Smt. Gurubai W/O Mallappa Mallapur v. Basappa S/O Somappa Mallapur

NC:(2024:KHC-D:15815-DB( RFA(No.(100196(of(2017( ( ( ( ( IN(THE(HIGH(COURT(OF(KARNATAKA,(

DHARWAD(BENCH( ( THDATED(THIS(THE(29 (DAY(OF(OCTOBER,(2024( ( PRESENT( THE(HON'BLE(MR.(JUSTICE(SREENIVAS(HARISH(KUMAR( (AND(( (THE(HON'BLE(MR.(JUSTICE(T.(G.(SHIVASHANKARE(GOWDA(

( REGULAR(FIRST(APPEAL(NO.100196(OF(2017((PAR)( ( BETWEEN:(( (

1., SMT.,GURUBAI,, W/O,MALLAPPA,MALLAPUR,@,MURANDAGI,, AGE:,43,YEARS,,OCC:,HOUSEHOLD,WORK,,

R/AT:,ROLLI,AND,NEERALAKERI,VILLAGE,AND,POST,, BAGALKOT,TALUK,AND,DISTRICT., PIN,CODOE:,587,101., ,

2., SANGAVVA,@,SANGAMMA,,

W/O,SUBHAS,GADDI,, AGE:,23,YEARS,,OCC:,HOUSEHOLD,WORKS,, R/AT:,ROLLI,AND,NEERALAKERI,VILLAGE,AND,POST,, BILAGI,TALUK,AND,DISTRICT,,, PIN,CODOE:,587101.,

…APPELLANTS, (BY,, MISS.,RANJITA,RADDI,ALAGAWADI,ADV.,FOR,, SRI,S.B.,HEBBALLI,,ADV.),MANJANNA E , Digital ytisignedtiby MANJANNA0E AND:( Location:0High0Courttiof Karnataka,0Dharwad Bench Date:02024.11.05010:14:45 ( +0530

1., BASAPPA,, S/O,SOMAPPA,MALLAPUR,@,MURANDAGI,, AGE:,63,YEARS,,OCC:,AGRICULTURE,, R/AT:,NEERALAKERI,VILLAGE,AND,POST,, BAGALKOT,TALUK,AND,DISTRICT,, PIN,CODE:,587101., ,

2., MALLAPPA, S/O,BASAPPA,MALLAPUR,@,MURANDAGI,, AGE:,48,YEARS,,OCC:,AGRICULTURE,, R/AT:,NEERALAKERI,VILLAGE,AND,POST,, BAGALKOT,TALUK,AND,DISTRICT,, PIN,CODE:,587101., NC:(2024:KHC-D:15815-DB( RFA(No.(100196(of(2017( ( ( ( (

3., RENAVVA, W/O,RANGAPPA,MALLAPUR,@,MURANDAGI,, AGE:,48,YEARS,,OCC:,AGRICULTURE,, R/AT:,NEERALAKERI,VILLAGE,AND,POST,, BAGALKOT,TALUK,AND,DISTRICT,, PIN,CODE:,587101., ,

4., KUMAR,, S/O,RANGAPPA,MALLAPUR,@,MURANDAGI,, AGE:,20,YEARS,,OCC:,STUDENT,, R/AT:,NEERALAKERI,VILLAGE,AND,POST,, BAGALKOT,TALUK,AND,DISTRICT,, PIN,CODE:,587101., ,

5., AMBARISH, S/O,RANGAPPA,MALLAPUR,@,MURANDAGI,, AGE:,18,YEARS,,OCC:,STUDENT,, R/AT:,NEERALAKERI,VILLAGE,AND,POST,, BAGALKOT,TALUK,AND,DISTRICT,, PIN,CODE:,587101., ,

6., YALLAVVA, W/O,MAHAGUNDAPPA,GANIGER,, AGE:,53,YEARS,,OCC:,HOUSEHOLD,WORK,, R/AT:,NEERALAKERI,VILLAGE,AND,POST,, BAGALKOT,TALUK,AND,DISTRICT,, PIN,CODE:,587101., ,

7., KUMADWATI,S.,W/O,RAGHAVENDRA,RAO,, AGE:,53,YEARS,,OCC:,HOUSEHOLD,WORK,, R/AT:,LAXMINAGAR,, BAGALKOT,TALUK,AND,DISTRICT,, PIN,CODE:,587101., ,

8., S.SATYANARAYAN,, S/O,RAGHAVENDRA,RAO,, AGE:,33,YEARS,,OCC:,PRIVATE,TRADE,, R/AT:,LAXMINAGAR,, BAGALKOT,TALUK,AND,DISTRICT,, PIN,CODE:,587101., ,

9., S.ASHWINI, D/O,RAGHAVENDRA,RAO,, AGE:,25,YEARS,,OCC:,STUDENT,, R/AT:,LAXMINAGAR,, BAGALKOT,TALUK,AND,DISTRICT,, PIN,CODE:,587101., NC:(2024:KHC-D:15815-DB( RFA(No.(100196(of(2017( ( ( ( (

10., DAYANAND,BALAVANT,WAGH, AGE:,53,YEARS,, OCC:,AGRICULTURE,AND,TRADE,, R/AT:,KALADAGI,, BAGALKOT,TALUK,AND,DISTRICT,, PIN,CODE:,587101., ,

11., TIPPANNA,AYYAPPA,MAJJAGI, AGE:,33,YEARS,,, OCC:,AGRICULTURE,, R/AT:,NEERALAKERI,VILLAGE,AND,POST,, BAGALKOT,TALUK,AND,DISTRICT,, PIN,CODE:,587101., ,

12., BALAPPA,AYYAPPA,MAJJAGI,, AGE:,38,YEARS,,OCC:,AGRICULTURE,, R/AT:,NEERALAKERI,VILLAGE,AND,POST,, BAGALKOTE,TALUK,AND,DISTRICT,, PIN,CODE:,587101., …RESPONDENTS, , (BY,, SRI,RAGHAVENDRA,PUROHIT,FOR,, ,,,,,, SRI,ANAND,R.,KOLLI,,ADVOCATE,FOR,R10;, NOTICE,TO,R6,,R11,,R12,DISPENSED,WITH,, (V/O.,DATED,18.01.2021);, NOTICE,TO,R1,TO,R5,,R7,,R8,,R9,:,SERVED), , , THIS, RFA, IS, FILED, UNDER, SECTION, 96, OF, CODE, OF, CIVIL, PROCEDURE,, 1908,, AGAISNT, THE, JUDGMENT, AND, DECREE,DATED,

06.03.2017,PASSED,IN,O.S.NO.9/2014,ON,THE,FILE,OF,PRINCIPAL, SENIOR, CIVIL, JUDGE, AT, BAGALKOT, DECREEING, THE, SUIT, FILED, FOR,PARTITION,AND,SEPARATE,POSSESSION., , , THIS, APPEAL,, COMING, ON, FOR, FINAL, HEARING, THIS, DAY,, JUDGMENT,WAS,DELIVERED,THEREIN,AS,UNDER:, , , CORAM:, THE,HON'BLE,MR.,JUSTICE,SREENIVAS,HARISH,KUMAR, AND,, THE,HON'BLE,MR.,JUSTICE,T.,G.,SHIVASHANKARE,GOWDA, (

ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR) This appeal is directed against judgment and decree dated 06.03.2017 in O.S.No.9/2014 on the file of Principal Senior Civil Judge, Bagalakote. Plaintiff nos.1 and 3 are the appellants.

¶2The relationship between the parties is represented in the following genealogical tree. Basappa (D-1)

Mallappa

Rangappa

Yallavva

(D2) (Died 8 years back) (D-6)

= Gurubai (wife) = Renavva (Plff.1)

(D-3)

Kumar Ambarish

(D-4)

(D-5)

Vithal

Sangavva (Plff-2)

(Plff-3)

¶3Plaintiff no.1 is the wife of defendant no.2 and plaintiff nos.2 and 3 are the children of plaintiff no.1 and defendant no.2. Defendant nos.3, 4 & 5 belong to the branch of

Rangappa the second son of the 1st defendant. Defendant no.6 is a married daughter of Basappa. The suit was filed in respect of immovable properties described in schedule 'B' and movables described in schedule 'C'. There is no dispute that all the properties are ancestral in nature. After recording evidence, the Trial Court decreed the suit partly holding that plaintiff no.3 and defendant nos.2 were each entitled to 1/8th share in schedule 'B' properties, out of the share of defendant no.2. It was also held that defendant nos.3 to 5 were together entitled to 1/4th share and defendant no.1 and defendant no.6 were entitled to 1/4th share each in schedule 'B' properties. No share was granted to plaintiff no.1 for the reason that she is the wife of defendant no.2 and in this regard it was held that during the lifetime of the husband, wife cannot claim partition. Plaintiff no.2 died during pendency of the suit. Aggrieved by allotment of shares plaintiff nos.1 and 3 are in appeal before this Court.

¶4We have heard Miss.Ranjita Raddi Alagawadi, learned advocate for the appellants and Sri Raghavendra Purohit learned counsel for respondent no.10.

¶5It is the argument of Miss.Ranjita Raddi that plaintiff no.1 would become entitled to share in the properties because according to Bombay School, wife can claim share whenever partition of the ancestral property takes place. She also submits that plaintiff no.2 died intestate during pendency of the suit. He died issueless. He was unmarried and therefore the share that plaintiff no.2 was entitled to, could have been allotted to plaintiff no.1 as she is class-I heir of deceased plaintiff no.2. In this view she argues for modification of the shares.

¶6Sri Raghavendra Purohit submits that according to Bombay School wife cannot claim partition during the lifetime of husband. Rightly the Trial Court has denied share to plaintiff no.1. Defendant no.10 is the purchaser from the 1st defendant. The suit should have been dismissed however defendant no.10 has not preferred any appeal. Therefore appeal is to be dismissed.

¶7We have perused the entire judgment of the Trial Court. Initially defendant no.2 takes 1/4th share and in this 1/4th share further divisions must be made. Plaintiff no.1 being

the wife of defendant no.2 is not entitled to claim share in the 'B' schedule properties as her husband is alive. But the Trial court could have allotted share of the deceased plaintiff no.2 to plaintiff no.1, as she alone is class-I heir of plaintiff no.2 in accordance with the Hindu Succession Act, 1956. Plaintiff no.2 was alive when suit was filed and his share was crystallized on the date of suit. He would have taken 1/3rd share out of 1/4th share (i.e., 1/12th) of defendant no.2. Therefore plaintiff no.1 would succeed to whole of 1/12th share of her deceased son. This is where the Trial Court has gone wrong and therefore judgment of Trial Court requires modification.

¶8So far as properties described in 'C' schedule of the plaint are concerned, the Trial Court has rightly held that their existence is not proved by the plaintiffs and even now the learned counsel for the appellants did not make it a ground of argument. Therefore we have not considered allotment of shares in 'C' schedule properties.

¶9With the above discussion, the following order is passed.

ORDER

¶1The appeal is partly allowed.

¶2Allotment of shares made by the Trial Court is modified in such a way that in the 1/4th share of defendant no.2-Mallappa, deceased plaintiff no.2-Vithal and plaintiff no.3 Sangavva would be entitled to 1/3rd share each i.e., equal to 1/12th. Plaintiff no.1 would be entitled to succeed 1/12th share of deceased plaintiff no.2. The shares allotted to defendant nos.3 to 5 and 6 remain intact. There is no order as to costs.

Sd/- (SREENIVAS HARISH KUMAR) JUDGE

Sd/- (T. G. SHIVASHANKARE GOWDA) JUDGE

EM LIST NO.: 1 SL NO.: 19