Karnataka High Court
Shri Mallikarjun S/O Babagouda Patil vs Shri Nirmala W/O Iranagouda Patil on 3 March, 2025
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RFA No. 100560 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF MARCH, 2025
PRESENT
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
REGULAR FIRST APPEAL NO.100560 OF 2022 (PAR/POS)
BETWEEN:
SHRI MALLIKARJUN,
S/O BABAGOUDA PATIL
AGE: 67 YEARS, OCC: BUSINESS,
R/O: LIG-143, MAHANTESH NAGAR,
BELAGAVI -591313.
...APPELLANT
(BY SRI. DINESH M. KULKARNI, ADVOCATE)
AND:
1. SHRI NIRMALA
Digitally signed
W/O IRANAGOUDA PATIL,
by
MALLIKARJUN
RUDRAYYA
AGE: 66 YEARS, OCC: HOUSEHOLD,
KALMATH
Location: HIGH
COURT OF
R/O: NO.1073, RAMTEERTH NAGAR,
KARNATAKA
BELAGAVI -590016.
2. SHRI RAOSAHEB
S/O BABAGOUDA PATIL
AGE: 72 YEARS, OCC: BUSINESS,
R/O: PLOT NO. 640, DOUBLE ROAD STREAMS,
SECTOR NO.5, SHREENAGAR,
BELAGAVI -590016.
3. SHRI VIJAYKUMAR,
S/O BABAGOUDA PATIL,
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RFA No. 100560 of 2022
AGE: 69 YEARS, OCC: BUSINESS,
R/O: H.NO.1865, CHANNAGOUDA GALLI,
SANKESHWAR, TQ: HUKKERI,
BELAGAVI-591313.
4. SHRI MALLIKARJUN,
S/O BABAGOUDA PATIL
AGE: 67 YEARS, OCC: SERVICE,
R/O: LIG-143, MAHANTESH NAGAR,
BELAGAVI -590016.
DELETED AS PER COURT ORDER DATED 02.03.2023.
5. SHRI BASAVARAJ,
S/O BABAGOUDA PATIL,
AGE: 64 YEARS, OCC: BUSINESS,
R/O: NO. 1865, CHANNAGOUDA GALLI,
SANKESHWAR, TQ: HUKKERI,
DIST: BELAGAVI -591313.
6. SHRI RAJSHEKAR,
S/O BABAGOUDA PATIL,
AGE: 59 YEARS, OCC: PVT. SERVICE,
R/O: NO. 1865, CHANNAGOUDA GALLI,
SANKESHWAR, TQ. HUKKERI,
DIST: BELAGAVI -591313.
7. SHRI ASHWIN,
S/O SIDAGOUDA PATIL,
AGE: 53 YEARS, OCC: SERVICE,
R/O: FLAT NO. 3 & 4 PLOT NO. 277,
ADITYA APPT., AGARKAR ROAD,
TILAKWADI, BELAGAVI-590006.
8. SHRI SAMEER,
S/O SIDANGOUDA PATIL,
AGE: 51 YEARS, OCC: SERVICE,
R/O: FLAT NO. 3 & 4 PLOT NO.277,
ADITYA APPT., AGARKAR ROAD,
TILKAWADI, BELAGAVI-590006.
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RFA No. 100560 of 2022
9. SMT. MANJULA,
W/O BASAVARAJ MANGAVI,
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O: CTS NO.2556, CHANNAGOUDA GALLI,
SANKESHWAR, TQ: HUKKERI,
DIST: BELAGAVI-591313.
10. THE CHAIRMAN,
AL MEHADI CO-OPERATIVE CREDIT SOCIETY LTD.,
CTS NO. 2570/1 & 2570/2,
SANKESHWAR, TQ: HUKKERI,
DIST: BELAGAVI-591313.
11. SHRI CHANDRUGOUDA @ CHANDRASHEKAR,
S/O ANNASAHEB PATIL,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: CTS NO.2556,
CHANNAGOUDA GALLI,
SANKESHWAR, TQ: HUKKERI,
DIST: BELAGAVI-591313.
12. SHRI SHANKARGOUDA @ SHIVAKUMAR,
S/O ANNASAHEB PATIL,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: CTS NO.2556,
CHANNAGOUDA GALLI,
SANKESHWAR, TQ: HUKKERI,
DIST: BELAGAVI-591313.
13. SHRI ALAGOUDA,
S/O BHIMAGOUDA PATIL,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: CTS NO.2556, CHANNAGOUDA GALLI,
SANKESHWAR, TQ: HUKKERI,
DIST: BELAGAVI- 591313.
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RFA No. 100560 of 2022
14. THE MANAGER,
JAGGAJYOTI SHRI BASAWESHWAR SOUHARD
CO-OPERATIVE CREDIT SOCIETY LTD.,
SANKESHWAR,
TQ: HUKKERI, DIST: BELAGAVI-591313.
15. THE MANAGER,
UNION BANK OF INDIA,
BRANCH TILAKWADI,
BELAGAVI-590006.
16. SHRI SHIVANAND,
S/O CHANDRASHEKAR SHENDURI,
AGE: 46 YEARS, OCC: BUSINESS,
R/O: CTS NO. 2555, SANKESHWAR,
TQ: HUKKERI, DIST: BELAGAVI-591313.
...RESPONDENTS
(BY SRI. VITTHAL S. TELI, ADVOCATE FOR R1;
SRI. KIRANKUMAR S. CHATTIMATH, ADV. FOR R2 & R5;
SRI. GIRISH S. HULMANI, ADVOCATE FOR R15;
SRI. NEELENDRA D. GUNDE, ADVOCATE FOR R10;
R4- DELETED;
R3, R6 TO R9, R11 TO R14 AND R16 NOTICE DISPENSED
WITH)
THIS RFA FILED UNDER SECTION 96 READ WITH ORDER
41 RULE 1 OF CPC, 1908, AGAINST THE JUDGMENT AND
DECREE DATED 29.03.2022 PASSED IN O.S.NO.312/2014 ON
THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND
CHIEF JUDICIAL MAGISTRATE, BELAGAVI, PARTLY DECREEING
THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
HON'BLE MR. JUSTICE G BASAVARAJA
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RFA No. 100560 of 2022
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
This appeal is by the defendant No.3 assailing the
Judgment and decree dated 29th March, 2022 rendered in
O.S.No. 312/2014 by the I Additional Senior Civil Judge and
CJM, Belagavi, wherein the plaintiff's suit is partly decreed by
granting 1/7th share in Schedule 'A' Property and 1/7th share in
the half share held by the plaintiff's father in items No.1 to 8
and 10 of Schedule 'B' property. Plaintiff's suit, however, is
dismissed insofar as Item No.9, 11 and 12 of Schedule 'B'
Property is concerned, on the ground that the suit is instituted
without complying with the statutory requirement of issuance
of notice under Section 125 of the Karnataka Co-operative
Societies Act, 1959.
2. For the sake of brevity, the parties are referred to
as per their rank before the trial Court.
3. Before this Court delves into the matter, we deem it
necessary to cull out the family tree which is furnished along
with the appeal memo. The same is extracted as under:
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Babagouda - died on 04.09.1996
Kamaladevi - wife dead
Raosaheb Viayakumar Mallikarjum Basavaraj Rajshekhar Kasturi Nirmala
(D1) (D2) (D3) (D4) (D5) (Dead) (Plaintiff)
Ashwin (D6) Sameer (D7)
4. The Suit is by the sister primarily against her
brothers who are arrayed as defendants 1 to 5. Defendants 6
and 7 are niece and nephew respectively and children of pre-
deceased sister viz. Kasturi. One Babagouda is shown to be
the propositus who had a wife by name Kamaladevi. The said
propositus and Kamaladevi are said to have seven children (5
sons and 2 daughters). Plaintiff is the youngest sibling.
Plaintiff asserts that the suit schedule properties are the
ancestral properties and therefore, she is entitled to her
legitimate share in the suit schedule properties. According to
plaintiff, Schedule 'A' property is the house property bearing
LIG No.143 CTS No.9583 situated at Mahantesh Nagar,
Belagavi. Plaintiff asserts that this property is owned by her
father Babagouda who purchased it from Karnataka Housing
Board. Plaintiff has further specifically pleaded that items 1 to
4 of Schedule 'B' property situate at Sankeshwar were also
originally owned by her father Babagouda. Plaintiff asserts that
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after the death of her father-Babagouda, plaintiff and
defendants have succeeded to the suit schedule properties and
therefore, she claimed to be in joint possession and enjoyment
over all the suit schedule properties. Present suit is filed
alleging that defendants 1 to 5 have sold the suit schedule
properties despite there being no partition by metes and
bounds. It is further alleged that the plaintiff recently came to
know about this alienation when she obtained property extract
on 21st March, 2014. Plaintiff therefore claims that defendants
had no absolute title and therefore they could not have
ventured in selling the joint family properties.
5. Defendant No.3, on receipt of summons, has
tendered appearance and has contested the suit. Defendant
No.3 has filed written statement and stoutly denied the entire
averments of the plaint. Defendant No.3, however, had set up
a plea of prior partition in the family. According to defendant
No.3, the mother Kamaladevi, resolved to effect partition in the
family and therefore, she conveyed all her children to assemble
in the month of August, 1998 and the terms of the partition
were decided through the mother of plaintiff and defendants 1
to 5. As per the version of the defendant No.3, a specific
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defence is raised that since the plaintiff was being tortured by
her in-laws, the mother advised all the defendants to gift six
acres of agriculture land to the father-in-law of plaintiff.
Defendant No.3 also alleges that the propositus-Babagouda
was also compelled to transfer one share of Hira Sugar Factory
in the name of the plaintiff. Therefore, defendant No.3
contended that suppressing all these material facts, the present
suit is filed only to blackmail and harass the defendant No.3.
Defendant No.3 further claims that though Schedule 'A' plot
was allotted to plaintiff's father, however he claimed that the
entire sale consideration while securing the lease-cum-sale
agreement, was paid solely by defendant No.3 out his salary.
Therefore, defendant No.3 specifically pleaded that the father
had given an indication to family members that in the event a
partition is effected in the family, Schedule 'A' property should
be allotted to the defendant No.3. Citing family arrangement,
the defendant No.3 sought dismissal of the partition suit.
6. Trial Court having formulated issues, assessed the
oral and documentary evidence let in by both the parties. In
absence of rebuttal evidence, trial Court was of the view that
the plaintiff has succeeded in substantiating that Schedule 'A',
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'B' and 'C' properties are joint family properties. Therefore,
trial Court proceeded to partly decree the suit thereby granting
legitimate share to the plaintiff. While suit was dismissed
insofar as items 9, 11 and 12 of Schedule 'B' properties,
Plaintiff has not chosen to challenge the partial dismissal before
this Court in the light of liberty reserved to plaintiff to comply
Section 125 of Karnataka Co-operative Societies Act and
thereafter seek proper remedy at the hands of competent Civil
Court. Feeling aggrieved by the judgment and decree, more
particularly granting of share in Schedule 'A' Property,
defendant No.3 is before this Court.
7. Sri Dinesh M Kulkarni, learned Counsel appearing
for defendant No.3, has vehemently argued reiterating the
grounds urged in the appeal memo. Learned Counsel, while
questioning the reasons assigned by the trial Court has tried to
persuade this Court referring to the material on record. He
would point out that plaintiff's mother did convey 8.17 acres of
land in RS No.76/2 and 76/3. He would point out that the
plaintiff has voluntarily agreed to relinquish her right in lieu of
receiving 8.17 acres of land, which was originally held by
plaintiff's mother. Therefore, he would point out that, on
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equity, if the preliminary decree in Original Suit No.312 of 2014
is not reversed, the plaintiff who has made huge investment by
putting up construction in the said site allotted by the
Karnataka Housing Board, the same would lead to miscarriage
of justice.
8. Per contra, Sri Vittal S. Teli, learned counsel
appearing for plaintiff would point out that except Exhibit D5
which is the wardi submitted by defendants to effect change of
khata, no documentary evidence is placed on record indicating
that plaintiff has relinquished her legitimate right in the
property, in the manner known to law. He has brought to the
notice of this Court that unregistered relinquishment deed,
though found in the records, was not relied upon by defendant
No.3 and this unregistered relinquishment deed is not a part of
records as it is not exhibited and therefore, the trial Court has
rightly declined to advert to this document. Except Exhibit D5,
there is absolutely no evidence which would outweigh the
clinching evidence let in by the plaintiff. Therefore, he would
request this Court to dismiss the appeal.
9. Having heard the learned Counsel appearing the
plaintiff, learned counsels appearing for defendant No.3 and
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defendant No.9, the following points would arise for
consideration:
1. Whether the finding of the trial Court that
Schedule 'A', 'B' and 'C' properties are joint
family and ancestral properties is perverse
and palpably erroneous and therefore, warrant
interference at the hands of this Court?
2. Whether the defendant No.3 has succeeded in
substantiating that there was a family
partition and in the said family partition the
plaintiff has voluntarily relinquished her right
in the suit schedule property?
Finding on points 1 and 2:
10. Upon a thorough examination of the pleadings, oral
submissions, and documentary evidence, it is evident that
there is no substantial challenge to the nature of the suit
properties. Although defendant No.3 initially attempted to
establish that while the original allotment in Schedule 'A' was
made in favor of Babagouda the father of the plaintiff and
defendants 1 to 5, he had borne the entire construction
charges. This claim remains wholly unsubstantiated. The
records unequivocally establish that the property in question
was allotted to Babagouda by the Karnataka Housing Board in
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the year 1971. Defendant No.3 has put forth an assertion that
he contributed the entire sale consideration even before the
lease-cum-sale agreement was secured. However, this
assertion lacks any documentary support. One critical aspect
that cannot be overlooked is that, at the time of securing the
lease-cum-sale agreement, defendant No.3 was merely around
twenty years old. His contention that he was gainfully
employed and had sufficient financial resources to mobilize the
sale consideration for securing the lease-cum-sale agreement is
not backed by any concrete evidence. The only material
available in support of this claim is the bald assertion in his
written statement, which, by itself, cannot be considered as
substantive proof. Therefore, the claim of defendant No.3
regarding financial contribution towards the acquisition of the
suit properties remains unverified and devoid of merit.
11. Another crucial aspect that emerges in the present
case is the plea raised by defendant No.3 concerning the
alleged relinquishment of rights by the plaintiff. Initially,
defendant No.3 contended that the plaintiff had relinquished
her share in the suit properties. However, it is notable that
during the proceedings, defendant No.3 consciously abandoned
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this plea, which is apparent from the records. Although an
unregistered relinquishment deed is found in the case records,
it is evident that defendant No.3 has refrained from placing
reliance on this document. Further scrutiny of this document
reveals that it is not even signed by the plaintiff, thereby
rendering it legally ineffective. In an attempt to establish
relinquishment, defendant No.3 placed reliance on certain
affidavits. However, these affidavits were not formally marked
as exhibits during the trial. The only document that has been
marked is an application submitted by defendant No.3 to the
Survey Authorities, wherein a reference is made to the
plaintiff's alleged relinquishment of her legitimate right over the
properties. This application also contains a statement
suggesting that the plaintiff had no objection to mutating the
names of the male members of the family. Beyond this solitary
document, no other documentary evidence has been produced
by defendant No.3 to substantiate the claim that the plaintiff
relinquished her share in the suit properties. Additionally, in
the wardi submitted to the City Survey Authorities, the names
of all family members, including the plaintiff, her mother, and
her sister Kasturi, have been indicated. The presence of these
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names further dilutes the claim of defendant No.3 regarding
exclusive ownership.
12. The issue of relinquishment of property rights
through an unregistered deed or affidavit has been extensively
dealt with by this Court in a series of judicial pronouncements.
It is a well-settled principle of law that relinquishment of a
share in joint family ancestral property must be carried out in a
manner recognized by law. While it is permissible for some
members of a joint family to give up their share in the course
of an oral partition, any formal relinquishment through a
written document must comply with the statutory requirements
stipulated under Section 17 of the Registration Act. An
unregistered relinquishment deed does not operate to convey
title, nor does it result in the loss of property rights for the
individual executing such a document. The legal effect of an
unregistered relinquishment deed is, therefore, inadmissable.
In the present case, the document marked as Exhibit D5 does
not satisfy the legal mandate required under Section 17 of the
Registration Act. If this document is disregarded, defendant
No.3 is left without any substantive evidence to support his
claim that the plaintiff voluntarily gave up her share in the suit
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properties. Consequently, the defence set up by defendant No.3
on the basis of relinquishment is untenable in law and fact.
13. A meticulous examination of the entire records of
the case, including the pleadings and the evidence presented
by both parties, lends strong support to the version put forth
by the plaintiff. The material available on record clearly indicate
that the suit schedule properties are joint family properties.
This fundamental aspect has not been seriously contested by
defendant No.3. Furthermore, his assertion that he personally
contributed to the sale consideration at the time of securing the
lease-cum-sale agreement remains uncorroborated by any
tangible evidence. His plea is based purely on self-serving
statements without any independent verification or supporting
documentation. The absence of any substantial documentary
proof significantly weakens his claim and further strengthens
the plaintiff's position regarding the joint family nature of the
suit properties.
14. Defendant No.3 has also attempted to challenge the
decree by contending that there exist certain documents that
purportedly indicate that the plaintiff received 8.17 acres of
land originally owned by her mother. According to defendant
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No.3, these documents are crucial for determining the actual
controversy between the parties. However, such an argument
cannot be accepted at this stage of the proceedings. In civil
litigation involving immovable property, specific pleadings are
essential to enable the Court to frame proper issues. Once the
issues are framed, the parties are expected to lead both oral
and documentary evidence in support of their respective
claims. In the present case, no such specific pleadings are
found in the written statement filed by defendant No.3. It is
noteworthy that this argument was advanced for the first time
during the hearing before this Court, without having been
raised in the initial pleadings. Even assuming for the sake of
argument that such an assertion holds some merit, it would still
be legally unsustainable for two primary reasons. Firstly, the
alleged allotment of 8.17 acres of land to the plaintiff pertains
to the property owned by the mother of the plaintiff and
defendants 1 to 5. Any such allotment from the maternal
estate is entirely unrelated to the present dispute concerning
the ancestral joint family properties. Secondly, since no
specific pleadings were made in the written statement
regarding this aspect and no attempt was made to amend the
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written statement to introduce this contention, the Court
cannot entertain such a plea at this belated stage. Raising a
new ground for the first time in appellate proceedings, without
prior pleadings or specific issues framed, runs contrary to
established principles of civil procedure. Therefore, this
argument advanced by defendant No.3 holds no weight in law.
15. In view of the foregoing discussion, this Court finds
no merit in the contentions raised by defendant No.3.
Accordingly, the points formulated as No.1 and No.2 are
answered in the negative.
For the aforesaid reasons, we pass the following:
ORDER
1. First Appeal is devoid of merits and is
accordingly dismissed.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
Sd/-
(G BASAVARAJA)
JUDGE
lnn
