- 1 - HC-KAR NC: 2025:KHC:43278 RSA No. 289 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.289 OF 2024 (PAR) BETWEEN: 1. NAGESH S/O LATE B GANGADHARAGOWDA, AGED ABOUT 53 YEARS, 2. LAXMIDEVI W/O NAGESH, AGED ABOUT 44 YEARS, APPELLANT No.1 AND 2 R/O CHIKKAMATHIGHATTA VILLAGE, DANDIGANAHALLI HOBLI-573225 CHANNARAYAPATNA TALUK …APPELLANTS (BY SRI SRINIVAS V, ADVOCATE) AND: 1. MANJULA W/O MALLESH GOWDA, AGED ABOUT 55 YEARS, R/O D. SATHENAHALLI VILLAGE, KALKERE POST, CHANNARAYAPATNA TLAUK-573126 Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:43278 RSA No. 289 of 2024 2. SAROJA W/O YOGESH, AGED ABOUT 51 YEARS, R/O NO.327/1, 7TH MAIN, BAPUJINAGARA, MYSURU ROAD, BANGALORE-560038 …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 10.08.2023 PASSED IN R.A.NO.44/2022 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE HASSAN, SITTING AT CHANNARAYAPATNA AND ETC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH - 3 - HC-KAR NC: 2025:KHC:43278 RSA No. 289 of 2024 ORAL JUDGMENT This second appeal is filed challenging the judgment and decree dated 10.08.2023 passed in R.A.No.44/2022 on the file of IV Additional District and Sessions Judge, Hassan. 2. This matter is listed for admission. Heard the learned counsel appearing for the appellant. 3. The Trial Court granted the relief of partition allotting 1/4th share each in the ‘A’ schedule properties and 1/3rd share each in Item No.1 to 13 and 15 to 17 of ‘B’ schedule properties in favour of plaintiffs and defendant No.1 and also granted 1/3rd share each in ‘C’ schedule property in favour of plaintiffs and defendant No.1 and also granted 1/4th share of deceased Gangadharagowda in respect of ‘A’ schedule properties in favour of defendant Nos.1 and 2. The said judgment and decree of the Trial Court was challenged by defendant Nos.1 and 2 before the First Appellate Court. Defendant Nos.1 and 2 i.e., the - 4 - HC-KAR NC: 2025:KHC:43278 RSA No. 289 of 2024 husband and wife took the contention before the First Appellate Court with regard to granting of 1/4th share is erroneous since there was a gift deed executed by the father in favour of defendant No.1. The First Appellate Court having considered the grounds which have been urged, formulated the points that whether the suit schedule properties are the family properties of the plaintiffs and defendants and whether the defendants proved that some properties have been purchased by Gangadharagowda and Anasuyamma from the self income of Gangadharagowda and whether the defendants proved that since Gangadharagowda purchased the properties from his self income, the gift deeds executed by Gangadharagowda are valid and whether the judgment and decree of the Trial Court requires interference of this Court. 4. The First Appellate Court also taken note of the grounds which have been urged by the appellants that properties have purchased in the name of the mother out - 5 - HC-KAR NC: 2025:KHC:43278 RSA No. 289 of 2024 of the self-income of the father and First Appellate Court having considered the points for consideration answered Point No.1 as affirmative holding that the suit schedule properties are the family properties of the plaintiffs and the defendants and answered the Point Nos.2 and 3 as negative in coming to the conclusion that in order to substantiate the contention of the defendants that property was purchased from the income of the father Gangadharagowda, nothing is placed on record and comes to the conclusion that in the absence of any cogent evidence before the Court, the Court cannot comes to a such a conclusion. The First Appellate Court also taken note of the fact that Trial Court granted the relief of 1/4th share each to the plaintiffs in ‘A’ schedule properties and 1/3rd share in Item Nos.1 to 13 and 15 to 17 of ‘B’ schedule properties and 1/3rd share in ‘C’ schedule properties. The First Appellate Court also considered the fact that the property is a joint family property and while answering Point No.1, modified the judgment of the Trial - 6 - HC-KAR NC: 2025:KHC:43278 RSA No. 289 of 2024 Court in coming to the conclusion that admittedly the plaintiffs and defendant No.1 are the coparceners. Now except the plaintiffs and defendant No.1, there are no other survivors in the family. Admittedly, parents of the plaintiffs and defendant No.1 are no more. As per the findings recorded above, all the properties are joint family properties of the plaintiffs and defendant No.1. The judgment and decree further indicates that the Trial Court also granted share to defendant No.2 also and so far as granting share in respect of defendant No.1 is concerned, there is no dispute. So far as granting share to defendant No.2 is absolutely wrong as defendant No.2 is not the coparcener. Defendant No.2 is the wife of defendant No.1 and daughter-in-law of Gangadharagowda and Anasuyamma. Therefore, question of granting the share to defendant No.2 does not arise at all. The First Appellate Court further observed that the plaintiffs have not filed any cross appeal either for correction of decree nor challenged the share granted to defendant No.2. In a suit - 7 - HC-KAR NC: 2025:KHC:43278 RSA No. 289 of 2024 for partition, all the parties are plaintiffs and defendants. The Court has to look into the said aspect and grant decree in accordance with law. Having taken note of the said fact into consideration, the First Appellate Court modified the judgment and decree of the Trial Court and granted equal share to plaintiff Nos.1 and 2 as well as defendant No.1 in respect of the suit settle properties is concerned. Hence, the second appeal is filed before this Court. 5. The learned counsel appearing for the appellants would vehemently contend that the First Appellate Court committed an error in modifying the judgment of the Trial Court and hence, this Court has to frame the substantive question of law that there is no any cross appeal filed by the respondents/plaintiffs without invoking the provisions of Order XLI Rule 33 of CPC, ought not to have modified the same and also counsel would vehemently contend that this Court has to frame substantive question of law that the First Appellate Court - 8 - HC-KAR NC: 2025:KHC:43278 RSA No. 289 of 2024 was not justified in granting equal share to the plaintiffs and defendant No.1 by ignoring the gift deed without adverting to Section 30 of the Hindu Succession Act. 6. Heard the learned counsel appearing for the appellants and also considered the material on record and also the reasons assigned by the Trial Court as well as the First Appellate Court. Having perused the operative portion of the judgment of the Trial Court, it discloses that the Trial Court granted the relief in favour of the plaintiffs as 1/4th share in respect of ‘A’ schedule properties and 1/3rd share each in respect of Item Nos.1 to 13 and 15 to 17 of ‘B’ schedule properties and it is also made clear that plaintiffs and defendant No.1 is entitled for 1/3rd share each in ‘C’ schedule property and further defendant No.1 is entitled for 1/4th share in ‘A’ schedule properties and 1/3rd share in Item Nos.1 to 13 and 15 to 17 in respect of ‘B’ schedule properties as similarly entitled for the plaintiffs and further directed that defendant No.1 and 2 are entitled for 1/4th share of deceased Gangadharagowda in respect - 9 - HC-KAR NC: 2025:KHC:43278 RSA No. 289 of 2024 of ‘A’ schedule properties and the First Appellate Court modified the judgment of the Trial Court and in paragraph 60 rightly comes to the conclusion that there are three coparceners and plaintiffs’ father and mother are no more and suit is also filed after the death of their father and mother and the suit is inter se between the plaintiffs and defendant Nos.1 as they are the sisters and the brother and there is no dispute with regard to the relationship between the parties. The fact is that property belongs to their family is not in dispute. 7. The main contention of counsel appearing for the appellants that the father of appellant No.1 had executed a gift deed and the Court comes to the conclusion that father had no right to execute a gift deed in respect of the property of the mother as he was not having any absolute right. The counsel would vehemently contend that when the father is also having a right in respect of the property of the mother is concerned, the Court can invoke Section 30 of the Hindu Succession Act. - 10 - HC-KAR NC: 2025:KHC:43278 RSA No. 289 of 2024 The learned counsel would vehemently contend that the same has not been considered by the Trial Court and also the First Appellate Court while granting the relief. First of all, the father had no right to execute any gift deed in respect of the property of the mother is concerned. When the father was not having any right over the property of the mother, the question of executing a gift deed in favour of the son does not arise and the said fact was taken note of by the First Appellate Court while modifying the judgment of the Trial Court. When the Court comes to the conclusion that property belongs to the joint family, the succession only among the members of the joint family that is coparceners i.e., plaintiffs and defendant No.1, hence, the reasoning given by the First Appellate Court in paragraph 64 is not erroneous. Hence, I do not find any ground to admit and frame any substantive questions of law since the appellants also not disputes the fact that the plaintiffs along with defendant No.1 are the coparceners and defendant No.2 who is the wife of defendant No.1 - 11 - HC-KAR NC: 2025:KHC:43278 RSA No. 289 of 2024 would not get any right in any of the property, thus, granting of share in favour of defendant No.2 is not correct, hence, the operative portion of the Trial Court is erroneous. Thus, the observation made by the First Appellate Court is in accordance with law. Hence, no ground is made out to admit the appeal and to frame any substantive questions of law. 8. In view of the discussions made above, I pass the following: ORDER The second appeal is dismissed. In view of dismissal of the main appeal, I.A. if any, does not survive for consideration and the same stands dismissed. Sd/- (H.P.SANDESH) JUDGE SN