Karnataka High Court
Ayyappa S/O.Mudakappa Koujalgi vs Mahadevi W/O. Sangappa Jamadar on 1 February, 2025
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NC: 2025:KHC-D:2106
RSA No. 6168 of 2012
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 6168 OF 2012 (PAR)
BETWEEN:
SRI. AYYAPPA S/O. MUDAKAPPA KOUJALGI,
AGED ABOUT: 54 YEARS,
R/AT: KATARAKI, TQ: BILAGI,
DIST: BAGALKOTE- 587103.
...APPELLANT
(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
AND:
1. SMT. MAHADEVI W/O. SANGAPPA JAMADAR,
AGED ABOUT: 36 YEARS,
R/AT: JAMADAR ONI, HUNAGUND,
DIST: BAGALKOTE- 587103.
VN
BADIGER
Digitally signed by V N
2. SMT. GANGAVVA W/O. AYYAPPA KOUJALGI,
BADIGER
Location: High Court of
Karnataka, Dharwad Bench
Date: 2025.02.05 15:15:06
AGED ABOUT: 49 YEARS,
+0530
R/AT: KATARAKI, TQ:BILAGI,
DIST: BAGALKOTE- 587103.
3. KUMAR KUDAKAPPA S/O. AYYAPPA KOUJALGI,
AGED ABOUT: 17 YEARS,
R/AT: KATARAKI, TQ:BILAGI,
DIST: BAGALKOTE- 587103.
MINOR, R/BY HIS MOTHER
SMT. GANGAVVA W/O. AYYAPPA KOUJALGI.
...RESPONDENTS
(BY SRI. RAVI HEGDE,
SRI. VISHWANATH HEDGE, AND
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NC: 2025:KHC-D:2106
RSA No. 6168 of 2012
SMT TANUJA HEGDE, ADVOCATES FOR R1
R2 AND R3 SERVED UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED:20.07.2012
PASSED BY THE SENIOR CIVIL JUDGE, BILAGI AT BILAGI
PASSED IN R.A. NO.6 OF 2011 AND THE JUDGMENT AND
DECREE DATED 18.03.2011 PASSED IN O.S.NO.42 OF 2007
PASSED BY THE CIVIL JUDGE, BILAGI AND DISMISS THE SUIT
BY ALLOWING THE PRESENT APPEAL IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH)
This Appeal is preferred by defendant No.1, challenging
the judgment and decree dated 20.07.2012, passed in RA
No.6/2011 on the file of Senior Civil Judge, Bilagi, (for short,
hereinafter referred to as 'First Appellate Court'), dismissing the
appeal and confirming the judgment and decree dated
18.03.2011 in OS No.42/2007 on the file of Civil Judge, Bilagi
(for short, hereinafter referred to as 'Trial Court') decreeing the
suit of the plaintiff.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
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3. It is the case of the plaintiff that the original
propositus- Mudakappa died on 02.05.1977 leaving behind his
only son Ayyappa-defendant No.1. The defendant No.1 married
Sannatangevva, and in their wedlock plaintiff is born. The
defendant No.1 married Gangavva (second wife-defendant
No.2) and in their wedlock six children were born. Defendant
No.3 is the son of defendant Nos.1 and 2. It is the case of the
plaintiff that, the plaintiff is having share in the suit schedule
property and same was denied by the defendants and as such
the plaintiff has filed OS No.329/2005 and same was re-
numbered as OS No.42/2007 before the Trial Court.
4. After service of summons, the defendants entered
appearance and filed written statement denying the averments
made in the plaint. It is the specific contention of the defendant
No.1 that since, the first wife Sannatangevva had no male
children and therefore, with the consent of the first wife he
married defendant No.2 and also stated that he had
relinquished 3 acres 21 guntas of land as maintenance in
favour of first wife- Sannatangevva accordingly, sought for
dismissal of the suit.
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5. The Trial Court, based on the pleadings on record,
has formulated issues and additional issue for its consideration.
In order to establish their case, plaintiff herself was examined
as PW1 and produced 10 documents, which were marked as
Exhibits P1 to P10. On the other hand, two witnesses were
examined by the defendants as DW1 and 2 and produced 6
documents, which were marked as Exhibits D1 to D6.
6. The Trial Court, after considering the material on
record, by its judgment and decree dated 18.03.2011, decreed
the suit in-part, holding that, the plaintiff is entitled for ½ share
in the suit schedule property. Being aggrieved by the same, the
defendant No.1 has preferred RA No.06/2011 before the First
Appellate Court and same was resisted by the respondents
therein. The First Appellate Court after appreciating the
material on record by its judgment and decree dated
20.07.2012, dismissed the appeal consequently confirmed the
judgment and decree in OS No.42/2007. Feeling aggrieved by
the same, defendant No.1 has preferred this Regular Second
Appeal.
7. This Court vide order dated 18.09.2015 formulated
the following substantial question of law;
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"i) Whether the courts below are
justified in granting half share in favour of
the plaintiff ignoring the provisions of
Section 16 of the Hindu Marriage Act?
ii) Whether the Trial Court is justified
in decreeing the suit granting half share
when the plaintiff has not impleaded all the
children of the appellant/propositus of the
family in the suit?
iii) Whether the Trial Court is justified
in decreeing the suit granting half share to
the plaintiff, when the suit itself was not
maintainable during the lifetime of the
father?"
8. I have heard Sri. Mrutyunjay Tata Bangi, learned
counsel appearing for appellant and Sri. Vishwanath Hegde,
learned counsel appearing for respondents.
9. Sri. Mrutyunjay Tata Bangi, learned counsel
appearing for appellant contended that both the Courts below
committed an error as the suit schedule property is to be
devolved to the children born to the second wife - defendant
No.2 and therefore, sought for interference of this Court.
10. Per contra, Sri. Vishwanath Hedge, learned counsel
appearing for respondents supported the impugned judgment
and decree passed by the Courts below.
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11. Having heard the learned counsel appearing for the
parties, I have perused the original records. In order to
understand the relationship between the parties the genealogy
of the parties is extracted below:
Mudakappa (Propositus-dead)
Aiyappa (deft. No.1)
Sanna Tangewwa Gangawwa (Deft. No.2)
(1st wife) (2nd wife)
Mahadevi (plaintiff)
Nagawwa Mallawwa Rukamawwa Mudakappa Savitri Mallappa
(Deft. No.3)
12. On perusal of the genealogy of the parties makes it
clear that, the plaintiff is the daughter of Sannatangevva (first
wife of defendant No.1) and the defendant No.2 is the second
wife of defendant No.1. The Defendant No.3 is the son of
defendant Nos. 1 and 2. It is not in dispute that the defendant
No.1 got the schedule property from his father which is
ancestral property.
13. In that view of the matter, applying the principle
laid down by the Hon'ble Supreme Court in the case of
Revanasiddappa and Another Vs. Mallikarjun and
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Others1, the judgment and decree passed by the Courts below
is just and proper it does not call for interference in this appeal.
Accordingly, appeal is dismissed as devoid of merits.
Sd/-
(E.S.INDIRESH)
JUDGE
SMM
(2023) 10 SCC 1
