- 1 - HC-KAR NC: 2025:KHC:37747 RSA No. 308 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 308 OF 2013 (PAR-) BETWEEN: BYRAMMA W/O RANGANATHAPPA, AGED ABOUT 55 YEARS, AGRICULTURIST, KASAVANAHALLI VILLAGE, KASABA HOBLI, HIRIYUR TALUK-572143. …APPELLANT (BY SRI. K R RAMESH., ADVOCATE) AND: 1. UMADEVI W/O SIDDESH, AGED ABOUT 49 YEARS, AGRICULTURIST, KASAVANAHALLI VILLAGE, KASABA HOBLI, HIRIYUR TALUK-572143. 2. AJAY KUMAR S/O SIDDESH, AGED ABOUT 25 YEARS, AGRICULTURIST, KATRIKENAHALLI VILLAGE, HIRIYUR TALUK. DEAD BY LRS. Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:37747 RSA No. 308 of 2013 2a. SMT. H. NIRMALA W/O LATE AJAY KUMAR, AGED ABOUT 33 YEARS, 2b. MASTER LAVA S/O LATE AJAY KUMAR, AGED ABOUT 10 YEARS 2c. KUMARI KHUSHI, D/O LATE AJAY KUMAR, AGED ABOUT 8 YEARS 2d. KUMARI PREETHI, D/O LATE AJAY KUMAR, AGED ABOUT 6 YEARS SINCE THE RESPONDENT NO.2(b) TO (d) LR'S OF THE RESPONDENT NO.2 ARE MINORS, THEY ARE REPRESENTED BY THEIR MOTHER & N/G. LR'S OF RESPONDENT NO.2(a) ON SMT. NIRMALA. ALL ARE R/AT: C/O GONCHIGAR SIDDESH, KATHRIKENHALLI, HIRIYUR TALUK, CHITRADURGA DISTRICT-577598 3. 3a. K BASAVARAJA SINCE DEAD BY HIS LR'S SUSHEELAMMA W/O K BASAVARAJU AGED ABOUT 56 YEARS 3b. HANUMANTHE GOWDA S/O K BASAVARAJU, AGED ABOUT 36 YEARS, - 3 - HC-KAR NC: 2025:KHC:37747 RSA No. 308 of 2013 3c. RAGHAVENDRA S/O K BASAVARAJU, AGED ABOUT 32 YEARS, ALL ARE AGRICULTURISTS, R/AT KASAVANAHALLY VILLAGE , HIRIYUR TALUK-572143. 4. KAREGOWDA S/O LATE UGRAPPA, AGED ABOUT 34 YEARS, AGRICULTURIST 5. RANGASWAMY S/O LATE UGRAPPA, AGED ABOUT 32 YEARS, AGRICULTURIST DEFENDANT NO.4 & 5 ARE R/O KASAVANAHALLI VILLAGE, HIRIYUR TALUK-572143. …RESPONDENTS (BY SRI. B M SIDDAPPA, ADV. FOR R1,R2(a) TO R2(d), R4 & R5, R3 (a-c) R2(b) & R2(c) ARE MINORS, REPTD. BY R2(a),) [CAUSE TITLE AMENDED V/C/O DATED: 10.07.2025] THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD: 12.10.2012 PASSED IN R.A.NO.36/2011 ON THE FILE OF THE ADDL. DISTRICT JUDGE, FAST TRACK COURT, CHITRADURGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 7.3.2011 PASSED IN OS.NO.89/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE, HIRIYUR. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE - 4 - HC-KAR NC: 2025:KHC:37747 RSA No. 308 of 2013 ORAL JUDGMENT This appeal is arising from a divergent finding. The suit is filed for declaration, injunction, partition and separate possession. The suit was initially decreed awarding 1/2 share to the plaintiff and 1/2 share to defendant No.2. Defendants No.2 and 3 filed the appeal before First Appellate Court and the said appeal is allowed. Consequently the suit is dismissed. Hence, the plaintiff has filed the present second appeal. 2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court. 3. This appeal was admitted on 30.05.2016 to answer the following substantial questions of law. i. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court holding that the Hindu Succession Act, 1956 is not applicable to the facts of the present case, since the appellant was born prior to the commencement of the said Act, in the absence of the male issue to her parents? - 5 - HC-KAR NC: 2025:KHC:37747 RSA No. 308 of 2013 ii. Whether the Lower Appellate Court is justified in reversing the Judgment and Decree of the Trial Court in the facts and circumstances of the case? 4. The facts pleaded by the plaintiff are as under: The suit schedule property originally belonged to the father of the plaintiff-Kariyappa. Admittedly, Kariyappa had two wives namely Kadamma and Kenchamma. It appears that there is no dispute that both marriages took place before 1955. Hence both marriages are valid as per the law prevailing then. 5. From first marriage, Kariyappa has two sons namely Ugrappa and K.Basavaraj. From second marriage, Kariyappa has two daughters namely Byramma and Umadevi. 6. The suit is filed by Byramma, who is the daughter from second marriage. Defendant No.1 is Kenchamma, second wife. Second defendant is Umadevi, the daughter from second marriage. Defendant No.3 is Ajaykumar, the son of Umadevi. 7. The plaintiff has not specifically pleaded that earlier there was a partition between Kadamma and Kenchamma after the demise of the propositus Kariyappa. However, evidence has been led to that effect. - 6 - HC-KAR NC: 2025:KHC:37747 RSA No. 308 of 2013 8. Defendants No.1 and 2 have contested the suit. It is alleged that the suit is defective for not including all the joint family properties, which were in the hands of Kariyappa at the time of his death and not impleading the children from first wife Kadamma. 9. Defendant No.3 made a claim that Kenchamma has executed a registered Gift Deed dated 15.03.2006. Defendant No.4 namely K.Basavaraja, the son from first wife and defendants No.5 and 6 the grand children from first wife came on record on the premise that they are also having share in the property. 10. The Trial Court on appreciation of evidence came to the conclusion that the plaintiff is entitled to share in the property on the premise that there was a partition earlier between two wives of Kariyappa and in the said partition, the suit properties are allotted to Kenchamma representing herself and her two daughters i.e., the plaintiff and defendant No.1. 11. The Trial Court had rejected the contention of defendants No.4 and 5 who claimed that they are also having - 7 - HC-KAR NC: 2025:KHC:37747 RSA No. 308 of 2013 share in the property. As such, the claim of the children from first wife is rejected. 12. The Trial Court held that the gift deed in favour of defendant No.3 alleged to have been executed by defendant No.1 is not valid in the eye of law as the donor claims to have executed a gift deed, in respect of 1/3rd undivided share in the suit properties. 13. It is relevant to notice, defendant No.1-Kenchamma died during the pendency of the suit. Thus, Trial Court held that the plaintiff along with defendant No.2 inherited 1/2 share in Kenchamma's 1/3rd share and in all granted 1/2 share to the plaintiff and 1/2 share to defendant No.2, the sister of the plaintiff. 14. Defendants No.2 and 3 filed the appeal against the aforementioned judgment and decree. Defendants No.4 and 5, who also sought share in the property, did not file any appeal. 15. First Appellate Court has allowed the appeal on two grounds. - 8 - HC-KAR NC: 2025:KHC:37747 RSA No. 308 of 2013 a. The 1/3rd share in the property is transferred by Kenchamma in favour of defendant No.3, her grandson and said gift deed is valid as it is a gift in respect of the definite 1/3rd share of Kenchamma. b. The Appellate Court also held that the suit is time barred and also hit by Order II Rule 2 Code of Civil Procedure. Hence the present second appeal filed by the plaintiff. 16. Learned counsel appearing for the plaintiff urged the following contentions: The relationship between plaintiff and defendant No.2 is not in dispute. Plaintiff and defendant No.2 are the daughters of defendant No.1-Kenchamma. It is established that the properties originally belonged to the father of the plaintiff Kariyappa, who acquired the property in the partition among his brothers. The said partition deed is marked. Said document would reveal that the property is the ancestral property in the hands of Kariyappa and after his demise, the properties devolved on the wife as well as two daughters and 1/3rd share held by the mother, could not have been transferred without - 9 - HC-KAR NC: 2025:KHC:37747 RSA No. 308 of 2013 the consent of the plaintiff, who is also the joint holder of 1/3rd share. 17. It is also urged on behalf of the plaintiff that the children of Kadamma have not questioned the decree rejecting their claim for partition. As such, the previous partition between Kadamma and Kenchamma is established. Learned counsel would also refer to Ex.P15 - the partition dead among Kadamma and her children, which would again establish the fact that the properties inherited from Kariyappa, which were located in two different villages were divided between Kadamma and Kenchamma and inter-say partition among the children of Kadamma, in properties located in one village would establish the partition between Kadamma and Kenchamma. 18. It is the contention of the learned counsel for the appellant that the suit for partition could not have been dismissed on the plea of Order II Rule 2 of Code of Civil Procedure placed by the defendants. It is his submission that the earlier suit was dismissed for non prosecution and cause of action being recurring, Appellate Court could not have held that - 10 - HC-KAR NC: 2025:KHC:37747 RSA No. 308 of 2013 the suit is barred under Order II Rule 2 of Code of Civil Procedure. 19. In support of his contention, learned counsel for the appellant has relied on the judgment in Karsanbhai Dahyabhai Parmar V.Dahiben D/o Dahyabhai Dabhaibhai and Ors'.1 20. The learned counsel appearing for the defendants/respondents would urge that the suit is defective as all the joint family properties which were in the hands of propositus Kariyappa are not included. All the necessary parties namely all the children of first wife Kadamma are not impleaded. 21. The property in the hands of Kenchamma after the demise of Kariyappa, who died in 1960s, is inherited under Section 8 of Hindu Succession Act and she had 1/3rd definite share and she had executed a registered gift deed in favour of defendant No.3 in respect of 1/3rd definite share, as such, the gift is valid, is the submission. 1 AIR 2017 SC 3857 - 11 - HC-KAR NC: 2025:KHC:37747 RSA No. 308 of 2013 22. The plaintiff had earlier filed a suit in OS. No. 108/ 1985 seeking partition and separate possession. Same was dismissed for non prosecution and second suit is barred is another contention raised. The remedy for the plaintiff was to file an application for restoration of the suit, which was dismissed for non-prosecution and suit filed after 20 years from the date of dismissal of the earlier suit for non-prosecution is also barred under limitation is the further submission. 23. This Court has considered the contentions raised at the bar and also perused the records. 24. Considering the contentions raised by the learned counsel for the respondents, who has urged that gift by Kenchamma is valid, to the extent of 1/3rd share, this Court is of the view that one more additional substantial question of law is required to be framed and same is framed as under: 1) Whether the gift deed dated 15.03.2006 executed by defendant No.1 - Kenchamma in favour of defendant No.3 - Ajay Kumar is valid in the eye of law? - 12 - HC-KAR NC: 2025:KHC:37747 RSA No. 308 of 2013 And since the contention is also raised relating to the limitation, one more substantial question of law is also required to be framed as under: Whether the suit of the plaintiff is barred by limitation and whether second suit for partition after the dismissal of earlier suit for partition for non-prosecution is maintainable? 25. As can be noticed from the records that there is no dispute that propositus Kariyappa had two wives by name Kadamma and Kenchamma and both marriages took place before 1955. Thus, both marriages are valid. From second wife Kenchamma, he has two daughters namely Byramma and Umadevi. Byramma is the plaintiff and Uma Devi is defendant No.2. 26. Suit is filed against Kenchamma - Defendant No.1. Umadevi - Defendant No.2 and son of Umadevi, defendant No.3 - Ajay Kumar. As already noticed, the children from first wife came on record, claiming share in the property. The Trial Court has come to the conclusion that they are not entitled to share in the properties, because of the previous partition between - 13 - HC-KAR NC: 2025:KHC:37747 RSA No. 308 of 2013 Kadamma and Kenchamma. The children from first wife, who claimed share in the properties, did not question the decree dismissing their claim. Hence, the said part of the decree has attained finality. 27. It has been proved in the evidence that the properties were originally the ancestral properties in the hands of Kariyappa, as per the partition between Kariyappa and his brothers, in terms of registered partition deed marked at Ex.D18. Thus there is no difficulty in holding that the properties in the hands of Kariyappa were his ancestral properties. 28. It is also admitted that Kariyappa died in the year 1960s i.e., after the commencement of Hindu Suction Act of 1956. 29. At the time of his death, he was survived by his wife and two daughters. Admittedly, the wife and daughters were not coparceners when Kariyappa died in 1960s. Thus, after the partition, the property continued to retain the characteristic of the self-acquired property of Kariyappa. 30. However, Section 6 of Hindu Succession Act, 1956 is amended in the year 2005 conferring status of a coparcener, - 14 - HC-KAR NC: 2025:KHC:37747 RSA No. 308 of 2013 to a daughter. Section 6 as amended entertains certain exceptions. In the present case, no such exception is pleaded by the defendants. 31. The Hon'ble Apex Court in 'Vineeta Sharma vs Rakesh Sharma' has held that amended Section 6 has retroactive effect. In such an event, the daughters of Kariyappa acquired the status of coparceners, as there was no partition in the family before 20.12.2004 and there was no alienation of the properties before the said date. 32. This being the position, pursuant to the amendment of 2005, the property became the coparcenery properties. 33. Admittedly, the gift deed is executed on 15.03.2006 i.e., after the commencement of amended Section 6 of the Hindu Succession Act, 1956. In other words, the gift deed executed by the mother - defendant No.1, in favour of defendant No.3 is in respect of undivided share in the coparcenery property, in which the plaintiff had 1/3rd share and defendant No.1 had 1/3rd share. - 15 - HC-KAR NC: 2025:KHC:37747 RSA No. 308 of 2013 34. Admittedly, the gift deed is executed without the consent of the plaintiff, who had 1/3rd undivided share. The law in this regard is well settled. A gift of an undivided share in the coparcenery property without the consent of the co-sharer is invalid. 35. The Trial Court has referred to the judgments in this behalf and has held that the said gift is invalid. However, First Appellate Court has concluded that the properties are not coparcenery properties. Said finding of First Appellate Court is erroneous and First Appellate Court has not noticed the implication of Amended Section 6 of Hindu Succession Act, 2005. 36. This being the position, this Court has to hold that gift of undivided share in the coparcenery properties in the hands of Kenchamma is invalid for want of consent of the plaintiff, who also had 1/3rd share. 37. As far as the contention relating to the dismissal of earlier suit for non-prosecution and bar to institute a second suit, again it is well settled principle of law that, in a suit for partition, the cause of action is recurring. Though, second suit - 16 - HC-KAR NC: 2025:KHC:37747 RSA No. 308 of 2013 is filed twenty years after the dismissal of earlier suit, what is required to be noticed is, the defendant has not raised a plea of ouster to contend that the suit of the plaintiff is barred by limitation. 38. Thus, First Appellate Court could not have held that the suit is barred by limitation, when there is no plea and evidence relating to ouster. 39. For the aforementioned reasons, this Court is of the view that the substantial questions of law are to be answered in favour of the appellant and against the respondents. Hence the following: ORDER (i) Appeal is allowed. (ii) The impugned judgment and decree dated 12.10.2012 in RA.No.36/2011 on the file of the learned Additional District Judge (Fast Track Court), Chitradurga are set aside. (iii) Consequently, the judgment and decree dated 07.03.2011 in OS.No.89/2006 on the file of the learned Senior Civil Judge, Hiriyur, are restored. - 17 - HC-KAR NC: 2025:KHC:37747 RSA No. 308 of 2013 (iv) Suit of the plaintiff is decreed by granting 1/2 share in the suit schedule properties. (v) Since there are only 2 sharers each having 1/2 share in the suit schedule properties, the final decree Court may provide the option of dividing the properties to the parties to the proceedings as it may reduce the time taken to conclude the final decree proceeding. (vi) In such an event referred to above, the party proposing division of the properties shall prepare the scheme of division and the other party will have the first option of choosing either of the two divisions proposed by the other party. (vii) And once such option referred to above, is exercised, the party choosing a particular portion of the properties shall be put in possession of the same and the properties which form the other division shall be put in possession of the other party. Sd/- (ANANT RAMANATH HEGDE) JUDGE BH/List No.: 1 Sl No.: 10