Karnataka High Court
Basavaraj A/F Shivalingappa Kallur vs Neelavva W/O Manthayya Kalur on 3 March, 2026
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2026:KHC-D:3308
MSA No. 100161 of 2020
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
AT DHARWAD
DATED THIS THE 3RD DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
MISCELLANEOUS SECOND APPEAL NO.100161 OF 2020 (RO)
BETWEEN:
SHIDDAVVA
W/O SHIVALINGAYYA KALLUR
SINCE DECEASED BY HER LR.
1. BASAVARAJ A/F SHIVALINGAPPA KALLUR
AGE: 17 YEARS, OCC: STUDENT,
SINCE MINOR REPRESENTED BY HIS
NATURAL FATHER/NEXT FRIEND
BASAYYA
S/O KARIBASAYYA SANKENAMATHA,
AGE.: 52 YEARS, OCC: AGRICULTURE,
R/O CHANDUR-583236,
TAL: YALABURGA, DIST. KOPPAL.
CHANDRASHEKAR
2. BASAYYA
LAXMAN
KATTIMANI S/O KARIBASAYYA SANKENAMATHA
Digitally signed by
CHANDRASHEKAR LAXMAN
KATTIMANI
Location: High Court of
Karnataka, Dharwad Bench
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O CHANDUR-583236,
Date: 2026.03.05 09:38:17
+0000
TAL: YALABURGA, DIST: KOPPAL.
...APPELLANTS
(BY SRI C.S. SHETTAR, ADVOCATE)
AND:
1. NEELAVVA
W/O MANTHAYYA KALLUR
SINCE DECEASED REPRESENTED
BY HER L.RS., RESPONDENTS NO.2 & 3
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NC: 2026:KHC-D:3308
MSA No. 100161 of 2020
HC-KAR
2. ANNAPURNA
W/O ANDAYYA BADRAPURA
AGE.: 30 YEARS,
OCC: AGRICULTURE,
R/O HALLIGUDI-583236,
TAL: YALABURGA, DIST: KOPPAL.
3. MALLAYYA
S/O MANTHAYYA KALLUR
AGE: 31 YEARS,
OCC: AGRICULTURE,
R/O KODIKOPPA-582201,
TAL: RON, DIST: GADAG.
...RESPONDENTS
(BY SRI. VIJAYKUMAR BALAGERIMATH, AND
SRI. MAHESHWARAYYA PUJAR, ADVOCATES FOR R2;
SRI. VISHWANATH HEGDE, ADVOCATE FOR R3;
(R2, R3 ARE LRS OF DECEASED R1)
THIS MSA IS FILED UNDER SECTION 100 READ WITH
ORDER XLII R 1(U) OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 06.03.2020 PASSED IN R.A.NO.17/2018 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, RON, ALLOWING THE APPEAL FILED AGAINST THE
JUDGMENT AND DECREE DATED 27.09.2018 PASSED IN
O.S.NO.100/2012, ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
AND JUDICIAL MAGISTRATE FIRST CLASS, RON, PARTLY
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION & ETC.
THIS MSA COMING ON FOR FURTHER HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
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NC: 2026:KHC-D:3308
MSA No. 100161 of 2020
HC-KAR
ORAL JUDGMENT
Challenging judgment and decree dated 06.03.2020 passed by Senior Civil Judge and JMFC, Ron in R.A.no.17/2018, remitting matter back to Trial Court, this miscellaneous second appeal is filed.
2. Sri CS Shettar, learned counsel appearing for appellants submitted that appeal was by defendants no.2 and 3 in OS no.100/2012 filed by respondents herein seeking for decree of partition and separate possession of their ½ share and for declaration that defendant no.2 was not adoptive son of defendant no.1 etc.
3. In plaint, it was stated that suit properties were joint family properties of plaintiffs and defendant no.1 and that one Parutayya propositus had two sons Channabasayya and Shivalingayya. Shivalingayya married Shiddavva- defendant no.1 and died issueless. Channabasayya married Karabasavva and had a son Manthayya. Channabasayya and his wife Karabasavva had died and that Manthayya had -4- NC: 2026:KHC-D:3308 MSA No. 100161 of 2020 HC-KAR married Neelavva and had two children Mallayya and Annapurna and that said Neelavva, Annapurna and Mallayya were plaintiffs.
4. It was further stated, since suit properties were ancestral joint properties of Parutayya, plaintiffs were entitled for half share in same. However on demand, same was denied giving rise to cause of action for filing suit.
5. On appearance, defendants filed written statement denying plaint averments, but admitting nature of suit schedule properties as joint family properties and genealogical tree. Defendants no.1 and 2 also filed counter claim for half share in suit properties. However, they contended that adoption of defendant no.2 by defendant no.1 was by following all formalities and claiming that impleading of defendant no.3 amounted to misjoinder.
6. Based on pleadings, Trial Court framed following issues:
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1. "Whether plaintiffs prove that the suit schedule properties are the joint family ancestral property of plaintiffs and the defendant No.1?
2. Whether the plaintiffs further prove that, the defendant No.3 has got created documents and has falsely claiming 2nd defendant as the adopted son of defendant No.1?
3. Whether the defendants prove that the suit is bad for mis-joinder of parties?
4. Whether the defendants prove that the 2nd defendant is the adopted son of the defendant No.1?
5. Whether the defendant No.1 and 2 are entitled for half share in the suit schedule property as claimed in the counterclaim?
6. Whether the plaintiffs are entitled for the partition and separate possession of their share in the suit schedule properties?
7. Whether the defendants are entitled for half share in the suit schedule properties as sought in the counterclaim?
8. What order or decree?"
7. Plaintiff no.2 along with three others deposed as PWs.1 to 4 and got marked Exs.P1 to P7. Likewise defendant no.1 along with two others deposed as DWs.1 to 3 and got marked Ex.D1.
8. On consideration, Trial Court answered issues no.1, 4 to 7 in affirmative, issues no.2 and 3 in negative -6- NC: 2026:KHC-D:3308 MSA No. 100161 of 2020 HC-KAR and issue no.8 by partly decreeing suit for partition, dismissing relief of declaration and decreeing counter claim of defendants.
9. Aggrieved by rejection of relief of declaration, plaintiffs filed R.A.no.17/2018 on various grounds. They also filed I.A.no.2 read with section 151 of CPC under Section 45 of Evidence Act and I.A.no.3 under Order XLI Rule 27 of CPC for additional evidence. Though applications were opposed, first appellate Court framed following points for consideration.
1. "Whether the appellants have made out sufficient grounds that the Trial court has not properly appreciated the evidence and documents available on record, and came to the wrong conclusion to partly decree the suits against the principles of natural justice?
2. Whether the appellants have made out sufficient grounds to get the opinion of the doctor as sought for in the I.A, with respect to the mental condition of the respondent No.1.?
3. Whether the appellants have made out that, the additional evidence, as narrated in the I.A No.III, is necessary to determine once again the real question in controversy between the parties?
4. Whether the impugned judgment and decree calls for the interference by this Court?
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5. Whether there is an exceptional grounds made out to remand the case for case for retrial?
6. What order or decree?"
10. After answering Points no.1 to 5 in affirmative, it answered Point no.6 by allowing appeal, setting aside judgment and decree passed by trial Court and allowing I.As.no.2 and 3 and remitting matter back to trial Court for fresh disposal after framing additional issues and permitting parties to lead evidence thereon. Aggrieved, defendants had preferred this appeal.
11. Learned counsel urged two specific contentions against order of remand. It was firstly contended that I.A.no.2 filed under Section 45 of Evidence Act read with Section 151 of CPC was for examination of defendant no.2 by a doctor for assessment of his mental capacity and requirement of being represented by another person. It was submitted, there were absolutely no pleadings about mental capacity of defendant no.2 in plaint before trial Court. Without any pleadings, application would be untenable. -8-
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12. Other ground of challenge was failure of appellate Court to properly consider application for additional evidence filed under Order XLI Rule 27 of CPC as well as failure to follow procedure contemplated under Order XLI Rule 28 of CPC instead of remitting entire suit back to trial Court. It was submitted, as per provisions of Hindu Adoption and Maintenance Act, 1956 ('HAMA', for short) adoption would be valid regardless of mental or physical state of adoptee. On said grounds sought for allowing appeal and setting aside order of remand.
13. On other hand, Vijaykumar Balagerimath and Sri Vishwanath Hegde, learned counsel for respondents 2 and 3 (plaintiffs no.2 and 3) opposed appeal. It was submitted that Section 45 of Evidence Act read with Order XXXII of CPC cast duty on Court to ensure parties of unsound mind are duly represented by a competent person and their interests protected. Failure to hold enquiry vitiated -9- NC: 2026:KHC-D:3308 MSA No. 100161 of 2020 HC-KAR judgment. Therefore, remand was justified and sought for dismissal.
14. Heard learned counsel perused impugned judgment and decree.
15. From above, question that would arise for consideration is:
"Whether in facts and circumstances of this case, first appellate Court was justified in remanding matter back to trial Court?"
16. Answer to same is in negative for following reasons.
17. Admittedly, plaintiffs' suit was for partition and separate possession of their half share in suit properties. In said suit, defendants no.1 and 2 filed written statement admitted relationship of parties and suit properties as partible. In fact, defendants no.1 and 2 had filed counter claim seeking decree for half share in suit property.
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18. Other prayer was for declaration adoption of defendant no.2 by defendant no.1 as null and void. It is seen, trial Court dismissed prayer for declaration about adoption, but decreed suit for partition. Said decree attained finality against defendants. Only plaintiffs filed appeal challenging rejection of prayer for declaration. In appeal, they filed IA no.2 under Section 45 of Evidence Act read with Section 151 of CPC for medical examination of defendant no.2 to assess his mental state. IA no.3 was filed under Order XLI Rule 27 of CPC for leading additional evidence. Insofar I.A.no.2, Hon'ble Supreme Court in Iqbal Ahmed (Dead) by LRs. & Anr. v. Abdul Shukoor (2025 INSC 1027), held, in absence of pleadings in plaint, no amount of evidence would suffice. Even otherwise, provisions of HAMA do not prohibit adoption of a person of unsound mind.
19. In view of above, consideration of IA no.2 by first appellate Court was totally misconceived and remand for
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20. Even insofar as application filed under Order XLI Rule 27 of CPC for additional evidence, this Court as early as in case of Thimmappa Basappa Kurahatti v. Somappa Venkappa Nagnur reported in ILR 1988 Kar 1654, held proper course for Appellate Court on finding need for allowing additional evidence would be to follow procedure under Order XLI Rule 28 of CPC and not to remand entire suit back to trial Court. Admittedly, there is failure by first appellate Court to follow said mandate. For said reasons, impugned judgment and decree would be unsustainable.
21. Consequently, following:
ORDER i. Appeal is allowed; judgment and decree dated 06.03.2020 passed in RA no.17/2018 on file of Senior Civil Judge and JMFC, Ron is set aside.
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NC: 2026:KHC-D:3308 MSA No. 100161 of 2020 HC-KAR ii. First Appellate Court is directed to reconsider IAs no.2 and 3 in light of observations made hereinabove and pass appropriate orders afresh, but in accordance with law. iii. Since both parties are represented, they are directed to appear before first appellate Court on 06.04.2026, without need for fresh notice.
iv. On appearance, first appellate Court shall expedite disposal.
Sd/-
(RAVI V.HOSMANI) JUDGE EM/CLK CT:VP LIST NO.: 1 SL NO.: 13