- 1 - HC-KAR NC: 2025:KHC-D:15198 WP No. 107999 of 2025 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 6TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE WRIT PETITION NO. 107999 OF 2025 (GM-CPC) BETWEEN: PULAKESHI S/O SHANKRAPPA MAKANNAVAR, AGE. 44 YEARS, OCC. AGRICULTURE, R/O. GUDAGERI-581 107, TQ. KUNDGOL, DIST. DHARWAD. … PETITIONER (BY SRI. S.G. KADADAKATTI, ADVOCATE) AND: 1. SHANKARAPPA S/O HANAMANTAPPA MAKANNAVAR, AGE. 88 YEARS, OCC. RETIRED TEACHER, R/O. GUDAGERI-581 107, TQ. KUNDGOL, DIST. DHARWAD. 2. ANIL KUMAR S/O SHANKRAPPA MAKANNAVAR, AGE. 44 YEARS, OCC. PRIVATE SERVICE, R/O. FLAT NO.D-10, 3RD FLOOR, SHRUSHTI APARTMENT, GANAKKAL VILLAGE, KENGERI HOBLI, BENGALURU SOUTH, BENGALURU-560 060. … RESPONDENTS (BY SRI. RAKESH M. BILKI, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT IN THE NATURE OF CERTIORARI FOR QUASHING THE ORDER DATED 27.09.2025 ON I.A. NO.12 AND 14 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, KUNDGOL IN O.S. NO.44/2023 VIDE ANNEXURE-P AND P1 BY ALLOWING THIS WRIT PETITION IN THE ENDS OF JUSTICE AND EQUITY. Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:15198 WP No. 107999 of 2025 THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE) This petition is filed under Articles 226 and 227 of the Constitution of India by the petitioner assailing the orders dated 27.09.2025 passed on I.A.No.12 filed under Section 151 of the Code of Civil Procedure, 1908, and I.A.No.14 filed under Order XXVI Rule 9 r/w Section 151 of the Code of Civil Procedure, 1908, in O.S.No.44/2023 on the file of Senior Civil Judge, Kundgol1. 2. I.A.No.12 is an application filed by defendant No.1/counter claimant, who sought direction against defendant No.2 to deposit the rent derived in respect of counter claim schedule Item No.1 property. 3. In another application, I.A.No.14, defendant No.1/counter claimant sought appointment of a Court Commissioner to conduct a spot inspection to ascertain the nature of property. The Trial court has allowed both applications. 1 Hereinafter referred to as the ‘Trial Court’ - 3 - HC-KAR NC: 2025:KHC-D:15198 WP No. 107999 of 2025 4. The suit is for partition and separate possession. As already noticed, defendant No.1 has filed counter claim in respect of counter claim schedule Item No.1 property claiming share in the property. 5. Learned counsel for the petitioner/defendant No.2 would submit that there is no need to deposit the amount in respect of the income earned from counter claim schedule Item No.1 property, as the said property is the self acquired property of father of defendants, and was transferred to defendant No.1’s father by the plaintiff. He further submits that the father had purchased the property from his independent income. Thus, would submit that no prima facie case has been made out to direct defendant No.2 to deposit the rental income. 6. Learned counsel for the counter claimants/ respondents would submit that the father had purchased the property from the income derived from the ancestral property, as such, defendant No.1/counter claimant is also having a share in the said property. Hence, the Trial Court was justified in directing the deposit of the amount. - 4 - HC-KAR NC: 2025:KHC-D:15198 WP No. 107999 of 2025 7. Learned counsel for defendant No.1 submits that defendant No.2 has issued a paper publication stating that his father i.e., plaintiff, is likely to transfer the property to the third party without obtaining the consent of defendant Nos.1 and 2. Thus, he would contend that the property is the joint family property. 8. Whether the property is self acquired or joint family property has to be ascertained at the time of final hearing after considering the entire evidence on record. 9. It is to be noticed that prima facie the property stands in the name of defendant No.2. Earlier, the property stood in the name of the father of the plaintiff. Prima facie, this indicates that the property is the self acquired property of the plaintiff. Whether the property is self acquired or joint family property is a matter to be decided after recording evidence on the relevant issues. 10. At this juncture, there is no need to direct defendant No.2 to deposit the rental amount. However, defendant No.2 shall furnish the accounts relating to the income derived from the - 5 - HC-KAR NC: 2025:KHC-D:15198 WP No. 107999 of 2025 counter claim schedule Item No.1 property, every three months, before the Trial Court. 11. Learned counsel for the petitioner/defendant No.2, at this juncture would submit that defendant No.2 is earning ₹9,000/- from house, which is located on the first floor of the building, and ₹3,000/- from one shop, which is located in the ground floor. He would further submit that remaining two shops are vacant. 12. Learned counsel for the respondents would submit that the rental income derived from the counter claim schedule Item No.1 property is much more than what is submitted before this Court. 13. The Karnataka Rent Act, 1999, in terms of Section 4 mandates that the rent agreement shall be in writing. The rent agreement is not produced. Defendant No.2 is at liberty to produce the rent agreement before the Trial Court. If it is not produced, the Trial Court by taking into other circumstances may draw adverse inference against defendant No.2 and may ascertain the rent from other evidence. - 6 - HC-KAR NC: 2025:KHC-D:15198 WP No. 107999 of 2025 14. For the aforementioned reasons this Court is of the view that there is no need to direct the defendant No.2 to deposit the rent amount and there is no need to appoint a Court Commissioner to ascertain the nature of the property. Hence, impugned orders are set-aside. However, the defendant No.2 has to be put on certain terms as under: a) Defendant No.2 shall furnish before the Trial Court the rent agreements in respect of the properties for which tenancy is created. b) Defendant No.2 shall furnish accounts, every three months, relating to the income derived from the counter claim schedule Item No.1 property. c) Defendant No.2 shall inform the Court regarding any escalation of rent as and when it occurs, as well as change of tenancy and creation of new tenancy in favour of tenants. e) In case the counter claim is decreed, then the Trial Court shall direct defendant No.2 to share the income - 7 - HC-KAR NC: 2025:KHC-D:15198 WP No. 107999 of 2025 from counter claim schedule No.1 property to the extent of the share of the counter claimant. f) The liberty is reserved to the parties to adduce evidence relating to the rent derived from counter claim schedule Item No.1 property. 15. Hence the following: ORDER a) The writ petition is allowed. b) The orders dated 27.09.2025 passed on I.A.No.12 filed under Section 151 of the Code of Civil Procedure, 1908, and I.A.No.14 filed under Order XXVI Rule 9 r/w Section 151 of the Code of Civil Procedure, 1908, in O.S.No.44/2023 on the file of Senior Civil Judge, Kundgol, are set aside. c) It is made clear that the opinion expressed relating to the nature of the property in the name of defendant No.2 is only a tentative - 8 - HC-KAR NC: 2025:KHC-D:15198 WP No. 107999 of 2025 opinion for the purpose of interlocutory order and shall not be construed as an opinion on the nature of the property in counter claim schedule Item No.1. d) Whether the property is self acquired or ancestral shall be considered based on the evidence to be led before the Trial Court. e) Defendant No.2 shall comply the directions at paragraph No.14. Sd/- (ANANT RAMANATH HEGDE) JUDGE PMP CT:BCK LIST NO.: 1 SL NO.: 14