The High Court
Case Details
- 1 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2025 PRESENT THE HON'BLE MR JUSTICE K.SOMASHEKAR AND THE HON'BLE MR JUSTICE VENKATESH NAIK T REGULAR FIRST APPEAL NO. 550 OF 2019 (PAR) RFA CROSS OBJECTION NO. 21 OF 2022(PAR) C/W IN RFA No. 550/2019 BETWEEN: SMT. VEENA D/O LATE H MAREGOWDA W/O SRI B K MANJUNATH AGED ABOUT 55 YEARS R/A NO.550, 10TH A MAIN 5TH BLOCK, JAYANAGAR BENGALURU-560041. (BY SRI. M ASWATHANARAYANA REDDY - ADVOCATE) …APPELLANT AND: 1. SMT. M C JAYALAKSHMI DEAD BY HER LRS 2. SRI C M GOWDA SINCE DEAD BY HIS LRS Digitally signed by SUMATHY KANNAN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 1. SMT MAMATHA AGE:MAJOR W/O LATE C M GOWDA 2. KUM. SINCHANA D/O LATE C M GOWDA AGE:MAJOR 3. SRI MANISH S/O LATE C M GOWDA AGE:MAJOR ALL ARE R/A NO.25 LAKSHMIPURA DASANAPURA HOBLI BENGALURU NORTH TALUK. 4. SRI M BHASKAR S/O LATE H MAREGOWDA AGED ABOUT 57 YEARS R/A NO.81/1, 7TH MAIN 4TH STAGE, BASAVESHWARANAGARA BENGALURU-560079. 5. SRI M BALAJI S/O LATE H MAREGOWDA AGED ABOUT 54 YEARS R/A NO.25, LAKSHMIPURA DASANAPURA HOBLI BENGALURU NORTH TALUK. 6. DR M MAYADEVI D/O LATE H MAREGOWDA AGED ABOUT 53 YEARS W/O DR CLETUS CARVALHO PRESENTLY R/A NO.347 BLAZER PRURY, LEXINGTON, KY 40520 UNITED STATE OF AMERICA. …RESPONDENTS - 3 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 (BY SRI. MANJU BRYAL – ADVOCATE FOR RESPONDENT NO.3, SRI. ABHINAY Y T – ADVOCATE FOR RESPONDENT NO.4; RESPONDENT NO.1 & 5 ARE SERVED; VIDE COURT ORDER DATED 22.09.2022 AND 09.12.2022, NOTICE TO RESPONDENT NO.6 AND LRs’ OF DEFENDANT NO.2 I.E., LRs’ OF D2(1 & 2) IS HELD SUFFICIENT) THIS RFA FILED UNDER SECTION 96 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 20.02.2019 PASSED IN OS.NO.6423/2009 ON THE FILE OF THE XXII-ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. IN RFA.CROB NO. 21/2022 BETWEEN: M BHASKAR S/O LATE H MAREGOWDA AGED ABOUT 59 YEARS AND EARLIER RESIDING AT NO.81/7, 7TH MAIN, 4TH STATE BASAVESHWARANAGAR BENGALURU-560079. PRESENTLY RESIDING AT LAKSHMIPURA VILLAGE DASANAPURA HOBLI BENGALURU NORTH TALUK BENGALURU-560080. (BY SRI. ABHINAY Y T - ADVOCATE) ...CROSS OBJECTOR - 4 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 AND: 1. SMT VEENA DAUGHTER OF LATE H MAREGOWDA WIFE OF BK MANJUNATH AGED ABOUT 50 YEARS AND RESIDING AT NO.550 10TH A MAIN, 5TH BLOCK JAYANAGAR, BENGALURU-560004. 2. DR MAYADEVI M DAUGHTER OF LATE H MAREGOWDA WIFE OF DR CLETUS CARVALHO AGED ABOUT 46 YEARS AND RESIDING AT NO.3470 BLAZER PRWY LEXINGTON, KY 40590 UNITED STATE OF AMERICA. 3. SMT MAMATHA WIFE OF LATE CM GOWDA AGED MAJOR 4. SINCHANA DAUGHTER OF LATE CM GOWDA AGED MAJOR 5. MANISH SON OF LATE CM GOWDA AGED MAJOR 6. M BALAJI SON OF LATE H MARE GOWDA AGED 58 YEARS RESPONDENTS NO.3 TO 6 ARE RESIDING AT NO.25, LAKSHMIPURA DASANAPURA HOBLI BENGALURU NORTH TALUK. ...RESPONDENTS - 5 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022
Legal Reasoning
(BY SRI. M ASWATHANARAYANA REDDY.,ADVOCATE FOR RESPONDENT NO.1 & 2, VIDE COURT ORDER DATED 29.11.2023, NOTICE TO RESPONDENT NO.3 TO 6 HELD SUFFICIENT) NOTE: 1) SMT. JAYALAKSHMI M C – DEFENDANT NO.1 DIED DURING THE PENDENCY OF THE SUIT. THE PARTIES TO THE SUIT BEING HER LEGAL HEIRS REPRESENT HER ESTATE. HER DEATH WAS REPORTED IN THE SUIT. BY INADVERTENCE, HER NAME IS SHOWN IN THE TITLE OF THE JUDGMENT. 2) RESPONDENT NO.3 TO 5 ARE THE WIFE AND CHILDREN OF CM GOWDA – DEFENDANT NO.2 WHO DIED ON 22.02.2019 AFTER THE DISPOSAL OF THE SUIT. HENCE, THEY ARE ARRAYED AS PARTIES TO THIS APPEAL. THIS RFA.CROB FILED UNDER ORDER 41 RULE 22 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 20.02.2019 PASSED IN OS.NO.6423/2009 ON THE FILE OF THE XXII-ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN SO FAR AS IT RELATES TO THE FINDING OVER ISSUE NO.3 AND REJECTION OF COUNTER CLAIM AND TO CONSEQUENTLY DECREE THE COUNTER CLAIM OF THE 3RD DEFEDANT IN ITS ENTIRETY. THESE RFA AND RFA.CROB, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 6 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR AND HON'BLE MR JUSTICE VENKATESH NAIK T ORAL JUDGMENT (PER: HON'BLE MR JUSTICE K.SOMASHEKAR) The appeal in RFA No.550/2019 is filed by the appellant / Smt. Veena under Section 96 of the CPC, being aggrieved by the judgment and decree dated 20.02.2019 passed by the XXII Addl. City Civil and Sessions Judge, Bengaluru, in the suit in O.S.No.6423/2009. 2. The RFA Crob.No.21/2022 is filed under Order 41 Rule 22 CPC by the Cross-Objector / M. Bhaskar, praying to set aside the impugned order insofar as it relates to the finding over Issue No.3 and rejection of counter claim and to consequently decree the counter claim of the 3rd defendant in its entirety. 3. Both this appeal and cross objection being inter- connected, are taken up for hearing together and are disposed of by this common order. The parties shall - 7 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 shereinafter be referred to as per their ranks before the Trial Court, for the sake of convenience. 4. We have heard the learned counsel Shri M. Ashwathanarayana Reddy for appellant in RFA No.550/2019 who is also representing Respondent Nos.1 and 2 in RFA.Crob.21/2022. Further, we have heard the learned counsel Shri Abhinay Y.T. for Respondent No.4 in RFA No.550/2019 and who is representing the Cross Objector in RFA Crob No. 21/2022. Further, we have heard the learned counsel Shri Manju Byrad appearing for Respondent No.3 in RFA No.550/2019. Respondent Nos.1 and 5 in RFA No.550/2019 are served. Further, notice to R6 and the LRs of Defendant No.2 (1 and 2) / Respondent No.2, is held sufficient in respect of RFA No.550/2019. Further, notice to Respondent Nos.3 to 6 in RFA Crob.21/2022 is held sufficient. 5. These appeals arise out of the judgment and decree dated 20.02.2019 rendered by the XXII Addl. City Civil and Sessions Judge, Bengaluru in O.S. No. - 8 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 6423/2009, filed for partition and separate possession of certain schedule properties. The plaintiffs in the Trial Court / appellants herein being sisters, filed the said suit seeking for partition and separate possession against the defendants in the Trial Court / respondents herein being their mother and three sons. The plaintiffs claimed their shares, asserting that the suit properties stand in the name of their mother/wife (a female Hindu) and hence belong to her absolute estate. The defendants in the Trial Court / Cross-objectors herein, filed a counter-claim contending that the properties were acquired by the deceased husband/father out of joint family funds and should be treated as joint family property. 6. The case plot is summarised as follows: The plaintiffs, Smt. Veena and Dr. Mayadevi M. instituted O.S. No. 6423 of 2009 before the XXII Additional City Civil and Sessions Judge, Bengaluru, seeking partition and separate possession of their alleged shares in the properties left behind by their deceased - 9 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 father, late H. Maregowda. Late H. Maregowda, the adopted son of A.M. Chenna Maregowda and Smt. Mayamma, passed away intestate in the year 1989, leaving behind his widow, Smt. M.C. Jayalakshmi, and five children — three sons, namely, Sri C.M. Gowda, Sri M. Bhaskar and Shri M. Balaji, and two daughters, the plaintiffs. 7. The plaintiffs claimed that the members of the family constituted a Hindu Undivided Family governed by Mitakshara law, and that several immovable properties situated in various localities including Lakshmipura, Gavipalya, and Adakimaranahalli in Bangalore Urban and Rural Districts remained undivided among the heirs. The suit schedule consisted of forty-six items, including residential houses, commercial buildings, vacant sites, and agricultural lands. It was alleged that subsequent to the death of H. Maregowda, no formal partition had been effected among the family members. - 10 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 8. During the pendency of the proceedings, Defendant No. 5, namely Dr. Mayadevi M., filed an application seeking transposition as Plaintiff No. 2, claiming an independent right to the share in the properties. The Trial Court allowed the said application, and accordingly, the cause title was amended to reflect her as the second plaintiff. Notices were issued to the defendants. Defendant No. 1, Smt. M.C. Jayalakshmi, remained ex parte and subsequently passed away during the pendency of the proceedings. A memo was filed recording her death and stating that her legal representatives were already on record as the plaintiffs and the surviving defendants. 8. Written statements were filed separately by Defendant Nos. 2, 3, and 4. Defendant No. 3, Sri M. Bhaskar, apart from filing a written statement, also set up a counter-claim in respect of certain properties contending rights therein. The Trial Court framed the following seven issues for determination based on the pleadings: - 11 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 “1. Whether the plaintiffs No.1 and 2 prove that suit schedule properties are undivided joint Hindu family properties of plaintiffs and defendants? 2. Whether 3rd defendant proves that Shri Maregowda had inherited 1/4th share in suit properties being coparcenary properties of his family? 3. Whether 3rd defendant proves that written statement properties were acquired out of the income derived from coparcenary properties as contended in para No.33 of his written statement? 4. Whether the defendant No.3 proves that plaintiff No.2 is barred from inheriting any property as per Hindu Succession Act as contended in para No.35 of his written statement? 5. Whether plaintiffs are entitled to relief of partition and separate possession on their 1/6th share in the suit properties? 6. Whether plaintiffs entitled to mesne profit? 7. What order or Decree?” 9. In support of their case, the first plaintiff, Smt. Veena, was examined as PW-1 and Exs.P1 to P136 were marked on behalf of plaintiffs. She was cross-examined by - 12 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 Defendant No. 3. The other defendants did not cross- examine the plaintiffs or adduce oral evidence on their behalf at that stage. Subsequently, the matter was posted for defendants' evidence. Defendant No. 3, who had filed a counter-claim, sought several adjournments but eventually examined nineteen witnesses in support of his defence and counter-claim, and marked documents as Exs.D1 to D54. He examined himself as DW-20. Defendant No. 2, though having filed a written statement, neither cross-examined the witnesses nor entered the witness box to substantiate his stand. Defendant No. 4 cross-examined DW-20 but did not adduce independent evidence. 10. Upon closure of evidence, the matter was heard. Both sides relied upon documentary records and citations. The Trial Court answered Issue Nos.1 and 2 framed in the affirmative, Issue Nos.3 and 4 in the negative, Issue No.5 partly in the affirmative, Issue No.6 in the negative and Issue No.7 as per the final order. Accordingly, the Trial Court on hearing both the parties and on examination of - 13 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 the evidence on record inclusive of the exhibited documents, by its judgment and decree dated 20.02.2019, partly decreed the suit. It granted the plaintiffs a 1/20th share each in the suit schedule properties, while rejecting the counter-claim filed by Defendant No. 3. After the pronouncement of the judgment, Defendant No. 2, Sri C.M. Gowda, passed away on 22.02.2019. His legal heirs were brought on record during the course of appellate proceedings. 11. Aggrieved by the judgment and decree dated 20.02.2019, insofar as it restricted their share to 1/20th instead of 1/6th, the plaintiffs preferred Regular First Appeal No. 550 of 2019 before this Hon’ble Court. Simultaneously, Defendant No. 3, Sri M. Bhaskar, aggrieved by the rejection of his counter-claim, filed Cross-Objection No. 21 of 2022 challenging the findings of the Trial Court regarding issue No. 3 and seeking decree of his counter-claim. - 14 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 12. The learned counsel Shri M. Aswathanarayana Reddy for appellant argued that the trial Court misapplied the law of succession. By virtue of Section 14(1) of the Hindu Succession Act, 1956 (“HSA Act”), any property possessed by a Hindu female is her absolute property, and the female has full powers of disposition. Once an immovable property is shown to be in the name of the wife or daughter, it is presumed not to be part of a joint family estate, unless contrary is proved. The appellants' counsel argue that in the present case, Ex.D.28 (the registered partition deed dated 02.10.1939) and Ex.D.29 (the registered adoption deed dated 01.07.1940), are conclusive evidence that the suit lands were purchased out of the wife’s income, making her the full owner. The trial Court, by disregarding these documents, ignored that Section 14(1) of the HSA Act casts the initial burden on the party claiming joint family property, to prove its identity. - 15 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 13. The learned counsel for the appellant has pointed out to binding precedents. In Rangamma v. Nagarathnamma (AIR 2009 SC 2561), the Hon’ble Supreme Court held that Section 14(1) of the HSA Act must be interpreted “in a very comprehensive manner”, conferring a female Hindu all powers of disposition over her property so that it is heritable by her own heirs and not revertible to the male line. They also rely on Marabasappa v. Ningappa [(2011) 9 SCC 451], where it was reiterated that stridhana (woman’s self-acquired or inherited property) is inviolably hers (citing Section 14(1)) and cannot be deemed joint property without positive proof. In Marabasappa’s case, as in Rangamma, the Supreme Court reversed a High Court decision that had erroneously treated the wife’s acquisitions as Joint Family Property, emphasising that mere assertions of joint family funding, failed without evidence. 14. The learned counsel for appellant urges that the trial Court failed to discharge the basic burden of proof - 16 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 placed on those seeking to establish joint family status. He contends that neither Ex.D.28 nor Ex.D.29 is countered by any proper rebuttal: the respondents only speculated that the husband’s income funded them. The appellants note that Ex.D.19 (family ledger) shows personal earnings, and that none of the purchase deeds bear any marks of family consent. In the absence of admission or cogent evidence, the trial Court’s conclusion that the properties are joint family properties, was “perverse” and contrary to law. 15. Concerning the appeal grounds, the learned counsel for the appellant also urges that the trial Court erred in treating the properties claimed by way of counter- claim. In their written statement and counter-claim, the appellants had claimed certain schedule properties of the written-statement as their own (Ex.P.135 schedule), and the respondents’ cross-objection must fail since no separate decree on that counter-claim was passed. - 17 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 16. By summing up, the learned counsel for appellant submits that the trial Court misinterpreted Sections 6, 6A, 14, etc. of the Hindu Succession Act and failed to follow the legal principle that a woman’s property recorded in her name stands outside the joint family domain. He contends that, in light of the evidentiary gaps and legal misapplication, the decree is unsustainable in the eye of law. 17. The learned counsel Shri Abhinay Y.T. for the Cross objectors in RFA Crob.21/2022 submits that the purchased properties (particularly item Nos.5 to 8 in the suit schedule) were bought out of joint family earnings. In the counter-claim (RFA CROB 21/2022), they pleaded that late H.Maregowda, their father, had a thriving business and that the entire family’s funds (Ex.D.19, D12, D17, etc.) were pooled, to buy these lands. They argue that Section 6 of the HSA (before amendment), barred daughters from coparcenary rights, and thus the properties purchased by the father remained joint property - 18 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 to which daughters had no claim by birth. They rely on the unamended law as applicable at the time the father acquired the lands, so that all sons (or surviving children) share by survivorship. 18. The cross-objectors further assert that even if the properties are in the mother’s name, the husband (whose name was omitted) held them as a nominee for the joint family, akin to a patriarchial purchase for common use. They claim that the presumption of joint family property applies once a male head’s name is omitted, unless effectively rebutted. Thus, they argue the trial Court rightly treated them as family estate. 19. With respect to the counter-claim of the original defendants, the cross-objectors submit that the trial Court should have dismissed it as time-barred or inadequately pleaded, since the appellants never proved that other properties (Ex.P.136 schedule) were indeed purchased by them. In any event, they say, the decree in - 19 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 O.S.6423/2009 ought to stand as it is because the plaintiffs succeeded in part. 20. Legally, the cross-objectors invoke older precedents (pre-2005 amendments), arguing that at the time of acquisition, Section 6 of HSA did not recognize daughters as coparceners, so the presumption of joint family status remains intact. They contend that the case of Rangamma and Marabasappa cannot automatically negate joint title without addressing the timeline and facts. (In truth, the case of Rangamma and Marabasappa pre-date the 2005 amendment but dealt with S.14 and stridhana; the cross-objectors may argue they have limited applicability.) 21. Learned counsel Shri Abhinay Y.T. for the Cross- objectors has taken a specific contention in RFA Crob.21/2022 that out of Item Nos.1 to 46, some of the properties have been left out while effecting partition of the suit schedule properties. Therefore, in this appeal, he has filed I.A.No.2/2024 under Order XLI Rule 27 CPC - 20 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 praying for production of documents at a later stage and in that application, he has specifically charted out the properties which were required to be considered. Apart from that application, another application I.A.No.1/2024 is filed under Order VI Rule 17 of the CPC praying to permit Defendant No.3 / Cross-objector to amend his written statement. However, the prayer in the said applications have been opposed by the learned counsel Shri M. Aswathanarayana Reddy. The learned counsel Shri Abhinay Y.T. submits that the said applications also require to be considered while disposing of these appeals. 22. Thus, the learned counsel for the cross-objectors pleads that the trial Court’s factual findings should not be disturbed as there is adequate evidence to support the joint-family character of the properties, and the law (especially as amended) does not entitle daughters to override that. 23. In the context of contentions advanced by the learned counsel for the appellant as well as the cross - 21 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 objectors, it is relevant to state that the present Regular First Appeal as well as RFA Cross Objection arises out of the judgment and decree dated 20.02.2019 passed by the XXII Additional City Civil and Sessions Judge, Bengaluru, in O.S. No. 6423/2009, which was a suit for partition and separate possession. 24. Upon careful consideration of the submissions, pleadings, and documentary evidence, this Court finds that the Trial Court has committed significant errors of law by not adequately considering the statutory implications under Sections 6, 6A, 8, and 14(1) of the Hindu Succession Act, 1956 ("HSA"). 25. It is well-established that, under Section 14(1) of the HSA Act, any property standing in the name of a female Hindu is presumed to be her absolute property unless proven otherwise by strong and cogent evidence. The appellants have presented registered sale deeds (Ex.D.28 and Ex.D.29) demonstrating that the properties in dispute were purchased from the earnings of the female - 22 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 members, invoking the presumption of absolute ownership under Section 14(1) of the HSA Act. The respondents have not effectively rebutted this presumption with any credible documentary evidence. 26. Further, the trial Court inadequately applied Section 6A of the HSA (Karnataka Amendment, effective from 1994) and Section 6 as amended in 2005. Under these provisions, daughters are recognized as coparceners from birth, enjoying equal rights as sons. The trial Court's judgment lacks analysis of these critical statutory amendments and consequently fails to determine properly, the share of the appellant. 27. Moreover, the Trial Court's judgment is conspicuously silent on evaluating key exhibits, such as Ex.D.19 (family accounts ledger), which were critical in determining the source of funds utilized to purchase the disputed properties. It is a settled principle reiterated by the Hon’ble Supreme Court in the cases of Rangamma v. Nagarathnamma (AIR 2009 SC 2561) and - 23 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 Marabasappa v. Ningappa [(2011) 9 SCC 451], that properties standing in the name of a woman are presumed to be her absolute estate, unless conclusively proven otherwise. 28. Additionally, the trial Court's treatment of the counter-claim filed by Defendant No.3 is unsatisfactory, lacking detailed consideration and explicit findings. It is essential that the counter-claim be reconsidered in line with established principles governing coparcenary property and partition suits. 29. Given these substantial legal and evidentiary oversights, this Court finds that a fair and just resolution mandates a remand to the trial Court to address and rectify these shortcomings. In this regard, it is relevant to refer to the principles of remanding a matter. In order to remand a matter back to the trial Court for fresh consideration, it is just and necessary to analyse Order XLI, Rule 23 of the Code of Civil Procedure, 1908 (for short, 'CPC'), which read as under: - 24 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 "Rule 23. Remand of case by Appellate Court.—: Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand." 30. Further, as per Order XLI, Rule 23A of CPC, the Appellate Court may remand a case, where it considers necessary to do so, in the interest of justice. 31. A conjoint reading of Order XLI, Rules 23, 23A and 24 of CPC brings forth the scope as also contours of the powers of remand that, when the available evidence is - 25 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 sufficient to dispose of the matter, the proper course for this Court is to follow the mandate of Order XLI, Rule 24 of CPC and to determine the appeal of the appellants, whether it requires remand or not. It is only in this circumstance, where the decree in challenge is reversed in appeal and a re-trial is necessary that the Appellate Court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. 32. Whereas keeping in view the submission made by the learned counsel for the appellant in RFA No.550/2019 and so also equally the contention made by the learned counsel for the Cross-Objector in RFA Crob.21/2022, partition of Item Nos.1 to 46 of the suit schedule properties depicted therein in detail, requires to be decided in the suit initiated by plaintiffs against the defendants seeking partition. - 26 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 33. Learned counsel Shri Abhinay Y.T. for the Cross- Objector in RFA Crob.No.21/2022 has taken specific contention that while effecting partition, certain properties out of the suit schedule Item Nos.1 to 46 have been left out and those properties are required to be blended in the suit initiated by the plaintiff against the defendant. To that effect, in the aforesaid RFA Crob.No.21/2022, he has also filed an application I.A.No.2/2024 under Order 41 Rule 27 CPC seeking production of additional documents as additional evidence for proper adjudication of the issues in between the plaintiffs and defendants. Similar contention has been taken by filing an application I.A.No.1/2024 under Order 6 Rule 17 CPC for seeking amendment of the written statement of the 3rd defendant, which is stated therein in detail. 34. In view of the foregoing discussions we deem it just and appropriate that the judgment and decree passed by the trial Court requires to be set-aside and the matter requires to be remanded to the trial Court for a de novo - 27 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 consideration. Accordingly, we proceed to pass the following:
Decision
ORDER RFA No.550/2019 as well as RFA.Crob.No.21/2022 are allowed in part with the following directions: i) The judgment and decree dated 20.02.2019 rendered by the Court of the XXII Addl. City Civil & Sessions Judge, Bengaluru in O.S.No.6423/2009, is set aside. ii) The suit in O.S.No.6423/2009 is thus remanded to the Court of the XXII Addl. City Civil & Sessions Judge, Bengaluru for a de novo consideration, in accordance with law. iii) Both the respective parties to the proceedings shall be afforded an opportunity of hearing, by permitting the parties to lead fresh evidence as well. - 28 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 iv) All contentious contentions of both the parties are kept open. v) Any observation made in this order shall not influence the mind of the Trial Court while disposing the suit initiated by the plaintiffs against the defendants. vi) The suit having been initiated by the plaintiffs in the year 2009, it is hereby directed that the said suit in O.S.No.6423/2009 shall be disposed of by the XXII Addl. City Civil & Sessions Judge, Bengaluru, within a outer limit of four months from the date of receipt of a certified copy of this order. vii) The application I.A.No.1/2024 filed in RFA Crob.21/2022 praying to permit Defendant No.3 / Cross Objector to amend his written statement and the application I.A.No.2/2024 filed in RFA Crob.21/2022 praying to permit the Cross Objector to produce the documents stated therein as additional evidence, shall be - 29 - NC: 2025:KHC:17181-DB RFA No. 550 of 2019 C/W RFA.CROB No. 21 of 2022 decided by the Trial Court by giving an opportunity of hearing to both the parties. viii) The appellants and respondents respectively in these appeals are directed to appear before the Trial Court in O.S.No.6423/2009, on 03.06.2025 without waiting for notices / summons from the Trial Court and they are directed to expedite the matter without seeking any adjournments. ix) No order as to costs. Before parting with this judgment, this Court places on record its deep appreciation for the able research and assistance rendered by its Research Assistants, namely Mr.Pranav.K.B , Ms. Sushmithaa Roshini R. SD/- (K.SOMASHEKAR) JUDGE SD/- (VENKATESH NAIK T) JUDGE KS