- 1 - HC-KAR NC: 2025:KHC:30545 RSA No. 90 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.90 OF 2016 (PAR) BETWEEN: 1. SMT. VIMALAKSHAMMA D/O MAHADEVAPPA W/O BASAVARAJAPPA AGED ABOUT 39 YEARS HOUSEHOLD AND AGRICULTURIST R/O MIRALENAHALLI VILALGE AMRUTHAPURA HOBLI TARIKERE TALUK CHIKMAGALUR DISTRICT-577228. …APPELLANT (BY SRI.R.B.SADASIVAPPA, ADVOCATE) AND: 1. 1(a). B S MAHADEVAPPA SINCE DECEASED REP. BY LRS. SMT. REVAMMA W/O LATE B.S. MAHADEVAPPA AGED ABOUT 74 YEARS R/O MIRLENAHALLI AMRUTHAPURA CHICKMAGALUR DISTRICT-577228. Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30545 RSA No. 90 of 2016 2. BANDERA C E KALLESHAPPA S/O LATE ERAPPA AGED ABOUT 65 YEARS AGRICULTURIST R/O CHIKKANALLURU VILLAGE HIRENALLURU HOBLI KADUR TALUK CHIKMAGALUR DISTRICT -577226. 3. BANDERA C E NANJUNDAPPA S/O LATE ERAPPA AGED ABOUT 59 YEARS AGRICULTURIST / PROFESSOR DEPARTMENT OF MATHEMATICS R/O BINDU NILAYA 2ND CROSS VIJAYANAGARA BANGALORE - 560040. 4. SMT. SUSHEELAMMA D/O CHANNAPPA AGED ABOUT 49 YEARS R/O NAGENAHALLI VILLAGE HIRENALLURU HOBLI KADUR TALUK CHIKMAGALUR DISTRICT-577228. …RESPONDENTS (BY SRI. G. SANJAY, ADVOCATE FOR R2 & R3; V/O DATED 06.08.2025 G. SANJAY, ADVOCATE FOR R1(a)) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 26.11.2015 PASSED IN R.A. NO.27/2014 ON THE FILE OF THE II ADDL. DISTRICT JUDGE, CHIKKAMAGALURU, ALLOWING THE APPEAL AND SETTING - 3 - HC-KAR NC: 2025:KHC:30545 RSA No. 90 of 2016 ASIDE THE JUDGMENT AND DECREE DATED 29.01.2014 PASSED IN O.S NO.28/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRL. JMFC., TARIKERE. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT Learned counsel for the parties request for final disposal of the appeal as such, by consent, appeal was heard on merits. 2. This Regular Second Appeal is filed by the plaintiff, challenging the judgment and decree dated 26.11.2015 passed in R.A. No. 27 of 2014 on the file of the II Additional District Judge, Chikkamagaluru, allowing the appeal and setting aside the judgment and decree dated 29.01.2014 passed in O.S. No. 28 of 2012 on the file of the Senior Civil Judge & Principal - 4 - HC-KAR NC: 2025:KHC:30545 RSA No. 90 of 2016 JMFC, Tarikere, which had decreed the suit of the plaintiff in part. 3. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court. 4. The plaint averments are that the suit schedule properties are the joint family properties of one Siddappa, and the plaintiff has claimed a share in the said properties. It is the case of the plaintiff that, the defendants did not accept the said claim made by him and as such, the plaintiff filed a suit in O.S. No. 28 of 2012 before the Trial Court, seeking partition and separate possession of the suit schedule properties. 5. After service of summons, defendants 1 and 2 entered appearance and filed their written statements denying the plaint averments. Defendants 3 and 4 remained absent and were placed ex-parte. Defendant - 5 - HC-KAR NC: 2025:KHC:30545 RSA No. 90 of 2016 No. 1 specifically contested the matter by stating that Item No.11 of the suit schedule property was acquired by him through a registered Sale Deed dated 06.04.1967, and the said property is his self-acquired property. Accordingly, he sought dismissal of the suit. 6. On the basis of the rival pleadings, the trial Court has formulated issues for consideration. 7. In order to prove their case, the plaintiff examined herself as PW1 and got marked 20 documents as Exhibits P1 to P20. On the other hand, defendant No.1 examined himself as DW1. No other evidence was adduced by the defendants.. 8. The Trial Court, after considering the material on record, by its judgment and decree dated 29.01.2014, decreed the suit of the plaintiff in part. Aggrieved by the same, defendant No.3 preferred Regular Appeal in R.A. No. 27 of 2014 before the First Appellate Court. - 6 - HC-KAR NC: 2025:KHC:30545 RSA No. 90 of 2016 The said appeal was contested by respondents 1 to 3 therein. The First Appellate Court, after re- appreciating the evidence and material on record, by its judgment and decree dated 26.11.2015, allowed the appeal and set aside the judgment and decree passed by the Trial Court in O.S. No. 28 of 2012. Being aggrieved by the said judgment and decree of the First Appellate Court, the plaintiff/appellant has preferred this Regular Second Appeal under Section 100 of the CPC. 9. This Court, vide order dated 25.01.2017, formulated the following substantial question of law: "Whether the First Appellate Court has committed any serious legal error in holding that, under Section 6 of the Hindu Succession Act (as amended), the daughter has no right to file a suit for partition and separate possession during the lifetime of her father ?" - 7 - HC-KAR NC: 2025:KHC:30545 RSA No. 90 of 2016 10. I have heard Sri. R. B. Sadashivappa, learned counsel for the appellant and Sri. G. Sanjay, learned counsel appearing for the respondent Nos. 2 and 3. 11. Sri. R. B. Sadasivappa, learned counsel for the plaintiff/appellant submits that the appellate court has committed an error in not considering the fact that the plaintiff is only daughter of Mahadevappa, who is son of deceased late Siddappa and according to Hindu Succession Act, the daughters are also treated as coparceners and have equal right in the suit schedule property. Accordingly, he prayed for interference with the impugned judgment and decree passed by the court below. 12. Per contra, Sri. G. Sanjay, learned counsel for the respondent Nos. 2 and 3 sought to justify the impugned judgment and decree passed by the First Appellate Court. - 8 - HC-KAR NC: 2025:KHC:30545 RSA No. 90 of 2016 13. Heard the learned counsel appearing for both the parties and perused the material on records. 14. On careful perusal of the findings recorded by both the courts below, it is seen that there is no dispute regarding the relationship between the parties. However, defendant No.2 appeared in person but did not contest the matter, and defendant No.3 and 4 were placed ex-parte before the Trial Court. Considering this aspect, and the findings recorded by the First Appellate Court, it is evident that proper appreciation of the material evidence is necessary. Further, the appearance of all parties before the Trial Court is essential to establish their respective claim on merits and to determine whether the suit schedule properties are the joint family properties or the self- acquired properties of defendant No.1, as claimed in the written statement. - 9 - HC-KAR NC: 2025:KHC:30545 RSA No. 90 of 2016 15. In view of the above, this Court finds it appropriate to remand the matter to the Trial Court for fresh consideration. The substantial question of law is answered accordingly. Hence, I pass the following: ORDER i) Regular Second Appeal is allowed; ii) The judgment and decree dated 26.11.2015 passed in R.A. No. 27 of 2014 on the file of II Additional District Judge, Chikkamagaluru and the judgment and decree dated 29.01.2014 passed in O.S. No. 28 of 2012, on the file of Senior Civil Judge and Principal JMFC, Tarikere, are hereby set aside iii) The matter is remanded to the Trial Court for fresh consideration, after affording an opportunity of hearing to all the parties. iv) It is open to the parties to adduce further evidence, if so advised. - 10 - HC-KAR NC: 2025:KHC:30545 RSA No. 90 of 2016 v) The Trial Court is directed to dispose of the suit expeditiously. vi) In order to avoid further delay in the matter, as the parties are represented by their learned counsel, the parties are directed to appear before the Trial Court on 04.09.2025 at 11:00 AM without further notice. vii) All contentions of the parties are kept open. SB List No.: 1 Sl No.: 16 SD/- (E.S.INDIRESH) JUDGE