RFA No.1362/2004 C/w RFA No.1 L3/2005 1 IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT DHARWAD Dated this the 5°’ day ot July 2011 Preseni THE HONBLE MR JUSTICE N.KUMAR AND THE HON’BLE MR.JUSTICE ARAVIND KUMAR NoJ362 2004 C/w 05 In RFA. I\o.1362!2004 BETWEEN: Sri. Rajakumar Son of Parasanagouda Path A.ed about 38 years 0cc: Service, resident of LJantoI Taluka Saundarti Di.strict Beigauin Appei.iant By c’ MalhkaIjuIlsWamV EHirernath Hr Sri. Muru$hendra SJVammuri Advocate) RfI\ No.1362/2004 C/w RFA No,1 13/2.005 2 AND: Smt Renawva, Wife of Parasanagouda Pab1, Aed about 61 vears.Occ: Agricu1ture. resident of Ugargol, Taluka. Saundatti, INoW residing at HaiaktlsuQal. Taluka Navalgund. 2. Sr it. Drakshavani U Basavva Wife of Yallappagouda Rayanagoudar. Aged about 4 1 years. 0cc: Agriculture. Resident of I Iaralaka.tti, Taluka Saundatti, Dist: Beigaurn. 3. Suit. Karnalawwa Parasanagouda Patil, aged about 58 years, 0cc: Household work. resident of Ugargol, Taluka Saundatti, Dist: Belgaurn. 4. Sri Basanagouda ParasanaLouda PaUl. aged about 34 years, 0cc: Agriculture rest do 5. Sri. Shankaragouda Parasanagouda Pat.i1, aged about 22 years. Rest U STIll Parvat.ewwa. Wife of S.h.ivabasappa Nftidhol, UC( Li)fl ‘ d S U(’ \ IC’ R/o Ha1eU3abbur, Taluka HuSh. Dish Dharwad. , Responc1ems RFA No.1362/2004 C/w RFA No. 113/2005 3 (By Sri. Jagadish Patil, Advocate for RI and R2; Sri Mallikarjun CBasareddv, Adv.. br R3 to R5: R6 — serveo) This regular first appeal is Itled under Section 96 of CPC against the judgment and decree dated 3. Ii .2004 passed in O.S,No,28/i996 (Old No.15/91) on the file of the Civil Judge (Si Dn ) aundatti pait1 d i eung the suit liled b the respondents 1 and 2 herein and rejecting the counter claim made h the anoellant herein r mntri hic legitirn’ite sh n e o the suit schedule properties. i.F.A..Ii3OO5 BETWEEN: 1. Srnt. Kamalawwa Parasanagouda PaUl. aged about 63 rears Ccc: Household work R/o Uglargol Taluka Saunda1ti59OOI0 2. Basanagouda Parasanagouda Patil, Aged about 39 xrears, 0cc: AgricuH nrc R 1 Uaroi I Taluka Saundatti59OOiO 3. Shankaragoucia Parasanagouda Aged aboui 27 years (at the time of filing the suit, THu or represented by M/G by his mothe.r Smt. Kamalawwa Parasanaouda Patil Deft.. Ii .3 ‘a - IL’. (I ) 4SW I p I U1 i hW 0 p, IjI 10 p ‘It WI I I, I 4’ C, a RFA No.1362/2004 C/w RFA No.113/2005 5 This regular first appeal is Illed under Section 96 of CPC against the judgment and decree dated 3. ii .2004 passed in OSNb,28/ 1996 (Old No, 15/91) on the file of the Civil Judge (Sr.Dn.). Saundatil, partly decreein the suit filed by the iespondents I and 2 herein b holdrn$ that iepondeni iio I o entitled for partition and separate possession, and etc. These appeals coming on for orders this day, N.KUMAR, J, delivered the following: JUDGMENT Misc. Civil Application filed for early hearinil is allowed. Misc. Civil Application for additional evidence producin certified copy of the judgment and decree in O,S.No,63/ 1989, which is not in dispute. is allowed and the same is taken on record. R F.A. No. 1362/2.0( 4 is au appeal filed by 50 defendant in th.e suit ch.ailentin the judpn.tent and dec.ree of Tr.iai Court winch has held t..hat. .1.ie is not the m of the propositi.Is and therefore, he is not entitled to any share in any of the so it sehedu],e properties. R. F.A. No.1 13/2005 is an a.ppeai filed by ao I cha lit ngn 1 p JJmt 01 10(1 00 Ice of RFA No.1362/2004 C/w RFA No.113/2005 6 Thai Court, which has granted share to plaintiff No. I. the wife and plaIntiff No.2. the daughter of deceased propositus. These two appeal arise out of common judgment and decree. Hence, both appeals are taken up for consideration together and disposed of by this common order. 2. For the purpose of convenience, parties are referred to as they are referred to In the original suit. 3. Subject matter of the suit is 5 items of agricultural lands situated at Ugargol village, Saundatti ‘Ibluk and one item of agricultural land situated at Harlapur village, Saundatti Taluk, as described In ‘A’ schedule properties; three Items of agricultural lands are situated at Ugargol village, Saundattl Taluk, as described In ‘B’ schedule properties; ‘C’ schedule property is a house property; ‘U schedule properties are sites situated at Ugargol Mandal Panchayat; ‘E schedule properties are the movables: ‘F’ schedule properties are a revolver and a RI/A No.1362/2004 (/7w RI/A No. 113/2005 ituri: ‘0’ schedule property is Fixed Deposit: and 1-1’ schedule property is golden ornaments, 4. Case of the plaintiffs is that all the suit schedule properties heloni ro late Shri Parasanatiouda Basana Goudar Kurda @ Paid of Ugargol. Plaintiff No. I is the 1etallv wedded wife of late Shri. Parasanagouda Basanagouda Path and plaintiff No.2 and defendant No.4 are the only two daughters of plainlill No. I and late Shri. Parasanagouda. Sri Parasanagouda expired on 1.1.1989 leaving behind them as his only survivinr legal heirs. 5. Sri Parasanagouda had fhilei in love with defendant No. I in 1961 , She was brougut home inspire of the OO51tiOfl made hx.’ iaintiff No. 1. Plaintiff No. 1 was constrained to lead unhappy life with her husband Parasanagouda for .(ew years. After perfbr.miry5 marrir.ge of her daughters i.e., plaintiff No.2 and defendant No.4, pia.intiff No.1 wsc compelivd to lvave the hou.se of her hu.sband, as she was RFA No.1362/2004 C/w RFA No.113/2005 8 Ill-treated by him at the Instigation of defendant No.1. She had to live with her daughters or with her mother. Defendant No.1 Illegally claims to be the wife of late Shri. Parasanagouda. Defendant Nos.2 and 3 also claim to be the sons of late Shri. Parasanagouda Paul born through defendant No.1. There Is, absolutely. no legal marriage between them. Defendant Nos. 1 to 3 have managed to get their names entered to some of the suit properties mentioned In the schedule, without any legal right, taking undue advantage of the family circumstances and by exercising fraud. misrepresentation and undue Influence on the husband of plaIntiff No.1 and the village officers. Defendant Nos. 1 to 3 are In ifiegal and unlawful possession of all the suit properties except the weapons deposited In the safe custody. Defendant Nos. 1 to 3 have managed to get heirship certificate from Tahslldar, Illegally claiming themselves as the legal heirs of late Shrl.Parasanagouda Paul. The said certificate dated 20.06.1989 Issued In this regard is ifiegal and void ab initlo. By such certificate, they have not acquired any right, title or Interest over the suit properties. Plaintiffs have got 2/3” share RFA’lo 1362/2001 C aRFANoI13/2005 9 in all the suit properties and defendant No.4 has got 1/31 share in the anir iointh Plaintllf% requested the defendiuits to ghe theft share in the suit properties to tile extent of 2/3” share to which they are entitled. and to settle the matter amicably in person as ixll as through elders but in 4am Therefore, thei’ were constrained to ifie a suit for partition. They sought a declaration that thc’ re the only legal heirs of late Skirt. Parasanagouda Paul and are entitled to shares. 6. lnhiallv. 5th defendant was not made a parti to the suit. An application caine to be tiled b3 5111 defemidant to get himself impleaded ts party tc thc suit. as 5” defendant which applic ati 1 va tilowed at d s if plc uicd as 5 lefendant ‘-lowc c ilan ills id not mend h plaint a raix ar avciiuem j to! 5”dtf 1 a I I At .t ‘‘ rlct ‘4 %1 1 r7 11 •r 1 7•% •h tenriant Nt ” I bwt fik’ a cir’vior’ r’tren stater aCt’! lIu dcii’ d liz L w”v cart r J’ . yral,( i h’ ii. • a’. “a.. ‘ Li it f.; RFA No.1362/2004 C/w RFA Nal 13/2005 10 ccle, Java motor cycle, fIxed deposit and 50 tolas of gold as mentioned in die schedule Alter snecificaiiv denvin all the alieations made in the plaint. they have setout their case from paraLraph 10 orwards In iagraph 1 0 of their written statemenL 111ev have pleaded that defendant No.5 is not the son of deceased Parasana&ouda. therefore, he has no legal right to claim any share in the properties left by deceased Parasanagouda; 5th defendant’s mother Vajrabi is not the with of deceased Parasanagouda and there is no marriage between them at any point of time. she has not led matrimonial hfe with deceased Parasanaouda and defendant No.5 is not born to then and ihev are not relal ed to the family of Parasanaouda: defendant No.5 and his mother are permanent. residents of Gadag and defendant No.5 s not Rajakumar but his name is Rajesab and both of theni belong to Mo.h.anunedan religion; Smt.Vajrahi is a recognised artiste in folk dramas, who has s.cted in famous drama. companies of Basavaraj Mansoor of Dharwad., Jar. khandi Company. Padesur Company and Sharada. Company. Gokak. and also a.cted in enai Balappa’s REA No.1362/2001 (‘/‘.v RF’A No.113/2005 11 Drama company etc.; she has also acted in number of dramas like ‘Chitrangada’, ‘AK hmbara’, The said Vjrabi’s name is Vajrabi Man.soor and is a permanent resident of Gadag. She ave birth to defendant No.5 on 18.6.1985 at SadLun.1 Maternity & Nursing Home. Station road, Gadag at Dr.RRdoshi’s Hospital. The said detbndant No.5 is not born to deceased Parasanagouda and his mother Vajrabi did not lead any matrimonial life with Parasanagouda Path, Under the above said circumstances. defendant No.5 has no legal right and locus stamli to claim share in the properties ol deceased Parasana2ouda and defendant. Nos. 1 to 3. 8, Purther, the contended that plaintiff No. I is not the wife arid plaintiff No.2 and defendant No.4 are not the daughters of late Shri. Parasanagouda Patil. The c.iaim put (1 1 e 1t na Piaint.tf No. I is not the married uTile oF deceased .Parasana.riot.,.ida atil a d no marriage ceremony is field with plaintiff No, 1. and Par .isanagouda. Plaintiff No, 1 has: not RFA No.1362/2004 C/w NEA No.113/2005 12 resided with deceaed Parasanaouda and has not led any matrinoinaJ life and she is no recotniseci. respected or accepted as the wife of deceased Parasanagouda Patil by Parasanagouda Patil himself during his lifetime and all other members of his family including defendant Nos. I to 3. Plaintiff No.2 and defendant No.4 are also iot recoLnlised as daughters of deceased Parasanagouda during the life time of Parasanagouda and, after his demise by the Society as well. Unless, plaintiff No. I proves her marriage with deceased Parasanaouda and pat erniw of plaintiff No .2 and defendant No.4. plaintiffs have no legal right to claim any share in the properties left y decr.ased Parasanagouda. Plaintiff o. 1 is residing perma..n.ently at Halakusugal viflage .in Navalgund Taluk, she is the cIauLhtcr of one Basaupa Gaili and Smt. Basavva. Plaintift No. I. is the only daughter ni the said Sme Basavva and Basappa Gaili., Sa.id Basappa Galli wa.s the brot.her of deceased Pa.rasanagouda Patti’s mother and, as c[ç:I said Basappa Galli happens to be .sodara of tieceaseG Pa asan or1 (1 PaIi.i Said .uasapua alP expired long RFA No.1362/2004 C/w RFA No.113/2005 13 back leaving behind him his wife and plaintIff No.1 as his legal heirs. Plaintiff No.1 and her mother Basavva have inherited about 40 acres of agricultural land and also house properties as legal heirs to the deceased Basappa Galli. PlaIntiff No.1 is residing at Halakusugal village from the time of her birth till today. She used to lookafter the said properties. She has got those properties transferred in the names of other person with an intention of retaining those properties for herself and for her daughters. The properties. which are clearly set out in paragraph 11. was inherited from her father and they are also liable to be thrown into the hotch pot for effecting partition. Unless the plaintiff puts the above said properties into the hotch pot and include all these properties in the suit, suit filed by the plaintiff is not maintainable and same deserves to be dismissed. 9. They further contended that deceased Parasanagouda Patil married defendant No. 1-Karnalavva at Shree Yellamma Devasthan on 28.05.1958 Wednesday at 10.23 L RFA No. 1362/2004 C /w RFA No 113/2005 14 a rn.) After i 1w said riarriae. elndan1 no, 1 ‘anie ii reside w ih cieceasecl Parasaiia&oina Patu mid I hey leO iiappx niarrirnonial life Dclbidarn Nos2 and 3 were born to theni. Defendant no 1 is the legally married wife of deceased Parasanagouda PaUl and defendant Nos2 and 3 arc ih legitimate children of deceased Parasanagouda PaUl Defendant os. I and 3 arc in lawful possession arid enjoyment of soil ‘-cliedu1e properties The deceased ParasdnaQouda Path effected partition in his larnilv properties duriHg 11w year 1973 and in I he said partition, properties, which are allotted to share of defendant o 2 arc sd out in the said paraiirapli. in view 01 tile said partitin 21t1 defendant became cxelusUc ottner in ossessi r of he pi prrlt Deft ndant o 2 was mm durmnL he y a 1 3 / vh n he ro ( rh t ai tO n 0 Ih refore dctcndai c m e I to eultirate tt ii ic and a tc t nmno no, 3 ft jr4 \e,3 s n r’ a C 5 a’ mUffs arU 4ett—td: 4 ed ‘3 5mr’. a !io,ai ‘n}i ad o’’ S Idilfi slid ‘5’ ii e a na r w , \11e I a ti ai S a ,1irm I “ “ R[5-\ No. 1362/2004 C/xv RFA No.113/2005 15 ar-id :3 also came to be entered iii I he (raina Panc’havat records in reuect ol house properties. vhieli shows that they are in lawlul possession and rnjo inent of the same. Defendam No.5 in collusion with some of ilhwishers in the village, with an iriftnuoii of gulping th. cntir propert started ontcndirig illegally as one of the legal heirs of Parasanagouda. Therefore they filed a suit against defendant No 5 and his mother before the Principal MunsifCs Court, Bc igaurn for a declaration and injunction The suit is still pending before the Principal Munsiff s (ourt arid, thereforc defendant No.5 and his mother have rio legal right to claim share iii the suit schedule properties Defendant No 5 has no lix is standi in this uit ti claim an’ share Plain lIls and dc1endait Nos -t iid 5 hatched lip a Ian to 2 tip rue propel ties 01 innocent deieidani’ I to .3. 5 lit sileS it Lflo i’tarit c of OiTh bro I eicncnts $ Iho viiiaai (IJiHI ri to j a 1. 1h-ii1nt ‘i c ccjia I !iu ijir RFA No.1362/2004 (1w kF. NO.113/2005 16 10. Defendant No.5 filed a separate written latement though he admftted iiiat rim suit propert in lwlc,1uL to devea%ed Parasanagouda Patil, lie denied that %Llit properties iie Joint family propertle of plaintlifa and defendant No.4 only lie admittc d that plaIntiff No.1 is the legally weddcd wile of thc deceased Parasanagouda Paul. but denied that plaintiffs and defcndant No. I arc the only surviving legal heirs He specifically contends that he is born to deceased I’araanagouda Paul out 01 the wedlock with Smt.Vajrabl l’hexcforc he haq got legitimate share in the suit proputies the haic claimed by plaIntiffs and defendant No 4 is not admitted Then Ion hc also sought for a legitimate ‘hare ir dx ‘lUIt %chedule piopehes. 11 . Tj the lufln At dii atniesaid PItadlIit%. tHaI Court. tr.i!nt’ t I JiJttt i atilit iif S. ‘Vflic’h iJ( Ij% ijndt i 11 hc’rht rl)zUs iiut? thtqacclpn. int’l dt’t’ 3 .‘ flit!?, !E’qn? h’ 11% “1 ilk’ tfri t’t’l !.jrr.% ,r, J.4:rJ’ ISnLd.tI i’cJfl’Gr,l Ifilf 4 fIr. NFA No. I 3(32/2001 (7w RFA No 1 13/2005 17 2. 7iether plft/ Jirtkc’r pi ni’e that deli I is 1101 th k qahij w ddcd it ift and deJls and (1K lint (lie lccjitirnatc sans of 1 ctras at 2. 1 VI tether pl/t.s iirov€ (hat mutations 0/ ncinzes of deh 2 rind :3 over the suit properties mentioned at paraNo2B and 2D are illegal 0 4. Whether pi/js prove rhcit sini properties arc jointfamily properties of themselves and deft 1 only. liable for partition? 5. Xl7iether def 5 proves that lie is the son born in deer ased Pat asanagouda Patti and is ‘niitled La his leqitimcttr share over the situ properties’ Xi7ietler pit/s jwovt that thou are can (led fr 2 3 JaiL’ Jo viii and lvii 4 is mUtt I Jar 1 a 1 op vi I 7/7 Ii)fl 1 t ta -n’vkct T fl V fIN RFANo 1362/2004 C /w RFA NoJ 13/2003 18 8 Whir thor vcduetion of flu suit orid ourr fir jcud is propr ) U7iat Order or leciic ?‘ In order to establish their case plamnffs examined 2” plaintiff as P I and they also examined t o independent witnesses as I W2 and 3 and produced 19 documents which are marked as Lxs p i to p 19 On behalf of the defendants, I lcfendant w is examined a D W 1 they examined a witness as D W 2 3’ defendant ia cxamined as D W 3 and his mothei as D W 4 Defendants it all uor’uced 12 a locurnents hi h are markc d six I o)12 p c p ff PC N I RFA No.1362/2004 C/w RFA No.113/2005 19 Palii at all, flit’ evidence on record %hov’. that 1’ defeiiclani ias mained to Parasanagouda Patti ‘md defendants 9 and ‘3 were born to them. Plaintifis 1iae lafled to prove that mutation of twines of defendant Mos.2 and 3 over the cult propcrtie is illegal Further, tht failed to prove that suit properties are the Joint lamnilv properliec of themselves and defendant No.4 unIv and defendants have no right in the sun properties. Defendant No.5 has failed to prove that he is tile son born to deceased Para.sanagouda Paul and consequently failed to prove that he i entitled to legitimate share in thc properties then tnal Court proceeded to allot shares In favour of the panics to the suit as se’ out in the iudgment. It also held that plalntiff% and dc fendan ‘%c ‘rc not entitle I foi am mesa profits Thus t ciecn’ed thc’ ‘.iiil of the plaintift for panltior’ anti ‘eparntt po c s lot j.anh rnc tic Id ha p1 mint ft o i’ cii 11cc 1 I’ 1k) s’ircwcrih t 9ffl%. ‘.i,4fIic)j ( flti;k 1 tr ‘ . ,ff)’ 4,arr ‘iiil re’,; ot O’r t lahu 4 Ih( DklmPTltI I “ flicif itt r RFA No. 1362/2001 C/w RFA No 113/2005 20 partition was also dismisscd It is against the said judgment and dcci e. i 1it iho’esacI Iwo a ppeai ire tiie I 13 Learned counsel appearing for the 50 defendant assailing rh impugned judgment arid decree contends that documentary evidence produced in this case coupled with the admission oI plainlifl No.2 aHd her witnesses clearly demonstrates that deceased Parasanagouda Patil wac living with I).W.4. I he mother of 50t defendant. under a conimoii roof as huhaml aiid wife and 5 de1ndani was born 10 them. Even if the marriage of deceasd Parasanagouda Patil with the mother of 5 defendant s held to b illegal as on that day th wilu ‘a vorv mntch alive. 5 defendant, evtn if lie jc ‘011511 ned a’ 1lcgiun it e hild. would be cniitlcd to a share in ic ( par I pc t I F tr r r ig) Ii bit 1 1 t ft Irla] C urn [omI.(Il . i’ . r m 0riiia te i i,rr die ‘rn P’rata Putb in ‘ 3 ll\ ii C I alt r ifl nil C JuL aert RF’A No. 1362/2004 C/tv RFA No.113/2005 21 14. Learned counsel appearing br defendani nos. 1 to 3, on the contrary, submitted tha.t trial Court has cons.idered both oral and documentary evidence on record nnnulelv and has &iiven cogent reasons for rejecting the documentary evidence and has recorded a binding that 5° d.eftmdant has failed to prove that he is the son of Parasanagoucla Patil and the said finding is based on legal evidence, do not call for any interference. He further contends, in the first instance, marriage of i plaintiff with Parasanagouda Patil is not proved and. therefore. plaintill No.2 and defendant No.4 are not the daughters of Parasanagouda Patil and 1hev have no right over the suit schedule properties, in the alternative, he submitted that in plaintiff was married prior to 1956 a.nd plaintiff No.2 and defendant No.4 were born prior to 1956 and, therefore, t.hey have no right to cla.im. share in the property of Parasanagouda, Therefore, Trial Couri. cornmiUcU serious error in grantin1 share in favoi i r ol ulaint.iff To.2 and defendant no.4. He. a.iso on endcd as plairiti.flP have. not rcfdrre.d. a.ny appeal chnllenging the allotment of shares to t..hcm, thi.s Conrt cannot, RFA No.1362/2004 4 C/w RFA No.113/2005 22 under any circumstances, alter the share to the disadvantage of defendant Nos. 1 to 3. Therefore, he contends that allotment of share to the plaintiff Is to be set aside and the suit of plaintiff is to be dismissed. 15. In the light of the aforesaid facts and rival contentions, the points that arise for our consideration in this appeal are as under I) Whether the finding recorded by Trial Court that 5” defendant hasfailed to establish that he Is not the son of Parasanagouda Pail1 call for any Interference? II) What Is the legitimate shore to which the parties to the suit are entitled to on the death ofdeceased Parasanagouda Paul? POINT NO.1 16. In the entire plaint, there Is no reference to 5th defendant After the filing of the suit, 5th defendant got himself Rl’A No.1362/2003 (‘iw RPA No. 1 13/2005 23 impleaded as the son of Parasanagouda Pahi as a peion who is entiTled to leii imate share in the i in properl je as. admittedl all I lie plaint sd icdule properties belonged to Parasanagouda Pal ii. Deft’ndant Nos. 1 to 3. in their wriT ten statemefl. denied the relal io11iTip of 5 defendant with Parasanagouda Patil and stoutly denied his claim br a share in the suit selied ole property. In fact. 2’’ plaii it iff. iii the course Of evidence dealing with relationship of 5hi deR’ndant with Parasanagouda Paul. stated that she do not know anything about l)eft No.5 and his mother Vajrabai, Bul . in the cross examination she stated that late Parasanagouda was staying in the Iious bearint.t VPC No 4(39 at Utarol viilae: it was true that defendani o S Rau nas s1aing ii the aid house She Joe’, lot know that a lady hi name 1 ajii iba xi ac si ai iiwf ln the aid ho lS along nil ii f’aras;xnaeoi’ia F uriher. she tias stated a I a ci xi 4 o ii Pai tau1 r ida ird ds( ci a 1ax tor- un1e Jrne. 4w ais wHt i( ( hi ha at 4 .wa jt -S I .1 -Sea RFA No 1362/2004 C wRFANoAI3 2005 24 of their relation Howei or sht dernt s th it late Pat isanagouda ha mamed ajirhai She admits th it defendant No Rig sah ii as studying in school at t gargol She pleads ignorant c that in the school records name 01 Parasanagouda is shown is lather of deft ndant No 5 b) Plaintiffs examined a witness by name Yellappagonth Ra anagonda Rayanagondar aged about 92 ears as P W 2 in cross examination, he has stated that he do not know that defendant No S Rajknmar is son Eif Parasanagonda But he ohinteen d to state that said Rajknmar ii s residing in the e f I ar inagoi da lie al 3 admits tha one ady by name in i ii ia siding n the fuse flnr-u.unugiuud He dne nit to dit dijic a n Ta a lii C