- 1 - NC: 2025:KHC-D:6028 WP No. 106670 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 106670 OF 2017 (GM-CPC) BETWEEN: 1. SMT. PRATIBHA W/O. TIPPANNA BHARADI AGE: 37 YEARS, OCC: HOUSEWIFE, R/O. BYADAGI, NOW RESIDING AT. C/O. CHIKKAPPA KAMBALI, NEAR MAILAMMANA TEMPLE, KURABAGERI, RANEBENNUR. 2. KUMARI. NANDANI D/O. TIPPANNA BHARADI AGE: 17 YEARS, OCC: STUDENT, R/O. BYADAGI, NOW RESIDING AT. C/O. CHIKKAPPA KAMBALI, NEAR MAILAMMANA TEMPLE, KURABAGERI, RANEBENNUR. 3. KUMARI. SANGEETA D/O. TIPPANNA BHARADI AGE: 14 YEARS, OCC: STUDENT, R/O. BYADAGI, NOW RESIDING AT. C/O. CHIKKAPPA KAMBALI, NEAR MAILAMMANA TEMPLE, KURABAGERI, RANEBENNUR. 4. KUMARI. ISHWARYA D/O. TIPPANNA BHARADI AGE: 12 YEARS, OCC: STUDENT, R/O. BYADAGI, NOW RESIDING AT. C/O. CHIKKAPPA KAMBALI, NEAR MAILAMMANA TEMPLE, KURABAGERI, RANEBENNUR, (SINCE THE PEITIONER NOS.2 TO 4 ARE MINORS REPRESENTED BY THEIR NATURAL MOTHER GUARDIAN THE PEITIONERS NO.1 Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.04.19 10:42:29 +0530 - 2 - NC: 2025:KHC-D:6028 WP No. 106670 of 2017 SMT. PRATIBHA W/O. TIPPANNA BHARADI) …PETITIONERS (BY SRI. N.R.KUPPELUR, ADVOCATE) AND: 1. TIPPANNA S/O. NINGAPPA BHARADI AGE: 48 YEARS, OCC: COOLIE, R/O. HANSHABHAVI ROAD, NEAR BEERAPPAN GUDI, BYADAGI, DIST: HAVERI. 2. KRISHNAPPA S/O. PARAMEHSWARAPPA HOMBARDI, AGE: 53 YEARS, OCC: BUSINESS AND AGRICULTURE, R/O. GUMMANNAHALLI, TQ: BYADAGI, DIST: HAVERI. …RESPONDENTS (NOTICE TO R1 IS SERVED; NOTICE TO R2 IS HELD SUFFICIENT) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO, ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED 19.06.2017 ON IA NO.15 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC BYADAGI IN OS NO.83/2012 AS PER ANNEXURE-F AND ETC. THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM - 3 - NC: 2025:KHC-D:6028 WP No. 106670 of 2017 ORAL ORDER The captioned petition is filed by the plaintiffs feeling aggrieved by the order of the trial Court passed on I.A.No.15 filed by plaintiffs under Order 1 Rule 10(2) read with Section 151 of CPC requesting the Court to permit the plaintiffs to implead proposed impleading applicant as defendant No.4. The said application is rejected by the trial Court which is now impugned in the present case on hand. 2. Heard learned counsel for the petitioners. Perused the order under challenge. 3. Plaintiffs have filed a suit for partition and separate possession in O.S.No.83/2012. Plaintiffs have come up with this application in I.A.No.15 alleging that pending suit, defendant No.2 has sold the suit schedule property to the proposed impleading applicant i.e., defendant No.4. 4. In response to the application filed by the plaintiffs seeking to implead him as a party to the suit, the - 4 - NC: 2025:KHC-D:6028 WP No. 106670 of 2017 proposed defendant No.4 has filed objections, contending that he has not purchased the suit schedule property from defendant No.2. On the contrary, he submits that he has instituted a separate suit in O.S.No.149/2012 against his brother, defendant No.2, asserting his own claim for partition and separate possession of their joint family properties, which include the suit schedule property. He further submits that in the said suit, the suit schedule property has been allotted to his share as part of the partition proceedings. Therefore, according to the proposed defendant No.4, his inclusion as a party in the present proceedings is neither necessary nor justified, since defendant No.2 is party to the present suit. 5. The Trial Court, while considering the application filed by the plaintiffs, observed that there is no conclusive evidence in the form of a registered sale deed or any other valid document to establish that defendant No.2 has transferred or sold the suit schedule property to the proposed defendant No.4 during the pendency of the - 5 - NC: 2025:KHC-D:6028 WP No. 106670 of 2017 suit. In the absence of such documentary proof, the Trial Court declined to grant the relief sought by the plaintiffs at this interlocutory stage. The Court further recorded that the plaintiffs’ interests, if ultimately recognized by way of a decree, would be adequately protected under the doctrine of lis pendens as enshrined in Section 52 of the Transfer of Property Act, 1882. Consequently, the Trial Court rejected the application filed by the plaintiffs seeking impleadment of the proposed defendant No.4. 6. The present suit has been instituted by the plaintiffs against defendant No.1, who is the husband of plaintiff No.4 and the father of plaintiff Nos.1 to 3. The plaintiffs have alleged that defendant No.1 has alienated the suit schedule property in favour of defendant No.2 without their consent. It is further brought to the Court’s notice that there is a separate civil dispute pending between defendant No.2 and the proposed defendant No.4, wherein it appears that the suit schedule property - 6 - NC: 2025:KHC-D:6028 WP No. 106670 of 2017 has now been allotted to the share of proposed defendant No.4. 7. The crucial issue that arises for determination in the present suit is whether the suit schedule properties are indeed joint family ancestral properties belonging to the plaintiffs and defendant No.1, and if so, whether defendant No.1 had the legal authority to unilaterally alienate such property to defendant No.2. The plaintiffs are required to discharge the burden of proving that the suit properties form part of the joint family estate. Should the plaintiffs succeed in establishing this claim, and if the Court consequently holds that they have a legal and independent share in the said properties, the Court may proceed to pass a preliminary decree recognizing their respective shares. In such an event, the alienation made by defendant No.1 in favour of defendant No.2 would not bind the plaintiffs’ share, and the preliminary decree would be binding not only on defendant No.2 but also on the proposed defendant No.4, even if he is not formally - 7 - NC: 2025:KHC-D:6028 WP No. 106670 of 2017 impleaded at this stage. The Court has also noted the contention raised by the proposed defendant No.4 that since his brother, defendant No.2, is already a party to the suit, his own presence is not necessary. However, this contention is subject to further adjudication based on the merits of the case. 8. In light of the foregoing discussion, the writ petition filed by the plaintiffs challenging the Trial Court’s rejection of their application stands dismissed. Nonetheless, it is clarified that this dismissal shall not prejudice the plaintiffs’ substantive rights in the suit. The plaintiffs are at liberty to adduce evidence and substantiate their claim that the suit schedule properties are joint family ancestral properties. If they succeed in doing so, it would follow that the alienation made by defendant No.1 in favour of defendant No.2, and any subsequent transfer or allotment in favour of the proposed defendant No.4, would not bind the plaintiffs’ lawful share. The Trial Court shall adjudicate the matter on its merits in - 8 - NC: 2025:KHC-D:6028 WP No. 106670 of 2017 accordance with law, uninfluenced by the dismissal of the present writ petition. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE CA CT:VH List No.: 1 Sl No.: 13