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2023 DIGILAW 1215 (KAR)

Ningavva v. Laxmavva

2023-10-12

ANANT RAMANATH HEGDE

body2023
JUDGMENT Anant Ramanath Hegde, J. - The suit is filed by the widow of one Basappa against the two sisters, brother and mother of her husband. In the said suit, the second wife of Basappa and the children from the second wife are also made parties. The first defendant is the second wife. The defendants No.2 to 5 are the children from the second wife. 2. The admitted genealogy is as under: 3. The suit was contested by the second wife and the children of the second wife, on the premise that the defendant No.2 is the first wife and defendants No.2 to 5 are the children from the first wife. Rest of the defendants did not file any written statement. The trial Court decreed the suit holding that the plaintiff is the first wife and granted 1/25th share in favour of the plaintiff. The claim of the first defendant that she is the first wife is rejected. Aggrieved by the aforementioned decree, the appeal is filed by defendants No.1 to 5. The plaintiff has not filed any appeal. 4. Learned counsel appearing for the appellants would contend that the judgment and decree passed by the trial Court is unsustainable. The trial Court has failed to appreciate the evidence on record, which clearly stated the plaintiff is not the first wife of deceased Basappa, whereas the defendant No.1 is the first wife of deceased Basappa and defendants No.2 to 5 are the children from the first wife. Thus it is urged that the decree is to be set aside and the plaintiff's suit is to be dismissed. It is also urged that, assuming that the defendant No.1 is the second wife and defendants No.2 to 5 are the children from the second wife, the children from the second wife have to be granted a share in the property of deceased Basappa. It is further urged that the plaintiff/respondent No.1 has died on 27.01.2019, without leaving any Class-I heirs and the property of plaintiff No.1, if any, should go to the children of Basappa, namely, defendants No.2 to 5. 5. Learned counsel for the respondents would urge that, defendant No.1 has failed to establish that she is the legally wedded wife of deceased Basappa. 5. Learned counsel for the respondents would urge that, defendant No.1 has failed to establish that she is the legally wedded wife of deceased Basappa. The evidence on record would clearly establish that the plaintiff was the legally wedded wife of deceased Basappa and the trial Court is justified in rejecting the claim of defendant No.1 that she is the legally wedded wife of deceased Basappa. The trial Court rightly granted the decree for partition, however, erred on the quantum of share that has to be awarded in favour of the plaintiff and as such, urged that the share has to be computed in accordance with law in exercise of power under Order XLIII Rule 1 of the Code of Civil Procedure. 6. This Court has considered the contentions raised at the Bar. 7. The following points arise for consideration: i. Whether the appellant No.1 is able to establish that she is the legally wedded wife of deceased Basappa? ii. Whether the computation of share by the trial Court is in accordance with law? 8. As can be noticed from the records placed before the Court, the plaintiff made a claim that she is the legally wedded wife of deceased Basappa and has produced the marriage invitation card and examined two witnesses to support her case. The defendant No.1 to substantiate her case that she is the legally wedded wife, has produced the school certificate of her children namely, defendants No.2 to 5 and also Aadhar card, Ration card and Voter Identity card. Though these documents would reveal that Ningavva lived with Basappa and she is shown to be the wife of Basappa in the records, the wedding invitation card produced by the plaintiff at Ex.P10 and the evidence of two witnesses namely PWs.2 and 3 would clearly demonstrate that the plaintiff Laxmavva married Basappa. It is also forthcoming from the records that Laxmavva did not have any children from the marriage and she consented for the second marriage of the defendant No.1 with her husband and that is why Ningavva started residing with Basappa as his second wife. Despite the consent, the fact remains that the marriage is not valid because the first marriage was subsisting. This being the position, the trial Court, on appreciation of the evidence has rightly concluded that the plaintiff is the first wife and defendant No.1 is the second wife. Despite the consent, the fact remains that the marriage is not valid because the first marriage was subsisting. This being the position, the trial Court, on appreciation of the evidence has rightly concluded that the plaintiff is the first wife and defendant No.1 is the second wife. Thereafter the Court has granted a decree for 1/25th share in the suit schedule properties in favour of the plaintiff. 9. Admittedly, the suit properties are ancestral properties in the hands of Basappa and Basappa had mother, brother and two sisters, who inherited the properties after the death of his father Shivappa. Hence Basappa had 1/5th undivided share in the suit schedule properties. Basappa's 1/5th undivided share in the suit schedule properties would devolve upon Laxmavva as well as defendants No.2 to 5, the children from the second wife and mother. Thus, the plaintiff would be entitled to 1/30th share and not 1/25th share as held by the trial Court. 10. It is also required to be noticed that, now Laxmavva is no more. Since Laxmavva is no more, her 1/30th share in the suit schedule properties would devolve upon the heirs of Basappa under section 15(1)(a) of the Hindu Succession Act, 1956. The heirs of Basappa, who are entitled to succeed the property are, mother Karevva - defendant No.6 and defendants No.2 to 5, the children from the second wife. Thus, 1/30th share of Laxmavva will devolve upon five persons. In that event, the decree has to be modified by awarding share of Laxmavva in favour of defendants No.2 to 6 equally. Hence the points for consideration are answered as above. 11. Hence the following: ORDER i. Appeal is allowed in part. ii. The impugned judgment and decree dated 14.03.2018, passed in O.S.No.356/2015, on the file of the Principal Civil Judge, Gokak, are modified. iii. Each of the appellants No.2 to 5 is entitled to 1/25th share. iv. Defendant No.6 - mother is entitled to 6/25th share. v. Siddavva - defendant No.7, Savakka - defendant No.8, Gurappa - defendant No.9, will have 1/5th share each. vi. The parties to the proceedings are entitled to initiate final decree proceedings. In view of disposal of the main appeal, pending applications, if any, do not survive for consideration.