- 1 - NC: 2025:KHC-K:2271 RSA No. 200368 of 2016 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 8TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO.200368 OF 2016 (PAR) BETWEEN: 1. SHANAMMA D/O LACHMANNA AGE: 64 YEARS, OCC: AGRICULTURE, R/O: BENAKANAHALLI, TQ: SEDAM, DIST: KALABURAGI – 585 222. 2. MALLAMMA D/O LACHMANNA AGE: 44 YEARS, OCC: AGRICULTURE, R/O: BENAKANAHALLI, TQ: SEDAM, DIST: KALABURAGI – 585 222. 3. DEVAKI D/O LACHMANNA AGE: 39 YEARS, OCC: AGRICULTURE, R/O: BENAKANAHALLI, TQ: SEDAM, DIST: KALABURAGI – 585 222. …APPELLANTS (BY SRI B.K.HIREMATH, ADVOCATE) Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2271 RSA No. 200368 of 2016 AND: 1. TIPPANNA S/O LACHMANNA AGE: 50 YEARS, OCC: AGRICULTURE, R/O: BENAKANAHALLI, TQ: SEDAM, DIST: KALABURAGI – 585 222. 2. BASAPPA S/O SABANNA AGE: 29 YEARS, OCC: AGRICULTURE, R/O: GUNDALLI (B), TQ: SEDAM, DIST: KALABURAGI – 585 222. 3. DEVAKAMMA D/O BASSANNA DUTANOOR AGE: 42 YEARS, OCC: AGRICULTURE, R/O: KODLA VILLAGE, TQ: SEDAM, DIST: KALABURAGI – 585 222. …RESPONDENTS (BY SRI RAVINDRA INJALIKAR, ADVOCATE FOR R1; SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE FOR R3; R2 IS SERVED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY SENIOR CIVIL JUDGE AT SEDAM IN R.A.NO.31/2015 DATED 20.07.2016 ALLOWING THE APPEAL FILED BY THE RESPONDENT NO.3 AND SETTING ASIDE THE JUDGMENT AND DECREE PASSED BY THE CIVIL JUDGE AT SEDAM IN O.S.NO.131/2012 AND THIS HON’BLE COURT BE PLEASED TO SET ASIDE THE JUDGMENT AND DECREE IN R.A.NO.31/2015 ON THE FILE OF SENIOR CIVIL JUDGE AT SEDAM DATED 20.07.2016 AND CONFIRM THE JUDGMENT AND DECREE PASSED BY CIVIL JUDGE AT SEDAM IN - 3 - NC: 2025:KHC-K:2271 RSA No. 200368 of 2016 O.S.NO.131/2012 DATED 15.07.2015 AND RESTORE THE SAME, IN THE INTEREST OF JUSTICE AND EQUITY. THIS REGULAR SECOND APPEAL, COMING ON FOR DICTATION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. 2. This appeal is arising from a divergent decree in a suit for partition. Three sisters filed a suit against defendant No.1 - brother and defendant No.2 who claims to be the adopted son of defendant No.1 and defendant No.3 is the purchaser from defendant No.2. 3. The suit was initially decreed. Defendant No.1 supported the case of the plaintiff. Defendant No.2 contested the suit. Defendant No.3 filed the appeal. The appeal is allowed. Judgment and decree passed by the - 4 - NC: 2025:KHC-K:2271 RSA No. 200368 of 2016 Trial Court are set aside. Consequently, the suit is dismissed. Hence, the plaintiffs are before this Court. 4. Brief facts of the case are as under: i) Lakshmanna was the propositus and his wife was Dodavva. The couple had three daughters namely Shanamma, Malamma and Devaki who were the plaintiffs and one son Thipanna is defendant No.1. Defendant No.2 claims to be the adopted son of Thipanna and it is also forthcoming from the records that there was a registered gift deed in favour of defendant No.2 executed by defendant No.1. ii) The subject matter of the suit are the properties covered under the aforementioned registered gift deed. iii) The plaintiffs contended that all the properties originally belonged to their father as such they claimed share in the properties on the premises - 5 - NC: 2025:KHC-K:2271 RSA No. 200368 of 2016 that they are also entitled to equal share as they are class-I heirs of their father. iv) Defendant No.1 supported the case of the plaintiffs. Defendant No.2 contested the suit and defendant No.3 contested the suit on premise that the property belonged to Thipanna –defendant No.1 and he executed a gift deed in favour of defendant No.2 and defendant No.2 sold one of the properties covered under the registered gift deed. 5. It is also contended by defendant No.3 that the suit is filed in collusion and suit is not maintainable without including all the joint family properties standing in the name of Thipanna. 6. The Trial Court held that the suit is maintainable and overruled the contentions of defendants No.2 and 3. - 6 - NC: 2025:KHC-K:2271 RSA No. 200368 of 2016 7. The First Appellate Court noticed that the plaintiffs have admitted in the cross examination that two residential houses and two agricultural lands stand in the name of Thipanna and they are the ancestral properties and they are not the subject matter of the suit and on this count the suit is dismissed by allowing the appeal. 8. Learned counsel for the appellants would contend even if other properties belonging to the joint family are not included, that cannot be the ground to dismiss the suit. The First Appellate Court ought to have permitted the plaintiffs to include those properties namely Sy.No. 198/1/3 and 247/8 and two residential houses and should have thereafter decided the case on merits. 9. Learned counsel for respondent No.3 on the other hand would contend that the suit is filed in collusion and respondent No.1 filed the suit challenging the adoption as well as the gift deed executed in favour of defendant No.2 and he failed in that suit and thereafter, he has set up his sisters to defeat the right acquired by - 7 - NC: 2025:KHC-K:2271 RSA No. 200368 of 2016 defendant No.3 under the registered sale deed executed by defendant No.2. 10. It is also his further contention that the plaintiffs have admitted the cross examination that there are two residential houses and two agricultural lands belonging to the family and those properties are not included in the suit which would demonstrate that the suit is coercive. 11. This Court has considered the contentions raised at the bar and perused the records. 12. The following question of law arises for consideration. Whether the First Appellate Court is justified in dismissing the suit by allowing the appeal on the premise that four properties namely two residential houses and two agricultural lands belonging to the family are not included in the suit? 13. The law relating to the partition suit is well settled relating to non inclusion of all the joint family - 8 - NC: 2025:KHC-K:2271 RSA No. 200368 of 2016 properties. It is true that all the joint family properties have to be included in the suit filed for partition else the suit would be defective unless appropriate leave is sought under Order II Rule 2 of Code of Civil Procedure. However not including all the properties in a suit for partition cannot be a ground to dismiss the suit unless the plaintiff does not include the properties despite Court directing such inclusion. 14. The Court in the first instance should direct the plaintiffs to include those properties and despite that, if the plaintiffs do not choose to include those properties then the suit has to be dismissed. 15. This being the position, this Court is of the view that, notwithstanding the dismissal of the suit in view of the Judgment and decree passed by the First Appellate Court, the plaintiffs’ right to file a suit for partition to include all the joint family properties is not taken away. 16. In case the appellants do not include all the joint family properties in the suit then they must fail. - 9 - NC: 2025:KHC-K:2271 RSA No. 200368 of 2016 17. Under these circumstances, the plaintiffs are at liberty to institute a fresh suit by including all the joint family properties. If such suit is filed, the defendants are at liberty to raise such defence other than the defence that second suit for partition is not maintainable. In addition, it is also made clear that the time spent in prosecuting the suit as well as this appeal is to be excluded in computing the limitation. 18. Hence the following: ORDER i) The appeal is disposed of. ii) Impugned Judgment and Decree passed by the Trial Court and the First Appellate Court are set aside. iii) Liberty is reserved to the plaintiffs to file a fresh suit by including all the joint family properties belonging to joint family of plaintiffs and defendant No.1. - 10 - NC: 2025:KHC-K:2271 RSA No. 200368 of 2016 iv) Defendants in the said suit if initiated are permitted to take all defence available under law except the defence that second suit for partition is not maintainable. Sd/- (ANANT RAMANATH HEGDE) JUDGE TMP List No.: 1 Sl No.: 48