- 1 - HC-KAR NC: 2025:KHC:31578 RSA No. 1044 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 1044 OF 2020 (PAR) BETWEEN: G.K.NARASIMHAIAH S/O LATE KEMPARAMAIAH, AGED 84 YEARS, R/O GOVINDANAYAKANA PALYA, HIREDODDAVADI POST, URDIGERE HOBLI, TUMAKURU TALUK AND DISTRICT-572140 …APPELLANT (BY SRI. M B CHANDRACHOODA., ADVOCATE) AND: 1. SRI.G.K.RAMU S/O LATE KEMPARAMAIAH, AGED 70 YEARS, R/AT NO.1062 1ST STAGE, CHANDRA LAYOUT, NEAR SIDDAGANGA SCHOOL, BENGALURU-560072 Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:31578 RSA No. 1044 of 2020 2. SRI.T.S. KODANDA RAMAIAH S/O T.K.SHIVALINGAIAH, AGED 43 YEARS, R/O THANGANAHALLI VILLAGE, IRAKASANDRA COLONY POST, KOLALA HOBLI, KORATAGERE TALUK TUMAKURU DISTRICT-572129 …RESPONDENTS (BY SRI. K G SUDHAKAR, ADVOCATE FOR R1; SRI. R JAYAPRAKASH., ADVOCATE FOR R2) THIS RSA FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 09.01.2020 PASSED IN RA.No.196/2016 ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE, TUMAKURU, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 19.07.2016 PASSED IN O.S.No.85/2009 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, TUMAKURU, CROSS APPEAL NOT CHALLENGED. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:31578 RSA No. 1044 of 2020 CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri. M.B. Chandrachooda, learned counsel for the appellant. None appears for the respondents. 2. Defendant No.2 is the appellant challenging the decreeing of the suit for partition and separate possession in O.S.No.85/2009 confirmed in R.A.No.196/2016 connected with R.A.No.199/2016. 3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under: 3.1. Plaintiff - Sri.G.K.Ramu who is respondent No.1 in the present appeal, filed a suit in O.S.No.85/2009 for partition and separate possession in respect of the landed properties (hereinafter referred to as suit properties). 3.2. Plaintiff contended that himself and defendant Nos.1 and 2 are the sons of Kemparamaiah. They also had two sisters namely Venkataramakka and Gangamma. - 4 - HC-KAR NC: 2025:KHC:31578 RSA No. 1044 of 2020 Sisters of the plaintiff are no more and defendant No.3 is the grandson of Venkataramakka. 3.3. It is contended that suit properties are joint family ancestral properties and plaintiff and defendant No.1 are educated in the family and were in service. After retirement from the service as an engineer, plaintiff approached the defendants for partition of the properties which was denied whereby suit came to be filed. 4. Pursuant to the suit summons, all the defendants appeared before the Court below and defendant Nos.1 and 3 filed written statement admitting that suit item Nos.1 to 7 and 10 and 11 are the joint family properties were as item Nos.8 and 9 are the self acquired properties of defendant No.1. 5. It is also contended by defendant No.1 that he purchased item Nos.8 and 9 of the suit properties by his self earnings and with ulterior motive, plaintiff included those items also as joint family properties. - 5 - HC-KAR NC: 2025:KHC:31578 RSA No. 1044 of 2020 6. Further, defendant No.1 admits that plaintiff and defendant No.1 were educated whereas defendant No.2 was looking after the family properties by staying in the village. 7. It is also admitted in the written statement that defendant No.1 and plaintiff had assured their father that they will not seek share in the suit properties and for that, defendant No.2 had improved the ancestral properties with his hard labour. 8. Defendant No.2 filed a separate written statement denying entire averments made in the plaint. Further, defendant No.2 contended that suit item Nos.1 to 7 and 10 and 11 are the joint family properties and as per the directions of their father – Kemparamaiah, plaintiff and defendant No.1 were directed not to claim any share in the suit properties. 9. In other words, defendant No.2 maintained that plaintiff and defendant No.1 relinquished orally their share - 6 - HC-KAR NC: 2025:KHC:31578 RSA No. 1044 of 2020 in the suit properties as per the directions of Kemparamaiah. 10. Based on the rival contentions, learned Trial Judge raised necessary issues and after due contest, suit came to be decreed. 11. Operative portion of the judgment reads as under: “Suit of the plaintiff is partly decreed for partition and separate possession of his 1/3rd share in suit items No.1 to 9, 12 and 13. However the suit in respect of items No.10 and 11 are hereby dismissed. The parties are directed to bear their own cost. Office is directed to draw preliminary decree accordingly.” 12. Being aggrieved by the same, plaintiff filed an appeal before the First Appellate Court in RA No.196/2016 to the extent of denying the share in item Nos.10 and 11 whereas defendant No.3 who is the grandson of Venkataramakka filed separate appeal before the First Appellate Court in RA No.199/2016. - 7 - HC-KAR NC: 2025:KHC:31578 RSA No. 1044 of 2020 13. Pertinently, defendant No.1 was a party in both the appeals. He did not choose to file any separate appeal nor cross-objections before the First Appellate Court against the decree of the learned Trial Judge. But defendant No.2 did not file separate appeal but filed cross- objection. 14. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties and raised necessary points and partly allowed the appeals in RA No.196/2016 and 199/2016. Cross-objection filed by respondent No.2 was rejected. Decree of the Trial Court was modified by the First Appellate Court as under: “Both the appeals in R.A. No. 196/2016 and R.A. No. 199 of 2016 are partly allowed. The Cross Objection in R.A. No. 196/2016, filed by Respondent No. 2 is hereby rejected. The impugned Judgment And Decree dated 19/07/2016 passed by learned Principal Senior Civil Judge, Tumakuru, in O.S.No. 85/2009 is modified. The suit in O.S. No. 85/2009 is partly decreed by granting the shares as follows in the Suit Schedule Properties; - 8 - HC-KAR NC: 2025:KHC:31578 RSA No. 1044 of 2020 i) In Suit Item No. 1 to 7 : 9/20th share each to Plaintiff and Defendant No. 2 and 1/20th share each to the branch of Venkataramakka and Gangamma. ii) In Suit Item No. 12 and 13 : Half share each to Plaintiff and Defendant No. 2. The Parties above-named are entitled to partition by metes and bounds in respect of their above declared shares. The suit is dismissed in respect of Suit Item No. 8 to 11. IA No. 2 under Order 41 Rule 27 CPC and IA No. 3 under Order 41 Rule 25 CPC, both filed by Respondent No. 2 in R.A. No. 196/2016 are hereby rejected. IA No. 4 under Order I Rule 10 of CPC, filed by Appellant in R.A. No. 196/2016 is disposed off by holding that, since the shares of branch of Venkataramakka and Gangamma are declared by this Judgment, their LRs who are sought to be impleaded under present application, may be directly impleaded in FDP proceedings. Considering the relationship between the Parties, they shall bear their own costs.” 15. Being aggrieved by the rejection of the cross- objection, defendant No.2 has preferred the present appeal on following grounds and has raised substantial questions of law as follows: GROUNDS The Courts below have failed to consider that, the suit schedule properties as per the assurance given by the defendant No.1 and the plaintiff during the life time of Kemparamaiah, the right, title and interest in respect of - 9 - HC-KAR NC: 2025:KHC:31578 RSA No. 1044 of 2020 the schedule properties are exclusively belongs to defendant No.2. The Appellate Court has failed to consider that, having regard to the finding recorded by the Trial Court the Item No.8 & 9 of the suit schedule properties are also joint family properties and the alienation made by the defendant No.1 in favour of defendant No.3 is not valid. Though, the defendant No.1 has set up the plea of self acquisition of Item No.8 & 9, he had not entered the witness box, did not substantiated the said contention raised in the written statement. The Courts below have failed to consider that, the suit schedule properties are the absolute properties of defendant No.2, the plaintiff and defendant No.1 have not contributed anything towards the joint family and hence, they have no right to claim any share in respect of the schedule properties. The approach of the Courts below in holding that the suit schedule properties are joint family and the plaintiff is entitled for 1/3rd share is erroneous. The Appellate Court having hold that, there is no partition in respect of the suit schedule properties, has no Jurisdiction to declare that the suit schedule Item No.8 & 9 are not the joint family properties and they are the exclusive properties of the defendant No. 1. The Appellate Court has committed an error in declaring the share to the daughters of Late Kemparamaiah who - 10 - HC-KAR NC: 2025:KHC:31578 RSA No. 1044 of 2020 were not alive as on the date of filing of the suit and there was no issue before the Trial Court, none of the parties have pleaded non joinder of necessary party and hence, in spite of it the Appellate Court has modified the Judgment and Decree and awarded the share in favour of the deceased daughters of Late Kemparamaiah. The approach of the Appellate Court in considering the issues raised by the parties and setting aside the Judgment and Decree modifying the share to the parties who were not parties before the Court is erroneous. The Courts below have not properly appreciated the oral and documentary evidence produced by the parties and the finding recorded is perverse. The appellant has not filed any other appeal against the Judgment and Decree dated 09.01.2020 passed in RA 199/2016 and no other appeal is pending. SUBSTANTIAL QUESTIONS OF LAW 1. Whether the Courts below were justified in holding that the suit schedule properties are the joint family properties without proving the nucleus of the joint family? 2. Whether the Appellate Court is justified in holding that item No.8 and 9 are not the joint family properties ignoring the fact there is no evidence - 11 - HC-KAR NC: 2025:KHC:31578 RSA No. 1044 of 2020 given by the defendant No.1 regarding self acquisition? 3. Whether the Appellate Court is justified in modifying the judgment and decree of the Trial Court, allotting the share to the non parties, i.e., daughters of Kemparamaiah though they were not alive, without impleading their legal heirs as parties to the appeal? 4. Whether the allotment of share to the parties declared by the Appellate Court is in accordance with law? 16. Learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that both the Courts have committed grave error in not appreciating the fact that plaintiff and defendant No.1 were educated and they had assured the father – Kemparamaiah that they will not claim any right, title or interest in respect of the suit properties and it is defendant No.2 who has improved the properties out of his hard labour. Therefore, there was a relinquishment by plaintiff and defendant No.1 in favour of defendant No.2 in respect of all the suit items of the properties which has not - 12 - HC-KAR NC: 2025:KHC:31578 RSA No. 1044 of 2020 been properly appreciated and decreeing the suit by the Trial Court and modified by the First Appellate Court has resulted in grave miscarriage of justice and sought for admitting the appeal for further consideration. 17. He also contended that First Appellate Court recorded a wrong finding in respect of suit item Nos.8 and 9 and defendant No.2 did not receive any contribution from the plaintiff or defendant No.1 for improving the suit properties. 18. It is also his contention that Trial Court committed a grave error in declaring the shares to the daughters of late Kemparamaiah who were not alive as on the date of filing the suit. 19. He also argued that there was no proper issue raised by the Trial Court and none of the parties have pleaded about non-joinder of necessary parties and thus, matter needs to be admitted for further consideration. - 13 - HC-KAR NC: 2025:KHC:31578 RSA No. 1044 of 2020 20. Learned counsel for the respondents are not present. 21. In the light of the arguments put forward on behalf of the appellant – defendant No.2, this Court perused the material on record meticulously. 22. On such perusal of the material on record, relationship among the parties to the suit is not in dispute. No doubt, in the plaint itself, it has been alleged that Kemparamaiah had two daughters namely Venakataramakka and Gangamma. However, there is also a specific averment that they were not alive as on the date of filing the suit. But, defendant No.3 is the grandson of Venkataramakka even according to the plaint averments. 23. Learned Trial Judge ignoring the principles of law enunciated by the Hon’ble Apex Court in the case of Vineeta Sharma v. Rakesh Sharma reported in (2020) 9 SCC 1 passed the judgment granting 1/3rd share only to the sons of Kemparamaiah. - 14 - HC-KAR NC: 2025:KHC:31578 RSA No. 1044 of 2020 24. Learned Judge in the First Appellate Court noting the fact that the daughters also had the share and merely on the ground that daughters were not alive as on the date of presentation of the plaint, their right, title and interest cannot be ignored and therefore, rightly modified the judgment and decree passed by the Trial Court. 25. Insofar as alleged relinquishment is concerned, it is crystal clear that relinquishment if any among the sharers could have been only by a registered document. Any amount of oral assertion by any of the parties would not be sufficient enough to hold that there was a relinquishment of right. 26. Only on the ground that plaintiff and defendant No.1 were educated and were in service and away from the village for their employment purpose, would not take away their right in the suit properties. 27. There is no evidence placed on record, to establish that Kemparamaiah had directed plaintiff and - 15 - HC-KAR NC: 2025:KHC:31578 RSA No. 1044 of 2020 defendant No.1 not to claim any right in the suit properties as defendant No.2 was managing the suit properties by staying in the village. As such, said plea cannot be countenanced in law. 28. At the most, defendant No.2 would be entitled to seek contribution from others sharers in terms of the money towards improvement of the suit properties in the Final Decree Proceedings by placing necessary evidence on record. 29. In the absence of any other material evidence placed on record and having regard to the relationship being admitted, decree passed by the Trial Court modified by the First Appellate Court is just and proper. 30. With regard to the self acquired properties is concerned, if the finding recorded by the First Appellate Court has affected defendant No.1, it is for him to challenge the same before this Court. Defendant No.2 cannot canvass said aspect in this appeal. - 16 - HC-KAR NC: 2025:KHC:31578 RSA No. 1044 of 2020 31. Under such circumstances, this Court is of the considered opinion that the substantial questions of law raised in the appeal memorandum referred to supra do not merit for further consideration. 32. Hence, the following: ORDER Appeal is meritless and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE SNC/KAV List No.: 1 Sl No.: 35