Karnataka High Court
Nagesh vs Manjula on 29 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:43278
RSA No. 289 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.289 OF 2024 (PAR)
BETWEEN:
1. NAGESH
S/O LATE B GANGADHARAGOWDA,
AGED ABOUT 53 YEARS,
2. LAXMIDEVI
W/O NAGESH,
AGED ABOUT 44 YEARS,
APPELLANT No.1 AND 2
R/O CHIKKAMATHIGHATTA VILLAGE,
DANDIGANAHALLI HOBLI-573225
Digitally signed CHANNARAYAPATNA TALUK
by DEVIKA M
Location: HIGH
COURT OF ...APPELLANTS
KARNATAKA (BY SRI SRINIVAS V, ADVOCATE)
AND:
1. MANJULA
W/O MALLESH GOWDA,
AGED ABOUT 55 YEARS,
R/O D. SATHENAHALLI VILLAGE,
KALKERE POST,
CHANNARAYAPATNA TLAUK-573126
-2-
NC: 2025:KHC:43278
RSA No. 289 of 2024
HC-KAR
2. SAROJA
W/O YOGESH,
AGED ABOUT 51 YEARS,
R/O NO.327/1,
7TH MAIN,
BAPUJINAGARA,
MYSURU ROAD,
BANGALORE-560038
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 10.08.2023
PASSED IN R.A.NO.44/2022 ON THE FILE OF THE IV
ADDITIONAL DISTRICT AND SESSIONS JUDGE HASSAN,
SITTING AT CHANNARAYAPATNA AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
-3-
NC: 2025:KHC:43278
RSA No. 289 of 2024
HC-KAR
ORAL JUDGMENT
This second appeal is filed challenging the judgment
and decree dated 10.08.2023 passed in R.A.No.44/2022
on the file of IV Additional District and Sessions Judge,
Hassan.
2. This matter is listed for admission. Heard the
learned counsel appearing for the appellant.
3. The Trial Court granted the relief of partition
allotting 1/4th share each in the 'A' schedule properties and
1/3rd share each in Item No.1 to 13 and 15 to 17 of 'B'
schedule properties in favour of plaintiffs and defendant
No.1 and also granted 1/3rd share each in 'C' schedule
property in favour of plaintiffs and defendant No.1 and
also granted 1/4th share of deceased Gangadharagowda in
respect of 'A' schedule properties in favour of defendant
Nos.1 and 2. The said judgment and decree of the Trial
Court was challenged by defendant Nos.1 and 2 before the
First Appellate Court. Defendant Nos.1 and 2 i.e., the
NC: 2025:KHC:43278
HC-KAR
husband and wife took the contention before the First
Appellate Court with regard to granting of 1/4th share is
erroneous since there was a gift deed executed by the
father in favour of defendant No.1. The First Appellate
Court having considered the grounds which have been
urged, formulated the points that whether the suit
schedule properties are the family properties of the
plaintiffs and defendants and whether the defendants
proved that some properties have been purchased by
Gangadharagowda and Anasuyamma from the self income
of Gangadharagowda and whether the defendants proved
that since Gangadharagowda purchased the properties
from his self income, the gift deeds executed by
Gangadharagowda are valid and whether the judgment
and decree of the Trial Court requires interference of this
Court.
4. The First Appellate Court also taken note of the
grounds which have been urged by the appellants that
properties have purchased in the name of the mother out
NC: 2025:KHC:43278
HC-KAR
of the self-income of the father and First Appellate Court
having considered the points for consideration answered
Point No.1 as affirmative holding that the suit schedule
properties are the family properties of the plaintiffs and
the defendants and answered the Point Nos.2 and 3 as
negative in coming to the conclusion that in order to
substantiate the contention of the defendants that
property was purchased from the income of the father
Gangadharagowda, nothing is placed on record and comes
to the conclusion that in the absence of any cogent
evidence before the Court, the Court cannot comes to a
such a conclusion. The First Appellate Court also taken
note of the fact that Trial Court granted the relief of 1/4th
share each to the plaintiffs in 'A' schedule properties and
1/3rd share in Item Nos.1 to 13 and 15 to 17 of 'B'
schedule properties and 1/3rd share in 'C' schedule
properties. The First Appellate Court also considered the
fact that the property is a joint family property and while
answering Point No.1, modified the judgment of the Trial
NC: 2025:KHC:43278
HC-KAR
Court in coming to the conclusion that admittedly the
plaintiffs and defendant No.1 are the coparceners. Now
except the plaintiffs and defendant No.1, there are no
other survivors in the family. Admittedly, parents of the
plaintiffs and defendant No.1 are no more. As per the
findings recorded above, all the properties are joint family
properties of the plaintiffs and defendant No.1. The
judgment and decree further indicates that the Trial Court
also granted share to defendant No.2 also and so far as
granting share in respect of defendant No.1 is concerned,
there is no dispute. So far as granting share to defendant
No.2 is absolutely wrong as defendant No.2 is not the
coparcener. Defendant No.2 is the wife of defendant No.1
and daughter-in-law of Gangadharagowda and
Anasuyamma. Therefore, question of granting the share to
defendant No.2 does not arise at all. The First Appellate
Court further observed that the plaintiffs have not filed
any cross appeal either for correction of decree nor
challenged the share granted to defendant No.2. In a suit
NC: 2025:KHC:43278
HC-KAR
for partition, all the parties are plaintiffs and defendants.
The Court has to look into the said aspect and grant
decree in accordance with law. Having taken note of the
said fact into consideration, the First Appellate Court
modified the judgment and decree of the Trial Court and
granted equal share to plaintiff Nos.1 and 2 as well as
defendant No.1 in respect of the suit settle properties is
concerned. Hence, the second appeal is filed before this
Court.
5. The learned counsel appearing for the
appellants would vehemently contend that the First
Appellate Court committed an error in modifying the
judgment of the Trial Court and hence, this Court has to
frame the substantive question of law that there is no any
cross appeal filed by the respondents/plaintiffs without
invoking the provisions of Order XLI Rule 33 of CPC, ought
not to have modified the same and also counsel would
vehemently contend that this Court has to frame
substantive question of law that the First Appellate Court
NC: 2025:KHC:43278
HC-KAR
was not justified in granting equal share to the plaintiffs
and defendant No.1 by ignoring the gift deed without
adverting to Section 30 of the Hindu Succession Act.
6. Heard the learned counsel appearing for the
appellants and also considered the material on record and
also the reasons assigned by the Trial Court as well as the
First Appellate Court. Having perused the operative portion
of the judgment of the Trial Court, it discloses that the
Trial Court granted the relief in favour of the plaintiffs as
1/4th share in respect of 'A' schedule properties and 1/3rd
share each in respect of Item Nos.1 to 13 and 15 to 17 of
'B' schedule properties and it is also made clear that
plaintiffs and defendant No.1 is entitled for 1/3rd share
each in 'C' schedule property and further defendant No.1 is
entitled for 1/4th share in 'A' schedule properties and 1/3rd
share in Item Nos.1 to 13 and 15 to 17 in respect of 'B'
schedule properties as similarly entitled for the plaintiffs
and further directed that defendant No.1 and 2 are entitled
for 1/4th share of deceased Gangadharagowda in respect
NC: 2025:KHC:43278
HC-KAR
of 'A' schedule properties and the First Appellate Court
modified the judgment of the Trial Court and in paragraph
60 rightly comes to the conclusion that there are three
coparceners and plaintiffs' father and mother are no more
and suit is also filed after the death of their father and
mother and the suit is inter se between the plaintiffs and
defendant Nos.1 as they are the sisters and the brother
and there is no dispute with regard to the relationship
between the parties. The fact is that property belongs to
their family is not in dispute.
7. The main contention of counsel appearing for
the appellants that the father of appellant No.1 had
executed a gift deed and the Court comes to the
conclusion that father had no right to execute a gift deed
in respect of the property of the mother as he was not
having any absolute right. The counsel would vehemently
contend that when the father is also having a right in
respect of the property of the mother is concerned, the
Court can invoke Section 30 of the Hindu Succession Act.
- 10 -
NC: 2025:KHC:43278
HC-KAR
The learned counsel would vehemently contend that the
same has not been considered by the Trial Court and also
the First Appellate Court while granting the relief. First of
all, the father had no right to execute any gift deed in
respect of the property of the mother is concerned. When
the father was not having any right over the property of
the mother, the question of executing a gift deed in favour
of the son does not arise and the said fact was taken note
of by the First Appellate Court while modifying the
judgment of the Trial Court. When the Court comes to the
conclusion that property belongs to the joint family, the
succession only among the members of the joint family
that is coparceners i.e., plaintiffs and defendant No.1,
hence, the reasoning given by the First Appellate Court in
paragraph 64 is not erroneous. Hence, I do not find any
ground to admit and frame any substantive questions of
law since the appellants also not disputes the fact that the
plaintiffs along with defendant No.1 are the coparceners
and defendant No.2 who is the wife of defendant No.1
- 11 -
NC: 2025:KHC:43278
HC-KAR
would not get any right in any of the property, thus,
granting of share in favour of defendant No.2 is not
correct, hence, the operative portion of the Trial Court is
erroneous. Thus, the observation made by the First
Appellate Court is in accordance with law. Hence, no
ground is made out to admit the appeal and to frame any
substantive questions of law.
8. In view of the discussions made above, I pass
the following:
ORDER
The second appeal is dismissed.
In view of dismissal of the main appeal, I.A. if
any, does not survive for consideration and the same
stands dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN
