Karnataka High Court
Smt. Mangala W/O Madhusudhan Katke ... vs Sri Ashok S/O Girimallappakoti Aliyas ... on 2 June, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2025:KHC-D:7260
RFA No. 100182 of 2017
C/W RFA.CROB No. 100009 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 2ND DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO. 100182 OF 2017 (PAR/POS)
C/W
RFA CROSS OBJ NO. 100009 OF 2024
IN RFA NO. 100182 OF 2017:
BETWEEN:
ASHOK GIRIMALLAPPA KOTI
@ KOTI ASHOK
S/O GIRIMALLAPPA,
AGE: 59 YEARS,
OCC: CLOTH MERCHANT,
R/O: PARASAPURA VILLAGE,
HUBBALLI - 580 038
...APPELLANT
(BY SRI.V.M.SHEELVANT, ADVOCATE)
Digitally signed by
MALLIKARJUN
AND:
RUDRAYYA
KALMATH
MALLIKARJUN
RUDRAYYA Location: HIGH
COURT OF
KALMATH KARNATAKA
DHARWAD BENCH 1. SMT. MANGALA MADHUSUDHAN KATKE
Date: 2025.06.02
17:30:51 +0530
@ RADHIKA M. KATKE,
D/O GURAPPA BASAPPA GHODKE,
W/O MADHUSUDAN KATKE,
AGE: 48 YEARS,
R/O: GOPALA,
SHIVAMOGGA - 577 201
2. SADHANA SHIVAKUMAR ALAGAVADI,
D/O GURAPPA BASAPPA GHODKE,
W/O SHIVAKUMAR ALAGAVADI,
AGE: 55 YEARS,
R/O SHOP NO.9,
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RFA No. 100182 of 2017
C/W RFA.CROB No. 100009 of 2024
HC-KAR
TIMES CENTER,
MAROLI CHURCH,
R.C. MARG, CHEMBUR,
MUMBAI - 590 011.
3. MOHANA GURAPPA CHODKE,
S/O GURAPPA BASAPPA GODKE,
AGE: 67 YEARS,
R/O: BUILDING NO, 19-A,
ROOM NO.105, 1ST FLOOR,
MILAN CO-OPERATIVE HOUSING SOCIETY,
R.C. MALL, VASHI NAKA,
CHEMBUR, MUMBAI - 590 011.
4. DAYANANDA GURAPPA GHODKE,
S/O GURAPPA BASAPPA GODKE,
AGE: 57 YEARS,
R/O: GINJAPPA HALL,
2ND CROSS, AYODYA NAGAR,
NEAR JOSHI HOSPITAL,
OLD-HUBBALLI - 580 038.
5. RAJENDRA GURAPPA GHODKE,
S/O GURAPPA BASAPPA GODKE,
AGE: 51 YEARS,
R/O: NO. 82, SRI. RENUKA NIVASA,
2ND MAIN, OPP. K.G. HALLI POLICE STATION,
BENGALURU - 560 089.
6. LAXMI DEVARAJ GHODKE
W/O LATE DEVARAJ GHODKE,
AGE: 58 YEARS,
OCC:BASAVESHWARA NAGARA,
NEAR WATER TANK, BALLARI ROD,
POST: KAMPLI,
TQ: HOSAPETE,
DIST: BALLARI - 583 101.
7. SMT. SHREE
W/O RAMESH F. NARAYANKAR
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RFA No. 100182 of 2017
C/W RFA.CROB No. 100009 of 2024
HC-KAR
D/O LATE DEVARAJA GURAPPA GHODKE,
AGE: 32 YEARS,
C/O. VINAYAK XEROX,
KUDLIGERI CIRCLE,
RAMANAGARA, H.B. HALLI - 583 101.
8. KALAVATHI
W/O SHIVARAJ RAO
D/O LATE DEVARAJ GURAPPA GHODKE,
AGE: 29 YEARS,
R/O: KONE ELEVATOR INDIA PVT. LTD.,
ROOM E-A, 207,
ULLAS KANNADA KARWAR,
MALLAPUR TOWNSHIP
(NPCK KAIGA) - 581 343.
9. KUSHBU
W/O SACHIN J.
D/O LATE DEVARAJ GURAPPA GHODKE,
AGE: 28 YEARS,
R/O: 2/1076,
DHORGALLI,
THILAK NAGAR,
ECHALAKARANGI - 590 800.
10 . PRAVEEN
S/O LATE DEVARAJ GHODKE
AGE: MAJOR,
R/O: BASAVESHWARA NAGAR,
NEAR WATER TANK,
BALLARI ROAD,
POST: KAMPLI,
TQ: HOSAPETE,
DIST: BALLARI - 583 101.
11 . KAMALA MUDUKAR GAIKWAD
W/O MUDUKAR GAIKWAD,
D/O GURAPPA BASAPPA GHODKE,
AGE: 70 YEARS,
R/O: DOOR NO.5/121,
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RFA No. 100182 of 2017
C/W RFA.CROB No. 100009 of 2024
HC-KAR
NIVARA HOUSING SOCIETY,
SION, CHUNA BHATTI,
MUMBAI - 590 011.
12 . KASTHURI BAI RAM SHINDE
D/O GURAPPA BASAPPA GHODKE,
AGE: 65 YEARS,
R/O: SECTOR-2,
CO-OPERATIVE HOUSING SOCIETY,
PRAM SAGAR, SHANTHI NAGAR,
ROOM NO.402, BUILDING NO.C-39,
MIRA ROAD EAST,
DIST: THANE,
MUMBAI - 590 011.
13 . KUMUDINI PRAKASH SONAVANE
W/O PRAKASH SONAVANE,
D/O GURAPPA BASAPPA GHODKE,
AGE: 61 YEARS,
R/O: NO.34, 18TH CROSS,
SAGAYA PURUM,
HALL LROAD,
FRASER TOWN,
BENGALURU - 560 089.
14 . SMT.VANDANA DHRUVA KUMAR JADAV
W/O DHRUVA KUMAR JADAV
D/O GURAPPA BASAPPA GHODKE,
AGE: 61 YEARS,
R/O: 2/1076, DHORGALLI
THILAK NAGAR,
ECHALAKARANJI,
MAHARASHTRA - 590 011.
....RESPONDENTS
(BY SRI. SURESH.P.HUDEDAGADDI, ADVOCATE FOR R1 AND
R4;
SRI. MRUTYUNJAY TATA BANGI ADVOCATE FOR R2 AND
R1;
SRI. S.S.JOSHI, ADVOCATE FOR R12;
SRI.M.NAGARAJ ADVOCATE FOR R13,
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NC: 2025:KHC-D:7260
RFA No. 100182 of 2017
C/W RFA.CROB No. 100009 of 2024
HC-KAR
R2, R4: SERVICE HELD SUFFICIENT
R3, R5, R6, R7, R8, R9, R10 AND R11 ARE SERVED,
UNREPRESENTED )
THIS RFA FILED UNDER SEC. 96 READ WITH ORDER 41
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE
DTD:25.01.2017 PASSED IN O.S.NO.366/2014 ON THE FILE OF
THE II-ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, PARTLY
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION, DECLARATION AND MESNE PROFITS.
IN RFA.CROB NO. 100009 OF 2024:
BETWEEN:
1 . SMT. MANGALA MADHUSUDHAN KATKE
@ RADHIKA M. KATKE,
D/O GURAPPA BASAPPA GHODKE,
W/O MADHUSUDAN KATKE,
AGE: 55 YEARS,
OCC: HOUSEHOLD
R/O: GOPALA,
SHIVAMOGGA - 577 201
2 . SMT. SADHANA
W/O SHIVAKUMAR ALAGAVADI,
D/O GURAPPA BASAPPA GHODKE,
AGE: 59 YEARS,
R/O SHOP NO.9,
TIMES CENTER,
MAROLI CHURCH,
R.C. MARG, CHEMBUR,
MUMBAI - 590 011.
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RFA No. 100182 of 2017
C/W RFA.CROB No. 100009 of 2024
HC-KAR
3. SMT. KAMALA MUDUKAR GAIKWAD
W/O MUDUKAR GAIKWAD,
D/O GURAPPA BASAPPA GHODKE,
AGE: 77 YEARS,
OCC: HOUSEHOLD
R/O: DOOR NO.5/121,
NIVARA HOUSING SOCIETY,
SION, CHUNA BHATTI,
MUMBAI - 590 011.
BY GPA HOLDER
SRI. SUBHAS ARUN KATKE,
AGE 53 YEARS,
OCC: BUSINESS,
R/AT: DOOR NO. 803,
SKYLINE BEVERLY PARK,
AMRUTHAHALLI MAIN ROAD,
BENGALURU.
4. SMT.VANDANA DHRUVA KUMAR JADAV
D/O GURAPPA BASAPPA GHODKE,
AGE: 61 YEARS,
R/O: 2/1076, DHORGALLI
THILAK NAGAR, ECHALAKARANJI,
MAHARASHTRA - 590 011.
...CROSS OBJECTORS
(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
AND:
1. SRI ASHOK KOTI
ALIYAS KOTI ASHOK
S/O GIRIMALLAPPA
AGED ABOUT 66 YEARS,
OCC. CLOTH MERCHANT
R/AT PARASAPUR VILLAGE,
TQ. SHIGGAON
DIST. HAVERI - 580 038.
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RFA No. 100182 of 2017
C/W RFA.CROB No. 100009 of 2024
HC-KAR
2. SRI. MOHANA GURAPPA CHODKE,
S/O GURAPPA BASAPPA GODKE,
AGE: 74 YEARS,
R/O: BUILDING NO, 19-A,
ROOM NO.105, 1ST FLOOR,
MILAN CO-OPERATIVE HOUSING SOCIETY,
R.C. MALL, VASHI NAKA,
CHEMBUR,
MUMBAI - 590 011.
3. SRI. DAYANANDA GURAPPA GHODKE,
S/O GURAPPA BASAPPA GODKE,
AGE: 64 YEARS,
R/O: GINJAPPA HALL,
2ND CROSS, AYODYA NAGAR,
NEAR JOSHI HOSPITAL,
OLD-HUBBALLI,
DIST DHARWAD - 580 038.
4. SRI. RAJENDRA GURAPPA GHODKE,
S/O GURAPPA BASAPPA GODKE,
AGE: 58 YEARS,
R/O: NO. 82,
SRI.RENUKA NIVASA,2ND MAIN,
OPP. K.G. HALLI POLICE STATION,
BENGALURU - 560 089.
5. SMT. LAXMI DEVARAJ GHODKE
W/O LATE DEVARAJ GHODKE,
AGE: 65 YEARS,
OCC: HOUSEHOLD
R/AT: BASAVESHWARA NAGARA,
NEAR WATER TANK, BALLARI ROD,
POST: KAMPLI, TQ: HOSAPETE,
DIST: BALLARI - 583 101.
6. SMT. SHREE
W/O RAMESH F. NARAYANKAR
D/O LATE DEVARAJA GURAPPA GHODKE,
AGE: 36 YEARS,
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RFA No. 100182 of 2017
C/W RFA.CROB No. 100009 of 2024
HC-KAR
C/O. VINAYAK XEROX,
KUDLIGERI CIRCLE,
RAMANAGARA,
H.B. HALLI - 583 101.
7. SMT. KALAVATHI
W/O SHIVARAJ RAO
D/O LATE DEVARAJ GURAPPA GHODKE,
AGE: 39 YEARS,
R/O: KONE ELEVATOR INDIA PVT. LTD.,
ROOM E-A, 207,
ULLAS KANNADA KARWAR, MALLAPUR
TOWNSHIP
(NPCK KAIGA) - 581 343.
8. SMT. KUSHBU
W/O SACHIN J.
D/O LATE DEVARAJ GURAPPA GHODKE,
AGE: 28 YEARS,
R/O: 2/1076, DHORGALLI,
THILAK NAGAR,
ECHALAKARANGI - 590 800.
9. SRI. PRAVEEN
S/O LATE DEVARAJ GHODKE
AGE: MAJOR,
R/O: BASAVESHWARA NAGAR,
NEAR WATER TANK,
BALLARI ROAD,
POST: KAMPLI,
TQ: HOSAPETE,
DIST: BALLARI - 583 101.
10. SMT. KASTHURI BAI RAM SHINDE
D/O GURAPPA BASAPPA GHODKE,
AGE: 65 YEARS,
OCC: HOUSEHOLD
R/O: SECTOR-2,
CO-OPERATIVE HOUSING SOCIETY,
PRAM SAGAR,
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RFA No. 100182 of 2017
C/W RFA.CROB No. 100009 of 2024
HC-KAR
SHANTHI NAGAR,
ROOM NO.402,
BUILDING NO.C-39,
MIRA ROAD EAST, DIST: THANE,
MUMBAI - 590 011.
11. SRI. KUMUDINI PRAKASH SONAVANE
W/O PRAKASH SONAVANE,
D/O GURAPPA BASAPPA GHODKE,
AGE: 61 YEARS,
R/O: NO.34,
18TH CROSS,
SAGAYA PURUM, HALL LROAD,
FRASER TOWN, BENGALURU - 560 089.
...RESPONDENTS
(BY SRI. V.M.SHEELVANT ADVOCATE FOR R1;
SRI. S.S. JOSHI ADVOCATE ACCEPTS NOTICE FOR R10
(V/O DATED 15.11.2024);
SRI. M. NAGARAJ, ADVOCATE ACCEPTS NOTICE FOR R11
(V/O DATED 15.11.2024))
THIS RFA.CROB IN RFA NO.100182/2017 FILED UNDER
ORDER XLI RULE 22 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 25.01.2017 PASSED IN O.S.NO.366/2014 ON
THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE,
HUBBALLI, PARTLY DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION, DECLARATION AND
MESNE PROFITS.
THIS APPEAL AND RFA CROB. HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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RFA No. 100182 of 2017
C/W RFA.CROB No. 100009 of 2024
HC-KAR
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
CAV JUDGMENT
RFA No.100182/2017 is filed by the
appellant/defendant No.1 challenging the judgment and
decree dated 25.01.2017 passed in O.S.No.366/2014 by II
Addl. Senior Civil Judge, Hubballi, thereby, the suit filed
for partition is decreed.
RFA Crob. No.100009/2024 is filed by plaintiff Nos.1
and 2 and defendant Nos.10 and 13 (daughters)
challenging the aforesaid judgment and decree, so far as
not granting equal share as that of sons.
2. The parties are referred to as per their ranking
before the trial Court for convenience and easy reference.
3. The brief facts of the case are that:
PLAINT:
Original propositus late Gurappa S/o Basappa
Ghodke and his wife late Smt.Malanabai Gurappa Ghodke
died intestate leaving behind four sons and six daughters
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HC-KAR
by name Sri Mohan Gurappa Ghodke (defendant No.2),
late Sri Devaraj Gurappa Ghodke (father of defendants 6
to 9), Sri Dayanand Gurappa Ghodke (defendant No.3),
Sri Rajendra Gurappa Ghodke (defendant No.4),
Smt.Kamalabai
(defendant No.10), Smt. Kasturibai (defendant No.11),
Smt.Kumudini (defendant No.12), Smt.Sadhana (plaintiff
No.2), Smt. Vandana (defendant No. 13), Smt. Mangala
(plaintiff No. 1) as their legal heirs. The original propositus
Gurappa died on 21.11.1992 and his wife Smt. Manlanabai
died on 03.07.2008. Item No.1 and 2 of plaint 'A' schedule
properties was purchased out of the income derived from
the ancestral properties. But those lands are purchased in
the name of propositus late Gurappa Basappa Ghodke.
Late Gurappa B.Ghodke had no independent income of his
own to purchase those properties in his independent
capacity. Hence, item No.1 and 2 of plaint 'A' schedule
properties are the ancestral properties. Plaint 'B' schedule
property is also the ancestral property. From 1988 till the
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HC-KAR
date of his death i.e., 21.11.1992 the propositus Gurappa
Ghodke was bed ridden due to his advance age and his
memory power was diminished and hence, he never used
to go outside since 1980. During his life time, he had not
made any kind of arrangement by way of partition or he
had not made alienation of the suit schedule properties.
The suit schedule properties are the joint family properties
of the plaintiffs and defendant Nos.2 to 13. Plaintiff Nos.1
and 2 have 2/10th share, defendant Nos.2 to 4 have 1/10th
share each, defendant Nos.5 to 9 together entitled for
1/10th share, defendant Nos.10 to 13 have 1/10th share
each in the suit schedule properties. Defendant No.3 was
the head of the family and he used to cultivate the suit
schedule properties with the assistance of joint family
members. The plaintiffs and defendant Nos.10 to 13
started to reside in their respective marital homes
subsequent to their marriage. Defendant Nos.2 to 4 and
father of defendant Nos.6 to 9 created a fraudulent sale
deed dated 28.04.1999 in favour of defendant No.1
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relating to item No.1 of plaint 'A' schedule property. They
have no right to sell item No.1 of plaint 'A' schedule
property to defendant No.1. The plaintiffs have vested
with right in the property and they have a definite share in
that property and hence, the said sale deed is illegal, null
and void and not binding on their share. On 25.04.2014
they came to know about the execution of sale deed in
favour of defendant No.1. Thereafter, they contacted and
enquired with defendant Nos.2 to 4, but they have not
responded properly. The plaintiffs have preferential right
to purchase the suit schedule property. Defendant No.1 is
not a bonafide purchaser. On the basis of these grounds,
the plaintiffs filed the suit.
4. It is the case of the claimants that plaintiff
Nos.1 and 2, defendant Nos.2 to 4 and defendant Nos.10
to 13 are the children of late Gurappa Basappa Ghodke
(hereinafter referred to as "Gurappa Ghodke"). Defendant
No.5 is the widow of late Devaraj Gurappa Ghodke and
daughter-in-law of Gurappa Ghodke. The defendants No.6
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to 9 are the children of defendant No.5 and late Devaraj
Ghodke, which means they are the grand children of
Gurappa Ghodke. Defendant No.1 is a stranger to the
family of plaintiffs and defendants 2 to 13.
5. It is stated that the plaintiffs and defendant
Nos.2 to 13 are the members of Hindu Joint family and
they are governed by Mithakshara Law. Late Gurappa
Ghodke and Malanabai are the married couples and out of
marital life, they gave birth to 10 children. Out of 10
children, son by name Devaraj died leaving behind
defendant Nos.5 to 9 as the legal representatives of
deceased Devaraj and Malanabai.
6. Gurappa Ghodke who is the common ancestral
of the plaintiffs and defendant Nos.2 to 13 died on
21.11.1992 and their mother Malanabai died on
03.07.2008. Their son by name Devaraj died subsequent
to the death of Gurappa Ghodke.
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7. It is stated that Gurappa Ghodke hailed from
agricultural family and his parents were the agriculturists.
Out of the family income, item Nos.1 and 2 properties in
suit schedule 'A' were purchased in the name of Gurappa
Ghodke. Gurappa Ghodke did not have any avocation to
purchase any property in his individual capacity. The suit
schedule 'B' property is also an ancestral property. Hence,
suit schedule 'A' and 'B' properties have become the joint
family properties. Gurappa Ghodke and his wife Malanabai
died intestate. Plaintiff Nos.1 and 2 have got 2/10th share
in all the plaint schedule properties, defendant Nos.2 to 4
have also got 1/10th share each, defendant Nos.5 to 9
together got 1/10th share, and defendant Nos.10 to 13
also got 1/10th share each in the plaint schedule
properties.
8. It is submitted that, during the life time of
Gurappa Ghodke, he has not made any arrangement or
alienation by way of partition or any other mode. It is
stated that, since 1988 till 21.11.1992 Gurappa Ghodke
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was bed ridden due to his old age and also his memory
power was diminished. Defendant No.3 was the head of
the family and he was looking after the entire family
affairs. Defendant No.3 with the help of other family
members was cultivating suit schedule 'A' - item Nos.1
and 2 properties.
9. The plaintiffs and defendant Nos.10 to 13 after
their marriage were living with their respective
matrimonial home. It is submitted that immediately after
the death of Gurappa Ghodke, plaintiffs and defendant
Nos.10 to 13 got inherited right.
10. It is the case of the plaintiffs that at no point of
time plaintiffs have not given any consent or willingness to
defendant Nos.2 to 4 and late Devaraj to enjoy or treat
the schedule properties as belonging to them only. The
plaintiffs are entitled to get their shares in the schedule
properties.
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11. It is stated that defendant Nos.2 to 4 and late
Devaraj have created one fraudulent document as sale
deed in respect of item No.1 of 'A' schedule property.
Defendant Nos.2 to 4 have no such legal right to create
sale deed in favour of defendant No.1. Defendant No.1 is
not in possession of item No.1 of 'A' schedule property.
The plaintiffs have undivided share and defendant No.1
has no right to claim possession along with the family
members. The sale deed dated 28.04.1999 executed in
favour of defendant No.1 by defendant Nos.2 to 4 and late
Devaraj is not binding on the plaintiffs. Therefore,
defendant No.1 is having limited claim of the shares of
defendant Nos.2 to 4 and late Devaraj.
12. It is stated that the plaintiffs came to know
about the fraudulent sale deed on 25.04.2014. Thereafter,
they approached defendant Nos.2 to 4 for partition, but
they have not given share.
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13. The Khata and RTCs are still standing in the
name of Malanabai and Gurappa Ghodke. All the plaintiffs
and defendant Nos.2 to 4, defendant Nos.5 to 9 and
defendant Nos.10 to 13 have shares as above stated.
14. It is stated that defendant No.1 is not the
bonafide purchaser as he had not taken consent from the
plaintiffs to purchase the plaint 'A' schedule item No.1
property. Therefore, defendant No.1 does not have any
right over plaint 'A' schedule item No.1 property.
Therefore, prayed for the relief of partition and separate
possession of the plaintiffs in plaint 'A' and 'B' schedule
properties by metes and bounds and also prayed for the
relief of declaration to declare that the alleged sale deed
dated 28.04.1999 is not binding on the plaintiffs. Further
prayed to direct defendant No.1 to execute the sale deed
in favour of plaintiffs and the same belonging to defendant
Nos.2 to 4 and late Devaraj and for mesne profit. Thus,
they filed the suit for partition and separate possession as
above stated.
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WRITTEN STATEMENT OF DEFENDANT No.1:
15. Defendant No.1 has appeared through Advocate
and filed the written statement and denied all the
averments made in the plaint except the relationship of
family of Gurappa Ghodke. It is further denied that the
plaintiffs have 1/10th share each. Defendant No.1 denied
that during the lifetime of Gurappa Ghodke, he has not
made any arrangement or alienation by way of partition or
any other mode. Further denied that, Gurappa Ghodke
was bed ridden from 1988 till 21.11.1992.
16. Defendant No.1 denied that after the death of
Gurappa Ghodke, plaintiffs and defendant Nos.10 to 13
got inherited right. Further denied that the plaintiffs and
defendant Nos.10 to 13 have not given consent for
execution of sale deed in favour of defendant No.1.
Further denied the false and fraudulent sale deed executed
by defendant Nos.2 to 4 and late Devaraj in favour of
defendant No.1.
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17. Defendant No.1 totally denied the case of the
plaintiffs and pleaded that the plaintiffs and defendant
Nos.2 to 13 are not entitled for any share as they have
consented for the sale deed executed in favour of
defendant No.1.
18. Defendant No.1 in the written statement has
stated some pleadings as true facts of the case. Gurappa
Ghodke was the propositus of the family. Item No.1 of suit
schedule 'A' property was purchased by late Gurappa
Ghodke during his lifetime. There was partition between
late Gurappa Ghodke and his sons and daughters. As per
the partition, suit schedule 'A' - item No.1 property was
allotted to the share of defendant Nos.2 to 4 and another
son late Devaraj. As per the partition, defendant Nos.2 to
4 and late Devaraj applied for mutating their names in the
revenue records in respect of suit schedule 'A' - item No.1
property. As per the partition, mutations were effected in
the name of defendant Nos.2 to 4 and late Devaraj with
regard to suit schedule 'A' - item No.1 property through
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ME.No.914. Therefore, defendant No.2 to 4 and late
Devaraj have acquired the absolute title over the suit
schedule 'A' - Item No.1 property by virtue of partition
deed. They were in joint possession and wahiwat of the
suit schedule 'A' - Item No.1 property. ME.No.914 was not
challenged by the plaintiffs.
19. The legal representatives of late Gurappa
Ghodke have consented for the partition and partition was
acted upon. The partition deed is binding on the plaintiffs.
Unless and until the partition deed is challenged by the
plaintiffs, they have no locus standi to file another
partition suit.
20. It is stated that defendant No.1 after verifying
all documents and after getting confirmation that
defendant Nos.2 to 4 and late Devaraj are owners and
they are in actual possession of suit schedule 'A' - Item
No.1 property and defendant Nos.2 to 4 and late Devaraj
having obtained permission to sell the suit schedule 'A' -
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Item No.1 property, defendant No.1 purchased the suit
schedule 'A' - Item No.1 property from defendant Nos.2 to
4 and late Devaraj for valuable consideration by registered
sale deed dated 28.04.1999. Thereafter, the name of
defendant No.1 was mutated in the revenue records.
Therefore, the sale deed executed by defendant Nos.2 to 4
and late Devaraj is legal and valid for all legal intents and
purposes. The plaintiffs have not challenged the mutation
entries and partition deed. Unless and until the previous
partition is challenged and it is not cancelled, the plaintiffs
do not have any locus standi to file the suit. The plaintiffs
have filed the suit in collusion with defendant Nos.2 to 13
for making illegal demands, since value of the suit land
has increased in recent years.
21. It is stated that defendant No.1 is the bonafide
purchaser of suit schedule 'A' - Item No.1 property for
valuable consideration. However, making disclaimer that,
if the plaintiffs have any share in the suit schedule 'A' -
Item No.1 property by adjusting equities, this defendant is
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entitled for share in suit schedule 'A' - Item No.1 property
in the partition, if any among plaintiffs and defendant
Nos.2 to 4. Therefore, pleaded that defendant No.1 is
ready to pay the Court fee, if any payable to that effect as
ordered by the Court.
22. The plaintiffs have not challenged the sale deed
of defendant No.1 and thus, it is binding on the plaintiffs
and defendant Nos.5 to 14. Defendant No.1 after
purchasing suit schedule 'A' - item No.1 property has
developed the land by investing huge amount by raising
loan from the bank. Therefore, the plaintiffs in collusion
with defendant Nos.2 to 13 have filed the suit just to
swallow up the suit schedule 'A' - item No.1 property.
23. Defendant No.1 is not concerned with any other
properties except suit schedule 'A' - Item No.1 property.
Therefore, prayed to dismiss the suit.
WRITTEN STATEMENT OF DEFENDANT NO. 3:
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24. Defendant No.3 has filed the written statement
denying all the averments made in the plaint except the
relationship pleaded in the plaint. It is submitted that suit
schedule 'A' and 'B' properties are joint family properties.
Defendant No.3 pleaded that Gurappa Ghodke and his wife
Malanabai died intestate leaving behind plaintiffs and
defendant Nos.2 to 13 as their class one heirs. It is stated
that plaintiff Nos.1 and 2 have got 2/10th share in all the
plaint schedule properties. Defendant Nos.2 to 4 have also
got 1/10th share in the plaint schedule properties.
Defendant Nos.5 to 9 together are entitled for 1/10th share
being legal heirs of late Devaraj. Defendant Nos.10 to 13
also got 1/10th share each in the plaint schedule
properties. From 1988 till 21.11.1992 Gurappa Ghodke
was bed ridden due to his advanced age and his memory
power was diminished, therefore, he was never used to go
outside since 1980. Defendant No.3 denied that he was
the head of the family and looking after the entire family
affairs.
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25. It is submitted that the plaintiffs and defendant
Nos.10 to 13 after their marriage are leaving with their
respective matrimonial home.
26. The total pleadings of defendant No.3 made in
length is almost supporting the case of the plaintiffs. At
one stretch, defendant No.3 is denying the case of the
plaintiffs, but at another stretch, admitting the case of the
plaintiffs by stating that the plaintiffs have also share in
the suit schedule properties. It is denied that the plaintiffs
and defendant Nos.2 to 13 have equal share.
27. Defendant No.3 made further averments as true
facts of the case that the plaintiffs and defendant Nos.2 to
13 have inherited item No.1 of 'A' schedule property and
Defendant No.3 being the joint family member was taking
care of his father and mother. Till the last breath of
Gurappa Ghodke, defendant No.3 was taking care of his
father. During the life time of Gurappa Ghodke, family
partition was taken place, in which, item No.1 of 'A'
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schedule property was fallen into the share of defendant
No.3 and his three brothers to the extent of 23 acres 26
guntas. Therefore, in the presence of elders, the partition
deed was effected and the same was given to the
Thasildar, Hubbali, to mutate their names as per the
family partition and accordingly, their names were
mutated. To meet out the family necessities and to pay
the loan availed by late Gurappa Ghodke, defendant Nos.2
to 4 and late Devaraj had sold the properties to defendant
No.1 for its market value. It is stated that defendant No.1
is the bonafide purchaser of item No.1 of 'A' schedule
property. Defendant Nos.2 to 4 and late Devaraj have
taken the oral consent of the plaintiffs to sell the said
property in favour of defendant No.1. Accordingly, the sale
deed dated 28.04.1999 was executed.
28. After the death of Gurappa Ghodke, his wife
Malanabai inherited item No.2 of 'A' schedule property.
During her lifetime, she has bequeathed her rights to
defendant Nos.3 and 4 by way of registered Will dated
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02.07.2003. After the death of Malanabai, defendant Nos.3
and 4 have become the absolute owners of item No.2 of
'A' schedule properties and this is within the knowledge of
plaintiffs. Further stated that the plaintiffs do not have any
right over the suit schedule properties as they have
relinquished their shares and the plaintiffs have executed
the relinquishment deed dated 21.04.2008, therefore, in
the suit schedule 'B' property, the plaintiffs and
defendants except defendant Nos.3 and 4 have got no
share.
29. The transactions of sale deed, gift deed and
relinquishment deed were conveyed with the consent of
plaintiffs and they are the sisters of defendant No.3, but
the plaintiffs have been mutated maliciously and hence,
filed false and frivolous suit. Thus, prays to dismiss the
suit.
30. Defendant Nos.11 and 12 have filed their
separate written statement by admitting the relationship
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between the plaintiffs and defendant Nos.2 to 13 and
constitute Hindu joint family and the suit schedule
properties are joint family properties. Both these
defendant Nos.11 and 12 have filed their written
statement to the effect that they are also having share in
the suit schedule properties. Therefore, prayed for share in
the suit schedule properties. It is also stated that
defendant No.1 is not the bonafide purchaser of suit
schedule 'A' - item No.1 property. Hence, prays for
partition in the suit schedule properties.
31. Defendant No.11 filed the counter claim in the
written statement and prays for partition by claiming
1/10th share in the counter claim properties. Therefore,
the net effect of filing written statement by defendant
Nos.11 and 12 is that for claiming shares of 1/10th each in
suit schedule 'A' and 'B' properties.
32. Upon the pleadings, the trial Court has framed
the following issues:
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"(1) Whether the plaintiffs prove that they and
the defendants are the members of Hindu
undivided joint family and further prove
that the suit properties are their joint
family properties?
(2) Whether the plaintiffs prove that the sale
deed dt.28/4/1999 bearing SR
No.385/1999-2000 is not binding on their
share?
(3) Whether the defendant No.11 proves that
he is entitled for 1/10th share as prayed in
the counter claim?
(4) Whether the defendant No.11 is entitle for
mesne profits as prayed in the counter
claim?
(5) Whether the plaintiffs are entitle for
mesne profits?
(6) Whether the plaintiffs are entitle for the
suit claim?
(7) What order or decree?
ADDITIONAL ISSUES:
(1) Whether the defendant No.3 proves that
he became the absolute owner of item
No.2 of Plaint-A schedule property by
virtue of the registered WILL dt.2-7-2003
executed by mother of plaintiff by name
Malanbai W/o Gurappa Ghodke and
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further proves that the plaintiffs have no
manner of right or share in that property?
(2) Whether the defendant No.3 proves that
he became the absolute owner of plaint-B
schedule property by virtue of 'Hakku Bitta
Patravu' dt.21-4-2008 executed by the
plaintiffs and other defendants and further
proves that the plaintiffs have no right or
share over that property?
(3) Whether the defendant No.1 proves that
he is a bonafide purchaser of item No.1 of
plaint 'A' schedule property?"
33. Plaintiff No.1 is examined as P.W.1 and got
marked the documents as Ex.P.1 to Ex.P.16. Defendant
No.1 is examined as D.W.1 and three witnesses are
examined as D.W.2 to 4 and got marked the documentary
evidence as Ex.D.1 to Ex.D.34 and Ex.D.34(a).
REASONING S OF TRAIL COURT:
34. The trial Court has decreed the suit in part and
granted shares in plaint 'A' schedule property and counter
claim 'B' schedule properties dividing into five shares
among the original proprietors and his four sons and all of
them are entitled to 1/5th share each. Further 1/5th share
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which is allotted to the original propositors have to be
divided among plaintiff Nos.1 and 2, defendant Nos.2 to 4,
husband of defendant No.5 and defendant Nos.10 to 13
and all of them are entitled for 1/10th share each.
Defendant Nos.5 to 9 being the legal heirs of late Devaraj
are together entitled for share which is fallen to the share
of deceased Devaraj. Further declared that the sale deed
dated 28.04.1999 is not binding on the share of the
plaintiffs, but it is binding on defendant Nos.2 to 9 and
further ordered for mesne profit.
35. The trial Court assigned the reasons while
answering issue No.1 that the plaintiffs have proved that
they and defendant Nos.2 to 13 are the members of Hindu
undivided joint family and suit properties are joint family
properties. Further held that the sale deed dated
28.04.1999 is not binding on the plaintiffs' share. Further
held that defendant No.11 is entitled for 1/10th share as
filed in the counter claim and also it is held that defendant
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No.11 and plaintiffs are entitled for mesne profit as filed in
the counter claim.
36. Further defendant No.3 has failed to prove that
he became the absolute owner of item No.2 of plaint 'A'
schedule property by virtue of registered sale deed dated
02.07.2003. Further defendant No.3 failed to prove that
he became the absolute owner of plaint 'B' schedule
property by virtue of Hakku Bitta Patravu dated
21.04.2008. Further held that defendant No.1 is the
bonafide purchaser in respect of shares of the sons of
original propositors, but that sale deed is not binding on
the shares of plaintiffs.
37. The trial Court upon considering the evidence
on record assigned the reasons that defendant Nos.2 to 13
are the members of Hindu joint family by rejecting the
contention of defendant No.3 that there was earlier
partition. The trial Court held that the prior partition is not
proved. Therefore, the plaintiffs and defendant Nos.2 to 13
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are entitled for share. The trial Court held that Ex.D.16-
mutation entry extract is not legal one and as such, the
mutation is not sufficient to prove the partition. The trial
Court assigned the reason that though, defendant No.1 is
proved to be the bonafide purchaser of suit schedule 'A' -
item No.1 property, but the plaintiffs and defendant
Nos.10 to 13 are daughters and hence, they are
coparceners and they are entitled for share in suit
schedule 'A' - item No.1 property. Therefore, it is held that
the sale deed dated 28.04.1999 is only binding on
defendant Nos.2 to 9. The trial Court assigned the reason
that defendant No.1 examined as D.W.1 in his cross-
examination has admitted that suit schedule 'A' - item
No.1 property is an ancestral property. Therefore, as per
his admission itself, plaintiffs No.1 and 2 and defendant
Nos.10 to 13 being daughters of propositus Gurappa
Ghodke have vested with right in suit schedule 'A' - item
No.1 property. Thus, granted share in the said property.
Therefore, the trial Court has decreed the suit by granting
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share to the plaintiffs and defendant Nos.2 to 13 including
suit schedule 'A' - item No.1 property. Also declared that
the sale deed dated 28.04.1999 is not binding on the
share of the plaintiffs, but it is binding on defendant Nos.2
to 9 and granted mesne profit.
38. Further assigned reasons that the suit schedule
'A' - item No.1 property was sold on 28.04.1999, which is
after coming into force of amendment to Section 6 of
Hindu Succession Act by Karnataka Amendment Act.
Section 6 recognizes that the daughters are also
coparceners. Therefore, the sale transaction dated
28.04.1999 is hit by Karnataka Amendment Act to Section
6 of the Hindu Succession Act. This Karnataka Amendment
Act inserted Sections 6(a), 6(b) and 6(c) by the Karnataka
Act 23 of 1994 w.e.f. 30.07.1994. Therefore, the plaintiffs
and defendant Nos.10 to 13 are also entitled for share in
suit schedule 'A' - item No.1 property. Thus, the trial Court
is correct in holding that the sale transaction in respect of
suit schedule 'A' - item No.1 property dated 28.04.1999 is
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not binding on the plaintiffs and defendant Nos.10 to 13.
Therefore, decreed the suit.
39. Further the trial Court by following the
judgment of the Hon'ble Supreme Court in the case of
PRAKASH AND OTHERS v/s THIMMAMMA AND
OTHERS1 adopted the theory of notional partition has
divided the property by 1/5th share to Gurappa Ghodke
and defendant Nos.2 to 4 and late Devaraj (father and
sons) and the share of Gurappa Ghodke was further
divided into 10 equal shares. Accordingly, granted the
shares.
40. Being aggrieved by the judgment and decree
insofar as partitioning suit schedule 'A' - item No.1
property, defendant No.1 has preferred the present
appeal. The respondents have appeared through their
Advocates. Cross objection is filed by plaintiffs and
2015 (2) KCCR 1334
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defendant Nos.10 to 13 praying for equal shares as that of
sons.
41. Heard the argument from both sides and
perused the records.
42. The points that arise for consideration are as
follows:
(i) Whether, under the facts and
circumstances involved in the case,
the plaintiffs prove that the suit
schedule 'A' and 'B' properties are
joint family properties including suit
schedule 'A' - Item No.1 property?
(ii) Whether, under the facts and
circumstances involved in the case,
the plaintiffs are entitled for share in
the suit schedule 'A' - Item No.1
property?
(iii) Whether, under the facts and
circumstances involved in the case,
defendant No.1 proved to be the
bonafide purchaser of suit schedule 'A'
- item No.1 property?
(iv) Whether, under the facts and
circumstances involved in the case,
the judgment and decree passed by
the trial Court requires interference by
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this Court insofar as suit schedule 'A' -
item No.1 property?
43. All the points are interlinked with each other,
hence, they are taken up for common consideration.
SUBMISSION OF COUNSEL FOR DEFENDANT
NO.1/APPELLANT:
44. Learned counsel for the appellant/defendant
No.1 vehemently submitted that the suit filed by the
plaintiffs is in collusion with defendant Nos.2 to 13. The
appellant/defendant No.1 is only concerned to suit
schedule 'A' - item No.1 property. Defendant No.1 is the
bonafide purchase of suit schedule 'A' - item No.1
property. It is submitted that the plaintiffs do not have any
knowledge regarding the case and the suit is filed by the
plaintiffs at the behest of defendants Nos.2 to 13 just to
deprive the ownership of defendant No.1 over the suit
schedule 'A' - item No.1 property. There was partition
earlier between the father and defendant Nos.2 to 4 and
late Devaraj and suit schedule 'A' - item No.1 property
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was fallen to the share of defendant Nos.2 to 4 and late
Devaraj and subsequently on 28.04.1999 this property
was transferred to defendant No.1. Therefore, defendant
No.1 is the bonafide purchaser, but the plaintiffs and
defendant Nos.2 to 13 have hatched a plan to engulf the
suit schedule 'A' - item No.1 property and thus, filed a
false and frivolous suit for partition and in this way, other
inclusion of property are just to make an eye wash just to
make convenient in filing the suit for partition. Therefore,
the entire suit is revolving around suit schedule 'A' - item
No.1 property. Therefore, submitted that the suit filed is a
well designed plan just to deprive the ownership of
defendant No.1 over this property. The very admissions of
P.W.1 in the cross-examination and documentary evidence
placed proved the fact that how the suit is well designed
and the plaintiffs did not have knowledge regarding filing
of the suit, hence they have become puppet at the hands
of defendant Nos.2 to 13. Therefore, decreeing the suit
including suit schedule 'A' - item No.1 property is not
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correct. Therefore, submitted that the judgment and
decree passed by the trial Court insofar as partitioning suit
schedule 'A' - item No.1 property is not correct. Defendant
No.1 has no objection for partitioning other properties.
Therefore, prays to allow the appeal.
SUBMISSION OF COUNSEL FOR PLAINTIFF 1 AND 2
AND CROSS OBJECTOR:
45. On the other hand, learned counsel appearing
for the respondents who are plaintiff Nos.1 and 2 and
defendant Nos.2 to 13 submitted that there was no earlier
partition and even though whatever partition might be
between Gurappa Ghodke and defendant Nos.2 to 4 and
late Devaraj, for this, there was no consent by the
plaintiffs and defendant Nos.10 to 13. Therefore, whatever
sale made by defendant Nos.2 to 4 and late Devaraj in
respect of suit schedule 'A' - item No.1 property is binding
on them, but not binding on the plaintiffs and defendant
Nos.10 to 13. Thus, it is correctly held by the trial Court
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and hence, decreeing the suit is proper. Therefore, prays
to dismiss the appeal.
46. Further submitted that the suit schedule 'A' -
item No.1 property was sold on 28.04.1999, which is after
coming into force of amendment to Section 6 of Hindu
Succession Act by Karnataka Amendment Act. Section 6
recognizes that the daughters are also coparceners.
Therefore, the sale transaction dated 28.04.1999 is hit by
Karnataka Amendment Act to Section 6 of the Hindu
Succession Act. This Karnataka Amendment Act inserted
Sections 6(a), 6(b) and 6(c) by the Karnataka Act 23 of
1994 w.e.f. 30.07.1994. Therefore, the plaintiffs and
defendant Nos.10 to 13 are also entitled for share in suit
schedule 'A' - item No.1 property. Thus, the trial Court is
correct in holding that the sale transaction in respect of
suit schedule 'A' - item No.1 property dated 28.04.1999 is
not binding on the plaintiffs and defendant Nos.10 to 13.
Therefore, prays to dismiss the appeal.
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47. Learned counsel for the cross-objectors/plaintiff
Nos.1 and 2 and defendant Nos.10 to 13 submits that
adopting the theory of notional partition is not correct as
these cross-objectors are also entitled for equal share in
all the properties as per the judgment of the Hon'ble
Supreme Court in the case of Vineeta Sharma Vs.
Rakesh Sharma and Others2. Therefore, prays for grant
of 1/10th share each to all the plaintiffs and defendant
Nos.2 to 4, defendant Nos.5 to 9 and defendant Nos.10 to
13 respectively. To this effect, the cross objection is filed.
Therefore, learned counsel for the cross-objectors by
placing reliance on the judgment of the Hon'ble Supreme
Court in the case of Vineeta Sharma (stated supra) prays
for grant of equal share to the plaintiffs and other
daughters as that of sons as per Section 6 of the Hindu
Succession Act (Karnataka Amendment Act 23 of 1994).
MANU/SC/0582/2020
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REASONS:
48. The plaintiffs have filed the suit for partition of
suit schedule 'A' and 'B' properties by metes and bounds
and mesne profit and also prays for declaration that the
sale deed dated 28.04.1999 in respect of suit schedule 'A'
- item No.1 property sold to defendant No.1 is not binding
on the plaintiffs and defendant Nos.10 to 13. At this stage,
the argument canvassed by the learned counsel for the
appellant/defendant No.1 is to be taken into consideration.
Though, the plaintiffs have filed the suit for partition by
claiming share in plaint 'A' and 'B' schedule properties, but
as per the submission of counsel for the
appellant/defendant No.1, eye of the plaintiffs and
defendant Nos.2 to 13 are on the suit schedule 'A' - Item
No.1 property. The other properties are only for formalities
to make convenient to file the suit for partition. Though,
the suit schedule 'A' and 'B' properties are ancestral
properties, but it is the claim of defendant No.1 that he is
the bonafide purchase of suit schedule 'A' - Item No.1
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property through valid registered sale deed dated
28.04.1999. It is the argument canvassed by the learned
counsel for the appellant/defendant No.1 that the suit filed
is one collusive in nature between the plaintiffs and
defendant Nos.2 to 13 just to deprive the legitimate
ownership of defendant No.1 over the suit schedule 'A' -
Item No.1 property.
49. This appeal is only confined to suit schedule 'A'
- Item No.1 property. Learned counsel for the
appellant/defendant No.1 submitted that defendant No.1 is
not at all concerned with other properties of schedule 'A'
and 'B' properties except suit schedule 'A' - Item No.1
property. Ex.D.16 is the mutation entry extract, by which,
on 19.11.1990 Gurappa Ghodke and defendant Nos.2 to 4
and late Devaraj had partitioned themselves. As per
Ex.D.16- mutation entry extract, Gurappa Ghodke has
been allotted share in the lands in Survey No.99
measuring 9 acres 25 guntas, which is item No.2 property.
Defendant Nos.2 to 4 and late Devaraj have obtained
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share in the land in Survey No.97 to the extent of 5 acres
36 guntas, 5 acres 36 guntas, 5 acres 36 guntas and 5
acres 38 guntas respectively between defendant Nos.2 to
4 and late Devaraj, totally 23 acres 26 guntas, which is
suit schedule 'A' - item No.1 property. Defendant No.1
does not have any objection regarding the plaintiffs and
defendant Nos.2 to 13 are the members of Hindu
undivided joint family and also suit schedule 'A' and 'B'
properties except schedule 'A' - item No.1 property.
Though, as per Ex.D.16-mutation entry extract the
daughters have not been given shares and as per this
partition, it is only between Gurappa Ghodke and sons -
defendant Nos.2 to 4 and late Devaraj. The said oral
partition is reflected in the mutation extract i.e.,
ME.No.914. Defendant No.1 has purchased the suit
schedule 'A' - Item No.1 property through the registered
sale deed dated 28.04.1999 as per Ex.D.1 from defendant
Nos.2 to 4 and late Devaraj. Ex.D.18 is the memorandum
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of partition, but the trial Court has disbelieved the same
by misconstruing itself that it is the partition deed.
50. The trial Court has wrongly observed that the
partition deed was not produced and only Ex.D.18 is the
memorandum of partition, but it does not prove that there
was earlier partition. There is difference between partition
deed and memorandum of partition. As per Ex.D.16 and
Ex.D.18 what is proved is that there was partition among
Gurappa Ghodke, defendant Nos.2 to 4 and late Devaraj
and later it was reduced into writing on 12.11.1990 as per
Ex.D.18. As per this Ex.D.18- memorandum of partition,
Gurappa Ghodke has obtained share in item No.2 of suit
schedule 'A' property and defendant Nos.2 to 4 and late
Devaraj collectively have taken the share in item No.1 of
'A' schedule property.
51. The trial Court here in this regard has found
fault by misconstruing itself that the partition deed was
not produced before the Court. As per Ex.D.16 and
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Ex.D.18 what is proved the fact is that there was oral
partition between Gurappa Ghodke and his sons-defendant
Nos.2 to 4 and late Devaraj and that is reduced into
writing on 12.11.1990 by giving report to the Village
Accountant, Parasapur Village, Hubballi Taluk. Accordingly,
it was mutated as Mutation Entry No.914 dated
19.11.1990. Therefore, there was partition during the
lifetime of Gurappa Ghodke. Gurappa Ghodke died on
21.11.1992 and his wife Malanabai died on 03.07.2008.
Therefore, during the lifetime of Gurappa Ghodke and
Malanabai, there was partition in the family. Here the only
dispute in the suit and in the appeal is with regard to suit
schedule 'A' - Item No.1 property. The entire suit and
appeal is confined only to suit schedule 'A' - Item No.1
property. This suit schedule 'A' - Item No.1 property was
fallen to the share of defendant Nos.2 to 4 and late
Devaraj as per Ex.D.16 and Ex.D.18. Therefore, this
partition was effected much prior to coming into force of
Amendment to the Hindu Succession Act by Karnataka
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Amendment Act 23 of 1994 w.e.f. 30.07.1994. At that
time, the daughters were not recognized as coparceners.
52. Learned counsel for the cross-objectors in
RFA.Crob.No.100009/2024 submitted that the plaintiffs
and defendant Nos.10 to 13 are claiming their right as per
Section 8 of the Hindu Succession Act, but not as per
Section 6 of the Hindu Succession Act. It is the argument
by the learned counsel for the cross objectors that
Gurappa Ghodke died intestate, therefore, the properties
devolve according to Section 8 of the Hindu Succession
Act, but not as per Section 6 of the Hindu Succession Act.
Though, Gurappa Ghodke died intestate, but during his
lifetime there was partition among Gurappa Ghodke and
sons defendant Nos.2 to 4 and late Devaraj in respect of
item Nos.1 and 2 of suit schedule 'A' property. Defendant
No.1 is the purchaser of suit schedule 'A' - item No.1
property and he is not concerned with other properties in
the plaint schedule. The trial Court held that defendant
No.1 is the bonafide purchaser of suit schedule 'A' - item
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No.1 property and it is binding only on defendant Nos.2 to
9, but not binding on the plaintiffs and defendant Nos.10
to 13. This observation of the trial Court is not correct. On
12.11.1990 as per the report given before the Revenue
Authorities, there was already partition in the family of
item Nos.1 and 2 properties of plaint schedule 'A'
property. Therefore, Section 8 of the Hindu Succession Act
is not applicable in the present case. If there is no
partition and the propositors died intestate, then Section 8
of the Hindu Succession Act would have been applicable,
but here there was already partition on 12.11.1990 much
before amendment to the Hindu Succession Act both by
Karnataka and Central Amendment. This partition is acted
upon and mutation is effected as per Ex.D.16-Mutation
Entry No.914. Accordingly, the record of rights has been
changed as per Ex.D.3. Therefore, after effect of partition
on 12.11.1990, the names of defendant Nos.2 to 4 and
late Devaraj were mutated in the revenue records.
Thereafter, on 28.04.1999 defendant No.1 has purchased
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suit schedule 'A' - item No.1 property from them through
the registered sale deed as per Ex.D.1. It is also pertinent
to mention here that Ex.D.14 and Ex.D.15 are the
permission obtained by the competent authorities for
selling suit schedule 'A' - item No.1 property. Ex.D.14 and
Ex.D.15 are the orders dated 27.02.1999 by mentioning
defendant Nos.2 to 4 and late Devaraj are the owners of
property and accordingly, permission is given to them to
sell the land. Therefore, the partition effected as per
Ex.D.16 and Ex.D.18 was acted upon and mutations were
effected and later on, defendant No.1 has purchased suit
schedule 'A' - item No.1 property.
53. Therefore, in this regard, the trial Court has
committed error though held that defendant No.1 is
proved to be the bonafide purchaser of suit schedule 'A' -
item No.1 property, but not binding on the plaintiffs and
defendant Nos.10 to 13. This partition effected on
12.11.1990 as above discussed is acted upon and is saved
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by Proviso to Section 6 of the Hindu Succession Act
(Central Amendment Act, Act 39 of 2005 w.e.f. 9.9.2005).
54. Proviso to Section 6 reads as follows:
"6. Devolution of interest in
coparcenary property- (1) xxx
(a) x x x
(b) xxx
(c) xxx
Provided that nothing contained in this
sub-section shall affect or invalidate any
disposition or alienation including any partition
or testamentary disposition of property which
had taken place before the 20th day of
December, 2004."
55. Learned counsel for the cross objectors has
placed reliance on the judgment of the Hon'ble Supreme
Court in the case of Vineeta Sharma (stated supra),
wherein the applicability of Proviso to Section 6 of the
Hindu Succession Act is only when the partition is
registered partition by placing reliance on explanation to
Sub-section 5 of Section 6 of Hindu Succession Act.
Therefore, it is argued by the learned counsel for the cross
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objectors that, in this case, the partition as per Ex.D.16
and Ex.D.18 effected on 12.11.1990 is not a registered
partition, therefore, as per explanation to Sub-section 5 of
Section 6 of the Hindu Succession Act, the partition in this
case could not be recognized as a partition effected in the
family. Thus, argued Proviso to Section 6 of the Hindu
Succession Act is not applicable. The Hon'ble Supreme
Court in the case of Vineeta Sharma (stated supra) after
comprehensive discussion on this proviso at paragraph
No.129 held as under:
"129. Resultantly, we answer the reference as
under:
(i) The provisions contained in substituted
Section 6 of the Hindu Succession Act, 1956
confer status of coparcener on the daughter
born before or after amendment in the same
manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter
born earlier with effect from 9.9.2005 with
savings as provided in Section 6(1) as to the
disposition or alienation, partition or
testamentary disposition which had taken
place before 20TH day of December, 2004.
(iii) Since the right in coparcenary is by birth,
it is not necessary that father coparcener
should be living as on 9.9.2005.
(iv) The statutory fiction of partition
created by proviso to Section 6 of the
Hindu Succession Act, 1956 as originally
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enacted did not bring about the actual
partition or disruption of coparcenary. The
fiction was only for the purpose of
ascertaining share of deceased coparcener
when he was survived by a female heir of
Class-I as specified in the Schedule to the
Act of 1956 or male relative of such
female. The provisions of the substituted
Section 6 are required to be given full
effect. Notwithstanding that a preliminary
decree has been passed the daughters are
to be given share in coparcenary equal to
that of a son in pending proceedings for
final decree or in an appeal.
(v) In view of the rigor of provisions of
Explanation to Section 6(5) of the Act of
1956, a plea of oral partition cannot be
accepted as the statutory recognised
mode of partition effected by a deed of
partition duly registered under the
provisions of the Registration Act, 1908 or
effected by a decree of a court. However,
in exceptional cases where plea of oral
partition is supported by public documents
and partition is finally evinced in the same
manner as if it had been affected by a
decree of a court, it may be accepted. A
plea of partition based on oral evidence
alone cannot be accepted and to be
rejected outrightly."
(Emphasis supplied)
56. Therefore, as per Clause 5 in paragraph No.129
in Vineeta Sharma's case (stated supra) in exceptional
cases where plea of oral partition is supported by public
documents and partition is finally evinced in the same
manner as if it had been affected by a decree of a court, it
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may be accepted. A plea of partition based on oral
evidence alone cannot be accepted. In the present case
also, Ex.D.18 proves that there was oral partition and it
was reduced into writing which could be recognised as
memorandum of partition by giving report/vardi to the
revenue authorities as per Ex.D.18 and accordingly, it was
entered into revenue records in ME.No.914 as per
Ex.D.16. This Ex.D.16 is the public document. Therefore,
as per the principle of law laid down by the Hon'ble
Supreme Court in the case of Vineeta Sharma (stated
supra), the partition effected as per report/vardi dated
12.11.1990 Ex.D.18, the partition is accepted and it is
recognized. Therefore, defendant No.1 has conclusively
proved to be the bonafide purchaser of suit schedule 'A' -
Item No.1 property, in which, the plaintiffs and defendant
Nos.10 to 13 do not have any right over this suit schedule
'A' - Item No.1 property.
57. Insofar as other schedule properties are
concerned, there is no dispute that suit schedule 'A' -
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Item No.2 property and schedule 'B' properties are
ancestral properties. The trial Court is correct in holding
that these properties are ancestral properties, but for the
reason discussed above, suit schedule 'A' - Item No.1
property do not remain as a joint family property as it was
severed by the partition effected on 12.11.1990.
58. Further considering the manner, in which, the
suit is filed, it is worth to discuss the evidence of plaintiff
No.1/ PW.1 given in the cross-examination. Considering
the submission made by the learned counsel for the
appellant/defendant No.1 with reference to admissions
given by PW.1 in the cross-examination ought to be
considered here. It is the argument of learned counsel for
the appellant/defendant No.1 that the suit filed by the
plaintiffs is in collusion with defendant Nos.2 to 13 just to
cause deprivation of ownership of defendant
No.1/appellant over the suit schedule 'A' - Item No.1
property as the plaintiffs at the behest of defendant Nos.2
to 13 have filed the present false and frivolous suit. In this
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regard, the admission given by PW.1 is considered. PW.1
in the cross-examination admitted that the suit schedule
'A' property was standing in the name of her brothers from
the year 1990. Further PW.1 admitted that defendant
Nos.2 to 4 have sold the suit schedule 'A' - Item No.1
property to defendant No.1 for the purpose of clearance of
loan raised by her father and to meet medical expenditure
of her mother.
59. In this regard, when PW.1 admitted that from
the year 1990 her brothers' name were standing in the
revenue records in respect of suit schedule 'A' - Item No.1
property and in the year 1999, she knew the fact that suit
schedule 'A' - Item No.1 property was sold to defendant
No.1 by defendant Nos.2 to 4 and late Devaraj, but that is
not questioned. Though, PW.1 had stated that she did not
know the sale deed executed in the year 1999, but had
admitted that in the year 2008, she knew that such sale
deed was executed by defendant Nos.2 to 4 and late
Devaraj in favour of defendant No.1, but the suit is filed in
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the year 2014. This evidence proves the fact that the suit
filed by the plaintiffs is well designed plan at the behest of
defendant Nos.2 to 13.
60. Further in the cross-examination, plaintiff
No.1/P.W.1 admitted she does not know that defendant
Nos.2 to 4 and late Devaraj have executed the registered
sale deed in favour of defendant No.1 with the consent of
plaintiffs. Therefore, the plaintiffs have not questioned
their brothers, for which, the answer given is she did not
know the said fact. The manner, in which, the answer
given by PW.1 proves the fact that the plaintiffs knew
regarding the partition effected in the year 1990 and
subsequent sale deed dated 28.04.1999 which was
consented by the plaintiffs, though there was no written
consent. Further admitted that the suit schedule 'A'- item
No.2 property was standing in the name of her mother
malanabai. Further admitted that as per the partition
effected in the year 1990, the suit schedule 'A' - item No.2
property was fallen to her mother. Therefore, these
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admissions prove that the plaintiffs knew the partition
effected in the year 1990. Further plaintiff No.1/PW.1
admitted that her mother Malanabai had executed Will
bequeathing plaint schedule 'A' - item No.2 property to
defendant Nos.3 and 4. Therefore, all the admissions go to
prove that there was partition effected in the family in the
year 1990 and the plaintiffs knew this fact.
61. Further it is interesting to discuss the
admissions given by PW.1 in the course of cross-
examination that it is proved that the suit is filed in
collusion with defendant Nos.2 to 13. PW.1 admitted in the
cross-examination that her brothers have given
information and particulars to file the suit. PW.1 admitted
that defendant No.4 specifically has given necessary
information and particulars to file the suit. Further P.W.1
made ignorance about the properties involved in the suit,
but stated that her brothers knew for which property the
suit is filed.
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62. Further it is admitted that all the plaintiffs and
defendant Nos.2 to 4 together have filed the suit,
therefore, these admissions of PW.1 in the course of
cross-examination recorded on 17.09.2016 clearly and
conclusively prove the fact that the suit filed by the
plaintiffs is in collusion with defendant Nos.2 to 13. PW.1
admitted that she does not know the extent and
boundaries of the suit properties and also on which
document the names were mutated. Further the plaintiffs'
grandfather Basappa had three sons and five daughters
and they have legal heirs, but they were not made as
parties. Further PW.1 admitted in the cross-examination
that how her father got properties and what are the
properties, all information are known by her brothers-
defendant Nos.2 to 4.
63. Further when plaintiff No.1/P.W.1 has pleaded
in the plaint that from the year 1980 to 1992, her father
was not in a position to go outside the house and his
memory power was diminished, but for which, there was
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no record produced by the plaintiffs and also by defendant
Nos.2 to 13. Further admitted that her father Gurappa
Ghodke was in a fit state of health condition, therefore,
there was no occasion for giving medical treatment to him.
Further it is revealed in the evidence that the plaintiffs
have not included the property in Survey No.96 of
Parasapur Village to the extent of 25 acres, which is sold
to one Parashuram. Therefore, the suit is bad for non-
inclusion of other joint family and ancestral properties
also. Therefore, it is proved that for claiming share in suit
schedule 'A' - item No.1 property, the suit is filed just to
cause deprivation of ownership of defendant No.1 over the
suit schedule 'A' - item No.1 property.
64. Further PW.1 has conveniently answered to the
question that she does not know that her brothers have
showed the suit schedule 'A' - item No.1 property to
defendant No.1 and defendant No.1 after verifying all the
documents and after taking consent from the plaintiffs had
purchased the property. The answer by PW.1 is that she
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does not know. Further PW.1 has answered that she does
not know that defendant No.1 is the bonafide purchaser
and after getting his name mutated in the records and
defendant No.1 is in possession and made huge
expenditure towards development of land. PW.1 admitted
that since defendant No.1 being the lawful owner over the
suit schedule 'A' - item No.1 property, therefore, she has
not made objection for entering the name of defendant
No.1.
65. Further PW.1 admitted in the cross-examination
that the plaintiffs have not challenged the partition of the
year 1990 till filing of the suit in the year 2014. Further
admitted that, in the suit also, the partition of the year
1990 was not challenged. Further defendant No.1 has
made huge expenditure and developed the land by digging
bore well and defendant No.1 is in possession over the suit
schedule 'A' - item No.1 property. Further PW.1 has given
in marriage to a well family, therefore, there is no
occasion for claiming share in the suit schedule properties.
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66. Therefore, upon considering all these evidence,
it is proved that the plaintiffs and defendant Nos.2 to 13 in
collusion with each other have filed the suit for partition
with an eye to swallow up the suit schedule 'A' - item No.1
property and for which, other properties are formally
claimed in the partition. But the main purpose of filing the
suit is to engulf the suit schedule 'A' - item No.1 property.
Further PW.1 admitted that the plaintiffs are only having
interest to claim suit schedule 'A' - item No.1 property, but
not suit schedule 'A' - item No.2 property. Therefore,
considering the evidence of PW.1, only with an intention
and ill-motive to cause deprivation of ownership of
defendant No.1 over the suit schedule 'A' - item No.1
property, the present suit is filed. Therefore, the suit filed
by the plaintiffs is proved to be ill-motivated.
67. Therefore, upon considering the case and
appreciation of evidence on record as discussed above, it
is proved that the plaintiffs and defendant Nos.2 to 13 are
the members of Hindu undivided joint family and the suit
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schedule 'A' and 'B' properties are ancestral properties,
but there was partition in the year 1990 insofar as suit
schedule 'A' - item Nos.1 and 2 properties and defendant
No.1 is the bonafide purchaser of suit schedule 'A' - item
No.1 property from defendant Nos.2 to 4 and late Devaraj.
Therefore, point No.1 is answered in partly affirmative,
point No.2 in the negative and point Nos.3 and 4 in
affirmative. Therefore, the appeals are liable to be
allowed in part.
68. The trial Court has not considered Section 6 of
the Hindu Succession Act recognizing the daughters as
coparceners are entitled for equal share as that of sons.
Therefore, adoption of theory of notional partition as it
was before the amendment to Hindu Succession Act to
Section 6 is not correct. Plaintiff Nos.1 and 2 and
defendant Nos.10 to 13 being daughters are also equally
entitled for share as that of defendant Nos.2 to 4 and late
Devaraj.
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69. Therefore, the appeal filed by the defendant
no.1 is liable to be allowed. The judgment and decree
insofar as granting decree for partition with regard to suit
schedule 'A' - item No.1 property is set aside. The
judgment and decree passed insofar as other properties
are concerned for partition (other than suit schedule 'A' -
item No.1 property) is confirmed except quantum of
share.
70. The appeal filed by defendant No.1 and cross
objection filed by plaintiff Nos.1 and 2 and defendant
Nos.10 and 13 are allowed in part. The cross objectors
namely plaintiff Nos.1 and 2 and defendant Nos.10 to 13
being daughters are entitled for equal share of 1/10th each
along with defendant Nos.2 to 4 and legal heirs of late
Devaraj who are defendant Nos.5 to 9 are entitled for
1/10th share each except in the property of suit schedule
'A' - item No.1 property. The decree insofar as partition in
respect of suit schedule 'A' - item No.1 property is set
aside and hereby declared as defendant No.1 is the
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bonafide purchaser of suit schedule 'A' - item No.1
property. Therefore, both the appeal and cross objection is
allowed. Accordingly, I proceed to pass the following
ORDER
(i) RFA.No.100182/2017 filed by the
appellant/defendant No.1 is allowed.
(ii) RFA.CROB.No.100009/2024 filed by plaintiff
Nos.1 and 2 and defendant Nos.10 and 13 is
allowed.
(iii) The judgment and decree dated 25.01.2017
passed in O.S.No.366/2014 by II Addl.
Senior Civil Judge, Hubballi, insofar as
decree for partitioning the suit schedule 'A' -
item No.1 property is set aside and
confirmed insofar as other properties are
concerned by granting share of 1/10th share
each to plaintiff Nos.1 and 2, defendant
Nos.2 to 4, defendant Nos.5 to 9 together
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get share of 1/10th each.
(iv) No order as to costs.
(v) Draw decree accordingly.
(vi) Registry is directed to transmit the TCR
along with copy of this order to the
concerned Court forthwith.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
PB
