Karnataka High Court
Sharangouda S/O Chandramappa Kalagi vs Nagamma W/O Kareppa Benkotagi And Ors on 11 August, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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MSA No. 200514 of 2022
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IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
MISCL SECOND APPEAL NO.200514 OF 2022 (RO)
BETWEEN:
SHARANGOUDA
S/O CHANDRAMAPPA KALAGI,
AGE: 36 YEARS,
OCC: AGRICULTURE,
R/O: MURUGANUR,
TQ: JEWARGI,
DIST: KALABURAGI - 585 310.
...APPELLANT
(BY SRI HULEPPA HEROOR AND
SRI B.BHIMASHANKAR, ADVOCATES)
Digitally signed AND:
by SHIVALEELA
DATTATRAYA
UDAGI 1. NAGAMMA
Location: HIGH W/O KAREPPA BENKOTAGI
COURT OF D/O LATE SIDRAMAPPA BIREDAR,
KARNATAKA
AGE: 56 YEARS,
OCC: AGRICULTURE,
R/O: HAALGATHARAGA,
TQ: JEWARGI,
DIST: KALABURAGI - 585 310.
2. BHAGAMMA
W/O LATE BHIMARAYA BIREDAR,
AGE: 49 YEARS,
OCC: AGRICULTURE,
R/O: MURGANOOR,
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MSA No. 200514 of 2022
HC-KAR
TQ: JEWARGI,
DIST: KALABURAGI - 585 310.
3. BASALINGAMMA
W/O SHARANGOUDA KALAGI
D/O LATE BHIMARAYA BIREDAR,
AGE: 29 YEARS,
OCC: AGRICULTURE,
R/O: MURGANOOR,
TQ: JEWARGI,
DIST: KALABURAGI - 585 310.
...RESPONDENTS
(BY SRI AMEET J. HATTI, ADVOCATE FOR
SRI GANESH S. KALBURGI, ADVOCATE FOR R1;
R2 AND R3 SERVED)
THIS MSA IS FILED UNDER SECTION 105 READ WITH
ORDER 43 RULE 1 (U) OF THE CODE OF CIVIL PROCEDURE,
1908, PRAYING TO ALLOW THE APPEAL SET ASIDE THE
IMPUGNED ORDER PASSED IN R.A.NO.15/2018 DATED
28.09.2020 BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC
AT JEWARGI BY GRANTING THE SHARE OF DECEASED
CHANDAWWA IN FAVOR OF APPELLANT AND ETC.
THIS MSA, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR
AMARANNAVAR
ORAL JUDGMENT
This second appeal is filed challenging the judgment
dated 28.09.2020, passed in R.A.No.15/2018, by the
Senior Civil Judge and JMFC, Jewargi.
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2. Heard learned counsel for the appellant and
learned counsel for respondent No.1.
3. Respondent No.1/plaintiff filed a suit for
partition and separate possession of her share in two
properties which are as under:
(1) Agricultural Land bearing Sy.No.9 measuring
14 acres 33 guntas.
(2) Agricultural Land bearing Sy.No.47/1
measuring 6 acres 33 guntas.
4. The suit in O.S.No.138/2012 is filed against the
appellant/defendant No.4, respondent Nos.2 and
3/defendant Nos.2 and 3 and one Chandawwa (defendant
No.1).
5. For the purpose of better understanding, the
genealogy of the family of the plaintiff is as under:
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Sidramappa
(died)
Chandawwa (D-1)
(died)
Bhimaraya Nagamma
(Died) (Plt)
Bhagamma Basalingamma
(D-2) (D-3)
6. The present appellant was defendant No.4 in
the said suit. Defendant No.4 had purchased Sy.No.47/1
measuring 6 acres 33 guntas under registered sale deed
dated 07.03.2012 from defendant No.1/Chandawwa.
Defendant Nos.1 to 4 did not contest the suit. The suit
filed by respondent No.1/plaintiff came to be decreed by
judgment dated 19.11.2012 declaring that the plaintiff has
got 4/9th share in the suit schedule properties. It is further
declared that the registered sale deed bearing document
No.5700/2011-12 dated 07.03.2012 in respect of suit
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property bearing Sy.No.47/1 to the extent of share of the
plaintiff is null and void and same is not binding on the
plaintiff. A preliminary decree was ordered to be drawn.
Defendant Nos.1 to 4 challenged the preliminary decree in
R.A.No.4/2013 and the same came to be dismissed.
Defendant Nos.1 to 4 filed second appeal challenging the
judgment of the First Appellate Court in RSA
No.200017/2014 and the same came to be dismissed
confirming the preliminary decree passed by the Trial
Court. The plaintiff thereafter filed FDP No.8/2013 for
demarcation of her share in the suit schedule properties
and for drawing of final decree. The said petition came to
be allowed by order dated 09.04.2018 and the final decree
was ordered to be drawn based on the Commissioner
report. The said order passed in FDP No.8/2013 has been
challenged by defendant Nos.1 to 4 in R.A. No.15/2018.
The appellant herein/defendant No.4 was a purchaser has
sought allotment of share of Chandawwa (defendant No.1)
to his share, as he has purchased the said property from
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defendant No.1/Chandawwa. During the pendency of the
said appeal, Chandawwa died. The First Appellate Court
taking note of the same in the impugned judgment has
observed as under:
"17. That apart it could be seen from the case
papers that the suit was filed by the plaintiff against
the defendant No.1 to 4. Defendant No.1 is the
mother and defendant No.2 and 3 are the wife and
daughter of deceased brother of the plaintiff.
Defendant No.4 is none other than the husband of
defendant No.3. The trial court has decreed the suit
holding that plaintiff is entitle for 4/9th share in the
suit schedule properties by metes and bounds and
the Registered Sale Deed executed by defendant
No.1 in favour of defendant No.4 is null and void and
not binding on the share of plaintiff. The trial court
has decreed the suit and allotted the share equal to
the share of her brother and allotted notional share
to the mother. But during pendency of the appeal the
defendant No.1 (appellant No.1) was passed away. It
is well settled that the share of the members of the
joint family will increase in case of death of any
member and decrees in case of birth of member.
Therefore in view of death of defendant No.1
naturally the share of plaintiff is increased. Therefore
in the present case on hand the plaintiff is entitle for
share equal to her brother and hence the plaintiff is
entitle for ½ share in the suit schedule properties.
Therefore in view of changed circumstances the
preliminary decree passed by the learned Civil Judge
& JMFC, Jewargi is liable to be modified.
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18. Therefore on consideration of the trial court
records and also the arguments advance from both
sides and also after perusing the lower court records
in FDP No.08/2013, I am concluding that the trial
court has not given opportunity to the defendants to
file objection to the commission report and also not
given opportunity to the defendants side to advance
the arguments on merits. Therefore the order of the
trial court for drawing the final decree is liable to be
set-aside. Similarly in view of changed circumstances
such as death of defendant No.1, the share of
plaintiff and defendant No.2 and 3 is increased and
therefore the preliminary decree has to be modified.
Hence the order of the trial court for drawing the
final decree is liable to be set-aside and matter has
to be remanded to trial court with a direction to give
opportunity to the defendants to file objection to
commission report and also to advance the
arguments on merits and after concluding necessary
requirements of the law to modify the preliminary
decree in accordance with the present position of
law. Hence I am answering to point No.1 in the
negative and point No.2 in the affirmative."
7. By making the said observation, the First
Appellate Court has remanded the matter back to the Trial
Court for fresh disposal of FDP No.8/2013 by giving
opportunity to both sides while considering the
Commissioner report. The said remand order has been
passed only on the ground that the defendants have not
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been given opportunity to file objections to the
Commissioner report.
8. Learned counsel for the appellant would
contend that there was no necessity for the First Appellate
Court to make observation regarding shares of the parties
after death of Smt. Chandawwa (defendant No.1/appellant
No.1). The appellant, purchaser of property from
defendant No.1/Chandawwa has stepped into the shoes of
the said Chandawwa and he can make a claim to allot the
property purchased by him from defendant
No.1/Chandawwa to her share.
9. Learned counsel for respondent No.1/plaintiff
submits that the plaintiff has no objection for allotting
1/9th share of Smt. Chandawwa/defendant No.1 to
appellant herein, who has purchased the property from
her.
10. In view of sale of property bearing Sy.No.47/1
measuring 6 acres 33 guntas by defendant
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No.1/Chandawwa, prior to filing of suit for partition, the
purchaser i.e., defendant No.4 can seek allotment of
property purchased by him to the share of defendant No.1.
What is declared in the preliminary decree passed in
O.S.No.138/2012 is that the sale deed dated 07.03.2012
in respect of the suit property bearing Sy.No.47/1
measuring 6 acres 33 guntas is not binding on the share of
the plaintiff. Therefore, the appellant/defendant No.4,
being a purchaser of property from defendant No.1 can
make a claim in the final decree proceedings to allot 1/9th
share of defendant No.1/Chandawwa to him. Considering
the sale of property by defendant No.1/Chandawwa prior
to suit for partition, her 1/9th share will not devolve on the
plaintiff and defendant Nos.2 and 3. Even on the death of
Chandawwa (defendant No.1), the shares of plaintiff and
defendant Nos.2 and 3 will not enlarge as observed by the
First Appellate Court in paragraph No.17 of the impugned
judgment passed in R.A.No.15/2018. In view of the above,
the observations of the First Appellate Court contained in
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paragraph No.17 of the impugned judgment, regarding
enlargement of the shares of the plaintiff and defendant
Nos.2 and 3 on the death of defendant No.1/Chandawwa
requires to be set aside.
11. Learned counsel for the appellant submits that
after remand as per the impugned order, FDP No.8/2013
has been reopened and Commissioner has proposed ½
share to the plaintiff and ½ share to defendant Nos.2 and
3 in the suit properties and accordingly the Final Decree
Court has passed order allotting ½ share to plaintiff and
remaining ½ share to defendant Nos.2 and 3. He further
submits that he has challenged the said order in
R.A.No.5/2022.
12. In view of the above, the following:
ORDER
(1) The Miscellaneous Second Appeal is allowed in
part.
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(2) The observations of the First Appellate Court
contained in Paragraph No.17 to the effect that
the shares of plaintiff and defendant Nos.2 and
3 will not enlarge on the death of defendant
No.1/Chandawwa is set aside.
(3) The appellant/defendant No.4 can make an
application in FDP No.8/2013.
(4) The order in respect of drawing of final decree
dated 28.02.2022 passed in FDP No.8/2013
based on observations in paragraph No.17 of
the judgment passed in R.A.No.15/2018 is also
set aside.
(5) FDP No.8/2013 is ordered to be reopened with a
direction to given an opportunity to the
appellant/defendant No.4 to make an
application to allot 1/9th share of
Chandawwa/defendant No.1 to defendant No.4.
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(6) The Final Decree Court has to appoint the Court
Commissioner afresh at the cost of the present
appellant/defendant No.4.
(7) In view of the above, the appellant/defendant
No.4, who is the appellant in R.A.No.5/2022 is
permitted to withdraw the same.
(8) As the FDP is of the year 2013, the Final Decree
Court shall expedite the matter and dispose it of
as early as possible.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
RSP
CT: VK
