Partly allowed

Sri. Kallappa S/O. Basavana Gouda v. Smt. Kamalamma @ Kamalakshi W/O. Late Ningappa

Karnataka HC11 Sept 2024RFA/100018/2018

Case brief

AI extract

What is this about?

The High Court allowed the first appeal in part. It set aside the civil court decree declaring the first respondent entitled to a share, restored the suit for reconsideration, and directed the lower court to permit additional defendants (deceased's sisters) to plead and lead evidence regarding their share.

What did the court decide?

Impugned judgment and decree set aside; suit restored; opportunity given to sisters to plead and lead evidence; cooperative timeline fixed for evidence completion.

Sri. Kallappa S/O. Basavana Gouda Vs Smt… — Succession and Inheritance | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:13005-DB RFA No. 100018 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 11^TH DAY OF SEPTEMBER, 2024

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PRESENT

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THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD

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AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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REGULAR FIRST APPEAL NO.100018 OF 2018 (PAR/POS)

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BETWEEN:

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SRI. KALLAPPA S/O. BASAVANAGOUDA SINCE DECEASED BY HIS LR’s.,

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1(A). SMT. MANJULA @ KAVITA AGED ABOUT 35 YEARS, W/O. MR. KUMAR OLI.

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1(B). CHANDRAKALAVATI @ KAVYA, AGED ABOUT 32 YEARS, W/O. MR. LINGARAJ OLI,

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Digitally signed by VINAYAKA B V

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Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD Date: 2024.09.24 11:57:11 +0530

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BOTH RESIDENTS OF: GURURAJ HARDWARE SHOP, NEAR KEB, PWD CAMP, SINDHANUR-584128, DIST: RAICHUR.

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1(C). SRI. DODDABASAVA AGED ABOUT 27 YEARS, S/O. KALAPPA, PRASHANTNAGAR, GANGAVATI-583227, DIST: KOPPAL.

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1(D). SMT. MAHADEVAMMA, AGED ABOUT 57 YEARS, W/O. KALLAPPA, WARD NO.13, NEAR AMRASEHWARA SINGAL HOUSE, ISLAMPUR, GANGAVATI-583227, DIST: KOPPAL.

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1(E). SMT. SHIVALEELA, AGED ABOUT 38 YEARS, W/O. MR. KARIBASAPPA ANGADI, R/O. WARD NO.19, NEAR PEJAD ROAD, GANGAVATI-583227, DIST: KOPPAL.

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1(F). MR SANGAMESH, AGED ABOUT 32 YEARS,

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2 - NC: 2024:KHC-D:13005-DB RFA No. 100018 of 2018

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S/O. MR KALLAPPA, WARD NO.13, NEAR AMRASEHWARA SINGAL HOUSE, ISLAMPUR, GANGAVATI-583227, DIST: KOPPAL.

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APPELLANTS

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(BY SRI. P.V.GUNJAL, ADVOCATE FOR R1(A) TO R1(C); SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE FOR R1(D) TO R1(F))

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AND:

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SMT. KAMALAMMA @ KAMALAKSHI, AGED ABOUT 44 YEARS, W/O. MR. NINGAPPA, HALLADA ONI, SANDOOR, DIST: BALLARI.

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SMT. MALLAMMA, AGED ABOUT 73 YEARS, HOUSEWIFE, W/O. BASAPPA, RESIDENT OF WARD NO.8, PRASHANTNAGAR, GANGAVATI-583227, DIST: KOPPAL.

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SANNAMALLAMMA, AGED ABOUT 54 YEARS, HOUSEWIFE, W/O. MALLANAGOUDA, RESIDENT OF WARD NO.8, PRASHANTNAGAR, GANGAVATI-583227, DIST: KOPPAL.

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RESPONDENTS

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(BY SRI. P.G.MOGALI, ADVOCATE FOR R1; SRI. M.M.HIRALINGANNAVAR, ADVOCATE FOR R2 & R3)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SEC. 96 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 04.12.2017 PASSED IN O.S.NO.46/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE, GANGAVATHI, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION & ETC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD

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AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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3 - NC: 2024:KHC-D:13005-DB RFA No. 100018 of 2018

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD)

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This appeal is by the sole defendant in O.S. No. 46/2015 on the file of the learned Senior Civil Judge, Gangavathi [for short, the ‘ civil Court ’]. The civil Court by the impugned judgment and decree dated 04.12.2017 has decreed the first respondent’s suit for partition declaring that she is entitled for half a share in the suit schedule properties which comprise of both residential and agricultural properties. During the pendency of the appeal the appellant, Sri Kallappa, has died, and two rival set of claimants are permitted to come on record. The first set of claimants are the children are born to him from, Smt. Gouramma, and the other set of claimants are his another wife and children, and this second set of claimants assert that the first amongst them is the legally wedded wife of Sri Kallappa.

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This Court at this stage must refer that the first respondent’s husband, the deceased appellant, Sri Kallappa and Sri Ningappa are brothers. Their sisters, Smt.

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4 - NC: 2024:KHC-D:13005-DB RFA No. 100018 of 2018

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Mallamma and Smt. Sanna Mallamma, who were not parties to the suit, are now brought on record in this appeal. The first set of claimants under Sri Kallappa continue to dispute that the first respondent was married Sri Ningappa, but the second set of claimants admit the relationship between the first respondent and Sri Ningappa, and this is obvious from the submissions by Sri Hanumanthareddy Sahukar who is on record for the second set of claimants under the appellant.

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Sri M.M. Hiralingannavar, the learned

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counsel for the sisters who are impleaded in the appeal, is categorical in his submissions that these sisters deny that the first respondent was married to Sri Ningappa and that they must be given an opportunity to bring on record material that would justify their case that the first respondent was not married to Ningappa. The learned counsel submits that an opportunity to these sisters [the second and third respondent] to complete pleadings and participate in the proceedings to examine the first respondent [who is examined as PW1] and to bring on record

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5 - NC: 2024:KHC-D:13005-DB RFA No. 100018 of 2018

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the material will be crucial because if they succeeded in their defense that the first respondent was not married to Ningappa, they would be entitled to 1/3^rd share and if they fail they would be entitled to 1/4^th share.

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This Court has considered the question as to what the decision in the present appeal should be in the light of these set of circumstances, as also the submission by Sri P.G. Mogali, the learned counsel for the first respondent, that this respondent does not dispute that the second and third respondents are sisters of the deceased appellant and Sri Ningappa. This Court must opine that if the deceased appellant and first respondent have participated in the proceedings in the suit despite the undisputed fact that the second respondent and third respondent are also sisters and without bringing them on record, the sisters’ rights cannot be curtailed and that they must have due opportunity. Sri P.G. Mogali while not in a position to dispute that the second and the third respondent must have due opportunity, emphasizes that this Court

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6 - NC: 2024:KHC-D:13005-DB RFA No. 100018 of 2018

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must consider the first respondent’s case vis-à-vis that she is a widow from the year 2008 and is dependent only on the support from her parental family though she is entitled for 1/4^th share in the suit schedule properties which are not just valuable but also income yielding.

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This Court, with the opinion that the second and the third respondent’s rights cannot be effaced because the deceased appellant and the first respondent have participated in the proceedings without referring to the sisters, must ensure that there is expedite decision in suit but with due opportunity to them to complete pleadings, recall PW1 for cross examination and lead evidence, while also permitting the claimants under the deceased appellant to lead evidence on the limited question of who is his legally wedded wife and the inter se share in the suit schedule properties. This Court must also call upon the civil Court to frame appropriate Additional Issues and decide the suit on merits in view of the fact that the trial is completed insofar as the first set of claimants under the deceased appellant and the categorical stand on behalf of the second set of

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7 - NC: 2024:KHC-D:13005-DB RFA No. 100018 of 2018

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claimants that they do not deny the first respondent is married to Sri Ningappa. This arrangement is to enable complete adjudication of the dispute, and it is observed the civil Court will also be within its jurisdiction to pass all just and permissible orders to enable complete adjudication. For these reasons, the following order:

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ORDER

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[a] The appeal is allowed in part, and the civil Court’s impugned judgment and decree are set aside restoring the suit for re-consideration with opportunity to the second and third respondents to complete their pleadings, recall PW1 and to lead further evidence.

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[b] The parties to the proceedings shall, without further notice, appear before the trial Court on 22.10.2024.

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[c] The civil Court shall permit the first respondent to amend the cause title of the plaint to show that the deceased Kallappa, the appellant, is represented by the rival claimants who are arrayed as appellants in this case and also the second and third respondent as additional defendants.

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8 - NC: 2024:KHC-D:13005-DB RFA No. 100018 of 2018

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[d] The second and third respondent shall file their written statement, if any, on the first date of appearance on 22.10.2024.

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[e] The parties shall co-operate with the civil Court in completing the evidence on or before 31.01.2025, or such other additional time as may be permitted by the civil Court.

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[f] The civil Court shall only endeavor to decide the suit on merits considering the evidence on record and the evidence that would be placed on record by the second respondent and the third respondent on or before 31.03.2025.

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The registry is directed to transmit the records expeditiously.

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Sd/(B.M.SHYAM PRASAD) JUDGE

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Sd/(C M JOSHI) JUDGE

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BVV Ct:vh List No.: 1 Sl No.: 18

Sri. Kallappa S/O. Basavana Gouda v. Smt. Kamalamma @ Kamalakshi W/O. Late Ningappa

Case brief

What is this about?

What did the court decide?

Sri. Kallappa S/O. Basavana Gouda v. Smt. Kamalamma @ Kamalakshi W/O. Late Ningappa

Case brief

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What did the court decide?

What the court decided

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