- 1 - NC: 2025:KHC-D:6731-DB RFA No. 100471 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. 100471 OF 2022 (PAR/POS) BETWEEN: 1. SURESH REDDY S/O. MALLANAGOUDA BELAVINAHAL AGE: 48 YEARS, OCC: AGRICULTURE, R/O. BIKANALLI, TQ: AND DIST: KOPPAL-583231. 2. SMT. JYOTHI W/O. SURESH REDDY BELAVINAHAL AGE: 43 YEARS, OCC: HOUSEHOLD WORK, R/O. BIKANALLI, TQ: AND DIST: KOPPAL-583231. …APPELLANTS (BY SRI. R.M.JAVED, ADVOCATE) AND: SMT. DEVAMMA W/O. JAGANNATH IMAMATI AGE: 49 YEARS, OCC: HOUSEHOLD WORK, R/O. BALLARWAD, TQ: NAVALGUND, DIST: DHARWAD-582208. …RESPONDENT (BY SRI. B.V.SOMAPUR, ADVOCATE) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 24.02.2022 PASSED IN O.S.NO.93/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE KOPPAL, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL COMING ON FOR FURTHER 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 Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD - 2 - NC: 2025:KHC-D:6731-DB RFA No. 100471 of 2022 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) Captioned appeal is by defendant Nos.1 and 2 assailing the preliminary decree drawn by the Court below in O.S. No.93/2017 whereby 1½ share is granted in item Nos.1 and 2 to 6 properties. Suit is however dismissed insofar as item No.2 by holding that it is a self acquired property of defendant No.1. Defendants are assailing that the preliminary decree insofar as other properties are concerned. 2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court. 3. The plaintiff, who is the sister of defendant No.1, has instituted the present suit claiming that the suit schedule properties constitute joint family ancestral properties. She further contends that she is in joint possession and enjoyment of the said properties. The cause of action for the suit arises from the allegation that defendant No.1 has manipulated the revenue records and - 3 - NC: 2025:KHC-D:6731-DB RFA No. 100471 of 2022 unlawfully caused 4 acres of land to be transferred in favour of his wife, arrayed as defendant No.2. Hence, the plaintiff seeks appropriate relief through the present proceedings. 4. Upon receipt of summons, defendant No.1 entered appearance and filed his written statement, contesting the suit primarily on two grounds. Firstly, he asserts that item No.2 of Schedule A is his self-acquired property and, therefore, the plaintiff has no right or share in the same. Secondly, with respect to the remaining properties, he contends that a partition has already taken place and hence, the suit is not maintainable. In the alternative, defendant No.1 also pleads that the suit for partition is barred by limitation. 5. Both the plaintiff and defendant No.1 adduced oral and documentary evidence in support of their respective claims. Upon consideration of the same, the Trial Court answered Additional Issue No.1 in the affirmative, holding that defendant No.1 had successfully - 4 - NC: 2025:KHC-D:6731-DB RFA No. 100471 of 2022 established that item No.2 of Schedule A is his self- acquired property. However, while deciding Issue No.2, the Trial Court held in the negative, concluding that defendant No.1 had failed to prove the alleged prior partition as claimed in the written statement. 6. Heard the learned counsel for the defendants and learned counsel for the plaintiff. Following point that would arise for consideration is as under: “Whether the finding of the Trial Court that first defendant has failed to prove the plea of prior partition as pleaded in para 5 of the written statement suffers from serious infirmities and warrant interference?” 7. Upon a meticulous examination of the pleadings contained in the plaint as well as the written statement filed by the defendants, and after giving due and anxious consideration to the oral testimony of defendant No.1, who has deposed as DW1, it becomes apparent that the defence taken by defendant No.1 is founded upon the plea of a prior partition of the joint family properties. The very assertion of a prior partition by defendant No.1 implies a - 5 - NC: 2025:KHC-D:6731-DB RFA No. 100471 of 2022 tacit admission that the suit schedule properties bearing item Nos.1 and 3 to 6 are indeed joint family ancestral properties, thereby attracting the rigour of partition law applicable to such properties. 8. Defendant No.1, in paragraph 5 of the written statement, has categorically alleged that a prior partition had taken place in the year 2001, pursuant to which the plaintiff is stated to have received her legitimate share in the form of cash. However, beyond this bare assertion, there is a total absence of any credible or cogent evidence to substantiate this plea. The cross-examination of DW1 does not lend any support to the assertion of such a prior partition, nor does it establish that any payment, much less a legally tenable share, was made to the plaintiff in 2001 as claimed. 9. It is a settled proposition of law that when a party sets up plea of prior partition, the burden of proof squarely lies upon that party to prove the factum of partition and the circumstances under which such a - 6 - NC: 2025:KHC-D:6731-DB RFA No. 100471 of 2022 severance in the joint family status took place. This burden assumes greater significance in the instant case since the defendant has sought to defeat the plaintiff’s claim by invoking not only the plea of prior partition but also the plea of limitation on the ground that the suit instituted in 2017 is barred, having regard to the alleged cash payment made in 2001. In the absence of any independent, reliable documentary evidence to establish the fact of partition or payment, the plea remains unsubstantiated and must necessarily fail. 10. It is a well-established principle of law that unless and until the plea of partition is substantiated by acceptable evidence in the manner recognized by law, the corresponding plea of limitation founded on such partition cannot be sustained. The limitation defence raised by defendant No.1 is intrinsically linked to the alleged severance of the joint family status in 2001, which, as discussed above, has not been proved. Consequently, the - 7 - NC: 2025:KHC-D:6731-DB RFA No. 100471 of 2022 plea of limitation collapses along with the unproven plea of partition. 11. It must also be borne in mind that the right to seek partition in respect of joint family ancestral properties constitutes a continuing and recurring cause of action, especially in cases where no definite act of partition or severance has been demonstrated. Unless severance is conclusively established either by a registered partition deed, unequivocal oral evidence corroborated by conduct, or a decree of court, the law presumes the continuation of the joint family status. 12. Furthermore, in light of the amended provisions of Section 6 of the Hindu Succession Act, 1956, as interpreted and authoritatively laid down by the Hon’ble Supreme Court in Vineeta Sharma v. Rakesh Sharma, [(2019) 6 SCC 164], a daughter’s right in coparcenary property is not only well-recognized but is a pre-existing right by birth. Such right is neither contingent upon the father's survival nor can it be defeated by an - 8 - NC: 2025:KHC-D:6731-DB RFA No. 100471 of 2022 unsubstantiated plea of a prior partition. In the present case, the trial court, in the absence of any rebuttal evidence from defendant No.1 to prove the alleged partition or payment, has rightly answered Issue No.2 in the negative, thereby affirming the plaintiff’s continued entitlement to a share in the suit schedule properties. 13. We do not find any infirmity or illegality in the finding recorded by the Trial Court while answering issue No.2 against defendant No.1. Accordingly, the point formulated by this Court is answered in the negative. 14. For the foregoing reasons and discussions made supra, we proceed to pass the following: ORDER Appeal is devoid of merits and accordingly dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE RSH / Ct:vh List No.: 1 Sl No.: 20