[Cites 2, Cited by 0]
Karnataka High Court
Sri. Munikrishnappa vs Sri. Bachappa on 2 December, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 929 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.929 OF 2023 (PAR)
BETWEEN:
SRI. MUNIKRISHNAPPA
S/O SULALAPPA
AGED ABOUT 56 YEARS
R/AT ANAKANUR VILLAGE
KASABA HOBLI
CHIKKABALLAPURA TALUK
...APPELLANT
(BY SRI MANJUNATHA RAO BHOUNSLE, ADVOCATE)
AND:
1. SRI. BACHAPPA
S/O SULALAPPA
Digitally signed
by DEVIKA M AGED ABOUT 62 YEARS
R/AT ANAKANUR VILLAGE
Location: HIGH
COURT OF KASABA HOBLI
KARNATAKA CHIKKABALLALPURA TALUK
NOW R/AT BALENAHALLI VILLAGE
BEECHAGANAHALLI POST
GUDIBANDE TALUK
2. SMT. MUNIRATHANAMMA
W/O PAPAIAH K.N
AGED ABOUT 72 YEARS
R/AT PERESANDRA VILLAGE
MANDIKAL HOBLI
CHIKKABALLAPURA TALUK
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RSA No. 929 of 2023
HC-KAR
3. SMT. LAKSHMIDEVAMMA
W/O BACHAPPA
AGED ABOUT 57 YEARS
R/AT ANAKANUR VILLAGE
KASABA HOBLI
CHIKKABALLALPURA TALUK
NOW R/AT BALENAHALLI VILLAGE
BEECHAGANAHALLI POST
GUDIBANDE TALUK
4. SRI. L.F. PATIL
S/O FAKIRGOWDA PATIL
AGED ABOUT 82 YEARS
R/AT NO.1606, 4TH CORSS
6TH MAIN, RPC LAYOUT
VIJAYANAGARA, 2ND STATE
BENGALURU
5. SRI MITULAL
S/O LATE BHAVARILAL
AGED ABOUT 67 YEARS
R/A SY. NO.371
GINAGERI VILLAGE
KOPPALA TALUK
...RESPONDENTS
(BY SRI PRAKASH M H, ADVOCATE FOR R1 & R3;
SRI RAMESH M N, ADVOCATE FOR R4;
V/O DT.25.11.2025, NOTICE TO R2 & R5 D/W)
THIS RSA IS FILED U/S.100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 06.02.2023 PASSED IN
R.A.NO.13/2021 ON THE FILE OF THE PRINCIPAL JUDGE,
FAMILY COURT, CHIKKABALLAPUR AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
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RSA No. 929 of 2023
HC-KAR
ORAL JUDGMENT
This second appeal is filed against the concurrent
finding of the Trial Court and the First Appellate Court.
2. This matter is listed for admission. Heard the
learned counsel appearing for the respective parties.
3. The factual matrix of case of plaintiff before the
Trial Court that plaintiff and defendant No.1 constituted
Hindu Undivided Joint Family and also it is the contention
that suit schedule properties are the ancestral and joint
family properties of the plaintiff and defendant No.1. The
plaintiff is entitled for a share in respect of Item No.1 to
10 properties. Defendant Nos.1 and 3 appeared and filed
written statement contending that there was a family
partition on 21.04.1989 and hence, the parties have lost
the nature of jointness and the family properties by metes
and bounds. Hence, there was no status of joint family as
on the date of filing of the suit. It is contended that suit
schedule properties have been purchased by defendant
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No.1 and some of the properties by defendant No.3 from
their own independent income, thus, they have their self-
acquired properties i.e., Item Nos.2, 3, 5 to 8.
4. The Trial Court having considered the pleadings
of the parties, framed the Issues and Additional Issue and
allowed the parties to lead their evidence. The Trial Court
having considered both oral and documentary evidence
placed on record, taken note of earlier partition of the year
1989 in paragraph 14. The main contention of the counsel
appearing for the plaintiff that in the said partition, half
share was allotted to the share of both plaintiff and
defendant No.1 and hence, they continued to be joint till
today. But defendant No.1 denies the issue and strongly
contends that in the said family partition, properties were
divided by metes and bounds and there was no jointness
after the partition and defendant No.1 independently
purchased certain properties. The Trial Court having
considered the recital of the said document and also the
oral and documentary evidence, in paragraph 16 comes to
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the conclusion that if we carefully peruse the above
proposition of law regarding partition and Mitakshara Law,
once there is a severance of joint family, if the joint family
members intend to continue, they can continue only as
tenants in common and there cannot be a partial partition
between some of the family members. While affecting
partition, it is true that same may be effected partially in
respect of properties and joint family members can retain
their right to effect partition in respect of some other
properties. The Trial Court also taken note of Ex.P8-
partition deed and held that Ex.P8 was effected by
Sulalappa that is the father of the plaintiff along with his
brother Venkatarayappa. When father effects partition, no
doubt, partition will be full and complete and if there is
any intention seeking for a partial partition, Sulalappa
being a father and head of the family as a Kartha would
have expressed his intention regarding effecting a partial
partition and no provision under Hindu law provides a
further to effect an incomplete partition between the
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members of the joint family. Once, partition is effected, it
is presumed that the jointness is severed and the
members of the joint family will become tenants in
common if they continues to enjoy the family properties.
5. The Trial Court also taken note of the answer
elicited from the mouth of PW1 in the cross-examination in
paragraph 19 and extracting the admission, the Trial Court
comes to the conclusion that these admissions are very
clear that after the severance of joint family under Ex.P8
all the three sons of Sulalappa are residing separately and
both plaintiff and defendant No.1 have constructed their
respective houses and they are raising crops in their
respective 1/4th share and defendant No.1 has got dug a
bore-well in his share. These admissions clearly indicate
that after the family partition, both plaintiff and defendant
No.1 are residing separately and independently by
enjoying their respective properties allotted to their share.
Admittedly, this Ex.P8, the family partition was effected in
year 1989 and the present suit is filed in 2007. The
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conduct of the plaintiff in keeping silent from 1989 to 2007
itself shows that he was jealous with the improvement
caused by defendant No.1 to his properties. Once,
defendant No.1 purchased certain properties
independently, out of jealous, this plaintiff filed the
present suit just to harass defendant No.1 knowing fully
well that those properties were purchased by defendant
No.1 from his own income.
6. The Trial Court having considered the admission
on the part of PW1 as well as even considered the
admission on the part of PW2 and PW3, who were
examined on behalf of the plaintiff and in their affidavits in
chief, they have supported the case of plaintiff. But PW2
Narayanappa claims himself to be an attesting witness to
Ex.P17 which is a Will executed by the mother of plaintiff
Eramma. In his cross-examination also he admitted that in
the survey number mentioned in the Will, Munikrishnappa
and Bachappa each having 7½ guntas. Apart from that
PW3 evidence also extracted in paragraph 21 wherein he
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categorically admits that after the partition, the plaintiff
and defendant and the father and also the brother
Chennappa are cultivating the property separately to the
extent of 1/4th share. He also admits that the Will was
executed by his father in favour of Munikrishnappa and
Bachappa and in terms of the said Will also they are
cultivating the property to the extent of 7½ guntas and so
also the admission on the part of PW4 is also extracted.
7. The Trial Court having considered all these
materials comes to the conclusion that there is no
existence of joint family and subsequent to the partition in
the year 1989 they are independently cultivating the
property to the extent of 1/4th share and also constructed
the separate house and also material discloses that the
defendants have purchased other items of the property.
Having considered the material on record, the Trial Court
answered Issue Nos.1 and 2 as negative and Issue Nos.3
and 4 as affirmative and Additional Issue also as
affirmative with regard to the claim made by defendant
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No.3 that defendant No.1 had purchased the properties
independently out of his income. Being aggrieved by the
judgment of the Trial Court, an appeal was preferred
before the First Appellate Court in R.A.No.13/2021.
8. The First Appellate Court also having considered
the grounds which have been urged in the appeal,
formulated the points for consideration. The First Appellate
Court having reassessed the material on record considered
the document of Ex.P8 and held that the intention of the
parties were also very clear that they wanted to live
independently since there is persistent difference of
opinion between the parties. The First Appellate Court
also considered the admission on the part of witnesses
i.e., PW1 to PW4 wherein all the witnesses have
categorically admitted that there was a division and also
cultivating separately even not only the partitioned
property even in terms of the Will executed by the father
to the extent of 7½ guntas also they are cultivating
separately and the same was taken note of in paragraphs
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32 to 37. The First Appellate Court also taken note of the
documentary evidence which are marked in paragraph 38
and comes to the conclusion that Trial Court has not
committed any error in appreciating both oral and
documentary evidence placed on record and confirmed the
judgment of the Trial Court. Being aggrieved by the
concurrent finding of both the Courts, the present second
appeal is filed before this Court.
9. The learned counsel appearing for the appellant
would vehemently contend that both the Courts have
committed an error in dismissing the case of the plaintiff.
The counsel also brought to notice of the Court to the
recitals of Ex.P8 and would vehemently contend that
though there was a division in the year 1989 but
properties was allotted in favour of the plaintiff and
defendant jointly and there was no any division among
them. The counsel would vehemently contend that there is
a perversity in the finding of both the Courts. Hence, the
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matter requires to be admitted framing substantial
question of law.
10. Per contra, the learned counsel appearing for
the respondents would vehemently contend that though
document stands in joint name but they are cultivating the
properties separately and both Trial Court and First
Appellate Court taken note of admission of the part of PW1
to PW4 as well as even with regard to the partition of the
year 1989 and subsequently, the execution of the Will and
in terms of the Will also cultivating separately and the
same is elicited from the mouth of PW3 so also PW4. All
these materials were considered and held that Trial Court
has not committed any error in dismissing the case of the
plaintiff.
11. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material
on record, it discloses that there is no dispute between the
parties that there was a partition in the year 1989 but only
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contention of the appellant that in the year 1989 partition
was effected among the three sons and father jointly
allotted the share in favour of the plaintiff and defendant
and they are cultivating together and the properties are
acquired out of the joint nucleus. In order to substantiate
the same, nothing is placed on record. Apart from that the
Trial Court taken note of the admission on the part of PW1
as well as PW2 to PW4 and so also discussion was made
with regard to the admission by the Trial Court. The Trial
Court considering the admission on the part of PW2 and
PW3 wherein they categorically admitted the partition and
cultivating the property 1/4th share of the plaintiff and
defendant separately and the evidence of PW4 also
considered by the Trial Court. The Trial Court also taken
note of other suit in O.S.No.145/2010 filed by one of the
daughter. When already there was a partition and also
there is a clear admission on the part of PW1 as well as his
own witnesses PW2 to PW4 that there was a division and
separately cultivating the properties and they are enjoying
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the properties including construction of their respective
houses, the Trial Court comes to the conclusion that
defendant No.1 had purchased the properties out of his
own income and dismissed the case of the plaintiff. The
First Appellate Court also re-appreciated the material on
record in paragraphs 33 to 39 holding that there was a
division and also enjoying the properties separately to the
extent of 1/4th share and also discussed the oral evidence
of PW1 to PW4 in paragraphs 31 to 33 and also taken note
of the status of document Ex.P8 in paragraph 29 and held
that no doubt, as per Ex.P5, P13 and P15 the RTC extracts
are stands in the joint name. But categorical admission
given by the plaintiff and his witnesses clinches that the
RTCs were kept intact, but they are residing separately
and cultivating the properties separately. Hence, I do not
find any perversity in the finding of both the Courts since,
both question of fact and question of law are considered
rightly by both the Courts. Hence, no ground is made out
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to admit the appeal and to frame the substantial question
of law invoking Section 100 of CPC.
12. In view of the discussions made above, I pass
the following:
ORDER
The second appeal is dismissed.
In view of dismissal of the main appeal, I.As. if any,
do not survive for consideration and the same stand
dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN
