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2009 Supreme(Kar) 313
2011 (1) KCCR 421
KARNATAKA HIGH COURT CIRCUIT BENCH AT GULBARGA
Anand Byrareddy and A.N. Venugopala Gowda; JJ
Kanteppa and Others - Appellants
Versus
Smt. Vimalabai and Others -Respondents
Regular First Appeal No. 64 of 2003 alongwith Regular First Appeal CROB. No. 14/2003 and Regular First Appeal CROB. No. 16 of 2003,
Decided on 29.5.2009
In Regular First Appeal No. 64 of 2003 Sri KM. Ghate, for Appellants;
Sri Shankar Rao Shatker, for Respondent-2 (A-F);
Sri Ashok R. Kalyanshetty, for Respondent-l
In Regular First Appeal CROB No. 14 of 2003 Shri Shankar Rao Shetkar and Shri M.B. Ganje, for Objectors;
Shri KM. Ghate for Respondent-2 and legal representatives of Respondent-3;
Shri Ashok R. Kalyan Shetty, for Respondent-I.
In Regular First Appeal CROB No. 16 of 2003 Shri S.S. Mamdapur, for Objectors;
Shri KM. Ghate, for Respondents.
Headnote:CODE OF CIVIL PROCEDURE, 1908 - Section 54: [Anand Byrarddy & A.N.Venugopala Gowda, JJ] Execution of decree for partition - Held, The direction of the Trial Court having been issued to the concerned Deputy Commissioner to execute a preliminary decree even without there being a final decree, suffer from infirmity.
CODE OF CIVIL PROCEDURE, 1908 - Section 54: [Anand Byrarddy & A.N.Venugopala Gowda, JJ] Same property - Two types of partition - Whether two types of partitions, in respect of the same property, is contemplated in law? - Held, The Trial Court has held that the plaintiff is entitled to 4/21st share in Schedule A and B property and has simultaneously held, that the legal representatives of Defendant No. 3 are entitled to 1/4th share in the same property, which is not contemplated in law.
HINDU MARRIAGE ACT, 1955 - Section 11: [Anand Byrarddy & A.N.Venugopala Gowda, JJ] Validity of marriage - Whether the alleged marriage between the plaintiff and the deceased is valid? - Held, Admittedly there was 15 years of age difference between the plaintiff and the deceased which would render the assertions of the defendants, a strong probability - If the marriage of Nagamma and Gurubassapa, in this scenario, is accepted as an established fact, and if she was not divorced during the lifetime of Gurubassapa, and if she was alive at the time of the alleged marriage of the plaintiff with the deceased Gurubassapa, the same would be rendered invalid.
HINDU SUCCESSION ACT, 1956 - Section 8, Schedule Clause (1): [Anand Byrarddy & A.N.Venugopala Gowda, JJ] Right of succession - Held, Since, the plaintiff is not the legally wedded wife of the deceased Gurubassapa, and does not satisfy the class of heirs under the Act, she is not entitled to claim any share, in the properties of the deceased Gurubassapa.
HINDU SUCCESSION ACT, 1956 - Section 30: [Anand Byrarddy & A.N.Venugopala Gowda, JJ] Will - Whether the Will executed by the deceased Gurubassapa and defendant No.3, Mahadappa, can be negated? - Held, No. In the absence of any prayer in the suit, to declare the Will executed by Gurubassapa and Mahadappa as null and void, the Trial Court has without jurisdiction, proceeded to declare the same as null and void.
Anand Byrareddy, J: Heard the Counsel for the parties at length.
2. The brief facts of the case are as follows:
The parties are referred to by their rank before the Trial Court, for the sake of convenience. The plaintiff claims to be the widow of one Gurubasappa Son of Late Gundappa Hegge.
Gundappa Hegge was said to be the manager of a Hindu, joint family consisting of himself and "his four sons: 1) Kantappa 2) Gurubasappa 3) Ishwarappa 4) Mahadappa. After Gundappa Hegge's death, his above named sons are said to have continued as a joint family.
The genealogical tree of the family is shown as under in the plaint:
As seen above, Defendant No.5 is the daughter of Gundappa Hegge and Defendant Nos. 6 to 10 are the children of one other deceased daughter of Gundappa Hegge.
2. It was the plaintiffs case that the properties described in the suit Schedule A to E are joint family properties. It is her further case that her husband having died after suffering an illness, his brothers have, jointly and severally, misappropriated the joint family funds and have denied her claim for a share in respect of the joint family properties. It was in this background that a suit was filed for partition and separate possession of her 4/21st share in the suit properties.
3. The suit was contested by Defendant nos. 1 to 4, who filed their joint written statement; Defendant No.6 had filed a separate written statement. The legal representatives of Defendant No.3, who came on record pursuant to the death of Defendant No.3 during the course of the suit, filed a written statement substantially admitting the plaintiff's claim, while disowning the written statement filed on behalf of Defendant No.3 and raising a claim for 1/4th share in the suit properties as the legal representatives of Defendant No.3.
4. It was the case of Defendant nos. 1 to 4 that the plaintiff was not the legally wedded wife of Gurubasappa and was only a oncubine, or the kept mistress, of Gurubasappa. It was asserted by them that one Nagamma was the legally wedded wife, who was not divorced during the lifetime of Gurubasappa and was alive as on the date of the suit. It was their further case that Gurubasappa had no issues. It. was contended that several properties described in the suit schedule did not belong to the family at all and some did not even exist. It was also contended that Gurubasappa had, by a registered Will dated 09.01.1986, bequeathed his undivided share in the joint family properties in their favour.
5. Defendant No.6 also denied the status of the plaintiff as the widow of Gurubasappa and also disputed the correctness of the suit schedule and staunchly denied any right in the plaintiff to claim partition of the suit properties. The said Defendant also preferred a counter-claim seeking a declaration that the plaintiff is not the legally wedded wife of Gurubasappa and hence was not a member of the family.
6. The legal representatives of Defendant No.3, on the other hand, chose to file a written statement in their own right and supported the case of the plaintiff. They also preferred a counter-claim seeking 1/4th share in the suit properties.
7. The Trial Court framed issues placing the burden on the plaintiff to prove that,-
(a) the 'suit properties are joint family properties liable for partition and
(b) that she is entitled to 4/21st share and separate possession of the suit properties;
While placing the burden on the legal representatives of Defendant No.3 to prove that.-
(a) they were entitled to one-fourth share and separate possession over the suit properties and
(b) that a Will, said to have been executed by deceased Defendant No.3 bequeathing his undivided share in the properties in favour of Defendant No.1 and2, as being null and void;
While placing the burden on the legal representatives of Defendant No.2 and Defendant No.6 to prove that the plaintiff was not the legally wedded wife of Gurubasappa.
8. The Trial Court decreed the suit in part, holding that the plaintiff
