Karnataka High Court
Smt.Nagamma vs Sri.R.Nagaraju on 5 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:44834
RSA No. 1725 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1725 OF 2022 (PAR)
BETWEEN:
SMT.NAGAMMA
W/O NARAYANA,
SINCE DEAD BY HER LR'S
DIED ON 16.07.2020
1. SMT NIRMALA
D/O NARAYANA,
AGED ABOUT 54 YEARS,
2. SMT SOWBHAGYA
D/ON ARAYANA,
AGED ABOUT 53 YEARS,
Digitally signed 3. SMT DHANALAKSHMI
by DEVIKA M
D/O NARAYANA,
Location: HIGH
COURT OF AGED ABOUT 52 YEARS,
KARNATAKA
4. SMT ROOPA
D/O NARAYANA,
AGED ABOUT 49 YEARS,
ALL ARE RESIDING AT NO.89/1B, STSH,
4TH CROSS, RAJENDRA NAGARA,
KESARE, MYSORE - 570007.
...APPELLANTS
(BY SRI. BALAKRISHNA K, ADVOCATE)
-2-
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AND:
1. SRI.R.NAGARAJU
S/O LATE RAMEGOWDA,
AGED ABOUT 76 YEARS,
R/AT NO.3, O.D.BLOCK,
MAIN ROAD,
RAJENDRA NAGARA,
MYSURU-570007.
2. SMT JAYAMMA
W/O LATE THIMMAIAH,
AGED ABOUT 86 YEARS,
R/AT NO.261, 1ST FLOOR,
MIG GROUP-1, KHB COLONY,
HOOTAGALLI,
MYSORE - 570 018.
SMT AMMAYAMMA
W/O LATE PUTTASWAMY DEAD BY HER LRS,
JAGADEESH,
S/O PUTTASWAMY,
AGED ABOUT 68 YEARS,
DEAD BY LRS
3. NAGARATHNA,
W/O LATE JAGADEESH,
AGED ABOUT 54 YEARS,
4. VINAY
S/O LATE JAGADEESH,
AGED ABOUT 34 YEARS,
5. POORNIMA
D/O LATE JAGADEESH,
-3-
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AGED ABOUT 32 YEARS,
R2 TO R5 ARE R/AT NO.94/2B, 4TH CROSS
RAJENDRA NAGARA
MYSURU CITY - 570 007.
6. PUTTASWAMY
S/O PUTTASWAMY,
AGED ABOUT 60 YEARS,
7. SRI P LAXMANA
S/O PUTTASWAMY,
AGED ABOUT 56 YEARS,
8. P JAYALAXMI
D/O PUTTASWAMY,
AGED ABOUT 68 YEARS,
9. P NATARAJA
S/O PUTTASWAMY,
AGED ABOUT 43 YEARS,
R4 TO R9 ARE R/AT NO.94/2B,
4TH CROSS, RAJENDRA NAGARA,
MYSURU CITY - 570 007.
10. SMT PREMA
W/O LATE MAHADEVA,
AGED ABOUT 84 YEARS,
R/AT NO.1785, 2ND CROSS,
HULLINA BEEDI, SEETHARAMA RAO ROAD,
K.R.MOHALLA, MYSURU - 570 007.
...RESPONDENTS
(Sri. Srinivas V, Advocate for proposed R1(B TO D); R9
SERVED
-4-
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VIDE ORDER DATED 17.06.2025, NOTICE TO R1(B TO D) R6,
R7, R8 ARE HELD SUFFICIENT
VIDE ORDER DATED 25.09.2025, R2 (A TO D), R3, R5 AND
R10(A AND B) CALLED OUT ABSENT
R1 (B TO D) ARE TREATED AS LRS OF DECEASED R1(A)
VIDE ORDER DATED 17.10.2025,
NOTICE TO R4 HELD SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 20.07.2022
PASSED IN RA.No.54/2020 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 02.08.2019 PASSED IN OS No.1295/2010
ON THE FILE OF THE PRINCIPAL I CIVIL JUDGE AND JMFC,
MYSURU AND ETC.
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 learned counsel for the appellant and also
learned counsel for the respondent.
2. This matter is listed for admission.
3. The second appeal is filed against the concurrent
finding of trial Court and Appellate Court. The records reveal
that earlier also matter was remanded to the trial Court to
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provide an opportunity to the plaintiff to implead his sister and
their legal heirs as defendants and to provide opportunity to
implead defendants to adduce evidence and to pass judgment
inkeeping the observations made by this Court. In the earlier
appeal also, in RA No.94 of 2017 with regard to the Will is
concerned, which have been proposed by the plaintiffs, held
that the same is not proved since there is no any compliance of
mandatory requirements of Indian Evidence Act and answered
the issue No.2 as negative. It was also taken note of while
disposing of the matter that the appellate court while disposing
the Appeal R.A.No.94 of 2017 held that property is absolute
property of Ningamma and she died intestate and directed the
court to dispose of the case by keeping in mind about the
observations made by the court and taking note of the said fact
into consideration considered the issue No.5 and granted 1/5th
share since the plaintiffs are the legal heirs of Ningamma. The
same is challenged before the appellate court in R.A.No.54 of
2020. The appellate court also having considered the grounds,
which have been urged, there was a delay in filing the appeal
and delay was condoned and also an application was filed under
Order XLI Rule 27 of the Code of Civil Procedure, 1908 and the
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same was answered as negative and also while answering point
No.3, whether the trial Court committed an error in granting
the relief also taken note of and comes to the conclusion that
trial Court has not committed any error in granting the relief of
1/5th share in respect of the suit shutter property. The same is
challenged before this Court in this second appeal.
4. Learned counsel appearing for the appellant would
vehemently contend that both the courts have committed an
error in granting the relief of partition in granting 1/5th share
having held that the Will dated 16.09.1986 was not proved.
Learned counsel would vehemently contend that when the
defence was raised that the property was self-acquisition of the
property by Narayana, the husband of the defendant No.1,
ought not to have granted such relief. Learned counsel also
would vehemently contend that when an application is filed
under Order XLI Rule 27 of CPC, ought not to have dismissed
wnd the very approach of the appellate court is also erroneous
in rejecting the application filed under Order XLI Rule 27 of CPC
and hence, this court has to frame substantive question of law.
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5. Per contra, learned counsel appearing for the
respondent would immediately contend that this is a second
round of litigation and earlier also an appeal was filed
R.A.No.94 of 2017 against the judgment and decree of the trial
Court and appeal was also remanded only with a direction to
bring the legal representatives on record and dispose of the
same and wherein an observation is made in R.A.No.94 of 2017
that the property belongs to Ningamma. Learned counsel also
brought to notice of this Court that the order passed in
R.A.No.94 of 2017 was also challenged in MSA No.136 of 2017
regarding remanding of the matter and the MSA was allowed
and only the application filed Order I Rule 10 of Code of Civil
Procedure, 1908 for impleading was allowed. An observation is
also made that it is an undisputed fact that sisters are also
entitled for consideration of their claim in a suit for partition
and separate possession filed by the brother and do not find
any error apparent or illegality committed by the first appellate
court in allowing the appeal in part and remitting the matter
back to the Trial Court to consider the same and dismissed the
MSA.
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6. Having heard the appellate counsel and also the
counsel appearing to the respondent and also particularly
considering the material on record, the suit is filed for the relief
of partition and no doubt the plaintiff has claimed half share
based on the Will and courts have given the finding that Will
was not proved and only considered Issue No.4, whether the
plaintiff is entitled for a share in the property. Having
considered the reasoning given by the trial court and also the
appellate court and appellate court also in the first round of
appeal, comes to the conclusion that property belongs to
Ningamma and the said finding was not challenged and when
the MSA was filed and the same was also dismissed and when
such being the case, now counsel appearing for the appellant
cannot contend that the property belongs to the husband of the
appellant and made the payment. When already there was a
finding that property exclusively belongs to the Ningamma and
legal heirs are entitled for a share over the property and trial
Court having considered the same, 1/5th share was granted.
The same is challenged before the Appellate Court and
Appellate Court considering the view of the finding already
given by the Appellate Court in RA No.94 of 2017 that property
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belongs to Ningamma, question of entertaining the application
under Order XLI Rule 27 of CPC does not arise and the fact that
property was allotted in the year 1978 in favour of Ningamma
and Absolute sale deed was executed in 2017, but the fact is
that already when the court has given the finding that property
belongs to Ningamma and the same cannot be re-agitated in
this second appeal in view of finding already given in earlier RA
No.94 of 2017 wherein with a specific direction remand was
made to implead the LRs and decide the same as per the
observations made by the court in RA No. 94 of 2017. Hence, I
do not find any ground to admit and frame any substantive
question of law. Accordingly, appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SS
