Second appeal against dismissal of a partition suit by the children of one co-owner against another branch. Courts below held the suit was a partial partition omitting other joint family properties. The High Court found no substantial question of law and dismissed the appeal.
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 15TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1085 OF 2021 (PAR)
BETWEEN:
S/O LATE B V MUNEGOWDA AGE 36 YEARS R/AT NO.1277, MUTTURU BEEDI NEAR SHREE RAGHAVENDRASWAMY TEMPLE SHIDLAGHATTA TOWN AND TALUK CHIKKABALLAPURA DISTRICT - 562 105
Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA
NEAR SHREE RAGHAVENDRASWAMY TEMPLE
SHIDLAGHATTA TOWN AND TALUK CHIKKABALLAPURA DISTRICT - 562 105
R/AT NO.1277, MUTTURU BEEDI NEAR SHREE RAGHAVENDRASWAMY TEMPLE SHIDLAGHATTA TOWN AND TALUK
CHIKKABALLAPURA DISTRICT - 562 105
W/O PILLEGOWDA, AGE 50 YEARS
R/AT PATRENAHALLI VILLAGE AND POST
CHIKKABALLAPURA TALUK AND DISTRICT -562 103
R/AT PATRENAHALLI VILLAGE AND POST CHIKKABALLAPURA TALUK AND DISTRICT -562 103
…APPELLANTS
(BY SRI. MUNIRAJU V., ADVOCATE)
AND:
R/AT MUTTURU BEDI NEAR SHREE RAGHAVENDRASWAMY TEMPLE SHIDLAGHATTA TOWN AND TALUK CHIKKABALLAPURA DISTRICT- 562 105
NEAR SHREE RAGHAVENDRASWAMY TEMPLE SHIDLAGHATTA TOWN AND TALUK CHIKKABALLAPURA DISTRICT- 562 105
NEAR SHREE RAGHAVENDRASWAMY TEMPLE SHIDLAGHATTA TOWN AND TALUK CHIKKABALLAPURA DISTRICT- 562 105
AGE 32 YEARS R/AT MUTTURU BEDI NEAR SHREE RAGHAVENDRASWAMY TEMPLE SHIDLAGHATTA TOWN AND TALUK CHIKKABALLAPURA DISTRICT- 562 105
5. SMT MANJULA
W/O LATE B V MUNEGOWDA W/O MUNIKRISHNA AGE 42 YEARS R/AT NADAVATTI VILLAGE, KADUGODI POST BENGALURU - 560 005
R/AT PATRANAHALLI VILLAGE AND POST CHIKKABALLAPURA TALUK AND DISTRICT -562 103
…RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 12.01.2021 PASSED IN RA.No.70/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, CHIKKABALLAPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 07.03.2017 PASSED IN OS No.12/2008 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, CHIKKABALLAPURA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
NC: 2024:KHC:41652 RSA No. 1085 of 2021
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellants challenging the judgment and decree dated 12.01.2021 passed in R.A.No.70/2017 by the learned Principal Senior Civil Judge and CJM, Chikkaballapura and judgment and decree dated 07.03.2017 passed in O.S.No.12/2008 by the learned I Additional Civil Judge and JMFC, Chikkaballapura.
The plaintiffs filed a suit for partition and separate possession in regard to the suit schedule property. It is the case of the plaintiffs that one B.V.Munegowda was the original propositus. He had two wives, i.e., defendants
Nos.1 and 2 and plaintiffs Nos.1 to 5 and defendants Nos.3 to 7 are the sons and daughters of late B.V.Munegowda, i.e., original propositus who had purchased the property from one Erappa S/o, Papanna under registered sale deed dated 23.02.1979. The said Munegowda was the absolute owner of the suit schedule property. The plaintiffs and defendant Nos.1 to 7 are in joint possession and enjoyment of the suit schedule property. The plaintiffs came to know that defendant Nos.1 to 7 was colluding with defendant No.8, trying to alienate the suit schedule property. It is contended that plaintiffs and defendant Nos.1 to 7 are members of the Hindu Undivided Family, and no partition is effected between the plaintiffs and defendant Nos.1 to 7. The plaintiffs requested the defendants to effect the partition, but the defendants refused. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly prays to decree the suit with costs.
NC: 2024:KHC:41652 RSA No. 1085 of 2021
statement. Defendant Nos.1 to 4, 6 and 7, despite service of summons, have remained absent and placed exparte. Defendant No.5 filed a written statement denying the averments made in the plaint and prays to dismiss the suit.
6. The trial Court, based on the above-mentioned
pleadings, framed the relevant issues.
was examined as PW.1, examined two witnesses as PWs.2 and 3 and marked 11 documents as Exs.P1 to 11. Legal
heir of defendant No.8 was examined as DW.1, and marked 70 documents as Exs.D1 to 70. The trial Court, after recording the evidence, hearing on both sides and on the assessment of oral and documentary evidence, dismissed the suit of the plaintiffs vide judgment dated 07.03.2017. The defendants, aggrieved by the preliminary decree passed by the trial Court, preferred an appeal in R.A.No.70/2017 on the file of learned Principal Senior Civil Judge and CJM, Chikkaballapur. The first Appellate Court, after hearing the learned counsel for the parties, and on assessment of oral and documentary evidence, dismissed the appeal with costs vide judgment dated 12.01.2021. The plaintiffs, aggrieved by the impugned judgments, have filed this regular second appeal.
the courts below, without properly considering the evidence placed on record, have passed the impugned
judgments. He submits that plaintiffs have included all the properties. The trial Court has committed an error in recording the finding that the suit for partial partition is not maintainable. Hence, the impugned judgments passed by the courts below are arbitrary and erroneous. Hence, on these grounds, prays to allow the appeal.
submissions of the learned counsel for the plaintiffs.
were owned and possessed by their father and that defendants Nos.1 to 7 sold the properties in favour of defendant No.8 under a registered sale deed. The said sale deed was executed, and defendants Nos.1 and 2 sold the suit schedule property in favour of defendant No.8 on 30.12.2002, as per Section 6 of the Hindu Succession (Amendment )Act, 2005. The said sale transaction is saved; any transaction that took place prior to 20.09.2004 is saved. Admittedly, the sale deed was executed on 30.12.2002. The first appellate court has rightly recorded the finding that the plaintiffs have failed to prove that suit schedule property is the joint family property of the plaintiffs and defendants, and further, the plaintiffs have filed a suit. As observed above, the plaintiffs, without including other properties, have filed suit for partition and separate possession. The suit for partial partition is not maintainable, as held by the Hon'ble Apex Court in the case of S. SATNAM SINGH & ORS VS SURNDER KAUR &
ANOTHER REPORTED IN AIR 2009 SC 1089 disposed of on
02.12.2008, held in para No.16, which reads as under:
'16. Before adverting to the rival contentions of the parties, it must be kept in mind the principle that ordinarily a party should not be prejudiced by an act of court. It must also furthermore be borne in mind that in a partition suit where both the parties want partition, a defendant may also be held to be a plaintiff. Ordinarily, a suit for partial partition may not be entertained. When the parties have brought on records by way of pleadings and/or other material that apart from the property mentioned by the plaintiff in his plaint, there are other properties which could be a subject matter of a partition, the court would be entitled to pass a decree even in relation thereto.'
also by the Division Bench of this court in the case of G M
MAHENDRA VS.G M MOHAN reported in 2011 (4) KCCR 2461 . Both the courts below have rightly recorded the findings that the suit for partial partition without including other joint family properties is not maintainable. Hence, I do not find any error in the impugned judgments or any substantial questions of law that arise for consideration in this appeal.
NC: 2024:KHC:41652 RSA No. 1085 of 2021
ORDER
The appeal is dismissed.
Judgments and decrees passed by the courts below are hereby confirmed.
No order as to the costs.
In view of disposal of the appeal, I.A.No.2/2021 does
not survive for consideration and accordingly disposed of.
Sd/(ASHOK S.KINAGI) JUDGE
SKS
1 issue framed by the court
Whether a suit for partial partition excluding other joint family properties is maintainable.
Colour shows how this judgement treated each authority
S. Satnam Singh & Ors vs Surnder Kaur & AnotherRelied on¶11
AIR 2009 SC 1089 · Who else cites this
Tukarm vs Sambhaji and OthersRelied on¶12
ILR 1998 KAR 681 · Who else cites this
G M Mahendra vs G M MohanRelied on¶12
2011 (4) KCCR 2461
2 provisions across 2 enactments
Niranjan Babu
Ramamani
Kiran
Ashwathamma
Sharadamma
Lakshmamma
Ashok S. Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
