Karnataka High Court

Maleppa S/O Venkappa Chanagoudar vs Smt. Parvatewwa W/O Arjun Biroji on 3 November, 2025

Author: R.Devdas

Bench: R.Devdas

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                                                       RFA No. 100197 of 2022


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                   IN THE HIGH COURT OF KARNATAKA, AT DHARWAD

                     DATED THIS THE 3RD DAY OF NOVEMBER, 2025
                                     PRESENT

                         THE HON'BLE MR. JUSTICE R.DEVDAS
                                       AND
                    THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI

                           R.F.A. NO.100197 OF 2022 (PAR/POS)

                    BETWEEN:

                    MALEPPA S/O. VENKAPPA CHANAGOUDAR,
                    AGE ABOUT 52 YEARS, OCC: AGRICULTURE,
                    R/O. METAGUD, TALUK: MUDHOL.
                                                                 ...APPELLANT
                    (BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADV. FOR
                        SRI. UMESH P. HAKKARAKI, ADVOCATE)

                    AND:

                    1.     SMT. PARVATEWWA W/O. ARJUN BIROJI,
                           AGE: 48 YEARS,
                           OCC: AGRICULTURE AND HOUSEHOLD WORK,
Digitally signed           R/O. METAGUD, TALUK: MUDHOL,
by V N
BADIGER                    NOW AT: KOPPA S.K. TALUK: BILAGI-587313.
Location: High
Court of
Karnataka,
Dharwad Bench.      2.     SMT. SAVAKKA W/O. SUBHAS CHIMMAD,
                           AGE: 35 YEARS,
                           OCC: AGRICULTURE AND HOUSEHOLD WORK,
                           R/O. METAGUD, TALUK: MUDHOL,
                           NOW AT: MUGALOKOD, TALUK: MUDHOL-587313.

                    3.     SMT. HANAMAWWA W/O. VENKAPPA CHANAGOUDAR,
                           AGE: 72 YEARS,
                           OCC: AGRICULTURE AND HOUSEHOLD,
                           R/O. METAGUD, TALUK: MUDHOL-587313.
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                                 RFA No. 100197 of 2022


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4.   LAKKAPPA S/O. VENKAPPA CHANGOUDAR,
     AGE: 38 YEARS, OCC: AGRICULTURE,
     R/O. METAGUD, TALUK: MUDHOL,
     DISTRICT: BAGALKOT-587101.

5.   CHANDAPA S/O. MALEPPA CHANGOUDAR,
     AGE: 22 YEARS, OCC: AGRICULTURE,
     R/O. METAGUD, TALUK: MUDHOL,
     DISTRICT BAGALKOT-587101.

6.   SMT. KASHAVVA W/O. MARUTI RAMAGOND,
     AGE: 40 YEARS,
     OCC: AGRICULTURE AND HOUSEHOLD WORK,
     R/O. RUGI, TALUK: MUDHOL,
     DISTRICT: BAGALKOT-587101.

7.    SMT. KAMALAWWA W/O. KAREPPA JEERAGAL,
      AGE: 34 YEARS,
      OCC: AGRICULTURE AND HOUSEHOLD WORK,
      R/O. HUNSHIKATTI, TALUK: JAMAKHANDI,
      DISTRICT: BAGALKOT-587101.
                                          ...RESPONDENTS
(BY SRI. GANGADHAR S. HOSAKERI, ADV. FOR R1 & R2;
    NOTICE TO R3 TO R7 ARE SERVED BUT UNREPRESENTED)

     THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER XLI
RULE 1 READ WITH SECTION 96 OF CPC., PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 22.01.2020 PASSED
BY THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
JMFC, MUDHOL IN O.S.NO.69/2017 AND CONSEQUENTLY
DISMISS THE SUIT AND ETC.

     THIS APPEAL, HAVING BEEN HEARD AND RESERVED ON
13.10.2025,  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. 100197 of 2022


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                          CAV JUDGMENT

(PER: THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI)

1. This is the regular first appeal filed by Defendant

No.2 in O.S. No.69/2017 on the file of the Prl. Senior Civil Judge

and JMFC, Mudhol under Order XLI Rule 1 read with Section 96

of Code of Civil Procedure challenging the judgment and decree

dated 22.01.2020, passed therein.

2. The parties to this appeal are referred herein as per

their status before the trial court.

3. Admittedly, the Plaintiffs and Defendant Nos.2, 3, 5

and 6 are the children of one Sri Venkappa Maleppa

Chanagoudar and Defendant No.1 namely Smt. Parvatewwa.

Defendant No.4 is the son of Defendant No.2.

4. The Plaintiffs, who are the daughters of the

propositus, have maintained the suit claiming their 1/7th share

each in Schedule B properties i.e. 11 items of landed properties

and 2 items of house properties. They have claimed the share in

these properties on the ground that they are the joint owners of

the schedule properties along with the Defendants and that all

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these properties are possessed and owned by the parties to the

suit jointly.

5. Defendant Nos.2 and 3 are the only contesting

Defendants in the case. They have categorically admitted that

the Plaintiffs and Defendant Nos.1 to 3, 5 and 6 have got

legitimate share in land bearing R.S. No.19/1 and house bearing

No.VPC No.48 of Metagudda Village and contended that all other

properties are their self acquired properties and no one else has

got any right, title or interest over those properties.

6. After contest, the trial Court passed impugned

judgment and decree holding that the Plaintiffs and Defendant

Nos.1 to 3, 5 and 6 are entitled for 1/7th share each in all the

schedule properties. Being aggrieved by the said judgment and

decree, Defendant No.2 has come up with this appeal. In the

appeal memo, Defendant No.2 has prayed to set aside impugned

judgment and decree and consequently to dismiss the suit.

However, during the course of argument learned Counsel for

Defendant No.2 submitted that this appeal has been filed only to

set aside impugned judgment and decree passed insofar as their

self acquired properties.

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7. Sri Mallikarjunswamy B. Hiremath, learned Counsel

for Defendant No.2 has vehemently submitted that learned trial

Court has committed grave error in not framing proper issues in

the case and then wrongly proceeded to hold that all the

schedule properties are joint family properties, ignoring

pleadings of the parties and the materials available on record.

He has contended that the impugned judgment and decree

suffers from serious infirmity and resulted in miscarriage of

justice. In view of the same, learned Counsel for the above

circumstances, he contended that impugned judgment and

decree needs to be set aside.

8. Per contra, Sri Gangadhar S. Hosakeri, learned

Counsel for Plaintiffs supported the findings recorded by the trial

court by contending that the trial court has rightly appreciated

the materials available and arrived at a proper conclusion. He

submitted there are sufficient evidence on record to show that

the propositus namely Sri Venkappa Maleppa Channagoudar had

other property, which was sold to J.K. Cement Factory and out of

its sale proceeds other properties were purchased in the names

of his family members. As such he submitted that learned trial

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court is fully justified in holding that the Plaintiffs are entitled for

1/7th share each in all the schedule properties.

9. We have given our anxious consideration to the

arguments advanced by learned counsels appearing for both side

and perused all relevant the materials available on record. In

the light of above referred rival contentions of the parties, the

points that would arise for our consideration in this appeal are:

1. Whether the trial court is justified in holding that the Plaintiffs are entitled for a share in all the schedule properties?

2. What Order?

10. Point No.1 : The Plaintiffs have maintained the suit

for partition and separate possession, claiming their 1/7th share

each in following properties:

Landed properties:

            Sl.No.    R.S. Nos.                   Village
            01.    19/1                 Ningapur, Tal: Mudhol
            02.    151/1A/2             Jaliber, Tal: Mudhol
            03.    151/1A/1                        -do-
            04.    159/2                           -do-
            05.    56/2                 Metagud, Tal: Mudhol
            06.    56/5                            -do-
            07.    56/11                           -do-
            08.    56/12                           -do-

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           09.    133/1                         -do-
           10.    133/2                         -do-
           11.    205/3                         -do-
           House properties:
           Sl.No. VPC No.                     Village
           01.    48                    Metagud, Tal: Mudhol
           02.    125/2                        -do-

11. The first and foremost ground raised by Defendant

Nos.2 and 3 to challenge the impugned judgment and decree is

that the trial court has failed to frame proper issues in the case

based on pleadings of the parties and that such failure on the

part of the trial court has misdirected itself in arriving at a proper

conclusion.

12. In order to appreciate the above contention, it

requires referring to the pleadings of the parties. The relevant

averments of the plaint are found at its Para Nos.5 to 7, which

reads as under :

"5. Popositus Venkappa Maleppa Chanagoudar is dead on 18/2/2013 leaving behind him the present plaintiffs and Defendants as his legal heirs. Present plaintiffs and Defendant Nos.5 and 6 though they are married daughters of deceased Venkappa, they along with other defendants continued to own and possess the suit properties jointly. During the life time of Venkappa, all the suit schedule 'B' properties are possessed and owned by plaintiffs and Defendants jointly. At no point of time during the life time of Venkappa or after the death of Venkappa, partition has

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taken place in respect of suit schedule 'B' properties. Hence in all the suit schedule 'B' properties, plaintiffs and Defendants have got joint undivided share. Defendant No.4 who is a son of Defendant No.2 has a share only in the property of Defendant No.2 in the event of partition. As one of the properties is standing in the name of Defendant No.4, hence he has been added as formal and necessary party to this suit. In fact Defendant No.4 supposed to claim only in the share of Defendant No.2.

6. Very recently defendant Nos.2 and 3 have started to act adverse to the interest of plaintiffs and other defendants and also they started causing obstructions to the plaintiffs in their joint peaceful possession and enjoyment of the suit schedule 'B' properties. Hence plaintiffs suspecting the conduct of defendant Nos.2 and 3 collected the necessary records and it was revealed from the records that major of the suit properties have been mutated and shown to be partitioned in the name of defendant Nos.2 and 3 and also defendant No.4 without the knowledge and consent of plaintiffs and other defendants. An alleged mutation does not create any right title or interest in favour of any of the defendants. In fact all the suit schedule 'B' properties are the joint ownership of plaintiffs and defendants. Then plaintiffs suspecting the conduct and behaviour of the defendants personally and also through elders requested the defendants to effect partition and also to allot their legitimate share in suit schedule 'B' properties but the defendants have flatly refused to effect partition and to allot their legitimate share in the suit schedule properties. Hence plaintiffs are constrained to file this suit for partition and separate possession against' the defendants.

7. Plaintiffs are jointly entitled to 2/7th share (each 1/7th share) in suit schedule 'B' properties and other

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defendants except defendant No.4 are having 1/7th share each in the suit schedule 'B' properties."

13. Whereas, the Defendant Nos.2 and 3 have conceded

the right of the Plaintiffs as well as of other defendants to claim

share in two items of schedule properties i.e., the land bearing

R.S. No.19/1 in Ningapur Village and the house bearing VPC

No.48 in Metagud Village. But, they have specifically contended

that all other schedule properties are their self acquired

properties and that neither the Plaintiffs nor other Defendants

have got any right or title in those/remaining schedule

properties.

14. The trial court has framed the following issues in the

case:

"1. Whether the plaintiffs proves, that they along with Defendants are in joint possession and enjoyment of suit properties in which they are having 1/7th share each?

2. Whether the Defendant No.2 and 3 proves that the father of Defendant No.1 and 2 namely Venkappa Chanagoudar has raised loan from private persons to perform the marriage of plaintiffs, Defendant No.5 and 6?

3. Whether the Defendant No.2 and 3 proves that they have purchased R.S.No.133/2 property of Mettagudda village from Babu Ishwar Kori in the name of his

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brother Hanamappa Venkappa Chanagoudar through registered sale deed?

4. Whether the Defendant No.2 and 3 proves that the property bearing R.S.No.133/1 was fallen to the share of Defendant No.1 and R.S.No.133/2 was fallen to the share of Defendant No.2 as per partition?

5. Whether the Defendant No.2 and 3 proves that the Defendant No.3 has purchased R.S.No.159/2 property through sale deed dtd: 08.10.2009 out of his self earnings and the Defendant No.2 has purchased R.S.No.151/1 through a sale deed dtd: 07.03.1988 out of his self-earnings?

6. Whether the Defendant No.2 and 3 proves that they have jointly purchased 04 acres in R.S.No.56/1 from Suleman Mohammadsab Tahasildar and others through a sale deed dtd: 07.11.1994 and the Defendant No.2 has purchased 04 acres in R.S.No.56/1 out of their self-earnings through a sale deed dt: 30.03.1998 elderly persons?

7. Whether the Defendant No.2 and 3 proves that the Defendant No.2 has purchased R.S.No.205/3 property and house property bearing No.125/2 out of his self- earnings?

8. Whether plaintiffs are entitled for the suit relief as prayed for?

9. What order or decree?"

15. It is well settled that every hindu family is presumed

to be a joint hindu family unless a separation is proved.

However, there is no such presumption that any property they

hold, is a joint family property. This position of law has been

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reiterated by Hon'ble Supreme Court of India in Surendra

Kumar Vs Phoolchand (dead) through Lrs. and another,

reported in (1996) 2 SCC 491, wherein it is held,

".....It is no doubt true that there is no presumption that a family because it is joint has possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted. But where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family....."

16. In the case on hand, the careful examination of the

pleadings of the parties and the issues framed by the trial court

would go to show that the trial court has failed to frame a

material issue casting burden on the Plaintiffs of proving their

joint ownership over the schedule properties. It is because the

initial burden is on them of proving their alleged joint ownership

over the schedule properties so as to show their entitlement to

claim share in the schedule properties. Even then, the materials

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on record indicate that the parties to the suit have gone to trial

with clear understanding about the case of their opposite side

and that no prejudice has been caused to any of the parties to

the suit on account of non-framing of such an issue.

17. As already pointed out, Defendant Nos. 2 and 3 have

admitted the case of the Plaintiffs to the extent of two items of

properties i.e, the land bearing R.S.no.19/1 measuring 4 acre 17

guntas situated in Ningapur Village of Mudhol Taluka and a house

bearing VPC No.48 situated in Metagudd Village. They have

categorically admitted that the propositus namely Sri Venkappa

Maleppa Channagoudar was the owner of land bearing R.S.

No.19/1 and that the house bearing VPC No.48 stands in his

name. Thereby the parties to the suit are not at dispute

regarding the right of the Plaintiffs to claim share in these two

items of the schedule properties and averments of the plaint lack

the essential material facts to lay foundation to claim a share in

the schedule properties. The averments of the plaint are totally

silent about the family of the Plaintiffs having possessed any

joint family property or the nucleus for acquiring the schedule

properties.

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18. Coming to the claim of the Plaintiffs for a share in the

remaining schedule properties, the averments of the plaint

indicate that it lacks the essential material facts to show the right

of the Plaintiffs to claim a share in the schedule properties. The

averments of the plaint are totally silent about the family of the

Plaintiffs having possessed any joint family property or the

nucleus, for acquiring the schedule properties. Thereby, the

Plaintiffs have failed to plead essential and imperative material

facts regarding mode of acquiring the schedule properties and

more particularly the properties in dispute.

19. The case papers reveal that in support of their case

both the plaintiffs have stepped into witness box and deposed

before the trial court as PW-1 and PW-2 respectively.

Nonetheless, during their examination-in-chief they have not

made any statement other than reiterating the averments of the

plaint. In view of the same, it is to be held that the Plaintiffs

have failed to discharge the initial burden on them of proving

their joint ownership over the schedule properties and

particularly the properties under dispute.

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20. Undisputedly, one of the properties i.e, R.S.

No.133/2 of Metagudd Village was purchased in the name of Sri

Hanmappa, the brother of the Plaintiffs and Defendant Nos.2,3,5

and 6. One more property i.e, R.S. No.205/3 has been

purchased in the name of Defendant No.4, who is the son of

Defendant No.2. Further, all other properties in dispute have

been purchased either jointly in the names of Defendant Nos.2

and 3 or in their individual names.

21. Now, the material question would be the basis for the

Plaintiffs to claim a share in these properties under dispute. As

already pointed out, the Plaintiffs have vaguely contended that

all these properties are possessed and owned jointly by the

parties to the suit. During their examination in chief the

Plaintiffs have not whispered anything about mode of acquiring

joint ownership or regarding their joint possession and

enjoyment over these properties. Further, the answers elicited

from the mouth of the Plaintiffs during their cross examination,

would go to show that neither the Plaintiffs nor their other sisters

have contributed anything for acquiring those properties and that

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none of them is in possession and enjoyment of any of the

properties in dispute.

22. On the other hand, it is the definite case of the

Defendant Nos.2 and 3 that they had purchased the land bearing

R.S. No.133/2 in the name of their brother namely Sri

Hanmappa and that after his death on 7.10.1990, they got

mutated said land in their names and then got partitioned the

said property amongst themselves. It is their specific contention

that all other properties in dispute are their self acquired

properties and they have got partitioned/ mutated those

properties in their names. Added to the above, during her cross

examination the Plaintiff No.1 has unequivocally admitted that

during his life time her father had not claimed any right in the

properties purchased in the names of her brothers. Thus, the

materials available on record go to show that the Defendant

Nos.2 and 3 are in exclusive possession and enjoyment of all

these properties to the exclusion of other members of their

family.

23. The case papers go to show that during their cross

examination the Plaintiff Nos.1 and 2 have come up some

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statements regarding the source for acquiring these properties.

However, it is to be noted that such statements are not

consistent and not supported by documentary evidence. In one

breath the Plaintiffs have claimed that all these properties were

purchased jointly by their father and brothers. In another breath

they have stated that these properties have been purchased out

of the sale proceeds of a property in the name of their father,

which was sold to J.K. Cement Factory. It is to be noted that the

Plaintiffs or their witness i.e, PW-3 have any information

regarding the other property said to have been possessed by the

propositus, the date of sale, the sale consideration or the

properties purchased out of its sale proceeds. According to the

Plaintiff No.1 her father had sold such property to J.K. Cement

Factory for Rs.20,00,000/-, whereas the Plaintiff No.2 has stated

that it is the Defendant Nos.2 to 4, who sold the property to J.K.

Cement Factory for Rs.40,00,000/-. Thus, it gives an impression

that the Plaintiffs have blindly proceeded to maintain this suit for

partition, without ascertaining basic material facts to sustain

their claim.

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24. It is true that admittedly the propositus namely Sri

Venkappa Maleppa Chanagoudar owned a land bearing

R.S.No.19/1 measuring 4 acre 17 guntas in Ningapur Village,

which is still available for the benefit of the family. However, the

Plaintiffs have not adduced any evidence on record to show that

their family was generating sufficient income from the said land,

which formed nucleus for acquiring the properties in dispute. On

the other hand, it is the definite case of the Defendants No.2 and

3 that it was a barren land and that the income generated from

land bearing R.S. No.19/1 was not sufficient even to meet the

agricultural operation and to pay the land revenue.

25. It is to be noted that during her cross examination

Plaintiff No.1 has admitted each and every contention of

Defendant in toto. It seems under the said circumstances, the

Plaintiff No.2 chose to adduce evidence as PW-2. However, such

an attempt has not helped the Plaintiffs much in the case. It is

the case of Defendants No.2 and 3 that since their childhood

they used to do coolie work and they had own earning by rearing

sheep. This aspect has been clearly admitted by the Plaintiffs.

Further, the description of the parties given in the cause title

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gives an impression that the Plaintiff No.2 is the sixth child of the

propositus and Defendant No.1. As such a reasonable doubt

would arise regarding the competence of Plaintiff No.2 to speak

about the transaction, which had taken place probably during her

childhood.

26. The plaintiffs have produced some revenue

documents such as RORs and Mutation Register extracts before

the trial court, pertaining to the schedule properties. In the

considered view of this Court the entries in these revenue

documents are no way helpful to the Plaintiffs in proving their

case and to draw any presumption regarding availability of joint

family nucleus. Thus, on careful re-appreciation of the oral and

documentary evidence placed on record by the parties to the

suit, this Court of the considered view that the Plaintiffs have

failed to prove their claim of joint ownership over the properties

in dispute and their right to claim share in those properties. For

the forgoing reasons, Point No.1 is answered partly in the

affirmative.

27. Point No.2 : In the result, this Court proceeds to

pass the following :

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                              ORDER

      i)     The appeal is partly allowed.

      ii)    The judgment and decree dated 22.01.2020 passed

in O.S. No.69/2017 by the learned Principal Senior Civil Judge and JMFC, Mudhol is modified by holding that the Plaintiffs and Defendant Nos.1 to 3, 5 and 6 are entitled for 1/7th share each only in two items of Schedule B Properties i.e, the land bearing R.S.No.19/1 measuring 4 acres 11 guntas situated in Ningapur Village and the house bearing VPC No.48 situated in Metagudd Village.