- 1 - NC: 2025:KHC-D:6815-DB RFA No. 100260 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24TH 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. 100260 OF 2019 (PAR/POS) BETWEEN: 1. SMT. NEELAWWA W/O. MANIKPRABHU PATIL, AGE: 37 YEARS, OCC: HOUSEHOLD WORK, R/O: MURKIBHAVI VILLAGE, TQ: BAILHONGAL, DIST: BELAGAVI-590001. 2. SMT. RATNAVVA W/O. SANTOSH PUTTI, AGE: 35 YEARS, OCC: HOUSEHOLD WORK, R/O: SAMPAGAON VILLAGE, TQ: BAILHONGAL, DIST: BELAGAVI-590001. …APPELLANTS (BY SRI. ROHIT SHEELVANT ADV. FOR SRI. V. M. SHEELVANT, ADVOCATE) AND: NAGAPPA CHANNABASAPPA UDAKERI, SINCE DECEASED BY HIS LRS. 1. SMT.GOURAVVA W/O. NAGAPPA UDAKERI, AGE: 58 YEARS, OCC: AGRICULTURE, R/O: MURKIBHAVI VILLAGE, TQ: BAILHONGAL-591102, DIST: BELAGAVI. 2. SRI. BHAGAVANT NAGAPPA UDAKERI, AGE: 39 YEARS, OCC: AGRICULTURE, R/O: MURKIBHAVI VILLAGE, MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.05.02 15:00:31 +0530 - 2 - NC: 2025:KHC-D:6815-DB RFA No. 100260 of 2019 TQ: BAILHONGAL, AT PRESENT CENTRAL JAIL, HINDALAGA, BELAGAVI-590001. 3. SRI. BASAVANNEPPA CHANNABASAPPA UDAKERI, AGE: 67 YEARS, OCC: AGRICULTURE, R/O: MURKIBHAVI VILLAGE, TQ: BAILHONGAL-591102. 4. SHRI. SHANKAR CHANNABASAPPA UDAKERI, AGE: 65 YEARS, OCC: AGRICULTURE, R/O: MURKIBHAVI VILLAGE, TQ: BAILHONGAL. AT PRESENT CENTRAL JAIL, HINDALAGA, BELAGAVI-590001. 5. SRI.SHIVAPPA CHANNABASAPPA UDAKERI, AGE: 51 YEARS, OCC: AGRICULTURE, R/O: MURKIBHAVI VILLAGE, TQ: BAILHONGAL-591102. 6. SRI. GANGAPPA @ RAJASHEKHAR CHANNABASAPPA UDAKERI, AGE: 67 YEARS, OCC: AGRICULTURE, R/O: MURKIBHAVI VILLAGE, TQ: BAILHONGAL-591102. 7. SRI. MAHADEV VEERBHADRAPPA RAYAR, AGE: 53 YEARS, OCC: BUSINESS, R/O: BASAVANAGAR, 4TH CROSS, BAILHONGAL, TQ: BAILHONGAL-591102. 8. SRI. YALLAPPA KALLAPPA KAMATAGI, AGE: 73 YEARS, OCC: AGRICULTURE, R/O: MURKIBHAVI VILLAGE, TQ: BAILHONGAL-591102. SRI.CHANNAPPA KALLAPPA KAMATAGI, SINCE DECEASED BY HIS LR’S AS RESPONDENT NO.10 TO 13. 9. SRI. KALLAPPA SHIVALINGAPPA KAMATAGI, - 3 - NC: 2025:KHC-D:6815-DB RFA No. 100260 of 2019 AGE: 53 YEARS, OCC: AGRICULTURE, R/O: MURKIBHAVI VILLAGE, TQ: BAILHONGAL-591102. 10. SRI. BASAVANTAPPA CHANNAPPA KAMATAGI, AGE: 57 YEARS, OCC: AGRICULTURE, R/O: MURKIBHAVI VILLAGE, TQ: BAILHONGAL-591102. 11. SRI. SHIDDAPPA CHANNAPPA KAMATAGI, AGE: 54 YEARS, OCC: AGRICULTURE, R/O: MURKIBHAVI VILLAGE, TQ: BAILHONGAL-591102. 12. SMT.GANGAVVA W/O. RUDRAPPA MALANNAVAR, AGE: 48 YEARS, OCC: AGRICULTURE, R/O: NESARGI, TQ: BAILHONGAL-591102. 13. SRI. SOMAPPA CHANNAPPA KAMATAGI, AGE: 41 YEARS, OCC: AGRICULTURE, R/O: MURKIBHAVI VILLAGE, TQ: BAILHONGAL-591102. …RESPONDENTS (BY SRI. LAXMAN T. MANTAGANI, ADV. FOR R7; NOTICE TO R1 TO R3, R5, R6, R12 ARE SERVED; NOTICE TO R8 TO R11 AND R13 HELD SUFFICIENT; NOTICE TO R4 SERVED THROUGH JAIL AUTHORITY) THIS REFULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC, PRAYING TO CALL FOR THE RECORDS, ALLOW THIS APPEAL AND MODIFY THE JUDGMENT AND DECREE DATED 18.12.2018 PASSED BY THE SENIOR CIVIL JUDGE BAILHONGAL AT BAILHONGAL IN O.S. NO.8/2015 BY DECREEING THE SUIT IN ITS ENTIRETY IN THE INTEREST OF JUSTICE AND EQUITY. 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 - 4 - NC: 2025:KHC-D:6815-DB RFA No. 100260 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) The captioned appeal is filed by the unsuccessful plaintiffs assailing the judgment rendered by the Trial Court in O.S.No.8/2015, wherein the learned Judge has declined to grant share to the plaintiffs in Item Nos.1 to 3 and consequently the relief of declaration sought by the plaintiffs to declare the sale deed executed by defendant Nos.1 and 2 in respect of Item Nos.1 to 3 is declined. Plaintiffs are aggrieved by non-granting of share in Item Nos.1 to 3. Hence, this appeal. 2. For the sake of convenience, the parties are referred to as per their ranking before the trial court. 3. Before we proceed to examine the rival contentions, we deem it appropriate to take cognizance of the family tree, which is as under: - 5 - NC: 2025:KHC-D:6815-DB RFA No. 100260 of 2019 Channabasappa Basappa Udakeri Basavaneppa Shankar Shivappa Gangappa (Def 3) (Def 4) (Def 5) @ Rajashekar (Def 6) Nagappa Def 1 (died during Pendency of suit) (Gouravva) (Def 1A) Bhagavant Neelavva Ratnavva (Def 2) (Plff 1) (Plff 2) 4. The plaintiffs are the daughters of one Nagappa. It is not in dispute that Item Nos.1 , 2 and 4 to 8 were allotted to the share of Nagappa in a family partition. It is also not in dispute that Item No.3 was allotted to the original propositus Channabasappa’s share and after his death, defendant No.1 has succeeded to an extent of 1/5th share in Item No.3 which is Sy.No.279/1A. 5. The plaintiffs who are the daughters have filed the suit in 2015 alleging that defendants 1 and 2 have sold Item Nos.1 and 2 in favour of defendant No.7 under registered sale deed dated 17.04.2006. Similarly, defendant Nos.1 to 6 have also sold Item No.3 in favour of - 6 - NC: 2025:KHC-D:6815-DB RFA No. 100260 of 2019 defendant Nos.7 to 10 under registered sale deed dated 26.02.2009. The plaintiffs have contended that these alienated properties at Item Nos.1 to 3 are joint family ancestral properties and therefore alienation made by the father and brothers are not binding on the legitimate share of the plaintiff and hence the partition suit is filed. 6. Defendant Nos. 1 and 2 have not chosen to contest the proceedings. Defendant No.7 who has purchased Item Nos.1 and 2 and defendant Nos. 8 to 10 who have purchased Item No.3 along with defendant No.7 have contested the suit. 7. Upon receipt of summons, the defendants appeared and contested the suit and have seriously disputed the plaintiffs’ right in the alienated properties i.e. Item Nos.1 to 3. The defendants have contended that defendant No.1 and his brother under compelling reasons had to sell Item Nos.1 to 3. The defendants have exhaustively narrated in written statement highlighting that defendants 1 and 2 were facing criminal trial for the - 7 - NC: 2025:KHC-D:6815-DB RFA No. 100260 of 2019 offence punishable under Section 302 of IPC and other offences and they were facing the trial in S.C.No.28/2006. Defendants have also contended that there was conviction. Defendant No.2 was punished with death sentence and defendant No.1 was punishment with imprisonment for life. Defendants therefore contended that defendants 1 and his brothers had spent huge amount while seeking reversal of the conviction order by preferring an appeal before this Court. Therefore, defendants pleaded that they are bonafide purchasers and after due enquiry, they have purchased the lands under registered sale deed for a valuable sale consideration. The defendants/purchasers also pleaded that plaintiffs family owns other lands and properties and this suit is filed only in respect of alienated properties and therefore sought for dismissal of the suit. 8. In the light of defence taken by the defendants, plaintiffs have included Item Nos.4 to 8, which were initially not included. - 8 - NC: 2025:KHC-D:6815-DB RFA No. 100260 of 2019 9. Plaintiffs and defendants to substantiate their rival claimants, have led-in oral and documentary evidence. The Trial Court on examination of the material on record answered Issue No.3 partly in the affirmative. While answering Issue No.5 in the affirmative, the Trial Court held that defendant No.7 is a bonafide purchaser. Suit is therefore dismissed insofar as alienated properties are concerned. 10. Heard the learned counsel for the plaintiffs and learned counsel for defendant No.7. We have also examined the pleadings and oral and documentary evidence. The following point would arise for our consideration: “Whether the judgment and decree of the Trial Court in denying share in Item Nos.1 to 3 property is perverse, palpably erroneous and warrants interference at the hands of this Court?” Finding on point. 11. On examining the records, it is not in dispute that Item No.3 property was allotted to the propositus - 9 - NC: 2025:KHC-D:6815-DB RFA No. 100260 of 2019 Channabasappa in a family partition while Item Nos.1, 2 and 4 to 8 were allotted to the share of Nagappa in the very same partition. Therefore, the properties that were allotted to Channabasappa in a family partition has to be treated as absolute property of Channabasappa. After his demise, the plaintiffs’ father Nagappa, defendants 3 to 6 have inherited his property under Section 8 of Hindu Succession Act, 1956 and therefore Item No.3 is their self- acquired property. Plaintiffs being grand children are not entitled for share in a property exclusively allotted to grandfather in a family partition. The said proposition is substantially addressed by the Hon’ble Apex Court rendered in the case of Commissioner of Wealth Tax, Kanpur v/s Chander Sen reported in (1974) 96 ITR 634. Therefore, the plaintiffs being daughters and grandchildren cannot maintain a partition suit insofar as Item No.3 is concerned. 12. With regard to Item Nos. 1 and 2, although there is no direct evidence to conclusively establish that - 10 - NC: 2025:KHC-D:6815-DB RFA No. 100260 of 2019 defendant No.1, in collusion with defendant No.2, was compelled or coerced into selling these properties, the evidence led by defendant No.7 provides substantial support to the contention that the sale of these properties was prompted by compelling and unavoidable circumstances. Notably, the rebuttal evidence on record clearly discloses that defendant No.1 was undergoing a criminal trial for an offence punishable under Section 302 of the Indian Penal Code. The judicial record further reveals that defendant No.1 was convicted and sentenced to life imprisonment. Subsequently, however, this conviction was set aside by this Hon’ble Court on appeal, resulting in the acquittal of defendant No.1. These circumstances taken together lead to a reasonable and plausible inference that the sale of Item Nos.1 and 2 was not voluntary in the true sense, but rather necessitated by the exigencies arising out of the then prevailing legal and personal difficulties faced by defendant No.1. Hence, it is evident that the alienation of these properties was made under compelling circumstances. - 11 - NC: 2025:KHC-D:6815-DB RFA No. 100260 of 2019 13. The conduct and pattern of behavior exhibited by defendant Nos.1 and 2 further reinforces this inference. The nature of the present proceedings, filed ostensibly by the daughters of defendant Nos.1 and 2, suggests that the suit is collusive in nature. Despite having executed the sale of Item Nos.1 and 2 as far back as the year 2006, neither defendant No.1 nor defendant No.2 initially contested the suit by filing a written statement, which supports the view that the litigation was instituted with ulterior motives. It is pertinent to note that defendant No.7, after due verification of the title documents, purchased Item Nos.1 and 2 in the year 2006 for valuable consideration under a registered sale deed dated 17.04.2006. Importantly, the suit for partition was filed only in the year 2015, nearly a decade later. By this passage of time, defendant No.7 had acquired indefeasible rights in respect of these properties. The principle laid down by the Hon’ble Supreme Court in Chhedi Lal Yadav v. Hari Kishore Yadav (Dead) through Legal Representatives, reported in (2018) 12 SCC 527, - 12 - NC: 2025:KHC-D:6815-DB RFA No. 100260 of 2019 squarely applies to the present case. Accordingly, the rights accrued to defendant No.7 under the registered sale deed cannot be disturbed or divested at the instance of the plaintiffs who remained silent for nearly nine years. 14. Although the plaintiffs are legally entitled to seek partition, such a right is subject to equitable considerations and must be exercised with clean hands. Their right, if any, must be worked out with respect to the remaining joint family properties, namely Item Nos.4 to 8. The conduct of the plaintiffs in initially filing the partition suit solely in respect of the alienated properties, while omitting to include other joint family properties, further strengthens the inference that the suit was filed with a collateral objective of setting aside the sale deeds executed by defendant Nos.1 and 2. It was only after the written statement was filed by the defendant no.7/purchaser that the existence of additional joint family properties came to light and were subsequently included in the plaint. This deliberate suppression of material facts - 13 - NC: 2025:KHC-D:6815-DB RFA No. 100260 of 2019 and selective inclusion of properties reflects on the bona fides of the plaintiffs. Therefore, this Court is of the opinion that the plaintiffs must restrict their claim for partition to the remaining properties (Item Nos.4 to 8), and cannot now, after an inordinate delay, challenge the alienation of Item Nos.1 and 2, which stood transferred in 2006 to a bona fide purchaser for value. Accordingly point formulated is answered in the negative. 15. For the forgoing reasons, we are not inclined to grant any relief, appeal is devoid of merits and accordingly we proceed to pass the following: ORDER The appeal is dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE CLK /CT-AN List No.: 1 Sl No.: 14