sold 03
acres of land in favour of Rajashekhar as per registered
sale-deed dated 16.06.2008 and accordingly pleaded that
the relief sought for by the plaintiff is not maintainable.
5. The trial Court on the basis of the pleadings
framed the issues for its consideration.
6. In order to establish their case, plaintiff has
examined herself as PW.1 and produced 19 documents as
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C/W RSA.CROB No. 200003 of 2023
Ex.P.1 to Ex.P.19. Defendants have examined three
witnesses as DW.1 to DW.3 and marked nine documents
as Ex.D1 to Ex.D9.
7. The Trial Court after considering the material on
record, vide its judgment and decree dated 21.09.2013,
decreed the suit of the plaintiff in part. Being aggrieved by
the same, the plaintiff has preferred appeal in
R.A.No.93/2013 before the First Appellate Court and the
appeal was resisted by the defendants. The First Appellate
Court after considering the material on record, by its
judgment and decree dated 29.06.2016 allowed the
appeal and set-aside the judgment and decree dated
21.09.2013 in O.S.No.22/2012. Feeling aggrieved by the
same, the defendants have preferred the R.S.A.
No.200209/2016 and the plaintiff has preferred RSA CROB
No.200003/2023.
8. This Court by order dated 26.08.2016 framed
the following substantial questions of law :-
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C/W RSA.CROB No. 200003 of 2023
i) Whether the lower appellate Court has failed
to consider that similar issue with regard to
children born out of second marriage should
be treated as par with legitimate is pending
before the larger Bench of the Hon'ble
Supreme Court and in spite of that, rejected
the contention of the appellant ?
ii) Whether the Courts below were justified in
law in not properly appreciating the
documents like Exs.D-7 and 9 in order to
prove prior partition which took place in
between parties and parties have acted upon
the said partition ?
9. This court after considering the argument
advanced by the learned counsel appearing for the parties
formulated the additional substantial question of law :-
"Whether the impugned judgment and
decree passed by the Courts below requires to
be interfered with in view of the judgment of
the Hon'ble Supreme Court in the case of
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C/W RSA.CROB No. 200003 of 2023
Revanasiddappa and another vs.
Mallikarjun and others1?"
10. I have heard learned counsel Sri Ajaykumar,
A.K., appearing for the appellant and Sri S.B.Hangaraki,
learned counsel appearing for the cross-objectors.
11. Sri Ajaykumar A.K., learned counsel appearing
for the appellant contended that, the First Appellate Court,
has committed an error in not appreciating Ex.D7 and
Ex.D9 and he further contended that, there was a oral
partition and in-furtherance of the same, the parties are
acted upon and accordingly, sought for interference of this
Court. He also emphasized that the shares of the parties
are liable to be modified in view of the recent judgment of
the Hon'ble Supreme Court in the case of
Revanasiddappa (supra).
12. Sri S.B.Hangaraki, learned counsel appearing
for the cross objector/plaintiff urged that, the First
(2023) 10 SCC 1
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C/W RSA.CROB No. 200003 of 2023
Appellate Court ought to have allotted 8/21 share instead
of 1/4th share in the suit schedule property and
accordingly, he refers to Section 6 of the Hindu Succession
Act.
13. I have heard the learned counsel appearing for
the parties, the relationship between the parties is not
disputed. The Genealogical Tree of deceased Nagappa is
as follows:
Nagappa S/o Narsappa (died)
Gouramma (Died) Siddamma Hashamma
(D7) (D2)
Dropathi Kamalabai Sabanna
(D1) (Plf) (D8)
Gundamma Ramesh Suryakanth Vaijinath
(D3) (D4) (D5) (D6)
14. Perusal of the above Genealogical Tree would
indicate that late Nagappa had three wives, Gouramma
(mother of plaintiff and defendant No.1), Siddamma
(defendant No.7 and mother of defendant No.8) and
Hashamma, (defendant No.2 and mother of defendant
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C/W RSA.CROB No. 200003 of 2023
Nos. 3 to 6). Undisputably, it is proved before the Trial
Court that the Gouramma is the first wife of late Nagappa.
There are eight suit schedule properties and the schedule
'B' property is pertaining to Sy No.42/E measuring to an
extent of 09 acres, situate at Sirolli village, Chincholi
Taluk. Perusal of Ex.D7-Mutation Register would indicate
that, the land bearing Sy.No.42/2 (now 42/E) was
belonging to Nagappa and same was given to his first wife
Gouramma and thereafter, 06 acres of land was given to
plaintiff. On careful examination of the written statement
of the defendant would indicate that there is prior partition
in the family. It is not in dispute that the plaintiff had sold
three acres of land in Sy.No.42/E to one Rajashekar, as
per registered sale-deed dated 16.06.2008 (Ex.D1). In
that view of the matter, as already the registered Sale
Deed has been executed, during 2008 by plaintiff and
there is no material on record to establish that, there is
prior partition effected between the parties and acted upon
as such, and there is no evidence adduced by the plaintiff
or the defendants that there was prior partition. Be that as
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C/W RSA.CROB No. 200003 of 2023
it may be, in the event if there is prior partition between
the parties, there was no necessity for the plaintiff to file
suit for partition, incorporating the eight suit schedule
properties. In that view of the matter, I am of the opinion
that, the judgment and decree passed by both the Courts
below are just and proper, however, the interference be
made only in respect of allotment of share in respect of
the parties. It is pertinent to mention that as already 03
acres of land has been sold in respect of Rajashekar by the
plaintiff as per Ex.D9, and remaining 03 acres, is with the
plaintiff as well as stands in the name of her mother, the
said property be devolved among the sharers. In that view
of the matter, applying the principles enunciated by the
Hon'ble Supreme Court in Revanasiddappa's case
(supra), and accepting Smt.Gouramma, as first wife of
deceased Nagappa, plaintiff and defendant No.1 are
entitled for 1/3rd + 1/21 share each in the suit schedule
properties excluding 03 acres of land which is already
been sold in favour of Rajashekar as per Ex.D1.
Defendant Nos.2 and 7, being the wives of Nagappa are
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C/W RSA.CROB No. 200003 of 2023
not entitled for share in the property allotted in favour of
their husband-Nagappa. Defendant No. 3 to 6 and
defendant No.8 are entitled for 1/21 share each in the suit
schedule property.
15. With these observations modifying the shares of
the parties, the substantial question of law framed above
answered accordingly. In the result, I pass the following
ORDER
R.S.A.No.200209 of 2016 and Cross Objection
No.200003 of 2023 are disposed of with modification of
the shares as stated above.
Accordingly, the judgment and decree passed by the
Courts below are modified.
In view of disposal of R.S.A.No.200209/2016,
I.A.No.1/2018 does not survive for consideration.
Accordingly, it is dismissed.
Sd/-
JUDGE
SN/SB
