- 1 - NC: 2025:KHC:10857 RSA No. 2092 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 2092 OF 2013 (PAR) BETWEEN: SMT MEENAKSHI W/O KAVERAPPA, D/O E.GOPALA REDDY, AGED ABOUT 30 YEARS, R/AT HEELALIGE VILLAGE, ATTIBELE HOBLI, ANEKAL TALUK, BANGALORE DISTRICT. …APPELLANT (BY SRI VISWANATH SETTY V., ADVOCATE) AND: 1. SHRI R NANJA REDDY S/O LATE DANDURAMAIAH @ RAMA REDDY, AGED ABOUT 66 YEARS, 2. SHRI E.GOPALA REDDY S/O LATE ERAPPA, AGED ABOUT 64 YEARS, RESPONDENT NOS.1 & 2 ARE R/AT HEELALIGE VILLAGE, ATTIBELE HOBLI, ANEKAL TALUK, BANGALORE DISTRICT. 3. SMT RENUKA W/O RAJAPPA, D/O E.GOPALA REDDY, AGED ABOUT 39 YEARS, 4. SMT.VISHALAKSHI D/O E.GOPALA REDDY, Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka - 2 - NC: 2025:KHC:10857 RSA No. 2092 of 2013 AGED ABOUT 33 YEARS, RESPONDENT NOS.3 & 4 ARE R/AT MUTHANALLUR VILLAGE, SARJAPURA HOBLI, ANEKAL TALUK, BANGALORE DISTRICT. 5. SHRI E.MUNI REDDY S/O LATE ERAPPA, AGED ABOUT 74 YEARS, R/AT HEELALIGE VILLAGE, ATTIBELE HOBLI, ANEKAL TALUK, BANGALORE DISTRICT. 6. SHRI D.M.DEVARAJ S/O MANCHEGOWDA, AGED ABOUT 57 YEARS, R/AT NO.6, ST.THOMAS SCHOOL ROAD, KUMARA PARK WEST, BANGALORE DISTRICT. …RESPONDENTS (BY SRI HARISH H.V., ADVOCATE FOR R1; R2, R3 AND R5 ARE SERVED BUT UNREPRESENTED; V/O DATED 31.01.2024 NOTICE TO R4 & R6 ARE D/W) THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE JUDGMENT DECREE DATED 29.8.2011 PASSED IN R.A.NO.175/2009 ON THE FILE OF THE II ADDL. DISTRICT JUDGE IN CHARGE JUDGE, FAST TRACK COURT-I, BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 16.9.2009 PASSED IN O.S.NO.254/2006 (OLD NO.292/1999) ON THE FILE OF THE CIVIL JUDGE (SR.DN) JMFC., ANEKAL. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC:10857 RSA No. 2092 of 2013 CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI ORAL JUDGMENT Challenging judgment and decree dated 29.08.2011 passed by II Addl. District Judge, Fast Track Court-I, Bengaluru Rural District, Bengaluru, in R.A.no.175/2009, this appeal is filed. 2. Brief facts as stated are appellant was plaintiff in O.S.no.254/2006 filed for relief of partition, separate possession of her share in suit schedule properties (for short 'suit properties') and for declaration of sale deeds dated 13.02.1995 and 30.08.1995 as not binding on plaintiff and for permanent injunction insofar as item no.4 and item no.2 of suit properties respectively. 3. In plaint, it was stated Sri Erappa of Heelalige village, ancestor of plaintiff/defendants had three sons through his wife Eramma, namely Sri E Narayana Reddy, E Muni Reddy (defendant no.4) and E Gopal Reddy (defendant no.1). It was stated, Erappa inherited various properties from his ancestors. After death of Erappa and Eramma, their three sons partitioned properties orally as 'A', 'B' and 'C' schedules respectively and - 4 - NC: 2025:KHC:10857 RSA No. 2092 of 2013 also got their respective names entered to their respective shares under IHC no.5/1994-95. It was stated, 'C' schedule properties fell to share of E Gopala Reddy (hereinafter referred to as 'suit properties'). He had three daughters, i.e. plaintiff, defendants no.2 and 3. As such they had shares in them. But under registered sale deed dated 13.02.1995, defendant no.4 purchased land bearing Sy.no.128 (item no.4 of suit properties) belonging to plaintiff and defendants no.1 to 3, and likewise, defendant no.6 purchased land bearing Sy.no.141/4 and 141/6 (items no.6 and 7 of suit properties) on 30.08.1995, respectively. 4. It was stated, plaintiff and defendants no.1 to 3 constituted Hindu Undivided Joint Family and joint family properties were not partitioned. She claimed, she was in peaceful possession and enjoyment of suit properties and cultivating same along with defendants no.1 to 3 and entitled for 1/4th equal share in them. It was stated, since plaintiff got married after amendment to Hindu Succession (Karnataka Amendment Act) 1990 and was assisting defendants no.1 to 3 in cultivation, they shared a portion of income with her. - 5 - NC: 2025:KHC:10857 RSA No. 2092 of 2013 5. It was stated defendant no.2 was married to Rajappa. Thereafter defendant no.1 started to neglect plaintiff, therefore she demanded her legal and legitimate share of 1/4th share and sold some of the properties without knowledge to plaintiff, defendants no.2 and 3. It was stated that later plaintiff came to know that defendant no.1 illegally executed registered sale deeds in favour of defendants no.5 and 6 in respect of land in Sy.no.128/1, 141/1 and 141/6. Defendant no.4 is none other than brother of defendant no.1 and same is not binding on plaintiff and take away right of 1/4th share in joint family properties. Hence, plaintiff filed suit. 6. On service, defendants no.1 to 4 and 6 did not contest suit, they were placed exparte. But, defendants no.5 and 7 appeared and only defendant no.5 filed written statement denying plaint averments. However, relationship with plaintiff was admitted. It was defendant no.5 - purchaser of Sy.no.128/1 i.e., item no.4 of suit schedule properties and 'C' schedule property was fallen to share of defendant no.1. Marriage of defendant no.2 was also admitted. Assertion about plaintiff assisting defendants in cultivation and sharing of income from lands with plaintiff was denied. - 6 - NC: 2025:KHC:10857 RSA No. 2092 of 2013 7. It was contended, plaintiff signed as witness in sale deed by defendant no.4 in favour of defendant no.5 in respect of item no.4 of suit property and also delivered possession. It was stated names were also mutated in revenue records in name of defendant no.5. Therefore, defendant no.5 was bonafide purchaser. It was further stated except dwelling house, defendant no.1 had sold all other properties and purchased rental properties at Kithaganahalli, therefore, plaintiff was not entitled for relief and sought dismissal of suit. 8. Based on pleadings, trial Court framed following: ISSUES: 1. Whether the plaintiff proves that the suit properties are the ancestral and joint family properties of plaintiff and defendant nos.1 to 3? 2. Whether the plaintiff proves that she has got right to share in the suit properties? 3. Whether the plaintiff proves that the sale deed dated 1302.1995 executed by 1st defendant in favour of 5th defendant in respect of the land bearing Sy.No.128/1 to an extent of 35½ guntas (item no.1) is not binding on the plaintiff? 4. Whether the plaintiff proves that the sale deeds dated 30.08.1995 executed by 1st defendant and 4th defendant in favour of 6th defendant in respect of land bearing Sy.No.141/10 to an extent of 15 guntas (item no.2) are not binding on her? 5. Whether the plaintiff proves that the sale deed dated 22.11.1999 executed by defendants no.1 to 3 in favour of 7th defendant in respect of the land bearing Sy.No.122 - 7 - NC: 2025:KHC:10857 RSA No. 2092 of 2013 measuring 1 acre 12½ guntas is not binding on the plaintiff? 6. Whether the 5th defendant proves that he is the bonafide purchaser of the item no.1 property? 7. Whether the court fee paid by the plaintiff is not correct? 8. Whether the plaintiff is entitled for any relief/reliefs? 9. What order or decree? 9. In support of her case, plaintiff examined herself as PW1 and got marked Exs.P.1 to P.18. In rebuttal defendant no.5 examined himself and two others as DWs.no.2 and 3 and marked Exs.D.1 to 3. 10. On consideration, trial Court answered issues no.1 to 4, 7 and 8 in affirmative; issue no.5 as not surviving for consideration; issue no.6 in negative and issue no.9 by decreeing suit, holding plaintiff entitled for partition and separate possession of her 1/4th share in suit properties, declaring sale deeds executed by defendant no.1 in favour of defendant no.5 and by defendants no.1 and 4 in favour of defendant no.6, respectively as not binding on plaintiff, and restraining defendants no.1, 5 and 6 etc. from alienating suit properties and dispossessing plaintiff etc. - 8 - NC: 2025:KHC:10857 RSA No. 2092 of 2013 11. Aggrieved, defendant no.5 filed R.A.no.175/2009 on various grounds and contentions insofar as item no.4, based on which first appellate Court framed following: :POINTS: 1. Whether the plaintiff is entitled for 1/4th share in the suit item no.4 i.e., Sy.no.128/1 measuring 35½ guntas? 2. Whether the registered Sale Deed dated 13.02.1995 executed in favour of defendant no.5 in respect of suit item no.4 is binding on the plaintiff? 3. Whether defendant no.5 is a bonafide purchaser of suit item no.4? 4. Whether the impugned judgment and decree in respect of suit item no.4 requires any interference i.e., whether the findings on issue no.2, 3, 6 and 8 rendered by the trial Court requires any interference? 5. What order? 12. On consideration, first appellate Court answered points no.1 to 4 in affirmative and point no.5 by allowing appeal, setting aside trial Court decree insofar as item no.4. 13. Sri Vishwanath Shetty V, learned counsel for plaintiff submitted appeal was questioning finding of first appellate Court excluding item no.4 from decree for partition and it's failure to note that marriage of plaintiff was after Hindu Succession (Karnataka Amendment) Act, 1990. - 9 - NC: 2025:KHC:10857 RSA No. 2092 of 2013 14. It was submitted, in suit for partition filed by plaintiff in respect of suit properties belonging to defendant no.1 - E Gopala Reddy, relationship of plaintiff with defendants no.1 to 3 as well as nature of suit properties as ancestral joint family properties were admitted. Though defendant no.5 claimed to be bonafide purchaser, same was not substantiated. It was submitted Hindu Succession (Karnataka Amendment) Act, 1990 came into effect from 30.07.1994. When plaintiff's marriage was not established to be prior to said amendment, she had right for equal share in ancestral properties. Therefore, sale deed executed on 13.02.1995 after said amendment ignoring right/interest of plaintiff, same was illegal. Therefore, substantial questions of law would arise for consideration and prayed for admitting appeal. 15. On other hand, Sri Harish HV, learned counsel for defendant no.5 submitted that appeal was devoid of merit. At out set, it was submitted defendant no.1 was father of plaintiff and defendants no.2 and 3 and after partition between children of Erappa, was karta of joint family constituted with plaintiff and defendants no.2 and 3. Further, in sale deed dated 13.02.1995 in respect of item no.4, there was specific recital - 10 - NC: 2025:KHC:10857 RSA No. 2092 of 2013 about alienation being for family necessity. Apart from above, in her cross-examination, PW.1 admitted that from sale consideration of item no.4 of suit property, defendant no.1 had purchased properties with rental income, therefore purchased properties were also joint family properties. She admitted that they were not included in suit schedule. She also admitted said properties were yielding rental income. Therefore, plaintiff challenge of sale deed as not for legal necessity was baseless. 16. Insofar as contention based on State Amendment to Hindu Succession Act, it was submitted, same was eclipsed by later central amendment by Act no.39 of 2005. It was further contended, plaintiff had joined defendants no.1 to 3 in execution of sale deed dated 30.08.1995, by defendant no.4 in respect of item no.4, in favour of defendant no.5. It was therefore submitted, in view of proviso to Section 6 (1) any disposition or alienation taken place before 20.12.2004 was saved. On said grounds sought for dismissal. 17. Heard learned counsel and perused impugned judgment and decree. - 11 - NC: 2025:KHC:10857 RSA No. 2092 of 2013 18. This appeal is by plaintiff challenging modification of decree for partition granted by trial Court insofar as item no.4 of suit properties. 19. There is no dispute about nature of suit properties or about plaintiff forming joint family with defendants no.1 to 3. While passing judgment and decree, trial Court noted defence set up by defendant no.5 was about plaintiff joining defendants no.1 to 3 in selling item no.4 of suit properties, that defendant no.5 was bonafide purchaser for value in possession and his name entered in revenue records and since all suit properties were sold, there were no properties remaining nullifying plaintiff's claim for partition. 20. While giving its finding on issues no.3, 4 and 6, trial Court observed recitals in Es.P.10 and 12 - sale deeds referred to properties therein as ancestral joint family properties of defendant no.1 (seller). It observed Exs.P.3 to P.8 referred to oral partition between children of Erappa and suit properties falling to share of defendant no.1. 21. It also referred to deposition of DW.1 that plaintiff along with her sister and mother were witnesses to Ex.D.1 - - 12 - NC: 2025:KHC:10857 RSA No. 2092 of 2013 sale deed dated 13.02.1995. But, on perusal of Ex.D.1, it noted plaintiff was not a signatory. On the said finding, it held sale deeds - Exs.P.10 to 12 as not binding on plaintiff and defendant no.5 was not bonafide purchaser. On said finding it granted decree for partition. 22. In appeal, first appellate Court noted, PW1 admitted in cross-examination that she as well as her sisters were educated, that defendant no.1 had sold all suit properties and from said amount, purchased sites at Hebbagodi and Kithaganahalli and from houses constructed therein, defendant no.1 was continuous rental income. It also noted her admission that said properties were not included in suit plaint. It observed plaintiff also admitted that she does not have any right over item no.4 of suit properties purchased by defendant no.5. 23. First appellate Court thereafter referred to deposition of DW.1 claiming to be bonafide purchaser and DWs 2 and 3 stating that with money received from sale of properties, defendant no.1 had purchased sites, constructed houses and was getting income. Apart from above, it referred to Hindu Succession (Amendment) Act, 2005, had overriding effect over State amendment and contained bar against - 13 - NC: 2025:KHC:10857 RSA No. 2092 of 2013 challenging any disposition or alienation prior to 20th of December, 2004. 24. Based on said findings, it allowed appeal and modified trial Court decree only insofar as item no.4 of suit properties. 25. Thus, it is seen, first appellate Court has on re- appreciation of entire evidence and after taking note of defence about defendant no.5 being bonafide purchaser corroborated by specific recital in impugned sale deed as well as admission that from sale of joint family property, defendant no.1 as karta of joint family, purchased sites, put up construction and was deriving rental income therefrom, concluded that sale in favour of defendant no.5 was not illegal and that defendant no.5 was bonafide purchaser. Said finding is by referring to material on record and cannot be held to be perverse. 26. Hon'ble Supreme Court in Vijay A. Mittal v. Kulwant Rai, reported in (2019) 3 SCC 520, has held karta can alienate suit property subject to restriction namely, for legal necessity and for protection of estate. But, instant case, plea of sale being without legal necessity was neither pleaded nor - 14 - NC: 2025:KHC:10857 RSA No. 2092 of 2013 evidence led to substantiate same, thus said contention doest not arise for consideration. 27. In any case, in view of specific bar in proviso to Section 6(1) of Hindu Succession(Amendment) Act, 2005, alienation dated 13.02.1995 in favour of defendant no.5 cannot be questioned. 28. Wherefore, no substantial question of law arises for consideration. Hence, appeal is dismissed. Sd/- (RAVI V HOSMANI) JUDGE psg* List No.: 1 Sl No.: 35