- 1 - HC-KAR NC: 2025:KHC:38943 RSA No. 22 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 22 OF 2024 (PAR/POS) BETWEEN: 1. SMT. KANTHAMMA W/O SRI. NARAYANASWAMY D/O SRI CHINNAPPA GOWDA, AGED 46 YEARS, R/AT CHOKKARABANDE VILLAGE, KYASAMBALLI HOBLI, BANGARPET TALUK - 563 113 KOLAR DISTRICT. 2. SRI RAMACHANDRA S/O SRI CHINNAPPA GOWDA AGED 39 YEARS, R/AT CHOKKARABANDE VILLAGE, KYASAMBALLI HOBLI, BANGARPET TALUK - 563 113 KOLAR DISTRICT. 3. SMT. VARALAKSHMI W/O SRI VIJAYANDRA, AGED 36 YEARS, R/AT SAMANAHALLI VILLAGE, THOPANAPALLI PANCHAYATH, BANGARPET TALUK - 563 122 KOLAR DISTRICT. 4. SRI. RAMESH S/O SRI CHINNAPPA GOWDA Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:38943 RSA No. 22 of 2024 AGED 34 YEARS, R/AT CHOKKARABANDE VILLAGE, KYASAMBALLI HOBLI, BANGARPET TALUK - 563 113 KOLAR DISTRICT. …APPELLANTS (BY SRI. M.B. CHANDRACHOODA, ADVOCATE) AND: 1. SRI CHINNAPPA GOWDA S/O LATE MUNIYAPPA AGED 71 YEARS R/AT CHOKKARABANDE VILLAGE, KYASAMBALLI HOBLI, BANGARPET TALUK - 563 113 KOLAR DISTRICT 2. SRI. APPAIAH @ TRACTOR AYAPPA S/O LATE MUNIYAPPA AGED 51 YEARS, R/AT ULLAL UPANAGARA ULLAL POST, BENGALURU. 3. SRI. VENKATASWAMY S/O LATE MUNIYAPPA AGED 53 YEARS R/AT CHOKKARABANDE VILLAGE, KEMPAPURA POST KYASAMBALLI HOBLI, KGF TALUK - 563 113 KOLAR DISTRICT. 4. SMT. SUBBAMMA W/O LATE ABBAIAH AGED 57 YEARS R/AT CHOKKARABANDE VILLAGE, - 3 - HC-KAR NC: 2025:KHC:38943 RSA No. 22 of 2024 113, KEMPAPURA POST KYASAMBALLI HOBLI, KGF TALUK - 563 113 KOLAR DISTRICT. 5. SRI. A KRISHNE GOWDA S/O LATE ABBAIAH AGED 34 YEARS R/AT CHOKKARABANDE VILLAGE, KEMPAPURA POST KYASAMBALLI HOBLI, KGF TALUK - 563 113 KOLAR DISTRICT. 6. SMT. BULAKSHMI D/O LATE ABBAIAH AND SMT. SUBBAMMA AGED 32 YEARS R/AT CHOKKARABANDE VILLAGE, KEMPAPURA POST KYASAMBALLI HOBLI, KGF TALUK - 563 113 KOLAR DISTRICT. 7. SRI. A LAKSHMINARAYANA S/O LATE ABBAIAH AGED 29 YEARS R/AT CHOKKARABANDE VILLAGE, KEMPAPURA POST KYASAMBALLI HOBLI, KGF TALUK - 563 113 KOLAR DISTRICT. 8. SRI. A NAGARJUNA S/O LATE ABBAIAH AGED 26 YEARS R/AT CHOKKARABANDE VILLAGE, KEMPAPURA POST KYASAMBALLI HOBLI, - 4 - HC-KAR NC: 2025:KHC:38943 RSA No. 22 of 2024 KGF TALUK - 563 113 KOLAR DISTRICT. 9. SRI. A MALLIGARJUNA S/O LATE ABBAIAH AGED 24 YEARS R/AT CHOKKARABANDE VILLAGE, KEMPAPURA POST KYASAMBALLI HOBLI, KGF TALUK - 563 113 KOLAR DISTRICT. …RESPONDENTS (BY SRI. B.V. MOHAN ADEKAR, ADVOCATE FOR SRI. REVANA SIDDAIAH G.K, ADVOCATE FOR C/R2) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 4.10.2023 PASSED IN RA NO.179/2022 ON THE FILE OF SENIOR CIVIL JUDGE AND PRL. JMFC. K.G.F., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 2.09.2022 PASSED IN OS NO.104/2014 ON THE FILE OF I ADDITIONAL CIVIL JUDGE AND JMFC, K.G.F. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 5 - HC-KAR NC: 2025:KHC:38943 RSA No. 22 of 2024 CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri M.B.Chandrachooda, learned counsel for the appellants and Sri Mohan Adekar for Sri Revana Siddaiah.G.K., learned counsel for the caveator/respondent No.2. 2. Appellants are challenging the dismissal of their suit in O.S.No.104/2014, whereby their suit for partition and separate possession in respect of the following properties (hereinafter referred as 'suit properties') came to be dismissed. "1. Property bearing Sy.No.11, measuring 31 guntas includes 4 guntas Kharab, Assessed at Rs.01.50 paise. East by: Property of Sri. Errappa. West by: Property of Sri. Appaiah S/o. Muniyappa, North by: Property of Sri. Sahadevappa, South by: Sy.No.12 in possession of plaintiffs & 1st defendant. 2. Property bearing Sy.No.12, measuring 16 guntas Assessed at Rs.1.00. East by: Property of Sri. Errappa. West by: Property of Sri. Appaiah S/o. Muniyappa & thereafter wards Chinnapapamma's property. North by: SY.No.11 belonging to the plaintiffs, 1st defendant & Sri.Appaiah S/o. Muniyappa. South by: Property of Chinna Papamma. 3. Property bearing Sy.No.39/1, measuring 20 guntas, Assessed at Rs.1.00. East by: Property of Sri. Gangulareddy. West by: Government land, - 6 - HC-KAR NC: 2025:KHC:38943 RSA No. 22 of 2024 North by: Property of Sri. Venkataswamy, South by: Road. Item No.1 to 3 properties situated at Chokkarabande Village, Kyasamballi Hobli, Bangarpet Taluk." 3. Dismissal of the suit was confirmed in R.A.No.179/2022 filed by the plaintiffs. 4. Facts in the nutshell, which are utmost necessary for disposal of the present appeal, are as under: According to the plaintiffs, common prepositus is one Chinnappa, who had a wife by name Venkatamma. Couple had two sons namely Muniyappa and Muniyappa @ Muniswamy. In the branch of first son Muniyappa, Chinnappa Gowda and Venkataswamy are the two sons. Plaintiffs are the children of first son of Chinnappa namely Chinnappa Gowda, who is defendant No.1 in the suit. Muniyappa @ Muniswamy had a son by name Abbaiah and the said Abhaiah has a wife by name Subbamma and 5 children, who are defendant No.4 (a) to (f) in the trial Court. Plaintiff’s uncle namely Venkataswamy is defendant No.3 in the suit. 5. According to the plaint averments, suit properties are ancestral and joint family properties and there was no - 7 - HC-KAR NC: 2025:KHC:38943 RSA No. 22 of 2024 partition in respect of the suit properties. Therefore, plaintiffs are entitled for their share in the suit properties from the share of Chinnappa Gowda, who is the son of one branch of Chinnappa namely Muniyappa. 6. Suit on contest, came to be dismissed on the ground that when the succession opened, plaintiffs were not having any right in respect of the suit properties having regard to the age of defendant No.1 and dismissed the suit stating that during the lifetime of defendant No.1, plaintiffs would not have maintained the suit. 7. Dismissal of the suit was questioned before the First Appellate Court in R.A.No.179/2022. 8. When learned Judge in the First Appellate Court, after securing the records, heard the arguments of the parties in detail and on re-appreciation of the material evidence on record, dismissed the appeal confirming the judgment of the Trial Court inter alia holding in para Nos.32 to 36 as under: "32. Though the plaintiffs also got examined P.W.2, he is not a signatory to the sale deed or member of the family of plaintiffs and hence, his testimony is not much - 8 - HC-KAR NC: 2025:KHC:38943 RSA No. 22 of 2024 relevant. Moreover, P.W.2 has given the following answers in his cross-examination: *1ೇ ಪಾ ನಮ ಊನವರು ಮತು ನಮ ಾಯವರು. 1 ೇ ಪಾ ನನ ಸಂಬಂಕರು ಎಂದೆ ಸಯಲ . ಈ "ಾೆಯ# ನನ$ೆ %ಾ&' ನು(ಯುವಂ)ೆ ನನ$ೆ 4ೇ ಾ *+ರು)ಾೆ. ನನ ಮುಖ- ./ಾರ0ೆಯ ಪ1ಾಣ ಪತವನು 4ೇ ಾ 3ೇ* ತ4ಾರು 1ಾ(+ದು5, ಾನು ಸ6 1ಾ(ರು)ೇೆ. ಾನು ."ಾ-7ಾ-ಸ 1ಾ(ರುವ8 ಲ . ನನ ಮುಖ- ./ಾರ0ೆಯ ಪ1ಾಣ ಪತದ# ಏನು ಬೆ ರುತ"ೆ ಎಂದು ನನ$ೆ $ೊಲ . ಾನು ಾ ಯರು 3ೇ*ದಂ)ೆ %ಾ&' ನು(ಯ"ೆ5ೕೆ ಎಂದೆ ಸಯಲ ." "ಾನು ಾ ಯವರು .7ಾಗ 1ಾ(=ೊಂಡ ಬ$ೆ? "ಾಖ@ಾಗಳನು ೋ(ರುವ8 ಲ . 1ೇ ಪಾ ಯ 7ಾಗ=ೆB ಬಂದ ಸCತುಗ*$ೆ ಸಂಬಂಧಪಟF "ಾಖ@ಾಗಳನು ಾನು ೋ(ರುವ8 ಲ . 1ೇ ಪಾ ಯು 2ೇ ಪಾ $ೆ "ಾಾ ಸCತುಗಳನು 1ಾಾಟ 1ಾ(ರುವ ಬ$ೆ? ನನ$ೆ $ೊಲ . ಾನು ನನ ಮುಖ- ./ಾರ0ೆಯ ಪ1ಾಣ ಪತದ# 1 ಪಾ 2 ೇ ಪಾ $ೆ ಸCತುಗಳನು 1ಾಾಟ 1ಾ(ರುವ ./ಾರವನು *+ರುವ8 ಲ . 1 ೇ ಪಾ 2 ೇ ಪಾ $ೆ ಸCತುಗಳನು 1ಾಾಟ 1ಾಡುವ ಸಂದಭHದ# ಾ ಗಳI ಅKಾಪ ವಯಸBಾLದ5ರು ಎಂದೆ ಸಯಲ ." 33. Thus, in view of the above, it is clear that P.W.2 does not know anything about the case and as such, his testimony is not helpful to the case of plaintiffs. Though the counsel for plaintiffs cross-examined D.W.1 at length, nothing worth is elicited from his mouth to disprove his testimony. It is true that D.W.1 admitted in his cross-examination on pages 15 and 16 that he knew before purchase that the suit properties are ancestral properties of the family and that he did not issue notices to the plaintiffs prior to 1994 but these answers are not - 9 - HC-KAR NC: 2025:KHC:38943 RSA No. 22 of 2024 relevant because, he has purchased the properties for legal necessity of the family of plaintiffs and as such, he is a Bonafide purchaser. Apart from this, there is nothing in the cross-examination of D.W.1 to disprove his testimony and to prove the case of plaintiffs. Therefore, for all these reasons, I hold that the plaintiffs have not proved that the sale deed in question is illegal and invalid and not binding upon them whereas, the defendant No.2 has proved that the same is legal and valid and that he is a bonafide purchaser of items No.1 and 2 properties. 34. However, the Impugned reveals that the trial court has held that the plaintiffs and defendant No.1 do not constitute a joint Hindu family and Item No.1 property is not a joint family property of their family. The reason for this finding of the trial court is that the plaintiffs No.1 and I have been residing with their respective husbands and separately from the defendant No.1 after their marriages and as such, they do not become members of the family of defendant No.1. However, this finding is erroneous because mere severance in food and worship does not operate as a separation and that until a partition is effected in family properties by metes and bounds, a married daughter continues to be a member of her parental family for the purposes of the joint family properties though not for all other purposes. The trial court has further held that items No.1 and 2 properties are separate properties of the defendant. No.1 since he acquired the same from his father in family partition. However, this finding is also erroneous because the above - 10 - HC-KAR NC: 2025:KHC:38943 RSA No. 22 of 2024 referred documents are clear that item No.1 property was held by the ancestor in the form of ancestral property and the same has been acquired by his grandson i.e., defendant No.1 in a partition or inheritance and as such, since the plaintiffs fall under fourth generation of coparcenary, they become coparcerners and as such, the property is coparcenary property and not separate property of the defendant No.1. As such, these findings of the trial court are required to be reversed by this court. No doubt, the above findings are erroneous and illegal, the other findings of the trial court that the sale deed of the defendant No.2 is valid and he is a bonafide purchaser of the properties is perfectly valid and legal. The other aspects of the case are properly and legally considered by the trial court in the impugned judgment and there is no illegality in the said finding. 35. At this juncture, it is relevant to refer to the ruling reported (2020) 9 SCC 1 in the case of VINEETA SHARMA VS. RAKESH SHARMA & OTHERS which is very much applicable to the facts of present case because, the sale deed of the defendant No.2 is protected under Section 6(5) of the Hindu Succession Act and as such, the plaintiffs have no share in the properties purchased by the defendant No.2. Thus, in view of this, the plaintiffs are not entitled to share in any of the suit properties since items No.1 and 2 are legally purchased by the defendant No.2 and item No.3 property is not proved to be a property of their fund. Though the counsel for plaintiffs has submitted detailed written arguments - 11 - HC-KAR NC: 2025:KHC:38943 RSA No. 22 of 2024 which run in pages but the same do not hold water as the plaintiffs have not proved that the sale was not for legal necessity of the family. The counsel submitted in the written arguments that the defendant No.1 had no salable right in the suit properties to execute the sale deed and the plaintiffs have not signed the sale deed but the same is incorrect as the sale deed is executed by the defendant No.1 in the capacity of karta of the family and for legal necessity. Thus, there is no force in the said written arguments and therefore, I overrule the same. 36. Therefore, for all the above reasons, I am of the considered opinion that the trial court has erred in holding that the plaintiffs failed to prove that they and defendant No.1 constitute a joint Hindu family: that the plaintiffs also failed to prove that items No.1 and 2 of the suit properties are joint family properties of their family: that the plaintiffs also failed to produce documents with respect to item No.3 of the suit properties; and that the defendant No.1 has proved that the suit properties are his separate properties. However, the trial court has not erred in holding that the defendant No.2 is a bonafide purchaser of items No.1 and 2 properties, in appreciating oral and documentary evidence placed before it by the parties and in dismissing the suit of the plaintiffs and refusing to allot share to them in the suit properties. Accordingly, I answer points No.1 to 4 in the AFFIRMATIVE and points No.5 to 7 in the NEGATIVE." - 12 - HC-KAR NC: 2025:KHC:38943 RSA No. 22 of 2024 9. Being further aggrieved by the same, plaintiffs are before this Court in this appeal on the following grounds and substantial questions of law: "The Courts below have failed to consider that, the suit schedule properties are the ancestral joint family properties, the plaintiffs and the defendant No.1 are the co-parceners in respect of the schedule properties, the revenue documents produced by the defendant No.1 substantiate the schedule properties are the ancestral properties. The Courts below have failed to consider that, the defendant No.1 has succeeded the said properties by way of inheritance, the schedule properties are belongs to the grand father of defendant No.1, and hence, the properties in the hands of defendant No.1 are the co-parcenary joint family properties. The Courts below have failed to consider that, the defence set up by the defendant No.2 with regard to the sale deed dated 20/10/1994 is for legal necessity and clearance of antecedent debt, except the recital in the sale deed, the defendants have not produced any evidence to substantiate the said contention. The Courts below have wrongly fasten the burden of proof with regard to the existence of the debt and for family necessity instead of defendant No.2, the Courts below have casted the burden upon the plaintiffs which is contrary to Law. - 13 - HC-KAR NC: 2025:KHC:38943 RSA No. 22 of 2024 The Courts below have failed to consider that, except the suit schedule properties there were no other properties to the joint family of the plaintiffs and defendant No.1 and the alienation of Item No.1 and 2 in favour of defendant No.2 is not for the family necessity or for clearance of antecedent debt. The Courts below have failed to consider that, the defendants 1 & 2 have not substantiated the family necessity, antecedent debt, when this being the position, the sale deed executed by defendant No.1 in favour of defendant No.2 is illegal and unjust. The approach of the Courts below holding that, the suit schedule properties are the self acquired properties of defendant No.1 is erroneous and there is no justification for the courts below to arrive such a conclusion. The Courts below have not properly appreciated the oral and documentary evidence and hence, the reasoning given by the Courts below with regard to the joint family status of the parties as well as the properties is erroneous. The appellants have not filed any other appeal and no other appeal is pending before this Hon'ble Court between the parties against the Judgment and Decree dated 04/10/2023 passed in RA 179/2022 on the file of Senior Civil Judge, and Principal JMFC, KGF, and no other appeal is pending before this Hon'ble Court. - 14 - HC-KAR NC: 2025:KHC:38943 RSA No. 22 of 2024 THE SUBSTANTIAL QUESTIONS OF LAW FRAMED IN THE APPEAL MEMORANDUM READS AS UINDER: 1 Whether the Courts below were justified in holding that, the suit schedule properties are the self acquired of defendant No.1 ignoring the documentary evidence produced by the plaintiffs to substantiate the same as ancestral co-parcenary properties? 2 Whether the Courts were justified holding that, the alienation made by the defendant No.1 in favour of defendant No.2 is for legal necessity without there being any material on record produced by defendant No.2? 3 Whether the appreciation of the oral and documentary evidence by the Courts below are resulted in miscarriage of justice and hence, the finding recorded by the Courts below are based on any legal and justifiable reason?" 10. Sri.M.B.Chandrachood, learned counsel for the appellant with vehemence contended that both the Courts failed to note that the suit properties are the ancestral properties. Therefore, plaintiffs, being the grandchildren of first son of the common prepositus are entitled to maintain the suit and dismissal of the suit has resulted in miscarriage of justice - 15 - HC-KAR NC: 2025:KHC:38943 RSA No. 22 of 2024 and sought for admitting the appeal on the aforesaid substantial questions of law. 11. Per contra, learned counsel for the caveator/respondent No.2 supports the impugned judgments and oppose the appeal grounds by contending that during the lifetime of their father, who is defendant No.1, plaintiffs ought not to have maintained the suit and dismissal is thus justified. 12. Having heard the arguments of both sides, this Court perused the material on record meticulously. 13. On such perusal of the material on record, it is crystal clear that the plaint does not disclose as to when the succession opened. 14. However, plaintiff No.1 according to the cause title is aged about 45 years as on the date of filing the suit. Defendant No.1, who is the father of the plaintiffs, is shown to be aged 70 years. That means to say, common prepositus must have passed long ago before 1956. - 16 - HC-KAR NC: 2025:KHC:38943 RSA No. 22 of 2024 15. The partition of the properties would have taken place between the grandfather and grand uncle, namely Muniyappa @ Muniswamy before 1956. 16. Anyway it is for the plaintiffs to come out with the specific date on which the succession opened. Merely mentioning in the plaint that the suit properties are the joint family properties and there was no partition, would not suffice having regard to the fact that the Succession Act has undergone a phenomenal change on and from the Act came to be passed in the year 1956. 17. Further, if the father of the plaintiffs have derived some right in respect of the suit properties, it is incumbent on the plaintiffs to show that when father of the plaintiffs have derived the right, at least one of the plaintiffs were born. Therefore, it should be construed as the father of the plaintiffs has taken the share in the suit properties for and on behalf of his branch. 18. In the absence of such pleadings and material evidence placed on record, dismissal of the suit by the trial Court on the ground that the suit is not maintainable during the - 17 - HC-KAR NC: 2025:KHC:38943 RSA No. 22 of 2024 lifetime of the father of the plaintiffs, who is defendant No.1 in the Courts below, is thus just and proper. Those aspects of the matter has been rightly re-appreciated by the learned Judge in the First Appellate Court also taking into consideration the principles of law enunciated in Vineeta Sharma’s case. 19. Under such circumstances, having regard to the scope of Section 100 CPC, this Court does not find any legal error in the impugned judgment so as to entertain the appeal further on merits. 20. However, it is always open for the plaintiffs to seek their share after the demise of their father. 21. With that observation, the following: ORDER i) The appeal is meritless and it is hereby dismissed. Sd/- (V SRISHANANDA) JUDGE VM List No.: 1 Sl No.: 44 CT: BHK