- 1 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH 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. 100366 OF 2018 (PAR/POS) BETWEEN: 1. ANIL S/O. HANUMANADAS BHANDARI, 43 YEARS. 2. GOVARDHANADAS S/O. RAMARATAN KARAVA, 41 YEARS. 3. JUGALAKISHOR S/O. KISHANGOPAL DARAK, 59 YEARS. RESIDENT OF WARD NO.6, MARAWAD GALLI, ILKAL-587118, HUNGUND TALUK, BAGALKOTE DISTRICT. 4. GUNAVANTIBAYI W/O. SHIVANARAYAN JAAJU, 59 YEARS, R/O. WARD NO.2, NEAR RAMADEVAR TEMPLE, ILKAL-587118, HUNGUND TALUK, BAGALAKOTE DISTRICT. 5. SURAJ S/O. RAMANUJA DARAK, 33 YEARS, R/O. WARD NO.6, MARAWAD GALLI, ILKAL 587118, HUNGUND TALUK, BAGALAKOTE DISTRICT. Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 6. RENUKAYYA S/O. SOMASHEKHARAYYA SHASTRI, 53 YEARS, R/O. WARD NO.7, BANAGAR ONI, ILKAL-587118, HUNGUND TALUK BAGALAKOTE DISTRICT. 7. SURESH S/O. GOVINDARAO BENGALUR, 55 YEARS, R/O. WARD NO.1, KAVISHETTI ONI, ILKAL 587118, HUNGUND TALUK, BAGALKOTE DISTRICT. 8. RAGHUNANDAN S/O. LAXMINARAYAN KARAVA, 49 YEARS, R/O/ NEAR RAMADEVAR TEMPLE. KOPPARAD PET. ILKAL-587118, HUNGUND TALUK, BAGALKOTE DISTRICT. 9. YAMANAPPA S/O. HARILAL LAMANI, 47 YEARS, R/O. BALAKUNDI (MELINA TANDA), HUNGUND TALUK, BAGALKOTE DISTRICT-587118. …APPELLANTS (BY SRI. JAGADISH PATIL, ADVOCATE) AND: 1. SAVITRI @VASUDHA W/O. VASUDEV PUROHIT, 47 YEARS, R/O. BALAKUNDI, HUNGUND TALUK, BAGALKOTE DISTRICT-587118. 2. RAVINDRA S/O. VENAKTESH KULKARNI, 42 YEARS, R/O. BALAKUNDI, HUNGUND TALUK, BAGALAKOTE DISTRICT-587118. 3. SHILPA W/O. KRISHNA, 39 YEARS, R/O D. HIREHAL, ANANTAPURAM TALUK & DISTRICT-510051, ANDHRA PRADESH. 4. RAMASHRI W/O. GOPALKRISHNA, - 3 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 37 YEARS, R/O. MARIYAMMANHALLI, HOSAPETE TALUK, BALLARI DISTRICT-583 201. 5. NANDA @ SUNANDA W/O. JAGANATH JAHAGEERDAR, 64 YEARS, R/O. BALAKUNDI, HUNGUND TALUK, BAGALKOTE DISTRICT-587118. 6. RAMACHARYA S/O. BHEEMACHARYA MALAGI, 60 YEARS, R/O. NGO COLONY, JEVARGI ROAD, KALABURAGI-585101. 7. THE ASSISTANT COMMISSIONER, OFFICE OF THE ASSISTANT COMMISSIONER, NEAR OLD COURT, BAGALKOTE-587101. 8. THE SPECIAL LAND ACQUISITION OFFICER, KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD, NO.33/A, LAKAMANHALLI INDUSTRIAL AREA, P.B. ROAD, DHARWAD-580004. 9. THE GOVERNMENT OF KARNATAKA, REPRESENTED BY DEPUTY COMMISSIONER, NAVANAGAR, BAGALKOTE-587101. …RESPONDENTS (BY SRI. SHIVAPRASAD B. SAJJAN AND SRI. VIJAY CHINIWAR, ADV. FOR R2 TO R5; SRI. GURUDEV I. GACHCHINAMATH, ADV. FOR R8; SRI. P. N. HATTI, HCGP FOR R7 & R9; NOTICE TO R6 SERVED) THIS REGULAR FIRST APPEAL IS FILED UNDER SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD:06.07.2018 PASSED IN O.S.NO.18/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, HUNGUND, PARTLY DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION AND INJUNCTION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) Defendant Nos.2 to 10 have filed this appeal challenging the judgment and decree dated 06.07.2018 passed in O.S No.18/2013 by the Senior Civil Judge, Hunagund. 2. Respondent Nos.1 to 5 herein have filed suit for the relief of partition and the said suit was partly decreed by the Trial Court. Being aggrieved by the said decree and judgment, defendant Nos.2 to 10, who are purchasers of the property from defendant No.1 filed the present appeal. 3. We refer to the parties as per their ranking before the Trial Court. 4. It is the case of the plaintiff that one Krishnacharya Malagi was the propositus of the family. He had two sons by name Bhimacharya and Gopalacharya. Both sons are dead. - 5 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 Bhimacharya had two daughters and one son who are plaintiff Nos.2, 3 and defendant No.1. Gopalacharya had one daughter by name Savithri, who is plaintiff No.1. It is further contention of the plaintiff that the suit properties were originally bearing survey No.143, totally measuring 19 acres and 03 guntas, situated at Balakundi Village of Hungund Taluk. It was granted to Krishnacharya Malagi for performing pooja to Lakshminarayan deity and it was an Inam land. After coming into force of Inam Abolition Act, the said Krishnacharya filed application for re-grant of land. Accordingly, the said land was re-granted in favour of Krishnacharya Malagi and he died intestate. After his death, his two sons Bhimacharya and Gopalacharya succeeded to the said properties. Both Bhimacharya and Gopalacharya died intestate leaving behind plaintiffs as their legal heirs. Defendant No.1 is the only son of said Bhimacharya. After the death of Bhimacharya, defendant No.1 got mutated revenue records in his own name behind the back of the plaintiffs and all the revenue records were standing in the name of defendant No.1. - 6 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 5. It is further contended that defendant No.1 without any legal necessity or for the family benefit, and without consent of knowledge, sold portion of the suit properties in favour of defendant Nos.2 to 10. It is further contended that defendant Nos.11 to 13 have acquired the portion of the suit properties. The sale deed executed by the defendant No.1 in favour of defendant Nos.2 to 10, are not binding to the rights of the plaintiffs. The plaintiffs are entitled for partition and separate possession of their share in the suit schedule properties. 6. Plaintiffs have demanded for partition and separate possession of their share in the suit schedule properties with defendant No.1. Defendant No.1 refused to effect the partition therefore, the plaintiffs were constrained to file the suit. With these reasons, the plaintiffs pray to decree the suit. 7. Defendant Nos.1 and 11 to 13 have not filed written statements. Defendant Nos.2 to 10 have filed common written statement. The contention of the defendant Nos.2 to 10 are that suit properties are the absolute - 7 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 properties of defendant No.1 and he sold the portion of the suit schedule properties under the registered sale deed, in favour of defendant Nos.2 to 10, with the consent of plaintiff No.2. This is collusive suit just to cause loss to defendants No.2 to 10. Defendants No.2 to 10 purchased the properties for valuable sale consideration under registered sale deeds. They are bonafide purchasers. The suit properties were sold during the year 1997. Father of the plaintiffs died during the year 1988 and the cause of action arose for the plaintiffs to file the suit for partition during the year 1988 and the suit is filed after long gap of about 20 years. Therefore, suit is hopelessly barred by time. With these reasons, defendant Nos.2 to 10 prayed to dismiss the suit with costs. 8. From the rival contention of the parties, the Trial Court framed the following issues: 1. Whether plaintiffs prove that, they have got 5/6th share in the suit properties? 2. Whether defendants No.2 to 10 prove that Sy.No.143 measuring 19 acres 3 guntas of Balakundi village is the self acquired property of Bheemacharya? - 8 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 3. Whether the defendants No.2 to 10 further prove that, they are the bonafide purchasers of the suit properties for valuable consideration? 4. Whether defendant No.2 to 10 prove that, as on the date of suit, the suit schedule properties are not in existence, hence the suit of the plaintiff is not maintainable in the eyes of law? 5. Whether defendant No.2 to 10 prove that, the Court fee paid by the plaintiffs U/s. 35 (2) of Karnataka Court Fees and Suit Valuation Act is not proper and correct? 6. Whether plaintiffs are entitled for relief claimed in the suit? 7. What order or decree? 9. Plaintiff to prove their case, examined 3 witnesses as PW.1 to PW.3 and they got marked 20 documents as per Exs.P1 to P20. Defendant No.7 was examined as DW.1 and they got marked 5 documents as per Ex.D1 to D5. 10. The Trial Court after hearing both the parties and appreciating the pleadings and evidence on record, answered issue No.1 partly in the affirmative, issue Nos.2, 3, 4, and 5 - 9 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 in the Negative, issue No.6 partly in the affirmative, issue No.7 as per the final order and the Trial Court decreed the suit in part. The Trial Court granted 1/6th share to each plaintiff Nos.2 and 3 in the compensation amount awarded towards acquisition of the suit properties by the Government. It has also held that the sale deed executed by defendant No.1 in favour of defendant Nos.2 to 9 is valid to the extent of 4/6th share of defendant No.1, in the said properties. The sale deed executed by defendant No.1 in favour of defendant Nos.2 to 9 are not binding to the 1/6th share of each plaintiffs Nos.2 and 3. The claim of plaintiff No.1 was dismissed. The said findings have been challenged in the present appeal. 11. We have heard the arguments of learned advocates appearing for both sides. Following question arises for our determination: 1. Whether the learned trial judge erred in holding that suit schedule properties are ancestral joint family properties? - 10 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 2. Whether the learned trial judge erred in not holding that defendant Nos.2 to 10 are bonafide purchasers for valuable consideration? 3. Whether the findings of the learned trial judge is erroneous, arbitrary, perverse and interference by this Court is required? 4. Whether the share allotted by the Trial Court to the plaintiffs and defendant No.1 is in accordance with law and reconsideration of the said fact is required? 5. What order? 12. Our findings on the above points: Point Nos.1 and 2: Both these points are interconnected therefore, we discussed them together to avoid repetition. 13. It is the contention of the plaintiffs and evidence of PW.1 and PW.2 that the suit schedule properties were Inam lands and they were granted in favour of Krishnacharya Malagi, who was the propositus of the family, - 11 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 for performing pooja of Lakshminarayana deity. The said Krishnacharya Malagi had two sons by name Bheemacharya and Gopalacharya. It is also not in dispute that after coming into force of Inam Abolition Act, the said Krishnacharya Malagi had filed an application to the Special Deputy Commissioner for re-grant of the said land. The said land was re-granted in favour of Krishnacharya. The said Krishnacharya Malagi died intestate. Thereafter the said properties were succeeded by Bhimacharya and Gopalacharya. Both Bhimacharya and Gopalacharya are dead leaving behind their legal heirs, i.e. plaintiffs and defendant No.1. 14. Defendant No. 2 to 10 contended that suit schedule properties are self acquired properties of Bhimacharya and his son defendant No.1. The RTC’s of the suit schedule properties are produced at Exs.P2 to P10. It is not in dispute that originally the properties were re-granted in the name of grandfather of the plaintiffs. Earlier entire extent of land was given only one survey number. At the time of filing of the suit it was sub-divided and totally there - 12 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 are 9 sub-divisions in the survey number 143, which are mentioned in plaint ‘B’ schedule. The RTC’s are standing in the name of defendant Nos.2 to 10 and defendant No.12, after acquisition of portion of the suit property. 15. Ex.P11 is mutation entry No.289 dated 16.09.1989; it shows that after death of Bhimacharya Malagi, on 29.06.1988 the properties standing in his name were mutated in the name of defendant No.1. It is also mentioned therein that the deceased had 2 daughters and one son and both daughters of Bhimacharya residing in their respective husband's house. Therefore, the name of defendant No.1’s name alone was entered in the revenue records. Defendant No.2 to 10 have produced copy of the very same document at Ex.D2. 16. Defendants No. 2 to 10 have produced Ex.D3, wherein both the daughters of Bhimacharya have given a statement before revenue officers that they do not have any objection to enter the name of their brother, in the revenue records. On the basis of Ex.D3, the learned counsel for the - 13 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 appellants contend that according to the Ex.D3 plaintiffs have given declaration before the revenue officers not to add their names in the revenue records. They have relinquished their right over the suit properties and they also consented to enter the name of Defendant No.1 in the revenue records. Hence they have no right to claim share in the properties sold to Defendants No.2 to 10. 17. The contention of the appellants is not acceptable. Daughters of Bhimacharya Malagi have not at all mentioned in Ex.D3 that they have relinquished their right over the properties. It is an unregistered document and they have not clearly mentioned that they have relinquished their right over the properties belonging to the family. Therefore, defendant No. 2 to 10 cannot read between the lines and say that plaintiffs have relinquished their right over the suit property in favour of defendant No.1. 18. Exs.D2 and D3 shows that plaintiff Nos. 2 and 3 have also vested right and interest over the suit properties as on the date of death of Bhimacharya. Therefore, the - 14 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 village accountant took their statement to mutate the revenue records in the sole name of defendant No.1. Merely they had consented before the revenue officers to enter the name of defendant No.1 alone cannot be considered that they had relinquished their right over the suit property. 19. The trial Judge has wrongly considered the contentions of the parties and has not applied proper provision of law. PW-1 in his evidence in clear terms has stated that suit properties were given to Krishnacharya to perform puja of the Lord laxmi Narayan deity and he was performing the puja and was enjoying the benefits of the said property. After coming into force of the Inam Abolition Act, the said Krishnacharya applied for re- grant of the land. Accordingly, the said properties were re-granted in the name of Krishnacharya and he died intestate. These are undisputed facts. After death of Krishnacharya his both sons Bhimacharya and Gopalacharya succeeded to the said properties. And each had equal share in the property. However, the revenue records were mutated only in the name of defendant No.1. It appears that Bhimacharya was - 15 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 elder to Gopalacyarya and hence his name alone entered in the revenue record. 20. It is not the case of plaintiffs or defendants that during the lifetime of Bhimacharya and Gopalacharya, there was a partition between them and all the properties held by Krishnacharya Malagi were given to the share of Bhimacharya. There are no registered documents executed by Gopalacharya transferring his right over the property in favour of his brother Bhimacharya. Under these circumstances, both Bhimacharya and Gopalacharya were entitled for share in the suit property and each were entitled for half share in the suit property. 21. After death of Bhimacharya, his son and 2 daughters succeeded to the share held by Bhimacharya and similarly daughter of Gopalacharya succeed to the extent of share held by Gopalacharya. Both the branches were entitled for half share in the suit properties. Out of the said half share to be allotted to the share of Bhimacharya, his 2 daughters and son each entitle for 1/6 share in the ‘A’ - 16 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 properties. The remaining half share, shall go to the daughter of Gopalacharya. Accordingly, plaintiff No.1 is entitled for half share in the properties and plaintiff No.2 and 3 as well as defendant No.1 together entitled for half share in the suit schedule property (each are entitled for 1/6th in the suit properties). 22. The suit was filed during the year 2013 i.e after coming into force of Hindu succession amendment Act to Section 6 of the Act. After coming into force of amendment to Section 6 of Hindu succession amendment Act, female heir are also considered as coparceners and they are entitled for equal share to that of a son. The said principle of law is held by Hon’ble Apex Court in the case of Vinutha Sharma Vs. Rakesh Sharma and others. Therefore, whether it was a joint family properties or self acquired property of Krishnacharya, then daughters of Bhimacharya and Gopalacharya are entitled to succeed to the property, in terms of amended Section 6 of Hindu succession Amendment Act. Accordingly, plaintiff No.1 is entitled for half share and plaintiff Nos.2 and 3 are entitled for 1/6th share in the suit schedule properties. - 17 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 23. The trial court factually accepted the contentions of the plaintiff and held that both plaintiffs and defendant No.1 are entitled for share. However, the trial Court denied the right of plaintiff No.1 on the ground that it was a ancestral joint family property and she is a female heir and therefore she is not entitled for share. It is also pertinent to note that deceased Gopalacharya died intestate leaving behind only daughter to succeed to the property. Under those circumstances, she is entitled to succeed to the property and entitled for half share in the property similarly plaintiff Nos. 2 and 3 and defendant No.1 each entitled for 1/6th share in the suit schedule properties. 24. The learned trial Judge erred in calculating the shares of plaintiffs and defendant No.1 and the trial court erroneously held that defendant No.1 one is entitled for 4/6th share of the suit properties and plaintiff Nos.2 and 3 each are entitled for 1/6th share in the suit schedule properties. The claim of the plaintiff No.1 was rejected. The said findings of the learned trial judge is erroneous, which needs interference by this Court. - 18 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 25. Defendants No. 2 to 10 have contended that they are bonafide purchasers of suit schedule properties for valuable consideration. From the address it appears that defendant No.2 to 10 are residents of Ilakal. The said Exs.D2 & 3 document clearly reveals that properties were not self acquired properties of Bhimacharya or Gopalacharya or the defendant No.1. When it was a joint family properties, and it is reflected in the revenue documents, the defendants No.2 to 10 should have taken care before purchasing the same. They should have contacted plaintiffs or taken their signature in the sale deed. These facts indicate that with the knowledge that it was Joint family properties, they purchased the same. They are not bonafide purchasers of the property. 26. While allotment of shares, the trial Court denied rights of plaintiff No.1 to share the property and the suit was dismissed against her. The said finding is erroneous and calculation of share is also erroneous. As already discussed above, plaintiff No.1 is entitled for half share and plaintiff No.2 and 3 each entitled for 1/6th share similarly defendant - 19 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 No.1 is entitled for 1/6th share in the suit properties and they are entitled for partition and separate portion of their shares in the suit property by metes and bounds. 27. It is pertinent to note that plaintiff No.1 did not challenge the said findings. The trial Court after holding that suit properties are Joint family properties, denying right of plaintiff No.1, is erroneous, which has resulted in injustice to the rights of the plaintiff No.1. Therefore this Court has to re-consider the rights of plaintiff No.1 under Order XLI Rule 22 read with Order XLI Rule 33 of the CPC. 28. Order XLI Rule 22 of CPC reads as under: “22. Upon hearing respondent may object to decree as it he had preferred a separate appeal. (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour, and may also take any cross-objection) to the decree which he could have taken by way of - 20 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. [Explanation-A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule file cross-objection in respect of the decree in so far as it is based on that finding notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.] (2) Form of objection and provisions applicable thereto-Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. 3[***] - 21 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. (5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.” (Emphasis supplied) 29. Order XLI Rule 33 reads as under: “Power of Court of Appeal-The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or - 22 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 objection [and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]” 30. In the above paragraph, it is discussed at length and no need of repetition. Plaintiff is entitled to ½ share in the property as it is denied by the trial Judge without justifiable reasons. Plaintiff No.1 did not file appeal. The mistake committed by trial Court need to be rectified to do justice to plaintiff No.1. Hence exercising power given by the above said provisions of law same has to be recalculated. 31. As already discussed above, plaintiff No.1 is entitled for half share in the suit schedule properties and plaintiff No.2, 3 and defendant No.1 together entitled for 1/6th share in the suit schedule property. They are entitled for partition and separate possession of their respective shares in the suit properties. - 23 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 32. For the aforesaid discussions appeal needs to be dismissed with the modification in the shares allotted to the plaintiffs as well as defendant No.1. 33. Accordingly, we proceed to pass following: ORDER The appeal is dismissed. The Judgement and decree dated 06.07.2018 passed O.S.No.18/2013 by the Senior Civil Judge, Hungund, is modified i.e shares to be allotted to the plaintiffs and defendant No.1 is modified. Plaintiff No.1 is entitled for half sale in the property, defendant Nos.2 and 3 each are entitled for 1/6th share and defendant No.1 is entitled for 1/6th share in the suit schedule properties. They are entitled for partition and separate possession of their shares in the suit property as well as they are entitled to collect compensation to be awarded by the defendants No.11 to 13. - 24 - NC: 2025:KHC-D:3909-DB RFA No. 100366 of 2018 The purchasers steps in to the shoes of defendant No.1 and their sale deed is valid only to an extent of 1/6th share held by defendant No.1. Draw decree accordingly. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE AG List No.: 1 Sl No.: 5