Smt. Kavita W/O. Pandappa Alias Panduraddi Sataraddi Vs Sanjeevaraddi S/O Vasappa Giraddi

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NC: 2025:KHC-D:13184-DB RFA No. 100272 of 2019 C/W RFA No. 100191 of 2021

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 24^TH DAY OF SEPTEMBER 2025

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PRESENT

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THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND

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THE HON'BLE MR. JUSTICE C.M. POONACHA REGULAR FIRST APPEAL NO. 100272 OF 2019 (PAR/POS-)

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C/W

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REGULAR FIRST APPEAL NO. 100191 OF 2021

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IN RFA NO.100272 OF 2019 BETWEEN:

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SANJEEVARADDI S/O. VASAPPA GIRADDI

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AGE: 66 YEARS, OCC: AGRICULTURE, R/O: YAREKUPPI VILLAGE, TQ: RANEBENNUR-581115, DIST: HAVERI.

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YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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SMT. SHAILA W/O. SANJEEVARADDI GIRADDI AGE: 64 YEARS, OCC: HOUSEHOLD WORK, R/O: YAREKUPPI VILLAGE, TQ: RANEBENNUR-581115, DIST: HAVERI.

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BASAVARADDI S/O. VASAPPA GIRADDI AGE: 64 YEARS, OCC: AGRICULTURE, R/O: YAREKUPPI VILLAGE, TQ: RANEBENNUR-581115, DIST: HAVERI.

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SMT. LAXMI W/O. BASAVARADDI GIRADDI AGE: 62 YEARS, OCC: HOUSEHOLD WORK, R/O: YAREKUPPI VILLAGE, TQ: RANEBENNUR-581115,

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HC-KAR

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DIST: HAVERI.

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VENKARADDI S/O. VASAPPA GIRADDI AGE: 62 YEARS, OCC: AGRICULTURE, R/O: YAREKUPPI VILLAGE, TQ: RANEBENNUR-581115, DIST: HAVERI.

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SMT. LALITA W/O. VENKARADDI GIRADDI AGE: 60 YEARS, OCC: HOUSEHOLD WORK, R/O: YAREKUPPI VILLAGE, TQ: RANEBENNUR-581115, DIST: HAVERI.

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...APPELLANTS

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(BY SRI. SOURABH A.SONDUR, AMICUS CURIAE)

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AND:

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SMT. KAVITA W/O. PANDAPPA @ PANDURADDI SATARADDI, AGE: 66 YEARS, OCC: HOUSEHOLD WORK, R/O: SWAROOP, BEHIND SHANKAR MATH, YALAKKI SHETTER COLONY, DHARWAD-580004.

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SMT. KAMALAVVA W/O. TIRAKAPPA GIRADDI, AGE: 68 YEARS, OCC: HOUSEHOLD WORK, R/O: YAREKUPPI VILLAGE, TQ: RANEBENNUR-581115, DIST: HAVERI.

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VISHNAPPA S/O. BHIMAPPA HULLATTI AGE: 64 YEARS, OCC: AGRICULTURE, R/O: BELAVAGI, TQ AND DIST: HAVERI-581110.

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…RESPONDENTS

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(BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE FOR R1; NOTICE TO R2 IS SERVED;

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HC-KAR

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APPEAL AGAINST R3 STANDS DISMISSED VIDE ORDER DATED 19.07.2024)

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THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 AND 2 OF CPC 2002 AGAINST THE JUDGMENT AND DECREE DATED 10.10.2018 PASSED IN O.S.NO.76/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, RANEBENNUR, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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IN RFA NO.100191 OF 2021: BETWEEN

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SMT. KAVITA W/O. PANDAPPA @ PANDURADDI SATARADDI, AGE: 72 YEARS, OCC: HOME MAKER, R/O. SWAROOP-BEHIND SHANKAR MATH, YALAKKI SHETTER COLONY, DHARWAD-580004.

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...APPELLANT

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(BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE)

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AND:

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SRI. SANJEEVARADDI S/O. VASAPPA GIRADDI, AGE: 71 YEARS, OCC: AGRICULTURE, R/O. YAREKUPPI VILLAGE, TQ: RANEBENNUR, DIST: HAVERI-581115.

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HC-KAR

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SMT. SHAILA W/O. SANJEEVARADDI GIRADDI, AGE: 69 YEARS, OCC: HOME MAKER, R/O. YAREKUPPI VILLAGE, TQ: RANEBENNUR, DIST: HAVERI-581115.

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SRI. BASAVARADDI S/O. VASAPPA GIRADDI AGE: 69 YEARS, OCC: AGRICULTURE, R/O. YAREKUPPI VILLAGE, TQ: RANEBENNUR, DIST: HAVERI-581115.

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SMT. LAXMI W/O. BASAVARADDI GIRADDI, AGE: 63 YEARS, OCC: HOME MAKER, R/O. YAREKUPPI VILLAGE, TQ: RANEBENNUR, DIST: HAVERI-581115.

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SRI. VENKARADDI S/O. VASAPPA GIRADDI, AGE: 67 YEARS, OCC: AGRICULTURE, R/O. YAREKUPPI VILLAGE, TQ: RANEBENNUR, DIST: HAVERI-581115.

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SMT. LALITA W/O. VENKARADDI GIRADDI, AGE: 65 YEARS, OCC: HOME MAKER, R/O. YAREKUPPI VILLAGE, TQ: RANEBENNUR, DIST: HAVERI-581115.

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HC-KAR

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SMT. KAMALAVVA W/O. TIRAKAPPA GIRADDI, AGE: 67 YEARS, OCC: HOME MAKER, R/O. YAREKUPPI VILLAGE, TQ: RANEBENNUR, DIST: HAVERI-581115.

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…RESPONDENTS

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(BY SRI. SOURABH A.SONDUR, AMICUS CURIAE)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 10.10.2018 PASSED IN O.S.NO.76/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, RANEBENNUR, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 20.08.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA

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HC-KAR

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CAV JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE C.M.POONACHA)

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Both the first appeals are filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908¹ calling in question the judgment and decree dated 10.10.2018 passed in O.S.No.76/2013 by the Principal Senior Civil Judge and JMFC, Ranebennur² , whereunder the suit for partition has been partly decreed awarding 1/16^th share in suit schedule-A properties and suit schedule B(a) to (d) properties to the plaintiff. The suit in respect of suit schedule-B(e) property and suit schedule-C property has been rejected.

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The parties will be referred as per their rank before the Trial Court for the sake of convenience.

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The plaintiff/Smt.Kavita @ Khasavva is the daughter

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of one Vasappa, who is the propositus. The defendant Nos.1, 3, 6 and 8 are the brothers of the plaintiff. The genealogy of the parties is reproduced hereunder for ready reference.

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1 Hereinafter referred to as ‘CPC’

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2 Hereinafter referred to as ‘Trial Court’

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HC-KAR

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Vasappa (Original Propositus) (Died on 26.09.1996)

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Smt. Yallawwa (Died on 18.09.2011)

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Kavita Sanjeevaraddi Dyavaraddi Basavaraddi Venkaraddi @ Khasavva (Deft.1) (Deft.3) (Deft.6) (Deft.8) (Plff.)

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It is the case of the plaintiff that the original propositus-Vasappa acquired the suit schedule properties during his lifetime and that he died leaving behind the plaintiff, defendant Nos.1, 3, 6 and 8 as his legal heirs and no partition was effected in respect of the suit schedule properties. That, after the death of the original propositus-Vasappa, the plaintiff, defendant Nos.1, 3, 6 and 8 have been enjoying the suit schedule properties and are in possession and enjoyment of the same as joint owners. It is the case of the plaintiff that defendant Nos.1, 3, 6 and 8 have created a consent deed dated 20.04.2000 in the name of wife of the propositus viz., Yallawwa and in the name of the plaintiff in respect of agricultural lands, which are item Nos.B, D and I of schedule ‘A’ and item No.E of schedule ‘B’ properties. That, based on the said consent deed, M.E.Nos.5983 and 4215 have been created. That, the mother of

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the plaintiff was illiterate and a rustic village woman. That

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neither the plaintiff nor her mother is bound by any of the mutation entries created.

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It is the further case of the plaintiff that defendant Nos.1, 3, 6 and 8 have got created another document styled as ‘Partition Deed’ dated 21.03.2012 and that the plaintiff is not a party to the said partition deed. That, based on the said partition deed, defendant Nos.1, 3, 6 and 8 have illegally sold item No.E of schedule-B in favour of defendant No.10 vide registered Sale Deed dated 02.03.2005 for a total sale consideration of ₹45,000/-. That, a tractor (schedule C property) has also been sold in favour of the defendant No.11. Hence, the plaintiff filed a suit seeking for the following reliefs:

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“a) The Hon’ble Court be pleased to pass a decree of declaration declaring that the alienation of suit Schedule-B 3II(E) immovable property in favour of defendant No.10 and the alienation of the property in Schedule-C3II(A) movable property in favour of defendant No.11 are not binding upon the legitimate share of the plaintiff.

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b) Further a Decree for partition and separate possession in the suit schedule agricultural lands A, C, E, F, G, H self-acquired properties to extent of 1/5^th share and notional partition and separate

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possession in all the remaining suit movable and immovable properties along with mesne profit, be kindly passed;

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c) Costs of the suit be awarded;

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d) Such other relief as the court deems fit and proper

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under the circumstances of the case granted.”

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The defendant Nos.1 to 9 entered appearance in the

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suit. The defendant No.1 filed a written statement, which has been adopted by defendant Nos.2 to 9. In the written statement, it is contended that item Nos.B, D and I of the schedule-A are only the properties of the propositus, whereas the other items Nos. A, C, E, F, G and H of the schedule-A are the self-acquired properties of defendant Nos.1 to 9. That, the defendant Nos.1 to 9 had contributed for purchase of the said properties and the sale deeds were executed in favour of defendant Nos.1 to 6. That, the defendants used to cultivate the lands of one Shivaraddi Gireddi (son of the paternal uncle of the parties) and one Suresh Shejwadkar on lease basis and out of the income derived from the said cultivation, the properties have been purchased. It is further contended that in the year 2001 itself, the properties have been partitioned, which has been reduced

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into writing on 21.03.2012, whereunder the properties have been divided and the defendants are in exclusive possession of the said properties as per the said partition. It is further contended that the consent deeds have been executed by the plaintiff and mother of the parties out of their own free love and affection and as an afterthought, the suit is filed.

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7. Consequent to the pleadings of the parties, the Trial

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Court framed the following issues and recasted issues:

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“ISSUES

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1. Whether the plaintiff proves that, the plaintiff and defendants No.1 to 10 constitute a Hindu joint family?

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2. Whether the plaintiff further proves that,suit schedule properties are the ancestral properties of plaintiff and defendants No.1 to 10?

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3. Whether the plaintiff further proves that, she is entitled for 1/5th share in the suit schedule properties?

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4. Whether plaintiff further proves that, share in suit schedule properties-B(3)(ii)(e) in favour of defendant No.10 and suit schedule-C-3(2A) property in favour of defendant No.11 are not binding on the legitimate share of the plaintiff?

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5. Whether plaintiff is entitled for the relief of declaration as sought for?

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6. Whether plaintiff is entitled for partition and separate possession of her 1/5th share in the suit schedule properties?

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7. Whether defendants prove that, there was a partition effected on 21.03.2012 in between parties to the suit?

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8. Whether defendants prove that, this Court has no pecuniary jurisdiction to entertain the suit?

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9. To what order or decree?

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RECASTED ISSUES

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1. Whether the plaintiff proves that, the plaintiff and defendant Nos.1, 3, 6 and 8 constitute a Hindu joint family?

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2. Whether the plaintiff further proves that, the suit schedule properties are the ancestral properties of herself and defendants 1, 3, 6 and 8?

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7. Whether the defendants prove the alleged partition dated 21.03.2012?”

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In order to prove her case, the plaintiff examined

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herself as PW1 and one witness as PW2. Ex.P1 to Ex.P55 have been marked in evidence. The defendant No.1 has been

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examined as DW1 and three witnesses as DW2 to DW4. Ex.D1 to Ex.D13 have been marked in evidence. The Trial, Court by its judgment and decree dated 10.10.2018, decreed the suit in part and passed the following:

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“ORDER

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The suit filed by the plaintiff is hereby partly decreed. It is held that, the plaintiff is entitled to get 1/16th share in suit scheduleA properties and suit schedule-B(a), (b) properties. The prayer for partition with respect to suit schedule-B(e) property RS.No.50/A/1C plot No.19 and prayer for partition with respect to suit schedule-C property is rejected.

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Further, the prayer for declaration as sought for by the plaintiff is also rejected.

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The plaintiff can obtain partition and separate possession of her 1/16th share in the suit schedule properties through process of Court as provided U/s.54 of CPC.

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Having regard to the nature of the suit, and relationship between the parties, both the parties are hereby directed to bear their own cost.

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Draw preliminary decree accordingly.”

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HC-KAR

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Being aggrieved, the plaintiff has preferred RFA No.100191/2021 and defendant Nos.1, 2 and 6 to 9 have preferred RFA No.100272/2019.

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The counsel appearing for the appellants i.e., defendant Nos.1, 2, 6 to 9 in RFA No.100272/2019, who also appeared for the contesting respondents in RFA No.100191/2021 having retired from appearing for the parties, this Court requested the learned counsel Sri.Sourabh A Sondur to appear as Amicus Curiae for the said parties and assist the Court.

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The submissions of the learned counsel for the appellants in both the appeals, who are the contesting respondents in their respective appeals, have been heard and the materials on record including the records of the Trial Court have been perused.

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The questions that arise for consideration are:

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(i) Whether the Trial Court was justified in recording

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a finding that the suit schedule ‘A’ and ‘B’ properties are the joint family properties and whether the defendants failed to prove the

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partition deed dated 21.03.2012 and thereby answering issue Nos.1, 2 and 7 in favour of the plaintiffs?

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(ii) Whether the Trial Court was justified in recording a finding that the sale of the schedule-B(3)(ii)(e) property and schedule-C property cannot be considered as illegal and not for family necessity, and as to whether the plaintiff was entitled to the relief of declaration as sought for in the plaint and accordingly, answering issue Nos.4 and 5 in the negative?

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(iii) Whether the judgment and decree passed by the

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Trial Court is liable to be interfered with?

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Reg.Question No.(i) and (ii):

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In the present suit, suit schedule ‘A’ property constitutes agricultural lands at item Nos.A to I, suit schedule ‘B’ property constitutes house properties at item Nos.A to E, and suit schedule ‘C’ property is a movable property. The details of schedule ‘A’ and ‘B’ properties are as under:

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SCHEDULE – A

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		AGRICULTU	RAL LAN Area	DS Assessment	Approximate
Item No.	Village	Sy.No.	A-G	Rs.Ps.	Market Value in Lakhs
A	Hulihalli	125/1C+2	4-03	10.68	40,00,000-00
B	Hulihalli	168/1	5-07	18.28	50,00,000-00
C	Yerekuppi	69/3B	4-05	14.16	50,00,000-00
D	Benakanakonda	42/2A	5-08	07.13	60,00,000-00
E	Yerekuppi	18/1+2B	3-23	11.31	40,00,000-00
F	Yerekuppi	73/3	3-08	10.21	30,00,000-00
G	Yerekuppi	73/4	1-08	03.83	10,00,000-00
H	Yerekuppi	73/2	2-00	06.38	20,00,000-00
I	Hulihalli	172/2	5-09	15.47	50,00,000-00
	Total		3-11		3,50,00,000-00

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		SCHE	DULE – B
		HOUSE A	ND BACKYARD
Item No.	Village	Property VPC No.	Description of house and backyard	Approximate Market Value in Lakhs
A	Yerekuppi	62	Now RCC House under construction	20,00,000-00
B	Yerekuppi	63	-do-	20,00,000-00
C	Yerekuppi	11B/1	Backyard (Now construction RCC House)	20,00,000-00
D	Yerekuppi	11B/2	-do-	20,00,000-00
E	Yerekuppi	Sy.No.50/A-1C Plot No.19	N.A. land measuring 03G-03Annas	02,00,000-00
		Total		82,00,000-00

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As noticed above, in the written statement, the defendant No.1 has admitted that the properties at item Nos.B, D and I of the suit schedule ‘A’ are the properties held by the propositus, whereas the other properties are the self-acquired properties of the defendant Nos.1 to 9. The defendants have also contended that the partition dated 21.03.2012 has been entered into where there was a prior partition. It is also contended that the plaintiff and her mother have executed a consent deed dated 20.04.2002 relinquishing their rights.

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The Trial Court has re-casted issue Nos.1, 2 and 7 as to whether the plaintiff proves that the plaintiff and defendant Nos.1, 3, 6 and 8 constitute a Hindu joint family and that the suit schedule properties are the ancestral properties of herself and defendant Nos.1, 3, 6 and 8 as also whether the defendants prove the alleged partition deed dated 21.03.2012. In this context, plaintiff examined herself as PW1 and a witness, who claims to have acquaintance with the family of the plaintiff and defendants, has been examined as PW2. The defendant No.1 was examined as DW1. DW2 is said to be the attesting witness to the unregistered consent deed dated 20.04.2000 (Ex.D2). DW3 and

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DW4 are the witnesses examined on behalf of the defendants, who claim to have acquaintance with the family of the plaintiff and defendants, who have also deposed regarding the execution of the relinquishment deed by the plaintiff.

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As noticed above, the defendants admitted that the item Nos.B, D and I of suit schedule ‘A’ properties and item No.E of suit schedule ‘B’ property are the ancestral properties of the plaintiff and the defendants, and they specifically disputed the contention of the plaintiff that item Nos.A, E, F, G, H and I of suit schedule ‘A’ properties are the ancestral properties of the plaintiff and defendants. It is contended that item Nos.E and F of the suit schedule ‘A’ properties are the self-acquired properties of defendant No.6, item Nos.G and H of the suit schedule ‘A’ properties are the self-acquired properties of defendant No.8 and item No.C of suit schedule ‘A’ property is the self-acquired property of the defendant No.3 and that the said properties were purchased by the said defendants independently out of their own income. It was the contention of the defendant No.1 that the item No.A of suit schedule ‘A’ property is the self-acquired property of defendant No.1.

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With regard to the item No.A of suit schedule ‘A’ property i.e., R.S.No.125/1C+2 measuring 4 Acres 3 Guntas of land, the same was acquired in the name of defendant No.1 vide registered sale deed dated 30.06.1984 (Ex.D12). With regard to the item No.E of suit schedule ‘A’ property i.e. R.S.No.18/1+2B measuring 3 Acres 23 Guntas, as per MR No.25/2012-13, the same is standing in the name of defendant No.6. Similarly, item No.F of suit schedule ‘A’ property i.e. R.S.No.73/3 measuring 3 Acres 8 Guntas of land has been acquired by defendant No.6 vide registered sale deed dated 15.05.1992, whereunder it is stated that defendant No.6 purchased the northern portion of R.S.No.73/1 out of 16 Acres 16 Guntas of land. Item No.G of suit schedule ‘A’ property is R.S.No.73/4 measuring 1 Acre 8 Guntas of land standing in the name of defendant No.8 and item No.H of suit schedule ‘A’ property is measuring 2 Acres of land standing in the name of defendant No.8. Vide sale deed dated 15.05.1992 (Ex.D10), the southern portion of R.S.No.73/1 measuring 3 Acres 8 Guntas out of 6 Acres 16 Guntas land is standing in the name of defendant No.8. The item No.C of suit schedule ‘A’ property bearing R.S.No.69/3B measuring 4 Acres 5 Guntas is

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standing in the name of defendant No.3 by virtue of registered sale deed dated 11.04.1988 (Ex.D11).

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PW1, in the cross-examination, has stated that the properties purchased in the name of defendant Nos.1, 3, 6 and 8 were by her father out of joint family funds and not out of the independent income of the said defendants. It is further noticed that as on the date of acquisition of the said properties, the propositus-Vasappa was alive. Although it was contended on behalf of the defendants that defendant No.1 was doing tobacco business, defendant Nos.3 and 6 were working in seeds company and defendant No.8 was doing agriculture of other lands on ‘Lavani’ basis and accordingly, all of them were having independent source of income out of which they purchased the suit schedule properties, the said defendants have not adduced any oral or documentary evidence in that regard except their self-serving testimony.

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With regard to the contention of the defendants regarding execution of the alleged partition deed dated 21.03.2012 executed between defendant Nos.1, 2, 3, 6, 7 and 8, it is forthcoming that the plaintiff and her mother are not parties

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to the said document. Hence, the said partition deed dated 21.03.2012 will not bind the plaintiffs. It is also pertinent to note here that the defendant No.1 in the written statement has contended that in the year 2001, ‘Apasat Vatni’ was effected and the same was reduced into writing on 21.03.2012. However, in the partition deed dated 21.03.2012 (Ex.D5), there is no recital about effecting the partition in the year 2001 by virtue of ‘Apasat Vatni’ and reducing the same into writing.

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With regard to contention of the defendants regarding the plaintiff and her mother having executed consent deed (Ex.D2) in respect of the item Nos.B, D and I of suit schedule ‘A’ properties and item No.E of suit schedule ‘B’ property in the names of the sons of the propositus-Vasappa i.e., defendant Nos.1, 3, 6 and 8, the defendants have produced certified copies of U-Form notices pertaining to the item Nos.B, D and I of suit schedule ‘A’ properties as Ex.D3 and Ex.D4. Further, Varadi application (Ex.D6) submitted by defendant No.6 on 24.04.2000 to enter the name of four sons of propositusVasappa and the Varadi application dated 21.09.1999 (Ex.D7) were submitted after the death of Vasappa on 26.09.1996. It is

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further forthcoming that apart from the said Exs.D3, D4, D6 and D7, no other documents have been produced with regard to the alleged consent given by the plaintiff.

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The Trial Court considering the said aspects of the matter with regard to issue Nos.1, 2 and 7 has held as follows:

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“18. From the afore said documents, as well as from the admissions of defendants in their written statement, it is clear that, the suit schedule-A(b), A(i), A(d) and B(e) properties were ancestral properties of plaintiffs and defendants. Those properties were earlier standing in the name of propositor Vasappa. Now they are standing in the names of defendant No.1, 3, 6 and 8 as it is mentioned above. Suit schedule-B(e) property is now standing in the name of defendant No.10.

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19. It is the specific contention of the defendant No.1 that, the plaintiff and her mother have given up their right with respect to the suit schedule-A(b), A(i), A(d), B(e) ancestral properties in favour of 4-sons of propositor Vasappa and they executed the consent deed and they have also signed to the U-form notice. This fact is also stated by DW.1 in his examination in chief filed by way of affidavit. The defendants have produced Ex.D.2 consent deed alleged to have been executed by the plaintiff and her mother Yallavva

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W/o.Vasappa Gireddi with respect to the suit scheduleA(b), A(d), A(i) and B(e) properties in the name of 4- sons of propositor Vasappa. The plaintiff has denied the execution of the said document. PW.1 in the suit plaint as well as in her chief examination as well as in her cross examination has specifically contended that, the defendant No.1 has obtained her signature and signature of her mother on a white blank paper by stating that, their signature is required for obtaining death certificate and for discharging the loan and their after, they have got created the alleged consent deed and on the basis of the said consent deed, they have transfer the khatas of aforesaid ancestral properties. Ex.D.3 and 4 are the certified copies of the U-form notices pertaining to suit schedule-A(b), A(i), and A(d) properties. The defendants have not made any efforts to summon the original documents pertaining to Ex.D.3 and 4 proceedings. Ex.D.6 is the varadi application submitted by defendant No.6 on 24.04.2000 to enter the name of 4-sons of Vasappa who was died on 26.09.1996 by stating that, the daughters of Vasappa and wife of Vasappa have given consent. The said document is also the certified copy. Ex.D.7 is the varadi application dated 21-09.1999 to enter the names of sons of Vasappa, after the death of Vasappa on 26.09.1996. Only on the basis of unregistered consent deed, it cannot be come to the conclusion that, the plaintiff and her mother have given up their right with respect to the suit scheduleA(b), A(i), A(d) and B(e) ancestral properties in favour

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of 4-sons of Vasappa. No mutation effected on the basis of the said varadi application entering the name of the 4-sons of Vasappa is also produced by the defendants. No documents effected as per the U-form notices dated 03.04.2004 is also produced by the defendants. Mere mutations of ancestral properties in the name of defendant No.1, 3, 6 and 8 alone cannot be considered as partition by metes and bounds. Only on the basis of the said unregistered consent deed alleged to have executed by the plaintiff and her mother and on the basis of alleged signature of the plaintiff and her mother on U-form notices, it cannot be come to the conclusion that, the plaintiffs have given up their rights with respect to the suit schedule ancestral properties, which are referred above. Relinquishment of right has to be done only through registered document.

¶184

20. The plaintiff has produced the alleged partition deed dated 21.03.2012 executed in between defendant No.1, 2, 3, 6, 7 and 8. The plaintiff and her mother are not parties to the said alleged partition deed. Further, in the said partition deed, there is no specific recital about the plaintiff and her mother given up their rights with respect to the ancestral properties in favour of 4- sons of propositor Vasappa. As it is mentioned earlier, the defendant No.1 in the written statement has contended that in the year 2001, Apsat Partition was effected, and the same was reduced into writing on 21.03.2012. But, in Ex.P.5 there is no

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recital about effecting of partition in the year 2001 in Apsat and reducing into writing the terms of the said Apasat partition on 21.03.2012. As such, Ex.D.5 cannot be considered as memorandum of partition of earlier alleged Apsat Partition of the year 2001. The nature of Ex.D.5 is described as partition deed. As such, the said document has to be compulsorily registered. But, Ex.D.5 is an unregistered partition deed and the same is not effected in between all the joint family members. Under these facts and circumstances, I am of the opinion that, Ex.P.5 document cannot be considered as partition in the ancestral properties amongst all the joint family members by metes and bounds.

¶189

21. As per the present proposition of law, every partition deed should be compulsorily registered. In order to acquire any right as per the partition, the partition should be effected only through registered partition deed or through the decree of Court. In this case, the defendants have failed to produce any registered partition deed or decree of the Court, effecting partition in the ancestral properties. Further, the defendants have also failed to adduce any satisfactory evidence to gather the circumstances, in order to show the effecting of apsat partition in the year 2001 between plaintiff and defendants and they have acted upon the said apsat partition and the same was reduced into writing as per Ex.D.5 document. Under these facts and circumstances, I am of the

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opinion that, the contention of the defendant No.1 that, in the year 2001 Apsat partition was effected, and the same was reduced into writing on 21.03.2012 cannot be acceptable one. Further, the contention of the defendant No.1 that, the plaintiff and her mother have given up their right with respect to the ancestral properties by executing consent deed also cannot be acceptable one. The rights of the plaintiff with respect to the suit schedule ancestral properties is not diminished on the basis of alleged Ex.D.2 and 3 documents. Those documents are not proved by the defendants with sufficient oral and documentary evidence.

¶194

22. Further, it is to be noted here that, DW.1 during the course of cross examination has admitted that, the suit schedule-B(a) property bearing VPC.No.62 is the ancestral property. Ex.P.11 is the Assessment extract of the suit schedule-B(a) property. The name of propositor Vasappa was mentioned earlier and later on the name of defendant No.6 is mentioned. Further, Ex.P.12 is the Assessment Extract of suit scheduleB(b) property with respect to VPC.No.63. The name of Vasappa was mentioned earlier and later on the name of defendant No.3 is mentioned. The defendant No.3 and 6 have failed to adduce any sufficient evidence in order to prove that, on what basis their name is entered in the assessment extract. Their name was not entered as per any partition deed. Since the name of propositor Vasappa is mentioned with respect to the

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afore said 2-properties. The afore said 2-properties can also be considered as the ancestral joint family properties. Under these facts and circumstances, I am of the opinion that, the suit schedule-A(b), A(d), A(e), A(i), B(a), B(b) properties can be considered as the ancestral properties belonging to the propositor Vasappa and they are available for partition between the plaintiffs and defendants, and in those properties, no partition was effected between the plaintiffs and defendants by metes and bounds.

¶198

23. Even though the defendant No.1 has admitted in his written statement that, suit schedule-A(b), A(i), A(d) and B(e) properties are the ancestral properties of plaintiffs and defendants. He has specifically disputed the contention of the plaintiff that, suit schedule-A(a), A(e), A(f), A(g), A(h) and A(c) properties are the ancestral properties of the plaintiffs and defendants. According to the defendant No.1, the suit schedule-A(a) property is the self acquired property of defendant No.1. Suit schedule-A(e), A(f), A(g) and A(h) properties are the self acquired properties of the defendant No.6. Suit schedule-A(c) property is the self acquired property of defendant No.3. Further, according to the defendant, they have purchased those properties independently out of their own income. The defendant No.1 has contended that, he was doing Tobacco business, the defendant No.3 and 6 were doing job in seeds company and defendant No.8 was doing agriculture by cultivating the lands of

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others on Lavani basis and by crowing seeds of various crops. Defendant No.1 has also contended that, out of the independent income derived from the afore said sources they have purchased the afore said properties.

¶203

24. All the afore said facts are also stated by DW.1 in his examination in chief filed by way of affidavit. Suit schedule-A(a) property is the property bearing RS.No.125/1C+2 measuring 04-Acres 03-Gs., of land. Ex.D.12 is the sale deed dated 30-06-1984, standing in the name of defendant No.1. Ex.D.18 is the certified copy of the mutation bearing No.5030 standing in the name of defendant No.1 with respect to the suit schedule-A(a) property. Ex.P.1 is the RTC of the said property standing in the name of defendant No.1, as per MR.No.143/2011-12. Suit schedule-A(e) property is the property bearing RS.No.18/1+2B measuring 03Acres 23-Gs., of land. Ex.P.5 is the RTC., of A(e) property. The name of defendant No.6 is mentioned as the owner of the said property as per MR.No.25/201213. Suit schedule-A(f) property is the RS.No.73/3 measuring 03-Acres 08-Gs., of land. Ex.D.9 is the sale deed dated 15.05.1992 with respect to the afore said property. As per the said sale deed, the defendant No.6 has purchased Northern portion of RS.No.73/1 out of 16-Acres 16-Gs., of land in RS.No.73/1. Ex.P.20 is the mutation bearing No.1333 in the name of defendant No.6. The name of defendant No.6 was mutated with respect to the suit schedule-A(f) property as per the said sale deed. Ex.P.6 is the RTC

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of suit schedule-A(f) property. The name of defendant No.1 and his wife is mentioned as the owners as per MR.No.H-2/2012-13. Suit schedule-A(g) property is RS.No.73/4 measuring 01-Acres 08-Gs., of land and A(h) property is the property bearing RS.No.73/2 measuring 02-Acres of land. Ex.D.10 is the sale deed dated 15.05.1992 with respect to Southern 03-Acres 08-Gs., of land in RS.No.73/1 out of 06-Acres 16-Gs., of land. The said sale deed was executed in favour of defendant No.8. Ex.P.21 is the mutation bearing No.1334 with respect to suit schedule-A(g) and A(h) properties in the name of defendant No.8. Ex.P.7 and 8 are the RTC of the afore said two properties. The A(g) property is standing in the name of defendant No.6 and his wife and A(h) property is standing in the name of defendant No.8. Their names were entered as per MR.No.2/2012-13.

¶208

25. Suit schedule-A(c) property is the property bearing RS.No.69/3B measuring 04-Acres 05-Gs., of land. Ex.D.11 is the sale deed dated 11-04-1988 pertaining to the afore said property in the name of defendant No.3. Ex.P.19 is the certified copy of ME.No.1279 pertaining to suit schedule-A(c) property. As per the said mutation, the name of defendant No.3 is mutated with respect to the afore said property. Ex.P.3 is the RTC of suit schedule-A(c) property. The name of defendant No.3 is entered.

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26. According to the defendants, since suit scheduleA(a), A(e), A(f), A(g), A(h) and A(c) properties were standing in the name of defendant No.1, 3, 6 and 8 and since those properties were purchased in their names, and since their names is entered in the property extracts and demand extracts and revenue records of those properties, it is their self acquired properties. During the course of cross examination of PW.1, it was suggested that, the suit schedule-A(a) property was purchased in the name of defendant No.1 in the year 1984, suit schedule-A(c) property was purchased in the name of defendant No.3 in the year 1988, suit schedule-A(e) property was purchased in the name of defendant No.6 in the year 1992, suit schedule-A(f) property was purchased in the name of defendant No.6 in the year 1992, suit schedule-A(f) property was purchased in the name of defendant No.6 in the year 1992, A(g) property was purchased in the name of defendant No.8 in the year 1992 and suit schedule0A(h) property was purchased in the name of defendant No.8 in the year 1992. Though PW.1 has admitted the said suggestions, she has voluntarily replied that, those properties were got purchased in the name of defendant No.1, 3, 6 and 8 by her father and those properties were purchased out of the joint family funds and not out of the independent income of defendant No.1, 3, 6 and 8.

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27. If the date of purchase of the aforesaid properties are perused, it can be seen that, those properties were

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purchased in the year 1984, 1988 and 1992. At that time no partition was effected in the family of the plaintiff and the defendants. The plaintiff and defendants were residing jointly and they were the members of Hindu undivided joint family. Further, at that time, the plaintiff has also not executed any relinquishment deed as alleged by the defendant No.1. Further, there exists several ancestral properties in the name of propositor Vasappa. Propositor Vasappa was also alive as on the date of purchase of the afore said properties. The joint family has got sufficient source of income at that time. Since the joint family between the plaintiff and defendants was existing at the time of purchase of those properties, the presumption under the Hindu Law that, those properties are also the joint family properties can be raised. When the Hindu undivided joint family exists, any property acquired in the name of any joint family member is presumed to be the joint family property, unless and until the person who claims any of the joint family properties as his self acquired property has prove the said fact. The burden is upon the person who claims any of the property as his self acquired property to prove that, he has purchased the said property out of his own self earning without the aid and assistance of the joint family nucleus.

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28. As it is mentioned earlier, the defendant No.1 in his written statement has taken specific contention that, he was doing tobacco business and defendant

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No.3 and 6 are doing work in seeds company and they were earning Rs.20,000/- per month and defendant No.8 was doing agriculture of other land on Lavani basis and he was growing seeds and all of them have independent source of income and they have purchased the suit schedule-A(a), A(e), A(f), A(g), A(h) and A(c) properties out of their own independent income. But the defendant No.3, 6 and 8 have not adduced any sufficient evidence to prove that, they have got independent source of income for purchase of the afore said properties. The defendant No.3,6 and 8 have not adduced their independent evidence by deposing about the actual independent source of income which they had at the time of purchasing the properties in their name. They have also not produced any documents to show that, they have got independent source of income at the time of purchase of the afore said properties.

¶223

29. DW.1 during the course of his cross examination has admitted that, in the year 1984 his father had purchased the property in his name. DW.1 in his cross examination has stated that, he was doing tobacco business. He has also stated in his cross examination that, he has not produced any documents to show that, he was doing the tobacco business and his brothers were doing seeds business. If Ex.D.1 to 13 documents produced by the defendants perused, none of those documents are helpful to the defendant No.1 to 8 to prove their contention that, the defendant

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No.1, 3, 6 and 8 have got independent source of income for purchase of property in their name. Except the oral testimony of DW.1, there are no sufficient materials on record to prove that, the defendants were having independent source of income in the year 1984, 1988 and 1992 for purchase of the properties in their name.

¶228

30. As it is discussed earlier, the suit schedule-A(a). A(c). A(e). A(f). A(g) and A(h) properties were purchased in the name of defendant No.1, 3, 6 and 8 in the year 1984, 1988 and 1992. The defendants have failed to adduce any sufficient evidence to prove that, at that time they have got their own independent source of income for purchase of those properties. If the contention of the defendant No.1, 3, 6 and 8 that, those properties are their self acquired property is presumed to be true for a while, then what was the necessity for them to effect alleged partition during 2001 including those properties is not properly explained. What was the necessity for them to reduce the said partition into writing on 21.03.2012 is not properly explained. If those properties are really the self acquired properties of defendant No.1, 3, 6 and 8, they would not have partitioned those properties and they would not have included those properties in the alleged partition deed. They would have partitioned only the admitted ancestral properties. Defendant No.3 and 6 have not produced any documents to show that, they were doing work in seeds company at the

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time of purchase of properties in their name and they were having Rs.20,000/- per month. Further, the defendant No.8 has also not produced any documents to prove that, he was cultivating the lands of others on Lavani basis and he was growing seeds in the said lands and he was having independent source of income. Further, defendant No.1 has also not adduced any evidence to prove that, he was doing tobacco business and he was having independent source of income. Under these facts and circumstances, the contention of the defendant No.1, 3, 6 and 8 that, they have got independent source of income and out of the said independent source of income they have purchased the suit schedule-A(a). A(c). A(e). A(f). A(g) and A(h) properties cannot be acceptable one.

¶233

31. When the defendant No.1, 3, 6 and 8 have failed to prove their independent source of income for purchase of the aforesaid properties, those properties cannot be considered as their self acquired properties. As it is mentioned earlier, at the time of purchasing those properties, there was existence of joint family between the plaintiff and defendants. Further, at that time, the ancestral property was also in existence. There was more than 14-Acres of ancestral property existed at that time. Propositor Vasappa was also alive at that time. As such, as it is mentioned earlier, presumption that the properties acquired in the name of the defendant No.1, 3, 6 and 8 can be considered as joint family properties purchased out of the joint

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family nucleus can be raised. Since the defendants have failed to prove acquisition of those properties out of their own earnings, presumption that those properties are purchased out of the joint family income or joint family nucleus can be raised. Under these facts and circumstances, I am of the opinion that, suit schedule-A(a). A(c). A(e). A(f). A(g) and A(h) properties can also to be considered as the joint family properties of plaintiff and defendants.

¶238

32. The defendant No.1, 3, 6 and 8 have not produced the certified copy of the mutation No.H-143/2011-12 and H.145/2011-12 and other mutations mentioned in the RTC of the suit schedule-A(a). A(c). A(e). A(f). A(g) and A(h) properties. Further, they have also not produced any documents in order to show the partition which is referred in those RTC's for effecting mutations in their names. Mere purchase of the properties in the name of defendant No.1, 3, 6 and 8 itself and mere effecting of mutation in their names and mere entry of their names in the RTC., of those properties will not be sufficient to come to the conclusion that, the defendant No.1, 3, 6 and 8 are absolute owners of those properties for the reasons stated above. As it is discussed earlier, the defendants have failed to prove effecting of partition in any of the suit schedule properties in accordance with law. Further the defendant No.1, 3, 6 and 8 have also not made any counter claim in their written statement seeking declaration of their absolute ownership with respect to

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those properties which they claim to be their self acquired properties. Under these facts and circumstances, I am of the opinion that, all the suit schedule-A and B properties except suit schedule item No.B(e) property can be considered as the joint family ancestral properties of plaintiffs and defendants.

¶243

33. Suit schedule B(e) property bearing RS.No.50/A/1C plot No.19 is already sold by defendant No.1, 3, 6 and 8 in favour of defendant No.10 through the sale deed dated 02.3.2005 for consideration amount of Rs.40-lakhs. As per Ex.P.10, RTC., of the said property, the name of the defendant No.10 is mentioned as the owner on the basis of the sale deed. It is contention of the defendant No.1 that, the said property was sold for family and legal necessity. On the other hand, the plaintiff has contended that, the said property was not sold for any family or legal necessity. There are no sufficient materials on record to show that, the defendant No.1, 3, 6 and 8 have not sold the suit schedule-B(e) property bearing No.50/A/1C plot No.19 for family or legal necessity. Nothing has been elicited during the course of cross examination of DW.1 in order to prove that, the said property was not sold for family or legal necessity and the consideration amount of the sale deed of said property was not utilized for family or legal necessity. Since it is the contention of the plaintiff that, as on the date of filing of the suit of the plaintiff and defendants have been residing in joint family, there must be some

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family or legal necessity for which the said property would have been sold by defendant No.1, 3, 6 and 8 in favour of defendant No.10. The said sale deed was also executed in the year 2005. The plaintiff has not challenged the execution of the said sale deed within the period of 3-years from the date of execution of the said sale deed in favour of defendant No.19. Under these facts and circumstances, the suit schedule-B(e) property bearing plot No.19 of RS.No.50/A/1C cannot be considered as the joint family ancestral properties of plaintiff and defendants available for partition.

¶247

34. The plaintiff has shown the suit schedule-C property as Tractor and Trailer bearing Reg.No.MEZ83. The plaintiff in the suit plaint has not specifically pleaded about in whose name the said property is still existing. According to the plaintiff, the said property was sold in favour of defendant No.11. But, when the said property was sold in the name of defendant No.11 is not specifically pleaded. RC., book and other documents pertaining to the existence of suit schedule-C property is not produced by the plaintiff. Further, the plaintiff in the suit plaint has not specifically pleaded anything about the alienation of the suit schedule-C property in the name of defendant No.11. There are no sufficient materials on record to show in whose name suit schedule-C property was purchased and when it was sold and for what consideration amount it was sold. During the course of cross examination of DW.1 also no suggestions are put

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regarding the selling of suit schedule-C property and no suggestions were also put by stating that, the suit schedule-C property was not sold for the family or legal necessity. At present there are no sufficient materials on record to show about the existence of suit schedule-C property and to prove that, the said property is the ancestral joint family property. Even it is presumed that, the suit schedule-C property was earlier existence and it was sold, there are no sufficient materials on record to show that, the said property was not sold for the family or legal necessity. Hence, I am of the opinion that, the suit schedule-C property cannot be considered as the joint family property available for partition.

¶252

35. The plaintiff has proved issue No.1 with sufficient oral and documentary evidence and prove that, she and defendant No.1, 3, 6 and 8 constitute Hindu undivided joint family. This fact is already discussed in length earlier. Hence, I answer issue No.1 in affirmative. It is also discussed and held above that, the plaintiff has proved that, the suit schedule properties except B(e) and suit schedule-C properties are the joint family properties of plaintiff and defendants. The plaintiff has proved that, other properties are the joint family properties of herself and defendant No.1, 3, 6 and 8. Accordingly, I answer Issue No.2 in partly affirmative. It is also discussed and held above that, the defendants have failed to

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prove the alleged partition dated 21.3.2012. Hence, I answer issue No.7 in negative.”

¶256

It is clear and forthcoming from the findings of the

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Trial Court, as noticed above, that the Trial Court, after adequate appreciation of oral and documentary evidence on record, has held that the suit schedule ‘A’ and ‘B’ properties, except item No.E of suit schedule ‘B’ are the joint family ancestral properties of the plaintiff and defendants.

¶258

With regard to item No.E of suit schedule ‘B’ property i.e., Plot No.19 in Sy.No.50/A-1C sold by defendant Nos.1, 3, 6 and 8 in favour of defendant No.10 vide sale deed dated 02.03.2005, the Trial Court has recorded a finding that the same was sold for legal necessity. While recording the said finding, the Trial Court has merely noticed, as is forthcoming from paragraph 33 of the judgment of the Trial Court, that although the plaintiff had contended that the property was not sold for legal necessity, nothing has been elicited by the plaintiff in the cross-examination of DW1 to prove that the said property was not sold for legal or family necessity. Further, the Trial Court, noticing that the sale deed was executed in the year 2005 and since the plaintiff has

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not challenged the execution of the sale deed within a period of three years, held that the said property cannot be considered as joint family property. The said finding of the Trial Court with regard to item No.E of suit schedule ‘B’ property is ex-facie erroneous and liable to be interfered with. Since the defendants having taken a contention that the said property was sold for legal necessity, they were required to adduce oral and documentary evidence with regard to the said legal/family necessity, which admittedly has not been done. The approach of the Trial Court in shifting the burden on the plaintiff to demonstrate that the sale was not for family necessity without the defendants adducing any oral or documentary evidence demonstrating family or legal necessity is erroneous and liable to be interfered with. Hence, the said finding of the Trial Court holding that the item No.E of suit schedule ‘B’ property i.e., Plot No.19 in R.S.No.50/A+1C not being available for partition is erroneous and liable to be interfered with.

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The finding of the Trial Court with regard to suit schedule ‘C’ property i.e., a tractor trailer bearing No.MEZ-83,

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admittedly having been alienated, the said finding of the Trial Court is just and proper and not interfered with.

¶266

In view of the aforementioned discussion, the question No.(i) & (ii) framed for consideration are answered in favour of the plaintiff and against the defendants holding that the plaintiff has proved that the suit schedule ‘A’ and ‘B’ properties are the ancestral joint family properties of the plaintiff and defendant Nos.1, 3, 6 and 8 and the said parties are entitled to their legitimate share in the suit schedule properties.

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Reg. Question No.(iii):

¶268

It is forthcoming that defendant No.3 i.e., Dyavaraddi died on 25.04.2013 and his wife Smt.Shakalavva, who is arrayed as defendant No.4 was also deleted vide order dated 03.08.2015. Hence, the share of Dyavaraddi would also enure and devolve upon the plaintiff and defendant Nos.1, 6 and 8. Accordingly the plaintiff and defendant Nos.1, 6 and 8 are entitled to 1/4^th share each in the plaint schedule ‘A’ and ‘B’ properties.

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With regard to defendant No.10, who is the purchaser of item No.E of suit schedule ‘B’ property, it is open to the said defendant to workout his rights in the final decree proceedings. The question No.(iii) framed for consideration is accordingly answered as above.

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Hence, the following:

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ORDER

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(i) RFA No.100272/2019 is dismissed.

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(ii) RFA No.100191/2021 is allowed.

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(iii) The impugned judgment and decree insofar it relates to dismissal of the suit in respect of schedule-B(e) bearing R.S.No.50/A/1C Plot No.19, is hereby set aside.

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(iv) The suit of the plaintiff in respect of ‘A’ schedule and ‘B’ schedule properties is decreed. The suit in respect of ‘C’ schedule property is dismissed.

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(v) The original defendant No.3-Dyavaraddi having expired during the pendency of the

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HC-KAR

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suit and he having been deleted in the suit, on 25.04.2013, his share would devolve upon the plaintiff and defendants No.1, 6, 8. The plaintiff and defendants No.1, 6 and 8 are hereby declared to have 1/4^th share each in the plaint ‘A’ and ‘B’ properties.

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(vi) Registry to draw the decree accordingly.

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(vii) The rights of the purchaser i.e., defendant No.10, who is stated to have purchased item No.(e) of ‘B’ schedule property shall be worked out by way of an equitable partition during the final decree proceedings.

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(viii) We place on record the gratitude and appreciation for the valuable assistance rendered by learned counsel Sri.Sourabh A Sondur, who assisted as an Amicus Curiae on our request.

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