- 1 - NC: 2025:KHC-D:4992 RSA No. 100482 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100482 OF 2022 (PAR/POS-) BETWEEN: KALLAPPA SHIVAPPA AINAPUR, AGE: 64 YEARS, OCC: AGRICULTURE, R/O. BAIRANAHATTI VILLAGE, TALUK: NARAGUND, DISTRICT: GADAG-582207. …APPELLANT (BY SRI. J.S. SHETTY ASSOCIATES, ADVOCATE) AND: 1. HANAMAPPA SHIVAPPA AINAPUR, AGE: 60 YEARS, OCC: AGRICULTURE, R/O. BAIRANAHATTI VILLAGE, TALUK: NARAGUND, DISTRICT: GADAG-582207. 2. KARABASAPPA SHIVAPPA AINAPUR, AGE: 60 YEARS, OCC: AGRICULTURE, R/O. BAIRANAHATTI VILLAGE, TALUK: NARAGUND, DISTRICT: GADAG-582207. 3. DHARMARAJ SHIVAPPA AINAPUR, AGE: 58 YEARS, OCC: AGRICULTURE, R/O. BAIRANAHATTI VILLAGE, TALUK: NARAGUND, DISTRICT: GADAG 582207. 4. MALLAPPA SHIVAPPA AINAPUR, AGE: 54 YEARS, OCC: AGRICULTURE, MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:4992 RSA No. 100482 of 2022 R/O. BAIRANAHATTI VILLAGE, TALUK: NARAGUND, DISTRICT: GADAG 582207. 5. ANASUYA W/O. VITHAL GANIGER, AGE: 66 YEARS, OCC: HOUSEHOLD WORK, R/O. KATAGERI VILLAGE, TALUK: BADAMI, DIST: BAGALKOT-582207. 6. YAMANAPPA SHIVAPPA AINAPUR, AGE: 66 YEARS, OCC: AGRICULTURE, R/O. BAIRANAHATTI VILLAGE, TALUK: NARAGUND, DIST. GADAG-582207. …RESPONDENTS (BY SRI. AHAMED ALI RAHIMAN SHAH, ADVOCATE FOR R1-R5; SRI. S.S. BETURMATH, ADVOCATE FOR R6) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 PRAYING TO THAT THE JUDGMENT AND DECREE DATED 01.04.2021 PASSED BY THE PRINCIPAL JUDGE, FAMILY COURT, GADAG, IN R.A.NO.45/2017 AND ALSO THE JUDGMENT AND DECREE DATED 06.10.2017 IN O.S. NO.162/2015, PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE, GADAG IN SO FAR AS IT RELATES TO DISMISSAL OF THE SUIT IN RESPECT OF THE SUIT SCHEDULE PROPERTIES MENTIONED AT SL.NO.2(A) TO 2(D) AND 2(F) ARE CONCERNED, MAY KINDLY BE SET ASIDE BY ALLOWING THIS APPEAL AND DECREEING THE SUIT IN ITS ENTIRETY, WITH COST THROUGHOUT, IN THE ENDS OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC-D:4992 RSA No. 100482 of 2022 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This Regular Second Appeal is filed by the plaintiff No.1, challenging the judgment and decree dated 01.04.2021 passed in RA No.45/2017 on the file of the Principal Judge, Family Court, Gadag (for short, hereinafter referred to as ‘First Appellate Court’), dismissing the appeal and confirming the judgment and decree dated 06.10.2017 passed in OS No.162/2015 on the file of Additional Senior Civil Judge, Gadag (for short, hereinafter referred to as ‘Trial Court’), decreeing the suit of the plaintiffs 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 plaintiffs that, the original propositus - Shivappa Ainapur and Smt. Basawwa are the parents of plaintiffs and defendants. Mother of the plaintiffs – Basawwa died on 22.06.1996 and father of the plaintiffs – Shivappa Ainapur died on 09.05.2015. It is the - 4 - NC: 2025:KHC-D:4992 RSA No. 100482 of 2022 case of the plaintiffs that, suit schedule properties are the ancestral properties of the plaintiffs and defendants and some of the properties are granted by Land Tribunal to the father of the plaintiffs and therefore, the plaintiffs are entitled for share in the suit schedule properties. It is also stated that, the defendant Nos.1 to 4 illegally entered their names in the mutation register without consent of the plaintiffs and accordingly, the plaintiffs have preferred OS No.162/2015, 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 denying the averments made in the plaint. It is the case of the defendant No.4 that, the suit properties at Sl.No.2A and 2C, 2E and 2F are the self acquired properties of Shivappa Ainapur. Schedule properties at Sl.No.2B and 2D are the self acquired properties of defendant Nos.3 and 4 and accordingly, sought for dismissal of the suit. It is also stated that, the father of the plaintiffs, has made family arrangement in respect of his self acquired - 5 - NC: 2025:KHC-D:4992 RSA No. 100482 of 2022 properties and Vardi was given to the Revenue Authorities to change the entries 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, plaintiffs have examined three witnesses as PW1 to PW3 and got marked 22 document as Exs.P1 to P22. On the other hand, defendants have examined four witnesses DW1 to DW4 and produced 13 documents as Exs.D1 to D13. 7. The Trial Court, after considering the material on record, by its judgment and decree dated 06.10.2017 decreeing the suit of the plaintiffs in part, holding that, the plaintiffs are entitled for 1/7th share each in suit schedule 2E, 2G and 2H properties and dismissed the suit in respect of 2A to 2D and 2F. Being aggrieved by the same, the plaintiff No.1 has preferred Regular Appeal in RA No.45/2017 on the file of First Appellate Court and the said appeal was resisted by the defendants. The First Appellate Court after re-appreciating the facts on record, - 6 - NC: 2025:KHC-D:4992 RSA No. 100482 of 2022 by its judgment and decree dated 01.04.2021 dismissed the appeal and confirmed the judgment and decree passed by the Trial Court in OS No.162/2015. Being aggrieved by the same, the appellant/plaintiff No.1 has preferred this Regular Second Appeal. 8. This Court vide order dated 10.06.2022 formulated the following substantial question of law. “i) Whether both the Courts below were justified in ignoring the rules of succession provided under Sections 8 and 9 of the Hindu Succession Act, 1956?” 9. I have heard Sri. J. S. Shetty, learned counsel appearing for the appellant, Sri. Ahamed Ali Rahimanshah, learned counsel appearing for the respondent Nos.1 to 5 and Sri. S. S. Beturmath, learned counsel appearing for respondent No.6. 10. The learned counsel appearing for the appellant contended that, all the suit schedule properties belong to the father of the plaintiffs and defendants and after the death of their father, all the children are entitled - 7 - NC: 2025:KHC-D:4992 RSA No. 100482 of 2022 for equal share in the suit schedule properties and accordingly, sought for interference of this Court. 11. It is also argued by the leaned counsel appearing for the appellant that, though the defendants have raised plea of family arrangement in the joint family of Shivappa Ainapur, however, the defendants have not proved the same with cogent evidence nor produced any documents to prove the same, except the revenue documents and therefore, sought for interference of this Court. 12. Per Contra, learned counsel appearing for the respondents submits that, both the Courts below rightly dismissed the suit in respect of suit 2A to 2D and 2F as those properties are acquired by the father of the plaintiffs and there was a family arrangement during the lifetime of the father of the plaintiffs and accordingly, sought for dismissal of the appeal. 13. 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 - 8 - NC: 2025:KHC-D:4992 RSA No. 100482 of 2022 and perused the record. In order to ascertain the relationship between the parties as averred in the plaint, the genealogy reads as under: Shivappa (died on 09.05.2015) Basawwa (wife) (died on 22.06.1996) Anasuya Yamanappa Kallappa Hanamappa Karabasappa Dharmaraj Mallappa def.5 plntf.2 plntf.1 def.1 def.2 def.3 def.4 14. On careful perusal of the genealogy would indicate that, the plaintiffs and the defendants are the children of Shivappa Ainapur and Basawwa. Parents of the parties died leaving behind the plaintiffs and defendants to succeed to the estate of late Shivappa Ainapur. It is the case of the plaintiffs that, the plaintiffs are entitled for equal share in all the suit schedule properties and on the other hand, the case of the defendants that there was family arrangement during the lifetime of Shivappa Ainapur and in this regard, mutation has been changed by the Revenue Authorities. In the back drop of these aspect, on careful examination of the - 9 - NC: 2025:KHC-D:4992 RSA No. 100482 of 2022 finding recorded by both the Courts below would indicate that, no document has been produced to establish family arrangement in the joint family of Shivappa Ainapur. Vardi has been given to the Revenue Authorities for change of mutation in favour of the sons of Shivappa Ainapur. The said document cannot be considered as the family arrangement unless, the defendants establish through cogent material that, the family arrangement has been made and same has to be substantiated with cogent evidence. It is also to be noted that, after the death of Shivappa Ainapur on 09.05.2015, all the properties stood in the name of late Shivappa Ainapur shall be devolved amongst all the children and therefore, the Trial Court has committed an error in excluding the suit properties namely 2A to 2F. The said aspect of the matter was not properly assessed by the First Appellate Court as required under Order 41 Rule 31 of CPC and therefore, I find force in the submission made by the learned counsel appearing for the appellant that, the appellant/plaintiff No.1 has - 10 - NC: 2025:KHC-D:4992 RSA No. 100482 of 2022 made out a case for interference and substantial question of law framed above favours the plaintiffs. 15. Accordingly, plaintiffs and defendants are entitled for 1/7th share each in the suit schedule properties. 16. In the result, I pass the following: ORDER i) Appeal is allowed. ii) Judgment and decree dated 01.04.2021 in RA No.45/2017 on the file Principal Judge, Family Court, Gadag, is hereby set aside. iii) Judgment and decree dated 06.10.2017 in OS No.162/2015 on the file of Additional Senior Civil Judge, Gadag, is set aside in respect of suit properties 2A to 2F. iv) Suit of the plaintiffs is decreed holding that the plaintiffs and the defendants are entitled for 1/7th share each in the suit schedule properties. Sd/- (E.S.INDIRESH) JUDGE SMM/List No.: 1 Sl No.: 42