- 1 - NC: 2025:KHC-D:2029 RSA No. 100707 of 2014 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 30TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100707 OF 2014 (DEC/INJ) BETWEEN: SHRI HUCHCHAPPA S/O CHANNABASAPPA DYAVANKATTI @ MUDDER SINCE DECEASED BY HIS LEGAL REPRESENTATIVES 1. SMT. GANGAMMA W/O HUCHCHAPPA DYAVANAKATTI @ MUDDER AGE: 70 YEARS, R/O. BYADAGI, TQ:DIST: HAVERI – 581106. 2. SMT. KOTRAMMA @ ASHA W/O VEERABHADRAPPA SOWDRI AGE: 38 YEARS, R/O. BASAPPA LAYOUT, R.M.E., 2ND STAGE, DOOR NO. 15, NAGASHETTIHALLI, BANGALORE -560001. 3. SHRI BASAVARAJ S/O HUCHCHAPPA DYAVANAKATTI @ MUDDER AGE. 44 YEARS, R/O. BYADAGI TQ:DIST: HAVERI – 581106. 4. SMT. KALAVATI D/O HUCHCHAPPA DYAVANAKATTI @ MUDDER AGE: 40 YEARS, R/O. BYADAGI, TQ:DIST: HAVERI – 581106. 5. SHRI SURESH S/O HUCHCHAPPA DYAVANAKATTI @ MUDDER AGE: 38 YEARS, R/O. BYADAGI, TQ:DIST: HAVERI – 581106. …APPELLANTS (BY SRI. VIHWANATH HEGDE, ADVOCATE) V N BADIGER Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench Date: 2025.02.05 15:17:07 +0530 - 2 - NC: 2025:KHC-D:2029 RSA No. 100707 of 2014 AND: 1. SHRI. KOTRESH S/O CHANNABASAPPA DYAVANAKATTI @ MUDDER AGE: 60 YEARS, R/O. BYADAGI, TQ: DIST: HAVERI-581106. R.1A. VISHALAKSHI W/O. KOTRESH DYAVANAKATTI AGE.65 YEARS, OCC. HOUSEHOLD, R/O. NEAR PANDURANGA TALKIES, BYADAGI, TQ. BYADGI, DIST. HAVERI-581106. R.1B. SARVAMANGALA @ MANGALA W/O SURESH ARALI, AGE. 40 YEARS, OCC. HOUSEHOLD, R/O NEHRU NAGAR, BYADAGI, TQ. BYADAGI, DIST HAVERI-581106. R.1C. MURUGESHI S/O. KOTRESH DYAVANAKATTI AGE.38 YEARS, OCC. BUSINESS, R/O. NEAR PANDURANGA TALKIES, BYADAGI, TQ. BYADGI, DIST. HAVERI-581106. R.1D. DEEPA W/O. REVANASIDDA BASINGNAVAR AGE. 36 YEARS, OCC. HOUSEHOLD, R/O. HALAHALLI, TQ. RANEBENNUR, DIST. HAVERI-581115. 2. SHRI GIDDUBABU S/O HUSSAINSAB KALYAL AGE: 60 YEARS, R/O. BYADAGI, TQ:DIST:HAVERI – 581106. 3. SHRI GANGADDHAR S/O HUCHCHAPPA DYAVANAKATTI @ MUDDER AGE: 44 YEARS, R/O. BYADAGI, TQ: DIST: HAVERI – 581106. …RESPONDENTS (BY SRI. SHRIKANT T. PATIL, SRI. ROHIT S. PATIL AND SMT. KARUNA MUDHOL, ADVOCATES FOR R1(A TO D) & R2; R3- APPEAL ABATED) THIS RSA IS FILED U/S.100 OF CPC, PREYING TO, SET ASIDE THE JUDGMENT AND DECREE DATED 09.07.2014 PASSED BY II ADDITIONAL DISTRICT JUDGE AT HAVERI SITTING AT RANEBENNUR IN RA NO.103/2010 AND JUDGMENT AND DECREE DATED 24.08.2010 PASSED BY ADDITIONAL SENIOR CIVIL JUDGE, RANEBENNUR ITENERATE COURT AT BYADAGI IN OS NO.157/04 BE - 3 - NC: 2025:KHC-D:2029 RSA No. 100707 of 2014 CONFIRMED BY ALLOWING THIS APPEAL AND CONSEQUENTLY THE SUIT AT OS NO.157/04 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE RANEBENNUR ITENERATE COURT BYADAGI BE DECREED WITH COST THROUGHOUT IN THE INTEREST OF JUSTICE & ETC., THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH) 1. This appeal is preferred by the legal representatives of the original plaintiff challenging the judgment and decree dated 09.07.2014 in R.A.No.103/2010 on the file of the II Additional District Judge, Haveri (sitting at Ranebennur)1 allowing the appeal and setting aside the judgment and decree dated 24.08.2010 in O.S.No.157/2004 on the file of the Additional Senior Civil Judge, Moving Court, Byadagi2 partly decreeing the suit of the plaintiff. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 4 - NC: 2025:KHC-D:2029 RSA No. 100707 of 2014 3. It is the case of the plaintiff that the original propositus Channabasappa had two children namely Huchchappa (original plaintiff) and Kotresh (defendant No.1). Defendant no.2 is the purchaser of suit schedule property from defendant No.1. It is stated in the plaint that the suit property bearing CTS No.1137/1A/1A and CTS No.1137/1A/1 situate at Byadagi are part and parcel of CTS No.1137. It is stated in the plaint that the suit schedule property was purchased by the plaintiff in the year 1953 for total consideration of Rs.4,000/- and accordingly the plaintiff was in possession of the suit property. It is also stated in the plaint that the plaintiff was minor at the time of purchasing the suit property and therefore he has been represented by his father as a natural guardian. It is stated that the sale consideration was given by the maternal grandmother of the plaintiff to purchase the suit schedule property and accordingly the suit schedule property is belonging to the plaintiff. Hence, the plaintiff has filed O.S.No.157/2004 seeking relief of declaration against the defendants. - 5 - NC: 2025:KHC-D:2029 RSA No. 100707 of 2014 4. On service of notice, defendant No.1 entered appearance and filed written statement and pleaded that the father of plaintiff and defendant No.1 had suit schedule property bearing CTS No.1137/1A and same was purchased by his father and Channabasspa in the year 1953 in the name of his minor son – plaintiff. It is the case of the defendant No.1 that the property in question was purchased in the name of the plaintiff through the income of the joint family. Accordingly, defendant No.1 contended that, the suit schedule property is a joint family property of the parties. It is also the case of defendant No.1 that there was a partition during 1991-92 and in the said partition some of the properties have been divided between the plaintiff and defendant No.1. It is also stated that the plaintiff and defendant No.1 had executed a family arrangement deed on 11.12.1996 and pursuant to the same, revenue records have been changed and therefore, it is the contention of defendant No.1 that the property in question has been fallen to the share of defendant No.1 as per the family arrangement dated - 6 - NC: 2025:KHC-D:2029 RSA No. 100707 of 2014 11.12.1996 and accordingly sought for dismissal of the suit. It is also stated that, defendant No.1 has sold the suit schedule property in favour of defendant No.2 as per the registered sale deed dated 19.02.2005 and accordingly sought for dismissal of the suit. 5. The Trial Court based on the pleadings on record, formulated issues and additional issues for its consideration. In order to establish their case, the plaintiff has examined three witnesses as PW.1 to PW.3 and got marked 14 documents as Exs.P.1 to P.14. On the other hand, defendants have examined six witnesses as DW.1 to DW.6 and got marked 24 documents as Exs.D.1 to D.24. 6. The Trial Court after considering the material on record, by its judgment and decree dated 24.08.2010 decreed the suit in part and feeling aggrieved by the same, defendant No.1 has preferred R.A.No.103/2010 and the said appeal was contested by the plaintiff. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 09.07.2014, - 7 - NC: 2025:KHC-D:2029 RSA No. 100707 of 2014 allowed the appeal and as such set aside the decree passed by the Trial Court in O.S.No.157/2004. Feeling aggrieved by the same, the legal representatives of the original plaintiff have presented this appeal. 7. This Court vide order dated 31.01.2023, formulated the following substantial question of law: “Whether the First Appellate Court is justified in reversing the judgment and decree passed by the Trial Court by accepting the plea of partition putforth by the defendant No.1 in terms of Ex.D3, an un-registered family arrangement dated 11.12.1996 and holding it to be Joint Family property, when admittedly the suit property was purchased in the name of Huchappa in terms of registered deed of sale dated 04.02.1953 as per Ex.P7.” 8. I have heard the learned counsel appearing for the parties and perused the records. 9. It is the argument advanced by the learned counsel appearing for the appellants that the father of the plaintiff – Huchhappa had purchased the suit schedule property during 1953 and at that point of time the plaintiff - 8 - NC: 2025:KHC-D:2029 RSA No. 100707 of 2014 was minor represented by his father and accordingly he submitted that the suit schedule property in the sale deed is to be considered as self-acquired property of the plaintiff. He also submitted that the sale consideration was given by the maternal grandmother of the plaintiff and therefore, the said property cannot be considered as a joint family property of the parties. 10. Nextly, it is contended by the learned counsel appearing for the appellants by inviting attention of the Court to the family arrangement deed dated 11.12.1996 (Ex.D.3) and contended that since the said document compulsorily requires registration and therefore, the said document at Ex.D.3 cannot be considered as a document to divide the suit schedule property between the plaintiff and defendant No.1 and accordingly sought for interference of this Court. 11. Learned counsel appearing for the appellants to buttress his argument, referred to the judgment of the Hon’ble Supreme Court in the case of Kale & Others vs. - 9 - NC: 2025:KHC-D:2029 RSA No. 100707 of 2014 Deputy Director Of Consolidation Others reported in 1976 3 SCC 119 and submitted that the family arrangement compulsorily requires registration under Section 17(1)(b) of the Indian Registration Act and accordingly sought for interference of this Court. 12. Per contra, learned counsel appearing for the respondents No.1(a to d) and 2 sought to justify the impugned judgment and decree passed by the First Appellate Court. It is the submission of the learned counsel appearing for the respondents that the suit schedule property was purchased in the year 1953 in the name of the plaintiff, who was 9 years old then and as such the plaintiff was represented by his father as a natural guardian. Though it is stated that the consideration was made good by the maternal grandmother of the plaintiff, however, the said aspect has not been proved before the Trial Court and accordingly he justifies the impugned judgment and decree passed by the First Appellate Court. - 10 - NC: 2025:KHC-D:2029 RSA No. 100707 of 2014 13. He also refers to the suit in O.S.No.31/1992 filed by the sister of the plaintiff and defendant No.1 – Smt.Kotravva and by referring Ex.D.16, it is the submission of the learned counsel appearing for the respondents that if at all the suit schedule property is the self-acquired property of the plaintiff, there must be averment to that effect in the written statement filed in the above suit and therefore in the absence of the same, the finding recorded by the Trial Court has been rightly interfered with by the First Appellate Court and accordingly sought for dismissal of the suit. 14. Insofar as argument advanced by the learned counsel appearing for the appellants that the family arrangement at Ex.D.3 requires compulsory registration, it is the submission of the learned counsel appearing for the respondents that though the family arrangement is requires to be registered document, however, pursuant to the execution of Ex.D.3, the revenue records have been changed by the parties and accordingly same has been - 11 - NC: 2025:KHC-D:2029 RSA No. 100707 of 2014 acted upon and therefore, refute the contention raised by the learned counsel appearing for the appellants and accordingly sought for dismissal of the appeal. 15. In the light of the submissions made by the learned counsel appearing for the parties and in order to understand the relationship between the parties, the genealogical tree of the parties is extracted below: Channabasappa (deceased) Huchchappa (deceased) Kotresh (Deft.1) Gangamma Kotramma Basavaraj Kalavati Gangaddhar Suresh (Plt.1(a)) (Plt.1(b)) (Plt.1(c)) (Plt.1(d)) (Plt.1(e)) (Plt.1(f)) (deceased) 16. Perusal of the genealogical tree would indicate that the original propositus Channabasappa had two children Huchchappa (plaintiff) and Kotresh (defendant No.1). It is the case of the plaintiff that the suit schedule property has been purchased by the plaintiff during 1953 - 12 - NC: 2025:KHC-D:2029 RSA No. 100707 of 2014 and sale consideration was given by his maternal grandmother, hence the suit schedule property is the self- acquired property of the plaintiff and accordingly sought for decreeing the suit. 17. In the backdrop of these aspects, I have carefully examined the findings of the Courts below. Undoubtedly, the plaintiff was aged about 9 years as on the date of execution of the sale deed dated 04.02.1953 (Ex.D.7). Perusal of the finding recorded by the Trial Court would indicate that nothing has been stated about the source of income by the plaintiff except saying that the sale consideration has been given by his maternal grandmother. In order to substantiate the same, no independent witness has been examined by the plaintiff. It is also to be noted that if at all the suit schedule property is the self-acquired property of the plaintiff and the sale consideration has been given by his maternal grandmother, however, such a plea would have been taken by the plaintiff in O.S.No.31/1992 where the - 13 - NC: 2025:KHC-D:2029 RSA No. 100707 of 2014 original plaintiff - Huchchappa was arrayed as defendant No.2 in O.S.No.31/1992. 18. It is also forthcoming from the revenue records that the suit schedule property is fallen to the share of defendant No.1 pursuant to the family arrangement dated 11.12.1996 (Ex.D.3). Though the learned counsel appearing for the appellants is justified in saying that the family arrangement is required to be compulsorily registered, however, same could be referred for collateral purpose to ascertain the division of properties. The revenue records have been changed in the name of defendant No.1 as per the varadi produced at Exs.D.5, 6 and 7. Taking into account that the plaintiff himself has agreed for the varadi to be given to the revenue authorities, pursuant to the execution of Ex.D.3, I am of the view that the plaintiff had in unequivocal words agreed for division of the properties as per Ex.D.3. 19. It is also not in dispute that the property in question has been sold by defendant No.1 in favour of - 14 - NC: 2025:KHC-D:2029 RSA No. 100707 of 2014 defendant No.2 on 19.02.2005. In that view of the matter, since the suit for declaration has been filed by the plaintiff seeking declaration that the suit schedule property is belonging to the plaintiff, however, no acceptable evidence has been adduced before the Trial Court to establish that the suit schedule property has been acquired by him based on the income as stated in the plaint. It is also to be noted that, the plaintiff has not proved the fact that the maternal grandmother of the plaintiff has given money of Rs.4,000/- during 1953 to the plaintiff who was aged about 9 years to purchase the suit schedule property. In that view of the matter, taking into consideration the factual aspects on record, the Trial Court has committed an error in decreeing the suit without appreciating the oral and documentary evidence on record with regard to the answer to issue Nos.1 and 3 and additional issue No.2 in the suit. In that view of the matter, the First Appellate Court after re-appreciating the material on record and taking into account the factual aspects on record as per para Nos.27 and 29 of the impugned judgment and decree - 15 - NC: 2025:KHC-D:2029 RSA No. 100707 of 2014 passed by the First Appellate Court, and therefore, I find force in the submission made by the learned counsel appearing for the respondents that the Trial Court has committed an error in decreeing the suit, however, same was set right by the First Appellate Court in a manner known to law as per Order 41 Rule 31 of CPC. 20. 20. In that view of the matter, though the substantial question of law is framed to the effect that the family arrangement produced at Ex.D.3 requires compulsory registration, however, the same can be accepted as collateral purpose. It is also to be noted that, the parties to the same including the plaintiff has agreed by giving varadi to the revenue authorities for change of entries as per Exs.D.5 to 7 which makes it clear that the intention of the plaintiff and defendant No.1 is to divide the joint family properties equally. In that view of the matter, I do not find any merit in the appeal. Accordingly, the substantial question of law framed above supports the view of defendant No.1. - 16 - NC: 2025:KHC-D:2029 RSA No. 100707 of 2014 21. Accordingly, the appeal is dismissed by confirming the judgment and decree passed by the First Appellate Court in R.A.No.103/2010 dated 09.07.2014 on the file of the II Additional District Judge, Haveri (sitting at Ranebennur). Suit of the plaintiff in O.S.No.157/2004 on the file of the Additional Senior Civil Judge, Moving Court, Byadagi is dismissed. Sd/- (E.S.INDIRESH) JUDGE SH LIST NO.: 1 SL NO.: 45