[Cites 3, Cited by 0]
Karnataka High Court
Kasturi Bai And Ors vs Gurappa And Ors on 18 December, 2025
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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RSA No. 200292 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO. 200292 OF 2019 (PAR)
BETWEEN:
1. KASTURI BAI
W/O SHANKAR @ SHANKERAPPA,
AGED ABOUT 59 YEARS, OCC: HOUSEHOLD,
R/O. VILLAGE BAPUR, TQ. & DIST. BIDAR.
(DELETED AS PER ORDER DATED 11.09.2024)
2. SHOBHA W/O BABURAO,
AGED ABOUT 39 YEARS, OCC: HOUSEHOLD,
R/O. BAGDAL, TQ. & DIST. BIDAR.
KAVITA W/O NAGSHETTY.
DIED DURING THE PENDENCY OF THE APPEAL,
Digitally signed by WITHOUT ANY ISSUES, HER HUSBAND IS ALSO
SHIVALEELA
DATTATRAYA UDAGI DIED, SO DELETED.
Location: HIGH
COURT OF 3. SHANTAMMA W/O SHANKERAPPA,
KARNATAKA
AGED ABOUT 27 YEARS, OCC: HOUSEHOLD,
R/O BAPUR, TQ. & DIST. BIDAR.
4. SRIDEVI D/O SHANKERAPPA,
AGED ABOUT 28 YEARS, OCC: STUDENT,
R/O. VILLAGE BAPUR, TQ. & DIST. BIDAR.
...APPELLANTS
(BY SRI. K. M. GHATE, ADVOCATE
V/O DATED 11.09.2024 A2 TO A4 ARE TREATED AS LRS OF
DECEASED A1)
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RSA No. 200292 of 2019
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AND:
1. GURAPPA S/O IRAPPA,
AGED ABOUT 59 YEARS, OCC: AGRICULTURE,
R/O. VILLAGE BAPUR,
TQ. & DIST. BIDAR.
(DEAD BY LRS)
1A) KAMALABAI W/O LATE. GURAPPA,
AGE: 79 YEARS, OCC: HOUSEHOLD & AGRICULTURE,
R/O. BAPUR NOW AT: MOGDAL,
TQ & DIST: BIDAR.
1B) CHANDRAKALA W/O KALAPPA
(D/O LATE.GURAPPA),
AGE: 45 YEARS, OCC: HOUSEHOLD & AGRICULTURE,
R/O. BAPUR, NOW AT: MOGDAL,
TQ. & DIST. BIDAR.
1C) SUVARNA W/O SANTOSH,
(D/O LATE. GURAPPA)
AGE: 36 YEARS, OCC: HOUSEHOLD AGRICULTURE,
R/O: BAPUR NOW AT: MOGDAL,
TQ. & DIST. BIDAR
1D) SANGEETA W/O DINESH (D/O GURAPPA),
AGE: 32 YEARS, OCC: HOUSEHOLD & AGRICULTURE,
R/O: BAPUR NOW AT: MOGDAL,
TQ. & DIST. BIDAR
1E) ANITA W/O SIDHARUDH (D/O LATE. GURAPPA)
AGE: 28 YEARS,
OCC: HOUSEHOLD & AGRICULTURE,
R/O: MUTTANGI, TQ. HUMNABAD, DIST. BIDAR.
2. ΑΝΝΕΡΡA S/O IRAPPA
AGED ABOUT: 54 YEARS, OCC: AGRICULTURE,
R/O: VILLAGE BAPUR, TQ. & DIST. BIDAR
3. SHARANAPPA S/O IRAPPA
AGED ABOUT: 50YEARS, OCC: AGRICULTURE,
R/O: VILLAGE BAPUR,
TQ. & DIST. BIDAR.
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RSA No. 200292 of 2019
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4. AKRAMKHAN S/O NOORKHAN PATEL,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O. VILLAGE TOLAMADAGI,
TQ. HUMNABAD, DIST. BIDAR
...RESPONDENTS
(R1(A), R1(C) and R1(D) ARE SERVED
V/O DATED 05.01.2022 NOTICE TO R2 DISPENSED WITH.
V/O DATED 20.06.2023 NOTICE TO R1(B) DISPENSED WITH.
SRI. HARSHAVARDHAN R. MALIPATIL, ADVOCATE FOR R3
R4 SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC PRAYING TO IT IS MOST RESPECTFULLY
PRAYS BEFORE THIS HON'BLE COURT, PLEASED TO ORDER
FOR CALLING THE RECORDS OF R.A.NO.6/2013 ON THE FILE
OF PRL. SENIOR CIVIL JUDGE AND CJM BIDAR DATED
05.08.2019 AND O.S.NO.12/2009 ON THE FILE OF II ADDL.
CIVIL JUDGE AT: BIDAR DATED: 03.11.2012 AND PLEASE TO
ALLOW THE APPEAL, SET ASIDE THE AFORESAID JUDGMENT,
DECREE AND THEREBY PLEASED TO DECREE THE SUIT OF THE
APPELLANTS - PLAINTIFFS WITH COSTS THROUGHOUT AS
PRAYED FOR.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.11.2025, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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RSA No. 200292 of 2019
HC-KAR
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
CAV JUDGMENT
This second appeal is by the plaintiffs aggrieved by
the judgment and decree dated 03.11.2012 passed in
O.S.No.12/2009 on the file II Additional Civil Judge, Bidar
(for short, 'the Trial Court') and confirmed by the
judgment and decree dated 05.08.2019 passed in
R.A.No.6/2013 on the file of Prl. Senior Civil Judge and
CJM, Bidar (for short, 'the First Appellate Court'), in and by
which suit of the plaintiffs for partition and separate
possession has been dismissed.
2. The subject matter of suit are the following
properties (for short, 'suit schedule properties').
Sl.No. Sy.No. Extent Revenue Location
land assessment
(a-gs)
1. 79/3 1-33 9-74 Bapur,
Tq.Bidar
2. 79/6 1-16 4-47 Bapur,
Tq.Bidar
3. 101/2 1-20 4-5 Mannaekheli
Total 4-29 14.21
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3. The case of the plaintiffs is that;
3.1. One Irappa was the owner of the suit schedule
properties. He passed away leaving behind defendants
Nos.1 to 3 and one Shanker @ Shankerappa. Plaintiff No.1
is the wife and plaintiff Nos.2 to 5 are the children of said
Shankerappa. On the death of said Irappa, revenue
records in respect to the suit properties were mutated in
the name of the defendants and deceased-Shankerappa.
After death of Shankerappa, defendant Nos.1 to 3 got his
name deleted from the revenue records and retained only
their names as owners and possessors of the suit
properties.
3.2. That upon the death of Shankerappa, plaintiffs
succeeded to 1/4th share in the suit properties as his only
heirs. Though, defendants gave share in the produce of
food grains from the suit properties for about two years
after demise of Shankerappa, thereafter they denied even
the said share, constraining the plaintiffs to file the suit for
partition and separate possession.
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4. Defendant Nos.1 to 3 in their written statement
while admitting the relationship, contended that;
4.1. That after the demise of Irappa, names of
defendants and Shankerappa, the husband of plaintiff No.1
and father of plaintiff Nos.2 to 4 was mutated in respect of
land bearing Sy.No.79/E measuring 36 guntas, except the
said land, no other lands were transferred in the name of
Shankerappa. As such, there is no question of deleting the
name of Shankerappa as alleged. That name of Irappa
continued in respect of land bearing Sy.No.79/6 measuring
01 acre 16 guntas and Sy.No.79/4 measuring 01 acre
even after his death.
4.2. That there was a family partition between the
two branches of Irappa and his brother Channabasappa, in
which certain properties, namely, land in Sy.No.79/3
measuring 01 acre and 33 guntas; land in Sy.No.79/6
measuring 01 acre and 16 guntas; land in Sy.No.79/E
measuring 36 guntas; and land in Sy.No.79/4 measuring
01 acre were partitioned and accordingly, land in
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Sy.No.79/6 measuring 01 acre 16 guntas and Sy.No.79/3
measuring 01 acre 33 guntas were allotted to the heirs of
late Irappa and other lands in Sy.No.79 were allotted to
Kashappa and Pandappa sons of Channabasappa.
4.3. That the land bearing Sy.No.101/2 measuring 01
acre 20 guntas and land bearing Sy.No.96/1 measuring 32
guntas are the lands that were situated in Manna-E-Kheli,
that were allotted to the share of plaintiff No.1.
4.4. That the aforesaid partition, was subsequently
reduced into writing in the document called as 'Hanchike
Patra'.
4.5. That apart, on 14.02.2002 since the name of
defendant Nos.1 and 3 along with plaintiff No.1 was
appearing in the revenue records and since the land in
Sy.No.96/1 measuring 32 guntas was exclusively allotted
to the share of plaintiff No.1, as the plaintiffs were
intending to sell the same, defendant Nos.1 and 2 joined
the plaintiff No.1 in selling the said land in Sy.No.96/1 in
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favour of one Bakkappa. In the said deed of sale it is
specifically mentioned that the land was sold for
performance of the marriage of the daughters of plaintiff
No.1-Kasturibai. Thus, entire sale consideration was used
by plaintiff No.1 for performance of marriage of her
daughters. The names of defendant Nos.1 and 3 was just
shown nominally. The plaintiffs have not included the said
land in Sy.No.96/1, measuring 32 guntas in the suit
property and have thus suppressed the true and material
facts.
4.6. That records of right pertaining to land bearing
Sy.No.101/2 measuring 01 acres 20 guntas situated in
Manna-E-Kheli, though stand in the name of plaintiff No.1
and defendant Nos.1 and 3, name of defendant No.1 and 2
are nominally appearing. Plaintiffs are in exclusive
possession and enjoyment of the said land. The defendant
Nos.1 and 3 have got no right, title and interest in respect
to the said land, as the same has been exclusively allotted
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to the share of plaintiffs. Contending as above, sought for
dismissal of the suit.
5. On the above said pleadings, the Trial Court
framed the following issues:
1. Whether plaintiffs prove that suit schedule
properties are joint family properties?
2. Whether the defendants prove that suit is bad for
non-joinder of necessary parties?
3. Whether suit is bad for partial partition?
4. Whether the defendants prove the earlier
partition?
5. What order or decree?
ADDITIONAL ISSUES
1. Whether plaintiffs are entitled for share of 1/4th
in the suit properties?
6. Plaintiffs examined herself as PW-1 and got
exhibited six documents as Exs.P1 to P6. On behalf of
defendants, defendant No.1 examined himself as DW.1
and two other witnesses as DWs.2 and 3 and exhibited
three documents which are at Ex.D.1 to D3.
7. On appreciation of evidence, the Trial Court
answered issue Nos.1 and additional issue No.1 in
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negative and issue Nos.2, 3 and 4 in the affirmative and
consequently, dismissed the suit of the plaintiffs.
8. Being aggrieved, plaintiffs preferred the regular
appeal in R.A.No.6/2013. On re-appreciation, the First
Appellate Court framed the following points for its
consideration:
1. Whether the Judgment and decree passed by the
trial Court is capricious, adverse and arbitrary?
2. Whether the judgment and decree of the Trial
Court call for interference?
3. What order?
9. The First Appellate Court answered point Nos.1
and 2 in the negative and consequently dismissed the
appeal. Being aggrieved by the same, the plaintiffs are
before this Court.
10. This Court by an order dated 07.07.2023
admitted this appeal for consideration of following
substantial question of law:-
A. Whether the Courts below were justified in
coming to the conclusion that the properties
had been partitioned prior to the filing of the
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suit as per Ex.D.3 especially when Ex.D.3
indicates that it was an actual division of the
properties and the same was an unregistered
document.?
B. Whether the Appellate Court was justified in
dismissing the appeal without noticing the
application for additional evidence filed bythe
appellant.?
11. Sri. K. M. Ghate, the learned counsel appearing
for the plaintiffs taking this Court through the records
submitted that the Trial Court and the First Appellate
Court have grossly erred in relying upon the memorandum
of partition (Hanchike Patra) dated 09.08.2004 produced
at Ex.D.3 which is a document created by the defendants.
The said document not having been registered cannot be
acted upon. The Trial Court and the First Appellate Court
relying upon the stray admission made by plaintiff No.1,
have proceeded to dismiss the suit. The PW.1 had merely
admitted to the suggestion made regarding the partition
that had taken place between Irappa, Kashappa and
Pandappa, which are two different branches. The plaintiff
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No.1 had specifically denied any partition amongst the
family members of Irappa's Branch. The plaintiffs have not
been given any share in the family property. However, the
Courts wrongly accepted partition having taken place on
09.08.2004.
12. That reliance placed on by the defendant to the
deed of sale dated 14.02.2002, under which land in
Sy.No.96/1 situated Manna-E-Kheli was sold in favour of
one Bakkappa, to contend, the partition had been effected
was erroneous. The said deed of sale was executed jointly
by plaintiff No.1 and defendant Nos.1 and 3. All of them
have received the sale consideration. Since, the said
registered document reflects all the three of them having
sold the property, the same cannot be considered to
evidence the alleged partition having taken place amongst
the members of Irappa's Branch. PW.3, the witness was
examined and the plaintiffs have deposed that
consideration amount paid under the said deed of sale was
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not only used for the marriage, but was also used for
other expenses by all the plaintiffs and the defendants.
13. That DW.1 in the cross-examination has
admitted that the partition document of the year 2004
does not bear the date, month and year. The said
document not having been proved in a manner known to
law could not have been relied upon by the Trial Court and
the First Appellate Court. The partition deed produced at
Ex.D.3 is clearly a concocted document which did not
create any, right, title or interest in the properties, as
there was no partition of the family properties. The Trial
Court and the First Appellate Court have not appreciated
this aspect of the matter, resulting in perversity of the
judgment.
14. Per contra, Sri. Harshvardhan R. Malipatil,
learned counsel appearing for the defendants submits that
the document at Ex.D.3 records the factum of previous
partition that had taken place between two Branches of
families of Irappa and Channabassappa, who are the
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descendants of common propositus Madeppa Nidgundi.
That the perusal of the said document would indicate that
the properties which are held by Madeppa Nidgundi was
partitioned and there was equitable distribution of the
shares. It also evidences that the parties had indeed acted
upon the said partition, in that, plaintiffs who were allotted
land in Sy.No.96/1 measuring 32 guntas of land in village
Manna-E-Kheli had sold and received the entire sale
consideration to meet her financial requirements. The fact
that she has not included the said property in the suit
partition, clarifies the position of the prior partition. A
record of previous partition need not be registered.
15. That the overall reading of the circumstances
would indicate that the property belongs to the joint family
was equitably distributed in the partition that had taken
place even prior to execution of the Hanchike Patra
partition on 09.08.2004. The language used in Ex.D.3, he
submitted, the same is record of past transaction, which is
well within the knowledge of the plaintiffs. He submitted
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that the land in Sy.No.101/2 measuring 01 acre 20 guntas
situated in Manna-E-Kheli village is still available which
was allotted to the share of plaintiffs in terms of the
aforesaid Hanchike Patra and the defendants are ready
and willing to comply with the requirements if any in
making over the said property fully and absolutely in
favour of plaintiffs. Hence, submits that the substantial
questions of law raised be answered in favour of the
defendants and dismissed the suit.
16. Heard. Perused the records.
17. Before adverting to the rival contentions, it is
appropriate to refer to the admitted genealogy of the
parties which is as under:-
FAMILY PEDIGREE
Madeppa Nidgundi
Irappa Chanbasappa
Gurappa D-1 Shankrappa Anneppa Sharnappa Pandappa Kashappa
Expired D-2 D-3
Wife
Kasturibai
Pltf-1 (died)
Shobha Kavitha Shantamma Sridevi
Pltf-2 Pltf-3 Pltf-4 Pltf-5
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18. As per genealogy Madeppa Nidgundi the
properties had two sons, namely, Irappa and
Channabasappa. Irappa had four sons namely, Gurappa
(defendant No.1), Shankerappa (husband of plaintiff No.1
and father of plaintiff Nos.2 to 5), Anneppa (defendant
No.2) and Sharnappa (defendant No.3). Channabasappa
had two sons namely, Pandappa and Kashappa. There is
no dispute with regard to this genealogy.
19. There is also no dispute with regard to family
possessing the suit properties. However, according to the
defendants there is another land in Sy.No.96/1 of Manna-
E-Kheli village which is not included in the suit.
20. Plaintiffs contended that there is no partition of
the joint family properties and they are entitled for 1/4th
share in the suit schedule properties, which are three
items of the properties as mentioned above.
21. Defendants on other hand have contended that
upon the demise of Shankerappa, there was a partition
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between the two branches of family of Irappa and
Channabasappa which was subsequently reduced into
writing as per Ex.D.3 and the parties have also acted upon
the said partition. Though plaintiffs have included three
items of properties referred to above, she has not
mentioned about Sy.No.96/1 measuring 32 guntas, which
was admittedly sold jointly by plaintiffs and the defendant
Nos.1 to 3.
22. Perusal of Ex.D.3 -Hanchike Patra indicates that
prior partition had been entered into between two
branches of Irappa and Channabasappa, in terms of said
partition, shares in the family properties have been
allotted as under:-
A) To the branch of Irappa;
a. land in Sy.No.79/3 measuring 01 acre 33
guntas and Sy.No.79/6 measuring 01 acre
16 guntas has been allotted to the share of
Gurappa, Anneppa and Sharnappa,
defendants No.1, 2 and 3 respectively.
b. lands situated at Manna-E-Khalli village,
have been allotted the plaintiff No.1 Smt.
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Kasturibai wife of deceased Shankreppa,
representing the share of Shankreppa.
B) To the branch of Chanabasappa;
The land in Sy.No.79/E measuring 36 guntas
and land in Sy.No.79/4 measuring 01 acre
has been allotted to the share of Kashappa
and Pandappa sons of Channabasappa.
23. Though, while mentioning the shares that is
allotted to plaintiff No.1 representing her husband -
Shankreppa, no survey of the land is mentioned, It is not
in dispute that only two items of lands bearing Sy.No.96/1
and Sy.No.101/2 are situated at Manna-E-Khelli village,
which according to the defendants were allotted to the
share of plaintiffs. However, plaintiffs have denied this
aspect of the matter.
24. Material evidence made available on record
namely the sale deed produced at Ex.D1 indicates that the
same has been executed on 14.02.2002, wherein names
of three vendors are shown. They are, Gurappa (defendant
No.1), Smt. Kasturibai (plaintiff No.1) and Sharanappa
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(defendant No.3). The recitals and said deed of sale read
that vendors No.1 and 3 and the deceased husband of
vendor No.2 were the joint owners and possessors of the
land in Sy.No.96/1 measuring 32 guntas and that they
being in need of money, for the family necessity, and
vendor No.2 being the manager and head of the family,
for discharging the debts incurred for the marriage of her
daughters had decided to sell the said land for
Rs.20,000/-. It is this material evidence relied upon by the
defendants to contend that Sy.No.96/1 measuring 32
guntas is one of the two items for the properties situated
at Manna-E-Kheli village, which is allotted to the share of
plaintiffs and that in exercise of her right, she has sold the
said land. That since, the said land stood in the joint
names of defendants No.1 and 3 and husband of plaintiff
No.1 namely, Shankreppa, they had joined nominally as
vendors.
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25. Further, the fact of the aforesaid deed of sale
being executed by plaintiff No.1 along with defendant
Nos.1 and 3 is not forthcoming in the plaint.
26. The other contentions of the defendants is that
the second item of the land bearing Sy.No.101/2
measuring 01 a acre 20 guntas situated at Manna-E-Kheli
village is allotted to the share of plaintiffs and that the said
land is still available and the defendants have no claim
over the same.
27. The aforesaid statement in the written
statement and in the deposition read in the light of
contents of the deed of sale dated 14.02.2002 produced at
Ex.D.1, probabalizes the factum of prior partition entered
into amongst two branches of the family's of Irappa and
Channabasappa. The shares allotted to the parties being al
most equal also probabalizes equitable distribution of the
shares.
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28. As rightly contended by learned counsel for the
defendants that Ex.D.3 is a record of prior partition. Sale
deed dated 14.02.2002 is the evidence of same having
been acted upon by the parties much prior of reducing the
factum of prior partition into writing as per Ex.D.3. The
said document being a memorandum of prior partition
does not require registration.
29. The Apex Court in the case of Kale and others
vs. Deputy Director of Consolidation and others,
reported in (1976) 3 SCC 119, has held as under in Para
No.10:-
"10. In other words to put the binding effect and the
essentials of a family settlement in a concretized form,
the matter may be reduced into the form of the following
propositions:
(1) The family settlement must be a bona fide one so as
to resolve family disputes and rival claims by a fair and
equitable division or allotment of properties between the
various members of the family;
(2) The said settlement must be voluntary and should not
be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which
case no registration is necessary;
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(4) It is well settled that registration would be necessary
only if the terms of the family arrangement are reduced
into writing. Here also, a distinction should be made
between a document containing the terms and recitals of
a family arrangement made under the document and a
mere memorandum prepared after the family
arrangement had already been made either for the
purpose of the record or for information of the court for
making necessary mutation. In such a case the
memorandum itself does not create or extinguish any
rights in immovable properties and therefore does not fall
within the mischief of Section 17(2) of the Registration
Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family
arrangement must have some antecedent title, claim or
interest even a possible claim in the property which is
acknowledged by the parties to the settlement. Even if
one of the parties to the settlement has no title but under
the arrangement the other party relinquishes all its claims
or titles in favour of such a person and acknowledges him
to be the sole owner, then the antecedent title must be
assumed and the family arrangement will be upheld and
the courts will find no difficulty in giving assent to the
same;
(6) Even if bona fide disputes, present or possible, which
may not involve legal claims are settled by a bona fide
family arrangement which is fair and equitable the family
arrangement is final and binding on the parties to the
settlement."
30. The Trial Court and the First Appellate Court
adverting to the very deposition of plaintiff No.1 who
examined herself as PW.1, admitting to the distribution of
the shares as extracted at Para No.25 of the judgment of
the First Appellate Court, have come to the conclusion that
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plaintiffs has had the knowledge of prior partition. They
have also adverted to the revenue records reflecting the
name of plaintiff No.1 in respect of land in Sy.No.101/2
measuring 01 acre 20 guntas confirming the partition had
taken place in terms of Ex.D.3 - Hanchike Patra.
31. In the light of the aforesaid concurrent findings
and conclusion on facts arrived at by the Trial Court and
the First Appellate Court, this Court do not find any
illegality error or irregularity in dismissing the suit and the
appeal filed by the plaintiffs.
32. The plaintiffs had filed an application under
Order XLI Rule 27 of CPC, before the First Appellate Court
seeking production of certified copy of agreement of sale
dated 22.06.2016, for the purported purpose of bringing
on record the fact that defendants - respondent No.3,
during the pendency of appeal was making efforts to
change the agricultural land by alienating the same to the
third party. In the affidavit accompanying the said
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application, nothing is mention as to the relevancy of said
document, for the purpose of determination of the lis
between the parties. Though, the First Appellate Court has
not specifically adverted to the said application, in the light
of the discussion above, with regard to the prior partition
of the family properties, this Court do not see any
prejudice being caused to the plaintiffs in non-
consideration of the said application.
33. The substantial questions of law answered
accordingly.
34. The appeal is dismissed.
35. The judgment and decree dated 03.11.2012
passed in O.S.No.12/2009 on the file of II Addl. Civil
Judge, Bidar and judgment and decree dated 05.08.2019
passed in R.A.No.6/2013 on the file of Prl. Senior Civil
Judge and CJM, Bidar, are confirmed.
Sd/-
(M.G.S.KAMAL)
JUDGE
SDU/List No.: 1 Sl No.: 23
CT:PK
