- 1 - HC-KAR NC: 2025:KHC:36373 RSA NO.1269 OF 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S. INDIRESH REGULAR SECOND APPEAL NO.1269 OF 2017 (PAR) BETWEEN: 1. SRI. KUMARA S/O SHIVANNA, AGED ABOUT 36 YEARS. 2. SRI. RAJA S/O SHIVANNA, AGED ABOUT 33 YEARS. 3. SRI. SHEKAR S/O SHIVANNA, AGED ABOUT 31 YEARS. ALL ARE RESIDING AT: BELAVADI VILLAGE, YELAWALA HOBLI, MYSURU TALUK - 570 018. …APPELLANTS (BY SRI. V. SRINIVAS, ADVOCATE FOR SRI. SUMANTH L. BHARADWAJ, ADVOCATE) AND: 1. SHIVANNA S/O LATE BORAIAH, SINCE DEAD, BY LEGAL REPRESENTATIVE. 1(a). SMT. MAYAMMA W/O LATE SHIVANNA, AGED ABOUT 56 YEARS, R/AT BELAVADI VILLAGE, YELAWALA HOBLI, MYSURU TALUK - 570 018. Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:36373 RSA NO.1269 OF 2017 2. SRI. A.V. ANANDARAM S/O LATE. A VASUDEVASETTY, AGED ABOUT 60 YEARS, R/AT NO.22/1, M.N. JOIS ROAD, SONAR STREET, CHAMARAJA MOHALLA, MYSURU - 570 024. …RESPONDENTS (BY SMT. PHILOMINA ROSS, ADVOCATE FOR R1(a); SRI. FAYAZ SAB B.G., ADVOCTE FOR R2) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 18TH APRIL, 2017 PASSED IN REGULAR APPEAL NO.38 OF 2012 ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 07TH DECEMBER, 2011 PASSED IN ORIGINAL SUIT NO.231 OF 2005 ON THE FILE OF THE PRRINCIPAL JUDGE, SMALL CAUSES AND SENIOR CIVIL JUDGE, MYSURU. THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH ORAL JUDGMENT This appeal is preferred by plaintiffs, challenging the judgment and decree dated 18th April, 2017 passed in Regular Appeal No.38 of 2012 on the file of the VII Additional District Judge, Mysuru (for short, hereinafter referred to as 'First Appellate Court'), dismissing the appeal and confirming the judgment and decree dated 07th December, 2011 passed in Original Suit No.231 of 2005 on the file of the - 3 - HC-KAR NC: 2025:KHC:36373 RSA NO.1269 OF 2017 Principal Judge, Small Causes and Senior Civil Judge, Mysuru (for short, hereinafter referred to as 'Trial Court'), wherein the suit of the plaintiffs 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. It is the case of the plaintiffs that the plaintiffs are the children of the defendant No.1 and the suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendant No.1. It is stated that the suit schedule properties belonged one Boraiah, grandfather of plaintiffs and same was allotted to the father of the plaintiffs i.e., defendant No.1 in a family partition executed on 04th May, 1973 (Exhibit P14). It is also stated that the defendant No.1 had executed the General Power of Attorney in favour of one Gundu Venkatesh Kumar H.K. and the item No.1 of suit schedule properties was sold in favour of the defendant No.2 as per the registered Sale deed dated 12th December, 1995 (Exhibit P15) through the General Power of Attorney. Hence, it is the case of the plaintiffs that the plaintiffs and defendant - 4 - HC-KAR NC: 2025:KHC:36373 RSA NO.1269 OF 2017 No.1 constitute joint family and as such, plaintiffs filed Original Suit No.231 of 2005 before the Trial Court, seeking relief of partition and separate possession in respect of the suit schedule properties. 4. Upon service of summons, defendants entered appearance, however, the defendant No.1 has not contested the matter by filing the written statement. 5. The defendant No.2 filed detailed written statement denying the averments made in the plaint. It is the specific case of the defendant No.2 that, he had purchased the item No.1 of the suit schedule properties as per the registered Sale Deed dated 12th December, 1995 and being a bona fide purchaser of the land, he sought for dismissal of the suit. 6. The Trial Court, based on pleadings on record, formulated the issues for its consideration. 7. In order to establish their case, plaintiffs examined two witness and PW1 and PW2 and marked 15 documents as Exhibits P1 to P15. On the other hand, defendant No.2 himself had examined as DW1 and got marked 124 documents as Exhibits D1 to D124. - 5 - HC-KAR NC: 2025:KHC:36373 RSA NO.1269 OF 2017 8. The Trial Court, after considering the material on record, by its judgment and decree dated 07th December, 2011, dismissed the suit. Being aggrieved by the same, plaintiffs preferred Regular Appeal No.38 of 2012 before the First Appellate Court and the said appeal was contested by the defendant No.2. It is also forthcoming from the records that the defendant No.1-Shivanna died during the pendency of the proceedings and accordingly, wife of the deceased Shivanna was brought on record. The First Appellate Court, after re- appreciating the material on record, by its judgment and decree dated 18th April, 2017, dismissed the appeal and consequently, confirmed the judgment and decree passed by the Trial Court. Hence, plaintiffs preferred this appeal 9. This Court, by order dated 03rd February, 2020 admitted the appeal to consider the following substantial question of law: "Whether the Trial Court and the Appellate Court are justified in holding that the suit property became the separate property of the father of the plaintiffs, merely because it was allotted to him in a partition and ignoring the fact that on the birth of the plaintiffs, the said property became the coparcenary property? - 6 - HC-KAR NC: 2025:KHC:36373 RSA NO.1269 OF 2017 10. Heard, Sri. V. Srinivas, learned counsel on behalf of Sri. Sumanth L. Bharadwaj, appearing for appellants; Smt. Philomina Ross, learned counsel appearing for the respondent No.1(a) and Sri. Fayaz Sab B.G., learned counsel appearing for the respondent No.2. 11. Sri. V. Srinivas., learned counsel appearing for appellants contended that, both he Courts below misconstrued the fact that the suit schedule properties are the self acquired properties of the defendant No.1 by ignoring the fact that the defendant No.1 acquired the suit schedule properties as per the partition deed dated 04th May, 1973 (Exhibit P14) executed between the defendant No.1 and his brothers and therefore, the judgment and decree passed by both the Courts below requires to be set-aside. In this regard, learned counsel appearing for appellants placed reliance on the judgment of Hon'ble Supreme Court in the case of ROHIT CHAUHAN vs. SURINDER SINGH AND OTHERS reported in AIR 2013 SC 3525 and argued that, after the devolution of the property in a partition deed, the property shall remain as the ancestral property in respect of the children of the party to the partition and therefore, he sought for interference of this Court. - 7 - HC-KAR NC: 2025:KHC:36373 RSA NO.1269 OF 2017 12. Learned counsel appearing for appellants refers to finding recorded by both the Courts below and contended that the relevant provision is Section 6 of the Hindu Succession Act, 1956 and not Section 8 of the said Act, and in this regard, both Courts below have misconstrued the same. 13. Per contra, Smt. Philomina Ross, learned counsel appearing for the respondent No.1(a) submits that the judgment and decree passed by both the Courts below are contrary to records and the respondent No.1(a) is the wife of the defendant No.1 having interest over the property in question. Accordingly, she sought to remand the matter to the Trial Court for fresh consideration. 14. Sri. Fayaz Sab B.G., learned counsel appearing for the respondent No.2 submits that the suit schedule property is situate in Survey No.99 of Belavadi Village, Mysuru Taluk comprising 3 acre 32 guntas, out of which, the defendant No.1 had sold 1 acre of the land to the defendant No.2 for family necessity as per the registered Sale Deed dated 12th December, 1995 and therefore, as both the Courts below have held against - 8 - HC-KAR NC: 2025:KHC:36373 RSA NO.1269 OF 2017 the plaintiffs, no interference be called for in the concurrent findings. 15. In the light of the submission made by learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below and perused the records. It is not in dispute that the plaintiffs are the children of defendant No.1. The suit schedule properties belongs to Boraiah, father of the defendant No.1 and as per the partition deed dated 04th May, 1973 (Exhibit P14), the suit schedule properties were allotted to the share of the defendant No.1. Hence, it has to be concluded that the suit schedule properties are the ancestral property of the plaintiffs and defendant No.1. In this regard, the observation made by the Courts below is that the said property is the separate property of the defendant No.1, which cannot be accepted. In view of the judgment of the Hon'ble Supreme Court in the case ROHIT CHAUHAN (supra) the suit schedule property has to be held as ancestral property of plaintiffs and defendant No.1. In the backdrop of these aspects, on perusal of the registered Sale Deed dated 12th December, 1995 (Exhibit P15), wherein it is held that the suit schedule property has been sold by the defendant No.1 for - 9 - HC-KAR NC: 2025:KHC:36373 RSA NO.1269 OF 2017 family necessities. It is very pertinent to mention herein that as on the date of sale made by the defendant No.1 in favour of the defendant No.2, plaintiffs were minors and have not challenged the said registered Sale Deed immediately after attaining the majority. Be that as it may, the defendant No.1 has not contested the matter on merits and filed the written statement. The perusal of the cause title before the Courts below would indicate that the plaintiffs and the defendant No.1 were residing together and therefore, I am of the opinion that, it is a collusive suit between the plaintiffs and defendant No.1 against the defendant No.2. Apart from this, the total extent of land bearing Survey No.99 is to an extent of 3 acre 32 guntas and out of which 1 acre of land has been sold by the defendant No.1 in favour of the defendant No.2 for family necessity. The remaining extent of 2 acre 32 guntas was sold by the defendant No.1 and his wife along with the plaintiffs as per the registered Sale Deed dated 22nd July, 2005 (Exhibit D2) and therefore, this fact would makes it clear that the land in question has been sold for the family necessity. In that view of the matter, dismissal of the suit by the Trial Court is just and proper. Further, the First Appellate Court, after re-appreciating - 10 - HC-KAR NC: 2025:KHC:36373 RSA NO.1269 OF 2017 the material on record, confirmed the judgment and decree passed by the Trial Court, which requires to be confirmed in this appeal, since the land in question has been sold during the year-1995 and the suit is filed after ten years. Hence, the substantial question of law framed by this Court favours the defendant No.2. Accordingly, Regular Second Appeal is dismissed. SD/- (E.S. INDIRESH) JUDGE ARK List No.: 1 Sl No.: 58