- 1 - NC: 2025:KHC-K:1972 RSA No. 7444 of 2011 C/W RSA No. 7445 of 2011 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 26TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 7444 OF 2011 (PAR) C/W REGULAR SECOND APPEAL NO. 7445 OF 2011 IN R.S.A.NO.7444 OF 2011 BETWEEN: 1. VENKANNA @ VENKANAGOUDA MELGADER S/O LATE BASANGOUDA, AGE: 68 YEARS, OCC: AGRICULTURE, R/O: JANGAMARAHALLI VILLAGE, PO: HALAPUR VILLAGE, TQ: MANAVI, DIST: RAICHUR – 584 121. 2. SMT CHENNA BASAMMA W/O VENKANNA MELGADER @ VENKANAGOUDA MELGADER, AGE: 61 YEARS, OCC: H.H.WORK AND AGRICULTURE, R/O: JANGAMARAHALLI VILLAGE, PO: HALAPUR VILLAGE, TQ: MANAVI, DIST: RAICHUR – 584 121. 3. BASAVRAJ S/O VENKANNA MELGADER @ VENKANAGOUDA MELGADER, AGE: 38 YEARS, Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1972 RSA No. 7444 of 2011 C/W RSA No. 7445 of 2011 OCC: AGRICULTURE, R/O: JANGAMARAHALLI VILLAGE, PO: HALAPUR VILLAGE, TQ: MANAVI, DIST: RAICHUR – 584 121. 4. VENKANNA @ VENKATESH S/O VENKANNA @ VENKANAGOUDA MELGADER, AGE: 26 YEARS, OCC: AGRICULTURE, R/O: JANGAMARAHALLI VILLAGE, PO: HALAPUR VILLAGE, TQ: MANAVI, DIST: RAICHUR – 584 121. 5. KUM. YENKAMMA MELGADER D/O VENKANNA @ VENKANAGOUDA MELGADER, AGE: 31 YEARS, OCC: H.H.WORK, R/O: JANGAMARAHALLI VILLAGE, PO: HALAPUR VILLAGE, TQ: MANAVI, DIST: RAICHUR – 584 121. 6. KUM. BASAMMA MELGADER D/O VENKANNA @ VENKANAGOUDA MELGADER, AGE: 29 YEARS, OCC: H.H.WORK, R/O: JANGAMARAHALLI VILLAGE, PO: HALAPUR VILLAGE, TQ: MANAVI, DIST: RAICHUR – 584 121. 7. SMT. AYYAMMA W/O VENKANNA @ YENKANNA GOUDA MELGADER, AGE: 44 YEARS, OCC: H.H.WORK AND AGRI., R/O: NILOGAL VILLAGE, - 3 - NC: 2025:KHC-K:1972 RSA No. 7444 of 2011 C/W RSA No. 7445 of 2011 PO: GAJJALAGATTA VILLAGA, TQ: LINGASUR, DIST: RAICHUR – 584 122. …APPELLANTS (BY SRI RAVI B.PATIL, ADVOCATE FOR APPELLANTS NOS.2,5,6 & 7; SRI SANGANAVASAVA B.PATIL AND SRI SACHIN M. MAHAJAN, ADVOCATE FOR APPELLANTS 3 AND 4) AND: SMT. SHANTHAMMA W/O LATE CHANDESH @ CHANDRASHEKHAR AGE: 31 YEARS, OCC: H.H.WORK AND AGRI., R/O: JAGAMARAHALLI VILLAGE, PO:. HALAPUR VILLAGE, TQ: MANAVI, DIST: RAICHUR. NOW AT NILOGAL VILLAGE, POST: GAJJALAGATTA VILLAGE, TQ: LINGASUGUR – 584 122. …RESPONDENT (BY SRI AJAY KUMAR ASHOK KUMAR, ADVOCATE; V/O DATED 29.05.2024, APPEAL AGAINST DECEASED APPELLANT NO.1 IS ABATED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF C.P.C., PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 05.03.2011 PASSED BY THE FAST TRACK-I COURT, RAICHUR PARTY ALLOWING R.A.NO.88/2010 AND MODIFYING THE JUDGMENT AND DECREE DATED 15.06.2010 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND J.M.F.C.-1, RAICHUR, IN OS.NO.308/2005, AND FURTHER DISMISS THE SAID SUIT WITH COST THROUGH OUT IN THE INTEREST OF JUSTICE AND EQUITY. - 4 - NC: 2025:KHC-K:1972 RSA No. 7444 of 2011 C/W RSA No. 7445 of 2011 IN R.S.A.NO.7445 OF 2011 BETWEEN: 1. VENKANNA @ VENKANAGOUDA MELGADER S/O LATE BASANGOUDA, AGE: 68 YEARS, OCC: AGRICULTURE, R/O: JANGAMARAHALLI VILLAGE, PO: HALAPUR VILLAGE, TQ: MANAVI, DIST: RAICHUR – 584 121. 2. SMT CHENNA BASAMMA W/O VENKANNA @ VENKANAGOUDA MELGADER, AGE: 61 YEARS, OCC: H.H.WORK AND AGRICULTURE, R/O: JANGAMARAHALLI VILLAGE, PO: HALAPUR VILLAGE, TQ: MANAVI, DIST: RAICHUR – 584 121. 3. BASAVRAJ S/O VENKANNA @ VENKANAGOUDA MELGADER, AGE: 38 YEARS, OCC: AGRICULTURE, R/O: JANGAMARAHALLI VILLAGE, PO: HALAPUR VILLAGE, TQ: MANAVI, DIST: RAICHUR – 584 121. 4. VENKANNA @ VENKATESH S/O VENKANNA @ VENKANAGOUDA MELGADER, AGE: 26 YEARS, OCC: AGRICULTURE, R/O: JANGAMARAHALLI VILLAGE, PO: HALAPUR VILLAGE, TQ: MANAVI, DIST: RAICHUR – 584 121. - 5 - NC: 2025:KHC-K:1972 RSA No. 7444 of 2011 C/W RSA No. 7445 of 2011 5. KUM. YENKAMMA MELGADER D/O VENKANNA @ VENKANAGOUDA MELGADER, AGE: 31 YEARS, OCC: H.H.WORK, R/O: JANGAMARAHALLI VILLAGE, PO: HALAPUR VILLAGE, TQ: MANAVI, DIST: RAICHUR – 584 121. 6. KUM. BASAMMA MELGADER D/O VENKANNA @ VENKANAGOUDA MELGADER, AGE: 29 YEARS, OCC: H.H.WORK, R/O: JANGAMARAHALLI VILLAGE, PO: HALAPUR VILLAGE, TQ: MANAVI, DIST: RAICHUR – 584 121. 7. SMT. AYYAMMA W/O VENKATA REDDAPPA JEENUR D/O: VENKANNA @ VENKANAGOUDA MELGADER, AGE: 44 YEARS, OCC: H.H.WORK AND AGRI., R/O: NILOGAL VILLAGE, PO: GAJJALAGATTA VILLAGA, TQ: LINGASUR, DIST: RAICHUR – 584 122. …APPELLANTS (BY SRI RAVI B.PATIL, ADVOCATE FOR APPELLANTS NOS.2,5,6 & 7; SRI BASAVARAJ R. MATH, ADVOCATE FOR APPELLANTS NO3 AND 4) AND: SMT. SHANTHAMMA W/O LATE CHANDESH @ CHANDRASHEKHAR - 6 - NC: 2025:KHC-K:1972 RSA No. 7444 of 2011 C/W RSA No. 7445 of 2011 AGE: 31 YEARS, OCC: H.H.WORK AND AGRI., R/O: JAGAMARAHALLI VILLAGE, PO:. HALAPUR VILLAGE, TQ: MANAVI, DIST: RAICHUR. NOW AT NILOGAL VILLAGE, POST: GAJJALAGATTA VILLAGE, TQ: LINGASUGUR – 584 122. …RESPONDENT (BY SRI AJAY KUMAR ASHOK KUMAR, ADVOCATE; V/O DATED 29.05.2024, APPEAL AGAINST DECEASED APPELLANT NO.1 IS ABATED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF C.P.C., PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 05.03.2011 PASSED BY THE FAST TRACK-I COURT, RAICHUR PARTY ALLOWING R.A.NO.88/2010 AND MODIFYING THE JUDGMENT AND DECREE DATED 15.06.2010 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND J.M.F.C.-1, RAICHUR, IN OS.NO.308/2005, AND FURTHER DISMISS THE SAID SUIT WITH COST THROUGH OUT IN THE INTEREST OF JUSTICE AND EQUITY. THIS REGULAR SECOND APPEALS, COMING ON FOR FINAL HEARING, 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) These two appeals arising from the decree in RA Nos.88/2010 and 98/2010 on the file of First Track Court at Raichur. The aforementioned two appeals before the Fast Track - 7 - NC: 2025:KHC-K:1972 RSA No. 7444 of 2011 C/W RSA No. 7445 of 2011 Court, Raichur, arose from O.S No.308/2005 on the file before Additional Senior Civil Judge, Raichur. 2. The suit was one for partition and separate possession. The genealogy of the parties is as under:_ Venkanna (Defendant No.1) Smt. Chennabasamma (Defendant No.2) Chandesh Basavaraj Venkanna Smt. Yenkamma Kum. Basamma Smt. Ayamma (Dead) (Deft No.3) (Deft No.4) (Deft No.5) (Deft No.6) (Deft No.7) Smt. Shanthamma (Plaintiff) 3. Venkanna was the propositus and he was defendant No.1 and he died during the pendency of the appeal. Channna basamma - defendant No.2 is the wife of Venkanna – propositus. The couple had six children. Eldest son Chandesh died prior to the suit. Wife of Chandesh named Shanthamma filed a suit for partition. Remaining children of propositus – Venkanna and his wife Channna basamma are arrayed as defendants No.2 to 7. Venkanna is defendant No.1. - 8 - NC: 2025:KHC-K:1972 RSA No. 7444 of 2011 C/W RSA No. 7445 of 2011 4. The plaintiff contended that all the properties are joint family properties. 1st defendant – propositus Venkanna contested the suit on the premise that item Nos.1, 2 and 4 are the joint family properties as per ‘A’ schedule. Item No.3 of ‘A’ schedule property is the self acquired property. He also contended that item Nos.1 to 8 of ‘B’ schedule properties are self acquired properties. 1st defendant took a stand that item Nos.13 to 15 of ‘B’ schedule are the self acquired properties of his son Basavaraj and item Nos.16 to 18 are the self acquired properties of another son – Venkanna. Basavaraj and Venkanna adopted the written statement. 5. The Trial Court held that all the properties are joint family properties on the premise that self acquisition in the name of Basavaraj and Venkanna is not established. However the Trial Court, except item No.5 of ‘A’ schedule granted 1/16th share in all the properties and granted ½ share to the plaintiff in the life insurance benefits i.e., item No.5 of ‘A’ schedule property and ½ share to defendant No.2 in the said item No.5 of ‘A’ schedule. Admittedly, life insurance policy was availed by the husband of plaintiff and son of defendant No.2. - 9 - NC: 2025:KHC-K:1972 RSA No. 7444 of 2011 C/W RSA No. 7445 of 2011 6. Aggrieved by quantum of share awarded by the Trial Court, plaintiff filed RA No.88/2010 and defendants filed RA No.98/2010. In terms of impugned judgment and decree, both appeals are disposed of by common judgment and the Appellate Court allowed RA No.88/2010 and granted 1/7th share in all the properties except item No.5 of ‘A’ schedule. The decree for ½ share in respect of item No.5 is confirmed by the Trial Court. The appeal filed defendants in RA No.98/2010 is dismissed. 7. This Court vide order dated 19.07.2012 has directed the appellants to pay Rs.3,000/- per month towards maintenance based on the contentions of the appellants who asserted that they are in exclusive possession of the properties. 8. It is stated that the only Rs.28,000/- is paid and rest of the amount is not paid. This Court vide order dated 19.07.2012 has held that payment of arrears of maintenance is subject to result of the appeal. Though the amount is not paid, the case is heard on merits. It is to be noticed that order for payment of maintenance has attained finality and the amount is not yet paid. Under these circumstances, it is made clear that payment of arrears of amount shall be the condition precedent - 10 - NC: 2025:KHC-K:1972 RSA No. 7444 of 2011 C/W RSA No. 7445 of 2011 for the appellants to contest the final decree proceedings, which is pending before the Trial Court. 9. Learned counsel for the appellants submits on instructions that the though there was a direction to pay the maintenance amount on all the appellants, the appellants Nos.3 and 4 will take the responsibility of paying maintenance as ordered by this Court. It is made clear that payment of arrears of maintenance shall be condition precedent or contesting the final decree proceedings before the Trial Court. 10. It is however made clear that the share to be awarded in favour of the plaintiffs shall be subject to final outcome of the suit, in case filed by the daughters who are claiming under defendant No.1 and it also made clear that the final decree proceedings shall not be stayed merely because a suit is filed based on a alleged Will said to have executed by defendant No.1. Allotment of the shares to the parties to these proceedings shall be outcome of the suit relating to it if any filed. 11. Both the appeals are clubbed together and following substantial questions of law are framed in terms of order dated 23.07.2014 by admitting the appeal: - 11 - NC: 2025:KHC-K:1972 RSA No. 7444 of 2011 C/W RSA No. 7445 of 2011 i) Whether there was no pleading and proof before the Trial Court to decree the suit of the plaintiff holding that the suit properties are the joint family properties?. ii) Whether the Lower Appellate Court was not justified in dismissing the appeal filed by the defendants without considering the contention raised by the defendants in their cross objection? 12. During the pendency of the appeal, defendant No.1 – propositus died. It is stated that defendant No.1 had executed a Will in favour of appellants No.5, 6 and 7. The plaintiff / respondent did not admit the execution of the Will. The question relating to the validity of the Will cannot be adjudicated in this proceeding. If at all, the Will is executed by defendant No.1, the appellants are at liberty to approach the competent Civil Court. 13. As far as substantial question of law No.1 is concerned, item No.1, 2 and 4 of ‘A’ Schedule properties are admittedly the ancestral properties. Item Nos.1 and 2 are the agricultural lands and total extent is 14 acres. Item No.4 property is the house property. In the cross examination, 1st defendant has admitted that he doesn’t have independent income other than the income of item Nos.1 and 2. Though there is an initial presumption of self acquisition in favour of - 12 - NC: 2025:KHC-K:1972 RSA No. 7444 of 2011 C/W RSA No. 7445 of 2011 defendant No.1 in whose name the property is standing, the presumption is rebutted in view of the existence of two joint family properties namely item Nos.1 and 2 which measure 14 acres and also in view of the admission in the cross examination of defendant No.1 who had admitted that he had no other independent source of income. Thus the contention of the plaintiff that the suit properties standing in the name of defendant No.1 are the joint family properties is established. 14. As far as item Nos.13 to 15 which are standing in the name of appellant No.3, and item Nos.16 to 18 standing in the name of appellant No.4 are concerned, it is to be noticed that those defendants have not entered the witness box to lead evidence to substantiate their contention that the properties are their self acquired properties. Even defendant No.1, who led evidence on behalf of defendants No.3 and 4 has not adduced any evidence to show that his two sons had independent source of income. Based on these materials, the Trial Court has concluded that the properties are the joint family properties. The Appellate Court has also relied on the said evidence to conclude that the properties are the joint family properties. Hence, this Court has to hold that the substantial question of law - 13 - NC: 2025:KHC-K:1972 RSA No. 7444 of 2011 C/W RSA No. 7445 of 2011 No.1 has to be answered in favour of the plaintiff and against the appellants. 15. As far as substantial question of law No.2 is concerned it is noticed that the appellants before the lower Appellate Court in RA No.98/2010 have not filed any cross objection and 2nd substantial question of law in wrongly framed. Hence the said question does not arise. However, they had filed an appeal in RA No.98/2010 and all the contentions in the said appeal have been properly addressed by the Appellate Court. 16. It is submitted at the bar that defendant No.1 has executed a Will in favour of appellants No.6 and 7. It is already noticed that the plaintiff has denied the execution of the said Will and this Court has already held that legality of the said Will cannot be considered in this appeal. If at all the Will is executed by defendant No.1, same has to be established before the competeant Civil Court. However, for the purpose of calculation of shares, the Court has to proceed as if the defendant No.1 has died intestate. In that event, the share has to modified by taking into account the subsequent event namely death of defendant No.1. - 14 - NC: 2025:KHC-K:1972 RSA No. 7444 of 2011 C/W RSA No. 7445 of 2011 17. Hence the following: i) Both appeals are disposed of, confirming the findings relating to the nature of properties. ii) However, the share is modified as under: The plaintiff is entitled to ½ share in item No.5 of ‘A’ Schedule property and entitled to 1/7th share of rest of the properties. iii) Defendant No.2 is entitled to 3/14th share (1/7th of own share + 1/2 share of her son) in all properties except item No.5 of ‘A’ schedule. In item No.5 of ‘A’ schedule, defendant No.2 is entitled to ½ share. iv) Rest of the defendants are entitled to 1/7th share each in all the properties except item No.5 of ‘A’ schedule. v) The Final Decree Court shall draw the final decree pursuant to decree passed by this Court modifying the share. - 15 - NC: 2025:KHC-K:1972 RSA No. 7444 of 2011 C/W RSA No. 7445 of 2011 vi) Filing of suit based on alleged Will of defendant No.1 shall not come in the way of the final disposal of Final Decree proceeding pursuant to this decree. vii) The Final decree to be drawn pursuant to this decree shall be subject to the decision in the suit, if any filed based on the alleged Will of defendant No.1 who has died during the pendency of the appeal. Sd/- (ANANT RAMANATH HEGDE) JUDGE THM List No.: 1 Sl No.: 45