- 1 - HC-KAR NC: 2025:KHC:25837 RFA No. 256 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR FIRST APPEAL NO. 256 OF 2019 (PAR/INJ) BETWEEN: 1. B. PAULIN W/O JOSEPH D/O LATE C. BALAPPA AGED ABOUT 55 YEARS R/AT NO.39, MARIANAPALYA MOTHER THERESA ROAD, HA FARM POST BENGALURU-560 024. 2. B. AGNESH W/O A. IRUDAYARAJ D/O LATE C. BALAPPA AGED ABOUT 59 YEARS R/AT NO.756, 1ST CROSS PATEL KULLAPPA ROAD RAMASWAMY PALYA KAMMANAHALLI MAIN ROAD MS NAGAR POST, BENGALURU-560 033. …APPELLANTS (BY SRI. AVINASH .P, ADVOCATE) AND: B. PHILOMINA (SINCE DEAD) W/O LATE C. BALAPPA (THE 1ST AND 2ND APPELLANTS/1ST AND 2ND PLAINTIFFS ARE THE DAUGHTERS OF THE DECEASED Digitally signed by NAGARAJA B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:25837 RFA No. 256 of 2019 1. 1ST DEFENDANT AND THE 1ST AND 2ND RESPONDENTS/2ND AND 3RD DEFENDANTS ARE THE SONS OF THE DECEASED 1ST DEFENDANT THEY BEING THE LRS OF THE DECEASED DEFENDANT NO.1 WERE ALREADY BROUGHT ON RECORD IN THE TRIAL COURT) B. UDAY KUMAR AGED ABOUT 57 YEARS S/O LATE C. BALAPPA R/AT NO.233, ULLASAPPA ROAD THOMAS TOWN POST, KAMMANAHALLI BENGALURU-560 084. 2. B. AROKYARAJ S/O LATE C. BALAPPA AGED ABOUT 52 YEARS R/AT 233, ULLASAPPA ROAD THOMAS TOWN POST, KAMMANAHALLI BENGALURU-560 084. 3. NG NIRMALA W/O HN VIJAYA RAGHAVA REDDY AGED ABOUT 58 YEARS R/AT HULIMANGALA VILLAGE ANEKAL TALUK. …RESPONDENTS (BY SRI. SAMPATH .A, ADVOCATE FOR R1 AND R2; SRI. ZAHEER AHMED, ADVOCATE FOR R3) THIS RFA IS FILED UNDER SEC.96 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 17.01.2018 PASSED IN OS NO.3854/2012 ON THE FILE OF THE XLII ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY DISMISSING THE SUIT FOR PARTITION, MESNE PROFITS, PERMANENT INJUNCTION. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:25837 RFA No. 256 of 2019 CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM ORAL JUDGMENT The captioned appeal is by the unsuccessful plaintiffs who are aggrieved by the dismissal of a partition suit in O.S.No.3854/2012. 2. For the sake of brevity, the parties are referred to as per their rank before the Trial Court. 3. The facts leading to the case are as under: Plaintiff Nos.1 and 2, who are the daughters of defendant No.1, have instituted the present suit seeking partition and separate possession of the suit schedule properties, contending that the same constitute joint family ancestral properties originally owned by their father, late C. Balappa. It is further averred that defendant Nos.2 and 3 are their siblings. Insofar as Item No.1 of the suit schedule is concerned, the plaintiffs have seriously disputed the validity of the transaction in favour - 4 - HC-KAR NC: 2025:KHC:25837 RFA No. 256 of 2019 of defendant No.4–N.G. Nirmala, asserting that their father C. Balappa was paralysed, incapable of attending to day-to-day affairs, and was entirely dependent on family members at the relevant time. Regarding Item No.2, the plaintiffs have categorically claimed that the property is ancestral in nature. The plaintiffs have also challenged the validity of the alleged testamentary arrangement made in respect of Item No.1 and specifically contended that the Will and the confirmation deed dated 23.01.2012 are illegal, fabricated, and void ab initio. They further alleged that, after the demise of their father, defendant Nos.2 and 3, being male members of the family, have been managing the suit schedule properties and taking undue advantage of the plaintiffs’ lack of knowledge, have acted prejudicially to their interests, thereby necessitating the institution of the present suit for partition. Upon service of summons, defendant Nos.1 to 4 entered appearance and filed written statements. - 5 - HC-KAR NC: 2025:KHC:25837 RFA No. 256 of 2019 Defendant Nos.1 to 3 filed a common written statement, whereas defendant No.4, who claims to have purchased Item No.1 of the suit schedule, filed a separate written statement contesting the suit. Defendant Nos.1 to 3 denied the claim of the plaintiffs and specifically contended that Item No.1 was the self-acquired property of late C. Balappa, having been purchased out of his own earnings. They further contended that Item No.2 of the suit schedule has been wrongly included in the suit and that site Nos.24 and 31 were never owned by the propositus, late C. Balappa. Defendant No.4, the alleged purchaser of Item No.1 property, also contested the suit by asserting that the said property had already been alienated by C. Balappa through a registered General Power of Attorney executed in favour of one John Thayil and Smt. Jolly Jose Murickan. It is thus contended that the plaintiffs cannot maintain the present suit, as the property had already been transferred by a valid sale transaction. - 6 - HC-KAR NC: 2025:KHC:25837 RFA No. 256 of 2019 Both parties led oral and documentary evidence in support of their respective claims. Upon appreciation of the same, the Trial Court dismissed the suit on two primary grounds. Firstly, the Trial Court observed that the transaction in favour of defendant No.4 had already been challenged by C. Balappa during his lifetime, and that O.S.No.520/2009, which questions the validity of the sale deed in favour of defendant No.4, was pending adjudication. Hence, the Trial Court held that the relief of partition with respect to Item No.1 was not maintainable in the present suit. Secondly, with regard to Item No.2, the Trial Court found that the plaintiffs had failed to establish that site Nos.24 and 31 were ever owned by C. Balappa. It also took note of the fact that during the course of trial, the plaintiffs had abandoned their claim in respect of site Nos.24 and 31 (referred to as Schedule II) and attempted to set up a new case by asserting that said sites were renumbered as site Nos.3 and 4. Based on the rebuttal evidence, the Trial Court concluded that site - 7 - HC-KAR NC: 2025:KHC:25837 RFA No. 256 of 2019 Nos.3 and 4 were admittedly owned by defendant No.1 and accordingly dismissed the suit in respect of Item No.2 as well. 4. Heard the learned counsel for the plaintiffs and the learned counsel appearing for defendant Nos.1 to 3. Perused the material on record. The following point arises for consideration in this appeal: 1) Whether the judgment and decree rendered by the Trial Court suffers from perversity, serious infirmity and warrants interference? 2) What order? Finding on the above Points: 5. Upon an independent and comprehensive appraisal of the oral and documentary evidence on record, this Court is of the considered view that the plaintiffs' claim for partition in respect of Item No.1 of the suit schedule property is clearly premature. The records categorically establish that late C. Balappa, during his - 8 - HC-KAR NC: 2025:KHC:25837 RFA No. 256 of 2019 lifetime, had instituted a suit in O.S.No.520/2009, challenging the alienation of Item No.1 property effected through a registered General Power of Attorney in favour of one John Thayil and Smt. Jolly Jose Murickan, pursuant to which a registered sale deed was executed in favour of defendant No.4. In light of this pending litigation, this Court is of the opinion that the plaintiffs cannot maintain a claim for partition in respect of Item No.1 property without first establishing their right and title through a successful outcome in the said suit. It is only upon the adjudication of the validity of the sale transaction impugned in O.S.No.520/2009 that the plaintiffs would be in a position to seek a share in the said property. Therefore, any relief sought in respect of Item No.1 at this juncture is clearly untenable and premature. 6. Insofar as Item No.2 of the suit schedule is concerned, which comprises site Nos.24 and 31, the plaintiffs have completely failed to discharge the burden of proving that these sites were owned by their father, - 9 - HC-KAR NC: 2025:KHC:25837 RFA No. 256 of 2019 late C. Balappa. In fact, the plaintiffs have not produced any credible evidence to establish title or ownership of the said sites in favour of their father. On the contrary, the rebuttal evidence adduced by defendant No.1, who is the mother of the plaintiffs, is substantial and cogent. Defendant No.1 has produced documentary evidence to demonstrate that site Nos.3 and 4 which the plaintiffs now claim to be renumbered versions of the originally claimed site Nos.24 and 31 were in fact purchased by her under a registered sale deed dated back to the year 1964. This document is marked as Ex.D-3. Furthermore, defendant No.1 has executed gift deeds in favour of defendant Nos.2 and 3 in respect of site Nos.3 and 4, and these gift deeds are marked as Exs.D-4 and D-8. The plaintiffs have not rebutted these documents nor have they laid any foundation in the pleadings to dispute these transactions. 7. Significantly, it must also be noted that the plaintiffs have not taken steps to amend the plaint to - 10 - HC-KAR NC: 2025:KHC:25837 RFA No. 256 of 2019 include any relief with respect to site Nos.3 and 4, despite the assertion made during trial that site Nos.24 and 31 are in fact the same properties subsequently renumbered. In the absence of an amendment to the pleadings and in light of the total absence of documentary evidence to prove that late C. Balappa ever owned site Nos.24 and 31, the claim for partition in respect of Item No.2 is without legal foundation and cannot be sustained. It is well settled that no relief can be granted in respect of properties that are not properly pleaded and for which no evidence is adduced. 8. The findings recorded by the Trial Court are fully supported by the evidence on record and do not suffer from any legal infirmity warranting interference. The conclusions drawn by the Trial Court are based on strong rebuttal evidence led by the defendants, particularly the registered documents which go unchallenged by the plaintiffs. While the Trial Court rightly dismissed the suit in its entirety, this Court deems - 11 - HC-KAR NC: 2025:KHC:25837 RFA No. 256 of 2019 it appropriate to clarify that the plaintiffs’ right to claim partition in respect of Item No.1 property is not foreclosed. Such a right would necessarily depend on the outcome of the pending proceedings in O.S.No.520/2009, where the legality and validity of the sale transaction in favour of defendant No.4 is the subject matter of adjudication. If the said sale is declared null and void, the plaintiffs may then be entitled to seek partition in respect of Item No.1. However, as of now, the claim is premature and cannot be entertained. 9. In view of the foregoing discussion, this Court finds no merit in the present appeal. Accordingly, the appeal stands dismissed. However, it is clarified that the plaintiffs' right, if any, to seek partition in respect of Item No.1 of the suit schedule property shall be subject to and contingent upon the result of the suit in O.S.No.520/2009, which is - 12 - HC-KAR NC: 2025:KHC:25837 RFA No. 256 of 2019 pending adjudication before the competent Civil Court. All contentions of the parties in that regard are left open. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE CA List No.: 1 Sl No.: 19