K Channamma D/O B Kumargowda W/O K Nagaraj Vs B. Kamalamma W/O Kumargouda

¶1

1 -

¶2

RFA No.100127 of 2024

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 8^TH DAY OF DECEMBER, 2025 PRESENT

¶4

THE HON'BLE MR. JUSTICE R.DEVDAS

¶5

AND

¶6

THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI

¶7

REGULAR FIRST APPEAL NO.100127/2024 (PAR/POS)

¶8

BETWEEN:

¶9

SMT. K. CHANNAMMA, D/O. B. KUMARGOWDA W/O. K. NAGARAJ, AGE: 65 YEARS, OCC: HOUSEHOLD, R/O. #125/C, L.B.COLONY, SANDUR, BALLARI-583 119.

¶10

APPELLANT

¶11

(BY SRI. R.S.SIDHAPURKAR, ADVOCATE FOR SRI. R.M.JAVED AND SRI. ANWAR BASHA B., ADVOCATES)

¶12

AND:

¶13

SMT. B. KAMALAMMA W/O. KUMARGOUDA, AGE: 68 YEARS, OCC: HOUSEHOLD, R/O. NO. 2199, BKG MANSION, KHB COLONY, SANDUR, BALLARI-583 119.

¶14

SRI. B. NAGANAGOUDA, S/O. LATE B. KUMARGOUDA, AGE: 64 YEARS, OCC: BUSINESS, R/O. NO. 2199, BKG MANSION, KHB COLONY, SANDUR, BALLARI-583 119.

¶15

SMT. B. SHANTHA D/O. LATE B. KUMARGOUDA, AGE: 56 YEARS, OCC: HOUSEHOLD, R/O. NO. 2199, BKG MANSION, KHB COLONY, SANDUR, BALLARI-583 119.

¶16

2 -

¶17

RFA No.100127 of 2024

¶18

SRI. B.K.BASAVARAJ, S/O. LATE B. KUMARGOUDA, AGE: 53 YEARS, OCC: BUSINESS, R/O. NO.2199, BKG MANSION, KHB COLONY, SANDUR, BALLARI-583 119.

¶19

5 . SRI. B. RUDRAGOUDA, S/O. LATE B. KUMARGOUDA, AGE: 49 YEARS, OCC: BUSINESS, R/O. NO. 2199, BKG MANSION, KHB COLONY, SANDUR, BALLARI-583 119.

¶20

RESPONDENTS

¶21

(BY SMT. PADMAJA S.TADAPATRI, ADVOCATE FOR R3; SRI. PRABHULINGA K.NAVADAGI, SENIOR COUNSEL FOR SRI. K.L.PATIL, ADVOCATE FOR C/R1, R2, 4 AND R5)

¶22

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 19.01.2024 PASSED IN O.S. NO. 51/2022 ON THE FILE OF SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, AT KUDLIGI, SITTING AT SANDUR, AND THEREBY RESTORE THE SUIT, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.

¶23

THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED ON 26.11.2025, COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’ THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

¶24

CORAM: THE HON'BLE MR. JUSTICE R.DEVDAS

¶25

AND

¶26

THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI

¶27

3 - RFA No.100127 of 2024

¶28

CAV JUDGMENT

¶29

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

¶30

This regular first appeal is filed by the plaintiff in O.S. No. 51/2022, invoking Section 96 of the Code of Civil Procedure, being aggrieved of the rejection of the plaint, while the trial Court allowed the application filed by the defendants under Order VII Rule 11 of CPC.

¶31

For the sake of convenience, the parties shall be referred to in terms of their ranking before the trial Court.

¶32

The plaintiff being one of the sisters of the defendants, filed the suit with the following prayer:

¶33

a) That the plaintiff may kindly be awarded with 1/6^th share in the suit properties by way of partition and separate possession with separate meets and bounds and by putting them in actual, physical possession of the same by appointing Court Commissioner if necessary;

¶34

b) Direct the defendants to render accounts of the Schedule B and C Firms from the date of death of the propositus Shri B. Kumargouda till the date of decree/ final decree or in the alternative appoint an independent auditor Court Commissioner to render the accounts and

¶35

c) Thereby, direct the defendants to grant/ allot/ pay the mesne profits from the date of death of Shri B.Kumaragouda till the date of decree/ final decree, and

¶36

d) And any other order/ relief deems fit in the circumstances of the case, in the interest of justice.

¶37

4 -

¶38

RFA No.100127 of 2024

¶39

It is stated in paragraph No. 6 of the plaint that defendant No. 5 got executed an alleged family partition deed on 30.12.2011 and rectification deed on 03.01.2012 before the Sub Registrar, Sandur, which was executed between the plaintiff and defendants in respect of only portion / part of the assets left behind by the propositus B.Kumaragouda. It is contended that now the defendants are denying equal share to the plaintiff in the entire assets left behind by the said propositus. The trial Court, having considered the contentions of the plaintiff and having gone through the plaint averments and the subject matter of the suit, as shown in the suit schedule, came to a conclusion that there is no denial on the part of the plaintiff that a partition deed and rectification deed were executed and registered on 30.12.2011 and 03.01.2012 respectively and the suit is filed in the year 2022, nearly 11 years after the registered partition deed. The trial Court therefore held that on the one hand the plaintiff alleges compulsion, coercion and undue influence by the defendants while admitting division of the family

¶40

5 -

¶41

RFA No.100127 of 2024

¶42

properties in the registered partition deed, but the plaintiff has failed to raise a challenge to the said partition deed and rectification deed. On the other hand, what is described in the suit schedule includes the properties that are already divided amongst the family members in the partition deed and rectification deed. In that view of the matter, the application filed by the defendants under Order VII Rule 11 was allowed while rejecting the plaint.

¶43

Learned counsel for the plaintiff, Sri R.S.Siddapurkar contended that the plaintiff has clearly stated in the plaint that there was a registered partition deed and rectification deed executed between the parties. However, it is clearly stated in the plaint that the partition was only in respect of a portion of the assets left behind by Sri B.Kumaragouda. The plaint therefore restricts her claim in respect of those properties, whether movable or immovable, which were not part of the partition deed and rectification deed.

¶44

6 -

¶45

RFA No.100127 of 2024

¶46

At this juncture, learned Senior Counsel Sri

¶47

Prabhuling Navadgi appearing for the defendants took this Court through Schedule-A pertaining to the vehicles owned by Sri B.Kumaragouda either in his individual name or in the name of his partnership firms and or Companies. It was pointed out that all the 32 vehicles which were listed in Schedule-A find reference in the partition deed and rectification deed. Similarly, in Schedule-B is the description of the various partnership firms belonging to the family and each and every partnership firm and its division finds place in the partition deed and rectification deed. Same is the case with respect to Schedule-C which pertain to the Companies belonging to Sri B.Kumaragouda and his family and all the Companies which existed prior to the partition deed and rectification deed have been dealt in the partition deed and rectification deed. Learned Senior Counsel submitted that those Companies which were registered subsequent to the execution of the partition deed and rectification deed commencing from Sl. No. 6 in ‘C’ Schedule to Sl. No. 14 were admittedly

¶48

7 -

¶49

RFA No.100127 of 2024

¶50

registered between 2012 to 2016 and therefore they cannot be the subject matter of the suit.

¶51

Learned Senior Counsel submitted that if there were any properties belonging to the joint family which were not subject matter of the partition deed or rectification deed then probably the plaintiff could have maintained the suit. The trial Court has rightly arrived at a conclusion that merely by stating that the plaintiff is claiming partition and separate possession of those properties which were not the subject matter of the partition deed and rectification deed, if the suit was filed listing out those properties which were not part of the partition deed, the plaintiff could have maintained the suit. However in reality, it can be seen that all the properties mentioned in the suit schedule, be it movable or immovable properties, all the items of suit schedule have undergone partition and each of the family members have taken their share without demur. The trial Court is therefore right in coming to a conclusion that the plaintiff

¶52

8 -

¶53

RFA No.100127 of 2024

¶54

has come to Court with unclean hands and is misleading the Court, only to enforce a right which is not available to the plaintiff.

¶55

Insofar as the question of limitation is concerned,

¶56

learned Senior Counsel submitted that the trial Court has rightly accepted reliance placed by the defendants on Khatri Hotels Pvt. Ltd. Vs. Union of India & Ors. Reported in (2011) 9 SCC 126 , where it was held that the period of limitation begins to run from the date when the right to sue first accrues. To put it differently, successive violation will not give rise to fresh cause and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the day when the right to sue first accrued. The trial Court rightly held that if the plaintiff was aggrieved of inequitable partition, on the ground of misrepresentation, fraud or coercion, then the plaintiff should have filed the suit challenging the partition deed and rectification deed, within a period of three years commencing from the date of the partition deed. The trial

¶57

9 -

¶58

RFA No.100127 of 2024

¶59

Court rightly held that the suit is filed 11 years beyond the period of limitation and therefore the plaint was rightly rejected, while invoking Rule 11(d) of Order VII of CPC.

¶60

Learned Senior Counsel further submitted that the trial Court is also right in coming to a conclusion that by clever drafting, the plaintiff has come up with an imaginary cause of action, while on the plain reading of the plaint, it is clear that it does not disclose a cause of action. The trial Court is right in holding that the plaint requires to be rejected on the ground of non disclosure of cause of action, in terms of Rule 11(a) of Order VII of CPC.

¶61

Heard learned counsel Sri R.S.Siddapurkar for the appellant-plaintiff, learned Senior Counsel Sri Prabhuling Navadgi for learned counsel Sri K.L. Patil for the respondents-defendants and perused the appeal memo.

¶62

At first blush, having regard to the averments made by the plaintiff in paragraph No. 3, it appears that although there was a registered partition dated 30.12.2011 and rectification deed dated 03.01.2012

¶63

10 - RFA No.100127 of 2024

¶64

executed between the parties, nevertheless some properties and assets left behind by the prepositus B.Kumaragouda were not part of the partition which took place earlier, the plaintiff is seeking partition of those properties and assets, and one would be tempted to accept the contention of the plaintiff. This averment coupled with the fact that no declaration is sought against the registered partition deed and rectification deed, could have been considered if the plaintiff had described in the suit schedule, properties which were not part of the earlier partition deed and rectification deed, and probably the rejection of the plaint could have been held as bad in law. However, it is clear from the submissions made on behalf of the defendants which remained uncontroverted at the hands of the plaintiff, that all the items of the suit schedule (A), (B) and (C) [except those Companies which were registered between 2012 to 2016 in items No. 6 to 14 of ‘C’ Schedule ] were part of the partition deed and rectification deed. Therefore, the trial Court is right in saying that the plaintiff has approached the Court with

¶65

11 -

¶66

RFA No.100127 of 2024

¶67

unclean hands. An irresponsible statement is made in paragraph No. 3 that the partition deed and rectification deed were in respect of a portion or part of the assets of the propositus. The trial Court is right in saying that an illusion of a cause of action is sought to be made out by the plaintiff.

¶68

It should also be held that the plaintiff has cleverly drafted the plaint, not seeking any declaration in respect of the registered partition deed and rectification deed, only to get over the problem of limitation. The plaintiff is aware of the fact that challenge should have been raised to the partition deed and rectification deed within a period of three years from the date of execution of the documents, since the plaintiff is one of the executants of the two instruments. Even otherwise, if the plaintiff is genuinely aggrieved that some properties, whether movable or immovable, belonging to the joint family were not divided amongst the members of the family in the partition deed and rectification deed, then the

¶69

12 -

¶70

RFA No.100127 of 2024

¶71

plaintiff was entitled to seek partition of such properties.

¶72

However, on facts it is clear that all items of the suit schedule (A), (B) and (C) which belonged to the joint family prior to 2011, have been divided amongst the family members in the partition deed dated 30.12.2011 and rectification deed dated 03.01.2012.

¶73

In the light of the above, this Court is of the considered opinion that there is no infirmity in the impugned order dated 19.01.2024 passed in O.S. No. 51/2022 by the learned Senior Civil Judge and J.M.F.C., at Kudligi, sitting at Sandur. Consequently, the regular first appeal stands dismissed.

¶74

Sd/(R.DEVDAS) JUDGE

¶75

Sd/(B. MURALIDHARA PAI) JUDGE

¶76

bvv CT: VH

K Channamma D/O B Kumargowda W/O K Nagaraj v. B. Kamalamma W/O Kumargouda

Case brief

What is this about?

What did the court decide?

K Channamma D/O B Kumargowda W/O K Nagaraj v. B. Kamalamma W/O Kumargouda

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Mallavva W/O Honkerappa Halavagal Vs Smt. Puttavva Alias Gangamalavva W/O Malleshappa Beeral

Kumar.Siddanagouda S/O. Songanagouda Patil Vs Smt.Ratnavva W/O. Somanagouda Patil

Kashimsab S/O Husensab Nadaf Vs Maktumbi W/O Pachesab Nadaf

Anand S/O Narayan Somanche Vs Padmaraj S/O Tavanappa Patil

Sri Parashuram S/O Venkappa Ballary Vs the State of Karnataka

Smt Prathiba Talapati W/O Davood Nadaf Vs State of Karnataka