- 1 - NC: 2025:KHC-D:2833 RSA No. 5929 of 2010 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 12TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 5929 OF 2010 (PAR/POS-) BETWEEN: 1. VIJAYANAND S/O. PARAMESHWAR HEGDE, AGE: 49 YEARS, OCC: AGRICULTURE and BUSINESS, R/O : PADAGERE,TQ: SIRISI, DIST: NORTH KENDRA. 2. VINAYA @ VENKATARAMAN S/O. PARMESHWAR, HEGDE, AGE: 49 YEARS, OCC:HOUSEHOLD, R/O: PADAGERE, TQ: SIRISI. DIST: NORTH KENDRA. …APPELLANTS (BY SRI. B. V. SOMAPUR, ADVOCATE) AND: 1. SRI. PARAMESHWAR MANJAPPA HEGDE, AGE: 83 YEARS, OCC: AGRICULTURE, R/O: PADAGERE, NOW AT NARASIMH NILAYANEAR P and T QUARTERS NEELEKAN, SIRASI, DIST: NORTH KENDRA. (SINCE DECEASED REPRESENTED BY HIS LR’S) 1a. KUMARI KEETI D/O. VINAYA HEDGE, AGE: 22 YEARS, OCC: HOUSE HOLD WORK, Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:2833 RSA No. 5929 of 2010 R/O. PADAGERE, NOW AT NARASHIMH NILAYA, NEAR P & T QUARTERS NEELEKAN SIRSI, DIST: NORTH KENDRA. 2. SRI. VISHWESHWAR S/O. PARMESHWAR HEGDE, AGE: 48 YEARS, OCC: AGRICULTURE, R/O: PADAGERE, NOW AT NARASIMH NILAYA, NEAR P and T QUARTERS NEELEKANI, SIRASI. 3. SRI. RAVINDRA S/O. PARAMESHWAR HEGADE, AGE: 48 YEARS, OCC: AGRICULTURE and BUSINESS, R/O: PADAGERE, TQ: SIRSI, DIST: NORTH KENDRA. 4. SMT. BHARATI W/O. PARAMESHWAR HEGDE, AGE: 56 YEARS, OCC: HOUSE HOLD, R/O: PADAGERE, TQ: SIRSI, DIST: NORTH KENDRA. 5. SMT. SUDHA W/O. VISHWANTH HEGADE AGE: 76 YEARS, OCC: HOUSE HOLD, R/O: KANSURU KOTSAR, HOSMANE TQ: SIDDAPUR, DIST: NORTH KENDRA. 6. SMT. GOWRI @ SHANTHALA W/O. MRUTANJAYA RAO HIREMANE, AGE: 54 YEARS, OCC: HOUSEHOLD, R/O: VAYA TALGUPPA, TQ: SAGAR, DIST: SHIMOGGA. 7. SMT. GANGA W/O. MANJUNATH BHART, AGE: 52 YEARS, - 3 - NC: 2025:KHC-D:2833 RSA No. 5929 of 2010 OCC: HOUSE HOLD, R/O: PLOT NO.32 SRIRAM ANNEXI, HAIDAR SHAH KILLA, POST-GOLKONDA, HYADRABAD. 8. SRI. MANJUNATH S/O. PARAMESHWAR HEGDE, AGE: 75 YEARS, OCC: AGRICULTURE AND ARTIST, R/O. PADAGERE, TQ: SIRSI, DIST: NORTH KENDRA. …RESPONDENTS (BY SRI. A P HEGDE JANMANE & SRI. K.S.PATIL, ADVOCATES) THIS RSA IS FILED UNDER SECTION 100 OF C.P.C., PRAYED THAT, THE JUDGMENT AND DECREE PASSED BY THE LEARNED CIVIL JUDGE (SR.DN), SIRSI IN O.S.NO.24/01 DATED 11.08.2008 JUDGMENT AND DECREE PASSED BY THE LEARNED JUDGE FAST TRACK COURT, SIRSI IN R.A.NO.94/2008, DATED 18.08.2010. SO FAR AS IT RELATES TO REFUSAL OF GRANTING RELIEF OF PARTITION IN FAVOUR OF THE PRESENT APPELLANTS/DEFENDANT NO.3 AND 4 MAY PLEASE BE SET ASIDE AND THE SAID RELIEF MAY PLEASE BE GIVEN TO THEM BY GIVING AN OPPORTUNITY TO THEM TO PAY THE COURT FEE IN RESPECT OF THEIR SHARE IN THE SUIT SCHEDULE A PROPERTY. IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH - 4 - NC: 2025:KHC-D:2833 RSA No. 5929 of 2010 ORAL JUDGMENT 1. This appeal is filed by defendant Nos.3 and 4, challenging the judgment and decree dated 18.08.2010 passed in RA No.94 of 2008 on the file of the Fast Track Court, Sirsi, modifying the judgment and decree dated 11.08.2008 passed in OS No.24 of 2001 on the file of the Civil Judge, (Sr.Dn.) Sirsi, decreeing the suit of the plaintiff. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court. 3. It is the case of the plaintiff that, plaintiff and defendant Nos.2 to 4 and defendant Nos.6 to 8, and one Manjunath (who had taken partition prior to filing of the suit) are the children of the defendant No.1 and defendant No.5. It is stated in the plaint that, the brother of the plaintiff-Manjunath took his share as - 5 - NC: 2025:KHC-D:2833 RSA No. 5929 of 2010 per the Partition Deed on 09.04.1979 and the said Manjunath (respondent No.8 herein) residing separately from his parents as well as brothers and sisters. It is also stated that, there are two schedule properties, namely, Schedule ‘A’ and ‘B’ properties. Schedule ‘A’ property is the joint family property and Schedule ‘B’ property (two items) was given to defendant No.5 as life interest as per the Settlement Deed executed on 24.12.1977. The defendant No.5 is in possession of the Schedule ‘B’ property which also includes residential plots. It is the case of the plaintiff that, there was rift in the family insofar as the share of the properties are concerned and hence, plaintiff filed OS No. 24 of 2001 seeking relief of partition and separate possession in respect of suit schedule properties. 4. After service of summons, the defendants entered appearance. However, the defendant Nos.2, - 6 - NC: 2025:KHC-D:2833 RSA No. 5929 of 2010 4 and 5 have filed written statement denying the averments made in the plaint. It is the case of defendant No.2 that, on 19.04.1979, there was partition in the family and the respondent No.8 herein was allotted with separate share and further stated that, as per Settlement Deed dated 24.12.1977, Schedule ‘B’ property was given to the share of defendant No.5 by way of life interest. It is also stated that plaintiff and defendant Nos.3 and 4 are residing with defendant No.5 and as such, denied the contentions raised in the plaint stating that defendant No.1 has created family rift in the joint family. It is the case of the defendant Nos.4 and 5 that, Item No.15 stands in the name of defendant No.5, and also denied the construction of house in the said property. The defendant No.4 has stated that, OS No.69 of 1999 is filed before the Civil Court, (Jr. Dn.), Sirsi, seeking relief with regard to effective partition as per the wish - 7 - NC: 2025:KHC-D:2833 RSA No. 5929 of 2010 of the defendant No.5 and the said suit was withdrawn. It is also stated that, the defendant Nos.1 an 2 are not cultivating the land bearing Sy.No.7 and 169/1 + 2 and accordingly, sought for share in the suit schedule property. 5. It is the specific case of the defendant No.5 that Schedule ‘B’ property is her exclusive property and neither the plaintiff nor the defendants have share in the said property. 6. On the basis of the rival pleadings, the trial Court has formulated issues for its consideration. 7. In order to establish their case, plaintiff himself examined as PW1 and got marked 18 documents as Exs.P1 to P18. On the other hand, defendants examined three witnesses as DW1 to DW3 and produced 42 documents as Exs.D1 to D42. - 8 - NC: 2025:KHC-D:2833 RSA No. 5929 of 2010 8. The Trial Court, after considering the material on record, by its judgment and decree dated 11.08.2008 decreed the suit of the plaintiff and being aggrieved by the same, the defendant Nos.1 and 2 have preferred Regular Appeal in RA No.94 of 2008 on the file of the First Appellate Court and the said appeal is resisted by the respondents therein. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 18.08.2010, partly decreed the suit and modified the share of the parties in respect of Schedule ‘A’ property and dismissed the suit in respect of Schedule ‘B’ property is concerned. 9. Being aggrieved by the same, defendant Nos.3 and 4 have preferred this Regular Second Appeal under Section 100 of CPC. - 9 - NC: 2025:KHC-D:2833 RSA No. 5929 of 2010 10. This court vide order dated 04.04.2014 formulated the following substantial questions of law for its consideration. i) Whether the First Appellate Court has committed a serious error in denying the relief of partition to the appellants on the ground of non payment of court fee, more particularly, without giving an opportunity for them to pay the court fee ? ii) Whether the First Appellate Court has committed a serious error in modifying the decree and altering the shares of the appellants in respect of suit schedule property by ignoring the material evidence placed on record and thus the judgment of the First Appellate Court is perverse and illegal ? 11. I have heard Sri. B.V. Sompaur, learned counsel for the appellants and Sri. A.P. Hegde Janmane and Sri. K.S.Patil, learned counsel appearing for the respondents. - 10 - NC: 2025:KHC-D:2833 RSA No. 5929 of 2010 12. Sri. B.V. Sompur, learned counsel for the appellants submits that, the lower appellate court has committed an error in denying relief of partition in favour of defendants on the sole ground that the defendants have not paid the court fee and the said finding recorded by First Appellate Court is erroneous as no opportunity has been extended to the defendants/appellants herein to make submission with regard to payment of court fee. It is also argued by the learned counsel appearing for the appellants that, during the pendency of the proceedings, both defendant Nos.1 and 5 died leaving behind the plaintiff, defendant Nos.2 to 4 and 6 to 8 and respondent No.8 herein and therefore, sought for modification of the shares. It is also contended by the learned counsel appearing for the appellants that, the defendant No.1 died on 08.05.2019 leaving behind the plaintiff and other defendants as the legal - 11 - NC: 2025:KHC-D:2833 RSA No. 5929 of 2010 representatives and in this regard, it is submitted that, daughter of defendant No.4 has filed OS No.2 of 2020 seeking right in respect of the share of her grand father-Parameshwar Manjappa Hegde (defendant No.1) and said suit is pending consideration before the competent court, claiming right under a testamentary disposition. It is also submitted by the learned counsel appearing for the appellants that, defendant No.4 has filed OS No.401 of 2017 claiming right in respect of Schedule ‘B’ property through a testamentary disposition made by defendant No.5 in her favour and said suit is pending consideration before the competent Court and accordingly, sought for interference of this court. 13. Sri. A.P. Hegde Janmane and Sri. K.S. Patil, learned counsel for the contesting respondents submits that, there is no dispute with regard to relationship between the parties, however, the - 12 - NC: 2025:KHC-D:2833 RSA No. 5929 of 2010 modification of the shares is to be made taking into consideration the demise of defendant No.1 and defendant No.5. 14. Learned counsel appearing for the respondent No.8 submitted that, the respondent No.8 is the son of defendant No.1 and defendant No.5 and had taken his share during the year 1975 and residing separately from his brothers and sisters. However, it is specific contention of the learned counsel appearing for the respondent No.8 that, as the defendant No.1 and defendant No.5 are no more and died intestate and dispute with regard to rights of the parties claimed in OS No.2 of 2020 and OS No.401 of 2007 is pending consideration and accordingly, submitted that, being the son of defendant Nos.1 and 5, the respondent No.8 is also entitle for share in the properties. Accordingly, sought for interference of this Court. - 13 - NC: 2025:KHC-D:2833 RSA No. 5929 of 2010 15. Heard the learned counsel appearing for both the parties and perused the original records. 16. In order to understand the relationship between the parties, it is relevant to extract the genealogical tree of the parties and same is extracted below: Sri. Parameshwar Manjappa Hegde (Df No.1) Bharati kom Parameshwar Hedge (Df No.5) Ravindra Vishweshwar Vijayanand Vinaya Sudha Gouri Ganga (Plaintiff) (Df No.2) (Df No.3) (Df No.4) (Df No.6) (Df No.7) (Df No.8) 17. Defendant No.1 and defendant No.5 had eight children namely, plaintiff, defendant No.2 to 4, and 6 to 8 and respondent No.8 herein. The relationship between the parties is not disputed. It is also forthcoming from the finding recorded by both the courts below that, Schedule ‘A’ property is ancestral property of the parties and Schedule ‘B’ property has been given to defendant No.5 as per the Settlement - 14 - NC: 2025:KHC-D:2833 RSA No. 5929 of 2010 Deed dated 24.12.1977. The Trial Court, decreed the suit, conferring 1/9th share to the plaintiff and defendants. Defendant Nos.1 and 5 were alive during the conclusion of the proceedings before the Trial Court. It also forthcoming from the finding recorded by Trial Court that, no interference is called for insofar as the division of properties as on the date of decree is concerned. The defendant Nos.1 and 2 have preferred RA No.94 of 2008 before the First Appellate Court and the First Appellate Court in all aspects confirmed the judgment and decree passed by the Trial Court, however, negatived the contention of the defendants on the sole ground of non-payment of court fee. In this regard, it is not in dispute that, the plaintiff and defendant Nos.2 to 4 and 6 to 8 including respondent No.8 herein are the children and in the event of division of the properties, all the parties have to bear admissible court fee and in this regard, - 15 - NC: 2025:KHC-D:2833 RSA No. 5929 of 2010 substantial question of law No.1 is answered, as all parties concerned to the suit are directed to pay admissible court fee in terms of the provisions contained in the Karnataka Court Fees and Suits Valuation Act, 1958. 18. Nextly it is contended by the learned counsel appearing for the appellants and respondent No.8 herein that, the shares have to be modified on account of death of defendant No.1 and defendant No.5. Defendant No.5 died on 30.03.2013 and defendant No.1 died on 08.05.2019. Though the suits in OS No.2 of 2020 and OS No.401 of 2017 are filed by the daughter of the defendant No.4 and defendant No.4 respectively, claiming right in respect of the share of defendant Nos.1 and 5, as per the testamentary disposition and same are pending consideration before the competent Civil Court and therefore, I am not inclined to give opinion in respect - 16 - NC: 2025:KHC-D:2833 RSA No. 5929 of 2010 of the claim made by the parties therein. However, taking into consideration, in the absence of aforementioned two suits which required to be adjudicated by the competent courts, the devolution of the property together in respect of Schedule ‘A’ property that, the plaintiff, defendant Nos. 2 to 4 and 6 to 8 are entitle for 1/9th share as well as the share of 1/72th of defendant No.1 and 5 together. The plaintiff, defendant Nos.2, to 4 and 6 to 8 are entitle for 10/72th share each. In this regard, respondent No.8-Manjunath, is entitle for 1/36th share in the Schedule ‘A’ property. In respect of Schedule ‘B’ property is concerned, which was given in favour of defendant No.5 as per Settlement Deed dated 24.12.1977, and the same has to be devolved to an extent of 1/8th share each in favour of plaintiff, defendant Nos.2 to 4 and 6 to 8 and respondent No.8 herein. The aforementioned division has been made - 17 - NC: 2025:KHC-D:2833 RSA No. 5929 of 2010 by this Court without considering the claim made by the defendant No.4 and her daughter in the aforementioned suits which requires to be adjudicated by the competent Civil Court. In the result, I pass the following: ORDER i) The Regular Second Appeal is partly allowed subject to payment of admissible Court Fee by all the parties to the suit, since claiming of the share in the suit schedule property in terms of the provisions of Karnataka Court Fees and Suits Valuation Act, 1958. ii) Registry is directed to draw the preliminary decree accordingly. Sd/- (E.S.INDIRESH) JUDGE SB List No.: 1 Sl No.: 17