- 1 - NC: 2025:KHC-D:6079 RSA No. 5169 of 2013 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF APRIL 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 5169 OF 2013 (PAR-) BETWEEN: GEETHA D/O. ANDENEPPA MALEKOPPA, AFTER MARRIAGE CALLED AS GEETHA @ SHOBHA W/O. JAGADISH HULLUR, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, R/O. HIREMANNUR, TALUK: RON, DISTRICT: GADAG. …APPELLANT (BY SRI. J.S. SHETTY, ADVOCATE) AND: …RESPONDENTS (BY SRI. B.V. SOMAPUR, ADVOCATE FOR R1; R2-DECEASED. VIDE ORDER DATED 02/08/2024 AND R1 IS LR OF DECEASED R2 SRI. SHRIKANT T. PATIL, ADVOCATE FOR R3) 1. VIJAYANAND S/O. ANDENAPPA MALEKOPPA , AGE: 49 YEARS, OCC: AGRICULTURE & BUSINESS, R/O. TAGORE ROAD, GADAG, DISTRICT: GADAG. 2. (SMT. SUSHILA W/O. ANDANEPPA MALEKOPPA, AGE: 72 YEARS, OCC: HOUSEHOLD WORK & BUSINESS, R/O. TAGORE ROAD, GADAG, DISTRICT: GADAG.) SINCE DECEASED THE APPELLANT AND THE RESPONDENT NO.1, WHO ARE ALREADY ON RECORD. AMENDED AS PER THE ORDER OF THE COURT DATED 28/02/2023. 3. SHEKARAPPA CHANNAPPA HOSAMANI, AGE: 65 YEARS, R/O. TAGORE ROAD, GADAG, DISTRICT: GADAG. ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:6079 RSA No. 5169 of 2013 THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 PRAYING THAT THE JUDGMENT AND DECREE DATED 5/12/2012 PASSED IN R.A.NO.18/2012, BY THE FAST TRACK COURT GADAG, MAY KINDLY BE SET ASIDE AND THE JUDGMENT AND DECREE DATED 19/01/2012 PASSED BY THE CIVIL JUDGE (SR.DN.) GADAG IN O.S.NO.202/2003, MAY KINDLY BE RESTORED BY DECREEING THE SUIT FILED BY THE APPELLANT, BY ALLOWING THIS APPEAL WITH COST THROUGHOUT IN THE ENDS 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 ORAL JUDGMENT This appeal is preferred by the plaintiff, challenging the judgment and decree dated 05.12.2012 passed in RA No.18/2012 on the file of Fast Track Court at Gadag (for short, hereinafter referred to as ‘First Appellate Court’), allowing the appeal and setting aside the judgment and decree dated 19.01.2012 passed in OS No.202/2003 on the file of Civil Judge (Sr.Dn.), Gadag (for short, hereinafter referred to as ‘Trial Court’), decreeing the suit of the plaintiff. - 3 - NC: 2025:KHC-D:6079 RSA No. 5169 of 2013 2. For the sake of convenience, the parties in this appeal 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 and defendant No.1 are children of Andanappa (died on 07.08.1968) and Sushila (defendant No.2). It is stated that the suit schedule properties are the joint family properties of the plaintiff and defendants and as such, the plaintiff made a claim for 1/3rd share in the suit schedule properties and same was denied by the defendants and as such, the plaintiff has filed OS No.202/2003 seeking relief of partition and separate possession in respect of the suit schedule properties. 4. After service of summons, the defendants entered appearance and filed detailed written statement. It is the specific contention of the defendant No.1 that, the defendant No.1 has performed the marriage of the plaintiff and also paid Rs.75,000/- to the plaintiff through Bank transfer and as such the plaintiff has given up her share in - 4 - NC: 2025:KHC-D:6079 RSA No. 5169 of 2013 the suit schedule properties and accordingly, sought for dismissal of the suit. 5. On the basis of the rival pleadings, the Trial Court has formulated issues for its consideration. 6. In order to establish their case, plaintiff herself was examined as PW1 and got marked 10 documents as Exs.P1 to P10. On the other hand, defendant No.1 was examined as DW1 and produced 08 documents as Exs.D1 to D8. 7. The Trial Court, after considering the material on record, by its judgment and decree dated 19.01.2012 decreed the suit of the plaintiff holding that the plaintiff is entitled for 1/3rd share in all the suit schedule properties. Being aggrieved by the same, the defendants have preferred Regular Appeal in RA No.18/2012 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 05.12.2012 allowed the appeal and as such, set aside the judgment and decree passed by the Trial Court in OS - 5 - NC: 2025:KHC-D:6079 RSA No. 5169 of 2013 No.202/2003. Being aggrieved by the same, the appellant/plaintiff has preferred this Regular Second Appeal. 8. This Court vide order dated 26.06.2013 formulated the following substantial question of law. “Whether lower appellate court was justified in reversing the judgment and decree passed by trial court in awarding 1/3rd share to plaintiff?” 9. I have heard Sri. J. S. Shetty, learned counsel appearing for the appellant and Sri. B. V. Somapur, learned counsel appearing for the respondent No.1. 10. It is contended by the learned counsel appearing for the appellant that, the suit schedule properties are the ancestral properties of her father and the properties which have been purchased by the defendant No.1 are through the income derived from the joint family properties and accordingly, sought for 1/3rd share in the suit schedule properties. 10.1. It is also submitted by the learned counsel appearing for the appellant that, the mother of the plaintiff and defendant No.1 died during the pendency of this - 6 - NC: 2025:KHC-D:6079 RSA No. 5169 of 2013 appeal and accordingly, submitted that, as the defendant No.2 died leaving behind a testament and to that extent the plaintiff is given up her rights and therefore, he contended that the plaintiff be awarded by 1/3rd share in the suit schedule properties. 11. Per Contra, Sri. B. V. Somapur, learned counsel appearing for the respondent No.1 submits that, the First Appellate Court after considering the material on record rightly dismissed the suit of the plaintiff and same cannot be interfered with in this appeal. It is also contended by the learned counsel appearing for the respondent that, the defendant No.1 is B.E. graduate and employed under a contractor and out of the income of his volition, the defendant No.1 had purchased certain properties which requires to be excluded from the joint family properties. 11.1. It is also contended by the learned counsel appearing for the respondent that, the defendant No.2 – mother of the defendant No.1 and plaintiff died on 08.05.2020, bequeathing her share in the properties in - 7 - NC: 2025:KHC-D:6079 RSA No. 5169 of 2013 favour of defendant No.1 as per Will dated 06.02.2020 and therefore, sought for dismissal of the appeal. 12. 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 relationship between the parties as averred in the plaint, the genealogy reads as under: Andanappa (died on 07.08.1968) Sushila (defendant No.2) (died on 08.05.2020) Vijayakumar Geetha (D1) (plaintiff) 13. Perusal of the genealogy would indicate that the defendant No.1 and the plaintiff are the children of Andanappa, who died on 07.08.1968 and Sushila (defendant No.2) died on 08.05.2020 during the pendency of the appeal. - 8 - NC: 2025:KHC-D:6079 RSA No. 5169 of 2013 14. Perusal of the finding recorded by the Trial Court would indicate that, the schedule properties are the joint family properties of late Andanappa and his children and therefore, following the declaration of law made by the Hon'ble Supreme Court in the case of Vineeta Sharma Vs. Rakesh Sharma and Others1, the daughter has to be considered as co-parcener in the joint family. Though the learned counsel for the parties submitted that, the defendant No.2 died leaving behind as Will dated 06.02.2020 during the pendency of the appeal and in this regard even if, the legacy under the said Will is excluded from the joint family property, plaintiff is entitled for 1/3rd share in the suit schedule properties. 15. To the said aspect, the learned counsel appearing for the parties have acceded to the same and not counter the said aspect of the matter. In that view of the matter, I am of the view that the substantial question of law referred to above favours the plaintiff. 1 AIR 2020 SC 3717 - 9 - NC: 2025:KHC-D:6079 RSA No. 5169 of 2013 16. In the result, I pass the following: ORDER i) Appeal is allowed. ii) Judgment and decree dated 05.12.2012 in RA No.18/2012 on the file Fast Track Court, Gadag, is hereby set aside. iii) Judgment and decree dated 19.01.2012 in OS No.202/2003 on the file of Civil Judge (Sr.Dn.) at Gadag, is hereby confirmed holding that, the plaintiff is entitled for 1/3rd share and the defendant No.1 is entitled for 2/3rd share in the suit schedule properties. Sd/- (E.S.INDIRESH) JUDGE SMM / CT-MCK List No.: 1 Sl No.: 36