Smt.Iravva W/O. Basappa Kallur, Vs Smt. Kamalavva W/O Hanumappa Kodli

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.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH

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ORAL JUDGMENT

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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.

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For the sake of convenience, the parties are referred to as per their rank before the Trial Court.

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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.

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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 deceasedPaddavva 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.

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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.

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3.3. The Trial Court, after considering the material on

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record, decreed the suit of the plaintiff holding that the plaintiff, defendant No.2 and late-Paddavva are entitled for 1/3^rd 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.

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This Court vide order dated 13.03.2023 formulated the following substantial question of law:

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“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?”

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I have heard Sri. S. S. Koliwad, learned counsel appearing for the appellant and Sri. Hanumanthreddy Sahukar, learned counsel appearing for the respondents.

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Sri. S. S. Koliwad, the learned counsel for the

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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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Per contra, Sri. Hanumanthreddy Sahukar, learned

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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.

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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:

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Bhimappa (Dead)

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Gurushiddavva (D1)

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Paddavva (Dead) Kamalavva (D2) Iravva (plaintiff)

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Shiddavva Mallappa (D3) (D4)

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Perusal of the genealogy would indicate that the original propositus-Bhimappa died leaving behind his wifeGurusiddavva (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 1/3^rd 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 1/3^rd 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:

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ORDER

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i) The appeal is allowed.

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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.

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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.

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iv) In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.

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YAN CT-MCK, List No.: 1 Sl No.: 45

Smt.Iravva W/O. Basappa Kallur, v. Smt. Kamalavva W/O Hanumappa Kodli

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Smt.Iravva W/O. Basappa Kallur, v. Smt. Kamalavva W/O Hanumappa Kodli

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