- 1 - RSA No.100129 of 2022 RESERVED ON : 12.09.2025 PRONOUNCED ON : 19.09.2025 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 19TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR SECOND APPEAL NO.100129 OF 2022 BETWEEN: 1 . SATTEPPA S/O. RAMAPPA KUMBAR SINCE DECEASED BY HIS LRS SMT. PARWATEWWA W/O. SATTEPPA KUMBAR AGE: 63 YEARS, OCC: HOUSEHOLD WORK, R/O:CHINAGUNDI, TQ. JAMKHANDI, DIST. BAGALKOT 587 301. 2 . RAMAPPA S/O. SATTEPPA KUMBAR AGE: 45 YEARS, OCC: AGRICULTURE, R/O:CHINAGUNDI, TQ. JAMKHANDI, DIST. BAGALKOT 587 301. 3 . MALLAPPA S/O. SATTEPPA KUMBAR AGE: 43 YEARS, OCC: AGRICULTURE, R/O:CHINAGUNDI, TQ. JAMKHANDI, DIST. BAGALKOT 587 301. 4 . HANAMANTH S/O. SATTEPPA KUMBAR AGE: 42 YEARS, OCC: AGRICULTURE R/O:CHINAGUNDI, TQ. JAMKHANDI, DIST. BAGALKOT 587 301. 5 . BASAVARAJ S/O. SATTEPPA KUMBAR AGE: 39 YEARS, OCC: AGRICULTURE R/O:CHINAGUNDI, TQ. JAMKHANDI, MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.09.19 15:12:41 +0530 - 2 - RSA No.100129 of 2022 DIST. BAGALKOT 587 301. …APPELLANTS (BY SRI. GIRISH A. YADWAD, ADVOCATE) AND: 1 . SMT. MALLAWWA W/O. SANGAPPA KUMBAR AGE: 60 YEARS, OCC: HOUSEHOLD WORK, R/O:CHINAGUNDI, TQ JAMKHANDI, DIST. BAGALKOT 587 301. 2 . SMT. SUVARNA W/O. SIDDAPPA KUMBAR AGE: 37 YEARS, OCC: HOUSEHOLD WORK, R/O:CHIKKALAKI, TQ. JAMKHANDI, DIST. BAGALKOT 587 301. 3 . SMT. NEELAWWA W/O. SADASHIV KUMBAR AGE: 35 YEARS, OCC: HOUSEHOLD WORK, R/O:BADALADI, TQ. VIJAYAPUR, DIST. VIJAYAPUR 587 117. 4 . SMT. SAVITRI W/O. CHINNAPPA KUMBAR AGE: 33 YEARS, OCC: HOUSEHOLD WORK, R/O:ARAKERI, TQ. BILAGI, DIST. BAGALKOT 587 116. 5 . CHINNAPPA S/O. SANGAPPA KUMBAR AGE: 41 YEARS, OCC: AGRICULTURE, R/O:CHINAGUNDI,TQ. JAMKHANDI, DIST. BAGALKOT 587 301. 6 . SMT. KALAWATI W/O. SADASHIV KUMBAR AGE: 29 YEARS, OCC: HOUSEHOLD WORK, R/O: TUBACHI, TQ. JAMKHANDI, DIST. BAGALKOT 587 301. 7 . SMT. DANAMMA W/O. DUNDAPPA KUMBAR AGE: 27 YEARS, OCC: HOUSEHOLD WORK, R/O:ALAGUNDI, TQ. BILAGI, DIST. BAGALKOT 587 301. - 3 - RSA No.100129 of 2022 8 . BHIMAPPA S/O. RAMAPPA KUMBAR AGE: 65 YEARS, OCC: HOUSEHOLD WORK, R/O:CHINAGUNDI, TQ. JAMKHANDI, DIST. BAGALKOT 587 301. …RESPONDENTS (BY SRI. K.S. PATIL, ADVOCATE FOR R1 TO R7; NOTICE SERVED TO R8) THIS RSA FILED U/SEC.100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 05.08.2021 PASSED IN R.A.NO.14/2020 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AT, JAMKHANDI, ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 26.02.2020, PASSED IN O.S. NO.22/2017 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE, AND JMFC JAMKHANDI, PARTLY DECREEING THE SUIT FILED FOR DECLARATION PARTITION AND SEPARATE POSSESSION. IN THIS REGULAR SECOND APPEAL ARGUMENTS HAVING BEEN HEARD AND RESERVED ON 12.09.2025 AND COMING ON FOR “PRONOUNCEMENT OF ORDERS”, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) Appellants, who are the legal representatives of Satteppa, being defendants 1(a) to 1(e), have preferred this appeal against the judgment and decree dated 26th February 2020 passed in OS No.22 of 2017 by the Additional Civil Judge & JMFC, Jamkhandi (for short “the trial Court”) which in appeal, before the Additional Senior Civil Judge, Jamakhandi (for short “the first appellate Court”) in RA No.14 of 2020 is allowed in part by judgment and decree dated 5th August, 2021. - 4 - RSA No.100129 of 2022 2. For the sake of convenience, the parties herein are referred to as per their status and rank before the trial Court. 3. Brief facts leading to this appeal are that the plaintiff has filed suit for partition and separate position of the suit property. Propositus-Ramappa died on 15th May, 1970 and his wife Bhagawwa is also no more. They had three sons, viz. Sathyappa (D1), Bhimappa (D3) and deceased Sangappa, who died on 1st August, 2006, leaving behind legal heirs i.e. plaintiffs 1 to 7. Defendant No.2 is the son of defendant No.1. After demise of propositus-Ramappa, their names were mutated in the revenue records and they constitute the joint family. The names of three sons were mutated to the suit land under ME No.1029 dated 14th June, 1970. During that time, Sangappa and Bheemappa were minors and as such they were represented by their elder brother defendant No.1-Satyappa. In ME No.1815, it is clearly indicated that the mother Smt. Bhagawwa has to enjoy the property during her lifetime for her maintenance, and after her death, the same reverts back to defendants and they have equal share in the said land. When such being the fact, the defendant No.1, behind the back of other brothers, got mutated his name in the suit land under MR No.H24/15-16 dated 30th - 5 - RSA No.100129 of 2022 April, 2016 and thereafter, executed a registered gift deed dated 14th January, 2015 in favour office his son-defendant No.2. On the basis of the gift, defendants 1 and 2 submitted representation to the Tahsildar, Jamakhandi to mutate the name of defendant No.2. Plaintiff raised objections to this and as such, the matter is registered as dispute in RTS/SR-55/14–15. After enquiry, the Tahasildar, vide order dated 20th December, 2015, rejected MR No.14/14–15, which was impugned in RTS/AP.No.91/15–16, which came to be dismissed on 13th October, 2016. Plaintiffs demanded the defendant to allot their one-third share in the suit land, but defendants have not acceded to their request. Hence plaintiffs filed suit and the defendants have resisted the suit by filing written statement denying the averments contending that plaintiffs have not arrayed six daughters of propositus-Ramappa, who are also necessary parties to the suit. Properties indicated in ME No.1029 and ME No.1815 are not included in the suit. Hence, suit is bad for non- joinder of necessary parties, so also, for non-inclusion of all properties. Suit is filed suppressing true facts. ME No.1029 was certified in the year 1970 and till this date it is not questioned. It is contended that propositus-Ramappa and other members of the - 6 - RSA No.100129 of 2022 family have given consent to mutate the name of Satyappa to the suit land. Satyappa was having absolute right over the suit land and as such he has executed registered gift deed in favour of his son-defendant No.2, who got mutated his name and is in possession of the said land. Plaintiffs have no right over the suit land. Suit is not properly valued and court fee paid is also not sufficient. On all these grounds, it was prayed for dismissal of the suit. 4. On the basis of pleadings, the trial Court has framed five issues. To prove the case of the plaintiff, one witness was examined as PW1 and six documents were marked as Exhibits P1 to P6. On closure of plaintiff side evidence, defendants have examined eight witnesses as DWs1 to 8 and marked eight documents as Exhibits D1 to D8. Having heard arguments on both sides, the trial court decreed the suit in part. Being aggrieved by the judgment and decree passed by the trial Court defendants preferred appeal before the first appellate Court in RA No.14 of 2020. The first appellate court allowed the appeal in part and consequently, the judgment and decree passed by the trial Court came to be modified as under: - 7 - RSA No.100129 of 2022 “Appeal is allowed in part with costs. Consequently, Trial Court judgment and decree is modified. Suit is decreed in part with costs. Plaintiffs together are entitled for partition and separate possession of 1/7th share in the suit land RS.No.67/2 measuring 2As 06Gs of Chingundi village, Taluk Jamkhandi by metes & bounds. Defendants-1A to 1F together are entitled for partition and separate possession of 1/7th share in the suit land by metes & bounds, subject to payment of Court fee. Defendant-3 is entitled for partition and separate possession of 1/7th share in the suit land by metes & bounds, subject to payment of Court fee. Daughters of deceased propositus Ramappa i.e..Chinnawwa, Bourawwa, Gourawwa and Gangawwa are entitled for 1/7th share each in the suit land by metes and bounds, subject to payment of Court fee. Parties herein are directed to implead above said daughters in the final decree proceedings. If they failed in doing so they (daughters) are at liberty to self implead themselves in the final decree proceedings. Further the parties herein are directed to implead the legal heirs if any of deceased daughters i.e., Yallawwa and Mallawwa. If they failed in doing so their (Yallawwa & Mallawwa) legal heirs if any are at liberty to self implead themselves in the final decree proceedings. In the event of legal heirs if any of above said deceased daughters then the plaintiffs together are - 8 - RSA No.100129 of 2022 entitled for 1/9th share and defendants-1A to 1F together are entitled for 1/9th share and defendant-3 is entitled for 1/9th share and four daughters are entitled for 1/9th share each and legal heirs of deceased Yallawwa & Mallawwa are entitled for 1/9th share each in suit land by metes and bounds.” 5. Learned Counsel appearing for the Appellants submit that the judgment and decree passed by the courts below are illegal, capricious, perverse and are not sustainable in the eye of law. It is submitted that the defendants have taken very specific contention that the suit is bad for non-joinder of all necessary parties inasmuch as daughters of propositus. In spite of such contention, the plaintiffs have not chosen to implead the daughters of propositus-Ramappa and hence the suit is not maintainable and fails on this count alone. The trial Court has not framed any issue in this regard. The first appellate Court has also failed to consider this aspect of the matter and strangely allotted share to the daughters of the propositus. Such recourse is unknown to law. On all these grounds, it was sought for formation of substantial question of law. To substantiate his submissions, the learned Counsel has relied upon the following judgments: - 9 - RSA No.100129 of 2022 1. KANAKARATHANAMMAL v. V.S. LOGANATHA MUDALIAR AND ANOTHER - AIR 1965 SC 271; 2. RAJABIBI AND OTHERS v. S. AMMERALI AND OTHERS MANU/KA/0063/1974; 6. I have examined the materials placed before me. The relationship between the parties is not in dispute. With regard to non-joinder of necessary parties to the suit is concerned, the first appellate Court, at paragraphs 18 to 27 of the judgment, has observed as under: “18. To answer above question first let us set at rest the contention of defendants about maintainability of suit for non-joinder of necessary parties and non-inclusion of all properties. 19. As far as necessary parties are concerned; admittedly deceased Ramappa had six daughters among them two are no more. Whether the deceased daughters have any legal heirs or not is not forthcoming. Indisputably the suit land is an ancestral property at the hands of deceased propositus Ramappa. Thus, by virtue of amended provision Section 6 of Hindu succession Act the daughters are entitled for equal share as that of sons. 20. If it is considered that the suit land was given to Bhagawwa for her maintenance with a restriction to enjoy the land for lifetime and after her death it goes to three sons then also the daughters of Bhagawwa are entitled for equal share in the said land because as per Section 14 (1) of - 10 - RSA No.100129 of 2022 Hindu Succession Act the limited right of maintenance blossoms into absolute right. In case of Dakshyanamma V/s B.Siddalingaiah, ILR 2005 KAR 3234, it is held that; the explanation provided to Section 14 makes it clear that with regard to any property acquired by a female Hindu in lieu of maintenance or arrears of maintenance she has to be held as a full owner and not as limited owner. It may be so because of the fact that prior to the enactment of Hindu Succession Act, 1956 the law then in existence had only conferred a limited estate on the female that too to a wife of a co-parcener and she has a limited right of enjoyment during her lifetime without the right of alienation as is specifically provided under the Married Women's Property Act, 1933 (Mysore). Applying the case law in V.Tulasamma's case (AIR 1977 SC 1944) it is held that; it is sub-section (1) and not sub- section (2) of Section 14 which is applicable in similar circumstances and as such, the appellant must be deemed to have become full owner of the properties notwithstanding the compromise prescribing a limited interest in her in the properties. Therefore, Section 14(1) of the Hindu Succession Act applies and not Section 14(2). In a decision reported in AIR 1996 SC 1697, (C.Masilaani Mudaliar & Ors V/s The Idol of Sri.Swaminathaswami Thirukoli & Ors), wherein it is held that; property conferred on wife and causing wife under will before come into force of Act in recognition of their right to maintenance under Sastric law as envisaged in will. It cannot be construed as right acquired for the first time under will. Same blossoms into absolute ownership under Section 14(1) after coming into force of Act, as Section 14(1) attracted and not Section 14(2). In case of Sakkaragouda Andagouda Giraddi & Anr V/s Umesh Shekarappa Meti, 2020 (4) AKR 101 it is held that: husband transferring property to his wife in lieu of maintenance after divorce, Section 14 enlarged limited interest created in - 11 - RSA No.100129 of 2022 favour of wife and she became absolute owner of property. 21. Here, in either case i.e.. if property was in the hands of propositus Ramappa or it was given to wife Bhagawwa for maintenance, who died intestate, the sons and daughters are entitled for equal share. 22. Respondents argued that; the daughters have relinquished their right over the suit land. This contention is not tenable because there is no such pleadings and proof with respect to relinquishment of right by the daughters of Ramappa. 23. Now the question is whether in the absence of daughters can their shares be allotted herein or it is required to implead them. It is pertinent to note that the suit at hand is for partition. Here, only preliminary decree will be passed by declaring the shares of parties to which they are entitled for. In final decree further proceedings have to be taken before the suit can be completely disposed of. Order 1 Rule 10 (2) CPC envisages that: the Court may at any stage of the proceedings add the parties. The daughters can be impleaded in final decree proceedings wherein also they can agitate their rights. Here, there is no dispute that there are six daughters among them two are no more. Whether the deceased daughters have legal heirs or not is not forthcoming. If they have legal heirs they are at liberty to implead themselves in final decree proceedings. Thus, this Court is of opinion that if shares are allotted to living daughters directing the parties herein to implead them and also the legal heirs in the final decree if any of deceased daughters in the final decree proceedings no prejudice will - 12 - RSA No.100129 of 2022 be caused to either of the parties. Under these circumstances remanding the matter for the impleadment of parties is not warranted. In the light of above discussion it cannot be said that the suit is liable to be dismissed for non- joinder of necessary parties. 24. Appellants argued that; the suit suffers for non inclusion of all properties as shown in the ΜΕ.No. 1815. This contention is not entertainable because as per said mutation division effected between three sons and mother, wherein suit land is allotted to mother for her maintenance with a condition that she has to enjoy the land in her lifetime and after her death the sons are entitled for. Plaintiffs are not challenging said partition herein. They are only claiming right in the land which was allotted to mother Bhagawwa, who died intestate. Defendants also not claimed any counter claim in respect of said lands. The daughters also not impleaded themselves questioning said division. Under these circumstances it cannot be said that the suit is bad for non-inclusion of all properties. 25. Above discussion manifest that the plaintiffs being legal heirs of deceased Sangappa have a share in the suit land and the defendants failed to prove that the defendant-1 is the absolute owner of suit land. Further the daughters of propositus are also entitled for a share. Thus, trial Court erred in awarding 1/4th share to sons and under notional partition 1/7th share each to the daughters in the 1/4th share of deceased Ramappa. But as discussed supra the daughters are also entitled for equal share as that of sons. To this extent interference is warranted to modify the decree. Hence, above points are answered accordingly. - 13 - RSA No.100129 of 2022 26. Before parting let us consider another contention raised by the appellants about the limitation. They contended that; suit is time barred as mutation was effected in the year 1970 and same is not questioned till this day. This contention holds no water to appellants because it is trite that mutation entries cannot be proof of title. Mutation entries neither create nor extinguish any right over the immovable property. Further, for partition the limitation starts when there is an ouster. To seek partition there is no limitation unless ouster is pleaded and proved. Here, no such pleadings and proof is forthcoming to entertain the plea of limitation raised by the appellants. 27. Appellants argued that; the matter is to be remanded to bring the necessary parties and for fresh disposal. This contention is not tenable because instead of remanding the matter the share of undisputed heirs can be fixed herein on the basis of undisputed facts at hand and the legal rights of the parties herein. And also by reserving liberty to the said necessary parties to agitate any other contentions if they have in the final decree proceedings.” 7. A plain reading of the judgment of the first appellate Court makes it clear that the first appellate Court has properly appreciated the material on record in accordance with law and facts and has modified the judgment passed by the trial Court. The judgments relied upon by the learned Counsel for the appellants are entirely different to the facts and circumstances of - 14 - RSA No.100129 of 2022 the case on hand, and accordingly, the same will not come to the aid of the appellants. There is no irregularity or infirmity in the impugned judgment and decree passed by the first appellate Court. I do not find any ground to formulate the substantial question of law as sought for. Accordingly, I proceed to pass the following: O R D E R Appeal is dismissed. Sd/- (G BASAVARAJA) JUDGE LNN CT-CMU