- 1 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 9TH DAY OF JULY 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.100338/2020 (PAR) BETWEEN: 1. SMT. DEVAKKA W/O. PUTTAPPA JAGGIN, AGE: 70 YEARS, OCC: HOUSEHOLD WORK, R/O: NAGARAMADAVU, TQ: SHIRHATTI, DIST: GADAG. 2. SRI. FAKKIRESH S/O. PUTTAPPA JAGGIN, AGE: 31 YEARS, OCC: AGRL., R/O: NAGARAMADAVU, TQ: SHIRHATTI, DIST: GADAG. 3. SRI. MALATESH S/O. PUTTAPPA JAGGIN, AGE: 29 YEARS, OCC: AGRL., R/O: NAGARAMADAVU, TQ: SHIRHATTI, DIST: GADAG. 4. SRI. HANUMANTAPPA S/O. PUTTAPPA JAGGIN, AGE:25 YEARS, OCC: AGRL., R/O: NAGARAMADAVU, TQ: SHIRHATTI, DIST: GADAG. 5. SMT. FAKKIRAVVA D/O. PUTTAPPA JAGGIN, AGE:35 YEARS, OCC: AGRL., R/O: NAGARAMADAVU, TQ: SHIRHATTI, DIST: GADAG. …APPELLANTS (BY SRI. L. T. MANTAGANI, ADVOCATE) AND: SMT. GANGAVVA KOM. SHIDDAPPA KURABAR, AGE:63 YEARS, OCC: HOUSEHOLD WORK, R/O: CHINCHALI, TQ: GADAG, DIST: GADAG. …RESPONDENT (BY SRI. ABHISHEK L. KALLED & SRI. SANTOSH D. NARAGUND, ADVOCATES) Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED THE COURT OF SENIOR CIVIL JUDGE AND JMFC LAXMESHWAR, IN R.A.NO.31/2018 DATED 4TH FEBRUARY 2020 REVERSING THE JUDGMENT AND DECREE DATED 18.09.2018 PASSED BY THE COURT CIVIL JUDGE AND JMFC LAXMESHWAR IN O.S.NO.175/2014, ALLOW THE REGULAR SECOND APPEAL WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC., THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This appeal is filed by defendants in OS No.175/2014, being aggrieved by the judgment and decree dated 04.02.2020 passed in RA.No.31/2018 on the file of the Senior Civil Judge and JMFC, Laxmeshwar (for short “the First Appellate Court”), by which the First Appellate Court, while partly allowing the said appeal modified the judgment and decree dated 18.09.2018 passed in O.S.No.175/2014 on the file of the Civil Judge and JMFC, Laxmeshwar, (for short “the trial Court”), and held that the plaintiff is entitled for ½ share in the land bearing No. Sy.Nos.32/1 and 32 /2 s ituated at Nagarmandavu village in Shirahatti taluka and - 3 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 declined to grant any share in the property bearing VPC No. 237 of Nagarmandavu village, Shirahatti taluka. 2. The above suit in OS No.175/2014 is filed by the plaintiff contending that she and defendant No.1 are the daughters born to one Aneppa Aneppanavar and Bharmavva. That Aneppa Aneppanavar passed away prior to 1955. Defendant Nos.2 to 4 are the sons and defendant No.5 is the daughter of defendant No.1. That after the demise of their parents, plaintiff and defendant No.1 became entitled for equal share in land bearing Sy.No.32/1 measuring 4 acres and Sy.No.32/2 measuring 4 acres and in the house property bearing VPC No.237 of Nagarmandavu village (suit properties). That defendant No.1 on the basis of created documents had got her name mutated in respect of all the suit properties and started to deny the legitimate share of the plaintiff. Hence, the suit. 3. Defendant No.4 in the written statement admitted the relationship and also admitted that their - 4 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 parents passed away prior to 1955. It is contended that land in Sy.No.32/1 belonged to their mother Bharmavva to which the plaintiff has no share, right, title and interest, as she had relinquished her half share in favour of defendant No.1 in the year 1955 by submitting a varadi. That the plaintiff was not concerned with land in Sy.No.32/2 and the house property in VPC No.237 as the said properties absolutely belonged to the husband of defendant No.1 and father of defendant Nos.2 to 5. Hence, sought for dismissal of the suit. 4. The trial Court framed from the following issues and additional issues: 1) zÁªÁ D¹ÛUÀ¼ÀÄ ªÀÄÈvÀ D£É¥Àà D£É¥Àà£ÀªÀgÀ JA§ÄªÀgÀ D¹ÛUÀ¼ÉAzÀÄ ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀ¼ÉÃ? 2) zÁªÁ D¹ÛUÀ½UÉ ¥ÀæwªÁ¢AiÀÄgÀÄ PÁ£ÀÆ£ÀÄ ¨Á»gÀªÁV 'qÀ' £ÀA.683 gÀ ¥ÀæPÁgÀ vÀªÀÄä ºÉ¸Àj£À°è SÁvÉ ªÀiÁrPÉÆArgÀĪÀgÀÄ JA§ÄªÀÅzÀ£ÀÄß ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀ¼ÉÃ? 3) zÁªÁ D¹Û j.¸À. £ÀA.32/2 ªÀÄÈvÀ ¥ÀÅlÖ¥Àà §¸À¥Àà dVΣÀ FvÀ£À ¸ÀéAiÀiÁfðvÀ D¹Û JA§ÄªÀÅzÀ£ÀÄß ¥ÀæwªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÉÃ? 4) ªÁ¢AiÀÄÄ ªÁzÀ ¥ÀvÀæzÀ°è PÉýgÀĪÀAvÉ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀð¼ÉÃ? - 5 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 5) AiÀiÁªÉ DzÉñÀ CxÀªÁ rQæ? ºÉZÀÄѪÀj «ªÁzÁA±ÀUÀ¼ÀÄ : 1) zÁªÁ D¹Û UÁæªÀÄ ¥ÀAZÁAiÀÄw £ÀA.237 D¹ÛAiÀÄÄ ¦vÁæfðvÀ D¹Û JA§ÄªÀÅzÀ£ÀÄß ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀ¼ÉÃ? 5. Plaintiff examined herself as PW1 and got 5 documents marked as Exs.P1 to P13. Three witnesses have been examined as DW1 to DW3 and got 9 documents marked as Exs.D1 to D9. 6. The trial Court, upon appreciation of the evidence, answered issue No.1 partly affirmative and issue Nos.2 to 4 and additional issue No.1 in the negative and consequently dismissed the suit. 7. Plaintiff being aggrieved by the judgment and decree passed by the trial Court preferred an appeal in R.A. No.31/2018 before the First Appellate Court. 8. The First Appellate Court, based on the pleadings and evidence, framed the following points for its consideration: - 6 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 1. Whether the appellant has made out sufficient grounds to believe that trial court has committed error in passing the judgment in O.S.no.175/2014 and which needs inference by this court? 2. What Order or decree? 9. On re-appreciation, answered point No.1 partly in the affirmative and consequently, modified the judgement and decree passed by the trial Court holding that the plaintiff being entitled for her half share in land in Sy.Nos.32/1 and 32/2 of Nagarmandavu village and declined to grant any share to the plaintiff in the house property bearing VPC No.237 of Nagarmandavu village. Being aggrieved by the same, defendants are before this court in this appeal. 10. This Court by order dated 24.11.2021 admitted the present appeal to consider following substantial questions of law: “Whether the First Appellate Court is justified in granting ½ share to the plaintiff in Sy.Nos.32/1 and 32/2 of Nagarmandavu village of Shirahatti taluka?” - 7 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 11. The learned counsel for the appellants/defendants along with appeal has filed an application in IA No.1/2024 under Order 41 Rule 27 CPC seeking production of additional document namely a copy of registered deed of sale dated 22.09.1953 purportedly executed by Bharmavva wife of Aneppa Aneppanavar in favour of Puttappa Basappa Jaggin @ Jekinakatti. 12. The learned counsel for the appellants justifying the judgement and decree passed by the Trial Court and questioning the judgment and decree passed by the First Appellate Court submits that the suit properties originally belonged to the father of the plaintiff and defendant No.1 who had passed away prior to coming into force of Hindu Succession Act, 1956. That in terms of provisions of Section 3 of Hindu Women's Rights to Property Act 1937, only widow and sons are entitled for share in the property left behind by a male Hindu and daughters did not have any share. That the mother of the plaintiff and defendant No.1, namely, Bharmavva succeeded to the property as a widow. - 8 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 As such, the plaintiff and defendant No.1 did not have any share, right title and interest in the suit properties which admittedly belonged to their father. That Bharmavva mother of the plaintiff and defendant No.1 had executed a deed of sale 22.09.1953 conveying property in Sy.No.32/2 in favour of Puttappa the husband of defendant No.1 which was evidenced by mutation entry in M.E.No.683 produced at Ex.D10. He submits that the plaintiff subsequently in terms of Waradi submitted by her as per Ex.D4 had relinquished her share, right title and interest in the land bearing Sy.No.32/1 in favour of defendant No.1. The plaintiff has not produced any documents to show the same being the family property. As such, he submits that the plaintiff has no share, right title and interest in any of the suit item properties and the trial Court had therefore dismissed the suit of the plaintiff which ought not to have been interfered and reversed by the First Appellate Court. 13. In support of the application filed for production of additional documents the learned counsel submits that - 9 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 defendant No.1 in the written statement has pleaded with regard to sale of land in Sy.No.32/2 by their mother in favour of husband of defendant No.1 and the said transaction has been reflected in the mutation register extract at Ex.D10. He submits that defendant was under bonafide belief regarding sufficiency of the said evidence and therefore did not produce the sale deed and since the First Appellate Court has reversed the judgement and decree for non production of deed of conveyance, namely, the sale deed, defendant No.1 applied and obtained certified copy recently and therefore, the application is filed seeking production of additional document. He submits if the said application is not allowed hardship and irreparable prejudice will be caused to defendant No.1. Hence, seeks for permission to produce the additional document. 14. Per contra, learned counsel appearing for defendant No.1 submits that the trial Court had committed illegality in dismissing the suit without adverting to the facts and the law applicable which has been set at right by the - 10 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 First Appellate Court. He refers to Sub Section (3) of Section 3 of the Hindu Women's Right to Property Act 1937 and submits that under the said provision a widow was granted only limited right. Therefore, Bharmavva being the widow of Aneppa Anneppanavar had no right title and interest to convey the property in favour of husband of defendant No.1. He further refers to Sections of 14 of the Hindu Succession Act, 1956 and submits that the said limited estate blossomed into absolute estate of Bharmavva, as such, upon her demise plaintiff and defendant No.1 being a daughter became entitled to equal share in terms of Section 15 of the Hindu Succession Act. As regards the relinquishment of her share in land in Sy.No.32/1 purportedly made by the plaintiff in favour of defendant No.1 in terms of document at Ex.D4, the learned counsel submits that the said document has been allegedly executed on 14.08.1973 that is after coming into force of Hindu Succession Act 1956 and the said document is also inadmissible in view rigorous Section 17 of the Indian Registration Act. Thus, he submits that the First Appellate - 11 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 Court was justified in modifying the judgment and decree passed by the trial Court and decreeing the suit as noted. He submits that substantial question of law needs to be answered in the affirmative and in favour of plaintiff. Hence, he seeks for dismissal of the appeal. 15. Heard. Perused the records. 16. Before adverting to the merits of the case, it is necessary to adjudicate upon the application filed by the appellant under Order 41 Rule 27 of the CPC. The grounds for the production of additional documents are governed under the said provisions, which read as under: “27. Production of Additional Evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or - 12 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. 17. Paragraph Nos.3 and 4 of the affidavit accompanying the said application read as under: 3. That, the first appellate Court proceeded to reverse the judgment and Decree of the Trial Court holding that, the mother of the plaintiff sold the suit property Sy.No.32/2 in favour of one deceased Puttappa / husband of Defendant No.1 only to make some favouritism to Defendant No.1. However, the defendants during the Course of the Trial in order to show that, the land bearing Sy.No.32/2 is self acquired property of deceased Puttappa Jaggin produced the Copy of the M.E.No.683 vide Ex-D10, which came to be mutated based on the Registered Sale Deed. 4. That, the Sale deed was registered on 22-9-1953 since the original copy could not get during the course of recording the evidence of the Defendants, the understanding of the defendants was since the mutation Entry No.683 Vide Ex-D10 was based on the Sale Deed, hence, it could be sufficient, under such wrong notion, the defendants could not applied for the Certified copy of the Registered Sale. However, after filing of the above Regular - 13 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 Second Appeal, it was suggested to get the Certified copy of the Sale Deed. Under such circumstance, the appellants are producing the certified copy of the Registered sale Deed. 18. A perusal of the aforesaid contents of the affidavit reveals that defendant No.1 did not make any effort to produce the documents either before the trial Court or the First Appellate Court. Therefore, the first requirement of clause (a) of sub-rule (1) of Rule 27 of the CPC is not satisfied. It is not the case of defendant No.1 that the documents now sought to be produced was either not within his knowledge or his reach despite the exercise of due diligence. On the contrary, the affidavit indicates that defendant No.1 was under the impression that the mutation entry produced before the trial Court as per exhibit D10 was sufficient. Hence, the requirement under clause (aa) of sub-rule (1) of Rule 27 of the CPC also not fulfilled. The only other ground for the production / acceptance of additional documents would be if the Appellate Court requires such documents to enable it to pronounce the judgment. Another aspect to be considered is that the document now sought to be produced is a purported certified copy of the sale deed dated 22.09.1953. - 14 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 19. Defendant No.1 has not filed the written statement. There is no plea in the written statement filed by defendant No.4 and defendant No.3 regarding alienation made by Bharmavva in favour of Puttappa, the husband and father respectively of defendant Nos.1 to 5. There is no foundational pleading regarding the whereabouts of the original deed of sale, which is a condition precedent for production of certified copy, secondary evidence. Nevertheless, a perusal of the additional document now sought to be produced which is a purported certified copy of the sale deed dated 22.09.1953, reveals that the same neither bears the date nor the attestation/certification of the certifying authority. It is not clear as to when and from where the said certified copy has been obtained. No explanation of any nature is provided either with regard to whereabouts of the original document or with regard to authenticity of the certified copy. In view of the aforesaid facts and circumstance, this Court is not convinced to permit the appellant / defendant No.1 to produce the additional document. Accordingly, I.A. No.1 of 2024 is rejected. 20. Now adverting to the merits of the case, the plaintiff being the sister of defendant No.1 both having been - 15 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 born to one Aneppa Aneppanavar and Bharmavva is not in dispute. Suit Item Nos.1 and 2 belonging to Aneppa Aneppanavar is also not in dispute. Admittedly, Aneppa Aneppanavar passed away prior to 1956. The law that was then prevalent was the Hindu Women's Rights to Property Act, 1937. Section 3 of the said Act reads as under: Devolution of property (1) When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow, all his widows together, shall, subject to the provisions of sub- section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son: Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a sons son if there is surviving a son or sons son of such predeceased son: Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son. (2) When a Hindu governed by any school of Hindu law other than the Dayabhaga School or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had. - 16 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 (3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu womans estate, provided however that she shall have the same right of claiming partition as a made owner. (4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends to a single heir or to any property to which the Indian Succession Act, 1925, applies. 21. Thus Bharmavva being the widow acquired only limited interest in respect of the suit schedule properties as provided under the provisions of Sub-Section (3) of Section 3 of the Act, 1937. Assuming said Bharmavva had indeed executed a deed of sale on 22.09.1953 as claimed by defendants, as noted above, Bharmavva, the widow of Aneppa Aneppanavar, who held only a limited estate, could not have lawfully alienated the property in favour of the husband of defendant No.1, inasmuch as one cannot convey what one does not possess. Therefore, even if such a deed of sale was executed, it could not have created a valid or better title in favour of the husband of defendant No.1. It may also be relevant to note that a widow with limited - 17 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 interest could transfer such interest, subject to satisfaction of necessity for such alienation. No such pleading or material evidence is placed on record by the defendants either. As already noted, it is only defendant Nos.3 and 4 who have filed the written statement claiming land in Sy.No.32/2 to be the self acquired properties of their father Puttappa without giving any particulars whatsoever. 22. Though the First Appellate Court declined to accept the contention of defendant No.1 regarding valid conveyance on the ground that the same was executed out of favouritism, this Court declines to accept the said contention, for the aforesaid reason of Bharmavva not possessing absolute right to convey the property in Sy.No.32/1 and there being any pleading or proof regarding alienation for necessity. 23. It is also necessary to note that Aneppa Aneppanavar and Bharmavva did not have any male issue. That though daughters did not have any share in the property under the Act 1937, the conveyance if any being - 18 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 defective, and in the absence of any ratification/confirmation of such conveyance by the daughter who are the reversioners, after coming into force of section 14 of the Hindu Succession Act 1956 the limited interest blossomed into absolute right of the widow. Therefore, in the natural course of events, the plaintiff and defendant No.1 would have inherited the estate of Bharmavva in equal shares, in accordance with Section 15 of the Hindu Succession Act. 24. With regard to the claim of defendant No.1 that the plaintiff had relinquished her share, right, title and interest in the land bearing Sy.No.32/1 thorough the document marked as Ex.D4, dated 14.08.1972, the same cannot be accepted. Firstly, exhibit D4 is an unregistered document, and under Section 17 of the Indian Registration Act, any transaction creating or extinguishing any right, title and interest in any immovable property valued at more than Rs.100/- shall be executed only through a registered instrument. Since the said mandatory requirement has not - 19 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 been fulfilled, the document at exhibit D4 cannot be construed as having created any right, title, or interest in favour of defendant No.1, nor as having extinguished or divested any such rights from the plaintiff. Reliance placed on by defendants on the revenue entries based on these transactions / documents is also misplaced, as the revenue entries do not create or confer any right, title, or interest in respect of immovable property. 25. For the aforesaid reasons and analysis, the substantial question of law raised in the above appeal is answered accordingly. 26. The First Appellate Court has committed no error in granting half share in suit item Nos.1 and 2 in favour of the plaintiff and defendant. Since no appeal has been filed by the plaintiff against the denial of any share in the remaining property by the First Appellate Court, or any material is place on record with regard to house property belonging to the father of plaintiff and defendant No.1 this - 20 - HC-KAR NC: 2025:KHC-D:8526 RSA No. 100338 of 2020 Court refrains from making any observation or passing any order in that regard. Sd/- (M.G.S. KAMAL) JUDGE VMB,VNP CT-ASC List No.: 1 Sl No.: 52