- 1 - HC-KAR NC: 2025:KHC:38306 RFA No. 1013 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA REGULAR FIRST APPEAL NO.1013 OF 2023 (PAR) BETWEEN: 1. SRI. ULLASAPPA S/O JOSEPH, AGED ABOUT 43 YEARS, RESIDING AT NO.107, MASTRAYAPALYA, DR. SHIVARAMAKARANTH ROAD, BENGALURU-560 077. 2. BALAMMA W/O ARALAPPA D/O JOSEPH, AGED ABOUT 47 YEARS, R/AT RACHENAHALLI VILLAGE AND BAKALE, MASTRAYAPALYA, DR. SHIVARAMAKARANTHANAGAR, BENGALURU-560 077. …APPELLANTS (BY SRI RAMACHANDRA HALINATHOTA, ADVOCATE) AND: 1. SRI JOSEPH S/O LATE ANTHONAPPA, AGED ABOUT 77 YEARS, RESIDING AT NO.106, MASTRYAPALYA, DR. SHIVARAMAKARANTHANAGAR, BENGALURU-560 077. Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:38306 RFA No. 1013 of 2023 2. SMT. SHAKUNTHALAREDDY AGED ABOUT 52 YEARS, R/AT NO.446, 16TH CROSS, BEML LAYOUT, 1ST STAGE, BASAVESHWARANAGAR, BENGALURU. REP. BY GPA HOLDER SRI KRISHNAMURTHY. 3. SRI MAHENDRA SUNDARAMURTHY S/O LATE K. SUNDARAMURTHY, AGED ABOUT 51 YEARS, RESIDING AT NO.1/3, CUNNINGHAM ROAD, BENGALURU-560001. …RESPONDENTS (BY SRI CHANDRAKALA E., ADVOCATE FOR R-1; SRI SAMPATH ANAND SHETTY, ADVOCATE FOR R-3; V/O. DATED 04.08.2025, NOTICE TO R-2 D/W) THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 15.03.2022 PASSED IN O.S.NO.6178/2016 ON THE FILE OF THE LVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-59), BENGALURU CITY, DISMISSING THE SUIT FOR PARTITION. THIS APPEAL COMING ON FOR ORDER, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA - 3 - HC-KAR NC: 2025:KHC:38306 RFA No. 1013 of 2023 ORAL JUDGMENT The present appeal is preferred by the plaintiffs assailing the judgment and decree dated 15.03.2022 passed in O.S. No.6178/2016 on the file of LVIII Additional City Civil and Sessions Judge, Bengaluru City (CCH-59) (‘Trial Court’ for short), whereby the suit of the plaintiffS for partition and separate possession came to be dismissed. 2. Accompanying the appeal, I.A.No.1/2023 is filed to condone the delay of 303 days in preferring the appeal. 3. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondents. 4. Learned counsel for the appellants submits that: i. The trial Court has committed a serious error in holding that the suit schedule properties are the self- - 4 - HC-KAR NC: 2025:KHC:38306 RFA No. 1013 of 2023 acquired properties of defendant No.1. Further, submits that the properties were acquired out of an oral partition of 1962, which fell to the share of defendant No.1, and hence the same constitute ancestral / joint family properties in which the appellants, being the children of defendant No.1, have a vested right. ii. The sale deeds dated 07.12.1994 and 21.09.1995 executed by defendant No.1 in favour of defendant Nos.2 and 3 are not binding upon the plaintiffs / appellants. That defendant No.1 could not have lawfully alienated the joint family properties without legal necessity or prior permission of the Court. That the findings recorded by the trial Court are contrary to the settled principles of law governing joint family property and therefore, the impugned judgment is unsustainable and liable to be set aside. iii. The appellant submits that the delay of 303 days in preferring the appeal occurred due to the bonafide reasons and unavoidable circumstances, which were - 5 - HC-KAR NC: 2025:KHC:38306 RFA No. 1013 of 2023 neither intentional nor deliberate, and the delay be condoned and if the delay is not condoned, the appellants would suffer grave prejudice and lose their lawful share in the joint family properties. 5. Per contra, learned counsel for the respondents submits that the suit schedule properties were the acquired properties of defendant No.1 by virtue of a registered partition deed dated 20.06.1987-Ex.D1, in which the plaintiffs have any coparcenery rights. The sale deeds dated 07.12.1994 and 21.09.1995 executed by defendant No.1 in favour of defendant Nos.2 and 3 are valid and pursuant to the sale deeds executed in favour of defendant Nos.2 and 3, mutation has been effected, conversion has been made in respect of the lands and the taxes have been paid, all in support of defendant Nos.2 and 3. The burden of proof is on the appellants/plaintiffs to establish the existence of the joint family property and partition, and non-examination of defendant No.1 does not automatically scale if the appellants’ own evidence are - 6 - HC-KAR NC: 2025:KHC:38306 RFA No. 1013 of 2023 vague. Placing reliance upon the decision of the Apex Court in the case of Shivamma (Dead) by LRs Vs. Karnataka Housing Board and others1 (Shivamma), it is contended that the explanations offered for the delay in the affidavit are insufficient and the appellants have to show specific and credible reasons for each portion for 303 days’ delay, rather than giving vague reasons. 6. Having heard the learned counsel for the parties, the point that arises for consideration is: “i. Whether the appellants have shown sufficient cause to condone the delay of 303 days in filing the appeal? ii. Whether the impugned judgment and decree of the Trial Court warrants any interference in the present facts and circumstances of this case?” 7. Point Nos.i and ii are taken together to avoid repetition of facts. 8. For the purpose of condonation of delay in filing of an appeal or application beyond the stipulated period of 1 Civil Appeal No.11794/2025 - 7 - HC-KAR NC: 2025:KHC:38306 RFA No. 1013 of 2023 limitation, the delay has to be explained by demonstrating the existence of a ‘sufficient cause’ that resulted in such delay for both prescribed period of limitation as well as the period after the expiry of limitation, upto the actual date of filing such appeal or application. In other words, explanation has to be given for the entire duration from the date when the limitation began to tick, until the date of actual filing. The appellants have filed I.A. No.1/2023 seeking condonation of delay of 303 days in filing the present appeal. The reasons assigned in the affidavit filed in support of the application at paragraph Nos.3 and 4 are as follows: “3. I submit that the grounds made out in the main appeal may kindly be read as part and parcel of this affidavit to avoid repetition of facts. 4. I submit that I was looking after the proceedings before the trial court and my elder sister the plaintiff No.2 was not residing with me and she is staying in her in-laws house and on or after tendering my evidence before the Trial Court. I was not having contact with my advocate who was looking after the case in the trial court.” - 8 - HC-KAR NC: 2025:KHC:38306 RFA No. 1013 of 2023 9. The reasons assigned are vague and general in nature. The appellants have merely stated that the delay occurred due to unavoidable circumstances, but no cogent explanation is forthcoming as to how and why the appeal could not be filed within the prescribed period of limitation. The Apex Court in the case of Shivamma stated supra has reiterated that administrative lethargy or vague explanation can never be accepted as grounds for condoning the delay. The Apex Court, while examining Section 5 of the Limitation Act, 1963 and the conflicting judicial views on ‘within such period’, held that ‘within such period’ covers both the prescribed limitation period and the period thereafter till actual filing. Hence, explanation must extend to the entire continuum. Reiterated that ‘sufficient cause’ requires ‘absence of negligence, inaction or malafides’. The Apex Court observed that condonation is an exception, not the rule, discretion must be exercised judicially, not mechanically. Applying this principle, the explanation offered by the - 9 - HC-KAR NC: 2025:KHC:38306 RFA No. 1013 of 2023 appellants falls short of the requirement of law and is therefore unacceptable. 10. Even otherwise, this Court has considered the appeal on merits. The trial Court, upon a detailed appreciation of oral and documentary evidence, has categorically held that the suit schedule properties are the self-acquired properties of defendant No.1, acquired under a registered partition deed dated 20.06.1987, and that the sale deeds executed in favour of defendant Nos.2 and 3 are valid and binding. The plaintiffs failed to establish the plea of oral partition of 1962 or produce any evidence to establish that the properties were joint family or ancestral in nature. On the contrary, the plaintiffs themselves admitted that defendant No.3 has been in possession of the properties since 1994 pursuant to the registered sale deed. In such circumstances, the findings of the trial Court are supported by evidence and do not call for interference, thus, the appeal is also devoid of merits. Hence, the points - 10 - HC-KAR NC: 2025:KHC:38306 RFA No. 1013 of 2023 framed for consideration are answered accordingly and this Court pass the following: ORDER i. The regular first appeal is hereby dismissed both on the ground of delay and on merits. ii. I.A.No.1/2023 filed by the appellants for condonation of delay of 303 days in preferring the appeal is hereby rejected, as the appellants have failed to establish sufficient cause for the delay. Sd/- _____________________ JUSTICE K.S. HEMALEKHA MBM List No.: 1 Sl No.: 22