SMT.BHAVANI W/O TIMMAGOUDA, vs MOHAMMED FAJAL SAYYED ADAM,

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RSA No. 5808 of 2012
C/W RSA No. 5955 of 2012

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IN THE HIGH COURT OF KARNATAKA
AT DHARWAD

ND
DATED THIS THE 22 DAY OF SEPTEMBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE M.G.S. KAMAL

REGULAR SECOND APPEAL NO.5808 OF 2012
C/W
REGULAR SECOND APPEAL NO.5955 OF 2012

IN RSA NO. 5808/2012:

BETWEEN:

SMT. BHAVANI
W/O TIMMAGOUDA,
AGE 51 YEARS,
OCC. HOUSEHOLD WORK,
R/O. HATTIKERI OF MURUR VILLAGE,
PRESENTLY R/AT: JEDDIKERI KASABA,
TQ. HONNAVAR,
DIST. UTTARA KANNADA-581324.
...APPELLANT

(BY SRI. SANGRAM S. KULKARNI, ADVOCATE)

AND:

1. MOHAMMED FAJAL SAYYED ADAM,
AGE: MAJOR,
OCC: RAITA AND BUSINESS,
R/O: KUMTA 581 343,
DIST: UTTARA KANNADA.

2. ABDUL KARIM ISMAIL KHAZI
SINCE DECEASED BY HIS LR S.,

2A) SMT. RAZIA ABDUL KARIM KHAJI,
AGE: 61 YEARS,
OCC: HOUSEHOLD,
R/O: MUSLIM GALLI,
Digitally
signed by
SAROJA
HANGARAKI
Location:
high court of
karnataka,
dharwad
bench

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KUMTA - 581 343,
DIST: UTTARA KANNADA.

3. SADATALI MOHAMMAD YUSUF MULLA A,
AGE: MAJOR,
OCC: RAITA AND BUSINESS,
R/O: KUMTA 581 343,
DIST: UTTARA KANNADA.

4. MOHAMMAD
JAMID MOHAMMAD YUSUF MULLA,
AGE: MAJOR,
OCC: RAITA AND BUSINESS,
R/O: KUMTA 581 343,
DIST: UTTARA KANNADA.

5. MADHAV @ MAHADEV BALINDRAGOUDA
SINCE DECEASED BY HIS LR S.,

5A. SMT. MANGALA
W/O MADHAV @ MAHADEVGOUDA,
AGE: 53 YEARS,
OCC: AGRICULTURIST AND HOUSEHOLD,
R/O: KALASANKA, CHITTARAGI,
TQ: KUMTA - 581 343,
DIST:UTTARA KANNADA.

5B. VEENA
D/O MADHAV @ MAHADEVGOUDA,
AGE: 29 YEARS,
OCC: AGRICULTURIST AND HOUSEHOLD,
R/O: KALASANKA, CHITTARAGI,
TQ: KUMTA - 581 343,
DIST:UTTARA KANNADA.

5C. SARITA
D/O MADHAV @ MAHADEVGOUDA,
AGE: 29 YEARS,
OCC: AGRICULTURIST AND HOUSEHOLD,
R/O: KALASANKA, CHITTARAGI,
TQ: KUMTA - 581 343,
DIST: UTTARA KANNADA

5D. NAGARAJ

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S/O MADHAV @ MAHADEVGOUDA,
AGE: 27 YEARS, OCC: STUDENT,
R/O: KALASANKA, CHITTARAGI,
TQ: KUMTA - 581 343,
DIST: UTTARA KANNADA

5E. ARCHANA
D/O MADHAV @ MAHADEVGOUDA,
AGE: 26 YEARS, OCC: STUDENT,
R/O: KALASANKA, CHITTARAGI,
TQ: KUMTA - 581 343,
DIST:UTTARA KANNADA

6. NAVEEN
S/O MANKALI MASAKAL,
AGE: 27 YEARS,
OCC: RAITA AND STUDENT,
R/O: CHITTARAGI, TQ: KUMTA- 581 343,
DIST:UTTARA KANNADA
...RESPONDENTS
(BY SRI. H.R. DESHPANDE, ADVOCATE FOR R1, R3, R4 AND R6;
SRI. J.S. SHETTY, ADVOCATE FOR R5(A) AND R5(B);
NOTICE TO R2(A), R5(C), R5(D), R5(E) ARE SERVED)

THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.
NO.198/2006 AND R.A. NO.200/2006 PASSED BY THE SENIOR
CIVIL JUDGE KUMTA DATED 31.01.2012 MODIFYING THE
JUDGMENT AND DECREE PASSED IN O.S. NO.83/1992 PASSED
BY THE PRL. CIVIL JUDGE (JR.DN) KUMTA DATED 31.08.2004, IN
THE INTEREST OF JUSTICE AND EQUITY AND ETC.
IN RSA NO.5955/2012:

BETWEEN:

SMT. BHAVANI
W/O TIMMAGOUDA,
AGE ABOUT 51 YEARS,
OCC. HOUSEHOLD WORK,
R/O. HATTIKERI OF MARUR VILLAGE,

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PRESENTLY RESIDING AT JEDDIKERI KASABA,
TQ. HONNAVAR,
DIST. UTTAR KANNADA-581334.
...APPELLANT
(BY SRI. SANGRAM S. KULKARNI, ADVOCATE)

AND:

1. SMT. MANGALA
W/O MADHAV @ MAHADEVGOUDA,
AGE ABOUT 51 YEARS,
OCC HOUSEHOLD,
R/O KALASANKA, TQ KUMATA,
DIST UTTARA KANNADA.
2. SARITA
D/O MADAV @ MAHADEVGOUDA,
AGE: 25 YEARS, OCC: HOUSEHOLD,
R/O: KALASANKA, TQ: KUMTA,
DIST: UTTARA KANNADA-581343.

3. VEENA
D/O MADHAV @ MAHADEVGOUDA,
AGE: 33 YEARS, OCC: STUDENT,
R/O: KALASANKA, TQ: KUMTA,
DIST: UTTARA KANNADA-581343.

4. NAGARAJ
S/O MADHAV @ MAHADEVGOUDA,
AGE: 31 YEARS, OCC: STUDENT,
R/O: KALASANKA,
TQ: KUMTA,
DIST: UTTARA KANNADA-581343.
5. ARCHANA D/O MADHAV @ MAHADEVGOUDA,
AGE: 31 YEARS, OCC: STUDENT,
R/O: KALASANKA, TQ: KUMTA,
DIST: UTTARA KANNADA-581343.

6. MADHAV YANE MAHADEVGOUDA
S/O BALINDRAGOUDA,
AGE:29 YEARS, OCC: AGRICULTURIST,
R/O: KALASANKA,
TQ: KUMTA, DIST: UTTARA KANNADA.

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7. MOHAMMED FAJAL SAYYED ADAM,
AGE: 33 YEARS, OCC: BUSINESS,
R/O: KUMTA,TQ: KUMTA,
DIST: UTTARA KANNADA-581343.

8. ABDUL KARIM ISMAIL KHAZI,
SINCE DECEASED BY HIS LR

SMT. RAZIA ABDUL KARIM KHAJI,
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O: MUSLIM GALLI, KUMTA,
DIST: UTTAR KANNADA-581343.

9. SADATALI MOHAMMED YUSUF MULLA A,
AGE: 51 YEARS, OCC: BUSINESS,
R/O: KUMTA TOWN, TQ: KUMATA,
DIST: UTTARA KANNADA-581343.

10. MOHAMMAD JAMIR MOHAMMAD YUSUF,
AGE: 60 YEARS, OCC: BUSINESS,
R/O: KUMTA TOWN, TQ: KUMATA,
DIST: UTTARA KANNADA-581343.

11. NAVEEN S/O MANKALI MASAKAL,
AGE: ABOUT 55 YEARS, OCC: EMPLOYEE,
R/O: CHITTARAGI, TQ: KUMATA,
DIST: UTTARA KANNADA-581343.
...RESPONDENTS
(BY SRI. H.R. DESHPANDE, ADVOCATE FOR R7 TO R11;
SRI. J.S. SHETTY, ADVOCATE FOR R1 TO R5;
R6 DECEASED, R1 TO R5 ARE LRS OF DECEASED R6)

THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING
TO SET ASIDE THE JUDGMENT & DECREE DATED: 29.02.2012
PASSED IN R.A.NO.89/2007 ON THE FILE OF THE SENIOR CIVIL
JUDGE, KUMTA, DISPOSED THE APPEAL, FILED AGAINST THE
JUDGMENT DATED 29.08.2007 AND THE DECREE PASSED IN O.S.
NO.76/2001 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN.)
KUMTA, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.
THESE REGULAR SECOND APPEALS COMING ON FOR
ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:

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CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

ORAL JUDGMENT

1. These two regular second appeals are filed by the
appellant Bhavani who is plaintiff in O.S.No.83/1992 and
defendant No.2 in O.S.No.76/2001.

2. Parties are referred to as per their ranks before the Trial
Court for the purpose of convenience.
Facts involved in RSA No.5808/2012 are as under:

3. The suit in O.S.No.83/1992 is filed by the Bhavani-
plaintiff seeking relief of partition and separate
possession of the suit schedule properties against her
brother Mahadev-defendant No.1 her mother Masti-
defendant No.2.

4. It is contended that the father of the plaintiff and
defendant No.1 and husband of defendant No.2 is one
Balindra Gouda, who passed away intestate on
21.08.1981. Suit schedule properties belonged to said
Balindra Gouda. That upon his demise, plaintiff and

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defendant No.1 being daughter and son and defendant
rd
No.2 being the wife became entitled for one third (1/3 )
share each in the suit schedule properties. Defendant
No.1 was addicted to bad vices. Request of the plaintiff
for division of the properties was rejected. Accordingly
suit was filed.

5. Defendant No.1 filed a written statement denying one
rd
third (1/3 ) share of the plaintiff. It is contented that the
suit schedule properties belonged to joint family of
Balindra Jattu Gouda, Kuppu Jattu Gouda and Iru Jattu
Gouda being brothers and each of them had one third
rd
(1/3 ) share in the suit schedule properties.

6. That Iru Jattu Gouda had executed a will dated
rd
09.07.1985 bequeathing his one third (1/3 ) share in the
suit schedule properties in favour of defendant No.1 and
Kuppu Jattu Gouda. As such, defendant No.1 and Kuppu
rd
Jattu Gouda became entitled one third (1/3 ) share of Iru
Jattu Gouda in addition to their respective one third
rd
(1/3 ) share.

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7. Smt.Gouri who is the wife of Iru Jattu Gouda had
rd
relinquished her right in respect of one third (1/3 ) share
of Iru Jattu Gouda in favour of defendant No.1 and Kuppu
Jattu Gouda. That on 09.03.1989, defendant No.1 and
Kuppu Jattu Gouda had partitioned the suit schedule
properties by way of registered partition deed. As such,
defendant No.1 has acquired the suit schedule properties
as ancestral properties. As such, the plaintiff is entitled to
share only out of the share allocable to Balindra Jattu
th
Gouda, who was having one ninth (1/9 ) share in the suit
schedule properties, in which plaintiff is entitled for one
rd
third (1/3 ) share, contending as above sought for
dismissal of the suit.

8. Defendant Nos.3 to 7, who are for the purchasers of
certain portion of the suit schedule property from
defendant No.1 have also sought for dismissal of suit. It
is contended that at the time of alienation, defendant
No.1 had not given information regarding the suit
schedule properties and the encumbrance. That they are
the bona fide purchasers for value. That only after

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purchase, defendant Nos.3 to 7 came to know about the
alienation. Hence, sought for dismissal of the suit.

9. The Trial Court framed the following issues.
“1) Whether the defendant 1 proves that Iru Jattu
Gouda has executed a valid will dated
rd
9-7-1985 bequeathing his 1/3 share in the
Joint Family property in his favour and in favour
of Kuppa Jattu Gouda?

2) Whether the defendant 1 proves that
Smt. Gouri has relinquished her right in the
Joint Family property in favour of defendant 1
and Kuppa Jattu Gouda?

3) To what share the plaintiff is entitled in the suit
property?

4) Whether the defendant Nos.3 to 6 prove that
they are the bonafide purchasers of the
property stated in para 2 of the written
statement for value without notice of the
present litigation which is between the plaintiff
and the defendant No.1?

5) Whether the defendant No.7 proves that he is
the bonafide purchaser of the property bearing
Sy.No.18:2B to extent of 0-6-0 without notice
of the present litigation?

6) Whether the defendant Nos.3 to 7 proves that
the defendant No.1 has sold the properties in
their favour for the legal necessity?

7) What Order / Decree?”

10. During the pendency of the trial, mother of plaintiff and
defendant No.1 i.e., defendant No.2 passed away. On

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appreciation of evidence, the Trial Court decreed the suit
holding that the plaintiff, Bhavani being entitled for one
half (1/2) share in the suit schedule properties. Being
aggrieved by the said judgment and decree, defendant
Nos. 3 to 6 preferred regular appeal in R.A.No.198/2006
and defendant No.7 filed regular appeal in
R.A.No.200/2006.

11. The First Appellate Court framed the following common
points for its consideration in said RA Nos.198 & 200
2006.
1. “Whether the finding of the Trial Court that the
defendant no.1 has failed to prove that Iru Jattu
Gouda has executed a Will dated 9-7-1985
rd
bequeathing his 1/3 share in the joint family
property in his favour and in favour of Kuppa
Jattu Gouda is contrary to the facts and
circumstances of the case and the evidence on
record and against the principles of law and calls
for interference by this Court?

2. Whether the finding of the Trial Court that Smt.
Gouri has relinquished her right in the joint
family property in favour of the defendant no.1
and Kuppa Jattu Gouda is contrary to the facts
and circumstances of the case and the evidence
on record and against the principles of law and
calls for interference by this Court?

3. Whether the finding of the Trial Court that the
plaintiff and the defendant no.1 are entitled for
½ share in the suit schedule properties is
contrary to the facts and circumstances of the

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case and the evidence on record and against the
principles of law and calls for interference by this
Court?

4. Whether the finding of the Trial Court that the
defendant nos.3 to 7 are not the bonafide
purchasers of the properties purchased by them
and that they have failed to prove that the
property sold to them by defendant no.1 is for
legal necessity is contrary to the facts and
circumstances of the case and the evidence on
record and against the principles of law and calls
for interference by this Court?

5. Whether the finding of the Trial Court that, the
sale deeds executed by the defendant no.1 are
valid to the extent of the share of the defendant
no.1 is contrary to the facts and circumstances of
the case and the evidence on record and against
the principles of law and calls for interference by
this Court?

6. Whether the observation of the Trial Court that if
no land is available to any of the purchasers i.e.,
defendant nos.3 to 7 and the share allotted to
the defendant no.1 such purchaser is at liberty to
recover the sale consideration amount on strict
proof of payment of the same from the defendant
no.1 as observed in para 41 of the Judgment is
contrary to the facts and circumstances of the
case and the evidence on record and against the
principles of law and calls for interference by this
Court?

7. Whether the imposing of exemplary cost of
Rs.5,000/- for willful breach of injunction order
on the defendant no.1 is contrary to the facts
and circumstances of the case and the evidence
on record and against the principles of law and
calls for interference by this Court?

8. Whether the Judgment and Decree of the Trial in
decreeing the suit of the plaintiff holding that the
plaintiff is entitled for ½ share in the suit

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properties is contrary to the facts and
circumstances of the case and the evidence on
record and against the principles of law and calls
for interference by this Court?

9. What order?”

12. The First Appellate Court on reconsideration answered
Point No.1 in the affirmative and Point No.2 in the
negative and while answering Point No.3 in the
affirmative, held the plaintiff, Bhavani is entitled to one
rd
third (1/3 ) share and the share of defendant No.1 would
rd rd
be two third (2/3 ) out of which one third (1/3 ) share is
the self acquired property of defendant No.1. Being
aggrieved by the same the present appeal in RSA
No.5808/2012 is filed by the plaintiff.
Facts involved in RSA No.5955/2012 are as under:

13. This appeal is filed by Bhavani who is defendant No.2
(plaintiff in O.S.No.83/1992) in O.S.No.76/2001 filed by
Mangala, Saritha, Veena, Nagaraj, Archana, as wife and
children of Mahadev (defendant No.1 in O.S.No.83/1992)
for partition and separate possession of the suit schedule
properties contending that, said properties are the
undivided Hindu joint family properties. That Bhalindra

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Gauda had two brothers by name Kuppu gouda and Iru
th
Gouda. Defendant No.1 had got three fourth (3/4 ) share
th
and defendant No.2 had got one fourth (1/4 ) share out
th
of three fourth (3/4 ) share of defendant No.1, plaintiffs
th
and defendant No.1 are entitled for one sixth (1/6 )
share each and defendant No.1 was not maintaining and
providing any amenities to plaintiffs and that he had been
alienating the properties without family necessity. That
Bhavani/defendant No.2 has already filed suit in
O.S.No.83/1992 in respect of very same property. Since
defendant No.1, despite there being interim order,
disobeying the same has been alienating the property to
defendant Nos.3 to 7, they are constrained to file a suit
seeking their share. Said suit is resisted. Following issues
were framed.
“1. ªÁ¢AiÀÄgÀÄ zÁªÁ ‘C' ªÀÄvÀÄÛ '§' ±ÉqÀÆå¯ï D¹ÛUÀ¼ÀÄ ªÁ¢AiÀÄgÀ
ªÀÄvÀÄÛ ¥ÀæwªÁ¢ ªÀÄvÀÄÛ 2£ÉÃAiÀÄªÀgÀ MlÄÖ PÀÄlÄA§zÀ D¹ÛUÀ¼ÀÄ
JAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀÄªÀgÉÃ?

2. ªÁ¢AiÀÄgÀÄ 15/24 ¨sÁUÁA±ÀzÀ ºÀPÀÌ£ÀÄß zÁªÁ ‘C' ±ÉqÀÆå¯ï
¸ÀévÀÄÛUÀ¼À®Äè 5/6 ¨sÁUÁA±ÀzÀ ºÀPÀÌ£ÀÄß ‘§' ±ÉqÀÆå¯ï ¸ÀévÀÄÛUÀ¼À®Äè
¸ÀgÀ¸À-¤gÀ¸ÀªÁV ¥ÀqÉAiÀÄ®Ä CºÀðgÉÃ?

3. ªÁ¢AiÀÄgÀÄ zÁªÁ ¸ÀévÀÄÛUÀ¼À°è£À ¨sÀ«µÀå GvÀà£Àß ¥ÀqÉAiÀÄ®Ä
CºÀðgÉÃ?

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4. ªÁ¢AiÀÄgÀÄ, 2£ÉÃ ¥ÀæwªÁ¢AiÀÄÄ 1£ÉÃ ¥ÀæwªÁ¢ «gÀÄzÀÞ ªÀÄÆ®
zÁªÁ £ÀA.83-92 £ÀÄß PÀÄªÀÄmÁ £ÁåAiÀiÁå®AiÀÄzÀ°è «¨sÁUÀPÁÌV
ªÀiÁrzÀÄÝ, ¸À¢æ. £ÁåAiÀiÁ®AiÀÄ¢AzÀ ¥ÀgÁ¢üÃ£À ªÀiÁqÀ¨ÁgÀzÉA§
ªÀÄzsÀåAvÀgÀ DzÉÃ±À«zÀÝgÀÆ ¸ÀºÀ 3 jAzÀ 7£ÉÃ ¥ÀæwªÁ¢AiÀÄgÀÄ
£ÁåAiÀiÁ®AiÀÄzÀ DeÉÕAiÀÄ£ÀÄß G®èAX¹ zÁªÁ ¸ÀéwÛ£À 1-8-0
PÉëÃvÀæªÀ£ÀÄß RjÃ¢ ªÀiÁrgÀÄvÁÛgÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀÄªÀgÉÃ?

5. 1£ÉÃ ¥ÀæwªÁ¢AiÀÄÄ zÁªÁ ‘C' ±ÉqÀÄå¯ï ¸ÀéwÛ£À ¸ÀªÉð £ÀA§gÀÄUÀ¼ÁzÀ
18-2§ ªÀÄvÀÄÛ 18-3§ d«ÄÃ£ÀÄUÀ¼ÀÄ «¯ï ªÀÄÄSÁAvÀgÀ §AzÀ
DvÀ£À ¸ÀéAiÀiÁðfvÀ D¹ÛUÀ¼ÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀÄªÀgÉÃ?

6. 7£ÉÃ ¥ÀæwªÁ¢AiÀÄÄ, MAzÀÄ ªÉÃ¼É £ÁåAiÀiÁ®AiÀÄªÀÅ, ªÁ¢AiÀÄgÀÄ
zÁªÁ ¸ÀévÀÄÛUÀ¼À°è ¨sÁUÁA±À ¥ÀqÉAiÀÄ®Ä ºÀPÀÄÌzÁgÀgÉAzÀÄ
¤tð¬Ä¹zÀ°è DvÀ£ÀÄ PÀæAiÀÄPÉÌ ¥ÀqÉ¢gÀÄªÀ 18:2§ zÀ°è 0-11-0 PÉëÃvÀæ
zÁªÁ d«ÄÃ£À£ÀÄß 1£ÉÃ ¥ÀæwªÁ¢AiÀÄ ¨sÁUÀPÉÌ «AUÀr¸À§ºÀzÉAzÀÄ
gÀÄdÄªÁvÀÄ¥Àr¸ÀÄªÀ£ÉÃ?

7. AiÀiÁªÀ DzÉÃ±À CxÀªÁ rQæ?”

14. On consideration of the pleading, the Trial Court decreed
the suit in part granting the relief as under:
“ORDER
The suit filed by plaintiffs is hereby decreed partly.
It is hereby held that plaintiff Nos.1 to 5 are
entitled for partition and separate possession by metes
th
and bounds to an extent of 1/6 share each in the suit
‘A’ and ‘B’ schedule properties only out of ½ share of
defendant No.1 in the suit schedule properties and also
only out of the extent of land mentioned in the revenue
records of the family of the defendant No.1.
Ex.P9 and Ex.P.10 which are the Judgment and
Decree passed by the Prl. Civil Judge (Jr.Dn.) Court,
Kumta, in O.S.No.83/1992 or also part and parcel of this
Judgment and Decree.

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However, it is hereby held that whatever the
alienation of defendant No.1 in favour of defendant No.7
as per Ex.D2 in respect of ‘A’ schedule Sy.No.18/2B
measuring to an extent of 0-6-0 of land is not binding to
the extent of share of the plaintiff Nos.1 to 5. However
Ex.D2 is binding to the extent of defendant No.1 share
th
only. That 1/6 share of the defendant No.1 is to be
allotted to the share of defendant No.7 at the time of
Final Decree Proceedings.
No orders as to cost.
Draw the preliminary decree accordingly.”

15. Being aggrieved by the aforesaid judgment/decree,
defendant No.7 filed an appeal in R.A.No.89/2007, in
which following points were framed.
“1. Whether the finding of the Trial Court that the
th
plaintiffs are joint entitled for 1/6 share in the
plaint 'A' and 'B' schedule property in the ½ share
of the defendant no.1 is contrary to the facts and
circumstances of the case and the evidence on
record and against the principles of law and calls
for interference by this Court?

th
2. Whether the finding of the Trial Court that the 7
defendant is not entitled for the equitable partition
by allotting the property purchased by him from
st
the 1 defendant is contrary to the facts and
circumstances of the case and the evidence on
record and against the principles of law and calls
for interference by this Court?

3. Whether the finding of the Trial Court that the
alienation made by the defendant no.1 in favour of
defendant no.7 as per Ex.D2 in respect of
Sy.No.18/2B measuring to an extent of 0-6-0 is
binding only to the share of the defendant no.1 is
contrary to the facts and circumstances of the
case and the evidence on record and against the

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principles of law and calls for interference by this
Court?

4. Whether the Judgment and Decree of the Trial
Court decreeing the suit of the plaintiff in part is
contrary to the facts and circumstances of the
case and the evidence on record and against the
principles of law and calls for interference by this
Court?

5. What order?”

16. On consideration the First Appellate Court modified the
shares holding plaintiffs were entitled for five eighteenth
th rd
(5/18 ) share in two third (2/3 ) share of defendant
No.1 and defendant No.1 was entitled for seven
th rd
eighteenth (7/18 ) share in two third (2/3 ) share. Being
aggrieved by the same, Bhavani, defendant No.2 in the
said suit has preferred the regular second appeal in RSA
No.5955/2012.

17. These matters are admitted today for consideration of
following substantial questions of law:

1. Whether the First Appellate Court is justified in
modifying judgment and decree passed by the
Trial Court by granting one third share to the
plaintiff and two third share to defendant No.1 in
the light of law laid down by the Apex Court in the
case of Vineeta Sharma vs. Rakesh Sharma
and Others AIR 2020 SC 3717
reported in ?

2. Whether the First Appellate Court is justified in
holding defendant No.1 was entitled for additional

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one sixth share in the family properties by virtue
of bequeath made by Iru Jattu Gouda and
additional one sixth share in terms of partition
deed dated 09.03.1989 in absence of production
and proof of such deed in the manner known to
law?

18. With the consent of the learned counsel appearing for the
parties, matter is taken up for final disposal.

19. Heard learned counsel for the parties and perused the
records.

20. There is no dispute of the fact that the suit schedule
properties are the ancestral properties which were
acquired by the father of Bhavani-plaintiff and Mahadev-
defendant No.1 in O.S No.83/1992 and defendants No.2
and 1 respectively in O.S.No.76/2001.

21. The Trial Court taking into consideration the genesis of
the property and the entitlement of said Bhavani and
Mahadev, being the only two legal heirs of Bhalindra
Gouda, had granted half (1/2) share each and since wife
and children of Mahadeva had sought for their share, the
th
Trial Court had allotted one sixth (1/6 ) share each to
them out of half share which was allocable to Mahadev.

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22. However, the First Appellate Court accepting the
contention of the defendants that there was a partition
between the brothers of the father of the parties in the
year 1989 and that one of the brothers of the father of
the plaintiff and defendant had executed a Will
bequeathing his share in favour of defendant No.1 has
modified the said sharing pattern.

23. On a query by this Court, it is fairly submitted by learned
counsel for the purchasers that neither such a Will was
ever produced nor the same has not been proved in the
manner known to law. Defendant No.1 on whose behalf
purported Will allegedly executed by Iru Jattu Gouda was
sought to be propounded has never entered into witness
box. Only photocopy of the said Will was sought to be
produced. The witness was examined has pleaded
ignorance. DW.1 has, as noted by the Trial Court on one
breath has deposed that Balindra had executed the Will
and in other words deposed that the same was executed
by Iru Jattu Gouda. In any event, since the Will has not
been proved in the manner known to law, the Trial Court

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has negated the said contention. As such, the First
Appellate court in the absence of proof of Will ought not
to have interfered on this aspect of the matter. As there
is no legal evidence available on record in this regard.

24. Similarly, the deed of partition which the First Appellate
Court relied upon had been produced as Ex.D13 in
O.S.No.83/1992. But however, the said partition deed
was not between the two brothers of Balindra Gouda and
defendant No.1 as contented. The said partition deed was
between Balindra Gouda and his two brothers. In terms
of which the suit schedule properties became the
properties of Balindra Gouda. The Trial Court has
adverted to this aspect of the matter at Paragraph Nos.29
and 31 of its judgment. The First Appellate Court thus,
has wrongly relied upon the said Will and the Partition
Deed to hold Mahadev defendant No.1 being entitled for
share larger than what was he otherwise would be
entitled to. The judgment and decree thus passed by the
Trial Court ought not to have interfered with the First
Appellate Court by wrongly interpreting and relying upon

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the alleged Will which never saw the light of day and the
partition deed which was never entered into as contended
in the written statement. Therefore, the only question
that arises for consideration is, whether Bhavani was
entitled for equal share along with her brother Mahadev.

25. Law in this regard is well settled by the Apex Court in the
Vineeta Sharma Vs. Rakesh Sharma and
case of
others reported in AIR 2020 SC 3717 . Daughter being
entitled for equal share as that of a son as per the
subsequent amendment to Section 6 of the Hindu
Succession Act.

26. Suit was pending at the time of amendment and
subsequent enunciation of law by the Apex Court would
enure to the benefit of the plaintiff-Bhavani. She
becoming entitled for half share of the suit schedule
property.

27. In the remaining half share which is allocable to
Mahadev, it is jointly submitted by the learned counsel
for the parties that the parties to the suit coming within

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the special provisions of law governing under Bombay
province wherein wife is entitled for share in the
husband’s property.

28. As regards defendant Nos.3 to 7 who claim to have
purchased the suit property from Mahadev, their share,
right, title and entitlement is governed under the
provisions of Section 44 of the Transfer of Property Act.

29. Substantial questions of law framed for consideration are
answered accordingly.

30. For the aforesaid reasons, the following:
ORDER

(i) Both the Regular Second Appeals are
allowed.

(ii) The impugned common judgment and decree
dated 31.01.2012 passed in R.A.Nos.198
and 200 of 2006 and impugned judgment
and decree dated 29.02.2012 passed in
R.A.No.89/2007 by the Senior Civil Judge,
Kumta are set aisde.

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(iii) The judgment and decree passed in
O.S.No.83/1992 dated 31.08.2004 Passed
by the Principal Civil Judge (Jr.Dn.), Kumta
and judgment and decree dated 29.08.2007
passed by Additional Civil Judge (Jr.Dn.)
Kumta are restored.

(iv) Needless to state that the purchasers,
defendant Nos.3 to 7, who claim to have
purchased portion of suit schedule
properties from Mahadev-defendant No.1
would be entitled for their share from and
out of the share which is allocable to
Mahadev-defendant No.1.

Sd/-
(M.G.S. KAMAL)
JUDGE

EM:
CT:CMU
LIST NO.: 1 SL NO.: 52