- 1 - HC-KAR NC: 2025:KHC:34064 RSA No. 1444 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 1444 OF 2013 (PAR) BETWEEN: 1. SMT RUKMINAMMA, AGED ABOUT 48 YEARS, W/O LATE GOVINDAPPA, R/O BIGANENAHALLI, DABBEGHATTA HOBLI, TURUVEKRE TALUK - 572227. 2. SMT ANNAPOORNAMMA, AGED ABOUT 30 YEARS, W/O SRI DAYANANDA, R/O GONITUMKUR, DABBEGHATTA HOBLI, TURUVEKERE TALUK - 572227. 3. SMT PRABHAMANI , AGED ABOUT 26 YEARS, W/O KRISHNAPPA, R/O KABBALLI, DEVANUR HOBLI, KADUR TALUK - 572227. 4. SMT GEETHA, AGED ABOUT 26 YEARS, D/O LATE GOVINDAPPA, R/O BIGANENAHALLI, DABBEGHATTA HOBLI, TURUVEKERE TALUK - 572227. …APPELLANTS (BY SRI R B SADASIVAPPA, ADVOCATE) Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:34064 RSA No. 1444 of 2013 AND: 1. SMT GANGAMMA, AGED ABOUT 62 YEARS, W/O LATE GOVINDAPPA AS PER ORDER DT 16.03.2023 THE RESPONDENT NO.1 IS DEAD AND HIS LR'S RESPONDENT NO.2 TO 4. 2. SMT MANJULAMMA, AGED ABOUT 43 YEARS, D/O LATE GOVINDAPPA, W/O SRI GOVINDAIAH, R/O SRI GANDADANAAGAR PEENYA II STAGE, HEGGANAHALLI, BANGALORE - 560 091. 3. SMT NAGARATHNAMMA @ JAYAMMA, AGED ABOUT 41 YEARS, D/O LATE GOVINDAPPA, W/O SRI RAMANNA, R/O DEVANUR, NEAR RAILWAY STATION KADUR TALUK - 572227. 4. SMT BHAGYAMMA, AGED ABOUT 38 YEARS, D/O LATE GOVINDAPPA, W/O SRI BYRAPPA, R/O RAMANAGAR, BANGALUR DISTRICT. 5. SMT SHARADAMMA, AGED ABOUT 61 YEARS, W/O BADAGI NANJACHARI, R/O BIGANENAHALI, DABBEGHATTA HOBLI, TURUVERKERE TALUK - 572227. 6. CHIKKALINGEGOWDA, - 3 - HC-KAR NC: 2025:KHC:34064 RSA No. 1444 of 2013 AGED ABOUT 66 YEARS, S/O KEMPALINGEGOWDA, R/O BIGANENAHALLI, DABBEGHATTA HOBLI, TURUVEKERE TALUK - 572227. 7. SRI B R CHIKKASHETTY, AGED ABOUT 45 YEARS, S/O RANGASETTY, R/O BIGANENAHALLI, DABBEGHATTA HOBLI, TURUVEKERE TALUK - 572227. …RESPONDENTS (BY SRI C R GOPALASWAMY, SR. ADVOCATE FOR SRI BHARGAV G, ADVOCATE FOR R2 TO R4, R2 TO R4 ARE TREATED AS LRS OF DECEASED R1 V.C.O. DT 16.03.2023 R5 TO R7 ARE SERVED) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 3.4.2012 PASSED IN R.A.NO.172/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, TIPTUR, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGEMENT AND DECREE DTD 18.8.2010 PASSED IN OS.NO.109/2007 ON THE FILE OF THE CIVIL JUDGE (SR.DN)l & JMFC., TURUVEKERE. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE - 4 - HC-KAR NC: 2025:KHC:34064 RSA No. 1444 of 2013 ORAL JUDGMENT This Second Appeal is arising from the divergent finding in a suit for partition and separate possession. One Govindappa was the propositus. He had two wives. First wife is Gangamma. Second wife is Rukminamma. 2. The suit is filed by first wife and her 3 daughters namely Manjulamma, Nagarathnamma and Bhagyamma. Suit is filed against second wife Rukminamma and her 3 daughters namely Annapoornamma, Prabhamani and Geetha. 3. Govindappa died in the year 2007. The suit was filed after his demise. 4. The plaintiffs claim that all the suit schedule properties are ancestral and joint family properties of Govindappa and they disputed the gift deed in favour of Rukminamma said to have been executed by Govindappa. - 5 - HC-KAR NC: 2025:KHC:34064 RSA No. 1444 of 2013 5. The defendants contested the suit disputing the plaintiffs’ claim that the suit schedule properties are ancestral and joint family properties of Govindappa. 6. Defendant No.1/second wife claimed exclusive right over the properties on the basis of registered gift deed date 28.07.2003 said to have been executed by Govindappa. 7. Defendants No.5 to 7 claim to have purchased item No.5 & 7 properties from Govindappa and item No.9 property is said to have been sold by defendant No.1. 8. The Trial Court framed the following issues:- 1. Whether the plaintiffs prove that plaintiff No.1 is the legally wedded wife and plaintiff No.2 to 4 are the children of late Sri Govindappa S/o Mudalagiraiah of Biganahalli village? 2. Whether the plaintiffs prove that the suit schedule properties are the ancestral and - 6 - HC-KAR NC: 2025:KHC:34064 RSA No. 1444 of 2013 joint family properties of themselves and defendant No.2 to 4? 3. Whether the plaintiffs prove that the alleged gift deed dated 28.07.2003 and sale deeds dated 04.08.2003, 31.07.2003 and 18.11.2004 in favour of defendant 1 to 7 are not binding on them? 4. Whether the plaintiffs are entitled for reliefs claimed? 5. What order or decree? 9. It is relevant to notice that the Trial Court had granted a decree for partition as under:- “Plaintiffs No.1 to 4 are entitled to 1/16th share each in the properties mentioned in Ex.P23 and defendants No.2 to 4 are entitled to 1/28th share each in the joint family properties purchased by late Govindappa.” 10. The Trial Court has answered issue No.3 partly in affirmative and granted degree for partition in respect of the properties covered under Ex.P-23, the mutation in - 7 - HC-KAR NC: 2025:KHC:34064 RSA No. 1444 of 2013 favour of Govindappa in respect of 5 properties named therein. 11. The defendants have accepted the decree. The plaintiffs have questioned the decree by filing an appeal. 12. First Appellate Court has allowed the appeal in part and granted 2/7th share to each of plaintiffs No.2 to 4 and 1/28th share to plaintiff No.1. First Appellate Court did not record any specific finding as to the entitlement of the defendants. 13. Hence, the present second appeal by the defendants. This appeal was admitted on 19.02.2020 to answer the following substantial questions of law:- "1. Whether the defendants claiming to be the children of the second wife are entitled to a per capita share in the suit schedule properties which were admittedly ancestral properties in respect of item Nos.3 to 7.? 2. Whether the Courts below were justified in holding that suit item Nos.1, 2, 8 to 10 - 8 - HC-KAR NC: 2025:KHC:34064 RSA No. 1444 of 2013 were the accretion out of the ancestral properties?" 14. The plaintiffs have contended that the all the suit schedule properties are ancestral joint family properties. Thus this Court is of the view that there has to be an additional substantial question of law on this point. In addition the appellants have filed second appeal seeking larger share and have not filed any appeal challenging decree awarding lesser share. Hence one more substantial question of law relating to second appeal by the defendant who has not challenged the decree of the trial Court by filing first appeal is required to be framed. 15. Hence the following additional substantial questions of law are framed:- (1) "Whether the plaintiffs established that all the properties are the ancestral and joint family properties." (2) "Whether the defendants/appellants can file the second appeal seeking larger share - 9 - HC-KAR NC: 2025:KHC:34064 RSA No. 1444 of 2013 when they have not filed first appeal to the part of the decree of the trial court awarding lesser share" 16. Learned counsel for the appellants-defendants submits that there is no pleading in the plaint to the effect that all the suit schedule properties are ancestral properties or the properties acquired from the nucleus of the ancestral properties. It is also submitted that the plaintiffs have sought 1/7thshare in the suit schedule properties, thereby they have admitted that each of the parties to the suit is having 1/7thshare in the suit schedule properties. This being the position, First Appellate Court could not have modified the decree granting share as awarded in the impugned judgment and decree. 17. It is further submitted that the judgment and decree passed by the Trial Court was in favour of the present appellants, as such, defendants had no cause of action to question the aforementioned judgment and decree passed by the Trial Court. Thus, notwithstanding - 10 - HC-KAR NC: 2025:KHC:34064 RSA No. 1444 of 2013 the fact that there was no appeal or cross-objection filed by the defendants, the present appellants can assail the correctness of the finding relating to the nature of the properties recorded by the Trial Court. 18. Learned Senior Counsel appearing for the respondent Nos.2 to 4/plaintiffs would submit that the Trial Court has decreed the suit in part. It has recorded a categorical finding that the suit properties are ancestral properties and though three properties purchased in the name of Govindappa are purchased from the income derived from the ancestral properties and thereby, it has concluded that the properties are ancestral properties and thereafter, it has awarded share to the plaintiffs in the properties covered under Ex.P23, the mutation entry and also awarded share to the plaintiffs and defendants in the remaining properties. 19. The defendants have not questioned the finding relating to nature of the properties recorded by the Trial - 11 - HC-KAR NC: 2025:KHC:34064 RSA No. 1444 of 2013 Court. The plaintiffs being aggrieved by the judgment and decree granting share to the defendants filed an appeal and First Appellate Court has rightly held that the gift deed executed by defendant No.1 is not valid, as the properties are the joint family properties and held that the sale deed executed by Govindappa are valid, as the properties are sold for family necessity. 20. Learned counsel for the appellants-defendants by way of reply would contend that the daughters of the second wife are entitled to the benefit under amended Section 6 of Hindu Succession Act, 1956. It is also urged that in the cross- examination, P.W.1, has admitted that the properties are inherited from the propositus Mudala Giriaiah and after the demise of Mudala Giriaiah, his 3 sons, including Govindappa partitioned the properties and after partition, those properties became the separate properties of Govindappa. Govindappa did not have any male issues, as such, those properties continued to be his separate properties till his death and after his demise, the - 12 - HC-KAR NC: 2025:KHC:34064 RSA No. 1444 of 2013 properties would devolve upon the daughters from the first wife as well as the daughters from the second wife equally. 21. Learned Senior Counsel appearing for respondents No.2 to 4 countering the aforementioned submission would submit that Govindappa died in the year 2007 i.e. after commencement of amended Section 6 of Hindu Succession Act, 1956 and the daughters from First wife have acquired the status of co-parceners, and Govindappa had already sold 2 properties in his lifetime and has gifted the property before the commencement of Hindu Succession Act, 1956. As such, the daughters from the second wife cannot claim benefit of amended Section 6 of 1956. 22. This Court has considered the contentions raised at the Bar and perused the records. 23. This Court has perused the averments made in the plaint. It is rightly contended by learned counsel for - 13 - HC-KAR NC: 2025:KHC:34064 RSA No. 1444 of 2013 the appellants that in the plaint, the plaintiffs have not specified as to which properties are ancestral properties and which properties are self-acquired properties. Mode of acquisition of the properties is also not clearly mentioned in the plaint. 24. The defendants have also not specifically stated as to which properties are self-acquired properties and which properties are ancestral properties and which properties are acquired from the income derived from the ancestral properties. The defence of the defendants is that of a total denial. 25. However, the Trial Court has framed issue No.2 which reads as under: “Whether the plaintiffs prove that the suit schedule properties are the ancestral and joint family properties of themselves and defendant Nos.2 to 4?”. - 14 - HC-KAR NC: 2025:KHC:34064 RSA No. 1444 of 2013 26. After considering the evidence on record, the Trial Court has concluded that properties at Sl.Nos.1, 2 and 9 of the schedule, though purchased in the name of Govindappa are joint family properties on the premise that those properties are purchased from the income derived from the ancestral properties. This finding, which has resulted in an adverse decree against the defendants is not questioned by the defendants by filing an appeal. 27. The plaintiffs assailed the decree granting equal share to the defendants in some of the properties. First appeal filed by the plaintiffs is partly allowed and the impugned judgment and decree is passed. 28. First Appellate Court has noticed that certain properties are sold by Govindappa himself and the sale is for the benefit of the family and he has sold the property as a family manager. 29. As far as the other properties covered under the gift deed said to have been executed by Govindappa are - 15 - HC-KAR NC: 2025:KHC:34064 RSA No. 1444 of 2013 concerned, First Appellate Court has held that since the property being the ancestral joint family property where the plaintiffs are also having share, the property could not have been gifted by Govindappa and accordingly, the gift deed is said to be invalid. Under these circumstances, the First Appellate Court has modified the share and has awarded 2/7thshare to each of plaintiff Nos.2 to 4 and 1/28thshare to plaintiff No.1, first wife of Govindappa and share of the defendants is not earmarked. 30. It is not in dispute that Govindappa married two women after the commencement of Hindu Marriage Act, 1955. Thus, the second marriage is void. However, he has 3 children from the second marriage. The position of law is that children from the second marriage will inherit the property of the father after his demise. Govindappa died in year 2007. 31. After his death in 2007, Govindappa is survived by plaintiff No.1, first wife, and 3 children, namely - 16 - HC-KAR NC: 2025:KHC:34064 RSA No. 1444 of 2013 plaintiffs Nos.2 to 4. Children of Govindappa from first wife will be the coparceners and the Court has to assume a notional partition immediately before his death, as some of the properties are held to be coparcenary properties and other as having been acquired from income of coparcenary properties. 32. Each of plaintiffs No.2 to 4, the three 3 children from first wife and first wife of Govindappa will have 1/5th share. 33. 1/5th share of Govindappa will devolve upon his 3 daughters from first wife as well as his first wife, and 3 daughters from second wife. Thus, each of the plaintiffs will inherit 1/5th share + 1/35th share. Each of defendant No.2 to 4 will inherit 1/35th share. 34. It is stated that plaintiff No.1 the first wife of Govindappa died during the pendency of the proceeding. Consequently the plaintiffs No.2 to 4 will have 32/105 - 17 - HC-KAR NC: 2025:KHC:34064 RSA No. 1444 of 2013 share and each of defendants No.2 to 4 will have 1/35th share. 35. It is noticed that the First Appellate Court has passed the decree for ascertaining the mesne profits and there is no error in the decree passing mesne profits in favour of the plaintiffs, as the defendants are said to be in possession of the properties. 36. Hence, the following: ORDER (i) The appeal is disposed of. (ii) The judgment and decree passed in O.S.No.109/2007 dated 18.08.2010 on the file of the Civil Judge (Sr.Dn.) Turuvekere and the judgment and decree passed in R.A.No.172/2010 dated 03.04.2012 on the file of the Fast Track Court, Tiptur are hereby modified. (iii) Each of plaintiffs No.2 to 4 will have 32/105th share and each of defendants - 18 - HC-KAR NC: 2025:KHC:34064 RSA No. 1444 of 2013 No.2 to 4 will inherit 1/35th share in the share in the suit properties. (iv) It is noticed that the First Appellate Court has granted mesne profits and there is no error in the decree passing mesne profits in favour of the plaintiffs, as the defendants are said to be in possession of the properties. Sd/- (ANANT RAMANATH HEGDE) JUDGE CHS/ST List No.: 1 Sl No.: 10