1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH REGULAR SECOND APPEAL NO.177/2021 (PAR) BETWEEN: 1 . SMT. RATHNAMMA W/O KARIYAIAH AGED ABOUT 50 YEARS R/AT BASAVANAPURA HAMLET OF THATTEKERE KODIHALLI HOBLI KANAKAPURA TALUK RAMANAGARA DISTRICT-562119. … APPELLANT (BY SRI. K.N.NITISH, ADVOCATE FOR SRI. K.V.NARASIMHAN, ADVOCATE ) AND: H. GURUDEV SINCE DEAD BY HIS LRS. 1. KUMARI YASHASWINI D/O LATE H. GURUDEV MAJOR, R/AT NO.5 RAMACHANDRA ROAD KEMPEGOWDA BUILDING YELACHENAHALLI J.P. NAGARA POST BENGALURU-570 031. R 2 2 . SMT. BHAGYAVATHI W/O M. BALACHANDRA MAJOR, R/AT NO.102 TERRACE GARDEN APARTMENTS ITTAMADU, KATHIRGUPPE BENGALURU-560 085. 3 . SMT. SARSWATHI MURTHY W/O NARASIMHA MURTHY MAJOR, R/AT NO.2/2 7TH ‘A’ MAIN TATA SILK FARM BENGALURU-560 028. … RESPONDENTS (BY SRI. K.S.NAYAK, ADVOCATE FOR R1 AND R2; SRI. AKKI MANJUNATH GOWDA K., ADVOCATE FOR C/R3) THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 04.09.2020 PASSED IN R.A.NO.5169/2018 ON THE FILE OF THE II ADDL. DISTRICT AND SESSIONS JUDGE, RAMANAGARA TO SIT AT KANAKAPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 20.08.2018 PASSED IN O.S.NO.23/2014 (OLD OS.NO.432/2006) ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, KANAKAPURA. THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 21.07.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: 3 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV JUDGMENT This second appeal is filed against concurrent finding in O.S.No.23/2014 and also R.A.No.5169/2018 granting the relief of 1/3rd share in the suit schedule properties and confirming the same in the appeal and praying this Court to set aside both the findings and dismiss the suit and grant such other relief. 2. The factual matrix of case of the plaintiff/respondent No.3 in this second appeal before the Trial Court is that original propositus by name Puteeregowda, son of Kalleeregowda had no male issues and he had a daughter by name Kempamma @ Kempojamma, wife of Halagegowda. The said Puteeregowda had executed a gift deed dated 19.08.1953 in favour of his own daughter Kempamma @ Kempojamma in respect of the suit schedule properties i.e., the properties in Sy.No.41 measuring 5 acres 3 guntas and 3 acres 18 guntas in Sy.No.4/1 of Balagondanahalli Village, Kodihalli Hobli, Kanakapura Taluk. The khatha concerning the said properties had been mutated in favour of donee i.e., Kempamma. The plaintiff and defendant 4 Nos.1 and 2 are her children. After the demise of Kemapamma @ Kempojamma, plaintiff along with defendant Nos.1 and 2 have succeeded to the suit schedule properties. Hence, claimed 1/3rd share in the suit schedule properties. It is contented that sale deed dated 22.04.1993 has been executed by defendant No.1 in favour of defendant No.3 and it does not bind her. It is also contended that defendant No.3 and the said sale deed does not bind her and defendant No.3 does not derive any right, title or interest over suit schedule properties. The said sale deed as such, is null and void and sought for the relief of partition. 3. The defendant No.1 though served, did not file any written statement. The defendant No.2 filed her written statement and she also sought for decreeing the suit and supported the case of the plaintiff. The defendant No.3, who is the purchaser from defendant No.1 filed her written statement contending that suit schedule properties belongs to defendant No.1-Gurudev and he being the absolute owner of the suit schedule properties had sold the same in her favour under a registered sale deed dated 12.04.1993. It is also contended that 5 she is a bonafide purchaser of the suit schedule properties and the suit is barred by limitation, sought for dismissal of the suit. 4. The Trial Court having considered both oral and documentary evidence placed on record, has decreed the suit in coming to the conclusion that original gift deed of the year 1953 is not challenged and not declared as an invalid document and unless the same is questioned and declared as null and void document, question of executing any other document does not arise and the same will not create any right and title will not flow in favour of defendant No.1. Hence, granted the relief of 1/3rd share. 5. Being aggrieved by the said judgment of the Trial Court, an appeal is filed before the First Appellate Court in R.A. No.5169/2018 and the First Appellate Court also having re- appreciated the same dismissed the appeal confirming the judgment of the Trial court. Hence the present second appeal is filed before this Court. 6. The main contention of learned counsel for the appellant before this Court is that respondent No.3 i.e., plaintiff 6 is not entitled for any share and both the Courts have committed an error in granting the relief. The gift deed is compulsorily in the attestable document as per Section 123 of Transfer of Property Act and plaintiff had not taken any steps to examine the alleged attesting witness to the alleged gift deed and the same could not have been considered that the same has been proved and without appreciating the material, both the Courts committed an error. It is contended that the very alleged gift is void and there is no evidence to show that Kempamma @ Kempojamma had accepted the said gift and revenue entries have not been mutated as per the alleged gift. The possession of the suit properties at no point of time was with her and also contend that Kempamma @ Kempojamma was the only daughter of Putteeregowda and if that is the case, there was no occasion for Putteeregowda to execute a gift deed in favour of Kempamma @ Kempojamma. It is contented that the recitals made in the sale deed at Ex.D4 have not been appreciated by the Court below and Ex.D4 is the sale deed dated 07.05.1969 which was executed by Doddamadegowda in favour of Putteeregowda and it is recited in the sale deed that a suit in 7 O.S.No.577/1953 had been filed by Kalleeregowda and Kempamma on the file of Munsiff Court, Ramanagara and Kalleeregowda is the father of Putteeregowda and Kempamma, wife of Huchiregowda is his sister (Huchiregowda) sister. It is recited that there was a compromise decree and as per the compromise decree, the properties are divided among them. 7. It is contended that Kalleeregowda sold the portion of land allotted to his share with limited interest in favour of Huchiregowda under the registered sale deed dated 04.09.1958 and said Huchiregowda sold the same under the registered sale deed dated 08.08.1963 in favour of Doddamadegowda and said Doddamadegowda in turn executed sale deed in favour of Putteeregowda. As such, Putteeregowda become the absolute owner of the suit schedule properties and Kempamma, who had been allotted the western quarter sold the said property to Puttasiddegowda under the registered sale deed at Ex.D3. As such, the compromise has been entered into and decree has been drawn accordingly and the same has been acted upon. Kempamma @ Kampojamma is also a party to the said suit. Said 8 Kempamma @ Kempojamma as per the version of the plaintiff herself died prior to Putteeregowda. However, none of these aspects have been appreciated by the Courts below. It is further contended that Putteeregowda being the absolute owner of the suit properties has executed a Will in favour of defendant No.1 and said Will is at Ex.D5 dated 10.06.1980 and also examined D.W.3 to prove the Will. The counsel also vehemently contend that both the Courts have committed an error in considering the material and record. The counsel would vehemently contend that the very gift deed was not acted upon and sale deed at Ex.D3 was not challenged and so also, Ex.D4-sale deed executed by Doddamadegowda in favour of Putteeregowda was not challenged. The donee did not acted upon in terms of gift deed i.e., Ex.P3. The counsel would vehemently contend that when the Will was executed, defendant No.1 become the absolute owner and only reason assigned by the Trial Court is that Will was not proved. The witness says that the same was handwritten, but the document is typed document. The counsel also would vehemently contend that Ex.D14 is very clear that plaintiff and defendant No.2 having received the amount of 9 Rs.50,000/- executed the document of relinquishment deed. It is also contended that defendant No.2 is a consenting witness to both documents and though defendant No.2 filed written statement, but not entered witness box. The evidence available on the record is very clear that it is a collusive suit and was having knowledge about the sale and issue is framed that the same is an ancestral property. But the fact is that when the sale was made, limitation starts from the date of sale. 8. The learned counsel for the appellant, in support of his argument, mainly relied upon the judgment of this Court in METROPOLI OVERSEAS LIMITED VS. H.S. DEEKSHIT AND ORS in CRP NO.307/2020 (IO) decided on 14.09.2021 reported in MANU/KA/4213/2021 and brought to notice of this Court discussion made in the judgment and point of consideration raised in the appeal in paragraph No.13 i.e., whether registration of a sale deed in respect of alleged joint family property would amount to constructive notice to all members of the joint family and the same is answered that the registration of the document will be deemed as constructive 10 notice. The counsel also brought to notice of this Court while answering point No.3, this Court also taken note of whether in a suit for partition and declaration that certain sale deeds are not binding would be the main relief be a declaration or partition and the same is answered holding that in a suit for partition and declaration that certain sale deeds are not binding, without a declaration that the sale deeds are not binding a suit for partition would not be maintainable and as such period of limitation for that relief of declaration would have to be taken into consideration. Hence, the counsel would contend that the very suit is barred by limitation. 9. The counsel also relied upon judgment of the Apex Court in SMT. UMA DEVI AND ORS. VS. SRI ANAND KUMAR AND ORS. in SPECIAL LEAVE PETITION (CIVIL) NO.2137/2025 dated 02.04.2025 and brought to notice of this Court discussion made in paragraph No.12, in the case at hand, partition took place way back in the year 1968, which is evident from the revenue entries. The suit is filed in the year 2023 i.e., after a period of 55 years and further many of the family 11 member had executed registered sale deeds in the year 1978 and these sale deeds have been attached, and on perusal, it is observed that these were in fact registered sale deeds. The counsel also brought to notice of this Court, in the said judgment, discussion was made in respect of judgment in SURAJ LAMP INDUSTRIES PVT. LTD. VS. STATE OF HARYANA & ANR. reported in (2012) 1 SCC 656, wherein it is observed that registration of a document gives publicity and public exposure to documents, thereby preventing forgeries and frauds in regard to transactions and execution of documents. 10. The counsel also relied upon the judgment of the Apex Court in KALE AND ORS VS. DEPUTY DIRECTOR OF CONSOLIDATION AND ORS. in CIVIL APPEAL NO.37/1968 decided on 21.01.1976 reported in MANU/SC/0529/1976, wherein an observation is made that when there is compromise by Naib Tahsildar, mutation affirmed by decision by settlement officer, matter stood settled, High Court erred in entertaining and appeal when matter already settled, held that order of Settlement Officer restored and revenue authorities are directed 12 to attest mutation in names of appellants and respondent Nos.4 and 5 in accordance with family arrangement. 11. The counsel referring these judgments would contend that material already placed on record clearly disclose that equitable principle such as estoppel, family settlements are not mere technical rules of governance, they have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice and further held that, if a person having full knowledge of his right as a possible revisioner enters into a transaction which settles his claim as well as the claim of the opponents at the relevant time, he cannot be permitted to go back on that agreement when reversion actually falls open. 12. Per contra, learned counsel for respondent Nos.1 and 2 and learned counsel for caveator-respondent No.3 would vehemently contend that suit was filed in the year 2006 and also specific case of the plaintiff before the Trial Court is that she is the legal heir of Kempamma, who got the property by way of gift in the year 1953 and the same was acted upon and the said gift 13 deed was not cancelled or declared as invalid in any Court of law. A specific plea was taken that, if any such documents comes into existence after the said gift deed, title will not flow to any person and first of all, defendant No.1 was not having any exclusive right to sell the property. The very contention that gift deed was not acted upon was erroneous and any sale deed executed by defendant No.1 in favour of defendant No.3 is also not binding and prayer is also that the same is not binding. Both the Courts have taken note of the documents produced by both the plaintiff as well as defendants and also contend that the First Appellate Court also re-appreciated the same and mere production of other document will not create any right and if any other document comes into existence without annulling the gift to him, question of flow of title does not arise. 13. In reply to this argument of learned counsel for respondent Nos.1 and 2 and learned counsel for caveator- respondent No.3, learned counsel for appellant would contend that both the Courts committed an error in coming to the conclusion that Ex.D14 is not a registered document and taken 14 the advantage of the said document was not registered and the very approach is erroneous. 14. Having considered the grounds which have been urged by the appellant and also learned counsel for respondent Nos.1 and 2 and learned counsel for caveator-respondent No.3, this Court has to analyze the material available on record considering the substantial questions of law which have been framed by this Court at the time of admitting the appeal which reads as hereunder: “1. In background of family arrangement dated 5/3/1989 to which 3rd respondent (plaintiff) is also an executant, whether both Courts were justified in decreeing suit of plaintiff? 2. In background of sale deeds at Ex:D3 dated 17/04/56 and Ex: D4 dated 17/5/69 and sales that had taken place from time to time, whether both Courts were justified in decreeing suit of plaintiff? 3. When sale deeds in favour of appellant (3rd defendant) at Ex:D1 and D2 were executed on 22/4/1993 by delivered possession, whether 15 both Courts erred in ignoring that suit filed on 12/9/2006 was barred by time?” 15. Having considered all these substantial questions of law, this second appeal revolves upon family arrangement dated 05.03.1989 and also earlier sale deeds Ex.D3 dated 17.04.1956 and Ex.D4 dated 17.05.1969, now this Court has to examine the material on record. The specific case of the plaintiff before the Trial Court is that originally property belongs to Putteeregowda, who is the son of Kalleeregowda and the fact that Putteeregowda had sole daughter Kempamma @ Kempajamma is not in dispute. The counsel for the appellant also not disputes the document of Ex.P3, gift deed which was executed by Putteeregowda in favour of his daughter Kempamma @ Kempajamma in respect of land in Survey No.41 measuring 5 acres, 3 guntas and also land in Survey No.44/1 measuring 3 acres, 18 guntas, including one Mangalore tiled house and another house property. But, counsel would contend that a suit was filed in O.S.No.577/1953 by Kalleeregowda and Kempamma, daughter of Kalleeregowda against Putteeregowda and Kempamma @ Kempajamma, daughter of Putteeregowda and contend that the said suit came 16 to be compromised i.e., between father, daughter and Putteeregowda. In the said compromise, eastern portion of land in Sy.Nos.41 and 44 was allotted to the share of Putteeregowda, western most 1/4th portion to Kempamma, daughter of Kalleeregowda and the remaining 1/4th share to Kalleeregowda and his wife Maadamma. In order to prove this factum of compromise, nothing is placed on record before the Trial Court and nothing is pleaded before the Trial Court also and for the first time, this contention was urged in this second appeal. The defendants produced the documents of Exs.D5 and D7 i.e., Will, Encumbrance Certificate and M.R. Extract and with regard to the compromise is concerned, nothing is placed on record, but only relies upon the recitals made in the sale deed and the same is without any pleading. 16. It is also important to note that according to learned counsel for the appellant, compromise was entered on 05.01.1954 and nothing is placed on record that in the said compromise, anything is stated about the gift deed dated 19.08.1953 and the same is not declared as a void document, no 17 such pleading before the Trial Court or before this Court. But, the fact is that there was a gift deed dated 19.08.1953 is not disputed. The only contention urged by learned counsel for the appellant is that the same was not acted upon and certified copy of gift deed is also marked as Ex.P3. In order to prove the factum of contention that the same was not acted upon as contended by learned counsel for the appellant, nothing is placed on record and only submission that donee did not act upon the said gift deed. 17. No doubt, counsel mainly contends that there was a sale in terms of Ex.D3 and Ex.D4 and Putteeregowda had purchased the same and he executed a Will in favour of his son on 10.06.1980. It is also important to note that one of the witness in respect of the Will was also examined, but witness deposes that Will was handwritten, but the same was typed copy. Hence, the evidence of witness, who supported the defendant No.1 in terms of Ex.D5 was not accepted. The other contention of learned counsel for the appellant is that plaintiff and defendant No.2 was also party to the document of Ex.D14 18 i.e., Panchayath parikath and ultimately, the said document is not registered document and it is also the contention that in terms of document, an amount of Rs.50,000/- was given and in order to prove the said factum, nothing is placed on record. Learned counsel would contend that defendant No.2 is also consenting witness to the said document and also it is the contention that defendant No.2 though filed written statement, but not entered into the witness box. The Court has to take note of both factual aspects and question of law. 18. The main contention of learned counsel for the appellant is that when there was a document of family arrangement dated 05.03.1989 to which respondent No.3 is also an executant, both courts committed an error and the fact that the document was not a registered document is not in dispute and though claims that received an amount of Rs.50,000/- and relinquished their right, there is no registered document relinquishing their right and unregistered document cannot be relied upon and document must be admissible under the evidence. The other contention that there was a sale deed at 19 Ex.D3 dated 17.04.1956 and also Ex.D4 dated 07.05.1969 for selling off property and re-purchasing of the property. But, the fact is that when there was already gift deed in the year 1953 in respect of the very same property, unless the same is declared as void document or cancelled by any competent Court of law and if any such documents are executed in terms of Ex.D3 and Ex.D4, the same will not convey any title and the same is a defective title and nothing is placed on record that the gift deed was cancelled or declared as invalid document by any Court of law. Hence, mere execution of document of Ex.D3 and Ex.D4 will not convey any title to anybody else, unless the document of Ex.P3 is cancelled by competent Court of law and even if any such compromise is also entered between the parties without declaring the said document as null and void and the same is also cancelled, there is no pleading with regard to that effect, but same is pleaded before this Court and no document is also placed before the Court for having compromised the matter. Even, if any such compromise was also entered between the parties and when that document was registered, that too in the year 1953, no declaration to the effect that the same is cancelled 20 in accordance with law or declared as not valid by any competent Court of law. 19. Now with regard to the third substantial question of law is concerned, Exs.D1 and D2 were executed on 22.04.1993 and whether both the Courts erred in ignoring that suit filed on 12.09.2006 was barred by time and Trial Court also taken note of these aspects and suit is also filed for the relief of partition and sought for the relief of separate possession claiming 1/3rd share in the suit schedule properties by metes and bounds. The main prayer is also that very sale deed is null and void and not binding on them and no doubt, sale deed was of the year 22.04.1993 and suit was filed in 2006 and when the relief is sought for partition and the sale deed is not binding, the Trial Court also framed an additional issue in view of the contention taken by defendant No.3/appellant in paragraph No.6 of the written statement and additional issue was also considered by the Trial Court in paragraph No.13 and an observation is made that as per the provisions of Indian Limitation Act, nowhere finds limitation for seeking partition and separate possession in the 21 co-parcenary property and the prayer is also sale deed is not binding. 20. No doubt, learned counsel for the appellant relied upon judgment of this Court in METROPOLI OVERSEAS LIMITED VS. H.S. DEEKSHIT AND ORS. and the same is with regard to whether registration of sale deed in respect of alleged joint family property would amount to constructive notice to all members of the joint family and so also in the suit for partition certain sale deeds are not binding would be the main relief be a declaration or partition and this Court answered the same as a constructive notice to all members of joint family and notice of such instrument will be deemed from the date of registration of such instrument. The counsel also relied upon the judgment of the Apex Court in the case of SMT. UMA DEVI AND ORS. VS. SRI ANAND KUMAR AND ORS., a discussion was made in paragraph No.12 that partition took place way back in the year 1968 and parties have acted upon in terms of the said partition and executed registered sale in the year 1978 and suit was filed in the year 2023 and in the case on hand, there was no such 22 partition and factual aspects of each case also should be taken note of while applying the principles laid down in the judgments. 21. It is settled law that while seeking the relief of partition, there is no limitation. No doubt, learned counsel relies upon another judgment of this Court in the case of KALE AND ORS VS. DEPUTY DIRECTOR OF CONSOLIDATION AND ORS., and brought to notice of this Court with regard to equitable principles such as estoppel and family settlement. But, in this case, there is no such family settlement and though relies upon document of Ex.D14, the same is not a registered document and no relinquishment under the provisions of law and the relinquishment of right must be under a registered document, since the same is executed in respect of a immovable property and when there is no document of relinquishment as recognized under law, the same cannot be considered as a family settlement and these judgments will not come to the aid of the appellant as contended by learned counsel for the appellant. 23 22. 23 22. Having considered both oral and documentary evidence available on the record, it is not in dispute that originally property belongs to Putteeregowda and it is also not in dispute that he had a sole daughter Kempamma @ Kempajamma and a gift deed was executed during his lifetime in favour of his daughter under Ex.P3 and the same was not annulled, cancelled or declared as void by any competent Court of law and if any subsequent document comes into existence without annulling or declaring the same as void by Putteeregowda as contended by the appellant and as on the date of executing such document, he was not having any right to execute the sale deed in favour of Doddamadegowda or in turn while purchasing the property and the very sale deed of Putteeregowda does not create any right in favour of the purchaser, since he was not having any right and he has already executed a gift deed in the year 1953 itself and there is no declaration that the said gift deed was invalid and the fact that Kempamma @ Kempajamma also died intestate is not in dispute. 24 23. It is also important to note that plaintiff and defendant Nos.1 and 2 are the legal heirs of Kempamma @ Kempajamma is not in dispute and both the Courts have also taken note of Section 15 of Hindu Succession Act. When a female dies without executing any testamentary document during her lifetime, the legal heirs i.e., plaintiff and defendant Nos.1 and 2, who are the daughters and son of Kempamma succeed in respect of her property. If any document is executed by one of the legal heir under the law recognized, then he will not get any share, since the plaintiff has not executed any document conveying title and no doubt, defendant No.1 had executed a sale deed in favour of defendant No.3 i.e., appellant, but in respect of the share of defendant No.1, they can plead equity before the final decree proceedings. But, plaintiff is entitled for 1/3rd share as allotted by the Trial Court and also the First Appellate Court. Hence, I do not find any error on the part of both the Courts, since both the Courts have taken note of the fact that gift deed was executed in the year 1953 itself. No doubt, though the defendants relied upon documents of Exs.D3, D4 and D5 and the same will not convey any title to the 25 subsequent purchaser, unless the document of Exs.D3 and D4 are annulled, cancelled or declared as void document by any competent Court of law and the same was taken note of by Trial Court as well as the First Appellate Court. The First Appellate Court also while considering the material on record, formulated the point whether the Trial Court wrongly appreciated both oral and documentary evidence placed on record and also failed to consider regarding absolute ownership of the appellant and whether the sale deed dated 22.04.1993 creates absolute right in favour of the appellant and considering the same, the Trial Court granted 1/3rd share and the First Appellate Court also in detail having considered the material on record, taken note of Articles 58 and 59 of Limitation Act and also taken note of the fact that said limitation does not apply when the relief is sought for by the plaintiff for partition and separate possession and also that the sale deed is not binding and the First Appellate Court also in paragraph No.58 taken note of that there was registered gift deed of the year 1953 executed by father of Kempamma @ Kempajamma and when she dies, allocation of share would be under Section 15(1) of Hindu Succession Act 1956 and the same 26 applies and plaintiff has right to equal share to inherit in this suit schedule properties and the same is observed in paragraph No.58 of the judgment. When such reasoned order has been passed by both the Courts applying factual aspects as well as question of law, I do not find any error committed by both the Courts in granting 1/3rd share in favour of respondent. Hence, the substantial questions of law framed by this Court are answered as ‘negative’ that both the Courts have not committed any error in appreciating both oral and documentary evidence available on record and the sale deed executed in favour of the defendant No.3 by defendant No.1 not takes away the right of the plaintiff as the plaintiff succeeded to the property under Section 15(1) of Hindu Succession Act. 24. In view of the discussion made above, I pass the following: ORDER The regular second appeal is dismissed. Sd/- (H.P. SANDESH) JUDGE ST