Susheela W/O. Suresh Marathe vs Suhas Suresh Marathe

Karnataka High Court

Susheela W/O. Suresh Marathe vs Suhas Suresh Marathe on 25 November, 2025

Author: R.Devdas

Bench: R.Devdas

                            -1-
                                      RFA No.100402 of 2022
                                  C/W RFA No.100014 of 2022




IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

     DATED THIS THE 25TH DAY OF NOVEMBER, 2025
                         PRESENT

          THE HON'BLE MR. JUSTICE R.DEVDAS
                          AND
     THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI

       REGULAR FIRST APPEAL NO.100402/2022 (DEC/INJ)
         C/W REGULAR FIRST APPEAL NO.100014/2022

IN RFA NO.100402/2022:
BETWEEN:

1.   SUSHEELA W/O. SURESH MARATHE,
     AGED ABOUT 76 YEARS,
     OCC: AGRICULTURIST AND HOUSEHOLD,
     R/O. VEERBHADRA GALLI, SIRSI,
     UTTAR KANNADA DISTRICT-581401.

2.   SUDHEER SURESH MARATHE,
     AGED ABOUT 52 YEARS,
     OCC: AGRICULTURIST AND BUSINESS,
     R/O. VEERBHADRA GALLI, SIRSI,
     UTTAR KANNADA DISTRICT-581401.

3.   SUCHETA W/O. SANJAY JOGA,
     AGED ABOUT 54 YEARS,
     OCC: HOUSEHOLD,
     R/O. VEERBHADRA GALLI, SIRSI,
     UTTAR KANNADA DISTRICT-581401,
     NOW RESIDING AT BENGALURU.

                                              -   APPELLANTS
(BY SRI. A.P.HEGDE JANMANE AND
SRI. VIJAY MALALI, ADVOCATES)

AND:

SUHAS SURESH MARATHE,
AGED ABOUT 53 YEARS, OCC: BUSINESS,
                             -2-
                                      RFA No.100402 of 2022
                                  C/W RFA No.100014 of 2022




R/O. VEERBHADRA GALLI, SIRSI,
UTTAR KANNADA DISTRICT-581401.
                                              -   RESPONDENT
(BY SRI. S.G.NANDOOR, ADVOCATE FOR
SRI. A.C.CHAKALABBI, ADVOCATES)


      THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
CPC AGAINST THE JUDGMENT AND DECREE DATED 24.09.2021
PASSED IN O.S.NO.18/2013 ON THE FILE OF THE SENIOR CIVIL
JUDGE SIRSI, DISMISSING THE SUIT FILED FOR PARTITION AND
DECLARATION AND ETC.



IN RFA NO.100014/2022:
BETWEEN:

1.   SUSHEELA W/O. SURESH MARATHE,
     AGED ABOUT 76 YEARS,
     OCC: AGRICULTURIST AND HOUSEHOLD,
     R/O. VEERBHADRA GALLI, SIRSI,
     UTTAR KANNADA DISTRICT-581401.

2.   SUDHEER SURESH MARATHE,
     AGED ABOUT 52 YEARS,
     OCC: AGRICULTURIST AND BUSINESS,
     R/O. VEERBHADRA GALLI, SIRSI,
     UTTAR KANNADA DISTRICT-581401.

3.   SUCHETA W/O. SANJAY JOGA,
     AGED ABOUT 54 YEARS,
     OCC: HOUSEHOLD,
     R/O. VEERBHADRA GALLI, SIRSI,
     UTTAR KANNADA DISTRICT-581401,
     NOW RESIDING AT BENGALURU.

                                              -   APPELLANTS
(BY SRI. A.P.HEGDE JANMANE AND
SRI. VIJAY MALALI, ADVOCATES)
                                -3-
                                         RFA No.100402 of 2022
                                     C/W RFA No.100014 of 2022




AND:

1.   SUHAS SURESH MARATHE,
     AGED ABOUT 53 YEARS, OCC: BUSINESS,
     R/O. VEERBHADRA GALLI, SIRSI,
     UTTAR KANNADA DISTRICT-581401.

2.   SANJAY BALAVANTRAO JOG,
     AGED ABOUT 61 YEARS,
     OCC: RETIRED ENGINEER,
     R/O. BANGALORE.

                                                -   RESPONDENTS
(BY SRI. S.G.NANDOOR, ADVOCATE FOR
SRI. A.C.CHAKALABBI, ADVOCATES FOR R1;
SRI. V.M.SHEELVANT, SRI. VINAY S.KOUJALAGI,
SRI. ROHIT L.SHEELVANT AND
SRI. M.L.VANTI, ADVOCATES FOR R2)


       THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
CPC AGAINST THE JUDGMENT AND DECREE DATED 24.09.2021
PASSED IN O.S.NO.2/2013 ON THE FILE OF THE SENIOR CIVIL
JUDGE, SIRSI, DECREEING THE SUIT FILED FOR PARTITION AND
DECLARATION AND ETC.


       THESE REGULAR FIRST APPEALS HAVING BEEN HEARD AND
RESERVED ON 17.11.2025, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:


CORAM:     THE HON'BLE MR. JUSTICE R.DEVDAS

           AND

           THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
                               -4-
                                        RFA No.100402 of 2022
                                    C/W RFA No.100014 of 2022




                      CAV JUDGMENT

(PER: THE HON'BLE MR. JUSTICE R.DEVDAS) These two Regular First appeals arise out of common judgments passed by the learned Senior Civil Judge, Sirsi in O.S.Nos.2/2013, 18/2013 and 59/2016, therefore, these appeals were clubbed, heard together and are being disposed of by this common judgment.

2. For the sake of convenience, the parties are referred to in terms of their ranking before the trial court. Since O.S.No.2/2013 is the leading suit, the plaintiff Sri.Suhas, shall be referred to as 'plaintiff'.

3. Sri.Suresh Marathe and his wife Susheela have three children, Suhas, Sudheer and Sucheta. During the lifetime of Sri.Suresh Marathe, being the Kartha of the joint family, Sri.Suresh Marathe got executed a partition deed dated 30.08.2000, duly registered, allocating four items of immovable properties to his first son Suhas, three immovable properties to his second son Sudheer, -5- RFA No.100402 of 2022 C/W RFA No.100014 of 2022 while the eldest daughter Sucheta was allotted the second floor for the purpose of residence, in property bearing CTS No.1165/A1, to take effect after demise of her parents. Sri.Suresh Marathe along with his wife retained three items of immovable properties, including CTS No.1165/A1. The joint family was eking out their livelihood from a printing press in property bearing CTS No.1142. Sri.Suresh Marathe along with his wife Smt.Susheela executed a Will dated 18.11.2010, which is the last testament of Sri.Suresh Marathe. Since no part of the properties which were retained by Sri.Suresh Marathe and his wife Smt.Susheela were bequeathed to their first son Suhas, Sri.Suhas filed O.S.No.2/2013 seeking cancellation of the registered Will dated 18.11.2010, with a further prayer to treat the suit schedule properties as joint family properties and to give equal share to the plaintiff in the suit schedule properties. The suit schedule properties include all the immovable properties belonging to the joint family, including those that were allotted to -6- RFA No.100402 of 2022 C/W RFA No.100014 of 2022 the parties under the partition deed. Subsequently, by order dated 18.12.2019, the prayer is amended to declare that the 'settlement' dated 30.08.2000 is inequitable, unjust and consequently to cancel the settlement deed. Smt.Susheela, Sri.Sudheer and Smt.Sucheta filed O.S.No.18/2013 seeking a declaration that in terms of the registered Will dated 18.11.2010, plaintiff Nos.2 and 3, along with plaintiff No.1 are entitled for joint possession of the suit schedule properties; grant permanent injunction restraining the defendant Suhas from interference with the suit schedule properties.

4. O.S.No.59/2016 is filed by the wife and children of Sri.Suhas against Smt.Susheela, Sri.Sudheer, Smt.Sucheta and Sri.Suhas seeking partition and separate possession of the suit schedule properties.

5. Insofar as the Will dated 18.11.2010 is concerned, the trial court is of the opinion that the testators of the Will namely, Sri.Suresh Marathe and -7- RFA No.100402 of 2022 C/W RFA No.100014 of 2022 Smt.Susheela have executed Wills, earlier too, but the Will dated 18.11.2010 is the last testament. The trial court has come to the conclusion that the execution of the Will has been proved by examining the two attesting witnesses. However, since the Will in question is a joint Will, executed by Sri.Suresh Marathe and Smt.Susheela expressing common intention, nevertheless, since Smt.Susheela is still alive, the Will cannot be enforced. The trial court has therefore held that the declaration sought by Smt.Susheela, Sudheer and Sucheta in O.S.No.18/2013 to declare joint ownership in respect of the suit schedule properties cannot be granted as the prayer is premature. Similarly, the trial court has held that since the prayer made by Sri.Suhas in O.S.No.2/2013 is allowed and partition of all the suit schedule properties is decreed, the 'Will' becomes a 'void' document.

6. As regards the partition deed and the prayer made in O.S.No.2/2013 by Sri.Suhas, the trial court has -8- RFA No.100402 of 2022 C/W RFA No.100014 of 2022 noticed from the material available on record, after execution of the partition deed, the parties have been living separately and the plaintiff and his family have a separate ration card, election identity card etc., and therefore, it is concluded that there is separation of the joint family. The trial court has concluded that there is no status of jointness and all the properties of the joint family were divided in the year 2000 and Khata of the respective properties have been changed in terms of the partition deed and the parties are living separately, enjoying their shares. It is held that the burden of proof regarding continuation of the joint family status is heavy on the plaintiff and the plaintiff has failed to prove the existence and continuation of the joint family. The trial court has concluded that having regard to Article 56 of the Limitation Act, 1963, since the plaintiff cannot dispute the fact that he is a signatory to the 'partition deed' dated 30.08.2000, and since he has knowledge of the execution of the partition deed, the plaintiff should have -9- RFA No.100402 of 2022 C/W RFA No.100014 of 2022 questioned the partition deed on the ground of fraud, forgery etc., within a period of three years from date of the execution of the partition deed. The trial court has also noticed the fact that the plaintiff proceeded to have his name recorded in the revenue documents on the strength of the partition deed. The plaintiff did not take action against the said documents during the lifetime of his father. The plaintiff has enjoyed the fruits of the allotted shares and then raised objection against his mother and brother alleging that his demand for share is being rejected. The trial court has held that it is strange that the plaintiff Sri.Suhas kept quiet till the death of his father, he enjoyed the fruits of the partition but soon after the death of his father, he rushed to the court by making allegation against his mother and brother. It is held that the plaintiff utterly failed to prove that Ex.P17 is not a partition deed. Nevertheless, the trial court has decreed the suit and directed partition of the suit schedule properties.

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C/W RFA No.100014 of 2022

7. Learned counsel Sri.A.P.Hegde Janmane, appearing for the appellants Smt.Susheela, Sri.Sudheer and Smt.Sucheta, however submits that despite the above findings, the trial court has decreed the suit filed by Sri.Suhas and his wife and children, on the ground that there is inequitable partition. The trial court has accepted the contention of Sri.Suhas and his family members that properties having lesser value have been allotted to Sri.Suhas and valuable properties have been allotted to Sri.Sudheer. The trial court has accepted the contention that the family had valuable moveable properties and monies deposited in various banks and no part of the movables have been allotted to Sri.Suhas, in the partition deed. The trial court has therefore held that Ex.P17 is not a real partition deed, it is only a family settlement which can be re-opened at any point of time.

8. Learned counsel Sri.A.P.Hegde Janmane has drawn the attention of this court to a decision of the Apex Court in the case of TAJWANT SINGH (DEAD) THROUGH LRS

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C/W RFA No.100014 of 2022 VS GURCHARAN RAM (DEAD) THROUGH LRS AND OTHERS in CIVIL APPEAL NO.3353/2012 DATED 04.09.2019, where it was held that the endeavour of the appellant is to reopen the family settlement and get a re-partition done of all the properties, which cannot be permissible and full sanctity should be given to a family settlement as held in KALE AND OTHERS VS DEPUTY DIRECTOR OF CONSOLIDATION AND OTHERS, reported in AIR 1976 SC 807. Learned counsel submitted that Ex.P17 is a registered partition deed and the plaintiff has not denied the execution of the deed. It is also strange that the trial court has arrived at such a conclusion even after finding that the plaintiff did not take action against the said document during the lifetime of his father and within the period of limitation prescribed in Article 58 of the Limitation Act. Learned counsel submitted that even if it is the contention of the plaintiff that there was inequitable partition, even then, the partition deed should have been challenged within the period prescribed under the Limitation Act. That position

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C/W RFA No.100014 of 2022 having been accepted by the trial court, the trial court has erred in decreeing the suit, only on the ground that there was inequitable partition. The trial court has ignored the question of limitation.

9. On the other hand, learned counsel for the plaintiffs sought to support the impugned judgment passed by the trial court. Learned counsel pointed out to the findings of the trial court in the impugned judgment, having considered the definition of the term 'settlement' as found in the dictionaries, it was held that a settlement means the action of reaching an agreement, the settlement of a dispute, however, Ex.P17 does not end the dispute between the parties, but it increases the dispute. In that view of the matter, the trial court is right in arriving at a conclusion that there is discrimination in the matter of division of properties. Only Kachha house is allotted with a condition to use ladder with the permission of Sri.Sudheer and therefore, the plaintiffs made out a case for re-opening of partition. Having arrived at such a

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C/W RFA No.100014 of 2022 conclusion, since the joint family properties required re- partition, the Will executed by Sri.Suresh Marathe and his wife Smt.Susheela was rightly held as void by the trial court.

10. Learned counsel Sri.V.M.Sheelvant, appearing for respondent No.2, the original defendant No.4 in O.S.No.2/2013 (the husband of Smt.Sucheta), contended that suit schedule properties at schedule-C and D were separate properties of Sri.Suresh Marathe. It is submitted that the plaintiffs have admitted during their cross- examination that the said properties belonged to the uncle of Sri.Suresh Marathe and since Sri.Suresh Marathe acquired the same from his uncle, they were not ancestral properties of Sri.Suresh Marathe. Defendant No.4 purchased the properties under registered sale deeds from Sri.Suresh Marathe, and therefore, the said properties could not have been included in the suit schedule. It submitted that although the trial court has noticed the admission of P.W.1, nevertheless, no findings

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C/W RFA No.100014 of 2022 have been given in the impugned judgment for accepting the claim of the plaintiffs, insofar as schedule-C and D are concerned. Defendant No.4 is the absolute owner of schedule-C and D properties and therefore, the impugned judgment as regards the said two items of properties cannot be sustained.

11. Heard learned counsel Sri.A.P.Hegde Janmane for the appellants, learned counsel Sri.S.G.Nandoor for respondent No.1, learned counsel Sri.V.M.Sheelvant for respondent No.2 and perused the appeal memo and original records.

12. The prayer in the suit in O.S.No.2/2013 is to declare the registered partition deed dated 30.08.2000 as void, on the ground that it is inequitable, unjust and illegal. The other prayer is directed against registered Will dated 18.11.2010 executed by Sri.Suresh Marathe and his wife Smt.Susheela. A plain reading of the registered partition deed dated 30.08.2000, shows that the parties

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C/W RFA No.100014 of 2022 to the said instrument have understood the document as an instrument to partition the joint family properties. The plaintiff Sri.Suhas is an executant of the said document and the plaintiff has not denied the fact that he has executed the document. However, the plaintiff seeks to contend that the said document is a settlement deed which did not actually divide the joint family properties. It was meant as an expression of the intention of Sri.Suresh Marathe and a separate document was to be executed in the future to physically divide the joint family properties.

13. The Transfer of Property Act does not define the words 'partition' or 'settlement'. On the other hand, clause (k) of Sub-Section 1 of Section 2 of the Karnataka Stamp Act defines an 'instrument of partition' to mean an instrument whereby co-owners of any property divide or agreed to divide such property in severalty. Clause (q) therein defines 'settlement' to mean any non- testamentary deposition in writing, of movable or immovable property made for the purpose of distributing

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C/W RFA No.100014 of 2022 property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him. The stark difference between 'partition' and 'settlement' is the nature of the property which could be dealt with. A partition is therefore, in respect of property belonging to the co-owners. On the other hand, the property which can be settled under a 'settlement' is a property belonging to the settler, viz., the settlers separate property. Therefore, there is no strength in the contention of the plaintiff Sri.Suhas, that the document in question is a deed of settlement and not a deed of partition. The recital in the partition deed makes it clear, that the parties intended to partition and divide the joint family properties. The parties to the document have accordingly understood the purport and intention of the terms of the partition deed and after execution of the partition deed, the parties thereto have proceeded to act in accordance with the terms of the partition deed. The

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C/W RFA No.100014 of 2022 respective parties to the document have exercised acts of ownership over the respective properties which fell to their share. They have got the revenue records transferred in their respective names and have exercised acts of ownership exclusively. Further, when admittedly the properties which were divided and allotted under the said document were enjoyed separately by each of the allottees were admittedly joint family properties, the plaintiff is precluded from contending that the said document is a deed of settlement. As noticed hereinabove, what could be settled or distributed under a settlement deed is the exclusive, self-acquired properties or separate properties of the settler. Since the claim of the plaintiff is that the properties that were divided under the registered partition deed dated 30.08.2000 are joint family properties, the division thereof could happen only by way of partition and not settlement.

14. It is necessary to notice that the prayer seeking declaration of the partition deed dated

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C/W RFA No.100014 of 2022 30.08.2000 as a void document is on the ground that it is inequitable, unjust and illegal, but, no particulars of the alleged fraud or misrepresentation has been disclosed. The Hon'ble Apex Court in the case of RANGANAYAKAMMA AND ANOTHER VS K.S.PRAKASH (DEAD) BY LRS AND OTHERS reported (2008) 15 SCC 673 has held that the provisions of Order 6 Rule 4 of CPC cannot be lost sight of. When a fraud is alleged, the particulars thereof are required to be pleaded and proved. When there is nothing to show nor the plaint contains any averments that a fraud and misrepresentation has been practiced on the plaintiff, the registered document would not be void but only voidable. It was held that the illegality of a contract need not be pleaded, but, when a contract said to be voidable by reason of any coercion, misrepresentation or fraud, the particulars thereof are required to be pleaded. It is a well settled principle of law that a void document is not required to be voided whereas a voidable document must be. If, however a document is prima facie valid, a

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C/W RFA No.100014 of 2022 presumption arises in regard to its genuineness.

15. In the light of the above facts, the next question that arises is regarding limitation. In the said decision of RANGANAYAKKAMMA (supra), their Lordships have held that the applicability of Article 65 or Article 110 of the Limitation Act, on the one hand, and Article 59 on the other, would depend upon the factual situation involved in a case. A decree for setting aside of a document may be sought for in terms of Section 31 of the Specific Relief Act. Applicability of Article 59 would depend upon the question as to whether the deed of partition was required to be set aside or not. Since it is not disputed that the plaintiff Sri.Suhas was party to the partition deed dated 30.08.2000 and all other members of the family were executants of the document, the document is not a void document. Therefore, since the registered document, at best is voidable at the instance of the plaintiff, then the declaration should have been sought within the period of limitation prescribed under

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C/W RFA No.100014 of 2022 Article 56 of the Limitation Act, i.e., within three years from the date of registration of the document. The suit in O.S.No.2/2013 was filed by Sri.Suhas, seeking a declaration regarding the registered partition deed dated 30.08.2000, long after the period of three years commencing from the date of registration, and therefore the suit is required to be dismissed on the ground of limitation.

16. Consequently, O.S.No.59/2016 filed by the wife and children of Sri.Suhas seeking partition and separate possession of the suit schedule properties should also fail for the same reason.

17. Insofar as O.S.No.18/2013 filed by Smt.Susheela, Sri.Sudheer and Smt.Sucheta, seeking declaration that in terms of the registered Will dated 18.11.2010, plaintiff Nos.2 and 3, along with plaintiff No.1 are entitled for joint possession of the suit schedule properties and for grant of permanent injunction

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C/W RFA No.100014 of 2022 restraining the defendant Sri.Suhas from interference with the suit schedule properties, this court should uphold the findings of the trial court that the beneficiaries under the Will cannot get ownership of the properties before the death of both the testators. Since Smt.Susheela is alive, the joint Will executed by Smt.Susheela along with her husband Sri.Suresh Marathe cannot be executed during the lifetime of Smt.Susheela. However, insofar as the prayer in O.S.No.18/2013 for grant of permanent injunction restraining the defendant Sri.Suhas from interfering with the suit schedule properties is concerned, the prayer can be granted in favour of plaintiff No.1-Smt.Susheela. Under the deed of partition dated 30.08.2000, the suit schedule properties in O.S.No.18/2013, fell to the share of Sri.Suresh Marathe and his wife Smt.Susheela. Having regard to Section 8 of the Transfer of Property Act, the transfer under the deed of partition took effect forthwith and all the interest which the transferee acquired under the

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C/W RFA No.100014 of 2022 registered deed stood transferred immediately after the execution and registration of the document. From that moment, all other persons and parties to the partition deed loose all rights in respect of those properties which fell to the share of Sri.Suresh Marathe and Smt.Susheela. Therefore, Smt.Susheela is entitled for and is granted the relief of permanent injunction restraining the defendant Sri.Suhas from interfering with the suit schedule properties in O.S.No.18/2013.

18. Insofar as the partition in respect of movable properties are concerned, this court is of the considered opinion that no material evidence is placed before this court to show that prior to execution of a partition deed dated 30.08.2000 the joint family had in its possession the movable items shown in the schedule. Therefore, the question of granting partition of the movable properties as claimed in O.S.No.2/2013 and O.S.No.59/2016, will not arise.

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C/W RFA No.100014 of 2022

19. For the reasons stated above, this court proceeds to pass the following:

ORDER

i) RFA No.100014/2022 is allowed while setting aside the impugned judgment and decree passed in O.S.No.2/2013. Consequently, the suit in O.S.No.2/2013 stands dismissed.

ii) RFA No.100402/2022 is allowed in part. The suit in O.S.No.18/2013 is allowed in respect of prayer No.2 and the defendant Sri.Suhas is permanently restrained from interfering with the suit schedule properties, insofar as plaintiff No.1 is concerned. Prayer No.1 stands rejected. Plaintiff No.1 is entitled for costs thereof.

Ordered accordingly.

Sd/-

(R.DEVDAS) JUDGE Sd/-

(B. MURALIDHARA PAI) JUDGE MBS CT: VH