- 1 - NC: 2025:KHC-D:1395-DB RFA No. 100559 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24TH DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100559 OF 2019 (PAR/POS) BETWEEN: MANJUNATH S/O. SRIMANT LATTI AGE: 28 YEARS, OCC: STUDENT AND AGRICULTURE, R/O: MUDALGI, TQ: GOKAK, DIST: BELAGAVI-582101. …APPELLANT (BY SRI. DINESH M. KULKARNI, ADVOCATE) AND: 1. SRI. RAMAPPA S/O. MARUTI LATTI SINCE DECEASED BY HIS LRS 1A. SMT. MALLAVVA W/O. RAMAPPA LATTI, AGE: 65 YEARS, OCC: HOME MAKER, R/O: DONAWAD, TQ: CHIKKODI, DIST: BELAGAVI. 1B. SRI. AJIT S/O. RAMAPPA LATTI, AGE: 47 YEARS, OCC: AGRICULTURE, R/O: DONAWAD, TQ: CHIKKODI, DIST: BELAGAVI. 1C. SMT. BHARATI D/O. RAMAPPA LATTI, AGE. 49 YEARS, OCC: HOME MAKER, R/O: DONAWAD, TQ: CHIKKODI, DIST: BELAGAVI. Digitally signed by BHARATHI H M Location: HIGH COURT OF KARNATAKA Date: 2025.02.06 15:04:02 +0530 - 2 - NC: 2025:KHC-D:1395-DB RFA No. 100559 of 2019 1D. SMT. MADEVI D/O. RAMAPPA LATTI, AGE: 46 YEARS, OCC: HOME MAKER, R/O: DONAWAD, TQ: CHIKKODI, DIST: BELAGAVI. 1E. SMT. ARATI D/O. RAMAPPA LATTI, AGE:44 YEARS, OCC: HOME MAKER, R/O: DONAWAD, TQ: CHIKKODI, DIST: BELAGAVI. 1F. SMT. SANGEETA D/O. RAMAPPA LATTI, AGE: 42 YEARS, OCC: HOME MAKER, R/O: DONAWAD, TQ: CHIKKODI, DIST: BELAGAVI. 1G. SMT. SAVAKKA D/O. RAMAPPA LATTI, AGE: 40 YEARS, OCC: HOME MAKER, R/O: DONAWAD, TQ: CHIKKODI, DIST: BELAGAVI. 2. SRI. SRIMANT S/O. MARUTI LATTI SINCE DECEASED BY HIS LRS, 2A. SMT. RAJESHWARI W/O. SHRIMANT LATTI, AGE: 52 YEARS, OCC: AGRICULTURE, R/O: MUDALGI, TQ: GOKAK, DIST: BELAGAVI-582101. 3. SHASHIDHAR S/O. SHRIMANT LATTI, AGE: 32 YEARS, OCC: AGRICULTURE, R/O: MUDALGI, TQ: GOKAK, DIST: BELAGAVI-582101. 4. SHASHIKANT S/O. SHRIMANT LATTI, AGE: 30 YEARS, OCC: AGRICULTURE, R/O: MUDALGI, TQ: GOKAK, DIST: BELAGAVI-582101. 5. BASAVARAJ S/O. MARUTI LATTI AGE: 41 YEARS, OCC: AGRICULTURE, - 3 - NC: 2025:KHC-D:1395-DB RFA No. 100559 of 2019 R/O: DONAWAD, TQ: GOKAK, DIST: BELAGAVI-582101. 6. SHANKAR S/O. BASAPPA TAVANSHI AGE: 69 YEARS, OCC: AGRICULTURE, R/O: MUDALGI, TQ: GOKAK, DIST: BELAGAVI-582101. 7. SHANMUKH S/O. MARUTI LATTI AGE: 65 YEARS, OCC: AGRICULTURE, R/O: MUDALGI, TQ: GOKAK, DIST: BELAGAVI-582101. 8. SHIVANAND S/O. MARUTI LATTI AGE: 61 YEARS, OCC: AGRICULTURE, R/O: MUDALGI, TQ: GOKAK, DIST: BELAGAVI-582101. …RESPONDENTS (BY SRI. CHETAN MUNNOLI, ADVOCATE FOR R6; R1-DECEASED; R1(A) TO R1(G) SERVICE OF NOTICE HELD SUFFICIENT V/O. DATED 20.06.2024; R3, R5, R7 AND R8 ARE SERVICE HELD SUFFICIENT V/O. DATED 21.04.2024; NOTICE TO R2 AND R4 SERVED) THIS RFA IS FILED UNDER SEC. 96 (1) READ WITH ORDER 41 RULE 1 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DATED:03.09.2019 PASSED IN O.S.NO.85/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, GOKAK, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 4 - NC: 2025:KHC-D:1395-DB RFA No. 100559 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) 1. This Regular First Appeal is filed by the plaintiff/appellant, challenging the judgment and preliminary decree dated 03.09.2019, passed in OS No.85/2013, by the learned Prl. Senior Civil Judge, Gokak. 2. For convenience, the parties are referred to, based on their ranking before the trial Court. The appellant was the plaintiff, and the respondents were the defendants. 3. Brief facts leading rise to the filing of this regular first appeal as follows: 4. The Plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that, one Maruthi was the original propositus of the family of the plaintiff and defendants. The propositus and his wife died. Defendants No.1, 2 and 5, and defendants No.7 and 8 are their children. Defendants No.3, 4 and the plaintiff are the children of defendant No.2. It is the case of the plaintiff that the suit schedule properties were acquired by defendant No.2 out of the joint family income. Hence, the suit schedule properties are the joint family properties of the - 5 - NC: 2025:KHC-D:1395-DB RFA No. 100559 of 2019 plaintiff and defendants. It is contended that the plaintiff and defendant Nos.1 to 5 are the members of a Hindu undivided joint family and there is no partition effected between the plaintiffs and the defendant Nos.1 to 5. The plaintiff requested the defendants to effect a partition but defendant Nos.1 to 5 refused to effect a partition. Hence, a cause of action arose for the plaintiff to file the suit for partition and separate possession. It is contended that defendant No.2 had no right to sell suit items No.1 and 2 of ‘A’ schedule property in favour of defendant No.6. It is contended that the sale deed executed by defendant No.2 in favour of defendant No.6 is not binding on the plaintiffs. Hence, prays to decree the suit. 5. Defendant Nos.1 and 5 filed a common written statement admitting the case of the plaintiff and they stated that, out of the income derived from ancestral joint family properties, situated at Donwad village, suit house properties situated Mudalagi were purchased. Defendant No.2 has no absolute right to alienate the property. - 6 - NC: 2025:KHC-D:1395-DB RFA No. 100559 of 2019 6. Defendant No.4 filed a written statement admitting the averments made in the plaint and prayed to allot his share, and he is ready to pay the Court fee. 7. Defendant No.2 filed a written statement stating that he had purchased the properties at Mudalagi. As he could not get loan from a bank and he was in need money, approached defendant No.6 to help him. Defendant No.6, on a condition, that defendant No.2 shall execute a registered sale deed as a security, was ready to finance. Defendant No.2 executed a registered sale deed towards the security of the loan advanced by defendant No.6. It was agreed that after repayment of the entire loan amount, defendant No.6 would execute the reconveyance deed in favour of defendant No.2. The sale in respect of the house property situate at Mudalagi is not the out sale. Hence, prayed to decree the suit. 8. Defendant No.6 filed a written statement denying the averments made in the plaint. It is stated that the plaintiff and defendant No.3 and 4 are under the care and custody of defendant No.2. He was looking after the - 7 - NC: 2025:KHC-D:1395-DB RFA No. 100559 of 2019 welfare of his children and had no adverse interest against them in any manner. The suit house properties are his self- acquired properties. Out of his skill and efforts, he had purchased the said house properties. Neither the plaintiff nor defendant Nos.3 and 4 have got any kind of right over the said properties. Defendant No.2 was doing real estate business. He has invested in sale consideration for the benefit and welfare of the family. It is contended that defendant No.2 got filed the present suit through the plaintiff. It is contended that the suit for partition and separate possession without seeking the relief of declaration with respect to the registered sale deed executed by defendant No.2 in favour of defendant No.6 is not maintainable. Defendant No.6 filed an additional written statement contending that, he is the bona fide purchaser for a value. It is contended that he had made alterations and renovation of the properties by investing more than Rs.5,00,000/-. Defendant No.2 has sold the properties for his family’s necessity. It is also contended the plaintiff has not included all the joint family properties in the suit. Hence, - 8 - NC: 2025:KHC-D:1395-DB RFA No. 100559 of 2019 the suit for partition and separate possession is not maintainable. Hence, prays to dismiss the suit. 9. The trial Court, based on the pleadings of the parties, framed the following issues: Issues 1. Whether plaintiff proves that suit properties at Mudalagi were acquired by defendant No-2 out of the joint family income? 2. Whether plaintiff proves he has got a share in all the suit properties? 3. Whether plaintiff proves that sale made in favour of defendant-6 by defendant-2 is not binding on his share? 4. Whether plaintiff is entitled for relief as prayed for? 5. What order or decree? 10. The plaintiff to prove his case, examined himself as PW.1 and marked 9 documents as Exs.P-1 to P-9. In rebuttal, defendant No.6 was examined as DW.1, and defendant No.2(a) was examined as DW.2 and the brother of - 9 - NC: 2025:KHC-D:1395-DB RFA No. 100559 of 2019 DW.2 was examined as DW.3 and marked 14 documents as Exs.D-1 to D-14. 11. The trial Court, after recording the evidence, hearing on both sides, and on the assessment of oral and documentary evidence, answered Issue No.1, 2, and 4 in the negative, Issue No.3 in the affirmative, and Issue No.5 as per the final order. 12. The suit of the plaintiff was dismissed vide judgment dated 03.09.2019. The plaintiff, aggrieved by the judgment and preliminary decree passed in O.S. No.85/2013, filed this regular first appeal. 13. Heard the learned counsel for the plaintiff and the learned counsel for defendant No.6. 14. Learned counsel for the plaintiff submits that, the trial Court without framing necessary issues, has dismissed the suit. He also submits that, the trial Court could have provided an opportunity to the plaintiff to include the other joint family properties. The trial Court could not have dismissed the suit for non-joinder of necessary properties. He also submits that, item Nos.1 and 2 of suit ‘A’ - 10 - NC: 2025:KHC-D:1395-DB RFA No. 100559 of 2019 schedule properties are the ancestral joint family properties of the plaintiff and defendant Nos.1 to 5. Defendant No.2 alone has no right to execute the registered sale deed in favour of defendant No.6. Defendant No.6 has not acquired any right, title or interest under a registered sale deed executed by defendant No.2 in favour of defendant No.6. Hence, on these grounds, he prays to allow the appeal. 15. To buttress his argument, he has placed reliance on the judgment of the Co-ordinate Bench of this Court in Niroop D.J. vs. D.A. Jayarame Gowda and others1. He submits that, the matter may be remitted to the trial court with a liberty to the plaintiff, to file an application to include all the properties. Hence, on these grounds, he prays to allow the appeal. 16. Per contra, learned counsel for defendant No.6 submits that, items Nos.1 and 2 of suit “A” schedule properties are self-acquired properties of defendant No.2. He sold suit item Nos.1 and 2 of suit “A” schedule properties in favour of defendant No.6 for family and legal necessity. 1 HCR 2024 KANT. 2 - 11 - NC: 2025:KHC-D:1395-DB RFA No. 100559 of 2019 The sale deed executed by defendant No.2 in favour of defendant No.6 is binding on the plaintiff, and the other defendants. He also submits that the plaintiff has not challenged the registered sale deed executed by defendant No.2 in favour of defendant No.6. Hence, the suit for mere partition and separate possession is not maintainable. He also submits that, the suit filed by the plaintiff is collusive. Defendant Nos.1 to 5 have filed a written statement admitting the relationship between the parties and some of the defendants have sought for a counter claim for partition and separate possession. Hence, he submits that defendant No.2 got filed the suit through, the plaintiff to harass defendant No.6. He also submits that, the plaintiff has not included the other joint family properties. Hence, the suit for partial partition is not maintainable. He submits that the trial Court was justified in dismissing the suit of the plaintiff on the ground that the suit for partial partition is not maintainable. Hence, the judgment and preliminary decree passed by the trial Court is just and proper and do not call - 12 - NC: 2025:KHC-D:1395-DB RFA No. 100559 of 2019 for any interference. Hence, on these grounds, he prays to dismiss the appeal against defendant No.6. 17. Perused the records and considered the submission of the learned counsel for the parties. 18. The points that arise for our consideration are: i) Whether the suit filed by the plaintiff is maintainable without including all other existing joint family properties? ii) Whether the sale made by defendant No.2 is binding on the plaintiff and other defendants in view of the contention raised by defendant No.6 that the sale was for the benefit of the joint family? iii) Whether the plaintiff prove that the judgment passed by the trial Court is perverse and arbitrary? iv) What order or decree? 19. Point No.(i): It is the case of the plaintiff that the suit schedule properties are the ancestral joint family - 13 - NC: 2025:KHC-D:1395-DB RFA No. 100559 of 2019 properties of the plaintiff and defendant Nos.1 to 5, 7 and 8. In the partition, the suit landed properties were fallen to the share of defendant Nos.1, 2, and 5 and they are cultivating the lands fallen to their respective share. It is contended that defendant No.2 has an independent business and with the help of the income derived from the said landed properties and his business, he had purchased the suit schedule properties at Mudalagi. It is contended that there was no legal necessity to sell the house properties in favour of defendant No.6, as defendant No.2 had no right to execute a registered sale deed in favour of defendant No.6 regarding the suit schedule house properties. The sale deed executed by defendant No.2 in favour of defendant No.6 is not binding on the plaintiff. 20. The plaintiff, to substantiate his case, examined himself as PW.1. He has reiterated the plaint averments in the examination-in-chief. In the course of cross- examination, it was elicited that, his family is residing in a house situated in Sy.No.520/1+3A. The said property is not included in the suit and further, the plaintiff has also - 14 - NC: 2025:KHC-D:1395-DB RFA No. 100559 of 2019 admitted that, Sy.No.521/1A, 520/1+3A, 520/4, 61/1B/2 were not brought for partition, and these properties are sold which were standing in the name of the plaintiff’s father, his mother and brother. The plaintiff has not included the other existing joint family properties. PW.1 has admitted in the course of cross-examination that the suit properties are standing in the name of his father, mother, and brother. Hence, the suit for partition and separate possession is not maintainable for non-joinder of necessary properties and further, PW.1 admitted in the course of cross-examination that his grandfather Maruti had two daughters by name Doddawwa and the Savakka. They are not made as parties to the suit. Hence, the suit is also not maintainable for non- joinder of necessary parties, as they are necessary parties. 21. The defendant has taken a contention that the plaintiff has not included the other existing joint family properties. Despite granting sufficient opportunities to the plaintiff, the plaintiff did not made any attempt to include the other existing joint family properties. Hence, the suit filed - 15 - NC: 2025:KHC-D:1395-DB RFA No. 100559 of 2019 by the plaintiff is not maintainable for non-inclusion of the other existing joint family properties. 22. In view of the above discussion, we hold that the suit filed by the plaintiff is not maintainable for non- inclusion of all other existing joint family properties. Hence, we answer point No.(i) in the negative. 23. Point No.(ii): It is the case of the plaintiff that the house properties are the joint family properties of the plaintiff and defendant Nos.1 to 5, 7, and 8. Defendant No.2 alone had no right to alienate the house properties. The sale deed executed by defendant No.2 in favour of defendant No.6 is not binding on the plaintiff’s share. 24. From the perusal of the registered sale deed Ex.D-11, it discloses that, the property was sold for family and legal necessity and further, defendant No.2 in the written statement has pleaded that he needed money for his family and legal necessity. The said fact has not been disputed by the plaintiff. This would show that, the conduct of the plaintiff in filing the present suit, is to extract money - 16 - NC: 2025:KHC-D:1395-DB RFA No. 100559 of 2019 from defendant No.6 who had purchased the property for valuable consideration. 25. From the perusal of Ex.D-2-registered sale deed, it discloses that the registered sale deed executed by defendant No.2 in favour of defendant No.6 is to clear the family debts. When defendant No.2 has sold the present house property in favour of defendant No.6 only to discharge the family and legal necessity, it is not open for the plaintiff to contend that, the said sale is not binding on the plaintiff. Admittedly, the sale deed was executed in 1999 and the suit is filed in 2013. The present suit has been filed by the plaintiff through defendant No.2. Further, from perusal of the written statement filed by the defendants, it discloses that, when the defendants were ready to effect a partition, there was no cause of action for the plaintiff to file the present suit. The present suit is filed only to deprive the right of defendant No.6 over the house properties. The suit is not one for general partition. The contention of the alienees is to the effect that, if the share of the plaintiff is to be worked out, other joint properties have to be included in the - 17 - NC: 2025:KHC-D:1395-DB RFA No. 100559 of 2019 schedule, then, at the partition, the share of defendant No.6 would have been worked out to give equitable relief to defendant No.6 as he had purchased the properties from defendant No.2. Even the plaintiff has not challenged the registered sale deed executed by defendant No.2 in favour of defendant No.6. Even, on these grounds also, the suit filed by the plaintiff is not maintainable, as the sale deed was executed by defendant No.2 for legal and family necessity, and is binding on the plaintiff. 26. Accordingly, we answer point No.(ii) in the affirmative. 27. Point No.(iii): The trial Court, considering the admissions of PW.1 that, the plaintiff has not included other existing joint family properties, and the sale deed executed by defendant No.2 in favour of defendant No.6 is for legal necessity, has rightly dismissed the suit. We do not find any error in the impugned judgment. We concur with the impugned judgment. Accordingly, we answer point No.(iii) in the negative. - 18 - NC: 2025:KHC-D:1395-DB RFA No. 100559 of 2019 Point No.(i) to (vi): In view of the answer to point Nos.(i) to (iii), we proceed to pass the following order: ORDER The appeal is dismissed. The judgment and decree passed by the trial Court is confirmed. However, liberty is reserved to the plaintiff to file a suit for partition and separate possession of the other house properties excluding the properties sold in favour of defendant No.6. No order as to the cost. ASHOK S. KINAGI) JUDGE (UMESH M ADIGA) JUDGE VB & Kmv from para 7 till end Ct-cmu