Maruti S Kakatikar Vs Smt.Prabhavati W/O Chandrakant Naik

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NC: 2025:KHC-D:9986 RFA.CROB No. 100006 of 2016 C/W RFA No. 100039 of 2016

HC-KAR

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 07^TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI RFA CROSS OBJ NO. 100006 OF 2016 (DEC/PAR-)

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C/W REGULAR FIRST APPEAL NO. 100039 OF 2016

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IN RFA CROB. NO.100006/2016

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BETWEEN:

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SHRI. BASAVARAJ S/O APPASAHEB GOMBIMATH AGE: 59 YEARS, OCC: BUSINESS R/O: CTS. NO.1865/A, JED GALLI, SHAHAPUR, BELAGAVI-590 005

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…CROSS OBJECTOR

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(BY SRI. SHARAD V. MAGADUM, ADV)

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AND:

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SMT. PRABHAVATI W/O CHANDRAKANT NAIK, AGE: 54 YEARS, OCC: HOUSEHOLD WORK, R/O: RAMDEV GALLI, VADAGAON, BELAGAVI-590 005.

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MOHANKUMAR B SHELAR

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Digitally signed by MOHANKUMAR B SHELAR Date: 2025.09.09 12:08:05 +0530

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MARUTI S. KAKATIKAR AGE: 44 YEARS, OCC: BUSINESS R/O: CTS. NO.1865/B7, JED GALLI, SHAHAPUR, BELAGAVI-590 005.

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SHRI. PARASHURAM R PATTAR AGE: 38 YEARS, OCC: BUSINESS R/O: CTS. NO.1865/B7, JED GALLI, SHAHAPUR, BELAGAVI-590 005.

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MANJUNATH S/O RAGHUNATH PATTAR AGE: 44 YEARS, OCC: BUSINESS R/O: JED GALLI, SHAHAPUR, BELAGAVI-590 005.

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…RESPONDENTS

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(BY SRIYUTHS. RATAN G. MAJEKAR AND RAJASHEKHAR BURJI, ADV FOR R1, SRI. VITTHAL S. TELI, ADV FOR R2 TO R4)

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HC-KAR

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THIS RFA CROB. IS FILED IN RFA NO.100039/2016 FILED UNDER ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 17.11.2015 PASSED IN O.S.NO.364/2007 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE AND CJM, BELAGAVI, DECREEING THE SUIT FILED FOR DECLARATION, PARTITION AND SEPARATE POSSESSION, DECLARATION FNA FOR PERMANENT INJUNCTION.

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THIS CROSS OBJECTION COMING ON FOR FINAL HEARING,

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IN RFA NO.100039/2016

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BETWEEN:

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MARUTI S KAKATIKAR AGE: 44 YEARS, OCC: BUSINESS, R/O: CTS NO.1865/B7, JED GALLI, SHAHAPUR, BELAGAVI-590005.

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SHRI. PARASHURAM R PATTAR AGE: 38 YEARS, OCC: BUSINESS, R/O: CTS NO.1865/B7, JED GALLI, SHAHAPUR, BELAGAVI-590005.

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MANJUNATH S/O RAGHUNATH PATTAR AGE: 48 YEARS, OCC: BUSINESS, R/O: JED GALLI, SHAHAPUR, BELAGAVI-590005.

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…APPELLANTS

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(BY SRI. VITTHAL S TELI, ADV)

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AND:

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SMT. PRABHAVATI W/O CHANDRAKANT NAIK AGE: 53 YEARS, OCC: HOUSEHOLD WORK, R/O: RAMDEV GALLI, VADAGAON, BELAGAVI-590005.

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SHRI. BASAVARAJ S/O APPASAHEB GOMBIMATH AGE: 59 YEARS, OCC: BUSINESS, R/O: CTS NO.1865/A, JED GALLI, SHAHAPUR, BELAGAVI-590005.

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…RESPONDENTS

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(BY SRIYUTHS. RAJASHEKHAR BURJI, RAM P. GHORPADE, AND RATAN G. MAJEKAR, ADVS FOR R1; NOTICE TO R2 IS SERVED)

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HC-KAR

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THIS RFA IS FILED U/SEC.96 R/W ORDER 41 RULE 1 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DATED 17.11.2015 PASSED IN O.S NO.364/2007 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE AND CJM, BELAGAVI, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION, DECLARATION AND FOR PERMANENT INJUNCTION.

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THIS APPEAL AND CROSS OBJECTION COMING ON FOR FINAL HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

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The Regular First Appeal No.100039/2016 is filed

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by defendant Nos.2 to 4/ Appellants and the Cross Objection No.100006/2016 is filed by defendant No.1challenging the judgment and preliminary decree dated 17.11.2015 passed in O.S. No.364/2007 by the learned II Additional Senior Civil Judge and CJM, Belagavi.

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For convenience, the parties are referred to based on their rankings before the trial court.

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Brief facts leading rise to the filing of this appeal and the cross objection are as follows:

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The plaintiff filed a suit against the defendants for partition and separate possession. It is the case that one Prabhuswami was the original propositus of the family of the plaintiff and defendant No.1. He had two sons and a daughter namely Appasaheb, Chandrashekar and the daughter, who died unmarried. Appasaheb had a wife by name Annapurna and they had three children i.e., the plaintiff, defendant No.1 and Madiwalayya @ Ajjappa and he died issueless. It is the case of the plaintiff that Appasaheb died on 13.05.1972 leaving behind the plaintiff, defendant No.1 and Madiwalayya. The plaintiff and defendant No.1 are the legal representatives of the deceased Appasaheb, and they have inherited the suit properties as the only legal heirs. The plaintiff and defendant No.1 have equal share in the suit schedule properties. The plaintiff was born on 22.07.1962 at Belagavi and she got married to one Sri. Chandrakant Naik. It is contended that after the demise of Appasaheb, the names of the plaintiff and defendant No.1 were entered in the CTS records as a legal heirs of Appasaheb. The plaintiff and defendant No.1 are in joint

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possession and enjoyment of the suit schedule properties. Defendant No.1 to deprive the legitimate right of the plaintiff, created a document i.e. Release deed purporting to have been executed by the plaintiff on 22.07.2003. It is contended that the plaintiff never executed alleged release deed dated 22.07.2003. It is contended that the registered release deed is a rank of forgery. It is also contended that defendant No.1 played a fraud by forging the signature of the plaintiff and defendant No.1 sold the property in favour of defendant No.2 on 24.12.2004 and in favour of defendant No.3 on 21.04.2007. As the plaintiff never executed the alleged release deed, she has a right to claim a share in the suit schedule properties. It is contended that defendant No.1 did not acquire any right to execute registered sale deeds in favour of defendant Nos.2 and 3. Defendant Nos.2 and 3 have not acquired any right, title and interest over the suit schedule properties under the registered sale deeds. It is contended that the plaintiff filed a criminal case against defendant No.1 for forging her signature. It is contended that the plaintiff demanded a partition and separate

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possession but defendant No.1 came up with the Will alleged to have been executed by the propositus Prabhuswami in his favour on 20.12.1957 and refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit a partition and separate possession and also declaration that the registered release deed dated 22.07.2003 and a registered Will dated 20.12.1957 are created, concocted, forged etc and sought for a permanent injunction restraining the defendants from disturbing the peaceful possession and enjoyment of the portion of the suit schedule properties. Accordingly, prays to decree the suit.

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Defendant No. 1 filed a Written statement denying the averments made in the plaint, except admitting the relationship and contended that, his grandfather Prabhuswami executed a Registered Will dated 20.12.1957 bequeathing the suit properties in his favour. Also, contended that, the plaintiff executed a registered release deed dated 22.07.2003, relinquishing her share regarding the suit properties, in favour of this defendant. It is contended that, by virtue of these documents he became the absolute owner

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of the suit schedule properties. Accordingly, prays to dismiss the suit against defendant No. 1.

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Defendant No.2 filed a written statement denying the averments made in the plaint and contended that Basavaraj became the absolute owner of the suit schedule properties bearing CTS No.1865/B6, 1865/B7 and 1865/A after the death of his father-Appasaheb on 13.05.1972. The original propositus i.e., Prabhuswamy executed a registered Will dated 20.12.1957 bequeathing the properties in favour of defendant No.1. The testator died and after his death, defendant No.1 became the absolute owner of the suit schedule properties by a registered Will dated 20.12.1957. Further, the plaintiff also executed a registered release deed dated 22.07.2003 in favour of defendant No.1 relinquishing her right in favour of defendant No.1 regarding CTS Nos.1865/B6 and 1865/B7. Based on the registered release deed executed by the Plaintiff in favour of defendant No.1, the name of the Plaintiff was deleted from CTS records and the name of defendant No.1 was entered in the CTS records. It is contended that defendant No.2 is a bona fide purchaser

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of CTS No. 1865/B7. Hence, prays to dismiss the suit against defendant No.2.

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Defendant No.3 reiterated the averments made in the written statement of defendant No.2 and contended that defendant No.3 has purchased portion of CTS No.1865/B6, he is Bonafide purchaser for a value and accordingly, prays to dismiss the suit against defendant No.3. Defendant No.3 filed an amended written statement denying the averments made in the amended plaint and accordingly, prays to dismiss the suit against defendant No.3.

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The trial Court, based on the pleadings of the

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parties, framed the following issues and additional issues:

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1. Whether plaintiff proves that she constitutes a joint family in joint possession of suit properties along with the defendant No.1?

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2. Whether the plaintiff proves that she has a share in the suit properties? If so, what is extent of her share?

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3. Whether defendant No.1 proves that suit property at Sl.No.1 is his self acquired property having acquired it under a registered will deed dated 20.12.1957?

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4. Whether the defendant No.1 proves that suit property at Sl.No.2 is the trust property?

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5. Whether defendant No.1 proves that plaintiff has relinquished her right and interest in property CTS No.1865/B6 and 1865/B7 in favour of defendant No.1 by way of a registered deed dated 22.07.2003?

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6. Whether defendant No.2 proves that there is no cause of action?

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7. Whether defendant No.2 proves that the court fee paid is incorrect and suit is under valued?

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8. Whether plaintiff is entitled for partition and separate possession?

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9. What decree or order?

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Additional issue

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1. Whether the plaintiff proves that the alleged release deed dated 22.07.2003 and will deed dated 20.12.1957 are created, concocted, forged and fabricated documents and are not binding upon the plaintiffs?

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The plaintiff to substantiate her case, examined

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herself as PW.1, examined 1 witness as PW.2, and marked 14 documents as Exs.P-1 to P-14. Conversely, On the other hand, defendant No.2 was examined as DW.1, defendant

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No.3 was examined as DW-2, defendant No.4 was examined as DW.3, and marked 7 documents as Exs.D-1 to D-7.

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The trial Court, after recording the evidence, hearing on both sides and after assessing the verbal and documentary evidence, answered issues No. 1, 8, and Addl. Issue No. 1 in the affirmative, issue No. 2 in the partly affirmative, issue Nos. 3 to 7 in the negative and issue no. 9 as per the final order and held that the plaintiff has proved that she constitute a joint family in joint possession of the suit properties along with defendant No.1, proves that the plaintiff has a share in the suit schedule properties and defendant has failed to prove that Sl.No.1 is the self acquired property having acquired under the registered Will dated 20.12.1957, defendant No.1 has failed to prove that Sl.No.2 is the trust property and defendant No.1 has filed to prove that the plaintiff had relinquished her right and interest in the property bearing CTS No.1865/B6 and 1865/B7 in favour of defendant No.1 by way of a registered release deed 22.07.2003 and also held that the plaintiff has proved that the alleged release deed and registered Will are created,

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concocted, forged and fabricated documents and are not binding upon the plaintiff, and consequently decreed that suit in part vide judgment dated 17.11.2015. It is declared that that the plaintiff is entitled to a partition and separate possession of her 1/4^th share in the suit properties by metes and bounds. It is also declared that the registered Will deed dated 20.12.1957 and the release deed dated 22.07.2003 are null and void and not binding on the 1/4^th share of the plaintiff in the suit properties. Further, the sale deeds are not binding on the plaintiff to the extent of her legitimate share in the suit properties.

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Defendant Nos.2 to 4, aggrieved by the judgment and decree passed in O.S. No.364/2007 have preferred an appeal in RFA No.100039/2016 and defendant No.1 filed the cross objection in RFA Cross Objection No.100006/2016.

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Heard the arguments of the learned counsel for the defendants, and the plaintiff.

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Learned counsel for defendant No.1 submits that the plaintiff has not sought for a relief of a declaration to

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declare that the sale deeds are not binding on the plaintiff to the extent of her legitimate share in the suit schedule properties. The trial Court, without there being a prayer, has granted a relief. Therefore, he submits that the relief granted by the trial Court insofar as the sale deeds are concerned, is without a prayer. He also submits that the plaintiff has executed a registered release dated 22.07.2003 relinquishing her right regarding Sl.No.1 of the suit schedule property and it is a registered release deed. He submits that the plaintiff is a party to the release deed and she was well aware about the execution of the release deed as of the date of the execution of the registered release deed ;However, the suit is filed after a lapse of 4 years from the date of the execution of the registered release deed. He submits that the suit filed by the plaintiff is barred by limitation. The said aspect was not adequately considered by the trial Court. He submits that Sl.No.2 of the suit schedule property is the trust property and it is not amenable for a partition. To prove that Sl.No.2 property is the trust property, defendant No.1 has filed an application in

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the cross objection for the production of additional evidence in IA No. 1 / 2025 to establish that Sl.No.2 property is the trust property. He submits that defendant No.1 could not produce the said document before the trial Court as the said document was not in the custody of defendant No.1. Despite the due diligence, defendant No.1 could not trace out the said document. He submits that after filing of this appeal, defendant No.1 traced out a certified copy of the registered public trust. He also submits that the plaintiff has made an allegation against defendant No.1 that defendant No.1 by forging the signature of the plaintiff, created a registered the release deed. He, however, submits that he was acquitted in the criminal case registered against him by judgment of acquittal dated 01.12.2024 i.e., during the pendency of this appeal. The said judgment was not in existence during the pendency of the suit. Hence, prays to allow the application filed by defendant No.1.

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It is also submitted that, defendant Nos.2 to 4 have also filed an application for the production of additional evidence, in the Appeal i.e. I.A.1/2024, producing the

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property plain cards of CTS No.1865. He submits that the parties have acted upon the registered Will deed executed in 1957. The said documents are relevant for the purpose of deciding the dispute. Hence, they pray to allow the applications in IA. No 1 /2024 and 1/2025 respectively, and to remit the matter to the trial Court with a liberty to the parties to adduce the further evidence on the proposed documents.

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Per contra, learned counsel for the plaintiff supported the impugned judgment. However, he submits that there is no dispute regarding the relationship between the plaintiff and defendant No.1. He submits that defendant No.1 forged the signature of the plaintiff and created a registered release deed. He also submits that the parties have not acted upon the registered Will executed in 1957. He submits that the documents produced along with the application for the production of additional evidence, are public documents and the defendants could have produced the said documents before the trial Court. However, the defendants did not produce the said documents before the

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trial Court. Hence, he submits that the judgment and preliminary decree passed by the trial Court is just and proper and it does not call for any interference by this court and accordingly, prays to reject the application filed by the defendant No.1 i.e. I.A.No.1/2025 and I.A.1/2024 filed by defendant Nos.2 to 4.

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Perused the records, and considered the submissions of the learned counsel for the parties.

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The points that would arise for consideration are as follows:

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(i) Whether the trial Court was justified in granting the relief that the sale deeds executed in favour of defendant Nos.2 and 3 are not binding on the plaintiff in the absence of a prayer?

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(ii) Whether defendant No.1 prove that Sl.No.2 of the suit schedule property is the trust property and it is not amenable for partition?

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(iii) Whether defendant No.1 has made out a ground to allow I.A.1/2025?

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(iv) Whether defendant Nos.2 to 4 have made out a ground to allow I.A.1/2024?

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(v) Whether the defendants prove that the judgment and preliminary decree passed by the trial Court is perverse and arbitrary?

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(vi) What order or decree?

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Point No.(i) : Initially, the plaintiff has filed a suit for a partition and separate possession and for a consequential relief of a permanent injunction. Subsequently, the plaintiff amended the plaint and sought for a relief of a declaration to declare that the registered Will dated 20.12.1957 and registered release deed dated 22.07.2003 are created concocted, forged and fabricated documents and are not binding upon the plaintiff and the said documents will not clothe defendant No.1 with any manner of right, title or interest in the suit schedule properties.

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From the perusal of the plaint, the plaintiff has not sought a relief of a declaration to declare that the registered sale deeds are not binding on the share of the plaintiffs. In the absence of the prayer, the trial Court has granted the decree of relief of a declaration declaring that

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the registered sale deeds executed by defendant No.1 in favour of defendant Nos.2 and 3 are not binding on the plaintiff to the extent of her legitimate share in the suit properties. The trial Court committed an error in granting a relief of declaration that the registered sale deeds are not binding on the plaintiff to the extent of her legitimate share in the suit properties, without there being a prayer. The trial Court committed an error in granting the said relief.

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In view of the above discussion, I answer point No.(i) in the negative .

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Point No.(ii) : Though defendant No.1 filed a written statement contending that Sl.No.2 is the trust property and it is not amenable for partition, but defendant No.1 did not produce any records before the trial Court to establish that Sl.No.2 of the suit schedule property is the trust property. In the absence of the records, the trial Court declined to consider the defense of the defendants regarding Sl.No.2 of the suit schedule property. Now defendant No.1 has filed an application in I.A.1/2025 for the production of

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additional evidence. In view of filing an application for production of additional evidence, this Court is of the opinion that the said aspect needs to be reconsidered by the trial Court insofar as whether the said property is the trust property?

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In view of the above discussion, point No.(ii) does

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not arise for consideration at this point of time.

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Point No.(iii) : Defendant No.1 filed an application in I.A.1/2025 for the production of additional evidence. In support of an application, defendant No.1 has filed an affidavit stating that the suit filed by the plaintiff is barred by limitation and the allegation of the plaintiff that the release

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deed is forged one, is concerned, he has produced the judgment passed in C.C. No.254/2018 which discloses that defendant No.1 was acquitted in the criminal case vide judgment dated 16.12.2024. Insofar as the property is concerned, it is also stated that, the property is a trust property, as such it is entered in the trust register and a copy of the register of the public trust is produced to

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substantiate that it is a trust property. He states that the criminal court has recorded a finding that defendant No.1 has not forged the signature of the plaintiff. He submits that the said document go to the root of the case to prove the defence of defendant No.1. Hence, he submits that the said documents were not in the custody of defendant No.1 during the pendency of the suit. Accordingly, prays to allow the said application.

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Admittedly, the criminal case was disposed of during the pendency of this appeal. The said document is relevant for passing the judgment. The plaintiff did not file objections to the application in I.A.1/2025. As observed above, the said document go to the root of the defense of defendant No.1 that the plaintiff has failed to prove that defendant No.1 executed the released deed by forging and impersonation. Also produced the document i.e., register of the public trust, which discloses that Sl.No.2 is the trust property. As to whether the said property is amenable for partition, is to be considered by the trial court. The said document go to the root of the case. In view of the above

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discussion, defendant No.1 has made out a ground to entertain the application. Accordingly, I.A.1/2025 deserves to be allowed.

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In view of the above discussion, point No.(iii) is answered in the affirmative.

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Point No.(iv) : Defendant Nos.2 to 4 filed an application in I.A.1/2024 for the production of an additional evidence. In support of an application, defendant No.2 filed an affidavit stating that based on the registered Will dated 20.12.1957, name of defendant No.1 was mutated in the concerned CTS records and the father of the plaintiff and defendant No.1 during his life time, on 25.02.1965 moved an application for mutating the name of defendant No.1 based on the registered Will dated 20.12.1957. He states that, he was also examined as DW.1 and marked Ex.D-2 i.e. CTS extract. He wants to produce the enitre property plain card of CTS No.1865. It is stated that the additional documents clearly disclose that during the life time of the father of the plaintiff and defendant No.1 an application was made to

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enter the name of defendant No.1 in the CTS records. Based on the application made by the father of the plaintiff and defendant No.1, the name of defendant No.1 was entered in the CTS records based on the registered Will of 1957. It is stated that the said Will was acted upon after the demise of the testator. The said aspect was not adequately considered by the trial Court. It is stated that the said document go to the root of the case. Hence, prays to allow the application. The entire defence of the defendants is based on the Will alleged to have been executed by Prabhuswamy bequeathing Sl.No.1 of the suit schedule property in favour of defendant No.1. As of the date of the execution of the Will by the testator in favour of the propounder of the Will i.e. defendant No.1, he was hardly aged about 2 years. His father had made an application to the Survey Authorities based on the Will to enter the name of defendant No.1. The Survey Authorities, based on the application submitted by the father of defendant No.1 ,entered the name of defendant No.1 in the concerned records. Defendant Nos.2 to 4 have produced the said documents to establish that the parties have acted

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upon the registered Will of 1957. Hence, defendant Nos.2 to 4 have made out a ground to allow an application in I.A.1/2024.

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Accordingly, I answer point No.(iv) in the

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affirmative.

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Point No.(v) : The trial Court, without considering this aspect has proceeded to decree the suit of the plaintiff. The judgment and decree passed by the trial Court is arbitrary, and erroneous, and the same is required to be reconsidered afresh by the trial Court, in view of the order passed on I.As.1/2024 and 1/2025. In view of the above discussion, point No.(v) is answered in the affirmative.

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Point No.(vi) : In view of the above discussion,

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the following order is passed.

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ORDER

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The Appeal in RFA No. 100039/2016 and the cross objection in RFA Crob. No. 100006/2016, are hereby allowed.

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The judgment and decree dated 17.11.2015 passed in

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O.S. No.364/2007 by the learned II Additional Senior

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Civil Judge and CJM, Belagavi, is set aside.

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O.S.No.364/2007 is restored to its original file.

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I.As.1/2024 and 1/2025 are allowed. The documents

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are taken on record. The Liberty is reserved to the parties to lead evidence on the additional documents. The Liberty is reserved to the plaintiff to make an application for the amendment of the plaint, seeking a relief of a declaration regarding the registered sale deeds executed by defendant No.1 in favour of defendant Nos.2 to 4.

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The parties are directed to appear before the trial Court on 29^th October 2025 without awaiting any further notice from the trial Court.

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The Office is directed to transmit the records to the trial Court, forthwith.

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