Karnataka High Court
Smt Anusuya vs R Ashwathanarayana on 19 August, 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19th DAY OF AUGUST, 2025
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO.493 OF 2023 (PAR)
BETWEEN:
1 . SMT. ANUSUYA
W/O MR. GOPAL
AGED ABOUT 64 YEARS
No.5/10, 16TH CROSS, 7TH MAIN
RAMASWAMY LAYOUT
LAKKASANDRA
BENGALURU-560 030
2 . SMT. R. PUSHPALATHA
W/O LATE PRABHAKAR N.
AGED ABOUT 58 YEARS
No.34, 4TH FLOOR
HAL III STAGE, 2ND CROSS
NEAR ANJANEYA TEMPLE
NEW THIPPASANDRA
BENGALURU-560 075
3 . SMT. R. VINODA LOKESH
`W/O MR. V.J. LOKESH
AGED ABOUT 56 YEARS
No.9, 12TH MAIN
REVENUE LAYOUT
BEHIND POST OFFICE
PADMANABHA NAGAR, BSK II STAGE
BENGALURU-560 070
...APPELLANTS
(BY SRI. M.J. ALVA, ADVOCATE)
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AND:
1. R. ASHWATHANARAYANA
S/O LATE P. RAMAKRISHNAPPA
AGED ABOUT 70 YEARS
No.2841, 17TH CROSS
4TH MAIN, K.R. ROAD
BANASHANKARI II STAGE
BENGALURU-560 070
2. R. SHASHIKUMAR
S/O LATE P. RAMAKRISHNAPPA
AGED ABOUT 66 YEARS
No.59, "NAGA KUTIRAM"
BANK OFFICERS LAYOUT, NARAYANA NAGAR
FIRST BLOCK, DODDA KALLASANDRA
KANAKAPURA ROAD
BENGALURU-560 062
3. R. ADINARAYANA
S/O LATE P. RAMAKRISHNAPPA
AGED ABOUT 62 YEARS
No.2840, 17TH CROSS
4TH MAIN, K.R. ROAD
BANASHANKARI II STAGE
BENGALURU-560 070
4. SMT. S. CHANDRAKANTHA
W/O N. SHAMSUNDER
AGED ABOUT 72 YEARS
No.813, 2ND CROSS
1ST BLOCK, HRBR LAYOUT
BANASAWADI
BENGALURU-560 043
5. SMT. SAVITHRI
W/O GUNDAPPA VENKATESH
AGED ABOUT 60 YEARS
No.470 , "VENKATESHWARA NILAYA"
12TH CROSS, 25TH MAIN
J.P. NAGAR I PHASE
BENGALURU-560 078
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6. SMT. NALINI KANTH P.T.
D/O LATE R. VIJAYALAKSHMI
AGED ABOUT 55 YEARS
No.84, UNIT No.FF, 2ND MAIN ROAD
UNISHIRE VICTORY-CENTRAL AVENUE
PALACE GUTTAHALLI
BENGALURU-560 003
7. KESHAVAMURTHY P.T.
S/O LATE R. VIJAYALAKSHMI
AGED ABOUT 58 YEARS
No.84, UNIT No.FF, 2ND MAIN ROAD
UNISHIRE VICTORY-CENTRAL AVENUE
PALACE GUTTAHALLI
BENGALURU-560 003
8. SMT. HEMASHREE M.
W/O LATE P.T. SRIDHAR YADAV
D/IN LAW OF LATE R. VIJAYALAKSHMI
AGED ABOUT 49 YEARS
No.346, 29TH 'B' MAIN ROAD
10TH CROSS, HSR LAYOUT
BENGALURU-560 102
...RESPONDENTS
(BY SRI. SRINIVAS B.S., ADVOCATE FOR R1;
SRI. NISHANTH A.V., ADVOCATE FOR C/R3;
SRI. RAVISHANKAR S.S., ADVOCATE FOR R6;
R2, R4, R5, R7 & R8 ARE SERVED AND UNREPRESENTED)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC AGAINST THE ORDER DATED 21.01.2023 PASSED
ON IA No.2 IN OS No.6775/2021 ON THE FILE OF XVII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(CCH No.16), ALLOWING THE IA No.2 FILED UNDER ORDER 7
RULE 11(a)(d) R/W SEC.151 OF CPC FOR REJECTION OF PLAINT
AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 12.08.2025 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN
J., PRONOUNCED THE FOLLOWING:
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CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE MR. JUSTICE RAJESH RAI K
CAV JUDGMENT
(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)
This appeal is preferred against the judgment dated
21.01.2023 passed by the XVII Additional City Civil and
Sessions Judge, Bengaluru in O.S.No.6775/2021 by which
the plaint was rejected.
2. We have heard Shri. M.J. Alva, learned counsel
appearing for the appellants, Shri. Srinivas B.S, learned
counsel appearing for respondent No.1, Shri. Nishanth A.V,
learned counsel appearing for respondent No.3 and Shri.
Ravishankar. S.S, learned counsel appearing for respondent
No.6.
3. The learned counsel appearing for the appellants
submits that the rejection of plaint under Order VII Rule 11
of the Code of Civil Procedure, 1908 can only be on the basis
of the pleadings in the plaint and the rejection of the plaint
on accepting the contention of the defendants that there
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was an oral partition in the family earlier was per se
incorrect.
4. The learned counsel would also place reliance on
the decision of the Apex Court in Swadesh Kumar
Agarwal v. Dinesh Kumar Agarwal and Others reported
in AIR 2022 SC 2193, in support of his contention. It is
further submitted that there were several properties owned
by the father of appellants Shri. Ramakrishnappa, who died
intestate on 30.08.1995. It is submitted that the suit was
filed seeking partition and separate possession in respect of
11 items of the immovable properties. It is further
submitted that the defendants had raised counter claims and
relying on documents produced by the defendants, the suit
came to be rejected. It is submitted that the rejection of the
plaint was untenable and that it was only after a full trial
that it could have been decided whether the appellants were
entitled to partition and separate possession of the
properties and what is the share to be allotted to each. It is
submitted that if even one item of property was available for
partition, the plaint could not have been rejected.
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5. The learned counsel appearing for the
respondents on the other hand contended that it was on the
basis of the averments in the plaint itself, the plaint came to
be rejected. It is submitted that there was an oral partition
in the year 1990 and a registered confirmation deed in the
year 2002, which was specifically pleaded by the plaintiffs
and the copy of the registered confirmation deed was
produced along with the plaint. The defendants had filed a
petition seeking rejection of the plaint on the basis of the
material which was placed on record by the appellants and it
was on looking into those materials that the plaint was
rejected by the trial Court.
6. We have considered the contentions advanced.
We notice that the suit was filed by 3 out of the 5 daughters
of Ramakrishnappa and Venkatamma. Defendants No.1 to 3
are the brothers of the plaintiffs. The suit schedule
properties were 11 items of immovable properties. The
plaint averments read as follows:-
"6. The plaintiffs submit that they gradually
learnt that the defendants had stealthily disposed some of
the properties by creating fictitious and fraudulent
documents in their favour without the consent or
-
knowledge of the plaintiffs and much against their
interest. With the growing suspicion about the conduct of
the defendants and about their actions, the plaintiffs had
verified in the Office of the Sub-Registrar by obtaining
encumbrance certificates and to their shock and surprise,
the plaintiffs had learnt that the defendant Nos. 1 to 3
had created fictitious partition deed on 1.2.2002 which is
styled as Confirmation Deed of Partition by partitioning
the portions of the schedule properties among themselves
to the exclusion of the plaintiffs. On obtaining the certified
copy the plaintiffs have ascertained that the defendant
Nos. 1 to 3 had partitioned the properties among
themselves excluding the plaintiffs and the defendant
No.5 and failed to effect partition and to put the plaintiffs
in separate possession of their respective shares for which
they are legitimately entitled. The plaintiffs had made
their best endeavour to ascertain details of the properties
disposed off by the defendant Nos.1 to 3 without their
consent or knowledge and the plaintiffs could not get the
definite and clear information. However the plaintiffs
reserve their right to plead the same and implead the
purchasers also during the pendency of the above suit.
7. The plaintiffs submit that in addition to the
immovable properties there are several movable
properties left behind by their deceased parents which are
neither partitioned nor transferred to the plaintiffs
hitherto and the plaintiffs are entitled for their shares in
the same. All the schedule properties mentioned in this
suit are the self acquired properties of their deceased
father who had got the same purchased either in his own
name or in the names of the defendant Nos.1 to 3 or in
the name of his wife Smt. Venkatamma. All the
contributions for purchasing the said properties are made
by the funds of their deceased father and the defendant
Nos.1 to 3 were the dependent sons and only the name
lenders and any property purchased in the names of the
defendant Nos.1 to 3 are also the joint family properties
over which the plaintiffs are having their undivided equal
rights for shares. All the children of Ramakrishnappa and
Venkatamma are entitled for 1/9th share each in the
schedule properties."
7. Along with the plaint, the confirmation deed of
partition executed on 01.02.2002, between the mother of
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appellants and respondents No.1 to 5 and the sons was also
produced. The said confirmation deed states that there was
an unregistered partition affected on 24.08.1990 and that
the daughters including the appellants were given separate
extents of movable and immovable properties. It is
submitted that the signature of certain of the parties were
identified by R.Pushpalatha, one of the appellants and
S.Chandrakantha and Savithri, two of the other sisters were
witnesses to the document. It is submitted that the
registered Deed of Confirmation of Partition having already
been executed in the year 2002, the daughters would have
no right to claim their share in the properties since partition
already stood effected.
8. Having considered the contentions advanced and
in the light of the fact that the Confirmation Deed in respect
of the partition was produced by the appellants themselves
along with the plaint and since it was the said deed of
partition which was taken into account by the Court for
rejecting the plaint, we are of the opinion that the
contention raised by the appellants that the plaint has been
-
rejected accepting the unsubstantiated contentions of the
defendants cannot be accepted by any stretch of
imagination. It is clear that there was a partition effected in
the family in the year 1990 and the daughters had been
given properties in the said partition. The fact of the said
partition had been confirmed by executing a confirmation
deed which was registered in the year 2002 and in which
one of the appellants have signed the same to identify the
signatories who are her mother and brothers. The appellants
therefore cannot plead ignorance of the partition which has
occurred in the family in the year 1990 or the Confirmation
Deed in the year 2002.
9. In the above view of the matter and in view of
the contention of the appellants that the suit properties were
joint family properties, we are of the opinion that the
partition effected in 1990 which is specifically affirmed in the
registered Deed of Confirmation of Partition registered in the
year 2002, would stand in the way of the claim of the
daughters seeking partition and separate possession of the
properties belonging to their Late father.
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10. In the above view of the matter, we are of the
opinion that there is no merit in the appeal. The appeal
accordingly fails and the same is dismissed with costs.
All pending interlocutory applications shall stand
dismissed.
Sd/-
(ANU SIVARAMAN)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
cp*
