- 1 - RFA No. 100311/2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 28TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO.100311 OF 2020 BETWEEN: 1. SHRI. MAHANTESH GANGAPPA ANGADI AGE:41 YEARS, OCC: AGRICULTURE, R/O: NEGINHAL, TQ: BAILHONGAL. 2. SHRI. MADIWALAPPA GANGAPPA ANGADI AGE:35 YEARS, OCC: AGRICULTURE, R/O: NEGINHAL, TQ: BAILHONGAL. …APPELLANTS (BY SMT. SHAILA BELLIKATTI, ADVOCATE) AND: 1 . SMT. NEELAWWA, W/O BASANAGOUDA PATIL AGE:33 YEARS, OCC: HOUSEHOLD WORK, R/O: AMBADATAGGI, TQ.BAILHONGAL-581112. 2 . SHRI. GANGAPPA GOUDAPPA ANGADI AGE:75 YEARS, OCC: AGRICULTURE R/O: NEGINHAL, TQ BAILHONGAL-591102. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA Date: 2025.03.15 11:30:34 +0530 - 2 - RFA No. 100311/2020 3 . SHRI. BASAPPA GANGAPPA ANGADI AGE:52 YEARS, OCC: AGRICULTURE R/O: NEGINHAL, TQ. BAILHONGAL-591102. 4 . SMT. CHANNAWWA, W/O GANGAPPA ANGADI AGE:69 YEARS, OCC:HOUSEHOLD WORK, R/O: NEGINHAL, TQ BAILHONGAL-591102 …RESPONDENTS (BY SRI. BALAGOUDA A. PATIL, ADVOCATE FOR R1 AND R2; SERVICE OF NOTICE TO R3 IS HELD SUFFICIENT; R4 SERVED AND UNREPRESENTED) THIS RFA IS FILED UNDER SECTION 96 READ UNDER ORDER 41 RULE 1, 2 AND 23(A) OF THE CPC., PRAYING TO, SET ASIDE THE JUDGMENT AND DECREE DATED 04.03.2020 PASSED IN O.S.NO.80/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE, BAILHONGAL, AND REMAND BACK THE APPEAL BY SETTING ASIDE EXPARTE JUDGMENT AND DECREE BY PROVIDING REASONABLE OPPORTUNITY FOR THE APPELLANT NO.2 TO CONTEST THE SUIT AND TO AWARD 2/3RD SHARE TO THE APPELLANT IN THE SUIT PROPERTIES THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 17.02.2025, THIS DAY, UMESH M ADIGA, J., DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 3 - RFA No. 100311/2020 CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) Defendant No.2 and 3 in O.S.No.80/2017, have preferred this appeal against the judgment and decree dated 4th March 2020, passed by the learned Senior Civil Judge, Bailhongal, (for short, `trial Court’). The plaintiffs have filed the suit for partition and it was partly decreed by the trial Court. 2. We refer to the parties as per their ranks before the trial Court. 3. The propositus of the family was one Goudappa Angadi. He was married to Smt.Neelawwa Angadi. Goudappa has two sons by name Basalingappa and Gangappa (plaintiff No.2). Plaintiff No.2 married to defendant No.4 Smt.Channawwa and from their marital life, they have three sons by name Basappa, Mahantesh and Madiwalappa (defendant Nos.1 to 3 respectively) and a daughter by name Neelawwa (plaintiff No.1). - 4 - RFA No. 100311/2020 4. Plaintiffs further contend that suit properties bearing Survey No.121/6, measuring 4 acres 24 guntas (excluding 6 guntas of kharab land) and Survey No.113, totally measuring 2 acres 6 guntas and out of which, gunta was phot kharab land, were ancestral properties of plaintiffs and defendant Nos.1 to 3. Plaintiffs succeeded to the said properties by M.E.No.6144 in the partition. The said land bearing Survey No.121/6 was allotted to the share of defendant Nos.1 to 3 and at that time they were minors and defendant No.4 was appointed as guardian of the said minors. From the income earned from the land bearing Survey No.121/6, defendant No.4 purchased the land bearing Survey No.113. The said properties have been peacefully enjoyed by the parties to the suit as joint family properties. It is further contended that plaintiffs have 2/6th share in the said properties. They have demanded for partition, but defendants refused to effect the partition. Therefore, they have filed the suit. 5. Defendant Nos.1 and 4 have filed joint written statement and they admitted the genealogy, as well as - 5 - RFA No. 100311/2020 suit properties as joint family properties. They contended that each of them have 1/6th share in the suit properties, which may be awarded to their share. 6. The main contention of defendant No.2, who is contesting before the trial Court that their great grand mother Smt. Neelawwa succeeded to the suit schedule property from her mother and she was the absolute owner of the said property. She transferred the said property in the name of her husband Goudappa and mutation entry was recorded in this regard. The said Goudappa had two sons one is Basalingappa and another is plaintiff No.2. The said Goudappa during his lifetime partitioned the said properties given to him by Neelawwa. In the said partition, he gave Sy.No.120 measuring 4 acres 12 guntas and Sy.No.138/1A measuring 2 acres 15 guntas to Basalingappa; and given the property bearing Sy.No.121/6 measuring 4 acres 24 guntas and Sy.No.138/B measuring 2 acres 2 guntas in favour of defendant Nos.1 to 3. Thereby defendant Nos.1 to 3 are absolute owners of the said property. The plaintiff or defendant No.4 had no right - 6 - RFA No. 100311/2020 over the said property. The suit properties are not joint family properties and hence plaintiffs have no share in the said property. With these reasons, defendant No.2 prayed to dismiss the suit. 7. The said Goudappa during his life time partitioned above three properties in favour of his son Basalingappa and defendant Nos.1 to 3, accordingly M.E.No.6144, dated 20.03.1958 was ordered. Further, Goudappa allotted half share of Survey No.120/6, measuring 4 acres 12 guntas and Survey No.138/1, measuring 2 acres 15 guntas to his son Basalingapa and remaining half were given in favour of grandson i.e., defendant Nos.1 to 3. Since defendant Nos.1 to 3 were minors at that point of time, defendant No.4 was appointed as a guardian of the said minors and names of defendant Nos.1 to 3 were entered in the revenue records. On behalf of minor defendant Nos.1 to 3, defendant No.4 sold Survey No.138/1B, measuring 2 acres 2 guntas to one Siddappa Harugoppa and out of the sale proceedes, he purchased Survey No.113, measuring 2 acres 5 guntas. Therefore the said properties are not joint - 7 - RFA No. 100311/2020 family properties and plaintiffs have no right over the said properties. 8. It is also contended that plaintiffs have not added house property bearing GP.No.694/1. Therefore suit is bad for not including all the joint family properties. Since the plaintiffs have no right over the suit properties, question of demanding for partition do not arise and there was no cause of action for the plaintiffs to file the suit. With these reasons, defendant No.2 prayed to dismiss the suit with cost. 9. Defendant No.3 was placed ex parte before the trial Court. 10. From the rival contentions of the parties, the trial Court framed following issues: (1) Whether the plaintiffs, defendant No.1 and 4 prove that, the suit properties are the ancestral joint family properties of themselves and defendant No.2 and 3? (2) Whether the plaintiffs, defendant No.1 and 4 prove that they have got 1/6th share each in the suit properties? - 8 - RFA No. 100311/2020 (3) Whether the defendant No.2 proves that Goudappa Angadi effected oral partition among his son basalingappa Angadi and defendant No.1 to 3 and jointly allotted suit Sy.No.121/6 and other landed properties in favour of defendant No.1 to 3? (4) Whether defendant No.2 further proves that, suit Sy.No.113 is the exclusive property of defendant No.1 to 3? (5) Whether the defendant No.2 further proves that, house property including open space bearing GP No.694/1 situated at Neginhal village, is also the joint family property of himself and defendant No.1 and 3 (6) Whether the plaintiffs, defendant No.1 and 4 are entitled for the relief claimed in their respective pleadings? (7) What order or decree? 11. Plaintiffs to prove their case, examined plaintiff No.2 as PW-1 and got marked Exs.P-1 to P-3. Defendant No.1 got examined himself as DW-1 and defendant No.2 was examined DW-2 and got marked 10 documents as per Exs.D-1 to D-10. 12. The learned trial Judge after hearing both parties and appreciating the pleadings and evidence on record, - 9 - RFA No. 100311/2020 decreed the suit, granting 1/5th share to each plaintiff Nos.1 and 2 and defendant Nos.1 to 3 by the impugned judgment and decree. The same is challenged in the present appeal by defendant Nos.2 and 3. 13. We have heard the arguments of learned counsels appearing for both parties. 14. Learned counsel appearing for the appellants/ defendant Nos.2 and 3 would submit that plaintiffs have given incomplete and incorrect genealogy in the plaint. The father of plaintiff No.2 was one Goudappa and his wife was Neelawwa. The suit property No.1 was succeeded by Goudappa and Neelawwa relinquished her right over the properties bearing Survey No.120/6, Survey No.121/6 and Survey No.138/1, in favour of her husband Goudappa. Thereafter Goudappa during his lifetime, partitioned the said properties and allotted Sy.No.121/6 measuring 4 acres 30 guntas including pot karab and Sy.No.138/1 measuring 2 acres 2 guntas in favour of defendant No.1 to 3. At that time, defendant No.1 to 3 were minors, hence - 10 - RFA No. 100311/2020 the name of defendant No.4 is appearing through their minor guardian mother. Accordingly, mutation entries were effected. Since Survey No.138/1 was sub-divided, the property allotted to the share of Basalingappa was considered as Survey No.138/1A and property allotted to the share of defendant Nos.1 to 3 was renumbered as Survey No.138/1B. After the partition, the said properties were enjoyed on behalf of defendant Nos.1 to 3. Thereafter defendant No.4 as a guardian of defendant Nos.1 to 3, sold Survey No.138/1B, measuring 2 acres 15 guntas to one Siddappa Harugoppa and from the sale proceeds, purchased Survey No.113, measuring 2 acres 6 guntas in favour of defendant Nos.1 to 3. Defendant Nos.1 to 3 are the absolute owners of both the said properties and they are not joint family or ancestral properties. Plaintiffs have no right to claim share in the said properties. 15. Learned counsel for the appellants submits that the trial Court in the impugned judgment considered these facts and rightly rejected the contention of the plaintiffs - 11 - RFA No. 100311/2020 that suit properties are ancestral and joint family properties. However, learned trial Judge decreed the suit and granted 1/5th share to each plaintiffs. The learned counsel for the appellants further submits that appellants have produced the records to substantiate their contentions. They were considered by the trial Court, but erroneously held that the plaintiffs are entitled for share. Therefore, the said findings are not tenable in law and prays to set aside the same. 16. Learned counsel for the respondents supported the impugned judgment and contended that if the properties are Stridhan properties of wife of Goudappa and she relinquished her right over the said properties in favour of Goudappa, but there is no registered document. Moreover, Goudappa who claims to be the absolute owner, had relinquished his right over the properties in favour of his son and grandson and the said documents is also not the registered document. On the contrary, just giving a vardi and change of mutation does not create any right, title or interest over an immovable property. Admittedly, - 12 - RFA No. 100311/2020 both the properties are valuable properties and Neelawwa did not execute registered document to transfer her rights over the suit properties in favour of Goudappa and similarly Goudappa did not execute any registered document to transfer the properties in the name of Basalingappa and defendant Nos.1 to 3. In view of the said reasons, rights over the immovable properties could not have been transferred in the name of defendant Nos.1 to 3. 17. Learned counsel for the respondents further submits that if the properties are absolute properties of Smt. Neelawwa then after her death plaintiff No.2 and his brother alone entitled to the properties left over by the Neelawwa as per Section 15 of the Hindu Succession Act. Defendant No.3 have no right over the said properties. 18. As already stated above, Goudappa did not give the said properties by means of any registered documents. And hence plaintiff No.2 is entitled for entire extent of the properties allotted to the share of defendant Nos.1 to 3. - 13 - RFA No. 100311/2020 Considering these facts, the learned trial Judge granted the relief in favour of plaintiffs. The learned trial Judge moulded the relief and granted the same in favour of both plaintiffs and defendant Nos.1 to 3. With these reasons, he prayed to dismiss the appeal. 19. Following points emerge for our determination : (i) Whether the suit properties are partable properties? (ii) Whether the learned trial Judge erred in allotting 1/5th share to each plaintiffs and defendant Nos.1 to 3 and interference in the said findings is required? (iii) Whether the suit was bad for non-inclusion of the partionable properties. (iv) Whether additional evidence sought to be produced by the appellants are necessary to pass effective judgment? Our findings on the above points are: 20. Point Nos.1 and 2 :- Before coming to the facts of the case, it is necessary to mention that the suit was filed in Bailhongal Civil Judge Court. Admittedly plaintiffs are rustic villagers and residing in a village of Bailhongal Taluk. Plaintiff No.1 is a married daughter and plaintiff - 14 - RFA No. 100311/2020 No.2 is her father, aged about 72 years. It appears they were denied their rights for partition, therefore they approached the Court for partition in the joint family property. Therefore the contention of the learned counsel for the respondents that plaintiff Nos.1 and 2 could not give the instructions to their counsel in accordance with law or proper facts before the learned counsel appearing for them and the learned counsel is practicing in Afzalpur Court could not understand the case of the plaintiffs and filed the suit on the premise that suit properties are ancestral and joint family properties only on the basis of mutation entries. In view of these reasons, there is some mistake in the pleadings of the parties before the trial Court. Only on that basis, the rights of the plaintiffs cannot be denied. 21. The relationship between the parties and genealogy of the family is not in dispute. One Gundappa had two sons i.e., plaintiff No.2 and his brother Basalingappa. Plaintiff No.4 is wife of plaintiff No.2 and plaintiff No.1 and defendant Nos.1 to 3 are daughter and - 15 - RFA No. 100311/2020 sons of plaintiff No.2 and defendant No.4. Trial Court materials prove that the suit properties were succeeded by Smt. Neelawwa from her mother and they were stridhan properties of Smt. Neelawwa. The said Neelawwa during his life time transferred then in the name of Goudappa (her husband)by giving waradhi to revenue authority. Accordingly, revenue records mutated. The Goudappa during his life time transferred them by giving waradhi to revenue department in the name of his another son Basalingappa and grand sons defendant Nos.1 to 3. Out of properties allotted to the defendant Nos.1 to 3, the defendant No.4 sold Survey No.138, measuring 2 acres 2 guntas in Survey No.138/1B and purchased Survey No.113 of said village, measuring 2 acres 6 guntas. These facts are not in dispute. Therefore, let us scan the evidence both oral and documentary led by the parties. 22. PW-1 is plaintiff No.2 and he has reiterated the plaint averments and in the cross-examination, he has stated that the suit properties were not succeeded by his father Goudappa; House property No.694/1 is not his - 16 - RFA No. 100311/2020 father’s property; His mother Smt.Neelawwa succeeded to the suit properties and other properties from her mother. He admits that his mother relinquished the said properties in the name of his father, accordingly, M.E.No.3354, dated 26.09.1950 was recorded. He also admits that Goudappa allotted the properties given to him in favour of his son Basalingappa and grand-sons defendant Nos.1 to 3. He admits the said facts, but stated that it was behind his back and he was unaware about the said facts. He also admits that suit properties were the absolute properties of his father. He has also stated about allotment of properties in favour of his brother Basalingappa. He also admits that Survey No.138/1B, measuring 2 acres 2 guntas was sold for Rs.10,000/- by the defendant No.4 being the guardian for the minor defendant Nos.1 to 3 and purchased Survey No.113, measuring 2 acres 6 guntas from the said sale proceeds. Therefore, he stated that plaintiffs have share in the suit properties. 23. The RTC of Survey No.121/6, measuring 4 acres 24 guntas is produced at Ex.P-1 and it is standing in the - 17 - RFA No. 100311/2020 name of defendant Nos.1 to 3; RTC of Survey No.113, measuring 2 acres 5 guntas is produced at Ex.P-2 and it is standing in the name of defendant No.2; Ex.P-3 is Mutation Entry No.6144, dated 10.01.1958, by which Goudappa allotted properties belonging to him in Survey No.120/6, measuring 4 acres 12 guntas, Survey No.138/1A, measuring 2 acres 15 guntas, standing in the to Basalingappa and Survey No.121/6, measuring 4 acres 24 guntas and Survey No.138/1B, measuring 2 acres 2 guntas in favour of defendant Nos.1 to 3 and appointed defendant No.4 as guardian since all the three defendants were minor at that point of time. 24. Defendant No.1 got himself examined as DW-1 and in his evidence he has stated that the suit properties are joint family properties he admits the case of the plaintiffs. He further contended that the house property bearing No.694/1 is his self acquired property. He purchased the rights of defendant Nos.2 and 3 over said house under registered Sale Deed dated 16.05.2013, by paying Rs.78,000/- to defendant Nos.2 and 3. He also - 18 - RFA No. 100311/2020 stated that he paid the shares of plaintiffs and defendant No.4 in the said house by cash. Therefore, it is his absolute property. There was no need to include said house property in the suit as it was not a joint family property on the date of filing of the suit. 25. In his cross-examination by the plaintiffs’ side, he denied a suggestion that the suit properties were belonging to his grandmother Smt.Neelawwa and Neelawwa relinquished her rights over the suit properties in favour of her husband Goudappa. He further stated that these properties were allotted to the shares of defendant Nos.1 to 3 by his grandfather. The case of defendant No.2 were suggested to him and he denied most of the suggestions and according to him, these properties were given to defendant Nos.1 to 3 by their grandfather. 26. Defendant No.2 was examined as DW-2 and in his evidence he has stated that suit properties along with two other properties were belonging to Neelawwa and she - 19 - RFA No. 100311/2020 succeeded to the said properties from her mother and she relinquished her right over the said properties in favour of her husband Goudappa and Goudappa divided the said properties during his life time and allotted them in favour of his another son Basalingappa and also to his grandsons – defendant Nos.1 to 3 and accordingly mutation entries were made. He has also stated about sale of one of the properties allotted to the shares of defendant Nos.1 to 3 i.e., Survey No.138/1B, measuring 2 acres 2 guntas and purchase of Survey No.113 under registered Sale Deed in the name of defendant Nos.1 to 3. He contends that defendant Nos.1 to 3 are the absolute owners of the said properties since the said properties were allotted to them by Goudappa, who was the absolute owner of the said properties. 27. In the cross-examination, DW-2 has stated that after allotting the suit properties in favour of defendant Nos.1 to 3, their maternal uncle was cultivating the said lands. Plaintiff No.2 never cultivated the said land. His grandfather Goudappa had no ancestral properties and - 20 - RFA No. 100311/2020 suit properties were acquired by Goudappa from his wife. Therefore, they were the absolute properties of Goudappa and plaintiffs have no right over the same. He has further stated that his elder brother – defendant No.1 and mother – defendant No.4 are residing with plaintiff No.2. Therefore DW was deposing falsely before the Court. He also stated that for maintenance of his parents, they gave 3 acres of land to them out of the suit properties. He has also contended that house property bearing No.GP No.694/1 is the joint family property and it was not the absolute property of defendant No.1. But in his further cross-examination, he has stated regarding sale of the house property bearing GP.No.694/1 in favour of defendant No.1 and execution of the Sale Deed dated 16.05.2013. He identified the said Sale Deed at Ex.D-2. 28. Defendant No.2 produced the original Sale Deed dated 19th March 1981 in respect of Survey No.113 executed in the name of defendant Nos.1 to 3; Ex.D-2 is the Sale Deed executed by defendant Nos.2 and 3 in favour of defendant No.1, dated 16.5.2013. The recital of - 21 - RFA No. 100311/2020 the said Sale Deed shows that they had 2/3rd share in the said house, and they sold their share in favour of defendant No.1 for a sum of Rs.78,000/-; the RTC of Survey No.121/6, measuring 4 acres 24 guntas is produced at Ex.D-3; Exs.D-4 and D-5 are the mutation extracts dated 27.09.1950. After the death of mother of Gangamma, name of her only daughter was mutated in the revenue records as per Ex.D-4. Gangamma gave statement and on that basis, her name was deleted in Ex.D-5 dated 27.09.1950 and name of her husband was entered. Both the mutations were on the same date. Goudappa partitioned the properties in favour of brother of plaintiff No.2 and defendant Nos.1 to 3, accordingly ME.No.6144 was passed, the copy of which is already produced by the plaintiffs; Exs.D-4 and D-5 is the Assessment List of Village Panchayath of House property No.694/1, which is standing in the name of defendant No.1; The RTC of suit properties i.e., Survey No.121/6 and Survey No.113 are produced at Exs.D-8 and D-9, standing in the name of defendant Nos.1 to 3; Ex.D-10 is the Sale - 22 - RFA No. 100311/2020 Deed in respect of Survey No.113 (certified copy). Exs.D-4 and D-5 indicates that mother of Neelawwa was one Gangamma. Said Gangamma died during the year 1950 and after her death, Neelawwa wife of Goudappa, being the only legal heir of Gangamma and hence, her name was entered in the revenue records as legal heir, by the mutation entry No.2353 dated 27.09.1950. Similarly on the very same day, Neelawwa, wife of Goudappa gave a statement before the revenue authority to delete her name from the revenue records and enter the name of her husband Goudappa. Accordingly Mutation No.2354 was ordered; M.E.No.6144 is produced at Ex.D-6; it shows that Goudappa effected partition and allotted some of the properties acquired by him from his wife in favour of his son Basalingappa and similarly two properties were allotted to the share of defendant Nos.1 to 3, who were then minors. 29. These records discussed above shows that mother of Neelawwa was the absolute owner of the properties mentioned in Ex.D-4 and on her death, they - 23 - RFA No. 100311/2020 were mutated in the name of Neelawwa. Neelawwa did not execute any registered document ot transfer right over immovable properties in favour of her husband. On the contrary, on the basis of statement said to be given by her, name of husband of Neelawwa i.e., Goudappa was entered. It is nobody's case that Goudappa had any pre- existing right over the said properties. Admittedly no registered documents were exeuted by Neelawwa in favour of Goudappa, relinquishing her right over the properties. Therefore, right, title and interest over the immovable properties mentioned in Ex.D-4 could not have been transferred by Neelawwa in faovur of Goudappa. Hence, Gowdappa did not become the owner of the said properties. 30. The Goudappa was not the absolute owner of the said properties mentioned in M.E.No.2354 and hence he had no right to transfer the properties between his son Basalingappa and defendant Nos.1 to 3 by giving waradhy. In view of these reasons, M.E.No.6144 does not give any - 24 - RFA No. 100311/2020 right, title and interest in respect of the suit properties in favour of defendants in the present suit. 31. It is settled principle of law that right, title and interest over immovable property cannot be transferred by giving a statement before the revenue officers. Defendant No.2 contended that suit properties were the absolute properties of Goudappa and he had every right to relinquish his right over the said lands or transfer the lands in favour of his son and grandsons. Hence, plaintiff Nos.1 and 2 do not get any right over the said property. Legally the said contention is not tenable. During the trial of the case, it is not remained as dispute that suit properties are Stridhan properties and inherited by Neelawwa from her mother. After the death of Neelawwa, the said properties devolve to her legal heirs in terms of Section 15 of the Hindu Succession Act. 32. Section 15 of Hindu Succession Act reads as under : “15. General rules of succession in the case of female Hindus.— - 25 - RFA No. 100311/2020 (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,— (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub- section (1),— (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre- deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband. - 26 - RFA No. 100311/2020 33. According to Section 15 of Hindu Succession Act, after the death of Neelawwa, her properties delove in favour of her two sons and Goudappa. The said Goudappa divided the properties and appears to be allotted nearly half of his properties in favour of Basalngappa and remaining half in favour of defendant Nos.1 to 3. Prior to filing of the suit said Goudappa was dead. Hence, his right over the properties of his wife divided to his two sons. Accordingly, plaintiff No.2 became absolute owner of the half of the properties held by Gundappa i.e., properties allotted to the share of defendant Nos.1 to 3. 34. Plaintiff No.2 himself is the absolute owner of the properties allotted to the share of defendant Nos.1 to 3. It appears due to misconception of law and ignorance plaintiff No.2 has filed the suit demanding partition in the suit properties. During his life time, the defendant Nos.1 to 3 have no right over the suit properties. Under these circumstances, question of division of the property or allotment of a share in favour of plaintiff No.2 does not arise. The learned trial Judge has not at all considered - 27 - RFA No. 100311/2020 these facts and erroneously appreciated the pleadings and granted a share to the parties to proceedings, excluding defendant No.4. The said finding is erroneous, which calls for interference by this Court. The learned trial Judge did not considered the pleadings of defendants and documents produced by them. Hence, erroneously concluded that suit properties are partionalbe properties. For the above discussion, we answer point Nos.1 and 2 in the negative. 35. POINT No.3: It is the contention of defendant Nos.2 and 3 that house property belonging to defendant No.1, which is also ancestral property is not included in the present suit. Therefore, the suit is bad for not including the said property. Defendant No.1 has contended that he had purchased shares of defendant Nos.2 and 3 in the said house property under registered sale deed. He paid share of plaintiffs and defendant No.4 by way of cash. Moreover, it is not a joint family properties. Hence, prayed to reject the said contention. Except the oral evidence of DW-1, there are no materials to prove that the - 28 - RFA No. 100311/2020 said properties were ancestral properties. In view of the answers given to question Nos.1 and 2, the said contention of defendant Nos.1 and 2 is not tenable and suit is non-inclusion of the joint family properties. 36. Point No.4: Defendant No.3 joined hands with defendant No.2 and filed this appeal. He has filed IA.No.2/2021 under Order LXI Rule 27 of CPC, seeking permission to lead additional evidence, which is supported by an affidavit of appellant No.2 (defendant No.3), wherein he contends that suit summons were served on his behalf to defendant No.4. She did not inform the same to him to appear and prosecute the matter. Defendant No.2 had no knowledge about pendency of the suit. To show that notice was served on his mother has produced the true copy of the summons issued to defendant No.3 and endorsement that it was served on his mother. 37. It is pertinent to note that defendant No.3 opted to file an appeal under Order LXI Rule 27 of CPC. If he intends to set aside the decree only on the - 29 - RFA No. 100311/2020 ground of non-servicing of suit summons to him, he should have filed an application under Order IX Rule 13 of CPC, he did not opt for the same. When he challenges the judgment and decree passed by the trial Court under Order LXI Rule 1 of CPC, the Appellate Court has to consider the contentions of the parties on merirts including service process. In this case, as discussed above, the suit for partition is not maintainable, therefore there is no need to decide in the question of proper and valid service of summons on defendant No.3. In the appeal memo, he has not taken any other contentions, except that suit properties are Stridhan properties of his grandmother, therefore plaintiffs and defendant No.4 had no right over the said properties. The said document which is proposed to be produced before this Court is not at all relevant to decide the real dispute between the parties. Therefore, suit needs to be rejected. Accordingly, point No.4 is answered in the Negative. 38. For the aforesaid discussion, we proceed to pass the following : - 30 - RFA No. 100311/2020 ORDER The Regular First Appeal is allowed. The judgment and decree dated 4th March 2020, passed by the learned Senior Civil Judge, Bailhongal, in O.S.No.80/2017, is set aside. The suit in O.S.No.80/2017 is dismissed, as not maintainable. Application-IA.No.2/2021 filed by the appellants under Order LXI Rule 27(b) read with Section 151 of CPC, is rejected. Registry is directed to send a copy of this judgment along with trial Court records to the concerned trial Court. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE bk/-