- 1 - HC-KAR NC: 2026:KHC-D:539 RSA No. 100781 of 2024 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 19TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR SECOND APPEAL NO. 100781 OF 2024 (PAR/POS) BETWEEN: 1. LAXMIBAI W/O. LATE RAVI JADHAV, AGE: 42 YEARS, OCC: HOUSEHOLD WORK. 2. ABHISHEK S/O. LATE RAVI JADHAV, AGE: 20 YEARS, OCC: STUDENT. 3. AKSHATA D/O. LATE RAVI JADHAV, AGE: 18 YEARS, OCC: STUDENT, ALL ARE R/O. HONNAKATTI, TQ. DT. BAGALKOT-587111. …APPELLANTS (BY SRI HARISH B. S., ADVOCATE.) AND: 1. SMT. SHOBHA W/O. SUBHAS PAWAR, BEFORE MARRIAGE SHOBHA D/O. MANOHAR JADHAV, AGE: 38 YEARS, OCC: HOUSE HOLD, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2026:KHC-D:539 RSA No. 100781 of 2024 R/O. KANAMADI, TQ. DT. VIJAYAPUR-586114. 2. KASHIBAI W/O. MANOHAR JADHAV, AGE: 65 YEARS, OCC: HOUSE HOLD, R/O. HONNAKATTI, TQ. DT. BAGALKOT-587111. 3. SARAJIRAO S/O. MANOHAR JADHAV, AGE: 43 YEARS, R/O. HONNAKATTI, TQ. DT. BAGALKOT-587111. …RESPONDENTS (BY SMT. GEETHA K. M., ADV. FOR R1 TO R3) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 17.09.2019 PASSED BY THE 1ST ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, BAGALKOT IN O.S.NO.18/2018 AND SET ASIDE THE JUDGMENT AND DECREE DATED 09.07.2024 PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK SPECIAL COURT- I BAGALKOT, AT BAGALKOT IN R.A.NO.219/2019, AND CONSEQUENTLY DISMISS THE SUIT BEARING O.S.NO.18/2018 FILED BY THE RESPONDENT NO.1 AND ETC. THIS APPEAL COMING ON FOR DICTATING JUDGMENT, THIS DAY JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2026:KHC-D:539 RSA No. 100781 of 2024 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This regular second appeal is filed by defendant Nos.3 to 5 challenging the judgment decree dated 09.07.2024 passed in RA No.219/2019 on the file of Additional District and Sessions Judge, Fast Track Special Court-I Bagalkot1, by confirming and judgment and decree dated 17.09.2019 passed in O.S.No.18/2018 on the file of I Additional Senior Civil Judge and JMFC, Bagalkot2, while reserving liberty to defendant Nos.3 to 5 to file a separate suit for partition in respect of the house and site properties bearing VPC Nos.270A, 270B and 270C 2. For the purpose of convenience and easy reference, ranking of the parties is referred to as per their status before the trial Court. 1 Hereinafter referred to as “first appellate Court” 2 Hereinafter referred to as “trial Court” - 4 - HC-KAR NC: 2026:KHC-D:539 RSA No. 100781 of 2024 3. The plaintiff has filed a suit for partition and separate possession of the suit schedule properties, which are landed properties. 4. The admitted genealogy is as follows. Manohar S/o. Ramachandra Jadhav-(Propositus)(Died Kashibai W/o. Manohar Jadhav-(Wife)(Age: 65) Sanjerav S/o. Shobha W/o. Ravi S/o. Manohar Jadhav Manohar Jadhav Suresh Pawar Son (Died) Son (Age: 40) Daughter (Age 37) Laxmibai W/o. Ravi Jadhav (Daughter in law, Age: 34) Abhishek Akshata S/o. Ravi Jadhav S/o. Ravi Jadhav (Grandson, Age: 15) (Granddaughter, Age:13) 5. The suit schedule properties are follows. Sl.No. R.S.No. Area Asse. Market Value 1. 62/1B 02A-09G. 4.60 Paise 14,00,000/- 2. 62/2B 01A-31G. 3.67 Paise 10,00,000/- - 5 - HC-KAR NC: 2026:KHC-D:539 RSA No. 100781 of 2024 6. The trial Court decreed the suit by granting 1/4th share to the plaintiff and awarded half share each to defendant Nos.1 and 2 in the suit schedule properties. 7. Being aggrieved by the same, defendant Nos.3 to 5 have preferred a Regular Appeal before the First Appellate Court and the First Appellate Court confirmed the judgment and decree passed by the trial Court and reserved liberty to defendant Nos.3 to 5 to file a separate suit for partition in respect of the house and site properties bearing VPC Nos.270A, 270B and 270C. 8. Being aggrieved by the order of First Appellate Court, defendant Nos.3 to 5 have preferred the present Regular Second Appeal. 9. This Court, on 30.01.2025, framed the following substantial questions of law: 1. Whether the First Appellate Court has committed an error in directing defendants No.3 to 5 file separate suit seeking partition?. - 6 - HC-KAR NC: 2026:KHC-D:539 RSA No. 100781 of 2024 2. Whether the suit filed by the plaintiff is maintainable without including the entire joint family properties? 10. Learned counsel for appellants/defendant Nos.3 to 5 submitted that both the trial Court and first appellate Court have not granted any share separately to defendant No.3. Therefore, he prays to grant a share to defendant No.3, who is the wife of Ravi Jadhav. 11. Learned counsel for respondents justified the order passed by the trial Court and first appellate Court and prays for dismissal of the appeal. 12. Upon considering the pleadings and evidence on record, the relationship between the parties as shown in the genealogy and the landed properties as shown in the plaint are joint family properties are admitted. However, defendant Nos.3 to 5 filed a separate written statement contending that the plaintiff has not included other properties bearing VPC Nos.270A, 270B and 270C, which stand in the name of defendant No.1. Therefore, it is - 7 - HC-KAR NC: 2026:KHC-D:539 RSA No. 100781 of 2024 contended that the suit filed for partial partition is not maintainable. 13. The plaintiff has filed the suit for partition only inspect of two land properties as shown above. However, upon considering the documentary evidence placed by defendant Nos.3 to 5, it is evident that the family also owns three other properties bearing VPC Nos.270A, 270B and 270C, which stand in the name of defendant No.1, who is wife of Manohar Jadhav. The trial Court granted a 1/4th share to the plaintiff and half share to defendant Nos.1 and 2, which was confirmed by the first appellate Court. However, the first appellate Court has reserved liberty to defendant Nos.3 to 5 to file a separate suit for claiming share in the properties bearing VPC Nos.270A, 270B and 270C. 14. The first question to be considered in this appeal is whether the allotment of shares is correct or not. After the death of Manohar Jadhav, the plaintiff, defendant Nos. 1 - 8 - HC-KAR NC: 2026:KHC-D:539 RSA No. 100781 of 2024 and 2, and another son Ravi Jadhav, being Class-I legal heirs, are entitled to inherit the property as per Section 8 of the Hindu Succession Act. Therefore, the plaintiff, defendant Nos. 1 and 2, and deceased Ravi are each entitled to a 1/4th share. However, the trial Court committed an error in granting half share to defendant Nos.1 and 2, thereby completely debarring the entitlement of Ravi Jadhav, which was also confirmed by the First Appellate Court. Hence, the quantum of share granted is not correct. Consequently, defendant Nos.3 to 5, being the wife and children of Ravi Jadhav, are together entitled to Ravi Jadhav’s 1/4th share. To this extent, the judgment and decree passed by the trial Court and the First Appellate Court are liable to be modified. 15. Further, considering the pleadings of defendant Nos.3 to 5 and the evidence adduced at Exs.D1 to D3, it is proved that the family of the plaintiff and defendants owns three other properties bearing VPC Nos.270A, 270B, and 270C, which stands in the name of defendant No.1. Merely because these properties stand in the name of defendant - 9 - HC-KAR NC: 2026:KHC-D:539 RSA No. 100781 of 2024 No.1 cannot by itself establish that she is the exclusive owner in the absence of evidence showing that the properties were acquired from her self-earned income. Therefore, these properties are proved to be joint family properties from the time of Manohar Jadhav. Hence, the plaintiff, defendant Nos.1 and 2, and deceased Ravi are entitled to shares in these properties. Accordingly, the First Appellate Court is correct in reserving liberty to defendant Nos.3 to 5 to file a separate suit for partition in respect of properties bearing VPC Nos.270A, 270B, and 270C. 16. The first appellate Court has placed reliance of Supreme Court in the case of B R Patil Vs Tulsa Y Sawkar3, in paragraph No.10, which is reads as follow: “10. This is the state of the pleading and evidence in support of the existence of the property other than what has been scheduled by the plaintiff and for which partition is sought. It is true that the law looks with disfavor upon properties being partitioned partially. The principle that there cannot be a partial partition is not an absolute one. It admits of exceptions. In Mayne’s ‘Treatise on Hindu Law & Usage’ 17th Edition, Paragraph 487, reads as follows: 3 2022 SCC online SC 240 - 10 - HC-KAR NC: 2026:KHC-D:539 RSA No. 100781 of 2024 ““487. Partition suit should embrace all property – Every suit for a partition should ordinarily embrace all joint properties. But this is not an inelastic rule which admits circumstances of a particular case or the interests of justice so require. Such a suit, however, may be confined to a division of property which is available at the time for an actual division and not merely for a division of status. Ordinarily a suit for partial partition does not lie. But, a suit for partial partition will lie when the portion omitted is not in the possession of coparceners and may consequently be deemed not to be really available for partition, as for instance, where part of the family property is in the possession of a mortgagee or lessee, or is an impartible Zamindari, or held jointly with strangers to the family who have no interest in the family partition. So also, partial partition by suit is allowed where different portions of property lie in different jurisdictions, or are out of British India. When an item of property is not admitted by all the parties to the suit to be their joint property and it is contended by some of them that it belongs to an outsider, then a suit for partition of joint property excluding such item does not become legally incompetent of any rule against partial partition.” 17. Another judgment of Delhi High Court in the case of Kumari Laxmi Vs Rama Devi and others4, in paragraphs Nos.52, 53, 54, 55 and 56 which reads as follows: 52. It is no doubt a suit in respect to more than one property situated in jurisdiction of different Courts can be instituted in a Court within local limits of jurisdiction, where one or more properties are situated provided that the suit is 4 C.R.P.No.235/2019 - 11 - HC-KAR NC: 2026:KHC-D:539 RSA No. 100781 of 2024 based on same cause of action with respect to the properties situated in jurisdiction of different Courts, however, the principles laid down by the Hon'ble Supreme Court also provides for subsequent partition of the left out properties. 53. 53. It is true that the general rule prohibits partial partition as it could create multiplicity of proceedings and different Courts may end up with conflicting findings. However, in certain cases, an exception is created, partial partition has been permitted. Therefore, the learned Court below ought to have analysed the facts and then only should have decided on the application filed by the respondents. 54. The hypothesis of departure from the general rule has been examined by the Hon'ble Supreme Court in B.R. Patil v. Tulsa Y. Sawkar, 2022 SCC OnLine SC 240, whereby, the Hon'ble Supreme Court referred to the authority regarding the said issue and held as under: "10. This is the state of the pleading and evidence in support of the existence of the property other than what has been scheduled by the plaintiffs and for which partition is sought. It is true that the law looks with disfavor upon properties being partitioned partially. The principle that there cannot be a partial partition is not an absolute one. It admits of exceptions. In Mayne's „Treatise on Hindu Law & Usage‟ 17th Edition, Paragraph 487, reads as follows: "487. Partition suit should embrace all property - Every suit for a partition should ordinarily embrace all joint properties. But this is not an inelastic rule which admits circumstances of a particular case or the interests of justice so require. Such a suit, however, may be confined to a division of property which is available at the time for an actual division and not merely for a division of status. Ordinarily a suit for partial partition does not lie. But, a suit for partial partition will lie when the portion omitted is not in the possession of coparceners and may consequently be deemed not to be really available for partition, as for instance, where part of the family property is in the possession of a - 12 - HC-KAR NC: 2026:KHC-D:539 RSA No. 100781 of 2024 mortgagee or lessee, or is an impartible Zamindari, or held jointly with strangers to the family who have no interest in the family partition. So also, partial partition by suit is allowed where different portions of property lie in different jurisdictions, or are out of British India. When an item of property is not admitted by all the parties to the suit to be their joint property and it is contended by some of them that it belongs to an outsider, then a suit for partition of joint property excluding such item does not become legally incompetent of any rule against partial partition." 55. In Pradeep Chand Sharma v. Budhi Devi, 2017 SCC OnLine HP 1911, the Co-ordinate Bench of the Himachal Pradesh High Court dealt with the said aspect and held as follows: "20. However, even suits praying for partial partition have also been recognized under some of the following circumstances, namely: (i) where different portions of family property are situated in different districts, separate suits for partition for lands of each district may be brought; (ii) it may be allowed when portion of joint property at the time of the suit for partition is incapable of partition; (iii) where the property left out from its very nature impartible; (iv) where the property is held jointly with strangers who cannot be joined as parties to a general suit for partition the same may be left out; or (v) where the co-owners by mutual agreement decide to make partition of the joint family property leaving some portion in common. (Refer : Harey Harey Singha Chowdhury v. Hari Chaitanya Singha Chowdhury 40 CWN 1237; Mansharam v. Ganesh 17 CWN 521; Panchanan Mallick v. Shiv Chandra ILR 14 Cal 805; Balaram v. Ramchandra ILR 22 Bom 922; Abdul Karim v. Badruddin ILR 28 Mad 216). - 13 - HC-KAR NC: 2026:KHC-D:539 RSA No. 100781 of 2024 21. Therefore, it is not in all events that partial partition is impermissible. 22. The purpose and object for insisting in a suit for partition that the entire joint property owned by the co- owners whether as joint tenants or tenants-in-common, must be brought into hotchpot in division is to ensure that much inconvenience is not caused to the opposite parties who are also co-heirs, because such suits lead to multiplicity of litigation and consequent harassment, inconvenience and endless litigation. 23. The rule against partial partition is only one of equity and convenience. Therefore, it is better to limit the rule in its application to properties over which the parties have community of interest and unity of possession. If partial partition can be had without inconvenience to the other sharers and if it will not stand in the way of equities being adjusted, it is not necessary to insist that all properties will have to be scheduled. 24. Thus, what can be taken to be settled is that there is no legal inhibition if there are justifying features in allowing a suit for partial partition. However, normally a distinction has to be made between partition of joint family property (joint tenants) and partition among tenants-in-common. The reason for the distinction is that in the former case, unlike in the latter case, there is unity of title, interest and possession over each and every item of property and hence the normal rule is that partition should be of entire properties of the joint family. In the case of partition between co-parceners (in respect of joint family properties) the entire property must be thrown into hotchpot except for certain well recognized exceptions." 56. On perusal of the aforesaid, it is crystal clear that the partial partition of the properties is not strictly prohibited, rather has been advised and considered useful for convenience of the parties to the partition sometimes. The abovesaid judicial dicta also makes it clear that the suit filed for partition should embrace the properties left by a deceased, however, the non-inclusion of certain properties grants right to the aggrieved party to file for a subsequent suit of partition for the left-out properties. - 14 - HC-KAR NC: 2026:KHC-D:539 RSA No. 100781 of 2024 18. The Hon’ble Supreme Court in the case M/s Kalloomal Tapeswari Prasad (HUF) Vs Commissioner of Income Tax, Kanpur5 in para Nos.16 and 17 as follows. “16. Under Hindu law partition may be either total or partial. A partial partition may be as regards persons who are members of the family or as regards properties which belong to it. Where there has been a partition, it is presumed that it was a total one both as to the parties and property but when there is a partition between brothers, there is no presumption that there has been partition between one of them and his descendants. It is, however, open to a party who alleges that the partition has been partial either as to persons or as to property to establish it. The decision on that question depends on proof of what the parties intended — whether they intended the partition to be partial either as to persons or as to properties or as to both. When there is partial partition as to property, the family ceases to be undivided so far as properties in respect of which such partition has taken place but continues to be undivided with regard to the remaining family property. After such partial partition, the rights of inheritance and alienation differ accordingly as the property in question belongs to the members in their divided or undivided capacity. Partition can be brought about (1) by a father during his lifetime between himself and his sons by dividing properties equally amongst them, (2) by agreement, or (3) by a suit or arbitration. A declaration of intention of a coparcener 5 (1982) 1 SCC 447 - 15 - HC-KAR NC: 2026:KHC-D:539 RSA No. 100781 of 2024 to become divided brings about severance of status. As observed by the Privy Council in Appovier v. Rama Subba Aiyan when the members of an undivided family agree among themselves with regard to a particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with; and in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severally, although the property itself has not been actually severed and divided”. A physical division of the property which is the subject-matter of partition is not necessary to complete the process of partition insofar as that item of property is concerned under Hindu law. The parties to the partition may enjoy the property in question as tenants-in-common. In Appovier case the Privy Council further laid down that “if there be a conversion of the joint tenancy of an undivided family into a tenancy-in- common of the members of that undivided family, the undivided family becomes a divided family with reference to the property that is the subject of that agreement, and that is a separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may, at any time, be claimed by virtue of the separate right”. 17. It is thus clear that Hindu law does not require that the property must in every case be partitioned by metes and bounds or physically into different portions to complete a partition. Disruption of status can be brought about by any of - 16 - HC-KAR NC: 2026:KHC-D:539 RSA No. 100781 of 2024 the modes referred to above and it is open to the parties to enjoy their share of property as tenants-in-common in any manner known to law according to their desire. But the income tax law introduces certain conditions of its own to give effect to the partition under Section 171 of the Act”. 19. Therefore, under these circumstances, partial partition is permissible by exercising power under Section 151 of the CPC to avoid relegating the parties to file another suit. Considering that defendant No.1 is aged about 72 years and is suffering from deteriorating health conditions, the trial Court was justified in decreeing the suit for partial partition. The First Appellate Court was also justified in reserving liberty to defendant Nos.3 to 5 to claim their share in properties bearing VPC Nos.270A, 270B, and 270C without disturbing the judgment and decree in respect of the two landed properties. Accordingly, the judgment and decree passed by the trial Court are modified to the extent of holding that the plaintiff, defendant No. 1, and defendant No.2 are each entitled to 1/4th share, and defendant Nos.3 to 5 are together entitled to 1/4th share in the suit - 17 - HC-KAR NC: 2026:KHC-D:539 RSA No. 100781 of 2024 properties. The liberty granted by the First Appellate Court regarding properties bearing VPC Nos. 270A, 270B, and 270C is liable to be confirmed. Accordingly, substantial question of law No.1 is answered in the negative, and No.2 is answered in the affirmative holding that the suit filed by the plaintiff for partial partition is maintainable in the context of facts and circumstance involved in the case also considering the defendant No.1 is 72 years old. 20. Hence, I proceed to pass the following: ORDER i. The regular second appeal is allowed in part. ii. The judgment decree dated 09.07.2024 passed in RA No.219/2019 on the file of Additional District and Sessions Judge, Fast Track Special Court-I Bagalkot, by confirming and judgment and decree dated 17.09.2019 passed in O.S.No.18/2018 on the file of I Additional Senior Civil Judge and JMFC, Bagalkot - 18 - HC-KAR NC: 2026:KHC-D:539 RSA No. 100781 of 2024 judgment and decree dated 17.09.2019 passed in O.S.No.18/2018 on the file of I Additional Senior Civil Judge and JMFC, Bagalkot is modified. iii. The plaintiff, defendant Nos.1 and 2 are entitled 1/4th share each in the suit schedule properties. Defendant Nos.3, 4 and 5 are entitled 1/4th share together in the suit schedule properties. iv. The liberty reserved by the first appellate Court dated 09.07.2024 passed in RA No.219/2019 on the file of Additional District and Sessions Judge, Fast Track Special Court-I Bagalkot, to defendant Nos.3 to 5 to file suit for partition in respect of the house and site i.e., VPC Nos.270A, 270B and 270C properties is hereby confirmed. - 19 - HC-KAR NC: 2026:KHC-D:539 RSA No. 100781 of 2024 v. Registry is directed to transmit the TCR along with copy of this order to the trial Court forthwith. vi. Draw decree accordingly. vii. No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE ASN /CT-AN List No.: 1 Sl No.: 69