- 1 - HC-KAR NC: 2025:KHC:29608 RSA No. 2600 of 2007 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 2600 OF 2007 BETWEEN: 1. SRI CHIKKAMUNIVENKATAPPA S/O MUNIYAPPA SINCE DEAD BY HIS LR’S 1(A) MUNIYAMMA W/O CHIKKAMUNIVENKATAPPA SINCE DIED ON 31.12.2022 1(B) HANUMANTHAPPA S/O CHIKKAMUNIVENKATAPPA AGED ABOUT 42 YEARS 1(C) MUNIRATHNAMMA D/O CHIKKAMUNIVENKATAPPA W/O NARAYANASWAMY R/O K HOSAHALLI MANDIKAL MANDAL, MULABHAGAL TALUK KOLAR DISTRICT. 1(D) JAYARAM S/O CHIKKAMUNIVENKATAPPA AGED ABOUT 37 YEARS 1(E) MYLEGOWDA S/O CHIKKAMUNIVENKATAPPA AGED ABOUT 37 YEARS LR’S 1(A), 1(B), 1(D) AND 1(E) ARE RESIDENT OF HUTHUR VILLAGE, KOLAR TALUK AND DISTRICT. 2. SRIRAMAPPA S/O HANUMANTHAPPA AGED ABOUT 45 YEARS Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:29608 RSA No. 2600 of 2007 R/O HUTHUR VILLAGE KOLAR TALUK AND DISTRICT. APPELLANTS (BY SRI. MURALI N.,ADVOCATE FOR APPELLANT NO.1(B) TO APPELLANT NO.1(E) AND APPELLANT NO.2; V/O DTD 21.09.2023 APPEAL AGAINST A1(A) ABATED) AND: 1. SRI R VENKATARAMANAIAH S/O LATE RAMAIAH AGED ABOUT 60 YEARS R/O UTTUR VILLAGE KOLAR TALUK AND DISTRICT. 2. SMT. SAKAMMA W/O LATE RAMAIAH AGED ABOUT 80 YEARS R/O UTTUR VILLAGE KOLAR TALUK AND DISTRICT. 3. SMT. LAKSHMI D/O LATE RAMAIAH AGED ABOUT 55 YEARS W/O GOPANNA R/O DEVASANDRA, K.R.PURAM, BANGALORE. 4. SMT. PARVATHAMMA W/O LATE PAPANNA, D/O LATE RAMAIAH AGED ABOUT 70 YEARS R/O ANKATATTAHALLI VILALGE BANGARPET TALUK, KOLAR. 5. SRI G VENKATESH GOWDA S/O LATE RAMAIAH AGED 55 YEARS R/O HUTTUR VILLAGE KOLAR TALUK AND DISTRICT. 6. SRI DODDAVENKATARAYAPPA DEAD BY LRS - 3 - HC-KAR NC: 2025:KHC:29608 RSA No. 2600 of 2007 6(A) SMT. SUNANDAMMA W/O LATE SOMASHEKAR AGED ABOUT 53 YEARS RESIDENT OF GUTALURU VILLAGE HUTHUR HOBLI, KOLAR TALUK AND DISTRICT. 6(B) SMT. LAVANYA W/O MANJUNATH AGED ABOUT 32 YEARS RESIDENT OF VELAGALABURE VILLAGE, KOLAR TALUK, KOLAR DISTRICT. 6(C) SMT. THRIVENI W/O ANANDAKUMAR AGED ABOUT 30 YEARS RESIDENT OF BELLABALLI VILLAGE DEVARAYASAMUDRA POST MULABAGAL TALUK, KOLAR DISTRICT. 6(D) SRI. ANIL @ ANILKUMAR S/O LATE SOMASHEKAR AGED ABOUT 29 YEARS RESIDENT OF GUTALURU VILLAGE HUTHUR HOBLI, KOLAR TALUK AND DISTRICT. 6(E) SMT. VINODAMMA W/O LATE SOMASHEKAR AGED ABOUT 50 YEARS RESIDENT OF GUTALURU VILLAGE HUTHUR HOBLI, KOLAR TALUK AND DISTRICT. 6(F) SRI. GS DHARMA PRAKASH S/O LATE SOMASHEKAR AGED ABOUT 25 YEARS RESIDENT OF GUTALURU VILLAGE HUTHUR HOBLI, KOLAR TALUK AND DISTRICT. 6(G) SMT. MUNILAKSHMAMMA D/O LATE MUNIYAPPA W/O LAKSHMAPPA AGED ABOUT 53 YEARS RESIDENT OF GUTALURU VILLAGE HUTHUR HOBLI, KOLAR TALUK AND DISTRICT. 6(H) SRI. MANJUNATHA - 4 - HC-KAR NC: 2025:KHC:29608 RSA No. 2600 of 2007 S/O LATE MUNIYAPPA AGED ABOUT 50 YEARS R/AT GUTALURU VILLAGE HUTHUR HOBLI AND POST, KOLAR TALUK AND DISTRICT. 6(I) SRI. SONNEGOWDA S/O LATE MUNIYAPPA AGED ABOUT 48 YEARS R/AT GUTTLUR VILLAGE, HUTHUR HOBLI AND POST, KOLAR TALUK AND DISTRICT. 6(J) SMT. SAMAKKA D/O LATE DODDA VENKATARAYAPPA W/O SOMAPPA AGED ABOUT 75 YEARS R/AT BELAGANAHALLI VILLAGE HUTHUR HOBLI AND POST KOLAR TALUK AND DISTRICT. 6(K) SMT. VENKATAMMA D/O LATE DODDA VENKATARAYAPPA W/O VENKATARAMAIAH AGED ABOUT 73 YEARS R/AT GUTTLUR VILLAGE HUTHUR HOBLI AND POST KOLAR TALUK AND DISTRICT. 6(L) SMT. MUNIYAMMA D/O LATE DODDA VENKATARAYAPPA W/O CHOWDAPPA AGED ABOUT 70 YEARS R/AT THODALA VILLAGE NAYAKARAHALLI POST, HOLUR HOBLI, KOLAR TALUK AND DISTRICT. RESPONDENTS (BY SRI. MS VARADARAJAN.,ADVOCATE FOR SRI. SANTHOSH., ADVOCATE FOR R1 & R3 TO R5; SRI. HS RAMAMURTHY., ADVOCATE FOR R6(A TO I); SRI. RAJANNA R., ADVOCATE FOR SRI. M SHIVAPRAKASH., ADVOCATE FOR R6(J TO L); - 5 - HC-KAR NC: 2025:KHC:29608 RSA No. 2600 of 2007 V/O DTD 01.07.2016 R1, R3 TO R5 ARE TREATED AS LR’S OF DECEASED R2.) THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 11.07.2007 PASSED IN RA.NO.3/1998 ON THE FILE OF THE I ADDL.CIVIL JUDGE (SR.DN.) KOLAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 18.10.1997 PASSED IN OS.NO.458/89 ON THE FILE OF THE ADDL.CIVIL JUDGE (JR.DN.) KOLAR AND ETC,. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT This appeal arises from a divergent finding in a suit for partition. The suit is initially decreed, granting a half share to the plaintiffs. The contesting defendants filed an appeal. The appeal is allowed and the suit is dismissed on the premise that the suit is hit by the principle of res judicata. Hence, the present second appeal by the plaintiffs. 2. This appeal was admitted on 12.07.2010 to answer the following substantial questions of law: (1) Whether in the facts and circumstances of the case, the Appellate Court was justified in reversing the judgment and decree passed by the Trial Court on the ground, the suit is barred by the principle of res judicata? - 6 - HC-KAR NC: 2025:KHC:29608 RSA No. 2600 of 2007 (2) Whether the Appellate Court was justified in allowing the appeal without bringing the Legal Representatives of deceased R-1, R-3 and R-6? 3. Learned counsel appearing for the plaintiffs/ appellants would submit that the propositus Mylegowda had three sons by names Bayyanna, Venkatappa and Sonnappa. Venkatappa's daughter-in-law, Nanjamma filed a suit for partition claiming 1/3 share against the children of Bayyanna, Sonappa and children of Sonnappa. 4. In the said suit, Bayyanna's children, Sonnappa and the children of Sonnappa took a defence that there was already a partition in the family effecting three separate divisions in favour of three children of Mylegowda and prayed for dismissal of the suit. 5. After the contest, the Trial Court held that there is no such previous partition as pleaded by the defendants and granted a decree for 1/3 share in favour of Nanjamma. Before she could initiate a Final Decree Proceeding, she died issueless. - 7 - HC-KAR NC: 2025:KHC:29608 RSA No. 2600 of 2007 6. Thus, the remaining two branches of Bayyanna and Sonnappa inherited the share of Nanjamma as Class-II heirs. After the death of Nanjamma, having inherited her share along with the children of Sonnappa, the plaintiffs filed a suit for partition seeking a half share by including all the properties. 7. In the said suit, the defendants took a contention that properties No.18 to 20 are the self-acquired properties as the properties granted exclusively in the name of Ramaiah, s/o Sonnappa - 1st defendant. 8. The Trial Court, after considering the evidence on record, concluded that all the properties are the joint family properties except item No.17 on the premise that when the land was granted to Ramaiah, the family was still joint. 9. Aggrieved by the judgment and decree, the defendants filed an appeal before the First Appellate Court. 10. The First Appellate Court dismissed the suit by allowing the appeal by holding that the plaintiff's remedy is to execute the preliminary decree which was passed in favour of Nanjamma and the defendants in the earlier suit in O.S.47/71. - 8 - HC-KAR NC: 2025:KHC:29608 RSA No. 2600 of 2007 11. The question whether item No.18 to 20 properties are the self-acquired properties of Ramaiah, as contended by 1st defendant was not adjudicated by First Appellate Court. 12. Learned counsel appearing for the plaintiffs/ appellants would submit that the previous judgment in the suit filed by Nanjamma will not operate as res judicata. On the other hand, after the demise of Nanjamma, succession opens in favour of the plaintiff as well as other defendants, and the second suit for partition is maintainable. 13. It is also urged that First Appellate Court was required to consider whether items 18 to 20, as contended by 1st defendant are his self-acquired properties. Thus, he would urge that First Appellate Court committed an error in not adjudicating the said contention. 14. It is further urged that when the properties were granted by the Land Tribunal in favour of 1st defendant, the family was living jointly and therefore, the grant should be construed as a grant in favour of the joint family and not a grant in favour of 1st defendant. Thus, he would urge that the - 9 - HC-KAR NC: 2025:KHC:29608 RSA No. 2600 of 2007 appeal be allowed and the suit be decreed, granting a half share. 15. Learned counsel for the contesting respondents would submit that, though the appeal is dismissed, First Appellate Court observed that the plaintiff can initiate Final Decree Proceeding based on the decree in the suit filed by Nanjamma, where the benefit is also conferred on the plaintiffs in the said suit. 16. It is urged that that items No.18 to 20 are the self acquired properties of 1st defendant and the Trial Court wrongly granted a decree in respect of those properties and on an appeal by the defendants, the Court has dismissed the suit by allowing the appeal, as such, the defendants cannot file a cross appeal or an appeal against the finding of the Trial Court which was questioned before the First Appellate Court in respect of items No.18 to 20. However, he would submit that without filing cross objections or the appeal before this Court, since the decree of the First Appellate Court is entirely in favour of the contesting respondents, the respondents can urge the contention that items No.18 to 20 properties are the self- - 10 - HC-KAR NC: 2025:KHC:29608 RSA No. 2600 of 2007 acquired properties as the said contention was raised before the First Appellate Court. 17. After hearing the learned counsel for the appellants and respondents, this Court is of the view that following additional substantial questions of law are required to be framed: “1) Whether the second suit for partition is maintainable, after the decree holder in an earlier suit for partition dies intestate, without initiating final decree proceeding, and share of the deceased decree holder is inherited by remaining parties in the earlier suit? 2) Whether the plaintiffs ought to have filed a final decree proceeding to claim a share in the properties after the death of the decree holder Smt. Nanjamma, who was earlier allotted 1/3 share? 3) Whether the Trial Court is justified in holding that item Nos.18 to 20 properties are the self-acquired properties of contesting defendant No.1?” 18. Earlier suit was by Venkatappa's daughter-in-law, Nanjamma. She obtained a preliminary decree for partition claiming 1/3 share against the children of Bayyanna, Sonappa and children of Sonnappa. Before she could secure a final - 11 - HC-KAR NC: 2025:KHC:29608 RSA No. 2600 of 2007 decree, she died issueless and her 1/3rd undivided share devolved on other two branches and the plaintiffs’ branch inherited 1/6th share, in addition to 1/3rd share already possessed. Since succession opened after the demise of the decree holder, the plaintiff is justified in filing the suit. It is also noticed that in the earlier suit item No. 18 to 20 of the second suit were not parties. 19. It is noticed from the pleadings that the plaintiffs claim that all the suit properties are joint family properties. The documents placed before the Court would reveal that the occupancy right is granted in favour of Ramaiah in the year 1981. Ramaiah's son who was present before the Land Tribunal has made a statement that his father was cultivating the property under the landlord 30 years before the said order which is passed in 1981.This would indicate that Ramaiah was cultivating the property in 1950’s. 20. The plaintiffs do not contend that propositus Mylegowda was the tenant of those properties. It is not the case of the plaintiffs that tenancy is inherited from Ramaiah. - 12 - HC-KAR NC: 2025:KHC:29608 RSA No. 2600 of 2007 21. The law relating to the Government grant is well settled. The person in whose favour the property is granted is presumed to be his self-acquired property till the contrary is established. 22. Since there is no pleading that the tenancy is inherited from the propositus Mylegowda or there is no pleading to the effect that the tenancy is jointly acquired in the name of Ramaiah, this Court is of the view that grant of land by the Land Tribunal in favour of Ramaiah for want of necessary pleading and rebuttal evidence would lead to the conclusion that the properties are granted in favour of Ramaiah, based on his individual tenancy and not the joint family tenancy. 23. 23. Thus, the contention of the plaintiffs that item No.19 and 20 properties are the joint family properties has to be rejected, and the Trial Court has rightly done so. 24. First Appellate Court did not touch upon this issue, it has proceeded on the assumption that the second suit is barred under the principle of res-judicata. Though one of the courses available to this Court is to remand the matter to First Appellate Court to decide the issue relating to the nature of the - 13 - HC-KAR NC: 2025:KHC:29608 RSA No. 2600 of 2007 properties at item No.19 and 20, since, the suit is of the year 1999 and the appeal is of the year 2007, in exercise of Jurisdiction to under Section 103 of the Code of Civil Procedure, this Court has decided the issue relating to the nature of the properties. 25. As far as item No.18 is concerned, the plaintiffs have raised a contention that it is the joint family property. The defendants have raised the contention that it is the property allotted to the share of the defendants in the prior partition. 26. It is also noted that in the earlier suit, the defence of prior partition is negatived and that being the position, the defendants cannot contend that the property is allotted to their share in the prior partition. 27. Moreover, once the defendants take a contention that the property is allotted to their share in the prior partition, by necessary implication, they are admitting that at one point in time, that property was a family property. It is stated that the item No. 19 and 20 were not subject matter of earlier suit. - 14 - HC-KAR NC: 2025:KHC:29608 RSA No. 2600 of 2007 28. This being the position, the Trial Court is justified in granting a decree in favour of item No.18 property. 29. As far as item No.17 property is concerned, it is dismissed as such property is on the premise that it is not a joint family property and both parties are not aggrieved by the said dismissal. 30. Under these circumstances impugned the judgment and decree passed by the Trial Court and First Appellate Court have to be modified to the aforementioned extent. 31. Learned counsel for the plaintiffs on instructions has made a statement before the Court stating that item No.18 property be exclusively allotted to the share of the defendants and the plaintiff’s share in the said property be accommodated in any other properties. Said submission is placed on record. 32. While effecting the final decree, and allotting the share to defendant No.1 or his legal representatives as the case may be, item No.18 property should be exclusively allotted to the share of defendant No.1 represented by his legal representatives. - 15 - HC-KAR NC: 2025:KHC:29608 RSA No. 2600 of 2007 33. To compensate for the plaintiff’s share in item No.18, while allotting the share to the plaintiffs in other properties, the plaintiffs should be allotted additional share equivalent to his share in item No. 18. 34. It is made clear that the allotment of share in item No.18, to the defendant No.1 or his legal representatives, is not in addition to the actual share to be allotted but inclusive of the share to be allotted. ORDER i. The appeal is allowed in part; ii. The judgment and decree dated 11.07.2007 and passed in RA No.03/1998 on the file of I Additional Civil Judge (Senior Division), Kolar is modified; iii. The judgment and decree dated 18.10.1997 and passed in O.S.No.458/1989 on the file of I Additional Civil Judge (Senior Division), Kolar are modified; - 16 - HC-KAR NC: 2025:KHC:29608 RSA No. 2600 of 2007 iv. The plaintiffs are entitled to half share in item Nos.1 to 16 and 18 properties. The suit of the plaintiffs is dismissed in respect of item Nos.19 and 20 properties. v. The defendants are also entitled to half share in item Nos.1 to 16 and 18 properties; vi. However, though it is observed that the parties are entitled to ½ share in the aforementioned properties, the division should be effected keeping in mind the observations in paragraphs No. 31 to 34 supra. vii. No order as to costs. Sd/- (ANANT RAMANATH HEGDE) JUDGE PNV List No.: 1 Sl No.: 25