- 1 - NC: 2025:KHC-D:5898 RSA No. 100949 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 2ND DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100949 OF 2018 (PAR-) BETWEEN: SMT. SAVITRI KOM. PANDURANG NAIK, AGED 52 YEARS, OCC: HOUSEHOLD, R/O. YETTINABAIL, TQ: KUMTA-581343, DIST: UTTARA KANNADA. …APPELLANT (BY SRI. A.P. MURARI, ADVOCATE) AND: 1. NARAYAN S/O. HONNAPPA GAONKAR, AGE: 68 YEARS, OCC: AGRICULTURIST, R/O. YETTINABAIL, TQ: KUMTA-581343, DIST: UTTARA KANNADA. 2. MANI @ MANESHWAR S/O. HONNAPPA GAONKAR, AGE: 56 YEARS, OCC: AGRICULTURIST, R/O. YETTINABAIL, TQ: KUMTA-581343, DIST: UTTARA KANNADA. 3. NAGAMMA W/O. HONNAPPA GAONKAR, AGE: 90 YEARS, OCC: HOUSEHOLD, R/O. YETTINABAIL, TQ: KUMTA-581343, DIST: UTTARA KANNADA. 4. RADHA KOM. RAMACHANDRA NAIK, AGE: 56 YEARS, OCC: AGRICULTURIST AND HOUSEHOLD, R/O. SHINGANMAKKI-581343, POST: BELLAMBAR, TQ: ANKOLA, DIST: U.K. ASHPAK KASHIMSA MALAGALADINNI Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:5898 RSA No. 100949 of 2018 5. BEBI KOM BEERANNA NAYAK, AGE: 66 YEARS, OCC: HOUSEHOLD, R/O. BAVIKERI-581343, TQ: ANKOLA, DIST: UTTARA KANNADA. 6. BAGI KOM. KESHAV NAIK, AGE: 64 YEARS, OCC: HOUSEHOLD, R/O. SHINGANMAKKI, POST: BELLAMBAR, TQ: ANKOLA, DIST: U.K.-581314. 7. MUKTA KOM. ASHOK GUNAGA, AGE: 48 YEARS, OCC: HOUSEHOLD, R/O. YETTINBAIL-581343, TQ: KUMTA, DIST:UTTARA KANNADA. …RESPONDENTS (BY SRI. H.R. DESHPANDE, ADVOCATE R2 & R3; R1, R4-R7 ARE SERVED & UNREPRESENTED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO ALLOW THIS APPEAL, SETTING ASIDE THE IMPUGNED JUDGMENT AND DECREE IN R.A.NO.13/2014 DATED 09.11.2017 PASSED BY THE LEARNED SENIOR CIVIL JUDGE, KUMTA, AND RESTORE THE JUDGMENT AND DECREE IN O.S.NO.11/2008 DATED 03.05.2014 PASSED BY THE LEARNED CIVIL JUDGE, KUMTA AND ETC. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH - 3 - NC: 2025:KHC-D:5898 RSA No. 100949 of 2018 ORAL JUDGMENT This appeal is filed by defendant No.6 assailing the judgment and decree dated 09.11.2017 in R.A.No.13/2014 passed by the Senior Civil Judge, Kumta (for short “the First Appellate Court”) allowing the appeal in part and modifying the shares of the parties allotted in the judgment and decree dated 03.05.2014 in O.S.No.11/2008 passed by the Civil Judge Kumta (for short “the Trial Court”) decreeing the suit of the plaintiff in part. 2. For the purpose of convenience, the parties are referred to as per their rank before the Trial Court. 3. It is the case of the plaintiff that the plaintiff and defendant No.2 to 7 are the children of late-Honnappa and defendant No.1-Nagamma. It is stated that the suit schedule properties are the joint family properties of late Honnappa and therefore, the plaintiff and defendant No.1 to 7 are entitled for 1/8th share each in the suit schedule properties. It is further averred in the plaint that the plaintiff has caused legal notice seeking partition and same was not considered by defendant No.2, hence, the plaintiff has filed O.S.No.11/2008 seeking - 4 - NC: 2025:KHC-D:5898 RSA No. 100949 of 2018 relief of partition and separate possession in respect of the suit schedule properties. 3.1. After service of notice, the defendants entered appearance and filed written statement. Defendant No.2, who was the contesting defendant, filed separate written statement admitting the relationship between the parties. It is the specific contention of defendant No.2 that after the death of his father- Honnappa during 1978, the plaintiff and defendant No.2 have effected partition in the presence of the panchas and divided the properties as per oral partition dated 10.04.1982 and therefore, it is the contention of defendant No.2 that in view of the oral partition said to have been made during 1982, the suit is liable to be dismissed. 3.2. Defendant No.3 to 6 have filed detailed written statement admitting the relationship of the parties and stated that they are entitled for 1/8th share each in the suit schedule property. 3.3. Defendant No.1 and 7 have filed written statement contending that they are cultivating the suit schedule properties commonly and denied the partition as alleged by defendant - 5 - NC: 2025:KHC-D:5898 RSA No. 100949 of 2018 No.2. Hence, sought for allotment of respective shares in the suit schedule properties. 3.4. The Trial Court, based on the pleadings of the parties, framed issues for its consideration. In order to prove his case, the plaintiff examined himself as PW1 and produced 12 documents, which were marked as Ex.P1 to Ex.P12. The defendants have examined two witnesses as DW1 and DW2 and produced three documents, which were marked as Ex.D1 to Ex.D3. 3.5. The Trial Court, after considering the material on record, decreed the suit and allotted shares in favour of the parties. Feeling aggrieved by the same, the defendant No.2 has filed R.A.No. 13/2014 before the First Appellate Court and same was contested by the plaintiff. 3.6. The First Appellate Court, after considering the material on record, by its judgment and decree dated 09.11.2017, allowed the appeal in part and modified the shares of the parties. Feeling aggrieved by the same, the defendant No.6 has preferred this appeal. - 6 - NC: 2025:KHC-D:5898 RSA No. 100949 of 2018 4. This Court, vide order dated 30.01.2023 formulated the following substantial question of law: “Whether the appellant is entitled for equal share in the suit property?” 5. I have heard Sri. A.P.Murari, learned counsel appearing for the appellant, and Sri. H. R. Deshapande, learned counsel appearing for the respondent No.2 and 3. 6. It is contended by the learned counsel appearing for the appellant that both the courts below have committed an error in not considering the fact that defendant No.2 to 7 along with plaintiff are the children of late-Honnappa and defendant No.1 and therefore, the modification of shares have to be made in the light of the judgment of the Hon’ble Supreme Court in the case of Vineeta Sharma Vs. Rakesh Sharma and Others1. 7. Per contra, learned counsel appearing for respondent No.2 and 3 sought to justify the impugned judgment and decree passed by both the Courts below. 1 AIR 2020 SC 3717 - 7 - NC: 2025:KHC-D:5898 RSA No. 100949 of 2018 8. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below and perused the records. It is not in dispute that the original propositus-Honnappa died leaving behind his wife- Nagamma (defendant No.1) and seven children i.e., plaintiff and defendant No.2 to 7. Taking into consideration the fact that the properties mentioned in the suit are the joint family properties of the plaintiff and defendants 1 to 7 and after the death of original propositus-Honnappa, same has to be devolved amongst the plaintiff and defendants equally. In that view of the matter, following the declaration of law made by the Hon’ble Supreme Court in the case of Vineeta Sharma (supra), I am of the view that the plaintiff and defendant No.1 to 7 are entitled for 1/8th share each in the suit schedule properties. Accordingly, I pass the following: ORDER i) The appeal is allowed in part. - 8 - NC: 2025:KHC-D:5898 RSA No. 100949 of 2018 ii) The judgment and decree dated 09.11.2017 in R.A.No.13/2014 passed by the Senior Civil Judge, Kumta and the judgment and decree dated 03.05.2014 in O.S.No.11/2008 passed by the Civil Judge Kumta are hereby allowed in part holding that the plaintiff and defendant No.1 to 7 are entitled for 1/8th share each in the suit schedule properties. iii) In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. Sd/- (E.S.INDIRESH) JUDGE YAN CT-MCK List No.: 1 Sl No.: 35