- 1 - NC: 2025:KHC-D:4433 RSA No. 5126 of 2009 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 7TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 5126 OF 2009 (-) BETWEEN: 1. VENKATRAMAN SHINNAPPA NAIK, SINCE DECEASED BY HIS LR’S. 1(A) SARVESHWAR VENKATRAMAN NAIK, AGED ABOUT 64 YEARS, OCC: BUSINESS, R/O. MALLAPUR, U.K. DISTRICT. 1(B). SMT. SAVITRI KOM NARAYAN NAIK, AGED ABOUT 58 YEARS, OCC: HOUSEHOLD, R/O. CHANDAVAR, HONNAVAR, U.K. DISTRICT. 1(C). GANESH VENKATRAMAN NAIK, AGED ABOUT 56 YEARS, OCC: AGRICULTURE, R/O. KONALLI, HONNAVAR, U.K. DISTRICT. 1(D). SHRIDHAR VENKATRAMAN NAIK, AGED ABOUT 54 YEARS, OCC: AGRICULTURE, R/O. KONALLI, HONNAVAR, U.K. DISTRICT. 1(E). DATTATRAYA VENKATRAMAN NAIK, AGED ABOUT 52 YEARS, OCC: EMPLOYEE IN FOREST DEPT., R/O. SIRSI, U.K. DISTRICT. 1(F). SHINU VENKATRAMMAN NAIK, AGED ABOUT 49 YEARS, OCC: BUSINESS, R/O. CHANDAVAR, HONNAVAR, U.K. DISTRICT. 1(G). ARUN VENKATRAMAN NAIK, AGED ABOUT 47 YEARS, OCC: AGRICULTURE, R/O. KONALLI, HONNAVAR, U.K. DISTRICT. …APPELLANTS (BY SRI. GANAPATHI S. SHASTRI, SRI. S.G. KADADAKATTI & SRI. LINGESH V. KATTEMANE, ADVOCATES) MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:4433 RSA No. 5126 of 2009 AND: 1. YASHODA KOM DEVAPPA NAIK, SINCE DECEASED BY HER LR’S. 1(A) SUBBAIAH DEVAIAH NAIK, AGED ABOUT 68 YEARS, OCC: AGRICULTURE, R/O. ABBOLLI, SANTIGULI POST-581323, KUMTA TALUK, U.K. DISTRICT. 1(B) SMT. NAGAVENI GANAPATI NAIK, AGED ABOUT 65 YEARS, OCC: HOUSEHOLD WORK, R/O. NATHGERI, HONNAVAR TALUK-581334, UTTAR KANNAD DISTRICT. 1(C) SADANAND DEVAPPA NAIK, AGED ABOUT 58 YEARS, OCC: SERVICE, FIRE BRIGADE STATION SIRSI-581401, UTTAR KANNAD DISTRICT. 1(D) SUDHA RAMACHANDRA NAIK, AGED ABOUT 54 YEARS, OCC: HOUSEHOLD WORK, R/O. TALGODU URKERI, KUMTA TALUK-581343, UTTAR KANNAD DISTRICT. MADEV SHINGAPPA NAIK, SINCE DECEASED BY HIS LR’S. 2(A) SMT. SUSHEELA KOM MADEV NAIK, AGED ABOUT 70 YEARS, OCC: HOUSEHOLD, R/O. KONALLI, KUMTA TALUK-581343, UTTAR KANNADA DISTRICT. 2(B) K.M. ARUNDHATI D/O. MADEV NAIK, AGED ABOUT 39 YEARS, OCC: HOUSEHOLD, R/O. KONALLI, KUMTA TALUK-581343, UTTAR KANNADA DISTRICT. 2(C) M.S. JAGADISH RAO S/O. MADEV NAIK, AGED ABOUT 37 YEARS, OCC: AGRICULTURE, - 3 - NC: 2025:KHC-D:4433 RSA No. 5126 of 2009 R/O. KONALLI, KUMTA TALUK-581343, UTTAR KANNADA DISTRICT. 2(D) ANJANA MADEV NAIK, AGED ABOUT 37 YEARS, OCC: AGRICULTURE, R/O. KONALLI, KUMTA TALUK-581343, UTTAR KANNADA DISTRICT. 3. KESHAV NARAYAN NAIK, AGED ABOUT 68 YEARS, OCC: AGRICULTURE, R/O. KONALLI, KUMTA TALUK-581343, UTTAR KANNADA DISTRICT. 4. SHEKAR NARAYAN NAIK, AGED ABOUT 49 YEARS, OCC: AGRICULTURE, R/O. KONALLI, KUMTA TALUK-581343, UTTAR KANNADA DISTRICT. …RESPONDENTS (BY SRI. J.S. SHETTY, ADVOCATE FOR R1(A-D) & R2(A-D); SRI. D.J. NAIK, ADVOCATE FOR R4; R3-SERVED AND UNREPRESENTED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT & DECREE DATED 21/11/2008 PASSED IN R.A.NO.232/2006 ON THE FILE OF LEARNED CIVIL JUDGE (SR.DN), KUMTA AND CONFIRM THE JUDGMENT AND DECREE DATED 28/7/2005 PASSED IN O.S.NO.49/2003 ON THE FILE OF THE LEARNED CIVIL JUDGE (JR.DN), KUMTA BY ALLOWING THE ABOVE APPEAL WITH COST IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH - 4 - NC: 2025:KHC-D:4433 RSA No. 5126 of 2009 ORAL JUDGMENT This Regular Second Appeal is preferred by the legal representatives of plaintiff, challenging the judgment and decree dated 21.11.2008 passed in RA No.232/2006 on the file of Civil Judge (Sr.Dn.) Kumta, (for short, hereinafter referred to as ‘First Appellate Court’), modifying the shares of the parties by allowing the appeal and setting aside the judgment and decree dated 28.07.2005 passed in OS No.49/2003 on the file of Principal Civil Judge (Jr.Dn.), Kumta (for short, hereinafter referred to as ‘Trial Court’), decreeing the suit of the plaintiff in part. 2. For the sake of convenience, the parties in these appeals shall be referred to in terms of their status and ranking before the trial Court. 3. It is the case of the plaintiff that, the plaintiff, defendant No.1 and defendant No.4 are the children of Shinnappa and therefore, it is contended by the plaintiff that the marriage of the defendant No.4 was celebrated by investing the joint family properties and therefore, it is - 5 - NC: 2025:KHC-D:4433 RSA No. 5126 of 2009 contended by the plaintiff that, the plaintiff and defendant No.1 are entitled for half share in the suit schedule properties. 4. After service of summons, the defendant No.1 entered appearance admits the relationship with the plaintiff and sought for equitable share in the suit schedule properties. It is also stated by the defendant No.1 in the written statement that, his sister- Smt. Yashoda has not been arraigned as a party at the time of filing of the suit and accordingly, sought for dismissal of the suit for non joinder of party. 5. Defendant Nos.2 and 3 are no way concerned with the joint family properties of Shinnappa and his children. Defendant No.4 was impleaded subsequently in the suit. 6. On the basis of the rival pleadings, the Trial Court has formulated issues for its consideration. 7. In order to establish their case, plaintiff himself was examined as PW1 and got marked 16 documents as Exs.P1 to P.16. On the other hand, defendant No.1 was - 6 - NC: 2025:KHC-D:4433 RSA No. 5126 of 2009 examined as DW1 and no documents were produced by the defendant. 8. The Trial Court, after considering the material on record, by its judgment and decree dated 28.07.2005 decreed the suit of the plaintiff holding that the plaintiff and defendant No.1 are entitled for half share in schedule properties in Sl. Nos.1 to 12. Feeling aggrieved by the same, the defendant No.4 has preferred Regular Appeal in RA No.232/2006 on the file of First Appellate Court and the said appeal was resisted by the plaintiff. The First Appellate Court after re-appreciating the facts on record, by its judgment and decree dated 21.11.2008 allowed the appeal in part holding that, the plaintiff, defendant No.1 and 4 are entitled for equal share in the suit schedule properties. Feeling aggrieved by the same, the legal representatives of the plaintiff have preferred this Regular Second Appeal. 9. This Court vide order dated 18.02.2014 formulated the following substantial question of law. - 7 - NC: 2025:KHC-D:4433 RSA No. 5126 of 2009 i) Whether the First Appellate Court has committed a serious error in not properly reassessing the evidence in the right perspective and coming to the conclusion that defendant No.4 is also entitled for 1/3rd share in suit schedule properties and thereby reducing the share of defendant No.1 to 1/3rd instead of ½? ii) Whether lower appellate Court is justified in applying the provisions of Section 6 of the Hindu Succession Act, as amended w.e.f. 09.09.2005, when the succession had open prior to the filing of the suit, more particularly when defendant No.4 was born prior to 1956? 10. I have heard Sri. Ganapathi S. Shastri, learned counsel appearing for the appellants, Sri.J. S. Shetty, learned counsel appearing for the respondent Nos.1(A-D) and 2(A-D) and Sri. D. J. Naik, learned counsel appearing for respondent No.4. 11. Learned counsel for the appellants contended that the father of the plaintiff died during 1968 and as on the date of opening of succession on account of death of - 8 - NC: 2025:KHC-D:4433 RSA No. 5126 of 2009 the father of the plaintiff, defendant No.4 being a married daughter prior to the death of her father and therefore, not entitled for share in the suit schedule properties. 12. It is also contended by the learned counsel appearing for the appellant that, the item No.13 of the suit schedule properties was given to the defendant No.4 prior to the death of the father of the plaintiff and therefore, the defendant No.4 is not entitled for equitable share with the plaintiff and defendant No.1 and accordingly, sought for interference of this Court. 13. Learned counsel appearing for the respondents sought to justify the impugned judgment and decree passed by the First Appellate Court, in the light of the judgment of the Hon’ble Supreme Court in the case of Vineeta Sharma Vs. Rakesh Sharma and Others1. 14. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below and perused the record. In order to ascertain the 1 AIR 2020 SC 3717 - 9 - NC: 2025:KHC-D:4433 RSA No. 5126 of 2009 relationship between the parties as averred in the plaint, the genealogy reads as under: Nagappa (propositus) Shinnappa (died during 1968) Venkatraman Madeva Yashoda (plaintiff) (defendant No.1) (defendant No.4) 15. On careful consideration of genealogy it is not in dispute that the plaintiff, defendant No.1 and defendant No.4 are the children of late Shinnappa who died during 1968. Undisputably, there is no partition between the parties before or after the death of their father. It is also to be noted that, the item No.13 of the suit schedule properties was given to defendant No.4 at the time prior to death of her father as ‘Stree Dhan’. Therefore, the item No.13 of schedule property is exclusive property of defendant No.4. Taking into consideration the declaration of law made by the Hon’ble Supreme Court in the case of Vineeta Sharma (supra), daughter is also consider as coparcener along with the son and therefore, plaintiff, - 10 - NC: 2025:KHC-D:4433 RSA No. 5126 of 2009 defendant Noi.1 and defendant No.4 are entitled for 1/3rd share in the suit schedule properties excluding item No.13 of the suit schedule properties. 16. In that view of the matter, the substantial question of law referred to above favours the defendant Nos.1 and 4 and no interference is called for in this appeal. Accordingly, appeal is dismissed. 17. In view of the dismissal of the appeal, pending applications are dismissed. Sd/- (E.S.INDIRESH) JUDGE SMM CT-MCK List No.: 1 Sl No.: 28