- 1 - HC-KAR NC: 2025:KHC:29315 RFA No. 1382 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2025 BEFORE THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA REGULAR FIRST APPEAL NO. 1382 OF 2023 (PAR) BETWEEN: SRI. K.S. RAGHURAM REDDY S/O LATE R SHAMANNA REDDY AGED ABOUT 62 YEARS, R/O NO.684, 10TH MAIN, 4TH C BLOCK, KORAMANGALA, BENGALURU 560034 …APPELLANT (BY SRI. UDAYA PRAKASH MULIYA, ADVOCATE FOR SRI. KAMALUDDIN, ADVOCATE) AND: 1. SMT. NEELAMMA SINCE DECEASED REP. BY LRS SMT. N. KAVITHA W/O LATE JANARDHAR REDDY AGED ABOUT 48 YEARS, RESIDING AT NO.466, 2ND CROSS ASHWATHNAGAR, MUNNEKOLALU EXTENSION, MARATHAHALLI, BENGALURU-560 037 2. SMT. N. NAGAVENI W/O RAMA REDDY, AGED ABOUT 46 YEARS, R/AT NO.400, DODDANEKKUNDI, DOMMASANDRA, VARTHUR HOBLI, BENGALURU - 560087. Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:29315 RFA No. 1382 of 2023 3. SMT. N. SHABITHA W/O RAJ REDDY, AGED ABOUT 44 YEARS, R/AT DODDATHOGURU, BEGUR HOBLI, BENGALURU - 560 100 4. SRI. K.S SURENDRA REDDY S/O LATE R SHAMANNA REDDY, AGED ABOUT 62 YEARS, R/AT NO.48, FERNS CITY VILLA, DODDANEKKUNDI, OUTER RING ROAD, BENGALURU – 560037 5. SMT. GOWRAMMA W/O LATE K. S PRABHAKAR REDDY AGED ABOUT 56 YEARS 6. SRI. K.P. VANI D/O LATE K. S PRABHAKAR REDDY AGED ABOUT 32 YEARS RESPONDENT Nos. 5 & 6 ARE RESIDING AT NO.135, OPP: TO ANJANEYA SWAMY TEMPLE, 8TH BLOCK, KORAMANGALA GRAMATANA AREA, KORAMANGLA BANGLAORE - 560 095 7. SMT. SHAKUNTHALA D/O R. SHAMANNA REDDY, W/O GOPALA REDDY, AGED ABOUT 56 YEARS R/AT NO. 373, 8TH B CROSS, NEAR ESWAR TEMPLE, KACHARAKANAHALLI EXTENSION, BANGALORE. 8. SMT. KRISHNAVENI W/O LATE K.S PRAKASH REDDY AGED ABOUT 50 YEARS 9. SMT. SAVITHA D/O LATE K.S PRAKASH REDDY - 3 - HC-KAR NC: 2025:KHC:29315 RFA No. 1382 of 2023 AGED ABOUT 32 YEARS, 10. SRI. K.P JAYAKUMAR S/O LATE K.S PRAKASH REDDY AGED ABOUT 28 YEARS, 11. SRI. K.P JAGADISH REDDY S/O LATE K.S PRAKASH REDDY AGED ABOUT 26 YEARS, RESPONDENT Nos. 8 TO 11 ARE RESIDING AT. NO. 76, OPPOSITE TO ANJENEYA SWAMY TEMPLE, 8TH BLOCK, KORAMANGALA GRAMATANA AREA, KORAMANGALA, BANGLORE - 560 034. …RESPONDENTS (BY SRI. N. DEVENDRA, ADVOCATE FOR R4 & R7 SRI. K.A. HARISH, ADVOCATE FOR R8, R10 & R11 NOTICE TO R1, R2, R3, R5, R6 AND R9 ARE SERVED AND UNREPRESENTED) THIS RFA IS FILED UNDER SECTION 96 OF CPC. 1908 AGAINST THE JUDGMENT AND DECREE DATED 16.03.2023 PASSED IN OS.No.6021/2013 ON THE FILE OF THE XXXV ADDITIONAL CITY CIVIL AND SESSIONS BENGALURU, DECREEING THE SUIT FOR PARTITION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA ORAL JUDGMENT This regular first appeal is filed by defendant No.9 assailing the correctness and legality of the judgment passed by the learned XXXV Additional City Civil and - 4 - HC-KAR NC: 2025:KHC:29315 RFA No. 1382 of 2023 Sessions Judge, Bengaluru (for short ‘the trial Court’) in O.S.No.6021/2013 dated 16.03.2023, whereby the trial Court decreed the suit declaring that the plaintiffs are entitled for 1/6th share in the suit schedule property and further declared that defendant Nos.1, 4 and 9 are entitled to equal share in the suit schedule property with that of the plaintiff i.e., 1/6th share each. Brief facts: 2. The family pedigree is culled out as under: R SHAMANNA REDDY (deceased) ↓ VANAJAKSHAMMA (deceased) ↓ _________________________________________________ ↓ ↓ ↓ ↓ ↓ ↓ K.S. SURENDRA REDDY (1ST Defendant) PRABHAKAR REDDY (deceased) PRAKASH REDDY (deceased) K.S. RAGHURAM REDDY (9th Defendant) NEELAMMA (Plaintiff) SHAKUNTALA (4th Defendant) ↓ ↓ ↓ ↓ ______________________↓________________________________ ↓ ↓ ↓ ↓ KRISHNAVENI (5th Defendant) SAVITHA (6th Defendant) K P JAYAKUMAR (7th Defendant) K P JAGADISH REDDY (8th Defendant) GOWRAMMA 2nd Defendant) P VANI 3rd Defendant) - 5 - HC-KAR NC: 2025:KHC:29315 RFA No. 1382 of 2023 3. Suit is one for partition and separate possession. The case of the plaintiffs is that one R. Shyamanna Reddy, the original propositus had acquired the suit schedule property under a registered sale deed dated 02.02.1970. Upon the death R. Shyamanna Reddy and his wife, the plaintiff along with defendant Nos.1 to 4 who are the children and defendant Nos.5 to 8, who are the grand children of the propositus, are entitled to share in the suit property as legal heirs. The plaintiff is a co- sharer and is in joint possession thereof. 4. Defendant No.1 has admitted that the suit property was acquired by the propositus R. Shamanna Reddy under the registered sale deed dated 02.02.1970. By way of a counter claim, defendant No.1 has sought for the suit to be decreed and for determination of his share, claiming that he is entitled to 1/6th share in the suit property. Defendant No.4 has taken a similar stand and also seek his rightful share in the suit property. - 6 - HC-KAR NC: 2025:KHC:29315 RFA No. 1382 of 2023 5. Defendant No.4 took a similar plea as taken by defendant No.1 and sought for 1/6th share in the suit schedule property. 6. Defendant No.9 filed separate written statement, stating that defendant No.1 along with his sons had executed a sale agreement dated 13.02.2013 in favour of defendant No.9, in respect of the portion of the suit property measuring 660 sq.ft. which includes an old mud-constructed house for total sale consideration of Rs.16,65,000/-. It is further averred that defendant No.1 and his sons received Rs.10 lakhs as advance on 13.02.2013 and additional Rs.4,55,000/- on 06.04.2014, and the balance amount agreed to be paid at the time of execution and registration of the sale deed. 7. Further that pursuant to the agreement of sale, the possession of the said portion has been handed over to defendant No.9. Additionally, it is contended that the plaintiff failed to pay the requisite Court fee under Section - 7 - HC-KAR NC: 2025:KHC:29315 RFA No. 1382 of 2023 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short the ‘KCF and SV Act’). 8. The Trial Court recorded a finding that the suit property constitutes joint family property of plaintiff and the defendants. It was held that the plaintiff and the defendants have established their entitlement to 1/6th share each in suit property. The Trial Court observed that defendant No.9 has failed to discharge the burden of proof in respect of the additional issue framed namely, whether defendant No.1 and his sons had executed an agreement of sale in respect of 1/3rd share in the suit property in favour of defendant No.9. 9. Heard the learned counsel appearing for the appellant and learned counsel appearing for the respondents and perused the material on record. 10. The primary contention of the learned counsel appearing for the appellant is two. Firstly, it is argued that the plaintiff was not in possession of the suit property and - 8 - HC-KAR NC: 2025:KHC:29315 RFA No. 1382 of 2023 therefore, valuation for the relief under Section 35(2) of the KCF and SV Act was impermissible. It is submitted that the suit ought to have been valued in accordance with Section 35(1) of the KCF and SV Act, which pertains to suit for partition where the plaintiff is not in possession. Secondly, it is contended that defendant No.1 had entered into an agreement of sale dated 13.02.2013 in favour of defendant No.9. Since defendant No.1 had not filed any written statement denying the same, the trial Court ought to have accepted the said transaction as admitted. 11. Per contra, learned counsel appearing for the respondent justifies the judgment and decree passed by the trial Court, contending that the trial Court has rightly appreciated the pleadings and evidence and decreed the suit, which does not call for interference in this appeal. It is further contended that the issue raised by the appellant were duly considered and rejected by the trial Court. It is further submitted that in a suit for partition, the appellant cannot assert independent rights based on an alleged - 9 - HC-KAR NC: 2025:KHC:29315 RFA No. 1382 of 2023 agreement of sale said to have been executed in his favour by defendant No.1. If the appellant is aggrieved by alleged non-execution or breach of the agreement of sale, the appropriate remedy lies in initiating a separate suit for specific performance or damages, and not by raising such a claim in the present partition proceedings. 12. Having heard the learned counsel for the parties, the point that arises for consideration is: “Whether the trial Court was justified in decreeing the suit for partition and separate possession by holding that the plaintiffs and defendants are entitled for 1/6th share each in the suit property?” 13. The appellant has contended that the plaintiff was not in possession of the suit property and therefore, valuation for the relief under Section 35(2) of the KCF and SV Act was impermissible. It is a well settled principle that averments made in the plaint are the guiding factors for - 10 - HC-KAR NC: 2025:KHC:29315 RFA No. 1382 of 2023 determination of the Court fee and jurisdiction, and not the statements made in the written statement. In the instant case, the plaintiff has specifically averred that the suit schedule property is the joint family property, and she is a co-sharer and in joint possession of the same. 14. Section 35 of the KCF and SV Act, 1958, reads as under: “35. Partition suits. (1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff whose title to such property is denied, or who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share. (2) In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates:-Rupees fifteen, if the value of plaintiff's share is Rs. 3,000 or less; Rupees thirty, if the value is above Rs. - 11 - HC-KAR NC: 2025:KHC:29315 RFA No. 1382 of 2023 3,000 but not more than Rs. 5,000; Rupees one hundred, if the value is above Rs. 5,000 but below Rs. 10,000; and Rupees two hundred, if the value is Rs. 10,000 and above. (3) Where, in a suit falling under sub-section (1) or sub-section (2),a defendant claims partition and separate possession of his share of the property, fee shall be payable on his written statement computed on half the market value of his share or at half the rates specified in sub-section (2), according as such defendant has been excluded from possession or is in joint possession. (4) Where, in a suit falling under sub-section (1) or sub-section (2), the plaintiff or the defendant seeks cancellation of decree or other document of the nature specified in Section 38 separate fee shall be payable on the relief of cancellation in the manner specified in that section.” (emphasis supplied) 15. Based on the averments of the plaint, the suit has been rightly valued under Section 35(2) of the KCF and SV Act. The trial Court rightly accepted his contention, and there is no perversity or error in such determination. - 12 - HC-KAR NC: 2025:KHC:29315 RFA No. 1382 of 2023 Therefore, the suit is validly instituted for purposes of both the Court fee and jurisdiction. 16. The second contention of the appellant is that defendant No.1 along with his sons had executed an agreement of sale in favour of defendant No.9 in respect of the portion of the suit property and since defendant No.1 did not file written statement the said transaction should be treated as admitted. This contention also cannot be accepted for more than one reason. Firstly, merely non filing of a written statement by defendant No.1 does not ipso facto to admission of the claim of defendant No.9, particularly when the suit is one for partition. Secondly, the trial Court has framed an additional issue on this aspect and recorded a categorical finding that defendant No.9 has failed to prove the execution of the alleged agreement of sale or delivery of possession pursuant thereto. The burden of proof lay on defendant No.9, which has not been discharged. Moreover, in a suit for partition, no declaration of title or rights based on an agreement of - 13 - HC-KAR NC: 2025:KHC:29315 RFA No. 1382 of 2023 sale can be granted in favour of defendant No.9 claiming under one of the co-sharers, unless such rights have been independently established. As rightly contended by the respondent's counsel, if the appellant is aggrieved by the alleged non-execution or non-performance of the sale agreement, the appropriate remedy lies in filing a suit for specific performance and not by asserting such rights in a partition suit. 17. In view of the above discussion, both the contentions urged by the appellants are devoid of merits. The trial Court has rightly decreed the suit by holding that the suit schedule property is the joint family property and the plaintiff and the other sharers are entitled for 1/6th share and for the foregoing reasons, the point framed for consideration is answered accordingly and this Court finds no illegality or perversity in the judgment and decree passed by the trial Court and this Court pass the following: - 14 - HC-KAR NC: 2025:KHC:29315 RFA No. 1382 of 2023 ORDER i. The Regular First Appeal is hereby dismissed. ii. The judgment and decree of the trial Court stands confirmed. Sd/- _____________________ JUSTICE K.S. HEMALEKHA SKS List No.: 1 Sl No.: 11