- 1 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100284 OF 2016 (PAR/POS) C/W REGULAR FIRST APPEAL NO. 100193 OF 2019 IN RFA NO.100284 OF 2016 BETWEEN: 1. SMT. SAVAKKA W/O. MADIVALAPPA APPANNAVAR, AGE 62 YRS, OCC: HOUSEWIFE, R/O. AMARAGOL VILLAGE, NEAR HANCHATTI LAKE, TQ: HUBBALLI-580025. 2. SRI.SIDDAPPA S/O. MADIWALAPPA APPANNAVAR, AGE 37 YEARS, OCC: AGRICULTURE, R/O. AMARAGOL VILLAGE, NEAR HANCHATTI LAKE, TQ: HUBBALLI-580025. 3. SRI.KALLAPPA S/O. MADIVALAPPA APPANNAVAR, AGE 32 YRS, OCC: AGRICULTURE, R/O. AMARAGOL VILLAGE, NEAR HANCHATTI LAKE, TQ: HUBBALLI-580025. …APPELLANTS (BY SRI. SANTOSH B. MALLIGAWAD, ADV. FOR SRI. B. K. MALLIGAWAD, ADVOCATE) AND: SMT.MAHADEVI W/O. BASAVANTAPPA APPANNAVAR, AGE 47 YRS, OCC: HOUSEWIFE AND AGRICULTURE, R/O. RAYAPUR VILLAGE, KURUBAR ONI, TQ AND DIST: DAHRWAD-580009. …RESPONDENT (BY SRI. SABEEL AHMAD ADV. FOR SRI. ANAND R. KOLLI, ADV. FOR SOLE RESPONDENT) THIS REGULAR FIRST APPEAL IS FILED U/SEC.96 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 01.09.2016 IN O.S. NO.375/2014 PASSED BY THE COURT OF III Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, BY DISMISSING THE SUIT OF THE PLAINTIFF WITH COST, THROUGHOUT IN THE INTEREST OF JUSTICE AND EQUITY. IN RFA NO.100193 OF 2019 BETWEEN: 1. SAVAKKA W/O. MADIWALAPPA APPANNAVAR, AGE 64 YEARS, OCC: HOUSEHOLD, R/O. AMARGOL VILLAGE, NEAR HANCHATTI LAKE, HUBBALLI-025. 2. SIDDAPPA S/O. MADIWALAPPA APPANNAVAR, AGE 39 OCC: AGRICULTURE, R/O:ANARGOL VILLAGE, NEAR HANCHATTI LAKE, HUBBALLI-025. 3. KALLAPPA S/O. MADIVALAPPA APPANNAVAR, AGE 34 YEARS, OCC: AGRICULTURE, R/O. AMARGOL VILLAGE, NEAR HANCHATTI LAKE, HUBBALLI-025. …APPELLANTS (BY SRI. SANTOSH B. MALLIGAWAD, ADV. FOR SRI. B. K. MALLIGAWAD, ADVOCATE) AND: SMT. MAHADEVI W/O. BASAVANTHEPPA APPANNAVAR, AGE 47 YEARS, OCC: HOUSEWIFE AND AGRICULTURE, R/O. RAYAPUR VILLAGE, KURUBAR ONI, TQ AND DIST: DHARWAD-09. …RESPONDENT (BY SRI. SABEEL AHMAD ADV. FOR SRI. ANAND R. KOLLI, ADV. FOR SOLE RESPONDENT) THIS RFA IS FILED U/S.96 OF CPC, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 22.09.2018 PASSED BY THE LEARNED III ADDL. SENIOR CIVIL JUDGE, HUBBALLI IN F.D.P NO.30/2017 (ANNEXURE-A) AND SET ASIDE/CANCEL THE FINAL DECREE DRAWN PURSUANT TO THE IMPUGNED JUDGMENT AND DECREE 22.09.2018 PASSED BY THE LEARNED III ADDL. SENIOR CIVIL JUDGE, HUBBALLI IN F.D.P NO.30/2017 (ANNEXURE- A) AND ETC. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) 1. These appeals are filed by defendants No.1 to 3 against the Judgment and decree, dated 01.09.2016 passed in O.S.No.375/2014 by III-Additional Senior Civil Judge, Hubballi. The respondent/plaintiff has filed the suit for partition and separate possession of her share in suit property, against the appellants herein. The trial Court decreed the suit. Being aggrieved by the same, the defendants have filed this appeal. 2. For the sake of convenience, the parties are ` referred to as per their ranking before the trial Court. 3. Facts of these cases are as follows: It is the case of plaintiff that, she is a legally wedded wife of Basavantheppa S/o Ningappa Appannavar. The propositus of the family of her husband was one Ningappa and the said Ningappa had two sons namely Madivalappa and Basavantheppa. Both of them are no more at the time of filing of the suit. Madivalappa was married to one - 4 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 Smt.Savakka (defendant No.1). From the said wedlock they have two sons by name Siddappa (defendant No.2) and Kallappa (defendant No.3). Another son of Ningappa by name Basavantheppa married to the plaintiff and they have no issue from the said wedlock. Basavantheppa is also dead. 4. The suit properties in question are ancestral joint family properties of the plaintiff’s and defendants’. As she being a widow of Basavantheppa, the plaintiff claims half share in the suit property. She demanded for partition of the joint family property and defendants refused to effecte the partition. Hence she filed the suit. 5. The contentions of the defendants are that, the plaintiff is not a member of the family of the defendant. Basavantheppa did not marry her and he died unmarried. They claim that the plaintiff filed the suit only to grab the property belonging to the defendants. The defendants further stated that the plaintiff is not the legally weeded wife of Basavantheppa. Therefore she has no rights to - 5 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 demand for partition in the joint family property. It is also contended that plaintiff was married to one Shivappa Shirsangi and from said wedlock plaintiff has a daughter by name Shilpa and a son by name Shivappa. Therefore, plaintiff is not at all related to the family of the defendants. On these reasons prayed to dismiss the suit. 6. The trail Court framed the following issues based on the rival contentions of the parties: 1. Whether plaintiff proves that she is the legally wedded wife of deceased Basavantheppa? 2. Whether plaintiff proves that she is having ½ share in the schedule property? 3. Whether the plaintiff is entitled for the reliefs claimed in the suit? 4. What order or decree? 7. The plaintiff to prove her case examined herself as PW-1 and two other witnesses as PW-2 and PW-3 and got marked Ex.P1 to P11. Defendants examined three witnesses as DW-1 to DW-3 and they got marked 14 documents as Ex.D1 to D14 and closed their evidence. - 6 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 8. The trial Court after hearing of the parties and appreciating the evidence available on record, answered issues No.1 to 3 in the affirmative and issue No.4 as per final order. Accordingly, the trial Court decreed the suit, awarding half share in the property. 9. I have heard the arguments of learned counsel appearing for both the parties. 10. Learned counsel for appellants-defendants submits that respondent-plaintiff failed to prove that she is legally weeded wife of deceased Basavantheppa. She examined PW-2 and PW-3 to prove her marriage with Basavantheppa. In the cross-examination of PW-2 and PW-3 it was brought out that they know nothing about the marriage of plaintiff with Basavantheppa. The documents produced by the plaintiff do not help the plaintiff to prove her case. In the cross-examination of PW-2, he has stated about marriage of plaintiff with Shivappa and she is residing with Shivappa Shirasangi are different facts. He pleads ignorance of the fact that plaintiff married to - 7 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 Shivappa and from the said relationship she has two children. Learned counsel for appellant further submits that even in the cross-examination of PW-3, he has stated that he went to the marriage, it was at night 10:00 p.m; There were so many Basavanna temples, therefore he cannot identify in which Basavanna temple the marriage was performed. He further submits that to prove the marriage, a list of persons who presented gifts is mentioned in Ex.P7. It is pertinent to note that the names of PW-2 and PW-3 are not mentioned in the said list, though they have stated that they gave presentation to the plaintiff, during her marriage. 11. He further submits that in the cross-examination of DW-1 to DW-3, the plaintiff could not get any admission in her favour. All the documents placed on record, such as Aadhar card, Ration card and etc. were created six months prior to filing of the suit. Therefore much importance cannot be given to the said documents. - 8 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 With these reasons, prayed to allow the appeal by setting aside the impugned judgment. 12. Learned counsel for respondent (plaintiff) submits that PW-1 is the widow of Basavantheppa. In her evidence, she has stated about her marriage with Basavantheppa. In her cross-examination nothing was brought out to disbelieve her evidence. PW-2 and PW-3 were examined to prove the marriage. They stated that some other facts cannot be ground to disbelieve the marriage of plaintiff with Basavantheppa. 13. Learned counsel for respondent/plaintiff further submits that the name of the plaintiff is entered in the revenue records, which is at Ex.P1 and P2. Ex.P3 is the mutation extract. Ex.P5 is death extract of Basavantheppa. Ex.P6 is the legal heir certificate given by the Revenue Authority, showing that plaintiff is the widow of said Basavantheppa. Ex.P9A and P10A are copy of Aadhar card and Ration card, which shows name and address as the plaintiff’s. It is also mentioned in the said - 9 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 records that Basavantheppa was her husband. The appellant contends that these documents were obtained about six months prior to the filing of the suit, but it was not their case that the said documents were created for the purpose of the suit. Learned trial Judge has properly considered evidence of both the parties and came to a right conclusion. Hence, respondent prays for dismissal of the appeal. 14. The following points are emerges for my determination are: (i) Whether trial Judge erred in holding that plaintiff is legally wedded of Basavantheppa? (ii) Whether the trail Judge erred in holding that plaintiff is entitled to a half share in the suit property? (iii) Whether interference in the finding of the trial Court is required? (iv) What order? - 10 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 15. My findings on the above said issues are as under: (i) In the affirmative. (ii) In the negative. (iii) In the affirmative. (iv) As per final order for the below: Point No.(i) 16. As stated in the above paragraphs, the relationship between the parties and the claim that the plaintiff is the legally wedded wife of Basavantheppa is seriously in dispute. Looking to the evidence given by PW-1 to PW-3 and suggestion made to defendant Nos.1 to 3, it appears that about two to three years after the marriage, due to ill-treatment and neglect by her husband, the plaintiff has left house of her husband and started residing in her parents’ house. According to Ex.P5 Basavantheppa died in the year 1995. It is not the case of plaintiff that she has been residing in the house of defendants No.1 to 3. It is not case of either side that not Basavantheppa had any other house. Therefore, she has - 11 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 to disclose where exactly and in which house she has been residing after she left the house of Basavantheppa. As per Ex.P5, Basavantheppa was a permanent resident of Amargol. Ex.P9 and Ex.P10 shows that plaintiff has been residing in Rayapur of Dharwad. These documents show that she did not reside with Basavantheppa. 17. A heavy burden lies on the plaintiff to prove that she is the legally wedded wife of Basavantheppa. The plaintiff could not examine her parents to prove her marriage, since they appears to be no more. In her evidence, she has not stated date of her marriage with Basavantheppa or atleast year of the marriage. In her cross-examination, she stated that her husband did not have a Ration card and therefore her name was not mentioned in the Ration card. She also stated that she did not visit to the house of Basavantheppa after his death, though she came to know about death of Basavantheppa from others. She denied the defendants’ suggestions that she was married to one Shivappa and from said marriage - 12 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 she has two children by name Kumar and Shilpa. She denied that she is not legally wedded wife of Basavantheppa. 18. PW-1 in her evidence, has not at all stated about performance of her marriage or rituals followed at the time of her marriage with Basavantheppa. To prove the legal marriage, it is very much necessary to prove that rituals were followed according to their customs and traditions. To prove her marriage with Basavantheppa she examined PW-2. According to PW-2, “during the year 1983 around 8.00 p.m. her marriage was performed with Basavantheppa in Basavanna temple of Amargol. He attended the said marriage. Thereafter, plaintiff went to her husband’s house to lead marital life. She stayed with him for three to four years and thereafter due to bad habits of Basavantheppa, she left him and started residing in her parents’ house at Rayapur.” In his cross- examination he admits that, he is brother-in-law of the plaintiff. He pleads lack of memory regarding date of - 13 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 marriage between Basavantheppa and plaintiff. He further states, the marriage was performed during the night, therefore he is unaware about the exact address of the Basavanna temple. He also stated that due to financial constraints of the plaintiff’s family, the marriage was performed during the night without inviting much person to attend the marriage. 19. In his further cross-examination PW-2 pleads ignorance about marriage of plaintiff with one Shivappa Shirsangi, but he says that her marriage was performed with Basavantheppa. He also says that marriage and residing with Shivappa Shirsangi are two different aspects. He also pleads ignorance regarding birth of two children to plaintiff from Shivappa Shirsangi, but states that Basavantheppa had no issues from plaintiff. 20. PW-2 has also not disclosed any details about performance of the rituals at the time of marriage between Basavantheppa and plaintiff. - 14 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 21. PW-3 is said to be attended the marriage of Basavantheppa with the plaintiff. He has stated that marriage of Basavantheppa and plaintiff was performed about 30 years prior to his evidence at about 8.00 p.m. and around 50 to 60 people attended the said marriage. In his cross-examination, he pleads ignorance about date of marriage. He further stated that after death Basavantheppa plaintiff went to his house. PW-3 in his evidence has stated that the marriage of plaintiff was performed during the night at 10.00 p.m. He does not know the name of swamiji (Priest) who performed the marriage. Even he could not give the address of temple, wherein the marriage of Basavantheppa and plaintiff was performed, but he says that it was in Amargol. Since there are several Basavanna temples, he cannot say specific address of the said temple. PW-3 has also not stated about rituals performed at the time of marriage between Basavantheppa and plaintiff. - 15 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 22. To claim to right to the property belonging to her husband, it is necessary to prove the marriage. Unless it is proved that plaintiff is legally wedded wife of Basavantheppa, she cannot claim a share in the property belonging to him. She has no locus standii to file the suit. The said fact itself is not proved by the plaintiff by evidence of herself and her two witnesses. 23. Defendants examined DW-1 to DW-3. In the evidence of DW-1, the plaintiff’s case was disputed and he has stated that she was not at all related to the family of defendants. In the cross-examination of DW-1 nothing was brought out to believe that plaintiff is legally wedded wife of Basavantheppa. He consistently stated that there was no marriage between plaintiff and Basavantheppa. DW-2 and DW-3 were examined to prove that Basavantheppa did not marry the plaintiff. Looking to the cross- examination of DW-2 and DW-3, it appears they were closely associated with the defendants. If there was a marriage between plaintiff and Basavantheppa, there was - 16 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 no reason for the defendants to deny the said relationship. It appears, during the lifetime of Basavantheppa, the plaintiff never claimed any rights, even right of maintenance from Basavantheppa though plaintiff contends that due to his behavior and bad habits she left him and resided separately. These facts and circumstances probablise the defence of the defendants. 24. Defendants produced the school records of one Shivappa and Shilpa at Ex.D-10 to D-14. Parents name of Kumar and Shilpa, who are said to be the plaintiff’s children, are mentioned as “Mahadevi and Shivappa Shirsangi.” Except certain vague answers given by PW-2, PW-1 and PW-3 denied that is said Shivappa Shirsangi is husband of plaintiff. Learned counsel for respondent submits that there might be a person by name Mahadevi and that does not mean that Ex.D-10 to D-14 disproves the relationship Basavantheppa and the plaintiff. While such possibility cannot be ruled out, however burden - 17 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 remains on the plaintiff to establish her relationship with Basavantheppa. 25. In the recent Judgment of Hon’ble Apex Court in the case of Dolly Rani vs. Manish Kumar Chanchal1, it is held by the Hon’ble Apex Court that to prove matrimonial relationship, the plaintiff shall prove the performance of marriage rituals. The facts of the said case may be different, however principle of law laid down in the said case is applicable to present case. In this case also marriage is in dispute. To claim matrimonial rights, it is necessary to prove the performance of marriage rituals. In this case also plaintiff has not proved the same. 26. She had not examined any neighbors or witnesses, when she was residing with Basavantheppa, to prove that after her marriage with Basavantheppa she resided with him at least for a period of two to three years as contended by her. The said Basavantheppa died in the year 1995. Even during the lifetime of Basavantheppa, she 1 2024 SCC OnLine SC 754 - 18 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 did not reside with him and she has not explained why she did not claim her rights from the year 1995 untill 2014. All these reasons creates serious doubt regarding her marital status or relationship with Basavantheppa. 27. Learned trial Judge in the impugned Judgment held that plaintiff is a wife of Basavantheppa on the basis of presumption and assumptions. Learned trial Judge in paragraph No.15 of the impugned Judgment held that generally a woman would not come and assert that she is wife of a particular person. It may be belief, but there is no legal presumption to that effect. Contention of the appellants that just to grab the property belonging to defendants’, plaintiff has been falsely contending that she is legally wedded wife of Basavantheppa and she is entitled for share in the property. Such contentions also cannot be ruled out. Under such circumstances only on the basis of presumptions that no woman could come forward and claim that she is wife of a particular person, cannot be - 19 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 ground to decree the suit. For the above said reason, the point No.(i) is answered in the affirmative. Point No.(ii) 28. Plaintiff failed to prove that she is legally wedded wife of Basaventhappa and hence question of succeeding to his property do not arise. Hence, point No.(ii) is answered in the negative. Point No.(iii) 29. Learned trial Judge did not consider as to whether the plaintiff was able to prove that she is legally wedded wife of Basavantheppa. 30. Learned trial Judge observed in the impugned judgment that defendants failed to prove that she is wife of Shivappa with reliable evidence. It is a defence of the defendant. Merely defendant failed to prove the same cannot lead to a presumption that plaintiff proved her relationship with Basavantheppa. The said contention is also not acceptable. Therefore, the findings of the trial Judge are erroneous, arbitrary and unfounded. Right over - 20 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 immovable property cannot be declared on the basis of presumption. Therefore interference in the said finding is required. For the above said reasons, point No.(iii) is answered in the affirmative. 31. It appears after passing of the decree in O.S.No.375/2014 dated 01.09.2016 plaintiff filed a Final Decree Proceedings in FDP No.30/2017 before the Senior Civil Judge at Hubli. The trial Court after following of procedure prescribed under Order XX Rule 18 of CPC allowed the Final Decree proceedings. Accepting the report of the commissioner, the concerned Court ordered to draw the Final Decree by order dated 22.09.2018. The said order is challenged by the defendants in RFA No.100193/2019. In view of the orders passed in the RFA No.100284/2016, wherein Judgment and decree passed by the trial Court is set-aside and suit is dismissed. The final decree drawn by the trial Court does not survive and needs to be set-aside. - 21 - NC: 2025:KHC-D:4227 RFA No. 100284 of 2016 C/W RFA No. 100193 of 2019 Point No.(iv) 32. For the reasons stated above, I proceed to pass the following: (i) The appeal in RFA No.100284/2016 is allowed. (ii) The Judgment and decree passed in O.S.No.375/2014 dated 01.09.2016 by the learned III Additional Senior Civil Judge, Hubli is set-aside. (iii) The RFA No.100193/2019 is allowed. Final decree drawn by the III Additional Senior Civil Judge, Hubli in FDP No.30/2017 dated 22.09.2018 is set-aside. (iv) Copy of the Judgments along with TCR shall be sent to the trial Court. Sd/- (UMESH M ADIGA) JUDGE RHR/ CT-AN List No.: 1 Sl No.: 10