- 1 - HC-KAR NC: 2025:KHC:30531 RFA No. 846 of 2025 C/W RFA No. 2124 of 2017 RFA No. 2115 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR FIRST APPEAL NO. 846 OF 2025 (RES) C/W REGULAR FIRST APPEAL NO. 2124 OF 2017 (PAR/INJ) REGULAR FIRST APPEAL NO. 2115 OF 2018 (PAR) IN RFA No. 846/2025 BETWEEN: 1. SRI. YOGESH S/O LATE MUNIHANUMAIAH AGED ABOUT 53 YEARS RESIDING AT NO. 58/3 9TH CROSS, 8TH MAIN ROAD SHIVANAGAR, BENGALURU-560010. …APPELLANT (BY SRI. NARENDRA P.R., ADVOCATE FOR SRI. YOGENDRA .H, ADVOCATE) AND: 1. SRI. DEEPAK KUMAR S/O.SRI.SHIVAPRASAD.M AGED ABOUT 27 YEARS NO.58/3, 9TH CROSS 8TH MAIN, SHIVANAGAR RAJAJINAGAR, BENGALURU - 560010. 2. SRI. MADHUSH KUMAR.S S/O.SRI.SHIVAPRASAD.M AGED ABOUT 27 YEARS NO.58/3, 9TH CROSS 8TH MAIN, SHIVANAGAR Digitally signed by NAGARAJA B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30531 RFA No. 846 of 2025 C/W RFA No. 2124 of 2017 RFA No. 2115 of 2018 RAJAJINAGAR BENGALURU - 560 010 …RESPONDENTS (BY SMT. VEENA HEGDE, ADVOCATE FOR SRI. C.T. PARAMESHWARAPPA, ADVOCATE FOR C/R1 AND C/R2) THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 15.01.2025 PASSED IN OS NO.7779/2018 ON THE FILE OF XLI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE., PARTLY DECREEING THE SUIT FOR MANDATORY INJUNCTION. IN RFA NO. 2124/2017 BETWEEN: 1. SMT. NANJAMMA D/O LATE MUNIHANUMAIAH AGED ABOUT 50 YEARS RESIDING AT NO.58/3, 9TH CROSS 8TH MAIN ROAD, SHIVANAGAR BENGALURU-560 010. NOW RESIDING AT NO.27, 1ST MAIN 7TH CROSS, MANJUNATHANAGAR BENGALURU-10. 2. SMT. LAKSHMI DEVI D/O LATE MUNIHANUMAIAH AGED ABOUT 42 YEARS RESIDING AT NO.58/3, 9TH CROSS 8TH MAIN ROD, SHIVANAGAR BENGALURU-560 010. NOW RESIDENT OF NO.35, 5TH CROSS NEAR MANASA SCHOOL - 3 - HC-KAR NC: 2025:KHC:30531 RFA No. 846 of 2025 C/W RFA No. 2124 of 2017 RFA No. 2115 of 2018 PREETHINAGAR LAGGERE, BENGALURU-560058. ...APPELLANTS (BY SRI. BALARAJ .A.C, ADVOCATE) AND: 1. SRI. SHIVAPRASAD H/O LATE M. GANGAMMA AGED ABOUT 56 YEARS 2. SRI. DEEPAK S/O SHIVAPRASAD AGED ABOUT 22 YEARS 3. SRI. MADHUSA S/O SHIVAPRASAD AGED ABOUT 20 YEARS ALL ARE RESIDENT OF NO.58/3 9TH CROSS 8TH MAIN ROAD SHIVANAGAR BENGALURU-10. 4. SRI. YOGESH S/O LATE MUNIHANUMAIAH AGED ABOUT 44 YEARS RESIDING AT NO.58/3 9TH CROSS 8TH MAIN ROAD SHIVANAGAR BENGALURU-560 010. 5. SRI. RAJANNA S/O LATE MALLAIAH MAJOR RESIDENT OF KAMAKSHIPURA HESARAGHATTA HOBLI - 4 - HC-KAR NC: 2025:KHC:30531 RFA No. 846 of 2025 C/W RFA No. 2124 of 2017 RFA No. 2115 of 2018 BYATHA POST BENGALURU NORTH TALUK-560 088. DEFENDANT NO.2 IN OS 5927/2013 PASSED AWAY, R1 TO R3 IN THIS APPEAL ARE HER LRs ...RESPONDENTS (BY SMT. VEENA HEGDE, ADVOCATE FOR SRI. C.T. PARAMESHWARAPPA AND GOPI .N, ADVOCATES FOR C/R2 AND R3; R1 AND R4 ARE SERVED AND UNREPRESENTED) THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 02.01.2016 PASSED IN OS.NO.5927/2013 ON THE FILE OF THE XL ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR PARTITION, SEPARATE POSSESSION AND PERMANENT INJUNCTION. IN RFA NO. 2115/2018 BETWEEN: 1. SRI. YOGESH S/O LATE MUNIHANUMAIAH AGED ABOUT 40 YEARS RESIDING AT NO.58/3 9TH CROSS, 8TH MAIN ROAD SHIVANAGAR BENGALURU-560010. ...APPELLANT (BY SRI. SRINIVAS .A.R, ADVOCATE) AND: 1. SMT. DEVAMMA W/O LATE MUNIHANUMAIAH SINCE DEAD BY HER LRs LR IS ALREADY ON RECORD AS APPELLANT - 5 - HC-KAR NC: 2025:KHC:30531 RFA No. 846 of 2025 C/W RFA No. 2124 of 2017 RFA No. 2115 of 2018 2. 2(A) 2(B) 2(C) SMT. M.GANGAMMA D/O LATE MUNIHANUMAIAH SINCE DEAD BY LRs SHIVAPRASAD .M H/O GANGAMMA MAJOR SRI. DEEPAK KUMAR .S S/O SHIVAPRASAD AND GANGAMMA AGED ABOUT 22 YEARS SRI. MADHUSH KUMAR .S S/O SHIVAPRASAD .M ALL ARE RESIDING AT NO.58/3 9TH CROSS, 8TH MAIN SHIVANAGAR BENGALURU-560010 3. RAJANNA S/O LATE MALLAIAH KAMAKSHIPURA HESARAGHATTA HOBLI BYTHA POST BENGALURU NORTH. ...RESPONDENTS (BY SMT. VEENA HEGDE, ADVOCATE FOR SRI. PARAMESHWARA .C.T, ADVOCATE FOR C/R2(A & B) THIS RFA IS FILED UNDER ORDER XLI RULE 1 AND 2 R/W SEC.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 02.01.2016 PASSED IN O.S.NO.5927/2013 ON THE FILE OF THE XL ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. THESE APPEALS, COMING ON FOR DICTATING ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 6 - HC-KAR NC: 2025:KHC:30531 RFA No. 846 of 2025 C/W RFA No. 2124 of 2017 RFA No. 2115 of 2018 CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM ORAL JUDGMENT RFA.No.2115/2018 is filed by plaintiff No.1 in O.S.No.5927/2013 challenging the dismissal decree. RFA.2124/2017 is filed by plaintiffs 2 and 3 in O.S.No.5927/2013 challenging the dismissal decree. RFA.No.846/2025 is also filed by plaintiff No.1/Yogesh in O.S.No.5927/2013 challenging the decree for eviction passed in O.S.No.7779/2018. The eviction suit is filed by legal heirs of Gangamma, who is the sister of plaintiffs in O.S.No.5927/2013. 2. For the sake of convenience the parties are referred to as per their rank before the trial Court in O.S.No.5927/2013. 3. For easy reference, this Court deems it fit to cull out the family tree of plaintiffs and defendants in O.S.No.5927/2013 as well as the suit filed in O.S.7779/2018: - 7 - HC-KAR NC: 2025:KHC:30531 RFA No. 846 of 2025 C/W RFA No. 2124 of 2017 RFA No. 2115 of 2018 4. The plaintiffs who are the son and daughters of defendant No.1/Devamma filed the suit in O.S.No.5927/2013 seeking relief of partition and separate possession against their mother and sister. Plaintiffs in the partition suit specifically asserted that suit schedule 'A' and 'B' properties are self acquired properties of their father Munihanumaiah. Plaintiffs also specifically asserted that their father was working at Karnataka Electricity Board and defendant No.1, a home maker had no independent source to purchase schedule 'A' property. 5. Plaintiffs further pleaded that their father agreed to purchase schedule 'B' property from defendant MUNIHANUMAIAH _______________________|_______________________ | | GANGAMMA (LATE) DEVAMMA (D1) 1ST WIFE 2ND WIFE ______________________________________________|__ | | | | YOGESH NANJAMMA LAKSHMI DEVI GANGAMMA (P1) (P2) (P3) (D2) ___________________|__ | | DEEPAK KUMAR MADHUSH KUMAR (P1 IN O.S. 7779/2018) (P2 IN O.S. 7779/2018) - 8 - HC-KAR NC: 2025:KHC:30531 RFA No. 846 of 2025 C/W RFA No. 2124 of 2017 RFA No. 2115 of 2018 No.3 for a sum of Rs.11,00,000/- out of which a sum of Rs.6,00,000/- was paid as an advance amount and therefore, schedule 'B' property is also included in the partition suit. Plaintiffs have further contended that their father had fixed deposit of Rs.6,00,000/- in Canara Bank and possessed jewelry items which are referred in Schedule "C" property. 6. The present suit is filed alleging that their father expired on 1.2.2013 and defendant No.1/mother is not rendering the income derived from the joint family properties and the rents collected by their mother are also not accounted. Despite request, it is alleged that defendant No.1 has declined to share the rents generated from the estate left behind by their father Munihanumaiah and hence, the present suit. 7. Defendants 1 and 2, who are mother and sister of plaintiffs respectively, failed to contest the suit. - 9 - HC-KAR NC: 2025:KHC:30531 RFA No. 846 of 2025 C/W RFA No. 2124 of 2017 RFA No. 2115 of 2018 Defendant No.3, who is the owner of schedule 'B' property also did not contest the suit. 8. Plaintiffs to substantiate their claim let in oral and documentary evidence, produced the family tree, gift deed executed by defendant No.1 in favour of defendant No.2 in respect of schedule 'A' property and also produced sale deed obtained by defendant No.1 insofar as schedule 'B' property is concerned. 9. Trial Court referring to the evidence let in by the plaintiffs held that schedule 'A' property is purchased by defendant No.1 and therefore, the same has to be treated as self acquired property of defendant No.1. 10. Regarding schedule 'B' property, the trial Court was of the view that mere agreement to sell will not create a right to seek partition by the family of the agreement holder. Despite there being no contest, trial Court was of the view that plaintiffs have failed to substantiate their - 10 - HC-KAR NC: 2025:KHC:30531 RFA No. 846 of 2025 C/W RFA No. 2124 of 2017 RFA No. 2115 of 2018 legitimate right in the suit schedule properties. Consequently, the suit is dismissed. 11. The legal heirs of Gangamma, who was defendant No.2 in partition suit(O.S.No.5927/2013) after demise of their mother Gangamma have filed a suit for mandatory injunction in O.S.No.7779/2018 against Yogesh, who was arrayed as plaintiff No.1 in the partition suit (OS.5927/2013) seeking delivery of suit schedule property (schedule 'A' in partition suit). The legal heirs of defendant No.2/Gangamma (plaintiffs in O.S.No.7779/2018) contended that their mother Gangamma was the absolute owner of the suit schedule property (schedule 'A' in partition suit) and she acquired this property under registered gift deed dated 27.06.2013 and after demise of their mother Gangamma, their father has executed a release deed in their favour. The legal heirs of defendant No.2/Gangamma (plaintiffs in O.S.No.7779/2018) contended that plaintiff No.1/Yogesh(Defendant in O.S.No.7779/2018) is their - 11 - HC-KAR NC: 2025:KHC:30531 RFA No. 846 of 2025 C/W RFA No. 2124 of 2017 RFA No. 2115 of 2018 maternal uncle and at his request, eastern portion of the ground floor consisting two rooms, a hall, kitchen and bathroom was delivered to him by way of a permissible possession for a period of three months as plaintiff No.1/Yogesh(Defendant in O.S.No.7779/2018) had undertaken renovation of his property. The suit in O.S.No.7779/2018 is filed alleging that despite request, plaintiff No.1/Yogesh (Defendant in O.S.No.7779/2018) has failed to vacate and handover vacant possession. 12. The legal heirs of defendant No.2/ Gangamma(Plaintiffs in O.S.No.7779/2018) in support of their claim let in oral evidence and have produced in all 18 documents marked as Exs.P1 to 18. Plaintiff No.1/ Yogesh (Defendant in O.S.No.7779/2018) has let in oral evidence by examining himself as D.W.1 and one independent witness as D.W.2 and produced in all ten documents which are marked as Exs.D1 to 10. - 12 - HC-KAR NC: 2025:KHC:30531 RFA No. 846 of 2025 C/W RFA No. 2124 of 2017 RFA No. 2115 of 2018 13. Trial Court has answered Issue No.1 in the affirmative and held that legal heirs of defendant No.2/Gangamma (plaintiffs in O.S.No.7779/2018) has succeeded in proving that plaintiff No.1/Yogesh (Defendant in O.S.No.7779/2018) is in permissive possession over the suit schedule property and while answering Issue No.2 in the affirmative, the trial Court held that there shall be separate enquiry in regard to mesne profits under Order XX Rule 12 of CPC. Consequently, the suit is decreed and plaintiff No.1/Yogesh (Defendant in O.S.No.7779/2018) is directed to hand over vacant possession within four months from the date of the judgment. 14. Heard the learned counsel appearing for the plaintiffs and the counsel appearing for the legal heirs of defendant No.2/Gangamma (plaintiffs in O.S.7779/2018). 15. The following points would arise for consideration: - 13 - HC-KAR NC: 2025:KHC:30531 RFA No. 846 of 2025 C/W RFA No. 2124 of 2017 RFA No. 2115 of 2018 (i) Whether the finding of the trial Court that plaintiffs are not entitled for share in schedule A property as the same is the self acquired property of defendant No.1 who in turn has gifted it to defendant No.2 under registered gift deed evidenced at Ex.P2 in partition suit(5927/2013) is perverse and warrants interference? (ii) Whether the finding of the trial Court that schedule A property is self acquired property of defendant No.1 suffers from perversity? (iii) Whether the finding of the trial Court that plaintiff No.1/ Yogesh (defendant in O.S.7779/2018) is in permissive possession is perverse and warrants interference? Findings on Points (i) and (ii): 16. Though plaintiffs have asserted that schedule 'A' property is owned by their father Munihanumaiah and though the sale deed was obtained by plaintiffs' father in the name of defendant No.1, their father continued to be the absolute owner, the records however, reveal that suit - 14 - HC-KAR NC: 2025:KHC:30531 RFA No. 846 of 2025 C/W RFA No. 2124 of 2017 RFA No. 2115 of 2018 schedule 'A' property was in fact purchased by Gangamma, the first wife of Munihanumaiah under registered sale deed dated 18.2.1963. She died issueless and plaintiffs' father Munihanumaiah sold schedule 'A' property to one Jayamma under registered sale deed dated 13.8.1971. 17. The relevant portion of the recitals in the sale deed executed by plaintiffs' father in favour of Jayamma, which is marked as Ex.P3, would be relevant, and the same reads as under: "………… ನನ ಾಾ ೆಂಡ ಯೂ ಮತು ವನಹ ಾಮದ ೇ ಮು ನಂಜಪನವರ ಮಗಳ# ಸಹ ಆದ ೕಮ ಗಂಗಮ&ನೂ ವನಹ ಾಮದ ಮುಾಮಪ ವ'ರು( )ೕಟಪ ನವ+ಂದ ಕಯ-ೆ. ಪ/ೆದು 0ಾ+ೕಖು 18.02.1963 ರಲೂ3, 4ೆಂಗಳ#ರು ಉತರ 0ಾಲೂ3ಕು, ಸ6 +7ಾ89 ರವರ ಆ:ೕ;ನ<3 1=ೇ ಬುಕು. 2256=ೇ ?ಾಲೂ@ಂ 35-36=ೇ ಪ'ಟಗಳ<3 11818=ೇ ನಂಬAಾB +7ಾ89 ಆBರುವ ಕಯ ಪತದ ಮೂಲಕ ನನ ೆಂಡ ಗಂಗಮ&ನ ವಶ-ೆ. ಬಂದು ಆಾಾಯು ಆ-ೆಯ ಮತು ನನ ಾEFೕ=ಾನುಭವದ<3ದುH, ನನ ೆಂಡ ಗಂಗಮ& 0ಾ+ೕಖು 20.11.1966 ರಲೂ3 -ಾಲ?ಾದುದ+ಂದ, ಆ-ೆಯ -ಾಾ ನಂತರ ನನ ವಶ-ೆ. ಬಂದು, ನನ ಾEFೕ=ಾನುಭವದ<3ರುವ ನನ ಮತು ನನ ೆಂಡ ಯ ಸEPಾ7Qತ?ಾದ ವನಹ ಾಮದ ಸ?ೆQ - 15 - HC-KAR NC: 2025:KHC:30531 RFA No. 846 of 2025 C/W RFA No. 2124 of 2017 RFA No. 2115 of 2018 ನಂ.30/2=ೇ ನಂಬರು TೈV, ಈ -ೆಳಕಂಡ Xೆಡೂ@Y ೈಟು ಮತು ಇದರ<3ರುವ ಮಂಗಳ#ರು ೆಂ[ನ ಮ=ೆ………" (emphasis supplied) 18. The underlined portion of the record clearly establishes that the suit schedule property originally belonged to Gangamma, who was the first wife of Munihanumaiah. Significantly, while executing the registered sale deed dated 13.08.1971 in favour of one Jayamma, the plaintiffs’ father, Munihanumaiah, expressly acknowledged that the property in question was the self- acquired property of his first wife, Gangamma. This categorical admission in the sale deed lends credence to the claim regarding the original ownership of the property. 19. Plaintiffs assert that their father Munihanumaiah again repurchased the schedule property from Jayamma on 25.8.1972 in his second wife's name namely Devamma/defendant No.1. This document is marked at Ex.P3. On closer examination of the recitals in the sale deed, it is clearly evident that first defendant/Devamma - 16 - HC-KAR NC: 2025:KHC:30531 RFA No. 846 of 2025 C/W RFA No. 2124 of 2017 RFA No. 2115 of 2018 has purchased this property from Jayamma. On closer examination of the sale deeds executed by Munihanumaiah in favour of Jayamma on 13.8.1971 and the sale deed obtained by Devamma on 25.08.1972, there is absolutely no evidence indicating that plaintiffs' father invested money and purchased the property in the name of defendant No.1/Devamma. 20. During the life time of Munihanumaiah, he never asserted title over the suit schedule 'A' property. This Court and Hon'ble Apex Court in numerous judgments have held that a property acquired by a Hindu female is presumed to be her self acquired property. Even if property was purchased by Munihanumaiah in the name of defendant No.1/Devamma, the purchase is covered under Section 14(1) of Hindu Succession Act and therefore, defendant No.1/Devamma, who had absolute right and title was competent to convey her property to her daughter/defendant No.2. - 17 - HC-KAR NC: 2025:KHC:30531 RFA No. 846 of 2025 C/W RFA No. 2124 of 2017 RFA No. 2115 of 2018 21. Plaintiffs therefore, despite defendants were placed exparte, have failed to substantiate their right and interest in schedule 'A' property. Therefore, plaintiffs are not entitled to seek partition in schedule 'A' property. Accordingly, points (i) and (ii) are answered in the negative. Finding on point No.(iii) 22. The legal heirs of defendant No.2/Gangamma (Plaintiffs in O.S.7779/2018) have succeeded in establishing that defendant No.1/Devamma acquired suit property from her independent income and she has conveyed the suit schedule property to the their mother namely defendant No.2/Gangamma and after her demise, plaintiffs in the above said suit have acquired right and title. The legal heirs of defendant No.2/Gangamma (Plaintiffs in O.S.7779/2018) while cross-examining plaintiff No.1/Yogesh have succeeded in extracting vital admissions regarding he having undertaken renovation of his residential house just abutting to the suit schedule - 18 - HC-KAR NC: 2025:KHC:30531 RFA No. 846 of 2025 C/W RFA No. 2124 of 2017 RFA No. 2115 of 2018 property. Therefore, Defendants (plaintiffs in O.S.No.7779/2018) assertion that Plaintiff No. 1/Yogesh (Defendant in O.S.No.7779/2018) was permitted to occupy a portion of the suit schedule property for a period of three months appears to be probable and the said contention is not successfully rebutted by plaintiff no. 1/Yogesh (Defendant in O.S.No.7779/2018) having established their title and in view of the finding recorded by this Court while answering points 1 and 2, this Court opines that Defendants (plaintiffs in O.S.7779/2018) are entitled to seek possession. Accordingly, point No.(iii) is answered in the negative. 23. In view of the findings recorded by this Court, all the appeals are liable to be dismissed. Accordingly, this Court proceeds to pass the following: ORDER (i) The appeals are dismissed. (ii) Plaintiff No.1/Yogesh (defendant in O.S.No.7779/2018) is granted One month's - 19 - HC-KAR NC: 2025:KHC:30531 RFA No. 846 of 2025 C/W RFA No. 2124 of 2017 RFA No. 2115 of 2018 time from the date of receipt of order copy to hand over vacant possession of suit property. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE ALB List No.: 1 Sl No.: 40