- 1 - HC-KAR NC: 2025:KHC-D:11658 RFA No. 100417 of 2018 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD BENCH DATED THIS THE 9TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI REGULAR FIRST APPEAL NO. 100417 OF 2018 (PAR/POS-) BETWEEN: SMT. RAJASHREE W/O. MUDAKAPPA ACHANNAVAR AGE:47 YEARS, OCC:AGRICULTURE & HOUSEHOLD WORK, R/O:HULIKATTI VILLAGE -591344 TAL:GOKAK, DIST:BELAGAVI &APPELLANT (BY SRI. G. B. NAIK and SMT. P. G. NAIK, ADVOCATES) AND: 1. SHRI. UDDAPPA LAXMAPPA BURLI DELETED SINCE HIS LRS ALREADY ON RECORD AS APPELLANT NO.1 & RESP. NOS. 2 to 4. 2. SHRI. ITTAPPA UDDAPPA BURLI, AGE:53 YEARS, OCC:AGRICULTURE, R/O:HIRENANDI VILLAGE 591233 TAL:GOKAK, DIST:BELAGAVI 3. SHRI. LAXMAN UDDAPPA BURLI, AGE:51 YEARS, OCC:AGRICULTURE, R/O:HIRENANDI VILLAGE-591233 TAL:GOKAK, DIST:BELAGAVI. 4. SHRI. BASAPPA UDDAPPA BURLI, AGE:43 YEARS, OCC:AGRICULTURE, R/O:HIRENANDI VILLAGE-591233 TAL:GOKAK, DIST:BELAGAVI. 5. SMT. RUKUMAVVA W/O. BEERAPPA KURABANNAVAR AGE: 63 YEARS, OCC: AGRICULTURE & HOUSEHOLD WORK, MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.09.15 17:50:16 +0530 - 2 - HC-KAR NC: 2025:KHC-D:11658 RFA No. 100417 of 2018 R/O. HIRENANDI VILLAGE, TAL: GOKAK, NOW AT SANGANAKERI-591224, TAL: MUDALAGI DIST: BELAGAVI. &RESPONDENTS (BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE FOR R2 TO R4; R1-DECEASED; R2 TO R4 ARE LR9S OF DECEASED R1; SRI. SANTOSH B. MALLIGAWAD, ADVOCATE FOR R5) THIS RFA IS FILED UNDER SECTION 96 R/W ORDER XLI RULE 1 & 2 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYED THAT, THE JUDGMENT AND DECREE DATED 13.06.2018 PASSED IN O.S.NO.458/2014 BY THE I ADDL. SENIOR CIVIL JUDGE, GOKAK MAY KINDLY BE SET ASIDE AND SUIT OF THE PLAINTIFF MAY KINDLY BE DECREED BY AWARDING HER LEGITIMATE 1/5TH SHARE IN THE SUIT PROPERTIES, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI ORAL JUDGMENT This Regular First Appeal is filed by the appellant- plaintiff, challenging the judgment and decree passed in O.S.No.458/2014 dated 13.06.2018 by the learned I Additional Senior Civil Judge, Gokak. 2. For convenience, the parties are referred to, based on their rankings before the trial court. The appellant was the plaintiff and the respondents were the defendants. - 3 - HC-KAR NC: 2025:KHC-D:11658 RFA No. 100417 of 2018 3. Brief facts, leading rise to the filing of this Regular First Appeal, are as follows: 4. The plaintiff filed a suit against the defendants for a partition and separate possession regarding the lands bearing Sy.Nos.43/1, 527, 110 and 42, situated Hirenandi village of Gokak Taluk. It is the case of the plaintiff that one Laxmappa was the propositus, He had three children, namely, Siddappa, Ashappa and Uddappa (defendant No.1). Balawwa was the wife of Uddappa. Udappa had five children, namely, Ittappa (defendant No.2), Laxmann (defendant No.3), Ashok, Rajashree (the plaintiff), and Basappa (defendant No.4). It is stated that suit schedule properties were originally owned and possessed by the original propositus Laxmappa, and after his death, the name of Siddappa was mutated in the record of rights regarding Sy.No.110 and 527. Thereafter, the name of Rukmawwa, who is the daughter of Siddappa was entered in the record of rights. It is contended that there was a partition between Rukmawwa and defendant No.1-Uddappa - 4 - HC-KAR NC: 2025:KHC-D:11658 RFA No. 100417 of 2018 regarding the family properties. In the said partition, Sy.Nos.110 and 527 fell to the share of defendant No.1. Thereafter, defendant No.1 purchased Sy.Nos.42 and 43 measuring 2 acres 21 guntas, out of the income derived from the above said ancestral properties. Thus, the suit schedule properties are the ancestral joint family properties of the plaintiff and the defendants. The plaintiff and the defendants are the members of a Hindu undivided joint family, and no partition is effected between them. The plaintiff demanded a partition and the separate possession, but the defendants refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for a partition and separate possession. Accordingly, prays to decree the suit. 5. Defendant No.1 filed a written statement. Defendant Nos.2 to 4 filed a memo adopting the written statement filed by defendant No.1. Defendant No.1 denied the entire averments made in the plaint. Defendant No.1 admitted that the original propositus Laxmappa died leaving - 5 - HC-KAR NC: 2025:KHC-D:11658 RFA No. 100417 of 2018 behind his three children, i.e., Siddappa, Ashappa and Uddappa. It is also stated that the plaintiff and defendant Nos.2 to 4 are the children of Uddappa (Defendant No. 1). It is contended that the suit schedule properties are the self-acquired properties of Defendant No. 1, and the plaintiff has no right to claim a share in the suit schedule properties. Hence, prays to dismiss the suit. 6. The trial Court, based on the pleadings of the parties, framed the following issues: 1) Whether the plaintiff proves that the item Nos.2 and 3 of suit properties are ancestral family properties of the joint family comprising of herself and the defendants? 2) Whether the plaintiff proves that the item Nos.1 and 4 of suit properties are purchased by the defendant No.1 out of the joint family nucleus? 3) Whether the plaintiff is entitled for the relief of partition as prayed? 4) What order or decree? - 6 - HC-KAR NC: 2025:KHC-D:11658 RFA No. 100417 of 2018 7. To substantiate her case, the plaintiff examined herself as P.W.1, and marked 7 documents as Exs.P1 to P7. Conversely, Defendant No.2 was examined as D.W.1, one witness was examined as D.W.2, and marked 7 documents as Exs.D1 to D7. 8. The trial court, after recording the evidence, hearing both sides, and on assessing the verbal and the documentary evidence, answered issue Nos.1 to 3 in the negative, and issue No.4, as per the final order. The suit of the plaintiff was dismissed vide judgment dated 13.06.2018. The plaintiff, aggrieved by the dismissal of the suit in O.S.No.458/2014, filed this Regular First Appeal. 9. Heard the arguments of the learned counsel for the plaintiff, and the learned counsel for the defendants. 10. Learned counsel for the plaintiff submits that the trial court committed an error in dismissing the suit of the plaintiff, only based on the judgment rendered by the Hon9ble Apex Court in the case of UTTAM VS SOUBHAG SINGH - 7 - HC-KAR NC: 2025:KHC-D:11658 RFA No. 100417 of 2018 AND OTHERS reported in AIR 2016 SC 1169. She submits that in view of death of defendant No.1, the plaintiff and defendant Nos.2 to 4 succeeds to the suit schedule properties left behind by defendant No.1. He died during the pendency of this instant appeal. She submits that the court can mould the relief under Order 7 Rule 7 of the CPC. She also submits that this court can take a judicial note of subsequent developments. Hence, on these grounds she prays to allow the appeal, set aside the judgment and the preliminary decree passed by the trial court, and remit the matter to the trial court with a direction to pass a fresh decree. 11. Per contra, the learned counsel for the defendants do not dispute regarding death of defendant No.1. Admittedly, as of the date of death of defendant No.1, he possessed the properties. He died intestate. As per Section 8 of the Hindu Succession Act, 1956, the plaintiff and defendant Nos.2 to 4 are entitled to a share in the properties held by defendant No.1. He submits that, he has - 8 - HC-KAR NC: 2025:KHC-D:11658 RFA No. 100417 of 2018 no objection to remit the matter to the trial court with a direction to decide the instant case, and to allot a share as per Section 8 of the Hindu Succession Act, 1956. Hence, he prays to dispose of the appeal. 12. Learned counsel for respondent No.5 (impleading applicant) submits that, in case, this court remits the matter to the trial court, respondent No.5 (impleading applicant) may be permitted to be brought on record and contest the suit. 13. Perused the records, and considered the submissions of the learned counsel for the parties. 14. The points that would arise for consideration are; 1) Whether the plaintiff proves that the judgment and preliminary decree passed by the trial court is perverse and arbitrary? 2) Whether the plaintiff proves that in view of death of defendant No.1, the plaintiff and defendant Nos.2 to 4 succeeds to the estate of defendant No.1? 3) What order or decree? - 9 - HC-KAR NC: 2025:KHC-D:11658 RFA No. 100417 of 2018 Point No.1 and 2. 15. Since, Point Nos.1 and 2 are interlinked with each other, they are taken together for a discussion, to avoid the repetition of the facts. 16. There is no dispute regarding the relationship between the parties to the suit. It is the case of the plaintiff that the suit schedule properties are the ancestral joint family properties of the plaintiff and the defendants, the plaintiff and defendants are the members of a Hindu undivided joint family, and no partition is effected between the plaintiff and the defendants. The plaintiff, to substantiate her case, examined herself as P.W.1 and marked 7 documents as Exs.P1 to P7. 17. In rebuttal, the defendants have taken a specific contention in the written statement that the suit properties are the self-acquired properties of defendant No.1. There is no jointness between the plaintiff and the defendants regarding the suit properties. To prove their contention, - 10 - HC-KAR NC: 2025:KHC-D:11658 RFA No. 100417 of 2018 Defendant No. 2 was examined as DW-1, one witness was examined as DW-2, and 7 documents were marked as EX.D-1 o D-7. 18. During the lifetime of defendant No.1, neither the plaintiff, nor defendant Nos.2 to 4 can claim their share in the properties acquired by defendant No.1. Admittedly, a partition was effected between defendant No.1 and the daughter of Siddappa, and in the said partition, the suit schedule properties fell to the share of defendant No.1. Admittedly, defendant No.1 died intestate leaving behind the plaintiff and defendant Nos.2 to 4. After the death of defendant No.1, the plaintiff and defendant Nos.2 to 4 succeeds to the estate of defendant No.1. Defendant No.1 died during the pendency of this appeal. In view of the subsequent developments, this court can take a judicial note of the death of defendant No.1. In view of death of defendant No.1, instead of relegating the plaintiff to file fresh suit for a partition and the separate possession, this - 11 - HC-KAR NC: 2025:KHC-D:11658 RFA No. 100417 of 2018 court is of the opinion that the matter be remitted to the trial court. 19. Learned counsel for respondent No.5 (impleading applicant) submits that the properties fell to the share of impleading applicant9s branch are also included in the suit schedule properties. In view of the submission made by the learned counsel for respondent No.5 (impleading applicant), it appears that respondent No.5 is a necessary and proper party. If the properties fell to the share of respondent No.5- impleading applicant9s branch are also included in the suit schedule properties, the same requires reconsideration by the trial court. In view of death of defendant No.1, the matter requires reconsideration by the trial court. The trial court committed an error in dismissing the suit of the plaintiff, only placing reliance on the judgment of the Hon9ble Apex Court in the case of UTTAM REFERRED (SUPRA). In view of the above discussion, I answer point Nos.1 and 2 in the affirmative. - 12 - HC-KAR NC: 2025:KHC-D:11658 RFA No. 100417 of 2018 Point No.3. 20. In view of the above discussion, I proceed to pass the following order; ORDER i) The Regular First Appeal is allowed. ii) The judgment and the preliminary decree dated 13.06.2018 passed in O.S.No.458/2014 by the learned I Additional Senior Civil Judge, Gokak, is hereby set aside. iii) The suit of the plaintiff is restored to its original file. iv) The matter is remitted to the trial court. The trial court is directed to dispose of the suit afresh, in accordance with law. v) The Liberty is reserved to respondent No.5 (impleading applicant herein) to file necessary application for impleading. If such an application is filed, the trial court is directed to consider the same in accordance with law, and pass an appropriate order. - 13 - HC-KAR NC: 2025:KHC-D:11658 RFA No. 100417 of 2018 vi) All contentions of the parties are kept open. vii) The parties are directed to appear before the trial court on 29.10.2025 without waiting any further notice. viii) The Office is directed to transmit the TCR, if any, to the trial court, forthwith. ix) Learned counsel for respondent No.5 (impleading applicant herein) is permitted to withdraw I.A.No.1/2023 with a liberty to file the same before the trial court. x) In view of the dismissal of the appeal, pending IA9s, if any, do not survive for consideration and are accordingly, disposed of. Sd/- (ASHOK S. KINAGI) JUDGE MBS CT:ANB List No.: 1 Sl No.: 10