- 1 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100221 OF 2021 (PAR/POS) BETWEEN: SMT. VEERAMMA W/O PUTTAPPA HOSAMANI AGED ABOUT 62 YEARS, OCC. AGRICULTURE, R/AT: MANNUR, TQ. AND DIST. HAVERI-581110. …APPELLANT (BY SMT. AMRUTA M. MAINALLI, ADVOCATE FOR SRI. MRUTYUNJAY TATA BANGI, ADVOCATE) AND: 1. SMT. PANCHAMMA @ PANCHAVVA W/O. NINGAPPA BALLARY AGED ABOUT 83 YEARS, OCC. AGRICULTURE, R/AT: C/O CHANNAPPA, A/F. BAALINGAPPA BALLARY, R/AT HIREBANNIMATTI, TQ. HOOVIN-HADAGALI, DIST. BALLARY-583219. 2. SRI. RAJASHEKARAPPA S/O NINGAPPA BALLARY AGED ABOUT 57 YEARS, OCC. AGRICULTURE, R/AT: HIREBANNIMATTI, TQ. HOOVIN-HADAGALI, DIST. BALLARY-583219. Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA Date: 2025.03.01 12:10:06 +0530 - 2 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 3. SMT. SHIVAMMA W/O SHIVAPPA ANNIGERI AGED ABOUT 55 YEARS, OCC. AGRICULTURE, R/AT: HIREBANNIMATTI, TQ. HOOVIN-HADAGALI, DIST. BALLARY 583219. 4. SMT. RATHNAMMA W/O ISHAPPA MILMURI AGED ABOUT 51 YEARS, OCC. AGRICULTURE, R/AT C/O CHANNAPPA, A/F BAALINGAPPA BALLARRY, R/AT HIREBANNIMATTI, TQ. HOOVIN-HADAGALI, DIST. BALLARY 583219. 5. SMT. PARAMMA @ PARAVVA W/O GANGAPPA BHAVIKATTI AGED ABOUT 42 YEARS, OCC. AGRICULTURE, R/AT: C/O TIPPANNA NAVALAGUND, AT KOPPAL CROSS, KOPPAL ROAD, MUNDARAGI, TQ. MUNDARAGI, DIST. GADAG 582118. 6. SMT. KAMALAVVA D/O NINGAPPA BALLARY AGED ABOUT 78 YEARS, OCC. HOUSEHOLD R/O. KOLAR, TQ. AND DIST. HAVERI 581110. 7. SMT. NEELAVVA D/O NINGAPPA BALLARY AGED ABOUT 76 YEARS, OCC. HOUSEHOLD, R/AT. KOLAR, TQ. AND DIST. HAVERI 581110. - 3 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 8. SRI. CHANNAPPA A/F BASALINGAPPA BALLARY AGED ABOUT 55 YEARS, OCC. AGRICULTURE, R/AT HIREBANNIMATTI, TQ. HOOVIN-HADAGALI, DIST. BALLARY 583219. 9. THE BLOCK EDUCATION OFFICER (B.E.O) HOOVINHADAGALI, TQ. HOOVINAHADAGALI, DIST. BALLARY 583219. 10. THE DEPUTY COMMISSIONER BALLARY, DIST. BALLARY 583219 …RESPONDENTS (BY SRI. M.M. PATIL, ADVOCATE FOR R2, R3, R6 AND R7; SRI. P.N. HATTI, HCGP FOR R9 AND R10; SERVICE OF NOTICE TO R1 IS HELD SUFFICIENT V/O DATED 02.06.2022; NOTICE TO R4, R5 AND R8 SERVED) THIS RFA FILED UNDER SEC. 96 OF CPC., PRAYING TO, SET ASIDE THE JUDGMENT AND DECREE DATED 30.09.2021 PASSED IN O.S.NO.28/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, HAVERI, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE 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:2952-DB RFA No. 100221 of 2021 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) This is the plaintiff’s appeal against judgment and decree dated 30.09.2021 passed in OS No.28/2014 on the file of the Prl. Senior Civil Judge, Haveri. 2. For convenience, the parties are referred to, according to their ranking before the trial Court. 3. The plaintiff has filed the suit for partition and separate possession of her share in the suit schedule properties. The learned trial Judge by the impugned judgment and decree, dismissed the suit, same is challenged in the present appeal. 4. Brief facts of the case of both the parties are that: It is the case of the plaintiff that one Ningappa Channappa Ballary was the propositus of the family. His wife was Smt.Panchavva @ Panchamma (defendant No.1). - 5 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 From their wedlock they have got six children i.e. plaintiff and defendants No.2 to 5. It is further contended that the suit schedule properties are ancestral and joint family properties. Propositus Ningappa died intestate during the year 1992. Defendant No.2 without knowledge and consent of plaintiff, got changed his name in the revenue records. He alienated suit properties at Sl. Nos. A12 to A14 to the Government. The said alienation is not binding on the rights of the plaintiff. Looking to the said developments, plaintiff demanded for partition and separate possession of her 1/5th share in the suit properties. Defendants went on postponing to effect partition and separate possession of her share in the suit properties. Hence, she was forced to file the suit for partition. 5. The defendants No.1, 3 to 5 filed a common written statement contending that suit is bad for non- joinder of necessary parties and not including all the joint family properties. They admitted the genealogy of the - 6 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 family. They contended that Sy.No.72/A/2 was given to the share of plaintiff and it is not included in the suit. It is also contended that the parents of plaintiff have performed her marriage by spending huge amount by giving gold and silver ornaments and other articles. Therefore, she is not entitled for share in the suit schedule properties. 6. Defendant further contended that the suit is barred by time. Plaintiff married during the year 1982. Thereafter she has been residing in her husband’s house at Mannur village in Haveri District. She is not at all in possession and enjoyment of the suit properties. Hence, she cannot file suit for partition. With these reasons prayed to dismiss the suit. 7. Defendant No.2 filed the written statement contending that suit is not maintainable. Plaintiff has not included all the alleged joint family properties in the present suit. She has deliberately not added one of the properties given to her in the present suit. Therefore, suit is bad for non-inclusion of all the joint family properties. - 7 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 He has also contended that suit is bad for non-joinder of necessary parties. 8. Defendant No.2 further contends that descriptions of the properties stated in the plaint are incorrect and genealogy produced by the plaintiff is incomplete. He has denied other averments in the plaint. He further contends that one of the son of deceased Ningappa i.e. defendant No.8 was adopted by his uncle Basalingappa, still he has been made as party in the present suit. It is further contended that the suit properties at SL No. 2, 8, 10, 13 and 14 are self acquired properties of defendant No.2 and said properties were granted in the name of defendant No.2 and he had paid premium to the Government in respect of the said properties and they are not joint family properties, plaintiff and other defendants have no right over the said properties. 9. It is further contended by the defendant No.2 that plaintiff got married to one Puttappa Hosamani during - 8 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 the year 1982. At the time of marriage valuable gold and silver ornaments were given to her as a part of her share in the properties belonging to the family. Even she has mortgaged one of the properties belonging to the joint family; she has suppressed all these facts and filed the suit, therefore suit is not maintainable. 10. Defendants No.6 & 7 filed common written statement. Defendant No.8 filed written statement. Defendant No.6 to 8 also contended in the same lines as of defendants No.1 to 5. They also contended that plaintiff has no right to claim partition in the suit properties and prayed to dismiss the suit. 11. Defendants No.8 and 9 have filed detailed written statement, wherein it is contended that property at Sl.Nos.12 to 14 were gifted by defendant No.2 as per the wish of his parents and from the date of gift, defendants No.8 and 9 are in possession of the said properties. Plaintiff had no right over the said properties. They also - 9 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 contended as stated in the written statement of defendant No.2; and prayed to dismiss the suit. 12. From the rival contentions of the parties, trial court has framed the following issues and additional issue: ISSUES 1. Whether the plaintiff proves that she and defendants are members and constitute a Hindu Joint Family? 2. Whether the plaintiff proves that the suit A and B Schedule properties are ancestral and joint family properties? 3. Whether the plaintiff is entitled for partition and separate possession of her 1/5th share in the suit properties? 4. Whether the defendants prove that suit is bad for miss-joinder of property? 5. Whether the defendants prove that suit is non-joinder of necessary properties? 6. Whether the defendants prove that suit is bad for non-joinder of necessary parties as per genealogy shown in written statement? 7. What order or decree? - 10 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 Additional Issue: 1. Whether the plaintiffs prove that gift deed dated 20.09.2007 executed by the defendant No.2 in favour of defendant No.9 is not binding the plaintiffs? 13. Plaintiff to prove her case examined herself as PW.1 and got marked documents Ex.P1 to P27. Defendant No.2 was examined as DW.1 and defendants got marked Ex.D1 to D41. 14. The trial court after hearing both the parties and appreciating the evidence available on record answered issue Nos.1 and 2 partly in the affirmative, issue No.3 partly in the negative, issue No.4 in the affirmative, issue Nos.5 and 6 and additional issue No.1 in the negative and dismissed the suit. 15. We have heard Smt.Amruta M. Mainalli, advocate for Sri.Mrutyunjay Tata Bangi, advocate for the appellant, Sri. M.M.Patil, advocate for respondent Nos.2, 3, 6 and 7 and Sri.P.N.Hatti, HCGP for respondents No.9 and 10. - 11 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 16. The learned counsel for the appellant would submit that the trial Court has not at all assigned any reasons while answering issue Nos.1 to 6 and additional issue No.1. Some of the suit properties are joint family properties which is not seriously disputed. Defendant No.2 is said to have gifted some of the properties to defendants No.8 and 9. He was not an absolute owner of the said properties. Moreover, according to the contention of appellant, said properties are inam properties of the family of plaintiff and defendants No. 1 to 7. Merely said lands were granted in the name of defendant No.2 is not a reason to believe that he became absolute owner of the said properties. They are also joint family properties. The trial court has not considered the same. Since, defendant No.2 was not an absolute owner of the properties gifted to defendants No.8 and 9 and hence gifting the same without consent of other members of the family is not permissible and the said gift is void. These facts were not at all considered by the trial court. - 12 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 17. The learned counsel for the appellant further submits that appellant has filed IA No.1/2022 under Order 41 Rule 27 of CPC seeking permission to produce additional evidence. Said application is supported by the affidavit of the appellant, assigning valid reasons to allow the said application. Since, the matter needs to be reheard by the trial Court, appellant be permitted to produce additional evidence before the trial Court. Trial Court on reconsidering the pleadings with additional evidence to be produced by the appellant shall pass appropriate order and decide real dispute between parties and prayed to allow the appeal and remand the suit to trial court. 18. The learned counsel for the appellant relied on Section 256 of Hindu law by Mulla, wherein it is noted as under: “Section 256. Gift of undivided interest.-According to Mitakshara law as applied in all the states, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether, there is no estoppel or other kind of personal bar which - 13 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of other coparceners.” The trial court has not considered the said question of law while passing the impugned judgment. 19. It is further submitted by the learned counsel for appellants that when the trial Court answered issue Nos.1 and 2 partly in the affirmative, at- least it should have partly decreed the suit, to that extent. It shows non- application of mind by the trial court. In view of these reasons, prayed to set aside the impugned judgment and allow the appeal or in the alternative remand the matter to the trial court to reconsider the facts and evidence on record and pass appropriate orders. 20. The learned counsel for the respondents No.2 and 3 submits that the trial court has considered all the relevant issues properly and rightly dismissed the suit. There are no reasons to interfere in the said findings. He further submits that in the written statement, defendant - 14 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 No.2 contended that, plaintiff did not include all the joint family properties in the suit. PW1 in her evidence has admitted said fact. The suit for partial partition is not maintainable. The said fact was considered by the trial court and on technical ground it has dismissed the suit. There is no illegality in the said finding. Therefore, prays to dismiss the appeal with costs. 21. The following points emerges for our determination: 1. Whether the learned trial judge erred in dismissing the suit when he answered issue Nos.1 and 2 partly in the affirmative? 2. Whether the learned trial judge has properly appreciated the pleadings and evidence produced by the parties to answer issue Nos.1 to 6 and additional issue No.1 ? 3. Whether the interference in the findings of trial Court is required? 4. What order? - 15 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 22. Learned HCGP supported the impugned judgment and submits that there was no reason to interfere in the said judgment. 23. Plaintiff was examined herself as PW1 and in her evidence she has reiterated the plaint averments. She has stated that all the suit properties are joint family properties of plaintiff and defendants. After the death of original propositus Ningappa Channappa Ballary, she is entitled for 1/5th share in the suit schedule properties. In her cross examination, she admitted suggestions of defendants that Sy.No.72/A/2 measuring 5 acres is ancestral property. She has also stated about release of the said property in her favour. She pleads ignorance regarding survey No.131, 132/C and 132A. She has also pleaded ignorance about other facts asked in the cross examination. PW1 admits situation of School building, play ground, laboratory, borewell, water tank, etc., in property mentioned in Ex.D20. She also admits that in the revenue - 16 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 records, name of the school is entered as owners and possessors of the said properties. 24. In further cross examination, PW1 denied the suggestions of defendant No.2 that Sl.Nos.2, 8, 10, 13 and 14 of ‘A’ schedule properties were granted in favour of defendant No.2 after nine years of her marriage. She further stated that she has not produced documents before the court regarding grant of said land. Similarly, defendant No.2 was examined as DW1 and he has stated the contention taken in his written statement and also stated about the acquisition of properties by him i.e. grant of land after the death of his father, in his favour. 25. The trial Court discussed issue Nos.1, 2 and additional issue No.1 together. The trial Court has reproduced certain portion of the evidence of PW1 and DW1. The trial court has not appreciated the said evidence properly to arrive at a certain conclusion. The trial court has not considered as to whether the properties granted in favour of the defendant No.2 were the joint - 17 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 family tenancy or individual tenancy of defendant No.2. It has just quoted the judgment of this court reported in ILR 2013 KTK 6202 in the case of Nimbavva and others V/s Channa- veerappa & others and held that the daughters cannot claim share in respect of the tenanted land. The trial court has not discussed as to whether the principles of law laid down in the said judgment were applicable to the facts of the present case. 26. The trial court in paragraph No.18 of the judgment has noted that “plaintiff did not disclose in the plaint as well as in the affidavit regarding date of her knowledge of gift deed executed by the defendant No.2 in favour of defendants No.8 and 9 and observed that in such circumstances, it cannot be said that the gift deed executed by defendant No.2 is not binding on her. Without assessing the evidence available on record, the trial court answered issue Nos.1 to 3. 27. In issue No.1, the learned trial Judge considered that Sy.No.72/A/2 was a joint family property - 18 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 and held that non-inclusion of the said property in the suit is fatal to the case of the plaintiff. The trial court has not considered the records in this regard, produced by the parties to the proceedings and it has not arrived at a conclusion based on the evidence. Similarly the trial court has not discussed regarding not including of necessary parties in the suit and erroneously answered said issue in the negative. 28. The trial court though held that some of the items of the suit properties are joint family properties and some of the properties of ‘B’ schedule are ancestral joint family properties and plaintiff is entitled for share in the said properties and answered issue Nos.1 and 2 and additional issue No.1 partly in the affirmative. However, while discussing the issue No.3, it is observed that the plaintiff is not entitled for 1/5th share in all the suit schedule properties without assigning proper reasons. The said findings are erroneous. The trial court has not calculated the share for which plaintiff is entitled. - 19 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 29. Looking to the findings of the trial court, as rightly submitted by the learned counsel for both the parties, the trial court has not assessed evidence/materials available on record properly and without considering them gave its findings. The trial Court did not decide which of the properties inherited by the parties to the proceedings, after the death of ancestors. It has not decided as to which of properties were ancestral and joint family properties and which are the self acquired properties of defendant No.2. It has not decided as to which are the joint family properties not included in the present suit. The trial court has not come to any conclusion on these points. The trial court though held that some of the suit properties are joint family properties, but denied share of the plaintiff in the said properties. 30. The learned counsel for the appellant submits that appellant has filed an application to lead additional evidence, since trial court is of the view that matter needs to be remanded to the trial court, she would withdraw the - 20 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 said application with liberty to file such application before the trial court. Her submission is considered and liberty is granted to withdraw and file such application before trial court. The parties are litigating before the court for last 10 years. Therefore, to provide an opportunity to both the parties, plaintiff is permitted to add the left over properties which belong to joint family and she is also permitted to include all the necessary parties to the suit by filing proper applications before the trial Court. If such applications are filed, the trial court shall consider the same in accordance with law and decide the matter. If the plaintiff is permitted to lead evidence to produce additional documents then proper opportunities should also be given to defendants to rebut the said evidence. 31. In view of the above said reasons, we answer point Nos.1, 2 and 3 in the affirmative and proceed to pass the following: ORDER The appeal is allowed. - 21 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 The impugned judgment and decree passed by the Prl. Senior Civil Judge, Haveri in OS No.28/2014 dated 30.09.2021 is set aside. OS No.25/2014 is restored to it’s file. The matter is remanded back to the trial Court, to consider the matter afresh. Both side parties are permitted to file necessary application as observed above. The trial court shall also permit the parties to the proceedings to lead additional evidence if any or permit the appellant to include all the joint family properties which are said to be left over on filing necessary applications. In such event, the trial court shall consider the said applications in accordance with law and pass suitable orders. If appellant leads any additional evidence, suitable opportunity shall be given to the respondents to lead rebuttal evidence. - 22 - NC: 2025:KHC-D:2952-DB RFA No. 100221 of 2021 We have not decided the matter on merits. Therefore, all the contentions of both the parties to the suit are kept open to be decided by the trial Court. The trial Court without influenced by the reasons assigned above shall decide the matter independently in accordance with law. To avoid the delay in disposal of the suit, both the parties are directed to appear before the trial court on 07.04.2025 without expecting notice/summons from the trial court. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE HMB LIST NO.: 1 SL NO.: 17