- 1 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100287 OF 2019 (PAR/POS) BETWEEN: SHRI. PARAPPA BASAVANTAPPA MULWAD AGE: 71 YEARS, OCC: AGRICULTURE, R/O: KALLOLI, TQ: GOKAK, BELAGAVI-591307. …APPELLANT (BY SRI. SANTOSH B. RAWOOT, ADVOCATE) AND: 1 . SMT. NAGAWWA @ LAXMI W/O. ANNAPPA NAGNUR AGE: 36 YEARS, OCC: HOUSEHOLD WORK AND AGRICULTURE, R/O: KALLOLI, TQ: GOKAK, BELAGAVI 591307. 2 . SMT. MANJULA W/O. GURUNATH MARIHAL AGE: 30 YEARS, OCC: HOUSEHOLD WORK AND AGRICULTURE, R/O: KALLOLI, TQ: GOKAK, BELAGAVI-591307. 3 . SMT. SHANTAVVA W/O. PARAPPA MULWAD AGE: 58 YEARS, OCC: HOUSEHOLD WORK, R/O: KALLOLI, TQ: GOKAK, BELAGAVI-591307. 4 . SHRI. MALLAPPA S/O. PARAPPA MULWAD AGE: 29 YEARS, OCC: AGRICULTURE, Digitally signed by BHARATHI H M Location: HIGH COURT OF KARNATAKA Date: 2025.02.05 12:52:11 +0530 - 2 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 R/O: KALLOLI, TQ: GOKAK, BELAGAVI-591307. 5 . SMT. MAHADEVI W/O. PARAPPA MULWAD D/O. BHIMAPPA HONNOLI AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O: KALLOLI, TQ: GOKAK, BELAGAVI-591307. 6 . SMT. LALITA W/O. HANUMANT HONNOLI AGE: 33 YEARS, OCC: HOUSEHOLD WORK, R/O: KALLOLI, TQ: GOKAK, BELAGAVI-591307. 7 . SHRI. BASAPPA S/O. PARAPPA MULWAD AGE: 29 YEARS, OCC: AGRICULTURE, R/O: KALLOLI, TQ: GOKAK, BELAGAVI-591307. 8 . SHRI. SHIVAPPA S/O. PARAPPA MULWAD AGE: 28 YEARS, OCC: AGRICULTURE, R/O: KALLOLI, TQ: GOKAK, BELAGAVI-591307. …RESPONDENTS (BY SRI. CHETAN MUNNOLI, SMT. SURABHI KULKARNI AND SRI. RAGHUVEER R. SATTIGERI, ADVOCATES FOR R1 AND R2; R3 IS DELETED VIDE ORDER DATED 18.10.2019; R4 SERVED; SRI. SANTOSH S. HATTIKATAGI, ADVOCATE FOR R5 TO R8) THIS RFA IS FILED UNDER SECTION 96 R/W. ORDER 41 RULE 1 OF CPC., PRAYING TO, SET ASIDE THE JUDGMENT AND DECREE DATED 26.03.2019 AND DECREE PASSED IN O.S.NO.195/2013 BY THE CIVIL JUDGE, PRL. SENIOR CIVIL JUDGE GOKAK DISMISSING THE SUIT OF THE PLAINTIFFS, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 20.01.2025, THIS DAY, UMESH M ADIGA, J., DELIVERED THE FOLLOWING: - 3 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) Defendant No.1 in O.S.No.195/2013, has preferred this appeal against the judgment and decree passed in the said case dated 26th March 2019, on the file of learned Prl.Senior Civil Judge, Gokak, (for short, `trial Court’). 2. We refer to the parties as per their ranks before the trial Court. 3. Plaintiffs No.1 and 2 (respondents No.1 and 2 herein) have filed the suit contending that plaintiffs and defendant No.3 are daughters and son of defendants No.1 and 2; Defendant No.4 is the wife and defendants No.5 to 7 are children of defendant No.1, but there was no marriage between defendant No.1 and defendant No.4; Therefore defendants No.4 to 7 are not at all related to the family of plaintiffs and defendants No.1 to 3. - 4 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 4. Plaintiffs further contended that suit schedule properties are ancestral joint family properties of plaintiffs and defendants No.1 to 3; They are in joint possession and enjoyment of plaintiffs and defendants No.1 to 3; Defendants No.4 to 7 have no right over the said properties; There was no partition effected between plaintiffs and defendants No.1 to 3; Defendant No.1 prior to filing of the suit, started distributing the income earned from ancestral properties to defendants No.4 to 7. The plaintiffs came to know that in respect of Survey No.169/1A/1B, measuring 1 acre 24 guntas, situated at Kalloli, Gokak Taluk, revenue records were mutated in the name of defendant No.4; Therefore, they demanded defendant No.1 to effect partition and allot their share in the ancestral properties; Defendant No.1 refused to effect partition, therefore they were constrained to file the suit. 5. The contentions of defendant No.1 is that defendant No.4 is his legally wedded wife and defendant Nos.5 to 7 are his legitimate children born from his - 5 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 wedlock with defendant No.4. He admits his relationship with defendant No.2 and birth of plaintiffs and defendant No.3 from the said illicit relationship. He also contends that defendant No.2 is not his legally wedded wife and plaintiffs as well as defendant No.3 are illegitimate children born to him through defendant No.2. Therefore, they have no right over the suit schedule properties and they are not entitled for a share in the suit schedule properties. 6. Defendant No.1 has also contended that suit properties are not ancestral properties of the plaintiffs and defendant No.3. He further contends that Survey No.169/1A/1B, measuring 1 acre 24 guntas was purchased by defendant No.4 out of the funds given to her by her brother and it is not the property belonging to defendant No.1 or his ancestors. Plaintiffs are not entitled for any share. With these reasons, he prayed to dismiss the suit. 7. From the rival contentions of the parties, the trial Court framed following issues : - 6 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 (1) Whether the plaintiffs prove that the defendant-2 is the legally wedded wife and themselves and the defendant-3 are the legitimate children of defendant-1? (2) Whether the plaintiffs further prove that the suit properties are ancestral properties of the joint family comprising themselves and the defendants-1 to 3? (3) Whether plaintiffs are entitled for the relief of partition as prayed? (4) What order or decree? 8. Plaintiffs to prove their contentions examined PW-1 to PW-3 and got marked Exs.P-1 to P-33. Defendant No.1 to prove his contentions examined himself as DW-1 and examined DW-2 and not marked any documents on his behalf. 9. The trial Court after hearing both parties and appreciating the pleadings and evidence on record, answered issue Nos.1 to 3 in the affirmative and decreed the suit as prayed by the impugned judgment and decree - 7 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 dated 26th March 2019. Same is challenged by defendant No.1 in the present appeal. 10. We have heard the learned counsels appearing for both parties. 11. Learned counsel appearing for the appellant/ defendant No.1 would submit that defendant No.1 in his written statement has admitted that defendant No.4 is his legally wedded wife and defendant Nos.5 to 7 are children born from the said marital relationship. He stoutly denied his relationship with defendant No.2 as legally wedded wife and he contends that plaintiffs and defendant No.3 are his illegitimate children. It is the evidence of DW-1 that defendant No.4 is his first wife. Learned trial Judge has not considered these facts and based on the assumptions and presumptions, accepted the case of the plaintiffs and decreed the suit. The learned trial Judge has not properly assigned the reasons to hold that defendant No.2 was the first wife of defendant No.1 and plaintiffs as well as defendant No.3 are his legitimate children. He has - 8 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 further contended that suit properties are not ancestral and joint family properties of plaintiffs and defendant No.3. Therefore they were not entitled for any share in the suit properties. 12. Learned counsel for defendant No.1 further contends that plaintiffs have not proved that deceased defendant No.2 was legally wedded wife of defendant No.1. The evidence produced by defendant No.1 in this regard is not reliable. Merely defendant No.1 admitted that plaintiffs are his daughters and he performed their marriage does not mean that he admitted the defendant No.2 as his legally wedded wife of the plaintiff. The trial Court has not considered these facts properly and erroneously appreciated the evidence and decreed the suit, which calls for interference. 13. Learned counsel for plaintiffs supported the impugned judgment and submits that there were no reasons to interfere in the said findings. The appellant/defendant No.1 in the written statement more or - 9 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 less completely denied the case of the plaintiffs and pleaded that they were not at all related to him; however during the course of evidence he admitted that defendant No.2 was his first wife and plaintiffs and defendant No.3 are his children. He also admitted all the facts pleaded by the plaintiffs, during his evidence. Looking to the age of plaintiffs as well as defendant No.3, it can be safely accepted that defendant No.2 is the first wife of defendant No.1. Defendant No.1 in his written statement not seriously disputed about he inheriting the suit properties. He also admitted that he was an agriculturist and he does not have any other properties. He also admits that properties are inherited by him. The said evidence shows that other properties purchased by the defendant No.1 are from the joint family nucleus. Therefore, plaintiffs are entitled for a share in the suit schedule properties. 14. Learned counsel further submits that defendant No.4 is the second wife and defendant Nos.5 to 7 are born to her through defendant No.1 and they are illegitimate - 10 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 children. Therefore, they will get a share in the share of properties held by defendant No.1, that too, only after the death of defendant No.1 as per Section 16(3) of Hindu Succession Act, 1956. That was considered by the trial Court and rightly held that at present they are not entitled for a share. Contrary to the admitted facts, arguments were advanced by the appellant, which is not tenable. Hence prayed to dismiss the appeal. 15. Following points emerge for our determination : (i) Whether the learned trial Judge erred in holding that defendant No.2 is the first wife of defendant No.1 and plaintiffs and defendant No.3 legitimate children of defendant No.1 and entitled for share in the suit properties? (ii) Whether learned trial Judge erred in decreeing the suit and interference in the said finding is required? (iii) What order or decree? 16. Point No.1 : In the plaint, the plaintiffs have stated about their relationship with defendant Nos.1 and 2 as well as defendant No.3. In the written statement, - 11 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 defendant No.1 disputed his relationship with plaintiffs and defendants No.2 and 3. He has contended that defendant No.4 is his legally wedded wife and defendants No.5 to 7 are his legitimate children born from his wedlock with defendant No.4. He disputes his marriage with the defendant No.2 but contends that from his physical relationship with defendant No.2, plaintiffs and defendant No.3 were born. He contends that defendant No.2 is not his legally wedded wife. 17. PW-1 is plaintiff No.1 and daughter of defendant No.1. In her evidence she has reiterated the plaint averments. In her cross-examination, defendant No.1 suggested that defendant No.2 is not his legally wedded wife, but he had relationship with her and out of the said relationship, plaintiffs and defendant No.3 were born. PW-1 denied the suggestion of defendant No.1 that he has not married to defendant No.2. She also denied the suggestion that defendants No.5 to 7 alone are his legitimate children. - 12 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 In the thorough cross-examination, nothing was brought out to discard her evidence and documents produced by her at Exs.P-1 to P-13. 18. PW-2 is the maternal aunt of defendant No.2. She has stated that marriage of defendants No.1 and 2 was performed about fourty years prior to her evidence at Kalloli village in front of house of defendant No.1 in accordance with the customs prevailing in the Veerashiva Lingayath community. She further stated that after the marriage, defendant No.2 went to the house of defendant No.1 to lead marital life. From the said marriage of defendant Nos.1 and 2, plaintiffs and defendant No.3 were born. She further stated that when PW-1 was aged about 9 years, defendant No.1 had illicit relationship with defendant No.4 and defendant No.4 was not the legally wedded wife of defendant No.1. Defendant No.4 married with one Hanumanth Koujalagi and the said Hanumanth Koujalagi did not obtain any divorce from defendant No.4. She, her husband and her maternal aunt repeatedly - 13 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 requested defendant No.1 to discontinue his relationship with defendant No.4, still he did not heed to their request. 19. In the cross-examination of PW-2 suggestions made by the defendant No.1 were denied. She has stated that marriage of defendant No.1 and defendant No.2 was performed in front of house of defendant No.1 in Kalloli village. One Mathapati Swamy had performed the marriage. No photographs were taken at the time of marriage. At the time of marriage of defendant No.2 she was aged about 18 years. The evidence of PW-2 is reliable. Merely she was close relative of defendant No.2 is not a ground to reject or discard her evidence. 20. Plaintiffs examined elder sister of defendant No.2. Her evidence is incomplete and hence cannot be considered. 21. In the cross-examination, DW-1, more or less completely admitted the case of the plaintiffs. Some of the relevant portions of the evidence were extracted and - 14 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 incorporated in the impugned judgment by the learned trial Judge. Therefore there is no need to reproduce the same. DW-1 admitted that he married defendant No.2 and from the said marriage he has children i.e., plaintiffs and defendant No.3. He also admitted that he brought up them, educated them and performed their marriages. 22. In his cross-examination DW-1 has stated that, when he married defendant No.4, he was aged about 25 years and age of defendant No.4 was 20 years. He further stated that age of plaintiffs No.1, 2 and defendant No.3 was 35, 30 and 20 years respectively. He has stated that he got admitted them to school and provided their dates of birth to the school as 22.07.1982, 10.06.1989, and 20.07.1990 respectively. He has also stated that age of defendants No.5 to 7 are 30, 26 and 26 years respectively. Further DW-1 admits in his cross-examination that plaintiffs and defendant No.3 were born from his wedlock with defendant No.2 and defendant No.2 is his legally wedded wife. During the year 1975 he was residing in - 15 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 House No.10A of Kalloli village. In the voter’s list of the year 1975, the name and address of defendant No.2 was also showing that she was residing in the very same house. 23. Defendant No.1 examined another witness, who is the resident of his village and neighbour of defendant No.1, as DW-2. DW-2 in his evidence has stated that defendant No.4 is the legally wedded wife of defendant No.1 and defendants No.5 to 7 are legitimate children of defendant No.1 and defendant No.4. In his cross-examination, DW-2 has stated that “when defendant No.1 married to defendant No.2, their age was 25 years and 20 years respectively. When defendant No.1 married to defendant No.4, their age was 35 years and 30 years respectively.” The said evidence also clearly indicates that defendant No.1 married to defendant No.2 prior to his marriage with defendant No.4. He has also stated that when parents of defendant No.1 - 16 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 were alive, both defendants No.1 and 2 were residing with them till their death. 24. Plaintiffs have produced Ex.P-21 i.e., voters list of the year 2014 and voters list of the year 1975 is produced at Ex.P-22; certificates issued by school in respect of plaintiffs No.1 and 2 at Exs.P-27 and P-28 respectively; school certificate of defendant No.3 is produced at Ex.P-29; and voters list of the year 1975 is again produced at Exs.P-30 and P-31. In all these documents name of defendant No.1 is shown as father of plaintiffs and defendant No.3 and husband of defendant No.2. During the course of cross-examination, DW-1 admits that defendant No.2 was his legally wedded wife and plaintiffs and defendant No.3 are his legitimate children. In view of the said admissions, there is no need of much discussion of the documents produced by the plaintiffs. The trial Court considering all these documents, arrived at a right conclusion. - 17 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 25. Defendants No.4 to 7 did not enter the witness box, especially defendant No.4 whom defendant No.1 said to have married prior to his relationship with defendant No.2. Why defendant No.1 could not examine defendant No.4 or why defendant No.4 herself did not enter the witness box to corroborate the defence of defendant No.1 is not explained. The above said evidence produced by the plaintiffs proves that defendant No.2 is the legally wedded wife of defendant No.1 and from the said marriage, plaintiffs and defendant No.3 were born. Therefore they are legitimate children of defendant No.1. During subsistence of his marriage with defendant No.2, defendant No.1 married to defendant No.4 and hence it is illegal/void marriage and defendants No.5 to 7 are illegitimate children of defendant No.1 born from his second marriage. 26. Plaintiffs have produced RTCs of the suit properties at Exs.P-1 to P-20 and Exs.P-23 to P-26. Defendant No.1 did not dispute that he succeeded to the - 18 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 property from his ancestors. In respect of one of the property he contends that, it was purchased in the name of defendant No.4 from the funds given by her parents. Defendant No.4 did not lead her evidence and did not examine any witnesses to corroborate the case of defendant No.1. Therefore the contentions of defendant No.1 that one of the property was purchased in the name of defendant No.4 from the funds given by her parents is not proved. 27. Learned trial Judge considered the contentions of both the parties and rightly came to the conclusion that defendant No.2 is the legally wedded wife; Plaintiffs and defendant No.3 are legitimate children of defendant No.1. From the evidence of defendants, it is clear that defendant No.1 has extra marital relationship with defendant No.4 after his marriage with defendant No.1. Therefore even if there was marriage between defendants No.1 and 4, it was a void marriage and defendant No.4 is second wife of defendant No.1. Hence, defendants No.5 to - 19 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 7 are not legitimate children of defendant No.1. Therefore during the life time of defendant No.1, they are not entitled for a share. They may get a share in the properties belonging to defendant No.1, after his death. The trial Court has also considered this fact. 28. For the aforesaid discussions, we are of the view that trial Court had come to right conclusion and it does not call for any interference by this Court. Hence, we answer point Nos.1 and 2 in the negative and proceed to pass the following: ORDER (i) Appeal is dismissed. No order as to costs. (ii) The judgment and decree dated 26th March 2019, passed by the learned Prl.Senior Civil Judge, Gokak, in O.S.No.195/2013, is confirmed. - 20 - NC: 2025:KHC-D:2129-DB RFA No. 100287 of 2019 Registry is directed to send a copy of this judgment along with trial Court records to the concerned trial Court. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE BK List No.: 1 Sl No.: 1