Karnataka High Court
Shiddalingeshwar Basavaraj Gadad vs Smt Gouravva W/O Iranna Jirankali on 8 January, 2024
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NC: 2024:KHC-D:384-DB
RFA No. 100042 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO.100042 OF 2023 (PAR/POS)
BETWEEN:
1. SHIDDALINGESHWAR BASAVARAJ GADAD
AGE: 49 YEARS, OCC: BUSINESS,
R/O: BASAVESHWAR NAGAR,
(SHAHAPUR PETH),
NEAR GOVERNMENT BOYS SCHOOL NO.4,
DIST: GADAG-582101.
2. VIRPAXAPPA BASVRAJ GADAG
AGE: 51 YEARS, OCC: BUSINESS,
R/O. BASAVESHWAR NAGAR,
(SHAHAPUR PETH),
NEAR GOVERNMENT BOYS SCHOOL NO.4,
DIST: GADAG-582101.
VIJAYALAKSHMI
3. ANOSUYA
M KANKUPPI W/O. LATE SRI. BASAVARAJ GADAG,
Digitally signed by
VIJAYALAKSHMI M
AGE: 75 YEARS, OCC: HOUSEHOLD WORK,
KANKUPPI
Date: 2024.01.18
11:32:27 +0530
R/O. BASAVESHWAR NAGAR,
(SHAHAPUR PETH),
NEAR GOVERNMENT BOYS SCHOOL NO.4,
DIST: GADAG-582101.
...APPELLANTS
(BY SRI. S.B.HEBBALLI, ADVOCATE)
AND:
1. SMT. GOURAVVA
W/O. IRANNA JIRANKALI,
AGE: 55 YEARS,
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RFA No. 100042 of 2023
OCC: HOUSEHOLD WORK,
R/O: R.S.NO.205,
A/2C, MULGUND ROAD,
NEAR VEERESHWAR NAGAR,
2ND CROSS, GADAG-582101.
2. SMT. RAJESHWARI
W/O. SADANAND BHOOTI,
AGE: 52 YEARS,
OOC: HOUSEHOLD WORK,
R/O: HOUSE NO.1368/A,
BANAGAR GALLI, GOKAK,
DIST: BELGAUM, GOKAK-591218.
3. MAHESH SHANKRAPPA GADAG
AGE: 60 YEARS, OCC: BUSINESS,
R/O: NEAR SHANABAG HOTEL,
GADAG-BETAGERI ROAD,
GADAG-582101.
...RESPONDENTS
(BY SRI.RAJASHEKHAR S.ARANI, ADVOCATE FOR R1;
NOTICE TO R2 AND R3 ARE SERVED)
THIS RFA IS FILED UNDER SEC. 96 READ WITH ORDER 41
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD
08.12.2022 PASSED IN O.S.NO.247/2021 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL
MAGISTRATE, GADAG, DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION AND DECLARATION.
THIS RFA COMING ON FOR ADMISSION, THIS DAY, ASHOK
S. KINAGI, J., DELIVERED THE FOLLOWING:
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RFA No. 100042 of 2023
JUDGMENT
This appeal is filed challenging the judgment and
preliminary decree dated 08.12.2022 passed in
O.S.No.247/2021 by the Principal Senior Civil Judge and
CJM, Gadag.
2. For the sake of convenience, parties are
referred to as per their ranking before the trial court.
3. Appellants are defendant Nos.1, 3 and 4,
respondent No.1 is the plaintiff and respondent Nos.2 and
4. Plaintiff filed a suit for partition and separate
possession claiming 1/5th share in the suit schedule
properties. It is contended that one Veerbhadrappa was
the propositus of the family. He had a wife by name
Neelamma. Both of them died leaving behind three sons
and five daughters. Plaintiff is the daughter of second son
namely, Basavaraj. The suit schedule properties are the
joint family properties of the plaintiff and defendants.
Plaintiff and defendants are the members of the Hindu
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undivided joint family. Plaintiff demanded for partition and
separate possession, but the defendants denied to effect
partition and separate possession. Hence, cause of action
arose for the plaintiff to file the suit for partition and
separate possession.
5. Defendant No.2 filed consent written statement.
Defendant Nos.1, 3 and 4 filed written statement denying
the averments made in the plaint and contended that suit
is not maintainable. The genealogy furnished by the
plaintiff is not correct. It is contended that Basavaraj
purchased suit schedule 1(a to c). He himself and
defendant No.5 were running the shop jointly and
purchased suit schedule 1(d) property from the joint
earnings. Hence, suit schedule 1(a to c) properties are
self-acquired properties of deceased husband of defendant
No.4 and father of plaintiff and defendant Nos.1 to 3.
Defendant No.4 has no share in the said properties. It is
contended that defendant Nos.1 to 4 and deceased
Basavaraj had already given shares of the plaintiff and
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defendant No.2 at the time of their marriage by way of
cash and gold ornaments. Hence, they are not entitled for
share in the suit schedule properties. On these grounds,
they prayed to dismiss the suit.
6. The trial court on the basis of the pleadings of
the parties, framed following issues:
1) Whether the plaintiff proves that, the suit
schedule 1(a to c) properties are self acquired
properties of the deceased Basavaraj and after
his death, the plaintiff and defendant Nos.1 to 4
have got equal share in the suit schedule
properties?
2) Whether the plaintiff is entitled for 1/5th share
in suit schedule 1(a to c) properties and 1/10th
share of 1(d) property?
3) Whether the defendant No.2 proves that, she is
having legitimate share as contending in the
written statement?
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4) Whether the defendant No.1, 3 and 4 prove
that, the suit schedule 1(a to c) properties are
the self acquired properties of the deceased
Basavaraj and 1(d) property is jointly purchased
property?
5) Whether the plaintiff is entitled for relief as
sought in the suit?
6) What order or decree?
7. The plaintiff herself examined as P.W.1 and got
marked 5 documents as Exs.P1 to P5. Defendant No.2
examined herself as D.W.1, defendant No.1 was examined
as D.W.2 and got marked 3 documents as Exs.D1 to D3.
The trial court on assessment of oral and documentary
evidence answered issue Nos.1 to 3 and 5 in the
affirmative, issue No.4 in the negative and issue No.6 as
per the final order. The suit of the plaintiff is decree. It is
ordered and decreed that plaintiff is entitled for 1/5th share
in suit schedule 1(a to c) properties and also entitled for
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1/10th share in the suit schedule 1(d) property for partition
and separate possession by metes and bounds. Defendant
No.2 is entitled for 1/5th share in suit schedule 1(a to c)
properties and also entitled for 1/10th share in the suit
schedule 1(d) property for partition and separate
possession by metes and bounds. Aggrieved by the
judgment and preliminary decree, defendant Nos.1, 3 and
4 have filed this appeal.
8. Heard the learned counsel for defendant Nos.1,
3 and 4 and learned counsel for the plaintiff.
submits that the trial court has not framed proper issues
and further all issues were decided at a stretch by giving
common reasons. He submits that finding recorded on
issue No.1 to the effect that suit schedule 1(a to c) are
self-acquired properties of the deceased Basavaraj is not
correct. He submits that plaintiff No.1 and defendant No.2
were given cash and gold ornaments at the time of their
marriage and they are not the joint family members. He
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submits that the trial court committed an error in passing
the impugned judgment and decree. Hence, on these
grounds he prayed to allow the appeal.
10. Per contra, learned counsel for the plaintiff
supports the impugned judgment and decree and
submitted that plaintiff being the daughter of Basavaraj is
entitled for share in the suit schedule properties. He
submits that defendant Nos.1, 3 and 4 have failed to
establish that they had given cash and gold and performed
marriage of plaintiff and defendant No.2. Hence, he
submits that the trial court was justified in passing the
impugned judgment and decree. Hence, on these grounds,
he prayed to dismiss the appeal.
11. Perused the records and considered the
submissions of the learned counsel for the parties. The
points that arise for our consideration are:
1) Whether the plaintiff proves that suit schedule
1(a to c) properties are self-acquired properties
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of deceased Basavaraj and after his demise,
plaintiff and defendant Nos.1 to 4 have got
equal share in the suit schedule properties?
2) Whether defendant Nos.1, 3 and 4 prove that
judgment and decree passed by the trial court
is perverse, arbitrary and call for interference?
12. Point No.1: There is no dispute in regard to the
relationship between the parties and the properties were
owned by the deceased Basavaraj. Further, the suit
schedule 1(a to c) properties and suit schedule 1(d)
property were standing in the name of the deceased
Basavaraj. The plaintiff in order to prove her case
examined herself as P.W.1 and reiterated the plaint
averments in her examination-in-chief. Further, the
plaintiff to prove her case produced documents. Exs.P1 to
P3 are the RTC extracts, Ex.P4 is Form No.3 and Ex.P5 is
the death certificate of deceased Basavaraj. From perusal
of the records produced by the plaintiff, it clearly
establishes that plaintiff is the daughter of the deceased
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Basavaraj and during his lifetime, he has purchased the
suit schedule properties.
13. In rebuttal, defendant No.2 was examined as
D.W.1 and defendant No.1 was examined as D.W.2. D.W.1
has reiterated the written statement averments in her
examination-in-chief and contended that defendant Nos.1,
3 and 4 are the owners of the suit schedule properties and
their names appearing in the record of rights. In order to
substantiate the defence of the defendants, the
defendants have not produced any record to show that
father gave cash and gold ornaments to the plaintiff.
Further, defendant No.1 was examined as D.W.2. He has
reiterated the written statement averments in his
examination-in-chief.
14. From perusal of the material on record, it is
clear that properties were acquired by the deceased
Basavaraj. As per Section 8 of the Hindu Succession Act, if
the property possessed by a male Hindu dies intestate, the
property devolves upon the legal heirs of the deceased.
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Plaintiff and defendants being the legal heirs of the
deceased Basavaraj, they are entitled for equal share in
the properties. The trial court after considering the
material on record was justified in recording a finding that
plaintiff has proved that suit schedule properties are self-
acquired properties of the deceased Basavaraj and after
his death, plaintiff and defendant Nos.1 to 4 have
succeeded to the suit schedule properties and they are
entitled for equal share. In view of the above discussion,
we answer point No.1 in the affirmative.
15. Point No.2: As we have already recorded a
finding on point No.1 that suit schedule properties are the
self-acquired properties of deceased Basavaraj and he died
intestate. As per Section 8 of the Hindu Succession Act,
plaintiff and defendant Nos.1 to 4 being the legal heirs of
the deceased Basavaraj are entitled for equal share. The
trial court has rightly passed the impugned judgment and
decree. In view of the above discussion, we answer point
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No.2 in the negative. Accordingly, we proceed to pass the
following:
ORDER
The appeal is dismissed.
The judgment and decree passed by the trial court is
confirmed.
No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
MBS
Ct/vh
