Karnataka High Court
Kamalabai And Ors vs Shivappa on 3 June, 2025
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RSA No. 200261 of 2018
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
DATED THIS THE 03RD DAY OF JUNE, 2025
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
RSA NO. 200261 OF 2018 (PAR)
BETWEEN:
1. KAMALABAI
W/O YALLAPPA KANAMADI @ HARIJAN @ JOLLI,
AGE: 55 YEARS, OCC: HOUSEHOLD
2. MANDIRASHREE
W/O BASAVARAJ DODDAMANI
AGE: 40 YEARS, OCC: HOUSEHOLD
3. JYOTI
W/O SHANKAR DODDAMANI
AGE: 35 YEARS, OCC: HOUSEHOLD
4. KALLAPPA
S/O YALLAPPA HARIJAN @ KANAMADI @ JOLLI
AGE: 32 YEARS, OCC: HOUSEHOLD
ALL ARE R/O KANNI
TQ: SINDAGI, DIST: VIJAYAPUR-586101
...APPELLANTS
(BY SRI.AMEET KUMAR DESHPANDE, SR. COUNSEL FOR
SRI.B BHIMASHANKAR, ADVOCATE)
AND:
SHIVAPPA @ SHIVAYOGI
S/O MAYAWWA KANAMADI @JOLLI @ HARIJAN
AGE:75 YEARS, OCC: AGRICULTURE
R/O NEAR JAIL DARGA, VIJAYAPUR-586101
...RESPONDENT
(BY SRI.K M GHATE, ADVOCATE)
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RSA No. 200261 of 2018
THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DATED: 22.09.2016 PASSED BY PRL.
SENIOR CIVIL JUDGE AT VIJAYPUR IN O.S.NO.141/2013 AND
ALSO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE
DATED: 12.07.2018 PASSED BY THE LEARNED I ADDL.
DISTRICT JUDGE AT VIJAYAPUR IN R.A.NO.147/2016 AND
CONSEQUENTLY BE PLEASED TO DISMISS THE SUIT FILED BY
THE PLAINTIFF.
THIS RSA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 24.02.2025 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT,
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MS JUSTICE J.M.KHAZI
CAV JUDGMENT
(PER: HON'BLE MS JUSTICE J.M.KHAZI) In this Regular Second Appeal, defendants have challenged the concurrent findings of trial Court and First Appellate Court, by which suit of the plaintiff came to be decreed, granting of 1/2 share in the suit schedule properties.
2. For the sake of convenience, parties are referred to by their ranks before the trial Court.
3. It is the case of the plaintiff that the original propositus Yallappa Holer was the absolute owner of suit schedule properties. He died on 19.01.1946 at Kanamadi. -3- RSA No. 200261 of 2018 He was succeed by his daughter Mayawwa and son Kallappa. Plaintiff is the only son of Mayawwa. Kallappa was succeeded by his sons, Yallappa and Sharanappa. Sharanappa died issueless. Defendants are the wife and children of Yallappa. After the death of Yallappa Holer, the names of Mayawwa and Kallappa were entered in the records pertaining to the residential house. However, in respect of the landed property in Sy.No.161/1, only the name of Kallappa was entered behind the back of Mayawwa. Kallappa died during 1957. However, plaintiff and defendants are in joint possession and enjoyment of the suit property.
4. Mayawwa was a rustic villager. She was dedicated as a Devadasi during the lifetime of her father Yallappa Holer. As per the customs prevailing in Harijan community, daughter left as a Devdasi, who remained unmarried is to be treated as a son for the family. Now that plaintiff is aged and his sons are not in good terms with him and there is no provision for his maintenance, he requested defendant to effect partition. However, they -4- RSA No. 200261 of 2018 flatly refused, despite advice by the elder and without any alternative suit is filed.
5. Defendants appeared through counsel and filed written statement disputing the relationship between the parties. There are no records to show that Mayawwa was the daughter of Yallappa and therefore plaintiff is related to the defendants. It is denied that propositus Yallappa Bhimawwa Holer was succeeded by Mayawwa and Kallappa. Kallappa was succeeded by Yallappa and Sharanappa. Sharanappa died issueless. It is true that defendants are the wife and children of Yallappa.
5.1. Defendants state that propositus Yallappa Bhimamma Holer died on 19.01.1946 at Balaganur Village. It is true that propositus Yallappa was the absolute owner of Sy.No.161/1 measuring 20 acres 35 guntas of Balaganur Village, Sindagi Taluk. VPC.No.927 of Kanamadi village, Taluk Bijapur is not related to the family of defendants. It is true that suit schedule properties are owned and possessed by propositus Yallappa. It is denied that after -5- RSA No. 200261 of 2018 the death of Yallappa, he was succeeded by his son Kallappa and daughter Mayawwa. It is false that the name of Mayawwa and Kallappa were entered in VPC.No.927 of Kanamadi village. It is true that name of Kallappa alone was entered in RR of Sy.No.161/1 of Balaganur village. It is denied that the said entry was behind the back of Mayawwa.
5.2. It is denied that Mayawwa was a rustic village lady and she was left as Devadasi during the lifetime of propositus Yallappa. It is denied that as per custom prevailing in Harijan community, the daughter remained unmarried as Devdasi is to be treated as a son for the family. It is true that after the death of Kallappa, the names of his sons, Yallappa and Sharanappa were entered in RR of suit land. It is true that thereafter defendants got their names entered in MR 51/09-10. It is denied that it was done behind the back of plaintiff. It is denied that plaintiff is in joint possession of suit properties and having half share and he requested for partition and despite advice by the elders defendants refused to grant him share. -6- RSA No. 200261 of 2018
5.3. After the death of Sharanappa, the name of Yallappa was entered in the suit land as he was the only LR, Sharanappa who died issueless. Defendants are the owner in possession and cultivation of suit land. VPC.No.927 is not related to the family of defendants. Suit is barred by limitation and pray to dismiss this suit.
6. Based on the pleadings, on 25.08.2014, the trial Court framed issues. However, on 23.08.2016, the same have been recasted, as under:
1. "Whether the plaintiff proves that his mother Mayawwa was the daughter of Yallappa and she succeeded to the suit properties along with her brother Kallappa?
2. Whether this court is having territorial jurisdiction?
3. Whether suit of the plaintiff is barred by law of limitation?
4. Whether the plaintiff proves that he is entitled for partition and separate possession of his half share in the suit properties?
5. What order or decree?"
7. In order to prove his case, plaintiff examined himself as PW-1 and two witnesses as PWs-2 and 3. He relied upon Exs. P1 to 8.
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8. On the other hand, defendant No.1 examined herself as DW-1 and two witnesses as DWs-2 and 3. She relied upon Exs.D1 to 4.
9. The trial Court decreed the suit, granting partition and separate possession of half share in the suit schedule properties.
10. Aggrieved by the same defendant filed appeal before the First Appellate Court in R.A.No.147/2016. It came to be dismissed, confirming the judgment and decree of the trial Court.
11. Aggrieved by the concurrent findings of the trial Court and First Appellate Court, defendants are before this Court contending that both the trial Court and First Appellate Court have erred in coming to the conclusion that plaintiff is entitled for half share in the suit schedule land. The same is against Hindu Succession Act. They have committed grave error in decreeing the suit only on the basis of admission given by defendant during her cross- examination. The trial Court has also committed grave error in holding that suit is within limitation, when the -8- RSA No. 200261 of 2018 mutation in the name of Kallappa was made on 19.01.1946 and it remained unchallenged throughout. The First Appellate Court committed error in not discussing the issue of limitation. The Courts below have also committed error in relying upon Ex.P5 in the absence of evidence. Viewed from any angle, the impugned judgment and decree of the trial Court and First Appellate Court are not sustainable and pray to set aside the same and dismiss the suit.
12. In support of the arguments, learned counsel for the appellant has relied upon the following decisions:
(i) Subbaratna Mudali and Ors. Vs.
Balakrishnaswami Naidu (Subbaratna
Mudali)1
(ii) Gangamma @ Chinnakempammal Vs.
Cuddapah Kuppammal and Ors.
(Gangamma)2
(iii) Rameshwari Devi and Ors Vs. Nirmala Devi and
Ors.(Rameshwari Devi) 3
(iv) Gowramma Vs. Rangappa (Gowramma)4
(v) Ratanlal @ Babulal Chunilal Sumsuka Vs.
Sundarabai Govardhandas Samsuka (Dead) Through Legal Representatives and Ors. (Ratanlal @ Babulal Chunilal Sumsuka) 5 1 (1917) 33 MLJ 207/AIR 1918 Madras 642 2 (1938) 2 MLJ 923/AIR 1939 Madras 139 3 Civil Appeal Nos.4912-4913/2011 (SLP(C)Nos.3157-3158/2011) DD:04.07.2011 4 RSA.No.3090/2007 5 (2018) 11 SCC 119 -9- RSA No. 200261 of 2018
13. On the other hand learned counsel for plaintiff supported the judgment and decree passed by the trial Court as well as the First Appellate Court and sought for dismissal of the appeal also.
14. In support of his arguments, he has relied upon the following decisions:
(i) Pavitrabai and Ors. Vs. Vittal and Ors.
(Pavitrabai)6
(ii) Narayanaswamy and Anr. Vs. Rathnamma and Ors. (Narayanaswamy)7
15. Based on the grounds urged by the defendants vide order dated 10.07.2019, the following two substantial questions of law came to be framed:
1. Whether the finding by the Trial Court that the suit is (barred by limitation is based on the evidence on record and permissible in law.
2. Whether the appellate Court could have confirmed the judgment of the Trial Court without examining the question of limitation.
16. Heard arguments and perused the record. 6 RSA.No.200217/2022 7 2024(5) Kar.LJ 32
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RSA No. 200261 of 2018
17. Thus, it is the specific case of the plaintiff that originally suit properties consisting of agriculture land and a residential house, belong to Bheemawwa Holer, who was a Devadasi. Her son Yallappa Bhimawwa Holer inherited the same. He had a daughter Mayawwa-the mother of plaintiff and a son Kallappa. Defendants Nos.2 to 4 are the grandchildren of Kallappa. Plaintiff is claiming half share in the suit schedule properties on the ground that his mother Mayawwa was a Devadasi and remained unmarried and under the custom prevailing in their community, a Devadasi, who remain unmarried is to be treated as a son and she would be entitled for equal share as that of a son.
18. Though defendants admit the fact that Bhimawwa Holer was a Devadasi and Yallappa Bhimawwa Holer was her son and he inherited suit land through his mother, they have disputed that suit house belongs to the family of Yallappa Bhimawwa Holer. They have also disputed that Mayawwa was the daughter of Yallappa Bhimawwa Holer and thereby plaintiff is entitled for half share in the suit land.
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RSA No. 200261 of 2018
19. Before referring to the facts of the case, it is necessary to refer to the decisions relied upon by the parties. It is submitted by Sri.B.Bhimashankar, learned counsel representing defendant that he has not come across any decisions of the Hon'ble Supreme Court on the subject of inheritance by or through Devadasi. However, in Subbaratna Mudali and Gangamma, referred to supra the Madras High Court has dealt with the subject and discussed about the custom prevailing in Devadasi community to treat a Devadasi as a son and provide her share equal to that of a son. In the above decisions, the Hon'ble Madras High Court has discussed in detail the reasons and necessity of treating a Devadasi as a son while sharing the properties either of a Devadasi or her legal representatives. In the light of the ratio in the above decisions, it is necessary to examine whether the trial Court as well as the First Appellate Court are justified in decreeing the suit.
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RSA No. 200261 of 2018
20. It is pertinent to note that according to the plaintiff after the death of Yallappa Bhimawwa Holer the names of Mayawwa and Kallappa were mutated in respect of suit house. Only the name of Kallappa was entered in respect to suit land, behind the back of Mayawwa. Since she was a rustic villager and a Devadasi, she was not aware of it. After the death of Kallappa, the names of defendants were entered in the Revenue records in respect of suit land. It is pertinent to note that Ex.P2 is the assessment extract in respect of suit house for the year 2012-13. It bears the names of Kallappa and Mayawwa. Ex.P1 is the RR extract of suit land for the year 2012-13. It bears the names of defendants. Defendants do not dispute that Ex.P2 bears the name of Kallappa, but claimed that the said property has nothing to do with their family.
21. In this regard, it is relevant to refer to the written statements averments. Initially at paragraph Nos.3 and 4, defendants admitted that propositus Yallappa was the absolute owner of land in Sy.No.161/1, measuring 20
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RSA No. 200261 of 2018acres 35 guntas of Balaganur village, Taluk Sindagi and VPC.No.927 of Kanamadi village, Bijapur.
22. In paragraph No.3 the earlier sentence was "propositus Yallappa S/o Bhimawwa Holer died on 19.01.1946 at Kanamadi village". Later, before the word 'propositus', a sentence is added to the effect that 'These defendants say that' and the word "Kanamadi" is struck off and in its place, "Balaganur" is added. After the insertion, the last sentence read "These defendants say that propositus Yallappa, S/o Bhimmawwa Holer died on 19.01.1946 at Balaganur village. After the striking off and addition, the sentence appears as under:
These defendants say that "/Propositus Yallappa S/o Bhimawwa Holer died on 19.1.46"
Balaganur at Kanamadi village.
[strike through by me]
23. However, in paragraph No.4 after Sindagi a full stop is added and the word 'The' is inserted and the word 'and' is deleted and a sentence is added stating that "VPC No.927 of Kanamadi Village Tq Bijapur is not related
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to family of defendants". After the striking off and addition, paragraph No.4 appears as under:
"4. It I true that Propositus Yallappa was the absolute owner of Sy.No. 161/1 measuring 20 acres 34 gunthas assessed at Rs.7.10 paise situated at Balaganur village, Tq:
The Sindagi. and VPc.No.927 of Kanamadi village, tq:
[strike through by me] Bijapur. is not related to family of the defendants."
24. These insertion of a separate sentence and other words appears to be made on a type writer as the font in the other portion of the written statement and this insertion are different. It is also relevant to note that these insertions are not signed by the learned counsel appearing for the defendants who has signed the written statement. By making these insertions, defendants want to assert that the propositus Yallappa had nothing to do with any property at Kanamadi and only suit land belong to him. It appears, by making these insertions, defendants have taken a conscious decision to disown the suit house for the simple reason that the name of Kallappa is included as
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RSA No. 200261 of 2018Khatedar along with Mayawwa which would go to show that they are related.
25. However, while so doing the defendants have forgotten the fact that in the first sentence of paragraph No.5 of the written statement they have admitted that suit properties are owned and possessed by propositus Yallappa.
26. This clearly supports the contention of the plaintiff that plaintiff and before him, his mother Mayawwa was in joint possession and enjoyment of suit properties and while in respect of suit house names of Mayawwa and Kallappa were mutated, in the respect of suit land, only the name of Kallappa was mutated and it was behind the back of Mayawwa. Therefore, as held in Narayanaswamy and Pavitrabai, referred to supra the suit seeking partition and separate possession of half share in the suit properties is not barred by limitation. It is not the case of the defendants that plaintiff or his mother were ousted from the possession of the suit properties. Therefore, the trial
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RSA No. 200261 of 2018Court has rightly held that the suit is not barred by limitation.
27. On appreciation of the oral and documentary evidence placed on record, the trial Court as well as First Appellate Court held that not only Bhimawwa - the mother of original propositus Yallappa, but also Mayawwa - the mother of plaintiff were Devadasis. They remained unmarried. Therefore, as per the custom prevailing in Devadasi community, after the death of Yallappa, Mayawwa and her brother Kallappa are entitled for equal share. Consequently, plaintiff is entitled to claim the share of Mayawwa.
28. The First Appellate Court after re-appreciation of the entire evidence placed on record has clearly held that plaintiff is the grandson of propositus Yallappa Bhimawwa Holer and in joint possession and enjoyment of suit properties, especially in the light of the fact that in suit house, the name of plaintiff's mother was mutated, which clearly established that they were in joint position and
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RSA No. 200261 of 2018enjoyment of suit properties. Though not in specific terms, the First Appellate Court has also clearly affirmed the findings of the trial Court that the suit is in time.
29. It is submitted by the learned counsel for defendants that substantial question of law regarding the custom prevailing in Harijan community to treat a daughter who is left as Devadasi and remaining unmarried is to be treated as a son of the family is to be framed and decided by this Court. In the plaint, the plaintiff has clearly averred that his mother Mayawwa was a Devadasi and remained unmarried and as per the custom prevailing in their community, she is to be treated as a son and as such entitled for equal share. This is the basis on which partition is sought by the plaintiff. Such being the case, issue No.1 covers this aspect. Both parties have understood the issue involved and lead evidence to prove and disprove the same. Therefore, framing of separate issue to that effect was not required. In fact, both trial Court as well as the First Appellate Court have examined this aspect and clearly held that though defendants have disputed that plaintiff is
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RSA No. 200261 of 2018related to them through the propositus Yallappa Bhimawwa Holer, the cross examination of DW-1 reveal that they have not made any enquiry as to the parents and grandparents of plaintiff.
30. DW-1 has clearly admitted that Bhimawwa, the mother of Yallappa was a Devadasi and the suit properties were belonging to her and her son Yallappa Holer succeeded to them. She also admitted that as per the custom prevailing in the Harijan community, Devadasi is required to leave at least one of her daughters as Devadasi. Though she has disputed that Mayawwa-the mother of plaintiff was left as a Devadasi, the testimony of PWs-1, 2, 3 as well as the documents placed on record evidence the fact that Mayawwa was a Devadasi and consequently in the school records, plaintiff is described as the son of Mayawwa instead of referring to his father's name, which would be the normal procedure followed while admitting the child to the school. In fact, during the cross- examination of PWs-1 to 3, no suggestions are made
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RSA No. 200261 of 2018disputing that Mayawwa was Devadasi and she remained unmarried.
31. The reasons for treating a Devadasi as a son is to enable her and her children to claim share in the property, whether the woman who is dedicated as Devadasi get income as a temple dancer or ultimately if she is forced into prostitution and acquired property. Before 1956, daughters were not entitled for any share. When Devadasi is instrumental in earning and acquiring property, it would be legitimate for her to claim share. There may be cases where she may not have any son, in which case she or her daughter would be prevented from claiming property. Therefore, this custom of treating Devadasi as a son, which enable her and her children to claim share is recognized. Considering this aspect and also the admissions given by PW-1, the trial Court as well as the First Appellate Court have rightly held that as a Devadasi, Mayawwa and after her death, plaintiff being her son is entitled for half share in the suit properties.
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RSA No. 200261 of 2018
32. So far as Rameshwari Devi, Gowramma and Ratanlal, referred to supra are concerned, they are not applicable to the facts and circumstances of the present case.
33. The conclusions arrived at and the findings given by the trial Court as well as the First Appellate Court are consistent with the evidence on record and this Court finds no perversity calling for interference and accordingly substantial question No.1 is answered in the Affirmative. Since the First Appellate Court has examined the aspect of limitation, though indirectly, substantial question No.2 does not arise for consideration. In the result the appeal fails and accordingly the following:
ORDER
(i) Appeal filed by the appellants/defendants under Section 100 of CPC is hereby dismissed.
(ii) The impugned judgment and decree dated 22.09.2016 in O.S.No.141/2013 on the file
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of Prl.Senior Civil Judge, Vijaypur and judgment and decree dated 12.07.2018 in R.A.No.147/2016 on the file of I Addl.District Judge, Vijayapura, are confirmed.
(iii) The Registry is directed to send back trial Court as well as Sessions Court records along with copy of this judgment forthwith. In view of disposal of the appeal, pending application/s, if any, stands disposed off, as no separate order is required.
Sd/-
(J.M.KHAZI) JUDGE RR