- 1 - NC: 2025:KHC:13349 RSA No. 1725 of 2023 C/W RSA No. 2218 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1725 OF 2023 (PAR/POS) C/W REGULAR SECOND APPEAL NO. 2218 OF 2023 (PAR) IN RSA No. 1725/2023 BETWEEN: 1. SMT. LAKSHMAMMA W/O. LATE NANJEGOWDA AGED ABOUT 71 YEARS 2. NINGAMMA D/O. LATE NANJEGOWDA AGED ABOUT 49 YEARS 3. SUMITHRA D/O. LATE NANJEGOWDA AGED ABOUT 46 YEARS 4. KOMALA D/O. LATE NANJEGOWDA AGED ABOUT 44 YEARS 5. SWAMY S/O. LATE NANJEGOWDA AGED ABOUT 40 YEARS ALL ARE R/AT BANDIHALLI VILLAGE KASABA HOBLI CHANNARAYAPATNA TALUK HASSAN DISTRICT-573 201. …APPELLANTS (BY SRI. SATHISHA .D.J, ADVOCATE) Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:13349 RSA No. 1725 of 2023 C/W RSA No. 2218 of 2023 AND: 1. MANI D/O. LATE NANJEGOWDA AGED ABOUT 32 YEARS R/AT BYADARAHALLI VILLAGE BAGURU HOBLI CHANNARAYAPATNA TALUK HASSAN DISTRICT-573 201. 2. GOWRAMMA W/O. LATE NANJEGOWDA AGED ABOUT 66 YEARS 3. LAKKAPPA S/O. LATE NANJEGOWDA AGED ABOUT 43 YEARS 4. RAJANNA S/O. DYAVEGOWDA AGED ABOUT 43 YEARS R2 TO R4 ARE R/AT MALLENAHALLI VILLAGE KASABA HOBLI CHANNARAYAPATNA TALUK HASSAN DISTRICT-573 201. 5. LAKSHMI W/O. SATHISH AGED ABOUT 36 YEARS R/AT JINNENAHALLI VILLAGE SHANTHIGRAMA HOBLI HASSAN TALUK HASSAN DISTRICT-573 201. 6. VENKATESH S/O. SIDDAGANGAIAH AGED ABOUT 47 YEARS R/AT KALLESOMANAHALLI VILLAGE BAGURU HOBLI - 3 - NC: 2025:KHC:13349 RSA No. 1725 of 2023 C/W RSA No. 2218 of 2023 CHANNARAYAPATNA TALUK HASSAN DISTRICT-573 201. …RESPONDENTS THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 03.07.2023 PASSED IN RA NO. 59/2022 ON THE FILE OF THE 4TH ADDITIONAL DISTRICT AND SESSIONS JUDGE HASSAN, SITTING AT CHANNARAYAPATNA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 08.08.2022 PASSED IN OS NO. 15/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC CHANNARAYAPATNA. IN RSA NO. 2218/2023 BETWEEN: 1. SRI. VENKATESH S/O SIDDAGANGAIAH AGED ABOUT 47 YEARS R/AT KALLESOMANAHALLI VILLAGE BAGURU HOBLI, CHANNARAYAPATNA TALUK HASSAN DISTRICT-573 201. ...APPELLANT (BY SRI. KARUNAKARA, ADVOCATE) AND: 1. SMT. LAKSHMAMMA W/O LATE NANJEGOWDA AGED ABOUT 71 YEARS 2. NINGAMMA D/O LATE NANJEGOWDA AGED ABOUT 49 YEARS 3. SUMITHRA D/O LATE NANJEGOWDA AGED ABOUT 46 YEARS - 4 - NC: 2025:KHC:13349 RSA No. 1725 of 2023 C/W RSA No. 2218 of 2023 4. KOMALA D/O LATE NANJEGOWDA AGED ABOUT 44 YEARS 5. SWAMY S/O LATE NANJEGOWDA AGED ABOUT 40 YEARS ALL ARE R/AT BANDIHALLI VILLAGE KASABA HOBLI CHANNARAYAPATNA TALUK HASSAN DISTRICT-573 201. 6. MANI D/O LATE NANJEGOWDA AGED ABOUT 32 YEARS R/AT BYADARAHALLI VILLAGE BAGURU HOBLI CHANNARAYAPATNA TALUK HASSAN DISTRICT-573 201. 7. GOWRAMMA W/O LATE NANJEGOWDA AGED ABOUT 66 YEARS 8. LAKKAPPA S/O LATE NANJEGOWDA AGED ABOUT 43 YEARS 9. RAJANNA S/O DYAVEGOWDA AGED ABOUT 43 YEARS R2 TO R4 ARE R/AT MALLENAHALLI VILLAGE KASABA HOBLI CHANNARAYAPATNA TALUK HASSAN DISTRICT-573 201. 10. LAKSHMI W/O SATHISH AGED ABOUT 36 YEARS - 5 - NC: 2025:KHC:13349 RSA No. 1725 of 2023 C/W RSA No. 2218 of 2023 R/AT JINNENAHALLI VILLAGE SHANTHIGRAMA HOBLI HASSAN TALUK HASSAN DISTRICT-573 201. ...RESPONDENTS THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 03.07.2023 PASSED IN RA.NO.59/2022 ON THE FILE OF THE 4TH ADDITIONAL AND DISTRICT AND SESSIONS JUDGE, HASSAN, (SITTING AT CHANNARAYAPATNA), DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 08.08.2022 PASSED IN OS.NO.15/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, CHANNARAYAPATNA. THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT These appeals are arising out of a same judgment and decree dated 03.07.2023 passed in R.A.No.59/2022 by learned IV Additional District and Sessions Judge, Hassan, sitting at Channarayapatna and the judgment and preliminary decree dated 08.08.2022 passed in O.S.No.15/2016 by the learned Senior Civil Judge, Channarayapatna. - 6 - NC: 2025:KHC:13349 RSA No. 1725 of 2023 C/W RSA No. 2218 of 2023 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were defendant Nos.4 to 8; respondent No.1 was the plaintiff, and respondents Nos.3 to 6 were the other defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that one Nanjegowda was a permanent resident of Bandihalli village. He married Gowramma i.e., defendant No.1 and since Gowramma had not begotten any children, he married defendant No.4, Lakshmamma, as his second wife. After he married his second wife, the first wife gave birth to three children; the second wife gave birth to four children. Because of family differences, Nanjegowda sent defendant No.1 to her parent's house, i.e., Mallenahalli village. Nanjegowda continued to stay with the second wife i.e., defendant No.4 in Bandihalli village. However, - 7 - NC: 2025:KHC:13349 RSA No. 1725 of 2023 C/W RSA No. 2218 of 2023 Nanjegowda used to visit Mallenahalli village and take care of his first wife and his children. The plaintiff and defendant Nos.2 and 3 are the children born to Nanjegowda through his first wife Gowramma and defendants Nos.5 to 8 are the children born through his second wife i.e., defendant No.4. 3.1. It is contended that the plaintiff and the defendants are the members of Hindu undivided joint family, and no partition is effected between the parties to the suit. It is contended that after the death of plaintiff’s father, defendant No.4 mutated her name regarding the plaint schedule properties, by way of pouthi khata, without the knowledge of plaintiff and others. Hence, the plaintiff demanded partition and separate possession. The defendants refused to effect the partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, she prays to decree the suit. - 8 - NC: 2025:KHC:13349 RSA No. 1725 of 2023 C/W RSA No. 2218 of 2023 3.2. The trial Court issued a summons. Other defendants appeared except defendants No.2, 3 and 9. Despite service of notice, defendants No.2, 3 and 9 did not appear, hence they were placed exparte. 3.3. Defendant Nos.4 to 8 filed a written statement contending that the suit filed by the plaintiff is not maintainable in law or facts. Defendants Nos.4 to 8 denied the averments made in the plaint. It is contended that defendant No.4 is the legally wedded wife of deceased Nanjegowda and defendant Nos.5 to 8 are the children of deceased Nanjegowda through defendant No.4. Except defendant Nos.4 to 8, there are no other legal hairs. It is denied that suit schedule properties are the ancestral joint family properties of the plaintiff and the defendants. It is contended that 3 daughters of Nanjegowda filed a suit in O.S.No.73/2013, and it was ended in a compromise, and a compromise decree dated 07.02.2013 was drawn. The plaintiff has no rights whatsoever over the suit schedule - 9 - NC: 2025:KHC:13349 RSA No. 1725 of 2023 C/W RSA No. 2218 of 2023 properties. Hence, prays to dismiss the suit against defendant Nos.4 to 8. 3.4. Defendant No.1 filed a separate written statement admitting the relationship between the plaintiff and the defendants and admits the Genealogical tree as correct. It is contended that the plaintiff and the defendants are the members of a Hindu joint family, and no partition is effected. Hence, prays to decree the suit of the plaintiffs. 3.5. The trial Court, based on the pleadings, framed the issues and additional issue. 3.6. The plaintiff, to substantiate her case, examined herself as PW.1, examined one witness as PW.2, and marked 12 documents as Exs.P1 to 12. On the other hand, defendant No.8 was examined as DW.1, and defendant No.1 examined as DW.2, and marked 14 documents as Exs.D1 to 14. The trial Court, on the assessment of verbal and documentary evidence, decreed - 10 - NC: 2025:KHC:13349 RSA No. 1725 of 2023 C/W RSA No. 2218 of 2023 the suit of the plaintiff with costs, and it is declared that the plaintiff is entitled to partition and separate possession of 1/8 + 1/9 of 1/8th share of her deceased father, late Nanjegowda, in all the suit schedule properties by metes and bounds. Defendant Nos.4 to 8 are directed to put the plaintiff in possession and enjoyment of her 1/8 + 1/9 of 1/8th share of her deceased father late Nanjegowda in all the suit schedule properties by effecting division of properties by metes and bounds. Consequently, the registered sale deed dated 03.11.2014 executed by defendants Nos.4 to 8 in favour of defendant No.9 is declared void and is not binding on the plaintiff's rights. It is further ordered that a compromise decree passed in O.S.No.73/2013 on the file of learned Principal Civil Judge and JMFC, Channarayapatna, arising out of the collusive compromise entered between defendant Nos.4 to 8 with the father of the plaintiff and defendant Nos.2, 3, 5 to 8 by late Nanjegowda during his lifetime is not binding on the plaintiff’s share of 1/8 + 1/9 of 1/8th of her deceased father late Nanjegowda in respect of all the suit schedule - 11 - NC: 2025:KHC:13349 RSA No. 1725 of 2023 C/W RSA No. 2218 of 2023 properties and the plaintiff is at liberty to seek mesne profits, by way of enquiry in separate proceedings, by preferring a petition under Order 20 Rule 12 of CPC. 3.7. Defendant Nos.4 to 8, aggrieved by the judgment and preliminary decree passed in O.S.No.15/2016, preferred an appeal in R.A.No.59/2022 on the file of learned IV Additional District and Sessions Judge, Hassan, sitting at Channarayapatna, Hassan and defendant No.9 filed a cross objection under Order 41 Rule 22 of CPC challenging the findings recorded in O.S.No.15/2016. 3.8. The First Appellate Court, on re-assessing the verbal and documentary evidence, dismissed the appeal and confirmed the judgment and preliminary decree passed in O.S.No.15/2016 with a modification that defendant Nos.2, 3 and 5 to 8 each are entitled to 1/8th + 1/9th share in the share of their deceased father Nanjegowda and defendant Nos.1 and 4 each are entitled to 1/9th share in the share of the deceased husband - 12 - NC: 2025:KHC:13349 RSA No. 1725 of 2023 C/W RSA No. 2218 of 2023 Nanjegowda in the suit schedule properties subject to the condition if they pay the necessary court fee and cross- appeal filed by dependent No.9 was dismissed. 3.9. Defendants No.4 to 8 were aggrieved by the impugned judgments filed RSA No.1725/2023, and defendant No.9 was aggrieved by the impugned judgment filed a second appeal in RSA No.2218/2023. 4. Heard the arguments of the learned Counsel for defendant Nos.4 to 8 and learned counsel for defendant No.9. 5. Learner Counsel for defendant Nos.4 to 8 submits that the plaintiff is not a daughter of late Nanjegowda. Defendant No.4 is the wife of deceased Nanjegowda, and defendant Nos.5 to 8 are the children of Nanjegowda through defendant No.4. The plaintiff has not produced any records to establish her relationship with the deceased Nanjegowda. The Courts below have committed an error in granting a share to the plaintiff. He also - 13 - NC: 2025:KHC:13349 RSA No. 1725 of 2023 C/W RSA No. 2218 of 2023 submits that the suit schedule properties are the self- acquired properties of deceased Nanjegowda. The plaintiff is not entitled to share in the suit schedule properties. Hence, he prays to allow the appeal. 6. Learned counsel for defendant No.9 submits that defendant No.9 could not participate in the proceedings before the trial court. He submits that the trial court has not provided an opportunity to defendant No.9 to participate in the proceedings. Hence, he submits that the judgment and decree passed by the Courts below are in violation of the principles of natural justice. Hence, on these grounds, he prays to allow the appeal filed by defendant No.9. 7. Perused the records and considered the submissions of the learned counsel for defendant Nos.4 to 8 and defendant No.9. 8. The plaintiff has filed a suit for partition and separate possession, claiming to be the daughter of late - 14 - NC: 2025:KHC:13349 RSA No. 1725 of 2023 C/W RSA No. 2218 of 2023 Nanjegowda, further, defendant No.4 is the second wife of deceased Nanjegowda, and defendants Nos.5 to 8 are the children born to Nanjegowda through his second wife. It is contended that the plaintiff and the defendants are members of a Hindu joint family, and no partition is effected between the parties to the suit. The plaintiff demanded partition and separate possession, but the defendants refused to effect a partition. To prove that the suit schedule properties are the ancestral properties of the plaintiff and the defendants, the plaintiff has produced the records marked as Exs.P1 to 12. The plaintiff, to prove that she is the daughter of the late Nanjegowda, examined one of the relatives of Nanjegowda, who has deposed that the plaintiff is the daughter of deceased Nanjegowda and she was born through his first wife i.e., defendant No.1 and defendant No.4 is the second wife of Nanjegowda and further he deposed that Nanjegowda had performed his second marriage during the subsistence of his first wife. Hence, the plaintiff is entitled to a share. - 15 - NC: 2025:KHC:13349 RSA No. 1725 of 2023 C/W RSA No. 2218 of 2023 9. During the cross-examination, except suggesting that the plaintiff is not a daughter of deceased Nanjegowda, nothing has been elicited to disbelieve the evidence of PWs.1 and 2. On the other hand, defendant No.8 was examined as DW.1; he reiterated the written statements in the examination-in-chief. To prove the defense, the defendants produced the documents, marked as Exs.D1 to D14 and defendant No.1 was examined as DW.2. She has reiterated the written statement averments in the examination-in-chief. 10. Admittedly, PW.2 is a family member of the Nanjegowda. She has deposed that the plaintiff is the daughter of deceased Nanjegowda. I have perused the entire evidence placed on records by the parties to the suit. When the Court has to confirm the opinion as to the relationship of one person or another, the opinion expressed as to the existence of such relationship by any person, who as a member of the family or otherwise as a person with the special means of knowledge on the subject - 16 - NC: 2025:KHC:13349 RSA No. 1725 of 2023 C/W RSA No. 2218 of 2023 is a relative fact as per Section 50 of the Indian Evidence Act. 11. Both the Courts below rely on the evidence of PW.2 and also the birth certificate produced by the plaintiff, which discloses that the plaintiff is the daughter of deceased Nanjegowda. The plaintiff has also produced a marriage invitation card, which discloses that defendant No.1 is the first wife of deceased Nanjegowda. The defendant Nos.4 to 8, filed a suit against each other and settled the dispute by filing the compromise petition. The plaintiff is not a party to the said suit; the compromise decree passed in the said suit. The compromise decree passed in the said suit is not binding on the plaintiff’s share. The trial court has rightly passed the impugned judgment and the First Appellate Court on re-assessment of oral and documentary evidence has rightly held that the plaintiff is the daughter of Nanjegowda and she is the coparcener. She is entitle to share in the property of the deceased Nanjegowda. - 17 - NC: 2025:KHC:13349 RSA No. 1725 of 2023 C/W RSA No. 2218 of 2023 12. Learned counsel for defendant Nos.4 to 8 submits that the suit schedule properties is the self- acquired properties of the deceased Nanjegowda. If the statement of the learned counsel for defendants Nos.4 to 8 is accepted that the suit schedule properties are the self- acquired property of late Nanjegowda, the plaintiff and the children born through defendant No.4, to Nanjegowda are entitled to an equal share, as per Section 16(3) of the Hindu Succession Act, 1956. 13. Both the Courts below have rightly granted a share to the plaintiff in the suit schedule properties. Though the trial court has issued a summons to defendant No.9, despite the service of the summons, defendant No.9 remained absent. Defendant No.9 has not shown sufficient cause that was prevented him from appearing in the suit. I do not find any error in the impugned judgments and any substantial question of law that arise for consideration in these appeals. 14. Accordingly, I proceed to pass the following: - 18 - NC: 2025:KHC:13349 RSA No. 1725 of 2023 C/W RSA No. 2218 of 2023 ORDER i. The Regular Second Appeals are dismissed. ii. The judgments and decrees passed by the First Appellate Court is confirmed. No order as to the costs. In view of the dismissal of the appeals, I.A.No.1/2023 in RSA No.1725/2023 does not survive for consideration and is accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE SKS