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NC: 2023:KHC-K:7304

RSA No.200381 of 2019

IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 12^TH DAY OF SEPTEMBER, 2023

BEFORE

THE HON'BLE MRS JUSTICE K S HEMALEKHA

REGULAR SECOND APPEAL NO.200381 OF 2019 (PAR)

BETWEEN:

SMT. AMBAMMA

W/O SUGURAYYA SWAMY

AGE:31 YEARS

OCC:AGRICULTURE

R/O GORKAL VILLAGE

TQ: MANVI, DIST: RAICHUR

NOW AT GABBUR, TQ:DEVADURGA

DIST: RAICHUR

…APPELLANT

(BY SRI MAHANTESH PATIL, ADVOCATE)

AND:

1.

SMT. SUDHAMMA

W/O LATE BASAVARAJ SWAMY

AGE:47 YEARS, OCC:HOUSEHOLD AFFAIRS

R/O GORKAL VILLAGE

TQ: MANVI, DIST: RAICHUR- 584101

2.

AMARESH S/O LATE BASAVARAJ SWAMY

AGE:20 YEARS, OCC:STUDENT

R/O GORKAL VILLAGE

TQ: MANVI, DIST: RAICHUR- 584101

…RESPONDENTS

(NOTICE TO R-1 & R-2 SERVED)

THIS RSA IS FILED U/S 100 OF CPC, PRAYING TO SET ASIDE

THE JUDGMENT AND DECREE DATED 20.07.2019 PASSED BY THE

LEARNED SENIOR CIVIL JUDGE AND JMFC, SINDHANUR SITTING AT

MANVI IN REGULAR APPEAL NO.36/2016, IN THE INTEREST OF

JUSTICE AND EQUITY.

THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,

THE COURT DELIVERED THE FOLLOWING:

Digitally signed

by SHYAMALA

Location: HIGH

COURT OF

KARNATAKA

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NC: 2023:KHC-K:7304

RSA No.200381 of 2019

JUDGMENT

The present regular second appeal by the plaintiff-

Ambanna assailing the judgment and decree dated

20.07.2019 in R.A.No.36/2016 on the file of the Senior

Civil Judge and JMFC, Sindhanur sitting at Manvi reversing

the

judgment

and

decree

dated

12.02.2016

in

O.S.No.199/2012 on the file of the Civil Judge and JMFC,

Manvi, whereby, the share in the suit for partition and

separate possession was modified by the first Appellate

Court.

2.

The parties herein are referred to as per their

ranking before the trial court for the sake of convenience.

3.

This Court while admitting the appeal has

framed the following substantial question of law on

30.08.2023:

"Whether the first Appellate Court was justified in

modifying the share of the plaintiff and allotting 1/3

share?"

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NC: 2023:KHC-K:7304

RSA No.200381 of 2019

4.

Learned counsel for the plaintiff-appellant has

been heard on the substantial question of law framed by

this Court.

5.

Though notice issued to the respondents has

been duly served, they have chosen to remain absent.

6.

The sole contention of the plaintiff-appellant is

that the first Appellate Court was not justified in

modifying the judgment and decree of the Trial Court and

holding that defendant No.1-widow is entitled for equal

share in the suit schedule properties without considering

that the parties are governed by the school of Hyderabad-

Karnataka Region and the widow does not get any share

on

a

partition

between

her

husband

and

her

sons/daughters. It is contended that only on the death of

the husband, widow would be entitled for share in the

share of her husband and would contend that the

modification of share by the first Appellate Court awarding

1/3^rd share is not justified.

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RSA No.200381 of 2019

7.

The family pedigree of the plaintiff and the

defendants is as under:

Basavarajayya Swamy

Smt. Akkamahadevi (1^st wife)

Sudamma (2^nd wife)

(Died)

(D-1)

Ambamma (Plaintiff)

Amaresh (Son)

(D-2)

8.

The plaintiff filed suit for partition and separate

possession seeking 4/9^th share in the suit schedule

properties. The plaintiff contended that the properties

being joint family properties and on the death of

Basavarajayya-father of the plaintiff and defendant No.2,

there is no partition or division among the family members

and the plaintiff is entitled for 4/9^th share in the suit

schedule properties.

9.

The suit was resisted by the defendants inter

alia contending that her husband Basavarajayya was not

feeling well and for the medical expenses, the suit

properties were hypothecated and hand loan was raised by

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NC: 2023:KHC-K:7304

RSA No.200381 of 2019

defendant No.1. F