- 1 - NC: 2025:KHC:11197 RSA No. 2101 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 2101 OF 2023 (PAR/POS) BETWEEN: 1. SMT. SARVAMANGALA @ SARVAMMA W/O LATE PANCHAKSHARARI AGED ABOUT 59 YEARS 2. KUMARI HEMALATHA D/O LATE PANCHAKSHARARI AGED ABOUT 41 YEARS 3. DEEPAK S/O LATE PANCHAKSHARARI AGED ABOUT 39 YEARS ALL ARE R/A MADANAYAKANAHALLI VILLAGE DASANAPURA HOBLI BENGALURU NORTH TALUK BENGALURU-562 162. …APPELLANTS (BY SRI. RAJASHEKAR .S, ADVOCATE) AND: 1. SMT. JAGADHAMBA W/O V.C. NAGARAJAIAH D/IO LATE VEERACHAR @ THATAIAH AGED ABOUT 75 YEARS R/A VEEREGOWDANADODDI MADABAL HOBLI MAGADI HOBLI Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:11197 RSA No. 2101 of 2023 RAMANAGARA DISTRICT PIN CODE-561 201. 2. SMT. M.SOWBHAGYA W/O B. JAYANNA AGED ABOUT 66 YEARS R/AT 52/2, 2ND MAIN NGEF LAYOUT, SANJAYANAGAR BANGALORE-560 094. [CAUSE TITLE AMENDED VIDE COUT ORDER DATED 24.07.2024] …RESPONDENTS (BY SRI. R. MANJUNATHA .R, ADVOCATE FOR R1; SRI. KETHAN KUMAR, ADVOCATE FOR R2) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 22.11.2023 PASSED IN RA NO.28/2018 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND CJM, NELAMANGALA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 3.08.2018 PASSED IN OS NO.6/2023 ON THE FILE OF ADDITIONAL CIVIL JUDGE, MANGALORE. 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 appellants challenging the judgment and decree dated 22.11.2023 passed in R.A.No.28/2018 by the learned Additional Senior - 3 - NC: 2025:KHC:11197 RSA No. 2101 of 2023 Civil Judge and JMFC, Nelamangala, and the judgment and preliminary decree passed in O.S.No.6/2003 dated 03.08.2018 by the learned Additional Civil Judge and JMFC, Nelamangala. 2. For convenience, the parties are referred to based on their rankings before the trial court. The appellants were the defendants, and the respondent was the plaintiff. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed the suit against the defendants for partition and separate possession of her half share and also the relief of permanent injunction restraining the defendants from cutting and removing standing trees in the suit schedule properties till the partition is effected by meats and bounds and also sought for a direction to the Deputy Commissioner to effect partition of agricultural lands by metes and bounds. - 4 - NC: 2025:KHC:11197 RSA No. 2101 of 2023 3.1 It is the case of the plaintiff that the suit schedule properties were acquired by her father under a registered partition deed dated 11.02.2002 and he died intestate. After the demise of the plaintiff's father, the plaintiff contended that she and her brother Panchaksharaiah, succeeded to his estate as the only legal heirs of her father. There is no partition effected between them. Further, the plaintiff contended that the suit schedule properties are the ancestral and joint family properties. The plaintiff and defendants are in joint possession. The plaintiff demanded her share in the suit properties with the defendants who had not heeded her request and that the defendants were acting hostile to her interest. As such, she was issued a legal notice dated 30.10.2002, which was duly served on the defendants, and in spite of service of notice, they have not allotted her share. Thus, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Hence prays to decree the suit. - 5 - NC: 2025:KHC:11197 RSA No. 2101 of 2023 3.2 Defendants filed a written statement contending that the suit of the plaintiff is not maintainable. The defendants contended that Lingappa was the propositor of the family and he had four children, namely, M.L. Veeregowda, M.L.Savandappa, M.L.Sadashivaiah and M.L.Veerabhadre Gowda. The plaintiff and the defendants are the family members of Veeregowda. The defendants contended that Veeregowda died, leaving Panchaksharaiah and the plaintiff as his legal heirs. It is further contended that after the demise of Veeregowda, his son Panchaksharaiah was the kartha of the joint family, and he had performed the marriage of the plaintiff by spending a huge amount of money and thereafter, the plaintiff began to reside in the house of her husband at Magadi Taluk. 3.3 It is further contended that no partition is effected between the children of Lingappa. However, after the death of Panchaksharaiah and Veere Gowda, there was a partition on 11.02.2002. It is also contended that the plaintiff ceased to be a member of the joint family in view - 6 - NC: 2025:KHC:11197 RSA No. 2101 of 2023 of her marriage, and she lost her rights in view of the amendment to the provision of the Hindu Succession Act. 1956, they contended that the marriage of the plaintiff took place prior to 1990, and in view of the same, she is not entitled to any share in the suit schedule properties. Accordingly, prays to dismiss the suit of the plaintiff. 3.4 The trial court, based on the pleadings of the parties, framed the following issues. 1) Whether the plaintiff prove that herself and the defendants are the members of joint Hindu family and they are joint owners and in joint possession and enjoyment of the suit schedule properties? 2) Whether the plaintiff prove that the suit schedule properties are the ancestral property, and they are not partitioned? 3) Whether the plaintiff is entitled for partitioned and separate possession of half share in the suit schedule property? 4) What order or decree? - 7 - NC: 2025:KHC:11197 RSA No. 2101 of 2023 3.5 The plaintiff, to substantiate her case, examined herself as PW1, examined two witnesses as PWs.2 and 3 and marked 13 documents as Exs.P1 to P13. On the other hand, defendant No.1 was examined as DW1 and marked 15 documents as Exs.D1 to D15. The Trial court, after recording the evidence, hearing on both sides and on the assessment of oral and documentary evidence, answered issue Nos.1 and 2 in the affirmative, issue No.3 partly affirmative and issue No.4 as per the final order. The suit of the plaintiff was partly decreed. It is declared that the plaintiff is entitled to 1/4th share in item Nos.1 to 13 of the suit schedule properties, and defendants are jointly entitled to 3/4th share in item Nos.1 to 13 of the suit schedule properties. 3.6 The defendants, aggrieved by the judgment and preliminary decree dated 03.08.2018, passed in O.S.No.6/ 2003, preferred an appeal in R.A.No.28/2018 on the file of the Additional Senior Civil Judge and JMFC, Nelamangala. The First Appellate Court, after hearing the learned - 8 - NC: 2025:KHC:11197 RSA No. 2101 of 2023 Counsel for the parties, framed the following points for consideration: 1) Whether the learned trial Court was right in arriving at conclusion that the plaintiff has got notional share in the share of her father? 2) Whether the learned trial Court has rightly granted 1/4th share to the plaintiff over suit schedule properties? 3) Whether the judgment and decree of learned trial Court calls interference of this Court? 4) What order or decree? 3.7 The First Appellate Court, on reassessment of oral and documentary evidence, answered point Nos.1 and 2 in the affirmative and point No.3 in the negative and point No.4 as per the final order. The appeal was dismissed, and the judgment and decree passed by the trial court was confirmed. The defendants, aggrieved by the impugned judgments, filed this regular second appeal. 4. Heard the arguments of the Learned Counsel for the defendants and learned counsel for the plaintiff. - 9 - NC: 2025:KHC:11197 RSA No. 2101 of 2023 5. Learned counsel for the defendants submits that the Courts below have committed an error in granting 1/4th share to the plaintiff, ignoring prior partition, which took place on 11.02.2002. He submits that the Courts below have ignored the proviso to Section 6 of the Hindu Succession Act, 1956, wherein the partition took place prior to the date specified in the amended provision of Section 6 of the Hindu Succession Act, 1956. He further submits that the Courts below have committed an error in ignoring the admission of PW.1 regarding her marriage and a separate residence. He also submits that the plaintiff has not included other members of the family who are necessary and proper parties. He submits that the impugned judgments passed by the Courts are arbitrary, erroneous and the same are liable to be set aside. Hence, he prays to allow the appeal. 6. Per Contra, Learned Counsel for the plaintiff submits that the plaintiff is the coparcener and the suit schedule properties are acquired by her father under a - 10 - NC: 2025:KHC:11197 RSA No. 2101 of 2023 registered partition deed dated 11.02.2002, and he died intestate. The plaintiffs and defendants have succeeded to the properties left by the deceased father. He submitted that as per Section 6 of the Hindu Succession Amendment Act 2005, the plaintiff is entitled to an equal share. He submits that quantum of share granted by the Courts below is lesser. Both the Courts below have rightly considered the material on record, and the judgments and decrees passed by the Courts below are just and proper and do not require any interference by this court. He submits that liberty be reserved to the plaintiff to file a necessary application for modification of share. Hence, prays to dismiss the appeal. 7. This court admitted the appeal on 05.08.2024, to consider the following substantial questions of law. 1) Whether both the courts below were erred in considering Ex.P10- (partition deed dated 11.02.2002)? - 11 - NC: 2025:KHC:11197 RSA No. 2101 of 2023 2) Whether both the courts below were justified in ignoring the proviso of Section 6 of the Hindu Succession Act, 1956? 8. Re-Substantial questions Nos.1 and 2: Substantial questions Nos.1 and 2 are interlinked. Hence, the same are taken together for common discussion to avoid repetition of facts. The plaintiff, to substantiate her case, examined herself as PW1. She reiterated the plaint averments in the examination-in-chief. The plaintiff has produced Ex.P10, which is the certified copy of the partition deed dated 11.02.2002, which discloses that one Lingappa was the original propositus in the family. He had four sons, namely Veere Gowda, Savandappa, Sadashivaiah and Veerabhadre Gowda. In the said Ex.P10, the properties shown are the ancestral properties of the propositus Lingappa and his four sons. The plaintiff, being the daughter of Veere Gowda and legal heirs of him, the brother of plaintiff, Panchaksharaiah and the plaintiff, - 12 - NC: 2025:KHC:11197 RSA No. 2101 of 2023 herself constitute a joint family by birth, and the suit schedule properties are the ancestral properties of the plaintiff and the defendants. The plaintiff and the defendants are members of the Hindu joint family. The plaintiff has proved that the suit schedule properties are the ancestral properties of the plaintiff and the defendants by producing Ex.P10, and it has also been proved that no partition is effected between the plaintiff and the defendants. The Courts below were justified in relying on Ex.P10, and rightly held that the plaintiff is entitled to a share in the suit properties. The plaintiff, being a daughter, is a coparcener as per Section 6 of the Hindu Succession Act, 1956, and she is entitled to an equal share in the same manner as that of a son. 9. The Courts below, considering Section 6 of the Hindu Succession (Amendment) Act, 2005, have rightly passed impugned judgments. The Courts below have concurrently recorded a finding of facts against the defendants. - 13 - NC: 2025:KHC:11197 RSA No. 2101 of 2023 10. The Hon’ble Apex Court in case of VINEETA SHARMA VS. RAKESH SHARMA AND OTHERS reported in AIR 2020 SC 3717 held that the daughter is entitled to an equal share with that of the son. 11. The First Appellate Court held that the plaintiff was not entitled to an equal share. In view of the ratio laid down by the Hon’ble Apex Court in the case of VINEETA SHARMA (referred supra), the plaintiff is entitled to an equal share. The First Appellate Court granted a notional share to the plaintiff, which is incorrect. Hence, the impugned judgments require modification. In view of the above discussion, I answer substantial questions Nos.1 and 2 in the negative. 12. Accordingly, I proceed to pass the following: ORDER i. The appeal is dismissed; ii. The judgments and decrees passed by the Courts below are hereby confirmed. - 14 - NC: 2025:KHC:11197 RSA No. 2101 of 2023 No order as to the costs. Liberty is reserved to the plaintiff to apply before the final decree Court for modification of shares in terms of the ratio laid down by the Hon'ble Apex Court in the case of VINEETA SHARMA (referred supra). If such an application is filed before the final decree proceeding, the court shall consider and pass the appropriate orders. SD/- (ASHOK S.KINAGI) JUDGE sks