- 1 - NC: 2025:KHC-D:3140-DB RFA No. 100501 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH 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. 100501 OF 2022 (PAR/POS) BETWEEN: NINGAPPA S/O JEEVAPPA LATHI AGE.53 YEARS, OCC. PRIVATE EMPLOYEES R/O. MRUTHYUNJAYA NAGAR RANEBENNUR, DIST. HAVERI-581110. …APPELLANT (BY SRI. SURESH P. HUDEDAGADDI, ADV) AND: 1. KAMALAKSHI W/O GUTTEPPA MANNANNANAVAR AGE. 55 YEARS, OCC. OUT SOURCE EMPLOYEE R/O. SIDDESHWAR NAGAR, RANEBENNUR, DIST. HAVERI-581110. 2. GEETA D/O JEEVAPPA LATHI AGE.45 YEARS, OCC. ANGANAWADI WORKER R/O. MRUTHYUNJAYA NAGAR RANEBENNUR, DIST. HAVERI-581110. 3. ARJUN S/O RAJU PAUL AGE. 13 YEARS, OCC. STUDENT R/O. MRUTHYUNJAYA NAGAR RANEBENNUR, DIST. HAVERI-581110. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.03.01 11:06:12 +0530 - 2 - NC: 2025:KHC-D:3140-DB RFA No. 100501 of 2022 4. KEVIN S/O RAJU PAUL AGE. 11 YEARS, OCC. STUDENT R/O. MRUTHYUNJAYA NAGAR RANEBENNUR, DIST. HAVERI-581110. RESPONDENT NOS. 3 AND R4 ARE MINORS R/BY MINOR GUARDIAN RESPONDENT NO.2. 5. SANTOSH S/O SHEKAPPA BENNUR AGE. 41 YEARS, OCC. PRIVATE EMPLOYEE R/O. MRUTHYUNJAYA NAGAR RANEBENNUR, DIST. HAVERI-581110. …RESPONDENTS (BY SRI. PRUTHVIRAJ P HITTALMANI, ADV FOR C/R1 TO R4, NOTICE TO R5 IS SERVED BUT UNREPRESENTED) THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 10.11.2021 PASSED IN O.S.NO.87/2019 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, RANEBENNUR, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER : CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 3 - NC: 2025:KHC-D:3140-DB RFA No. 100501 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 the preliminary decree dated 10.11.2021 passed in O.S.No.87/2019 by the learned I Additional Senior Civil Judge and JMFC, Ranebennur. 2. For convenience, the parties are referred to, based on their ranking before the trial court. The appellant was defendant No.1, and respondent Nos.1 to 4 were the plaintiffs, and respondent No.5 was defendant No.3. 3. Brief facts leading rise to the filing of this Regular First Appeal are as follows: The plaintiff filed a suit against the defendants for partition and separate possession regarding the suit schedule properties. It is the case of the plaintiffs that, one Jeevappa was the original propositus. He had a wife by the name Ningavva. Jeevappa and Ningavva had four children, i.e., plaintiff Nos.1 and 2, defendant No.1 and - 4 - NC: 2025:KHC-D:3140-DB RFA No. 100501 of 2022 one Seeta, who is no more, and plaintiff Nos.3 and 4 are the children of Seeta. It is the case of the plaintiffs that, the suit schedule properties are the joint family properties of the plaintiffs, and defendant No.1. Jeevappa died on 11.03.1998, leaving behind his wife Ningavva, plaintiffs, and defendant No.1, as his legal heirs. Ningavva died on 06.03.2002. The younger daughter of the propositus by the name Seeta also died leaving behind her children, i.e., plaintiff Nos.3 and 4, under the care and custody of plaintiff No.2. After the death of Ningavva, defendant No.1 mutated his name alone in the suit properties and tried to alienate the suit properties to defendant No.2. It is contended that, the suit schedule properties were acquired by the original propositus Jeevappa, and the plaintiffs and defendant No.1 are the members of the Hindu joint family, and no partition is effected between them. The plaintiffs demanded partition and separate possession. Defendant No.1 refused to effect the partition. Hence, a cause of action arose for the plaintiffs to file a suit for the relief of - 5 - NC: 2025:KHC-D:3140-DB RFA No. 100501 of 2022 partition and separate possession. Accordingly, prays to decree the suit. 4. Defendant No.1 filed a written statement contending that the suit schedule properties are the absolute properties of Jeevappa. He was a government employee, and out of his income, he had purchased the suit schedule properties. Defendant No.1 performed the marriage of plaintiff No.1, and at the time of marriage, he has incurred more than Rs.15,00,000/-. Plaintiff No.1 has not led a marital life with her husband and now she is residing in Ranebennur. It is contended that, at the time of marriage of Seeta, their father Jeevappa has sold portion of the suit properties to defendant No.2, the plaintiff No.2 and demand Seeta have already took their share. It is contended that Seeta was married to one Raju Paul, who belongs to the Christian community. Hence, she is not entitled to any share and accordingly, prays to dismiss the suit. - 6 - NC: 2025:KHC-D:3140-DB RFA No. 100501 of 2022 5. The Notice was issued to defendant No.2, it returned with an endorsement that defendant No.2 is no more. Therefore, the son of defendant No.2 i.e., defendant No.3 was brought on record and subsequently, he was placed exparte as he did not appear in pursuant to the suit summons. 6. The trial court, based on the pleadings of the parties, framed the following issues: 1) Whether the plaintiffs prove that, they and defendant No.1 have constituted joint family and suit properties are joint family properties them? 2) Whether the defendant No.1 proves that, his father has got constructed house in Siddeshwar Nagar, Ranebennur in the name of Seeta in lieu of her share in suit properties? 3) Whether the plaintiffs are entitle for the reliefs sought for? 4) What order or decree? - 7 - NC: 2025:KHC-D:3140-DB RFA No. 100501 of 2022 7. The plaintiffs to substantiate their case, plaintiff No.2 was examined as P.W.1, and marked 27 documents as Exs.P1 to P27. On the other hand, defendant No.1 was examined as D.W.1, and no documents were marked on his behalf. The trial Court, after recording the evidence, hearing on both sides, and on assessment of the oral, and the documentary evidence, answered issues Nos.1 and 3 in the affirmative, issue No.2 in the negative, and issue No.4, as per the final order. The suit of the plaintiffs was decreed with costs vide judgment dated 10.11.2021. It is declared that, plaintiff Nos.1 and 2 are entitled to 1/4th share each in the suit properties, plaintiff Nos.3 and 4 are together entitled to 1/4th share, and defendant No.1 is entitled to 1/4th share in the suit properties. At the time of the final decree proceedings, if defendant No.3 appeared, equity can be exercised. Defendant No.1, aggrieved by the judgment and the preliminary decree dated 10.11.2021 passed in O.S.No.87/2019, has filed this Regular First Appeal. - 8 - NC: 2025:KHC-D:3140-DB RFA No. 100501 of 2022 8. Heard the learned counsel for defendant No.1, and the learned counsel for the plaintiffs. 9. Learned counsel for defendant No.1 submits that the suit schedule properties were the self-acquired properties of the propositus Jeevappa. During his lifetime, he had sold a portion of the property in favour of defendant No.2. He submits that the plaintiffs are not entitled to a share in the suit schedule properties. He submits that Seeta was married to one Raju Paul, who belongs to the Christian community. Under the law, once the Hindu woman marries the other caste community person, she is not entitled to any share in the self- acquired properties of Jeevappa. This fact was not properly considered by the trial court. Hence, on these grounds, he prays to allow the appeal. 10. Per contra, learned counsel for the plaintiffs supports the impugned judgment and the preliminary decree passed by the trial court, and accordingly, prays to dismiss the appeal. - 9 - NC: 2025:KHC-D:3140-DB RFA No. 100501 of 2022 11. Perused the records, and considered the submissions made by the learned counsel for the parties. 12. The points, that arise for our consideration are; 1. Whether the plaintiffs and defendant No.1 constitute a joint family, and the suit schedule properties are the joint family properties of the parties to the suit? 2. Whether defendant No.1 proves that the judgment and the preliminary decree passed by the trial court is perverse and arbitrary? 3. What order or decree? Point No.1. 13. It is not in dispute that Jeevappa was the original propositus of the family of the plaintiffs and defendant No.1. Jeevappa had a wife by the name, Ningavva. Jeevappa and Ningavva had four children, i.e., plaintiff Nos.1 and 2, defendant No.1, and one Seeta. Seeta died leaving behind plaintiff Nos.3 and 4. The suit schedule properties were acquired by Jeevappa, who was working as a Government employee. He died leaving - 10 - NC: 2025:KHC-D:3140-DB RFA No. 100501 of 2022 behind the plaintiffs and defendant No.1 as his legal heirs. To substantiate that, the suit schedule properties are the joint family properties of the plaintiffs and defendant No.1, the plaintiffs produced the documents. Exs.P1 and P2 are the RTC extracts of the land bearing Sy.No.822/2A/2 standing in the name of defendant No.1. Ex.P3 is the death certificate of Jeevappa, who passed away on 11.03.1998. Ex.P4 is the death certificate of Ningavva, who passed away on 06.03.2000. Ex.P5 is the death certificate of Seeta, i.e., the mother of plaintiff Nos.3 and 4, who passed away on 27.01.2015. Ex.P6 is the death certificate of Raju Paul, i.e., husband of Seeta, who passed away on 29.12.2009. Ex.P7 is the school leaving certificate of plaintiff No.1, wherein her father’s name is shown as Jeevappa. Ex.P8 is the genealogy tree, which discloses the family of the Jeevappa. Exs.P9 and P10 are the original sale deeds, which disclose that Jeevappa had purchased the properties. Ex.P11 is an affidavit of defendant No.1, stating that Jeevappa died on 11.03.1998, plaintiff Nos.1 and 2 and Seeta are shown as daughters of Jeevappa. - 11 - NC: 2025:KHC-D:3140-DB RFA No. 100501 of 2022 Ex.P12 is the application submitted before the revenue authorities to transfer the properties in the name of the legal heirs of Jeevappa. Ex.P13 is the money paid receipts. Ex.P14 is the property extract of the property bearing No.822/2A/2 standing in the name of defendant No.1. Ex.P15 is the copy of the mutation extract, which discloses that, after the death of Jeevappa, defendant No.1 being the elder male member in the family got transferred the properties in his name. Exs.P16 to P24 are the mutation register extracts. Ex.P25 is the receipt. Ex.P26 is the tax paid receipt for having paid the tax. Ex.P27 is the birth certificate of plaintiff No.4. 14. During the course of cross-examination, it was suggested to P.W.1 by the defendants that, the said properties were purchased by Jeevappa, and he constructed a building over the suit schedule property, and it is his self-acquired property. The said suggestion was admitted by P.W.1. In rebuttal, defendant No.1 was examined as D.W.1. He reiterated the written statement - 12 - NC: 2025:KHC-D:3140-DB RFA No. 100501 of 2022 averments in his examination-in-chief, and no documents were produced by him. In his cross-examination, he admitted that, the house was constructed by plaintiff No.1, out of the income derived from her husband. Further, even if the testimony of plaintiff No.1 is taken into consideration that, the suit schedule properties are the self-acquired properties of Jeevappa, he died intestate, as per Section 8 of the Hindu Succession Act, the plaintiffs being the Class- I heirs are entitled to a share in the suit schedule properties. It is not the defense of defendant No.1 that there was a partition between the plaintiffs and defendant No.1. Defendant No.1 has admitted in his cross- examination that there is no partition effected between the plaintiffs and defendant No.1. The trial court was justified in recording a finding that suit schedule properties are the joint family properties of the plaintiffs and defendant No.1, and they constitute a Hindu joint family, and no partition was effected. The trial court was justified in answering issue No.1 in the affirmative. Based on the above discussion, we answer point No.1 in the affirmative. - 13 - NC: 2025:KHC-D:3140-DB RFA No. 100501 of 2022 Point No.2. 15. The plaintiffs contend that, the suit schedule properties are the joint family properties of the plaintiffs and defendant No.1, and no partition is effected. Defendant No.1 did not produce any documents to show that, the suit schedule properties were owned and possessed by Jeevappa, the plaintiffs and defendant No.1 are the members of Hindu joint family, and no partition is effected. Defendant No.1 in his cross-examination has admitted that there is no partition effected between the plaintiffs and defendant No.1. The said admission of defendant No.1 is sufficient to hold that, there is no partition effected between the plaintiffs and defendant No.1. The trial Court, has rightly passed the impugned judgment and the preliminary decree. We concur with the finding recorded by the trial court. Based on the above discussion, we answer point No.2 in the negative. - 14 - NC: 2025:KHC-D:3140-DB RFA No. 100501 of 2022 Point No.3. 16. In view of the above discussion, we proceed to pass the following; ORDER The Regular First Appeal is dismissed. The impugned judgment and the preliminary decree dated 10.11.2021 passed in O.S.No.87/2019 by the learned I Additional Senior Civil Judge and JMFC, Ranebennur, is hereby confirmed. No order as to the cost. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE MBS CT: BSB List No.: 1 Sl No.: 19