- 1 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 3RD DAY OF FEBRUARY 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO.100293 OF 2019 (PAR/POS) BETWEEN: 1. SMT. ASHWINI W/O ARUN JADHAV AGE: 50 YEARS, OCC: HOUSEHOLD, R/O: H.NO.153, KHADE BAZAR, SHAHAPUR, BELAGAVI, TQ & DIST: BELAGAVI-590003. 2. SMT. SMITA D/O ARUN JADHAV AGE: 25 YEARS, OCC: STUDENT, R/O: H.NO.153, KHADE BAZAR, SHAHAPUR, BELAGAVI, TQ & DIST: BELAGAVI-590003. 3. SMT. SUDHA W/O PARASHURAM JADHAV AGE: 59 YEARS, OCC: HOUSEHOLD R/O: H.NO.153, KHADE BAZAR, SHAHAPUR, BELAGAVI, TQ & DIST: BELAGAVI-590003. 4. SMT. UJWALA W/O PRAVEEN PATIL AGE: 32 YEARS, OCC: HOUSEHOLD R/O: H.NO.153, KHADE BAZAR, SHAHAPUR, BELAGAVI, TQ & DIST: BELAGAVI-590003. 5. SRI. AKSHAY S/O ARUN JADHAV AGE: 29 YEARS, OCC: SERVICE MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.03.01 11:07:47 +0530 - 2 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 R/O: H.NO.153, KHADE BAZAR, SHAHAPUR, BELAGAVI, TQ & DIST: BELAGAVI-590003. …APPELLANTS (BY SRIYUTHS. D. RAVIKUMAR GOKAKAKAR AND CHETANA S. BIRAJ, ADVS, SRI. HANUMANTHAREDDY SAHUKAR, ADV FOR A3) AND: 1. SMT. RENUKA D/O DATTATRAYA JADHAV A/M: SMT. LAXMI W/O NARAYAN KINEKAR, AGE: 62 YEARS, OCC: HOUSE HOLD, R/O: 263, MUJAWAR GALLI, BELAGAVI, TQ & DIST: BELAGAVI-590001. 2. SMT. ANUSAYA D/O DATTATRAYA JADHAV A/M SMT. SHARADA W/O CHANDRAKANT KHANDEKAR, AGE: 57 YEARS, OCC: HOUSE HOLD, R/O: H.NO.13, SHIVAJI NAGAR, 5TH CROSS, BELAGAVI, TQ & DIST: BELAGAVI-590001. 3. SMT. SUNITA D/O DATTATRAYA JADHAV A/M SMT. SHEETA W/O CHANDRAKANT KHANDEKAR, AGE: 57 YEARS, OCC: HOUSEHOLD, R/O: H.NO.13, SHIVAJI NAGAR, 5TH CROSS, BELAGAVI, TQ & DIST: BELAGAVI-590001. …RESPONDENTS (BY SRI. DINESH M. KULKARNI, ADV. FOR R1 TO R3) THIS RFA IS FILED UNDER SEC. 96 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DTD 24.04.2019 PASSED IN O.S.NO.351/2012 ON THE FILE OF THE IV ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BELAGAVI, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. - 3 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellants challenging the judgment and preliminary decree dated 24.04.2019 passed in O.S. No.351/2012 by the learned IV Additional Senior Civil Judge and JMFC, Belagavi. 2. For convenience, the parties are referred to, based on their ranking before the trial Court. Appellant Nos.1 and 2 are the legal representatives of defendant No.3, appellant Nos.3 and 4 were defendant Nos.4 and 5, appellant No.5 was defendant No.6 and the respondents were the plaintiffs. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the - 4 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 plaintiffs that, deceased Gundu Jadhav was the original propositus and he had a wife by name Parvathibai. Gundu Jadhav died on 24.07.1985 and Smt. Parvathibai died on 07.10.1997. Defendant No.1 is the son of deceased Gundu Jadhav and Smt. Parvathibai. Defendant No.2 is the wife of defendant No.1. The plaintiffs and defendant No.3 are the children of defendant No.1 and defendant Nos.4 and 5 are the wife and daughter of deceased Parashuram. Parashuram died on 27.08.2011. Defendant No.6 is the son of defendant No.3. The suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants. They are in joint possession and enjoyment of the same. The suit schedule properties are neither personal nor exclusive properties of the defendants. The deceased Gundu Jadhav and his wife Smt. Parvathibai purchased properties bearing CTS No.153 situated at Khade Bazar, Belagavi, under a registered sale deed dated 03.01.1941 for a sale consideration of Rs.700/- from Shri. Pandurang Ganesh Velangi. The Katha of the said property was transferred in the name of Gundu - 5 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 Jadhav. The suit schedule property originally belonged to Gundu Jadhav and after his death Smt. Parvathibai, the plaintiffs and the defendants inherited the above mentioned property and they came in possession of the suit schedule properties as co-owners. After the death of Gundu Jadhav and Smt. Paravthibai, the khata of ‘A’ schedule property was transferred in the name of defendant No.1 by inheritance, and ‘B’ schedule property was purchased in the name of defendant No.1 by investing joint family funds. Defendant No.1’s name was entered in the CTS records. Defendant No.1 had no exclusive right over the properties. The suit schedule properties are not the self-acquired properties of defendant No.1. Defendant No.1 was suffering from the ailment. Defendant No.3 i.e., Arun and his wife took undue advantage of his illness and illiteracy of Smt. Laxmibai, took control of the family affairs as well as the suit properties. The plaintiffs are looking after the welfare of defendant Nos.1, and 2. Deceased Parashuram and defendant No.6 i.e., Akshay created a sham, fictitious and colourable document styled - 6 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 as an alleged deed of partition dated 18.08.2007 in respect of CTS No.153. The plaintiffs are not parties to the said alleged partition deed. Defendant Nos.3 and 6 manipulated the records and created a gift deed dated 18.12.2009 in respect of CTS No.153 in favour of defendant No.3 and one more document was created styled as alleged gift deed dated 24.12.2009 in respect of ‘B’ schedule property in favour of defendant No.6. Defendant No.1 has no right to execute a registered gift deed in favour of defendant No.3. The plaintiffs demanded a partition and separate possession, but the defendants refused to effect a partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 4. Defendant Nos.3(a), 3(b) and 6 filed a written statement admitting the relationship between the parties to the suit and denied the averments made in the plaint. It is contended that, the plaintiffs and other defendants have no right, title or interest over the ‘B’ schedule properties. Defendant No.1 purchased CTS No.6156 under - 7 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 a registered sale deed 15.02.1963. Based on the registered sale deed, defendant No.1 was in possession and enjoyment of ‘B’ schedule properties as an absolute owner and the plaintiffs have no right to claim a share in the suit schedule properties. It is contended that defendant No.1 executed a registered gift deed in favour of deceased Arun i.e. defendant No.3, who is the son of defendant Nos.1 and 2 on 24.12.2009 i.e. husband of defendant No.3(a) and father of defendant No.3(b). It is further contended that, Shri Arun Dattatraya Jadhav had availed loan of Rs.1,50,000/- from Markandeya Co- operative Society, Belagavi by mortgaging the suit properties bearing CTS Nos.6156, 6157, 6158 and 6159. Arun Jadhav mortgaged the said properties in favour of the Bank vide registered mortgage deed dated 18.01.2011 and he acquired title based on the registered gift deed dated 24.12.2009. Further, defendant No.1 and his son partitioned the property bearing CTS No.153 measuring 720.75 sq.ft situated at Khade Bazar, Shahapur, Belgaum, by partition deed dated 18.08.2007 and defendant No.1 - 8 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 has executed a gift deed dated 18.12.2009 in favour of defendant No.6 regarding the property bearing CTS No.153. The plaintiff has suppressed the said fact and has filed the present suit. Hence, pray to dismiss the suit. 5. The trial Court, based on the pleadings of the parties, framed the following issues: “1. Whether the plaintiffs prove that propositus late Gundu acquired the suit schedule properties from his income and augmentation of such income forming joint family nucleus? And there was no partition between himself and defendant No.1 ? 2. Whether the plaintiffs prove that defendant No.3 in collusion with his wife and children created void document styled as a partition deed dated: 18.08.2007 in respect of CTS No.153 ? 3. Whether the plaintiffs further prove that defendant No.3 his wife defendant No.6 manipulated created void document styled gift deed dated: 18-12-2009 in favour of defendant No.6 and another gift deed dated: 24-12-2009 in favour of defendant No.3 in respect of CTS No.6155 to 6159? 4. Whether the plaintiffs are entitled for share in the suit property? If so, how much? 5. What order or decree ? Additional Issues: - 9 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 1. Whether the defendant No.3A and 3B and defendant No.6 prove that the property bearing CTS No.6155 to 6159 were self acquired property of the defendant No.1? 2. Whether the defendant No.3(A), 3(B) and 6 prove that the defendant No.1 is in permissive possession of eastern middle and western side portion of CTS No.6155 to 6159?” 6. The plaintiffs to substantiate their case, plaintiff No.1 was examined as PW.1, and marked 66 documents as Exs.P-1 to P-66. In rebuttal, defendant No.3(a) was examined as DW.1 and also examined 4 witnesses as DWs.2 to 5, and marked 32 documents as Exs.D-1 to D-32 7. The trial Court, after recording the evidence, hearing on both sides, and on the assessment of the oral and documentary evidence, answered issue No.1 in the affirmative, issue Nos.2 and 3, and additional issue Nos.1, and 2 in the negative, and issue Nos.4 and 5 as per final order. The suit of the plaintiffs was decreed in part with cost vide judgment dated 24.04.2019. It is declared that, the plaintiffs and the defendants are entitled to their legitimate shares in the suit schedule properties. - 10 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 8. Defendant Nos.3(a), 3(b) and 6, aggrieved by the judgment and preliminary decree dated 24.04.2019 passed in O.S. No.351/2012, have filed this regular first appeal. 9. Learned counsel for defendants Nos.3(a), 3(b) and defendant No.6 submits that, CTS Nos.6156-6159 are the self-acquired properties of defendant No.1. He submits that, defendant No.1 executed a registered gift deed in favour of Arun Jadhav and executed a registered gift deed in favour of defendant No.6 regarding CTS No.153. He submits that Arun Dattatraya Jadhav died leaving behind defendants Nos.3(a) and (b), and defendant Nos.3(a) and 3(b) inherited the properties of Arun Dattatraya Jadhav. He submits that the names of defendant Nos.3(a) and (b) appear in the Revenue Records. He also submits that defendant No.1 executed a registered gift deed in favour of defendant No.6 regarding CTS No.153. They became the absolute owners of the - 11 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 suit schedule properties. He submits that, the plaintiffs have to establish their case independently and they cannot depend on the weakness of the defendants. He also submits that, the admission made by defendant No.1 in the written statement, is not a conclusive proof. He submits that, the trial Court has committed an error in casting the burden of proof on the defendants. He further submits that, if this Court concludes that, the suit schedule properties are the ancestral properties and the joint family properties, he prays to hold the gift deed as valid to the extent of the share of defendant No.1. Hence, on these grounds, he prays to modify the judgment and decree passed by the trial Court. 10. Per contra, learned counsel for the plaintiffs submits that all the suit schedule properties are the ancestral properties of the plaintiffs and the defendants. The suit properties are purchased by Gundu Jadhav. After his demise, the plaintiffs and the defedants inherited the suit schedule properties. He submits that, defendant No.1 - 12 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 had no source of income for purchasing CTS Nos.6157- 6159. The properties have been purchased out of the joint family nucleus and the said properties are the joint family properties of the plaintiffs and the defendants. Defendant No.1 had no right to execute a gift deed in favour of Arun Dattatraya Jadhav and CTS No.153 in favour of defendant No.6 and registered deeds were executed by defendant No.1 in favour of Arun Dattraya and defendant No.6, is not binding on the share of the plaintiffs. He submits that, in a suit for partition and separate possession, initially, the burden is on the plaintiffs to prove the nature of the suit schedule properties and the relationship, but in view of the admission by defendant No.1 in the cross examination, the trial Court was justified in recording its finding that, the suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants. He submits that, the plaintiffs are the co-parceners, as the plaintiffs are the daughters of defendant No.1. As per Section 6 of the Hindu Succession (Amendment) Act, 2005, the plaintiffs are equally entitled to a share as that of a son. - 13 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 He further submits that, though, the trial Court has decreed the suit, did not quantify the share. Hence, on these grounds, he prays to modify the judgment and decree passed by the trial court, by quantifying the shares. 11. Perused the records, and considered the submissions of the learned counsel for the parties. 12. The points, that arise for our consideration are: i) Whether the plaintiffs prove that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants? ii) Whether defendant No.1 proves that CTS No.6157 to 6159 are the self acquired properties of defendant No.1? iii) Whether the trial Court committed an error in not upholding the registered gift deeds to the extent of the share of defendant No.1? iv) What order or decree? - 14 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 13. Point No.(i): It is not in dispute that, Gundu Jadhav was the original propositus. He had a wife by name Parvathibai. Defendant No.1 is the son of Gundu Jadhav. Gundu Jadhav died on 24.07.1985 and Smt. Parvathibai died on 07.10.1997. It is the case of the plaintiffs that, the suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants. The plaintiffs and the defendants are the members of the Hindu joint family, and there is no partition effected between the parties to the suit. The plaintiffs requested the defendants to effect a partition, but the defendants refused to effect a partition. 14. The plaintiffs, to substantiate that, the suit schedule properties are the ancestral joint family properties of the plaintiffs, and the defendants, the plaintiffs produced the documents, whereby Ex.P-1 is the Ruled Card, which discloses that, defendant No.1 is the holder of the property bearing CTS No.153. Ex.P-2 is the Extract From The Property Register Card regarding CTS - 15 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 Nos.6155 which stood earlier in the name of defendant No.1 and the new holder as Arun Dattatraya Jadhav; Ex.P- 3 is the Extract from the Property Register Card of CTS No.6156 which stands in the name of Arun Dattatraya and part of the property bearing CTS No.6155 stands in the name of Arun Jadhav; Ex.P-4 is the Extract from the Property Register Card of CTS No.6157 which stands in the name of Arun Dattratraya, Ex.P5 is the Extract from the Property Register card regarding the property bearing CTS No.6158 which stands in the name of Arun Dattatraya Jadhav; Ex.P-6 is the Extract From the Property Register card with respect to CTS No.6159 which stands in the name of Arun Dattratraya Jadhav; Ex.P-7 is the sketch map issued by the City Survey Department, Ex.P-8 is the rough sketch of the property bearing CTS No.6156; Ex.P-9 is the rough sketch of the property bearing CTS No.6157, Ex.P-10 is the rough sketch of the property bearing CTS No.6158, Ex.P-11 is the rough sketch of the property bearing CTS No.6159, Ex.P-12 is the registered sale deed dated 03.01.1941 and the translation copy of Ex.P-12 is - 16 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 marked as Ex.P-12(a), which discloses that, Gundu Jadhav had purchased the property bearing CTS No.153; Ex.P-13 is the Revenue Receipt which discloses that Gundu Jadhav had paid the property tax for the period 01.04.1997 to 31.03.1998 regarding CTS No.153; Ex.P-14 is the Revenue Receipt, which discloses that Gundu Jadhav had paid the property tax regarding CTS No.153 for the period 01.04.2007 to 31.03.2008. Ex.P-15 is an endorsement issued by Shivaji Marathi School, Belagavi on 15.09.1961; Ex.P-16 is the original Election ID card of defendant No.1; Ex.P-17 is the original Aadhar card of Dattatreya Gundu Jadhav; Ex.P-18 is the Aadhaar Card of Smt. Laxmi Narayan Kinekar; Ex.P-19 is the Aadhaar card of Smt. Sharada C. Khandekar, Ex.P-20 is the Aadhar card of Smt. Sunita Tarihalkar; Ex.P-21 is the Election ID card of Smt. Sunita Jadhav; Ex.P-22 is the marriage invitation card of Smt. Sunita-defendant No.3; Ex.P-23 to 28 are the water bills; Ex.P-29 to P-45 are the electricity bills; Ex.P-46 is the notice dated 13.01.2016 issued to defendant No.1 by Markandeya Co-operative Credit Society, Mannur, - 17 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 Belgaum, calling upon defendant No.1 to pay the loan amount; Ex.P-47 is the legal notice issued by Markandeya Co-operative Credit Society Ltd., to Arun Dattatraya Jadhav, Ramesh Irappa Kusane and Dattatraya Gundu Jadhav calling upon them to pay Rs.2,17,700/- as Arun Dattatraya had availed loan from the Bank by mortgaging House No.254 in CTS Nos.6155 to 6159; Ex.P-48 is the postal cover; Ex.P-49 is the copy of reply by defendant No.1 to the Branch Manager, Markandeya Co-operative Credit Society Limited, wherein he has stated that he is retired from service and suffered paralysis attack, and since 1997 he is not keeping good health, requested not to initiate any legal action against defendant No.1; Ex.P-50 is the postal receipt and Ex.P-51 is the postal acknowledgment; Ex.P-52 is the copy of the letter dated 25.02.2016; Exs.P-53 and P-54 are the receipts for having paid the amount; Ex.P-55 is the statement of accounts of Dattatraya Jadhav-defendant No.1; Ex.P-56 is the medical records of defendant No.1; Ex.P-57 is the death certificate of defendant No.1 dated 17.06.2018; Ex.P-58 is the death - 18 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 certificate of Laxmi D. Jadhav i.e., wife of defendant No.1, dated 20.01.2018; Exs.P-59 and P-60 are the photographs; Ex.P-61 is the CD; Ex.P-62 is the true copy of partition deed and its translation is marked as Ex.P- 62(a); Ex.P.63 is the true copy of gift deed dated 24.12.2009 executed by defendant No.1 in favour of and its translation is marked as Ex.P-63(a); Ex.P-64 is the true copy of the gift deed dated 17.12.2009 and its translation is marked as Ex.P-64(a); Ex.P-65 is a written statement filed by defendant Nos.1 and 2, and Ex.P-66 is the degree marks card of defendant No.1. 15. In rebuttal, defendant No.3(a) was examined as DW.1. She deposed that, CTS Nos.6155-6159 was owned and possessed by defendant No.1 and he had gifted CTS Nos.6155-6159 in favour of Arun Dattatraya Jadhav based on the gift deed marked as Ex.P-63. Based on the said registered gift deed, khata was transferred to the name of Arun Dattatraya Jadhav. The defendants have produced original partition deed dated 18.08.2007 marked as Ex.D-1 - 19 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 and its translation is marked as Ex.D-1(a); Ex.D-2 is the original copy of gift deed dated 17.12.2009 and its translation is marked as Ex.D-2(a); Ex.D-3 is the loan application form submitted by defendant No.1 to the Union Bank of India for a sum of Rs.95,000/-; Ex.D-4 is the true copy of promissory note wherein defendant No.4 obtained loan form the Union Bank of India on 02.05.2016 and executed oath for having availed the amount from the Union Bank of India; Ex.D-5 is the true copy of Guarantee Agreement executed by Laxmibai Dattatraya Jadhav; Ex.D-6 is the copy of Aadhar card of defendant No.1; Ex.D-7 is the Election identity card of defendant No.1; Ex.D-8 is the copy of Aadhar card of Laxmibai Jadhav; Ex.D-9 is the voters identity card of Laxmibai Jadhav; Ex.D-10 is the endorsement issued by Laxmibai Dattatraya Jadhav to the Branch Manager, Union Bank of India, Belgaum; Ex.D-11 is the recommendation for sanction of amount in favour of Dattatraya Jadhav; Ex.D-12 is the letter dated 02.05.2016 regarding inspection report by the officials of Union Bank of India; Ex.D-13 is the credit - 20 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 report; Ex.D-14 is the statement of accounts of defendant No.1; Exs.D-15 is the mortgage loan application, Ex.D-16 is the true copy of loan sanction letter, Ex.D-17 is the true copy of the bond, Ex.D-18 is the true copy of Ration Card, Ex.D-19 is the true copy of the statement of accounts, Exs.D-20 and 21 are the true copies of Encumbrance certificates; Exs.D-22 to D-26 are the true copy of the Ruled card; Ex.D-27 is the true copy of simple mortgage deed entered into by Shri. Arun Dattatraya Jadhav; Ex.D- 28 is the true copy of Form No.17, Ex.D-29 is the postal acknowledgment; Ex.P-30 is the true copy of notice issued by the Markandeya Co-operative Credit Society, Ex.D-31 is the true copy of statement of accounts, and Ex.D-32 is the loan closure certificate dated 03.01.2019. 16. The defendants examined the attesting witness to Ex.D-2 as DW.3. He also deposed that, defendant No.1 has gifted the property bearing CTS Nos.6155-6159 and identified his signature at Ex.D-2. - 21 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 17. Parashuram was examined as DW-4. He is the attesting witness to Ex.D-1-partition deed, wherein he has deposed that, there was a partition effected between the members of the family. 18. From the perusal of the entire evidence on record, it is clear that one Gundu Jadhav was the original propositus. He had a wife by name Parvathibai. Gundu Jadhav purchased the property bearing CTS Nos.6155- 6159 in the name of defendant No.1 out of the income derived from the ancestral properties. Further, defendant Nos.1 and 2 filed a written statement which is marked as Ex.P-65. The signature of defendant No.1 is marked as Ex.D-65(a) and the signature of defendant No.2 is marked as Ex.D-65(b) wherein the admission made by them is reproduced hereunder: “ The parents of defendant No.1 has their own source of income, out of which, they used to maintain the entire joint family. Property bearing CTS No.153, Shahapur Belgavi, is the property purchased by the father of defendant No.1 and the property situated at Khade Bazar, under a - 22 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 registered sale deed dated 03.01.1941 for a sum of Rs.700/- and his name was appearing in the city Survey records as a holder in possession. Later the father of defendant No.1 got constructed a building in the said property and portion of constructed building was made used for residence of the joint family and remaining constructed portion was let out to different tenants. Thereafter, in the year 1962, the father of defendant No.1 also purchased CTS Nos.6155 to 6159 situated at Bharat Nagar, Shahpur, Belagavi for a sum of Rs.1,000/- from Narayan Patil and another under a registered sale deed dated 20.07.1962 in the name of defendant No.1. The entire sale consideration amount required for the purpose of purchase of the said property was paid by late Gundu out of his own earnings. …..” 19. From the said admission of defendant Nos.1 and 2 in the written statement, it is clear that, the suit schedule properties bearing CTS Nos.6155-6159 were purchased by Gundu Jadhav in favour of defendant No.1 and the suit schedule properties are the joint family properties of the plaintiff and the defendants. Further, - 23 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 Gundu Jadhav had purchased CTS No.153 under a registered sale deed marked as Ex.P-12 in 1941. Admittedly, the admission of defendant Nos.1 and 2 is sufficient to hold that the suit schedule properties are the ancestral joint family properties of the plaintiffs and the defendants and they are the members of the Hindu undivided joint family and no partition is effected in between the plaintiffs and the defendants. The plaintiff, being the daughters of Dattratraya, are the co-parceners as per Section 6 of the Hindu Succession (Amendment) Act, 2005 and admittedly, there is no partition effected between the children of Gundu Jadhav. The suit schedule properties are the ancestral joint family properties of the plaintiffs and the defendants. 20. In view of the above discussion, we answer point No.(i) in the affirmative. 21. Point No.(ii): Though, defendant Nos.3(a) and 3(b) filed a written statement contending that CTS No.6155-6159 are the properties purchased by defendant - 24 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 No.1 under a registered sale deed, in support of their defense, defendant Nos.3(a) and 3(b), did not produce the registered sale deeds, to show that CTS Nos.6155-6159 were purchased by defendant No.1. Further, defendant No.1 during the course of his cross-examination has admitted that CTS Nos.6155-6159 were purchased by Gundu Jadhav in the name of defendant No.1. The said admission corroborates with the written statement filed by defendant Nos.1 and 2, as observed above. Further, DW.1 admits that, Gundu Jadhav had purchased CTS No.153 under a registered sale deed. Further, the defendants have not produced any record to show that the family had possessed sufficient nucleus for purchasing CTS Nos.6155- 6159 and CTS No.153. In the absence of material evidence on record, the defendants have failed to prove that, defendant No.1 had acquired the properties by his own income. The defendants have not produced any records to show, what was the source of income of the family and how much income was saved by the family. All - 25 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 these materials are absent in the written statement filed by defendant Nos.1 and 2. 22. In a suit for partition and separate possession, initially, the burden is always on the plaintiff to establish the nature of the suit schedule properties. The defendants have admitted that Gundu Jadhav had purchased the properties in the name of defendant No.1. 23. In view of the admission that, the suit properties were purchased by Gundu Jadhav, the defendants have failed to establish that the properties were purchased by defendant No.1 out of his own earnings. 24. The defendants have sought a declaration that the registered gift deeds executed by defendant No.1 in favour of Arun Dattratraya and defendant No.6 as valid. As observed above, admittedly, the properties were purchased by Gundu Jadhav, and after his demise, Khata was transferred to the name of defendant No.1, as he was - 26 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 the sole male legal heir of deceased Gundu Jadhav and Parvathibai. The trial Court has recorded a finding that the co-parcener is not entitled to alienate the undivided interest in the co-parcenery property by way of the gift. The said finding recorded by the trial Court is contrary to the law laid down by the Hon’ble Apex Court in the case of Thamma Venkata Subbamma (D) by LR v. Thamma Rattamma & Ors., reported in (1987) 3 SCC 294 wherein, the Hon’ble Apex Court has held as follows: “In our view, the gift made by Rami Reddy to Veera Reddy should be construed as renunciation of his undivided interest in the coparcenary in favour of Veera Reddy and his sons who were the remaining coparceners. The gift was, therefore, valid construing the same as renunciation or relinquishment by Rami Reddy of his interest in the coparcenary and accordingly, the consent of other coparceners was immaterial.” 25. Though, the plaintiffs have sought the relief of declaration that the registered gift deeds are not binding on the share of the plaintiffs, the trial Court would have upheld the registered gift deeds to the extent of the share - 27 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 of defendant No.1. The trial Court has committed an error in holding that the registered gift deeds are void. 26. In view of the above discussion, we answer Point No.(ii) partly in the affirmative and partly in the negative. 27. Point No.(iii): The trial Court committed an error in not determining the shares of the parties and also without taking into consideration the registered gift deeds executed by defendant No.1 in favour of the husband of defendant No.3(a) and father of defendant No.3(b) and defendant No.6. The trial Court has committed an error in not considering the share. The donees are entitled to the share of defendant No.1. 28. In view of the above discussion, we proceed to answer point No.(iii) partly in the affirmative and partly in the negative. 29. Point No.(iv): In view of the above discussion, we proceed to pass the following: - 28 - NC: 2025:KHC-D:2132-DB RFA No. 100293 of 2019 ORDER The appeal is allowed in part. The judgment and decree dated 24.04.2019 passed by the trial Court is modified. Plaintiff Nos.1 to 3 are entitled to 6/35th share each. Defendant Nos.4 and 5 together are entitled to 6/35th share. Defendant Nos.3(a) and 3(b) are entitled to 17/210th share each and defendant No.6 is entitled to 32/210th share in the suit schedule properties. The gift deeds executed by defendant No.1 in favour of Arun i.e., defendant No.3 and Akshay i.e., defendant No.6 are not binding on the share of the plaintiffs. The Office is directed to draw the decree accordingly. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE kmv