- 1 - HC-KAR NC: 2025:KHC:23781-DB RFA No. 244 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF JULY, 2025 PRESENT THE HON'BLE MRS. JUSTICE ANU SIVARAMAN AND THE HON'BLE DR. JUSTICE K.MANMADHA RAO REGULAR FIRST APPEAL NO.244 OF 2020 (PAR) BETWEEN: 1. SMT AMRUTHA RAVINDRA KUMAR AGED ABOUT 58 YEARS D/O LATE ESTAAR 2. SMT SHASHIPRABHA AGED ABOUT 51 YEARS D/O LATE ESTAAR 3. SADHU SUNDAR AGED ABOUT 43 YEARS D/O LATE ESTAAR 4. SMT SHASHIKALA S AGED ABOUT 41 YEARS D/O LATE ESTAAR APPELLANT NOS. 1 TO 4 ARE RESIDING AT CHRISTIAN COLONY, III CROSS, MANDYA (APPELLANT NOS.1 TO 4 ARE THE LRS. OF PLAINTIFF NO.1 ESTAAR) 5. SMT. PUSHPAMMA SINCE DEAD REPRESENTED BY LRS 5(a) SMT. LALITHA AGED ABOUT 56 YEARS D/O LATE VARADARAJU Digitally signed by VIJAYALAKSHMI B N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:23781-DB RFA No. 244 of 2020 & LATE PUSHPAMMA 5(b) Mr. PAUL DAVID AGED ABOUT 54 YEARS, S/O LATE VARADARJU, & LATE PUSHPAMMA 5(c) Mr. MANUAL RAJ AGED ABOUT 44 YEARS, S/O LATE VARADARAJU & LATE PUSHPAMMA ALL ARE R/AT NO.3864/1, 15TH CROSS, MODEL HOUSE, RAJEEVA NAGAR, KARUNAPURA VILLAGE, MYSORE. 6. SMT KAMALA DAS AGED ABOUT 71 YEARS D/O LATE YAKOBAIAH W/O CHRISTHA DAS BEHIND GENERAL KARIAPPA SCHOOL AYYAPPA SWAMY EXTENSION HOSADURGA POST CHITRADURGA DISTRICT-577 501. 7. SMT J RATHNA AGED ABOUT 61 YEARS SINCE DEAD BY LRS 7(a) SMT. VIDYAKALVARI AGED ABOUT 45 YEARS, W/O SATHYA STANLEY PAUL, NO.672/2, 5TH CROSS, YATHAGADAHALLI VILLAGE, KOTHATHI HOBLI, GUTHALU, MANDYA-571 403. …APPELLANTS (BY SRI. VIVEKANANDA T P., ADVOCATE) - 3 - HC-KAR NC: 2025:KHC:23781-DB RFA No. 244 of 2020 AND: 1. SMT USHA AGED ABOUT 49 YEARS D/O LATE VISHWAKUMAR @ JAYARAJ 2. YESU KUMAR AGED ABOUT 46 YEARS S/O LATE VISHWAKUMAR @ JAYARAJ 3. SMT MARGARATE AGED ABOUT 44 YEARS D/O LATE VISHWAKUMAR @ JAYARAJ RESPONDENT NOS.1 TO 3 ARE RESIDING AT C/O USHA W/O KUMAR 11TH CROSS KARUNAPURA MYSORE-570 001. (RESPONDENTS NO.1 TO 3 ARE LRS OF DECEASED 1ST DEFENDANT) 4. JOHN @ JOHN TIMOTHY AGED ABOUT 66 YEARS S/O LATE YAKOBAIAH RESIDING AT NO 14, KURIMANDI ‘C’ BLOCK, KESERE, MYSORE-570 001. …RESPONDENTS (NOTICE TO R-1 TO R-3 HELD SUFFICIENT V/O DATED 09.09.2022; R-4 IS SERVED AND UNREPRESENTED) THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908 PRAYING TO i) CALL FOR RECORDS IN OS NO.58/2015 ON THE 0FILE OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC, CHAMARAJANAGAR AND ETC. - 4 - HC-KAR NC: 2025:KHC:23781-DB RFA No. 244 of 2020 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE DR. JUSTICE K.MANMADHA RAO ORAL JUDGMENT (PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN) This appeal is preferred against the Judgment and Decree of the Addl. Senior Civil Judge at Chamarajanagar dated 15.07.2019 in O.S.No.58/2015. 2. The appellants herein are the plaintiffs in the suit. 3. It was the case of the appellants that the appellants as well as Defendant Nos.1 and 2 were the six children of late Yakobaiah and Anandaputhramma @ Chinkramma. It was the contention that Yakobaiah died intestate and that he was enjoying the properties as absolute owner during his life-time. Later, after the death of Yakobaiah, the khata of the property was changed in the name of his wife Anandaputhramma and defendant Nos.1 and 2. Anandaputhramma also died intestate on 17.01.2011. The original defendants claiming to be the absolute owners - 5 - HC-KAR NC: 2025:KHC:23781-DB RFA No. 244 of 2020 of the suit schedule properties tried to sell the suit schedule properties; they also attempted to get the katha changed exclusively to their names, without including the names of the original plaintiffs. It was stated in the plaint that the plaintiffs are entitled to equal share of the suit schedule properties and therefore, they are jointly entitled to 4/6th share as per the Indian Succession Act. 4. The defendants had entered appearance and filed written statement in the Trial Court. The second defendant had filed a written statement admitting the relationship between the parties and the fact that the suit schedule properties were ancestral properties in their possession. However, it is their contention that the properties of Yakobaiah and his brother Dattha were divided and that the immovable properties of Dattha was given to Defendant Nos.1 and 2. It is further contended that Defendant Nos.1 and 2 had paid Rs.4 to 5 lakhs to the plaintiffs in lieu of their share in the suit schedule properties and the plaintiffs by receiving the amount, had relinquished their rights in the properties. - 6 - HC-KAR NC: 2025:KHC:23781-DB RFA No. 244 of 2020 5. The Trial Court framed following issues for consideration: 1. Whether the plaintiffs prove that, suit schedule properties are the joint family properties of plaintiffs and defendants? 2. Whether the defendant No.2 proves that, half share in all the suit schedule properties belongs to their uncle Datta and he was give his share in the suit schedule properties in favour of defendants No.1 and 2? 3. Whether the plaintiffs are entitled for relief of partition? If so, what is the quantum of share? 4. What decree or order? 6. After considering the pleadings and the evidence, the Trial Court decreed the suit in part finding the plaintiffs entitled to 1/18th share each in the suit schedule items No.1 to 7. Learned counsel for the appellants contends that the Trial Court lost sight of the law to be applied to the facts of the case. It is submitted that a reading of Paragraph 15, that is, the consideration of Issue No.3 would reveal that the Trial Court had lost sight of the fact that the parties were Christians and had proceeded to - 7 - HC-KAR NC: 2025:KHC:23781-DB RFA No. 244 of 2020 consider the question under the provisions of the Hindu Succession Act, as amended in 2005. 7. Learned counsel for the appellants submits that since the parties were Christians and the law to be applied was the Indian Succession Act, the succession would be covered by the provisions of Chapter II of the Indian Succession Act. A reading of Sections 33 to 37 of the Indian Succession Act would show that when the intestate has died leaving behind only children, the property has to be equally divided among the children. 8. Section 37 of the Indian Succession Act, read as follows: 37. Where intestate has left child or children only.- Where the intestate has left surviving him a child or children, but no more remote lineal descendant through a deceased child, the property shall belong to his surviving child, if there is only one, or shall be equally divided among all his surviving children. 9. It is submitted that if the correct provision of law were to be applied, the plaintiffs would have been jointly - 8 - HC-KAR NC: 2025:KHC:23781-DB RFA No. 244 of 2020 entitled to 4/6th share, since Yakobaiah and Anandaputhramma had six children and each child would be entitled to an equal share, that is, 1/6th share each. 10. We have heard the learned counsel for the appellant. We have also perused the Judgment as well as the pleadings and the provisions of law. 11. Though notice had been taken out to the respondents in this appeal and has been duly served, there is no appearance for the said respondents. 12. Having considered the contentions advanced and in view of the fact that it is an admitted fact that the parties are Christians by religion and they are governed by the Indian Succession Act, we are of the opinion that the findings as recorded in Paragraph 17 of the impugned Judgment were factually and legally incorrect. In view of the fact that the four plaintiffs and defendants No.1 and 2 were admittedly children of deceased Yakobaiah and Anandaputhramma, it is clear that they would be entitled to 1/6th share each in the suit schedule property of their - 9 - HC-KAR NC: 2025:KHC:23781-DB RFA No. 244 of 2020 deceased parents under Section 37 of the Indian Succession Act. In the result, (i) The appeal is allowed. (ii) The Judgment and Decree of the Trial Court is therefore, liable to be interfered with and it is set aside. (iii) The plaintiffs who are the children of Yakobaiah and Anandaputhramma along with Defendants No.1 and 2 would be entitled to one share each in the suit schedule property. The plaintiffs are held entitled to 4/6th share in the aggregate. The decree shall be drawn up accordingly. Sd/- (ANU SIVARAMAN) JUDGE Sd/- (DR.K.MANMADHA RAO) JUDGE BNV CT-ADP List No.: 1 Sl No.: 2