Karnataka High Court
Smt. Rajani D/O Shankar Balekundri vs Smt. Sudha W/O Nandakumar Kundri on 10 September, 2025
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RSA No.6042 of 2010
RESERVED ON : 30.08.2025
PRONOUNCED ON : 10.09.2025
IN THE HIGH CCOURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 10TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
REGULAR SECOND APPEAL NO.6042 OF 2010
BETWEEN:
SMT. RAJANI D/O. SHANKAR BALEKUNDRI
W/O. BALACHANDAR MURKUMBI,
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O: BANAVASI ROAD, SIRSI, UTTAR KANNADA.
...APPELLANT
(BY SRI. R.K. KULKARNI, ADVOCATE)
AND:
1. SMT. SUDHA W/O. NANDAKUMAR KUNDRI,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O: TERGAON,
TQ. HALIYAL, DIST. KARWAR.
MALLIKARJUN
RUDRAYYA
KALMATH
2. SRI. PARASHURAM MANOHAR BALEKUNDRI,
AGE: 48 YEARS, OCC: BUSINESS,
Digitally signed by
MALLIKARJUN R/O: TERGAON,
RUDRAYYA
KALMATH TQ. HALIYAL, DIST. UTTAR KANNADA.
Date: 2025.09.11
10:35:52 +0530
...RESPONDENTS
(NOTICE SERVED TO R1;
R2-SERVICE HELD SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
PRAYING TO CALL FOR THE RECORDS AND ALLOW THIS APPEAL
AND SET ASIDE THE JUDGMENT AND DECREE DATED
18.07.2010 MADE IN R.A. NO.98/2007 ON THE FILE OF THE
SENIOR CIVIL JUDGE YELLAPUR SITTING AT HALIYAL
MODIFYING THE JUDGMENT AND DECREE DATED 23.06.2007
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RSA No.6042 of 2010
MADE IN O.S.NO.88/2003 BY THE CIVIL JUDGE JUNIOR
DIVISION HALIYAL, AND TO DECREE THE SUIT AS PRAYED FOR
IN THE INTEREST OF JUSTICE AND EQUITY.
IN THIS REGULAR SECOND APPEAL ARGUMENTS HAVING
BEEN HEARD AND RESERVED ON 30.08.2025 AND COMING ON
FOR "PRONOUNCEMENT OF ORDERS", THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA)
This appeal is against the Judgment and decree dated 23rd
June, 2007 passed in OS No.88 of 2003 by the Civil Judge
(Jr.Dn.), Haliyal (for short "the trial Court"), which is modified by
the learned Senior Civil Judge, Yallapura sitting at Haliyal (for
short "the appellate Court") in RA No.98 of 2007 dated 28th July,
2010, holding that the plaintiff and defendant No.1 are entitled
for equal share in the suit house, excluding front portion of one
room, which is standing in the name of defendant No.2, where
the shop is situated. Being aggrieved by both the Judgments,
the appellant has preferred this appeal.
2. For the sake of convenience, the parties herein are
referred to as per their rank before the trial Court.
3. Brief facts leading to this appeal are that the plaintiff-
Smt. Rajani, d/o Shankar Balekundri, has filed Suit against the
defendants for declaration, partition and separate possession in
respect of the suit properties. It is stated in the plaint that the
original owner of the suit property was one Kallappa
Vaijappanavar who died in the year 1910 leaving behind his wife,
Smt. Yellavva Kallappa Vaijappanavar who also died in the year
1940 leaving behind only daughter Smt. Balabai wife of
Ramakrishna Baalekundri. The said Balabai had three sons, viz.
Vishwanath Ramakrishna Balekundri, Shankar Ramakrishna
Balekundri and Manohar Ramakrishna Balekundri. During the
lifetime, she executed Will dated 1st November, 1936, in favour
of the said Vishwanath Ramakrishna Balekundri, Shankar
Ramakrishna Balekundri and Manohar Ramakrishna Balekundri in
respect of the House properties. The said Vishwanath
Ramakrishna Balekundri has sold his house property to Ragate
family of Thergaon and relocated to Haliyal. As per the Will, the
names of respective persons were entered in the Panchayat
records. The plaintiff and the defendant No.1 jointly acquired
ownership, possession and title over the suit property after the
death of their father-Shankar Ramakrishna Balekundri in the year
1977. Therefore, the plaintiff and defendant No.1 have only half
share each in the suit property. The defendants have no right,
title or interest whatsoever in the suit property and Manohar
Ramakrishna Balekundri, his wife and defendant No.2, have
illegally created documents with the help of Panchayat authorities
in respect of the suit property, which is not binding on the
plaintiff. The defendant No.2, without the consent of plaintiff,
has published false public notice in "Vijaya Sandesh" Kannada
Daily on 01st October, 2003. Hence, the plaintiff is constrained to
file the suit for declaration of her share in the suit property.
4. After issuance of summons, defendant No.1 has not
chosen to appear before the Court and hence was placed ex
parte. Defendant No.2 appeared through Counsel and filed
written statement. The gist of written statement is that
defendant No.2 has admitted the relationship between the
plaintiff and defendant No.2 and categorically denied the Will
dated 1st November, 1936 alleged to have been executed by
Yallavaa Kallappa Vaijappanagar in favour of Vishwanath
Ramakrishna Balekundri, Shankar Ramakrishna Balekundri and
Manohar Ramakrishna Balekundri. While disputing the alleged
Will, the defendant No.2 has stated that the said Will is created
and concocted by the defendant No.1 only to file a false suit
against defendant No.2. The defendant No.2 has denied the
entire allegation made in the plaint. It is further contended that
on 4th April, 1965, partition has taken place between the father of
the plaintiff and defendant No.1-Shankar Ramakrishna
Balekundri; Vishwanath Ramakrishna Balekundri and Manohar
Ramakrishna Balekundri. As per the partition, the house
property bearing No.28 has been allotted to Vishwanath
Ramakrishna Balekundri, the House property bearing No.94 (Old
No.156) of Thergaon Village, i.e. the suit property, is allotted by
the father of the plaintiff and defendant No.1 i.e. Shankar
Ramakrishna Balekundri, by leaving front portion of one room of
the said house. The suit property bearing No.84 (old No.147)
and front portion of the suit property has been allotted to
Manohar Ramakrishna Balekundri. All the properties are
ancestral properties of the plaintiff and defendants. The names
of Vishwanath Ramakrishna Balekundri, Shankar Ramakrishna
Balekundri and Manohar Ramakrishna Balekundri were entered in
the Panchayat records as per the partition deed, and they were in
possession and enjoyment of the respective share. Accordingly,
it was sought for dismissal of the suit.
5. Based on the pleadings, the trial Court framed as many
as six issues. To prove the case, the power of Attorney Holder of
plaintiff got examined as PW1 and marked seven documents as
per Exhibits P1 to P7. On behalf of defendants, two witnesses
were examined as DWs1 and 2 and marked three documents as
Exhibits D1 to D3.
6. Upon hearing arguments of both sides, the trial Court
decreed the suit in part with costs declaring that the plaintiff is
entitled for the relief of partition and separate possession over
the suit property instead of declaration. Plaintiff and defendants
1 and 2 are entitled for one-third share each in the suit property.
Being aggrieved by the said Judgment and decree passed by trial
Court, plaintiff/appellant herein preferred appeal before the
appellate Court in RA No.98 of 2007. Having heard the
arguments of the parties, the first appellate Court allowed the
appeal in part and modified the Judgment and decree passed by
the trial Court, holding that plaintiff and defendant No.1 are
entitled for equal share in the suit house, excluding front portion
of one room which is standing in the name of defendant No.2,
where the shop is situated. Being agreed by the Judgments and
decree passed by the trial Court as well as the appellate Court,
the appellant is before this Court in this Second Appeal.
7. Sri R.K. Kulkarni, the learned Counsel appearing for the
appellant, would submit that the Judgment and decree of both
the Courts are contrary to law, evidence on record and the facts
of the case. He would submit that both the Courts have failed to
appreciate the oral and documentary evidence properly and have
erred in drawing inference. Both the Courts have failed to
consider that the plaintiff is the absolute owner of the suit
property by virtue of the Will executed by late Yallavva Kallappa
Vaijappanavar in favour of Shankar Ramakrishna Balekundri,
under whom the present appellant and respondent No.1 are
claiming as successors. Both the Courts have wrongly considered
Exhibit D3-Partition Deed. Learned Counsel would further submit
that both the Courts held that the Will executed by Yallavva
Kallappa Vaijappanavar dated 01st November 1936, in favour of
her three sons, viz. Vishwanath Ramakrishna Balekundri,,
Shankar Ramakrishna Balekundri and Manohar Ramakrishna
Balekundri, is genuine, legal and valid. It is further submitted
that Exhibit D3-Partition Deed is subsequently made valid and
legal by paying duty and penalty. Therefore, the entries made in
the village Panchayat records on the basis of illegal and invalid
document, cannot give any right to defendant No.2. Hence, he
would submit that the conclusion arrived at by both the Courts is
improper, illegal and against the facts and circumstances of the
case. Both the Courts have failed to consider that the Will
executed by Yallavva Kallappa Vaijappanavar has been produced
in the Court after thirty years and hence it has got genuineness
and presumptive value. The appellate Court has allowed appeal
and decreed the suit partly by excluding the front room/shop in
the suit property that the said portion belongs to respondent
No.2. Both Courts have wrongly considered Exhibit D3-Partition
Deed produced on behalf of respondent No.2. On all these
grounds, it was sought to admit the appeal by framing the
substantial question of law.
8. I have examined the materials placed before me and
gone through the impugned judgments. In paragraph 19 of its
judgment, the first appellate Court has observed as under.
"19. After hearing arguments on both side and on
going through the picadings as well as the documents
produced it is found that the suit property which one of the
house belonging to the original propositor one Vanapanavar,
who died long back in the year 1910 Icaving behind his wife
Smt. Yallawwa who died icaving behind her only one
daughter Smt Balabai W/o Ramakrishna Balekundri, the said
Smt Balabui had three sons viz (1) Vishwanath Ramakrishna
Balckundri (2) Shankar Ramakrishn Balekundri and (3)
Manohar Ramakrishna-Balekundri. During the life time of
Yellawwa, she has excouted a will dated 1.11.1936 in favour
of Shankar Ramakrishbna Balekundri the father of the
plaintiff and defendant No.1. As per the same will she
bequeathed one house property to Vishwanath Ramakrishna
Balckundri, and one more house property to Manohar
Ramakrishna Balckundri. Afier hor death, all these three
persons acquired ownership, title, right in their respective
house properties as per the will. Sri Vishwanath
Ramakrishna Balckundri, subsequently sold his house
property to one Ragate family of Tergaon and came and
settled at Haliyal. As per the will name of the respective
persons are entered and plaintiff and defendant No.l jointly
acquired the ownership possession and title over the suit
property after the death of their father Sri. Shankar
Ramakrishna Balekundri in the year 1977. Therefore the
plaintiff and defendant Nol have only share cach in the suit
property and defendant No.2 has no any right in the suit
property and Manohar Ramakrishna Balekundri and his wife
and defendant No.2 have illegally created some documents
with the help of panchayath authority in respect of the suit
property which is not binding on the plaintiff It is also stated
that defendants without cont consent of the plaintiff have
published a false public notice in Vijaya Sandesh on
1.10.2003. Therefore, the plaintiff has constrained to file this
suit for declaration and also partition based on the cause of
action arose for publication by the defendant Nos: 1 and 2
and court below held that sand publication is made by the
plaintiff and defendant No. 1 only and therefore they have
no any cause of action against their own act. It is pertinent
to note that the 'will' was executed by said Yellawwa in
favour of her three sons said will is not disclosing as to
which property is allotted to whom out of three houses
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belonging to Yellawwa. Therefore on 4.4.1965 a partition has
been taken place in between father of the defendant No.1
Shankar and his two brothers Vishwanath Ramakrishna
Balckundri, Manohar Ramakrishna Balckundri and father of
the defendant No.2 and as per the said partition house
property bearing No.28 has been allotted to Vishwanath
Ramakrishna Balckundri. house property bearing No 94
having its curher No. 156 of Thatchaih which is suit property
is allotted to the father of the plaintiff and defendant No.1 te
Shankar Ramakrishna Balckundri, by leaving a front portion
of one room of the suit house and suit house property
bearing. No.84 which was having carlier No. 147 of Tarchalli
village and front portion of the suit property bearing No.94
has been allotted to Manohar Ramakrishna 10. father of the
defendant No.2 and after the death of father of the
defendant No.2 Manoluar name of his wife is entered in the
records and during her life time she has transferred the said
property in the name of her only son i.e. defendant No.2 and
since then the defendant No.2 has became the absolute
owner of the front portion of one room in the suit property
bearing property No.94. Thus the appellant have given in
possession of their property in view of the said partition and
therefore defendant No.2 is also having a share in the suit
property which was allotted in the said partition. Since the
said partition deed has been admitted in the evidence by
collecting stamp duty by the court and also same has been
proved by the defendant No.2 by examining one of the
important witness as DW 2 who has spoken about the said
partition and in view of this partition it is found that the
plaintiff and defendant No.l have got share in the suit
property bearing property No.94 having equal half share
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leaving front portion of one room in the suit house which
was allotted to the father of the defendant No 2 Sri. Manohar
in the partition 1965 and therm court below ought to have
decreed the suit of the plamtiff by giving καρμική share to
the plaintiff as well as defendant No.1 in the entire house
property No.94 excluding the front portion of one room of
the suit house which is allotted to the father of defendant
No.2 in the sand partition and he hus excrcised his
ownership right over the suit property and this fact is also
made clear at page No.15 of the judgement of the trial court
wherein P.W.I in an unequivocal terms admitted that in the
front room of the sand house there is one shop and said
shop has been leased out by the defendant No.2 to one
Gopi. But he has deposed that he did not know as to
whether the said portion of the house is standing in the
name of the defendant No.2 since 1993 and this portion of
evidence is also reiterated in the judgement at page No.15
and this admission will clearly goes to show that front
portion of suit house wherein there is a shop is in possession
and enjoyment of defendant No.2 through his tenant and his
name is also entered as per the partition deed, House
property No. 147 was allotted along with front portion of this
suit property to the father of the defendant No.2 Manohar
and after his death same was standing in in the name of his
wife Pushpa who has transferred the same in the name of
Defendant No.2. Therefore looking to this document, il is
very clear that the front portion of the suit property which is
one room where the shop is running by one Gopi is allotted
to the father of delendas No 2 and after his death the
defendant No.2 is im possession of the sa therefore the
plaintiff and defendant nol are not only exclusive owners of
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the sand property and therefore court below has rightly
answered SUC No.1 in the negative. Since the name of the
defendant No.2 hus boen got ontcrol in the panchayath
rooord based on the partition being the owner, the coun
below has rightly answered issue No.2 in the negative and
when the plaintiff hus failed to prove the will and defendant
No 2 has succeeded in proving the partition dood as per
partition his father Manohar was allotted front portion of one
room in that case the plaintiff cannot claim half share in the
entire sul property on the contrary the plaintiff and
defendant Nol are entitled for equal share in the remaining
portion of the suit property icaving or excludm front room
portion of the suit house and therefore court below ought to
have decreed the suit awarding equal share to the plaintiff
and defendant Nol Icaving front room which was allotted to
the share of the father of defendant No.2 instead of
decreeing the suit in entirety awarding 1/3td share to the
defendant No.2 also and therefore in the light of the
documentary as well as oral evidence and as per the
admission given by herself it is just and necessary to modify
the decree passed by the court below as observed by me
above. Hence judgement and decree passed by the court
below is perverse and unjust, untenable, and liable to
modified and hence I answer point No. I accordingly."
9. Having observed this, The first appellate Court has
passed the following Order:
"ORDER
Appeal is allowed and judgment and decree
passed by the trial court is modified as under:
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The suit of the plaintiff is decreed in part.
The plaintiff and defendant No.1 are entitled for
equal share in the suit house leaving excluding front
portion of one room which is standing in the name of
the defendant No.2 where the shop is situated.
The parties are directed to bear their own costs.
Draw a modified decree accordingly.
Office is directed to send back the LCR along
with the copy of this judgment immediately."
10. The first appellate Court has properly appreciated the
evidence on record in accordance with law and facts. I do not
find any ground to formulate substantial question of law as
sought for by the appellant. Hence, I proceed to pass the
following:
ORDER
Being devoid of merits, appeal stands dismissed
at the stage of admission itself.
Sd/-
(G BASAVARAJA)
JUDGE
lnn
CT-CMU
