- 1 - HC-KAR NC: 2025:KHC-D:18390-DB RFA No. 100172 of 2025 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 18TH DAY OF DECEMBER 2025 PRESENT THE HON'BLE MR. JUSTICE R.DEVDAS AND THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI REGULAR FIRST APPEAL NO. 100172 OF 2025 (PAR/INJ) BETWEEN: EKANATHSA S/O. NARAYANSA ARASIDDI AGE: 65 YEARS, OCC: SERVICE, R/O. J.T.COLLEGE ROAD, NEAR GANAPATI, TQ. AND DIST: GADAG-582101. …APPELLANT (BY SRI. J.S.SHETTY ASSOCIATES, ADVOCATE) AND: 1. UMA D/O. NARAYANSA ARASIDDI AGE: 60 YEARS, OCC: HOUSEHOLD WORK, R/O. J.T. COLLEGE ROAD, NEAR GANAPATI TEMPLE GADAG, TQ. AND DIST. GADAG-582101. 2. ANNAPURNA W/O. DASHARATH DUTTE @ DANI, AGE: 78 YEARS, OCC: HOUSEHOLD WORK, R/O. C/O. DASHRATH DUTTE, SURVEY NO. 33/1, BLOCK NO. CN CHINTAMANI RESIDENCY, SHANI MARUTI MANDIR, AMBEGON, PUNE-111045. 3. JAYA W/O. SHANKARSA RAYABAGI AGE: 56 YEARS, OCC: HOUSEHOLD WORK, R/O. J.T.COLLEGE ROAD, MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.12.19 10:47:54 +0530 - 2 - HC-KAR NC: 2025:KHC-D:18390-DB RFA No. 100172 of 2025 NEAR GANAPATI TEMPLE GADAG, TQ. AND DIST. GADAG-582101. 4. SMT. SHOBABAI W/O. HANAMANTSA ARASIDDI AGE: 66 YEARS, OCC: HOUSEHOLD WORK, R/O. J.T.COLLEGE ROAD, NEAR GANAPATI TEMPLE GADAG, TQ. AND DIST. GADAG-582101. 5. LAXMI D/O. HANAMANTSA ARASIDDI AGE: 41 YEARS, OCC: HOUSEHOLD WORK, R/O. J.T.COLLEGE ROAD, NEAR GANAPATI TEMPLE GADAG, TQ. AND DIST. GADAG-582101. 6. SAVITA D/O. HANAMANTSA ARASIDDI AGE: 39 YEARS, OCC: HOUSEHOLD WORK, R/O. J.T.COLLEGE ROAD, NEAR GANAPATI TEMPLE GADAG, TQ. AND DIST. GADAG-582101. 7. KAVITA D/O. HANAMANTSA ARASIDDI AGE: 37 YEARS, OCC: HOUSEHOLD WORK, R/O. J.T.COLLEGE ROAD, NEAR GANAPATI TEMPLE GADAG, TQ. AND DIST. GADAG-582101. 8. DEEPAK S/O. GURUNATHSA LADWA AGE: 53 YEARS, OCC: BUSINESS, R/O. KARIYAMMA KALLU BADAVANE, IRANI COLONY, GADAG, TQ. AND DSIT: GADAG-582101. 9. PRAVEEN S/O. SADASHIV ARATTI AGE: 41 YEARS, OCC: DRIVER, R/O. H.NO. 262, 10TH CROSS, SHIVAJI NAGAR, BETAGERI, TQ. AND DIST. GADAG-582101. 10. KIRAN S/O. SADASHIV ARATTI AGE: 39 YEARS, OCC: DRIVER, R/O. H.NO. 262, 10TH CROSS, SHIVAJI NAGAR, BETAGERI, TQ. AND DIST. GADAG-582101. - 3 - HC-KAR NC: 2025:KHC-D:18390-DB RFA No. 100172 of 2025 11. NAVEEN S/O. SADASHIV ARATTI AGE: 41 YEARS, OCC: DRIVER, R/O. H.NO. 262, 10TH CROSS, SHIVAJI NAGAR, BETAGERI, TQ. AND DIST. GADAG-582101. 12. KOMAL W/O. ASHOK NAGARIYA AGE: 54 YEARS, OCC: HOUSEHOLD, R/O. C/O. DEEPAK S/O. GURUNATHSA LADWA, KARIYAMMA KALLU BADAVANE, IRANI COLONY, GADAG, TQ. AND DIST. GADAG-582101. 13. SUMITRA W/O. HARISH KARANIYA AGE: 51 YEARS, OCC: HOUSEHOLD WORK, R/O. NEAR RAJEEVGANDHI NAGAR, POLICE STATION, KELAGINAMANI, GADAG EXTN, GADAG, TQ AND DIST. GADAG-582101. …RESPONDENTS (BY SRI. C.S.SHETTAR, ADVOCATE FOR SMT. KAVYA C.SHETTAR, ADVOCATE FOR R1 TO R13) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC PRAYING TO JUDGMENT AND DECREE DATED 01.02.2025 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM GADAG IN O.S.NO.95/2019, MAY KINDLY BE SET ASIDE BY ALLOWING THIS APPEAL, IN THE ENDS OF JUSTICE AND EQUITY AND ETC. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE R.DEVDAS AND THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI - 4 - HC-KAR NC: 2025:KHC-D:18390-DB RFA No. 100172 of 2025 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE R.DEVDAS) This Regular First Appeal filed at the hands of defendant No.2 in O.S.No.95/2019 on the file of the learned Principal Senior Civil Judge and CJM, Gadag is coming up for admission. 2. Learned counsel for the respondents who not only represents the plaintiffs but also other defendants submits that all the members of the family have accepted the decision of the trial court which has declared 1/6th share each to all the children of late Narayansa. Learned counsel submits that the only ground on which this appeal is filed by defendant No.2 is that one of the daughter of late Narayansa, namely Smt.Vimalabai has not been arrayed as a party-defendant in the suit and no share is declared in favour of said Smt.Vimalabai. Learned counsel submits that it is clearly stated in the plaint that no one has heard of Smt.Vimalabai from many years and there is no information - 5 - HC-KAR NC: 2025:KHC-D:18390-DB RFA No. 100172 of 2025 of the whereabouts of Smt.Vimalabai. Learned counsel submits that there is an admission of defendant No.2, the appellant herein that no one has heard or seen Smt.Vimalabai for many years. In fact, it is stated that Smt.Vimalabai left the house more than 25 years ago. In that view of the matter, learned counsel submits that there is no tenable ground raised in this memorandum of appeal at the hands of defendant No.2. Therefore, the appeal cannot be admitted and it should be dismissed since a better share accrues to all the parties to the suit in the absence of Smt.Vimalabai. 3. Per contra, learned counsel for the appellant/defendant No.2 submits that other than the issue regarding the share to be allotted to Smt.Vimalabai, defendant No.2 has also raised a ground that in the written statement filed at the hands of defendant No.2, he had taken up a contention that there was a prior partition and in terms of prior partition and division of the joint family properties, each of the parties to the suit are enjoying their - 6 - HC-KAR NC: 2025:KHC-D:18390-DB RFA No. 100172 of 2025 shares separately, but the trial court has rejected such a contention on the ground that there is no evidence placed on record to substantiate prior partition. 4. To a pointed question to the learned counsel for the appellant, as to how the appellant is affected if there is no share allotted to Smt.Vimalabai and what is the material on record to prove prior partition, there is no answer from the learned counsel. 5. We also find that in terms of Section 108 of the Indian Evidence Act, 1872, when the question is whether a man/woman is alive or dead, and it is proved that he/she has not been heard of for seven years by those who would naturally have heard of him/her, if he/she had been alive, the burden of proving that he/she is alive is shifted to the person who affirms it. Similar provision is also found in Section 111 of the Bharatiya Sakshya Adhiniyam, 2023. Having regard to the relevant provision, we do not find any infirmity in the finding of the trial court, although the - 7 - HC-KAR NC: 2025:KHC-D:18390-DB RFA No. 100172 of 2025 provision has not been quoted in the judgment. We are also of the opinion that when a better share is given to the parties in the absence of one of the coparcener/family member, there cannot be a valid ground for a party to come before this court and contend that no share is allotted to a person who is not heard of. The appeal requires to be rejected on the ground that tenable ground is not raised by the appellant. 6. For the reasons stated above, we are of the considered opinion that there is no merit in the appeal. Accordingly, the appeal is dismissed. Sd/- (R.DEVDAS) JUDGE Sd/- (B. MURALIDHARA PAI) JUDGE MBS Ct:VH List No.: 1 Sl No.: 16