Karnataka High Court
Celestine Kunder vs Vathsala Ammanna on 11 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 2189 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 2189 OF 2023 (PAR/POS)
BETWEEN:
CELESTINE KUNDER
AGED ABOUT 81 YEARS
W/O LATE AUGUSTINE KUNDER
R/AT MISSION COMPOUND
MOOLUR VILLAGE, UCHILA POST
KAPU TALUK, UDUPI DISTRICT-574 117.
...APPELLANT
(BY SRI. PRASANNA V.R., ADVOCATE)
AND:
1. VATHSALA AMMANNA
AGED ABOUT 56 YEARS
D/O SUNDARI AMMANNA
Digitally signed 2. VINIL GRINIZ KUNDER
by DEVIKA M
AGED ABOUT 26 YEARS
Location: HIGH S/O SUNDARI AMMANNA
COURT OF
KARNATAKA
BOTH ARE R/AT "BETHANYA"
MISSION CHURCH ROAD
MUDARANGADI
SANTHOOR VILLAGE
PILAR POST, KAPU TALUK
UDUPI DISTRICT-574 113.
...RESPONDENTS
(BY SRI. SUDESH KUMAR ACHARYA U., ADVOCATE)
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RSA No. 2189 of 2023
HC-KAR
THIS RSA IS FILED UNDER SECTION 100 OF CPC., 1908
AGAINST THE JUDGMENT AND DECREE DATED 03.08.2023
PASSED IN RA NO.41/2022 ON THE FILE OF PRINCIPAL
SENIOR CIVIL JUDGE AND CJM, UDUPI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 12.09.2022 PASSED IN OS NO.119/2020 ON THE FILE
OF III ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. Heard the learned counsel for the appellant and
also the learned counsel for the respondents.
2. The present second appeal is filed against the
concurrent finding. The Trial Court when the suit was filed
by the mother against the widow of the deceased son and
lineal descendants seeking half share. Based on the
pleadings, the Trial Court framed five issues and out of
five issues, issue No.3 is a preliminary issue whether the
defendants prove that the suit is not maintainable in view
of Section.33 of Indian Succession Act, 1925. The Trial
Court having considered the issue involved between the
parties, when the claim was made to the extent of half
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share, extracted Section 33 of the Indian Succession Act,
1925 in paragraph Nos.14 and 15 of the judgment and
comes to the conclusion that as per Section 33 of the
Succession Act, the mother is not given any share in the
property of her son when he has left lineal descendant.
Under such circumstances, the plaintiff being the mother
of the deceased Christajeevan Kunder is having no right to
claim partition in respect of the suit schedule property in
the lifetime of lineal descendant and hence answered the
preliminary issue and dismissed the suit.
3. Being aggrieved by the said order, an appeal is
filed in R.A.No.41/2022 and Appellate Court also having
considered the material on record, particularly the
reasoning of the Trial Court even extracted Section 33 and
discussed in detail and comes to the conclusion that Trial
Court has not committed any error in coming to such a
conclusion and dismissed the appeal.
4. Being aggrieved by the said concurrent finding,
the present second appeal is filed. The main contention of
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the counsel appearing for the appellant is that there is no
dispute with regard to the relationship between the parties
are concerned and only Trial Court has erred in dismissing
the suit of the plaintiff holding that the same is barred
under Section 33 of the Indian Succession Act by
considering Issue No.3 and the said approach is
erroneous. The Appellate Court also committed an error in
confirming the same and hence it requires interference.
Hence this Court has to frame substantive question of law.
5. Per Contra, the counsel appearing for the
respondents brought to notice of this Court, order passed
by High Court of Madras in a case of Agnes and Karpaga
Devi V/s Pauline wherein also Section 33 and 33A was
discussed and brought to notice of this Court paragraph
Nos.8 and 10 particularly in respect of the mother is
concerned, held that the mother of an intestate does not
become the heir unless there is a failure on other heirs
namely, widow, the lineal descendant, kindred or Father.
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6. Having heard the appellant's counsel and also
the counsel appearing for the respondents and also
considering the very proviso of Section 33 which has been
extracted in paragraph No.14 of the judgment of the Trial
Court and also the reasoning given in paragraph No.15
wherein specific finding is given that as per Section 33 of
the Indian Succession Act, the mother is not given any
share in the property of her son when he has left lineal
descendant. The Appellate Court also taken note of the
very same proviso in paragraph No.13 and extracted the
same and in paragraph No.14 also discussed the same.
Apart from that the judgment of the Madras High Court
relied upon by the counsel for respondents also applicable
to the factual aspects of the case on hand wherein also
finding is given that mother of an intestate does not
become the heir unless there is a failure on other heirs
namely widow, a lineal descendant, kindred or father and
also discussed Section 33. When such being the case, I do
not find any ground to admit and frame substantive
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question of law since the very proviso under Section 33 of
Indian Succession Act is very clear. Hence, no ground is
made out to admit and frame substantive question of law.
7. In view of the discussions made above, I pass
the following:
ORDER
i) Second appeal is dismissed.
ii) In view of dismissal of the appeal, I.As., if
any do not survive for consideration, the
same stands disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
