Gadeppa vs Gademma and Others

B. Sreenivas Gowda, J—Appeal is by the first defendant in the suit challenging the judgment and decree passed by the Trial Court in decreeing the suit of the plaintiff.

I have heard the learned counsel appearing for the parties and perused the judgment and decree passed by the Trial Court.

For the sake of convenience, the parties are referred to as they are referred to in the suit before the Trial Court.

Case of the plaintiff is defendant Nos. 1 to 3 are sons of one Mallappa S/o. Amarappa and she is the daughter of first defendant-Gadeppa. The defendants after the death of their father Amarappa got the properties divided and suit properties were fallen to the share of her father i.e., first defendant. Since katha of item No. 3 of the suit property is standing in. the joint names of defendant Nos. 1 to 3, defendant Nos. 2 and 3 are made as formal parties to the suit. Plaintiffs mother Gangamma is the legally wedded wife of the first defendant. Their marriage was taken place 23-24 years ago at Shri Ramalingeshwara temple, Chittapur village, Lingsuguru Taluk as per the customs prevailing in their community. She was born to them one or two years after their marriage. After their marriage, Gangamma lived with her husband i.e., first defendant about 2-3 years. Thereafter, first defendant deserted her from his company and married one Laxmibai and has three children from the said Laxmibai and they are illegitimate children of the first defendant. The plaintiff being the legitimate daughter of Gangamma and the first defendant has become a coparcener of the family and she married her mother''s elder brother''s son Hanamantha. The said marriage was celebrated by the first defendant himself. The suit properties are in possession of plaintiff and the first defendant and no partition has been taken place between the plaintiff and the first defendant. Her mother is suffering from ill-health and finding difficulty to lead her life. The first defendant refused and neglected to maintain her mother and there are differences between her parents. When she demanded the first defendant to give her legitimate share in the suit scheduled properties in the presence of elders of the village, he refused to effect partition and therefore, she has brought the suit for partition and separate possession of her share in the suit properties.

The first defendant after entering appearance in the suit filed written statement inter alia contending that the plaintiff is not the daughter of the first defendant. She is no way related to the first defendant. Her mother is defendants'' father''s sister''s daughter. She has brought the suit at the insistence of her mother. The plaintiffs mother Gangamma is not the legally wedded wife of first defendant and that plaintiff cannot contend that she is the daughter of the first defendant and she has no right to ask for partition in the suit properties. With this, they prayed for dismissal of the suit.

The Trial Court based on the rival contention of the parties has framed following issues:

i. Whether the plaintiff proves that she is the daughter of defendant No. 1?

ii. Whether the plaintiff is entitle for relief of partition and separate possession as prayed for?

iii. What order or decree?

The plaintiff in support of her case has examined herself as P.W. 1, her mother as P.W. 2 and one Sahadevappa as P.W. 3 and has produced certain documents which were marked as Exs. P1 to P4. On behalf of the defendants, the first defendant was examined as D.W. 1 and Smt. Laxmibai and Siddappa Kotegouda were examined as P.Ws. 2 and 3. No documents were produced on their behalf.

The Trial Court on consideration of the oral and documentary evidence on record has held that the plaintiff has proved that she is the daughter of the first defendant and she is entitled for partition of her half share in the suit properties and decreed the suit accordingly.

Aggrieved by the said judgment and decree of the Trial Court, the first defendant has preferred this appeal.

The plaintiff examined as P.W. 1 in her evidence has reiterated the averments made in the plaint. P.W. 2 - Gangamma has stated in her evidence that the first defendant is her husband. Defendant Nos. 2 and 3 are her in-laws. Defendants are the children of her father-in-law by name Mallappa. The said Mallappa passed away 10-11 years ago. Her marriage with the first defendant was taken place 24-25 years ago at Shri Ramalingeshwara Temple of Chittapur Village as per the customs prevailing in their community The plaintiff was born to her from the first defendant one or two years after her marriage with the first defendant. After the marriage, she lived 2-3 years with the first defendant. During her stay, the first defendant used to beat her, treat her cruelly and finally deserted her from his company. Since then she has been living with her daughter in her parental home. Her daughter-plaintiff studied up to 4th standard in Primary School at Karadakalli village. The first defendant after deserting her has married one Laxmibai and has got three children from her. The plaintiff was given in marriage to her brother''s son Hanamantha. Her marriage was celebrated by the first defendant only.

P.W. 3 - Sahadevappa in his evidence has stated that the plaintiff is the daughter of his sister Gangamma and Gangamma is the wife of first defendant. Defendant Nos. 2 and 3 are the in-law of her sister Gangamma. Father of the defendants by name Mallappa expired 10-11 years ago. Her sister Gangamma married to first defendant 24-25 years ago at Shri Ramalingeshwara Temple of Chittapur village as per the customs prevailing in their community and thereafter plaintiff was born to them. Thereafter, the first defendant has deserted his sister Gangamma. Since then, his sister Gangamma has been residing with him along with her daughter-plaintiff. The plaintiff studied upto 4th standard at primary school at Karadakalli village. After deserting his sister, the first defendant married one Laxmibai and has got three children from her. The plaintiff has married his son Hanamantha and the first defendant only celebrated the marriage of the plaintiff with his son.

The evidence of P.Ws. 2 and 3 would show that they have fully supported the case of the plaintiff. The first defendant who is examined as D.W. 1 has reiterated what is stated in the written statement. In Ex. P4 - Transfer Certificate pertaining to the plaintiff, the plaintiff is mentioned as daughter of the first defendant. The Trial Court considering the evidence of P.Ws. 1 to 3 and Ex. P4 was justified in holding that plaintiff has proved issue No. 1 that she is the daughter of the first defendant.

It is not the case of the first defendant that defendants are not the children of Mallappa. It is also not his case that the suit properties were not fallen to his share in the partition effected between the defendants. When it is proved that plaintiff is the legitimate daughter of Gangamma and the first defendant and the suit properties were fallen to the share of the first defendant in the partition effected between him and his brothers, naturally, plaintiff is entitled for half share in the suit properties. Considering this, the Trial Court was justified in holding that plaintiff has proved that she is entitled for partition and separate possession of her half share in the suit properties.

I have carefully gone through the judgment and decree passed by the Trial Court and do not find any illegality or infirmity warranting my interference. Hence, the appeal is liable to be dismissed.

Accordingly, the appeal is dismissed as devoid of merit.

No order as to costs.

In view of disposal of the appeal, I.A. No. 1/2015 does not survive for consideration and accordingly, it is rejected.