- 1 - HC-KAR NC: 2025:KHC:40102 RFA No. 1007 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR FIRST APPEAL NO. 1007 OF 2014 (PAR) BETWEEN: 1. SRI S M MANJUNATH S/O LATE THIPPAIAH.S.M AGED ABOUT 60 YEARS, R/AT NO.15.M, SARASWATHINAGAR, BAGALKOT TOWN, BAGALKOT DISTRICT. 2. SMT.BHAGYA W/O N.V.SHIVAKUMAR AGED ABOUT 67 YEARS, R/O NO.2034/27, 9TH MAIN, SIDDAVEERAPPA BADAVANE, DAVANAGERE. 3. SMT.SUNANDA W/O CHANDRASHEKAR AGED ABOUT 65 YEARS, R/A NO.1031, 11TH MAIN, 2ND STAGE, RPC LAYOUT, VIJAYANAGAR, BANGALORE-560 040 4. SMT.MANJULA.P.M W/O LATE MAHADEVAIAH AGED ABOUT 63 YEARS, R/A NO.2153, 2ND FLOOR, 3RD B MAIN ROAD, VIJAYANAGAR BENGALURU -560 040 …APPELLANTS (BY SRI. M.V.HIREMATH, ADVOCATE) Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:40102 RFA No. 1007 of 2014 AND: 1. SRI.PRABHU S/O SRI. CHANDRA SHEKAR BUGGI, AGED ABOUT 42 YEARS, R/O NO.255/A, 1ST CROSS, GANGANAGAR, BEHIND URDU SCHOOL, BENGALURU- 560 032 2. DR.(SMT.) UMA D/O SRI. CHANDRA SHEKAR BUGGI, AGED ABOUT 44 YEARS, R/O NO.255/A, 1ST CROSS, GANGANAGAR, BEHIND URDU SCHOOL, BENGALURU-560 032 3. SMT.NIRMALA D/O SRI. CHANDRA SHEKAR BUGGI, AGED ABOUT 40 YEARS, R/O NO.255/A, 1ST CROSS, GANGANAGAR, BEHIND URDU SCHOOL, BANGALORE-560 032 4. SRI.CHETAN S/O LATE SRI. SWAMINATH, AGED ABOUT 28 YEARS, CHILDREN OF LATE SWAMINATH R/AT NO.553, 42ND CROSS, 8TH BLOCK, JAYANAGAR, BENGALURU- 560 082 5. SMT.SHEETHAL D/O.LATE SRI SWAMINATH AGED ABOUT 24 YEARS, CHILDREN OF LATE SWAMINATH R/AT NO.553, 42ND CROSS, 8TH BLOCK, JAYANAGAR, BENGALURU-560 082 - 3 - HC-KAR NC: 2025:KHC:40102 RFA No. 1007 of 2014 6. SRI.VISHWANATH S.M SINCE DECEASED BY HIS LR'S 6(A). SMT.S M SHOBHA, W/O LATE S.M.VISHWANATH, AGED ABOUT 55 YEARS, R/AT NO.111, VI CROSS, B BLOCK, GANDHINAGAR, SHIVAMOGGA- 577 201. 6(B). SMT. DHANUSHREE S V, D/O LATE SRI. S M VISHWANATH, AGED ABOUT 27 YEARS, R/O NO.676/S, 24TH CROSS, NEAR SANKRANTI CIRCLE, HEBBAL II STAGE, VIJAYANAGAR II STAGE, MYSURU- 570 017. …RESPONDENTS (R1 TO R4, R6(A) AND R6(B)- SD AND UNREPRESENTED; NOTICE TO R5 IS D/W, V/O DTD 31.03.2021) ------ THIS RFA IS FILED UNDER SECTION 96 R/W.ORDER XLI RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 19.3.2014 PASSED IN O.S.NO.8854/2011 ON THE FILE OF THE XVII ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH - 4 - HC-KAR NC: 2025:KHC:40102 RFA No. 1007 of 2014 ORAL JUDGMENT This appeal is preferred by the plaintiffs assailing the judgment and decree dated 19.03.2014 in O.S.No.8854/2011 on the file of XVII Additional City Civil and Sessions Judge, Bengaluru, decreeing the suit of the plaintiffs in part. 2. For the sake of convenience, parties are referred to as arrayed before the Trial Court. 3. It is the case of the plaintiffs that, plaintiffs, Smt.Vijayalakshmi (deceased), Swaminath (deceased) and defendant No.7 are the children of late Thippaiah and defendant No.1. It is stated in the plaint that, father of the plaintiffs-Thippaiah had acquired 'A' Schedule property as per the registered Sale Deed dated 19.02.1981 and the Karnataka Housing Board has allotted 'B' schedule property to Thippaiah on 02.11.1988. It is further stated in the plaint that Thippaiah died intestate leaving behind the plaintiffs and defendants as his legal representatives. It is further stated in the plaint that since the suit schedule properties are the self acquired properties of Thippaiah, the suit schedule properties constitute joint family properties of Thippaiah and as such, the plaintiff - 5 - HC-KAR NC: 2025:KHC:40102 RFA No. 1007 of 2014 and defendants are entitled for a share in the suit schedule properties. Plaintiff No.1 has issued legal notice to the defendants on 26.11.2002 and made a demand for allotment of share in the suit schedule properties and the defendants did not come forward for division of the properties and as such, plaintiff No.1 has filed O.S.No.1929/2003 against the defendants seeking relief of partition and separate possession, which came to be dismissed for non-prosecution on account of plaintiff No.1 not adducing any evidence on 14.11.2007. Hence, the plaintiffs have filed O.S.No.8854/2011 seeking the relief of partition and separate possession in respect of the suit schedule properties. 4. After service of notice, defendant No.5 entered appearance, however not contested the matter by filing written statement. Defendants No.2 to 4, 6 and 7 remained absent and they have been placed exparte. Defendant No.1 died during the pendency of the suit. The plaintiffs and defendants are the legal heirs of deceased Defendant No.1. 5. The Trial Court, based on pleadings on record, has formulated points for consideration, which reads as under : - 6 - HC-KAR NC: 2025:KHC:40102 RFA No. 1007 of 2014 1) Whether the plaintiffs prove that the suit schedule properties are the joint family properties of themselves and defendants ? 2) Whether the plaintiffs are entitled for their 1/7th share each in the suit schedule properties ? 3) What Order or Decree ? 6. In order to establish their case, plaintiff No.1 was examined as PW.1 and produced 17 documents as Exhibits P.1 to P.17. No oral evidence was adduced nor documents were produced by the defendants. The Trial Court after considering the material on record, by its judgment and decree dated 19.03.2014 decreed the suit in part and the operative portion of the order passed by the Trial Court reads as under : "The suit of the plaintiffs is partly decreed. The plaintiffs are entitled for 1/7th share each, defendants 2 to 4 are together entitled for 1/7th share, defendants 5 and 6 are together entitled for 1/7th share and defendant no.7 is also entitled for 1/7th share in half share of 'A' schedule property and in the entire 'B' schedule property". - 7 - HC-KAR NC: 2025:KHC:40102 RFA No. 1007 of 2014 Feeling aggrieved by the same, the plaintiffs have preferred this appeal. 7. I have heard Sri M.V.Hiremath, learned counsel appearing for the appellants/plaintiffs. Respondents were served, remained absent. 8. Sri M.V.Hiremath, learned counsel appearing for the appellants/plaintiffs contended that the grievance of the appellants is with regard to the division of properties by the Trial Court in respect of schedule 'A' property wherein the Trial Court has committed an error in granting 1/7th share each in half share of 'A' schedule property and therefore, the judgment and decree passed by the Trial Court requires interference by this Court. 9. In the light of the submission made by the learned counsel for the appellants, points that arise for consideration before this Court are as under : 1) Whether the finding recorded by the Trial Court on issue nos.1 and 2 requires modification in respect of the share in 'A' schedule property ? - 8 - HC-KAR NC: 2025:KHC:40102 RFA No. 1007 of 2014 2) Whether the judgment and decree passed by the Trial Court requires interference by this Court ? 10. In order to answer the aforementioned questions, it is relevant to look into the facts of the case. The plaintiffs, Smt.Vijayalakshmi, Swaminath and defendant No.7 are the children of Thippaiah and defendant No.1. It is not in dispute that Thippaiah had acquired schedule 'A' property as per the registered Sale Deed dated 19.02.1981 (Ex.P.2). Death certificate of Thippaiah is produced as Ex.P.5. Ex.P.15 is the death certificate of Jayabhagyamma (defendant No.1). The father of the plaintiffs-Thippaiah was allotted with a house by the Karnataka Housing Board on 02.11.1988 (Ex.P.3). In that view of the matter, as the said Thippaiah died intestate leaving behind his children as the legal representatives to succeed to the estate, the finding recorded by the Trial Court requires interference in respect of 'A' schedule property in view of the judgment of the Hon'ble Supreme Court in the case of Vineetha Sharma vs. Rakesh Sharma & Ors. reported in AIR 2020 SC 3717. - 9 - HC-KAR NC: 2025:KHC:40102 RFA No. 1007 of 2014 11. It is also to be noted that, since schedule 'A' property has been acquired by Thippaiah and died intestate, the Gift Deed said to have been executed by defendant No.1 dated 09.05.2005 in favor of Chethan (defendant No.5 - son of late Smt.Vijayalakshmi D/o.late Thippaiah and defendant No.1) as per Ex.P.17 is contrary to the judgment of the Hon'ble Supreme Court referred to above. Hence, I am of the view that, the Trial Court has committed an error in granting half share in the schedule 'A' property to the plaintiffs together with 1/7th share each. Therefore, the point for consideration referred to above is answered in favour of the plaintiffs, as the plaintiffs being the co-parcerners of the joint family consisting of Thippaiah and defendant No.1 and as such, they are entitled for 1/7th share each in 'A' schedule property also. Hence, the finding recorded by the Trial Court in respect of granting half share of 'A' schedule property to the plaintiffs to an extent of 1/7th share each is incorrect and therefore, the points for consideration referred to above is answered in favour of the plaintiffs/appellants. 12. In the result, I pass the following : - 10 - HC-KAR NC: 2025:KHC:40102 RFA No. 1007 of 2014 ORDER i) Appeal is allowed; ii) The judgment and decree dated 19.03.2014 in O.S.No.8854/2011 on the file of XVII Additional City Civil and Sessions Judge, Bengaluru, in respect of granting half of the 1/7th share to the plaintiffs and defendants No.2 to 4, 5 and 6 and 7 in, 'A' schedule property, is hereby set aside; iii) The plaintiffs and defendant No.7 are entitled for 1/7th share each in suit schedule 'A' and 'B' properties; defendants no.2 to 4 are together entitled for 1/7th share in suit schedule 'A' and 'B' properties; defendants no.5 and 6 are together entitled for 1/7th share in suit schedule 'A' and 'B' properties; iv) The suit of the plaintiffs is hereby decreed holding that, plaintiffs are entitled for 1/7th share each in the suit schedule properties. SD/- (E.S.INDIRESH) JUDGE rs/List No.: 1 Sl No.: 46