Dismissed¶61

Manjunath Govinda Nayak v. Nagesh Govinda Nayak

Partition suit – Unregistered memorandum of partition – Admissibility – Substantial question of law

Karnataka HC25 Nov 2025RSA/632/2024

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Case brief

AI extract

What is this about?

High Court of Karnataka at Bengaluru; RSA No. 632 of 2024 (DEC/PAR); decided 25.11.2025 by Justice H.P.SANDESH; second appeal against concurrent findings in O.S.No.5/2011 (II Additional Civil Judge and JMFC, Kundapura) and R.A.No.37/2018 (Senior Civil Judge, Kundapura). Key terms: oral partition; unregistered memorandum of partition Ex.P.5 dated 24.05.1984; admissibility of unregistered document; ancestral and joint family property; impleader of sisters under Order 1 Rule 10 CPC; 1/4th share decree; no substantial question of law; Section 100 CPC; second appeal dismissed.

What did the court decide?

None; the second appeal was dismissed and any pending interlocutory applications were disposed of as not surviving for consideration. ¶61

Manjunath Govinda Nayak Vs Nagesh Govinda Nayak — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

None; the second appeal was dismissed and any pending interlocutory applications were disposed of as not surviving for consideration.

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Issue for consideration

Whether the plaintiff proved an oral partition with defendant No.1, recorded in the unregistered memorandum of partition Ex.P.5 dated 24.05.1984, entitling him to exclusive enjoyment of the properties allotted to him rather than a 1/4th share. +2 more

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Court's answer

The concurrent findings of the Trial Court and the First Appellate Court - that the suit properties are ancestral and joint family properties of the parties, that there was no division, and that Ex.P.5 is not a memorandum of partition - were arrived at on due consideration of the nature of the document and the oral and documentary evidence, and call for no interference.

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Ratio / Principle

Ex.P.5, the alleged memorandum of partition relied upon by the plaintiff, is an unregistered document and is inadmissible; the plaintiff's claim of partition founded on it cannot stand.

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Key takeaways

No substantial question of law arises for consideration; the second appeal is not a fit case for admission under Section 100 CPC, both courts below having duly considered the factual aspects and the nature of the document Ex.P.5.ratio¶54

Detailed headnote1 paragraphs

Partition suit - Unregistered memorandum of partition - Admissibility - Substantial question of law - The plaintiff and defendant No.1, sons of late Govinda Nayak, pleaded an oral partition recorded in an unregistered written memorandum of partition (Ex.P.5) dated 24.05.1984; the sisters (defendants Nos.2 and 3), impleaded under Order 1 Rule 10 CPC, claimed division into four shares. The Trial Court held the suit properties ancestral and joint family properties with no division, discarded Ex.P.5 as unregistered, and decreed a 1/4th share to the plaintiff; the First Appellate Court confirmed, noting the absence of recitals of an antecedent oral partition and that the sisters were left out without share. On the second appeal under Section 100 CPC, the High Court held Ex.P.5 unregistered and inadmissible, found no ground to admit the appeal or frame a substantive question of law, upheld the concurrent findings, and dismissed the appeal.

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NC: 2025:KHC:48874 RSA No. 632 of 2024

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF NOVEMBER, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO.632 OF 2024 (DEC/PAR)

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BETWEEN:

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MANJUNATH GOVINDA NAYAK AGED ABOUT 70 YEARS S/O. LATE GOVINDA NAYAK RESIDENT OF 167, 1^ST ‘B’ CROSS, II PHASE, 4^TH BLOCK, BSK III STAGE BENGALURU-560 035.

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…APPELLANT

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(BY SMT. PUSHPALATHA G., ADVOCATE FOR SRI. VIVEK HOLLA, HOLLA AND HOLLA, ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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NAGESH GOVINDA NAYAK AGED ABOUT 71 YEARS S/O. LATE GOVINDA NAYAK TEACHER BEHIND MAHAKALI TEMPLE BANKESHWARA YADTHARE VILLAGE BYNDOOR TOWN AND POST KUNDAPURA TALUK.

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SMT. SHARADA W/O DANAYYANA GOVINDA SHEREGARA

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AGE: MAJOR RESIDING AT PADUVARI VILLAGE AND POST KUNDAPURA TALUK.

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NC: 2025:KHC:48874 RSA No. 632 of 2024

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HC-KAR

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SMT. SUSHEELA AGED ABOUT 71 YEARS W/O. K.H. SHANKAR RETIRED EXCISE GUARD RESIDING AT PADUVARI VILLAGE AND POST KUNDAPURA TALUK.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 19.12.2023 PASSED IN R.A.NO.37/2018 ON THE FILE OF SENIOR CIVIL JUDGE, KUNDAPURA., DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 01.10.2018 PASSED IN O.S.NO.5/2011 ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC, KUNDAPURA.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission. Heard the learned counsel for the appellant.

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This second appeal is filed against the concurrent finding. The factual matrix of case of plaintiff/appellant before the Trial Court that suit annexure-I properties originally belongs to the joint family of the plaintiff and defendants on lease hold right. The father of the plaintiff and defendants by name late

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HC-KAR

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Govinda Anantha Nayak was the Manager of the family and on that capacity, he has applied for grant of occupancy right of the annexure-I properties and the same was granted in his name. The plaintiff and defendant No.1 only divided the suit properties and later recorded the said oral partition into written memorandum of partition on 24.05.1984. Since then, the plaintiff and 1^st defendant are

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in possession and enjoyment of their properties. For effective and better title and right, the plaintiff realized that a regular registered partition deed is required to be entered in between him and the 1^st defendant. The plaintiff requested the 1^st defendant, but the 1^st defendant protracting the actual execution of the partition deed. Hence, the suit is filed. In pursuance of the suit summons issued by the Court, the defendant No.1 has appeared and filed a written statement. In the written statement he contended that suit properties were inherited by Govinda Nayak and the said Govinda Nayak died intestate leaving behind his sons and daughters. Hence, his daughters are

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NC: 2025:KHC:48874 RSA No. 632 of 2024

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HC-KAR

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the necessary parties to the suit and it is absolutely false that there was any oral partition in between him and the plaintiff. Hence, the 1^st defendant prayed to dismiss the suit. During the pendency of the suit, an application is filed under Order 1 Rule 10 of CPC to implead the defendant Nos.2 and 3 to the suit and they have been impleaded as parties to the proceedings and they also disputed the very claim made in the plaint and claims that it should be divided into 4 shares.

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The Trial Court having considered the pleadings, framed the issues and allowed the parties to lead evidence. The plaintiff only relies upon the document Ex.P.5 and the same is disputed by defendant No.1 and he categorically contend that there was no such partition. Though, it is contended that earlier there was an oral partition and the same is reduced into writing as per Ex.P.5 and the same is also not a registered document. The plaintiff also not disputes the fact that the property was allotted in favour of his father and also not disputes

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HC-KAR

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the relationship between the plaintiff and defendant Nos.1

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to 3 and they are the children of their father. Even the Trial Court also considering the material on record in paragraph No.14 extracted the evidence of P.W.1 and hence, comes to the conclusion that on the basis of averments of the pleadings, it is clear that suit annexure-I properties are ancestral and joint family properties of the parties and there was no any division and hence, not accepted the contention of the plaintiff and the document Ex.P.5 which has been relied upon by the plaintiff is also not a registered document and hence, granted the relief of 1/4^th share.

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Being aggrieved by the said judgment and decree, an appeal is filed before the Appellate Court and the First Appellate Court having re-assessed the material available on record and also the grounds which have been urged in the appeal memo, formulated the point whether the Trial Court has committed an error in decreeing the suit and whether it requires any interference. The First

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HC-KAR

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Appellate Court also taking into note of particularly the document Ex.P.5 and the same is an unregistered document and makes it clear that on the date of agreement at Ex.P.5, defendant No.1 and plaintiff were in joint possession and having undivided interest over the properties acquired by his father. Nothing to disclose in the recitals of the said Ex.P.5 that already oral partition was took place on any particular date and in terms of the said oral partition, the parties in the family have entered into memorandum of partition in terms of the oral partition. Therefore, in the absence of said recitals and essential ingredients in the pleadings, it cannot be said that Ex.P.5 is the memorandum of partition and also taken note of admissibility of Ex.P.5 and also taken note of that under Ex.P.5, the sisters i.e., defendant Nos.2 and 3 were left out and no share was given and the same is discussed in paragraph No.15 and hence, confirmed the judgment of the Trial Court.

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NC: 2025:KHC:48874 RSA No. 632 of 2024

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HC-KAR

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Being aggrieved by the concurrent finding, the

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present second appeal is filed. The main contention of the counsel appearing for the appellant in this case is that both the Courts have misread the evidence and same led miscarriage of justice. The counsel would vehemently contend that lower Courts misconstrued and misinterpreted the memorandum of partition at Ex.P.5 and findings of lower Court are appreciated by non consideration of relevant material particularly document of Ex.P.5 and there was a oral partition between the appellant/plaintiff and 1^st respondent and the same was reduced into writing and the very approach of both the Courts is erroneous.

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Having heard the appellant’s counsel and also on perusal of the pleadings and reasoning of the Trial Court and Appellate Court, no dispute with regard to the nature of the property is concerned and only counsel for appellant/plaintiff would vehemently contend that there was a partition between the plaintiff and 1^st defendant,

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HC-KAR

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but, the defendant Nos.1 and 2 are not the parties to the said document and no share was given to them. When such being the case and the document is also an unregistered document and the same is inadmissible. Hence, Trial Court and First Appellate Court taken note of both the nature of the document as well as oral and documentary evidence available on record and Appellate Court also having re-assessed the material, particularly considering the nature of document of Ex.P.5 and also the claim made by the appellant/plaintiff is also based on the Ex.P.5 and when the said document is not admissible document and the same is not registered, I do not find any ground to admit and frame substantive question of law. The Trial Court and First Appellate Court taken note of both factual aspects and also the question of law considering the nature of document of Ex.P.5. Hence, not a case to invoke Section 100 of CPC.

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