- 1 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 245 OF 2014 (PAR) C/W REGULAR SECOND APPEAL NO. 469 OF 2014 (PAR) IN RSA No. 245/2014 BETWEEN: GIRIYAPPA SINCE DEAD BY LRS, 1. SMT.RATHNAMMA, W/O LATE GIRIYAPPA, AGED ABOUT 62 YEARS, 2. SMT. SHARADAMMA W/O LATE GIRIYAPPA, AGED ABOUT 52 YEARS, 3. MR.VENKATESH S/O LATE GIRIYAPPA, AGED ABOUT 27 YEARS, 4. MS.JEEVITHA D/O LATE GIRIYAPPA, AGED ABOUT 24 YEARS, ALL ARE RESIDING AT ARASIKERE VILLAGE, NIDAGAL HOBLI, PAVAGADA TALUK, TUMKUR DISTRICT - 572 116. Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 5. HANUMANTHARAYAPPA S/O MUDLAGIRIYAPPA, AGED ABOUT 53 YEARS, R/O ARASIKERE VILLAGE, NIDAGAL HOBLI, PAVAGADA TALUK, TUMKUR DISTRICT - 572 116. …APPELLANTS (BY SRI. YOGESH V. KOTEMATH, ADVOCATE FOR SRI. VIRUPAKSHAIAH P.H, ADVOCATE) AND: 1. LAKSHMIDEVI D/O MUDLAGIRIYAPPA, AGED ABOUT 43 YEARS, R/AT ARASIKERE VILLAGE, NIDAGAL HOBLI, PAVAGADA TALUK, TUMKUR DISTRICT - 572 116. 2. JAYALAKSHAMMA D/O MUDLAGIRIYAPPA, AGED ABOUT 46 YEARS, R/AT ARASIKERE VILLAGE, NIDAGAL HOBLI, PAVAGADA TALUK, TUMKUR DISTRICT - 572 116. …RESPONDENTS (BY SMT. S. NAGANANDINI, ADVOCATE FOR R1; SRI. HARISH M.R, ADVOCATE FOR SRI. PATEL D. KANEGOWDA, ADVOCATE FOR R2) THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED 8.11.2013 PASSED IN R.A.NO.12/2002 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE & JMFC.M MADHUGIRI, (SITTING AT PAVAGADA), PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 15.12.2001 PASSED IN - 3 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 OS.NO.36/1997 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) & JMFC., PAVAGADA. IN RSA NO. 469/2014 BETWEEN SMT. LAKSHMIDEVI D/O LATE MUDLAGIRIYAPPA, AGED ABOUT 46 YEARS, RESIDENT OF ARASIKERE VILLAGE, NIDAGAL HOBLI, PAVAGADA TALUK, TUMKUR DISTRICT - 572 116. REPRESENTED BY HER GENERAL POWER OF ATTORNEY, SRI. R. NAGARAJAIAH, S/O RANGANNA, AGED ABOUT 57 YEARS. …APPELLANT (BY SMT. S. NAGANANDINI, ADVOCATE) AND: 1. SRI. GIRIYAPPA S/O LATE MUDALAGIRIYAPPA, AGED ABOUT 67 YEARS, SINCE DEAD BY HIS LEGAL REPRESENTATIVES, 1(A). RATHNAMMA, W/O LATE GIRIYAPPA, AGED ABOUT 62 YEARS, 1(B). SHARADAMMA W/O LATE GIRIYAPPA, AGED ABOUT 52 YEARS, - 4 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 1(C). MR.VENKATESH S/O LATE GIRIYAPPA, AGED ABOUT 27 YEARS, 1(D). MISS. JEEVITHA D/O LATE GIRIYAPPA, AGED ABOUT 24 YEARS, 2. SRI. HANUMANTHARAYAPPA S/O LATE MUDLAGIRIYAPPA, AGED ABOUT 55 YEARS, 3. SMT. JAYALAKSHAMMA D/O MUDLAGIRIYAPPA, AGED ABOUT 48 YEARS, ALL ARE RESIDENTS OF ARASIKERE VILLAGE, NIDAGAL HOBLI, PAVAGADA TALUK, TUMKUR DISTRICT - 572 116. …RESPONDENTS (BY SRI. YOGESH V. KOTEMATH, ADVOCATE FOR SRI. VIRUPAKSHAIAH P.H, ADVOCATE FOR R1(A & B) AND R2; SRI. HARISH M.R, ADVOCATE FOR SRI. PATEL D. KAREGOWDA, ADVOCATE FOR R3; R1(C), R1(D) ARE SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 8.11.2013 PASSED IN R.A. NO.12/2002 ON THE FILE OF THE ITINERARY COURT OF SENIOR CIVIL, PAVAGADA, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE - 5 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 DATED 15.12.2001 PASSED IN SO.NO.36/1997 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) AND JMFC., PAVAGADA. THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT These Regular Second Appeals are filed by the appellant, challenging the judgment and decree dated 08.11.2013, passed in R.A.No.12/2002 by the learned Itinerary Senior Civil Judge, Pavagada. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. In RSA.No.245/2014, the deceased appellant was the defendant No.1, appellant No.5 was defendant No.2, respondent No.2 was defendant No.3, and respondent No.1 was the plaintiff. In RSA No.469/2009, the appellant was the plaintiff, and the respondents were the defendants. - 6 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 3. Brief facts, leading rise to the filing of these appeals are as follows: The plaintiff filed a suit against the defendants for partition and separate possession of a 1/4th share in the suit schedule properties. It is contended that the plaintiff and the defendants are the sons and daughters of the late Mudalagiriyappa. The said Mudalagiriyappa agreed to divide the suit properties by way of an agreement of settlement dated 30.12.1994. The plaintiff is entitled to a 1/4th share, and the defendants are entitled to a 1/4th share each, in the suit schedule properties. It is contended that the plaintiff and the defendants are members of the Hindu Undivided Family, and is no partition has been effected between the parties to the suit. The plaintiff demanded a partition and separate possession. The defendants refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit. - 7 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 3.1. The defendants filed a written statement admitting the relationship between the parties to the suit, and it is denied that the alleged agreement of settlement was executed by their father. It is contended that neither the plaintiff nor defendant No.3 is entitled to any share in the suit schedule properties. It is contended that defendant No.3 was given in marriage, to one Nagarajaiah in 1983. Thereafter, she went away to her husbands home. Defendant No.3 gave birth to male child in 1985 and plaintiff No.1 was sent to her home to look after her sister i.e., defendant No.3. During the said period, husband of defendant No.3 developed illicit contact with the plaintiff, and the matter came to the knowledge of the elders of the family, and the marriage of the plaintiff was performed with Nagarajaiah in 1986. It is contended that on the instigation of Nagarajaiah, the plaintiff requested her father to give some properties and he gifted Sy.Nos.33 and 34 of Arasikere village to the plaintiff and filed this suit, and it is contended that item Nos.1, 2, 3 and 4 are - 8 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 the self acquired properties of defendant No.1, and accordingly, prays to dismiss the suit against defendant Nos.1 and 2. 3.2. Defendant No.3 filed the consent written statement, and accordingly, prays to decree the suit of the plaintiff. 3.3. The Trial Court, based on the aforementioned pleadings, framed the following issues: Issues: 1) Whether the plaintiff proves that the suit properties of the joint family properties of her and defendants? 2) Whether the plaintiff proves that she is entitled for 1/4th share in the suit properties? 3) Whether the plaintiffs proves that she is entitled for partition and separate possession of her 1/4th share in the suit properties? 4) Whether the defendant No.1 and 2 prove that the father of the plaintiff has given 24 guntas of land along with three tamarind trees in Sy.No.33 and 34 for her Arishina- Kumkuma? - 9 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 5) Whether the suit of the plaintiff is not maintainable in law? 6) Whether the plaintiff is entitled for decree as prayed for? 7) What order or decree? 3.4. The plaintiff, to substantiate her case, examined her power of attorney holder as PW.1, examined two witnesses as PW.2 and PW.3, and marked 16 documents as Exs.P1 to P16. In rebuttal, defendant No.1 was examined as DW.1, defendant No.3 was examined as DW.4, defendant No.2 was examined as DW.7, examined 4 witnesses as DW.2, 3, 5 and 6 and marked 7 documents as Exs.D1 to D7. The trial Court, after recording the evidence, hearing on both sides, and assessing the verbal and documentary evidence of the parties, answered issue Nos.1 to 3 and 6 in the negative, issue Nos.4, and 5 in the affirmative, and issue No.7 as per final order. The suit of the plaintiff was dismissed vide judgment dated 15.12.2001. - 10 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 3.5. The plaintiff, aggrieved by the judgment and decree passed in O.S.No.36/1997 preferred an appeal in R.A.No.12/2002 on the file of learned Itinerary Senior Civil Judge, Pavagada. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: 1) Whether the trial Court is justified in dismissing the suit? 2) Whether there are grounds to interfere in impugned judgment and decree of learned trial Court? 3) Whether there are grounds to allow I.A filed by the plaintiff and defendants respectively U/o 41, Rule 27 of CPC and produced the documents as prayed? 4) What order? 3.6. The First Appellate Court, on reassessing the verbal and documentary evidence, answered point Nos.1 and 3 in the negative, point No.2 partly in the affirmative, and point No.4 as per final order. The appeal was partly allowed vide judgment dated 08.11.2013 and the judgment and decree passed by the trial Court was set - 11 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 aside, and the suit of the plaintiff was partly decreed. It is ordered and declared that the plaintiff is entitled to a partition and separate possession of her 1/4th share in item Nos.1, 2, 5 to 7 of the suit schedule properties by metes and bounds, and confirmed the judgment and decree dismissed the suit regarding item Nos.3 and 4 of the suit schedule properties. 3.7. The plaintiff, aggrieved by the judgments and decrees passed by the First Appellate Court regarding in dismissing of the suit regarding item Nos.3 and 4 filed an appeal in RSA.No.469/2014, and the legal representatives of defendant Nos.1 and 2, aggrieved by the judgment and decree passed in R.A.No.12/2002 regarding the decree passed in respect of item Nos.1, 2 and 5 to 7 of the suit schedule properties, filed Regular Second Appeal in RSA.No.245/2014. 4. This Court, on 21.06.2023, admitted the appeals to consider the following substantial questions of law: - 12 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 In RSA.No.245/2014: “Whether the First Appellate Court is justified in granting ¼ share to the plaintiff in item Nos.1, 2 and 5 to 7 in the suit schedule properties even though the plaintiff has been given 4 guntas in survey No.33 and 20 guntas in survey No.34 under gift deed dated 10.05.1995 (Ex.D1)? In RSA.No.469/2014: “Whether the First Appellate Court is justified in granting share to the plaintiff in item No.s.3 and 4 in the suit schedule properties when the propositor Mudalagiriappa has stated that he purchased item Nos.3 and 4 in the name of defendant No.2 in settlement deed (Ex.P2)? 5. Heard the arguments of the learned counsel for the plaintiff, and the learned counsel for the legal representatives of defendant Nos.1 and 2. 6. Learned counsel for the plaintiff submits that the father purchased the suit item Nos.3 and 4 of the suit schedule properties in the name of the defendants, and the said item Nos.3 and 4 of the suit schedule properties are the joint family properties of the plaintiff and the defendants. The plaintiff and defendants are entitled to an - 13 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 equal share in item Nos.3 and 4 of the suit schedule properties. She submits that the trial Court as well as the First Appellate Court had committed an error in declining to grant a share in item Nos.3 and 4 of the suit schedule properties. She also submits that as of the date of purchasing item Nos.3 and 4 of the suit schedule properties, the defendants were minor, hence, the said aspect was not considered by the courts below and committed an error in dismissing the suit regarding item Nos.3 and 4 of the suit schedule properties. Hence, she prays to allow the appeal in RSA.No.469/2014, and prays to dismiss the appeal in RSA.No.245/2014. 7. Per contra, learned counsel for the defendants submits that the suit schedule item Nos.3 and 4 are the self acquired properties of defendant No.1. He submits that both the courts below have concurrently recorded a finding of fact that the plaintiff has failed to establish that item Nos.3 and 4 were acquired out of the joint family nucleus. He submits that the plaintiff has not pleaded in - 14 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 the plaint that item Nos.3 and 4 were purchased out of a joint family nucleus, and the plaintiff has also not produced the record that the family possessed a sufficient nucleus for purchasing item Nos.3 and 4 of the suit scheduled properties. He submits that the father of the plaintiff has already given two landed properties to the plaintiff. Hence, the plaintiff is not entitled to any share in item Nos.1, 2 and 5 to 7. He submits that the First Appellate Court has committed an error in granting share to the plaintiff in item No.1, 2, 5 to 7. He submits that the judgment and decree passed by the First Appellate Court in RA.No.12/2002 granting a share in item Nos.1, 2, 5 to 7 properties in favour of the plaintiff is arbitrary, and erroneous. Hence, he prays to allow the appeal in RSA.No.245/2014, and accordingly, prays to dismiss the appeal in RSA.No.469/2014. 8. Perused the records, and considered the submissions of learned counsel for the parties. - 15 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 9. REG. SUBSTANTIAL QUESTION OF LAW IN RSA.NO.245/2014: There is no dispute regarding the relationship between the parties to the suit, and it is also not in dispute that Mudalagiriyappa, by way of an agreement of settlement dated 30.12.1994, divided the properties. It is contended that the suit schedule properties are the joint family properties of the plaintiff and the defendants, and they are the members of the Hindu Undivided Family, and no partition is effected between the plaintiff and the defendants. The plaintiff demanded partition and separate possession, but the defendants refused to effect a partition. The plaintiff, to substantiate her case, examined her power of attorney holder as PW.1. He reiterated the plaint averments in the examination-in-chief, and also produced the documents marked as Exs.P1 to P16. Furthermore, the plaintiff also examined 2 witnesses, who deposed that the suit schedule properties are the joint family properties of the plaintiff, and the defendants, and - 16 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 no partition has been effected between the plaintiff and the defendants. Further, defendant No.1 was examined as DW.1, and he reiterated the written statement averments in the examination-in-chief, and contended that item Nos.3 and 4 of the suit schedule properties are the self acquired properties of defendant No.1. He deposed that the plaintiff is not entitled to a share in the suit scheduled properties as the plaintiff is not a coparcener. Defendant No.2 was examined as DW.7. He deposed on the same terms as DW.1, and also examined 5 witnesses, to prove the defence that item Nos.3 and 4 of the suit schedule properties are the self acquired properties of defendant No.1. 10. From the perusal of the entire evidence on record, there is no dispute regarding item Nos.1, 2, 5 to 7 of the suit schedule properties which are the joint family properties of the plaintiff and the defendants, and there is no partition effected between the plaintiff and the defendants. The plaintiff and defendants are members of - 17 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 Hindu undivided joint family. The defence of the defendants is that the plaintiff was given a land by the father in Sy.Nos.33 and 34 by a registered gift deed dated 10.05.1995. Admittedly, the defendants have not challenged the gift deed executed by the plaintiff’s father in favour of the plaintiff. The defendants have acquired their right, by not challenging the registered gift deed dated 10.05.1995, so far as the lands bearing Sy.No.33 measuring 4 guntas, and in Sy.No.34, measuring 21 guntas are concerned. Merely, because the father of the plaintiff has given the aforesaid properties in favour of the plaintiff, it is not a ground to decline the legitimate right of the plaintiff in the suit schedule properties. The First Appellate Court, considering the entire evidence on record, has rightly held that item Nos.1, 2, 5 to 7 are the joint family properties of the plaintiff and the defendants, and no partition is effected between them and rightly granted 1/4th share in item Nos.1, 2, 5 to 7 of the suit schedule properties by metes and bounds. I do not find any error in - 18 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 the judgment passed by the First Appellate Court in granting a share in item Nos.1, 2, 5 to 7, and rightly discarded the defence of the defendants that as the plaintiff was given 4 guntas of land in Sy.No.33 and 21 guntas of land in Sy.No.34 under registered gift deed dated 10.05.1995 she was not entitled to her legitimate share. As observed above, the defendants have not challenged the registered gift deed. In view of the above discussion, I answer a substantial question of law, partly in the affirmative, in RSA.No.245/2014. 11. REG. SUBSTANTIAL QUESTION OF LAW IN RSA.NO.469/2014: The plaintiff is claiming, item Nos.3 and 4 of the suit schedule properties as the joint family properties of the plaintiff and the defendants, and the said properties were acquired by Mudalagiriyappa i.e., Propositor in the name of defendant No.2. I have perused the pleadings made in - 19 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 the plaint and the plaintiff, nowhere in the plaint, has pleaded that the family possessed sufficient nucleus to purchase item Nos.3 and 4 of the suit schedule properties. Furthermore, during the examination-in-chief of PW.1, he did not depose that item Nos.3 and 4 were purchased from joint family nucleus. In a suit for partition and separate possession, the initial burden is always on the plaintiff to establish the relationship between the parties to the suit, and the nature of the suit schedule properties. Admittedly, in the instant case, the plaintiff has neither pleaded nor proved that the family possessed a sufficient nucleus to purchase item Nos.3 and 4 of the suit schedule properties. It is settled law that there is a presumption regarding the joint family, and there is no presumption in regard to joint family properties. 12. The Hon'ble Apex Court in the case of APPASAHEB PEERAPPA CHANDGADE VS DEVENDRA PEERAPPA - 20 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 CHANDGADE AND ORS. reported in AIR 2007 SC 218 held in para No.9, which reads as under: “So far the legal proposition is concerned, there is no gain saying that whenever a suit for partition and determination of share and possession thereof is filed, then the initial burden is on the plaintiff to show that the entire property was a joint Hindu family property and after initial discharge of the burden, it shifts on the defendants to show that the property claimed by them was not purchased out of the joint family nucleus and it was purchased independent of them. This settled proposition emerges from various decisions of this Court right from 1954 onwards.” 13. Admittedly, as observed above, the plaintiff has failed to establish that item Nos.3 and 4 of the suit schedule properties were purchased out of a joint family nucleus. The sale deeds are standing in the name of defendant No.2 regarding item Nos.3 and 4 of the suit schedule properties. Both the courts below have concurrently recorded a finding of fact that the plaintiff has failed to establish that item Nos.3 and 4 were purchased - 21 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 out of a joint family nucleus. Both the courts below were justified in declining to grant a share to the plaintiff in item Nos.3 and 4 of the suit schedule properties. I do not find any errors in the impugned judgments passed by the courts below regarding item Nos.3 and 4 of the suit schedule properties. In view of the above discussion, I answer substantial question of law, partly in the affirmative, in RSA.No.469/2014. 14. In view of the aforesaid facts and circumstances, I proceed to pass the following: ORDER The Appeals are dismissed. The judgment and decree dated 08.11.2013, passed in R.A.No.12/2002 by the learned Senior Civil Judge, Pavagada is hereby confirmed. - 22 - HC-KAR NC: 2025:KHC:24249 RSA No. 245 of 2014 C/W RSA No. 469 of 2014 No order as to the costs. In view of the dismissal of the appeal, the pending IA’s if any, does not survive for consideration. Accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE SSB CT: BHK