- 1 - HC-KAR NC: 2025:KHC:37714 RSA No. 550 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 550 OF 2022 (PAR) BETWEEN: SRI.VASANTHA SHETTY S/O LATE SMT RATHI SHEDTHI AGED ABOUT 65 YEARS, R/AT KUNTINI HOUSE, AJIKAR POST KARKALA TALUK - 574 101 …APPELLANT (BY SRI. SANATHKUMAR SHETTY K, ADVOCATE) AND: 1. VISHALA SHETTY D/O RATHI SHEDHI AGED ABOUT 70 YEARS, 2. SUKANYA SHETTY D/OVISHALA SHETTY AGED ABOUT 47 YEARS 3. SUJATHA SHETTY D/O VISHALA SHETTY AGED ABOUT 44 YEARS, 4. SANDEESH SHETTY S/O VISHALA SHETTY AGED ABOUT 37 YEARS 5. SUPRIYA SHETTY D/O VISHALA SHETTY AGED ABOUT 34 YEARS, Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:37714 RSA No. 550 of 2022 6. SURAKSHA SHETTY S/O SUKANYA SHETTY AGED ABOUT 23 YEARS, 7. SUDHIN SHETTY S/O SUJATHA SHETTY AGED ABOUT 19 YEARS, THE RESPONDENT NO.1 TO 7 ARE RESIDING AT ARDHANAREESHWARA PRASAD MUNIYAL KARKALA TALUK - 574 101. 8. ASHWINI SHETTY D/O SMT RATHI SHEDTHI AGED ABOUT 58 YEARS 9. KANTHI SHETTY D/O ASHWINI SHETTY AGED ABOUT 40 YEARS, 10. SWEEKRITHI SHETTY D/OKANTHI SHETTY AGED ABOUT 15 YEARS, MINOR REPRESENTED BY HER GUARDIAN LITEM SMT KANTHI SHETTY 9TH RESPONDENT RESPONDENTS 8 TO 10 ARE RESIDING AT BONDU KUMERI 5 CENTS, AJIKAR POST KARKALA TALUK - 574 101. 11. VITTAL SHETTY S/O LATE RATTHI SHEDTHI AGED ABOUT 83 YEARS, R/AT RAVISUMA HOUSE KUNTINI, AJIKAR KARKALA TALUK - 574 101 - 3 - HC-KAR NC: 2025:KHC:37714 RSA No. 550 of 2022 12. SANJEEVA SHETTY S/O SMT RATHI SHEDTHI AGED ABOUT 78 YEARS, R/AT GUDDI MANE HOUSE B C ROAD BAIKADY UDUPI TALUK - 576 213 13. PREMA SHETTY D/O LATE RATHI SHEDTHI AGED ABOUT 74 YEARS, 14. DEVI PRASHANTH SHETTY S/O MRS PREM SHEDTHI AGED ABOUT 47 YEARS 15. PRAFULLA D/O PREMA SHEDTHI AGED ABOUT 45 YEARS 16. PRATHIMA D/O PREMA SHEDHTI AGED ABOUT 43 YEARS, 17. PRADEEP S/O PREMA SHEDTHI AGED ABOUT 41 YEARS 18. PRAMOD S/O PREMA SHEDTHI AGED ABOUT 35 YEARS, 19. PRAVEENA S/O PREMA SHEDTHI AGED ABOUT 34 YEARS, THE RESPONDENTS 13 TO 19 ARE RESIDING AT SRI KRISHNA HOTEL SAMBAJI NATAR C WARD NEA WESTERN EXPRESS HIGHWAY VIA PAREL - 4 - HC-KAR NC: 2025:KHC:37714 RSA No. 550 of 2022 EAST MUMBAI - 400 057 20. SANTHOSH S/O VISHALA SHETTY AGED ABOUT 42 YEARS 21. KIRAN SHETTY S/O ASHWINI SHETTY AGED ABOUT 38 YEARS RESPONDENTS 20 AND 21 RSIDING AT SHIVADEEP NEAR CORPORATION BANK SRI GANESH COMPLEX KARVE NAGAR, PUNE, MAHARSHTRA - 411 001. 22. SURESH SHETTY S/O LATE KORAGA SHETTY AGED ABOUT 66 YEARS R/AT SUBHAVI OPP JYOTHI HIGH SCHOOL AJIKAR POST KARKALA - 574 101 23. BHARATH SHETTY S/O LATE KORAGA SHETTY AGED ABOUT 64 YEARS, R/AT SUBHAVI OPP JYOTHI HIGH SCHOOL AJIKAR POST KARKALA -574 101 24. SHOBHA M SHETTY D/O LATE KORAGA SHETTY AGED ABOUT 62 YEARS R/AT DHANYA NEAR TELEPHONE EXCHANGE AJIKAR POST KARKALA -574 101 25. YASHODHA SHETTY D/O LATE KORAGA SHETTY AGED ABOUT 60 YEARS, R/AT SUBHAVI OPP JYOTHI HIGH SCHOOL AJIKAR POST - 5 - HC-KAR NC: 2025:KHC:37714 RSA No. 550 of 2022 KARKALA - 574 101 26. ARUNA SHETTY D/O LATE KORAGA SHETTY AGED ABOUT 58 YEARS, R/AT SUBHAVAI OPP JYOTHI HIGH SCHOOL AJIKAR POST KARKALA - 574 101 27. VIJAYA SHETTY S/O LATE KORAGA SHETTY AGED ABOUT 56 YEARS R/AT NITHYANANDA SAW MILL SALMARA, KARKALA - 574 101 …RESPONDENTS (BY SRI. CHANDRANATH ARIGA K.,ADVOCATE FOR C/R1 AND R8) THIS RSA IS FILED UNDER SECTION 100 R/W ORDER 42 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 14.01.2022 PASSED IN RA.No.21/2013 ON THE FILE OF PRINCIPAL DISTRICT JUDGE, UDUPI, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 19.02.2013 PASSED IN OS No.69/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ACJM, KARKALA. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 6 - HC-KAR NC: 2025:KHC:37714 RSA No. 550 of 2022 CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.Sanathkumar Shetty K., learned counsel for the appellants and Sri.Chandranath Ariga K., learned counsel for the respondents. 2. The present appeal is filed by the defendant No.4 against the plaintiffs and other defendants challenging the judgment passed in RA No.21/2013 wherein the appeal filed by defendant Nos.1 and 4 came to be dismissed and upheld the decree passed in O.S.No.69/2007. 3. Facts in brief which are utmost necessary for disposal of the appeal are as under: A suit came to be filed in O.S.No.69/2007 in respect of the following properties which are termed as ‘A’ Schedule immovable properties in the suit. “Immovable property situated in Marne Village of Karkala Taluk, compromised in: - 7 - HC-KAR NC: 2025:KHC:37714 RSA No. 550 of 2022 S.No. S.D.No. Kissam Extent A-C Assessment Rs.Ps. 68 1 Nanja 1-46 2-31 68 2 Nanja 1-51 5-64 68 3 Nanja 2-16 10-48 68 4 Punja 0-25 0-15 68 5 Bagaiath 0-19 0-32 68 6 Bagaiath 0-18 0-61 69 3 Nanja 0-09 0-34 243 1 Nanja 0-09 0-44 243 3 Nanja 1-24 1-96 339 1 Punja 4-64 1-40 339 3 Nanja 0-05 0-25 106 5 Thari 0-73 3-08 The above property with all other appurtenances thereto.” 4. Suit on due contest, came to be decreed in part. 5. Operative portion of the order of the Trial Court is culled out hereunder for ready reference: “Suit of the plaintiffs is decreed in part. Plaintiffs No.1, 8, defendants No.1 to 4 are each entitled for 7/144th share in plaint ‘A’ schedule immovable properties by metes and bounds with reference to good and bad soil. Plaintiffs No.2 to 7, 9, 10 and defendants No.5 to 12 each entitled for 1/24th share in plaint ‘A’ schedule immovable properties by metes and bounds with reference to good and bad soil. - 8 - HC-KAR NC: 2025:KHC:37714 RSA No. 550 of 2022 Defendants No.13 to 19 are together entitled for 1/24th share in plaint ‘A’ schedule immovable properties to which Koraga Shetty was entitled to, by metes and bounds with reference to good and bad soil. Additional Issue No.1 is reserved for decision in final decree proceedings. No order as to costs.” 6. Being aggrieved by the same, it is defendant Nos.1 and 4 who had filed the appeal before the First Appellate Court in RA No.21/2013. 7. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and reappreciated the material evidence on record and dismissed the appeal filed by the defendant Nos.1 and 4. 8. Being further aggrieved by the same, it is defendant No.4 who has filed the present appeal on following grounds and raising following substantial questions of law: - 9 - HC-KAR NC: 2025:KHC:37714 RSA No. 550 of 2022 GROUNDS  The impugned Judgments and Decrees of the Trial Court and the 1 Appellate Court are wrong and contrary to law.  The Trial Court and the I Appellate Court have not applied correct principles of law to the facts of the case.  Both the Courts have ignored material evidence on record and by placing reliance upon irrelevant and inadmissible materials have passed erroneous Decrees.  Both the Courts have totally adopted totally a wrong approach to the facts of the case.  The Trial Court as well as the I Appellate Court have failed to formulate proper issues or points for consideration that arise for their consideration. The findings recorded by both the Courts against the Appellant herein are wrong.  Both the Courts have erred in holding that the suit properties are Kutumba Properties. The findings recorded by the Courts below are not based on any acceptable evidence nor are they based on any acceptable principles of law. It is the fundamental - 10 - HC-KAR NC: 2025:KHC:37714 RSA No. 550 of 2022 principles of law that, there is no presumption under law that a Kutumba or family owns a property. If a person asserts that a particular property is a joint family property it is for that person to prove his case. In the instant case the Plaintiffs have not produced any acceptable materials to say that the properties were held by the Kutumba on tenancy right. The Courts below instead of examining the strength of the case projected by the Plaintiff have preferred to highlight the weakness in the case of the Defendants and have examined as to whether the Defendants have established that they had obtained the property in their individual capacity. The Order of the Tribunal has not decided that the tenancy is a family tenancy or an Under the said individual tenancy. circumstances, it is for the Civil Court to examine the matter and decide the nature of the tenancy independently. The records produced by the Defendants especially the documents evidencing the payment of Levy Receipts, Geni Paid Receipts clearly establishes that Vittal Shetty the 1st Defendant and Rathi Shedthi were the tenants. Fact that the names of other members are found reflected in Form No. 7 does not necessarily lead to drawing an interference that the properties were acquired by the ancestors of the declarants. The entire approach adopted by both the Courts in the - 11 - HC-KAR NC: 2025:KHC:37714 RSA No. 550 of 2022 matter of recording the findings against the Defendants on Issue No. 2 and 3 are wrong.  Both the Courts have erred in holding that, the Defendants have not been successful in proving the partition agreement dated: 08/10/1982. The Courts below erred in holding that the documents Ex.D-52 is not admissible in the evidence as it is not registered. The Ex.D-52 at least could have been relied for collateral purpose for showing the division in status.  The Courts below have erred in holding that the 4th Defendant has failed to establish the Will at Ex.D- 40 executed by his mother Rathi Shedthi in his favour. The Defendant No. 4 has proved the Will by examining the two attesting witnesses as D.W-3 and D.W-4. Both the witness have proved the due execution and attestation of the Will. The Courts below have by adopting totally a wrong approach have declined to accept the Will at Ex.D-40. A Will does not require mathematical proof. It is required to be proved like any other document except fulfilling the requirements of Section 68 of the Evidence Act and Section 63 of the Indian Succession Act. Mere discrepancy in the evidence of attesting witnesses who have been examined after a long lapse of time cannot take away the effect of - 12 - HC-KAR NC: 2025:KHC:37714 RSA No. 550 of 2022 the evidence on record. The finding therefore, suffers from grave error and it is required to be set aside.  The Courts below have erred in declaring the quantum of shares as declared under the impugned decree. The fixation of quantum of shares by the impugned decrees are not proper and in accordance with law. SUBSTANTIAL QUESTIONS OF LAW i. Whether, both the Courts have adopted a proper approach to the facts of the case while rendering a finding that the suit properties are the Kutumba properties of the parties? ii. Whether, the Court below are justified in declining to place any reliance on Ex.D-52 an agreement for partition? iii. Whether, the Courts below have adopted a proper approach to the facts while rendering that the Document No. 4 has not established, the execution of Ex.D-40 the will executed by Smt. Rathi Shedthi? - 13 - HC-KAR NC: 2025:KHC:37714 RSA No. 550 of 2022 iv. Whether, the quantum of share decided by the Courts below are proper and in accordance with law? 9. Learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that both the Courts have not properly considered the case of defendant No.4 and wrongly decreed the suit of the plaintiff in part resulting in miscarriage of justice and sought for admitting the appeal on the aforesaid substantial questions of law. 10. Per contra, learned counsel for contesting respondents/plaintiffs contended that pursuant to the judgment passed by the Trial Court confirmed by the First Appellate Court, Final Decree Proceedings were drawn and Commissioner came to be appointed. There were some discrepancy with regard to the Commissioner’s report and that discrepancy is sorted out by the parties by consent and as per the consent given by the parties, Final Decree - 14 - HC-KAR NC: 2025:KHC:37714 RSA No. 550 of 2022 is drawn. Therefore, nothing survives in the present appeal and as such, appeal needs to be dismissed. 11. In reply, learned counsel for the appellants would contend that there is no bar nor limitation in filing the present appeal inasmuch as if the preliminary decree is modified by this Court by entertaining the appeal of defendant No.4, the Final Decree Proceedings will have to be redone. 12. In that regard, learned counsel for the appellant places reliance of the judgment of the Hon’ble Apex Court in the case of Sita Parshad and Another v. Koshori Lal reported in AIR 1967 SC 1236. 13. Relevant paragraph of the judgment is paragraph No.7 and same is culled out hereunder for ready reference: “7. There can in our opinion be no doubt that if in appeal the preliminary decree is reversed, the final decree must fall to the ground for there is no preliminary decree thereafter in support of it. It is not necessary in such a case for the defendant to go - 15 - HC-KAR NC: 2025:KHC:37714 RSA No. 550 of 2022 to the court passing the final decree and ask it to set aside the final decree. Even if the defendant does not make an application to the court for setting aside the final decree within three years because the preliminary decree has been reversed, the decree-holder cannot get the right to execute the final decree which has no preliminary decree in support of it. If an execution petition is made on such a final decree even though more than three years after the decree in appeal has been reversed, the defendant has simply to ask the court where the execution petition is made to refuse to execute the decree on the ground that the preliminary decree in support of it has been set aside. It seems to us that in such a case it is the duty of the executing court to take note of the fact that the preliminary decree in support of the final decree has been reversed and it should refuse to execute the final decree even though the fact is brought to its notice more than three years after the decree in appeal reversing the preliminary decree. In such a case in our opinion no question of limitation arises.” 14. Having heard the parties in detail, this Court perused the material on record meticulously. 15. On such perusal of the material on record, it is crystal clear that defendant Nos.1 and 4 are aggrieved by the judgment of the Trial Court in decreeing the suit of the plaintiffs as referred to supra. - 16 - HC-KAR NC: 2025:KHC:37714 RSA No. 550 of 2022 16. Learned Judge in the First Appellate Court dismissed the appeal by considered judgment on merits. 17. Being further aggrieved by the same, it is defendant No.4 who has filed the present appeal. 18. When the appeal is pending, Final Decree Proceedings proceeded and in the Final Decree, a Court Commissioner came to be appointed to demarcate the shares of the parties as per the preliminary decree passed by the Trial Court. 19. There were some discrepancies with regard to the Commissioner’s report. The parties objected for the same and by the consent of the parties, those discrepancies were sorted out. Therefore, learned Judge has accepted the corrections with regard to the discrepancies and passed the final decree. 20. Further, the final decree is already executed as is contended by the respondent. - 17 - HC-KAR NC: 2025:KHC:37714 RSA No. 550 of 2022 21. It is pertinent to note that defendant No.4 was a party to such a consent of the Final Decree to be drawn after removing the discrepancies in the commissioner’s report. 22. Therefore, the argument put forth on behalf of the appellant that the lis is still pending and therefore, appeal needs to be entertained on merits cannot be countenanced in law. 23. Now adverting to the principles of law enunciated in Sita Parshad and Another supra, it is crystal clear that their Lordships in paragraph No.7 in the said case was dealing with the preliminary decree passed in a mortgage suit and not in a partition suit. 24. Nevertheless, the principles enunciated in the said judgment is to the effect that a final decree will always be subject to the modifications made to the preliminary decree. - 18 - HC-KAR NC: 2025:KHC:37714 RSA No. 550 of 2022 25. In the case on hand, there was a preliminary decree which was upheld by the First Appellate Court and based on which, when the Final Decree Proceedings was initiated, the commissioner has measured the property in the presence of the parties for demarcating the shares. But having regard to some discrepancies, parties have consented (including the present appellant) for removing those discrepancies. Therefore, it should not now lie in the mouth of defendant No.4 that it was not a consent Final Decree. 26. Taking note of the above factual aspects of the matter, this Court is of the considered opinion that the appellants have not made out any good grounds to admit the appeal on the aforesaid substantial questions of law for further consideration. 27. Accordingly, the following: - 19 - HC-KAR NC: 2025:KHC:37714 RSA No. 550 of 2022 ORDER Appeal is dismissed. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 43 CT: BHK