Smt. Mangala W/O Madhusudhan Katke Aliyas Radhika M Katke D/O Gurapa Basappa Ghodke Vs Sri Ashok S/O Girimallappakoti Aliyas Koti Ashok S/O Girimallappa

Digitally signed by MALLIKARJUN RUDRAYYA MALLIKARJUNRUDRAYYAKALMATH KALMATHLocation: HIGHCOURT OFKARNATAKA DHARWAD BENCH Date: 2025.06.02 17:30:51 +0530

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AND:

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1 . SMT. MANGALA MADHUSUDHAN KATKE

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@ RADHIKA M. KATKE, D/O GURAPPA BASAPPA GHODKE, W/O MADHUSUDAN KATKE, AGE: 48 YEARS, R/O: GOPALA, SHIVAMOGGA – 577 201

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2 . SADHANA SHIVAKUMAR ALAGAVADI, D/O GURAPPA BASAPPA GHODKE, W/O SHIVAKUMAR ALAGAVADI, AGE: 55 YEARS, R/O SHOP NO.9,

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HC-KAR

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TIMES CENTER, MAROLI CHURCH, R.C. MARG, CHEMBUR, MUMBAI - 590 011.

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3 . MOHANA GURAPPA CHODKE, S/O GURAPPA BASAPPA GODKE, AGE: 67 YEARS, R/O: BUILDING NO, 19-A, ROOM NO.105, 1^ST FLOOR, MILAN CO-OPERATIVE HOUSING SOCIETY, R.C. MALL, VASHI NAKA, CHEMBUR, MUMBAI - 590 011.

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4 . DAYANANDA GURAPPA GHODKE, S/O GURAPPA BASAPPA GODKE, AGE: 57 YEARS, R/O: GINJAPPA HALL, 2^ND CROSS, AYODYA NAGAR, NEAR JOSHI HOSPITAL, OLD-HUBBALLI – 580 038.

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5 . RAJENDRA GURAPPA GHODKE, S/O GURAPPA BASAPPA GODKE, AGE: 51 YEARS, R/O: NO. 82, SRI. RENUKA NIVASA, 2^ND MAIN, OPP. K.G. HALLI POLICE STATION, BENGALURU – 560 089.

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6 . LAXMI DEVARAJ GHODKE W/O LATE DEVARAJ GHODKE, AGE: 58 YEARS, OCC:BASAVESHWARA NAGARA, NEAR WATER TANK, BALLARI ROD, POST: KAMPLI, TQ: HOSAPETE, DIST: BALLARI – 583 101.

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7 . SMT. SHREE W/O RAMESH F. NARAYANKAR

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HC-KAR

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D/O LATE DEVARAJA GURAPPA GHODKE, AGE: 32 YEARS, C/O. VINAYAK XEROX, KUDLIGERI CIRCLE, RAMANAGARA, H.B. HALLI – 583 101.

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8 . KALAVATHI W/O SHIVARAJ RAO D/O LATE DEVARAJ GURAPPA GHODKE, AGE: 29 YEARS, R/O: KONE ELEVATOR INDIA PVT. LTD., ROOM E-A, 207, ULLAS KANNADA KARWAR, MALLAPUR TOWNSHIP (NPCK KAIGA) – 581 343.

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9 . KUSHBU W/O SACHIN J. D/O LATE DEVARAJ GURAPPA GHODKE, AGE: 28 YEARS, R/O: 2/1076, DHORGALLI, THILAK NAGAR, ECHALAKARANGI – 590 800.

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10 . PRAVEEN S/O LATE DEVARAJ GHODKE AGE: MAJOR, R/O: BASAVESHWARA NAGAR, NEAR WATER TANK, BALLARI ROAD, POST: KAMPLI, TQ: HOSAPETE, DIST: BALLARI – 583 101.

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11 . KAMALA MUDUKAR GAIKWAD W/O MUDUKAR GAIKWAD, D/O GURAPPA BASAPPA GHODKE, AGE: 70 YEARS, R/O: DOOR NO.5/121,

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HC-KAR

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NIVARA HOUSING SOCIETY, SION, CHUNA BHATTI, MUMBAI – 590 011.

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12 . KASTHURI BAI RAM SHINDE D/O GURAPPA BASAPPA GHODKE, AGE: 65 YEARS, R/O: SECTOR-2, CO-OPERATIVE HOUSING SOCIETY, PRAM SAGAR, SHANTHI NAGAR, ROOM NO.402, BUILDING NO.C-39, MIRA ROAD EAST, DIST: THANE, MUMBAI – 590 011.

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13 . KUMUDINI PRAKASH SONAVANE W/O PRAKASH SONAVANE, D/O GURAPPA BASAPPA GHODKE, AGE: 61 YEARS, R/O: NO.34, 18^TH CROSS, SAGAYA PURUM, HALL LROAD, FRASER TOWN, BENGALURU – 560 089.

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14 . SMT.VANDANA DHRUVA KUMAR JADAV W/O DHRUVA KUMAR JADAV D/O GURAPPA BASAPPA GHODKE, AGE: 61 YEARS, R/O: 2/1076, DHORGALLI THILAK NAGAR, ECHALAKARANJI, MAHARASHTRA – 590 011.

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….RESPONDENTS (BY SRI. SURESH.P.HUDEDAGADDI, ADVOCATE FOR R1 AND R4; SRI. MRUTYUNJAY TATA BANGI ADVOCATE FOR R2 AND R1; SRI. S.S.JOSHI, ADVOCATE FOR R12; SRI.M.NAGARAJ ADVOCATE FOR R13,

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HC-KAR

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R2, R4: SERVICE HELD SUFFICIENT

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R3, R5, R6, R7, R8, R9, R10 AND R11 ARE SERVED, UNREPRESENTED )

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THIS RFA FILED UNDER SEC. 96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD:25.01.2017 PASSED IN O.S.NO.366/2014 ON THE FILE OF THE II-ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION, DECLARATION AND MESNE PROFITS.

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IN RFA.CROB NO. 100009 OF 2024:

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BETWEEN:

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1 . SMT. MANGALA MADHUSUDHAN KATKE @ RADHIKA M. KATKE, D/O GURAPPA BASAPPA GHODKE, W/O MADHUSUDAN KATKE, AGE: 55 YEARS, OCC: HOUSEHOLD R/O: GOPALA, SHIVAMOGGA – 577 201

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2 . SMT. SADHANA W/O SHIVAKUMAR ALAGAVADI, D/O GURAPPA BASAPPA GHODKE, AGE: 59 YEARS, R/O SHOP NO.9, TIMES CENTER, MAROLI CHURCH, R.C. MARG, CHEMBUR, MUMBAI - 590 011.

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HC-KAR

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SMT. KAMALA MUDUKAR GAIKWAD W/O MUDUKAR GAIKWAD, D/O GURAPPA BASAPPA GHODKE, AGE: 77 YEARS, OCC: HOUSEHOLD R/O: DOOR NO.5/121, NIVARA HOUSING SOCIETY, SION, CHUNA BHATTI, MUMBAI – 590 011.

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BY GPA HOLDER SRI. SUBHAS ARUN KATKE, AGE 53 YEARS, OCC: BUSINESS, R/AT: DOOR NO. 803, SKYLINE BEVERLY PARK, AMRUTHAHALLI MAIN ROAD, BENGALURU.

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SMT.VANDANA DHRUVA KUMAR JADAV D/O GURAPPA BASAPPA GHODKE, AGE: 61 YEARS, R/O: 2/1076, DHORGALLI THILAK NAGAR, ECHALAKARANJI, MAHARASHTRA – 590 011.

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...CROSS OBJECTORS

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(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)

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AND:

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SRI ASHOK KOTI ALIYAS KOTI ASHOK S/O GIRIMALLAPPA AGED ABOUT 66 YEARS, OCC. CLOTH MERCHANT R/AT PARASAPUR VILLAGE, TQ. SHIGGAON DIST. HAVERI – 580 038.

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HC-KAR

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SRI. MOHANA GURAPPA CHODKE, S/O GURAPPA BASAPPA GODKE, AGE: 74 YEARS, R/O: BUILDING NO, 19-A, ROOM NO.105, 1^ST FLOOR, MILAN CO-OPERATIVE HOUSING SOCIETY, R.C. MALL, VASHI NAKA, CHEMBUR, MUMBAI - 590 011.

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SRI. DAYANANDA GURAPPA GHODKE, S/O GURAPPA BASAPPA GODKE, AGE: 64 YEARS, R/O: GINJAPPA HALL, 2^ND CROSS, AYODYA NAGAR, NEAR JOSHI HOSPITAL, OLD-HUBBALLI, DIST DHARWAD - 580 038.

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SRI. RAJENDRA GURAPPA GHODKE, S/O GURAPPA BASAPPA GODKE, AGE: 58 YEARS, R/O: NO. 82, SRI.RENUKA NIVASA,2^ND MAIN, OPP. K.G. HALLI POLICE STATION, BENGALURU – 560 089.

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SMT. LAXMI DEVARAJ GHODKE W/O LATE DEVARAJ GHODKE, AGE: 65 YEARS, OCC: HOUSEHOLD R/AT: BASAVESHWARA NAGARA, NEAR WATER TANK, BALLARI ROD, POST: KAMPLI, TQ: HOSAPETE, DIST: BALLARI – 583 101.

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SMT. SHREE W/O RAMESH F. NARAYANKAR D/O LATE DEVARAJA GURAPPA GHODKE, AGE: 36 YEARS,

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HC-KAR

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C/O. VINAYAK XEROX, KUDLIGERI CIRCLE, RAMANAGARA,

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H.B. HALLI – 583 101.

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SMT. KALAVATHI W/O SHIVARAJ RAO D/O LATE DEVARAJ GURAPPA GHODKE, AGE: 39 YEARS, R/O: KONE ELEVATOR INDIA PVT. LTD., ROOM E-A, 207, ULLAS KANNADA KARWAR, MALLAPUR TOWNSHIP (NPCK KAIGA) – 581 343.

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SMT. KUSHBU W/O SACHIN J. D/O LATE DEVARAJ GURAPPA GHODKE, AGE: 28 YEARS, R/O: 2/1076, DHORGALLI, THILAK NAGAR, ECHALAKARANGI – 590 800.

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SRI. PRAVEEN S/O LATE DEVARAJ GHODKE AGE: MAJOR, R/O: BASAVESHWARA NAGAR, NEAR WATER TANK, BALLARI ROAD, POST: KAMPLI, TQ: HOSAPETE, DIST: BALLARI – 583 101.

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SMT. KASTHURI BAI RAM SHINDE D/O GURAPPA BASAPPA GHODKE, AGE: 65 YEARS, OCC: HOUSEHOLD R/O: SECTOR-2, CO-OPERATIVE HOUSING SOCIETY, PRAM SAGAR,

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SHANTHI NAGAR, ROOM NO.402, BUILDING NO.C-39, MIRA ROAD EAST, DIST: THANE, MUMBAI – 590 011.

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SRI. KUMUDINI PRAKASH SONAVANE W/O PRAKASH SONAVANE, D/O GURAPPA BASAPPA GHODKE, AGE: 61 YEARS, R/O: NO.34, 18^TH CROSS, SAGAYA PURUM, HALL LROAD, FRASER TOWN, BENGALURU – 560 089.

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…RESPONDENTS

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(BY SRI. V.M.SHEELVANT ADVOCATE FOR R1; SRI. S.S. JOSHI ADVOCATE ACCEPTS NOTICE FOR R10 (V/O DATED 15.11.2024); SRI. M. NAGARAJ, ADVOCATE ACCEPTS NOTICE FOR R11 (V/O DATED 15.11.2024))

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THIS RFA.CROB IN RFA NO.100182/2017 FILED UNDER ORDER XLI RULE 22 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 25.01.2017 PASSED IN O.S.NO.366/2014 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION, DECLARATION AND MESNE PROFITS.

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THIS APPEAL AND RFA CROB. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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HC-KAR

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CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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CAV JUDGMENT

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RFA No.100182/2017 is filed by the

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appellant/defendant No.1 challenging the judgment and decree dated 25.01.2017 passed in O.S.No.366/2014 by II Addl. Senior Civil Judge, Hubballi, thereby, the suit filed for partition is decreed.

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RFA Crob. No.100009/2024 is filed by plaintiff Nos.1 and 2 and defendant Nos.10 and 13 (daughters) challenging the aforesaid judgment and decree, so far as not granting equal share as that of sons.

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The parties are referred to as per their ranking

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before the trial Court for convenience and easy reference.

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The brief facts of the case are that:

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PLAINT:

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Original propositus late Gurappa S/o Basappa Ghodke and his wife late Smt.Malanabai Gurappa Ghodke died intestate leaving behind four sons and six daughters

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by name Sri Mohan Gurappa Ghodke (defendant No.2), late Sri Devaraj Gurappa Ghodke (father of defendants 6 to 9), Sri Dayanand Gurappa Ghodke (defendant No.3), Sri Rajendra Gurappa Ghodke (defendant No.4), Smt.Kamalabai

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(defendant No.10), Smt. Kasturibai (defendant No.11), Smt.Kumudini (defendant No.12), Smt.Sadhana (plaintiff No.2), Smt. Vandana (defendant No. 13), Smt. Mangala (plaintiff No. 1) as their legal heirs. The original propositus Gurappa died on 21.11.1992 and his wife Smt. Manlanabai died on 03.07.2008. Item No.1 and 2 of plaint ‘A’ schedule properties was purchased out of the income derived from the ancestral properties. But those lands are purchased in the name of propositus late Gurappa Basappa Ghodke. Late Gurappa B.Ghodke had no independent income of his own to purchase those properties in his independent capacity. Hence, item No.1 and 2 of plaint ‘A’ schedule properties are the ancestral properties. Plaint ‘B’ schedule property is also the ancestral property. From 1988 till the

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date of his death i.e., 21.11.1992 the propositus Gurappa

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Ghodke was bed ridden due to his advance age and his memory power was diminished and hence, he never used to go outside since 1980. During his life time, he had not

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made any kind of arrangement by way of partition or he had not made alienation of the suit schedule properties. The suit schedule properties are the joint family properties of the plaintiffs and defendant Nos.2 to 13. Plaintiff Nos.1 and 2 have 2/10^th share, defendant Nos.2 to 4 have 1/10^th share each, defendant Nos.5 to 9 together entitled for 1/10^th share, defendant Nos.10 to 13 have 1/10^th share each in the suit schedule properties. Defendant No.3 was the head of the family and he used to cultivate the suit schedule properties with the assistance of joint family members. The plaintiffs and defendant Nos.10 to 13 started to reside in their respective marital homes subsequent to their marriage. Defendant Nos.2 to 4 and father of defendant Nos.6 to 9 created a fraudulent sale deed dated 28.04.1999 in favour of defendant No.1

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relating to item No.1 of plaint ‘A’ schedule property. They

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have no right to sell item No.1 of plaint ‘A’ schedule property to defendant No.1. The plaintiffs have vested with right in the property and they have a definite share in that property and hence, the said sale deed is illegal, null and void and not binding on their share. On 25.04.2014 they came to know about the execution of sale deed in favour of defendant No.1. Thereafter, they contacted and enquired with defendant Nos.2 to 4, but they have not responded properly. The plaintiffs have preferential right to purchase the suit schedule property. Defendant No.1 is not a bonafide purchaser. On the basis of these grounds, the plaintiffs filed the suit.

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It is the case of the claimants that plaintiff Nos.1 and 2, defendant Nos.2 to 4 and defendant Nos.10 to 13 are the children of late Gurappa Basappa Ghodke (hereinafter referred to as “Gurappa Ghodke”). Defendant No.5 is the widow of late Devaraj Gurappa Ghodke and daughter-in-law of Gurappa Ghodke. The defendants No.6

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to 9 are the children of defendant No.5 and late Devaraj

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Ghodke, which means they are the grand children of Gurappa Ghodke. Defendant No.1 is a stranger to the family of plaintiffs and defendants 2 to 13.

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It is stated that the plaintiffs and defendant Nos.2 to 13 are the members of Hindu Joint family and

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they are governed by Mithakshara Law. Late Gurappa Ghodke and Malanabai are the married couples and out of marital life, they gave birth to 10 children. Out of 10 children, son by name Devaraj died leaving behind defendant Nos.5 to 9 as the legal representatives of deceased Devaraj and Malanabai.

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Gurappa Ghodke who is the common ancestral

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of the plaintiffs and defendant Nos.2 to 13 died on 21.11.1992 and their mother Malanabai died on

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03.07.2008. Their son by name Devaraj died subsequent to the death of Gurappa Ghodke.

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HC-KAR

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It is stated that Gurappa Ghodke hailed from

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agricultural family and his parents were the agriculturists. Out of the family income, item Nos.1 and 2 properties in suit schedule ‘A’ were purchased in the name of Gurappa Ghodke. Gurappa Ghodke did not have any avocation to purchase any property in his individual capacity. The suit schedule ‘B’ property is also an ancestral property. Hence, suit schedule ‘A’ and ‘B’ properties have become the joint family properties. Gurappa Ghodke and his wife Malanabai died intestate. Plaintiff Nos.1 and 2 have got 2/10^th share in all the plaint schedule properties, defendant Nos.2 to 4 have also got 1/10^th share each, defendant Nos.5 to 9 together got 1/10^th share, and defendant Nos.10 to 13 also got 1/10^th share each in the plaint schedule properties.

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It is submitted that, during the life time of Gurappa Ghodke, he has not made any arrangement or alienation by way of partition or any other mode. It is stated that, since 1988 till 21.11.1992 Gurappa Ghodke

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was bed ridden due to his old age and also his memory power was diminished. Defendant No.3 was the head of the family and he was looking after the entire family affairs. Defendant No.3 with the help of other family members was cultivating suit schedule ‘A’ – item Nos.1 and 2 properties.

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The plaintiffs and defendant Nos.10 to 13 after their marriage were living with their respective matrimonial home. It is submitted that immediately after the death of Gurappa Ghodke, plaintiffs and defendant Nos.10 to 13 got inherited right.

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It is the case of the plaintiffs that at no point of time plaintiffs have not given any consent or willingness to defendant Nos.2 to 4 and late Devaraj to enjoy or treat the schedule properties as belonging to them only. The plaintiffs are entitled to get their shares in the schedule properties.

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HC-KAR

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It is stated that defendant Nos.2 to 4 and late Devaraj have created one fraudulent document as sale deed in respect of item No.1 of 'A' schedule property. Defendant Nos.2 to 4 have no such legal right to create sale deed in favour of defendant No.1. Defendant No.1 is not in possession of item No.1 of ‘A’ schedule property. The plaintiffs have undivided share and defendant No.1 has no right to claim possession along with the family members. The sale deed dated 28.04.1999 executed in favour of defendant No.1 by defendant Nos.2 to 4 and late Devaraj is not binding on the plaintiffs. Therefore, defendant No.1 is having limited claim of the shares of defendant Nos.2 to 4 and late Devaraj.

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It is stated that the plaintiffs came to know about the fraudulent sale deed on 25.04.2014. Thereafter, they approached defendant Nos.2 to 4 for partition, but they have not given share.

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The Khata and RTCs are still standing in the

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name of Malanabai and Gurappa Ghodke. All the plaintiffs and defendant Nos.2 to 4, defendant Nos.5 to 9 and defendant Nos.10 to 13 have shares as above stated.

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It is stated that defendant No.1 is not the bonafide purchaser as he had not taken consent from the plaintiffs to purchase the plaint ‘A’ schedule item No.1 property. Therefore, defendant No.1 does not have any right over plaint ‘A’ schedule item No.1 property. Therefore, prayed for the relief of partition and separate possession of the plaintiffs in plaint ‘A’ and ‘B’ schedule properties by metes and bounds and also prayed for the relief of declaration to declare that the alleged sale deed dated 28.04.1999 is not binding on the plaintiffs. Further prayed to direct defendant No.1 to execute the sale deed in favour of plaintiffs and the same belonging to defendant Nos.2 to 4 and late Devaraj and for mesne profit. Thus, they filed the suit for partition and separate possession as above stated.

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HC-KAR

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WRITTEN STATEMENT OF DEFENDANT No.1:

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Defendant No.1 has appeared through Advocate

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and filed the written statement and denied all the averments made in the plaint except the relationship of family of Gurappa Ghodke. It is further denied that the plaintiffs have 1/10^th share each. Defendant No.1 denied that during the lifetime of Gurappa Ghodke, he has not made any arrangement or alienation by way of partition or any other mode. Further denied that, Gurappa Ghodke was bed ridden from 1988 till 21.11.1992.

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Defendant No.1 denied that after the death of

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Gurappa Ghodke, plaintiffs and defendant Nos.10 to 13 got inherited right. Further denied that the plaintiffs and defendant Nos.10 to 13 have not given consent for execution of sale deed in favour of defendant No.1. Further denied the false and fraudulent sale deed executed by defendant Nos.2 to 4 and late Devaraj in favour of defendant No.1.

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HC-KAR

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Defendant No.1 totally denied the case of the plaintiffs and pleaded that the plaintiffs and defendant Nos.2 to 13 are not entitled for any share as they have consented for the sale deed executed in favour of defendant No.1.

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Defendant No.1 in the written statement has stated some pleadings as true facts of the case. Gurappa Ghodke was the propositus of the family. Item No.1 of suit schedule ‘A’ property was purchased by late Gurappa Ghodke during his lifetime. There was partition between late Gurappa Ghodke and his sons and daughters. As per the partition, suit schedule ‘A’ - item No.1 property was allotted to the share of defendant Nos.2 to 4 and another son late Devaraj. As per the partition, defendant Nos.2 to

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4 and late Devaraj applied for mutating their names in the revenue records in respect of suit schedule ‘A’ - item No.1 property. As per the partition, mutations were effected in the name of defendant Nos.2 to 4 and late Devaraj with

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regard to suit schedule ‘A’ - item No.1 property through

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ME.No.914. Therefore, defendant No.2 to 4 and late

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Devaraj have acquired the absolute title over the suit schedule 'A' - Item No.1 property by virtue of partition deed. They were in joint possession and wahiwat of the suit schedule 'A' - Item No.1 property. ME.No.914 was not challenged by the plaintiffs.

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The legal representatives of late Gurappa Ghodke have consented for the partition and partition was acted upon. The partition deed is binding on the plaintiffs. Unless and until the partition deed is challenged by the plaintiffs, they have no locus standi to file another partition suit.

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It is stated that defendant No.1 after verifying all documents and after getting confirmation that defendant Nos.2 to 4 and late Devaraj are owners and

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they are in actual possession of suit schedule 'A' - Item No.1 property and defendant Nos.2 to 4 and late Devaraj having obtained permission to sell the suit schedule 'A' -

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HC-KAR

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Item No.1 property, defendant No.1 purchased the suit schedule 'A' - Item No.1 property from defendant Nos.2 to 4 and late Devaraj for valuable consideration by registered sale deed dated 28.04.1999. Thereafter, the name of defendant No.1 was mutated in the revenue records. Therefore, the sale deed executed by defendant Nos.2 to 4 and late Devaraj is legal and valid for all legal intents and purposes. The plaintiffs have not challenged the mutation entries and partition deed. Unless and until the previous partition is challenged and it is not cancelled, the plaintiffs do not have any locus standi to file the suit. The plaintiffs have filed the suit in collusion with defendant Nos.2 to 13 for making illegal demands, since value of the suit land has increased in recent years.

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It is stated that defendant No.1 is the bonafide purchaser of suit schedule 'A' - Item No.1 property for valuable consideration. However, making disclaimer that, if the plaintiffs have any share in the suit schedule ‘A’ - Item No.1 property by adjusting equities, this defendant is

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entitled for share in suit schedule 'A' - Item No.1 property in the partition, if any among plaintiffs and defendant Nos.2 to 4. Therefore, pleaded that defendant No.1 is ready to pay the Court fee, if any payable to that effect as ordered by the Court.

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The plaintiffs have not challenged the sale deed of defendant No.1 and thus, it is binding on the plaintiffs and defendant Nos.5 to 14. Defendant No.1 after purchasing suit schedule ‘A’ - item No.1 property has developed the land by investing huge amount by raising loan from the bank. Therefore, the plaintiffs in collusion with defendant Nos.2 to 13 have filed the suit just to swallow up the suit schedule ‘A’ - item No.1 property.

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Defendant No.1 is not concerned with any other properties except suit schedule 'A' - Item No.1 property. Therefore, prayed to dismiss the suit.

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WRITTEN STATEMENT OF DEFENDANT NO. 3:

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Defendant No.3 has filed the written statement

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denying all the averments made in the plaint except the relationship pleaded in the plaint. It is submitted that suit schedule ‘A’ and ‘B’ properties are joint family properties. Defendant No.3 pleaded that Gurappa Ghodke and his wife Malanabai died intestate leaving behind plaintiffs and defendant Nos.2 to 13 as their class one heirs. It is stated that plaintiff Nos.1 and 2 have got 2/10^th share in all the plaint schedule properties. Defendant Nos.2 to 4 have also got 1/10^th share in the plaint schedule properties. Defendant Nos.5 to 9 together are entitled for 1/10^th share being legal heirs of late Devaraj. Defendant Nos.10 to 13 also got 1/10^th share each in the plaint schedule properties. From 1988 till 21.11.1992 Gurappa Ghodke was bed ridden due to his advanced age and his memory power was diminished, therefore, he was never used to go outside since 1980. Defendant No.3 denied that he was the head of the family and looking after the entire family affairs.

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It is submitted that the plaintiffs and defendant Nos.10 to 13 after their marriage are leaving with their respective matrimonial home.

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The total pleadings of defendant No.3 made in length is almost supporting the case of the plaintiffs. At one stretch, defendant No.3 is denying the case of the plaintiffs, but at another stretch, admitting the case of the plaintiffs by stating that the plaintiffs have also share in the suit schedule properties. It is denied that the plaintiffs and defendant Nos.2 to 13 have equal share.

¶197

Defendant No.3 made further averments as true

¶198

facts of the case that the plaintiffs and defendant Nos.2 to 13 have inherited item No.1 of 'A' schedule property and Defendant No.3 being the joint family member was taking care of his father and mother. Till the last breath of

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Gurappa Ghodke, defendant No.3 was taking care of his father. During the life time of Gurappa Ghodke, family partition was taken place, in which, item No.1 of 'A'

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schedule property was fallen into the share of defendant No.3 and his three brothers to the extent of 23 acres 26 guntas. Therefore, in the presence of elders, the partition deed was effected and the same was given to the Thasildar, Hubbali, to mutate their names as per the family partition and accordingly, their names were mutated. To meet out the family necessities and to pay the loan availed by late Gurappa Ghodke, defendant Nos.2 to 4 and late Devaraj had sold the properties to defendant No.1 for its market value. It is stated that defendant No.1 is the bonafide purchaser of item No.1 of ‘A’ schedule property. Defendant Nos.2 to 4 and late Devaraj have taken the oral consent of the plaintiffs to sell the said property in favour of defendant No.1. Accordingly, the sale deed dated 28.04.1999 was executed.

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After the death of Gurappa Ghodke, his wife Malanabai inherited item No.2 of ‘A’ schedule property. During her lifetime, she has bequeathed her rights to defendant Nos.3 and 4 by way of registered Will dated

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02.07.2003. After the death of Malanabai, defendant Nos.3

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and 4 have become the absolute owners of item No.2 of ‘A’ schedule properties and this is within the knowledge of plaintiffs. Further stated that the plaintiffs do not have any right over the suit schedule properties as they have relinquished their shares and the plaintiffs have executed the relinquishment deed dated 21.04.2008, therefore, in the suit schedule ‘B’ property, the plaintiffs and defendants except defendant Nos.3 and 4 have got no share.

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The transactions of sale deed, gift deed and relinquishment deed were conveyed with the consent of plaintiffs and they are the sisters of defendant No.3, but the plaintiffs have been mutated maliciously and hence, filed false and frivolous suit. Thus, prays to dismiss the suit.

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Defendant Nos.11 and 12 have filed their separate written statement by admitting the relationship

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between the plaintiffs and defendant Nos.2 to 13 and constitute Hindu joint family and the suit schedule properties are joint family properties. Both these defendant Nos.11 and 12 have filed their written

¶216

statement to the effect that they are also having share in the suit schedule properties. Therefore, prayed for share in the suit schedule properties. It is also stated that defendant No.1 is not the bonafide purchaser of suit schedule ‘A’ - item No.1 property. Hence, prays for partition in the suit schedule properties.

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Defendant No.11 filed the counter claim in the

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written statement and prays for partition by claiming 1/10^th share in the counter claim properties. Therefore, the net effect of filing written statement by defendant Nos.11 and 12 is that for claiming shares of 1/10^th each in suit schedule ‘A’ and ‘B’ properties.

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Upon the pleadings, the trial Court has framed the following issues:

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“(1) Whether the plaintiffs prove that they and the defendants are the members of Hindu undivided joint family and further prove that the suit properties are their joint family properties?

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(2) Whether the plaintiffs prove that the sale deed dt.28/4/1999 bearing SR No.385/1999-2000 is not binding on their share?

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(3) Whether the defendant No.11 proves that he is entitled for 1/10^th share as prayed in the counter claim?

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(4) Whether the defendant No.11 is entitle for mesne profits as prayed in the counter claim?

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(5) Whether the plaintiffs are entitle for mesne profits?

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(6) Whether the plaintiffs are entitle for the suit claim?

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(7) What order or decree?

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ADDITIONAL ISSUES:

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(1) Whether the defendant No.3 proves that he became the absolute owner of item No.2 of Plaint-A schedule property by virtue of the registered WILL dt.2-7-2003 executed by mother of plaintiff by name Malanbai W/o Gurappa Ghodke and

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further proves that the plaintiffs have no manner of right or share in that property?

¶235

(2) Whether the defendant No.3 proves that he became the absolute owner of plaint-B schedule property by virtue of 'Hakku Bitta Patravu' dt.21-4-2008 executed by the plaintiffs and other defendants and further proves that the plaintiffs have no right or share over that property?

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(3) Whether the defendant No.1 proves that he is a bonafide purchaser of item No.1 of plaint 'A' schedule property?”

¶237

Plaintiff No.1 is examined as P.W.1 and got

¶238

marked the documents as Ex.P.1 to Ex.P.16. Defendant No.1 is examined as D.W.1 and three witnesses are examined as D.W.2 to 4 and got marked the documentary evidence as Ex.D.1 to Ex.D.34 and Ex.D.34(a).

¶239

REASONING S OF TRAIL COURT:

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The trial Court has decreed the suit in part and granted shares in plaint ‘A’ schedule property and counter claim ‘B’ schedule properties dividing into five shares among the original proprietors and his four sons and all of them are entitled to 1/5^th share each. Further 1/5^th share

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which is allotted to the original propositors have to be divided among plaintiff Nos.1 and 2, defendant Nos.2 to 4, husband of defendant No.5 and defendant Nos.10 to 13 and all of them are entitled for 1/10^th share each. Defendant Nos.5 to 9 being the legal heirs of late Devaraj are together entitled for share which is fallen to the share of deceased Devaraj. Further declared that the sale deed dated 28.04.1999 is not binding on the share of the plaintiffs, but it is binding on defendant Nos.2 to 9 and further ordered for mesne profit.

¶245

The trial Court assigned the reasons while answering issue No.1 that the plaintiffs have proved that they and defendant Nos.2 to 13 are the members of Hindu undivided joint family and suit properties are joint family properties. Further held that the sale deed dated 28.04.1999 is not binding on the plaintiffs’ share. Further held that defendant No.11 is entitled for 1/10^th share as filed in the counter claim and also it is held that defendant

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No.11 and plaintiffs are entitled for mesne profit as filed in

¶250

the counter claim.

¶251

Further defendant No.3 has failed to prove that he became the absolute owner of item No.2 of plaint ‘A’ schedule property by virtue of registered sale deed dated 02.07.2003. Further defendant No.3 failed to prove that he became the absolute owner of plaint ‘B’ schedule property by virtue of Hakku Bitta Patravu dated 21.04.2008. Further held that defendant No.1 is the bonafide purchaser in respect of shares of the sons of original propositors, but that sale deed is not binding on the shares of plaintiffs.

¶252

The trial Court upon considering the evidence

¶253

on record assigned the reasons that defendant Nos.2 to 13 are the members of Hindu joint family by rejecting the contention of defendant No.3 that there was earlier partition. The trial Court held that the prior partition is not proved. Therefore, the plaintiffs and defendant Nos.2 to 13

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are entitled for share. The trial Court held that Ex.D.16-

¶258

mutation entry extract is not legal one and as such, the mutation is not sufficient to prove the partition. The trial Court assigned the reason that though, defendant No.1 is proved to be the bonafide purchaser of suit schedule ‘A’ - item No.1 property, but the plaintiffs and defendant Nos.10 to 13 are daughters and hence, they are coparceners and they are entitled for share in suit schedule ‘A’ - item No.1 property. Therefore, it is held that the sale deed dated 28.04.1999 is only binding on defendant Nos.2 to 9. The trial Court assigned the reason that defendant No.1 examined as D.W.1 in his crossexamination has admitted that suit schedule ‘A’ - item No.1 property is an ancestral property. Therefore, as per his admission itself, plaintiffs No.1 and 2 and defendant Nos.10 to 13 being daughters of propositus Gurappa

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Ghodke have vested with right in suit schedule ‘A’ - item No.1 property. Thus, granted share in the said property. Therefore, the trial Court has decreed the suit by granting

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share to the plaintiffs and defendant Nos.2 to 13 including suit schedule ‘A’ - item No.1 property. Also declared that

¶264

the sale deed dated 28.04.1999 is not binding on the share of the plaintiffs, but it is binding on defendant Nos.2 to 9 and granted mesne profit.

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Further assigned reasons that the suit schedule ‘A’ - item No.1 property was sold on 28.04.1999, which is

¶266

after coming into force of amendment to Section 6 of Hindu Succession Act by Karnataka Amendment Act. Section 6 recognizes that the daughters are also coparceners. Therefore, the sale transaction dated 28.04.1999 is hit by Karnataka Amendment Act to Section 6 of the Hindu Succession Act. This Karnataka Amendment Act inserted Sections 6(a), 6(b) and 6(c) by the Karnataka Act 23 of 1994 w.e.f. 30.07.1994. Therefore, the plaintiffs and defendant Nos.10 to 13 are also entitled for share in suit schedule ‘A’ - item No.1 property. Thus, the trial Court is correct in holding that the sale transaction in respect of suit schedule ‘A’ - item No.1 property dated 28.04.1999 is

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not binding on the plaintiffs and defendant Nos.10 to 13.

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Therefore, decreed the suit.

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Further the trial Court by following the judgment of the Hon’ble Supreme Court in the case of PRAKASH AND OTHERS v/s THIMMAMMA AND OTHERS¹ adopted the theory of notional partition has divided the property by 1/5^th share to Gurappa Ghodke and defendant Nos.2 to 4 and late Devaraj (father and sons) and the share of Gurappa Ghodke was further divided into 10 equal shares. Accordingly, granted the shares.

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Being aggrieved by the judgment and decree insofar as partitioning suit schedule ‘A’ - item No.1 property, defendant No.1 has preferred the present appeal. The respondents have appeared through their Advocates. Cross objection is filed by plaintiffs and

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1 2015 (2) KCCR 1334

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defendant Nos.10 to 13 praying for equal shares as that of

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sons.

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Heard the argument from both sides and

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perused the records.

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The points that arise for consideration are as

¶283

follows:

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(i) Whether, under the facts and circumstances involved in the case, the plaintiffs prove that the suit schedule ‘A’ and ‘B’ properties are joint family properties including suit schedule ‘A’ - Item No.1 property?

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(ii) Whether, under the facts and circumstances involved in the case, the plaintiffs are entitled for share in the suit schedule ‘A’ - Item No.1 property?

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(iii) Whether, under the facts and circumstances involved in the case, defendant No.1 proved to be the bonafide purchaser of suit schedule ‘A’ - item No.1 property?

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(iv) Whether, under the facts and circumstances involved in the case, the judgment and decree passed by the trial Court requires interference by

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this Court insofar as suit schedule ‘A’ - item No.1 property?

¶292

All the points are interlinked with each other,

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hence, they are taken up for common consideration.

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SUBMISSION OF COUNSEL FOR DEFENDANT NO.1/APPELLANT:

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Learned counsel for the appellant/defendant No.1 vehemently submitted that the suit filed by the plaintiffs is in collusion with defendant Nos.2 to 13. The appellant/defendant No.1 is only concerned to suit schedule ‘A’ - item No.1 property. Defendant No.1 is the bonafide purchase of suit schedule ‘A’ - item No.1 property. It is submitted that the plaintiffs do not have any knowledge regarding the case and the suit is filed by the plaintiffs at the behest of defendants Nos.2 to 13 just to deprive the ownership of defendant No.1 over the suit schedule ‘A’ - item No.1 property. There was partition earlier between the father and defendant Nos.2 to 4 and late Devaraj and suit schedule ‘A’ - item No.1 property

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was fallen to the share of defendant Nos.2 to 4 and late Devaraj and subsequently on 28.04.1999 this property was transferred to defendant No.1. Therefore, defendant No.1 is the bonafide purchaser, but the plaintiffs and defendant Nos.2 to 13 have hatched a plan to engulf the suit schedule ‘A’ - item No.1 property and thus, filed a false and frivolous suit for partition and in this way, other inclusion of property are just to make an eye wash just to make convenient in filing the suit for partition. Therefore, the entire suit is revolving around suit schedule ‘A’ - item No.1 property. Therefore, submitted that the suit filed is a well designed plan just to deprive the ownership of defendant No.1 over this property. The very admissions of P.W.1 in the cross-examination and documentary evidence placed proved the fact that how the suit is well designed and the plaintiffs did not have knowledge regarding filing of the suit, hence they have become puppet at the hands of defendant Nos.2 to 13. Therefore, decreeing the suit including suit schedule ‘A’ - item No.1 property is not

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correct. Therefore, submitted that the judgment and decree passed by the trial Court insofar as partitioning suit schedule ‘A’ - item No.1 property is not correct. Defendant No.1 has no objection for partitioning other properties. Therefore, prays to allow the appeal.

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SUBMISSION OF COUNSEL FOR PLAINTIFF 1 AND 2 AND CROSS OBJECTOR:

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On the other hand, learned counsel appearing for the respondents who are plaintiff Nos.1 and 2 and defendant Nos.2 to 13 submitted that there was no earlier partition and even though whatever partition might be between Gurappa Ghodke and defendant Nos.2 to 4 and late Devaraj, for this, there was no consent by the plaintiffs and defendant Nos.10 to 13. Therefore, whatever sale made by defendant Nos.2 to 4 and late Devaraj in respect of suit schedule ‘A’ - item No.1 property is binding

¶306

on them, but not binding on the plaintiffs and defendant Nos.10 to 13. Thus, it is correctly held by the trial Court

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and hence, decreeing the suit is proper. Therefore, prays

¶311

to dismiss the appeal.

¶312

Further submitted that the suit schedule ‘A’ - item No.1 property was sold on 28.04.1999, which is after

¶313

coming into force of amendment to Section 6 of Hindu Succession Act by Karnataka Amendment Act. Section 6 recognizes that the daughters are also coparceners. Therefore, the sale transaction dated 28.04.1999 is hit by Karnataka Amendment Act to Section 6 of the Hindu Succession Act. This Karnataka Amendment Act inserted Sections 6(a), 6(b) and 6(c) by the Karnataka Act 23 of 1994 w.e.f. 30.07.1994. Therefore, the plaintiffs and defendant Nos.10 to 13 are also entitled for share in suit schedule ‘A’ - item No.1 property. Thus, the trial Court is correct in holding that the sale transaction in respect of suit schedule ‘A’ - item No.1 property dated 28.04.1999 is not binding on the plaintiffs and defendant Nos.10 to 13. Therefore, prays to dismiss the appeal.

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Learned counsel for the cross-objectors/plaintiff

¶318

Nos.1 and 2 and defendant Nos.10 to 13 submits that adopting the theory of notional partition is not correct as these cross-objectors are also entitled for equal share in all the properties as per the judgment of the Hon’ble Supreme Court in the case of Vineeta Sharma Vs. Rakesh Sharma and Others² . Therefore, prays for grant of 1/10^th share each to all the plaintiffs and defendant Nos.2 to 4, defendant Nos.5 to 9 and defendant Nos.10 to 13 respectively. To this effect, the cross objection is filed. Therefore, learned counsel for the cross-objectors by placing reliance on the judgment of the Hon’ble Supreme Court in the case of Vineeta Sharma (stated supra) prays for grant of equal share to the plaintiffs and other daughters as that of sons as per Section 6 of the Hindu Succession Act (Karnataka Amendment Act 23 of 1994).

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2 MANU/SC/0582/2020

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REASONS:

¶324

The plaintiffs have filed the suit for partition of suit schedule ‘A’ and ‘B’ properties by metes and bounds and mesne profit and also prays for declaration that the sale deed dated 28.04.1999 in respect of suit schedule ‘A’

¶325

item No.1 property sold to defendant No.1 is not binding on the plaintiffs and defendant Nos.10 to 13. At this stage, the argument canvassed by the learned counsel for the appellant/defendant No.1 is to be taken into consideration. Though, the plaintiffs have filed the suit for partition by claiming share in plaint ‘A’ and ‘B’ schedule properties, but as per the submission of counsel for the appellant/defendant No.1, eye of the plaintiffs and defendant Nos.2 to 13 are on the suit schedule ‘A’ - Item No.1 property. The other properties are only for formalities to make convenient to file the suit for partition. Though,

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the suit schedule ‘A’ and ‘B’ properties are ancestral properties, but it is the claim of defendant No.1 that he is the bonafide purchase of suit schedule ‘A’ - Item No.1

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property through valid registered sale deed dated 28.04.1999. It is the argument canvassed by the learned counsel for the appellant/defendant No.1 that the suit filed is one collusive in nature between the plaintiffs and defendant Nos.2 to 13 just to deprive the legitimate ownership of defendant No.1 over the suit schedule ‘A’ - Item No.1 property.

¶331

This appeal is only confined to suit schedule ‘A’

¶332

Item No.1 property. Learned counsel for the appellant/defendant No.1 submitted that defendant No.1 is not at all concerned with other properties of schedule ‘A’ and ‘B’ properties except suit schedule ‘A’ - Item No.1 property. Ex.D.16 is the mutation entry extract, by which, on 19.11.1990 Gurappa Ghodke and defendant Nos.2 to 4

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and late Devaraj had partitioned themselves. As per Ex.D.16- mutation entry extract, Gurappa Ghodke has been allotted share in the lands in Survey No.99 measuring 9 acres 25 guntas, which is item No.2 property. Defendant Nos.2 to 4 and late Devaraj have obtained

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share in the land in Survey No.97 to the extent of 5 acres 36 guntas, 5 acres 36 guntas, 5 acres 36 guntas and 5 acres 38 guntas respectively between defendant Nos.2 to 4 and late Devaraj, totally 23 acres 26 guntas, which is suit schedule ‘A’ - item No.1 property. Defendant No.1 does not have any objection regarding the plaintiffs and defendant Nos.2 to 13 are the members of Hindu undivided joint family and also suit schedule ‘A’ and ‘B’ properties except schedule ‘A’ - item No.1 property. Though, as per Ex.D.16-mutation entry extract the daughters have not been given shares and as per this partition, it is only between Gurappa Ghodke and sons – defendant Nos.2 to 4 and late Devaraj. The said oral partition is reflected in the mutation extract i.e., ME.No.914. Defendant No.1 has purchased the suit schedule ‘A’ - Item No.1 property through the registered

¶338

sale deed dated 28.04.1999 as per Ex.D.1 from defendant Nos.2 to 4 and late Devaraj. Ex.D.18 is the memorandum

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of partition, but the trial Court has disbelieved the same by misconstruing itself that it is the partition deed.

¶343

The trial Court has wrongly observed that the partition deed was not produced and only Ex.D.18 is the memorandum of partition, but it does not prove that there was earlier partition. There is difference between partition deed and memorandum of partition. As per Ex.D.16 and Ex.D.18 what is proved is that there was partition among Gurappa Ghodke, defendant Nos.2 to 4 and late Devaraj and later it was reduced into writing on 12.11.1990 as per Ex.D.18. As per this Ex.D.18- memorandum of partition, Gurappa Ghodke has obtained share in item No.2 of suit schedule ‘A’ property and defendant Nos.2 to 4 and late Devaraj collectively have taken the share in item No.1 of ‘A’ schedule property.

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The trial Court here in this regard has found fault by misconstruing itself that the partition deed was not produced before the Court. As per Ex.D.16 and

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Ex.D.18 what is proved the fact is that there was oral partition between Gurappa Ghodke and his sons-defendant Nos.2 to 4 and late Devaraj and that is reduced into writing on 12.11.1990 by giving report to the Village Accountant, Parasapur Village, Hubballi Taluk. Accordingly, it was mutated as Mutation Entry No.914 dated 19.11.1990. Therefore, there was partition during the lifetime of Gurappa Ghodke. Gurappa Ghodke died on 21.11.1992 and his wife Malanabai died on 03.07.2008. Therefore, during the lifetime of Gurappa Ghodke and Malanabai, there was partition in the family. Here the only dispute in the suit and in the appeal is with regard to suit schedule ‘A’ - Item No.1 property. The entire suit and appeal is confined only to suit schedule ‘A’ - Item No.1 property. This suit schedule ‘A’ - Item No.1 property was fallen to the share of defendant Nos.2 to 4 and late

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Devaraj as per Ex.D.16 and Ex.D.18. Therefore, this partition was effected much prior to coming into force of Amendment to the Hindu Succession Act by Karnataka

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Amendment Act 23 of 1994 w.e.f. 30.07.1994. At that

¶354

time, the daughters were not recognized as coparceners.

¶355

Learned counsel for the cross-objectors in RFA.Crob.No.100009/2024 submitted that the plaintiffs and defendant Nos.10 to 13 are claiming their right as per Section 8 of the Hindu Succession Act, but not as per Section 6 of the Hindu Succession Act. It is the argument

¶356

by the learned counsel for the cross objectors that Gurappa Ghodke died intestate, therefore, the properties devolve according to Section 8 of the Hindu Succession

¶357

Act, but not as per Section 6 of the Hindu Succession Act.

¶358

Though, Gurappa Ghodke died intestate, but during his lifetime there was partition among Gurappa Ghodke and sons defendant Nos.2 to 4 and late Devaraj in respect of item Nos.1 and 2 of suit schedule ‘A’ property. Defendant No.1 is the purchaser of suit schedule ‘A’ - item No.1 property and he is not concerned with other properties in

¶359

the plaint schedule. The trial Court held that defendant No.1 is the bonafide purchaser of suit schedule ‘A’ - item

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No.1 property and it is binding only on defendant Nos.2 to

¶364

9, but not binding on the plaintiffs and defendant Nos.10 to 13. This observation of the trial Court is not correct. On 12.11.1990 as per the report given before the Revenue Authorities, there was already partition in the family of item Nos.1 and 2 properties of plaint schedule ‘A’ property. Therefore, Section 8 of the Hindu Succession Act is not applicable in the present case. If there is no partition and the propositors died intestate, then Section 8 of the Hindu Succession Act would have been applicable, but here there was already partition on 12.11.1990 much before amendment to the Hindu Succession Act both by Karnataka and Central Amendment. This partition is acted upon and mutation is effected as per Ex.D.16-Mutation Entry No.914. Accordingly, the record of rights has been changed as per Ex.D.3. Therefore, after effect of partition on 12.11.1990, the names of defendant Nos.2 to 4 and

¶365

late Devaraj were mutated in the revenue records. Thereafter, on 28.04.1999 defendant No.1 has purchased

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suit schedule ‘A’ - item No.1 property from them through the registered sale deed as per Ex.D.1. It is also pertinent to mention here that Ex.D.14 and Ex.D.15 are the permission obtained by the competent authorities for selling suit schedule ‘A’ - item No.1 property. Ex.D.14 and Ex.D.15 are the orders dated 27.02.1999 by mentioning defendant Nos.2 to 4 and late Devaraj are the owners of property and accordingly, permission is given to them to sell the land. Therefore, the partition effected as per Ex.D.16 and Ex.D.18 was acted upon and mutations were effected and later on, defendant No.1 has purchased suit schedule ‘A’ - item No.1 property.

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Therefore, in this regard, the trial Court has committed error though held that defendant No.1 is proved to be the bonafide purchaser of suit schedule ‘A’ - item No.1 property, but not binding on the plaintiffs and defendant Nos.10 to 13. This partition effected on 12.11.1990 as above discussed is acted upon and is saved

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by Proviso to Section 6 of the Hindu Succession Act

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(Central Amendment Act, Act 39 of 2005 w.e.f. 9.9.2005).

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Proviso to Section 6 reads as follows:

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“6. Devolution of interest in coparcenary property- (1) x x x (a) x x x (b) x x x (c) x x x

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Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20^th day of December, 2004.”

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Learned counsel for the cross objectors has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Vineeta Sharma (stated supra), wherein the applicability of Proviso to Section 6 of the Hindu Succession Act is only when the partition is registered partition by placing reliance on explanation to Sub-section 5 of Section 6 of Hindu Succession Act. Therefore, it is argued by the learned counsel for the cross

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objectors that, in this case, the partition as per Ex.D.16 and Ex.D.18 effected on 12.11.1990 is not a registered partition, therefore, as per explanation to Sub-section 5 of Section 6 of the Hindu Succession Act, the partition in this

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case could not be recognized as a partition effected in the family. Thus, argued Proviso to Section 6 of the Hindu Succession Act is not applicable. The Hon’ble Supreme Court in the case of Vineeta Sharma (stated supra) after comprehensive discussion on this proviso at paragraph No.129 held as under:

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“129. Resultantly, we answer the reference as under:

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(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

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(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20^TH day of December, 2004.

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(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

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(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally

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enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

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(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.”

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(Emphasis supplied)

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Therefore, as per Clause 5 in paragraph No.129

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in Vineeta Sharma’s case (stated supra) in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it

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may be accepted. A plea of partition based on oral evidence alone cannot be accepted. In the present case also, Ex.D.18 proves that there was oral partition and it was reduced into writing which could be recognised as memorandum of partition by giving report/vardi to the revenue authorities as per Ex.D.18 and accordingly, it was entered into revenue records in ME.No.914 as per Ex.D.16. This Ex.D.16 is the public document. Therefore, as per the principle of law laid down by the Hon’ble Supreme Court in the case of Vineeta Sharma (stated supra), the partition effected as per report/vardi dated 12.11.1990 Ex.D.18, the partition is accepted and it is recognized. Therefore, defendant No.1 has conclusively proved to be the bonafide purchaser of suit schedule ‘A’ – Item No.1 property, in which, the plaintiffs and defendant Nos.10 to 13 do not have any right over this suit schedule ‘A’ – Item No.1 property.

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Insofar as other schedule properties are concerned, there is no dispute that suit schedule ‘A’ –

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Item No.2 property and schedule ‘B’ properties are ancestral properties. The trial Court is correct in holding that these properties are ancestral properties, but for the reason discussed above, suit schedule ‘A’ – Item No.1 property do not remain as a joint family property as it was severed by the partition effected on 12.11.1990.

¶405

Further considering the manner, in which, the suit is filed, it is worth to discuss the evidence of plaintiff No.1/ PW.1 given in the cross-examination. Considering the submission made by the learned counsel for the appellant/defendant No.1 with reference to admissions given by PW.1 in the cross-examination ought to be considered here. It is the argument of learned counsel for the appellant/defendant No.1 that the suit filed by the plaintiffs is in collusion with defendant Nos.2 to 13 just to cause deprivation of ownership of defendant No.1/appellant over the suit schedule ‘A’ – Item No.1 property as the plaintiffs at the behest of defendant Nos.2 to 13 have filed the present false and frivolous suit. In this

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regard, the admission given by PW.1 is considered. PW.1 in the cross-examination admitted that the suit schedule ‘A’ property was standing in the name of her brothers from the year 1990. Further PW.1 admitted that defendant Nos.2 to 4 have sold the suit schedule ‘A’ – Item No.1 property to defendant No.1 for the purpose of clearance of loan raised by her father and to meet medical expenditure of her mother.

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In this regard, when PW.1 admitted that from the year 1990 her brothers’ name were standing in the revenue records in respect of suit schedule ‘A’ – Item No.1 property and in the year 1999, she knew the fact that suit schedule ‘A’ – Item No.1 property was sold to defendant No.1 by defendant Nos.2 to 4 and late Devaraj, but that is not questioned. Though, PW.1 had stated that she did not know the sale deed executed in the year 1999, but had admitted that in the year 2008, she knew that such sale deed was executed by defendant Nos.2 to 4 and late Devaraj in favour of defendant No.1, but the suit is filed in

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the year 2014. This evidence proves the fact that the suit filed by the plaintiffs is well designed plan at the behest of defendant Nos.2 to 13.

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Further in the cross-examination, plaintiff No.1/P.W.1 admitted she does not know that defendant Nos.2 to 4 and late Devaraj have executed the registered sale deed in favour of defendant No.1 with the consent of plaintiffs. Therefore, the plaintiffs have not questioned their brothers, for which, the answer given is she did not know the said fact. The manner, in which, the answer given by PW.1 proves the fact that the plaintiffs knew regarding the partition effected in the year 1990 and subsequent sale deed dated 28.04.1999 which was consented by the plaintiffs, though there was no written consent. Further admitted that the suit schedule ‘A’- item No.2 property was standing in the name of her mother malanabai. Further admitted that as per the partition effected in the year 1990, the suit schedule ‘A’ - item No.2 property was fallen to her mother. Therefore, these

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admissions prove that the plaintiffs knew the partition effected in the year 1990. Further plaintiff No.1/PW.1 admitted that her mother Malanabai had executed Will bequeathing plaint schedule ‘A’ - item No.2 property to defendant Nos.3 and 4. Therefore, all the admissions go to prove that there was partition effected in the family in the year 1990 and the plaintiffs knew this fact.

¶420

Further it is interesting to discuss the admissions given by PW.1 in the course of crossexamination that it is proved that the suit is filed in collusion with defendant Nos.2 to 13. PW.1 admitted in the cross-examination that her brothers have given information and particulars to file the suit. PW.1 admitted that defendant No.4 specifically has given necessary information and particulars to file the suit. Further P.W.1 made ignorance about the properties involved in the suit, but stated that her brothers knew for which property the suit is filed.

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Further it is admitted that all the plaintiffs and defendant Nos.2 to 4 together have filed the suit, therefore, these admissions of PW.1 in the course of cross-examination recorded on 17.09.2016 clearly and conclusively prove the fact that the suit filed by the plaintiffs is in collusion with defendant Nos.2 to 13. PW.1 admitted that she does not know the extent and boundaries of the suit properties and also on which document the names were mutated. Further the plaintiffs’ grandfather Basappa had three sons and five daughters and they have legal heirs, but they were not made as parties. Further PW.1 admitted in the cross-examination that how her father got properties and what are the properties, all information are known by her brothersdefendant Nos.2 to 4.

¶425

Further when plaintiff No.1/P.W.1 has pleaded

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in the plaint that from the year 1980 to 1992, her father was not in a position to go outside the house and his memory power was diminished, but for which, there was

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no record produced by the plaintiffs and also by defendant Nos.2 to 13. Further admitted that her father Gurappa Ghodke was in a fit state of health condition, therefore, there was no occasion for giving medical treatment to him. Further it is revealed in the evidence that the plaintiffs have not included the property in Survey No.96 of Parasapur Village to the extent of 25 acres, which is sold to one Parashuram. Therefore, the suit is bad for noninclusion of other joint family and ancestral properties also. Therefore, it is proved that for claiming share in suit schedule ‘A’ - item No.1 property, the suit is filed just to cause deprivation of ownership of defendant No.1 over the suit schedule ‘A’ - item No.1 property.

¶431

Further PW.1 has conveniently answered to the question that she does not know that her brothers have showed the suit schedule ‘A’ - item No.1 property to defendant No.1 and defendant No.1 after verifying all the documents and after taking consent from the plaintiffs had purchased the property. The answer by PW.1 is that she

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does not know. Further PW.1 has answered that she does not know that defendant No.1 is the bonafide purchaser and after getting his name mutated in the records and defendant No.1 is in possession and made huge expenditure towards development of land. PW.1 admitted that since defendant No.1 being the lawful owner over the suit schedule ‘A’ - item No.1 property, therefore, she has not made objection for entering the name of defendant No.1.

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Further PW.1 admitted in the cross-examination that the plaintiffs have not challenged the partition of the year 1990 till filing of the suit in the year 2014. Further admitted that, in the suit also, the partition of the year 1990 was not challenged. Further defendant No.1 has made huge expenditure and developed the land by digging bore well and defendant No.1 is in possession over the suit schedule ‘A’ - item No.1 property. Further PW.1 has given in marriage to a well family, therefore, there is no occasion for claiming share in the suit schedule properties.

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Therefore, upon considering all these evidence, it is proved that the plaintiffs and defendant Nos.2 to 13 in collusion with each other have filed the suit for partition with an eye to swallow up the suit schedule ‘A’ - item No.1 property and for which, other properties are formally claimed in the partition. But the main purpose of filing the suit is to engulf the suit schedule ‘A’ - item No.1 property. Further PW.1 admitted that the plaintiffs are only having interest to claim suit schedule ‘A’ - item No.1 property, but not suit schedule ‘A’ - item No.2 property. Therefore, considering the evidence of PW.1, only with an intention and ill-motive to cause deprivation of ownership of defendant No.1 over the suit schedule ‘A’ - item No.1 property, the present suit is filed. Therefore, the suit filed by the plaintiffs is proved to be ill-motivated.

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Therefore, upon considering the case and appreciation of evidence on record as discussed above, it is proved that the plaintiffs and defendant Nos.2 to 13 are the members of Hindu undivided joint family and the suit

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schedule ‘A’ and ‘B’ properties are ancestral properties, but there was partition in the year 1990 insofar as suit schedule ‘A’ - item Nos.1 and 2 properties and defendant No.1 is the bonafide purchaser of suit schedule ‘A’ - item No.1 property from defendant Nos.2 to 4 and late Devaraj. Therefore, point No.1 is answered in partly affirmative, point No.2 in the negative and point Nos.3 and 4 in affirmative. Therefore, the appeals are liable to be allowed in part.

¶445

The trial Court has not considered Section 6 of the Hindu Succession Act recognizing the daughters as coparceners are entitled for equal share as that of sons. Therefore, adoption of theory of notional partition as it was before the amendment to Hindu Succession Act to Section 6 is not correct. Plaintiff Nos.1 and 2 and defendant Nos.10 to 13 being daughters are also equally entitled for share as that of defendant Nos.2 to 4 and late Devaraj.

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Therefore, the appeal filed by the defendant no.1 is liable to be allowed. The judgment and decree insofar as granting decree for partition with regard to suit schedule ‘A’ - item No.1 property is set aside. The judgment and decree passed insofar as other properties are concerned for partition (other than suit schedule ‘A’ - item No.1 property) is confirmed except quantum of share.

¶450

The appeal filed by defendant No.1 and cross objection filed by plaintiff Nos.1 and 2 and defendant Nos.10 and 13 are allowed in part. The cross objectors namely plaintiff Nos.1 and 2 and defendant Nos.10 to 13 being daughters are entitled for equal share of 1/10^th each along with defendant Nos.2 to 4 and legal heirs of late Devaraj who are defendant Nos.5 to 9 are entitled for 1/10^th share each except in the property of suit schedule ‘A’ - item No.1 property. The decree insofar as partition in respect of suit schedule ‘A’ - item No.1 property is set aside and hereby declared as defendant No.1 is the

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bonafide purchaser of suit schedule ‘A’ - item No.1 property. Therefore, both the appeal and cross objection is

¶455

allowed. Accordingly, I proceed to pass the following

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ORDER

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(i) RFA.No.100182/2017 filed by the appellant/defendant No.1 is allowed.

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(ii) RFA.CROB.No.100009/2024 filed by plaintiff Nos.1 and 2 and defendant Nos.10 and 13 is

¶459

allowed.

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(iii) The judgment and decree dated 25.01.2017 passed in O.S.No.366/2014 by II Addl. Senior Civil Judge, Hubballi, insofar as decree for partitioning the suit schedule ‘A’ - item No.1 property is set aside and confirmed insofar as other properties are concerned by granting share of 1/10^th share

¶461

each to plaintiff Nos.1 and 2, defendant Nos.2 to 4, defendant Nos.5 to 9 together

¶462