- 1 - HC-KAR NC: 2025:KHC:30393 RSA No. 287 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL No.287 OF 2021 (PAR) BETWEEN: 1. SMT YASHODA W/O SIDDLINGAPPA, AGED ABOUT 34 YEARS, R/A 1ST WARD, NEAR KECHSAVA TEMPLE, NEAR HOUSE OF PANI DOCTOR, HUVVINA HADAGALI, BELLARY DISTRICT. 2. SMT.GOWRAMMA W/O NAGARAJAPPA, AGED ABOUT 39 YEARS, R/A RAMPURA, KADAJJI POST -577201 DAVANGERE TALUK 3. SMT.SHAKUNTHALAMMA W/O LATE CHANDRAPPA KAYAKADA, AGED ABOUT 50 YEARS, BADA VILLAGE -577201, DAVANAGERE TALUK …APPELLANTS (BY SRI V B SIDDARAMAIAH, ADVOCATE) AND: 1. SRI GUDDAPPA S/O RUDRAPPA KAYAKADA, AGED ABOUT 46 YEARS, BADA VILLAGE- 577201, DAVANAGERE TALUK Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30393 RSA No. 287 of 2021 2. HALESHAPPA S/O RUDRAPPA KAYAKADA, AGED ABOUT 37 YEARS, BADA VILLAGE 577201, DAVANAGERE TALUK …RESPONDENTS (RESPONDENTS Nos.1 AND 2-SERVED) THIS RSA IS FILED UNDER ORDER XLII RULE 1 R/W SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 09.10.2017 PASSED IN R.A.NO.29/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, DAVANAGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 05.01.2017 PASSED IN O.S.NO.471/2011 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE, DAVANGERE. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri V.B.Siddaramaiah, learned counsel for the appellants. 2. Present appeal came to be admitted to consider the following substantial question of law: “Whether both the Courts have committed an error in granting 1/15th share instead of 1/5th share?” 3. Appellants are the daughters of common propositus Rudrappa Kayakada who are the sisters of respondent Nos.1 and 2. They filed a suit for partition in O.S.No.471/2011 on the - 3 - HC-KAR NC: 2025:KHC:30393 RSA No. 287 of 2021 file of the Addl. Civil Judge, Davanagere, against the respondents who are the defendants. 4. Appellants claimed that they are having equal share in the suit schedule properties and their demand for equal share had been denied by the defendants. The suit properties are described as under: SCHEDULE 1. The agricultural land bearing Re.Sy.No.173 of Bada village, Mayakonda Hobli, Davanagere Taluk, measuring 1 acre x 36 guntas and assessed at Rs.1.98 and bounded as follows: East : lands of Bindamma, West : lands of Suresh and Siddalingappa, North : lands of Siddalingappa, South : lands of Veerabhadrappa. 2. The agricultural land bearing Re.Sy.No.173/2, Bada village, Mayakonda Hobli, Davanagere Taluk, measuring 32 guntas assessed at Rs.0.86 and bounded as follows: East : lands of Thimmanna, West : land of Shivalingappa, North : lands of Mallikarjuna, South : lands of Rajappa. - 4 - HC-KAR NC: 2025:KHC:30393 RSA No. 287 of 2021 3. The property bearing khatha No.152, property No.151, situated at Bada village in Davanagere Taluk and bounded as follows: East : property of Thippanna, West : propperty of Veeresh, North : property of Ningappa, South : road. 4. The property bearing katha No.777, property No.177/AP, extent 03 guntas situated at Bada village, Davanagere Taluk, and bounded as follows: East : property of Revajja, West : High School play ground, North : property of Mallikarjuna, South : property of Manjappa. 5. The property bearing katha No.778, property No.177/AP1 measuring 03 guntas situated at Bada village, Davanagere Taluk and bounded by: East : property of Revajja, West : High School Play ground, North : Property bearing No.778, South : property of Manjappa. 5. Pursuant to the suit summons, defendants entered appearance and filed detailed written statement wherein, they admitted the relationship, but denied other plaint averments. - 5 - HC-KAR NC: 2025:KHC:30393 RSA No. 287 of 2021 6. Defendants specifically contended that plaintiffs are not joint family members and suit schedule properties had lost the nature of joint family properties, after the death of their father Rudrappa Kayakada. 7. Defendants also contended that, out of their hard work and income, they purchased the suit schedule properties in the name of their father out of reverence. 8. After the death of their father viz., Rudrappa Kayakada, they got transferred the revenue entries in their names, and plaintiffs had consented for such transfer of revenue entries having known the fact that suit schedule properties were acquired in the name of their father out of respect, love and affection, and consideration thereof was paid by the defendants. 9. Based on the rival contentions of the parties, learned Trial Judge raised the following issues: (i) Whether the plaintiffs proves that the suit schedule properties are the joint family properties of the plaintiffs and defendants? - 6 - HC-KAR NC: 2025:KHC:30393 RSA No. 287 of 2021 (ii) Whether the plaintiffs are entitled to 3/5th share in the suit schedule properties? (iii) Whether the plaintiffs are entitled to mesne profits? (iv) Whether the plaintiffs are entitled to the relief sought? (v) What order or decree? 10. In order to prove the case of the plaintiffs, plaintiff No.2 viz., Smt.Gowramma got examined herself as P.W.1 and placed on record nine documentary evidence which were exhibited and marked as Exs.P.1 to P.9 comprising of RTCs, property tax demand registers, tax paid receipts and mutation extract. 11. As against the evidence placed on record by the plaintiffs, defendant No.1-Guddappa got examined himself as D.W.1 and two witnesses, viz., Thippanna and Govindappa were examined as D.Ws.2 and 3. They did not place any documentary evidence on record to substantiate that it is out of the earnings of defendants the suit schedule properties were acquired in the name of Rudrappa Kayakada, in token of respect, love and affection. - 7 - HC-KAR NC: 2025:KHC:30393 RSA No. 287 of 2021 12. Learned Trial Judge after conclusion of recording of evidence, taking note of the fact that the relationship of the plaintiffs with the defendants having not been disputed and Rudrappa Kayakada having died intestate, appreciated the material evidence on record and decreed the suit of the plaintiffs granting 1/15th share to each of the plaintiffs. 13. Being aggrieved by the same, plaintiffs filed an appeal in R.A.No.29/2017 on the file of the Prl. Senior Civil Judge, Davanagere. 14. Learned Judge in the First Appellate Court, after securing the records, heard the arguments of the parties and on re- appreciating the material evidence on record and the factual aspects, by the judgment dated 09.10.2017 dismissed the appeal of the plaintiffs confirming the judgment and decree passed by the Trial Court. 15. Being further aggrieved by the same, plaintiffs are before this Court. 16. Sri V.B.Siddaramaiah, learned counsel for the appellants, reiterating the grounds urged in the appeal memorandum - 8 - HC-KAR NC: 2025:KHC:30393 RSA No. 287 of 2021 contended that, both the Courts have not properly appreciated the position of law and granted meager share to the plaintiffs following the dictum of the Hon’ble Apex Court in the case of Prakash and others vs. Phulavati and others reported in (2016)2 SCC 36 and sought for decreeing the suit in its entirety, granting equal share, by following the principles of law enunciated by the Hon’ble Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma reported in (2020)9 SCC 1. 17. Respondents who are defendants are served with notice of the appeal, but have remained absent before this Court. 18. In the light of the arguments put forth on behalf of the appellants, this Court perused the material on record meticulously. 19. On such perusal of the material on record, it is crystal clear that relationship between plaintiffs and defendants is not in dispute. Further, suit schedule properties being ancestral properties is also established by the plaintiffs by placing necessary evidence on record. - 9 - HC-KAR NC: 2025:KHC:30393 RSA No. 287 of 2021 20. Defendants, no doubt, tried to controvert the pleadings of the plaintiffs in disputing the nature of the properties by contending that, it is out of their hard work, suit schedule properties were acquired in the name of their father-Rudrappa Kayakada out of respect, love and affection. But no material evidence is placed on record. 21. However, evidence of D.Ws.1 to 3 did not advance their case of the defendants as is held by the learned Trial Judge in the impugned judgment itself. 22. It is pertinent to note that defendants did not challenge the nature of the properties nor the share granted to the plaintiffs by filing cross objection or cross appeal in the appeal filed by the plaintiffs. 23. Therefore, finding recorded by the Trial Court confirmed by the First Appellate Court as to nature of the properties as joint family properties has become final insofar as defendants are concerned. - 10 - HC-KAR NC: 2025:KHC:30393 RSA No. 287 of 2021 24. This would take this Court to the next point urged on behalf of the appellants viz., what is proper share that the plaintiffs are entitled to. 25. Admittedly, both the Courts placed reliance on the principles of law enunciated by the Hon’ble Apex Court in the case of Prakash supra. 26. The principles of law enunciated in the said case especially right of daughters has been altered in view of the pronouncement of judgment in the case of Vineeta Sharma supra, wherein, it has been held as under: “137. Resultantly, we answer the reference as under: 137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities. 137.2. The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004. - 11 - HC-KAR NC: 2025:KHC:30393 RSA No. 287 of 2021 137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005. 137.4. The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. 137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.” - 12 - HC-KAR NC: 2025:KHC:30393 RSA No. 287 of 2021 27. Therefore, a case is made out by the appellants/plaintiffs to modify the shares allotted by the Trial Court confirmed by the learned Judge in the First Appellate Court by granting equal shares to plaintiffs. 28. Accordingly, the substantial question of law framed by this Court at the time of admitting the appeal is answered in the affirmative in favour of the appellants. 29. Consequently, the following: ORDER (i) Appeal is allowed. (ii) Suit of the plaintiffs is decreed as prayed for granting 1/5th share to the plaintiff Nos.1 to 3 and defendant Nos.1 and 2. (iii) Office to pass the modified decree, accordingly. Sd/- (V SRISHANANDA) JUDGE kcm List No.: 1 Sl No.: 61