Karnataka High Court
Sonali W/O Subashchandra And Anr vs Sharanappa S/O Tippanna Sunagar And Ors on 26 September, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RFA No. 200066 of 2021
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.200066 OF 2021 (PAR/POS)
BETWEEN:
1. SMT. SONALI W/O SUBASHCHANDRA
(D/O SHARANAPPA SUNAGAR),
AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
R/O. KALABURAGI, TQ. AND DIST. KALABURAGI.
2. VIDHYA W/O AMBARAYAKAMANAMANI,
(D/O SHARANAPPA SUNAGAR),
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O. SHAHAPUR TOWN, TQ. SHAHAPUR,
Digitally signed by
DIST. YADAGIR.
BASALINGAPPA
SHIVARAJ
DHUTTARGAON
Location: HIGH
...APPELLANTS
COURT OF
KARNATAKA
(BY SRI. G.V. CHANDRASHEKHAR, SENIOR COUNSEL FOR
SRI. VINAYAK APTE, ADVOCATE)
AND:
1. SHARANAPPA S/O TIPPANNA SUNAGAR,
AGE: 65 YEARS, OCC: AGRICULTURE AND EX. MLA,
2. SMT. SHAKUNTALA W/O SHARNAPPA SUNGAR,
AGE: 59 YEARS, OCC: AGRICULTURE,
3. SMT. NEELAMMA W/O SHARANAPPA SUNAGAR,
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RFA No. 200066 of 2021
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AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
4. MAHESH S/O SHARANAPPA SUNAGAR,
AGE: 28 YEARS, OCC: AGRICULTURE,
5. PRASHANT S/O SHARANAPPA SUNAGAR,
AGE: 26 YEARS, OCC: AGRICULTURE,
6. MANJULA D/O SHARANAPPA SUNAGAR,
AGE: 24 YEARS, OCC: HOUSEHOLD WORK,
7. LAKKUBAI D/O SHARANAPPA SUNAGAR,
AGE: 21 YEARS, OCC: AGRICULTURE,
ALL ARE R/O. SINDAGI TOWN,
TQ. SINDAGI, DIST. VIJAYAPURA-586 128.
...RESPONDENTS
(BY SRI. AMEET KUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI. G.G. CHAGASHETTI, ADV. FOR R1, R3 TO R7;
R2-SERVED)
THIS RFA IS FILED U/S. 96 OF THE R/W ORDER 41 RULE
1 OF CIVIL PROCEDURE CODE, i) CALL FOR RECORDS. ii) SET
ASIDE THE JUDGMENT AND DECREE DATED 15.02.2021, IN OS
No.66/2018 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE
AND JMFC AT SINDAGI, DISMISSING THE SUIT OF THE
PLAINTIFF AND ALLOW THE APPEAL AND CONSEQUENTLY
DECREE THE SUIT AS AGAINST THE RESPONDENTS. iii)
AWARD COST OF PROCEEDINGS TO APPELLANT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 30.08.2025 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
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RFA No. 200066 of 2021
HC-KAR
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE T.M.NADAF)
This appeal is by the unsuccessful plaintiffs under
Section-96 of CPC, calling in question the judgment and
decree dated 15.02.2021, in Original Suit No.66/2018,
passed by the Additional Senior Civil Judge and JMFC,
Sindagi, at Sindagi, whereby the suit filed by the plaintiffs
came to be dismissed.
2. The parties will be referred to as per their
ranking before the Trial Court for easy reference.
3. A brief outline of facts leading to filing of this
appeal are as under:
As per plaintiff: The appellants are the daughters
of Sharanappa- defendant no. 1 through his first wife
Smt.Shakuntala-defendant No.2. Defendant no.3 is the
second wife of defendant No.1 and defendant nos.4 to 7,
are the sons and daughters of defendant no.1, through his
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second wife. The plaintiffs and defendant Nos.1 and 2
constitute an Undivided Joint Hindu Family and the suit
schedule properties are the ancestral joint family
properties of the parties.
4. The suit properties were acquired by the
defendant no.1, through his father by name Tippanna
Sunagar. The defendant no.1 and his brother Bhimaraya
Sunagar and their mother Murigemma Sunagar have
compromised the matter in the suit bearing
O.S.No.78/2016, where under the suit schedule properties
have fallen to the share of defendant No.1. As such, the
suit properties are the ancestral joint family properties of
the plaintiffs and defendant No.1. After the compromise,
defendant No.1 has purchased the property bearing
Survey No.19/1 in the name of defendant No.3. As such,
the said property is also a joint family property. It is their
further contention that in suit in O.S. No.78/2016, the
plaintiffs were not made as parties. Defendant No.1 has
partitioned the said properties in the compromise which
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has taken place in the above suit along with his brother
and mother, including defendant Nos.4 and 5. As the suit
schedule properties being ancestral joint family properties,
defendant No.1 has no exclusive right over the same. They
have further stated that the compromise entered in
O.S.No.78/2016 is behind their back and without their
knowledge. As such, the same are not binding on the
shares of the plaintiffs, since the plaintiffs are married and
residing with their respective husbands after their
marriage. In the absence of the plaintiffs, the suit was
compromised in O.S.No.78/2016. The plaintiffs after
noticing the same, demanded the defendants to allot their
share, however, defendant No.1 refused to allot their
shares, which made the plaintiffs to approach the trial
Court, by filing a suit in O.S.No.66/2018, claiming their
share i.e., 1/3rd share in the suit schedule properties.
5. In pursuance of the suit summons, the
defendants appeared through their respective counsels
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and defendant No.1 has filed the written statement and
defendant Nos.3 to 7 have adopted the written statement
of defendant No.1. Defendant No.2 who is the mother of
the plaintiffs filed her consent written statement and also
prayed for her legitimate share in the suit schedule
properties. Defendant No.1, in his written statement
specifically denied the case of plaintiffs and stated that the
properties shown in the suit schedule are neither ancestral
nor joint family properties of the plaintiffs and the
defendants. As such, the plaintiffs cannot in law maintain
the suit against him during his life time. The relationship
between the parties are admitted as shown in the
genealogy, however, denied that the plaintiffs have any
right and share in the suit schedule properties. The suit
filed during his lifetime is premature and not maintainable
and liable to be dismissed.
6. It is the further contention of defendant no.1
that his mother Murigewwa, wife of Tippanna Sunnagar,
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out of her earnings had purchased (i) R.S.No.997/1,
measuring 10 acres, situated at Sindagi Town for a
valuable consideration of Rs.2,00,000/-, from its previous
owner under a registered sale deed dated 23.03.2002.
Thereafter, his mother purchased another property (ii)
bearing No.997/2C, measuring 4 acres, under a registered
sale deed, dated 23.03.2002 for a valuable consideration
of Rs.80,000/- and (iii) survey No.997/2A, measuring 5
acres, 08 guntas situated at Sindagi Town, also purchased
by his mother under a registered sale deed, dated
23.03.2002 for a valuable consideration of Rs.1,04,000/-.
(iv) So also the land measuring 4 acres in Survey
No.997/2B, purchased by his mother under a registered
sale dated 23.03.2002 for a valuable consideration of
Rs.80,000/-. In all, the aforesaid four properties were
purchased by his mother on her own and they are the self-
acquired properties of his mother by name Murigewwa. In
these circumstances, the suit claiming partition in the self-
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acquired properties of Murigewwa i.e., grandmother of the
plaintiffs is misconceived in law and liable to be dismissed.
7. It is his further contention that any property
which has been purchased in the name of female becomes
her self-acquired property and such properties in the
hands of female cannot be either ancestral or joint family
properties and plaintiffs have no right to claim shares in
the said properties. It is the further contention of
defendant no. 1, that his mother Smt.Murigewwa, out of
love and affection, thought of making certain
arrangements in respect of her self-acquired properties
stated supra and settled the same in favour of defendant
nos.4 and 5, since they are looking after said Murigewwa.
However, before she could take any action in that regard,
brother of defendant no.1, by name Bhimaraya has
instituted a suit in O.S.No.78 of 2016, before the Civil
Court claiming share in respect of the self-acquired
properties of Smt.Murigewwa along with other lands. Due
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to intervention of friends and elders the matter was settled
and ended in compromise.
8. Smt. Murigewwa with an intention to settle the
properties purchased by her stated supra, in favour of
defendant Nos.1, 4 and 5, in the said compromise
transferred the land bearing survey No.997/1, measuring
4 acres, exclusively in favour of defendant No.1 and
transferred the possession. Further, Smt.Murigewwa
transferred the suit land bearing survey Nos.997/2, 997/3
and 997/4 jointly in her name and in the name of
defendant No.4. As such, the property in survey No.997/1,
is the exclusive and self-acquired property of defendant
No.1 and the lands in survey Nos.997/2, 997/3 and 997/4,
becomes separate properties of defendant Nos.1 and 4. In
these circumstances, the plaintiffs during the lifetime of
defendant No.1 cannot claim any share in the separate
properties as properties stated supra are not ancestral
properties or joint family properties of the plaintiff,
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defendant No.1 and defendant No.4 as such, the suit is
liable to be dismissed as not maintainable.
9. Defendant No.1 further states that the land
bearing survey No.63, measuring 5 acres, 30 guntas
situated at Bandal village, has been purchased by
defendant No.4 out of his own earnings and also with the
financial help from his brother-in-laws and maternal
grandmother under a registered sale deed, dated
27.9.2003 for a valuable consideration of Rs.1,07,000/-.
As such, the said survey No.63, of Bandal village is the
self-acquired property of defendant No.4. Out of love and
affection, defendant No.4 under a oral family
arrangement, transferred the suit land in favour of
defendant No.5 which is evident from M.R. No.H-44/2016-
2017. In these circumstances, defendant No.5 by virtue of
oral family arrangement made by defendant No.4 has
acquired exclusive title, possession and interest over the
land bearing survey No.63 of Bandal Village in Sindagi
taluka. The said land has been confirmed in favour of
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defendant No.5 in compromise decree passed in
O.S.No.78/2016 and accordingly the claim of partition is
the said land is not maintainable and liable to be rejected.
10. It is his further case that defendant No.3 -
Neelamma out of her own earnings and also financial help
lent by her brother, has purchased suit land bearing
Survey No.19/1, measuring 11 acres, 06 guntas situated
at Sindagi town under registered sale deed, dated
12.05.2013, for a valuable consideration of Rs.2,35,000/-.
As such, the same is the self-acquired property of the said
defendant No.3. He has further submitted that in view of
the settled position of law the property standing in the
name of female will become her self-acquired property and
not liable for partition.
11. It is his further contention that since the
plaintiffs did not admit defendant No.3, 4 and 5 either as
members or coparceners of the family, as such, they
cannot claim in law their share in the self-acquired
properties of defendant Nos.3, 4 and 5. The property in
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survey no.19/1 is not the subject matter of suit in
O.S.No.78/2016, as plaintiffs and defendants therein
never treated the said properties as joint family
properties.
12. It is the further contention of defendant No.1
that, his sister by name Gourawwa was married with one
Malkappa. The father of Malkappa by name Ningappa out
of his own earnings and savings has purchased the land
bearing survey Nos.23 + 28, measuring 29 acres, 16
guntas under a registered sale deed, dated 11.10.2003
and it is the self-acquired property of said Ningappa. The
said Ningappa out of love and affection towards defendant
Nos.4 and 5 and also Ashok and Appaji, who are the sons
of Bhimaraya Sunagar, in a oral family arrangement cum-
partition transferred the said lands in favour of defendant
Nos.4, 5, Ashok and Appaji which is evident from
M.R.No.155/2005-2006 and settled the property in their
favour. As such, the said property is neither ancestral nor
joint family property as the defendant No.1 has not
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inherited the said property either through their father or
from their grandfather, or from their great grandfather.
13. In the compromise decree passed in
O.S.No.78/2016, the defendant Nos.4 and 5 and Ashok
and Appaji partitioned the properties into two parts i.e.,
East to West and Southern strip measuring 14 acres, 28
guntas, has been allotted to the share of defendant Nos.4
and 5 and remaining northern area measuring 14 acres,
28 guntas has been jointly allotted to Ashok and Appaji.
14. In the suit bearing O.S.No.78/2016, the lands
stated supra never been treated as the joint family
property, but it has been treated as joint family property
of defendant Nos.4, 5 and Ashok and Appaji, as such, they
are the self-acquired property of the aforesaid defendants
and others and plaintiffs have no pre-existing right in the
suit schedule properties and the same is not amenable for
partition.
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15. It is the further contention of defendant No.1
that his brother by name Bhimaraya is a Class-I contractor
and out of his earnings he has purchased 4 acres of land in
Revenue Survey No.998/2, totally measuring 8 acres
under a registered sale deed dated 23.03.2002, as such it
is the self-acquired property of Bhimaraya. The said
Bhimaraya out of love and affection transferred the
property stated supra in favour of defendant No.4 and 5
under a oral family agreement and partition. As such, the
plaintiffs have no right to claim the partition in the said
properties.
16. So far as the property situated in Survey
No.998/1, and survey No. 998/4 measuring 4 acres
neither belong to him nor the family, as such, the same is
not available for partition. It is the further contention of
defendant No.1 that his father by name Thippanna out of
his own earnings has purchased land bearing Survey
No.810, measuring 23 acres, 12 guntas of Sindagi town
under a registered sale deed and as such it is his self-
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acquired property. In a family arrangement-cum-oral
partition between Thippanna (father of defendant No.1)
and his son Bhimaraya, the land as stated above has been
divided to two strips one on the northern strip measuring
5 acres, allotted to Bhimaraya and Thippana retained
southern Strip measuring 18 acres, 12 guntas.
Subsequently, the property allotted to Bhimraya re-
numbered as Survey 810/1, and property allotted to
Thippana as R.S.No.810/1.
17. In the compromise decree passed in O.S
No.78/2016, eastern strip measuring 2 acres, has been
given to the share of defendant no.1 by Bhimaraya out of
love and affection and retained western strip measuring 3
acres, in R.S. No.810/1, as such, the land stated above is
the self-acquired property of defendant no.1. It is further
contended by defendant no.1 that subsequent to the
demise of Thippanna, defendant no.1, his brother
Bhimraya and his mother Smt.Murigewwa and his sister
succeeded to southern strip measuring 18 acres and 12
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guntas in R.Survey No.810/2. Thereafter, the brother,
sister and mother of defendant no.1 relinquished their
share in the land supra in his favour, as such, the property
becomes individual and independent property of defendant
No.1 and not become either ancestral or joint family
property of the plaintiffs.
18. It is the further contention of defendant no.1
that out of No.810, measuring 23 acres, 12 guntas of
Sindagi town, defendant No.1 has sold 2 acres of land on
the western side in favour of Taluka Gangammathasthra
Samaj Sevas, Sindagi through a registered sale deed dated
09.07.2001. The defendant No.1 has become the President
of said Sangha and is running an education institution in
the said land. The land sold in favour of Sangha supra was
renumbered as Survey No.810/1, measuring 2 acres,
810/2 measuring 5 acres in the name of Bhimaraya and
810/3 measuring 16 acres, 12 guntas in the name of
defendant No.1.
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19. In the compromise decree stated supra, the
land bearing survey No.810/3 measuring 16 acres, 12
guntas has been divided into two strips, western strip
measuring 9 acres, 18 guntas was allotted to Bhimaraya
and Eastern Strip measuring 7 acres, 4 guntas has been
retained by defendant Nos.1 and 4, as such, these
properties stated supra are also not available for partition.
It is the further contention of defendant no.1, that out of
his own earnings and saving, he has purchased land
measuring 5 acres,5 guntas under registered sale deed for
a valuable consideration Rs.7,15,000/- and the said land is
a self-acquired property. In the compromise decree passed
in O.S.No.78/2016 the defendant No.1 out of love and
affection voluntarily transferred an area measuring 4
acres, out of 5 acres, 5 guntas in favor of his brother
Bhimaraya and retained 1 acres, 5 guntas towards west,
as such the suit is not maintainable in respect of this
property also. Thereafter, on 13.02.2007, Sri.Bhimaraya
has filed an application before the Deputy Commissioner,
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Vijayapura seeking to convert the land measuring 4 acres,
18 guntas in survey No.817 situated at Sindagi, which he
had purchased under a registered sale deed, from
agricultural usage to non-agricultural usage. The Deputy
Commissioner after holding an enquiry in terms of law
passed an order dated 12.07.2007 permitting to convert
the land to non-agricultural usage. After the conversion
house sites were formed on the said land, a site shown as
item No.3, in Schedule-AA has been allotted to defendant
no.1 by Bhimaraya under the compromise decree in
O.S.No.17/2016. Sri.Bhimaraya on his own purchased an
area measuring 1 acre in R.S.No.276/1B under a
registered sale deed and got it converted to non-
agricultural land and laid residential sites subsequent to
the order of conversion dated 01.06.2007.
20. Under the compromise decree, the said
Bhimaraya has allotted suit item No.4 in Schedule AA (a
site) in favour of first defendant. The said Bhimaraya out
of his own earning purchased land in R.S. No.1032/1,
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measuring 3 acres, 3 guntas situated in Sindagi Town and
got it converted into non-agricultural purpose and laid
residential sites on the said land. Suit item Nos.1 and 2
carved out of the aforesaid survey numbers were allotted
to defendant no.1 in the compromise decree stated supra.
So also the said Bhimaraya out of his own earnings
acquired suit item No.5 under the sale deed and in the
compromise decree he has transferred the same in favour
of defendant No.1. It is further contended that suit item
No.6 an open space purchased by Bhimraya under sale
deed out of his own earnings. In the compromise decree
stated supra allotted northern ½ portion to defendant No.1
and retained southern ½ portion of the said land. As such,
these properties are separate properties of defendant No.1
and not amenable for partition.
21. Defendant No.1 further contended that land
bearing Survey No.119/A 3B, measuring 37 guntas
situated in Sindagi town, has been relinquished in favour
of defendant No.1, by his father, Merigawwa and brother
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Bhimaraya, on 10.01.1994 under a registered
relinquishment deed. Accordingly, the said property shown
as item Nos.7 and 9 are the separate properties and not
amenable for partition. So far as suit item No.10 and 11
shown in schedule purchased by Bhimaraya out of his own
earnings under registered sale deed and transfer the same
in favour of defendant No.5 in compromise decree. As
such, the said property becomes separate property of
defendant No.5, the plaintiffs have no rights to seek
partition in these two lands.
22. The defendant No.1 further contended that he
has performed the marriage of both the plaintiffs incurring
huge expenditure and in the marriage he has given 35
tholas to plaintiff No.1 and 50 tholas of gold to plaintiff
No.2 and taken care of medical expenses of plaintiff No.1
even after marriage. The suit is filed at the instigation of
ill-wishers of defendant No.1 just to defame him in the
society and the suit filed is a collusive suit between
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plaintiffs and defendant No.2. The defendant no.1 by way
of gift given a car worth of 10,00,000/- to plaintiff No.1
and Rs.12,50,000/- for the purpose of purchasing gold and
also Rs.15 lakhs for hospital. The defendants further
contended that he has purchased 1 plot situated at
Gulbarga worth Rs.30 lakhs and later gifted the same to
the plaintiff no.2. It is the specific case of defendant no.1
the suit is not maintainable as all the suit schedule
properties are the self-acquired properties of defendant
No.1, defendant nos.4 and 5 and Bhimaraya (brother of
defendant No.1) and as such they are not amenable for
partition and they cannot be considered as either joint
family property or ancestral properties and sought to
dismiss the suit with exemplary cost.
23. The defendant nos.3 to 7 have adopted the
written statement filed by defendant no.1. The trial Court
subsequent to completion of pleadings framed the
following issues:
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"1. Whether plaintiffs proves that the suit schedule
properties are ancestral and joint family properties of
themselves and defendants-1 and 2 and they constituted
Hindu undivided joint family?
2. Whether defendant-1 proves that, the suit properties
are self-acquired properties of himself and defendants-4
and 5 as contended in the written statement?
3. Whether defendant-1 proves that suit Sy. No.19/1,
measuring 11 acres is the self-acquired property of
defendant-3 i.e., Neelamma as contended in the written
statement?
4. Whether plaintiffs are entitled for relief/s as prayed in
the suit?
5. What order or decree?"
24. The plaintiffs in order to prove their case was
examined PW-1 and PW-2 and produced 67 documents
marked as Exhibits-P1 to P57. The defendants in support
of their case examined defendant No.1 as DW1 and
produced 26 documents as Exhibits-D1 to D26. The Trial
Court after hearing both the sides proceeded to answer the
issues framed supra, in the following manner:
"Issue-1 - In the negative;
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Issue-2 - In the affirmative;
Issue-3 - In the affirmative;
Issue-4 - In the negative;
Issue-5 - As per final order; for the following"
25. The trial Court was of the opinion that the
plaintiffs have failed to prove that the properties are
ancestral and joint family properties of plaintiffs and
defendant No.1. The reason for the trial Court to answer
the issue No.1 in negative is stated at paragraph Nos.25 to
41. The Trial Court in the said paragraphs has held that
the plaintiffs except relying on the contents of compromise
decree passed in O.S.No.78/2016, absolutely have not
placed any documents before the Court to show that the
suit schedule properties are ancestral and joint family
properties.
26. During the course of the arguments before the
Trial Court, the learned counsel appearing for the plaintiffs
mainly relied on the contents of the compromise decree
passed OS No.78 of 2016 and relied on Exhibit-P4 i.e., the
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compromise petition stated supra, wherein at page No.6,
paragraph No. 2, the parties to the said suit have admitted
that the contents stated in the plaint therein as true, so
also the genealogy. Further, they have admitted that these
properties have come from the family elders, so also
certain properties were purchased out of joint nucleus.
Accordingly, all the properties are joint family properties.
Further, the learned counsel for the plaintiff has submitted
relying on the cross-examination of DW-1 in last paragraph
of page No.2 to contend that DW-1 admitted the
compromise arrived in suit stated supra as true. The Trial
Court has extracted both the contents at paragraph Nos.25
and 26 of its judgment. The contents stated in the said
paragraph, which are in Kannada are extracted hereunder,
for easy reference:
"2. ªÁ¢ ºÁUÀÆ ¥Àw
æ ªÁ¢AiÀÄgÀÄ zÁªÁzÀ ªÁzÀ¥v
À z
Àæ °
À £
è À J¯Áè ¸ÀAUÀwUÀ¼ÀÄ ¤d
Egˀv˻
Û É CAvÁ ªÁ¢ ¥Àw
æ ªÁ¢AiÀÄgÀÄ M¦àPÉƼÀÄîvÁÛg.É ªÀÄvÀÄÛ ªÀA±ÁªÀ½AiÀÄÄ ¸Àj
EgÀÄvÀz
Û É CAvÁ M¦àPÉƼÀÄîvÁÛg.É ªÀÄvÀÄÛ zÁªÁ D¹ÛU¼
À ÀÄ »jAiÀÄjAzÀ §AzÀ D¹ÛU¼
À ÀÄ
ªÀÄvÀÄÛ PÀÆqÀÄ PÀÄlÄA§zÀ zs£
À ¢
À AzÀ PÉ®ªÀÅ D¹ÛU¼
À ÀÄ Rjâ ªÀiÁrzÀ D¹ÛU¼
À ÀÄ J®èªÀÅ
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PÀÆqÀÄ PÀÄlÄA§zÀ D¹ÛU¼
À ÀÄ EgÀÄvÀª
Û É CAvÁ ªÁ¢ ºÁUÀÆ ¥Àw
æ ªÁ¢AiÀÄgÀÄ
M¦àPÉƼÀÄîvÁÛg.É " (in paragraph No.25)
XXX XXX
"............ C¸À®Ä zÁªÁ £ÀA.78/2016 gÀ°è ªÀiÁrPÉÆAqÀ gÁf «µÀAiÀÄUÀ¼ÄÀ ¸Àj
EgÀÄvÀª Û .É ¸Àzj
À zÁªÉAiÀÄ°è ªÁ¢AiÀÄgÀ£ÀÄß ¥ÀPUÀë ÁgÀgÀ£ÁßV ªÀiÁqÀzÉ ªÉÆøÀ¢AzÀ rQæ
ªÀiÁr¹PÉÆArzÉÝÃªÉ JAzÀgÉ ¸ÀjAiÀÄ®è. zÁªÁ¹ÛU¼ À °
À è ºÁUÀÆ gÁf rQæAiÀÄ°è ºÉýgÀĪÀ
D¹ÛU¼ À °À è ªÁ¢AiÀÄjUÉ ¥Á®Ä PÉüÀĪÀ ºÀPÀÄÌ EzÉ JAzÀgÉ ¸ÀjAiÀÄ®è."
(in paragraph No.26)
27. The trial Court has held that except relying on
the contents of the said compromise decree, the plaintiffs
have not produced any other independent evidence to
show that the properties are the joint family properties. It
was further held that the admissions by defendant no.1
regarding the contents of compromise petition in OS
No.78/2016 as true and correct, would not come to their
aid and the same is hit by Section-145 of the Indian
Evidence Act. The reason being that, it is unfair to
contradict a witness by his previous statement without
bringing the statement of the documents to the notice of
the witnesses and affording an opportunity to him to
tender his explanation as to why he had made the previous
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statement or to clear off the point of ambiguity or dispute.
The principles of fairness is embodied in Section-145 of the
Indian Evidence Act, requires that, before the admission
can be proved, the attention of the witnesses must be
drawn to the passage in his statement by which it is
intended to contradict him, as the mandate of Section-145
of the Indian Evidence Act demands that the person who
has been cross-examined on any previous statement to
draw the attention of the witness to the said portion of
admission or statement by which it is intended to
contradict him.
28. The Trial Court further held that in the case on
hand, there is no such attention of witness i.e., DW-1 is
brought to the specific portion of alleged admission
available in Exhibit-P4, as such, the said alleged admission
cannot be taken into consideration and it is not an
admission in the eye of law. Since there is no opportunity
given to DW-1 to tender his explanation as to why he has
made such admission or in order to clear the point of
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ambiguity or dispute. In these circumstances, the trial
Court was of the opinion that except relying on the said
document, no independent evidence has been placed to
prove the properties as ancestral property. The plaintiffs
have failed to discharge the burden cast upon them under
the Evidence Act, to seek any relief before the Court. As
per the provisions on Evidence Act, it is for the plaintiff to
prove his case on his own grounds, by placing independent
evidence, where the document relied by the person
regarding the previous admission creating ambiguity, as to
the status of the property.
29. The trial Court based its reasons on the
judgments submitted on behalf of the defendants and has
held that in terms of the judgments of the Hon'ble Privy
Council, as well as the Hon'ble Apex Court, especially
stated in its paragraph nos. 21, 22 and 23, that it is trite
that the burden is on the person who alleges the existence
of the Hindu Undivided Family to prove the same and the
proof required is not just in respect of jointness of family
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but also with respect to the fact that the property
concerned belongs to Hindu Undivided Family, unless there
is material on record to show that the property is a nucleus
of Joint Hindu Family or that it was purchased through
funds coming out of this nucleus. In the absence of such
evidence, merely on relying on the compromise decree
which is not clear as to the status of property whether it is
joint family or ancestral property in the absence of
independent witness, the plaintiffs have failed to prove
their case.
30. Further at paragraph no.38, the Trial Court has
held that since the plaintiffs have not admitted that the
defendants nos. 4 to 7 as coparceners and joint family
members etc., under such circumstances, the question of
allotting shares in the properties belonging to defendant
nos.3 and 4 would not arise. Since the plaintiff has not
discharged the initial burden cast / shouldered on the
plaintiff regarding the fact that the suit properties are the
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ancestral and joint family properties, the plaintiffs are not
entitled to claim any rights/shares in the said properties.
31. Further, the trial Court has held that in the
absence of discharging the primary initial burden by the
plaintiff, the question of shifting the onus on the
defendants to prove regarding the self-acquisition of the
property would not arise, since the alleged admissions
available in Exhibit-P4 cannot be taken into consideration,
as the same is not proved in accordance with law and
proceeded to hold that in the absence of any admissible
evidence, without any documentary evidence, merely on
the basis of certain admissions stated supra, to prove that
the suit schedule properties are ancestral properties, the
said admission cannot be taken into consideration to hold
that the properties are ancestral properties. In these
circumstances, the plaintiffs have miserably failed to prove
that the suit schedule properties are ancestral joint family
properties so also purchased out of joint family nucleus
and proceeded to dismiss the suit. It is this judgment and
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decree passed by the trial Court is called in question before
this Court.
32. Heard Sri.G.V.Chandrashekhar, learned Senior
Counsel for Sri. Vinayak Apte, learned counsel appearing
for the appellants and Sri.Ameet Kumar Deshpande,
learned Senior Counsel for Sri. G.G. Chagashetti, learned
Counsel for respondent Nos.1, 3 to 7, respondent No.2
though served remained unrepresented.
33. After hearing both the sides on the merits of the
case, the matter was reserved for judgment on 30.08.2025
permitting the learned counsel on both the sides to file
their short submissions and judgments if any, on the
contentions raised. On 01.09.2025, both the parties have
filed the judgments relied on by them, as well as short
submissions.
34. Sri.G.V.Chandrashekhar, learned Senior Counsel
appearing on behalf of the learned counsel for the
appellants, taking us through the judgment and decree, as
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well as the entire material placed before the trial court,
submits that the relationship between the parties are not
in dispute. The father of the defendant No.1 by name
Thippanna, had inherited the property from his ancestors.
The said Thippanna had 2 sons and 6 daughters, including
defendant no.1, Bhagama, Gangubai, Mallamma,
Bhimaraya, Kasturibai and Gauravva. Defendant no. 1 was
the Karta of the family. The brother of defendant no. 1 by
name Bhimaraya filed a suit for partition in OS No.78 of
2016, in respect of the suit schedule properties stated
therein, which includes the suit schedule properties stated
in the present suit. Certain properties were the ancestral
properties and all other properties purchased are out of
nucleus, earned by the family from the ancestral
properties. In the suit in O.S. No. 78 of 2016, there was a
clear admission in the plaint that the suit properties were
inherited from the ancestors and also purchased out of
joint family nucleus. To the said suit the plaintiffs who are
daughters through first wife of defendant no.1 were not
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made as parties. However, the sons through second wife
were made as parties as defendant nos. 12 to 13 in the
said suit. The suit stated supra ended in compromise,
wherein all the parties to the suit have admitted that the
contents stated in the plaint are true and correct,
regarding the status of properties i.e., the properties are
ancestral properties. In the said suit, many of the
properties which are the suit schedule properties in the
present suit, fallen to the share of defendant nos. 1, 4 and
5.
35. In the said suit, the parties have admitted that
the properties were inherited from 'Hiriyaru'. The learned
Senior Counsel, relied on the Mysore University, English to
Kannada Dictionary, Revised Volume-I (A to D) to contend
that 'Hiriyaru' means ancestor. In the extract of the said
Dictionary he has relied on the word 'ancestor', 'ancestral'
and 'ancestry' to contend that they mean in Kannada as
'Hiriya, Hirika, Poorvika, Poorvaja, Hindhinavaru,
Poorvajara, Pithrajitha, Hirige, Vamshaparampare,
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Hirikaru, Poorvakar. The words in the dictionary relied on
are extracted hereunder for easy reference:
"ancestor Då£ï¸É(¹)¸Àg Ö ï £Á. 1. »jAiÀÄ: »jÃPÀ: ¥ÀÆ«ðPÀ: ¥ÀƪÀðd. 2.
ªÀÄÆ® gÀÆ¥À: ºÀ¼A
É iÀÄ gÀÆ¥À: ¥ÀƪÀðgÀÆ¥À: ªÀåQÛ, ªÀ¸ÀÄÛ, ¨sÁªÀ£,É ªÉÆ.ªÀÅUÀ¼À »AzÀt
gÀÆ¥À.
ancestral Då£ï¸É¸ÀÖç¯ï UÀÄ. 1. »A¢£Àªg
À :À ¥ÀƪÀðdgÀ. 2. ¦vÁæfðvÀ(zÀ). 3.
ªÀÄÆ® gÀÆ¥Àz:À DzÀå (gÀÆ¥Àz)À .
ancestry Då£ï¸É(¹)¹Öç £Á. 1. (ªÀÄÄ. PÀİãÀgÀ «ZÁgÀz° À )è ªÀÄ£Év£À :À ºÀ¼ª
À ÉÆgÉ:
PÀÄ®: ªÀA±À: ¸ÀAvÀw: ¦Ã½UÉ: ªÀA±À¥g À A
À ¥Àg.É 2. »jÃPÀgÀÄ: ¥ÀÆ«ðPÀgÄÀ : ¥ÀƪÀðdgÀÄ:
¦vÀȪÀUð
À . 3. ºÀ¼A É iÀÄ ªÀÄ£ÉvÀ£:À ¥ÁæaãÀ ªÀA±À. 4. »A¢£À ZÀjvÉ:æ ¥ÀƪÉðÃwºÁ¸À."
36. Further, he has relied on the same dictionary
stated supra at Revised Volume-II (E to L) wherein
'forefather' is stated in Kannada, which reads as under:
"forefather ¥sÉÆÃgï ¥sÁzÀgï £Á. 1. (¸Á.§ªÀ.zÀ°è ¥Àæ.) (M§â£À vÀAzÉAiÀÄ AiÀiÁ
vÁ¬ÄAiÀÄ) ¥ÀƪÀðd: ¥ÀÆ«ðPÀ: ªÀÄÆ®-¥ÀÄgÀĵÀ. 2. (MAzÀÄ PÀÄlÄA§zÀ AiÀiÁ
PÀÄ®zÀ) »jAiÀÄ: »jÃPÀ: »A¢£À vÀ¯ª
É ÀiÁj£Àª.À "
37. Relying on the said meaning in the dictionary,
the learned Senior Counsel contends that in the plaint, the
plaintiffs have clearly stated that Thippana Suragera i.e.,
father of defendant no. 1 had ancestral properties and out
of nucleus earned through the said properties, other
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properties have been purchased by the family. In the suit
which ended in compromise stated supra i.e., O.S.No.78 of
2016 filed by Bhimaraya against the defendant No.1 and
Murigemma Sunagar and others, there is a clear admission
stating that the properties are ancestral properties.
Though the defendant no.1 in his written statement
contended that all the properties are the self-acquired
properties of the defendant nos. 1, 4 and 5, however, in
view of categorical admission in earlier suit i.e., O.S.No. 78
of 2016, the properties are the ancestral properties,
wherein there is a categorical word used as 'Heriyaru', to
contend that the properties were inherited from 'Hiriyaru'
i.e., ancestors and many of the other properties were
purchased out of joint family business.
38. The defendant no.1 who has been examined as
DW-1 in his cross-examination admitted the contents of
the compromise petition as true. The trial Court has failed
to consider this and erroneously dismissed the suit on the
ground that the admission in the earlier pleadings and the
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admission in the compromise petition have not been
confronted to the witness and same was hit by Section-
145 of Indian Evidence Act. This finding of the trial Court
is erroneous.
39. The finding of the trial Court at paragraph no.
30 of the judgment is against the established principles of
the law laid down by the Hon'ble Apex Court, wherein the
Hon'ble Apex Court, held that - an admission by pleadings
by a party need not be confronted to him in the witness
box and relied on the following judgments:
i) Bharat Singh And Anr vs Bhagirathi1
ii) Union Of India vs Moksh Builders And Financers
Ltd. And Others2
iii) Mrityunjoy Sett(D) By Lrs vs Jadunath Basak (D)
By LRS3
1966 AIR 405
1977 AIR 409
2011 (11) SCC 402
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40. He has further contended that the trial Court
has failed to consider that the words used in O.S.No.78 of
2016 in the plaint as well as compromise petition that the
properties were inherited from 'Hiriyaru', which as per the
dictionary means 'ancestors'. In these circumstances, the
properties are to be construed as 'ancestral properties'. In
the presence of the said admission, the finding of the trial
Court that the contents were not confronted and cannot be
construed as ancestral properties, notwithstanding the
admission is legally not sustainable.
41. In view of the categorical admission in the
compromise petition that the contents stated in the plaint
are true/correct, wherein in the plaint it is clearly stated
that the properties were inherited through their 'Hiriyaru'.
He relied on the contents stated in the plaint in O.S.No.78
of 2016 and stressed on paragraph No.3, wherein the
opening words there is a clear statement that the suit
schedule properties are the properties inherited through
their ancestors and some properties were purchased out of
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the nucleus of the said properties. For easy reference, the
said three lines are extracted as under:
"3. ªÁ¢ ºÁUÀÆ ¥Àw æ ªÁ¢AiÀÄgÀ £ÀqÀÄªÉ »jAiÀÄjAzÀ §AzÀ D¹ÛU¼
À ÄÀ ºÁUÀÆ
¸ÀAAiÀÄÄPÀÛ PÀÄlÄA§zÀ zs£ À ¢
À AzÀ PÉ®ªÀÅ Rjâ ªÀiÁrzÀ D¹ÛU¼
À ÀÆ EzÀÄÝ CªÀÅUÀ¼À
«ªÀgÀ F PɼV À £ÀAvÉ EgÀÄvÀªÛ .É "
42. Further, he has relied on the compromise
petition filed in the suit O.S. No.78/2016 under Order-
XXIII, Rule 3 of CPC, wherein at paragraph no.2 there is a
clear admission admitting that the content stated in the
plaint are true and correct. Further, that the properties
were inherited through their ancestors and some
properties purchased through the nucleus of those
properties inherited by the ancestors. The said paragraph
no.2 of the compromise petition are extracted for easy
reference:
"2. ªÁ¢ ºÁUÀÆ ¥Àw æ ªÁ¢AiÀÄgÀÄ zÁªÁzÀ ªÁzÀ¥v À zÀæ À°£
è À J¯Áè ¸ÀAUÀwUÀ¼ÄÀ ¤d
EgÀÄvÀªÛ É CAvÁ ªÁ¢ ¥Àw æ ªÁ¢AiÀÄgÀÄ M¦àPÉƼÀÄîvÁÛg.É ªÀÄvÀÄÛ ªÀA±ÁªÀ½AiÀÄÄ ¸Àj
EgÀÄvÀzÛ É CAvÁ M¦àPÉƼÀÄîvÁÛg.É ªÀÄvÀÄÛ zÁªÁ D¹ÛU¼ À ÀÄ »jAiÀÄjAzÀ §AzÀ D¹ÛU¼ À ÀÄ
ªÀÄvÀÄÛ PÀÆqÀÄ PÀÄlÄA§zÀ zs£ À À¢AzÀ PÉ®ªÀÅ D¹ÛU¼
À ÀÄ Rjâ ªÀiÁrzÀ D¹ÛUÀ¼ÄÀ J®èªÀÅ
PÀÆqÀÄ PÀÄlÄA§zÀ D¹ÛU¼ À ÀÄ EgÀÄvÀªÛ É CAvÁ ªÁ¢ ºÁUÀÆ ¥Àw æ ªÁ¢AiÀÄgÀÄ
M¦àPÉƼÀÄîvÁÛg.É "
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43. On this the learned Senior counsel rests his
arguments by summing up that the admission in the
pleadings are the best piece of evidence as held by the
Hon'ble Apex Court in catena of judgments. The case set
up by Sharanappa Sunagar in the written statement in
the present suit that none of the properties shown in
the suit schedule are either inherited or purchased out of
nucleus of the properties from ancestors, but the
properties are all self-acquired properties or properties
purchased in the name of Murigewwa, is not sustainable.
44. The suit schedule properties are the properties
shown in the earlier suit, wherein there is a categorical
admission that the suit schedule properties, including the
suit schedule properties in the present suit, have been
described as ancestral properties (Hiriyaru). In these
circumstances, the trial Court fell in error to hold that the
plaintiffs have failed to prove by cogent evidence and
independent evidence, that the suit schedule properties
are the Joint Hindu family properties or ancestral
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properties and the admission on the pleadings would not
come to the aid of the plaintiffs as they were hit by
Section-145 of the Indian Evidence Act. In these
circumstances, the judgment and decree passed by the
trial Court suffers from the legal infirmities and against the
settled position of law declared by the Hon'ble Apex Court
and this Court in catena of judgments and sought to set-
aside the judgment and decree passed by the Trial Court
and decree the suit granting the share of the plaintiffs and
accordingly sought to allow the appeal.
45. Refuting the submissions of learned Senior
Counsel, Sri.Amit Kumar Deshpande learned Senior
Counsel, submits that the judgment of the trial Court is
well-reasoned and does not suffer from any infirmities. He
relied on the Genealogical Tree appended to suit in
O.S.No.78 of 2016 to contend that the Genealogical Tree
starts with Thippanna, father of defendant no. 1 and his
descendants. There is nothing in the suit, i.e., in the plaint
of OS No. 78 of 2016, to suggest that the Tippanna
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inherited properties through his father or forefathers. Since
Tippanna is shown as perpositus in the said genealogy tree
appended to the plaint, the statement in paragraph no.3,
be construed as the properties came through Thippanna
and not from his ancestors, since the suit was filed after
the death of said Thippanna.
46. In the absence of any categorical pleadings
stating that the suit properties came to Thippana through
his ancestors. The properties cannot be construed as
ancestor properties and some properties purchased
through the joint nucleus of the properties inherited from
the ancestors. The word 'Hiriyaru' used in paragraph No.3
be construed as since the Thippana was shown as
propositus and refers to Thippana, since he is the elder
member of the family, consisting of defendant no. 1 and
his brother Bhimraya, who filed suit arraying mother and
other siblings as parties, so also defendant nos.4 and 5
and in the absence of any specific pleading, the word
'Hiriyaru' cannot be stretched to go beyond Thippanna and
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to contend that it resembles ancestors other than
Thippanna.
47. Except the earlier suit documents and extract of
properties, no other independent documentary proof or
oral evidence are produced by the plaintiffs to contend that
these properties were inherited through ancestors i.e.,
Thippanna inherited from his ancestors. The documents
produced are of recent years, and falls short to prove that
the properties are either ancestral or joint family
properties.
48. To base his arguments, the learned Senior
Counsel, Sri.Amith Kumar Deshpande relied on the
judgment of Hon'ble Apex Court in SREENIVASAN
KRISHNA RAO KANGO vs. NARAYANA DEVJI KANGO
AND OTHERS4, to contend that a person who approaches
the Court taking the claim that the properties are the joint
family properties, the burden lies on him to prove that the
1954(1) SCC 544
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properties are the ancestral and joint family properties, by
placing independent evidence. So also, to claim that the
properties were purchased through joint nucleus of the
family. Once, the initial burden casted on the person who
has approached the Court is discharged, then the onus
shifts on the others i.e., other co-parceners who claims the
property as self-acquisition to establish that the same was
acquired without aid of joint family funds or they are the
individual and separate properties.
49. So also, the judgment of the Hon'ble Apex Court
in the case of BHAGWAT SHARAN (DEAD THR.LRS.) vs.
PURUSHOTTAM & OTHERS5, to contend that the burden
is on the person who alleges existence of Hindu Undivided
Family to prove the same and the proof required is more
than the jointness of family, but also requires the property
belongs to Joint Hindu Family, by placing the material on
Civil Appeal No.6875/2008, dtd.03.04.2020
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record to show that the property is the Joint Hindu Family
or that it was purchased through funds of the said nucleus.
50. He further relied on the judgment of learned
Single Judge of HIGH COURT OF JUDICATOR AT
MADRAS IN S.A.NO.1719 OF 2008 AND M.P.NO.1 OF
2008 IN THE CASE OF GOVINDAMMAL AND OTHERS
VS. ANJUGAM AND OTHERS and stressed on paragraph
No.26 of the said judgment wherein the learned Single
Judge after referring to various judgments of Hon'ble Apex
Court, so also referring to The texts of MANU AND
VAJNESWARA COMMENT held that the burden of proof,
lies on the plaintiff to establish the foundational facts to
treat the suit property as joint family property and unless
the burden is discharged, the plaintiffs claim that the suit
property is joint family property cannot be sustained.
51. Relying on the aforesaid judgments, the
learned Senior Counsel, with all vehemence submits that in
the case on hand, except the compromise decree and
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plaint in the said suit, the plaintiffs have not produced any
independent evidence, both oral and documentary, to
prove that the properties inherited through the ancestors
beyond Thippanna. In these circumstances, if the
properties are of Thippanna and inherited by defendant no.
1, after his demise or in an arrangement during his lifetime
allotted to his share they become his individual as well as
self-acquired property under succession as well as the
arrangement made during the lifetime of said Thippana
and are not amenable during his lifetime for partition.
52. The trial Court taking into consideration of all
these material facts minutely discussed the entire case put
forth before it, and with a well-reasoned order dismissed
the suit holding issues against the plaintiffs and in favour
of the defendant no. 1, which does not call for any
interference, accordingly sought to dismiss the appeal.
53. Having heard the learned counsel for the
parties, perused entire appeal papers, as well as the trial
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court record, the points that would arise for our
consideration are as follows:
i) Whether the trial Court is justified in answering
issue No.1 in negative and against the plaintiffs,
regarding the status of suit schedule properties as
ancestral and joint family properties of plaintiff and
defendant nos.1 and 2 and constituted a Hindu
Undivided Family?
ii) Whether the trial Court is justified in answering
Issue Nos. 2 and 3 in affirmative and in favour of
defendant no.1 on the contention of self-accusation
of defendant no.1, 4 and 5 so also, that the
property in Survey No. 19/1, measuring 11 acres, is
the self-acquired property of defendant No.3 -
Neelamma?
iii) Whether the judgment and decree passed by
the trial Court requires any interference at the
hands of this Court?
54. Our answer to the above points for
consideration are as under:
Point No.1 : Partly in Affirmative
Point No.2 : In Negative
Point No.3 : In Affirmative, for the
following:
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REASONS:
Point Nos.1 to 3;
55. All these issues are interlinked to one
another and taken together for discussion, in order to
avoid repetition of facts.
On a short ground, the matter requires to be
disposed of. It is not in dispute that there is a suit in
O.S.No.78 of 2016 filed by the brother of defendant no. 1,
wherein the appellants/plaintiffs were not parties.
However, all the other members of the family were parties.
It is not in dispute that in the suit in O.S.No.78 of 2016,
the properties were described as properties came through
the elders. Since the word used as 'Hiriyaru' and as per the
contentions of learned Senior Counsel Sri.Chandrasekhar,
the same be considered 'ancestors', but in the absence of
any further statement in the suit that the properties were
inherited by the said Thippanna, who has been shown, as
rightly contended by Sri.Amit Kumar Deshpande, as the
propositus in the genealogy appended to the suit. In the
absence of any clear indication regarding that the suit
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schedule properties came to Thippanna through his
ancestors in the earlier suit and mere describing that they
came through their elders i.e., Hiriyaru, cannot be
stretched to an extent that it would be construed as
ancestor and family properties as joint family properties, in
the absence of any independent evidence, both oral as well
as documentary, as contended by Sri.Amit Kumar
Deshpande.
56. The only primary evidence produced by the
plaintiffs before the trial Court are the documents
pertaining to suit O.S.No.78/2016, marked as Exhibits-P1
to P4 i.e., certified copy of order-sheet, plaint, compromise
petition and compromise decree. Except these documents,
all other documents which were produced on behalf of the
plaintiff are all RTC extract and other tax paid receipts of
recent years, those documents falls short to construe that
the properties are the ancestral joint family properties
consisting of plaintiff and defendant no. 1. It is no doubt
true that the words used in the plaint as well as the said
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words are admitted as true in the compromise petition
cannot be construed as the properties are ancestral joint
undivided Hindu family properties. So far as plaintiffs and
defendant no.1 are concerned.
57. It is no doubt true that the properties shown
in the present suit are the suit schedule properties in OS
No. 78 of 2016. Though there are admissions by defendant
no. 1, in his cross-examination that in the suit O/S. No. 78
of 2016, in the compromise petition, the parties to the suit
have admitted that the contents stated in the plaint are
true and correct, so also, the compromise in O.S.No.78,
2016 are true and correct. Further, there is admission that
the statements in the said compromise petition as well as
the claim that the properties are stated to be the
properties came through their Hiriyaru and belongs to joint
family and some of the properties purchased through
earnings of those properties as true. But as rightly
contended by Sri.Deshpande there is nothing in the plaint
to suggest that the said properties were inherited by
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Tippanna through his ancestors to consider the said
admissions.
58. The contentions of Sri.Chandrasekhar that
the admissions given by the defendants No.1 as extracted
supra are to be considered as proof of the documents
produced in the suit, i.e., Exhibits-P1 to P4. We are unable
to accept the argument of Learned Senior Counsel, the
reason being the admissions have to be clear if they are to
be proved against the person making them. In the case on
hand, DW-1 has admitted regarding the contents stated in
plaint as well as in the compromise petition. Even if the
same are taken as admissions, the same would not enure
to the benefit of plaintiff for the reason as contended by
Sri.Amith Kumar Dheshpande, there is nothing to suggest
in the plaint that the properties stated in the schedule to
the plaint in O.S. No. 78 of 2016 were inherited by
Thippana by his ancestors.
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59. In the said suit, a genealogy tree appended
to the plaint shows Thippana as the prepositus and the
word Hiriyaru especially stated in paragraph no. 3 of the
plaint, i.e., the suit schedule properties came to the
plaintiffs and the defendants through their Hiriyaru (elder).
We use the word elders consciously for the reason that
except this word there is nothing in the entire plaint to
show that the properties came from ancestors beyond
Thippana. To put it in other words, there is nothing in the
plaint describing or stating that Thippana has inherited the
properties through his ancestors.
60. In these circumstances, it becomes very
hard to accept the contention of learned Senior Counsel for
the plaintiffs, that the words used in the dictionary placed
by him to contend that the word Hiriyaru be construed as
ancestors. No doubt words used in the dictionary which we
have extracted above gives a meaning for hiriyaru as
ancestor. But in the case on hand, due to ambiguity
created in the earlier suit regarding non-describing of the
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properties inherited by the Thippana through ancestors,
the word hiriyaru cannot be used beyond Thippanna, in the
absence of any independent evidence to show that the
properties did inherited by Thippanna by his ancestors.
61. The documents produced at Exhibit P1 to P4
would not enure to the benefit of the plaintiffs to contend
that the properties are the joint family properties inherited
through their ancestors to contend that these properties
belong to Hindu Undivided Family, consisting of plaintiffs
and defendant no. 1. In these circumstances, we find no
infirmities on the findings of the trial court that the
plaintiffs' reliance on the documents Exhibits-P1 to P4
would not enure to the benefits of the plaintiffs to conclude
that the properties are the ancestor properties, thus does
not suffers from any infirmities. Accordingly, we answer
point no. 1 partly in affirmative.
62. So far as point nos. 2 and 3 are concerned,
there is a categorical averment made in the present suit
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stating that the suit schedule properties are the ancestral
properties of Thippana, i.e., father of defendant no. 1. The
said categorical averment is stated in paragraph no.5 of
the plaint in the present suit for easy reference, we extract
the same, which reads as under:
"5. CzÀÄ ºÉüÀĪÀÅzÉãÉAzÀgÉ, zÁªÁ D¹ÛU¼ À ÀÄ ¥Àwæ ªÁ¢ ¸ÀA.1 EªÀgÀ vÀAzÉAiÀiÁzÀ
w¥ÀàtÚ ¸ÀÄtÚUÁgÀ EªÀgÀ ¦vÁæfðvÀ D¹ÛU¼
À ÀÄ ªÀÄvÀÄÛ CªÀÅUÀ½AzÀ ¸ÀA¥Á¢¹zÀ D¹ÛUÀ¼ÀÄ
EzÀÄÝ,"
The trial Court in the absence of the documents and
only on the contentions of defendant no. 1 that the
properties in the absence of any independent evidence
either oral or documentary, produced by plaintiffs and
defendants proceeded to hold that defendant no. 1 has
proved that the properties are self-acquired properties of
defendant Nos.1, 4, 5 and defendant no. 3 while answering
issue nos. 2 and 3 in favour of defendant no. 1.
63. The plaintiffs proceeded on the entire case
on the basis of the documents, that were produced at
Exhibit-P1 to P4, on the premise that since the properties
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are stated as the properties came through Hiriyaru (elders)
to contend that the properties are the ancestral properties.
64. In the absence of any specific pleadings in
the earlier suit, as stated above, the plaintiffs have not led
any other evidence independently to prove and
substantiate their claim on the suit schedule properties.
The documents produced other than Exhibits- P1 to P4 are
all pertaining to the RTCs of recent years and also the tax
paid receipts of recent years. These documents would not
come to the aid of plaintiffs to prove that the properties
are ancestor joint family properties. The entire case went
on the premise that on the basis of earlier suit which
ended in compromise. But for short of categorical pleading
regarding ancestral properties as the one which is now
stated in the suit, the plaintiffs were not-suited. Since the
rights claimed are in respect of share in the immovable
properties and they are the substantive rights required
proper answers and proper evidence.
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65. Though we find no infirmities, in the finding of
trial Court on Issue No.1 that in the absence of
independent evidence, reliance placed on Exhibit-P1 to P4
would not come to the benefit of plaintiffs. However, the
fact is that except these evidence, the plaintiffs have not
produced any other evidence, to prove their case
independently, as contended by the Senior Counsel, Sri.
Amit Kumar Deshpande. In these circumstances, the
finding given by the trial Court on Issue Nos. 2 and 3 in
favour of the defendant no.1 requires reconsideration,
since the findings are on the basis that the plaintiffs have
not produced any independent evidence.
66. The Trial Court while answering issue No.1,
particularly at paragraph No. 31 reasoned that the
plaintiffs are duty bound to discharge their initial burden to
show that the properties are ancestral and joint family
properties, but the plaintiffs have not placed any iota of
evidence before the court to show that, the suit properties
are ancestral and joint family properties. On the other
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hand, though there is no burden on defendant no. 1 to
show that some of the properties are the self-acquired
properties and some of the properties are the properties of
defendant nos. 3 to 5, they placed documents on record to
discharge their burden and the same establishes that the
properties are not the ancestral properties. Since the
entire case of the plaintiffs went on basing their claim on
earlier suit under the impression that the suit properties
are ancestral properties, they are stated to be came
through their hiriyaru and according to the plaintiffs that
means 'ancestors'. We have already subscribed our view
to that word in the foregoing paragraphs. Since the
plaintiffs have not discharged their initial burden to prove
that the properties are ancestral property by placing other
independent evidence except Exhibits-P1 to P4. Therefore,
it would be reasonable to provide one more opportunity to
the plaintiffs to prove their case independently other than
ExhibitsP1 to P4 by placing cogent evidence to substantiate
their claims that the properties are in fact ancestral
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properties inherited by Thippana through his ancestors to
prove that the properties are Joint Hindu Undivided family
properties and they being the coparceners are entitled for
a share in the property. Since the rights claimed are
substantive rights with respect to immovable properties
and the plaintiffs being the daughters claiming share in the
ancestral properties, contending that the properties
inherited by the father of defendant No.1 through his
ancestors as contended in paragraph no.5 of the plaint
which we have already extracted above. The same requires
reconsideration.
67. The reason for the trial Court to non-suit the
plaintiffs is that there is no evidence except Exhibits-P1 to
P4 to contend the properties are ancestral and they are not
coming to their aid. The reason assigned by the trial Court
that though the said admissions were given by defendant
no. 1 in the cross-examination regarding the documents,
they are hit by Section-145 of the Indian Evidence Act,
since he was not confronted with the contents of the
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document and provided with an opportunity to explain. The
findings of the trial Court on Issue Nos. 2 and 3 in these
circumstances required to be set-aside, by providing an
opportunity to the plaintiffs to prove their case by
independent cogent evidence regarding the status and
nature of the properties to stake claim on the properties as
coparceners.
68. Even the judgments relied on by the learned
counsel appearing for defendant no.1 suggests that the
plaintiffs have to prove their case on independent evidence
regarding the status of the property. Since there is nothing
forthcoming to suggest that the plaintiffs have placed any
evidence except relying on evidence Exhibits-P1 to P4, at
the cost of repetition, the substantive rights in respect of
the immovable properties claimed by the plaintiffs requires
to be answered by the Court. We have already answered
point No.1 partly in affirmative that the plaintiff failed to
prove that the properties are ancestral properties only on
relying Exhibits-P1 to P4, in the absence of any
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independent evidence. As such the claim required to be
considered by providing an opportunity to place evidence
to the status of properties as ancestral.
69. For the foregoing reasons, we proceed to pass
the following:
ORDER
i) The appeal is allowed in part.
ii) The judgment and decree dated 15.02.2021, in
OS No.66/2018 passed by the Additional Senior
Civil Judge And JMFC, Sindagi, is set-aside and
modified.
iii) The matter stands remanded to the trial Court
to afford opportunity to both sides to prove
their respective claims, by placing independent
cogent evidence.
iv) Since the suit is of the year 2018 we direct the
trial Court to dispose off the matter within an
outer limit of one year.
v) The parties are directed to appear before the
Trial Court on 03.11.2025, without expecting
any further notice from the trial Court, except
defendant no. 2, who is served before this Court
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and unrepresented. The trial Court shall issue
notice to defendant no. 2 before the trial Court,
who is respondent No.2 before this court, and
hear and dispose of the matter within one year
from 03.11.2025, by affording sufficient
opportunities to both the sides to prove their
case.
vi) In the facts and circumstances of the case
considering the relationship between the
parties, costs made easy.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(T.M.NADAF)
JUDGE
JJ
CT: AK
