In this second appeal regarding a suit for partition, the High Court dismissed the challenge to the lower courts' judgment. The court held that the sale of ancestral properties by a partitioned co-parcener was valid and saved under Section 6 of the Hindu Succession Act, 1956. Consequently, the appellant's claim for separation of share was not allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1479 OF 2016 (PAR)
BETWEEN:
SRI. RAJASHEKAR S/O LATE F N NANJAPPA, AGED 39 YEARS R/AT MULUSOGE VILLAGE, KHUSHALANAGAR HOBLI, SOMAWARAPET TALUK, MADIKERE DISTRICT-571 234
…APPELLANT
(BY SRI. MANJESH H M, ADVOCATE)
AND:
F N NANJAPPA
Digitally signed by SUNITHA GANGARAJU
Location: High Court of Karnataka
S/O LATE S K NANJAPPA DEAD BY LEGAL REPRESENTATIVES
W/O LATE F N NANJAPPA, AGED 69 YEAR R/AT BETTADAPURA VILLAGE, PERIYAPATTNA TALUK, MYSORE DISTRICT-571 102
SRI K M BALAKRISHNA S/O K S MADAIAH
DEAD BY LEGAL REPRESENTATIVES
…RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC.,1908 AGAINST THE JUDGMENT AND DECREE DATED 04.06.2016 PASSED IN RA.NO.14/2015 ON THE FILE OF THE I ADDL. DISTRICT JUDGE, KODAGU, MADIKERI DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 12.02.2015 PASSED IN OS.NO.16/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADIKERI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellant challenging the judgment and decree dated 04.06.2016, passed in R.A.No.14/2015 by the I Additional District Judge, Kodagu at Madikeri, confirming the judgment and decree dated 12.02.2015 passed in O.S.No.16/2007 by the Senior Civil Judge at Madikeri.
to as per their ranking before the trial Court. The appellant is the plaintiff and respondents are the defendants.
Plaintiff filed a suit for partition and separate possession in respect of the suit schedule properties. It is the case of the plaintiff that one Sri S.K.Nanjappa was the propositus of the family who had six children i.e.,
F.N.Nanjappa – defendant No.1, M.N.KAPANAPPA, M.N.Basappa, M.B.Bogappa, M.N.Manjunatha and M.N.Chandrashekar. Defendant No.1 married to Smt. Sarojamma i.e., defendant.No.1(a). The plaintiff and defendant Nos.2 to 5 are the children of Nanjappa i.e., defendant No.1. It is the case of the plaintiff that the suit schedule properties are the joint family properties of the plaintiff and the defendant Nos.1 to 5. There was a partition in between defendant No.1 and his brother on 16.03.2005. In the said partition, the suit schedule properties were fallen to the share of defendant No.1. The said partition was effected through a registered partition deed. On the strength of the registered partition deed, name of defendant No.1 was entered in the revenue records in respect of the suit schedule properties. The plaintiff and defendant No.s.1 to 5 are in joint possession over the suit schedule properties. It is contended that item No.1 of the suit schedule properties was sold by defendant No.1 in favour of defendant No.6 under a registered sale deed dated 26.11.2001 and he also sold
item No.2 in favour of defendant No.7 under a registered sale deed dated 10.09.2001. Defendant No.1 had no absolute right or title over item Nos.1 and 2 of the suit schedule properties to sell the same in favour of defendant Nos.6 and 7. It is further contended that the properties allotted to defendant No.1 under a registered partition deed dated 16.03.2005 are not being divided among the plaintiff and defendant Nos.2 to 5. It is contended that on 12.09.2006, there was a partition between the plaintiff and defendant Nos.1 to 5. Defendant No.1 colluding with defendant Nos.2 to 5 created bogus and fabricated documents and obtained signature of the plaintiff by force, and therefore the partition deed dated 12.09.2006 is not binding on the plaintiff. Hence, on these grounds, he sought to decree the suit for partition and separate possession and also sought for cancellation of the sale deeds dated 26.11.2001 and 10.09.2001.
4. During the pendency of the suit, defendant
No.1 died leaving behind the plaintiff and defendant Nos.2
to 5 as his legal heirs. Defendant Nos.2 to 5 filed the written statement admitting the relationship of the plaintiff with defendant Nos.2 to 5 and they have supported the claim of the plaintiff and they also made a counter claim to allot 4/5th share to them.
contended that defendant No.1 being the kartha and manager of the family has sold the said land in favour of defendant No.6 for consideration of Rs.1,48,000/-. Defendant No.6 denied the averments made in the plaint as well as written statements filed by defendant Nos.2 to 5 and defendant No.1(a).
denying the averments made in the plaint and contending that he has purchased item Nos.1 and 2 of the suit schedule properties from defendant No.1 under a registered sale deed dated 10.09.2001 and he was the bona fide purchaser of value. Hence, prays to dismiss the suit.
pleadings, framed the following issues and additional issues:
ISSUES:
1. Whether the plaintiff proves that, after partition deed dt.16.03.2005 the plaintiff and defendant No.1 to 5 are in joint possession and enjoyment of the suit schedule properties?
2. Whether the plaintiff proves that, he is having 1/6th share in the suit schedule properties?
3. Whether the plaintiff is entitled for partition and separate possession of his share?
4. Whether the plaintiff proves that, partition deed dt.20.09.2006 is void document and it is not binding on the plaintiff?
5. Whether the defendant No.6 proves that, he has purchased the written statement schedule property on 26.11.2001 from the defendant No.1 and it has been in his peaceful possession and enjoyment?
6. Whether the defendant No.6 proves that, there was a registered partition deed dt.05.01.2001 in respect of the family properties of defendant No.1 between defendant No.1 and the persons referred in para-7 of the plaint?
7. Whether the defendant No.7 proves that, item No.2 of suit schedule properties is self acquired property of defendant No.1.?
8. Whether the defendant No.7 proves that, he is bonafide purchaser of the said item from the defendant No.1 through sale deed dt.10.09.2001?
9. Whether the suit is bad for non-seeking relief of cancellation of sale deed?
10. Whether the plaintiff is entitled for the reliefs as prayed for?
11. What order or decree?
Additional Issues framed on 30.07.2012:
1. Whether the defendants No.2 to 5 prove that, they are entitled to each 1/5th share in the suit schedule properties?
Additional Issues framed on 22.08.2013:
1. Whether the plaintiff proves that, the original 1st defendant having no absolute right, title or interest over the suit schedule properties, in spite of that sold some items of the suit schedule properties on 26.11.2001 to the 6th defendant as per registered document
NC: 2023:KHC:37735 RSA No. 1479 of 2016
No.1108/2001-02 sale dated 26.11.2001 of SRO at Somwarpet, Somwarpet Taluk, Kodagu District and the said sale transaction is null and void and not binding over to the plaintiff as the properties in question are the family ancestral properties of plaintiff and the defendants 1(a) to 5?
2. Whether the plaintiff further proves that, the original 1st defendant having no absolute right, title or interest over the suit schedule properties, in spite of that sold some items of the suit schedule properties on 10.09.2001 to the 7th defendant as per registered document No.848/2001-02 sale dated 10.09.2001 of SRO at Somwarpet, Somwarpet Taluk, Kodagu District and the said sale transaction is null and void and not binding over to the plaintiff as the properties in question are the family ancestral properties of plaintiff and the defendants 1(a) to 5?
3. Whether the plaintiff further proves that the said documents are sham, void incorporating false recitals invented and created by the defendants 1, 6 and 7 and the said sale deeds are symbolic one and no title is passed on to the defendants 6 and 7 by virtue of the
above said sale deeds executed by the 1st defendant who had no right over the said properties to execute the same?
entitle for 4/5th share in suit schedule items No.3 to 5 properties and defendants No.1(a), 2 to 5 are directed to put the plaintiff with his 1/5th share in the suit schedule items No.3 to 5 properties and the suit against defendants No.6 and 7 is dismissed.
1. Whether the plaintiff has proved that, the plaintiff and defendant Nos.1 to 5 are entitled to a share in item Nos.1 and 2 of the suit schedule properties?
2. Whether the defendant Nos.6 and 7 have proved that, the relief of cancellation of sale deeds dated 10.09.2001 and 26.11.2001, is barred by limitation and consequently, the suit is liable to be dismissed in so far as item Nos.1 and 2 of the suit schedule properties?
3. Whether the defendant Nos.6 and 7 have proved that the purchase of item Nos.1 and 2 of the suit schedule properties respectively, by them under the sale deeds dated 10.09.2001 and 26.11.2011 from defendant No.1, is valid and the registered partition deed dated 16.03.2005, Ex.P6 does not have any effect on their title?
4. Whether the judgment and decree passed by the Trial Court is required to be interfered with, by this Court?
5. What order?
NC: 2023:KHC:37735 RSA No. 1479 of 2016
12. Heard the learned counsel for the plaintiff.
defendant No.1 has acquired item Nos.1 and 2 under a partition deed dated 16.03.2005. The said properties are the joint family properties of the plaintiff and the defendants. He submits that defendant No.1 had no right to execute a registered sale deed in respect of item Nos.1 and 2 of schedule properties in favour of defendant Nos.6 and 7. The sale deed executed by defendant No.1 in favour of defendant Nos.6 and 7 is not binding on the plaintiff. He submits that the Courts below have committed an error in passing the impugned judgments. Hence, on these grounds, he prays to allow the appeal.
defendant No.1 and his brothers. The said partition was registered on 16.03.2005. In the said partition, item Nos.1 and 2 of the suit schedule property were fallen to the share of defendant No.1. It is contended that the suit properties item Nos.1 and 2 are the joint family properties of the plaintiff and defendant Nos.1 to 5. Defendant No.1
alone had no right to alienate item Nos.1 and 2 of suit schedule properties in favour of defendant Nos.6 and 7. It is further contended that the sale was not for the legal and family necessity. In order to establish his case, the plaintiff examined himself as PW.1 and he has reiterated the plaint averments in the examination-in-chief and produced the documents. From the perusal of the documents, it discloses that the suit schedule properties are the joint family properties of the plaintiff and the defendants. However, defendant No.1 executed a registered sale deed in favour of defendant No.6 on 26.11.2001 and also executed a registered sale deed in favour of defendant No.7 on 10.09.2001.
"129. Resultantly, we answer the reference as under:
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter
born before or after amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in
pending proceedings for final decree or in an appeal.
(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."
judgments and decrees. I do not find any substantial question that arises for consideration in this appeal.
circumstances, I proceed to pass the following:
ORDER
The appeal is dismissed.
Consequently, the judgments and decrees passed by the courts below are confirmed.
No order as to the costs.
In view of dismissal of the appeal, I.A.No.1/2016
does not survive for consideration and is accordingly, disposed of.
Sd/JUDGE
SSB
2 issues framed by the court
Whether the sale of ancestral properties by a partitioned co-parcener is valid and barred the plaintiff from claiming 1/6th share?
Whether the provisions of Section 6 of the Hindu Succession Act, 1956, save dispositions or alienation made before 20.12.2004?
Colour shows how this judgement treated each authority
VINEETA SHARMA VS. RAKESH SHARMA AIR 2020 SC 3717Referred¶103
Sri Rajasekhar S/O Late F N Nanjappa
F N Nanjappa S/O Late S K Nanjappa
Smt Sarojamma
Sri Chandrashekar S/O Late F N Nanjappa
Sri Nataraju S/O Late F N Nanjappa
Sri Basavaraju S/O Late F N Nanjappa
Ashok S. Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
