- 1 - HC-KAR NC: 2025:KHC-D:10361 RFA No. 100346 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI REGULAR FIRST APPEAL NO. 100346 OF 2017 (PAR/POS-) BETWEEN: 1. 1a. 1b. RADHABAI D/O HEMARAJI GOULI SINCE DECEASED BY HER LR’S., ANITA, 54 YEARS, W/O RAJU PATARE, MADARMADDI, II CROSS, DIST. DHARWAD. GANGA, 45 YEARS, W/O RAMESH HAJARI @ GOULI, II CROSS, AZAD NAGAR, DHARWAD. …APPELLANTS (BY SRI. PRASHANT MOGALI, ADV) AND: 1. SMT. CHANDRABAI GOULI, 60 YEARS, W/O PARASHURAM, II CROSS, AZAD NAGAR, DIST: DHARWAD. 2. SMT. RUKHAMINI PATHARE 45 YEARS, W/O NANDU, II CROSS, AZAD NAGAR, DHARWAD, DIST: DHARWAD. 3. SMT. GANGA GOULI, 43 YEARS, W/O RAMESH, II CROSS, AZAD NAGAR, DIST: DHARWAD. 4. GOPAL GOULI, AGE: 42 YEARS, S/O PARASHURAM, II CROSS AZAD NAGAR, DIST. DHARWAD. 5. 5a. DEVARAJ S/O PARASHURAM GOULI SINCE DEAD BY HIS LRS, REKHA GOULI, 40 YEARS, W/O DEVARAJ, II CROSS, AZAD NAGAR, DHARWAD. 5b. AKAASH GOULI, 12 YEARS, S/O DEVARAJ, II CROSS, AZAD NAGAR, DHARWAD. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.08.30 12:06:22 +0530 - 2 - HC-KAR NC: 2025:KHC-D:10361 RFA No. 100346 of 2017 SINCE MINOR REP BY HIS MOTHER RESPONDENT NO.5A, REKHA W/O. DEVARAJ GOULI. 6. PRABHU GOULI, AGE: 33 YEARS, S/O PARASHURAM, II CROSS AZAD NAGAR, DHARWAD. 7. BANABAI GOULI, 59 YEARS, W/O UDHORAM, JAKANIBHAVI ROAD, MOHANSING CHAWL, DIST: DHARWAD. 8. MANJUNATH GOULI, AGE: 42 YEARS, S/O UDHORAM, JAKANIBHAVI ROAD, MOHANSING CHAWL, DIST: DHARWAD. 9. RAVI GOULI, AGE: 40 YEARS, S/O UDHORAM, JAKANIBHAVI ROAD, MOHANSING CHAWL, DIST: DHARWAD. 10. NANDA CHOUDHARI, 48 YEARS W/O NARESH, JAKANIBHAVI ROAD, MOHANSING CHAWL, DIST: DHARWAD. 11. HEMARAJ GOULI, 36 YEARS S/O UDHORAM, JAKANIBHAVI ROAD, MOHANSING CHAWL, DIST: DHARWAD. 12. SUNIL GOULI, 34 YEARS S/O UDHORAM, JAKANIBHAVI ROAD, MOHANSING CHAWL, DIST: DHARWAD. …RESPONDENTS (BY SRIYUTHS. P.R. BENTUR AND SHIVAPRASAD S. PATIL, ADVS FOR R1, R4, R5(A & B), R6, NOTICE TO R2, R9 & R10 ARE HELD SUFFICIENT, R7 IS ABATED, NOTICE TO LR’S OF DECEASED R7 IS DISPENSED WITH, NOTICE TO R3, R8, R11 & R12 ARE SERVED) THIS RFA IS FILED U/SEC.96 OF CPC., AGAINST THE JUDGMENT & DECREE DATED 31.07.2017 PASSED IN O.S. NO.325/2012 ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE AND CJM, DHARWAD, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:10361 RFA No. 100346 of 2017 CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellants challenging the judgment and the preliminary decree dated 31.07.2017 passed in O.S.No.325/2012 by the learned III Additional 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 plaintiff and the respondents were the defendants. 3. Brief facts, leading rise to the filing of this regular first appeal, are as follows: 4. The plaintiff filed a suit against the defendants for partition and the separate possession. It is the case of the plaintiff that one Hemaraj was the propositus. He had a wife by name Rukho. They had three children, i.e., - 4 - HC-KAR NC: 2025:KHC-D:10361 RFA No. 100346 of 2017 Radhabai (plaintiff), the daughter, Parashuram and Udhoram are the sons. Defendant Nos.1 to 6 are the legal heirs of the deceased Parashuram, defendant Nos.7 to 13 are the legal heirs of Udhoram. Parashuram and Udhoram are no more. It is contended that the suit schedule properties are the joint family properties of the plaintiff and the defendants. The plaintiff and the defendants are the members of the Hindu undivided joint family, and no partition effected between the plaintiff and the defendants. Plaintiff demanded for partition and the separate possession, but the defendants refused to effect the partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and the separate possession. 5. The defendants filed a written statement contending that after the demise of Hemaraj, Parashuram and Udhoram got divided the properties between them regarding the suit schedule properties in 1969. It is contended that Hemaraj gifted a property bearing CTS No.390/D of Market Fort, Dharwad, in favour of the - 5 - HC-KAR NC: 2025:KHC-D:10361 RFA No. 100346 of 2017 plaintiff, and the said property is not included in the suit schedule properties. Hence, the suit for partial partition is not maintainable. It is contended that based on the partition effected in 1969 between Parashuram and Udhoram, the names of Parashuram and Udhoram were entered in the revenue records, and after their demise, the names of the defendants were entered in the revenue records. It is contended that Hemaraj died in 1954, and hence, the plaintiff is not entitled to claim a share in the suit schedule properties. The plaintiff is in permissive possession of the property bearing CTS No.356/2/M. Hence, there is no cause of action to file a suit for partition and separate possession, and the cause of action shown in the plaint is frivolous and imaginary. Hence, prays to dismiss the suit. 6. The trial Court, based on the pleadings of the parties, framed the issues as follows: (1) Whether the plaintiff proves that the suit properties are joint family properties? - 6 - HC-KAR NC: 2025:KHC-D:10361 RFA No. 100346 of 2017 (2) Whether plaintiff proves that she is entitled for partition and separate possession of the suit properties? If so, what would be her share? (3) Whether the defendants No.1 and 3 to 6 prove that the suit is bad for non-inclusion of all the joint family properties? (4) What order or decree? 7. To substantiate her case, the plaintiff examined herself as P.W.1, and marked 18 documents as Exs.P1 to Ex.P18. In rebuttal, defendant No.4 examined as D.W.1, but no documents were marked. 8. The trial court, after hearing both sides and assessing the verbal and documentary evidence, answered issue Nos.1 to 3 in the negative, and issue No.4 as per the final order. The suit of the plaintiff was dismissed, holding that plaintiff has failed to prove that the suit properties are joint family properties; plaintiff failed to prove that she is entitled for partition and separate possession of the suit properties and defendant Nos.1 and 3 to 6 proved that the suit is bad for non-inclusion of all the joint family properties. - 7 - HC-KAR NC: 2025:KHC-D:10361 RFA No. 100346 of 2017 9. The plaintiff, aggrieved by the judgment and the preliminary decree passed in O.S.No.325/2012 by the III Additional Senior Civil Judge and CJM, Dharwad, filed this Regular First Appeal. 10. Heard the learned counsel for the plaintiff and the learned counsel for the defendants. 11. Learned counsel for the plaintiff submits that admittedly, the suit schedule properties were owned and possessed by Hemaraj. The plaintiff being the daughter is entitled to a share in the same manner as that of a son. He submits that the trial court committed an error in recording its finding that the plaintiff is not a coparcener and she is not entitled to a share in the suit schedule properties. He submits that there is no partition is effected between Parashuram and Udhoram, as contended by the defendants in the written statement. The said aspect was not properly considered by the trial court and it committed - 8 - HC-KAR NC: 2025:KHC-D:10361 RFA No. 100346 of 2017 an error in dismissing the suit of the plaintiff. Hence, on these grounds, he prays to allow the appeal. 12. Per contra, learned counsel for the defendants submits that admittedly, Hemaraj died in 1954, and as of the date of the death of Hemaraj, only male coparceners were entitled for a share in the suit schedule properties. She submits that Section 8 of the Hindu Succession Act is prospective in nature and no retrospective effect cvan be given to Section 8. She submits that the trial court was justified in dismissing the suit of the plaintiff. Hence, prays to dismiss the appeal. 13. Perused the records and considered the submissions of the learned counsel for the parties. 14. The points that would arise for my consideration are; 1) Whether the plaintiff proves that the plaintiff and the defendants are the members of the Hindu undivided joint family, and the suit schedule properties are the joint family properties of the plaintiff and the defendants? - 9 - HC-KAR NC: 2025:KHC-D:10361 RFA No. 100346 of 2017 2) Whether the defendants prove that there was a prior partition in 1969 between the male coparceners Parashuram and Udhoram, i.e., siblings of the plaintiff? 3) Whether the plaintiff proves that the judgment and the preliminary decree passed by the trial court is perverse, arbitrary and erroneous? 4) What order or decree? 15. Point Nos.1 and 2 are interlinked to each other, hence, are taken up together, to avoid the repetition of facts. Point No.1 and 2. 16. The plaintiff filed a suit against the defendants for partition and the separate possession. The plaintiff to substantiate her case, examined herself as P.W.1. She deposed that the suit schedule properties are the joint family properties of the plaintiff and the defendants, and the plaintiff and defendants are members of a Hindu Joint family, and no partition effected between the plaintiffs and the defendants. To prove her case, plaintiff produced the documents. Ex.P1 is a certified copy of the Ruled - 10 - HC-KAR NC: 2025:KHC-D:10361 RFA No. 100346 of 2017 Card/property extract regarding CTS No.908. Ex.P2 is a certified copy of the Ruled Card/property extract regarding CTS No.909. Ex.P3 is a certified copy of the Ruled Card/property extract regarding CTS No.910/A. Ex.P4 is a certified copy of the Ruled Card/property extract regarding CTS No.910/B. Ex.P5 is a certified copy of the Property Register Card regarding CTS No.356/2/F. Ex.P6 is a certified copy of the Property Register Card regarding CTS No.356/2/G. Ex.P7 is a certified copy of the Property Register Card regarding CTS No.356/2/H. Ex.P8 is a certified copy of the Property Register Card regarding CTS No.356/2/M. Ex.P9 is a certified copy of the Property Register Card regarding CTS No.356/2/J. Ex.P10 is a certified copy of the Property Register Card regarding CTS No.356/2/K. Ex.P11 is a certified copy of the Property Register Card regarding CTS No.356/2/L. Ex.P12 is a certified copy of the Property Register Card regarding CTS No.389/A. Ex.P13 is a certified copy of the Property Register Card regarding CTS No.389/B. Ex.P14 is a - 11 - HC-KAR NC: 2025:KHC-D:10361 RFA No. 100346 of 2017 certified copy of the Property Register Card regarding CTS No.389/C. Ex.P15 is a certified copy of the Property Register Card regarding CTS No.390/A. Ex.P16 is a certified copy of the Property Register Card regarding CTS No.390/B. Ex.P17 is a certified copy of the Property Register Card regarding CTS No.390/C and Ex.P18 is a certified copy of the Property Register Card regarding CTS No.356/2/A. 17. During the cross-examination, P.W.1 has admitted that, at the time of her marriage, her father was alive, and he died in 1954. In rebuttal, defendant No.4 was examined as D.W.1. He re-iterated the written statement averments in his examination-in-chief. He deposed that there was a partition between Parashuram and Udhoram in 1969, and on the basis of the said partition, the names of Parashuram and Udhoram were entered in the revenue records. - 12 - HC-KAR NC: 2025:KHC-D:10361 RFA No. 100346 of 2017 18. Admittedly, the plaintiff’s father, Hemaraj, died in 1954. The Hon'ble Apex Court in the case of ERAMMA VS. VEERUPANNA AND ORS. reported in AIR 1966 SC 1879 held in para Nos.4 and 5, as follows: “4. There is nothing in the language of this section to suggest that it has retrospective operation. The words "The property of a male Hindu dying intestate" and the words "shall devolve" occurring in the section make it very clear that the property whose devolution is provided for by that section must be the property of a person who dies after the commencement of the Hindu Succession Act. Reference may be made, in this connection, to S.6 of the Act which states: "when a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession - 13 - HC-KAR NC: 2025:KHC-D:10361 RFA No. 100346 of 2017 as the case may be, under this Act and not by survivorship. 5. It is clear from the express language of the section that it applies only to coparcenary property of the male Hindu holder who dies after the commencement of the Act. It is manifest that the language of S. 8 must be construed in the context of S.6 of the Act. We accordingly hold that the provisions of S.8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act came into force i.e., where succession opened before the Act, S.8 of the Act will have no application. (Emphasis supplied) 19. The Division Bench of Hon’ble Bombay High Court in the case of RADHABAI BALASAHEB SHIRKE, THROUGH HER HEIRS AND L.RS. AND OTHERS VS KESHAV RAMACHANDRA JADHAV AND OTHERS reported in 2024 SCC ONLINE BOM 3541, in paragraphs 22 and 35 held as follows: “22. Section 6 post amendment Act of 2005 provides that a daughter shall have a right in the co- parcenary property as she would have had if she had - 14 - HC-KAR NC: 2025:KHC-D:10361 RFA No. 100346 of 2017 been a son. If the intention prior to the enactment of the Hindu Succession Act was to give inheritance right to a daughter then the provisions similar to Section 6(1) of the 2005 Amendment Act would have been incorporated in the Act of 1937. The fact that Section 3 of the 1937 Act expressly provides only for a “widow” to be treated as a “son” for computing her limited interest to share and to seek partition as a male owner clearly shows that at the relevant time prior to 1956, a daughter would not have any inheritance right if her father died prior to 1956. 35. In view of above, we answer the question referred to us by holding that a daughter would not have any right, either limited or absolute, by inheritance prior to coming into force of the Act of 1956 in the property of her deceased father who died prior to 1956 leaving behind him in addition to such daughter, his widow as well.” 20. Admittedly, in the instant case, Hemaraj died in 1954, i.e., prior to the enactment of the Hindu Succession Act, 1956, and the male coparceners succeed to the - 15 - HC-KAR NC: 2025:KHC-D:10361 RFA No. 100346 of 2017 properties by way of survivorship and not by succession. Since the plaintiff’s father died prior to 1956, she is not entitled for any share in the suit schedule properties. 21. The defendants contended that there was a partition between Parashuram and Udhoram in 1969, and the plaintiff has produced the records which discloses that, based on the partition effected between Parashuram and Udhoram, their names were entered in the revenue records. Further, during the life of Hemaraj, he gifted the property bearing CTS No.390/D in favour of the plaintiff under a registered gift deed dated 03.05.1954, and the plaintiff is in possession and enjoyment of the property bearing CTS No.390/D. In view of the prior partition effected between Parashuram and Udhoram, the suit schedule properties cannot be considered as a joint family properties as of the date of the filing of the suit. The plaintiff has failed to establish that the plaintiff and the defendants are members of a Hindu undivided joint family, and the suit schedule properties are the joint family - 16 - HC-KAR NC: 2025:KHC-D:10361 RFA No. 100346 of 2017 properties of the plaintiff and the defendants as of the date of the filing of suit. Further, the defendants proved that there was a partition in 1969 between Parashuram and Udhoram. As the plaintiff has failed to prove that the suit schedule properties are the joint family properties of the plaintiff and the defendants, the plaintiff is not entitled to a share in the suit schedule properties. The trial court was justified in dismissing the suit of the plaintiff. In view of the above discussion, I answer point No.1 in the negative and point No.2 in the affirmative. Point No.3. 22. The trial court considering the entire evidence on record has rightly held that the plaintiff has failed to establish that the plaintiff and the defendants are the members of a Hindu undivided joint family. The partition was effected between Parashuram and Udhoram in 1969 and their names were entered in the revenue records. The Hon’ble Apex Court in the case of DIGAMBER ADHAR PATIL - 17 - HC-KAR NC: 2025:KHC-D:10361 RFA No. 100346 of 2017 VS DEVRAM GIRIDHAR PATIL (DIED) AND ANOTHER reported in AIR 1995 SC 1728, held that the entries in the Record of Rights, which was maintained in the official course of business, is a relevant piece of evidence. The mutation extract was prepared by a Public Officer while discharging his duties. Entries in the revenue records prove the factum of partition. Considering the proposition of law laid down in DIGAMBER ADHAR PATIL (supra), the trial court was justified in dismissing the suit of the plaintiff. I do not find any error in the impugned judgment and decree passed by the trial court. 23. The learned counsel for the plaintiff has placed reliance on the judgment of the Hon’ble Apex Court in the case of VINEETA SHARMA VS RAKESH SHARMA reported in AIR 2020 SC 3717. I have perused the judgment. Admittedly, the suit schedule properties are not the ancestral properties of Hemaraj. The suit schedule properties are the self-acquired properties of the plaintiff’s father, and after his demise, the suit schedule properties - 18 - HC-KAR NC: 2025:KHC-D:10361 RFA No. 100346 of 2017 devolve upon the male members of the family by survivorship and not by succession, as Hemaraj died in 1954. The suit is not under Section 6, but under Section 8 of the Hindu Succession Act. As discussed above, considering the proposition of law laid down by the Hon’ble Apex Court in the case of ERAMMA (supra), the succession opened before the Act came into force, and Section 8 of the Hindu Succession Act had no application. Hence, the judgment relied upon by the learned counsel for the plaintiff in VINEETA SHARMA (Supra) is not applicable to the present case on hand. 24. In view of the above discussion, I answer point No.3 in the negative. Point No.4. 25. In view of the above discussion, I proceed to pass the following; ORDER i) The Regular First Appeal is dismissed. - 19 - HC-KAR NC: 2025:KHC-D:10361 RFA No. 100346 of 2017 ii) The judgment and decree dated 31.07.2017 passed in O.S.No.325/2012 by the learned III Additional Senior Civil Judge and CJM, Dharwad, is hereby confirmed. No order as to the cost. In view of dismissal of the appeal, pending I.A’s, if any, do not survive for consideration, and accordingly, disposed of. Sd/- (ASHOK S. KINAGI) JUDGE MBS CT: BSB List No.: 1 Sl No.: 4