- 1 - HC-KAR NC: 2025:KHC-D:10162 CRP No. 100021 of 2018 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 13TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CIVIL REVISION PETITION NO. 100021 OF 2018 BETWEEN: SRI. PUNDALIK HANUMANTAPPA KULESANAVAR AGE: ABOUT 46 YEARS, OCC: AGRICULTURE, R/O: KADKANAKOPPA, POST: UGNIKERI, TQ: KALAGHATAGI, DIST: DHARWAD-581204. …PETITIONER (BY SRI ARAVIND D. KULKARNI, ADVOCATE.) AND: 1. GEETA ASHOK HEBBAL AGE: 34 YEARS, OCC: AGRICULTURE, R/O: KURVINAKOPPA, TQ: KALAGHATAGI, DIST: DHARWAD-580114. 2. MANJULA D/O. NINGAPPA MORE AGE: 28 YEARS, OCC: HOUSEHOLD WORK, R/O: KURVINAKOPPA, TQ: KALAGHATAGI, DIST: DHARWAD-580114. 3. SUJATA D/O. NINGAPPA MORE AGE: 26 YEARS, OCC: HOUSEHOLD WORK, R/O: KURVINAKOPPA, TQ: KALAGHATAGI, DIST: DHARWAD-580114. 4. NINGAPPA S/O. KAREPPA MORE AGE: 66 YEARS, OCC: AGRICULTURE, R/O: KADANAKOPPA, TQ: KALAGHATAGI, DIST: DHARWAD-581196. 5. DEVENDRAPPA S/O. NINGAPPA MORE AGE: 32 YEARS, OCC: AGRICULTURE, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.08.16 10:23:20 +0530 - 2 - HC-KAR NC: 2025:KHC-D:10162 CRP No. 100021 of 2018 R/O: KADANAKOPPA, TQ: KALAGHATAGI, DIST: DHARWAD-581196. AS PER ORDER DATED 11.12.2018, R5 IS DELETED. 6. MEENAKSHI D/O. NINGAPPA MORE AGE: 20 YEARS, OCC: STUDENT, R/O: KADANAKOPPA, TQ: KALAGHATAGI, DIST: DHARWAD-581196. ITS NATURAL GUARDIAN MOTHER SMT. PARAVATHI W/O. NINGAPPA MORE, AGE: 52 YEARS. 7. GANGADHAR S/O. BASAPPA ANGADI AGE: 70 YEARS, OCC: AGRICULTURE, R/O: BASAVARAJ BUILDING, DESHPANDE NAGAR, HUBBALLI, TQ: HUBBALLI-580029. …RESPONDENTS (BY SRI SUNIL S. DESAI, ADVOCATE FOR R7; R.4 AND R.6 – NOTICE SERVED; R5 – DECEASED; R3 – SERVICE OF NOTICE DISPENSED WITH; R1 AND R2 – SERVICE OF NOTICE HELD SUFFICIENT.) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CIVIL PROCEDURE CODE, 1908, PRAYING TO SET ASIDE IMPUGNED ORDER AT ANNEXURE-E, DATED 07.02.2018, PASSED IN O.S.NO.206/2012, ON THE FILE OF THE CIVIL JUDGE AND JMFC COURT, KALAGHATAGI, AND BY ALLOWING I.A. FILED UNDER ORDER 7 RULE 11 OF CPC, AND THEREBY REJECT PLAINT I.E., REJECT ANNEXURE-A BY ALLOWING ANNEXURE-C AND ETC.,. THIS PETITION COMING FOR ORDERS THIS DAY, ORDER IS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:10162 CRP No. 100021 of 2018 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) On perusing the impugned order, service of notice to respondent No.3 is dispensed with since service of notice to him is not required. 2. Heard the arguments. 3. The petitioner has filed this revision petition against the order dated 07.02.2018, passed by the Civil Judge and JMFC, Kalaghatagi, on the application filed under Order VII Rule 11 read with Section 151 of the Civil Procedure Code, 1908 (‘CPC’ for short), in O.S.No.206/2012. 4. The brief facts leading to this revision petition are that, plaintiffs 1 to 3 viz. Geeta and two others, have filed a suit for partition and separate possession of the suit schedule properties contending that the suit schedule properties are the ancestral properties. Defendant No.5 has appeared before the Court and filed his written - 4 - HC-KAR NC: 2025:KHC-D:10162 CRP No. 100021 of 2018 statement. Issues were framed and when the case was posted for plaintiffs’ evidence, defendant No.5 filed application I.A.No.8 under Order VII Rule 11 read with section 151 of CPC, to reject the plaint on the ground that prior to birth of plaintiff No.1-Geeta, her grandfather Keerappa died on 11.03.1983. Plaintiff No.1 took birth on 10.04.1986. This clearly discloses as per the birth certificate of plaintiff No.1. As on the date of death of grandfather of plaintiff No.1, the plaintiff No.1 was not born. Hence, the plaintiffs have no right to claim against their father. Hence, the suit is not maintainable. The plaintiffs have filed their objection to the said application contending that the application is filed on false, frivolous and vexatious grounds. Therefore, the same is neither maintainable in law or on facts and the same is liable to be rejected. 5. Having heard the arguments of both the learned counsels, the trial Court has rejected the - 5 - HC-KAR NC: 2025:KHC-D:10162 CRP No. 100021 of 2018 application I.A.No.8 filed under Order VII Rule 11 read with Section 151 of CPC assigning the following reasons. “8. Point No.1: It is the suit filed by the plaintiffs for the relief of partition and separate possession of their legitimate share in the suit property and for the relief of declaration to declare that sale agreement obtained by defendant no.4 and 5 from defendant no.1 are null and void not binding on plaintiff share. 9. In pursuance to the suit summons defendant no.4 and 5 appeared through their respective counsel and filed written statement denying the entire averments made in the plaint. The defendant no.5 filed the written statement denying the relationship between plaintiffs and defendant no.1 and also the nature of the property. The defendant no.5 further contended that suit is filed in active collusion of plaintiffs and defendant no.1, the defendant no.1 has agreed to sell part of the suit property in order to meet his family necessities and accordingly entered into agreement of sale. Since defendant no.1 not come forward to execute the sale deed the defendant no.5 filed the suit specific performance and obtained the decree and sale deed is executed in favour of defendant no.5. Now the plaintiffs filed the suit for partition on false and frivolous grounds and same is liable to be dismissed. 10. During pendency of the suit when the case is set down for plaintiff evidence defendant no.5 filed present application seeking rejection of plaint. In the application it is stated - 6 - HC-KAR NC: 2025:KHC-D:10162 CRP No. 100021 of 2018 that since plaintiff no.1 taken birth after death of her grandfather plaintiffs are not entitled to claim for partition against their father as per the proposition laid down by Hon'ble Apex Court in Uttam's case. The plaintiffs have contended that the suit properties was inherited by defendant no.1 from his father. The suit property is the ancestral and joint family property of plaintiffs, defendant no.1 has not got absolute right to alienate the suit property. Moreover the suit property is not sold prior to birth of plaintiffs, the decision relied by the defendant no.5 is not applicable to present case as the property is inherited by defendant no.1 from his ancestors and hence application is liable to be rejected. It is further contended that date of birth of plaintiffs is not material, date of alienation is more important to decide the rights of the parties in the present case. 11. The suit filed by the plaintiffs against their father and also purchasers for the relief of declaration and partition. It is the case of the plaintiffs that the suit property is the ancestral property of plaintiffs and defendant no.1 and same was inherited by defendant no.1 from his ancestors therefore plaintiffs are also having rights to claims partition in the suit property. The plaintiffs have also produced certified copies of the mutation extract dated 10.11.1952, 25.7.1964 and 20.12.1988. On perusal of mutation extracts of plaintiffs it is no doubt suit property is received by defendant no.1 after death of his father and suit properties are ancestral in nature. Under the Hindu Succession Amendment Act 2005 the daughters have been conferred co-parcener status. As soon as the suit property received by - 7 - HC-KAR NC: 2025:KHC-D:10162 CRP No. 100021 of 2018 defendant no.1 from his father it becomes his absolute property and he can alienate the same for legal necessity however as soon as plaintiffs taken birth the suit property at the hands of defendant no.1 does not become his absolute property and it has to be devolve as per provisions of Section 6 of Hindu Succession Act. The defendant no.1 has no absolute right to alienate the property by overcoming other co- parceners right in the suit property. It appears the defendant no.5 has mis-directed himself and filed present application seeking rejection of plaint on the ground that plaintiff no.1 has not taken birth as on the date of death of their grandfather and not entitled to claim partition relief. Moreover the alienation which has taken place in the year 2010 made by the defendant no.1 in favour of defendant no.5 is challenged by the plaintiffs. As soon as plaintiffs taken birth defendant no.1 has not got absolute right to alienate the suit property, however as a Karta of the joint family he is having right to alienate the suit property for legal necessity that does not mean plaintiffs have no right to challenge the said alienation. The rights of the plaintiffs has to be adjudicated on merits, without conducting full fledged trial their rights cannot be adjudicated. Merely by considering the date of death of plaintiffs ancestors the plaint cannot be rejected. On perusal of the plaint averments the suit from statement made in the plaint is not barred by any law and hence suit is requires to be adjudicated on merits therefore application filed by defendant no.5 is deserves to be dismissed as it is devoid of merits. Accordingly I answered Point no.1 in the Negative.” - 8 - HC-KAR NC: 2025:KHC-D:10162 CRP No. 100021 of 2018 6. Learned counsel appearing on behalf of revision petitioner in his arguments has reiterated the grounds urged in the memorandum revision petition. 7. On a careful examination of the material placed before the Court, I do not find any error or illegalities/infirmities in the impugned order passed by the trial Court. The grounds urged by the petitioner may be considered on merits on full-fledged trial. At this stage, it is not just and proper to express any opinion on the merits of the case. 8. With this observation, I proceed to pass the following: ORDER i) The petition is dismissed. ii) No order as to costs. Sd/- (G BASAVARAJA) JUDGE MRK CT-CMU LIST NO.: 1 SL NO.: 3