- 1 - HC-KAR CNR: KAHC010493332017 NC: 2026:KHC:42397 RSA No. 2228 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF AUGUST, 2026 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL No.2228 OF 2017 (PAR) BETWEEN: 1. RATNAMMA W/O LATE SHANMUKHAPPA AGED ABOUT 47 YEARS 2. K S NAGARAJ S/O LATE SHANMUKHAPPA AGED ABOUT 25 YEARS (SINCE APPELLANT NO.2 DEAD LEAVING BEHIND APPELLANT NO.1) 3. K S SUDHA D/O LATE SHANMUKHAPPA AGED ABOUT 23 YEARS 4. K S SIDDESH S/O LATE SHANMUKHAPPA AGED ABOUT 22 YEARS ALL APPELLANTS ARE R/O TARALABALU NAGARA 6TH MILESTONE DAVANAGERE-577 001 …APPELLANTS (BY SRI R GOPALA, ADVOCATE) AND: 1. B K NIRMALA D/O LATE B K BASAVARAJAPPA Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR CNR: KAHC010493332017 NC: 2026:KHC:42397 RSA No. 2228 of 2017 AGED ABOUT 38 YEARS R/O BELAVANUR VILLAGE DAVANAGERE TALUK AND DISTRICT PIN CODE-577 001 2. CHANNBASAPPA S/O LATE BASAVARAJAPPA AGED ABOUT 52 YEARS R/O TARALABALU NAGAR 6TH MILESTONE DAVANAGERE-577 001 3. SMT BASAMMA W/O CHANDRAPPA AGED ABOUT 53 YEARS R/O EMMANABETUR VILLAGE DAVANAGERE-577 001 4. SMT JAYAMMA W/O KARIBASAPPA AGED ABOUT 49 YEARS R/O BORAGONDANAHALLI VILLAGE DAVANAGERE-577 001 5. SHIVALINGAPPA S/O SOMASHEKARAPPA AGED ABOUT 61 YEARS R/O SHIRAMAGONDANAHALLI VILLAGE DAVANAGERE-577 001 …RESPONDENTS (BY SRI G NANDEESH, ADVOCATE FOR C/R; SRI S.B.HALLI, ADVOCATE FOR C/R1; SRI HAREESH BHANDARY.T, ADVOCATE FOR R1, R3, R4; SRI B.PRASANNA KUMAR, ADVOCATE FOR R2; R5- SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CIVIL PROCEDURE CODE, AGAINST THE JUDGEMENT AND DECREE DATED 29.07.2017 PASSED IN R.A.NO.72/2016 ON THE FILE OF THE I ADDL.SENIOR CIVIL JUDGE AND V MACT, - 3 - HC-KAR CNR: KAHC010493332017 NC: 2026:KHC:42397 RSA No. 2228 of 2017 DAVANAGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 21.04.2016 PASSED IN O.S.NO.305/2008 ON THE FILE OF THE ADDL.CIVIL JUDGE, DAVANAGERE. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri R.Gopal, learned counsel for the appellants, Sri G.Nandeesh, Sri S.B.Halli, Sri Hareesh Bhandary T and Sri B. Prasanna Kumar, learned counsel for the respondents. 2. Parties are referred to as plaintiff and defendants as per their original ranking before the Trial Court, for the sake of convenience. 3. Present Second Appeal is filed by defendant Nos.1 to 4 in O.S No.305/2008 challenging the judgment and decree passed in the said suit confirmed in R.A No.72/2016. 4. This Second Appeal came to be admitted on the following substantial questions of law by the co-ordinate Bench on 06.02.2021. (i) Whether the finding of the courts below that the appellants/defendants 1 to 4 are not entitled for any share in the properties held by the propositus B.K. - 4 - HC-KAR CNR: KAHC010493332017 NC: 2026:KHC:42397 RSA No. 2228 of 2017 Basavarajappa on the ground that there was a partition between propositus D.K.Basavarajappa and his son Shanmukhappa vide Ex.D.1 is perverse, palpably erroneous and contrary to the provisions of Section 8 read with Section 6(3) of the Hindu Succession Act, 1956? (ii) Whether the Courts below were justified in not examining settled proposition of law that in a coparcenary property where a coparcener is allotted a share, the same has to be treated as self-acquired property after partition and in the present case on hand his only son B.K. Shanmukhappa died subsequent to B.K.Basavarajappa and after death of B.K.Shanmukhappa, the present appellants who are the legal representatives are entitled for a share under Section 8 read with Section 6(3) of the Hindu Succession Act, 1956?” 5. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under: 5.1 A suit came to be filed in O.S No.305/2008 on the file of the Additional Civil Judge, Davanagere, by plaintiff-Smt. B.K.Nirmala for the relief of partition and separate possession in respect of the following properties hereinafter referred to as ‘suit properties’. Item No.1 - 5 - HC-KAR CNR: KAHC010493332017 NC: 2026:KHC:42397 RSA No. 2228 of 2017 The land bearing Re.Sy.No.35/1P2, measuring 1 acres, 12 guntas assessed at Rs.0.88 ps., situated at Belavanuru village, Davanagere Taluk and bounded by: East : Land of Dodda Kenchappa West : Land of Javalagatta Devaru North : Land of D.M.Basavkumar South : Land of Basavarajappa Item No.2 The land bearing Re.Sy.No.35/4P and Re.Sy.No.35/5P, measuring 1 acres, 11 guntas and 33.08 guntas assessed at Rs.0.88ps., and 0.58ps., situated at Belavanuru village, Davanagere Taluk and bounded by: East : Land of Dodda Bharmapla Jayappa West : Land of Javalagatta Devaru and Yalavatti Onkarappa North : Land of Basavanagouda South : Land of Tenginamarada Mahadevappa Item No.3 The land bearing Re.Sy.No.35/7B, measuring 1 acres, 10½ guntas assessed at Rs.0.87ps. situated at Belavanuru village, Davanagere Taluk and bounded by: East : Land of Dodda Bharmapla Jayappa West : Land of Javalagatta Devaru North : Land of D.M.Basavarajappa South : Sy.No.35/P - 6 - HC-KAR CNR: KAHC010493332017 NC: 2026:KHC:42397 RSA No. 2228 of 2017 Item No.4 The land bearing Re.sy.No.35/8, measuring 2 acres, 20 guntas assessed at Rs.1.71ps. situated at Belavanuru village, Davanagere Taluk and bounded by : East : Land of hemantha Rajappa West : Land of Javalagatta Devaru North : Sy.No.35/7 South : Border of Javalagatta Item No.5 The land bearing Re.sy.No.31/1P2, measuring 2 acres, 37 guntas assessed at Rs.2.35ps situated at Belavanuru village, Davanagere Taluk and bounded by : East : Land of Yalavatti Parameshwarappa West : Land of Yalavatti Kallappa North : Land of Yalavatti Kallappa South : Land of Yalavatti Devendrappa Item No.6 The land bearing Re.sy.No.38/3P2, measuring 3 acres, 10 guntas assessed at Rs.2.25ps situated at Belavanuru village, Davanagere Taluk and bounded by : East : Land of Yalavatti Dasappa West : Halla North : Land of B.K.Shankarappa South : Land of Manjappa - 7 - HC-KAR CNR: KAHC010493332017 NC: 2026:KHC:42397 RSA No. 2228 of 2017 Item No.7 The land bearing Re.sy.No.54/1P2, measuring 4.08 guntas, assessed at Rs.0.10ps., situated at Hadadi village, Kasaba Hobli, Davanagere Taluk and bounded by : East : Land of Sanna Bharmapla Jayappa and Chandrappa West : Davanagere –Channagiri Road North : Land of Gollara Veerappa South : Remaining land in same Sy.No. Item No.8 The land bearing Re.sy.No.54/1P3, measuring 4.08 guntas, assessed at Rs.0.10ps., situated at Hadadi village, Kasaba Hobli, Davanagere Taluk and bounded by : East : Land of Sanna Bharmapla Jayappa and Chandrappa West : Davanagere –Channagiri Road North : Remaining Land in same Sy.No. South : Land of Chikkanahalli Basavarajappa.” 5.2 It is contented that plaintiff and defendant Nos.1 to 7 are the joint family members and suit properties are the joint family properties. B.K.Basavarajappa, Son of Channabasappa was the common propositus of the joint family. Shanmukhappa, who is the husband of defendant No.1, defendant Nos.5 to 7 and the plaintiff are the children of said B.K.Basavarajappa. - 8 - HC-KAR CNR: KAHC010493332017 NC: 2026:KHC:42397 RSA No. 2228 of 2017 5.3 Plaintiff further contended that she remained as a spinster. Defendant Nos.6 and 7, after their marriage are residing with their respective spouses in their matrimonial home. 5.4 B.K.Basavarajappa and his wife died. So also, their eldest son is no more. As such, plaintiff and defendant Nos.1 to 7 are the only members of joint family. 5.5 It is further contented that B.K.Basavarajappa during his lifetime acquired Item Nos.1 to 5 of the suit properties at a partition entered into between B.K.Basavarajappa and his brothers on 16.02.1990. Thereafter by utilizing the joint family funds, B.K.Basavarajappa purchased Item Nos.7 and 8 of the suit properties. 5.6 Dodda Siddappa who is the uncle of B.K.Basavarajappa had no issues and as such, he has given Item No.6 of the suit property which he got at a partition on 16.02.1990 and the said transfer of the property of Item No.6 to B.K.Basavarajappa took place on 16.04.1993. - 9 - HC-KAR CNR: KAHC010493332017 NC: 2026:KHC:42397 RSA No. 2228 of 2017 5.7 Elder brother of the plaintiff, namely Shanmukhappa died and after his death, since nobody is taking care of the plaintiff she demanded her share in the suit properties which was refused by the defendants. Therefore suit for partition came to be filed. 6. Pursuant to the suit summons, defendants entered appearance through their respective advocates. 7. Defendant No.1 being the natural guardian of defendant Nos.2 to 4 filed written statement for herself and on behalf of the minor defendant Nos.2 to 4. Defendant Nos.5, 7, 8 filed their separate written statement. Defendant No.6 adopted the written statement filed by defendant No.7. 8. First defendant contended in her written statement that after the partition that took place on 16.02.1990 among B.K.Basavarajappa and his brothers, another partition took place on 16.04.1993 in the family of Doda Siddappa, who is the uncle of the plaintiff. - 10 - HC-KAR CNR: KAHC010493332017 NC: 2026:KHC:42397 RSA No. 2228 of 2017 9. It is further contented that all other averments which are contrary to the above admitted facts are denied as false. 10. It is also contented that Shanmukhappa and B.K.Basavarajappa entered into a registered partition on 09.07.1992. In the said partition, Item Nos.3 and 4 were allotted to Shanmukhappa who is the husband of the defendant No.1. Item Nos.1, 2 and 5 remained with B.K.Basavarajappa. Therefore, plaintiff cannot lay claim on Item Nos.3 and 4. 11. It is further contented that Shanmukhappa during his lifetime sold Item Nos.3 and 4 of the suit property to 8th defendant under the registered sale deed dated 19.01.2006. 12. As such, those two properties i.e., Item Nos.3 and 4 of the suit properties are not available for partition as it was subject matter of registered partition deed dated 09.07.1992. First defendant’s husband Shanmukappa being the absolute owner having derived the share under the registered partition, was entitled to sell the same in favour of the defendant No.8 and thus, sought for dismissal of the suit. - 11 - HC-KAR CNR: KAHC010493332017 NC: 2026:KHC:42397 RSA No. 2228 of 2017 13. Defendant No.5 in the written statement specifically admitted the relationship among the parties and the partition that took place on 16.04.1993. So also, 5th defendant admitted that Shinmukappa separated himself from the joint family through a registered partition dated 09.07.1992 and took Item Nos.3 and 4 of the suit properties. Therefore, B.K.Basavarajappa allotted Item Nos. 1, 2 and 5 of the suit properties to the fifth defendant and thus sought for dismissal of the suit. 14. Based on the rival contention of the parties, learned Trial Judge raised necessary issues and after recording the evidence of the parties, decreed the suit of the plaintiff in part. 15. The operative portion of the Trial Court judgment reads as under: “The suit of the plaintiff is PARTLY DECREED with cost. It is declared that the plaintiff and defendants No.5 to 7 are entitled for 1/4th share each in the Item No.1, 2, 5, 7 and 8 of the suit schedule properties by metes and bounds and have the possession of the same in accordance with law. - 12 - HC-KAR CNR: KAHC010493332017 NC: 2026:KHC:42397 RSA No. 2228 of 2017 The defendants No.5 to 7 are hereby directed to pay the prescribed court fee on their respective shares within 7 days from today. The Item No.3, 4 and 6 are not available for partition. The defendants No.1 to 4 are not entitled for any share in the Item No.1, 2, 5, 7 and 8 of the suit schedule properties. Draw Preliminary decree accordingly.” 16. Being aggrieved by the same, an appeal came to be filed by defendants Nos.1 to 4 in R.A No.72/2016 on the file of the I Additional Senior Civil Judge, Davanagere. 17. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties and on re- appreciation of the material on record, dismissed the appeal of the defendant Nos.1 to 4. 18. Being further aggrieved by the same, defendant Nos.1 to 4 have preferred the present appeal. 19. As referred to supra, appeal came to be admitted on the aforesaid substantial questions of law. - 13 - HC-KAR CNR: KAHC010493332017 NC: 2026:KHC:42397 RSA No. 2228 of 2017 20. Pursuant to the aforesaid substantial questions of law, Sri R.Gopal, learned counsel for the appellants would contend that both the Courts have not taken into consideration that after death of B.K.Basavarajappa in respect of his share, defendants were also entitled for share in the suit properties and decreeing of the suit by the Trial Court ignoring the said aspect of the matter is opposed to Section 6(2) and (3) of the Hindu Succession Act and thus, judgment and decree needs to be set aside by allowing the appeal. 21. He would further contend that a floor mill i.e., item No.8 is in exclusive occupation of the defendant and therefore, plaintiff cannot be permitted to have any share in the said property. 22. Per contra, learned counsel for the respondents supports the impugned judgment. 23. Learned counsel for the respondents would contend that when there was a previous partition dated 16.02.1990 whereunder Item Nos.3 and 4 have been granted exclusively to - 14 - HC-KAR CNR: KAHC010493332017 NC: 2026:KHC:42397 RSA No. 2228 of 2017 the husband of defendant No.1, namely Shanmukhappa, Shanmukhappa cannot fall back onto the remaining properties of the joint family by taking advantage under Section 6(3) of the Hindu Succession Act and thus sought for dismissal of the appeal. 24. Having heard the arguments of both sides and in the light of the substantial questions of law framed by the co-ordinate Bench of this Court at the time of admission of the appeal, it is just and necessary for this Court to cull out Section 6(3) of the Hindu Succession Act which reads as under: “6. Devolution of interest in coparcenary property.―(1) xxx xxx xxx (2) xxx xxx xxx (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenery property shall be deemed to have been divided as if a partition had taken place and,― (a) the daughter is allotted the same share as is allotted to a son; - 15 - HC-KAR CNR: KAHC010493332017 NC: 2026:KHC:42397 RSA No. 2228 of 2017 (b) the share of the pre-deceased son or a pre- deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre- deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre- deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation.―For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.” 25. In the case on hand, there is no dispute that suit properties namely Item Nos.1 to 5 were the joint family properties and there was a partition on 16.02.1990 between B.K.Basavarajappa and his brothers. - 16 - HC-KAR CNR: KAHC010493332017 NC: 2026:KHC:42397 RSA No. 2228 of 2017 26. One such brother viz., Dodda Siddappa had no issues. Therefore he has given item No.6 of the suit properties to Shanmukhappa, who is the husband of the first defendant. 27. In other words, apart from what the properties that has been given namely Item Nos.3 and 4, at the partition on 09.07.1992, Shanmukhappa also got a property from his uncle Doddasiddappa i.e., Item No.6 of the suit property. 28. Further, the partition deed dated 09.07.1992 whereunder Item Nos.3 and 4 of the suit properties was exclusively granted to Shanmukhappa towards his share in the entire joint family properties under a registered partition. 29. Said partition even today stands without there being any cancellation either on the volition of the parties or by action attributable to the parties. 30. Even assuming that any such action is attributable to the parties, registered partition cannot be nullified unless the parties place such evidence on record whereby reunion has - 17 - HC-KAR CNR: KAHC010493332017 NC: 2026:KHC:42397 RSA No. 2228 of 2017 taken place. It is not the case of the first defendant either that there was a reunion, from the pleadings. 31. After the partition deed dated 09.07.1992, father of the plaintiff acquired few more properties which are Item Nos.7 and 8. Those properties still remain to be the property of the joint family. Properties that had fallen to the share of Shanmukhappa, namely Item Nos.3 and 4 have been sold by Shanmukhappa in favour of 8th defendant through a registered sale deed. Thus, there cannot be any scope for reunion at all. 32. Therefore, the contention of the 1st defendant that the property remained as joint family property and after death of B.K.Basavarajappa in his share the defendant Nos.1 to 4 also have got share and therefore suit items which are in occupation of the defendants should be granted to them cannot be countenanced in law. 33. Thus, the first defendant cannot take shelter under Section 6(3) of the Hindu Succession Act and resist the suit. Consequently, first substantial question of law is answered against the appellant. - 18 - HC-KAR CNR: KAHC010493332017 NC: 2026:KHC:42397 RSA No. 2228 of 2017 34. Insofar as the second substantial question of law is concerned, since the husband of the first defendant is a separated member and Item Nos.7 and 8 were acquired by B.K.Basavarajappa from out of his income as could be seen from the plaint averments itself, it cannot be treated as the self-acquired property of Shanmukhappa, whereby Shanmukhappa or the remaining appellants can lay a claim as per Section 8 of the Hindu Succession Act. 35. Accordingly, second substantial question of law is also answered against the appellants. 36. Consequently, the following: ORDER Appeal is meritless and is hereby dismissed. Sd/- (V SRISHANANDA) JUDGE kcm List No.: 1 Sl No.: 70