Karnataka High Court
Bhimarayagouda And Ors vs Smt. Bhagawwa And Anr on 5 July, 2024
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RFA No.200216 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO.200216 OF 2019 (PAR)
BETWEEN:
1. BHIMARAYAGOUDA
S/O DEVAPPAGOUDA PATIL
AGE: 72 YEARS,
OCC: AGRICULTURE,
2. SMT. KALLAWWA
W/O BHIMARAYAGOUDA PATIL,
AGE: 59 YEARS,
OCC: H.H.WORK,
Digitally signed by 3. RAMACHANDRAGOUDA
BASALINGAPPA
SHIVARAJ
DHUTTARGAON
S/O BHIMARAYAGOUDA PATIL,
Location: HIGH AGE: 59 YEARS,
COURT OF
KARNATAKA OCC: H.H.WORK,
4. NADAGOUDA
S/O BHIMARAYAGOUDA PATIL,
AGE: 35 YEARS,
OCC: AGRICULTURE,
5. BABUGOUDA
S/O BHIMARAYAGOUDA PATIL,
AGE: 33 YEARS,
OCC: AGRICULTURE,
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RFA No.200216 of 2019
6. SAHEBGOUDA
S/O BHIMARAYAGOUDA PATIL,
AGE: 31 YEARS,
OCC: AGRICULTURE,
7. SUNANDA
D/O BHIMARAYAGOUDA PATIL,
AGE: 29 YEARS,
OCC: H.H.WORK,
8. MAHANANDA
W/O SHRISHAIL HALASANGI,
AGE: 27 YEARS,
OCC: H.H.WORK,
ALL ARE R/O: BALAGANUR,
TQ: SINDAGI,
DIST: VIJAYAURA - 586 101.
...APPELLANTS
(BY SRI I.R.BIRADAR AND SMT. REKHA M. PATIL,
ADVOCATES)
AND:
1. SMT. BHAGAWWA
W/O MALAPPA HALASANGI,
AGE: 39 YEARS,
OCC: H.H.WORK,
RESIDING AT BALAGANUR,
TQ: SINDAGI,
DIST: VIJAYAPURA - 586 101.
2. SMT. SHIREWWA
W/O SHRIDHAR PUJARI
AGE: 34 YEARS,
OCC: H.H.WORK,
RESIDING AT BALAGANUR,
TQ: SINDAGI,
DIST: VIJAYAPURA - 586 101.
...RESPONDENTS
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RFA No.200216 of 2019
(BY SRI S.S.MAMADAPUR, ADVOCATE FOR R1;
SRI SHIVANAND PATIL, ADVOCATE FOR R2)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 25.11.2019
PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND J.M.F.C.,
SINDAGI IN O.S.NO.6/2015 BY DISMISSING THE SAID SUIT OF
THE PLAINTIFF, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS REGULAR FIRST APPEAL, COMING ON FINAL
HEARING THIS DAY, ASHOK S. KINAGI J., DELIVERED THE
FOLLOWING:
JUDGMENT
This Regular First appeal is filed by the appellants
challenging the judgment and preliminary decree dated
25.11.2019 passed in O.S.No.6/2015 by the learned
Single Civil Judge and JMFC, Sindagi.
2. The parties are referred to as per their ranking
before the trial Court. The appellants are defendant Nos.1
to 8, respondent No.1 is the plaintiff and respondent No.2
is defendant No.9.
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3. The brief facts giving rise to filing of this appeal
are as under:
Plaintiff filed a suit for partition and separate
possession claiming ½ share in the suit schedule
properties. It is the case of the plaintiff that, the landed
properties are the ancestral properties. Insofar as the
relationship between the plaintiff and defendants are that
defendant No.1 had two wives by name Smt. Neelamma,
the first wife and Smt. Kallawwa, the second wife. During
the life time of his first wife Neelamma, defendant No.1
had married Smt. Kallawwa i.e., defendant No.2, so the
plaintiff being the only daughter from Smt. Neelamma is
entitled to ½ share in the suit schedule properties,
whereas defendant Nos.3 to 9 being the children from
second wife of defendant No.1 i.e., defendant No.2 are not
entitled for share on the suit properties. It is contended
that land bearing R.S.No.70 was standing in the name of
her mother till her death on 19.05.2010, so also the
plaintiff and defendant No.1 being the legal
representatives of Smt. Neelamma are entitled for ½
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share in the land bearing Sy.No.70, wherein, the
defendant No.1 asserting himself to be an exclusive owner
has effected the partition and allotted shares to the
defendants. The plaintiff requested the defendant No.1 for
the legitimate share in the suit schedule properties. The
defendant No.1 refused to give her share. Hence, cause of
action arose for the plaintiff to file the suit for partition and
separate possession.
4. Defendant Nos.1 to 8 filed the written
statement contending that the plaintiff has suppressed the
material fact and deliberately not included the properties
bearing R.S.No.709 measuring 12 acres 13 guntas and
R.S.No.703 measuring 6 acre 19 guntas of Balaganur
village. The said properties were inherited by Smt.
Neelamma i.e., mother of plaintiff and wife of defendant
No.1 from her father and after the death of Smt.
Neelamma, defendant No.1 and the plaintiff are her legal
heirs but those two properties are not brought in the
hotchpotch. It is contended that land R.S.No.70 totally
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measuring 29 acres 18 guntas was purchased by
defendant No.1 on 26.07.1968. The vendors of R.S.No.70
have filed a suit in O.S.No.178/2010 for the relief of
declaration, which is pending for consideration. The
mother of the plaintiff filed a Civil Miscellaneous
No.56/1987 against the defendant No.1 for maintenance
which ended in a compromise and the land R.S.No.70 was
given to the mother of the plaintiff for maintenance with a
condition that after her death same shall revert back to
the defendant No.1, so R.S.No.70 is the self acquired
property of defendant No.1 in which the plaintiff cannot
claim any share. It is contended that during the year
2008, the brother of defendant No.1 had filed a suit in
O.S.No.258/2008 for partition and separate possession of
joint family properties. In the said compromise, R.S.No.70
was allotted to the share of defendant No.1 and the said
property is the self acquired property of defendant No.1.
Being the exclusive owner of R.S.No.70, the defendant
No.1 has effected a partition amongst his son's. It is
contended that plaintiff transferred the lands owned by
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her mother to her grandson with an intention to defeat the
legitimate right of defendant No.1. Hence, on these
grounds, prays to dismiss the suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1. Whether the plaintiff proves that she along with
the defendants constitute an undivided joint
family?
2. Whether the plaintiff proves that the suit
schedule-A properties are ancestral in nature?
3. Whether the plaintiff proves that she has a
legitimate share in the suit properties?
4. Whether the defendant No.1 proves that
R.S.No.70 of Hikkangutti is his self acquired
property?
5. Whether the plaintiff is entitled for the relief as
prayed for?
6. What order or decree?
6. Plaintiff in order to substantiate her case,
examined herself as PW-1 and got marked 34 documents
as Exs.P1 to P34. In rebuttal, defendant No.1 was
examined himself as DW-1 and got marked 8 documents
as Exs.D1 and 8. The trial Court after recording the
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evidence, hearing on both sides and on the assessment of
oral and documentary evidence of the parties, answered
issue Nos.1 to 3 and 5 in the affirmative and issue No.4 in
the negative, consequently, decreed the suit by the
judgment dated 25.11.2019.
7. The defendant Nos.1 to 8, aggrieved by the
judgment and preliminary decree passed in
O.S.No.6/2015, filed this Regular First Appeal.
8. Heard the learned counsel for the defendant
Nos.1 to 8 and learned counsel for the plaintiff.
submits that the land bearing R.S.No.70 was purchased by
defendant No.1 and the said Sy.No.70 is the self acquired
property of defendant No.1. She submits that the plaintiff
is not entitled to claim any share in the Sy.No.70. She
also submits that the plaintiff has not included the lands
owned by her mother i.e., land bearing Sy.Nos.709 and
703. Hence, suit for partial partition is not maintainable.
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She submits that the trial Court ought to have dismissed
the suit on the ground that suit for partial partition is not
maintainable, on the contrary, trial Court has decreed the
suit. Hence, the trial Court has committed an error in
passing the impugned judgment. Hence, on these
grounds, she prays to allow the appeal.
10. Per contra, learned counsel for the plaintiff
submits that, admittedly, the suit schedule properties are
the ancestral and joint family properties of plaintiff and
defendant No.1. He submits that during the life time of
Smt.Neelamma, defendant No.1 performed the marriage
with Kallawwa i.e., defendant No.2. The marriage of
defendant No.1 with defendant No.2 is void as per Section
5(i) of Hindu Marriage Act, 1955. He submits that the
plaintiff and defendant No.1 are the members of Hindu
undivided family. There is no partition effected between
the plaintiff and defendant No.1. Further, he submits that
defendant Nos.3 to 9 have no right to claim any share in
the suit schedule properties during the life time of
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defendant No.1. Admittedly, defendant Nos.3 to 9 are
born to defendant Nos.1 and 2 and their marriage is void.
Any children born out of void marriage are not entitled for
share in the ancestral properties and during the life time of
defendant No.1. In order to buttress his argument, he has
placed reliance on the judgment of Hon'ble Apex Court in
the case of REVANASIDDAPPA AND OTHERS VS. MALLIKARJUN
AND OTHERS reported in 2023 SCC ONLINE 1087, Hence,
on these grounds, he prays to dismiss the appeal.
11. We have perused the records and considered the
submissions of learned counsel for the parties.
12. The points that arise for our consideration are
as follows:
1. Whether the plaintiff proves that she along
with defendant No.1 constituted an undivided
joint family?
2. Whether the plaintiff proves that suit A
schedule properties are the ancestral
properties of plaintiff and defendant No.1?
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3. Whether Defendant No.1 proves that
R.S.No.70 of Hikkangutti is his self acquired
property?
4. Whether the defendants prove that judgment
and preliminary decree passed by the trial
Court is arbitrary and erroneous?
5. What order?
13. Point No.1: The plaintiff in order to establish
her case, examined herself as PW.1. She has reiterated
the plaint averments in the examination-in-chief. Further,
there is no dispute that the plaintiff is the daughter of
defendant No.1 born through Smt. Neelamma i.e., the first
wife. During the life time of Smt.Neelamma,
Bheemanagowda married to Smt.Kallawwa, second wife
i.e., defendant No.2 and defendant Nos.3 to 9 are the
children born to defendant Nos.1 and 2. Admittedly, during
the life time of Smt.Neelamma, defendant No.1 married to
defendant No.2. The said marriage is void as per Section
5(i) of Hindu Marriage Act, i.e., A marriage may be
solemnized between any two Hindus, if neither party has a
spouse living at the time of marriage. Admittedly,
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Smt.Neelamma was alive during the alleged marriage of
Bheemanagowda with defendant No.2 - Smt.Kallawwa.
Defendant No.1 has not denied his relationship with the
plaintiff. Further they constituted the undivided family
members. In view of the above discussion, we answer
point No.1 in the affirmative.
14. Point Nos.2 and 3: Point Nos.2 and 3 are
interlinked with each other. Hence they are taken together
for common discussion in order to avoid the repetition of
facts. It is the case of the plaintiff that, suit A schedule
properties are the ancestral properties of the plaintiff and
defendant No.1. In order to prove that the suit schedule
properties are the ancestral properties of the plaintiff and
defendant No.1, plaintiff has produced the documents i.e.,
ROR, marked as Exs.P1 to 8 in respect of land bearing
Sy.No.70/1 to 70/9. Exs.P9 to 12 are the ROR of
Sy.No.48, Ex.P13 is the ROR of Sy.No.396, Ex.P14 is the
ROR of Sy.No.332, Ex.P15 to 25 are the certified copies of
the mutation extracts, Ex.P26 is the death certificate of
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Smt.Neelamma, Exs.P27 to 29 are the mutation extracts.
Exs.P30 and 31 are the ROR of Sy.No.709, Sy.No.703/1.
Exs.P32 to 34 are the certified copies of mutation extracts.
15. In the course of cross examination, it was
suggested to PW.1 that land bearing Sy.Nos.709 and
703/1 were the properties of the mother of plaintiff i.e,
Smt.Neelamma as she has acquired those properties from
her parents. She admits that said properties were acquired
by her mother from her parents and she also admits that
said properties are not a joint family properties of the
plaintiff and defendant No.1 and she has not included the
said properties in the suit. It was elicited from the mouth
of PW.1 that Smt.Neelamma is the daughter of
Somalingappa. After his demise, the said properties came
to her mother and after the demise of her mother the
name of plaintiff is appearing in the revenue records and it
reflects in ME No.7594. The defendants also not denied
that suit schedule properties are the ancestral properties
of the plaintiff and defendant No.1. The defence of the
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defendant that defendant No.1 purchased the land bearing
Sy.No.70 under the registered sale deed and the said
property is the self acquired property of the defendant
No.1 and during the life time of defendant No.1 the
plaintiff has no right to claim a share in Sy.No.70 and
further in Sy.No.396 is concerned.
16. In rebuttal, defendant No.1 was examined as
DW.1 and he has reiterated the written statement
averments in the examination-in-chief and produced the
documents Ex.D1 is the certified copy of the order sheet
passed in O.S.No.264/2015, Ex.D2 is the certified copy of
the plaint in O.S.No.264/2015, Ex.D3 is the certified copy
of the written statement in O.S.No.264/2015, Exs.D4 and
5 are the certified copy of the issues, Ex.D6 is the
certified copy of the plaint in O.S.No.178/2010, Ex.D7 is
the certified copy of the written statement in
O.S.No.178/2010, Ex.D8 is the certified copy of the issues
framed in O.S.No.178/2010. In the course of cross
examination, DW.1 has admitted the suit schedule
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properties except in Sy.Nos.70 and 396 rest of the
properties are ancestral properties of the plaintiff and
defendant No.1.
17. From the perusal of oral evidence of PW.1 and
DW.1 and the documents produced by the parties, it
discloses that suit A schedule properties are the ancestral
properties of the plaintiff and defendants. Though it is the
case of the defendants that defendant No.1 purchased the
land bearing Sy.No.70 and the said land is the self
acquired property of defendant No.1. DW.1 during the
course of cross examination has clearly admitted that he
had purchased the said land out of the income derived
from the ancestral property. Further, plaintiff has also
proved that the family had a nucleus for purchasing the
land bearing Sy.No.70. Hence, Sy.No.70 is the joint family
property of plaintiff and defendant No.1, as same has been
purchased from the joint family nucleus.
18. We held that defendant No.1 is not the absolute
owner of R.S.No.70 as it the joint family property of
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plaintiff and defendant No.1 and the trial Court was
justified in holding that R.S.No.70 is purchased out of joint
family nucleus and it is a joint family property. It is the
case of the defendant that the plaintiff has not included
Sy.Nos.709 and 703/1. The learned counsel appearing for
the defendants before the trial Court during the course of
arguments fairly submitted that the properties bearing
Sy.Nos.709 and 703 were Stridhana properties of the
plaintiff and are the exclusive properties of the plaintiff
and are not the joint family properties. On the submission
made by the learned counsel for the defendants that, the
trial Court has recorded its finding that Sy.Nos.709 and
701 are not the joint family properties of plaintiff and
defendant No.1. The defendants themselves made
concession before the trial Court stating that the said
Sy.Nos.709 and 703/1 are not the joint family properties
of plaintiff and defendant No.1. It is the case of the
defendants that Sy.No.70 was given to Smt. Neelamma in
compromise with a condition that after the demise of Smt.
Neelamma, the said property reverted back to the
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defendant No.1. In view of the above discussion, we
answer point No.2 in the affirmative and point No.3 in the
negative.
19. Point No.4: The trial Court considering the
evidence of parties and on the basis of the submissions
made by the learned counsel for the defendants has
rightly passed the judgment. Admittedly, the plaintiff and
defendant No.1 being the members of Hindu Undivided
family and she being the daughter and is a coparcener is
entitled for equal share as per Section 6 of Hindu
Succession Act, 1956. The trial Court was justified in
granting ½ share to the plaintiff's in the suit schedule
properties. The trial Court was justified in passing the
impugned judgment. We do not find any error in the
impugned judgment. We decline to interfere with the
impugned judgment.
20. Accordingly, we proceed to pass the following:
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ORDER
The appeal is dismissed.
Judgment and decree passed by the trial
Court is hereby confirmed.
No order as to the costs.
Sd/-
JUDGE
Sd/-
JUDGE
SKS
