- 1 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 11TH 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.100199 OF 2019 (DEC/PAR) BETWEEN: BASAPPA S/O BHIMAPPA GHODASE SINCE DECEASED BY HIS LRS., 1. SMT. MAHADEVI W/O BASAPPA GHODASE AGE: 65 YEARS, OCC: HOUSEHOLD WORK, R/O: HOSA KUMBAR ONI, KAMALAPUR, TQ: DIST: DHARWAD -580007. 2. RAVI S/O BASAPPA GHODASE AGE: 43 YEARS, OCC: AGRICULTURE, R/O: HOSA KUMBAR ONI, KAMALAPUR, TQ: DIST: DHARWAD -580007. 3. SMT. LALITA W/O PANDIT MANE AGE: 40 YEARS, OCC: HOUSEHOLD WORK, R/O: MUDHOL-587313, TQ: DIST: BAGALKOT. SUNIL S/O BASAPPA GHODASE SINCE DECEASED BY HIS LRS., 4. SMT. YASHODA W/O SUNIL GHODASE AGE. 35 YEARS, OCC: HOUSEHOLD WORK, R/O: HOSA KUMBAR ONI, KAMALAPUR, TQ: DIST: DHARWAD – 580007. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.03.01 11:18:17 +0530 - 2 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 5. KUMARI SAMIKSHA D/O SUNIL GHODASE REPT. BY SMT. YASHODA W/O SUNIL GHODASE AGE. 13 YEARS, OCC: NIL, R/O: HOSA KUMBAR ONI, KAMALAPUR, TQ: DIST: DHARWAD -580007. 6. KUMARI SUPIKSHA D/O SUNIL GHODASE REPT. BY SMT. YASHODA W/O SUNIL GHODASE AGE. 10 YEARS, OCC: NIL, R/O: HOSA KUMBAR ONI, KAMALAPUR, TQ: DIST: DHARWAD -580007. 7. KUMARI SURAKSHA D/O SUNIL GHODASE REPT. BY SMT. YASHODA W/O SUNIL GHODASE AGE. 08 YEARS, OCC: NIL, R/O: HOSA KUMBAR ONI, KAMALAPUR, TQ: DIST: DHARWAD -580007. 8. SMT. YAMUNA W/O PARASHURAM KATENNAVAR AGE 34 YEARS, OCC: HOUSEHOLD WORK, R/O: DODAWAD, TQ: BAILHONGAL- 591104. NOTE: APPELLANT NOS.5 TO 7 ARE MINORS, REP BY THEIR NATURAL GUARDIAN MOTHER APPELLANT NO.4. …PETITIONERS (BY SRI. SHIVASAI M PATIL, ADV) AND: 1. SMT. AKKAVVA W/O YALLAPPA GHODASE AGE: 63 YEARS, OCC: HOUSEHOLD WORK, R/O: HOSA KUMBAR ONI, KAMALAPUR, TQ: DIST: DHARWAD -580007. - 3 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 2. SHIVAJI S/O BHIMAPPA GODASE AGE: 60 YEARS, OCC: SERVICE, R/O: HOSA KUMBAR ONI, KAMALAPUR, TQ: DIST: DHARWAD -580007. 3. SMT. GEETA W/O SANGAMESH INGALAHALLI AGE: 38 YEARS, OCC: HOUSEHOLD WORK, R/O: SATTUR 580009, TQ: DIST: DHARWAD. …RESPONDENTS (BY SRI. RAJA RAGHAVENDRA NAIK AND SRI. SRINIVAS NADAMANI, ADVS FOR R1 & R3 SRI. M.C. HUKKERI, ADV FOR R2) ------ THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DATED 20.03.2019 PASSED IN O.S.NO.280/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, DHARWAD, DISMISSING THE SUIT FILED FOR DECLARATION AND PARTITION. 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 - 4 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellants, challenging the judgment and decree dated 20.03.2019 passed in O.S.No.280/2014 by the learned Principal Senior Civil Judge and CJM, Dharwad. 2. For convenience, the parties are referred to, based on their rankings, before the trial Court. The Appellants were the legal representatives of the deceased plaintiff and the respondents were the defendants. 3. Brief facts, leading rise to the filing of this Regular First Appeal, are as follows: The plaintiffs have filed a suit against the defendants for the relief of declaration, partition, and separate possession regarding the suit schedule properties. It is the case of the plaintiffs that, the deceased plaintiff, Basappa, and defendants No.1 and 2 are the members of a Hindu joint family. The husband of defendant No.1 by - 5 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 the name Yallappa, was the kartha of the joint family. The suit schedule properties were inherited by the deceased Yallappa from his mother’s side. According to him, they are his ancestral properties. From 1965 onwards, till the date of filing of the present suit, the suit schedule properties were in joint possession of the plaintiffs and defendants. Defendant No.2, being the brother of the deceased plaintiff, who was a Government employee, taking advantage of the fact that, the deceased plaintiff is a drunkard, and encashing his drawback, got executed a registered relinquishment deed in his favour, by promising that he would financially help the deceased plaintiff, regarding the land bearing R.S.No.98/2 measuring 8 acres 9 guntas of Halligeri village. It is contended by the deceased plaintiff that, it was projected by defendant No.2 to him that, the documents executed by the deceased plaintiff is a mortgage deed, wherein defendant no.2 would enjoy the property for a period of 10 years, by also making use of usufructs and then, will have to then reconvey the property to the deceased plaintiff. It was a - 6 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 false projection on the part of defendant no.2. Defendant No.2 concocted the document dated 17.2.2004. The deceased plaintiff’s wife met defendant No.2, and requested him to return the agricultural land. Though, defendant No.2 promised that, he would reconvey the agricultural land, but went on postponing on one or the other pretext. The deceased plaintiff had no occasion to execute a relinquishment deed regarding the property in favour of defendant No.2. Defendant No.2, to deprive the legitimate share of the deceased plaintiff over the property, and also taking advantage of the fact that the deceased plaintiff is a drunkard and is illiterate, duped him. Defendant no.2 refused to execute the reconveyance deed regarding the land in R.S No.98/2. Hence, a cause of action arose for the deceased plaintiff to file a suit for declaration, partition, and separate possession. Accordingly, prays to decree the suit. 3.1 Defendant No.1 filed a written statement denying the averments made in the plaint. It is contended that, - 7 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 the suit filed by the deceased plaintiff is not maintainable and the same is barred by limitation. It is contended that the description of the suit properties shown in the plaint is incorrect, and also the genealogy furnished by the plaintiff is incorrect and misleading. Hence, prays to dismiss the suit against defendant No.1. 3.2. Defendant No.2 filed a written statement contending that, some of the items of the suit schedule properties were inherited by Yallappa from his mother’s end. It is contended that, there was a partition effected between the plaintiffs and defendant No.2 as per ‘afasath watni’ in 1965. The respective parties were put in possession of their immovable properties. It is denied that, the deceased plaintiff was a drunkard, and defendant No.2 taking advantage executed a registered relinquishment deed in his favour. It is contended that, in 2004 itself, the deceased plaintiff executed a relinquishment deed, and the same was registered. Defendant No.2 became the absolute owner of the - 8 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 property in R.S.No.98/2. It is contended that after ‘afasath watni’, insofar as the ‘B’ schedule property is concerned, the deceased plaintiff had sold 1/3rd share in favour of Sahadevappa Chandrappa Melasagi, resident of Halligeri village on 10.01.2003 under a registered sale deed, and the deceased plaintiff had also entered into another oral partition regarding VPC No.109 of Halligeri village, and got the revenue entries effected in the name of the deceased plaintiff, and sold the said vacant site to one Sri Akkava w/o.Maruthi Gulenavar under registered sale deed dated 15.04.2009. The deceased plaintiff has also obtained a loan from K.V.G.Bank, Nigadi Branch in 2008-09. The deceased plaintiff has suppressed regarding the oral partition effected in 1965. It is contended that the suit filed by the deceased plaintiff for partition and separate possession is not maintainable. Hence, on these grounds, prays to dismiss the suit. 3.3. The trial Court, based on the pleadings of the parties, framed the issues and an additional issue. - 9 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 3.4. The deceased plaintiff to substantiate his case examined two witnesses as PWs.1 and 2, and marked 12 documents as exhibits P.1 to P.12. On the other hand, defendant No.2 was examined as DW.1, examined two other witness as DW.2 & DW.3 and marked 10 documents as exhibits D.1 to D.10. After recording the evidence, hearing on both sides, and on the assessment of oral and documentary evidence, the trial Court answered issues No.1 to 3, and 5 in the negative, issue No.4 partly in the affirmative, additional issue No.1 in the affirmative and issue No.6 as per the final order. The suit of the deceased plaintiff was dismissed with cost vide judgment dated 20.3.2019. The LRs of the deceased plaintiff, aggrieved by the judgment and decree passed in O.S.No.280/2014, have filed this Regular First Appeal. 4. Heard learned counsel for the plaintiffs, and the learned counsel for the defendants. 5. Learned counsel for the plaintiffs submits that defendant No.2 by playing fraud on the deceased plaintiff - 10 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 executed a registered relinquishment deed. He submits that, defendant No.2 projected to the deceased plaintiff stating that, it is a mortgage deed, and it would be reconveyed after 10 years. He further submits that, there was no oral partition which was alleged to have took place in 1965. The finding recorded by the trial Court that there was an oral partition in 1965 is incorrect. Hence, the impugned judgment is arbitrary and erroneous. Accordingly, prays to allow the appeal. 6. Per contra, learned counsel for defendant No.2 submits that the suit filed by the deceased plaintiff is barred by limitation. He submitted that the relinquishment deed was executed on 17.2.2004 by the deceased plaintiff in favour of defendant No.2, and the suit is filed in 2014. As per Article 58 of the Limitation Act, 1963, the suit for declaration is to be filed within 3 years from the date of knowledge. He submits that, there was an oral partition between the deceased plaintiff and the defendants in 1965 regarding the properties fell to the share of the deceased - 11 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 plaintiff, he had sold the property in favour of Akkavva i.e., VPC No.105 of Halligeri village, in respect of the vacant site and the plaintiff has sold his 1/3rd share in ‘B’ schedule properties to one Sahadevappa Chandrappa Melasagi, President of Halligeri village, on 10.1.2023. There was no severance of status. He also submits that, the plaintiffs i.e., PWs.1 and 2, have admitted regarding the oral partition effected in 1965 during the life time of Yallappa. The trial Court, considering the admission of PWs.1 and 2 has rightly held that, the suit for partition and separate possession is not maintainable, and rightly dismissed the suit. The judgment and preliminary decree passed by the trial Court is just and proper, and do not call for any interference. Accordingly, prays to dismiss the appeal. 7. Perused the records, and considered the submissions of the learned counsel for the parties. 8. The points, that arise for our consideration are :- 1. Whether the plaintiffs prove that the suit schedule properties are the joint family properties of the plaintiffs and defendants? - 12 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 2. Whether the plaintiffs prove that defendant No.2, taking due advantage of the deceased plaintiff being a drunkard, executed a registered relinquishment deed? 3. Whether defendant No.2 prove that the suit filed by the plaintiffs in barred by limitation? 4. Whether defendant No.2 prove that there was already a partition that took place between the plaintiffs and defendants over the suit schedule properties? 5. Whether the LR’s of the deceased plaintiff prove that the judgment and decree passed by the trial Court is perverse, arbitrary, and erroneous? 6. What order or decree? Re.point No.1 & 4 : 9. As point No.1 & 4 are interlinked with each other, they are taken few common discussion, to avoid the repetition of facts. The deceased plaintiff examined the power of attorney holder as PW.1 and subsequently the plaintiff (Basappa) died. The wife of the deceased plaintiff was examined as PW.2. She reiterated the plaint averments in the examination-in-chief. The LRs of the deceased plaintiff have produced the documents. Exhibits P.1 is the general power of attorney which discloses that the deceased plaintiff had executed power of attorney in favour of PW.1 - 13 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 authorizing her to depose on his behalf. Ex.P.2 is the certified copy of the relinquishment deed which discloses that the deceased plaintiff executed a relinquishment deed in favour of defendant No.2 relinquishing his right regarding the land R.S.No.98/2. Exhibits P.3 to P.6 are the RTC extracts, Ex.P.7 is the mutation extract, Ex.P.8 is the RTC extract, Ex.P.9 is the general power of attorney, and Exs.P.10 to P.12 are the property register cards. 9.1. During the course of cross examination, PW.1, the power of attorney of the deceased plaintiff, has admitted regarding an oral partition in 1965, and also admitted that the deceased plaintiff has executed a registered sale deed in favour of Sahadevappa Chandrappa Melasagi regarding the ‘B’ schedule properties and also an open vacant site to one Akkavva under registered sale deed dated 15.4.2009. Further, the deceased plaintiff has also obtained a loan by mortgaging the properties allotted to his share from KVG Bank in 2008-09. 9.2. In rebuttal, defendant No.2 was examined as DW.1. He has reiterated the written statement averments - 14 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 in the examination-in-chief, and he deposed that, there was an oral partition between the deceased plaintiff, and defendants during the life time of Yallappa, and parties have acted upon. Based on the oral partition, the name of the respective parties were mutated in the revenue records. He also deposed that, the deceased plaintiff has sold the property, which fell to his share, i.e., ‘B’ schedule properties and open site VPC No.109 of Halligeri Village, and further, to prove the defense of the defendants, the defendants have produced a certified copy of the RTC extracts marked as exhibits D.1 to D.4, Exs.D.5 to D.7 are the property register cards, which disclose that based on the oral partition, name of the respective parties were entered in the records, survey records and the revenue records. Exhibit D.8 is the agreement of sale, Ex.D.9 is the registered sale deed which discloses that the deceased plaintiff has sold the property, Ex.D.10 is the original registered relinquishment deed. The defendants have also examined two witnesses as DWs.2 and 3, who have deposed that, there was a partition between the deceased - 15 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 plaintiff and defendants in 1997 and further, DW.2 is the relative of the plaintiffs, and the defendants, and he has deposed that, there was a oral partition that took place in 1997. The deceased plaintiff has not denied the said fact during the course of cross examination. Admittedly, the suit schedule properties were owned, and possessed by Yallappa. From the perusal of the records, it is apparent that there was an oral partition between the plaintiffs and the defendants, and further, the deceased plaintiff during his life time, has sold ‘B’ schedule properties fallen to his share in favour of Sahadevappa Chandrappa Melasagi, resident of Halligeri village, and also sold a vacant site VPC No.105 of Halligeri village in favour of Smt.Akkavva w/o.Maruthi Gulenavar under registered sale deeds dated 10.01.2003 and 17.02.2004, respectively. The plaintiff has not explained regarding the fact that, if there was no partition between the plaintiffs and defendants, how come the deceased plaintiff sold ‘B’ schedule properties and an open site VPC No.109. Further, PW.2 i.e. the wife of the deceased plaintiff and power of attorney holder of the - 16 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 deceased plaintiff has admitted that the plaintiff has taken a share through an oral family partition. The admission of PWs.1 and 2 is sufficient to hold that, there was an oral partition between the plaintiffs and defendants. When there was an oral partition between the plaintiffs and defendants, the said oral partition is valid and by the same there was a division effected and as a result, the properties were enjoyed separately by the individual sharers. The Hon’ble Apex Court in the case of Digambar Adhar Patil V. Devram Girdhar Patil (dead) (AIR 1995 SC 1728), held that, “the entries in the revenue records regarding the faction of partition is a relevant piece of documentary evidence in support of the oral evidence. Admittedly, in the instant care the faction of partition is corroborated by the oral evidence of PW.1.” As of the date of suit, the suit schedule properties were not the joint family properties and there was a severance of status. The plaintiff has failed to prove that - 17 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 the suit schedule properties are the joint family properties of the plaintiff and defendants. On the other hand, defendant No.2 has proved that there was already a partition that took place between the plaintiffs, and defendants, and as per the division, sharers are enjoying the properties separately. In view of the above discussion, we answer point No.1 in the negative and point No.4 in the affirmative. Re.Point No.2 10. It is the case of the plaintiffs that, the deceased plaintiff is a drunkard and defendant No.2, taking advantage of the fact that the deceased plaintiff was illiterate and projecting that, it is a loan transaction and the document to be executed by the deceased plaintiff is a mortgage deed, and that defendant No.2 would enjoy the property for a period of 10 years by also making use of the usufructs, and then he would have to reconvey the property in favour of the deceased plaintiff, got executed a registered relinquishment deed instead of a mortgage - 18 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 deed. Defendant No.2 has committed a fraud on the plaintiff. 10.1. From the perusal of the contents of the plaint, the plaintiff has not stated the particulars of fraud or misrepresentation as per Order VI Rule 4 of CPC. There is no pleading regarding particulars of fraud in the plaint. In the absence of pleadings regarding the particulars of fraud, the plaintiff has failed to prove that defendant No.2 had played fraud on the deceased plaintiff. Admittedly, R.S No.98/2 was fallen to the share of the deceased plaintiff and he relinquished his right in favour of defendant No.2 by executing a registered relinquishment deed on 17.2.2004. The deceased plaintiff was well aware of the execution of the registered relinquishment deed and despite knowing the fact that he had executed a relinquishment deed, the deceased plaintiff did not challenge the registered relinquishment deed within 3 years of execution of the relinquishment deed. Even in the instant case, no prayer has been made challenging the - 19 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 cancellation of the relinquishment deed. Unless the registered relinquishment deed is cancelled, as per Section 31 of the Specific Relief Act, 1963 the plaintiff has no locus to claim that, he is the absolute owner of the land in R.S.No.98/2. The deceased plaintiff has also not examined any attesting witnesses to Ex.D.10 i.e., relinquishment deed, to prove that, the fraud has been played on the plaintiff. Except the oral testimony of PW.1 and PW.2, the plaintiffs have not placed any material on record to establish that defendant No.2 has committed a fraud, and executed a registered relinquishment deed. There is no presumption regarding the registered instrument. The trial Court, drawing the presumption regarding the registered instrument, has held that defendant No.2 has proved that the deceased plaintiff has executed a registered relinquishment deed relinquishing his right in favour of defendant No.2. 10.2. Defendant No.2 has proved the execution of the registered relinquishment deed by the deceased plaintiff in - 20 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 his favour. Though, the deceased plaintiff has contended that, he is a drunkard, he himself has filed a suit after the lapse of 10 years from the date of execution of the registered relinquishment deed. 10.3. We hold that defendant No.2 has not committed fraud on the deceased plaintiff, and executed the registered relinquishment deed. If at all, as alleged by the deceased plaintiff, it is a loan transaction, the deceased plaintiff would have offered the alleged loan amount to defendant No.2. Further, Ex.D.10 is the registered instrument. The oral evidence is inadmissible in evidence. Sections 91 and 92 of the Indian Evidence Act, 1872 enumerate that any amount of oral evidence, to vary or contradict the terms and conditions of the instrument, is impermissible. Any amount of evidence of PW.1 (as a GPA of the deceased plaintiff) during his life time, and PW.2 (as LRs of the deceased plaintiff after his death) to contradict the contents of Ex.D.10 is impermissible. Hence, in view - 21 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 of the above discussion, we answer point No.2 in the negative. Re.Point No.3. 11. Admittedly, the deceased plaintiff executed the registered relinquishment deed on 17.2.2004, regarding the land in R.S.No.98/2. The plaintiff was aware of the execution of the registered relinquishment deed, and further, the legal representatives of the deceased plaintiff were also aware of the registration of the relinquishment deed. Section 3 of the Transfer of Property Act, 1882 is a notice to the whole world. The LR’s of deceased plaintiff did not challenge the registered relinquishment deed, even in the instant suit. The present suit is filed on 14.7.2014. The relinquishment deed was executed on 17.02.2004. The plaintiff ought to have filed a suit within 3 years as per Article 58 of the Limitation Act. Admittedly, the said document was executed on 17.02.2004 and cause of action arose after the execution of the registered relinquishment deed. The plaintiff has not filed the suit - 22 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 within three years. The suit filed by the plaintiff is barred by limitation. That the right to sue first accrues, even in this case. At the cost of repetition, the deceased plaintiff has not sought the relief of declaration of cancellation of the registered relinquishment deed. Hence, the suit filed by the plaintiffs is barred by limitation. In view of the above discussion, we answer point No.3 in the negative. Re.Point No.5 12. The trial Court, on the admission of PWs.1 and 2 regarding an oral partition, and execution of registered relinquishment deed as per Ex.D.10 by the deceased plaintiff in favour of defendant No.2, has held that there was a prior partition between the deceased plaintiff and defendants. The suit schedule properties, as on the date of filing the suit, were not joint family properties, and there was severance of status. The trial Court was justified in dismissing the suit holding that the mere suit for partition and separate possession, without seeking the relief of cancellation of the registered relinquishment deed, - 23 - NC: 2025:KHC-D:2868-DB RFA No. 100199 of 2019 is not maintainable. Hence, we do not find any error in the impugned judgment. We concur with the judgment passed by the trial Court. Accordingly, we answer point No.5 in the negative. Re. Point No.6 13. As we have already answered points No.1 to 5 in favour of the defendants, we proceed to pass the following order : ORDER i) The Appeal is dismissed. ii) The judgment and preliminary decree dated 23.03.2019 passed by the trial Court hereby is confirmed. No order as to the costs. Pending applications, if any, stands disposed of. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE rs