- 1 - HC-KAR NC: 2025:KHC:31942 RSA No. 2186 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO.2186 OF 2023 (PAR) BETWEEN: SRI. PRAKASHA AGED ABOUT 48 YEARS, S/O KUMBAIAH, RESIDING AT BANDREHALLI VILLAGE, HOLAVANAHALLI HOBLI, KORATAGERE TALUK-572 129. …APPELLANT (BY SRI B R VISWANATH, ADVOCATE) AND: 1. SMT. NARASAMMA AGED ABOUT 56 YEARS, W/O. LAKSHMINARASAIAHA, RESIDING AT NO.44, SAPTAGIRI NILAYA, 1ST MAIN, 4TH CROSS, KOTTIGEPALYA, MAGADI ROAD, VISHWANEEDAM POST, BENGALURU-560 091. 2. SMT YASHODAMMA AGED ABOUT 46 YEARS, W/O LATE NARASAPPA, 3. SRI. VINAYKUMAR AGED ABOUT 26 YEARS, S/O. LATE NARASAPPA, 4. SRI. VIJAYKUMAR AGED ABOUT 23 YEARS, Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:31942 RSA No. 2186 of 2023 S/O. LATE NARASAPPA, 5. SRI. KANTHARAJU AGED ABOUT 51 YEARS, S/O. KUMBAIAH, DEFENDANT 2 TO 5 ARE RESIDING AT BANDREHALLI VILLAGE, HOLAVANAHALLI HOBLI, KORATAGERE TALUK-572 129. 6. SMT. PUTTAMMA AGED ABOUT 52 YEARS, W/O. RAJANNA, RESIDING AT RANGASWAMY NILAYA, 3RD MAIN, 3RD CROSS, KUVEMPUNAGARA, TUMAKURU -572 101. 7. SMT. RATHNAMMA AGED ABOUT 39 YEARS, RESIDING AT NO.33, CHOWDESHWARI NILAYA, KAVITHA LAYOUT, BEHIND CHOWDAPPA, GEETHASHRAMA, 6TH MAIN, 12TH CROSS, BAPOOJI NAGARA, BENGALURU -560 026. …RESPONDENTS (BY SRI VIJAYA KUMAR.T.M, ADVOCATE FOR R1; R2 TO R5 ARE SERVED; SMT.SUMATHI M. HALAGI, ADVOCATE FOR R6 AND R7) THIS RSA IS FILED UNDER SECTION 100 OF CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE DATED 14.09.2023 PASSED IN R.A.NO.12/2019 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, KORATAGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT - 3 - HC-KAR NC: 2025:KHC:31942 RSA No. 2186 of 2023 AND DECREE DATED 16.01.2019 PASSED IN O.S.NO.02/2012 ON THE FILE OF CIVIL JUDGE AND JMFC, KORATAGERE. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri B.R. Vishwanath, learned counsel for the appellant, Sri T.M. Vijaya Kumar, learned counsel for respondent No.1 and Smt. Sumathi M Halagi, learned counsel for respondent Nos.6 and 7. 2. Defendant No.3 is the appellant in this second appeal, challenging the validity of judgment and decree passed in O.S.No.2/2012, confirmed in R.A.No.12/2019. 3. Facts in the nutshell for disposal of the present appeal are as under: 3.1 A suit for partition and separate question came to be filed by Smt. Narasamma, claiming that suit properties earlier belonged to Narasappa S/o Narasappa, which are ancestral properties. Narasappa had two wives, first wife being - 4 - HC-KAR NC: 2025:KHC:31942 RSA No. 2186 of 2023 Chikkamma and second wife Erahanumakka. Chikkamma died leaving behind her only daughter by name Narasamma, who is defendant No.4 in the suit. 3.2 Thus, plaintiff, defendant Nos. 1 to 3, 5 and 6 are daughters and sons of Narasappa. Erahanumakka died leaving behind her only daughter by name Arasammma. Narasappa died about 25 years earlier and during his lifetime, he was the exclusive and absolute owner of schedule properties and other properties. 4. In order to avoid the future dispute, there was a settlement entered into between Narasappa and his two wives and defendant No.4 on 16.04.1969, whereby the suit item Nos. 1, 2, 5, 6 and 8 were allotted to the share of defendant No.4 and her mother Chikkamma. Remaining properties under the settlement of Narasappa were allotted to his second wife and daughter Arasamma when she was minor. 5. Thus, among the suit properties, item Nos.1, 2, 5, 6 and 8 were all properties of defendant No.4 and his mother and mother of defendant No.4 also died about 25 years earlier. - 5 - HC-KAR NC: 2025:KHC:31942 RSA No. 2186 of 2023 After her death, those properties of defendant No.4 continued to be enjoyed along with other items of the suit properties by the plaintiff and defendants. Revenue documents in respect of suit properties are in the name of defendant No.4 and remaining properties of the suit items namely item Nos.3, 4 and 7 are properties of the plaintiff father Kumbaiah, who died about 12 years earlier and mother of the plaintiff died on 25.04.2012. After their death, plaintiff and defendants succeeded to the suit properties and suit properties are all thus undivided joint family properties. 6. Defendants are not in cordial terms with the family and defendant Nos.1 to 3 colluded together and they were making secrete profit out of the income of the suit properties which are detrimental to the interest of the joint family and they have cut the valuable trees situated in the suit properties for their personal gain and thus sought for partition and separate possession. 7. Pursuant to the suit summons, defendant Nos.2 to 5 appeared before the Court, but did not engage any counsel and as such they were placed exparte. - 6 - HC-KAR NC: 2025:KHC:31942 RSA No. 2186 of 2023 8. At the time of service of the suit summons, defendant No.1 was reported to be dead and his legal representatives were brought on record, who also did not choose to contest the suit and they were placed exparte. 9. Defendant No.3 not only appeared before the Trial Court, but filed detailed written statement denying the plaint averments in toto. 10. Defendant Nos.4 and 6 though appeared through their Advocate, it is the defendant No.4 who filed separate written statement and defendant No.6 adopted the written statement filed by the defendant No.4, wherein defendant No.4 partly admitted the plaint averments in accepting the relationship that Narsappa had two wives namely, Chikkamma and Erahanumakka and Narasappa and Chikkamma leaving behind defendant No.4 as their only legal heir and through second wife Erahanumakka only Arasamma was left behind by Narasappa. 11. Defendant No.4 also admitted about the settlement deed dated 16.04.1969, executed by Narasappa. However, defendant No.4 contended that she acquired her father’s - 7 - HC-KAR NC: 2025:KHC:31942 RSA No. 2186 of 2023 properties. Therefore, they are self acquired properties of defendant No.4. Item Nos.1, 2, 5 and 6 of the suit properties are therefore not available for partition. 12. Defendant No.4 also contended that in respect of suit Item Nos.3, 4, 7, 8 and 9 are concerned, she admitted that those properties belonged to Kumbaiah, who is none other than the husband of defendant No.4. 13. She further contended that in the event the suit is to be decreed in respect of those properties, she is also entitled for 1/7th share in the remaining properties and prayed to dismiss the suit of the plaintiff in respect of item Nos.1, 2, 5 and 6. 14. Based on the rival contentions of the parties, Trial Court raised necessary issues and after recording the evidence of the parties, decreed the suit of the plaintiff in part, granting 1/6th share in suit item Nos.1, 3 to 9 of the suit properties, noting the fact that defendant No.4 died during the pendency of the suit. Defendant Nos.1 to 3, 5 and 6 were also granted 1/6th share in item Nos.1, 3 to 9 of the suit properties. Plaintiff and defendant Nos.1 to 3, 5 and 6 were directed to get 1/6th share - 8 - HC-KAR NC: 2025:KHC:31942 RSA No. 2186 of 2023 in 12 ½ guntas of land in Item No.2, out of the total extent of 25 guntas, noting the fact that defendant No.4 died during the pendency of the suit. 15. Being aggrieved by the same, it is the present appellant alone who filed the appeal in R.A.No.12/2019. 16. It is pertinent to note that the appellant before the First Appellate Court was defendant No.3 in the suit, who alone contested the matter. 17. Learned Judge in the First Appellate Court, after securing the records, heard the arguments of the parties and applying the principles of law enunciated in the case of Vineeta Sharma v. Rakesh Sharma, reported in (2020) 9 SCC 1, dismissed the appeal of the defendant No.3, holding that the Trial Judge rightly decreed the suit of the plaintiff, taking note of defendant No.4 being dead during the pendency of the suit. 18. Being further aggrieved by the same, defendant No.3 is before this Court in this second appeal on the following grounds and substantial questions of the law: - 9 - HC-KAR NC: 2025:KHC:31942 RSA No. 2186 of 2023  “The Trial Court and Lower Appellate Court not at all considered the fact of the Suit of the Plaintiff is bad for non-joinder Of necessary parties and partial partition.  The Trail Court and Lower Appellate Court has erred in decreeing the Suit of the Plaintiff without considering the prior Partition has been taken place amongst the plaintiff and Defendants.  The Trail Court as well as Lower Appellate Court has not at all considered the admission given by PW1 in respect of partial partition while passing the impugned judgment.  The Trail Courts below have not properly appreciated the evidence of DW3.  The Trial Court has erred in decreeing the suit of the Plaintiff by allowing 1/6th share. The Lower Appellate Court also erred in confirming the same.  The Trail Court has not at all considered the fact that Plaintiffs father has died much prior to the amendment of Hindu Succession Act 2005. The same was not considered by the Appellate Court also.  It is submitted that the learned judge has failed to appreciate the fact that the Respondents have failed to substantiate their contentions. The Appellant has succeeded in establishing the fact the schedule properties are the absolutely properties of defendant No.4. - 10 - HC-KAR NC: 2025:KHC:31942 RSA No. 2186 of 2023  The learned judge has failed to appreciate the fact that the Appellant has been in possession and enjoyment of the suit schedule properties based on the Revenue Entries.  The Courts below have failed to appreciate the documents, evidence produced by the Appellant/ Plaintiff in its proper perspective Substantial Question Of Law a) Whether the Courts below were right in not appreciating the fact that the Defendant No.4 got certain properties under a registered settlement deed and as such it was not available for partition b) The Courts below whether are wrong in not considering the fact that all the schedule properties are not the joint family properties. C) Whether learned Appellate Judge is right in up-holding the Judgment and Decree passed by the learned Trial Judge in O.S.No.02/2012 without there being any valid reasons? d) Whether the Judgment and Decree passed in R.A.No.12/2019 is passed on assumptions rather than documentary and oral evidence on record? e) Whether the learned Judge was correct in decreeing the suit for partition in respect of properties i.e., Item No.1,2,5,6 and 8 belonging to Defendant No.4 - 11 - HC-KAR NC: 2025:KHC:31942 RSA No. 2186 of 2023 as they were her absolute properties got through registered settlement deed dated 16.04.1969. f) Whether the findings of the learned Trial Judge and learned Appellate Judge is in accordance with law or not?” 19. Sri B.R. Vishwanath learned counsel for the appellant reiterating the grounds urged in the appeal memorandum contended that both the Courts failed to consider the defence of non-joinder of necessary parties in view of the earlier partition. 20. He would further contend that it is settled principles of law and requires no emphasis that suit for partial partition is per se not maintainable unless leave is obtained by the plaintiff to reserve the cause of action for a subsequent suit. 21. He would also contend that the Trial Court erred in granting 1/6th share in the suit properties which has been mechanically upheld by the First Appellate Court and legal principles enunciated in Vineeta Sharma is not applicable to the case on hand as the plaintiff’s father died much earlier to the amendment to Hindu Succession Act, 2005. - 12 - HC-KAR NC: 2025:KHC:31942 RSA No. 2186 of 2023 22. It is also his contention that defendant No.3 was successful in establishing the fact that suit properties are absolute properties of defendant No.4. Therefore granting the decree is incorrect and sought for admitting the appeal for further consideration on the aforesaid substantial questions of the law. 23. Per contra, Sri T.M. Vijaya Kumar, learned counsel for the contesting respondent/plaintiff, supports the impugned judgments. 24. Having heard the arguments of both sides this Court perused the material on record meticulously. 25. On such perusal of the material on record, it is pertinent to note that defendant No.4 admitted the settlement deed executed by her father on 16.04.1969. 26. Admittedly, defendant No.4 being the owner of the property under the settlement deed in respect of item Nos.1, 2, 5 and 6, wanted to settle the property in favour of defendant No. 6 by way of a Will, but the said Will was not proved. - 13 - HC-KAR NC: 2025:KHC:31942 RSA No. 2186 of 2023 27. At any rate, defendant No.3 being not a legatee under the said testament, cannot question the ownership of defendant No.4 in respect of item Nos.1, 2, 5 and 6. 28. Defendant No.4 having died during the pendency of the suit, the 1/7th share that was sought for by defendant No.4 in respect of item Nos.3, 4, 7, 8 and 9 was rightly modified by granting 1/6th share in respect of the suit properties. 29. However, with regard to suit item No.2, learned Trial Judge has specifically stated that it is the defendant Nos.1 to 3, 5 and 6 who are entitled for 1/6 share each in 12 ½ guntas of the land in item No.2 out of the total extent of 25 guntas. Defendant No.3 being the beneficiary under the said judgment of the learned Trial judge, could not have filed appeal at least insofar as item No.2 is concerned. 30. However, defendant No.3 wanted to establish that a separate right, title and interest in respect of the suit properties ignoring the settlement deed that took place when father of the defendant No. 4 namely, Narasappa was alive and he wanted the matter to be settled among the children of first wife and - 14 - HC-KAR NC: 2025:KHC:31942 RSA No. 2186 of 2023 second wife along with the respective wives by duly executing a settlement deed on 16.04.1969. 31. Taking note of these aspects of the matter, learned Trial Judge has rightly decreed the suit of the plaintiff. 32. Learned Judge in the First Appellate Court, applying the principles of law in the case of Vineeta Sharma insofar as the share of the daughter is concerned, is thus, justified even though there was a registered settlement deed 16.04.1969. At any rate, 3rd defendant cannot claim any independent right over the suit property ignoring the settlement deed dated 16.04.1969. 33. Therefore, the dismissal of the appeal by the First Appellate Court, upholding the judgment and decree passed by the Trial Court even defendant No.3 has been allotted proper share requires no interference by this Court in this appeal, having regard to the admitted factual aspects of the matter. No substantial question of law would arise as is framed in the appeal memorandum. Therefore, the appeal needs to be dismissed. - 15 - HC-KAR NC: 2025:KHC:31942 RSA No. 2186 of 2023 Accordingly, the following: ORDER (i) Substantial questions of law raised in the appeal would not merit for further consideration. (ii) Consequently, appeal is dismissed. (iii) No order as to costs. Sd/- (V SRISHANANDA) JUDGE MR