1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF SEPTEMBER 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO R.S.A. NO.2290 OF 2018 (PAR) BETWEEN: 1 . SMT. GEETHAMMA D/O. SRI.MUKUNDAPPA, AGED ABOUT 60 YEARS. 2 . SMT MAMATHA D/O SRI.MUKUNDAPPA, AGED ABOUT 58 YEARS 3 . KUSUMA D/O SRI.MUKUNDAPPA, AGED ABOUT 56 YEARS 4 . SAVITRI D/O SRI.MUKUNDAPPA, AGED ABOUT 54 YEARS 5 . SUNITHA D/O SRI.MUKUNDAPPA, AGED ABOUT 50 YEARS 6 . CHAMPAVATHI D/O SRI.MUKUNDAPPA, AGED ABOUT 44 YEARS ALL RESIDING AT: GAMA VILLAGE, SHIKARIPURA TALUK, PIN:577214. ...APPELLANTS (BY SRI. M.R.KRISHNA MURTHY, ADVOCATE FOR SRI. GOUTHAM CHAND S.F., ADVOCATE) ® 2 AND: 1 . SMT. NAYANA W/O SRI.NARASIMHAPPA, AGED ABOUT 36 YEARS 2 . SHRAVANA D/O NARASIMHAPPA, AGED ABOUT 14 YEARS, MINOR REPRESENTED BY HER MOTHER SMT.NAYANA, 3 . SMT GIRIJAMMA W/O SRI.MUKUNDAPPA, AGED ABOUT 79 YEARS ALL RESIDING AT: GAMA VILLAGE, SHIKARIPURA TALUK, PIN:577214. …RESPONDENTS (R-1 TO R-3 ARE SERVED AND UNREPRESENTED) THIS RSA IS FILED UNDER SECTION 100 READ WITH ORDER XLII RULE 1 OF CPC. PRAYING TO CALL FOR ENTIRE RECORDS AND SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, SHIKARIPURA DATED 26.10.2017 PASSED IN O.S.NO.15/2014 AND JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL JUDGE AND JMFC DATED 09.07.2018 IN RA NO.2/2018 AND CONSEQUENT UPON THE SAME, DECREE THE SUIT OF THE PLAINTIFFS FOR PARTITION AND SEPARATE POSSESSION AND PASS SUCH OTHER ORDERS AS THIS HON’BLE COURT DEEMS FIT TO PASS, TOGETHER WITH COST, IN THE INTEREST OF JUSTICE AND EQUITY. 3 THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 19.08.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV JUDGMENT The present Regular Second Appeal is filed against the judgment and decree dated 09.07.2018, in R.A.No.2/2018 passed by the Senior Civil Judge and JMFC at Shikaripura (hereinafter referred to as ‘the first appellate Court’) and the judgment and decree dated 26.10.2017, passed in O.S.No.15/2014, passed by the Court of the Principal Civil Judge and JMFC., at Shikaripura (hereinafter referred to as ‘the trial Court’). 2. The appellants herein are the plaintiffs/appellants before the Courts below and the respondent herein is the defendants/respondents before the Courts below. 3. For convenience of reference, the parties herein are referred to as per the rankings before the trial Court. 4. The plaintiffs have filed O.S.No.15/2014, passed by the Court of the Principal Civil Judge & JMFC., at Shikaripura for the 4 relief of partition and separate possession seeking their 1/6th share over the suit schedule properties by metes and bounds. 5. The case of the plaintiffs is that the plaintiffs and the husband of the defendant No.1, Sri Narasimhappa, are the children of one Sri Mukundappa. The defendant No.3 is the wife of said Mukundappa. Both Mukundappa and Narasimhappa are dead. The defendant No.2 is a minor under the care and custody of her mother, the defendant No.1 is her guardian. It is further averred that one Veeramallappa was the founder of the family and the suit schedule properties had fallen to his share under a partition among the family members. After the death of the founder, the father of the plaintiffs, Sri Mukundappa, inherited the suit properties along with his wife, son, and daughters, thereby constituting a Hindu Joint Family, and they were enjoying the same jointly. After the demise of Mukundappa, the husband of the defendant No.1 and the defendant No.3 managed the family affairs and consequently, the khatha of the properties was transferred in the name of the defendant No.3, being one of the legal heirs. 5 6. The plaintiffs further contended that the defendant No.1 failed to disclose the true income and profits derived from the suit schedule lands, and they suspected that she was misleading the income and not looking after the welfare of the family. Despite repeated demands, including a specific demand made on 02.01.2014 for partition of their legitimate share, the defendant No.1 refused to carve out their shares. Hence, the plaintiffs have instituted the suit seeking partition and separate possession of their 1/6th share in the suit schedule properties by metes and bounds. 7. Per contra, in response to the summons issued by this Court, defendants No.1 to 3 entered appearance through counsel, and defendant No.1 filed a written statement which was adopted by defendant No.2, while defendant No.3 did not file a separate written statement. Defendant No.1 admitted the relationship between the plaintiffs and the defendants but denied the other plaint averments, including the allegation that the suit properties were jointly enjoyed by the plaintiffs and defendants, or that after the death of Mukundappa, the husband of the first defendant and the third defendant were managing the welfare of the family without disclosing income. It was specifically contended that such 6 allegations of misusing or concealing income are false, and that there exists no cause of action for filing the present suit. 8. It was further contended that though the suit properties stand in the name of defendant No.3, defendants No.1 and 3 are not residing together, and after the death of her husband, defendant No.1 has been residing in her parental home. On the contrary, the fifth plaintiff and defendant No.3 are residing together and are enjoying all the income from the suit properties without paying anything to defendant No.1. It is further pleaded that plaintiff No.3 and defendant No.3 appropriated a sum of Rs.7,00,000/- being the insurance amount of her deceased husband. 9. The husband of defendant No.1 had also borrowed loans from several persons, which were discharged by defendant No.1, and one Rajendra had even instituted a suit for recovery in O.S.No.98/2010 against her. It is further urged that after the marriage of plaintiffs No.1, 2 and 4 to 6, they left to their matrimonial homes and, at the time of their marriage, they were given their share in cash; hence, they are not entitled to any further share. Defendant No.1 asserts that she is entitled to 1/3rd 7 share in the suit properties and that the plaintiffs, in collusion with defendant No.3, have instituted this suit only to harass her. Accordingly, she has prayed for allotment of her legitimate 1/3rd share. 10. Based on the pleadings, the trial Court has framed following issues for consideration:- (i) Whether the plaintiffs prove that the suit properties are their ancestral and joint family properties are having joint possession with the defendants? (ii) Whether the plaintiffs are entitled to the reliefs as sought for? (iii) What order or decree? 11. In order to substantiate their claim, the plaintiff examined herself as PW.1 and got marked the documents as Exs.P1 to Ex. P11. On the other hand, defendants neither adduced any evidence nor produced any documents. 12. The trial Court based on the pleadings, oral and documentary evidence passed the following Order: The suit of the plaintiffs is hereby partly decreed. The plaintiff no.1 to 6 each are entitled 1/6th share over the item no.1 to 3 of ‘A’ schedule properties by metes and bounds U/sec.54 of CPC. 8 The defendant no.1 and 2 together entitled 9/16th share and 3rd defendant is entitled 1/6th share over the item no.1 to 3 of ‘A’ schedule properties by metes and bounds U/Sec.54 of CPC. The claim of the plaintiffs over the ‘B’ schedule properties is dismissed. Since it is a suit between family members the parties are directed to maintain their respective costs. Draw preliminary decree accordingly. 13. Assailing the said Judgment and decree of the trial Court, the plaintiffs have preferred an appeal in R.A.No.02/2018. The first appellate Court has framed following issues for consideration:- (i) Whether impugned judgment and decree passed by the trial court calls for interference by this appellate court? (ii) What order or decree? 14. The first appellate Court after considering the facts and circumstances of the case in hand passed the following order:- The Appeal filed under Order 41 Rule 1 of CPC R/W section 96 of CPC., challenging the Judgment and decree dated 26.10.2017 passed in O.S.No.15/2014 is allowed. Consequently the Judgment and decree passed in O.S.No.15/2014 in respect of the A schedule property is confirmed. And the judgment 9 and decree in respect of the B schedule property is set aside. Accordingly the plaintiff no.1 to 6 and the 3rd defendant are entitled for 1/6th share each and the defendant no.1 and 2 are together entitled for 9/16th share in the plaint B schedule property. Office to return entire records in O.S.15/2014 to the trial court along with the copy of the judgment and decree of this appeal. 15. It is contended by the learned counsel appearing for the appellants that in the absence of a specific finding as to the date of death of Sri Mukundappa, the first appellate Court could not have applied the decision of the Apex Court in the case of Prakash & Others vs. Phulavathi, reported in 2005(4) KCCR 3265 (SC), to hold that the father died prior to 09.09.2005 and thereby restrict the appellants only to the notional share of their father. Such a finding, it is submitted, is without any evidence on record. It is further urged that the Courts below have committed a manifest error in computation of the respective shares, particularly in failing to grant any share to respondent No.3- mother, who, as a Class I legal heir, is entitled to succeed along with the wife and daughter of the deceased son. 10 16. Learned counsel for the petitioners further urged that the first appellate Court has erred in holding that the ‘B’ Schedule properties are also ancestral properties of the deceased Mukundappa and in directing partition of the same in the ratio applicable to ‘A’ Schedule properties. The said finding is based solely on the Statement of Objections filed by the third respondent in the appeal, which itself is impermissible in law, as there is no provision for filing such objections. 17. Learned counsel contended that on hearing the submissions at admission stage, this Court, vide Order dated 17.12.2020, has framed following substantial question of law: (a) Whether the Judgment and decree passed by the Court below required to be modified in view of recent Judgment of Hon’ble Supreme Court reported in 2020 SCC in the case of Vineeta Sharma vs. Rakesh Sharma and Others. Any other substantial question of law that may arise at the time of hearing. 18. The learned counsel for the appellants submitted the following substantial questions of law at the time of hearing: b) Whether the Trial Court has committed has committed an error in holding that the Judgment of the 11 Supreme Court reported in Prakash & Others vs. Phulavathi, reported in 2005(4) KCCR 3265 (SC) is applicable to the facts on hand in the absence of proof of date of death on the father of appellants viz. late Sri.Mukundappa? (c) Whether the First Appellate Court has committed an error in holding that Schedule ‘B’ properties are also the ancestral properties of the parties to the suit only on the basis of Statement of Objections filed by the Respondent No.3 to the Appeal Memo? (d) Whether the courts below have committed an error in not granting any share to the mother in the share of the deceased son as the mother is a Class-I legal heir of the deceased son as per Section 8 of the Hindu Succession Act? 19. On hearing the submissions of the counsel for the appellants, it appears that at the outset, it has to be noticed that this being a second appeal, it is only substantial question of law which gives raise for this Court to clutch the jurisdiction and answer the said question of law as otherwise, this Court would lack jurisdiction to entertain second appeal. 20. As seen from the material on record, the impugned Judgments passed by the appellate court and trial court, and also based on the submissions, this Court has observed that the trial Court has framed four issues and before the trial Court, the 12 appellants have examined the 3rd plaintiff as P.W.1 and marked as Ex.P1 to Ex.P11 and the respondents have not examined any witnesses and not marked as documents. The trial Court, after hearing both sides, partly decreed the suit granting relief of 1/16th share each over the Items No.1 to 3 of schedule ‘A’ property to the appellants No.1 to 6 and dismissed the suit in respect of the suit schedule properties. The trial Court has granted 9/16th share to the respondents No.1 and 2 together and 1/6th share to the 3rd respondent. Being aggrieved by the said Judgment and Decree, the appellants have filed a regular appeal before the first appellate Court in R.A.No.2/2018, by Judgment dated 09.07.2018, the first appellate Court has confirmed the Judgment of the trial Court in respect of the ‘B’ schedule properties holding that the ‘B’ schedule properties are also ancestral properties of the appellants and respondents. It appears that the first appellate Court modified the Order and allotted shares in the suit schedule properties. 21. It is observed that the first appellate Court, by judgment and decree of the first appellate Court dated 09.07.2018 in R.A.No.2/2018, confirmed the Order of the trial Court in respect 13 of the ‘A’ schedule property and modified the Order in respect of the ‘B’ schedule properties. 22. It is further observed that there is no dispute with regard to the relationship of the parties to the suit. This appeal is filed by the Appellants challenging the dismissal of the suit in respect of the ‘B’ schedule property and also challenged the shares allotted to the parties to the suit in the A-schedule property. Now as far as the ‘B’ schedule property, the 3rd defendant who is the mother of the plaintiff and the mother-in-law of the 1st defendant though has not filed her written statement before the trial court has filed objection to appeal memo wherein she has stated that the ‘B’ schedule property is not the her self acquired property though the documents of the said property is standing in her name. She has also stated in the said objection that she has not acquired the said property from her parents. On the other hand she has stated that the ‘B’ schedule property is mutated in her name after the death of her husband and the same also belonged to her husband's family. 23. Now on perusal of the judgment of the Trial court it very clearly goes to show that the trial Judge has rejected the claim of 14 the plaintiffs in respect of the ‘B’ schedule property as the said property stood in the name of the 3rd defendant. And the Trial court also opined that the plaintiffs had not produced any document to show that the said ‘B’ schedule property was originally belonging to their father or to show that the same is also their ancestral joint family property. Admittedly the 3rd defendant who is the mother of the plaintiffs had not filed any written statement before the trial court. But she has filed her objection to the appeal memo stating that the ‘B’ schedule property is also the property mutated in her name after the death of her husband and the same is acquired by her husband from his family. As such without any hesitation it can be safely said that the ‘B’ schedule property is not the self acquired property of the 3rd defendant. But the same is mutated in her name after the death of her husband. And also in the light of the admission given by the 3rd defendant in her objection that the ‘B’ schedule property also belonged to her husband's family, it can be safely said that the ‘B’ schedule property is also the ancestral joint family property of the plaintiffs and the defendants. 24. Now as far as the shares carved out by the Trial court in respect of the ‘A’ schedule property is concerned, the counsel for 15 the Appellants has argued that the trail Court has erred in allotting 1/16th share each to the plaintiffs and 3rd defendant and 9/16th share to the defendants no.1 and 2. It is argued that as per Section 8 of the Hindu Succession Act. After the death of Mukundappa the 3rd defendant is entitled for a share in her husband's property and in the remaining half share all the children of Mukundappa are entitled for equal share. This line of argument canvassed by the counsel for the Appellants is not only baseless but is also against the provisions of Law. Admittedly the suit ‘A’ and ‘B’ properties are not the self acquired properties of Mukundappa. There is no dispute that the suit properties are the ancestral joint family property of the plaintiffs and the defendants. Such being the case Section 8 of the Hindu succession Act is not at all applicable to the case on hand. Section 8 of the Act is applicable for division of the self-acquired properties of a male Hindu. There is no dispute with regard to the nature of the acquisition of the ‘A’ and ‘B’ schedule properties. Though the same are standing in the name of the 3rd defendant she has put in writing before this court that the ‘B’ schedule property also originally belonged to her husband's family, and only on his death the khatha is mutated in her name as that of ‘A’ schedule 16 properties. Even if it is taken into consideration that Section 8 of the Act is applicable to the case on hand, the 3rd defendant cannot claim half share in the suit properties. As per Section 8 of the Act, on the death of a male Hindu, his Class I heirs are entitled for equal shares. 25. Since the ‘A’ and ‘B’ schedule properties are the joint family properties acquired through Mukundappa the plaintiffs and the defendants are entitled for their respective shares. Admittedly Mukundappa died prior to 09.09.2005. Had Mukundappa been alive as on the date of the amendment to Section 6 of the Act then all the daughters of Mukundappa would get equal shares in the suit property as that of a son. From the documents produced and marked as Ex.P11 it goes to show that in the family partition properties were allotted in the name of 3rd defendant towards the share of her husband Mukundappa. On perusal of Ex.P11 it goes to show that Mukundappa died prior to 1998-99. As such the plaintiffs cannot get the benefit of Section 6 of the Hindu Succession (amendment) Act. At the best the plaintiffs and the 3rd defendant can get their respective shares in the share to which Mukundappa is entitled. The Trial Judge has very elaborately discussed with regard to the shares of the parties to the suit in 17 respect of ‘A’ schedule properties. Thus the opinion of the Trial court that the plaintiffs no.1 to 6 and the 3rd defendant are entitled for notional share in the ‘A’ schedule property, which is to the extent of 1/16th share each and the defendants no.1 and 2 are together entitled for 9/16th share does not call for any interference. At the cost of repetition it is to be stated that as the 3rd defendant has filed her objection to the Appeal memo and stated that the ‘B’ schedule property is not her self-acquired property but the said property has also come to their family from her husband's family. Now when the 3rd defendant only, in whose name the khatha of the ‘B’ schedule property is standing has stated that the said property is also the ancestral joint family property as pleaded by the plaintiffs, there is no difficulty for this court to allot the shares to the plaintiffs no.1 to 6 and the defendants in the ‘B’ schedule property also. At the cost of the repetition the 3rd defendant had not filled her written statement before the Trial court in their regard. The Trial court has dismissed the suit in respect of the ‘B’ schedule property only because the same is standing in the name of the 3rd defendant and also because the plaintiffs have not produced any document to show that it came to her name through her husband's family. But here 18 the 3rd defendant has stated her no objection to grant the decree of partition in respect of the ‘B’ schedule property also. 26. In view of the above discussion, it is observed that the first appellate Court modified the impugned Judgment of the trial Court and allowed the Regular Appeal by allocating shares to appellants in the ‘B’ schedule property also. While considering the substantial question of law framed by this Court and substantial question of law raised by the counsel for the appellants and on relying on the Judgment of the Apex Court reported in 2020 SCC in the case of Vineet Sharma vs. Rakesh Sharma, in view of the latest legal position, the impugned Judgment of the first appellate Court is required to modify the Judgment dated dated 09.07.2018, in R.A.No.2/2018 passed by the Senior Civil Judge and JMFC at Shikaripura. 27. This Court finds it necessary to cite the Judgment of Vineet Sharma of the Hon’ble Apex Court, relevant portion of which reads as under: 137. Resultantly, we answer the reference as under: 137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of 19 coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities. 137.2. The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004. 137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005. 137.4. The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. 137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in 20 exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly. 28. In view of the above discussion, the following Order is passed: i) Regular Second Appeal is allowed. ii) The Judgment and Decree dated 09.07.2018, in R.A.No.2/2018 passed by the Senior Civil Judge and JMFC at Shikaripura and the Judgment and Decree dated 26.10.2017, passed in O.S.15/2014, passed by the Court of the Principal Civil Judge and JMFC., at Shikaripura, are modified. iii) The plaintiffs are entitled for partition and separate possession of the suit schedule properties in the ratio of, each 1/6th share by metes and bounds. 21 iv) Considering the relationship between the parties, there is no Order as to cost. v) Draw the decree accordingly. Sd/- (DR. K.MANMADHA RAO) JUDGE BNV Ct-ADP