- 1 - NC: 2025:KHC-D:3983 RSA No. 100495 of 2015 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 28TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100495 OF 2015 BETWEEN: 1. SMT. HONAWWA W/O. KALLAPPA SHINDOLKAR SINCE DECEASED BY HER LRS. 1(a). SMT. SHANTA W/O. MAHADEV BHATKANDE AGE: 58 YEARS, OCC: HOUSE HOLD WORK, R/O. AMBEWADI, TAL & DIST: BELAGAVI. 1(b). SMT. VIDYA @ RUKMINI WD/O. VITHAL SHINDOLKAR AGE: 50 YEARS, OCC: HOUSE HOLD WORK R/O. HONAGA, TAL & DIST: BELAGAVI. 1(c). SHRI. VIKAS S/O. VITHAL SHINDOLKAR AGE: 32 YEARS, OCC: SERVICE WORK R/O. HONAGA, TAL & DIST: BELAGAVI. 1(d). SHRI. VIJAY S/O. VITHAL SHINDOLKAR AGE: 30 YEARS, OCC: SERVICE WORK, R/O.HONAGA, TAL& DIST: BELAGAVI. 1(e). SHRI. BABU S/O. KALLAPPA SHINDOLKAR ASHPAK KASHIMSA MALAGALADINNI Digitally signed by ASHPAK KASHIMSA MALAGALADINNI - 2 - NC: 2025:KHC-D:3983 RSA No. 100495 of 2015 AGE: 55 YEARS, OCC: AGRICULTURE R/O. HONAGA, TAL & DIST: BELAGAVI. 1(f). SHRI. SHIVAJI S/O. KALLAPPA SHINDOLKAR AGE: 52 YEARS, OCC: AGRICULTURE, R/O. HONAGA, TAL & DIST: BELAGAVI. …APPELLANTS (BY SRI. A.B. NESARGI, ADVOCATE) AND: 1 . SHRI. BHAIRU S/O MAHADEV SAMBHAJICHE, AGE:71 YEARS, OCC:AGRICULTURE, R/O: KEDNUR, TQ and DIST: BELAGAVI. PIN : 591 143. 2 . SMT. SHEWANTA W/O SHANKAR DHUDUM, AGE: 69 YEARS, OCC: HOUSEHOLD WORK, R/O: TANAJI GALLI, HONAGA, TQ and DIST: BELAGAVI. PIN : 591 123. 3 . SMT. PADMAVATI W/O KALLAPPA PIROJI, AGE: 57 YEARS, OCC:HOUSEHOLD WORK, R/O: CHIKKALGUD VILLAGE, TQ: HUKKERI, DIST: BELAGAVI. DIST: 591 309. 4 . SHRI. NANA S/O MAHADEV SAMBHAJICHE, AGE: 53 YEARS, OCC:AGRICULTURE, R/O: KEDNUR, - 3 - NC: 2025:KHC-D:3983 RSA No. 100495 of 2015 TQ and DIST: BELAGAVI. PIN - 591 143. 5 . SHRI. YALLAPPA S/O. MAHADEV SAMBHAJICHE, AGE: 51 YEARS, OCC: AGRICULTURE, R/O: KEDNUR, TQ and DIST: BELAGAVI. PIN : 591 143 6 . SMT. SHANTA W/O. RAMU BALEKUNDRI, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: HONAGA VILLAGE, TQ and DIST: BELAGAVI. PIN : 591 123. 7 . KUMARI. MALU D/O. RANU BALEKUNDRI, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: HONAGA VILLAGE, TQ and DIST: BELAGAVI. PIN : 591 123. 8 . SMT. VANDANA W/O SURESH RAKSHE, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: AMBEWADI VILLAGE, TQ and DIST: BELAGAVI. PIN : 591 108. 9 . SMT. BALAWWA W/O BHAVAKU RAKSHE, SINCE DECEASED BY HER LRS. 9a. SHRI. GANGARAMA S/O. BHAVAKU RAKSHE AGE: 55 YEARS, OCC: PENSIONER R/O. H.NO.1325, LAXMI NAGAR, - 4 - NC: 2025:KHC-D:3983 RSA No. 100495 of 2015 GANESHPUR, HINDALA, BELAGAVI. 9b. SHRI. KALLAPPA S/O BHAVAKU RAKSHE AGE: 55 YEARS, OCC: AGRICULTURE, R/O. AMBEWADI, TAL & DIST: BELAGAVI 9c. SHRI. SURESH S/O. BHAVAKU RAKSHE AGE: 49 YEARS, OCC: AGRICULTURE, R/O. AMBEWADI, TAL & DIST: BELAGAVI. 9d. SHRI. MAHADEV S/O. BHAVAKU REKSHE AGE: 49 YEARS, OCC: AGRICULTURE, R/W. AMBEWADI, TAL & DIST: BELAGAVI. 10 . SMT. LAXMI D/O. SANTU BALEKUNDRI, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: HONAGA VILLAGE, TQ and DIST: BELAGAVI. PIN : 591 123. 11 . SMT. LAXMI W/O. CHANDRAKANT PATIL, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: RANAKUNDE, POST: SANTIBASTWAD, TQ and DIST: BELAGAVI. PIN : 591 124. - 5 - NC: 2025:KHC-D:3983 RSA No. 100495 of 2015 12 . MISS. VARSHA D/O. SANTU BALEKUNDRI, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: HONAGA VILLAGE, TQ and DIST: BELAGAVI. PIN : 591 123. 13 . SHRI. MARUTI S/O. SANTU BALEKUNDRI, AGE: MAJOR, OCC: AGRICULTURE, R/O: HONAGA VILLAGE, TQ and DIST: BELAGAVI. PIN : 591 123. …….RESPONDENTS (R1 TO R5, R9 (A, B & D), R11 AND R12 SERVED AND UNREPRESENTED; SRI. SHIVARAJ S. BALLOLLI, ADVOCATE FOR R6 TO R10, R13 & R9 (C) ------- THIS RSA IS FILED UNDER SECTION 100 CPC, PRAYING TO ALLOW THE TOP NOTED APPEAL, BY SETTING ASIDE THE JUDGMENT AND DECREE DATED 10.04.2015 IN R.A. NO.99/2014 PASSED BY THE HON’BLE III ADDITIONAL DISTRICT JUDGE, BELAGAVI CONFIRMING THE JUDGMENT AND DECREE PASSED IN O.S.NO.128/1994, DATED 26.04.2014 PASSED BY THE HON’BLE III ADDITIONAL SENIOR CIVIL JUDGE, BELGAUM, IN THE INTEREST OF JUSTICE AND EQUITY. IN THIS APPEAL ARGUMENTS BEING HEARD, RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH - 6 - NC: 2025:KHC-D:3983 RSA No. 100495 of 2015 ORAL JUDGMENT This appeal is preferred by plaintiff assailing the judgment and decree dated 10.04.2015 in RA No.99/2014 on the file of III Additional District Judge, Belagavi (for short, hereinafter referred to as ‘First Appellate Court’), dismissing the appeal and confirming the judgment and decree dated 26.04.2014 in OS No.128/1994 on the file of III Additional Senior Civil Judge, Belgaum (for short, hereinafter referred to as ‘Trial Court’), dismissing the suit. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that, one Samani – original propositus had five children namely Honnawwa (plaintiff), Satawwa (defendant No.1), Balawwa (defendant No.5), Ranu (wife of defendant No.2 and father of defendant Nos.6 and 7) and Santu (defendant No.6). It is the case of the plaintiff that, the plaintiff and defendants constitute Hindu Joint Family and the suit properties are the ancestral properties of plaintiff and defendants. It is - 7 - NC: 2025:KHC-D:3983 RSA No. 100495 of 2015 also stated that some of the properties are granted by the Land Tribunal under the provisions of Land Reforms Act in favour of two sons of Samani (Ranu and Santu). It is stated in the plaint that, the plaintiff being the daughter of late Samani and as such, the plaintiff is entitled for 1/5th share in the suit schedule properties, accordingly, the plaintiff filed suit in OS No.128/1994 before the Trial Court. 4. Upon service of notice, the defendant No.1 entered appearance however, has not filed written statement. Defendant No.4 remained absent and accordingly, placed ex-parte. The defendant No.2 has filed written statement and contended that the plaintiff is aged about 60 years and she is born prior to 1956 and therefore, the plaintiff cannot claim share in the suit schedule properties. 5. Based on the pleadings on record, the Trial Court has formulated the issues and additional issues for its consideration. - 8 - NC: 2025:KHC-D:3983 RSA No. 100495 of 2015 6. In order to establish their case, the plaintiff herself examined as PW1 and produced 28 documents and same were marked as Ex.P.1 to P.28. The defendants have examined three witnesses as DW1 to DW3 and no documents were produced by the defendants. The Trial Court after considering the material on record by its judgment and decree dated 26.04.2014 dismissed the suit holding that the plaintiff born prior to 1956 and therefore, the plaintiff is not entitled for share in the joint family properties. Feeling aggrieved by the same, the plaintiff has preferred RA No.99/2014 before the First Appellate Court and the said appeal was resisted by the defendants. The First Appellate Court after considering the material on record by its judgment and decree dated 10.04.2015, dismissed the appeal and as such, confirmed the judgment and decree in OS No.128/1994. Feeling aggrieved by the same, the plaintiff/appellant has preferred this appeal. 7. This Court by order 15.06.2017 framed the following substantial question of law: - 9 - NC: 2025:KHC-D:3983 RSA No. 100495 of 2015 “Whether both the Courts below are justified in dismissing the suit of the plaintiff for partition only on the ground that plaintiff was born prior to 1956?” 8. I have heard Sri. A.B. Nesargi, learned counsel appearing for the appellant and Sri. Shivaraj S. Balloli, learned counsel appearing for the respondent Nos.6 to 10, 13 and 9(C). Respondent Nos.1 to 5 and 9(A, B and D) are served and unrepresented. 9. Sri. A.B. Nesargi, learned counsel appearing for the appellant argued that the plaintiff being a daughter of original propositus – Samani and therefore, the plaintiff is entitled for share in the suit schedule properties and accordingly, sought for interference of this Court. 10. Per contra, Sri. Shivaraj S. Balloli, learned counsel appearing for the respondents sought to justify the impugned judgment and decree. 11. In the light of submissions made by the learned counsel appearing for the parties, I have carefully - 10 - NC: 2025:KHC-D:3983 RSA No. 100495 of 2015 examined the relationship between the parties and same is extracted below: Samani (propositus) Satawwa Balawwa Honnawwa Ranu Santu (Def.1) (Resp.9) (Appellant) (dead) (dead) (dead) Shanta (wife) (Resp.6) Malu Vandana (Resp.7) (Resp.8) Laxmi Laxmi Varsha Maruti (Resp.10) (Resp.11) (Resp.12) (Resp.13) Bhairu Shevantha Padmavathi Nana Yallappa (Resp.1) (Resp.2) (Resp.3) (Resp.4) (Resp.5) 12. Perusal of the genealogy would indicate that, the original propositus Samani had five children namely Honnawwa (plaintiff), Satawwa (defendant No.1), Balawwa (defendant No.5), Ranu (wife of defendant No.2 and father of defendant Nos.6 and 7) and Santu (defendant No.6). It is the case of the plaintiff that, the suit schedule properties are the joint family properties of Samani and accordingly, the plaintiff is entitled for share in the properties. In this regard, it is to be borne in mind that the parties are - 11 - NC: 2025:KHC-D:3983 RSA No. 100495 of 2015 governed by erstwhile Bombay State and also the plaintiff is born prior to 1956 and therefore, the plaintiff cannot be considered as a co-parcenery in the joint family of late Samani and his children. In this regard it is relevant to cite the judgment of the Hon’ble Supreme Court in the case of Kasabai Tukaram Karvar and Others Vs. Nivruti (dead) Through Legal Heirs and Others1. Paragraph Nos.13 to 16 of the said judgment reads as under: “13. The learned counsel for the plaintiff, no doubt, relied upon Section-72 of Part-I, Chapter VI-Order of Succession to Males in the Bombay State in Mulla on Hindu Law, 23rd Edition which is reproduced below:- 72. Order of succession in cases governed by Mitakshara- The following is the order of succession to males among sapindas in the Bombay State in cases governed by Mitakshara: (1-6) Son, son's son (whose father is dead) and son's son's son (whose father and grandfather are both dead). These inherit simultaneously. Under Act XVIII of 1 2022 SCC Online SC 918 - 12 - NC: 2025:KHC-D:3983 RSA No. 100495 of 2015 1937, the widow, the predeceased son's widow, and the widow of a predeceased son of a predeceased son, are also recognised as heirs. xxxxxx (7) Daughter xxxxxx In the Bombay State, daughter do not take as joint tenants with benefit of survivorship, but they take as tenants-in- common. Further, a daughter in that State does not take a limited estate in her father's property, but takes the property absolutely. Thus, if Hindu governed by the Bombay School dies leaving two daughters, each daughter takes an absolute interest in a moiety of her father's estate, and holds it as her separate property, and on her death her share will pass to her own heirs as her stridhana. xxxxx 14. There are other heirs but they are not being referred to. We must, in the facts of this case, proceed on the basis that the adopted son (first defendant), being a son on applying the doctrine of relation back, would exclude the daughter. This result flows from the statement that the persons in serial Nos.1 to 6, namely, son, son's son (whose - 13 - NC: 2025:KHC-D:3983 RSA No. 100495 of 2015 father is dead) and son's son's son (whose father and grandfather are both dead) inherit simultaneously. 15. We would hold that if there is a son, the daughter would not be entitled to share along with the son. The daughter, in other words, would not be a legal heir who would take simultaneously with the son. The example which, in fact, has been set out and which we have extracted would only be applicable in a situation where there were only daughters and no son. 16. It is, undoubtedly, true that in view of the Hindu Women's Rights to Property Act, 1937 (XVIII of 1937), the widow, inter- alia, is also recognized as an heir. There was, as on the date when the succession opened, in this case in the year 1948, the daughter (the appellant) who would not have any right. The daughter would not be a coparcener which she, undoubtedly, is under the present dispensation in view of the sweeping developments which took place in the matter of succession which have been ushered in as a result of the Hindu Succession Act and the changes that have been engrafted therein. The plaintiff daughter would not be an heir, in view - 14 - NC: 2025:KHC-D:3983 RSA No. 100495 of 2015 of the notional existence of the adopted son by virtue of the doctrine of relation back.” (Emphasis Supplied) 13. Following the declaration of law made by the Hon’ble Supreme Court, the plaintiff is governed by the Hindu Women’s Rights to Property Act, 1937 and being a daughter to late Samani, the plaintiff is not entitled for share in the suit schedule properties along with her brothers and the said aspect of the matter has been considered by both the Courts below in detail and rightly arrived at a conclusion that the Hindu Succession Act, 1956 is not applicable to the plaintiff as she has born prior to the promulgation of Hindu Succession Act, 1956 and belong to Bombay School of Succession. 14. 14. In that view of the matter, both the Courts below have rightly held that the plaintiff is not entitled for share in the joint family property of late Samani and therefore, the substantial question of law framed above held in favour of the defendants. - 15 - NC: 2025:KHC-D:3983 RSA No. 100495 of 2015 15. In the result, appeal fails. Sd/- (E.S.INDIRESH) JUDGE SMM List No.: 1 Sl No.: 1