- 1 - NC: 2025:KHC-D:3174 RSA No. 100917 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100917 OF 2017 (PAR) BETWEEN: 1. SMT. MAHADEVI W/O SHADAKSHARAYYA HIREMATH AGE: 49 YEARS, OCC: AGRICULTURE & HOUSEHOLD WORK, R/O: RAMANAL, TALUK: KALAGHATAGI, DIST: DHARWAD, NOW R/AT: HIREHARAKUNI, TALUK: KUNDGOL, DIST: DHARWAD-581113. 2. SMT. IRAMMA @ LAXMI W/O MUTTAYYA HUNGUNDMATH, AGE: 31 YEARS, OCC: AGRICULTURE & HOUSEHOLD WORK, R/O: BYALYAL, TALUK: NAVALGUND, DIST: DHARWAD-582208. …APPELLANTS (BY SRI H.M. DHARIGOND, ADVOCATE) AND: 1. SHADAKSHARAYYA S/O MALLAYYA HIREMATH AGE: 52 YEARS, OCC: AGRICULTURE, R/O: RAMANAL, TALUK: KALAGHATAGI, DIST: DHARWAD-581204. 2. SMT. PARVATEWWA W/O SHADAKHSHARAYYA HIREMATH, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, R/O: RAMANAL, TALUK: KALAGHATAGI, DIST: DHARWAD-581204. 3. AISHWARAYA D/O SHADAKHSHARAYYA HIREMATH, AGE: 26 YEARS, OCC: HOUSEHOLD WORK, R/O: RAMANAL, TALUK: KALAGHATAGI, DIST: DHARWAD-581204. MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:3174 RSA No. 100917 of 2017 4. RATNA D/O SHADAKHSHARAYYA HIREMATH, AGE: 24 YEARS, OCC: HOUSEHOLD WORK, R/O: RAMANAL, TALUK: KALAGHATAGI, DIST: DHARWAD-581204. 5. DEEPA D/O SHADAKHSHARAYYA HIREMATH, AGE: 17 YEARS, OCC: STUDENT, REPRESENTED BY MOTHER GUARDIAN RESPONDENT NO.2. R/O: RAMANAL, TALUK: KALAGHATAGI, DIST: DHARWAD-581204. 6. GANGAYYA S/O MALLAYYA HIREMATH AGE: 54 YEARS, OCC: AGRICULTURE, R/O: RAMANAL, TALUK: KALAGHATAGI, DIST: DHARWAD-581204. …RESPONDENTS (BY SRI H.R.GUNDAPPA, ADVOCATE FOR R1 TO R5, R6- HELD SUFFICEINT) THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 31.07.2017 PASSED BY THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD, PASSED IN R.A.NO.167/2016 AND CONFIRM THE JUDGMENT AND DECREE DATED 04.06.2016 PASSED IN O.S.NO.207/2013 PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE AT HUBBALLI. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH - 3 - NC: 2025:KHC-D:3174 RSA No. 100917 of 2017 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH) This appeal is preferred by the plaintiffs assailing the judgment and decree dated 31.07.2017 in R.A.No.167/2016 on the file of the IV Additional District and Sessions Judge, Dharwad (for short “the First Appellate Court”) allowing the appeal and setting aside the judgment and decree dated 04.06.2016 in O.S.No.207/2013 on the file of the III Additional Senior Civil Judge, Hubballi (Itinerary Court at Kalaghatagi) (for short “the Trial Court”) decreeing the suit in part. 2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court. 3. It is the case of the plaintiffs that plaintiff No.1 is the wife of defendant No.1 and plaintiff No.2 is the daughter of plaintiff No.1 and defendant No.1. It is the case of the plaintiffs that defendant No.2 is the second wife of defendant No.1 and defendants No.3 to 5 are the children of defendant No.1 through second wife (defendant No.2). It is stated in the plaint that the suit schedule properties are belonging to the father of defendant No.1-Mallayya and on his demise, the property was devolved amongst the children of Mallayya. It is the case of the - 4 - NC: 2025:KHC-D:3174 RSA No. 100917 of 2017 plaintiffs that the plaintiffs sought for share in the suit schedule properties as defendant No.1 was intending to gift the A schedule property in favour of defendant No.2 and therefore, O.S.No.207/2013 was filed before the Trial Court seeking partition and separate possession in respect of the suit schedule properties. 3.1. On service of notice, defendants No.1 to 4 entered appearance through their counsel and filed detailed written statement denying the averments made in the plaint. It is the case of the defendant No.1 that the defendant No.1 has purchased the land bearing Survey No.67/1B measuring 1 Acre in the name of plaintiff No.1 and also defendant No.1 has performed the marriage of plaintiff No.2 and therefore, sought for dismissal of the suit. 3.2. On the basis of the pleadings of the parties, the Trial Court framed the issues for its consideration. In order to prove their case, plaintiff No.1 has examined herself as PW1 and produced 34 documents and same were marked as Ex.P1 to Ex.P34. The defendant No.1 was examined as DW1 and got marked seven documents as Ex.D1 to Ex.D7. - 5 - NC: 2025:KHC-D:3174 RSA No. 100917 of 2017 3.3. The Trial Court, after considering the material on record, decreed the suit in part holding that the plaintiff No.2 is having half share in A Schedule property and 1/4th share in B schedule property. Feeling aggrieved by the same, the defendants have preferred R.A.No.164/2016 before the First Appellate Court and the appeal was resisted by the plaintiffs. The First Appellate Court, after considering the material on record, by its judgment and decree dated 31.07.2017 allowed the appeal and consequently dismissed the suit filed by the plaintiffs. Feeling aggrieved by the same, the plaintiffs have preferred this appeal. 4. This Court vide order dated 26.06.2019 framed the following substantial question of law: “Whether the first appellate Court is justified in allowing the application filed under Order XLI Rule 27 of the Code of Civil Procedure, 1908 by the appellants and proceeding to pronounce the Judgment on the basis of the documents produced without complying provisions of Order XLI Rule 27 of the Code of Civil Procedure, 1908 without giving an opportunity to the parties to prove or disprove the documents produced by way of additional evidence in view of the - 6 - NC: 2025:KHC-D:3174 RSA No. 100917 of 2017 Judgment in the case of Uttaradi Mutt v. Raghavendra Swamy Mutt reported in 2019 AIAR (Civil) 66?” 5. This Court, upon hearing the parties, on 13.02.2025 formulated the following substantial questions of law for consideration of this appeal. i) Whether both the Courts below were justified in denying the share to the plaintiff No.1? ii) Whether the judgment and decree passed by the First Appellate Court requires reconsideration? 6. I have heard Sri. H. M. Dharigond learned counsel appearing for the appellants and Sri. H.R.Gundappa learned counsel appearing for respondents No.1 to 5. 7. Learned counsel appearing for the appellants submitted that the schedule properties are belonging to the father of the defendant No.1 and on his demise the same were allotted to the share of defendant No.1 through partition in the family and therefore, the plaintiffs are entitled for share in the properties and the same was not considered by both the Courts below. Accordingly, sought for interference of this Court. - 7 - NC: 2025:KHC-D:3174 RSA No. 100917 of 2017 8. Per contra, learned counsel appearing for the respondents No.1 to 5 submitted that since the property is self- acquired property of Mallayya (father of defendant No.1) and therefore, Section 8 of the Hindu Succession Act is applicable to the case and therefore, sought for dismissal of the appeal. 9. In the light of the submission made by the learned counsel appearing for the parties and in order to understand the relationship between the parties, the genealogical tree of the parties is extracted, which reads as below: Mallayya (died) Sangawwa Gangayya Shadaksharayya Shekayya (Def.No.6) (Def.No.1) Mahadevi (1st wife) Parvatewwa (2nd wife) Plaintiff No.1 Defendant No.2 Iramma @ Laxmi (Daughter) Aishwarya Ratna Deepa (Def.No.3) (Def.No.4) (Def.No.5) 10. Perusal of the genealogy tree would indicate that the original propositus-Mallayya had four children including defendant No.1 and they are Sangawwa, Gangayya, - 8 - NC: 2025:KHC-D:3174 RSA No. 100917 of 2017 Shadaksharayya (defendant No.1) and Shekayya. The plaintiff No.1 is the wife of defendant No.1 and plaintiff No.2 is the daughter of defendant No.1 and plaintiff No.1. On careful examination of the finding recorded by the Trial Court would indicate that the suit schedule properties are belonged to Mallayya and on his demise, defendant No.1 succeeded to the same by partition. In that view of the matter, since the plaintiff No.1 is the wife of defendant No.1 and plaintiff No.2 is the daughter of defendant No.1, both the plaintiffs are entitled to 1/3rd share each in the properties devolved to the share of the Shadaksharayya (defendant No.1). In that view of the matter, the Trial Court has committed an error in decreeing the suit in part insofar as plaintiff No.2 is concerned and in rejecting the claim made by the plaintiff No.1 is concerned. In that view of the matter, I am of the view that both the Courts below have committed an error in allotting shares to the parties. Accordingly, the appeal deserves to be allowed. The substantial question of law favours the plaintiffs. In the result, I pass the following: - 9 - NC: 2025:KHC-D:3174 RSA No. 100917 of 2017 * Nos.1 and 2 * 1 ORDER i) The appeal is allowed. ii) The judgment and decree dated 31.07.2017 in R.A.No.167/2016 passed by the IV Additional District and Sessions Judge, Dharwad is hereby set aside and the judgment and decree dated 04.06.2016 in O.S.No.207/2013 passed by the III Additional Senior Civil Judge, Hubballi is hereby partly decreed holding that the plaintiff No.1 and defendant No.2 and 3 are entitled for 1/3rd share each in the schedule properties. iii) 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:GSM List No.: 1 Sl No.: 30 * Corrected vide court order dated 26.03.2025 Sd/- (ESIJ)