Ramesh S/O Gurupadappa @ Vs Smt.Girewwa W/O Shekappa Bagewadi

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1 - NC: 2025:KHC-D:11601-DB RFA No. 100470 of 2019

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IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 9^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. 100470 OF 2019 (PAR/POS)

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BETWEEN:

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RAMESH S/O. GURUPADAPPA @ GURAPPA NAVI, AGE: 49 YEARS, OCC: AGRICULTURE, R/O: UTTUR VILLAGE, TQ: MUDHOL, DIST: BAGALKOT-587313.

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SMT. NEELAWWA W/O. RAMESH NAVI AGE: 44 YEARS, OCC: HOUSEHOLD WORK, R/O : GUDUS, TQ: HUKKERI, DIST: BELAGAVI-591309.

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…APPELLANTS

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

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(BY SRI. GIRISH A.YADAWAD, ADVOCATE)

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AND:

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SMT. GIREWWA W/O. SHEKAPPA BAGEWADI AGE: 54 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK, R/O: OM MOTORS, NEAR RANNA STADIUM, MUDHOL, TQ: MUDHOL, DIST: BAGALKOT-587313.

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SMT. VIDYA W/O. BHIMASI NAVI AGE: 34 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK,

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R/O: UTTUR VILLAGE, TQ: MUDHOL, DIST: BAGALKOT-587313.

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…RESPONDENTS

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(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)

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THIS RFA IS FILED UNDER SECTION 96(1) R/W ORDER XLI RULE 1 OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED 12.06.2019 PASSED IN O.S.NO.95/2015 ON THE FILE OF THE PRINCIPAL 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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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 the defendants in O.S. 95/2015 is directed against the impugned judgment and decree dated 12.06.2019 passed by the Principal Senior Civil Judge and JMFC, Mudhol¹ , whereby, the said suit filed by the respondents - plaintiffs against the appellants - defendants for partition and separate possession of their alleged share in the suit schedule immovable

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

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properties was decreed by the Trial Court in favour of the respondents against the appellants.

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The appellants are the brother and sister of the respondent Nos.1 and 2, all of them being the children of Late Gurupadappa @ Gurappa Basappa Navi and Late Neelawwa. The relationship between the parties is not in dispute.

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For the purpose of convenience, the parties are

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referred to as per their respective ranks before the Trial Court.

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The plaintiffs instituted the aforesaid suit against the

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defendants for partition and separate possession of their alleged share in the suit schedule properties comprising of the following 4 items of immovable properties.

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“Description of the suit properties

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A . Landed Properties

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i. R.S.No.214/1 measuring 08Acre-05 Guntas assessed at Rs. 22=35Ps of Jaliber village in Mudhol Taluka.

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ii. R.S.No.25/3 measuring 03Acre-08Guntas assessed at Rs. 08-35 Ps of Uttur village in Mudhol Taluka.

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iii. R.S.No.6/7 measuring 02Acres-00GuntasAssessed at Rs. 01=38Ps of Ranjanagi village B. House property.

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iv. House bearing Uttur Panchayat No.293 standing in the name of Gurupadappa @ Gurappa Basappa Navi situated within the limits of Uttur village.

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(Herein after referred to as suit properties)

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According to the plaintiffs, all the suit schedule properties are Hindu undivided / joint family properties, in which they are entitled to 1/4^th share each and since the defendants did not comply with the request / demand of the plaintiffs to effect partition/division and to put the plaintiffs in separate possession of their share in the suit schedule properties, the plaintiffs instituted the aforesaid suit seeking partition and other reliefs.

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The defendants filed their written statement contesting the suit, inter alia contending that apart from the fact that defendant No.1 had raised huge loan towards marriage expenses of plaintiffs and defendant No.2, there were other liabilities in excess of ₹10,00,000/- with private persons within the knowledge of the plaintiffs and defendant No.2. It was also contended that defendant No.1 had invested huge amounts of money to the tune of ₹ 25,00,000/- for developing the suit schedule properties, which was being discharged by defendant

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No.1 alone and the plaintiffs and defendant No.2 had not contributed any money towards either their marriage expenses or towards discharge of the loan incurred on the suit schedule properties or for their development and as such the plaintiffs and defendant No.2 would not be entitled to claim any share in the suit schedule properties and the suit was liable to be dismissed.

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Based on the aforesaid pleadings, the Trial Court

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framed the following issues:

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1. Whether plaintiff prove themselves and defendants are joint family members and suit schedule properties are in joint possession and enjoyment?

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2. Whether the defendants proves that the deceased Gurupadappa @ Gurappa has borrowed Rs.10,00,000/- loan more for performing than the marriage of his daughters and the defendant No.1 has invested a sum of Rs.25,00,000/for developing the lands?

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

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4. What order or decree?”

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Plaintiff No.2 examined herself as PW1 and Exs.P.1 to

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P4 were marked, while defendant No.1 examined himself as DW1

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and two witnesses as DW2 and DW3 and documentary evidence at Exs.D1 to D10 were marked on their behalf. Defendant No.2

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examined herself as DW4, but did not produce any documentary evidence.

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After hearing the parties, the Trial Court proceeded to answer Issue Nos.1 and 3 in the affirmative by coming to the conclusion that the suit schedule properties were joint family properties, in joint possession and enjoyment of all the parties and that the plaintiffs and defendants were entitled to 1/4^th share each in the suit schedule properties. However while dealing with Issue No.2, the Trial Court came to the conclusion that defendant No.1 had not established/substantiated his contention that his father had borrowed loan of more than ₹10,00,000/- for performing the marriage of the plaintiffs and defendant No.2 and that defendant No.1 had not proved that he had invested sum of ₹25,00,000/- for developing the suit schedule properties.

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Under these circumstances, the Trial Court proceeded to pass the impugned judgment and decree, decreeing the suit of the plaintiffs against the defendants, who are before this Court by way of the present appeal.

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In addition to reiterating the various contentions urged in the memorandum of appeal and referring to the material on record, learned counsel for the appellants submits that, notwithstanding the fact that both Gurupadappa @ Gurappa and his wife Late Neelawwa, had died intestate, having regard to the fact that defendant No.1 had invested more than ₹25,00,000/- for development of the lands and the loan in excess of ₹10,00,000/- taken by their father for the marriage expenses of the plaintiffs and defendant No.2 had been discharged by defendant No.1 alone, the said circumstance would have the effect of taking away the alleged share of the plaintiffs in the suit schedule properties. The learned counsel submitted that the Trial Court had not considered or appreciated the material on record produced by defendant No.1 in relation to the expenditure and the money spent towards discharge of loans and submitted that the finding on Issue No.2 may be set aside and all rival contentions as regards loan being taken on the properties, discharge of the loan by defendant No.1 and expenditure incurred by defendant No.1 for development of the lands may be kept open to be decided during final decree proceedings by confirming the preliminary decree to the extent

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declared that all the parties were entitled to 1/4^th share each in the suit scheduled properties. It was therefore submitted that the appropriate orders may be passed by this Court in the present appeal.

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Per contra learned counsel for the plaintiffs while supporting the impugned judgment and decree submitted that the impugned judgment and decree declaring that all the parties were entitled to 1/4^th share each towards suit schedule properties may be upheld/confirmed in the present appeal and the finding on Issue No.2 regarding loan, expenditure towards development of the lands, discharge of the loans etc. may be set aside and the said issue/question may be left open to be decided in the final decree proceedings in FDP.No.41/2019, which is pending adjudication and the present appeal may be disposed of accordingly.

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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 passing the preliminary decree, declaring that the plaintiffs and defendants were entitled to 1/4^th share each in the suit schedule properties?

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2. Whether the findings recorded by the Trial Court on Issue No.2 rejecting the claim of the appellants as regard loan taken by his father, discharge of the loan by defendant No.1 and expenditure incurred for development of the suit schedule properties warrant interference in the present appeal?

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Regarding Point No.1 :-

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The relationship between the parties being not in dispute, the question that came up for consideration before the Trial Court while dealing with Issue No.1 was whether the plaintiffs and defendants were members of a joint family and whether the suit schedule properties were joint family properties in which all of them were entitled to 1/4^th share each. In this context, the Trial Court noticed the pleadings and evidence of the parties in order to come to the conclusion that none of them had set up any plea of earlier partition nor was there any contention regarding severance of status urged by the parties, thereby leading to the sole conclusion that all the plaintiffs and defendants were members of a Hindu undivided family. So also, the Trial Court considered and appreciated the material record in order to come to the correct conclusion that the properties originally standing in the name of Gurupadappa @ Gurappa, the father had devolved upon all the parties, being his children and

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class-I heirs under Section 8 of the Hindu Succession Act, 1956, and consequently each one of them would be entitled to 1/4^th share each in the suit schedule properties. The Trial Court also took into account that defendant No.1 except stating that he had discharged the loan more than ₹10,00,000/- taken by his father for the marriage expenses of his sisters and had spent more than ₹25,00,000/- towards the development of the suit schedule properties, defendant No.1 had neither pleaded nor proved as to how either the suit schedule properties were his absolute properties or as to how the plaintiffs and defendant No.2 were not entitle to their legitimate share in the suit schedule properties upon the demise of their father. While arriving at the said conclusion, the Trial was held as under.

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“11. The plaintiffs have filed this suit by seeking 1/4th share each in the suit properties on the ground that the suit schedule properties are their joint family properties. The defendant No.1 and 2 in their written statement have amditted the relationship with the plaintiffs and they have also admitted that the suit schedule properties belongs to their father Gurupadappa @ Gurappa. However they have raised the defence that their father Gurupadappa has raised loan more than Rs.10,00,000/- for performing the marriage of his daughters. They have also contended that all the daughters have received sufficient money and gold at the time of their marriage towards their share.

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They have further contended that the defendant No.1 has invested a sum of Rs.25,00,000/- for developing all the lands and thereby they have requested the court to dismiss the suit with cost.

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12. In the present case, it is an admitted fact that the plaintiffs and the defendants are the only legal heirs of deceased Gurupadappa @ Gurappa. It is also an admitted fact that the parents of plaintiffs namely Gurupadappa and his wife died by leaving behind the plaintiffs and the defendants as their legal heirs. The plaintiffs have claimed share in the suit properties on the ground that they have inherited the same after the death of their father. On the other hand, the defendants have contended that the plaintiffs and defendant No.2 have already received huge money and gold towards their share at the time of their marriage and thereby they have resisted the claim of the plaintiffs. In addition to this, the defendant No.1 has contended that he has spent more than Rs.25,00,000/- for developing the suit properties. Accordingly they have requested the court to direct the plaintiffs to give their share in the amount spent by the defendant No.1.

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13. In support of their case, the plaintiff No.2 herself was examined as PW-1, where she has reiterated the averments of the plaint. In her cross examination, she has denied the suggestion that her father has already given sufficient gold and amount towards their share. She has denied the suggestion that, her father was liable to pay loan amount of Rs.10,00,000/- at the time of his death. She has admitted the suggestion that her father died on 09.02.2015. She has denied the suggestion that the defendant No.1 has spent a sum of Rs.10,00,000/- and Rs.25,00,000/- for performing the marriage of his sisters and also for

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developing the suit properties. The defendants even after cross examining PW-1 have not elicited anything from her mouth in order to prove that their father has borrowed loan more than Rs.10,00,000/- to meet out the marriage expenses of all the daughters. They have also failed to elicit anything from the mouth of PW-1 to prove that the defendant No.1 has spent a sum of Rs.25,00,000/- for developing all the landed properties.

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14. On the other hand, the defendant No.1 himself was examined as DW-1 who got marked Ex.D.1 to Ex.D.10 documents. He has examined two witnesses in support of his defence as DW-2 and 3 where they have supported the case of the defendant No.1.

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15. DW-1 Ramesh Navi in his cross examination has stated that he himself and his father have spent money for performing the marriage of his sisters. He has also stated that he himself has performed the marriage of plaintiff No.2 by spending a sum of Rs.15,00,000/-. At this stage it is relevant to note that the defendant No.1 in his written statement has not pleaded that he himself and his father have performed the marriage of his sisters. DW-1 has further stated that he has produced documents before the court in order to prove that they are liable to pay loan amount of Rs.10,00,000/-. He has borrowed a loan of Rs.25,00,000/- from some persons for the purpose of developing the suit properties. He has denied the suggestion that he has produced false documents in order to avoid allotment of shares to his sisters.

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16. DW-2 Santram Hanamant Metri, and DW-3 Mallappa Shivalingappa Navi, in their chief affidavits have stated that, the deceased Gurupadappa has borrowed loan of Rs.10,00,000/-

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for performing the marriage of his daughters and they have also stated that, the defendant No.1 has borrowed loan of Rs.25,00,000/- for developing the landed properties.

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17. DW-2 Santram Hanamant Metri in his cross examination has stated that he do not know the extent of loan borrowed by Gurupadappa for performing the marriage of his daughters. He do not know the extent of golden ornaments given to the daughters at the time of their marriage. He has denied the suggestion he is deposing falsely to help the defendant No.1. DW-3 Mallappa Shivalingappa Navi, in his crossexamination has stated that Gurupadappa gave two tolas gold to his daughters at the time of their marriage. The defendant No.1 has borrowed loan from one Shasappa of Uttur village, but the defendant No.1 and his father have not executed any loan documents. He has denied the suggestion that he is deposing falsely to help the defendants.

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18. DW-4 Smt Neelawwa in her cross examination has stated that her father has not informed them that he is giving money at the time of their marriage towards their share. It is her evidence that the defendant No.1 gave 04 tolas gold each to his sisters at the time of their marriage. It is her evidence that her father has not borrowed any loan amount during his lifetime. The learned counsel for plaintiffs has suggested DW-4 that she has filed a false affidavit in order to avoid allotment of shares to the plaintiffs for which DW-4 has stated that all of them requires share in the properties.

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19. Ex.P.1 to Ex.P.3 are the RTC, extracts relating to suit item No.1 to 3 landed properties which discloses that these properties are jointly standing in the names of plaintiffs and defendants. The

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entries made in column No.10 of Ex.P.1 to P.3 documents further discloses that the suit properties were mutated in the names of plaintiffs and defendants on Pavati Varas basis. Ex.P.4 is the Panchayath Uthar document relating to plaint B-schedule house property standing in the name of Gurappa Basappa Navi who is the father of the plaintiffs and defendants. The plaintiffs by producing Ex.P.1 to P.4 documents have succeeded to prove that the suit schedule properties belongs to their father Gurappa Basappa Navi who died intestate. Since plaintiffs and defendants are the class-I heirs of deceased Gurappa Bassappa Navi, then they are entitled to claim equal share in the suit properties as per Sec.8 of Hindu Succession Act. If the deceased Gurappa Basappa Navi died by leaving behind any testamentary document then the plaintiffs cannot claim the share in the suit properties. Since the father of the plaintiffs and defendants died intestate then they are entitled to claim equal share in the suit properties.

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20. The defendant No.1 in support of his defence has got marked Ex.D.1 to D.10 documents. On perusal of Ex.D.1 to D.7 documents, it is reveled that one Shri. Venkateshwar borewalls, has issued Ex.D.1 and 2 documents in the name of defendant No.1. However these documents does not bears the survey number of the properties in respect of which the defendant No.1 has dugged the borewall Ex.D.3 is the estimate issued in favour of defendant No.1. Similarly Ex.D.4 and D.5 are the estimates issued by Vinayak Electricals, Mudhol in the name of defendant No.1. Ex.D.6 is the estimate issued by Omkar Hard wares in favour of defendant No.1. Ex.D.7 is a document issued for Rs.1,13,300/- in the name of defendant No.1, but it does not discloses the name and address of the

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shop which has issued the said document. Ex.D.1 to D.7 documents are not helpful for the defendant No.1 to prove that he has spent a sum of Rs.25,00,000/for developing the landed properties as contended by him. In addition to this, he has not examined the author of these documents, in order to prove that he has paid the amount shown in Ex.D.1 to D.7 documents for purchasing the materials. Accordingly, Ex.D.1 to D.7 documents are not helpful for defendant No.1 to prove his defence.

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21. Ex.D.8 and 9 are the documents styled as “Kaigada Patra” executed by defendant No.1 in favour of one Kalabasappa Sangappa Lakkam on 20.11.2001 and 06.02.2003. These two documents discloses that the defendant No.1 has borrowed a loan of Rs.20,000/and another sum of Rs.40,000/- from the said Kalabasappa in the year 2001 and 2003. However these documents does not discloses that the defendant No.1 has borrowed the said loan amount for the purpose of developing the suit schedule landed properties. When Ex.D.8 and Ex.D.9 are shown as Kaigada Patra then the defendant No.1 is liable to pay interest for the loan amount, but these documents does not discloses the rate of interest to be paid. It is not in dispute that the father of defendant No.1 died on 09.02.2015 as suggested to PW-1. Therefore, it is clear that the father of defendant No.1 was alive in the year- 2001-2003 and if it true that the defendant No.1 has borrowed loan amount for developing the landed properties, then his father would have executed the loan documents in favour of Kalabasappa Sangappa. This itself clearly discloses the defendant No.1 has borrowed the loan amount for some other purpose, but not for developing the suit schedule landed properties. The defendant No.1 has not examined any witnesses to prove the alleged loan transaction

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held through Ex.D.8 and D.9 documents. Accordingly, Ex.D.8 and D.9 documents are not helpful for defendant No.1 to prove that he has spent a sum of Rs.25,00,000/- for developing the landed properties.

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22. Ex.D.10 is the yield test certificate issued in favour of Gurappa Basappa Navi in respect of the property bearing Sy.No.6/4B. However Ex.D.10 document does not discloses that it relates to suit schedule landed properties. Ex.D.10 document clearly discloses that the father of the plaintiffs namely Gurappa Basappa Navi has dugged the borewell in his property. The defendant No.1 except raising the defence that his father has borrowed more than Rs.10,00,000/- for performing the marriage of his daughters has not placed any acceptable materials before the court. In addition to this, the defendant No.1 has not produced any evidence before the court to prove that he has spent a sum of Rs.25,00,000/- for developing the landed properties. Similarly the defendant No.2 except her oral evidence has not produced any documents to show that her father has borrowed huge loan amount and also that the defendant No.1 has invested huge money for developing the landed properties. Accordingly the defendants have failed to prove their specific defence raised in their written statement.

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23. The plaintiffs by means of oral and documentary evidence have succeeded to prove that themselves and defendants have inherited the suit schedule properties after the death of their father Gurappa who died intestate. On the other hand the defendant No.1 and 2 have failed to prove the alleged loan transaction of their father and they have also failed to prove the alleged investment made by defendant No.1 for developing the landed properties. Hence, I

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answered issue No.1 in the Affirmative and issue No.2 in the Negative.”

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As can be seen from the aforesaid findings recorded

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by the Trial Court in relation to Issue No.1, the Trial Court has correctly and properly considered and appreciated the material on record and have arrived at the correct conclusion that the plaintiffs and defendants were entitled to 1/4^th share each in all the properties and has accordingly answered Issue No.1 in favour of the plaintiff by declaring that the plaintiff and defendants are entitled to 1/4^th share each by passing a preliminary decree in this regard.

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Upon re-appreciation, re-consideration and reevaluation of the entire material on record, we are of the considered opinion that the impugned judgment and decree/preliminary decree passed by the Trial Court declaring that the plaintiffs and defendants were entitled to 1/4^th share each in all the suit schedule properties cannot be said to be perverse or capricious nor can the same said to suffer from any illegality or infirmity nor having occasioned failure of justice, warranting interference by this Court in the present appeal. Accordingly, Point No.1 is answered against the appellants by

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upholding/confirming the preliminary decree passed by the Trial Court declaring that all the parties are entitled to 1/4^th share each of the suit schedule properties.

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Regarding Point No.2 :-

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After having answered Issue No.1 in favour of plaintiffs, the Trial Court proceeded to answer Issue No.2 against defendant No.1 by rejecting his claim that there was a loan in excess of ₹10,00,000/- taken by his father towards marriage expenses of plaintiffs and defendant No.2, which was subsequently discharged by defendant No.1, who had also failed to establish that he had spent more than ₹25,00,000/- for the purpose of development of the suit schedule properties. In this regard, the learned counsel for the appellants submits that, if the finding on the said issue is set aside and liberty is reserved in favour of the parties to adduce oral and documentary evidence in relation to this aspect of the matter during the final decree proceedings, the appellants - defendants, would produce additional material to establish their claim and appropriate orders may be passed in the present appeal.

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Per contra, learned counsel for the respondents - plaintiffs submits that they would also produce material/evidence in relation to Issue No.2 and the said finding be set aside and left/kept open to be decided during final decree proceedings.

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As stated supra, Issue No.2 relates to the specific claim of defendant No.1 regarding expenses incurred by him, loan taken by his father and loan repaid by defendant No.1, which have been answered against defendant No.1 by the Trial court. However, having regard to the fact that the finding on the said issue will not have any effect/bearing on the preliminary decree passed by the Trial Court and upheld by this Court while dealing with Point No.1 to the effect that all the parties would be entitled 1/4^th share each in all the items of suit schedule properties, coupled to the submissions made by both sides, that the finding on Issue No.2 be set aside and the parties be relegated to get the said issue decided/adjudicated upon during the course of final decree proceedings which are pending in FDP No.41/2019, we deem it just and appropriate to set aside the finding on Issue No.2 and direct that all questions in relation thereto be decided by the Final Decree Court during the course

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of final decree proceedings in FDP No.41/2019, pending before the Trial Court. We say so because of the well settled principle of law that a preliminary decree merely declares the rights of the parties/shares of the parties and all other questions as regards development, expenditure, loans, etc., in relation to any of the suit schedule properties would necessarily have to be adjudicated upon during final decree proceedings and not at the stage of passing the preliminary decree as has been done in the instant case.

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Under these circumstances, Point No.2 is answered by setting aside the finding of the Trial Court on Issue No.2 and relegating the parties to get the said issue and all related questions to be adjudicated/decided upon during final decree proceedings, which are currently pending in FDP No.41/2019, before the Trial Court. Point No.2 is accordingly answered.

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In the result, the following:

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ORDER

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1. The appeal is hereby disposed of.

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The impugned judgment and decree dated 12.06.2019 passed in O.S.No.95/2015 by the Trial Court, insofar as it declares that all the parties are entitled to 1/4^th share each in all the suit schedule properties is hereby confirmed/upheld in the present appeal;

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The finding recorded by the Trial Court on Issue No.2 relating to the loans, development expenses etc. is hereby set aside;

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Both the appellants and respondents are relegated to get all issues/questions pertaining to Issue No.2 framed by the Trial Court to be adjudicated / decided by the Final Decree Court during the course of final decree proceedings in FDP No.41/2019 and all rival contentions in this regard are kept/left open to be decided in FDP No.41/2019 and no opinion is expressed on the merits/demerits of the rival contentions.

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Sd/(S.R. KRISHNA KUMAR) JUDGE

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Sd/(C.M. POONACHA)

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EM Ct:vh List No.: 1 Sl No.: 22

Ramesh S/O Gurupadappa @ v. Smt.Girewwa W/O Shekappa Bagewadi

Case brief

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Ramesh S/O Gurupadappa @ v. Smt.Girewwa W/O Shekappa Bagewadi

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