- 1 - NC: 2025:KHC-D:5544-DB RFA No. 100218 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 26TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO. 100218 OF 2019 (PAR/POS) BETWEEN: 1. SHRI. MANJUNATH, S/O. LAXMAN VERNEKAR AGE: 45 YEARS, OCC: GOLDSMITH R/O: SAMARTH APARTMENT, F-1, FIRST FLOOR, SHARAF GALLI, BELAGAVI, PINCODE-590003. 2. SMT. SUVARNA @ TANVI, W/O. SUDHIR RAIKAR AGE: 40 YEARS, OCC: HOUSE HOLD WORKS R/O: SAMBAJI GALLI, VADAGAON BELAGAVI, PINCODE 590005. …APPELLANTS (BY SRI. VITTHAL S. TELI, ADVOCATE) VISHAL NINGAPPA PATTIHAL Digitally signed by VISHAL NINGAPPA PATTIHAL Location: HIGH COURT OF KARNATAKA Date: 2025.04.04 12:31:44 +0530 - 2 - NC: 2025:KHC-D:5544-DB RFA No. 100218 of 2019 AND: 1. SHRI. NAGARAJ, S/O. LAXMAN VERNEKAR AGE: 44 YEARS, OCC: GOLDSMITH, R/O: BHICHU GALLI, SHAHAPUR, BELAGAVI PIN CODE 590003. 2. SMT. NANDINI W/O. NARAYAN RAIKAR AGE: 54 YEARS, OCC: HOUSE HOLD WORKS R/O: SIDDALINGESWAR COLONY, VIKAS NAGAR, HUBBALLI, PIN CODE 580021. …RESPONDENTS (BY SRI. SHADAB H. YADAWAD, ADVOCATE) THIS RFA IS FILED UNDER ORDER 41 RULES 1 R/W. SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.02.2019 PASSED IN O.S.NO.231/2016 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, BELAGAVI, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION AND DECLARATION. THIS APPEAL, 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 - 3 - NC: 2025:KHC-D:5544-DB RFA No. 100218 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) The captioned appeal is by the plaintiffs who are aggrieved by the dismissal of the suit filed in O.S. No.231/2016 seeking leave for partition and separate possession. The said judgment is under challenge. 2. For sake of convenience, the parties are referred to as per their rank before the trial Court. 3. The family tree is as under: Nagesh-Propositus [died in or about 2004] [Laxmi wife of Nagesh] [died in or about 2008] Manjunath Nagaraj Lata & Nandini Survana @ Tanvi Plaintiff No.1 Deft.No.1 Deft.No.2 Plaintiff No.2 4. The plaintiffs and defendants are the children of one Laxmi W/o. Nagesh. The plaintiffs contended that the suit schedule property was jointly purchased by the parents and later father released his share in favour of his wife namely Laxmi. The plaintiffs assert that the plaintiff - 4 - NC: 2025:KHC-D:5544-DB RFA No. 100218 of 2019 No.1 and defendant No.1 are residing in the suit schedule property. The present suit is filed alleging defendant No.1 taking undue advantage of ill-health of his mother has created Will without her knowledge and therefore, present suit is filed contending that the Will concocted document set up by the defendant No.1 and plaintiffs being legal heir of Laxmi are entitled for the legitimate share in the suit schedule property. 5. Defendants on receipt of summons, failed to contest the suit by filing written statement, though I.A. was filed seeking leave of the Court to file written statement the said application was rejected. 6. The Trial Court having examined the oral and documentary evidence let in by the defendants, however, non-suited plaintiffs on the ground that plaintiffs have not challenged the release deed dated 08.10.2004 within time and the trial Court was also of the view that since Will is dated 10.07.2006, the plaintiffs’ suit filed in 2016 is barred - 5 - NC: 2025:KHC-D:5544-DB RFA No. 100218 of 2019 by limitation. Consequently, the trial Court has proceeded to dismiss the suit. The said judgment is under challenge. 7. Heard the learned counsel for the plaintiffs and leaned counsel for the defendants. Following point that would arise for our consideration is: “Whether the findings of the trial Court that the plaintiffs’ suit is barred by limitation is perverse, palpably erroneous and contrary to law and therefore, warrants interference in the hands of this Court?. 8. Before we delve into the case on hand, we deem it fit to cull out the prayer column which reads as under: i] To call for records in O.S.No.231/2016 of the file of the Hon’be 3rd Additional Senior Civil Judge Belagavi. ii] To set aside the judgment and decree passed by the Hon’ble 3rd Additional Senior Civil Judge Belagavi in O.S.No.231/2016 dated 28/02/2019 by allowing this appeal and this Hon’ble Court may please to grant share to the appellants in the suit property. - 6 - NC: 2025:KHC-D:5544-DB RFA No. 100218 of 2019 iii] Other relief/s as this Hon’ble Court deems fit, in the interest of justice and equity. 9. Upon a thorough examination of the prayer extracted supra, it becomes evident that the plaintiffs have been ill-advised in challenging the release deed, which appears to be an unwarranted move. The release deed in question, dated 08.10.2004, was executed by the plaintiffs’ father in favour of their mother, Laxmi. However, when the plaint is read in its entirety, it is clear that the plaintiffs are asserting their rights and title through their mother, Laxmi. The records unmistakably indicate that the suit schedule properties were originally acquired jointly by both the plaintiffs’ father and mother. Subsequently, the plaintiffs’ father, through a registered release deed dated 08.10.2004, relinquished his share in favour of the plaintiffs’ mother. This act conferred upon her the absolute ownership of the entire extent of the suit schedule properties. Therefore, the plaintiffs’ decision to question the validity of the release deed is both legally - 7 - NC: 2025:KHC-D:5544-DB RFA No. 100218 of 2019 untenable and unnecessary, as their claim is fundamentally based on their mother’s ownership rights. 10. It appears that the primary intention of the plaintiffs in filing the suit was to seek a declaration that the Will, allegedly executed on 10.07.2006 by their mother in favour of defendant No.1, is not binding upon their legitimate share in the suit schedule properties. However, in doing so, the plaintiffs seem to have also extended their challenge to the release deed, which is legally incongruous with their claim. Their rights, if any, in the suit schedule properties, stem from their parents—both their father and mother. Since their father had already executed a registered release deed in favour of their mother, she had acquired absolute title to the properties. Upon her demise, the plaintiffs’ claim to the property would only be through her, and not through any contestation of the father’s release deed. Thus, the plaintiffs’ challenge to the release deed is misplaced and unnecessary in the context of their claim for partition. - 8 - NC: 2025:KHC-D:5544-DB RFA No. 100218 of 2019 11. Furthermore, the plaintiffs have now, through an application filed under Order LXI Rule 27 of the Civil Procedure Code (CPC), submitted additional documents, including the order sheet in O.S. No.738/2016. This suit was initiated by defendant No.1, who sought to establish title based on the Will allegedly executed by the plaintiffs’ mother. However, this suit was dismissed for non- prosecution. The dismissal of O.S. No.738/2016 indicates that the claim of defendant No.1, which is predicated upon the Will, has not been conclusively adjudicated in his favour. This development strengthens the plaintiffs’ case, as the failure of defendant No.1 to prosecute his claim raises serious doubts regarding the authenticity and enforceability of the alleged Will. 12. In light of the admitted factual matrix, it becomes clear that since Laxmi passed away intestate, the properties left behind by her would devolve upon her legal heirs in accordance with Section 15 of the Hindu Succession Act, 1956. Her children, being Class-I heirs - 9 - NC: 2025:KHC-D:5544-DB RFA No. 100218 of 2019 under the said Act, are entitled to inherit the suit schedule properties in equal shares. The only impediment to their claim would arise if defendant No.1 successfully revives O.S. No.738/2016 and establishes the validity of the Will in question. Unless such a revival takes place, the plaintiffs’ right to seek partition through their mother remains intact. The right to seek partition is a recurring cause of action, and therefore, the plea of limitation is wholly inapplicable to the present case. Furthermore, the defendants have not contended that defendant No.1 had ousted the plaintiffs or other co-sharers from joint possession of the suit schedule properties, further reinforcing the plaintiffs’ claim. 13. The trial Court, in its judgment, failed to properly examine the fundamental principles governing the rights of sons and daughters in the properties left behind by a Hindu woman. Instead, it erroneously applied the principles of limitation, leading to an unjustified dismissal of the plaintiffs’ suit. The trial Court’s finding - 10 - NC: 2025:KHC-D:5544-DB RFA No. 100218 of 2019 that the plaintiffs’ suit is barred by limitation, on the premise that the Will was executed in 2006, is patently flawed, perverse, and contrary to well-settled legal principles. It is a well-established principle of law that in a partition suit, the right to seek partition is a recurring cause of action. Consequently, limitation does not operate as a bar, particularly in cases where the properties left behind by a Hindu woman remain intact and are available for partition among her legal heirs. The plaintiffs, therefore, cannot be non-suited merely on the ground of limitation. 14. At this juncture, learned counsel for the defendants has requested that the defendants be permitted to file a written statement and contest the suit. Since this Court is inclined to remit the matter back for reconsideration, it would be just and proper to permit the defendants to contest the suit by filing their written statement. In light of the above discussion, we find merit in the plaintiffs’ claim and accordingly answer the point - 11 - NC: 2025:KHC-D:5544-DB RFA No. 100218 of 2019 formulated in the affirmative. The matter is remitted back to the trial Court for fresh adjudication, with an opportunity extended to the defendants to file their written statement and present their case in accordance with the law. CONCLUSION: 15. This Court finds that the trial Court erred in dismissing the plaintiffs' suit on the ground of limitation without properly appreciating the principles governing partition suits. The trial Court failed to recognize that the plaintiffs’ right to seek partition is a recurring cause of action, and such a right cannot be extinguished merely on the basis of an alleged Will that has not been conclusively established in favour of defendant No.1. 16. Furthermore, the trial Court overlooked the fact that Laxmi, having acquired absolute ownership of the suit schedule properties through a registered release deed, passed away intestate, thereby allowing the properties to - 12 - NC: 2025:KHC-D:5544-DB RFA No. 100218 of 2019 devolve upon her legal heirs under Section 15 of the Hindu Succession Act. The dismissal of O.S. No.738/2016, which was based on the Will, further weakens the defense set up by defendant No.1 and reinforces the plaintiffs' entitlement to seek partition. 17. The erroneous application of the law of limitation has resulted in a manifest miscarriage of justice, as it effectively deprived the plaintiffs of their legitimate claim without a fair adjudication on merits. Given that the suit schedule properties are intact and available for partition, the plaintiffs’ right to inherit and claim their rightful share remains unaffected by any limitation period. 18. Therefore, in the interest of justice, equity, and fairness, the impugned judgment of the trial Court is set aside, and the matter is remitted back for reconsideration. The defendants are granted liberty to file their written statement and contest the suit. The trial Court is directed to adjudicate the matter afresh, taking into account the settled principles of Hindu succession law and partition - 13 - NC: 2025:KHC-D:5544-DB RFA No. 100218 of 2019 jurisprudence. Accordingly, the point formulated above is answered in the affirmative. 19. Accordingly, the appeal is allowed, and the suit is restored for further proceedings before the trial Court in accordance with law. 20. For the forgoing reasons, we proceed to pass the following: ORDER i) The appeal is allowed. ii) The impugned order dated 28.02.2019 passed in O.S. No.231/2016 by the III Additional Senior Civil Judge, Belagavi is hereby set aside. iii) The matter stands remitted back to the trial Court for fresh enquiry. iv) Since the parties are represented by their respective counsel, without expecting any further summons, they are directed to appear before the trial Court on 28.04.2025. - 14 - NC: 2025:KHC-D:5544-DB RFA No. 100218 of 2019 v) Liberty is reserved to the defendants to file written statement, if any. vi) Liberty is also reserved to the plaintiffs to produce the additional documents before the trial Court. Accordingly, I.A. No.1/2019 stands disposed of. vii) Draw decree accordingly. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE RSH & MBS / Ct-cmu LIST NO.: 1 SL NO.: 18