- 1 - HC-KAR NC: 2025:KHC:29982 RSA No. 1423 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 1423 OF 2013 (PAR) BETWEEN: 1. S. MEENAKSHI, W/O RAVIKUMAR, AGED ABOUT 37 YEARS, R/A BOMMALAPURA VILLAGE, BOOKANAKERE HOBLI, K.R. PET TALUK, MANDYA DISTRICT - 571426. 2. SAVITHA, D/O K. NAGARAJU, AGED ABOUT 23 YEARS, 3. LEELAVATHI, D/O K. NAGARAJU, AGED ABOUT 21 YEARS RESPONDENT NO.2 & 3 ARE R/AT KARIGANAHALLI VILLAGE, KIKKERI HOBLI, K.R. PET TALUK, MANDYA DISTRICT - 571426. …APPELLANTS (BY SRI ROOPESHA B, ADVOCATE) AND: 1. K. NAGARAJU, S/O LATE DYAVAPPA @ KARIYAPPA, AGED ABOUT 53 YEARS, (SINCE DEAD LEAVING BEHIND THE APPELLANTS AS SOLE LEGAL HEIRS) Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:29982 RSA No. 1423 of 2013 2. NINGARAJAPPA, S/O NAGAIAH, AGED ABOUT 55 YEARS, 3. PAVITRA, D/O K. NAGARAJU, AGED ABOUT 22 YEARS, 4. PUNITHA S/O K. NAGARAJU AGED ABOUT 20 YEARS ALL ARE R/AT KARIGANAHALLI VILLAGE, KIKKERI HOBLI, K.R. PET TALUK, MANDYA DISTRICT - 571426. …RESPONDENTS (BY R1 - K NAGARAJU SERVED, R2 - NINGARAJAPPA SERVED, R4 - PUNITHA SERVED, V/O/DT 20.09.2023 APPELLANTS AS LRS OF DECEASED R1 ARE ALREADY ON RECORD V/O/D 10.06.2025 SERVICE OF NOTICE TO R3 - PAVITHRA H/S) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 24.11.2012 PASSED IN R.A.NO.49/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., K.R.PET, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 25.3.2010 PASSED IN O.S.NO.51/2006 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC, K.R PET. THIS APPEAL, COMING ON FOR FURTHER ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE - 3 - HC-KAR NC: 2025:KHC:29982 RSA No. 1423 of 2013 ORAL JUDGMENT This appeal is against the concurrent finding in a suit for partition and separate possession. Plaintiffs' suit is dismissed so also the appeal filed by the plaintiffs. 2. The admitted genealogy is as under: N.Nanjundaiah (Dead) Nagaraju (D1) Mahadevamma Lakshamma Dharmapal Jagadamba Shivamma Chinamanni Meenakshi(P1) Savitha(P2) Leelavathi(P3) Pavitra(P4) Punitha(P5) 3. Propositus-N.Nanjundaiah died leaving behind 5 children namely Nagaraju, Mahadevamma, Lakshamma, Dharmapal and Jagadamba. Among five children, Nagaraju is the eldest son and he had two wives namely Shivamma and Chinamanni. From first wife-Shivamma, Nagaraju has three daughters namely Meenakshi, Savitha and Leelavathi who are plaintiffs No.1 to 3. From 2nd marriage with Chinamanni, - 4 - HC-KAR NC: 2025:KHC:29982 RSA No. 1423 of 2013 Nagaraju has two daughters namely Pavitra and Punitha who are plaintiffs No.4 and 5. 4. It is stated that Chinamanni - 2nd wife married Nagaraju when the first wife of Nagaraju namely Shivamma was still alive and first marriage was subsisting. Thus, second marriage is void. 5. The suit is filed by children of Shivamma and Chinamanni claiming partition in the property of Nagaraju- defendant No.1. Defendant No.2 in the said suit is the purchaser of 'B' schedule property standing in the name of propositus N.Nanjundaiah. 6. The suit is filed on the premise that the properties are ancestral properties wherein the plaintiffs acquired right in the properties. Defendant No.1 contested the suit and disputed the plaint allegations. Parties led evidence and the case was posted for argument and during the course of argument, the Trial Court framed two additional issues on 06.03.2010. The additional issues are as under: - 5 - HC-KAR NC: 2025:KHC:29982 RSA No. 1423 of 2013 (a) Whether the plaintiffs prove that the Suit Schedule Properties are ancestral and joint family properties of the said plaintiffs and defendant No.1. (b) Whether the 2nd defendant proves that he is bonafide purchaser of property out of 'B' schedule of the plaint as per sale deed dated 15.10.2004? 7. Though additional issue No.1 was framed relating to the nature of the property, it transpires from the record that parties were not given an opportunity to lead evidence on the said issue. Then, after considering the materials on record, the Trial Court came to the conclusion that the suit properties in the name of Nagaraju-defendant No.1 are the self-acquired properties of N.Nanjundaiah the propositus. The Trial Court also concluded that after the death of N.Nanjundaiah, Nagaraju inherited the properties under Section 8 of the Hindu Succession Act, 1956 (for short 'Act of 1956'). This finding was recorded based on the revenue entry which reveals that after the demise of N.Nanjundaiah, his properties devolved upon his son Nagaraju. - 6 - HC-KAR NC: 2025:KHC:29982 RSA No. 1423 of 2013 8. Plaintiffs’ First Appeal is also Hence, this second appeal is filed by the plaintiffs. 9. Learned counsel for the appellants submits that the appellants have produced additional documents to show that the properties standing in the name of N.Nanjundaiah- propositus were the properties acquired from sale of ancestral properties. Thus, the properties in the name of N.Nanjundaiah were the ancestral properties and defendant No.1 inherited the properties under Section 6 of the Act of 1956 and not under Section 8 of the Act of 1956. 10. This Court has taken the said documents on record. In the light of the aforementioned facts and circumstances, the following substantial questions of law would arise for consideration: (a) Whether the Trial Court and First Appellate Court were justified in dismissing the suit on the premise that the properties in the hands of defendant No.1 Nagaraju were the self- acquired properties? - 7 - HC-KAR NC: 2025:KHC:29982 RSA No. 1423 of 2013 (b) Whether appellants have made out a case to allow the production of additional documents? 11. It is also noticed that defendant No.1 has died during the pendency of this appeal. Thus, it is the contention that if the properties are the self-acquired properties of Nagaraju-Defendant No.1, then the properties standing in the name of Nagaraju as on the date of his death will devolve upon the heirs of Nagaraju. 12. Plaintiffs No.4 and 5 are said to be the children from 2nd marriage, which is void, and their entitlement depends on the nature of the property. If the properties standing in the name of Nagaraju were the properties inherited under Section 8 of the Act of 1956, all the plaintiffs will inherit equal share. If the properties standing in the name of Nagaraju were acquired from the income generated from sale of ancestral properties by propositus N. Nanjundaiah, then plaintiffs No.4 and 5 will not get equal share along with plaintiffs No.1 to 3 and their share will be in the share of Nagaraju. - 8 - HC-KAR NC: 2025:KHC:29982 RSA No. 1423 of 2013 13. This Court has noticed that after the issues were framed, the parties were not given opportunity to lead evidence and in view of the death of Nagaraju during the pendency of the proceeding, the share of the parties will have to be decided only after adjudicating the question, whether the properties in the hands of Nagaraju were the properties acquired under Section 8 or Section 6 of the Act of 1956. 14. For the aforementioned reasons, the impugned judgments have to be set-aside. Matter has to be remitted to First Appellate Court to record the evidence on the following issue: Whether the appellants establish that the properties in question were acquired by N.Nanjundaiah- the propositus by utilizing the income from the sale of ancestral properties? 15. Learned counsel for the appellants has produced xerox copies of the documents. Appellants shall produce the original of the said documents. All the parties are permitted to lead additional evidence. - 9 - HC-KAR NC: 2025:KHC:29982 RSA No. 1423 of 2013 16. Since additional documents are placed before this Court, and also considering the fact that the suit is of the year 2006, this Court has consciously referred the matter to First Appellate Court and First Appellate Court shall permit all the parties to lead evidence on the additional issue and thereafter pass appropriate orders. 17. Mahadevamma, Lakshamma, Dharmapal and Jagadamba, the children of N.Nanjundaiah are not made parties to the proceedings (probably on the premise that they are already separated). This Court is of the view that the judgment to be passed by First Appellate Court will not bind those persons. However, if the parties choose to implead them or their legal representatives, Appellate Court shall issue notice to them. 18. Accordingly, the substantial questions of law framed above are answered accordingly. 19. Hence, the following: - 10 - HC-KAR NC: 2025:KHC:29982 RSA No. 1423 of 2013 ORDER (i) The appeal is allowed in part; (ii) The judgment and decree dated 24.11.2012 in RA No.49/2010 on the file of Senior Civil Judge and JMFC, K.R.Pet are set-aside. (iii) The judgment and decree dated 25.03.2010 in OS. No.51/2006 on the file of Civil Judge (Jr.Dn.) & JMFC are set-aside. (iv) Matter is remitted to First Appellate Court for consideration on the light of observations made above. (v) The appellants shall appear before First Appellate Court on 01.09.2025. (vi) Respondents who are not represented by any Advocate before this Court shall appear before First Appellate Court pursuant to the notice to be issued by First Appellate Court. (vii) Registry to send back the records forthwith to First Appellate Court. Sd/- (ANANT RAMANATH HEGDE) JUDGE GVP List No.: 1 Sl No.: 21