- 1 - HC-KAR NC: 2025:KHC-D:10477 RFA No. 100378 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 19TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI REGULAR FIRST APPEAL NO. 100378 OF 2025 (PAR/POS-) BETWEEN: 1. SMT. KOMALA W/O SURESH D, AGE. 39 YEARS, OCC. HOUSEHOLD WORK, R/O. D.NO.488, 14TH WARD, NISANI CAMP T.B.DAM, HOSAPETE-583225 TQ. HOSAPETE, DIST. VIJAYANAGAR. …APPELLANT (BY SRI. SHRIHARSH A. NEELOPANT, ADV) AND: 1. CHANDRASHEKHAR S/O GOVINDASWAMY AGE. 65 YEARS, OCC. AGRICULTURE, R/O. MUNIRABAD ROAD, T.B.DAM, HOSAPETE, TQ. HOSAPETE, DIST. VIJAYANAGAR-583225. 2. MANIKYAMMA C. W/O CHANDRASHEKHAR AGE. 50 YEARS, OCC. HOUSEHOLD WORK, R/O. 13TH WARD, MUNIRABAD ROAD, T.B. DAM HOSAPETE-583225 TQ. HOSAPETE, DIST. VIJAYANAGAR. 3. SMT. C. PARIMALA W/O CHANDRABABU AGE. 39 YEARS, OCC. HOUSEWIFE R/O. 13TH WARD, MUNIRABAD ROAD, T.B. DAM HOSAPETE-583225 TQ. HOSAPETE, DIST. VIJAYANAGAR. 4. SHASHIDHARA S/O CHANDRASHEKHAR AGE. 33 YEARS, OCC. AGRICULTURE R/O. 13TH WARD, MUNIRABAD ROAD, T.B. DAM HOSAPETE-583225 TQ. HOSAPETE, DIST. VIJAYANAGAR. 5. SMT. PALLAVI W/O HARSHA AGE. 31 YEARS, OCC. HOUSEHOLD WORK, R/O. MUNIRABAD ROAD, MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.08.30 12:21:01 +0530 - 2 - HC-KAR NC: 2025:KHC-D:10477 RFA No. 100378 of 2025 T.B.DAM, HOSAPETE, TQ. HOSAPETE, DIST. VIJAYANAGAR-583225. …RESPONDENTS (BY SRI. V.M. SHEELVANT, ADV FOR R1 AND V/O. DATED 19.08.2025, NOTICE TO R2 TO R5 ARE DISPENSED WITH) THIS RFA IS FILED UNDER SEC. 96 READ WITH ORDER 41 RULE 1 OF CPC., 1908, PRAYING TO SET ASIDE THE IMPUGNED AND DECREE DATED 21.07.2025 PASSED IN OS NO.112/2024 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, HOSAPETE ON IA NO.III FILED UNDER ORDER VII RULE 11 R/W SECTION 151 OF CPC AND DISMISS THE APPLICATION IN IA NO.III IN ITS ENTIRETY AND RESTORE THE SUIT IN OS NO.112/2024 IN THE ENDS OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) 1. This Appeal is filed by the appellant, challenging the order on IA No.III dated 21.07.2025 passed in OS No.112 of 2024 by the learned Principal Senior Civil Judge and JMFC, Hospete (‘Trial Court’ for short). 2. For convenience, the parties are referred to based on their rankings before the Trial Court. The appellant was the plaintiff and the respondents were the defendants. - 3 - HC-KAR NC: 2025:KHC-D:10477 RFA No. 100378 of 2025 3. Brief facts leading rise to the filing of this appeal are as follows: 4. The plaintiff filed a suit against the defendants for partition and separate possession of the suit schedule properties. It is the case of the plaintiff that the suit schedule ‘A’ property was acquired by her grandfather, late Govinda Swami, and after his demise, the property was mutated in the name of her father, who is defendant No.1. 5. The plaintiff further contended that suit schedule ‘B’ and ‘C’ properties were purchased by defendant No.1 from the income derived from suit schedule “A” property; the suit schedule “D” was also claimed as part of the family acquisition. Thus, invoking the doctrine of blending, the plaintiff contended that the suit schedule properties constituted the joint family properties and she being the daughter, is entitled to a share in the suit schedule properties by virtue of her - 4 - HC-KAR NC: 2025:KHC-D:10477 RFA No. 100378 of 2025 coparcenary right under Section 61 of the Hindu Succession (Amendment) Act, 2005. 6. The defendants filed the written statement and also filed I.A. No.III under Order VII Rule 11(a) of the Civil Procedure Code, 1908 (“CPC”) for rejecting the plaint on the ground that the plaintiff has not produced any records to establish that the suit schedule “A” property was owned and possessed by Govinda Swamy. 7. It is contended that the suit schedule “A” property is not the ancestral property and said Govinda Swamy had not purchased the suit schedule “A” property under a registered sale deed dated 05.04.1965. Hence, prays to reject the plaint. 1 Section 6. Devolution of interest in coparcenary property.(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, (a) by birth become a coparcener in her own right the same manner as the son; (b) have the same rights in the coparcenery property as she would have had if she had been a son; - 5 - HC-KAR NC: 2025:KHC-D:10477 RFA No. 100378 of 2025 8. The said application was opposed by the plaintiff and she has filed the written objections, contending that the suit schedule “A” property is the ancestral property and suit schedule “B” and “C” properties were purchased by defendant No.1 out of the income derived from the suit schedule “A” property. Hence, she contends that whether the suit schedule “A” property is the ancestral property or not is a matter of trial. Hence, she prays to reject the application. 9. The Trial Court, after hearing the learned counsel for the parties, allowed I.A. No.III with cost of ₹1,000/- and the plaint was rejected by exercising the power under Order VII Rule 11(a) of CPC. 10. The plaintiff, aggrieved by the order on I.A. No.III, filed this appeal. 11. Heard the arguments of the learned counsel for the plaintiff and the learned counsel for defendant No.1. - 6 - HC-KAR NC: 2025:KHC-D:10477 RFA No. 100378 of 2025 12. The learned counsel for the plaintiff submits that the plaintiff has pleaded in the plaint that the suit schedule “A” property is the ancestral property standing in the name of Govinda Swami. He died leaving behind defendant No.1 and the plaintiff as his legal heirs. He submits that suit schedule “B” and “C” properties were acquired by defendant No.1 out of the income derived from suit schedule “A” property. To ascertain whether the suit schedule “A” property is the ancestral property, it requires a trial. 13. The Trial Court without recording the evidence, has arrived at its finding that the plaintiff has not produced any records to establish that suit schedule “A” property is the ancestral property. He submits that to the Trial Court without looking into the contents of the pleadings in the plaint, has rejected the plaint. To buttress his arguments, he has placed a reliance on the judgments of the Hon'ble Supreme Court in the cases of Dahiben v. Arvindbhai - 7 - HC-KAR NC: 2025:KHC-D:10477 RFA No. 100378 of 2025 Kalyanji Bhanusali2 and Liverpool & London S.P. & I Asson. Ltd. v. M.V. Sea Success I and Anr3, wherein the Hon'ble Apex Court held that while considering an application for rejecting the plaint, the Court is required to see the contents of the plaint and not the contents of the written statement. In the instant case, the impugned order passed by the Trial Court is contrary to the proposition laid down by the Hon'ble Apex Court. Hence, on these grounds, he prays to allow the appeal. 14. Per contra, learned counsel for defendant No.1 submits that the plaintiff has filed a suit for partition and separate possession and the plaintiff has not produced any records to establish that suit schedule “A” property is the ancestral property of the plaintiff and defendants. He submits that in the absence of records, the suit filed by the plaintiff is not 2 (2020) 7 SCC 366 3 (2004) 9 SCC 512 - 8 - HC-KAR NC: 2025:KHC-D:10477 RFA No. 100378 of 2025 maintainable and the Trial Court was justified in passing the impugned order rejecting the plaint. Hence prays to dismiss the appeal. 15. Perused the records and considered the submissions of the learned counsel for the parties. 16. The point that arises for consideration are: (i) Whether the plaintiff proves that the Trial Court committed an error in rejecting the plaint without recording the evidence? (ii) What order or decree? Re-Point No.(i): 17. There is no dispute that the plaintiff has filed a suit for partition and separate possession against the defendants, contending that suit schedule “A” property was purchased by Govinda Swami under a register sale deed dated 05.04.1965. The said property is the ancestral property of the plaintiff and - 9 - HC-KAR NC: 2025:KHC-D:10477 RFA No. 100378 of 2025 the defendants and out of the income derived from suit schedule “A” property, other properties were purchased by defendant No.1. 18. Though the plaintiff has contended in the plaint that suit schedule “A” property is the ancestral property and other properties were purchased out of the income derived from suit schedule “A” property, the said fact has been denied by defendant No.1 by filing a written statement contending that when the suit schedule “A” property was purchased by Govinda Swami and after his death, the said property devolved upon defendant No.1 and thus, it becomes his self-acquired property and not an ancestral property. 19. 19. Therefore, to consider whether suit schedule “A” property is the ancestral or self-acquired property of Govinda Swamy, the matter requires trial. 20. The Trial Court has allowed the application for rejection of plaintiff solely on the ground that the - 10 - HC-KAR NC: 2025:KHC-D:10477 RFA No. 100378 of 2025 plaintiff has not produced any records to establish that suit schedule “A” property was the ancestral property. 21. As observed above, whether the suit schedule properties are the ancestral / joint family properties, the matter requires consideration and trial. At the initial stage, the plaint cannot be rejected without providing an opportunity to the plaintiff to establish that the suit schedule “A” property is the ancestral/joint family property. The procedure adopted by the Trial Court while passing the impugned order is illegal. 22. Further, while rejecting the plaint, the Court is required to see the contents of the plaint and not the contents of the written statement. The Trial Court, considering the contents of the affidavit filed by defendant No.1, has recorded a finding that the plaintiff has failed to establish that suit schedule “A” - 11 - HC-KAR NC: 2025:KHC-D:10477 RFA No. 100378 of 2025 property is not the ancestral property. The said findings recorded by the Trial Court is without any basis. 23. The impugned order passed by the Trial Court is liable to be set aside. In view of the above discussion, the point No.(i) for consideration is answered in the affirmative. Re-Point No.(ii): 24. Accordingly, I proceed to pass the following order: ORDER (i) This Regular First Appeal is allowed. (ii) Order on I.A. No.III dated 21.07.2025 passed in O.S. No.112 of 2024 by the Principal Senior Civil Judge and JMFC, Hospete is hereby set aside. (iii) I.A. No.III is rejected. (iv) O.S. No.112 of 2024 is restored to its original file. - 12 - HC-KAR NC: 2025:KHC-D:10477 RFA No. 100378 of 2025 (v) The Trial Court is directed to frame the issues and provide an opportunity to the parties to lead evidence and thereafter pass a judgment in accordance with law. (vi) No order as to the costs. (vii) The parties are directed to appear before the Trial Court on 27.10.2025 without awaiting any notice. (viii) In view of the disposal of the appeal, pending interlocutory applications, if any, stand disposed of. Sd/- (ASHOK S. KINAGI) JUDGE PA CT: BSB List No.: 1 Sl No.: 24