I IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 24 DAY OF FEBRUARY, 2011 PRESENT THE HON’BLE MR. JUSTICE N.K.PATIL AND THE HON’BLE MR. JUSTICE AM. VENUGOPALA GOWDA REGULAR FIRST APPEAL NO. 1257)2005 BETWEEN: SMT. KANNI SANNA HULUGAWA WIFE OF LATE KANNI HULUGAPPA AGED ABOUT 53 YEARS, dO NANIKERI BASAPPANAVARA MANE, 17TH WARD, JAMBANAHALU KERI, HOSPET, BELLARY DISTRICT-583201. 2. SRI KANNI RAMAPPA Sb ADIVANNEWA, AGED ABOUT 74 YEARS, 0CC: AGRICULTURIST, R/O BANADAKERI, DOOR NO.229 13Th WARD, HOSPET, BELLARY DISTRICT-583201. 3. SRI PARASURAM Sb KANNI HULUGAPPA AGED ABOUT 36 YEARS, 0CC: AGRICULTURIST R/O HOSPET, BELLARY DISTRICT-583201. 2 4. SMT. KANNI HEMA D/O KANNI HULUGAPPA AGED ABOUT 22 YEARS, REST. -DO- 5. SMT. KANNI SRIDEVI D/O KANNI HULUGAPPA AGED ABOUT 21 YEARS, REST. -DO 6. KANNI GANGAWA D/O KANNI HULUGAPPA AGED ABOUT 25 YEARS, REST. -DO- 7. SMT. ADIVANNEWA D/O KANNI HULUGAPPA AGED ABOUT 23 YEARS, REST. -DO- APPELLANTS (BY SRI SACHIN S.MAGADUM, ADV.) AND I. SMT. KANNI SAVITA W/O LATE KANNI SRINWAS AGED ABOUT 29 YEARS, 0CC: HOUSEHOLD WORK R/O 13TH WARD, DOOR NO.229 BANADAKERI, HOSPET, BELLARY DISTRICT-583201. 3 2. CHI. K S KARThIKA 5/0 LATE KANNI SRINIVAS AGED ABOUT 10 YEARS, 3. KUM. K S KEERTHI D/O LATE KANNI SRINIVAS AGED ABOUT 7 YEARS, (RESPONDENTS 2 AND 3 ARE MINORS REP. BY THEIR NATURAL GUARDIAN MOTHER SMT. KANNI SAVITA WIFE OF LATE KANNI SRINIVAS, RIO 13 WARD, DOOR.NO.229, BANADAKERI, HOSPET, BELLARY DISTRICT.) 4. SMT. BANGALI KORAVARA BASAMMA W/O HULUGAPPA, AGED ABOUT 43 YEARS, R/O NAGENAHALLI MUDLAPUR MAGANI HOSPET, BELLARY DISTRICT-583201. RESPONDENTS (BY M/S. CIRCUIT LAW FIRM, ADVS. FOR R1-R3; R2 & R3 REP. BY Ri; SRI C.M. DESAI, ADV. FOR R4) THIS RFA IS FILED U/S 96 CPC AGAINST THE JUDGMENT AND DECREE DATED:16.4.2005 PASSED IN O.S.NO.74/2001 ON THE FILE OF THE PRLCIVIL JUDGE (SR.DN.) & J.M.F.C., HOSPET, DECREEING THE SUIT FOR PAR liTtON AND SEPERATE POSSESSION. THIS APPEAL COMING ON FOR HEARING, ThIS DAY, A.N.VENUGOPALA GOWDA 3., DELIVERED ThE FOLLOWING: 4 a This appeal is by the defendants questioning the decree for partition passed by the Trial Court in the suit filed by respondents 1 to 3. For the sake of convenience, the appellants would be referred to as defendants and respondents 1 to 3 would be referred to as plaintiffs. The 4 th respondent was defendant No.3 in the suit. 2. The briefly stated facts are that on 11.7.95, plaintiff No.1, marrIed one Kanni Srlnlvasa. On that day, a marriage agreement is stated to have been executed by the parties, which was witnessed and then registered with the Sub-Registrar. Out of the wedlock, plaintiffs 2 and 3 were born. 3. Kannl Srinivasa died Intestate on 19.8.2000. Thereafter, the plaintiffs filed the suit seeking partition of the Immovable properties and sought separate possessIon of theIr share In the suit properties. According to the plaintIffs, Kannl Srinivasa had a share in the sultproperties 5 along with his mother, uncle and other family members. The family tree is as follows: ADIVENAWA I I KANNI RAMAPPA KANNI HULUGAPPA D2 (DEAD) KANNI SANNA HULUGAPPA (WIFE) Dl KANNI KANNI HEMA SRIDEVI GANGAWA ADIVANEWA PARAS SRINIVASA D5 D6 D7 D8 URAJ4 (DIED ON 19-8-2010) II I I KANNI K.S.KARTHIKA K.S.KEERThI SAVITA (SON) (DAUGHTER) (WIFE) 4. On the death of Kanni Srinivasa, his share was inherited by his mother and the piaintiffs. On this basis, the suit was filed seeking share in the suit schedule properties. 5. In the suit, defendant 1 was represented by learned counsel. Defendants 2 and 3 remaIned absent and were placed exparte. Defendants 4 to 8 ,ere impieaded 6 as necessary parties. Defendant 1 flied writen statement and defendants 4 to 8 adopted the same. The defendants denied the allegation made in the plaint more particularly the assertion of the plaintiffs that the 1 plaintiff is the legally wedded wife of Kanni Srinivasa and that plaintiffs 2 and 3 are their children. It was contended that, the plaintiffs are in no way concerned with the defendants’ family and that they are not entitled to any share In the plaint B schedule properties. It was alleged that, plaintiffs were never in possession and enjoyment of the plaint B schedule properties and there being no cause of action to file the suit, they prayed for dismissal of the suit. 6. The pleadings of the parties gave rise to the framing of following issues by the Trial Court: “1. Whether plaintiffs prove that plaintiffs are legally wedded wife and legitimate children of late Kanni Srinivas as alleged in the plaint? 2. Whether plaintiffs prove that plaintiffs and defendants constitute joint family and all suit 7 schedule B properties are joint family properties of plaintiffs and defendants as alleged in the plaint? 3. Whether defendants establish that 3 defendant is not necessary party in this suit as alleged in Written Statement? 4. Whether the defendants estabiish that piaintiffs do not have any iegal right to claim reilefs sought In the pialnt? 5. Whether the plaintiffs are entitled for reliefs sought? 6. What Order or decree?” 7. The suit having been posted for trial, the plaintiff 1 deposed as PW-1, her mother was examined as PW-2 and two witnesses who had attested the marriage agreement were examined as PW5 3 and 4. Exs.P1 to P26 were marked for the plaintiffs. The first defendant deposed as DW-1 and the 4 defendant deposed as DW-2. Arguments of the ieamed counsel having been heard, the Trial Court answered issue Nos. 1 and 2 in the affirmative 8 and 3 and 4 in the negative and 5 partly in the negative and as a result, has decreed the suit entitling the plaIntIffs to 3/56w share jointly in the plaint B schedule properties. It has held that, they are entitled for partition and separate possession of their share as per S.54 of CPC. 8. Plaintiff 1 / PW-1 deposed regarding her marriage with Kanni Srinlvasa and the marriage agreement — Ex.P1 and its registration as per Ex.P2, the certified copy of which is Ex.P20. Her mother — PW-2 also deposed regardIng the marriage and PW5 3 and 4 being the attestors to Ex.P1, deposed regarding the marriage agreement and its registration. On the other hand, DW5 1 and 2 deposed that none of them or their relatives attended the marriage and that Ex.P1 did not prove that a valid marriage had taken place between the 1 plaintiff and late Kanni Srinivasa. 9. The Trial Court came to the conclusIon from the evidence of PWs 1 to 4 and Exs. P1, P2 and P20 that, the marriage between the 1 5t plaintiff anc{ Kannl Srinlvasa 9 as having taken place and that the birth certificates Exs, P3 and P4 showing the birth of plaintiffs 2 and 3 out of the wedlock between the l plaintiff and late Kanni Srinivasa. The evidence of PWs 1 and 2 having been corroborated by PWs 3 and 4 and the documentary evidence, the Trial Court has concluded that, the 1 plaintiff and late Kannl Srinivasa have married in accordance with law, Finding that, plaint B Schedule properties are joint famfly properties and that Kanni Srinivasa had a share, decreed the suit entitling the plaintiffs for iegitimate share. 10. Sri Sachin S. Magadurn, learned advocate appearing for the appellants contended that, the marriage of the l plaintiff with Kanni Srinivasa taving not been established and they Lelnn Hindus, the alleged marriage having been registered under the Special Marriages Act as per Exs,P2 and P20, there is no valid marria.ge and hence, the decreeing of the suit by the Trial Court is erroneous. However, learned counsel rightiy conceded that, if the said contention were to be answered against the appellants, the 10 other findings i.e., plaint B Schedule properties being joint family properties and liable for partition and the entitlement of the plaintiffs as determined by the Trial Court in the Impugned decree, does not call for Interference. 11. Learned counsel appearing for respondents 1 to 3 on the other hand, by taking us through the evidence on record contended that, the findings recorded by the Trial Court In the Impugned judgment are well supported by the evidence, both oral and documentary and the fact of maniage of the 1 plaintiff with late Kanni Srlnlvasa having been duly proved, no Interference In the matter Is called for. 12. The main points for determination are: (a) Whether the plaintIff No.1 has proved her marriage with Kanni Srinivasa and that the plaintiffs 2 and 3 are born out of their wedlock? (b) Whether the Trial Court was justified In passing the impugned Decree? ‘-S 11 13. The evidence of PWs 1 to 4 and Ex.P1 would clearly establish the marriage between the 1 g plaintiff and late Kanni Srlnivasa having taken place and having been registered with the Sub-Registrar on 11.7.95 as per Ex.P2/ P20. Exs.P4 and PS would show that, plaintiffs 2 and 3 are the children of 1 plaintiff and late Kanni Srinivasa. The marriage having been registered, Exs.P1, P2 and P20 being registered documents would rest on their presumption of correctness. Ex.P4 and P5 being birth certificates are admissibie in evidence. PWs 3 and 4 have witnessed Ex.P1 at the time of presentation of the same before the registration authority who having registered the marriage, has issued the marriage registration certificate as per Ex.P2 and the certified copy of Ex.P2 is Ex.P20. The evidence on record cieariy estabiishes that marriage between the Vt piaintiff and late Kanni Srinivasa has taken piace. There is direct evidence on record in proof of the marriage. The defendants have not placed any credible evidence to hold that the evidence of PW5 1 to 4 and the 12 documents which have been marked through them with regard to the proof of marriage, to hold otherwise. 14. For the purpose of aniving at a conclusion as to whether the valid marriage has been performed or not, the Court would be entitled to consider the circumstances thereof. In the instant case, as already noticed, there is direct evidence of PWs 2 to 4 In proof of marriage between late Kanni Srinlvasa and the 1 plaintiff having been taken place. Learned Trial Judge having tightly considered the oral and documentary evidence on record, was justified in answering issue Nos. 1 and 2 In the affirmative. 15. The marriage of the 1 plaintiff with Kanni Srinlvasa having been proved, the suit properties having been also proved to be the joint family properties, in whIch late Kanni Srlnivasa had a share, being a member of the family of the first appellant, the plaIntiffs have been rightly held to be entitled to a share in the plaint B schedule properties. The determination of the share and the entitlement of the plaintiffs is in accordance with law. 13 16. Having re-examined record, In our opinion, the Trial Court has correctly appreciated the evidence and the findings recorded and conclusion drawn by It in the Impugned Judgment Is well founded. The one and the only conclusion which can be arrived at on the basis of appreciation of evidence on record is the one which the Trial Court has arrived at in the Impugned judgment, which has resulted in the decree for partition being passed. No exception can be taken either on facts or in law, to the impugned Judgment and Decree passed by the Trial Court. In the result, the appeal is devoid of merit and shall stand dismissed. However, the parties are directed to bear their respective costs. JUDQg Sd/ JUDGE sac*