BASAVARAJ v. AGRICULTURE

Judgment

2. NINGAPPA S/O. DODDASANKAPPA SOMANNAVAR, SINCE DECEASED, LRs., ARE ALREADY ON RECORD AS APPELLANT NO.2 AND RESPONDENTS NO.1 TO 4 VIDE ORDER DATED 05.09.2023. SHRI. NAVEEN S/O. NINGAPPA SOMANNAVER, AGE: 33 YEARS, OCC: AGRICULTURE, R/O: VAKKALUTAN ONI, SAUNDATTI-591 126, DIST: BELGAUM. (BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE FOR APPELLANT NO.2) …APPELLANTS AND:

1. SHRI. SANKAPPA S/O. NINGAPPA SOMANNAVAR, AGE: 49 YEARS, OCC: AGRICULTURE, R/O. VAKKALUTAN ONI, SAUNDATTI - 591 126, DIST: BELGAUM. K M SOMASHEKAR SOMASHEKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH 11:43:58 +0530 - 2 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015

2. SMT. YALLAWWA W/O. NINGAPPA SOMANNAVAR, AGE: 69 YEARS, OCC: HOUSEHOLD, R/O. VAKKALUTAN ONI, SAUNDATTI-591 126, DIST: BELGAUM.

3. SHRI. BASAVARAJ S/O. NINGAPPA SOMANNAVAR, AGE: 43 YEARS, OCC: AGRICULTURE, R/O: VAKKALUTAN ONI, SAUNDATTI-591 126, DIST: BELGAUM.

4. SMT. LAXMAVVA W/O. NINGAPPA KANAJ, AGE: 68 YEARS, OCC: HOUSEHOLD, R/O: DODDA ONI, HOMBAL-582 204, TQ AND DIST: GADAG.

5. SMT. SIDDAVVA W/O. BASAPPA @BASAVRAJ HALLAD, AGE: 69 YEARS, OCC: HOUSEHOLD WORKS, R/O. HALLAD ONI, NAVALAGUND, TQ: NAVALAGUND-582208, DIST:DHARWAD.

6. SMT. SHANKREVVA D/O. BASAPPA @ BASAVARAJ HALLAD, AGE: 29 YEARS, OCC: HOUSEHOLD, R/O: HALLAD ONI, NAVALGUND-582 208, DIST: DHARWAD. …RESPONDENTS (BY SRI. SHIVARAJ S. BALLOLI, ADV. FOR R1; SRI.MRUTYUNAJAYA R.YARAGAMBLIMATH, ADV. FOR R2 AND R4; SRI.SURAJ M.KATAGI, ADV. FOR SRI.V.G.BHAT, ADV. FOR R3; NOTICE TO R5 AND R6 ARE SERVED) - 3 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W. SEC. 96 OF CPC 1908., AGAINST THE JUDGMENT AND DECREE DATED

31.07.2014 PASSED IN O.S.NO.45/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, SAUNDATTI, DECREEING THE SUIT FILED FOR PARTATION AND SEPARATE POSSESSION. …APPELLANT IN RFA NO.100211 OF 2014: BETWEEN: BASAVARAJ S/O. NINGAPPA SOMANNAVAR, AGE: 44 YEARS, OCC: ADVOCATE AND AGRICULTURE, R/O: VAKKALUTAN ONI, SAUNDATTI, DIST: BELGAUM-591126. (BY SRI. SURAJ M.KATAGI, ADVOCATE FOR SRI.V.G.BHAT, ADVOCATE) AND:

1. SANKAPPA S/O. NINGAPPA SOMANNAVAR, AGE: 50 YEARS, OCC: AGRICULTURE, R/O. VAKKALUTAN ONI, SAUNDATTI, TQ: SAUNDATTI, DIST: BELGAUM-591 126.

2. NINGAPPA S/O. DODDA-SANKAPPA SOMANNAVAR, AGE: 72 YEARS, OCC: AGRICULTURE, R/O. VAKKALUTAN ONI, SAUNDATTI, TQ: SAUNDATTI, DIST: BELGAUM-591 126.

3. SMT. YALLAWWA W/O. NINGAPPA SOMANNAVAR, AGE: 70 YEARS, OCC: HOUSEHOLD WORKS, R/O. VAKKALUTAN ONI, SAUNDATTI, TQ: SAUNDATTI, DIST: BELGAUM-591 126. - 4 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015

4. NAVEEN S/O. NINGAPPA SOMANNAVER, AGE: 34 YEARS, OCC: AGRICULTURE, R/O. VAKKALUTAN ONI, SAUNDATTI, TQ: SAUNDATTI, DIST: BELGAUM-591 126.

5. SMT. LAXAMAVVA W/O. NINGAPPA KANAJ, AGE: 69 YEARS, OCC: AGRICULTURE, R/O: DODDA ONI, HOMBAL, TQ AND DIST: GADAG-582101.

6. SMT. SIDDAVVA W/O. BASAPPA @BASAVRAJ HALLAD, AGE: 69 YEARS, OCC: HOUSEHOLD WORKS, R/O. HALLAD ONI, NAVALAGUND, TQ: NAVALAGUND, DIST:DHARWAD-582208.

7. SMT. SHANKREVVA D/O. BASAPPA @ BASAVARAJ HALLAD, AGE: 30 YEARS, OCC: HOUSEHOLD WORKS, R/O: HALLAD ONI, NAVALAGUND, TQ: NAVALAGUND, DIST: DHARWAD-582208. …RESPONDENTS (BY SRI. SHIVARAJ S. BALLOLI, ADV. FOR R1; SRI.M.S.WANTAMURI, ADV. FOR R2 AND R4; SMT.ARADHANA MANVI, ADV. FOR SRI.JAGADISH PATIL, ADV. FOR R6; NOTICE TO R3 AND R5 ARE SERVED; NOTICE TO R7 IS HELD SUFFICIENT) THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W. SEC. 96 OF CPC 1908., AGAINST THE JUDGMENT AND DECREE DATED

31.07.2014 PASSED IN O.S.NO.45/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, SAUNDATTI, DECREEING THE SUIT FILED FOR PARTATION AND SEPARATE POSSES0SION. - 5 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 IN RFA CROB. NO.100002 OF 2015: BETWEEN: SMT. SIDDAVVA W/O. BASAPPA @ BASAVRAJ HALLAD, AGE: 68 YEARS, OCC: HOUSEHOLD, R/O. HALLAD ONI, NAVALGUND-582208, DIST: DHARWAD. …CROSS-OBJECTOR (BY SMT. ARADHANA MANVI, ADVOCATE FOR SRI.JAGADISH PATIL, ADVOCATE) AND:

1. SHRI. SANKAPPA S/O. NINGAPPA SOMANNAVAR, AGE: 49 YEARS, OCC: AGRICULTURE, R/O. VAKKALUTAN ONI, SAUNDATTI - 591 126, DIST: BELAGAVI.

2. SHRI. NINGAPPA S/O. DODDASANKAPPA SOMANNAVAR, AGE: 71 YEARS, OCC: AGRICULTURE, R/O. VAKKALUTAN ONI, SAUNDATTI, DIST: BELAGAVI.

3. SHRI. NAVEEN S/O. NINGAPPA SOMANNAVER, AGE: 33 YEARS, OCC: AGRICULTURE, R/O: VAKKALUTAN ONI, SAUNDATTI, DIST: BELAGAVI-591 126.

4. SMT. YALLAWWA W/O. NINGAPPA SOMANNAVAR, AGE: 69 YEARS, OCC: HOUSEHOLD, R/O. VAKKALUTAN ONI, SAUNDATTI, DIST: BELAGAVI-591 126.

5. SHRI. BASAVARAJ - 6 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 S/O. NINGAPPA SOMANNAVAR, AGE: 43 YEARS, OCC: AGRICULTURE, R/O: VAKKALUTAN ONI, SAUNDATTI, DIST: BELAGAVI-591 126.

6. SMT. LAXMAVVA W/O. NINGAPPA KANAJ, AGE: 68 YEARS, OCC: HOUSEHOLD, R/O: DODDA ONI, HOMBAL, TQ AND DIST: GADAG-582 204.

7. SMT. SHANKREVVA D/O. BASAPPA @ BASAVARAJ HALLAD, AGE: 29 YEARS, OCC: HOUSEHOLD, R/O: HALLAD ONI, NAVALGUND, DIST: DHARWAD-582 208. (BY SRI. SHIVARAJ S. BALLOLI, ADV. FOR R1; SRI.M.S.WANTAMURI, ADV. FOR R2 AND R3; SRI.MRUTYUNAJAYA R.YARAGAMBLIMATH, ADV. FOR R4 AND R6; NOTICE TO R7 IS SERVED) …RESPONDENTS THIS RFA CROB IS FILED IN RFA NO.100171/2014 IS FILED UNDER ORDER 41 RULE 22 R/W. SEC. 96 OF CPC 1908., AGAINST THE JUDGMENT AND DECREE DATED 31.07.2014 PASSED IN O.S.NO.45/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, SAUNDATTI, DECREEING THE SUIT FILED FOR PARTATION AND SEPARATE POSSESSION. THESE RFAs & RFA CROSS-OBJECTIONS COMING ON FOR FURTHER HEARING, THIS DAY, RAMACHANDRA D. HUDDAR, J, DELIVERED THE FOLLOWING: - 7 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 JUDGMENT The appeals in R.F.A. No.100171/2014 by defendants No.1 and 4, and R.F.A. No.100211/2014 by defendant No.3 arise out of a judgment and decree in O.S. No.45/2011 dated 31.07.2014 passed by the Senior Civil Judge, Saundatti. Whereas the cross-objections in RFA Crob No.100002/2015 is by defendant No.6 only questioning the apportionment of shares by the Trial Court.

2. As these two regular appeals and the cross- objections arise out of the judgment and decree passed in O.S.No.45/2011, the common arguments is heard. Therefore, common judgment is passed.

3. For the purpose of convenience, the parties to these appeals and cross-objections are referred to as per their rankings before the Trial Court.

4. Brief facts of the case leading up to the filing of these appeals and cross objection are: - 8 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 That the plaintiff filed the aforesaid suit against the defendants seeking relief of declaration that alleged so-called gift deed executed by defendant No.1 in favour of defendant No.4 dated 30.03.2010 in respect of Sy.No.607/1 and 867/1+2 is not binding on his share. Further, the plaintiff also sought for the relief of partition and separation possession of 1/3rd share in all the properties mentioned in the schedule appended to the plaint. It is the case of the plaintiff that, the propositus is one Dodda Sankappa. He died leaving behind defendants No.1, 5 and 6 as his legal heirs. Defendants No.5 & 6 are the sisters of defendant No.1. It is his case that, defendant No.1 has got two wives, the first wife by name Yallavva, who is arrayed as defendant No.2; and the second wife by name Ratnavva. The plaintiff and one Danappa are the sons of Ningappa through the first wife Yallavva. Defendants No.3 and 4 are the sons of Ningappa through the second wife Ratnavva. The plaintiff’s brother Danappa has gone in adoption to the family of one Narayanappa Morabad. Ratnavva being the second wife of defendant No.1 and - 9 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 hence, she is not entitled to get any share. Therefore, she is not arrayed as a party to the suit. It is the further case of the plaintiff that, defendants No.5 and 6 are the twins born in the year 1949 prior to the commencement of Hindu Succession Act, 1956. But their name is appearing in the revenue records in respect of Sy.No.606/A and therefore, she is arrayed as formal party to the suit to avoid technicalities. Likewise, the name defendant No.7 also appears in the revenue records and though she has no right, title and interest in the property, she has been made as a party to the suit. It is further case of the plaintiff that, the defendants No.3 and 4 being sons of defendant No.1 through the second wife Ratnavva. they are not entitled to any share during the life time of defendant No.1, but even then their name is appearing in respect of the landed properties bearing Sy.No.238/3, 867/1+2 and 607/1 and open space bearing CTS No.3420/D/12. Therefore, they are arrayed as parties to avoid technical flaws. - 10 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 It is the further case of the plaintiff that, defendant No.1, illegally, created a gift deed respect of Sy.No.607/1, 867/1+2 in favour of defendant No.4 without the knowledge and consent of the plaintiff behind his back. It was registered on 30.03.2010. After getting knowledge about the execution of the said gift deed, when he questioned defendant No.1, (defendant No.1) did not give any answer to the same. Just to deprive the plaintiff of his right and his legitimate share in the suit schedule properties, defendant No.1 illegally created a concocted gift deed in favour of defendant No.4. The said gift deed is not binding on the share of the plaintiff. It is alleged that, though he demanded the defendants to effect partition, there was a flat denial of the same and therefore, the suit was filed by the plaintiff seeking the relief of partition and separate possession of the suit schedule properties by metes and bounds. It is further alleged that, defendant No.1 was addicted to bad vices and in order to get money, he is trying to create charges and alienate the properties. - 11 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 Hence, it was prayed by the plaintiff to decree the suit as prayed for. Before the Trial Court, pursuant to the suit summons, all the defendants appeared through their respective counsels. Defendant No.6 filed written statement contending that, the whole case of the plaintiff is false and frivolous. Plaintiff is not entitled for the relief of partition and separate possession of the suit schedule properties. So far as the relationship between the parties is concerned, she admits the same. According to her, she is born in the year 1949. Further, she states that the propositus Doddasankappa was adopted by Yallawwa W/o.Satyappa Somannavar. On the death of Yallawwa, the propositus got the properties bearing No.838 and 867/1 as per M.E.No.7275 dated 20.09.1955. The wife of Doddasankappa succeeded to some of the properties from her mother. It is further contended that, during time of Doddasankappa and his wife Kashibai, there was no partition of the ancestral properties in the family. It is further contended that, on the death of Doddasankappa, his - 12 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 wife Kashibai, along with defendants No.1, 5 and 6, cultivated the suit schedule properties jointly. Every year defendants No.1, 5 and 6 used to take 1/3rd share in each of the properties. It is further contended that, defendant No.6, though was residing at Navalgund, often she used to visit the properties and stay in ‘B’ schedule property. It is further contended that, defendant No.6 also used to visit Saundatti and used to stay in schedule ‘B’ property to look after the landed properties along with defendant No.1. Therefore, defendant No.1 has got 1/3rd share in the suit schedule property. It is further contended by defendant No.6 that, the plaintiff is not at all entitled to 1/3rd share in the suit schedule properties. It is further contended that, defendant No.1 colluding with defendant No.4 has created gift deed dated 30.03.2010 to deprive the share of defendant No.6. The plaintiff is the son of elder brother of defendant No.6. The name of defendant No.6 is appearing in respect of Sy.No.606/A after the death of her mother. Therefore, it is - 13 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 contended that, it is a collusive suit and therefore, the suit is not maintainable. Likewise, defendants No.1, 3 and 4 also filed their separate written statements. According to them, defendant No.2-Yallavva is not the first wife. However, plaintiff and Danappa being the sons of defendants No.1 and 2 is admitted. It is contended that, defendant No.1 had contacted the marriage with defendant No.2 as he had love in her and also physical intimacy with her. This illegal relationship was opposed by family members. Defendant No.1 has not married defendant No.2 till date. However, they continued their intimacy and in the said relationship a child by name Danappa was born. It is their contention that, as per the advice of elderly persons and as per the customs prevailing in the community, defendant No.1 married Ratnavva. In the said wedlock, two sons viz., Basavaraj and Naveen, who are defendants No.3 and 4, and a daughter by name Manjula are born. However, said Manjula is no more and died before her marriage. Thus, it is defendants No.3 and 4 who are the - 14 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 legitimate children of defendant No.1. Thus, as per the provisions of Hindu Succession Act, they are entitled to their legitimate share in the suit schedule properties. It is further contended that, defendant No.1 is born on

30.05.1944 and defendants No.5 and 6 are twins who were born on 01.06.1949. The said Doddasankappa was adopted by Yallavva W/o. Satyappa Somannavar on 18.09.1951. Since then, defendant No.1 is living as adopted son of Yallavva. After the demise of Yallavva, her properties came to be mutated in the name of defendant No.1 as the legal heir of Yallavva. Therefore, all the defendants stated supra prayed to dismiss the suit. Based upon the rival pleadings of the parties, the Trial Court framed in all six issues and four additional issues. They read as under: “ISSUES 1) Whether the plaintiff proves the genealogy furnished in the plaint ? 2) Whether the plaintiff proves that the suit schedule properties are ancestral joint family properties of plaintiff and defendants? - 15 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 3) Whether the plaintiff and defendant No.6 prove that the gift deed dtd. 30-3-2010 executed by first defendant in favour of fourth defendant is null and void and not binding on the share of the plaintiff and defendant No.6? 4) Whether the plaintiff is entitled for 1/3rd share in all the suit schedule properties? 5) Whether the sixth defendant proves that she is entitled for 1/3rd share in the suit schedule properties ? 6) What decree/order? Additional Issues 1) Whether the D1, 3 & 4 prove that plaintiff is illegitimate son of first defendant ? 2) Whether D1. 3 & 4 prove that Smt. Ratnavva is the only legally wedded wife of first defendant? 3) Whether D1, 3 & 4 prove that CTs No.2121, TMC No. 1091 and CTS 3420/D/12 are the self acquired properties of defendant No.1 ? 4) Whether the suit is not properly valued for the purpose of C.F. and Court fee paid is insufficient ? (Addl. Issue No.4 was treated as preliminary issue)” Before the learned Trial Court, the plaintiff, in order to substantiate his case, entered the witness box as P.W.1 and he also examined two other witnesses in the shape of P.W.2 - 16 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 and P.W.3 and got marked documents Ex.P.1 to 37 and closed his evidence. To rebut, the evidence of plaintiff, defendants No.6, 1 and 4 respectively entered the witness box and examined themselves as D.Ws.1, 2 and 3 respectively; and also examined three more witnesses in the shape of D.Ws.4, 5 and 6. The defendants got marked Exs.D.1 to D.50 on their behalf and closed their evidence. The learned Trial Court on closure of evidence of both sides, on hearing the arguments and on perusal of the records, answered issue Nos.1, 2, 4 and 5 in the affirmative and issue No.3 and additional issues No.1 to 4 in the negative and ultimately decreed the suit of the plaintiff awarding 1/3rd share to the plaintiff, and the counter claim of defendant No.6 was also decreed granting him 1/6th share in the suit schedule properties. The gift deed dated

30.03.2010 executed by defendant No.1 came to be set aside by the Trial Court. Accordingly, a preliminary decree was ordered to be drawn by the Trial Court. - 17 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015

5. This judgment and decree of the Trial Court is now challenged by defendants No.1 and 4 by filing R.F.A. No.100171/2014, and by defendant No.3 by filing R.F.A. No.100211/2014. Defendant No.6 has challenged the judgment and decree of the Trial Court by filing cross- objections in RFA Crob. No.100002/2015.

6. So far as, defendants No.1 and 4 and so also defendant No.3 are concerned, they have challenged the findings of the Trial Court on the ground that, the plaintiff is not entitled for any share in the suit schedule properties. It is defendant Nos. 2 and 3 who are entitled for legitimate share in the suit schedule properties etc. So far as defendant No.6 is concerned, the very awarding of share to the extent of 1/6th is challenged by way of cross-objections.

7. The records of the appeal reveal that, during the pendency of these appeals, defendant No.1 being appellant No.1 in R.F.A. No.100171/2014 died. As his legal heirs i.e., appellant No.2 and respondents No.1 to 4, were already on - 18 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 record, the cause title of the appeal memo came to be amended to that effect.

8. It is argued by Sri. Mrutyunjay Tata Bangi, learned counsel appearing for the appellants in R.F.A. No.100171/2014 that, the genealogical tree so stated in the appeal memo show that one Doddasankappa Shivappa Somannavar was the propositus who died in the year 1958 and his wife Kashibai also died in the year 1985. During the lifetime of propositus i.e., Doddasankappa was adopted to the family of Yallawwa. The said Doddasankappa and his wife Kashibai have three children by name Ningappa (defendant No.1), Laxmavva (defendant No.5) and Siddavva (defendant No.6). Defendants No.5 and 6 are twins born on 01.06.1949. Ningappa, the son of Doddasankappa, had a wife by name Ratnavva and she is the first wife as per the submission of the counsel for the appellants. He submits before the Court that, Ratnavva is the first wife of Ningappa and in the said marriage, three children are born i.e., two sons viz., Basavaraj and Naveen, - 19 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 who are arrayed as defendants No.3 and 4 respectively, and a daughter by name Manjula, who is no more and had died even before her marriage. He submits that, when Doddasankappa himself went in adoption to the family of Yallawwa, at that time, Ningappa, Laxmavva and Siddavva were already born and therefore, he ceases to be the member of genetic family and therefore, Ningappa, Laxmavva and Siddavva would not get any share in the properties left by Doddasankappa in his adopted family. Further, he submits that, Ningappa, at the most, would get a share in the genetic family properties of Doddasankappa; and likewise, Laxmavva and Siddavva would get a share in the genetic family properties of Doddasankappa. Further, he submits that, Ratnavva, being the first wife of Ningappa, their sons Basavaraj (defendant No.3) and Naveen (defendant No.4) are entitled for their legitimate shares. It is his submission that, the appellants disputes the relationship between Yallavva and Ningappa as the husband and wife. So also, they dispute the relationship of Sankappa-plaintiff and his entitlement for a share in the suit - 20 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 schedule properties. He admits that Danappa, another son of Ningappa, has gone in adoption.

9. Now, in this case, we are very much concerned about the legitimacy of Sankappa as the son of Ningappa born through Yallavva, and so also whether Basavaraj and Naveen, defendants No.3 and 4 respectively, are the children born to Ratnavva, the first wife of Ningappa.

10. Relying upon the documents produced by both sides, counsel for the appellant Sri. Mrutyunjaya Tata Bangi submits that, though various documents are produced by the plaintiff, they will not prove the status of the plaintiff as the son of Ningappa. Further, he submits before the Court that, the genealogical tree so mentioned by the appellant in the appeal memo clearly depicts as to who are all the children of Ningappa. He submits that, the very awarding of share to the plaintiff and denying the share to defendants No.3 and 4 by the Trial Court is illegal. In support of his submission, he relied upon a Full Bench decision of the High Court of Bombay in Martand Jiwaji Patil and Ors. Vs. - 21 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 Narayan Krishna Gumast Patil and Ors., in First Appeal No.98 of 1937 decided on 16.02.1939. He submits that defendants No.3 and 4 are also to be awarded shares in the suit schedule properties so mentioned in the plaint.

11. As against this submission, Smt. Aradhana Manvi, learned counsel for defendant No.6 i.e., cross objector, submits that, there is a wrong calculation of the shares by the Trial Court while awarding share to defendant No.6. In fact, defendant No.6 being the daughter of Doddasankappa is legitimately entitled for 1/3rd share in the suit schedule properties. The Trial Court has awarded just 1/6th share which, according to her, is a mistake that has been crept in the preliminary decree. She submits that when the relationship is admitted, and as defendant No.6 is born on 01.06.1949 prior to 1956 i.e., before the advent of the Hindu Succession Act, in view of the judgment Hon’ble Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and Others1, she is entitled for a equal share in the 1 (2020)9 SCC 1 - 22 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 properties left behind by Doddasankappa. So also, she submits that, defendant No.5 is also entitled to an extent of equal share in the suit schedule properties. Therefore, she prays to correct the mistake committed by the Trial Court by allowing the cross-objections filed by defendant No.6.

12. Rebutting all these submissions, Sri. Shivaraj S.Ballolli, the learned counsel for the plaintiff submits that, it is Yallavva who is the first wife of Ningappa; that in the wedlock of Yallavva and Ningappa, the plaintiff and Danappa are born; Danappa has gone in adoption. He submits that, in view of legitimacy of Sankappa as the son of Yallavva and Ningappa, defendants No.3 and 4 i.e., Basavaraj and Naveen cannot claim equal share in the suit schedule properties. He submits that, Ratnavva is the second wife and even there is pleading to that effect in the plaint. He submits that, the Trial Court is right in awarding share to the plaintiff. He submits that, in view of the evidence placed on record by the plaintiff as well as the defendants, the legitimacy of Sankappa as the son of - 23 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 Ningappa born from his first wife Yallavva is proved. In support of his submission, he relied upon the evidence placed on record by both the parties.

13. We have given our anxious consideration to the rival contentions of the parties. In view of the rival submission of both the sides, the following points would arise for our consideration: i) Whether the Trial Court has committed illegality in not awarding legitimate share to the plaintiff as well as the defendants? ii) If so, whether the judgment and decree of the Trial Court requires interference of this Court? iii) What order?

14. Before adverting to other aspects of the case, let us discuss the admitted facts between the parties. The propositus was one Doddasankappa. He died in the year

1958. His wife Kashibai died in the year 1985. During the lifetime of Doddasankappa and Kashibai, they have three children i.e., Ningappa (defendant No.1), Laxmavva - 24 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 (defendant No.5) and Siddavva (defendant No.6). Ningappa-defendant No.1 died during the pendency of these appeals. Ningappa has a wife Yallavva as per the genealogical tree made available by the parties. In the wedlock of Ningappa and Yallavva, two sons are born i.e., Sankappa (plaintiff) and Danappa. Danappa has gone in adoption. It is also the case of the appellant that, Ratnavva is the first wife of Ningappa and in the wedlock of Ningappa and Ratnavva, three children are born i.e., Basavaraj (defendant No.3) and Naveen (defendant No.4) and Manjula who died even before her marriage. Now, the surviving legal heirs, as per the case of the appellants are Basavaraj and Naveen born to Ratnavva and Ningappa.

15. It is the case of the plaintiff that he is the son born to Ningappa and Yallavva. To prove that the marriage between Ningappa and Yallavva was performed on

04.05.1961. The marriage invitation card is produced by the plaintiff as per Ex.P.37. While making this document, no objections were raised by either of the contesting parties. - 25 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 Whereas the defendants No.3 and 4 in this case have not produced any documents to show that, when exactly the marriage between Ningappa and Ratnavva has taken place. That means, except the self-serving pleading in the written statement, there is no acceptable evidence produced by defendants No.3 and 4. i.e. except the oral evidence to show that, Basavaraj, Naveen and Manjula are born to Ratnavva, who is alleged to be the first wife of Ningappa, there is no acceptable evidence produced by defendants No.3 and 4. Even on going through the oral evidence, it shows that, Yallavva is the first wife of Ningappa. In the wedlock of Yallavva and Ningappa, two sons are born i.e., Sankappa and Danappa. The cause title so stated in the plaint shows that, Basavaraj and Naveen are quite younger than the plaintiff-Sankappa and Danappa, which is not disputed by defendants No.3 and 4. This itself pre-supposes that, Sankappa is born much prior to the birth of Basavaraja and Naveen in the wedlock of Yallavva and Ningappa. It goes to establish that, Yallavva is the first wife of Ningappa. Though it has come in the evidence of - 26 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 defendant No.1 that, Ratnavva is the first wife, but in view of Ex.P.37 and also the evidence shows that, to deprive the rights of Sankappa, he must have deposed so. But his evidence cannot be accepted that Ratnavva is the first wife of Ningappa. Whereas the other evidence probablises that Yallavva is the first wife of Ningappa. This aspect has been rightly considered by the Trial Court with regard to the status of the plaintiff as the son of Yallavva in the marriage between Yallavva and Ningappa. Though a ground is made out in the appeal memo, it is not substantiated by defendants No.2 and 4 by adducing any additional evidence. So in the absence of any acceptable evidence with regard to status of Ratnavva as the first wife of Ningappa, the evidence of the plaintiff has to be accepted. Therefore, it is held that, Yallavva is the first wife of Ningappa and the plaintiff is the son of Yallavva and Ningappa.

16. Now, the question that requires to be considered is with regard to the status of the suit schedule properties. The plaintiff has described the schedule properties in the - 27 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 suit and has also produced various documents with regard to mutation entries etc. Amongst the documents produced by the plaintiff i.e., Ex.Ps.1 to P.37, there are properties extracts and mutation entries etc. On reading of these mutation entries, they do suggest that, not only the genetic family properties are included in the schedule to the plaint, but also the adopted family properties are included in the schedule to the plaint. That means, Doddasankappa, even after adoption, cultivated the properties of genetic family as well as the adopted family. Thus, there is blending of the properties of genetic family as well as the adopted family. This fact is not disputed by any of the defendants.

17. It is the case of the plaintiffs that, after the demise of Doddasankappa, Kashibai succeeded to the suit schedule properties. The said Kashibai died in the year

1985. That means Ningappa, Laxmavva and Siddavva succeeded to the properties left by Doddasankappa and Kashibai. Accordingly, mutation entries have been effected in the revenue records. It is the pleading and evidence that - 28 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 after the demise of Doddasankappa, certain properties were entered in the name of Laxmavva and Siddavva. On a reading of said mutation entries and RTC extracts and so also the pleadings, there was no partition of the family properties by metes and bounds. Merely just entering the names of Laxmavva and Siddavva in respect of some of the properties, in their name would not prove that, they are the exclusive owners of those properties. It may be termed as voluntary arrangements and not a partition by metes and bounds. Therefore, though it is the pleading of defendants No.5 and 6 that, those properties are standing in their names, the same would not help them to show that, those properties are their exclusive properties. As stated supra, it may be a family arrangement being done by Ningappa so as to help his sisters. Thus, on overall reading of the documents produced by the plaintiff do establish that, the schedule properties are the joint family properties of plaintiff and defendants 1, 5 and 6. - 29 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015

18. Defendants also have led evidence and relied upon various documents marked as per Ex.D1 to Ex.D50. Ex.D1 to Ex.D11 are the RTC extracts and CTS extracts, Ex.D12 to Ex.D20 are the mutation entries, likewise Ex.D21 to Ex.D24 are the Khata extracts, Diary extract etc., The school certificates of Siddavva and Laxmavva are produced as per Ex.D44 and Ex.D45. Ex.D46 is the birth certificate of Sankappa.

19. These documents are not disputed by the plaintiff. The plaintiff challenges the gift deed Ex.D47. According to plaintiff, to deprive his rights in the suit schedule properties, defendant No.1 has executed a gift deed in favour of defendant No.4. As the schedule properties are the joint family ancestral properties, what locus-standi the defendant No.1 had to execute the gift deed is not pleaded or proved by producing cogent evidence. Though he knew that, the plaintiff is his son and Yallavva is his first wife, just to deprive their right in the properties, he might have executed the said gift deed in - 30 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 favour of defendant No.4, who is his son born though his second wife-Ratnavva. But that does not mean that, defendant No.1 during his lifetime had exclusive right to execute a gift deed as rightly observed by the Trial Court. Therefore, as rightly observed by the Trial Court, defendant No.1 had legal competency to execute the gift deed in favour of defendant No.4.

20. Now the question arises that, how much share the plaintiff and defendants are entitled to? As could be seen from the genealogical tree, evidently Doddasankappa is no more and Kashibai is also no more, who are ancestors of the plaintiff and defendants 1, 5 and 6. By applying the provisions of Hindu Succession Act, if the shares are carved out in view of Vineeta Sharma’s case (stated supra), these Laxmavva and Siddavva being daughters of Doddasankappa and Kashibai are entitled to equal share with that of son. That means, Ningappa would get 1/3rd share, Laxmavva-Defendant No.5 would get 1/3rd share and - 31 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 Siddavva-defendant No.6 would get 1/3rd share in the schedule properties by metes and bounds.

21. Defendant No.1-Ningappa had a wife by name Yallavva and son by name Sankappa i.e. plaintiff. So, the 1/3rd share of Ningappa has to be divided in between himself, first wife-Yallavva and son-Sankappa, which would be 1/9th each. That means, 1/9th share has to be given to Ningappa by applying the principles of notional partition and accordingly, Yallavva would get 1/9th share and Sankappa would get 1/9th share. The Trial Court is right in not awarding shares to defendants 3 and 4 since at the time of passing of decree, defendant No.1-Ningappa was alive. But he died during the pendency of this appeal.

22. As it is proved by defendants 3 and 4 that, they are children of Ratnavva, second wife of Ningappa, by applying the principles laid down in Revanasiddappa and another v. Mallikarjun and others2, Basavaraj and 2 (2011) 11 SCC 1 - 32 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 Naveen, who are born through second wife-Ratnavva are entitled in the share of their father-Ningappa. Due to death of defendant No.1-Ningappa, during the pendency of the appeals by subsequent developments, defendants 3 and 4 are entitled for share in the property of defendant No.1- Ningappa. Under the Hindu Succession Act, in case of birth, shares will be decreased and in case of death, shares will be increased. Since Ningappa died, defendants 3 and 4 being his children born through his second wife are entitled for share. That means, in 1/9th share of Ningappa, the children born through second wife-Ratnavaa i.e. Basavaraj and Naveen would get share so also Ningappa’s first wife- Yallavva and her son-Sankappa would get share. That means, 1/9th share of Ningappa has to be divided equally amongst Yallavva, Sankappa, Basavaraj and Naveen, which comes to 1/36th share each.

23. In view of above discussions, both the appeals and cross objection deserve to be allowed in part. Resultantly we pass the following: - 33 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 ORDER i) Both the appeals in RFA No.100171/2014 and 100211/2014 and Cross-objection in RFA Crob.No.100002/2015 are allowed in part. ii) The judgment and decree of the trial Court passed in O.S.No.45/2011 is hereby modified in following terms. iii) Plaintiff is entitled to 1/9th + 1/36th share i.e. 5/36th share in suit schedule properties. iv) Defendants 3 and 4 are entitled to 1/36th share each in the suit schedule properties. v) Defendant No.2-Yallavva is held entitled to 1/9th + 1/36th share i.e. 5/36th share in suit schedule properties. vi) Defendants 5 and 6 are entitled to 1/3rd share each in the suit schedule properties. vii) Based upon the doctrine of equity, at the time of final decree proceedings, the landed properties in possession of the respective parties be allotted to their respective shares to avoid any conflict between the parties. viii) There shall be modified preliminary decree in the above terms. - 34 - NC: 2023:KHC-D:14215-DB RFA No.100171 of 2014 C/W RFA No.100211 of 2014 RFA.CROB No.100002 of 2015 ix) In view of the facts and circumstances of the case no order as to costs. x) In view of disposal of the appeals and cross- objection, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. Sd/- JUDGE Sd/- JUDGE KMS, YAN List No.: 1 Sl No.: 25