- 1 - HC-KAR NC: 2025:KHC:34372 RSA No. 304 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 304 OF 2013 (POS) BETWEEN: 1. SRI VENKATESHA, AGED ABOUT 48 YEARS S/O LATE H BHAGAVANTHAPPA OCC: BUSINESS 2. SMT PADMAKSHI, AGED ABOUT 50 YEARS, W/O G MALLESHAPPA, OCC: HOUSE WIFE, 3. SMT RATHNAMMA, AGED ABOUT 73 YEARS, W/O LATE BHAGAVANTHAPPA, OCC: HOUSE WIFE, 11.01.2024 APPELLANT NO.3 IS DEAD HER LRS ARE ALREADY ON RECORD AS APPELLANT NO.1 AND 2 AND RESPONDENTS NO.1, 2 & 3 AMENDED AS PER ORDER ON IA 1/2023, DT 05.01.2024 APPELLANT NO.1 AND 2 ARE RESIDENTS OF KUMBARA BEEDI, NEW SANTHE MAIDANA, NEAR TVS SHOWROOM, CHITRADURGA - 577501. …APPELLANTS (BY SRI SOMASHEKHAR KASHIMATH, ADVOCATE FOR APPELLANTS 1 AND 2, APPELLANT NO.3 DEAD. HER LRS ARE ALREADY ON RECORD AS APPELLANTS 1, 2 AND R1 TO R3) Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:34372 RSA No. 304 of 2013 AND: 1. SMT LAKSHMIDEVI, AGED ABOUT 41 YEARS, W/O SRINIVAS, D/O LATE H BHAGAVANTHAPPA OCC: HOUSE WIFE NOW RESIDING AT 1ST MAIN ROAD, 1ST CROSS, RIGHT SIDE, PARIVARTHANA NAGARA, I U D P LAYOUT, CHITRADURGA - 577501. 2. B SHANTHARAJA, AGED ABOUT 39 YEARS, S/O LATE H BHAVAVANTHAPPA, OCC: BUSINESS, RESIDING AT NEW SANTHE MAIDANA, OPP P K UMAR PLANTAIN MERCHANT, BEHIND KANNIKA ROAD, CHITRADURGA - 577 501. 3. VIJAYALAKSHMI, AGED ABOUT 46 YEARS, W/O SUBBARAYAPPA, NOW RESIDING AT SRI NILAYA, NEAR BSNL TELEPHONE EXCHANGE, THYAGARAJANAGARA, CHALLAKERE TOWN, CHITRADURGA - 577 501. …RESPONDENTS (BY SRI K RAMA BHAT, ADVOCATE FOR R1, R2 AND R3 ARE SERVED) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 3.12.2012 PASSED IN R.A.NO.45/2010 ON THE FILE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 25.2.2010 PASSED IN OS.NO.146/2002 ON THE FILE OF CIVIL JUDGE (SR.DN.), CHITRADURGA. THIS APPEAL, COMING ON FOR DISMISSAL, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:34372 RSA No. 304 of 2013 CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT This appeal is filed against the divergent finding in a suit for partition and separate possession. 2. Admitted Genealogy is as under: 3. H.Bhagavanthappa was the propositus. Rathnamma is the wife of the propositus. The couple H.Bhavanthappa and Rathnamma had 7 children namely Vijayalakshimi, Anusuya, Padakshi, Venkatesh, Meenakshi, Lakshmidevi and Shantharaju. It is stated that Anusuya died issueless and she was unmarried. 4. The suit is filed by Lakshmidevi against her father H.Bhagavanthappa-defendant No.1 and brothers Shantharaju and Venkatesh and Sisters, Vijayalakshmi, Padmakshi. H. Bhagavanthappa S/o. H. Hanumanthappa (70) wife Smt. Rathnamma (65) Vijayalakshmii (43) Married Anusuya (Pothi) Padmakshi (39) Married Venkatesh(37) Meenakshi (Pothi) Lakshmi Devi (33) Married Shantharaju (21) - 4 - HC-KAR NC: 2025:KHC:34372 RSA No. 304 of 2013 Rathnamma the mother of the plaintiff is arrayed as defendant No.6. It is now stated that Meenakshi died in the year 1992. 5. An Application is filed before this Court by Punith who claims to be the son of Meenakshi. That application is still pending consideration as the appellants have filed objection to the said application disputing the status of Punith as son of Meenakshi. 6. Before the Trial Court, the defendants took a stand that the suit is not maintainable as the property at item No.1 is not in existence and property at items No.2 to 6 are the self- acquired properties of defendant No.1 -H.Bhagavanthappa and item No.7 is the self-acquired property of defendant No.3 and item No.8 is the self-acquired property of defendant No.2. 7. On contest, the suit is dismissed. Plaintiff filed an appeal before First Appellate Court. During the pendency of the case before the Trial Court, there was an interim order restraining defendant No.1 from alienating suit schedule properties. Before First Appellate Court three more properties were impleaded as items No.9 to 11. - 5 - HC-KAR NC: 2025:KHC:34372 RSA No. 304 of 2013 8. On contest, First Appellate Court held that item No.1 is not in existence and was sold prior to the suit. As far as items No.2 to 8 properties are concerned, First Appellate Court held the properties are self-acquired properties of defendant No.1. Items No.9 to 11 properties are held to be ancestral properties. 9. First Appellate Court also held that the transfer made by defendant No.1 during the pendency of the suit in violation of the interim order restraining transfer is invalid. Thus, First Appellate Court came to the conclusion that defendants No.2 and 3 in whose favour the transfer was made did not acquire any exclusive right over the properties. However, noticing the fact that defendant No.1 died during the pendency of the appeal, First Appellate Court held that the succession has opened in favour of the parties to the proceeding and granted 1/6th share in respect of items No.2 to 8 and granted 7/36th share in properties at items No.9 to 11 in favour of the plaintiff. - 6 - HC-KAR NC: 2025:KHC:34372 RSA No. 304 of 2013 10. Aggrieved by the aforementioned judgment and decree defendants No.3, 4 and 6 are before this Court. Defendant No.6/appellant No.3 is no more. 11. Defendant No.6 who is appellant No.3- the mother of the plaintiff has died during the pendency of this appeal. She died intestate. 12. Learned counsel appearing for the appellants would contend that First Appellate Court erred in granting decree for partition despite holding that the properties at items No.2 to 8 are the self-acquired properties of defendant No.1. It is his submission that once the finding is recorded that items No.2 to 8 are self-acquired properties of defendant No.1, First Appellate Court should have recognized the arrangement of partition made by defendant No.1 in favour of his two sons. 13. It is urged that the finding of First Appellate Court that the partition amounts to transfer and violates the interim order granted by the Trial Court and the said transfer is invalid and does not confer any right in favour of the sons in whose favour partition is effected is an erroneous finding. Thus, it is - 7 - HC-KAR NC: 2025:KHC:34372 RSA No. 304 of 2013 urged that the appeal is to be allowed and suit is to be dismissed in respect of items No.2 to 8 properties. 14. Appellants would also submit that the proposed applicant-Punith is not the son of Meenakshi, the plaintiff’s sister and without there being any material to accept the contention that Punith is the son of Meenakshi, application by said Punith to com eon record is not maintainable. It is his contention that assuming that Punith has any share in the properties, he has to establish the same before the Competent Civil Court by instituting a suit. 15. Learned counsel appearing for respondent No.1/plaintiff would submit that First Appellate Court has come to the conclusion that the properties at items No.2 to 8 are the self-acquired properties and it is an admitted fact that during the pendency of the suit, there was an interim prohibitory order against defendant No.1 restraining him from alienating items No.2 to 8 properties. Now defendant No.1 claims to have effected a partition among two sons and himself. 16. It is urged that since Trial Court and First Appellate Court have concluded that the properties are self-acquired - 8 - HC-KAR NC: 2025:KHC:34372 RSA No. 304 of 2013 properties, of defendant No.1 the documents styled as partition amounts to transfer as the said document creates right in favour of sons for first time and without a registered document there is no right conferred in favour of the plaintiff. It is also urged that First Appellate Court is justified in holding that the document of transfer is invalid for violating the Court order. 17. As far as items No.9 to 11 properties are concerned, First Appellate Court has held that the properties are the ancestral properties and taking into consideration the interpretation of amended Section 6 of the Hindu Succession Act, 1956 (for short ‘Act of 1956’) plaintiff is entitled to equal share. 18. Learned counsel appearing for the proposed respondent No.4 who has filed an application as the son of late Meenakshi - the daughter of defendant No.1 would submit that applicant has produced the SSLC marks card which reveals the name of the father as well as the mother and it is conclusive evidence of the fact that the applicant is the son of Meenakshi. It is his submission that it is not in dispute that Meenakshi is - 9 - HC-KAR NC: 2025:KHC:34372 RSA No. 304 of 2013 the daughter of defendant No.1 as such he is entitled to come on record. 19. This Court has considered the contentions raised in the backdrop of the substantial question of law framed on 22.01.2020 which reads as under: "When once the Courts below had held that the suit properties were the self acquisition of defendant No.1, was the Court below right in annulling the partition deed Ex.D28 entered in to between defendant No.1 and his sons and also Ex.D27, which was the gift deed executed by defendant No.1 in favour of his wife?" 20. The Trial Court had passed an interim order restraining the defendants from alienating the suit schedule properties during the pendency of the suit. That order was in force when the alleged partition took place on 07.10.2004. Later, the father has executed a Gift Deed in respect of the properties said to have been allotted to his share in the said partition and the said Gift Deed was executed in favour of his wife-Rathnamma on 14.08.2006 (Ex.D27). - 10 - HC-KAR NC: 2025:KHC:34372 RSA No. 304 of 2013 21. The fact that the interim order was operating against defendant No.1 is not in dispute. The question is whether the partition effected by defendant No.1 is in contravention of the interim order granted by the Court, as such the partition deed is invalid. 22. Learned counsel appearing for the appellants to substantiate his contention that the partition does not amount to transfer has referred to the judgment of the Hon’ble Apex Court in V. N. Sarin vs. Ajit Kumar Poplai and another1 and the judgment in Smt. Shakuntala vs. State of Haryana2 and K.M. Sonia Bhatia vs. State of Uttar Pradesh and Others3 23. This Court has considered the aforementioned judgments. In V.N.Sarin referred to supra, in paragraph No.10, the Hon’ble Apex Court has held that which reads as under: "10. xxx The process of partition, therefore involves the transfer of joint enjoyment of the properties by 1 AIR 1966 SC 432 2 AIR 979 SC 843 3 (1981) 2 SCC 585 - 11 - HC-KAR NC: 2025:KHC:34372 RSA No. 304 of 2013 all the coparceners into an enjoyment in severality by them of the respective properties allotted to their shares. Having regard to this basic character of joint Hindu family property, it cannot be denied that each coparcener has an antecedent title to the said property, though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the coparceners have subsisting title to the totality of the property of the family jointly, that joint title is by partition transformed into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively. If that be the true nature of partition, it would not be easy to uphold the broad contention raised by Mr Purshottam that partition of an undivided Hindu family property must necessarily mean transfer of the property to the individual coparceners." 24. The judgment in Smt. Shakuntala supra is with reference to the validity of the Gift Deed. In the instant case, Gift becomes valid provided donor namely the wife has acquired the property from defendant No.1. 25. The judgment in K.M. Sonia Bhatia supra is also with reference to the Gift Deed. - 12 - HC-KAR NC: 2025:KHC:34372 RSA No. 304 of 2013 26. It is relevant to notice that throughout, defendant No.1 has raised a contention that properties at items No.2 to 8 are the self-acquired properties. Said contention is accepted by the Trial Court. First Appellate Court also has held that the properties at items No.2 to 8 are the self-acquired properties of defendant No.1. However, he has effected a partition among his two sons and retained a share in the properties. The properties being the self-acquired properties, the partition deed effected by the father confers right in favour of his sons and his wife for first time. Thus, there is a transfer of right in favour of the sons and wife. Under these circumstances, it becomes transfer in the eye of law though it is styled as partition. 27. The judgment of the Hon’ble Apex Court referred to supra deals with a situation where the coparcenary properties are transferred among the coparceners. If it is a coparcenary property, the coparceners acquire share in the property by reason of birth and not by reason of partition in the family. The partition only determines the actual extent and boundaries of the properties allotted to respective sharers. In that context, the Hon’ble Apex Court has held that the partition of share - 13 - HC-KAR NC: 2025:KHC:34372 RSA No. 304 of 2013 among coparceners does not amount to a transfer as contemplated under the provisions of law. 28. However, in the instant case, admittedly the properties are not coparcenary properties. Thus, the partition deed so effected is nothing but an attempt to transfer the properties in violation of the Court order which restrained defendant No.1 from alienating the properties. This being the position, this Court does not find any error in the judgment passed by First Appellate Court which says that the partition effected is a transfer. 29. Learned counsel appearing for the plaintiff to substantiate his contention that the transfer of properties in violation of the Court order does not create any right in favour of the transferee would refer to the judgment of the Hon’ble Apex Court in Chander Bhan (D) through LR Sher Singh vs. Mukhtiar Singh & Ors.4 30. Considering the ratio laid down in the aforementioned judgment, this Court is of the view that transfer in the form of a partition in the instant case violates 4 Civil Appeal No.2991/2024 - 14 - HC-KAR NC: 2025:KHC:34372 RSA No. 304 of 2013 the interim order granted by this Court, as such the persons to whom the properties are allotted in the alleged partition do not acquire any exclusive right. Since sons did not acquire any right over the properties under the alleged partition and defendant No.6- Rathnamma does not acquire any right over the property under the alleged partition on subsequent transfers by Rathnamma -defendant No.6 in favour of sons are also invalid. 31. As far as properties at items No.9 to 11 are concerned, it is noticed that First Appellate Court granted a lesser share to the plaintiff. The judgment of First Appellate Court was delivered on 03.12.2012 subsequently interpretation of amended Section 6 of Act of 1956 has changed on two occasions. The Hon’ble Apex Court in Prakash vs. Phulavati5 has concluded that the amended Section 6 is prospective. Later in the year 2019, the Hon’ble Apex Court in Vineeta Sharma vs. Rakesh Sharma and others6 has held that Section 6 of the Act of 1956 is retroactive. 5 AIR 2016 SUPREME COURT 769 6 AIR 2020 SUPREME COURT - 15 - HC-KAR NC: 2025:KHC:34372 RSA No. 304 of 2013 32. This being the position, this Court is of the view that the share allotted to the plaintiff in items No.9 to 11 properties are to be modified notwithstanding the fact that there is no cross-objection or appeal by the plaintiff seeking enhancement of share. 33. The next question is whether the proposed respondent No.4 who claims to be the son of Meenakshi is entitled to come on record and to claim share. It is noticed that the appellants have filed objection to the said application disputing the claim of proposed respondent No.4. 34. In the normal course the Court could have directed the proposed respondent No.4 to file a suit to establish his claim. However, considering the nature of the dispute, without expressing any opinion on the merits of the claim of either of the parties relating to the status of proposed respondent No.4 and also considering the fact that the dispute is pending since last 23 years and also considering the fact that the appellants claim to be in exclusive possession of the properties, this Court permits the proposed respondent No.4 to come on record in Final Decree Proceeding. The Final Decree Court shall consider - 16 - HC-KAR NC: 2025:KHC:34372 RSA No. 304 of 2013 the claim of the appellants as well as the respondents and the status of proposed respondent No.4 and thereafter shall pass appropriate orders. 35. Accordingly, Second Appeal is disposed of with the above observations. 36. In view of the disposal of the main matter, application for impleading is also disposed of. SD/- (ANANT RAMANATH HEGDE) JUDGE GVP List No.: 1 Sl No.: 9