- 1 - NC: 2025:KHC:11113 RSA No. 469 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 469 OF 2016 (PAR) BETWEEN: 1. LATE MUDDAIAH (SINCE DEAD BY LRS) 1(A). SMT. SAKAMMA, W/O LATE MUDDAIAH, MAJOR. 1(B). SRI. SHIVANANJIAH, SO LATE MUDDAIAH, MAJOR. 1(C). SRI. KRISHNAPPA, S/O LATE MUDDAIAH, MAJOR. 1(D). SMT. LAKSHMAMMA, D/O LATE MUDDAIAH, MAJOR, R/AT NO.41, NEAR WATER TANK, VADERAHALLI, RAMANAGARA - 562 159. 2. PUTTAIAH, S/O LATE NANJEGOWDA, MAJOR, R/AT VADDERAHALLI VILLAGE, Digitally signed by B VEENA KUMARI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:11113 RSA No. 469 of 2016 KASABA HOBLI, RAMANAGARA TALUK, RAMANAGARA DISTRICT - 571 511. …APPELLANTS (BY SRI. A.S. MAHESH, ADVOCATE) AND: 1. SMT. MAYAMMA W/O LATE CHANNAPPA, MAJOR, 2. SRI. LOKESH S/O LATE CHANNAPPA, MAJOR, 3. SRI. MUDDARAJU S/O LATE CHANAPPA, MAJOR, 4. SMT. SHUMALATHA D/O LATE CHANNAPPA, MAJOR, RESPONDENTS NO. 1 TO 4 R/O C/O LAKSHMI MEDICALS AND GENERAL STORES, DODDABYLEKERE VILLAGE, SHIVAKOTE POT, BANGALORE NORTH TALUK - 567 801. 5. SRI. RAMANNA S/O LATE NANJEGOWDA, MAJOR. 6. SRI. SHIVANNA S/O LATE NANJEGOWDA, - 3 - NC: 2025:KHC:11113 RSA No. 469 of 2016 MAJOR, RESPONDENTS NO.5 AND 6 R/A GOPALAHALLI VILLAGE, BIDADI HOBLI, RAMANAGARA TALUK AND DISTRICT. 7. SMT KENCHAMMA (SINCE DEAD BY LR'S) 7(A). SMT. GOWRAMMA, D/O LATE KENCHAMMA, AGED ABOUT 65 YEARS, 7(B). SMT. PARVATHAMMA, D/O LATE KENCHAMMA, AGED ABOUT 61 YEARS, 7(C). LATE BYRAPPA, S/O LATE KENCHAMMA, (SINCE DEAD BY LRS) 7(1)(C). VENKATAMMA, W/O LATE BYRAPPA, AGED ABOUT 57 YEARS, 7(2)(C). HARISH, S/O LATE BYRAPPA, AGED ABOUT 39 YEARS, 7(3)(C). VIJAYA, D/O LATE BYRAPPA, AGED ABOUT 35 YEARS, ALL 7(1)(C) TI 7(3)(C) ARE R/AT - 4 - NC: 2025:KHC:11113 RSA No. 469 of 2016 NO. 172/A, 6TH CROSS, VINAYAKANAGAR, RAMANAGARA, RAMANAGARA TALUK - 562 159. 8. LATE SMT. NANJAMMA (SINCE DEAD BY LR'S) 8(1). SRI. CHANDRAPPA, S/O LATE NANJEGOWDA, MAJOR. 8(2). PUTTASWAMAIAH, S/O LATE NANJEGOWDA, MAJOR. 8(3). RAMAIAH, S/O LATE NANJEGOWDA, MAJOR, 8(4). KRISHNAPPA, S/O NANJEGOWDA, MAJOR, ALL ARE R/AT CHIKKA ARASANAHALLI VILLAGE, M.G. PALYA POST, BIDADI HOBLI, RAMANAGARA TALUK & DISTRICT - 571 511. 9. SMT. PUTTAMMA (SINCE DEAD BY LR'S) 9(A). RAMESH S/O VENKATAPPA, MAJOR, 9(B). KRISHNAIAH ALIAS KRISHNA - 5 - NC: 2025:KHC:11113 RSA No. 469 of 2016 S/O VENKATAPPA, MAJOR, 9(C). MANGAMMA, W/O VATTAPPA, MAJOR ALL ARE RESIDING AT KARIKALADODDI VILLAGE, MARALAWADI HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT - 571 511. 10. SRI KATARI GOWDA S/O VENKATARAJU, MAJOR 11. SRI. VENKATARAJU S/O KATARIGOWDA, MAJOR, 12. SMT. KEMAPAMMA D/O KATARIGOWDA, MAJOR, 13. SRI. GOVINDA S/O KATARIGOWDA, MAJOR, RESPONDENTS NO.10 TO 13 R/AT BYREGOWDANADODDI VILLAGE, MARALAWADI HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT - 571 511. …RESPONDENTS (BY SRI. H.R. SHRIDHARAMURTHY, ADVOCATE FOR R5, R6, R7(A AND B), R7[(C) (1 TO 3)], R8(1 TO 4), R9(A TO C) AND R10 TO R12; SRI. K. MURTHY, ADVOCATE FOR R1 TO R4) - 6 - NC: 2025:KHC:11113 RSA No. 469 of 2016 THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST JUDGMENT AND DECREE DATED 2.2.2016 PASSED IN RA NO.36/2009 ON THE FILE OF THE 3RD ADDITIONAL DISTRICT & SESSIONS JUDGE, RAMANGARA PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 31.1.2009 PASSED IN OS NO.38/1992 ON THE FILE OF THE LEARNED ADDL. CIVIL JUDGE SR.DIV RAMANAGARAM, RAMANGARAM DISTRICT. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 02.02.2016 passed in R.A No.36/2009 by the learned III Additional District and Sessions Judge, Ramanagara, confirming the judgment and preliminary decree dated 31.01.2009 passed in O.S. No.38/1992 by the learned Additional Civil Judge, (Senior Division), Ramanagara. 2. For convenience, the parties are referred to, as per their rankings before the Trial Court. The appellants - 7 - NC: 2025:KHC:11113 RSA No. 469 of 2016 were the defendant Nos.1 and 2, respondents No.1 to 4 are the legal representatives of the deceased plaintiff and the other respondents were the defendants. 3. Brief facts, leading rise to the filing of this appeal are as follows:- The plaintiff filed a suit against the defendants for partition and separate possession. It is a case of the plaintiff that, the plaintiff and defendants are the brothers and sons' of one Nanjegowda. The suit schedule properties items Nos.1 to 8 originally belonged to the plaintiff's father and defendants, who purchased items Nos.3 to 7 from one Peer Sab under a registered sale deed dated 30.02.1957. Item Nos.1, 2 and 8 are the ancestral properties. The said Nanjegowda sold the other properties and purchased items Nos.3 to 7, so all other properties are ancestral and joint family properties. The plaintiff and defendants are in joint possession and enjoyment of the suit schedule properties. The plaintiff had a paralysis stroke about eight years back, and the properties were being managed by defendant - 8 - NC: 2025:KHC:11113 RSA No. 469 of 2016 No.1. The plaintiff demanded his share from defendant No.1. Defendant No.1 denied to effect any division. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accodingly, prays to decree the suit. 4. Defendant Nos.1 to 4 have filed their written statement admitting the relationship, but denied that the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants. It is contended that Nanjegowda had purchased the suit properties, and items Nos.1, 2 and 8 are the ancestral properties. It is admitted that the plaintiff suffered paralysis. It is denied that the defendants have not taken care of the plaintiff. It is contended that the katha stood in the name of defendant No.1. The plaintiff and defendants have already effected a partition of the suit schedule properties and other ancestral properties on 02.12.1988 as per panchayath parikath. The plaintiff was unable to put his signature due to a paralysis stroke, and his wife had - 9 - NC: 2025:KHC:11113 RSA No. 469 of 2016 affixed her LTM on the said panchayath parikath on behalf of the plaintiff. It is contended that the plaintiff, defendant Nos.3 and 4 have given up their rights in favour of defendants No.1 and 2 concerning the joint family properties on receiving cash consideration. Defendants No.3 and 4, along with the plaintiff have, sold Sy.No.6/3 to one Kempamma in 1977, which was the ancestral property, and the said property was not included in the suit. Hence, a suit for Non joinder of necessary property is not maintainable. It is also contended that defendants No.3 and 4 jointly executed a registered relinquishment deed in favour of defendant No.1 and released their rights as per the deed dated 18.09.1992. It is contended that, the partition deed has been acted upon by the plaintiffs are defendants. Hence, prays to dismiss the suit. 5. The Trial Court, based on the pleadings of the parties, framed the following issues:- 1. Whether the plaintiff proves that all the suit schedule properties are the joint family properties of the parties to the suit? - 10 - NC: 2025:KHC:11113 RSA No. 469 of 2016 2. Whether the defendants prove that there was a partition between the parties to the suit on 02.01.1988 as per the panchayati palu parikathu and plaintiff has given up his right to the 1/5th share in the suit schedule properties in favour of 1st and 2nd defendant by receiving money consideration from them? 3. Whether plaintiff has filed this suit without any cause of action? 4. Whether plaintiff is entitled to the reliefs sought for in this suit? 5. What decree or order? 6. The plaintiff, to substantiate this case, one of the legal representatives of the plaintiff was examined as PW- 1, examined three witnesses as PW-2 to PW-4, and marked 9 documents as Ex.P-1 to P-9. On the other hand, defendant No.1's power of attorney holder, was examined as DW-1, examined 5 witnesses as DW-2 to 6, and marked 21 documents as Ex.D-1 to D-21. 7. The Trial Court, after recording the evidence, hearing on both sides, and on the assessment of oral and documentary evidence, answered issue Nos.1 and 4 in the affirmative, issue Nos.2 and 3 in the negative, and in the - 11 - NC: 2025:KHC:11113 RSA No. 469 of 2016 result, the suit of the plaintiff was decreed with costs holding that the plaintiff and defendants are each entitled to 1/9th share, and ordered for partition and separate possession, accordingly. 8. Defendants No.1 and 2, aggrieved by the judgment and preliminary decree passed by the Trial Court, preferred an appeal in R.A. No.36/2009 on the file of III Additional District and Sessions Judge, Ramanagara. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration. 1. Whether the appellants/defendants have proved that there was a partition deed dated 02.12.1988 and division of properties between the plaintiff and defendants? 2. Whether the impugned judgment and decree passed by the Trial Court is erroneous, perverse, capricious and arbitrary? 3. Whether the findings recorded by the Trial Court are not sustainable in the eye of law on facts of the case? 4. Whether there are reasonable and sufficient grounds to interfere with the findings recorded by the lower court? - 12 - NC: 2025:KHC:11113 RSA No. 469 of 2016 5. What order? 9. The First Appellate Court, on the reassessment of oral and documentary evidence, answered point Nos.1 and 2 in the negative, point Nos.3 and 4, partly in the affirmative and point No.5 as per the final order, the appeal was partly allowed vide judgment dated 02.02.2016. The judgment and decree passed by the Trial Court in O.S. No.38/1992 dated 31.01.2009 on the file of Additional Senior Civil Judge, Ramanagara was modified. It is declared that the plaintiff and defendants No.1 to 4 each are entitled to 10/54th share. The daughters, defendants No.5 to 7 each, and defendants No.8 to 11, together entitled to 1/54th share. Defendant Nos.1 and 2, aggrieved by the impugned judgments, filed this Regular Second Appeal. 10. Heard the arguments of the learned counsel for defendants No.1 and 2, and the learned counsel for defendant Nos.3 and 4. - 13 - NC: 2025:KHC:11113 RSA No. 469 of 2016 11. Learned counsel for defendants No.1 and 2 submits that defendants No.3 and 4 executed a registered relinquishment deed relinquishing their right in the suit schedule properties in favour of defendant No.1, and executed a registered relinquishment deed marked as Ex.D-3. Defendants No.3 and 4, after having relinquished their right in favour of defendant No.1, the Courts below have committed an error in granting a share to defendants No.3 and 4 and further, both the Courts below have not taken into consideration Ex.P-3. He also submits that defendants No.3 and 4 have not challenged Ex.D-3. Ex.D-3 remained unchallenged. The said document is registered and the Courts below ought to have drawn presumption regarding the execution of Ex.D-3. The Courts below have committed an error in passing the impugned judgments. Hence, on these grounds he prays to allow the appeal. 12. Per contra, learned counsel for defendants No.3 and 4 submits that defendant No.1 played a fraud on - 14 - NC: 2025:KHC:11113 RSA No. 469 of 2016 defendants No.3 and 4 and obtained a signature LTM on Ex.D-3. He further submits that the said Ex.D-3 is the outcome of fraud. Hence, he submits that the Courts below were justified in passing an impugned judgments. Hence, he also submits that in view of the law laid down by the Hon'ble Apex Court in case of Vineeta Sharma - vs- Rakesh sharma reported in AIR 2020 SC 3717, he submits that, if the Court comes to a conclusion that defendants No.3 and 4 have executed a relinquishment deed in favour of defendant No.1, there would be a variation in the shares, hence, he submits that the liberty be reserved to the legal representatives of defendants No.5 to 7 to make an application in the FDP proceedings for modification of the shares as per the law laid down by the Hon'ble Apex Court in case of Ganduri Koteshwaramma and another -vs- Chakiri Yanadi and another reported in AIR 2012 SC 169 and in the case of Prema -vs- Nanje Gowda and others reported in AIR 2011 SC 2077. Hence, on these grounds he prays to dispose of the appeal. - 15 - NC: 2025:KHC:11113 RSA No. 469 of 2016 13. This Court, admitted the appeal, to consider the following substantial question of law: Whether the Courts below have committed an error in disbelieving the registered relinquishment deed executed by defendants No.3 and 4 in favour of defendant No.1 relinquishing their right in the undivided share? 14. Perused the records and considered the submissions of learned counsel for defendant Nos.1 and 2 and defendant Nos.3 and 4. 15. Now the dispute is only between defendants No.1, 3 and 4 regarding the registered relinquishment deed. Admittedly defendants No.3 and 4 executed a registered relinquishment deed marked as Ex.D-3, which discloses that defendants No.3 and 4 have relinquished their right in the suit schedule properties in favour of defendant No.1. The said relinquishment deed was executed during the pendency of the suit. Defendants No.3 and 4 did not challenge the registered relinquishment deed executed by them in favour of defendant No.1. Until the defendants No.3 and 4 challenge the registered - 16 - NC: 2025:KHC:11113 RSA No. 469 of 2016 relinquishment deed, the defendants No.3 and 4 are estopped from challenging the execution of Ex.D-3. The execution of Ex.D-3 was not considered by the Courts below, and an error was committed in passing the impugned judgments. Admittedly, defendant No.1 has produced Ex.D-3, and defendants No.3 and 4 have relinquished their right in favour of defendant No.1 insofar as, item Nos.3 to 7 of the suit schedule properties is concerned. The defendants have no right to claim a share in item Nos.3 to 7 of the suit schedule properties. The said fact was not considered by the Courts, below and passed impugned judgments. 16. In view of the above discussion, I answer the substantial question of law in the affirmative. Accordingly, I proceed to pass the following:- ORDER i. The Appeal is allowed. - 17 - NC: 2025:KHC:11113 RSA No. 469 of 2016 ii. The Judgments and decree passed by the Courts below are modified. iii. Defendants No.1 and 2 are entitled to 1/7th share each, and the legal heirs of defendant No.5 together are entitled to 1/7th share, legal heirs of defendant No.6 together also entitled to 1/7th share and legal heirs of defendant No.7 together are entitled to 1/7th share, and defendant Nos.8 to 11 together are entitled to 1/7th share in items No.1,2 & 8.* iv. Whatever the share is allotted to defendants No.3 and 4, defendant No.1 is entitled to the share of defendants No.3 and 4 insofar as items Nos.3 to 7. v. No orders as to the costs. Sd/- (ASHOK S.KINAGI) JUDGE VS List No.: 1 Sl No.: 5 CT: BHK *Corrected vide Court order dated 25.04.2025.