- 1 - HC-KAR NC: 2025:KHC:41754 RSA No. 1594 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 1594 OF 2025 (PAR) BETWEEN: SRI TUKARAM RAO S/O LATE SRI. NARAYAN RAO, AGED ABOUT 67 YEARS, AGRICULTURIST, FLOOR MILL OWNER, R/O. NEW BARANDURU VILLAGE, BHADRAVATHI TALUK-577301. …APPELLANT (BY SRI. MALLIKARJUN BASAREDDY, ADVOCATE) AND: 1. SMT. SUDHA W/O KRISHNOJI RAO DHARWADKAR, AGED ABOUT 56 YEARS, HOUSEHOLD, R/O HIREKERURU TOWN HAVERI DISTRICT-581111. 2. SMT. YASHODHA BAI, W/O LATE SRI LAKSHMAN RAO DHUMALE, AGED ABOUT 77 YEARS, AGRICULTURIST. 3. SRI SURESH @ SURI RAO, S/O LATE SRI LAKSHMAN RAO DHUMALE, AGED ABOUT 52 YEARS, AGRICULTURIST, Digitally signed by HEMALATHA A Location: HIGH COURTOF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:41754 RSA No. 1594 of 2025 4. SRI RAVI @ RAVI KUMAR, S/O LATE SRI LAKSHMAN RAO DHUMALE, AGED ABOUT 50 YEARS, AGRICULTURIST. 5. SRI DHANARAJ, S/O LATE SRI LAKSHMAN RAO DHUMALE, AGED ABOUT 47 YEARS, AGRICULTURIST, THE RESPONDENTS 2 TO 5 ARE RESIDING AT: NEW BARANDURU VILLAGE, BHADRAVATHI TALUK-577301. …RESPONDENTS THIS RSA FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 02.08.2025 PASSED IN RA.NO.87/2023 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, BHADRAVATHI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.04.2023 PASSED IN OS.NO.28/2017 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE AND JMFC, BHADRAVATHI. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT 1. Heard the appellant-defendant No.5’s counsel. 2. This matter is listed for admission. This second appeal is filed against the concurrent finding. The claim of the plaintiff before the trial Court is that she is the daughter of Mr.M.Lakshman Rao Dhumale, S/o Nagendra Rao, who - 3 - HC-KAR NC: 2025:KHC:41754 RSA No. 1594 of 2025 died leaving behind his wife (defendant No.1), daughter (plaintiff) and three sons (defendant Nos.2 to 4). The plaint schedule properties are ancestral and joint family properties and the plaintiff is in joint possession and enjoyment of the same. There is no partition between the parties. Hence, claimed 1/5th share in the suit schedule properties. In spite of the demand made by her, they have not given any share and also it is contented that there was a partition and the plaintiff is not a signatory to the said document of partition. Hence, claimed the share over the properties. In response to the suit, defendants have appeared through their respective counsel to contest the case and filed written statement separately. Defendant No.1 has denied the plaint averments. But she has admitted that suit schedule properties are ancestral properties and the plaintiff is having 1/5th share in the suit schedule properties and this defendant is also having right to get 1/5th share. Defendant No.1 never denied the plaintiff to give a share in the suit schedule properties. Defendant Nos.2 to 4 admitted that the plaintiff is the - 4 - HC-KAR NC: 2025:KHC:41754 RSA No. 1594 of 2025 member of the Hindu joint family. Defendant No.5 denied the entire plaint averments and contend that plaintiff has not revealed the true and material facts before the Court and partition already taken place between the family members and they have executed the sale deed. Hence, the plaintiff is not entitled for any share. 3. The trial Court having considered the pleadings of parties and taken note of earlier registered partition, comes to the conclusion that it does not binds the plaintiff since the plaintiff is not a party to the said partition deed and hence granted the share in respect of the suit schedule properties granting 5/25th share in the plaint schedule and defendant No.1 is entitled for 1/25th share in the plaint schedule properties. Being aggrieved by the same, an appeal is filed by the appellant-defendant No.5 and questioned the reasoning of the trial Court in R.A.No.87/2023. The First Appellate Court also having considered the grounds urged in the appeal memo formulated the point and comes to the conclusion that trial - 5 - HC-KAR NC: 2025:KHC:41754 RSA No. 1594 of 2025 Court has not committed any error and has confirmed the judgment of the trial Court. However, modified the share as 1/5th share each to the plaintiff and defendant Nos.1 to 4 in the suit schedule properties. Being aggrieved, the second appeal is filed before this Court by the purchaser (defendant No.5). 4. The main contention of the counsel appearing for the appellant in the second appeal is that in spite of registered partition deed among the family members, the trial Court as well as First Appellate Court committed an error. Counsel would contend that when the plaintiff has not challenged the partition and mutation entry, she ought not to have sought for the relief of partition. The counsel would vehemently contend that the Appellate Court committed an error in modifying the judgment of the trial Court and granting 1/5th share. It ought not to have modified the same in the absence of an appeal filed by the plaintiff and hence, this Court has to frame substantial question of the law. - 6 - HC-KAR NC: 2025:KHC:41754 RSA No. 1594 of 2025 5. Having heard the appellant’s counsel and also the reasons assigned by the trial Court, the plaintiff claims that suit schedule properties are joint family properties. There was no partition and she is entitled for 1/5th share and also contended that partition deed entered between defendant Nos.1 to 4 is not binding on plaintiff and the contention of the defendants that there was a registered partition deed held on 14.12.2012 cannot be accepted. 6. Having considered the material, the trial Court comes to the conclusion that there was a registered partition, but plaintiff is not a party to the said partition deed. The First Appellate Court also on reassessing the material available on record only modified the judgment of the trial Court that each of them are entitled for 1/5th share and no doubt in the absence of any appeal, the same is modified. But the contention of the appellant’s counsel that it ought not to have modified, cannot be accepted and the same is on the question of law and trial Court granted only 5/25th share and the fact that plaintiff is also a daughter of - 7 - HC-KAR NC: 2025:KHC:41754 RSA No. 1594 of 2025 Lakshman Rao Dummale is not in dispute. When he died intestate and property of a male Hindu devolves upon the wife and children and accordingly the plaintiff is entitled for one share. 7. Taking the said fact into consideration that when the plaintiff-respondent No.1 is not a party to the partition deed, the very contention of the counsel that there was already a partition cannot be accepted on the ground that she was not a party to the partition. 8. Hence, I do not find any error on the part of the trial Court as well as the First Appellate Court in re- appreciation of both oral and documentary evidence. The plaintiff is entitled for one share of the properties left by the father, Lakshman Rao Dhumale and accordingly the same has been modified by the First Appellate Court. 9. Hence, no grounds are made out to interfere with the findings of the trial Court as well as the Appellate Court and to admit the second appeal and frame substantial question of law. However, the counsel appearing for the - 8 - HC-KAR NC: 2025:KHC:41754 RSA No. 1594 of 2025 appellant would contend that appellant may be permitted to plead equity before the FDP Court in respect of the property which he had purchased. 10. Hence, the appellant is at liberty to plead equity before the FDP Court in respect of the right over the property, which he had purchased from the other family members. 11. With this observation, the second appeal is disposed of. Sd/- (H.P.SANDESH) JUDGE HA List No.: 1 Sl No.: 52