[Cites 7, Cited by 0]
Karnataka High Court
Sri Rayappa @ Raja vs Sri Vashishta S/O. Channappa ... on 21 January, 2026
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
1
RFA NO.100229 of 2017 C/W
RFA NO.100284 of 2017
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 21ST DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MRS JUSTICE GEETHA K.B.
REGULAR FIRST APPEAL NO.100229 OF 2017
C/W
REGULAR FIRST APPEAL NO.100284 OF 2017
IN RFA NO.100229/2017
BETWEEN
1. VASHISHTA
S/O. CHANNAPPA BALAGANNAVAR,
AGE: 27 YEARS,
OCC: STUDENT,
R/O: GARDEN PETH,
HUBBALLI-580020,
DIST: DHARWAD.
2. CHANDRAHAS
S/O. CHANNAPPA BALAGANNAVAR,
AGE: 29 YEARS,
OCC: STUDENT,
R/O: GARDEN PETH,
HUBBALLI-580020,
DIST: DHARWAD.
...APPELLANTS
(BY SRI. SHRIHARSHA A. NEELOPANTH, ADVOCATE)
2
RFA NO.100229 of 2017 C/W
RFA NO.100284 of 2017
AND
1. RAYAPPA @ RAJA
S/O MALLAPPA BALAGANNAVAR,
AGE: 53 YEARS,
OCC: PRIVATE SERVICE,
R/O: YALLAPUR ONI,
TQ: HUBBALLI-580020,
DIST: DHARWAD.
2. PRAKASH
S/O. MALLAPPA BALAGANNAVAR,
AGE: 43 YEARS,
OCC: PRIVATE SERVICE,
R/O: YALLAPUR ONI,
TQ: HUBBALLI-580020,
DIST: DHARWAD.
3. SMT. MAHADEVI
W/O. MALAKAJAPPA BALAGANNAVAR,
AGE: 45 YEARS,
OCC: HOUSEHOLD WORK,
R/O: YALLAPUR ONI,
TQ: HUBBALLI-580020,
DIST: DHARWAD.
4. SMT. ANASUYA
W/O. MALLESHAPPA BALAGALI,
AGE: 41 YEARS,
OCC: HOUSEHOLD WORK,
R/O: YALLAPUR ONI,
TQ: HUBBALLI-580020,
DIST: DHARWAD.
5. SMT. GIRIJAVVA
W/O. FAKKIRAPPA BALAGANNAVAR,
AGE: 77 YEARS,
OCC: HOUSEHOLD WORK,
R/O: YALLAPUR ONI,
TQ: HUBBALLI-580020,
DIST: DHARWAD.
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RFA NO.100284 of 2017
5(a) MALLAPPA
S/O. FAKKIRAPPA BALAGALI,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O. DEVIKOPPA-581204,
TQ: KALAGHATAGI, DIST: DHARWAD.
5(b) RAJU
S/O. FAKKIRAPPA BALAGALI,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O. ANCHATAGERI-580024,
TQ: HUBBALLI, DIST: DHARWAD.
5(c) HANAMANTAPPA
S/O. FAKKIRAPPA BALAGALI,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O. ANCHATAGERI-580024,
TQ: HUBBALLI, DIST: DHARWAD.
5(d) SMT. GURUSIDDAVVA
W/O. ASHOK MANSUR,
AGE: 63 YEARS,
OCC: HOUSEHOLD WORK,
R/O. MANSUR-580007,
TQ/DIST: DHARWAD.
5(e) SMT. SOMIBAI
W/O. KALLAPPA ULLAGADDI,
AGE: 46 YEARS,
OCC: HOUSEHOLD WORK,
R/O. MUTAGI-581204,
TQ: KALAGHATAGI,
DIST: DHARWAD.
6. KUMARI. GAYATRI
D/O. CHANNAPPA BALAGANNAVAR,
AGE: MAJOR, OCC: NIL,
R/O: GARDEN PETH,
TQ: HUBBALLI-580020,
DIST: DHARWAD.
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RFA NO.100284 of 2017
7. GOVIND
S/O. CHANNAPPA BALAGANNAVAR,
AGE: 27 YEARS,
OCC: PRIVATE SERVICE,
R/O: C/O: RAGHAVENDRA RENAKE,
GHARDEN PETH,
TQ: HUBBALLI-580020,
DIST: DHARWAD.
8. SMT. RUKMINI
W/O. CHANNAPPA BALAGANNAVAR,
AGE: 47 YEARS,
OCC: HOUSEHOLD WORK,
R/O: C/O. RAGHAVENDRA RENAKE,
GHARDEN PETH,
TQ: HUBBALLI-580020,
DIST: DHARWAD.
9. NIRMALKUMAR
S/O. HIRECHAND JAIN,
AGE: MAJOR, OCC: BUSINESS,
R/O: MADHURA COLONY,
KESHWAPUR, HUBBALLI,
DIST: DHARWAD-580023.
...RESPONDENTS
(BY SRI. N.S. KINI, ADVOCATE FOR R1 & R2;
SRI. PRASHANTH MATHAPATI, ADVOCATE FOR R5(B-E);
NOTICE TO R3, R4, R6-R9 DISPENSED WITH;
NOTICE TO R5A IS SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF CPC PRAYING TO CALL FOR RECORDS IN O.S.NO.06/2014 ON
THE FILE OF III ADDITIONAL SENIOR CIVIL JDUGE, HUBBALLI
AND TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE
DATED 10.03.2017 PASSED IN O.S.NO.06/2014 PASSED BY THE
COURT OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND
J.M.F.C. HUBBALLI AND DECREE THE SUIT OF THE PLAINTIFFS
IN O.S.NO.06/2014 IN SO FAR AS ITEM NO.1 OF SUIT
SCHEDULE-A PROPERTY IN THE INTEREST OF JUSTICE AND
EQUITY AND ETC.
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RFA NO.100284 of 2017
IN RFA NO.100284/2017
BETWEEN
1. SRI. RAYAPPA @ RAJA
S/O. MALLAPPA BALAGANNAVAR,
AGE: 47 YEARS,
OCC: PRIVATE SERVICE,
R/O: YALLAPUR ONI,
HUBBALLI-580020. DIST: DHARWAD.
2. SRI. PRAKASH
S/O. MALLAPPA BALAGANNAVAR,
AGE: 45 YEARS,
OCC: PRIVATE SERVICE
R/O: YALLAPUR ONI,
HUBBALLI-580020. DIST: DHARWAD.
...APPELLANTS
(BY SRI. N.S. KINI, ADVOCATE)
AND
1. SRI. VASHISHTA
S/O. CHANNAPPA BALAGANNAVAR,
AGE: 27 YEARS,
OCC: STUDENT,
R/O: GARDEN PETH,
HUBBALLI-580020,
DIST: DHARWAD.
2. SRI. CHANDRAHAS
S/O. CHANNAPPA BALAGANNAVAR,
AGE: 29 YEARS,
OCC: STUDENT,
R/O: GARDEN PETH,
HUBBALLI-580020,
DIST: DHARWAD.
3. SMT. MAHADEVI
W/O. MALAKAJAPPA BALAGANNAVAR,
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
R/O: YALLAPUR ONI,
6
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RFA NO.100284 of 2017
HUBBALLI-580020,
DIST: DHARWAD.
AFTER MARRIAGE CALLED AS
SMT. MAHADEVI
W/O. MALLAPPA BELAGALI,
R/O: DEVIKOPPA,
TAL: KALAGATAGI-580114,
DIST: DHARWAD.
4. SMT. ANASUYA
W/O. MALLESHAPPA BALAGALI,
AGE: 41 YEARS,
OCC: HOUSEHOLD WORK,
R/O: YALLAPUR ONI,
HUBBALLI-580020,
DIST: DHARWAD.
AFTER MARRIAGE CALLED AS
SMT. ANASUYA
W/O. PANCHAKSHARAYYA PURANIKMATH,
R/O: LAXMI NAGAR,
BIDNAL HUBBALLI,
DIST: DHARWAD.
5. SMT. GIRIJAVVA
W/O. FAKIRAPPA BALAGANNAVAR,
SINCE DECEASED BY HER LRS.
AMENDMENT CARRIED OUT AS
PER ORDER DATED 09.07.2025.
5(a) SMT. GURUSIDDAVVA
W/O. ASHOK MANSUR,
AGE ABOUT 58 YEARS,
OCC: HOUSE WIFE,
R/O. MANSUR,
TAL & DIST: DHARWAD.
5(b) SRI. MALLAPPA
S/O. FAKKIRAPPA BELAGALI,
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RFA NO.100284 of 2017
AGE ABOUT 63 YEARS,
OCC: AGRICULTURE,
R/O. DEVIKOPPA,
TAL: KALAGHATAGI.
5(c) SRI. RAYAPPA @ RAJA
S/O. FAKKIRAPPA BELAGALI,
AGE ABOUT 58 YEARS,
OCC: AGRICULTURE,
R/O. ANCHATAGERI,
TAL: HUBBALLI.
5(d) SMT. SUNAVVA
W/O. KALLAPPA ULLAGADDI,
AGE ABOUT 45 YEARS,
OCC: ANGANAVADI AYA,
R/O. MUTTAGI,
TAL: KALAGATAGI.
5(e) SRI. HANAMANTAPPA
S/O. FAKKIRAPPA BELAGALI,
AGE ABOUT 40 YEARS,
OCC: AGRICULTURE,
R/O. ANCHATAGERI,
TAL: HUBBALLI.
6. KU. GAYATRI
D/O. CHANNAPPA BALAGANNAVAR,
AGE: 30 YEARS, OCC: NIL
R/O: GARDEN PETH,
HUBBALLI-580020,
DIST: DHARWAD.
7. GOVIND
S/O. CHINNAPPA BALAGANNAVAR,
AGE: 29 YEARS,
OCC: PRIVATE SERVICE,
R/O: GARDEN PETH,
HUBBALLI-580020, DIST: DHARWAD.
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RFA NO.100284 of 2017
8. SMT. RUKMINI
W/O. CHANNAPPA BALAGANNAVAR,
AGE: 50 YEARS,
OCC: HOUSEHOLD WORK,
R/O: C/O RAGHAVENDRA RENAKE,
GARDEN PETH, HUBBALLI-580020,
DIST: DHARWAD.
9. NIRMALKUMAR
S/O. HIRACHAND JAIN,
AGE: MAJOR, OCC: BUSINESS,
R/O: MADHURA COLONY,
KESHWAPUR, HUBBALLI-580023,
DIST: DHARWAD.
...RESPONDENTS
(BY SRI. SHRIHARSHA A. NEELOPANTH,
ADVOCATE FOR R1 & R2, R6-R8;
SRI. PRASHANTH MATHAPATI, ADVOCATE FOR R5 (B-E);
NOTICE TO R3-R4 AND R9 NOTICE DISPENSED WITH;
NOTICE TO R5A IS SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC PRAYING TO THE JUDGMENT AND DECREE DATED
10.03.2017 PASSED BY THE COURT OF III ADDITIONAL SENIOR
CIVIL JUDGE, HUBBALLI PARTLY DECREEING THE SUIT FOR
PARTITION AND SEPARATE POSSESSION BY GRANTING 1/16TH
SHARE EACH IN THE SUIT SCHEDULE A(II) AND SUIT SCHEDULE
B PROPERTIES TO THE PLAINTIFFS/RESPONDENTS NO.1 AND 2
AND DEFENDANTS NO.7 AND 8/RESPONDENTS NO.6 AND 7 MAY
KINDLY BE SET ASIDE, AND THE SUIT IN O.S.NO.06/2014 IN
THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI
MAY KINDLY BE DISMISSED WITH COSTS THROUGHOUT IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 05.01.2026 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, DELIVERED THE
FOLLOWING:
9
RFA NO.100229 of 2017 C/W
RFA NO.100284 of 2017
CAV JUDGMENT
(PER: THE HON'BLE MRS JUSTICE GEETHA K.B.)
RFA No.100284/2017 is filed by defendants No.2 & 3
in O.S.No.6/2014 under Section 96 Code of Civil Procedure,
1908 (for short, hereinafter referred to as 'CPC')
challenging the entire judgment and decree passed in
O.S.No.6/2014 dated 10.03.2017 on the file of the III
Additional Senior Civil Judge, Hubballi (for short, 'Trial
Court'); RFA No.100229/2017 is filed under Section 96 of
the CPC by plaintiffs challenging the judgment and decree
passed in O.S.No.6/2014 only in respect of dismissal of suit
in respect of Item No.1 of suit 'A' schedule property.
2. Parties would be referred with their ranks, as
they were before the Trial Court for sake of convenience
and clarity.
3. Plaintiffs have filed the suit before Trial Court
praying for the relief of partition and separate possession of
their share in suit schedule properties by metes and
bounds; to declare that the transaction between defendants
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RFA NO.100284 of 2017
No.1 and 10 in respect of suit schedule Item No.1 (i) is not
binding on plaintiffs; to declare that plaintiffs are not bound
by the decision taken by defendant No.9 as their minor
guardian, as she failed to discharge her duties in the best
interest of minors; for court costs and for such other reliefs.
4. The family tree of the plaintiffs is furnished in the
plaint as follows:
Rayappa (died in 24.03.1963)
Smt. Gangavva (Died in 11.08.2009)
Mallappa Girijavva Chinnappa (Defet.No.1)
Died on (22.11.2012) (Deft No.6) (Died on 03.09.2016)
Rukmini (Deft No.9)
Rayappa Prakash Mahadevi Anasuya Vashista Chandrahas Gayatri Govind
(Deft No.2) (Deft No.3) (Deft No.4) (Deft No.5) (Pltff No.1) (Pltff No.2) (Deft No.7) (Deft No.8)
5. Plaintiffs contended that plaintiffs and defendants
No.1 to 8 constitute joint Hindu family. Defendant No.10 is
the purchaser of Sy.No.217/1A1 of Anchatgeri village from
defendant No.1. Defendant No.1 has no absolute right to
sell said property. Plaintiffs further contended that
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defendant No.1 out of the income derived from suit
schedule property No.1(ii) and rent of suit schedule
property No.1 and his hard labour earnings contributed by
deceased Mallappa and defendant No.5 has purchased the
suit schedule 'A(i)' property bearing Sy.No.217/1A1 situated
at Anchatgeri village being the head of the family in the
name of his wife deceased Gangavva in the year 1966.
During lifetime of original propositus, there was no partition
by metes and bounds. Even after his death, suit schedule
properties continued to be cultivated jointly by all the
members of joint family. Defendant No.1 is doing job typing
at Civil Court Campus, Hubballi and has gained legal
knowledge and aspect because of constant touch with the
legal professionals. It appears that, by keeping his mother,
deceased Gangavva, under duress, he got suit schedule
'A(i)' property transferred in his favour on the basis of an
alleged varadi, without any registered document. He was
aware that said property is the joint family property and
there was no partition by metes and bounds and even then,
only in collusion with defendant No.10, without there being
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any legal necessity, he got created sham and bogus
transaction and sold the said property to defendant No.10
for a throwaway price. Defendant No.1 has no right, title or
interest in said property for such alienation. Since several
years there has been rift between defendant Nos.1 and 9
because of their personal ego and are residing separately at
the stake and cost of their children. Though it transpired to
the knowledge of plaintiffs that defendant No.9 being posing
herself as minor guardian of then plaintiffs, now the present
plaintiffs, fought a collusive suit with defendant No.1 so
casually. There was no effective legal battle in protecting
the interests of the then minor plaintiffs. Defendant No.1
has not taken minimum care which she was legally bound to
take. Plaintiffs came to know about these developments
recently when they have verified the records pertaining to
landed property and immediately rushed to the Court and
obtained certified copies of proceedings in O.S.No.115/1996
and thereafter obtained other documents and convinced
that defendant No.1 has not acted in the welfare of minor
plaintiffs. Hence, the decision taken by defendant No.9 is
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not binding on the plaintiffs. Plaintiffs approached defendant
No.1 and insisted for effecting partition in respect of suit 'A'
and 'B' schedule properties and to hand over their
legitimate share. Defendant No.1 went on postponing the
same on one or the other pretext. He is not ready to effect
partition as demanded by plaintiffs. Hence, the suit for
appropriate reliefs.
6. After service of suit summons, defendant No.1
appeared through his counsel and filed his written
statement wherein he contended that the descriptions and
boundaries of suit schedule properties are incorrect. He
denied all the averments in the plaint in toto. He further
contended that only the names of defendant Nos.4 to 6
mentioned in the plaint is correct, but the names of their
respective husbands and their surnames are incorrect. Suit
schedule properties were never in joint possession and
cultivation of plaintiffs and defendants at any point of time.
Court fee paid is insufficient. There is no cause of action to
file the suit. The share claimed by plaintiffs in the suit is
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RFA NO.100284 of 2017
incorrect. Defendant No.7 is married and residing in her
husband's house. Defendant No.8 and plaintiff No.2 have
studied M.Tech. and residing in Bengaluru, but their address
is wrongly furnished in the plaint; 3 guntas 14 annas
property situated adjacent to P.B.Road at Rayapura village
standing in the name of defendant No.9 worth about ₹.1
crore is not included in the suit schedule. Hence, suit is bad
for non-joinder of all properties. He further contended that
family properties were never leased to anyone and thus, the
pleading that out of rental income, suit schedule 'A(i)'
property was purchased is incorrect. Defendant No.1 is
physically challenged person and there was no proper
income from agricultural properties. Deceased Mallappa was
working in a private Khadi Gramodyoga and was getting a
meager salary and hence, suit schedule 'A(i)' property could
not have been purchased from the income of joint family.
Plaintiffs in collusion with defendants No.7 to 9 have filed
another suit against defendant No.1 only to harass him and
present suit is also a false and concocted suit and it is
frivolous one. Plaintiffs have filed present suit at the
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instigation of defendant No.9. First plaintiff has completed
his M.Tech.(RUBET) i.e., M. E. Degree; second plaintiff has
completed her B.E. Degree in Computer Science; 7th
defendant is working in K.S.R.T.C.; 8th defendant has
completed M.E. and pursuing her PhD. Defendants No.1, 7
and 8 are getting very good salary. Second plaintiff will get
very good job in Bengaluru with huge salary. Already
second plaintiff is selected in campus selection for a job and
thus, all the plaintiffs No.1 and 2, defendants No.7 and 8
are under the influence of defendant No.9 and they have
filed this false suit at her instigation. Alternatively,
defendant No.1 prayed for demarcating his share in suit
schedule properties and that he will pay Court fee for it. He
further contended that plaintiffs have not filed the suit with
clean hands and are not entitled for any relief. Hence,
prayed for dismissal of suit with costs.
7. Defendant No.2 filed his written statement
wherein he contended that plaintiffs are never in joint
possession and enjoyment of suit schedule properties along
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with defendants as alleged in the plaint. They are residing
separately since 1993. Thus, the Court fee paid under
Section 35(1) of the Court Fees and Suits Valuation Act is
improper and insufficient. She has also taken contention
that only at the instigation of defendant No.9, plaintiffs
have filed the present suit with ulterior motives and
malafide intentions. He also took further contention that the
plaintiffs along with their mother has filed O.S.115/1996 for
partition and separate possession against defendant No.1
and others and after trial, it was dismissed on merits with
costs by passing judgment and decree dated 30.07.2005. In
the said judgment and decree, the present suit schedule
'A(i)' property was involved. They said judgment and decree
attained finality and thus, the present suit is hit by
principles of resjudicata. Plaintiffs have filed said suit only in
respect of one property and not included other properties of
present suit schedule. Hence, the suit is hit by Order II Rule
2 of CPC. Thus, the present suit is not maintainable in law.
The relationship mentioned in the plaint is vague and
incomplete. The genealogy shown in the plaint is also
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incomplete, improper and thus, he denied the said
genealogy. Defendant No.2 denied all other allegations
made in the plaint. Defendant No.2 took further contention
that there was partition in the year 1988-1989 and in that
partition suit schedule 'A(i)' property was allotted to the
share of defendant No.1. Defendant No.1 has borrowed loan
from Hubballi Taluka Primary Co-Operative Agricultural and
Village Development by mortgaging the property. Since he
was unable to repay the said debt, he sold said property.
Thus, the share of defendant No.1 is already given.
Plaintiffs being the children of defendant No.1 cannot claim
any partition against other defendants.
8. Defendant No.2 further contended that marriage
of defendant No.1 with defendant No.9 has taken place in
the year 1979. After said marriage defendant No.1 started
residing separately. The mother of plaintiffs induced
defendant No.1 to seek share in family properties and thus,
this Sy.No.217/1A1 and a residential plot at Anchatgeri
village were transferred into the name of defendant No.1
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towards full and final satisfaction of his share if any. After
selling suit schedule 'A(i)' property, defendant No.1 has
purchased N.A. plot bearing No.11 in Sy.No.187 measuring
3 guntas 14 annas at Rayapura village in the name of
defendant No.9 from a part of said sale proceeds. Thus, it
was purchased out of family funds and it is a joint family
property and liable for partition. Suit 'A(ii)' and suit 'B'
schedule properties are the absolute properties of defendant
Nos.2 and 3 and they are in actual and lawful possession
and enjoyment of those properties. Defendants No.1, 4 to 6
are parties to the registered partition deed dated
27.10.2014 and they have relinquished their right, title and
interest in and over the property in favour of defendant
Nos.2 and 3. The said partition is in accordance with the
oral partition arrived between parties wherein suit 'A' (i)
property was given to the share of defendant No.1.
Defendant No.1 has signed and executed such registered
partitiod deed as Karta of his smaller Hindu Undivided
Family (H.U.F.) and thus, plaintiffs cannot claim any share
in the remaining properties. The court has no jurisdiction to
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entertain the suit. Hence, prayed for dismissal of suit with
costs and compensatory costs.
9. Defendant No.2 has filed additional written
statement after amendment of the plaint, wherein he
denied all the averments made in the amended plaint. He
further contended that animosity between plaintiffs and
their mother is neither pleaded nor advanced and such an
allegation is only an afterthought. Mother of plaintiffs has
acted as minor guardians for plaintiffs in the previous suit
and her those acts, deeds and things cannot be questioned
by plaintiffs in this suit. As on the date of filing of the
present suit, plaintiffs No.1 and 2 were 23 and 26 years old
respectively and therefore, the amended plaints are time-
barred and deserve to be dismissed on the ground of
limitation alone. The only motto of plaintiffs is to cause
harm, injury and harassment to defendants. Hence, prayed
for dismissal of suit with costs.
10. Defendant No.9 has filed her written statement
wherein she contended that suit is not maintainable either
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in law or on facts. Defendant No.9 is not a coparcener and
thus, the dispute is not concerned against her. She is not a
necessary party to the suit. The suit is liable to be struck
down against defendant No.9. She further took contention
that the description of suit schedule properties and the
genealogy furnished in the plaint are correct. The
relationship between parties is not disputed. She further
took contention that as on the date of suit, joint family
exists and defendant No.1 is Kartha of it. She denied other
allegations made in the plaint at paragraph Nos.4 and 5.
There is no partition in the family and the alleged partition
is bogus, false and unsustainable document. It is made
unilaterally that too during pendency of the suit. She further
contended that due to strained relationship between her
and defendant No.1, she was compelled and constrained to
reside separately. Though defendant No.9 spent her entire
life for the welfare of plaintiffs and other children at the
stake and cost of her life, now they have colluded with
defendant No.1 and neglected her. Hence, the suit is the
result and connivance between plaintiff and defendant No.1
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only to curb and prevent defendant No.9 to be part and
parcel of their undivided Hindu joint family. She is the
absolute owner of property situated at Rayapura i.e., plot
No.11 having R.S.No.187 measuring 3 guntas 14 annas. By
virtue of Will, she acquired said property. Subsequently by
virtue of Probate, the title of said property was confirmed
on her. Hence, said property is her self-acquired property.
Hence, prayed for dismissal of suit against defendant No.9
with costs.
11. From the above facts, the Trial Court has framed
the following issues and additional issues:
"ISSUES
1) Whether the plaintiffs prove that schedule
properties are the joint family properties of the
plaintiffs and defendants No.1 to 8?
2) Whether plaintiffs prove that transaction between
defendants No.1 and 10 in respect of the property
in schedule No.1 (I) is not binding on the
plaintiffs?
3) Whether the defendants No.2 and 3 prove that
there is a partition and in the partition schedule
A(II) and schedule B property was allotted to the
share of defendants No.2 and 3?
4) Whether defendants No.2 and 3 prove that plot
bearing No.11 in Sy.No.187 was purchased in the
name of defendant No.9 out of the joint family
property?
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5) Whether suit is not properly valued for the purpose
of court and the court fee paid is insufficient?
6) Whether the suit of the plaintiffs is barred by
limitation?
7) Whether the plaintiffs are entitled for the share in
the schedule property, if so to what extent?
8) Whether the plaintiffs are entitled for the reliefs
claimed in the suit?
9) What order or decree?
ADDL. ISSUES
1) Whether the suit is barred by principles of
resjudicata?
2) Whether the suit is barred U/Order 2 Rule 2 of
CPC?"
12. On behalf of plaintiffs, plaintiff No.1 was
examined as P.W.1, got marked Exs.P.1 to P.9 and closed
their side before Trial Court. On behalf of defendant No.1,
defendant No.1 was examined as D.W.1. On behalf of
defendant Nos.2 and 3, Defendant No.2 was examined as
D.W.2. Defendant No.9 was examined as D.W.3 and they
got marked Exs.D.1 to D.36 and closed their respective
sides before Trial Court.
13. After recording evidence of both sides and
hearing arguments of both sides, the learned Trial Judge
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held that plaintiffs have established that plaintiffs and
defendants are members of joint family and Item No.A(ii)
and all the Items of suit 'B' schedule properties are the joint
family properties and plaintiffs and defendant Nos.7 & 8 are
entitled for 1/5th share each in those properties by metes
and bounds and directed to draw preliminary decree.
14. Aggrieved by the said judgment and decree of
not granting share in suit schedule 'A(i)' property, plaintiffs
have preferred RFA No.100229/2017; defendant Nos.2 and
3 have preferred appeal in RFA No.100284/2017
challenging the grant of share to plaintiffs in other
properties.
15. Learned counsel for the appellants-defendant
Nos.2 and 3 in RFA No.100284/2017 would submit that the
suit of the plaintiffs ought to have been dismissed because
there is a registered deed executed in the year 2014 by
defendant No.1, who is Kartha of his small co-parcenary
HUF family i.e., consisting of plaintiff Nos.1, 2 and
defendant Nos.7 to 9. Hence, the deed executed by
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defendant No.1 and defendant No.6 in favour of defendant
Nos.2 to 5 binds plaintiffs and defendant Nos.7 to 9. Thus,
already partition had taken place between the parties and in
that partition suit schedule 'A(ii)' property and other 'B'
schedule properties were allotted to the share of defendant
Nos.2 to 5 and defendant Nos.1 and 6 have relinquished
their right in those properties. Furthermore, suit schedule
'A(i)' property was allotted to the share of defendant No.1
and thus the plaintiffs cannot claim any share in suit
schedule 'A(ii)' property and 'B' schedule properties.
However, learned Trial Judge has not considered these
aspects and decreed the suit in respect of suit schedule
'A(ii)' property and 'B' properties and hence, prayed for
allowing his appeal.
16. He would further submit that in view of the suit
filed by defendant No.9 on behalf of herself and on behalf of
her minor children i.e., plaintiff Nos.1, 2, 7 and 8 in respect
of suit schedule 'A(i)' property, and as said suit was
dismissed, it acts as resjudicata. Hence, plaintiffs cannot
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claim any share even in that property. Furthermore, in that
suit, the plaintiffs have not included present suit 'A(ii)'
property and 'B' schedule properties and thus it acts as a
bar for them to file fresh suit as per Order II Rule 2 CPC.
Hence, suit is hit by these two provisions i.e., principles of
resjudicata and Order II Rule 2 CPC. However, learned Trial
Judge has not appreciated these points of law in a proper
manner and hence prayed for allowing his appeal and to
dismiss the appeal of plaintiffs.
17. Learned counsel for appellants-plaintiffs in RFA
No.100229/2017, Sri.Shriharsha A. Neelopanth would
submit that the plaintiffs were minors when their mother
filed suit for partition in respect of suit schedule 'A(i)'
property and thus the decree passed in said suit is not
binding on them because their mother has not acted as a
prudent guardian while conducting the said suit.
18. He would further contend that this property was
standing in the name of their grandmother-Gangavva and
she was not having any independent income to purchase
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the said property and it is their grandfather who has
purchased the said property in her name. Hence, without
any registered document, she was not permitted to transfer
the property in the name of defendant No.1 and defendant
No.1 sold the property to defendant No.10 not for legal
necessity or for family benefit and hence, the sale deed is
not binding on them. He would further contend that since
several years there was rift between his parents i.e.,
defendant Nos.1 and 9 and they are residing separately.
Both of them have not taken proper care of plaintiffs and
defendant Nos.7 & 8. In O.S. No.115/1996 filed by their
mother, even before the plaintiffs attained majority, she got
discharged guardianship on behalf of plaintiffs and
ultimately the said suit was dismissed. Hence, defendant
No.1 has not acted in the welfare of minor children. Suit
'A(ii)' and suit 'B' schedule properties are ancestral
properties of plaintiffs and defendant Nos.2 to 5 as they
were standing in the name of their grandfather and there is
no partition in respect of those properties. Hence,
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considering this aspect, the Trial Court has decreed the suit
in respect of those properties.
19. He would further contend that without the family
necessity, family benefit and legal necessity, the sale by
defendant No.1 in favour of defendant No.10 is not binding
on plaintiffs, and defendant No.1 never resided with
plaintiffs and not looked after their welfare. However, Trial
Court has not appreciated these facts in a proper manner
and wrongly came to the conclusion that the suit is hit by
principles of resjudicata and hence, prayed for allowing the
appeal in RFA No.100229/2017 by granting a share even in
respect of suit 'A(i)' schedule property and hence, prayed
for dismissal of RFA No.100284/2017.
20. Having heard the arguments of both sides and
verifying the appeal papers along with Trial Court records,
the following points would arise for our consideration:
i) Whether plaintiffs-appellants in RFA
No.100229/2017, prove that they are entitled
for share in suit 'A(i)' schedule property and the
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judgment and decree in dismissing the suit in
respect of said property by the Trial Court is
erroneous?
ii) Whether appellants in RFA No.100284/2017
prove that the decree of suit in respect of suit
'A(ii)' property and suit 'B' schedule properties
and granting share to plaintiffs by the Trial
Court is erroneous and it requires interference?
iii) What order or decree?
21. Our answer to the above points is as under:
Point No.1: In the Negative;
Point No.2: In negative;
Point No.3: as per final order
For the following:
REASONS
22. The undisputed facts of the case are that one
Rayappa Balagannavar was the original propositus of the
family having two sons i.e., Mallappa and Chinnappa
(defendant No.1) and a daughter called Girijavva
(defendant No.6) and he had a wife called Gangavva. The
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said propositus died in the year 1962 leaving behind his
wife and 3 children. His wife Gangavva died in the year
2009; his first son Mallappa died in the year 2012 and
second son Chinnappa died during pendency of these
appeals and his daughter Girijavva is defendant No.6 in the
suit. The first son Mallappa and his wife Shantavva died
leaving behind his children i.e., defendants No.2 to 5. The
second son Chinnappa is defendant No.1. Plaintiffs and
defendants No.7 & 8 are children of defendants No.1 and 9.
Plaintiffs claimed partition in respect of suit schedule
properties contending that all the suit schedule properties
are the ancestral and joint family properties.
23. The Trial Court decreed the suit in respect of suit
schedule A (ii) property bearing Survey No.155/2B
measuring 2 acres 20 guntas situated at Garden Peth
village, Hubballi and also in respect of suit 'B' schedule
properties consisting of house properties. The Trial Court
dismissed the suit in respect of suit schedule 'A(i)' property
on the ground that this property was already the subject
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matter of earlier suit bearing O.S.No.115/1996 and thus it
operated as resjudicata to plaintiffs.
24. The oral and documentary evidence produced
before the Trial Court clearly establishes that suit schedule
'A(i)' property bearing Survey No.217/1A1 measuring 3
acres 6 guntas situated at Anchatageri village, Hubballi
Taluk was purchased in the name of Gangavva on
14.02.1966 through registered said deed and then it was
mutated into the name of defendant No.1 only based on
varadi during 1987 as per M.E.No.119/1987. Afterwards,
defendant No.1 has sold the said property to defendant
No.10 under registered sale deed dated 11.12.2006.
25. It is the contention of plaintiffs that without any
registered document, only through varadi, the said property
is mutated into the name of defendant No.1 and thus it
would not confer any absolute right to defendant No.1 to
sell it to defendant No.10 and hence, the said sale deed is
not binding on their share.
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26. It is to be noted here that O.S.No.115/1996 was
filed on behalf of plaintiffs No.1 and 2 and defendants No.7
and 8, who were minors at that time by their mother as
natural guardian and also on her behalf against defendant
No.1 for the relief of partition and separate possession of
their share in respect of suit schedule 'A(i)' property. Said
suit was dismissed on merits on 30.07.2005. Against the
said judgment and decree, no appeal is preferred. Hence, it
attained finality.
27. It is the contention of plaintiffs that they were
minors at that point of time and even then though they
have not attained majority, defendant No.9 in collusion with
defendant No.1, has filed application for discharge of
guardianship and it was allowed and then the said suit was
disposed of and hence it is a collusive decree and thus said
judgment and decree is not binding on them.
28. It is to be noted here that the certified copies of
plaint, written statements and judgment of said suit are
marked as Exs.D.9 to D.11 and Ex.D.16 in this suit. The
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certified copies of application accompanying with the
affidavits of present plaintiffs and defendant No.7 & 8 filed
for discharge of guardianship and vakalath of said suit are
produced as per Exs.D.19 and D.20. This Ex.D.19 is the
application filed under Order XXXII Rule 12 read with
Section 151 of CPC to discharge the guardianship of
plaintiffs No.1 to 4 of said suit contending that all of them
have attained majority and it is supported by their
respective affidavits and also affidavit of plaintiff No.5 of
said suit, who is defendant No.9 in this suit stating that all
of them attained majority and they can agitate their suit.
29. Based on this application, the guardianship of all
the plaintiffs No.1 to 4 was discharged.
30. Learned counsel for the appellants would submit
that the present plaintiffs have not attained majority as on
that date as per their SSLC marks cards produced in this
case as per Ex.P.38 and P.39.
31. It is to be noted here that the present plaintiffs
might have been minors at that point of time because their
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date of birth mentioned in Ex.P.38 and P.39 reveals that
they were born on 25.09.1989 and 01.03.1988. However,
these plaintiffs were not uneducated people. They have
studied well and they are Engineering graduate and M.Tech.
graduate respectively and defendants No.7 and 8 are also
highly educated and they have completed their ITI and
M.Sc. courses. Present plaintiffs have sworn to the affidavits
in said suit by putting their signatures that their age is 19
and 18 years respectively. Plaintiff No.1 in her evidence
categorically admitted her signature in the affidavit annexed
to this I.A.
32. Under Article 60 of the Limitation Act, the ward
can file a suit to set aside a transfer of property made by
the guardian within 3 years of he attaining majority. Hence,
if the minor guardian i.e., mother of plaintiffs has not taken
due care at the time of prosecuting O.S.No.115/1996 and
because of that said suit came to be dismissed, it was open
for plaintiffs to challenge the said judgment and decree
within 3 years of they attaining majority. However, plaintiffs
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have not made any efforts to challenge the judgment and
decree passed in O.S.No.115/1996. On the other hand, they
have filed the present suit only in the year 2014 i.e., more
than 3 years after they attained majority. No reason is
assigned by plaintiffs for not challenging the judgment and
decree passed in said suit.
33. In this suit, only as an afterthought, plaintiffs
have amended the plaint and made certain allegations
against their mother, defendant No.9 that it transpired to
the knowledge of plaintiffs that defendant No.9 posing
herself as minor guardian has fought a collusive suit with
defendant No.1 so casually and there was no effective legal
battle in protecting the interest of minor plaintiffs and has
not taken minimum care which she was legally bound to
take and plaintiffs came to know of these developments
recently when they have verified the records pertaining to
landed properties and immediately they have obtained
certified copies of proceedings of O.S.No.115/1996 on
03.03.2011 and thereafter they have convinced that
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defendant No.9 has not acted in the welfare of family and
then they have filed the present suit on 04.01.2014.
34. Even according to their pleadings, plaintiffs kept
quiet for a period about 3 years after they came to know
about the judgment and decree of O.S.No.115/1996 and
not challenged the same. Only in this suit, they have prayed
for declaration that the decision taken by defendant No.9 is
not binding on them as she failed to discharge her duties in
the best interest of minors. Even in this suit they have not
made any prayer for setting aside the judgment and decree
passed in O.S.No.115/1996.
35. It is to be noted here that the genealogical tree
produced in the plaint and the sale deed produced in this
suit of 1966 establish that the property in question was
purchased by Smt.Gangavva and after her death not only
plaintiffs but all her legal heirs i.e., her 2 sons i.e., Mallappa
and Chinnappa-defendant No.1 and her daughter Girijavva
would be entitle for share in this property, if defendant No.1
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failed to establish that the said property was not transferred
to him in accordance with law.
36. However, at the time of filing the suit, this
Mallappa was no more. His legal representatives i.e.,
defendants No.2 to 5 and the daughter of Smt.Gangava i.e.,
defendant No.6 have not questioned the said transfer of
property from Gangavva to defendant No.1 or alienation of
said property by defendants No.1 to 10 at any point of time
till today. They have not even prayed for Counter-Claim in
this suit. They have only stated that they reserved their
right of Counter-Claim, but no counter claim is made.
37. It is to be noted here that during the lifetime of
mother of defendant No.1, defendant No.1 has alienated the
suit schedule 'A(i)' property to defendant No.10. Much
earlier to it during 1987 itself as per ME No.119/1987, suit
schedule 'A(i)' property was mutated into the name of
defendant No.1. During her lifetime, mother of defendant
No.1 has not challenged these transfers. Under these
circumstances, when only father of plaintiffs No.1 and 2,
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who has alienated said property during lifetime of his
mother, who has not questioned the same even though she
was alive for about three years of such alienation by
defendant No.1, this property was mutated into the name of
defendant No.1 in the year 1987 itself. Even this Mallappa
who was alive up to 2012, has not challenged the revenue
entries mutated into the name of defendant No.1 or
alienation made by defendant No.1 during 2006. Defendant
No.6 has not challenged the said alienation.
38. With this background, the evidence adduced by
both parties is to be looked into to say whether defendant
No.1 has made any contribution for the education or other
needs of plaintiffs or whether he acted adverse to the
interests of plaintiffs.
39. As discussed above, plaintiffs No.1 and 2 are well
educated and their mother i.e., defendant No.9 was not
having any proper employment.
40. It is the case of plaintiffs that defendants No.1
and 9 were residing separately since long time and plaintiffs
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and defendant No.9 along with defendants No.7 and 8 were
residing in the parental house of defendant No.9. Plaintiffs
have not stated that their grandparents or their maternal
uncles have looked after their welfare. On the other hand,
plaintiff No.1 in her evidence has categorically deposed that
defendant No.1 was often visiting their house. She has
categorically deposed that till completion of her diploma,
defendant No.1 has borne the educational and other
expenses. She is not having any personal knowledge that
what is the job plaintiff No.2 is doing and how much amount
defendant No.1 spent towards their education or towards
the education of defendants No.7 & 8. She has not denied
the suggestion that defendant No.1 has obtained loan by
mortgaging suit schedule 'A(i)' property before PLD Bank for
the educational expenses of plaintiff and her siblings, but
she has only deposed that she does not know about it. Said
property was put in auction by PLD Bank for non-payment
of loan amount.
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41. It is to be noted here that defendants No.1 and 9
loved each other and married against the will and wish of
the family members of defendant No.1, but even then they
have allowed defendants No.1 and 9 to reside in a room in
their property. Both of them were working together at
Janata Bazaar and after marriage defendant No.1 started
job typing work and she was occasionally doing the said
work along with defendant No.1.
42. It is the specific contention of defendant No.1
that his mother was herding cattle and doing milk vending
business and from the income of her avocation and profits
from milk vending business she has purchased the suit
schedule 'A(i)' property. In this regard, defendant No.9 in
her cross-examination expressed her ignorance, but she
admitted that occasionally she was going to the house of
mother of defendant No.1 to purchase milk. This shows that
she was aware of the said fact. Anyway, the property was
purchased in the name of a female; then the presumption is
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that it is her self-acquired property and person who
disputes it, must rebut the said presumption.
43. In the instant case, neither the plaintiffs nor
defendants No.2 to 5 have produced any iota of evidence to
show that this property was purchased in the name of
mother of defendant No.1 by his father and Gangavva has
no independent income to purchase it. All of them have
expressed their ignorance on this point and not deposed
anything on this point. Anyway, this property was
purchased in the year 1966 and transferred into the name
of defendant No.1 during 1987 and he sold it in the year
2006 and these alienations were not challenged during
lifetime of Gangavva or subsequently by the other parties to
the suit at any point of time. Hence, it is to be held that the
said property was self-acquired property of mother of
defendant No.1 and even though it was transferred into the
name of defendant No.1 without any registered document,
as it is transferred within the family members and as other
family members have not disputed it, he sold it and sale is
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also not questioned by any one. Hence, we are of the
considered opinion that the sale deed executed by
defendant No.1 is binding on all other family members.
According to defendant No.1, he sold it for family benefit
and legal necessity i.e., for educational expenses of his
children and to clear the loan of society, which cannot be
disputed.
44. Defendants No.1 and 2 to 5 have taken the
contention that from the said sale proceeds, defendant No.1
has cleared bank loan and then he has given the remaining
amount to defendant No.9 and in turn purchased the
property at Raibag in her name. Defendants No.2 to 5 have
contended that the said property should also be included in
the present suit schedule property. However, defendants
No.2 to 5 have not produced sufficient materials to show
that the said property standing in the name of defendant
No.9 was purchased out of sale proceeds of suit schedule
'A(i)' property. Hence, the said contention cannot be
accepted. Furthermore, defendant No.9 has contended that
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she got the said property through Will and she has also
obtained Probate in P & Sc.13/04 as per Ex.D.26. Hence,
the contention of defendant No.2 to 5 on this point is not
acceptable one.
45. Anyway sale of suit schedule 'A(i)' property has
taken place long back and it is not questioned by anyone
and it is for the benefit of the family. Hence, said sale deed
is binding on other parties to the suit.
46. The cross-examination of defendant No.1 reveals
that his mother has obtained loan to dig a bore-well in suit
schedule 'A(i)' property and loan was not cleared and hence
the property was put in for auction and without auctioning
the same, he sold it to defendant No.10 and cleared the
said loan. Thus, the property was used by defendant No.1
and his mother.
47. It is the specific contention of defendants No.2 to
5 that there was registered partition deed executed by
defendants No.1 and 6 in favour of defendants No.2 to 5 on
27.10.2014. The suit is filed on 04.01.2014, whereas this
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document came into existence on 27.10.2014 i.e., during
pendency of present suit. Anyway, under said document, no
property was given to defendant No.1 or defendant No.6.
48. On perusal of the partition deed, it is to be noted
that no share is allotted either to defendant No.1 or to
defendant No.6. But it is only the partition amongst
defendants No.2 to 5. No reason is assigned for not allotting
any share to defendants No.1 and 6 in the said document.
Furthermore, it came into existence during pendency of the
present suit. Admittedly, suit schedule 'A(ii)' property and
all items of suit 'B' schedule properties were standing in the
name of original propositus Rayappa Balagannavar. Hence,
after his death, his wife and children will get share in those
properties. Admittedly, no partition had taken place
between parties till commencement of Hindu Succession
(Amendment) Act, 2005. Under these circumstances,
definitely his two sons and daughter will get equal share in
those properties. His first son is no more. The children of his
first son together will get one share and his second son i.e.,
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defendant No.1 and his family i.e., his wife and children
together will get one share and defendant No.6 will get one
share.
49. Learned counsel for defendants No.2 to 5
vehemently submitted his arguments that the suit for
partition filed by present plaintiffs along with defendants
No.7 to 9 against defendant No.1 in O.S.No.115/1996 bars
them from filing another suit for partition as per Order II
Rule 2 of CPC.
50. It is to be noted here that the said suit in
O.S.No.115/1996 is filed by plaintiffs, defendants No.7 to 9
against defendant No.1 alone in respect of only suit
schedule 'A(i)' property and not in respect of other
properties and other defendants i.e., defendants No.2 to 6
were not parties in that suit.
51. It appears that plaintiffs have filed said suit for
partition only in respect of one of the suit schedule
properties because it was standing in the name of their
grandmother and during her lifetime it was mutated into the
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name of defendant No.1 alone. This is not at all disputed by
other defendants as discussed above. Hence, filing of said
suit only against defendant No.1 amounts to praying for
partition in a small coparcenary property i.e., amongst
plaintiffs and defendants No.1, 7 to 9. Other defendants
were not included in the said suit. Under those
circumstances, Order II Rule 2 of CPC is not a bar for
plaintiffs to file present suit in respect of all other properties
i.e., Item No.II of suit 'A' schedule properties and other
items of suit 'B' schedule properties. Hence, the argument
of learned counsel for defendants No.2 to 5 on this point is
not tenable.
52. Even though learned Trial Judge has not
considered these aspects, but he considered only the point
of resjudicata and dismissed the suit in respect of suit
schedule 'A(i)' property, which requires no interference.
Likewise, the decree of suit in respect of other items of suit
schedule properties by the learned Trial Judge is based on
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sound reasoning, which is justifiable and requires no
interference.
53. For the above reasons, the points raised above
are answered accordingly.
ORDER
1. Both appeals filed under Section 96 Code of Civil
Procedure are dismissed by confirming the
judgment and decree passed in O.S.No.6/2014
dated 10.03.2017 on the file of the III Additional
Senior Civil Judge, Hubballi;
2. Under facts and circumstances of the case, parties
to bear their own costs;
3. Draw preliminary decree accordingly.
Sd/-
(MOHAMMAD NAWAZ)
JUDGE
Sd/-
(GEETHA K.B.)
JUDGE
SSP-Para 1 to 14
HMB-para 15 to 21
SH-Para 22 to end, CT-MCK
