Karnataka High Court
Sonali W/O Subashchandra And Anr vs Sharanappa S/O Tippanna Sunagar And Ors on 26 September, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC-K:5868-DB
RFA No. 200066 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF SEPTEMBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE T.M.NADAF
REGULAR FIRST APPEAL NO.200066 OF 2021 (PAR/POS)
BETWEEN:
1. SMT. SONALI W/O SUBASHCHANDRA
(D/O SHARANAPPA SUNAGAR),
AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
R/O. KALABURAGI, TQ. AND DIST. KALABURAGI.
2. VIDHYA W/O AMBARAYAKAMANAMANI,
(D/O SHARANAPPA SUNAGAR),
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O. SHAHAPUR TOWN, TQ. SHAHAPUR,
Digitally signed by
DIST. YADAGIR.
BASALINGAPPA
SHIVARAJ
DHUTTARGAON
Location: HIGH
...APPELLANTS
COURT OF
KARNATAKA
(BY SRI. G.V. CHANDRASHEKHAR, SENIOR COUNSEL FOR
SRI. VINAYAK APTE, ADVOCATE)
AND:
1. SHARANAPPA S/O TIPPANNA SUNAGAR,
AGE: 65 YEARS, OCC: AGRICULTURE AND EX. MLA,
2. SMT. SHAKUNTALA W/O SHARNAPPA SUNGAR,
AGE: 59 YEARS, OCC: AGRICULTURE,
3. SMT. NEELAMMA W/O SHARANAPPA SUNAGAR,
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RFA No. 200066 of 2021
HC-KAR
AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
4. MAHESH S/O SHARANAPPA SUNAGAR,
AGE: 28 YEARS, OCC: AGRICULTURE,
5. PRASHANT S/O SHARANAPPA SUNAGAR,
AGE: 26 YEARS, OCC: AGRICULTURE,
6. MANJULA D/O SHARANAPPA SUNAGAR,
AGE: 24 YEARS, OCC: HOUSEHOLD WORK,
7. LAKKUBAI D/O SHARANAPPA SUNAGAR,
AGE: 21 YEARS, OCC: AGRICULTURE,
ALL ARE R/O. SINDAGI TOWN,
TQ. SINDAGI, DIST. VIJAYAPURA-586 128.
...RESPONDENTS
(BY SRI. AMEET KUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI. G.G. CHAGASHETTI, ADV. FOR R1, R3 TO R7;
R2-SERVED)
THIS RFA IS FILED U/S. 96 OF THE R/W ORDER 41 RULE
1 OF CIVIL PROCEDURE CODE, i) CALL FOR RECORDS. ii) SET
ASIDE THE JUDGMENT AND DECREE DATED 15.02.2021, IN OS
No.66/2018 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE
AND JMFC AT SINDAGI, DISMISSING THE SUIT OF THE
PLAINTIFF AND ALLOW THE APPEAL AND CONSEQUENTLY
DECREE THE SUIT AS AGAINST THE RESPONDENTS. iii)
AWARD COST OF PROCEEDINGS TO APPELLANT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 30.08.2025 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
AND
HON'BLE MR. JUSTICE T.M.NADAF
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NC: 2025:KHC-K:5868-DB
RFA No. 200066 of 2021
HC-KAR
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE T.M.NADAF) This appeal is by the unsuccessful plaintiffs under Section-96 of CPC, calling in question the judgment and decree dated 15.02.2021, in Original Suit No.66/2018, passed by the Additional Senior Civil Judge and JMFC, Sindagi, at Sindagi, whereby the suit filed by the plaintiffs came to be dismissed.
2. The parties will be referred to as per their ranking before the Trial Court for easy reference.
3. A brief outline of facts leading to filing of this appeal are as under:
As per plaintiff: The appellants are the daughters of Sharanappa- defendant no. 1 through his first wife Smt.Shakuntala-defendant No.2. Defendant no.3 is the second wife of defendant No.1 and defendant nos.4 to 7, are the sons and daughters of defendant no.1, through his -4- NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR second wife. The plaintiffs and defendant Nos.1 and 2 constitute an Undivided Joint Hindu Family and the suit schedule properties are the ancestral joint family properties of the parties.
4. The suit properties were acquired by the defendant no.1, through his father by name Tippanna Sunagar. The defendant no.1 and his brother Bhimaraya Sunagar and their mother Murigemma Sunagar have compromised the matter in the suit bearing O.S.No.78/2016, where under the suit schedule properties have fallen to the share of defendant No.1. As such, the suit properties are the ancestral joint family properties of the plaintiffs and defendant No.1. After the compromise, defendant No.1 has purchased the property bearing Survey No.19/1 in the name of defendant No.3. As such, the said property is also a joint family property. It is their further contention that in suit in O.S. No.78/2016, the plaintiffs were not made as parties. Defendant No.1 has partitioned the said properties in the compromise which -5- NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR has taken place in the above suit along with his brother and mother, including defendant Nos.4 and 5. As the suit schedule properties being ancestral joint family properties, defendant No.1 has no exclusive right over the same. They have further stated that the compromise entered in O.S.No.78/2016 is behind their back and without their knowledge. As such, the same are not binding on the shares of the plaintiffs, since the plaintiffs are married and residing with their respective husbands after their marriage. In the absence of the plaintiffs, the suit was compromised in O.S.No.78/2016. The plaintiffs after noticing the same, demanded the defendants to allot their share, however, defendant No.1 refused to allot their shares, which made the plaintiffs to approach the trial Court, by filing a suit in O.S.No.66/2018, claiming their share i.e., 1/3rd share in the suit schedule properties.
5. In pursuance of the suit summons, the defendants appeared through their respective counsels -6- NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR and defendant No.1 has filed the written statement and defendant Nos.3 to 7 have adopted the written statement of defendant No.1. Defendant No.2 who is the mother of the plaintiffs filed her consent written statement and also prayed for her legitimate share in the suit schedule properties. Defendant No.1, in his written statement specifically denied the case of plaintiffs and stated that the properties shown in the suit schedule are neither ancestral nor joint family properties of the plaintiffs and the defendants. As such, the plaintiffs cannot in law maintain the suit against him during his life time. The relationship between the parties are admitted as shown in the genealogy, however, denied that the plaintiffs have any right and share in the suit schedule properties. The suit filed during his lifetime is premature and not maintainable and liable to be dismissed.
6. It is the further contention of defendant no.1 that his mother Murigewwa, wife of Tippanna Sunnagar, -7- NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR out of her earnings had purchased (i) R.S.No.997/1, measuring 10 acres, situated at Sindagi Town for a valuable consideration of Rs.2,00,000/-, from its previous owner under a registered sale deed dated 23.03.2002. Thereafter, his mother purchased another property (ii) bearing No.997/2C, measuring 4 acres, under a registered sale deed, dated 23.03.2002 for a valuable consideration of Rs.80,000/- and (iii) survey No.997/2A, measuring 5 acres, 08 guntas situated at Sindagi Town, also purchased by his mother under a registered sale deed, dated 23.03.2002 for a valuable consideration of Rs.1,04,000/-.
(iv) So also the land measuring 4 acres in Survey No.997/2B, purchased by his mother under a registered sale dated 23.03.2002 for a valuable consideration of Rs.80,000/-. In all, the aforesaid four properties were purchased by his mother on her own and they are the self- acquired properties of his mother by name Murigewwa. In these circumstances, the suit claiming partition in the self- -8-
NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR acquired properties of Murigewwa i.e., grandmother of the plaintiffs is misconceived in law and liable to be dismissed.
7. It is his further contention that any property which has been purchased in the name of female becomes her self-acquired property and such properties in the hands of female cannot be either ancestral or joint family properties and plaintiffs have no right to claim shares in the said properties. It is the further contention of defendant no. 1, that his mother Smt.Murigewwa, out of love and affection, thought of making certain arrangements in respect of her self-acquired properties stated supra and settled the same in favour of defendant nos.4 and 5, since they are looking after said Murigewwa. However, before she could take any action in that regard, brother of defendant no.1, by name Bhimaraya has instituted a suit in O.S.No.78 of 2016, before the Civil Court claiming share in respect of the self-acquired properties of Smt.Murigewwa along with other lands. Due -9- NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR to intervention of friends and elders the matter was settled and ended in compromise.
8. Smt. Murigewwa with an intention to settle the properties purchased by her stated supra, in favour of defendant Nos.1, 4 and 5, in the said compromise transferred the land bearing survey No.997/1, measuring 4 acres, exclusively in favour of defendant No.1 and transferred the possession. Further, Smt.Murigewwa transferred the suit land bearing survey Nos.997/2, 997/3 and 997/4 jointly in her name and in the name of defendant No.4. As such, the property in survey No.997/1, is the exclusive and self-acquired property of defendant No.1 and the lands in survey Nos.997/2, 997/3 and 997/4, becomes separate properties of defendant Nos.1 and 4. In these circumstances, the plaintiffs during the lifetime of defendant No.1 cannot claim any share in the separate properties as properties stated supra are not ancestral properties or joint family properties of the plaintiff,
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR defendant No.1 and defendant No.4 as such, the suit is liable to be dismissed as not maintainable.
9. Defendant No.1 further states that the land bearing survey No.63, measuring 5 acres, 30 guntas situated at Bandal village, has been purchased by defendant No.4 out of his own earnings and also with the financial help from his brother-in-laws and maternal grandmother under a registered sale deed, dated 27.9.2003 for a valuable consideration of Rs.1,07,000/-. As such, the said survey No.63, of Bandal village is the self-acquired property of defendant No.4. Out of love and affection, defendant No.4 under a oral family arrangement, transferred the suit land in favour of defendant No.5 which is evident from M.R. No.H-44/2016- 2017. In these circumstances, defendant No.5 by virtue of oral family arrangement made by defendant No.4 has acquired exclusive title, possession and interest over the land bearing survey No.63 of Bandal Village in Sindagi taluka. The said land has been confirmed in favour of
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR defendant No.5 in compromise decree passed in O.S.No.78/2016 and accordingly the claim of partition is the said land is not maintainable and liable to be rejected.
10. It is his further case that defendant No.3 - Neelamma out of her own earnings and also financial help lent by her brother, has purchased suit land bearing Survey No.19/1, measuring 11 acres, 06 guntas situated at Sindagi town under registered sale deed, dated 12.05.2013, for a valuable consideration of Rs.2,35,000/-. As such, the same is the self-acquired property of the said defendant No.3. He has further submitted that in view of the settled position of law the property standing in the name of female will become her self-acquired property and not liable for partition.
11. It is his further contention that since the plaintiffs did not admit defendant No.3, 4 and 5 either as members or coparceners of the family, as such, they cannot claim in law their share in the self-acquired properties of defendant Nos.3, 4 and 5. The property in
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR survey no.19/1 is not the subject matter of suit in O.S.No.78/2016, as plaintiffs and defendants therein never treated the said properties as joint family properties.
12. It is the further contention of defendant No.1 that, his sister by name Gourawwa was married with one Malkappa. The father of Malkappa by name Ningappa out of his own earnings and savings has purchased the land bearing survey Nos.23 + 28, measuring 29 acres, 16 guntas under a registered sale deed, dated 11.10.2003 and it is the self-acquired property of said Ningappa. The said Ningappa out of love and affection towards defendant Nos.4 and 5 and also Ashok and Appaji, who are the sons of Bhimaraya Sunagar, in a oral family arrangement cum- partition transferred the said lands in favour of defendant Nos.4, 5, Ashok and Appaji which is evident from M.R.No.155/2005-2006 and settled the property in their favour. As such, the said property is neither ancestral nor joint family property as the defendant No.1 has not
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR inherited the said property either through their father or from their grandfather, or from their great grandfather.
13. In the compromise decree passed in O.S.No.78/2016, the defendant Nos.4 and 5 and Ashok and Appaji partitioned the properties into two parts i.e., East to West and Southern strip measuring 14 acres, 28 guntas, has been allotted to the share of defendant Nos.4 and 5 and remaining northern area measuring 14 acres, 28 guntas has been jointly allotted to Ashok and Appaji.
14. In the suit bearing O.S.No.78/2016, the lands stated supra never been treated as the joint family property, but it has been treated as joint family property of defendant Nos.4, 5 and Ashok and Appaji, as such, they are the self-acquired property of the aforesaid defendants and others and plaintiffs have no pre-existing right in the suit schedule properties and the same is not amenable for partition.
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR
15. It is the further contention of defendant No.1 that his brother by name Bhimaraya is a Class-I contractor and out of his earnings he has purchased 4 acres of land in Revenue Survey No.998/2, totally measuring 8 acres under a registered sale deed dated 23.03.2002, as such it is the self-acquired property of Bhimaraya. The said Bhimaraya out of love and affection transferred the property stated supra in favour of defendant No.4 and 5 under a oral family agreement and partition. As such, the plaintiffs have no right to claim the partition in the said properties.
16. So far as the property situated in Survey No.998/1, and survey No. 998/4 measuring 4 acres neither belong to him nor the family, as such, the same is not available for partition. It is the further contention of defendant No.1 that his father by name Thippanna out of his own earnings has purchased land bearing Survey No.810, measuring 23 acres, 12 guntas of Sindagi town under a registered sale deed and as such it is his self-
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR acquired property. In a family arrangement-cum-oral partition between Thippanna (father of defendant No.1) and his son Bhimaraya, the land as stated above has been divided to two strips one on the northern strip measuring 5 acres, allotted to Bhimaraya and Thippana retained southern Strip measuring 18 acres, 12 guntas. Subsequently, the property allotted to Bhimraya re- numbered as Survey 810/1, and property allotted to Thippana as R.S.No.810/1.
17. In the compromise decree passed in O.S No.78/2016, eastern strip measuring 2 acres, has been given to the share of defendant no.1 by Bhimaraya out of love and affection and retained western strip measuring 3 acres, in R.S. No.810/1, as such, the land stated above is the self-acquired property of defendant no.1. It is further contended by defendant no.1 that subsequent to the demise of Thippanna, defendant no.1, his brother Bhimraya and his mother Smt.Murigewwa and his sister succeeded to southern strip measuring 18 acres and 12
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR guntas in R.Survey No.810/2. Thereafter, the brother, sister and mother of defendant no.1 relinquished their share in the land supra in his favour, as such, the property becomes individual and independent property of defendant No.1 and not become either ancestral or joint family property of the plaintiffs.
18. It is the further contention of defendant no.1 that out of No.810, measuring 23 acres, 12 guntas of Sindagi town, defendant No.1 has sold 2 acres of land on the western side in favour of Taluka Gangammathasthra Samaj Sevas, Sindagi through a registered sale deed dated 09.07.2001. The defendant No.1 has become the President of said Sangha and is running an education institution in the said land. The land sold in favour of Sangha supra was renumbered as Survey No.810/1, measuring 2 acres, 810/2 measuring 5 acres in the name of Bhimaraya and 810/3 measuring 16 acres, 12 guntas in the name of defendant No.1.
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR
19. In the compromise decree stated supra, the land bearing survey No.810/3 measuring 16 acres, 12 guntas has been divided into two strips, western strip measuring 9 acres, 18 guntas was allotted to Bhimaraya and Eastern Strip measuring 7 acres, 4 guntas has been retained by defendant Nos.1 and 4, as such, these properties stated supra are also not available for partition. It is the further contention of defendant no.1, that out of his own earnings and saving, he has purchased land measuring 5 acres,5 guntas under registered sale deed for a valuable consideration Rs.7,15,000/- and the said land is a self-acquired property. In the compromise decree passed in O.S.No.78/2016 the defendant No.1 out of love and affection voluntarily transferred an area measuring 4 acres, out of 5 acres, 5 guntas in favor of his brother Bhimaraya and retained 1 acres, 5 guntas towards west, as such the suit is not maintainable in respect of this property also. Thereafter, on 13.02.2007, Sri.Bhimaraya has filed an application before the Deputy Commissioner,
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR Vijayapura seeking to convert the land measuring 4 acres, 18 guntas in survey No.817 situated at Sindagi, which he had purchased under a registered sale deed, from agricultural usage to non-agricultural usage. The Deputy Commissioner after holding an enquiry in terms of law passed an order dated 12.07.2007 permitting to convert the land to non-agricultural usage. After the conversion house sites were formed on the said land, a site shown as item No.3, in Schedule-AA has been allotted to defendant no.1 by Bhimaraya under the compromise decree in O.S.No.17/2016. Sri.Bhimaraya on his own purchased an area measuring 1 acre in R.S.No.276/1B under a registered sale deed and got it converted to non- agricultural land and laid residential sites subsequent to the order of conversion dated 01.06.2007.
20. Under the compromise decree, the said Bhimaraya has allotted suit item No.4 in Schedule AA (a site) in favour of first defendant. The said Bhimaraya out of his own earning purchased land in R.S. No.1032/1,
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR measuring 3 acres, 3 guntas situated in Sindagi Town and got it converted into non-agricultural purpose and laid residential sites on the said land. Suit item Nos.1 and 2 carved out of the aforesaid survey numbers were allotted to defendant no.1 in the compromise decree stated supra. So also the said Bhimaraya out of his own earnings acquired suit item No.5 under the sale deed and in the compromise decree he has transferred the same in favour of defendant No.1. It is further contended that suit item No.6 an open space purchased by Bhimraya under sale deed out of his own earnings. In the compromise decree stated supra allotted northern ½ portion to defendant No.1 and retained southern ½ portion of the said land. As such, these properties are separate properties of defendant No.1 and not amenable for partition.
21. Defendant No.1 further contended that land bearing Survey No.119/A 3B, measuring 37 guntas situated in Sindagi town, has been relinquished in favour of defendant No.1, by his father, Merigawwa and brother
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR Bhimaraya, on 10.01.1994 under a registered relinquishment deed. Accordingly, the said property shown as item Nos.7 and 9 are the separate properties and not amenable for partition. So far as suit item No.10 and 11 shown in schedule purchased by Bhimaraya out of his own earnings under registered sale deed and transfer the same in favour of defendant No.5 in compromise decree. As such, the said property becomes separate property of defendant No.5, the plaintiffs have no rights to seek partition in these two lands.
22. The defendant No.1 further contended that he has performed the marriage of both the plaintiffs incurring huge expenditure and in the marriage he has given 35 tholas to plaintiff No.1 and 50 tholas of gold to plaintiff No.2 and taken care of medical expenses of plaintiff No.1 even after marriage. The suit is filed at the instigation of ill-wishers of defendant No.1 just to defame him in the society and the suit filed is a collusive suit between
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR plaintiffs and defendant No.2. The defendant no.1 by way of gift given a car worth of 10,00,000/- to plaintiff No.1 and Rs.12,50,000/- for the purpose of purchasing gold and also Rs.15 lakhs for hospital. The defendants further contended that he has purchased 1 plot situated at Gulbarga worth Rs.30 lakhs and later gifted the same to the plaintiff no.2. It is the specific case of defendant no.1 the suit is not maintainable as all the suit schedule properties are the self-acquired properties of defendant No.1, defendant nos.4 and 5 and Bhimaraya (brother of defendant No.1) and as such they are not amenable for partition and they cannot be considered as either joint family property or ancestral properties and sought to dismiss the suit with exemplary cost.
23. The defendant nos.3 to 7 have adopted the written statement filed by defendant no.1. The trial Court subsequent to completion of pleadings framed the following issues:
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR "1. Whether plaintiffs proves that the suit schedule properties are ancestral and joint family properties of themselves and defendants-1 and 2 and they constituted Hindu undivided joint family?
2. Whether defendant-1 proves that, the suit properties are self-acquired properties of himself and defendants-4 and 5 as contended in the written statement?
3. Whether defendant-1 proves that suit Sy. No.19/1, measuring 11 acres is the self-acquired property of defendant-3 i.e., Neelamma as contended in the written statement?
4. Whether plaintiffs are entitled for relief/s as prayed in the suit?
5. What order or decree?"
24. The plaintiffs in order to prove their case was examined PW-1 and PW-2 and produced 67 documents marked as Exhibits-P1 to P57. The defendants in support of their case examined defendant No.1 as DW1 and produced 26 documents as Exhibits-D1 to D26. The Trial Court after hearing both the sides proceeded to answer the issues framed supra, in the following manner:
"Issue-1 - In the negative;
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RFA No. 200066 of 2021
HC-KAR
Issue-2 - In the affirmative;
Issue-3 - In the affirmative;
Issue-4 - In the negative;
Issue-5 - As per final order; for the following"
25. The trial Court was of the opinion that the plaintiffs have failed to prove that the properties are ancestral and joint family properties of plaintiffs and defendant No.1. The reason for the trial Court to answer the issue No.1 in negative is stated at paragraph Nos.25 to
41. The Trial Court in the said paragraphs has held that the plaintiffs except relying on the contents of compromise decree passed in O.S.No.78/2016, absolutely have not placed any documents before the Court to show that the suit schedule properties are ancestral and joint family properties.
26. During the course of the arguments before the Trial Court, the learned counsel appearing for the plaintiffs mainly relied on the contents of the compromise decree passed OS No.78 of 2016 and relied on Exhibit-P4 i.e., the
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR compromise petition stated supra, wherein at page No.6, paragraph No. 2, the parties to the said suit have admitted that the contents stated in the plaint therein as true, so also the genealogy. Further, they have admitted that these properties have come from the family elders, so also certain properties were purchased out of joint nucleus. Accordingly, all the properties are joint family properties. Further, the learned counsel for the plaintiff has submitted relying on the cross-examination of DW-1 in last paragraph of page No.2 to contend that DW-1 admitted the compromise arrived in suit stated supra as true. The Trial Court has extracted both the contents at paragraph Nos.25 and 26 of its judgment. The contents stated in the said paragraph, which are in Kannada are extracted hereunder, for easy reference:
"2. ªÁ¢ ºÁUÀÆ ¥Àw æ ªÁ¢AiÀÄgÀÄ zÁªÁzÀ ªÁzÀ¥v À z Àæ ° À £ è À J¯Áè ¸ÀAUÀwUÀ¼ÀÄ ¤d EgÀÄvÀª Û É CAvÁ ªÁ¢ ¥Àw æ ªÁ¢AiÀÄgÀÄ M¦àPÉƼÀÄîvÁÛg.É ªÀÄvÀÄÛ ªÀA±ÁªÀ½AiÀÄÄ ¸Àj EgÀÄvÀz Û É CAvÁ M¦àPÉƼÀÄîvÁÛg.É ªÀÄvÀÄÛ zÁªÁ D¹ÛU¼ À ÀÄ »jAiÀÄjAzÀ §AzÀ D¹ÛU¼ À ÀÄ ªÀÄvÀÄÛ PÀÆqÀÄ PÀÄlÄA§zÀ zs£ À ¢ À AzÀ PÉ®ªÀÅ D¹ÛU¼ À ÀÄ Rjâ ªÀiÁrzÀ D¹ÛU¼ À ÀÄ J®èªÀÅ
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NC: 2025:KHC-K:5868-DB
RFA No. 200066 of 2021
HC-KAR
PÀÆqÀÄ PÀÄlÄA§zÀ D¹ÛU¼
À ÀÄ EgÀÄvÀª
Û É CAvÁ ªÁ¢ ºÁUÀÆ ¥Àw
æ ªÁ¢AiÀÄgÀÄ
M¦àPÉƼÀÄîvÁÛg.É " (in paragraph No.25) XXX XXX "............ C¸À®Ä zÁªÁ £ÀA.78/2016 gÀ°è ªÀiÁrPÉÆAqÀ gÁf «µÀAiÀÄUÀ¼ÄÀ ¸Àj EgÀÄvÀª Û .É ¸Àzj À zÁªÉAiÀÄ°è ªÁ¢AiÀÄgÀ£ÀÄß ¥ÀPUÀë ÁgÀgÀ£ÁßV ªÀiÁqÀzÉ ªÉÆøÀ¢AzÀ rQæ ªÀiÁr¹PÉÆArzÉÝÃªÉ JAzÀgÉ ¸ÀjAiÀÄ®è. zÁªÁ¹ÛU¼ À ° À è ºÁUÀÆ gÁf rQæAiÀÄ°è ºÉýgÀĪÀ D¹ÛU¼ À °À è ªÁ¢AiÀÄjUÉ ¥Á®Ä PÉüÀĪÀ ºÀPÀÄÌ EzÉ JAzÀgÉ ¸ÀjAiÀÄ®è."
(in paragraph No.26)
27. The trial Court has held that except relying on the contents of the said compromise decree, the plaintiffs have not produced any other independent evidence to show that the properties are the joint family properties. It was further held that the admissions by defendant no.1 regarding the contents of compromise petition in OS No.78/2016 as true and correct, would not come to their aid and the same is hit by Section-145 of the Indian Evidence Act. The reason being that, it is unfair to contradict a witness by his previous statement without bringing the statement of the documents to the notice of the witnesses and affording an opportunity to him to tender his explanation as to why he had made the previous
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR statement or to clear off the point of ambiguity or dispute. The principles of fairness is embodied in Section-145 of the Indian Evidence Act, requires that, before the admission can be proved, the attention of the witnesses must be drawn to the passage in his statement by which it is intended to contradict him, as the mandate of Section-145 of the Indian Evidence Act demands that the person who has been cross-examined on any previous statement to draw the attention of the witness to the said portion of admission or statement by which it is intended to contradict him.
28. The Trial Court further held that in the case on hand, there is no such attention of witness i.e., DW-1 is brought to the specific portion of alleged admission available in Exhibit-P4, as such, the said alleged admission cannot be taken into consideration and it is not an admission in the eye of law. Since there is no opportunity given to DW-1 to tender his explanation as to why he has made such admission or in order to clear the point of
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR ambiguity or dispute. In these circumstances, the trial Court was of the opinion that except relying on the said document, no independent evidence has been placed to prove the properties as ancestral property. The plaintiffs have failed to discharge the burden cast upon them under the Evidence Act, to seek any relief before the Court. As per the provisions on Evidence Act, it is for the plaintiff to prove his case on his own grounds, by placing independent evidence, where the document relied by the person regarding the previous admission creating ambiguity, as to the status of the property.
29. The trial Court based its reasons on the judgments submitted on behalf of the defendants and has held that in terms of the judgments of the Hon'ble Privy Council, as well as the Hon'ble Apex Court, especially stated in its paragraph nos. 21, 22 and 23, that it is trite that the burden is on the person who alleges the existence of the Hindu Undivided Family to prove the same and the proof required is not just in respect of jointness of family
- 28 -
NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR but also with respect to the fact that the property concerned belongs to Hindu Undivided Family, unless there is material on record to show that the property is a nucleus of Joint Hindu Family or that it was purchased through funds coming out of this nucleus. In the absence of such evidence, merely on relying on the compromise decree which is not clear as to the status of property whether it is joint family or ancestral property in the absence of independent witness, the plaintiffs have failed to prove their case.
30. Further at paragraph no.38, the Trial Court has held that since the plaintiffs have not admitted that the defendants nos. 4 to 7 as coparceners and joint family members etc., under such circumstances, the question of allotting shares in the properties belonging to defendant nos.3 and 4 would not arise. Since the plaintiff has not discharged the initial burden cast / shouldered on the plaintiff regarding the fact that the suit properties are the
- 29 -
NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR ancestral and joint family properties, the plaintiffs are not entitled to claim any rights/shares in the said properties.
31. Further, the trial Court has held that in the absence of discharging the primary initial burden by the plaintiff, the question of shifting the onus on the defendants to prove regarding the self-acquisition of the property would not arise, since the alleged admissions available in Exhibit-P4 cannot be taken into consideration, as the same is not proved in accordance with law and proceeded to hold that in the absence of any admissible evidence, without any documentary evidence, merely on the basis of certain admissions stated supra, to prove that the suit schedule properties are ancestral properties, the said admission cannot be taken into consideration to hold that the properties are ancestral properties. In these circumstances, the plaintiffs have miserably failed to prove that the suit schedule properties are ancestral joint family properties so also purchased out of joint family nucleus and proceeded to dismiss the suit. It is this judgment and
- 30 -
NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR decree passed by the trial Court is called in question before this Court.
32. Heard Sri.G.V.Chandrashekhar, learned Senior Counsel for Sri. Vinayak Apte, learned counsel appearing for the appellants and Sri.Ameet Kumar Deshpande, learned Senior Counsel for Sri. G.G. Chagashetti, learned Counsel for respondent Nos.1, 3 to 7, respondent No.2 though served remained unrepresented.
33. After hearing both the sides on the merits of the case, the matter was reserved for judgment on 30.08.2025 permitting the learned counsel on both the sides to file their short submissions and judgments if any, on the contentions raised. On 01.09.2025, both the parties have filed the judgments relied on by them, as well as short submissions.
34. Sri.G.V.Chandrashekhar, learned Senior Counsel appearing on behalf of the learned counsel for the appellants, taking us through the judgment and decree, as
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR well as the entire material placed before the trial court, submits that the relationship between the parties are not in dispute. The father of the defendant No.1 by name Thippanna, had inherited the property from his ancestors. The said Thippanna had 2 sons and 6 daughters, including defendant no.1, Bhagama, Gangubai, Mallamma, Bhimaraya, Kasturibai and Gauravva. Defendant no. 1 was the Karta of the family. The brother of defendant no. 1 by name Bhimaraya filed a suit for partition in OS No.78 of 2016, in respect of the suit schedule properties stated therein, which includes the suit schedule properties stated in the present suit. Certain properties were the ancestral properties and all other properties purchased are out of nucleus, earned by the family from the ancestral properties. In the suit in O.S. No. 78 of 2016, there was a clear admission in the plaint that the suit properties were inherited from the ancestors and also purchased out of joint family nucleus. To the said suit the plaintiffs who are daughters through first wife of defendant no.1 were not
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR made as parties. However, the sons through second wife were made as parties as defendant nos. 12 to 13 in the said suit. The suit stated supra ended in compromise, wherein all the parties to the suit have admitted that the contents stated in the plaint are true and correct, regarding the status of properties i.e., the properties are ancestral properties. In the said suit, many of the properties which are the suit schedule properties in the present suit, fallen to the share of defendant nos. 1, 4 and
5.
35. In the said suit, the parties have admitted that the properties were inherited from 'Hiriyaru'. The learned Senior Counsel, relied on the Mysore University, English to Kannada Dictionary, Revised Volume-I (A to D) to contend that 'Hiriyaru' means ancestor. In the extract of the said Dictionary he has relied on the word 'ancestor', 'ancestral' and 'ancestry' to contend that they mean in Kannada as 'Hiriya, Hirika, Poorvika, Poorvaja, Hindhinavaru, Poorvajara, Pithrajitha, Hirige, Vamshaparampare,
- 33 -
NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR Hirikaru, Poorvakar. The words in the dictionary relied on are extracted hereunder for easy reference:
"ancestor Då£ï¸É(¹)¸Àg Ö ï £Á. 1. »jAiÀÄ: »jÃPÀ: ¥ÀÆ«ðPÀ: ¥ÀƪÀðd. 2. ªÀÄÆ® gÀÆ¥À: ºÀ¼A É iÀÄ gÀÆ¥À: ¥ÀƪÀðgÀÆ¥À: ªÀåQÛ, ªÀ¸ÀÄÛ, ¨sÁªÀ£,É ªÉÆ.ªÀÅUÀ¼À »AzÀt gÀÆ¥À.
ancestral Då£ï¸É¸ÀÖç¯ï UÀÄ. 1. »A¢£Àªg À :À ¥ÀƪÀðdgÀ. 2. ¦vÁæfðvÀ(zÀ). 3. ªÀÄÆ® gÀÆ¥Àz:À DzÀå (gÀÆ¥Àz)À .
ancestry Då£ï¸É(¹)¹Öç £Á. 1. (ªÀÄÄ. PÀİãÀgÀ «ZÁgÀz° À )è ªÀÄ£Év£À :À ºÀ¼ª À ÉÆgÉ:
PÀÄ®: ªÀA±À: ¸ÀAvÀw: ¦Ã½UÉ: ªÀA±À¥g À A À ¥Àg.É 2. »jÃPÀgÀÄ: ¥ÀÆ«ðPÀgÄÀ : ¥ÀƪÀðdgÀÄ: ¦vÀȪÀUð À . 3. ºÀ¼A É iÀÄ ªÀÄ£ÉvÀ£:À ¥ÁæaãÀ ªÀA±À. 4. »A¢£À ZÀjvÉ:æ ¥ÀƪÉðÃwºÁ¸À."
36. Further, he has relied on the same dictionary stated supra at Revised Volume-II (E to L) wherein 'forefather' is stated in Kannada, which reads as under:
"forefather ¥sÉÆÃgï ¥sÁzÀgï £Á. 1. (¸Á.§ªÀ.zÀ°è ¥Àæ.) (M§â£À vÀAzÉAiÀÄ AiÀiÁ vÁ¬ÄAiÀÄ) ¥ÀƪÀðd: ¥ÀÆ«ðPÀ: ªÀÄÆ®-¥ÀÄgÀĵÀ. 2. (MAzÀÄ PÀÄlÄA§zÀ AiÀiÁ PÀÄ®zÀ) »jAiÀÄ: »jÃPÀ: »A¢£À vÀ¯ª É ÀiÁj£Àª.À "
37. Relying on the said meaning in the dictionary, the learned Senior Counsel contends that in the plaint, the plaintiffs have clearly stated that Thippana Suragera i.e., father of defendant no. 1 had ancestral properties and out of nucleus earned through the said properties, other
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR properties have been purchased by the family. In the suit which ended in compromise stated supra i.e., O.S.No.78 of 2016 filed by Bhimaraya against the defendant No.1 and Murigemma Sunagar and others, there is a clear admission stating that the properties are ancestral properties. Though the defendant no.1 in his written statement contended that all the properties are the self-acquired properties of the defendant nos. 1, 4 and 5, however, in view of categorical admission in earlier suit i.e., O.S.No. 78 of 2016, the properties are the ancestral properties, wherein there is a categorical word used as 'Heriyaru', to contend that the properties were inherited from 'Hiriyaru' i.e., ancestors and many of the other properties were purchased out of joint family business.
38. The defendant no.1 who has been examined as DW-1 in his cross-examination admitted the contents of the compromise petition as true. The trial Court has failed to consider this and erroneously dismissed the suit on the ground that the admission in the earlier pleadings and the
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR admission in the compromise petition have not been confronted to the witness and same was hit by Section- 145 of Indian Evidence Act. This finding of the trial Court is erroneous.
39. The finding of the trial Court at paragraph no. 30 of the judgment is against the established principles of the law laid down by the Hon'ble Apex Court, wherein the Hon'ble Apex Court, held that - an admission by pleadings by a party need not be confronted to him in the witness box and relied on the following judgments:
i) Bharat Singh And Anr vs Bhagirathi1
ii) Union Of India vs Moksh Builders And Financers Ltd. And Others2
iii) Mrityunjoy Sett(D) By Lrs vs Jadunath Basak (D) By LRS3 1 1966 AIR 405 2 1977 AIR 409 3 2011 (11) SCC 402
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR
40. He has further contended that the trial Court has failed to consider that the words used in O.S.No.78 of 2016 in the plaint as well as compromise petition that the properties were inherited from 'Hiriyaru', which as per the dictionary means 'ancestors'. In these circumstances, the properties are to be construed as 'ancestral properties'. In the presence of the said admission, the finding of the trial Court that the contents were not confronted and cannot be construed as ancestral properties, notwithstanding the admission is legally not sustainable.
41. In view of the categorical admission in the compromise petition that the contents stated in the plaint are true/correct, wherein in the plaint it is clearly stated that the properties were inherited through their 'Hiriyaru'. He relied on the contents stated in the plaint in O.S.No.78 of 2016 and stressed on paragraph No.3, wherein the opening words there is a clear statement that the suit schedule properties are the properties inherited through their ancestors and some properties were purchased out of
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR the nucleus of the said properties. For easy reference, the said three lines are extracted as under:
"3. ªÁ¢ ºÁUÀÆ ¥Àw æ ªÁ¢AiÀÄgÀ £ÀqÀÄªÉ »jAiÀÄjAzÀ §AzÀ D¹ÛU¼ À ÄÀ ºÁUÀÆ ¸ÀAAiÀÄÄPÀÛ PÀÄlÄA§zÀ zs£ À ¢ À AzÀ PÉ®ªÀÅ Rjâ ªÀiÁrzÀ D¹ÛU¼ À ÀÆ EzÀÄÝ CªÀÅUÀ¼À «ªÀgÀ F PɼV À £ÀAvÉ EgÀÄvÀªÛ .É "
42. Further, he has relied on the compromise petition filed in the suit O.S. No.78/2016 under Order- XXIII, Rule 3 of CPC, wherein at paragraph no.2 there is a clear admission admitting that the content stated in the plaint are true and correct. Further, that the properties were inherited through their ancestors and some properties purchased through the nucleus of those properties inherited by the ancestors. The said paragraph no.2 of the compromise petition are extracted for easy reference:
"2. ªÁ¢ ºÁUÀÆ ¥Àw æ ªÁ¢AiÀÄgÀÄ zÁªÁzÀ ªÁzÀ¥v À zÀæ À°£ è À J¯Áè ¸ÀAUÀwUÀ¼ÄÀ ¤d EgÀÄvÀªÛ É CAvÁ ªÁ¢ ¥Àw æ ªÁ¢AiÀÄgÀÄ M¦àPÉƼÀÄîvÁÛg.É ªÀÄvÀÄÛ ªÀA±ÁªÀ½AiÀÄÄ ¸Àj EgÀÄvÀzÛ É CAvÁ M¦àPÉƼÀÄîvÁÛg.É ªÀÄvÀÄÛ zÁªÁ D¹ÛU¼ À ÀÄ »jAiÀÄjAzÀ §AzÀ D¹ÛU¼ À ÀÄ ªÀÄvÀÄÛ PÀÆqÀÄ PÀÄlÄA§zÀ zs£ À À¢AzÀ PÉ®ªÀÅ D¹ÛU¼ À ÀÄ Rjâ ªÀiÁrzÀ D¹ÛUÀ¼ÄÀ J®èªÀÅ PÀÆqÀÄ PÀÄlÄA§zÀ D¹ÛU¼ À ÀÄ EgÀÄvÀªÛ É CAvÁ ªÁ¢ ºÁUÀÆ ¥Àw æ ªÁ¢AiÀÄgÀÄ M¦àPÉƼÀÄîvÁÛg.É "
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR
43. On this the learned Senior counsel rests his arguments by summing up that the admission in the pleadings are the best piece of evidence as held by the Hon'ble Apex Court in catena of judgments. The case set up by Sharanappa Sunagar in the written statement in the present suit that none of the properties shown in the suit schedule are either inherited or purchased out of nucleus of the properties from ancestors, but the properties are all self-acquired properties or properties purchased in the name of Murigewwa, is not sustainable.
44. The suit schedule properties are the properties shown in the earlier suit, wherein there is a categorical admission that the suit schedule properties, including the suit schedule properties in the present suit, have been described as ancestral properties (Hiriyaru). In these circumstances, the trial Court fell in error to hold that the plaintiffs have failed to prove by cogent evidence and independent evidence, that the suit schedule properties are the Joint Hindu family properties or ancestral
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR properties and the admission on the pleadings would not come to the aid of the plaintiffs as they were hit by Section-145 of the Indian Evidence Act. In these circumstances, the judgment and decree passed by the trial Court suffers from the legal infirmities and against the settled position of law declared by the Hon'ble Apex Court and this Court in catena of judgments and sought to set- aside the judgment and decree passed by the Trial Court and decree the suit granting the share of the plaintiffs and accordingly sought to allow the appeal.
45. Refuting the submissions of learned Senior Counsel, Sri.Amit Kumar Deshpande learned Senior Counsel, submits that the judgment of the trial Court is well-reasoned and does not suffer from any infirmities. He relied on the Genealogical Tree appended to suit in O.S.No.78 of 2016 to contend that the Genealogical Tree starts with Thippanna, father of defendant no. 1 and his descendants. There is nothing in the suit, i.e., in the plaint of OS No. 78 of 2016, to suggest that the Tippanna
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR inherited properties through his father or forefathers. Since Tippanna is shown as perpositus in the said genealogy tree appended to the plaint, the statement in paragraph no.3, be construed as the properties came through Thippanna and not from his ancestors, since the suit was filed after the death of said Thippanna.
46. In the absence of any categorical pleadings stating that the suit properties came to Thippana through his ancestors. The properties cannot be construed as ancestor properties and some properties purchased through the joint nucleus of the properties inherited from the ancestors. The word 'Hiriyaru' used in paragraph No.3 be construed as since the Thippana was shown as propositus and refers to Thippana, since he is the elder member of the family, consisting of defendant no. 1 and his brother Bhimraya, who filed suit arraying mother and other siblings as parties, so also defendant nos.4 and 5 and in the absence of any specific pleading, the word 'Hiriyaru' cannot be stretched to go beyond Thippanna and
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR to contend that it resembles ancestors other than Thippanna.
47. Except the earlier suit documents and extract of properties, no other independent documentary proof or oral evidence are produced by the plaintiffs to contend that these properties were inherited through ancestors i.e., Thippanna inherited from his ancestors. The documents produced are of recent years, and falls short to prove that the properties are either ancestral or joint family properties.
48. To base his arguments, the learned Senior Counsel, Sri.Amith Kumar Deshpande relied on the judgment of Hon'ble Apex Court in SREENIVASAN KRISHNA RAO KANGO vs. NARAYANA DEVJI KANGO AND OTHERS4, to contend that a person who approaches the Court taking the claim that the properties are the joint family properties, the burden lies on him to prove that the 4 1954(1) SCC 544
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR properties are the ancestral and joint family properties, by placing independent evidence. So also, to claim that the properties were purchased through joint nucleus of the family. Once, the initial burden casted on the person who has approached the Court is discharged, then the onus shifts on the others i.e., other co-parceners who claims the property as self-acquisition to establish that the same was acquired without aid of joint family funds or they are the individual and separate properties.
49. So also, the judgment of the Hon'ble Apex Court in the case of BHAGWAT SHARAN (DEAD THR.LRS.) vs. PURUSHOTTAM & OTHERS5, to contend that the burden is on the person who alleges existence of Hindu Undivided Family to prove the same and the proof required is more than the jointness of family, but also requires the property belongs to Joint Hindu Family, by placing the material on 5 Civil Appeal No.6875/2008, dtd.03.04.2020
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR record to show that the property is the Joint Hindu Family or that it was purchased through funds of the said nucleus.
50. He further relied on the judgment of learned Single Judge of HIGH COURT OF JUDICATOR AT MADRAS IN S.A.NO.1719 OF 2008 AND M.P.NO.1 OF 2008 IN THE CASE OF GOVINDAMMAL AND OTHERS VS. ANJUGAM AND OTHERS and stressed on paragraph No.26 of the said judgment wherein the learned Single Judge after referring to various judgments of Hon'ble Apex Court, so also referring to The texts of MANU AND VAJNESWARA COMMENT held that the burden of proof, lies on the plaintiff to establish the foundational facts to treat the suit property as joint family property and unless the burden is discharged, the plaintiffs claim that the suit property is joint family property cannot be sustained.
51. Relying on the aforesaid judgments, the learned Senior Counsel, with all vehemence submits that in the case on hand, except the compromise decree and
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR plaint in the said suit, the plaintiffs have not produced any independent evidence, both oral and documentary, to prove that the properties inherited through the ancestors beyond Thippanna. In these circumstances, if the properties are of Thippanna and inherited by defendant no. 1, after his demise or in an arrangement during his lifetime allotted to his share they become his individual as well as self-acquired property under succession as well as the arrangement made during the lifetime of said Thippana and are not amenable during his lifetime for partition.
52. The trial Court taking into consideration of all these material facts minutely discussed the entire case put forth before it, and with a well-reasoned order dismissed the suit holding issues against the plaintiffs and in favour of the defendant no. 1, which does not call for any interference, accordingly sought to dismiss the appeal.
53. Having heard the learned counsel for the parties, perused entire appeal papers, as well as the trial
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR court record, the points that would arise for our consideration are as follows:
i) Whether the trial Court is justified in answering issue No.1 in negative and against the plaintiffs, regarding the status of suit schedule properties as ancestral and joint family properties of plaintiff and defendant nos.1 and 2 and constituted a Hindu Undivided Family?
ii) Whether the trial Court is justified in answering Issue Nos. 2 and 3 in affirmative and in favour of defendant no.1 on the contention of self-accusation of defendant no.1, 4 and 5 so also, that the property in Survey No. 19/1, measuring 11 acres, is the self-acquired property of defendant No.3 - Neelamma?
iii) Whether the judgment and decree passed by the trial Court requires any interference at the hands of this Court?
54. Our answer to the above points for consideration are as under:
Point No.1 : Partly in Affirmative
Point No.2 : In Negative
Point No.3 : In Affirmative, for the
following:
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NC: 2025:KHC-K:5868-DB
RFA No. 200066 of 2021
HC-KAR
REASONS:
Point Nos.1 to 3;
55. All these issues are interlinked to one
another and taken together for discussion, in order to avoid repetition of facts.
On a short ground, the matter requires to be disposed of. It is not in dispute that there is a suit in O.S.No.78 of 2016 filed by the brother of defendant no. 1, wherein the appellants/plaintiffs were not parties. However, all the other members of the family were parties. It is not in dispute that in the suit in O.S.No.78 of 2016, the properties were described as properties came through the elders. Since the word used as 'Hiriyaru' and as per the contentions of learned Senior Counsel Sri.Chandrasekhar, the same be considered 'ancestors', but in the absence of any further statement in the suit that the properties were inherited by the said Thippanna, who has been shown, as rightly contended by Sri.Amit Kumar Deshpande, as the propositus in the genealogy appended to the suit. In the absence of any clear indication regarding that the suit
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR schedule properties came to Thippanna through his ancestors in the earlier suit and mere describing that they came through their elders i.e., Hiriyaru, cannot be stretched to an extent that it would be construed as ancestor and family properties as joint family properties, in the absence of any independent evidence, both oral as well as documentary, as contended by Sri.Amit Kumar Deshpande.
56. The only primary evidence produced by the plaintiffs before the trial Court are the documents pertaining to suit O.S.No.78/2016, marked as Exhibits-P1 to P4 i.e., certified copy of order-sheet, plaint, compromise petition and compromise decree. Except these documents, all other documents which were produced on behalf of the plaintiff are all RTC extract and other tax paid receipts of recent years, those documents falls short to construe that the properties are the ancestral joint family properties consisting of plaintiff and defendant no. 1. It is no doubt true that the words used in the plaint as well as the said
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR words are admitted as true in the compromise petition cannot be construed as the properties are ancestral joint undivided Hindu family properties. So far as plaintiffs and defendant no.1 are concerned.
57. It is no doubt true that the properties shown in the present suit are the suit schedule properties in OS No. 78 of 2016. Though there are admissions by defendant no. 1, in his cross-examination that in the suit O/S. No. 78 of 2016, in the compromise petition, the parties to the suit have admitted that the contents stated in the plaint are true and correct, so also, the compromise in O.S.No.78, 2016 are true and correct. Further, there is admission that the statements in the said compromise petition as well as the claim that the properties are stated to be the properties came through their Hiriyaru and belongs to joint family and some of the properties purchased through earnings of those properties as true. But as rightly contended by Sri.Deshpande there is nothing in the plaint to suggest that the said properties were inherited by
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR Tippanna through his ancestors to consider the said admissions.
58. The contentions of Sri.Chandrasekhar that the admissions given by the defendants No.1 as extracted supra are to be considered as proof of the documents produced in the suit, i.e., Exhibits-P1 to P4. We are unable to accept the argument of Learned Senior Counsel, the reason being the admissions have to be clear if they are to be proved against the person making them. In the case on hand, DW-1 has admitted regarding the contents stated in plaint as well as in the compromise petition. Even if the same are taken as admissions, the same would not enure to the benefit of plaintiff for the reason as contended by Sri.Amith Kumar Dheshpande, there is nothing to suggest in the plaint that the properties stated in the schedule to the plaint in O.S. No. 78 of 2016 were inherited by Thippana by his ancestors.
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR
59. In the said suit, a genealogy tree appended to the plaint shows Thippana as the prepositus and the word Hiriyaru especially stated in paragraph no. 3 of the plaint, i.e., the suit schedule properties came to the plaintiffs and the defendants through their Hiriyaru (elder). We use the word elders consciously for the reason that except this word there is nothing in the entire plaint to show that the properties came from ancestors beyond Thippana. To put it in other words, there is nothing in the plaint describing or stating that Thippana has inherited the properties through his ancestors.
60. In these circumstances, it becomes very hard to accept the contention of learned Senior Counsel for the plaintiffs, that the words used in the dictionary placed by him to contend that the word Hiriyaru be construed as ancestors. No doubt words used in the dictionary which we have extracted above gives a meaning for hiriyaru as ancestor. But in the case on hand, due to ambiguity created in the earlier suit regarding non-describing of the
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR properties inherited by the Thippana through ancestors, the word hiriyaru cannot be used beyond Thippanna, in the absence of any independent evidence to show that the properties did inherited by Thippanna by his ancestors.
61. The documents produced at Exhibit P1 to P4 would not enure to the benefit of the plaintiffs to contend that the properties are the joint family properties inherited through their ancestors to contend that these properties belong to Hindu Undivided Family, consisting of plaintiffs and defendant no. 1. In these circumstances, we find no infirmities on the findings of the trial court that the plaintiffs' reliance on the documents Exhibits-P1 to P4 would not enure to the benefits of the plaintiffs to conclude that the properties are the ancestor properties, thus does not suffers from any infirmities. Accordingly, we answer point no. 1 partly in affirmative.
62. So far as point nos. 2 and 3 are concerned, there is a categorical averment made in the present suit
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR stating that the suit schedule properties are the ancestral properties of Thippana, i.e., father of defendant no. 1. The said categorical averment is stated in paragraph no.5 of the plaint in the present suit for easy reference, we extract the same, which reads as under:
"5. CzÀÄ ºÉüÀĪÀÅzÉãÉAzÀgÉ, zÁªÁ D¹ÛU¼ À ÀÄ ¥Àwæ ªÁ¢ ¸ÀA.1 EªÀgÀ vÀAzÉAiÀiÁzÀ w¥ÀàtÚ ¸ÀÄtÚUÁgÀ EªÀgÀ ¦vÁæfðvÀ D¹ÛU¼ À ÀÄ ªÀÄvÀÄÛ CªÀÅUÀ½AzÀ ¸ÀA¥Á¢¹zÀ D¹ÛUÀ¼ÀÄ EzÀÄÝ,"
The trial Court in the absence of the documents and only on the contentions of defendant no. 1 that the properties in the absence of any independent evidence either oral or documentary, produced by plaintiffs and defendants proceeded to hold that defendant no. 1 has proved that the properties are self-acquired properties of defendant Nos.1, 4, 5 and defendant no. 3 while answering issue nos. 2 and 3 in favour of defendant no. 1.
63. The plaintiffs proceeded on the entire case on the basis of the documents, that were produced at Exhibit-P1 to P4, on the premise that since the properties
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR are stated as the properties came through Hiriyaru (elders) to contend that the properties are the ancestral properties.
64. In the absence of any specific pleadings in the earlier suit, as stated above, the plaintiffs have not led any other evidence independently to prove and substantiate their claim on the suit schedule properties. The documents produced other than Exhibits- P1 to P4 are all pertaining to the RTCs of recent years and also the tax paid receipts of recent years. These documents would not come to the aid of plaintiffs to prove that the properties are ancestor joint family properties. The entire case went on the premise that on the basis of earlier suit which ended in compromise. But for short of categorical pleading regarding ancestral properties as the one which is now stated in the suit, the plaintiffs were not-suited. Since the rights claimed are in respect of share in the immovable properties and they are the substantive rights required proper answers and proper evidence.
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR
65. Though we find no infirmities, in the finding of trial Court on Issue No.1 that in the absence of independent evidence, reliance placed on Exhibit-P1 to P4 would not come to the benefit of plaintiffs. However, the fact is that except these evidence, the plaintiffs have not produced any other evidence, to prove their case independently, as contended by the Senior Counsel, Sri. Amit Kumar Deshpande. In these circumstances, the finding given by the trial Court on Issue Nos. 2 and 3 in favour of the defendant no.1 requires reconsideration, since the findings are on the basis that the plaintiffs have not produced any independent evidence.
66. The Trial Court while answering issue No.1, particularly at paragraph No. 31 reasoned that the plaintiffs are duty bound to discharge their initial burden to show that the properties are ancestral and joint family properties, but the plaintiffs have not placed any iota of evidence before the court to show that, the suit properties are ancestral and joint family properties. On the other
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR hand, though there is no burden on defendant no. 1 to show that some of the properties are the self-acquired properties and some of the properties are the properties of defendant nos. 3 to 5, they placed documents on record to discharge their burden and the same establishes that the properties are not the ancestral properties. Since the entire case of the plaintiffs went on basing their claim on earlier suit under the impression that the suit properties are ancestral properties, they are stated to be came through their hiriyaru and according to the plaintiffs that means 'ancestors'. We have already subscribed our view to that word in the foregoing paragraphs. Since the plaintiffs have not discharged their initial burden to prove that the properties are ancestral property by placing other independent evidence except Exhibits-P1 to P4. Therefore, it would be reasonable to provide one more opportunity to the plaintiffs to prove their case independently other than ExhibitsP1 to P4 by placing cogent evidence to substantiate their claims that the properties are in fact ancestral
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR properties inherited by Thippana through his ancestors to prove that the properties are Joint Hindu Undivided family properties and they being the coparceners are entitled for a share in the property. Since the rights claimed are substantive rights with respect to immovable properties and the plaintiffs being the daughters claiming share in the ancestral properties, contending that the properties inherited by the father of defendant No.1 through his ancestors as contended in paragraph no.5 of the plaint which we have already extracted above. The same requires reconsideration.
67. The reason for the trial Court to non-suit the plaintiffs is that there is no evidence except Exhibits-P1 to P4 to contend the properties are ancestral and they are not coming to their aid. The reason assigned by the trial Court that though the said admissions were given by defendant no. 1 in the cross-examination regarding the documents, they are hit by Section-145 of the Indian Evidence Act, since he was not confronted with the contents of the
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR document and provided with an opportunity to explain. The findings of the trial Court on Issue Nos. 2 and 3 in these circumstances required to be set-aside, by providing an opportunity to the plaintiffs to prove their case by independent cogent evidence regarding the status and nature of the properties to stake claim on the properties as coparceners.
68. Even the judgments relied on by the learned counsel appearing for defendant no.1 suggests that the plaintiffs have to prove their case on independent evidence regarding the status of the property. Since there is nothing forthcoming to suggest that the plaintiffs have placed any evidence except relying on evidence Exhibits-P1 to P4, at the cost of repetition, the substantive rights in respect of the immovable properties claimed by the plaintiffs requires to be answered by the Court. We have already answered point No.1 partly in affirmative that the plaintiff failed to prove that the properties are ancestral properties only on relying Exhibits-P1 to P4, in the absence of any
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR independent evidence. As such the claim required to be considered by providing an opportunity to place evidence to the status of properties as ancestral.
69. For the foregoing reasons, we proceed to pass the following:
ORDER
i) The appeal is allowed in part.
ii) The judgment and decree dated 15.02.2021, in OS No.66/2018 passed by the Additional Senior Civil Judge And JMFC, Sindagi, is set-aside and modified.
iii) The matter stands remanded to the trial Court to afford opportunity to both sides to prove their respective claims, by placing independent cogent evidence.
iv) Since the suit is of the year 2018 we direct the trial Court to dispose off the matter within an outer limit of one year.
v) The parties are directed to appear before the Trial Court on 03.11.2025, without expecting any further notice from the trial Court, except defendant no. 2, who is served before this Court
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NC: 2025:KHC-K:5868-DB RFA No. 200066 of 2021 HC-KAR and unrepresented. The trial Court shall issue notice to defendant no. 2 before the trial Court, who is respondent No.2 before this court, and hear and dispose of the matter within one year from 03.11.2025, by affording sufficient opportunities to both the sides to prove their case.
vi) In the facts and circumstances of the case considering the relationship between the parties, costs made easy.
Sd/-
(H.P.SANDESH) JUDGE Sd/-
(T.M.NADAF) JUDGE JJ List No.: 1 Sl No.: 3 CT: AK