- 1 - NC: 2025:KHC-D:6273-DB RFA No. 100103 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 8TH 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.100103 OF 2019 (PAR/POS) BETWEEN: 1. CHANDRASHEKHAR S/O. HALAPPA SAKRAPPANAVAR AGE: 78 YEARS, OCC: RETIRED TEACHER, R/O: KAMADOD, AT PRESENT: C/O. VIJALAKSHMI G. VALI, 1 CROSS, BASAVANAGUDI, SHIVAMOGGA-577201. 2. VIJAYALAKSHMI W/O. GADLEPA VALI AGE: 42 YEARS, OCC: HOUSEHOLD, R/O: 1ST CROSS, BASAVANAGUDI, SHIVAMOGGA-577201. …APPELLANTS (BY SRI. DINESH M.KULKARNI, ADVOCATE) AND: 1. SHASHIDHAR S/O. CHANDRASHEKHAR SAKREPPANAVAR, AGE: 46 YEARS, OCC: BUSINESS, R/O: DOOR NO.1193, MRUTHUNJAYA NAGAR, NEAR GAS GODOWN, WARD NO.5, TQ: RANEBENNUR, DIST: HAVERI-581115. 2. SMT. NEELAVATI W/O. CHANDRASHEKHAR SAKREPPANAVAR, AGE: 74 YEARS, OCC: HOUSEHOLD, R/O: KAMADOD, AT PRESENT: C/O. VIJALAKSHMI G. VALI, 1ST CROSS, BASAVANAGUDI, SHIVAMOGGA-577201. …RESPONDENTS (BY SRI. D.M.MALLI AND SRI. MANJUNATH A.KARIGANNAVAR, ADVOCATES) Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.04.19 11:13:23 +0530 - 2 - NC: 2025:KHC-D:6273-DB RFA No. 100103 of 2019 THIS RFA IS FILED UNDER SEC.96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 02.11.2018 PASSED IN O.S.NO.203/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, RANEBENNUR, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL IS 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) Captioned appeal is by the unsuccessful plaintiffs, who are aggrieved by the judgment and decree dated 02.11.2018 rendered in O.S.No.203/2015, wherein plaintiffs suit seeking the relief of partition and separate possession is declined by the trial Court on the ground that the suit schedule property is the self-acquired property of defendant No.1. Consequently, suit is dismissed. Hence, this appeal is by plaintiffs No.1 and 3. 2. For the sake of convenience, the parties are referred to as per their rank before the trial Court. - 3 - NC: 2025:KHC-D:6273-DB RFA No. 100103 of 2019 3. Plaintiff No.1, father of defendant No.1, along with his wife-Neelavati and daughter-Smt.Vijayalakshmi instituted a suit against the son-defendant No.1 seeking relief of partition and separate possession. Pending suit, plaintiff No.1’s wife-Neelavati got herself transposed as defendant No.2. Plaintiff No.1 in the plaint claimed that he was working as a government teacher and out of savings from his salary, GPF, LIC and KGID savings, purchased the property in the name of defendant No.1. Plaintiff No.1 contends that ever since the date of purchase, both the plaintiffs and defendants have been in joint possession and enjoyment of the suit schedule property. Plaintiff No.1 alleges that in the year 2013, with an ulterior motive to deprive the plaintiffs of their legitimate share, Defendant No.1 forcibly ousted Plaintiff No.1 from the suit schedule property. The plaintiffs assert that the suit schedule property comprises an RCC building divided into four portions. Defendant No.1 allegedly retained one portion for himself and his family while renting out the remaining portions. Plaintiff No.1 further states that Defendant No.1 - 4 - NC: 2025:KHC-D:6273-DB RFA No. 100103 of 2019 is earning monthly rental income ranging from Rs.20,000/- to Rs.25,000/- from these rented portions. Despite repeated demands for partition and allocation of the plaintiffs’ legitimate share, Defendant No.1 has refused, leading to the filing of the present suit. 4. Upon receipt of summons, Defendant No.1 appeared before the court and filed a written statement, categorically denying the averments made in the plaint. 5. Defendant No.1 contends that Plaintiff No.1 has already instituted a partition suit in O.S. No. 67/2015 against his brothers, seeking a share in the ancestral properties. Defendant No.1 alleges that Plaintiff No.1 is, in fact, denying him his rightful share in those ancestral properties. Accordingly, Defendant No.1 has filed a counterclaim in the present suit, asserting a claim to a share in the ancestral properties and has sought dismissal of the present suit as being not maintainable. 6. Both Plaintiff No.1 and Defendant No.1 have adduced oral and documentary evidence in support of their - 5 - NC: 2025:KHC-D:6273-DB RFA No. 100103 of 2019 respective claims. Upon evaluating the evidence, the Trial Court answered Issue No.1 in the negative, holding that the plaintiffs failed to establish that the suit schedule property is joint family ancestral property. Similarly, the Trial Court answered Issue No.3 in the negative, concluding that the defendants had also failed to prove that the counterclaim properties constituted joint family ancestral properties. The judgment rendered by the Trial Court has been challenged in the present proceedings. 7. The learned counsel for the plaintiffs, reiterating the grounds stated in the plaint, vehemently argued that Defendant No.1 was only about 21 years old and a student at the time of the property's purchase. He contended that Plaintiff No.1 invested his personal savings, including amounts from salary, GPF, LIC, and KGID, in acquiring the suit schedule property. Therefore, he submits that the property is joint family property and that the plaintiffs are entitled to their rightful share therein. - 6 - NC: 2025:KHC-D:6273-DB RFA No. 100103 of 2019 8. In response, the learned counsel for Defendant No.1 asserted that the suit schedule property is the self- acquired property of Defendant No.1. He referred to rebuttal evidence, particularly Ex.D.16, a memorandum of deposit of title deed, to show that Defendant No.1 had mortgaged the property to Azad Urban Cooperative Bank Limited in 2001 and obtained a housing loan. To further support this claim, he submitted Ex.D.17 (bank passbook), Ex.D.18 (receipt evidencing receipt of Rs.75,000/- as loan), and Ex.D.19 (assessment register extract for 2001– 2002), all of which indicate that the property stands in Defendant No.1’s name. 9. Furthermore, the learned counsel referred to the mutation extracts marked as Ex.D.22 and Ex.D.23, along with Ex.D.24, to show that Defendant No.1 repaid a loan amount of Rs.1,00,000/-. He argued that this body of documentary evidence clearly establishes Defendant No.1’s exclusive ownership of the suit schedule property. - 7 - NC: 2025:KHC-D:6273-DB RFA No. 100103 of 2019 Therefore, he submitted that the plaintiffs’ suit is not maintainable and prayed for its dismissal. 10. Heard the learned counsels appearing for plaintiffs and defendants. Perused the records.We have given our anxious consideration to the pleadings, oral and documentary evidence. The following points would arise for consideration: (i) Whether the finding of the trial Court that the plaintiffs have failed to substantiate that suit schedule property is the joint family property of plaintiffs and defendants suffers from perversity and warrant interference at the hands of this Court? FINDINGS ON POINT No.(i):- 11. The present suit has been instituted by Plaintiff No.1, who is the father, jointly with Plaintiff No.2, his daughter, against Defendant No.1, who is none other than the son of Plaintiff No.1. The core of Plaintiff No.1’s contention is that he had purchased the vacant site, which - 8 - NC: 2025:KHC-D:6273-DB RFA No. 100103 of 2019 is the subject matter of the present suit, in the name of Defendant No.1 during a time when the latter was merely 21 years old and pursuing his studies. Plaintiff No.1 asserts that, at the relevant point in time, Defendant No.1 had no independent source of income and was financially dependent. It is specifically alleged that Plaintiff No.1, who was employed as a government teacher, utilized his personal savings including funds accumulated through his salary, General Provident Fund (GPF), Life Insurance Corporation (LIC) policies, and Karnataka Government Insurance Department (KGID) benefits to finance the purchase of the property. Consequently, Plaintiff No.1 asserted that although the title to the suit schedule property stands in the name of Defendant No.1, the property was in fact acquired through Plaintiff No.1’s self- earned funds, and thus, beneficial ownership rests with him. 12. However, a significant point of contradiction emerges in the very stand taken by Plaintiff No.1. While - 9 - NC: 2025:KHC-D:6273-DB RFA No. 100103 of 2019 asserting that he is the true purchaser of the property and that Defendant No.1 was merely the name-lender due to his minority and lack of income, Plaintiff No.1 curiously proceeds to plead that the plaintiffs and defendants together constitute a Hindu undivided family, and therefore, the suit schedule property belongs to the joint family estate, entitling the plaintiffs to a share through partition. This stand, upon close scrutiny, appears to be a tactical legal maneuver. It seems that Plaintiff No.1, rather than directly seeking a declaratory relief asserting that the suit schedule property is his own and the name of Defendant No.1 is merely benami, has chosen instead to frame the suit as one for partition. This approach appears to be designed to circumvent the legal bar imposed by the Prohibition of Benami Property Transactions Act, 1988 (hereinafter referred to as ‘the Act’ for brevity), which prohibits benami transactions and bars any claim to property held benami unless specifically falling within exceptions provided under the Act. The relief of partition, it seems, is being employed as a facade to indirectly assert - 10 - NC: 2025:KHC-D:6273-DB RFA No. 100103 of 2019 ownership which is otherwise barred from direct assertion under the provisions of the Act. 13. A meticulous reading of the averments in the plaint, particularly paragraphs 4 and 5, unmistakably points to the case being rooted in a benami transaction. In these paragraphs, Plaintiff No.1 narrates that the suit schedule property was purchased in the name of his son, Defendant No.1, using his (plaintiff’s no.1) own funds, thereby clearly suggesting that the title holder (Defendant No.1) is not the real owner. This Court is therefore of the considered view that the plaintiffs’ case falls squarely within the ambit of a benami transaction as contemplated under the Act. To illustrate the nature of the transaction and the manner in which Plaintiff No.1 attempts to establish beneficial ownership while avoiding the rigors of the Act, it is apposite to reproduce the relevant portions of the plaint paragraphs 4 and 5 which unequivocally set out the foundation of the plaintiffs’ case as one based on an - 11 - NC: 2025:KHC-D:6273-DB RFA No. 100103 of 2019 alleged benami nature of the property. Relevant paras are as under: “4) 1£Éà ªÁ¢AiÀÄÄ ¸ÀPÁðj ²PÀëPÀ¤zÀÄÝ ¸ÉÃªÉ ªÀiÁr ¤ªÀÈvÀÛ£ÁVgÀÄvÁÛ£É. ¸ÀzÀj 1£Éà ªÁ¢AiÀÄÄ vÁ£ÀÄ £ËPÀjAiÀÄ°è vÀ£Àß £ËPÀjAiÀÄ ºÀt¢AzÀ CAzÀgÉ f¦J¥sï, J¯ïL¹, ªÀÄvÀÄÛ PÉfLr EªÀÅUÀ¼À°è PÀÆrlÖ ºÀt¢AzÀ zÁªÉÃzÀ D¹ÛAiÀÄ£ÀÄß CAzÀgÉ SÁ° ¤ªÉñÀ£ÀªÀ£ÀÄß vÀ£Àß ªÀÄUÀ£ÁzÀ 1£Éà ¥ÀæwªÁ¢AiÀÄ ºÉ¸ÀgÀ¯Éà Rjâ ªÀiÁrgÀÄvÁÛ£É. DzÀgÉ ¸ÀzÀj D¹ÛAiÀÄÄ ªÁ¢AiÀÄgÀ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄ »AzÀÆ C«¨sÀPÀÛ WÀgÁuÉÃzÀ D¹Û EgÀÄvÀÛzÉ. ªÀÄÄAzÉ Rjâ »rzÀ SÁ° ¤ªÉñÀ£ÀzÀ°è £ÀUÀgÀ¸À¨sɬÄAzÀ ¥ÀgÀªÁ¤UÉAiÀÄ£ÀÄß ¥ÀqÉzÀÄ CªÀ±Àå PÀgÀ PÀAzÁAiÀÄUÀ¼À£ÀÄß vÀÄA© PÀlÖqÀªÀ£ÀÄß ¸ÀºÀ 1£Éà ªÁ¢AiÉÄà PÀnÖ¹zÀÄÝ EgÀÄvÀÛzÉ. 5) 1£Éà ªÁ¢AiÉÄà zÁªÉÃzÀ D¹ÛAiÀÄ ¤d ªÀiÁ°ÃPÀ£ÀÄ EzÀÝgÀÆ ¸ÀºÀ, vÀ£Àß ªÀÄUÀ£ÁzÀ ¥ÀæwªÁ¢AiÀÄ ºÉ¸ÀgÀ¯Éà ¦æÃw ªÀ «±Áé¸À¢AzÀ Rjâ ªÀiÁr¹gÀÄvÁÛ£É. Rjâ DzÀ ¯ÁUÁAiÀÄÄÛ ªÁ¢AiÀÄgÀÄ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄÄ zÁªÉÃzÀ D¹ÛAiÀÄ ªÀÄ£ÉAiÀÄ°è MnÖUÉ EgÀÄvÁÛ §A¢zÀÄÝ ªÀÄÄAzÉ ¥ÀæwªÁ¢AiÀÄÄ 2013 r¸ÉA§gï£À°è 1 ªÀÄvÀÄÛ 2£Éà ¥ÀæwªÁ¢UÀ¼À£ÀÄß ¥ÀæwªÁ¢AiÀÄÄ CªÀjUÉ zÁªÉÃzÀ EgÀĪÀ vÀ¯Á 1:4 »¥ÉàzÀ ºÀPÀÌ£ÀÄß PÉÆqÀ¨ÁgÀzÀÄ JA§ zÀÄgÀÄzÉÝñÀ¢AzÀ zÁªÉÃzÀ D¹Û¬ÄAzÀ ºÉÆgÀ ºÁQgÀÄvÁÛ£É. zÁªÉÃzÀ D¹ÛAiÀÄ°è Dgï¹¹ PÀlÖqÀUÀ½zÀÄÝ 3 ¨sÁUÀUÀ¼À£ÀÄß ¨ÁrUÉUÉ PÉÆnÖzÀÄÝ MAzÀÄ ¨sÁUÀzÀ°è ¥ÀæwªÁ¢AiÀÄÄ vÀ£Àß PÀÄlÄA§zÉÆA¢UÉ ªÁ¸ÀªÁVgÀÄvÁÛ£É. ¥ÀæwªÁ¢AiÀÄÄ zÁªÉÃzÀ D¹ÛAiÀÄ°è ¨ÁrUÉUÉ PÉÆlÖ PÀlÖqÀUÀ½AzÀ wAUÀ½UÉ ¸ÀĪÀiÁgÀÄ 20 jAzÀ 25 ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À GvÀà£ÀߪÀ£ÀÄß ¸ÀºÀ vÁ£ÉƧâ£Éà vÉUÉzÀÄPÉÆAqÀÄ ªÁ¢AiÀÄjUÉ AiÀiÁªÀÅzÉà vÉgÀ£ÁzÀ GvÀà£ÀߪÀ£ÀÄß PÉÆnÖgÀĪÀÅ¢®è. F §UÉÎ ªÁ¢AiÀÄgÀÄ zsÀªÀiÁð£Àå GvÀà£ÀߪÀ£ÀÄß ¸ÀºÀ ¥ÀqÉAiÀÄ®Ä ºÀPÀÄÌzÁgÀgÀÄ EgÀÄvÁÛgÉ.” 14. Upon a detailed examination of the extracted pleadings, this Court is of the considered view that Plaintiff No.1 has, in essence, taken the stand that the suit schedule property is his self-acquired property. A close reading reveals that Plaintiff No.1 contends that he purchased the property in the name of his son, Defendant No.1, by investing his own earnings derived from salary and accumulated savings under various government schemes, including the General Provident Fund (GPF), Life - 12 - NC: 2025:KHC-D:6273-DB RFA No. 100103 of 2019 Insurance Corporation (LIC), and Karnataka Government Insurance Department (KGID). However, it is pertinent to note that Plaintiff No.1 has already instituted a partition suit in O.S. No. 67/2015 against his brothers, seeking partition of ancestral properties. In that context, it appears that Plaintiff No.1 has strategically chosen to characterize the present suit schedule property as joint family ancestral property, allegedly held by the undivided Hindu joint family consisting of the plaintiffs and the defendant. This appears to be a deliberate legal strategy to reclaim possession and control of the property from his son, Defendant No.1, while simultaneously preventing any potential claim over the same by his brothers in the pending partition proceedings. The pleadings in paragraph 4 of the plaint provide a clear indication that the suit schedule property was purchased using Plaintiff No.1’s personal funds and earnings. Hence, it seems plausible that this suit has been ingeniously framed as one for partition to achieve dual objectives asserting beneficial ownership over the suit schedule property while also - 13 - NC: 2025:KHC-D:6273-DB RFA No. 100103 of 2019 shielding it from any claims arising in the ancestral partition suit filed by Plaintiff No.1 himself. 15. While the overall tenor of the pleadings suggests that Plaintiff No.1 considers the suit schedule property as his self-acquired asset, it is necessary for this Court to also take into account the oral evidence, particularly the cross-examination of Plaintiff No.1 (PW.1), which further clarifies his stance regarding the nature of the suit schedule property. During cross-examination, Defendant No.1 posed a specific question to Plaintiff No.1, asking why the suit schedule property was not included in the partition suit bearing O.S. No. 67/2015, filed against Plaintiff No.1’s brothers. In response, Plaintiff No.1 unequivocally stated that the present suit schedule property was not included in that partition suit as it is his self-acquired property. This admission made under oath is crucial, as it reinforces the assertion that Plaintiff No.1 does not regard the property as ancestral or jointly held with his brothers. Consequently, this statement further - 14 - NC: 2025:KHC-D:6273-DB RFA No. 100103 of 2019 weakens the plaintiffs’ current position that the property is part of the joint family estate of the plaintiffs and Defendant No.1. In view of the significance of this testimony, it is appropriate to extract the relevant portion of the cross-examination of PW.1, which reads as follows: “N.J¸ï.67.2015 zÁªÉAiÀÄ°è F zÁªÉAiÀÄ C¹ÛAiÀÄ£ÀÄß ¸ÉÃj¹®è. £À£Àß ¸ÀéAvÀ D¹ÛAiÀiÁVzÀÝjAzÀ £Á£ÀÄ CzÀ£ÀÄß ¸ÉÃj¹®è. ºÉzÀj ¸ÀzÀj D¹Û £À£Àß ªÀÄUÀ£À ¸ÀéAvÀ D¹ÛAiÀiÁVzÀÝjAzÀ £Á£ÀÄ zÁªÁ D¹ÛAiÀÄ£ÀÄß NJ¸ï£ÀA.67.2015 gÀ°è ¸ÉÃj¹®è JAzÀgÉ ¸ÀjAiÀÄ®è.” 16. Upon a meticulous reading of paragraph 4 of the plaint, conjointly with the unequivocal admissions made by Plaintiff No.1 during his cross-examination, it becomes abundantly clear that the relief of partition sought in the present suit is fundamentally misconceived and legally untenable. Plaintiff No.1 has categorically asserted that he financed the purchase of the suit schedule property through his personal earnings and accumulated savings. This specific assertion in the plaint lays the foundation for a claim based on self-acquisition. By stating that the property was purchased with his own funds and in the name of his son, Defendant No.1 who at - 15 - NC: 2025:KHC-D:6273-DB RFA No. 100103 of 2019 the time had no independent source of income and was still a student, plaintiff No.1 implicitly pleads a classic benami arrangement. In light of this, the plaintiff’s attempt to now frame the claim as one of partition of joint family property appears to be a deliberate deviation, presumably designed to circumvent the express bar under Section 4(1) of the Act. This provision explicitly prohibits any suit, claim, or action to enforce a right in respect of property held benami, against the person in whose name the property is held, effectively ousting the jurisdiction of civil courts in such matters. 17. It is further pertinent to observe that Plaintiff No.1 has not raised a direct plea asserting ownership or seeking declaratory relief over the suit schedule property. Instead, he has chosen to cloak his claim in the form of a partition suit, asserting that the suit schedule property is joint family property belonging to the undivided Hindu family comprising the plaintiffs and Defendant No.1. However, when the pleadings are dissected, particularly - 16 - NC: 2025:KHC-D:6273-DB RFA No. 100103 of 2019 paragraph 4, and when one considers the fact that the suit schedule property has not been included in the earlier partition suit filed by Plaintiff No.1 against his brothers in O.S.No.67/2015 (which pertained to ancestral agricultural lands), it becomes abundantly clear that the property in question was never treated as part of the joint family corpus. On the contrary, Plaintiff No.1’s own case is that no ancestral funds or joint family assets were utilized in the acquisition of the suit schedule property. Consequently, if the agricultural lands and ancestral properties are excluded and if the transaction is, by the plaintiff no.1 own showing, rooted in his individual savings and efforts, the inevitable legal conclusion is that the property was acquired in a benami fashion and is thus barred from judicial scrutiny by virtue of Section 4 of the Act. 18. The explanation offered by learned counsel for the plaintiffs that Plaintiff No.1 has not asserted exclusive ownership but has instead sought a share through - 17 - NC: 2025:KHC-D:6273-DB RFA No. 100103 of 2019 partition cannot be sustained in the face of the pleadings and admissions on record. It is not open to a litigant to assert self-acquisition of a property and simultaneously seek partition in respect of that very property under the guise of it being joint family property. Such an inconsistent and contradictory stand cannot be permitted in law. The foundational averments in the plaint specifically that the purchase was made with the plaintiff’s individual savings and that Defendant No.1 had no income of his own amount to a direct admission that the title in Defendant No.1’s name was merely nominal. When viewed cumulatively, the pleading in paragraph 4 and the testimony of Plaintiff No.1 in cross-examination lead to an inescapable conclusion: this is a clear case of a benami transaction. Therefore, in view of the express prohibition under Section 4 of the Act, Plaintiff No.1 is barred from asserting any right or share in the suit schedule property, and the present suit for partition, being a mere attempt to bypass the statutory bar, is not maintainable. For the - 18 - NC: 2025:KHC-D:6273-DB RFA No. 100103 of 2019 foregoing reasons, we proceed to hold that point No.(i) is answered in the ‘negative’. Accordingly, appeal being devoid of merits stands dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE AM Ct:vh List No.: 1 Sl No.: 36