Karnataka High Court
Smt. Kasturibai W/O Iranna Teggihalli vs Smt. Kamalabai W/O Bhimshya Kallur And ... on 25 October, 2025
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RSA No. 7251 of 2013
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.7251 OF 2013 (PAR)
BETWEEN:
SMT. KASTURIBAI W/O IRANNA TEGGIHALLI
AGE: 56 YEARS, OCC: HOUSEHOLD WORK
R/O: ASHOK GOVIND KUTAKANKERI,
AT POST: LALASANGI,
TQ: INDI DIST. BIJAPUR.
...APPELLANT
(BY SRI. D. P. AMBEKAR, ADVOCATE)
AND:
Digitally signed by 1. SMT. KAMALABAI W/O BHIMSHYA KALLUR
NIJAMUDDIN
JAMKHANDI AGE: 51 YEARS, OCC: HOUSEHOLD WORK
Location: HIGH R/O: ASHOK GOVIND KUTAKANKERI,
COURT OF
KARNATAKA AT POST MALABADI
TQ: AFZALPUR, DIST: GULBARGA
2. SMT. VIMALABAI W/O CHANDAPPA NEDALAGI
AGE: 48 YEARS, OCC: HOUSEHOLD WORK
R/O: CHIKKARUGI,
TQ: SINDAGI, DIST: BIJAPUR
3. SMT. SAVITRI W/O SHRIKANT TALAWAR
AGE: 41 YEARS, OCC: HOUSEHOLD WORK
R/O: SINDAGI,
TQ. SINDAGI, DIST. BIJAPUR
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4. BHAGIRATHI W/O BAYALAPPA NELOGIKAR,
(SINCE DECEASED, BY LRS)
A). MAREWWA D/O BAILAPPA WADI
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O: BASANAL, TQ & DIST: KALABURAGI
B) SUKANYA W/O CHIDANAND JAMADAR
AGE: 36 YEARS, OCC: TAILORING & HOUSEHOLD
WORK,
R/O CHINAMGERI, TQ: AFZALPUR, DIST:
KALABURAGI
C) SHANTAWWA W/O SIDDARAM BIRIKALAGI,
AGE: 34 YEARS, OCC: HOUSEHOLD WORK,
R/O: VIJAYAPUR, TQ & DIST: VIJAYAPUR
D) RENUKA W/O PARASHURAM HONAWAD
AGE: 30 YEARS, OCC: HOUSEHOLD WORK,
R/O: VIJAYAPUR, TQ & DIST: VIJAYAPUR
E) NEELAWWA D/O BAILAPPA NELLAGI,
AGE: 28 YEARS, OCC: HOUSEHOLD WORK,
R/O: BASANAL, TQ & DIST: KALABURAGI
F). SANTOSHIMATA W/O GANESH WADI
AGE: 26 YEARS, OCC: HOUSEHOLD WORK,
R/O: WADI, TQ: CHITTAPUR, DIST: KALABURAGI
G) DIVYA W/O PRADEEP MAHARAD
AGE: 24 YEARS, OCC: HOUSEHOLD WORK
R/O: KUMASAGI, TQ: SINDAGI, DIST: VIJAYAPUR
H) VANI W/O MALLIKARJUN MAHARAD
AGE: 22 YEARS, OCC: HOUSEHOLD WORK,
R/O: KUMASAGI, TQ: SINDAGI, DIST: VIJAYAPUR
I) SAIBANNA S/O BAILAPPA NELLAGI
AGE: 20 YEARS, OCC: HOUSEHOLD WORK,
R/O: BASANAL, TQ & DIST: KALABURAGI
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5. SMT. PREMALA W/O SIDDAPPA ALLOLLI
AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
R/O: TAMBA, TQ: INDI, DIST. BIJAPUR
6. SMT. GIRIJABAI W/O ASHOK KUTTANKERI
AGE: 44 YEARS, OCC: HOUSEHOLD WORK,
R/O: TAMBA TQ: INDI, DIST. BIJAPUR
...RESPONDENTS
(BY J. AUGUSTIN, ADVOCATE FOR
R1, R3 & R4 (A) TO R4(I);
NOTICE TO R2, R5, R6 IS SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC, PRAYING TO ALLOW THIS APPEAL
AND SET ASIDE THE JUDGMENT AND DECREE DATED
12.03.2013 PASSED BY THE III ADDL. DISTRICT JUDGE,
BIJAPUR DISMISSING THE R.A.NO.85/2010, AND THEREBY
CONFIRMING THE JUDGMENT AND DECREE DATED 23.04.2010
PASSED BY THE CIVIL JUDGE (SR DN) INDI IN
O.S.NO.160/2007, WITH COST THROUGHOUT AND FURTHER
DISMISS THE SAID O.S.NO.160/2007.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 14.10.2025 COMING ON FOR
'PRONOUNCEMENT OF ORDERS' THIS DAY, THE COURT MADE
THE FOLLOWING;
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
Captioned second appeal is by unsuccessful
defendant no.2, who has questioned the judgment and
decree dated 12.03.2013 passed by the III Addl. District
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Judge, Bijapur in RA No.85/2010, confirming the judgment
and decree dated 23.04.2010 passed by the Civil Judge
(Sr. Dn.), Indi in OS No.160/2007, wherein the plaintiff's
suit seeking relief of partition against her siblings is
decreed by both Courts, thereby granting 1/8th share to
each of the plaintiffs. These concurrent judgments are
under challenge.
2. For the sake of convenience, the parties are
referred to as per their rank before the Trial Court.
3. Family tree is as under:
Shantappa Venkubai
(died 1975) (Deft no.2) (Deft no.1)
(died on 22.03.2013 i.e, after
judgment in R.A. but before filling this
RSA)
Kasturibai Bhagirathibai Kamalabai Vimalabai Premalabai Girijabai Savitribai
(Deft-1) (Deft-3) (Pltff-1) (Pltff -2) (Deft-4) (Deft-5) (Pltff-3)
4. The plaintiffs and defendants Nos.1 to 5 are
daughters of one Shantappa and Smt. Venkubai
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(defendant No.1). The plaintiffs, being three of the
daughters, instituted O.S. No.160/2007 seeking partition
and separate possession of the suit schedule properties,
contending that the same are joint family ancestral
properties. It was asserted that one Awaapaagouda was
the propositus, who had two sons, namely Shivagondappa
and Rayagondappa. The said Rayagondappa died on
17.09.1948, leaving behind a son Awwappa, who
succeeded to the suit schedule properties. Upon the death
of Awwappa, the properties devolved upon the plaintiffs'
father Shantappa, who, according to the plaintiffs,
continued to hold them as joint family properties. It was
therefore contended that the plaintiffs, their mother
(defendant No.1), and the other sisters (defendants Nos.2
to 5) together constitute a coparcenary forming an
undivided joint Hindu family entitled to equal shares in the
suit schedule properties. The Trial Court, on appreciation
of the pleadings and evidence, decreed the suit by
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declaring that each of the plaintiffs is entitled to 1/8th
share in the suit schedule properties.
5. The said decree was challenged by defendant
No.2, along with her mother Venkubai (defendant No.1),
in R.A. No.85/2010, assailing the preliminary decree
passed by the Trial Court. During the pendency of the
appeal, Venkubai died, and defendant No.2 alone
continued to prosecute the appeal. The First Appellate
Court, upon reappreciation of the evidence and findings of
the Trial Court, dismissed the appeal, thereby confirming
the preliminary decree passed in favour of the plaintiffs.
6. Heard the learned counsel appearing for
defendant No.2. There is no representation or contest on
behalf of the plaintiffs.
7. This Court vide order dated 20.01.2015 has
formulated following substantial question of law:
"Whether the Trial Court as well as Appellate
Court have committed any serious error in
interpreting Ex.D-6 as a stale document or it
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confers no right on the defendant and whether the
said document is not a legal document according
to law?"
8. Heard the plaintiff's counsel, perused the
substantial question of law and defense set up by
defendant no.3.
Findings on substantial question of law:
9. Defendant no.2 in her written statement set up
a plea that there was a prior partition in the family on
08.11.2001. Therefore, the Court at first instance framed
issue No.2 and the burden was cast on the defendant no.2
to substantiate that there was a partition on 08.11.2001
and in the said partition plaintiffs have relinquished their
rights in suit schedule properties, in favour of defendant
No.2 by receiving Rs.10,000/- cash each in lieu of their
equivalent shares. The Trial Court upon appreciation of
oral and documentary evidence held that Ex.D-6 is an
unregistered document, purporting to extinguish and
transfer rights in a immovable property. The Trial Court
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therefore answered issue No.2 in the negative and
against defendant no.2 and consequently, plea of prior
partition was held untenable.
10. The short point that needs consideration at the
hands of this Court is as to whether defendant No.2 having
set up a plea of prior partition has led in any rebuttal
evidence to non-suit plaintiffs. Before this Court adverts to
the rebuttal evidence led in by defendant No.2 in order to
answer the substantial question of law framed by this
Court, this Court deems it fit to revisit the principles of
Hindu law on oral relinquishment and oral partition.
11. It is well settled under Hindu law that a
member of coparcenary can, by an unequivocal declaration
of intention, bring about severance of joint status. Such
intention can be expressed even orally and therefore,
under customary Hindu law, an oral partition of joint
property is recognized and is held to be valid.
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12. A coparcenary may also renounce or relinquish
his undivided interest in the coparcenary property. Such
renunciation, if oral and complete is permissible and valid
under classical Hindu law. The effect of such renunciation
is that interest of renouncing coparcenary merges into the
shares of the remaining joint family members, thereby
enlarging their shares by survivorship.
13. The Hon'ble Apex Court in the case of Kale and
others vs. Deputy Director of Consolidation and
Others1 recognized that family arrangement and oral
partition are specifically favoured in law for maintaining
the family peace. The Hon'ble Apex Court observed that
such aguments or partitions may be oral and if reduced
into writing merely to record the past transaction, the
writing does not require registration. Thus, a coparcener
oral relinquishment of his share or an oral partition is
legally valid and can be proved by conduct, possession and
subsequent acts of enjoyment. However, when such a
AIR 1976 SC 807
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relinquishment is reduced into writing, the nature and
language of the document determines whether it requires
registration.
14. Under Section 17(1)(b) of Registration Act,
1908, a non-testamentary instrument which create,
declare, assign, limit or extinguish any right, title or
interest in immovable property of value more than
Rs.100/- must be registered. The Transfer of Property Act,
particularly Sections 5, 6, 9, 54 and 123 contemplates that
transfer of property must be a duly executed and
registered, where the value exceeds Rs.100/-.
15. There are catena of judicial precedents,
distinguishing oral from written relinquishment. In
Roshan Singh and Others vs. Zile Singh and Others2,
the Hon'ble Apex Court categorically held that if a
document purports to create or declare rights in joint
family property, it must be registered. Only when it
AIR 1988 SC 881
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records a past oral partition, it is a mere memorandum not
requiring registration. This view is reaffirmed in
subsequent judgments rendered by the Hon'ble Apex
Court K. Arumuga Velaiah vs P.R. Ramasamy3.
16. In the light of the principles discussed (supra),
in the present case Ex.D-6, though described as a partition
deed, purports to extinguish the plaintiffs' share in the suit
schedule properties and transfer the same in favour of
Defendant no.2. Ex.D-6 does not record oral partition or
arrangement, but itself operates in presenti to declare and
create rights. Hence, Ex.D-6 squarely falls within the
scope of Section 17(1)(b) of Registration Act. Being
unregistered, it cannot be received in evidence to prove
partition or relinquishment. Under Section 49, it cannot
affect the immovable property, nor it can be looked into to
prove prior partition. Moreover, there is no evidence of
oral partition independent of Ex.D-6. Defendant No.2 has
placed heavy reliance on Ex.D-6 and both the Courts have
2022 SCC ONLINE SC 95
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concurrently held that this document, which is in the form
of rebuttal evidence, relied by defendant no. 2 cannot be
looked into for want of registration.
17. In the light of the forgoing observations and
discussions made by this court, the substantial question of
law framed by this Court has to be answered in negative
and against the defendant no.2.
18. In view of the discussion made (supra), this
Court has also taken cognizance of the fact that defendant
no.1/Venkubai is no more. Therefore, in absence of any
testamentary arrangement, the preliminary decree drawn
by the Courts below needs a partial modification. However,
liberty is reserved to plaintiffs to seek modification of the
quantification done by the Court of first instance in FDP
proceedings by filing an appropriate application. If such an
application is filed, the FDP Court shall first modify the
decree and then proceed to pass final decree after
securing feasibility report.
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19. With these observations, this Court passes the
following judgment:
ORDER
Appeal is dismissed.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
NJ
CT:SI
