Mr K C Mahadevaiah vs Mrs Thulasamma
2025 Latest Caselaw 192 Kant

Karnataka High Court

Mr K C Mahadevaiah vs Mrs Thulasamma on 13 May, 2025

Author: Ravi V Hosmani

Bench: Ravi V Hosmani

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                                                              NC: 2025:KHC:18229
                                                             RSA No. 634 of 2013




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                           DATED THIS THE 13TH DAY OF MAY, 2025
                                            BEFORE
                          THE HON'BLE MR JUSTICE RAVI V HOSMANI
                      REGULAR SECOND APPEAL NO.634 OF 2013 (PAR)
                   BETWEEN:

                   1 . MR K.C. MAHADEVAIAH,
                       AGED ABOUT 53 YEARS,
                       R/O CHEERANAHALLI ROAD,
                       KUVEMPU EXTENSION,
                       K R NAGAR TOWN,
                       MYSORE DISTRICT 570 004.

                   2 . MR K.C. PUTTASWAMY,
                       S/O CHELUVAIAH @ HUCHAIAH,
                       AGED ABOUT 42 YEARS ,
                       R/O DODDAKEMPEGOWDANA KOPPAL,
                       HEBBAL HOBLI, K.R, NAGAR TALUK,
Digitally signed
by
                       MYSORE DISTRICT - 570 004.
GEETHAKUMARI                                                        ...APPELLANTS
PARLATTAYA S
Location: High
Court of           [BY SRI ABUBACKER SHAFI, ADVOCATE (VC)]
Karnataka

                   AND:

                      MRS.THULASAMMA,
                      D/O CHELUVAIAH @ HUCHAIAH,
                      AGED ABOUT 70 YEARS,
                      R/O MAATHUR VILLAGE,
                      HEBBAL HOBLI, K.R. NAGAR TALUK
                      MYSORE DISTRICT - 570 004.
                                                                   ...RESPONDENT
                   [BY SRI VYSHAK P.N., ADVOCATE FOR
                       SRI BHARGAV D. BHAT, ADVOCATE (VC)]

                         THIS RSA FILED U/S 100 CPC AGAINST THE JUDGMENT AND
                   DECREE DATED 19.12.2009 PASSED IN R.A.NO.22/2008 ON THE
                   FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-V, MYSORE,
                   ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
                   DECREE DATED 7.9.2007 PASSED IN OS.NO.106/2007 ON THE FILE
                   OF THE CIVIL JUDGE (SR.DN) K.R.NAGAR.
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                                                      NC: 2025:KHC:18229
                                                   RSA No. 634 of 2013




     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.12.2024, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:

CORAM:       HON'BLE MR JUSTICE RAVI V HOSMANI


                               CAV JUDGMENT

Challenging judgment and decree dated 19.12.2009

passed by Presiding Officer, Fast Track Court-V, Mysore, in RA

no.22/2008, this appeal is filed.

2. Brief facts as stated are that appellants were

defendants in OS no.106/2007 filed by respondent (plaintiff)

seeking partition and separate possession of 1/3rd share in

lands bearing Sy.no.154/1, measuring 7.7 guntas and

Sy.no.159/1, measuring 1 Acre 2 guntas situated in Siddapura

village; And also in Sy.no.185/2, measuring 1 Acre 38 guntas;

Sy.no.207/3A, measuring 1 Acre 28 guntas and Sy.no.128/6,

measuring 39 guntas, situated in Bhuvanahalli village (for short

'suit properties'); and for mesne profits etc.

3. In plaint, it was stated, plaintiff was daughter of

late Cheluvaiah @ Huchaiah through his first wife -

Smt.Javaramma, defendants were his children from 2nd wife. It

was stated, plaintiff and defendants constituted Hindu

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Undivided Family ('HUF' for short) and that suit properties

were their joint family properties. It was stated, during his life

time, Cheluvaiah was karta and maintaining suit properties.

Therefore, revenue records stood in his name. And about 15

years earlier Cheluvaiah died intestate. Therefore, plaintiff and

defendants succeeded to suit properties.

4. Such being case, without her consent, defendants

attempted to knock-off suit properties and got their names

mutated in revenue records. Plaintiff opposed same and

questioned defendants. When they gave evasive reply and

denied share in suit properties and did not account for income

derived from suit properties, she got issued legal notice

demanding her 1/3rd share in suit properties. When there was

no reply and defendants were making efforts to sell suit

properties, present suit was filed.

5. On appearance, defendants filed written statement

denying plaint averments. Relationship of plaintiff as daughter

of late Cheluvaiah through first wife was admitted. Even

defendants being her brothers as children through second wife

was admitted. Existence of joint family including plaintiff and

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defendants was denied. Even suit properties being joint family

properties were denied. Allegation about attempt to knock off

suit properties by defendants was denied. It was stated,

marriage of plaintiff with Kalahanumaiah of Mavatthur village,

Hebbal Hobli, KR Nagar was celebrated during lifetime of

Cheluvaiah, 50 years earlier by spending huge. At that time,

Cheluvaiah had purchased land bearing Sy.no.81/4, measuring

2 Acres 21 guntas in Mavatthur village in name of plaintiff's

husband - Kalahanumaiah. It was stated, since marriage,

plaintiff was residing in her matrimonial home which owned

more than 12 Acres of immovable properties and a house.

Thus, plaintiff was not concerned with family of defendants. It

was also stated, item no.3 of suit properties i.e. land bearing

Sy.no.185/2, measuring 7 guntas out of 1 Acre 38 guntas was

acquired by Special Land Acquisition Officer, H.P., Hunsur and

defendants had received compensation. It was further stated,

on 15.10.1990 i.e. during life time of Cheluvaiah, properties

were partitioned between defendants by executing panchayat

paalu parikath, with properties in schedule 'A' allotted to

defendant no.1, schedule 'B' to defendant no.2, subject to

payment of two kanduga paddy and Rs.100/- per month by

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each defendants to Cheluvaiah. Since then, defendants were in

separate possession and enjoyment of suit properties. In view

of above, suit for partition called for dismissal.

6. Based on pleading, trial Court framed following

issues:

1. Whether the plaintiff proves that the suit schedule properties are the joint family properties of herself and the defendant?

2. Whether the plaintiff is entitled for partition and separate possession of 1/3rd share in the suit schedule properties?

3. Whether the plaintiff is entitled for mesne profits?

4. Whether the defendants prove that there was a partition during the life time of their father, in the year 1990, accordingly, the defendants were enjoying their shares in the suit schedule properties?

5. What decree or order?

7. In trial, plaintiff examined herself as PW.1 and got

marked Exs.P1 to P7. No rebuttal evidence was led.

8. On consideration, trial Court answered issues no.1

to 3 in negative; issue no.4 in affirmative and issue no.5 by

dismissing suit.

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9. Aggrieved plaintiff filed appeal on various grounds

based on which first appellate Court framed following points:

1. Whether the trial Court is correct in holding that the plaintiff is not entitled for partition and separate possession of 1/3rd share in the suit schedule properties?

2. Whether the trial Court is correct in holding that there was a partition during the life time of Chaluvaiah; father of plaintiff and the defendants, in the year 1990 and accordingly, the defendants are enjoying their shares?

3. Whether the impugned judgment and decree call for interference by this Court?

4. To what order?

10. On consideration, points no.1 and 2 were answered

in negative; point no.3 in affirmative and point no.4 by allowing

appeal, setting-aside judgment and decree of trial Court and

decreeing suit holding plaintiff entitled for 1/3rd share in suit

properties.

11. Aggrieved defendants filed this second appeal.

12. Sri Abhubackar Shafi, learned counsel for

defendants submitted appeal was against divergent findings in

suit for partition and separate possession. It was submitted,

there was no dispute about relationship between parties and

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nature of suit properties as their ancestral joint family

properties. Defence set-up in written statement was prior

partition, expenditure of joint family funds for marriage of

plaintiff and purchase of property in name of plaintiff's husband

- Kalahanumaiah from joint family funds.

13. As pleaded, prior partition took place on 15.10.1990

during life time of Cheluvaiah. Though, defendants did not lead

evidence, they not only elicited admission from plaintiff (PW.1)

about prior partition, plaintiff admitted knowledge of same.

While passing impugned judgment and decree, trial Court noted

said admission to deny plaintiff's claim. But, first appellate

Court reversed finding on sole reasoning that panchayat palu

patti fell foul of Explanation to Section 6 (5) of Hindu

Succession Act, 1956 (for short 'HSA') for being unregistered.

Said reasoning was contrary to law declared by Hon'ble

Supreme Court in Thulasidhara and Anr. v. Narayanappa

and Ors., reported in 2019 (6) SCC 409 and

Venkatasubramaniya Chettiar (Died) and Ors. v. Perumal

Chettiar and Ors., reported in 2012 SCC OnLine Mad 1019,

for proposition that a document in nature of memorandum

evidencing a family arrangement does not require to be

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stamped or registered. Reliance was also placed on decisions in

Amarjeet Lal Suri v. Moti Sagar Suri, reported in 2005 SCC

OnLine Del 294 and Hemo Kanta Deka and Ors. v. Assam

Board of Revenue and Ors., reported in 2013 SCC OnLine

Gau 392 for proposition that bonafide family arrangement if

acted upon would bind all parties and estopp them from

challenging it. Relying on decision in Anup Kr. Debbarma v.

Ahindra Kr. Debbarma, reported in 2008 SCC OnLine Gau

565, it was submitted, family arrangement does not require

registration and would bar claim for partition. He relied on

decision in Pichakarapaillai v. Pachayapillai reported in

2009 SCC OnLine Mad 1705

14. Based on above, learned counsel sought for

allowing appeal by answering substantial questions of law in

favour of defendants.

15. On other hand, Sri Vyshak PN and Sri Bhargav D.

Bhat learned counsel for plaintiff opposed appeal and

contended suit for partition claiming 1/3rd share was dismissed

by trial Court without proper appreciation of material on record,

especially, when relationship of parties and nature of suit

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properties was not disputed. It were submitted, though

contended that Cheluvaiah purchased property in name of

plaintiff's husband, there was no evidence to substantiate

same. It was submitted, case of defendants that suit properties

were divided under panchayat parikath was untenable, since

said document was not registered and plaintiff was not party to

same. In fact, said parikath cannot be looked into in view of

decision of Hon'ble Supreme Court in case of Vineetha

Sharma v. Rakesh Sharma, reported in 2020 (9) SCC 1. It

was submitted, dismissal of suit merely on admission without

documentary evidence and defendants entering into witness-

box, would be contrary to law.

16. It was submitted, revenue records produced by

plaintiff showed entry of defendants name was not on basis of

partition, but succession on death of Cheluvaiah. Therefore,

plaintiff would be entitled for share either under Section 6 or

under Section 8 of HSA.

17. While passing impugned judgment and decree, first

appellate Court noted defendants had not led any evidence to

establish prior partition and drawing of inference by trial Court

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was only on basis of uncorroborated admission. It also noted

unregistered palupatti would not meet requirements of

Explanation to Section 6 (5) of HSA. Therefore, trial Court had

erred in dismissing suit and first appellate Court was fully

justified in exercising jurisdiction under Section 96 of CPC and

allowing appeal. It was submitted no substantial question of

law arose for consideration and sought dismissal of appeal.

18. Heard learned counsel, perused impugned

judgment and decree and record.

19. This appeal was admitted on 02.11.2023 to

consider following substantial questions of law.

1. Whether the defendant proves that the Appellate Court has committed an error in ignoring the admission of plaintiff in regard to the partition during the lifetime of her father and accordingly, the defendants are have been enjoying their respective shares?

2. Whether the Appellate Court is justified in reversing the judgment and decree passed by the Trial Court?

20. This appeal is by defendants against divergent

findings in suit for partition and separate possession. Plaintiff's

claim is that suit properties were joint family properties and

plaintiff was daughter of propositus - Cheluvaiah. To

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corroborate said assertion, she produced RoRs as Exs.P1 to P5

and mutation register extracts as Exs.P6 and P7. In their

written statement, defendants admitted relationship and nature

of properties. Suit was contested mainly on plea of prior

partition.

21. Perusal of records reveal that defendants did not

enter witness box or got marked panchayat palupatti dated

15.10.1990. They also failed to lead evidence to establish that

partition even if entered into orally was acted upon. Except

eliciting admission about partition effected during life time of

Cheluvaiah during cross-examination of PW.1, there is no

corroboration in any of documents got marked by plaintiff.

22. In so far as plea of prior partition, Hon'ble Supreme

Court in case of Vineetha Sharma (supra), clarified as follows:

"137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, 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 (sic effected) by a decree of a court, it may be accepted. A plea of partition

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based on oral evidence alone cannot be accepted and to be rejected outrightly."

(emphasis supplied)

23. It is settled law that powers of first appellate Court

in an appeal under Section 96 of CPC would be co-extensive as

that of trial Court and it would be justified in arriving at

independent conclusion, but on re-appreciation entire material

and assigning cogent reasons. Likewise, about confinement of

exercise of powers under Section 100 of CPC to only substantial

question of law and exclusion of re-appreciation for correction

of errors.

24. Allegation/contention of judgment and decree

suffering from perversity requires examination whether any

relevant material is excluded/ignored while passing judgment

which would have material bearing on decree and whether

judgment is based on any material which would not constitute

evidence.

25. Decisions relied upon by learned counsel for

appellant are for proposition that family arrangement would not

require either to be stamped or registered and when same is

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established to have been acted upon, would bar claim for

partition.

26. Admittedly, in instant case alleged prior partition is

in writing. Whether same is in nature of memorandum of

terms of partition or a family arrangement would be available

for examination only if said document were marked in

evidence. Therefore, ratio in decisions would not avail much to

defendants.

27. Hence, substantial questions of law are answered as

follows:

1: in negative;

2 : in affirmative.

Consequently, appeal is dismissed.

Sd/-

(RAVI V. HOSMANI) JUDGE

Psg*/AV/GRD