- 1 - RSA No. 100593/2023 RESERVED ON : 29.08.2025 PRONOUNCED ON : 10.09.2025 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 10TH DAY OF SPETEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA REUGLAR SECOND APPEAL NO.100593 OF 2023 BETWEEN 1 . NAGESH BIN HANUMANT NAIK AGE. 49 YEARS, OCC. AGRICULTURIST, 2 . MAHESH BIN HANUMANT NAIK AGE. 41 YEARS, OCC. AGRICULTURIST, BOTH ARE RESIDENT OF CHANDRANI, VANDOOR, TQ. HONNAVAR, DIST. UTTARA KANNADA. ...APPELLANTS (BY SRI. B. SHARANABASAWA, ADVOCATE) AND 1 . SMT. MADEVI W/O. HANUMANT NAIK AGE. 70 YEARS, OCC. HOUSEHOLD, 2 . CHANDRAKALA D/O. SHIVARAM NAIK AGE. 47 YEARS, OCC. HOUSEHOLD, 3 . BHARATI D/O. HANUMANT NAIK AGE. 45 YEARS, OCC. NOT KNOWN, 4 . GOURI D/O. HANUMANT NAIK AGE. 39 YEARS, OCC. NOT KNOWN, ALL ARE R/O. CHANDRANI, VANDOOR, TQ. HONNAVAR, DIST. UTTARA KANNADA. MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.09.11 10:35:52 +0530 - 2 - RSA No. 100593/2023 …RESPONDENTS (BY SRI. J.S. SHETTY, ADVOCATE FOR R1, R2 AND R4; R3-SERVICE HELD SUFFICIENT) THIS RSA FILED U/SEC.100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 14.02.2023 PASSED IN R.A.NO.01/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, AT HONNAVAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED.10.11.2020, PASSED IN O.S. NO.175/2015 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, AT HONAVAR, DECREEING THE SUIT FILED FOR PARTITION. IN THIS REGULAR SECOND APPEAL ARGUMENTS HAVING BEEN HEARD AND RESERVED ON 29.08.2025 AND COMING ON FOR “PRONOUNCEMENT OF ORDERS”, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) Appellants who are defendants before the trial Court, have preferred this second appeal against the Judgment and decree dated 10th November, 2020 passed by the Principal Civil Judge & JMFC, Honnavar in OS No.175 of 2015 (for short “the trial Court”), which is confirmed by the Senior Civil judge & JMFC, Honnavar in RA No.1 of 2021 dated 14th February 2023. 2. Parties herein are referred to as per their rank and status before the trial Court. - 3 - RSA No. 100593/2023 3. Brief facts leading to this appeal are that plaintiffs have filed suit for partition and separate position of 1/6th share each in the schedule property. It is stated in the plaint that plaintiffs and defendants constitute Hindu Joint Family. Defendants 1 and 2 are sons and Plaintiffs 2 to 4, are daughters of plaintiff No.1. Originally, suit property belonged to Hanumant Jatti Naik, who is the deceased husband of plaintiff No.1. After his death suit property came to the name of plaintiffs and defendants as varisa and their names got entered in the revenue records. The suit property is the joint family property of plaintiffs and defendants. There is no partition in the family. On all these grounds, it was sought for partition and separate position of the property. 4. On service of notice, defendants 1 and 2 appeared through their Counsel and filed written statement denying that the suit property is the joint family property of plaintiffs and defendants. It was also denied as to the right of plaintiffs to the extent of 1/6th share in the suit property. It is stated that the plaintiffs 2 and 4 are married daughters, their father died on 5th June 1995. It is contended that plaintiffs 2 to 4 are not having equal share in the schedule property. It is also contented that - 4 - RSA No. 100593/2023 defendants 1 and 2 are entitled for 1/4th share each in the suit property along with 1/6th share out of 1/4 share of their deceased father. Hence it is contended that the plaintiffs 2 to 4 are entitled only to the extent of 1/6th share each out of 1/4th share of their deceased father. Accordingly it was prayed for partition of 1/4th share each in the suit property along with 1/6th share of their deceased father 1/4th share. It is stated that plaintiffs have never resorted for partition of suit property with them. It is also stated that plaintiffs have not included some of the joint family properties like Sy.No.962/20 to the extent of 2 acres, Sy.No.964/2K1 to the extent of 5 guntas, Sy.No.964/1 to the extent of 1 acre 20 guntas out of 10 acre, 26 gunta, Sy.No.964/2 to the extent of 20 guntas out of 2 acres of Karki Village, Honnavar, Taluk; and Sy.No.42/2 to the extent of 16 guntas of Dugguru Village, Honnavar Taluk and hence contended that suit is bad for non-joinder of necessary properties and it was accordingly prayed for dismissal of the suit. 5. Based on the pleadings, trial Court framed four issues. To substantiate the case, plaintiff examined one witness as PW1 and marked three documents as Exhibits P1 to P3. On the - 5 - RSA No. 100593/2023 other hand, defendant No.1 got examined as DW1 and marked four documents as Exhibits D1 to D4. Having heard the arguments on both sides, the trial Court answered issues No.1 and 3 in the affirmative and Issue No.2 in the negative and decreed the suit of the plaintiff with costs declaring that plaintiffs and defendants are entitled for partition and separate position of 1/6th share each in the suit schedule property. Being agreed by the Judgment and decree passed by the trial Court, appellants preferred appeal before the Appellate Court in RA No.1 of 2021. The said appeal came to be dismissed with costs by Judgment dated 14th February 2023. Being agreed by the Judgments of both the Courts below, the appellants are before this Court in this second appeal. 6. Learned Counsel for the appellants would submit that the Judgments and decree passed by the Courts below are illegal perverse, arbitrary, without application of mind and contrary to the oral and documentary evidence on record, as also to the provisions of law and the Judgments of this Court, as also, the judgments of Hon’ble Supreme Court, and hence are liable to be set aside. He would submit that both the Courts have not considered the facts that the suit is not - 6 - RSA No. 100593/2023 maintainable for non-joinder of necessary properties as stated by the defendants. The Courts have committed an error in dismissing the suit of the plaintiff. When the father of plaintiffs 2 to 4 and defendants died on 5th June 1995, i.e. prior to amended Section 6 of Hindu Succession Act, 2005 coming into force, and the same is contrary to provisions of Section 6 of Hindu succession (Amendment) Act, 2005. Though the plaintiffs have knowledge about the death of the father on 05th June 1985, they have kept quite for a period of ten years and have filed the suit at a belated stage. On all these grounds, it was sought to form substantial question of law by admitting the appeal. 7. I have examined the materials placed before me. At paragraphs 20 to 23 of the Judgment, the first appellate Court has observed as under: “20. As I already stated defendants have contested the suit on two grounds. Firstly the defendants have specifically contended that suit of the plaintiffs is bad for non-inclusion of other family properties such as survey No.962/20, measuring 02-00-00 acres; survey No.964/2K1, measuring 00-05-00 guntas; survey No.964/1, measuring 01-20-00 acres and survey No.964/2, measuring 00-20-00, all are situated at Karki village and another land in survey - 7 - RSA No. 100593/2023 No.42/2, measuring 00-16-00 guntas, situated at Dugguru village. In order to substantiate this contention defendant No.1 examined as DW-1 in the form of affidavit and re- iterated all the contentions took-up in the written statement once again in the affidavit filed in lieu of chief-examination. During the course of chief-examination, he has produced 04 documents and they have admitted as per Exhibit D-1 to D- 4. Exhibit 0-1 is the certified copy of hand written Record of Rights for the year 1941-42 to 1954-55 relating to land in Survey No.964/1, measuring 01-20-00 guntas of Honnavara village. Similarly Exhibit D-2 is the certified copy of hand written Record of Rights for the year 1966-67 to 1979-80 relating to land in Survey No.964/3, totally measuring 10- 38-00, situated at Karki-1 village, Honnavara taluk. Exhibit D-3 is the certified copy of hand written Mutation Entry No.A2133 and Exhibit D-4 is the certified copy of hand written Mutation Entry No.A1586 relating to lands of Karki-1, Honnavara taluk. Except producing Exhibit D-1 to D-4, the defendants have not produced the material, relevant and present documents to show that even as on the date of filing of suit, survey No.962/20, measuring 02-00-00 acres; survey No.964/2K1, measuring 00-05-00 guntas; survey No.964/1, measuring 01-20-00 acres and survey No.964/2, measuring 00-20-00, all are situated at Karki village and another land in survey No.42/2, measuring 00-16-00 guntas, situated at Dugguru village are also the joint family properties. 21. It is true that during the course of cross- examination PW-1 admitted that the family possessed land in survey No.262/20, but she has said that the same was alienated by defendant No.1 at the time of his marriage. - 8 - RSA No. 100593/2023 Though the learned counsel for the defendants conducted lengthy cross-examination, nothing has been elicited to infer that the family is having other properties and they have not included in the suit. When such being the case, it cannot be said that lands in survey No.962/20, measuring 02-00-00 acres; survey No.964/2K1, measuring 00-05-00 guntas; survey No.964/1, measuring 01-20-00 acres and survey No.964/2, measuring 00-20-00, all are situated at Karki village and another land in survey No.42/2, measuring 00- 16-00 guntas, situated at Dugguru village are also the ancestral properties basing on some stray admissions in the absence of material and acceptable documentary evidence. Hence I am concluding that defendants failed to prove that the plaintiffs have not included other ancestral properties and therefore suit is bad for non-inclusion of all the family properties. 22. As far as the other contentions of the defendants that the plaintiff No.2 to 4 are the married daughters; Sri Hanumanta Jatti Naik was passed away on 05-06-1995 and therefore plaintiffs are not having full share in the suit land and they are having only 1/4 shares each in the 1/6th share in the share of their fathers 1/4th share. But the same is not acceptable even if it is presumed that the suit land is co- parcenary property in view of dictum of Hon'ble Apex Court in the decision reported in (2020) 9 SCC 1 in between Vineetha Sharma versus Rakesh Sharma wherein it is held that the daughters acquired right by birth and therefore they are also entitle for equal share as that of son in the co- parcenary property irrespective of the fact that their father is dead or alive as on the date of commencement of the Amended Act, 2005 (Hindu Succession Act, 1956). The - 9 - RSA No. 100593/2023 marriage or death of their father will not change their right to property acquired by birth. In the present case on hand the suit land was the tenanted and granted land to late Hanumanta Jatti Nalk; he died intestate leaving behind the plaintiffs and defendants as his class-1 legal heirs and therefore each of the plaintiffs are entitle for equal share in the suit land under section 8 of the Hindu Succession Act, 1956, the plaintiffs and defendants are the members of Hindu Un-divided Joint family; enjoyment of the same and all are having undivided share therein and hence each 23. On overall appreciation of oral and documentary evidence placed on record, I am of the opinion that the suit land was originally owned and possessed by late Hanumanta Jatti Naik; he died intestate leaving behind the plaintiffs and defendants as his class-I legal heirs and suit land and therefore law presumed that suit land is the joint family property; all are presumed to be in joint possession and of the plaintiffs are having 1/6 shares therein and hence they are entitle for the relief of partition and separate possession. By looking to the impugned judgment, the trial court has considered the status of the parties and evidence placed on record from both sides in right perspective in detail and comes to the right conclusion and rightly decreed the suit. The reasons assigned by the trial court in decreeing the suit are sound, justice and proper. Hence I found no irregularity or infirmity or perversity in the impugned judgment. Hence absolutely there is no necessary to interfere with impugned judgment and decree passed by the trial court. Hence I am answering to Point No. 1 to 3 in the affirmative and Point No. 4 in the negative.” - 10 - RSA No. 100593/2023 8. Having observed thus, the first Appellate Court has given finding as to the arguments advanced on behalf of the appellants before it, which are similar to the contentions that are taken by the appellants in this appeal. Both the Courts have properly appreciated the evidence on record in accordance with law and facts, and also the Judgment of Hon’ble Supreme Court in the case of VINITA SHARMA v. RAKESH SHARMA AND OTHERS reported in (2020)9 SCC 1. I do not find any ground to form substantial question of law as sought for. Hence, I proceed to pass the following: O R D E R Being devoid of merits, appeal stands dismissed at the stage of admission itself. Sd/- (G BASAVARAJA) JUDGE lnn CT-CMU