Karnataka High Court
Smt.Iravva W/O. Basappa Kallur vs Smt. Kamalavva W/O Hanumappa Kodli on 26 March, 2025
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RSA No. 100076 of 2020
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 26TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100076 OF 2020 (PAR-)
BETWEEN:
SMT. IRAWWA W/O. BASAPPA KALLUR,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
R/O: NEAR SOMESHWAR TEMPLE, LAXMESHWAR,
TQ: SHIRAHATTI, DIST: GADAG.
...APPELLANT
(BY SRI. S.S. KOLIWAD, ADVOCATE)
AND:
1. SMT. KAMALAVVA W/O. HANUMAPPA KODLI,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: DONI, TQ: MUNDARAGI, DIST: GADAG.
LATE SHAKUNTALA @ SHIDDAVVA
W/O. ISHWARAPPA RANGAPUR,
SINCE DIED ON 23-11-2024 HIS LR'S
THE HON'BLE HIGH COURT PERMITTED TO
Location:
AMENDMENT CARRIED OUT.
HIGH
MOHANKUMAR COURT OF
B SHELAR KARNATAKA 2(A)
DHARWAD
ISHWARAPPA S/O. BHIMAPPA RANGAPUR,
BENCH AGE: 59 YEARS, OCC: AGRICULTURE WORK,
2(B) PARVATI RANGAPUR W/O. HALESH TAMRAGUNDI,
AGE: 32 YEARS, OCC: HOUSEHOLD WORK,
2(C) POORNIMA D/O. ISHWARAPPA RANGAPUR,
AGE: 25 YEARS, OCC: STUDENT,
ALL ARE RESIDENT OF DONI VILLAGE,
TQ: MUNDARAGI, DIST: GADAG-582101.
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RSA No. 100076 of 2020
3. MALLAPPA S/O. DEVAPPA TIMMAPUR,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: KALLUR, TQ: MUNDARGI,
DIST: GADAG, PHO: 8073782427.
...RESPONDENTS
(BY SRI. HANUMANTHREDDY SAHUKAR, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 READ WITH ORDER XLI RULE 1 OF CPC PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE PASSED BY THE ADDITIONAL
DISTRICT AND SESSIONS JUDGE, GADAG IN R.A.NO.30/2014 DATED
16.12.2017 THEREBY PARTLY ALLOWING THE APPEAL FILED BY THE
RESPONDENTS HEREIN AND SET ASIDE THE JUDGMENT AND
DECREE PASSED BY SENIOR CIVIL JUDGE, GADAG IN O.S.
NO.28/2008 DATED 13.03.2014 AND ALLOW THIS APPEAL WITH
COSTS IN THE INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is preferred by the appellant-plaintiff assailing
the judgment and decree dated 16.12.2017 in R.A.No.30/2014
on the file of the Additional District and Sessions Judge, Gadag
(for short "the First Appellate Court") allowing the appeal in
part and modifying the judgment and decree dated 13.03.2014
in O.S.No.28/2008 on the file of the Additional Senior Civil
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Judge, Gadag (for short "the Trial Court") decreeing the suit of
the plaintiff.
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 plaintiff that, the father of the
plaintiff viz., Bhimappa died on 23.05.1992 leaving behind his
wife-Gurusiddavva (defendant No.1) and children viz., plaintiff
and defendant No.2 and one Smt.Paddavva (mother of
defendant No.3 and 4). It is the case of the plaintiff that the
suit schedule property has to be devolved amongst the children
of her father. Hence, the plaintiff has filed a suit in
O.S.No.28/2008.
3.1. After service of notice, the defendants entered
appearance and filed detailed written statement and took up
specific contention that the plaintiff, defendants and deceased-
Paddavva has filed O.S.No.46/1992 before the Trial Court
seeking declaration and injunction against one Hanamavva
Hosur in respect of suit schedule property therein and the said
suit came to be decreed on 15.04.1995. It is also stated that
the plaintiff is not entitled for suit schedule 1(b) property as
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deceased-Bhimappa has given a Varadi for change of mutation
in respect of the suit schedule 1(b) property and accordingly it
is the case of the defendants that the plaintiff is not entitled for
share in the suit schedule 1(b) property.
3.2. The Trial Court, based on the pleadings, has framed
issues for its consideration. In order to establish their case, the
plaintiff examined two witnesses as PW1 and PW2 and got
marked 8 documents as Ex.P1 to Ex.P8. The defendants have
examined three witnesses as DW1 to DW3 and got marked 34
documents as Ex.D1 to Ex.D34.
3.3. The Trial Court, after considering the material on
record, decreed the suit of the plaintiff holding that the plaintiff,
defendant No.2 and late-Paddavva are entitled for 1/3rd share
each in the suit schedule property. Feeling aggrieved by the
same, the defendant No.2 to 4 have preferred appeal in
R.A.No.30/2014 and the said appeal was resisted by the
plaintiff. The First Appellate Court, after considering the
material on record, by its judgment and decree dated
16.12.2017 allowed the appeal in part holding that the plaintiff
is not entitled for share in suit schedule 1(b) property and
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feeling aggrieved by the same, the plaintiff has filed this
appeal.
4. This Court vide order dated 13.03.2023 formulated
the following substantial question of law:
"Whether first appellate Court was justified in
holding that defendants have proved that
deceased Bhimappa had relinquished his rights in
favour of defendant No.2 and deceased Paddavva
in respect of suit item 1(b) property and as such
defendant No.2 and LR's of deceased Paddavva
are only entitled for ½ share each in item (b)
property?"
5. I have heard Sri. S. S. Koliwad, learned counsel
appearing for the appellant and Sri. Hanumanthreddy Sahukar,
learned counsel appearing for the respondents.
6. Sri. S. S. Koliwad, the learned counsel for the
appellant, contended that the First Appellate Court has
committed an error in rejecting the claim made by the plaintiff
insofar as suit schedule 1(b) property and the same is incorrect
and accordingly, sought for interference of this Court.
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7. Per contra, Sri. Hanumanthreddy Sahukar, learned
counsel appearing for the respondent contended that as the
father himself has given Varadi to enter the name of late
Paddavva and Kamalavva (defendant No.2) in revenue records,
the plaintiff is not entitled for share in suit schedule 1(b)
property and accordingly, sought for dismissal of the appeal.
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 and perused the
original records. In order to understand the relationship
between the parties, the genealogy is produced as under:
Bhimappa (Dead)
Gurushiddavva (D1)
Paddavva (Dead) Kamalavva (D2) Iravva (plaintiff)
Shiddavva Mallappa
(D3) (D4)
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9. Perusal of the genealogy would indicate that the
original propositus-Bhimappa died leaving behind his wife-
Gurusiddavva (defendant No.1), Kamalavva (defendant) No.2,
Iravva (plaintiff) and Paddavva (mother of defendant No.3 &
4). It is also to be noted that Gurusiddavva died during the
pendency of the proceedings. In that view of the matter, since
the suit schedule properties are the joint family properties and
therefore, the daughters of Bhimappa viz., Paddavva (mother
of defendant No.3 and 4), Kamalavva (defendant No.2) and
Iravva (plaintiff) are entitled for 1/3rd share each in the suit
schedule properties. Though Varadi has been given by
Bhimappa in respect of suit schedule 1(b) property, however,
since the said property is the ancestral property of Bhimappa,
the Varadi given by Bhimappa cannot be considered as
relinquishment of right of the plaintiff and therefore, the Trial
Court after considering the material on record has rightly
decreed the suit holding that the plaintiff is entitled for 1/3rd
share in the suit schedule properties, however, the First
Appellate Court has committed an error in rejecting the claim of
the plaintiff in suit schedule 1(b) property. In that view of the
matter, the substantial question of law favours the plaintiff and
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accordingly, the judgment and decree passed by the First
Appellate Court suffers from perversity and same is required to
be interfered with in this appeal. Hence, I pass the following:
ORDER
i) The appeal is allowed.
ii) The Judgment and decree dated 16.12.2017
in R.A.No.30/2014 passed by the Additional
District and Sessions Judge, Gadag is hereby
set aside insofar as suit schedule 1(b)
property.
iii) The judgment and decree dated 13.03.2014
in O.S.No.28/2008 passed by the Additional
Senior Civil Judge, Gadag is hereby
confirmed and accordingly, suit of the
plaintiff is decreed.
iv) 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
