- 1 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH 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. 100575 OF 2019 (DEC/INJ) C/W REGULAR FIRST APPEAL NO. 100194 OF 2019 IN RFA NO. 100575/2019 BETWEEN: 1. SRI. ULHAS S/O. MARUTIRAO KAKATKAR AGED ABOUT 50 YEARS, OCC. BUSINESS PLOT NO.3, NEAR DAIVADNYA MANGAL KARIYALAYA, HULBATTE COLONY, SHASTRI NAGAR, SHAHAPUR, BELAGAVI-590013. 2. M/S. HIND ENGINEERING WORK 372, P.B. ROAD, BELAGAVI-590002, REPRESENTED BY ITS PARTNER SRI. ULLHAS S/O MARUTIRAO KAKATKAR APPELLANT NO.1 …APPELLANTS (BY SRI. MRUTUYUNJAY TATA BANGI, ADVOCATE) MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA Date: 2025.03.22 11:26:23 +0530 - 2 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 AND: 1 . SRI. MAHADEVRAO NAGESHRAO BHOSALE AGED ABOUT 69 YEARS, OCC. BUSINESS, 2 . SRI. SAMBHAJIRAO NAGESHRAO BHOSALE AGED ABOUT 66 YEARS, OCC. BUSINESS BOTH ARE R/AT: 162,CROSS NO.3 MAHADEWAR ROAD, BELAGAVI-590008. SRI. SHANKARRAO NINGOJIRAO KAKATKAR SINCE DECEASED BY LRS. SMT. KRISHNABAI W/O SHANKARRAO KAKATKAR SINCE DECEASED BY L.R.S 3. SMT. MANGAL W/O. KEDARI SALGUDE AGED ABOUT 53 YEARS OCC. HOUSEHOLD R/AT: NO.120, TEMPLE ROAD, HINDWADI, BELAGAVI-590003. 4. SMT. KALPANA W/O SHRIDHAR PAWALE AGED ABOUT 53 YEARS, OCC. HOUSEHOLD, R/AT: 1ST CROSS, BEHIND SHIVAJI GARDEN, S.P.M. ROAD, SHAHAPUR, BELAGAVI-590005. 5. SRI. SANJAY S/O SHANKARAO KAKATKAR AGED ABOUT 47 YEARS, OCC. SERVICE, R/AT: NAZAR CAMP, YALLUR ROAD, VADAGAON, BELAGAVI-590003. 6. THE STATE BANK OF INDIA MAIN BRANCH, KAHAPUR ROAD, BELAGAVI 590001, REPRESENTED BY ITS MANAGER. 7. THE JIJAMATA CO-OPERATIVE CREDIT BANK DESHAPNDE GALLI, - 3 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 BELAGAVI-590008 REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER …RESPONDENTS (BY SRI. GIRISH A. YADAWAD, ADVOCATE FOR R1 AND R2; NOTICE TO R3, R4 AND R5 ARE SERVED; VIDE ORDER DATED 24.02.2020 SRI. B. MUHAMMED ALI, ADVOCATE FOR R6; SRI. RAMACHANDRA A. MALI, ADVOCATE FOR R7) THIS RFA IS FILED UNDER SECTION 96 OF THE CPC., PRAYING TO, SET ASIDE THE JUDGMENT AND DECREE DATED 20.12.2018 IN O.S.NO.136/2009, PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM BELAGAVI AND DISMISS THE O.S.NO.136/2009, AS AGAINST THE APPELLANT AND ETC., IN RFA NO. 100194/2019 BETWEEN: MRS. KALPANA W/O SHRIDHAR PAWALE AGE: 57 YEARS, OCC: HOUSEHOLD, R/O: 1ST CROSS, BEHIND SHIVAJI GARDEN, S.P.M. ROAD, SHAHAPUR, BELAGAVI, TQ. AND DIST: BELAGAVI, PIN CODE: 590003. …APPELLANT (BY SRI. D. RAVIKUMAR GOKAKAKAR AND SMT. CHETANA S. BIRAJ, ADVOCATES) AND: 1 . SRI. MAHADEVRAO NAGESHRAO BHOSALE AGE: 68 YEARS, OCC: BUSINESS, R/O: H.NO.162, CROSS NO.3, MAHADWAR ROAD, BELAGAVI, TQ. AND DIST: BELAGAVI-590001. - 4 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 2 . SRI. SAMBHAJIRAO NAGESHRAO BHOSALE AGE: 64 YEARS, OCC: BUSINESS, R/O: H.NO.162, CROSS NO.3, MAHADWAR ROAD, BELAGAVI, TQ. AND DIST: BELAGAVI-590001. 3. SRI. SHANKARRAO NINGOJIRAO KAKATKAR SINCE DECEASED BY HER LRS, SMT. KRISHNABAI, W/O. SHANKARRAO KAKATRAO, SINCE DECEASED BY HER LRS MRS. MANGAL W/O KEDARI SALGUDE, AGE: 59 YEARS, OCC: HOUSEHOLD, R/O: 1ST CROSS, BEHIND SHIVAJI GARDEN, S.P.M. ROAD, SHAHAPUR, BELAGAVI, TQ. AND DIST: BELAGAVI-590001. 4 . SRI. SANJAY SHANKARRAO KAKATKAR AGE: 53 YEARS, OCC: SERVICE, R/O: NAZAR CAMP, YAALUR ROAD, VADGAON, BELGAAVI, TQ. AND DIST: BELAGAVI-59000. 5 . STATE BANK OF INDIA MAIN BRANCH, KHANAPUR ROAD, BELAGAVI, TQ. AND DIST: BELAGAVI-59000. 6 . JIJAMATA CO-OPERATIVE CREDIT BANK DESHPANDE GALLI, BELAGAVI, TQ. AND DIST: BELAGAVI-590001. 7. SRI. ULHAS S/O MARUTIRAO KAKTKAR AGE: 49 YEARS, OCC: BUISNESS, R/O: PLOT NO.3, NEAR DAIVADNYA MANGAL KARYALAYA, HULBATTE COLONY, SHASTRI NAGAR, SHAHAPUR, BELAGAVI, TQ AND DIST: BELAGAVI-590000. - 5 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 8. M/S. HIND ENGINEERING WORK 372, P.B. ROAD, BELAGAVI, REPERSENTED BY ITS PARTNERS, 1. SRI. PARASHRAM NINGOJIRAO KAKATKAR, AGE: MAJOR, OCC: BUSINESS. 2. SRI. ULHAS S/O MARUTIRAO KAKTKAR, AGE: 49 YEARS, OCC: BUSINESS. …RESPONDENTS (BY SRI. GIRISH A. YADAWAD AND SRI. V.P. KULKARNI, ADVOCATE FOR R1 AND R2; SRI. MRUTYUNJAY TATA BANGI, ADVOCATE FOR R3, R7 AND R8; NOTICE TO R4 IS SERVED; SRI. K.L. PATIL, ADVOCATE FOR R5; NOTICE TO R6 IS SERVED) THIS RFA IS FILED UNDER SECTION 96 OF THE CPC., PRAYING TO, SET ASIDE THE JUDGMENT AND DECREE DATED 20.12.2018 IN O.S.NO.136/2009, PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM BELAGAVI AND DISMISS THE O.S.NO.136/2009, AS AGAINST THE APPELLANT AND ETC., THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 10.02.2025, THIS DAY, UMESH M ADIGA, J., DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 6 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 CAV JUDGMENT (PER: HON'BLE MR JUSTICE UMESH M ADIGA) These appeals are filed by the Defendants challenging the judgment and decree dated 20.12.2018, passed in O.S.No.136/2009, by the learned Prl. Senior Civil Judge and CJM., Belagavi. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. The plaintiffs filed the suit against for the relief of declaration and perpetual injunction. The said suit was decreed by the trial Court and the same is challenged by defendant No.1(c) in RFA.No.100194/2019 and defendant Nos. 4 and 5 in RFA.No.100575/2019. 4. Brief facts of the case of both the parties before the trial Court are as under: 5. It is a case of plaintiff that one Miss.Shanta Nageshrao Bhosale was sister of the plaintiffs. During her lifetime, initially she was working as Headmistress in - 7 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 Maratha Mandal's High School at Belagavi. Later on she was promoted and appointed as Principal of Maratha Mandal Composite Pre-University College, Belagavi. From the salary income earned by her, she purchased suit ‘A’ schedule property, invested in fixed deposit and PPF Account etc., She was also getting pension. She had invested part of her earnings in M/s. Hind Engineering Work. The said particulars are mentioned in plaint ‘B’ schedule property. 6. Miss. Shanta Nageshrao Bhosale was not married with the defendant No.1 and defendant No.1 was not at all related to her in any way. The said Shanta was earning salary of Rs.9,110/- per month and she alone was residing in a flat situated at Angol road at Belagavi. 7. It is further contention of the plaintiffs that the said Shanta died at Belagavi on 30.06.2003, leaving behind the plaintiffs as her legal heirs. Except the plaintiffs, there are no other legal heirs to said Shanta. After the death of Shanta Plaintiffs obtained her death - 8 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 certificate and at that time they came to know that her name was mentioned as ‘Shanta Shankarao Kakatkar’ in the death extract. On further inquiry plaintiffs came to know that deceased defendant No.1 after death of Shanta filed an application in the City Corporation of Belagavi as well as Thasildar Office and got mutated revenue records of plaint ‘A’ schedule in his name. He also applied to the banks and withdrew the amount deposited in the name of deceased Shanta. The plaintiffs approached defendant No.1 and requested to return the said amount. Defendant No.1 refused to refund the same. Hence, plaintiffs filed a suit seeking for the relief as prayed in the suit. 8. Defendant No.1 in his written statement contended that Shanta was serving in Maratha Mandal High School as a Headmistress. She was a member of the Maratha Mandal. Initially both were friends; thereafter they had personal relationship and both of them were living together as a husband and wife. They had close intimacy. Defendant No.1 out of love and affection on - 9 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 Shanta he purchased a flat in an Apartment at Belagavi for accommodating Shanta. Till her death, she was residing in the said house along with the defendant No.1. The said property was purchased in the name of Shanta and he funded for purchase of the said property. He also contended the he purchased other plaint ‘A’ schedule properties from his funds in the name of Shanta. 9. Defendant No.1 further contended that the earnings of Shanta was very meager. Earlier she was teacher and at the end of her service, she was a Principal. Her income was not sufficient to maintain herself. Therefore all the movable and immovable properties mentioned in plaint A and B schedule properties are purchased from the funds contributed by defendant No.1. He has every right to receive the said amount. 10. Defendant No.1 further contended that relatives of Shanta never taken care of her. All the while defendant No.1 alone use to take care of her. Even he took her for foreign trip at his expenses. He also - 10 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 purchased properties in the name of Shanta. After both of them started residing together as husband and wife, Shanta changed her name as ‘Shanta Shakarao Kakatkar’. All the deposits were made in the said name. Properties were purchased by Shanta in the said name. Plaintiffs have no right over the same properties. This suit is filed only to harass the defendants. With these reasons prayed to dismiss the suit. 11. During the pendency of the suit, defendant No.1 was dead and his legal heirs i.e. his wife and children were brought on the record as defendant Nos.1 (A to C). They have once again filed written statement repeating the very same contention as stated in the written statement of defendant No.1. Other defendants did not file written statement. 12. The trial Court on the basis of rival contentions of the parties, framed the following issues and additional issues: - 11 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 ISSUES 1. Whether the plaintiffs prove that defendant no.1 no way concerned with the plaintiffs family and he never married the plaintiffs sister Shanta? 2. Whether the suit is not properly valued for the purpose of court fee ? 3. Whether the plaintiffs prove that Shanta opened S.B. A/c with SBI Main Branch, Belgaum and having GPF Account in the said bank and she had F.D. in the said bank and F.D. in Gijamata Co-op Credit bank Belgaum ? 4. Whether the plaintiffs prove that 1st defendant played mischief and got introduced his name in the sale deed and got transferred the amount in collusion with the defendant no.2 to 4 as contended in para no.4 of the plaint? 5. Whether the description of the suit property is not correct? 6. Whether the 1st defendant prove that he and deceased Shanta lived together for 25 years as husband and wife and she voluntarily disclosed the name of 1st defendant in her pension records as nominee? 7. Whether the 1st defendant proves that Smt. Shanta raised loan and gave it to 1st defendant and 1st defendant clear the said loan with interest ? - 12 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 8. Whether the 1st defendant proves that plaintiffs are estopped from denying the relationship of their sister with 1st defendant as contended in para no.17 of the written statement? 9. Whether the 1st defendant proves that open site at Bhagyanagar and an apartment at Angol purchased in the name of Smt.Shanta from the income of 1st defendant ? 10. Whether the suit in the present form is not maintainable as contended in para no.24 of written statement? 11. Whether the 1st defendant proves that he is the nearest surviving heir of Smt. Shanta and he is entitled to succeed the properties of the deceased? 12. Whether the suit is bad for non-joinder of necessary parties as contended in para no.30 of written statement? 13. Whether 1st defendant is entitled for exemplarary costs of Rs.25,000/-? 14. Whether the plaintiffs are entitled for the relief of declaration and perpetual injunction as prayed ? 15. What decree or order? - 13 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 ADDITIONAL ISSUES 1. Whether the defendant No.1(D) proves that, the deceased Shantabai Nageshrao Bhosale was legally wedded wife of deceased Defendant No.1 ? 2. Whether the defendant No.1(D) proves that, the deceased Shantabal was not having any right over the fixed deposit amount kept in the bank as contended in para 9 of written statement? 3. Whether the defendant No.1(D) proves that, the deceased Shantabai never treated the properties purchased as her independent acquisition and always treated as properties of defendant No.1 purchased by him through his own money and she was benami purchaser as contended in para 10 of the written statement? 13. To substantiate their case, plaintiffs examined plaintiff No.1 as PW.1 and one witness as PW.2 and got marked 20 documents as Ex.Ps.1 to 20. The defendant No.1 (c) and (d) were examined as DW.1 and 6 and they also examined DWs.2 to 5, and 28 documents were marked as EX.D.1 to D.28. 14. The trial Court after hearing both the parties and appreciating pleading and evidence available - 14 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 on record, answered issue Nos. 1, 3, 4 and 14 in the affirmative, issue Nos.5 to 12 and additional issue Nos.1 to 3 in the negative and decreed the suit by impugned judgment. 15. Heard the learned counsels appearing for the appellants and the respondents. 16. Learned counsel for the appellant in RFA 100194/2019 submits that deceased defendant No.1 had contended before the trial Court that deceased Shanta was his legally wedded wife, but both of them were living as husband and wife under the same roof from the year 1979 till her death. He looked after her; purchased the properties in her name for her benefit. He invested the money in her name and he provided her all luxurious things including foreign trips. None of the plaintiffs helped Shanta at that time and even they did not like her. Therefore helplessly she was residing separately in a flat along with deceased defendant No.1. He fairly conceded - 15 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 that Shanta was not legally wedded wife of defendant No.1. 17. Learned counsel for the appellant further submits that plaintiffs are claiming property belonging to Shanta Nagesh Bhosle. Defendant No.1 did not claim any property of ‘Shanta Nagesh Bhosle’ and on the contrary, he was claiming property held in the name of “Shanta Shankarao Kakatkar”. All the suit properties both movable and immovable are standing in the name of Shanta Shankarao Kakatkar. Plaintiffs have no right over the said properties because both are different personalities and hence the claim made by the plaintiffs is not tenable. Plaintiffs have no right to claim the said property therefore prayed to dismiss the suit of the plaintiffs. He further submits that the plaintiffs have not sought for possession of the property. They sought for the relief of only declaration. According to the provisions of Specific Relief Act, if consequential relief is not sought along with the relief of declaration, then such relief of declaration cannot - 16 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 be maintainable. In view of the said reasons, the relief sought by plaintiffs is not tenable. The trial Judge has not considered these facts and erroneously decreed the suit. Therefore, prayed to set aside the decree and judgment. 18. Learned counsel for the appellants in RFA No.100575/2019 has vehemently contended that Shanta Shankarrao Kakatkar i.e. deceased defendant No.1 are husband and wife. They lived as such from year 1979 till her death in the year 2003 under the same roof. Undisputedly, Shanta was unmarried prior to her relationship with the deceased defendant No. 1. Looking to conduct of the parties, it shall be believed that Shanta and defendant No.1 were wife and husband. Hence, defendant No.1 being the husband and legal heir is entitled to succeed to the property held by Shanta. 19. He further contends that investment and deposit made by her in the firm were paid to the appellants, including fixed deposit amount kept in the firm. The audited balance sheet of the firm discloses the said - 17 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 fact and that was not considered by the Trial Court. The Trial Court has also not considered that deceased defendant No.1 was nearest legal relative and entitled to claim the movable and immovable property held by her. Instead of considering defendant no.1 as the nearest legal heir, who was her husband, taken the plaintiffs as legal heirs, who were class II heirs of Shanta. The trial Court has not appreciated the pleading and evidence of both the parties properly and came to a wrong conclusion. Therefore prayed to allow the appeal by setting aside the impugned judgment. 20. Learned counsel for respondents/plaintiffs submits that merely a man and woman reside together under the same roof cannot be considered that they were legally wedded wife and husband. In the written statement of deceased defendant No.1, he has never stated that Shanta was his legally wedded wife. The learned counsel appearing for legal heirs of the deceased defendant No.1 has fairly accepted the said fact. Hence, the defendant - 18 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 1(a to c) would succeed to the properties held by Shanta do not arise. 21. Learned counsel for respondent Nos.1 and 2 further submits that appellant in RFA.No.100194/2019 submitted very strange arguments stating that Shanta Nageshrao Bhosale and Shanta Shankar Kakatkar are two different personalities. The said argument was advanced just to confuse the Court. Nowhere in the pleading or in evidence identity of Shanta was disputed. For the first time, during the arguments, the said contention is raised. It is in consistent case of plaintiffs that deceased was Shanta Nageshrao Bhosale and not Shanta Shankarrao Kakatkar. The deceased defendant No.1 hatched a plan to gulp all the income of Shanta and also the properties both movable and immovable earned by her. Without knowledge of Shanta made her name as Shanta Shankar Kakatkar indicating to the public that she was his wife. Merely change of name will not change the identity of a - 19 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 person. The said arguments of the appellant do not hold any water. Therefore, prayed to reject it. 22. There is no dispute that late Shanta was owner of ‘A’ and ‘B’ schedule properties. Appellants in RFA.No.100575/2019 though contended that all the amount deposited by Shanta in the firm were repaid and her investment in the firm were returned to her, during her lifetime. To prove the same, no records were produced by the defendant No.2. Therefore the said contentions are not tenable. With these reasons prayed to dismiss both appeals 23. From the rival contention of the parties, the following points emerge for our determination: i) Whether the learned trial Judge erred in holding that plaintiff Nos.1 and 2 are legal heirs of Shanta as per provision of Hindu Succession Act? ii) Whether the learned trial Judge erred in declaring plaintiff Nos.1 and 2 to succeed to the properties of Shanta? - 20 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 iii) Whether the findings of learned trial Judge is perverse, arbitrary and illegal and interference by this Court is required? iv) What order ? 24. Our answers to the point Nos.1 to 3 are in the negative for the following reasons: 25. It is not in serious dispute that plaintiffs are brothers of Shanta Nageshrao Bhosale or Shanta Shankarao Kakatkar. 26. In the written statement defendant No. 1 has not made out a case that he was married to Shanta or she was his legally wedded wife. During course of the arguments, learned counsel for the appellant in RFA No.100194/2019 considered that Shanta was not legally wedded wife of deceased defendant No.1. However, both of them were residing together having physical relationship from the year 1979 till her death in the year 2003. It is also pertinent to note that deceased defendant No.1 married to defendant No.1(A) and from the said - 21 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 wedlock he has children that is, defendant Nos.1 (A) to 1(D). During the cross-examination of DW.1, she has stated that name of legally wedded wife of Shankarrao Kakatkar is Krishnabai (Defendant No.1(a)). Their marriage might have taken place during the year 1951- 52. After the marriage, defendant Nos.1 and 1(A) were residing at Azad Galli, Belagavi. She has never stated that defendant No.1 her father married Shanta. These facts clearly show that deceased defendant No.1 has not married Shanta. Under these circumstances, if there was any physical relationship between Shanta and defendant No.1, then it was nothing but an illicit relationship. 27. Section 15 of the Hindu Succession Act reads as under: 15. General rules of succession in the case of female Hindus.-(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,- (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; - 22 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub- section (1), (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre- deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub- section (1) in the order specified therein, but upon the heirs of the husband. 28. Nowhere in the Hindu Succession Act says that a man who lives with a woman as a husband without - 23 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 marriage is entitled for succession to the property belonging to the said lady, after her death. Hence, deceased defendant No.1 or his legal heirs are not entitled to succeed to the property held by Shanta. The trial Court has considered pleading and evidence in this regard and rightly held that defendant No.1 or his legal heirs are not entitled for share in the property of Shanta. 29. Defendant No.1 has also contended that he paid entire sale consideration for purchase of immovable properties mentioned in the plaint ‘A’ Schedule. He has also contended that he has invested his money in the name of Shanta in the commercial banks as well as in the partnership firm i.e., defendant No.5 M/s. Hind Engineering Work. Therefore, it was a Benami transaction of defendant No.1 and hence he is entitled for those properties. The said contentions of the defendant No.1 is not legally acceptable. The suit was filed during the year 2009. As on that date, the Benami Transactions (Prohibition Act, 1988) Act (for short the Act) was - 24 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 prevailing. According to Section 4 of the Act such a defense in a civil suit shall not be considered for granting the relief. 30. Section 4 of the Act reads as under: Prohibition of the right to recover property held benami.-(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply,- (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of - 25 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 another person for whom he is a trustee or towards whom he stands in such capacity. 31. When the defendant No.1 himself contends that it was a benami transaction such defense cannot be considered. 32. After coming into force of Prohibition of Property Transactions Act, 1988 (Act number 35 of 1988). There is a slight modification in Section 4 of the old Act. In the Amended Act a party is not permitted to take such contention. Therefore the said defense is also not tenable. 33. In OS No.136/2009 notice was duly served on defendant No. 4, who is the appellate in RFA No.100575/2019. In spite of service of notice, he did not appear before the Court and remained ex-parte. Defendant No.4 has not participated at any stage of proceedings. Therefore, his contention that he was not heard by the trial Court is not tenable. 34. Evidence of DW.1 to 6 do not help to prove the contention of defendants. If defendant No.1 was - 26 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 able to prove that he legally married Shanta Nageshrao Bhosale or Shanta Shankar Kakatkar, in that event their evidence would have helped to prove the contentions of the defendant to succeed to the properties belonging to Shanta. But when the marriage itself is not pleaded and proved and it was just a live-in relationship between them. Hence, defendant No.1 or his legal heirs have no right of inheritance to the properties of Shanta. 35. At the cost of reputation as already stated above that defendant Nos. 4 and 5 were not able to establish that whatever amount given by Shanta as a deposit or as a capital to the firm, were refunded to her prior to her death by leading cogent evidence. Even they did not appear before the trial Court, filed the written statement or produced any documents to prove the same. They woke up against them and filed the appeal challenging the decree. The said contention of the defendants No.4 and 5 is not tenable. - 27 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 36. The trial Judge in detail has considered the contentions of both the parties and rightly held that plaintiff Nos.1 and 2 are the nearest legal heirs of Shanta and after her death, the plaintiffs are entitled to succeed to the properties held by Shanta, therefore directed the defendants to refund the amount belonging to Shanta collected by them. 37. Learned counsel for the appellant in RFA.No.100194/2019 relied on the following judgments. i) (2014) 14 SCC 502, Venkatraja and others V/s. Vidyane Doureradjaperumal (dead) through legal representatives and others In the said case it is held that when the suit is for the relief of declaration without consequential relief, then the suit is not maintainable. Learned counsel for the appellant submits that in the present plaintiffs have sought for the relief of declaration but they have not sought for the consequential relief and hence suit is not maintainable. The said contention is not sustainable. Plaintiffs have - 28 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 sought for the relief of declaration as well as possession and injunction. Therefore law laid down in the above said judgment is not applicable to the facts of the present case. ii) Civil Appeal No.3495/2001, Marabasappa (Dead) By Lrs. and Others V/s. Ningappa and others. 38. Appellant relied on the above said judgment to show that if the property is purchased in the name of a member of the family, out of the joint family nucleus, then said property shall be considered as a joint family property. Similarly, in this case, deceased Shankar Kakatkar purchased the property in the name of deceased Shanta, therefore those properties are belonging to Shankar. Facts in the above case are totally different from the facts of this case. It is nobody’s case that suit properties are joint family properties or Shanta purchased properties from joint family nucleus. Hence, not relevant to facts of this case. In this case admittedly the deceased defendant No.1 was not legally married Shanta. Shanta - 29 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 had her own source of income. Even if we presume that the deceased defendant No.1 contributed funds for purchasing of the properties. Then it would amount to benami transaction. As already stated above such a defense and such a defense cannot be considered by the court. Therefore, law laid down in the said judgment is not applicable to facts of this case. 39. After re-appreciating the oral land documentary evidence, we do not find any error, illegality or arbitrariness in the findings of the learned the trial Judge. The learned trial Judge has properly appreciated pleading and documentary evidence by assigning proper reasons, rightly held that plaintiffs are entitled to succeed to the properties left over by Shanta Nagesh Bhosle/Shanta Shankar Kakatkar. Hence, it does not call for interference. 40. In view of the above discussions, we answer the point Nos.1 to 3 in the negative and we proceed to pass the following: - 30 - NC: 2025:KHC-D:4645-DB RFA No. 100575 of 2019 C/W RFA No. 100194 of 2019 ORDER i) The appeals are dismissed. ii) The judgment and decree dated 20.12.2018, passed in O.S.No.136/2009, by the learned Prl. Senior Civil Judge and CJM., Belagavi is confirmed. iii) The office is directed to send back the trial Court records along with copy of this judgment. iv) The office is directed to draw decree accordingly. In view of disposal of the appeals, pending IAs if any do not survive for consideration. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE VB/List No.: 1 Sl No.: 31