- 1 - HC-KAR NC: 2026:KHC:1207 RFA No. 729 of 2008 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR FIRST APPEAL NO. 729 OF 2008 (PAR) BETWEEN: 1. SMT BYLAMMA DEAD BY LRS 2. SRI GOVINDAPPA DEAD BY LRS 2(1). SMT. MUNIYAMMA W/O. LATE GOVINDAPPA AGED ABOUT 53 YEARS 2(2). SRI. HEMANTHKUMAR G. S/O. LATE GOVINDAPPA AGED ABOUT 30 YEARS 2(3). SRI. NAGESH G S/O. LATE GOVINDAPPA AGED ABOUT 29 YEARS 3. SMT ARASAMMA W/O MUNIYAPPA D/O LATE T NAGAPPA AGED ABOUT 37 YEARS APPELLANTS NO.2A TO 3 ARE R/AT NO.44, 4TH CROSS, A K COLONY, YEDIYUR, 7TH BLOCK, JAYANAGAR BANGALORE-82 Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:1207 RFA No. 729 of 2008 4. SMT. GALAMMA D/O. LATE NAGAPPA T R/AT NO.44, BYLAMMA HOUSE 4TH CROSS, AK COLONY 7TH BLOCK, JAYANAGAR BENGALURU - 560 082 …APPELLANTS (BY SRI.R.P.SOMASHEKARIAAH, ADVOCATE FOR A2(A-C) & A3 SRI. HAREESH BHANDARY T., ADVOCATE FOR A4) AND: 1. SRI VENKATESH DEAD BY HIS LRS SMT. RAMAKKA W/O LATE VENKATESH AGED ABOUT 48 YEARS 2. SMT RENUKA D/O LATE VENKATESH AGED ABOUT 24 YEARS 3. SRI MANJUNATH B V S/O LATE VENKATESH AGED ABOUT 22 YEARS R1 TO R3 ARE R/AT BHUVANAHALLI VILLAGE SULIBELE HOBLI BANGALORE RURAL DISTRICT 4. SMT LAKSHMI W/O LATE VENKATESH AGED ABOUT 45 YEARS - 3 - HC-KAR NC: 2026:KHC:1207 RFA No. 729 of 2008 5. KUM RADHIKHA D/O LATE VENKATESH AGED ABOUT 23 YEARS 6. KUM ANU D/O LATE VENKATESH AGED ABOUT 21 YEARS 7. KUM NETRAVATHI D/O LATE VENKATESH AGED ABOUT 17 YEARS 8. KUM DEVIKAMANI @ DEVIKARANI D/O LATE VENKATESH, AGED ABOUT 15 YEARS RESPONDENTS NO.7 AND 8 ARE MINORS REP BY THEIR NATURAL GUARDIAN MOTHER SMT. LAKSHMI 9. SRI RAJA S/O LATE T NAGAPPA AGED ABOUT 41 YEARS ALL ARE R/AT NO.44, 4TH CROSS, 2ND FLOOR, YEDIYUR, JAYANAGAR 7TH BLOCK BANGALORE-82 …RESPONDENTS (BY SRI. YOGESH V. KOTEMATH, ADVOCATE FOR R1 TO R3 SRI. RAGHAVA PARTHASARATHY, ADVOCATE FOR R4 - R8 VIDE ORDER DATED 27.03.2012, APPEAL DISMISSED AGAINST R9) - 4 - HC-KAR NC: 2026:KHC:1207 RFA No. 729 of 2008 THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 05.02.2003 PASSED IN OS.NO.7795/2002 ON THE FILE OF THE XX ADDL.CITY CIVIL JUDGE, BANGALORE CITY, CCH.NO.32, PARTLY DECREEING THE SUIT FOR PARTITION, SEPARATE POSSESSION AND MESNE PROFITS. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL ORAL JUDGMENT 1. This appeal is by the defendants in O.S.No.7795/2002, aggrieved by the exparte judgment and decree dated 05.02.2003 passed therein, on the file of XX Additional City Civil Judge at (CCH.No.32), Bengaluru (for short hereinafter referred to as "the Trial Court"), in terms of which, the Trial Court has decreed the suit in part holding the plaintiff to be entitled for 1/5th share in the suit schedule property and has further declared that if he satisfies the entire liabilities on the suit schedule property, he is entitled for the shares of defendant Nos.1 to 4. 2. Brief facts of the case leading up to filing of the present appeal are that; one P.Nagappa was allotted a site bearing No.307/44 the suit schedule property by the Chairman of Yediyur Grama Panchayath on 31.07.1969. There was an old - 5 - HC-KAR NC: 2026:KHC:1207 RFA No. 729 of 2008 dilapidated house existing thereon. Said P.Nagappa passed away on 19.01.1994 leaving behind his wife Smt.Bailamma - defendant No.1, three sons namely Sri.Venkatesh - the plaintiff, Sri.Raja and Sri.Govindappa - defendant Nos.2 and 3, two daughters namely Smt.Arasamma - defendant No.4 and Smt.Galamma - appellant No.4 in this appeal. Upon his demise, the aforesaid legal heirs became entitled for their shares in the suit schedule property. The plaintiff filed the above suit on the premise that he had constructed a building consisting of three floors on the suit schedule property in the year 1988 investing a total sum of ₹7,20,000/-. That the entire cost of construction was borne by the plaintiff alone. 3. Since the defendants were not in a position to arrange the funds, they had executed an unregistered settlement deed dated 28.08.1998 authorising the plaintiff to put up the construction and to recover the money invested by him. After the construction, defendant No.1 was residing in a portion of the ground floor and she had let out the remaining portion of ground floor to third parties and was receiving rentals. Defendant No.4 was in occupation of the first floor and the plaintiff was in possession of the second floor. Thus, the suit - 6 - HC-KAR NC: 2026:KHC:1207 RFA No. 729 of 2008 property was in joint possession of the plaintiff and defendant Nos.1 to 4, each being entitled for one fifth share. 4. That defendant Nos.1 to 4 did not contribute anything in clearing the loan amount. That a sum of ₹1,50,000/- was borrowed from Bharath Co-operative Credit Society Limited in the name of defendant No.1. That there was a dispute raised before the Assistant Registrar of the Co-operative Societies, Chamrajpet, Bangalore in proceeding No.GR.BD.IS/2009/01- 02. An award for recovery of the amount was passed on 15.06.2002. 5. That one Shambashiva Hegde had initiated proceedings for the offence under Section 138 of the Negotiable Instruments Act, 1988 against the plaintiff in PCR No.1771/2000 on the file of the XII Additional Chief Metropolitan Magistrate, Bengaluru. Similarly, one Y.Jagannath Rao also had issued a legal notice calling upon the plaintiff to pay the loan amount. 6. Under the circumstances, though the plaintiff had requested the defendants to repay their share of liability, there was no response. The plaintiff was therefore constrained to - 7 - HC-KAR NC: 2026:KHC:1207 RFA No. 729 of 2008 issue a legal notice dated 05.09.2002 calling upon the defendants to pay their share of liability. Since there was no response in that regard, the plaintiff was constrained to file the suit seeking the following relief: "partition of the suit schedule property and separate possession of their 1/5th share by metes and bounds and further on failure by the defendants 1 to 4 to share the liabilities, the share of the defendants may be allotted to the plaintiff and for enquiry for mesne profits under Order 20 Rule 12 of CPC with costs." 7. It appears, the Trial Court found that despite service of the notice to the defendants, they did not appear, consequently, they were placed ex parte. The Trial Court under these circumstances framed the following points for its consideration; "(i) whether the plaintiff proves that he is entitled for 1/5th share in the suit schedule property? (ii) Whether the plaintiff proves that on failure of the defendant Nos.1 to 4 to share their liabilities in respect of the suit schedule property, he is entitled for the share of the defendants. (iii) To what order or decree? " 8. The plaintiff examined himself as PW1 and has produced twelve documents marked as Exs.P1 to P12. Accepting the - 8 - HC-KAR NC: 2026:KHC:1207 RFA No. 729 of 2008 case of the plaintiff as it is, the Trial Court has decreed the suit by passing the following order; "The plaintiff's suit is decreed in part. The plaintiff is entitled for 1/5th share in the suit schedule property and if he satisfies the entire liabilities on the suit schedule property, he is entitled for the share of defendants 1 to 4. The parties have to bear their own cost." 9. It is against this judgment and decree, the present appeal is filed. 10. There was a delay of 1840 days in filing the present appeal. This Court by Order dated 14.06.2017 has allowed the application in I.A.No.2/2008 condoning the delay. As against the said order, an appeal before the Apex Court was preferred by the plaintiff which came to be dismissed by Order dated 03.07.2021. Thus, the issue of limitation has been put to rest. 11. Learned counsel appearing for the appellants/defendants taking this Court through the records, submits that the Trial Court erred in passing the impugned judgment and decree solely on the premise of there being an alleged deed of settlement entered into between the plaintiff and the - 9 - HC-KAR NC: 2026:KHC:1207 RFA No. 729 of 2008 defendants which is a forged and fabricated document. That no such document was ever entered into between the plaintiff and the defendants. That the Trial Court has not appreciated the material evidence led in by the plaintiff in proper perspective and has mechanically accepted the same, resulting in illegal judgment and decree. It is further submitted that the plaintiff had deliberately not made appellant No.4 Smt.Galamma as a defendant in the suit, despite, she being his sister, thereby misleading the Trial Court in obtaining the ex parte judgment and decree. That the suit schedule property being the absolute property of T.Nagappa, the defendants being the wife and children were entitled for the share in the suit schedule property which the Trial Court has not appreciated while granting the decree of this nature. It is further contented that the relief sought for in the plaint is completely different and distinct from the one granted by the Trial Court. That the decree passed runs contrary to the very case of the plaintiff, therefore, the same is unsustainable. 12. Per contra, the counsel Sri.Raghavendra Parthasarathy, appearing for the plaintiff since deceased, by his legal representatives justifying the judgment and decree vehemently - 10 - HC-KAR NC: 2026:KHC:1207 RFA No. 729 of 2008 submits that the defendants have not placed anything on record to rebut the case of the plaintiff of he having repaid the entire sum of ₹7,20,000/-. That the plaintiff had placed on record the documents in the nature of proceedings before the Assistant Registrar of Co-operative Societies initiated by the Secretary of the Bharath Co-operative Credit Society, which culminated in passing of the award for a sum of ₹1,50,280/- which was paid and cleared by the plaintiff alone. He also refers to the notice issued by the plaintiff to the defendants as per Ex.P7 wherein, according to him, the plaintiff has specifically narrated the names of the persons from whom he had borrowed the loans and he having repaid the same to them. He submits that the settlement deed produced at Ex.P12 has remained unchallenged, which was consciously entered into by the defendants, relinquishing their share, right and interest in favour of the plaintiff, being aware of the fact that the entire cost of construction was borne by the plaintiff. Therefore, he submits that the Trial Court has not committed any error or illegality in passing the judgment and decree. Hence, he seeks for dismissal of the appeal. 13. Heard. Perused the records. - 11 - HC-KAR NC: 2026:KHC:1207 RFA No. 729 of 2008 14. The point that arise for consideration is; "1. Whether the plaintiff has proved that he had borrowed a sum of Rs.7,20,000/- for the purpose of constructing residential building and has repaid the entire liability by himself without any contention from defendant Nos.1 to 4? 2. Whether on the facts and in law, the Trial Court is justified in passing the impugned judgment and decree holding that the plaintiff be entitled for the entire suit schedule property solely based on the purported settlement deed dated 28.08.1998 allegedly executed by the defendants?" POINT No.1:- 15. The relationship between the parties is not in dispute. Suit schedule property originally having been allotted to P.Nagappa is also not in dispute. 16. It is settled position of law that even when an ex parte judgment and order is required to be passed, the Court or Authority, as the case may be has to be doubly cautious in that, it is required not only to consider the case of the plaintiff but also required to protect the interest of the person who is not before the Court. There is no scope or room for automatic - 12 - HC-KAR NC: 2026:KHC:1207 RFA No. 729 of 2008 or mechanical acceptance of the case of the plaintiff. The plaintiff has to stand on his own feet, producing the documents and the evidence which are cogent and legally acceptable, in the absence of which, he would not be entitled to the relief as sought for. 17. The Hon'ble Apex Court in the case of Maya Devi Vs. Lalta Prasad, reported in (2015) 5 SCC 588 at Paragraph 41 has held as under; "41. The absence of the defendant does not absolve the trial court from fully satisfying itself of the factual and legal veracity of the plaintiff's claim; nay, this feature of the litigation casts a greater responsibility and onerous obligation on the trial court as well as the executing court to be fully satisfied that the claim has been proved and substantiated to the hilt by the plaintiff. Reference to Shatilal Gulabchand Mutha v. TELCO Ltd., will be sufficient. The failure to file a written statement, thereby bringing Order 8 Rule 10 CPC into operation, or the factum of the defendant having been set exparte, does not invite a punishment in the form of an automatic decree. Both under Order 8 Rule 10 CPC and on the invocation of Order 9 CPC, the court is nevertheless duty-bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted." 18. In the instant case, as noted above, the relief sought for by the plaintiff is a conditional relief of partition that is though the plaintiff has sought for partition and allotment of his 1/5th - 13 - HC-KAR NC: 2026:KHC:1207 RFA No. 729 of 2008 share, he has made further claim for allotment of shares of defendants in his favour on their failure to share the liability. This requires plaintiff to plead and prove the alleged loan transaction and also alleged understanding of defendants giving up their shares in terms of purported settlement deed. 19. Plaintiff claims to have borrowed a total sum of ₹7,20,000/- from various persons. Nothing is placed on record, to show the dates, amounts and the details of the persons from whom he had borrowed the said loan. Similarly, no piece of evidence is produced to show that the plaintiff had indeed repaid the said loan amount of Rs.7,20,000/-. Only material produced is the award passed by the Assistant Registrar of the Co-operative Societies in No.GR.BD.IS/2009/01-02 for Rs.1,50,280/- and the notice at Ex.P7. Said sum of Rs.1,50,000/- is stated to have been borrowed by defendant No.1 and not the plaintiff. The said evidence in the considered view of this Court would not be sufficient to justify the claim of the plaintiff of his borrowing the loan of Rs.7,20,000/- and repaying the same. - 14 - HC-KAR NC: 2026:KHC:1207 RFA No. 729 of 2008 POINT No.2:- 20. The Trial Court has extracted purported deed of settlement in paragraph No.9 of the impugned judgment. Though the execution of the said document is vehemently denied by the defendants alleging the same being forged and fabricated by the plaintiff, even for the sake of consideration of such contention, perusal of the said document would indicate that the defendants had allegedly agreed to share the liability incurred by the plaintiff for the purpose of construction of building on the suit schedule property and they had further allegedly agreed that in the event of they not being able to repay the loan, they would not claim any share, title or interest in the suit schedule property. The said document is an unregistered document. Assuming that even if the said document had created any interest / right in favour of the plaintiff over the shares of defendants, he ought to have specifically pleaded and proved that he had indeed called upon the defendants to make the payment of the loan amount as purportedly agreed in the alleged deed of settlement. There is no whisper in the plaint in this regard. - 15 - HC-KAR NC: 2026:KHC:1207 RFA No. 729 of 2008 21. The plaintiff has produced a copy of the notice at Ex.P7 - purportedly issued by him demanding loan amount from the defendants. Notice at Ex.P7 is dated 05.09.2002 which runs into four pages. No doubt, the plaintiff at Paragraph No.6 of the said notice has given the names and the quantum of the amounts which he had allegedly borrowed, but, it falls short of any further details such as dates on which said loans were borrowed. Interestingly, in the said notice, there is no whisper regarding the so called Settlement Deed which alleged to have been executed by the defendants on 28.08.1998. If the whole premise of the case of the plaintiff of he being entitled for the entire suit schedule property, depriving the shares of the defendants, solely on account and in terms of the alleged deed of settlement, nothing prevented the plaintiff to have stated about the same in the notice produced at Ex.P7. This only leads to an irresistible inference and conclusion that such a settlement deed was never in existence as on the date when he had issued the notice at Ex.P7. The Trial Court has failed to take into consideration this aspect of the matter. 22. There is yet another aspect of the matter which the Trial Court has lost sight of. The alleged deed of settlement is an - 16 - HC-KAR NC: 2026:KHC:1207 RFA No. 729 of 2008 unregistered document, which purports to create right, title and interest in an immovable property. Needless to state, creation of any right, title and interest in an immovable property value of which is more than Rs.100/-, can only be made as contemplated under the provision of Section 17 of the Indian Registration Act. The Trial Court has lost sight of this aspect of the matter as well. In any event, the purported deed of settlement would not create any share, right, title and interest in the suit schedule property. If at all the said document has any existence, the same could have been used to recover the money, if any. 23. In the absence of any pleading and proof produced by the plaintiff on record before the Trial Court, of he having borrowed the loan and he having repaid the same as claimed, the Trial Court ought not to have come to the conclusion of plaintiff having borrowed the loan and repaid the same merely because the plaintiff has said so. 24. As regards the relief granted by the Trial Court, as already noted, the plaintiff has couched the relief for partition and allotment of his 1/5th share and for allotment of the shares - 17 - HC-KAR NC: 2026:KHC:1207 RFA No. 729 of 2008 of the defendants, in the event of their failure to pay their liabilities. Such a relief could not have been granted by the Trial Court without ascertaining if there was a demand for payment alleged liabilities made by the plaintiff and if there is a refusal to pay the same by the defendants. It also ought to have ascertained if the plaintiff had indeed paid the entire Rs.7,20,000/- as claimed by him. The Trial Court has erred on all these counts. 25. In the light of the above reasons and analysis, this Court is of the considered view that the judgment and decree passed by the Trial Court is unsustainable. 26. Since there is no dispute of the fact that the original defendant No.1 being the wife and defendant Nos.2 to 4 and appellant No.4 herein and the plaintiff being the children of T.Nagappa, in the normal course would be entitled for 1/6th share each in the suit schedule property. Now, it is stated that even defendant No.1 - the mother is also no more. Therefore, the sons and the daughters of Sri.T.Nagappa ie., Sri.Venkatesh - plaintiff, Smt.Galamma - appellant No.4 herein, Sri.Raja - defendant No.2, Sri.Govindappa - defendant No.3 and - 18 - HC-KAR NC: 2026:KHC:1207 RFA No. 729 of 2008 Smt.Arasamma - defendant No.4, would be entitled for 1/5th equal share, in the suit schedule property. 27. At this juncture, it is submitted that the original plaintiff deceased Venkatesh had three wives. Respondent No.1 is the first wife and respondent No.4 is the third wife and respondent Nos.2 and 3 are the children from the first wife and respondent Nos.5 to 8 are the children from the third wife. It is further submitted that there is a suit pending inter se respondent No.1 and respondent No.4 in O.S.Nos.2110/2015 and 8172/2017 with regard to declaration of their marital status vis-a-vis the plaintiff. 28. It is made clear that entitlement of respondent Nos.1 to 8 in the suit schedule property would be, subject to outcome of the said suits, only to the extent of 1/5th share of the plaintiff. With the above observations, the following; ORDER (i) The appeal is allowed. (ii) The plaintiff and defendant Nos.2, 3, 4 and 5 being the children of Sri.T.Nagappa are held entitled for 1/5th share each in the suit schedule property. - 19 - HC-KAR NC: 2026:KHC:1207 RFA No. 729 of 2008 (iii) Registry to draw decree accordingly. (iv) In view of disposal of the appeal, pending applications, if any, stand disposed of. Sd/- (M.G.S. KAMAL) JUDGE GH List No.: 1 Sl No.: 1