Karnataka High Court
Udhayashankar M R vs Arundathi M R on 13 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:46319
RSA No. 1256 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1256 OF 2022 (PAR)
BETWEEN:
1. UDHAYASHANKAR M R,
S/O LATE RAJASHEKAR
AGED ABOUT 58 YEARS,
2. RAMESH M R,
S/O LATE RAJASHEKAR,
AGED ABOUT 56 YEARS,
BOTH ARE R/O MENASAMAKKI VILLAGE,
BELAGODU HOBLI, SAKALESHPURA TALUK,
HASSAN DIST, PIN-573214.
...APPELLANTS
(BY SRI PULAKESHI A P,ADVOCATE)
AND:
1. ARUNDATHI M R,
Digitally W/O PRAKASH,
signed by C AGED ABOUT 62 YEARS,
HONNUR SAB MULLURU VILLAGE,
Location: SHANIVARASANTHE HOBLI,
HIGH COURT SOMAVARAPETE TALUK,
OF KODAGU DISTRICT, PIN-571235.
KARNATAKA
2. SHILAJA M R,
W/O JAYANNA,
AGED ABOUT 60 YEARS,
DADADHAHALLI VILLAGE,
ALUR POST AND TALUK,
HASSAN DISTRICT, PIN-573213.
(AMENDED AS PER COURT ORDER DT 28.02.2024)
...RESPONDENTS
(BY SRI PRAKASH M H, ADVOCATE FOR R1 AND R2)
-2-
NC: 2025:KHC:46319
RSA No. 1256 of 2022
HC-KAR
THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 19.02.2022 PASSED IN
RA.NO.19/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, SAKALESHPUR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 09.07.2019
PASSED IN OS.NO.132/2015 ON THE FILE OF THE CIVIL JUDGE
AND JMFC, SAKALESHPUR.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the appellants counsel and also counsel
appearing for the respondents. This matter is listed for
admission and the second appeal is filed against the
concurrent finding.
2. The factual matrix of the case of the plaintiffs
before the Trial Court by seeking the relief of partition and
separate possession is that the suit schedule property are
the ancestral properties of the plaintiffs and defendants.
Plaintiffs and defendants are joint family members and
also it is contended that defendants by creating false
genealogical tree got divided the suit schedule properties
between themselves under a registered partition deed
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dated 07.10.2013. The same is not binding on their share
and they are entitled for 1/4th share in item No.1 to 5 of
the suit schedule properties. The parties were allowed to
lead evidence and plaintiff No.1 got examined as PW-1 and
Ex.P1 to 21 were marked. On the other hand, defendant
No.1 was examined as DW-1 and got marked documents
as Ex.D1 to 10.
3. The Trial Court having considered both oral and
documentary evidence particularly Ex.P1 to 21 comes to
the conclusion that properties are joint family properties.
Defence was taken by the defendants that one of the item
number properties was sold in terms of Ex.D6 that too for
the marriage of the first plaintiff and inspite of it, Trial
Court granted the relief of partition and the Trial Court
having considered even though the property was sold, no
claim was made in respect of the said property and only
share is claimed in respect of the suit schedule properties
which have been mentioned in the schedule. The plaintiffs
are also the daughters and though there was an inter-se
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partition between the defendants and same cannot bind
the plaintiffs and hence, granted the relief of partition.
4. Being aggrieved by the said finding, an appeal
is filed and Appellate Court also having re-assessed the
material on record and particularly considering both oral
and documentary evidence and also the judgment of the
Hon'ble Apex Court in Vineeta Sharma vs. Rakesh
Sharma1 case and also the partition was effected between
them subsequent to the amendment to Section 6 of the
Code of Civil Procedure. Hence confirmed the judgment of
the Trial Court.
5. Being aggrieved by the said judgment and
decree, the present second appeal is filed before this Court
and the main contention of the counsel appearing for the
appellants is that the Court below failed to consider the
document Ex.D6 in a proper perspective and judgment
and decree of Trial Courts is contrary to the facts and
(2019) 6 SCC 162
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circumstances of the case and the evidence available on
record. Hence, this Court has to admit the second appeal
and frame the substantial questions of law.
6. Per contra, the learned counsel appearing for
the respondents would contend that no dispute with
regard to the sale of property with regard to Ex.D6 and
the same is a certified copy of the sale deed and in respect
of the property which was sold not claimed any share, only
in respect of the existing properties in the family and also
all of them are in joint possession. Hence, entitled for a
share and the same was considered by the trial Court as
well as the Appellate Court and even while considering
issue No.2 and 3 have taken note of the admission on the
part of DW-1 during his cross-examination and he
categorically admits in Ex.D7 that plaintiffs are not the
parties and hence, have not committed any error.
7. I have heard the appellants counsel and also
the counsel appearing for the respondents and considering
the material on record, and though the defendants claim
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that there was a partition in terms of Ex.D7 and
admittedly in the said partition, plaintiffs are not the
parties when the property belongs to the family and when
the parties i.e. the defendants excluded the plaintiffs at
the time of partitioning the property, the same is not
binding on the plaintiffs on the very contention that Ex.D6
the evidence that one of the properties was sold and no
dispute with regard to the said fact in respect of the
property of Ex.D6 and the same is not included in the suit
for partition. Even if that property is sold, that is for the
maintenance of the family and none of the parties have
questioned the same and even though counsel appearing
for the appellants would contend that same is shown for
performing the marriage of plaintiffs. The same cannot be
a ground to defeat the rights of the plaintiffs and hence, I
do not find any error on the part of the Trial Court in
considering both oral and documentary evidence and the
Appellate Court also by reconsidering the appeal exercised
power under Order 41 Rule 31 of the Code of Civil
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Procedure and reassessed the same particularly in
paragraphs No.15, 16, 17 and 18 and in paragraph No.18
also made an observation that married daughters are also
entitled for their share along with the liability if any on
those properties. But no such liabilities are also found.
When such being the case, I do not find any ground to
admit this appeal to frame substantial questions of law.
8. In view of the discussion made above, I pass
the following;
ORDER
i) The Regular Second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
CHS
.
