- 1 - NC: 2025:KHC-K:2061 RSA No. 200242 of 2023 C/W RSA.CROB No. 200003 of 2024 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 1ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 200242 OF 2023 (PAR/POS) C/W RSA CROSS OBJ NO. 200003 OF 2024 IN R.S.A.NO.200242 OF 2023 BETWEEN: RAVI S/O RACHAPPA GANIGER AGE: 38 YEARS. OCC: PRIVATE SERVICE, R/O: AHERI, TQ: DIST: VIJAYAPURA – 580 002. …APPELLANT (BY SRI D.P.AMBEKAR, ADVOCATE) AND: 1. PREMA W/O RACHAPPA GANIGER AGE: 74 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK, R/O: AHERI, TQ: DIST: VIJAYAPURA. NOW AT ADAKI GALLI, JORAPUR PETH, VIJAYAPUR – 586 101. 2. DUNDAWWA D/O RACHAPPA GANIGER AGE: 49 YEARS, Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2061 RSA No. 200242 of 2023 C/W RSA.CROB No. 200003 of 2024 OCC: AGRICULURE, R/O: AHERI, TQ: DIST: VIJAYAPURA. NOW AT TEJASWINI NAGAR, DHARWAD – 580 002. 3. ARAVIND S/O RACHAPPA GANIGER AGE: 56 YEARS, OCC: GOVERNMENT SERVICE, R/O: AHERI, TQ: DIST: VIJAYAPURA. NOW AT H.NO.11, ULAVI CHANNABASAVESHWAR COLONY, GOPAN KOPPA, HUBLI – 580 023. 4. RAJASHEKHAR S/O RACHAPPA GANIGER AGE:54 YEARS OCC: PRIVATE SERVICE, R/O: AHERI, TQ: DIST: VIJAYAPURA. NOW AT C/O. M. MUNI SIDDAPPA PINAKINI APARTMENT, H.NO.3, NEAR GOVERNMENT PRIMARY SCHOOL, BETLOOR VILLAGE, POST KADUGODI, BENGALURU – 560 067. 5. MUTTAWWA S/O GURULINGAPPA SHIRSHYAD, AGE: 41 YEARS, OCC: HOUSEHOLD WORK, R/O: SHIRSYAD, TQ: INDI, DIST: VIJAYAPUR – 586 217. …RESPONDENTS (BY SRI MANVENDRA REDDY, ADVOCATE FOR R1 AND R2; R3 TO R5 ARE SERVED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, PRAYING TO ALLOW THIS APPEAL BY PARTLY MODIFYING THE JUDGMENT - 3 - NC: 2025:KHC-K:2061 RSA No. 200242 of 2023 C/W RSA.CROB No. 200003 of 2024 AND DECREE DATED 13.01.2023 PASSED BY I-ADDITIONAL SENIOR CIVIL JUDGE AND C.J.M., AT VIJAYAPURA, IN R.A.NO.88/2021, AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 30.11.2021 PASSED BY THE PRINCIPAL CIVIL JUDGE, VIJAYAPURA IN O.S.NO.425/2010, AND FURTHER DISMISS THE SAID O.S.NO.425/2010 ON FILE OF THE PRINCIPAL CIVIL JUDGE, VIJAYAPURA WITH COSTS THROUGHOUT IN THE INTEREST OF JUSTICE AND EQUITY. IN R.S.A. CROB NO.200003 OF 2024 BETWEEN: 1. PREMA W/O RACHAPPA GANIGER AGE: 74 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK, R/O: AHERI, TQ: DIST: VIJAYAPURA. NOW AT ADAKI GALLI, JORAPUR PETH, VIJAYAPUR – 586 101. 2. DUNDAWWA D/O RACHAPPA GANIGER AGE: 49 YEARS, OCC: AGRICULTURE, R/O: AHERI, TQ: DIST: VIJAYAPURA. NOW AT TEJASWINI NAGAR, DHARWAD …CROSS OBJECTORS (BY SRI MANVENDRA REDDY, ADVOCATE) AND: 1. ARAVIND S/O RACHAPPA GANIGER AGE: 56 YEARS, - 4 - NC: 2025:KHC-K:2061 RSA No. 200242 of 2023 C/W RSA.CROB No. 200003 of 2024 OCC: GOVERNMENT SERVICE, R/O: AHERI, TQ: DIST: VIJAYAPURA. NOW AT H.NO.11, ULAVI CHANNABASAVESHWAR COLONY, GOPAN KOPPA, HUBLI – 580 023. 2. RAJASHEKHAR S/O RACHAPPA GANIGER AGE:54 YEARS OCC: PRIVATE SERVICE, R/O: AHERI, TQ: DIST: VIJAYAPURA. NOW AT C/O. M. MUNI SIDDAPPA PINAKANI APARTMENT H.NO.3, NEAR GOVERNMENT PRIMARY SCHOOL, BETLOOR VILLAGE, POST: KADUGODI, BENGALURU – 560 067. 3. RAVI S/O RACHAPPA GANIGER AGE: 38 YEARS. OCC: PRIVATE SERVICE, R/O: AHERI, TQ: DIST: VIJAYAPURA – 586 101. 4. MUTTAWWA S/O GURULINGAPPA SHIRSHYAD, AGE: 40 YEARS, OCC: PRIVATE SERVICE, R/O: AHERI, TQ: DIST: VIJAYAPUR – 586 101. …RESPONDENTS (BY SRI D.P.AMBEKAR, ADVOCATE FOR R4) THIS REGULAR SECOND APPEAL CROSS OBJECTION IS FILED UNDER ORDER XLI RULE 22 OF CODE OF CIVIL PROCEDURE, PRAYING TO DISMISS THE APPEAL FILED BY THE APPELLANT IN R.S.A.NO.200242/2023 WITH COSTS AND ALLOW THE CROSS APPEAL FILED BY THE CROSS OBJECTOR / PLAINTIFFS AND SET ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.88/2021 DATED 13.01.2023 PASSED BY LEARNED I-ADDITIONAL SENIOR CIVIL JUDGE, AND C.J.M., - 5 - NC: 2025:KHC-K:2061 RSA No. 200242 of 2023 C/W RSA.CROB No. 200003 of 2024 VIJAYAPURA, WITH COSTS THROUGHOUT, IN THE INTEREST OF JUSTICE AND EQUITY. THIS REGULAR SECOND APPEAL AND REGULAR SECOND APPEAL CROSS OBJECTION, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) These appeal and cross appeal are arising out of the judgment and decree dated 30.11.2021 passed in O.S.No.425/2010 on the file of Principal Civil Judge, Vijayapura and also the judgment and decree dated 13.01.2023 passed in R.A.No.88/2021 on the file of I- Additional Senior Civil Judge, Vijayapura. 2. The suit for partition is filed by one Prema who claimed to be the first wife of Rachappa Ganiger and also Dundawwa who claimed to be the daughter of Prema and Rachappa Ganiger. 3. Defendants No.1 and 2 are said to be sons of Prema and Rachappa. Defendant No.3-Nembevva claimed - 6 - NC: 2025:KHC-K:2061 RSA No. 200242 of 2023 C/W RSA.CROB No. 200003 of 2024 to be the first wife of Rachappa. This status is disputed by the plaintiffs. Defendant No.4 is said to be the son of Nembevva and Rachappa. Defendant No.5 is the purchaser of the property who claims to have purchased the property from defendant No.4. Defendants No.1 and 2 supported the case of the plaintiffs. Defendants No.3 and 4 contested the suit. Defendants No.3 and 4 took a stand that defendant No.3 is the first wife of Rachappa and plaintiff No.1 is the second wife of Rachappa. Thus, they prayed for dismissal of the suit. 4. Issues framed before the Trial Court as extracted in the judgment of the First Appellate Court would reveal that initially six issues are framed. Thereafter, five additional issues are framed and all the five additional issues are framed casting burden on defendant No.4 and later, one more additional issue is framed casting burden on defendant No.4. 5. The Trial Court concluded that the plaintiff No.1 is the first wife and plaintiff No.2 and defendants No.1 and 2 - 7 - NC: 2025:KHC-K:2061 RSA No. 200242 of 2023 C/W RSA.CROB No. 200003 of 2024 are the children of Rachappa from first wife and defendant No.3 is the second wife and defendant No.4 is the son of Rachappa from second wife. 6. Admittedly, both the parties are claiming that the marriage took place during the subsistence of the first marriage. The question is, which marriage is the first marriage. 7. Aggrieved by the decree for partition, defendants Nos.3 and 4 filed an appeal in R.A.No.88/2021 on the file of the I-Additional Senior Civil Judge, Vijayapura. The First Appellate Court allowed the appeal and granted 1/5th share to each of plaintiffs No.1 and 2 and defendants No.1, 2 and 4. 8. Aggrieved by the decree passed by the First Appellate Court, defendant No.4 is in appeal in RSA No.200242/2023 and plaintiffs are in appeal in RSA.CROB.No.200003/2024. - 8 - NC: 2025:KHC-K:2061 RSA No. 200242 of 2023 C/W RSA.CROB No. 200003 of 2024 9. Learned counsel appearing for defendant No.4/appellant would urge that the Trial Court though framed issues based on the contentions raised in the written statement has not given any findings on issues which have been framed casting burden on defendant Nos.3 and 4. It is further urged that defendants No.3 and 4 raised a contention of oral partition between Rachappa and defendant No.4 and the said issue has not been answered at all. Thus, he would urge that the judgment and decree under the appeal have to be set aside and the matter has to be remitted to the Trial Court on this count alone. 10. In addition to this, it is also urged that the materials on record establish that defendant No.3 is the first wife and plaintiff No.1 is the second wife and the relevant documentary evidence as well as oral evidence in this behalf have been completely ignored by the Trial Court and confirmed by the First Appellate Court to hold that plaintiff No.1 is the first wife and plaintiff No.2 and - 9 - NC: 2025:KHC-K:2061 RSA No. 200242 of 2023 C/W RSA.CROB No. 200003 of 2024 defendants No.1 and 2 are the children of Rachappa from first wife i.e., plaintiff No.1. Thus, he would urge that the judgment and decree under appeal be set aside. 11. Learned counsel for the plaintiffs/respondents No.1 and 2 in RSA No.200242/2023 and cross objectors in RSA.CROB.No.200003/2024 would urge that plaintiff No.1 has established that she is first wife and plaintiff No.2 and defendants No.1 and 2 are the children of Rachappa from first wife, and defendant No.3 is unable to establish her lawful marriage with Rachappa and all the records relating to the first marriage with plaintiff No.1 are duly established. The Trial Court is justified in holding that plaintiff No.1 is the legally wedded wife of Rachappa and plaintiff No.2, defendants No.1 and 2 are the children of Rachappa from plaintiff No.1. It is also his further contention that Rachappa was Government employee and he has nominated his wife Prema as nominee to the service records and the birth certificates produced by the - 10 - NC: 2025:KHC-K:2061 RSA No. 200242 of 2023 C/W RSA.CROB No. 200003 of 2024 plaintiffs would establish that plaintiff No.2, defendants No.1 and 2 are born prior to defendant No.4. 12. It is also the further contention that the voters’ list produced by the plaintiffs would establish that Rachappa lived under one roof along with first wife Prema and the claim of defendant No.3 that she is first wife is not supported by any documents rebutting the presumptions arising from the records produced by the plaintiffs. Thus, he contended that the Trial Court is justified in decreeing the suit. However, it is further submitted that the First Appellate Court has erred in granting equal share to defendant No.4 on the premise that defendant No.4 is also entitled to equal share though he is the son from the void marriage. Thus, he would urge that the share has to be modified and defendant No.4 should be allotted a share in the share allotted to the father Rachappa in the notional partition. 13. Replying to the contentions raised by the plaintiffs, learned counsel for defendants No.3 and 4 would - 11 - NC: 2025:KHC-K:2061 RSA No. 200242 of 2023 C/W RSA.CROB No. 200003 of 2024 contend that the First Appellate Court is justified in awarding equal share to all the children of Rachappa when the properties are the self-acquired properties of Rachappa and the share would devolve under Section 8 of the Hindu Succession Act, 1956. 14. This Court has considered the contentions raised at the bar and perused the records. The following substantial questions of law would arise for consideration: i. Whether the Trial Court and the First Appellate Court were justified in holding that plaintiff No.1 is the legally wedded wife of Rachappa? ii. Whether the First Appellate Court is justified in holding that the properties are self- acquired properties of Rachappa and plaintiffs, defendants No.1, 2 and 4 are entitled to equal share? iii. Whether defendant No.4 establishes that there was oral partition between Rachappa and himself? 15. As far as the first contention relating to the status of plaintiff No.1 as first wife of Rachappa is - 12 - NC: 2025:KHC-K:2061 RSA No. 200242 of 2023 C/W RSA.CROB No. 200003 of 2024 concerned, it is noticed that in the Service Records, Rachappa has named plaintiff No.1 as his wife. In addition to that, it is also noticed from the voters’ list that plaintiff No.1’s name is found along with Rachappa and they are living in one house along with plaintiff No.2, defendants No.1 and 2. It is also noticed that plaintiff No.2, defendants No.1 and 2 are elder to defendant No.4. The voters’ list produced by defendants No.3 and 4 is the voters’ list subsequent to the voters’ list produced by the plaintiffs. Considering all these materials, this Court is of the view that the finding of the Trial Court and the First Appellate Court that plaintiff No.1 is the first wife of Rachappa cannot be disturbed in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. 16. As far as the quantum of share allotted to the parties, it is to be noticed that in case the properties are self-acquired properties of Rachappa, then the children from first wife as well as the son from second wife are entitled to equal share. - 13 - NC: 2025:KHC-K:2061 RSA No. 200242 of 2023 C/W RSA.CROB No. 200003 of 2024 17. The plaintiffs in the plaint have contended that suit ‘A’ and ‘B’ schedule properties are the ancestral properties and the defendants No.3 and 4 in the written statement have not disputed the said aspect. Defendants No.3 and 4 would on the other hand contend that suit ‘C’ schedule property is the self-acquired property of Rachappa and they have not taken specific stand that suit ‘A’ and ‘B’ schedule properties are the self-acquired properties of Rachappa. 18. Under the above circumstances, this Court is of the view that the finding that suit ‘A’ and ‘B’ schedule properties are ancestral properties cannot be disturbed. 19. As far as suit ‘C’ schedule property is concerned, it is noticed that the plaintiffs themselves have admitted that it is the self-acquired property of Rachappa. The said property was purchased by Rachappa. Admittedly, he was a Government servant working as Teacher. There is no evidence to show that the income was surplus from ancestral properties and it was in the - 14 - NC: 2025:KHC-K:2061 RSA No. 200242 of 2023 C/W RSA.CROB No. 200003 of 2024 hands of Rachappa and it was utilsed to purchase suit ‘C’ schedule property. Thus, this Court is of the view that the finding of the First Appellate Court that all the properties are ancestral properties has to be set aside and this Court has to hold that suit ‘C’ schedule property is the self- acquired property of Rachappa. 20. For the above said reasons, the share allotted by the First Appellate Court has to be modified. Plaintiffs No.1 and 2 and defendants No.1, 2 and 4 are entitled to 1/5th share each in suit ‘C’ schedule property. 21. As far as suit ‘A’ and ‘B’ schedule properties are concerned, there has to be a notional partition and in that partition, Rachappa is entitled to 1/5th share. In the 1/5th share of Rachappa, each of the plaintiffs and each of defendants No.1, 2 and 4 is entitled to equal share. That would come to 1/25th share to each of the plaintiffs and each of the defendants No.1, 2 and 4 in the 1/5th share of Rachappa in suit A and B schedule properties. - 15 - NC: 2025:KHC-K:2061 RSA No. 200242 of 2023 C/W RSA.CROB No. 200003 of 2024 22. As far as the contention that there was an oral partition between Rachappa and defendant No.4, the Trial Court has not given any finding. It is to be noticed that the alleged partition according to the Trial Court is not established as plaintiffs No.1 and 2 and defendants No.1 and 2 who were also sharers are not given any share. It is also noticed that the document relating to alleged partition is not properly stamped and the document is not registered where the property is sought to be partitioned for the first time without there being any reference to oral partition. Under these circumstances, this Court is of the view that the finding of the Trial Court that the oral partition between Rachappa and defendant No.4 is not established does not require any interference and the same is also confirmed by the First Appellate Court on appreciation of evidence. 23. Hence, the following: ORDER i. The appeals in RSA No.200242/2023 and RSA.CROB.No.200003/2024 are allowed in - 16 - NC: 2025:KHC-K:2061 RSA No. 200242 of 2023 C/W RSA.CROB No. 200003 of 2024 part. The impugned judgment and decree dated 13.01.2023 passed in R.A.No.88/2021 on the file of I-Additional Senior Civil Judge, Vijayapura and the impugned judgment and decree dated 30.11.2021 passed in O.S.No.425/2010 on the file of Principal Civil Judge, Vijayapura, are modified. ii. The suit of the plaintiffs is decreed in part. iii. Each of plaintiffs No.1 and 2 and each of defendants No.1, 2 and 4 is entitled to 1/5th share in suit ‘C’ schedule property. iv. Each of plaintiffs No.1 and 2 and each of defendants No.1, 2 and 4 is entitled to 1/25th in respect of suit ‘A’ and ‘B’ schedule properties. v. No order as to cost. Sd/- (ANANT RAMANATH HEGDE) JUDGE NB List No.: 1 Sl No.: 37 Ct: VK