Karnataka High Court
Smt. Kasturibai W/O Iranna Teggihalli vs Smt. Kamalabai W/O Bhimshya Kallur And ... on 25 October, 2025
-1-
NC: 2025:KHC-K:6268
RSA No. 7251 of 2013
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.7251 OF 2013 (PAR)
BETWEEN:
SMT. KASTURIBAI W/O IRANNA TEGGIHALLI
AGE: 56 YEARS, OCC: HOUSEHOLD WORK
R/O: ASHOK GOVIND KUTAKANKERI,
AT POST: LALASANGI,
TQ: INDI DIST. BIJAPUR.
...APPELLANT
(BY SRI. D. P. AMBEKAR, ADVOCATE)
AND:
Digitally signed by 1. SMT. KAMALABAI W/O BHIMSHYA KALLUR
NIJAMUDDIN
JAMKHANDI AGE: 51 YEARS, OCC: HOUSEHOLD WORK
Location: HIGH R/O: ASHOK GOVIND KUTAKANKERI,
COURT OF
KARNATAKA AT POST MALABADI
TQ: AFZALPUR, DIST: GULBARGA
2. SMT. VIMALABAI W/O CHANDAPPA NEDALAGI
AGE: 48 YEARS, OCC: HOUSEHOLD WORK
R/O: CHIKKARUGI,
TQ: SINDAGI, DIST: BIJAPUR
3. SMT. SAVITRI W/O SHRIKANT TALAWAR
AGE: 41 YEARS, OCC: HOUSEHOLD WORK
R/O: SINDAGI,
TQ. SINDAGI, DIST. BIJAPUR
-2-
NC: 2025:KHC-K:6268
RSA No. 7251 of 2013
HC-KAR
4. BHAGIRATHI W/O BAYALAPPA NELOGIKAR,
(SINCE DECEASED, BY LRS)
A). MAREWWA D/O BAILAPPA WADI
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O: BASANAL, TQ & DIST: KALABURAGI
B) SUKANYA W/O CHIDANAND JAMADAR
AGE: 36 YEARS, OCC: TAILORING & HOUSEHOLD
WORK,
R/O CHINAMGERI, TQ: AFZALPUR, DIST:
KALABURAGI
C) SHANTAWWA W/O SIDDARAM BIRIKALAGI,
AGE: 34 YEARS, OCC: HOUSEHOLD WORK,
R/O: VIJAYAPUR, TQ & DIST: VIJAYAPUR
D) RENUKA W/O PARASHURAM HONAWAD
AGE: 30 YEARS, OCC: HOUSEHOLD WORK,
R/O: VIJAYAPUR, TQ & DIST: VIJAYAPUR
E) NEELAWWA D/O BAILAPPA NELLAGI,
AGE: 28 YEARS, OCC: HOUSEHOLD WORK,
R/O: BASANAL, TQ & DIST: KALABURAGI
F). SANTOSHIMATA W/O GANESH WADI
AGE: 26 YEARS, OCC: HOUSEHOLD WORK,
R/O: WADI, TQ: CHITTAPUR, DIST: KALABURAGI
G) DIVYA W/O PRADEEP MAHARAD
AGE: 24 YEARS, OCC: HOUSEHOLD WORK
R/O: KUMASAGI, TQ: SINDAGI, DIST: VIJAYAPUR
H) VANI W/O MALLIKARJUN MAHARAD
AGE: 22 YEARS, OCC: HOUSEHOLD WORK,
R/O: KUMASAGI, TQ: SINDAGI, DIST: VIJAYAPUR
I) SAIBANNA S/O BAILAPPA NELLAGI
AGE: 20 YEARS, OCC: HOUSEHOLD WORK,
R/O: BASANAL, TQ & DIST: KALABURAGI
-3-
NC: 2025:KHC-K:6268
RSA No. 7251 of 2013
HC-KAR
5. SMT. PREMALA W/O SIDDAPPA ALLOLLI
AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
R/O: TAMBA, TQ: INDI, DIST. BIJAPUR
6. SMT. GIRIJABAI W/O ASHOK KUTTANKERI
AGE: 44 YEARS, OCC: HOUSEHOLD WORK,
R/O: TAMBA TQ: INDI, DIST. BIJAPUR
...RESPONDENTS
(BY J. AUGUSTIN, ADVOCATE FOR
R1, R3 & R4 (A) TO R4(I);
NOTICE TO R2, R5, R6 IS SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC, PRAYING TO ALLOW THIS APPEAL
AND SET ASIDE THE JUDGMENT AND DECREE DATED
12.03.2013 PASSED BY THE III ADDL. DISTRICT JUDGE,
BIJAPUR DISMISSING THE R.A.NO.85/2010, AND THEREBY
CONFIRMING THE JUDGMENT AND DECREE DATED 23.04.2010
PASSED BY THE CIVIL JUDGE (SR DN) INDI IN
O.S.NO.160/2007, WITH COST THROUGHOUT AND FURTHER
DISMISS THE SAID O.S.NO.160/2007.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 14.10.2025 COMING ON FOR
'PRONOUNCEMENT OF ORDERS' THIS DAY, THE COURT MADE
THE FOLLOWING;
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) Captioned second appeal is by unsuccessful defendant no.2, who has questioned the judgment and decree dated 12.03.2013 passed by the III Addl. District -4- NC: 2025:KHC-K:6268 RSA No. 7251 of 2013 HC-KAR Judge, Bijapur in RA No.85/2010, confirming the judgment and decree dated 23.04.2010 passed by the Civil Judge (Sr. Dn.), Indi in OS No.160/2007, wherein the plaintiff's suit seeking relief of partition against her siblings is decreed by both Courts, thereby granting 1/8th share to each of the plaintiffs. These concurrent judgments are under challenge.
2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.
3. Family tree is as under:
Shantappa Venkubai
(died 1975) (Deft no.2) (Deft no.1)
(died on 22.03.2013 i.e, after
judgment in R.A. but before filling this RSA) Kasturibai Bhagirathibai Kamalabai Vimalabai Premalabai Girijabai Savitribai (Deft-1) (Deft-3) (Pltff-1) (Pltff -2) (Deft-4) (Deft-5) (Pltff-3)
4. The plaintiffs and defendants Nos.1 to 5 are daughters of one Shantappa and Smt. Venkubai -5- NC: 2025:KHC-K:6268 RSA No. 7251 of 2013 HC-KAR (defendant No.1). The plaintiffs, being three of the daughters, instituted O.S. No.160/2007 seeking partition and separate possession of the suit schedule properties, contending that the same are joint family ancestral properties. It was asserted that one Awaapaagouda was the propositus, who had two sons, namely Shivagondappa and Rayagondappa. The said Rayagondappa died on 17.09.1948, leaving behind a son Awwappa, who succeeded to the suit schedule properties. Upon the death of Awwappa, the properties devolved upon the plaintiffs' father Shantappa, who, according to the plaintiffs, continued to hold them as joint family properties. It was therefore contended that the plaintiffs, their mother (defendant No.1), and the other sisters (defendants Nos.2 to 5) together constitute a coparcenary forming an undivided joint Hindu family entitled to equal shares in the suit schedule properties. The Trial Court, on appreciation of the pleadings and evidence, decreed the suit by -6- NC: 2025:KHC-K:6268 RSA No. 7251 of 2013 HC-KAR declaring that each of the plaintiffs is entitled to 1/8th share in the suit schedule properties.
5. The said decree was challenged by defendant No.2, along with her mother Venkubai (defendant No.1), in R.A. No.85/2010, assailing the preliminary decree passed by the Trial Court. During the pendency of the appeal, Venkubai died, and defendant No.2 alone continued to prosecute the appeal. The First Appellate Court, upon reappreciation of the evidence and findings of the Trial Court, dismissed the appeal, thereby confirming the preliminary decree passed in favour of the plaintiffs.
6. Heard the learned counsel appearing for defendant No.2. There is no representation or contest on behalf of the plaintiffs.
7. This Court vide order dated 20.01.2015 has formulated following substantial question of law:
"Whether the Trial Court as well as Appellate Court have committed any serious error in interpreting Ex.D-6 as a stale document or it -7- NC: 2025:KHC-K:6268 RSA No. 7251 of 2013 HC-KAR confers no right on the defendant and whether the said document is not a legal document according to law?"
8. Heard the plaintiff's counsel, perused the substantial question of law and defense set up by defendant no.3.
Findings on substantial question of law:
9. Defendant no.2 in her written statement set up a plea that there was a prior partition in the family on 08.11.2001. Therefore, the Court at first instance framed issue No.2 and the burden was cast on the defendant no.2 to substantiate that there was a partition on 08.11.2001 and in the said partition plaintiffs have relinquished their rights in suit schedule properties, in favour of defendant No.2 by receiving Rs.10,000/- cash each in lieu of their equivalent shares. The Trial Court upon appreciation of oral and documentary evidence held that Ex.D-6 is an unregistered document, purporting to extinguish and transfer rights in a immovable property. The Trial Court -8- NC: 2025:KHC-K:6268 RSA No. 7251 of 2013 HC-KAR therefore answered issue No.2 in the negative and against defendant no.2 and consequently, plea of prior partition was held untenable.
10. The short point that needs consideration at the hands of this Court is as to whether defendant No.2 having set up a plea of prior partition has led in any rebuttal evidence to non-suit plaintiffs. Before this Court adverts to the rebuttal evidence led in by defendant No.2 in order to answer the substantial question of law framed by this Court, this Court deems it fit to revisit the principles of Hindu law on oral relinquishment and oral partition.
11. It is well settled under Hindu law that a member of coparcenary can, by an unequivocal declaration of intention, bring about severance of joint status. Such intention can be expressed even orally and therefore, under customary Hindu law, an oral partition of joint property is recognized and is held to be valid. -9-
NC: 2025:KHC-K:6268 RSA No. 7251 of 2013 HC-KAR
12. A coparcenary may also renounce or relinquish his undivided interest in the coparcenary property. Such renunciation, if oral and complete is permissible and valid under classical Hindu law. The effect of such renunciation is that interest of renouncing coparcenary merges into the shares of the remaining joint family members, thereby enlarging their shares by survivorship.
13. The Hon'ble Apex Court in the case of Kale and others vs. Deputy Director of Consolidation and Others1 recognized that family arrangement and oral partition are specifically favoured in law for maintaining the family peace. The Hon'ble Apex Court observed that such aguments or partitions may be oral and if reduced into writing merely to record the past transaction, the writing does not require registration. Thus, a coparcener oral relinquishment of his share or an oral partition is legally valid and can be proved by conduct, possession and subsequent acts of enjoyment. However, when such a 1 AIR 1976 SC 807
- 10 -
NC: 2025:KHC-K:6268 RSA No. 7251 of 2013 HC-KAR relinquishment is reduced into writing, the nature and language of the document determines whether it requires registration.
14. Under Section 17(1)(b) of Registration Act, 1908, a non-testamentary instrument which create, declare, assign, limit or extinguish any right, title or interest in immovable property of value more than Rs.100/- must be registered. The Transfer of Property Act, particularly Sections 5, 6, 9, 54 and 123 contemplates that transfer of property must be a duly executed and registered, where the value exceeds Rs.100/-.
15. There are catena of judicial precedents, distinguishing oral from written relinquishment. In Roshan Singh and Others vs. Zile Singh and Others2, the Hon'ble Apex Court categorically held that if a document purports to create or declare rights in joint family property, it must be registered. Only when it 2 AIR 1988 SC 881
- 11 -
NC: 2025:KHC-K:6268 RSA No. 7251 of 2013 HC-KAR records a past oral partition, it is a mere memorandum not requiring registration. This view is reaffirmed in subsequent judgments rendered by the Hon'ble Apex Court K. Arumuga Velaiah vs P.R. Ramasamy3.
16. In the light of the principles discussed (supra), in the present case Ex.D-6, though described as a partition deed, purports to extinguish the plaintiffs' share in the suit schedule properties and transfer the same in favour of Defendant no.2. Ex.D-6 does not record oral partition or arrangement, but itself operates in presenti to declare and create rights. Hence, Ex.D-6 squarely falls within the scope of Section 17(1)(b) of Registration Act. Being unregistered, it cannot be received in evidence to prove partition or relinquishment. Under Section 49, it cannot affect the immovable property, nor it can be looked into to prove prior partition. Moreover, there is no evidence of oral partition independent of Ex.D-6. Defendant No.2 has placed heavy reliance on Ex.D-6 and both the Courts have 3 2022 SCC ONLINE SC 95
- 12 -
NC: 2025:KHC-K:6268 RSA No. 7251 of 2013 HC-KAR concurrently held that this document, which is in the form of rebuttal evidence, relied by defendant no. 2 cannot be looked into for want of registration.
17. In the light of the forgoing observations and discussions made by this court, the substantial question of law framed by this Court has to be answered in negative and against the defendant no.2.
18. In view of the discussion made (supra), this Court has also taken cognizance of the fact that defendant no.1/Venkubai is no more. Therefore, in absence of any testamentary arrangement, the preliminary decree drawn by the Courts below needs a partial modification. However, liberty is reserved to plaintiffs to seek modification of the quantification done by the Court of first instance in FDP proceedings by filing an appropriate application. If such an application is filed, the FDP Court shall first modify the decree and then proceed to pass final decree after securing feasibility report.
- 13 -
NC: 2025:KHC-K:6268 RSA No. 7251 of 2013 HC-KAR
19. With these observations, this Court passes the following judgment:
ORDER Appeal is dismissed.
Sd/-
(SACHIN SHANKAR MAGADUM) JUDGE NJ List No.: 2 Sl No.: 1 CT:SI