Chidanand S/O Nagendra Wadekar Vs Ratnabai W/O Balakrishna@Balappa Pisse

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NC: 2025:KHC-D:11694 RFA No. 100034 of 2014

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10^TH DAY OF SEPTEMBER, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI REGULAR FIRST APPEAL NO. 100034 OF 2014 (PAR)

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BETWEEN:

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SRI. CHIDANAND S/O NAGENDRA WADEKAR (SINCE DECEASED BY LR’S.,)

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1a. SMT. SAVITRIBAI W/O CHIDANAND VADEKAR, AGE: 72 YEARS, OCC: HOUSEHOLD WORK, R/O : SHRINAGAR, UNKAL,

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HUBBALLI, DIST. DHARWAD.

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1b. SMT. PUSHPAVATI W/O JNANESHWAR KOLEKAR, AGE: 49 YEARS, OCC. HOUSEHOLD WORK R/O: DHARWASD.

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1c. SRI. VASUDEV S/O CHIDANAND VADEKAR, AGE: 46 YEARS, OCC: PVT. SERVICE, R/O : SHRINAGAR, UNKAL, HUBBALLI, DIST. DHARWAD.

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MOHANKUMAR B SHELAR

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Digitally signed by MOHANKUMAR B SHELAR Date: 2025.09.17 15:46:08 +0530

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1d. SMT. LAXMI W/O VITTAL PAVALE AGE: 26 YEARS, OCC: HOUSEHOLD WORK, R/O: BAPUJI NAGAR, DAVANAGERE.

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1e. SMT. VEENA W/O UDAY BONGALE, AGE: 40 YEARS, OCC: HOUSEHOLD WORK, R/O: BAILAHONGAL, DIST. BELAGAVI.

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SRI. SURESH S/O NAGENDRA WADEKAR, (SINCE DECEASED BY LR’S)

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2a. SMT. DRAKSHAYINI D/O CHANDRAPPA MEERAJKAR (D/O: MANJULA MEERAJKAR), AGE: 22 YEARS, OCC: HOUSEHOLD WORK

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2b. SMT. SAVITRI @ POOJA W/O PRAKASH ANASKAR, AGE: 40 YEARS, OCC: HOUSEHOLD WORK

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2c. SRI. SIDDAPPA S/O SURESH WADEKAR, AGE: 29 YEARS, OCC: AGRICULTURE,

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2d. SMT. VIDYA @ ANNAKKA W/O VIJAY PORE, AGE: 26 YEARS, OCC: HOUSEHOLD WORK

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ALL ARE R/O: C/O. C.N. VADEKAR, SAINAGAR, PLOT NO.11/A, 3^RD CROSS, UNAKAL, HUBBALLI, DIST. DHARWAD.

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SRI. SUBHASH S/O NAGENDRA WADEKAR (SINCE DECEASED BY LR’S.,)

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3a. BABU S/O SUBHASH WADEKAR AGE: 40 YEARS, OCC: BUSINESS,

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3b. ROOPA W/O TUKARAM PORE, AGE: 45 YEARS, OCC: HOUSEHOLD WORK

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3c. NIRMAL W/O TUKARAM PORE, AGE: 42 YEARS, OCC: HOUSEHOLD WORK

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ALL R/O. MULLA ONI, BHAIRIDEVARKOPPA, HUBBALLI.

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BHAIRAPPA S/O NAGENDRA WADEKAR SINCE DECEASED BY HIS LRS,

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4a. SMT. RATNABAI W/O BHAIRAPPA WADEKAR, AGE 45 YEARS, OCC: HOUSEHOLD, R/O. SAINAGAR, UNKAL, HUBLI.

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4b. KRISHNA S/O BHAIRAPPA WADEKAR, AGE: 45 YEARS, OCC: HOUSEHOLD, R/O. SAINAGAR UNKAL, HUBLI.

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SUNIL S/O NAGENDRA WADEKAR, AGE: 48 YEARS, OCC: AGRICULTURE, R/O. BADAMI ONI, UNKAL HUBLI.

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SMT. AKKUBAI W/O RATNAKAR MIRAJKAR, AGE: 60 YEARS, OCC: HOUSEHOLD R/O. NEAR BUS STOP, NEGINAL, TQ: BAILHONAGAL, DIST: BELGAUM.

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SRI. VASUDEV S/O CHIDANAND WADEKAR AGE: 32 YEARS, OCC: SERVICE, R/O. SAINAGAR, HUBLI.

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…APPELLANTS

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(BY SRI. SAGAR S. HEGDE, ADV)

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AND:

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SMT. RATNABAI W/O BALAKRISHNA @ BALAPPA PISSE, AGE: 58 YEARS, OCC: HOUSEHOLD, R/O. NEKARNAGAR, OLD HUBLI, HUBLI.

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SMT. SHANTABAI W/O HARISHCHANDRA PORE (SINCE DECEASED BY LR’S.,)

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2a. TUKARAM S/O HARISHCHANDRA PORE AGE. 50 YEARS, OCC: BUSINESS,

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2b. SIDDAPPA S/O HARISHCHANDRA PORE, AGE: 46 YEARS, OCC: SERVICE,

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BOTH ARE R/O. KURAGUND, BAILHONGAL, DIST: BELAGAVI-591102.

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SMT. SIDDAKKA @ INDUBAI W/O VITHOBA KHATAWKAR, AGE: 53 YEARS, OCC HOUSEHOLD, R/O. BELVANTAR, TQ: KALAGHATAGI, DIST: DHARWAD.

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SMT. GANGUBAI @ LAXMIBAI W/O BALAKRISHNA PISSE, SINCE DECEASED BY LR’S.,

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4a. BALAKRISHNA PISSE

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AGE: 58 YEARS, OCC: AGRICULTURE, R/O. GANDHINAGAR, MUNDGOD,

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DIST: UTTARA KANNADA.

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4b. APPANNA S/O BALAKRISHNA PISSE AGE: 32 YEARS, OCC: TAILORING, R/O. GANDHINAGAR, MUNDGOD, DIST: UTTARA KANNADA.

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4c. SANTOSH S/O BALAKRISHNA PISSE

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NC: 2025:KHC-D:11694 RFA No. 100034 of 2014

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AGE: 30 YEARS, OCC: TAILORING, R/O. GANDHINAGAR, MUNDGOD, DIST: UTTARA KANNADA.

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4d. VASANT S/O BALAKRISHNA PISSE AGE: 28 YEARS, OCC: TAILORING, R/O. GANDHINAGAR, MUNDGOD, DIST: UTTARA KANNADA.

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SRI. SIDDAPPA S/O NAGENDRA WADEKAR, AGE: 42 YEARS, OCC: AGRICULTURE, R/O. LADSAB SIBARAGATTI, BADAMI ONI, UNKAL, HUBLI.

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…RESPONDENTS

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(BY SRI. M.R. MULLA, ADV FOR R1 TO R3 & R4(A TO D), SRIYUTHS. VISHWANATH BICHAGATTI AND JAYAVANTH KAMBLI, ADVS FOR R2(A & B) AND R4(A TO D) NOTICE TO R5 IS SERVED)

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THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 01.08.2013 PASSED IN O.S.NO.10/2013 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE & JMFC, HUBLI, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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

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CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

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This Regular First Appeal is filed by the appellants, challenging the judgment and preliminary decree dated

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NC: 2025:KHC-D:11694 RFA No. 100034 of 2014

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01.08.2013 passed in O.S.No.10/2013 by the learned Principal Senior Civil Judge and JMFC, Hubli.

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For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were defendant Nos. 1 to 5, 7, and 8, respondents No.1 to 4 were the plaintiffs and respondent No.5 was defendant No.6.

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Brief facts, leading rise to the filing of this Regular First Appeal, are as follows:

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The plaintiffs filed a suit against the defendants for a partition and separate possession. It is the case of the plaintiffs that the suit schedule properties belonging to Nagendra Wadekar, who died on 30.08.1979, leaving behind the plaintiffs and defendant No.7 as the daughters and defendants No.1 to 6 being the sons of the deceased Nagendra Wadekar. After the demise of Nagendra Wadekar, the plaintiffs and defendants have succeeded to

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the estate of the deceased Nagendra Wadekar. The suit schedule properties are the joint family properties of the plaintiffs and defendants; they are the members of Hindu Undivided Family and no partition is effected between the parties to the suit. The plaintiffs demanded a partition and separate possession, but the defendants refused to effect a partition. Hence, a cause of action arose for the plaintiffs to file a suit for a partition and separate possession. Accordingly, prays to decree the suit.

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The defendants appeared through counsel; however, did not file a written statement. The defendants filed an application seeking permission to file the written statement when the case was posted for judgment, and the said application was rejected by the trial court.

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The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW.1 and 11 documents were marked as Exs.P1 to P11.

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The trial court, after hearing the learned counsel for the parties, framed the following points for consideration:

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i. Whether the plaintiffs are entitled for share in the suit properties by way of partition?

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ii. What order?

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The trial court, after recording the evidence, hearing both sides and after assessing the verbal and documentary evidence, answered point No.1 in the affirmative, and point No.2 as per the final order. The suit of the plaintiffs was decreed vide judgment dated 01.0.2013 and it is declared that the plaintiffs and defendant No.7 have equal i.e., 1/11^th share each in the suit properties. It is also held that, if the defendants failed to effect the partition, the plaintiffs are at liberty to appoint the court commissioner to effect a partition.

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The defendants, aggrieved by the judgment and preliminary decree passed in O.S.No.10/2013 on the file of the learned Principal Senior Civil Jude, Hubli, filed this Regular First Appeal.

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Heard the arguments of the learned counsel for the defendants, and learned counsel for the plaintiffs.

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Learned counsel for the defendants submits that, except, schedule B(2) of the suit schedule property, all other properties are the ancestral /joint family properties. The plaintiffs have no right to claim share in item No.B(2) of the suit schedule property. He submits that the trial court committed an error in decreeing the suit regarding schedule B(2) of the suit property. He submits that he has no objection to confirm the judgment and preliminary decree passed regarding the other items of the suit schedule properties. Hence, prays to allow the appeal.

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11 . Per contra , the learned counsel for the plaintiffs

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fairly concedes that schedule B(2) of the suit property may be excluded, and the judgment and decree passed by the trial court may be confirmed. Hence, prays to dismiss the appeal.

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Perused the records, and considered the

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submissions of the learned counsel for the parties.

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The points, that would arise for consideration are as follows:

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1. Whether the defendants prove that item No.(2) of the ‘B’ suit schedule property is the selfacquired property of the defendants?

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1. Whether the defendants prove that the judgment and preliminary decree passed by the trial court insofar as item No.(2) of the ‘B’ schedule property, requires to be set aside?

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What order or decree?

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Point No.1 and 2:

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Point Nos.1 and 2 are interlinked with each other, and are taken together for a common discussion, to avoid the repetition of the facts.

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There is no dispute regarding the relationship between the parties to the suit and also regarding the nature of the suit schedule properties except item No.(2) of the ‘B’ schedule property. The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW.1 and she reiterated the plaint averments in the examination-in-chief. To prove that the suit schedule properties are the ancestral/ joint family properties, PW-1 has produced the documents Exs.P1 to P11. There is no dispute that, except item No.(2) of the ‘B’ schedule property, all other properties were standing in the name of Nagendra Wadekar i.e., the original propositus. He died, leaving behind the plaintiffs and

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defendants as his legal heirs. After the demise of Nagendra Wadekar, the suit properties devolved upon the plaintiffs and the defendants. The plaintiffs and defendants are the members of Hindu Undivided family and no partition is effected between them. The only grievance of the defendants is, regarding item No.(2) of the ‘B’ schedule property. Although the defendants appeared through counsel, however, they did not file a written statement. It is submitted that item No.(2) of the ‘B’ schedule property is the self-acquired property of the defendants. In the absence of the written statement, the trial court granted a share in item No. (2) of the ‘B’ schedule property.

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Learned counsel for the plaintiffs submits that item No. (2) of ‘B’ schedule property may be excluded from the impugned judgment, and a preliminary decree passed by the trial court, and the rest of the judgment passed by the trial court may be maintained.

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In view of the submission made by the learned counsel for the plaintiffs that item No.(2) of the ‘B’ schedule property is the self-acquired property of the defendants, the plaintiffs are not entitled to a share in item No.(2) of the ‘B’

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schedule property. In view of the above discussion, I answer point No.1 and 2 in favour of the defendants and in the affirmative.

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