Karnataka High Court
Shantabai W/O Baburao Madkanna And Anr vs Bhagirathi W/O Parmeshwar Kharate And ... on 6 November, 2025
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2025:KHC-K:6603-DB
RFA No. 200084 of 2016
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 06TH DAY OF NOVEMBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE TYAGARAJA N. INAVALLY
REGULAR FIRST APPEAL NO.200084 OF 2016 (PAR)
BETWEEN:
1. SHANTABAI W/O. BABURAO MADKANNA
SINCE DECEASED BY HER LRs i.e.
LRs ARE TRANSPOSED AS RESPONDENT NO.8 AND 9
2. VIJAYALAXMI D/O. KASHINATH SHERIKAR,
SINCE DECEASED BY LRs.
2(A). KASHINATH SHERIKHAR S/O. VITHOBA,
Digitally signed by
VARSHA N AGE: 73 YEARS, OCC: AGRICULTURE,
RASALKAR
Location: HIGH
R/O. DHANAMMA MANDIR, PLOT NO.14A,
COURT OF RAMAN NAGAR, AKKALKOT ROAD,
KARNATAKA
SOLAPUR (MAHARASHTRA) - 413006.
2(B). MHETRE SUGALA KALAPPA,
AGE: 48 YEARS, OCC: HOUSEHOLD WORK,
R/O. 1152, VALSANG SOUTH SOLAPUR,
DIST. SOLAPUR (MAHARASHTRA) - 413006.
2(C). CHILGUNDE RAJESHWARI MADHUKAR,
AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
R/O. 71 RAMAN NAGAR, AKKALKOT ROAD,
SOLAPUR SOUTH (MAHARASHTRA) - 413006.
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RFA No. 200084 of 2016
HC-KAR
2(D). SAVITA SHAVARU DAHITANE
W/O. SHAVARU DAHITANE,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O. NEAR DHANAMMA MANDIR, PLOT NO.14,
RAMAN AKKALKOT ROAD, SOLAPUR SOUTH,
MIDC SOLAPUR SOUTH,
(MAHARASHTRA) - 413006.
2(E). AMARNATH KASHINATH SHERIKAR,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O. PLOT NO.14A, RAMAN NAGAR,
AKKALKOT ROAD, SOLAPUR SOUTH,
SOLAPUR (MAHARASHTRA) - 413006.
2(F). YOGESH KASHINATH SHERIKAR,
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O. PLOT NO.14A, RAMAN NAGAR,
AKKALKOT ROAD, SOLAPUR SOUTH,
SOLAPUR (MAHARASHTRA) - 413 006.
...APPELLANTS
(BY SRI. ANANTH S. JAHAGIRADAR, ADVOCATE)
AND:
1. BHAGIRATHI W/O. PARMESHWAR KHARATE,
AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
R/O. KHANDAK GALLI, ALAND,
DIST: KALABURAGI - 585302.
2. SHRIMANTH S/O. PARMESHWRA KHARATE,
AGE: 35 YEARS, OCC: SERVICE,
R/O. KHANDAL GALLI, ALAND,
DIST: KALABURAGI - 585302.
3. NANDA D/O. PARMESHWAR KHARATE,
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
R/O. KHANDAL GALLI, ALAND,
DIST: KALABURAGI - 585302.
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RFA No. 200084 of 2016
HC-KAR
4. ANKUSH W RAJA S/O. PARMESHWAR KHARATE,
AGE: 27 YEARS, OCC: NIL,
R/O. KHANDAL GALLI, ALAND,
DIST: KALABURAGI - 585302.
5. SANTOSH S/O. PARMESHWAR KHARATE,
AGE: 29 YEARS, OCC: NIL,
R/O. KHANDAL GALLI, ALAND,
DIST: KALABURAGI - 585302.
6. SHANKAR S/O. GURULINGAPPA KHARATE,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O. H.NO.5-7-2
SIUATED AT KHANDAK GALLI, ALAND,
DIST: KALABURAGI - 585302.
7. SURYAKANT S/O. GURULINGAPPA KHARATE,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O. H.NO.5-7-2
SIUATED AT KHANDAK GALLI, ALAND,
DIST: KALABURAGI - 585302.
8. SHASHIKANT S/O. BABURAO MUDKANNA
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O. MUDKANNA GALLI,
NEAR BANK OF MAHARASHTRA, OMER,
DIST: DHARASHIV (OSMANABAD),
(MAHARASHTRA STATE) - 413 606.
9. KAMALABAI W/O. SURYAKANTH KHARATE,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O. C/O. SURYAKANTH GURULINGAPPA KHARATE,
H. NO.5-7-2 SITUATED AT KHANDAK GALLI,
ALAND, DIST: KALABURAGI - 585 302.
...RESPONDENTS
(BY SRI. K.M. GHATE, ADV FOR R1 TO R6)
(R7 TO R9 ARE SERVED)
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RFA No. 200084 of 2016
HC-KAR
THIS RFA IS FILED U/S. 96 OF THE CODE OF CIVIL
PROCEDURE, PRAYING TO A) ALLOW THIS APPEAL BY SETTING
ASIDE THE JUDGMENT AND DECREE DATED 28.04.2016
PASSED BY THE SENIOR CIVIL JUDGE COURT AT ALAND IN OS
NO.49/2011, AND DECREE THE SUIT OF THE PLAINTIFFS AS
PRAYED FOR WITH COSTS.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 15.10.2025 AND COMING ON FOR 'HEARING'
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD
AND
HON'BLE MR. JUSTICE TYAGARAJA N. INAVALLY
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE TYAGARAJA N. INAVALLY) The appellants being the plaintiffs in the suit in O.S No. 49/2011 on the file of the Court of Senior Civil Judge, Aland (hereinafter referred to as 'the Trial Court') have come up with the present appeal challenging the judgment decree dated 28.04.2016 passed in the said suit, as the Trial Court dismissed their suit filed for the relief of partition and separate possession of their 1/5th share each in the suit properties which are hereunder: -5-
NC: 2025:KHC-K:6603-DB RFA No. 200084 of 2016 HC-KAR "SCHEDULE OF SUIT PROPERTY
1. Land Sy. No. 433/2 measuring 14 acres 28 guntas with L.R. of Rs. 13.38 AND Land Sy.No.432 measuring 29 acres 31 guntas with L.R. of Rs. 13.24 both situated at Aland which is bounded as under:
East : Land of Shashikant Koralli West : Land of Alisaheb Tambak wale South : Land of Siddappa Kharate North : Land of Laxman Khanna Naik Rathod
2. House bearing T.M.C No. 5-7-2 situated at Khandak Gaalli, Aland measuring 37.7" x 42' which is bounded as under
East : Municipal Lane West : House Kareenabee Mahaladbade South: Municipal Way North : House of Mashaq Sab Jawale."
2. The case of the plaintiffs is that they are the daughters and the defendants No.1 to 3 are the sons of Gurulingappa Kharate, who died on 19.09.1997 at Aland.
The mother of the plaintiffs and defendants predeceased their father. The suit properties are ancestral properties. Gurulingappa was survived by the plaintiffs and defendants. There are no other legal heirs. After the marriage, the plaintiffs have been residing in their respective matrimonial houses. There was no partition in -6- NC: 2025:KHC-K:6603-DB RFA No. 200084 of 2016 HC-KAR respect of the suit properties by meets and bounds. They have not forfeited their right/claim in the suit properties. In view of the amended provision of Hindu Succession Act, 2005 (for short 'the Act'), they are having equal share in the suit properties, as the suit properties are ancestral joint family properties. The plaintiffs requested the defendants to give their share. The plaintiffs along with the defendants were jointly enjoying the suit properties as coparceners. But, all of sudden the defendants stopped providing yield of the suit properties to them and hence, they requested the defendants to effect partition, to which the defendants have denied, which resulted in filing of the suit before the trial Court.
3. The defendants appeared through their counsel. The defendant No.3 filed the written statement admitting the case of the plaintiffs and sought for partition and separate possession of his share in the suit properties. However, the defendant Nos. 1 and 2 jointly filed written statement, wherein they admitted the relationship -7- NC: 2025:KHC-K:6603-DB RFA No. 200084 of 2016 HC-KAR between the plaintiffs and defendants, but they denied that the plaintiffs are having any share in the suit properties and they also denied that the plaintiffs are coparceners having equal share in the suit properties. Even though the defendants No. 1 and 2 admitted that the suit properties are ancestral properties, their specific contention is that the suit properties were already partitioned among defendants through oral partition and the property bearing Sy.No.433/2 measuring 6 acres 28 guntas was allotted to the father for his enjoyment till his death with condition that the said property should be returned back to the defendants after the death of their father. However, the defendants No.1 and 2 contended that if the Trial Court comes to the conclusion that the suit of the plaintiffs is liable to be decreed, they may be granted their share in the suit properties by meets and bounds. Therefore, the defendants No.1 and 2 prayed for dismissal of the suit with cost of Rs.10,000/-. -8-
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4. During the pendency of the suit, the defendant No.1 died and hence, his legal representatives defendants No.1(a) to 1(e) being the wife and children of defendant No.1, were brought on record. In support of the case of the plaintiffs, the plaintiff No.2 got herself examined as PW1. She filed her affidavit as evidence in chief examination reiterating the facts averred in the plaint. Moreover, the plaintiffs have produced two RTC extracts and tax assessment in respect to the suit properties as per Exs.P1 to P3. On the other hand, defendant No.1(d) was examined as DW1 in support of the contention of defendant No.1 and 2 and also examined one independent witness by name Billu as DW2.
5. After hearing both the parties and considering the oral and document evidence on record, the Trial Court dismissed the suit of plaintiffs coming to the conclusion that the suit properties are not ancestral properties of the plaintiffs, which resulted in the plaintiffs approaching this Court with the present appeal.
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6. Heard the learned counsel for the appellants/plaintiffs and the learned counsel for the respondents/defendants No.1 and 2. Perused the pleadings of both the parties and also oral and documentary evidence on record. The point that arise for our consideration is:
"Whether the plaintiffs have proved that they are entitled to share in the suit properties and thereby made out sufficient ground to set aside the impugned judgment and decree of the Trial Court as prayed for?"
7. The fact that the plaintiffs and defendants are sisters and brothers, they being the children of Gurulingappa Kharate is not in dispute. It is also not in dispute that the suit properties are standing in the name of the deceased Gurulingappa Kharate. The contention of the plaintiffs is that the suit properties are ancestral joint family properties and they being the coparceners are
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NC: 2025:KHC-K:6603-DB RFA No. 200084 of 2016 HC-KAR entitled to equal share along with the defendants in respect of the suit properties.
8. It is pertinent to note that defendant No.3 admitted the case of the plaintiffs and he has sought for his share in the suit properties, in case the suit is decreed. But the defendants No.1 and 2 denied that the plaintiffs are coparceners in respect of the suit properties. The trial Court while giving reasoning under the impugned judgment has come to the conclusion that the plaintiffs have failed to prove that the suit properties are ancestral joint family properties and that the suit properties devolved on their father from their father's father. However, it is pertinent to note that the trial Court has failed to take note of the fact that the defendants No.1 and 2 in their written statement unequivocally admitted that the suit properties are ancestral properties. When there is admission by defendants No.1 and 2 that the suit properties are ancestral properties, the question of plaintiffs proving the said fact does not arise. At this stage,
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NC: 2025:KHC-K:6603-DB RFA No. 200084 of 2016 HC-KAR it is relevant to note that the Trial Court has lost sight of the provision of 58 of the Indian Evidence Act (now Section 53 of the Bharatiya Sakshya Adhiniyam, 2023), which reads as follows:
"58. Facts admitted need not be proved.- No fact needs to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."
9. Further, as argued by the learned counsel for the plaintiffs, even though the Trial Court has come to the conclusion that the defendants have failed to prove earlier partition among the defendants in respect of suit properties, has committed error in dismissing the suit. The defendants No.1 and 2 produced rough sketch along with their written statement showing the division of property.
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NC: 2025:KHC-K:6603-DB RFA No. 200084 of 2016 HC-KAR But the defendant No.1(d) as DW.1 clearly admitted in his evidence in cross-examination that there was no partition of the suit properties in writing. It is also admitted that in the alleged partition the defendants are not given any share in the suit properties.
10. The defendants No.1 and 2 examined one independent witness by name Billu as DW2 to prove the alleged partition. DW2 filed his affidavit as evidence in chief-examination, wherein he deposed that "all panchas divided the land into 9 parts and each defendants were allowed with 3 parts. We kept hill area nearly 14 acres 31 guntas for grazing etc. jointly for defendants." It is also the evidence of DW.2 that the father of the plaintiffs by name Gurulingappa Kharate retained 6 acres 28 guntas of land for his livelihood during his life, commonly by defendants. But the DW.2 in his evidence in cross- examination has clearly deposed that in the alleged partition, no share was given to the daughters of the deceased Gurulingappa. If the evidence of DW.2 is taken
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NC: 2025:KHC-K:6603-DB RFA No. 200084 of 2016 HC-KAR into consideration, it would be clear that the alleged partition is only for arrangement among the defendants to enjoy the properties separately.
11. Further, even though the DW.2 is alleged to be the pancha of the alleged oral partition, in his evidence in cross-examination he deposed that he did not know the daughters of the deceased Gurulingappa. Moreover, in the cross examination, it is the specific evidence of DW.2 that he did not have any information about the suit and he deposed as per the statement as told by the defendant No.1(d). The relevant portion of the statements is as follows:
ಾಜು ಾ ೆ ಅಂಕುಶ ಇವರ ೇ ೆ ೕ ೆ ೆ ಾನು ಾ " ಾಜು ನು ಯು ೆ ೕ ೆ ಎಂದ ೆ ಸ!.
ಸ! ನನ ೆ ಾ"ೆಯ ಬ ೆ$ ಾವ% ೇ &ಾ' ಇರುವ%(ಲ* ಸದ! ಾಜು ಾ ೆ ಅಂಕುಶ ರವರ ೇ ೆ ೕ ೆ ೆ ಾ ನು ಯು ೆ ೕ ೆ ಎಂದ ೆ ಸ!."
ಸ!
12. Raju @ Ankush is the defendant No.1(d) in the suit. The aforesaid evidence of DW.2 would clearly reveal
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NC: 2025:KHC-K:6603-DB RFA No. 200084 of 2016 HC-KAR that he is not aware of the fact regarding the suit properties and also about the plaintiffs, but he deposed only as told to him by the defendant No.1(d) who is one of the legal representatives/legal heirs of deceased defendant No.1.
13. As observed by the Trial Court in the impugned judgment, it is true that in the RTC extracts at Exs.P1 and P2 and the property tax assessment at Ex.P3, there is no mention that the khata in respect to the suit properties devolved on Gurulingappa Kharate from his father. But as per the documents at Exs.P1 and P2, the khata in respect to the landed properties were mutated in the name of Gurulingappa as 'Pattedar'.
14. As discussed above, when the defendants No.1 and 2, who are the contesting parties, have admitted in their written statement that the suit properties are ancestral properties, the approach of the Trial Court in the impugned judgment in coming to the conclusion that the
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NC: 2025:KHC-K:6603-DB RFA No. 200084 of 2016 HC-KAR plaintiffs have failed to produce any documents to show that the suit properties are ancestral properties and thereby dismissing the suit, does not stand for consideration. Such conclusion falls to the ground on the facts of the case and also in law.
15. When there is no dispute regarding the relationship between the plaintiffs and the defendants and also that the suit properties are ancestral properties, in view of amended provision of Section 6 of the HS Act, the plaintiffs being the daughters of the deceased Gurulingappa Kharate as coparceners are entitled to equal share along with the defendants, who are the sons of deceased Gurulingappa Kharate, in the suit properties.
16. Moreover, it is relevant to refer to the provision of Section 6(1) of the HS Act, which reads as follows:
6. Devolution of interest in co-parcenary property. -- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--
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(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub- section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
17. The above referred provision of law would clearly reveal that unless the defendants prove that there is any testamentary disposition or alienation of the suit property or there was partition among the defendants in writing taken place before 20.12.2004, the plaintiffs being daughters of the deceased Gurulingappa Kharate, as coparceners are entitled to equal share in the suit properties. Hence, the Trial Court has committed error in
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NC: 2025:KHC-K:6603-DB RFA No. 200084 of 2016 HC-KAR dismissing the suit of the plaintiffs under the impugned judgment and decree.
18. For the sake of arguments, even if it is taken into consideration that the suit properties are not coparncery property, it is not in dispute that those properties are belonging to the deceased Gurulingappa Kharate, who is father of the plaintiffs and the defendants. It is also not in dispute that the deceased Gurulingappa died intestate. Hence, on this ground also the plaintiffs being his daughter are entitled to equal share in the suit properties.
19. There is absolutely no material forthcoming from the defendants No.1 and 2 to support the impugned judgment that the Trial Court has rightly dismissed the suit of the plaintiffs. Moreover, it is important to note that even though the Trial Court has rejected the contention of defendants No.1 and 2 regarding the alleged earlier partition, the defendants No.1 and 2 have not chosen to
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NC: 2025:KHC-K:6603-DB RFA No. 200084 of 2016 HC-KAR file any appeal challenging the finding of the Trial Court on issue No.3. Therefore, the plaintiffs have clearly made out sufficient ground to set aside the impugned judgment and decree in the present appeal as prayed for and they have proved that they being the coparceners are entitled to share in the suit properties, those properties being their coparceners joint family properties.
20. In the result, the appeal deserves to be allowed and consequently, answering the above point in the affirmative, we proceed to pass the following:
ORDER
(a) This appeal is hereby allowed.
(b) Consequently, the judgment and decree dated 28.04.2016 passed in O.S.No.49/2011 on the file of the Court of Senior Civil Judge, at Aland, is hereby set aside.
(c) The suit of the plaintiff for the relief of partition is decreed.
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(d) The plaintiffs are entitled to 1/5th share each in the suit properties. The defendants No.1 to 3 are entitled to 1/5th share each in the suit properties.
(e) The preliminary decree for partition shall be drawn accordingly.
(f) No order as to costs.
Sd/-
(H.T. NARENDRA PRASAD) JUDGE Sd/-
(TYAGARAJA N. INAVALLY) JUDGE SMP List No.: 1 Sl No.: 71 CT: SB