- 1 - HC-KAR NC: 2025:KHC:35280 RSA NO.1764 OF 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S. INDIRESH REGULAR SECOND APPEAL NO.1764 OF 2015 (PAR) BETWEEN: SRI. GOVINDAPPA S/O BYRAPPA, AGED ABOUT 59 YEARS, R/AT KRISHNE GOWDA BUILDING, OPP: GOVERNMENT HIGH SCHOOL, CHANNASANDRA POST, HOSKOTE TALUK, BENGALURU RURAL DISTRICT - 562 114. …APPELLANT (BY SRI. PRASANNA KUMAR R.S., ADVOCATE) AND: 1. SMT. SHARADAMMA D/O BYRAPPA, AGED ABOUT 49 YEARS. PRESENTLY R/AT: BEERAMANAHALLI VILLAGE, KASABA HOBLI, ANEKAL TALUK - 562 106. PREVIOUSLY R/AT: BEERAMANAHALLI VILLAGE, KASABA HOBLI, KOLAR TALUK KOLAR DISTRICT. 2. SRI. ERAPPA S/O NARAYANAPPA, AGED ABOUT 84 YEARS, R/AT YESHVANTHAPURA VILLAGE, Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:35280 RSA NO.1764 OF 2015 NELAVAGILU POST, NANDAGUDI HOBLI, HOSKOTE TALUK, BENGALURU RURAL DISTRICT - 562 114. 3. SRI. KRISHNAPPA S/O EERAPPA, AGED ABOUT 56 YEARS, R/AT YESHVANTHAPURA VILLAGE, NELAVAGILU POST, NANDAGUDI HOBLI, HOSKOTE TALUK, BANGALURU RURAL DISTRICT - 562 114. 4. SMT. SUSHEELAMMA D/O EERAPPA, W/O KODANDAPPA, AGED ABOUT 53 YEARS, R/AT KITHIGANURU VILLAGE, VIRGONAGAR POST, BIDARAHALLI HOBLI, HOSKOTE TALUK, BENGALURU RURAL DISTRICT - 562 114. …RESPONDENTS (BY SRI. S. VISHWANATH SHETTY, ADVOCATE FOR R1 AND R3; SRI. B.C. SHIVANNE GOWDA, ADVOCATE FOR R4 RESPONDNET NO.2 - SERVED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 READ WITH ORDER XLII RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND DECREE DATED 01ST AUGUST, 2015 PASSED IN REGULAR APPEAL NO.5007 OF 2013 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, SIT AT ANEKAL, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 28TH JULY, 2010 PASSED IN ORIGINAL SUIT NO.102 OF 2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., ANEKAL. THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH - 3 - HC-KAR NC: 2025:KHC:35280 RSA NO.1764 OF 2015 ORAL JUDGMENT This appeal is preferred by the defendant No.2 challenging the judgment and decree dated 01st August, 2015, passed in Regular Appeal No.5007 of 2013 on the file of III Additional District and Sessions Judge, Bengaluru Rural District, Sit at Anekal (for short, hereinafter referred to as 'First Appellate Court'), allowing the appeal and setting aside the judgment and decree dated 28th July, 2010 passed in Original Suit No.102 of 2009 on the file of the Senior Civil Judge and JMFC., Anekal (for short, hereinafter referred to as 'Trial Court'), wherein the suit of the plaintiff came to be dismissed. 2. For the sake of convenience, the parties in this appeal are referred to as per their ranking before the Trial Court. 3. The relevant facts for adjudication of this appeal are that the plaintiff and defendants are the members of the Hindu Joint Family. It is stated in the plaint that, one late Chowdappa, who is the grandfather of the plaintiff and defendants 2 to 4, had ancestral and self acquired properties. The said late Chowdappa had two daughters namely, Muniyamma and - 4 - HC-KAR NC: 2025:KHC:35280 RSA NO.1764 OF 2015 Channamma. The said Muniyamma had four children namely, Govindappa (defendant No.2), Krishnappa (defendant No.3), Smt. Susheelamma (defendant No.4) and Smt. Sharadhamma (plaintiff). Defendant No.1 is the father of the plaintiff and defendants 2 to 4. It is further stated in the plaint that the defendant No.2, illegally entered his name in the revenue records in respect of the suit schedule properties, wherein the plaintiff is also having right being a coparcener of the joint family and as such, plaintiff filed the instant suit before the Trial Court, seeking relief of partition and separate possession in respect of the suit schedule properties. 4. After service of notice, defendants 2 and 3 entered appearance and contested the suit. Defendants 1 and 4 remained absent and as such, placed ex-parte. 5. It is the specific contention of the defendant No.2 that the plaintiff has not included the entire joint family properties. It is further contended by the defendant No.2 that, his grandfather namely, Chowdappa died on 16th January, 1989, leaving behind the registered Will dated 25th November, 1988 in favour of the defendant No.2 and as such, the - 5 - HC-KAR NC: 2025:KHC:35280 RSA NO.1764 OF 2015 defendant No.2 had acquired certain properties through the registered Will dated 25th November, 1988 in respect of the self acquired properties of late Chowdappa. The defendant No.2 also contended in the written statement that, late Chowdappa, grandfather of the defendant No.2 executed Will bequeathing some of the self acquired properties in favour of Channamma and her children. Accordingly, he sought for dismissal of the suit. 6. The defendant No.3 filed separate written statement and contended that, his father celebrated the marriage of the plaintiff and the entire marriage expenses were incurred through the joint family property. The defendant No.3 also contended that the defendant No.2 is separated from the joint family for more than four decades. Accordingly, he sought for dismissal of the suit. 7. The Trial Court, based on the pleadings on record, formulated issues for its consideration. 8. In order to establish their case, plaintiff herself was examined as PW1 and marked 12 documents as Exhibits P1 to P12. On the other hand, the defendants neither examined any - 6 - HC-KAR NC: 2025:KHC:35280 RSA NO.1764 OF 2015 witness nor produced documentary evidence in support of their case. 9. The Trial Court, after considering the material on record, by its judgment and decree dated 28th July, 2010, dismissed the suit of the plaintiff. Being aggrieved by the same, plaintiff preferred Regular Appeal No.5007 of 2013 before the First Appellate Court and the said appeal was contested by the defendants 2 and 3. The First Appellate Court, after re-appreciating the material on record, by its judgment and decree dated 01st August, 2015, allowed the appeal and set-aside the judgment and decree dated 28th July, 2010 passed by the Trial Court in Original Suit No.102 of 2009. Hence, the defendant No.2 filed the present appeal. 10. This Court, by order dated 15th December, 2015, admitted the appeal to consider the following substantial question of law: "Whether the First Appellate Court has committed any substantial legal error in decreeing the suit of the plaintiff and allotting 1/5th share in the suit schedule property, in the absence of all the respective shares and all the properties belonging to the joint family?" - 7 - HC-KAR NC: 2025:KHC:35280 RSA NO.1764 OF 2015 11. Heard Sri. Prasanna Kumar R.S., learned counsel appearing for the appellant; Sri. S. Vishwanath Shetty, learned counsel appearing for respondents 1 and 3 and Sri. B.C. Shivanne Gowda, learned counsel appearing for the respondent No.4. 12. Sri. Prasanna Kumar R.S., learned counsel appearing for the appellant contended that the Trial Court, rightly dismissed the suit of the plaintiff having arrived at a conclusion that the plaintiff has not produced relevant documents with regard to acquisition of the properties by her grandfather Chowdappa, however, the First Appellate Court, committed an error in decreeing the suit of the plaintiff, without there being all the properties of the Chowdappa were included as schedule properties in the suit. It is also argued by learned counsel appearing for the appellant that the partial partition made by the First Appellate Court requires interference, since the same is contrary to law. In this regard, learned counsel appearing for the appellant places reliance on the judgment of Hon'ble Supreme Court in the case of R. MAHALAKSHMI vs. A.V. - 8 - HC-KAR NC: 2025:KHC:35280 RSA NO.1764 OF 2015 ANANTHARAMAN AND OTHERS reported in (2009)9 SCC 52. 13. Per contra, Sri. B.C. Shivanne Gowda, learned counsel appearing for the respondent No.4 sought to substantiate the judgment of the Trial Court. 14. Learned counsel appearing for respondents 1 and 3 remained absent and was also absent on the previous date of hearing. 15. In the light of the submission made by learned counsel appearing for the parties, the plaintiff has filed suit seeking relief of partition and separate possession in respect of the suit schedule properties. The plaintiff and defendants 2 to 4 are the children of Muniyamma and Erappa (defendant No.1). Muniyamma acquired the suit schedule properties through her father late Chowdappa. The said Late Chowdappa died on 16th January, 1989. It is also forthcoming from the records that, late Chowdappa died leaving behind the registered Will dated 25th November, 1988, bequeathing the self acquired properties belonging to him in favour of the defendant No.2 and also in - 9 - HC-KAR NC: 2025:KHC:35280 RSA NO.1764 OF 2015 favour of the children of his second daughter namely, Channamma. 16. Perusal of the issues framed by the Trial Court would indicate that the plaintiff has not included the entire joint family properties of the plaintiff and defendants. The Trial Court, had arrived at a conclusion that the plaintiff has failed to produce even a single document to show that late Chowdappa had acquired the suit schedule property through his ancestors. Undisputably, no oral and documentary evidence was adduced by the defendants. Therefore, taking into consideration the divergent opinion given by both the Courts below, it is a fit case to remand the matter to Trial Court for fresh consideration to give clear finding on each of the issues framed, by providing fair opportunity to the parties in the light of the judgment of the Hon'ble Supreme Court in the Case of R. MAHALAKSHMI (supra). Therefore, the substantial question of law framed by this Court favours the appellant to remand the matter to the Trial Court. Accordingly, I pass the following: O R D E R 1) Regular Second Appeal allowed; - 10 - HC-KAR NC: 2025:KHC:35280 RSA NO.1764 OF 2015 2) Judgment and decree dated 01st August, 2015 passed in Regular Appeal No.5007 of 2013 on the file of the III Additional District and Sessions Judge, Bengaluru Rural District, Sit at Anekal and judgment and decree dated 28th July, 2010 passed in Original Suit No.102 of 2009 on the file of the Senior Civil Judge and JMFC., Anekal are hereby set-aside; and matter is remitted back to the Trial Court for fresh consideration in the light of the observation above; 3) It is made clear that the Trial Court shall provide opportunity to both sides to adduce evidence, if any, and to dispose the suit in accordance with law; 4) Since, the parties are represented through their learned counsels, in order to avoid further delay in the matter, parties are directed to appear before the Trial Court on 13th October, 2025. Sd/- (E.S.INDIRESH) JUDGE ARK List No.: 1 Sl No.: 53