Hanamappa Hanamantappa Yallappa Birshiddi Vs Pundalik Hanamappa Hanamantappa Birshiddi

SHIVAKKA W/O. RAMAPPA BIRASIDDI, AGE: 76 YERARS, OCC: AGRIL., R/O: GHATAKANUR TQ:RAMDURG, DIST:BELGAUM NOW AT HANCHINAL TQ: SAUNDATTI, DIST: BELAGAVI - 23.

¶18

2 -

¶19

NC: 2025:KHC-D:7317 RSA No. 1445 of 2006

¶20

HC-KAR

¶21

SMT. YANKAWWA W/O. MARITAMAPPA JOTENNAVAR, AGE:MAJOR, OCC: AGRICULTURE, R/O: KAGADAL, TQ:SAUNDATI, NOW AT GHATAKANUR, TQ: RAMDURG, DIST: BELAGAVI – 23.

¶22

YANKAPPA RAMAPPA BIRASIDDI, AGE: 53 YEARS, OCC: AGRICULTURE, R/O: GHATAKANUR, TQ: RAMDURG, DIST:BELAGAVI – 23.

¶23

HANAMAPPA RAMAPPA BIRASIDDI, AGE:48 YEARS, OCC: AGRICULTURE, R/O: GHATAKANUR, TQ: RAMDURG, DIST:BELAGAVI – 23.

¶24

FAKIRAWWA D/O. YALLAPPA BIRASIDDI, AGE: 47 YEARS, OCC: HOUSEHOLD WORK, R/O: GHATAKANUR, TQ: RAMDURG, DIST: BELAGAVI – 23.

¶25

… RESPONDENTS

¶26

(BY SRI. GIRISH V. BHAT, ADVOCATE FOR R1; R2 TO R6 ARE NOTICE TO HELD SUFFICIENT)

¶27

THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 18.02.2006 IN RA NO.61/2004 ON THE FILE OF THE CIVIL JUDGE (SR.DN), SAUNDATTI AND THE JUDGMENT AND DECREE DATED 28.09.2004 IN OS NO.109/1993 ON THE FILE OF THE CIVIL JUDGE (JR.DVN.) RAMDURG, OS NO.109/1993 BE DISMISSED AND THIS APPEAL BE ALLOWED WITH COSTS THROUGHOUT AND ETC.,

¶28

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

¶29

3 -

¶30

NC: 2025:KHC-D:7317 RSA No. 1445 of 2006

¶31

HC-KAR

¶32

ORAL JUDGMENT

¶33

(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

¶34

This appeal is by defendant Nos.1 and 2 being aggrieved by judgment and decree, dated 28.09.2004 passed in O.S. No. 109/1993 on the file of the Civil Judge (Jr. Dn.) Ramdurg (for short “the trial Court”) which is confirmed by the judgment and order dated 18.02.2006 passed in R.A. No.61/2004 on the file of the Civil Judge Senior Division, Saundatti (for short “the First Appellate Court”).

¶35

The above suit is filed by the respondent No.1 herein as plaintiff No.2 along with his mother Smt.Yellamma, as plaintiff No.1, who died during the pendency of the suit, seeking partition and separate possession of their 8/27^th share in the suit schedule property and for the relief of permanent injunction against defendant Nos.1 to 3 restraining them from alienating the suit property by metes and bounds.

¶36

The plaint schedule properties consist of eight

¶37

4 - NC: 2025:KHC-D:7317 RSA No. 1445 of 2006

¶38

HC-KAR

¶39

items of landed properties described as schedule A to the plaint. The house property is described as schedule B to the plaint and certain movable properties are described as schedule C to the plaint.

¶40

The case of the plaintiffs is that, one Yellappa Yankappa Birasiddi, the propositus of the family, was the owner of the suit properties, who passed away on 29.08.1983 leaving behind his two sons namely defendant No.1 and defendant No.2 and a daughter, defendant No.3. Smt. Satyavva wife of said Yellappa Yankappa Birasiddi predeceased him. Plaintiff No.1 is the son born to plaintiff No.2 and defendant No.1. Defendant No.3 was managing

¶41

the affairs of the family of the plaintiffs as well as defendant Nos.1 to 3. Defendant No.1 was not aware of the worldly affairs. With an intention to deny and deprive the share of plaintiffs, defendant Nos.2 and 3 were causing hardship to the plaintiffs, constraining them to file the above suit for partition and for separate possession.

¶42

5 - NC: 2025:KHC-D:7317 RSA No. 1445 of 2006

¶43

HC-KAR

¶44

Defendant Nos.1 to 3 filed written statement

¶45

denying the claim of the plaintiffs that the suit property being in the joint family properties; also denied that plaintiff No.2 being the legally wedded wife of defendant No.1 and plaintiff No.1 is the son born to plaintiff No.2 and defendant No.1. The claim of the plaintiffs being the members of joint family and being entitled for the share is also denied. Accordingly, sought for dismissal of the suit.

¶46

Based on the pleadings, the trial Court framed

¶47

the following issues for its consideration:

¶48

ISSUES

¶49

1. Whether the plffs. prove that the suit properties were of the ownership of deceased Yallappa Yenkappa Birasiddi, who expired on 29-8-1993 at Ghatakanur and further plaintiffs and defts 1,2 and 3 are the legal heirs to deceased Yallappa?

¶50

2. Whether the genealogy shown by the plffs. in para 4 of the plaint is genuine one?

¶51

3. Whether the plffs. further prove that plffs. and defts 1 to 3 constitute a joint Hindu undivided family and the suit properties shown in schedule A & B are the joint Hindu ancestral properties? and whether they are in joint possession of these properties?

¶52

6 -

¶53

NC: 2025:KHC-D:7317 RSA No. 1445 of 2006

¶54

HC-KAR

¶55

4. Whether the plffs. are entitled to 8/27^th share in the suit schedule properties, if equitable partition is effected by metes and bounds?

¶56

5. Whether the defts prove that there is no cause of action for the suit?

¶57

6. What decree or order?

¶58

ADDL. ISSUES

¶59

1. Whether the plff. proves that plff - 1 is the son of deft-1 and plff-2?

¶60

2. Whether the plff. further proves that the plff.No.2 is the legally wedded wife of deft-1?

¶61

Originally, one Dyamappa Fakirappa

¶62

Satyappanavar acting as next friend of plaintiff No.1 had examined himself as PW1. On plaintiff No.1 attaining the age of majority, he examined himself as PW3. In addition, one Mallappa Yallappa Budhihal has been examined as PW2. 12 documents have been marked on behalf of the plaintiffs as Exs.P1 to P12. Defendant Nos.2 and 1 have been examined as DW1 and DW3 respectively and got examined one witness as DW2 and exhibited 6 documents marked as Exs.D1 to D6. On appreciation of evidence, the trial Court answered issue Nos.1 to 3 & 5 and additional issue Nos.1 and 2 in the affirmative and consequently while answering

¶63

7 -

¶64

NC: 2025:KHC-D:7317 RSA No. 1445 of 2006

¶65

HC-KAR

¶66

issue No.4 held that the plaintiffs are entitled for 2/9^th share

¶67

in item Nos.1 to 7 of schedule A and B properties.

¶68

Being aggrieved defendant Nos.1 and 2 preferred regular appeal in R.A. No.61/2004 before the First Appellate Court. The First Appellate Court framed the following points for its consideration:

¶69

1. Whether the Judgment and decree under appeal are contrary to law and evidence on record?

¶70

2. Whether there are any grounds for this court to interfere in the judgment and decree under appeal?

¶71

3. What Decree or order?

¶72

On re-appreciation, answered the same in the

¶73

negative and consequently dismissed the appeal confirming the judgment and decree passed by the trial Court.

¶74

Being aggrieved, the present appeal by

¶75

defendant Nos.1 and 2. Defendant No.1 is stated to have passed away during the pendency of this appeal in the year 2021.

¶76

8 -

¶77

NC: 2025:KHC-D:7317 RSA No. 1445 of 2006

¶78

HC-KAR

¶79

This Court by order dated 17.02.2009 admitted

¶80

the above appeal for consideration of the following substantial questions of law:

¶81

i) Whether the nature of consideration of the evidence by the trial Court as well as the Lower Appellate Court had led to a perverse finding with regard to the conclusion that the plaintiff No.1 is the son of the 1^st defendant and plaintiff No.2 is the wife of the 1^st defendant?

¶82

ii) Whether the rejection of the application filed by defendant No.1 before the trial Court in I.A. Nos.11, 13 and 14 had led to the wrong conclusion of the trial Court with regard to the finding of paternity of the 1^st defendant with that of the 1^st plantiff?

¶83

iii) Whether in such circumstances, the entire consideration and the ultimate carving out of the share has been wrongly done by the Courts below?

¶84

Learned counsel appearing for the appellant

¶85

reiterating the grounds urged in the memorandum of appeal vehemently submitted that the plaintiffs have not proved the fact of plaintiff No.2 being the legally wedded wife of defendant No.1, without leading any cogent and acceptable evidence. No witnesses have been examined to establish the factum of marriage as required under law. The

¶86

9 -

¶87

NC: 2025:KHC-D:7317 RSA No. 1445 of 2006

¶88

HC-KAR

¶89

requirement of continuous living together as husband and wife is also not established. Since the requirement of marriage not having been established satisfactorily, the claim of the plaintiffs being the members of joint family of defendants and their entitlement to the joint family properties cannot be countenanced. She further submitted that though application was filed in I.A. No.11 seeking necessary orders for the purpose of examination of blood samples of plaintiff No.1 and defendant No.1 as well as for the DNA test by a competent Doctor, the same has been rejected without justifiable cause. She submits that nonconsideration of the aforesaid aspect of the matter go to the root of the case, resulting in perversity with the judgment and decree passed by the trial Court, which is confirmed by the First Appellate Court and the substantial questions of law framed as above therefore be held in the affirmative in favour of the appellant and seeks for allowing of the appeal.

¶90

She further submitted that during the pendency of the suit, defendant No.1 had executed a Will dated

¶91

10 -

¶92

NC: 2025:KHC-D:7317 RSA No. 1445 of 2006

¶93

HC-KAR

¶94

16.02.2019, which was registered on 19.02.2019 and this Court by its order dated 21.08.2023 had remitted the matter to the trial Court for the limited purpose of ascertaining whether appellant No.2 / defendant No.2 and respondent No.6 were the legatees under the said Will executed by the deceased - defendant No.1. She submits that the enquiry report has been placed on record before this Court and appellant No.2 and respondent No.6 have been held to be the legatees under the said Will. She submits that since the Will has been executed by defendant No.1 bequeathing his share in the suit property in favour of appellant No.2 / defendant No.2 and respondent No.6; nothing remains to be allotted to the share of plaintiff No.1. Hence, seeks for allowing of the appeal.

¶95

Per contra, learned counsel appearing for the plaitniffs submits that the trial Court and the First Appellate Court have rightly appreciated the evidence let in by the plaintiffs including the evidence of PW2, who is none other than the relative of the parties, who has spoken about the

¶96

11 -

¶97

NC: 2025:KHC-D:7317 RSA No. 1445 of 2006

¶98

HC-KAR

¶99

existence of relationship of husband and wife between plaintiff No.2 and defendant No.1 and plaintiff No.1 being the son of plaintiff No.2 and defendant No.1. He submits that the requirement of Section 50 of the Evidence Act has

¶100

been discharged. The trial Court and the First Appellate Court have made no mistake in decreeing the suit as sought for. Learned counsel for the plaitniffs further submits that defendant No.1 could not have executed a Will in respect of the joint family properties depriving the legitimate entitlement of plaintiff No.1.

¶101

Heard. Perused the records.

¶102

The dispute is only with regard to the

¶103

relationship of plaintiff No.2 being wife of defendant No.1 and plaintiff No.1 being the son of plaintiff No.2 and defendant No.1. The trial Court which had framed a specific issue in this regard namely additional issue No.2, at paragraph Nos.13, 14, 15 & 16 has extensively dealt with the factual aspect of the relationship of plaintiffs with

¶104

12 -

¶105

NC: 2025:KHC-D:7317 RSA No. 1445 of 2006

¶106

HC-KAR

¶107

defendant No.1.

¶108

PW1, one Dyamappa Fakirappa Satteppanavar,

¶109

who examined himself as next friend of plaintiff No.1 has stated that he is the brother of plaintiff No.2 and he has spoken about the marriage of plaintiff No.2 with defendant No.1 having been performed about 18 years ago from the date of his deposition i.e., on 24.05.2000. In addition, PW2 namely Mallappa Yellappa Budihal, who is elderly person of Gataknur Village has also spoken about the marriage of plaintiff No.2 having been performed with defendant No.1 about 20 to 22 years ago. The trial Court has taken note of

¶110

the fact that both plaintiffs and defendants are residing in

¶111

the very same village and they also belong to Kuruba community, which is the same community of the parties. The presumption with regard to relationship plaintiff No.2 being the wife of defendant No.1 and plaintiff No.1 born out of the of said relationship between them thus having been

¶112

drawn, the same has not been rebutted by the defendants by leading any cogent evidence as required under law, is

¶113

13 -

¶114

NC: 2025:KHC-D:7317 RSA No. 1445 of 2006

¶115

HC-KAR

¶116

the finding by the trial Court and the First Appellate Court.

¶117

The trial Court and the First Appellate Court have therefore held that plaintiff No.2 is the legally wedded wife of defendant No.1 and plaintiff No.1 is the son of the plaintiff No.2 and defendant No.1 and in the absence of any irregularity being pointed out in appreciation of the aforesaid evidence by the trial Court and the First Appellate Court and the conclusion arrived at by the Courts on the question of fact, this Court do not find any reason to interfere and reverse the same. The witnesses, who have been examined namely PW1 being the relative of plaintiff No.2 and PW2 being the elderly person in the family as noted above spoken about the marriage and relationship between plaintiff No.2 and defendant No.1, which is the statement / opinion acceptable in terms of Section 50 of the Evidence Act and also as held by the Apex Court in the case

¶118

of Bant Singh and another Vs. Nianjan Singh (Dead) by L.Rs. and another¹ Substantial questions of law Nos.1

¶119

1 (2008) 4 SCC 75

¶120

14 -

¶121

NC: 2025:KHC-D:7317 RSA No. 1445 of 2006

¶122

HC-KAR

¶123

and 3 raised by this Court are thus answered in the negative.

¶124

In the light of the aforesaid finding, the trial Court and the First Appellate Court have rejected the applications filed by the appellants / defendants to conduct test to find out the paternity of plaintiff No.2 with defendant No.1. Therefore, no error can be found with the rejection of the applications either. In any case, both plaintiff No.2 and defendant No.1 having passed away, the circumstances requiring referring the matter as sought for in the interim applications would also not arise. Substantial question of law No.2 is answered accordingly.

¶125

Learned counsel for the parties at this juncture submits that the trial Court and the First Appellate Court had decreed the suit granting 2/9^th share on the basis of the notional partition, that in view of the change of law by way of amendment to Section 6 of the Hindu Succession Act, the same may require to be modified.

¶126

15 -

¶127

NC: 2025:KHC-D:7317 RSA No. 1445 of 2006

¶128

HC-KAR

¶129

Admittedly, Yellappa Yankappa Birasiddi was the propositus in possession and enjoyment of the suit property being ancestral properties passed away leaving behind three children namely Venkappa - defendant No.2, Hanamappa - defendant No.1 and daughter Fakiravva - defendant No.3 and they would thus be entitled for 1/3^rd share in the suit properties. Since defendant No.1 passed away leaving behind plaintiff No.1, he would be entitled to 1/3^rd share. Thus, the judgment and decree passed by the trial Court granting 2/9^th share is modified and held that defendant No.2, plaintiff and defendant No.3 would be entitled to 1/3^rd share each in the family properties.

¶130

At this juncture, learned counsel for the appellants submits that since defendant No.1 had executed a Will dated 16.02.2019, which was registered on 19.02.2019, during his life time, liberty be reserved to defendant Nos.2 and 3 to seek such remedy as may be available under law. The submission is taken on record.

¶131