Hanamappa Hanamantappa Yallappa ... vs Pundalik Hanamappa Hanamantappa ...
2025 Latest Caselaw 367 Kant

Karnataka High Court

Hanamappa Hanamantappa Yallappa ... vs Pundalik Hanamappa Hanamantappa ... on 4 June, 2025

Author: M.G.S. Kamal

Bench: M.G.S. Kamal

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                                                        RSA No. 1445 of 2006


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                             IN THE HIGH COURT OF KARNATAKA,
                                      DHARWAD BENCH

                            DATED THIS THE 4TH DAY OF JUNE 2025

                                            BEFORE

                            THE HON'BLE MR. JUSTICE M.G.S. KAMAL

                    REGULAR SECOND APPEAL NO.1445 OF 2006 (PAR)

                   BETWEEN:

                   1.   HANAMAPPA HANAMANTAPPA
                        YALLAPPA BIRSHIDDI,
                        AGE: 44 YEARS, OCC: AGRIL,
                        R/O: GHATAKANUR, TQ: RAMDURG,
                        DIST: BELAGAVI - 590 023.

                   2.   VENKAPPA YALLAPPA BIRSHIDDI,
                        AGE:47 YEARS, OCC: AGRIL.,
                        R/O: GHATAKANUR, TQ: RAMDURG,
                        DIST: BELAGAVI - 23.
                                                             ... APPELLANTS
                   (BY SMT. SURABHI KULKARNI, ADVOCATE FOR A2)

Digitally signed   AND:
by SAROJA
HANGARAKI
Location: High     1.   PUNDALIK HANAMAPPA
Court of
Karnataka,              HANAMANTAPPA BIRSHIDDI,
Dharwad Bench,
Dharwad                 AGE:MAJOR, OCC: AGRIL.,
                        R/O: GHATAKANUR,
                        TQ:RAMDURG,
                        DIST: BELAGAVI - 590 023.

                   2.   SHIVAKKA W/O. RAMAPPA BIRASIDDI,
                        AGE: 76 YERARS, OCC: AGRIL.,
                        R/O: GHATAKANUR TQ:RAMDURG,
                        DIST:BELGAUM NOW AT HANCHINAL
                        TQ: SAUNDATTI, DIST: BELAGAVI - 23.
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                                        NC: 2025:KHC-D:7317
                                    RSA No. 1445 of 2006


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3.   SMT. YANKAWWA
     W/O. MARITAMAPPA JOTENNAVAR,
     AGE:MAJOR, OCC: AGRICULTURE,
     R/O: KAGADAL, TQ:SAUNDATI,
     NOW AT GHATAKANUR, TQ: RAMDURG,
     DIST: BELAGAVI - 23.

4.   YANKAPPA RAMAPPA BIRASIDDI,
     AGE: 53 YEARS, OCC: AGRICULTURE,
     R/O: GHATAKANUR, TQ: RAMDURG,
     DIST:BELAGAVI - 23.

5.   HANAMAPPA RAMAPPA BIRASIDDI,
     AGE:48 YEARS, OCC: AGRICULTURE,
     R/O: GHATAKANUR, TQ: RAMDURG,
     DIST:BELAGAVI - 23.

6.   FAKIRAWWA D/O. YALLAPPA BIRASIDDI,
     AGE: 47 YEARS,
     OCC: HOUSEHOLD WORK,
     R/O: GHATAKANUR, TQ: RAMDURG,
     DIST: BELAGAVI - 23.
                                            ... RESPONDENTS
(BY SRI. GIRISH V. BHAT, ADVOCATE FOR R1;
R2 TO R6 ARE NOTICE TO HELD SUFFICIENT)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 18.02.2006
IN RA NO.61/2004 ON THE FILE OF THE CIVIL JUDGE (SR.DN),
SAUNDATTI AND THE JUDGMENT AND DECREE DATED
28.09.2004 IN OS NO.109/1993 ON THE FILE OF THE CIVIL
JUDGE (JR.DVN.) RAMDURG, OS NO.109/1993 BE DISMISSED
AND THIS APPEAL BE ALLOWED WITH COSTS THROUGHOUT
AND ETC.,

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                             RSA No. 1445 of 2006


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                  ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

1. This appeal is by defendant Nos.1 and 2 being

aggrieved by judgment and decree, dated 28.09.2004

passed in O.S. No. 109/1993 on the file of the Civil Judge

(Jr. Dn.) Ramdurg (for short "the trial Court") which is

confirmed by the judgment and order dated 18.02.2006

passed in R.A. No.61/2004 on the file of the Civil Judge

Senior Division, Saundatti (for short "the First Appellate

Court").

2. The above suit is filed by the respondent No.1

herein as plaintiff No.2 along with his mother

Smt.Yellamma, as plaintiff No.1, who died during the

pendency of the suit, seeking partition and separate

possession of their 8/27th share in the suit schedule

property and for the relief of permanent injunction against

defendant Nos.1 to 3 restraining them from alienating the

suit property by metes and bounds.

3. The plaint schedule properties consist of eight

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items of landed properties described as schedule A to the

plaint. The house property is described as schedule B to the

plaint and certain movable properties are described as

schedule C to the plaint.

4. The case of the plaintiffs is that, one Yellappa

Yankappa Birasiddi, the propositus of the family, was the

owner of the suit properties, who passed away on

29.08.1983 leaving behind his two sons namely defendant

No.1 and defendant No.2 and a daughter, defendant No.3.

Smt. Satyavva wife of said Yellappa Yankappa Birasiddi

predeceased him. Plaintiff No.1 is the son born to plaintiff

No.2 and defendant No.1. Defendant No.3 was managing

the affairs of the family of the plaintiffs as well as defendant

Nos.1 to 3. Defendant No.1 was not aware of the worldly

affairs. With an intention to deny and deprive the share of

plaintiffs, defendant Nos.2 and 3 were causing hardship to

the plaintiffs, constraining them to file the above suit for

partition and for separate possession.

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5. Defendant Nos.1 to 3 filed written statement

denying the claim of the plaintiffs that the suit property

being in the joint family properties; also denied that plaintiff

No.2 being the legally wedded wife of defendant No.1 and

plaintiff No.1 is the son born to plaintiff No.2 and defendant

No.1. The claim of the plaintiffs being the members of joint

family and being entitled for the share is also denied.

Accordingly, sought for dismissal of the suit.

6. Based on the pleadings, the trial Court framed

the following issues for its consideration:

ISSUES

1. Whether the plffs. prove that the suit properties were of the ownership of deceased Yallappa Yenkappa Birasiddi, who expired on 29-8-1993 at Ghatakanur and further plaintiffs and defts 1,2 and 3 are the legal heirs to deceased Yallappa?

2. Whether the genealogy shown by the plffs. in para 4 of the plaint is genuine one?

3. Whether the plffs. further prove that plffs. and defts 1 to 3 constitute a joint Hindu undivided family and the suit properties shown in schedule A & B are the joint Hindu ancestral properties? and whether they are in joint possession of these properties?

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4. Whether the plffs. are entitled to 8/27th share in the suit schedule properties, if equitable partition is effected by metes and bounds?

5. Whether the defts prove that there is no cause of action for the suit?

6. What decree or order?

ADDL. ISSUES

1. Whether the plff. proves that plff - 1 is the son of deft-1 and plff-2?

2. Whether the plff. further proves that the plff.No.2 is the legally wedded wife of deft-1?

7. Originally, one Dyamappa Fakirappa

Satyappanavar acting as next friend of plaintiff No.1 had

examined himself as PW1. On plaintiff No.1 attaining the

age of majority, he examined himself as PW3. In addition,

one Mallappa Yallappa Budhihal has been examined as PW2.

12 documents have been marked on behalf of the plaintiffs

as Exs.P1 to P12. Defendant Nos.2 and 1 have been

examined as DW1 and DW3 respectively and got examined

one witness as DW2 and exhibited 6 documents marked as

Exs.D1 to D6. On appreciation of evidence, the trial Court

answered issue Nos.1 to 3 & 5 and additional issue Nos.1

and 2 in the affirmative and consequently while answering

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issue No.4 held that the plaintiffs are entitled for 2/9th share

in item Nos.1 to 7 of schedule A and B properties.

8. Being aggrieved defendant Nos.1 and 2 preferred

regular appeal in R.A. No.61/2004 before the First Appellate

Court. The First Appellate Court framed the following points

for its consideration:

1. Whether the Judgment and decree under appeal are contrary to law and evidence on record?

2. Whether there are any grounds for this court to interfere in the judgment and decree under appeal?

3. What Decree or order?

9. On re-appreciation, answered the same in the

negative and consequently dismissed the appeal confirming

the judgment and decree passed by the trial Court.

10. Being aggrieved, the present appeal by

defendant Nos.1 and 2. Defendant No.1 is stated to have

passed away during the pendency of this appeal in the year

2021.

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11. This Court by order dated 17.02.2009 admitted

the above appeal for consideration of the following

substantial questions of law:

i) Whether the nature of consideration of the evidence by the trial Court as well as the Lower Appellate Court had led to a perverse finding with regard to the conclusion that the plaintiff No.1 is the son of the 1st defendant and plaintiff No.2 is the wife of the 1st defendant?

ii) Whether the rejection of the application filed by defendant No.1 before the trial Court in I.A. Nos.11, 13 and 14 had led to the wrong conclusion of the trial Court with regard to the finding of paternity of the 1st defendant with that of the 1st plantiff?

iii) Whether in such circumstances, the entire consideration and the ultimate carving out of the share has been wrongly done by the Courts below?

12. Learned counsel appearing for the appellant

reiterating the grounds urged in the memorandum of appeal

vehemently submitted that the plaintiffs have not proved

the fact of plaintiff No.2 being the legally wedded wife of

defendant No.1, without leading any cogent and acceptable

evidence. No witnesses have been examined to establish

the factum of marriage as required under law. The

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requirement of continuous living together as husband and

wife is also not established. Since the requirement of

marriage not having been established satisfactorily, the

claim of the plaintiffs being the members of joint family of

defendants and their entitlement to the joint family

properties cannot be countenanced. She further submitted

that though application was filed in I.A. No.11 seeking

necessary orders for the purpose of examination of blood

samples of plaintiff No.1 and defendant No.1 as well as for

the DNA test by a competent Doctor, the same has been

rejected without justifiable cause. She submits that non-

consideration of the aforesaid aspect of the matter go to the

root of the case, resulting in perversity with the judgment

and decree passed by the trial Court, which is confirmed by

the First Appellate Court and the substantial questions of

law framed as above therefore be held in the affirmative in

favour of the appellant and seeks for allowing of the appeal.

13. She further submitted that during the pendency

of the suit, defendant No.1 had executed a Will dated

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16.02.2019, which was registered on 19.02.2019 and this

Court by its order dated 21.08.2023 had remitted the

matter to the trial Court for the limited purpose of

ascertaining whether appellant No.2 / defendant No.2 and

respondent No.6 were the legatees under the said Will

executed by the deceased - defendant No.1. She submits

that the enquiry report has been placed on record before

this Court and appellant No.2 and respondent No.6 have

been held to be the legatees under the said Will. She

submits that since the Will has been executed by defendant

No.1 bequeathing his share in the suit property in favour of

appellant No.2 / defendant No.2 and respondent No.6;

nothing remains to be allotted to the share of plaintiff No.1.

Hence, seeks for allowing of the appeal.

14. Per contra, learned counsel appearing for the

plaitniffs submits that the trial Court and the First Appellate

Court have rightly appreciated the evidence let in by the

plaintiffs including the evidence of PW2, who is none other

than the relative of the parties, who has spoken about the

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existence of relationship of husband and wife between

plaintiff No.2 and defendant No.1 and plaintiff No.1 being

the son of plaintiff No.2 and defendant No.1. He submits

that the requirement of Section 50 of the Evidence Act has

been discharged. The trial Court and the First Appellate

Court have made no mistake in decreeing the suit as sought

for. Learned counsel for the plaitniffs further submits that

defendant No.1 could not have executed a Will in respect of

the joint family properties depriving the legitimate

entitlement of plaintiff No.1.

15. Heard. Perused the records.

16. The dispute is only with regard to the

relationship of plaintiff No.2 being wife of defendant No.1

and plaintiff No.1 being the son of plaintiff No.2 and

defendant No.1. The trial Court which had framed a specific

issue in this regard namely additional issue No.2, at

paragraph Nos.13, 14, 15 & 16 has extensively dealt with

the factual aspect of the relationship of plaintiffs with

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defendant No.1.

17. PW1, one Dyamappa Fakirappa Satteppanavar,

who examined himself as next friend of plaintiff No.1 has

stated that he is the brother of plaintiff No.2 and he has

spoken about the marriage of plaintiff No.2 with defendant

No.1 having been performed about 18 years ago from the

date of his deposition i.e., on 24.05.2000. In addition, PW2

namely Mallappa Yellappa Budihal, who is elderly person of

Gataknur Village has also spoken about the marriage of

plaintiff No.2 having been performed with defendant No.1

about 20 to 22 years ago. The trial Court has taken note of

the fact that both plaintiffs and defendants are residing in

the very same village and they also belong to Kuruba

community, which is the same community of the parties.

The presumption with regard to relationship plaintiff No.2

being the wife of defendant No.1 and plaintiff No.1 born out

of the of said relationship between them thus having been

drawn, the same has not been rebutted by the defendants

by leading any cogent evidence as required under law, is

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the finding by the trial Court and the First Appellate Court.

18. The trial Court and the First Appellate Court have

therefore held that plaintiff No.2 is the legally wedded wife

of defendant No.1 and plaintiff No.1 is the son of the

plaintiff No.2 and defendant No.1 and in the absence of any

irregularity being pointed out in appreciation of the

aforesaid evidence by the trial Court and the First Appellate

Court and the conclusion arrived at by the Courts on the

question of fact, this Court do not find any reason to

interfere and reverse the same. The witnesses, who have

been examined namely PW1 being the relative of plaintiff

No.2 and PW2 being the elderly person in the family as

noted above spoken about the marriage and relationship

between plaintiff No.2 and defendant No.1, which is the

statement / opinion acceptable in terms of Section 50 of the

Evidence Act and also as held by the Apex Court in the case

of Bant Singh and another Vs. Nianjan Singh (Dead)

by L.Rs. and another1 Substantial questions of law Nos.1

(2008) 4 SCC 75

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and 3 raised by this Court are thus answered in the

negative.

19. In the light of the aforesaid finding, the trial

Court and the First Appellate Court have rejected the

applications filed by the appellants / defendants to conduct

test to find out the paternity of plaintiff No.2 with defendant

No.1. Therefore, no error can be found with the rejection of

the applications either. In any case, both plaintiff No.2 and

defendant No.1 having passed away, the circumstances

requiring referring the matter as sought for in the interim

applications would also not arise. Substantial question of

law No.2 is answered accordingly.

20. Learned counsel for the parties at this juncture

submits that the trial Court and the First Appellate Court

had decreed the suit granting 2/9th share on the basis of

the notional partition, that in view of the change of law by

way of amendment to Section 6 of the Hindu Succession

Act, the same may require to be modified.

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21. Admittedly, Yellappa Yankappa Birasiddi was the

propositus in possession and enjoyment of the suit property

being ancestral properties passed away leaving behind

three children namely Venkappa - defendant No.2,

Hanamappa - defendant No.1 and daughter Fakiravva -

defendant No.3 and they would thus be entitled for 1/3rd

share in the suit properties. Since defendant No.1 passed

away leaving behind plaintiff No.1, he would be entitled to

1/3rd share. Thus, the judgment and decree passed by the

trial Court granting 2/9th share is modified and held that

defendant No.2, plaintiff and defendant No.3 would be

entitled to 1/3rd share each in the family properties.

22. At this juncture, learned counsel for the

appellants submits that since defendant No.1 had executed

a Will dated 16.02.2019, which was registered on

19.02.2019, during his life time, liberty be reserved to

defendant Nos.2 and 3 to seek such remedy as may be

available under law. The submission is taken on record.

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23. Defendant Nos.2 and 3 are at liberty to seek

such remedy as is available under law.

24. With the above observations, the appeal is

dismissed.

25. The judgment and decree passed by the trial

Court is confirmed with the modification of shares as noted

above.

Sd/-

(M.G.S. KAMAL) JUDGE VNP/CT-ASC