- 1 - NC: 2025:KHC-D:5832 RFA No. 4122 of 2013 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 1ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR REGULAR FIRST APPEAL NO. 4122 OF 2013 (PAR) BETWEEN: 1. ENKA SUKRU GOUDA AGE: 40 YEARS, R/O. MADANAGERI PAIKI MOOLEKERI, TALUKA: KUMTA DISTRICT: UTTARA KANNADA-581 301. …APPELLANT (BY SRI. S.G. NAIK, ADVOCATE FOR M/S. J S SHETTY ASSOCIATES) AND: 1. TULUSU SUKRU GOUDA AGE: 44 YEARS R/O. MADANAGERI PAIKI MOOLEKERI, TALUKA: KUMTA DISTRICT: UTTARA KANNADA-581 301. 2. SHIVU SUKRU GOUDA AGE: 42 YEARS R/O. MADANAGERI PAIKI MOOLEKERI, TALUKA: KUMTA DISTRICT: UTTARA KANNADA-581 301. 3. SMT. NAGAMMA W/O. RAMACHANDRA GOUDA AGE: 48 YEARS, R/O. HEGRE, TALUKA: ANKOLA DISTRICT: UTTARA KANNADA-581 301. …RESPONDENTS Digitally signed by R HEMALATHA Location: High Court of Karnataka - 2 - NC: 2025:KHC-D:5832 RFA No. 4122 of 2013 (BY SRI. S.G. KADADAKATTI, ADVOCATE AND SRI. GANAPATI S. SHASTRI, ADVOCATE FOR R1; R2 AND R3 ARE SERVED) THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD: 28.03.2013, PASSED BY THE SENIOR CIVIL JUDGE, KUMTA, IN OS NO.17/2012, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FURTHER DICTATION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR ORAL ORDER This Regular First Appeal is filed by the Appellant challenging the judgment and decree dated 28.03.2013 passed in O.S. No. 17/2012 by the Learned Senior Civil Judge Kumata. 1.1 For convenience, the parties are referred to according to their positions before the Trial Court: the Appellant was the plaintiff, and the Respondents were the defendants. 2. Brief facts giving rise to this appeal are as follows: 2.1 The Plaintiff filed a suit against the Defendant seeking partition and separate possession of the suit schedule properties. In the Plaintiff’s case, one Sukru Tulsugowda (the propositus) had a wife named Yanki and a daughter named Devi. Sukru Tulsugowda and Devi had five children, namely the Plaintiff, Defendant Nos. 1 to 3, and Smt. Bhagirathi. - 3 - NC: 2025:KHC-D:5832 RFA No. 4122 of 2013 2.2 It is contended that the suit schedule properties originally belonged to Sukru Shivu Gowda and that after his death, the Schedule A and B properties were mutated in the names of his widow, Yanki, and his daughter, Devi. It is further contended that a registered partition deed dated 08.03.2002 was executed by Yanki and the Plaintiff, whereby she settled her half share in the Schedule A property and retained her half share in the Schedule B property. It is also contended that the Plaintiff’s mother died on 10.08.1997, and her half share was inherited by her husband and children. Yanki died on 29.08.2003, and the father of the Plaintiff and Defendant died on 25.05.2003. It is therefore contended that the suit schedule properties are the ancestral joint family properties of the parties and that no partition has been effected between the Plaintiff and Defendant. The Plaintiff demanded partition and separate possession, but the Defendant refused to effect the partition, thereby giving rise to a cause of action for the Plaintiff to file a suit for partition and separate possession. 2.3 Despite service of summons, Defendant No. 2 remained unrepresented and was tried ex parte. Defendants Nos. 1 and 3 filed written statements admitting the relationship between the parties but denied that any registered partition had been effected in favor of the Plaintiff. It is contended that Yanki alone did not have the right to effect partition. It is further contended that since a suit for partition is pending before another Court, the present suit is not maintainable, and the Plaintiff prayed to dismiss the suit against Defendant No. 1. - 4 - NC: 2025:KHC-D:5832 RFA No. 4122 of 2013 Defendant No. 3 filed a written statement admitting the averments in the plaint and prayed for a decree in his favor. 3. Relying on the pleadings of both the Plaintiff and the Defendant, the Trial Court framed the following issues: • (i) Whether the Plaintiff has proved that Smt. Yanki, wife of Sukru Gouda, transferred her half-right in the Schedule A property to him; • (ii) Whether the Plaintiff has proved that he is entitled to a half plus an eighth share in the Schedule A property; • (iii) Whether the Plaintiff is entitled to the reliefs prayed for in the petition; • (iv) What order or decree should be passed. 4. To substantiate her case, the Plaintiff was examined as PW-1, another witness was examined as PW-2, and 26 documents (Ex.P-1 to Ex.P-26) were marked. In rebuttal, Defendant No. 1 was examined as D.W-1, and no documents were produced on his behalf. 5. Taking into consideration the materials on record and hearing both parties, the Trial Court partly decreed the Plaintiff’s suit vide judgment dated 28.03.2013, declaring that the Plaintiff and Defendant No. 3 are entitled to a one-quarter share in the properties of Schedules A, B, and C. The Plaintiff, - 5 - NC: 2025:KHC-D:5832 RFA No. 4122 of 2013 aggrieved by this judgment and decree, has preferred this regular first appeal. 6. Shri J.S. Shetty, Learned Counsel for the Appellant, submits that the Trial Court erred in its appreciation of Ex.P-2. He contends that the Trial Court committed an error by holding that Ex.P-2 does not transfer the right of Yanki to the Plaintiff, and therefore, erred in passing the impugned judgment. Accordingly, he prays that the appeal be allowed. 7. Per contra, Shri S.G. Kadadakatti, and Shri Ganapati S. Shastri Learned Counsel for the respondents supporting the impugned judgment, submits that the Trial Court was justified in passing the judgment and rightly allotted the respective shares; he, therefore, prays that the appeal be dismissed. In support, he relies on: • (i) V.N. Sarin v. Ajit Kumar Poplai AIR 1966 SC 432; and • (ii) Aralappa v. Sri Jaganatha, along with the decision reported in ha and others 2007 (1) KCCR 235. 8. I have heard the submissions of the Learned Counsel for the parties. 9. After perusing the materials on record and considering the arguments, the following issues arise for my consideration: - 6 - NC: 2025:KHC-D:5832 RFA No. 4122 of 2013 • (i) Whether the Plaintiff has proved that Yanki transferred her half share in the Schedule A property; • (ii) Whether the Trial Court was justified in holding that Ex.P-2 does not confer such rights; • (iii) Whether the impugned judgment passed by the Trial Court is arbitrary and perverse; • (iv) What order or decree should be passed. 10. As Points (i) and (ii) are interlinked, they are taken together for a common discussion to avoid the repetition of facts. 10.1 The Plaintiff, examined as PW-1, reiterated the averments of the plaint in her examination-in-chief. She deposed that she was responsible for looking after her grandmother, Yanki, and was managing Yanki’s share in the properties of Schedules A and B. She further deposed that Yanki had transferred her half share in the Schedule A property by virtue of Ex.P-2. During cross-examination, it was suggested that PW-2 had colluded with the Plaintiff in creating Ex.P-2, which PW-1 denied. She clarified that the suit schedule properties were in the name of Yanki at the time of the partition as evidenced by Ex.P-2. 10.2 To prove his case, the Plaintiff examined a witness as PW-2. PW-2 deposed that Yanki had transferred her half share in the Schedule A property in favor of the Plaintiff by Ex.P-2, and he identified both his signature and the signature - 7 - NC: 2025:KHC-D:5832 RFA No. 4122 of 2013 of Yanki on Ex.P-2. During cross-examination, when it was suggested that PW-2 had colluded with the Plaintiff in creating Ex.P-2, PW-2 denied the suggestion. 10.3 To establish his entitlement to a half share in the Schedule A property, the Plaintiff produced the following documents: Ex.P-1 (a certified copy of mutation copy No. 1808), Ex.P-2 (a copy of the registered partition deed dated 08.03.2002), Ex.P-2 to Ex.P-2e (signatures), Ex.P-3 to Ex.P-5 (RTC extracts regarding the suit schedule properties), Ex.P-6 to Ex.P-11 (copies of the mutation extract), Ex.P-12 to Ex.P-14 (death certificates of Sukru, Yanki, and Devi, respectively), and Ex.P-15 to Ex.P-26 (RTC extracts regarding the suit schedule properties). The Defendants did not produce any documentary evidence. 10.4 It is pertinent to refer to Section 15 of the Hindu Succession Act, 1955, which provides as follows: “15. General rules of succession in the case of female Hindus.— (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16, namely: (i) firstly, upon her sons and daughters (including the children of any pre-deceased son or daughter) and her husband; (ii) secondly, upon the heirs of her husband; (iii) thirdly, upon her mother and father; (iv) fourthly, upon the heirs of her father; and - 8 - NC: 2025:KHC-D:5832 RFA No. 4122 of 2013 (v) lastly, upon the heirs of her mother.” 11. A perusal of the record shows that through a registered partition-cum-settlement deed dated 08.03.2002, Smt. Yanki (the grandmother of the parties) executed a partition in order to resolve future misunderstandings. In the deed, she retained her half share in the Schedule B property and transferred her half share in the Schedule A property in favor of the present Appellant. However, the other co-sharers (namely, the father of the parties, the Defendants) were not made parties to the settlement deed for the joint family properties. 12. Furthermore, after the death of the mother of the Plaintiff and Defendant on 10.08.1997, her half share in the properties of Schedules A and B devolved upon her husband and children. Each sharer would receive a one-twelfth share; however, since one daughter, Bhagirathi, died in 2009, her share devolved upon the father of the parties, Sukru, resulting in a combined share of 1/12 + 1/12, i.e., a one-sixth share. After Sukru’s death in 2003, his one-sixth share devolved upon four parties (the Plaintiff and Defendant Nos. 1 to 3), each receiving 1/12 + 1/4 = 1/8 share. 13. Accordingly, as Ex.P-2 does not transfer the rights of Smt. Yanki in the Schedule A property, her half share devolves upon the Plaintiff and Defendant Nos. 1 to 3 in accordance with Section 15(1)(a) of the Hindu Succession Act, as they were the children of a pre-deceased daughter. Each sharer will receive 1/8 share of Smt. Yanki’s half share. - 9 - NC: 2025:KHC-D:5832 RFA No. 4122 of 2013 Therefore, the Plaintiff and Defendant are entitled for 1/8 share plus an additional 1/8 share in the Schedule A property, and, being ancestral, the properties in Schedules B and C entitle each party to a one-fourth share. Hence, the Trial Court rightly allotted the shares in the properties of Schedules A to C, as Ex.P-2 is not legally binding on the other co-sharers. 14. The Respondents have referred to the case of V.N. Sarin v. Ajit Kumar Poplai AIR 1966 SC 432, in which the Hon’ble Supreme Court addressed whether the partition of coparcenary property among the coparceners can be deemed “an acquisition by transfer” within the meaning of Section 14(6) of the Delhi Rent Control Act, 1958, which provides that a purchaser acquires title to any premises by transfer. In that case, the suit property belonged to Respondent No. 1, and the Appellant had transferred the premises to Respondent No. 2 before partition, leading Respondent No. 1 to apply for the eviction of the Appellant on the grounds that the suit property belonged to him. 14.1 The Hon’ble Supreme Court, dismissing the appeal, held that partition means that whereas initially all coparceners jointly hold title to the entire family property, partition transforms that joint title into separate titles for the individual coparceners with respect to the items of property allotted to them. If this is the true nature of partition, it cannot be held that partition of an undivided Hindu family property necessarily constitutes a transfer of the property to the individual coparceners. - 10 - NC: 2025:KHC-D:5832 RFA No. 4122 of 2013 15. In the case of Aralappa v. Sri Jaganatha and others, 2007 (1) KCCR 235, this Court referred to the case of Mt. Girija Bai v. Sadashiv Dhundiraj and Ors (AIR 1916, Privy Council), which held that partition does not create or give title; it only enables the sharers to obtain what is individually theirs in a definite and specific form for the purpose of disposition, independent of the wishes of their co-sharers. A deed of partition merely recognizes the existing rights of each individual member, and partition of a joint family property cannot be treated as “a transfer” within the meaning of Section 5 of the Transfer of Property Act, 1882. 16. In the present case, Smt. Yanki executed a partition deed in favor of the Appellant without obtaining the consent of the other co-sharers, as the property is ancestral in nature. Such an execution of a partition-cum-settlement agreement has no legal effect because it concerns the interests of the other co-sharers in the suit schedule property, and Defendant Nos. 1 to 3 had subsisting rights or interests in the property after the death of their grandmother with respect to her half share in the Schedule A property. 17. In the case of Narendra Kante v. Anuradha Kante and others (2010) 1 SCC (Civ) 300, wherein the Appellant sought a declaration and permanent injunction against other co-sharers on the ground that a family settlement for the partition of joint family property executed in exclusion of co-sharers was not binding on them, the Hon’ble Supreme Court held: - 11 - NC: 2025:KHC-D:5832 RFA No. 4122 of 2013 “25. As far as the first point is concerned, since it is a question of fact that has, on a prima facie basis, been accepted by the courts below, we are not inclined to interfere with the prima facie view that an oral partition had been effected, which was subsequently reduced to writing as a memorandum rather than as an actual deed of partition. These observations are made solely for the disposal of the special leave petition and not for disposing of the suit itself. 26. As far as the second question is concerned, a deed of family settlement seeking to partition the joint family properties cannot be relied upon unless it is signed by all the co-sharers. In the instant case, admittedly, Respondent 8, Sau. Pratibha, was not a signatory to the deed of settlement dated 8-2-1967, although she is the daughter of Bapu Saheb Kante by his first wife.” 18. Accordingly, in the present case, the partition-cum- settlement deed dated 08.03.2002 executed by Smt. Yanki, wherein she retained her half share in the Schedule B property and transferred her half share in the Schedule A property in favor of the Appellant, is valid as to the Appellant. 19. Accordingly, I answer Point No. 1 in the negative and Point No. 2 in the affirmative. Point No. 3: 20. The Trial Court was justified in holding that the Plaintiff, the Defendant, and their father also have undivided rights in the properties in Schedules A and B. Therefore, without including them as parties to the partition deed, the family settlement has no legal or binding effect on the other co- - 12 - NC: 2025:KHC-D:5832 RFA No. 4122 of 2013 sharers. I do not find any error in the impugned judgment; accordingly, I answer Point No. 3 in the negative. Point No. 4: 21. As I have already addressed Points Nos. 1 to 3— holding that the partition deed should be signed by all co- sharers and that the Trial Court was justified in passing the impugned judgment—I now proceed to pass the following order. ORDER: i) The Appeal is dismissed. ii) The impugned Judgement dated 28.03.2013 in O.S.No.17/2012, passed by the Trial Court is hereby confirmed. iii) No order as to the costs. In view of the dismissal of the Appeal, pending I.A’s if any does not survive for consideration and accordingly, disposed of. Sd/- (HEMANT CHANDANGOUDAR) JUDGE bkm List No.: 19 Sl No.: 2