- 1 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1770 OF 2016 (PAR) BETWEEN: M N SHANKAR S/O LATE R N MUNISWAMY, AGED ABOUT 54 YEARS, WORKING AS VILLAGE ACCOUNTANT, R/O NUKKANAHALLI VILLAGE, AND POST, HOLUR HOBLI KOLAR TALUK - 563 101. …APPELLANT (BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE) AND: 1. S V ASHOK S/O S.V.VENKATA REDDY, AGED ABOUT 36 YEARS, R/O SHANBUBOGANAHALLI. HOLUR HOBLI, KOLAR DISTRICT - 563 101. 2. M N LOKESH S/O LATE R.N. MUNISWAMY, AGED ABOUT 39 YEARS, 3. SMT. M MAMATHA W/O M.N. LOKESH, AGED ABOUT 35 YEARS, 4. KUMARI MONIKA D/O M.N. LOKESH, AGED ABOUT 12 YEARS Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 5. KUMARI ANANYA D/O M.N. LOKESH, AGED ABOUT 10 YEARS, RESPONDENT NO 4 AND 5 ARE MINORS HENCE THEY ARE UNDER THE CARE AND CUSTODY OF RESPONDENT No.2., M.N.LOKESH WHO IS THE FATHER AND NATURAL GUARDIAN. RESPONDENT Nos.2 TO 5 ARE RESIDENT OF C/O MARAPPA CHIMASANDRA, VEROGENAGAR POST, BIDARAHALLI HOBLI, BANGALORE - 560 049. …RESPONDENTS (R1, R2 & R3 ARE SERVED) R4 & R5 ARE MINORS REP. BY R2) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DATED 05.07.2016 PASSED IN R.A.NO 47/2012 ON THE FILE OF THE II ADDL. DISTRICT AND SESSIONS JUDGE, KOLAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 08.03.2012 PASSED IN OS.NO.87/2010 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM., KOLAR. 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 appellant, challenging the judgment and decree dated 05.07.2016 passed in R.A.No.47/2012 by the learned II Additional District and Sessions Judge, Kolar, reversing the judgment - 3 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 and decree dated 08.03.2012 passed in O.S.No.87/2010 by the learned Principal Senior Civil Judge and CJM, Kolar. 2. For convenience, the parties are referred to based on their rankings before the trial court. The appellant was the plaintiff, and the 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 the case of the plaintiff that one R.N. Muniswamy was the original propositus. He died leaving behind his wife Lakshmamma, three sons, namely, M.N.Venkatarama Reddy, M.N.Shankar and M.N.Lokesh. After the demise of the original propositus, the plaintiff and his brothers and their mother constituted a joint family. The elder brother by name Venkatarama Reddy got separated from the joint family on 23.04.1999, and he was allotted 01 gunta of wet land in Sy.No.6/22B, wet land of 2 guntas in Sy.No.6/23, - 4 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 dry land of 1 acre 4 ½ guntas in Sy.No.18/1, dry land of 1 acre 2 guntas in Sy.No.37/2, dry land of 22½ guntas in Sy.No.38/1A, wet land of 12 guntas in Sy.No.59/1, and house, and vacant space in V.P. Khata No.79 situated at Nukkanahally village, Holur Hobli, Kolar taluk. The plaintiff and defendant No.1 constitute a joint family. It is contended that, some properties are fallen to the share of the plaintiff in spite of khata effected in the individual name of the plaintiff, both are in joint possession of all the properties. The suit schedule properties are the joint family properties of the plaintiff and defendants. No partition is effected between the plaintiff and the defendants. The plaintiff demanded partition and separate possession, but the defendants refused to effect a partition. It is also contended that defendants No.1 to 4 sold item No.7 of the suit schedule property in favour of defendant No.5 on 16.1.2010, and the sale deed executed by defendants No.1 to 4 in favour of defendant No.5 is not binding on the plaintiff. Hence, a cause of action arises for - 5 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 3.1. Defendants No.1 to 4 appeared through the counsel, but they did not file a written statement. Defendant No.5 filed a written statement contending that defendant No.5 purchased item No.7 of the suit schedule property. He is a bonafide purchaser for a value without notice. He contends that defendant Nos.1 to 4 executed the registered sale deed on 16.1.2010, after receiving a valid consideration of Rs.95,000/- and they have put defendant No.5 in possession of item No.7 of the suit schedule property. It is denied that the plaintiff out of his income and joint nucleus fund purchased item No.7 in the name of defendant No.1 and item No.7 property is a joint family property and hence, prays to dismiss the suit against defendant No.5 regarding item No.7 of the suit schedule property. 3.2. The trial Court, based on the pleadings of the parties, framed the following issues: - 6 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 1) Whether the plaintiff proves that himself and defendant Nos.1 to 4 are members of Hindu undivided joint family? 2) Whether the plaintiff further proves that suit schedule properties are Hindu undivided joint family properties? 3) Whether the plaintiff further proves that he is entitle for half share in the suit schedule properties? 4) Whether the defendant No.5 prove that item No.7 of suit schedule property is the self- acquired property of defendant Nos.1 to 4 which has been purchased under registered sale deed on 16.01.2010? 5) What order or decree? 3.3. The plaintiff, to substantiate his case, examined himself as PW.1, examined three witnesses as PWs.2 to 4, and marked 28 documents as Exs.P1 to P28. On the other hand, defendant No.5 was examined as DW.1, examined 5 witnesses as DWs.2 to 6, and marked 35 documents as Exs.D1 to D35. The trial Court, after recording the evidence, hearing on both sides, and on assessing verbal - 7 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 and documentary evidence answered issues Nos.1 to 3 in the affirmative, issue No.4 in the negative, and issue No.5 as per the final order. The suit of the plaintiff was decreed vide judgment dated 08.03.2012. It is declared that the plaintiff is entitled to ½ share in all the suit schedule properties, including the property purchased by the plaintiff at Gottahalli in the name of his wife on 22.01.2007. 3.4. Defendant No.5, aggrieved by the judgment and preliminary decree dated 08.03.2012 passed in O.S.No.87/2010, preferred an appeal in R.A.No.47/2012 on the file of II Additional District and Sessions Judge, Kolar, insofar as granting a share in item No.7 of the suit schedule property. 3.5. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:- 1) Whether the pleadings and proof of the plaintiff is sufficient to uphold the plea that - 8 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 he is having half share in the suit schedule properties? 2) Whether the pleadings and proof of the defendant No.5 is sufficient to uphold the plea that item No.7 is not joint family property of plaintiff and defendant Nos.1 to 4 and it was self acquired property of defendant No.1 and he has purchased it under registered sale deed dated 16.1.2010 and he became absolute owner being in possession of the same as a bonafide purchaser? 3) Whether the judgment and decree of the trial Court requires interference in the appeal? 4) What order? 3.6. The First Appellate Court, on reassessing the verbal and documentary evidence, answered point No.1 in the negative, Point Nos.2 and 3 in the affirmative, and point No.4 as per the final order. The First Appellate Court allowed the appeal vide judgment dated 05.07.2016. The judgment and decree dated 08.03.2012 in O.S.No.87/2010, passed by the learned Principal Senior - 9 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 Civil Judge, Kolar, was set aside. Consequently, the suit of the plaintiff was dismissed, and it was declared that defendant No.5 is the bonafide purchaser vide judgment and decree dated 05.07.2016. 3.7. The plaintiff, aggrieved by the judgment and decree dated 05.07.2016, passed in R.A.No.47/2012 by the learned II Additional District and Sessions Judge, Kolar, filed this Regular Second Appeal. 4. Heard the arguments of the learned counsel for the Plaintiff and the defendants. 5. Learned Counsel for the Plaintiff submits that the First Appellate Court has erred in holding that suit item No. 7 is the self-acquired property of defendant No.1, and it is not a joint family property. The findings recorded by the first appellate court are arbitrary, perverse and illegal. He submits that the defendant is not shown to have employed, earlier to and as on the date of the sale deed dated 25/02/2002 as per Exhibit P2, and defendant No.1 was having any specific employment, business or income - 10 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 out of which he could purchase item No. 7 of the suit property. R.N. Muniswamy was working as a village accountant. He died in 1997. The Plaintiff was appointed as a village accountant on compassionate grounds on 29.01.1998. He had purchased another land in Sy.No.180/2 measuring 1 acre 36 guntas at Gottahalli village on 22/01/2007 in his wife's name. He submits that item No. 7 of the suit property is the joint family property of the plaintiffs and defendant No.1, and the Plaintiff is entitled to a share in item No. 7 of the suit schedule property. The first appellate court did not adequately consider the said aspect. Hence, on these grounds, he prays to allow the appeal. 6. The learned Counsel for the Defendants supported the impugned judgment, and prays to dismiss the appeal. 7. This Court vide order dated 28.02.2017, admitted the appeal to consider the following substantial questions of law: - 11 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 1) Whether the first Appellate Court was justified in holding that there was prior partition in the family of the parties to the suit as contended by the first defendant; as such, suit brought by the plaintiff for partition and separate possession of his share is not maintainable? 2) Whether judgment and decree passed by the first Appellate Court in holding item No.7 of the suit property is the self- acquired property of the 5th defendant contrary to documentary evidence of Exs.P2, P4, P27 and P28 is sustainable in law? 3) Whether judgment and decree passed by the first Appellate Court in allowing the appeal filed by defendant No.5 and setting aside the judgment and decree passed by the trial Court and consequently dismissing the suit of the plaintiff is sustainable in law? 4) And to consider any other question of law that may arise for consideration while hearing the appeal? - 12 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 8. Perused the records, and considered the submissions of the learned counsel for the parties. 9. Reg: Substantial questions of law Nos.1 to 3: Substantial questions of law Nos.1 to 3 are interlinked, and taken together for common discussion to avoid repetition of facts. The Plaintiff, to substantiate his case, examined himself as PW1. He reiterated the plaint averments in the examination in chief, and to prove that the suit schedule properties are the Hindu undivided joint family properties, produced the documents. Exhibit P1 is the Genealogical tree , Ex.P2 is the original registered sale date dated 25/02/2002. Ex.P3 is certified copy of the sale deed dated 16.01.2010, Ex.P4 is the wedding card of defendants No.1 and 2, Ex.P5 is the Ration card. Ex.P6 is the Patta Book, Ex.P7 is the death certificate of Smt. Lakshmamma, Ex.P8 is the Mutation extract, Exs.P.9 & 10 are the Bhuhiduvalipathra in the name of defendant No.1, Exs.P11 - 13 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 to 23 are the RTC extracts about the suit schedule property. Ex.P24 is the Endorsement of Grama Panchayath. Ex.P25 is the Demand Register Extract in the name of Defendant No. 1. Ex.P26 is the Tax Assessment Register Extract. Exs.P27 & 28 are the Voter Lists for 2002 and 2005 of Nukanhandi Voters. 10. During the cross-examination, it is suggested to PW1 that the family of the plaintiff and defendants No.1 to 4 was disrupted on 23.04.1999 when Venkatarama Reddy got separated, and there is no joint family status between the plaintiffs and defendants No. 1 to 4 after 23.04.1999. PW.1 denied the said suggestion. He stated that his father died in 1997, and after his demise, he got appointed as a village accountant on 29.01.98 on compassionate ground. He denied the suggestion that they had partitioned the family properties on 23.04.1999, and also denied that defendant No. 5 is in possession and enjoyment of item No.7 of the suit property. - 14 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 11. One Ramchandrappa was examined as PW2. He has deposed that after the separation of Venkatramareddy from plaintiff and defendant No.1, the plaintiff and defendant No.1 together purchased the land in survey no. 122/2 measuring 1 acre 38 guntas. The plaintiff and defendant No. 1 are in possession of the same, and it is a joint family property. During the cross-examination, it is elicited that he does not know that the suit item No.7 of the property was purchased by defendant no. 5, he has not seen the said sale deed, and he has pleaded ignorance as to what properties were fell to the share of Venkatramareddy and what properties are allotted to the plaintiff and defendant No. 1 in their family partition. 12. One Somshekhar was examined as PW3. He reiterated the examination in chief of PW2. One Narayanswamy was examined as PW4. He has deposed that the Plaintiff and Defendant No. 1 are in joint possession and enjoyment of the suit schedule properties. During the course cross examination, he has stated that - 15 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 he does not know the boundaries extent and survey numbers of the suit schedule property. He does not know that the plaintiff and defendant No.1 divided their properties by partition dated 23.04.1999. He denied the suggestion that suit item No.7 property is the self- acquired property of defendant No.1. 13. Conversely, defendant No. 5 examined himself as DW1. He reiterated the written statement averments in the examination in chief. To substantiate his defense, he produced 35 documents marked as Ex.D1 to D.35. During the cross-examination, nothing was elicited to disbelieve the oral testimony of DW1. Defendant No. 5 also examined the scribe of Ex.D3, who has deposed that defendants 1 to 4 have sold suit item No.7 property in favour of defendant No. 5. Nothing has been elicited from the mouth of this witness to discard the testimony of DW4. 14. From the perusal of the records produced by the parties, it discloses that the dispute between the parties regarding item No.7 of the suit schedule property. - 16 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 It is the case of the Plaintiff that item No.7 of the suit schedule property was purchased out of the joint family nucleus in the name of Defendant No. 1. Admittedly, there was a partition between the Plaintiff and Defendant No.1 on 23.04.1999, and there was a severance in status . Defendant No. 1 acquired item No. 7 of the suit schedule property under a registered sale deed dated 25.02.2002, i.e., after a partition effected between the plaintiffs and Defendant No. 1 in 1999. On the date of purchasing the property, Defendant No. 1 was major, and he purchased the said property out of his own earnings. Further, from the perusal of the records, it discloses that there was a partition between the plaintiff and defendant No. 1. 15. Defendant No.5 had purchased the suit schedule property from defendants No. 1 to 4 under a registered sale deed dated 16.01.2010 for a consideration of Rs. 95,000. Defendants No. 1 to 4 have delivered the possession of item No.7 of the suit schedule property to Defendant No. 5. Defendant No. 5 is in possession and - 17 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 enjoyment of item No.7 of the suit Schedule property. From the perusal of the records, it discloses that there was a partition effected between the plaintiff and defendant no. 1 in 1999, and subsequently, based on the partition effected between the plaintiff and defendant no. 1, the revenue records stood in the name of the plaintiff and defendant No. 1, respectively. 16. The Plaintiff has not explained how the names of the plaintiff and defendant No.1, have entered in the revenue records separately. The First Appellate Court placed reliance on the judgment of Hon’ble Apex Court in the case of M.N.ARYAMURTHI VS. M.L. SUBBARAYA reported in AIR 1972 SC 1279 wherein it is held that “when once there is a severance in status, subsequent acquisition by member even with the joint fund in his possession belongs to him alone and the other members cannot claim their share therein”. Admittedly, in the instant case, there was a partition in 1999, and the item No.7 of the suit schedule property was purchased in 2002. - 18 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 The item No. 7 of the suit schedule property cannot be said to be a joint family property of the plaintiff and defendant No. 1, and the Plaintiff cannot claim a share in item no. 7 of the suit schedule property. Further, the First Appellate Court also relied on this Courts judgment in the case of SUBBANNA Y.K. VS. KAMAIAH AND OTHERS reported in 1998 (2) KLJ 37, wherein it is held that “Thus partition according to Mitakshara law consists in a numerical division of the property. In other words, it consists in defining the shares of the coparceners in the joint properties, an actual division of the properties by metes and bounds is not necessary. The institution of the suit by a coparcener for partition of a joint family property is an undoubted, and unequivocal intimation of his intention to separate himself from the rest of the joint family. Therefore, no sooner the suit is filed, severance of joint status takes place. Once it happens, the division of title takes place. The decree is necessary only to apply title division, and to allot definite properties according to the shares”. - 19 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 17. The First Appellant Court, after assessing the entire evidence on record, recorded its finding in para No.22, which reads as follows: "22. In the instant case, the elder brother of the plaintiff and defendant no. 1 got separated from the joint family by taking his legitimate share on 23.04.1999 with the knowledge of the Plaintiff, defendant no. 1 and their mother. That itself is sufficient that severance of joint status takes place on the day of separation of the elder brother of the plaintiff and defendant No. 1 on 23.04.1999, what property purchased by defendant No. 1 in survey No. 122/2 measuring 1.38 acres on 25.02.2002 as per Ex P.2 is subsequent to the severance of joint status which took place between plaintiffs, defendant No. 1 and their brother with the consent of their mother. Whatever property acquired by defendant no. 1 after 23.04.1999 becomes his self- acquired property, in view of the ratio laid down by the Hon’ble Apex Court, followed the said ratio by the Hon’ble Division Bench of the High Court of Karnataka. That property has been purchased by defendant No.5. On 16.01.2010, under a registered sale deed as per Ex.P.3, therefore, Defendant No. 5 became bona fide purchaser of the said property. Defendants No. 1 to 4 have not disputed the very - 20 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 sale deed they executed to the defendant No. 5. Apart from that, Ex. P.9 and P.10 support the revenue entries in RTC produced by the Plaintiff and defendants, establishing that the plaintiff and defendant no. 1 are enjoying their properties separately from the date of partition of their brother Venkat Rama Reddy. While entering their names into their respective shares. In the revenue records, it has wrongly been mentioned as “ಪವ ಾರಮಮ” instead of division in the family. For the reasons as mentioned by me, the trial court giving importance to the marriage card, ration card, voters list and entry in the revenue record as “ಪವ ಾರಮಮ” and the original sale deed of item No.7 marked as Ex.P2 drawn adverse inference against the defendants and decreed the suit which is illegal, contrary to the law and facts of the case. Even after the division of members of the joint family, any elderly person can perform marriage of younger member and can print a marriage invitation in the name of the person who perform the marriage, that itself is not sufficient to prove the jointness of the brothers, and mere holding a ration card, it is also not sufficient to establish that the Plaintiff and defendants were in joint ownership as on the date of purchase of item No.7, in view of the partition dated 23.04.1999. - 21 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 Mere holding the original sale deed received by the Plaintiff from his own brother to deprive the right of the defendant No. 5 is not proper to draw an adverse inference against the property purchaser.” 18. Under the above circumstances, I am of the opinion that the judgment and decree of the trial court is contrary to the ratio laid down by the Honorable Apex Court and contrary to the facts. It appears that it is arbitrary, illegal, perverse, and capricious. The First Appellate Court has considered the entire evidence on record and rightly passed the impugned judgment. In view of the above discussion, I answer substantial question Nos.1 to 3 in the affirmative. 19. Accordingly, I proceed to pass the following: ORDER i. The Regular Second Appeal is dismissed. ii. The judgment and decree passed by the First Appellate Court in R.A.No.47 of - 22 - NC: 2025:KHC:18175 RSA No. 1770 of 2016 2012, dated 05.07.2016, is hereby confirmed. No order as to the cost. Sd/- (ASHOK S.KINAGI) JUDGE SKS