- 1 - HC-KAR NC: 2025:KHC:36954 RSA No. 852 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 852 OF 2022 (PAR) BETWEEN: SRI. T.V. RADHAKRISHNA S/O LATE VINAYAKA MUDALIAR AGED ABOUT 78 YEARS REPRESENTED BY HIS SPA HOLDER SRI T R UMASHANKAR S/O T V RADHAKRISHNA AGED ABOUT 50 YEARS R/AT NO. 1/87, 1A OLD POLICE STATION ROAD NEAR PADMANABHA KALYAN MANTAPA OIL MILL ROAD, TUMKURU - 572 101. …APPELLANT (BY SRI. NAIK RAMACHANDRA RAMA, ADVOCATE) AND: 1. SRI. T.V.VISHWANATHA MUDALIAR S/O LT VINAYAKA MUDALIAR AGED 76 YEARS R/AT NO 3, ANNAIAH RED ROAD ULSOOR, BANGALORE - 560 016. 2. SRI. T.C. RAJESH S/O T. CHANDRASHEKAR AGED ABOUT 45 YEARS R/AT 871/A, OIL MILL ROAD CROSS OLD POLICE STATION ROAD, TUMAKURU - 572 101. Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:36954 RSA No. 852 of 2022 3. SRI. T.C. MANJUNATH, S/O T. CHANDRADSHEKAR AGED ABOUT 43 YEARS R/AT 871/A, OIL MILL ROAD CROSS OLD POLICE STATION ROAD TUMAKURU - 572 101. …RESPONDENTS (BY SRI. NARENDRA BABU B.K, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 16.02.2022 PASSED IN RA.NO.256/2020 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU, DISMISSING APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 09.09.2020 PASSED IN O.S.NO.105/2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.Ramachandra Rama Naik, learned counsel for the appellant and Sri.Narendra Babu B. K., learned counsel for the respondents. 2. Plaintiff is the appellant in this second appeal challenging the order of the Trial Court passed in O.S.No.105/2011 and confirmed by the First Appellate - 3 - HC-KAR NC: 2025:KHC:36954 RSA No. 852 of 2022 Court in RA No.256/2020 denying the share of the plaintiff in item No.2 of the suit properties. 3. Facts in brief which are utmost necessary for disposal of the appeal are as under: 3.1. A suit for declaration and separate possession came to be filed by the plaintiffs in respect of the following properties: Item No.1. All piece and parcel of the residential house property and including the portion of vacant site bearing No.1/871 A assessment No.1203/188 situated at Old Police Station Road, Near Padmamba Kalyana Mantapa, Oil Mill Road, Tumkur, Measuring East to West 38¼ feet and North to South 30 feet and bounded as follows; East: Amaldhar Gundappa Road, West: Conservancy, North: Private Property, South: Property in the name of Vishwanatha Mudliar. And the shop bearing assessment No. 1205/190 Eastern side measuring East to West 12 feet and North to South 14 feet And Western Side vacant site measuring East to West feet 12 feet and North to South 14 feet in Between 8 feet common passage and the shop assessment No.1204/189 in the name of Vishwanatha Mudliar, and bounded as follows; East: Amaldhar Gundappa Road, West: Conservancy North: Property in the name of Vishwanatha Mudliar South: Old Police Station Road. - 4 - HC-KAR NC: 2025:KHC:36954 RSA No. 852 of 2022 Item No.2. All piece and parcel of the residential house property and including the portion of vacant site bearing No. 1/871B, assessment No.1204/189 situated at Old Police Station Road, near Padmamba kalyana Mantapa, Oil Mill Road, Tumkur, measuring East to West 30 ¼ feet excluding 8 feet common passage and North to South 30 feet and bounded as follows; East: Amaldhar Gundappa Road, West: Conservancy, North: Property in the name of Vinayaka Mudliar. South: Shops and Old Police Station Road. And the Shop measuring East to West 12 feet and North to South 14 feet assessment No.1204/189 and bounded as follows; East: Shop assessment No.1204/189 in the name of Vinayaka Mudliar, West: 8 feet common passage, North: Property in the name of Vishwanath Mudliar. South: Old Police Station Road 3.2. Claim was laid by the plaintiff by contending that suit properties are the joint family and ancestral properties and common prepositus was one Vinayaka Mudaliar and he had children by name T.V.Vishwanatha Mudaliar, T.V.Chandrashekar and R.V.Radhakrishna. 3.3. Among them, T.V.Chandrashekar, remained unmarried and he passed away on 20.09.2009. - 5 - HC-KAR NC: 2025:KHC:36954 RSA No. 852 of 2022 3.4. Father of the plaintiff had purchased the house bearing No.1/871A which was assessed by the revenue authorities with assessment No.1203/188 which consisted of a shop as well which is having assessment No.1205/190 which is item No.1 of the suit property. Another item of the suit property bearing No.1/871B assessed in item No.1204/189 including a shop with assessment No.1204/189 is also joint family property. 3.5. When the demand for the share was made, same was denied and therefore, plaintiff had to file the suit for partition. 4. Upon receipt of the suit summons, defendant appeared and admitted the relationship but denied item No.2 is the ancestral property but maintained that is his self acquired property and therefore, there cannot be any share to the plaintiff in item No.2 of the property. 5. Learned Trial Judge after raising necessary issues, recorded the evidence of the parties and decreed the suit in part by granting 1/3rd share in item No.1 of the - 6 - HC-KAR NC: 2025:KHC:36954 RSA No. 852 of 2022 suit property and denied the share in item No.2 of the suit property inter alia holding in paragraph Nos.24 and 25 as under and held issue No.2 against the plaintiff and in favour of defendant No.1: “24. ADDITIONAL ISSUE No.2 : The plaintiff pleaded in the plaint that the third son of Vinayaka Modaliar by name T.V.Chandrashekhar had died in the year 1999 without marriage and there was no issue to him. But, the defendant No.1 is own brother of the plaintiff clearly stated that his brother T.V.Chandrashekar had got married and defendant No.2 and 3 are his sons. Now, the question is whether the defendant No.2 and 3 are the sons of T.V.Chandrashekhar or not, to shown this the defendants furnished several documents, out of that Ex.D11 is a Ration Card shown the name of T.V.Chandrashekar and he had wife by name of Lakshmamma and sons Rajesh and Manjunatha. The said Ration Card issued by the Government in the year 1998. Ex.D12 is a Cumulative Record issued by the School to the defendant No.3 that the father name mentioned in the said document as T.V. Chandrashekar. Ex.D13 and 14 are the Statements of Marks Cards, these documents are shown the father name mentioned as Chandrashekhar T.V. Ex.D15 is a LIC Bond of defendant which is also mentioned his father name Chandrashekhar. Ex.D18 and 19 are the Voters I.D card and Ex.D20 is Adhar Card. In these three documents, the father name of the defendant No.2 and 3 mentioned as T.V.Chandrashekhar. Ex.D17 is a Wedding Card of defendant No.3 which is also mentioned the name of father as Chandrashekhar. Looking in to these material documents shows that the defendant No.2 and 3 are the sons of T.V.Chandrashekhar and they are the L.Rs of the deceased T.V.Chandrashekhar. The plaintiff in his plaint pleaded that the defendant No.2 and 3 are no way concerned to his family not at all acceptable. These - 7 - HC-KAR NC: 2025:KHC:36954 RSA No. 852 of 2022 documents are material documents to believe the contention of the defendant that they are the L.Rs of T.V.Chandrashekhar. 25. During crossexamination of PW1 he denied that defendant No.2 and 3 are the sons of T.V.Chandrashekhar., but in support of his deposition, there is no document furnished by the plaintiff. The defendants are furnished the material document and also in their crossexamination are clearly shows that Vinayaka Modaliar had three sons and defendant No.2 and 3 are the sons of T.V.Chandrashekhar. Hence, my answer on Additional Issue No.2 in the Affirmative.” 6. Being aggrieved by the same, plaintiff filed an appeal before the First Appellate Court in RA No.256/2020. 7. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on reappreciation of the oral and documentary evidence placed on record, dismissed the appeal of the plaintiff and confirmed the judgment and decree passed by the Trial Court denying the share to the plaintiff in item No.2 of the suit property. 8. Being further aggrieved by the same, plaintiff is before this Court, in this appeal, on the following grounds and substantial questions of law: - 8 - HC-KAR NC: 2025:KHC:36954 RSA No. 852 of 2022 GROUNDS  “That both the impugned judgment and decree challenged under this appeal is illegal, arbitrary without appreciation of evidence and law and the same is liable to be set-side.  The main contention of the plaintiff that the both the suit schedule properties are joint family properties and out of joint family funds it has been purchased. The court below has framed issue No. 2, that whether the 1st defendant proves that the suit item No. 2 property is his self acquired property. In answering the issue No. 2, the court below has came to a conclusion that the defendant no. 1 was working as a Assistant Master in Government School and he had independent source to purchase the said property also there is no recital in the sale deed it is not mentioned the name of the plaintiff and his father. But this strange view have taken by the trail court that as on the day of purchasing item No.2, property the plaintiff and defendant No. 1 have jointly living in the schedule item No.1 property along with their parents, because at that time the defendant No. 1 was not married and his marriage was held in the year 1980. This fact was not considered by the court below. As such the judgment and decree is liable to be set aside. - 9 - HC-KAR NC: 2025:KHC:36954 RSA No. 852 of 2022  It is submitted the no doubt the defendant No. 1 was the teacher at the time of purchasing the suit item No. 2 property and he disclosed in his evidence that he was drawing salary for a sum of Rs.4,000/- per month in the year 1972, but the Ex. D8 Service Registrar of the defendant No. 2 disclose that the salary of defendant No. 2 in the year 1972 enhanced by Rs. 215 to 225/ in all he had not drawn more than Rs.500/- per month but falsely deposed and establish source of income he had made statement he draw the salary of Rs.4,000/- per month is false no documents produced to support that. This piece of evidence was not considered by the court below.  It is submitted that, the plaintiff and defendant No. 1 father working in Municipality and he had source of income and he had contributed to purchase the item No. 2 property and the value of the said property is Rs.10,000/- as per the sale deed. But the defendant No. 1 had not show any piece of evidence that at that time he had such huge amount in his savings. The court below has only relied upon the statement of the defendant No. 1 and assuming that he was a Government employee, he had the capacity to purchase the item No. 2 property is not correct.  It is submitted that, the court below has framed the Issue No. 3, that that whether the plaintiff and - 10 - HC-KAR NC: 2025:KHC:36954 RSA No. 852 of 2022 defendant No.1 have constituted the joint family property, answering this issue the trail court has taken a contention that since 1962, the plaintiff and defendant No. 1 to their work they are living separately and they have not constitute the joint family and the item No.1, property was purchased by the father of the plaintiff in the year 1959 and there was no partition was took place between plaintiff and defendants in respect of that property and both parties have the right over the said property. No doubt item No. 1 property was purchased by the father of plaintiff and he was working in Municipality and he drawing the salary, but the item No. 2 property was purchased in the name of defendant No. 1, at that time the father was alive and this defendant No. 1 marriage was not held and they are living in joint family and the defendant No. 1 himself admitted in his cross examination that his marriage was solemnized in the year 1980. At that time there was a joint family between the plaintiff and defendant No.1. But this facts and evidence was not considered by the court below simply it is held that the item No. 2 property was purchased out of his own earnings.  It is submitted that both courts below have not given a finding that this plaintiff was not constituted the joint family along with the defendant No. 1 at the time of purchasing the item No. 2 suit schedule property. - 11 - HC-KAR NC: 2025:KHC:36954 RSA No. 852 of 2022 But the Ex.D. 2 Service Register of the Defendant No.1 disclosed that he was served in Godalkere School from 1962 to1969 and 1970 onwards to he was served Taluk Boad High School Huliyar, both the schools are very near to Tumakur and he was resided along the with family up to his marriage. At that time the father of the plaintiff and defendant No. 1 was alive and he was died in the year 1973. This piece of evidence is ignored by both court below and they came to conclusion that the defendant No. 1was living separately and purchased the item No. 2 property is not proper. As such the judgment and decree is liable be set side.  It is submitted that, plaintiff has specifically pealed that there was three members in his family himself and his brother defendant No. 1 and another brother namely Sri. T.V. Chandrasekhar was no more and he died without marriage and issueless. But after filing of this suit at the middle stage the defendant No. 2 and 3 have field the impleading application and came on records as the defendants. But the plaintiff resisted that application. While allowing the application the court below has observed that the plaintiff contention that Sri. T.V. Chandrashekar was died as unmarried and issue less, therefore it is kept open for adjudication. Towards that observation the court below framed additional issue No. 2. To support this - 12 - HC-KAR NC: 2025:KHC:36954 RSA No. 852 of 2022 contention the defendants No. 2 and 3 have filed some documents which are their own records and furnished the details of that documents are given by them only. Except producing the documents they did not examine any independent witness, to establish their relation between the plaintiff and defendant No.1. The court below has not taken into consideration of this lacuna answer the additional issue No.2 in affirmative and it holds that the defendant No. 2 and 3 are the legal heirs of Late. T.V. Chandrasekhar is against to the law and the same is liable to be set side.  It is submitted that the both courts below have not observed in the documents produced and marked by the Defendant No. 2 and 3 that the name of T.V. Chandrshekar mentioned as Chandrashekar and after 2001 onwards documents the father name of the defendant No.2 and 3 is mentioned as T.V.Chandrashekar earlier documents it is mentioned as only Chandrashekar.  It is submitted that the defendant No. 2 and 3 had claimed that their father marriage was registered marriage, but they did not produced marriage certificate issued by the competent authority. But they have produced a document EX. D. 9 which is a agreement. It was not proved by the defendant No. 2 and 3. As such the finding given by the court below - 13 - HC-KAR NC: 2025:KHC:36954 RSA No. 852 of 2022 regarding the defendant No.2 and 3 are the sons of late T.V.Chandrashekar is not acceptable. As such the judgment and decree liable to be side.” SUBSTANTIAL QUESTIONS OF LAW a) Whether the both the courts have justified that rightly appreciated the evidence and documents placed on records in passing the judgment and decree? b) Whether both court below has justified that in answering the Issue No. 2 as the defendant No. 2 has purchased the item No. 2 property out of his own earnings? c) Whether the both court below has rightly answer the issue No. 3 that the plaintiff has not proved that constituting the joint family with the defendants? d) Whether the lower appellate court has justified that it had considered all issues and finding given by the court below? e) Whether both courts below have justified that the defendant No. 2 and 3 have proved that they are the legal heirs of late T.V. Chandrashekar? f) Whether both courts below has justified that he document Ex.D. 9 is the appropriate document to prove the marriage of deceased T.V. Chandrashekar? - 14 - HC-KAR NC: 2025:KHC:36954 RSA No. 852 of 2022 g) Whether the both courts below has justified that additional issue No. 1, that father of the plaintiff and defendant No. 1 has purchased suit schedule item No. 2, property in his name from the benefits of the plaintiff and the 1st defendant as the income from the joint family savings? h) Whether both the court below has justified that defendant No. 1 had proved that he has sufficient source to purchase the item No. 2 of the schedule property? 9. Learned counsel for the appellant reiterating the grounds urged in the appeal memorandum contended that both the Courts did not appreciate the material evidence properly inasmuch as defendant No.1 did not possess any independent income to purchase suit item No.2 of the suit property. Further, the probative value of Exs.1 to D5 has not been properly appreciated by both the Courts which has resulted in miscarriage of justice and sought for admitting the appeal on the aforesaid substantial questions of law. - 15 - HC-KAR NC: 2025:KHC:36954 RSA No. 852 of 2022 10. Learned counsel for the respondents appeared through video conference and supports the impugned judgment. 11. Having heard the parties in detail, this Court perused the material on record meticulously. 12. On such perusal of the material on record, it is crystal clear that Exs.D.1 to D.5 substantially establishes the independent income for defendant No.1 to possess item No.2 of the suit property. 13. Paragraph Nos.24 and 25 of the judgment of the Trial Court referred to supra, makes it clear that defendant No.2 had not only independent income but has also purchased the property by virtue of the registered document. 14. It is also noted that except making a rowing statement that item No.2 of the suit property is also a joint family property; no other material is placed on record by the plaintiff to establish that the joint family had the - 16 - HC-KAR NC: 2025:KHC:36954 RSA No. 852 of 2022 sufficient nucleus and spillover income which was utilized by defendant No.1 for purchase of item No.2 of the suit property. 15. When such is the factual aspects of the matter recorded by both the Courts on adjudication of the material evidence on record, having regard to the scope of Section 100 of CPC, this Court is of the considered opinion that the factual aspects cannot be reagitated before this Court by admitting the appeal on the aforesaid substantial questions of law. 16. Accordingly, the following: ORDER Appeal is meritless and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 36 CT: BHK