- 1 - HC-KAR NC: 2025:KHC:33131 RSA No. 74 of 2025 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. 74 OF 2025 (PAR/DEC) BETWEEN: 1. DEVARAJA, SINCE DEAD BY LRS SMT. T.SAVITHA, AGED ABOUT 34 YEARS, W/O. LATE DEVARAJA. 2. KUMARI NIKITHA, AGED ABOUT 13 YEARS, D/O. LATE DEVARAJA. 3. AKASH, AGED ABOUT 11 YEARS, S/O. LATE DEVARAJA. APPELLANTS 2 AND 3 ARE MINORS REPRESENTED BY THEIR MOTHER- GUARDIAN- APPELLANT NO.1-SMT. SAVITHA. ALL ARE R/O BIDARAGERI VILLAGE, SORABA TALUK, SHIVAMOGGA DISTRICT 577429 …APPELLANTS (BY SRI. CHIDAMBARA G S., ADVOCATE) AND: 1. SMT KOMALAMMA AGED ABOUT 64 YEARS, W/O. SHEKHARAPPA D.H. R/O. DEVATHIKOPPA VILLAGE, Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:33131 RSA No. 74 of 2025 MAVALLI POST, SORABA TALUK, SHIVAMOGGA DISTRICT-577429. 2. SMT. SAVITHA, AGED ABOUT 43 YEARS, D/O. SHEKHARAPPA D.H. R/O. DEVATHIKOPPA VILLAGE, MAVALLI POST, SORABA TALUK, SHIVAMOGGA DISTRICT-577429. 3. SMT. SHASHIKALA, AGED ABOUT 41 YEARS, D/O. SHEKHARAPPA D.H. R/O. DEVATHIKOPPA VILLAGE, MAVALLI POST, SORABA TALUK, SHIVAMOGGA DISTRICT-577429. 4. SRI. UMESH D.H, AGED ABOUT 37 YEARS, S/O. SHEKHARAPPA D.H. R/O. DEVATHIKOPPA VILLAGE, MAVALLI POST, SORABA TALUK, SHIVAMOGGA DISTRICT-577429. 5. SMT. SAROJAMMA, AGED ABOUT 44 YEARS, W/O. TOPANNA, R/O. BIDARAGERI VILLAGE, KASABA HOBLI, UDRI POST, SORABA TALUK-577429. SHIVAMOGGA DISTRICT. …RESPONDENTS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE ORDER DATED 26.09.2024 PASSED IN RA NO.10004/2019 ON THE FILE OF V ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA, SITTING AT SAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 01.11.2018 PASSED IN OS NO.11/2015 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, SORABA. - 3 - HC-KAR NC: 2025:KHC:33131 RSA No. 74 of 2025 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri Chidambara G.S., learned counsel for the appellant. 2. Defendant in O.S.No.11/2015 is the appellant in this second appeal. 3. Facts in the nutshell, which are utmost necessary for the disposal of the appeal, are as under : 3.1. A suit for partition came to be filed by Komalamma, being the daughter of Sarekoppada Dyavappa and Eramma along with Savitha, Shashikala and Umesh, who are the children of Komalamma, claiming share in the suit property contending that, the suit properties are the joint family properties. 3.2. It is further contended that defendant is the son of foster daughter of Sarekoppada Dyavappa and he has denied the legitimate share of the plaintiffs and therefore, the plaintiffs sought for partition and separate possession. - 4 - HC-KAR NC: 2025:KHC:33131 RSA No. 74 of 2025 4. Suit on contest came to be decreed holding that plaintiff no.1 is the daughter of Dyavappa and Eramma and plaintiffs no.2 to 4, children of plaintiff no.1, are entitled for half share and, the defendant is entitled for other half share in the suit properties. 5. Thereafter, the defendant being aggrieved by the said judgment and decree passed by the trial Court, preferred an appeal in R.A.No.10004/2019 before the District & Sessions Court, Shivamogga, sitting at Sagar. 6. The learned Judge of the first appellate Court after securing the records, heard the arguments of the parties in detail and, on re-appreciation of the oral and documentary evidence and also on the legal aspects, dismissed the appeal of the defendant confirming the judgment and decree of the Trial Court. 7. Being further aggrieved by the same, the defendant is before this Court in this second appeal on the following grounds and substantial questions of law. - 5 - HC-KAR NC: 2025:KHC:33131 RSA No. 74 of 2025 1. The judgment and decree of both the Courts are opposed to law. facts and circumstances of the case and hence liable to be set aside. 2. The judgment and decree passed by both the Courts are totally contrary to law, facts and legal evidence available on record. 3. That both the Courts have failed to apply law to the admitted facts and circumstances of the case and thereby passed erroneous judgments and decree. 4. The first appellate Court has failed to comprehend the facts pleaded by the defendant/appellant and the law on the point which has caused total miscarriage of justice to the appellant. 5. The trial Court has failed to frame proper issues and those framed did not cover the pleadings of the parties. 6. That both the Courts have not drawn proper inferences and those drawn are illegal and erroneous. 7. Both the Courts have failed to raise proper presumptions and those raised are illegal and probabilities have not been given due weightage. 8. The first appellate Court has failed to formulate proper points for its consideration as per the provisions of Order 41 of CPC. Further the first appellate Court ought to have reassessed the oral and documentary evidence in a proper perspective as it is the final court on facts of the case in terms of Section 96 of CPC. 9. The first appellate Court has erred in rejecting I.A.No.I filed seeking permission to produce additional evidence. By the said application, the defendant No.1/appellant sought produce three family trees and oral evidence of two witnesses who are conversant with the family of plaintiffs and defendants. However, the first appellate Court has erroneously rejected the said application on highly untenable grounds. 10. The first appellate Court erred in holding while rejecting L.A.No.1 that the defendant No.1 in his written - 6 - HC-KAR NC: 2025:KHC:33131 RSA No. 74 of 2025 statement has admitted that plaintiff No.1 is the sister of Neelamma. In his written statement at paragraph No.11, the defendant No.1 has clearly and categorically stated that the plaintiff No.1 is not the real sister of Neelamma, but she is the daughter of Neelamma's first fostered father and mother. The first appellate Court lost sight of this categorical pleading and erroneously comes to the conclusion that defendant No.1 has admitted that plaintiff No.1 is the real sister of Neelamma. 11. The first appellate Court failed to appreciate that the defendant No.1 in the affidavit filed in support of I.A.No.I has sufficiently shown the cause for non-production of the documentary and oral evidence sought to be produced in the appeal before trial Court. Under such circumstances, rejection of I.A.No.I is illegal, opposed to law, facts and circumstances of the case and liable to be set-aside. 12. The first appellate Court failed to pass any orders on the application filed in the appeal by the defendant No.1/appellant under Order 6 Rule 17 seeking permission to amend his written statement. 13. In the Regular Appeal before first appellate Court, the 1st defendant made application under Order 6 Rule 17 of CPC seeking permission to replace paragraph No.6 of his written statement by way of amendment. By way of amendment, defendant No.1 wanted replacement of paragraph No.6 of written statement which is more in the nature of explanation to what has been pleaded in original paragraph No.6. This amendment was required in order to decide the controversy between the parties and inspite of exercise of due diligence, the defendant No.1 could not have filed application for amendment before the commencement of trial or during pendency of suit. In the appeal while going through the judgment of trial Court, it was noticed that more explanation is required regarding relationship between the parties and hence immediately made application for amendment. However, the first appellate Court failed to pass orders on the application and hence entire judgment of first appellate Court is liable to be set-aside. 14. The first appellate Court failed to notice that the Court is required in law to dispose of all the interlocutory - 7 - HC-KAR NC: 2025:KHC:33131 RSA No. 74 of 2025 applications filed in the case and in the event of disposing of the main matter without considering the interim application, final decision or judgment vitiates on the sole ground of non-consideration/non-disposal of pending application. 15. That both the Courts have failed to notice that the plaintiff No.1 has not entered in to witness box to prove the disputed family tree. When the relationship between the plaintiff No.1 and defendant No.1 is in serious dispute and an issue was also framed to that effect casting burden on the plaintiffs to prove the issue, the plaintiff No.1 should have entered into witness box and deposed regarding relationship. Instead of examining plaintiff No.1 herself, plaintiffs have examined plaintiff No.4 who is the son of plaintiff No.1 as PW1. The PW1 is not competent to depose about the relationship between the plaintiff No.1 and defendant No.1 and as such the Courts ought to have held issue No.1 in favour of the defendant No.1 by holding that the genealogy is not proved. 16. The trial Court and also the first appellate Court have failed to notice that if really the defendant No.1 is the son of fostered daughter of parents of plaintiff No.1 as contended by the plaintiffs, there was no question of the plaintiffs claiming only half share in the suit schedule properties and the plaintiff No.1 being the only legal heir to her parents would have entitled to entire suit schedule properties. The averments made in the plaint itself show that the plaintiffs have suppressed the material facts and come with the suit for partition based on false and concocted family tree. 17. That both the trial Court and first appellate Court have failed to notice that, the defendant No.1 with necessary documentary proof and oral evidence has established before the trial Court that he is the adopted son of Dyavappa S/o Manchappa and Eramma @ Maryakka and that the plaintiff No.1 is the daughter of one Halagalale Erappa and Eramma and that she is not the family member of defendant No.1 and hence plaintiffs are not entitled for any share in the suit schedule property. - 8 - HC-KAR NC: 2025:KHC:33131 RSA No. 74 of 2025 18. The Courts have failed to notice that except producing alleged family tree, the plaintiffs have not proved the same with cogent and acceptable materials. When the defendant No.1 has seriously disputed the contention of the plaintiffs regarding the relationship between plaintiffs and defendant No.1 by contending that the alleged family tree produced by plaintiffs is a created one, it was expected from the plaintiff to prove the relationship with corroborative evidence. However, the plaintiffs have failed in proving the relationship and hence suit is liable to be dismissed. 19. That both the Courts have failed to notice that under the registered adoption deed-Ex.D1 dated 23-04-1984 defendant No.1 who is the biological son of Neelamma and Ramappa was given in adoption to the couple Dyavappa and Eramma and in this document it was clearly recited that Neelamma is the daughter of Dyavappa and Eramma and there was no reference to the plaintiff No.1 who claims that she is the daughter of Dyavappa. If really plaintiff No.1 was the daughter of Dyavappa and Eramma, the same would have been mentioned in the registered adoption deed dated 23-04- 1984. This material fact clearly shows that the case of the plaintiffs is false and baseless and that plaintiff No.1 is not the daughter of Dyavappa and Eramma. 20. It is submitted that the plaintiffs, except producing disputed genealogical tree, have not produced any other documents like birth certificate, school records or such other documents to establish that plaintiff No.1 is the daughter of Dyavappa and Eramma. 21. As per plaint, the plaintiff No.1 was aged about 55 years and her daughters-plaintiffs 2 and 3 were respectively aged about 34 years and 32years as on the date of filing of the suit and. This shows that plaintiff No.1 was aged about 24 years as on the date of registration of adoption deed-ExD1 dated 23-04-1984 and that she was already married and two daughters were also born to her. However, there is absolutely no reference with regard to plaintiff No.1 in the adoption deed and on the other hand it recites that defendant No.1 was adopted to take care of - 9 - HC-KAR NC: 2025:KHC:33131 RSA No. 74 of 2025 properties and person of Dyavappa and Eramma. These facts situation placed on record clearly show that the theory of plaintiff that plaintiff No.1 is the daughter of Dyavappa and Eramma is false and hence in that view of the matter suit is liable to be dismissed. 22. The Courts have erred in holding that the plaintiffs proved The genealogical tree was prepared as per the genealogy-Ex.P3. Information given by plaintiff No.1 and therefore no evidentiary value can be attached to the same. The oral evidence of PW1 to PW3 is not helpful to the plaintiffs to prove the relationship as they have expressed ignorance about several material facts during the course of cross examination. The PW1 who is the son of plaintiff No.1 has expressed ignorance when put a question to the effect that Neelamma was first fostered by Erappa and after birth of Komalamma, she was second time fostered by Dyavappa. PW1 further deposed that he has given school records of his mother i.e. plaintiff No.1 to his advocate. However, no such document is marked in evidence. Therefore, it is clear that the plaintiffs have utterly failed to prove the relationship as contended in the plaint and hence suit is liable to be dismissed. 23. Both the Courts have failed to notice that, in the absence of corroborative evidence, it cannot be held that the plaintiff No.1 is the natural daughter of Dyavappa and Eramma solely on the basis of allged family tree-Ex.P3. 24. The evidence of PW2 and PW3 is full of contradictions and not worth to believe. PW3 who claims that she is the close relative of the parties stated in the cross examination that, Dyavappa fostered Neelamma as he had no children and that Dyavappa adopted the defendant No.1 to increase in lineage and that no documents are available to show that 1st plaintiff is the daughter of Dyavappa. Under such circumstances judgment and decree of both the Courts granting decree of partition holding that 1st plaintiff is the daughter of Dyavappa and Eramma is illegal, opposed to law, facts and circumstances of the case. 25. The finding of first appellate Court that the defendant No.1 has admitted the relationship of plaintiff No.1 and - 10 - HC-KAR NC: 2025:KHC:33131 RSA No. 74 of 2025 Neelamma as sisters is Incorrect, opposed to the law, facts and circumstances of the case. What defendant No.1 stated in the written statement was that plaintiff No.1 and Neelamma are not direct sisters and that Neelamma was first fostered by Halagalale Erappa and Eramma and the plaintiff No.1 is the natural daughter of said Eramma and Eramma and in that way they are the sisters. However, the Courts have completely misread the pleading of the defendant No.1 and thereby erroneously held that the plaintiff No.1 is the daughter of Dyavappa and Eramma l.e. the adoptive father and mother of defendant No.1. 26. Both the Courts have failed to appreciate the recital in the registered adoption deed-Ex.D1 which says that Neelamma is the daughter of Dyavappa and Eramma and that defendant No.1 is the son of Neelamma. The name of plaintiff No.1 is not even mentioned in the adoption deed which clearly falsifies the case of plaintiffs that plaintiff No.1 is the daughter of adoptive father of defendant No.1 27. The judgment and decree of both the Courts are otherwise illegal, opposed to law, facts and circumstances of the case and hence liable to be set-aside. SUBSTANTIAL QUESTIONS OF LAW A) Is the first appellate Court justified in rejecting the application filed by appellants under Order 41 Rule 27 of CPC seeking permission to produce additional evidence? B) Whether the judgment and decree of first appellate Court vitiates for not considering and passing orders on the application filed by appellants seeking permission to amend his written statement? C) Is the trial Court and first appellate Court were justified in law in holding that the plaintiff No.1 is the natural daughter of adoptive father and mother of defendant No.1 solely on the basis of Ex.P3-family tree which was prepared as per the information given by plaintiff No.1? D) Whether the trial Court and the first appellate Court were justified in holding that plaintiff No.1 is the daughter - 11 - HC-KAR NC: 2025:KHC:33131 RSA No. 74 of 2025 of adoptive father and mother of defendant No.1 when Ex.D1-registered adoption deed recites that Neelamma, who is the natural mother of defendant No.1, is the daughter of adoptive parents of defendant No.1 and that there is no reference to plaintiff No.1 in Ex.D1? E) Is the trial Court and the first appellate Court have misread and misinterpreted Ex.D1-adoption deed and the pleading and evidence of defendant No.1 and thereby erroneously decreed the suit of the plaintiffs holding that plaintiff No.1 is the daughter of adoptive parents of defendant No.1? F) Whether the judgment and decree of both the Courts are sustainable in law having regard to the oral and documentary evidence produced by the defendant No.1? G) Whether the findings of both the Courts are illegal and perverse resulting in miss-carriage of justice to appellant being contrary to oral and documentary evidence on record? 8. Sri Chidambara, learned counsel for the appellant, reiterating the grounds urged in the memorandum of appeal, contended that the Trial Court as well as the first appellate Court, grossly erred in holding that plaintiff no.1 is the daughter of Dyavappa and Eramma. 8.1. He also contended that dismissal of the application filed by the defendant seeking to place additional evidence on record by the first appellate Court has rendered miscarriage of justice. - 12 - HC-KAR NC: 2025:KHC:33131 RSA No. 74 of 2025 8.2. He also argued that as, appeal is a continuation of the suit, application seeking amendment of pleadings to amend the written statement by the defendant being not considered by the First Appellate Court resulted in miscarriage of justice and therefore, sought for admitting the appeal. 9. On the aforesaid contentions and the substantial questions of law, this Court has perused the material on record meticulously. 10. On such perusal of material on record, admittedly defendant is the adopted son of Dyavappa and Eramma and in fact, plaintiff no.1 is their only daughter. 11. When the nature of the property is not in dispute and a defence is taken that, plaintiff no.1 is not the daughter of Dyavappa and Eramma, sufficient material evidence has to be placed on record to substantiate the said plea. - 13 - HC-KAR NC: 2025:KHC:33131 RSA No. 74 of 2025 12. Sri Chidambara, learned counsel for the defendant however, invited the attention of this Court to the cross examination of plaintiff no.4-Umesh, son of plaintiff no.1, who has admitted that, he has given the school records to the Advocate and that it has been misplaced in the Advocate office. 13. In view of the fact that no relatives are examined to establish that Komalamma is a stranger to the family, the Trial Court, placing reliance on the genealogical tree and considering the other material evidence in a cumulative manner, holding that plaintiffs were successful in establishing that, plaintiff no.1 is the daughter of Dyavappa and Eramma and decreeing the suit by granting half share to the plaintiffs and remaining half share to the defendant, who is the adopted son of Dyavappa and Eramma, is just and proper which requires no further consideration in this appeal. 14. Hence, the following : - 14 - HC-KAR NC: 2025:KHC:33131 RSA No. 74 of 2025 ORDER (i) Appeal is meritless and is accordingly dismissed. (ii) However, the appellant/defendant is entitled to seek equitable partition in the final decree proceedings. Sd/- (V SRISHANANDA) JUDGE rs List No.: 2 Sl No.: 10