Karnataka High Court
Susheela W/O.Suresh Marathe vs Suhas Suresh Marathe on 25 November, 2025
Author: R.Devdas
Bench: R.Devdas
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RFA No.100402 of 2022
C/W RFA No.100014 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF NOVEMBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
REGULAR FIRST APPEAL NO.100402/2022 (DEC/INJ)
C/W REGULAR FIRST APPEAL NO.100014/2022
IN RFA NO.100402/2022:
BETWEEN:
1. SUSHEELA W/O. SURESH MARATHE,
AGED ABOUT 76 YEARS,
OCC: AGRICULTURIST AND HOUSEHOLD,
R/O. VEERBHADRA GALLI, SIRSI,
UTTAR KANNADA DISTRICT-581401.
2. SUDHEER SURESH MARATHE,
AGED ABOUT 52 YEARS,
OCC: AGRICULTURIST AND BUSINESS,
R/O. VEERBHADRA GALLI, SIRSI,
UTTAR KANNADA DISTRICT-581401.
3. SUCHETA W/O. SANJAY JOGA,
AGED ABOUT 54 YEARS,
OCC: HOUSEHOLD,
R/O. VEERBHADRA GALLI, SIRSI,
UTTAR KANNADA DISTRICT-581401,
NOW RESIDING AT BENGALURU.
- APPELLANTS
(BY SRI. A.P.HEGDE JANMANE AND
SRI. VIJAY MALALI, ADVOCATES)
AND:
SUHAS SURESH MARATHE,
AGED ABOUT 53 YEARS, OCC: BUSINESS,
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RFA No.100402 of 2022
C/W RFA No.100014 of 2022
R/O. VEERBHADRA GALLI, SIRSI,
UTTAR KANNADA DISTRICT-581401.
- RESPONDENT
(BY SRI. S.G.NANDOOR, ADVOCATE FOR
SRI. A.C.CHAKALABBI, ADVOCATES)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
CPC AGAINST THE JUDGMENT AND DECREE DATED 24.09.2021
PASSED IN O.S.NO.18/2013 ON THE FILE OF THE SENIOR CIVIL
JUDGE SIRSI, DISMISSING THE SUIT FILED FOR PARTITION AND
DECLARATION AND ETC.
IN RFA NO.100014/2022:
BETWEEN:
1. SUSHEELA W/O. SURESH MARATHE,
AGED ABOUT 76 YEARS,
OCC: AGRICULTURIST AND HOUSEHOLD,
R/O. VEERBHADRA GALLI, SIRSI,
UTTAR KANNADA DISTRICT-581401.
2. SUDHEER SURESH MARATHE,
AGED ABOUT 52 YEARS,
OCC: AGRICULTURIST AND BUSINESS,
R/O. VEERBHADRA GALLI, SIRSI,
UTTAR KANNADA DISTRICT-581401.
3. SUCHETA W/O. SANJAY JOGA,
AGED ABOUT 54 YEARS,
OCC: HOUSEHOLD,
R/O. VEERBHADRA GALLI, SIRSI,
UTTAR KANNADA DISTRICT-581401,
NOW RESIDING AT BENGALURU.
- APPELLANTS
(BY SRI. A.P.HEGDE JANMANE AND
SRI. VIJAY MALALI, ADVOCATES)
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RFA No.100402 of 2022
C/W RFA No.100014 of 2022
AND:
1. SUHAS SURESH MARATHE,
AGED ABOUT 53 YEARS, OCC: BUSINESS,
R/O. VEERBHADRA GALLI, SIRSI,
UTTAR KANNADA DISTRICT-581401.
2. SANJAY BALAVANTRAO JOG,
AGED ABOUT 61 YEARS,
OCC: RETIRED ENGINEER,
R/O. BANGALORE.
- RESPONDENTS
(BY SRI. S.G.NANDOOR, ADVOCATE FOR
SRI. A.C.CHAKALABBI, ADVOCATES FOR R1;
SRI. V.M.SHEELVANT, SRI. VINAY S.KOUJALAGI,
SRI. ROHIT L.SHEELVANT AND
SRI. M.L.VANTI, ADVOCATES FOR R2)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
CPC AGAINST THE JUDGMENT AND DECREE DATED 24.09.2021
PASSED IN O.S.NO.2/2013 ON THE FILE OF THE SENIOR CIVIL
JUDGE, SIRSI, DECREEING THE SUIT FILED FOR PARTITION AND
DECLARATION AND ETC.
THESE REGULAR FIRST APPEALS HAVING BEEN HEARD AND
RESERVED ON 17.11.2025, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
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RFA No.100402 of 2022
C/W RFA No.100014 of 2022
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE R.DEVDAS)
These two Regular First appeals arise out of common
judgments passed by the learned Senior Civil Judge, Sirsi
in O.S.Nos.2/2013, 18/2013 and 59/2016, therefore,
these appeals were clubbed, heard together and are being
disposed of by this common judgment.
2. For the sake of convenience, the parties are
referred to in terms of their ranking before the trial court.
Since O.S.No.2/2013 is the leading suit, the plaintiff
Sri.Suhas, shall be referred to as 'plaintiff'.
3. Sri.Suresh Marathe and his wife Susheela have
three children, Suhas, Sudheer and Sucheta. During the
lifetime of Sri.Suresh Marathe, being the Kartha of the
joint family, Sri.Suresh Marathe got executed a partition
deed dated 30.08.2000, duly registered, allocating four
items of immovable properties to his first son Suhas,
three immovable properties to his second son Sudheer,
while the eldest daughter Sucheta was allotted the
second floor for the purpose of residence, in property
bearing CTS No.1165/A1, to take effect after demise of
her parents. Sri.Suresh Marathe along with his wife
retained three items of immovable properties, including
CTS No.1165/A1. The joint family was eking out their
livelihood from a printing press in property bearing CTS
No.1142. Sri.Suresh Marathe along with his wife
Smt.Susheela executed a Will dated 18.11.2010, which is
the last testament of Sri.Suresh Marathe. Since no part of
the properties which were retained by Sri.Suresh Marathe
and his wife Smt.Susheela were bequeathed to their first
son Suhas, Sri.Suhas filed O.S.No.2/2013 seeking
cancellation of the registered Will dated 18.11.2010, with
a further prayer to treat the suit schedule properties as
joint family properties and to give equal share to the
plaintiff in the suit schedule properties. The suit schedule
properties include all the immovable properties belonging
to the joint family, including those that were allotted to
the parties under the partition deed. Subsequently, by
order dated 18.12.2019, the prayer is amended to
declare that the 'settlement' dated 30.08.2000 is
inequitable, unjust and consequently to cancel the
settlement deed. Smt.Susheela, Sri.Sudheer and
Smt.Sucheta filed O.S.No.18/2013 seeking a declaration
that in terms of the registered Will dated 18.11.2010,
plaintiff Nos.2 and 3, along with plaintiff No.1 are entitled
for joint possession of the suit schedule properties; grant
permanent injunction restraining the defendant Suhas
from interference with the suit schedule properties.
4. O.S.No.59/2016 is filed by the wife and
children of Sri.Suhas against Smt.Susheela, Sri.Sudheer,
Smt.Sucheta and Sri.Suhas seeking partition and
separate possession of the suit schedule properties.
5. Insofar as the Will dated 18.11.2010 is
concerned, the trial court is of the opinion that the
testators of the Will namely, Sri.Suresh Marathe and
Smt.Susheela have executed Wills, earlier too, but the
Will dated 18.11.2010 is the last testament. The trial
court has come to the conclusion that the execution of
the Will has been proved by examining the two attesting
witnesses. However, since the Will in question is a joint
Will, executed by Sri.Suresh Marathe and Smt.Susheela
expressing common intention, nevertheless, since
Smt.Susheela is still alive, the Will cannot be enforced.
The trial court has therefore held that the declaration
sought by Smt.Susheela, Sudheer and Sucheta in
O.S.No.18/2013 to declare joint ownership in respect of
the suit schedule properties cannot be granted as the
prayer is premature. Similarly, the trial court has held
that since the prayer made by Sri.Suhas in
O.S.No.2/2013 is allowed and partition of all the suit
schedule properties is decreed, the 'Will' becomes a 'void'
document.
6. As regards the partition deed and the prayer
made in O.S.No.2/2013 by Sri.Suhas, the trial court has
noticed from the material available on record, after
execution of the partition deed, the parties have been
living separately and the plaintiff and his family have a
separate ration card, election identity card etc., and
therefore, it is concluded that there is separation of the
joint family. The trial court has concluded that there is no
status of jointness and all the properties of the joint
family were divided in the year 2000 and Khata of the
respective properties have been changed in terms of the
partition deed and the parties are living separately,
enjoying their shares. It is held that the burden of proof
regarding continuation of the joint family status is heavy
on the plaintiff and the plaintiff has failed to prove the
existence and continuation of the joint family. The trial
court has concluded that having regard to Article 56 of
the Limitation Act, 1963, since the plaintiff cannot dispute
the fact that he is a signatory to the 'partition deed'
dated 30.08.2000, and since he has knowledge of the
execution of the partition deed, the plaintiff should have
questioned the partition deed on the ground of fraud,
forgery etc., within a period of three years from date of
the execution of the partition deed. The trial court has
also noticed the fact that the plaintiff proceeded to have
his name recorded in the revenue documents on the
strength of the partition deed. The plaintiff did not take
action against the said documents during the lifetime of
his father. The plaintiff has enjoyed the fruits of the
allotted shares and then raised objection against his
mother and brother alleging that his demand for share is
being rejected. The trial court has held that it is strange
that the plaintiff Sri.Suhas kept quiet till the death of his
father, he enjoyed the fruits of the partition but soon
after the death of his father, he rushed to the court by
making allegation against his mother and brother. It is
held that the plaintiff utterly failed to prove that Ex.P17 is
not a partition deed. Nevertheless, the trial court has
decreed the suit and directed partition of the suit
schedule properties.
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7. Learned counsel Sri.A.P.Hegde Janmane,
appearing for the appellants Smt.Susheela, Sri.Sudheer
and Smt.Sucheta, however submits that despite the
above findings, the trial court has decreed the suit filed
by Sri.Suhas and his wife and children, on the ground
that there is inequitable partition. The trial court has
accepted the contention of Sri.Suhas and his family
members that properties having lesser value have been
allotted to Sri.Suhas and valuable properties have been
allotted to Sri.Sudheer. The trial court has accepted the
contention that the family had valuable moveable
properties and monies deposited in various banks and no
part of the movables have been allotted to Sri.Suhas, in
the partition deed. The trial court has therefore held that
Ex.P17 is not a real partition deed, it is only a family
settlement which can be re-opened at any point of time.
8. Learned counsel Sri.A.P.Hegde Janmane has
drawn the attention of this court to a decision of the Apex
Court in the case of TAJWANT SINGH (DEAD) THROUGH LRS
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VS GURCHARAN RAM (DEAD) THROUGH LRS AND OTHERS in
CIVIL APPEAL NO.3353/2012 DATED 04.09.2019, where
it was held that the endeavour of the appellant is to
reopen the family settlement and get a re-partition done
of all the properties, which cannot be permissible and full
sanctity should be given to a family settlement as held in
KALE AND OTHERS VS DEPUTY DIRECTOR OF CONSOLIDATION
AND OTHERS, reported in AIR 1976 SC 807. Learned
counsel submitted that Ex.P17 is a registered partition
deed and the plaintiff has not denied the execution of the
deed. It is also strange that the trial court has arrived at
such a conclusion even after finding that the plaintiff did
not take action against the said document during the
lifetime of his father and within the period of limitation
prescribed in Article 58 of the Limitation Act. Learned
counsel submitted that even if it is the contention of the
plaintiff that there was inequitable partition, even then,
the partition deed should have been challenged within the
period prescribed under the Limitation Act. That position
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having been accepted by the trial court, the trial court
has erred in decreeing the suit, only on the ground that
there was inequitable partition. The trial court has
ignored the question of limitation.
9. On the other hand, learned counsel for the
plaintiffs sought to support the impugned judgment
passed by the trial court. Learned counsel pointed out to
the findings of the trial court in the impugned judgment,
having considered the definition of the term 'settlement'
as found in the dictionaries, it was held that a settlement
means the action of reaching an agreement, the
settlement of a dispute, however, Ex.P17 does not end
the dispute between the parties, but it increases the
dispute. In that view of the matter, the trial court is right
in arriving at a conclusion that there is discrimination in
the matter of division of properties. Only Kachha house is
allotted with a condition to use ladder with the permission
of Sri.Sudheer and therefore, the plaintiffs made out a
case for re-opening of partition. Having arrived at such a
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conclusion, since the joint family properties required re-
partition, the Will executed by Sri.Suresh Marathe and his
wife Smt.Susheela was rightly held as void by the trial
court.
10. Learned counsel Sri.V.M.Sheelvant, appearing
for respondent No.2, the original defendant No.4 in
O.S.No.2/2013 (the husband of Smt.Sucheta), contended
that suit schedule properties at schedule-C and D were
separate properties of Sri.Suresh Marathe. It is submitted
that the plaintiffs have admitted during their cross-
examination that the said properties belonged to the
uncle of Sri.Suresh Marathe and since Sri.Suresh Marathe
acquired the same from his uncle, they were not
ancestral properties of Sri.Suresh Marathe. Defendant
No.4 purchased the properties under registered sale
deeds from Sri.Suresh Marathe, and therefore, the said
properties could not have been included in the suit
schedule. It submitted that although the trial court has
noticed the admission of P.W.1, nevertheless, no findings
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have been given in the impugned judgment for accepting
the claim of the plaintiffs, insofar as schedule-C and D
are concerned. Defendant No.4 is the absolute owner of
schedule-C and D properties and therefore, the impugned
judgment as regards the said two items of properties
cannot be sustained.
11. Heard learned counsel Sri.A.P.Hegde Janmane
for the appellants, learned counsel Sri.S.G.Nandoor for
respondent No.1, learned counsel Sri.V.M.Sheelvant for
respondent No.2 and perused the appeal memo and
original records.
12. The prayer in the suit in O.S.No.2/2013 is to
declare the registered partition deed dated 30.08.2000 as
void, on the ground that it is inequitable, unjust and
illegal. The other prayer is directed against registered Will
dated 18.11.2010 executed by Sri.Suresh Marathe and
his wife Smt.Susheela. A plain reading of the registered
partition deed dated 30.08.2000, shows that the parties
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to the said instrument have understood the document as
an instrument to partition the joint family properties. The
plaintiff Sri.Suhas is an executant of the said document
and the plaintiff has not denied the fact that he has
executed the document. However, the plaintiff seeks to
contend that the said document is a settlement deed
which did not actually divide the joint family properties. It
was meant as an expression of the intention of Sri.Suresh
Marathe and a separate document was to be executed in
the future to physically divide the joint family properties.
13. The Transfer of Property Act does not define
the words 'partition' or 'settlement'. On the other hand,
clause (k) of Sub-Section 1 of Section 2 of the Karnataka
Stamp Act defines an 'instrument of partition' to mean an
instrument whereby co-owners of any property divide or
agreed to divide such property in severalty. Clause (q)
therein defines 'settlement' to mean any non-
testamentary deposition in writing, of movable or
immovable property made for the purpose of distributing
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property of the settler among his family or those for
whom he desires to provide, or for the purpose of
providing for some person dependent on him. The stark
difference between 'partition' and 'settlement' is the
nature of the property which could be dealt with. A
partition is therefore, in respect of property belonging to
the co-owners. On the other hand, the property which
can be settled under a 'settlement' is a property
belonging to the settler, viz., the settlers separate
property. Therefore, there is no strength in the
contention of the plaintiff Sri.Suhas, that the document in
question is a deed of settlement and not a deed of
partition. The recital in the partition deed makes it clear,
that the parties intended to partition and divide the joint
family properties. The parties to the document have
accordingly understood the purport and intention of the
terms of the partition deed and after execution of the
partition deed, the parties thereto have proceeded to act
in accordance with the terms of the partition deed. The
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respective parties to the document have exercised acts of
ownership over the respective properties which fell to
their share. They have got the revenue records
transferred in their respective names and have exercised
acts of ownership exclusively. Further, when admittedly
the properties which were divided and allotted under the
said document were enjoyed separately by each of the
allottees were admittedly joint family properties, the
plaintiff is precluded from contending that the said
document is a deed of settlement. As noticed
hereinabove, what could be settled or distributed under a
settlement deed is the exclusive, self-acquired properties
or separate properties of the settler. Since the claim of
the plaintiff is that the properties that were divided under
the registered partition deed dated 30.08.2000 are joint
family properties, the division thereof could happen only
by way of partition and not settlement.
14. It is necessary to notice that the prayer
seeking declaration of the partition deed dated
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30.08.2000 as a void document is on the ground that it is
inequitable, unjust and illegal, but, no particulars of the
alleged fraud or misrepresentation has been disclosed.
The Hon'ble Apex Court in the case of RANGANAYAKAMMA
AND ANOTHER VS K.S.PRAKASH (DEAD) BY LRS AND OTHERS
reported (2008) 15 SCC 673 has held that the
provisions of Order 6 Rule 4 of CPC cannot be lost sight
of. When a fraud is alleged, the particulars thereof are
required to be pleaded and proved. When there is nothing
to show nor the plaint contains any averments that a
fraud and misrepresentation has been practiced on the
plaintiff, the registered document would not be void but
only voidable. It was held that the illegality of a contract
need not be pleaded, but, when a contract said to be
voidable by reason of any coercion, misrepresentation or
fraud, the particulars thereof are required to be pleaded.
It is a well settled principle of law that a void document is
not required to be voided whereas a voidable document
must be. If, however a document is prima facie valid, a
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presumption arises in regard to its genuineness.
15. In the light of the above facts, the next
question that arises is regarding limitation. In the said
decision of RANGANAYAKKAMMA (supra), their Lordships
have held that the applicability of Article 65 or Article 110
of the Limitation Act, on the one hand, and Article 59 on
the other, would depend upon the factual situation
involved in a case. A decree for setting aside of a
document may be sought for in terms of Section 31 of
the Specific Relief Act. Applicability of Article 59 would
depend upon the question as to whether the deed of
partition was required to be set aside or not. Since it is
not disputed that the plaintiff Sri.Suhas was party to the
partition deed dated 30.08.2000 and all other members
of the family were executants of the document, the
document is not a void document. Therefore, since the
registered document, at best is voidable at the instance
of the plaintiff, then the declaration should have been
sought within the period of limitation prescribed under
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Article 56 of the Limitation Act, i.e., within three years
from the date of registration of the document. The suit in
O.S.No.2/2013 was filed by Sri.Suhas, seeking a
declaration regarding the registered partition deed dated
30.08.2000, long after the period of three years
commencing from the date of registration, and therefore
the suit is required to be dismissed on the ground of
limitation.
16. Consequently, O.S.No.59/2016 filed by the
wife and children of Sri.Suhas seeking partition and
separate possession of the suit schedule properties
should also fail for the same reason.
17. Insofar as O.S.No.18/2013 filed by
Smt.Susheela, Sri.Sudheer and Smt.Sucheta, seeking
declaration that in terms of the registered Will dated
18.11.2010, plaintiff Nos.2 and 3, along with plaintiff
No.1 are entitled for joint possession of the suit schedule
properties and for grant of permanent injunction
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restraining the defendant Sri.Suhas from interference
with the suit schedule properties, this court should
uphold the findings of the trial court that the beneficiaries
under the Will cannot get ownership of the properties
before the death of both the testators. Since
Smt.Susheela is alive, the joint Will executed by
Smt.Susheela along with her husband Sri.Suresh Marathe
cannot be executed during the lifetime of Smt.Susheela.
However, insofar as the prayer in O.S.No.18/2013 for
grant of permanent injunction restraining the defendant
Sri.Suhas from interfering with the suit schedule
properties is concerned, the prayer can be granted in
favour of plaintiff No.1-Smt.Susheela. Under the deed of
partition dated 30.08.2000, the suit schedule properties
in O.S.No.18/2013, fell to the share of Sri.Suresh
Marathe and his wife Smt.Susheela. Having regard to
Section 8 of the Transfer of Property Act, the transfer
under the deed of partition took effect forthwith and all
the interest which the transferee acquired under the
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registered deed stood transferred immediately after the
execution and registration of the document. From that
moment, all other persons and parties to the partition
deed loose all rights in respect of those properties which
fell to the share of Sri.Suresh Marathe and Smt.Susheela.
Therefore, Smt.Susheela is entitled for and is granted the
relief of permanent injunction restraining the defendant
Sri.Suhas from interfering with the suit schedule
properties in O.S.No.18/2013.
18. Insofar as the partition in respect of movable
properties are concerned, this court is of the considered
opinion that no material evidence is placed before this
court to show that prior to execution of a partition deed
dated 30.08.2000 the joint family had in its possession
the movable items shown in the schedule. Therefore, the
question of granting partition of the movable properties
as claimed in O.S.No.2/2013 and O.S.No.59/2016, will
not arise.
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19. For the reasons stated above, this court
proceeds to pass the following:
ORDER
i) RFA No.100014/2022 is allowed while setting
aside the impugned judgment and decree
passed in O.S.No.2/2013. Consequently, the
suit in O.S.No.2/2013 stands dismissed.
ii) RFA No.100402/2022 is allowed in part. The
suit in O.S.No.18/2013 is allowed in respect of
prayer No.2 and the defendant Sri.Suhas is
permanently restrained from interfering with
the suit schedule properties, insofar as plaintiff
No.1 is concerned. Prayer No.1 stands
rejected. Plaintiff No.1 is entitled for costs
thereof.
Ordered accordingly.
Sd/-
(R.DEVDAS)
JUDGE
Sd/-
(B. MURALIDHARA PAI)
JUDGE
MBS
CT: VH
