- 1 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1203/2013 (PAR) BETWEEN: 1. SMT HONAMMA SINCE DECEASED BY LEGAL REPRESENTATIVES 1(A) SRI RAMA S/O LATE MUNDAPPA AGED ABOUT 56 YEARS No.3-112, PERLA HOSAMANE MANGALURU KANNUR MANGALURU, DK DISTRICT – 575 007 1(B) SMT. SUMATHI W/O LAXMANA MUKHARI AGED ABOUT 54 YEARS No.3-82, BADDUR HOUSE MERAMAJAL, BANTWAL POST AND TALUK DAKSHINA KANNADA DISTRICT – 574 143 1(C) SMT CHENNAMMA AGED ABOUT 53 YEARS C/O SEENA MUKHARI No.5-337, BELIJABETTU HOUSE GURUPURA POST, MULURU VILLAGE MANGALORE, D.K. DISTRICT – 574 145 1(D) SRI. BALAKRISHNA S/O LATE MUNDAPPA AGED ABOUT 48 YEARS No.3-112, VEERA NAGARA MANGALORE, KANNUR MANGALURU, D.K. DISTRICT – 575 007 Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 1(E) SMT. BABY W/O SURESH AGED ABOUT 45 YEARS No.7-11-P-18-11 SMASHANA COMPOUND NEAR HINDUSTAN COMPANY BOLOOR KODIYALBAIL, MANGALORE D.K. DISTRICT – 575 003 1(F) SRI. RAGHAVA S/O LATE MUNDAPPA AGED ABOUT 40 YEARS No.3-112, VEERA NAGARA MANGALORE, KANNUR MANGALURU, D.K. DISTRICT – 575 007 2. JAYA D/O LATE CHANDU, AGED ABOUT 44 YEARS, R/O BELLURMANI, PAJEER POST, BANTWAL TALUK, D.K.DISTRICT. – 574 259 3. SUNDARA S/O LATE CHANDU, AGED ABOUT 42 YEARS, R/O PERLA HOSAGUDDE HOUSE, KANNUR, MANGALORE TALUK, DAKSHINA KANNADA DISTRICT – 575 328 4. KRISHNAPPA S/O LATE CHANDU, AGED ABOUT 40 YEARS, R/O. PERLA HOSAGUDDE HOUSE, KANNUR, MANGALORE TALUK, DAKSHINA KANNADA DISTRICT – 575 328 5. YASHODA D/O LATE CHANDU, AGED ABOUT 36 YEARS, - 3 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 R/O PERLA HOSAGUDDE HOUSE, KANNUR, MANGALAORE TALUK, DAKSHINA KANNADA DISTRICT – 575 328 6. PRABHAKARA S/O LATE CHANDU, AGED ABOUT 36 YEARS, R/O PERLA HOSAGUDDE HOUSE, KANNUR, MANGALORE TALUK, DAKSHINA KANNADA DISTRICT. 7. 7(A) SMT.NAGAMMA SINCE DECEASED BY LEGAL REPRESENTATIVES MS. NISHMITHA S D/O LATE UMESH CHANDRA S AGED ABOUT 34 YEARS 7(B) SRI. RITESH S S/O LATE UMESH CHANDRA S AGED ABOUT 31 YEARS 7(C) SRI. DHANUSH S S/O LATE UMESH CHANDRA S AGED ABOUT 30 YEARS ALL ARE R/AT #21-3-143/1 BASA COMPOUND MANGALADEVI ROAD ACHARI HITHLU ATTAWARA EMMEKERE, MANGALURU MANGALURU, D.K. DISTRICT- 575 001 …APPELLANTS [BY SRI. UDAYA SHANKAR RAI P., ADVOCATE FOR A1(A-F) AND A7(A-C) & APPELLANTS] - 4 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 AND: 1. RAMANI W/O LATE MUNDARA, AGED ABOUT 51 YEARS, 2. KAMINI D/O LATE MUNDARA, AGED ABOUT 31 YEARS, 3. UMANATHA S/O LATE MUNDARA, AGED ABOUT 28 YEARS, 4. NAVEENA S/O LATE MUNDARA, AGED ABOUT 51 YEARS, ALL ARE R/O BELLURMANI, PAJEER POST, BANTWAL TALUK, D.K.DISTRICT – 574 259 .....RESPONDENTS (BY SRI. O. SHIVARAMA BHAT, ADVOCATE FOR R1 TO R4) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 19.3.2013 PASSED IN R.A.NO.89/2009 ON THE FILE OF II ADDITIONAL DISTRICT JUDGE, D.K, MANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 28.7.2009 PASSED IN OS.NO.69/2007 ON THE FILE OF CIVIL JUDGE (SR.DN.) AND JMFC, BANTWAL, D.K. DISTRICT. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI - 5 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 ORAL JUDGMENT 1. This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 19.03.2013 passed in RA No.89/2009 by the learned II Additional District Judge, D.K., Mangaluru. 2. For convenience, the parties are referred to based on their ranking before the trial Court. The appellants were the plaintiffs, and the respondents were the defendants. 3. Brief facts, leading rise to the filing of this appeal are as follows: 4. The plaintiffs filed a suit against the defendant for a partition and separate possession regarding the suit ‘A’ schedule property. It is contended that suit ‘A’ schedule property was obtained by Chalagini by one Angara and his brother Gruva from one Bajal D’soza. Angara is - 6 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 the common ancestor of the plaintiff. It is contended that one Mudara, the brother of plaintiff No.1, had filed Form No.7 before the Land Tribunal after the introduction of the Karnataka Land Reforms (Amendment) Act, 1974, as one of the members of the joint family. Plaintiff No.1 and the deceased, Mudara, are descendants of the common ancestors, by name, Angara. The land Tribunal granted occupancy rights in favour of Sri.Mudara and after his demise, Mudara had left behind his legal representatives, i.e. defendants Nos.1 to 4. The agricultural activities on the suit schedule properties were carried out by plaintiff No.3, and a house was constructed on the suit schedule property. The plaintiffs and defendants are members of a Hindu undivided family, and no partition has been effected between the parties to the suit. Hence, a cause of action arose for - 7 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 the plaintiffs to file a suit for partition and separate possession and prays to decree the suit. 5. Defendant Nos.1 to 4 filed a written statement denying that the Land Tribunal granted the suit schedule properties in the name of late Mudara for and on behalf of the joint family. It is contended that the said suit schedule property was granted in favour of Mudara in the individual capacity, and not for the benefit of the entire family. It is also contended that the plaintiffs have no right, title or interest to claim a share in the suit ‘A’ schedule properties. Hence, prays to dismiss the suit. 6. Defendant No.5 filed a written statement admitting the case of the plaintiffs and claimed her share. - 8 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 7. The Trial Court, based on the pleadings of the parties, framed the following issues: “1. Whether the plaintiffs prove that suit schedule properties were granted by Land Tribunal in the name of late Mudara for and on behalf of the joint family? 2. Whether the plaintiffs are entitled for the relief of partition and separate possession as prayed for 3. If so, to what extent? 4. What order or decree? Addl. Issue: 1. Whether defendants prove that suit is barred by principles of estoppels, waiver, acquiescence and limitation?” 8. The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW1, and six documents were marked as Exs.P1 to P6. In rebuttal, defendant No.5 was examined as DW1, and defendant No.1 was examined as DW2, and six - 9 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 documents were marked as Exs.D1 to D6. The Trial Court, after recording the evidence, hearing both sides, and assessing the verbal and documentary evidence, answered issue Nos.1 and 2 in the affirmative, issue No.3 as 1/4th share, additional issue No.1 in the negative, and issue No.4 as per the final order. 9. Consequently, the suit of the plaintiff was decreed vide judgment dated 28.07.2009. The suit ‘A’ schedule property is ordered to be partitioned into four equal shares. The plaintiff No.1 and defendant No.5 are entitled to 1/4th share each in the suit schedule properties. Plaintiffs Nos.2 to 7 and defendants Nos.1 to 4, together, are entitled to a 1/4th share each in the suit schedule properties. 10. Defendants Nos.1 to 4 being aggrieved by the judgment and decree dated 28.07.2019 passed in O.S. No.69/2007, preferred an appeal in R.A. - 10 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 No.89/2009, on the file of the learned II Additional District Judge, D.K., Mangaluru. 11. The First Appellate Court, after hearing learned counsel for the parties, framed the following points for consideration: “1. Whether the judgment of the trial Court is not based on the pleadings and evidence placed before the Court and principles of law and needs interference by this Court? 2. What order?” 12. The First Appellate Court, on reassessing the verbal and documentary evidence, answered point No.1 in the affirmative, and point No.2 as per the final order, and the appeal was allowed with costs vide judgment dated 19.03.2013. The Judgment and decree passed by the Trial Court in O.S. No.69/2007 was set aside. Consequently, the suit of the plaintiff in O.S. - 11 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 No.69/2007 was dismissed with costs. The plaintiffs, aggrieved by the judgment and decree passed in R.A. No.89/2009, filed this Regular Second Appeal. 13. Heard the arguments of learned counsel for the plaintiffs and learned counsel for the defendants. 14. Learned counsel for the plaintiffs submits that the Land Tribunal granted the occupancy right in favour of Mudara for and on behalf of the family and not in individual capacity. He submits that the First Appellate Court has committed error in recording the finding that the Land Tribunal granted the occupancy right in favour of Mudara in his individual capacity. He further submits that trial Court has considered the forms filed by the applicant, and also placed reliance on the judgment passed by this Court reported in the case of Narayana And Others vs. A. - 12 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 Sadashiva And Others, reported in ILR 2000 KAR 487. He submits that the First Appellate Court has not correctly appreciated the entire evidence on record and committed an error in recording the finding that the suit schedule properties were granted in favour of Mudara in his individual capacity, thereby dismissing the suit. Hence on these grounds, he submits that the judgment and decree passed by the First Appellate Court in R.A. No.89/2009 is arbitrary and erroneous. Accordingly, prays to allow the appeal, and set aside the judgment and decree passed in RA No.89/2009. 15. Per contra, the learned counsel for the defendants submits that Mudara has filed Form No.7 in his individual capacity and not for enuring the entire family. Hence, the suit schedule properties granted in favour of Mudara, is his self-acquired property, and the plaintiffs - 13 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 have no right to claim a share in the suit ‘A’ schedule properties. 16. This Court, vide order dated 12.09.2014, admitted the appeal to consider the following substantial question of law: “Whether the appellants herein are entitled to their share in the suit properties in view of the provisions of Section 6 of the Hindu Succession (Amendment) Act, 2005?” 17. The plaintiff, to substantiate their case, plaintiff No.1 was examined as PW1. It is stated that the occupancy right was granted by the Land Tribunal in the name of Mudara, as he was the only sole male member in the family, and the suit schedule properties are the ancestral properties. She deposed that the suit schedule properties are the ancestral properties and, the plaintiffs and defendants are members of a Hindu undivided family, and no partition has - 14 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 been effected between the plaintiffs and defendants. 18. The plaintiffs demanded a partition, however the defendants refused to effect the partition. 19. The plaintiffs to prove that the suit ‘A’ schedule properties are the ancestral properties and they are granted to Mudara, for and behalf of the joint family, produced six documents at Ex.P1 to P6. • Ex.P-1 are the RTC extracts; in 11 numbers • Ex.P-2 is a certified copy of the order passed by the Land Tribunal dated 30.06.1979, which discloses that the Land Tribunal has granted the occupancy rights in favour of Mudara; - 15 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 • Ex.P-3 is the certified copy of form No.7 which discloses that Mudara as a male member of the family has filed Form No.7. • Ex.P-4 is the certified copy of the order passed by the Land Tribunal dated 30.06.1979. • Ex.P-5 is the certified copy of the sketch; • Ex.P-6 is a certified copy of form No.10; 20. In rebuttal, defendant No.5 was examined as DW-1, and defendant No.1 was examined as DW-2, who reiterated the averments made in the written statement in the examination-in- chief. To prove their case, they have also produced six documents, namely, Ex.D-1 to Ex.D-6, to demonstrate that the Land Tribunal has granted occupancy rights in favour of Mudara in his individual capacity. - 16 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 21. From the perusal of the entire records produced by the parties, particularly i.e., Ex.P-3, which is form No.7 filed by Mudara, wherein it is clearly stated that he has been cultivating the land as a tenant for a period of 100 years. The recital in form No.7 itself clearly discloses that their ancestors were in possession of the suit schedule properties and after their death, Mudara, being the sole male member of the family, has filed Form No.7, for and on behalf of the family. 22. The Land Tribunal granted occupancy rights in favour of Mudara, for and on behalf of the family. The suit ‘A’ schedule properties are the ancestral properties of both the plaintiffs, and the defendants and no partition has been effected between them. 23. Further, once the Tribunal grants the occupancy rights, the lease-hold rights would get converted - 17 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 into free hold rights without affecting the rights of the other members of the joint family of which, the person to whom the occupancy rights are granted, is a member and it is always open to the other members to claim their share in a suit for partition and separate possession before the Civil Court. The Land Tribunal lacked jurisdiction to effect a partition. It is only the Civil Court that can entertain a claim for partition and separate possession regarding the granted land. 24. Mudara is the son of Angara. Admittedly, no partition is effected between Angara and Mudara. The plaintiffs, being the legal representatives of Angara, are entitled to a share in the suit ‘A’ schedule properties. 25. The Trial Court, considering the relationship between the parties, has held that the suit schedule properties were granted in favour of - 18 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 Mudara. As the suit ‘A’ schedule properties are the ancestral properties, the plaintiffs are entitled to a share. 26. The First Appellate Court, has proceeded to pass the impugned judgment only on the ground that the Land Tribunal has granted the occupancy rights in favour of Mudara in his individual capacity without considering that the ancestors of Mudara were in possession of the suit schedule properties for 100 years. 27. Plaintiff No., being the daughter of Angara, is entitled to a share, in view of Section 6 of the Hindu Succession (Amendment) Act, 2005, and also in view of the proposition laid down by the Hon’ble Supreme Court in the case of Vineeta Sharama vs. Rakesh Sharma reported in – AIR 2020 SC 3717. - 19 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 28. In this view of the matter, I am of the considered view that the First Appellate Court has committed an error in passing the impugned judgment. 29. In view of the above discussion, I answer the substantial question of law in the affirmative, and accordingly, I proceed to pass the following order: ORDER (i) The Regular Second Appeal is allowed. (ii) The judgment and decree dated 19.03.2013 passed in R.A. No.89/2009 by the II Addl. District Judge, Dakshina Kannada, Mangalore is set aside; (iii) The judgment and decree dated 28.07.2009 passed in O.S. No.69/2007 by the Civil Judge (Sr.Dn.) and JMFC, Bantwal, Dakshina Kannada, Mangalore is restored. - 20 - HC-KAR NC: 2025:KHC:27393 RSA No. 1203 of 2013 (iv) No order as to the costs. (v) In view of the disposal of the appeal, pending interlocutory applications, stand disposed of. Sd/- (ASHOK S.KINAGI) JUDGE AKV,RK CT:KHV List No.: 1 Sl No.: 41