- 1 - HC-KAR NC: 2025:KHC:33240 RSA No. 55 of 2020 C/W RSA No. 29 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 55 OF 2020 (PAR) C/W REGULAR SECOND APPEAL NO. 29 OF 2020 IN RSA NO. 55/2020 BETWEEN: HANUMANTHAPPA S/O LATE SIDDAPPA AGED ABOUT 66 YEARS R/O HARNAHALLI VILLAGE HARNAHALLI HOBLI, SHIVAMOGGA TQ AND DIST PIN 577 201 …APPELLANT (BY SRI. HALLI SHANTAPPA BASAPPA.,ADVOCATE) AND: 1. S.RAMAPPA S/O SIDDAPPA AGED ABOUT 71 YEARS R/O HARNAHALLI VILLAGE HARNAHALLI HOBLI, SHIVAMOGGA TQ AND DIST PIN 577 201 SRI DODDI DURGAPPA DEAD BY HIS LRS 2. SMT. GOWRAMMA W/O LATE DODDI DURGAPPA Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:33240 RSA No. 55 of 2020 C/W RSA No. 29 of 2020 AGED ABOUT 70 YELARS 3. D. SURESH S/O LATE DODDI DURGAPPA AGED ABOUT 47 YEARS 4. NAGAVENI W/O LINGARAJU AGED ABOUT 43 YEARS 5. S. RAJAPPA S/O LATE SIDDAPPA AGED ABOUT 66 YEARS 6. SMT. PUTTAMMA W/O KURER KENCHAPPA D/O LATE SIDDAPPA AGED ABOUT 72 YEARS SMT. MANJAMMA, SINCE DEAD BY HER LRS, 7. D.H. MANJAPPA S/O DODDI HALADAPPA AGED ABOUT 53 YEARS 8. SMT. HEMAVATHI W/O MARKOYER RAMAPPA AGED ABOUT 51 YEARS R7 AND R8 ARE R/O MYLARA KATTE, TEMPLE STREET, HARNAHALLI, SHIVAMOGGA TQ AND DIST 9. SMT JAYAMMA W/O DEVENDRAPPA D/O LATE SIDDAPPA AGED ABOUT 66 YEARS - 3 - HC-KAR NC: 2025:KHC:33240 RSA No. 55 of 2020 C/W RSA No. 29 of 2020 R2 TO R6 AND R9 ARE R/O HARNAHALLI VILLAGE HARNAHALLI HOBLI, SHIVAMOGGA TQ AND DIST PIN 577 201. …RESPONDENTS (BY SRI.U PANDURANGA NAYAK.,ADVOCATE FOR R1; R5 TO R7, R9 ARE SERVED, R8-SERVICE HELD SUFFICIENT) ------ THIS RSA IS FILED UNDER SEC.100 OF CPC PRAYING TO CALL FOR RECORDS AND SET ASIDE THE JUDGMENT AND DECREE DATED 11.10.2019 PASSED IN RA NO 62/2017 ON THE FILE OF THE PRL.SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA AND ALSO THE JUDGMENT AND DECREE DATED 05.06.2017 PASSED IN OS NO 592/2013 ON THE FILE OF THE II ADDL.CIVIL JUDGE AND JMFC, SHIVAMOGGA. IN RSA NO. 29/2020 BETWEEN: HANUMANTHAPPA S/O LATE SIDDAPPA, AGED ABOUT 66 YEARS, R/O HARNAHALLI VILLAGE, HARANAHALLI HOBLI, SHIVAMOGGA TQ AND DISTRICT. PIN-577201 ...APPELLANT (BY SRI. G C SHANMUKHA., ADVOCATE) AND: 1. S.RAMAPPA S/O SIDDAPPA, AGED ABOUT 71 YEARS, - 4 - HC-KAR NC: 2025:KHC:33240 RSA No. 55 of 2020 C/W RSA No. 29 of 2020 R/O HARANAHALLI VILLAGE, HARANAHALLI HOBLI, SHIVAMOGGA TQ AND DISTRICT PIN-577201 DODDI DURGAPPA DEAD BY HIS LRS 2. SMT GOWRAMMA W/O LATE DODDI DURGAPPA, AGED JABOUT 70 YARS, 3. D SURESH S/O LATE DODDI DURGAPPA, AGED ABOUT 47 YEARS, 4. NAGAVENI W/O LINGARAJU, AGED ABOUT 43 YEARS, 5. S RAJAPPA S/O LATE SIDDAPPA, AGED ABOUT 66 YEARS, 6. SMT. PUTTAMMA W/O KURER KENCHAPPA, D/O LATE SIDDAPPA, AGED ABOUT 72 YEARS, SMT MANJAMMA DEAD BY LRs. 7. D H MANJAPPA S/O DODDI HALADAPPA, AGED ABOUT 53 YEARS, 8. SMT. HEMAVATHI W/O MARKOYER RAMAPPA, AGED ABOUT 51 YEARS, - 5 - HC-KAR NC: 2025:KHC:33240 RSA No. 55 of 2020 C/W RSA No. 29 of 2020 R7 AND R8 ARE R/O MYLARA KATTE, TEMPLE STREET, HARNAHALLI, SHIVAMOGGA TQ AND DISTRICT. 9. JAYAMMA W/O DEVENDRAPPA, D/O LATE SIDDAPPA, AGED ABOUT 66 YEARS, R2 TO R6 AND R9 ARE R/O HARANAHALLI VILLAGE, HARNAHALLI HOBLI, SHIVAMOGGA TQ AND DISTRICT 577201 ...RESPONDENTS (BY SRI. U PANDURANGA NAYAK.,ADVOCATE FOR R1 & R5; SRI. AJAY KUMAR M, ADVOCATE FOR SRI. M. RUDRAIAH, ADVOCATE FOR R2 TO R4; SRI. S. SATHYASULOCHANA, ADVOCATE FOR R6 AND R9; R7- D.H.MANJAPPA SD, R8- HEMAVATHI SD) ----- THIS RSA IS FILED UNDER SEC.100 OF CPC PRAYING TO CALL FOR RECORDS AND SET ASIDE THE JUDGMENT AND DECREE DATED 11.10.2019 PASSED IN RA NO 63/2017 ON THE FILE OF THE PRL.SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA AND ALSO THE JUDGMENT AND DECREE DATED 05.06.2017 PASSED IN OS NO 592/2013 ON THE FILE OF THE II ADDL.CIVIL JUDGE AND JMFC SHIVAMOGGA. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA - 6 - HC-KAR NC: 2025:KHC:33240 RSA No. 55 of 2020 C/W RSA No. 29 of 2020 ORAL JUDGMENT Heard Sri Halli Shanthappa Basappa, learned counsel for the appellant and Sri Panduranga Nayak for respondent no.1. 2. Defendant No.3 has filed these second appeals questioning the validity of the judgments passed in the regular appeals, modifying the decree passed by the Trial Court in O.S.No.592/2013, filed for partition and separate possession by respondent no.1 herein. 3. This Court admitted R.A.No.29/2020 on 09.03.2022 and framed the following substantial questions of law : i. Whether the first appellate Court committed an error in decreeing the suit including the property of S.Manjappa in respect of Item No.2 on the premise that his whereabouts were not known and was presumed to be dead under Section 107 of the Indian Evidence Act, 1872 ? ii. Whether the first appellate Court re-distributed Item No.2 to the plaintiff without there being any appropriate declaration that S.Manjappa was dead? RSA No.55/2020 came to be admitted on 13.01.2023 by framing following substantial questions of law : - 7 - HC-KAR NC: 2025:KHC:33240 RSA No. 55 of 2020 C/W RSA No. 29 of 2020 "1. Whether the Trial Court is justified in decreeing the suit of the plaintiff in respect of item no.1 in coming to the conclusion that the suit schedule property is the joint family property of the plaintiff and the defendants? 2. Whether the First Appellate Court is justified in dismissing the appeal of the appellant and whether the judgment of the Trial Court and the First Appellate Court suffers from infirmity? 4. For the sake of convenience, genealogical tree is extracted hereunder : Genealogical Tree Doddasiddappa s/o.Manjappa (dead) Ningamma, wife (dead) | children (7) 1. Doddidurgappa (son-dead-married) Gowramma (wife-dead) | children 1. Suresh (son-48y-married) 2. Nagaveni (daughter-45y-married) Doddasiddappa s/o.Manjappa (dead) Ningamma, wife (dead) | children (7) - 8 - HC-KAR NC: 2025:KHC:33240 RSA No. 55 of 2020 C/W RSA No. 29 of 2020 1. Doddidurgappa (son-dead-married) Gowramma (wife-dead) 2. Puttamma (daughter-80y-married) 3. Manjamma (daughter-dead-married) 4. Rajappa (son-70y-married) 5. Jayamma (daughter-68y-married) 6. Hanumanthappa (son-65y-married) 7. Ramappa (son-63y-married) 8. Manjappa (son-60y-missing) 5. Brief facts of the case in the nutshell for disposal of these appeals are as under : Plaintiff, respondent no.1 herein, seventh son of Doddasiddappa and Ningamma, filed a suit against the defendants, who are his brothers and sisters, for the relief of partition and separate possession. Manjappa, eighth/last son of Doddasiddappa and Ningamma, is said to be missing. 5.1. The Trial Court after considering the rival contentions of the parties, decreed the suit in part. The operative portion of the judgment reads as under : "The suit of the plaintiff is hereby partly decreed. - 9 - HC-KAR NC: 2025:KHC:33240 RSA No. 55 of 2020 C/W RSA No. 29 of 2020 Each of the plaintiff, defendant no.1 to 3 and S.Manjappa are entitled to 9/4eigth share in the suit schedule 1 property and each of the defendant no.4 to 6 are entitled to 1/4eigth share in the suit schedule 1 property." 6. Being aggrieved by the same, defendant no.3 as well as the plaintiff filed appeals before the first appellate Court, numbered as R.A.No.62/2017 and R.A.No.63/2017 respectively. 7. The learned Judge in the First Appellate Court, after hearing the parties, modified the decree passed by the Trial Court suo moto assuming that Manjappa, the youngest brother of plaintiff and defendant no.3 and who is said to be missing, is dead. 8. The operative portion of the judgment of the first appellate Court reads as under : "Appeal filed in R.A.No.62/2017 under Order 41 Rule 1 of CPC is dismissed and the appeal filed in R.A.63/2017 under Section 96 Order 41 Rule 1 of CPC is allowed in part. - 10 - HC-KAR NC: 2025:KHC:33240 RSA No. 55 of 2020 C/W RSA No. 29 of 2020 Judgment and decree in O.S.No.529/2013 is modified. Suit of the plaintiff is decreed and S.Manjappa is declared as dead as he has not been heard for more than 7 years as on the date of suit. The plaintiff is entitled for partition and separate possession of 8/35th share in item no.1 of the suit schedule property and 1/7th share in item no.2 of the suit schedule property. Draw modified decree accordingly. That on considering the relationship between the parties there is no order as to costs. Original judgment shall be kept in R.A.62/2017 and copy shall form part of the record in R.A.63/2017. Office to send back the Trial Court records along with a copy of this judgment." 9. Being aggrieved by the same, defendant no.3 has filed these two appeals. 10. Sri Halli Shanthappa Basappa, learned counsel for the appellant in appeals, reiterating the grounds stated in the appeal memorandum and in the light of the aforesaid - 11 - HC-KAR NC: 2025:KHC:33240 RSA No. 55 of 2020 C/W RSA No. 29 of 2020 substantial questions of law, referred to supra, on which the appeals came to be admitted, contended that, no Court can suo moto hold that a person is dead unless a decree is obtained by the respective parties with a declaration that, a person is not found for more than seven years and therefore, he died a civil death. 10.1. He further contended that in the absence of such a declaration, first appellate Court suo moto holding that the eighth child of Doddasiddappa and Ningamma, having dead is incorrect and calls for allowing the appeal. 11. Learned counsel for the contesting respondents submits that the eighth child was aged sixteen years and he is not heard for sufficiently long period and therefore, it should be presumed that he died a civil death. 12. In the light of the arguments advanced on behalf of the parties, this Court perused the material on record meticulously. 13. On such perusal, it is noticed that, there is no dispute as to the genealogical tree and the number of children Doddasiddappa and Ningamma had. Admittedly, Manjappa is - 12 - HC-KAR NC: 2025:KHC:33240 RSA No. 55 of 2020 C/W RSA No. 29 of 2020 not seen by any of the parties for a long period. But, merely not seeing a person for a long period of time, would not ipso facto result in civil death. 14. If the parties are interested in settling their rights in respect of the property held by Manjappa, the parties are expected to seek for a declaration that, Manjappa died a civil death and intestate, who had no legal representatives and, that the remaining children of Doddasiddappa and Ningamma are the only legal heirs of Manjappa and, seek necessary relief. 15. Without seeking such a declaration, the First Appellate Court suo moto assuming that Manjappa is no more and granting share as if item nos.1 and 2 of the suit properties are self-acquired property of Manjappa is incorrect. When there is a finding with regard to item no.2 being the self acquired property of Manjappa, the First Appellate Court modifying the decree of the Trial Court has thus resulted in miscarriage of justice. 16. In view of the foregoing discussion, the second substantial question of law raised in both RSA No.55/2020 and RSA No.29/2020 needs to be answered in the affirmative and - 13 - HC-KAR NC: 2025:KHC:33240 RSA No. 55 of 2020 C/W RSA No. 29 of 2020 the decree passed by the First Appellate Court with regard to the second item of the property needs to be set aside. 17. At the same time, parties are also reserved the liberty of filing appropriate proceedings with regard to the civil death of Manjappa and thereafter, seek for necessary orders in respect of item no.2 of the suit properties. 18. Accordingly, for the foregoing discussion, substantial questions of law no.2 in both the appeals are answered in favour of the appellant and substantial question of law no.1 in both the appeals are answered against the appellant. 19. In view of the foregoing reasons, the following : ORDER i) Appeals are allowed in part; ii) The judgment and order of the Trial Court passed in respect of suit item no.1 is upheld; iii) The order of the First Appellate Court granting a share to all the parties in respect of item no.2 of the suit property, which is the self-acquisition of Manjanna, is hereby set aside; - 14 - HC-KAR NC: 2025:KHC:33240 RSA No. 55 of 2020 C/W RSA No. 29 of 2020 iv) Parties are at liberty to file necessary and appropriate proceedings with regard to the alleged civil death of Manjappa and seek consequential share in respect of item no.2 of the property. v) No costs. Office is directed to draw appropriate decree Sd/- (V SRISHANANDA) JUDGE rs List No.: 1 Sl No.: 71