- 1 - HC-KAR NC: 2025:KHC:31213 RSA No. 413 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 413 OF 2015 (PAR) BETWEEN: 1. SMT. NAGALAKSHMAMMA @ NAGARATHNAMMA W/O LATE G. THIMMAPPA, AGED ABOUT 82 YEARS, SINCE DEAD APPELLANTS 2, 3 AND RESPONDENT ARE THE LEGAL REPRESENTATIVES. 2. SRI. NAGARAJU S/O LATE G. THIMMAPPA, AGED ABOUT 61 YEARS, AGRICULTURIST, RESIDING AT PLOT NO.48, PRAGATHI NAGAR, YUSUF GUDA, HYDERABAD - 500 045. 3. SMT. VIJAYALAKSHMI D/O LATE G. THIMMAPPA, W/O. SRI R. JANARDHAN, AGED ABOUT 63 YEARS, RESIDING AT NO. 119, M.I.G, HOUSE, BHARATH NAGAR COLONY, NEAR YERRAGADDE, HYDERABAD - 560 045. …APPELLANTS (BY SRI. Y.K. NARAYANA SHARMA, ADVOCATE) AND: Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:31213 RSA No. 413 of 2015 SRI. THYAGARAJU W/O LATE G. THIMMAPPA, AGED ABOUT 59 YEARS, AGRICULTURIST, RESIDENT AT KODIKANDA VILLAGE, HINDUPUR TALUK, ANANTHAPUR DISTRICT, ANDHRA PRADESH - 515 201. …RESPONDENT (RESPONDENT - SERVED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 READ WITH ORDER XLI RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 20.11.2014 PASSED IN R.A.NO.87/2014 ON THE FILE OF THE ADDITIONAL SENIOR CILVIL JUDGE & JMFC., CHICKBALLAPURA, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 13.03.2014 PASSED IN O.S.NO.143/2010 ON THE FILE OF THE CIVIL JUDGE & JMFC., BAGEPALLI. THIS APPEAL COMING ON FOR HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This appeal is preferred by the plaintiffs assailing the judgment and decree dated 20.11.2014 in R.A.No.87/2014 on the file of Additional Senior Civil Judge and JMFC, Chikkaballapura, allowing the appeal in part and decreeing the suit of the plaintiffs in respect of item No.1 in O.S.No.143/2010 on the file of Civil Judge, Bagepalli, - 3 - HC-KAR NC: 2025:KHC:31213 RSA No. 413 of 2015 dismissing the suit of the plaintiffs as per the judgment and decree dated 13.03.2014. 2. For the sake convenience, parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiffs that, late Sri. G. Thimmappa and Smt. Nagalakshmamma (plaintiff No.1) are the parents of plaintiff Nos.2, 3 and the defendant. 4. It is the case of the plaintiffs that, the suit schedule properties are the ancestral properties of the plaintiffs and the defendant and as such, the plaintiffs are entitled for share in the suit schedule properties. It is also stated that, the plaintiffs filed a suit in O.S.No.160/2009 which came to be dismissed for non-prosecution on 02.11.2010. Further it is stated that, the plaintiffs have been advised to file a suit in O.S.No.143/2010 based on new cause of action and accordingly the plaintiffs have filed a suit seeking partition and separate possession in respect 3/4 share in the suit schedule properties. - 4 - HC-KAR NC: 2025:KHC:31213 RSA No. 413 of 2015 5. After service of notice, the defendant entered appearance and admitted the relationship between the parties. 6. It is the specific case of the defendant that, the father of the plaintiffs had acquired the schedule properties as per the Partition Deed dated 05.09.1973 registered on 14.09.1973. It is also stated in the written statement that, the suit schedule properties are not the joint family properties of the plaintiffs and the defendant. It is further contended that, there was an oral partition in the family and accordingly, sought for dismissal of the suit. 7. The appellants have filed I.A.No.1/2018 and produced two documents i.e., certified copies of the Partition Deed dated 14.09.1973 and the proceedings of the order dated 04.04.2013 by Revenue Divisional Officer, Penukonda. - 5 - HC-KAR NC: 2025:KHC:31213 RSA No. 413 of 2015 8. Based on the pleadings and record, the Trial Court has formulated the issues for its consideration. 9. In order to establish their case, the plaintiffs have examined four witnesses as P.W.1 to P.W.4 and got marked twenty four documents as Exs.P1 to P24. The defendant has examined six witnesses as D.W.1 to D.W.6 and got marked nine documents as Exs.D1 to D9. 10. The Trial Court after considering the material on record, by judgment and decree dated 13.03.2014 dismissed the suit of the plaintiffs. Feeling aggrieved by the same, the plaintiffs have preferred R.A.No.87/2014 and same was resisted by the defendant. The First Appellate Court after re-appreciating the material on record by judgment and decree dated 20.11.2014 allowed the appeal in part, holding that the plaintiffs are entitled for 1/4 share each in item No.1 of the suit schedule property, confirmed the judgment and decree passed by the Trial Court in respect of the remaining suit items. - 6 - HC-KAR NC: 2025:KHC:31213 RSA No. 413 of 2015 Feeling aggrieved by the same, the plaintiffs have preferred this Regular Second Appeal. 11. This Court vide order dated 28.06.2018 has formulated the following issues for consideration: "i) Whether the first appellate court erred in holding that the appellants have not proved that item Nos.3 to 7 of the suit schedule properties are joint family properties and therefore available for partition, contrary to the evidence on record? ii) Whether the Courts below erred in not granting relief to the third defendant in view of the amended provisions of Section 6 of the Hindu Succession Act, 1956 and Section 6A of the Karnataka (Amendment) Act, 1990 and there being no registered partition or decree of the Court after the registered partition deed dated 05.09.1973? iii) Whether the Courts below erred in concluding that item No.2 of the suit schedule property was separate property of late G.Thimmappa?" - 7 - HC-KAR NC: 2025:KHC:31213 RSA No. 413 of 2015 12. Heard Sri. Y.K. Narayana Sharma, learned counsel appearing for the appellants and the respondent served remained absent. 13. Sri. Y.K. Narayana Sharma, learned counsel appearing for the appellants invited the attention of the Court to Genealogical Tree of the parties and submitted that, there is no dispute with regard to the fact that, the suit schedule properties are the joint family properties of late Sri. G. Thimmappa and on his demise, the properties have to be divide between the plaintiffs and the defendant. In this regard, inviting the attention of the Court to the findings recorded by the Trial Court, it is submitted by Sri. Y.K. Narayana Sharma, learned counsel appearing for the appellants that, the defendant has not produced any material to establish that, the division of properties is as per metes and bounds by the members of the joint family of the plaintiffs and the defendant and therefore contended that, judgment and decree passed by the Trial Court requires interference of this Court. - 8 - HC-KAR NC: 2025:KHC:31213 RSA No. 413 of 2015 14. It is also argued by the learned counsel appearing for the appellants by referring to the findings recorded by the First Appellate Court stating that, the First Appellate Court has committed an error in granting relief to the plaintiffs only in respect of item No.1 of the schedule property and the remaining items of the properties has been rejected, hence, it requires interference of this Court. 15. It is further argued by the learned counsel appearing for the appellants with regard to the execution of the Gift Deed dated 18.02.2005 said to have been executed by the father of the defendant in favour of the defendant and submitted that, the father of the defendant has no authority under law to execute the Gift Deed in favour of the defendant as the said property is the ancestral property of late Sri. G. Thimmappa. 16. In the light of the submission made by the learned counsel appearing for the appellants, it is relevant to extract the Genealogical Tree of the parties, as under: - 9 - HC-KAR NC: 2025:KHC:31213 RSA No. 413 of 2015 GENEALOGICAL TREE G. Thimmappa (Died) Smt. Nagalakshmamma @ Nagarathnamma (Wife) Vijayalakshmi Nagaraju Thyagaraju 17. Perusal of the Genealogical Tree would indicate that, late Sri. G. Thimmappa and plaintiff No.1 had three children i.e., plaintiff Nos.2, 3 and the defendant. 18. On careful examination of the oral and documentary evidence produced before the Trial Court would indicate that, the plaintiffs have claimed right over the properties as the suit properties are the joint family properties of late Sri. G. Thimmappa. In this regard, the findings recorded by the Trial Court requires to be set aside in this appeal as the suit schedule properties are said to have been acquired by late Sri. G. Thimmappa as per the registered Partition Deed dated 14.09.1973 - 10 - HC-KAR NC: 2025:KHC:31213 RSA No. 413 of 2015 (Document No.1 in I.A.No.1/2018) between the father of the defendant and his brothers. 19. In that view of the matter, I am of the view that, the plaintiffs are entitled for a share in the suit schedule properties. It is also to be noted that, though the defendant has raised plea about the earlier oral partition, however, the same has not been proved before the Trial Court by a cogent evidence. No document has been produced by the defendant to prove the earlier oral partition that is said to have been held between the plaintiffs and the defendant after the demise of Sri. G. Thimmappa. In that view of the matter, the Trial Court has committed an error in dismissing the suit. 20. On careful examination of the findings recorded by the First Appellate Court would indicate that, the First Appellate Court has partly allowed the appeal holding that, the plaintiffs are entitle for 1/4 share each in item No.1 of the suit schedule property and however, declined to grant - 11 - HC-KAR NC: 2025:KHC:31213 RSA No. 413 of 2015 in respect of the remaining suit schedule properties are concerned. In that view of the matter, taking into consideration findings recorded by the First Appellate Court, I am of the view that, the First Appellate Court has committed an error and not re-appreciating the material on record as referred under Order 41 Rule 31 of Code of Civil Procedure. In the light of the judgment of Hon'ble Supreme Court in the case of SANTHOSH HAZARI VS. PURUSHOTHAM TIWARI reported in (2001) 3 SCC 179, undoubtedly, father of the defendant and plaintiff Nos.2 and 3 had acquired the property as per the registered Partition Deed dated 14.09.1973 in the partition took place between the father of the defendant and his brothers. In that view of the matter, the suit schedule properties have to be considered as ancestral properties of the plaintiff Nos.2, 3 and the defendant. 21. In that view of the matter, taking into consideration the findings recorded by the First Appellate Court requires interference as the First Appellate Court has - 12 - HC-KAR NC: 2025:KHC:31213 RSA No. 413 of 2015 not properly re-appreciated the material on record with regard to the acquisition of properties by the father of the defendant as per the partition that took place in the year 1973. It is also to be noted that, the First Appellate Court granted relief to the plaintiffs only in respect of item No.1 of the suit schedule properties and has accepted the Gift Deed said to have been executed by the father of the defendant in favour of the defendant as per Ex.D1. It is to be noted that, the suit schedule properties are the ancestral properties of the father of the defendant and therefore, same has to be divided among the children of late Sri. G. Thimmappa and therefore, the First Appellate Court has not properly reassessed the evidence on record. Accordingly, the substantial question of law framed above favours the plaintiffs and the plaintiffs are entitled for 1/3 share each in the suit schedule properties since the mother of plaintiff Nos.2 and 3 - Smt. Nagalakshmamma @ Nagarathnamma (plaintiff No.1) died on 25.08.2015. - 13 - HC-KAR NC: 2025:KHC:31213 RSA No. 413 of 2015 22. It is also to be noted that, the plaintiffs have filed I.A.No.1/2018 under Order 41 Rule 31 of Code of Civil Procedure and have produced two documents. These documents are relevant for the purpose of adjudication of the dispute between the parties since, the father of plaintiff Nos.2, 3 and the defendant acquired the suit schedule properties in terms of the registered Partition Deed said to have been produced by the appellant in the said application. Accordingly, I.A.No.1/2018 is allowed and the documents have been accepted. 23. Accordingly, I pass the following; ORDER i) This Regular Second Appeal is allowed. ii) Judgment and decree dated 20.11.2014 passed in R.A.No.87/2014 by the Additional Senior Civil Judge and JMFC, Chikkaballapura is hereby set aside partly in respect of item Nos.2 to 7. - 14 - HC-KAR NC: 2025:KHC:31213 RSA No. 413 of 2015 iii) Judgment and decree dated 13.03.2014 passed in O.S.No.143/2010 by the Civil Judge, Bagepalli is hereby set aside. iv) The suit of the plaintiffs in O.S.No.143/2010 is hereby decreed holding that plaintiff Nos.2, 3 and the defendant are entitled for 1/3 share each in the suit schedule properties. SD/- (E.S.INDIRESH) JUDGE KLV List No.: 1 Sl No.: 40 CT: BHK