Research › Search › Judgment

High Court of Karnataka · body

2025 DAILYLAW 67761 (KAR)

SMT GOWRAMMA v. SMT RAJAMMA W/O SABGAIAH

RFA/710/2018 · 2025-09-18

Hanchate Sanjeevkumar

body2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

- 1 - HC-KAR NC: 2025:KHC:37941 RFA No. 710 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.710 OF 2018 (PAR) BETWEEN: 1. SMT GOWRAMMA W/O LATE MUNEGOWDA AGED ABOUT 58 YEARS, 2. SMT VASANTHA W/O LAKKAPPA BOTH ARE R/A ARALALUSANDRA, KASABA HOBLI, KANAKAPURA TALUK- 562117 3. SMT VEENA W/O RAMESH, AGED ABOUT 43 YEARS, R/A MADABALU VILLAGE , AND HOBLI, MAGADI TALUK, RAMANAGARA DISTRICT- 562159 4. SMT SUGUNA W/O VASANTHA, AGED ABOUT 40 YEARS, R/A ARALALUSANDRA, KASABA HOBLI, KANAKAPURA TALUK- 562117 …APPELLANTS (BY SRI. NAGARAJA RAO K S., ADVOCATE) Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:37941 RFA No. 710 of 2018 AND: 1. SMT RAJAMMA W/O SABGAIAH AGED ABOUT 56 YEARS, R/A SOMANAHALLI POST UTTARAHALLI HOBLI BANGALORE SOUTH TALUK-560061 2. SMT NARAYANAMMA W/O VENKATACHALAIAH AGED ABOUT 48 YEARS, R/A MACHOHALLI, BAPAGRAMA POST, BANGALORE-560091 3. SMT SUMANGALA W/O NARAYANA AGED ABOUT 46 YEARS, R/A BANJARAPALYA KAGGALIPURA POST BANGALORE SOUTH TALUK-560082 4. SMT PARVATHAMMA W/O LATE MUNITHIMMEGOWDA MAJOR R/A BANJARAPALYA KAGGALIPURA BANGALORE-560082 5. SMT SAKAMMA W/O CHANNIGAPPA AND W/O LATE MUNITHIMMEGOWDA AGED ABOUT 55 YEARS, R/A GONIPURA, KENGERI HOBLI BANGALORE SOUTH TALUK BANGALORE-560060 …RESPONDENTS (BY SRI. SHANKARE GOWDA V N., ADVOCATE FOR C/R1 TO R3 AND R5; SRI. MURALI.N, ADVOCATE FOR R4) - 3 - HC-KAR NC: 2025:KHC:37941 RFA No. 710 of 2018 THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 31.1.2018 PASSED IN OS NO.145/2014 (OLD NO.15/2010) ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, KANAKAPURA, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT The appeal is filed by the defendant Nos.1 to 4 challenging the judgment and decree passed in O.S.No.145/2014 (old O.S.No.15/2010) dated 31.01.2018 by the Senior Civil Judge and JMFC, Kanakapura, whereby the suit filed for partition is decreed by granting 1/6th share each in the suit schedule properties. 2. The rank of the parties are stated as per their rank before the trial court for ease and convenience. 3. The plaintiffs have filed a suit for partition and separate possession of their 1/6th share each in the suit schedule properties claiming that the suit schedule properties are ancestral properties and joint family - 4 - HC-KAR NC: 2025:KHC:37941 RFA No. 710 of 2018 properties and it is further pleaded that there was no severance in the joint family and joint family is continued. Hence, filed suit for partition. 4. The defendants have filed the written statement and denied all the plaint averments except relationship. It is the case of the defendants that there was earlier suit in O.S.No.100/1996 filed for partition and separate possession, which was dismissed. The defendant Nos.1 to 4 have taken contention that there was already partition took place in the year 1988 during the lifetime of deceased Munithimmegowda and as per the oral partition, the defendants therein had right over the suit property and in respect of other properties a Will was executed by deceased Munithimmegowda, the father-in-law of defendant No.1. Therefore, it is made out by defendant Nos.1 to 4 that there was partition during the life time of Munithimmegowda and the status of joint family was severed and hence, the properties are no more joint family properties and this is rightly considered in the suit - 5 - HC-KAR NC: 2025:KHC:37941 RFA No. 710 of 2018 O.S.No.100/1996 and once again filing of suit is hit by the principles of res judicata and therefore, the defendants have filed statement to the aforesaid and prays to dismiss the suit. 5. Based on the pleadings, the trial court has framed the following issues: (i) Whether the plaintiffs prove that themselves and defendants are the members of joint hindu family and the suit properties are belongs to their joint family? (ii) Whether the plaintiffs prove that they are having 1/5th share each in the suit schedule properties? (iii) Whether the plaintiffs are entitled for partition and separate possession of their 1/5th share each in the suit schedule properties by metes and bounds? (iv) Whether the defendants 1 to 4 prove that, there was previous partition in the year 1988 during the life time of deceased Munithimmegowda and the suit properties derived to the said defendants 1 to 4 and - 6 - HC-KAR NC: 2025:KHC:37941 RFA No. 710 of 2018 other properties derived to the said Munithimmegowda for which he had executed a 'Will' in favour of defendant No.2 for taking care of him? (v) Whether the defendant No.5 proves that, the land measuring 1 acre out of suit schedule item No.2 property given to her towards her life maintenance and hence, said land is not available for partition? (vi) Whether the suit is hit by principles of respondent judicata? (vii) What order or decree? 6. On behalf of the plaintiff, plaintiff No.1 is examined as PW1 and got marked documents Ex.P1 to Ex.P24. On behalf of the defendants, defendant No.5 is examined as DW1 and defendant No.1 as DW2 and got marked documentary evidence as Ex.D1 to Ex.D65. 7. The trial court has decreed the suit by allotting 1/6th share each to the plaintiffs on the reason that the defendants have failed to prove that there was earlier partition during the lifetime of Munithimmegowda. - 7 - HC-KAR NC: 2025:KHC:37941 RFA No. 710 of 2018 Therefore, disbelieving Ex.D65 – original panchayath paluparikath and held that the status of joint family is continued and thus granted decree for partition. 8. Being aggrieved by decreeing the suit, defendant Nos.1 to 4 who are wife and children of Munegowda have preferred the appeal by raising various ground in the memorandum of appeal. 9. Learned counsel for the appellants/defendant Nos.1 to 4 have submitted that as per Ex.P23 and Ex.P24, the suit of the plaintiffs was earlier dismissed on merits. Therefore, once again filing of the suit by the plaintiffs is hit by the principles of res judicata. It is submitted that during the lifetime of Munithimmegowda, the partition as it was reduced in writing and this partition has taken place prior to 20.12.2005. Therefore, the earlier partition is saved, but the trial court has wrongly disbelieved this document of partition that took place during the lifetime of Munithimmegowda and his son Munegowda who is husband of defendant No.1 and father of defendant Nos.2 - 8 - HC-KAR NC: 2025:KHC:37941 RFA No. 710 of 2018 to 4 were allotted share to each other as such, there was severance in the joint family. Hence, prays to allow the appeal. 10. On the other hand, learned counsel for the plaintiffs submitted that Ex.P23 and Ex.P24, which are judgment and decree in O.S.No.100/1996 is not decided on its merits. The said suit was disposed of on the ground that during the lifetime of Munithimmegowda, the daughters cannot claim partition for this reason only, the suit O.S.No.100/1996 was dismissed. Hence, that does not create a bar as res judicata is not applicable. 11. Further, the trial court has rightly held that Ex.D65 does not prove that there was earlier partition and has correctly disbelieved the said fact as defendant Nos.1 to 4 failed to prove the earlier partition of the joint family. Therefore, the trial court was justified in coming to the aforesaid conclusion and has rightly dismissed the appeal. - 9 - HC-KAR NC: 2025:KHC:37941 RFA No. 710 of 2018 12. Upon considering the submissions and made on both sides, the following points arise for consideration: (i) Whether, under the facts and circumstances of the case, the plaintiffs proved that there is existence of joint family consisting of plaintiffs and defendants and suit schedule properties are joint family properties? (ii) Whether, under the facts and circumstances of the case, defendant Nos.1 to 4 proved that there was earlier partition on 20.04.1988 as per panchayath paluparikath and thus, the plaintiffs are not entitled to any share in the property ? (iii) Whether the judgment and decree passed in O.S.No.100/1996 is a bar to file the suit for partition by the plaintiffs on the principle of res judicata? (iv) Whether the judgment and decree of the trial court requires interference by this court? 13. One Munithimmegowda is the original propositus who died on 02.04.2009. The defendant No.5 is the wife of Munithimmegowda. Munithimmegowda and - 10 - HC-KAR NC: 2025:KHC:37941 RFA No. 710 of 2018 Parvathamma have 5 children one of them is Munegowda who died being husband of defendant No.1 and father of defendant Nos.2 to 4. Plaintiff Nos.1, 2, 3 and 6 are daughters of Munithimmegowda and Parvathamma / defendant No.5. Defendant Nos.2, 3 and 4 are children of defendant No.1 and Munegowda. The plaintiffs have filed earlier a suit in O.S.No.100/1996 for partition on 25.07.1996. This suit is dismissed on the reasons that during the lifetime of Munithimmegowda, the plaintiffs could not maintain a suit for partition. Accordingly the suit in O.S.No.100/1996 is dismissed. As per Ex.D23 and Ex.24, the judgment and decree passed in the said suit, though the trial court has framed 7 issues for its consideration, but has not discussed anything on the suit, but simply dismissed the suit on the ground that during the lifetime of Munithimmegowda, the daughters cannot maintain the suit. Accordingly, dismissed the suit. Another reason given in the said suit in O.S.No.100/1996 is that plaintiff No.1 after evidence did not turn up for completion - 11 - HC-KAR NC: 2025:KHC:37941 RFA No. 710 of 2018 of examination and the son of defendant No.1 has placed reliance on the partition dated 20.04.1988 and the plaintiff have not discharged their burden hence, dismissed the suit. 14. Upon considering Ex.P23 and Ex.P24, the judgment and decree in O.S.No.100/1996, firstly, the said suit is not decided on merits. It is observed in the said judgment that the plaintiff No.1 has not completed the examination-in-chief and defendant No.1 has taken the contention that the oral partition is dated 20.04.1998 and this fact is not discharged by the plaintiffs, hence, dismissed the suit. Therefore, at any stretch of imagination the dismissal of O.S.No.100/1996 does not amount to deciding the said suit on its merits. Though in the said judgment it is observed that plaintiff No.1 has not examined, then the recourse that ought to have adopted is to dismiss the suit for non-prosecution, but the Trial Court without receiving the evidence of the defendants, just considered the averments made in the written statement - 12 - HC-KAR NC: 2025:KHC:37941 RFA No. 710 of 2018 that there was an earlier panchayath paluparikath and held that the plaintiffs have not discharged their burden and dismissed the suit. Therefore, the Trial Court has not answered all the issues in the said suit; hence, it does not amount to deciding the suit in O.S.No.100/1996 on its merits. Therefore, this judgment and decree in O.S.No.100/1996 is not amounting to res-judicata. Therefore, the present suit is maintainable. 15. The defence of defendant Nos.1 to 4 that there was earlier partition as per Ex.D65 dated 20.04.1998. When this being the partition as per defendant Nos.1 to 4, then there ought to have been evidence that this partition was effected and acted upon, but there is no evidence to prove that there was earlier partition and was acted upon. Mere production of the said document of partition is not sufficient to prove that there was earlier partition. Mere production of document is not sufficient unless its contents are proved, but for proving the contents in the said - 13 - HC-KAR NC: 2025:KHC:37941 RFA No. 710 of 2018 partition deed and execution of said partition deed, absolutely there is no evidence by defendant Nos.1 to 4. 16. If it is the contention of defendant Nos.1 to 4 that there was earlier partition dated 20.04.1998 as per Ex.D65, then it would have been acted upon if there was written panchayath paluparikath. Further, upon considering Ex.D15 mutation register upon which defendant Nos.1 to 4 are placing reliance, the mutation was effected in the year 1996-97 after the death of Munegowda, who is the husband of defendant No.1 and father of defendant Nos.2 to 4; but as per defendant Nos.1 to 4, the partition was through panchayath paluparikath dated 20.04.1988. Then, there is no evidence that immediately after the said panchayath paluparikath, the said partition was acted upon; but only in the year 1996-97, the mutation is effected. Hence, it is proved that immediately after the panchayath paluparikath, the said partition was not acted upon. Therefore, this disproves the previous partition as contended by defendant Nos.1 to 4. - 14 - HC-KAR NC: 2025:KHC:37941 RFA No. 710 of 2018 17. Furthermore, if Ex.D65 is to be considered as memorandum of partition, then the act of partition is to be proved by examining witnesses to the said partition deed, but defendant Nos.1 to 4 have not examined any of the witnesses to witness the partition-Ex.D65. Hence, Ex.D65 remains a document but is not proved validly as per the observations made above. Mere marking and production of the document are not sufficient; in the absence of witnesses witnessing the execution of the document, the said document cannot be relied upon. In this regard, learned counsel for the respondents/plaintiffs places reliance on the judgment of Hon’ble Apex Court in the case of JOSEPH JOHN PETER SANDY VS. VERONICA THOMAS RAJKUMAR AND ANOTHER1 at paragraph Nos.30 and 31, it is held as follows: “30. The High Court further held that Ext. A-3 being an unregistered document, could not have been relied upon and it had wrongly been admitted. In our opinion, such a view may not be legally correct. However, reversal of the said finding would not tilt the balance in favour of the appellant. 1 2013 (3) SCC 801 - 15 - HC-KAR NC: 2025:KHC:37941 RFA No. 710 of 2018 31. In view of the law referred to hereinabove, it is crystal clear that even though the document may be admissible, still its contents have to be proved and in the instant case, as the appellant did not examine either the attesting witnesses of the document, nor proved its contents, no fault can be found with the judgment2 impugned before us. Section 26 of the Act provides for rectification of a document if the parties feel that they have committed any mistake. Also, it was only the father of the parties who could have sought rectification of the deed. Mere rectification by the parties herein does not take the case within the ambit of Section 26 of the Act. Taking note of the statutory provisions of Section 16 of the Contract Act and the parameters laid down by this Court for application of the doctrine of undue influence, the High Court has reached a correct conclusion.” 18. Therefore, when Ex.D65-panchayath paluparikath attains the characteristic as a memorandum of partition as it is unregistered one, then the fact of partition ought to have been proved by examining the witnesses stated in the said document, but none of the witnesses in the said document-Ex.D65 have been examined. Furthermore, though as per Ex.D65-panchayath paluparikath dated 20.04.1998, but it was not acted upon. 2 Veronica Thomas Rajkumar v. Joseph John Peter Sandy, (2004) 1 MLJ 301 - 16 - HC-KAR NC: 2025:KHC:37941 RFA No. 710 of 2018 This creates doubt as to whether such Ex.D65 partition was effected in the absence of acting upon the said partition. Hence, if the ratio is applied, it holds that there was no prior partition in the family. Therefore, the plaintiffs have proved that the properties are ancestral and joint family properties and there is no severance in the joint family. Thus, the plaintiffs have also entitled to a share in the properties, which is rightly considered by the Trial Court. Hence, there is no need to make interference in the judgment and decree passed by the Trial Court. Accordingly, I answer point Nos.(i) in the Affirmative and point Nos.(ii) to (iv) in the Negative. Thus, the appeal is liable to be dismissed. 19. In the result, I proceed to pass the following: ORDER i. The appeal is dismissed. ii. The judgment and decree dated 31.01.2018 passed in O.S.No.145/2014 - 17 - HC-KAR NC: 2025:KHC:37941 RFA No. 710 of 2018 (old O.S.No.15/2010) on the file of Senior Civil Judge and JMFC, Kanakapura, is hereby confirmed. iii. Draw decree accordingly. iv. No order as to costs. SD/- (HANCHATE SANJEEVKUMAR) JUDGE SS: para Nos.1 to 14. SRA: para Nos.15 to end.