Karnataka High Court
Shri.Parappa Basavantappa Mulwad vs Smt.Nagawwa @ Laxmi W/O Annappa Nagnur on 4 February, 2025
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RFA No. 100287 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO. 100287 OF 2019 (PAR/POS)
BETWEEN:
SHRI. PARAPPA BASAVANTAPPA MULWAD
AGE: 71 YEARS, OCC: AGRICULTURE,
R/O: KALLOLI, TQ: GOKAK,
BELAGAVI-591307.
...APPELLANT
(BY SRI. SANTOSH B. RAWOOT, ADVOCATE)
AND:
1. SMT. NAGAWWA @ LAXMI
W/O. ANNAPPA NAGNUR
AGE: 36 YEARS,
OCC: HOUSEHOLD WORK AND AGRICULTURE,
R/O: KALLOLI,
Digitally signed
by BHARATHI H
M
TQ: GOKAK, BELAGAVI 591307.
Location: HIGH
COURT OF
KARNATAKA
Date: 2025.02.05 2. SMT. MANJULA W/O. GURUNATH MARIHAL
12:52:11 +0530
AGE: 30 YEARS,
OCC: HOUSEHOLD WORK AND AGRICULTURE,
R/O: KALLOLI,
TQ: GOKAK, BELAGAVI-591307.
3. SMT. SHANTAVVA W/O. PARAPPA MULWAD
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O: KALLOLI,
TQ: GOKAK, BELAGAVI-591307.
4. SHRI. MALLAPPA S/O. PARAPPA MULWAD
AGE: 29 YEARS, OCC: AGRICULTURE,
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RFA No. 100287 of 2019
R/O: KALLOLI,
TQ: GOKAK, BELAGAVI-591307.
5. SMT. MAHADEVI W/O. PARAPPA MULWAD
D/O. BHIMAPPA HONNOLI
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O: KALLOLI,
TQ: GOKAK, BELAGAVI-591307.
6. SMT. LALITA W/O. HANUMANT HONNOLI
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
R/O: KALLOLI,
TQ: GOKAK, BELAGAVI-591307.
7. SHRI. BASAPPA S/O. PARAPPA MULWAD
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O: KALLOLI,
TQ: GOKAK, BELAGAVI-591307.
8. SHRI. SHIVAPPA S/O. PARAPPA MULWAD
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O: KALLOLI,
TQ: GOKAK, BELAGAVI-591307.
...RESPONDENTS
(BY SRI. CHETAN MUNNOLI,
SMT. SURABHI KULKARNI AND
SRI. RAGHUVEER R. SATTIGERI, ADVOCATES
FOR R1 AND R2;
R3 IS DELETED VIDE ORDER DATED 18.10.2019;
R4 SERVED;
SRI. SANTOSH S. HATTIKATAGI, ADVOCATE
FOR R5 TO R8)
THIS RFA IS FILED UNDER SECTION 96 R/W. ORDER 41 RULE
1 OF CPC., PRAYING TO, SET ASIDE THE JUDGMENT AND DECREE
DATED 26.03.2019 AND DECREE PASSED IN O.S.NO.195/2013 BY
THE CIVIL JUDGE, PRL. SENIOR CIVIL JUDGE GOKAK DISMISSING
THE SUIT OF THE PLAINTIFFS, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 20.01.2025, THIS DAY,
UMESH M ADIGA, J., DELIVERED THE FOLLOWING:
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RFA No. 100287 of 2019
CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA)
Defendant No.1 in O.S.No.195/2013, has preferred
this appeal against the judgment and decree passed in the
said case dated 26th March 2019, on the file of learned
Prl.Senior Civil Judge, Gokak, (for short, `trial Court').
2. We refer to the parties as per their ranks before
the trial Court.
3. Plaintiffs No.1 and 2 (respondents No.1 and 2
herein) have filed the suit contending that plaintiffs and
defendant No.3 are daughters and son of defendants No.1
and 2; Defendant No.4 is the wife and defendants No.5
to 7 are children of defendant No.1, but there was no
marriage between defendant No.1 and defendant No.4;
Therefore defendants No.4 to 7 are not at all related to the
family of plaintiffs and defendants No.1 to 3.
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4. Plaintiffs further contended that suit schedule
properties are ancestral joint family properties of plaintiffs
and defendants No.1 to 3; They are in joint possession
and enjoyment of plaintiffs and defendants No.1 to 3;
Defendants No.4 to 7 have no right over the said
properties; There was no partition effected between
plaintiffs and defendants No.1 to 3; Defendant No.1 prior
to filing of the suit, started distributing the income earned
from ancestral properties to defendants No.4 to 7. The
plaintiffs came to know that in respect of Survey
No.169/1A/1B, measuring 1 acre 24 guntas, situated at
Kalloli, Gokak Taluk, revenue records were mutated in the
name of defendant No.4; Therefore, they demanded
defendant No.1 to effect partition and allot their share in
the ancestral properties; Defendant No.1 refused to effect
partition, therefore they were constrained to file the suit.
5. The contentions of defendant No.1 is that
defendant No.4 is his legally wedded wife and defendant
Nos.5 to 7 are his legitimate children born from his
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wedlock with defendant No.4. He admits his relationship
with defendant No.2 and birth of plaintiffs and defendant
No.3 from the said illicit relationship. He also contends
that defendant No.2 is not his legally wedded wife and
plaintiffs as well as defendant No.3 are illegitimate
children born to him through defendant No.2. Therefore,
they have no right over the suit schedule properties and
they are not entitled for a share in the suit schedule
properties.
6. Defendant No.1 has also contended that suit
properties are not ancestral properties of the plaintiffs and
defendant No.3. He further contends that Survey
No.169/1A/1B, measuring 1 acre 24 guntas was purchased
by defendant No.4 out of the funds given to her by her
brother and it is not the property belonging to defendant
No.1 or his ancestors. Plaintiffs are not entitled for any
share. With these reasons, he prayed to dismiss the suit.
7. From the rival contentions of the parties, the trial
Court framed following issues :
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(1) Whether the plaintiffs prove that the
defendant-2 is the legally wedded wife and
themselves and the defendant-3 are the
legitimate children of defendant-1?
(2) Whether the plaintiffs further prove that the
suit properties are ancestral properties of the
joint family comprising themselves and the
defendants-1 to 3?
(3) Whether plaintiffs are entitled for the relief of
partition as prayed?
(4) What order or decree?
8. Plaintiffs to prove their contentions examined
PW-1 to PW-3 and got marked Exs.P-1 to P-33. Defendant
No.1 to prove his contentions examined himself as DW-1
and examined DW-2 and not marked any documents on
his behalf.
9. The trial Court after hearing both parties and
appreciating the pleadings and evidence on record,
answered issue Nos.1 to 3 in the affirmative and decreed
the suit as prayed by the impugned judgment and decree
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dated 26th March 2019. Same is challenged by defendant
No.1 in the present appeal.
10. We have heard the learned counsels appearing
for both parties.
11. Learned counsel appearing for the appellant/
defendant No.1 would submit that defendant No.1 in his
written statement has admitted that defendant No.4 is his
legally wedded wife and defendant Nos.5 to 7 are children
born from the said marital relationship. He stoutly denied
his relationship with defendant No.2 as legally wedded
wife and he contends that plaintiffs and defendant No.3
are his illegitimate children. It is the evidence of DW-1
that defendant No.4 is his first wife. Learned trial Judge
has not considered these facts and based on the
assumptions and presumptions, accepted the case of the
plaintiffs and decreed the suit. The learned trial Judge has
not properly assigned the reasons to hold that defendant
No.2 was the first wife of defendant No.1 and plaintiffs as
well as defendant No.3 are his legitimate children. He has
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further contended that suit properties are not ancestral
and joint family properties of plaintiffs and defendant
No.3. Therefore they were not entitled for any share in the
suit properties.
12. Learned counsel for defendant No.1 further
contends that plaintiffs have not proved that deceased
defendant No.2 was legally wedded wife of defendant
No.1. The evidence produced by defendant No.1 in this
regard is not reliable. Merely defendant No.1 admitted
that plaintiffs are his daughters and he performed their
marriage does not mean that he admitted the defendant
No.2 as his legally wedded wife of the plaintiff. The trial
Court has not considered these facts properly and
erroneously appreciated the evidence and decreed the
suit, which calls for interference.
13. Learned counsel for plaintiffs supported the
impugned judgment and submits that there were no
reasons to interfere in the said findings. The
appellant/defendant No.1 in the written statement more or
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less completely denied the case of the plaintiffs and
pleaded that they were not at all related to him; however
during the course of evidence he admitted that defendant
No.2 was his first wife and plaintiffs and defendant No.3
are his children. He also admitted all the facts pleaded by
the plaintiffs, during his evidence. Looking to the age of
plaintiffs as well as defendant No.3, it can be safely
accepted that defendant No.2 is the first wife of defendant
No.1. Defendant No.1 in his written statement not
seriously disputed about he inheriting the suit properties.
He also admitted that he was an agriculturist and he does
not have any other properties. He also admits that
properties are inherited by him. The said evidence shows
that other properties purchased by the defendant No.1
are from the joint family nucleus. Therefore, plaintiffs are
entitled for a share in the suit schedule properties.
14. Learned counsel further submits that defendant
No.4 is the second wife and defendant Nos.5 to 7 are born
to her through defendant No.1 and they are illegitimate
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children. Therefore, they will get a share in the share of
properties held by defendant No.1, that too, only after the
death of defendant No.1 as per Section 16(3) of Hindu
Succession Act, 1956. That was considered by the trial
Court and rightly held that at present they are not entitled
for a share. Contrary to the admitted facts, arguments
were advanced by the appellant, which is not tenable.
Hence prayed to dismiss the appeal.
15. Following points emerge for our determination :
(i) Whether the learned trial Judge erred in
holding that defendant No.2 is the first wife of
defendant No.1 and plaintiffs and defendant No.3
legitimate children of defendant No.1 and entitled
for share in the suit properties?
(ii) Whether learned trial Judge erred in decreeing
the suit and interference in the said finding is
required?
(iii) What order or decree?
16. Point No.1 : In the plaint, the plaintiffs have
stated about their relationship with defendant Nos.1 and 2
as well as defendant No.3. In the written statement,
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defendant No.1 disputed his relationship with plaintiffs and
defendants No.2 and 3. He has contended that defendant
No.4 is his legally wedded wife and defendants No.5 to 7
are his legitimate children born from his wedlock with
defendant No.4. He disputes his marriage with the
defendant No.2 but contends that from his physical
relationship with defendant No.2, plaintiffs and defendant
No.3 were born. He contends that defendant No.2 is not
his legally wedded wife.
17. PW-1 is plaintiff No.1 and daughter of
defendant No.1. In her evidence she has reiterated the
plaint averments. In her cross-examination, defendant
No.1 suggested that defendant No.2 is not his legally
wedded wife, but he had relationship with her and out of
the said relationship, plaintiffs and defendant No.3 were
born. PW-1 denied the suggestion of defendant No.1 that
he has not married to defendant No.2. She also denied
the suggestion that defendants No.5 to 7 alone are his
legitimate children.
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In the thorough cross-examination, nothing was
brought out to discard her evidence and documents
produced by her at Exs.P-1 to P-13.
18. PW-2 is the maternal aunt of defendant No.2.
She has stated that marriage of defendants No.1 and 2
was performed about fourty years prior to her evidence at
Kalloli village in front of house of defendant No.1 in
accordance with the customs prevailing in the Veerashiva
Lingayath community. She further stated that after the
marriage, defendant No.2 went to the house of defendant
No.1 to lead marital life. From the said marriage of
defendant Nos.1 and 2, plaintiffs and defendant No.3 were
born. She further stated that when PW-1 was aged about
9 years, defendant No.1 had illicit relationship with
defendant No.4 and defendant No.4 was not the legally
wedded wife of defendant No.1. Defendant No.4 married
with one Hanumanth Koujalagi and the said Hanumanth
Koujalagi did not obtain any divorce from defendant No.4.
She, her husband and her maternal aunt repeatedly
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requested defendant No.1 to discontinue his relationship
with defendant No.4, still he did not heed to their request.
19. In the cross-examination of PW-2 suggestions
made by the defendant No.1 were denied. She has stated
that marriage of defendant No.1 and defendant No.2 was
performed in front of house of defendant No.1 in Kalloli
village. One Mathapati Swamy had performed the
marriage. No photographs were taken at the time of
marriage. At the time of marriage of defendant No.2 she
was aged about 18 years. The evidence of PW-2 is
reliable. Merely she was close relative of defendant No.2
is not a ground to reject or discard her evidence.
20. Plaintiffs examined elder sister of defendant
No.2. Her evidence is incomplete and hence cannot be
considered.
21. In the cross-examination, DW-1, more or less
completely admitted the case of the plaintiffs. Some of
the relevant portions of the evidence were extracted and
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incorporated in the impugned judgment by the learned
trial Judge. Therefore there is no need to reproduce the
same. DW-1 admitted that he married defendant No.2
and from the said marriage he has children i.e., plaintiffs
and defendant No.3. He also admitted that he brought up
them, educated them and performed their marriages.
22. In his cross-examination DW-1 has stated that,
when he married defendant No.4, he was aged about 25
years and age of defendant No.4 was 20 years. He further
stated that age of plaintiffs No.1, 2 and defendant No.3
was 35, 30 and 20 years respectively. He has stated that
he got admitted them to school and provided their dates of
birth to the school as 22.07.1982, 10.06.1989, and
20.07.1990 respectively. He has also stated that age of
defendants No.5 to 7 are 30, 26 and 26 years respectively.
Further DW-1 admits in his cross-examination that
plaintiffs and defendant No.3 were born from his wedlock
with defendant No.2 and defendant No.2 is his legally
wedded wife. During the year 1975 he was residing in
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House No.10A of Kalloli village. In the voter's list of the
year 1975, the name and address of defendant No.2 was
also showing that she was residing in the very same
house.
23. Defendant No.1 examined another witness, who
is the resident of his village and neighbour of defendant
No.1, as DW-2. DW-2 in his evidence has stated that
defendant No.4 is the legally wedded wife of defendant
No.1 and defendants No.5 to 7 are legitimate children of
defendant No.1 and defendant No.4.
In his cross-examination, DW-2 has stated that
"when defendant No.1 married to defendant No.2, their
age was 25 years and 20 years respectively. When
defendant No.1 married to defendant No.4, their age was
35 years and 30 years respectively." The said evidence
also clearly indicates that defendant No.1 married to
defendant No.2 prior to his marriage with defendant No.4.
He has also stated that when parents of defendant No.1
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were alive, both defendants No.1 and 2 were residing with
them till their death.
24. Plaintiffs have produced Ex.P-21 i.e., voters list
of the year 2014 and voters list of the year 1975 is
produced at Ex.P-22; certificates issued by school in
respect of plaintiffs No.1 and 2 at Exs.P-27 and P-28
respectively; school certificate of defendant No.3 is
produced at Ex.P-29; and voters list of the year 1975 is
again produced at Exs.P-30 and P-31. In all these
documents name of defendant No.1 is shown as father of
plaintiffs and defendant No.3 and husband of defendant
No.2. During the course of cross-examination, DW-1
admits that defendant No.2 was his legally wedded wife
and plaintiffs and defendant No.3 are his legitimate
children. In view of the said admissions, there is no need
of much discussion of the documents produced by the
plaintiffs. The trial Court considering all these documents,
arrived at a right conclusion.
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25. Defendants No.4 to 7 did not enter the witness
box, especially defendant No.4 whom defendant No.1 said
to have married prior to his relationship with defendant
No.2. Why defendant No.1 could not examine defendant
No.4 or why defendant No.4 herself did not enter the
witness box to corroborate the defence of defendant No.1
is not explained. The above said evidence produced by
the plaintiffs proves that defendant No.2 is the legally
wedded wife of defendant No.1 and from the said
marriage, plaintiffs and defendant No.3 were born.
Therefore they are legitimate children of defendant No.1.
During subsistence of his marriage with defendant No.2,
defendant No.1 married to defendant No.4 and hence it is
illegal/void marriage and defendants No.5 to 7 are
illegitimate children of defendant No.1 born from his
second marriage.
26. Plaintiffs have produced RTCs of the suit
properties at Exs.P-1 to P-20 and Exs.P-23 to P-26.
Defendant No.1 did not dispute that he succeeded to the
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property from his ancestors. In respect of one of the
property he contends that, it was purchased in the name
of defendant No.4 from the funds given by her parents.
Defendant No.4 did not lead her evidence and did not
examine any witnesses to corroborate the case of
defendant No.1. Therefore the contentions of defendant
No.1 that one of the property was purchased in the name
of defendant No.4 from the funds given by her parents is
not proved.
27. Learned trial Judge considered the contentions of
both the parties and rightly came to the conclusion that
defendant No.2 is the legally wedded wife; Plaintiffs and
defendant No.3 are legitimate children of defendant No.1.
From the evidence of defendants, it is clear that defendant
No.1 has extra marital relationship with defendant No.4
after his marriage with defendant No.1. Therefore even if
there was marriage between defendants No.1
and 4, it was a void marriage and defendant No.4 is
second wife of defendant No.1. Hence, defendants No.5 to
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7 are not legitimate children of defendant No.1. Therefore
during the life time of defendant No.1, they are not
entitled for a share. They may get a share in the
properties belonging to defendant No.1, after his death.
The trial Court has also considered this fact.
28. For the aforesaid discussions, we are of the view
that trial Court had come to right conclusion and it does
not call for any interference by this Court. Hence, we
answer point Nos.1 and 2 in the negative and proceed to
pass the following:
ORDER
(i) Appeal is dismissed. No order as to costs.
(ii) The judgment and decree dated 26th March
2019, passed by the learned Prl.Senior Civil
Judge, Gokak, in O.S.No.195/2013, is
confirmed.
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Registry is directed to send a copy of this judgment
along with trial Court records to the concerned trial Court.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
BK
