- 1 - NC: 2025:KHC-D:2243-DB RFA No. 100572 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 5TH 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.100572 OF 2019 (PAR/POS) BETWEEN: SHRI. KENCHAPPA LAXMAN SAYANNAVAR AGE: 81 YEARS, OCC: AGRICULTURE, R/O: KEMMANAKOL, TQ: GOKAK, REP. BY POWER OF AUTORNY HOLDER, ADIVEPPA KENCHAPPA SAYANNAVAR, AGE: 45 YEARS, OCC: AGRICULTURE, R/O: KEMMANAKOL, TQ: GOKAK-591307. …APPELLANT (BY SRI. H.M. DHARIGOND, ADV) AND: 1. SHRI. MAHADEV LAXMAN SAYANNAVAR AGE: 61 YEARS, OCC: AGRICULTURE, R/O: KEMMANAKOL, TQ: GOKAK-591307. 2. SHRI. SHIVARJ LAXMAN SAYANNAVAR AGE: 55 YEARS, Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:2243-DB RFA No. 100572 of 2019 OCC: AGRICULTURE, R/O: KEMMANAKOL, TQ: GOKAK-591307. 3. SHRI. VITTAL LAXMAN SAYANNAVAR AGE: 53 YEARS, OCC: AGRICULTURE, R/O: KEMMANAKOL, TQ: GOKAK-591307. 4. SHRI. NINGAPPA LAXMAN SAYANNAVAR AGE: 51 YEARS, OCC: AGRICULTURE, R/O: KEMMANAKOL, TQ: GOKAK-591307. …RESPONDENTS (BY SRI. SANTOSH S. HATTIKATAGI, ADV FOR R1 TO R4) THIS RFA IS FILED UNDER SEC. 96 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DTD:06.09.2019 PASSED IN O.S.NO.226/2018 ON THE FILE OF THE CIVIL JUDGE, PRINCIPAL SENIOR CIVIL JUDGE, GOKAK, DECREEING THE SUIT FILED FOR 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 ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 3 - NC: 2025:KHC-D:2243-DB RFA No. 100572 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellant challenging the judgment and preliminary decree dated 06.09.2019, passed in O.S.No.226/2018 by the learned Principal Senior Civil Judge, Gokak. 2. For convenience, the parties are referred to, based on their ranking before the trial court. The appellant was plaintiff, and the respondents were defendant Nos.1 to 4. 3. Brief facts, leading rise to the filing of this regular first appeal are as follows: The plaintiff filed the suit against the defendants seeking the relief of declaration of title and injunction. It is the case of the plaintiff that the suit schedule properties are the ancestral joint family properties of the plaintiff. Smt.Sattewwa was the first wife of the deceased propositus Laxman. The plaintiff was born out of the wedlock of Smt.Sattewwa and the propositus Laxman. - 4 - NC: 2025:KHC-D:2243-DB RFA No. 100572 of 2019 During the lifetime of Sattewwa, the propositus married the second wife, Laxmawwa. The defendants are the children of Laxmawwa and the propositus Laxman. Sattewwa and Laxman are dead. After the demise of the propositus Laxman in 1989, the plaintiff, being the legal heir, succeeded to the suit schedule properties as the absolute owner. As such, the plaintiff is in possession of the suit schedule properties, as the absolute owner, despite of the entries being in the name of the defendants and the plaintiff in the record of rights. The plaintiff requested the defendants to go for amicable partition by metes and bounds, but the said request was rejected by the defendants. Hence, a cause of action arose for the plaintiff to file a suit for declaration of title and permanent injunction. 4. The defendants filed a written statement, denying the genealogy and the allegations made in the plaint. It is contended that, the initially, the propositus had married Laxmavva, and through her, defendants were - 5 - NC: 2025:KHC-D:2243-DB RFA No. 100572 of 2019 born. Behind the back of Laxmavva, the propositus married Sattewwa during the subsistence of his marriage with Laxmavva. Out of their wedlock, the plaintiff was born. The suit schedule properties are the joint family properties of the plaintiff and the defendants. The defendants have a 4/5th share in the suit schedule properties, and the plaintiff has a 1/5th share, as he is the son of his second wife. No partition effected between the plaintiff and the defendants. Hence, they pray to effect the partition and separate possession by metes and bounds in the suit schedule properties, and the defendants are ready to pay the court fee. Accordingly, they have submitted their written statement. 5. The trial court, based on the pleadings of the parties, framed the following issues; 1) Whether plaintiff proves that, he is absolute owner in possession of the suit properties? 2) Whether he further proves that, defendants are interfering with his possession? - 6 - NC: 2025:KHC-D:2243-DB RFA No. 100572 of 2019 3) Whether plaintiff is entitled for half share in suit properties as prayed? 4) Whether plaintiff is entitled for the relief of declaration as prayed? 5) What order or decree? 6. To prove his case, the plaintiff examined the Special Power of Attorney holder as P.W.1 and marked 7 documents as Exs.P1 to P7. On the other hand, defendant No.4 was examined as D.W.1 and marked one document as Ex.D1. The trial court, after recording the evidence, hearing on both the sides and on assessment of the oral and documentary evidence, answered issue Nos.1 to 4 in the negative and issue No.5, as per the final order. The suit of the plaintiff was decreed. It is declared that the plaintiff, and the defendant Nos.1 to 4 are entitled to 1/5th share each in suit properties by metes and bounds. The relief of ownership and permanent injunction sought by the plaintiff against the defendants is rejected. The - 7 - NC: 2025:KHC-D:2243-DB RFA No. 100572 of 2019 plaintiff, aggrieved by the impugned judgment, filed this Regular First Appeal. 7. Heard the learned counsel for the plaintiff and the learned counsel for the defendants. 8. Learned counsel for the plaintiff submits that Sattewwa was the legally wedded wife of the original propositus Laxman, and the suit schedule properties are the ancestral and joint family properties of the plaintiff. The defendants are the children born out of the second marriage of the original propositus with Laxmawwa. Therefore, they cannot be treated as coparceners, and they are not entitled to any share in the ancestral properties. He submits that, the trial court committed an error in granting 1/5th share to the parties to the suit. Hence, on these grounds, he prays to allow the appeal. 9. Per contra, learned counsel for the defendants supports the impugned judgment and prays to dismiss the appeal. - 8 - NC: 2025:KHC-D:2243-DB RFA No. 100572 of 2019 10. Heard, perused the records and considered the submissions of the learned counsel for the parties. The points that would arise for our consideration are; 1) Whether the plaintiff proves that the suit schedule properties are the ancestral and joint family properties of the plaintiff? 2) Whether the plaintiff proves that the judgment and decree passed by the trial court is perverse and arbitrary? 3) What order or decree? Point No.1. 11. The plaintiff to prove his case, examined the Special Power of Attorney holder as P.W.1. He reiterated the plaint averments in his examination-in-chief. To prove that the suit schedule properties are the ancestral joint family properties of the plaintiff, the documents were produced. Ex.P1 is the Special Power of Attorney, wherein the plaintiff authorized P.W.1 to depose on his behalf. Exs.P2 to P7 are the record of rights that disclose the plaintiff and the defendants’ names as joint owners in joint - 9 - NC: 2025:KHC-D:2243-DB RFA No. 100572 of 2019 possession. Though the plaintiff has pleaded in the plaint that, the suit schedule properties are the ancestral joint family properties, he has not produced any records to establish that the suit schedule properties were standing in the name of the propositus Laxman or his ancestors. The plaintiff has failed to prove that the suit schedule properties are the ancestral joint family properties of the plaintiff. Plaintiff admits that the defendants are the children of Laxman. Admittedly, both the plaintiff and the defendants claim that these properties are owned and possessed by Laxman. In the absence of evidence on record, and also we observed that the plaintiff has failed to prove that, the suit schedule properties are the ancestral and joint family properties, we hold that the suit schedule properties are owned and possessed by Laxman. As per Section 16(3) of the Hindu Succession Act, the children born out of a void marriage are entitled to a share in the parent’s estate. Admittedly, the trial court, considering the law laid down by the Full Bench of the Hon’ble Supreme Court in the case of Revanasiddappa and Another v. - 10 - NC: 2025:KHC-D:2243-DB RFA No. 100572 of 2019 Mallikarjun and Others in Civil Appeal No.2844/2011, awarded an equal share to the plaintiff, as well as defendant Nos.1 to 4. The plaintiff contends that his mother is the first wife, and defendant Nos.1 to 4 contend that, their mother is the first wife of the original propositus. Even without going into the said aspect, admittedly, the plaintiff and defendant Nos.1 to 4 are born to Laxman, and the suit schedule properties are the self- acquired properties of Laxman. As per Section 16(3) of the Hindu Succession Act, plaintiff and defendant Nos.1 to 4 are entitled to an equal share. The trial court was justified in recording its finding and has rightly granted equal share to the plaintiff and defendant Nos.1 to 4. In view of the above discussion, we answer point No.1 in the negative. Point No.2. 12. The trial court considering the entire material on record, has rightly passed the impugned judgment and preliminary decree. We do not find any ground to interfere with the impugned judgment and the preliminary decree - 11 - NC: 2025:KHC-D:2243-DB RFA No. 100572 of 2019 passed by the trial court. Accordingly, we answer point No.2 in the negative. Point No.3. 13. In view of the above discussion, we proceed to pass the following; ORDER The Regular First Appeal is hereby dismissed. The judgment and preliminary decree dated 06.09.2019 passed in O.S.No.226/2018, by the learned Principal Senior Civil Judge, Gokak, is hereby confirmed. No order as to the cost. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE MBS CT: BSB List No.: 1 Sl No.: 9