- 1 - NC: 2025:KHC-K:1934 RSA No. 7410 of 2011 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 25TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 7410 OF 2011 (PAR) BETWEEN: 1. SMT. GURUSHANTAMMA W/O SIDDAYYA SWAMY AGED ABOUT 73 YEARS, OCC: HOUSEHOLD WORK, R/O: JEEVANAGI, TQ: CHITTAPUR, DIST: GULBARGA. 2. SMT. JAGADEVI W/O SHIVANAND AGED ABOUT : 43 YEARS, OCC: HOUSEHOLD WORK, R/O: NEAR POLICE QUARTERS, SHAHABAD, DIST: GULBARGA. …APPELLANTS (BY SMT. RATNA N.SHIVAYOGIMATH, ADVOCATE) AND: 1. a) PANCHAYYA SWAMY S/O MADIVALAYYA SINCE DECEASED BY HIS LRS MADIVALAYYA S/O PANCHAYYA SWAMY, SINCE DECEASED BY HIS LRS Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1934 RSA No. 7410 of 2011 a) i.) SHARDHA W/O MADIVALAYYA SWAMI, AGED ABOUT 46 YEARS, OCC: HOUSEHOLD, R/O MAKTAMPUR GULBARGA. a) ii) SMT. RENUKHA D/O MADIVALAYYA SWAMI, AGED ABOUT 27 YEARS, OCC: PRIVATE SERVICE, R/O MAKTAMPUR GULBARGA. a) iii) MALLIKARJUN S/O MADIVALAYYA SWAMI, AGED ABOUT 25 YEARS, OCC: PRIVATE SERVICE, R/O MAKTAMPUR GULBARGA. a) iv) SMT. JYOTI D/O MADIVALAYYA SWAMI, AGED ABOUT 23 YEARS, OCC: PRIVATE SERVICE, R/O MAKTAMPUR GULBARGA. a) v) SHRUTI D/O MADIVALAYYA SWAMI, AGED ABOUT 21 YEARS, OCC: STUDENT, R/O MAKTAMPUR GULBARGA. a) vi) JAGADESH S/O MADIVALAYYA SWAMI, AGED ABOUT 19 YEARS, OCC: STUDENT, R/O MAKTAMPUR GULBARGA. b. VEERESH S/O PANCHAYYA SWAMY AGED ABOUT 37 YEARS, OCC: PRIVATE SERVICER, R/O: H.NO.4-383, MATAMPUR DIST: GULBARGA. - 3 - NC: 2025:KHC-K:1934 RSA No. 7410 of 2011 c. SHARANAMMA W/O VIJAY KUMAR AGED ABOUT 53 YEARS, OCC: H.H. WORK, R/O: SARAF BAZAAR, GULBARGA. d. SHIVALEELA W/O SHIVANAND SWAMY AGED ABOUT 48 YEARS, OCC: H.H. WORK, R/O: HEERAPUR, TQ: & DIST: GULBARGA. e. VIJAYALAXMI W/O SOMASHEKHAR HOSMATH AGED ABOUT 35 YEARS, OCC: H.H. WORK, R/O: HOUSING BOARD COLONY, NEAR P & T QUARTERS, GULBARGA. …RESPONDENTS (BY SRI AJAYKUMAR A.K., ADVOCATE FOR R1 (A) (I) TO R1 (A) (IV), R1(VI) AND R1(B); SRI RAMACHANDRA K., ADVOCATE FOR R1(A) (V); R1(C), R1(D), R1(E), ARE SERVED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO CALL FOR ENTIRE RECORDS AND SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 22.012.2007 PASSED BY THE LEARNED CIVIL JUDGE (JR.DN.,) SHAHABAD IN O.S.NO.21/2004 AND THE JUDGMENT AND DECREE DATED 23.09.2011 PASSED BY THE LEARNED CIVIL JUDGE (SR.DN,) CHITTAPUR IN R.A.NO.18/2011 IN THE INTEREST OF JUSTICE AND EQUITY. THIS REGULAR SECOND APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE - 4 - NC: 2025:KHC-K:1934 RSA No. 7410 of 2011 ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) Heard. 2. This appeal is admitted on 29.11.2022 to answer the following substantial question of law: “Whether both Courts erred in entertaining a suit when defendants have succeeded in eliciting in the cross-examination of plaintiff, who has admitted in unequivocal terms that Sy Nos.100/1 and Sy No.53/8, which were purchased by plaintiff’s son are also joint family ancestral properties and therefore, suit for partial partition was not maintainable.” 3. The appeal is arising from concurrent finding in a suit for partition. The admitted genealogy would reveal that propositus was Madivalayya. He has two sons namely Siddayya and Panchayya. Elder son – Siddayya died in the year 1983 and Siddayya’s wife – Gurushantamma is defendant No.1. Gurushantamma’s son Mahanatayya died in the 1988 and his daughter – Jagadevi is defendant No.2. 2nd son of propositus– Madivalayya is the plaintiff. The genealogy produced with the written statement is as under: - 5 - NC: 2025:KHC-K:1934 RSA No. 7410 of 2011 Madivalayya Sidayya (died in 1983) plaintiff - Panchayya Wife – Girushantamma (Deft No.1) Mahanatayya (died in 1998 i.e., 05.03.1998) Jagdevi (Deft No.2) Madivalayya Sharnamma Shivaleela Vijaylaxmi Veeresh The plaintiff has five children named in the genealogy. 4. The suit for partition is filed in respect of two properties bearing Sy No.100/2 and 119/2 of Jeevanagi Village, Chittapur Taluk. The defendants took a contention that apart from the aforementioned two properties, certain properties namely Sy No.100/1 measuring 4 acres 36 guntas and Sy No.53/8 measuring 2 acres 24 guntas are not included in the suit and those properties purchased in the name of plaintiff’s children and prayed for dismissal of the suit. - 6 - NC: 2025:KHC-K:1934 RSA No. 7410 of 2011 5. Both the Courts have held that the suit is maintainable and there is no proof relating to the contention that Sy No.100/1 and 53/8 are the joint family properties. 6. Learned counsel appearing for the appellant would submit that the plaintiff has admitted in categorical terms that Sy Nos.100/1 and 53/8 are the joint family properties. Sy Nos.100/2 and 119/2 are admittedly the suit properties for which a decree is granted. 7. It is well settled provision of law that suit for partition should include all the properties and the partial partition is not permissible, unless the plaintiff seeks leave of the Court to file a suit for partial partition giving up the relief in respect of certain properties. The admission of the plaintiff appears to be categorical. However, it is to be noticed that the admission which is extracted in the cross examination for PW1 may not bind the children of plaintiff, who are not parties to the suit. Thus, there cannot be a decree in respect of those properties unless the plaintiff’s children are made parties and they are given an opportunity of hearing. Admittedly, Sy No.100/1 and 53/8 are standing in the name of plaintiff’s son - 7 - NC: 2025:KHC-K:1934 RSA No. 7410 of 2011 who is not made a party to the suit. Under these circumstances, the Trial Court ought to have impleaded the plaintiff’s son as party to the proceeding to ascertain as to whether the said properties are the joint family properties or not. And should have afforded an opportunity to plaintiff’s son to defend his case, if he takes a contention that the properties are the self acquired property. 8. Since there is an admission relating to Sy No.100/2 and 119/2 that they are the joint family properties, the decree in respect of those properties is to be confirmed. 9. Learned counsel for the plaintiffs / respondents would contend that the appellants are in possession of the property and there has to be a division of the properties. It is noticed the suit is filed in the year 2006. 10. Under these circumstances, the plaintiff is at liberty to file final decree proceeding seeking partition in respect of Sy No.100/2 and 119/2. In the said proceeding, both the parties are at liberty to propose the scheme of partition of the properties into two divisions. The respondent/plaintiff shall have the first option of choosing the division proposed by the - 8 - NC: 2025:KHC-K:1934 RSA No. 7410 of 2011 appellants. In that event the property chosen by the respondent – plaintiff shall be allotted to the plaintiff and remaining property shall be allotted to the appellants. 11. If the division proposed by the appellants is not acceptable to the respondent-plaintiff, then the respondent- plaintiff shall submit the scheme of division and appellants- defendants shall have the first choice of choosing the properties and such properties chosen by the appellants shall be allotted to the appellants-defendants. In such an event the remaining property shall be allotted to the plaintiff-respondent 12. As far as Sy Nos.100/1 and 53/8 are concerned, since there is an admission by the plaintiff to the effect that the properties are the joint family properties, the Trial Court shall afford the opportunity to the defendants to file counter claim in respect of Sy No.100/1 and 53/8 and in case the defendants file a counter claim claiming share in those properties, the defendants shall implead necessary parties to the said proceedings i.e., the persons who are interested or having right in the properties and afterwards, the Court shall hear the case on merits and pass appropriate orders. - 9 - NC: 2025:KHC-K:1934 RSA No. 7410 of 2011 13. It is however made clear that division to be made in the final decree proceedings in respect of Sy No.100/2 and 119/2 will be subject to further modification, subject to the result of counter claim. 14. With these observation, the following: ORDER i) The appeal is allowed in part. ii) The matter is remitted to the Trial Court, enabling the defendants to file counter claim in respect of Sy Nos.100/1 and 53/8 referred to above. On such counter claim, the plaintiff and other parties are to the counter claim are entitled to file the written statement. iii) It is further made clear that this Court has not expressed any opinion on merits of the claim of the parties in Sy No.100/1 and 53/8. iv) The defendants who file counter claim, shall also permitted to file application with a prayer to deposit admissible main profits in respect of counter claim - 10 - NC: 2025:KHC-K:1934 RSA No. 7410 of 2011 properties by way of interim measure. If such an application is filed, same shall be considered on merits in accordance with law. All contentions are kept open. v) The Final Decree Proceeding shall be permitted in respect of Sy No.100/2 and 119/2 as held in Paragraph No.10 and 11 of the Judgment. Sd/- (ANANT RAMANATH HEGDE) JUDGE THM List No.: 1 Sl No.: 46