- 1 - NC: 2025:KHC-D:6144 RSA No. 100938 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 7TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100938 OF 2019 (DEC/INJ-) BETWEEN: 1. SMT.VISHALAXI W/O. LAXMAN KOTI, AGE: 28 YEARS, OCC: HOUSEHOLD WORK, R/O. INGALAGI-587 313, TQ: MUDHOL, DIST: BAGALJKOTE, NOW R/AT. SOKANADAGI-587 204, TQ & DIST: BAGALKOTE. 2. SMT. LAXMIBAI W/O. RAMACHANDRA ANTAPUR, AGE: 48 YEARS, OCC: AGRICULTURE & HOUSEHOLD WORK, R/O. INGALAGI-587 313, TQ: MUDHOL, DIST: BAGALJKOTE, NOW R/AT. SOKANADAGI-587 204, TQ & DIST: BAGALKOTE. …APPELLANTS (BY SRI. ABHINANDAN M. GUNDAWADE & SRI. CHETAN MUNNOLI, ADVOCATES) AND: 1. SMT. MUTTAWWA W/O. CHANABASAPAP ANTAPUR, AGE:78 YEARS, OCC: HOUSEHOLD WORK, R/O INGALAGI-587 313, TQ: MUDHOL, DIST: BAGALKOTE. 2. SMT. BHARATI W/O. RAMACHANDRA ANTAPUR, MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:6144 RSA No. 100938 of 2019 AGE: 38 YEARS, OCC: HOUSEHOLD WORK, R/O INGALAGI-587 313, TQ: MUDHOL, DIST: BAGALKOTE. 3. KUMARI. REKHA D/O. RAMACHANDRA ANTAPUR, AGE: 16 YEARS, OCC: NIL R/O INGALAGI-587 313, TQ: MUDHOL, DIST: BAGALKOTE. 4. KUMARI. RASHIMI D/O. RAMACHANDRA ANTAPUR, AGE:14 YEARS, OCC: NIL R/O INGALAGI-587 313, TQ: MUDHOL, DIST: BAGALKOTE. SINCE RESPONDENT NO.4 & 5 ARE MINORS REPRESENTED BY THEIR NATURAL MOTHER & MINOR GURADIAN- SMT. BHARATI W/O. RAMACHANDRA ANTAPUR I.E. RESPONDENT NO.2. 5. MALLAPPA S/O. CHANABASAPPA ANTAPUR. AGE: 53 YEARS, OCC: AGRICULTURE, R/O INGALAGI-587 313, TQ: MUDHOL, DIST: BAGALKOTE. 6. PUNDALIK S/O. CHANABASAPPA ANTAPUR, AGE: 50 YEARS, OCC: AGRICULTURE, R/O INGALAGI-587 313, TQ: MUDHOL, DIST: BAGALKOTE. 7. SHRIKANT S/O. CHANBASAPPA ANTAPUR, AGE: 46 YEARS, OCC: AGRICULTURE, R/O INGALAGI-587 313, TQ: MUDHOL, DIST: BAGALKOTE. - 3 - NC: 2025:KHC-D:6144 RSA No. 100938 of 2019 8. SMT. SHANTAWWA W/O. SHRIKANT ANTAPUR, AGE: 41 YEARS, OCC: AGRICULTURE, R/O INGALAGI-587 313, TQ: MUDHOL, DIST: BAGALKOTE. 9. CHIDANAND S/O. CHANABASAPPA ANTAPUR, AGE: 43 YEARS, OCC: AGRICULTURE, R/O INGALAGI-587 313, TQ: MUDHOL, DIST: BAGALKOTE. 10. GURUKUMAR S/O. CHANABASAPPA ANTAPUR, AGE: 40 YEARS, OCC: AGRICULTURE, R/O INGALAGI-587 313, TQ: MUDHOL, DIST: BAGALKOTE. …RESPONDENTS (R1, R2, R5, R6, R9 & R10 HELD SUFFICIENT; R3 & R4 ARE MINOR REPRESENTED BY R2; R7 & R8 SERVED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC 1908, AGAINST THE JUDGEMENT AND DECREE DATED 03.07.2019 PASSED IN R.A.NO.69/2015 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, BAGALKOT, DISMISSING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 01.08.2015, PASSED IN O.S.NO.74/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL, PARTLY DECREEING THE SUIT FILED FOR DECLARATION, PARTITION AND SEPARATE POSSESSION. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH - 4 - NC: 2025:KHC-D:6144 RSA No. 100938 of 2019 ORAL JUDGMENT This appeal is preferred by the plaintiffs challenging the judgment and decree dated 03.07.2019 in R.A.No.69/2015 on the file of the I-Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi1 dismissing the appeal and setting aside the judgment and decree dated 01.08.2015 in O.S.No.74/2012 on the file of the Senior Civil Judge and JMFC, Mudhol2 decreeing the suit of the plaintiffs in part. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiffs that the plaintiffs and defendants constitute a joint family. The plaintiff No.2 is first wife of late-Ramachandra Antapur and plaintiff No.1 is the daughter of late-Ramachandra Antapur through plaintiff No.2. Defendant No.3 is second wife of late-Ramachandra and in their wedlock defendant No.4 and 5 were born. It is the case of the plaintiffs that the plaintiffs are entitled for legitimate share in the joint family properties of late- 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 5 - NC: 2025:KHC-D:6144 RSA No. 100938 of 2019 Ramachandra Antapur along with defendant No.1, 2, 6, 7, 8, 10 and 11. Hence, plaintiffs have filed suit in O.S.No.74/2012 seeking partition and separate possession in respect of the suit schedule properties stating that the suit properties are the ancestral properties of the plaintiffs and the grandfather of plaintiff No.1-Channabasappa Antapur (defendant No.1). Hence, sought for share in the suit properties. 3.1. After service of notice, the defendants entered appearance and filed detailed written statement. It is the specific contention of the defendants that the son of defendant No.1 and 2 viz., Ramachandra Antapur married plaintiff No.2 and the marriage was dissolved as per the judgment and decree in M.C.No.22/1994. It is also stated that the said Ramachandra Antapur died on 12.07.2001 leaving behind the plaintiff No.1 and 2 and defendant No.3 to 5 and therefore, sought for equitable share in the suit schedule properties. 3.2. The Trial Court, based on the pleadings on record, has framed issues for its consideration. In order to establish - 6 - NC: 2025:KHC-D:6144 RSA No. 100938 of 2019 their case, the plaintiffs have examined three witnesses as PW.1 to PW.3 and produced 20 documents and same were marked as Exs.P.1 to P.20. The defendants have examined seven witnesses as DW.1 to DW.7 and got marked 117 documents as Exs.D.1 to D.117. 3.3. The Trial Court, after considering the material on record, by its judgment and decree dated 01.08.2015 decreed the suit in part and feeling aggrieved by the same, the plaintiffs have preferred R.A.No.69/2015 on the file of the First Appellate Court and same was resisted by the defendants. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 03.07.2019, dismissed the appeal, consequently set aside the judgment and decree in O.S.No.74/2012. Feeling aggrieved by the same, the plaintiffs, have preferred this Regular Second Appeal. 4. This Court by order dated 13.09.2024 framed the following substantial question of law. - 7 - NC: 2025:KHC-D:6144 RSA No. 100938 of 2019 i. Whether, under the facts and circumstances involved in the case, both the Trial Court and First Appellate Court are justified in holding that there was prior partition only by relying on Ex.D.4 i.e., ME.No.2098? ii. Whether, under the facts and circumstances involved in the case, both the Trial Court and First Appellate Court are justified in reversing the judgment and decree passed by the trial Court though there is no appeal by the defendants, but on the appeal filed by the plaintiff for seeking partition properties in other properties? iii. Whether, under the facts and circumstances involved in the case, both the Trial Court and First Appellate Court are justified in not granting share to plaintiff No.2 holding that, divorced wife is not entitled to share, whereas no permanent alimony has been given to her by her deceased husband Ramchandra at the time of divorce? iv. Whether, under the facts and circumstances involved in the case, both the Trial Court and First Appellate Court are justified in not - 8 - NC: 2025:KHC-D:6144 RSA No. 100938 of 2019 granting share in the house property and other suit properties? 5. I have heard Sri.Abhinandan Gundawade, learned counsel appearing for the appellants. The respondents, though served with notice have remained absent. 6. Learned counsel Sri. Abhinandan Gundawade, appearing for the appellants, contended that the First Appellate Court has not applied its mind while passing the impugned judgment and decree as the appeal came to be dismissed and set aside the judgment and decree passed by the Trial Court and therefore, it is contended by the learned counsel appearing for the appellants that the First Appellate Court has not considered the scope of Order XLI Rule 31 of CPC and also the judgment of the Hon’ble Supreme Court in the case of Santosh Hazari v. Purushottam Tiwari (Dead) By LRs3. 7. In the light of the submission made by the learned counsel appearing for the appellants, I have carefully examined the findings recorded by both the Courts below 3 (2001) 3 SCC 179 - 9 - NC: 2025:KHC-D:6144 RSA No. 100938 of 2019 and perused the records. In order to understand the relationship between the parties, the genealogy of the original propositus-Channabasappa Antapur (defendant No.1) reads as under: Chanabasappa Antapur (D1) Smt. Muttawwa (wife) (D2) Mallappa Pundlik Ramachandra Shrikant Chidanand Gurukumar (D6) (D7) (Died) (D8) (D10) (D11) Shantawwa (wife-D9) Bharati Laxmibai (2nd wife) (1st wife) (D3) (P2) Vishalaxi (Daughter) (P1) Rekha Rashmi (Daughter) (Daughter) (D4) (D5) 8. Perusal of the genealogy would indicate that the defendant No.1 and 2 had six children viz., Mallappa - 10 - NC: 2025:KHC-D:6144 RSA No. 100938 of 2019 (Defendant No.6), Pundalik (Defendant No.7), Ramachandra (father of plaintiff No.1 and defendant No.4 and 5), Srikant (Defendant No.8), Chidanand (Defendant No.10) and Gurukumar (Defendant No.11). It is not in dispute that the suit schedule properties are the ancestral properties of the parties. It is also submitted by the learned counsel for the appellants that the defendant No.1 is no more and therefore, all the children of defendant No.1 and 2 along with defendant No.2 are entitled for 1/7th share each in the suit schedule properties, The share of late Ramachandra is 1/7th share in the suit schedule properties. It is also to be noted that the marriage between late Ramachandra and plaintiff No.2 was dissolved in M.C.No.22/1994 on the file of Principal Judge, Family Court, Bagalkot. Thereafter, Ramachandra married defendant No.3. In that view of the matter, plaintiff No.1 and defendant No.3 to 5 are entitled for 1/4th share each in 1/7th share of late Ramachandra i.e. plaintiff No.1 and defendant No.3 to 5 are entitled for 1/28th share each in the suit schedule properties of defendant No.1. It is also to be noted that, the First Appellate Court has not applied its mind in a - 11 - NC: 2025:KHC-D:6144 RSA No. 100938 of 2019 manner known to law. In that view of the matter, the substantial question of law framed above favours the plaintiff No.1 and accordingly, I pass following: ORDER i) The appeal is allowed. ii) Judgment and decree dated 03.07.2019 in R.A. No.69/2015 on the file of I-Additional District and Sessions Judge, Bagalkot sitting at Jamakhandi is hereby set aside. iii) Judgment and decree dated 01.08.2015 in O.S. No.74/2012 on the file of the Senior civil Judge and JMFC, Mudhol is hereby set aside in part and the shares of the parties are modified as stated above. iv) In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. Sd/- (E.S.INDIRESH) JUDGE YAN CT-MCK, List No.: 1 Sl No.: 43