Karnataka High Court
Smt Thimmakanavar Kalamma W/O Late ... vs Smt/ Thimmakanavar Huligemma W/O Late ... on 29 August, 2025
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RSA No. 100905/2024
Reserved on : 14.08.2025
Pronounced on : 29.08.2025
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
REUGLAR SECOND APPEAL NO.100905 OF 2024
BETWEEN:
THIMMAKANAVAR KALAMMA
W/O. LATE BHEEMAPPA,
SINCE DEAD BY LRS
SMT. THIMMAKANAVAR BHEMAVVA
W/O. T. HALAPPA,
AGE. 45 YEARS, OCC. AGRICULTURIST,
R/O. NAVALI VILLAGE-583219
TQ. HUVINAHADAGALI, DIST. BALLARI
Digitally signed by
MALLIKARJUN
...APPELLANT
RUDRAYYA
KALMATH
Location: HIGH
COURT OF
KARNATAKA
DHARWAD BENCH
(BY SRI. LAXMAN T. MANTAGANI, ADVOCATES)
Date: 2025.08.30
12:04:33 +0530
AND:
THIMMAKANAVAR HULIGEMMA
W/O. LATE HANUMANTHAPPA
SINCE DIED BY LR
SRI. H.T. HULUGEPPA S/O. H.T.
PARASAPPA
AGE. 44 YEARS, OCC. AGRICULTURIST,
R/O. NANDIHALLI VILLAGE-590014
TQ. HUVINAHADAGALI, DIST. BALLARI.
...RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING
TO, TO SET ASIDE THE JUDGMENT AND DECREE DATED 24.08.2024
IN R.A.NO.03/2022 PASSED BY THE COURT OF SENIOR CIVIL JUDGE
AND JMFC, HAGARIBOMMANAHALLI, ITINERARY SITTING AT SENIOR
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RSA No. 100905/2024
CIVIL JUDGE, HUVINAHADAGALI, CONFIRMING THE JUDGMENT AND
DECREE IN O.S.NO.71/2011 DATED 24.03.2015 PASSED BY THE
COURT OF THE CIVIL JUDGE AND JMFC, AT HUVINHADAGALI, AND
ALLOW THE RSA WITH COSTS, IN THE INTEREST OF JUSTICE AND
EQUITY.
IN THIS REGULAR SECOND APPEAL HAVING BEEN HEARD AND
RESERVED ON 14.08.2025 AND COMING ON FOR "PRONOUNCEMENT
OF ORDERS", THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA)
Appellant-defendant No.1 has preferred this appeal
against the judgment and decree dated 24th March, 2015
passed in Original Suit No.71 of 2011 by the Civil Judge & JMFC
at Hadagali (for short "the trial Court"), which is confirmed by
the Senior Civil Judge & JMFC, sitting at Hagaribommanahalli,
itinerary sitting Senior Civil Judge, at Hoovinahadagali (for short
"the appellate Court") in Regular Appeal No.3 of 2022 dated
24th August, 2024.
2. Brief facts leading to this appeal are that, on 16th
September, 2010, defendant No.1 executed registered gift deed
in favour of defendant No.2-Thimmakkanavar Bheemappa,
covering the suit properties. On 12th August, 2011, plaintiff
filed suit, seeking partition and separate position of one-third
share in the suit property. The same came to be decreed in
favour of the plaintiff on 24th March, 2015. Being aggrieved by
the said judgment and decree passed by the trial Court, the
appellant preferred Regular Appeal before the appellate Court in
Regular Appeal No.3 of 2022 which came to be dismissed.
Being aggrieved by the judgments and decree of both the
Courts, the appellant is before this Court in this Regular Second
Appeal.
3. Sri Laxman T Mantagani, learned Counsel appearing
for the appellant would submit that the suit properties are self-
acquired properties of defendant No.1, as she was doing milk
vending business and on her own earnings she purchased the
suit properties in the name of her husband viz. Bheemappa and
upon the death of her husband-Bheemappa, the defendant No.1
succeeded to the suit properties and thereafter, she executed
the registered Gift deed in favour of defendant No.2 on 16th
September, 2010, covering the suit properties. He would
submit that the trial Court, without considering the fact that
defendant No.1 is having pre-existing right over the suit
properties as also execution of gift deed in favour of defendant
No.2, proceeded to decree the suit on the ground that the suit
properties were not self-acquired properties of defendant No.1.
Both the Courts have failed to appreciate the evidence on
record in accordance with law and facts. Learned Counsel
would further submit that both the Courts have erred in holding
that the suit properties are joint family properties and in the
absence of substantial evidence, disregarded the claim of the
defendant that the properties were self-acquired properties by
defendant No.1 through her independent earning. Both the
courts have failed to recognise the registered gift deed dated
16th September, 2010. On all these grounds he sought for
admission of the appeal by formulating substantial question of
law.
4. A perusal of the judgment of the first appellate Court
makes it clear that the appellant has taken similar grounds that
are taken herein, before the first appellate Court also. The first
appellate Court has properly appreciated the evidence on record
and upheld the judgment and decree passed by the trial Court.
It is relevant to refer here to the observation made by the first
appellate Court at paragraph 9 of the judgment. The same
reads as under:
"9. As already observed by me in a foregoing
paragraph of the above judgment, the defendants have
marked only exhibit D1 before the trial court in their
evidence. The said exhibit D1 is a document styled as
«ªÁzÀ PÀgÁgÀÄ ¥ÀvÀæ (M¦àUÉAiÀÄ ¥ÀæweÁÕ ¥ÀvÀæ) written on a page in a
notebook. The said document is neither written on any
stamp paper nor it was registered or duly stamped by
making payment of any stamp duty and penalty. The
defendants have examined the DW1 Smt. Bhimavva, who
is the defendant No.2 and through her, the exhibit D1(a)
to (f) are marked in evidence. The Exhibit D1 is pressed
into service by the defendant to prove the alleged
agreement executed by the husband of defendant No.1,
father of the defendant number two and father-in-law of
the plaintiff by name late Sri Bheemappa. The contents of
Exhibit D1 shows that, the said Late Shri Bheemappa and
the father-in-law of defendant No.2 by name, Shri
Nagappa Lakshmana Gouda both have entered into an
agreement during the marriage of the defendant No.2 and
the said Late Shri Bheemappa had agreed to give his
daughter, the defendant No.2 in marriage along with all
the immovable property by way of Gift on the assurance of
looking after his wife, the defendant No.1 and his son, the
husband of plaintiff till their death. There is no mention
about the description of the properties given in gift to the
father-in-law of the defendant No.2 and the same is
admitted by DW1 in her cross-examination as true. The
defendants have not pleaded anything about the said
document in their said Exhibit D1 does not contain any
date to show that which was executed during the time of
marriage of the defendant No.2. Therefore, the marking of
the Exhibit D1 is not helpful to defendant/applicants to
prove their contentions. It is the case of the defendant
before the trial court that, late Sri Bheemappa was
suffering from asthma before 25 years from his death and
he was not doing any kind of work. The defendants have
not stated when thee said Sri Bheemappa was died. The
plaint averments show that he was died eight years earlier
to filing of the suit in the year 2011. Therefore, by
considering the plaint averments as true, in the absence of
any particular pleadings and the death certificate, late Sri
Bheemappa appears to have been died around 2003. The
Exhibit P17 marked by the plaintiff shows that, the change
of khata of the suit schedule properties entered in the
name of the defendant No.1 by Order dated 11.10.2004.
The said fact supports my conclusion about the yeat of
death of late Sri Bheemappa in the year 2003. The Ex.P17
Mutation register shows that said Late Sri Bheemaapa died
on 8.4 2003 and his wife the dfendant No.1
Smt.Thimmakka has has applied for change of Katha by
way of inheritance and same was accepted by the village
accountant. The Ex.P3 and Ex.P4 are the RTC extracts of
the schedule properties showing the Katha of the schedule
properties, standing in the name of Late Sri Bheemappa
during 1996-97, till 2000-01. The item No.2 contains
endorsement about purchase of property by late Sri
Bhemappa as per column No.10 of the RTC. Similar entry
is also made in respect of item No.1 as per column 10 of
exhibit P4. The defendants have contended that the
defendant No.1 has purchased the property in the name of
her husband, Late Sri Bheemappa. But the defendant
No.1 did not appear in the witness box to give her
evidence and she has not even produced and marked any
document or oral evidence to show about her income for
purchasing of the suit schedule properties. In the absence
of any oral and documentary evidence on behalf of the
defendant, their learned counsel has tried to assail the
judgment and decree of the trial court. Only for the reason
that, the trial court has recorded findings on both the issue
No.1 and 2 together. Even in the registered gift deed
executed by the defendant No.1 in favour of the defendant
No.2, it is recited that, µÀqÀÆå¯ï£À°è PÁt¹zÀ D¹ÛAiÀÄÄ £À£Àß ¥ÀwAiÀĪÀgÀ
¤zsÀ£ÀzÀ £ÀAvÀgÀ ¥ÉÆÃw ªÁgÀ¸À ºÀQÌ£À ¥ÀæPÁgÀ £À£Àß ºÉ¸Àj£À°è ¥ÀlÖ EzÀÄÝ, ºÁ° £À£Àß
ºÀPÀÄÌ C¢üãÁ£ÀĨsÀªÀzÀ°ègÀĪÀ, FªÀgÉUÀÆ AiÀiÁjUÀÆ AiÀiÁªÀ «zsÀ¢AzÀ®Æ ¥ÀgÁ¢ü£À
ªÀiÁqÀzÉà EgÀĪÀ, D¹ÛUÀ¼À £ÉÆÃAzÀt ºÁUÀÆ ªÀiÁgÁl ¤AiÀĪÀÄUÀ¼À£ÀÄß G®èAWÀ£É
ªÀiÁqÀzÉà EgÀĪÀ, AiÀiÁªÀÅzÉà «zsÀzÀ £ÁåAiÀiÁ®AiÀÄUÀ¼À°è «ªÁzÀPÉÆ̼À¥ÀqÀzÉÃ
ªÀÄÄPÀÛªÁjUÀĪÀ IÄt¨sÁgÀ gÀ»vÀªÀżÀî ¸ÀĪÀiÁgÀÄ gÀÆ.3,00,000/-(ªÀÄÆgÀÄ ®PÀë) gÀÆ¥Á¬Ä
¨É¯É ¨Á¼ÀĪÀ F PɼÀV£À µÉqÀÆå¯ï£À°è PÁt¹gÀĪÀ D¹ÛAiÀÄÄ EgÀÄvÀÛzÉ.
¤Ã£ÀÄ £À£Àß SÁ¸Á ªÀÄUÀ½zÀÄÝ, ¤£Àß «£ÀºÀ £À£ÀUÉ ¨ÉÃgÉ ªÀÄPÀ̼ÀÄ EgÀĪÀÅ¢®è. ¸À¢æ
D¹ÛAiÀÄÄ ¤£Àß fêÀ£ÀPÉÌ DzsÁgÀªÁUÀ¯ÉA§ GzÉÝñÀ¢AzÀ ºÁUÀÆ £À£Àß ªÉÄð£À ¦æÃw
«±Áé¸ÀPÁÌV F PɼÀV£À µÉqÀÆå¯ï£À°è PÁt¹gÀĪÀ D¹ÛUÀ¼À£ÀÄß ¤¤ßAzÀ AiÀiÁªÀÅzÉà «zsÀzÀ
¥Àæw¥sÀ®ªÀ£ÀÄß ¥ÀqÀAiÀÄzÉà ¸À¢æ D¹ÛUÀ¼À£ÀÄß zÁ£ÀªÁV PÉÆlÄÖ, ¸À¢æ zÁ£Á¹æUÀ¼À£ÀÄß
C¢üPÀÈvÀªÁV ¯ÉÃT ªÀÄÆ®PÀ F ¢£ÀªÉà ¤£Àß ¸Áé¢üãÀ ªÀiÁrgÀÄvÉÛãÉ. The above
recitals in the registered gift deed dated 16.9.2010 clearly
proves that, the defendant No.1 has obtained change of
Katha on the death of her husband. The Exhibit P2 Gift
deed was registered on 16.09.2010 and the plaintiff has
filed the suit on 07.08.2011. Therefore, the Exhibit P2 gift
deed pertains to a time when there was no dispute
between the plaintiff and the defendants, and they were
not at loggerheads with one another in respect of the suit
properties, and hence the said recital or relevant to
conclude the suit properties as self-acquired properties of
the father-in-law of the plaintiff, Late Sri Bheemappa. The
defendants have not disputed the relationship with the
plaintiff and it is also not an dispute that the parties are
governed under Hindu Law and the husband of defendant
No.1, father of defendant No.2 and father-in-law of the
plaintiff late Sri Bheemappa died intestate. Therefore, as
wife and daughter of late Sri Bheemappa, the defendant
each are entitled for 1/3 share and as the wife of diseased
son of late Sri Bheemappa. The plaintiff is entitled for
one-third share in his self acquired properties under
Section 8 of Hindu Succession Act, 1956. The trial Court
has considered the oral documentary evidence in the right
perspective and it has given proper and correct findings on
all the issues and therefore, I do not see any illegality or
perversity in the trial court judgment and the same does
not call for any interference. Therefore, I answer the Point
No.1 and Point No.2 in the negative."
5. On examination of the materials placed before me, I
do not find any error/illegality or infirmity in the impugned
judgment and decree to frame the substantial question of law,
as sought for by the appellants. Hence, I proceed to pass the
following:
ORDER
Appeal, being devoid of merits, dismissed at
the stage of admission itself.
Sd/-
(G BASAVARAJA)
JUDGE
lnn
CT-CMU
