- 1 - NC: 2025:KHC-D:3403-DB RFA No. 100272 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 19TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100272 OF 2018 (PAR/POS) BETWEEN: TEJAWWA, W/O TIRKAPPA ARKSALI AGE:60 YEARS, OCC:AGRICULTURE, R/O: GOPANKOPPA, TALAWAR ONI, HUBBALLI-580023. …APPELLANT (BY SMT. CHITRA M. GOUNDALKAR, ADVOCATE) AND: 1. CHANNAVEERAPPA, S/O GURAPPA UMANABADI AGE. 58 YEARS, OCC. AGRICULTURE, R/O: KORISHETTAR ONI, SAUNSHI, TQ. KUNDGOL-581113. 2. ERABASAPPA S/O BASAVANNEPPA UMANABADI @ ASUNDI, SINCE DECEASED R/BY LRS 2A. SMT. LAXMI, W/O ERABASAPPA ASUNDI, AGE:62 YEARS, OCC: HOUSE HOLD, R/O: SAUNSHI VILLAGE, TQ: KUNDGOL-581113. MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA Date: 2025.03.22 11:26:15 +0530 - 2 - NC: 2025:KHC-D:3403-DB RFA No. 100272 of 2018 2B. SMT. VIJAYRANI W/O SANTOSH BANJIGAR AGE:45 YEARS, OCC: HOUSE HOLD, R/O: SAUNSHI VILLAGE, TQ: KUNDGOL-581113. 2C. GIRISH S/O ERABASAPPA ASUNDI AGE:40 YEARS, OCC: R/O: SAUNSHI VILLAGE, TQ:KUNDGOL-581113. 2D. GURAPPA S/O ERABASAPPA ASUNDI DECEASED DELETED V/O. DATED 25.11.2024. …RESPONDENTS (BY SRI. SRI. RAJASHEKHAR S. ARANI, ADVOCATE FOR R1; NOTICE TO R2 (A) TO R2(C) IS SERVED; V/O. DATED 06.09.2021 PAPER PUBLICATION IS ACCEPTED) THIS RFA IS FILED UNDER SECTION 96 CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL JUDGE AND JMFC KUNDGOL DATED 05.01.2018 IN O.S.NO.190/2014 BY ALLOWING THIS APPEAL WITH COST THROUGHOUT IN THE INTEREST OF JUSTICE. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 3 - NC: 2025:KHC-D:3403-DB RFA No. 100272 of 2018 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) 1. This Regular First Appeal is filed by the appellant challenging the judgment and decree dated 05.01.2018, passed in O.S.No.190/2014, by the learned Senior Civil Judge and JMFC, Kundagol. 2. For convenience, the parties are referred to based on their ranking before the Trial Court. The appellant was the plaintiff and the respondents were the defendants. 3. Brief facts leading rise to the filing of this regular first appeal are as follows: The plaintiff filed a suit against the defendant for the relief of partition and separate possession, claiming a ½ share in the suit properties. It is the case of the plaintiff that one Gurappa Umnabadi was the original propositus of the family of the plaintiff. He had a wife by the name Gangavaa. Gurappa and Gangavva had three children, namely Erabasappa adopted by Basavanneppa, - 4 - NC: 2025:KHC-D:3403-DB RFA No. 100272 of 2018 Tejavva/plaintiff and Channaveerappa/defendant. The mother of the plaintiff died. Erabasappa is the eldest brother of the plaintiff and the defendant. He has gone into adoption to another family. He ceases to be the member and co-parcener of the joint family. Therefore, he is not entitled to seek a share in the suit schedule properties. It is contended that the suit schedule properties are the ancestral properties of the plaintiff and the defendants. The plaintiff and the defendant No.1 are the members of a Hindu joint family and no partition is effected between the plaintiff and the defendant No.1, and the plaintiff has got a half share in the suit schedule properties. The plaintiff demanded partition and separate possession, but defendant No.1 refused to effect the partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 4. The trial Court issued summons to the defendants. Defendant No.1 appeared through his counsel - 5 - NC: 2025:KHC-D:3403-DB RFA No. 100272 of 2018 and filed a written statement contending that the suit of the plaintiff is false, frivolous and vexatious, and denied the contents of the plaint. It is denied that Erabasappa has gone into adoption to another family. It is denied that the suit schedule properties are the ancestral properties of the plaintiff and the defendants, and the plaintiff being the coparcener and a member of the Hindu Joint Family has the right to claim a ½ share in the suit schedule properties. It is contended that plaintiff’s marriage was solemnized in 1975. At the time of her marriage, she had received cash, gold and silver ornaments. The value of such articles was equal to her share in the suit properties. She has accepted the same in lieu of her share and she has no right to claim a share in the suit schedule properties. Hence, on these grounds, prays to dismiss the suit. 5. The trial Court, based on the pleadings of the parties, framed the following issues: - 6 - NC: 2025:KHC-D:3403-DB RFA No. 100272 of 2018 ISSUES 1. Whether the plaintiff proves that schedule properties are the joint family properties of the plaintiff and defendant? 2. Whether the plaintiff proves that EErabasappa had gone in adoption, hence he has no share in the suit schedule properties? 3. Whether the defendant proves that EErabasappa is necessary party to the suit? 4. Whether the defendant proves that plaintiff received cash, gold and silver in lieu of her share in the schedule properties? 5. Whether defendant proves that the court fee paid is insufficient? 6. Whether the plaintiff is entitled for the reliefs claimed in the suit? 7. What order or decree? 6. To substantiate her case, the plaintiff examined herself as PW.1, examined one witness as PW.2, and marked 16 documents as Ex.Ps.1 to 16 and Ex.C.1. On the other hand, the defendant was examined as DW.1, examined one witness as DW.2 and marked 4 documents - 7 - NC: 2025:KHC-D:3403-DB RFA No. 100272 of 2018 as Ex.D.1 to 4. After recording the evidence and on the assessment of oral and documentary evidence, the trial Court answered issue Nos.1, 2, 4, 5, and 6 in the negative, and issue No.3 in the affirmative, and issue No.7 as per the final order. The suit of the plaintiff was dismissed with cost vide judgment dated 05.01.2018. Plaintiff aggrieved by the said judgment filed this Regular First Appeal. 7. Heard learned counsel for the plaintiff and learned counsel for the defendant No.1. 8. Learned counsel for the plaintiff submits that the suit schedule properties were granted in favour of plaintiff’s father and he died intestate. The plaintiff and the defendants being the children have succeeded to the estate of the deceased Gurappa. She submits that the elder son of Gurappa had gone in adoption, therefore he has no share in the suit schedule properties. She also submits that the issue involved in the present suit is covered by the judgment of the Co-ordinate Bench of this - 8 - NC: 2025:KHC-D:3403-DB RFA No. 100272 of 2018 Court in the case of Aravind and another V/s. Sunanda and others, in RFA No.100149/2014, disposed of on 13.01.2020, wherein the Co-ordinate Bench of this Court held that the married daughters are entitled to a share in the granted lands. She submits that the impugned judgment is contrary to the law laid down by the Division Bench of this Court in Arvaind’s case (supra) and she prays to allow the appeal. 9. Per contra, learned counsel for defendant No.1, supported the impugned judgment and submitted that the trial Court was justified in dismissing the suit of the plaintiff on the ground that married daughters do not fall within the definition of family as per Section 2(12) of the Karnataka Land Reforms Act, and are not entitled a share in the granted lands. Hence, on these grounds, he prays to dismiss the appeal. 10. Perused the records and considered the submissions of the learned counsel for the parties. - 9 - NC: 2025:KHC-D:3403-DB RFA No. 100272 of 2018 11. The points, that would arise for our consideration are: (i) Whether the plaintiff proves that the suit schedule properties are the joint family properties of the plaintiff and the defendants ? (ii) Whether the plaintiff proves that she is entitle to a share in the suit schedule properties? (iii) Whether the plaintiff proves that the judgment and the decree passed by the trial Court is arbitrary and erroneous ? (iv) What order or decree? 12. Point No.1: The plaintiff, to substantiate her case, examined herself as PW.1. She has deposed that the suit schedule properties were granted in favour of Gurappa i.e. the father of the plaintiff and defendant No.1. After the demise of her father, the plaintiff and the defendants being the daughter and sons were succeeded to the estate of the deceased Gurappa. She also deposed that the elder brother had gone into adoption, to the - 10 - NC: 2025:KHC-D:3403-DB RFA No. 100272 of 2018 another family and he is not entitled to the share in the suit schedule properties. Further, in order to prove that the suit schedule properties were granted in favour of Gurappa. The plaintiff has produced the documents, Exs.P.1 and P.2 are the RTC extracts of lands bearing Sy.Nos.134/1C, 342/1 respectively, standing in the name of defendant No.1. Ex.P.3 is the death certificate of Gurappa, who passed away on 03.12.1970. Ex.P.4 is the mutation extract, which discloses that after the demise of Gurappa, the property was transferred in the name of defendant No.1. Ex.P.5 is ration card of the son of the plaintiff. Ex.P.6 and 7 are the mutation extracts. Ex.P.8 is the death certificate of Erabasappa, who passed away on 12.09.2015. Exs.P.9 to 12 are the certified copies of RTC in respect of suit schedule properties. Ex.P.13 is mutation order. Ex.P.14 is certified copy of ROR pertaining to the Sy.No.134/1B/2, standing in the name of Defendant No.1. Ex.P.15 is mutation entry. Ex.P.16 is Hayathi members Yadi and Ex.C.1 is the death certificate of Erabasappa (Ex.P.8). Further, the plaintiff also examined one Rudravva - 11 - NC: 2025:KHC-D:3403-DB RFA No. 100272 of 2018 W/o. Virupaxappa Lokapur as P.W.2, she has deposed in the same terms of PW.1. In rebuttal, defendant No.1 was examined as DW.1. He has reiterated the written statement averments in the examination-in-chief and in order to prove his defence, he has marked the documents. Ex.D.1 is the certified copy of Form No.7. Ex.D.2 is the statement given before the Land Tribunal. Ex.D.3 is the order of Land Tribunal. Ex.D.4 is the Form No.10, which discloses that the said land was granted in favour of Erabasappa Gurappa Humanabadi, who submitted an application before the land Tribunal for grant of occupancy rights. 13. Admittedly, Gurappa was in possession of the suit schedule properties prior to submission of Form No.7 by defendant No.2. The said fact has not been disputed by the defendants. The defendants have produced the orders passed by the Land Tribunal, which establishes that the suit schedule properties are the joint family properties of the plaintiff and the defendants. - 12 - NC: 2025:KHC-D:3403-DB RFA No. 100272 of 2018 Though it is the case of the plaintiff that defendant No.2 had gone in adoption to another family, to substantiate her contention, the plaintiff except for pleadings, has not produced any records to establish that defendant No.2 has gone into adoption. The plaintiff has failed to prove that defendant No.2 has gone into adoption. Hence, the Plaintiff is the daughter and defendant Nos.1 and 2 are the sons of the deceased Gurappa. It is not the case of the defendants that there was a partition effected between the members of the family. The plaintiff has proved that the suit schedule properties are the joint family properties of the plaintiff and the defendants and no partition is effected. 14. Hence, in view of the above discussion, we answer the point No.1 in the affirmative. 15. Point Nos.2 and 3 are interlinked and taken together, to avoid repetition of facts. - 13 - NC: 2025:KHC-D:3403-DB RFA No. 100272 of 2018 16. Point Nos.2 and 3:- It is the case of the plaintiff that the plaintiff and the defendants are the children of Gurappa and the suit schedule properties were granted in favour of defendant No.2, on behalf of the entire family and not in the individual capacity. The trial Court only on the ground that the married daughter is not entitled to a share in the granted land as per Section 2(12) of the Karnataka Land Reforms Act, has dismissed the suit of the plaintiff. The said issue is covered by the Co-ordinate Bench of this Court in the case of Aravind and another V/s. Sunanda and others, in RFA No.100149/2014, disposed of on 13.01.2020, which reads as under: 24. Insofar as the contention that the plaintiffs being daughters, who were married prior to 01.03.1974, and that they were not entitled to inherit the rights of tenancy, the word ‘Family as defined in clause (12) of Section of the KLR Act is extracted below: ` “Family” means.- (a) in the case of an individual who has a spouse or spouses, such individual, the - 14 - NC: 2025:KHC-D:3403-DB RFA No. 100272 of 2018 spouse or spouses and their minor sons and unmarried daughters, if any; (b) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters; (c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmarried daughters, whether in his custody or not; and (d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters; Similarly, Section 24 of the KLR Act reads as under: “24. Rights of tenant to be heritable.- Where a tenant dies, the landlord shall be deemed to have continued the tenancy to the heirs of such tenant on the same terms and conditions on which such tenant was holding at the time of his death.” Section 4(2) of the Hindu Succession Act, 1956 is also extracted below: 4. Over-riding effect of Act.-(1) Save as otherwise expressly provided in this Act,- (a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of - 15 - NC: 2025:KHC-D:3403-DB RFA No. 100272 of 2018 this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. (2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provision of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.” Sub-Section (2) was omitted by Act 39 of 2005, sec. 2 (w.e.f. 9-9-2005). Sub Section (2), before omission, stood as above. 25. In order to pursue their contentions as stated above, the defendants relied upon the judgment of Division Bench of this Court in the case of Nimbavva and Others vs. Channaveerayya and Others reported in MANU/KA/3854/2013: ILR 2013 KAR 6202 to contend that the daughters who were married were not entitled to succeed to tenanted property. The facts of the case on hand and the facts of the case that were involved in Nimbavva’s case (referred supra) are completely different. In the - 16 - NC: 2025:KHC-D:3403-DB RFA No. 100272 of 2018 cited case, the propositus died on 04.01.1974 i.e., prior to 01.03.1974, which was the appointed date under the KLR Act. One of the sons of the original tenant sought and obtained occupancy rights in respect of the land. It was therefore, pointed out in the cited judgment that the person, who was registered as an occupant became the absolute owner as the married daughters were not entitled to seek occupancy rights as they were not members of a family. 27. The reliance of the defendant No.3 on section 4(2) of the Hindu Succession Act to contend that the provisions of the said Act would not affect the provisions of any law for the devolution of tenancy rights in respect of such holdings. It is to be noted that section 4(2) of the Hindu Succession Act was omitted with effect from 09.09.2005 and the present suit is filed in the year 2011. In addition, the relief sought for in the suit is not regarding the devolution of tenancy rights but relates to partitioning of an estate subsequent to confirmation of rights of tenancy. Therefore, this argument too does not take the case of the defendants any forward. 17. The Co-ordinate Bench of this Court has already taken the view that the married daughters are entitled to a share in the granted land of the family. The said aspect was overlooked by the trial Court, and it - 17 - NC: 2025:KHC-D:3403-DB RFA No. 100272 of 2018 committed an error in dismissing the suit of the plaintiff. The judgment passed by the Co-ordinate Bench of this Court in Aravind’s case (supra) applies to the present case on hand. Hence, in view of the above discussion, we answer the point Nos.2 and 3 in the affirmative. 18. Point No.4:- Accordingly, we proceed to pass the following: ORDER i) The appeal is allowed. ii) The judgment and preliminary decree dated 05.01.2018, passed in O.S.No.190/2014, by the learned Senior Civil Judge and JMFC, Kundagol is hereby set aside. iii) The Suit of the plaintiff is decreed. iv) The Plaintiff and the defendants each are entitle to 1/3rd share in the suit schedule properties. - 18 - NC: 2025:KHC-D:3403-DB RFA No. 100272 of 2018 v) The Office is directed to draw the preliminary decree. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE Vb/- LIST NO.: 1 SL NO.: 4