Smt.Anasuya W/O Khandoba Pawar Vs Smt.Yallawwa W/O Jyotiba Wadakar @ Pawar

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NC: 2025:KHC-D:9059-DB RFA No. 100028 of 2020

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 22^ND DAY OF JULY, 2025

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PRESENT

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THE HON'BLE MR. JUSTICE R.NATARAJ

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AND

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THE HON'BLE MR. JUSTICE RAJESH RAI K REGULAR FIRST APPEAL NO.100028 OF 2020 (PAR/POS)

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BETWEEN:

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SMT.ANASUYA W/O. KHANDOBA PAWAR, (SINCE DECEASED BY HER LRS APPELLANT NO.2 TO 4, WHO ARE ALREADY ON RECORD)

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AMENDED AS PER ORDER DATED 05.12.2024.

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SRI. RAMAKRISHNA @ VINOD S/O. KHANDOBA PAWAR, AGE: 51 YEARS, OCC: AGRICULTURE COOLIE, R/O. DEVARA HUBBALLI VILLAGE, TQ. AND DIST. DHARWAD-580008.

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Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench

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SMT. SAKKUBAI W/O. UMESH CHUDAMANI, AGE: 49 YEARS, OCC: HOUSEHOLD WORK, R/O. LAST BUS STOP, MADIHAL, TQ. AND DIST. DHARWAD-580008.

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SRI. SHRIKANT S/O. KHANDOBA PAWAR, AGE: 46 YEARS, OCC: PRIVATE SERVICE, R/O. DEVARA HUBBALLI VILLAGE, TQ. AND DIST. DHARWAD-580008.

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…APPELLANTS

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(BY SRI. J.S.SHETTY, ADVOCATE)

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AND:

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SMT.YALLAWWA W/O. JYOTIBA WADAKAR @ PAWAR, AGE: 58 YEARS, OCC: HOUSEHOLD WORK, R/O. PYATI ONI, NEAR MAREWADAR SHOP,

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AMMINABHAVI, DIST. DHARWAD-580008.

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SRI. BASAVARAJ S/O. JYOTIBA WADAKAR @ PAWAR, AGE: 27 YEARS, OCC: AGRICULTURE, R/O. PYATI ONI, NEAR MAREWADAR SHOP, AMMINABHAVI, DIST. DHARWAD-580008.

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SRI.SOMAPPA S/O. JYOTIBA WADAKAR @ PAWAR, AGE: 29 YEARS, OCC: AGRICULTURE, R/O. PYATI ONI, NEAR MAREWADAR SHOP, AMMINABHAVI, DIST. DHARWAD-580008.

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JYOTIBA S/O. RAJAPPA WADAKAR @ PAWAR, HIMSELF CALLED AS A/F OF SOMAPPA PAWAR, AGE: 65 YEARS, OCC. AGRICULTURE, R/O. PYATI ONI, NEAR MAREWADAR SHOP, AMMINABHAVI, DIST. DHARWAD.

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…RESPONDENTS

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(BY SRI.SURESH P.HUDEDAGADDI, ADVOCATE FOR R1-R4)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING THAT THE JUDGMENT AND DECREE DATED 30.10.2019 PASSED IN O.S.NO.370/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, DHARWAD, MAY KINDLY BE SET ASIDE BY ALLOWING THIS APPEAL WITH COST THROUGHOUT, IN THE ENDS OF JUSTICE AND EQUITY.

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

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CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K

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NC: 2025:KHC-D:9059-DB RFA No. 100028 of 2020

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE R.NATARAJ)

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The plaintiffs 1 to 4 in O.S.No.370/2016 on the file of the Principal Senior Civil Judge and CJM, Dharwad (hereinafter referred to as ‘the Trial Court’) have filed this appeal challenging the judgment and decree dated 30.10.2019 by which their suit for partition and separate possession was dismissed.

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For the sake of convenience and easy understanding, the parties shall henceforth be referred to as they were arrayed before the Trial Court. The appellants were the plaintiffs while the respondents were the defendants 1 to 4 before the Trial Court.

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The suit in O.S.No.370/2016 was filed for partition and separate possession of the plaintiffs’ share in the suit schedule properties. For the sake of immediate reference, the genealogy of the plaintiffs and the defendants, as mentioned in the plaint, is extracted below:

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Somappa Siddappa Pawar (Propositus)(dead)

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Kashawwa (1^st wife) Gangawwa (2^nd wife) (Dead issueless) Lacchawwa (daughter) (dead) Arjuna (husband) (dead)

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Khandoba (son)

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Chandrawwa (1^st wife)(Dead) Anasuya (2^nd wife)(Pltff-1) Yallawwa (daughter) (D-1) Ramkrishna @ Vinodh Sakkubai Shrikant (Pltf-2) (Pltf-3) (Pltf-4) Jyothiba (D-4) (husband)

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Basawaraj (D-2) (son) Somappa (D-3)(son)

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(i) The suit was filed in respect of 5 items of agricultural lands situate in Amminabhavi village and 3 items of residential properties situate in Amminabhavi village. The plaintiffs contended that the propositus of the family expired long back leaving behind his two wives viz ., Smt.Kashawwa and Smt.Gangawwa. Smt.Kashawwa died leaving behind her only daughter Smt.Lachchawwa. Smt.Lachchawwa and her husband Sri.Arjuna died leaving behind their son Sri.Khandoba. The said

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Khandoba also died leaving behind him the defendant No.1Smt.Yallawwa, from his first wife Smt.Chandrawwa and his second wife Smt.Anasuya i.e. the plaintiff No.1 and her three children i.e., plaintiffs No.2 to 4. The defendants No.2 and 3 are the children of defendant No.1, while defendant No.4 is the husband of defendant No.1. The plaintiffs contended that the plaintiffs and defendant No.1 were members of a joint family and were cultivating the suit properties jointly. They claimed that the agricultural properties at suit item Nos.(a) to (d) of schedule ‘A’ were ancestral properties of the family, while the property at suit item No.(e) was purchased out of the joint family funds in the name of defendant No.1. They claimed that the defendants No.2 to 4 were not concerned with the suit schedule properties in any manner whatsoever.

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(ii) They contended that the suit item Nos.(c) and (d) in Schedule 'A' i.e. Block No.355, measuring 3 acre 11 guntas and Block No.743 measuring 6 acres 10 guntas both situated at Amminabhavi village were granted by the Land Tribunal, Dharwad in favour of Smt.Gangawwa i.e., the second wife of the propositus. Accordingly, mutation entries in M.E.No.9199

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and 9503 were entered in her name. They contended that the defendant No.4 with an intention to grab the suit item Nos.(a), (b) and (c) of schedule 'A', colluded with the revenue officials and got his name entered in respect of the said properties claiming to be the adopted son of late Smt.Gangawwa and the propositus-Sri.Somappa. The plaintiffs claimed that Smt.Gangawwa did not adopt the defendant No.4 and that she had no right to take him in adoption. It was also contended that the defendant No.4 had falsely claimed that Smt.Gangawwa had executed a deed of adoption dated 02.12.1980 acknowledging that defendant No.4 was adopted on 05.02.1968. Therefore, they contended that the adoption was illegal, null and void and did not bind the interest of the plaintiffs.

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(iii) The plaintiffs claimed that defendants No.1 and 4, in order to grab the properties of the family of the plaintiffs, got the revenue entries of suit item No.(d) of schedule 'A' entered in the names of defendants No.2 and 3 by giving a false Varadi and got M.E.No.664 certified illegally. Likewise, the defendants got their names entered in the revenue records based on the

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adoption deed dated 02.12.1980. They claimed that all the revenue records either brought on the basis of the adoption deed or on the basis of Varadi submitted by defendant No.4 and the defendant No.1 did not bind their interest. They contended that the plaintiff No.1 had earlier filed a suit in O.S.No.165/2008 against the defendants for the relief of partition and separate possession without adding her children as parties and after coming to know of the defect, she withdrew the said suit with liberty to file a fresh suit on the same cause of action as per the order dated 24.09.2016. Accordingly, the plaintiffs filed the instant suit for relief of partition and separate possession.

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(i) The suit was contested by the defendant No.4, who filed a written statement inter alia contending that the plaintiff No.1 had filed O.S.No.165/2008 which was allowed to be withdrawn with liberty to file fresh suit on the same cause of action. He contended that the plaintiffs instead of filing a fresh suit in respect of the same properties had filed a suit including other properties and also pleaded facts that were alien to the suit in O.S.No.165/2008. He contended that the

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suit item No.(e) of schedule 'A' and schedule ‘B’ properties were not shown in O.S.No.165/2008 but were added in the present suit. He also contended that the description of the suit properties at paragraph 2 of the plaint were false, fabricated and concocted. He contended that the suit properties shown at suit item Nos.(b) and (c) in schedule ‘A’ were the lands cultivated by the deceased-Smt.Gangawwa as a tenant which were granted to her by the Tribunal and therefore, were her self-acquired properties, while suit item No.(e) was the selfacquisition of defendants No.2 and 3 and the rest of the properties did not belongs to the joint family. He also disputed the genealogy as mentioned in the plaint. However, he admitted that Sri.Somappa was the propositus and he had two wives viz., Smt.Kashawwa and Smt.Gangawwa. He also admitted that Smt.Lachchawwa was the only daughter of Smt.Kashawwa and that after the death of Smt.Kashawwa, Smt.Gangawwa looked after Smt.Lachchawwa and performed her marriage. He claimed that at the time of her marriage, Smt.Gangawwa had given money to Smt.Lachchawwa. He also admitted that Sri.Khandoba was the only son of Smt.Lachchawwa. However, he contended that the defendant

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No.1 was the only daughter of the said Khandoba and Smt.Chandrawwa. He denied that the plaintiff No.1 was the second wife of the said Khandoba and that the plaintiffs No.2 to 4 were the children of the plaintiff No.1 from Sri.Khandoba. He also denied that after the demise of Smt.Chandrawwa, Sri.Khandoba married the plaintiff No.1 and that the plaintiffs No.2 to 4 were born from the said marriage.

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(ii) He claimed that Smt.Gangawwa, during the lifetime of the propositus-Sri.Somappa, had taken him in adoption on 05.02.1968 and that the said adoption was registered on 02.12.1980. Therefore, he contended that he was the only legal heir of deceased-Somappa and Smt.Gangawwa and he succeeded to the suit properties. He denied the assertions made in the plaint regarding the illegal entries brought about in the name of defendants No.2 and 3 as well as in his name and therefore, prayed that the suit filed for partition be dismissed.

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Based on these contentions, the Trial Court framed

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the following issues:

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“1) Whether Plaintiffs prove that they and 1st Defendant are the members of Hindu Undivided

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Family and scheduled properties are their joint family properties?

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2) Whether the 4th Defendant proves that he is the adopted son of propositus Somappa vide adoption deed dated 02-12-1980?

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3) Whether the 4th Defendant proves that in view of the Plaintiffs earlier filing suit for partition in O.S No.165/2008 the present suit is not maintainable?

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4) Whether the 4th Defendant further proves that suit is barred by limitation?

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5) Whether the 4th Defendant further proves that the suit is bad for non-joinder of necessary parties?

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6) Whether the Plaintiffs are entitled to plaint reliefs?

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7) What Order or Decree?”

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The plaintiff No.4 was examined as PW1 and he

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marked Exs.P1 to P31. He examined a resident of Amminabhavi village as PW2 and also examined an aged person and resident of Amminabhavi as PW3. The defendant No.1 was examined as DW1 and the defendant No.4 was examined as DW2. The son of an attesting witness to the deed of adoption was examined as DW3. They marked Exs.D1 to D16.

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Based on the oral and documentary evidence, the

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Trial Court held that Smt.Gangawwa had taken the defendant No.4 in adoption, which was evidenced by Ex.D2. It also held

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that the plaintiffs and the defendants No.1 to 3 did not constitute a joint family and that the suit schedule properties were not the properties of the family. It also held that since the plaintiff No.1 had filed a suit in O.S.No.165/2008, which was withdrawn and the said fact was not disclosed, there was no cause of action for filing the present suit. It also held that the instant suit filed for partition was barred by the law of limitation and consequently dismissed the suit filed by the plaintiffs. Being aggrieved by the said judgment and decree, the plaintiffs are before this Court.

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(i) The learned counsel for the plaintiffs contended that the suit filed by the plaintiff No.1 in O.S.No.165/2008 was undoubtedly for partition and separate possession of certain properties, which purportedly belonged to the family. He contends that the said suit was withdrawn and liberty was reserved to file a fresh suit on the same cause of action. He submits that the defendants did not challenge this order before any Court of Law and therefore, the plaintiff No.1 was entitled to initiate fresh suit on the same cause of action. Besides this, he contends that the plaintiffs came to know that

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the family possessed some other properties and therefore, they filed a fresh suit not only in respect of the properties, which were the subject matter of O.S.No.165/2008, but also the other properties. He contends that the plaintiffs had indeed disclosed about the filing of the O.S.No.165/2008 for partition and that it was withdrawn with liberty to file a fresh suit. Therefore, he contends that the finding of the Trial Court that the plaintiffs did not disclose about the earlier suit is palpably false and liable to be interfered with.

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(ii) He contends that the suit for partition is based on a continuing cause of action. A mere withdrawal of the suit does not put an end to the cause of action. He contends that the cause of action continues till the properties are divided by metes and bounds and therefore, the withdrawal of the earlier suit filed in O.S.No.165/2008 does not affect the right of the plaintiffs to seek for a general partition of all the properties of the family.

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(iii) He further contends that the Trial Court misdirected itself in presuming that the defendant No.4 was adopted under Ex.D2. He contends that even though the defendant No.4

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claimed that he was adopted in the year 1968, but Ex.D2adoption deed was executed in the year 1980. Therefore, he contends that the defendant No.4 was not adopted under Ex.D2. Consequently, it was incumbent upon the defendant No.4 to prove the adoption by Smt.Gangawwa in the year 1968. He submits that the defendant No.4 miserably failed in that regard, but yet the Trial Court banked upon Ex.D2 to hold that the defendant No.4 was the adopted son of Smt.Gangawwa and that he had succeeded to her properties as the natural legal heir.

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(iv) He submits that though the defendant No.4 denied the relationship of the plaintiffs with Sri.Khandoba, DW1 categorically admitted about the relationship. Therefore, Sri.Khandoba was the husband of the plaintiff No.1 and father of plaintiffs No.2 to 4. He also contends that DW1 admitted that Sri.Khandoba married plaintiff No.1 after the death of his first wife Smt.Chandrawwa and hence, the plaintiffs and the defendant No.1 were entitled to an equal share in the suit properties.

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(i) Per contra , the learned counsel for defendant No.4 submitted that there is nothing on record to show that the plaintiff No.1 was the wife of Sri.Khandoba. He submits that no evidence of whatsoever nature was adduced before the Trial Court to establish the relationship of Sri.Khandoba with the plaintiff No.1. He contends that PW2, was a resident of Amminabhavi village and was aged about 55 years old when he deposed before the Trial Court. He deposed that the marriage of plaintiff No.1 with Sri.Khandoba was performed 50 years ago which meant that he was a five year old boy then. He therefore contends that PW2 did not have any knowledge about the marriage of Sri.Khandoba with plaintiff No.1. He further submits that PW2 was a planted witness inasmuch as he had no knowledge about the family members of defendant No.4. Therefore, he contends that the evidence of PW2 was not reliable but he was clearly planted in the case by the plaintiffs. Further, he contends that PW3, though faintly deposed that plaintiff No.1 was married to Sri.Khandoba, in his crossexamination, he deposed that he had no knowledge about the family members of Sri.Khandoba and that he had no knowledge about when and where the plaintiff No.1 was given in marriage

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to Sri.Khandoba. He contends that PW3 gave the name of the Khandoba’s wife as "Annapurna" and not "Chandrawwa" and this established that PW3 had no knowledge about the family of the plaintiff No.1 and Sri.Khandoba. Therefore, he contends that there was no tangible evidence on record to establish the relationship of plaintiff No.1 with Sri.Khandoba. Therefore, he contends that the plaintiffs were not entitled to lay any claim in the properties of Sri.Khandoba or the properties of the joint family including the property that was granted to Smt.Gangawwa, the second wife of the propositus.

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(ii) He also contends that under Ex.D2, the defendant No.4 was adopted by Smt.Gangawwa and the said adoption was evidenced by a document registered in the year 1980 as per Ex.D2. He contends that as per Section 16 of the Hindu Adoptions and Maintenance Act, 1956 (for short ‘Act of 1956’), once a document of adoption is registered, the presumption that it is done in accordance with the Act of 1956, has to be drawn. He, therefore, contends that if the adoption is upheld, then the properties of Smt.Gangawwa would be inherited by the defendant No.4 and not the plaintiffs. He further contends

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that the photograph taken at the time of adoption of the defendant No.4, which was marked as Ex.D16, showed that Smt.Gangawwa and Sri.Somappa had taken the defendant No.4 in adoption and therefore, the adoption was just and proper and in accordance with law.

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(iii) Likewise, he contends that since the defendant No.1 is the only daughter of Smt.Chandrawwa, she is entitled to succeed to the properties held by Sri.Khandoba. Therefore, he contends that on all counts, the Trial Court was justified in not granting any relief to the plaintiffs.

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(iv) Besides this, he submits that the plaintiff No.1 had filed a suit for partition and separate possession in O.S.No.165/2008. The said suit was permitted to be withdrawn on 24.09.2016 and liberty was reserved to file a fresh suit on the same cause of action. However, the plaintiff No.1 instead of presenting a suit for partition in respect of the very same properties had included certain other properties, which were inherited by the defendant No.4. He therefore, contends that the Trial Court was justified in holding that the plaintiffs were not entitled to file a fresh suit on the same cause of action.

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Therefore, he contends that the Trial Court was justified in holding that that the plaintiffs are not entitled to a share in the suit properties.

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We have given our anxious consideration to the submissions made by the learned counsel for the plaintiffs and the learned counsel for the defendant No.4. We have also perused the records of the Trial Court as well as its judgment and decree. The questions that arise for consideration in this appeal are as follows:

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Whether the plaintiffs had proved that plaintiff No.1 was the wife of Sri. Khandoba?

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Whether the defendant No.4 was adopted by Smt. Gangawwa?

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Whether the defendant No.1 was the only lawful heir of Smt. Chandrawwa who was entitled to succeed to the other properties?

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In so far as the first point is concerned, the plaintiffs claimed that Sri. Khandoba married plaintiff No.1 after the death of Smt. Chandrawwa and plaintiffs No.2 to 4 are their children. The defendant No.4, in his written statement, denied

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that plaintiff No.1 was the wife of Sri. Khandoba and plaintiffs No.2 to 4 are their children. The defendant No.1 i.e. the daughter of Khandoba was examined as DW1. She, in the course of her cross-examination, stated as follows:

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“............. £À£Àß vÀAzÉUÉ E§âgÀÄ ºÉAqÀA¢gÀÄ ªÉÆzÀ®£ÉAiÀÄªÀ¼ÀÄ ²æÃªÀÄw ZÀAzÀæªÁé ªÀÄvÀÄÛ JgÀqÀ£ÉAiÀÄªÀgÀÄ ²æÃªÀÄw C£ÀÄ¸ÀÆAiÀiÁ JAzÀgÉ EzÀÄ ¸Àj. ²æÃªÀÄw ZÀAzÀæªÁé FPÉUÉ AiÀÄ®èªÁé JA§ M§â ªÀÄUÀ¼ÀÄ EzÀÄÝ CzÀÄ £Á£ÉÃ JAzÀgÉ EzÀÄ ¸Àj.

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£À£Àß vÁ¬Ä ZÀAzÀæªÁé PÁ®ªÁzÀ £ÀAvÀgÀ £À£Àß vÀAzÉ RAqÉÆÃ¨Á ²æÃªÀÄw C£ÀÄ¸ÀÆAiÀiÁ EªÀgÀ£ÀÄß «ªÁºÀªÁVgÀÄvÁÛgÉ JAzÀgÉ EzÀÄ ¸Àj. ²æÃªÀÄw C£ÀÄ¸ÀÆAiÀiÁ EªÀjUÉ ªÁ¢ ¸ÀASÉå 2 jAzÀ 4 ªÀÄPÀÌ¼ÀÄ JAzÀgÉ ºËzÀÄ. £À£Àß vÁ¬Ä PÁ®ªÁzÁUÀ £À£ÀUÉ 5-6 ªÀµÀð ªÀAiÀÄ¸ÁìVgÀ§ºÀÄzÀÄ JAzÀgÉ EzÀÄ ¸ÀÄ¼ÀÄî, PÉÃªÀ® 2 ªÀµÀð ªÀAiÀÄ¸ÁìVvÀÄÛ. £À£Àß vÁ¬Ä PÁ®ªÁzÀ £ÀAvÀgÀ £À£Àß vÀAzÉAiÀÄ 2 £ÉÃ ªÀÄqÀ¢ ªÀÄvÀÄÛ £À£Àß ªÀÄ®vÁ¬Ä ²æÃªÀÄw C£ÀÄ¸ÀÄAiÀiÁ £À£Àß ¥Á®£É ¥ÉÇÃµÀuÉ ªÀiÁrgÀÄvÁÛgÉ JAzÀgÉ EzÀÄ ¸ÀÄ¼ÀÄî £À£Àß£ÀÄß £À£Àß CdÓ ªÀÄvÀÄÛ CªÀÄä ¥Á®£É ¥ÉÇÃµÀuÉ ªÀiÁrgÀÄvÁÛgÉ.”

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Therefore, it is crystal clear that the plaintiff No.1 was the wife of Khandoba and that plaintiffs No.2 to 4 were their children.

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The defendant No.4 came into the family of defendant No.1 in the year 1968 as per his claim in the written statement. Therefore, defendant No.4 was not privy to the fact that plaintiff No.1 was given in marriage to Sri.Khandoba. PW2,

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in the course of his cross-examination, stated that the marriage of plaintiff No.1 with Sri. Khandoba was performed 50 years ago and that plaintiffs No.2 to 4 were their children. In the course of cross examination of this witness, a suggestion was put which is as follows:

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“............ £À£Àß vÀAzÉ ªÀÄvÀÄÛ RAqÉÆÃ¨Á D¥ÀÛ «ÄvÀægÀÄ JAzÀgÉ EzÀÄ ¸Àj. RAqÉÆÃ¨Á EªÀjUÉ £Á£ÀÄ ¸ÀºÀ M§â ¤PÀlªÀwð JAzÀgÉ EzÀÄ ¸Àj.”

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Therefore, the evidence of PW2 that plaintiff No.1 was the wife and plaintiffs No.2 to 4 were the children of Khandoba is believable. If the evidence of DW1 and the evidence of PW2 when pieced together, gives a clear picture that plaintiff No.1 was the wife of Sri. Khandoba and that Sri. Khandoba married her after the death of his first wife Smt. Chandrawwa. The plaintiffs have marked the SSLC marks card of plaintiff No.4 as Ex.P.20, which shows his father's name as "Khandoba Pawar". The voter identity card of "Khandoba Pawar" was marked as Ex.P.21, which shows that plaintiffs were in possession of the voter identity card. Ex.P.22 is the senior citizen identity card issued by the State Government to plaintiff No.1 and Exs.P.23 to 25 are the Aadhar cards of plaintiff Nos.2, 4 and 1

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respectively, which all shows that they are the children and wife of Khandoba Pawar. Ex.P.26 is a pass book of Khandoba Pawar which lay in the hands of plaintiffs. Therefore, we have no hesitation to hold that the evidence on record established the fact that plaintiff No.1 was the wife and plaintiffs No.2 to 4 are the children of Sri. Khandoba. As regards the question whether the plaintiffs and defendants constituted members of a joint family, DW1, in the course of her cross-examination stated as follows:

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“………… zÁªÁzÀ ±ÉqÀÆå® J PÀæªÀÄ¸ÀASÉå 1 jAzÀ 5 ªÀÄvÀÄÛ ±ÉqÀÆå® © 1 jAzÀ 3 gÀ d«ÄÃ£ÀÄUÀ¼ÀÄ £À£ÀUÉ ªÀÄvÀÄÛ ªÁ¢UÀ½UÉ ¦vÁæfðvÀªÁV §AzÀAvÀºÀ ¸ÀévÀÄÛUÀ¼ÀÄ JAzÀgÉ ºËzÀÄ.”

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Therefore, the evidence on record pointed to a clear fact that plaintiffs No.2 to 4 and defendant No.1 as children of Sri. Khandoba were members of a joint family of which Sri. Khandoba was the ‘kartha’ and that all the properties were either succeeded or inherited by Sri. Khandoba and after his death, plaintiffs No.1 to 4 and defendant No.1 were entitled to an equal share in all the properties of the family.

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As regard the contention that the plaintiffs were not entitled to file a fresh suit for partition in respect of properties that were not included in O.S. No.165/2008, it is relevant to note that O.S. No.165/2008 was filed by plaintiff No.1 alone for partition and separate possession in respect of certain properties and not in respect of all the properties which were subject matter of the suit in O.S. No.370/2016. The plaintiffs No.2 to 4 were not arrayed as parties. The Court therefore had permitted plaintiff No.1 to withdraw O.S.No.165/2008 and granted liberty to file a fresh suit on the same cause of action. In view of the finding recorded by this Court that the plaintiffs No.2 to 4 were also the members of the joint family and were entitled to an undivided share, mere inclusion of certain other properties in O.S. No.370/2016 did not affect the nature of the suit and did not deprive the plaintiffs of claiming their right in the suit schedule properties. The plaintiffs No.2 to 4 could have independently filed a separate suit in respect of the properties, which were not subject matter of the suit in O.S. No.165/2008, in which event, the suit filed by the plaintiff No.1 in O.S. No.370/2016 and the separate suit that would have been filed by plaintiffs No.2 to 4 in respect of the properties not

¶139

22 - NC: 2025:KHC-D:9059-DB RFA No. 100028 of 2020

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HC-KAR

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included, would have been taken up for disposal together. Besides this, it is well settled that parties may include additional properties until a final decree is drawn. Therefore, there was no impediment in law in entertaining the suit filed by the plaintiffs for partition and separate possession. At this juncture, it is appropriate to notice that the Trial Court had answered issue No.3 in a perfunctory manner by holding that the plaintiffs changed their version in the subsequent suit filed in O.S. No.370/2016. The Trial Court seems to have lost sight of the fact that a partition suit is based on a continuous cause of action and even if the plaintiff No.1 had withdrawn the suit without liberty, that did not deprive the plaintiffs from renewing their request for partition and separate possession of their share in the suit schedule property. In this regard, it is profitable to refer to the judgment of a co-ordinate Bench of this Court in the case of Seenappa and others vs. Subbaiah and others [ILR 1999 KAR 1543], as well as the judgment of the Hon'ble Apex Court in the case of Jet Plywood Pvt. Ltd. and another Vs. Madhukar Nowlakha and others [AIR 2006 SC 1260]. Therefore, the finding of the Trial Court that

¶142

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NC: 2025:KHC-D:9059-DB RFA No. 100028 of 2020

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HC-KAR

¶145

the plaintiffs were not entitled to file a fresh suit for partition is incorrect and warrants interference.

¶146

In so far as the second point for consideration is concerned, it is relevant to note that defendant No.4, in his written statement specifically contended that the deceased Smt. Gangawwa, during the lifetime of the propositus Somappa had taken him in adoption on 05.02.1968 and that the said adoption was registered on 02.12.1980. In support of his claim, defendant No.4 has marked Ex.D.16 which is a photograph purportedly taken at the time of adoption. Contrarily, DW.1 in the course of her cross-examination, stated as follows:

¶147

“................. £À£Àß «ªÁºÀªÁV JgÀqÀÄ ªÀµÀðUÀ¼À £ÀAvÀgÀ 4£ÉÃ ¥ÀæwªÁ¢ ¸ÉÆÃªÀÄ¥Áà ¥ÀªÁgÀ FvÀ£À PÀÄlÄA§PÉÌ zÀvÀÄÛ ¹éÃPÁgÀªÁVgÀÄvÁÛ£É. D zÀvÀÄÛ ¹éÃPÁgÀªÁUÀÄªÀ PÁ®PÉÌ DUÀ¯ÉÃ ¸ÉÆÃªÀÄ¥Áà ¥ÀªÁgÀ PÁ®ªÁVzÀÝ.”

¶148

While defendant No.4 claimed that he was a five year old boy when he was adopted, DW.1 claimed that he was adopted after he married her. Therefore, there is apparent inconsistency between defendant No.1 and defendant No.4 regarding the date of adoption and also whether as on the date of the alleged adoption of defendant No.4, the propositus was alive or not. On

¶149

24 - NC: 2025:KHC-D:9059-DB RFA No. 100028 of 2020

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HC-KAR

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the one hand defendant No.4 claimed that the propositus was alive, DW.1 claimed that propositus was dead. The defendant No.4 did not take any steps to prove the adoption and that it was in accordance with law. DW.1 stated that defendant No.4 was adopted after he married her. Defendant No.4 did not produce any evidence to show that there was a custom in the family of the defendants allowing adoption of married persons. The defendant No.4 did not take any steps to prove the adoption and that it was done as prescribed under law and that required ceremonies were performed for the said purpose. As rightly contended by the learned counsel for the plaintiffs, no presumption could be attached to Ex.D.2 as defendant No.4 was not adopted under Ex.D.2, but it was executed to evidence the alleged adoption of defendant No.4, twelve years prior thereto. Therefore, there was nothing on record to establish that the defendant No.4 was lawfully adopted by Smt. Gangawwa and therefore, he excluded the plaintiffs from inheriting the properties that were granted to Smt. Gangawwa, which were the subject matter of the suit. The Trial Court, in its judgment while highly relying upon Ex.P.8, recorded a fact that there were some stray admissions in the evidence of DW3

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HC-KAR

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which helped the plaintiffs, and the Trial Court proceeded to hold that the attestation of Ex.D.2 by father of DW3 and he witnessing the ceremony of adoption of the defendant No.4 was not disputed. The Trial Court was oblivious of the fact that the adoption of the defendant No.4 by Smt. Gangawwa was a material fact which the defendant No.4 was bound to prove by acceptable evidence. If the evidence of DW3 is taken into consideration, it is apparent that he and defendant No.4 are neighbours. He deposed that he was unaware as to who adopted the defendant No.4 and why he was given in adoption. He also did not identify his father's signature on Ex.D.2. Therefore, DW3 did not support the execution of Ex.D.2 also. Therefore, we are compelled to record a finding that the defendant No.4 did not prove that he was adopted by Smt. Gangawwa and hence he could not exclude the plaintiffs from inheriting the estate of Smt. Gangawwa. In view of the aforesaid finding recorded by us, we have to unhesitantly hold that plaintiffs No.1 to 4 and defendant No.1 were entitled to an equal share in the suit schedule properties. Consequently, the judgment and decree of the Trial Court refusing a share in the suit properties to the plaintiffs warrants interference.

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HC-KAR

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In view of the above, the third point for

¶158

consideration is answered in favour of the plaintiffs and it is held that defendant No.1 was not the only legal heir entitled to succeed to the suit properties.

¶159

Accordingly, the appeal is allowed . The impugned judgment and decree passed by Trial Court is set aside and the suit filed by the plaintiff is decreed and it is declared that the plaintiffs No.2 to 4 and defendant No.1 are entitled to 1/4^th share **_each_* in all the suit schedule properties as plaintiff No.1 has died during the pendency of this appeal.

¶160

Office is directed to draw a decree in terms of this judgment.

¶161

Sd/(R.NATARAJ) JUDGE

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Sd/(RAJESH RAI K) JUDGE

¶163

YAN, KMS CT:PA LIST NO.: 1 SL NO.: 21

¶164

Corrected vide court order dated 31.01.2026.

¶165

Sd/RNJ

Smt.Anasuya W/O Khandoba Pawar v. Smt.Yallawwa W/O Jyotiba Wadakar @ Pawar

Case brief

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Smt.Anasuya W/O Khandoba Pawar v. Smt.Yallawwa W/O Jyotiba Wadakar @ Pawar

Case brief

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