IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 23 R D DAY OF MAY, 2022

BEFORE

THE HON’BLE MR.JUSTICE RAVI V.HOSMANI

R.F.A. NO.892/2006 (PAR)

BETWEEN

SMT PARVATEVVA @ SHANTAVVA

W/O.NAGAPPA MULTIMANI @ MUDIHAL
AGE.55 YEARS,
OCC.HOUSEHOLD WORK/AGRICULTURE,
R/O.NITTUR TQ.RANEBENNUR,
DIST.HAVERI-581 115.
...APPELLANT
(BY SRI LOKESH MALAVALLI ADV.,
SRI G.N.NARASAMMANAVAR, ADV.,)

AND

1 . SMT BASAVVA
W/O KENCHAPPA K ANCHELLAR
@ BANKAR, AGE:80 YEARS
OCC:HOUSEHOLD WORK
R/O.CHEPPARADAHALLI
TQ.RANEBENNUR
DIST.HAVERI-581 115.

2 . SMT MAHADEVAKKA
W/O.SHIDDAPPA K UPADA
AGE.58 YEARS
OCC:HOUSEHOLD WORK
AND AGRICULTURE
R/O.MAKARI
TQ.HIREKERUR
DIST.HAVERI-581 115.

3 . TIRAKAPPA K ENCHAPPA BANKAR

@ KENCHELLARA
AGE.48 YEARS
OCC: AGRICULT URE
 2

R/O.CHEPPARADAHALLI
TQ.RANEBENNUR,
DIST.HAVERI-581 115.

4 . ANANDAVVA
W/O.HEMAPPA YALAVATTERA
AGE.42 YEARS
OCC:HOUSEHOLD WORK
R/O.RANEBENNUR KURABAGERI
RANEBENNUR
DIST.HAVERI-581 115.

5 . RENUKAVVA
W/O.CHANDRAPPA SANNASARATOOR
AGE.38 YEARS
OCC: HOUSE HOLD WORK
R/O.CHIKKAMAGANUR
TQ.RANEBENNUR
DIST.HAVERI-581 115.

6 . SHANTAVVA @ VANAJAKSHAVVA
W/O.SHANKARAGOUDA PATIL
AGE.35 YEARS
OCC: HOUSEHOLD WORK
R/O.DODDAGUBBI
TQ.HIREKERUR
NOW AT CHIKKAMAGANUR
TQ.RANEBENNUR
DIST.HAVERI-581 115.

…RESPONDENTS

(BY SRI S.G.KODADAKATTI, ADVOCATE, FOR R3;

SRI R.K.KALKARNI, ADVOCATE FOR R5 & R6;
NOTICE SERVED T O R1, R2 & R4)

THIS RFA FILED U/S.96 OF CPC AGAINST THE JUDGMENT

AND DECREE DAT ED 23.02.2006 PASSED IN O.S.NO.76/96 ON
THE FILE OF THE CIVIL JUDGE (SR.DN.) AND PRL. JMFC.,
RANEBENNUR, DISMISSING THE SUIT FOR PARTITION AND
SEPARATE POSSESSION.
 3

THIS RFA HAVING HEARD AND RESERVED ON 28.03.2022

THIS DAY, T HE COURT PRONOUNCED THE FOLLOWING:

JUDGMENT

Challenging judgment and decree dated 23.02.2006

passed by Civil Judge (Sr.Dn.) and Principal, JMFC at

Ranebennur, in O.S.No.76/1996, this first appeal is filed by

unsuccessful plaintiff.

2. Appellant herein was plaintiff in suit, while

respondents herein were defendants no.1 to 6 respectively.

For sake of convenience they shall hereinafter be referred to

as per their respective ranks in original suit.

3. O.S.No.76/1996 was filed seeking for relief of

partition and separate possession of plaintiff’s 1/4th share in

suit properties namely:

A) Properties situated in Chapparadahalli, Hirekerur Taluk:

1. R.S.No.51/1+2 measuring 3 acres 27 guntas

2. R.S.No.57/1 measuring 3 acres 9 guntas
3. R.S.No.62/5 measuring 1 acre 29 guntas
4. R.S.No.62/1A+1B measuring 1 acre 16 guntas
 4

B) House site and vacant plot in Chapparadahalli:

(1) V.P.C. No.51 (including house with tiled roof) measuring

East – West 30ft. and North-South 70 ft. bounded on East by

property of Shivappa Ingalagundi, West by property of

Dyavappa Banakar, North by property of Hanumanthappa

Basappa Banakar and South by property of defendant’s

portion in V.P.C.No.52.

(2) Open plot bearing V.P.C.No.52 totally measuring East –

West 30 ft. North – South 30ft. bounded on East by property

of Hemappa Ingalagundi, West by property of Dyavappa

Banakar, North by property belonging to plaintiff and

defendants and South by property of Hanumanthappa

Basappa Banakar and

C) Properties situated in Chikkamaganur village, Hirekerur

Taluk:

(1) R.S. No. 8/8A+B+C measuring 3 acres 10 guntas

(2) Sy.No.40/1A+B+2 measuring 4 acres 8 guntas

(hereinafter referred to as ‘suit properties’ for short)

 5

4. In plaint, it was stated that Kenchappa - propositus

and his wife Basavva (defendant no.1) had four children

namely Parvathevva (deceased), Mahadevakka (defendant

no.2), Shantavva @ Parvathevva (plaintiff) and Tirakappa

(defendant no.3). Eldest daughter Parvathevva died during

1990 survived by three daughters viz., Anandavva, Renukavva

and Shantavva (defendants no.4, 5 and 6 respectively). It was

stated that during life time of propositus, all members of joint

family were in joint cultivation and possession of suit

properties. There was no partition effected between them and

propositus died on 24.07.1978. Thereafter mother of

defendants no.4 to 6 died in 1990. It was further specifically

stated that there was no partition of joint family properties. As

all other members were women, lands were being cultivated

by defendant no.3, but income was distributed to all. It was

specifically asserted that plaintiff had never executed any gift

deed or relinquishment deed giving up their share in joint

family property. It was stated that when partition was sought,

 6

defendants refused same on the basis of false mutation entries

which gave rise to cause of action for filing suit.

5. Upon service of suit summons, defendants no. 2 and

3 filed written statement contending that defendant no.3 was

still a minor when propositus became old-aged. At that time,

plaintiff along with her husband left Nittur and came to

Chapparadahalli to manage family affairs of propositus. It was

further stated that one year prior to death of propositus,

plaintiff was given Rs.1,00,000/- in cash and 10 tolas of gold

and other valuable properties towards her share, for which she

had given up right over suit schedule properties in favour of

defendant no.3. Likewise, defendant no.1, defendant no.2 and

mother of defendants no.4 to 6 also received cash, gold and

other valuable properties to give up their rights in suit

property. Thus, there was partition effected in the year 1982

and name of defendant no.3 was mutated in revenue records

as per M.E.No.705 of Chapparadahalli and M.E.No.569 of

Chikkamorab village. Therefore, neither plaintiffs nor other

defendants had any right, title, interest over suit property.

 7

6. Defendant no.4 filed separate written statement

admitting plaint averments. Defendants no. 5 and 6 filed

memo adopting written statement of defendant no.4.

7. Based on pleadings, trial Court framed following

issues:

1. Whether the plaintiff proves, the suit properties

are joint ancestral properties of plaintiff and
defendants as contended?
2. Does he further proves, the defendant no.3 is
managing the suit property on behalf of all
family members?
3. Whether defendant no.1 to 3 prove, that in
1982 plaintiff by receiving cash and gold has
relinquished her right in the suit properties
as contended?
4. Whether plaintiff is entitled for partition?
5. What relief the parties are entitled?

8. Thereafter plaintiff examined herself as PW-1. She

also examined another witness as PW-2. Exhibits.P.1 to P.12

were marked. On behalf of defendants, defendant no.3

examined himself as DW-1 and defendant no.2 was examined

 8

as DW-2. Another witness was examined as DW-3. Exhibits

D.1 to D.11 were marked. On consideration, trial Court

answered issues no.1 to 5 in negative and dismissed suit.

Aggrieved thereby, plaintiff is in appeal.

9. Sri. G.N. Narasammanavar, Advocate, appearing for

Sri. Lokesh Malavalli, learned counsel for appellants contended

that plaintiff is daughter of propositus. Suit properties were

ancestral joint family properties of propositus. As there was no

prior partition, and defendants denied partition, plaintiff filed

suit for partition. In said suit, defendants 4, 5 and 6 admitted

plaint averments. While only defence set up by defendants

no.2 and 3 was prior partition during 1982. It was submitted

that propositus died on 24.07.1978. In order to substantiate

prior partition, documents produced were M.E.No.705 of

Chapparadahalli and M.E.No.569 of Chikkamorab. Learned

counsel contended that even when defendants failed to

produce any documents of prior partition, trial Court believed

their case and dismissed suit. It was submitted that plaintiffs

were entitled for equal share, when defendant failed to

 9

establish prior partition. It was submitted that mere

performance of marriage of daughters would not disentitle

them from seeking share in joint family property.

It was contended that impugned judgment and decree

was therefore contrary to law and evidence on record. It was

also contended that impugned judgment and decree was

perverse and capricious and consideration of evidence was

against established principles. As defendants admitted nature

of suit property as ancestral properties dismissal of suit was

not justified. Trial Court erred in not taking into consideration

deposition of DW-2, who stated that she was not aware of

plaint averments and affidavit. Absolutely no evidence was led

to substantiate contention that defendants had received gifts

from father. As there was no prior partition, dismissal of suit

would amount to denial of share of daughter, which would be

contrary to provisions of Hindu Succession Act. It was also

contended that there was no proper framing of issues. On

above grounds, learned counsel sought for allowing appeal,

 10

set aside impugned judgment and decree by granting relief

sought for.

10. On other hand, Sri. S.K. Kadadakatti, learned

counsel for defendants supported impugned award and

opposed appeal. It was submitted that suit for partition filed

by plaintiff was not maintainable in view of prior partition

which had taken place during 1982. It was submitted that

since parties herein were Hindus, even partition by way of

family settlement was permissible without insisting on

registration. It was submitted that prior partition was

substantiated in instant case by production of ‘Varadi’ given

after family settlement as per Exs.D.3 and D.9 and fact that it

was given effect to is evidenced by M.E.Nos.705 and 569

marked as Exs.D.10 and D.11 respectively. It was further

submitted that plaintiff had never questioned mutations and

was therefore estopped from contending contrary to them.

Learned counsel further submitted that DWs-2 and 3 had also

deposed in favour of defendants and on consideration, trial

 11

Court had arrived at a conclusion that there was prior partition

and on said finding suit was dismissed.

In support of his submissions learned counsel relied upon

decisions of Hon’ble Supreme Court in case of Digambar

Adhar Patil Vs. Devram Girdhar Patil reported in AIR

1995 SC 1728 and Ravinder Kaur Grewal and others Vs.

Manjit Kaur and others reported in (2020) 9 SCC 706.

11. From above, relationship of parties is not in dispute.

Nature of suit properties as ancestral joint family properties of

propositus Kenchappa is also not in dispute. While plaintiff

claims existence of joint family status in relation to suit

properties, defendants dispute same on ground of prior

partition.

12. In view of above contentions, following points arise

for my consideration:

1) Whether trial Court was justified in dismissing

suit for partition by holding that defendants had

established prior partition? and

 12

2) Whether judgment and decree passed by trial

Court calls for interference? If so, in what

manner?

13. Re.Point No.1:

Trial Court dealt with issues no.1, 3 and 4 regarding

subsistence of joint family status or its severance due to prior

partition. While plaintiff is claiming share in properties of her

father as a coparcener, defendants no.2 and 3 contend that by

virtue of family arrangement, plaintiff received cash of

Rs.1,00,000/-, 10 tolas of gold and other valuable properties

and relinquished her rights in favour of her brother defendant

no.3. Defendants no.4 to 6 support claim of plaintiff.

14. While dismissing suit, trial Court answered all issues

in negative. Issue no.1 cast burden of proving that suit

properties as joint ancestral properties of plaintiff and

defendants upon plaintiff. Whereas, issue no.3 required

defendants no.1 to 3 to prove that plaintiff had relinquished

her rights in suit properties during 1982 by receiving cash and

gold.
 13

15. In order to establish that suit properties continued

to be joint family properties of plaintiff and defendants,

plaintiff examined herself as PW-1. In examination-in-chief,

there is virtual reproduction of plaint averments. During cross-

examination, it is elicited that during 1970 propositus was

suffering from old age. As defendant no.3 was a minor at that

time, plaintiff and her husband moved from their native place

to Chapparadahalli. They looked after properties from 1970 to

1977. It was elicited that from out of income derived by

cultivating said lands they were maintaining family.

Suggestions that during lifetime of propositus i.e., during year

1977, plaintiff was given Rs.1,00,000/- in cash and gold in lieu

of her share in joint family properties and upon receiving

same, she had relinquished her share in joint family property

in favour of defendant no.3. It was also contended that

similarly other sisters had also relinquished their share in joint

family properties by receiving appropriate consideration. It

was elicited that in pursuance of ‘varadi’ given after family

 14

arrangement, had not been challenged by plaintiff by filing

appropriate appeal.

16. PW-2 deposed that earlier, plaintiff and defendants

were cultivating suit lands together. But since past six years it

was discontinued. Suggestions by defendant about prior

partition, relinquishment of share by sisters of plaintiff in

favour of defendant no.3 etc., were disputed. No material

admission was elicited from PW-2.

17. Documentary evidence produced by plaintiff are

Exs.P.1 to P.6 - record of rights , mutation entries - Exs.P.7 to

P.9, death certificate of plaintiff’s mother - Ex.P.10, property

Tax demand register extract - Exs.P.11 and P.12. Exs.P.1 to

P.6 disclose mutation of name in Column – 9 as due to

partition. Ex.P.10 substantiates death of wife of propositus;

while Exs.P.11 and P.12 disclose suit properties standing in

name of defendant no.3. Ex.P.8 would be relevant material

document of defendants, as it is defendants’ case that plaintiff

and other sisters had relinquished their rights. Contents of

 15

Ex.P.8 indicate that said mutation was in pursuance of a

‘varadi’, wherein it was stated that Kenchappa Hallappa

Kanchallar @ Banakar died on 24.07.1978. Thereafter

Thirakappa, S/o. Kenchappa and mother Basavva gave ‘varadi’

stating that daughters Parvathevva, Mahadevakka, Shantavva

had relinquished their rights in favour of defendant no.3 by

taking cash, gold and other valuables. However, same does

not disclose that varadi was given by plaintiff and sister. It

also does not state that plaintiff was issued with notice prior to

effecting mutation.

Hon’ble Supreme Court in case of Venigalla

Koteswaramma Vs. Malempati Suryambha & Ors.

reported in 2021(4) SCC 246, has held that in a suit for

partition, declaration about nullity or about alienation not

binding on plaintiff is not necessary.

18. Substantial contention urged by defendants was with

regard to prior partition, which is sought to be established on

the basis of record of rights, property tax extracts and

mutation entries. Defendant no.3 examined as DW-1 and

 16

stated that suit properties were not joint family properties as

joint family properties were divided under a family

arrangement, wherein plaintiff and other sisters had

relinquished their rights in suit property. During cross-

examination, it is elicited from DW-1 that suit properties were

ancestral joint family properties. While denying suggestions,

DW-1 states that plaintiff had signed a statement

acknowledging receipt of cash and gold in lieu of share in

property, but admitted that said document was not produced.

DW-2 – defendant no.6 also states suit properties were not

joint family properties, as there was partition among family

members and plaintiff and other sisters had relinquished their

rights in favour of defendant no.3. However, during cross-

examination DW-2 states that he was not aware of contents of

plaint. He also stated that he was not aware on whose

instructions his affidavit evidence in lieu of examination-in-

chief was filed. In view of said statement, deposition of DW-2

would not be helpful to plaintiffs.

 17

19. DW-3 is an independent witness. He also stated that

suit properties were not joint family properties, as there was

severance of joint family. It was stated that during 1977,

plaintiff had received a sum of Rs.1,00,000/- in cash and 10

tolas of gold and other valuable articles and had relinquished

her claim in suit property. Likewise, defendants no.1, 2 and 4

to 6 had also accepted money in lieu of their share in

property. In pursuance of relinquishment, partition was

effected during 1982. Thereafter defendant no.3 was in

exclusive possession and enjoying suit properties. During

cross-examination, it is elicited that DW-3 did not know exact

day or date on which cash and gold was given. Despite

asserting that he had seen plaintiff taking away cash and

jewellary, DW-3 was unable to state particulars of

denomination of currency notes.

20. Hon’ble Supreme Court in Vineeta Sharma Vs.

Rakesh Sharma reported in (2020) 9 SCC 1, has held as

under:
 18

133. The severance of status may take place from the

date of filing of a suit; however, a decree is necessary
for working out the results of the same, and there may
be a change of rights during the pendency of the suit
for allotting definite shares till final decree is passed.
There are cases in which partition can be reopened on
the ground of fraud or mistake, etc. or on certain
other permissible grounds. In appropriate cases, it can
be reopened at the instance of minor also.

134. The protection of rights of daughters as

coparcener is envisaged in the substituted Section 6 of
the 1956 Act recognises the partition brought about by
a decree of a court or effected by a registered
instrument. The partition so effected before 20-12-
2004 is saved..

134. The protection of rights of daughters as

coparcener is envisaged in the substituted Section 6 of
the 1956 Act recognises the partition brought about by
a decree of a court or effected by a registered
instrument. The partition so effected before 20-12-
2004 is saved.

136. The expression used in the Explanation to

Section 6(5) “partition effected by a decree of a court”
would mean giving of final effect to actual partition by
passing the final decree, only then it can be said that a
decree of a court effects partition. A preliminary
decree declares share but does not effect the actual
 19

partition, that is effected by passing of a final decree;

thus, statutory provisions are to be given full effect,
whether partition is actually carried out as per the
intendment of the Act is to be found out by the court.
Even if partition is supported by a registered
document it is necessary to prove that it had been
given effect to and acted upon and is not otherwise
sham or invalid or carried out by a final decree of a
court. In case partition, in fact, had been worked out
finally in toto as if it would have been carried out in
the same manner as if affected (sic effected) by a
decree of a court, it can be recognised, not otherwise.
A partition made by execution of deed duly registered
under the Registration Act, 1908, also refers to
completed event of partition not merely intendment to
separate, is to be borne in mind while dealing with the
special provisions of Section 6(5) conferring rights on
a daughter. There is a clear legislative departure with
respect to proof of partition which prevailed earlier;
thus, the court may recognise the other mode of
partition in exceptional cases based upon continuous
evidence for a long time in the shape of public
document not mere stray entries then only it would
not be in consonance with the spirit of the provisions
of Section 6(5) and its Explanation.

137. Resultantly, we answer the reference as

under:
 20

137.1. The provisions contained in substituted

Section 6 of the Hindu Succession Act, 1956 confer
status of coparcener on the daughter born before or
after the amendment in the same manner as son with
same rights and liabilities.

137.2. The rights can be claimed by the daughter

born earlier with effect from 9-9-2005 with savings as
provided in Section 6(1) as to the disposition or
alienation, partition or testamentary disposition which
had taken place before the 20th day of December,
2004.

137.3. Since the right in coparcenary is by birth, it is

not necessary that father coparcener should be living
as on 9-9-2005.

137.4. The statutory fiction of partition created by

the proviso to Section 6 of the Hindu Succession Act,
1956 as originally enacted did not bring about the
actual partition or disruption of coparcenary. The
fiction was only for the purpose of ascertaining share
of deceased coparcener when he was survived by a
female heir, of Class I as specified in the Schedule to
the 1956 Act or male relative of such female. The
provisions of the substituted Section 6 are required to
be given full effect. Notwithstanding that a preliminary
decree has been passed, the daughters are to be given
share in coparcenary equal to that of a son in pending
proceedings for final decree or in an appeal.
 21

137.5. In view of the rigour of provisions of the

Explanation to Section 6(5) of the 1956 Act, a plea of
oral partition cannot be accepted as the statutory
recognised mode of partition effected by a deed of
partition duly registered under the provisions of the
Registration Act, 1908 or effected by a decree of a
court. However, in exceptional cases where plea of
oral partition is supported by public documents and
partition is finally evinced in the same manner as if it
had been affected (sic effected) by a decree of a court,
it may be accepted. A plea of partition based on oral
evidence alone cannot be accepted and to be rejected
outrightly.

21. From above decision, it is clear that only in

exceptional cases where plea of oral partition is supported by

public documents and partition is finally effected in the same

manner as if it had been effected by a decree of Court may be

accepted otherwise plea of partition based on oral partition

alone is to be rejected outrightly. In instant case, it is

defendants no.1 to 3, who have set up defence of prior

partition. They have sought to substantiate same by producing

M.E.Nos.705 and 569, Exs.D.9 and D.11 respectively. Ex.D.9

is same as Ex.P.8. As noted above, same does not indicate

 22

that ‘varadi’ was given by plaintiff also. It states that ‘varadi’

was given by defendant no.3 along with his mother. Document

also does not indicate that plaintiff was notified before

effecting mutation. Mere failure to challenge mutation would

not be sufficient to deny plaintiff’s claim of share in joint

family property. Hon’ble Supreme Court in Vineeta Sharma’s

case (supra) has held that unless prior partition is established,

there shall be a presumption property being joint family

property.

22. Indeed, Hon’ble Supreme Court has held in

Digambar Adhar Patil’s case (supra) and Ravinder Kaur

Grewal’s case (supra) that a family arrangement in nature of

partition would not require it to be in writing and its

registration was not mandated, in view of larger Bench

decision in Vineeta Sharma’s case (supra), burden of

establishing family arrangement would be on the person

propounding same in same manner, as if it were partitioned

by a Court decree. Neither defendant nor witnesses were able

 23

to give particulars of prior partition such as date, time and

place.

23. In view of above discussion and legal position

availing from decisions referred, I am of the opinion that

judgment and decree passed by trial Court impugned herein

would be contrary to law. Point no.1 for consideration is

answered in favour of plaintiff/appellant.

24. Re.Point No.2:

While answering point no.1 above, it is held that finding

of trial Court regarding prior partition and dismissal of suit on

said ground are unsustainable in law. It is also held that suit

properties were joint family properties of plaintiff and

defendants. Insofar as apportionment of shares, it is seen that

admittedly propositus Kenchappa had four children namely,

Parvatevva, Mahadevakka, Shantavva and Tirakappa. His wife

Basavva had also survived him. One of daughters Parvatevva

had died leaving behind defendants no.4 to 6 namely

 24

Anandavva, Renukavva and Shantavva respectively. As parties

are from Bombay-Karnataka area, even wife of coparcener

would be entitled to a share equal to that of son. By virtue of

amendment to Section 6 of Hindu Succession Act daughters

are rendered on par with sons. Therefore, all children and wife

of propositus would entitle for equal shares in suit properties.

Hence, point no.2 is answered by holding that plaintiff,

defendants no.1, 2 and 3 and defendants no.4 to 6 together,

would be entitled to 1/5th share each in suit properties i.e.,

defendants no.4 to 6 would be entitled to 1/15th share each,

out of 1/5th share of their mother-deceased Parvatevva. Point

no.2 is answered accordingly.

25. Hence, I pass the following:

ORDER

Appeal is allowed. Judgment and decree dated

23.02.2006 passed by Civil Judge (Sr.Dn.)and Prl. JMFC at

Ranebennur, in O.S.No.76/1996 is set aside and

 25

O.S.No.76/1996 is decreed with cost. Plaintiff, defendants

no.1, 2 and 3 would be entitled to 1/5th share each;

defendants no.4 to 6 would be entitled to 1/15th share each in

suit properties.

Sd/-
JUDGE

BVK