IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 11^TH DAY OF NOVEMBER, 2025

BEFORE

THE HON'BLE MR. JUSTICE H.P.SANDESH

REGULAR SECOND APPEAL NO. 2189 OF 2023 (PAR/POS)

BETWEEN:

CELESTINE KUNDER

AGED ABOUT 81 YEARS

W/O LATE AUGUSTINE KUNDER

R/AT MISSION COMPOUND

MOOLUR VILLAGE, UCHILA POST

KAPU TALUK, UDUPI DISTRICT-574 117.

…APPELLANT

(BY SRI. PRASANNA V.R., ADVOCATE)

AND:

1. VATHSALA AMMANNA

AGED ABOUT 56 YEARS

D/O SUNDARI AMMANNA

Digitally signed 2. VINIL GRINIZ KUNDER

by DEVIKA M

AGED ABOUT 26 YEARS

Location: HIGH

S/O SUNDARI AMMANNA

COURT OF

KARNATAKA

BOTH ARE R/AT “BETHANYA”

MISSION CHURCH ROAD

MUDARANGADI

SANTHOOR VILLAGE

PILAR POST, KAPU TALUK

UDUPI DISTRICT-574 113.

…RESPONDENTS

(BY SRI. SUDESH KUMAR ACHARYA U., ADVOCATE)

THIS RSA IS FILED UNDER SECTION 100 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 03.08.2023 PASSED IN RA NO.41/2022 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, UDUPI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 12.09.2022 PASSED IN OS NO.119/2020 ON THE FILE OF III ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI.

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

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

ORAL JUDGMENT

1. Heard the learned counsel for the appellant and also the learned counsel for the respondents.

2. The present second appeal is filed against the concurrent finding. The Trial Court when the suit was filed by the mother against the widow of the deceased son and lineal descendants seeking half share. Based on the pleadings, the Trial Court framed five issues and out of five issues, issue No.3 is a preliminary issue whether the defendants prove that the suit is not maintainable in view of Section.33 of Indian Succession Act, 1925. The Trial Court having considered the issue involved between the parties, when the claim was made to the extent of half share, extracted Section 33 of the Indian Succession Act, 1925 in paragraph Nos.14 and 15 of the judgment and comes to the conclusion that as per Section 33 of the Succession Act, the mother is not given any share in the property of her son when he has left lineal descendant. Under such circumstances, the plaintiff being the mother of the deceased Christajeevan Kunder is having no right to claim partition in respect of the suit schedule property in the lifetime of lineal descendant and hence answered the preliminary issue and dismissed the suit.

3. Being aggrieved by the said order, an appeal is filed in R.A.No.41/2022 and Appellate Court also having considered the material on record, particularly the reasoning of the Trial Court even extracted Section 33 and discussed in detail and comes to the conclusion that Trial Court has not committed any error in coming to such a conclusion and dismissed the appeal.

4. Being aggrieved by the said concurrent finding, the present second appeal is filed. The main contention of the counsel appearing for the appellant is that there is no dispute with regard to the relationship between the parties are concerned and only Trial Court has erred in dismissing the suit of the plaintiff holding that the same is barred under Section 33 of the Indian Succession Act by considering Issue No.3 and the said approach is erroneous. The Appellate Court also committed an error in confirming the same and hence it requires interference. Hence this Court has to frame substantive question of law.

5. Per Contra, the counsel appearing for the respondents brought to notice of this Court, order passed by High Court of Madras in a case of Agnes and Karpaga Devi V/s Pauline wherein also Section 33 and 33A was discussed and brought to notice of this Court paragraph Nos.8 and 10 particularly in respect of the mother is concerned, held that the mother of an intestate does not become the heir unless there is a failure on other heirs namely, widow, the lineal descendant, kindred or Father.

6. Having heard the appellant’s counsel and also the counsel appearing for the respondents and also considering the ver