BASAVVA Vs. BHAGAWWA

JUDGEMENT

(1.) PRESENT appeal is filed under Section 100 of CPC by defendants 1 and 2 of an original suit bearing O.S. No. 161/2008, which was pending on the file of Court of Principal Civil Judge, Mudhol of Bagalkot District. Respondents 1 and 2 were the plaintiffs and respondent No. 3 is the defendant No. 3 in the said suit. Parties will be referred to as plaintiffs and defendants 1 to 3 as per their ranking in the trial Court. Suit filed for the reliefs of partition and separate possession by the plaintiffs being the wife and child of the deceased Hanamanth Byakod came to be dismissed vide a considered judgment dated 20.07.2010. The appellants did not appear before the trial Court and hence they were placed ex -parte. Third defendant alone filed written statement stating that plaintiffs are not entitled for any share since 1st plaintiff is not the legally wedded wife of her son Hanamanth Byakod. Against the said judgment and decree dated 26.07.2010, Regular Appeal was filed under Section 96 of CPC in R.A. No. 17/2010 before the Court of Senior Civil Judge, Mudhol. Several grounds had been urged in the appeal memo inclusive of the one relating to inability of defendants 1 and 2 appearing before the Court and their inability to file the written statement. Ultimately the appeal has been allowed by setting aside the judgment and decree of the trial Court passed in O.S. No. 161/2008. Consequently, suit is decreed partly granting 1/4 share to the second plaintiff on the ground that there was marriage between the 1st plaintiff and deceased Hanamanth Byakod, though it was a second marriage.

(2.) SEVERAL grounds have been urged in the appeal memo, apart from proposing few questions of law to be considered as substantial questions of law. This Court has admitted the matter -by framing the following substantial questions of law on 09.01.2004:

(3.) QN . No. 1: Admittedly third defendant is the mother of deceased Hanamant Byakod. The first defendant Basavva - the first appellant herein is the legally wedded wife of said Hanamant Byakod. Second defendant is the son of first defendant born out of her legal wedlock with deceased Hanamant Byakod. The 1st respondent - 1st plaintiff claims herself to be the second wife of Hanamant Byakod. Second plaintiff Kumar Shivanand is the son of 1st plaintiff, said to have been born out of the legal wedlock of the 1st plaintiff with Hanamant Byakod.