Tarawwa W/O. Pandappa Galagali Vs Kasturewwa W/O. Timmanna Patil

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 16^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. 100452 OF 2022 (PAR/POS)

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BETWEEN:

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TARAWWA W/O. PANDAPPA GALAGALI AGE: 78 YEARS, OCC: AGRICULTURE, R/O. MALALI, TQ: MUDHOL, DIST: BAGALKOT-587313.

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2. KALLAPPA

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Digitally signed by SAMREEN AYUB DESHNUR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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S/O. PANDAPPA GALAGALI AGE: 48 YEARS, OCC: AGRICULTURE, R/O. MALALI, TQ: MUDHOL, DIST: BAGALKOT-587313.

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LAXMIBAI W/O. KALLAPPA GALAGALI AGE: 48 YEARS, OCC: AGRICULTURE, R/O. MALALI, TQ: MUDHOL, DIST: BAGALKOT-587313.

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…APPELLANTS

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(BY SRI. S.S.PATIL AND SRI. MAHANTESH R.PATIL, ADVOCATES)

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AND:

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HC-KAR

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KASTUREWWA W/O. TIMMANNA PATIL AGE: 58 YEARS, OCC: HOUSEHOLD WORK, AND AGRICULTURE, R/O. VENKATAPUR, TQ: GOKAK, DIST: BELAGAVI-590001.

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NEELAWWA W/O. LAXMAN CHANNAL, AGE: 63 YEARS, OCC: HOUSEHOLD WORK, AND AGRICULTURE, R/O. KALLIGUDDA, TQ: GOKAK, DIST: BELAGAVI.

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M.D. NIRANI SUGARS LTD., MUDHOL, TQ: MUDHOL, DIST: BAGALKOT-587313.

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M.D. ICPL SUGARS LTD., UTTUR, TQ: MUDHOL, DIST: BAGALKOT-587313.

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…RESPONDENTS

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(BY SRI. B.V.SOMAPUR, ADVOCATE FOR R1; SRI. GANGADHAR S.HOSAKERI, ADVOCATE FOR R2; NOTICE TO R3 AND R4 ARE SERVED)

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THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED 19.03.2021 PASSED IN O.S.NO.200/2018 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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

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HC-KAR

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

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THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)

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This appeal by defendant Nos.1 to 3 in O.S.No.200 of 2018 is directed against the impugned judgment and decree dated 19.03.2021 passed by the Additional Senior Civil Judge and JMFC, Mudhol¹ , whereby, the said suit filed by respondent No.1 and 2/plaintiffs against the appellants/defendant Nos.1 to 3 and respondent Nos.4 and 5/defendants No.4 and 5 for partition and separate possession of their alleged share in the suit schedule immovable properties was decreed by the Trial Court in favour of the plaintiffs against the defendants.

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For the purpose of convenience, the parties are referred to by their respective ranks before the Trial Court.

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Briefly stated, the facts giving rise to the present appeal are that plaintiffs are the daughters of late Pandappa Galagali and Tarawwa (defendant No.1) and defendant No.2 is

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1 Hereinafter referred to as “the Trial Court for short.

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the brother of the plaintiffs and only son of Pandappa Galagali and Tarawwa. It is an undisputed fact that the original propositus Pandappa Galagali died intestate on 12.04.2018, leaving behind his wife Tarawwa (defendant No.1) and Kallappa (defendant No.2) as well as two daughters (plaintiff Nos.1 and 2) to succeed to his estate including the suit schedule properties. It is also not in dispute that the suit schedule properties originally belonged to Pandappa Galagali and upon his demise, defendant Nos.1 and 2 and the plaintiffs succeeded to his estate and became entitled to their legitimate share each in the suit schedule properties. Defendant Nos.4 and 5 are said to be the purchasers of sugarcane produce arising out of the cultivation from the suit schedule properties.

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The plaintiffs instituted the aforesaid suit inter alia contending that pursuant to the demise of the aforesaid Pandappa Galagali, defendant No.2 attempted to get the khata mutated into his individual name and tried to deprive the plaintiffs of their legitimate share in the suit schedule properties. As a result of which, the plaintiffs were constrained to file the

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instant suit seeking partition, separate possession and other reliefs against the defendants.

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Defendant Nos.1 and 2 filed their common written statement inter alia disputing and denying the various allegations and claims made by the plaintiffs. It was contended that the marriages of both the plaintiffs, were performed by defendant Nos.1 and 2 and late Pandappa Galagali. It was also contended that the financial support and help was continuously given to both the plaintiffs for their day to day as well as medical expenses and a family arrangement came into existence about 12 years prior to the demise of Pandappa Galagali, in which, the plaintiffs received money, gold ornaments, etc. and relinquished their share in the suit schedule properties in favour of defendant Nos.1 and 2. It was also contended that defendant No.3 is the wife of defendant No.2.

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At paragraph No.11A of the written statement, defendant Nos.1 and 2 took up a specific contention that the suit for partial partition was not maintainable, since a house property situated in Malali Village, Mudhol Taluk, originally belonging to

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Pandappa Galagali was not included among the suit schedule

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properties and as such, suit was liable to be dismissed.

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The Trial Court framed the following issues.

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“:: ISSUES ::

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1. Whether plaintiffs proves that the suit schedule properties are the joint family properties to them and defendant Nos.1 and 2?

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2. Whether plaintiffs are entitled for the relief sought for?

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3. What Order or Decree?

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ADDL. ISSUE DATED 26.11.2020

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1. Whether defendant Nos.1 to 3 prove that suit is bad for non-inclusion of all the joint family properties in common hotch-pot?

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Plaintiff No.2 examined herself as PW1 and one

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witness as PW2 and documentary evidence at Exs.P1 to P9 were

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marked on their behalf. Defendant Nos.1 and 2 examined themselves as DW1 and DW2 and two witnesses as DW3 and DW4, while defendant No.3 examined herself as DW5 and

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documentary evidence at Exs.D1 to D.14 were marked on behalf of the defendants.

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After hearing the parties, the Trial Court answered Issue Nos.1 and 2 in the affirmative, in favour of the plaintiffs by coming to the conclusion that the suit schedule properties originally belonged to the propositus Pandappa Galagali and upon his demise, the plaintiffs and defendants Nos.1 and 2 succeeded to the same and consequently became entitled to 1/4^th share each in the suit schedule properties. Insofar as Additional Issue No.1 relating to the suit for partial partition not being maintainable for non-inclusion of all the joint family properties, the Trial Court answered the said issue against defendant No.1 to 3 and held that the suit was maintainable and consequently proceeded to decree the suit in favour of the plaintiffs against defendants. Aggrieved by the impugned judgment and decree, defendant Nos.1 to 3 are before this Court by way of the present appeal.

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Heard learned counsel for the appellants and learned

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counsel for respondents and perused the material on record.

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Learned counsel for the appellants/defendant Nos.1

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to 3 would reiterate the various contentions urged in the memorandum of appeal and refer to the material on record, in order to point out that, the Trial Court committed an error in not accepting the plea of earlier family arrangement put forth by the appellants/defendant Nos.1 to 3, by virtue of which, the plaintiffs would not have any share over the suit schedule properties and the findings recorded by the Trial Court deserve to be set aside. Secondly learned counsel would invite our attention to paragraph No.11A of the written statement filed by defendant Nos.1 and 2 in order to contend that despite the specific plea urged by appellants/defendant No.1 to 3 that the property situated at Malali Village, Mudhol Taluk standing in the name of the original propositus Pandappa Galagali was not included in the instant suit for partial partition which was not maintainable, the Trial Court erred in answering the said issue against the appellants/defendant Nos.1 to 3 and consequently the impugned judgment and decree passed by the Trial Court deserves to be set aside and the suit of the plaintiffs was liable to be dismissed.

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Per contra, learned counsel for respondent Nos.1 and 2/plaintiffs would support the impugned judgment and decree and submit that the Trial Court was fully justified in granting the legitimate share of the plaintiffs/respondent Nos.1 and 2 in the suit schedule properties. It was also submitted that without prejudice to the aforesaid submissions, respondent Nos.1 and 2/plaintiffs have already instituted final decree proceedings in FDP No.21/2021 pursuant to the impugned preliminary decree, which is pending on the file of the Senior Civil Judge and JMFC, Mudhol, Bagalkot district and that respondent Nos.1 and 2/plaintiffs would include the properties referred to in paragraph No.11A of the written statement of defendant Nos.1 and 2 in the final decree proceedings as additional properties and that the Final Decree Court may be directed to adjudicate upon the rights of the parties in relation to the said properties which have been omitted from the suit schedule properties during the course of final decree proceedings and draw up a final decree in relation to not only the suit schedule properties but also the omitted/left out properties in accordance with law. It is therefore submitted that an appropriate orders may be passed in this regard by this Court in the present appeal.

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We have given our anxious consideration to the rival submissions and perused the material on record including the records of the Trial Court.

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The following points arise for consideration in the present appeal:

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1. Whether the Trial Court was justified in coming to the conclusion that suit schedule properties were joint family properties in which the plaintiffs were entitled to their legitimate share?

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Whether the Trial Court was justified in answering Additional Issue Nos.1 against the appellants and in favour of respondent Nos.1 and 2, thereby holding that the suit as filed by the respondents/plaintiffs was maintainable in law?

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Regarding Point No.1 :

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A perusal of the material on record including the impugned judgment and decree will indicate that except putting forth a vague plea as regards an alleged family arrangement said to have taken place between respondent Nos.1 and 2/plaintiffs and defendant Nos.1 and 2 during the lifetime of their father

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Pandappa Galagali, 12 years prior to his demise in the year 2018, the appellants/defendant Nos.1 to 3 have not placed any legal or acceptable evidence, either oral or documentary, to establish that respondent Nos.1 and 2/plaintiffs had relinquished their right over the suit schedule properties under the alleged family arrangement by receiving money, cash, gold ornaments etc. The Trial Court also took into account that though the Mutation Register Extract at Ex.P.9 refers to an alleged partition deed, respondent Nos.1 and 2/plaintiffs were not parties to the said alleged partition referred to in the partition deed. The Trial Court also noticed the oral evidence of DWs 1 to 4 to admit that the alleged family arrangement was not reduced into writing and no registered partition deed was executed in the family of the plaintiffs and defendants. Under these circumstances, the Trial Court answered Issue No.1 in favour of respondent Nos.1 and 2/plaintiffs by coming to the conclusion that since the plea of earlier partition/family arrangement had not been established by the appellants/defendant Nos.1 to 3, the suit schedule properties which undisputedly belonged to Pandappa Galagali would devolve upon respondent Nos.1 and 2/plaintiffs and appellants/defendant Nos.1 and 2 after his lifetime and as such respondent Nos.1 and

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2/plaintiffs would be entitled to their legitimate share in the suit schedule properties by holding as under:

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17. “From the oral and documentary evidence adduced by both the parties it is clear that till today no partition was effected in between plaintiffs and defendant Nos.1 to 3 by metes and bounds. It is also clear that the suit schedule properties were inherited by the plaintiffs and defendant Nos.1 and 2 from their propositus Pandappa Galagali and he acquired the suit schedule properties from his ancestors. Hence it is clear that after the death of Pandappa Galagali the plaintiffs and defendant Nos.1 to 3 were succeeded the suit schedule properties as the legal heirs of deceased Pandappa Galagali. It is the specific case of the plaintiffs that till today no partition was effected in their family by metes and bounds. Themselves and defendant Nos.1 to 3 are in joint possession and enjoyment of the suit schedule properties. From the oral and documentary evidence adduced by both parties it is clear that 'B' schedule properties are standing in the name of defendant Nos.2 and 3. It is clear that the name of defendant No.2 was mutated to the suit schedule properties as per M.R. No.343/200506. The plaintiffs produced the said mutation register extract as per Ex.P.9 wherein it is stated that based on the partition deed the said mutation was certified. The defendants contended that during the

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lifetime of Pandappa Galagali he made family arrangement in the best interest of the joint family. In the family arrangement the plaintiff No.1 was given cash of Rs.5,00,000/, plaintiff No.2 was given 06 tolas gold and cash of Rs.50,000/, defendant No.1 was given 05 tolas gold and suit schedule properties were given to defendant No.2 and propositus Pandappa Galagali retained one house property and cash of Rs.5,00,000/. In support of this contention the defendants relied on the oral evidence of DW1 to 4. But the DW1 to 4 clearly deposed that the alleged family arrangement was not reduced into writing and there is no any registered partition deed was executed in the family of plaintiffs and defendants. Hence it is clear that the partition was not effected in the family of plaintiffs and defendant Nos.1 to 3 under mode known to law. Without any partition deed or family arrangement the contention of the defendants that during the lifetime of propositus Pandappa Galagali he was made family arrangement is not acceptable one. Further the defendants are not putforth any cogent and acceptable material evidence to show that the plaintiffs were received cash and gold towards their share in the suit schedule properties and further nothing is mentioned in Ex.P.9 to show that the plaintiffs are receiving cash and gold towards their share in the suit schedule properties. Further in the crossexamination of DW.3 who is alleged to be present at the time of making family

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arrangement he clearly deposed that at the time of family arrangement the plaintiffs were not present they were residing at their respective husband's houses. Hence it is clear that without the knowledge and consent of the plaintiffs the family arrangement was effected. The plaintiffs being daughters of propositus Pandappa Galagali they being members of the joint family they are also having interest in the suit schedule properties but without giving any share to the plaintiffs the alleged family arrangement was effected but there is no any documentary evidence to show that for the family arrangement the plaintiffs are consented and received cash and gold towards their share in the suit schedule properties. As the suit properties were inherited by the plaintiffs and defendant Nos.1 to 3 from deceased Pandappa Galagali and the suit properties are their joint family properties the plaintiffs are having legitimate share in the suit schedule properties but the defendants without there being any acceptable material evidence contending that family arrangement was made during the lifetime of Pandappa Galagali at that time the plaintiffs were received their share in the form of cash and gold is not acceptable one. Hence by looking to the entire oral and documentary evidence I am of the considered view that the suit schedule properties are the joint family properties to the plaintiffs and defendant

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Nos.1 and 2. Hence, I answered the issue No.1 in the Affirmative.”

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Upon re-appreciation, re-consideration and re-

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evaluation of the entire material on record, we are of the considered opinion that there is no illegality or infirmity in the impugned judgment and decree nor can the same said to be capricious or perverse or against the weight of evidence or contrary to law warranting interference by this Court in the present appeal. Accordingly Point No.1 is answered against the appellants/defendant Nos.1 to 3 in favour of the respondent Nos.1 and 2/plaintiffs.

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Regarding Point No.2 :

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It is true that the appellants/defendant Nos.1 and 2 have taken a specific contention that in addition to the suit schedule properties, there is one more property situated at Malali village, Mudhol Taluk, which belonged to and stood in the name of Pandappa Galagali, which has been omitted from being included among the suit schedule properties and the suit for partial partition filed by respondent Nos.1 and 2/plaintiffs without including the said property, was not maintainable and the entire

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suit was liable to be dismissed. While dealing with the said contention, the Trial Court came to the conclusion that there was no requirement of respondent Nos.1 and 2/plaintiffs including the said property also, since the suit for partial partition was maintainable and a party cannot be compelled to seek his legitimate share in all the properties and as such the said contentions are rejected by the Trial Court. In this context, learned counsel for the appellants/defendant Nos.1 to 3 places reliance upon the judgment of the Division Bench of this Court in the case of smt. Bhagyashree and others Vs. Balappa and others² , in order to contend that this Court has confirmed the findings of the Trial court, that the suit for partial partition was not maintainable.

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In our considered opinion, the said contention urged

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on behalf of the appellants/defendant Nos.1 and 2 cannot be accepted. In this context, it is pertinent to refer to Section 99 of the Code of Civil Procedure, 1908³ which reads as under:

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“99. No decree to be reversed or modified for error or irregularity not affecting merits or

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2 RFA No.100081/2017 dated 13.06.2023

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3 Hereinafter referred to as “the CPC” for short

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jurisdiction.- No decree shall be reversed or “substantially varied, nor shall any case be remanded, in appeal on account of any mis joinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.”

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A plain reading of the aforesaid provision will clearly indicate that no judgment, decree or order shall be varied, set aside or modified by the Appellate Court, unless, the same affects the jurisdiction of the Court or the merits of the case. In fact, the said provision specifically contemplates that no decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any misjoinder or non-joinder of parties or cause of action of any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.

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In the case of Mahant Ramdhan Puri and others V. Chaudhury Lachmi Narain and others⁴ , it was held as under:

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4 AIR 1937 Privy Council 42

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“The mere fact of misjoinder is not by itself sufficient to entitle the defendant to have the proceedings set aside or action dismissed. Where the merits of the case have been satisfactorily disposed of by the trial Court in spite of the complication of the proceedings no objection as to misjoinder can be given effect to in the appeal”

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21. In the case of Choma Naika Vs. Rama Naika⁵ , the

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learned Single Judge of this Court held at paragraph Nos.8 to 10 as under:

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8. The short question for consideration herein is whether the view taken by the learned Civil Judge, that the default on the part of the Munsiff, in not disposing of the issue relating to the status of the defendant as a ‘debtor’ as a preliminary issue was so vulnerable as to vitiate the Judgment and decree recorded by the Munsiff on the merits of the suit. In this context I may say that there is, however, little gainsay in denying that the Karnataka Debt Relief Act, lays down that wherever an issue arises regards the status of the defendant as a ‘debtor’ that issue has to be treated as a preliminary issue and disposed off as such by the Court. The Act also places the burden on the plaintiff to prove that the defendant is not a Debtor. This undoubtedly is the mandate of the statute. There is again no denial or getting away from the fact that the Munsiff appeared to have completely over-looked the requirement

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5 ILR 1988 KAR 1902

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of the law in not disposing of the issue relating to the defendant's status as a preliminary issue instead he had disposed it off along with all the other issues.

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9. The point therefore is whether in the facts and circumstances of the case the Civil Judge, was right in taking the view that the failure by the Munsiff in not adhering the legislative mandate had led to the total vitiation of the Judgment and decree of the learned Munsiff in its entirety.

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10. In challenging the correctness of the aforesaid view adopted by the learned Civil Judge, Mr. Ram Bhat, who appears in support of the appeal invites my attention to Section 99 C.P.C. and has also in this connection relied on a few decisions that have a bearing on this point. Section 99 C.P.C. reads:

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“99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.-

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No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder (or non-joinder) of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.”

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It may be seen from the aforesaid provision that a decree is immune from attack before a Court of appeal unless by reason of an error, irregularity or defect from which the said decree is said to suffer had resulted in

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affecting the merits of the case or of the jurisdiction of the Court. In other words if by the omission committed by the trial Court the finding on the merits of the dispute between the parties is not affected or the jurisdiction of the Court itself remains untramelled, a Court of Appeal should not interfere with such a decree merely on the off-chance of the decree suffering from some error, defect, or irregularity. The object of the legislature made evident from Section 99 C.P.C. clearly is to save the Judgment and decree of Courts from attacks based on mere technicalities not affecting either jurisdiction of the Courts or merits of the case. Bearing in mind imprimatur of the law as enjoined by Section 99 of the C.P.C. it would be apposite to consider the point raised herein.

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In the case of Virendra Singh V. Vimal Kumar⁶ ,

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the Apex Court at paragraph No.7 held as under:

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7. Mr Hardy, who has taken great pains to present the case of the appellant has, in the first instance, attempted to lead us to the realm of hypertechnicalities. He has tried to pick up faults in the verification on the election petition and the affidavit accompanying the petition and has urged that the petition ought to have been dismissed by the High Court in limine under Section 86 of the Act in view of the fact that the verification and the affidavit did not contain sufficient particulars of the corrupt practices attributed to the

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6 AIR 1976 SC 2169

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appellant and did not at all give particulars of printing of the offending leaflet. He has further urged that the petition was also liable to be dismissed as the copy of the petition meant to be served on the appellant was not accompanied by a copy of Annexure ‘A’ i.e. Ex. P- 10. We find ourselves unable to accede to these contentions. The allegations of corrupt practice and particulars thereof as given in para 13 of the election petition reproduced above are sufficiently clear and precise. The affidavit accompanying the petition in support of the allegations of corrupt practice and the particulars thereof also conform to the form prescribed for the purpose. The appellant had an easy access to the court record and could have no difficulty in gathering the necessary material to meet the case set up by the respondent by a reference to the leaflet (Ex P- 10) which formed an annexure to the election petition. It is also now well settled that failure to give particulars of printing of the pamphlet is not detrimental and cannot lead to the dismissal of the petition. (See Prabhu Narayan v. A.K. Srivastava [(1975) 3 SCC 788] .) That apart, the petition could also not have been dismissed in view of Section 99 of the Code of Civil Procedure which clearly says that a defect which does not affect the merits of the case or the jurisdiction of the court cannot invalidate the decision. The preliminary contentions of Mr Hardy cannot, therefore, be sustained.

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In the instant case, as fairly submitted by the learned counsel for respondent Nos.1 and 2/plaintiffs, the properties which respondent Nos.1 and 2/plaintiffs omitted to include among the properties belonging to and standing in the name of Pandappa Galagali situated at Malali Village, Mudhol Taluk, which was omitted and not included among the suit schedule properties, was also a joint family properties and all the parties including the appellants/defendant Nos.1 and 2 and defendant Nos.1 and 2/plaintiffs would be entitled to their legitimate share in the said property. Learned counsel would also point out that since the final decree proceedings in FDP.No.21/2021 are only continuation of the preliminary decree proceedings in O.S.No.200 of 2018, all rival contentions between respondent Nos.1 and 2/plaintiffs and appellants/defendant Nos.1 to 3 as regards the property at Malali Village, Mudhol Taluk, which was omitted from the suit schedule properties can be worked out and adjudicated during the final decree proceedings.

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The aforesaid facts and circumstances and submissions made on behalf of respondent Nos.1 and 2/plaintiffs will clearly indicate that mere non-inclusion of the properties

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referred to at Paragraph 11A of the written statement of defendant Nos.1 and 2 is merely an error, defect or irregularity in the proceedings in the suit, which clearly does not affect the merits of the case, nor the jurisdiction of the Court, especially when all issues relating to that property which was omitted / excluded from the preliminary decree proceedings in the suit would have to be decided during the course of final decree proceedings and consequently, by virtue of the provisions contained in Section 99 of the CPC, the question of reversing or substantially varying or remanding the matter once again to the Trial Court would not arise in the facts and circumstances of the instant case, especially when it cannot be said that any prejudice, loss or hardship would be caused to the appellants in the event the rights of the parties in relation to the property belonging to and standing in the name of Pandappa Galagali the propositus is to be directed to be left open to be adjudicated upon during the final decree proceedings.

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It is needless to state that these directions are to be issued by this Court, in the facts of the present case, instead of remanding the matter once again for fresh disposal, would be

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adequate to safeguard the rights of the parties which are to be kept open to be adjudicated upon before the Final Decree Court during final decree proceedings vis-à-vis the said property.

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Insofar as the judgment of the Division Bench of this Court in the case of Smt.Bhagyashree² relied upon the learned counsel for the appellants is concerned, apart from the fact that the provisions contained in Section 99 of the CPC have not been noticed or considered by this Court in the aforesaid judgment, having regard to the peculiar/special facts and circumstances obtaining in the instant case, in particular the submission made on behalf of the plaintiffs which have prompted us to leave open all questions in relation to the property at Malali Village, Mudhol Taluk referred to in paragraph No.11A of the written statement of the defendants to be decided during final decree proceedings, the said judgment in Smt.Bhagyashree² would cannot be made applicable to the facts of the instant case.

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It is trite law that, a suit for partition is deemed to be pending from the date it is originally instituted for the purpose of preliminary decree till the last item of joint family property is divided/partitioned and possession is handed over to the

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respective parties. It is also well settled that the final decree proceedings essentially are nothing but continuation of a suit for partition for declaration of their legitimate share of the parties and merely for the purpose of convenience, the request of the parties to draw up a final decree pursuant to a preliminary decree are designated by Courts as final decree proceedings, it cannot be said that both the preliminary decree proceedings in O.S.No.200 of 2018 and the final decree proceedings in FDP.No.21/2021 are two completely different proceedings, while on the other hand, the final decree proceedings are merely continuation of the preliminary decree proceedings.

¶156

Under these circumstances, in the absence of any prejudice or hardship or loss caused to the appellants/defendants, rights are kept intact and open to be decided during the course of final decree proceedings, vis-à-vis the property referred to in paragraph No.11A of the written statement, we are of the considered opinion that the impugned judgment and decree passed by the Trial Court including the findings recorded on Additional Issue No.1, do not warrant interference by this Court in the present appeal. It is also

¶157

26 - NC: 2025:KHC-D:12134-DB RFA No. 100452 of 2022

¶158

HC-KAR

¶159

relevant to state that Order XLI Rule 33 of the CPC empowers this Court to pass such orders as required for the purpose of advancing substantial justice; the provisions contained in Order XLI Rule 33 of the CPC, reads as under:

¶160

33. Power of Court of Appeal.- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees: Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to made such order.

¶161

As stated supra in the instant case, both the appellants and respondents are ad idem as regards the fact that one additional house property belonging to the parties had been

¶162

27 -

¶163

NC: 2025:KHC-D:12134-DB RFA No. 100452 of 2022

¶164

HC-KAR

¶165

omitted and not included among the suit schedule properties and in the absence of any demonstrable prejudice being caused to the appellants if all issues/questions pertaining to the said omitted property are to be directed to be decided during the course of final decree proceedings, we deem it just and appropriate to exercise our powers/jurisdiction vested in us under Order XLI Rule 33 of the CPC and in order to do substantial justice and to avoid multiplicity of proceedings, save time and give a finality to the dispute between the parties, it would be appropriate to direct the Final Decree Court to decide all questions relating to this property also during final decree proceedings and on this ground also, the contention urged on behalf of the appellants cannot be accepted.

¶166

Accordingly, Point No.2 is also answered against the appellants/defendants.

¶167

In the result, we pass the following:

¶168

ORDER

¶169

The appeal is hereby d ismissed.

¶170

28 -

¶171

NC: 2025:KHC-D:12134-DB RFA No. 100452 of 2022

¶172

HC-KAR

¶173

The impugned judgment and decree dated 19.03.2021 passed in O.S.No.200/2018 by the Trial Court is hereby confirmed.

¶174

The plaintiffs are directed to include the house property situated at Malali village, Mudhol taluk as referred to at paragraph No.11A of the written statement filed by defendant Nos.1 and 2 as additional property in the final decree proceedings.

¶175

All rival contentions between the parties in relation to the additional house property referred to in paragraph No.11A of the written statement of defendant Nos.1 and 2 are kept open to be decided during the final decree proceedings in FDP.No.21/2021, which shall be concluded by the Final Decree Court in accordance with law.

¶176

Modified decree to be drawn accordingly.

¶177

Sd/(S.R. KRISHNA KUMAR) JUDGE

¶178

Sd/(C.M. POONACHA) JUDGE

¶179

EM Ct:vh List No.: 1 Sl No.: 39

Tarawwa W/O. Pandappa Galagali v. Kasturewwa W/O. Timmanna Patil

Case brief

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Tarawwa W/O. Pandappa Galagali v. Kasturewwa W/O. Timmanna Patil

Case brief

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