- 1 - NC: 2025:KHC:16272 RFA No. 1492 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE M.I.ARUN REGULAR FIRST APPEAL NO. 1492 OF 2021 (PAR) BETWEEN: 1. GOWRAMMA W/O LATE RAJU @ NAGARAJU AGED ABOUT 64 YEARS 2. SOWMYA D/O LATE RAJU @ NAGARAJU AGED ABOUT 35 YEARS 3. SUMANTH S/O LATE RAJU @ NAGARAJU AGED ABOUT 30 YEARS 4. SUJITH S/O LATE RAJU @ NAGARAJU AGED ABOUT 33 YEARS ALL ARE R/AT NO.15 SANJEEVAPPA LANE KAVENE REVANNA SHETTY PETE AVENUE ROAD CROSS BENGALURU-560 002. …APPELLANTS (BY SRI. L.SREEKANTA RAO, ADVOCATE) AND: 1. SRI. CHIKKANNA S/O SAMPANNA SINCE DEAD BY HIS LRs Digitally signed by H K HEMA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:16272 RFA No. 1492 of 2021 1(a) SMT. LAKSHMAMMA W/O LATE CHIKKANNA AGED ABOUT 65 YEARS 1(b) SRI. RAJU S/O LATE CHIKKANNA AGED ABOUT 50 YEARS 1(c) SRI. NAGARAJA S/O LATE CHIKKANNA AGED ABOUT 45 YEARS 1(d) SRI. KRISHNA S/O LATE CHIKKANNA AGED ABOUT 39 YEARS 1(e) DEEPA D/O LATE CHIKKANNA AGED ABOUT 34 YEARS RESPONDENT NOs.1 TO 5 ARE R/AT NO.227, 3RD CROSS SRINIVASANAGAR BANGALORE-79. 2. 2(a) SRI. BEERAPPA S/O LATE NARAYANASWAMAPPA DECEASED ON 19.09.2007 REP. BY LRs. PUTTAMALLAMMA W/O LATE BEERAPPA AGED ABOUT 75 YEARS 2(b) 2(b)(a) B. BHOJARAJ S/O LATE BEERAPPA SINCE DEAD BY HIS LRs. SMT. DEVIKA W/O LATE B.BHOJARAJ AGED ABOUT 55 YEARS 2(b)(b) SRI. CHETHAN - 3 - NC: 2025:KHC:16272 RFA No. 1492 of 2021 S/O LATE B.BHOJARAJ AGED ABOUT 35 YEARS 2(b)(c) SRI. CHANDAN S/O LATE B.BHOJARAJ AGED ABOUT 32 YEARS 2(b)(d) SMT. CHITHRA D/O LATE B.BHOJARAJ AGED ABOUT 30 YEARS 2(c) B.SHASHIKUMAR S/O LATE BEERAPPA AGED ABOUT 58 YEARS RESIDING AT NO.340/10 2ND 'C' CROSS, 1ST MAIN VIJAYANAGAR BANGALORE-560 040. 3. 3(a) SRI. RAMAKRISHNA S/O LATE NARAYANASWAMAPPA SINCE DEAD REP BY HIS LRs. SMT. KAMALAMMA W/O LATE RAMAKRISHNA AGED 72 YEARS 3(b) SRI. PRAKASH S/O LATE RAMAKRISHNA AGED 55 YEARS 3(c) SRI. GURUPRASAD S/O LATE RAMAKRISHNA AGED 53 YEARS 3(d) SRI. HEMANTH KUMAR S/O LATE RAMAKRISHNA AGED 51 YEARS 3(e) SRI. VASUDEVA S/O LATE RAMAKRISHNA AGED 49 YEARS - 4 - NC: 2025:KHC:16272 RFA No. 1492 of 2021 ALL ARE R/AT NO.15 SANJEEVAPPA LANE, KAVENE REVANNA SHETTY PETE AVENUE ROAD CROSS BANGALORE-560 002. 4. 4(a) GOPI S/O LATE NARAYANASWAMAPPA SINCE DEAD BY HIS LRs. SMT. CHIKKAMMA W/O LATE GOPI AGED ABOUT 70 YEARS 4(b) SMT. SHANTHA D/O LATE GOPI AGED 48 YEARS 4(c) SMT. HEMAVATHI D/O LATE GOPI AGED ABOUT 46 YEARS ALL ARE R/AT NO.15 SANJEEVAPPA LANE, KAVENE REVANNA SHETY PETE AVENUE ROAD CROSS BANGALORE-560 002. 5. SRI. UMASHANKAR AGED 64 YEARS S/O NARANAYASWAMAPPA 6. SMT. RANGAMMA W/O LATE SRI. NARAYANASWAMAPPA SINCE DEAD REP (BY HER LRs WHO ARE APPELLANTS AND RESPONDENT NO.20) 7. SMT. RAJAMMA W/O LATE SAMAPNNA AND MOTHER OF PLANTIFF - 5 - NC: 2025:KHC:16272 RFA No. 1492 of 2021 (SINCE DEAD REP BY HER LRs WHO ARE THE PLANTIFFS HEREIN) 8. SMT. SUSHILAMMA AGED 46 YEARS D/O SRI. SAMPANNA AND SISTER OF PLANTIFF S/O SMT. RAJAMMA THE DEFENDANT NO.7 ABOVE NAMED. (SINCE DEAD BY HR LRs WHO ARE THE PLAINTIFFS HEREIN) …RESPONDENTS (BY SRI. RAVISHANKAR S., ADVOCATE FOR C/R1(A TO E); SRI. M.V.VEDACHALA, ADVOCATE FOR R2(A) & R(B) (A TO E); SRI. B.S.MANJUNATH, ADVOCATE FOR R3(A TO E); SRI. T.M.CHOWDA REDDY, ADVOCATE FOR R4(A TO C); R7 & R8 ARE DEAD, REPRESENTED BY R1; NOTICE TO R5 DISPENSED WITH VIDE ORDER DATED 06.02.2024; R5 IS TREATED AS LR OF DECEASED R6) THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO CALL FOR RECORDS IN O.S.NO.2488/1981 PASSED BY THE XXV ADDL. CITY CIVIL & SESSIONS JUDGE (C.C.H-23), BANGALORE DATED 06.11.2020 AND SET ASIDE THE JUDGMENT AND DECREE PASSED IN O.S.NO.2488/1981 ON THE FILE OF THE XXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (CCH-23) BANGALORE DATED 06.11.2020. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 6 - NC: 2025:KHC:16272 RFA No. 1492 of 2021 CORAM: HON'BLE MR JUSTICE M.I.ARUN ORAL JUDGMENT Aggrieved by the judgment and decree dated 06.11.2020 passed in O.S.No.2488/1981 on the file of XXV Addl. City Civil & Sessions Judge, Bangalore, the legal representatives of deceased defendant No.4 therein have preferred this appeal. 2. For the sake of convenience, parties are referred to as per their status before the trial Court. 3. O.S.No.2488/1981 is a suit for partition and separate possession filed in respect of suit schedule properties with the following prayers: "WHEREFORE, the plaintiff prays that this Hon'ble Court be please to pass a decree against the defendants 1 to 6 declaring: a) That the plaintiff and the defendants 7 and 8 are entitled to half of the share in the suit schedule properties. b) That the share of the plaintiff and the defendants 7 and 8 be partitioned and the plaintiff be placed in possession of the - 7 - NC: 2025:KHC:16272 RFA No. 1492 of 2021 separated half share and to them in possession of their separated half share in the suit schedule properties. c) To hold an enquiry into the mattes of measne profits under Order 20 Rule 12 of Code of civil procedure and also direct the defendants 1 to 6 to render accounts regard to rents or measne profits received by them in respect of the schedule property. d) To award court costs and such other reliefs that the Hon'ble Court may deem fit in the circumstances of the case." 4. The suit schedule properties consist of two properties, which are described as here under: "SCHEDULE 1. Housed property bearing No.15, Sanjeevappa Lane, Kavene Revanna Shetty Pete, Avenue Road Cross, Bangalore-560 002, bounded on the: East by : Road West by : Puttappa's house North by : Puttappa's house South by : Gavi Siddappa's house 2. Housed property bearing No.20, Sanjeevappa Lane, Kavane Revanna Shetty Pete, Avenue - 8 - NC: 2025:KHC:16272 RFA No. 1492 of 2021 Road Cross, Bangalore-560 002, bounded on the: East by : Veddara Annayyappa's house West by : Puttappa's house North by : Mudda Rangappa's house South by : Sanjeevappa land" 5. The trial Court based on the pleadings made by the parties including the written statement filed by defendant No.4, has framed the following issues: "ISSUES (1) Whether the suit properties are the joint properties or joint family properties? (2) Whether the plaintiff is in joint possession of the suit properties? (3) Whether suit schedule No.2 property was subject matter of suit O.S.No.422/64? (4) Whether judgment and decree in O.S.No.422/64 in respect of S.No.1 suit schedule property of that suit is not binding on these defendants? (5) Whether the suit of plaintiff for partition of suit schedule property item No.2 as joint family property is barred by the judgment and decree in O.S.No.422/64? - 9 - NC: 2025:KHC:16272 RFA No. 1492 of 2021 (6) Whether defendant No.1 and 3 have acquired title to the suit properties by adverse possession? (7) Whether deceased Kempamma has gifted the suit schedule item No.2 property in favour of defendant No.2 under the gift deeds dated 10.12.65 and 26.10.72? (8) Whether deceased Kempamma has bequeathed the suit schedule property item No.1 by her registered Will deed? (9) Whether deceased Kempamma had entered into agreement of sale deed 27.7.1963 in favour of Narayanaswamy in respect of suit schedule properties? (10) If so, whether the purchaser was put in possession in part performance of agreement of sale? 10(a) Whether plaintiff and defendant No.7 & 8 are entitled for any share in the suit properties? 10(b) If so, what are the shares of the parties and what are the properties liable for partition? (11) Whether the suit is properly valued? (12) For what relief the parties are entitled? Additional issue dated 20.2.2020: (1) Whether the Will dated 25.5.1958 is a concocted and fabricated document? - 10 - NC: 2025:KHC:16272 RFA No. 1492 of 2021 Recasted Issue dated 29.9.2020: (1) Whether the Will dated 25.5.1958 is proved in accordance with law?" 6. In support of plaintiffs' case, the plaintiffs have got examined two witnesses and have got marked Exs.P1 to P11, whereas, defendants have got examined five witnesses and got marked Exs.D1 to D9. Based on the pleadings and the evidence let in, the trial Court has answered the aforementioned issues as follows: "20. My findings to the above issues are as under: Issue No.1 : In the Affirmative Issue No.2 : In the Affirmative Issue No.3 : In the Negative Issue No.4 : Does not survive for consideration Issue No.5 : In the Negative Recasted Issue No.6 : In the Negative Issue No.7 : In the Negative Issue No.8 : Does not survive for consideration Issue No.9 : In the Negative Issue No.10 : In the Negative Issue No.10(a) : Entitled for 1/2 share in the suit schedule property - 11 - NC: 2025:KHC:16272 RFA No. 1492 of 2021 Issue No.10(b) : 1/2 share in the suit schedule property Issue No.11 : In the negative Recasted Addl. Issue No.1 : In the Negative Issue No.12 : As per final order for the …………" 7. The trial Court has passed the following order: "ORDER The suit of the plaintiffs is decreed. P1(a) to (e), the legal heirs of deceased plaintiff are entitled for half share in the suit schedule item No.2 and entitled for possession of half share. Their claim for mesne profit is rejected. It is made it clear that this court already decreed the suit in so far as the suit schedule item No.1 is concerned and the judgment and decree passed by this court dated 16.3.2002 is already confirmed by the Hon'ble High Court of Karnataka in RFA No.686/2002 c/w RFA No.810/2002 in so far as item No.1 is concerned. Parties shall bear their own cost. Draw preliminary decree." 8. The present appeal is filed only by the legal representatives of defendant No.4 and the other parties - 12 - NC: 2025:KHC:16272 RFA No. 1492 of 2021 have accepted the decision of the trial Court. Defendant Nos.4(a) to 4(d)/appellants herein are aggrieved only in respect of item No.2 of the suit schedule property, wherein, it is contended that the plaintiffs have no right over the said item No.2 of the suit schedule property and the trial Court erred in granting 50% of right in favour of the plaintiffs regarding the same. 9. Thus, in the instant appeal, the question which is required to be answered is whether the plaintiffs are entitled to 50% of the share as decreed by the trial Court in item No.2 of the suit schedule property or only the legal representatives of one late Narayanaswamy are entitled to the entire item No.2 property as contended by the appellants herein. 10. Admittedly, the parties are related to one another. The properties concerned belonged to one late Kempamma, who is no more. The undisputed genealogical tree of late Kempamma is as follows: - 13 - NC: 2025:KHC:16272 RFA No. 1492 of 2021 "GENEALOGICAL TREE Beerappa Kempamma Sampanna - Rajamma (Wife) Narayanaswamy Chikkanna (Son) Kalamma(I Wife) Rangamma(II Wife) Susheelamma (Daughter) 1.Beerappa(Son) 1.Nagarajua(Son) 2.Ramakrishna(Son) 2.Umashanjar(Son) 3.Gopalkrishna(Son)" 11. Defendant Nos.4(a) to 4(d)/appellants herein are the grandsons of late Kempamma through Narayanaswamy. Plaintiffs are the legal representatives of another son of Kempamma i.e. Sampanna. 12. Admittedly, item No.2 of the suit schedule property is the self acquired property of late Kempamma. In the absence of any document conferring exclusive right in favour of any person, based on law of inheritance, both the sons of Kempamma would be entitled to equal share in - 14 - NC: 2025:KHC:16272 RFA No. 1492 of 2021 the property and thus, plaintiffs who claimed to be the legal representatives of the first son of Kempamma would be entitled to 50% share in the property with the other 50% ownership falling to the share of legal representatives of Narayanaswamy, who is the second son of Kempamma. The trial Court based upon the evidence let in, has come to the said conclusion and has held that plaintiffs are entitled to 50% of the share in item No.2 of the suit schedule property. 13. However, it is contended by defendant Nos.4(a) to 4(d)/appellants herein that the plaintiffs have no share on the suit schedule property and the entire property fell to the share of Narayanaswamy and his legal representatives. They have based their claim upon an unregistered agreement of sale dated 27.07.1963 said to have been executed by late Kempamma in favour of her second son Narayanaswamy in respect of item No.2 of the suit schedule properties. Reliance is also placed upon decision of this Court in RFA No.686/2002. Based on the - 15 - NC: 2025:KHC:16272 RFA No. 1492 of 2021 same, it is contended that the legal representatives of Narayanaswamy who are the owners of item No.2 of the suit schedule properties and that the plaintiffs have no right over the same. 14. In respect of defence taken by defendant Nos.4(a) to 4(d), it has been pleaded in written statement as follows: "8. Regarding Para 8 of the pliant: It is true Kempamma died in the year 1973. But long before her death the rights, if any, she had in the properties had been transferred to and vested in Narayanaswamy by virtue of an agreement to sell dated 27-7-1963. Narayanaswamy had been put in possession thereof and thereafter enjoyed the properties in his own right as a owner in pursuance to the part performance of the said agreement to sell. Sale deed as such was not executable by Smt. Kempamma as one of the items was subject to the litigation in O.S.No.422/64. The litigation was terminated long after the agreement and Smt. Kempamma died on 1-9-1973 and the final decree was ordered on 20-8-1973 and was drawn up and signed on 12-9-1973. As such a - 16 - NC: 2025:KHC:16272 RFA No. 1492 of 2021 formal sale deed could not be executed by Kempamma. All these facts are well within the knowledge of the plaintiff. The sale otherwise is complete. These defendants have been enjoying the properties in their own rights to the exclusion of Kempamma and later Narayanaswamy and have perfected their rights over the same by adverse possession. Hence this suit is liable to be dismissed in limine with costs. In view of the above, plaintiff is not a legal heir of late Kempamma nor are the defendants 7 & 8. None of them has any rights over the suit properties and their claim is specifically denied as false." 15. In pursuance of the said pleadings, the unregistered sale agreement is marked as Ex.D8. 16. Reliance is also placed on the observations made by this Court on the said document in RFA.No.686/2002. The said dispute pertains to property which is the subject matter of Ex.D8 between wife and children of deceased Narayanaswamy and plaintiffs were not made parties to the proceedings. It is further noticed - 17 - NC: 2025:KHC:16272 RFA No. 1492 of 2021 that one of the sons of deceased Narayanaswamy claimed exclusive right over the property concerned on the ground that a gift deed was executed in his favour by late Kempamma. The said gift deed has been held to be invalid and it has attained finality. The dispute did not pertain to validity of the sale agreement at Ex.D8 in the instant case or the rights gained by the legal representatives of late Narayanaswamy on the strength of the said document. Under the said circumstances, it has to be observed that any observation made in RFA.No.686/2002 does not come to the rescue of defendant Nos.4(a) to 4(d)/appellants herein. 17. Admittedly, Ex.D8 is an agreement to sell. It records that late Narayanaswamy had been put in possession of the property concerned. It also records that the sale consideration agreed upon in respect of all the properties mentioned in the said document is Rs.5,000/-, out of which, late Narayanaswamy is said to have paid Rs.4,000/- and balance Rs.1,000/- is still remaining to be - 18 - NC: 2025:KHC:16272 RFA No. 1492 of 2021 paid. It is a settled proposition of law that on the strength of an agreement to sale, the intending purchaser cannot claim ownership rights over the property concerned and he will become the owner only after execution of the sale deed and not otherwise. Further, the plaintiffs have disputed the execution of sale agreement. 18. The trial Court has not given a ruling on the validity of the sale agreement, as it deemed it is not necessary in the light of a sale deed having not been executed in favour of late Narayanaswamy or his legal representatives in pursuance of the said sale agreement and as the original suit was filed to decide the dispute on hand, validity of sale agreement was not required to be gone into. 19. Admittedly, defendant Nos.4(a) to 4(d)/appellants have not enforced the sale agreement based on which they are claiming a right over the property. Under the said circumstances, it has to be held that Kempamma did not alienate item No.2 of the suit - 19 - NC: 2025:KHC:16272 RFA No. 1492 of 2021 schedule properties in favour of her second son late Narayanaswamy or his legal representatives and thus the plaintiffs, given the fact that they are the legal representatives of the first son of Kempamma, are entitled to 50% share in the item No.2 of suit schedule properties, however subject to any rights that legal representatives of Narayanaswamy may claim pursuant to the alleged sale agreement if they have any, by enforcing the same before appropriate Court. Under the said circumstances, I do not see any error in the well reasoned order of the trial Court and the appeal is hereby dismissed accordingly. Sd/- (M.I.ARUN) JUDGE PGG List No.: 2 Sl No.: 32