Karnataka High Court
Channavva Kom. Ishwarappa Yadawad vs Anasavva W/O Fakirappa Saunshi on 4 March, 2024
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NC: 2024:KHC-D:4840-DB
RFA No. 100182 of 2016
C/W RFA No. 100147 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.100182 OF 2016 (DEC/PAR)
C/W
REGULAR FIRST APPEAL NO. 100147 OF 2016
IN RFA NO.100182 OF 2016:
BETWEEN:
1. SMT. CHANNAVVA
KOM. ISHWARAPPA YADAWAD,
AGE: 67 YEARS,
OCC: HOUSE HOLD WORK,
R/O: DEVANGPETH,
GOPANKOPPA, HUBBALLI-580001.
2. SMT. GIRIJAVVA
KOM. MAHARUDRAPPA BALLARI,
SHIVAKUMAR AGE: 62 YEARS,
HIREMATH
OCC: HOUSE HOLD WORK,
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
Date: 2024.03.13
R/O: VEERAPUR ONI,
12:03:07 +0530
HUBBALLI-580001.
...APPELLANTS
(BY SRI.SANGRAM S.KULKARNI, ADVOCATE)
AND:
1. SMT. ANASAVVA
W/O. FAKIRAPPA SAUNSHI,
AGE: 52 YEARS,
OCC: HOUSE HOLD WORK,
R/O: NOOLVI, TQ: HUBBALLI-580001.
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NC: 2024:KHC-D:4840-DB
RFA No. 100182 of 2016
C/W RFA No. 100147 of 2016
2. BASAVARAJ
S/O. FAKIRAPPA SAUNSHI,
AGE: 32 YEARS, OCC: COOLIE,
R/O: NOOLVI, TQ: HUBBALLI-580001.
3. IRANNA
S/O. FAKIRAPPA SAUNSHI,
AGE: 28 YEARS, OCC: COOLIE,
R/O: NOOLVI, TQ: HUBBALLI-580001.
4. SMT. AKKAMMA
W/O. SANTOSH SHETTI,
PRIOR TO MARRIAGE KNWON AS,
AKKAMMA D/O. FAKIRAPPA SAUNSHI,
AGE: 24 YEARTS,
OCC: HOUSEHOLD WORK,
R/O: KELGERI, DHARWAD-580001.
5. NAGARAJ
S/O. FAKIRAPPA SAUNSHI,
AGE: 26 YEARS, OCC: COOLIE,
R/O: NOOLVI, TQ: HUBBALLI-580001.
6. IMAMHUSSAIN
S/O. MOHAMMADGOUSE LAKKUNDI,
AGE: MAJOR, OCC: AGRICULTURE
AND BUSINESS, R/O: SADAT COLONY,
2ND CROSS, OLD HUBBALLI,
HUBBALLI-580001.
...RESPONDENTS
(BY SRI.SHIVARAJ C.BELLAKKI, ADVOCATE FOR R1 TO R5;
SRI.GOURISHANKAR MOT, ADVOCATE FOR R6)
THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 18.03.2016 PASSED IN
O.S.NO.298/2014 ON THE FILE OF THE II ADDITIONAL SENIOR
CIVIL JUDGE, HUBBALLI, PARTLY DECREEING THE SUIT FILED
FOR PARTITION AND SEPARATE POSSESSION AND
DECLARATION.
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NC: 2024:KHC-D:4840-DB
RFA No. 100182 of 2016
C/W RFA No. 100147 of 2016
IN RFA NO.100147 OF 2016:
BETWEEN:
IMAM HUSSAIN LAKKUNDI
S/O. MOHAMMADGOUSE LAKKUNDI,
AGE: 53 YEARS, OCC: AGRICULTURE/
BUSINESS, R/A: SADAT COLONY,
2ND CROSS, OLD HUBBALLI,
HUBBALLI-580024.
...APPELLANT
(BY SRI.GOURISHANKAR H.MOT, ADVOCATE)
AND:
1. SMT. ANASAVVA
W/O. FAKKIRAPPA SAUNSHI,
AGE: 52 YEARS,
OCC: HOUSEWIFE,
R/A: NOOLVI,
TALUK: HUBBALLI-580029,
DIST: DHARWAD.
2. BASAVRAJ
S/O. FAKKIRAPPA SAUNSHI,
AGE: 32 YEARS,
OCC: COOLIE, R/A: NOOLVI,
TALUK: HUBBALLI-580029,
DIST: DHARWAD.
3. IRRANNA
S/O. FAKKIRAPPA SAUNSHI,
AGE: 28 YEARS,
OCC: COOLIE, R/A: NOOLVI,
TALUK: HUBBALLI-580029,
DIST: DHARWAD.
4. SMT. AKKAMMA
W/O. SANTOSH SHETTI,
PRIOR TO MARRIAGE
KNOWN AS AKKAMMA
D/O. FAKKIRIAPPA SAUNSHI,
AGE: 24 YEARS,
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NC: 2024:KHC-D:4840-DB
RFA No. 100182 of 2016
C/W RFA No. 100147 of 2016
OCC: HOUSSEWIFE,
R/A: KELGERI,
TALUK: DHARWAD-580001,
DIST: DHARWAD.
5. NAGRAJ
S/O. FAKKIRAPPA SAUNSHI,
AGE: 26 YEARS,
OCC: COOLIE, R/A: NOOLVI,
TALUK: HUBBALLI-580029,
DIST: DHARWAD.
6. CHANAVVA YADWAD
W/O. ISWARAPPA,
AGE: 67 YEARS,
OCC: HOUSEWIFE,
R/O: DEVANGPETH,
GOPANKOPPA,
HUBBALLI-580030,
DIST: DHARWAD.
7. GIRAJAVVA BALLARI
W/O. MAHARUDRAPPA,
AGE: 62 YEARS,
OCC: HOUSEWIFE,
R/A: VEERAPUR ONI,
HUBBALLI-580030,
DIST: DHARWAD.
...RESPONDENTS
(BY SRI.SHIVARAJ C.BELLAKKI, ADVOCATE FOR R1 TO R5;
SRI.SANGRAM S.KULKARNI, ADVOCATE FOR R6;
APPEAL AGAINST R7 ABATED V.O.DATED 21.11.2023)
THIS RFA IS FILED UNDER SEC. 96 OF CPC., PARYING TO
CALL FOR RECORDS AND PERUSE THE SAME AND ALLOW THE
APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE
DATED 18.03.2016 IN O.S.NO.298/2014 PASSED BY THE II
ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, AND DISMISS
THE SUIT OF RESPONDENT NOS.1 TO 5 IN THE INTEREST OF
JUSTICE AND EQUITY.
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NC: 2024:KHC-D:4840-DB
RFA No. 100182 of 2016
C/W RFA No. 100147 of 2016
THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, E.S.INDIRESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are arising out of the Judgment and decree dated 18.03.2016 in O.S.No.298/2014 on the file of II Additional Senior Civil Judge, Hubballi, (for short, hereinafter referred to as 'Trial Court') decreeing the suit of the plaintiff in part.
2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.
3. RFA No.100182/2016 is filed by defendant Nos.1 and 2 and RFA No.100147/2016 is filed by defendant No.3 in O.S.No.298/2015, challenging the Judgment and decree dated 18.03.2016.
4. Facts of the case:
It is the case of the plaintiffs that, the plaintiff No.1 is the wife of late Fakirappa and plaintiff Nos.2 to 5 are the children of late Fakirappa and plaintiff No.1. It is further -6- NC: 2024:KHC-D:4840-DB RFA No. 100182 of 2016 C/W RFA No. 100147 of 2016 stated in the plaint that, the original propositus Siddappa had two wives namely Kashavva and Fakiravva. Kashavva through Siddappa had two children namely Channavva (defendant No.1) and Girijavva (defendant No.2). Fakiravva had a son by name Fakirappa, who died on 18.06.2008 leaving behind the plaintiffs as legal heirs to succeed to his estate. It is stated by the plaintiffs that, as the suit schedule properties are the ancestral properties of late Siddappa and as such, the plaintiffs are entitled for share in the suit schedule properties. It is also stated in the plaint that, defendant No.2, without the consent of the plaintiffs, has sold the land bearing survey No.163/1+2/A, measuring 2.24 acres situate at Gabbur village in favour of defendant No.3, as per two registered sale deeds and being aggrieved by the same, the plaintiffs have filed O.S.No.298/2014 on the file of the trial Court, seeking relief of partition and separate possession in respect of the suit schedule properties.-7-
NC: 2024:KHC-D:4840-DB RFA No. 100182 of 2016 C/W RFA No. 100147 of 2016
5. After service of notice, defendant Nos.1 to 3 entered appearance and filed written statement. It is the principal contention of the defendant No.1 that, though the plaintiff Nos.2 to 5 are the children of plaintiff No.1- second wife of late Siddappa, however, Fakiravva herself had executed a relinquishment deed dated 15.03.1982 in favour of the defendant Nos.1 and 2, and accordingly sought for dismissal of the suit.
6. Defendant No.2 has filed separate written statement, admitting the relationship between the parties, however, claimed that the second wife of Siddappa - Fakiravva had executed a relinquishment deed dated 15.03.1982 and further the suit is barred by limitation and as such, sought for dismissal of the suit.
7. Defendant No.3 filed a separate written statement, contending that, there was partition between the defendant Nos.1 and 2 on 10.09.2009 and thereafter item Nos.3 and 4 of the suit schedule properties fallen to the share of defendant No.2 and further defendant No.2 -8- NC: 2024:KHC-D:4840-DB RFA No. 100182 of 2016 C/W RFA No. 100147 of 2016 had sold item Nos.3 and 4 of the suit schedule properties in favour of the defendant No.3 and therefore, took up a contention that the plaintiffs are not entitled for the relief of partition in respect of the suit schedule properties.
8. The Trial Court, based on the pleadings on record, has formulated the following issues for its consideration:
"(1) Whether the plaintiffs prove that the partition deed dt.10-9-2009 is illegal and not binding on them?
(2) Whether the plaintiffs prove that the sale deed dt.9-10-2012 registered on 26-10-2012 and the sale deed dt.10-9-2012 registered on 10-9-2012 in respect of suit property executed by defendant No.2 in favour of defendant No.3 are illegal and not binding on them?
(3) Whether the plaintiffs prove that they and the defendants are the members of Hindu undivided joint family and further prove that the suit property is their joint family property? (4) Whether the plaintiffs are entitled for ½ share in the suit property?
(5) What order or decree?"-9-
NC: 2024:KHC-D:4840-DB RFA No. 100182 of 2016 C/W RFA No. 100147 of 2016
9. In order to establish their case, plaintiffs have examined one witness as P.W.1 and produced 27 documents and same were marked as Ex.P.1 to Ex.P.27. Defendants have examined two witnesses as D.W.1 and D.W.2 and got marked 17 documents and same were marked as Ex.D.1 to Ex.D.17.
10. The Trial Court, after considering the material on record, by its judgment and decree dated 18.03.2016, decreed the suit in-part, holding that, the plaintiff Nos.1 to 5 together are entitled for 1/3rd share in item Nos.1 to 6 of the suit schedule properties, however, rejected the claim made by the plaintiffs in respect of item Nos.7 and 8 of the suit schedule properties. Feeling aggrieved by the same, defendant Nos.1 and 2 have filed RFA No.100182/2016 and defendant No.3 has filed RFA No.100147/2016.
11. We have heard Sri. Sangram S. Kulkarni, learned counsel appearing for appellants; Sri. Shivaraj C. Bellakki, learned counsel appearing for respondent Nos.1
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NC: 2024:KHC-D:4840-DB RFA No. 100182 of 2016 C/W RFA No. 100147 of 2016 to 5 and Sri. Gourishankar Mot, learned counsel appearing for respondent No.6.
12. Sri. Sangram S. Kulkarni, learned counsel appearing for appellants in RFA No.100182/2016 contended that, the plaintiffs being the legal representatives of late Fakirappa, who is the son of the second wife of Siddappa and as such, contended that, the plaintiffs are not entitled for share in the suit schedule property. It is also contended by the learned counsel appearing for the appellants that late Fakiravva had executed relinquishment deed in favour of defendant Nos.1 and 2 and therefore, the plaintiffs are not entitled for share in the suit schedule properties and accordingly, he sought for interference of this Court.
13. Sri. Gourishankar Mot, learned counsel appearing for the appellants in RFA No.100147/2016 contended that, the defendant Nos.1 and 2 got the suit schedule properties as per the registered partition deed dated 10.09.2009 and thereafter the defendant No.2 has
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NC: 2024:KHC-D:4840-DB RFA No. 100182 of 2016 C/W RFA No. 100147 of 2016 sold item Nos.3 and 4 of the suit schedule properties in favour of the defendant No.3 and as such, he contended that, as the plaintiffs are the legal representatives of the second wife of late Siddappa, the plaintiffs are not entitle for share in the suit schedule properties.
14. Per contra, Sri. Shivaraj C. Bellakki, learned counsel appearing for the contesting respondents, sought to justify the impugned Judgment and decree passed by the trial Court and argued that the schedule properties are the self acquired properties of the Siddappa and therefore, the plaintiffs being legal representatives of late Fakirappa are entitle for share in the suit schedule properties and accordingly sought for dismissal of the appeals.
15. Having heard the learned counsel appearing for the parties and taking into consideration the grounds urged in the Memorandum of Appeal, the following points arise for our consideration:
(i) Whether, the Judgment and decree passed by the trial Court requires interference of this Court?
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NC: 2024:KHC-D:4840-DB RFA No. 100182 of 2016 C/W RFA No. 100147 of 2016
(ii) Whether the allotment of shares made by the trial Court requires interference of this Court?
(iii) what order?
16. Having taken note of the submission made by learned counsel appearing for the parties and in order to understand the relationship between the parties, the genealogical tree of the parties reads as under:
Siddappa (died on 12/1/2003) Kashavva Fakiravva Chanavva Girijavva Fakirappa Deft-1 Deft-2 (Died on 18/6/2008) Anasavva (Wife) Pltff-1 Basavaraj Iranna Nagaraj Akkamma Pltff-2 Pltff-3 Pltff-4 Pltff-5
17. It is evident from the genealogical tree referred to above would establish that, the original propositus Siddappa had two wives namely Kashavva and Fakiravva. Defendants are the children of Kashavva. Fakiravva had a
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NC: 2024:KHC-D:4840-DB RFA No. 100182 of 2016 C/W RFA No. 100147 of 2016 son-Fakirappa, who died on 18.06.2008 and plaintiff No.1 is the wife of Fakirappa and plaintiff Nos.2 to 5 are the children of plaintiff No.1 and late Fakirappa. Perusal of the pleadings on record would indicate that, there is no dispute with regard to the relationship between the parties. It is the claim of the plaintiffs that, the defendant Nos.1 and 2 have illegally sold the portion of the suit schedule properties in favour of the defendant No.3 without determining the shares of the plaintiffs and as such, sought for share in the suit schedule properties. Perusal of the evidence on record would indicate that, there is no dispute with regard to the fact that, suit schedule properties are the ancestral properties of late Siddappa and therefore, the children of Siddappa through his wives Kashavva and Fakiravva constitute a joint family, however, the plaintiff Nos.2 to 5 have to be considered as illegitimate children of late Siddappa through Fakiravva (second wife). In that view of the matter, following the declaration of law made by the Hon'ble Supreme Court in
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NC: 2024:KHC-D:4840-DB RFA No. 100182 of 2016 C/W RFA No. 100147 of 2016 the case of Revanasiddappa Vs. Mallikarun reported in 2023 10 SCC 1, wherein paragraph 81 reads as under:
"81. We now formulate our conclusions in the following terms:
81.1. In terms of sub-section (1) of Section 16, a child of a marriage which is null and void under Section 11 is statutorily conferred with legitimacy irrespective of whether: (i) such a child is born before or after the commencement of amending Act, 1976; (ii) a decree of nullity is granted in respect of that marriage under the Act and the marriage is held to be void otherwise than on a petition under the enactment;
81.2. In terms of sub-section (2) of Section 16 where a voidable marriage has been annulled by a decree of nullity under Section 12, a child 'begotten or conceived' before the decree has been made, is deemed to be their legitimate child notwithstanding the decree, if the child would have been legitimate to the parties to the marriage if a decree of dissolution had been passed instead of a decree of nullity;
81.3. While conferring legitimacy in terms of sub-
section (1) on a child born from a void marriage and under sub-section (2) to a child born from a voidable
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NC: 2024:KHC-D:4840-DB RFA No. 100182 of 2016 C/W RFA No. 100147 of 2016 marriage which has been annulled, the legislature has stipulated in sub-section (3) of Section 16 that such a child will have rights to or in the property of the parents and not in the property of any other person;
81.4. While construing the provisions of Section 3(j) of the HAS, 1956 including the proviso, the legitimacy which is conferred by Section 16 of the HMA, 1955 on a child born from a void or, as the case may be, voidable marriage has to be read into the provisions of the HAS, 1956. In other words, a child who is legitimate under sub-section (1) or sub-section (2) of Section 16 of the HMA would, for the purposes of Section 3(j) of the HAS, 1956, fall within the ambit of the explanation "related by legitimate kinship" and cannot be regarded as an "illegitimate child" for the purposes of the proviso;
81.5. Section 6 of the HAS, 1956 continues to recognise the institution of a joint Hindu family governed by the Mitakshara law and the concepts of a coparcener, the acquisition of an interest as a coparcener by birth and rights in coparcenary property. By the substitution of Section 6, equal rights have been granted to daughters, in the same manner as sons as indicated by sub-section (1) of Section 6;
81.6. Section 6 of the HAS, 1956 provides for the devolution of interest in coparcenary property. Prior to the substitution of Section 6 with effect from 9-9-2005 by the amending Act of 2005, Section 6 stipulated the devolution of interest in a Mitakshara coparcenary property of a male Hindu by survivorship on the surviving
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NC: 2024:KHC-D:4840-DB RFA No. 100182 of 2016 C/W RFA No. 100147 of 2016 members of the coparcenary. The exception to devolution by survivorship was where the deceased had left surviving a female relative specified in Class I of the Schedule or a male relative in Class I claiming through a female relative, in which event the interest of the deceased in a Mitakshara coparcenary property would devolve by testamentary or intestate succession and not by survivorship. In terms of sub-section (3) of Section 6 as amended, on a Hindu dying after the commencement of the amending Act of 2005 his interest in the property of a Joint Hindu family governed by the Mitakshara law will devolve by testamentary or intestate succession, as the case may be, under the enactment and not by survivorship. As a consequence of the substitution of Section 6, the rule of devolution by testamentary or intestate succession of the interest of a deceased Hindu in the property of a Joint Hindu family governed by Mitakshara law has been made the norm;
81.7. Section 8 of the HAS, 1956 provides general rules of succession for the devolution of the property of a male Hindu dying intestate. Section 10 provides for the distribution of the property among heirs of Class I of the Schedule. Section 15 stipulates the general rules of succession in the case of female Hindus dying intestate. Section 16 provides for the order of succession and the distribution among heirs of a female Hindu;
81.8. While providing for the devolution of the interest of a Hindu in the property of a joint Hindu family governed by Mitakshara law, dying after the
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NC: 2024:KHC-D:4840-DB RFA No. 100182 of 2016 C/W RFA No. 100147 of 2016 commencement of the amending Act of 2005 by testamentary or intestate succession, Section 6(3) lays down a legal fiction, namely that "the coparcenary property shall be deemed to have been divided as if a partition had taken place". According to the Explanation, the interest of a Hindu Mitakshara coparcener is deemed to be the share in the property that would have been allotted to him if a partition of the property has taken place immediately before his death irrespective of whether or not he is entitled to claim partition;
81.9. For the purpose of ascertaining the interest of a deceased Hindu Mitakshara coparcener, the law mandates the assumption of a state of affairs immediately prior to the death of the coparcener namely, a partition of the coparcenary property between the deceased and other members of the coparcenary. Once the share of the deceased in property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs including the children who have been conferred with legitimacy under Section 16 of the HMA, 1955, will be entitled to their share in the property which would have been allotted to the deceased upon the notional partition, if it had taken place; and 81.10. The provisions of the HAS, 1956 have to be harmonised with the mandate in Section 16(3) of the HMA, 1955 which indicates that a child who is conferred with legitimacy under sub-sections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents. The property of the parent, where the
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NC: 2024:KHC-D:4840-DB RFA No. 100182 of 2016 C/W RFA No. 100147 of 2016 parent had an interest in the property of a joint Hindu family governed under the Mitakshara law has to be ascertained in terms of the Explanation to sub-section (3), as interpreted above."
18. Applying the aforementioned principle to the case on hand, plaintiff Nos.2 to 5 are the children of Fakiravva (second wife) and therefore, plaintiff Nos.2 to 5 are entitle for the share of late Siddappa in the joint family consisting of the said Siddappa along with defendant Nos.1 and 2, who are the children through his first wife. In that view of the matter, defendant Nos.1 and 2 and late Siddappa are entitled for 1/3rd share each in the suit schedule properties. The plaintiff Nos.2 to 5 being the grand-children of Siddappa through his second wife Fakiravva are entitled for share of Siddappa along with the defendants i.e. defendant No.1, defendant No.2 and plaintiff Nos.2 to 5 together are entitled for 1/9th share in the suit schedule property. Accordingly, the defendant No.1 and 2 are entitled for 4/9th share each in the suit schedule properties and plaintiff Nos.2 to 5 together are entitled for 1/9th share in the suit schedule properties.
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NC: 2024:KHC-D:4840-DB RFA No. 100182 of 2016 C/W RFA No. 100147 of 2016 Though the learned counsel appearing for the respondents submitted that, portion of the suit schedule property is the self acquired property of Siddappa, however, no material has been produced before the trial Court to distinguish the property, and as such, the said arguments advanced by the learned counsel appearing for the respondents, cannot be accepted.
19. Insofar as, RFA No.100147/2016, it is the grievance of the defendant No.3 that, he has purchased the portion of the suit schedule properties through registered sale deeds from the defendant Nos.1 and 2 and therefore, the defendant No.3 has to work out his remedy against the defendant Nos.1 and 2 insofar as the acquisition of the property in terms of the registered sale deeds dated 09.10.2012 (Ex.P.8) and dated 09.10.2012 (Ex.P.9). In that view of the matter, the impugned Judgment and decree passed by the trial Court requires to be interfered with in view of the declaration of law made by the Hon'ble Supreme Court in the case of
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NC: 2024:KHC-D:4840-DB RFA No. 100182 of 2016 C/W RFA No. 100147 of 2016 Revanasiddappa (supra) and accordingly, the points for consideration referred to above answered in favour of the defendants. Accordingly, we find force in the submission made by the learned counsel appearing for the appellants, accordingly we pas the following:
ORDER
1) Regular First Appeals are allowed;
2) Judgment and decree dated 18.03.2016 passed in Original Suit No.298/2014 on the file of the II Addl. Senior Civil Judge, Hubballi is set aside; and 3) It is held that, the defendant Nos.1 and 2 are entitled for 4/9th share each in the suit schedule property and plaintiff Nos.2 to 5 together are entitled for 1/9th share in the suit schedule property.
Sd/-
JUDGE Sd/-
JUDGE SVH List No.: 1 Sl No.: 28