- 1 - HC-KAR NC: 2025:KHC:37951 RSA No. 1042 of 2013 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. 1042 OF 2013 (PAR) BETWEEN: SRI.KEMPANNA S/O LATE BASAVAIAH AGED ABOUT 66 YEARS R/A HASAGULI VILLAGE GUNDLUPET TALUK CHAMARAJANAGAR DISTRICT …APPELLANT (BY SMT. KAVYA ANIL KUMAR, ADVOCATE FOR SRI. ANIL KUMAR S., ADVOCATE) AND: 1. SMT.NAGAMMA D/O BASAVAIAH AGED ABOUT 63 YEARS 2. SRI MADAPPA S/O BASAVAIAH AGED ABOUT 73 YEARS BOTH R1 AND R2 ARE R/AT HASAGULI VILLAGE, GUNDLUPET TALUK, CHAMARAJANAGAR DISTRICT 3. SMT RAJAMMA D/O BASAVAIAH W/O MADAPPA AGED ABOUT 45 YEARS R/A MOOKAHALLI HUNVI VILLAGE, GUNDLUPET TALUK, CHAMARAJANAGAR DISTRICT …RESPONDENTS (BY SRI. P. MAHESH, ADVOCATE FOR R1 R2 SERVED AND UNREPRESENTED) Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:37951 RSA No. 1042 of 2013 THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 30.3.2013 PASSED IN R.A.NO.29/2010 ON THE FILE OF THE DISTRICT & SESSIONS JUDGE, CHAMARAJANAGAR, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGEMENT AND DECREE DATED 07.01.2010 PASSED IN O.S.NO.7/2008 ON THE FILE OF THE CIVIL JUDGE (SR.DN) & CJM, CHAMARAJANAGAR. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT This appeal is arising from the judgment and decree in a suit for partition and separate possession. 2. The trial Court granted 2/5th share to plaintiff No.2, which also included 1/5th share of plaintiff No.1, who died during the pendency of the appeal in the first round of appeal. Since plaintiff No.1 died during the pendency of the first round of appeal and plaintiff No.2 claimed to be the legatee of plaintiff No.1 under the registered Will dated 23.03.2005, the appeal was remitted to the trial Court for fresh consideration. - 3 - HC-KAR NC: 2025:KHC:37951 RSA No. 1042 of 2013 3. Before the trial Court, the plaintiff No.2 produced Will and led evidence on the said Will of plaintiff No.1. 4. On consideration of the claim based on the Will dated 23.03.2025 alleged to have been executed by plaintiff No.1, trial Court granted 2/5th share to the plaintiff No.2. 5. Though the operative portion of the judgment does not specify the share allotted to defendants Nos.1 to 3, since the relationship is admitted and as the remaining defendants are the siblings of plaintiff No.2, the Court can assume that each of the remaining defendants, is having 1/5th share. 6. Defendant No.2 filed the appeal challenging the aforementioned judgment and decree. First Appellate Court in R.A.No.29 of 2010 upheld the execution of Will in favour of plaintiff No.2 and modified the share by assuming a notional partition immediately before the death of the propositus Basavaiah who died in 1997. - 4 - HC-KAR NC: 2025:KHC:37951 RSA No. 1042 of 2013 7. The Trial Court as well as the First Appellate Court have negatived the contention of previous partition pleaded by defendant No.2. 8. Hence the present second appeal by defendant No.2. The plaintiff No.2 and rest of the defendants have accepted the judgment and decree passed by First Appellate Court. 9. Certain facts are not in dispute. The properties in question originally belonged to late Basavaiah. He had two sons namely, Kempanna and Madappa and two daughters and wife. 10. By the time the suit was filed in 2008, late Basavaiah was no more. The plaintiffs claim that he died 12 years prior to the suit. The defendants contended that he died 27 years prior to the suit. 11. The plaintiffs claim that the suit properties were self-acquired properties of late Basavaiah. The defendants contended some of the properties are the ancestral properties and some properties are self acquired. - 5 - HC-KAR NC: 2025:KHC:37951 RSA No. 1042 of 2013 12. There is no dispute that father of the plaintiff No.2 and remaining defendants - Basavaiah died intestate after 1956. In any case, it is not the defence that the partition has taken place during the lifetime of Basavaiah. 13. This being the position, under Section 6 of amended Hindu Succession Act, 1956, all the children of Basavaiah will have equal share in the properties, so also the wife. Thus plaintiff No.1 - the wife of Basavaiah inherited 1/5th share. Plaintiff No.2 - the daughter of Basavaiah inherited 1/5th share and each of the defendants No.1 to 3 - the remaining children of Basavaiah inherited 1/5th share. 14. During the pendency of the first appeal in the first round, plaintiff No.1 died and plaintiff No.2 claims that her mother executed a registered deed in favour of plaintiff No.2. 15. The matter was remitted to the Trial Court to consider the claim related to the alleged Will dated 23.03.2005 said to have been executed by plaintiff No.1. - 6 - HC-KAR NC: 2025:KHC:37951 RSA No. 1042 of 2013 Trial Court has recorded the evidence of the attesting witness. The original Will is produced and based on appreciation of evidence has concluded that plaintiff No.1 has executed a Will in favour of plaintiff No.2. After going through the said Will marked at Ex.P14 and evidence placed on record, this Court does not find any reason to interfere with the finding of the Trial Court and First Appellate Court relating to the proof of execution of said Will dated 23.03.2005. 16. It is also noticed that plaintiff No.1 had filed a suit along with plaintiff No.2 against remaining children. This being the position, it appears that the plaintiff No.1 shared a strained relationship with defendants No.1 to 3. 17. However, First Appellate Court has effected partition by assuming a notional partition immediately before the death of Basavaiah. Said finding of First Appellate Court is incorrect in view of the retro active effect to amended Section 6 of the Hindu Succession Act, 1956. - 7 - HC-KAR NC: 2025:KHC:37951 RSA No. 1042 of 2013 18. Since no previous partition is pleaded and established prior to death of Basavaiah, all the children of Basavaiah are entitled to equal share along with wife of Basavaiah. 19. This being the position, plaintiff No.2 will acquire 1/5th share on her own after the demise of the father and 1/5th share of her mother pursuant to the Will executed by her mother. Remaining three children will acquire 1/5th share each. 20. Hence, the following: ORDER i) Appeal is allowed-in-part. ii) The judgment and decree dated 30.03.2013 in R.A. No.29/2010 on the file of District Judge at Chamarajanagar are modified. iii) The judgment and decree dated 07.01.2010 in O.S. No.7/2008 on the file of the Civil Judge (Senior Division), Chamarajanagar are modified. iv) Plaintiff No.2 is entitled to 2/5th share in the suit schedule properties. - 8 - HC-KAR NC: 2025:KHC:37951 RSA No. 1042 of 2013 v) Each of the defendants is entitled to 1/5th share in the suit schedule properties. vi) Registry to draw decree accordingly. Sd/- (ANANT RAMANATH HEGDE) JUDGE YN,CHS List No.: 1 Sl No.: 13