- 1 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH 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.100461 OF 2018 (PAR/POS) C/W RFA CROSS OBJ NO. 100004 OF 2022 IN RFA NO. 100461 OF 2018 BETWEEN: 1. SHRI. LAXMAN KALLAPPA MAVINGIDAD, AGE: 30 YEARS, OCC: AGRICULTURE, R/O: KALLIGUDDI VILLAGE-591227, TQ: GOKAK, DIST: BELAGAVI. 2. SHRI RAMESH KALLAPPA MAVINGIDAD AGE: 24 YEARS, OCC: AGRICULTURE, R/O: KALLIGUDDI VILLAGE-591227, TQ: GOKAK, DIST: BELAGAVI. …APPELLANTS (BY SRI. G.B. NAIK & SMT. P.G. NAIK, ADVS) AND: 1. SMT. VENKAWWA BHIMAPPA SHINTRI AGE: 62 YEARS, OCC: AGRICULTURE, R/O: KALLIGUDDI VILLAGE-591227, TQ: GOKAK, DIST: BELAGAVI. 2. SMT. RUKMAWWA RAMAPPA DADDI AGE: 57 YEARS, OCC: AGRICULTURE, R/O: KALLIGUDDI VILLAGE-591227, TQ: GOKAK, DIST: BELAGAVI. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.03.01 11:15:52 +0530 - 2 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 3. SMT. BHAGAWWA MAYAPPA MAHALINGAPPA, AGE: 52 YEARS, OCC: AGRICULTURE, R/O: BASALIGUNDI VILLAGE-591218, TQ: GOKAK, DIST: BELAGAVI. …RESPONDENTS (BY SRI. D.B KARIGAR, ADV FOR R1 & R3, V/O DATED 21.10.2020, R2 IS HELD SUFFICIENT) THIS RFA IS FILED UNDER SECTION 96 R/W ORDER XLI RULE 1 AND 2 OF THE CPC., 1908, AGAINST THE JUDGMENT AND DECREE DATED 01.08.2018 PASSED IN O.S.NO.238/2016 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, GOKAK, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. IN RFA CROSS OBJ NO. 100004 OF 2022 BETWEEN: 1. SMT. VENKAWWA W/O BHIMAPPA SHINTRI AGE: 65 YEARS, OCC: AGRICULTURE, R/O: KALLIGUDDI VILLAGE, TALUKA GOKAK, DIST: BELAGAVI-591227. 2. SMT. BHAGAWWA W/O MAYAPPA MAHALINGAPPA, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: BASALIGUNDI VILLAGE, TALUKA GOKAK, DIST-BELAGAVI-591218. …CROSS OBJECTORS (BY SRI. D.B KARIGAR, ADV) AND: 1. SMT. RUKMAWWA W/O RAMAPPA DADDI AGE: 60 YEARS, OCC: AGRICULTURE, - 3 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 R/O: KALLIGUDDI VILLAGE, TALUKA GOKAK, DIST: BELAGAVI-591227 2. SHRI. LAXMAN S/O KALLAPPA MAVINGIDAD AGE: 32 YEARS, OCC: AGRICULTURE, R/O: KALLIGUDDI VILLAGE, TALUKA GOKAK, DIST: BELAGAVI-591227 3. SHRI. RAMESH KALLAPPA MAVINGIDAD AGE: 26 YEARS, OCC: AGRICULTURE, R/O: KALLIGUDDI VILLAGE, TALUKA GOKAK, DIST: BELAGAVI-591227 …RESPONDENTS (BY SRI. G.B. NAIK AND SMT. P.G. NAIK, ADVS FOR R2 & R3) THIS RFA CROB. IN RFA NO.100461/2018 IS FILED UNDER ORDER 41 RULE 22 OF CPC., READ WITH SECTION 151 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 01.08.2018 PASSED IN O.S.NO.238/2016 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, GOKAK, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL & CROSS OBJECTION, COMING ON FOR FINAL HEARING AND ORDERS RESPECTIVELY, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 4 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellant, challenging the judgment and preliminary decree dated 01.08.2018 passed in O.S.No.238/2016 by the learned II Additional Senior Civil Judge and JMFC, Gokak. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellants were defendants No.2 and 3, respondent No.1 was the plaintiff and the other respondents were the defendants. 3. Brief facts, leading rise to the filing of this first appeal are as follows: The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that one Venkappa was the original propositus. He had wife a by name Lakkawwa. Venkappa and Lakkawwa had four children i.e., plaintiff, defendant No.1, defendant No.4 and one Kallappa. Defendants No.2 and 3 are the - 5 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 sons of Kallappa. The suit schedule properties were originally owned by Laxman Mayappa Mavingidad who was the grandfather of the plaintiff. The said Laxman died in 1970. Thereafter, the names of his sons Venkappa and Yallappa were entered in the records as per M.E.No.857. There was a partition in June 1986 between Venkappa and Yallappa and the suit properties fell to the share of Venkappa, and accordingly, properties were transferred in the name of Venkappa as per M.E.No.1435. In November 1986, a Vardi was submitted to the Tahasildar alleging that, there was a partition between Venkappa, Lakkawwa and Kallappa and accordingly properties were transferred in the name of Venkappa, Lakkawwa and Kallappa as per M.E. No.1468. As per the said partition, Sy.No.78/2A measuring 3 acres 3 guntas fell to the share of Venkappa. Sy.No.78/2B measuring 5 acres 36 guntas fell to the share of Lakkawwa and Sy.No.78/3A measuring 6 acres 7 guntas fallen to the share of Kallappa. - 6 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 4. Lakkawwa died on 31.03.2007 leaving behind, the plaintiff and defendants as her class-1 heirs. Defendants No.2 and 3 got their names entered in the RTC of the land bearing R.S.No.78/2B based on an unregistered partition deed and relinquishing her right in their favour. There is no partition regarding the suit schedule properties. It is contended that the plaintiff and defendants are the members of a Hindu joint family and no partition is effected between the plaintiff and defendants. The plaintiff demanded partition and separate possession and the defendants refused to effect partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 5. The trial Court issued summons to the defendant No.1. Despite service of summons, defendant No.1 remained unrepresented and he was placed ex-parte. 6. Defendant No.2 filed a written statement which was adopted by defendant No.3 by filing a memo. In the - 7 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 written statement, they admitted regarding the description of the suit properties, death of Lakkawwa, relinquishment, etc., and admitted the genealogy in part and rest of the averments made, are denied. It is contended that, there was a prior partition in 1986 in which, the plaintiff, defendants No.1 and 4 relinquished their share in favour of Venkappa by receiving 2 tolas gold and sarees, since their marriage expenses were borne. The said fact was within the knowledge of the plaintiff, but she has kept quiet for more than 30 years. The suit is barred by limitation. M.E.1468 was effected based on the said partition. The suit filed by the plaintiff is not maintainable, unless the plaintiff seeks for reopening of the partition. It is contended that the plaintiff, defendants No.1 and 4 relinquished their rights regarding R.S. No.78/2A and they have signed on U-Notice. Hence, prays to dismiss the suit against defendants No.2 and 3. Defendant No.4 filed a written statement admitting the relationship of the parties and nature of the suit properties. It s is stated that she has 1/4th share in the - 8 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 suit properties and that, she is ready to pay Court fee on her share. Accordingly, prays to decree the suit. 7. The trial Court, based on pleadings of the parties, framed the following issues and additional issues. ISSUES 1. Whether the plaintiff proves that the suit properties are the joint family properties of herself and defendants? 2. Whether the defendants No.2 and 3 prove that there was a partition in 1986 among their father, plaintiff and defendants No.1 and 4 in respect of the suit properties? 3. Whether the defendants Nos.2 and 3 prove that the plaintiff and defendants No.1 and 4 have relinquished their rights in favour of their father in respect of the suit properties? 4. Whether the defendants No.2 and 3 prove that the suit is barred by limitation? 5. Whether the plaintiff is entitled for share in the suit properties? 6. What order or decree? Additional issues 1. Whether the defendant No.4 is entitled for 1/4th share in the suit properties? - 9 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 8. The plaintiff to prove her case, examined herself as PW-1, and marked 11 documents as Ex.P.1 to P.11. In rebuttal, defendant No.2 was examined as DW-1, defendants No.2 and 3 examined three more witnesses as DW-2 to DW-4, and marked 18 documents as Exs.D.1 to D.18. 9. The trial Court, after recording the evidence, hearing on both sides, and on the assessment of oral, and documentary evidence, answered issue Nos. 1, 5 and additional issue No.1 in the affirmative, issues No.2 to 4 in the negative and issue No.6 as per the final order. 10. The suit of the plaintiff was partly decreed with cost vide judgment dated 01.08.2018. It is declared that, the plaintiff is entitled to a 1/8 share. Defendants No.1 and 4 are entitled to 1/8 share each. Defendants No.2 to 3 together are entitled to 5/8 share in the suit schedule properties. Defendants No.2 and 3, aggrieved by the impugned judgment and preliminary decree passed in O.S.No.238/2016, filed this Regular First Appeal. - 10 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 11. Heard the learned counsel for defendants No.2 and 3 and the learned counsel for the plaintiff. 12. Learned counsel for defendants No.2 and 3 submitted that, there was a prior partition effected between the parties in 1986, in which the plaintiff, defendants No.1 and 4 have relinquished their share in favour of Venkappa, since their marriage expenses were borne by him and received 2 tolas of gold and one saree each. The said fact was within the knowledge of the plaintiff and he also submits that the plaintiff and Defendants No.1 and 4 executed a U-Form. The said U- Form establishes that there was a prior partition in 1986. The plaintiff is not entitled to a share in the suit schedule properties. He submits that the trial Court, has not properly considered the evidence on record, and committed an error in passing the impugned judgment. He also submits that the suit filed by the plaintiff is barred by limitation. Hence, on these grounds, prays to allow the appeal. - 11 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 13. Per contra, learned counsel for the plaintiff submits that, there is no partition effected between the family members of the plaintiff, and defendants and the plaintiff has not relinquished her right in the suit schedule properties. He also submits that, the unregistered partition deed and U-notice do not bear the signature of the plaintiff. He submits that an unregistered partition deed is not admissible in evidence. The trial Court has rightly discarded the defense of the defendants regarding the prior partition in 1986, and the relinquishment by the plaintiff. He submits that, the trial Court has rightly passed the impugned judgment. He submits that, the judgment and preliminary decree passed by the trial Court is just and proper, and does not call for any interference. Hence, on these grounds, he prays to dismiss the appeal. 14. Learned counsel for the plaintiff has also filed cross objection contending that the trial Court has granted 1/8th share to the plaintiff. The granting of the 1/8th share is contrary to the law laid down by the Hon’ble Apex Court - 12 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 in the case of Vineeta Sharma Vs. Rakesh Sharma reported in [AIR 2020 SC 3717]. He prays that, the plaintiff is entitled to a 1/4th in the suit schedule properties. He prays to modify the judgment and decree passed by the trial Court. 15. The points, that arise for our consideration are: 1) Whether the plaintiff proves that the suit schedule properties are the joint family properties of the plaintiff and defendants? 2) Whether defendants No.2 and 3 prove that there was a prior partition in 1986 amongst their father plaintiff, defendant No.1 and 4 in respect of the suit properties and they have relinquished their rights in favour of their father in respect of suit schedule properties? 3) Defendants No.2 and 3 prove that the judgment and decree passed by the trial Court is perverse and arbitrary? 4) Whether the plaintiff prove that the trial Court committed an error in granting a notional share in the suit schedule properties? 5) What order or decree Re. Point No.1: 16. The plaintiff to prove her case examined herself as PW-1. She deposed that, one Venkappa was the - 13 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 original propositus. He had a wife by the name Lakkawwa. Venkappa had four children, plaintiff, defendant No.1 and 4, and one Kallappa i.e., father of defendants No.2 and 3. The Venkappa had acquired the suit schedule property in a partition effected between him and his siblings and based on the partition, the name of Venkappa was entered as per M.E. No.857. Later in June 1986, there was a partition between Venkappa and Yallappa. In the said partition, suit lands fell to the share of Venkappa i.e., father of plaintiff. The properties were transferred in the name of Venkappa as per M.E. No.1435. Based on partition, a Vardi was submitted to the Tahasildar for change of khata in the name of Venkappa, his wife Lakkavva, and Kallappa regarding the suit schedule property. 17. The Tahasildar, after due enquiry passed an order as per M.E.1468. In the alleged partition, land bearing R.S.No.78/2A measuring 3 acre 3 guntas fell to - 14 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 the share of Venkappa, R.S No.78/2B measuring 5 acres 36 guntas fell to the share of Smt. Lakkawwa and R.S. No.78/3A measuring 6 acres 7 guntas fell to the share of Kallappa. The alleged partition under M.E.1468 does not have any legal sanctity in the eye of the law, and it is not binding on the share of the plaintiff. The mother of the plaintiff passed away on 31.03.2007 leaving behind her, the plaintiff as her class-1 legal heir. Defendants No.2 and 3 got entered their names in R.S.78/2B based on an unregistered partition deed. 18. To prove that, the suit schedule properties of the plaintiff and defendants are the ancestral properties, the plaintiff has produced Exs.P.1 to P.3, are the RTC extracts, Ex.P.4 to P.7, P.10, and P.11 are the Mutation Extracts, Ex.P.8 is the death certificate of Lakkawwa, Ex.P.9 is the Apasat Pala Vatni, Ex.P.4 reveals that, the grandfather died on 18.03.1973. Further, it reveals that the properties were mutated in the name of Venkappa and - 15 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 Yallappa. Ex.P.5 reveals that, suit properties mutated in the name of the plaintiff’s father as per the partition. 19. During the course of the cross-examination of PW-1, except suggesting that there was a partition in 1986, the plaintiff, and defendants No.1 and 4 relinquished their rights in favour of their father, Venkappa, the said suggestion was denied by PW-1. Nothing has been elicited from the mouth of this witness, to discard her evidence. In rebuttal, the defendant No.2 was examined as DW-1. He reiterated the written statement averments and admitted that the suit schedule properties are the ancestral joint family properties of the plaintiff and defendants and further deposed that, there was a partition in 1986 between Venkappa, plaintiff, defendant No.1 and 4. Further, the plaintiff, defendants No.1 and 4 have relinquished their rights in favour of Vekappa and they have been given two grams of gold in the marriage and one saree each. During the cross-examination, DW-1 and 2 admitted that the suit schedule properties are the - 16 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 ancestral joint family properties. The said admission itself, is crystal clear that, the suit properties are the ancestral joint family properties of the plaintiff and defendants. In view of the admission of DW-1 and DW-2, we answer point No.1 in the affirmative holding that the suit schedule properties are the ancestral joint family properties of plaintiff and defendant No.1 to 4. Re. Point No.2: 20. It is the case of defendants No.2 and 3 that there was a prior partition in 1986 and the plaintiff, defendants 1 and 4 have relinquished their right in favour of Venkappa and based on the partition, mutation was effected as per M.E.No.1435. In the said partition Sy.No.78/2A, measuring 3 acres 3 guntas was fallen to the share of Venkappa. Sy.No.78/2B measuring 5 acres 36 guntas fell to the share of Lakkawwa and RS No.78/3A measuring 6 acres 7 guntas fell to the share of Kallappa. Based on the partition, vardi was submitted to the Tahasildar. Tahasildar, after deep enquiry passed an order of mutation. - 17 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 21. To prove prior partition, defendant No.2 was examined as DW-1 and he reiterated the averments made in the examination-in-chief and defendant No.2, marked documents. Exs.D.1 to D.8 are the RTC extracts, Exs.D.9 and D.11 are Vardi submitted to Village Accountant, Ex.D.10 is the Form No.19, Ex.D.12 is the consent deed, Ex.D.13 is the U-Notice, Ex.D.14 is the heirship certificate, Exs.D.15 to D.18 are the mutation extracts. Further, the DW-1 has deposed that the plaintiff has executed a consent deed, and also U-Notice. From the perusal of U- Notice, it does not bear the signature of the plaintiff. 22. On perusal of the cross-examination of DW-1 and DW-2, have admitted that the suit schedule properties are the ancestral joint family properties of plaintiffs and defendants. Defendant No.1 was examined as DW-1. She reiterated the plaint averments in the examination-in- chief. In the course of cross-examination, she has admitted which reads as under: - 18 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 “zÁªÁ d«ÄãÀÄUÀ¼ÀÄ £ÀªÀÄä »jAiÀÄgÀ D¹ÛUÀ¼ÀÄ C zÁªÁ d«ÄãÀÄUÀ¼ÀÄ £ÀªÀÄä »jAiÀÄgÀ D¹ÛUÀ¼ÀÄ C zÁªÁ d«ÄãÀÄUÀ¼ÀÄ £ÀªÀÄä »jAiÀÄgÀ D¹ÛUÀ¼ÀÄ C zÁªÁ d«ÄãÀÄUÀ¼ÀÄ £ÀªÀÄä »jAiÀÄgÀ D¹ÛUÀ¼ÀÄ CAzÀgÉ AzÀgÉ AzÀgÉ AzÀgÉ ¸Àj. ¸Àj. ¸Àj. ¸Àj. ¥Á®Ä «¨sÁUÀ DVgÀÄvÁÛgÉ CAvÀ vÉÆÃj¸À®Ä ¥Á®Ä «¨sÁUÀ DVgÀÄvÁÛgÉ CAvÀ vÉÆÃj¸À®Ä ¥Á®Ä «¨sÁUÀ DVgÀÄvÁÛgÉ CAvÀ vÉÆÃj¸À®Ä ¥Á®Ä «¨sÁUÀ DVgÀÄvÁÛgÉ CAvÀ vÉÆÃj¸À®Ä zÁR¯ÉAiÀÄ£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ ºÁdgÀÄ ¥Àr¹®è CAzÀgÉ ¸Àj. zÁR¯ÉAiÀÄ£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ ºÁdgÀÄ ¥Àr¹®è CAzÀgÉ ¸Àj. zÁR¯ÉAiÀÄ£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ ºÁdgÀÄ ¥Àr¹®è CAzÀgÉ ¸Àj. zÁR¯ÉAiÀÄ£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ ºÁdgÀÄ ¥Àr¹®è CAzÀgÉ ¸Àj. ªÁ¢ ªÀÄvÀÄÛ ªÁ¢ ªÀÄvÀÄÛ ªÁ¢ ªÀÄvÀÄÛ ªÁ¢ ªÀÄvÀÄÛ 4£Éà ¥ÀæwªÁ¢ vÀªÀÄä ¥Á°£À £Éà ¥ÀæwªÁ¢ vÀªÀÄä ¥Á°£À £Éà ¥ÀæwªÁ¢ vÀªÀÄä ¥Á°£À £Éà ¥ÀæwªÁ¢ vÀªÀÄä ¥Á°£À »¸ÉìAiÀÄ£ÀÄß »¸ÉìAiÀÄ£ÀÄß »¸ÉìAiÀÄ£ÀÄß »¸ÉìAiÀÄ£ÀÄß 2 ªÀÄvÀÄÛ ªÀÄvÀÄÛ ªÀÄvÀÄÛ ªÀÄvÀÄÛ 3£Éà ¥ÀæwªÁ¢AiÀÄ vÀAzÉAiÀÄ ¥Á°UÉ £Éà ¥ÀæwªÁ¢AiÀÄ vÀAzÉAiÀÄ ¥Á°UÉ £Éà ¥ÀæwªÁ¢AiÀÄ vÀAzÉAiÀÄ ¥Á°UÉ £Éà ¥ÀæwªÁ¢AiÀÄ vÀAzÉAiÀÄ ¥Á°UÉ ©lÄÖPÉÆnÖgÀÄvÁÛgÉAzÀÄ zÁR¯ÉAiÀÄ£ÀÄß £ÁåAiÀiÁ®PÉÌ ºÁdg ©lÄÖPÉÆnÖgÀÄvÁÛgÉAzÀÄ zÁR¯ÉAiÀÄ£ÀÄß £ÁåAiÀiÁ®PÉÌ ºÁdg ©lÄÖPÉÆnÖgÀÄvÁÛgÉAzÀÄ zÁR¯ÉAiÀÄ£ÀÄß £ÁåAiÀiÁ®PÉÌ ºÁdg ©lÄÖPÉÆnÖgÀÄvÁÛgÉAzÀÄ zÁR¯ÉAiÀÄ£ÀÄß £ÁåAiÀiÁ®PÉÌ ºÁdgÀÄ ÀÄ ÀÄ ÀÄ ¥Àr¹®è CAzÀgÉ ¸Àj. ¥Àr¹®è CAzÀgÉ ¸Àj. ¥Àr¹®è CAzÀgÉ ¸Àj. ¥Àr¹®è CAzÀgÉ ¸Àj.” 23. On perusal of the cross-examination, it is seen that, the suit schedule properties are the ancestral properties and defendants No.1 and 3 have not produced any records to show that there was a prior partition in 1986 and the plaintiffs, defendants No.1 and 4 have relinquished their rights in favour of Venkappa. Further, defendants No.2 and 3 to prove their possession, have examined one Basappa Mavingidad as DW-3, who has deposed that defendants No.2 and 3 are in possession of the suit schedule property. Further, they also examined one Ramachandra Kallappa Daddi as DW-4 who has deposed in the same terms as DW-3. - 19 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 24. From the perusal of the entire evidence on record, the defense taken by defendants No.2 and 3 that there was a prior partition in the family of the plaintiff and defendants, is not proved and have failed to establish by producing cogent evidence that, there was a prior partition between the plaintiffs and defendants No.1 and 4 and Venkappa. It is settled law that, in case of the transfer of right of immovable property, if the value of the immovable property is more than Rs.100/-, it has to be done by way of a registered instrument as per Section 17 of the Registration Act, 1908. Admittedly, defendants No.2 and 3 except contending that, the plaintiff, defendants No.1 and 4 have relinquished their rights in favour of Venkappa, have not produced any records. Hence, the defendants failed to establish that the plaintiff, defendants No.1 and 4 have relinquished their rights in favour of Venkappa. Though, defendants have produced mutation entries, which disclose that partition was effected, but the mutation entries are not supported by any document or oral evidence. Defendants No.2 and 3 have not examined - 20 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 any witnesses who were present at the time of partition. Defendants No.2 and 3 have failed to establish that, there was a prior partition between the plaintiff, defendants No.1 and 4 and Venkappa and the plaintiffs have relinquished their rights in favour of their father regarding the suit schedule properties. In view of the above discussion we answer point No.2 in the negative. Re. Point No.3 and 4 : These points are interlinked, hence they are taken for common discussion. 25. The trial Court, considering the entire materials on record has rightly recorded a finding that defendants No.2 and 3 have failed to prove prior partition in 1986. The trial Court, while granting a share has committed an error in granting 1/8th share to the plaintiff, without considering Section 6 of the Hindu Succession (Amendment) Act, 2005. The plaintiff being a daughter of Venkappa, as she is the coparcener, is entitled to equal share with that of a son in view of the law laid down by - 21 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 the Hon’ble Apex Court is Vineeta Sharma V. Rakesh Sharma reported in AIR 2020 SC 3717. The trial Court, to that extent has committed an error. In view of the above discussion, we answer point No.3 in the negative and point No.4 in the affirmative. 26. Plaintiff is entitled to a 1/4th share. The plaintiffs, defendants No.1 and 4 each are entitled to 1/4th share. Defendants No.2 and 3 together, are entitled to 1/4th share. 27. In view of the above discussion we proceed to pass the following: ORDER (i) The Appeal filed by defendants No.2 and 3 is dismissed. (ii) The Cross objection filed by the plaintiff, is allowed in part. (iii) The Plaintiff, defendants No.1 and 4 each are entitled to 1/4th share in the suit schedule - 22 - NC: 2025:KHC-D:2130-DB RFA No. 100461 of 2018 C/W RFA.CROB No. 100004 of 2022 properties, and defendants No.2 and 3 together are entitled to 1/4th share. The Office is directed to draw a preliminary decree. No order as to the costs. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE BVK; List No.: 1 Sl No.: 8