- 1 - HC-KAR NC: 2026:KHC-D:362 RSA No. 100822 of 2016 C/W RSA.CROB No. 100002 of 2020 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 13TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR SECOND APPEAL NO.100822 OF 2016 (PAR) C/W. RSA CROB NO.100002 OF 2020 (PAR) IN RSA NO.100822/2016: BETWEEN: YAMANAPPA S/O. DUNDAPPA MAKANI, AGE ABOUT 40 YEARS, OCC: AGRICULTURE, R/O. HIRE SHELLIKERI, TQ. AND DIST. BAGALKOT-587101. &APPELLANT (BY SRI VIJAYKUMAR B. HORATTI, ADVOCATE) AND: 1. DUSENGAPPA S/O. DUNDAPPA MAKANI, AGE: 21 YEARS, OCC: STUDENT, R/O. HIRE SHELLIKERI, TQ. AND DIST. BAGALKOT-587101. 2. SMT. SHANTAVVA W/O. BASAPPA LOKAPUR, AGE: 26 YEARS, OCC: HOUSEWIFE, R/O. VAJRAMATTI, TQ: MUDHOL, DIST: BAGALKOT-587101. 3. SMT. CHANDRAVVA W/O. DUNDAPPA MAKANI, (SINCE DECEASED BY HER LRS RESPONDENTS 1 & 2). &RESPONDENTS (BY SRI S. R. HEGDE AND Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2026:KHC-D:362 RSA No. 100822 of 2016 C/W RSA.CROB No. 100002 of 2020 SRI P. K. SANNINGAMMANAVAR, ADV. FOR R1 & R2; SRI Y. R. JOGI, ADV. FOR R1) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 R/W. ORDER XLII RULE 1 OF CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.11/2013 BY THE LEARNED 1 ADDL. SR. CIVIL JUDGE, BAGALKOT DATED 13.07.2016 DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE PASSED BY THE LEARNED PRL. CIVIL JUDGE AND J.M.F.C, BAGALKOT IN O.S.NO.198/2010 DATED 14.12.2012 IN THE INTEREST OF JUSTICE AND EQUITY. RSA CROB NO.100002 OF 2020: BETWEEN: SRI DUSENGAPPA D/O. DUNDAPPA MAKANI, AGE: 27 YEARS, OCC: AGRICULTURE, R/O. HIRE SHELLIKERI, TQ. & DIST: BAGALKOT-587204. &CROSS OBJECTOR (BY SRI S. R. HEGDE AND SRI P. K. SANNINGAMMANAVAR AND SRI Y. R. JOGI, ADVOCATES.) AND: 1. SRI YAMUNAPPA S/O. DUNDAPPA MAKANE, AGED ABOUT 45 YEARS, OCC: AGRICULTURE, R/O. HIRE SHELLIKERI, TQ. & DIST: BAGALKOT-587204. SMT. SHANTAVVA W/O. BASAPPA LOKAPUR, SINCE DECEASED BY LRS. 2. SHRI BASAPPA S/O. NINGAPPA LOKAPUR, AGE: 35 YEARS, OCC: AGRICULTURE, R/O. VAJRMATTI, TQ: MUDHOL, DIST: BAGALKOT-587313. - 3 - HC-KAR NC: 2026:KHC-D:362 RSA No. 100822 of 2016 C/W RSA.CROB No. 100002 of 2020 3. SRI SHIVAPPA S/O. BASAPPA LOKAPUR, AGE: 11 YEARS, OCC: STUDENT, R/O. VAJRMATTI, TQ: MUDHOL, DIST: BAGAKOT-587313. 4. SRI NAVEEN S/O. BASAPPA LOKAPUR, AGE: 11 YEARS, OCC: STUDENT, R/O. VAJRMATTI, TQ: MUDHOL, DIST: BAGAKOT-587313. 5. SRI VINAYAK S/O. BASAPPA LOKAPUR, AGE: 11 YEARS, OCC: STUDENT, R/O. VAJRMATTI, TQ: MUDHOL, DIST: BAGAKOT-587313. SINCE RESPONDENT 3 TO 5 ARE MINORS, THEY ARE R/BY. NATURAL FATHER RESPONDENT NO.2. &RESPONDENTS (BY SRI VIJAYKUMAR B. HORATTI, ADV. FOR R1; NOTICE TO R2 HELD SUFFICIENT; R3, R4 & R5 ARE MINORS, R/BY R2) THIS RSA CROB IN RSA NO.100822/2016 IS FILED UNDER ORDER 41 RULE 22 OF CODE OF CIVIL PROCEDURE, PRAYING TO ALLOW THE CROSS OBJECTION BY MODIFYING THE R.A.NO.10/2013 PASSED BY 1ST ADDL. SENIOR CIVIL JUDGE COURT, BAGALKOT DATED 13.07.2016 FILED AGAINST THE JUDGMENT AND DECREE PASSED IN O.S.NO.198/2010 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, BAGALKOT DATED 14.12.2012 BY AWARDING 1/3RD SHARE TO THE PLAINTIFF NO.1/CROSS OBJECTOR BY ALLOWING THE CROSS OBJECTION, IN THE ENDS OF JUSTICE AND EQUITY. THIS APPEAL AND CROSS OBJECTION COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2026:KHC-D:362 RSA No. 100822 of 2016 C/W RSA.CROB No. 100002 of 2020 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) RSA No.100822/2016 is filed by the defendant questioning the judgment and decree dated 13.07.2016 passed by I Addl. Senior Civil Judge, Bagalkot, in R.A.No.10/2013, which confirmed the judgment and decree dated 14.12.2012 passed by the Principal Civil Judge & JMFC, Bagalkot, in O.S.No.198/2010. 2. RSA Crob. No.100002/2020 is filed by the plaintiff No.1 questioning the judgment and decree dated 13.07.2016 passed by the I Addl. Senior Civil Judge, Bagalkot, in R.A.No.10/2013, so far as not granting equal share as that of defendant. 3. Rank of parties is referred to as per their rankings before the trial court. 4. It is the case of plaintiffs that Dundappa is the original propositus, who has two wives namely, Ningavva and Chandravva. Defendant is the son of Ningavva and - 5 - HC-KAR NC: 2026:KHC-D:362 RSA No. 100822 of 2016 C/W RSA.CROB No. 100002 of 2020 Dundappa and plaintiff Nos.1 and 2 are the children of Chandravva and Dundappa. Therefore, it is contended that the plaintiffs are also children of Dundappa and hence entitled to equal share as that of the defendant and hence, filed the suit for partition claiming 3/4th share jointly in the suit schedule properties. The trial court has decreed the suit in part declaring that the plaintiff Nos.1 and 2 are entitled for 1/6th share each and defendant is entitled to half share + 1/6th share in the suit schedule properties. 5. Being aggrieved by this judgment and decree, the plaintiffs have preferred the regular appeal in R.A.No.10/2013 and defendant has filed R.A.No.11/2013 before the first appellate court. The first appellate court has dismissed both the appeals thereby confirming the judgment and decree passed by the trial court. 6. The defendant has preferred RSA No.100822/2016 and plaintiffs have filed RSA Crob. No.100002/2020. - 6 - HC-KAR NC: 2026:KHC-D:362 RSA No. 100822 of 2016 C/W RSA.CROB No. 100002 of 2020 7. Learned counsel for the appellant/defendant in RSA No.100822/2016 submitted that the plaintiffs are not children of Dundappa and hence, they are not entitled to any share in the suit schedule properties. It is submitted that the plaintiff Nos.1 and 2 are children of other persons through Chandravva as Chandravva lived with other family members in the village. Therefore, submitted that plaintiff Nos.1 and 2 are not children of Dundappa and Chandravva and as such, decreeing the suit is not correct. Therefore, prays to set aside the judgment and decree passed by the Courts below and dismiss the suit. 8. On the other hand, learned counsel for the cross objectors/plaintiff Nos.1 and 2 submitted that the plaintiff Nos.1 and 2 are the children of Chandravva and Dundappa and Dundappa married Chandravva after the death of first wife Ningavva. Therefore, Chandravva is the legally wedded wife of Dundappa and through them the plaintiff Nos.1 and 2 were born, therefore the marriage between - 7 - HC-KAR NC: 2026:KHC-D:362 RSA No. 100822 of 2016 C/W RSA.CROB No. 100002 of 2020 Dundappa and Chandravva is legally valid one and the plaintiff Nos.1 and 2 are legitimate children, but the trial court has wrongly held that the plaintiff Nos.1 and 2 are illegitimate children. Therefore, prays for equal share in all the suit schedule properties as that of Yamanappa, the defendant. 9. This Court has framed the following Substantial Question of Law in RSA No.100822/2016: <Dundappa, the propositus died on 15.04.2009 without leaving behind female class-I heir. The plaintiffs are said to be the illegitimate sons of Dundappa. In these circumstances, whether the Courts below are justified in law even after amendment to Section 6 of Hindu Succession Act, to apply the doctrine of notional partition to give 1/6th share to each of the plaintiffs?= 10. This Court in RSA Crob. No.100002/2020 has framed the following substantial questions of law: <Whether the Courts below was justified not granting equal share to the cross objectors 3 plaintiff No.1 and his sister since the marriage of the plaintiff No.3 was solemnized with Sri. Dundappa, after the death of his 1st wife?= - 8 - HC-KAR NC: 2026:KHC-D:362 RSA No. 100822 of 2016 C/W RSA.CROB No. 100002 of 2020 11. The rival contentions as per the learned counsel for the appellant/defendant are that Chandravva is not legally wedded wife of Dundappa and plaintiff Nos.1 and 2 are not children of Dundappa. Whereas it is the contention of plaintiff Nos.1 and 2 that they are the children of Chandravva and Dundappa and Dundappa has married Chandravva after the death of the first wife Ningavva. Therefore, plaintiff Nos.1 and 2 are legitimate children of Dundappa. 12. The trial court has held that the plaintiff Nos.1 and 2 are illegitimate children since during the subsistence of first marriage and lifetime of Ningavva, Dundappa married Chandravva and therefore, the trial court categorized the plaintiff Nos.1 and 2 as illegitimate children. Accordingly, granted half share and plus 1/6th to the defendant and 1/6th share each to the plaintiffs, which is confirmed by the first appellate court. - 9 - HC-KAR NC: 2026:KHC-D:362 RSA No. 100822 of 2016 C/W RSA.CROB No. 100002 of 2020 13. The question for consideration in this appeal is, whether Chandravva married Dundappa after the death of first wife Ningavva or not? Though the defendant has contended that plaintiff Nos.1 and 2 are not children of Dundappa through Chandrava, there is no evidence from defendant in this regard. Ex.P-4 is death certificate of Dundappa. Ex.P-7 is the birth certificate showing the name of Dundappa as father. 14. The learned counsel for the appellant/defendant submitted that there is no pleading in the plaint that Chandravva married Dundappa after the death of first wife Ningavva, but admittedly Ningavva is the first wife and Chandravva is second wife and whether, plaintiff Nos.1 and 2 are to be categorized illegitimate children. Therefore, in this context the crucial crux of the factual matrix involved is to be considered on the basis of the oral evidence. 15. The plaintiffs have relied on the judgment and decree passed in M.C.No.3/1996 as per Exs.P-5 and P-6 to - 10 - HC-KAR NC: 2026:KHC-D:362 RSA No. 100822 of 2016 C/W RSA.CROB No. 100002 of 2020 show that Chandravva is the wife of Dundappa. Upon considering these two documentary evidences, it is revealed that Chandravva has filed matrimonial case seeking maintenance against Dundappa. In the said M.C.No.3/1996 the Court has observed according to the averments made in the petition that the marriage of Dundappa and Chandravva is Udiki marriage (union of two bodies). Therefore, in the said case recognizing Chandravva as wife of Dundappa has ordered maintenance. This is the only document that is placed by the plaintiffs to prove that Chandravva is the wife of Dundappa, but this is not sufficient to hold that Chandravva married Dundappa after the death of Ningavva. 16. Upon considering oral evidence of DW2 and DW4, the aspect of Chandravva whether she has married Dundappa after death of Ningavva or not, is to be considered on all its preponderance of probabilities. When there is no documents placed in the suit regarding whether the marriage of Chandravva with Dundappa was solemnized - 11 - HC-KAR NC: 2026:KHC-D:362 RSA No. 100822 of 2016 C/W RSA.CROB No. 100002 of 2020 after the death of Ningavva or not, then the oral evidence of the witnesses is considered. The defendant No.1 is examined as DW1 who has totally denied that Chandravva is the second wife of Dundappa and the plaintiff Nos.1 and 2 are the children of Dundappa only. 17. The DW2 to DW4 are examined on behalf of the defendant. DW2 to DW4 in their examination in chief have denied that Dundappa married Chandravva after the death of first wife Ningavva, but upon consideration of cross examination of DW2 it is admitted that Dundappa had lived along with Chandravva. It is admitted as follows: <ªÉÄÊvÀ zÀÄAqÀ¥Àà ZÀAzÀæªÀé JA§ÄªÀªÀ¼À£ÀÄß ElÄÖPÉÆArzÀÝ, .= 18. Then upon considering the evidence of DW4, he has admitted that after the death of Ningavva the first wife, Dundappa has accompanied <one woman=. The other evidence of DW2 to DW4 are regarding denial of the marriage between Dundappa and Chandravva, but upon considering these two admissions as above discussed, on all - 12 - HC-KAR NC: 2026:KHC-D:362 RSA No. 100822 of 2016 C/W RSA.CROB No. 100002 of 2020 its preponderance of probabilities, one thing is proved that Dundappa had lived with Chandravva and after the death of Ningavva, Dundappa has accompanied a woman and here a woman is nothing but Chandravva and it has to be considered on all its preponderance of probabilities as Chandravva lived with Dundappa as wife after death of Ningavva. Therefore, considering these evidence Dundappa had lived along with Chandravva after the death of his first wife Ningavva. Chandravva had also instituted a divorce petition as per Ex.P-6 stating that her marriage with Dundappa is Udiki marriage. 19. Upon considering all the evidence on record on all its preponderance of probabilities, it is proved that Dundappa married Chandravva or in other words, lived along with Chandravva for long span of time and therefore, plaintiff Nos.1 and 2 were born to Dundappa through Chandravva. In order to controvert this evidence, there is no evidence placed by the defendant. Therefore, the - 13 - HC-KAR NC: 2026:KHC-D:362 RSA No. 100822 of 2016 C/W RSA.CROB No. 100002 of 2020 evidence in this regard is to be accepted that plaintiff Nos.1 and 2 are children of Dundappa through Chandravva as Dundappa lived with Chandravva and recognized Chandravva as second wife after death of Ningavva the first wife. In this regard, the plaintiff Nos.1 and 2 are also to be considered as legitimate children as that of defendant- Yamanappa as per Section 8 of the Hindu Succession Act, 1956. In this regard, the trial court has committed an error in observing that just because Dundappa had two wives it means Dundappa married deceased Chandravva during the subsistence of his marriage with his first wife Ningavva and the trial court coming to conclusion without evidence on record and therefore, wrongly categorized the plaintiff Nos.1 and 2 as illegitimate children without any evidence, is perverse in nature. But as discussed above, on all its probabilities it is proved that Chandravva is recognized as second wife of Dundappa and the plaintiff Nos.1 and 2 are children of Chandravva and Dundappa, therefore, in this regard, both the Courts have committed an error and as - 14 - HC-KAR NC: 2026:KHC-D:362 RSA No. 100822 of 2016 C/W RSA.CROB No. 100002 of 2020 such, orders passed by both the Courts have to be interfered with. Accordingly, I answer that both the Courts are not justified in applying the doctrine of notional partition to give 1/6th share to each of the plaintiffs and also the Substantial Questions of Law are answered that the marriage between Chandravva and Dundappa is solemnized after death of first wife Ningavva. Therefore, the plaintiff Nos.1 and 2 and defendant are entitled to equal share of 1/3rd share each in the suit schedule properties. 20. For the reasons aforestated, I proceed to pass the following: ORDER (i) RSA No.100822/2016 is dismissed and RSA Crob. No.100002/2020 is allowed-in-part. (ii) The judgment and decree dated 13.07.2016 passed by I Addl. Senior Civil Judge, Bagalkot, in R.A.No.10/2013 and the judgment and decree dated 14.12.2012 - 15 - HC-KAR NC: 2026:KHC-D:362 RSA No. 100822 of 2016 C/W RSA.CROB No. 100002 of 2020 passed by the Principal Civil Judge & JMFC, Bagalkot, in O.S.No.198/2010, are hereby set aside. (iii) The plaintiff Nos.1 and 2 and defendant are entitled for 1/3rd share each in the suit schedule properties. (iv) Draw decree accordingly. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE DR /CT-AN List No.: 1 Sl No.: 44