Karnataka High Court
Revansidda S/O Gulappa Walikar And Ors vs Gulappa S/O Hannappa Walikar And Ors on 26 September, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC-K:5871-DB
RFA No. 200006 of 2014
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF SEPTEMBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE T.M.NADAF
REGULAR FIRST APPEAL NO.200006 OF 2014 (PAR/POS)
BETWEEN:
1. REVANSIDDA S/O GULAPPA WALIKAR,
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O: NAGATHAN,
TQ. AND DIST: BIJAPUR-586 101.
2. SMT. SHARADA W/O SIDDAPPA MYAGERI,
AGE: 22 YEARS, OCC: H.H.WORK,
R/O: TAMBA, TQ: INDI, DIST: BIJAPUR-586 101.
Digitally signed
by 3. HONNAPPA S/O GULAPPA WALIKAR,
BASALINGAPPA AGE: 20 YEARS, OCC: STUDENT,
SHIVARAJ
DHUTTARGAON R/O. NAGATHAN, TQ. AND DIST. BIJAPUR-586 101.
Location: HIGH
COURT OF 4. PARASHURAM S/O GULAPPA WALIKAR,
KARNATAKA
AGE: 18 YEARS, OCC: STUDENT,
R/O. NAGATHAN, TQ. AND DIST. BIJAPUR-586 101.
REPRESENTED BY IS NEXT FRIEND
NATURAL MOTHER APPELLANT NO.6.
5. LAXMIBAI D/O GULAPPA WALIKAR,
AGE: 11 YEARS, OCC: STUDENT,
R/O. NAGATHAN, TQ. AND DIST: BIJAPUR-586 101.
REPRESENTED BY IS NEXT FRIEND
NATURAL MOTHER APPELLANT No.6.
-2-
NC: 2025:KHC-K:5871-DB
RFA No. 200006 of 2014
HC-KAR
6. SMT. MAHADEVI W/O GULAPPA WALIKAR,
AGE: 46 YEARS, OCC: H.H. WORK,
R/O. NAGATHAN, TQ. AND DIST. BIJAPUR-586 101.
...APPELLANTS
(BY SRI. SANTOSH S. NAGARALE AND
SRI. R.S. SIDHAPURKAR, ADVOCATES)
AND:
1. GULAPPA S/O HONNAPPA WALIKAR,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O. NAGATHAN, TQ. AND DIST. BIJAPUR-586 101.
2. ABBA S/O DHULU KHARAT,
AGE: 78 YEARS, OCC: AGRICULTURE,
R/O. KILARDODDI, TQ. AND DIST. BIJAPUR-586 101.
3. GURAPPA S/O ADIVEPPA SARAWAD,
AGE: 43 YEARS, OCC: GOVT. SERVICE,
SERVING AS KANNADA PRIMARY TEACHER,
R/O. INGANAL, TQ. AND DIST. BIJAPUR-586 101.
...RESPONDENTS
(BY SMT. REKHA PATIL, ADVOCATE FOR
SRI G. G. CHAGASHETTI, ADV FOR R3;
V/O DATED 04.03.2016, NOTICE TO R2 IS HELD SUFFICIENT;
R1-SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF C.P.C READ WITH ORDER 41 RULE 1 & 2 OF THE CIVIL
PROCEDURE CODE, PRAYING TO SET ASIDE THE IMPUGNED
JUDGMENT AND DECREE DATED 28.10.2013 PASSED IN
O.S.NO.170/2012 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE BIJAPUR. AND DECREE THE SAID SUIT
FILED BY THE APPELLANTS/PLAINTIFFS IN RESPECT OF
SY.NO.390/4 AND SY.NO.391/4, BY GRANTING 1/7TH SHARE
EACH TO THEM, BY ALLOWING THE ABOVE SAID APPEAL.
-3-
NC: 2025:KHC-K:5871-DB
RFA No. 200006 of 2014
HC-KAR
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 22.08.2025 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
AND
HON'BLE MR. JUSTICE T.M.NADAF
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
This regular first appeal is filed under Section 96 read
with Order 41 Rule 1 and 2 of Code of Civil Procedure (CPC)
challenging the judgment and decree dated 28.10.2013
passed in O.S.No.170/2012 by the III Additional Senior Civil
Judge, Bijapur, rejecting the decree in respect of two items
of properties i.e., R.S.No.390/4 and R.S.No.391/4 and
prayed this Court to decree the suit in respect of rejection of
decree in respect of properties being R.S.No.390/4 and
R.S.No.391/4 by granting 1/7th share.
2. The factual matrix of case of the plaintiffs are
that, when the suit was filed for partition and separation
possession, plaintiff Nos.4 and 5 are minors and plaintiff no.6
is their natural mother and plaintiff Nos.1 and 3 are the sons
NC: 2025:KHC-K:5871-DB
HC-KAR
of Gulappa Walikar and plaintiff No.2 is the daughter of said
Gulappa Walikar.
3. The properties which are morefully described in
Schedule-A are three landed properties and are all ancestral
joint family properties. Defendant No.1 acquired the suit
schedule properties in a family partition between him and his
brothers. Defendant No.1 who is addicted to bad vices, as
such, relationship between plaintiffs and defendant No.1 was
strained. The plaintiffs came to know for the first time that
defendant No.1 has sold suit land bearing R.S.No.390/4
measuring 5 acres 20 guntas and R.S.No.391/4 measuring 6
acres 27 guntas of Nagathan village, in favour of defendant
No.2. Defendant No.2 in turn sold the suit land in favour of
defendant No.3 behind the back of plaintiffs. The said sale
was neither for legal necessity nor for payment of any
antecedent debt, without knowledge and behind the back of
plaintiffs.
4. Defendant No.1 is not the exclusive owner of
above suit schedule properties and those properties are
NC: 2025:KHC-K:5871-DB
HC-KAR
ancestral and irrigated lands. The suit lands are fertile land
and there was no necessity to sell the suit lands. By virtue of
the alleged sale deeds, defendants No.2 and 3 never came in
possession of suit lands and hence, they cannot claim joint
title or possession with plaintiffs.
5. The remedy for defendant Nos.2 and 3 are to
obtain share only a final decree proceedings and to allot a
specific share in respect of the plaintiffs share as they are
having the share only in respect of defendant No.1. It is
contented that sale-deed executed by defendant no.1 in
favour of defendant No.2 and in turn defendant No.2 in
favour of defendant No.3 are not binding on the plaintiffs.
6. Defendant Nos.2 and 3 have got full knowledge
that the lands are ancestral joint family properties. Taking
undue advantage of bad vices of defendant No.1, sale-deeds
were got executed and they are not bona fide purchasers.
The plaintiffs have approached defendant No.1 on
04.05.2012 and requested him to effect partition and
defendant No.1 flatly refused. The plaintiffs No.1 to 5 are
NC: 2025:KHC-K:5871-DB
HC-KAR
coparceners of the family of defendant No.1, plaintiff No.6
being wife of defendant No.1 was entitled to equal share
under Bombay school and therefore they are entitled for
1/7th share each. Hence, prayed this Court for relief of
partition and separate possession of 1/7th share.
7. In pursuance of the suit summons, the
defendants appeared and defendant No.1 who was the
husband of plaintiff No.6 has filed written statement
admitting the averments of the plaint and suit properties are
also ancestral joint family properties of plaintiffs and
defendant No.1. The plaintiffs and defendant No.1
constituted undivided Hindu joint family, because of
difference of opinion relationship is strained between family
members and hence, defendant No.1 is residing separately.
8. It is contended that, defendant No.1 is illiterate,
mild and innocent, he believes suddenly on the persons, who
came into contact with him. Defendant Nos.2 and 3 taking
undue advantage of relationship and innocence of defendant
No.1, obtained the document and the same was bogus sale-
NC: 2025:KHC-K:5871-DB
HC-KAR
deed and obtained the same by fraud, undue influence and
coercion. The defendant No.1 never sold the suit lands to
defendant No.2. The defendant No.1 has no debts to sell the
suit lands. The defendant Nos.2 and 3 never came in
possession of aforesaid two survey numbers. Defendant No.1
supported the case of plaintiffs.
9. Defendant Nos.2 has filed a written statement
denying all averments made in the plaint. Defendant No.2
also adopted the contentions of defendant No.3 in para-2 to
4 of written statement and contended that defendant No.1 is
the karta of Hindu undivided family, but denied the aforesaid
two items of properties which were sold are ancestral joint
family properties.
10. It is contended that defendant No.3 was lawful
owner and he was in possession and enjoyment of aforesaid
lands. Defendant No.3 has purchased the said properties
from defendant No.2. Both the defendants have denied the
fact that defendant No.1 is addicted to bad vices and contend
that defendant No.1 was in a financial difficulty in 2003, that,
NC: 2025:KHC-K:5871-DB
HC-KAR
he was burdened with debts incurred from bank and private
individuals. He was the only person working and earning,
entire burden of maintaining his large family was on him and
being without sufficient income and hence, in order to meet
legal and family necessities, he had sold aforesaid two items
of the properties long back in 2003.
11. It is contended that on all reasonable and
necessary enquiry regarding legal necessity and on
satisfaction, defendant No.2 has negotiated. Defendant No.1
offered the property for sale and agreed for sale
consideration of Rs.1,95,000/-. Hence, sale-deed was
executed. Immediately on execution of the sale-deed,
possession was delivered in favour of defendant No.2.
Defendant No.2 was in possession and enjoyment of the
same till he sold the property in favour of defendant No.3 on
28.12.2005 for the sale consideration of Rs.2,07,000/-.
12. Defendant No.3 has filed written statement
contending that suit is false, frivolous and vexatious to the
knowledge of the plaintiffs. Defendant No.1 actuated with an
NC: 2025:KHC-K:5871-DB
HC-KAR
oblique motive to screw out some money from Defendant
No.3, has set-up the plaintiffs to file false suit. The plaintiffs
are name lenders to this false suit. This was crocked and
fertile brain of the defendant No.1 behind this false initiation
of false litigation initiated through the plaintiffs. There are no
bona fides on the part of the plaintiffs. The plaintiff No.6 has
no right to seek any share. The plaintiffs and defendant No.1
are staying jointly under one roof. Defendant No.1 was the
karta of the family and the very contention that plaintiff
Nos.4 and 5 are under care and necessity of plaintiff No.6 is
absolutely false. The very contention that suit properties are
ancestral joint family properties are also false. It is also
admitted that defendant No.1 is karta of the family and he
had sold the property for legal necessity and contended that
he was in possession of those properties with effect from
28.12.2005. Further denied the very contention that
defendant No.1 was addicted to bad vices and no such
relationship between plaintiffs and defendant No.1 was
strained. The averments that plaintiffs came to know first
time about the sale-deeds recently also cannot be accepted
- 10 -
NC: 2025:KHC-K:5871-DB
HC-KAR
and only in order to meet the family necessity, property was
sold.
13. It is contended that defendant No.1 had borrowed
loan from Grameen Bank and in order to clear the same, he
had sold the property in favour of defendant No.2. Thereafter
defendant No.3 sold the same in favour of defendant No.3.
After purchase, defendant No.3 has effected improvements
in the lands by spending huge amount and only with an
intention to make wrongful gain unjust enrichment, the
present suit is filed. It is also contended that plaintiffs are
not in joint possession and enjoyment and hence, suit is
liable to be dismissed.
14. The Trial Court having considered the plaint
averments as well as the written statement of defendant
Nos.1 to 3 framed the following issues:-
1. Whether the plaintiffs prove that the suit
properties described in para No.3 of the
plaintiffs are the ancestral joint family
property of the plaintiffs and defendant
and they were and are in the joint
- 11 -
NC: 2025:KHC-K:5871-DB
HC-KAR
possession and enjoyment of the same till
today?
2. Whether the plaintiffs prove that without
any family or legal necessities or for
payment of antecedent debt, first
defendant sold suit survey No.390/4 and
391/4 in favour of defendant No.2?
3. Whether the plaintiff proves that
thereafter defendant No.2 has sold suit
lands to defendant No.3 without
knowledge and behind the back of
plaintiffs?
4. Whether defendant No.2 proves that he
has a bonafide purchaser of suit schedule
'A' property from the defendant No.1 and
he has made all reasonable enquiries to
satisfy himself as to the existence of
family or legal necessity?
5. Whether defendant No.2 proves that he
has a bonafide purchaser of suit schedule
'A' property from the defendant No.1 and
he has made all reasonable enquiries to
satisfy himself as to the existence of famiy
or legal necessity?
- 12 -
NC: 2025:KHC-K:5871-DB
HC-KAR
6. Whether suit filed by the plaintiff is within
the period of limitation?
7. Whether the plaintiffs are entitled to relief
sought for?
8. What order or decree?
15. The plaintiffs in order to substantiate the case
examined plaintiff No.6 as P.W-1 and got marked documents
as Ex.P.1 to Ex.P.16. On the other hand, defendant No.1 is
examined as DW-1, defendant Nos.2 and 3 were examined
as DWs-2 and 3 and one witness was examined as DW-4 and
got marked the document Ex.D.1 to Ex.D.4.
16. The Trial Court having considered both oral and
documentary evidence, answered the issue No.1 as
affirmative in coming to the conclusion that suit schedule
properties are ancestral properties, but answered Issue
Nos.2 and 3 as negative in coming to the conclusion that the
plaintiffs have not proved that properties were not sold for
legal necessities and also the sale made by defendant No.2
in favour of defendant No.3 was not within the knowledge of
the plaintiffs and the sale was made behind the back of the
- 13 -
NC: 2025:KHC-K:5871-DB
HC-KAR
plaintiffs. The Trial Court was also answered Issue Nos.4 and
5 as affirmative in coming to the conclusion that defendant
No.2 had purchased the properties as bona fide purchaser
and in turn defendant No.3 also purchased the properties as
bona fide purchaser. Though Trial Court comes to the
conclusion that suit was within time, but granted decree only
in respect of other item of the suit schedule properties and
declined to grant relief in respect of two items of the
properties which have been sold in favour of defendant No.2
and in turn the properties sold in favour of defendant no.3.
17. Being aggrieved by the judgment and decree
partly granting and declining to grant the relief in respect of
two items of the properties which have been sold, the
present first appeal is filed before this Court.
18. The main grounds urged in the appeal by the
appellants are that the conclusion arrived by the Trial Court
is not based on the material available on record and Trial
Court has taken perverse view of the matter and the same is
predetermined with a prejudicial view against the appellants
- 14 -
NC: 2025:KHC-K:5871-DB
HC-KAR
herein which has resulted in miscarriage of justice. The Court
below was not at all justified in rejecting the prayer in
respect of those two items of properties and the material
available on record clearly discloses that DWs-2 and 3 have
categorically admitted in their cross-examination that they
do not know that from whom defendant No.1 had taken
loans for repayment for which he has sold the said two lands
to defendant No.2.
19. The defendants have also not produced any
document to prove that there was a family necessity for
defendant No.1 in order to pay the said loan he had sold two
items of the properties. The Trial Court believed the oral
evidence and dismissed the claim of plaintiffs in respect of
two items of the properties now in appeal. The Trial Court
ought to have considered the relevant admission of DWs-2 to
4 and documentary evidence properly which clearly goes to
show that defendant No.2 and 3 are not the bona fide
purchasers and Trial Court lost its judicious mind and finding
was given as against the admissions, having answered issue
No.1 is affirmative.
- 15 -
NC: 2025:KHC-K:5871-DB
HC-KAR
20. It is also contended by the counsel during the
course of argument that when there is a specific case of the
plaintiffs that defendant No.1 being the head of the family,
without there being any family or legal necessity or for
payment of any antecedent debt, he had sold the properties.
It is also specific case that he was addicted to bad vices such
as drinking alcohol, executed registered sale-deed without
any consideration and that too taking undue advantages of
his illiteracy, purchase was also made against the interest of
the minors. All these aspects were not taken note of by the
Trial Court.
21. The counsel also vehemently contends that the
sale-deed which is produced before the Court also does not
disclose anything about sale was made for legal necessity.
22. The counsel also vehemently contends that the
letter which is relied upon by defendants i.e., Ex.D2 is also
very clear that there was no dues as on the date of execution
of the sale-deed and when such being the case, Trial Court
- 16 -
NC: 2025:KHC-K:5871-DB
HC-KAR
ought not to have declined to grant relief in respect of
properties which were sold.
23. The counsel also vehemently contends that when
there is a clear admission on the part of the witnesses that
they were not aware of any loan either from any institutions
or from private persons ought not to have accepted the case
of the defendants in order to come to the conclusion that
they are bona fide purchasers as no documents to that effect
were placed on record.
24. The counsel would vehemently contend that while
claiming that they are the bona fide purchasers, as to what
enquiry they have made prior to purchase of properties,
nothing was placed on record.
25. The counsel also vehemently contend that Ex.P12
is very clear that property devolves upon the defendant No.1
through a partition along with his brothers. When such being
the case, the very reasoning of the Trial Court is erroneous
in coming to the conclusion that defendant No.2 is a bona
- 17 -
NC: 2025:KHC-K:5871-DB
HC-KAR
fide purchaser and in turn, he sold the property in favour of
defendant No.3.
26. The counsel also vehemently contend that the
witnesses clearly admitted that there is no agreement of sale
prior to the sale-deed and also categorically admitted that
Rs.5,000/- was given as advance for which also there was no
receipt issued by defendant No.1. It is the claim that on the
second day, Rs.1,90,000/- was paid to defendant No.1. The
question of executing the sale-deed does not arise when
there was no documentary proof for having passed the
consideration. All these materials were not taken note of by
the Trial Court while rejecting the claim of the plaintiffs.
Hence, it requires interference of this Court.
27. Per contra, the counsel appearing for the
respondents would vehemently contend that paragraph No.3
of the written statement filed by defendant No.1 is very clear
that it is a collusive suit and defendant No.1 admitted that
the properties are the ancestral properties is only with the
intention to help the plaintiffs.
- 18 -
NC: 2025:KHC-K:5871-DB
HC-KAR
28. The counsel also vehemently contends that the
sale was made in the year 2003, but the suit was filed in
2012. The Trial Court also taken note of the fact that
defendant No.2 in turn sold the property to defendant No.3
and answered issue Nos.4 and 5 as they are the bona fide
purchasers.
29. The counsel would vehemently contend that the
document Ex.D2 is clear that before executing the sale-deed
paid the bank loan and obtained the clearance certificate.
30. The counsel also vehemently contend that when
the sale was made in the year 2003, possession was
delivered in favour of defendant No.2 and defendant No.2
was in possession of the property and consequent upon the
sale made by defendant No.2, defendant No.3 is in
possession of the property. The material also clearly
discloses that the from the date of sale, both defendant
Nos.2 and 3 were in possession and the property was also
sold for the legal necessity by defendant No.1 being the
karta of the family.
- 19 -
NC: 2025:KHC-K:5871-DB
HC-KAR
31. The counsel also vehemently contend that the
material clearly discloses that defendant No.1 availed the
loan from bank and he was under financial constrains in
order to maintain the family since children were pursuing
their education and in order to clear the loan obtained from
the bank, properties were sold.
32. The counsel also vehemently contends that the
kartha can sell ancestral or joint family property for legal
necessity for the benefit of the family. Further contended
that the Trial Court having observed at paragraph No.18 that
since properties came to defendant No.1 in a partition
between him to his brothers and properties succeeded under
Section-8 of Hindu Succession Act, ought have to answered
issue No.1 in negative.
33. In the case on hand, when the sale-deed was
executed in the year 2003, possession was delivered and all
of them are having knowledge that possession was delivered.
When they were not in possession, they cannot claim that
they are in joint possession of the properties, under Issue
- 20 -
NC: 2025:KHC-K:5871-DB
HC-KAR
Nos.4 and 5 that defendant Nos.2 and 3 proved that they are
the bona fide purchasers and hence, sought this Court to
dismiss the appeal.
34. Having heard the learned counsel for the parties,
perused the entire appeal papers, so also the Trial Court
record. The points that arise for our consideration are as
under:
i) Whether Trial Court is justified in answering
the issue No.1 in favour of plaintiffs holding
that the properties are joint family
properties/ancestral properties?
ii) Whether the Trial Court is justified in
answering issue Nos.2, 3, 4 and 5 against the
plaintiffs and in favour of defendant Nos.2 and
3?
iii) Whether any interference at the hands of this
Court is required in the judgment and decree
passed by this trial Court?
35. Both the points for consideration are answered as
follows:
i) Point No.1 : In the negative
- 21 -
NC: 2025:KHC-K:5871-DB
HC-KAR
ii) Point No.2 : In Affirmative
iii) Point No.3 : In Negative for the following
reasons:
REASONS:
36. All the points for consideration are taken up
together in order to avoid repetition of facts. A perusal of the
plaint clearly shows that the plaintiffs have not stated
through whom the father of the plaintiffs inherited the
properties, except stating that the properties came from
their ancestors. The evidence, both oral and documentary
falls short to state the way of inheritance to consider the
claim of the plaintiffs that the properties are ancestral
properties. The documents which were placed on record by
the plaintiffs clearly shows that the brother of the defendant
No.1 (father of plaintiffs) got divided the properties between
themselves and the documents produced clearly shows that
earlier the properties belong to father of defendant No.1 by
name Honnappa and subsequent to his death in the year
1984, the name of defendant No.1 and other LRs came to be
entered in the revenue records, as per Exhibit-P12 in MR
No.6721. Except these documents, there is nothing placed
- 22 -
NC: 2025:KHC-K:5871-DB
HC-KAR
on record to show whether the father of the plaintiffs
inherited the properties through the ancestors. Since the
documents produced falls short to come to the conclusion
that the properties are ancestors properties, on the basis of
the documents produced before the trial Court, what could
be concluded is that the properties belongs to Honnappa
Walikar, who is none other than the father of the defendant
No.1 and grandfather of the plaintiffs. Since the said person
died intestate the properties were inherited by his children
under Section-8 of the Hindu Succession Act, 1956. Under
these circumstances, the properties became individual and
separate properties of defendant No.1 and other direct LRs of
Honnappa.
37. The plaintiffs in their plaint have clearly admitted
that the father was acting as the Kartha of the family and
the properties stated in the suit schedule have been given to
the shares of the defendant No.1, under a family partition
between him and his brothers, for short of documents to
conclude that the documents came from the ancestors, it
becomes hard for us to accept the contentions of the
- 23 -
NC: 2025:KHC-K:5871-DB
HC-KAR
plaintiffs that the properties are ancestral properties wherein
the plaintiffs could claim right as coparceners in the suit
schedule properties.
38. On the basis of the documents produced before the
trial Court what could be concluded is that the properties were
belonging to one Honnappa, father of the defendant No.1 and
subsequent to his death, they devolved upon defendant No.1
and other LRs under Section-8 of Hindu Succession Act. In
these circumstances, the suit in the absence of any material to
show that the properties are ancestral properties of Honappa, is
definitely not maintainable and is hit by Section-8 of Hindu
Succession Act, since the properties in the hands of defendant
No.1 is individual and separate properties and Trial Judge was
under the confusion while considering the matter, since he had
answered issue No.1 in affirmative and while answering other
issues sated that properties came under Section-8 of Hindu
Succession Act.
39. Admittedly, there are sale deeds in favour of
defendant Nos.3 and 4. Defendant No.1 have supported the
case of the plaintiffs that the properties are ancestral properties
- 24 -
NC: 2025:KHC-K:5871-DB
HC-KAR
and defendant No.1 being illiterate and innocent, defendant
no.2 taking advantage of the same, has taken his thumb
impression on the sale deed, without his knowledge However,
except filing the written statement he has not taken any action
under law to substantiate his contentions in the written
statement. In his cross-examination he has clearly admitted
that neither he has filed any complaint against the defendant
Nos. 2 and 3 nor he has filed any proceedings against
defendant No.2.
40. It is on record that the sale deed is of the year
2003 and subsequently a sale deed was executed by defendant
No.2 in favour of defendant No.3 in the year 2005 for a
valuable consideration. The suit is of the year 2012 and the
defendant No.1 had knowledge of the of the entire suit.
Immediately after service of the notice, as he appeared through
the counsel and filed his written statement.
41. As per the contention of defendant No.1 he is not
aware of any sale deed and the same were executed without
his knowledge. The moment he received the summons of the
suit, he has not filed any case challenging the said sale
- 25 -
NC: 2025:KHC-K:5871-DB
HC-KAR
deeds. Under these circumstances as rightly contended by
the learned counsel for the defendant Nos. 2 and 3 and as
has been held by the trial Court, it is nothing but a collusive
suit filed by the plaintiffs, to deprive defendant Nos.2 and 3
of their legal rights under the sale deed, which were intact
till the filing of the suit and thereafter.
42. Though the trial Court has clearly stated at para -
18 of its judgment that since, in view the of specific pleadings
that the property came in partition between the defendant No.1
and his brothers, the same came under Section-8 of the Hindu
Succession Act, and is individual property and once the
property is inherited under Section-8 of the Hindu Succession
Act, it becomes his separate and individual property, however
answered issue No.1 in affirmative holding that the properties
are ancestral joint Hindu family properties these findings are
incongruent and clearly contradictory to one another. A person
can deal with his properties as per his choice which he had
inherited under Section-8 of Hindu Succession Act, being his
separate properties. The defendant no.1 has exercised the
choice of alienating the properties in favour of defendant No.2,
- 26 -
NC: 2025:KHC-K:5871-DB
HC-KAR
now again cannot say and make a claim that the said sale deed
was without his knowledge and is a result of fraud by defendant
No.2, by obtaining his thumb impression on the sale deed,
without his knowledge and properties are ancestral joint family
properties. In these circumstances, in absence of any
documents and proper pleading the plaintiffs have failed to
prove that the suit schedule properties are the ancestral Joint
family properties, however since there is no challenge to
allotment of share, we deem it proper to keep the decree
granted to the extent of other properties in tact. There is one
more reason for us to keep intact, the judgment and decree,
being on the principle/doctrine of 'Tipsy Coachmen' popularly
known as 'right for the wrong reasons'. Though the Trial Court
erred in reasoning but comes to the right conclusion in
rejecting the claim over the properties sold.
43. In the absence of the plaintiffs to discharge the
initial burden cast upon them to prove whether the suit
schedule properties are the ancestral properties, the
plaintiffs are not entitled for any relief in the suit seeking for
- 27 -
NC: 2025:KHC-K:5871-DB
HC-KAR
partition. Our view is strengthened by the principles of
law laid down by the Hon'ble Apex Court in the following
cases:
i) HIGH COURT OF JUDICATOR AT MADRAS IN
S.A.NO 1719/2008 AND M.P.NO. 1/2008 IN
THE CASE OF GOVINDAMMAL AND OTHERS
V/S ANJUGAM AND OTHERS.
ii) SREENIVASAN KRISHNA RAO KANGO V/S
NARAYANA DEVIJI KANGO AND OTHERS 1
iii) BHAGWAT SHARAN (DEAD THR LRS) V/S
PURUSHOTHAM AND OTHERS 2
44. In these circumstance, we find no merit in the
appeal which calls for any interference at the hands of
this Court. Accordingly, we answer the points for
consideration and proceed to pass the following:
1954(1) SCC 544
Civil Appeal No.6875/2008 dated 03.06.2020
- 28 -
NC: 2025:KHC-K:5871-DB
HC-KAR
ORDER
i) The Appeal filed calling in question the
judgment and decree dated 28.10.2013
passed in O.S.No.170/2012 on the file of III
Additional Senior Civil Judge, Bijapur
rejecting the claim of share in suit schedule
properties fails and accordingly the appeal
is dismissed confirming the judgment and
decree of the trial Court.
ii) No order as to costs.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(T.M.NADAF)
Judge
SHS/JJ
List No.: 2 Sl No.: 1,
CT: AK
