- 1 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1021 OF 2016 (PAR) BETWEEN: SMT SUNANDA W/O BABU KOTIAN, AGED ABOUT 76 YEARS, R/AT BRIDGE HOUSE, OPP. KULAI BHAVAN, MANGALADEVI ROAD, MANGALURU – 575 001 …APPELLANT (BY SRI. UDAYA PRAKASH M., ADVOCATE) AND: MRS. SHASHIKALA D/O LATE RAVINDRA BOLOOR, AGED ABOUT 60 YEARS, R/AT PARAMESHWARA COMPOUND, OPP. VENKATESH BAJAN MANDALI, BOLOOR, MANGALURU – 575 006 …RESPONDENT (BY SRI. M VISHWAJITH RAI, ADVOCATE) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 31.03.2016 PASSED IN R.A NO.347/2004 ON THE FILE OF THE II ADDL. DISTRICT AND SESSIONS JUDGE, D.K, MANGALURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 02.03.1996 PASSED IN O.S NO.607/1994 ON THE FILE OF THE IV ADDL. MUNSIFF, MANGALORE, D.K.. Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant, challenging the judgment and decree dated 31.3.2016 passed in R.A.No.347/2004 by the learned II Additional District and Sessions Judge, D.K. Mangalore, reversing and setting aside judgment and decree dated 02.03.1996 passed in O.S.No.607/1994 by the learned IV Addl. Senior Civil Judge, Mangalore. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was the defendant, and the respondent was the plaintiff. 3. Brief facts, leading rise to the filing of this appeal are as follows : The original plaintiff filed a suit for partition, and separate possession regarding the suit schedule properties. It is the case of the plaintiff that, one - 3 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 Nagamma is the sister of plaintiff's father and defendant's mother Smt.Yamuna @ Rajamma. The said Nagamma owned agricultural tenanted property of T.S.No.663, measuring 11½ cents, with a building in Mangaluni Thota village, within the City Corporation of Mangaluru. It is contended that the land tribunal granted the said land, in favour of Nagamma vide order dated 16.1.1978, and Form No.10 was issued in her name. The said Nagamma died on 27.5.1987 as a spinster, by which, it is stated that, the plaintiff’s father and defendant’s mother, being the only successors, inherited equal share in the suit schedule property. It is the case of the plaintiff that he is the son of late Gangadhara i.e., the brother of Nagamma. It is contended that, the plaintiff’s father was managing and looking after the suit schedule property, and was in possession and enjoyment of the plaint schedule property, along with the defendant, after the demise of Nagamma, and till his death. It is contended that, the plaintiff’s father passed away on 10.12.1993. The plaintiff, being the legal heir, succeeded to the estate - 4 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 late H.Gangadhar, and as such, his rights devolved upon him. The plaintiff is entitled to succeed his father’s half share in the plaint property, which was in joint possession. There are two coconut trees and one building /farmhouse, in which a portion is in occupation of the tenants in the plaint property. It is contended that, the defendant started a hostile attitude towards the plaintiff, and as such, she alone is appropriating all the income from ‘A’ schedule property without giving any share to the plaintiff. The plaintiff and defendant are in joint possession and enjoyment of the same. The plaintiff issued a legal notice dated 25.7.1994 to the defendant. The defendant refused to accept the notice. The legal notice was returned unserved. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 3.1 The defendant filed a written statement denying the averments made in the plaint. It is denied that the plaintiff is the son of the late Gangadhara. It is contended that, H.Gangadhara is the younger brother of Nagamma, - 5 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 who died issueless. It is contended that, the name of the defendant’s mother is not Yamuna alias Rajamma. The defendant is the daughter of one Maire Hengsu, the elder sister of Nagamma. The plaintiff is unaware of the names of the defendants family members. This is sufficient to show that the plaintiff is in no way concerned with the suit property. The plaintiff filed the suit claiming that he is the son of Ganghadara. The plaintiff has been set up by one Smt. Vrinda S. Rao, who is unauthorisedly occupying a portion of the premises situated in the suit property. It is further contended that the suit property had been purchased by Smt. Nagamma, the maternal aunt of the defendant from one Smt. Yamuna Hengsu as per the sale deed dated 12.5.1966. During the life time of Nagamma, she was in possession and enjoyment of this property. Smt.Nagamma had an elder sister Maire Hengsu, i.e. the mother of the defendant and a brother by name H. Ganghadar. The said H. Gangadhar had no issues, and Nagamma had no issues. The defendant is the daughter of Nagamma's elder sister, Maire Hengsu. It is further - 6 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 contended that, on 26.11.1970, the said Nagamma, when she was in a sound, disposing state of mind, had executed a Will bequeathing R.S.No.387, T.S.No.363, Bagayat, Mulgeni land, measuring 11.50 cents with all the building in favour of the defendant. Nagamma died in 1987 and thereafter, based on the said Will, the defendant became the owner of the said property, and enjoying the property by virtue of the aforesaid registered Will. The defendant performed the rites of H.Ganghadara. H.Gandhara's wife, Smt. Janaki, died issueless. It is denied that, Smt. Nagamma died as a spinster. It is contended that the plaintiff is not the son of H.Ganghadara. Hence, the question of the plaintiff inheriting the schedule property does not arise. It is contended that the plaintiff is not entitled to claim any share in the suit property. It is contended that, rent controller had passed an order of eviction against Vrinda S Rao, and to save her, the present suit is filed by the plaintiff. It is contended that the defendant had not received any notice from the plaintiff. Hence, prays to dismiss the suit. - 7 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 3.2. The trial Court, based on the pleadings of the parties, framed the following issues: ISSUES 1. Whether plaintiff proves that he is a legal heir to the deceased Nagamma and he succeed plaint schedule property under Hindu Succession Act, 1956? 2. Whether plaintiff is entitled ½ share in the suit schedule property? 3. Whether defendant proves that the plaintiff is not the son of Ganghadhar and she is not the daughter of Yamuna @ Rajamma as alleged in para 3 of her written statement? 4. Whether defendant proves that the deceased Nagamma had executed a Registered Will in her favour and she became the owner by virtue of Will? 5. What order or decree? 3.3. The plaintiff, to substantiate his case, examined himself as PW.1, examined 5 other witnesses as PWs.2 to 6, and marked 23 documents. On the other hand, the defendant, examined herself as DW.1, also examined two other witnesses as DWs. 2 and 3, and marked documents Exs.D.1 to D.16. The trial Court, after recording the evidence, hearing on both sides, and on assessing the - 8 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 verbal and documentary evidence, answered issue nos.1, 2 and 4 in the negative, issue No.3 in the affirmative, and dismissed the suit of the plaintiff, vide judgment dated 2.3.1996. 3.3. The plaintiff, aggrieved by the judgment and decree passed in O.S.No.607/94 preferred an appeal in R.A.No.347/2004 on the file of the II Additional District and Sessions Judge, D.K. Mangalore. The first Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration : (i) Whether the original plaintiff Ravindra Boloor has proved that he being the son of H. Gangadhara is entitled to half share in the plaint 'A' schedule property? (ii) Whether the impugned judgment and decree by which the suit of the plaintiff has been dismissed needs interference in this appeal? (iii) What Order? The first Appellate Court, on reassessing the verbal and documentary evidence, answered points No.1 and 2 in the affirmative and point No.3 as per the final order. The first appellate Court allowed the - 9 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 appeal and the judgment and decree passed by the trial Court was set aside vide judgment dated 31.03.2016. The suit of the plaintiff was decreed. It was held that the plaintiff is entitled to a half share in the suit property. The defendant, aggrieved by the judgment and decree passed in R.A.No.347/2004, filed this Regular Second Appeal. 4. Heard the arguments of the learned counsel for the defendant and the plaintiff. 5. Learned counsel for the defendant submits that the plaintiff filed a suit for partition and separate possession. It is a settled law that, in a suit for partition and separate possession, the plaintiff is required to prove the relationship with H Gangadhara. He submits that, the defendant has denied that the plaintiff is not the son of H.Gangadhar and the said Gangadhar died issueless. The said aspect was not adequately considered by the first Appellate Court, and recorded its finding that, the plaintiff is the legitimate child of H.Gangadhar. He also submits - 10 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 that, if the plaintiff is the son of H.Gangadhar, the plaintiff must know the names of the family members. Admittedly, the plaintiff did not know the names of the family members of the defendant, and the plaintiff to establish that, he is the son of H.Gangadhar has not produced any records, except the oral evidence. He also submits that the evidence of PWs. 2 to 6 does not prove that the plaintiff is the son of deceased H.Gangadhar. The plaintiff has not produced any records showing that the marriage of H.Gangadhar with Kalyani was performed. He also submits that Nagamma had married twice, to Jatti Pujari and Thimmayya, and that, she died issueless. After the death of Nagamma, property devolved upon H.Gangadhar and the defendant’s mother. H.Gangadhar also died issueless. The defendant’s mother succeeded to the property of the deceased Nagamma as a Class II heir. The Plaintiff is not entitled to a share in the suit schedule property, and the first Appellate Court has committed an error in - 11 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 disturbing the judgment and decree passed by the trial Court. Hence, on these grounds, he prays to allow the appeal. 6. Per contra, the learned counsel for the plaintiff submits that, the plaintiff is the son of H.Gangadhara and that, H.Gangadhara is the brother of Smt.Nagamma. Nagamma died as a spinster. After the demise of Nagamma, brother and sister succeeded to the properties as per Section 15 of the Hindu Succession Act, 1956. H.Gangadhar, and the defendant’s mother, each is entitled to a half share. He submits that the defendant’s mother is entitled to a half share. He further submits that H.Gangadhar was married to Smt.Janaki and thereafter, married Smt.Kalyani i.e., the plaintiff’s mother. After the demise of H.Gangadhar, the plaintiff succeeded to a half share of H.Gangadhar in the suit property as per Section 8 of the Hindu Succession Act, 1956. The First Appellate Court was justified in decreeing the suit of the plaintiff. He also submits that the impugned - 12 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 judgment passed by the first Appellate Court is just, and proper and does not call for any interference. Hence, on these grounds, prays to dismiss the appeal. 7. This Court admitted the appeal to consider the following substantial question of law : “Whether the Lower Appellate Court is justified in setting aside the judgment and decree passed by the trial Court, wherein the trial Court after examining the evidence of the parties has clearly held that the plaintiff-Sri Ravindra Boloor has failed to prove that he is the son of late H.Gangadhar?” 8. Perused the records, and considered the submissions of the learned counsel for the parties. Re. Substantial Question of Law : 9. The plaintiff to prove his case, examined himself as PW.1. He reiterated the plaint averments in the examination-in-chief, and produced certain documents. Ex.P1 is the date of a birth certificate issued by the Government High School, Mangalore, which discloses that the plaintiff was born on 15.9.1936. as per admission - 13 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 No.7377 dated 7.6.1946. The said certificate was issued on 7.3.1994 i.e., just before filing the suit. Ex.P2 is the share certificate issued by the Boloor Co-operative Credit Society Ltd., which discloses that the plaintiff had purchased the shares from the said Society and the father’s name is shown as H.Gangadhara, Ex.P3 is the demand notice issued by the Karnataka Bank to the plaintiff demanding amount from the plaintiff, Ex.P4 is the Passbook issued by the Karnataka Bank, standing in the name of the plaintiff, Ex.P5 is the Passbook issued by the Canara bank, standing in the name of the plaintiff which discloses that the plaintiff had an account in the said Bank, Ex.P6 is the marriage invitation card of the plaintiff wherein, it discloses that he married on 10.2.1963 with Gangakshi, Ex.P7 is the notice of the loan issued by the Canara bank to the plaintiff, Ex.P8 is the copy of reply by the defendant to the legal notice dated 22.12.1993 to the counsel for the plaintiff on 11.1.1994, wherein the defendant has contended that the defendant is not aware whether the plaintiff is the eldest son of H Gangadhar, and - 14 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 does not admit the alleged right over the properties, and it is also contended that, the defendant is enjoying her properties as an absolute owner and no person is having any right whatsoever over it, Ex.P9 is the copy of the legal notice got issued by the plaintiff to the defendant on 16.8.1994, calling upon the defendant to partition the property into two equal shares within 7 days. The plaintiff had issued another notice dated 25.7.1994 to the defendant demanding for partition and separate possession as per Ex.P.9 and Ex.P9(a) is the copy of Ex.P9, Ex.P10 is the certified copy of the order of the Land Tribunal dated 16.10.1978, Ex.P.11 is the RTC extract which discloses that the land bearing Sy.No.663 stands in the name of defendant, Ex.P.12 is the legal notice dated 12.04.1985 issued on behalf of Guruvappa K Banjan terminating the tenancy of the plaintiff, and calling upon the plaintiff to handover the vacant possession, Ex.P13 is the certified copy of the legal notice dated 27.08.1985 issued by one Smt.Devaki Hengsu w/o. late Babu Moolya to the plaintiff calling upon the plaintiff to handover the - 15 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 vacant possession and to pay the arrears of rent, Ex.P14 is the certified copy of the petition filed under Section 21(1)(a) of the Karnataka Rent Control Act in HRC 256/1985, between Guruvappa Banjan and the plaintiff, Ex.P15 is the deposition of the plaintiff in HRC 256/1985, Ex.P16 is the certified copy of the order in HRC 256/1985 dated 18.06.1987, wherein the petition filed by Guruvappa was allowed, and the plaintiff was directed to pay arrears of rent, Ex.P17 is the certified copy of the decree in HRC 256/1985, Ex.P18 is the certified copy of the order in Rent Revision Petition 160/1987 between the plaintiff, and Guruvappa, wherein the District Judge dismissed the revision petition filed by the plaintiff, Ex.P19 is the certified copy of the decree in Rent Revision Petition 160/1987, Ex.P20 is the receipt issued by Gokarnath Temple in favour of the plaintiff for Rs.65/- dated 21.12.1993, Ex.P21 is the endorsement issued by the City Corporation wherein the Health Officer, City Corporation, Mangalore, issued certificate stating that there are no records available regarding the birth certificate of the - 16 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 plaintiff, and the same was not registered (Form No.18), Ex.P22 is also Form No.18, Ex.P23 is the receipt book. 10. During the course of cross examination of PW.1, it was suggested that, the plaintiff is not the son of H.Gangadhar, and he has stated that the mother of the plaintiff by name Kalyani was not the wife of H.Gangadhar. The said suggestion was denied. To prove his case that, H.Gangadhar married H.Kalyani, the plaintiff has not produced any records showing that his mother is the wife of H.Gangadhar. Further, to prove that he is the son of H.Gangadhar, produced the birth certificate marked as Ex.P.1. The said certificate was obtained by the plaintiff just before filing the suit. Further, exhibits P.21 is the endorsement issued by the City Corporation, Mangalore, which discloses that the birth of the plaintiff was not registered and further, they have issued an endorsement indicating that there are no records to prove registration of birth of the plaintiff, and further, the plaintiff has also produced the legal notice issued by the landlord which discloses that the plaintiff was in possession of the - 17 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 properties as a tenant. The said document does not prove that the plaintiff is the son of deceased H.Gangadhar. The defendant has denied that the plaintiff is the son of H.Gangadhar. 11. The plaintiff, to prove his case that, he is the son of H.Gangadhar, examined Sri Sheena Shetty as PW.2. She deposed that the plaintiff is the son of H.Gangadhar. However, during the course of cross examination, she has stated that, he does not know the parents of late H.Gangadhar or his sisters, and brother, and she pleaded ignorance that late H.Gangadhar had a wife by name Janaki and she does not know where H.Gangadhar was residing at the time of his death. The plaintiff also examined four witnesses as PWs.3 to 6. They have deposed in the same line of PWs.1 and 2. 12. PW.1 has specifically admitted that, he has no document that Kalyani was the wife of H.Gangadhar, and further, the plaintiff has not produced any document to show/prove that he is the son of the deceased - 18 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 H.Gangadhar. H.Gangadhar worked as a Dafedar in the Court, till his retirement. The plaintiff did not clarify the fact that, after the demise of H.Gangadhar, who was receiving his pension. 13. In rebuttal, the defendant examined herself as DW.1. She has reiterated the written statement averments in the examination-in-chief and contended that the plaintiff is not the son of late H.Gangadhar, and he is in no way concerned to the family of Nagamma, H.Gangadhar and the defendant. The defendant, to prove her defence, has produced a document at Ex.D.1 which is the certified copy of the death certificate of Smt Nagamma, Ex.D2 is the death certificate of H.Gangadhar, Ex.D3 is the death certificate of Janaki (wife of H.Gangadhar), Ex.D4 is the Will (original) executed by Smt. Nagamma in favour of the defendant and the signatures of Nagamma are marked on the Will as Exs.D4(a) to (f), and the signatures of the attesting witnesses are marked as Ex.D4(g), Ex.D5 is the RTC extract of the land in Sy.No.663 standing in the name - 19 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 of the defendant, Smt. Sunanda, which discloses that based on the Will executed by Nagamma, the name of the defendant was entered in the revenue records, Ex.D6 is the copy of the proceedings of the meeting of the Mangalore City Corporation, which discloses that the said property was standing in the name of Nagamma. Subsequently, it was transferred in the name of the defendant, Ex.D7 is Form No.10, declaring Nagamma as the occupant of the land in Sy.No.663, Ex.D8 is the pension payment order of H.Gangadhar, which discloses that Smt.Janaki, was drawing the pension, Ex.D9 is the Original Will executed by H.Gangadhar in favour of the defendant, Ex.D9 (a) to (d) are signatures of H.Gangadhar on the Will (Ex.D9), Ex.D10 is Form No.15 standing in the name of H.Gangadhar, which discloses that Gangadhar had paid an amount of Rs.44/-, Ex.D11 is Certified Copy of order in W.P.No.27816/1994 dated 26.09.1994 filed by one Vrinda S Rao against the Deputy Commissioner, Rent Controller and the defendant, and in the said writ petition, an order was passed on I.A.II disposing of the application, - 20 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 Ex.D12 is the letter dated 28.09.1978, issued by Gokarnanath Temple to H.Gangadhar which discloses that Commissioner has accorded permission to construct the Kere Deepa Katte in memory of his wife late Smt.Janaki Bai, Ex.D13 is the letter dated 06.03.1979 issued by Gokarnanath Temple to H.Gangadhar, informing him of the inauguration of the Vasantha Mantapa built in memoray of his wife Smt.Janaki Bai, Ex.D.14 to D.16 are the photographs. 14. During the cross examination, it is suggested that the plaintiff is the son of the late Gangadhar. The said suggestion was denied by DW.1. The defendant, to prove the execution of the Will, examined the attesting witness to Ex.D4 as DW.2 who deposed that Nagamma executed a Will in favour of the defendant bequeathing the suit schedule property, and he identified the thumb impression of Nagamma marked at D.4, and the signature of DW.2 is marked as D.4(g). - 21 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 15. Further, a perusal of Exhibit D.8, discloses that H.Gangadhar had a wife by name Janaki and not Kalyani. The plaintiff has failed to establish that H.Gangadhar married Kalyani. On the other hand, records disclose that H.Gangadhar had a wife by name Janaki. 16. The records, discloses that the trial Court has recorded its findings that the plaintiff has failed to establish his relationship with deceased Nagamma and further, the plaintiff has failed to establish that he is the son of H.Gangadhar. Hence, when the plaintiff has failed to prove that, he is the son of H.Gangadhar, the plaintiff is not entitled to any share in the suit schedule property. The trial Court, after considering the material on record, has rightly held that the plaintiff has failed to prove that, he is the legal heir of the deceased Nagamma and he succeeded the plaint schedule property under the Hindu Succession Act, 1956, and also held that, the plaintiff is not entitled to a share in the suit schedule property. Further held that, the defendant has proved that, the plaintiff is not the - 22 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 son of H.Gangadhar and she is not the daughter of Yamuna @ Rajamma, as alleged in para 3 of her written statement, and the defendant has failed to prove that, the deceased Nagamma had executed a registered Will in her favour and she became the owner based on the Will and thereby dismissed the suit of the plaintiff. 17. The First Appellate Court, has not adequately re- appreciated the entire evidence placed on record. Though the First Appellate Court has recorded a finding that, from the evidence of PWs. 1 to 6, it is clear that, although late H.Gangadhar had legally not married the mother of the plaintiff Smt.Kalyani, but he used to live with the plaintiff, and his mother Smt.Kalyani, and on account of the physical relationship between late H.Gangadhar and the mother of the plaintiff, the plaintiff was born. To establish that, they were living together, the plaintiff has not produced any relevant document i.e., the ration card, voters ID etc., and further, the First Appellate Court, has recorded a finding that, there are no documents to show - 23 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 that the plaintiff’s mother was a legally wedded wife of the plaintiff. When the First Appellate Court has recorded a finding as above, it could have confirmed the judgment and decree of the trial Court. On the contrary, the First Appellate Court has allowed the appeal, and set aside the judgment and decree passed by the trial Court and decreed the suit of the plaintiff. The judgment and decree passed by the First Appellate Court is contrary to the records. The impugned judgment is arbitrary and erroneous. The same is liable to be set aside. 18. In view of the above discussion, I answer substantial question of law in the negative, and accordingly, I pass the following order : ORDER i) The appeal is allowed; ii) The judgment and decree passed by the II Additional District and Sessions Judge, D.K.Mangaluru, is set aside; - 24 - NC: 2025:KHC:10572 RSA No. 1021 of 2016 iii) The judgment and decree passed in O.S.No.607/1994 dated 2.3.1996 on the file of the IV Additional Munsiff, Mangalore, D.K. is restored. No order as to the costs. Sd/- (ASHOK S.KINAGI) JUDGE rs