- 1 - HC-KAR NC: 2025:KHC:37293 RSA No. 185 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO.185 OF 2020 (PAR) BETWEEN: SRI. BASAVARAJU S/O LATE RANGAPPA, SINCE DECEASED REPRSENTD BY LRS, 1. SRI.B. JAGADEESHAPPA, S/O LATE BASAVARAJU, AGED ABOUT 56 YEARS, R/O SUGURU VILLAE, NONAVINAKERE HOBLI, TIPTUR TLAUK, TUMKUR DISTRICT 57224 2. SIDDAGANGAMMA W/O LATE BASAVARAJU, SINCE DEAD BY LR I.E., APPELLANT NO.1 …APPELLANTS [BY SRI NAGARAJ S, ADVOCATE (VIDE ORDER DATED 20.09.2024, APPELLANT NO.1 IS THE LEGAL REPRESENTATIVE OF DECEASED APPELLANT NO.2)] AND: 1. SMT. AMBIKAMMA D/O LATE BASAVARAJU, W/O LATE VISHWESHWARAIAH, AGED ABOUT 67 YEARS, 2. MRS SUNANDA D/O BASAVARAJU, W/O LATE RAMAIAH, AGEDA BOUT 64 YEARS, Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:37293 RSA No. 185 of 2020 R/O NAGARAGHATTA KAWAL VILLAGE, NONAVINAKERE HOBLI, TIPTUR TALUK, TUMKUR DISTRICT -57224 3. SMT.LOLAKSHAMMA D/O BASAVARAJU, W/O.K.T. NAGARAJU, AGED ABOUT 61 YEARS, RESPONDENTS NO.1 AND 3 ARE R/O SUGURU VILLAGE, NONAVINAKERE HOBLI, TIPTUR TALUK, TUMKUR DISTRICT -57224. …RESPONDENTS (BY SRI H.V.BHANUPRAKASH, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND DECREE DATED 25.11.2019 PASSED IN RA.NO.32/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC TIPTUR, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE AND MODIFYING THE JUDGMENT AND DECREE DATED 23.04.2011 PASSED IN OS NO.64/2009 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, TIPTUR. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA - 3 - HC-KAR NC: 2025:KHC:37293 RSA No. 185 of 2020 ORAL JUDGMENT Heard Sri Nagaraj S., learned counsel for the appellants and Sri H.V. Bhanuprakash, learned counsel for respondents. 2. Defendant Nos.1 to 3 are the appellants, challenging the judgment passed by the First Appellate Court in R.A.No.32/2011, whereby appeal of the defendants was allowed in part by modifying the judgment and decree passed in O.S.No.64/2009. 3. Facts of the case for disposal of this appeal are as under: A suit for partition and separate possession came to be filed by the plaintiffs in respect of the following properties (hereinafter referred to as ‘suit schedule properties’): “ ‘A'-SCHEDULE. 1) Land bearing Sy No.154/1, measuring 0-21 guntas, assessed at Rs.1-81 ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East- Rajashekaraiah, West-Rajashekaraiah, North-Rudrappa and South-Shankaralingappa. 2) Land bearing Sy No. 165/1B, measuring 0-35, assessed at Rs.1-29 ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East-Vishveshwaraiah, West- - 4 - HC-KAR NC: 2025:KHC:37293 RSA No. 185 of 2020 Somashekar, North-Shankaralingappa and South- Jagadeeshappa. 3) Land bearing Sy No.155/1, measuring 1-18, assessed at Rs. 3-12 ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East-Rajashekaraiah, West-Halla, North-Sy.No.152/2, and South-Halla. 4) Land bearing Sy No. 195/1, measuring 0-22, assessed at Rs. 4-20 ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East-K.T.Nagaraju, West- Neelakantappa, North-Rajashekaraiah and South- Thayamma. 5) Land bearing Sy No.152/2B, measuring 0-16 guntas, assessed at Rs. 2-91ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East- Jagadeeshappa, West-Jagadeeshappa, North-Rudrappa and Kariyanna and South-Shivabasavaiah. 6) Land bearing Sy No.154/4, measuring 0-11, assessed at Rs. 0-95 ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded West-Chikkanna, North-on East- Rangaiah, Rajashekaraiah and South-Government Halla. 7) Land bearing Sy No.202, measuring 0-31, assessed at Rs. 28-64 ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East-K.T.Nagaraju, West-Halla, North-Rajashekaraiah and South-Government Halla. 8) Land bearing Sy No.177/3, measuring 0-20 guntas, assessed at Rs. 4-24 ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East- Sadashivaiah, West-K.T.Nagaraju, North-Basavaraju and Neelakantappa and South-Rajashekaraiah. 9) Land bearing Sy No.273/1, measuring 0-11 guntas, assessed at Rs. 1-51ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East-Grama Tana, West-Rajashekaraiah, North-Channappa and Shankaralingappa and South-Road. 10) House property bearing Sl.No.316, Assessment No.423- 424 (Old No.Kh.No.129), situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East-Road, - 5 - HC-KAR NC: 2025:KHC:37293 RSA No. 185 of 2020 West-Gurumurthy and Shivabasavaiah, North-Road and South-Shankaralingappa. 'B'- SCHEDULE. 1) Land bearing Sy No.151/1, measuring 1-03 guntas, assessed at Rs.1-70 ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East- Shivanna, West- Kharab, North- Rajappa and South- Kharab. 2) Land bearing Sy No.169/1A, measuring 0-18 guntas, assessed at Rs 0-89 ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East Road, West- Jagadeeshappa, North-Nanjappa and South- Naganna. 3) Land bearing Sy No.169/1C, measuring 0-17 ½ guntas, assessed at Rs 0-86 ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East- Jagadeeshappa, West- Rayagaluve, North-Nanjappa and South- Lakshminarayana. ‘C'-SCHEDULE. 1) Land bearing Sy No.176/1, measuring 0-10, assessed at Rs. 1-77 ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Tab bounded on East- Basavaraju, West- Ravagaluve, North- Shivabasappa and South- K.T.Nagaraju. 2) Land bearing Sy.No.261/3A, measuring 0-16 guntas, assessed at Rs.0-55 ps, situated at Sugur village. Nonavinakere Hobli, Tiptur Taluk bounded on East- Halagappa, West- G.Nanjappa, North- Road and South- Poojari Rangappa. 3) Land bearing Sy No.261/6, measuring 0-20 guntas, assessed at Rs. 0-68 ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East-Siddappa, West-Nagaraju, North-Chandraiah and South-Road and Jagadeeshappa. 4) Land bearing Sy No. 169/1B, measuring 0-17 ½ guntas, assessed at Rs.0-86 ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East- - 6 - HC-KAR NC: 2025:KHC:37293 RSA No. 185 of 2020 Basavaraju, West-Basavaraju, North-Nanjappa and South- Shankaralingappa. 5) Land bearing Sy No.165/1C, measuring 0-37 guntas, assessed at Rs.1-36 ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East- S.T.Vishveshwaraiah, West-Kallamma, North-Rajashekaraiah and South- Shivanna. 6) Land bearing Sy No.155/2, measuring 0-32 guntas, assessed at Rs.1-72 ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East- Shankaralingappa, West-Jagadeeshappa, North- Shivabasavaiah and Jagadeeshappa and South-Halla. 7) Land bearing Sy No.152/2A, measuring 0-12 guntas, assessed at Rs.2-18 ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East- Rajashekaraiah, West- Sy.No.155/1, North- Rudrappa and South-Sy.No.155/1. 8) Land bearing Sy No.75/2, measuring 2-10 guntas, assessed at Rs. 1-98 ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East-Halla, West- Kere Kodi, North- Halla and South- Malleshanna and Shivananjappa. 9) Land bearing Sy No.154/5, measuring 0-17 guntas, assessed at Rs.1-46 ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East- B.Ningappa, West-Shankaralingappa, North-Rajashekaraiah and South-Halla. 10) Land bearing Sy No.261/3B2, measuring 0-06 guntas, assessed at Rs.0-21 ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East- Manjanna, West-G.Nanjappa, North-Road and South-Poojari Rangappa. 11) Land bearing Sy No.177/3, measuring 0-20, assessed at Rs....... ps, situated at Sugur village, Nonavinakere Hobli, Tiptur Taluk bounded on East-Sadashivaiah, West- K.T.Nagaraju, North-Jagadeeshappa and South- Lolakshamma.” - 7 - HC-KAR NC: 2025:KHC:37293 RSA No. 185 of 2020 4. Suit on due contest came to be decreed in part. 5. Operative portion of the Judgment of the trial Court is culled out hereunder for ready reference: “ORDER The suit of the plaintiffs is here by decreed partly with costs. The plaintiffs No. 1 to 3 are entitled for the 1/8th share each in total 3/8th in the "A" schedule properties and 1/6th share each in the "B" and "C" schedule properties by metes and bounds. The defendant No. 1 is entitled for 5/8th share in the "A" schedule properties and all the defendants are entitled for equal 1/6th each share in the "B" and "C" schedule properties by metes and bounds.” 6. Being aggrieved by the same, defendants filed an appeal before the First Appellate Court in R.A.No.32/2011. 7. Learned judge in the First Appellate Court, after securing the records, heard the arguments of the parties and partly allowed the appeal of the defendants and modified the judgment and decree passed by the trial Court. 8. Operative portion of the judgment of the First Appellate Court is culled out hereunder for ready reference: - 8 - HC-KAR NC: 2025:KHC:37293 RSA No. 185 of 2020 “ORDER The appeal filed by the appellants/defendants is hereby partly allowed. The judgment and decree passed by Addl. Civil Judge and JMFC, Tiptur in OS. No.64/2009, dated 23.04.2011 is here by set-aside and modified as follows: The plaintiffs are entitle 1/8th share each in "A" schedule properties and 1/6th share each in "B" and "C" schedule properties by metes and bounds. The 2nd defendant is entitle 5/8th share in "A" schedule properties and 2/6th share in the "B" schedule properties. The 3rd defendant is entitle 1/6th share in the "B" and "C" schedule properties.” 9. Being further aggrieved by the same, defendant Nos.1 to 3 have preferred the present second appeal. 10. A co-ordinate Bench of this Court by order dated 11.03.2020 admitted the appeal for further consideration on the following substantial question of law: “Whether the Courts could have granted any share to the plaintiffs (daughters of Parvathamma – first wife) in - 9 - HC-KAR NC: 2025:KHC:37293 RSA No. 185 of 2020 respect of the properties purchased in the name of defendants 1 and 2?” 11. Sri Nagraj S., learned counsel for the appellants reiterating the grounds urged in the appeal memorandum contended that in respect of ‘A’ schedule property, the property was succeeded by husband and wife i.e., the father and mother of the plaintiffs and defendant Nos.2 and 3 by way of a gift. ‘A’ schedule property totally measured to an extent of 5 acres 3 guntas and father had executed a Will in favour of the defendants, which is proved by examining and attesting witnesses. 12. Learned judge in the trial Court took into consideration the memo filed by the plaintiffs and upheld the validity of the Will insofar as bequeathing the share of the father of the plaintiffs to an extent of 0.21 guntas in ‘A’ schedule property. 13. However, in the share of plaintiffs mother, plaintiffs are entitled for their shares and that is the decree that has been passed in respect of ‘A’ schedule property. - 10 - HC-KAR NC: 2025:KHC:37293 RSA No. 185 of 2020 14. He would further contend that the appeal came to be admitted not on the question of ‘A’ schedule property, but on the question of the properties purchased by the defendant Nos.1 and 2, which are ‘B’ and ‘C’ schedule properties. 15. It is his case that there was a registered partition deed in the year 1985, which was registered on 28.08.1985. The said document is placed before the Court by the plaintiffs themselves marked as Ex.P5. 16. Admittedly, ‘B’ and ‘C’ schedule properties are purchased by the defendants after the said registered partition deed. Both the Courts ignored the said fact that the property purchased after the registered partition deed are the self acquired and individual properties of the defendants. Therefore, granting the share in ‘B’ and ‘C’ schedule property is called in question in this appeal. As such appeal came to be admitted on the aforesaid substantive question of law. 17. He would further contend that plaintiffs making a statement that ‘B’ and ‘C’ schedule properties are also joint family properties and therefore, they have got a share in the properties. ‘B’ and ‘C’ schedule properties are purchased by - 11 - HC-KAR NC: 2025:KHC:37293 RSA No. 185 of 2020 the defendants out of the joint family income cannot be countenanced in law, in view of the probative value of Ex.P5 and sought for allowing the appeal. 18. Per contra, Sri Bhanuprakash, learned counsel for the respondents/plaintiffs, supports the judgment of the trial Court as well as the First Appellate Court. 19. He would further contend that plaintiffs are satisfied with the judgment of the trial Court modified by the First Appellate Court. Therefore, they have not preferred any appeal. As per the modified decree of the First Appellate Court, plaintiffs are entitled for the share. Therefore, sought for dismissal of the appeal. 20. Having heard the arguments of both sides this Court perused the material on record meticulously. 21. On such perusal of the material on record, it is the case of the plaintiffs themselves that there was a registered partition deed on 28.08.1985. Ex.P5 is the certified copy of the registered partition deed, produced and relied on by the plaintiffs themselves. - 12 - HC-KAR NC: 2025:KHC:37293 RSA No. 185 of 2020 22. In the teeth of such a document placed on record by the plaintiffs themselves, the trial Court as well as the First Appellate Court ignoring the probative value of the registered partition deed and decreeing the suit of the plaintiffs as prayed for and modified by the First Appellate Court as referred to supra has thus, resulted in miscarriage of justice. 23. Further, whenever plaintiffs contend that the suit properties in ‘B’ and ‘C’ schedule are acquired out of joint family income, it is incumbent on the plaintiffs to show that there was sufficient joint family income and spillover of joint family income or surplus which could be used as a joint family nucleus for the defendants to purchase the property. 24. When there is a partition that has taken place much earlier to acquisition of ‘B’ and ‘C’ schedule property as is evident from Ex.P5, the question of existence of joint family income, spillover and joint family nucleus, utilized by the defendants for the purchase of ‘B’ and ‘C’ schedule properties cannot be countenanced in law, which has been misread by both the Courts. - 13 - HC-KAR NC: 2025:KHC:37293 RSA No. 185 of 2020 25. Therefore, the appeal needs to be allowed by answering the substantive question of law in favour of the appellants. 26. Accordingly, the following: ORDER (i) Regular Second Appeal is allowed. (ii) The judgment and decree, dated 23.04.2011 passed by Additional Civil Judge and JMFC., Tiptur in O.S.No.64/2009, modified by Senior Civil Judge and JMFC., Tiptur, in R.A.No.32/2011 in respect of ‘B’ and ‘C’ schedule property is hereby set aside. (iii) Plaintiffs are entitled to work out their shares in ‘A’ schedule property in the Final Decree Proceedings in accordance with law. (iv) No order as to costs. Sd/- (V SRISHANANDA) JUDGE MR