- 1 - NC: 2025:KHC:10369 RSA No. 2159 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 2159 OF 2023 (PAR/POS) BETWEEN: SMT.MANGALAMMA, D/O GANGAIAH, AGED ABOUT 46 YEARS, RESIDING AT NO.181/1-A, 6TH MAIN, 3RD BLOCK, THYAGARAJANAGAR, BENGALURU - 560 028. …APPELLANT (BY SRI. NAIK N.R., ADVOCATE) AND: 1. SRI. K. GANGAIAH, S/O KUMBEGOWDA, AGED ABOUT 89 YEARS, 2. SRI. THIMMAPPA, S/O GANGAIAH, AGED ABOUT 58 YEARS, 3. SRI. CHIKKA KAMBEGOWDA, S/O GANGAIAH, AGED ABOUT 50 YEARS, 4. SRI. H.G. SHIVASHANKAR, S/O GANGAIAH, AGED ABOUT 44 YEARS, Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:10369 RSA No. 2159 of 2023 RESPONDENTS 1 TO 4 ARE RESIDING AT HOSAHALLI VILLAGE, SOMPURA HOBLI, NELAMANGALA TALUK - 561 103. 5. SMT. UMADEVI, W/O NARASAPPA, AGED ABOUT 55 YEARS, RESIDING AT NO.307, MANJUNATHAN NAGAR, KOLI FARM, TUDA LAYOUT, TUMKUR. 6. SMT. LALITHA, W/O SIDDAGANGAIAH, AGED ABOUT 53 YEARS, RESIDING AT NO.303, GOVINDA RAO LAYOUT. 7. SMT. NAGARATHNAMMA, W/O ANANDAKUMAR, AGED ABOUT 49 YEARS, RESIDING AT NO.56, GOVINDA RAO LAYOUT, SWANSILK FACTORY, EASTERN SIDE, NELAMANGALA TOWN, BENGALURU DISTRICT. 8. SMT. BHAGYAMMA, W/O BYREGOWDA, AGED ABOUT 39 YEARS, RESIDING AT NO.113, ARISHINAKUNTE, NELAMANGALA TALUK - 561 103. …RESPONDENTS (BY SRI.N.R.JAGADEESWARA, ADVOCATE FOR R-1 TO R-4) - 3 - NC: 2025:KHC:10369 RSA No. 2159 of 2023 THIS RSA IS FILED UNDER SECTION 100 OF THE CODE OF CIVILL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 29.09.2023 PASSED IN R.A.NO.113/2019 ON THE FILE OF VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 06.06.2019 PASSED IN OS NO.691/2016 (OLD NO.226/2008) ON THE FILE OF SENIOR CIVIL JUDGE, AT NELAMANGALA. THIS RSA, COMING ON FOR ADMISSION, 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 29.09.2023 passed in R.A.No.113/2019, by the learned VI Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru, and the judgment and preliminary decree dated 06.06.2019 passed in O.S.No.691/2016 (old No.226/2008), by the learned Senior Civil Judge at Nelamangala. - 4 - NC: 2025:KHC:10369 RSA No. 2159 of 2023 2. For convenience, the parties are referred to based on their ranking before the Trial Court. The appellant herein was plaintiff No.1, respondents No.1 to 7 were the defendants and respondent No.8 was plaintiff No.2. 3. Brief facts leading rise to the filing of this appeal are as follows: 4. The plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that, the plaintiffs are the daughters of defendant No.1. Defendants No.2 to 7 are the children of defendant No.1. The plaintiffs and defendants constitute a Hindu Undivided Joint Family. The suit schedule properties are the ancestral properties of the plaintiffs and defendants. The plaintiffs and defendants are in joint possession and enjoyment of the suit schedule properties. No partition is effected between the plaintiffs and defendants. The plaintiffs demanded partition and separate possession, but the defendants refused to effect the partition. It is contended that, defendant No.1 tried to alienate the suit - 5 - NC: 2025:KHC:10369 RSA No. 2159 of 2023 schedule properties. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 5. Defendant No.1 filed a written statement. Defendant Nos.2 to 4 and 6 adopted the written statement filed by defendant No.1. Defendant No.1 admitted the relationship between the parties. It is contended that as per the order passed in R.A.No.98/1999 on the file of the learned I Additional District and Sessions Judge, Tumkur, the suit schedule properties fell to the share of defendant No.1 and defendant No.1 became the absolute owner in possession of the suit schedule properties. 5.1. It is contended that there was a partition between defendant No.1 and his sons, and they divided the suit schedule properties under a Palu Patti dated 13.10.1999. Based on the Palu Patti, the names of defendant No.1 and his sons were entered in the revenue records, and defendant No.2 mortgaged the properties fell to his share to PLD Bank, Nelamangala and availed loan. - 6 - NC: 2025:KHC:10369 RSA No. 2159 of 2023 It is contended that the suit schedule properties are no longer the ancestral properties of the plaintiffs and the defendants. 5.2. It is contended that defendant No.1 executed a registered Gift Deed dated 12.07.1999 in favour of defendant No.5 regarding site No.426 and another Gift Deed in favour of defendant No.7 with respect to site No.429 measuring 30'x40' feet. It is contended that the defendants No.1 to 4 sold site bearing No.16, at Baddihalli Village, in favour of Jayalakshmamma to perform the marriage of the plaintiffs. It is contended that golden articles were given to the plaintiffs at the time of their marriage. It is contended that the plaintiffs are not entitled to any share in the suit schedule properties. Hence, they prays to dismiss the suit with costs. 6. Though summons were duly served on defendant Nos.5 and 7, they remained un-represented, and they were placed ex-parte. - 7 - NC: 2025:KHC:10369 RSA No. 2159 of 2023 7. The Trial Court, based on the pleadings of the parties, framed the relevant issues. To substantiate their case, plaintiff No.1 herself examined as PW-1, examined one witness as PW-2 and marked 40 documents as Exhibits P-1 to P-40. On the other hand, defendants No.1 to 4 examined themselves as DW-1, DW-2, DW-4 and DW-6, examined two witnesses as DW-3 and DW-5, and marked 31 documents as Exhibits D-1 to D-31. 8. The Trial Court, after recording the evidence, hearing on both sides and on assessment of oral and documentary evidence, dismissed the suit of the plaintiffs with costs, vide judgment dated 06.06.2019. The plaintiffs, aggrieved by the judgment and decree passed in O.S.No.691/2016 filed an appeal in R.A.No.113/2019, on the file of the VI Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru. 9. The appellate Court, on re-assessment of the oral and documentary evidence, dismissed the appeal vide - 8 - NC: 2025:KHC:10369 RSA No. 2159 of 2023 judgment dated 29.09.2023. Plaintiff No.1, aggrieved by the impugned judgments, filed this regular second appeal. 10. Heard the argument of the learned counsel for plaintiff No.1. 11. Learned counsel for plaintiff No.1 submits that the document relied upon by defendant No.1 to prove the factum of partition is not admissible. The said document, termed as 'Palu Patti', is an unregistered document, and the Trial Court as well as the First Appellate Court have committed an error in relying on the unregistered Palu Patti. 11.1. He submits that the plaintiffs are the daughters of defendant No.1. They are the coparceners as per Section 6 of the Hindu Succession (Amendment) Act, 2005. No partition is effected between the plaintiffs and the defendants. Therefore, the plaintiffs are entitled to a share in the suit schedule properties. He also submits that the partition is not registered. Hence, the plaintiffs are - 9 - NC: 2025:KHC:10369 RSA No. 2159 of 2023 entitled to a share in the suit schedule properties. Hence, on these grounds, he prays to allow the appeal. 12. Perused the records and considered the submission of the learned counsel for the parties. 13. It is not disputed that defendant No.1 acquired the property in a partition between him and his brothers in R.A.No.98/1999. After acquiring the properties under a decree passed in R.A.No.98/1999, the properties were transferred in the name of defendant No.1. He became the absolute owner of the suit schedule properties. Defendant No.1 and his sons divided the suit schedule properties, under a Palu Patti dated 13.10.1999. The parties have acted on the Palu Patti. The names of defendant No.1 and his sons were entered in the revenue records as per Palu Patti dated 13.10.1999. 15. Before 2005, under Hindu Law, it was not necessary for a partition to be effected by a registered Partition Deed. Oral partition was permissible. Under those circumstances, when the factum of partition is - 10 - NC: 2025:KHC:10369 RSA No. 2159 of 2023 evidenced by entries in the record of rights, maintained in the official course of business, the correctness thereof was not questioned. It corroborates with the oral evidence made by defendants No.1 to 4. The Hon'ble Apex Court in the case of Digambar xx Patil Vs. xx reported in AIR 1995 SC 1728, held that, the entries in record of rights regarding the factum of partition is a relevant piece of documentary evidence in support of the oral evidence. Admittedly, in the case on hand, PW-1 has admitted about the partition between her father and brothers. Admittedly, the plaintiffs have not challenged the entries in the name of defendants No.1 to 4 and also not challenged the Palu Patti executed between defendant No.1 and his sons as per Exs.D-5 to D-8, and further based on the revenue records, defendant No.1 executed a Gift Deed dated 12.07.1999 in favour of defendant No.7 concerning site bearing No.429 and also executed another Gift Deed in favour of defendant No.5 on 12.07.1999 in respect of site No.426. However, defendants No.1 to 4 sold site bearing No.16 in favour of Jayalakshmamma. The plaintiffs have - 11 - NC: 2025:KHC:10369 RSA No. 2159 of 2023 neither challenged the registered Sale Deed, Palu Patti, the revenue records nor the registered Gift Deeds dated 12.07.1999, executed by defendant No.1 in favour of defendants No.7 and 5. Defendant No.1 and his children have acted on the Palu Patti. 16. As of the date of amendment to Section 6 of the Hindu Succession (Amendment) Act, 2005, there was a partition effected between defendant No.1 and his sons. The proviso to sub-section (1) of Section 6 of the Act, 1956, contemplates that the alienation including any partition effected before 20.12.2004 is saved. Admittedly, Palu Patti was effected on 13.10.1999, i.e. before 20.12.2004. 17. The Trial Court, considering the law laid down by the Hon'ble Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and others reported in (2020)9 Supreme Court Cases 1 and also considering the admission of PW-1, who has admitted the execution of a Partition Deed between her father and brothers, observed that the - 12 - NC: 2025:KHC:10369 RSA No. 2159 of 2023 plaintiffs had the knowledge regarding the said partition, however, they did not challenge the partition effected in 1999, till 2016. 18. As observed above, there was a partition before 20.12.2004. Hence, the plaintiffs are not entitled to a share in the suit schedule properties. As of the date of filing of the suit, the suit schedule properties were not the ancestral joint family properties of the plaintiffs and defendants, and there was a severance of status. 14. Both the Trial Court and the First Appellate Courts have recorded the concurrent findings and passed the impugned judgments. Hence, I do not find any error in the impugned judgments nor any substantial questions of law would arise for consideration in this appeal. Accordingly, I proceed to pass the following: ORDER i) The Regular Second Appeal is dismissed. - 13 - NC: 2025:KHC:10369 RSA No. 2159 of 2023 ii) The impugned judgment and decree dated 29.09.2023 passed in R.A.No.113/2019 by the learned VI Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru and the judgment and decree dated 06.06.2019 passed in O.S.No.691/2016 by the learned Senior Civil Judge, Nelamangala, are hereby confirmed. iii) No order as to costs. In view of the disposal of the main appeal, I.A.No.1/2023 for Temporary Injunction does not survive for consideration and is accordingly disposed of. Sd/- (ASHOK S.KINAGI) JUDGE BMV* List No.: 1 Sl No.: 34