- 1 - NC: 2025:KHC-D:5872-DB RFA No. 100588 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 2ND DAY OF APRIL 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO. 100588 OF 2022 (PAR/POS) BETWEEN: 1. SHIVALEELA W/O. BASAPPA UNDI, AGE: 47 YEARS, OCC: AGRICULTURE, R/O. HALETEGUR, P.O. HOSATEGUR-580011, TAL AND DIST: DHARWAD. 2. IRAMMA W/O. SANNATAMMAPPA PATTED, AGE: 32 YEARS, OCC: AGRICULTURE, R/O. GUDADUR, P.O. SANGOLLI-591102, TQ: BAILHONGAL, DIST: BELAGAVI. 3. IRAPPA S/O. BASAPPA UNDI, AGE: 29 YEARS, OCC: GOVT. SERVICE, R/O. HALETEGUR, P.O. HOSATEGUR-580011, TAL. AND DIST: DHARWAD. 4. SHIVANAND S/O. BASAPPA UNDI, AGE: 27 YEARS, OCC: AGRICULTURE, R/O. HALETEGUR, MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA Date: 2025.04.17 15:08:20 +0530 - 2 - NC: 2025:KHC-D:5872-DB RFA No. 100588 of 2022 P.O. HOSATEGUR-580011, TAL. AND DIST: DHARWAD. …APPELLANTS (BY SMT.KAVITA S.JADHAV, ADVOCATE FOR SRI. ARUN L.NEELOPANT, ADVOCATE) AND: 1. SMT. PARAWWA W/O. NINGAPPA PUJAR, AGE: 57 YEARS, OCC: HOUSEHOLD WORK, R/O. HALE TEGUR VILLAGE-591235, TQ. AND DIST: DHARWAD. 2. SMT. MAHADEVI W/O. PUNDALIKAPPA BELLAD @ UNDI, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O. HALE TEGUR VILLAGE-591235, TQ. AND DIST: DHARWAD. …RESPONDENTS (BY SRI. S.G.NANDOOR, ADVOCATE FOR SRI.S.B.DODDAGOUDAR, ADVOCATE FOR R1 AND C/R2) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 22.07.2022 PASSED IN O.S.NO.123/2020 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, DHARWAD, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL COMING ON FOR FURTHER 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 - 3 - NC: 2025:KHC-D:5872-DB RFA No. 100588 of 2022 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) The captioned appeal is filed by the legal heirs of original defendant – Basappa who are assailing the preliminary decree drawn in O.S.No.123/2020, wherein plaintiffs’ suit is decreed thereby granting 1/3rd share each in the suit schedule properties. The said judgment and decree is under challenge. 2. For the sake of convenience, the parties are referred to as per their ranking before the trial court. 3. Before we proceed to examine the rival contentions, we deem it appropriate to take cognizance of the family tree, which is as under: Irappa S/o. Fakkirappa Undi [Dead] Gangavva W/o. Irappa Undi [Dead] Parawwa Mahadevi Basappa (Plaintiff No.1) (Plaintiff No.2) (Defendant) [Dead] [Shivaleela] [Iramma] [Irappa] [Shivanand] (Applt No.1) (Applnt No.2) (Aplnt No.3) (Aplnt No.4) - 4 - NC: 2025:KHC-D:5872-DB RFA No. 100588 of 2022 4. The plaintiffs, who are sisters, filed a suit seeking partition and separate possession of the suit schedule properties, contending that the properties are joint family ancestral assets belonging to both the plaintiffs and the defendant. They asserted that they were in joint possession and enjoyment of the suit schedule properties and that no partition had been effected. The plaintiffs alleged that the defendant had mismanaged the properties, prompting them to demand their rightful share. Upon the defendant's refusal to effect partition, the plaintiffs instituted a suit in O.S. No. 317/2012 before the III Additional Civil Judge and JMFC, Dharwad, seeking partition and separate possession. 5. Upon receipt of summons in O.S. No.317/2012, the defendant appeared and contested the suit. When the matter was posted for the plaintiffs’ evidence, the defendant expressed willingness to amicably settle the dispute. After discussions, village elders assured the plaintiffs that the defendant would allocate their respective - 5 - NC: 2025:KHC-D:5872-DB RFA No. 100588 of 2022 shares after constructing a new house on the Schedule 'A' property. Relying on this assurance and acting on the advice of the elders, the plaintiffs refrained from prosecuting the suit. Consequently, the suit was dismissed for default on 22.07.2022. 6. The present suit has been filed alleging that although the defendant commenced construction, he failed to fulfill his assurance and kept postponing the allotment of shares to the plaintiffs on one pretext or another. Despite efforts by the village elders to persuade the defendant to effect partition, he did not respond positively to their requests and advice. As a result, the plaintiffs were compelled to file the present suit. 7. The sole defendant, Basappa, upon receipt of summons, filed a written statement denying all allegations made in the plaint. He contended that the matter had been settled through the intervention of village elders, and that the plaintiffs had each received 5 tolas of gold and Rs.50,000/- in cash in full satisfaction of their claims over - 6 - NC: 2025:KHC-D:5872-DB RFA No. 100588 of 2022 the suit schedule properties. He asserted that this was the reason why the plaintiffs did not prosecute the earlier suit in O.S. No. 317/2012. Although a joint compromise petition was to be filed, the plaintiffs allegedly failed to cooperate, resulting in the dismissal of the suit for default. On these grounds, the defendant has sought dismissal of the present suit. 8. Plaintiffs and defendant to substantiate their respective claims led-in oral and documentary evidence. The Trial Court having examined the oral and documentary evidence answered Issue No.2 in the negative and held that the defendant has failed to prove that the plaintiffs have received 5 tolas of gold and Rs.50,000/- cash each and given up their claim in the suit schedule properties. Having answered Issue No.2 in the negative, Trial Court proceeded to decree the suit. 9. The learned counsel appearing for the legal heirs of the sole defendant, reiterating the grounds urged in the appeal memo, submitted that the judgment and - 7 - NC: 2025:KHC-D:5872-DB RFA No. 100588 of 2022 decree passed by the Trial Court ought to be set aside. She contended that the sole defendant was in poor health and, therefore, was unable to examine the village elders who had allegedly mediated and resolved the dispute. On this basis, she requested that the matter be remitted to the Trial Court for fresh consideration. She further argued that the plaintiffs, having accepted 5 tolas of gold and Rs.50,000/- each as part of the alleged settlement, have suppressed the said fact and have now instituted the present suit. As such, she vehemently contended that the present suit is not maintainable. 10. In response, the learned counsel appearing for the plaintiffs drew the attention of this Court to the cross- examination of DW1, highlighting that the defendant has, since 2012, consistently denied the plaintiffs their rightful share in the suit schedule properties. He submitted that in the earlier suit, the defendant had assured the plaintiffs of a fair partition, which led them to refrain from pursuing the matter. Referring to the cross-examination, he pointed - 8 - NC: 2025:KHC-D:5872-DB RFA No. 100588 of 2022 out that the plaintiffs successfully established that they were advised not to prosecute O.S. No. 317/2012 based on such assurances. He further argued that the defendant failed to produce credible evidence to substantiate the alleged settlement before the village elders. It was also brought to the notice of this Court that the present legal heirs of the deceased defendant are now seeking remand on the ground that two village elders, who allegedly took part in the settlement talks, were not examined. However, counsel pointed out that these two individuals are the brother-in-laws of the original defendant, Basappa, and therefore are interested witnesses lacking independent credibility. He contended that remanding the matter at this stage would serve no meaningful purpose and would only benefit the present defendants unfairly. 11. Heard the learned counsel for the plaintiffs and learned counsel for the defendant. We have also examined the pleadings and oral and documentary evidence. We have also given our anxious consideration to the order - 9 - NC: 2025:KHC-D:5872-DB RFA No. 100588 of 2022 sheet of the earlier suit filed in O.S.No.317/2012. The following point would arise for our consideration: Whether the preliminary decree drawn by the Trial Court thereby granting 1/3rd share to plaintiffs 1 and 2 each suffers from perversity and warrants interference at the hands of this Court? Finding on point: 12. The plaintiffs in the present case are sisters, and the suit has been instituted against their brother, Basappa. Notably, the defendant’s own admission that, pursuant to the intervention of village elders, he paid each of the plaintiffs 5 tolas of gold and a sum of Rs.50,000/- in cash, lends credence to the plaintiffs’ claim that the suit schedule properties are joint family ancestral properties. A closer examination of the earlier proceedings in O.S. No.317/2012, the earlier partition suit, reveals that the plaintiffs had, in fact, led evidence during the trial. However, the defendant failed to cross-examine the plaintiffs at that stage. - 10 - NC: 2025:KHC-D:5872-DB RFA No. 100588 of 2022 13. The records further disclose that the defendant subsequently filed an application seeking leave to cross- examine the plaintiffs in O.S. No. 317/2012. This application was duly allowed, and the defendant was granted permission to cross-examine the plaintiff who had been examined as PW1. Instead of availing this opportunity, the defendant, under the pretext of settling the dispute, appears to have influenced the plaintiffs into withdrawing from active prosecution of the suit. As per the defendant’s own version, the matter was taken up by village elders for resolution, an assertion that is not seriously contested by the plaintiffs. 14. Additionally, the records indicate that the earlier suit had reached an advanced stage and was, in fact, posted for judgment, as evident from the order sheet dated 26.02.2014. It was at this critical juncture that the defendant filed an application under Section 151 of the Code of Civil Procedure, accompanied by a written statement, seeking to recall the plaintiff for the purpose of - 11 - NC: 2025:KHC-D:5872-DB RFA No. 100588 of 2022 cross-examination. This application was allowed by the Court through an order dated 13.06.2014, thereby providing the defendant with yet another opportunity to cross-examine the plaintiff, which he ultimately failed to utilize. 15. The defendant has taken the stand that the plaintiffs chose not to prosecute the earlier suit as they had already entered into a settlement with him, pursuant to which they allegedly accepted 5 tolas of gold and Rs.50,000/- each in full satisfaction of their claims. He further contends that the plaintiffs had agreed to file a joint compromise petition before the Court in the earlier proceedings (O.S. No. 317/2012). However, according to the defendant, the plaintiffs failed to appear before the Court to formalize the compromise, despite such an understanding. As a result, the Trial Court was constrained to dismiss the suit for default on 27.04.2017. 16. In light of these material aspects and procedural developments, this Court is now required to - 12 - NC: 2025:KHC-D:5872-DB RFA No. 100588 of 2022 undertake a meticulous and critical examination of the defendant’s testimony, particularly his cross-examination, wherein he was examined as DW1. The contents of his cross-examination are pivotal to assessing the credibility of the alleged settlement and the veracity of the defendant’s claim that the plaintiffs had relinquished their share in the suit schedule properties. Accordingly, the relevant portions of the cross-examination of DW1, which hold significant evidentiary value, are extracted and reproduced hereinbelow for detailed scrutiny. “zÁªÁzÁ¹Û «¹ÛçÃtð 3 JPÀgÉ EgÀÄvÀÛzÉ. zÁªÁzÁ¹ÛAiÀÄ°è MAzÀÄ ªÀÄ£É PÀÆqÁ EgÀÄvÀÛzÉ. zÁªÁzÁ¹ÛUÀ¼ÀÄ ¤ªÀÄä vÀAzÉAiÀÄ D¹ÛUÀ¼ÀÄ JAzÀgÉ ¸ÁQëzÁgÀgÀÄ CªÀÅ £ÀªÀÄä zÉÆqÀØ¥Àà£À D¹Û EzÀÄÝ CªÀgÀÄ £ÀªÀÄUÉ PÉÆnÖgÀÄvÁÛgÉ JAzÀÄ ºÉüÀÄvÁÛgÉ. £ÀªÀÄä zÉÆqÀØ¥Àà £ÀªÀÄUÉ D¹Û ©lÄÖPÉÆlÖ §UÉÎ zÁR¯É ºÁdgÀÄ¥Àr¸À®Ä AiÀiÁªÀÅzÉà vÉÆAzÀgÉ E®è. AiÀiÁªÀ E¹éAiÀÄ°è D¹ÛUÀ¼À£ÀÄß ©lÄÖPÉÆnÖgÀÄvÁÛgÉ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è. ¸ÀzÀj zÁR¯É G¥À£ÉÆAzÀuÁ¢üPÁjUÀ¼À PÀZÉÃjAiÀÄ°è £ÉÆAzÀtÂAiÀiÁVgÀÄvÀÛzÉ. zÁªÁzÁ¹Û £ÀªÀÄä »jAiÀÄjAzÀ §AzÀ D¹Û JAzÀgÉ ¸ÀjAiÀÄ®è. zÁªÁzÁ¹ÛUÀ¼À£ÀÄß £ÀªÀÄä zÉÆqÀØ¥Àà Rjâ »r¢gÀÄvÁÛgÉ. ¸ÀzÀj Rjâ ¥ÀvÀæªÀ£ÀÄß £ÁåAiÀiÁ®AiÀÄzÀ°è ºÁdgÀÄ¥Àr¸À®Ä AiÀiÁªÀÅzÉà vÉÆAzÀgɬÄgÀĪÀÅ¢®è. £ÀªÀÄä vÀAzÉUÉ £ÁªÀÅ ªÀÄÆgÀÄ d£À ªÀÄPÀ̼ÀÄ JAzÀgÉ ¸Àj. ªÁ¢UÀ¼ÀÄ ªÀÄvÀÄÛ £Á£ÀÄ £ÀªÀÄä vÀAzÉAiÀÄ ªÀÄPÀ̼ÀÄ JAzÀgÉ ¸Àj. F »AzÉ ªÁ¢AiÀÄgÀÄ ªÁnß zÁªÁ ºÁQzÀ §VÎ £À£ÀUÉ w½¢gÀÄvÀÛzÉ. D ¸ÀªÀÄAiÀÄzÀ°è »jAiÀÄgÀÄ £À£ÀUÉ ªÀÄvÀÄÛ ªÁ¢AiÀÄjUÉ §Ä¢ÝªÀiÁvÀÄ ºÉýgÀÄvÁÛgÉ JAzÀgÉ ¸Àj. »jAiÀÄgÀ ªÀÄÄAzÉ £Á£ÀÄ ªÁ¢AiÀÄjUÉ CªÀgÀ »¸ÉìUÉ §gÀĪÀAvÀ D¹ÛAiÀÄ£ÀÄß PÉÆlÄÖvÉÛÃ£É JAzÀÄ ªÀiÁvÀÄ PÉÆnÖzÉÝ JAzÀgÉ ¸Àj. ¸ÁQëzÁgÀgÀÄ ªÀÄÄAzÀĪÀgÉzÀÄ £Á£ÀÄ FUÁUÀ¯Éà CªÀjUÉ - 13 - NC: 2025:KHC-D:5872-DB RFA No. 100588 of 2022 PÉÆnÖzÉÝÃ£É JAzÀÄ ºÉüÀÄvÁÛgÉ. »jAiÀÄgÀ CªÀjUÉ £ÁåAiÀiÁ®AiÀÄPÉÌ ºÉÆÃUÀ¨ÉÃr £ÁªÀÅ ¤ªÀÄUÉ »¸Éì PÉÆr¸ÀÄvÉÛÃªÉ JAzÀÄ ºÉýzÀÝgÀÄ JAzÀgÉ ¸Àj. £Á£ÀÄ ªÁ¢AiÀÄjUÉ CªÀgÀ »¸Éì PÉÆlÖ §UÉÎ £ÁåAiÀiÁ®AiÀÄPÉÌ zÁR¯É ºÁdgÀÄ¥Àr¹®è.” 17. Upon a thorough examination of the cross- examination of the defendant, who was examined as DW1, several significant and telling admissions emerge. The extracted portions of his testimony clearly demonstrate that it was at the instance of the defendant himself that the plaintiffs refrained from prosecuting the earlier suit in O.S. No. 317/2012. A categorical admission is elicited during cross-examination, wherein the defendant admits that the plaintiffs were dissuaded from continuing the earlier proceedings based on the advice of village elders, who had assured them that their legitimate share in the ancestral properties would be allotted. Further, the defendant unequivocally admitted that no documentary evidence was produced in the earlier suit to establish the existence of any formal settlement between him and his sisters, the plaintiffs herein. These admissions not only highlight the influence exerted by the defendant but also - 14 - NC: 2025:KHC-D:5872-DB RFA No. 100588 of 2022 expose the absence of any credible proof of settlement in the earlier suit. 18. The cross-examination of DW1 is crucial and, in fact, clinches the entire controversy between the parties. It reveals a pattern wherein the defendant, being the brother and the person in control and possession of the suit schedule properties, wielded undue influence over the plaintiffs. He succeeded in frustrating their legitimate claims and caused them to run from pillar to post for over a decade. This conduct of the defendant must be assessed not only in the context of the current proceedings but also in light of his actions during the pendency of the earlier suit. 19. Despite the submissions made by the learned counsel for the legal heirs of the deceased defendant, who argued that a fair opportunity ought to be given to the defendant to examine two witnesses who allegedly participated in the settlement talks, this Court finds such contentions to be wholly misconceived. As rightly pointed - 15 - NC: 2025:KHC-D:5872-DB RFA No. 100588 of 2022 out by the learned counsel for the plaintiffs, the two witnesses sought to be examined by the defendants are closely related to the deceased defendant being the full brothers of the defendant’s wife and are thus interested witnesses. Given the nature of their relationship, their testimony would lack independent credibility and would not materially assist the Court in resolving the dispute. 20. Moreover, even assuming that the proposed witnesses were examined, the absence of any contemporaneous documentation evidencing the alleged settlement renders their testimony ineffective. It was incumbent upon the defendant, had there truly been a bona fide settlement while O.S. No. 317/2012 was pending, to produce such evidence before the Court at that time. The failure to do so, coupled with the mere assertion in the written statement that the plaintiffs had received 5 tolas of gold and Rs.50,000/- each, is wholly insufficient. Such a bald and self-serving statement, unsupported by any documentary or independent - 16 - NC: 2025:KHC-D:5872-DB RFA No. 100588 of 2022 evidence, cannot be accepted as proof of settlement. Consequently, we are not inclined to accept the defendant’s version that the matter was settled and that the plaintiffs had relinquished their claims in consideration of cash and gold. 21. This Court is also compelled to make an observation of general concern: the practice of recording informal settlements before village elders, especially when a comprehensive civil suit is pending before a competent court, must be strongly discouraged. The judicial forum exists precisely to resolve such disputes in accordance with law, ensuring transparency, fairness, and legal finality. When parties bypass this process and resort to informal mechanisms without formalizing them before the Court, it leads to ambiguity, manipulation, and further litigation. 22. In the present case, the plight of the plaintiffs- Hindu women seeking partition of ancestral property cannot be overlooked. Despite initiating the legal process - 17 - NC: 2025:KHC-D:5872-DB RFA No. 100588 of 2022 in 2012, the plaintiffs have been compelled to endure an unnecessarily protracted and painful legal battle. This delay is attributable largely to the conduct of the original defendant, who manipulated the process and postponed the rightful allotment of their shares. Even though a preliminary decree has been passed in 2022, the plaintiffs are yet to enjoy the fruits of that decree, and must now undertake the additional burden of final decree proceedings, which are often complex and move at a sluggish pace. Such delays only serve to defeat the spirit and purpose of the 2005 amendment to Section 6 of the Hindu Succession Act, which was intended to grant equal rights to daughters in coparcenary property and end gender discrimination. 23. In light of all the foregoing circumstances, this Court is of the considered view that the theory of settlement as narrated by the defendant in his written statement is fabricated and lacks credibility. It is evident that the so-called settlement was neither genuine nor - 18 - NC: 2025:KHC-D:5872-DB RFA No. 100588 of 2022 substantiated by any credible or independent evidence. The defendant, during his lifetime, failed to produce a single document supporting the alleged transfer of gold and cash to the plaintiffs. The fact that his legal heirs now seek to rely on the oral testimony of two closely related and evidently interested witnesses only reinforces the conclusion that the defence is contrived. Accordingly, this Court finds that the alleged settlement is a concocted story, and the point formulated for determination is answered in the negative. 24. For the forgoing reasons, we proceed to pass the following: ORDER i) The appeal is dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE CLK_Ct:vh List No.: 1 Sl No.: 25