- 1 - HC-KAR NC: 2025:KHC-D:8784 RSA No. 5009 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 15TH DAY OF JULY 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.5009 OF 2012 (PAR) BETWEEN: CHANDRASHEKAR S/O. VEERAPPA @ IRAPPA KANYAL MUDIYAPPANAVA, AGE: 61 YEARS, OCC: AGRICULTURE, R/O: ASUNDI, TQ AND DIST: GADAG – 582 101. …APPELLANT (BY SMT. PADAMAJA TADAPATRI, ADVOCATE FOR SRI. K. L. PATIL, ADVOCATE) AND: 1. ASHWINI @ AKKAMANADEVI W/O. SUBHASHCHANDRA GALAPPANAVAR, AGE: 39 YEARS, OCC: HOUSEHOLD, R/O: ASUNDI, TQ AND DIST: GADAG – 582 101. 2. SMT. TIPPAVVA W/O. SOMAPPA KALLIMANI, AGE: 54 YEARS, OCC: HOUSEHOLD, R/O: HULGERI BANA LAXMESHWAR, TQ: SHIRAHATTI, DIST: GADAG – 582 101. 3. SMT. GIRIJAWWA W/O. KALAKAPPA KATTI, AGE: 52 YEARS, OCC: HOUSEHOLD, R/O: DANDAPUR STREET NARAGUND, TQ: NARAGUND, DIST: GADAG – 582 101. Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8784 RSA No. 5009 of 2012 4. MALLIKARJUN S/O. VEERAPPA @ IRAPPA KANYAL MUDIYAPPANAVAR, AGE: 48 YEARS, OCC: AGRICULTURE, R/O: ASUNDI, TQ AND DIST: GADAG – 582 101. 5. PREMAKKA D/O. VEERAPPA @ IRAPPA MUDIYAPPANAVAR, AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O. ASUNDI, TQ AND DIST: GADAG – 582 101. …RESPONDENTS (BY SMT. YALAGI KAVYA SHIVAPPA, ADVOCATE FOR SRI. H. N. GULARADDI, ADVOCATE FOR R1 TO R5) THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 21.10.2011 PASSED BY THE DISTRICT AND SESSIONS JUDGE, GADAG IN R.A.NO.104/2010 AND CONSEQUENTLY SET ASIDE THE JUDGMENT IN O.S.NO.174/2007 DATED 01.12.2010 PASSED BY ADDITIONAL CIVIL JUDGE (SR. DN) GADAG AND DISMISS THE SUIT OF THE PLAINTIFF/RESPONDENT NO.1 INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:8784 RSA No. 5009 of 2012 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This appeal is filed by defendant No.5, being aggrieved by the judgment and decree dated 1st December 2010 passed in O.S. No.174 of 2007 by the Addl. Senior Civil Jduge, Gadag (for short “the trial Court”), whereby the suit of the plaintiff was decreed, declaring that the plaintiff is entitled to 1/6th share in the suit schedule properties by way of partition and separate possession, which is confirmed by the judgment and order dated 21st October 2011 by the District and Session Judge, Gadag (for short “the First Appellate Court”) 2. The above suit was filed by the plaintiff / respondent No.1 herein for partition and separate possession, contending, inter alia, that one Veerappa had two sons and four daughters, namely: Ashwini (plaintiff), Tippavva (defendant No.1), Girijavva (defendant No.2), Mallikarjun (defendant No.3), Premakka (defendant No.4) and Chandrashekhar (defendant No.5). The suit properties - 4 - HC-KAR NC: 2025:KHC-D:8784 RSA No. 5009 of 2012 originally belonged to one Adivevva Mudiyappanavar, who had adopted the aforesaid Veerappa, the father of the plaintiff and defendants. By virtue of the said adoption, Veerappa, the father of the plaintiff and defendants herein succeeded to the said properties upon the demise of Adivevva Mudiyappanavar. It is contended that there was no partition of these properties during the life time of Veerappa. The plaintiff had requested the defendants to effect partition, which was declined, thereby compelling the plaintiff to file the present suit for partition and separate possession. 3. In response, defendant Nos.1 to 4 though appeared did not file any written statement. Defendant No.5 filed a written statement admitting the relationship amongst the parties and further admitting that the suit schedule properties originally belonged to the adoptive mother of Veerappa, Adivevva Mudiyappanavar. It was denied, however, that the suit schedule properties were the self-acquired properties of their father. It was contended - 5 - HC-KAR NC: 2025:KHC-D:8784 RSA No. 5009 of 2012 that the suit schedule properties are the joint family properties of the plaintiff and the defendants, devolved upon their father through adoptive family. 4. It was further contended that there was a partition between defendant No.3 and defendant No.5 in the year 1999, which was effected with the consent and concurrence of all the sisters. In the said partition, defendant No.4, who then was unmarried and physically challenged, was allotted three acres of land. The other sisters, including the plaintiff, were given Rs.50,000/- each in cash and one thola of gold each in lieu of their shares in the suit schedule properties. It was also contended that defendant No.3 had instigated the plaintiff to file the present suit. 5. Defendant No.5 further contended that, in exercise of his ownership, he had leased out an extent of 60 x 50 feet to GTL Company, which had agreed to pay rent of ₹25,000/- per month and employment to his son with salary of Rs.2,500/- per month. It was alleged that - 6 - HC-KAR NC: 2025:KHC-D:8784 RSA No. 5009 of 2012 defendant No.3, with an intent to harass defendant No.5, had instigated the plaintiffs to file the present suit, despite there being no cause of action. Accordingly, defendant No.5 prayed for dismissal of the suit. 6. The trial Court framed the following issues for its consideration: “1. Whether plaintiff proves properties are the joint family properties in between herself and defendants? 2. Whether plaintiff proves that the defendant right to No.5 has no right to permit the Spice Communication Private Ltd., G.T.L. Co., to install the tower station at X as shown in her hand sketch map? 3. Whether defendant No.5 prove that there was partition in between him and defendant No.3 in the year 1999 and they are making separate vahivat and enjoyment of their share as per partition? 4) Whether defendant No.5 proves that he has right to leas 60'X50' to GTL Co., for erecting tower? 5) Whether plaintiff proves that defendant No. 5 behind back of her and other defendants try to lease to G.T.L. Co., for erecting tower? 6) Whether defendant No.5 proves that there is no cause of action to file the suit? - 7 - HC-KAR NC: 2025:KHC-D:8784 RSA No. 5009 of 2012 7) Whether plaintiff is entitled to 1/6th share? 8) What order or decree?” 7. On recording the evidence, the trial Court answered issue Nos.1, 2 and 7 in the affirmative and issue Nos.3, 4 and 6 in the negative. Consequently, decreed the suit as prayed for. 8. Aggrieved by the judgment and decree of the trial Court, defendant No.5 preferred an appeal in R.A. No.104 of 2010. 9. The First Appellate Court framed the following points for its consideration: “1) Whether Trial Court is justified in holding that that the plaintiff proved that the suit properties are the joint family properties in between herself and defendants? 2) Whether the Trial Court is justified in holding that the plaintiff proved that the defendant No.5 has no right to permit the Spice Communication Private Ltd., G.T.L. Co., to install the tower station at X as shown in her hand sketch map? 3) Whether the Trial Court justified in holding that the defendant No.5 failed to prove that there was partition in between him and defendant - 8 - HC-KAR NC: 2025:KHC-D:8784 RSA No. 5009 of 2012 No.3 in the year 1999 and they are making separate vahivat and enjoyment of their share as per partition? 4) Whether the Trial Court justified in holding that the defendant No.5 failed to prove that he has right to leas 60'X 50' to G.T.L Co., for erecting tower? 5) Whether the Trial Court is justified in holding that the defendant No.5 failed to prove that there is no cause of action to file the suit? 6) What order or decree?” 10. On re-appreciation of the evidence, the First Appellate Court answered point Nos.1 to 5 in the affirmative and consequently dismissed the appeal. 11. Being aggrieved by the judgment and decree of the First Appellate Court, defendant No.5 is before this Court in this Regular Second Appeal. 12. This Court by order dated 29.05.2019 admitted this appeal to consider the following substantial question of law, which reads as under: "Whether both the Courts below are justified in holding that the amended provisions of Hindu Succession Act 2005 are applicable to the present - 9 - HC-KAR NC: 2025:KHC-D:8784 RSA No. 5009 of 2012 case, thereby awarding 1/6th share to the plaintiff in the suit schedule properties?" 13. Learned counsel appearing for the appellant, reiterating the grounds urged in the memorandum of appeal, submitted that though defendant No.5 was able to prove and establish the earlier partition, the trial Court and the First Tribal Court erred in declining to accept the same and further erred in allotting an equal share to the plaintiff. 14. It is contended that the trial Court and the First Appellate Court, despite the existence of an earlier partition, erred in holding that properties were joint family properties under the joint cultivation of the plaintiffs and the defendants. It is contended that defendant No.4, one of the daughters / sisters, was allotted an extent of 3 acres of land, and the other daughters including the plaintiff, were given Rs.50,000/- in cash each along with one tola of gold each in lieu of their respective shares in the suit schedule properties. As such the plaintiffs and defendants having already received their shares are thus precluded from filing the suit for partition. Therefore, it is contended that the trial - 10 - HC-KAR NC: 2025:KHC-D:8784 RSA No. 5009 of 2012 Court and the First Appellate Court were not justified in granting and allotting a 1/6th share to the plaintiff in the suit schedule properties. Accordingly, learned counsel seeks that the substantial question of law be answered in the negative and the appeal be allowed. 15. Counsel for the respondent/plaintiff and other defendants justifying the judgment and decree passed by the Trial Court submits that defendant No.5 has failed to prove and bring on record any material with regard to the prior partition and that the properties which originally belong to Adivevva Mudiyappanavar, the adoptive mother of Veerappa (father of plaintiff and the defendants) cannot be made subject matter of the partition even if there was one. Inasmuch as the said properties will have to be considered as absolute properties of Veerappa and upon his demise, in terms of Section 8 of the Hindu Succession Act, the plaintiff and the defendants being his children would be entitled for equal share. Hence, she submits that no error can be found with the judgment and decree passed by the - 11 - HC-KAR NC: 2025:KHC-D:8784 RSA No. 5009 of 2012 Trial Court confirmed by the First Appellate Court. Hence, submits no substantial question of law would arise for consideration and appeal be dismissed. 16. Heard. Perused the records. 17. The parties being the children of one Veerappa and they being sisters and brothers of each other is not in dispute. It is also not in dispute that suit schedule properties were acquired by Veerappa by virtue of he having been adopted by one Adivevva Mudiyappanavar, who was admittedly the owner of the suit schedule properties. Since the properties have come from the adoptive mother of Veerappa, as rightly taken note of by the Trial Court and the First Appellate Court, the same cannot be construed as ancestral joint family properties. Since the suit schedule properties would fall in the category of absolute and separate properties of Veerappa, upon his demise provisions of Section 8 of the Hindu Succession Act would apply and the plaintiff and defendants No.1, 2, 3, 4 - 12 - HC-KAR NC: 2025:KHC-D:8784 RSA No. 5009 of 2012 and 5 being his children would be entitled for equal share in the suit schedule properties. 18. As rightly pointed out by the learned counsel for respondents even if there was a partition effected between defendant No.3 and defendant No.5, the same cannot be construed to have taken away the vested and pre-existing right of the plaintiff, defendants No.1, 2 and 4. Further though a plea is raised with regard to plaintiff and defendants No.1, 2 and 4 having been paid and given 1 tola of gold in lieu of their share in the properties, no acceptable and satisfactory material evidence is brought on record to prove the relinquishment of their right, title and interest over their definite share in the suit properties, in the manner known to law. 19. In the light of the aforesaid factual and legal aspects of the matter, the Trial Court and the First Appellate Court in the considered view of this Court, have committed no error in granting 1/6th share to the plaintiff in - 13 - HC-KAR NC: 2025:KHC-D:8784 RSA No. 5009 of 2012 the suit schedule properties holding the same to be the properties belonging to Veerappa. 20. The substantial question of law is answered accordingly. 21. Hence, the following: ORDER i. Appeal is dismissed. ii. Judgment and decree dated 1st December 2010 passed in O.S. No.174 of 2007 by the Addl. Senior Civil Jduge, Gadag and the judgment and decree dated 21st October 2011 passed in R.A. No.104/2010 by the District and Session Judge, Gadag are confirmed. Sd/- (M.G.S. KAMAL) JUDGE VNP,SH CT-ASC List No.: 1 Sl No.: 12