Nataraja G M Vs Nagappa Gowda

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NC: 2025:KHC:27764 RSA No. 1077 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF JULY, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1077 OF 2013 (PAR)

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BETWEEN:

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NATARAJA G.M, S/O MURUGEPPA GOWDA S.N., AGED ABOUT 32 YEARS, R/O GULEHALLI, SAGAR TALUK, SHIMOGA DISTRICT - 577 417.

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…APPELLANT

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(BY SRI. JAYAPRAKASH R.V, ADVOCATE)

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AND:

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NAGAPPA GOWDA

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Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA

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S/O LATE NAGAPPA GOWDA, AGED ABOUT 69 YEARS, R/O BESUR VILLAGE, P.O.HULIDEVARABANA, SAGAR TALUK, SHIMOGA DISTRICT - 577 453.

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NANJUNDAPPA

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S/O NAGAPPA GOWDA, AGED ABOUT 42 YEARS, R/O BESUR VILLAGE, P.O. HULIDEVARABANA, SAGAR TALUK, SHIMOGA DISTRICT - 577 453

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GANGADHARAPPA

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S/O NAGAPPA GOWDA, AGED ABOUT 40 YEARS, R/O BESUR VILLAGE, P.O.HULIDEVARABANA, SAGAR TALUK, SHIMOGA DISTRICT - 577 453.

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ESHWARAPPA

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S/O NAGAPPA GOWDA, AGED ABOUT 38 YEARS, R/O BESUR VILLAGE, P.O.HULIDEVARABANA, SAGAR TALUK SHIMOGA DISTRICT - 577 453.

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CHANDRAMMA D/O NAGAPPA GOWDA, AGED ABOUT 37 YEARS, R/O BESUR VILLAGE, P.O.HULIDEVARABANA, SAGAR TALUK, SHIMOGA DISTRICT - 577 453.

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MURUGAPPA GOWDA S/O LATE NAGAPPA GOWDA, AGED ABOUT 67 YEARS, GULLEHALLI VILLAGE, GENASINAKUNI POST, SAGAR TALUK, SHIMOGA DISTRICT - 577 417.

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SMT.PREMALATHA W/O MURUGEPPA GOWDA, AGED ABOUT 65 YEARS,

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GULLEHALLI VILLAGE, GENASINAKUNI POST, SAGAR TALUK, SHIMOGA DISTRICT - 577 417.

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G.M.DEVARAJ S/O MURUGEPPA GOWDA, AGED ABOUT 36 YEARS, GULLEHALLI VILLAGE, GENASINAKUNI POST, SAGAR TALUK, SHIMOGA DISTRICT - 577 417.

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…RESPONDENTS

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(BY SRI. DAYANAND S. PATIL, ADVOCATE FOR R1 TO R5; R7 SERVED AND R8 SERVED; VIDE ORDER DATED 09.06.16, NOTICE TO R6 IS DISPENSED WITH)

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THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED 4.3.2013 PASSED IN R.A.NO.381/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, SAGARA, DISMISSING THE APPEAL AND UPHOLDING THE JUDGMENT AND DECREE DATED 31.8.2009 PASSED IN OS.NO.20/2002 ON THE FILE OF THE CIVIL JUDGE(SR.DN) SAGAR.

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

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant,

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challenging the judgment and decree 04.03.2013, passed in R.A.No.381/2009 by the learned Fast Track Court and Additional, MACT at Sagar, confirming the judgment and preliminary decree dated 31.08.2009, passed in O.S.No.20/2002 by the learned Civil Judge (Sr. Dn.), Sagar.

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For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was the plaintiff, and the respondents were the defendants.

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Brief facts, leading rise to the filing of this appeal are as follows:

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The plaintiff filed a suit against the defendants for partition and separate possession of aN 1/6^th share in the suit schedule properties. It is the case of the plaintiff that the plaintiff and defendant No.9 are the sons of defendant

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No.7. Defendant No.2, and defendant No.7, are the son of

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the late Nagappa Gowda. Defendant No.1 Kollamma, who is the wife of deceased Nagappa Gowda, and defendant No.8 is the wife of defendant No.7. Defendant Nos.3 to 6 are the children of defendant No.2. Defendant Nos.7 and 8

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are the father and mother of the plaintiff and Defendant No.9. It is the case of the plaintiff that, the plaintiff and defendant Nos.1 to 9 are members of a Hindu Undivided family and his father was in good terms with his brother i.e. Defendant No.2, and the suit schedule properties are undivided joint family properties of himself and the defendants, and they are the ancestral properties. It is contended that defendant No.2 colluding with his father, defendant No.7, entered into a partition i.e., Hissa Pathra under a registered partition deed dated 24.03.1995 under which defendant No.7 was paid a sum of Rs.1,80,000/- in cash, and released his share and right over the suit schedule properties. The partition was not in accordance with law. It is contended that at the time of releasing the

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share under the said document dated 24.03.1995 the plaintiff and defendant No.9 were minors, and they were coparceners entitled to a share by birth, and their interest could not be released by their father to the detriment of their interest colluding with defendant No.2 especially, when the plaintiff and defendant No.9 were minors. The plaintiff’s rights are not at all protected by defendant No.7. The market value of the suit schedule properties at the time of entering into the partition deed dated 24.03.1995

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was much more than what was given to the share of defendant No.7. The alleged partition deed dated 24.03.1995 is an unequal distribution of properties. It is also contended that his father, defendant No.7, was addicted to bad habits, and executed the partition deed dated 24.03.1995, and the alleged registered partition deed dated 24.03.1995 is not binding on the plaintiff. Hence, the plaintiff demanded a partition and separate possession, but the defendants refused to effect the partition. Hence, a cause of action arose for the plaintiff to

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file a suit for reopening of the partition. Accordingly, prays to decree the suit.

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3.1. Despite service of summons, defendant Nos.7 to 9 remained unrepresented, and they were placed exparte. Defendant No.1 died during the pendency of the suit. Defendant Nos.2 and 6 were treated as her legal heirs. Defendant No.2 alone filed a written statement, and defendant Nos.3 to 6 filed a memo adopting the written statement filed by defendant No.2.

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3.2. Defendant No.2 filed a written statement

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admitting the relationship between the parties to the petition and denied the other averments made in the plaint. It is contended that the partition was effected between defendant No.7, and his brother under a registered partition deed dated 24.03.1995, and defendant No.7 accepted a sum of Rs.1,80,000/- towards his share. It is contended that the marriage of defendant No.7 was performed with defendant No.8 in 1972. It is also

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contended that the amount of Rs.1,80,000/was equivalent to that of the market value of the suit properties allotted to the other brothers. Hence, it is contended that the partition effected between defendant No.7 and defendant No.2 is equal. Further, defendant No.2 has paid the amount of Rs.1,80,000/- to defendant No.7 and defendant No.7 has accepted the said amount. It is contended that defendant No.7 did not challenge the registered partition deed effected between him and his brother. Hence, on these grounds, pray to dismiss the suit.

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3.3. The Trial Court, based on the aforementioned

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pleadings, recasted the issues:

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1) Whether the plaintiff proves that the partition took place in the family dated 24.03.1995 is not in accordance with law and not binding his right, interest over the suit schedule properties?

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2) Whether the plaintiff further proves that his father – defendant No.7 has not at all utilized Rs.1,80,000/-, received by him, towards the share of his branch, over the suit schedule properties, for his benefit, since he was a minor?

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3) Whether the plaintiff is entitled for 1/6^th share out of the suit schedule properties?

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4) What order or decree?

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3.4. The plaintiff, to substantiate his case, examined

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himself as PW.1, examined 2 witnesses as PW.2 and PW.3, and marked 13 documents as Exs.P1 to P13. In rebuttal, defendant No.2 was examined as DW.1, 3 witnesses were examined as DW.2 to DW.4, and 14 documents were marked as Exs.D1 to D14. The trial Court, after recording the evidence, hearing both sides, after assessing the verbal and documentary evidence, answered recasted issue Nos.1 to 3 in the negative, and recasted issue No.4 as per the final order. The trial court, dismissed the suit of the plaintiff vide judgment dated 31.08.2009.

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3.5. The plaintiff, aggrieved by the judgment and

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decree passed in O.S.No.20/2002, preferred an appeal in R.A.No.381/2009 on the file of the Fast Track Court and Additional MACT, Sagar. The First Appellate Court, after

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hearing the learned counsel for the parties, framed the

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following points for consideration:

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C¦Ã®ÄzÁgÀgÀÄ ¢£ÁAPÀ 24.03.1995 gÀAzÀÄ ªÀiÁrzÀ ¥Á®Ä C¸ÀªÀÄAd¸ÀªÁVzÉAiÉÄAzÀÄ C¦Ã®ÄzÁgÀgÀ ºÀPÀÌ£ÀÄß PÁ¬ÄÝj¹®èªÉAzÀÄ, D PÁgÀt PÉ¼À £ÁåAiÀiÁ®AiÀÄªÀÅ ªÀiÁrzÀ wÃ¥ÀÄð PÁ£ÀÆ£ÀÄ¨Á»gÀªÁVzÉAiÉÄAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀÄªÀgÉÃ?

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2)C¦Ã®ÄzÁgÀgÀÄ PÉ¼À £ÁåAiÀiÁ®AiÀÄzÀ wÃ¥ÀÄð C¸ÀªÀÄAd¸ÀªÁVzÉAiÉÄAzÀÄ C¦Ã®Ä £ÁåAiÀiÁ®AiÀÄªÀÅ PÉ¼À £ÁåAiÀiÁ®AiÀÄzÀ wÃ¥Àð£ÀÄß vÀ½î ºÁQ ºÀ¸ÀÛPÉëÃ¥À ªÀiÁqÀ§ºÀÄzÉAzÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀÄªÀgÉÃ?

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3)K£ÀÄ DzÉÃ±À?

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3.6. The First Appellate Court, after reassessing the

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verbal and documentary evidence, answered point No.1 in the negative and point No.2 as per the final order. The appeal was dismissed vide judgment dated 04.03.2013, confirming the judgment and decree passed by the Trial Court in O.S.No.20/2002.

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3.7. The plaintiff, aggrieved by the impugned

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judgments, filed this Regular Second Appeal.

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This Court, on 30.04.2014, admitted the appeal

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to consider the following substantial question of law :

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“Whether in the light of the admitted deed of partition dated 24.03.1995 Ex.P1, where under 2 acres of garden land and 5 acres 36 guntas of wet land in Sy.No.18 valued at ₹21,500/- fell to the share of 2nd defendant, and 36 guntas in Sy.No.18 valued at ₹137/- to the share of 1st defendant mother, while ₹1,80,000/- was paid to the 7th defendant in lieu of immovable property, and stamp duty paid on registration in accordance with the Article 39 to the first schedule to the Karnataka Stamp Act, 1957, the trial Court recorded perverse findings to declare that the said partition was not liable to be reopened on grounds of unequity, to dismiss the suit and the Lower Appellate Court following suit to dismiss the appeal.”

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Heard the arguments of the learned counsel for

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the plaintiffs, and the learned counsel for defendant No.2.

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Learned counsel for the plaintiff submits that defendant No.7 is not in good terms with the plaintiff. He

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submits that defendant No.7 has not protected the interest of the minors i.e., the plaintiff and defendant No.9. He submits that the market value of the suit schedule properties was much more than the amount of Rs.1,80,000/- which was paid to defendant No.7. The said partition is unequal and unjust and not in the interest of minors.

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To buttress his arguments he has placed reliance on the judgments of the Hon’ble Apex Court in the case of Ratnam Chettiar and others Vs. S.M.Kuppuswamy Chettiar and others reported in AIR 1976 SC 1 , Sukhrani (dead) by LRs and others Vs. Hari Shanker and others reported in AIR 1979 SC

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1436 , Bishnudeo Narain and another Vs. Seogeni Rai and others reported in AIR 1951 SC 280 and

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U.Manjunath Rao Vs. U.Chandrashekar reported in

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AIR 2017 SC 3591 . He submits that both the courts below have not adequately appreciated that defendant

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No.7 has not protected the interest of the minor plaintiff. Hence, on these grounds, he prays to allow the appeal.

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Per contra, the learned counsel for defendant No.2 submits that the plaintiff has pleaded that the partition effected on 24.03.1995 is unjust, unfair and not in the interest of the plaintiff. The plaintiff has not produced any records to establish that the partition effected between defendant Nos.2 and 7 on 24.03.1995 is unjust and unfair. He submits that defendant No.7 has filed the present suit through the plaintiff. He submits that as of the date of execution of the registered partition deed dated 24.03.1995, defendant No.7 has taken a sum of Rs.1,80,000/- in lieu of his share in the suit properties and relinquished his right in the suit properties. Considering the market value of the suit properties, an amount of amount of Rs.1,80,000/- is paid and the partition effected between defendant Nos.2, 7 and the mother is just and proper. He further submits that defendant No.7 neither filed a written statement nor entered the witness box. The

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suit filed by the plaintiff is collusive. He submits that the

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trial Court as well as the First Appellate Court, have rightly passed the impugned judgments. Further, he submits that the decisions relied upon by the learned counsel for the plaintiff do not apply to the case on hand. Hence, on these grounds, he prays to dismiss the appeal.

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Perused the records, and considered the submissions of learned counsel for the parties.

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Reg. Substantial question of law : The

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plaintiff ,to prove that the suit schedule properties are the

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joint family and ancestral properties of the plaintiff and the defendants, examined himself as PW1 and reiterated the averments made in the plaint in the examination in chief and produced the documents. Ex.P1 is a certified copy of the partition deed which discloses that the partition was effected between defendant No.2 and his brother i.e., defendant No.7 and in the said partition, defendant No.7 has taken an amount of Rs.1,80,000/- towards his share,

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in the suit properties. Further, Ex.P2 is a mutation register extract which discloses that based on Ex.P1 the names of the respective parties were entered in the revenue records. Ex.P3 is the RTC extract of the land bearing Sy.No.18 standing in the name of defendant No.2, Ex.P4 is the demand register extract which discloses that the said properties stand in the name of defendant No.2, Ex.P5 is the copy of a legal notice issued to the defendants by the plaintiff on 12.08.1999 calling upon the defendants to reopen the partition effected on 24.03.1995, demanding partition and separate possession, Ex.P6 is the reply notice to Ex.P5, Ex.P7 is the transfer certificate of the plaintiff which discloses that the date of birth of the plaintiff is 28.02.1981, Ex.P8 is the certificate issued by the profession tax officer. Ex.P9 is the Registration certificate issued by the Commercial tax department. Exs.P10 and P11 are the bank statement from the Co-operative Bank, Ex.P12 is the loan account statement. Ex.P13 is the invitation card of House warming ceremony of

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Nagappagouda. During the course of cross-examination, it was suggested to PW.1 that the partition was effected between defendant Nos.2 and 7, and defendant No.7 had received a sum of Rs.1,80,000/- towards his share, and he had relinquished his right to the immovable properties. PW1 pleads ignorance to the said suggestion. It is also elicited that the market value of his father’s share in the suit properties was about Rs.10 lakhs, during 1995. The plaintiff, to prove that a partition effected between defendant Nos.2 and 7 is unequal, and unjust and the suit schedule properties are joint and ancestral properties, also examined two witnesses, PW.2 and PW.3, who deposed in the same terms of PW.1.

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In rebuttal, defendant No.2 examined himself as DW.1, and he deposed that the partition was effected between him, his brother i.e. defendant No.7 and their mother and in the said partition, defendant No.7 had accepted an amount of Rs.1,80,000/- towards his share in

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the suit properties and the properties were divided in between him i.e., defendant No.2 and his mother. The defendant also examined 3 witnesses as DW.2 to DW.4 who spoke about the said partition. In the said partition, defendant No.7 i.e. the plaintiffs father accepted an amount of Rs.1,80,000/- towards his share.

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From the perusal of the records, it is an admitted fact that the suit schedule properties are the ancestral and joint family properties of the plaintiff and the defendants. The partition was effected between defendant No.2, 7 and their mother, and defendant Nos.2, 7 and their mother executed a registered partition deed dated 24.03.1995. Defendant No.7 had accepted a sum of Rs.1,80,000/- and further, the valuation of Rs.1,80,000/-

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is not the exact valuation of the properties as on the date of the said partition. The plaintiff has filed a suit for a declaration and reopening of the partition. The burden is on the plaintiff to establish that the exact valuation of the properties, as on the date of partition, is more than, what

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is mentioned in Ex.P1, i.e., a certified copy of the registered partition deed. The plaintiff, except oral evidence, has not produced any records to establish that the amount paid to defendant No.7 was less than that of the market value of the suit schedule properties as on the

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date of execution of Ex.P1. The trial Court, considering Ex.P1 has recorded its finding that the partition effected between defendant Nos.2, 7 and their mother is just and proper, and is not unequal, and unjust.

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Learned counsel for the plaintiff has placed a reliance on the judgment of the Hon’ble Apex Court in the case of Ratnam Chettiar and others Vs.

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S.M.Kuppuswamy Chettiar and others reported in

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AIR 1976 SC 1 , wherein, it was held that, when the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minors also, if it is done in good faith and in

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a bona fide manner keeping into account the interests of the minors. Admittedly, in the instant case, the plaintiff

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except contending that the plaintiff is not in good terms with defendant No.7, and has not produced any records to establish that his father has not taken into account the interest of the plaintiff. The plaintiff has failed to establish that the plaintiff is not in good relation with defendant No.7. Defendant No.7 has taken into account the interest of the minor i.e., the plaintiff.

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The judgment of the Hon’ble Apex Court in the case of Sukhrani (Dead) By L.Rs. & Ors vs Hari Shanker & Others reported in AIR 1979 SC 1436 , wherein it was held that even though there was no fraud, misrepresentation or undue influence, a partition could be reopened at the instance of a minor coparcener, despite the fact that his branch was represented by his father at the partition, if the partition was unfair or prejudicial to the interest of the minor. It was also held that the entire partition need not be reopened if the partition was unfair in regard to a distinct and separable part of the scheme of

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partition. In such an event, the reopening of the partition could be suitably circumscribed.

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Admittedly, in the instant case, as observed above, the plaintiff, except pleading that the partition is unequal has not pleaded that defendant Nos.2 and 7 have played a fraud, misrepresentation or undue influence and executed a partition deed.

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The decision relied upon, by the learned counsel for the plaintiff of the Hon’ble Apex Court, in the case of

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Bishundeo Narain and another Vs. Seogeni Rai and

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others reported in AIR 1951 SC 280 , wherein it was held that It is well established that a minor can sue for partition and obtain a decree if his next friend can show that it is for the minor's benefit. It is also beyond dispute that an adult coparcener can enforce a partition by suit even when there are minors. Even without a suit, there can be a partition between members of a joint family when one of the members is a minor. In the case of such lastly

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mentioned partitions, where a minor can never be able to

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consent to the same in law, if a minor on attaining majority is able to show that the division was unfair and unjust, the Court will certainly set it aside.

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Defendant No.8 being the plaintiffs mother, immediately after executing a registered petition deed on 24.03.1995, could have filed a suit. However the plaintiffs have filed a suit in year 2002 i.e., after the lapse of 7 years from the date of execution of the registered partition deed dated 24.03.1995. The judgments relied upon by the learned counsel for the plaintiff, do not apply to the case on hand.

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From the perusal of Ex.P1 i.e., the registered partition deed discloses that 2 acres of garden land and 5 acres 36 guntas of wet land in Sy.No.18 valued at Rs.21,500/- fell to the share of defendant No.2 and 36 guntas in Sy.No.18 valued at Rs.137/- to the share of 1^st defendant i.e., the mother, while Rs.1,80,000/- was paid

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to defendant No.7 in lieu of the immovable properties and the parties to the instrument have paid the stamp duty.

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As observed above the plaintiff has failed to establish that the partition effected between defendant Nos.2, 7 and their mother is unfair and unjust. Hence, the plaintiff cannot seek for the reopening of the partition on the grounds of inequity, and that is was unequal and unjust. Both the courts below have concurrently recorded the finding of facts that, as of the date of filing the suit, the suit schedule properties were not the joint family and ancestral properties of the plaintiff and the defendants, and a partition was already effected as per Ex.P1 and rightly passed the impugned judgments. Hence, I do not find any error in the impugned judgments.

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In view of the above discussion, I answer the substantial question of law in the negative.

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