Hussainpasha S/O Kashimsab Gachinamahal Vs Imamkashim S/O Saheblal Gachinmahal and Ors.

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NC: 2025:KHC-K:7877 RSA No. 7256 of 2012

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA

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KALABURAGI BENCH

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DATED THIS THE 17^TH DAY OF DECEMBER, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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REGULAR SECOND APPEAL NO.7256 OF 2012 (PAR)

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BETWEEN:

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HUSSAINPASHA

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S/O KASHIMSAB GACHINAMAHAL, AGE: 80 YEARS, OCC: AGRICULTURE, R/O AINAPUR TANDA, TQ: DIST: BIJAPUR-586108.

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DEAD BY LRS

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A) MANSOOR BEE W/O LATE HUSSAIN PASHA GACHINMAHAL, AGE: 85 YEARS, OCC: HOUSEHOLD.

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B) MAHEBOOB HUSSAIN PASHA S/O LATE HUSSAIN PASHA GACHINMAHAL, AGE: 65 YEARS, OCC: BUSINESS,

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Digitally signed by AL BHAGYA Location: HIGH COURT OF KARNATAKA

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C) IBRAHIM SAB S/O LATE HUSSAIN PASHA GACHINMAHAL,

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AGE: 63 YEARS, OCC: BUSINESS.

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D) ISMAIL HUSSAIN S/O LATE HUSSAIN PASHA GACHINMAHAL. AGE: 60 YEARS, OCC: BUSINESS.

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E) ABDUL RAZAK S/O LATE HUSSAIN PASHA GACHINMAHAL,

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AGE: 50 YEARS, OCC: BUSINESS.

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NC: 2025:KHC-K:7877 RSA No. 7256 of 2012

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F) HAJI LAL S/O LATE HUSSAIN PASHA GACHINMAHAL, AGE: 54 YEARS, OCC: BUSINESS,

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G) KHAJA SAB S/O LATE HUSSAIN PASHA GACHINMAHAL, AGE: 52 YEARS, OCC: BUSINESS, ALL R/O AINAPUR TANDA,

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TQ: DIST: VIJAYAPURA

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…APPELLANTS

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(BY SRI. SHIVAKUMAR KALLOOR, ADVOCATE FOR A1(A) TO A1(G))

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AND:

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IMAMKASHIM S/O SAHEBLAL GACHINMAHAL, AGE: 55 YEARS, OCC: AGRICULTURE, R/O AINAPUR TANDA, TQ: & DIST: BIJAPUR-586108.

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HAJARATSAB S/O SAHEBLAL GACHINMAHAL, AGE: 53 YEARS, OCC: AGRICULTURE, R/O AINAPUR TANDA, TQ: & DIST: BIJAPUR-586108.

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NANNUSAHEB S/O SAHEBLAL GACHINMAHAL, AGE: 51 YEARS, OCC: AGRICULTURE, R/O AINAPUR TANDA, TQ: & DIST: BIJAPUR-586108.

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GAFOORSAB S/O SAHEBLAL GACHINMAHAL, AGE: 49 YEARS, OCC: AGRICULTURE, R/O AINAPUR TANDA, TQ: & DIST: BIJAPUR-586108.

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RASULSAB S/O SAHEBLAL GACHINMAHAL, AGE: 47 YEARS, OCC: AGRICULTURE, R/O AINAPUR TANDA, TQ: & DIST: BIJAPUR-586108.

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NC: 2025:KHC-K:7877 RSA No. 7256 of 2012

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HC-KAR

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UMARSAB S/O SAHEBLAL GACHINMAHAL, AGE: YEARS, OCC: DOCTOR, R/O AINAPUR TANDA, TQ: & DIST: BIJAPUR-586108.

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…RESPONDENTS

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(BY SRI AMEET KUMAR DESHPANDE, SENIOR ADVOCATE FOR SRI CHAITANYAKUMAR C. M., ADVOCATE FOR R1 TO R6)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, PRAYING TO CALL FOR THE RECORDS AND ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 04.08.2012, PASSED BY THE FAST TRACK COURT-I, BIJAPUR, IN R.A.NO.152/2011.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 02.12.2025 COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’ THIS DAY, THE COURT DELIVERED THE FOLLOWING.

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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CAV JUDGMENT

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The plaintiff is in second appeal challenging the judgment rendered by the First Appellate Court in R.A.No.152/2011 which has reversed the decree of the Trial Court and dismissed the suit for partition. The First

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NC: 2025:KHC-K:7877 RSA No. 7256 of 2012

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HC-KAR

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Appellate Court held that the suit instituted by plaintiff in the year 2008 is hopelessly barred by limitation.

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For the sake of convenience, the parties are referred to as per their rank before the Trial Court.

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The family tree reads as under:

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Kashimsab (died)

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Saheblal (died) Hussainpasha (Plaintiff)

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Imamkashim, Hajaratsab, Nannusaheb, Gafoorsab, Rasulsab Umarsab (D-1) (D-2) (D-3) (D-4) (D-5) (D-6)

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Facts leading to the case are as under:

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Suit schedule property originally belonged to

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one Kashimsab, the father of the plaintiff and also of late Saheblal, who is the father of defendant Nos.1 to 6. After

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the death of Kashimsab, the names of both his sons, Hussainpasha (plaintiff) and his elder brother Saheblal

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came to be jointly mutated in respect of the suit land

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bearing Sy.No.67, along with other ancestral lands.

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The plaintiff instituted the present suit

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contending that he and defendant Nos.1 to 6 constituted tenants-in-common in respect of the suit property, which was their father’s ancestral holding. According to the plaintiff, being an innocent and illiterate person, his brother Saheblal manipulated the revenue records and brought about a Pokal entry in M.E. No.2138 dated 11.09.1992, falsely showing that the plaintiff had relinquished his half share in Sy.No.67. The plaintiff asserted that he and defendant Nos.1 to 6 were jointly cultivating the suit land till the date of suit and that the said mutation entry was not binding upon him.

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It was further pleaded that after the death of Saheblal, defendant Nos.1 to 6 managed to secure a subsequent mutation exclusively in their favour under M.E. No.3011 dated 14.02.2003. Since the defendants were

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attempting to alienate the suit land on the strength of the said mutation entry, the plaintiff filed O.S. No.14/2008 seeking declaration and consequential reliefs, specifically disputing any relinquishment of his rights in the suit property.

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Upon service of summons, the defendants

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entered appearance and filed their written statement stoutly denying the plaint averments. Defendant No.1 filed the written statement and defendant Nos.2 to 6 adopted the same. The defence set up was that the suit had been filed only after the death of their father and that the plaintiff had never questioned M.E. No.2138 dated 11.09.1992, which reflected a partition mutually effected

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in 1992, whereunder the plaintiff had relinquished his share in Sy.No.67 in consideration of receiving a larger extent in Sy.No.66. It was further contended that the plaintiff had himself submitted a Waradi before the Tahsildar requesting deletion of his name from Sy.No.67, pursuant to which the name of Saheblal alone was

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restored. The defendants also set up limitation, contending that the suit filed in 2008 challenging the 1992 mutation was wholly barred. They asserted exclusive possession since 1992 and further pleaded that the remaining properties held jointly were partitioned in 1998. The suit was therefore described as frivolous and liable for dismissal.

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On the basis of the rival pleadings, the Trial Court framed issues and the parties led both oral and documentary evidence. The plaintiff examined himself as P.W.1 and an independent witness as P.W.2 and produced six documents. Defendant No.1 entered the witness box as D.W.1 and one more witness was examined as D.W.2, and they relied upon 45 documents.

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The Trial Court answered issue Nos.1 to 3 in the affirmative and issue No.5 partly in the affirmative. While partly allowing issue No.5, the Trial Court held that the plea of partition set up by the defendants under an

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unregistered relinquishment deed could not be accepted,

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as the document was compulsorily registrable.

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The Trial Court further drew an adverse inference against the defendants while considering Exhibit D42, an unregistered partition deed relating to Sy.No.66, observing that if a genuine partition between the brothers had in fact occurred, the same should have found reflection in Exhibit D42. Having discarded the unregistered relinquishment deed at Exhibit D41 as inadmissible, the Trial Court decreed the suit and granted the plaintiff his share.

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Aggrieved, the defendants preferred R.A. No.152/2011. The First Appellate Court reversed the decree of the Trial Court, holding that the partition of 1992 stood established through contemporaneous revenue

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entries and by proving the signatures of the plaintiff on Exhibits D41 and D42. The Appellate Court found that the plaintiff had received an advantageous larger share of 13

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NC: 2025:KHC-K:7877 RSA No. 7256 of 2012

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acres 23 guntas in Sy.No.66 under the unregistered partition. It was held that the plaintiff had lost possession in 1992 itself and therefore, the suit filed in 2008 was barred under Article 65 of the Limitation Act, 1963. The Appellate Court also held that the unregistered relinquishment deed (Exhibit D41) could be looked into for collateral purposes, namely, to understand the nature of possession and to explain the manner in which the mutation entries came to be made.

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This Court, vide order dated 27.06.2013, admitted the second appeal on the following substantial question of law:

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“Whether the lower Appellate Court was justified in reversing the finding of the trial Court in decreeing the suit for declaration, partition and separate possession of half share of the plaintiff, so as to dismiss the said suit?”

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Heard the learned counsel for the plaintiff and learned Senior Counsel appearing for the defendants. Perused records.

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Finding on substantial question of law.

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Under the unregistered partition deed marked as Exhibit D42, the plaintiff was allotted 13 acres 23 guntas in Survey No.66, whereas the defendants’ father, late Saheblal, received only 6 acres 19 guntas. On the very same day, a contemporaneous document styled as a relinquishment deed, marked as Exhibit D41, also came into existence as part of the family arrangement of 1992. Thus, the evidence on record unmistakably demonstrates that the plaintiff received a substantially larger and advantageous share under the unregistered partition. In these circumstances, Section 115 of the Indian Evidence Act squarely applies, and the plaintiff is estopped from disputing the 1992 family arrangement or denying that Survey No.67 was also the subject matter of partition. Though Exhibit D41 is titled a relinquishment deed, its true

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character, read in the context of Exhibit D42 and other surrounding circumstances, is that of a composite partition arrangement. The plaintiff, having accepted the benefits of this arrangement, cannot now be permitted to approbate and reprobate. He cannot take advantage of the very transaction by accepting a larger share in Survey No.66, and decades later deny the corresponding burden arising out of the same arrangement in respect of Survey No.67.

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Even assuming that Exhibit D41, being an unregistered document, cannot be relied upon to create, declare or extinguish rights in immovable property, the same is still admissible for collateral purposes such as explaining the nature of possession, the manner in which the revenue entries came to be altered, and the common intention of the parties at the time of partition. When Exhibit D41 is read together with Exhibit D43, a joint Waradi submitted to the Tahsildar, it provides a complete and cogent explanation as to why the plaintiff’s name was deleted from the revenue records pertaining to the suit

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land and why exclusive possession came to be recorded in

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favour of Saheblal from 1992 onwards. The contemporaneity and interconnected nature of these documents form an indivisible composite transaction indicating partition among two brothers in survey no.66 as well as survey no.67.

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It is equally significant to note, plaintiff’s bare denial of the unregistered relinquishment deed and the joint Waradi. The documentary record, therefore, clearly establishes that the plaintiff consciously accepted 13 acres 23 guntas in Survey No.66 while permitting exclusive mutation in favour of Saheblal in respect of Survey No.67, and continued to acquiesce in this state of affairs without protest for more than 16 years. His silence throughout this long period, and his attempt to reopen the settled family arrangement only after the death of his brother, Saheblal (father of Defendants) amounts to clear acquiescence, waiver, and estoppel. Courts have consistently held that a party who has accepted and enjoyed the benefits of a

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family arrangement for several years cannot later seek to unsettle the same merely because circumstances have changed.

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On deeper examination of cross-examination of

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plaintiff he has gone to the extent of disputing the partition in respect of Sy.No.66 also, but while cross of defendant as DW1. DW1 is exhaustively cross- examined regarding partition in Sy.66 but at the same time disputing partition in Sy.67 by way of relinquishment deed.

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Furthermore, the plaintiff does not dispute the subsequent 1998 partition inter se the family members in the left over properties, yet even in this later adjustment he did not assert any claim over the suit property. This further reinforces the defendants’ case that the plaintiff had unequivocally relinquished his rights in Survey No.67

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as early as 1992. Having voluntarily accepted a larger share in Survey No.66, executed a relinquishment concerning Survey No.67, and permitted the revenue

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entries to stand unchallenged for more than a decade and a half, the plaintiff cannot now be permitted to resurrect stale claims after the demise of his elder brother.

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The First Appellate Court has meticulously analysed the entire evidence, both oral and documentary, and has rightly recorded the finding that the plaintiff lost possession in 1992 itself. Consequently, the suit filed in 2008 is clearly barred by limitation under Article 65 of the Limitation Act, 1963. The Trial Court failed to appreciate this crucial aspect of limitation and the long-standing uninterrupted possession of the defendants’ predecessor.

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The legal position is well settled that while an unregistered instrument purporting to extinguish or transfer rights in immovable property cannot be used as substantive evidence to effect such transfer or extinguishment, it may nevertheless be relied upon for collateral purposes. In the present case, Exhibits D41 and D42, though unregistered, are clearly admissible to

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understand the nature of possession, the basis for mutation entries, and the conduct and consensus of the parties regarding the 1992 arrangement. The defendants have led cogent rebuttal evidence demonstrating that Survey No.67 also formed part of the same partition, and the document titled as a relinquishment deed must be properly construed as part of that composite partition.

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21. It would be relevant for this Court to extract the

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relevant portion of the chief-examination of DW2 who was a witness to the execution of Ex.D40:

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“ EUÀ £À£ÀUÉ vÉÆÃj¹zÀzÁR¯Áw ¤±Á£É r:40 £ÉÆÃqÀ¯ÁV CzÀgÀ ªÉÄÃ¯É JgÀqÀ£É ¥ÀÄlzÀ°è £À£Àß ¸À» ¸ÁQë JAzÀÄ 1£ÉÃ £ÀA§jUÉ ¸À» ªÀiÁrzÀÄÝ ¸ÀzÀj £À£Àß ¸À»AiÀÄ£ÀÄß ¤r:40(©) JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¸ÀzÀj £À£Àß ¸À» EgÀÄªÀ PÉ¼ÉUÉ CAzÀgÉ 2£ÉÃ ¸ÁQëzÁgÀ JAzÀÄ UÉÆÃ«AzÀ ©üÃªÀÄÄ gÁoÉÆÃqÀ C£ÀÄßªÀªÀgÀÄ ¸À» ªÀiÁrgÀÄvÁÛgÉ ¸ÀzÀj UÉÆÃ«AzÀ ©üÃªÀÄÄ gÁoÉÆÃqÀ FvÀ FUÀ ªÀÄÈvÀ¥ÀnÖgÀÄvÁ£É ¸ÀzÀj UÉÆÃ«AzÀ gÁoÉÆÃqÀ £Á«§âgÀÄ MnÖUÉ ¸ÀzÀj ¸À»AiÀÄ£ÀÄß ªÀiÁrgÀÄvÉÛÃªÉ D PÁgÀt DvÀ£À ¸À» UÀÄwð¸ÀÄvÉÛÃ£É.”

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The signatures of plaintiff on D44 is marked at Ex.D44A then at D44 is A mutation pertaining to Sy.66

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before certification of mutation the signature of plaintiff is identified at Ex. D 44A, mutation bearing ME. No. 2138 pertaining to present suit land plaintiff signature identified at D45A, though plaintiff is disputing Exh D40-45, the signature of plaintiff right from relinquishment deed at Ex.D-40 and other documents, however on deeper examination of Ex D40(unregistered relinquishment deed), unregistered partition deed evidenced at Ex.D42 and a joint Waradi reporting partition in respect of Sy.66 at Ex.D43, It is forthcoming that in Ex.D40 plaintiff along with all his children have signed the document, further witness DW2 has identified his signature marked at Ex.D40b and he has also identified signature of plaintiff as Ex.D40a in relinquishment deed, as Ex.D41a at Ex.D41 and his signature is also identified and marked as Ex.D 42a in Ex.D42 (unregistered partition deed) and in Ex.D43 which is a Joint wardi reporting partition in respect of Sy.No.66, his signature is identified as Ex.D43a.

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Next two crucial documents are Ex.D44-45.

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Ex.D44 pertains to Sy.66 before the revenue officers also plaintiff along with children has signed Ex.D44 where partition is acted upon and mutation is effected in ME No.2139. His signature is identified and marked as Ex.D44a.

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Similarly the next crucial document is ME No.2138 marked at Ex.D45, even in this mutation proceedings plaintiff’s signature is marked as Ex.D45a and children have also signed before the revenue authorities. Acting on these 2 certifications of mutations pertaining to Sy. No.66 and 67 entries are immediately changed in 1992 itself and plaintiff has never questioned these certifications of mutation.

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In a suit for partition between Mohammedan co-sharers, it is well settled that there is ordinarily no period of limitation, since Mohammedan Law does not recognize a Hindu-style joint family system and each heir

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takes a defined, though undivided, share on inheritance. A

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mere claim for partition, therefore, is not time-barred unless the defendant is able to establish ouster, i.e., exclusive possession by one co-owner to the knowledge of

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the other, accompanied by a hostile assertion of title.

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However, once ouster is made out, the limitation period becomes governed by Article 65 of the Limitation Act, 1963, which prescribes 12 years from the date when possession becomes adverse to the excluded co-sharer.

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In the present case, the defendants have

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proved a clear case of ouster by demonstrating that in 1992 the plaintiff himself participated in the family arrangement, accepted a larger and advantageous share of 13 acres 23 guntas in Survey No.66 under Exhibit D42,

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executed a contemporaneous document styled as a relinquishment (Exhibit D41), and jointly submitted a Waradi (Exhibit D43) that resulted in exclusive mutation

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entries in favour of Saheblal in respect of Survey No.67

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(Exhibits D44 and D45) .

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Further, under Sections 115 to 117 of the Indian Evidence Act, 1872, the plaintiff is estopped from disputing the same family arrangement after having accepted and enjoyed its benefits. The plaintiff cannot approbate and reprobate, he cannot retain the advantage of receiving a substantially larger extent in Survey No.66 while repudiating the corresponding relinquishment of Survey No.67 arising from the same transaction. The Supreme Court has consistently held that a party who has accepted benefits under a family arrangement cannot subsequently challenge the burdens flowing from it.

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Thus, both on the ground of (i) proved ouster attracting Article 65, and (ii) estoppel arising from the plaintiff’s acceptance of a disproportionate share, the belated challenge to the 1992 arrangement is legally untenable.

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The Trial Court, while accepting the

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unregistered partition in respect of Survey No.66, erred in discarding Exhibit D41 solely for want of registration, without examining its collateral value or the conduct of the parties. This selective acceptance and rejection of interconnected documents resulted in a perverse appreciation of evidence. The First Appellate Court has, therefore, rightly re-appreciated the evidence and correctly reversed the findings of the Trial Court on Issue Nos.1 and 5. The substantial question of law is accordingly answered in the affirmative .

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For the foregoing reasons, the Regular Second Appeal fails and is hereby dismissed.

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SD/(SACHIN SHANKAR MAGADUM) JUDGE

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RSP

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List No.: 3 Sl No.: 1 CT:SI

Hussainpasha S/O Kashimsab Gachinamahal v. Imamkashim S/O Saheblal Gachinmahal and Ors.

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Hussainpasha S/O Kashimsab Gachinamahal v. Imamkashim S/O Saheblal Gachinmahal and Ors.

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