- 1 - RSA No. 475 of 2010 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2026 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 475 OF 2010 (PAR) BETWEEN: 1. SRI. BHOJEGOWDA AGED ABOUT 56 YEARS S/O LATE JANNEGOWDA @ DYAVEGOWDA R/O GANGIGERE VILLAGE BUKINAKERE HOBLI, K.R.PET TALUK-571812. …APPELLANT (BY SRI. M.B.RAJASHEKAR, ADVOCATE) AND: 1. G.B. MANIYAMMA AGED ABOUT 33 YEARS W/O P.K.MANJUNATH R/O. PURA VILLAGE, AKKI HEBBALU HOBLI K.R.PET TALUK-571812. SINCE DECEASED BY HER LRS. 1(a) ABHILASH S/O P.K.MANJUNATH AGED ABOUT 22 YEARS R/O. PURA VILLAGE, AKKI HEBBALU HOBLI K.R.PET TALUK, MANDYA DISTRICT. 1(b) KEERTHIRAJ S/O P.K.MANJUNATH AGED ABOUT 20 YEARS R/O. PURA VILLAGE, Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - RSA No. 475 of 2010 AKKI HEBBALU HOBLI K.R.PET TALUK, MANDYA DISTRICT. 2. G.B. RATHNA AGED ABOUT 31 YEARS W/O SWAMYGOWDA R/O HOSANAGARA VILLAGE K.R.NAGAR TALUK-571602. 3. G.D. ROOPA AGED ABOUT 27 YEARS W/O K.K.RAGHUVIR KUMAR R/AT HOSURU KALLAHALLI VILLAGE K.R.NAGAR TALUK-571812. …RESPONDENTS (BY SRI. K.R.LINGARAJU, ADVOCATE FOR R2 & R3; R1(a) AND R1(b) - SERVED) THIS RSA IS FILED UNDER SECTION 100(2) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 28.7.2009 PASSED IN R.A.NO.5/2009 ON THE FILE OF THE CIVIL JUDGE (SR.DN) AND JMFC, K.R.PET, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 14.10.2008 PASSED IN O.S.NO.97/2003 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC, K.R.PET. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 10.07.2026 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH - 3 - RSA No. 475 of 2010 CAV JUDGMENT Heard learned counsel appearing for the appellant and learned counsel appearing for the respondent Nos.2 and 3. 2. This second appeal is filed against the divergent finding questioning grant of 1/4th share in item Nos.1 and 2 of the suit schedule properties by the First Appellate Court as against the dismissal of the suit in O.S.No.97/2003. 3. The factual matrix of case of the plaintiffs while seeking the relief of partition before the Trial Court in O.S.No.97/2003 in respect of item Nos.1 and 2 of the suit schedule properties is that defendant is the father of plaintiff Nos.1 to 3 and they were living in an undivided family. The marriage of plaintiff No.1 was performed on 06.03.1995, plaintiff No.2 on 28.04.1999 and plaintiff No.3 on 23.02.2003. The defendant had another son by name Jagadeesha, who is no more. The plaintiffs and defendants are members of undivided family and suit schedule properties are ancestral properties of the plaintiffs and defendant and there is no partition between the family members and they are entitled for 1/4th share in item Nos.1 and 2 of the suit schedule properties. - 4 - RSA No. 475 of 2010 4. The defendant appeared and filed written statement denying the contents of the plaint and also denied that suit schedule properties are not ancestral properties of plaintiffs and defendant and claims that the suit schedule properties are his self-acquired properties. It is also his case that he had spent amount towards performing the marriage of their daughters and also borrowed amount from different persons to perform their marriage. 5. The Trial Court based on the pleadings of the parties, framed the following issues for consideration which reads as hereunder: “1. Whether the plaintiffs prove that the suit schedule properties are joint family and ancestral properties of themselves and defendant and they are the joint family members as contended? 2. Whether the defendant proves that the suit schedule properties are his self acquired properties? 3. Whether the defendant proves that the Court fee paid is insufficient? 4. Whether the plaintiffs prove that they are entitled for the relief of partition and separate - 5 - RSA No. 475 of 2010 possession of the suit schedule properties as prayed for? 5. What order or decree?”. 6. The plaintiff No.1 examined herself as P.W.1 and got marked the documents as Exs.P1 to P5. The defendant examined himself as D.W.1 and five other witnesses as D.W.2 to D.W.6 and got marked the documents as Exs.D1 to D17. 7. The Trial Court having considered both oral and documentary evidence placed on record comes to the conclusion that plaintiffs failed to prove that suit schedule properties are joint family and ancestral properties of themselves and defendant. However, the Trial Court comes to the conclusion that suit schedule properties are self-acquired properties of the defendant and answered issue Nos.3 and 4 as ‘negative’. 8. Being aggrieved by the said judgment and decree of dismissal of the suit, the plaintiffs filed an appeal before the First Appellate Court in R.A.No.5/2009. The First Appellate Court having reassessed the material available on record, framed the following points for consideration, which reads as hereunder: - 6 - RSA No. 475 of 2010 “1. Whether the Trial Court not property appreciates the oral and documentary evidence available on record? 2 Whether the judgment and decree of the Trial Court calls for any modification at the hands of this Court? 3. What order?” 9. The First Appellate Court having taken note of evidence of D.W.1 comes to the conclusion that plaintiffs are entitled for the relief of partition of 1/4th share each in respect of item Nos.1 and 2 of the suit schedule properties. 10. The main contention of learned counsel appearing for the appellant in his argument is that property came to the defendant through his paternal uncle, since he is a foster son. It is contented that item No.2 is his self-acquired property and Ex.D14 is clear that name of plaintiffs’ grand-father was Dyavegowda and also contend that plaintiffs have not proved that suit schedule properties are joint family properties of themselves and defendant. It is contended by the learned counsel that First Appellate Court not properly appreciated the evidence and no material is placed before the Court that the properties are joint family and ancestral properties. The counsel - 7 - RSA No. 475 of 2010 also contend that there is no prayer for declaration to declare that suit schedule properties are joint family properties. 11. Learned counsel appearing for the appellant in support of his argument relied upon the judgment of this Court in GANAPATI AND OTHERS vs. SMT. SUKRI passed in R.S.A.No.485/2002 dated 11.03.2008 and brought to notice of this Court paragraph No.21, wherein it is observed that appreciation of evidence is definitely not a pure question of law, but a question of law arises in the manner in which evidence is recorded or if is an improper appreciation of evidence, it is a question of law calling for interference even in second appeal, as has been repeatedly held by the Supreme Court itself. 12. The counsel also relied upon the judgment of the Apex Court in AKELLA LALITHA vs. KONDA HANUMANTHA RAO AND ANOTHER reported in 2022 SCC ONLINE SC 929 and brought to notice of this Court paragraph No.16, wherein issue No.2 was discussed and is held that it is settled law that relief not found on pleadings should not be granted. If a Court considers or grants a relief for which no prayer or pleading was made depriving a respondent of an opportunity to oppose or resist such relief, it would lead to miscarriage of justice. - 8 - RSA No. 475 of 2010 13. Per contra, learned counsel appearing for respondent Nos.2 and 3 would vehemently contend that document of Ex.P1 is very clear that there was partition in the year 1978 between the brothers i.e., the defendant and his brothers and to that effect, M.R.No.114/78-79 came into existence. The counsel also vehemently contend that though it is contented by the defendant that properties are self-acquired properties and not the joint family properties and in order to substantiate the same, nothing is placed on record. It is contented that properties are given to the defendant as a foster son. But, there is no such pleading in the written statement and the claim made is that properties are self-acquired properties and for the first time in the evidence, the same is pleaded. But, the Trial Court committed an error in accepting the evidence of D.W.1 and the First Appellate Court re-appreciated both oral and documentary evidence and granted 1/4th share each in favour of the plaintiffs. The D.W.6 also categorically admitted that the defendant has not produced any document to show that he has given any share in favour of his foster son and no document for having given the property to the foster son and the same is categorically admitted by D.W.6. The counsel also would submit that no statement before the revenue authority - 9 - RSA No. 475 of 2010 also for having given the property. Hence, the First Appellate Court rightly held that suit schedule properties are joint family properties. 14. In reply to this argument of learned counsel appearing for respondent Nos.2 and 3, learned counsel appearing for appellant would submit that it is the duty of the plaintiffs to prove that suit schedule properties are joint family properties and except stating that suit schedule properties are ancestral properties, not stated as to how their father got the properties. 15. Having heard learned counsel appearing for the appellant and learned counsel appearing for respondent Nos.2 and 3, this Court has to take note of substantial questions of law framed by this Court while admitting the second appeal which reads as hereunder: “(i) Whether the Lower Appellate Court has erred in appreciating the evidence of Exs.P1 and P2 and in arriving at a conclusion that the plaintiffs are entitled to 1/4th share in the suit schedule item Nos.1 and 2 properties? (ii) Whether the Lower Appellate Court has proceeded to pronounce the judgment - 10 - RSA No. 475 of 2010 without condoning the delay said to have been caused in preferring the appeal and if so, whether the judgment sustains?” Point No.(ii): 16. Having heard learned counsel appearing for the appellant and learned counsel appearing for respondent Nos.2 and 3 and also considering the material available on record, the Trial Court comes to the conclusion that plaintiffs have not proved the fact that item Nos.1 and 2 of the suit schedule properties are ancestral properties. On the other hand, it has come to the conclusion that it is self-acquired properties of the defendant. So also in respect of item No.2 is concerned, the Trial Court comes to the conclusion that property not stands in the name of the defendant and stands in the name of paternal uncle of defendant. Hence, question of granting share in both the properties does not arise. However, the First Appellate Court on re-appreciation comes to the conclusion that Exs.P1 and P2 are the material documents and plaintiffs are entitled for 1/4th share each in suit schedule item Nos.1 and 2 of the properties. The other substantial question of law which was framed by this Court is that without condoning the delay said to - 11 - RSA No. 475 of 2010 have been caused in preferring the regular appeal, whether the judgment of the First Appellate Court sustains in the eye of law. 17. Having perused the judgment of the First Appellate Court, it is not found that appeal was filed with delay and no point was framed for consideration with regard to delay is concerned and in order to substantiate that there was delay in filing the appeal in R.A.No.5/2009, learned counsel appearing for the appellant also not produced any material before this Court. However, on perusal of the records of the First Appellate Court, there is reference in the order sheet that an application is filed under Section 5 of the Limitation Act. In support of the application, an affidavit is filed, wherein it is stated that judgment was passed on 14.10.2008, copy was applied on the very next day on 15.10.2008 and the same was ready on 12.11.2008 which was collected on 12.12.2008. But, delay date is not specifically mentioned, except filing an application. However, the order sheet discloses that application for condonation of delay was filed on 28.01.2009. The order sheet does not reflect anything about condonation of delay which is only on technicality and the Court has to take note of substantial justice and only on that ground, the Court cannot set aside the judgment of the First Appellate Court and even in - 12 - RSA No. 475 of 2010 the order sheet, not stated about consideration of I.A.No.1 and immediately after the records are received, posted the case for arguments on main. Though, the First Appellate Court not considered the delay application, the same will not come in the way of consideration of this second appeal only on the ground of technicality and substantial justice must be provided. Hence, substantial question of law No.(i) framed with regard to delay caused said to have been caused in preferring the regular appeal is answered accordingly. Point No.(ii): 18. Now this Court has to consider substantial question of law No.(ii) whether the Lower Appellate Court committed an error in granting 1/4th share in favour of the plaintiffs in coming to the conclusion that suit schedule item Nos.1 and 2 properties are ancestral properties. Having perused the material on record, it is the specific case of the plaintiffs that suit schedule properties are ancestral properties which is pleaded in paragraph No.3 of the plaint that plaintiffs and defendant are the members of the joint family and defendant is the karta of the family and he was looking after the family affairs and suit schedule properties are ancestral properties and defendant was - 13 - RSA No. 475 of 2010 misusing the income of the suit schedule properties for his bad vices and therefore, sought for 1/4th share. Hence, the first contention that plaintiffs have not made specific prayer in the plaint and judgment relied upon by learned counsel appearing for the appellant in Akella Lalitha’s case referred supra referring paragraph No.16 will not come to the aid of the appellant and there is no dispute with regard to the principles laid down in the judgment of this Court that if any perversity in second appeal also, the Court can exercise its powers. 19. Now, the Court has to take note of pleadings of the parties. I have already pointed out that paragraph No.3 of the plaint is very specific with regard to suit item Nos.1 and 2 are ancestral properties of the defendant. But, the defendant in his written statement has categorically denied that suit schedule properties are not ancestral properties and in paragraph No.2, it is contended that he was the karta. But, specific defence was taken that suit schedule properties are not the ancestral joint family properties and the same are his self-acquired properties. The Court has to take note of the evidence available on record, since the factual finding is in dispute with regard to whether the properties are ancestral properties or self-acquired properties and there is a divergent finding on facts which is in issue. - 14 - RSA No. 475 of 2010 20. P.W.1 reiterated her averments in the evidence and categorically deposed that one item of property is the suit schedule property, but actually there are two items of the suit schedule properties and claim that father had sold other items of the properties and also admitted that immediately after marriage of younger sister, case was filed. When suggestion was made that father had availed loan and performed the marriage, the same was denied. However, admitted that being a father, he has done his duty. It is also admitted by P.W.1 that if wetland is given to her husband according to the assurance given at the time of marriage and she should not have filed the suit and only relies upon the document of Ex.P1-RTC. On perusal of the document Ex.P1-RTC, the same stands in the name of defendant and there is reference of M.R.No.114/78-79. The other documents are only marriage invitation of three sisters and no other documents are produced to show that properties are ancestral properties. 21. On the other hand, the defendant was examined as D.W.1. He reiterates the contents of written statement in his chief evidence. But, he was subjected to cross-examination. In the cross-examination, when the suggestion was made that suit schedule properties are his ancestral properties, he claims that - 15 - RSA No. 475 of 2010 he had purchased certain properties while doing his business and also his uncle gave some of the properties. But, not specifically denied that suit schedule properties are not ancestral properties, except claiming that he had purchased other properties. But, categorically admits that for having purchased the property, he has not produced any document. However, in respect of item No.1 is concerned, he has given categorical admission that in Sy.No.130/B, 2 acres 11 guntas of land came to him through his father and his uncle and claims that in Sy.No.130, 14 guntas of land was purchased out of his own income. Hence it is very clear that item No.1 of the properties was derived from his father. 22. It is also important to note that in the written statement itself, it is clearly mentioned that, if the plaintiffs are entitled for share in the suit schedule properties, they are liable to pay liabilities as well. Hence, it is clear that in view of admission on the part of D.W.1 in his evidence, the same is an ancestral property. Ex.P1-RTC which is also marked clearly discloses that in column No.9, nature of acquisition of property, it is mentioned that Bhojegowda, S/o. Janegowda is the grand- father of the plaintiffs and Bhojegowda is defendant No.1, who is the father of the plaintiffs and also there was reference of - 16 - RSA No. 475 of 2010 M.R.No.114/78-79 and though not produced the said M.R., but, in Column No.10, specifically mentioned M.R.No.114/78-79 and also there is a clear admission on the part of D.W.1 that they got divided the property along with their brothers. When such being the case, in respect of item No.1 is concerned, when the property stands in the name of the defendant, the First Appellate Court has not committed any error. But, while reversing the finding of the Trial Court, the First Appellate Court taken note of Ex.P2. But, Ex.P2-RTC is in respect of item No.2 i.e., Sy.No.130/4. However, in Column No.9, the name is mentioned as Dyavegowda and in Column No.10, it is mentioned as ancestral property and Dyavegowda is none other than paternal uncle of the defendant and he is also examined before the Trial Court as witness, wherein he says that he gave the said property to the defendant. But, in order to substantiate that this property is an ancestral property and the same came to the defendant from his father, nothing is placed on record and mere contention that these two items of the properties are ancestral properties is not enough. But, in respect of item No.1 is concerned, the name of defendant is mentioned and in column No.10, it is mentioned that the same came to him through M.R.No.114/78-79 which reflects that there was - 17 - RSA No. 475 of 2010 partition and the same is also admitted by D.W.1 in his cross- examination. Hence, there is no need to place any document to show that the same is an ancestral property and when there is a clear admission under Section 58 of the Evidence Act, the admitted fact need not be proved. 23. No doubt, the defendant took up several defences for having availed loan and performed the marriage and relied upon Exhibit ‘D’ series and also examined witnesses D.W.2 to D.W.6 for having availed loan, the material discloses that he had avoided loan and repaid the same. Hence, it is clear that when the daughters claim share, they are also bound for assets and liabilities in respect of properties of the father. But, no doubt the, the counsel relied upon the document of pronote and other documents, all those documents cannot be considered. But, if any loan is pending in the bank, the plaintiffs are also bound to pay the liabilities of the father, who had availed the loan from the bank. Though, it is contented that he had availed loan and used the same for his bad vices, nothing is placed on record regarding his bad vices. The First Appellate Court also comes to the conclusion while considering the evidence of D.W.4 to D.W.6 that they are relative and interested witnesses i.e., brother and paternal uncle, who are - 18 - RSA No. 475 of 2010 examined before the Trial Court. Though it is contended by learned counsel appearing for the appellant in his argument that properties belong to his paternal uncle Dyavegowda and the same was granted to him and the same is his self-acquired property, in order to substantiate that the same was granted to his uncle, no documents are placed, except Ex.P2, which stands in the name of said Dyavegowda. No doubt, loan notice was issued in terms of Exs.D1, D2 and D3, Ex.D4 is the document which shows the balance amount payable to the bank, Ex.D5 is the loan application, Ex.D9 is loan paper pertaining to Vijaya Bank and these are the loans availed from the bank. But, other documents from Exs.D10 onwards are private loans and the same cannot be considered as liabilities of the daughters. When the document of Ex.P1 is in respect of property of the defendant and though, item No.2 of the property to the extent of 15 guntas stands in the name of Bhojegowda, S/o. Janegowda in terms of Ex.D16 i.e., based on M.R.No.7/88- 89, but Ex.D17 is very clear with regard to M.R.No.114/78-79. 24. Hence, it is clear that item No.1 of the suit schedule properties is an ancestral property which came to the father of the plaintiffs and not item No.2 of the suit schedule properties. Hence, the First Appellate Court while re-appreciating the - 19 - RSA No. 475 of 2010 evidence failed to take note of document of Ex.D16 and Ex.D15 which discloses that property stands in the name Dyavegowda. Even, the RTC which is marked as Ex.P2 stands in the name of Dyavegowda. Hence, the First Appellate Court committed an error in reversing the finding in respect of item No.2 is concerned. But, in respect of item No.1 of the suit schedule properties, in view of clear admission on the part of D.W.1, the First Appellate Court has not committed any error and the same is based on material available on record and not found any perversity in the finding of the First Appellate Court. But, the Trial Court committed an error in coming to the conclusion that item No.1 is also a self-acquired property without any documentary proof, when it is categorically admitted by D.W.1 that in order to show that the same is an self-acquired property, he has not produced any document. Even the other contention that item No.1 also came to the defendant through his paternal uncle cannot be accepted and paternal uncle, who has been examined before the Court also categorically admits that for having given share to the defendant as his foster son, no document is available with him. Under the circumstances, I answer substantial question of law No.(i) as ‘partly affirmative and partly negative’. - 20 - RSA No. 475 of 2010 25. In view of the discussion made above, I pass the following: ORDER (i) The regular second appeal is allowed in part. (ii) The judgment and decree of the First Appellate Court passed in R.A.No.5/2009 dated 28.07.2009 is set aside in respect of item No.2 of the suit schedule properties. (iii) The judgment and decree of the First Appellate Court in respect of item No.1 of the suit schedule properties is confirmed that plaintiffs are entitled for their 1/4th share each with the liabilities of payment of loan amount to the banks, if any i.e., Vijaya Bank and PLD Bank, if it is prior to filing of the suit and not subsequent to the suit. Sd/- (H.P.SANDESH) JUDGE ST