Karnataka High Court
Shantabai W/O Baburao Madkanna And Anr vs Bhagirathi W/O Parmeshwar Kharate And ... on 6 November, 2025
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
-1-
NC: 2025:KHC-K:6603-DB
RFA No. 200084 of 2016
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 06TH DAY OF NOVEMBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE TYAGARAJA N. INAVALLY
REGULAR FIRST APPEAL NO.200084 OF 2016 (PAR)
BETWEEN:
1. SHANTABAI W/O. BABURAO MADKANNA
SINCE DECEASED BY HER LRs i.e.
LRs ARE TRANSPOSED AS RESPONDENT NO.8 AND 9
2. VIJAYALAXMI D/O. KASHINATH SHERIKAR,
SINCE DECEASED BY LRs.
2(A). KASHINATH SHERIKHAR S/O. VITHOBA,
Digitally signed by
VARSHA N AGE: 73 YEARS, OCC: AGRICULTURE,
RASALKAR
Location: HIGH
R/O. DHANAMMA MANDIR, PLOT NO.14A,
COURT OF RAMAN NAGAR, AKKALKOT ROAD,
KARNATAKA
SOLAPUR (MAHARASHTRA) - 413006.
2(B). MHETRE SUGALA KALAPPA,
AGE: 48 YEARS, OCC: HOUSEHOLD WORK,
R/O. 1152, VALSANG SOUTH SOLAPUR,
DIST. SOLAPUR (MAHARASHTRA) - 413006.
2(C). CHILGUNDE RAJESHWARI MADHUKAR,
AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
R/O. 71 RAMAN NAGAR, AKKALKOT ROAD,
SOLAPUR SOUTH (MAHARASHTRA) - 413006.
-2-
NC: 2025:KHC-K:6603-DB
RFA No. 200084 of 2016
HC-KAR
2(D). SAVITA SHAVARU DAHITANE
W/O. SHAVARU DAHITANE,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O. NEAR DHANAMMA MANDIR, PLOT NO.14,
RAMAN AKKALKOT ROAD, SOLAPUR SOUTH,
MIDC SOLAPUR SOUTH,
(MAHARASHTRA) - 413006.
2(E). AMARNATH KASHINATH SHERIKAR,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O. PLOT NO.14A, RAMAN NAGAR,
AKKALKOT ROAD, SOLAPUR SOUTH,
SOLAPUR (MAHARASHTRA) - 413006.
2(F). YOGESH KASHINATH SHERIKAR,
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O. PLOT NO.14A, RAMAN NAGAR,
AKKALKOT ROAD, SOLAPUR SOUTH,
SOLAPUR (MAHARASHTRA) - 413 006.
...APPELLANTS
(BY SRI. ANANTH S. JAHAGIRADAR, ADVOCATE)
AND:
1. BHAGIRATHI W/O. PARMESHWAR KHARATE,
AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
R/O. KHANDAK GALLI, ALAND,
DIST: KALABURAGI - 585302.
2. SHRIMANTH S/O. PARMESHWRA KHARATE,
AGE: 35 YEARS, OCC: SERVICE,
R/O. KHANDAL GALLI, ALAND,
DIST: KALABURAGI - 585302.
3. NANDA D/O. PARMESHWAR KHARATE,
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
R/O. KHANDAL GALLI, ALAND,
DIST: KALABURAGI - 585302.
-3-
NC: 2025:KHC-K:6603-DB
RFA No. 200084 of 2016
HC-KAR
4. ANKUSH W RAJA S/O. PARMESHWAR KHARATE,
AGE: 27 YEARS, OCC: NIL,
R/O. KHANDAL GALLI, ALAND,
DIST: KALABURAGI - 585302.
5. SANTOSH S/O. PARMESHWAR KHARATE,
AGE: 29 YEARS, OCC: NIL,
R/O. KHANDAL GALLI, ALAND,
DIST: KALABURAGI - 585302.
6. SHANKAR S/O. GURULINGAPPA KHARATE,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O. H.NO.5-7-2
SIUATED AT KHANDAK GALLI, ALAND,
DIST: KALABURAGI - 585302.
7. SURYAKANT S/O. GURULINGAPPA KHARATE,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O. H.NO.5-7-2
SIUATED AT KHANDAK GALLI, ALAND,
DIST: KALABURAGI - 585302.
8. SHASHIKANT S/O. BABURAO MUDKANNA
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O. MUDKANNA GALLI,
NEAR BANK OF MAHARASHTRA, OMER,
DIST: DHARASHIV (OSMANABAD),
(MAHARASHTRA STATE) - 413 606.
9. KAMALABAI W/O. SURYAKANTH KHARATE,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O. C/O. SURYAKANTH GURULINGAPPA KHARATE,
H. NO.5-7-2 SITUATED AT KHANDAK GALLI,
ALAND, DIST: KALABURAGI - 585 302.
...RESPONDENTS
(BY SRI. K.M. GHATE, ADV FOR R1 TO R6)
(R7 TO R9 ARE SERVED)
-4-
NC: 2025:KHC-K:6603-DB
RFA No. 200084 of 2016
HC-KAR
THIS RFA IS FILED U/S. 96 OF THE CODE OF CIVIL
PROCEDURE, PRAYING TO A) ALLOW THIS APPEAL BY SETTING
ASIDE THE JUDGMENT AND DECREE DATED 28.04.2016
PASSED BY THE SENIOR CIVIL JUDGE COURT AT ALAND IN OS
NO.49/2011, AND DECREE THE SUIT OF THE PLAINTIFFS AS
PRAYED FOR WITH COSTS.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 15.10.2025 AND COMING ON FOR 'HEARING'
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD
AND
HON'BLE MR. JUSTICE TYAGARAJA N. INAVALLY
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE TYAGARAJA N. INAVALLY)
The appellants being the plaintiffs in the suit in O.S
No. 49/2011 on the file of the Court of Senior Civil Judge,
Aland (hereinafter referred to as 'the Trial Court') have
come up with the present appeal challenging the judgment
decree dated 28.04.2016 passed in the said suit, as the
Trial Court dismissed their suit filed for the relief of
partition and separate possession of their 1/5th share each
in the suit properties which are hereunder:
NC: 2025:KHC-K:6603-DB
HC-KAR
"SCHEDULE OF SUIT PROPERTY
1. Land Sy. No. 433/2 measuring 14 acres 28 guntas with L.R.
of Rs. 13.38
AND
Land Sy.No.432 measuring 29 acres 31 guntas with L.R. of
Rs. 13.24 both situated at Aland which is bounded as
under:
East : Land of Shashikant Koralli
West : Land of Alisaheb Tambak wale
South : Land of Siddappa Kharate
North : Land of Laxman Khanna Naik Rathod
2. House bearing T.M.C No. 5-7-2 situated at Khandak Gaalli,
Aland measuring 37.7" x 42' which is bounded as under
East : Municipal Lane
West : House Kareenabee Mahaladbade
South: Municipal Way
North : House of Mashaq Sab Jawale."
2. The case of the plaintiffs is that they are the
daughters and the defendants No.1 to 3 are the sons of
Gurulingappa Kharate, who died on 19.09.1997 at Aland.
The mother of the plaintiffs and defendants predeceased
their father. The suit properties are ancestral properties.
Gurulingappa was survived by the plaintiffs and
defendants. There are no other legal heirs. After the
marriage, the plaintiffs have been residing in their
respective matrimonial houses. There was no partition in
NC: 2025:KHC-K:6603-DB
HC-KAR
respect of the suit properties by meets and bounds. They
have not forfeited their right/claim in the suit properties.
In view of the amended provision of Hindu Succession Act,
2005 (for short 'the Act'), they are having equal share in
the suit properties, as the suit properties are ancestral
joint family properties. The plaintiffs requested the
defendants to give their share. The plaintiffs along with
the defendants were jointly enjoying the suit properties as
coparceners. But, all of sudden the defendants stopped
providing yield of the suit properties to them and hence,
they requested the defendants to effect partition, to which
the defendants have denied, which resulted in filing of the
suit before the trial Court.
3. The defendants appeared through their counsel.
The defendant No.3 filed the written statement admitting
the case of the plaintiffs and sought for partition and
separate possession of his share in the suit properties.
However, the defendant Nos. 1 and 2 jointly filed written
statement, wherein they admitted the relationship
NC: 2025:KHC-K:6603-DB
HC-KAR
between the plaintiffs and defendants, but they denied
that the plaintiffs are having any share in the suit
properties and they also denied that the plaintiffs are
coparceners having equal share in the suit properties.
Even though the defendants No. 1 and 2 admitted that the
suit properties are ancestral properties, their specific
contention is that the suit properties were already
partitioned among defendants through oral partition and
the property bearing Sy.No.433/2 measuring 6 acres 28
guntas was allotted to the father for his enjoyment till his
death with condition that the said property should be
returned back to the defendants after the death of their
father. However, the defendants No.1 and 2 contended
that if the Trial Court comes to the conclusion that the suit
of the plaintiffs is liable to be decreed, they may be
granted their share in the suit properties by meets and
bounds. Therefore, the defendants No.1 and 2 prayed for
dismissal of the suit with cost of Rs.10,000/-.
NC: 2025:KHC-K:6603-DB
HC-KAR
4. During the pendency of the suit, the defendant
No.1 died and hence, his legal representatives defendants
No.1(a) to 1(e) being the wife and children of defendant
No.1, were brought on record. In support of the case of
the plaintiffs, the plaintiff No.2 got herself examined as
PW1. She filed her affidavit as evidence in chief
examination reiterating the facts averred in the plaint.
Moreover, the plaintiffs have produced two RTC extracts
and tax assessment in respect to the suit properties as per
Exs.P1 to P3. On the other hand, defendant No.1(d) was
examined as DW1 in support of the contention of
defendant No.1 and 2 and also examined one independent
witness by name Billu as DW2.
5. After hearing both the parties and considering
the oral and document evidence on record, the Trial Court
dismissed the suit of plaintiffs coming to the conclusion
that the suit properties are not ancestral properties of the
plaintiffs, which resulted in the plaintiffs approaching this
Court with the present appeal.
NC: 2025:KHC-K:6603-DB
HC-KAR
6. Heard the learned counsel for the
appellants/plaintiffs and the learned counsel for the
respondents/defendants No.1 and 2. Perused the
pleadings of both the parties and also oral and
documentary evidence on record. The point that arise for
our consideration is:
"Whether the plaintiffs have proved that
they are entitled to share in the suit properties
and thereby made out sufficient ground to set
aside the impugned judgment and decree of
the Trial Court as prayed for?"
7. The fact that the plaintiffs and defendants are
sisters and brothers, they being the children of
Gurulingappa Kharate is not in dispute. It is also not in
dispute that the suit properties are standing in the name
of the deceased Gurulingappa Kharate. The contention of
the plaintiffs is that the suit properties are ancestral joint
family properties and they being the coparceners are
- 10 -
NC: 2025:KHC-K:6603-DB
HC-KAR
entitled to equal share along with the defendants in
respect of the suit properties.
8. It is pertinent to note that defendant No.3
admitted the case of the plaintiffs and he has sought for
his share in the suit properties, in case the suit is decreed.
But the defendants No.1 and 2 denied that the plaintiffs
are coparceners in respect of the suit properties. The trial
Court while giving reasoning under the impugned
judgment has come to the conclusion that the plaintiffs
have failed to prove that the suit properties are ancestral
joint family properties and that the suit properties
devolved on their father from their father's father.
However, it is pertinent to note that the trial Court has
failed to take note of the fact that the defendants No.1
and 2 in their written statement unequivocally admitted
that the suit properties are ancestral properties. When
there is admission by defendants No.1 and 2 that the suit
properties are ancestral properties, the question of
plaintiffs proving the said fact does not arise. At this stage,
- 11 -
NC: 2025:KHC-K:6603-DB
HC-KAR
it is relevant to note that the Trial Court has lost sight of
the provision of 58 of the Indian Evidence Act (now
Section 53 of the Bharatiya Sakshya Adhiniyam, 2023),
which reads as follows:
"58. Facts admitted need not be proved.-
No fact needs to be proved in any proceeding
which the parties thereto or their agents agree
to admit at the hearing, or which, before the
hearing, they agree to admit by any writing
under their hands, or which by any rule of
pleading in force at the time they are deemed to
have admitted by their pleadings:
Provided that the Court may, in its discretion,
require the facts admitted to be proved
otherwise than by such admissions."
9. Further, as argued by the learned counsel for
the plaintiffs, even though the Trial Court has come to the
conclusion that the defendants have failed to prove earlier
partition among the defendants in respect of suit
properties, has committed error in dismissing the suit. The
defendants No.1 and 2 produced rough sketch along with
their written statement showing the division of property.
- 12 -
NC: 2025:KHC-K:6603-DB
HC-KAR
But the defendant No.1(d) as DW.1 clearly admitted in his
evidence in cross-examination that there was no partition
of the suit properties in writing. It is also admitted that in
the alleged partition the defendants are not given any
share in the suit properties.
10. The defendants No.1 and 2 examined one
independent witness by name Billu as DW2 to prove the
alleged partition. DW2 filed his affidavit as evidence in
chief-examination, wherein he deposed that "all panchas
divided the land into 9 parts and each defendants were
allowed with 3 parts. We kept hill area nearly 14 acres 31
guntas for grazing etc. jointly for defendants." It is also
the evidence of DW.2 that the father of the plaintiffs by
name Gurulingappa Kharate retained 6 acres 28 guntas of
land for his livelihood during his life, commonly by
defendants. But the DW.2 in his evidence in cross-
examination has clearly deposed that in the alleged
partition, no share was given to the daughters of the
deceased Gurulingappa. If the evidence of DW.2 is taken
- 13 -
NC: 2025:KHC-K:6603-DB
HC-KAR
into consideration, it would be clear that the alleged
partition is only for arrangement among the defendants to
enjoy the properties separately.
11. Further, even though the DW.2 is alleged to be
the pancha of the alleged oral partition, in his evidence in
cross-examination he deposed that he did not know the
daughters of the deceased Gurulingappa. Moreover, in the
cross examination, it is the specific evidence of DW.2 that
he did not have any information about the suit and he
deposed as per the statement as told by the defendant
No.1(d). The relevant portion of the statements is as
follows:
ಾಜು ಾ ೆ ಅಂಕುಶ ಇವರ ೇ ೆ ೕ ೆ ೆ ಾನು ಾ
" ಾಜು
ನು ಯು ೆ ೕ ೆ ಎಂದ ೆ ಸ!.
ಸ! ನನ ೆ ಾ"ೆಯ ಬ ೆ$ ಾವ% ೇ
&ಾ' ಇರುವ%(ಲ* ಸದ! ಾಜು ಾ ೆ ಅಂಕುಶ ರವರ ೇ ೆ
ೕ ೆ ೆ ಾ ನು ಯು ೆ ೕ ೆ ಎಂದ ೆ ಸ!."
ಸ!
12. Raju @ Ankush is the defendant No.1(d) in the
suit. The aforesaid evidence of DW.2 would clearly reveal
- 14 -
NC: 2025:KHC-K:6603-DB
HC-KAR
that he is not aware of the fact regarding the suit
properties and also about the plaintiffs, but he deposed
only as told to him by the defendant No.1(d) who is one of
the legal representatives/legal heirs of deceased defendant
No.1.
13. As observed by the Trial Court in the impugned
judgment, it is true that in the RTC extracts at Exs.P1 and
P2 and the property tax assessment at Ex.P3, there is no
mention that the khata in respect to the suit properties
devolved on Gurulingappa Kharate from his father. But as
per the documents at Exs.P1 and P2, the khata in respect
to the landed properties were mutated in the name of
Gurulingappa as 'Pattedar'.
14. As discussed above, when the defendants No.1
and 2, who are the contesting parties, have admitted in
their written statement that the suit properties are
ancestral properties, the approach of the Trial Court in the
impugned judgment in coming to the conclusion that the
- 15 -
NC: 2025:KHC-K:6603-DB
HC-KAR
plaintiffs have failed to produce any documents to show
that the suit properties are ancestral properties and
thereby dismissing the suit, does not stand for
consideration. Such conclusion falls to the ground on the
facts of the case and also in law.
15. When there is no dispute regarding the
relationship between the plaintiffs and the defendants and
also that the suit properties are ancestral properties, in
view of amended provision of Section 6 of the HS Act, the
plaintiffs being the daughters of the deceased
Gurulingappa Kharate as coparceners are entitled to equal
share along with the defendants, who are the sons of
deceased Gurulingappa Kharate, in the suit properties.
16. Moreover, it is relevant to refer to the provision
of Section 6(1) of the HS Act, which reads as follows:
6. Devolution of interest in co-parcenary
property. -- (1) On and from the
commencement of the Hindu Succession
(Amendment) Act, 2005, in a Joint Hindu family
governed by the Mitakshara law, the daughter
of a coparcener shall,--
- 16 -
NC: 2025:KHC-K:6603-DB
HC-KAR
(a) by birth become a coparcener in her own
right in the same manner as the son;
(b) have the same rights in the coparcenary
property as she would have had if she had
been a son;
(c) be subject to the same liabilities in respect
of the said coparcenary property as that of a
son,
and any reference to a Hindu Mitakshara
coparcener shall be deemed to include a
reference to a daughter of a coparcener:
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.
17. The above referred provision of law would
clearly reveal that unless the defendants prove that there
is any testamentary disposition or alienation of the suit
property or there was partition among the defendants in
writing taken place before 20.12.2004, the plaintiffs being
daughters of the deceased Gurulingappa Kharate, as
coparceners are entitled to equal share in the suit
properties. Hence, the Trial Court has committed error in
- 17 -
NC: 2025:KHC-K:6603-DB
HC-KAR
dismissing the suit of the plaintiffs under the impugned
judgment and decree.
18. For the sake of arguments, even if it is taken
into consideration that the suit properties are not
coparncery property, it is not in dispute that those
properties are belonging to the deceased Gurulingappa
Kharate, who is father of the plaintiffs and the defendants.
It is also not in dispute that the deceased Gurulingappa
died intestate. Hence, on this ground also the plaintiffs
being his daughter are entitled to equal share in the suit
properties.
19. There is absolutely no material forthcoming
from the defendants No.1 and 2 to support the impugned
judgment that the Trial Court has rightly dismissed the
suit of the plaintiffs. Moreover, it is important to note that
even though the Trial Court has rejected the contention of
defendants No.1 and 2 regarding the alleged earlier
partition, the defendants No.1 and 2 have not chosen to
- 18 -
NC: 2025:KHC-K:6603-DB
HC-KAR
file any appeal challenging the finding of the Trial Court on
issue No.3. Therefore, the plaintiffs have clearly made out
sufficient ground to set aside the impugned judgment and
decree in the present appeal as prayed for and they have
proved that they being the coparceners are entitled to
share in the suit properties, those properties being their
coparceners joint family properties.
20. In the result, the appeal deserves to be allowed
and consequently, answering the above point in the
affirmative, we proceed to pass the following:
ORDER
(a) This appeal is hereby allowed.
(b) Consequently, the judgment and decree
dated 28.04.2016 passed in O.S.No.49/2011
on the file of the Court of Senior Civil Judge,
at Aland, is hereby set aside.
(c) The suit of the plaintiff for the relief of
partition is decreed.
- 19 -
NC: 2025:KHC-K:6603-DB
HC-KAR
(d) The plaintiffs are entitled to 1/5th share each
in the suit properties. The defendants No.1
to 3 are entitled to 1/5th share each in the
suit properties.
(e) The preliminary decree for partition shall be
drawn accordingly.
(f) No order as to costs.
Sd/-
(H.T. NARENDRA PRASAD)
JUDGE
Sd/-
(TYAGARAJA N. INAVALLY)
JUDGE
SMP
CT: SB
