Dismissed¶97

Sri Thrilochanamurthy C S v. Sri C S Kashipathi

Karnataka HC6 Feb 2025RFA/699/2020

Case brief

AI extract

What is this about?

Brothers'/coparceners' partition suit over ancestral HUF agricultural lands (Tumkur district); proof of unregistered Panchayathi parikath/partition memo Ex.D23 dated 10.6.1998 requiring attesting-witness evidence; failure to examine attesting witnesses and absence of metes-and-bounds partition; rejection of self-acquired-property claim for suit item No.6 (defendant did not testify, no proof of funds); RFA under S.96 C.P.C.; appeal dismissed, 1/3-share decree of 29.11.2019 confirmed; Karnataka High Court double bench, February 2025.

What did the court decide?

Joint ownership proved: the suit schedule properties were held to be the ancestral and joint family properties of the plaintiff and the defendants, and appeal point No.1 was answered in the affirmative. ¶93

Sri Thrilochanamurthy C S Vs Sri C S Kashipathi — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the plaintiff proves that himself and the defendants are the joint owners of the suit schedule properties. +2 more

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Court's answer

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Ratio / Principle

Partition under Ex.D23 Panchayathi parikath dated 10.6.1998 not proved (point No.2 answered in the negative): the defendants examined none of the attesting witnesses (Ningappa, Umamaheshwari, Kumaraswamy, Siddaramaiah) or any of their relatives; DW1 admitted only Siddaramaiah was alive; no partition by metes and bounds appeared from the pleadings and cross-examination; the RTC extracts mentioned the alleged partition but showed no property allotted to the plaintiff; and defendant No.2 produced no parikath or registered partition deed showing any allotment to him.

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Key takeaways

Suit schedule item No.6 was not proved to be the self-acquired property of defendant No.2: he did not enter the witness box and no material was placed on record to show he was financially able to purchase it from his vendor.ratio¶90
The trial Court's conclusions were upheld and no interference was called for; the defendants' appeal was dismissed and the judgment and decree dated 29.11.2019 in O.S. No.25 of 2018 was confirmed.ratio¶98

Detailed headnote1 paragraphs

High Court of Karnataka at Bengaluru (RFA No. 699 of 2020 (PAR); decided 06.02.2025; oral judgment per Justice Venkatesh Naik T, Bench with Justice K. Somashekar) dismissed the defendants-appellants' Section 96 C.P.C. Regular First Appeal and confirmed the judgment and decree dated 29.11.2019 of the Senior Civil Judge and J.M.F.C., Chikkanayakanahalli in O.S. No.25 of 2018, whereby plaintiff C.S. Kashipathi was partly decreed a 1/3 share in the suit schedule properties by metes and bounds, with mesne profits denied. The defendants had contended that an oral partition reduced to writing as Panchayathi parikath dated 10.6.1998 (Ex.D23), signed by the brothers and their father Shivaramaiah, divided the family lands (mutations MR No.10/2001-02 and MR No.5/2003-04), and that suit item No.6 was defendant No.2's self-acquisition under registered sale deed dated 7.6.2004 (Ex.D20). The High Court found the defendants failed to prove Ex.D23: none of its attesting witnesses (Ningappa, Umamaheshwari, Kumaraswamy, Siddaramaiah) or their relatives were examined, only Siddaramaiah being alive; no metes-and-bounds partition appeared; RTC extracts recorded the alleged partition yet nothing was allotted to the plaintiff; the lifetime-maintenance lands (Survey Nos.70/4 and 70/5) stood in the father's name until the 2018 suit; and defendant No.2 produced no parikath or registered deed showing an allotment to him. Item No.6 was likewise not proved self-acquired, defendant No.2 having never entered the witness box and no material showing his financial capacity to purchase. Appeal point No.1 was answered in the affirmative and No.2 in the negative; no interference was called for; no order as to costs.

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NC: 2025:KHC:5491-DB RFA No. 699 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF FEBRUARY, 2025

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR AND

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THE HON'BLE MR JUSTICE VENKATESH NAIK T REGULAR FIRST APPEAL NO.699 OF 2020 (PAR)

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BETWEEN:

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SRI THRILOCHANAMURTHY C. S. S/O. SHIVARAMAIAH AGED ABOUT 52 YEARS.

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SRI SHASHIDHARAMURTHY C. S. S/O. SHIVARAMAIAH AGED ABOUT 45 YEARS.

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BOTH ARE RESIDENTS OF CHUNGANAHALLI VILLAGE KASABA HOBLI CHIKKANAYAKANAHALLI TALUK TUMKURU DISTRICT - 572 101.

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…APPELLANTS

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(BY SMT. SHRUTHI S. P., ADVOCATE, FOR SRI VINAYA KEERTHY M.)

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Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: HIGH COURT OF KARNATAKA

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AND:

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SRI C. S. KASHIPATHI S/O. SHIVARAMAIAH AGED ABOUT 51 YEARS CHUNGANAHALLI VILLAGE KASABA HOBLI CHIKKANAYAKANAHALLI TALUK TUMKURU DISTRICT - 572 101.

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…RESPONDENT

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(BY SRI SHIVAKUMAR SWAMY G. S., ADVOCATE, FOR SRI S. V. PRAKASH)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE C.P.C. AGAINST THE JUDGMENT AND DECREE DATED 29.11.2019 PASSED IN O.S. NO.25 OF 2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., CHIKKANAYAKANAHALLI, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION THIS REGULAR FIRST APPEAL IS COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR and HON'BLE MR JUSTICE VENKATESH NAIK T

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE VENKATESH NAIK T.)

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This appeal is filed by the defendants challenging the

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judgment and decree dated 29.11.2019 passed by the learned Senior Civil Judge and J.M.F.C., at Chikkanayakanahalli, (for short, 'trial Court') in Original Suit No.25 of 2018.

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For the purpose of convenience, the parties are

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referred to as per their rankings before the trial Court. The appellants are defendant Nos.1 and 2 and the respondent is the plaintiff.

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The brief facts of the case are that the plaintiff and defendants are the brothers, constituted members of Hindu undivided joint family and they are coparceners. The suit schedule properties are the ancestral and joint family properties and they are in constructive joint possession and enjoyment of the same. The suit schedule properties are fertile lands and fetching huge income and there was no necessity to borrow loan for the joint family benefit and development of the suit schedule properties. Defendant No.1 is the eldest and is managing the family

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as Karta . Suit schedule item No.6 was purchased in the name of defendant No.2 which has been thrown into common hotchpotch and all the joint family members are permitted to enjoy the same. This being the fact, the defendants colluding with each other and without the knowledge of the plaintiff and consent, managed to get the revenue documents in their names and taking advantage of the same and to defeat rights of share to the plaintiff, the defendants are trying to alienate the suit schedule properties. They also denied to allot 1/3^rd share

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to the plaintiff in the suit schedule properties. Thus, he filed the suit for partition.

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After institution of the suit, defendant Nos.1 and 2 appeared through their counsel and filed their common written statement, in which, they admitted their relationship with the plaintiff, but denied the entire averments made in the plaint. The defendants have taken the contention that they are the sons of one Shivaramaiah and during his lifetime, they were enjoying the joint family properties as coparceners. During the lifetime of his father Shivaramaiah, they entered into oral partition and same was reduced into writing as Panchayathi parikath/partition deed dated 10.6.1998 (Ex.D23) and accordingly, they divided the family properties under the said deed and they were enjoying their respective shares. The plaintiff, defendants and their father were signatories to the said document. As per the partition deed, the lands situated at Chunganahalli, Shettikere Hobli, Chikkanayakanahalli Taluk, i.e. Survey No.138/5 measuring 0-21 guntas,

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Survey No.24/1F measuring 0-11 guntas, Survey No.24/1A measuring 0-03 guntas, Survey No.24/2B measuring 0-04 guntas, Survey No.68/2 measuring 0-20 guntas, Survey No.68/3 measuring 0-21 guntas, Survey No.84/5 measuring 0-36 guntas, Survey No.138/2 measuring 0-11 guntas and Survey No.138/3 measuring 0-11 guntas were fallen to the share of defendant No.1. Accordingly, as per the partition deed, the lands bearing Survey No.162 measuring to an extent of 5 acres situated at Chunganahalli Village and Survey No.13/P-P2 measuring 1 acre and 27 guntas situated at Bytaranganahalli Village, Kasaba Hobli, Chikkanayakanahalli Taluk, were fallen to the share of defendant No.2. The said partition has been acted upon, mutation was effected as per MR No.10/2001-02 and MR No.5/2003-04 in their respective names. After the partition, the defendants have developed their respective properties which were allotted to their share by spending huge amount. Defendant No.2 purchased suit schedule item No.6 on his own strength and hence, it is his self-

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acquired property. The plaintiff has also taken his share in the said partition and enjoying the same and after the death of their father, Shivaramaiah, on 15.9.2008, the properties which were given to the lifetime maintenance of Shivaramaiah and his wife has been taken by the plaintiff. Therefore, there is no existence of joint family and joint family properties, and status of joint family has been severed in the year 1998 itself. Therefore, the suit of the plaintiff is not maintainable. Hence, they prayed for dismissal of the suit.

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On the basis of the pleadings, the trial Court framed the following issues:

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1) Whether the plaintiff proves that he and defendant are members of Hindu undivided joint family and the suit properties are the ancestral and joint family properties and he is in joint possession and enjoyment of the same along with the defendants?

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2) Whether the defendants prove the alleged partition deed dated 10.6.1998?

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3) Whether defendant No.2 proves that the suit item No.6 is his self-acquired property?

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4) Whether the plaintiff is entitled for the reliefs as sought for?

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5) What order or decree?"

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To prove the case of the plaintiff, the plaintiff got examined himself as PW1 and relied upon in all thirty-one documents as per Exs.P1 to P31. On behalf of the defendants, defendant No.1 was examined as DW1 and got marked documents as per Exs.D1 to D26.

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On the basis of oral and documentary evidence on record, the trial Court answered issue No.1 in the affirmative, issue Nos.2 and 3 in the negative, issue No.4 partly in the affirmative and consequently, partly decreed the suit of the plaintiff and granted 1/3^rd share to the petitioner in all the suit properties by metes and bounds. However, the relief in so far as mesne profits was denied.

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Aggrieved by the judgment and decree passed by

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the trial Court, the defendants have filed the present appeal.

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Smt. Shruthi S.P., learned counsel appearing for Sri Vinaya Keerthy M., learned counsel for the appellants/defendants, has contended that the judgment and decree passed by the trial Court is illegal, improper and opposed to the evidence on record and the same is not acceptable either in law or facts. The trial Court failed to consider the case of the defendants that the suit schedule properties are not joint family properties. Further, there was oral partition between the plaintiff and the defendants on 10.6.1998 and thus, the parties to the suit were acted upon, mutation in respect of suit schedule properties was changed. Defendant No.2 purchased the suit schedule item No.6 out of his own earnings and thus, it is his self-acquired property, but the trial Court has not considered the said aspect. Further, though the defendants have produced Ex.D23-Panchayathi parikath

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dated 10.6.1998 which establishes that the partition has been taken place in the joint family of the plaintiff and the defendants and the same has been reduced into writing on 10.6.1998, but the trial Court has committed error in coming to the conclusion that Ex.D23-Panchayathi parikath dated 10.6.1998 has not been proved. Further, the trial Court has committed error in coming to the conclusion that defendant No.2 has not proved his case by entering into the witness box to establish that he has acquired suit schedule item No.6 out of his own earnings and the suit schedule properties are joint family properties. The suit schedule item No.6 of the suit schedule property is the self-acquired property of defendant No.2, but without considering the material evidence available on record, the trial Court partly decreed the suit of the plaintiff. Hence, she prayed to allow the appeal.

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Sri Shivakumar Swamy G.S., learned counsel appearing for Sri S.V. Prakash, learned counsel for the

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respondent/plaintiff, has contended that the plaintiff and the defendants are brothers and they constitute the members of Hindu undivided joint family. The joint family possess in all nineteen properties. Defendant No.1 is the eldest and is managing the family as Karta . Suit schedule item No.6 was purchased in the name of defendant No.2 which has been thrown into common hotchpotch and thus, all the members of joint family are permitted to enjoy the same. However, the defendants colluding with each other and without the knowledge of the plaintiff and consent, managed to get the revenue documents in their names and taking advantage of the same and to defeat rights of share of the plaintiff, the defendants are trying to alienate the suit schedule properties. Therefore, the plaintiff proved that he has right in the suit schedule properties. Accordingly, the trial Court has granted 1/3^rd equal shares in the suit schedule properties by metes and bounds. Thus, he prayed for dismissal of the appeal.

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After hearing the learned counsel for the parties and perusing the entire material on record, the points that

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arise for our consideration are:

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1) Whether the plaintiff proves that himself and the defendants are the joint owners of the suit schedule properties?

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2) Whether the defendants prove that there was partition between the plaintiff and the defendants under Ex.D23- Panchayathi parikath /partition deed dated 10.6.1998 and suit schedule item No.6 is selfacquired property of defendant No.2?

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3) What order or decree?

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Point Nos.1 and 2: As point Nos. 1 and 2 are interlinked with each other, we have taken these points for discussion at one stretch.

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It is the case of the plaintiff that himself and the defendants are brothers. Suit schedule properties are joint family properties of the plaintiff and the defendants and there was no partition in the joint family. Further,

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defendant No.1 is Karta of the joint family and suit schedule item No.6 was purchased in the name of defendant No.2 and hence, the same has been thrown into common hotchpotch of the joint family properties. On the other hand, according to the defendants, on 10.6.1998, there was partition between the plaintiffs and the defendants and the joint family properties were partitioned among themselves. After the partition, the defendants have developed their respective properties and defendant No.2 purchased suit schedule item No.6 out of his own earnings and thus, it is his self-acquired property.

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In support of the case, the plaintiff was examined

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as PW1 and got marked in all thirty-one documents as per Exs.P1 to 31. In his examination-in-chief, PW1 reiterated his plaint averments and in support of his contention, he produced Exs.P1 to P16-RTC extracts in respect of suit schedule properties, Exs.P17 to P22-Tax assessments Register extracts, Ex.P23-Genealogy tree, Ex.P24-certified copy of the Sale Deed dated 24.12.1981, Ex.P25-certified

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copy of the decree in O.S. No.100/1997, Exs.P26 to P28RTC extracts, Ex.P29-Mutation Register extract, Ex.P30certified copy of the plaint in O.S. No. 100/97 and Ex.P31Mutation Register extract. PW1 was cross-examined by the learned counsel for the defendants, but nothing worthwhile was elicited to discredit his oral testimony.

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In order to rebut the claim of the plaintiff, defendant No.1 was examined as DW1 and in his chief-examination, he has reiterated the contents of his written statement. In support of his oral evidence, he relied upon Exs.D1 to D12-RTC extracts, Exs.D13 is the Mutation Register extract in MR No.10/2001-02 which shows that as per Panchayathi parikath, defendant No.1 made application to enter his name in respect of properties which were allotted to his share and accordingly, mutation was accepted in his name. Ex.D14 is the Mutation Register extract which shows that in the partition, land bearing Survey No.13/P-P2 measuring 1 acres and 27 guntas has been allotted to the share of

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defendant No.2 and accordingly, his name got mutated. Ex.D15 is the Mutation Register extract in respect of suit schedule item No.6 and as per the registered sale deed, the name of defendant No.2 got mutated. Ex.P16 is the RTC extract of suit land bearing Survey No.162 measuring 5 acre which shows that under the partition, the said property has been allotted to the share of defendant No.2 and his name got mutated. Exs.D17 and 19 are the Tax Assessment Register Extracts. Ex.D20 is the registered Sale Deed dated 7.6.2004, which clearly establishes that defendant No.2 purchased suit item No.6. Exs.D21 is the registered sale deed dated 21.1.1989 which shows that the property bearing Survey No.59 was purchased by C.S. Mruthyunjayappa from the plaintiff. Ex.D22 is the demand notice issued by the Bank to defendant No.1 to clear the outstanding loan of Rs.1,08,000/-. Ex.D23 is the Panchayathi parikath dated 10.6.1998 which shows that the partition was held in between C.S. Shivaramaiah and his sons, who are the plaintiff and defendant Nos.1 and 2.

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From perusal of Ex.D23, it also recited that

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towards lifetime maintenance the land in Survey Nos.70/4 and 70/5 were given to Shivaramaiah and his wife and after their death, all the cremation ceremonies shall be performed by the plaintiff and the said properties shall be given to the plaintiff. As per the case of the defendants, some of the family properties have been allotted to the share of the plaintiff and the properties given to the lifetime maintenance of their parents and after their death, it was given to the plaintiff. However, defendant No.2 has not produced panchayathi parikath in order to show that the properties given to their parents as lifetime maintenance have been allotted to his share. Further, the defendants have not taken any steps to direct the plaintiff to produce the panchayathi parikath which was made in his name. Thus, as per Ex.D23, it is only in respect of defendant No.1, who has acquired the said properties under the alleged parikath. No doubt, the plaintiff, defendant Nos.1 and 2 are the signatories to Ex.D23 along

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with their father, Shivaramaiah. However, in order to establish the said Panchayathi parikath, the defendants have not examined any of the attesting witnesses and none of their relatives were examined.

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From perusal of the oral and documentary

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evidence and the pleadings of the parties, it appears that, the suit properties have been acquired by Shivaramaiah from his ancestors and some of the properties have been purchased by him and now, they are standing in the name of Shivaramaiah, defendant Nos.1 and 2 and none of the suit properties, except suit item No.19 are standing in the name of the plaintiff. Under Ex.D23, it was recited that towards lifetime maintenance the land in Survey Nos.70/4 and 70/5 be given to Shivaramaiah and his wife and after their death, all the cremation ceremonies shall be

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performed by the plaintiff and the said properties shall be given to the plaintiff. However, till institution of the suit in the year 2018, those properties were standing in the name of Shivaramaiah, the father of the plaintiff and defendant

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Nos.1 and 2. In order to show that some of the properties have been allotted to the share of defendant No.2, he has not produced any such panchayathi parikath or any registered partition deed, as produced by defendant No.1. Further, defendant No.2 has not entered the witness box to prove his case that suit schedule item No.6 has been purchased on his own strength and it is his self-acquired property.

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From the pleading and cross-examination of DW1, it appears that no partition has been taken place by metes and bounds. In all the RTC extracts, except suit schedule item No.6, there is mention about the alleged partition, however, no such properties have been allotted to the share of the plaintiff. Neither defendant No.1 nor defendant No.2 has examined the attesting witnesses to Ex.D23-Panchayathi parikath, such as Ningappa, Umamaheshwari, Kumaraswamy and Siddaramaiah to prove the content of Ex.D23. DW1 has categorically admitted that except Siddaramaiah, none of the attesting

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witnesses is alive. DW1 also admits that the family members of said attesting witnesses are still alive, however in order to establish the execution of Ex.D23, the defendants have not examined any of the relatives of attesting witnesses. DW1 further admits that except income derived from agriculture, they are not having any other sources of income and in order to establish that suit schedule item No.6 is the self-acquired property of defendant No.2, he has not come forward to adduce his evidence and the defendants have not placed any material

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to show that defendant No.2 was financially able to purchase suit schedule item No.6 from his vendor. Therefore, the defendants failed to prove that suit schedule item No.6 is the self-acquired properties of defendant No.2.

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The trial Court, based on pleadings, oral and documentary evidence placed on record and admission of DW1, clearly opined that the suit schedule properties are the ancestral and joint family properties of the plaintiff and

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the defendants. The trial Court rightly came to the conclusion that the defendants have failed to establish Ex.D23-panchayathi parikath dated 10.6.1998 and also failed to establish that suit schedule item No.6 is selfacquired property of defendant No.2. Hence, no interference is called for. Thus, we answer point No.1 in the affirmative and point No.2 in the negative.

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Point No.3 - In view of the above discussion, we

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proceed to pass the following:

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O R D E R

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i. The appeal filed by the defendants is dismissed .

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ii. The judgment and decree dated 29.11.2019 passed by the learned Senior Civil Judge and J.M.F.C., at Chikkanayakanahalli, in Original Suit No.25 of 2018, is hereby confirmed.

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