ARUNA Vs. MADHAVVA

JUDGEMENT

(1.) THIS appeal by the defendants is directed against the judgment and decree passed by the learned Additional civil Judge (Sr. Dn.), Hubli, in R. A. No. 120/ 1993, dated 16-12-2002, allowing the appeal and modifying the judgement and decree passed by the learned Munsiff and jmfc, Kundagol, in O. S. No. 165/1989 dated 28-8-1993.

(2.) THE brief facts of the case with reference to rank of the parties before the trial court are as follows :-The schedule properties comprise of 4 landed properties and 2 house properties belonging to Bharamappa who died on 18-8-63, leaving behind his wife Madhawa (the original plaintiff), daughters viz. , shankarawa and Neelawa, defendant Nos. 2 and 3 respectively and a son Mahaveer who died on 13-4-86, leaving behind his wife (defendant No. 1) and his mother Madhawa, and Madhawa died on 10-10-94. The trial court after considering the entire material on record held that the plaintiff is entitled to 5/12th share in the schedule properties and negatived the contention of the defendants and decreed the suit accordingly. The trial Court held that the plaintiff would be entitled to her own 1/3rd share in the notional partition and as on the death of bharamappa who died on 18-8-63, the plaintiff and defendants 1 to 3 would be entitled to 1/12th share each and, therefore, the plaintiff would be entitled to 5/ 12th share in the suit properties i. e. , the plaintiff is entitled to her own 1/3rd share in the notional partition and 1/4th share in the share of Bharamappa i. e. , 1 /12th share and accordingly, entitled to 5/12th share. Being aggrieved by the said judgment and decree, the plaintiff filed Regular Appeal. The defendants did not chose to file an appeal. During the pendency of the appeal before the first appellate Court, Madhawa (the original plaintiff) died and an application was filed by Sidhartha alias Anilkumar to come on record as a legal representative of madhawa/the appellant claiming that he is her adopted son and that Madhawa had also executed a Will in his favour and, therefore, he has succeeded to the entire share of property of Madhawa. An application was also filed for leading additional evidence. The application seeking permission to come on record as a legal representative was allowed and the applicant was permitted to lead additional evidence and thereafter, PWs. 4 to 7 were examined and D. W. 3 was also examined and Exhibits P18 to P27 were got marked during the evidence recorded by the first appellate Court. The first appellate court" by its judgment dated 16-12-2002 held that the first respondent is not entitled to inherit the suit property as she remarried and in view of provisions of Section 2 of the Hindu Widow Remarriage Act, 1856, she is not entitled to succeed to the property and the plaintiff is entitled to 10/ 12th share and accordingly, held that the legal representative would succeed to the said 10/ 12th share to which the original plaintiff is entitled and accordingly, allowed the appeal by modifying the judgment and award passed by the trial Court. Being aggrieved by the said judgment and decree passed by the first appellate Court, this appeal is filed.

(3.) THIS appeal was admitted on 9-6-2004 for consideration of the following substantial questions of law :-