SRI RANGANATHA REDDY vs SMT C V VANI
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 28 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
REGULAR SECOND APPEAL NO. 973 OF 2014 (PAR)
BETWEEN:
SRI RANGANATHA REDDY
AGED ABOUT 42 YEARS,
S/O CHIKKA NARASAPPA,
R/O ARIKUNTE VILLAGE,
RONNUR HOBLI,
SRINIVASPUR TALUK - 562 123.
…APPELLANT
(BY SRI. SHANKAR REDDY C., ADVOCATE)
AND:
1. SMT C V VANI
AGED ABOUT 35 YEARS,
W/O T.C.SHANTHE GOWDA,
R/O THIMMASANDRA VILLAGE,
LAKKANDAHALLI HALLI POST,
HOSAKOTE TALUK - 571 232.
BENGALURU RURAL DISTRICT.
2. SMT. NANDINI @ BHARATHI
AGED ABOUT 37 YEARS,
W/O SRI.R.RAVINDRA,
MANAGER, SANSESHRA ENGINEERING PVT LTD.,
PLOT NO.18, SECTOR 9, 11 E,
PANTHNAGAR, UDHAM,
SINGH NAGAR DISTRICT- 263 153.
3. SMT. SUNANDAMMA
AGED ABOUT 60 YEARS,
W/O LATE VENKATAPATHY,
4. SRI.C.V. MANJUNATHA
AGED ABOUT 35 YEARS,
S/O LATE VENKATAPATHY,
Digitally
signed by
VANDANA S
Location:
High Court
of Karnataka
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THE R-3 AND R-4 ARE
RESIDING AT CHOWDAREDDY PALYA,
CHINTAMANI TOWN,
CHIKKABALLAPURA DISTRICT-562 123.
…RESPONDENTS
(BY SRI. PRITHVIRAJ SHASTRY.G, ADVOCATE FOR C/R-1
R-2 & R-3-SERVED
VIDE ORDER DATED: 07.08.2024, NOTICE TO R-4 IS H/S)
THIS RSA IS FILED UNDER SEC.100 R/W ORDER XLI RULE 1 OF
THE CPC., AGAINST THE JUDGMENT AND DECREE DATED 04.06.2014
PASSED IN R.A.NO.101/2012 ON THE FILE OF III ADDL. SENIOR CIVIL
JUDGE, KOLAR, ALLOWING THE JUDGMENT AND DECREE DATED
13.04.2012 PASSED IN O.S.NO.236/2008 ON THE FILE OF PRL. CIVIL
JUDGE & JMRC., SRINIVASPUR.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL JUDGMENT
The appellant was defendant No.1 in O.S.No.236/2008 filed
by respondent Nos.1 and 2-plaintiffs against the appellant-
defendant No.1 and respondent Nos.3 and 4 - defendant Nos.2
and 3 for partition and separate possession of their alleged share in
the suit schedule properties and for other reliefs. The said suit
having been contested by the defendants including the appellant-
defendant No.1, the Trial Court proceeded to pass the impugned
judgment and decree dated 13.04.2012 dismissing the suit in
O.S.No.236/2008 filed by respondent Nos.1 and 2-plaintiffs, who
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preferred an appeal in R.A.No.101/2012, which was allowed by the
First Appellate Court vide impugned judgment and decree dated
04.06.2014, whereby the First Appellate Court set aside the
judgment of the Trial Court and decreed the suit filed by
respondent Nos.1 and 2 -plaintiff against the appellant -defendant
No.1 and other defendants. Aggrieved by the impugned judgment
and decree dated 04.062014 passed by the First Appellate Court,
the appellant-defendant No.1 is before this Court by way of the
present appeal.
2. The present appeal was admitted on 12.02.2017 to
consider the following substantial questions of law:
"(i) Whether the lower appellate Court is justified in reversing
the judgment and decree of the Trial Court, when the trial
Court recorded a specific finding that the suit filed by the
plaintiff for partial partition is not maintainable?
(ii) Whether the lower appellate Court is justified in reversing
the judgment and decree of the Trial Court assuming that
nd
all other properties held in the name of 2
defendant/mother of the plaintiffs are self acquired
properties in the absence of any material on record?
(iii) Whether the lower appellate Court is justified in reversing
the judgment and decree of the Trial Court in the facts
and circumstances of the present case?”
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3. Heard learned counsel for the appellant and learned
counsel for respondent No.1 and perused the perused the material
on record.
4. Respondent No.2-plaintiff No.2 as well as respondent
No.3-defendant No.2 have been served with notice of the present
appeal and have chosen to remain unrepresented. So also,
respondent No.4-defendant No.3 has refused to receive Court
notice and hence, service of notice to respondent No.4-defendant
No.3 has been held to be sufficient. Under these circumstances,
with the consent of the learned counsel for the appellant and
learned counsel for respondent No.1, the matter is taken up for
final disposal.
Re. Substantial Questions of Law No.1 to 3:
5. A perusal of the material on record will indicate that the
plaintiffs are the children of late Venkatapathi, whose wife is
defendant No.2, Sunandamma and her son is defendant No.3, C.V.
Manjunatha. The appellant-defendant No.1 claims to be the
purchaser of the suit schedule property from defendants Nos.2 and
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3. Pursuant to the pleadings of the parties, the Trial Court framed
the following issues and additional issues:
“(i) Whether the plaintiffs prove that the properties mentioned
in the schedule of the suit are the ancestral properties of
plaintiffs and defendant No.2 and 3? And are available
for partition?
(ii) Whether plaintiffs prove that the registered Gift Deed
nd
dated 1.7.2006 executed by 2 defendant is null and
void? And not binds up on the plaintiffs?
st
(iii) Whether the plaintiffs further prove that the 1 defendant
had no right to purchase the suit schedule property by
defendant No.2?
th
(iv) Whether the plaintiffs are entitled to get 1/4 each share
in all the suit properties?
(v) Whether the plaintiffs are entitled for the relief as claimed
in the prayer column of the suit?
(vi) To what order or decree the parties are entitle?
Addl. Issue No.1:
Whether the suit of the plaintiff is bad for partial
partition?”
6. Plaintiff No.1 examined herself as PW-1 and two
witnesses as PWs-2 and 3 were examined on her behalf and
documentary evidence at Exs.P-1 to P-4 were marked. Defendant
No.1 was examined as DW-1 and three witnesses as DWs-2 to 4
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were examined on his behalf and documentary evidence at Exs.D-
1 to D29 were marked.
7. After hearing the parties, the Trial Court came to the
conclusion that the suit schedule properties were not joint family
properties as alleged by the plaintiffs and that the Gift Deed dated
01.07.2006 executed by defendant No.2 in favour of defendant
No.3 was a valid and legal document and consequently, the sale
deed dated 23.05.2007 executed by defendant No.3 in favour of
the appellant-defendant No.1 was also a valid document and
proceeded to reject the claim of the plaintiffs. The Trial Court also
came to the conclusion that having regard to the material on record
which indicated that there were other alleged joint family properties,
which had not been included as properties to the suit, a suit for
partial partition without including all alleged joint family properties
was not maintainable and the suit was liable to be dismissed and
accordingly the, Trial Court proceeded to dismiss the suit of the
plaintiffs by holding as under:
" "The plaintiffs have filed this suit against the
defendants No.1 to 3 for Partition and Separate Possession
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for plaintiffs’ 1/4 the share in the suit schedule properties by
meets and bounds and court cost.
2. In brief case of the plaintiffs are as follows:
The plaintiffs are the daughters of the 2nd defendant,
the 3rd defendant is the son of 2nd defendant. The plaintiffs,
defendants No.2 and 3 have constitute Hindu undivided joint
family. The father of the plaintiffs died on 10-12-1994 leaving
behind him the plaintiffs and the defendants No.2 and 3 as
his legal heirs who are entitled to succeed the plaint
schedule properties. The suit properties and other properties
were the joint family properties of husband of 2nd defendant
and other his brothers. In a family partition, the suit
properties fell to the share of plaintiffs and the defendant
No.2 and 3. The said partition was effected under registered
partition deed dated 1-9-2005. The 2nd defendant being the
eldest member of the family obtained to the said properties
under the registered partition deed on behalf of her children.
From the said registered partition deed the plaintiffs are in
joint possession and enjoyment of the suit properties along
with defendants No.2 and 3. The 3rd defendant had filed a
suit before the Civil Judge (Sr.Dn.) Chinthamani which was
numbered as O.S.No.119/2006 for the relief of partition in
respect of the self acquired properties of the 2nd defendant
against the plaintiffs and others without including the suit
properties. The plaintiffs learnt that the defendants No.2 and
3 without consent and knowledge of the plaintiffs’ created
one gift deed dated 1-7-2006 in respect of suit properties.
The 2nd defendant had gifted the suit properties in favour of
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the 3rd defendant by misusing the said invalid void gift deed
the 3rd defendant executed a nominal sale deed in favour of
the 1st defendant. The gift deed and the sale deed is void
ab-initio under law and no rights will be flown under the said
invalid documents either in favour of 3rd defendant or in
favour of the 1st defendant. The plaintiffs approached and
requested them for their share in the suit properties but they
have protracted the time. But ultimately refused to they give
any share to the plaintiffs. The suit properties are the
ancestral and joint family properties of the plaintiffs and
defendants No.2 and 3. The 1st defendant has no right to
purchase the suit the suit properties from the 3rd defendant.
The 3rd defendant who is vagabond and drunkard addicted
to all sorts of bad habits. The sale deed of the plaintiffs has
no value in the eye of law and not binding on the share of
the plaintiffs. Hence, the cause of action was arose for the
plaintiffs to file the suit. Accordingly, prayed to decree the
suit with costs.
3. On service of suit summons to the defendants,
defendants No.2 & 3 have not appeared, hence they
have placed ex-parte, the defendant No.1 has appeared
through his counsel and filed written statement as
hereunder:-
The plaint averments have been denied by the
defendants. It is stated that the 1st defendant is the absolute
owner in peaceful possession and enjoyment over the suit
property. He has acquired the same under registered sale
deed dated 18-9-2006. After purchase the suit properties he
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made an application before the Tahsildar of Srinivaspur for
change of katha and change accordingly. The 1st defendant
is paying taxes to the Government up to date. Prior to
registered sale deed the suit properties were belonging to
the ancestors of 1st defendant. The 1st defendant’s father
and plaintiffs’ father along with other two brothers have
divided their ancestral properties and also joint family
properties including the suit properties under the registered
partition deed dated 1-9-2005 on the same day the A-
schedule properties was fallen to the share of the father of
defendants, B-schedule properties was fallen to the share of
Laxminarayanappa, C schedule properties was fallen to the
share of 2nd defendant on behalf of the plaintiffs and 3rd
defendant and D-schedule properties was fallen to the share
of one Narayanaswamy. After registered partition deed, the
1st defendant’s father and other co-owners were enjoying
the respective shares. On the basis of the registered partition
deed, the suit properties were enjoyed the 3rd defendant
with consent of the 2nd defendant. After the registered
partition deed the 2nd defendant executed a registered gift
deed in favour of 3rd defendant on 1-7-2006 with consent of
the plaintiffs. After the registered gift deed executed by the
2nd defendant, she lost right, title and much less possession
over the suit properties. As per the gift deed, the katha and
pahani were changed in the name of the 3rd defendant. He
became the absolute owner and he was in peaceful
possession and enjoyment over the same. As such he has
executed a registered sale deed in favour of 1st defendant
on 18-9-2006. The 3rd defendant had every right to sell the
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suit property in favour of the 1st defendant. The plaintiffs nor
the 2nd defendant have not questioned the registered gift
deed dated 1-7-2006 at any point of time till today. The
plaintiffs and defendants No.2 and 3 have colluded with each
other and the present suit to the knock off the valuable
properties. The plaintiff No.2 was married 10 yeas back i.e.,
prior to registered partition deed dated 1-9-2005. After her
marriage she resided permanently at her husband’s house at
Punjab. This shows that the plaintiffs is not the joint family
members and she is not in joint possession of the suit
properties. The 2nd defendant had executed a registered
gift deed in favour of plaintiffs No.1 and 2 dated 27-3-2006 in
respect of the properties situated at Chinthamani town. The
2nd defendant had executed another registered gift deed in
favour of 1st plaintiff dated 27-3- 2006 in respect of the
properties situated at Chinthamani. The 2nd defendant had
got some other properties bearing katha No.1307/A
measuring East-West 30 feet at Chowdareddy Palya, 1st
Division, Chinthamani town including four houses, the above
said respective property was not included in this suit and
also the above said house properties are katha and Demand
Register Extract was standing in the name of 2nd defendant
till today in this regard clearly shows that the plaintiffs
intentionally to left the above properties. The same is
acquired by the 2nd defendant under registered sale deed
dated 12-12-1989 out of joint family funds. Those properties
are also joint family properties of the 2nd defendant’s family.
The 2nd defendant is got another property bearing MLK
No.old 4589 site No.11, New No.5877/5451, Site No.11
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measuring East-West towards northern side 42 feet towards
southern side 40 feet the property is situated at Ooo. To
KSRTC bus depo, Bangalaore Road, Chinthamani town, the
same is acquired by the 2nd defendant under registered
sale deed dated 30-5-1992 out of the joint family funds. The
same is sold the 2nd defendant in favour of one
SriG.Krishnegowda S/o.Gopal Gowda of Velagalburri village.
At the time of registered sale deed the 3rd defendant is not
party registered sale deed. The 2nd defendant is also
obtained another properties bearing Municipal Katha
No.5876/5450, Site No.10 measuring East-West 40 feet and
North-South 45 feet the same is acquired by the 2nd
defendant under registered sale deed dated 30- 5-1992 for
valuable sale consideration out of the joint family funds, the
same is sold by the 2nd defendant in favour of one
Nagarathnamma W/o.V.Chowdareddy of Mindigal Magara
Nallarallahalli, Chinthamani town and one Rathnamma
W/o.V.Narayanaswamy of Mandigal Majara Nallarallahalli,
Chinthamani Taluk. The above said property was not
included in this suit and 3rd defendant is not included in the
above said registered sale deed the sale deed is not binding
on 3rd defendant
4. The 2nd defendant has got another more property
land bearing sy.No.47/1 measuring 1 acre 19 guntas out of
which 35 guntas of Gopasandra village, Kasaba Hobli,
Chinthamani taluk, the same is acquired by the 2nd
defendant under registered sale deed dated 23-5-2007 out
of the joint family funds. Again the 2nd defenatn is sold the
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above property in favour of one G.v.Srinivasaiah Setty
S/o.Girinatha settee of R.K.Extension, Chinthamani Town in
this regard the 3rd defendant is not party to the above
registered sale deed, those properties are not included in
this suit. The 2nd defendant is got another property Town
Municipal katha No.3225/78 and new katha No.238/227
measuring East-West 58 feet and North-South 12 ¾ feet,
vacant site and building the same is situated at
Chowdareddy Palya, 2nd Ward, Chinthamani town is
acquired by the 2nd defendant under registered sale deed
dated 23-5-2007 for valuable sale consideration out of the
joint family funds. The same is sold by the 1st plaintiff and
2nd defendant in favour of one N.Venkataravanaswamy
S/o.Lakshminarayanappa and one K.G.Varalakshmi
W/o.N.Venkataravanaswamy of Chowdareddy Palya, 2nd
Ward, Chinthamani town under registered sale deed dated
7-11-2007. In this regard the 3rd defendant is not party
above registered sale deed. The above said properties were
not included in this suit for reference. The 2nd defendant is
got another property bearing Sy.No.92 measuring 2 acres 9
guntas out of which 1 acre, situated at Kurutapalli village,
Chinthamani taluk, the same is acquired by the 2nd
defendant under registered sale deed dated 18-8-2008 for
valuable sale consideration of joint family funds. The same is
enjoying the plaintiffs and 2nd defendant till today. The
above said property was not included in this suit.
5. The plaintiffs have not questioned the registered
sale deeds above shows that the plaintiffs and the
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defendants No.2 and 3 are not in joint possession of the suit
property. O.S.No.119/2006 filed by the 2nd defendant at
Chinthamani court was with drawn the suit. The plaintiffs
have not approached this court with clean hands. Hence,
prayed for dismissal of the suit with costs.
6. On the basis of the above pleadings my
predecessor in Office has framed the following issues and
this court has framed the Addl. Issue;
(i) Whether the plaintiffs prove that the
properties mentioned in the schedule of the suit
are the ancestral properties of plaintiffs and
defendant No.2 and 3? and are available for
partition?
(ii) Whether plaintiffs prove that the
registered Gift Deed dated 1-7-2006 executed by
2nd defendant is null and void? And not binds up
on the plaintiffs?
(iii) Whether the plaintiffs further prove that
the 1st defendant had no right to purchase the suit
schedule property by defendant No.2?
(iv) Whether the plaintiffs are entitle to get
1/4 th each share in all the suit properties?
(v) Whether the plaintiffs are entitled for the
relief as claimed in the prayer column of the suit?
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Addl.Issue No.1: Whether the suit of the
plaintiff is bad for partial partition?
(vi) To What order or decree the parties are
entitle?
7. On the side of the plaintiffs, the plaintiff No.1
examined herself as PW.1 and 2 witnesses as PW.2 & 3 and
got marked Ex.P.1 to P.4 documents. On the side of the
defendants, the defendant No.1 examined himself as DW.1
and 3 witnesses as Dw.2 to 4 got marked Ex.D.1 to 29
documents and closed their side.
8. Heard arguments on both sides.
9. On the basis of the evidence available on record,
my findings on the above issues are as follows:
Issue No.1 : In the NEGATIVE
Issue No.2 : In the NEGATIVE
Issue No.3 : In the NEGATIVE
Issue No.4 : In the NEGATIVE
Issue No.5 : In the NEGATIVE
Addl. Issue No.1: In the AFFIRMATIVE
Issue No.6 : As per the final order, for the following:
R E A S O N S
10. Issue No.1 to 5 & Addl. Issue No.1:- As all the
issues require discussion about the facts and circumstances
of the case, in order to avoid repetition and facts, all the
issues are taken up together for discussion.
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The plaintiffs and the defendant No.3 are the children
of 2nd defendant is not in dispute. The plaintiffs have filed
this suit for seeking 1/4 th share each contending that the
suit properties are the ancestral properties and joint family
properties amongst the plaintiffs and defendants No.2 and 3.
According to the plaintiffs in registered partition deed
dated 1-9-2005 the suit property was allotted to the share of
2nd defendant. The 2nd defendant has represented the
plaintiffs and 3rd defendant as their father died prior to the
said partition deed. The said registered partition deed is
marked as Ex.P.1. As per this partition,
Lakshminarayanappa, Narayanaswamy, Chikka Nareppa
and defendant No.2 were parties. The husband of the 2nd
defendant was direct brother of Chikka Nareppa,
Lakshminarayanappa and Narayanaswamy. The 1st
defendant is the son of Chikka Nareppa. As per Ex.P.1 the
suit properties were fallen to the share of 2nd defendant.
According to the plaintiffs, the 3rd defendant was addicted to
bad habits and alcohol. According to the plaintiffs, their
mother had no right to execute the gift deed dated 1-7-2006.
Similarly, the 3rd defendant had no right to execute the sale
deed in favour of the 1st defendant on 18-9-2006. The
certified copy of the same is marked as Ex.D.1 originally
marked as Ex.D.17. Based on the said registered sale deed,
Mutation was accepted in the name of the 1st defendant as
per Ex.D.18. As per Ex.D.19 i.e., RTC is standing in the
name of the 1st defendant. In the plaint, the plaintiffs have
pleaded that both the gift deed dated 1-7-2006 and
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registered sale deed dated 18-9-2006 is not binding on
them. Accordingly, sought for 1/4th share.
11. The defendants No.2 and 3 have not appeared
before this court and not have filed any written statement.
The 1st defendant has filed written statement and contended
that in view of registered gift deed executed by the 2nd
defendant in favour of 3rd defendant, the 3rd defendant
become the absolute owner of the suit property. Accordingly,
he had executed Ex.D.17 for his necessity. According to the
1st defendant, defendant No.2 had sold several properties
situated at Chinthamani and they are not questioned by the
plaintiffs. In fact 2nd defendant had also two registered gift
deeds in favour of the plaintiffs. The said properties are not
included in the present suit. Therefore, the suit is bad for
partial partition.
12. The start with except contending that the
registered gift deed dated 1-7-2006 and the registered sale
deed dated 18-9-2006 are not binding on them, but they
have not produced the said documents in their evidence.
They have simply contended that the said deeds are not
binding on the m. It is true that in a suit for partition and
separate possession, there is no necessity to seek for cancel
of the above documents. But the plaintiffs are expected to
produce the said documents. The 1st plaintiff is examined as
PW.1. She admits that after the death of her father it was
2nd defendant who was managing the suit properties. She
admits that her father died in the year 1994. She admits that
she is residing at Chinthamani. She admits that there are
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number of properties belong to her family at Chinthamani.
She further stated that they are good number of sites at
Chinthamani and they are not included in the present suit.
According to PW.1 all those properties are self- acquired
properties of 2nd defendant. She admits that the various
execution made by her mother in favour of 3rd parties. She
further admits that her mother had executed a registered gift
deed in respect of site properties. Further she admits that
her mother executed a registered gift deed in favour of 2nd
plaintiff. The only answer of PW.1 is that they are all the self-
acquired properties of her mother and she had right to deal
with the same. She admits that property was purchased in
the name of her mother on 30-5- 1992. She further admits
that her mother had also purchased some properties on 22-
5-2007. But she claims ignorance about her mother selling
properties in favour of 3rd parties. Admittedly, the husband
of 2nd defendant died in the year 1994. As per Ex.P.1 the
registered partition deed it is recited that the parties to the
said deed have divided their family properties orally 30 years
back and in the memorandum of such an oral partition deed
was registered on 1-9- 2005. Therefore, it can be inferred
that the husband of 2nd defendant had acquired some
properties in the name of 2nd defendant.
13. It has further come in the evidence that there a
wine shop in the name of her mother. The plaintiffs have not
produced any documents to show that their mother had
individual income to purchase several properties. No
evidence is adduced to show that her mother had income to
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purchased properties. Therefore, it can be inferred that all
the properties were joint family properties. But the plaintiffs
have not challenged the said alienation at any point of time.
The sale effected by her mother are not even questioned in
the present suit. Therefore, the suit of the plaintiffs is not
maintainable for partial partition.
14. PW.1 at page-7 has deposed as follows: “ ... £À£Àß
vÁ¬Ä ¢: 27.03.2026 gÀAzÀÄ 3£Éà ¥ÀæwªÁ¢ ªÀÄvÀÄÛ £À£Àß ºÉ¸ÀjUÉ MAzÀÄ zÁ£À ¥ÀvÀæªÀ£ÀÄß
§gɹgÀÄvÁÛgÉ JAzÀgÉ ¸Àj."
She further admits that her mother had also executed
another gift deed in her name. She further admits that the gift
deed executed in favour of 2nd plaintiff by her mother in the
year 2006. But she claims ignorance about the gift deed
executed by her mother in favour of 3rd defendant on 1-7-
2006. This is the evidence given by PW.1 in cross-
examination at page-7 8 th line has deposed as follows:
“ ... ¢: 18.09.2006 gÀAzÀÄ zÁªÁ D¹ÛUÀ¼À£ÀÄß 1£Éà ¥ÀæwªÁ¢AiÀÄÄ ¥ÀæwªÁ¢ 2
ªÀÄvÀÄÛ 3 gÀªÀjAzÀ £ÉÆAzÁ¬ÄvÀ PÀæAiÀÄ¥ÀvÀæzÀrAiÀÄ°è Rjâ ªÀiÁrgÀÄvÁÛgÉ JAzÀgÉ ¸ÁQëAiÀÄ D
§UÉÎ £À£ÀUÉ UÉÆwÛ®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. F jÃw Rjâ ªÀiÁqÀzÀ £ÀAvÀgÀ zÁªÁ D¹ÛUÀ¼À£ÀÄß
1£Éà ¥ÀæwªÁ¢AiÀĪÀgÀÄ C£ÀĨsÀ«¸ÀÄwÛzÁÝgÉ JAzÀgÉ UÉÆwÛ®è...."
In the cross-examination of PW.1 she claims
ignorance about the sale deed executed by the 3rd
defendant in favour of 1st defendant. She further claims
ignorance of possession of 1st defendant over the suit
properties. She does not know that the katha is standing in
the name of 1st defendant. She claims ignorance about her
mother executing gift deed in favour of her brother on 1-7-
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2006. PW.1 being the partition to the suit cannot claim
ignorance about these facts. She ought to have denied those
suggestion emphatically. The very PW.1 who is party to the
suit claims ignorance about the gift deed and sale deed. The
said documents were not marked on the side of the plaintiffs.
In view of this evidence given by PW.1 this court is of opinion
that the plaintiffs are not entitled for any relief in the present
suit. Again she admits that the 3rd defendant filed in
O.S.No.119/2006 against them and their mother for partition
and separate possession at Chinthamani court. At page-8, 4
th line has deposed as follows:
“ .. £ÀAvÀgÀ £ÁªÉ¯Áè ¸ÉÃj EvÀåxÀð ªÀiÁrPÉÆAqÀÄ £ÀAvÀgÀ £ÀªÀÄä CtÚ ¸ÀzÀj PÉøÀ£ÀÄß
ªÁ¥À¸ÀÄì ¥ÀqÉ¢gÀÄvÁÛgÉ JAzÀgÉ ¸Àj..."
Therefore, the contention of the plaintiffs in this plaint
that in the said suit, the suit properties were intentionally left
out by the 3rd defendant cannot be accepted. The plaintiffs
were also parties to the said suit. They had very opportunity
to implead the suit properties in the said suit. But she admits
that the said suit was emphatically settled. Therefore, it
appears to this court that the present suit is a conclusive suit
between the plaintiffs and defendants No.2 and 3.
15. It may be for this reason the defendants No.2 and
3 have not filed their written statement and have not
contested the suit. The plaintiffs have made serious
allegation against the defendants No.2 and 3, but they have
remained silent. It goes to show that with an intention to
harass the 1st defendant the present suit filed. Again the 2nd
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defendant being the manager of the family consists of the
plaintiffs and 3rd defendant had thought of disposing of
properties by way of gift deed. This court already opined that
the suit properties and other properties none-included
properties or joint family properties. Therefore, being the
manager of 2nd defendant had executed a gift deed in
favour of 3rd defendant on 1- 7-2006. She had not opposed
the said gift. Therefore, the plaintiffs are not permitted to
question Ex.D.17. PW.2 & 3 were examined to establish that
the plaintiffs and defendants No.2 and 3 are in joint
possession of the suit properties which is found to be false
as could be seen from Ex.D.17 to 19. The 1st defendant
examined as DW.1. The entire case of the plaintiffs was
suggested and the same was denied. The 1st defendant
examined witnesses to the sale deed which is marked as
Ex.D.17 which is not required. Because according to the
plaintiffs, 2nd defendant had no right to execute the
registered the gift deed in favour of 3rd defendant and in turn
the 3rd defendant had no right to execute the sale deed in
favour of 1st defendant. Therefore, impliedly execution of
those documents are admitted by the plaintiffs.
16. The counsel for the plaintiffs has relied upon the
following citations:
1) ILR 1988 KAR-2348 in between Shankarayya
V/s.Champabai.
2) ILR 1999 KAR-3129 in between Babu Mother
Savava Navalgund & others V/s. Gopinath.
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3) ILR 1998 KAR-2127 in between Vadde Sanna
Hulugappa & others V/s.Vadde Sanna Hulugappa
& others.
4) AIR 1992 MADHYA PRADESH-208 in between
Kanji S/o.Ganesh, Appellant V/s.Parmanand,
Respondent.
5) 2009 AIR SCW-4471 in between Gangamma etc.
V/s. G.Nagarathnamma & others etc.
6) ILR 1994 KAR-1282 in between Mangala V/s.
Jayabai.
7) AIR 1995 KAR- 35 in between The Vijaya College
Trust, Appellant V/s. The Kumta Co-Operative
Arecanut Sales Society Limited and another,
Respondents.
8) AIR 1993 KAR- 12 in between Meenakshamma,
petitioner V/s. M.C.Nanjundappa & others,
respondents.
This court has gone through all the above citations but
the same are not applicable to the facts and circumstances
of the case on hand. In the result, Issue No.1 to 5 are
answered in NEGATIVE and Addl. Issue No.1 is answered in
AFFIRMATIVE.
17. Issue No.6:- For the aforesaid reason and
discussion, I proceed to pass the following:
O R D E R
1. Suit of the plaintiffs is hereby dismissed.
2. No order as to cost.
3. Draw up decree accordingly."
8. However, the First Appellate Court reversed the
judgment and decree of the Trial Court by holding that the suit
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schedule properties were joint family properties in which the
plaintiffs were entitled to a share by answering the points for
consideration in favour of the plaintiffs. The First Appellate Court
also came to the conclusion that the additional properties which
were not included as suit schedule properties were the separate
and self-acquired properties of defendant No.2, who had not even
filed a written statement nor contested the suit in this regard. Under
these circumstances, the First Appellate Court proceeded to
decree the suit by setting aside the judgment and decree of the
Trial Court and decreed the suit of the plaintiffs by holding as
under:
"11. The points that arise for consideration are;
1. Whether the finding of the trial Court that the
properties acquired by the defendant No.2 are
joint family properties is erroneous?
2. Whether the suit is bad for partial partition?
3. Whether the plaintiffs are entitled for share in
the suit schedule properties as prayed?
4. Whether the judgment and decree of the trial
Court needs interference?
5. To what relief and decree the parties are
entitled for?
12. The findings on the above Points are as follows:-
Points No.1, 3 & 4 - In the affirmative.
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Point No.2 - In the negative.
Point No.5 - As per the final order, for the
following:-
R E A S O N S
13. Points No.1 to 4 :- These points taken up together
for discussion in order to avoid the repetition of facts.
14. Admitted facts are that the plaintiffs and defendant
No.3 are the children of Sunandamma the defendant No.2.
Father of the plaintiffs and the defendant No.3 Venkatapathy
died on 10.12.1994. There was partition amongst the
brothers of Venkatapathy and the defendant No.2 and the
joint family properties were divided under registered partition
deed dated 01.09.2005. The suit schedule properties are the
properties allotted to the share of defendant No.2 for and on
behalf of the plaintiffs and defendant No.3 being the share of
deceased Venkatapathy. The defendant No.1 is the
purchaser of suit schedule properties from the defendant
No.3, who is the son of Chikka Nareppa the brother of
Venkatapathy.
15. The plaintiff No.1 has been examined as PW-1.
The plaintiffs have produced the certified copy of the partition
deed as per Ex.P.1. Ex.P.1 discloses that the division has
taken place in between Chikka Nareppa,
Lakshminarayanappa, Sunandamma the defendant No.2
who is the wife of Late.Venkatapathy and Narayanaswamy
and the family properties are divided into 4 shares as per A,
B, C and D schedules. ‘C’ Schedule is the property allotted
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to the defendant No.2. 3 items of properties are allotted to
defendant No.2 which are the suit schedule properties. The
plaintiffs have also produced the RTC extracts as per
Exs.P.2 to 4 and the properties stands in the name of the
sharers under Ex.P.1. According to the plaintiffs after the
partition as per Ex.P.1, the defendant No.2 executed gift
deed in favour of defendant No.3 in respect of the suit
schedule properties dated 01.07.2006. The plaintiffs have
not produced the copy of the said gift deed. However, the
defendant No.1 has produced the certified copy of the gift
deed as per Ex.D.2. Based on the gift deed executed by
defendant No.2, the defendant No.3 has sold the suit
schedule properties in favour of defendant No.1 by
registered sale deed dated 18.09.2006 as per Ex.D.1. The
plaintiffs contend that these documents are executed by
defendants No.2 and 3 without the consent of the plaintiffs
and the suit properties being the joint family properties they
are entitled for a share in the schedule properties. It is the
contention of the defendant No.1 that, defendant No.2
owned several other properties at Chintamani and has also
gifted some of the properties in favour of the plaintiffs and
without including those properties, the suit has been filed by
the plaintiffs and hence, the suit is bad for partial partition.
Further defendant No.2 acquired the said properties out of
the joint family funds. Therefore, those properties mentioned
in the written statement are also joint family properties.
16. Defendant No.1 has produced the gift deed
executed by the defendant No.2 in favour of plaintiff No.1 as
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per Ex.D.3 and rectification deed as per Ex.D.4 in respect of
property bearing Municipal katha bearing No.2999/1/2827/7
measuring 8.6 X 27 feet. Defendant No.2 has also executed
gift deed dated 27.03.2006 in favour of plaintiff No.2 as per
Ex.D.5 in respect of property bearing Municipal katha
No.3001/2828/1 measuring 11.8 X 30 feet situate at
Chintamani. Ex.D.6 is the certified copy of the sale deed
executed by defendant No.2 in favour of G.Krishnegowda in
respect of vacant site situate at Chintamani. Ex.D.7 is the
certified copy of the sale deed executed by defendant No.2
and plaintiff No.1 in favour of Venkatamuniswamy and
K.G.Varalakshmi in respect of site with house building
situate at Chintamani. Ex.D.8 is the certified copy of the sale
deed executed by defendant No.2 in favour of
G.V.Srinivasashetty in respect of Sy.No.47/1 measuring 1
acre 22 guntas situate at Chintamani. Ex.D.9 is the sale
deed in favour of defendant No.2 executed by
K.Shanthamma and Srinivasa Reddy in respect of Sy.No.92
measuring 1 acre situate in Chintamani. Ex.D.10 is the
certified copy of the sale deed in favour of defendant No.2
executed by V.Jayaramappa dated 12.10.1999. Ex.D.11 is
the certified copy of the sale deed executed by defendant
No.2 in favour of Nagarathnamma. Ex.D.13 is the certified
copy of the sale agreement executed by defendant No.2 in
favour of K.R.Rama Reddy. None of these documents
disclose that the properties mentioned under those
documents are the joint family properties of defendants No.2
and 3 and the plaintiffs or that the same are acquired by
defendant No.2 out of the joint family funds. Sale deeds
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disclose that those properties alienated by defendant No.2
are the properties purchased by her. Defendant No.1 having
contended that the defendant No.2 purchased the properties
under various sale deeds and sold the same to various
persons as contended in the written statement has not
produced any documents to prove the income out of the suit
schedule properties or the source of income for purchase of
the properties. PW-1 has categorically stated that the
properties situate at Chintamani are the self acquired
properties of defendant No.2. The suit filed by the defendant
No.3 in O.S.No.119/2006 on the file of Senior Civil Judge,
Chintamani for partition was in respect of self acquired
properties of defendant No.2. The plaintiffs have not stated
about the source of income for purchase of properties at
Chintamani by defendant No.2 except stating that those
properties are self acquired properties of defendant No.2.
But, the suggestion in the cross examination of PW-1 would
indicate that the defendant No.2 is doing business in liquor in
the name of Vasavi wines and the licence for doing the said
business stands in the name of defendant No.2 right from
1986. DW-1 the 1st defendant admits that the licence stands
in the name of defendant No.2, but according to DW-1,
Venkatapathy the husband of defendant No.2 had obtained
licence in the name of defendant No.2 and he was doing
business in the name of defendant No.2 and the properties
were purchased in the name of defendant No.2. When there
is prohibition for benami transactions the defendant No.1
cannot contend that the properties were purchased in the
name of defendant No.2 by her husband without proving the
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source of income. Both the plaintiffs and the defendant No.1
have not produced the copy of the licence nor the accounts
pertaining to the wine shop or income from the suit schedule
properties. When defendant No.1 has taken the specific
contention that the properties are purchased by the husband
of defendant No.2 in the name of defendant No.2 out of the
joint family nucleus, the burden is on the defendant No.1 to
prove that defendant No.2 has purchased the properties out
of the joint family nucleus. In the absence of any such
material, the contention of the 1st defendant that the
properties situate at Chintamani purchased and alienated by
defendant No.2 are joint family properties cannot be
accepted.
17. In the cross-examination of DW-1 it was
suggested that defendant No.3 has withdrawn the suit in
O.S.No.119/2006 as it was in respect of the self acquired
properties of the defendant No.2 and he states that he does
not know the reason for withdrawal of the suit. It was also
suggested to him that since the defendant No.3 is addicted
to alcohol, under the influence of alcohol he has got
executed the sale deed dated 18.09.2006 in his favour in
respect of the suit schedule properties and he has denied
the said suggestion. DW-1states that defendant No.2 is
having licence in respect of Vasavi wines since 1986. Under
the said licence till date defendant No.2 is running Vasavi
wine shop. It was suggested to him that the properties
purchased and alienated by the defendant No.2 are her self
acquired properties and he denies the same and further
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stated that Venkatapathy had income and he has purchased
the properties in the name of defendant No.2 and even the
licence was obtained in the name of defendant No.2 by
Venkatapathy. Defendant No.1 has not examined any
witnesses nor produce any documents to prove that
Venkatapathy the husband of defendant No.1 had any
income to purchase the properties in the name of defendant
No.2 and the joint family properties had sufficient nucleus to
purchase the properties at Chintamani in the name of
defendant No.2. It was also suggested to him that
Venkatapathy was also addicted to alcohol and he was not
looking after the family and he was spending all the money
towards his bad habits which has been denied by him.
Defendant No.1 has also produced the partition deed
between Venkatapathy and his 2nd wife Narayanamma as
per Ex.D.27. This document would also indicate that in view
of the 2nd marriage of Venkatapathy, defendant No.2 and
her husband were not in cordial terms and defendant No.2
was doing business of Vasavi wines and had income of her
own for acquisition of the properties at Chintamani. Even
assuming that Venkatapathy and defendant No.2 were in
cordial terms, it is not explained by the defendant No.1 as to
why all the properties have been acquired in the name of
defendant No.2 alone. Venkatapathy could have acquired
properties in his name or in the name of his children, but all
the properties were purchased in the name of Sunandamma
the defendant No.2. Hence, an inference could be drawn that
defendant No.2 had her own income to purchase the
properties situate at Chintamani and she has alienated the
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same by way of gift deeds and sale deeds. Therefore, the
properties situate at Chintamani cannot be held to be joint
family properties and inclusion of those properties in the
present suit is not necessary and defendant No.1 cannot
contend that suit is bad for partial partition.
18. Defendant No.1 has contended that partition
between his father and brothers were about 30 years back
and it was reduced to writing in the year 2005 as per Ex.D.1,
but no such recitals are found in partition deed. In support of
this contention he has produced the sale deed executed by
Venkatapathy the husband of defendant No.2 in favour of
Lakshmi Narayanappa as per Ex.D.28, wherein there is
mention of partition between Venkatapathy and his brothers.
Defendant No.1 has also examined Lakshmi Narayanappa
as DW-4, but in the chief examination he does not state
about the sale of the property by Venkatapathy in his favour
except stating that the suit schedule properties are the
properties allotted to his deceased brother Venkatapathy and
Venkatapathy had acquired several properties in the name of
his wife defendant No.2. It is after examination of DW-4, the
defendant No.1 has produced the sale deed in favour of DW-
4 as per Ex.D.28. Even assuming that there was a partition
between Venkatapathy and his brothers about 30 years
back, the defendant No.1 has not produced any documents
to show as to what are the properties allotted to the share of
Venkatapathy about 30 years back except the property
mentioned in Ex.D.1 i.e., suit schedule properties. Item No.1
of the suit schedule property measures 1 acre 19 guntas,
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item No.2 measures 17 guntas and item No.3 measures 10
guntas situate at Arakunte Village, Ronur Hobli, Srinivaspur
Taluk and considering the lesser extent of the suit schedule
properties, defendant No.1 cannot contend that there was
surplus income from the suit schedule properties for
purchase of properties in the name of 2nd defendant.
19. The learned counsel for the plaintiffs has referred
to the decision reported in ILR 1994 Karnataka, page 1282,
Mangala Vs. Jayabai, wherein at para 10 it has been held
that
“Hindu joint family can exist with one male member. While
dealing with the powers of mother as natural guardian regarding
the joint family properties one thing is evident that 24 RA
No.101/2012 existence of male member is contemplated.
Further, there are instances where male member is a minor even
then he can be construed as karta of the joint Hindu family and
mother can as natural guardian of the Manager minor karta of
joint Hindu family can meddle with the family properties for family
necessity so as to bind all the members of joint Hindu family.”
20. In the present case since defendant No.3 being
the son of Venkatapathy, the suit schedule properties ought
to be treated as joint family properties. The plaintiffs and the
defendants No.2 and 3 constitute a joint Hindu family.
Defendant No.2 being the mother of plaintiffs and defendant
No.3 had no right to gift the joint family properties in favour of
defendant No.3 without the consent of the plaintiffs.
Defendant No.1 has not produced any documents to show
that the consent of the plaintiffs was taken to execute the gift
deed in favour of defendant No.3 or for the defendant No.3
to execute sale deed in favour of defendant No.1 in respect
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of suit schedule properties. The alienation made by
defendant No.2 in respect of properties situate at Chintamani
are not in respect of joint family properties and it is in respect
of self acquired properties as discussed earlier.
21. The learned counsel for the plaintiffs has also
referred to another decision reported in AIR 1992 Madhya
Pradesh, page 208, Kanji S/o. Ganesh Vs. Parmanand,
wherein it has been held that:
“A widow is not a coparcener she cannot therefore be a
karta of the joint Hindu family. Therefore, alienation made by
widow of deceased owner of property would not be binding
on her son and daughters. The alienation made by widow
would bind herself in respect of her own share and share of
another daughter who had gifted her share to mother.”
22. In the present case also defendant No.2 had no
right to execute gift deed in favour of defendant No.3 in
respect of entire extent of suit schedule properties except
her share and not the share of the plaintiffs. Defendant No.2
had right to gift only her share in the schedule properties in
favour of defendant No.3. Therefore, the gift deed executed
by defendant No.2 and the sale deed executed by defendant
No.3 in favour of defendant No.1 could be considered as
valid only to the extent of the share of the defendants No.2
and 3 and not the share of the plaintiffs.
23. It is the contention of the defendant No.1 that the
plaintiffs have not sought for cancellation of gift deed and
sale deed and in this regard the learned counsel for the
plaintiffs has referred to decision reported in ILR 1998
Karnataka, page 2127, Vadde Sanna Hulugappa & others
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Vs. Vadde Sanna Hulugappa & others, wherein it has been
held that:
“Plaintiffs are not parties to any of the alienations
made by the 1st defendant and others. So there was no
legal obligation on their part to specifically pray that the
alienations were not binding on them”
24. In the present case also the plaintiffs are not
parties to the alienation made by the defendants No.2 and 3
and therefore, there is no necessity to seek for cancellation
of the sale deed or gift deed or to seek that the alienation
made by defendants No.2 and 3 are not binding on the
plaintiffs.
25. The learned counsel for the plaintiff also referred
to decision reported in 2009 AIR SCW, page 4471 (Supreme
Court), Gangamma etc Vs. G.Nagarathnamma & others,
wherein it has been held that,
“Sub-Section (1) of Section 14 is very large in its amplitude
and covers every kind of acquisition of property by a female
Hindu. Regardless of whether such property was possession by
a female Hindu on the date of commencement of the Act or was
subsequently acquired or possessed, she would be the full
owner of the property.”
26. Defendant No.1 though contended that the
husband of defendant No.2 acquired the property in the
name of defendant No.2 out of the income from joint family
properties, and in the absence of any proof of surplus
income from joint family properties, the properties acquired
by defendant No.2 is to be treated as her self acquired
property. In view of the principles laid down in the decision
referred by the counsel for the plaintiffs the properties situate
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at Chintamani has to be considered as self acquired
properties of defendant No.2 and there is no necessity to
include those properties in the present suit. Defendant No.1
has not placed any other materials to show that other than
the suit schedule properties there are other joint family
properties to the joint family of the plaintiffs and the
defendants No.2 and 3. Therefore, the alienation made by
the defendants No.2 and 3 is valid to the extent of their share
only and the plaintiffs are entitled for 1/4th share each in the
schedule properties.
27. The trial Court appears to have erred in holding
that the properties situate at Chintamani are also the joint
family properties of the plaintiffs and the defendants No.2
and 3 and those properties are not included in the plaint
schedule and therefore, the plaintiff are not entitled for share
in the schedule properties. Therefore, the judgment and
decree of the trial Court is liable to be set aside and the suit
is liable to be decreed and the plaintiffs are entitled for 1/4th
share in the suit schedule properties. Accordingly, points
No.1, 3 and 4 are answered in the affirmative and point No.2
is answered in the negative.
28. Point No.5 :- In view of the findings on the above
points, the following order is passed :-
ORDER
The appeal filed under Order 41 Rule 1 & 2 r/w
Sec.96 of C.P.C. challenging the Judgment and Decree
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passed in O.S. No.236/2008 on the file of Prl. Civil Judge,
Srinivaspur is hereby allowed with costs through out.
The Judgment and Decree passed in O.S.
No.236/2008 dated 13.04.2012 is set aside.
Consequently the suit of the plaintiffs is decreed with
cost.
The plaintiffs are entitled for 1/4th share each in the
suit schedule properties.
Draw preliminary decree accordingly."
9. In the present appeal, the appellant has filed an
application I.A.No.2/2014 under Order XLI Rule 27 CPC for
production of additional evidence comprising of 17 documents as
can be seen from the list of documents as hereunder:
"1. Certified copy of the sale deed dated: 02.02.1988
executed by Muniyappa in favour of G. Venkatapa. M
Venkatapathi and others in respect of land bearing Sy
No.30/3A measuring 18 guntas of Chinthamani, Kasaba
Hobli, Chikkaballapura District.
2. Certified copy of the sale deed dated: 03.02.1988
executed by M. Ananda in favour of G. Venkatappa.M,
Venkatapathi and others in respect of land bearing Sy
No.30/1A measuring 17 guntas and sy NO. 30/2A
measuring 17 guntas of Chinthamani, Kasaba Hobli,
Chikkaballapura District.
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3. Certified copy of the RTC extracts in respect of land
bearing Sy No. 30/1A of Chinthamani, Kasaba Hobli,
Chikkaballapura District [ 5 in number]
4. Certified copy of the RTC extracts in respect of land
bearing Sy No. 30/2A of Chinthamani, Kasaba Hobli,
Chikkaballapura District [ 5 in number]
5. Certified copy of the RTC extracts in respect of land
bearing Sy No. 30/3A of Chinthamani, Kasaba Hobli,
Chikkaballapura District [ 4 in number]
6. Certified copy of the mutation register extract pertaining
to land bearing Sy No. 30/1A, Sy No.30/2A and Sy
No.30/3A of Chinthamani, Kasaba Hobli, Chikkaballapura
District. [1 in number].
7. Certified copy of the partition deed dated: 16.08.1995
amongst G. venakatappa. S. Sunandamma and others.
8. Certified copy of the sale deed dated: 03.08.2006
executed by Smt. Sunandamma and others in favour of
K.Krishna Reddy in respct of pertaining to land bearing
Sy No. 30/1A, Sy No. 30/2A and Sy No.30/3A of
Chinthamani Kasaba Hobli, Chikkaballapura District.
9. Certified copy of the sale deed dated: 15.04.2014
executed by Smt. Ambuja Krishna Reddy and others in
favour Out Lady of Mercy Province of the society of
Sister pertaining to land bearing Sy No. 30/1A, Sy No.
30/2A and Sy No.30/3A of Chinthamani Kasaba Hobli,
Chikkaballapura District.
10. Certified copy of the sale deed dated: 04.08.1992
executed by Devulam Venkataswamappa in favour of
Smt. S.Sunandamma pertaining to the sites carved out of
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land bearing Sy No.67/2A of Malappahalli, Chinathamani
Town, Kasaba Hobli, Chikkaballapura District.
11. Certified copy of the sale deed dated: 23.05.2007
executed by Nanamma in favour of Smt.
S.Sunandamma pertaining to land bearing Sy No.47/1 of
measuring 1 acre 19 guntas of Gopasandra,
Chinthamani Town, Kasaba Hobli, Chikkaballapura
District.
12. Certified copy of the sale deed dated: 27.12.2007
executed by Smt. S. Sunandamma in favour of
Jayalakshmamma pertaining of land bearing Sy No. 47/1
to the extent of 24 gutnas of Gopasandra, Chinthamani,
Kasaba Hobli, Chikkaballapura District.
13. Certified copy of RTC extracts pertaining to land bearing
Sy No. 47/1 to Sy no.47/14 of Gopasandra, Chinthamani,
Kasaba Hobli, Chikkaballapura District.[13 in number]
14. Copy of encumbrance certificate pertaining to land
bearing Sy No. 47/1 to Sy nO. 47/14 of Gopasandra,
Chinthamani, Kasaba Hobli, Chikkaballapura District [ 11
pages]
15. Certified copy of the voter list pertaining to
Sonnashettihalli, Chinthamani, Chikkaballapura Dsitrct.
[1 in number]
16. Certified copy of the voters list pertaining to
chowdareddypalya, chinthamani, Chikkaballapura District
[ 1 in number]
17. Positive photographs of the house property situated at
Chowdareddypalya, Sonnanashettihally and N.R.
extension [3 in number]"
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10. In addition thereto, the appellant has filed a memo
dated 07.10.2026 enclosing a copy of a registered confirmation
deed dated 07.06.2021 executed by respondent No.1-plaintiff No.1
in favour of the appellant during the pendency of the present
appeal.
11. A perusal of the application I.A.No.2/2014 filed by the
appellant along with the affidavit accompanying the affidavit and
the documents produced along with the application will clearly
indicate that the said documents are relevant and necessary for the
purpose of adjudication of the issues in controversy between the
parties. It is also relevant to state that in the absence of the said
documents and without providing an opportunity to the parties to
adduce additional oral and documentary evidence in relation to the
additional documents, it is not possible to pass an effective decree
in the suit and in the light of the unimpeached, uncontroverted and
unchallenged averments made in the affidavit in support of
I.A.No.2/2014, which clearly indicates that despite exercise of due
diligence, the appellant-defendant No.1 was not in a position to
produce the said documents earlier, I am of the considered opinion
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that the application I.A.No.2/2014 deserves to be allowed and the
documents produced along with the said application deserves to be
received on record.
12. The next question that arises for consideration is the
procedure to be followed after allowing I.A.No.2/2014 and receiving
the additional documents on record. In this context, it is pertinent to
extract the provisions contained in Order XLI Rule 27, which reads
as under:
“ Order XLI Rule 27. Production of Additional Evidence
in Appellate Court. - 1) The parties to an appeal shall not
be entitled to produce additional evidence, whether oral or
documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred has
refused to admit evidence which ought to have been
admitted, or
(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge or
could not, after the exercise of due diligence, be produced
by him at the time when the decree appealed against was
passed, or
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause, the
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Appellate Court may allow such evidence or document to be
produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced
by an Appellate Court, the Court shall record the reason for
its admission.”
13. As noticed supra, apart from the documents produced
by the appellant along with I.A.No.2/2014 for permission to produce
additional evidence, respondent No.1-plaintiff No.1 has executed a
registered confirmation deed dated 07.06.2021 in favour of the
appellant during the pendency of the present appeal, whereby the
right, title, interest and possession of the appellant-defendant No.1
has been confirmed by respondent No.1- Plaintiff No.1. In addition
thereto, respondent No.2-plaintiff no. 2 has been served with notice
of the appeal and has chosen to remain unrepresented.
14. In its recent judgment in the case of Chowdappa Vs.
Hanumantharayappa and others - 2026 INSC 816 , while
reiterating the principles governing receipt of additional evidence
under Order XLI Rule 27 CPC, the Apex Court held as under:
" 1. Delay condoned.
2. Leave granted.
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3. We have heard Ms. Kiran Suri, Learned Senior
Counsel for the Appellant, and Mrs. Prabha Swami, Learned
Counsel for the Respondents.
4. The Learned Counsel appearing for the parties
have addressed this Court on the failure of the High Court in
considering and disposing of I.A.No. 1/25 filed for receive
additional evidence by the Appellant./
5. Respondent Nos. 5 and 6 before this Court filed
O.S.No. 485 of 1999 in Court of the Senior Civil Judge,
Devanahalli, which has been renumbered as O.S. No.
86/2006 for partition and separate possession of plaint
Schedules ‘A’, ‘B’ and ‘C’. On 12.09.2006, the said Suit was
decreed by the Trial Court, resulting in Respondent Nos. 1 to
4 filing RFA No. 2076 of 2006 in the High Court of
Karnataka, Bengaluru. C/W RFA Cross Objection No. 17 of
2012 was filed by the Appellant. The Appellant is arrayed as
Defendant No. 1 in the Original Suit.
6. On 16.12.2025, the RFA as well as the cross-
objections were dismissed by the High Court. Hence, the
Civil Appeal at the instance of the Respondent No. 3 in RFA
No. 2076 of 2006.
7. Ms. Kiran Suri argues that the Impugned Judgment,
though the High Court has considered a few of the
controversies between the parties and confirmed the view
taken by the Trial Court, still, the Judgment under appeal is
liable to be set aside on the short ground that the Additional
Evidence Application in I.A. No. 1/25 has not been heard and
decided. The learned Senior Counsel further argues that the
Additional Evidence was filed in conformity with the
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requirements of Order XLI Rule 27 of the Code of Civil
Procedure, 1908 (“CPC”). The additional evidence
establishes the infirmity in the case of the Plaintiffs. The
Appellant was denied an opportunity by the High Court, and
the Appellant cannot, by referring to those documents, assail
the findings of the view taken by the Trial Court and the High
Court. She places reliance on Jatinder Singh and another v.
Mehar Singh and others,1 North Eastern Railway
Administration, Gorakhpur v. Bhagwan Das (Dead) By LRs.,
Namdeo v. Tukaram S/o Marotrao Jadhav,3 Iqbal Ahmed
(Dead) by LRs. And another v. Abdul Shukoor,4 G.
Shashikala (dead) Thr. LRs v. G. Kalawati Bai (dead) Thr.
LRs and others,5 and pray for setting aside the Impugned
Judgment.
8. Advocate Prabha Swami, appearing on caveat for
the contesting Respondents, has taken time on 15.05.2026
to verify whether the objection now taken before this Court is
factually tenable or not.
9. One of the Respondents, C. Muniraju, has filed an
Affidavit. The Affidavit reads thus:
“2. It is submitted that the present Special Leave
Petition was filed by the Petitioner challenging the
impugned final judgment and order dated 16.12.2025 in
RFA No. 2076/2006 and R.F.A CROB No. 17/2012 passed
by the High Court of Karnataka at Bengaluru.
3. I state that the Application to bring on record
Additional documents/evidence was filed by the Petitioner
on 28.10.2025 (ANNEXURE P-9 at Page 213 of the
Special Leave Petition Paperbook). I further state that
pursuant to the same, the matter was listed before the high
Court on 04.11.2025 for final hearing along with
applications filed for production of additional documents
and for condonation of delay. The High Court by its order
dated 04.11.2025 stated “Heard. Reserved for orders.” I
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humbly state that the final judgment and order was passed
thereafter on 16.12.2025. A copy of the extract of the
cause list for 04.11.2025 is annexed hereto and marked as
Document -1. A copy of the order dated 04.11.2025 passed
by the High Court of Karnataka at Bengaluru in RFA No.
2076/2006 and R.F.A CROB No. 17/2012 is annexed
hereto and marked as Document-2.”
10. Therefore, it is argued that it is not a case where
the Application for Additional Evidence has not been heard
but a case where it is not actually disposed of.
11. In the above background, we refer to Order XLI,
Rule 27 of the CPC hereunder:
“Order XLI Rule 27. Production of Additional Evidence
in Appellate Court.
(1) The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or documentary,
in the Appellate Court. But if-
(a) the Court from whose decree the appeal is
preferred has
refused to admit evidence which ought to have been
admitted, or
(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge or
could not, after the exercise of due diligence, be produced
by him at the time when the decree appealed against was
passed, or
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it to
pronounce
judgment, or for any other substantial cause, the Appellate
Court may allow such evidence or document to be
produced, or witness to be examined.
(2) Whenever additional evidence is allowed to be
produced by an Appellate Court, the Court shall record the
reason for its admission.”
12. The decisions relied on by the Appellant can be
captured and summarised as follows:
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12.1 An Appellate Court has a statutory duty to deal
with an Application for Additional Evidence on its merits. The
application cannot be ignored while the Court proceeds to
pronounce the final Judgment.
12.2 The Application must be considered
simultaneously with the hearing of the main Appeal on its
merits to determine whether the Court "requires" the
documents to pronounce Judgment or for any other
substantial cause.
12.3 The Appellate Court must pass a specific order
either allowing or rejecting the application. If the production
of documents is allowed, the Court is obligated to record its
reasons for admission.
12.4 Before undertaking the exercise of evaluating the
additional evidence, the Appellate Court must first examine
the party's pleadings to ensure that the foundational case set
up supports the introduction of the proposed evidence.
12.5 Dismissing an appeal without deciding a pending
application for additional evidence constitutes a jurisdictional
error and results in a severe miscarriage of justice.
13. Leading to the conclusion that, in the present
matter, the High Court of Karnataka dismissed the Cross-
Objection without referring to, considering, or adjudicating
the Application filed under Order XLI Rule 27 CPC for the
production of crucial documents, including the Judgments
from O.S. 369 of 1997, bank loan discharges, and surveyor
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sketches. The High Court committed a direct jurisdictional
error by completely ignoring the Application while disposing
of the Appeal, directly contravening the principles laid out in
the decisions supra. The High Court had a duty to evaluate
the Application at the final hearing to determine whether the
documents were necessary to pronounce Judgment in a
more satisfactory manner. The failure to pass a reasoned
order either allowing or rejecting this Application before
sustaining the Trial Court's decree resulted in a procedural
failure and a miscarriage of
justice.
14. In view of the above, the Impugned Judgment
dated 16.12.2025 is set aside. The Civil Appeals are allowed.
The RFA No. 2076 of 2006 is restored together with cross
objections and remanded to the High Court for fresh
disposal.
15. Pending Application(s), if any, shall stand
disposed of accordingly."
15. Under these circumstances, in order to provide
adequate and sufficient opportunity to both sides to putforth their
respective contentions on merits as well as in relation to the
additional documents produced by the appellant along with
I.A.No.2/2014 and also the registered confirmation deed dated
07.06.2021, without expressing any opinion on the merits/demerits
of the rival contentions, I deem it just and appropriate to set aside
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the impugned judgment and decree dated 04.06.2014 passed in
RA No.101/2012 by the First Appellate Court and remit the matter
back to the First Appellate Court for reconsideration afresh and in
accordance with law. The substantial questions of law are
answered accordingly.
16. In the result, I pass the following:
ORDER
i. The appeal is allowed.
ii. The impugned judgment and decree dated 04.06.2014
passed in R.A.No.101/2012 by the III Additional Senior Civil
Judge, Kolar, is hereby set aside.
iii. The matter is remitted back to the First Appellate Court for
reconsideration of the appeal afresh and in accordance with
law.
iv. I.A.No.2/2014 is hereby allowed and the Registry of this
Court is directed to transmit I.A.No.2/2014 along with the
documents to the First Appellate Court to enable the First
Appellate Court to proceed further in the matter.
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v. Both the appellant and respondents are hereby reserved
liberty to adduce additional oral and documentary evidence
in support of their respective claims before the First
Appellate Court.
vi. The First Appellate Court shall reconsider the entire matter
afresh and take into account the subsequent event of the
respondent No.1-plaintiff No.1 executing the registered
confirmation deed dated 07.06.2021 in favour of the
appellant and pass appropriate orders in accordance with
law, as expeditiously as possible.
vii. The appellant and respondent No.1 are directed to appear
before the First Appellate Court on 30.11.2026 without
awaiting further notice.
viii. The First Appellate Court shall issue court notice to
respondent Nos.2 to 4 and provide sufficient and reasonable
opportunity to all parties and dispose of the appeal as
expeditiously as possible.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
BMC: List No.: 1 Sl No.: 3