[Cites 17, Cited by 0]

Karnataka High Court

Smt.Renuka W/O Prabhu K vs Sri.Shantappa S/O Siddappa on 23 February, 2026

Author: Mohammad Nawaz

Bench: Mohammad Nawaz

                               -1-

                                      RFA NO.100207 OF 2019



IN THE HIGH COURT OF KARNATAKA, AT DHARWAD

 DATED THIS THE 23RD DAY OF FEBRUARY, 2026

                       BEFORE

  THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ

                         AND

    THE HON'BLE MRS JUSTICE GEETHA K.B.

  REGULAR FIRST APPEAL NO.100207 OF 2019

   BETWEEN

   SMT. RENUKA W/O. PRABHU K.,
   AGED ABOUT 51 YEARS,
   R/O. MCC 'B' BLOCK,
   DAVANAGERE.
                                                 ...APPELLANT
   (BY SMT. SURABHI KULKARNI, ADVOCATE)
   AND

   1.    SRI. SHANTAPPA S/O. SIDDAPPA,
         AGED ABOUT 81 YEARS,
         SINCE DECEASED BY HIS LR'S.


   2.    SMT. SUMATI
         W/O. SIDDAPPA CHITTARAGI,
         AGED ABUT 43 YEARS,
         R/O. DOOR NO.79,
         BASAVARAJAPET, DAVANAGERE.


   3.    SAGAR SIDDAPPA CHITTARAGI,
         AGED ABOUT 21 YEARS,
         R/O. DOOR NO.79,
                            -2-

                                   RFA NO.100207 OF 2019



     BASAVARAJAPET, DAVANAGERE.


4.   KUM. RAKSHITHA
     D/O. SIDDAPPA CHITTARAGI,
     AGED ABOUT 16 YEARS,
     R/O. DOOR NO.79,
     BASAVARAJAPET, DAVANAGERE.

     (MINOR R/BY MOTHER &
     NATURAL GUARDIAN I.E. R2)


5.   SMT. MANJUAL
     W/O. BASAVARAJAPPA ANAJI,
     AGED ABOUT 47 YEARS,
     R/O. K.E.B. QUARTERS, HADADI ROAD,
     BEHIND ZILLA PANCHAYAT OFFICE,
     LOKIKERE ROAD, DAVANAGERE-577 044.

     RESPONDENTS NO.2 TO 5
     HAVE BEEN TREATED AS THE LEGAL
     HEIRS OF DECEASED RESPONDENT NO.1

     VIDE ORDER DATED 05.03.2022


6.   SRI. CHANDRASHEKHARAGOUDA
     S/O. GADIGEPPAGOUDA
     AGED ABOUT 73 YEARS,
     R/O. DOOR NO.4487/3,
     WARD NO.2, BEHIND I.B.,
     VIJAYANAGARA EXTENSION,
     ILKAL, TQ: HUNGUND, DIST: BAGALKOTE.


7.   SMT. SANGAMMA
     W/O. SHARANAPPAGOUDA,
     AGED ABOUT 36 YEARS,
     R/O. CHIKKASINGANAGUTTI,
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                                RFA NO.100207 OF 2019



     POST: HIRESINGANAGUTTI,
     TALUK: HUNGUND,
     DISTRICT: BAGALKOTE.


8.   SRI. GADIGEPPA
     W/O. SHARANAPPAGOUDA,
     AGED ABOUT 21 YEARS,
     R/O. CHIKKASINGANAGUTTI,
     POST: HIRESINGANAGUTTI,
     TALUK: HUNGUND,
     DISTRICT: BAGALKOTE.


9.   SMT. NEELAMMA CHANDRASHEKHAR PATEL,
     AGED ABOUT 69 YEARS,
     R/O. DOOR NO.4483/3,
     WARD NO.2, BEHIND I.B.,
     VIJAYANAGARA EXTENSION,
     ILKAL, TQ: HUNGUND,
     DIST: BAGALKOTE.
                                            ...RESPONDENTS
(BY SRI. ANAND R. KOLLI, ADVOCATE FOR R6;
    SRI. S.B. HEBBALLI, ADVOCATE FOR R7-R9;
    NOTICE TO R2, R3, R5 IS SERVED;
    R1 IS DECEASED (APPELLANT AND R2-R5 ARE
    TREATED AS LRS OF DECEASED R1)


    THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF CODE OF CIVIL PROCEDURE PRAYING TO SET-ASIDE THE
JUDGMENT AND DECREE DATED 13.02.2019 PASSED IN
O.S.NO.36/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HUNGUND, IN THE INTEREST OF JUSTICE AND EQUITY.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT    ON   09.02.2026  AND  COMING   ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, DELIVERED THE
FOLLOWING:
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                                      RFA NO.100207 OF 2019



                         CAV JUDGMENT

(PER: THE HON'BLE MRS JUSTICE GEETHA K.B.)

This is the appeal filed under Section 96 of Code of

Civil Procedure, 1908 (for short, 'CPC') by the

plaintiff/appellant challenging the judgment and decree

dated 13.02.2019 passed in O.S.No.36/2016 on the file of

Senior Civil Judge, Hungund (for short, 'Trial Court'),

wherein the suit of plaintiff was dismissed.

2. Parties would be referred with their ranks as they

were before the Trial Court for sake of convenience and

clarity.

3. Plaintiff has filed the suit before Trial Court

praying for partition and separate possession of her 8/100th

share in suit schedule properties by metes and bounds and

to effect final decree by issuance of direction to Tahasildar;

to award mesne profits under Order XII Rule 20 of CPC; for

relief of permanent injunction restraining the defendants

from alienating suit schedule properties by way of sale, gift,

RFA NO.100207 OF 2019

mortgage, Will or lease; for Court costs and for such other

reliefs.

4. The genealogy as narrated by the plaintiff before

the Trial Court is as under:

GENEALOGY

Kotrappagouda Patil Gadigeppagouda

Basavva (1st wife) Iramma(2nd wife) (Died)

Son Sharanappagouda (Died) Shantavva (Died) Chandrashekargouda Wife Sangamma (D-7) Husband (D-6) Shantappa (D-1) Son Gadigeppagouda (D-8)

Renuka Siddappa Manjula (Plf) (Died) (D-5)

+Wife Sumati(D-2) Sagar (D-3) Rakshita (D-4)

5. The case of the plaintiff before Trial Court in

nutshell is that, according to this genealogy, plaintiff is the

granddaughter of Gadigeppagouda Patil and Basavva and

suit schedule properties are ancestral properties of plaintiff

RFA NO.100207 OF 2019

and defendants. Due to difference of opinion between the

original propositus and his first wife-Basavva, their marriage

was dissolved on 20.07.1956. Afterwards, they started

residing separately. But at that time, children of

Gadigeppagouda were not provided with any share in the

suit schedule ancestral joint family properties. After such

divorce, Gadigeppagouda has married Iramma i.e. his

second wife and got a son called Sharanappagouda, who

was also no more in the year 2009 leaving behind his wife

and son i.e. defendants No.7 & 8. Basavva has got two

children i.e. Shantavva and defendant No.6-

Chandrashekargouda. Shantavva died in the year 1977

leaving behind her husband-defendant No.1 and her three

children i.e. plaintiff and defendant No.5 and one Siddappa.

The son of Shantavva i.e., Siddappa died and his wife and

children are defendants No.2 to 4.

6. Plaintiff demanded share in suit schedule

properties, but defendant No.6 refused to give share to

plaintiff. Hence, plaintiff tried to solve the matter through

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well-wishers, but defendant No.6 has not agreed to give

share to plaintiff. Hence, plaintiff has issued legal notice

dated 26.12.2015 to defendants calling upon them to give

legitimate share to plaintiff within 15 days from the date of

receipt of the notice. Even though said notice is served

upon defendants, they have not come forward to give share

to the plaintiff. Hence, the suit for appropriate reliefs.

7. At the time of filing suit, defendant No.4 was

minor. Her mother-natural guardian was placed exparte.

Hence, Court guardian was appointed for defendant No.4.

She has filed written statement, wherein she admitted the

plaint pleadings and prayed for granting a share to

defendant No.4 also.

8. Defendant No.6 filed his written statement,

wherein he admitted the relationship between parties, but

denied all other averments made in the plaint. He further

contended that mother of plaintiff Smt.Shantavva died in

the year 1977. She was born prior to commencement of

Hindu Succession Act, 1956 and Shantavva was not having

RFA NO.100207 OF 2019

any right in the suit schedule properties. Hence, plaintiff

and defendants No.1 to 5 are not having any share in the

suit schedule properties and they cannot pray for partition.

He further contended that out of suit schedule properties

i.e. property No.6/7 was the Stridhana property of Basavva

and she has gifted it to defendant No.6 through a registered

gift deed. Hence, he is the absolute owner of said property.

Hence, prayed for dismissal of suit with costs.

9. After filing the suit, the plaintiff got amended the

suit and included defendant No.9 and also included some of

the schedule properties to both suit 'A' and 'B' schedule.

10. After making such amendments, defendant No.6

has filed additional written statements twice.

11. In the first additional written statement,

defendant No.6 has taken contention that the additional suit

'A' schedule properties bearing Re-Sy.No.40B/B1, 40B/B2,

40B/B3, 40/A4, 40/A5, 40/A6 of Vajjala Village and

property No.71 and 73 of Tondihal Village Panchayat and

suit 'B' schedule property cannot be added in this suit. Re-

RFA NO.100207 OF 2019

Sy.No.40B/B1, 40B/B2, 40B/B3 are the absolute properties

of the wife of defendant No.6-Smt.Neelamma and she has

purchased them under registered sale deed dated

07.09.2010 and she is not party in the suit and hence the

suit is bad for non-joinder of necessary parties.

12. Property No.3070 of Tondihal Village is the

property purchased by defendant No.6 and Siddamma and

thus Siddamma has transferred her right in favour of

defendant No.6 and thus it is his self-acquired property.

Plaintiff or her mother will not have any right, title or

interest in or over this property. Mother of plaintiff died in

the year 1977 and she was born much earlier to

commencement of Hindu Succession Act, 1956. Only to

harass defendant No.6, this suit is filed. Hence, prayed for

dismissal of suit with costs.

13. In the second additional written statement,

defendant No.6 took contention that Re-Sy.No.37/2 situated

at Tangadabylu Village, Re-Sy.No.187 situated at

Nalatawada Village, Re-Sy.Nos.23/1, 22/2A and 22/1 of

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RFA NO.100207 OF 2019

Kamaladinni Village are the self-acquired properties of

defendant No.6. Amongst them, Re-Sy.No.37/2 of

Tangadabaida village and Re-Sy.No.187 of Nalatawada

Village were the Stridhana property of Basamma and she

has gifted those properties to defendant No.9 and through

registered gift deeds and thus, they are absolute properties

of defendant No.9 & 6 respectively. Re-Sy.No.64/3 was the

property of deceased Gadigeppagouda and it was fallen to

the share of defendant No.6 in the partition. Afterwards, in

the partition between defendant No.6 and his son-Veeresh

Chandrashekhar, said property was fallen to the share of his

son and it stands in the name of his son.

14. As far as properties bearing Re-Sy.Nos.23/1,

22/2A and 22/1 of Kamaladinni Village are concerned, they

are the self-acquired properties of defendant No.6, who

purchased them. As far as CTS No.4487/3 is concerned, it is

also the self-acquired property of defendant No.6.

Defendant No.6 has given said property to defendant No.9

in lieu of maintenance and thus she is the absolute owner of

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RFA NO.100207 OF 2019

said property. Plaintiff's mother-Shantavva was having

three children i.e., plaintiff, Manjula and Siddappa. Said

Manjula and Siddappa are not made as parties to the suit.

Without making Veeresh Chandreshekar Patil, in whose

name Sy.No.64/3 is standing, suit is bad and thus suit is

bad for non-joinder of necessary parties. Hence, prayed for

dismissal of suit with costs.

15. Defendants No.7 and 8 have filed memo adopting

the written statement of defendant No.6.

16. Defendant No.9 appeared through her counsel

and filed her written statement, wherein she has taken

contention that Sy.Nos.40B/B1, 40B/B2, 40B/B3 are the

absolute properties of defendant No.6, who purchased them

under registered sale deed dated 07.09.2010 for a sum of

₹.4,73,000/- from Shashikala D/o Veerappa Dharmanthi

and thus they are her absolute properties. Property

No.3070, Plot No.73 and property No.3068, Plot No.71 of

Tondihal Village are the properties of Smt.Siddamma

Basappa Mudenur, the relative of defendant No.9 and she

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RFA NO.100207 OF 2019

purchased it under the registered sale deed from its owner

Mallikarjuna Indaragi and then she transferred it to

defendant No.6 and now defendant No.6 is its absolute

owner. Hence, prayed for dismissal of suit with costs.

17. Based on the above pleadings, the Trial Court

has framed the following issues:

"ISSUES

1. Whether the plaintiff proves that the suit schedule properties are ancestral properties of herself and defendants?

2. Whether the plaintiff is entitled to the relief sought for?

3. What order or decree?"

18. On behalf of plaintiff, plaintiff was examined as

P.W.1 apart from examining a witness as P.W.2 and

marking Exs.P.1 to P.40, closed her side before the Trial

Court. On behalf of defendants No.6 and 9, defendants No.6

and 9 were examined as D.W.1 and D.W.2 respectively

apart from marking Exs.D.1 to D.42 and closed their side

before the trial Court.

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RFA NO.100207 OF 2019

19. After recording evidence of both sides and

hearing arguments of both sides, the learned Trial Court has

dismissed the suit of plaintiff on the ground that plaintiff

has not placed any sufficient material to establish that

except Item Nos.1 to 4 of 'A' schedule properties, the other

properties were purchased out of joint family income and

failed to prove that there was no partition amongst the

sharers in respect of ancestral Item Nos.1 to 4 of 'A'

schedule properties and thus she is not entitled for any

share in the suit schedule properties.

20. Aggrieved by the said judgment and decree,

plaintiff/appellant has preferred the present appeal.

21. In this appeal, plaintiff has filed I.A.No.1/2026

under Order VI Rule 17 of CPC to permit the plaintiff to

amend the plaint paragraph Nos.6 and 7 and also to insert

the prayers, which reads as under:

"SCHEDULE FOR AMENDMENT

i. To insert the following paragraph after paragraph No.6

"Para 6A: It appears that the Defendant No.6, husband of Defendant No.7, Iramma W/o Gadigeppagouda and

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RFA NO.100207 OF 2019

Ninganagouda S/o Kotreppagouda (brother of Gadigeppagouda) have allegedly partitioned the ancestral family properties in 1997 among themselves behind the back of this Plaintiff. It is submitted that the same is bogus, unequitable and not binding on the Plaintiff".

ii. To insert the following paragraph after paragraph No.7

"Para 7A: Late Basavva has allegedly executed several gift deeds in favour of Deffendants No.6 and 9 and the same are bogus, void and not binding on this Plaintiff".

iii. To insert the following Prayers after Prayer (a) as under:

"(aa). If this Court comes to the conclusion that oral partition took place in the year 1997, the same shall be set aside as being unequitable and not binding on this Plaintiff".

"(aaa). To set aside the gift deeds executed by Late Basavva dated 24.07.2008 in favour of Defendant No.9, dated 15.11.2012 in favour of Defendant No.6, and dated 16.12.2016 by Defendant No.6 in favour of Defendant No.9 as void and not binding on this Plaintiff".

22. In the affidavit annexed to this I.A.No.1/2026,

the appellant/plaintiff has stated she has filed the suit for

partition and separate possession. Respondents No.4, 6 and

9 appeared and filed their written statements, wherein

respondent No.6 has contended that plaintiff is not entitled

for partition. The Trial Court dismissed the suit holding that

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plaintiff failed to prove that suit schedule properties are

joint family properties and in view of her alleged admission

regarding oral partition that had taken place in the family;

there is no pleading in the written statement of defendants

about prior partition. The mutation entry is produced

affecting partition. Therefore, the plaintiff had no occasion

to deny those facts. Even presuming that partition had

taken place, it is inequitable and not binding on the plaintiff

since no share was given to the mother of plaintiff at that

time. The proposed amendment will not change the nature

of the suit and is necessary for effective adjudication.

Respondents have alleged about the gift deeds executed by

Smt.Basamma in favour of defendants No.6 and 9, which

are not binding on the plaintiff. Hence, prayed for allowing

I.A.No.1/2026.

23. Learned counsel for respondents-defendants

No.6 and 9 has filed objections to this I.A.No.1/2026 stating

that the proposed amendment as sought by the plaintiff is

not at all maintainable at this stage. The plaintiff has given

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a categorical admission about oral partition that had taken

place in the year 1997 and it is within her knowledge. The

proposed amendment is completely without any legal basis

and even without the amendment, the appeal could be

maintainable. The plaintiff has sought amendment in the

prayer and prayed for the additional reliefs, which are in the

nature of declarations. Hence, the nature of suit would be

changed if the plaintiff is allowed to amend the plaint.

24. Learned counsel for respondents-defendants

No.6 and 9 further contended that as per Order VI Rule 17

of CPC, before commencement of the trial, the amendment

shall be made. In the instant case, the amendment is

prayed only after passing of the judgment and decree by

the Trial Court. Hence, it is against the principles of law.

Hence, prayed for dismissal of I.A.No.1/2026 with costs.

25. Heard arguments of both sides on main appeal

and also on I.A.No.1/2026.

26. Learned counsel for appellant Smt.Surabhi

Kulkarni would submit that the relationship between the

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RFA NO.100207 OF 2019

parties is not disputed. Thus, according to this relationship,

plaintiff is the granddaughter of original propositus

Gadigeppagouda and his first wife Smt.Basavva i.e., she is

the daughter of Gadigeppagouda and Basavva's daughter

Smt. Shanthvva. During 1977 her mother died and thus

plaintiff being the daughter of Shantavva is entitled for

partition in the suit schedule ancestral and joint family

properties.

27. Learned counsel for appellant would further

submit that out of suit schedule properties, item Nos.1 to 4,

13 and 16 of suit 'A' schedule properties are admittedly the

ancestral properties of the original propositus

Gadigeppagouda. The total extent of these properties is 23

acres 24 guntas. So, item Nos.5 to 10 of suit 'A' schedule

properties were purchased in the name of defendant No.9

who is a housewife having no other source of income and

hence they were also purchased out of joint family income.

Item Nos.11 and 12 are gifted by Basavva i.e.,

grandmother of plaintiff in favour of defendant Nos.9 and 6

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RFA NO.100207 OF 2019

respectively. However, she had no absolute right to gift

these properties. Item Nos.14 and 15 of suit 'A' schedule

properties are purchased in the name of defendant No.6.

Admittedly, there was sufficient nucleus to purchase these

properties. Totally, 24 acres 37 guntas were standing in the

name of Basavva and 23 acres 24 guntas were standing in

the name of Gadigeppagouda. Hence, there was sufficient

nucleus to purchase these scheduled properties. Item No.1

of suit 'B' schedule properties was purchased in the name of

Basavva; Item No.3 & 4 of suit 'B' schedule properties were

purchased in the name of defendant No.6 and Item No.2 of

suit 'B' schedule property was purchased in the name of

sister of defendant No.7. However, without giving any share

to plaintiff, only to deprive plaintiff and other children of

Smt.Shantavva, these properties were gifted by Basavva to

defendant Nos.6 and 9 and some of the properties are

purchased in the names of defendant Nos.6 and 9.

However, plaintiff has got share in all these properties.

Furthermore, defendant Nos. 6 to 9 only in the evidence

have produced the alleged mutation register extract,

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alleging that there was partition between defendant No.6

and husband of defendant No.7- Sharanappagouda, who is

the son of Gadigeppagouda through second wife; only after

giving divorce to first wife, Gadigeppagouda married

Iramma. There was alleged partition amongst defendant

No.6 and Sharanappagouda which is not binding on the

share of plaintiffs because, it is inequitable partition and no

share is given to plaintiff. Without any pleading regarding

prior partition, the trial Court came to the conclusion only

based on stray admission of plaintiff that there was partition

in the year 1997 between defendant No.6 and

Sharanappagouda. Furthermore, as discussed above, there

were some gift deeds to defendant Nos.6 and 9 which are

not binding on the share of plaintiff. Hence plaintiff intends

to amend the plaint cause title.

28. Learned counsel for plaintiff totally relied upon 8

citations.

29. Learned counsel for plaintiff would submit that

any amount of evidence without pleading has no value in

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the eye of law because there is no pleading about prior

partition. In this regard, learned counsel for plaintiff relied

on the judgment of Hon'ble Apex Court in the case of

Srinivas Raghavendrarao Desai(Dead) by LRs Vs.

Kumar Vamanrao alias Alok and others, reported in

2024 SCC Online SC 226.

30. Learned counsel for appellant would further

contended that there is no proper pleading about how

defendant Nos.6 and 9 have acquired some of the suit 'A'

and 'B' schedule properties. In the absence of such pleading

and proof, the finding of trial court that those properties are

self-acquired properties of defendant Nos.6 and 9 is

incorrect. In this regard, she relied on the judgment of

Hon'ble Apex Court in the case of D.S.Lakshmaiah and

Another Vs. L.Balasubramanyam and another reported

in (2003) 10 SCC 310.

31. Learned counsel for the appellant would further

submit that the alleged oral partition between defendant

No.6 and Sharanappagouda does not come into effect.

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There is no document produced to show that based on this

alleged mutation entry, properties are mutated into the

respective names of defendant No.6 and Sharanappagouda.

In this regard, she relied on the judgment of Hon'ble Apex

Court in the case of Vineeta Sharma Vs. Rakesh Sharma

and others, reported in (2020) 9 SCC 1.

32. Learned counsel for appellant would further

submit that the ancestral property cannot be gifted by one

coparcener, without the consent of other coparcener.

Hence, the alleged gift deeds in favour of defendant Nos.6

and 9 are null and void. In this regard, she relied on the

judgment of Hon'ble Apex Court in the case of

K.C.Laxmana Vs.K.C.Chandrappa Gowda and another

reported in (2022) 18 SCC 483.

33. Learned counsel for appellants would further

submit that if this Court comes to the conclusion that

defendants have established prior partition, then it is to be

challenged by plaintiff, no opportunity was given to plaintiff

to challenge the said earlier partition because there is no

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pleading on this point. Under those circumstances, remand

of the matter is required. In this regard, she relied on the

judgment of Hon'ble Apex Court in the case of J.Balaji

Singh Vs.Diwakar Cole and others reported in (2017)

14 SCC 207 and Divya Exports Vs.Shaliman Video

Company and others reported in (2014) 16 SCC 194.

34. Learned counsel for appellant would submit that

even at the stage of appeal, appellant could amend the

plaint pleadings and this is more required in the present

case that in the absence of proper pleadings from

defendants, the trial Court came to the conclusion that

there was prior partition amongst defendant No. 6 and

husband of defendant No.7 and hence, she has to amend

the plaint. In this regard, she relied on the judgment of

Hon'ble Apex Court in the case of M.R.K.Rau Vs.

Corporation of the City of Bangalore reported in ILR

1992 KAR 110 and Pandit Ishwardas Vs. State of

Madhya Pradesh and others reported in (1979) 4 SCC

163. Hence, prays for allowing the appeal.

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35. Learned counsel for respondent Nos.6 and 9

would submit that plaintiff is the daughter of deceased

Shanthavva i.e., the sister of defendant No.6. At the time of

commencement of this Hindu Succession (Amendment) Act,

2005 (for short 'Act, 2005') neither the original propositus

Gadigeppagouda nor his daughter Smt.Shantavva were

alive because Shantavva died in the year 1977 and

Gadigeppagouda died in the year 1990. Hence, at the time

of commencement of this Act, 2005, none of them were

alive. Hence, plaintiff cannot claim any share in the

properties of Gadigeppagouda. From the date of death of

her mother or from the date of death of Gadigeppagouda,

plaintiff has not filed suit within 12 years. But, she filed this

suit only in the year 2016. There is a clear cut admission

from plaintiff regarding earlier partition between defendant

No.6 and husband of defendant No.7. Hence, plaintiff is not

entitled for any share in joint family properties. Hence,

prays for dismissal of appeal.

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36. Having heard the arguments of both sides,

verifying appeal papers along with trial Court records, the

points that arise for consideration are:

1) Whether appellant is entitled for any share in suit

'A' and 'B' schedule properties?

2) Whether appellant be permitted to amend the

plaint cause title at this stage?

3) What order or decree?

37. Finding on Points No.1 & 2 is in 'NEGATIVE' for

the following:

Reasons

38. The genealogical tree furnished in the plaint is

admitted. According to this G-tree, one Gadigeppagouda

had a brother called Ninganagouda and this

Gadigeppagouda had two wives. The first wife is

Smt.Basavva to whom he has given divorce on 20.07.1956

and then married his second wife Smt.Iramma. This

Basavva had two children i.e., Smt. Shantavva and

defendant No.6-Chandrasekhar. This Shantavva married to

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one Shanthappa (Defendant No.1) and they have three

children i.e., plaintiff-Renuka, one Siddappa and defendant

No.5-Manjula. Siddappa died leaving behind his wife and

children i.e., defendant Nos.2 to 4. Shanthavva died in the

year 1977. Original propositus-Gadigeppagouda died on

12.09.1990. The second wife-Iramma had a son called

Sharanappagouda who died leaving behind his wife and son

i.e., defendant Nos.7 and 8.

39. There are 16 properties in suit 'A' schedule

property and 4 properties in suit 'B' schedule property.

40. According to the plaintiff, Item Nos.1 to 4, 13

and 16 of suit 'A' schedule properties were the ancestral

properties and they were standing in the name of

Gadigeppagouda.

41. Plaintiff claims to be coparcener along with

defendant No.6 and claims partition in suit 'A' and 'B'

schedule properties.

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42. As per Section 6 of Act, 2005, the daughter will

be considered as coparcener along with son.

43. In Veenita Sharma's case cited supra, it is

clearly held that the benefit of Section 6 of Act, 2005 is

available to daughters who are alive as on the date of

enforcement of the Amendment Act and it is not required

that the coparcener shall also be alive as on that date.

44. In the instant case, as discussed above, the

original propositus died in the year 1990 much earlier to

commencement of the Act, 2005 and his daughter i.e.,

mother of plaintiff predeceased the original propositus and

died in the year 1977 itself i.e., much earlier to

commencement of the Act, 2005. Admittedly, this

Gadigeppagouda had two sons one from first wife and

another from second wife.

45. Even though, there is no pleading regarding

partition between defendant Nos.6 and husband of

defendant No.7 in the written statement, there is

categorical admission from plaintiff that there was partition

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between defendant No.6 and husband of defendant No.7 in

the year 1997. She has categorically admitted that after the

death of Gadigeppagouda, she had not prayed for partition

in suit schedule properties. She admitted that during 1997,

there was partition in the ancestral properties between

defendant No.6 and husband of defendant No.7 and since

then, they are enjoying their properties separately and they

are exercising their absolute rights over the properties

which were fallen to their respective shares. She has

admitted that item Nos.5 to 10 of suit 'A' schedule

properties were purchased under registered sale deed in the

name of defendant No.9. The documents are also produced

in that regard. She has also admitted that the mother of

defendant No.6 and her grandmother-Basavva had gifted

properties under registered gift deed in favour of defendant

No.9 i.e. in respect of item No.11. The said gift deed is

dated 25.07.2008 and gift deed dated 15.11.2012 is

executed by Basavva in favour of defendant No.6 in respect

of Item Nos.12; item No.14 and 15 of suit 'A' schedule

properties are standing in the name of defendant No.6 as

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he purchased them under a registered sale deed dated

07.06.2013. Item No.1 of suit 'B' schedule property i.e.,

house property was standing in the name of Basavva and it

was purchased under registered sale deed dated

24.02.1962. Likewise, item No.4 of suit 'B' schedule

property i.e., house property was standing in the name of

defendant No.6 which he purchased in the year 1992.

Afterwards, he gifted the said property to defendant No.9.

item No.3 of suit 'B' schedule property i.e., house property

was standing in the name of defendant No.6 which he

purchased in the year 2006. Item No.2 of suit 'B' schedule

property was standing in the name of one Siddamma, i.e.,

sister of defendant No.1 who is not a party to the suit. At

the time of arguments, learned counsel for appellant would

fairly concede that she is not pressing the appeal in respect

of said property.

46. Defendant Nos.6 and 9 in their written statement

have categorically stated that they have these properties

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which are standing in their names either through sale or

through gift and they are their self acquired properties.

47. It is to be noted here that in Vineeth Sharma's

case, stated supra, the father need not be alive at the time

of commencement of Act, 2005. But in the instant case,

before commencement of said Act, 2005 both the father

and daughter were not alive. Should parties be permitted

to initiate litigation ex-post facto, long after the demise of

the death of the daughter--who would have derived interest

solely via the Act, 2005, and death of original coparcener

long prior to commencement of Act, 2005--it would result in

perpetual, unending litigation. Were centenarian partitions

or century-old revenue entries to be amenable to challenge

subsequently, it would, without doubt, lead to an incessant

stream of litigation, which fundamentally contradicts the

legislative intent of the Act, 2005, and violates the

principles articulated in Vineeth Sharma's case, supra.

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48. Learned counsel for appellant would submit that

there is no pleading in the written statement of defendant

No.6 & 9 that how they acquired those properties.

49. It is to be noted here that if a party pleads that

any property is his self-acquired property, then it is his

burden to establish that it is his self-acquired property.

Then he need not make any pleading that how he acquired.

What was the source of his acquisition to purchase said

property. Hence, the above argument of learned counsel for

appellant is tenable.

50. Defendant No.6 in her evidence has categorically

deposed that she was doing clothes business and from said

clothes business, she was making some savings and thus

she purchased the properties which are standing in her

name under separate registered sale deeds.

51. As far as earlier partition of 1997 is concerned,

definitely there is no pleading. But, plaintiff has

categorically admitted about it and furthermore, defendants

have produced Ex.D.34 i.e., the mutation register extract.

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According to this document, defendant No.6, husband of

defendant No.7 and their uncle Ninganagouda have

partitioned the joint family properties and in that partition

they have got their respective shares. After such partition,

those properties are re-numbered as 43/3, 43/4 etc. In this

case, learned counsel for appellant would submit that the

defendants have not produced the RTC extract to show that

this mutation was acted upon. Under Ex.D34, Survey

No.43/1/1, 45/1, 64/1 and 5/1+2 were partitioned.

Presently, the suit is filed in respect of survey Nos.43/3,

45/2, 5/1-2p, 64/2, 64/3 and 43/4 contending that these

are ancestral properties. This S.No.43/1/1 or 45/1 or 64/1

or 5/1+2 are not at all the suit schedule properties. But,

there is little change in the sub-numbers of these properties

which indicate the partition and categorical admission of

plaintiff in her cross examination. Hence, even though, no

such document is produced, there is an ample evidence to

establish that there is earlier partition in the year 1997.

Now, plaintiff has filed the suit in the year 2016 praying for

partition.

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52. In this regard, the Hon'ble Apex Court, in the

case of Vineeta Sharma vs. Rakesh Sharma and

others1, has clearly held in paragraph Nos.117, 127 and

129 as follows:

"117. How family settlement is effected was considered in Kale v. Deputy Director of Consolidation, (1976) 3 SCC 119, thus:

"10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

"(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

AIR 2020 SC 3717

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(3) The family arrangement may be even oral in which case no registration is necessary;

(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to

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the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."

15. In Tek Bahadur Bhujil v. Debi Singh Bhujil, AIR 1966 SC 292, 295, it was pointed out by this Court that a family arrangement could be arrived at even orally and registration would be required only if it was reduced into writing. It was also held that a document which was no more than a memorandum of what had been agreed to did not require registration. This Court had observed thus:

"Family arrangement as such can be arrived at orally. Its terms may be

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recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess.""

(emphasis supplied)

It is settled law that family arrangements can be entered into to keep harmony in the family.

127. A special definition of partition has been carved out in the explanation. The intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent

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nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of section 6, the intendment of legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and

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contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place.

129. Resultantly, we answer the reference as under section:

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(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of ClassI as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of

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a son in pending proceedings for final decree or in an appeal.

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."

53. Thus, it is the burden of defendant Nos.6 to 9 to

establish the earlier partition. As discussed above, it is

established as per Ex.D.34 and the RTC extracts of these

survey numbers produced by plaintiff.

54. In the instant case as discussed above, virtually,

plaintiff did not get any share in suit 'A' or 'B' schedule

properties by alleging that her mother was coparcener of

suit schedule properties because her mother and her

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grandfather were not alive as on the date of

commencement of Act, 2005. Section 6 of the Hindu

Succession (Amendment) Act, 2005 reads as under:

"6. Devolution of interest in coparcenary property.―(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,―

(a) by birth become a coparcener in her own right the same manner as the son;

(b) have the same rights in the coparcenery property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenery property as that of a son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

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(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenery property shall be deemed to have been divided as if a partition had taken place and,―

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-

deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre- deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre- deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted

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to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation.―For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great- grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect―

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such

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right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation.―For the purposes of clause (a), the expression "son", "grandson" or "great-grandson"

shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004

Explanation.―For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.]"

55. Under these circumstances, plaintiff cannot be

permitted to amend the plaint and the case cannot be

commenced afresh that too in a suit of 2016.

56. Hence, we are of the considered opinion that

plaintiff is not entitled for any share in suit 'A' or 'B'

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schedule properties and thus, the judgment and decree of

trial Court needs no interference. Accordingly, we proceed

to pass the following: