- 1 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 23RD DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.100344 OF 2017 (PAR) C/W RFA CROSS OBJ NO.100001 OF 2019 IN RFA NO.100344/2017 BETWEEN: 1. PARVATEVVA W/O. ANDANGOUDA PATIL, AGE: 68 YEARS, OCC: H/W, R/O: NAGARMADU, TAL: SHIRAHATTI, DIST: GADAG-582101. 2. SHANTAVVA W/O. RAMAPPA PUJAR, AGE: 63 YEARS, OCC: H/W, R/O: NAGARMADU, TAL: SHIRAHATTI, DIST: GADAG-582101. …APPELLANTS. (BY SRI RAMESH I. ZIRALI, ADVOCATE.) AND: 1. SMT. SATYAWWA W/O. ASHOK PUJAR, AGE: 45 YEARS, OCC: H/W, R/O: KOGANUR, TAL: SHIRAHATTI, DIST: GADAG-582101. 2. SHILPA D/O. BASAPPA PUJAR, AGE: 28 YEARS, OCC: H/W, R/O: KOGANUR, TAL: SHIRAHATTI, DIST: GADAG-582101. 3. HALANGOUDA A/F FAKIRAGOUDA PATIL, AGE: 44 YEARS, OCC: TEACHER, R/O: NAGARMADU, TAL: SHIRAHATTI, DIST: GADAG - 582101. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 4. GIRIJAWWA W/O. ISHWARAPPA UNDADI, AGE: 50 YEARS, OCC: H/W, R/O: SHIRUND, TAL: AND DIST: GADAG-582101. 5. HOLALAPPA S/O. DYAMAPPA ITAGI, AGE: 58 YEARS, OCC: AGRICULTURE, R/O: ANKALI, TAL: SHIRAHATTI, DIST: GADAG-582101. …RESPONDENTS. (BY SRI J.S. SHETTY, ADVOCATE FOR C/R1 AND R2; R3, R4 AND R5 – NOTICE SERVED.) THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41 RULE 1 READ WITH SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 05.08.2017 PASSED IN O.S.NO.86/2009, ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, GADAG, BY ALLOWING THIS APPEAL TO MEET THE ENDS OF JUSTICE AND EQUITY. IN RFA CROB.NO.100001/2019 BETWEEN: 1. SATYAVVA W/O. ASHOK PUJAR, AGE: 46 YEARS, OCC: HOUSEHOLD WORK, R/O: KOGANUR, TALUK: SHIRAHATTI, DISTRICT: GADAG-582120. 2. SHILPA D/O. BASAPPA PUJAR, AGE: 29 YEARS, OCC: HOUSEHOLD WORK, R/O: KOGANUR, TALUK: SHIRAHATTI, DISTRICT: GADAG-582120. …CROSS OBJECTORS. (BY SRI J.S.SHETTY, ADVOCATE.) AND: 1. HALANAGOUDA ADOPTED FATHER FAKIRGOUDA PATIL, AGE: 45 YEARS, OCC: TEACHER, R/O: NAGARAMADU, TALUK: SHIRAHATTI, DISTRICT: GADAG-582120. - 3 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 2. GIRIJAWWA W/O. ISHWARAPPA UNDADI, AGE: 51 YEARS, OCC: HOUSEHOLD WORK, R/O: SHIRUND, TALUK: GADAG, DISTRICT: GADAG-582101. 3. HOLALAPPA S/O. DYAMAPPA ITAGI, AGE: 59 YEARS, R/O: ANKALI, TQ: SHIRAHATTI, DIST: GADAG-582101. 4. SMT. PARVATEVVA W/O. ANANDAGOUDA PATIL, AGE: 69 YEARS, OCC: HOUSEHOLD WORK, R/O: NAGARAMADU, TALUK: SHIRAHATTI, DISTRICT: GADAG. 5. SMT. SHANTAVVA W/O. RAMAPPA PUJAR, AGE: 64 YEARS, OCC: HOUSEHOLD WORK, R/O: NAGARAMADU, TALUK: SHIRAHATTI, DISTRICT: GADAG. …RESPONDENTS (BY SRI RAMESH I. ZIRALI, ADVOCATE FOR R4 AND R5; R1 TO R3 – (APPEAL DISMISSED AGAINST R1 TO R3 V/O DATED 08.12.2023). THIS CROSS OBJECTION IN RFA NO.100344/2017 IS FILED UNDER ORDER 41 RULE 22 OF THE CIVIL PROCEDURE CODE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 05.08.2017 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE, GADAG, IN O.S.NO.86/2009 INSOFAR AS IT RELATES TO REJECTION OF PLAINTIFFS CLAIM OVER THE SUIT SCHEDULE 1(B) PROPERTIES IS CONCERNED, BY ALLOWING THIS APPEAL AND DECREEING THE SUIT OF THE PLAINTIFFS IN ITS ENTIRETY, WITH COST THROUGHOUT IN THE ENDS OF JUSTICE AND EQUITY. THESE REGULAR FIRST APPEAL AND CROSS OBJECTION COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 4 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) The appeal in RFA No.100344/2017 is filed by the defendants No.4 and 5 in the suit, challenging the judgment and decree dated 05.08.2017, passed by the Addl. Senior Civil Judge, Gadag, in O.S.No.86/2009, whereas cross objection in RFA bearing RFA CROB No.100001/2018 is filed by the plaintiffs No.1 and 2 in the suit, for modification of the judgment and decree passed by the trial Court. 2. For the purpose of convenience and easy reference, ranking of the parties is referred to as per their status before the trial Court. 3. The plaintiffs have shown the genealogy as follows: Hanmanthgouda / Dyamawwa Yallavva Fakiragouda Bharamavva Andangouda (Died) /Gangavva /=Parvatevva Girijavva Jayavva Satavva Parvatevva Shantavva Shilpa Govindagouda Halangouda - 5 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 4. By showing the above said genealogy, the plaintiffs have filed suit for partition for claiming 1/4th share each in the suit schedule properties. It is pleaded by the plaintiffs that Hanmantgouda is having four children namely Yallavva, Fakiragouda, Bharamavva and Andangouda of which Fakiragouda and Andangouda are two male children. Therefore, partition was effected between them in the year 1955 and the suit schedule properties were fallen to the share of Fakiragouda. Therefore for claiming the share in the suit schedule properties given to Fakiragouda, the present suit is filed for partition for claiming 1/4th share each. 5. Initially, defendants No.1 and 2 were made as parties. Later on defendants No.3, 4 and 5 came on record as defendants. Defendants No.1 and 2 have filed the written statement denying the plaint averments. Fakiragouda was having wife by name Gangavva and was having only three daughters. Therefore, defendant No.1 has been adopted by the said Gangavva after demise of Fakiragouda in the year 1984 through registered adoption deed. It is further pleaded, plaintiff No.1, defendant No.2 and mother of plaintiff No.2 - 6 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 who are daughters of Gangavva had “given khubooli” (consent) before the revenue authorities by relinquishing their right over the suit schedule properties and they have received movables like cash, silver, gold in lieu of their share in the movable properties. Therefore, the plaintiffs, defendant No.2 and mother of plaintiff No.2 have no manner of right, share in the suit schedule properties. Therefore, prays to dismiss the suit. 6. After impleading defendants No.3, 4 and 5, they have filed the written statement contending that defendant No.3 is the son of Yallavva and defendant No.4 is the wife of Andangouda and defendant No.5 is the daughter of Bharamavva. Therefore, they being legal heirs of Yallavva and Bharamavva are also having their rights of share in the suit schedule properties. Therefore, they are also entitled for share in the suit schedule properties. 7. Also, defendant Nos.3 to 5 have filed counterclaim for claiming their share in the suit schedule properties on the ground that, they being legal heirs of Yallavva, Bharamavva and Andangouda, they are entitled to - 7 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 an equal share as that of the plaintiff. Hence, filed counterclaim. 8. Based on the pleadings of the parties, the Trial Court has framed the following issues and additional issue: 1. Whether the plaintiffs prove that, they themselves and defendants are joint family members? 2. Whether the plaintiffs prove that, the suit schedule properties are joint family properties and they are having 1/4th share each by metes and bounds? 3. Whether the defendant No.1 proves that, late Fakkiragouda and Gangawwa have taken him as their adopted son on 15.02.1984 for which a registered adoption deed was executed before the Sub Registrar Shirahatti? 4. Whether the defendant No.1 proves that, the plaintiffs have already taken their share in terms of silver, gold and cash as contended in para No.8 of written statement? 5. Whether the plaintiffs are entitled for the relief’s sought for? 6. What order or decree? - 8 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 ADDITIONAL ISSUE 1. Whether the defendant No.3 to 5 proves that they are also entitled to the share in the suit schedule properties? 9. In order to prove the case, plaintiff No.1 is examined as PW-1 and two other witnesses as PW-2 and PW-3 and got marked documentary evidence as Exs.P-1 to P-43. Defendant No.1 is examined as DW-1, defendant No.4 as DW-3 and defendant No.5 as DW-4, and one more witness is examined as DW-2 and got marked documentary evidence as Exs.D-1 to D-7. 10. The Trial Court, after appreciating the evidence on record, decreed the suit by holding that the plaintiffs are entitled to 1/4th share each in the suit schedule 1(A) properties and dismissed the claim over the suit schedule 1(B) property. The counterclaim of defendant Nos.3 to 5 was rejected. The Trial Court assigned the reason that Hanumanthgouda had four children, among them Fakkiragouda and Andangouda are only two sons. Therefore, as per Ex.P-40 (mutation extracts), there was a partition in - 9 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 the year 1955 between Fakkiragouda and Andangouda and they were enjoying separate shares. 11. The suit is filed by daughter of Fakkiragouda and granddaughter of Fakkiragouda is in respect of claiming share in Fakkiragouda branch only, without touching the properties given to the share of Andangouda. Therefore, the suit was decreed by granting 1/4th share in the suit schedule 1(A) properties, which were exclusively allotted to the Fakkiragouda. Defendant No.1, who is adopted son of Gangavva and Fakkiragouda, is considered as a coparcener of the family of Fakkiragouda and Gangavva, thus granting 1/4th share each in the suit schedule 1(A) properties. Therefore, there is no partition claimed in respect of properties allotted to the share of Andangouda and the claim of defendant Nos.3 to 5 was rejected. Also, the counterclaim was also rejected. 12. Being aggrieved by it, defendant Nos.4 and 5 have preferred this appeal on the grounds that the Trial Court has failed to note that defendant No.4 being widow of Andangouda, is entitled to a share. Therefore, the rejection - 10 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 of the counterclaim is not correct. The Trial Court has not assigned reason that why defendant No.4 is not entitled to a share, despite being widow of Andangouda, who is entitled to an equal share. Hence, the impugned judgment and decree passed by the Trial Court is not correct. Further, the Trial Court has assigned reason why defendant No.5 is not entitled share in the properties, as she is granddaughter of Hanumanthagouda and the daughter of Bharamavva. Therefore, non-granting of a share to defendant Nos.3 to 5 and also rejecting their counterclaim is not correct. Hence, pray to allow the appeal by setting aside the judgment and decree passed by the Trial Court. 13. Heard arguments from both sides and perused the material placed on records. 14. Upon hearing of the parties, the points that would arise for my consideration as follows: i. Whether, under the facts and circumstances involved in the case, whether defendant Nos.4 and 5 (appellants herein) are entitled partition in the suit schedule 1(A) properties? - 11 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 ii. Whether, under the facts and circumstances involved in the case, the judgment and decree passed by the Trial Court in granting 1/4th share each in the suit schedule 1(A) properties to plaintiff Nos.1 and 2, requires any interference by this Court? 15. Learned counsel for appellants/defendant Nos.4 and 5 submitted that the genealogy produced by the plaintiff is not correct and it is not fully stated. Therefore, by filing the genealogy, defendant No.3 being son of Yallavva defendant No.4 being wife of Andangouda and defendant No.5 being daughter of Bharamavva are also entitled to a share in the suit schedule properties. 16. Further, submitted that there was no partition earlier among the sons and daughters of Hanumanthgouda, and all the suit schedule properties are ancestral and joint family properties. Therefore, defendant Nos.3, 4 and 5 are also entitled to a share in the suit schedule properties. 17. Further submitted that Ex.D-40 is not a Vardi proving that there was previous partition in the family and that merely presenting a Vardi, the partition could not be - 12 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 proved. Therefore, all the properties are joint family properties. Hence, prays for partition and allow the appeal. 18. On the other hand, learned counsel for respondents/plaintiffs submitted that the suit schedule 1(A) properties are only properties that are fallen to the share of Fakkiragouda, but not to the Andanagouda, it is admitted by defendant Nos.3 to 5 in their evidence. Therefore, the suit filed by the daughter of Fakkiragouda and granddaughter of Fakkiragouda pertains to Fakkiragouda, without touching upon the properties given in the share of Andangouda. Hence, the Trial Court was correct in granting decree of 1/4th share each to the plaintiffs while rejecting the claim of defendant Nos.3 to 5. 19. It is further submitted that Ex.P-40 is the mutation entry, according to which, in the year 1955, a Vardi was given to the revenue authorities indicating that Fakkiragouda and Andangouda had partitioned the properties among themselves and were enjoying the properties according to their shares. The claim in the suit is only between the coparceners of Fakkiragouda and does not - 13 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 include the properties that fallen to the share of Andangouda. Therefore, it is submitted that genealogy is correct, and this was rightly considered by the Trial Court. 20. Further, submitted that in respect of suit schedule 1(B) property, there was a partition effected by the Trial Court and therefore, the plaintiffs are entitled to a share in the house property, which is the suit schedule 1(B) property, as Section 23 of the Hindu Succession Act was omitted by virtue of amendment made to the Hindu Succession Act in the year 2005. Therefore, the plaintiffs are also entitled to a share in the suit schedule 1(B) property. 21. Learned counsel for the appellants/defendant Nos.4 and 5 has submitted the following genealogy: HANAMANTHAGOUDA (DEAD) 7.7.1977 =DYAMAVVA (DEAD) 1983 YALLAWWA FAKIRAGOUDA BHARAMAVVA ANDANAGOUDA =PARVATEWWA(D-4) GIRIJAWWA JAYAWWA SATYAVVA PARVATEWWA SHANTAVVA ISHWARAPPA (D2) (DEAD) (P-1) (D-5) GOVINDAGOUDA HALANAGOUDA SHILPA (P-2) (D-1) HANAMAPPA BASAPPA MALLWWA LAXMAVVA HULIYAPPA HOLALAPPA (D-3) - 14 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 22. Upon considering the genealogy produced by the plaintiffs/respondents, the plaintiffs have stated that Yallavva died having no issues and Bharamavva died unmarried. However, the genealogy produced by the appellants/defendant Nos.4 and 5 shows that Yallavva and Bharamavva have children. The plaintiffs have filed suit for partition as against defendant Nos.1 and 2, seeking 1/4th share. Defendant No.1 is genetic son of Andangouda and defendant No.4, who was adopted by Gangavva, the wife of Fakkiragouda as per Ex.D-1 (adoption deed). The fact that defendant No.1 was adopted to into the family of Fakkiragouda by Gangavva after the death of Fakkiragouda is not in dispute. Ex.D-1 proves that defendant No.1 was adopted into the family of Fakkiragoda and Gangavva. Thus, became coparcener in the family of Fakkiragouda and Gangavva. This adoption deed was executed in the year 1984 as Ex.D-1 and this fact is not disputed as it is a registered partition deed. 23. Ex.P-40 is the mutation extract, which proves that a Varadi (report) was submitted to the revenue - 15 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 authorities stating that on 18.02.1955, the sons of Hanumathgouda, namely Fakkiragouda and Andangouda, partitioned the properties belonging to their father among themselves. Ex.P-40 is a certified copy of the mutation extract, which proves that on 18.02.1955 there was an oral partition in the family and it was reported to the revenue authorities. Hence, Fakkiragouda and Andangouda received their respective shares accordingly, as reflected in the mutation extract Ex.P-40. Oral partition under Hindu law is also recognized. At that time as per prevailing law, daughters were not coparceners; therefore, the family members, Fakkiragouda and Andangouda, partitioned the properties among themselves. It is stated that the said partition was acted upon subsequently after making the oral partition and reported to the revenue authorities. 24. Defendant No.3 is the son of Yallavva, defendant No.4 is wife of Andangouda and defendant No.5 is one of the daughters of Bharamavva. During the lifetime of Yallavva and Bharamavva, they did not claim a partition in the properties belonging to Hanumathgouda, which is admitted - 16 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 by defendant Nos.4 and 5 in their evidence. The suit schedule item Nos.6, 7 and 8 properties have been allotted to the share of Fakkiragouda and it is supported by Ex.P-40, the mutation extract, which proves there was an earlier partition in the family. Defendant Nos.1, 4 and 5 in their evidence presented before the Trial Court during the trial, admitted that the properties that fell to the share of Andangouda were included in the suit. The suit schedule properties that fell to the share of Fakkiragouda are as per Ex.P-40, the mutation entry, which was prepared as per the Varadi (report) submitted to the revenue authorities. Therefore, it is established that there was earlier partition in the family and it was acted upon. As discussed above, defendant Nos.1,3 to 5 have admitted that during the lifetime of Yallavva and Bharamavva, they did not claim a partition in the family of Hanumanthgouda. This itself shows the fact that the partition effected between Fakkiragouda and Andangouda was acted upon and accepted by Yallavva and Bharamavva. Moreover, the properties that fell to the share of Andangouda were not included in the suit schedule - 17 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 properties for claiming partition. The properties that fell to the share of Fakkiragouda are the subject matters in the suit; therefore, this proves the fact that plaintiff No.1 being a daughter and plaintiff No.2 being a granddaughter of Fakkiragouda and Gangavva, have filed suit for claiming 1/4th share in respect of suit schedule properties of Fakkiragouda. Defendant No.1 has been adopted into the Fakkiragouda and Gangavva family through a registered partition deed executed in the year 1984, thus becoming a coparcener in the adopted family of Fakkiragouda and Gangavva. Consequently, defendant No.4 being wife of Andangouda, is not entitled to a share in the properties of Fakkiragouda since her husband already obtained share in the partition that took place in the year 1955, as discussed above. Therefore, had there not been a previous partition among the children of Hanumathgouda, then defendant Nos.3 to 5 would have also entitled to a share in the properties However, as per Ex.P-40/Varadi given to the revenue authorities, the partition between Fakkiragouda and Andangouda is proved and the said partition was acted upon - 18 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 Now, the plaintiffs have filed suit for partition only in respect of properties given to the share of Fakkiragouda. The properties given to the share of Andangouda are not included in the suit. Therefore, this proves that the plaintiffs are claiming partition only in respect of their father and grandfather/Fakkiragouda only. Consequently, it is rightly observed by the Trial Court that the partition is correct as it grants 1/4th share each to the plaintiff Nos.1 and 2 in the suit schedule 1(A) properties. Plaintiff No.1 being daughter of Fakkiragouda and Gangavva, is entitled 1/4th share and plaintiff No.2 being daughter of Jayamma and the granddaughter of Fakkriagouda and Ganagavva, is also entitled 1/4th share in the suit schedule 1(A) properties. 25. Defendant No.1 having been adopted to the family of Fakkiragouda and Gangavva, thus became a coparcener of the family and is entitled to a 1/4th share in the suit schedule properties. Additionally, defendant No.2 is also entitled to a 1/4th share in the suit schedule properties. This was correctly observed by the Trial Court while decreeing the suit of suit schedule 1(A) properties. - 19 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 Therefore, in this regard the judgment and decree passed by the Trial Court is correct and there is no need to cause interference by this Court. 26. So far as the claim made by the plaintiffs in respect of suit schedule 1(B) property, which is house property, although the old Section 23 of the Hindu Succession Act is omitted by Act 2005, defendant No.1 being the only son of Fakkiragouda and Gangavva and having been adopted into the family of Fakkiragouda and Gangavva, is residing in the building house (suit schedule 1(B) property). The plaintiffs are entitled to 1/4th share each in the suit schedule 1(A) landed properties; therefore, their claim for a share in the suit schedule 1(B) property is rejected, since the plaintiffs are residing with their respective families. Therefore, both on suit schedule 1(A) and 1(B) properties, the findings given by the Trial Court shall not be considered and also defendant Nos.3 to 5 are not entitled any share in the properties as above discussed. Therefore, the counterclaim of defendant Nos.3 to 5 is also dismissed. - 20 - NC: 2025:KHC-D:1285 RFA No. 100344 of 2017 C/W RFA.CROB No. 100001 of 2019 Accordingly, I answer point Nos.1 and 2 in the negative. Hence, both the appeals are liable to be dismissed. 27. Therefore, I proceed to pass the following: ORDER i. RFA No.100344/2017 and RFA Crob.No.100001/2019 are dismissed. ii. The judgment and decree dated 05.08.2017, passed by the Addl. Senior Civil Judge, Gadag, in O.S.No.86/2009 is hereby confirmed. iii. No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MRK-para 1 to 6. SRA-para 7 to 25 PMP-para 26 to end List No.: 1 Sl No.: 37xz