Karnataka High Court
Smt. B Renukamma vs Smt. B Kotramma on 6 November, 2025
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RSA No. 440 of 2019
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR SECOND APPEAL NO. 440 OF 2019 (PAR)
BETWEEN:
1. SMT. B RENUKAMMA
W/O. MAHESHAPPA,
AGED ABOUT 51 YEARS
RESIDENT OF
KENCHAMANAHALLI VILLAGE,
HADAGALI TALUK,
BELLARY DISTRICT-582 102.
2. SMT. KARIBASAMMA
W/O. SIDDAPPA,
AGED ABOUT 48 YEARS
KOLLUR VILLAGE,
BELLARY DISTRICT-583 102.
Digitally signed 3. SRI. B SIDDAPPA
by PANKAJA S
Location: HIGH S/O. SRI. VAMADEVAPPA,
COURT OF AGED ABOUT 46 YEARS
KARNATAKA RESIDENT OF KANCHIKERE VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT-583 131.
4. SMT. MALAMMA
W/O. BASAVARAJAPPA,
AGED ABOUT 44 YEARS
RESIDENT AT
YELLAPURA VILLAGE,
KURUGUDU TALUK,
BELLARY DISTRICT-583 116
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RSA No. 440 of 2019
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5. SMT. D. MANJAMMA
W/O. PRADEEP,
AGED ABOUT 42 YEARS
RESIDING AT GIRIYAPURA VILLAGE,
KADUR TALUK,
CHIKKAMAGALUR DISTRICT-577 548.
6. SMT. B NAGAMMA
W/O. THIRUPATHI,
AGED ABOUT 40 YEARS
RESIDING AT NAGALAPURA VILLAGE,
SANDOOR TALUK,
BELLARY DISTRICT-586 119.
...APPELLANTS
(BY SRI. RAVI PRAKASH V, ADVOCATE)
AND:
SMT. B KOTRAMMA
W/O. HEMANNA,
AGED ABOUT 56 YEARS
RESIDING AT KANCHIKERE VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT-583 131.
...RESPONDENT
(BY SRI. RUDRAPPA P, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 07.12.2018 PASSED IN
RA NO 7/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HARAPANAHALLI ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 16.07.2018 PASSED IN
OS NO 178/2014 ON THE FILE OF THE CIVIL JUDGE AND JMFC,
HARAPANAHALLI.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE RAJESH RAI K
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RSA No. 440 of 2019
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ORAL JUDGMENT
1. This is defendants' second appeal.
2. It is the case of the plaintiff that the suit 'B' schedule
property is the ancestral property and joint family property
of herself and defendants. Originally said property belongs
to one Bidari Kotrabasappa. After his death, his only son
Bidari Vamadevappa continued in possession. The plaintiff
and defendants are the children of said Vamadevappa.
After his death, the plaintiff and defendants continued in
possession of the suit 'B' schedule property. The katha of
the said property is still standing in the name of their
father. Things stood thus, in the first week of February,
2014, defendant No.3, who is the brother of plaintiff, tried
to obtain illegal katha in his name and to alienate the suit
schedule 'B' property in order to meet his bad vices. As
such, when the plaintiff approached him to effect partition
of suit schedule property, he declined the same. Hence,
the plaintiff filed the suit for partition and separate
possession.
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3. Defendant No.3, having contested the matter by
filing written statement, denied the plaint averments
contending that the genealogy produced by the plaintiff is
false/incorrect and she has not filed the suit in respect of
all the joint family properties. Hence, the suit is bad for
partial partition.
4. The Trial Court, after considering the rival pleadings,
framed relevant issues and after examining the evidence
in detail, dismissed the suit on the ground that the plaintiff
has failed to prove that she is a joint family member by
producing correct genealogy of her family and also she
sought partial partition of joint family properties in the
suit, which is bad under law.
5. On appeal by the plaintiff, the First Appellate Court,
upon re-appreciation of evidence, has observed that the
plaintiff is also having legitimate share in the suit 'B'
schedule property, since defendant No.3 has categorically
admitted in his evidence that himself and his six sisters
have inherited legitimate share in the suit 'B' schedule
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property. Accordingly, allowed the appeal by granting
1/11th share in the suit 'B' schedule property to the
plaintiff.
6. Aggrieved by the same, the defendants are before
this Court.
7. I have heard Sri. Ravi Prakash V, learned counsel for
the appellants/defendants and Sri. Rudrappa. P, learned
counsel for the respondent/plaintiff.
8. The primary contention of the defendants/appellants
is that the First Appellate Court has erred in allowing the
appeal by granting 1/11th share to the plaintiff in the suit
'B' schedule property solely relying on the evidence of
defendant No.3 that himself and his six sisters are having
equal right in the suit 'B' schedule property. He further
contended that the plaintiff, being well aware about the
sale of remaining joint family properties by her father, by
suppressing the said aspect filed the suit only for partial
partition, which is unsustainable under law. Further, the
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Trial Court has rightly held that the suit is also liable to be
rejected on the ground of non-joinder of necessary party.
Accordingly, he prays to allow the appeal.
9. Per contra, the learned counsel for the
plaintiff/respondent contends that the Trial Court has
totally erred while dismissing the suit solely on the ground
that the plaintiff has failed to claim partition in respect of
property bearing Sy.No.235/A(P) measuring 3 acres, in
view of her admission in the cross-examination that the
said property was allotted to the share of her father.
According to the learned counsel, the plaintiff got married
25 years prior to the date of filing of the suit and
defendant No.3, being her brother was residing along with
her father. As such, she was unaware about the sale of
remaining joint family properties by her father. Hence, she
filed the partition in respect of the available land i.e. the
suit 'B' schedule property. In such circumstance, the suit
cannot be dismissed on that ground and also for non-
joinder of necessary party i.e. her elder brother one
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Basavaraja, who had gone in adoption. As such, the First
Appellate Court has rightly allowed the appeal and decreed
the suit. Accordingly, he prays to dismiss the appeal.
10. I have given my anxious consideration to the
contentions of learned counsel for both the parties, so also
to the impugned judgments and decrees passed by both
the Courts.
11. This Court while admitting this appeal, has framed
the following substantial questions of law:
i) Whether the First Appellate Court
committed an error in not noticing that the
suit filed by the plaintiff for partial partition,
was not maintainable?
ii) Whether the First Appellate Court was
justified in decreeing the suit for partition
and declaring that the plaintiff is entitled to
1/11th share in the suit 'B' schedule
property?
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12. As could be gathered from records, the suit 'B'
schedule property originally belongs to one late Bidari
Kotrabasappa. After his death, father of plaintiff and
defendants one Vamadevappa was put in possession of the
said property. The katha of the property is still standing in
the name of said Vamadevappa and he died instate
leaving behind the plaintiff and defendants. Hence, it is
undisputed that the suit 'B' schedule property is the
ancestral property of the plaintiff and the defendants.
13. The plaintiff has filed the present suit for partition
and separate possession with respect of suit 'B' schedule
property, which was opposed by contesting defendant
No.3 on the ground that the suit filed by the plaintiff is not
maintainable on two counts i.e. the suit is bad for non-
joinder of necessary party i.e. the elder brother of plaintiff
and defendants one Basavaraja, who had gone in adoption
and that the suit has been filed only for partial partition in
respect of suit 'B' schedule property leaving the property
bearing Sy.No.235/A(P).
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14. The Trial Court has dismissed the suit mainly on the
ground that the plaintiff has failed to include the remaining
joint family properties, despite knowing fully the said
aspect. On perusal of the evidence on record, it can be
seen, the plaintiff was given in marriage approximately 25
years prior to filing of the suit. According to her, her father
was residing along with defendant No.3 and as such, she
was unaware of the sale transaction in respect of property
bearing Sy.No.235/A(P). Though she admitted in her
cross-examination that she was aware about the said sale
transaction, she stated that she was unable to secure the
details of the same. Admittedly, the property bearing
Sy.No.235/A(P) was sold by the father of plaintiff and
defendants prior to 20 years from the date of filing the suit
and that the defendants also failed to provide any
information in respect of the said sale transaction, despite
knowing fully about the same. Further, the defendants
also not made any application to include the said property
in the suit. Since the plaintiff got married 25 years prior to
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the date of filing of the suit, obviously she could not have
the knowledge of the said sale transaction. As such, she
filed the suit in respect of the available land i.e. suit 'B'
schedule property. In such circumstance, the stray
admission of the plaintiff in the cross-examination that she
was aware of the earlier sale transaction in respect of
other joint family properties itself cannot be take away her
right to claim partition in the suit 'B' schedule property.
15. The Trial Court has also erred by holding that the suit
is bad for non-joinder of necessary party i.e. the elder
brother of the plaintiff and defendants for the reason that
it is admitted by defendant No.3 himself that his elder
brother Basavaraja had been given in adoption.
16. Primarily the admission of defendant No.3 that there
was no partition between himself and six sisters after the
demise of his father in respect of ancestral and joint family
properties itself establishes that the plaintiff is entitled for
her legal share in the suit 'B' schedule property. This
aspect of the matter has been rightly dealt by the First
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Appellate Court. In that view of the matter, I answer the
above raised first substantial question of law in the
"negative" and the second substantial question of law in
the "affirmative". Accordingly, the appeal is dismissed.
SD/-
(RAJESH RAI K)
JUDGE
PKS
