Smt.Renukamma Vs Smt.Hanumakka

S/O LATE BHEEMABHOVI, AGED ABOUT 46 YEARS, ALL THE RESPONDENTS ARE RESIDING AT SOORAGONDANAHALLY, AIMANGALA HOBLI, HIRIYUR TALUK – 572 144, CHITRADURGA DISTRICT.

¶23

…RESPONDENTS

¶24

(R1 – SERVED, R2 – SERVED; R3 - SERVED)

¶25

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.4.2013 PASSED IN R.A.NO.68/2012 ON THE FILE OF THE ADDL. SESSIONS JUDGE, FAST TRACK COURT, CHITRADURGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 28.8.2012 PASSED IN O.S.NO.23/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, HIRIYUR.

¶26

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

¶27

3 - NC: 2026:KHC:26932 RSA No. 1614 of 2013

¶28

HC-KAR

¶29

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

¶30

ORAL JUDGMENT

¶31

This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 17.04.2013 passed in R.A.No.68/2012 by the learned Additional Sessions Judge (Fast Track Court), Chitradurga.

¶32

For convenience, the parties are referred to, as per their ranking before the trial Court. The appellant was the plaintiff and the respondents were the defendants.

¶33

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

¶34

The plaintiff filed a suit for partition and separate possession against the defendants in respect of the suit schedule properties. It is the case of the plaintiff that defendant Nos.2, 3 and herself are the children of defendant No.1. Dasabhovi s/o Erabhovi is the propositor of the plaintiff and the defendants. He had three sons. Out

¶35

4 - NC: 2026:KHC:26932 RSA No. 1614 of 2013

¶36

HC-KAR

¶37

of them, Bheemabhovi father of the plaintiff and defendant Nos.2 and 3 are his children and 3^rd son is Dasabovi. The suit schedule properties are the ancestral and joint family properties of the plaintiff and the defendants. The plaintiff and the defendants are the members of the Hindu undivided family and no partition is effected between the plaintiff and the defendants. The plaintiff demanded for partition and separate possession. But the defendants refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession.

¶38

3.1. Defendant No.2 filed a written statement

¶39

denying the averments made in the plaint. It is contended that R.S.No.137/P2 previously belongs to one Thimmabovi, who is having two sons namely Erabhovi, Alkurappa and Shalamma. The said Erabhovi, Alkurabovi and Shalamma died long back. The said properties were given to defendant No.2 out of love and affection. The said property is not the property of Bheemabhovi, who is the

¶40

5 - NC: 2026:KHC:26932 RSA No. 1614 of 2013

¶41

HC-KAR

¶42

father of the plaintiff. R.S.No.137/P3 measuring 3 acres 37 guntas belongs to Alkurappa, who is consent to the change of khatha in favour of Thimmaiah who is the grandson represented by his natural guardian his father namely Bheemabhovi. One propositus namely Dasabhovi having two sons namely Nagendrappa, Chandrappa, and four daughters. The gynecological tree produced by the plaintiff is incorrect. After changing the revenue entries in their name, they invested huge amount. Hence, R.S.No.137/P1 and P2 are not amendable for partition. Hence, there is no cause of action to file a suit in respect of R.S.No.137/P1 and P2. Hence, prays to dismiss the suit.

¶43

3.2. The trial Court based on the pleadings of the

¶44

parties framed the following issues:

¶45

1) Whether plaintiff proves that suit schedule properties are ancestral and joint family properties of herself and defendants?

¶46

2) Whether plaintiff proves that she is having her legitimate share in the suit schedule properties?

¶47

6 - NC: 2026:KHC:26932 RSA No. 1614 of 2013

¶48

HC-KAR

¶49

3) Whether plaintiff is entitled for partition and separate of her legitimate share in the suit schedule properties?

¶50

4) What order or decree?

¶51

3.3. The plaintiff, to substantiate her case, examined herself as PW1 and marked 14 documents as Exs.P1 to P14. In rebuttal, defendant No.2 was examined as DW1 and marked 03 documents as Exs.D1 to D3. The trial Court, after recording the evidence, hearing both sides and after assessing the verbal and documentary evidence, answered issue Nos.1 to 3 in the affirmative and issue No.4 as per the final order. The suit of the plaintiff was decreed and held that the plaintiff is entitled for 5/16^th share in A and B suit schedule properties vide judgment and preliminary decree dated 28.08.2012.

¶52

3.4. Defendant No.2, aggrieved by the judgment

¶53

and preliminary decree dated 28.08.2012 passed in O.S.No.23/2009, preferred an appeal in R.A.No.68/2012

¶54

7 -

¶55

NC: 2026:KHC:26932 RSA No. 1614 of 2013

¶56

HC-KAR

¶57

by the learned Additional Sessions Judge (Fast Track

¶58

Court) Chitradurga.

¶59

3.5. The First Appellate Court, after hearing the

¶60

learned counsel for the parties, framed the following points

¶61

for consideration:

¶62

1) Whether the plaintiff proved that, the suit schedule properties are ancestral and joint family properties of herself and defendants?

¶63

2) Whether the plaintiff entitle to get her share in the suit schedule properties?

¶64

3) Whether the suit is bad for non-joinder of necessary parties?

¶65

4) Whether impugned judgment passed by learned trial Court is arbitrary, perverse and oppose to law?

¶66

5) Is there any sufficient reasons to interfere in the order of the learned trial Court?

¶67

6) What decree or order?

¶68

3.6. The First Appellate Court, after re-assessing the

¶69

entire evidence on record, answered point No.1 partly in the affirmative, point No.2 the plaintiff is entitled to get

¶70

8 - NC: 2026:KHC:26932 RSA No. 1614 of 2013

¶71

HC-KAR

¶72

1/16^th share in item No.2 of ‘A’ schedule property and item No.1 of ‘B’ schedule property, point Nos.3 to 5 are answered in the affirmative and point No.6 as per the final order. The appeal was allowed and the judgment and decree passed in O.S.No.23/2009 was set aside and the suit of the plaintiff was decreed partly against the defendants and it is directed the defendants that, the plaintiff is entitled to get 1/16^th share in item No.2 of ‘A’ schedule property and item No.1 of ‘B’ schedule property by metes and bounds. Each defendant is entitled to get 5/16^th shares each in the said property by metes and bounds and the defendants are directed to hand over the share of the plaintiff within 3 months from the date of the order, if failed to do so, the plaintiff is having liberty to get her share as per due process of law.

¶73

3.7. Defendant No.2, aggrieved by the judgment and decree passed by the First Appellate Court in R.A.No.68/2012 granting the share in respect of R.S.No. 137/P2 and P3, filed this Regular Second Appeal.

¶74

9 -

¶75

NC: 2026:KHC:26932 RSA No. 1614 of 2013

¶76

HC-KAR

¶77

4. Heard Sri R.B.Sadashivappa, learned counsel for the plaintiff.

¶78

5. Learned counsel for the plaintiff submits that

¶79

the First Appellate Court committed an error in granting a share in R.S.No.137/P2 and P3. He submits that the said properties stands in the name of defendant No.2. The said properties are not amenable for partition. The First Appellate Court committed an error in granting a share in respect of R.S.137/P2 and R.S.No.137/P3. Hence, on these grounds, he prays to allow the appeal.

¶80

6. Per contra , learned counsel for the defendants

¶81

supported the judgment and contended that the said property is the separate property of defendant No.2 and name of defendant No.2 is entered under the mutation as per Exs.D2 and D3. It is also contended that defendant No.2 has acquired the said property under a partition effected between the family members and the said partition was reduced into writing and submits that the

¶82

10 -

¶83

NC: 2026:KHC:26932 RSA No. 1614 of 2013

¶84

HC-KAR

¶85

defendants have produced the partition deed marked as Ex.D1. He further submits that the revenue records proves the factum of partition.

¶86

7. To buttress his arguments, he has placed a reliance on the judgment of the Hon'ble Apex Court in case of D IGAMBAR A DHAR P ATIL V S . D EVRAM G IRDHAR P AUL (D IED ) AND ANOTHER reported in AIR 1995 SC 1728 . He submits that in view of Exs.D1 and D2, the defendants have proved that there was a partition and in the said partition, R.S.No.137/P2 and 137/P3 fell to the share of defendant No.2 and became the absolute owner of the suit schedule properties. He has also placed reliance on the judgment of the Hon'ble Apex Court in case of A NGADI

¶87

C HANDRANNA V S . S HANKAR AND OTHERS reported in 2025 INSC 532 . The First Appellate Court was justified in declining to grant a share in respect of R.S.No.137/P2 and 137/P3. The judgment and decree passed by the First Appellate Court is just and proper. Hence, it does not call

¶88

11 -

¶89

NC: 2026:KHC:26932 RSA No. 1614 of 2013

¶90

HC-KAR

¶91

for any interference at the hands of this Court. Hence, on

¶92

these grounds, he prays to dismiss the appeal.

¶93

8. This Court, on 17.11.2014, framed the following

¶94

substantial questions of law:

¶95

a. Whether the lower appellate court is justified in reversing the judgment and decree of the trial Court in holding that the Sy.No.137/P2 and 137/P3 are not joint family properties?

¶96

b. Whether the lower appellate court is justified in setting aside the trial Court judgment and decree, that all properties are joint family and ancestral properties of the plaintiff and defendants?

¶97

c. Whether the lower appellate court is justified in reversing the judgment and decree of the trial Court with respect of Sy.No.137/P2 and 137/P3, there is no documents to show that the defendant Nos.2 and 3 have received properties by any documents?

¶98

9. S ubstantial questions Nos.(a) to (c) :

¶99

Substantial questions of law Nos.(a) to (c) are taken together for common discussion as they are interlinked with each other to avoid the repetition of facts.

¶100

NC: 2026:KHC:26932 RSA No. 1614 of 2013

¶101

12 -

¶102

HC-KAR

¶103

10. It is the case of the plaintiff that the suit schedule properties are the ancestral and joint family properties of the plaintiff and the defendants. It is contended that the plaintiff and the defendants are the members of the Hindu undivided family and no partition is effected. It is contended that the plaintiff is a coparcener and is entitled to a share in the suit schedule properties. The plaintiff, in order to substantiate her case, examined herself as PW1. She reiterated the plaint averments in the examination-in-chief and produced the documents Exs.P1 is the genealogical tree, which discloses that the plaintiff and the defendants are the members of the family, Exs.P2 is the RTC extract of land bearing Sy.No.62/1P1, Ex.P3 is the RTC Extract of land bearing No.135/P1, Ex.P4 is the RTC Extract of land bearing No.136/P1, which stands in the name of Bheemabovi, Ex.P5 is the land bearing Sy.No. 137/P2, which stands in the name of Hanumappa and Ex.P6 is the land bearing Sy.No.137/P3, which stands in the name of Thimmiah, Ex.P7 is the mutation extract

¶104

NC: 2026:KHC:26932 RSA No. 1614 of 2013

¶105

13 -

¶106

HC-KAR

¶107

which clearly discloses that land bearing Sy.No.62/P1 was mutated on 23.08.2005, Ex.P8 is the mutation extract to show that the properties were transferred in the name of respective persons, Exs.P9 to 11 are the RTC extracts, which stands in the name of Nagendrappa and Chandranna. On the basis of Exs.P7 and P8 of the mutation register extract, which clearly disclosed that based on the partition mutations were effected and on the basis of Exs.P7 and P8 names of the parties were entered in the RTC extracts and the said RTC extracts were marked as Exs.P9 to P11. Exs.P12 to P14 are the village Form No.1.

¶108

11. During the course of cross-examination, it was suggested to PW1 that R.S.No.137/P2 and P3 are the properties of defendant No.2 and the said properties are not the ancestral and joint family properties of the plaintiff and the defendants. The said suggestion was denied by PW1. In rebuttal, defendant No.2 was examined as DW1 and he has reiterated the written statement averments in

¶109

14 -

¶110

NC: 2026:KHC:26932 RSA No. 1614 of 2013

¶111

HC-KAR

¶112

the examination-in-chief and contended that there was a partition effected between the family members and in the said partition, R.S.No.137/P2 and P3 fell to the share of defendant No.2 and to substantiate his defence, DW1 has produced the partition deed marked as Ex.D1. Based on Ex.D1, the properties were mutated in the name of respective parties as per Ex.D2. The mutation register extract, which clearly discloses the defendants' father got partition of the properties in Sy.No.137/P2 and Sy.No. 137/ P3.

¶113

12. Admittedly, in the instant case, the defendants have produced the partition deed marked as Ex.D1 and based on Ex.D1, the mutations have been effected in the name of respective parties. Admittedly, the plaintiff has filed a suit for partition and separate possession. The burden is on the plaintiff to establish the nature of relationship between the parties to the suit and the nature of suit schedule properties. The defendants have produced the mutation extract marked as Ex.D2. By producing

¶114

15 - NC: 2026:KHC:26932 RSA No. 1614 of 2013

¶115

HC-KAR

¶116

Ex.D2, the defendants have proved that there was a prior partition in the family of the defendants. The Hon'ble Apex Court in the case of D IGAMBAR A DHAR P ATIL V S . D EVRAM G IRDHAR P AUL (D IED ) AND ANOTHER reported in AIR 1995 SC 1728 , held that “the entries in the Record of Rights regarding the factum of partition is a relevant piece of documentary evidence in support of the oral evidence given, by the respondent and his brother to prove the factum of partition. Even in the evidence of Ram Chander, he dearly stated that there was a partition but he could not give the date and year in which the partition was effected nor the deed of the partition was produced. Under the Hindu Law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof. Under those circumstances, when the factum of partition was evidenced by entries in the Record of Rights, which was maintained in official course of

¶117

16 -

¶118

NC: 2026:KHC:26932 RSA No. 1614 of 2013

¶119

HC-KAR

¶120

business, the correctness thereof was not questioned, it corroborates the oral evidence given by the brother and lends assurance to accept it.”

¶121

13. Admittedly, in the instant case, the plaintiff has not challenged Exs.D1 and D2. In the absence of challenge of Exs.D1 and D2, the First Appellate Court was justified in recording a finding that the R.S.No.137/P2 and 137/P3 are not amenable for partition and the plaintiff is not entitled for share in R.S.No.137/P2 and 137/P3. The First Appellate Court, after re-appreciating the entire evidence on record, has rightly passed the impugned judgments. Admittedly, by virtue of Ex.D1, there is a disruption of joint family status and divided members.

¶122

14. It is well settled principles of law that in a suit for partition, initially, the plaintiff has to discharge the burden of proof by showing as the properties are the joint family properties or ancestral properties. If the plaintiff discharges the burden, then the burden shifts upon the

¶123