- 1 - NC: 2025:KHC-D:4727-DB RFA No. 100481 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 12TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO.100481 OF 2019 (DEC/PAR) BETWEEN: 1. RAYAPPA S/O. SIDDAPPA KILLED AGE: 56 YEARS, OCC: AGRICULTURE. 2. SHIVALINGAPPA S/O. SIDDAPPA KILLED AGE: 54 YEARS, OCC: AGRICULTURE, BOTH ARE R/O: KARIKATTI, TQ: SAUNDATTI, NOW AT: NANDAGOKUL BASAVA COLONY, NEAR PRIMARY SCHOOL, GOKUL HUBBALLI, DIST: DHARWAD-580030. …APPELLANTS (BY SRI. SRINIVAS B. NAIK, ADVOCATE) AND: 1. SMT. BASAVVA W/O. BASAPPA SATANNAVAR AGE: 50 YEARS, OCC: HOUSEHOLD, R/O: KARIKATTI, TQ: SAUNDATTI, DIST: BELAGAVI-591126. 2. FAKKIRAPPA S/O. SIDDAPPA KILLED AGE: 59 YEARS, OCC: AGRICULTURE, R/O: KARIKATTI, TQ: SAUNDATTI, DIST: BELAGAVI-591126. …RESPONDENTS (BY SRI. J.S.SHETTY, ADVOCATE FOR R1; NOTICE TO R2 IS SERVED) Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.04.25 14:30:06 +0530 - 2 - NC: 2025:KHC-D:4727-DB RFA No. 100481 of 2019 THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 22.03.2019 PASSED IN O.S.NO.110/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE, SAUNDATTI, DISMISSING THE SUIT FILED FOR DECLARATION, PARTITION AND SEPARATE POSSESSION, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL IS COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) The captioned appeal is by the plaintiffs assailing the judgment and decree rendered in O.S.No.110/2017. The plaintiffs’ suit seeking the relief of partition and separate possession is dismissed by the Court below. The said judgment is under challenge. 2. For the sake of convenience, the parties are referred to as per their rank before the trial Court. 3. The facts leading to the case are that; Before we examine the issue on hand, we deem it appropriate to cull out the family tree, which is as under: - 3 - NC: 2025:KHC-D:4727-DB RFA No. 100481 of 2019 Fakirappa Killed (expired on 21.05.1959) Siddappa Gadigeppa (expired on 21.02.2013) Shivanavva-wife D-2 Fakirappa Rayappa Shivalingappa Basavva D-3 Plff.1 Plff-2 D-1 4. One Fakirappa .Killed is shown to be the propositus, who had two sons namely Siddappa and Gadigeppa. The plaintiffs and defendants represent the branch of Siddappa. Therefore, the dispute is only inter se between the legal heirs of Siddappa. The plaintiffs- Rayappa and Shivalingappa are the sons of said Siddappa. The present suit is filed seeking relief of partition and separate possession. The plaintiffs contend that the suit schedule properties were allotted to their father Siddappa in a family partition between Siddappa and Gadigeppa. The plaintiffs claim that pursuant to the partition, mutation was effected under ME No.4989 and plaintiffs’ fathers - 4 - NC: 2025:KHC-D:4727-DB RFA No. 100481 of 2019 name was recorded to the suit schedule properties. The plaintiffs have specifically pleaded that after the demise of their father Siddappa in the year 2013, they were under the bona-fide impression that defendant No.3 is managing the properties. However, in the month of August-2017, defendant No.1 attempted to alienate the suit schedule properties and it was only then that the plaintiffs gained knowledge that defendant No.1 is asserting title based on the gift deed dated 12.09.2003 executed by their father Siddappa. The plaintiffs contended that suit schedule properties are the joint family ancestral properties and therefore, their father Siddappa had no absolute right to gift the properties in favour of his daughter Basavva, who is none other than the sisters of plaintiffs herein. The plaintiffs alleged that their father Siddappa had no authority to gift the joint family ancestral property and same is null and void. The plaintiffs also alleged that the gift deed is created and concocted by defendant No.1. The plaintiffs also alleged that their father Siddappa during his lifetime never handed over the actual possession of the - 5 - NC: 2025:KHC-D:4727-DB RFA No. 100481 of 2019 suit schedule properties to defendant No.3. Hence, the present suit filed seeking the relief of partition and separate possession. 5. On receipt of summons, though defendants No.1 to 3 put in their personal appearance by engaging a counsel, however they failed to file the written statement. Though defendants No.1 was permitted to file the written statement by allowing I.A.No.5, the written statement filed by her was not taken on record as she failed to pay the cost. The trial Court having examined the pleadings in the plaint and evidence let in by the plaintiffs, has proceeded to dismiss the suit on the ground that the gift deed is of the year 2003 and therefore, the plaintiffs suit for partition is barred by limitation as it is not filed within 12 years. The trial Court was also of the view that the relief of declaration questioning the gift deed beyond 3 years as per Article 58 of the Limitation Act also cannot be entertained. - 6 - NC: 2025:KHC-D:4727-DB RFA No. 100481 of 2019 6. The trial Court referring to the cause has also found that the present suit without including the property bearing Sy.No.169/1 of Karikatti village, is not maintainable. Therefore, the trial Court was of the view that the suit for partial partition was not maintainable. 7. Heard the learned counsel appearing for the plaintiffs and defendants No.1 to 3. Perused the records. 8. We have given our anxious consideration to the oral and documentary evidence. 9. The following points would arise for consideration: i) Whether the finding of the trial Court that the registered gift deed executed by Siddappa in favour of defendant No.1 is dated 12.09.2003 and therefore, the present suit filed in the year 2017, is barred by limitation and is perverse, palpably erroneous and warrants interference at the hands of this Court? ii) What order? - 7 - NC: 2025:KHC-D:4727-DB RFA No. 100481 of 2019 FINDINGS ON POINT No.(i):- 10. The records disclose that Siddappa executed a registered gift deed in favor of defendant No.1, Basavva, who is his daughter. A meticulous examination of the plaint averments reveals that there is no dispute regarding the fact that the suit schedule properties were originally owned by propositus Fakirappa. Upon his demise, his two sons, Siddappa and Gadigeppa, succeeded to these properties. This factual backdrop raises a pertinent issue concerning the nature of the properties in question. The fundamental legal question that arises is whether the properties are ancestral in nature or were acquired by Siddappa and Gadigeppa in their individual capacity. The mode of devolution of these properties after Fakirappa’s death remains ambiguous. If the suit schedule properties were ancestral in the hands of Fakirappa, a further legal scrutiny is required to determine whether Siddappa had the authority to execute a registered gift deed in favor of defendant No.1. Conversely, if the properties were self- - 8 - NC: 2025:KHC-D:4727-DB RFA No. 100481 of 2019 acquired by Fakirappa, then Siddappa and Gadigeppa would inherit these properties in their individual capacities under Section 8 of the Hindu Succession Act. Notably, there are no clear pleadings addressing this issue, and defendant No.1 was not given an opportunity to contest the suit by filing a written statement, which is a crucial aspect requiring reconsideration. 11. The validity of the gift deed executed by Siddappa hinges on the essential question of whether he acquired these properties as a coparcener under the principle of survivorship or in his individual capacity as per Section 8 of the Hindu Succession Act. If it is established that Siddappa acquired these properties as a coparcener through survivorship under Section 6 of the Hindu Succession Act, then, in light of the established legal position pronounced by the Division Bench of this Court, the execution of a gift deed in respect of coparcenary properties is void ab initio. In such circumstances, there is no necessity to independently challenge the gift deed, as - 9 - NC: 2025:KHC-D:4727-DB RFA No. 100481 of 2019 its very execution would be deemed legally void. This legal position has been well settled by a consistent line of judicial pronouncements, including the decision rendered by the Division Bench of this Court in the case of Babu Mother Savavva Navelgund and others vs. Gopinath1. Therefore, a thorough factual and legal analysis is required to ascertain the nature of the properties and the legitimacy of the gift deed executed by Siddappa. 12. Furthermore, it is a well-settled legal principle that a suit for partial partition, although generally not maintainable, should not be outrightly dismissed by the Court merely on the ground that all suit schedule properties have not been included. The proper judicial approach in such cases, as consistently held by this Court, is to notify the plaintiffs and afford them an opportunity to include all the omitted properties. The Court has to exercise its discretion judiciously by directing the plaintiffs to furnish details of all properties constituting the joint 1 ILR 1999 KAR 3129 - 10 - NC: 2025:KHC-D:4727-DB RFA No. 100481 of 2019 family estate. Only upon the plaintiffs’ failure to comply with such directions should the suit be considered for dismissal on the ground of non-inclusion of all properties. This principle has been laid down to ensure that substantive justice is rendered in matters pertaining to partition suits and that no party is prejudiced due to mere technicalities. 13. Upon a detailed examination of the material available on record, it is evident that the trial Court did not conduct a proper inquiry into the vital issues arising in the suit. The crucial question of whether the plaintiffs are required to seek a declaration that the gift deed executed by Siddappa is null and void entirely depends on the nature of the suit schedule properties, as discussed earlier. Additionally, the plea of limitation, which has been raised on the premise that the gift deed was executed in the year 2003, will become relevant only if the defendants are able to establish that Siddappa and Gadigeppa inherited the properties through their father Fakirappa Killed under - 11 - NC: 2025:KHC-D:4727-DB RFA No. 100481 of 2019 Section 8 of the Hindu Succession Act. The trial Court failed to properly analyze and consider these significant aspects. If the plaintiffs succeed in demonstrating that the suit schedule properties are joint family ancestral properties and that the gift deed was executed without authority, then there would be no necessity for them to seek a declaratory relief challenging the gift deed. Another essential issue that requires thorough inquiry is whether, by virtue of the registered gift deed, the plaintiffs were ousted from possession of the suit schedule properties. The question of limitation under Article 109 of the Limitation Act, which prescribes a 12-year period for a suit for partition by an excluded member, would require careful examination. This aspect can only be determined through a full-fledged trial where defendant No.1 must lead evidence and establish the alleged ouster of the plaintiffs. 14. In view of the aforementioned considerations, this Court finds that a fresh adjudication of the matter is necessary, particularly in light of the fact that defendant - 12 - NC: 2025:KHC-D:4727-DB RFA No. 100481 of 2019 No.1 was not permitted to contest the suit, and her written statement was not taken on record due to non-payment of costs. This procedural lapse has resulted in a failure to provide defendant No.1 a fair opportunity to present her case, which is essential in a partition suit involving joint family properties. Therefore, it is imperative that the matter be remitted back to the trial Court for a comprehensive re-examination. The trial Court is directed to permit all parties to lead further evidence to substantiate their respective claims. Additionally, the plaintiffs shall be directed to include any omitted properties in the suit schedule, in compliance with the settled legal principles governing partition suits. To ensure procedural fairness, the written statement filed by the defendants shall be taken on record, subject to the payment of costs of Rs.1,000/-. 15. Taking into account all the significant aspects discussed above, this Court is of the firm view that a fresh consideration of the matter is warranted. Since the - 13 - NC: 2025:KHC-D:4727-DB RFA No. 100481 of 2019 present suit is for partition and involves parties constituting a joint family, it is essential to recognize their pre-existing rights in the suit schedule properties. Furthermore, it is a well-settled legal principle that the right to seek partition constitutes a recurring cause of action, thereby necessitating a thorough adjudication. Keeping all contentions open, this Court finds that the judgment of the trial Court is liable to be set aside. Consequently, the matter is remanded back to the trial Court with specific directions to accept the written statement filed by defendant No.1 and to adjudicate upon all issues after permitting the parties to lead further evidence. Accordingly, point No.1 is answered in the ‘affirmative’. FINDING ON POINT NO.(ii):- 16. For the foregoing reasons, we proceed to pass the following: - 14 - NC: 2025:KHC-D:4727-DB RFA No. 100481 of 2019 ORDER i) Appeal is allowed. ii) The impugned judgment and decree dated 22.03.2019 passed in O.S.No.110/2017 by learned Senior Civil Judge, Saundatti is hereby set-aside. iii) The matter is remitted back to the trial Court with a direction to enable all the parties to lead further evidence in the matter. iv) The plaintiffs are directed to include the properties, which were left out as held by the trial Court. v) The written statement filed by the defendants shall be taken on record subject to payment of cost of Rs.1,000/-. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE AM Ct:vh List No.: 1 Sl No.: 25