- 1 - NC: 2025:KHC-D:5823-DB RFA No. 100318 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 1ST DAY OF APRIL, 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO. 100318 OF 2023 (PAR/POS) BETWEEN: BASANAGOUDA S/O. TAMMANAGOUDA RAYANAGOUDAR AGE: 43 YEARS, OCC: AGRICULTURE, R/O: HARALAKATTI, TAL: SAUNDATTI, DIST: BELAGAVI, PIN 591126. …APPELLANT (BY SRI. S.C. HIREMATH, ADVOCATE) AND: 1. TAMMANAGOUDA, S/O. YALLAPPAGOUDA RAYANAGOUDAR AGE: 73 YEARS, OCC: AGRICULTURE, R/O: HARALAKATTI, TAL: SAUNDATTI, DIST: BELAGAVI, PIN-591126. 2. SMT. SUSHILA, W/O. TAMMANAGOUDA RAYANAGOUDAR AGE: 63 YEARS, OCC: HOUSEHOLD WORK, R/O: HARALAKATTI, TAL: SAUNDATTI, DIST: BELAGAVI, PIN-591126. 3. SMT. MALA W/O. REVANASIDDA CHOUDYAL AGE: MAJOR, OCC: HOUSEHOLD WORK, MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA Date: 2025.04.17 15:08:00 +0530 - 2 - NC: 2025:KHC-D:5823-DB RFA No. 100318 of 2023 R/O: PLOT NO 101, NOW NO.106/3, RAMANARAYAN CHANDAKAVIHAR, MAJAREWADI SHOLAPUR-413004, TALUKA AND DISTRICT SHOLAPUR, MAHARASHTRA STATE. …RESPONDENTS (BY SRI. IRANAGOUDA K. KABBUR, ADV. FOR RESP.NO.1; SRI. KALMESH G. CHIKKAMBI, ADV. FOR RESP.NO.2; SRI. M.B. MADANALLI, ADV. FOR RESP.NO.3) THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 17.12.2022 PASSED IN O.S.NO.78/2019 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, SAUNDATTI, AND DISMISS THE SUIT OF THE PLAINTIFF/RESPONDENT NO.1 AND ALSO THE COUNTER CLAIM OF THE RESPONDENT NO.2, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) The captioned appeal is by the 3rd defendant, who has questioned the Preliminary Decree drawn in O.S.No.78/2019 granting 1/3rd share to the plaintiff in the suit schedule properties excluding the properties covered under the - 3 - NC: 2025:KHC-D:5823-DB RFA No. 100318 of 2023 counterclaim made by defendant No.1. The said Judgment and Decree is under challenge. 2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. 3. Before we proceed to examine the rival contentions, we deem it appropriate to take cognizance of the family tree, which is as under: Yallappagouda Rayanagouda Rayanagoudar (expired on 18.11.2006) Avvakka (wife, expired) Rayanagouda Tammanagouda(Pltf.) Ishwaragouda Neelavva Sushila (wife, Df.1) Mallanagouda Malla (Def.2) Basanagouda (Df.3) 4. The facts leading to the case are that; The suit schedule properties are admittedly held by Tammanagouda pursuant to partition between himself and his brothers. This factual matrix is admitted by both parties. Plaintiff, who is the father, filed the suit against his wife/defendant No.1, daughter/defendant No.2 and son/defendant No.3-Basanagouda. Plaintiff in the plaint it is - 4 - NC: 2025:KHC-D:5823-DB RFA No. 100318 of 2023 specifically pleaded that during the lifetime of propositus- Yallappagouda, there was partition in the family and in terms of family partition and the present suit schedule properties came to be allotted to for plaintiff’s share. Plaintiff has specifically alleged in the plaint that defendant No.3 taking undue advance of RTCs pertaining to schedule-B properties, wherein defendant No.3’s name is found in the RTC, was tried to alienate the suit schedule properties. Plaintiff thereafter alleged that the 3rd defendant is not the absolute owner of the schedule-B properties and there is no partition by metes and bounds in schedule-A and B properties. Plaintiff also alleged that defendant No.3 is not accounting the income generated from schedule-B properties and is pending the income generated in the above said schedule-B properties without any family necessities. The plaintiff having come to know about the intention of defendant No.3, who was intending to alienate the suit schedule properties, plaintiff, who is the father approached defendant No.3 by requesting not to sell the ancestral properties in absence of legal necessities. The plaintiff alleges that defendant No.3 is - 5 - NC: 2025:KHC-D:5823-DB RFA No. 100318 of 2023 addicted to voices and despite advised by the village elders not to sell the schedule-B properties and effect partition, defendant No.3 was not in the move to give need to request made by the plaintiff and therefore the present suit. 5. The 1st defendant, wife on receipt of summons contested the suit proceedings and filed a counterclaim in respect of two items namely Item No.4 in schedule-A and Item No.2 in schedule-B properties. Defendant No.3 failed to contest the suit by filing written statement. Vide order dated 06.11.2019, the written statement of defendant No.3 was taken as ‘nil’. The 3rd defendant also failed to cross-examine the plaintiff as well as defendant No.1. The trial Court having assessed the pleadings, oral and documentary evidence let in by both parties, partly decreed the suit filed by the plaintiff granting 1/3rd share to the plaintiff-Tammanagouda while the counterclaim filed by defendant No.1 was allowed thereby declared that the 1st defendant is the absolute owner of R.S.No.427 (Item No.4 of schedule-A) and R.S.No.426 (Item No.2 of schedule-B). The 3rd defendant has only challenged the preliminary decree drawn in O.S.No.78/2019, however, - 6 - NC: 2025:KHC-D:5823-DB RFA No. 100318 of 2023 there is no challenge to counterclaim and therefore properties covered under the counterclaim are not the subject matter of this appeal. 6. Heard the learned counsel appearing for appellant/defendant No.3 and learned counsel appearing for the 1st respondent/plaintiff. We have carefully examined the order sheet maintained by the trial Court. We have given our anxious consideration to the grounds urged in the memorandum of appeal. Records clearly reveal that defendant No.3 has failed to contest the suit by filing written statement. In the memorandum of appeal, a feeble attempt is made by the 3rd defendant, thereby setting up a plea of prior partition. 7. The following points would arise for our consideration: (i) Whether the Judgment and Decree rendered by the trial Court warrants interference at the hands of this Court and therefore matter requires to be remitted back to the trial Court to enable the 3rd defendant to file written statement and contest the suit? - 7 - NC: 2025:KHC-D:5823-DB RFA No. 100318 of 2023 (ii) Whether the quantification of share determined by the trial Court is proper and warrants interference at the hands of this Court? Finding on point No.(i) 8. Defendant No.3 is the son of plaintiff, now by filing an appeal has made an attempt to set up a plea of prior partition effected between himself and his father. Defendant No.3 claims that pursuant to family partition, the 3rd defendant was allotted schedule-B properties totally measuring 12 acre, 31 gunta. 9. In the present appeal, Defendant No.3 places significant reliance on the mutation entries reflected in the Record of Rights (RTC), which are marked as Exhibits P-5, P- 6, and P-7. According to him, these entries demonstrate that there was an oral partition between the father and sons, and such a partition is clearly recorded in the aforementioned RTC documents. Defendant No.3 contends that, in light of the documents relied upon even by the plaintiff, the entries - 8 - NC: 2025:KHC-D:5823-DB RFA No. 100318 of 2023 in the RTC cannot be disregarded. He further asserts that the properties described in Schedule-B were allotted to him during the said family partition. On this basis, he prays for an opportunity to substantiate his claim and requests this Court to remit the matter back to the Trial Court for fresh consideration and evidence on the issue of partition and allotment of shares. 10. This Court, upon examining the family tree and the pleadings on record, notes that the plaintiff, Tammanagouda, and Defendant No.1 (his wife) have two children, namely Defendant No.2 (daughter) and Defendant No.3 (son). It is an admitted fact that the parties are governed by the Bombay School of Hindu Law. Consequently, Defendant No.1 (wife) is independently entitled to a share in the joint family properties during the lifetime of her husband, Tammanagouda. The alleged oral partition, which Defendant No.3 seeks to rely upon, is not supported by any registered document. The only reference to such a partition is found in the mutation entries in the RTC. Notably, the said entries indicate that shares were allotted not only to Defendant No.3 - 9 - NC: 2025:KHC-D:5823-DB RFA No. 100318 of 2023 but also to Defendant No.1 (wife) and Defendant No.2 (daughter). 11. However, it is pertinent to observe that there is no material on record to suggest that Defendant No.1 and Defendant No.2 were consenting parties to the alleged oral partition. In the absence of their participation or consent, mere mutation entries in revenue records cannot be construed as conclusive proof of a valid partition under law. Although this appeal was filed in the year 2023, Defendant No.3 has not produced any documentary or cogent evidence to demonstrate the details, terms, or even the date of such partition. The grounds urged in the memorandum of appeal also fail to sufficiently plead the particulars of the alleged partition. Hence, the reliance placed on RTC entries alone, in the absence of corroborative evidence, cannot establish a valid and binding partition, especially against the interests of Defendants No.1 and 2. 12. Be that as it may, even assuming that an oral partition took place, the records clearly indicate that neither - 10 - NC: 2025:KHC-D:5823-DB RFA No. 100318 of 2023 Defendant No.1 (wife) nor Defendant No.2 (daughter) were allotted any specific share under such a partition as now alleged by Defendant No.3. In the absence of any convincing evidence to show their participation or consent, this Court is of the considered view that the alleged partition, if any, cannot bind Defendants No.1 and 2. Moreover, it is observed that Defendant No.2 has filed a written statement asserting her right and seeking a share in the suit schedule properties. Despite this, the Trial Court failed to address her claim, and no reasoning was provided in the judgment regarding her entitlement or the quantum of her share. This oversight on the part of the Trial Court is a serious procedural lapse and calls for rectification. 13. In view of the foregoing discussion, this Court finds merit in the plaintiff's contention that the suit schedule properties, except those covered under the counterclaim, are joint family ancestral properties. These properties were allotted to the plaintiff's share during a family partition that took place in the lifetime of the propositus, Yallappagouda S/o.Rayanagouda Rayanagoudar. The plaintiff has - 11 - NC: 2025:KHC-D:5823-DB RFA No. 100318 of 2023 successfully demonstrated his entitlement and the character of the properties as ancestral. Therefore, the Trial Court rightly decreed the suit and passed a preliminary decree in the plaintiff’s favour. Accordingly, point No.(i) is answered in the negative, as the claim of a prior binding partition set up by Defendant No.3 cannot be accepted. 14. Turning to point No.(ii), this Court again refers to the family tree and reiterates that the plaintiff and his wife (Defendant No.1) have two children, namely Defendant No.2 (daughter) and Defendant No.3 (son). As stated earlier, the parties are governed by the Bombay School of Hindu Law. Under this school of law, when male coparceners initiate partition by metes and bounds, the wife becomes entitled to an equal share in the partitioned property. In the present case, since the plaintiff himself has filed a suit seeking partition, this act triggers the legal entitlement of Defendant No.1 to an equal share. However, the Trial Court, without assigning any reasons, failed to acknowledge or quantify the share of Defendant No.1 and erroneously excluded her from the partition. - 12 - NC: 2025:KHC-D:5823-DB RFA No. 100318 of 2023 15. The Trial Court proceeded to allocate a 1/3rd share to the plaintiff by ignoring the legitimate entitlement of Defendant No.1. Such quantification is not only erroneous but also contrary to the settled principles under the Bombay School of Hindu Law. Additionally, Defendant No.1, in her counterclaim, has asserted absolute title over two items in the suit schedule and has specifically claimed her rightful share in the joint family properties by paying the requisite Court fee. Therefore, it cannot be said that she waived her claim. This Court finds that the Trial Court’s approach to share quantification is perverse and legally unsustainable. Consequently, this Court holds that the plaintiff and Defendants No.1 to 3 are each entitled to an equal 1/4th share in the joint family properties. To this limited extent, Defendant No.3 is entitled to succeed. Accordingly, point No.(ii) is answered in the affirmative. 16. For the foregoing reasons, we proceed to pass the following: ORDER (i) Appeal is allowed in part. - 13 - NC: 2025:KHC-D:5823-DB RFA No. 100318 of 2023 (ii) The preliminary decree drawn in O.S.No.78/2019 by the learned Principal Senior Civil Judge, Saundatti is hereby modified. (iii) Plaintiff is entitled to 1/4h share, accordingly, defendants No.1 to 3 are also entitled to 1/4th share each in the suit schedule properties. (iv) Draw preliminary decree accordingly. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE CKK Ct-cmu LIST NO.: 1 SL NO.: 22