- 1 - HC-KAR NC: 2026:KHC:3392 RFA No. 497 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR FIRST APPEAL NO.497 OF 2025 (PAR) BETWEEN: 1. SMT.SUDHA D/O LATE ARJUNAPPA AGED ABOUT 59 YEARS 2. SMT.PADMA D/O LATE ARJUNAPPA AGED ABOUT 57 YEARS 3. SRI.RAMESH S/O LATE ARJUNAPPA AGED ABOUT 55 YEARS 4. SMT.VEENA D/O LATE ARJUNAPPA AGED ABOUT 52 YEARS THE APPELLANT NOS.1 TO 4 ARE R/AT NO.2332, 20TH CROSS K.R.ROAD, BANASHANKARI 2ND STAGE BENGALURU-560070 …APPELLANTS (BY SRI.B.S.MAHENDRA, ADVOCATE) AND: SMT.S.ASHA W/O LATE NAGARAJA Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:3392 RFA No. 497 of 2025 AGED ABOUT 50 YEARS R/AT BESIDE YOGANARASIMHA SWAMY RICE MILL SALIGRAMA K.R.NAGAR TALUK MYSORE DISTRICT PIN CODE - 571602 …RESPONDENT (BY SRI.KAMALESHWARA POOJARY, ADVOCATE) THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 26.11.2024 PASSED IN O.S.NO.3297/2008 ON THE FILE OF XVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION AND ETC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM ORAL JUDGMENT The captioned first appeal is filed by the appellants - defendant Nos.3 to 6 assailing the preliminary decree drawn by the court of first instance granting 1/5th share to the plaintiff in the suit schedule properties. 2. Since the case revolves around narrow compass, with the consent of the learned counsels on record, this matter is finally heard at the admission stage. - 3 - HC-KAR NC: 2026:KHC:3392 RFA No. 497 of 2025 3. For the sake of brevity, the parties are referred to as per their rank before the Trial Court. 4. The genealogical tree of the family reads as under; Bheema Gowda | Arjunappa (D.1) Smt.Gowramma (D.2) | ____________________________________________ | | | | | B.A.Nagaraja Smt.Sudha Smt.Padma Ramesh Veena (Husband of (D.3) (D.4) (D.5) (D.6) plaintiff) Brief facts leading to the case are as under; 5. The plaintiff – Smt.S.Asha, widow of late B.A. Nagaraja, instituted a suit for partition and separate possession in O.S. No.3297/2008. It is specifically pleaded that her husband, B.A. Nagaraja, who was a coparcener in the joint family, succumbed to injuries sustained in a road traffic accident on 03.09.1995. The plaintiff asserted that defendant No.1 is the kartha of the joint family and is in - 4 - HC-KAR NC: 2026:KHC:3392 RFA No. 497 of 2025 management and control of the ancestral properties. It is further pleaded that during the lifetime of her husband, defendant Nos.1 and 2 were taking proper care of the plaintiff; however, subsequent to the demise of her husband, they began disputing her legitimate right and share in the suit schedule properties. Since repeated requests for partition were not heeded by defendant No.1, the plaintiff was constrained to institute the present suit seeking her lawful share. 6. Upon service of summons, the defendants entered appearance and filed their written statements. Defendant No.1, in particular, contended that he had secured a site from the Bangalore Development Authority and, after availing a loan, had constructed a residential house thereon asserting the same to be his self-acquired property. Insofar as Schedule ‘B’ property is concerned, defendant No.1 claimed that his paternal aunt, out of love and affection, had executed a registered Gift Deed dated - 5 - HC-KAR NC: 2026:KHC:3392 RFA No. 497 of 2025 15.09.1984 in his favour. It was further contended that the plaintiff had remarried and, therefore, stood disqualified from claiming any share in the suit schedule properties, and on that premise, dismissal of the suit was sought. 7. Based on the rival pleadings, the Trial Court framed appropriate issues and relegated the parties to trial. The plaintiff examined her GPA holder as PW-1 and relied upon 13 documents, while the defendants examined D.Ws.1 and 2 and produced 33 documents in support of their defence. 8. The suit came to be dismissed by the Trial Court vide judgment and decree dated 10.08.2017, primarily on the ground that the plaintiff had remarried and was, therefore, disentitled from claiming a share in the suit schedule properties. Aggrieved by the said judgment and decree, the plaintiff preferred an appeal in RFA No.1904/2017. The Co-ordinate Bench of this Court - 6 - HC-KAR NC: 2026:KHC:3392 RFA No. 497 of 2025 allowed the appeal, placing reliance on the decision in Aruna @ Savita and Another v. Madhavva and Others1, and held that the plaintiff does not incur any disqualification by reason of remarriage. While arriving at the said conclusion, the Co-ordinate Bench adverted to Section 4 of the Hindu Succession Act, 1956 and also took note of the omission of Section 24 of the Act. Consequently, the appeal was allowed and the matter was remanded to the Trial Court with a limited direction to examine and determine whether the suit schedule properties are joint family ancestral properties. 9. After remand, the Trial Court reassessed the entire evidence on record and recorded a categorical finding that the suit schedule properties are joint family coparcenary properties. It was further held that since the plaintiff’s husband was a coparcener, the plaintiff, stepping into his shoes, is entitled to 1/5th share in the suit 1 ILR 2005 KAR 5736 - 7 - HC-KAR NC: 2026:KHC:3392 RFA No. 497 of 2025 schedule properties. Accordingly, the suit was decreed and a preliminary decree was drawn on 26.11.2024, which is assailed in the present appeal. 10. Heard the learned counsel appearing for defendant Nos.3 to 6 and the learned counsel appearing for the plaintiff. Perused the records. 11. This Court has also bestowed its anxious consideration to the findings recorded by the Co-ordinate Bench of this Court in RFA No.1904/2017, whereby it was conclusively held that the plaintiff, notwithstanding her remarriage, is legally entitled to claim a share in the suit schedule properties. 12. In the light of the rival submissions and the material on record, the following points arise for consideration: (i) Whether the finding of the Trial Court holding that the suit schedule properties are joint family ancestral properties and that the - 8 - HC-KAR NC: 2026:KHC:3392 RFA No. 497 of 2025 plaintiff is entitled to 1/5th share suffers from perversity or legal infirmity, particularly in view of the findings rendered by this Court in RFA No.1904/2017? (ii) What order? Findings on point No.(i):- 13. Before this Court proceeds to examine the correctness of the quantification made by the Trial Court while drawing the preliminary decree, it would be apposite to advert to paragraph No.5 to 7 and the operative portion of the judgment rendered by this Court in RFA No.1904/2017, as the said findings have a direct bearing on the issues raised in the present appeal. The relevant portion of the judgment is extracted hereunder: “5. In the case on hand, the plaintiff was married to Mr. B.A. Nagaraja, who is the son of defendant Nos.1 and 2 on 26.03.1995 and the said Nagaraja died in the road accident on 03.09.1995. Admittedly, the plaintiff got remarried on 13.12.1996 after the death of her - 9 - HC-KAR NC: 2026:KHC:3392 RFA No. 497 of 2025 husband and the succession was open when Nagaraja died on 03.09.1995 and the plaintiff got remarried only after the death of her husband. 6. In view of the judgment of this Court and judgment of the Apex Court cited above, the plaintiff is entitled for share in the joint family properties. The finding of the Trial Court that the suit is not maintainable since the plaintiff got remarried, is unsustainable. Even though the defendants have filed written statement and denied that the suit schedule properties are not joint family properties and they are self acquired properties of defendant No.1, the Trial Court has not framed any issues in that regard. 7. Under the circumstances, the appeal is liable to be allowed by setting aside the judgment and decree passed by the Trial Court and matter requires to be remanded to the Trial Court for reconsideration. Hence, the following order is passed: - 10 - HC-KAR NC: 2026:KHC:3392 RFA No. 497 of 2025 ORDER a) The appeal is allowed in part. b) The judgment and decree dated 10.08.2017 passed by the XVII Addl. City Civil and Sessions Judge, Bangalore City in O.S.No.3297/2008, is set aside. c) The matter is remanded to the Trial Court with a direction to the Trial Court to reconsider the matter in accordance with law after giving opportunity to the parties. d) The Trial Court is directed to dispose of the suit as expeditiously as possible, not later than six months from the date of receipt of copy of this judgment.” 14. A careful reading of the extracted portion of the judgment would unequivocally indicate that the plaintiff’s entitlement to a share in the suit schedule properties stands conclusively adjudicated by this Court in RFA No.1904/2017. This Court has categorically held that the plaintiff, notwithstanding her remarriage, does not incur - 11 - HC-KAR NC: 2026:KHC:3392 RFA No. 497 of 2025 any disqualification and is entitled to claim a share in the joint family properties through her deceased husband - late B.A.Nagaraja. In that view of the matter, the present appeal, insofar as it seeks to reagitate the issue of entitlement, is fundamentally misconceived. The remand order passed by this Court while allowing the earlier appeal was narrow and circumscribed, confining the scope of enquiry only to ascertain whether the suit schedule properties are joint family ancestral properties or self- acquired properties of defendant No.1. Therefore, any attempt by the appellants to indirectly nullify or dilute the effect of the preliminary decree drawn by the Trial Court granting 1/5th share to the plaintiff runs contrary to the binding findings already recorded by this Court. 15. Pursuant to the remand, the Trial Court has reappreciated both the oral and documentary evidence and has recorded a finding that the suit schedule properties are coparcenary properties. Consequently, it has held that the plaintiff, stepping into the shoes of her - 12 - HC-KAR NC: 2026:KHC:3392 RFA No. 497 of 2025 deceased husband, is entitled to 1/5th share in the suit schedule properties. 16. In the grounds urged in the present appeal, the principal contention advanced by the defendants is that the plaintiff, by reason of her remarriage, ceased to be a member of the joint family and since the suit was instituted after a lapse of 12 years, the same is barred by limitation under Article 110 of the Limitation Act, 1963. It is contended that the plaintiff was excluded from possession of the joint family properties and, therefore, her right to seek partition stood extinguished. 17. This Court is not persuaded to accede to the said contention. Article 110 of the Limitation Act governs cases where a member of a joint family is excluded from joint family property and seeks to enforce a right to partition. The sine qua non for attracting Article 110 is a clear and unequivocal plea of ouster, coupled with cogent proof thereof, in the manner known to law. Mere non-residence - 13 - HC-KAR NC: 2026:KHC:3392 RFA No. 497 of 2025 or loss of physical possession does not, by itself, constitute exclusion or ouster. The defendants’ contention that the plaintiff stood excluded from the joint family merely on account of her remarriage is legally untenable and wholly misconceived. Remarriage does not sever the jural relationship of the plaintiff with the joint family estate inherited through her deceased husband. In the absence of specific pleadings and evidence demonstrating hostile assertion of exclusive title by the defendants to the knowledge of the plaintiff, the doctrine of ouster cannot be invoked. It has, therefore, to be presumed that the defendants continued to hold possession of the joint family properties not only for themselves but also on behalf of the plaintiff, who continued to have constructive possession over the ancestral properties. Consequently, Article 110 of the Limitation Act has no application to the facts of the present case. Accordingly, point No.1 is answered in the Negative. - 14 - HC-KAR NC: 2026:KHC:3392 RFA No. 497 of 2025 18. Point No.(ii) :- For the foregoing reasons, this Court proceeds to pass the following; ORDER The appeal is devoid of merits and accordingly, stands dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE NBM List No.: 1 Sl No.: 8