Kallappa Mallappa Khinnavar, Vs Shrishail Mallappa Khinnavar — Karnataka HC (2025) — LawSathi Research

Kallappa Mallappa Khinnavar, Vs Shrishail Mallappa Khinnavar — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Appeal allowed; judgment and decree dated 12.12.2011 in FDP No.7/2010 and judgment and decree dated 13.07.2012 in RA No.33/2012 set aside; matter remanded to the FDP Court in FDP No.7/2010 to allot the share of the parties in view of the observations made above; all contentions of the parties kept open.

Issue for consideration

Substantial question of law framed by this Court on 06.09.2017: Whether the First Appellate Court was justified in excluding an extent of 8 ft. 9 inches in CTS No.1904 (as shown by letter IJEF) while allotting the shares to defendants No.1 and 3 pursuant to the preliminary decree passed in O.S.No.27/2001. +1 more

Court's answer

The substantial question of law framed above is answered by remanding the matter to the FDP Court in FDP No.7/2010 to determine the shares of the parties as observed above.

Ratio / Principle

Since the original plaintiff Smt. Ratnakka died on 04.01.2010, the division of the property under Section 54 of CPC has to be made in accordance with the changed circumstances of fact, and her entire 1/3rd share shall devolve among her two children.

Key takeaways

Both the Courts below failed to consider the death of the original plaintiff and the consequent equal division of her share between her two children; the aspect having been ignored, the findings recorded by both the Courts below require to be interfered with.ratio¶58
The devolution of the property is to be made in accordance with the legal entitlement of defendant Nos.1 and 3, taking into consideration the death of their mother Ratnakka.ratio¶58

Detailed headnote1 paragraphs

Regular Second Appeal under Section 100 read with Order XLII Rule 1 CPC against the common judgment and decree dated 26.09.2014 of the First Appellate Court (VII Additional District Judge, Belagavi at Chikodi) in RA No.19/2012 and RA No.33/2012, whereby RA No.33/12 was dismissed and RA No.19/2012 partly allowed. The dispute arises from final decree proceedings (FDP No.7/2010 under Section 54 CPC) following the preliminary decree in OS No.27/2001 (decree dated 13.11.2009, confirmed in RA No.116/2010), whereby Smt. Ratnakka and her sons Kallappa Mallappa Khinnavar and Shrishail Mallappa Khinnavar were held entitled to 1/3rd share each. Smt. Ratnakka died on 04.01.2010. Held: (i) partition under Section 54 CPC must be made in accordance with changed circumstances — on the original plaintiff's death her entire 1/3rd share devolves equally on her two children, an aspect ignored by both Courts below, whose findings therefore require interference; (ii) the substantial question of law framed on 06.09.2017 (exclusion of an extent of 8 ft. 9 inches in CTS No.1904 shown by letter IJEF while allotting shares to defendants No.1 and 3 pursuant to the preliminary decree in O.S.No.27/2001) is answered by remanding the matter to the FDP Court to determine the shares of the parties accordingly. Appeal allowed; judgment and decree dated 12.12.2011 in FDP No.7/2010 and judgment and decree dated 13.07.2012 in RA No.33/2012 set aside; all contentions of the parties kept open.

Procedural history

How this case reached the court

AI extract

Order under challenge
Common judgment and decree dated 26.09.2014 in RA No.19/2012 and RA No.33/2012, dismissing RA No.33/12 and partly allowing RA No.19/2012, challenged in this Regular Second Appeal.¶38
VII Additional District and Sessions Judge, Belagavi sitting at Chikodi (First Appellate Court) · 26.09.2014
Prior proceeding
Smt. Ratnakka filed OS No.27/2001 seeking partition and separate possession of the schedule property.¶40
Prior proceeding
Trial Court decreed OS No.27/2001 on 13.11.2009 holding that plaintiff Smt. Ratnakka and her children Kallappa (defendant No.1) and Shrishail (defendant No.3) are entitled to 1/3rd share each.¶43
Prior proceeding
The OS No.27/2001 decree dated 13.11.2009 was confirmed in RA No.116/2010 and reached finality.¶43
Prior proceeding
Defendant No.1 Kallappa Mallappa Khinnavar filed FDP No.7/2010 under Section 54 of CPC.¶43
Prior proceeding
Original plaintiff Smt. Ratnakka died on 04.01.2010.¶43
Prior proceeding
FDP Court, by judgment and decree dated 12.12.2011, decreed the petition in part, holding that defendant No.3 has developed the property and his right is subject to the decree that may be obtained by the legatee of Smt. Ratnakka in OS No.188/2012.¶43
Prior proceeding
Defendant No.1 and defendant No.3 preferred RA No.19/2012 and RA No.33/2012 against the FDP decree.¶45
Prior proceeding
First Appellate Court, by judgment and decree dated 13.07.2012, remanded the matter to the Trial Court for fresh consideration.¶45
Prior proceeding
Defendant No.3 filed MSA No.651/2012 and MSA No.652/2012 before this Court against the remand orders.¶45
Prior proceeding
This Court, by judgment and decree dated 05.02.2014, allowed MSA No.651/2012 and MSA No.652/2012 and set aside the remand judgments dated 13.07.2012 in RA No.19/2012 and RA No.33/2012.¶45
Prior proceeding
After the MSAs, the First Appellate Court heard the parties and passed the common judgment and decree dated 26.09.2014, dismissing RA No.33/12 and partly allowing RA No.19/2012, prompting the present appeal.¶45