IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.1251 OF 2018 (PAR)

BETWEEN:

SMT. SHEELA AGED ABOUT 46 YEARS, W/O ARUNKUMAR, NAZARE R/AT RANNIBENNUR TALUK HAVERI DISTRICT – 581 115 …APPELLANT (BY SRI. LOKESHA. K, ADVOCATE)

AND:

SRI. VIJAYANATHA @ VIJAYANANDA I M AGED ABOUT 52 YEARS, S/O KOTRAIAH R/AT 2^ND CROSS ROAD, DASAR COLONY, ANAVATTI ROAD, SIRALKOPPA TOWN SHIKARIPURA TALUK – 577 428 …RESPONDENT Digitally signed (BY SRI. VIJAYANATHA- RESPTD SD.,ADVOCATE)

by RAMYA D Location:

HIGH COURT THIS RFA FILED UNDER SEC.96 OF CPC., R/W ORDER OF KARNATAKA XLIII RULE 1 CPC., AGAINST THE JUDGMENT AND DECREE DATED 01.03.2018 PASSED IN OS.NO.40/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, AND JMFC., SORABA, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:’

CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

ORAL JUDGMENT

The appeal is filed by the plaintiff challenging the judgment and decree dated 01.03.2018 passed by the Court of Senior Civil Judge and JMFC, Soraba, in O.S.No.40/2016, thereby, the suit filed for partition and separate possession is dismissed.

2. Rank of the parties is referred to as per their rankings before the trial court.

BRIEF FACTS:

3. It is the case of plaintiff that Kotraiah and Anasuyamma are the father and mother of the plaintiff and the defendant. It is stated that the suit schedule properties were purchased by the father Kotraiah. The schedule ‘A’ property was purchased on 18.03.1974 and the house property was purchased on 01.02.1983. The schedule properties are self acquired properties of Kotraiah. Said Kotraiah and Anusuyamma had three children namely, defendant is the elder son, one Rajashekaraiah is the second son and plaintiff is the daughter. Rajashekaraiah died unmarried. Therefore, the plaintiff has requested for half share in the suit properties, but the same is denied by the defendant. Therefore, the plaintiff is constrained to file the suit for partition.

4. The defendant has appeared and filed written statement contending that the suit schedule properties were purchased by their father Kotraiah and admitted by the plaintiff in her pleadings in this regard, but the defendant has set up a defence that Kotraiah was suffering from heart ailment and on 24.05.1984 Kotraiah had executed a Will bequeathing the suit properties to his wife Anasuyamma for enjoyment of properties during her lifetime and after her death, the suit properties are bequeathed by the defendant. It is therefore contended that in view of the Will the defendant had become the owner of the schedule properties. Thus, contended the suit for partition is not maintainable.

5. Upon considering the pleadings, the trial court has framed the following issue:

(1) Whether the plaintiffs prove that she and defendant are members of joint family and suit schedule properties were joint family properties liable for partition?

(2) Whether the defendant proves that he has become absolute owner of the suit schedule B properties on the basis of the “Will” dated 24.05.1984 executed by Kotraiah?

(3) Whether the plaintiff is entitled for share in the suit schedule properties? If so what share?

(4) What order or decree?

6. The plaintiff is examined as PW1 and produced documents, which are marked as Exs.P-1 to P-9. The defendant is examined as DW1 and two witnesses are examined as DW2 and DW3 and produced documents, which are marked as Exs.D-1 to D-3.

7. The trial court after appreciating the evidence on record has dismissed the suit for partition by assigning reasons that Kotraiah had executed a Will in favour of Anasuyamma and after her death the properties are bequeathed in favour of defendant and by attesting witnesses the execution of Will is proved. Therefore, the suit properties are not joint family properties and by virtue of the Will the defendant has become the owne