- 1 - HC-KAR NC: 2025:KHC-D:9063 RSA No. 100134 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 22ND DAY OF JULY 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.100134 OF 2025 (PAR/POS) BETWEEN: YALLAPPA S/O. RANGAPPA BHUTALI, AGE: 63 YEARS, OCC: SERVICE, R/O: KITTALI, TALUK: BADAMI, DIST: BAGALKOT – 587 115. …APPELLANT (BY SRI. M. B. RADDI, ADVOCATE) AND: 1. SMT. KALASAWA W/O. BASAVARAJ KORI, (SINCE DECEASED BY HER LEGAL HEIRS) 1A. HULIGEVVA W/O. NAGAPPA BENIKINAL, AGE: 50 YEARS, OCC: HOUSEHOLD WORK, R/O: LOKKADAKKATII, TALUK: RON DIST: GADAG – 582 211. 1B. SHAILAWWA W/O. BHIMAPPA BEERANNAVAR, AGE: 49 YEARS, OCC: HOUSEHOLD WORK, R/O: KITTALI, TALUK: BADAMI, DIST: BAGALKOT – 587 155. 1C. SHOBHA D/O. BASAVARAJ KORI, AGE: 34 YEARS, OCC: HOUSEHOLD WROK, R/O: KITTALI, TALUK: BADAMI DIST: BAGALKOT – 587 155. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 06.11.2024 PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND JMFC, BADAMI IN RA NO.4 OF 2020 AND THE JUDGMENT AND DECREE DATED 19.12.2019 PASSED BY THE COURT OF ADDL. CIVIL JUDGE AND JMFC, BADAMI IN OS NO.270 OF 2015, BY ALLOWING THIS REGULAR SECOND APPEAL WITH COSTS, IN THE INTEREST OF JUSTICE. THIS APPEAL, COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:9063 RSA No. 100134 of 2025 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This appeal is by the defendant aggrieved by the judgment and decree dated 19.12.2019 passed in OS No.270/2015 on the file of Additional Civil Judge and JMFC Badami (Trial Court) by which the suit of the plaintiff/respondent herein for partition and separate possession is decreed allotting half share to the plaintiff in the suit schedule properties, which is confirmed by the judgment and decree dated 06.11.2024 passed in RA No.4/2020 on the file of Senior Civil Judge and JMFC Badami (First Appellate Court). 2. Subject matter of the suit are the following properties: Description of the suit schedule ‘B’ properties; Sl. No. R.S.No. Area A-G Situated at; 1. 54/8 03-23 Kittali village Taluk Badami 2. 111/2A 03-08 Kittali village Taluk Badami The house properties bearing 1. House property bearing VPC.No.94 Kittali village Taluk Badami 2. House property bearing VPC.No.137 House property bearing VPC.No.94 - 3 - HC-KAR NC: 2025:KHC-D:9063 RSA No. 100134 of 2025 3. Case of the plaintiff is that the aforesaid properties belonged to one Rangappa Ramappa Bhutali who passed away on 04.10.1966 leaving him behind his wife Smt.Mallavva and a daughter and a son namely plaintiff and the defendant in the suit. Smt.Mallavva passed away subsequently. As such, only the plaintiff and defendant became entitled for suit schedule properties in equal shares in terms of the provisions of Hindu Succession Act, 1956. That the request of the plaintiff for partition and separate possession of her entitlement in the suit schedule properties was denied by the defendant constraining her to file suit for partition. 4. Defendant appeared before the Trial Court and filed written statement. The defendant admitted the relationship and also the ownership of Rangappa Ramappa Bhutali, their father being the owner of the suit schedule properties. Date of death of said Rangappa Ramappa Bhutali being 04.10.1966 is also admitted. Subsequent death of their mother is also admitted. However, - 4 - HC-KAR NC: 2025:KHC-D:9063 RSA No. 100134 of 2025 defendant contended that after the demise of their father, defendant became exclusive owner of the suit schedule properties and the plaintiff has no share, right, title or entitlement in the suit schedule properties. That the revenue entries are standing in the name of the defendant, which have not been challenged by the plaintiff. The defendant had availed loans on agricultural lands by mortgaging the suit schedule properties, which are not objected to by the plaintiff. The plaintiff was never in the joint possession of the suit schedule properties. Hence, she has lost her right over the same. 5. Based on the pleadings, Trial Court framed the following issues: “ISSUES: 1. Whether the plaintiff proves that suit properties are joint family properties of plaintiff and defendant? 2. Whether the plaintiff proves she is entitled for ½ share in the suit properties? 3. Whether the defendant proves that he is absolute owner of suit properties as contended in his written statement? - 5 - HC-KAR NC: 2025:KHC-D:9063 RSA No. 100134 of 2025 4. Whether the plaintiff is entitled for the reliefs sought in the prayer? 5. What order or decree?” 6. Plaintiff examined herself as PW.1 and exhibited 5 documents marked as Ex.P.1 to P.5. Defendant examined himself as DW.1 and did not mark any documents. On appreciation of evidence, Trial Court answered Issue Nos.1, 2 and 4 in the affirmative, Issue No.3 in the negative. Consequently, decreed the suit granting half share to the plaintiff in the suit schedule properties. Being aggrieved, the defendant preferred regular appeal in RA No.4/2020. The First Appellate Court framed the following points for its consideration: “POINTS: 1. Whether the trail court is justified in holding that plaintiff and defendant are the members of Hindu Undivided Joint Family; suit schedule properties are the joint family properties; both are in joint possession and enjoyment of the same and both are having undivided interest therein? 2. Whether the trial court is justified in holding that it is not required to calculate the Court fee under section 35(1) of K.S.F and S.V.Act? 3. Whether the trail court is justified in holding that suit is well within the period of limitation? - 6 - HC-KAR NC: 2025:KHC-D:9063 RSA No. 100134 of 2025 4. Whether the trail court is justified in decreeing the suit by granting the decree of declaration, partition and separate possession? 5. Whether the judgment passed by the trial court is oppose to law and needs interference? 6. What order or decree?” 7. On re-appreciation of evidence, the First Appellate Court answered Point Nos.1 to 4 in the affirmative, Point No.5 in the negative and consequently dismissed the appeal confirming the judgment decree passed by the Trial Court. As against which the present appeal. 8. Learned counsel for the appellant/defendant reiterating the grounds urged in the memorandum of appeal submits that after the demise of father Rangappa in the year 1966, it was the defendant who was managing the affairs of the properties. That he had expended huge amount of money for the purpose of conducting the marriage of the plaintiff, besides he had also given gold ornaments to the plaintiff. On receipt of said gold - 7 - HC-KAR NC: 2025:KHC-D:9063 RSA No. 100134 of 2025 ornaments, the plaintiff has given up her claim over the suit properties. 9. He further submits that though the father of the plaintiff and defendant passed away in the year 1966, the suit is filed in the year 2015, which is hopelessly barred by limitation. Thus, he submits that the Trial Court and First Appellate Court without adverting to these aspects of the matter, entertained the suit filed by the plaintiff after lapse of 5 decades and have granted the relief of partition, which is impermissible. He submits that this aspect of the matter gives rise to substantial question of law warranting interference at the hands of this Court. 10. Heard. Perused the records. 11. It is not in dispute that the suit schedule properties originally belonged to Rangappa Ramappa Bhutali, who was the father of the plaintiff and defendant. That he passed away on 04.10.1966. Though the father passed away on 04.10.1966, there has been no partition of the suit properties and that the plaintiff and the - 8 - HC-KAR NC: 2025:KHC-D:9063 RSA No. 100134 of 2025 defendant were in joint possession and enjoyment of the same. As such, she was entitled for the share in terms of Section 6 of the Hindu Succession Act. 12. On the other hand, contention of the defendant is that upon the demise of their father on 04.10.1966, he became the exclusive owner in possession of the suit properties and the plaintiff had no share, right and interest in the same besides, it is his contention that he had expended huge amounts of money for her wedding. As such, the plaintiff was not entitled for any share. 13. There is no dispute that even after the demise of the propositus Rangappa Ramappa Bhutali in the year 1966, there has been no partition of the suit properties. In other words, the suit properties have remained undivided till filing of the suit by the respondent/plaintiff. Though a feeble plea is raised by the defendant of he incurring the expenditure towards marriage of the plaintiff and giving gold to her resulting in she giving up her claim, no piece of evidence is brought on record in this regard. In any case, - 9 - HC-KAR NC: 2025:KHC-D:9063 RSA No. 100134 of 2025 relinquishments of such nature needs to be in the manner known to law i.e. by executing any registered instrument. In the absence of defendant producing any legally acceptable cogent material evidence regarding the plaintiff having given up her share over the properties as contended, the submission cannot be accepted. 14. The other ground is with regard to the limitation. As long as the properties remain undivided, and there was no case of ouster, the question of suit for partition being barred by limitation would not arise. 15. The Trial Court and the First Appellate Court have thus rightly taken into these factual and legal aspects of the matter while decreeing the suit granting half share to the plaintiff and remaining to the defendant. No substantial question of law would therefore arise for consideration. 16. Accordingly, the appeal is dismissed. - 10 - HC-KAR NC: 2025:KHC-D:9063 RSA No. 100134 of 2025 17. Pending applications, if any, do not survive for consideration. Sd/- (M.G.S. KAMAL) JUDGE SH/CT-ASC List No.: 1 Sl No.: 24