- 1 - HC-KAR NC: 2025:KHC:51623 RSA No. 507 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 507 OF 2022 (PAR) BETWEEN: 1. NETHRAVATHI W/O LATE K.K. SHIVAPRAKASH @ SHIVAMURTHY AGED ABOUT 35 YEARS HOUSE HOLD WORK 2. THANMAYI D/O LATE K.K. SHIVAPRAKASH, @ SHIVAMURTHY AGED ABOUT 16 YEARS, MINOR, REPRESENTED BY HER NATURAL GUARDIAN MOTHER APPELLANT NO.1. BOTH ARE C/O KANTHARAJ, STATIONARY STORES, R/O VIDYANAGARA, MOODGERE TOWN MOODGERE TALUK, CHIKKAMAGLUR DISTRICT-577 550. …APPELLANTS (BY SRI. PULAKESHI A.P., ADVOCATE A/W SRI. G.V. SHASHI KUMAR, ADVOCATE) AND: 1. KOTRABASAPPA S/O LATE SHIVANNA, AGED ABOUT 70 YEARS, AGRICULTURIST, Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:51623 RSA No. 507 of 2022 R/O JCR EXTENSION, 1ST CROSS, CHITRADURGA TOWN-577 501. PERMANENT R/O BAGENAHAL VILLAGE, HUNSEKATTE POST, TURUVANURU HOBLI, CHITRADURGA TALUK, CHITRADURGA DISTRICT-577 517. 2. SWETHA D/O KOTRABASAPPA, W/O YASHVANTHAREDDY @ KIRTHIREDDY, AGED ABOUT 35 YEARS, R/O 6TH CROSS, IUDP LAYOUT, NEAR GANESHA TEMPLE CHITRADURGA-577 501. 3. ARPITHA D/O KOTRABASAPPA, W/O GOWRISHANKAR AGED ABOUT 34 YEARS, C/O VANI, W/O RUDRAPPA, GOWRISHANKAR ESTATE, BOSAMMANAHALLI, KENCHAMMANA HOSKOTE, ALUR TALUK, HASSAN DISTRICT-573 129. 4. KAVYA D/O KOTRABASAPPA, AGED ABOUT 32 YEARS, R/O NANJUNDESHWARA NILAYA, KANAKAMBRA ROAD, 9TH CROSS, CHANNADINE GOKUL EXTENSION TUMKUR-572 102. 5. SHRUTHI D/O KOTRABASAPPA W/O DANYA KUMAR AGED ABOUT 31 YEARS, - 3 - HC-KAR NC: 2025:KHC:51623 RSA No. 507 of 2022 IUDP LAYOUT, 11TH CROSS, NEAR WATER TANK, KHB COLONY, CHITRADURGA-577 501. …RESPONDENTS (BY SRI. M.G. KANTHARAJAPPA, ADVOCATE FOR R2, R4 & R5) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.12.2021 PASSED IN R.A.NO.1/2017 ON THE FILE OF THE SPECIAL II ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA, DISMISSING THE APPEAL AND UPHOLDING THE JUDGMENT AND DECREE DATED 21.11.2016 PASSED IN O.S.NO.33/2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHITRADURGA. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission. I have heard learned counsel for the appellants and learned counsel for respondent Nos.2, 4 and 5. 2. This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court. - 4 - HC-KAR NC: 2025:KHC:51623 RSA No. 507 of 2022 3. The factual matrix of case of the plaintiffs before the Trial Court while seeking the relief in O.S.No.33/2011 is that suit schedule properties are joint family and ancestral properties of the plaintiffs and defendants. 4. The defendants appeared and filed written statement contending that suit is bad for non-joiner of necessary parties and also contend that written statement schedule properties are also ancestral properties and the same may be included for partition. 5. The Trial Court having considered the plea of the plaintiffs and also the defendant has decreed the suit granting 1/6th share over the suit schedule properties and also the written statement schedule properties. 6. The same is challenged before the First Appellate Court in R.A.No.1/2017 to the extent of questioning the written statement schedule properties contending that there was a registered Will in favour of husband of plaintiff No.1 Shivaprakash and the same was registered on 28.06.1989 during the lifetime of grandfather of Shivanna which is already - 5 - HC-KAR NC: 2025:KHC:51623 RSA No. 507 of 2022 filed before the Trial Court, but the same is not marked and may be permitted to adduce additional evidence. The First Appellate Court though framed points for consideration on I.A.No.3 filed under Order 41 Rule 27(aa) of CPC filed by the appellants and also in respect of I.A.No.1 filed under Order 41 Rule 27(a) of CPC filed by respondent Nos.1 and 3, but allowed the application filed by the respondent Nos.1 and 3 and dismissed the application filed by the appellants. While dismissing the same, made an observation in paragraph No.33 that original Will was not produced and not given any details and not explained when exactly the said alleged Will came to the knowledge of the appellants herein and even its original document is not produced and hence, doubted the same and not allowed the application and even not given an opportunity to the appellants either to produce the original or certified copy of the Will already produced before the Trial Court and proceeded to confirm the judgment of the Trial Court. Hence the present second appeal is filed before this Court. 7. Having considered the arguments of learned counsel for the appellants and also learned counsel for the - 6 - HC-KAR NC: 2025:KHC:51623 RSA No. 507 of 2022 respondent Nos.2, 4 and 5, it is not in dispute that Will was registered on 28.06.1989 and it is also not in dispute that copy of the Will is produced before the Trial Court, but not marked the same. The reasoning of the First Appellate Court is that there is no pleading and also not produced the original Will which was executed in the year 1989 and also both the parties are not disputing the fact that there was partition between grandfather, mother and also one of the son by name Kotrabasappa and the said partition has taken place in the year 1974 and partition deed is also marked as Ex.P8 and also Ex.D1 before the Trial Court and subsequent to the partition itself, Will was executed in the year 1989. When such being the case, the issue which arise for consideration is whether Section 6 attracts or Section 8 attracts, since already there was a division and property was allotted in favour of grandfather Shivanna and even assuming that he did not execute any testamentary document, the question again to be decided is with regard to application of Section 6 or 8 and the same is also not done. The Trial Court while considering the claim of the defendants comes to the conclusion that the same is also an ancestral property and the fact that division has already taken place among - 7 - HC-KAR NC: 2025:KHC:51623 RSA No. 507 of 2022 grandfather, son Kotrabasappa and also grandmother is not in dispute. When such being the case, the First Appellate Court ought to have allowed the application filed under Order 41 Rule 27(a)(a) of CPC and given an opportunity to lead evidence in respect of the Will and other documents are concerned in order to substantiate their claim and without giving an opportunity, an observation is made that only certified copy of the Will is produced and not produced the original Will and such observation ought not to have been made without giving an opportunity. It is left to the appellants to produce the original or certified copy and later if the original is not produced, then adverse inference could have been drawn. But, without giving such an opportunity comes to a conclusion that original Will is not produced and not entertained the application and the very approach of the First Appellate Court is erroneous. 8. Hence, it requires remand of the matter to consider the same afresh by the First Appellate Court in respect of written statement schedule properties, since no dispute with regard to the suit schedule properties are concerned and the issue between the parties is that the plaintiffs claim that there - 8 - HC-KAR NC: 2025:KHC:51623 RSA No. 507 of 2022 is a Will and the defendants dispute the same that no such Will and whether Will is executed or not also to be decided by the First Appellate Court and instead of remanding the matter to the Trial Court, it is appropriate to remand the matter to the First Appellate Court to consider the same by recording the evidence in respect of the Will and give a finding afresh in respect of the claim made by the appellants-plaintiffs and also the claim made by the respondents-defendants. The First Appellate Court is directed to give an opportunity to both the appellants as well as the respondents to adduce their evidence and substantiate their claim. 9. In view of the discussion made above, I pass the following: ORDER (i) The regular second appeal is disposed of with a direction to the First Appellate Court to consider the matter afresh as observed above in respect of the written statement schedule properties and finding with regard to the suit schedule properties is confirmed. (ii) The parties and their respective counsels are directed to appear before the First Appellate - 9 - HC-KAR NC: 2025:KHC:51623 RSA No. 507 of 2022 Court on 07.01.2026 without expecting any notice from the First Appellate Court. (iii) The First Appellate Court is directed to dispose of the matter within a period of 9 months from 07.01.2026 and the respective parties and their counsels are directed to assist the First Appellate Court to dispose of the case within a time bound period of 9 months. (iv) The Registry is directed to send the records to the First Appellate Court, to enable the First Appellate Court to take up the matter on 07.01.2026 without fail. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 43