- 1 - HC-KAR NC: 2025:KHC:30512 RFA No. 2397 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA REGULAR FIRST APPEAL NO. 2397 OF 2023 (PAR/DEC) BETWEEN: SMT. RAMAKKA AGED ABOUT 43 YEARS, W/O SIDDALINGAMURTHY, R/AT NO. 77/A-37, 2ND FLOOR, 12TH CROSS, MAHALAKSHIMI LAYOUT, BENGALURU - 560 086. …APPELLANT (BY SRI. PRABHUGOUD B. TUMBIGI, ADVOCATE) AND: 1. SRI. M. VENKATESH AGED ABOUT 69 YEARS, S/O LATE V MUNISWAMY @ MUNISHAMAPPA, 2. SMT. SALLAPURI AGED ABOUT 63 YEARS, W/O M.VENKATESH RESPONDENT NO.1 AND 2 ARE R/AT NO. 149, SHANKARNAGAR MAIN ROAD, MAHALAKSHIMI LAYOUT, BENGALURU - 560 096. 3. SRI. PRAKASH AGED ABOUT 49 YEARS, Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30512 RFA No. 2397 of 2023 S/O LATE P ANTHONY, R/AT NO. 813 MUNICIPAL NO. 813/78, 13TH CROSS, MAHALAKSHMI LAYOUT, BENGALURU - 560 086. …RESPONDENTS (BY SRI. RAJAKUMAR G, ADVOCATE FOR R1 AND R2; SRI. T. SHESHAGIRI RAO, ADVOCATE AND SRI. SUNIL S. RAO, ADVOCATE FOR R3) THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 19.09.2023 PASSED IN OS NO.2649/2022 ON THE FILE OF LXVI ADDITIONAL CC AND SJ, BENGALURU., DISMISSING 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 The present regular first appeal is preferred by the plaintiff assailing the legality and correctness of the judgment and decree dated 19.09.2023 passed in O.S.No.2649/2022 on the file of the LXVI Additional City Civil and Sessions Judge, Bengaluru (hereinafter referred as 'Trial Court' for short). By the impugned order, the Trial Court dismissed the suit seeking for partition and - 3 - HC-KAR NC: 2025:KHC:30512 RFA No. 2397 of 2023 separate possession, and to further declare that the registered sale deed dated 23.03.2001 executed by defendant No.1 in favour of defendant No.3 is not binding. 2. Brief facts: The suit was filed for partition and separate possession and to declare that the registered sale deed dated 23.03.2001 is not binding. The plaintiff is the daughter of defendant No.1 (respondent No.1) and defendant No.2 (respondent No.2). Defendant No.3 (respondent No.3) is the purchaser from defendant No.1 under the registered sale deed dated 23.03.2001. The case of the plaintiff is that the suit schedule property was purchased by defendant No.1 on 24.09.1987, by utilizing the funds from the plaintiff's savings account. The case of the plaintiff is that the said funds were deposited by her maternal grandparents, and hence the suit property purchased using those funds is the joint family property. It is further alleged that sale by defendant No.1 was without - 4 - HC-KAR NC: 2025:KHC:30512 RFA No. 2397 of 2023 any family necessity or benefit of the plaintiff who was minor at that time and hence the alienation is not binding. 3. Defendant No.1 appeared through his counsel, but did not choose to file any written statement. Defendant Nos.2 and 3 have remained absent. 4. In order to substantiate her contentions, the plaintiff examined herself as PW.1 and marked 6 documents as EXs.P1 to P6. 5. The Trial Court on appreciation of the oral and documentary evidence, held that the plaintiff has failed to prove that the suit schedule property was acquired using funds deposited by her maternal grand parents. There was no evidence to show that the amount withdrawn from the plaintiff's savings account belonged to her or was deposited by her grand parents. The suit property was purchased and held in the name of defendant No.1 and plaintiff failed to establish her ownership over it. The suit was filed 21 years after the execution of the sale deed and - 5 - HC-KAR NC: 2025:KHC:30512 RFA No. 2397 of 2023 applying Article 109 of the Limitation Act, 1963 (for short 'Limitation Act'), the Trial Court dismissed the suit with cost. 6. Heard Sri. Prabhugoud B. Tumbigi, learned counsel appearing for the appellant, Sri. Rajakumar G., learned counsel appearing for respondent Nos.1 and 2, Sri. T. Sheshagiri Rao, learned counsel appearing for respondent No.3 and perused the material on record. 7. Learned counsel for the appellant vehemently contends that utilization of the funds standing in the plaintiff's savings account for purchase of the suit property renders the suit property as a joint family property. Learned counsel submits that alienation by defendant No.1 was not for legal necessity and without plaintiff's consent. It is argued that applying of Article 109 of the Limitation Act by the Trial Court was not justified, and proper Article applicable is Article 110 or Article 58 of the Limitation Act. - 6 - HC-KAR NC: 2025:KHC:30512 RFA No. 2397 of 2023 8. Learned counsel appearing for respondents justifies the judgment and decree of the Trial Court and submits that no credible or cogent evidence has been adduced by the plaintiff to show that the grandparents had deposited any money. The savings account was operated by defendant No.1 as guardian and funds therein were contributed by him. Mere operation of the plaintiff's account does not by itself indicate that the property acquired with such funds becomes joint family property. It is further submitted that the Trial Court has rightly held that the suit is barred by Article 109 of the Limitation Act and the same does not warrant any interference. 9. Having heard the learned counsel on both sides, the point that arises for consideration as under: "(i) Whether the Trial Court was justified in dismissing the suit and whether the same warrants any interference?" - 7 - HC-KAR NC: 2025:KHC:30512 RFA No. 2397 of 2023 10. Undisputedly, defendant No.1 has purchased the suit schedule property under the registered sale deed dated 24.09.1987. It is also not in dispute that there is a savings bank account of the plaintiff and defendant No.1 was operating the account as a guardian. Though the plaintiff contends that in the savings bank account, amount was deposited by her maternal grandparents and in light of the same, the amount which was deposited in the savings account and withdrawal of that amount by defendant No.1 towards purchase of the suit property has to be held to be the joint family property, is not substantiated by any documentary evidence. The plaintiff has failed to discharge the burden of proving that the funds in her savings bank account were gifted by her maternal grandparents. No documentary evidence has been produced. The probable evidence on record is that there is a bank account of the plaintiff operated by defendant No.1 as guardian and the funds deposited therein were contributed by him. The plaintiff has not - 8 - HC-KAR NC: 2025:KHC:30512 RFA No. 2397 of 2023 established any joint family nucleus to treat the suit property as a joint family property. The assertion that use of minor's account automatically converts the property into joint family property is untenable. 11. Article 109 prescribes a 12 year period of limitation to set aside an alienation of ancestral property by a father governed by Mitakshara law, starting from the date when the alienee (the person to whom the property was alienated) takes possession of the property. Article 110 applies when a person is excluded from the joint family properties to enforce a right to share therein. Limitation prescribes, when the exclusion becomes known to the plaintiff. 12. Article 58 prescribes to obtain any other declaration. Since the plaintiff's claim is that the sale deed is not binding and seeks partition and it is based on alienation by her father, Article 109 squarely applies and the limitation starts from the date of possession of the - 9 - HC-KAR NC: 2025:KHC:30512 RFA No. 2397 of 2023 purchaser i.e.2001 and the suit was filed after 21 years, far beyond the limitation. 13. For the aforesaid reasons, this Court finds no infirmity in the judgment and decree of the trial Court. The findings are based on proper appreciation of facts and evidence. The point for consideration is answered accordingly and this Court pass the following: ORDER i) The Regular First Appeal is dismissed. ii) The judgment and decree of the Trial Court stands confirmed. PHM List No.: 1 Sl No.: 9 Sd/- _____________________ JUSTICE K.S. HEMALEKHA