- 1 - NC: 2025:KHC-D:6732-DB RFA No. 100103 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 22ND 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 2022 (PAR/POS) BETWEEN: 1. SHIVALINGAYYA S/O. IRAYYA @ VEERAYYA KARADI AGE: 70 YEARS, OCC: AGRICULTURE, R/O. ALABAL- 587301, TQ: JAMKHANDI, DIST: BAGALKOTE. 2. MADIVALAYYA S/O. SHIVALINGAYYA KARADI AGE: 36 YEARS, OCC: GOVT. SERVICE, R/O. ALABAL- 587301,TQ: JAMKHANDI, DIST: BAGALKOTE. …APPELLANTS (BY SRI. SHRIHARSH A.NEELOPANT, ADVOCATE) AND: 1. SMT. MAHADEVI W/O. SHANTAYYA HIREMATH AGE: 73 YEARS, OCC: HOUSEHOLD WORK, R/O. SHAHAPETE, NEAR MAHADEV TEMPLE, SHAHAPETE, VIJAYAPURA-586101. 2. SMT. SHOBHA W/O. APPAYYA KARADI AGE: 64 YEARS, OCC: HOUSEHOLD WORK, R/O. C/O. GANGAYYA RACHAYYA JADE, AT POST: NEAR KADASIDDESHWAR MATH, YADURU-591213, TQ: CHIKODI, DIST: BELAGAVI. …RESPONDENTS (BY SRI. JAGADISH PATIL & SRI. PRAKASH HOSAMANE, ADVOCATES FOR C/R1; NOTICE TO R2 IS SERVED) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 20.12.2021 PASSED IN O.S.NO.97/2018 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, JAMKHANDI, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.05.03 11:59:42 +0530 - 2 - NC: 2025:KHC-D:6732-DB RFA No. 100103 of 2022 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 defendants Nos.2 and 3, who are assailing the judgment and decree rendered in O.S. No.97/2018 on the file of Prl. Senior Civil Judge and JMFC., Jamkhandi. The suit filed by plaintiff seeking relief of partition and separate possession is decreed granting 1/3rd share to the plaintiff. The said judgment and decree is under challenge. 2. For the sake of convenience, the parties are referred to as per their rank before the trial Court. 3. In the case on hand, there are two family trees, one as indicated in the records and second family tree is also relevant for effective adjudication of the rival claims between the parties and therefore, the family tree reflected in admitted registered partition deed dated - 3 - NC: 2025:KHC-D:6732-DB RFA No. 100103 of 2022 19.6.1967 vide Ex.D1 is also relevant. The family tree furnished by the plaintiff is as under: MADIVALAYYA (Propose it us) Died long back IRAYYA (Died on 2001) HAMPAVVA (Died on 1995) APPAYYA MAHADEVI SHIVALINGAYYA (Deft No.1) (Plaintiff) (Deft. No.2) MADIVALAYYA (Deft.No.3) 4. The family tree indicated in the admitted registered partition deed is as under: ªÀÄrªÁ¼ÀAiÀiÁå (ªÀÄÆ® ¥ÀÄgÀĵÀ) «ÃgÀAiÀiÁå (£ÀA§gÀ 1) ºÀA¥ÀªÁé (»gÉúÉAqÀw) ¸ÀÄUÀίÁ¨Á¬Ä (aPÀ̺ÉAqÀw) D¥ÀàAiÀiÁå (£ÀA§gÀ 2) ²ªÀ°AUÀAiÀiÁå (CeÁÕ£À) ¤AUÀAiÀiÁå PÀ®èAiÀiÁå ¸ÀAUÀAiÀiÁå (F ±ÁSÉAiÀĪÀgÀÄ MAzÀÄ »±ÉAiÀĪÀgÀÄ) (CeÁÕ£ÀgÀÄ) (F ±ÁSÉAiÀĪÀgÉ®ègÀÆ PÀÆr MAzÀÄ »±ÉAiÀĪÀgÀÄ) 5. It is an undisputed fact that the plaintiff, Mahadevi, is the daughter born to Irayya through his first - 4 - NC: 2025:KHC-D:6732-DB RFA No. 100103 of 2022 wife, Hampavva. Irayya had two wives, with Hampavva being the first. Upon the death of Hampavva, Irayya married Suggalabai. Through Hampavva, Irayya had three children,Appayya (defendant No.1), Mahadevi (plaintiff), and Shivalingayya (defendant No.2). 6. Subsequent to Hampavva’s demise, Irayya’s second marriage to Suggalabai resulted in the birth of three sons namely Ningayya, Kallayya, and Sangayya and two daughters. It is pertinent to note that in the registered partition deed, the names of Mahadevi (plaintiff), the daughter through the first wife Hampavva, as well as the two daughters through Suggalabai, are conspicuously absent from the family tree. 7. The present suit has been instituted by the plaintiff seeking partition and separate possession of her share in the suit schedule properties, which were jointly allotted to Appayya and Shivalingayya under the registered partition deed dated 19.07.1967, marked as Ex.D1. The plaintiff’s case is that these properties were - 5 - NC: 2025:KHC-D:6732-DB RFA No. 100103 of 2022 allotted to Appayya, who acted as the Karta of the branch stemming from the first wife, Hampavva. She asserts that she forms part of an undivided Hindu joint family with her brothers, Appayya and Shivalingayya, and hence, is entitled to a 1/3rd share in the properties jointly allotted to them. Although the plaintiff has not specifically pleaded the manner in which the properties were allotted to Appayya and Shivalingayya, she nonetheless seeks a 1/3rd share therein. 8. Upon service of summons, the defendants appeared and filed a written statement, raising the plea of a prior partition. They contend that the suit schedule properties were jointly allotted to Appayya and Shivalingayya, both sons of Hampavva, under a registered partition deed dated 19.07.1967. In paragraph 5 of the written statement, the defendants have provided details of the properties allotted to Irayya, as well as those jointly allotted to defendants No.1 and 2. - 6 - NC: 2025:KHC-D:6732-DB RFA No. 100103 of 2022 9. Both parties have adduced oral and documentary evidence in support of their respective contentions. The trial Court, while answering Issue No.1 in the affirmative, held that the plaintiff has successfully established that she is a member of the undivided Hindu joint family along with defendants No.1 and 2. On Issue No.2, the Court found that defendant No.3 had proved the existence of the second marriage between Irayya and Suggalabai and that they had three sons, Ningayya, Kallayya, and Sangayya and two daughters. In respect of Issue No.3, the Court held that defendant No.3 had successfully established that a partition had indeed taken place under a registered deed dated 19.07.1967. Having concluded that the plaintiff is a coparcener, the trial Court applied the law laid down by the Hon’ble Supreme Court in Vineeta Sharma v. Rakesh Sharma [(2019) 6 SCC 164], and held that the properties jointly allotted to defendants No.1 and 2 were ancestral in nature. Consequently, the plaintiff was held entitled to a 1/3rd share in the said properties, and the suit was accordingly decreed. - 7 - NC: 2025:KHC-D:6732-DB RFA No. 100103 of 2022 10. Heard the learned counsels appearing for defendants No.2, 3 and plaintiff. We have meticulously examined the pleadings averred in the plaint and written statement. We have independently assessed the oral and documentary evidence let in by both the parties. 11. The following points would arise for consideration: i. Whether the Trial Court was justified in granting a 1/3rd share to the plaintiff despite the clear and unambiguous recitals in the registered partition deed dated 19.07.1967, marked as Ex.D1, and whether such a decree contravenes the proviso to Section 6(1) of the Hindu Succession Act, 1956? ii. Whether the Trial Court committed a manifest error in misconstruing the contents and legal effect of the registered partition deed dated 19.07.1967 (Ex.D1), thereby rendering the judgment and decree granting a 1/3rd share to the plaintiff legally untenable and perverse? iii. What order?” - 8 - NC: 2025:KHC-D:6732-DB RFA No. 100103 of 2022 Finding on point No.1 and 2: 12. The defendant has seriously contested the present suit. The original defendant Appayya and defendant No.2 – Shivalingayya placing reliance on the registered partition deed dated 19.07.1967 have furnished the details of the properties that were allotted to their father Irayya and the properties that were jointly allotted to defendant Nos.1 and 2. Para 5 of the written statement elaborates and gives detail of allotment of respective properties. We deem it fit to cull out the particulars of paragraph 5. ”The partition effected as follows: 1) Share allotted to Irayya: A. Northern 5A-39Gts of RS No.45/2 measuring 11A- 39 assessed at Rs.27.80 of village Maigur. B. RS No.150/1 measuring 4A-36G Assessed at Rs.12-80 of village Kankanwadi. C. RS No.151/1 measuring 7A-36G Assessed at Rs.20-15 of village Kankanwadi. D. RS No.25/1 measuring 6A-22G Assessed at Rs.7- 12 of village Hosur. E. RS No.57 measuring 12A-19G Assessed at Rs.27- 60 of village Alabal. F. RS No.15/1B measuring 5A-28G Assessed at Rs.14-20 of village Alabal. G. House property bearing property No.235 of Rabakavi. H. Open space VPC No.529 Alabal. 2) Share allotted to defendant No.1 and 2 jointly: - 9 - NC: 2025:KHC-D:6732-DB RFA No. 100103 of 2022 A. Southern 6A-00G out of RS No.45/2 measuring 11A-39G Assessed at Rs.27-80 of village Maigur. B. RS No.122 measuring 18A-32G Assessed at Rs.49-28 of village Albal.” 13. The plaintiff has instituted the present suit seeking partition solely in respect of the properties that were jointly allotted to her brothers—defendant No.1, Appayya, and defendant No.2, Shivalingayya under the registered partition deed dated 19.07.1967, which is marked as Ex.D1. The plaintiff’s claim proceeds on the assumption that defendants No.1 and 2 represent the branch of the first wife, Hampavva, and therefore, the properties allotted to them under the said partition deed constitute joint family ancestral property belonging to the branch of Hampavva, comprising her two sons Appayya and Shivalingayya and the plaintiff, Mahadevi, as the daughter. 14. However, this foundational assertion made by the plaintiff is wholly misconceived and legally untenable. A careful reading of the registered partition deed dated 19.07.1967 reveals that the properties in question were - 10 - NC: 2025:KHC-D:6732-DB RFA No. 100103 of 2022 not jointly allotted to the branch of the first wife as a coparcenary unit but were specifically and exclusively allotted to defendants No.1 and 2. The plaintiff’s interpretation that the properties were held jointly by the entire branch, inclusive of herself, is factually and legally flawed. 15. As on the date of the said partition, i.e., 19.07.1967, the father of the plaintiff and defendants namely, Irayya was alive and was allotted a significant extent of property in his individual capacity, amounting to approximately 39 acres of agricultural land, along with a residential house and an open space. In contrast, defendants Nos.1 and 2 were jointly allotted 24 acres of land and a residential house. At that point in time, the plaintiff, being a daughter, had no birthright in the joint family property under the prevailing legal regime. Her entitlement, if any, would have been governed by the provisions of the Hindu Succession Act, 1956, particularly - 11 - NC: 2025:KHC-D:6732-DB RFA No. 100103 of 2022 Section 8, which prescribes the manner of succession in the case of a male Hindu dying intestate. 16. Given that the properties were allotted to defendants Nos.1 and 2 under a registered partition deed and that the plaintiff had no pre-existing coparcenary rights at the time, such properties would assume the character of separate properties in the hands of defendants No.1 and 2. Therefore, the plaintiff cannot claim partition in respect of the properties so allotted to her brothers. The suit for partition, in its current form, is unsustainable on two crucial grounds: firstly, the plaintiff had no pre-existing or birthright in the properties at the relevant point of time; and secondly, the properties in question, having been allotted to defendants No.1 and 2 under a valid partition, have since become their separate holdings. 17. In addition to the above reasoning, the maintainability of the suit is further barred by the legal implications of Section 6(1) of the Hindu Succession Act, - 12 - NC: 2025:KHC-D:6732-DB RFA No. 100103 of 2022 1956. The proviso to this section specifically protects and saves partitions effected prior to the amendment, provided they are evidenced by a registered partition deed. The partition in question, having been effected on 19.07.1967 during the lifetime of Irayya and evidenced by a registered deed, squarely falls within the ambit of this proviso. Consequently, the rights of the plaintiff stand excluded in light of this statutory saving, and she cannot now seek partition in respect of properties that were already validly and conclusively partitioned between her father and her brothers. 18. This fundamental aspect namely, the legal sanctity of the 1967 partition and the absence of any coparcenary rights of the plaintiff at that time has not been appropriately considered by the Trial Court. The registered partition deed at Ex.D1 clearly and unequivocally establishes that Irayya retained substantial properties in his own name, totaling approximately 39 acres along with a house property and an open space. The - 13 - NC: 2025:KHC-D:6732-DB RFA No. 100103 of 2022 plaintiff’s allegation that her brothers were allotted properties only in a representative capacity on behalf of the branch of the first wife is entirely baseless and is not borne out by the recitals in the partition deed. The deed explicitly allocates properties to Irayya as the manager of the joint family, with a separate and distinct allotment to defendants No.1 and 2. If at all the plaintiff had any entitlement, it would be confined to a share in the properties retained by Irayya at the time of the 1967 partition, and not in those allotted to defendants No.1 and 2. However, the plaintiff has not chosen to institute proceedings or make any claims in respect of the properties retained by her father. On this count as well, the present partition suit is legally unsustainable. 19. Another noteworthy aspect that emerges from the records is that the registered partition deed does not reflect any family tree, nor does it include the plaintiff or the daughters born through the second wife, Suggalabai. This omission appears to be deliberate and consistent with - 14 - NC: 2025:KHC-D:6732-DB RFA No. 100103 of 2022 the legal understanding at the time that daughters had no coparcenary rights in the joint family property during the lifetime of their father. Hence, they were neither deemed necessary parties to the partition nor were they shown in the recitals. This contextual understanding further reinforces the view that the present suit filed by the plaintiff is based on a legally unsound presumption. 20. In view of the foregoing detailed analysis and legal discussion, the issues framed as Point Nos.1 and 2 are answered in the affirmative. It is held that the plaintiff’s suit seeking partition and claiming a 1/3rd share in the properties allotted to her brothers is not maintainable. The relief sought is squarely hit by the proviso to Section 6(1) of the Hindu Succession Act, 1956. The plaintiff is not entitled to seek partition in respect of properties which were already partitioned and allotted to defendants No.1 and 2 under a registered deed during the lifetime of the father, Irayya. However, this Court deems it appropriate to clarify that the plaintiff is at liberty to seek - 15 - NC: 2025:KHC-D:6732-DB RFA No. 100103 of 2022 her legitimate share by way of inheritance in the properties retained by Irayya, which are enumerated in para 5(1) of the written statement, and which have been extracted in paragraph 12 above. Since the right to seek partition arises as a recurring cause of action, the plaintiff may initiate appropriate proceedings, if so advised, in accordance with law. 21. It is evident that the Trial Court has committed a serious error in its appreciation and interpretation of the registered partition deed dated 19.07.1967, marked as Ex.D1. The Trial Court failed to recognize the legal character and effect of the said partition, particularly overlooking the fact that defendants No.1 and 2, being male coparceners, were allotted specific properties under the said deed in their individual and joint capacities. The recitals in the partition deed unambiguously demonstrate that the properties listed therein were distributed among Irayya and his two sons in a definitive and binding manner, with no indication whatsoever that the properties - 16 - NC: 2025:KHC-D:6732-DB RFA No. 100103 of 2022 allotted to the sons were held by them on behalf of any larger coparcenary branch or for the benefit of the plaintiff. By misconstruing the deed to suggest that the allotment to defendants No.1 and 2 was representative of the joint family property of the first wife’s branch, the Trial Court has not only misconceived the scope of the deed but has also ignored settled principles of Hindu law which recognize that, post-partition, properties so allotted to male coparceners assume the status of their separate property. Consequently, upon the demise of Irayya, the plaintiff cannot assert any claim over properties that had already been partitioned and vested in her brothers under a valid and registered partition. The Trial Court's reasoning effectively nullifies the legal finality attached to the registered deed and erroneously revives a coparcenary status that had ceased to exist upon partition, a view wholly inconsistent with the statutory framework under the Hindu Succession Act, 1956, and binding judicial precedents. Accordingly, point No.1 is answered in Negative and point No.2 in the affirmative. - 17 - NC: 2025:KHC-D:6732-DB RFA No. 100103 of 2022 22. With these observations, this Court proceed to pass the following: ORDER (i) Appeal is allowed. (ii) The judgment and decree passed in O.S. No.97/2018 granting 1/3rd share is hereby set aside. Suit is accordingly dismissed. (iii) However, liberty is reserved to plaintiff to seek partition in respect of properties allotted to Irayya in the manner known to law. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE AM & RSH / Ct:vh List No.: 1 Sl No.: 19