Karnataka High Court
Smt. Mahadevi W/O Shadaksharayya ... vs Shadaksharayya S/O Mallayya Hiremath on 17 February, 2025
-1-
NC: 2025:KHC-D:3174
RSA No. 100917 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 17TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100917 OF 2017 (PAR)
BETWEEN:
1. SMT. MAHADEVI W/O SHADAKSHARAYYA HIREMATH
AGE: 49 YEARS, OCC: AGRICULTURE
& HOUSEHOLD WORK, R/O: RAMANAL,
TALUK: KALAGHATAGI, DIST: DHARWAD,
NOW R/AT: HIREHARAKUNI,
TALUK: KUNDGOL, DIST: DHARWAD-581113.
2. SMT. IRAMMA @ LAXMI
W/O MUTTAYYA HUNGUNDMATH,
AGE: 31 YEARS, OCC: AGRICULTURE
& HOUSEHOLD WORK, R/O: BYALYAL,
TALUK: NAVALGUND, DIST: DHARWAD-582208.
...APPELLANTS
(BY SRI H.M. DHARIGOND, ADVOCATE)
AND:
Digitally
signed by 1. SHADAKSHARAYYA S/O MALLAYYA HIREMATH
VN AGE: 52 YEARS, OCC: AGRICULTURE,
BADIGER
Location: R/O: RAMANAL, TALUK: KALAGHATAGI,
High DIST: DHARWAD-581204.
Court of
Karnataka,
Dharwad
Bench 2. SMT. PARVATEWWA
W/O SHADAKHSHARAYYA HIREMATH,
AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
R/O: RAMANAL, TALUK: KALAGHATAGI,
DIST: DHARWAD-581204.
3. AISHWARAYA
D/O SHADAKHSHARAYYA HIREMATH,
AGE: 26 YEARS, OCC: HOUSEHOLD WORK,
R/O: RAMANAL, TALUK: KALAGHATAGI,
DIST: DHARWAD-581204.
-2-
NC: 2025:KHC-D:3174
RSA No. 100917 of 2017
4. RATNA
D/O SHADAKHSHARAYYA HIREMATH,
AGE: 24 YEARS, OCC: HOUSEHOLD WORK,
R/O: RAMANAL, TALUK: KALAGHATAGI,
DIST: DHARWAD-581204.
5. DEEPA
D/O SHADAKHSHARAYYA HIREMATH,
AGE: 17 YEARS, OCC: STUDENT,
REPRESENTED BY MOTHER GUARDIAN
RESPONDENT NO.2.
R/O: RAMANAL, TALUK: KALAGHATAGI,
DIST: DHARWAD-581204.
6. GANGAYYA S/O MALLAYYA HIREMATH
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: RAMANAL, TALUK: KALAGHATAGI,
DIST: DHARWAD-581204.
...RESPONDENTS
(BY SRI H.R.GUNDAPPA, ADVOCATE FOR R1 TO R5,
R6- HELD SUFFICEINT)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 31.07.2017 PASSED
BY THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE,
DHARWAD, PASSED IN R.A.NO.167/2016 AND CONFIRM THE
JUDGMENT AND DECREE DATED 04.06.2016 PASSED IN
O.S.NO.207/2013 PASSED BY THE III ADDITIONAL SENIOR CIVIL
JUDGE AT HUBBALLI.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
-3-
NC: 2025:KHC-D:3174
RSA No. 100917 of 2017
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH)
This appeal is preferred by the plaintiffs assailing the
judgment and decree dated 31.07.2017 in R.A.No.167/2016 on
the file of the IV Additional District and Sessions Judge,
Dharwad (for short "the First Appellate Court") allowing the
appeal and setting aside the judgment and decree dated
04.06.2016 in O.S.No.207/2013 on the file of the III Additional
Senior Civil Judge, Hubballi (Itinerary Court at Kalaghatagi) (for
short "the Trial Court") decreeing the suit in part.
2. For the sake of convenience, the parties are
referred to as per their rank before the Trial Court.
3. It is the case of the plaintiffs that plaintiff No.1 is
the wife of defendant No.1 and plaintiff No.2 is the daughter of
plaintiff No.1 and defendant No.1. It is the case of the plaintiffs
that defendant No.2 is the second wife of defendant No.1 and
defendants No.3 to 5 are the children of defendant No.1
through second wife (defendant No.2). It is stated in the plaint
that the suit schedule properties are belonging to the father of
defendant No.1-Mallayya and on his demise, the property was
devolved amongst the children of Mallayya. It is the case of the
NC: 2025:KHC-D:3174
plaintiffs that the plaintiffs sought for share in the suit schedule
properties as defendant No.1 was intending to gift the A
schedule property in favour of defendant No.2 and therefore,
O.S.No.207/2013 was filed before the Trial Court seeking
partition and separate possession in respect of the suit
schedule properties.
3.1. On service of notice, defendants No.1 to 4 entered
appearance through their counsel and filed detailed written
statement denying the averments made in the plaint. It is the
case of the defendant No.1 that the defendant No.1 has
purchased the land bearing Survey No.67/1B measuring 1 Acre
in the name of plaintiff No.1 and also defendant No.1 has
performed the marriage of plaintiff No.2 and therefore, sought
for dismissal of the suit.
3.2. On the basis of the pleadings of the parties, the
Trial Court framed the issues for its consideration. In order to
prove their case, plaintiff No.1 has examined herself as PW1
and produced 34 documents and same were marked as Ex.P1
to Ex.P34. The defendant No.1 was examined as DW1 and got
marked seven documents as Ex.D1 to Ex.D7.
NC: 2025:KHC-D:3174
3.3. The Trial Court, after considering the material on
record, decreed the suit in part holding that the plaintiff No.2 is
having half share in A Schedule property and 1/4th share in B
schedule property. Feeling aggrieved by the same, the
defendants have preferred R.A.No.164/2016 before the First
Appellate Court and the appeal was resisted by the plaintiffs.
The First Appellate Court, after considering the material on
record, by its judgment and decree dated 31.07.2017 allowed
the appeal and consequently dismissed the suit filed by the
plaintiffs. Feeling aggrieved by the same, the plaintiffs have
preferred this appeal.
4. This Court vide order dated 26.06.2019 framed the
following substantial question of law:
"Whether the first appellate Court is justified in
allowing the application filed under Order XLI
Rule 27 of the Code of Civil Procedure, 1908 by
the appellants and proceeding to pronounce the
Judgment on the basis of the documents
produced without complying provisions of Order
XLI Rule 27 of the Code of Civil Procedure, 1908
without giving an opportunity to the parties to
prove or disprove the documents produced by
way of additional evidence in view of the
NC: 2025:KHC-D:3174
Judgment in the case of Uttaradi Mutt v.
Raghavendra Swamy Mutt reported in 2019 AIAR
(Civil) 66?"
5. This Court, upon hearing the parties, on 13.02.2025
formulated the following substantial questions of law for
consideration of this appeal.
i) Whether both the Courts below were justified
in denying the share to the plaintiff No.1?
ii) Whether the judgment and decree passed
by the First Appellate Court requires
reconsideration?
6. I have heard Sri. H. M. Dharigond learned counsel
appearing for the appellants and Sri. H.R.Gundappa learned
counsel appearing for respondents No.1 to 5.
7. Learned counsel appearing for the appellants
submitted that the schedule properties are belonging to the
father of the defendant No.1 and on his demise the same were
allotted to the share of defendant No.1 through partition in the
family and therefore, the plaintiffs are entitled for share in the
properties and the same was not considered by both the Courts
below. Accordingly, sought for interference of this Court.
NC: 2025:KHC-D:3174
8. Per contra, learned counsel appearing for the
respondents No.1 to 5 submitted that since the property is self-
acquired property of Mallayya (father of defendant No.1) and
therefore, Section 8 of the Hindu Succession Act is applicable to
the case and therefore, sought for dismissal of the appeal.
9. In the light of the submission made by the learned
counsel appearing for the parties and in order to understand
the relationship between the parties, the genealogical tree of
the parties is extracted, which reads as below:
Mallayya (died)
Sangawwa Gangayya Shadaksharayya Shekayya
(Def.No.6) (Def.No.1)
Mahadevi (1st wife) Parvatewwa (2nd wife)
Plaintiff No.1 Defendant No.2
Iramma @ Laxmi (Daughter)
Aishwarya Ratna Deepa
(Def.No.3) (Def.No.4) (Def.No.5)
10. Perusal of the genealogy tree would indicate that
the original propositus-Mallayya had four children including
defendant No.1 and they are Sangawwa, Gangayya,
NC: 2025:KHC-D:3174
Shadaksharayya (defendant No.1) and Shekayya. The plaintiff
No.1 is the wife of defendant No.1 and plaintiff No.2 is the
daughter of defendant No.1 and plaintiff No.1. On careful
examination of the finding recorded by the Trial Court would
indicate that the suit schedule properties are belonged to
Mallayya and on his demise, defendant No.1 succeeded to the
same by partition. In that view of the matter, since the plaintiff
No.1 is the wife of defendant No.1 and plaintiff No.2 is the
daughter of defendant No.1, both the plaintiffs are entitled to
1/3rd share each in the properties devolved to the share of the
Shadaksharayya (defendant No.1). In that view of the matter,
the Trial Court has committed an error in decreeing the suit in
part insofar as plaintiff No.2 is concerned and in rejecting the
claim made by the plaintiff No.1 is concerned. In that view of
the matter, I am of the view that both the Courts below have
committed an error in allotting shares to the parties.
Accordingly, the appeal deserves to be allowed. The substantial
question of law favours the plaintiffs. In the result, I pass the
following:
NC: 2025:KHC-D:3174
ORDER
i) The appeal is allowed.
ii) The judgment and decree dated 31.07.2017 in
R.A.No.167/2016 passed by the IV Additional
District and Sessions Judge, Dharwad is hereby
set aside and the judgment and decree dated
04.06.2016 in O.S.No.207/2013 passed by the
III Additional Senior Civil Judge, Hubballi is
hereby partly decreed holding that the plaintiff
No.1 and defendant No.2 and 3 are entitled for
1/3rd share each in the schedule properties.
iii) In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive
for consideration and are disposed of
accordingly.
Sd/-
(E.S.INDIRESH)
JUDGE
YAN
CT:GSM
