- 1 - HC-KAR NC: 2025:KHC:33938 RSA No. 236 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 236 OF 2021 (PAR) BETWEEN: 1. SRI. PATHALINGAPPA S/O. PAPANNA, AGED ABOUT 58 YEARS, R/O. KAPARAHALLI, CHALLAKERE TALUK - 577 522, CHITRADURGA DISTRICT. 2. SMT. SRILAKSHMI P BELAGERE D/O. PATHALINGAPPA, AGED ABOUT 18 YEARS, R/O. K. KAPARAHALLI, CHALLAKERE TALUK - 577522. CHITRADURGA DISTRICT …APPELLANTS (BY SRI. SIDDAPPA B.M, ADVOCATE) AND: 1. SMT. NARASAMMA W/O. LATE. THIPPAIAH, AGED ABOUT 69 YEARS AGRICULTURIST, SOMAGUDDU VILLAGE, CHALLAKERE TALUK - 577 522 CHITRADURGA DISTRICT. Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:33938 RSA No. 236 of 2021 2. THIPPESWAMY S/O. LATE. THIPPAIAH, AGED ABOUT 49 YEARS 3. ERAMMA D/O. LATE. THIPPAIAH, AGED ABOUT 46 YEARS 4. T. BHUVANESHWARA S/O. T THIPPESWAMY, AGED ABOUT 26 YEARS AGRICULTURIST RESPONDENT NOS.1 TO 4 ARE R/O. SOMMAGUDDU VILLAGE, CHALLAKERE TALUK - 577 522. CHITRADURGA DISTRICT 5. VISHALAKSHI W/O. THIPPAIAH, AGED ABOUT 57 YEARS R/O. HARARU VILLAGE, HIRIYURU TALUK - 577 598. CHITRADURGA DISTRICT 6. NITHYASHREE D/O. T. THIPPESWAMY, AGED ABOUT 24 YEARS 7. PRASHANTHKUMAR S/O. T. THIPPESWAMY, AGED ABOUT 21 YEARS 8. INDIRA D/O. T. THIPPESWAMY, - 3 - HC-KAR NC: 2025:KHC:33938 RSA No. 236 of 2021 AGED ABOUT 18 YEARS RESPONDENT NOS.5 TO 8 ARE R/O. KAPARAHALLI VILLAGE, CHALLAKERE TALUK - 577 522, CHITRADURGA DISTRICT. …RESPONDENTS (BY SRI. P.H. VIRUPAKSHAIAH, ADVOCATE FOR R1 TO R4; R6 TO R8 ARE SERVED; VIDE ORDER DATED 24.07.2025, NOTICE TO R5 IS HELD SUFFICIENT) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 12.03.2020 PASSED IN RA NO.35/2016 ON THE FILE OF THE PRL. DISTRICT AND SESSIONS JUDGE, AT CHITRADURGA PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 28.04.2016 PASSED IN OS NO.28/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., AT CHALLAKERE. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri B M Siddappa, learned counsel for the appellant on the admission of the appeal. Sri P H Virupakshaiah, learned counsel for respondent Nos.1 to 4 is absent. 2. Facts in the nutshell for the disposal of the present appeal are as under: - 4 - HC-KAR NC: 2025:KHC:33938 RSA No. 236 of 2021 A suit for partition came to be filed in OS No.28/2014 in respect of following properties, hereinafter referred as suit properties - ITEM NO.1: Agricultural land bears Re.Sy.No.87 measuring an extent of 9 acre 32 guntas of Somagudda Village, in Challakere Taluk. EAST : Land of Durgaiah S/o Dyamappa WEST: Land of Re.Sy.No.86 (item No.2) NORTH : Forest SOUTH : Land of Chikkaiah S/o Erachikkappa ITEM NO.2: Agricultural land bears Re.Sy.No.86 measuring an extent of 9 acre 23 guntas of Somagudda Village, in Challakere Taluk. EAST : Item No.1 of plaint schedule WEST : Item No.3 of plaint schedule NORTH : Government Forest SOUTH : Land of Gollara Basaiah ITEM NO.3 : Agricultural land bears Re.Sy.No.85 measuring an extent of 4 acres 36 guntas of Somagudda Village, in Challakere Taluk. EAST : Item No.2 of plaint schedule WEST : Government Forest - 5 - HC-KAR NC: 2025:KHC:33938 RSA No. 236 of 2021 NORTH : Land of Madivalara SOUTH : Land of Gollara Basaiah ITEM NO.4 : Agricultural land bears Re.Sy.No.94/p2 measuring an extent of 3 acre 26 guntas of Somagudda Village, in Challakere Taluk. EAST : Forest WEST : Land of Sannerappa NORTH : Forest Land SOUTH : Land of Ajjappa S/o Sannerappa ITEM NO.5 : RCC House property bearing No. property measuring situated at Somaguddu Village, bounded by EAST : Road WEST : House of Sanna Hanumanna NORTH : House of Rudramma SOUTH : House of Murthappa ITEM NO.6 : Mangalore red tiled House property bearing No. property measuring situated at Somuguddu Village, bounded by EAST : Road WEST : House of Koli Ranganna - 6 - HC-KAR NC: 2025:KHC:33938 RSA No. 236 of 2021 NORTH : Road SOUTH : House of Rudranna 3. Plaintiff contended that plaintiff and defendants are the members of joint family and suit properties are their ancestral and joint family properties. 4. Plaintiff is also a coparcener in view of the amendment to Hindu Succession Act, 2005 and therefore she is entitled for share in the suit properties as a coparcener. First defendant without having any executable right, title in the suit item Nos.1 and 2 gifted the same in favour of defendant Nos.3 and 4 by executing the registered gift deeds on 21.10.2013 and 09.10.2013, as such gift deeds executed by first defendant are inoperative, illegal and nonest in law and sought for her legitimate share in respect of all the suit properties. 5. Pursuant to the suit summons, defendants No.2 and 5 remained absent and they were placed ex-parte. Defendant Nos.1, 3 and 4 appeared through advocate and defendant Nos.6 to 8 appeared through another advocate and filed - 7 - HC-KAR NC: 2025:KHC:33938 RSA No. 236 of 2021 common written statements in two separate sets for respondent Nos.1, 3 and 4 and for respondent Nos.6 to 8. 6. In the written statement except admitting the relationship, remaining averments of the plaint were denied. It is further contended that item Nos.1, 2, 4 and 6 are the self acquired properties of first defendant as he has purchased the suit item No.4 in the name of his son, second defendant and suit item No.5 is self acquired property of third defendant as she has purchased the same from her salaried income as she was working as a teacher. 7. It is also contended that there was a oral partition effected between the father and son i.e., defendant Nos.1 and 2 and in the said oral partition, item Nos.1, 2 and 6 have fallen to the share of first defendant and suit item Nos.3 and 4 have fallen to the share of second defendant and from that time onwards they were living separately by getting the revenue entries mutated in their respective names. 8. Based on the rival contentions of the parties, necessary issues have been framed and evidence has been - 8 - HC-KAR NC: 2025:KHC:33938 RSA No. 236 of 2021 recorded. Learned trial Judge after hearing the arguments of the parties dismissed the suit of the plaintiff. 9. Being aggrieved by the same, legal representatives of plaintiff filed an appeal in RA No.35/2016 before the District Judge, Chitradurga. 10. Learned Judge in the first appellate Curt after securing the records and hearing the arguments of the parties in detail allowed the appeal in part. Operative portion of the judgment of the first appellate Court reads as under: " The appeal is partly allowed. The judgment and decree dated 28.04.2016 in O.S. No.28/2014 passed by the learned Sr. Civil Judge, Challakere, dismissing the suit of the plaintiff for partition and separate possession is hereby set aside. Consequently, the suit of the plaintiff is hereby decreed in part. The original plaintiff is entitled for 1/4th share in item Nos.3, 5 and 6 of suit schedule properties by way of partition and separate possession and the defendant Nos.1(a), 2 and 3 are entitled for 1/4th share each in item Nos.3, 5 and 6 of the suit properties. - 9 - HC-KAR NC: 2025:KHC:33938 RSA No. 236 of 2021 The claim of the plaintiff regarding other suit schedule properties is hereby dismissed. The counter claim of defendant Nos.6 to 8 is hereby dismissed. Under the facts and circumstances of the case, as the parties are relatives to each other, hence no order as to costs. I.A. No.VII filed by the appellants under Order 41 Rule 27 r/w/s 151 of CPC is hereby dismissed. " While so decreeing the suit in part, the first appellate Court has recorded cogent and convincing reasons for decreeing the suit in paragraph Nos.32 to 35 as under: " 32. Suit item No.4 is stands in the name of defendant No.2. It had been purchased by the defendant No.2, therefore, the defendant No.1 had no right in that property. Smt. Eramma d/o Thippaiah i.e., defendant No.3 purchased house property bearing No.516 of Somaguddu Grama Panhayath and her name entered as per EX.P.11 and P.12. What the property described in item Nos.5 and 6 of schedule are totally different from what the property purchased by the defendant No.3. The item Nos.5 and 6 and stands in the name of the defendant No.1, it could be seen from - 10 - HC-KAR NC: 2025:KHC:33938 RSA No. 236 of 2021 EX.P9 and 10 Assessment Extract of Somaguddu Grama Panchayath. 33. Admittedly, the defendant No.1 died during pendency of the suit. His wife Narasamma brought on record. After death of defendant No.1, succession opens. The legal heirs of the defendant No.1 are succeeded to the properties of the defendant No.1, who left out item No.3, 5 and 6 of the schedule properties. Therefore, legal heirs of defendant No.1 succeeded to the said properties. The original plaintiff being the daughter of defendant No.1, the defendant N.1(a) being the wife of defendant No.1, the defendant Nos.2 and 3 being the children of defendant No.1 are the legal heirs of defendant No.1. Therefore, the plaintiff, defendant No.1(a), defendant Nos.2 and 3 are entitled for 1/4th share each out of item Nos.3, 5 and 6 of the schedule properties belonging to the deceased defendant No.1 Thippaiah. 34. The additional documents produced by the plaintiff under Order 41 Rule 27 CPC would not be helpful to the case on hand for the reasons discussed above. Therefore, I.A. filed under Order 41 Rule 27 CPC is liable to be dismissed. - 11 - HC-KAR NC: 2025:KHC:33938 RSA No. 236 of 2021 35. Even though the defendant No.1 died during pendency of the suit, leaving behind his wife defendant No.1(a), his children original plaintiff, defendant Nos.1 and 2 as his legal heirs, the Trial Court has not considered it. that after death of defendant No.1 when he has not willed out his properties anybody during his lifetime; certainly above the plaintiff, defendant No.1(a), defendant Nos.2 and 3 being direct legal heirs of him are entitled to succeed the properties of the defendant No.1 equally. Therefore, to that extent, the judgment and decree of the Trial Court requires interference in the appeal. As far as findings of the Trial Court in respect of item Nos.1, 2 and 4 does not require any interference in the appeal. Accordingly, I answer the point Nos.1, 4 and 5 in negative and point Nos.2, 3 and 6 partly in the affirmative. " 11. Being aggrieved by the same, legal representatives of the plaintiffs have preferred this second appeal on following grounds - The both the Courts grossly erred in rejecting the claim of the plaintiff in respect of suit item No.1, 2 and 4 though evidence on record clearly goes to show that they are - 12 - HC-KAR NC: 2025:KHC:33938 RSA No. 236 of 2021 ancestral and joint family properties of plaintiff and defendants. The First Appellate Court after having recorded the finding that sit item No.1 is an ancestral property, in recording the finding that suit item No. is the self acquired property of the Defendant No.1 though evidence on record goes to show that same was acquired out of the earnings from suit item No.1 in holding that they are the self acquired properties of Defendant No.1. The First Appellate Court having noticed the fact that the Defendant No.1 got the property under a registered relinquishment deed of 1962 but, still holds that suit item No.1 is the self acquired property of Defendant No.1. It is submitted that both the Courts below grossly erred in holding that suit item No.1, 2 and 4 are self acquired properties are acquired out of the nucleus of item No.1 and 2 and 3. As such Defendant N.1 does not get any independent exclusive right to Gift the properties As such Gifts Deed executed - 13 - HC-KAR NC: 2025:KHC:33938 RSA No. 236 of 2021 by Defendant No.1 in favour of Defendant No.2 and 4 are bad in law. The First Appellate Court grossly erred in dismissing the application filed for additional evidence. The Defendant No.1 died intestate during the pendency of the suit. As such all the heirs of Defendant No.1 are entitled for equal share in all the suit schedule properties. But, the Appellate Court dismissed the suit of the plaintiff in respect of suit item No.1, 2 and 4. Viewing from any angle the judgment and decree passed by both the Courts are liable to be dismissed so far item relates to suit item No.1, 2 and 4. " 12. In this appeal, the following substantial questions of law are raised - " a) Whether the both the Courts below are right in law in dismissing the suit of the plaintiff so far it relates to suit item No.1, 2 and 4 after having recorded the finding that the other properties are belongs to Defendant No.1 and who died intestate? b) Whether the First Appellate Court right in law in rejecting the application filed for seeking permission to produce additional evidence, without - 14 - HC-KAR NC: 2025:KHC:33938 RSA No. 236 of 2021 assigning any reason though the document sought to be produced is bearing on the contention of the parties? c) Whether the both the courts are right in law in recording the finding that the properties in question are self acquired properties of Defendant No.1 though evidence on record goes to show that he has acquired the suit item No.1 under the relinquishment deed? " 13. Sri B M Siddappa, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that there was a relinquishment deed earlier and after the relinquishment deed, first defendant has purchased the property utilizing the joint family funds and therefore item No.1 of the suit property is also to be treated as joint family property and therefore sought for admitting the appeal on aforesaid substantial questions of law. 14. Learned counsel for the respondents is absent. 15. Having heard the arguments of the counsel for the appellants, this Court perused the material on record meticulously. - 15 - HC-KAR NC: 2025:KHC:33938 RSA No. 236 of 2021 16. On such perusal of the material on record, it is crystal clear that the defendants have taken the plea of oral partition earlier. Believing the same, the suit of the plaintiff came to be dismissed at the first instance before the trial Court. 17. Learned judge in the first appellate Court took into consideration of the death of first defendant during the pendency of the appeal, has decreed the suit in part as referred to supra. 18. While so decreeing the suit of the plaintiff in part, the first appellate Court has also taken into consideration that there was no evidence placed on record by the plaintiff with regard to the doctrine of joint family nucleus and spillover. 19. Admittedly, the plaintiff did not file any additional evidence before the first appellate Court except producing the certified copy. In so far as the effect of certified copy of relinquishment deed, learned judge in the first appellate Court has discussed in detail in paragraph No.22 which reads as under- - 16 - HC-KAR NC: 2025:KHC:33938 RSA No. 236 of 2021 " 22. As such I have gone through the EX.D.1 certified copy of sale deed dated 05.02.1965 in respect of item No.1 bearing Sy.No.87. The registered sale deed dated 05.02.1965 is executed by Boranna s/o Eranna in favour of Thippaiah s/o Kivadu Thippaiah in respect of Sy.No.87 measuring 9.32 acres of land situated at Somaguddu village. this is 30 years old document, it need not necessary to prove it by producing evidence of the witnesses. It is to be accepted as true and correct under Section 90 of Evidence Act. This document is taken subsequent to the relinquishment deed dated 17.09.1962 produced under I.A. filed under Order 41 Rule 27 CPC. The facts make it clear that, subsequent to the relinquishment deed dated 17.09.1962, the said property as sold to Boraiah s/o Eranna, later the defendant No.1 purchased it under registered sale deed dated 05.02.1965. Under the relinquishment deed dated 17.09.1962 as pleaded by the plaintiff, except item No.1 bearing Sy.No.87, the defendant No.1 had not received any other property towards his share. While purchasing the suit item No.1 on 05.02.1965 under registered sale deed from Boraiah s/o Eraiah, the defendant No.1 had not possessed any family property acquired from his ancestors. When the defendant No.1 had not possessed any property prior to purchase of the item No.1 bearing Sy.No.87 - 17 - HC-KAR NC: 2025:KHC:33938 RSA No. 236 of 2021 under sale deed dated 05.02.1965, certainly it become his self acquired property. The production of additional evidence under Order 41 Rule 27 in respect of item No.1 would not be helpful to the plaintiff." 20. Mere producing the certified copy of the relinquishment deed would not ipso facto make out a case that the first defendant had obtained joint family nucleus and from that income, he has purchased the suit item No.1. 21. In the absence of any cogent evidence placed on record, decreeing of the suit in part by the first appellate Court needs no interference. Accordingly, the following - ORDER (i) The substantial questions of law raised in the appeal do not merit for further consideration. (ii) Consequently, the appeal is dismissed. Sd/- (V SRISHANANDA) JUDGE YKL/List No.: 1 Sl No.: 32