- 1 - HC-KAR NC: 2025:KHC:50402 RSA No. 01 of 2010 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR SECOND APPEAL NO.01 OF 2010 (PAR) BETWEEN: SMT. LINGARAJAMMA @ RATHNAMMA SINCE DECEASED BY HER LR, 1(A) SRI.L.K. NAGENDRA SHETTY, S/O KRISHNAIAH SHETTY, AGED 78 YEARS, DOCTOR BY PROFESSION, R/O BHARATHI STREET, SRINGERI, CHIKAMAGALUR DISTRICT - 577 139. &APPELLANT (BY SRI. SUNIL S RAO, ADVOCATE FOR SRI. T. SESHAGIRI RAO., ADVOCATE) AND: 1. BHIMARAYA SHETTY S/O LATE C. VENKATACHALA SHETTY DEAD BY L'RS. 1(A) SMT. SAVITRAMMA W/O LATE C.V.BHJIMARAYA SHETTY AGED ABOUT 89 YEARS, RESIDING AT BY THE SIDE OF LAKSHMI TIFFIN ROOM, CHIKAPET, CHITRADURGA- 577 501. 1(B) SMT. LAXMIKANTHA W/O LATE LAKSHMINARAYANA SHETTY, AGED 69 YEARS, Digitally signed by KORLAHALLI BHARATHIDEVIKRISHNACHARYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:50402 RSA No. 01 of 2010 R/A LAKSHMI ENTERPRISES, MAIN ROAD, KOLLEGALA - 571 440. (C) DR. C.B. SUBBARAYA SHETTY S/O C.V. BHIMARAYA SHETTY, AGED 67 YEARS, R/A NEAR OLD LAKSHMI BHAVAN TIFFIN ROOMS, CHICKPET, CHITRADURGA - 577 501. (D) SRI. C.B.MOHANKUMAR S/O LATE C.V. BHIMARAYA SHETTY, AGED 65 YEARS, R/A NEAR OLD LAKSHMI BHAVAN TIFFIN ROOMS,CHICKPET, CHITRADURGA - 577 501. (E) SMT. E. NAGARATHANAMMA D/O LATE C.V. BHIMARAYA SHETTY, LECTURER IN GOVT. JUNIOR COLLEGE FOR BOYS, CHITRADURGA- 577 501. (F) SRI. C.B. SETHURAM S/O LATE BHIMARAYA SHETTY, AGED ABOUT 57 YEARS, R/A NEAR .OLD LAKSHMI BHAVAN TIFFIN ROOMS, CHICKPET, CHITRADURGA - 577 501. (G) SRI C.B. CHANDRASHEKAR S/O LATE C.V. BHIMARAYA SHETTY, AGED ABOUT 55 YEARS, R/A NEAR OLD LAKSHMI BHAVAN TIFFIN ROOMS, CHICKPET, CHITRADURGA - 577 501. (H) SRI. C.B. SURESH BABU S/O LATE BHIMARAYA SHETTY, - 3 - HC-KAR NC: 2025:KHC:50402 RSA No. 01 of 2010 AGED ABOUT 54 YEARS, R/A NEAR OLD LAKSHMI BHAVAN TIFFIN ROOMS, CHICKPET, CHITRADURGA - 577 501. (I) SMT. C.B.SARASWATHI D/O LATE C.V.BHIMARAYA SHETTY, AGED ABOUT 52 YEARS, LECTURER, KARNATAKA GOVT., DISTRICT EDUCATION AND TRAINING CENTRE, B.H. ROAD, SHIMOGA- 577 201. (J) SMT. LEELAVATHI D/O LATE C.V. BHIMARAYA SHETTY, AGED ABOUT 52 YEARS, R/A NEAR OLD LAKSHMI BHAVAN TIFFIN ROOMS,CHICKPET, CHITRADURGA - 577 501. 2. SRI. ANANDA KRISHNA SHETTY S/O C.VENKATACHALA SHETTY, SINCE DECEASED BY LR'S. (A) SRI. C.A. RAMESH S/O LATE C. ANANDA KRISHNA SHETTY, AGED 56 YEARS, PROPRIETOR, BAJAJ MEDICALS, R/O OTC ROAD, NEAR PALLAVI CHATS, BANGALORE- 560 002. (B) SRI C.A. SATHISH S/O LATE C. ANANDA KRISHNA SHETTY, AGED ABOUT 48 YEARS VISION TECH, DTP CENTRE, NEAR BOSCO COMPLEX, GANDHIBAZAR, BANGALORE- 560 004. - 4 - HC-KAR NC: 2025:KHC:50402 RSA No. 01 of 2010 3. SRI. C. DASHARATHARAMA SHETTY, S/O LATE C. VENKATACHALA SHETTY, AGED 76 YEARS, PROP. BALAJI BANGLE STORES, 2ND MAIN, VIDRAYANAPURAM, MYSORE- 570 001. 4. SRI C.V. DHRUVAKURA SHETTY, S/O LATE C.VENKATACHALA SHETTY, SINCE DECEASED BY LR'S. (A) SMT. THREJAVATHAMMA W/O LATE C.V. DHRUVAKUMARA SHETTY, SINCE DECEASED BY HER LRS, RESPONDENT NO.4(B) AND (C) HEREIN. (B) SRI C.D. VISWANATHA BABU, S/O LATE DHRUVAKUMAR SHETTY, AGED 47 YEARS, R/O BALAJI STORES,NEW STALL, NO.7, BUS STAND, TIPTUR, TUMKUR DISTRICT - 572 201. (C) SRI C.D VENKATESH S/O LATE DHRUVAKUMARA SHETTY, AGED 44 YEARS, R/O BALAJI STORES, NEW STALL, NO.7, BUS STAND, TIPTUR, TUMKUR DISTRICT - 572 201. 5. SRI C. RADHAKRISHNA SHETTY, S/O LATE C. VENKATACHALA SHETTY AGED 68 YEARS, C/O H.N RAMA SHETTY, 2ND MAIN ROAD, VINOBHANAGAR, DAVANAGERE - 577 002. - 5 - HC-KAR NC: 2025:KHC:50402 RSA No. 01 of 2010 6. SMT. K. SUDHAMANI D/O ANNAPURNAMMA, AGED 41 YEARS, R/O ASAR MOHALLA, CHITRADURGA - 577 501. 7. SRI. DEEPAK S/O K. SUDHAMANI AGED 23 YEARS R/O ASAR MOHALLA, CHITRADURGA - 577 501. 8. SRI. PAVAN KUMAR S/O SMT. K. SUDHAMANI AGED 21 YEARS R/O ASAR MOHALLA, CHITRADURGA - 577 501. 9. SRI. RAVI KUMAR S/O SMT. K. SUDHAMANI AGED 26 YEARS R/O ASAR MOHALLA, CHITRADURGA - 577 501. &RESPONDENTS (BY SRI. C.N. SATYANARAYANA SHASTRI, ADVOCATE FOR R-1(C) (CP NO.685/09), AND ALSO FOR R-1 (D TO J), SRI. NAGARAJAPPA S.H., ADVOCATE FOR R-6 TO R-9, R-1(A), R-1(B), R-2(A) AND R-4(B) ARE SERVED, VIDE ORDER DATED 24.05.2021, NOTICE TO R-3 AND R-5 ARE HELD SUFFICIENT, VIDE ORDER DATED 18.08.2021, R-4 (B AND C) ARE TREATED AS LRS OF R-4 (A)) THIS RSA IS FILED UNDER SEC. 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.10.2009 PASSED IN R.A.NO.56/2007 AND 57/2007 ON THE FILE OF THE ADDL. DISTRICT & SESSIONS JUDGE, CHITRADURGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 11.9.2007 PASSED IN O.S.NO.7/1995 ON THE FILE OF THE C/C I ADDL. CIVIL JUDGE (SR.DN) CHITRADURGA. - 6 - HC-KAR NC: 2025:KHC:50402 RSA No. 01 of 2010 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT This appeal was filed by the plaintiff (since deceased), in O.S.No.7/1995 on the file of I Addl.Civil Judge (Sr.Dn), Chitradurga, (for short 'trial Court'), against the judgment and decree dated 14.10.2009, passed by learned Addl.District and Sessions Judge, Chitradurga, (for short 'First Appellate Court'), in RA.Nos.56/2007 and 57/2007. 2. The parties are referred to as per their ranking before the trial Court. 3. The brief facts of the case are that plaintiff/appellant filed a suit in O.S.No.7/1995 for the relief of partition and separate possession of joint family properties. According to plaint averments one C.Shetty Subbarayappa was the propositor of the family. He had two sons by name Venkatachala Shetty and Thimmaraya Shetty. The deceased plaintiff was daughter of - 7 - HC-KAR NC: 2025:KHC:50402 RSA No. 01 of 2010 Thimmaraya Shetty. Defendant Nos.1 to 7 are sons of Venkatachala Shetty. C.Shetty Subbarayappa, Thimmaraya Shetty and Venkatachala Shetty are no more. Plaintiff was married to one Krishnaiah Shetty of Sringeri. After her marriage, she was residing in her husband's house at Sringeri. The mother of the plaintiff by name Kamalamma, was also residing in Sringeri in the house of plaintiff. Husband of plaintiff died during the year 1984. Kamalamma died during the year 1985. Venkatachala Shetty died during the year 1972. 4. C.Shetty Subbarayappa was a businessman. The family of plaintiff was a business family. Defendant Nos.1 to 7 continued the business under the name and style `Shetty Subbarayappa & Sons'. From the income derived from the family business, suit properties were purchased. Therefore, they are joint family properties. During the year 1995, plaintiff sought for accounts of the business with defendant Nos.1 to 7. They refused to give the accounts. Earlier, she had also demanded for effecting - 8 - HC-KAR NC: 2025:KHC:50402 RSA No. 01 of 2010 partition and the defendants refused to give her half share in the suit property. Plaintiff had issued a notice dated 11.02.1994. Defendant Nos.1 to 7 replied to the notice, but, they refused to effect partition. On the contrary, defendant Nos.2 to 7 executed a registered Sale Deed dated 22.04.1994 in favour of defendant Nos.8 to 11. In view of the same, plaintiff was constrained to file the suit. With these reasons, she prayed for partition and separate possession of her half share in the property. 5. Defendant Nos.1 to 7 admitted the genealogy of the family. They disputed all other facts pleaded in the plaint. They have contended that their father late Venkatachala Shetty started the partnership business in the name and style `C.Shetty Subbarayappa & Sons', from the year 1961. They carried the said business in Chitradurga city and it was a wholesale business. The father of the plaintiff died during the year 1918. Shetty C. Subbarayappa or his son Thimmaraya Shetty were not running any business. It was established by Venkatachala - 9 - HC-KAR NC: 2025:KHC:50402 RSA No. 01 of 2010 Shetty during the year 1961 and they continued the business till 1969 and it was not a joint family business. 6. It is also contended that, father of defendant Nos.1 to 7 i.e., Venkatachala Shetty got a house property in the partition held between C.Subbarayappa Shetty and his two sons. During the year 1925, Venkatachala Shetty purchased house site and constructed a house building in the said property. The said properties were divided under the registered Partition Deed dated 25.03.1991. Defendant Nos.2 to 7 sold the house property under registered Sale Deed dated 22.04.1994 to defendant Nos.8 to 11. Plaintiff never participated in any of the business transactions. Plaintiff has no right or interest over the suit property. The suit for partition is not tenable and prayed to dismiss the suit. 7. From the rival contentions of the parties, trial Court framed following issues : - 10 - HC-KAR NC: 2025:KHC:50402 RSA No. 01 of 2010 "i. Does plaintiff proves that suit schedule properties are ancestral and joint family properties of himself and defendants? ii. Does defendant Nos.2 to 7 prove that suit schedule properties are divided during partition in the year 1991? iii. Whether defendants 8 to 11 prove that they are bona fide purchasers? iv. Whether plaintiff is entitle for 1/2 share as pleaded? v. What order or decree?" Additional Issue No.1 " Whether defendants 1 to 7 have proved that there was a partition between Late Thimmaraya Shetty and Late Venkatachala Shetty?" 8. The trial Court recorded the evidence of both the side. 9. The plaintiff examined three witnesses as PWs-1 to 3 and marked the documents as per Exs.P-1 to P-24. The defendants examined DWs-1 to 5 and marked documents as per Exs.D-1 to D-9. - 11 - HC-KAR NC: 2025:KHC:50402 RSA No. 01 of 2010 10. The trial Court after hearing the parties and appreciating the pleadings and evidence on record, answered issue Nos.1 and 4 in the affirmative, additional issue Nos.1 and 3 in the negative, and held that issue No.2 does not survive for consideration and it was an unnecessary issue. By the judgment and decree dated 11.09.2007, decreed the suit granting 1/2 share of the suit property in favour of the plaintiff. 11. Being aggrieved by the judgment and decree dated 11.09.2007, passed in O.S.No.7/1995, defendant Nos.1 to 7 filed R.A.No.56/2007 and defendant Nos.8 to 11 preferred R.A.No.57/2007. Both the appeals were clubbed together. The learned District Judge heard the arguments of both sides. 12. While dictating the judgment, the learned first Appellate Judge framed the following points for determination : 1) Whether the judgment and decree passed by the trial court in O.S.7/1995 dtd. 11-9-2007 is - 12 - HC-KAR NC: 2025:KHC:50402 RSA No. 01 of 2010 perverse capricious, liable to be interfered by this court? 13. On re-appreciation of the oral and documentary evidence on record, the first Appellate Judge reversed the judgment passed by the trial Court in O.S.No.7/1995, dated 11.09.2007 and held that the suit properties are self-acquired properties of late Venkatachala Shetty. Being aggrieved by the said judgment and decree, plaintiff has preferred the present appeal. 14. On 07.01.2011, this Court admitted the appeal to consider the following substantial question of law : 1) Whether the lower Appellate Court was right in reversing the judgment and decree passed by the trial Court, in the absence of tenable grounds in doing so, when it is, apparent on the face of it that the evidence both oral and documentary conclusively established the claim of the appellant/plaintiff for partition and separate possession of her father's share, as a coparcener of the joint family? 2) Whether the lower Appellate Court was right in discarding the evidence of the power of attorney of the only son of the appellant/plaintiff on the ground - 13 - HC-KAR NC: 2025:KHC:50402 RSA No. 01 of 2010 that the appellant/plaintiff did not step into the box to tender evidence? 15. Heard the arguments of learned counsel for the appellant and learned counsel appearing for respondent Nos.R-1(c) and (d) to (j) and the learned counsel for respondent Nos.6 to 9. 16. The relationship between the parties and genealogy tree of the family are not in dispute. 17. The pleading of the plaintiff is very cryptic. It does not disclose when Sri C.Subbaraya Shetty started the business and what was the nature of the business, how much income he was earning from the business etc., are not at all pleaded and no evidence was led to consider the said facts. It is an assertive contention of the plaintiff that both the suit schedule properties are acquired by Venkatachala Shetty from the joint family income. The documents produced by the plaintiff do not corroborate the said contention. During the cross-examination of - 14 - HC-KAR NC: 2025:KHC:50402 RSA No. 01 of 2010 defendants and their witnesses by the plaintiff, nothing was brought out to believe the contention of the plaintiff. Late Venkatachala Shetty was said to have construed a house in the suit property and in the year 1935, he purchased adjacent property. In the cross-examination of the said witnesses, it was not brought out about source of income to purchase the property was from joint family business. Therefore, absolutely there is no sufficient pleading and evidence to believe the story of the plaintiff. 18. Plaintiff did not enter the witness box but she had examined her power of attorney holder. Admittedly, power of attorney holder was not well-conversant with the facts of the alleged family business. Hence, his evidence was not helpful to prove the contentions of the plaintiff. 19. The trial Court mainly decreed the suit on the basis of alleged admission of the defendant witnesses that defendant Nos.1 to 7 and deceased Venkatachala Shetty had taken care of the plaintiff and performed her - 15 - HC-KAR NC: 2025:KHC:50402 RSA No. 01 of 2010 marriage. It also relied on the letter correspondences between plaintiff and late Venkatachala Shetty and on that basis, held that suit properties are joint family properties. The first Appellate Court, upon re-appreciation of the materials available on record, rightly held that the correspondences or the evidence of the defendants9 witnesses showing that they had spent money for the marriage of the plaintiff cannot be a ground to decree the suit. Therefore, the findings of the learned trial Judge that on the basis of evidence of witnesses of the defendants, it was proved that suit properties are joint family properties, is highly erroneous. 20. The burden to prove a fact lies on a person who asserts that such facts exists. In this case, heavy burden is on the plaintiff to plead and prove. A pleading, as well as evidence led by the plaintiff are highly insufficient to consider the contentions of the plaintiff. Considering the same, the first Appellate Judge rightly interfered in the findings of the trial Court. When the plaintiff is unable to - 16 - HC-KAR NC: 2025:KHC:50402 RSA No. 01 of 2010 prove that suit properties are joint family properties, question of allotting a share in the alleged joint family properties does not arise. The first Appellate Judge after re-appreciating the materials, rightly held that suit properties were belonging to defendant Nos.3 to 6. I do not find any reasons to interfere in the well-reasoned order of first Appellate Court. Accordingly, the substantial questions are answered against the plaintiff and I proceed to pass the following order : ORDER (i) The appeal is dismissed. Both parties shall bear their own cost. (ii) The impugned judgment and decree dated 14th October 2009, passed in R.A.No.56/2007 and R.A.No.57/2007, by the Addl.District and Sessions Judge, Chitradurga, setting aside the judgment and decree dated 11th September 2007, passed in O.S.No.7/1995, - 17 - HC-KAR NC: 2025:KHC:50402 RSA No. 01 of 2010 by the I Addl.Civil Judge (Sr.Dn.), Chitradurga, is confirmed. (iii) In view of disposal of the appeal, the pending applications, if any, shall stand disposed of. Registry to transmit the records along with copy of this judgment to the concerned Court without delay. Sd/- (UMESH M ADIGA) JUDGE AG/bk List No.: 1 Sl No.: 22