- 1 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH 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. 100015 OF 2019 (PAR/POS) BETWEEN: SHIVAYYA S/O. LATE KUMARA SWAMY AGED 64 YEARS, OCC: RETIRED SENIOR SUPERVISOR, BEML, K.G.F.-563115, R/O: A296, BEML NAGAR, KGF-563115, DIST:KOLAR. …APPELLANT (BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE) AND: 1 . SMT. PUSHPAVATHI W/O. SHADAKSHARI SWAMY AGED 61 YEARS, OCC: HOUSEWIFE, R/O: NO.181, NAVALI VILLAGE, TQ: GANGAVATHI, DIST: KOPPAL. 2 . BASAVARAJ S/O. SHADAKSHARI SWAMY AGED 41 YEARS, OCC: KIRANA MERCHANT, R/O: NO.55, NAVALI VILLAGE, TQ: GANGAVATHI, DIST: KOPPAL. Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA Date: 2025.03.01 12:08:40 +0530 - 2 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 3 . KUMARASWAMY S/O. SHADAKSHARI SWAMY AGED 38 YEARS, OCC: TAXI OWNER, R/O: NO.181, NAVALI VILLAGE, TQ: GANGAVATHI, DIST: KOPPAL. 4 . SMT. BHARATHI W/O. SHANTHAVEERAIAH HIREMATH AGED 44 YEARS, OCC: HOUSEWIFE, R/O: NEAR ARD, DASANAHALLI (POST), TQ: GANGAVATHI, DIST: KOPPAL. 5 . SMT. SUREKHA HIREMATH W/O. CHANNAIAH SWAMY, AGE:NOT KNOWN, OCC:TEACHER GOVERNMENT MODEL HIGHER PRIMARY SCHOOL, SRISHAILA NAGAR, KOPPAL POST, DIST:KOPPAL. …RESPONDENTS (BY SRI. B.C. JNANAYYASWAMI ADVOCATE FOR R1 TO R3; NOTICE TO R4 AND R5 SERVED) THIS RFA IS FILED UNDER SECTION 96 OF THE CPC., PRAYING TO MODIFY THE JUDGMENT AND DECREE DATED 28.08.2018 PASSED BY I ADDITIONAL SENIOR CIVIL JUDGE, BALLARI IN O.S.NO.263/2013 AND CONSEQUENTLY DECREE THE SUIT. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 04.02.2025, THIS DAY, UMESH M ADIGA, J., PRONOUNCED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 3 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) This is plaintiff’s appeal against the judgment and decree dated 28.08.2018, passed in O.S.No.263/2013 by the I Additional Senior Civil Judge, Ballari. The plaintiff has filed a suit for partition and separate possession and by the impugned judgment the trial court has partly decreed the suit. Being aggrieved by the same, the plaintiff has filed this appeal. 2. We refer to the parties as per their rankings before the trial Court. 3. The appellant is plaintiff and respondent Nos-1 to 4 are defendant Nos.2 to 6 before the trial court. 4. Brief facts of case of both the parties before the trial court were as under: 5. It is the case of plaintiff that the original propositus was one Shadakshariah and his wife was Smt. Gundamma. Shadakshariah had two sons by name - 4 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 Kumaraswamy (father of plaintiff and defendant No.1) and another son is by name Kashinathaswamy(the genealogy of family Kashinathaswamy is not relevant in the present suit). The said Kumaraswamy had two sons i.e. Shivayya (plaintiff) and Shadakshari (defendant No.1) and a daughter by name Hampamma. Second son of Kumaraswamy i.e. Shadakshari married to Smt. Pushpavathi (defendant No.2) and from the said wedlock, they had two children i.e. Basavaraj (defendant No.3) and Kumaraswamy (defendant No.4). Daughter of Kumaraswamy i.e. Smt. Hampamma died leaving behind her two daughters by name Bharathi (defendant No.5) and Surekha (defendant No.6). 6. It is the contention of the plaintiff that suit ‘A’ schedule properties are ancestral and joint family properties of plaintiff and defendants. They have inherited the said properties from their father Kumaraswamy. It is further case of the plaintiff that suit ‘B’ schedule properties and other properties situated at Muddatanur - 5 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 Village in Ballari Taluk were earlier belonging to Smt. Gundamma (paternal grand mother of plaintiff and daughter No.1). The said properties were purchased by Gundamma. After the death of Gundamma, the ‘B’ schedule properties were divided between Kashinathaswamy and defendant No.1 (as a representative of the family of Kumaraswamy) under the registered partition deed dated 19.04.1979. Therefore they are also joint family properties belonging to plaintiff and defendant No.1. 7. The plaintiff has further contended that suit ‘C’ schedule properties were acquired from joint family nucleus in the names of defendant Nos.2 to 4 by defendant No.1. Therefore, the said properties are also joint family properties liable for partition. The plaintiff is entitled for 1/3rd share in the said properties. It is further contended that defendant Nos.1 and 3 to 6 were showing hostile attitude regarding the income of the suit properties. The defendants colluded with each other and - 6 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 tried to alienate the properties to defeat the rights of the plaintiff. With these reasons, the plaintiff prayed to decree the suit for partition and separate possession of his 1/3rd share in the suit schedule properties. 8. The defendant No.1 filed written statement and it was adopted by defendant Nos.2 to 4. Defendant Nos.1 to 4 have denied the contention of the plaintiff. According to his contention, plaint ‘A’ schedule properties was the only ancestral properties inherited by plaintiff and defendant No.1. The father of the plaintiff and defendant No.1 by name Kumaraswamy died during the year 1956 and his wife died during the year 1952. When plaintiff and defendant No.1 were minors, the maternal grand mother of plaintiff and defendant No.1 by name Parvathamma wife of Shivayya has taken care of plaintiff and she brought up plaintiff in her house. Similarly, paternal grandmother of plaintiff and defendant No.1 by name Gundamma W/o Shadakshariah, brought up defendant No.1 in her house at Mincheri Village in Ballari taluk. The suit ‘A‘ schedule - 7 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 properties was under the possession and enjoyment of Smt.Parvathamma and the plaintiff till he joined service. All the income derived from the said properties were spent for the education of plaintiff and his other requirements. Even after plaintiff joined the service, the said Smt. Parvathamma and the plaintiff had been in possession and enjoyment of suit ‘A’ schedule properties, till the year 1995. It is further stated that Parvathamma died during the year 1995. Thereafter plaintiff and defendant No.1 partitioned plaint ‘A’ schedule properties amicably as per the desire of the plaintiff, in the presence of elders, under the family arrangements dated 06.05.1996. As per the said partition, the plaintiff got 30 acres and 32 cents of the land, whereas defendant No.1 has got to an extent of 30 acres 62 guntas. From that date onwards, the plaintiff has been enjoying the properties allotted to his share and similarly properties allotted to the share of defendant No.1 have been enjoyed by defendant Nos.1 to 4. The said family arrangement is valid and binding on both plaintiff and defendant No.1. The said family arrangement is acted - 8 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 upon and plaintiff had obtained a loan by mortgaging Sy.No.381/A measuring 12 acres 2 guntas and hence question of dividing plaint ‘A’ schedule properties do not arise. 9. Defendant No.1 has further contended that suit ‘B’ schedule properties is belonging to Smt. Gundamma, till her death; Defendant No.1 looked after her and taken care of her and after her death as per her wish and desire suit ‘B’ schedule properties has been transferred to the name of defendant No.1 in the year 1991. Since defendant No.1 has been in possession and enjoyment of suit ‘B’ schedule properties. They are not joint family properties; plaintiff has no right to claim partition in the said properties. 10. Defendant No.1 has further contended that plaint ‘C’ schedule properties are self acquired properties of defendant Nos.2 to 4 over which plaintiff has no right. They were purchased out of the earning of defendant Nos.2 to 4. Defendant No.2 had purchased items No.1 to - 9 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 4 of ‘C’ schedule properties out of the financial assistance given by her parents and her savings as well as earnings from business on various dates. From the year 1981, defendant No.1 and members of his family shifted to Navali Village, Gangavathi Taluk, Koppal District and they started kirana business. From the income derived from the said business, suit ‘C’ schedule properties were purchased and the said properties were not acquired out of the joint family nucleus. The said contention is incorrect. The plaintiff is not entitled for relief of partition as prayed in the suit. Therefore, prayed to dismiss the suit. 11. Defendant Nos.5 and 6 together filed a separate written statement and they have more or less supported the case of the plaintiff and prayed to award 1/3rd share in the suit properties in their favour and decree their claim. 12. From the rival contentions of the parties, the trial court framed the following issues: - 10 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 1) Whether the plaintiff proves that plaint 'A' schedule properties are the ancestral properties of defendant No.1, 3 to 6 and himself? 2) Whether the plaintiff proves that plaint 'B' schedule properties were belonging to their paternal grandmother? 3) Whether the defendant No.1 proves that on 6.5.1996 the plaint 'A' schedule properties are partitioned among plaintiff and himself? 4) Whether defendant No.1 proves that item No.2 of plaint 'B' schedule properties was purchased by him under the registered sale deed dated 13.7.1964 and it is his self acquired properties? 5) Whether the defendant No.1 proves that plaint 'C' schedule properties are self acquired properties of defendant No.2 to 4? 6) Whether plaintiff is entitled to any share in the suit schedule properties if so at what quantum? 7) What Order or Decree? 13. The plaintiff to prove his case examined himself as PW-1 and got marked documents at Exs.P1 to P96. During the pendency of the suit, defendant No.1 was dead and defendant Nos.2 to 4, who are his legal heirs, were already on record. On behalf of defendant Nos.2 to 4, - 11 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 defendant No.3 was examined as DW1 and defendants got marked documents at Exs.D1 to D9. 14. The trial Court after hearing arguments of both the parties and appreciating the pleadings and evidence available on record, answered issue Nos.1 and 6 partly in the affirmative, issue Nos.2, 4 and 5 in the affirmative, Issue No.3 in the Negative and suit was decreed in part holding that plaintiff is entitled for 4/9th share in item Nos.1, 2, 4 to 8 of ‘A’ schedule properties. The plaintiff is not entitled for share in item No.3 of ‘A’ schedule as well as ‘B’ and ‘C’ schedule properties, by impugned judgment and the same is challenged in the present appeal on the grounds mentioned in the appeal memo. 15. We have heard the arguments of learned counsel appearing for both sides. 16. Learned counsel for the appellant contends that according to defendants Nos.1 to 4, suit ‘A’ schedule properties was ancestral properties. But set up earlier partition of the year 1996; The defendants failed to prove - 12 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 the same. Therefore all the suit ‘A’ schedule properties are joint family properties. The learned trial Judge excluded item No.3 of suit ‘A’ schedule properties and granted relief in favour of the plaintiff. The reasons assigned for rejecting the case of the appellant in respect of item No.3 in ‘A’ schedule properties is not proper. He further submits that suit ‘B’ schedule properties were belonging to the Gundamma, paternal grandmother of defendant No.1. After the death of Gundamma, partition deed was executed in between uncle of plaintiff and defendant No.1. Defendant No.1 was allotted the share for and on behalf of the branch of Kumaraswamy. By virtue of the said partition deed of the year 09.4.1979, defendant No.1 cannot declare himself as absolute owner of suit ‘B’ schedule properties. Learned trial Judge has not considered the said facts and erroneously rejected the claim of the plaintiff in the partition of the said properties. Learned counsel for the appellant has further submitted that the plaint ‘C’ schedule properties were - 13 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 purchased out of joint family nucleus, in the name of defendant Nos.2 to 4. In the written statement, defendant Nos.2 to 4 have contended that defendant No.2 purchased two items of suit schedule properties by the financial assistance given by her parents. Defendant No.2 did not enter the witness box to prove the said contention and she has not placed any records in this regard. Similarly defendant Nos.3 and 4 have contended that out of self earnings, the said properties were purchased but no materials were placed on record to prove the same. Heavy burden lies on the defendant to prove that they have independent source of income to purchase items of suit ‘C’ schedule properties, since no reliable evidences were produced by the defendant Nos.2 to 4 to prove the same. In spite of that, the learned trial Judge erroneously rejected the claim of the plaintiff in respect of suit ‘C’ schedule properties. In view of these reasons, prayed to set aside the said findings and grant relief of partition in respect of all the properties mentioned in the plaint ‘A to C’ schedule properties. - 14 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 17. Learned counsel for respondent Nos.1 to 3 would submit that the trial court has meticulously appreciated the pleadings and evidence lead by both the parties and came to a right conclusion. The appellant has not produced any documents to show that item No.2 of suit ‘A’ schedule properties is belonging to family of plaintiff and defendant No.1. Unless prima facie it is proved that the said properties is also part of the joint family properties, the Court cannot grant the relief. He further submits that ‘B’ schedule properties are admittedly belonging to Smt. Gundamma and they were her self acquired properties. Defendant No.1 looked after her during her old days. Gundamma had brought up defendant No.1 when he was minor. Therefore, after her death, as per the desire of Gundamma, ‘B’ schedule properties were divided between son of Gundamma by name Kashinathaswamy and defendant No.1. Therefore plaintiff and other defendants have no right over the said properties. It is the contention of defendant Nos.2 to 4 that suit ‘C’ schedule properties were purchased from the - 15 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 earnings of defendant Nos.2 to 4. They have produced registered sale deeds for having purchased the said properties. Therefore they are their absolute properties and plaintiff and other defendants have no right over the said properties. Considering these facts, the learned trial Judge rightly rejected the claim of plaintiff in respect of suit ‘B and C’ schedule properties. The said findings are not erroneous. With these reasons, prays to dismiss the appeal with cost. 18. Following points arises for our determination : (i) Whether learned trial Judge erred in not holding that item No.3 of plaint `A’ schedule and `B’ and `C’ schedule properties are not joint family properties? (ii) Whether learned trial Judge erred in calculating share of parties to the suit? (iii) Whether interference in the findings of trial Court is required? (iv) What order or decree? - 16 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 Our findings on above point Nos.1 to 3 are in the affirmative for the following reasons : 19. The genealogy and relationship between the parties are not in dispute. It is also not in dispute that Gundamma was paternal grand mother of plaintiff and defendant No.1 i.e. mother of father of plaintiff and defendant No.1. In the written statement, defendant No.1 admitted that plaint ‘A’ schedule properties were joint family properties of plaintiff and defendant No.1. But he has contended that there was a family settlement in the presence of plaintiff, defendant No.1 and elders of the family. Accordingly, family arrangement was executed on 06.05.1996, which is described as Paalu Vibhaga Dastagiri. In the said settlement deed, plaintiff got 30 acres 32 cents of land and defendant No.1 has got same extent of his land to his share. From 06.05.1996, both of them were separately cultivating and enjoying the said properties allotted to the share of respective parties. Hence, ‘A’ - 17 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 schedule properties were not at all the joint family properties as on the date of the suit. 20. DW-1 in his evidence has stated the very same facts as mentioned in the written statement of defendant No.1. He has not produced the copy of the said Palu Vibhaga Dastagiri. He has not explained reasons for non- production of the said partition deed. In his cross- examination, DW-1 has stated that “they are in possession of partition deed dated 06.05.1996. It was an unregistered document and he has photo copy of the said partition deed. He would search for the original partition deed and if he finds it, he would produce the same before the Court.” He has also stated that as per the said partition deed boundaries were not fixed and revenue records were not mutated. The suit `A’ schedule properties are standing in the name of plaintiff. Both the plaintiff as well as defendant No.1 did not file any application for mutating their respective names in the revenue records pertaining to suit ‘A’ schedule properties as per partition deed. DW-1 - 18 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 denied the suggestion of plaintiff that there was no such partition deed and plaintiff never entered into a partition deed with defendant No.1. The suit was pending before the trial court nearly for a period of around 4 years 9 months. Till disposal of the said suit, defendant Nos.1 to 4 did not produce any copy of the said family settlement deed/partition deed dated 06.05.1996. Therefore they were unable to prove the said partition or family settlement dated 06.05.1996. In the absence of the same, they utterly failed to prove the same. Therefore as on the date of suit, plaint ‘A’ schedule properties are joint family properties. 21. The learned trial Judge in the impugned judgment has rightly noted that plaintiff has not produced revenue records pertaining to item No.3 i.e. Sy. No.269/3 to prove that it is joint family property. It is said to be standing in the name of one Nabisab and defendant No.1. Defendant No.1 is said to have purchased 3 acres of land in sy.No.269/3. From the said finding of the trial Court, it - 19 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 is clear that sy.no.269/3 measuring 3 acre is standing in the name of defendant No.1. Defendant No.1 in the written statement has admitted that all the plaint ‘A’ schedule properties were joint family properties and they were divided. Total extent of said land is said to be 6.27 acres, but their family had right only to an extent of 3 acres. Therefore out of the said extent of the land, plaintiff and defendants are entitled for share. Therefore the findings of the learned trial Judge that suit item No.3, of plaint ‘A’ schedule properties are not joint family properties is erroneous. 22. Plaintiff No.1 has produced written statement filed by defendant No.1 herein in O.S.No.124/2008 as Ex.P71 and the evidence of DW1 of the said suit Ex.P72. The certified copy of judgment and decree in O.S.No.124/2008 is produced at Exs.P73 and P74. The copy of judgment and decree passed in R.A.No.38/2013 as Ex.P83 and 84; Appeal memo of R.A.No.38/2013 is at Ex.P85. The written argument filed by the defendant - 20 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 Nos.2 to 4 in the present suit is at Ex.P87. As per Ex.72, defendant No.1 in his cross-examination recorded on 03.08.2011 admitted that there were no partition between himself with his younger brother Shivayya (plaintiff herein) and still they are living in joint family. If there was a partition as contended by defendant No.1 in the present suit dated 06.04.1996, then definitely defendant No.1 could have stated the said fact in his cross-examination. It also supports the contention of the plaintiff that there was no partition in the ‘A’ schedule properties. 23. All the revenue records pertaining to ‘A’ schedule properties produced at Exs.P1 to P65 are standing in the name of plaintiff. Defendants tried to contend that since there was a partition in the family of plaintiff and defendant No.1, therefore, the properties allotted to share of plaintiff was mutated in his name and accordingly his name has been entered in the revenue records. The said contention is not accepted. Ex.P75 is mutation extract produced by the plaintiff. It shows that - 21 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 on the application of plaintiff, after death of his father Kumaraswamy, his name was mutated in the revenue records in respect of properties bearing Sy.Nos.89/A, 157/8, 170/B, 213/K and 381/A by virtue of the mutation entry No.50 dated 20.02.1976. Revenue records were not mutated on the basis of alleged partition of the year 06.04.1996, as stated by defendant Nos.1 to 4. 24. It is not in dispute that ‘B’ schedule properties were belonging to Smt. Gundamma. Both plaintiff and defendant No.1 contends that after the death of Gundamma her son Kashinathaiah and defendant No.1 partitioned the said properties belonging to Smt. Gundamma. In the said partition, half share was given to Kashinathaiah, uncle of plaintiff and defendant No.1 and remaining half share was allotted to defendant No.1. Accordingly registered partition deed was executed. The certified copy of the said partition is produced at Ex.P69. It is further stated by defendant No.1 that parents of plaintiff and defendant No.1 died when they - 22 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 were minors aged about 4 to 6 years. Plaintiff was brought up by his maternal grandmother of plaintiff and defendant No.1 was brought up by his paternal grandmother of defendant No.1. Defendant No.1 had love and affection towards said Gundamma (paternal grandmother) and vice versa. Therefore, out of said love and affection, she desired that her properties should go to defendant No.1. Accordingly after her death, properties were partitioned between Kashinathswamy and defendant No.1. 25. The said contention of defendant Nos.1 to 4 is not believable. As stated above, Smt. Gundamma was the paternal grandmother of both plaintiff and defendant no.1. She had two sons i.e. father of plaintiff and defendant No.1 by name Kumaraswamy and another was Kashinathswamy. Gundamma died intestate leaving behind her properties stated in `B’ schedule. Her son Kumarswamy predeceased her. Hence she left behind her son Kashinathswamy and plaintiff and defendant No.1, - 23 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 who are sons of her predeceased son. After her death, properties of Gundamma devolves to them as per Section 15 and Section 16 of Hindu Succession Act. 26. Section 15 of Hindu Succession Act reads as below : “15. General rules of succession in the case of female Hindus.— (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 - 24 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 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.” According to the said Sections, sons and daughters of Gundamma would succeed to the properties held by her at the time of her death. Admittedly her son Kumaraswamy predeceased her, leaving behind his sons and daughter. Hence children of Kumaraswamy together entitled for ½ share in the properties held by Gundamma. Her another son is Kashinathswamy and remaining ½ share would go to him. 27. It appears as on the date of said partition deed plaintiff was in service at KGF and hence defendant No.1 - 25 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 alone might have represented the branch of Kumaraswamy and participated while executing partition deed dated 19.05.1979. Hence, properties given to the share of defendant No.1 in the said partition deed were for and on behalf of all the members of the branch of Kumaraswamy. Defendant No.1 alone cannot claim right over the said properties. The said contention of defendant Nos.1 to 4 is not tenable. 28. Contentions of defendant Nos.1 to 4 are that Gundamma intended to give entire her properties to defendant No.1. If that was true, then she would have executed Will in his favour and bequeathed the said properties to him. Otherwise as per Section 15 of Hindu Succession Act, plaintiff was also entitled for a share in the properties of Gundamma. Execution of Partition Deed in the absence of plaintiff does not bind his share in the said properties. Therefore execution of Partition Deed dated 19.05.1979 between Kashinathswamy and defendant No.1 - 26 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 will not affect his right to claim share in the `B’ schedule properties. 29. Plaintiff contends that plaint ‘C’ schedule properties are joint family properties purchased in the name of defendant Nos.2 to 4 out of joint family nucleus. It is the contention of plaintiff that joint family has income earning properties i.e. suit ‘A’ and ‘B’ schedule properties. Defendant No.1 out of the income earned from the said properties, purchased lands/house properties in the name of defendant Nos.2 to 4. Defendant No.1 was residing in the very same village. Plaintiff was residing at KGF and he had trust in defendant No.1. Taking advantage of the absence of plaintiff from the village, got executed registered sale deeds in the names of defendants No.2 to 4. 30. In the written statement, defendant No.1 contended that he was running provision shop along with defendant No.2 and out of the income earned from the said business, he purchased plaint ‘C’ schedule properties. - 27 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 Defendant No.2 did not enter the witness box to prove her income from the business. DW-1, is defendant No.3 and he was examined on behalf of defendant Nos.1 to 4. In his evidence, he did not state about the earnings from the provision store or any other independent income of defendant Nos.1 to 4 and not given accounts of the earnings to purchase suit schedule `C’ properties. Even he has not produced any reliable evidence to prove that said properties were purchased in the name of the defendant Nos.2 to 4 from their self earnings. Merely, contending in the written statement is not sufficient and it shall be proved. DW-1 has not stated regarding provision store business said to be run by defendant Nos.1 and 2. In the absence of the same, it is difficult to believe that suit ‘C’ schedule properties were purchased in the name of defendant Nos.2 to 4 from their self earnings. The contentions of plaintiff that plaint `C’ schedule properties were acquired in the name of defendant Nos.2 to 4 out of joint family nucleus is believable/probable. - 28 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 31. It is the contented in the written statement that suit item Nos.1 and 2 of ‘C’ schedule properties was acquired by defendant No.2 from the funds given by her parents. Defendant No.2 did not enter the witness box; She has not examined any of member of her parent’s family to prove the said contention. DW-1 in his evidence has not at all stated about the financial assistance given to defendant No.2 by her parents family to purchase the properties standing in her name. Therefore the said contention is also not proved. Hence, it is to be held that even ‘C’ schedule properties are joint family properties purchased from joint family nucleus in the name of defendant Nos.2, 3 and 4. 32. It is contended by defendants that after partition in the year 1996, plaintiff has mortgaged one of the properties allotted to his share to the Bank and has obtained loan. In the cross-examination of DW-1, it was suggested by plaintiff that loan was obtained jointly by plaintiff and defendant No.1. Both the parties have not - 29 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 produced the relevant materials to corroborate their contention. More over, there is no presumption that merely a member of a family/co-parceners, mortgaging a family properties and obtaining loan does not mean that there was a partition in their family. Therefore, on the basis of the loan obtained by the plaintiff on any one of the joint family properties cannot be a reason to believe that there was a partition. No such inference can be drawn. 33. The learned trial Judge did not investigate in detail in respect of ‘B’ and ‘C’ schedule properties. The learned trial Judge did not consider the provisions of Sections 15 and 16 of Hindu Succession Act and right of the persons to inherit the properties by virtue of said provision of law after death of a female heir. If Gundamma had executed a Will, bequeathing the properties in favour of defendant No.1 then the case would be different. But after her death, partition had taken place between Kashinathaiah and defendant No.1. Plaintiff and - 30 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 defendant Nos.5 and 6 were also successor to the properties held by her after death of Gundamma. Merely, they were absent at the time of execution of the partition deed between Kashinathaiah and defendant No.1, does not mean that they have lost their right. On the contrary, partition deed may not bind their rights. The trial Court erroneously has not considered the said facts. 34. The plaintiff has contended that out of the income derived from plaint ‘A’ and ‘B’ schedule properties, ‘C’ schedule properties were purchased. Admittedly, defendant Nos.1 to 4 had no other source of income except agricultural lands. The contention taken by defendant No.1 in the written statement that he was running a provision store is not proved. Even the contention of defendant No.2 that from the financial assistance given by her parents, she purchased some of the ‘C’ schedule properties, is also not proved by cogent evidence. In view of the same, it has to be accepted that the said properties were purchased out of income earned - 31 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 from ‘A’ and ‘B’ schedule properties. Therefore, finding of the learned trial Judge in this regard is erroneous and interference by this court is required. 35. The trial court granted 4/9th share in favour of plaintiff and defendant No.1 and 1/9th share to defendant Nos.5 and 6 in respect of item.Nos.1, 2, 4 to 8 of ‘A’ schedule properties. Prior to passing of impugned judgment, Section 6 of the Hindu Succession (Amendment) Act was came into force. According to the said amendment, daughter is considered as co-parcener and she is entitled for a share equivalent to share of a son. The trial court has not given reasons as to why it did not treat defendant No.5 and 6 as co-parceners and not awarded equal share to them on par with plaintiff and defendant No.1. Admittedly they are granddaughters of Kumaraswamy. Therefore share allotted by the trial court to plaintiff, defendant No.1, 5 and 6 are incorrect. 36. Our view is supported by the judgment of Hon’ble Apex Court in the case of Vineetha Sharma vs - 32 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 Rakesh Sharma and Others1. Plaintiff and defendant No.1 each takes 1/3rd share and defendant Nos.5 and 6 together entitled for 1/3rd share in the suit schedule property. During pendency of appeal, defendant No.1 was died and defendant Nos.2 to 4 are his legal heirs. Hence, defendant Nos.2 to 4 together are entitled for 1/3rd share in suit `A’, `B’ and `C’ schedule properties. Accordingly, share has to be re-apportioned. 37. For the aforesaid reasons, we answer point Nos.1 to 3 in the affirmative and pass the following: ORDER The Appeal is allowed. The Judgment and decree passed by learned I Additional Senior Civil Judge, Ballari, dated 28.08.2018 in O.S.No.263/2013, is modified. The suit of the plaintiff is decreed and plaintiff is entitled for 1/3rd share in plaint ‘A’ 1 ILR 2020 KAR 4370 - 33 - NC: 2025:KHC-D:3957-DB RFA No. 100015 of 2019 to `C’ schedule properties and in the plaint ‘A’ schedule properties, he is entitled for share to an extent of 3 acres in Sy.No.269/3 out of 6 acres 27 guntas. Plaintiff is entitled for partition and separate possession of his share by metes and bounds. Similarly, defendant No.2 to 4 together entitled for 1/3rd share and defendant Nos.5 and 6 together entitled for 1/3rd share in the suit properties by metes and bounds. Draw decree accordingly. In view of the disposal of the appeal, I.A.No.1/2019 does not survive for consideration and accordingly stands dismissed. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE AG/List No.: 1 Sl No.: 1