- 1 - HC-KAR NC: 2025:KHC:26728 MSA No. 144 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH MISCELLANEOUS SECOND APPEAL NO.144 OF 2024 (RO) BETWEEN: 1. MR. HONGEPPA S/O MR. MANJAPPA, AGED ABOUT 79 YEARS, RESIDING AT SIDDESHWARA NAGARA, DUMMALLI, NIDIGE POST, SHIVAMOGGA TALUK-577222. …APPELLANT (BY SRI. SRINIVAS V., ADVOCATE) AND: 1. MRS. KAMALAMMA WIFE OF MR. ANNAPPA, AGED ABOUT 69 YEARS, RESIDING AT NIDIGE, SHIVAMOGGA TALUK - 577222. 2. MRS. NINGAMMA, W/O RANGAPPA, AGED ABOUT 76 YEARS R/O TOPPINAGHATTA, HARIGE, WARD NO.15, NEAR MALLIKARJUNA TRANSPORT, B.H. ROAD, SHIVAMOGGA - 577222. 3. MRS. SUVARNAMMA W/O MUKUNDAPPA AGED ABOUT 49 YEARS Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:26728 MSA No. 144 of 2024 MR. NAVEENA, (THE RESPONDENT IS NO.3(b) BEFORE FIRST APPELLATE COURT IS DEAD AND THE LRS ARE ALREADY ON RECORD) 4. MRS. ROOPA, D/O MUKUNDAPPA, AGED ABOUT 30 YEARS RESPONDENTS NO.3 TO 5 ARE R/O TOPPINAGHATTA, HARIGE, WARD NO.15, NEAR MALLIKARJUNA TRANSPORT, B.H. ROAD, SHIVAMOGGA-577222 5. MR. BHUJANGA, S/O MANJAPPA, AGED ABOUT 71 YEARS, R/O TOPPINAGHATTA, HARIGE, WARD NO.15, NEAR MALLIKARJUNA TRANSPORT, B.H. ROAD, SHIVAMOGGA -577222. 6. MR. K. VEERANNA S/O KARIYAPPA B, AGED ABOUT 62 YEARS OWNER OF VIJAYALAKSHMI NURSERY HARIGE, B.H. ROAD SHIVAMOGGA-577222. 7. SMT. GANGAMMA W/O K. VEERANNA, AGED ABOUT 54 YEARS, C/O VIJAYALAKSHMI NURSERY, HARIGE, B.H.ROAD, SHIVAMOGGA-577222 8. S.V. VIJAYALAKSHMI D/O K. VEERANNA, AGED ABOUT 33 YEARS, - 3 - HC-KAR NC: 2025:KHC:26728 MSA No. 144 of 2024 C/O VIJAYALAKSHMI NURSERY, HARIGE, B.H. ROAD, SHIVAMOGGA-577222. 9. SURESH GOWDA S/O ANNAIAH, AGED ABOUT 39 YEARS, R/O NIDIGE VILLAGE, SHIVAMOGGA TALUK-577222. 10. VEDAVATHI W/O SURESH GOWDA, AGED ABOUT 36 YEARS, R/O NIDIGE VILLAGE, SHIVAMOGGA TALUK-577222. 11. HARINI S., D/O HARISH GOWDA, AGED ABOUT 19 YEARS, R/O NIDIGE VILLAGE, SHIVAMOGGA TALUK-577222. 12. JANU, D/O SURESH GOWDA, MINOR, REPRESENTED BY HER FATHER, GUARDIAN SURESH GOWDA S/O ANNALAH, AGED ABOUT 38 YEARS, R/O NIDIGE VILLAGE, SHIVAMOGGA TALUK-577222. 13. BHAGYA A., D/O ANNAPPA, AGED ABOUT 37 YEARS, R/O NIDIGE VILLAGE, SHIVAMOGGA TALUK-577222. 14. BINDUSHREE N, D/O NAGARAJA G, AGED ABOUT 15 YEARS, - 4 - HC-KAR NC: 2025:KHC:26728 MSA No. 144 of 2024 MINOR, REPRESENTED BY HER MOTHER, GUARDIAN BHAGYA A W/O NAGARAJA G, AGED ABOUT 36 YEARS, R/O NIDIGE VILLAGE, SHIVAMOGGA TALUK-577222. 15. NANDUSHREE N, D/O NAGARAJA, AGED ABOUT 13 YEARS, MINOR, REPRESENTED BY HER MOTHER, GUARDIAN BHAGYA A., W/O NAGARAJ G, AGED ABOUT 36 YEARS, R/O NIDIGE VILLAGE, SHIVAMOGGA TALUK-577222. …RESPONDENTS THIS MSA IS FILED UNDER SECTION XLIII RULE 1 OF CPC, AGAINST THE ORDER DATED 03.08.2024 PASSED IN R.A. NO.10/2023 ON THE FILE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA AND ETC. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission. Heard the learned counsel appearing to the appellant. - 5 - HC-KAR NC: 2025:KHC:26728 MSA No. 144 of 2024 2. The factual matrix of the case of the respondent No.1/plaintiff before the Trial Court while seeking the relief of partition that she claimed the share in respect of the suit schedule properties contending that she are also entitled for a share in the suit schedule properties which are ancestral properties and the appellant herein filed an application under Order VII Rule 11(a) and (d) read with Section 151 of CPC, wherein it is contended that the suit schedule properties being the co-parcernary properties of Manjappa, subsequent to the death of said Manjappa, children of Manjappa entered into registered partition dated 24.03.2000 wherein the suit schedule properties were partitioned and there is severance of joint family status. Defendant No.1 and defendants Nos.2 to 4 have partitioned the suit schedule properties and portion of properties were conveyed to third parties by executing a deed of conveyance. As per the provisions of Section 6 of the Hindu Succession (Amendment) Act, 2005 does not affect or invalidate the previous partition effected in the - 6 - HC-KAR NC: 2025:KHC:26728 MSA No. 144 of 2024 family before 20.12.2004. In this case, the partition deed is dated 24.03.2000 and filing of the suit is a abuse of process and the same is barred by law. Hence, the claim of the plaintiff is liable to be rejected. 3. For the said application, the plaintiff filed objections contending that the very application is not maintainable since the suit is pending for evidence of the defendants and the plaintiff has already been examined and present application is filed belatedly with an intention to drag the proceedings. No order of rejection of plaint can be passed for want of cause of action as it is a mixed question of law and fact which can be decided only in a full-fledged trial. 4. The Trial Court having considered the grounds which have been urged in the application as well as in the objection statement and also considering the material available on record comes to the conclusion that the plaint averments do not to show as to how the properties were - 7 - HC-KAR NC: 2025:KHC:26728 MSA No. 144 of 2024 acquired to conclude that the suit schedule properties are joint family properties. The plaintiff also pleaded about the registered partition deed dated 24.03.2000 on the ground that the said document is a created document without the knowledge of the plaintiff and the same is only amongst defendant Nos.1 to 4. The said fact is clearly depicts that there is a partition in the family of the plaintiff and defendants and the same is dated 24.03.2000 which is protected as per the proviso to Section 6 of the Hindu Succession (Amendment) Act, 2005 and allowed the application filed under Order VII Rule 11(a) and (d) of CPC. 5. Being aggrieved by the said order, an appeal was filed before the First Appellate Court. The First Appellate Court having considered the grounds which have been urged in the appeal and also the submissions of the respective parties, formulated the Point that whether the impugned order of rejection of plaint is against the law, facts and liable to be interfered by this Court. The First - 8 - HC-KAR NC: 2025:KHC:26728 MSA No. 144 of 2024 Appellate Court having reassessed the material available and record observed that the plaintiff already led the evidence and got marked the document at Exs.P1 to 16 and when the case was set out for defendants’ evidence, at that juncture, an application was filed invoking Order VII Rule 11(a) and (d) of CPC. 6. The First Appellate Court also taken note of the principles laid down in the judgment of the Apex Court reported in 2024 (1) KCCR 368 in the case of KUM. GEETHA VS. NANJUNDASWAMY AND OTHERS wherein it held that whether the suit property is available for partition or not has to be adjudicated during the course of trial and rejection of plaint in a suit for partition is not proper. The First Appellate Court also relied upon the judgment of the this Court reported in 2023 (4) KCCR SN 487 in the case of SHIVABASAPPA vs SHIVAMMA AND OTHERS wherein it is held that the application was filed for rejection of plaint on the ground of limitation and non- disclosure of cause of action. Under such circumstances, - 9 - HC-KAR NC: 2025:KHC:26728 MSA No. 144 of 2024 the rejection of plaint is not proper and matter requires for adjudication of actual dispute between the parties. The First Appellate Court also taken note of the principles laid down in the judgment reported in 2017(5) KCCR 473 in the case of SMT. PRAMEELA N vs L MAHADEVAIAH wherein also it is held that a rejection of plaint was sought in a suit for partition on the ground of non-disclosure of cause of action and dispute was raised about the family property and plea of exclusive property was also raised. Under such circumstances, the issue is determinable only after recording the evidence and rejection of plaint under Order VII Rule 11 of CPC is not proper. 7. The First Appellate Court having considered all these principles laid down in the judgments referred supra taken note of the fact that dispute is with regard to claiming of share. Admittedly, in the present case, there was a partition between the brothers and the same was also a registered partition and also taken note of the fact that a female member who became the co-parcerner on - 10 - HC-KAR NC: 2025:KHC:26728 MSA No. 144 of 2024 the basis of Amendment Act of the year 2005 cannot reopen the partition which had already been taken place and logically concluded and also taken note of the fact that however, said restriction is not applicable when the previous partition is illegal and made without allotting any share to the co-owner or co-sharer or coparcener even if it is through a registered partition deed the said restriction has not applicable to the case on hand for more than one reason. It is not the case of the partition between only the male members of the family. In the case on hand, for registered partition deed dated 24.03.2000 not only the brothers even one of the sisters of the plaintiff is a party and shares were allotted to all of them. It is not explained in the said partition deed as to why the plaintiff is not the party to the partition deed and as to why she has not been allotted any share, if her elder sister has got a share and same was allotted. Thus, it is a case of executing a registered partition deed by excluding one of the female member and in between other male members and one of - 11 - HC-KAR NC: 2025:KHC:26728 MSA No. 144 of 2024 the female member. On the face of it, said partition deed do not appears as a legally valid document. 8. The First Appellate Court also taken note of all these issues as well as the recitals of the said partition deed which has already been marked as Ex.P12 before the Trial Court and considered the same, in paragraph 22 assigned the reason that if there is a registered partition deed before the enactment of the Amended Act, it cannot be reopened by a female member by filing the suit. But it is a case of executing a registered partition deed by excluding one of the female member and allotting the share only to another female member, which is a discrimination. If the partition deed dated 24.03.2000 is only between the male members, I would have accepted the reasoning of the Trial Court in this regard, because, on the date of said partition deed, the Amendment Act, 2005 was not introduced for conferring the equal right and coparcenary status to the female members. The defendants have to explain a sto why the plaintiff has no - 12 - HC-KAR NC: 2025:KHC:26728 MSA No. 144 of 2024 share, if share has been allotted to her elder sister, who is defendant No.2. Considering these aspects, the reasoning of the Trial Court for rejection of plaint on the basis of the said partition deed is not justified. The First Appellate Court also given the reason that the disputed questions involved in this suit requires trial and appreciation of both oral and documentary evidence placed on record of both the parties, in fact, Issues were framed and trial has already been commenced and when the case was posted for the defendants’ evidence, the present application was filed. Hence, the First Appellate Court considering all these aspects, set aside the order of the Trial Court. 9. The learned counsel for the appellant in this second appeal would vehemently contend that First Appellate Court committed an error in allowing the appeal by setting aside the order of the Trial Court and the same is not justified when there was a amendment came into effect in 2005 and the counsel also would vehemently contend that partition was taken place in the year 2000 - 13 - HC-KAR NC: 2025:KHC:26728 MSA No. 144 of 2024 itself hence, this court has to admit and frame substantial questions of law. 10. 10. Having heard the learned counsel for the appellant and also on perusal of material on record, it discloses that it is not in dispute that suit schedule properties are the ancestral properties. The First Appellate Court taken note of the fact that other female members were made as parties in the partition deed but plaintiff was excluded in giving any share, thus, First Appellate Court taken note of the discrimination made by the family members. Apart from that no doubt, amendment came into existence in the year 2005 i.e., Central Amendment and the Court has to take note of the fact that there was a Karnataka Amendment in the year 1994 and the same came into effect on 31.07.1994 and alleged partition is of the year 2000. The share was given to other daughters excluding the plaintiff and the contention of the counsel for the appellant that when the partition was effected in the year 2000, the same was not questioned immediately but - 14 - HC-KAR NC: 2025:KHC:26728 MSA No. 144 of 2024 the same cannot be decided in an application filed under Order VII Rule 11 (a) and (d) when the cause of action arises for filing of the suit. When Order VII Rule 11 (d) is invoked, that is, barred by law, the same is a mixed question of fact and law. The Apex Court in a judgment reported in 2025 SCC ONLINE SC 975 in the case of P. KUMARAKURUBARAN VS. P. NARAYANAN AND OTHERS wherein the Apex Court held that the issue of law and limitation cannot be decided in an application filed under Order VII Rule 11 (d) of CPC without conducting any trial. When such being the case, I do not find any error committed by the First Appellate Court in setting aside the order passed by the Trial Court under Order VII Rule 11 (d). Hence I do not find any force in the contention of the appellant counsel that matter requires to be admitted and frame substantive question of law since, I do not find involving of substantive question of law in the matter on hand and the First Appellate Court also taken note of the judgments of the Apex Court in the cases of KUM. - 15 - HC-KAR NC: 2025:KHC:26728 MSA No. 144 of 2024 GEETHA, SHIVABASAPPA AND SMT. PRAMEELA N which were referred supra and principles were also discussed in detail while passing the said order. When such a reasoned order has been passed by the First Appellate Court, I do not find any ground to reverse the order of the First Appellate Court admitting the appeal. 11. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed. In view of dismissal of the main appeal, I.A. if any, does not survive for consideration and the same stands dismissed. Sd/- (H.P.SANDESH) JUDGE SN