Karnataka High Court
Prakashgouda S/O. Manohargouda Patil vs Jayshree W/O. Vivek @ Prakash ... on 7 March, 2025
-1-
NC: 2025:KHC-D:4431
RSA No. 5969 of 2013
C/W RSA No. 5961 of 2013
RSA No. 5962 of 2013
AND 1 OTHER
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 7TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 5969 OF 2013 (PAR-)
C/W
REGULAR SECOND APPEAL NO. 5961 OF 2013
REGULAR SECOND APPEAL NO. 5962 OF 2013
REGULAR SECOND APPEAL NO. 5963 OF 2013
IN R.S.A.NO.5969/2013
BETWEEN:
SURESHGOUDA S/O. MANOHARGOUDA PATIL,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O. SHILAVANT SOMAPUR,
TQ: SHIGGAON, DIST: HAVERI-581110.
...APPELLANT
(BY SRI. S.N. BANAKAR, ADVOCATE)
AND:
MOHANKUMAR
B SHELAR
1. SMT. JAYASHREE W/O. VIVEK @ PRAKASH SHRIVASTAVA
Digitally signed by
MOHANKUMAR B
SINCE DECEASED BY HER LR'S.
SHELAR
Location: HIGH
COURT OF
KARNATAKA
DHARWAD BENCH 1(A) SRI. VIVEK @ PRAKASH SHRIVASTHAVA,
AGE: 62 YEARS, OCC: RETIRED EMPLOYEE,
R/O. G.B.J. 270, 9TH CROSS, HAL QUARTERS,
BENGALURU-560037.
1(B) SRI. SHUBHAM S/O. VIVEK @ PRAKASH SHRIVASTHAVA,
AGE: 26 YEARS, OCC: PRIVATE SERVICE,
R/O. G.B.J. 270, 9TH CROSS, HAL QUARTERS,
BENGALURU-560037.
-2-
NC: 2025:KHC-D:4431
RSA No. 5969 of 2013
C/W RSA No. 5961 of 2013
RSA No. 5962 of 2013
AND 1 OTHER
2. PRAKASH @ PRAKASHGOUDA
S/O. MANOHAR @ MANOPHARGOUDA PATIL,
SINCE DECEASED BY HIS LR'S.
2(A) SMT. SUNITA W/O. PRAKASHGOUDA PATIL
AGE: 60 YEARS, OCC: HOUSEWIFE,
R/O. SHILAVANT SOMAPUR,
TQ: SHIGGAON, DIST: HAVERI-581110.
2(B) SMT. SHASHIKALA W/O. SOMANNA UPPIN,
AGE: 38 YEARS, OCC: TEACHER,
R/O. NEAR BUS DEPOT, ISHWAR NAGAR, LAXMESHWAR,
TQ: SHIRAHATTI, DIST: GADAG-582116.
2(C) CHANDRAGOUDA S/O. PRAKASHGOUDA PATIL,
AGE: 36 YEARS, OCC: AGRICULTURIST,
R/O. SHILAVANT SOMAPUR,
TQ: SHIGGAON, DIST: HAVERI-581110.
2(D) SMT. MADHU W/O. PRAKASH BURADIKATTI,
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
R/O. KURABAGERI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
2(E) SMT. JYOTI W/O. SIDDHU KURUBAGONDA,
AGE: 32 YEARS, OCC: HOUSEHOLD WORK,
R/O. KARAJAGI, TQ: & DIST: HAVERI-581112.
2(F) RANGANAGOUDA S/O. PRAKASHGOUDA PATIL,
AGE: 30 YEARS, OCC: AGRICULTURIST,
R/O. SHILAVANT SOMAPUR,
TQ: SHIGGAON, DIST: HAVERI-581110.
3. SMT. LAXMI W/O. VEERUPAXGOUDA PATIL ,
AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
R/O. PATTAPUR, TQ: MANVI,
DIST: RAICHUR-584101.
-3-
NC: 2025:KHC-D:4431
RSA No. 5969 of 2013
C/W RSA No. 5961 of 2013
RSA No. 5962 of 2013
AND 1 OTHER
4. SMT. SHOBHA W/O. HARISH MARADDI,
AGE: 57 YEARS, OCC: SERVICE,
R/O. J.S.S. HIGH SCHOOL,
JAI NAGAR, BANGALORE-560011.
...RESPONDENTS
(BY SRI. A.R. PATIL, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC TO SET ASIDE THE JUDGMENT & DECREE PASSED IN
R.A.NO.72/2010 PASSED BY THE DISTRICT JUDGE, HAVERI DATED
11.09.2010, SO ALSO THE JUDGMENT AND DECREE PASSED IN
O.S.NO.54/2003 DATED: 01.04.2010 PASSED BY THE ADDITIONAL
CIVIL JUDGE (SR.DN), HAVERI AND TO DISMISS THE SUIT IN
O.S.NO.54/2003, AND TO ALLOW R.A.NO.72/2010 BY ALLOWING
REGULAR SECOND APPEAL WITH COST THROUGHOUT.
IN R.S.A. NO. 5961/2013
BETWEEN:
1. PRAKASHGOUDA S/O. MANOHARGOUDA PATIL,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O. SHILAVANTASOMAPUR (S. SOMAPUR),
TQ: SHIGGAON, DIST: HAVERI-5812055.
1(A) SMT. SUNITA W/O. PRAKASHGOUDA PATIL
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
1(B) SMT. SHASHIKALA W/O. SOMANNA UPPIN,
AGE: 38 YEARS, OCC: TEACHER,
R/O. NEAR BUS DEPOT, ISHWAR NAGAR,
LAXMESHWAR, DIST: GADAG.
1(C) CHANDRAGOUDA S/O. PRAKASHGOUDA PATIL,
AGE: 36 YEARS, OCC: AGRICULTURE,
1(D) SMT. MADHU W/O. PRAKASH BURADIKATTI,
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
-4-
NC: 2025:KHC-D:4431
RSA No. 5969 of 2013
C/W RSA No. 5961 of 2013
RSA No. 5962 of 2013
AND 1 OTHER
R/O. KURABGIRI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
1(E) SMT. JYOTI W/O. SIDDHU KUEABGONDA,
AGE: 32 YEARS, OCC: HOUSEWIFE,
R/O. KARAJAGI, TQ: DIST: HAVERI-58.
1(F) RANGANGOUDA S/O. PRAKASHGOUDA PATIL,
AGE: 30 YEARS, OCC: AGRICULTURE,
...APPELLANTS
(BY SRI. N.P. VIVEKMEHTA, ADVOCATE)
AND:
1. SMT. JAYSHREE W/O. VIVEK @ PRAKASH SRIVASTAVA,
AGE: 42 YEARS,OCC: SERVICE
R/O. G.B.J. 270, 9TH CROSS, HAL QUARTERS,
BENGALURU-37.
FOLLOWING ARE HER LR'S 1A AND 1B
BROUGHT ON RECORD AS PER ORDER
1A. VIVEK @ PRAKASH SHRIVASTHAVA, (HUSBAND)
AGE: MAJOR, OCC: SERVICE,
1B. SHUBHAM S/O. VIVEK @ PRAKASH SHRIVASTHAVA,(SON)
AGE: MAHIRM, OCC: SERVICE,
BOTH ARE R/O. NO.477, 10TH MAIN, 6TH STAGE,
BEML LAYOUT, THUBARHALLI, WHITEFIELD,
BANGALORE-560066.
2. SURESHGOUDA S/O. MANOHARGOUDA PATIL,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O. SHILAVANTASOMAPUR (S. SOMAPUR),
TQ: SHIGGAON, DIST: HAVERI-5812055.
3. SMT. LAXMI W/O. VEERUPAXGOUDA PATIL ,
AGE: 57 YEARS, OCC: SERVICE,
R/O. PATTAPUR, TQ: MANVI,
DIST: RAICHUR-584123.
-5-
NC: 2025:KHC-D:4431
RSA No. 5969 of 2013
C/W RSA No. 5961 of 2013
RSA No. 5962 of 2013
AND 1 OTHER
4. SMT. SHOBHA W/O. HARISH MARADDI,
AGE: 47 YEARS, OCC: SERVICE,
R/O. J.S.S. HIGH SCHOOL,
SARASWATIPURAM, MYSORE-570001.
5. SMT. NIRMALA W/O. CHANNABASAGOUDA PATIL,
AGE: 53 YEARS, OCC: HOUSEHOLD WORK,
R/O. VIJAYANAGAR, HIREKERUR,
DIST: HAVERI-581111.
6. VIJAYANAGOUDA S/O. CHANNABASAGOUDA PATIL,
AGE: 25 YEARS, OCC: STUDENT,
R/O. VIJAYANAGAR, HIREKERUR,
DIST: HAVERI-581111.
7. PRAVEENAGOUDA S/O. CHANNABASAGOUDA PATIL,
AGE: 22 YEARS, OCC: STUDENT,
R/O. VIJAYANAGAR, HIREKERUR,
DIST: HAVERI-581111.
...RESPONDENTS
(BY SRI. A.R. PATIL, ADVCOATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC TO SET ASIDE THE JUDGMENT & DECREE OF THE COURT
OF DISTRICT JUDGE, HAVERI DATED 11.09.2013 PASSED IN
R.A.NO.68/2010 AND THE JUDGMENT AND DECREE OF COURT OF
THE ADDITIONAL CIVIL JUDGE (SR.DN), HAVERI DATED 01.04.2010
PASSED IN O.S.NO.120/99, AND DISMISS THE SUIT BY ALLOWING
THIS APPEAL.
IN R.S.A. NO. 5962/2013
BETWEEN:
1. PRAKASHGOUDA S/O. MANOHARGOUDA PATIL,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O. SHILAVANTASOMAPUR (S. SOMAPUR),
-6-
NC: 2025:KHC-D:4431
RSA No. 5969 of 2013
C/W RSA No. 5961 of 2013
RSA No. 5962 of 2013
AND 1 OTHER
TQ: SHIGGAON, DIST: HAVERI-5812055.
1(A) SMT. SUNITA W/O. PRAKASHGOUDA PATIL
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
1(B) SMT. SHASHIKALA W/O. SOMANNA UPPIN,
AGE: 38 YEARS, OCC: TEACHER,
R/O. NEAR BUS DEPOT, ISHAWAR NAGAR,
LAXMESHWAR, DIST: GADAG.
1(C) CHANDRAGOUDA S/O. PRAKASHGOUDA PATIL,
AGE: 36 YEARS, OCC: AGRICULTURE,
1(D) SMT. MADHU W/O. PRAKASH BURADIKATTI,
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
R/O. KURABGIRI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
1(E) SMT. JYOTI W/O. SIDDHU KUEABGONDA,
AGE: 32 YEARS, OCC: HOUSEWIFE,
R/O. KARAJAGI, TQ: DIST: HAVERI-58.
1(F) RANGANGOUDA S/O. PRAKASHGOUDA PATIL,
AGE: 30 YEARS, OCC: AGRICULTURE,
...APPELLANTS
(BY SRI. N.P. VIVEKMEHTA, ADVOCATE)
AND:
1. SMT. JAYSHREE W/O. VIVEK @ PRAKASH SRIVASTAVA,
AGE: 42 YEARS,OCC: SERVICE
R/O. G.B.J. 270, 9TH CROSS, HAL QUARTERS,
BENGALURU-37.
FOLLOWING ARE HER LR'S 1A AND 1B
BROUGHT ON RECORD AS PER ORDER
1A. VIVEK @ PRAKASH SHRIVASTHAVA, (HUSBAND)
AGE: MAJOR, OCC: SERVICE,
1B. SHUBHAM S/O. VIVEK @ PRAKASH SHRIVASTHAVA,(SON)
-7-
NC: 2025:KHC-D:4431
RSA No. 5969 of 2013
C/W RSA No. 5961 of 2013
RSA No. 5962 of 2013
AND 1 OTHER
AGE: MAHIRM, OCC: SERVICE,
BOTH ARE R/O. NO.477, 10TH MAIN, 6TH STAGE,
BEML LAYOUT, THUBARHALLI, WHITEFIELD,
BANGALORE-560066.
2. SURESHGOUDA S/O. MANOHARGOUDA PATIL,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O. SHILAVANTASOMAPUR (S. SOMAPUR),
TQ: SHIGGAON, DIST: HAVERI-5812055.
3. SMT. LAXMI W/O. VEERUPAXGOUDA PATIL ,
AGE: 57 YEARS, OCC: SERVICE,
R/O. PATTPUR, TQ: MANAVI,
DIST: RAICHUR-584123.
4. SMT. SHOBHA W/O. HARISH MARADDI,
AGE: 47 YEARS, OCC: SERVICE,
R/O. J.S.S. HIGH SCHOOL,
SARASWATIPURAM, MYSORE-570001.
5. SMT. NIRMALA W/O. CHANNABASANGOUDA PATIL,
AGE: 53 YEARS, OCC: HOUSE HOLDWORK,
R/O. VIJAYANAGAR, HIREKERUR,
DIST: HAVERI-581111.
6. VIJAYANAGOUDA S/O. CHANNABASANGOUDA PATIL,
AGE: 25 YEARS, OCC: STUDENT,
R/O. VIJAYANAGAR, HIREKERUR,
DIST: HAVERI-581111.
7. PRAVEENAGOUDA S/O. CHANNABASANGOUDA PATIL,
AGE: 22 YEARS, OCC: STUDENT,
R/O. VIJAYANAGAR, HIREKERUR,
DIST: HAVERI-581111.
...RESPONDENTS
(BY SRI. A.R. PATIL, ADVCOATE)
-8-
NC: 2025:KHC-D:4431
RSA No. 5969 of 2013
C/W RSA No. 5961 of 2013
RSA No. 5962 of 2013
AND 1 OTHER
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC TO SET ASIDE THE JUDGMENT & DECREE OF THE COURT
OF DISTRICT JUDGE, HAVERI DATED 11.09.2013 PASSED IN
R.A.NO.66/2010 AND THE JUDGMENT AND DECREE OF COURT OF
THE ADDITIONAL CIVIL JUDGE (SR.DN), HAVERI DATED 01.04.2010
PASSED IN O.S.NO.120/99, AND DISMISS THE SUIT BY ALLOWING
THIS APPEAL.
IN R.S.A. NO. 5963/2013
BETWEEN:
1. PRAKASHGOUDA S/O. MANOHARGOUDA PATIL,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O. SHILAVANTASOMAPUR (S. SOMAPUR),
TQ: SHIGGAON, DIST: HAVERI-5812055.
(DIED ON 19/03/2021)
FOLLOWING ARE HIS LR'S A1A TO A1F
AS PER ORDER DATED 5/7/2023
1(A) SMT. SUNITA W/O. PRAKASHGOUDA PATIL
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
1(B) SMT. SHASHIKALA W/O. SOMANNA UPPIN,
AGE: 38 YEARS, OCC: TEACHER,
R/O. NEAR BUS DEPOT, ISHAWAR NAGAR,
LAKSHEMESHWAR, DIST: GADAG.
1(C) CHANDRAGOUDA S/O. PRAKASHGOUDA PATIL,
AGE: 36 YEARS, OCC: AGRICULTURE,
1(D) SMT. MADHU W/O. PRAKASH BURADIKATTI,
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
R/O. KURABGIRI, TQ: RANEBENNUR,
DIST: HAVERI-581115.
1(E) SMT. JYOTI W/O. SIDDHU KUEABGONDA,
-9-
NC: 2025:KHC-D:4431
RSA No. 5969 of 2013
C/W RSA No. 5961 of 2013
RSA No. 5962 of 2013
AND 1 OTHER
AGE: 32 YEARS, OCC: HOUSEWIFE,
R/O. KARAJAGI, TQ: DIST: HAVERI-58.
1(F) RANGANGOUDA S/O. PRAKASHGOUDA PATIL,
AGE: 30 YEARS, OCC: AGRICULTURE,
...APPELLANTS
(BY SRI. N.P. VIVEKMEHTA, ADVOCATE)
AND:
1. SURESHGOUDA S/O. MANOHARGOUDA PATIL,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O. SHILAVANTASOMAPUR (S. SOMAPUR),
TQ: SHIGGAON, DIST: HAVERI-5812055.
2. SMT. JAYSHREE W/O. VIVEK @ PRAKASH SRIVASTAVA,
AGE: 42 YEARS,OCC: SERVICE
R/O. G.B.J. 270, 9TH CROSS, HAL QUARTERS,
BENGALURU-37.
(DIED ON 26/05/2021)
FOLLOWING ARE HER LR'S 2A AND 2B
BROUGHT ON RECORD AS PER ORDER
DATED 05/07/2023.
2A. VIVEK @ PRAKASH SHRIVASTHAVA, (HUSBAND)
AGE: MAJOR, OCC: SERVICE,
2B. SHUBHAM S/O. VIVEK @ PRAKASH SHRIVASTHAVA,(SON)
AGE: MAHIRM, OCC: SERVICE,
BOTH ARE R/O. NO.477, 10TH MAIN, 6TH STAGE,
BEML LAYOUT, THUBARHALLI, WHITEFIELD,
BANGALORE-560066.
3. SMT. LAXMI W/O. VEERUPAXGOUDA PATIL ,
AGE: 57 YEARS, OCC: SERVICE,
R/O. PATTPUR, TQ: MANAVI,
DIST: RAICHUR-584123.
4. SMT. SHOBHA W/O. HARISH MARADDI,
- 10 -
NC: 2025:KHC-D:4431
RSA No. 5969 of 2013
C/W RSA No. 5961 of 2013
RSA No. 5962 of 2013
AND 1 OTHER
AGE: 47 YEARS, OCC: SERVICE,
R/O. J.S.S. HIGH SCHOOL,
SARASWATIPURAM, MYSORE-570001.
...RESPONDENTS
(BY SRI. A.R. PATIL, ADVCOATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC TO SET ASIDE THE JUDGMENT & DECREE OF THE COURT
OF DISTRICT JUDGE, HAVERI DATED 11.09.2013 PASSED IN
R.A.NO.67/2010 AND THE JUDGMENT AND DECREE OF COURT OF
THE ADDITIONAL CIVIL JUDGE (SR.DN), HAVERI DATED 01.04.2010
PASSED IN O.S.NO.54/2003, AND DECREE THE SUIT BY ALLOWING
THIS APPEAL.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
These appeals are arising out of the judgment and decree
dated 11.09.2013 in R.A.No.66/2010, 67/2010, 68/2010 and
72/2010 on the file of the District Judge Haveri allowing the
appeal in R.A.No.68/2010 and dismissing the appeal in
R.A.No.66/2010, R.A.No.67/2010 and R.A.No.72/2010 by
modifying the shares in the judgment and decree dated
01.04.2010 in O.S.No.120/1999 and O.S.No.54/2013 on the
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NC: 2025:KHC-D:4431
AND 1 OTHER
file of the Additional Civil Judge (Sr.Dn), Haveri decreeing the
suit in part.
2. For the sake of convenience, parties are referred to
as per their rank in O.S.No.120/1999.
3. It is the case of the plaintiff that the plaintiff and
defendants 2 to 5 are the children of Manoharagouda
(defendant No.1), who died on 24.01.2005, and Smt.Savitri,
who died during 1976. It is the case of the plaintiff that the
plaintiff and defendants constitute Hindu Joint Family and the
schedule properties are the joint family properties of the
plaintiff and defendants and accordingly, the plaintiff has filed
O.S.No.120/1999 seeking partition and separate possession in
respect of the suit schedule properties. Defendant No.2 in
O.S.No.120/1999 (Prakashgouda) has filed separate suit in
O.S.No.54/2003 seeking relief of partition and separate
possession in respect of the suit schedule properties.
3.1. After service of notice, the defendants entered
appearance and filed detailed written statement admitting the
relationship between the parties. It is the case of the defendant
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AND 1 OTHER
No.1-Manoharagouda and defendant No.3-Suresh Gouda that
the suit item No.1 and 2 of the schedule properties are self-
acquired properties of Manoharagouda and as such, the said
Manoharagouda has executed gift deed dated 18.01.2003 in
favour of the defendant No.3 and therefore, it is the case of the
defendant No.1 and 3 that the plaintiffs are not entitled for
share in item No.1 and 2 of the schedule properties.
Accordingly, the defendants have sought for dismissal of the
suit.
3.2. The Trial Court based on the pleadings on record,
has formulated issues for consideration. The Trial Court has
clubbed both the suits viz., O.S.No.120/1999 and
O.S.No.54/2003 and common evidence was recorded. The
plaintiff in O.S.No.120/1999 was examined as PW1 and got
marked 16 documents and same were marked as Ex.P1 to
Ex.P16. The defendants in O.S.No.120/1999 have examined
two witnesses as DW1 and DW2 and produced 21 documents,
which were marked as Ex.D1 to Ex.D21. The Trial Court, after
considering the material on record, by its judgment and decree
dated 01.04.2010 partly decreed the suit holding that the
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AND 1 OTHER
plaintiff in O.S.No.120/1999 is entitled for 1/20th share in
Sl.No.1 to 14 of schedule 'A' properties and Sl.No.1 and 2 of
schedule 'B' properties. The suit in O.S.No.54/2003 was partly
decreed holding that the plaintiff is entitled for 3/10th share in
Sl.No.1 to 14 of the suit schedule 'A' properties and Sl.No.1 and
2 of the suit schedule 'B' properties in O.S.No.54/2003. Feeling
aggrieved by the judgment and decree passed by the Trial
Court, Prakashagouda (defendant No.2) in O.S.No.120/1999
has filed R.A.No.66/2010 and R.A.No.67/2010 challenging the
judgment and decree in O.S.No.120/1999 and O.S.No.54/2003.
The plaintiff in O.S.No.120/1999 has filed R.A.No.68/2010
challenging the judgment and decree in O.S.No.120/1999.
Defendant No.3 (Sureshgouda) has filed R.A.No.72/2010
challenging the judgment and decree in O.S.No.120/1999 and
O.S.No.54/2003. The respondents therein have contested the
matter.
3.3. The First Appellate Court, after considering the
material on record, by its judgment and decree dated
11.09.2013 allowed R.A.No.68/2010 in part and dismissed
R.A.No.66/2010, 67/2010 and 72/2010 holding that the
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NC: 2025:KHC-D:4431
AND 1 OTHER
children of Manoharagouda are entitled for 1/5th share each in
the suit schedule properties. Feeling aggrieved by the same,
defendant No.2-Prakashagouda has preferred RSA
No.5961/2013, RSA No.5962/2010 and RSA No.5963/2010 and
the defendant No.3-Sureshgouda has preferred RSA
No.5969/2013 and these appeals are listed for admission
today.
4. I have heard Sri.S.N.Banakar, learned counsel for
the appellant in RSA No.5969/2013, Sri. N.P.Vivek Mehta,
learned counsel for the appellant in RSA No.5961/2013, RSA
No.5962/2013 and RSA No.5963/2013 and Sri. A.R.Patil,
learned counsel for respondents 1 to 4.
5. Sri. S. N. Banakar, learned counsel appearing for
the appellant-Sureshgouda in RSA No.5969/2013 submitted
that both the Courts below have committed an error in not
considering the fact that the suit item No.1 and 2 of the suit
properties are the self-acquired properties of Manoharagouda,
which was gifted in favour of defendant No.3-Sureshgouda as
per the gift deed dated 18.01.2003 and as such, the First
Appellate Court has committed an error in not considering the
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NC: 2025:KHC-D:4431
AND 1 OTHER
alienation of the item No.1 and 2 of the schedule properties as
per the gift deed mentioned above and therefore, he sought for
interference of this Court.
6. Sri. N.P.Vivek Mehta, learned counsel appearing for
the appellant, has invited the attention of this court to the
genealogy produced in the memorandum of appeal and he
contended that the First Appellate Court has committed an
error in granting 1/5th share each in the suit schedule
properties despite the fact that the plaintiff in O.S.No.120/1999
has sought for lesser share in the suit schedule properties i.e.
7/36th share in the suit schedule properties and therefore, the
Trial Court and the First Appellate Court ought to have
restricted the relief insofar as the claim made by the plaintiff in
O.S.No.120/1999 and therefore, he contended that both the
Courts below have committed an error in not considering the
evidence on record, particularly, Ex.D1 to Ex.D4, which clearly
establish the fact that Prakashgouda-defendant No.2 is having
absolute right over the suit schedule properties and
accordingly, he sought for interference of this Court.
- 16 -
NC: 2025:KHC-D:4431
AND 1 OTHER
7. Per contra, learned counsel appearing for the
respondent submitted that since Manoharagouda died on
24.01.2005 and his wife Savitri, predeceased to Manohargouda
and therefore, as they had five children, it is contended by the
learned counsel appearing for the respondent-plaintiff that all
the five children are entitled for equitable share in the suit
schedule properties and accordingly, sought for dismissal of the
appeals.
8. In the light of the submissions made by the learned
counsel appearing for the parties, I have carefully examined
the finding recorded by both the Courts below. In order to
understand the relationship between the parties, the genealogy
of the parties is reproduced as under:
Manoharagouda
(D1) died on 24.01.2005
Savitri (wife)
died in 1976
Prakashgouda Sureshgouda Laxmi Shobha Jayashree
D2 D3 D4 D6 Plaintiff
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AND 1 OTHER
9. Perusal of the genealogy would indicate that
Manoharagouda(defendant No.1) and Smt.Savitri had five
children viz., Prakashagouda (defendant No.2),
Sureshagouda(defendant No.3, Laxmi (defendant No.4),
Shobha (defendant No.5) and Jayashree (plaintiff). It is not in
dispute that the defendant No.1-Manoharagouda was given in
adoption to one Sri.Ranganagouda and Smt.Gangamma and
therefore, the suit schedule properties are belonging to the
Ranganagouda and therefore, those properties have to be
considered as ancestral properties insofar as children of
Manohargouda is concerned. It is also forthcoming from the
finding recorded by both the Courts below that the defendant
No.1 had acquired two items of schedule properties i.e. item
No.1 and 2 as per the registered sale deeds dated 31.05.1973
and dated 03.07.1990. However, perusal of the same would
indicate that the properties have been acquired by defendant
No.1 through the nucleus of the joint family properties and
therefore, these two items of the schedule properties though
acquired by defendant No.1 as per the registered sale deeds
referred to above, however, same has to be considered as joint
family properties of plaintiff and defendants. It is also to be
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noted that the aforementioned property was gifted by
defendant No.1 in favour of Sureshgouda (defendant No.3) as
per the gift deed dated 18.01.2003 (Ex.D5). Perusal of the
finding recorded by the First Appellate Court would indicate that
the gift deed dated 18.01.2003 though produced and marked
before the Trial Court, however, same was not proved by
defendant No.3 in a manner known to law by examining the
witnesses/attesters to the said deed. Therefore, the finding
recorded by the First Appellate Court requires to be confirmed
in the light of the observations made by the First Appellate
Court at paragraph 28. In that view of the matter, taking into
consideration the declaration of law made by the Hon'ble
Supreme Court in the case of Vineeta Sharma and Rakesh
Sharma, reported in AIR 2020 SC 3717 all the children of
Sri.Manoharagouda, who died on 24.01.2005 and Smt. Savitri
i.e., the plaintiff in O.S.No.120/1999 and defendants 2 to 5 are
entitled to 1/5th share each in the suit schedule properties. In
that view of the matter, taking into consideration the finding
recorded by the First Appellate Court, I am of the view that the
First Appellate Court, after re-appreciating the material on
record and applying the settled principles of law, has rightly
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arrived at a conclusion that all the children of Manoharagouda
are entitled for 1/5th share each in the schedule properties and
in that view of the matter, I do not find any merit in the
appeals. Accordingly, the appeals are dismissed as the
appellants herein have not made out a case for interference in
this appeal under Section 100 of C.P.C. by formulating
substantial question of law. Accordingly, the appeals are
dismissed.
10. In view of disposal of appeals, pending interlocutory
applications, if any, do not survive for consideration and are
disposed of accordingly.
Sd/-
(E.S.INDIRESH)
JUDGE
YAN
CT-MCK
