- 1 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF JULY, 2025 PRESENT THE HON'BLE MR. JUSTICE S.G.PANDIT AND THE HON'BLE MR. JUSTICE T.M.NADAF REGULAR FIRST APPEAL NO.464 OF 2010 (PAR) BETWEEN: 1a. 1b. 1c. SRI D.JAGANNATH S/O A S DASAPPA SINCE DEAD BY LRs SMT. KUMARI @ VISHALAKSHI AGED ABOUT 64 YEARS W/O LATE D.JAGANNATH SMT. CHAITRA A J AGED ABOUT 40 YEARS W/O KESHAVA MURTHY S P D/O LATE D.JAGANNATH R/AT NO.158, 7TH CROSS, NAVILU ROAD, A & B BLOCK KUVEMPU NAGAR MYSORE – 570 023 CHETHAN DAS A J AGED ABOUT 36 YEARS S/O LADE D.JAGANNATH 1a & 1b BOTH ARE R/AT NO.156 OLD POST OFFICE ROAD, HUNSUR TOWN, MYSORE DISTRICT – 571 105 …APPELLANTS (BY SRI. B S NAGARAJ, ADVOCATE FOR A1[a TO c]) Digitally signed by MARIGANGAIAH PREMAKUMARI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 AND: 1a) 1b) 1c) 1d) SMT. D.SUNANDAMMA DIED BY LRs SMT. C.V.RANJANA DEAD BY LRs DEAD ON 16.11.2009 SMT. KUMARI DEEKSHA AGED ABOUT 25 YEARS D/O LATE RANJANA R/AT CHAKKUR VILLAGE SARAGUR HOBLI, H.D.KOTE TALUK MYSORE DISTRICT – 571 115 SMT. C.V.LAVANYA, AGED ABOUT 36 YEARS D/O C.S.VINOD KUMAR SMT. C.V.MANGALA AGED ABOUT 34 YEARS D/O C.S.VINOD KUMAR SMT. C.V.SHILPA AGED ABOUT 32 YEARS D/O C.S.VINOD KUMAR ALL ARE R/AT CHAKKUR VILLAGE SARAGUR HOBLI, H D KOTE TALUK, MYSORE DISTRICT – 571 114 2. SMT. D NAGARATHNAMMA AGED ABOUT 58 YEARS W/O SARANGAPANI R/OF MATHUR VILLAGE, MANADAVADI TALUK - 3 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 WYNAD DISTRICT KER KERALA STATE – 604 408 …RESPONDENTS (BY SRI. N.KUMAR & RAGHU H.R, ADVOCATES FOR R1(a-d) & R2, ABSENT) THIS RFA IS FILED UNDER ORDER 41, R-1 AND R/W SECTION 96 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 16.12.2009 PASSED IN O.S.NO.175/2002 ON THE FILE OF THE CIVIL JUDGE, (SENIOR DIVISION) AND JMFC, HUNSUR AND DISMISS THE SUIT OF THE RESPONDENT BY ALLOWING THIS APPEAL IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.G.PANDIT and HON'BLE MR. JUSTICE T.M.NADAF ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE S.G.PANDIT) This Regular First Appeal filed under Section 96 of the Code of Civil Procedure is directed against the judgment and decree passed in O.S.No.175/2002 filed for partition on the file of the Civil Judge, Senior Division at Hunsur, wherein, the suit filed by the respondents – plaintiffs was partly allowed granting partition and separate possession of 1/3rd share each in Item Nos.1 to 6 - 4 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 of ‘A’ schedule and Item Nos.1 to 6 and 8 of ‘B’ schedule to the plaintiffs. Insofar as suit of the plaintiffs in respect of Item No.7 of ‘A’ schedule, Item No.7 of ‘B’ schedule and properties of ‘C’ schedule are concerned, the suit is dismissed. 2. Defendant No.1 is in appeal. The parties to the suit would be referred to as they stood before the trial Court. Appellant was defendant No.1 and respondents No.1 and 2 were plaintiffs, who are sisters of the defendant No.1. The defendants No.2 and 3, who are tenants were given up during the course of trial of the suit. 3. The plaintiffs and defendant No.1 are the children of late A.S.Dasappa. The plaintiffs filed suit in O.S.No.175/2002 with a prayer to pass judgment and decree for partition and separate possession by means of 2/3rd share in the suit schedule properties with a direction for enquiry for mesne profits under Order 20 Rule 18 of - 5 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 CPC against defendant No.1. The suit schedule consisted of schedule ‘A’ with 7 items of properties, schedule ‘B’ with 8 items of properties and schedule ‘C’ with 6 items of movable properties. Suit averments would indicate that plaintiffs and defendant No.1 are the children of late A.S.Dasappa and late Chinnamma. It is stated that their father died on 24.08.1987, whereas, mother died on 28.07.1997. Plaint averments would indicate that except Item Nos.1 and 2 in ‘B’ schedule, all other plaint schedule properties are self-acquired properties of father of the plaintiffs late A.S.Dasappa. It is stated that the father of the plaintiff A.S.Dasappa was a practicing Advocate. Out of his professional earnings, the self-acquired properties are stated to have been purchased. Further, plaint averments indicate that father of the plaintiffs and defendant No.1 had settled item Nos.1 and 2 of ‘B’ schedule property in favour of late D.Vijaylasmi, sister of the plaintiffs and defendant No.1, under settlement deed dated 24.06.1959. Since she predeceased her parents, the said properties - 6 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 devolved upon her parents and subsequently, devolved on the plaintiffs and defendant No.1. It is alleged that the plaintiffs’ demand for partition was denied by defendant No.1 and as the defendant No.1 was making efforts to alienate schedule ‘A’ and ‘B’ properties, suit for partition came to be filed. Initially, the suit filed by the plaintiffs was numbered as O.S.No.411/1998 and the said suit was subsequently, renumbered as O.S.No.175/2002. 4. Defendant No.1, brother of the plaintiffs filed written statement denying that the suit schedule properties were not acquired out of professional earnings of his father. Further, defendant No.1 stated that the suit schedule items are the ancestral properties of late A.S.Dasappa. Defendant No.1 also denied the suit averment with regard to joint possession of the suit schedule properties as co-sharers. Defendant No.1 also denied the entitlement of plaintiffs for 1/3rd share each in the suit schedule properties. Further, the written statement would indicate that the father of the plaintiffs - 7 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 and defendant No.1 purchased the suit schedule properties from the income derived from the ancestral properties and also appropriating compensation amount received in acquisition of certain other properties. Thus, it is stated that the properties or items of suit schedule are purchased by father A.S.Dasappa out of ancestral funds and they are all ancestral properties in the hands of father A.S.Dasappa. 5. Written statement would also state that the plaintiffs deliberately suppressed material facts and have omitted to include several items of properties which belong to joint family of late A.S.Dasappa. Defendant No.1 also denied the execution of Will dated 10.12.1986 and contended that the said Will is fabricated document created by plaintiffs to knock off valuable assets belonging to defendant No.1 and father A.S.Dasappa. Further, it is stated that the father also purchased properties in the name of mother Smt. Chinnamma, who had no independent source of income. It is also stated that those - 8 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 items of properties purchased in the name of mother are also purchased out of income from ancestral property. Therefore, those items of properties could not have been bequeathed. At paragraph No.16 of the written statement, the defendant No.1 specifically contends that the house property No.146/4 at Hunsur was purchased by father in the name of plaintiffs out of joint family funds. It is also stated that the property at Chakkur Village was also constructed out of the income derived from the joint family properties. Defendant No.1 further contended that he has spent considerable amount for maintenance and upkeep of the house properties belonging to the family and also for renovation of ‘A’ schedule items No.1 and 2. Defendant No.1 denies the claim of the plaintiffs for 2/3rd share in the schedule properties. Thus, the defendant No.1 prayed for dismissal of the suit. 6. The trial Court on the pleadings of the parties, initially framed as many as 14 issues and one additional issue on 24.11.2009 and subsequently, the issues were - 9 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 recasted on 08.12.2009. Recasted issues and additional issue reads as follows:- “CORRECTED ISSUES 1) Whether the plaintiffs prove that except item No.1 & 2 of B schedule all other suit schedule properties are the self acquired properties of their father A.S. Dasappa? 2) Whether the plaintiffs further prove that they are entitled to 1/3 share each in the suit schedule properties? 3) Whether the plaintiffs further prove that the defendant is making attempt to alienate suit 'A' and 'B' schedule properties? 4) Whether the defendant proves that item no.1 and 2 of 'B' schedule being the ancestral properties, his father had no authority to settle those properties in favour of late Vijayalakshmi? 5) Whether the defendant further proves that all the items of the suit properties are acquired from and out of ancestral funds and hence the said properties were ancestral properties in his hands? 6) Whether the defendant further proves that item No.1 to 6 of 'A' schedule are the ancestral - 10 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 properties of A.S. Dasappa as he purchased the same out of the income derived from other ancestral properties? 7) Whether the defendant further proves that the item No.7 of 'A' schedule and item No.7 of 'B' schedule are his self acquired properties? 8) Whether the defendant further proves that item No.3 to 6 & 8 of 'B' schedule properties were also ancestral properties of Late A.S. Dasappa as he purchased the same out of the income derived from ancestral properties and funds? 9) Whether the plaintiffs prove that suit 'C' schedule properties are available for partition and they are entitled for 1/3 share each in the said property? 10) Whether the defendant further proves that the plaintiffs have omitted to include several items of properties of joint family of Late A.S.Dasappa as contended by him in para-14 & 15 of his written statement? 11) Whether the defendant further proves that the plaintiffs have omitted to include the house property that was purchased from the joint family funds in the name of 1 plaintiff? - 11 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 12) Whether the defendant further proves that he has spent more than Rs 50,000/- for renovation of item No. 1 and 2 of house property of suit 'A' schedule? 13) What order or decree? Additional Issue No. 1 Whether the defendant No.1 proves that in view of registered settlement deed dtd: 24-6-1959, the suit of the plaintiffs is not maintainable?” 7. On behalf of the plaintiffs, Smt.D.Nagarathna, plaintiff No.2 examined herself as PW1 and also examined one Sri.Y.Krishnappa as PW2. Defendant No.1 examined himself as DW1 and three witnesses examined as DWs-2 to 4. The plaintiffs marked Exs.P1 to P15 and defendants marked Exs.D1 to D42 on their behalf. 8. The trial Court on appreciation of the material on record, allowed the suit partly and made the following order:- “ORDER The suit of the plaintiff of OS 91/99 is hereby dismissed. - 12 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 The suit of the plaintiffs of OS 175/02 is hereby decreed in part for the relief of partition and separate possession of the plaintiffs’ 1/3rd share each in item No.1 to 6 of ‘A’ schedule and item No.1 to 6 & 8 of ‘B’ schedule of OS 175/02 and item No.1 of the schedule of the written statement of the defendant filed in OS 175/02 holding that the plaintiffs are entitled to get 1/3rd share each in the said properties by metes and bound. So far as the suit of the plaintiffs in respect of item No.7 of ‘A’ schedule and item No.7 of ‘B’ schedule & properties of ‘C’ schedule of OS 175/02 is concerned, the same is dismissed. Item No.1 to 6 & 8 of ‘B’ schedule being agricultural lands, partition of the same shall be made as per the provisions of Sec.54 of C.P.C. Partition of other properties can be made by appointment of Court commissioner. Parties to bear their own costs. Draw decrees accordingly. Original judgment shall be kept in OS 175/2002 and a copy thereof in OS 91/1999.” - 13 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 9. Aggrieved by partly allowing the suit, granting relief of partition and separate possession of plaintiffs’ 1/3rd share, each in Item Nos.1 to 6 of ‘A’ schedule and Item Nos.1 to 6 and 8 of ‘B’ schedule, as well as Item No.1 of the written statement schedule, defendant No.1 is in appeal. 10. Heard Sri.B.S.Nagaraj, learned counsel for the appellant and perused the entire appeal papers including the trial Court records. There is no representation for the respondents. Sri.B.S.Nagaraj, learned counsel for the appellant-defendant No.1 would submit that the judgment and decree of the trial Court is the result of non- appreciation of material on record. He submits that the trial Court failed to appreciate the evidence of PW-1 as well as DW-1 in its proper perspective. Learned counsel would submit that the Settlement Deed dated 26.04.1959 was placed on record as Ex.P.1 wherein, the father of the plaintiffs and defendant No.1 settled among the members of the family, the properties of the joint family and as on - 14 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 the date of deed of settlement, distributing the share of each family members, the jointness of the family had not remained, as partition had already taken place in the form of settlement under Ex.P1. The plaintiffs, sisters of defendant No.1 were not entitled for any share in the properties acquired subsequent to partition under Ex.P.1. Learned counsel for the defendant No.1 – appellant referring to Ex.P.1 would submit that the document at Ex.P.1 clearly stipulates that share has been allotted to the sisters and for himself. It is to be construed as partition deed and as the partition had taken place, the sisters were not entitled for any share in the properties acquired subsequently. 11. Sri.B.S.Nagaraj, learned counsel would also contend that the plaintiffs - sisters have failed to include all the properties of the family. He submits that as the plaintiffs had not included all the properties to the suit schedule, no suit for partial partition would be maintainable. Learned counsel places reliance on the - 15 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 decision of the Hon’ble Apex Court in the case of Kalyani (dead) by L.Rs vs. Narayanan and others reported in AIR 1980 SC 1173 to contend that there was severance of joint family and as such, the sisters could not have sought for partition of subsequently acquired suit schedule properties. Learned counsel also places reliance on the decision of the Hon’ble Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma and others reported in 2020 SAR (Civ) 1030 to contend that as partition had taken place under Settlement Deed dated 26.04.1959 among the family members, subsequently, sisters could not have sought partition or could not have reopened the partition. Thus, learned counsel prayed for allowing the appeal. 12. On hearing the learned counsel for the appellant and on perusal of the entire appeal papers including the trial Court records, the following point would arise for consideration:- - 16 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 1. “Whether the trial Court is justified in granting 1/3rd share to the plaintiffs in the facts and circumstances of the case?” 13. Answer to the above point would be in the Affirmative for the following reasons and appeal is liable to be dismissed. The issue as to whether the plaintiffs prove that they are entitled to 1/3rd shares each in the suit schedule properties is answered in the Affirmative. Issue No.5 as to whether the defendant proves that all items of the suit schedule properties are acquired from out of the income of ancestral funds and hence the said properties were ancestral properties in his hands is answered in the Negative and it is held that all the suit schedule properties are self acquired properties of the father of the plaintiffs and defendant No.1. Issue No.7 as to whether the defendant further proves that item No.7 of ‘A’ schedule and item No.7 of ‘B’ schedule are his self acquired property is answered in the Affirmative holding that those - 17 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 properties are self acquired properties of defendant No.1. Additional Issue as to whether defendant No.1 proves that in view of the registered settlement deed dated 24.06.1959, suit of the plaintiffs is not maintainable is answered in the Negative. The entire case of the appellant/defendant No.1 is on issue No.5 and additional issue No.1. 14. Appellant/defendant No.1 has utterly failed to prove that the suits schedule properties except item No.7 of ‘A’ schedule and item No.7 of ‘B’ schedule are acquired form and out of ancestral funds. Therefore, the plaintiffs were not entitled for share in the suit schedule properties which were acquired subsequent to Ex.P1 the settlement deed dated 24.06.1959 under which, the partition had taken place and the shares of the plaintiffs have already been given. 15. We must remember that there is difference between partition and settlement. Partition is amongst the - 18 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 family members or coparceners where they divide or agreed to divide the joint family properties and further they severe their jointness in the family. Whereas, settlement could be among family members as well as other than family members for the purpose of distributing the property of the settlor. 16. Admittedly, the suit schedule properties are properties acquired by father of the plaintiffs and defendant No.1 subsequent to Ex.P1 settlement deed dated 26.04.1959. Admittedly, the suit schedule properties are not part of Ex.P1 settlement deed dated 26.04.1959. We have gone through Ex.P1 settlement deed whereunder the father of the plaintiffs and defendant No.1 settled among family members the ancestral properties, which were in his hands. As on the date of Ex.P1 – settlement deed dated 24.06.1959, father of the plaintiffs and defendant No.1 had not acquired the suit schedule properties. Suit schedule properties are acquired subsequent to Ex.P1, settlement deed dated 24.06.1959 - 19 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 and the suit schedule properties are self-earned/acquired properties of father of the plaintiffs and defendant No.1. It is not in dispute that father of plaintiff and defendant No.1 was a practicing advocate having lucrative practice. The father died intestate. On his death, the suit schedule properties shall have to devolve in terms of Section 8 of the Hindu Succession Act, 1956 i.e., Class-I heirs would be entitled to properties of male Hindu dying intestate. Though defendant No.1 contended that the suit schedule properties are not self-acquired properties of the father, but they are purchased out of the funds or nucleus of joint family properties, but he has failed to place on record any material in support of his contention. No cogent evidence is placed on record to contend that the suit schedule properties are acquired out of the joint family funds. Mere statement without supporting evidence, the contention of the defendant No.1 cannot be accepted. The Trial Court is right in holding that the plaintiffs and defendant No.1 being Class-I heirs of late A.S.Dasappa are entitled for - 20 - HC-KAR NC: 2025:KHC:25856-DB RFA No. 464 of 2010 1/3rd share in the suit schedule properties. Moreover, the plaintiffs being Class-I heirs would be entitled for legitimate share in the suits schedule properties left behind by thief father. 17. For the reasons recorded above, there is no merit in the above appeal and accordingly the same stands dismissed. No order as to costs. Sd/- (S.G.PANDIT) JUDGE Sd/- (T.M.NADAF) JUDGE MH/NC List No.: 1 Sl No.: 20