- 1 - NC: 2025:KHC:17421 RSA No. 1705 of 2011 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 1705 OF 2011 (PAR) BETWEEN: SRI. NARAYANASWAMY, AGED ABOUT 55 YEARS, S/O.SRI CHOWDAPPA, R/AT KARAMANGALA VILLAGE, KASABA HOBLI, BANGARPET TALUK - 563 114. …APPELLANT [BY SRI C. PATTABIRAMAN, ADVOCATE (PH)] AND: 1. SRI GANGAPPA, AGED ABOUT 57 YEARS, S/O.SRI CHOWDAPPA, R/AT THIPPASANDRA VILLAGE, SAPURU POST, HUTNURU HOBLI, KOLAR DISTRICT - 563 101. 2. SMT. CHINNAKKA, AGED ABOUT 56 YEARS, W/O SRI VENKATESHAPPA, D/O SRI CHOWDAPPA, KARAMANGALA VILLAGE, BANGARAPET TALUK - 563 114. 3. SRI NARAYANAPPA, AGED ABOUT 31 YEARS, S/O SRI VENKATESHAPPA, KARAMANGALA VILLAGE, BANGARAPET TALUK - 563 114. Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka - 2 - NC: 2025:KHC:17421 RSA No. 1705 of 2011 4. SRI MANJUNATHA, AGED ABOUT 27 YEARS, S/O SRI VENKATESHAPPA, KARAMANGALA VILLAGE, BANGARAPET TALUK - 563 114. 5. SRI PILLAPPA, AGED ABOUT 21 YEARS, S/O SRI VENKATESHAPPA, KARAMANGALA VILLAGE, BANGARAPET TALUK - 563 114. 6. SMT. SHANTHAMMA, AGED ABOUT 29 YEARS, W/O SRI VENKATARAMAPPA, D/O CHOWDAPPA, BANORHALLI, VALLAMPALLI, HUTRURU HOBLI, BANGARAPET TALUK - 563 114. 7. SMT MUNEAMMA, AGED ABOUT 46 YEARS, W/O SRI KRISHNAPPA, D/O CHOWDAPPA, THIPPASANDRA VILLAGE, SAPUR POST, HURTURU HOBLI, KOLAR TALUK - 563 101. 8. SMT MUNIAMMA, AGED ABOUT 61 YEARS, W/O SRI CHOWDAPPA, M/O SRI NARAYANASWAMY, KARAMANGALA VILLAGE, BANGARAPET TALUK - 563 114. 9. SRI MUNIVENKATAPPA, AGED ABOUT 49 YEARS, S/O SRI CHOWDAPPA, KARAMANGALA VILLAGE, BANGARAPET TALUK - 563 114. 10. SRI MUNIAPPA, AGED ABOUT 59 YEARS, S/O SRI CHOWDAPPA, - 3 - NC: 2025:KHC:17421 RSA No. 1705 of 2011 KARAMANGALA VILLAGE, KASABA HOBLI, BANGARAPET TALUK - 563 114. 11. SRI MENASAPPA, AGED ABOUT 36 YEARS, S/O SRI VENKATESHAPPA, KARAMANGALA VILLAGE, BANGARAPET TALUK - 563 114. …RESPONDENTS [BY SRI MUSHTAQ AHMED & SRI SURESH M., ADVOCATES FOR R2, R4 TO R7 AND R10 TO R11 (AB); NOTICE TO R1, R3, R8 & R9 - SERVED & UNREPRESENTED] THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 5.8.2009 PASSED IN R.A.NO.16/2003 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN) KGF., ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 2.12.2002 PASSED IN O.S.NO.134/1998 ON THE FILE OF THE II ADDL. CIVIL JUDGE, (JR.DN) KGF. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI ORAL JUDGMENT Challenging judgment and decree dated 05.08.2009 passed by Principal Civil Judge (Sr.Dn.), KGF, in R.A.no.16/2003, this appeal is filed. 2. Brief facts as stated are, appellant was plaintiff in OS no.134/1998 filed for partition and separate possession of properties bearing Sy.no.120/2, measuring 1 Acre 16 Guntas; Sy.no.144/5, measuring 26 Guntas; Sy.no.87, measuring 2 - 4 - NC: 2025:KHC:17421 RSA No. 1705 of 2011 guntas; Sy.no.134 measuring 2 Acres 38 guntas, building and premises measuring ankanas, Mangalore tiled house, measuring 4 ankanas are situated at Karamangala village, Kasaba Hobli, Bangarpet Taluk (for short 'suit properties'); for permanent injunction, restraining defendants, etc. from interfering with peaceful possession and enjoyment of legitimate share, for directing revenue authorities to make necessary corrections by deleting names of defendants no.2 and 3; directing defendants to render accounts of mesne profits from suit properties, etc. 3. In plaint, it was stated plaintiff was son of defendant no.1 and suit properties originally belonged to his grandfather Muniyappa. And after his death, his legal heirs ie., defendant no.1, Smt.Muniyamma and Smt.Chikkachandramma inherited them. Though defendant no.1 was karta of Hindu Undivided Family, he did not have exclusive rights over suit properties. Thus plaintiffs and defendants were in joint possession and enjoyment of suit properties till today. 4. It was stated, when plaintiff noticed revenue records of suit properties were illegally mutated in name of defendants no.2 and 3, ignoring plaintiff's claim as son of - 5 - NC: 2025:KHC:17421 RSA No. 1705 of 2011 defendant no.1 and grandson of Muniyappa and defendants intended to dispose suit properties, suit was filed. 5. On appearance, defendants no.2 and 3 filed written statement denying plaint averments and specifically denying plaintiff was son of defendant no.1. Plaint genealogical tree was disputed. They stated, Muniyappa had two children - Muniyamma and Chowdappa (defendant no.1). Muniyamma had one child – Menasamma. Defendant no.1 married Munivenkatamma and had children namely, Venkateshappa, Muniappa (defendant no.2) and Chinnamma. Amongst them, Chinnamma married Krishnappa and Venkateshappa died 11 years earlier leaving behind Menasappa, Narayanaswamy, Manjunath, Pillappa and Shantamma w/o Venkataramappa. It was thus stated, children of Venkateshappa and his wife were legal heirs and successors to his estate. 6. Such being case, defendant no.1 deserted his family, developed illicit intimacy with Smt.Muniamma of Siddanahalli village even though she was married to Pillappa, but residing with her parents at Karamangala village. It was stated there was no marriage between defendant no.1 and Smt.Muniamma. Hence, plaintiff was not legitimate son of - 6 - NC: 2025:KHC:17421 RSA No. 1705 of 2011 defendant no.1. It was stated, apart from plaintiff, there were other children i.e. Munivenkatappa and Lakshmamma. It was stated, defendant no.1, plaintiff, Smt.Muniamma and Munivenkatappa were residing together. It was stated, defendant no.1 neglected welfare of his wife and children and died 15 years earlier. In view of above, plaintiff was not a member of Hindu Joint family of defendants. 7. It was stated in 1963, defendant no.1 gifted Smt.Muniamma and her children, 1 Acre in Sy.no.117/3 and 8 guntas in Sy.no.87. In year 1992, plaintiff along with Venkatachari and Eshwarachari sold said properties to Devraj. It was stated, plaintiff, his mother and other brothers had separately purchased about 5 Acres of land with borewell and house and were growing commercial crops. However, colluding with defendant no.1, plaintiff had filed suit. It was stated during its pendency defendant no.1 died, and defendants along with other heirs inherited suit property (except item no.3) and were in possession since 40 years to knowledge of plaintiff. Thus, plaintiff had no manner of right, title, interest or possession over suit properties. - 7 - NC: 2025:KHC:17421 RSA No. 1705 of 2011 8. In additional written statement, absence of pleadings about manner of accrual of right and entitlement for 1/9th share in suit properties, improper valuation and lack of pecuniary jurisdiction were also urged. It was also stated apart from suit properties, plaintiff was having two houses bearing khata no.35 and 90 standing in name of his mother and lands bearing Sy.no.117, measuring 26 guntas and Sy.no.113 measuring 2 Acres 25 guntas were purchased by defendant no.1 from joint family income and contended non-inclusion of said properties was fatal to suit and sought for its dismissal. 9. In written statement filed by legal representatives of defendant no.1 contentions in written statement filed by defendants no.2 and 3 were reiterated. In addition, suit being bad for non-joinder of necessary parties namely Smt.Menasamma d/o Muniyamma and Chinnamma d/o Munivenkatamma was alleged and prayed for dismissal of suit. 10. Based on pleadings, trial Court framed following: Issues: 1. Whether the plaintiff proves that he is entitled for legitimate 1/9th share in the suit schedule property to enforce partition and separate possession by metes and bounds as alleged? - 8 - NC: 2025:KHC:17421 RSA No. 1705 of 2011 2. Whether the plaintiff is entitled for the relief of permanent injunction against defendants with respect to his legitimate share in the suit property? 3. Whether the plaintiff is entitled for mesne profits as claimed through accounts from the defendants? 4. Whether the defendants 2 & 3 submit that the suit schedule property no.3 was gifted under gift deed in 1963 by 1st defendant in favour of Siddanahalli Muniamma and her sons and daughters? 5. Whether the suit is not properly valued for want of joint possession of the plaintiff and defendants and court fee paid is not proper? 6. Whether the suit is bad for non joinder of necessary parties? (deleted). 7. Whether the LRs of deceased 1st defendant and 2nd defendant and 3rd defendant perfected their title over the suit schedule property by law of adverse possession? 8. To what order or decree? ADDITIONAL ISSUE: Whether the defendants 2 & 3 prove that plaintiff's 1/9th share oust the pecuniary jurisdiction of this court to try this suit? 11. In trial, plaintiff examined himself as PW.1 and got marked Exhibits P1 to P3. In rebuttal, defendants no.2 and 3 and another were examined as DWs.1 to 3 and got marked Exhibits D1 to D3. - 9 - NC: 2025:KHC:17421 RSA No. 1705 of 2011 12. On consideration, trial Court answered issues no.1 and 4 in affirmative, issues no.2, 5, 7 and additional issue no.1 in negative; issue no.3 partly in affirmative; issue no.6 as deleted and issue no.8 by decreeing suit holding plaintiff entitled for 1/9th share in suit properties, directing defendants to deliver plaintiff's share within 3 months and for rendering of accounts etc. 13. Aggrieved, defendants no.1 (b to f), 2 and 3 filed R.A.no.16/2003 on various grounds. Based on same, following points were framed: 1. Whether the appellants prove that respondent no.1/plaintiff is not entitled share on the suit schedule properties? 2. Whether the appellants prove that the judgment and decree passed by the trial court is erroneous and call for interference? 3. What order? 14. On consideration, it answered points no.1 and 2 in affirmative and point no.3 by allowing appeal and dismissing suit. Aggrieved, plaintiff filed this appeal. 15. Sri C. Pattabiraman, learned counsel for plaintiff submitted, appeal was against divergent findings in suit for partition and separate possession. It was submitted trial Court - 10 - NC: 2025:KHC:17421 RSA No. 1705 of 2011 appreciated material placed on record to establish that plaintiff was son of defendant no.1 through Smt.Muniamma along with Munivenkatappa and Lakshmamma. And defendant no.1 had six children from Munivenkatamma and granted 1/9th share to plaintiff. 16. In Appeal, first appellate Court also observed Smt.Muniamma was mistress of defendant no.1 and plaintiff was born to them, but held plaintiff was illegitimate child and as such entitled for share only in self-acquired property of defendant no.1. It non-suited plaintiff on ground that he failed to establish any of suit properties were self-acquired properties of defendant no.1. It was submitted, in view of death of defendant no.1 during pendency of suit, succession had opened and trial Court decree would be justified. Same was also was contrary to ratio laid down by Hon'ble Supreme Court in case of Revanasiddappa and Anr. v. Mallikarjun and Ors., reported in 2023 (10) SCC 1. On above grounds sought for answering substantial question of law and allow appeal. 17. Heard learned counsel for appellant, perused impugned judgment and decree. Despite opportunity, there is - 11 - NC: 2025:KHC:17421 RSA No. 1705 of 2011 no representation on behalf of respondents no.2, 4 to 7, 10 and 11, while respondents no.1, 3, 8 and 9 are served, but unrepresented. 18. This appeal is by plaintiff challenging judgment and decree passed by first appellate Court reversing trial Court decree and dismissing plaintiff's suit for partition and separate possession. Plaintiff’s claim for partition was based on assertion that he was son of defendant no.1 and Smt.Muniamma and as suit properties were ancestral joint family properties of defendant no.1, he was entitled for share. 19. Suit was contested only by defendants no.2 and 3. Though, they admitted suit properties were joint family properties of defendant no.1, they contended that plaintiff was not member of Hindu Joint Family of defendant no.1, due to absence of marriage between Smt.Muniamma and defendant no.1. Though, non-joinder of all parties and non-inclusion of all properties was urged, issue regarding non-joinder was got deleted before commencement of trial, no specific issue about non-inclusion was framed. - 12 - NC: 2025:KHC:17421 RSA No. 1705 of 2011 20. While passing judgment and decree, trial Court observed contention taken by defendants no.2 and 3 about status of plaintiff as illegitimate son and maintainability of suit during life time of defendant no.1 and their reliance on decision reported in ILR 1989 Kar. 2384 (Patel Chandrappa v. Hanumanthappa), it concluded that even children born out of void marriage would be entitled to properties in equal share with legitimate children as held by Hon'ble Supreme Court in its decision reported in AIR 1988 SC 191 and 2000 (1) SC 385, to conclude that plaintiff was entitled for 1/9th share in suit properties. 21. In appeal, first appellate Court was called upon to examine legality of finding of trial Court that illegitimate children would also be entitled for partition of coparcenary property and in equal share with legitimate children. It observed contention taken by defendants no.2 and 3 in written statement that suit properties were their ancestral properties inherited from defendant no.1 and plaintiff being illegitimate son would not be entitled for share in ancestral joint family properties. They also claimed to be in possession of items no.1, 2 and 4 to 6 of suit properties, while possession of item no.3 - 13 - NC: 2025:KHC:17421 RSA No. 1705 of 2011 was with plaintiff. It observed extent of 1 Acre in Sy.no.117/3 and 8 guntas in Sy.no.87 were gifted by defendant no.1 to plaintiff’s mother Smt.Muniamma in year 1963, but, defendants had not sought any declaration about invalidity of gift. 22. It held though illegitimate children would be entitled for share along with legitimate children, same would only be in self acquired property or individual property of their parents. It held plaintiff had not led any evidence to show that suit properties were individual or self acquired properties of defendant no.1. On said conclusion, it reversed findings. 23. Thus, there is no dispute about plaintiff being illegitimate son of defendant no.1 and suit properties belonging to defendant no.1. Though contention is taken by defendants no.2 and 3 that plaintiff cannot maintain suit for partition during life time of defendant no.1, in view of death of defendant no.1 during pendency of suit, clog if any, on such count stands removed and share granted to plaintiff would be fully in accordance with ratio laid down by Hon'ble Supreme Court in Revanasiddappa’s case (supra). - 14 - NC: 2025:KHC:17421 RSA No. 1705 of 2011 24. While passing impugned judgment and decree, trial Court had exercised inherent power and molded relief, but, first appellate Court overturned same without reasoning rendering it contrary to law and unsustainable. 25. Present appeal was admitted on 15.11.2021 to consider following substantial question of law : "Whether the First Appellate Court was justified in setting aside the judgment and decree of the Trial Court on the ground that the plaintiff who is the illegitimate son of defendant no.1 was entitled for share only in respect of the property which belonged to his father and not in respect of the joint family properties?" 26. In view of above discussion, same is answered in negative. Consequently, following: ORDER Appeal is allowed. Judgment and decree dated 05.08.2009 passed by Principal Civil Judge (Sr.Dn.), KGF, in R.A.no.16/2003 is set-aside; judgment and decree dated 02.12.2002 passed by II Additional Civil Judge (Jr.Dn.), KGF, in O.S.no.134/1998 is restored. Sd/- (RAVI V HOSMANI) JUDGE GRD List No.: 1 Sl No.: 41