- 1 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24TH DAY OF APRIL 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 294 OF 2006 (PAR-) BETWEEN: DHONDIBA BAKARE S/O. VITHAL BAKARE, SINCE DECEASED BY HIS LR’S. SMT. REVATI DHONDIBA BAKARE, AGED ABOUT 77 YEARS, OCC: HOUSEHOLD, (NOTE: SMT. REVATI DHONDIBA BAKARE, ALREADY ON RECORD AS RESPONDENT NO.37) A(i) SRI. PRAKASH DHONDIBA BAKARE, AGED ABOUT 60 YEARS, OCC: AGRICULTURE, A(ii) SRI. MURALIDHAR DHONDIBA BAKARE, AGED ABOUT 58 YEARS, OCC: AGRICULTURE, A(iii) SRI. GAJANAN DHONDIBA BAKARE, AGED ABOUT 56 YEARS, OCC: AGRICULTURE, A(iv) SRI. VIJAY DHONDIBA BAKARE, AGED ABOUT 52 YEARS, OCC: AGRICULTURE, ALL ARE R/AT BANAHATTI, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOTE. ...APPELLANTS (BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE) SAMREEN AYUB DESHNUR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 AND: 1. VISHNU BAKARE S/O. RAMACHANDRA BAKARE, SINCE DECEASED BY LR’S. 1(a) ASHOK S/O. VISHNU BAKARE, AGED 58 YEARS, R/AT TAMBOLI GALLI, ASHOK COLONY, BANAHATTI, TQ: JAMKHANDI. 1(b) SATYAVAHANA S/O. VISHNU BAKARE, AGED ABOUT 56 YEARS, R/AT TAMBOLI GALLI, ASHOK COLONY, BANAHATTI, TQ: JAMKHANDI. 1(c) SRI. ARUN S/O. VISHNU BAKARE, AGED ABOUT 54 YEARS, R/AT TAMBOLI GALLI, ASHOK COLONY, BANAHATTI, TQ: JAMKHANDI. 1(d) SRI. KISHAN S/O. VISHNU BAKARE, AGED ABOUT 53 YEARS, C/O. SRI. SACHIN BARAGALE, DHANAGAR MALA, KANJERI NAGAR, BEHIND DECCAN PROCESS, SHAHAPUR ROAD, ICHALKARAJI, DIST: KOLHAPUR. LR’S IMPLEASED AS PER COURT ORDER DATED 14.2.2013 2. [RUKMINIBAI BAKARE, W/O. VITHAL BAKARE] 3. KALLAPPA BAKARE, S/O. VITAHL BAKARE, AGED ABOUT 65 YEARS, R/AT. BANHATTI, TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. DELETED AS PER COURT ORDER DATED 25/02/2010 AMENDMENT CARRIED OUT VIDE ORDER DATED, 1/2/2013. - 3 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 4. MAHADEV BAKARE, S/O. VITHAL BAKARE, AGED ABOUT 65 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 5. SHANKAR BAKARE S/O. VITHAL BAKARE, AGED ABOUT 60 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 6. BASAVANT BAKARE, S/O. VITHAL BAKARE, AGED ABOUT 57 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 7. MARUTI BAKARE S/O. VITHAL BAKARE, AGED ABOUT 55 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 8. YASHODABAI BAKARE, W/O. TUKARAM BAKARE, AGED ABOUT 69 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 9. VASANT BAKARE S/O. TUKARAM BAKARE, AGED ABOUT 49 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 10. BABU BAKARE S/O. TUKARAM BAKARE, AGED ABOUT 55 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. - 4 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 11. MUKTABAI BAKARE, D/O. TUKARAM BAKARE, AGED ABOUT 45 YEARS, R/AT. BEHIND SHAPUR BUS DEPOT, ICHALKARANJEE, DIST: KOLHAPURE, MAHARASTRA. 12. VASTALABAI GONDKAR, W/O. PANDIT GONDKAR, AGED ABOUT 63 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 13. [LALITA BAI BHASME, W/O. MOHAN BHASME, AGED AOBUT 63 YEARS, R/AT. BASAVANA GALLI, KHASBAG, BELGAUM] AMENDMENT CARRIED OUT ABATED VIDE ODER DATED 29/8/2023 14. PARWATIBAI GONDAKAR, W/O. LAXMAN GONDAKAR, AGED ABOUT 55 YEARS, GONDI ONI, CHANNAPET, OLD HUBLI, HUBLI. 15. [AMABAWWA BAKARE, W/O. DEVANDRAPPA BAKARE] DEAD AND L.R. ON RECORD AS RESPONDENT NO.19. RAVIKUMAR @ HUCHAPPA @ KAKA BAKARE. 16. MANJULA BAKARE W/O. MOHAN BAKARE, AGED ABOUT 30 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. DELETED AS PER COURT ORDER DATED 25.02.2010 - 5 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 17. YOGESH BAKARE, S/O. MOHAN BAKARE, AGED ABOUT 09 YEARS, REPRESENTED BY ITS NATURAL GUARDIAN, MANJULA MOHAN BAKARE, RESPONDENT NO.16. 18. DHAMJIR BAKARE, S/O. DEVENDRA BAKARE, AGED ABOUT 40 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 19. RAVIKUMAR @ HUCHAPPA @ KAKA BAKARE, S/O. DEVENDRA BAKARE, AGED ABOUT 38 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 20. SUBHADRA KOPARDE, W/O. RAVIKUMAR KOPARDE, AGED ABOUT 35 YEARS, R/AT. BHAGIRATI NIVAS, AJANTA CO-OP. HOUSING SOCIETY, NADIWALI ROAD, DOMBIWALI (EAST), MUMBAI. 21. [BABI @ TUNGABHADRA, W/O. SURYAKANT BHASME, AGED ABOUT 40 YEARS, N.N. GHADIK CHAWL, VAKULA, DAMELLO COMPOUND, SANTA-CRUZ (EAST) MUMBAI.] AMENDMENT CARRIED OUT VIDE ORDER DATED 29.08.2023 22. MAHADEVI GONDAKAR, W/O. VITHALRAO GONDAKAR, AGED ABOUT 40 YEARS, - 6 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 DURGADA BAIL, FLOWER MARKET, HUBLI. 23. BHARATIBAI GONDKAR, W/O. PANDURANGARAO GONDKAR, AGED ABOUT 40 YEARS, HULAMANI CHAWL, PATEL GALLI, HUBLI. SHRI PANDURANG GONDKAR, WORKING IN CORPORATION OFFICE, NEAR TAHSILDAR OFFICE, NEAR OLD BUS-STAND, HUBLI. 24. NARAYAN BHASME, W/O. TUKARAM BHASME, AGED ABOUT 65 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 25. MURALIDHAR BHASME, S/O. TUKARAM BHASME, AGED ABOUT 59 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 26. YASHODHABAI MAHINDRAKAR, W/O. ANNAPPA MAHINDRAKAR, AGED ABOUT 55 YEARS, BAILHONGAL, DIST: BELGAUM. 27. RADAHABAI BAKARE, W/O. VISHBU BAKARE, AGED ABOUT 55 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 28. EKANATH GONDAKAR, W/O. DUNDAPPA GONDAKAR, AGED ABOUT 40 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. - 7 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 29. JANARDHAN GONDAKAR, S/O. DUNDAPPA GONDAKAR, AGED ABOUT 40 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 30. BALAWANT GONDAKAR, S/O. DUNDAPPA GONDAKAR, AGED ABOUT 38 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 31. PANDIT GONDAKAR, S/O. DUNDAPPA GONDAKAR, AGED ABOUT 36 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 32. JAYAWANT GONDAKAR, S/O. DUNDAPPA GONDAKAR, AGED ABOUT 35 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 33. PRALHAD GONDAKAR, S/O. DUNDAPPA GONDAKAR, AGED ABOUT 34 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 34. KAMALABAI KOPARDE @ KITTUR, W/O. JAYAWANT KOPARDE @ KITTUR, AGED ABOUT 35 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 35. SHAKUNTALABAI BHASME, W/O. PRABHAKAR BHASME, - 8 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 AGED ABOUT 34 YEARS, K.E.B. OFFICE, HUKKERI, DIST: BELGAUM. 36. SATYABHAMA BHASME, W/O. NAMADEV @ SURESH BHASME, AGED ABOUT 33 YEARS, R/AT. K.E.B. OFFICE, CHIKKODI, DIST: BELGAUM. 37. JYOTIBA KOPARDE, S/O. SHAMBU KOPARDE, AGED ABOUT 59 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 38. ATMARAM BHASME, S/O. BHAURO BHASME, AGED ABOUT 40 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 39. RAVATHIBAI BAKARE, W/O. DHONDIBA BAKARE, AGED ABOUT 40 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 40. DEVAKIBAI BAKARE, W/O. KALLAPPA BAKERE, AGED ABOUT 38 YEARS, R/AT. BANHATTI TQ: JAMKHANDI, DIST: BAGALKOTE-587 301. 41. ULLAS KOPARDE, S/O. BABURAO KOPARDE, AGED ABOUT 63 YEARS, R/AT. GALLI NO.1, DATTANAGAR, ICHALKARANJEE, DIST: KOLHAPURE, MAHARASTRA. - 9 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 42. KISHAN KOPARDE, S/O. BABURAO KOPARDE, AGED ABOUT 59 YEARS, R/AT. GALLI NO.1, DATTANAGAR, ICHALKARANJEE, DIST: KOLHAPURE, MAHARASTRA. 43. ARUN KOPARDE, S/O. BABURAO KOPARDE, AGED ABOUT 55 YEARS, R/AT. GALLI NO.1, DATTANAGAR, ICHALKARANJEE, DIST: KOLHAPURE, MAHARASTRA. 44. SHAKUNTALABAI MAHENDRAKAR, W/O. NARAYAN MAHENDRAKAR, GALLI NO.1, DATTANAGAR, ICHALKARANJEE, DIST: KOLHAPURE, MAHARASTRA. ...RESPONDENTS (BY SRI. VIJAYKUMAR B. HORATTI, FOR R1(A-D), R8-R10, R16, R18, R19 & R27; SRI. DINESH M. KULKARNI, ADVOCATE FOR R1(B); SRI. VITTHAL S. TELI, ADVOCATE FOR R4; R2 & R15 ARE DELETED; R26, R28, R29, R32, R33 ARE EXEMPTED; R7, R14, R22 & R23 ABATED; R3, R5, R6, R11, R20, R24, R25, R35, R36, R38, R39, R40, R41, R42, R44 ARE SERVD; R12 & R43-DECEASED; R30, R31, R34 & R37 HELD SUFFICIENT; R3, R8, R24, R25 & R27, R13, R21, R12 & R43 ABATED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE PRAYING TO ALLOW THE PRESENT APPEAL AND SETASIDE THE JUDGEMENT & DECREE PASSED BY THE DISTRICT JUDGE, BAGALKOTE, PASSED IN R.A.NO 146/2001 DATED 29.10.2005 AND THE JUDGMENT AND DECREE PASSED BY THE PRINCIPAL CIVIL JUDGE, (SR. DN.) JAMKHANDI PASSED IN O.S.24/1984 DATED 22.11.2000 AND DISMISS THE SUIT OF THE PLAINTIFF IN THE INTEREST OF JUSTICE AND EQUITY. - 10 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 22.04.2025 COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S. INDIRESH CAV JUDGMENT 1. This appeal is preferred by the defendant No.2 challenging the judgment and decree dated 29.10.2005 in R.A.No.146/2001 on the file of the District Judge, Bagalkot1 dismissing the appeal and confirming the judgment and decree dated 22.11.2000 in O.S.No.24/1984 on the file of the Principal Civil Judge (Sr.Dn.), Jamkhandi2, decreeing the suit of the plaintiff in part. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. The facts in nutshell as averred in the plaint by the plaintiff are that: 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 11 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 3.1 The plaintiff and defendants are the members of the Hindu joint family and have succeeded to the estate of the original propositus – Ramachandra (died on 29.09.1974). It is the case of the plaintiff that the original propositus - Ramachandra and his children were weavers and dealers in saree and have joint family Partnership Firm known as ‘Ambika Saree Stores’. The said firm had sufficient profits and as such some of the suit properties were acquired from the income derived in the saree business. It is also stated in the plaint that, the original propositus – Ramachandra became weak on account of aged ailments and as such the defendant No.1 being the eldest son of late Ramachandra became karta of the joint family and look after the family business. It is also stated that the defendant No.1 has invested funds of the joint family in number of societies and pledged some of the goods in the bank and also the defendant No.1 had purchased two suit schedule properties in the name of defendant No.2, who had no independent source of income and therefore it is the contention of the plaintiff that the - 12 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 two items of the suit schedule properties are the joint family properties of the plaintiff and defendants and not solely belong to defendant No.2. 3.2 It is also averred in the plaint that there were misunderstanding in the family during 1965-66 and as such an effort was made to settle the family dispute, however, the original propositus – Ramachandra, approached the Civil Judge, Bijapur for appointment of arbitrator, resulting in filing of suit in O.S.No.56/1980 (old O.S.No.255/1973) filed by defendant No.2 at the instance of defendant No.1 seeking injunction restraining the plaintiff and brothers of plaintiff from the exclusive possession of the suit lands. It is also averred that, O.S.No.61/1980 (old O.S.No.20/1974) filed by plaintiff and his brothers seeking relief of injunction against the defendants No.1 and 2 before the Munsiff Court at Banahatti. O.S.No.56/1980 filed by the defendant No.1 was dismissed as abated and O.S.No.61/1980 filed by the plaintiff and his brothers is pending consideration before - 13 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 the competent Court. As the dispute is relating to title of the suit lands and therefore the plaintiff has filed O.S.No.24/1984 seeking relief of partition and separate possession in respect of the suit schedule properties. 3.3 After service of notice, the defendants entered appearance. Defendant No.1, 2 and 10 have filed separate detailed written statement. Defendant No.13 and 14 together have filed common written statement. Defendant No.3 to 9, 11, 12 and 15 have adopted the written statement filed by defendant No.10. During the pendency of the suit, the defendant No.1, 10, 10B, 11, 12 and 14 were dead and their legal representatives were brought on record. 3.4 It is the specific contention of defendants No.1 and 2 that, the defendants No.1 and 2 are residing separately from the original propositus – Ramachandra, plaintiff, defendant No.10 and late Tukaram for more than 27 years. These defendants denied the existence of joint family of original propositus – Ramachandra. The suit - 14 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 properties are not the joint family properties. It is stated that TMC No.299 is the ancestral property of propositus Ramachandra. CTS No.6410 (TMC No.299) and CTS No.6411 were together a single house and during the partition between the original propositus – Ramachandra and his brother Balakrishna, CTS No.6410 had fallen to the share of original propositus – Ramachandra and CTS No.6411 had fallen to the share of the Balakrishna. It is also stated that the original propositus – Ramachandra had given half share in the said property to his eldest son Annappa and therefore the remaining portion of CTS No.6410 is only ancestral family property of plaintiff, defendant No.1, defendant No.10 and late Tukaram. 3.5 It is also contended in the written statement that, house No.298 was purchased by defendant No.1 and his brothers for sum of ₹600/- out of their own earnings in weaving and dyeing of clothes. The said property is in possession of plaintiff, defendant No.10 and children of late Tukaram. The portion of the house No.691 belong to - 15 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 Siddeshwara Handmade Papers Society of Banahatti and the open space for construction of the said building was leased out by Udaya Nekarara Sahakari Sangha of Banahatti and therefore the said property is nothing to do with regard to the right of the parties. The Gaonthana Sage No.8 was purchased by defendant No.1 through his independent income and thereafter the said property was sold to one G.V.Banakar of Banahatti about ten years back. Two powerlooms are allotted to defendant No.1 by Udaya Nekarara Society of Banahatti. Ten powerlooms are situate in house No.298 and they are run by the plaintiff, defendant No.10 and children of late Tukaram. These defendants have nothing to do with the above ten powerlooms. The defendant No.2 through his independent income purchased land bearing Sy.No.71/A of Banahatti on 31.03.1967 for sum of ₹6,500/- and land bearing Sy.No.71/B, a part of the main land, on 16.12.1970 for sum of ₹5,000/- and these lands were converted into garden lands and these defendants have made certain improvements in these aforementioned lands and also - 16 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 constructed a farmhouse. It is also stated that defendant No.2 had kept the original sale deed of the land purchased by him in the partnership firm ‘M/s.Ambika Saree Stores’ for safety purpose and same was removed by the plaintiff and as such these defendants have no original sale deed copy. Hence, it is the case of the defendants No.1 and 2 that, the defendant No.2 is the exclusive owner of the suit lands and the properties mentioned above cannot be considered as the joint family properties. 3.6 It is also further averred in the written statement that during 1955 the defendant No.2 left the family of defendant No.1 and was working in the shop of one K.V.Koparde of Banahatti and thereafter went to Kolhapur during 1958 and was working in the shop of one R.C.Banakar on the pay of ₹3,000/- per annum. It is also stated that defendant No.2 left Kolhapur and came to Banahatti and opened a shop in the name and style of ‘Ambika Sadi Stores’ from his own earnings and therefore sought for dismissal of the suit. - 17 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 3.7 It is also stated that during 1965, plaintiff, defendant No.1 and 10 and late Tukaram have joined the saree business with defendant No.2 and constituted a partnership firm under the name and style as ‘M/s.Ambika Saree Stores’ as per the partnership deed dated 05.11.1965 contributing ₹2,000/- each by all the five partners having equal share in it. The said partnership business was continued till 1973 and thereafter there is dispute arose between the partners and as such the defendants No.1 and 2 left the partnership firm. Thereafter, the plaintiff and his brothers continued the business under a fresh partnership agreement excluding defendants No.1 and 2 and they did not give any accounts of the firm to defendant No.2, hence defendant No.2 has filed suit in O.S.No.107/1976, which came to be dismissed on 06.04.1983 and thereafter appeal in R.A.No.85/1983 was filed before the First Appellate Court and the said appeal is pending consideration before the First Appellate Court. - 18 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 3.8 It is also stated in the written statement that the plaintiff has approached the Court without having right and title in respect of some of the suit schedule properties which has been purchased by defendants No.1 and 2 through their independent income and accordingly sought for dismissal of the suit. 3.9 Defendants No.13 and 14 have filed separate written statement stating that the suit properties are not the joint family properties. Defendant No.10 filed separate written statement supporting the contention of the plaintiff and accordingly sought for respective share in the suit properties of the original propositus – Ramachandra. 3.10 The Trial Court based on the pleadings on record, has framed issues and additional issue for its consideration. In order to establish his case, the plaintiff has examined 4 witnesses as PW.1 to PW.4 and produced 16 documents and same were marked as Ex.P.1 to Ex.P.16. The defendants have examined 3 witnesses as - 19 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 DW.1 to DW.3 and got marked 84 documents as Exs.D.1 to D.84. 3.11 The Trial Court after considering the material on record, by its judgment and decree dated 22.11.2000 decreed the suit in part and feeling aggrieved by the same, the defendant No.2 has preferred R.A.No.146/2001 on the file of the First Appellate Court and same was resisted by the plaintiff and other defendants. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 29.10.2005, dismissed the appeal, consequently, confirmed the judgment and decree in O.S.No.24/1984. Feeling aggrieved by the same, the defendant No.2 has preferred this Regular Second Appeal. 4. This Court vide order dated 19.09.2008 formulated the following substantial questions of law: “1) Whether the Courts below are justified in not observing the fact that as on the date of the constitution of the firm, the eldest member of the family was alive and he had no ancestral business and the members are governed by - 20 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 the contractual relation between the family members and not by their status of being the members of the family? 2) Whether the Courts below are justified in decreeing the suit of the plaintiffs? 3) What order?” 5. I have heard Sri.Mrutyunjay Tata Bangi, learned counsel appearing for the appellants, Sri.Vijaykumar B Horatti, learned counsel appearing for the respondents No.1(a-d), 8 to 10, 16, 18, 19 and 27 and Sri.Dinesh M Kulkarni, learned counsel appearing for the respondent No.1(b). 6. Sri.Mrutyunjay Tata Bangi, learned counsel appearing for the appellants contended that both the Courts below have not considered the judgment and decree in R.A.No.85/1983 disposed of on 06.04.1994 (Ex.D.1), filed by defendant No.2 – Dhondiba Vithal Bakare and the proceedings in FDP No.2/2006 dated 14.10.2016. He further contended that the suit filed by the defendants in O.S.No.107/1976 (after transfer to Munsiff Court at Banahatti renumbered as O.S.No.125/1980) - 21 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 seeking rendition of accounts in the partnership firm, which came to be decreed and thereafter Dhondiba Vithal Bakare – defendant No.2 in the present suit has preferred R.A.No.85/1983 which came to be decreed on 06.04.1994 directing the partners of the ‘Ambika Sadi Stores’ to furnish the profits and loss of the partnership firm. 7. Sri.Mrutyunjay Tata Bangi, learned counsel appearing for the appellants, refers to para No.5 of the written statement of defendant No.2 and para No.3 of the written statement of defendant No.14 and contended that the joint family status was severed long back and thereafter the partnership firm was started during 1965. It is also argued that the suit for rendition of accounts was filed during 1965 and thereafter referring to the finding recorded by the Trial Court, it is contended that both the Courts below have ignored the factual aspects on record in the right perspective and accordingly sought for interference of this Court. - 22 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 8. Nextly, it is contended by the learned counsel for the appellants that both the Courts below have wrongly places reliance on Ex.P.14 and Ex.P.16 and decreed the suit of the plaintiff and same is contrary to law as the plaintiff has not proved that the defendant No.1 was karta of the joint family of original propositus – Ramachandra and that apart, the suit properties were purchased by the defendant No.2 through his independent income and therefore, contended that the findings recorded by both the Courts below requires to be interfered with in this appeal. 9. Placing reliance on the judgment of the Hon’ble Supreme Court in the case of Nanchand Gangaram Shetji vs. Mallappa Mahalingappa Sadalge and Others reported in AIR 1976 SC 835, learned counsel appearing for the appellant contended that the Partnership Act exclude the Joint Hindu Trading Families and the said aspect of the matter was ignored by both the Courts below with regard to severance of the joint family status of the - 23 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 plaintiff and defendants and accordingly sought for interference of this Court. 10. Sri.Dinesh M Kulkarni, learned counsel appearing for the respondent No.1(b) refers to para No.4 of the plaint and para No.11 of the written statement of defendant No.2 and argued that defendant No.2 has failed to establish before the Court with regard to the income derived by him through his independent business and therefore argued that the defendant No.2 has failed to establish the onus on his part to prove that the defendant No.2 had independent income and therefore sought for dismissal of the appeal. 11. Sri.Vijaykumar B Horatti, learned counsel appearing for the respondents No.1(a-d), 8 to 10, 16, 18, 19 and 27 argued that the plaintiff has produced Ex.P.14 and Ex.P.16, wherein the defendants No.1 and 2 admitted about the joint family properties and the said admission cannot be ignored while considering the status of the - 24 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 jointness of the parties running ‘Ambika Sadi Stores’ and therefore sought for dismissal of the appeal. 12. In the light of the submissions made by the learned counsel appearing for the parties, I have carefully examined the findings recorded by both the Courts below. In order to understand the relationship between the parties, the genealogy of the parties is extracted hereunder: Ramachandra (propositus, died on 29.09.1974) Laxmibai (Wife, died on 06.03.1974) Annappa Tukaram Gangavva Radhabai Dead, Devendra deft-12 deft-14 Divided (deft-10) Long Vithal Vishnu Bhagirathi Janabai Sharadabai back (Deft-1) (plff) (Deft-11) Died on (Deft-15) 18.7.80 Dhondiba (Died on 25.01.1978) (Son) (D-2) Yashodabai Jyotiba (Wife, D-3) (Son)(D-13) Vasant Muktabai Lalitabai (Deft-4) (Deft-6) (Deft-8) Babu Vatsalabai Parvathibai (Deft-5) (Deft-7) (Deft-9) - 25 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 13. The original propositus – Ramachandra had ten children namely Annappa (died long back), Vithal (defendant No.1 and father of defendant No.2), Tukaram (died leaving behind his legal representative defendant No.3 to 9), Vishnu (plaintiff), Devendra (defendant No.10), Bhagirathi (defendant No.11), Gangavva (defendant No.12), Janabai (died leaving behind son daughter defendant No.13), Radhabai (defendant No.14) and Sharadabai (defendant No.15). 14. Perusal of the finding recorded by the Trial Court would indicate that, there are six litigations between and amongst the family members of original propositus – Ramachandra. O.S.No.49/1981 was filed by the appellant herein seeking permanent injunction in respect of the land bearing Sy.No.71/1/1A and 71/1/1B. O.S.No.338/1980 was filed by son of the appellant herein seeking partition and separate possession in respect of the property bearing VPC Nos.197 and 298 which came to be dismissed as withdrawn on 19.09.1983 (Ex.D.76). O.S.No.56/1980 (old - 26 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 O.S.No.255/1973) was filed by the appellant herein seeking permanent injunction in respect of the land bearing Nos.71/1/1A and 71/1/1B, which came to be abated on 25.07.1981. O.S.No.61/1980 (old O.S.No.20/1974) was filed by Ramachandra, Tukaram, Vishnu (plaintiff) and Devendra against the defendants No.1 and 2 (appellant herein) seeking permanent injunction in respect of the Sy.Nos.71/1/1A and 71/1/1B. O.S.No.123/1980 (old O.S.No.107/1976) was filed by the appellant herein seeking relief of dissolution of Firm and rendition of accounts which came to be dismissed on 06.04.1983 and thereafter the appellant herein had preferred R.A.No.80/1983 which came to be allowed and confirmed in RSA No.1042/1994 by this Court and thereafter FDP No.2/2006 was filed which came to be decreed on 14.10.2016. The plaintiff has preferred the present suit in O.S.No.24/1984, seeking relief of partition and separate possession of the suit schedule properties. - 27 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 15. I have carefully considered the pleadings on record particularly the plaint averments, wherein it is the case of the plaintiff that the original propositus – Ramachandra and his sons have Joint family business of manufacturing, weaving and business of sarees. It is also stated that the joint family had a partnership firm in the name of ‘Ambika Saree Stores’. The said partnership firm had profit and out of the same, the suit properties have been purchased in the name of defendants No.1 and 2 as the defendant No.1 was the karta of the joint family. Though it is stated in para No.4 of the plaint that the defendant No.1 was managing the saree business since 1966 and the schedule properties have been purchased on 31.03.1967 and 16.12.1970, as per para No.5 of the written statement of defendant No.2, and in order to ascertain the jointness of the members of the joint family, though the parties are residing separately, but, it cannot be doubted by the parties in the suit with regard to constitution of the Partnership Firm known as ‘Ambika Saree Stores’. It is also to be noted that during lifetime of - 28 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 original propositus – Ramachandra (father of defendant No.1) himself had filed a suit in O.S.No.20/1974 which came to be renumberd as O.S.No.61/1980 in which the relief of permanent injunction in respect of the land bearing Sy.Nos.71/1/1A and 71/1/1B was sought. This fact makes it clear that even during the lifetime of original propositus – Ramachandra, the schedule properties were purchased out of the income derived from the partnership firm. 16. Though the learned counsel appearing for the appellants places reliance on the judgment of the Hon’ble Supreme Court in the case of Nanchand Gangaram Shetji supra, the said judgment cannot be made applicable to the facts of the present case in view of the peculiar facts that the contesting defendants themselves have addressed letters at Ex.P.14 and Ex.P.16 admitting the existence of the partnership firm and purchase of the suit properties out of the nucleus of the joint family. The said admission made in Ex.P.14 and Ex.P.16 cannot be - 29 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 ignored though the independent suit has been filed seeking rendition of the accounts of the partnership firm in O.S.No.107/1976. The nature of the present suit is of seeking share in the joint family properties and as the contesting defendants have made an admission in Ex.P.14 and Ex.P.16 and therefore I am of the opinion that, the said aspect of the matter cannot be ignored and therefore the arguments advanced by the learned counsel appearing for the appellant cannot be accepted. 17. The admission made by the contesting defendants at Ex.P.14 and Ex.P.16 is a clear admission to the fact that the proceeds in the sale consideration, while purchasing the suit lands in the name of defendants No.1 and 2 are from the nucleus of the joint family business in the partnership firm. 18. At this juncture, it is relevant to cite the judgment of Hon’ble Supreme Court in the case of Nagindas Ramdas vs. Dalpatram Ichharam @ Brijram and Others reported in (1974) 1 SCC 242, - 30 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 wherein it is held that, admissions in pleadings or judicial admissions in comparison with evidentiary admissions is a relevant fact to adjudicate the dispute on merits of the case. At paragraph 27 of the said judgment, it is held as follows: “27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction, though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself, Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under S. 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties On the other hand evidentiary admissions which are receivable at the trial as - 31 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 evidence, are by themselves, not conclusive. They can be shown to be wrong.” (emphasis supplied) 19. The aforementioned aspect was considered by the Hon’ble Supreme Court in the case of Vikrant Kapila and Another vs. Pankaja Panda and Others reported in AIR 2023 SC 5579 and at paragraph 22.3 of the said judgment, it is held as follows: “22.3 Admission in pleadings means a statement made by a party to the legal proceedings, whether oral, documentary, or contained in an electronic form, and the said statement suggests an inference with respect to a fact in issue between the parties or a relevant fact. It is axiomatic that to constitute an admission, the said statement must be clear, unequivocal and ought not to entertain a different view. Coming to admission in pleadings, these are averments made by a party in the pleading, viz., plaint, written statement, etc., in a pending proceeding of admitting the factual matrix presented by the other side. To constitute a valid admission in pleading, the said admission should be unequivocal, unconditional, and unambiguous, and the admission must be made with an intention to be bound by it. Admission must be valid without being proved by adducing evidence and enabling the opposite party to succeed without trial. - 32 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 A court, while pronouncing a judgment on admission, keeps in its perspective the requirements in Order VIII Rule 5, Order XII Rule 6 and Order XV Rules 1 and 2 of CPC read with Sections 17, 58 and 68 of the Indian Evidence Act.” (emphasis supplied) 20. At this juncture, emphasis has to be made on re-appreciating the evidence of contesting defendants relating to an admission made in the deposition. It is relevant to cite the judgment of Hon’ble Supreme Court in the case of Raja Gounder and Others vs. M. Sengodan and others reported in AIR 2024 SC 644, wherein at paragraphs 13 and 14, it is held as follows: “13. Sections 17 and 18 of the Indian Evidence Act, 1872 (“the Act”) defines “admission” and “admission by party to proceeding or his agent”. Section 17 of the Act reads thus: - “17. Admission defined admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.” 13.1. Admission is a conscious and deliberate act and not something that could be inferred. An - 33 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 admission could be a positive act of acknowledgement or confession. To constitute an admission, one of the requirements is a voluntary acknowledgement through a statement of the existence of certain facts during the judicial or quasi-judicial proceedings, which conclude as true or valid the allegations made in the proceedings or in the notice. The formal act of acknowledgement during the proceedings waives or dispenses with the production of evidence by the contesting party. The admission concedes, for the purpose of litigation, the proposition of fact claimed by the opponents as true. An admission is also the best evidence the opposite party can rely upon, and though inconclusive, is decisive of the matter unless successfully withdrawn or proved erroneous by the other side. 13.2 The above being the position, pithily stated on what constitutes an admission, Section 17 of the Act does not come in aid to answer or appreciate the documentary evidence marked in the suit. Therefore, Section 17 has to be read along with Section 18 of the Act, which reads thus:- “18. Admission by party to proceeding or his agent.–Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorised by him to make them, are admissions. by suitor in representative character.– Statements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character. - 34 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 Statements made by – (1) by party interested in subject-matter.– persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested, or (2) by person from whom interest derived.– persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements..” 13.3 Section 18 of the Act deals with: (i) admission by a party to a proceeding, (ii) his agent, (iii) by a suitor in a representative character, (iv) statements made by a party in trusted subject matter, (v) statements made by a person from whom interest is derived. The qualifying circumstances to merit as admission are subject to satisfying the requirements. 14. The Privy Council in Gopal Das and another v. Sri Thakurji and others, held that a statement made by a person is not only evidence against the person but is also evidence against those who claim through him. Section 18 of the Act lays down the conditions and the requirements satisfied for applying to a statement as an admission. We keep in our perspective Sections 17 and 18 of the Act while appreciating Exs. B-3 and B-6.” (emphasis supplied) - 35 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 21. Following the declaration of law made by the Hon’ble Supreme Court in the above case, I have given my anxious consideration to the finding recorded by the Trial Court on Issue No.4 and after appreciating the evidence of PW.2 to PW.4 and DW.2, I am of the view that the contesting defendants No.1 and 2 have failed to establish that the suit lands were purchased through their independent income and therefore I am of the view that the finding recorded by the Trial Court is just and proper. 22. Even it is to be noted that the original sale deeds of the disputed lands are not in custody of defendants No.1 and 2 and the said aspect would makes it clear that the suit lands are purchased by defendants No.1 and 2 through the income derived from the joint family business and accordingly the finding recorded by the Trial Court is just and proper and does not call for interference in this appeal. 23. The First Appellate Court after re-appreciating the entire material on record, analysed the issues on - 36 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 merits and rightly comes to the conclusion, re-appreciating the evidence of PW.3, who deposed that the ‘Ambika Saree Stores’ was run by plaintiff and defendants and had 24 powerlooms and out of the income in the business, purchased an extent of 12 acres of land and the said aspect of the matter was also reiterated in the deposition of PW.4. Though the DW.1 disputes his signature on Ex.P.14, however, the admission of DW.1 that the plaintiff and his other uncles were the partners in the partnership firm of ‘M/s.Ambika Saree Stores’ and further it is pertinent to mention here that the original partnership deed is not in the custody of the defendants No.1 and 2 and if at all the said aspect that the ‘M/s.Ambika Saree Stores’ partnership firm was constituted to enlarge the business of saree at Jamkhandi and therefore the First Appellate Court after re-appreciating the entire material on record, rightly concurred with the judgment and decree passed by the Trial Court. - 37 - NC: 2025:KHC-D:6831 RSA No. 294 of 2006 24. Following the declaration of law made by the Hon’ble Supreme Court in the case of Laxmidevamma and Others vs. Ranganath and Others reported in (2015) 4 SCC 264 and in the case of S.Subramanian vs. S.Ramasamy reported in AIR 2019 SC 3056, I am of the view that both the Courts below have rightly appreciated the oral and documentary evidence adduced by the parties in right perspective and decreed the suit in part and therefore there is no perversity in the judgment and decree passed by the Courts below and as such the substantial questions of law framed above favours the plaintiff. 25. In the result, the appeal fails. Sd/- (E.S.INDIRESH) JUDGE SH CT-MCK List No.: 1 Sl No.: 33