[Cites 3, Cited by 0]
Karnataka High Court
Subbamma vs Smt. Bhagavathamma on 6 April, 2026
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RSA No. 1854 of 2013
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 1854 OF 2013 (PAR)
BETWEEN:
SUBBAMMA
W/O CHINNAPPA,
AGED ABOUT 47 YEARS,
BATLAHALLI VILAGE,
MUNGANAHALLI HOBLI,
CHINTAMANI TALUK,
CHICKBALLAPUR DISTRICT - 563 125.
APPELLANT
(BY SRI. S.A. SUDHINDRA, ADVOCATE)
AND:
1. SMT. BHAGAVATHAMMA
W/O SEENAPPA,
Digitally AGED ABOUT 67 YEARS,
signed by
CHAYA S A
Location: 2. SMT. VENKATALAKSHMAMMA
HIGH W/O HANUMANTHU,
COURT OF AGED ABOUT 52 YEARS,
KARNATAKA
3. KRISHNAPPA
S/O SEENAPPA,
AGED ABOUT 42 YEARS,
RESPONDENT NOS.1 TO 3
RESIDING AT BATLAHALLI VILLAGE,
MUNGANAHALLI HOBLI,
CHINTAMANI TALUK,
CHICKBALLAPUR DISTRICT - 563 125.
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RSA No. 1854 of 2013
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4. M. VENKATARAVANAPPA
S/O LATE MADDIREDDY,
AGED ABOUT 72 YEARS,
5. N. SRINIVASA
S/O NARAYANAPPA,
AGED ABOUT 57 YEARS,
6. BHARATHI
W/O PRASAD P.S.
AGED ABOUT 42 YEARS,
RESIDING AT
SOMUKALAHALLI VILLAGE,
MUNGANAHALLI HOBLI,
CHINTAMANI TALUK,
CHICKBALLAPUR DISTRICT - 563 125.
...RESPONDENTS
(BY SRI. IMRAN PASHA, ADVOCATE FOR R3;
R1, R2, R4, R5 AND R6 - SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
16.04.2013 PASSED IN R.A.NO.32/2010 ON THE FILE OF
SENIOR CIVIL JUDGE AND JMFC, CHINTHAMANI AND
CONFIRMING THE JUDGEMENT AND DECREE PASSED BY THE
ADDITIONAL CIVIL JUDGE (JR.DN.) AND JMFC, CHINTAMANI,
IN O.S.NO.101/2006 DATED 22.07.2010 AND DECREE THE
SUIT.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 1854 of 2013
HC-KAR
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
In this Regular Second Appeal, the appellant is
assailing the judgment and decree dated 16.04.2013 in
R.A.No.32/2010 on the file of the Senior Civil Judge and
JMFC, Chintamani (hereinafter termed as 'First Appellate
Court'), allowing the appeal and setting aside the
judgment and decree dated 22.07.2010 in
O.S.No.101/2006 on the file of the Additional Civil Judge
(Junior Division) and JMFC, Chintamani (hereinafter
termed as 'Trial Court'), decreeing the suit of the plaintiff.
2. For the sake of convenience, parties are
referred to as per their ranking before the Trial Court.
3. The relevant facts for adjudication of this
appeal are that, the defendant No.1 is the mother of
plaintiff and defendant Nos.2 and 3. It is stated that the
defendant No.1 is the adopted daughter of deceased
Thimmakka. It is also stated that the suit schedule
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properties are the joint family properties of plaintiff and
defendant Nos.1 to 3 and that the deceased Thimmakka
had executed a registered Settlement Deed dated
03.06.1959 in favour of defendant No.1. It is the
contention that the said deceased Thimmakka had no right
to execute the alleged Settlement Deed and the suit
schedule properties are the joint family properties of the
plaintiff and defendant Nos.1 to 3 and as such the plaintiff
is entitled for her share in the suit schedule properties.
Accordingly, the plaintiff has filed O.S.No.101/2006
seeking relief of partition and separate possession in
respect of the suit schedule properties.
4. After service of notice, the defendants entered
appearance and defendant Nos.1 and 2 have filed a memo
stating that they have no objection to allot the share in
favour of the plaintiff. Defendant Nos.4 to 6 were
subsequently impleaded in the suit. The suit is contested
by defendant No.3 alleging that, the deceased Thimmakka
had adopted the defendant No.1 and she had acquired the
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suit schedule properties through her own income. It is also
stated that the said deceased Thimmakka had executed
the registered Will dated 13.06.1972 in favour of the
defendant No.3 and thereafter the Khatha of the suit
schedule properties have been mutated in favour of the
defendant No.3 and therefore, the defendant No.3 has
sought for dismissal of the suit.
5. Based on the pleadings on record, the Trial
Court has formulated the issues for its consideration. In
order to establish their case, the plaintiff herself was
examined as P.W.1 and got marked nine (9) documents as
Ex.P1 to Ex.P9. Defendant No.3 was examined as D.W.1
and got marked twenty three (23) documents as Ex.D1 to
Ex.D23.
6. The Trial Court after considering the material on
record by its judgment and decree dated 22.07.2010,
decreed the suit holding that the plaintiff is entitled for
¼ share in the suit schedule properties. Feeling aggrieved
by the judgment and decree passed by the Trial Court, the
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defendant No.3 has preferred R.A.No.32/2010 on the file
of the First Appellate Court. The said appeal was contested
by the respondents therein. The First Appellate Court after
re-considering the material on record by its judgment and
decree dated 16.04.2013 allowed the appeal and
consequently, set aside the judgment and decree passed
by the Trial Court in O.S.No.101/2006. Feeling aggrieved
by the same, the plaintiff has preferred this appeal.
7. This Court vide order dated 14.02.2020 has
formulated the following substantial questions of law:
"(i) Whether the Trial Court and the First
Appellate court failed to consider that Ex.D1 was
unilateral cancellation of a settlement deed
executed by Smt.Thimmakka in favour of the
defendant No.1, was the defendant No.1 not
entitled to challenge the execution of the Will-
Ex.D2?
(ii) Whether Section 90 of the Indian Evidence
Act is applicable to a Will so as to dispense the
proof of its execution?
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(iii) Whether the plaintiff would file a suit for
partition and separate possession of her share in
the suit property during the life time of the
defendant No.1?"
8. Heard Sri. S.A. Sudhindra, learned counsel
appearing for the appellant and Sri. Imran Pasha, learned
counsel appearing for the respondent No.3.
9. Sri. S.A. Sudhindra, learned counsel appearing
for the appellant/plaintiff contended that, the First
Appellate Court has committed an error in coming to a
conclusion by interfering with the judgment and decree
passed by the Trial Court. It is also argued by the learned
counsel appearing for the appellant/plaintiff that the
defendant No.3 has not proved the registered Will dated
13.06.1972 and therefore, the First Appellate Court has
committed an error in interfering with the share of the
plaintiff in the suit schedule properties. It is also argued by
the learned counsel appearing for the appellant/plaintiff
that the defendant No.1 is the adopted daughter of
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deceased Thimmakka and further, the plaintiff, defendant
Nos.2 and 3 are the children of defendant No.1, and
therefore, in view of the cancellation of the registered
Settlement Deed made in favour of defendant No.1 as per
Ex.D1, and therefore it is contended that, the judgment
and decree passed by the Trial Court requires to be
confirmed in this appeal.
10. Per contra, Sri. Imran Pasha, learned counsel
appearing for the respondent No.3 sought to justify the
impugned judgment and decree passed by the First
Appellate Court. It is further contended by the learned
counsel appearing for the respondent No.3 that as the
defendant No.1 is alive, she is the absolute owner of the
suit schedule properties and therefore, the suit itself is not
maintainable. Accordingly sought for dismissal of the
appeal.
11. In the light of the submissions made by the
learned counsel appearing for the parties, it is not in
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dispute as to the relationship between the parties and the
Genealogy of the parties reads as under:
ಸುಬ ಾಯಪ -(ಫವ )
ಮ ಕ -(ಫವ )
!
ಭಗವತಮ ( ಾಕುಮಗಳ ) 70 ವಷ
ೕನಪ -(ಫವ )
!
! ! !
ೆಂಕಟಲ"#ಮ -53ವಷ ಕೃಷ%ಪ -52ವಷ ಸುಬ ಮ -50ವಷ
ಹನುಮಂತು-60ವಷ ಸರಸ(ತಮ -40ವಷ )ನ*ಪ -55ವಷ
12. Perusal of the Genealogy would indicate that,
one deceased Thimmakka - Propositus, is the wife of late
Subbarayappa. The said deceased Thimmakka had
adopted the defendant No.1. The defendant No.1 had
three (3) children i.e., the plaintiff, defendant Nos.2 and 3.
Perusal of the Ex.P1 and Ex.D1 would makes it clear that,
the suit schedule properties belong to deceased
Thimmakka and it is also to be noted that the defendant
No.1 was adopted by the deceased Thimmakka. Perusal of
the Ex.P1 would indicate that, the deceased Thimmakka
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had executed the Settlement Deed in favour of her
adopted daughter - defendant No.1 on 03.06.1959. It is
also to be noted that the recitals in the document would
indicate that, the deceased Thimmakka had released her
rights in respect of the suit schedule properties in favour
of the defendant No.1. It is further noted that the said
Settlement Deed dated 03.06.1959 (Ex.P1) came to be
cancelled by the deceased Thimmakka by way of the
registered Cancellation Deed dated 13.06.1972 and
thereafter the deceased Thimmakka had executed the
registered Will dated 13.06.1972 (Ex.D2).
13. The Trial Court after considering the material on
record, by taking into consideration, the fact that the suit
schedule properties were absolutely belonging to the
deceased Thimmakka, answered the issue No.1 in favour
of the plaintiff holding that the suit schedule properties are
the joint family properties of the plaintiff and defendants.
The said aspect was interfered with by the First Appellate
Court in its judgment and decree dated 16.04.2013.
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14. Taking into consideration the fact that the
defendant No.1 is the adopted daughter of the deceased
Thimmakka and irrespective of the fact that the said
deceased Thimmakka had executed the registered Will
dated 13.06.1972 in favour of the defendant No.3, as the
defendant No.3 has to prove the said Will dated
13.06.1972, and further, since the defendant No.1 is alive,
after the demise of the deceased Thimmakka, the property
shall devolve to the defendant No.1.
15. In that view of the matter, the suit schedule
properties are the absolute properties of the defendant
No.1 by virtue of Section 14 of the Hindu Succession Act.
16. Taking into consideration the fact that the
deceased Thimmakka had executed the registered Will
dated 13.06.1972, it is open for the defendant No.3 to
prove the aforementioned Will in a manner known to law
under the said circumstances. Therefore, if the schedule
property is belonged to defendant No.1 and as, she alive
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as such, the said property is her absolute property, the
plaintiff will not get share in the property.
17. In that view of the matter, I am of the opinion
that, the plaintiff cannot maintain a suit seeking relief of
partition and separate possession in the lifetime of her
mother-Defendant No.1. In that view of the matter, the
suit itself is not maintainable seeking partition and
separate possession in respect of the suit schedule
properties, in the lifetime of the defendant No.1.
Particularly, the substantial question of law No.3 favours
the defendants when the suit itself is not maintainable.
Accordingly, I pass the following:
ORDER
i) The Regular Second Appeal is dismissed.
ii) The judgment and decree passed by the
First Appellate Court in R.A.No.32/2010 on
the file of the Senior Civil Judge and JMFC,
Chintamani is hereby confirmed.
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iii) The judgment and decree passed by the
Trial Court in O.S.No.101/2006 on the file
of the Additional Civil Judge (Junior
Division) and JMFC, Chintamani is
accordingly set aside.
iv) The suit of the plaintiff in O.S.No.101/2006
is dismissed.
Sd/-
(E.S.INDIRESH)
JUDGE
KLV
List No.: 2 Sl No.: 61
