Karnataka High Court

Suresh Kumar S/O Hanmanthrao Kulkarni vs Devidas S/O Late Sitramrao Kulkarn on 29 November, 2023

Author: M.G.S.Kamal

Bench: M.G.S.Kamal

                                              -1-
                                                     NC: 2023:KHC-K:8376
                                                        RSA No. 7133 of 2011




                             IN THE HIGH COURT OF KARNATAKA

                                     KALABURAGI BENCH

                        DATED THIS THE 29TH DAY OF NOVEMBER, 2023

                                            BEFORE
                           THE HON'BLE MR. JUSTICE M.G.S.KAMAL

                         REGULAR SECOND APPEAL NO.7133 OF 2011
                                          (DEC/INJ)
                   BETWEEN:

                   1.     SURESH KUMAR
                          S/O HANMANTHRAO KULKARNI
                          DEAD BY L.RS.

                   1A.    SHOBHA
                          W/O SURESH KUMAR,
                          AGE: 52 YEARS, OCC: HOUSEHOLD,

                   1B.    AMBRESH
                          S/O SURESH KUMAR,
                          AGE: 29 YEARS, OCC: AGRICULTURE,
Digitally signed
by LUCYGRACE       1C.    BHAVANI D/O SURESH KUMAR,
Location: HIGH            AGE: 52 YEARS, OCC: HOUSEHOLD,
COURT OF
KARNATAKA                 ALL R/O BHAVANI NILAYA,
                          VENKATESH NAGAR, CHITTAPUR.

                                                               ...APPELLANTS

                   (BY SRI. SHIVAKUMAR KALLOOR, ADVOCATE)

                   AND:

                   SRI. DEVIDAS
                   S/O LATE SITRAMRAO KULKARNI,
                   AGE: MAJOR, OCC: AGRICULTURE,
                                 -2-
                                        NC: 2023:KHC-K:8376
                                            RSA No. 7133 of 2011




R/O : JAFAR GUNJ CHITTAPUR,
TQ. CHITTAPUR, DIST. GULBARGA.

                                                  ...RESPONDENT

(BY SRI. A.P. JAHAGIRDAR, ADVOCATE)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 18.12.2010
PASSED IN R.A. NO.41/2010 ON THE FILE OF THE
I ADDITIONAL DISTRICT JUDGE AT GULBARGA, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 21.01.2010 PASSED IN O.S. NO.275/2002 ON THE FILE
OF THE CIVIL JUDGE (SR.DN.) AT CHITTAPUR.

     THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

This Appeal is filed by the defendants aggrieved by

the concurrent judgments and decrees passed in

O.S.No.275/2002 dated 21.01.2010 by the Civil Judge

(Senior Division), Chittapur (for short 'Trial Court') and

judgment and decree passed in R.A.No.41/2010 dated

18.12.2010 by the I Additional District Judge, Gulbarga

(for short 'First Appellate Court'). By the aforesaid

concurrent judgments and decrees, the suit of the plaintiff

for declaration and possession has been decreed.

NC: 2023:KHC-K:8376

2. For the sake of convenience, parties are

referred to by their original ranking before Trial Court.

3. The brief facts of the case as available on

record are as under:

a) One Smt. Tulasabai W/o Ganapatrao Kulkarni

was the owner of large tracts of land. Said Smt. Tulasabai

had two daughters by name Smt. Sitabai and

Smt. Ambabai. Plaintiff is the grandson of said

Smt. Ambabai. It is the case of the plaintiff that since

Smt. Tulasabai had great love and affection towards

plaintiff as such she had bequeathed the suit lands bearing

survey No.443, measuring 16 Acres 11 Guntas and survey

No.444, measuring 8 Acres 37 Guntas, both situated at

village Diggaon, Chittapur Taluka, Gulbarga District in

favour of plaintiff under a Will dated 08.12.1964, subject

to condition that one of her daughters namely Smt. Sitabai

would have right to enjoy both the suit lands during her

lifetime. It is further contended that, though said

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Smt. Sitabai could enjoy the lands during her lifetime, she

had no right to alienate or mortgage the suit properties.

b) That, the deceased father of the plaintiff had

made an application for mutation of one of the suit land

namely, land in Sy.No.443 to be mutated in the name of

the plaintiff and land in Sy.No.444 in the name of said

Smt. Sitabai. It is contended that said arrangement was

made by the father of the plaintiff only to ensure that the

said Smt. Sitabai did not feel isolated. As such, the name

of Smt. Sitabai was reflected in the revenue records in

respect of land in Sy.No.444 until the plaintiff attained the

age of majority. After the plaintiff attaining the age of

majority, his name was reflected in the revenue records by

mutation of his name. That, the said Smt. Sitabai had no

issues and she was treating the plaintiff as her own son

and she was residing with him till her death about 12

years prior to filing of the suit. It is contended that

though one of the suit lands was standing in the name of

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deceased Smt. Sitabai, the plaintiff was cultivating the

said land on her behalf as the owner of the same.

c) That, the said Will dated 08.12.1964 was

executed in Urdu language. That, the plaintiff upon the

death of Smt. Sitabai became the absolute owner in

possession and enjoyment of the suit properties. That, the

revenue records in respect of the suit property are

standing in the name of the plaintiff.

d) It is further contended that the defendant, who

is the uncle of the plaintiff has totally unconcern to the suit

lands. However, in collusion with the revenue officials, he

got his name entered in the revenue records in respect of

both the suit lands claming rights over the suit lands under

the garb of a partition deed alleged to have been executed

between the defendant and his brothers. It is contended

that the plaintiff not being party to the said deed of

partition, the terms and recitals of the said deed of

partition was not binding on him. That, since the suit lands

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were already bequeathed by deceased Smt. Tulasabai in

favour of the plaintiff being her great grand son under the

Will dated 08.12.1964, the suit properties could not have

been made subject the matter of partition.

e) That, the plaintiff appeared before the Tahsildar

and placed all the facts before him. The Tahsildar

conducted a panchanama and obtained the signature of

the plaintiff. The defendant in connivance with the

Tahsildar got his name inserted in the revenue records in

respect of the suit lands for the year 2001-2002.

Aggrieved by the same, an appeal was filed by the plaintiff

before the Assistant Commissioner in Appeal No.51/2001-

02 in which an order of status-quo was passed on

21.12.2001.

f) Thus, it is contended that the plaintiff is in

exclusive possession and enjoyment of the suit lands as

owner there-of and the defendant taking undue advantage

of the fact that his name was entered in the revenue

NC: 2023:KHC-K:8376

records was trying to alienate the suit lands attempting to

forcibly dispossess the plaintiff from the suit lands. As

such, the suit was filed by the plaintiff for declaration that

he is the exclusive owner in possession of the suit

properties and for a consequential relief of perpetual

injunction restraining the defendant from interfering into

the peaceful possession and enjoyment of the property by

the plaintiff and also for the relief of rectification of the

record of rights in respect of suit lands.

4. A written statement has been filed by the

defendant denying the plaint averments and also

contending as under:

a) That, Smt. Tulasabai was a maternal grand

mother of the defendant as well as his elder brothers

namely, Sitaramrao, Bhimarao, Kishanrao and

Ganapatrao, all being the sons of Smt. Ambabai, one of

the daughters of Smt. Tulasabai and Hanamantharao.

NC: 2023:KHC-K:8376

b) That, the eldest daughter of Smt. Tulasabai

namely, Smt. Sitabai was married to one Ramchandrarao,

who died issueless leaving behind his widow, said

Smt. Sitabai. As the said Smt. Sitabai had no other

relatives, she came to the house of Smt. Tulasabai, her

mother and was staying with her. That, since

Smt. Tulasabai had no male issues, she and her widowed

daughter Smt. Sitabai together stayed with her son-in-law

Sri. Hanamantharao and his sons including the defendant

constituting a joint Hindu family. That, the deceased

Smt. Tulasabai had inherited 11 lands, all situated at

Diggaon village of Chittapur Taluk and lands were looked

after by Hanamantharao and the income derived there

from was utilized by the joint family. That, deceased

Smt. Tulasabai with a view to provide maintenance to her

widowed daughter Smt. Sitabai, who had become destitute

upon the demise of her husband, had orally settled two

lands bearing Sy.No.443 and 444 of village Diggaon in her

favour and the possession of the said two lands was also

given to said Smt. Sitabai. Accordingly, the said

NC: 2023:KHC-K:8376

Smt. Sitabai had become owner in possession and

enjoyment of the said lands. Consequently, the revenue

records were mutated in respect of the said lands in favour

of deceased Smt. Sitabai. However, since all of them were

staying together, the said two lands were also being taken

care by Hanamantharao. The said Hanamantharao passed

away in the year 1969-70 leaving behind aforesaid four

sons namely, Sitaramarao, Bhimarao, Ganapathrao and

Sureshkumar, the defendant herein. That, Smt. Tusalabai

was aged about 80 years at the time of her death. In the

year 1964, she had made certain arrangements in respect

of her lands to avoid future litigations and accordingly, in

the presence of widowed daughter of Smt. Tulasabai,

Sitaramarao and his brothers assigned with the title of

said 11 lands and the possession of the said lands was

also with them. Ever since then, the defendant and his

three brothers have been in the possession and enjoyment

of the said 11 lands and continued to hold the same as

joint owners of the land until they got divided on

01.03.1985 among themselves.

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c) That, the deceased Smt. Tulasabai was not the

owner of the suit lands on the date of alleged Will, as she

had already made an oral family arrangement in respect of

her lands including the suit properties in favour of the

defendant and his three elder brothers, all of whom were

the grand sons of said Smt. Tulasabai. Execution of Will by

deceased Smt. Tulasabai is also disputed.

d) That, the land in Sy.No.444 of Diggaon village

has been standing in the name of Smt. Sitabai as owner

and Kabjedar ever since the year 1954-55. As such, it is

contended that the alleged Will dated 08.12.1964 is a false

and concocted document only to suit the convenience of

the plaintiff.

e) It is also contended that the alleged Will was

never acted upon. On these and other grounds, sought for

dismissal of the suit.

5. Based on the aforesaid pleadings, the Trial

Court framed the following issues:

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"1. Whether the plaintiff proves that deceased Tulasabai was exclusive and lawful owner of suit properties?

2. Whether plaintiff proves that Smt. Tulasabai W/o Ganapathrao Kulkarni had executed Will of suit properties in favour of the plaintiff on 08-12-1964?

3. If so, is the said Will is last and final Will of said Smt. Tulasabai?

4. Does plaintiff proves that he became owner and entered into actual possession of suit property after death of Tulasabai?

5. Does plaintiff proves that defendants are denying his title and causing interference into his possession of suit properties?

6. Whether defendants prove that deceased Tulasabai had made family arrangements of all her properties during her life time in 1964 in favour of her four grand sons?

7. Whether defendants proves that deceased Tulasabai gave Sy.No.443 and 444, in favour of her daughter Smt. Seetabai towards her maintenance?

8. Whether defendant proves that there was a family arrangement and partition on 01-03-1985, and in said partition, suit lands came to defendant?

9. To what order or decree?"

6. Plaintiff has examined five witnesses as PWs.1

to 5 and 95 documents have been produced and marked

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as Exs.P1 to P95. On behalf of the defendant, five

witnesses have been examined as DWs.1 to 5 and four

documents have been marked as Exs.D1 to D4.

7. On appreciation of the evidence, the Trial Court

answered issue Nos.1, 2, 4 and 5 in the affirmative, issue

No.7 partly in affirmative, issue Nos.6 and 8 in the

negative and issue No.3 has been deleted. Having thus

answered the issues, the Trial Court decreed the suit of

the plaintiff declaring the plaintiff to be the absolute owner

in possession of the suit properties and consequently

granted permanent injunction restraining the defendant

from interfering into the peaceful possession and

enjoyment of the suit properties by the plaintiff. Being

aggrieved by the same, the defendant preferred a Regular

Appeal in R.A. No.41/2010 before the First Appellate

Court.

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NC: 2023:KHC-K:8376

8. Considering the grounds urged in the appeal

memorandum, the First Appellate Court framed the

following points for its consideration:

"1. "Whether the plaintiff proves that he possess a legal right and therefore entitled to seek an order of declaration and injunction in respect of the suit property?

2. Whether the appellant proves that the impugned judgment is perverse, illegal and capricious and therefore calls for interference?

3. If so, what order?"

9. On appreciation of the evidence, the First

Appellate Court has answered point No.1 in the affirmative

and point No.2 in the negative and consequently dismissed

the appeal confirming the judgment and decree passed by

the Trial Court. Being aggrieved by the same, the

defendant is before this Court.

10. This Court, by order dated 31.01.2020, framed

the following substantial questions of law for

consideration:

"1. Whether the Courts below have not properly appreciated the evidence relating to the proof of the Will?

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NC: 2023:KHC-K:8376

2. If the Will is not acted upon for more than thirty years, whether the beneficiary/legatee looses his rights under the Will?"

11. Thereafter, by order dated 24.11.2023, this

Court framed the following additional substantial question

of law:

"Whether the Trial Court and the First Appellate Court are justified in holding that Sitabai had acquired only limited right in the suit schedule property that is only for the purpose of her maintenance ignoring the provisions of Section 14 of the Hindu Succession Act and consequently failed to consider the entitlement of the other family members/legal heirs under Sections 15 and 16 of the Hindu Succession Act?"

12. Sri Shivakumar Kalloor, learned counsel

appearing for the appellants reiterating the grounds urged

in the memorandum of appeal and taking this Court

through the documents and the deposition and also the

reasoning assigned by the Trial Court and the First

Appellate Court, submitted that the Will itself is a brought

up document executed under extremely suspicious

circumstances. In that, he specifically refers to a

Ö À' document namely, Ex.P35 which is 'ªÀUÀð ªÀÄÄ¨Á¢¯Á gÀf¸Àg

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(Mutation Register). In that, it is seen that there is an

entry which reads as under:

"As per the will and the opinion of the VO's the mutation may be sanctioned in the name of Devidas S/o Seetaram Rao."

The date found below the said endorsement before

the signature is 16.03.1965. He also refers to Ex.P37, a

letter purportedly given by the plaintiff, seeking transfer of

his name to the Village Officer, Diggaon, Chittapur Taluk,

in which there is a reference to date of death of

Smt. Tulasabai shown as 08.12.1965. Thus, referring to

these two documents, learned counsel submits that the

entries found in Ex.P35 sanctioning the mutation in

respect of suit lands even as on 16.03.1965 that is the

date admittedly prior to the death of Smt. Tulasabai,

which is 08.12.1965, itself is a circumstance of serious

suspicion, which the Trial Court and First Appellate Court

have lost sight of. He refers to deposition of PW.1

recorded on 14.03.2005, wherein he has admitted that

there was settlement made by Smt. Tulasabai of the

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properties in favour of her two daughters namely,

Smt. Sitabai and Smt. Ambabai. Thus, at the outset,

referring to the aforesaid documents and the deposition of

the witnesses, learned counsel submits that when

admittedly properties were settled in favour of

Smt. Sitabai, the execution of Will by Smt. Tulasabai

bequeathing the suit properties in favour of plaintiff is

highly questionable. He also submits that assuming that

the Will was indeed executed, the very content of the Will

referring to right of maintenance created in favour of

Smt. Sitabai would be against the case of the plaintiff. In

that, he submits that the said Will refers to a right of

maintenance of Smt. Sitabai having been reserved during

her lifetime.

13. Elaborating the said submissions, learned

counsel relies upon the judgment of this Court in the case

of Basappa Irappa Kori and Others vs. Basavannappa

reported in HCR 2016 Kant. 321 and the judgment of

Hon'ble Apex Court in the case of Jupudy Pardha

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Sarathy vs. Pentapati Ram Krishna & Ors. reported in

2016 AIAR (Civil) 92. He also refers to provisions of

Section 14 of the Hindu Succession Act to buttress his

submission that, the property which was given and was in

possession of a Hindu female even towards her

maintenance would become her absolute property. Thus,

referring to the aforesaid material evidence and position of

law, learned counsel submits that the questions of law

raised in this appeal required to be answered in favour of

the appellant reversing the judgment and decree passed

by the Trial Court, which is confirmed by the First

Appellate Court.

14. Though sufficient opportunity is granted, there

has been no representation on behalf of the respondent.

Hence, the matter is taken as heard.

15. Perusal of the plaint averments and evidence of

the plaintiff would reveal that Smt. Tulasabai was the

owner of large extent of lands. The revenue records

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produced at Exs.P13 to P15 in respect of land bearing

Sy.No.444 reveal that the name of Smt. Sitabai has been

reflected ever since the year 1954-55. Therefore, the

plaint averments that during the year 1964-65 it is the

father of the plaintiff, who had got the name of

Smt. Sitabai included in the revenue records just to make

Smt. Sitabai feel good is untenable. In the deposition

recorded on 14.03.2005, the plaintiff has deposed as

under:

"J¯Áè D¹ÛU¼ À À ¸ÀªÉð £ÀA§gÀU¼ À ÄÀ £É£¦ À ®è. CªÀ½UÉ MlÄÖ CAzÁdÄ 100 JPÀgÉ d«ÄÃ£ÀÄ EvÀÄ.Û vÀÄ¼Á¨Á¬Ä ªÀÄÈvÀÄöÛ å ¥ÀvæÀ §gÉAiÀÄÄªÁUÀ vÀÄ¼À¨Á¬ÄAiÀÄ ºÉ¸jÀ £À°è CAzÁdÄ 100 JPÀgÉ d«ÄÃ£ÀÄ EvÀÄ.Û D ¸ÀªÄÀ AiÀÄPÉÌ CA¨Á¨Á¬Ä EªÀ½UÉ »¸Éì ¨ÉÃgÉ ªÀiÁr vÀÄ¼À¸Á¨Á¬Ä PÉÆnÖz¼ ÝÀ ÄÀ . DzÀgÉ D jÃw AiÀiÁªÁUÀ ªÀiÁrzÁÝ¼É £À£U À É UÉÆwÛ®.è ¹ÃvÁ¨Á¬Ä EªÀ½UÉ »¸Éì ¨ÉÃgÉ ªÀiÁr AiÀiÁªÁUÀ PÉÆnÖzÁÝgÉ UÉÆwÛ®.è vÀÄ¼À¸Á¨Á¬Ä ªÀiÁ°PÀ¼ÄÀ EgÀ¯ÃÉ E®è C£ÀÄßªÀÅzÀÄ ¸ÀÄ¼ÀÄ.î CzÀPÁÌV ªÀÄÈvÀÄöÛ å ¥ÀvÀæ §gÉAiÀÄÄªÀ ¢£ÁAPÀAPÉÌ AiÀiÁªÀÅzÉÃ ºÀPÄÀ Ì CxÀªÁ ¸Áé¢Ãü £ÀvÉ EgÀ°®è C£ÀÄßªÀÅzÀÄ ¸ÀÄ¼ÀÄ.î £Á£ÀÄ ºÀÄlÄÖªÀ ªÉÆzÀ¯É vÀÄ¼À¸Á¨Á¬Ä EªÀ¼ÀÄ ¹ÃvÁ¨Á¬Ä ªÀÄvÀÄÛ CA¨Á¨Á¬Ä EªÀjUÉ D¹ÛU¼ À £À ÀÄß PÉÆnÖzg ÀÝ ÀÄ C£ÀÄßªÀÅzÀÄ ¤d. CA¨Á¨Á¬ÄUÉ AiÀiÁªÀ ¸ÀªðÉ £ÀA§gÀU¼ À ÀÄ JµÀÄÖ d«ÄÃ£ÀÄ PÉÆnÖzÁÝgÉ £À£U À É £É£¦À ®è. CªÀ½UÉ AiÀiÁªÁ AiÀiÁªÀ ¸ÀªðÉ £ÀA§gÀU¼ À ÄÀ ºÉÆÃV UÉÆwÛ®.è CA¨Á¨Á¬Ä CAvÁ £À£ßÀ vÀAzÉAiÀÄ vÁ¬Ä EzÁÝg.É CAzÁdÄ 25 ªÀµÀðzÀ »AzÉ CA¨Á¨Á¬Ä wÃjPÉÆArzÁÝg.É CA¨Á¨Á¬Ä ¸ÀvÀÛ £ÀAvÀgÀ D D¹ÛU¼ À ÀÄ ªÀÄPÀ¼ Ì ÁzÀ £À£Àß vÀAzÉ ©üÃªÀÄgÁªÀ, UÀt¥Àvg À ÁªÀ ªÀÄvÀÄÛ ¸ÀÄgÉÃ±À EªÀgÉÃ ¸Áé¢£ ü À ºÉÆA¢zÁÝg.É £ÀªÄÀ ä ªÀÄvÀÄÛ £À£ßÀ vÀAzÉAiÀÄ CtÚ vÀªÄÀ äA¢gÀ ªÀÄzsÀå F ªÀgUÉ ÀÆ D¹ÛU¼ À ° À è ¥Á®Ä DV®è. J¯Áè D¹ÛU¼ À ÄÀ ªÀåªÀºÁgÀª£ À ÄÀ ß J®ègÀÆ PÀÆr £ÉÆÃqÀÄvÉÃÛ ªÉ."

16. Thus, it is clear that even according to the

plaintiff, Smt. Tulasabai had settled the properties in

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favour of her two daughters namely, Smt. Sitabai and

Smt. Ambabai. Smt. Ambabai is none other than the

grand mother of the plaintiff. Perusal of the Will at Ex.P1

reveal that Smt. Tulasabai had created life interest in

favour of Smt. Sitabai, as she was not given anything at

the time her marriage. The said Will also refers to land in

Sy.No.443 measuring 16 Acres 11 Guntas and land in

Sy.No.444 measuring 8 Acres 37 Guntas having been

given to Smt. Sitabai towards her maintenance creating

life interest thereon. Two questions that emanate from the

aforesaid records are that, when the revenue records

reflect the name of Smt. Sitabai right from 1954-55

onwards, the question of creation of life interest through

and under the Will at Ex.P1 does not arise. Even as

admitted by the PW.1 in his deposition, there was

settlement made by Smt. Tulasabai settling certain

properties in favour of her two daughters. Reading of

revenue records in the light of contents of Will and the

deposition of PW.1 would categorically indicate that

Smt. Tulasabai had indeed settled the suit properties in

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favour of Smt. Sitabai far prior to the date of alleged

execution of the Will. Thus, Section 14 of the Hindu

Succession Act would come into play.

17. Section 14 of the Hindu Succession Act reads as

under:

"14. Property of a female Hindu to be her absolute property.- (1) Any property Possessed by a female Hindu, whether acquired before or after the Commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.- In this sub-section, "property"

includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."

18. Thus, from the above provision it is clear that,

any property possessed by a Hindu female, irrespective of

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how it was acquired, becomes her absolute property after

coming into force of the Act.

19. It is settled law that, the words "any property

possessed by a female Hindu" include actual as well as

constructive possession. The expression "female Hindu" in

the heading of Section 14 of the Act as well as the

expression "any property possessed by a female Hindu"

have to be given a wider interpretation in consonance with

the wishes and desires of the framers of the Constitution.

The expression 'female Hindu' would take in "daughter"

also. Therefore, limited interest of daughter in property

would get enlarged to full right after the commencement of

the Act.

20. Alternatively, even it is assumed that the Will

indeed was executed, there is a categoric reference in the

Will of creation of right in lieu of maintenance in favour of

Smt. Sitabai by Smt. Tulasabai. Even such a right is

protected under Section 14 of the Hindu Succession Act. In

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either of the case, Smt. Sitabai would be the absolute

owner in possession of the property i.e., by virtue of

settlement made by Smt. Tulasabai from the year 1954-55

i.e., prior to execution of Will and even in terms of the

Will.

21. Even as admitted by the plaintiff, 12 years

subsequent to the date of death of Smt. Sitabai, he filed

an application for mutation of his name in the revenue

records. It is his case that by the said time, defendant, in

collusion with the revenue authorities, based on a

purported partition deed had got mutated the names of

the defendant and his brothers including the name of

father of the plaintiff in the revenue records. The partition

deed is produced at Ex.D3. Though the plaintiff has denied

execution of such a partition, interestingly, his father who

was one of the parties to the said partition at Ex.D3 has

not been examined. The said partition deed refers

allotment of the properties as under:

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1. Lands allotted to the eldest Brother Seetharam Rao son of Hanmanth Rao, R/o Chittapur, Taluka Chittapur, District Gulbarga.

Sl.No. Survey Acre-- Guntas, Assessment: Situated at Number

1. 411 12- 22 Rs34-27 Diggaon, Tq. Chittapur.

2. Lands allotted to the share of Sri. D. Bheem Rao S/o Hanmanth Rao, R/o Chittapur, at present at Gulbarga Taluka and District Gulbarga.

Sl.No. Survey Acre-- Guntas Assessment: Situated at:

Number

1. 23 7- 21 Rs19-19P Diggaon, Tq. Chittapur.

2. 933 4- 39 Rs10-40P -do-

3. Lands allotted to the share of Sri. Ganpat Rao S/o Hanmanth Rao, R/o Chittapur, Taluka Chittapur, District Gulbarga.

Sl.No. Survey Nos: Acre-Guntas. Assessment: Situated at

1. 936 00--37 Rs2-53 Diggaon Taluka Chittapur.

2. 935 2--19 Rs6-98 -do-

3. 145 1--34 Rs5-39 -do-

4. Pardi No:1 0--21 Rs1-44 -do-

5. 7 11--00 Rs28-65 -do-

6. 301 16--23 Rs36-14 -do-

7. 302 10--30 Rs24-41 -do-

- 24 -

NC: 2023:KHC-K:8376

4. Lands allotted to the share of Sureshkumar s/o Hanmanthrao, R/o Chittapur, Tq. Chittapur, Dist. Gulbarga.

Sl.No. Survey Acre-Guntas, Assessment: Situated at Number:

1. 443 16-04 Rs34-27 Diggaon, Taluka Chittapur.

2. 444 8-37 Rs23-57. -do-

22. The revenue records have been mutated in

furtherance to the allotment of the properties in terms of

Ex.D3. The plaintiff does not dispute the allotment of the

properties as per Ex.D3 and the entries in the revenue

records, though he denies the execution of such a

document. In the said partition, the suit properties have

been allotted to the share of the defendant. Assuming that

the plaintiff was justified in disputing Ex.D3 in terms of

which the properties were allotted, all that may require is

the partition of the properties afresh. That would not in

any way take away the right of the plaintiff or the brothers

of the defendant. That relief is always available for the

plaintiff.