- 1 - HC-KAR NC: 2025:KHC-D:7769 RFA No. 100123 of 2017 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 18TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.100123 OF 2017 (PAR) BETWEEN: 1. 1A. SMT. SHRIMATHI MAHABALESHWAR HEGDE, SINCE DECEASED BY HER LRS., MAHENDRA MAHABALESHWAR HEGDE, A/A 41 YEARS, OCC: CENTRAL POLICE, R/O: GOLI, TQ: SIRSI (U.K.), NOW AT LATUR, MAHARASTRA STATE, PIN-581 401. 1B. MAMATA KOM VINAYA BHAT, A/A 40 YEARS, OCC: HOUSEHOLD, R/O: SHAMEMANE, BALESAR, TQ: SIDDAPUR, PIN-581 355. … APPELLANTS (BY SRI S.V.YAJI, ADVOCATE.) AND: 1. U.F.M. GAJANAN VENKATRAMANA HEGDE, A/A 66 YEARS, OCC: AGRICULTURE, R/O: HANAGAR, POST: JANMANE, TQ: SIRSI (U.K.), PIN-581 404. 2. CHANDRASHEKHAR VENKATRAMANA HEGDE, A/A 69 YEARS, OCC: AGRICULTURE, R/O: HANAGAR, POST: JANMANE, TQ: SIRSI (U.K.), PIN-581 404. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:7769 RFA No. 100123 of 2017 3. SHYAMALA GOPAL HEGDE, A/A 53 YEARS, OCC: HOUSEHOLD, R/O: JANAGERI, TQ: MUNDGOD(U.K.), PIN-581 349. 4. ANAND GOPAL HEGDE, A/A 25 YEARS, STUDENT, R/O: JANAGERI, TQ: MUNDGOD (U.K.), PIN-581 349. 5. JAYARAM GOPAL HEGDE, A/A 30 YEARS, STUDENT, R/O: JANAGERI, TQ: MUNDGOD,(U.K.), PIN-581 349. 6. SHRIPAD SATYANARAYAN BHAT, A/A 51 YEARS, OCC: EMPLOYEE, R/O: LAXMINARAYAN NIVAS, H.NO. 1-93/8, BRANDAVAN NAGAR, 3RD MAIN, 2ND LEFT, HOSABETTU, SURATKAL, MANGALORE, PIN-575 014. 7. GAJANAN SATYANARAYAN BHAT, A/A 35 YEARS, OCC: SERVICE, R/O: ARB ENERGY, BIJAI, MANGALORE, PIN-575 004. 8. JAYALAXMI DATTATREYA HEGDE, A/A 40 YEARS, OCC: HOUSEHOLD, R/O: SHEDIKODLU, SIRSI, (U.K.), LALITA KOM DIVAKAR HABBU, SINCE DECEASED BY HER LR’S., 9. GANESH DIVAKAR HABBU, A/A 40 YEARS, OCC: EMPLOYEE, R/O: #201, 3RD FLOOR, SAI HOMES APARTMENT, DWARAKA NAGAR, CHANNASANDRA, UTTARAHALLI, KENGERI MAIN ROAD, BENGALORE-560 008. 10. CHAITRESH DIVAKAR HABBU, A/A 33 YEARS, OCC: LAWYER, R/O: #201, 3RD FLOOR, - 3 - HC-KAR NC: 2025:KHC-D:7769 RFA No. 100123 of 2017 SAI HOMES APARTMENT, DWARAKA NAGAR, CHANNASANDRA, ATTARAHALLI, KENGERI MAIN ROAD, BENGALORE-560 098. 11. VANITA MAHABALESHWAR HEGDE, A/A 52 YEARS, OCC: HOUSEHOLD, R/O: HEGADEKATTA-YADALLI, PO: KAMBIGAR, TQ: SIRSI (U.K.), PIN-541 407. 12. SAVITA GAJANAN HEGDE, A/A 55 YEARS, OCC: HOUSEHOLD, R/O: RAJENDRA NILAY, 4TH CROSS, VIVEKANANDA NAGAR, SIRSI (U.K.), PIN-581 407. 13. ABDUL GAFFAR HASAN KHAN, A/A 47 YEARS, OCC: AGRICULTURE, R/O: INDIRA NAGAR, TQ: SIRSI, PIN-581 401. … RESPONDENTS (BY SRI VISHWANATH HEGDE, ADVOCATE FOR C/R13; SRI A.P.HEGDE JANMANE AND SRI VIJAY MALALI, ADVOCATES FOR R1-R8, R11 AND R12 (GPA); R9 AND R10 – SERVICE OF NOTICE HELD SUFFICIENT.) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CIVIL PROCEDURE CODE, 1908, PRAYING TO MODIFY THE JUDGMENT AND DECREE DATED 13.02.2017 PASSED IN O.S.NO.25/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, SIRSI, BY GRANTING 1/8TH SHARE IN ALL THE SUIT SCHEDULE PROPERTIES AND CONSEQUENTLY TO DECREE THE SUIT BY ALLOWING THIS APPEAL AND ETC.,. THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC-D:7769 RFA No. 100123 of 2017 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by the plaintiffs challenging the judgment and decree dated 13.02.2017, passed by the Senior Civil Judge, Sirsi, in O.S.No.25/2012, so far as against not granting decree of partition insofar as suit schedule B property as well as being aggrieved regarding allotment of quantum of share. 2. Heard the arguments of learned counsels appearing for both the sides and perused the material placed before the Court. 3. For the purpose of convenience and easy reference, ranking of the parties is referred to as per their status before the trial Court. 4. The plaintiff has filed suit for partition and separate possession of suit schedule properties by metes and bounds, by contending that the suit properties are ancestral and joint family properties. There are totally three schedule properties which are shown as A, B and C schedule - 5 - HC-KAR NC: 2025:KHC-D:7769 RFA No. 100123 of 2017 properties. The trial Court has decreed the suit so far as suit schedule A and C properties by granting 1/20th share to the deceased plaintiff and so far as schedule B property is concerned, the suit is dismissed. Therefore, being aggrieved by dismissing the suit, so far as schedule B property is concerned and also on the quantum of share allotted, the present appeal is filed. 5. The defendants have appeared through their advocate and filed the written statement. It is the contention of the defendants that the suit schedule B property was sold for family and legal necessities and therefore the sale is binding on the plaintiffs. Therefore, prays to dismiss the suit. 6. On the basis of the pleadings of the parties, the trial Court has framed the following: ISSUES 1. Whether the plaintiff proves that suit schedule properties belongs to the joint family consisting of herself and defendant Nos.1 to 11? 2. Whether defendant No.1 proves that plaint "B" schedule property is his absolute self acquired property? - 6 - HC-KAR NC: 2025:KHC-D:7769 RFA No. 100123 of 2017 3. Whether defendant Nos. 1 and 2 prove the alleged liabilities of the family and hence plaintiff is also liable to share on those liabilities? 4. Whether defendant No.12 proves that he is the bonafide purchaser of plaint "B" schedule property, for value received? 5. Whether defendant Nos.1 and 2 prove that in their favour defendant Nos.3 to 11 by executing alleged Registered Relinquishment Deed in respect of their share in suit schedule properties and hence plaintiff is not entitled to get her alleged 1/8th share in the suit schedule properties? 6. Whether Defendant No.1 and 2 prove that plaintiff has already been given share by way of cash and gold on several occasions and hence plaintiff is not entitled to get her alleged share in the suit schedule properties? 7. Whether the plaintiff is entitled to get separate possession of her alleged 1/8th share in suit schedule properties by metes and bounds? 8. Whether the plaintiff is entitled to seek Accounts from defendant Nos.1 and 2? 9. What order or decree? 7. The trial Court decreed the suit so far as against suit schedule A and C properties by giving 1/20th share in favour of the plaintiff. The schedule B property is concerned, - 7 - HC-KAR NC: 2025:KHC-D:7769 RFA No. 100123 of 2017 the suit is dismissed. The trial Court held that the suit schedule properties are ancestral and joint family properties and accordingly granted decree for partition. The trial Court has assigned reason for not granting decree for partition so far as schedule B property is concerned that the suit schedule B property is sold out for family and legal necessities. If the suit schedule B property is not sold out, then the entire family would have been in a position to lose the other properties. Therefore, in order to save the other properties, the defendants were constrained to sell away schedule B property for family and legal necessities. Therefore, decreed the suit so far as suit schedule A and C properties and rejected the suit so far as suit schedule B property is concerned. 8. Heard the arguments of learned counsel appearing for both the sides and perused the records. Accordingly, the following points would arise for consideration in this appeal. - 8 - HC-KAR NC: 2025:KHC-D:7769 RFA No. 100123 of 2017 i. Whether, under the facts and circumstances involved in the case, the plaintiffs are entitled to partition in the suit schedule B property? ii. Whether, under the facts and circumstances involved in the case, the defendants prove that the suit schedule B property was sold out for family and legal necessities, thus it is also binding on the deceased plaintiff? iii. Whether, under the facts and circumstances involved in the case, the quantum of share given by the Trial Court requires any interference? 9. Learned counsel for the appellants/plaintiffs submitted that the Trial Court has committed an error in not granting decree so far as the suit schedule B property is concerned. Also, the trial Court wrongly held that the sale of suit schedule B property was for family and legal necessities, but the defendants with an ulterior motive, sold suit schedule B property, which was not for family and legal necessities. Therefore, to this extent appreciation of evidence by the Trial Court is contrary to the evidence on record. Further, submitted that share given to the plaintiffs as 1/20th in suit schedule A and C properties is not correct, but the plaintiffs - 9 - HC-KAR NC: 2025:KHC-D:7769 RFA No. 100123 of 2017 are entitled equal share as that of a son. Therefore, praying to grant share in suit schedule B property and also claiming 1/8th share in all suit schedule properties, the present appeal is filed and prays to allow the appeal. 10. Learned counsel for the defendants/respondents submitted that the quantum of share given and decree are not correct as per the principle of law laid down by the Hon’ble Supreme Court in the case of VINEET SHARMA VS. RAKESH SHARMA1 (Vineet Sharma Case). Further, submitted that the trial Court is correct in not granting share/decree in suit schedule B property is concerned as the defendants were constrained to sell suit schedule B property for family and legal necessities. If suit schedule B property had not been sold, then the entire family would have lost all the properties. Therefore, to save other properties, the defendants were constrained to sell away suit schedule B property, which is also binding on the plaintiff and this fact is admitted by the plaintiff in her evidence. Therefore, the trial 1 AIR 2020 SC 3717 - 10 - HC-KAR NC: 2025:KHC-D:7769 RFA No. 100123 of 2017 Court is correct in appreciating the evidence on record. Thus, prays to dismiss the appeal. REASONINGS: 11. There is no dispute regarding the nature of properties as they are ancestral and joint family properties. Also there is no dispute regarding the relationship of plaintiff and defendant Nos.1 to 11. Defendant No.12 is the purchaser of suit schedule B property. 12. On the other hand, learned counsel for respondents/defendant Nos.1 and 12 argued that the plaintiff herself in her evidence admitted that if suit schedule B property was not sold out, then there would have been threat of losing all the suit schedule properties (suit schedule A and C properties). Therefore, for family and legal necessities, suit schedule B property was sold out. 13. Upon appreciating the evidence on record, the trial Court has correctly dismissed the suit so far as suit schedule B property is concerned. Upon considering the - 11 - HC-KAR NC: 2025:KHC-D:7769 RFA No. 100123 of 2017 evidence on record as appreciated by the trial Court, PW-1/plaintiff, in her cross-examination admitted that there was necessity for clearing of suit schedule B property, as there was a huge debt to the family and to clear off the said debt, there arose a constraint to sell away suit schedule B property to save the other properties, which are suit schedule A and C properties. 14. Further, PW-1 admitted that for medical treatment of their mother and to repay the family debts and to meet the expenses of the family necessities, defendant Nos.1 and 2 were constrained to sell suit schedule B property. Though Exs.D2 to D9 receipts of co-operative bank prove that the reason for raising the loan was only to the extent of Rs.10,00,000/-, PW-2 admitted that their mother was under medical treatment; hence for meeting the said expenses and also for clearing other debts incurred by the family defendant Nos.1 and 2 were constrained to sell suit schedule B property in favour of defendant No.12. This is admitted by PW-1 in her cross-examination. - 12 - HC-KAR NC: 2025:KHC-D:7769 RFA No. 100123 of 2017 15. Further, PW-1 admitted that the father was suffering from ailments for six to seven years prior to his death and at that time, defendant No.10 was still unmarried. Therefore, when this being the fact, both the father and mother were under continuous medical treatment due to their old age ailments and also at that time, defendant No.10 was unmarried. Therefore, it was necessity for the family to sell suit schedule B property. Just because, Exs.D2 to D9 show that the loan was raised to the extent of Rs.10,00,000/- but for further family necessities, such as meeting medical expenses and performing the marriage of defendant No.10, the total sale consideration afforded by the loan the other further sale consideration amount must have been utilized. Therefore, this proves the family and legal necessity for defendant Nos.1 and 2 to sell the land i.e., suit schedule B property to defendant No.12. PW-1 in her cross- examination on 04.01.2016 admitted that there was huge debt on the suit schedule B property. Further admitted that if this suit schedule B property had not been sold out, then there would have been threat of losing other properties also. - 13 - HC-KAR NC: 2025:KHC-D:7769 RFA No. 100123 of 2017 Therefore, this is correctly appreciated by the trial Court for not granting decree so far as suit schedule B property is concerned. 16. Further, to the suggestion made to PW-1 that the sale consideration of selling suit schedule B property about an amount of more than Rs.20,00,000/- was utilized for repayment of debt. For this, the answer given by PW-1 was that it may be true that such necessities were arisen. Therefore, all these evidence of PW-1 proves the fact that there was family and legal necessity to sell suit schedule B property. Therefore, when this being the fact, the alienation of land by defendant No.2 in favour of defendant No.12 could not be termed as illegal transaction causing deprivation of right of the plaintiff. Therefore, in this regard the Trial Court has correctly appreciated the evidence on record. The Trial Court has appreciated the evidence on record correctly by applying the principles enunciated under the Mulla’s Hindu law regarding under what necessities alienation of ancestral property by the Karta of the joint family is correctly considered. Therefore, there is no merit found in the - 14 - HC-KAR NC: 2025:KHC-D:7769 RFA No. 100123 of 2017 submission in this regard so far as not granting decree in suit schedule B property is concerned. Therefore, to this extent, the appeal is liable to be dismissed. 17. So far as the quantum of share is concerned, the Trial Court has committed an error in not following the judgment of Hon’ble Supreme Court in the case of Vineeta Sharma (stated supra). The Trial Court has adopted the principle of notional partition that is overruled by the Hon’ble Supreme Court in the Vineeta Sharma case (stated supra). Therefore, the plaintiff is also entitled to an equal share as that of her brothers. Therefore, the plaintiff is entitled 1/8th share in the suit schedule A and C properties. Accordingly, I answer point Nos.(i) to (iii) in the affirmative. 18. In the result, I proceed to pass the following: ORDER i. The appeal is allowed-in-part. ii. The judgment and decree dated 13.02.2017 passed in O.S.No.25/2012 on the file of Senior Civil Judge, Sirsi, stands modified to - 15 - HC-KAR NC: 2025:KHC-D:7769 RFA No. 100123 of 2017 the extent that the plaintiff is entitled to 1/8th share in suit schedule A and C properties. iii. The judgment and decree passed by the Trial Court in so far as dismissal of suit for suit schedule B property is concerned is confirmed. iv. Registry is directed to send back the trial Court Records along with copy of this judgment to the trial Court. v. No order as to costs. vi. Draw decree accordingly. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MRK-para 1 to 7. SRA-para 8 to end. CT:BCK LIST NO.: 1 SL NO.: 31