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2025 DAILYLAW 48306 (KAR)

MALLEGOWDA v. SHIVANNA

RSA/1445/2014 · 2025-09-22

Anant Ramanath Hegde

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Judgment text

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- 1 - HC-KAR NC: 2025:KHC:37964 RSA No. 1445 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 1445 OF 2014 (PAR) BETWEEN: 1. MALLEGOWDA S/O K G JAVEREGOWDA, AGED ABUOT 61 YEARS, R/O CHIKKAPADUVAKOTE VILLAGE, BILIKERE HOBLI, HUNSUR TALUK MYSORE DISTRICT - 571105. 2. KRISHNEGOWDA S/O K G JAVAREGOWDA AGED ABOUT 59 YEARS, R/O CHIKKAPADUVAKOTE VILLAG, BILIKERE HOBLI, HUNSUR TALUK, MYSORE DISTRICT - 571105 …APPELLANTS (BY SRI SYED AKBAR PASHA, ADVOCATE FOR SRI MAHANTESH S HOSMATH, ADVOCATE) AND: 1. SHIVANNA S/O K G JAVAREGOWDA, AGED ABOUT 46 YEARS, 2. CHANDREGOWDA S/O K G JAVAREGOWDA, AGED ABOUT 57 YEARS, RESPONDENT NO.1 AND 2 ARE R/O CHIKKAPADUVAKOTE VILLAGE, BILIKERE HOBLI, HUNSUR TALUK, MYSORE DISTRICT -571105. Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:37964 RSA No. 1445 of 2014 3. SMT. SHARDAMMA W/O REJEGOWDA, AGED ABOUT 44 YEARS 4. SMT. SARJOAMMA W/O RAMESH AGED ABOUT 41 YEARS, 5. SMT. SHASHI W/O GURUMALLA, AGED ABOUT 38 YEARS, 6. SMT LOLAKSHI D/O LATE KRISHNEGOWDA, AGED ABOUT 29 YEARS, RESPONDENT NO.3 TO 6 ARE R/O KESTHURU KOPPALU VILLAGE, CHUNCHANAKATTE HOBLI, K R NAGAR TAUK, MYSORE DIST-571105 …RESPONDENTS (BY SRI RAGHAVENDRA M N, ADV. FOR R1, R2 SERVED AND UNREPRESENTED, SRI S B HALLI, ADVOCATE FOR R3 - R6) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 8.8.2014 PASSED IN R.A.NO.65/2013 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, HUNSUR, DISMISSING THE APPEAL AND MODIFYING THE JUDGEMENT AND DECREE DTD 18.2.2010 PASSED IN OS.NO.204/2003 ON THE FILE OF THE CIVIL JUDGE (SR.DN) & JMFC., HUNSUR. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE - 3 - HC-KAR NC: 2025:KHC:37964 RSA No. 1445 of 2014 ORAL JUDGMENT This Regular Second Appeal is filed against a concurrent finding in a suit for partition, separate possession and mesne profit. 2. The relationship of the parties is not in dispute. The admitted genealogy is as under: Javaregowda (dead) Gowramma (wife dead) Chikkamma Mallegowda(D1) Krishnegowda(D2) Chandregowda(D3) Shivanna Shardamma (Dead) (Plaintiff) / Krishnegowda (Husband) / -------------------------------------------------------- / / / Sarojamma (D5) Shashi (D6) Lolakshi (D7) 3. Javaregowda and Gowramma have 4 sons and 2 daughters. One of the sons Shivanna has filed a suit claiming partition. Before the Trial Court, the plaintiff claimed 7/30th share on the premise that the suit properties are ancestral properties. The trial Court granted (D4) - 4 - HC-KAR NC: 2025:KHC:37964 RSA No. 1445 of 2014 a decree for 7/30th share overruling the defence of defendants No.1 to 3 the brothers of the plaintiff that the partition has taken place in the year 1995 among the male issues of Javaregowda. 4. The Appellate Court also dismissed the appeal filed by defendant Nos.1 and 2. Hence, the present Second Appeal. 5. The appeal is admitted to consider the following substantial question of law: "Whether the share awarded by the Trial Court and confirmed by the First Appellate Court is in conformity with the provisions of the Hindu Succession Act, 1956." 6. Learned counsel appearing for the appellants would submit that Javaregowda was the propositus and Gowramma was his wife. The couple had 4 sons and 2 daughters. Javaregowda died long back. The daughters of Javaregowda and Gowramma were married and settled in their matrimonial family. Thereafter, the plaintiff and - 5 - HC-KAR NC: 2025:KHC:37964 RSA No. 1445 of 2014 defendants No.1, 2 and 3 divided the properties in a oral partition among themselves and that partition was later reduced into writing and an application was filed to mutate the names of the parties pursuant to the said partition. 7. There was a dispute before the Tahsildar pursuant to the aforesaid partition. Plaintiff himself moved an application to mutate the names in the revenue records of the property pursuant to the said partition. The plaintiff’s mother and defendant No.1 filed objection to the said partition contending that the partition has not taken place. However, the Tahsildar passed an order upholding the partition. Thus, it is urged that the plaintiff cannot seek a partition as his claim relating to partition is accepted. 8. It is not mentioned in the plaint as to when the mother of the plaintiff and defendants died. Admittedly, after the demise of Javaregowda, his wife Gowramma is also entitled to a share. She is not given share in the alleged oral partition. Admittedly, the daughters are also - 6 - HC-KAR NC: 2025:KHC:37964 RSA No. 1445 of 2014 not given share in the alleged oral partition. Hence, oral partition cannot be said to be valid in the eye of law. 9. Both courts have rightly held that the plea of previous partition is not accepted. 10. It is further submitted that the daughters have not disputed the oral partition and they have not claimed any share as such they should not be given any share. 11. This Court cannot accept the said contention. The daughters have acquired right over the property after the demise of Javaregowda as class-I heirs of Javaregowda. Unless their share is relinquished in the manner known to law, the daughters do not lose right over the property. Hence, the contention that the daughters have no share in the properties cannot be accepted. 12. What is required to be noticed is that the properties are ancestral properties. The previous partition of 1995 is not established. This being the position, amended Section 6 of the Hindu Succession Act, 1956 - 7 - HC-KAR NC: 2025:KHC:37964 RSA No. 1445 of 2014 does apply to the facts of this case. Both Trial Court and Appellate Court have not noticed this factor and have awarded a larger share to the plaintiff by effecting a notional partition. Same is not permissible. 13. Hence, this Court is of the view, that each of the sons and daughters of Javaregowda is entitled to equal share i.e., 1/6th share in the suit schedule properties. 14. Since Chikkamma, the eldest daughter of Javaregowda is said to be no more, her 1/6th share will devolve upon her class-I heirs, namely, her husband- Krishnegowda and 3 children-Sarojamma, Shashi and Lolakshi. 15. Substantial question of law answered accordingly. 16. Hence the following: - 8 - HC-KAR NC: 2025:KHC:37964 RSA No. 1445 of 2014 ORDER i) The appeal is allowed in-part. ii) The Judgment and decree dated 08.08.2014 in RA.No.65/2013 passed by the learned Fast Track Court, Hunsur and the Judgment and decree dated 18.02.2010 in OS.No.204/2003 passed by the learned Additional Civil Judge (Sr.Dn) Hunsur are modified. iii) Plaintiff is entitled to 1/6th share in the suit schedule properties. iv) Each of the children of Late Javaregowda is entitled to 1/6th share in the suit properties v) 1/6th share of eldest daughter of Javaregowda, namely, Chikkamma will devolve upon her husband- Krishnegowda and 3 daughters, namely Sarojamma, Shashi and Lolakshi as Chikkamma is no more. - 9 - HC-KAR NC: 2025:KHC:37964 RSA No. 1445 of 2014 No order as to cost. Sd/- (ANANT RAMANATH HEGDE) JUDGE PHM List No.: 1 Sl No.: 6 ...