Karnataka High Court
Sri Giridhar K vs Sri. Dasharathi K on 9 October, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2025:KHC:39749
RFA No. 1902 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO. 1902 OF 2025 (PAR)
BETWEEN:
1. SRI. GIRIDHAR K.
S/O. KUPPUSWAMY,
AGED ABOUT 64 YEARS,
R/AT NO. 1357, 2ND STAGE,
WEST OF CHORD ROAD,
MAHALAKSHMIPURAM,
BANGALORE - 560 086.
...APPELLANT
(BY SRI. MANJUNATH S.N., ADVOCATE)
AND:
Digitally signed
by
SHARADAVANI 1. SRI. DASHARATHI K.
B
Location: High S/O. M.S. KUPPUSWAMY,
Court of
Karnataka AGED ABOUT 72 YEARS,
R/AT NO.11, 1ST MAIN,
KHB COLONY, VIVEKANANDA NAGAR,
HOSAKOTE,
BANGALORE RURAL DISTRICT.
2. SRI. PADMANABHA K.
S/O. M.S. KUPPUSWAMY,
AGED ABOUT 69 YEARS,
R/AT NO.87, 6TH MAIN,
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NC: 2025:KHC:39749
RFA No. 1902 of 2025
HC-KAR
SHANKARA NAGAR
BANGALORE - 560 096
3. SMT. JAYASHREE K
W/O LATE SUKHATHIRTHA K
AGED ABOUT 64 YEARS
R/AT NO. 130, 6TH MAIN,
POSTAL COLONY, SANJAYNAGAR
BANGALORE - 560 94
...RESPONDENTS
(BY SRI. B.N. MURALIDHAR, ADVOCATE FOR C/R1 AND C/R2
SRI. M. MADHAVACHAR, ADVOCATE FOR C/R3)
THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 28.03.2025
PASSED IN OS NO.4396/2017 ON THE FILE OF LXII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT
BENGALURU CITY (CCH-63)., DECREEING THE SUIT FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL JUDGMENT
This appeal by the defendant No.2 in OS 4396 of 2017 is directed against the impugned judgement and decree dated 28.03.2025 passed by the LXII Additional City Civil and -3- NC: 2025:KHC:39749 RFA No. 1902 of 2025 HC-KAR Sessions at Bangalore, whereby the said suit filed by the respondents No.1 and 2 - plaintiffs against appellant - defendant No.2 and responded No.3 - defendant No.3 for partition and separate possession of their alleged share in the suit schedule immovable property was decreed by the trial Court in favour of the plaintiff and against the defendant.
2. Heard learned counsel for appellant and learned counsel for respondents No.1 and 2 and learned counsel for respondent No.3 and perused the material on record. With the consent of both sides, though the matter is posted for admission, the same is taken up for final disposal.
3. A perusal of the material on record will indicate that the relationship between the parties is not in dispute in as much as that the respondents No.1 and 2 are none other than the children of M S Kuppuswamy and Smt. Vasantha Kuppuswamy. The plaintiffs filed the instant suit against their mother Smt. Vasantha Kuppuswamy (defendant No.1), their brother - appellant (defendant No.2) and their sister Jayashree (defendant No.3) seeking partition and separate possession of their alleged share in the suit schedule property on the ground -4- NC: 2025:KHC:39749 RFA No. 1902 of 2025 HC-KAR that the said property belonged absolutely to their father Mr. Kuppuswamy, who was missing from 1972 onwards and by virtue of Section 108 of the Indian Evidence Act, he is deemed to have died a civil death and consequently all the parties would be entitled to their legitimate share in the suit schedule properties. The appellant - defendant No.2 as well as the mother Smt. Vasantha Kuppuswamy - defendant No.1 filed their written statement inter alia contending that the suit schedule property was the separate and self acquired property of defendant No.1 and neither the plaintiffs nor defendant No.3 were entitled to claim a share in the suit schedule property during the lifetime of defendant No.1. It was also contended that after the aforesaid Kuppuswamy went missing, one more property i.e., land bearing Sy. No.155 measuring 4 acres 22 guntas situated at Adivala village, Hiriyur taluk, Chitradurga district was alienated by all the parties to the suit and the sale consideration was utilised for the purpose of putting up construction and development of a house i.e., house number 11, KHB colony near Citizen School, Hoskote and the said property having not been included among the suit schedule property, the suit was bad for non joinder of necessary -5- NC: 2025:KHC:39749 RFA No. 1902 of 2025 HC-KAR properties. It was therefore contended that the suit was liable to be dismissed.
4. The defendant No.3 - sister filed a written statement supporting the claim of the plaintiff and sought for partition and separate possession of her legitimate share in the suit schedule property.
5. Based on the aforesaid pleadings, the trial Court framed the following issues -
1. Whether the plaintiffs proves that the suit schedule property is the Joint Family property of plaintiffs and defendants?
2. Whether the first defendant proves that the suit schedule property is the self acquired property of first defendant?
3. Whether the defendant proves that suit of the plaintiff is bad for non joinder of necessary properties?
4. Whether the plaintiff is entitled for the relief as claimed?
5. What Order?
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NC: 2025:KHC:39749 RFA No. 1902 of 2025 HC-KAR
6. The plaintiff examined himself as PW.1 and documentary evidence at EXs.P1 to P12 were marked. The defendant No.3 examined herself as DW.1 and while defendant No.2 examined himself as DW.2 and documentary evidence at EXs.D1 and D2 were marked.
7. It is relevant to state that during the pendency of the suit, the defendant No.1 Smt. Vasantha Kuppuswamy died intestate leaving behind the plaintiffs - defendant Nos.2 and 3 to succeed to her estate including the suit schedule property as her only heirs and legal representatives. Under these circumstances, though the defendant No.1 had taken up a specific contention that suit schedule property was her separate absolute and self acquired property, since she has died intestate leaving behind the plaintiffs and defendants No.2 and 3 to succeed to the suit schedule property as her heirs and legal representatives, the trial Court answered issues 1 and 2 in favour of the plaintiffs by declaring that they are entitled to 1/4th share each in the suit schedule property. Insofar as issue No.3 pertaining to non-joinder of necessary properties are concerned, the trial Court recorded the following findings - -7-
NC: 2025:KHC:39749 RFA No. 1902 of 2025 HC-KAR " 18. Issue No.3 : Defendant has taken contention that suit of the plaintiff is not maintainable for non joinder of necessary parties to the suit. That the plaintiffs have filed the suit against their mother and their brother excluding their sister Jayashree K. After framing the issues, when case is posted for evidence, then plaintiffs have amended the plaint and Jayashree K made as party in this suit. Apart from plaintiffs, defendant Nos.2 and 3 none are necessary parties to the suit. However defendant No.2 has not placed any documents nor evidence to come to conclusion that suit of the plaintiff is bad for non joinder of necessary parties. Defendant No.3 who is the daughter of Dr. M S Kuppuswamy and Vasantha Kuppuswamy and she has filed the written statement stating that in the suit schedule property she is also entitled to get share. Therefore I answer issue No.3 in the Negative."
8. It is this finding recorded on issue No.3 that is assailed by the appellant - defendant No.2 in the present appeal. In support of this contention, the appellant - defendant No.2 specifically contends that the property standing in the name of the plaintiff No.1 was developed and constructed by utilising the funds belonging to the joint family and -8- NC: 2025:KHC:39749 RFA No. 1902 of 2025 HC-KAR consequently the appellant would be entitled to a share in the said property also and since a suit for partial partition was not maintainable without including this property, the trial Court committed an error in answering issue No.3 against the appellant - defendant No.2 and decreeing the suit in favour of the respondents - plaintiffs.
9. Per contra, it is the specific contention of the respondents - plaintiffs and defendant No.3 that the properties standing in the name of the plaintiff No.1 was his separate and self acquired property and that the development and construction of the said property was done exclusively by plaintiff No.1 out of his personal funds and by obtaining a loan which was repaid solely by plaintiff No.1 and that the defendant No.2 was not entitled to claim any share in the said property and that the trial Court was fully justified in decreeing the suit in favour of the respondents - plaintiffs against the appellant - defendant No.2 without including this property also.
10. A perusal of the impugned judgment and decree, in particular para 18 with reference to issue No.3 will indicate that though the said issue was framed in relation to non-joinder of -9- NC: 2025:KHC:39749 RFA No. 1902 of 2025 HC-KAR necessary properties, the trial Court has failed to consider and appreciate the said issue and has erroneously answered the said issue on the premise that the said contention was in relation to non joinder of necessary parties. It is also a matter of record that the respondents No.1 and 2 - plaintiffs and respondent No.3 - defendant No.3 have already instituted final decree proceedings in FDP Nos.163/25 and 164/25 which are pending before the Final Decree Court. Under these circumstances, in the absence of any finding recorded by the trial Court on issue No.3 regarding non joinder of necessary properties, and in order to prevent multiplicity of proceedings and to give a finality/quietus to the litigation between the parties, I deem it just and appropriate to dispose of the appeal without interfering with the impugned judgement and decree and by directing all rival contentions between the parties in relation to the contention in relation to the property standing in the name of plaintiff No.1 to be adjudicated upon and decided in the said final decree proceedings and without expressing any opinion on the merits/demerits of the rival contentions and keeping the same open to be decided in the final decree proceedings. Under these circumstances, I am of the view that
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NC: 2025:KHC:39749 RFA No. 1902 of 2025 HC-KAR the impugned judgement and decree passed by the trial Court decreeing the suit in favour of the plaintiff in relation to the sole item of suit schedule property deserves to be confirmed and upheld by directing the rival contentions between the parties as regards the property standing in the name of plaintiff No.1 to be adjudicated upon during final decree proceedings by leaving open all contentions.
11. In the result, appeal is hereby disposed of without interfering with the impugned judgement and decree dated 28.03.2025 passed in O.S. No.4396/2017 by the LXII Additional City Civil and Sessions Judge at Bengaluru. The impugned judgement and decree passed by the trial Court directing partition and separate possession of 1/4th share each of the plaintiffs and defendants No.2 and 3 in the suit schedule property is hereby confirmed.
12. All rival contentions between the parties as regards the claim of the appellant - defendant No.2 in relation to the another property standing in the name of plaintiff No.1 are left open to be decided by the final decree Court during the course
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NC: 2025:KHC:39749 RFA No. 1902 of 2025 HC-KAR of final decree proceedings and no opinion is expressed on the merits/demerits of the rival contentions.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE YKL List No.: 1 Sl No.: 6