- 1 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF JULY, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1953 OF 2013 (PAR) BETWEEN: JSS MAHAVIDYAPEETA, EMPLOYEES HOUSING CO-OPERATIVE SOCIETY OFFICE NOW SITUATED AT JSS LAYOUT, SHAKTHINAGAR, NAZARBAD MOHALLA, MYSORE – 570 010 REP. BY SRI. VIJAYADARSHINI SECRETARY –IN-CHARGE …APPELLANT (BY SRI. B.N. MAHESH CHANDRA, ADVOCATE FOR SRI. NAVEEN G.S., ADVOCATE) AND: 1. 2. SMT. DEVAMMA WIFE OF LATE BASAVEGOWDA (SINCE DECEASED REPRESENTED BY HER LRS RESPONDENT 2 AND 3) SMT. SANAMMA, D/O LATE BASAVEGOWDA, AGED ABOUT 41 YEARS, 3. SRI SIDDAIAH AGED ABOUT 51 YEARS, S/O LATE BASAVEGOWDA, Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 ALL ARE R/AT LALITHADRIPURA VILLAGE, VARUNA HOBLI, MYSORE TALUK MYSORE – 570 010 …RESPONDENTS (BY SRI. SUPREETH, ADVOCATE FOR SRI. P. SRINIVASAIAH, ADVOCATE FOR R2 R3 SERVED R1 DECEASED, R2 & R3 ARE LRS) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 8.8.2013 PASSED IN R.A.NO.34/2013 ON THE FILE OF THE III ADDL. DISTRICT JUDGE, MYSORE, DISMISSING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DTD 3.11.2008 PASSED IN OS.NO.154/2002 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES AND CIVIL JUDGE (SR.DN) MYSORE. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 08.08.2013, passed in R.A.No.34/2013 by the III Additional District Judge, Mysore and the judgment and decree dated 03.11.2008 passed in O.S.No.154/2002 by the Judge Small Causes and Civil Judge (Sr.Dn.), Mysore. - 3 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was not a party before the trial Court, respondents No.1 and 2 were the plaintiffs and respondent No.3 was the defendant. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that one Basavaiah @ H.Basavegowda has a wife by name Smt. Devamma, i.e., plaintiff No.1. Plaintiff Nos . 2 and 3 are the daughters of late Basavaiah, and the defendant is the son of plaintiff No.1 and late Basavaiah. The suit schedule properties were partitioned sometime during 1964-65 amongst Siddegowda, Basavaiah alias H. Basavegowda, Madegowda, Halaiah alias Kullaiah, children of one Halegowda. In the said partition, a portion of Sy.No.58, measuring 1 acre 37 guntas out of 7 acres 14 guntas situated in Lalithadripura village, fell to the share - 4 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 of Basavaiah alias H. Basavegowda, who is the father of the defendant. Another portion of 1 acre 37 guntas fell to the share of Siddegowda, and since Madegowda had predeceased without any legal heirs, the balance portion of Sy.No.58, to an extent of 3 acres 20 guntas, was allotted to the share of Halliah @ Kullaiah. Out of the said 3 acres 20 guntas, Halaiah alias Kullaiah had sold an extent of 1 acre 35 guntas to one Mairyachari by a registered sale deed dated 05.10.1967, and retained an extent of 1 acre 25 guntas. The defendant’s father died intestate on 23.09.1988, leaving behind his wife, the defendant, and two daughters, i.e., plaintiff Nos . 2 and 3. 3.1. The defendant filed a suit for declaration in O.S.No.50/2001 on the file of Civil Judge, (Sr.Dn.), Mysore against Smt. Honnamma w/o late Halaiah alias Kullaiah alleging interference with his rights, title and possession over an extent of 1 acre 37 guntas in Sy.No.58, contending that after the death of his father, he had continued to be in possession and enjoyment of the suit - 5 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 schedule properties as the absolute owner thereof. The said suit was ended in a compromise. It is contended that the suit schedule properties are the joint family properties of the plaintiffs and the defendant. There is no partition effected between the plaintiffs and the defendant. Hence, the plaintiffs together demanded partition, but the defendant refused to effect partition. Therefore, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 3.2. The defendant filed a written statement admitting the relationship between the plaintiffs and the defendant. It is contended that the plaintiffs had instigated the defendant to sell item No.1 of the suit schedule property to JSS Employees Housing Co-operative Society and the sale proceeds were divided amongst themselves and as such, suit item No.1 property is not available for partition. Insofar as item No.2 is concerned it is the dwelling house and the defendant being the only son, is residing in the said house, contending that the - 6 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 plaintiffs have no right to seek partition in a single dwelling house and they are not entitled to share in item No.2 of the suit schedule property. Hence, on these grounds, prays to dismiss the suit. 3.3. The Trial Court, based on the pleadings of the parties, framed the following issues: 1) Whether the plaintiffs are entitled for partition and separate possession of their 7/12th share in the suit schedule properties as alleged? 2) What order or decree? 3.4. The plaintiffs, to substantiate their case, plaintiff No.2 was examined as PW-1 and marked 6 documents as Exs.P1 and P6. In rebuttal, despite granting sufficient opportunity, the defendant neither entered into the witness box, not produced any documentary evidence. The trial Court, after recording the evidence of PW.1, hearing both sides, and assessing verbal and documentary evidence, answered issue No.1 partly affirmative, issue No.2 as per the final order. - 7 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 3.5. The suit of the plaintiffs was decreed with costs. It is ordered and decreed that each plaintiffs are entitled to a 1/3rd share and the defendant is also entitled to a 1/3rd share in the suit schedule properties. The partition of the suit schedule properties shall have to be effected through process of the Court by metes and bounds. There shall be a separate enquiry about mesne profits. 3.6. The appellant herein, being a purchaser of suit item No.1 of the suit schedule property, aggrieved by the judgment and preliminary decree passed in O.S.No.154/2002, preferred an appeal in R.A.No.34/2013 on the file of III Additional District Judge, Mysore, and also sought the leave of the first Appellate Court to file the appeal. 3.7. The First Appellate Court, after hearing the learned counsel for the parties, has framed the following points for consideration: - 8 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 1) Whether the judgment and decree under appeal is erroneous, illegal and calls for any interference? 2) What order? 3.8. The First Appellate Court, after reassessing the verbal and documentary evidence, answered point No.1 in the negative, and point No.2 as per the final order. The appeal was dismissed vide judgment dated 08.08.2013. The appellant, aggrieved by the judgments and decrees passed by the courts below, has filed this Regular Second Appeal. 4. Heard the arguments of Sri. B.N. Mahesh Chandra, learned counsel for the appellant and Sri. Naveen G.S., learned counsel for the plaintiffs. 5. Learned counsel for the appellant submits that the defendant filed a suit in O.S.No.50/2001 for the relief of declaration of title, and the plaintiffs had knowledge regarding the pendency of the suit in O.S.No.50/2001. The plaintiffs did not file an application in the said suit - 9 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 claiming their share. He submits that the said suit was ended in a compromise and based on the decree passed in O.S.No.50/2001, the defendant became the absolute owner of the suit schedule property. He submits that based on the decree passed in O.S.No.50/2001, the appellant herein purchased item No.1 of the suit schedule property from the defendant. He submits that the appellant herein is a bona fide purchaser for value without notice. He also submits that the first Appellate Court ought to have remanded the matter to the trial Court with liberty to the appellant to file a written statement. The first Appellate Court, instead of remanding the matter, has dismissed the appeal. Therefore, the judgments passed by the courts below are arbitrary and erroneous. Hence, on these grounds, prays to allow the appeal. 6. Per contra, learned counsel for the plaintiffs submits that the plaintiffs are not a party in O.S.No.50/2001 and further the parties have not acted upon the compromise decree passed in O.S.No.50/2001, - 10 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 and he submits that admittedly, the suit schedule properties were acquired by Basavaiah in the partition and the suit schedule properties become his self-acquired properties in view of the proposition laid down by the Hon’ble Apex Court in the case of UTTAM VS. SOWBHAGYA SINGH reported in AIR 2016 SC 1169 and reaffirmed by the Hon’ble Apex Court in the case of ANGADI CHANDRANNA VS. SHANKAR AND OTHERS reported in CIVIL APPEAL NO.5401/2025. He also submits that the appellant herein, before purchasing item No.1 of the suit schedule property, has not made any enquiry as per Section 55 of the Transfer of Property Act. He also submits that the name of the defendant was not shown in the revenue records. The appellant herein had not acquired any right, title or interest over item No.1 of the suit schedule property by the registered sale deed alleged to have been executed by the defendant in favour of the appellant herein. He submits that the appellant has not made any application for impleading in the instant suit, on - 11 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 the ground that he had purchased item No.1 of the suit schedule property from the defendant. He also submits that the plaintiffs had filed a final decree proceedings and a Court commissioner was appointed, and he has already submitted a report. Due to the pendency of this appeal, the Final Decree Proceedings are kept in abeyance with a liberty to revive the order after the disposal of this instant appeal. Hence, on these grounds, prays to dismiss the appeal. 7. This Court, vide order dated 12.07.2016, admitted the appeal on the following substantial questions of law : 1) Were the courts below justified in decreeing the suit of the plaintiff granting 1/3rd share to the plaintiff relying upon Ex.P1 RTC extract especially in view of the amended proviso to Section 6 of the Hindu Succession (Amended) Act, 2005? 2) Were the courts below justified in granting 1/3rd share in view of the dictum of the Hon’ble Supreme Court in the case of Uttam vs. Saubhag Singh and others reported in (2016) 4 SCC 68 (Relevant Para 18)? - 12 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 3) Were the courts below justified in decreeing the suit granting 1/3rd share to the plaintiff without following the mandatory procedure as contemplated under Order 41 Rule 31 of the Code of Civil Procedure, 1908? 4) Were the Courts below justified in decreeing the suit granting 1/3rd share to the plaintiff in view of the erroneous interpretation of amended proviso to Section 6 of the Hindu Succession (Amended) Act, 2005? 8. REG. SUBSTANTIAL QUESTIONS OF LAW NOS.1 AND 4: Substantial questions of law 1 and 4 are interlinked, and are taken together for common discussion to avoid repetition of facts. The plaintiffs to substantiate their case, plaintiff No.2 was examined as PW.1. She reiterated the plaint averments in the examination-in-chief and deposed that the suit schedule properties were acquired by Basavaiah in the partition effected between him and his siblings in 1964-65. Basavaiah died intestate. After the death of - 13 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 Basavaiah, the plaintiffs and the defendant have succeeded to the estate of the deceased Basavaiah. The plaintiffs and the defendant are members of a Hindu joint family, and no partition has been effected. To prove that the suit schedule properties were in the name of Basavaiah, the plaintiffs have produced a copy of the RTC extract in respect of the land bearing Sy.No.58 for 2000- 01, which stands in the name of Halaiah and his brothers. Ex.P2 is a copy of the legal notice got issued by the plaintiffs calling upon the defendant to effect partition regarding the suit schedule property. Ex.P3 is the postal acknowledgement, which discloses that notice was served to the defendant. Ex.P4 is the certified copy of the order sheet in O.S.No.50/2001, which discloses that the defendant has filed a suit for declaration against Smt. Honnamma. Ex.P5 is the certified copy of the decree passed in O.S.No.50/2001, which discloses that the defendant therein, filed a memo stating that she has no objection to the decree of the suit as prayed for. - 14 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 Accordingly, based on the memo filed by the defendant therein, the suit was decreed vide judgment dated 13.11.2001. Ex.P6 is the certified copy of the memo filed by the defendant therein i.e., Smt. Honnamma, which discloses that she has conceded the prayer of the plaintiff therein i.e., the defendant herein. The defendant therein had no objection to the decree of the suit as prayed for by the plaintiff therein, and the suit was decreed accordingly. 9. Though sufficient opportunity was provided to the defendant, the defendant did not enter the witness box. There is no dispute about the properties acquired by Basavaiah in the partition effected between him and his siblings. In the said partition, the suit schedule properties fell to the share of Basavaiah. The plaintiffs and the defendant, being the members of the joint family, no partition was effected between them. Thus, plaintiff Nos.2 and 3, being the daughters, and plaintiff No.1, who is the wife of Basavaiah, are entitled to shares in the suit schedule properties. During the pendency of the suit, - 15 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 plaintiff No.3 died. Plaintiff No.2, being a daughter, is a coparcener as per the amended provision under Section 6 of the Hindu Succession (Amendment) Act, 2005. She is entitled to an equal share in the same manner as that of a son. The trial Court, considering the death of plaintiff No.2, has granted a 1/3rd share to each surviving plaintiffs and a 1/3rd share to the defendant. Further, in view of the law laid down by the Hon’ble Apex Court in the case of VINEETA SHARMA VS. RAKESH SHARMA reported in AIR 2020 SC 3717, wherein the Hon’ble Apex Court held that the daughters are entitled to an equal share in the same manner as a son. The trial Court was justified in granting a 1/3rd share each to plaintiff No.1, plaintiff No.2 and the defendant and considering the amended provision of Section 6 of the Hindu Succession (Amendment) Act, 2005, has rightly decreed the suit of the plaintiffs. 10. Though the defendant has filed a suit in O.S.No.50/2001 against Smt. Honnamma for the relief of the declaration of title, in the said suit, Smt. Honnamma - 16 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 filed a memo for decreeing the suit. Admittedly, the plaintiffs are not parties to the said suit, and the compromise decree passed in O.S.No.50/2001 is not binding on the plaintiffs. After the disposal of the said suit, the defendant has not made any attempt to get transfer the suit schedule properties in the name of the defendant. It clearly discloses that the defendant has not acted upon the compromise decree passed in O.S.No.50/2001, and further, as on the date of execution of a registered sale deed in favour of the appellant herein, the revenue records were not in the name of the defendant. The appellant herein is not a bona fide purchaser for value without notice. In view of the above discussion, I answer substantial questions of law Nos.1 and 4 in the affirmative. 11. Reg. SUBSTANTIAL QUESTIONS OF LAW NO.3: The appellant herein, aggrieved by the judgment and preliminary decree passed in O.S.No.154/2002, filed an appeal in R.A.No.34/2013 on the file of III Additional - 17 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 District Judge, Mysore and sought leave to file an appeal as the appellant, as he was not a party in the suit O.S.No.154/2002. The first Appellate Court granted leave to file an appeal. The first Appellate Court has considered the entire evidence on record and held that the appellant herein has purchased the property during the pendency of the suit. The sale transaction is hit by the doctrine of lis pendency and further recorded its finding that the appellant herein purchased item No.1 of the suit schedule property, that itself discloses that the parties have definite idea about the identity of the property. There is a dispute regarding the identity of item No.1 of the suit property and the sale deed itself clarifies the identity of the said property along with the decree passed in O.S.No.50/2001 as per Ex.P5, and the appellant will step into the shoes of the defendant, thus, the remedy open for the appellant herein to seek an equitable relief opens only in the FDP proceedings. The first Appellate Court has protected the interest of the appellant herein to seek an equitable - 18 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 remedy in the FDP proceedings. The first Appellate Court also placed reliance on the decisions of the Hon’ble Apex Court and the judgment of the Allahabad High Court. The first Appellate Court has re-appreciated the entire evidence on record. There is substantial compliance with Order LXI Rule 31 of the CPC. In view of the above discussion, I answer the substantial question of law No.3 in the affirmative. 12. REG. SUBSTANTIAL QUESTION OF LAW NO.2: The Hon’ble Apex Court in the case of UTTAM VS. SAUBHAG SINGH AND OTHERS reported in 2016(4) SCC 68 held in para No.20, which reads as follows: “Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as such, there being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi v. Lal Chand, (2006) 8 SCC 581, and Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419, were cited for this purpose. None of these judgments would take the appellant any further in view of the fact that in none of them is - 19 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 there any consideration of the effect of Sections 4, 8 and 19 of the Hindu Succession Act. The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarized as follows:- (i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6). (ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition. (iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship. (iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu’s widow get a share in the joint family property. (v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self- acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship. - 20 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 (vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants. 13. There is no dispute regarding the proposition laid down by the Hon’ble Apex Court in the case of UTTAM VS. SAUBHAG SINGH AND OTHERS (referred supra), and also in view of the subsequent judgment of the Hon’ble Apex Court in the case of VINEETA SHARMA (referred supra). The courts below were justified in granting equal shares. In view of the above discussion, I answer the substantial question of law No.2 in the affirmative. 14. Accordingly, I proceed to pass the following order: ORDER i. The Regular Second Appeal is dismissed. ii. The judgments and decrees passed by the courts below are hereby confirmed. - 21 - HC-KAR NC: 2025:KHC:23322 RSA No. 1953 of 2013 iii. No order as to the costs. In view of the dismissal of the appeal, pending IAs, do not survive for consideration and are accordingly disposed of. Sd/- (ASHOK S.KINAGI) JUDGE SKS