Karnataka High Court
Sri M C Gangadhara vs Sri C K Somashekar on 14 November, 2025
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RSA No. 1059 of 2020
C/W RSA No. 1024 of 2020
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MS. JUSTICE JYOTI M
REGULAR SECOND APPEAL NO. 1059 OF 2020 (PAR)
C/W
REGULAR SECOND APPEAL NO. 1024 OF 2020
IN RSA NO.1059/2020:
BETWEEN:
SRI. M.C.GANGADHARA,
S/O. CHANNABASAPPA,
AGED ABOUT 52 YEARS
IUPD LAYOUT, 5TH BLOCK,
CHITRADURGA, KARNATAKA-577501.
...APPELLANT
(BY SRI. GIRIDHAR S.V., ADVOCATE)
Digitally signed AND:
by THEJAS
KUMAR N
Location: HIGH 1. SRI. C.K.SOMASHEKAR,
COURT OF S/O. B.KUMARASWAMY,
KARNATAKA
AGED ABOUT 39 YEARS,
AGRICULTURIST,
RESIDING AT MATADA
KURUBARA HATTI,
CHITRADURGA,
KARNATAKA-577501.
2. SRI. B.KUMARASWAMY,
S/O. SRI. BORAPPA,
AGED ABOUT 72 YEARS,
RESIDING AT MATADA
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RSA No. 1059 of 2020
C/W RSA No. 1024 of 2020
HC-KAR
KURUBARA HATTI,
CHITRADURGA,
KARNATAKA-577501.
3. SMT. SUDHA MANI,
W/O. SRI. B.KUMARASWAMY,
AGED ABOUT 64 YEARS,
RESIDING AT MATADA
KURUBARA HATTI,
CHITRADURGA, KARNATAKA-577501.
4. SRI. K.PRAHALAD,
S/O. SRI. B.KUMARASWAMY,
AGED ABOUT 45 YEARS,
RESIDING AT MATADA
KURUBARA HATTI,
CHITRADURGA, KARNATAKA-577501.
5. SMT. K.UMA,
D/O. SRI. B.KUMARASWAMY,
W/O. BASAVARAJAPPA,
AGED ABOUT 43 YEARS,
RESIDING AT MATADA
KURUBARA HATTI,
CHITRADURGA, KARNATAKA-577501.
6. SMT. C.K.NALINA,
D/O. SRI. B.KUMARASWAMY,
W/O. NAGENDRAPPA,
AGED ABOUT 41 YEARS,
RESIDING AT NO.368/19,
BESTHAR BLOCK, 3RD CROSS,
SUYAGE FARM ROAD,
VIDYARANYAPURAM, MYSORE-570008.
...RESPONDENTS
(R1 TO R5 ARE SERVED AND UNREPRESENTED;
V/O/D 25.06.2024, NOTICE TO R6 IS DISPENSED WITH)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908.
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RSA No. 1059 of 2020
C/W RSA No. 1024 of 2020
HC-KAR
IN RSA NO.1024/2020:
BETWEEN:
SRI. M.C.GANGADHARA,
S/O. CHANNABASAPPA,
AGED ABOUT 52 YEARS,
IUPD LAYOUT, 5TH BLOCK
DAVANAGERE, KARNATAKA-577004
...APPELLANT
(BY SRI. GIRIDHAR S V., ADVOCATE)
AND:
1. SRI. C.K. SOMASHEKAR,
S/O. B.KUMARASWAMY,
AGED ABOUT 39 YEARS,
AGRICULTURIST,
RESIDING AT MATADA
KURUBARA HATTI,
CHITRADURGA, KARNATAKA-577501.
2. SRI. B.KUMARASWAMY,
S/O. SRI. BORAPPA,
AGED ABOUT 72 YEARS,
RESIDING AT MATADA
KURUBARA HATTI,
CHITRADURGA, KARNATAKA-577501.
3. SMT. SUDHA MANI,
W/O. SRI. B.KUMARASWAMY,
AGED ABOUT 64 YEARS,
RESIDING AT MATADA
KURUBARA HATTI,
CHITRADURGA, KARNATAKA-577501.
4. SRI. K.PRAHALAD,
S/O. SRI. B.KUMARASWAMY,
AGED ABOUT 45 YEARS,
RESIDING AT MATADA
KURUBARA HATTI,
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RSA No. 1059 of 2020
C/W RSA No. 1024 of 2020
HC-KAR
CHITRADURGA,
KARNATAKA-577501.
5. SMT. K.UMA,
D/O. SRI. B.KUMARASWAMY,
W/O. BASAVARAJAPPA,
AGED ABOUT 43 YEARS,
RESIDING AT MATADA
KURUBARA HATTI,
CHITRADURGA, KARNATAKA-577501.
6. SMT. C.K.NALINA,
D/O. SRI. B.KUMARASWAMY,
W/O. NAGENDRAPPA,
AGED ABOUT 41 YEARS,
RESIDING AT NO.386/16,
BESTHAR BLOCK, 3RD CROSS,
SUGAR FARM ROAD,
VIDYARANYAPURAM,
MYSORE-570008.
...RESPONDENTS
(R1 TO R5 ARE SERVED AND UNREPRESENTED;
V/O/D 27.07.2021, NOTICE TO R6 IS DISPENSED WITH)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908.
THESE REGULAR SECOND APPEALS ARE LISTED FOR
FINAL HEARING, THIS DAY, JUDGMENT IS DELIVERED AS
UNDER:
ORAL JUDGMENT
Sri. Giridhar S.V., counsel for the appellant, has appeared
in person.
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Notice to the respondents was ordered on 07.04.2022. A
perusal of the office note depicts that respondents 1 to 5 are
served and unrepresented. They have neither engaged the
services of an advocate nor conducted the case as a party in
person.
A perusal of the daily order sheet depicts that notice to
respondent No.6 is dispensed with vide order dated
25.06.2024.
Sri. Giridhar S.V., counsel for the appellant, has appeared
in person.
Notice to the respondents was ordered on 05.11.2020. A
perusal of the office note depicts that respondents 1 to 5 are
served and unrepresented. They have neither engaged the
services of an advocate nor conducted the case as a party in
person.
A perusal of the daily order sheet depicts that notice to
respondent No.6 is dispensed with vide order dated
27.07.2021.
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2. Both the appeals are from the Court of II Addl.
District and Sessions Judge, Chitradurga.
3. For convenience's sake, the parties are referred to
as per their rankings before the Trial Court.
4. The plaint averments are as follows:
The plaintiff and defendants 1 to 5 are members of a
Hindu Undivided Joint family. It is stated that the suit schedule
properties are their ancestral and joint family properties. The
plaintiff, defendants 1, 3, 4 and 5 have equal rights and share
in the suit schedule properties; none of them has got
independent right to alienate the suit schedule properties. All of
them are in joint possession and enjoyment of the suit schedule
properties, and there is no partition.
It is stated that the plaintiff demanded partition, the
defendants 1 to 5, in collusion with each other, dodged time on
one or another pretext. Ultimately, they refused to affect the
partition of the suit schedule properties. Defendants 1 to 5, in
collusion with each other, canvassed that they would alienate
the suit schedule Item No.1 property in favor of the sixth
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defendant to knock off the plaintiff's lawful share and right over
the said property. Hence, he filed a suit seeking the relief of
partition.
After service of summons, the first defendant appeared
and filed a written statement denying the plaint averments. He
contended that in 2007, he was facing hard days in running a
drama company for want of collections due to the failure of the
rains. Hence, he approached the sixth defendant and requested
him to give a loan of Rs.3,60,000/- with an assurance that he
would return the amount within a year. The sixth defendant
agreed to advance the loan and demanded for execution of a
mortgage deed. However, he got the document prepared as an
Agreement of Sale. He also contended that the sixth defendant
had filed a suit in O.S.No.333/2009 for the relief of specific
performance. Among other grounds, he prayed for dismissal of
the suit.
The sixth defendant filed a separate written statement
and denied the plaint averments. He has specifically contended
that the first defendant is none other than the father of the
plaintiff and had executed a sale agreement in his favor and he
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has filed suit for specific performance. Among other grounds,
he prayed for dismissal of the suit.
Based on the above pleadings, the Trial Court framed
issues. The parties led evidence and documents were exhibited.
The Trial Court vide Judgment and Decree dated 23.02.2016
partly decreed the suit. Aggrieved by the judgment and decree
of the Trial Court, the plaintiff filed an appeal in
R.A.No.24/2016, and the sixth defendant filed an appeal in
R.A.No.25/2016. On an appeal, the First Appellate Court vide
common Judgment and Decree dated 19.02.2020 allowed the
appeal filed by the plaintiff in R.A.No.24/2016 and dismissed
the appeal filed by the sixth defendant in R.A.No.25/2016.
Hence, the sixth defendant has filed the captioned appeal under
Section 100 of CPC.
5. As could be seen from the daily order sheet, the
appeals were listed on 27.08.2024. On that day, the appeals
were admitted, and the following substantial question of law
was framed:
Whether the finding recorded by both the
Courts below is justified in dismissing the suit of
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the plaintiff in O.S.No.30/2011 in a suit for
specific performance with that of the finding
recorded by the Trial Court in O.S.No.16/2009,
dismissing the suit of the plaintiff in respect of
Item No.1 of the suit schedule property?
6. Counsel for the appellant has urged several
contentions. Heard the arguments and perused the appeal
papers and the records with care.
7. The facts are sufficiently said and do not require
reiteration. Contending that the suit-scheduled properties are
ancestral and joint family properties, the plaintiff sued his
father and siblings seeking partition. The properties which are
the subject matter of the present suit were fully described in
the Schedule of properties annexed to the plaint. The
controversy revolves around Item Nos. 1 and 5.
Item No.1 is described as under:
1) Land bearing Sy. No.2/2 measuring 01 Acre
05 Guntas, situated at Matada Kurubarahatti Village,
Chitradurga Taluk and bounded as follows: -
On the East:- Land belongs to B.Kumaraswamy.
On the West:- Land belongs to Mallikarjunappa.
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On the North: - Land belongs to Peer Sab.
On the South:- NH-4.
"The above said land is alienated for non-agricultural
purposes and there is a residential house, which is
more fully described in Item No.5 of the plaint
schedule and a basement to construct a house
measuring 33 ft X 36 ft. situated thereon."
Item No.5 is described as under:
5) Asbestos sheet-roofed house bearing Katha
No.591/P measuring 7.30 Mts. X 14.90 Mts.,
situated at the South-West corner in Item No.1 and
bounded as follows: -
On the East: - Land belongs to B.Kumaraswamy.
On the West: - Land belongs to Mallikarjunappa.
On the North: - Land belongs to B.Kumarswamy.
On the South: - NH-4.
The father, being the sole and absolute owner of the
property (Item No.1), had executed an agreement for sale in
favor of the sixth defendant; hence, he was made a party to
the suit. The Trial Court extenso referred to the material on
record and declined to grant a share in Item No.1: however, on
appeal, the First Appellate Court misdirected itself on the
evidence/ applicable legal principles about Item No.1. It is
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noted that Item No.5 of the schedule is an intrinsic and
inseparable part of Item No.1, and the Court having
conclusively held Item No.1 to be the self-acquired property of
the owner, could not have legally granted a share in Item No.5.
Moreover, the First Appellate Court failed to appreciate the
material evidence on record, vis-à-vis the pleadings to
ascertain as to whether it has been proved that Item No.1 was
a joint family property or otherwise. The adjudication of the
said question depends on the evidence of the plaintiff and not
upon the findings in the suit for specific performance. Except
for stating that Item No.1 is an ancestral and joint family
property, the plaintiff has failed to substantiate the same.
Furthermore, the Trial Court adjudicated the suit for specific
performance effectively and held that Item No.1 (suit schedule
property in the specific performance suit) was the absolute
property of the father and not a joint family property.
As Item No.5 is merely a component of the larger Item
No.1, and the Court has determined Item No.1 to be self-
acquired property, it follows that no share in Item No.5 can be
claimed as a matter of right. The finding that Item No.1
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constitutes self-acquired property necessarily extends to Item
No.5, which is part and parcel thereof. Thus, the grant of a
share in Item No.5 is unsustainable in law.
As already noted above, the father, being the absolute
owner of the self-acquired property (Item No.1), had already
executed an agreement for sale. Consequently, the claim for a
share and allotment of a share in item Nos.1 and 5 is
untenable. I may venture to say that the partition suit
instituted by the son is to deprive the benefits of the agreement
for sale executed by his father.
For the reasons stated above, the appeals are liable to be
allowed. The substantial question of law is answered
accordingly.
8. The Judgment and Decree dated 23.02.2016,
passed by the I Addl. Senior Civil Judge, Chitradurga, in
O.S.No.16/2009, insofar as the rejection of share in Item No.1
is upheld. The grant of shares by the Appellate court in Items
No1 and 5 is set aside. The Judgments and Decrees dated
19.02.2020, passed by the II Addl. District and Sessions Judge,
Chitradurga, in R.A.No.24/2016 and R.A.No.25/2016 are set
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aside. R.A.No.24/2016 filed by the plaintiff is dismissed.
R.A.No.25/2016 filed by the sixth defendant is allowed. The
Registry concerned is directed to draw the decree accordingly.
9. Resultantly, the Regular Second Appeals are
allowed.
Because of the disposal of the appeal, pending
interlocutory applications if any are disposed of and interim
direction if any stands discharged.
SD/-
(JYOTI M)
JUDGE
TKN
