SRI K.G. VENKATARAMANASA SINCE DECEASED BY LRS vs SRI K.V. HONNUSA

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RFA No. 1028 of 2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R

TH
DATED THIS THE 25 DAY OF FEBRUARY, 2026

BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

REGULAR FIRST APPEAL NO. 1028 OF 2011 (PAR)

BETWEEN:

1.


1(A)



SRI. K.G. VENKATARAMANASA
SINCE DECEASED BY LRS

SMT. PARVATHAMMA
D/O VENKATARAMANASA .K.G
W/O P. NARAYANA
TH
NO. K 69, 6 CROSS
MAGADI ROAD, BANGALORE-560023.

1(B) SRI. K.V. CHANDRAHASA
S/O VENKATARAMANASA .K.G
MAJOR
ST ND
#20, 1 A CROSS, 2 MAIN ROAD
SUBBANNA GARDEN, VIJAYANAGAR
BANGALORE - 560 040.

1(C)



1(C)(A)



1(C)(B)



1(C)(C)











Digitally signed
by NAGARAJA B
M
Location: HIGH
COURT OF
KARNATAKA
SRI. K.V. SRI HARI
S/O VENKATARAMANASA .K.G
SINCE DECEASED BY LRs

SMT. PRABHAVATHI
W/O LATE K.V.SRI HARI
AGED ABOUT 62 YEARS

SRI. LAKSHMINARAYANA .K.S
S/O LATE K.V.SRI HARI
AGED ABOUT 37 YEARS

SRI. HEMANTH KUMAR .K.S
S/O LATE K.V.SRI HARI

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1(C)(D)
AGED ABOUT 35 YEARS

SRI. KIRANKUMAR .K.S
S/O LATE K.V.SRI HARI
AGED ABOUT 32 YEARS

ALL ARE RESIDING AT NO.3
ST
1 MAIN ROAD, MALLIGE THOTA
MAGADI ROAD
BANGALORE-560 023.

1(D) MRS. LAXMIDEVI
W/O LATE VENKATARAMANASA .K.G
AGED MAJOR
TH
R/OF NO.6/5, 6 CROSS
NEAR CHAITANYA COMMUNICATION
MAGADI ROAD, BANGALORE-560 023.

1(E) SRI. K.V. GURU GOVIND
S/O LATE VENKATARAMANASA .K.G
AGED MAJOR
TH
R/OF NO.6/5, 6 CROSS
NEAR CHAITANYA COMMUNICATION
MAGADI ROAD, BANGALORE-560 023.

1(F) SMT. KAMALA .K.V
D/O LATE SRI VENKATARAMANASA .K.G
MAJOR
TH
#6/5, 6 CROSS, NEAR CAITANYA
COMMUNICATION, MAGADI ROAD
BANGALORE - 560 023.

2.



2(A)
SRI. K.G. VITTALASA
S/O CHIKKA GOVINDASA KABADI
SINCE DECEASED BY LRS

SMT. K.V. MANJULA
W/O VASANTHKUMAR
AGED 40 YEARS
ND
D. NO.72/1, 2 MAIN ROAD
DOBHIGHAT, SRINAGAR

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BANGALORE - 560019.

2(B)



2(B)(A)



2(B)(B)



2(B)(C)
SMT. M.P. NAGALAKSHMI
W/O M.S. PANDURANGASA
SINCE DECEASED BY LRs

SRI. M.S. PANDURANGA
S/O LATE M. SHAMUSA
AGED ABOUT 60 YEARS

SRI. MITHUN .M.P
S/O LATE NAGALAKSHMI
AGED ABOUT 26 YEARS

KUMARI SHRUTHI .M.P
D/O LATE NAGALAKSHMI
AGED ABOUT 19 YEARS

R/AT NO.6, A.M.LANE
B.V.K. IYENGAR ROAD
CHIKKAPETE CROSS
BANGALORE-560 053.

2(C) SMT. D.V. GEETHA @ ASHA
W/O D.L. VIKAS
AGED 43 YEARS
TH
NO.4, 5 CROSS, KILARI ROAD
BANGALORE-560 053.

2(D) SRI. K.V. GOVINDA
AGED 37 YEARS
S/O K.G. VITTALSA
ST
NO.51, 1 MAIN ROAD
RD
3 CROSS, GANGAPPA GARDEN
K.P. AGRAHARA, BANGALORE.

2(E) SRI. K.V. KRISHNASA
AGED 46 YEARS
S/O LATE K.G. VITTALASA
ST
NO.65/4, 1 CROSS, KAVERIPURA
KAMAKSHIPALYA, BANGALORE-560 079.

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2(F) SRI. K.V. CHANDRASHEKAR
AGED 42 YEARS
S/O LATE K.G. VITTALSA
TH RD
NO.50, 6 CROSS, 3 MAIN
K.P. AGRAHARA
BANGALORE-560 023.

2(G) SRI. K.V. SURYAPRAKASH
S/O LATE K.G. VITTALASA
MAJOR
ND
NO.19/1, 22 CROSS
K P AGRAHARA, BHUVANESHWARINAGAR
BANGALORE-560 023.

2(H) SMT. SARASWATHI BAI
AGED 53 YEARS
D/O LATE K.G. VITTALASA
TH
D NO.91, 24 CROSS
MARIYAPPANAPALYA, K.P. AGRAHARA
BANGALORE-560 023.
…APPELLANTS

(BY SRI. N. VAGEESH, ADVOCATE FOR
SRI. A.RAMACHANDRA, ADVOCATE FOR LRs OF APPELLANT)

AND:

1. SRI K.V. HONNUSA
AGED 63 YEARS
S/O K.G. VENKOBSA
LABEL WORKER
R/OF NO.13, KEMPAPURA AGRAHARA
MAGADI ROAD
BANGALORE - 560023.

2.



2(A)
SRI. K.G. HONNUSA
S/O CHIKKA GOVINDASA KABADI
SINCE DEAD BY HIS LRS

SRI. DWARAKANATH H. KABADI
S/O K.G. HONNUSA

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AGE MAJOR
R/AT SREE CHARAN, NO.80
TH ST
5 CROSS, 1 MAIN ROAD
HIG BDA COLONY, II STAGE
RAJMAHL VILAS, BANGALORE-560094.

2(B) SRI. RAGHU H. KABADI
S/O LATE K.G. HONNUSA
AGED MAJOR
M/S MEENA AGARBATHI
RD ST
#444, 3 PHASE, 1 BLOCK
NEAR KADAMBI SCHOOL
RAJAJINAGAR, BANGALORE 560079.

2(C) SRI. NANDA KUMAR H. KABADI
S/O LATE K.G. HONNUSA
SINCE DECEASED BY LRS
SMT. GOWRAMMA
W/O LATE NANDA KUMAR H. KABADI
MAJOR
TH
R/AT NO.1053, 5 MAIN ROAD
SANOJURUVANAHALLI
BASAVESHWARANAGAR
BANGALORE - 560079.

2(D) SRI. GOVINDA H. KABADI
S/O LATE K.G. HONNUSA
MAJOR
TH
R/AT NO.2069, 20 MAIN ROAD
II BLOCK, CHORD ROAD
RAJAJINAGAR, BANGALORE-560010.

2(E) SMT. PUSHPANJALI
W/O LAXMAN SIRIGIRI
GENERAL MERCHANT
3-5-1098/1, SPAN RESIDENCY
FLAT NO.201, II FLOOR
NARAYANAGUDA
SRI NIZAMAT JURG WAKF
HYDERABAD.

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2(F) SMT. RAJESHWARI
W/O NAGARAJ
D/O K.G. HONNUSA
AGED MAJOR
R/AT NO.15, OLD NO.(8)
TH
4 CROSS, S.P. EXTENSION
MALLESHWARAM
BANGALORE - 560 003.

2(G) SMT. MEENA
D/O LATE K.G. HONNUSA
AGED MAJOR
R/AT NO.1030, DR. RAJKUMAR ROAD
II STAGE, OPP. CORPORATION BANK
RAJAJINAGAR, BANGALORE-560 010.

2(H) SMT. PADMA
W/O MACHENDRANATH VAGALE
D/O LATE K.G. HONNUSA
AGED MAJOR
TH
R/AT 2069, 20 MAIN ROAD
RAJAJINAGAR, BANGALORE - 560 010.

3. SRI. K.V. NARAYANASA
AGED 65 YEARS
S/O LATE VENKOBASA KABADI
R/AT KEMPAPURA AGRAHARA
KADAPPANAPALYA
BANGALORE-560 023.

4.


4(A)
SRI. K.V. LAKSHMANASA
SINCE DECEASED BY HIS LR'S

SMT. PREMA
AGED 55 YEARS
D/O LATE K.V. LAKSHMANASA
ST
R/AT NO.61, 1 A MAIN
ND
22 CROSS, K P AGRAHARA
BANGALORE - 560023.

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4(B) SRI. K.L. SRINIVAS
S/O LATE K.V. LAKSHMANASA
ST
R/AT NO.61, 1 A MAIN ROAD
ND
22 CROSS, K P AGRAHARA
BANGALORE-560 023.

4(C) SRI. K.L. MAHESH
S/O LATE K.V. LAKSHMANASA
AGED ABOUT 30 YEARS
ST ND
1 A MAIN ROAD, 22 CROSS
K.P. AGRAHARA
BANGALORE-560023.

5. SRI. JAGANNATHSA .K.V
S/O LATE VENKOBASA KABADI
AGED ABOUT 50 YEARS
TH
NO.66, 5 CROSS
CHOLARAPALYA, MAGADI ROAD
BANGALORE-560023.

6. SRI. SURYAPRAKASHA .K.V
S/O LATE VENKOBASA KABADI
AGED ABOUT 45 YEARS
TH
R/AT NO.9/1, 10 CROSS
MAGADI ROAD, BANGALORE-560023.

7. SRI. K.V. RAMU
S/O LATE VENKOBASA KABADI
AGED ABOUT 60 YEARS
TH
NO.15, 5 CROSS
VIDYARANYA NAGAR
MAGADI ROAD, BANGALORE-560023.

8.



8(A)



SRI. PARAMESHWARA
S/O LATE VENKOBASA KABADI
SINCE DEAD BY HIS LRs

SRI. SAVITHRI
W/O LATE PARAMESHWARA
AGED ABOUT 65 YEARS

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8(B)



8(C)




8(D)



8(E)



8(F)


SMT. SUNITHA
S/O LATE PARAMESHWARA
AGED ABOUT 38 YEARS

SMT. GEETHA
D/O LATE PARAMESHWARA
AGED ABOUT 36 YEARS
R/AT 245

SRI. SHIVA
S/O LATE PARAMESHWARA
AGED ABOUT 32 YEARS

SMT. SHOBA
D/O LATE PARAMESHWARA
AGED ABOUT 28 YEARS

SRI. KRISHNA
S/O LATE PARAMESHWARA
AGED ABOUT 33 YEARS

ALL ARE R/AT NO.17
RANGANTHAPURA, II CROSS
KAMAKSHIPALYA
BANGALORE-560 079.

9. SRI. K.V. GOPALASA
S/O LATE VENKOBASA KABADI
AGED ABOUT 72 YEARS
TH
NO.10, 4 CROSS
PURNASESHACHAR LANE
SANTHOSAPET, BANGALORE-560053.

10. SRI. K.V. CHIKKAHONNUSA
@ KRISHNASA
SINCE DECEASED
BY HIS LRS

SMT LEELAVATHI @ LEELABAI KABADI
W/O LATE CHIKKANONNASA
@ KRISHNASA

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R/AT RAVI TAILORS
KABOOTARAKHANA ZANDA BAZAR
B.K. ROUTH CHAWL
VASSAI-101201.

11. K.N. NAGARAJU
S/O LATE K.G. NARAYANASA
AGED ABOUT 65 YEARS
NO.265, HARIHARESHWARA DEVALAYA
AGRAHARA LAYOUT, YELAHANKA
BANGALORE NORTH TALUK.

12.




12(A)



12(B)



12(C)







12(D)



12(E)



SMT. RAJAMANI @ RUKMINI
W/O LATE K.M. NAGENDRASA
D/O LATE NARAYANASA KABADI
SINCE DEAD BY LRs

SHEKAR
S/O LATE RAJAMANI
AGED ABOUT 45 YEARS

MURALI
S/O LATE RAJAMANI
AGED ABOUT 42 YEARS

ARUNA
S/O LATE RAJAMANI
AGED ABOUT 40 YEARS
R/AT NO.245, MUNESHWARA LAYOUT
BEL II STAGE, BYDARAHALLI
MAGADI MAIN ROAD
BANGALORE-560 091.

GURUNATH
S/O LATE RAJAMANI
AGED ABOUT 36 YEARS

SHOBA
D/O LATE RAJAMANI
AGED ABOUT 38 YEARS

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12(F)




LAKSHMI
D/O LATE RAJAMANI
AGED ABOUT 33 YEARS

R12(A, B, D, E, F) ARE R/AT
NO.21, 'RAJAMANI NILAYA'
TH
14 CROSS, CHOLARAPALYA
MAGADI ROAD, BANGALORE-23.

13. SRI. K. KASHIVISHWANATHA
S/O LATE K.N. GOPALKRISHNA
AGED ABOUT 55 YEARS
RD
NO.6, 3 FLOOR
BEHIND KHELEEL BUIDINGS
P.S. CHAR STREET
BANGALORE-53.

14. SRI. G. MANJUNATH
S/O LATE K.N. GOPALKRISHNA
MAJOR
TH TH
NO.771, 6 CROSS, 6 BLOCK
RAJAJINAGAR, BANGALORE-10.

15. SRI. G. RAMESH
S/O LATE K.N. GOPALKRISHNA
MAJOR
TH
NO.4/15, 4 CROSS
MANJUNATH NAGAR, MAGADI ROAD
BANGALORE-23.

16. SMT. SAVITHRI
SINCE DECEASED BY HER LRS

SMT. VATSALA .T.V
D/O LATE SAVITHRI
AGED ABOUT 25 YEARS
R/O NO.K-30, PURNA SESHACHAR STREET
SANTHUSAPET
BANGALORE-560053.

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16(II) SRI. T.V. SUMAN
D/O LATE SAVITHRI
AGED ABOUT 21 YEARS
R/O NO.K-30, PURNA SESHACHAR STREET
SANTHUSAPET
BANGALORE-560053.

16(III) SRI. T.V. SASHIREKHA
D/O LATE SAVITHRI
AGED ABOUT 19 YEARS
R/O NO.K-30, PURNA SESHACHAR STREET
SANTHUSAPET
BANGALORE-560053.

16(IV) SMT. UMADEVI .T.V
D/O LATE SAVITHRI
W/O CHETANKUMAR
AGED ABOUT 22 YEARS
TH
R/AT 9 A MAIN ROAD
HAMPINAGAR, BANGALORE-560104.

17.



17(A)
SMT. H.O. CHANDRAKANTHA
W/O H.R. RAJGOPAL
SINCE DEAD BY HER LRS

SRI. ANAND KUMAR
S/O H.R. RAJGOPAL
AGED ABOUT 35 YEARS

17(B) MOHANA
S/O H.R. RAJGOPAL
AGED ABOUT 25 YEARS

17(C) RAJESHWARI
D/O H.R. RAJGOPAL
AGED ABOUT 33 YEARS

17(D) REKHA
D/O H.R. RAJGOPAL
AGED ABOUT 30 YEARS

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17(E) LATHA
D/O H.R. RAJGOPAL
AGED ABOUT 27 YEARS

R10(A TO E) ARE R/AT NO.1078/5
TH
9 MAIN, VIJAYANAGAR
BANGALORE.

[VIDE COURT ORDER CAUSE-TITLE
IS AMENDED]
…RESPONDENTS

(BY SRI. K.N. NITISH, ADVOCATE FOR R2 (A TO H);
SRI. S. NAGARAJ AND SRI. ARUN .B, ADVOCATES FOR
R11, R13 TO R15;
SRI. ANIL KUMAR SHETTY, ADVOCATE FOR R12(A TO F);
SRI. H.N.VENKATESH, ADVOCATE FOR R17(A TO E);
V/O DATED 22.03.2019, R3 IS DECEASED AND NO LRs
TO BE BROUGHT ON RECORD'
R1, R4(A), R4(B), R4(C), R5, R6, R7, R9, PROPOSED
R8(A), R8(B), R8(C), R8(D), R8(E), R8(F), R10(A),
R16(I TO IV) ARE SERVED)

THIS RFA IS FILED U/SEC.96, R/W, O-XLI, RULE-1(r) OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
18.09.2010 PASSED IN O.S.5734/1994 ON THE FILE OF THE
XXXVIII-ADDL. CITY CIVIL JUDGE, BANGALORE, DISMISSING
THE SUIT FOR THE PARTITION AND SEPARATE POSSESSION.

THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

ORAL JUDGMENT
The captioned appeal is by the defendant Nos.2 and
3 assailing the judgment and decree rendered in
O.S.No.5734/1994, whereby the plaintiff's suit seeking
relief of partition is rejected. Consequently, the claim of
partition set up by defendant Nos.2 and 3 is also rejected.
It is only defendant Nos.2 and 3 who are in appeal while
plaintiff has accepted the dismissal decree rendered in
O.S.No.5734/1994.
2. For the sake of brevity, the parties are referred
to as per their rank before the trial Court.
3. The family tree is as under:

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CHIKKA GOVINDASA [DEAD]



ST ND
HONNUBAI [1 WIFE] [DEAD] CHINNUBAI [2 WIFE] [DEAD]



VENKOBASA NARAYANASA K.G.HONNUSA VENKATARAMANASA VITTALASA
[DEAD] [DEAD] [DEAD] [DEAD] [DEAD]

K.V.HONNUSA GOPALKRISHNA DWARAKANATH LAXMIBAI SURYAPRAKASH
[PLAINTIFF] [DEAD] KABADI [WIFE]

K.V.NARAYANASA NAGARAJA RAGHU KABADI PARVATHAMMA KANTHA

K.V. GOPALSA RAJAMANI NANDAKUMAR CHANDRAHASA SARASWATHI

K.V. LAXMANSA GOVIND H. KABADI SRI HARI GOVINDA

JAGANNATHASA PUSHPA LAXMIDEVI NAGALAXMI

SURYAPRAKASH RAJESHWARI GURUGOVIND KRISHNA

K.V.RAMU MEENA KAMALA SHEKARA

K.V.PARAMESH PADMA SAVITHRI MANJU

K.V.SATHYANARAYAN GEETHA







KASHIVISHWANATHA MANJUNATH RAMESH










4. Facts leading to the case are as under:
The plaintiff namely K.V.Honnusa who is the first son
of Venkobasa filed a partition suit asserting that suit

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schedule properties namely Item Nos.1 to 15 are joint
family ancestral properties and that they have legitimate
share in the suit schedule properties. Asserting that these
properties are joint family ancestral properties and plaintiff
constitutes an undivided joint Hindu family with
defendants, the present suit was instituted.
5. On receipt of summons, defendant No.1 filed
written statement and seriously contested the plaintiff's
claim asserting that Item Nos.6 to 15 are the self acquired
properties and hence, sought for dismissal of the suit.
Defendant Nos.2 and 3 filed written statement and
contented that Item Nos.6 to 15 are also joint family
ancestral properties and therefore, they have got their
legitimate share in the property and hence, by way of a
counter claim, claimed their legitimate share thereby
virtually supporting the plaintiff's pleadings in the plaint.
The daughter of defendant No.3 also filed written
statement and sought her legitimate share in the suit
schedule property.

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6. Based on rival pleadings, the trial Court
formulated appropriate issues. The learned trial Court
Judge called upon the plaintiff and defendants to lead their
respective oral and documentary evidence in support of
their claims. The plaintiff examined himself as PW.1 and in
all produced 96 documents marked as Exs.P-1 to P-96.
Defendant Nos.2 and 3 in support of their contention lead
in rebuttal evidence and sought their legitimate share in
the suit schedule properties.
7. The trial Court, on over all appreciation of oral
and documentary evidence, answered additional Issue
No.1 in the affirmative and held that legal representatives
of defendant No.1 have succeeded in substantiating that
item Nos.4, 5 and 9 to 15 of the suit schedule properties
are self acquired properties of deceased defendant No.1.
While answering additional Issue No.2 in the affirmative
held that father of plaintiff namely K.G. Venkobasa has
taken some properties and executed registered release
deed on 04.02.1934 and held that plaintiff is not entitled

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for a share. While answering additional Issue No.3 in the
affirmative also held that legal representatives of
defendant Nos.1 to 3 and defendant No.2 have also
substantiated that deceased K.G.Narayanasa has released
his rights and interest over the suit schedule property.
8. Learned counsel appearing for defendant Nos.2
and 3 reiterating the grounds urged in the appeal memo
would vehemently argue and contend that though
defendant No.1 has asserted that item Nos.10 to 15 are
self acquired properties, except bald assertion in the
plaint, there is absolutely no clinching documentary
evidence to substantiate the claim of defendant No.1 that
Item Nos.10 to 15 are his self-acquired properties. Insofar
as Item Nos.6 to 9 are concerned, the counsel appearing
for defendant Nos.2 and 3 would point out that though the
Revenue officer notified the Item Nos.6 to 9 as a pada
land on the premise that the land revenue was not paid,
he would point out that these properties are also ancestral
properties and defendant No.1 having succeeded to

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retrieve back these lands, defendant Nos.2 and 3 are
entitled to their legitimate share in the suit schedule
property. Reliance is placed on Exs.D-8, D-14 and D-22 in
support of their contention.
9. The counsel appearing for defendant Nos.2 and
3 has also placed reliance on the following judgments:
1) Zaheera Banu Kareem vs. Gomathi Bai G.Kamath
- ILR 1994 Kar 662;
2) Kashinathsa Yamosa Kabadi vs. Narsingsa
Bhaskara Kabadi - AIR 1961 SC 1077;
3) Kashibai and Others vs. Smt. Putalabai and
Another - AIR 1987 Kar 156;
4) Sri. Ramamurthy vs. The State of Karnataka and
Others - W.P.No.31530/2024;
5) Smt. V.V.Ramani and Another vs. Smt.
V.V.Hemalatha & Others - W.P.No.12403/2020.

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10. Per contra, learned counsel appearing for the
legal heirs of defendant No.1 has vehemently argued and
contended that insofar as item Nos.6 to 8 are concerned,
the said lands were lost in view of non-payment of land
revenue which resulted in forfeiture and the lands stood
vested with the State Government and the Government in
turn treating these lands as surplus lands has granted to
third parties and without impleading third parties and
questioning the grant, the defendant Nos.2 and 3 cannot
assert claim over Item Nos.6 to 8.
11. Insofar as Item No.9 is concerned bearing
Sy.No.35, counsel appearing for the legal heirs of
defendant No.1 has vehemently argued and contended
that this land was also notified as a pada land in view of
non-payment of land revenue to the government and the
land stood vested with the Government. He would further
contend that third party rights were created and that State
has already granted the land in Item No.9 to one
Kempaiah, who also turned out to be a defaulter and at

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this juncture, after lapse of 27 years, defendant No.1 paid
the land revenue arrears and the charge over Item No.9
was discharged. Therefore, he would submit that Item
No.9 has to be treated as self acquired property of
defendant No.1 and therefore, defendant Nos.2 and 3
cannot enforce partition in respect of Item No.9. He would
further point out that as on the date the kathas were
restored in the name of defendant No.1, all the brothers
had already separated, there was complete severance,
there was no joint family nucleus and therefore,
restoration of katha in the name of defendant No.1 has to
be construed as self-acquired property of defendant No.1
and therefore, defendant Nos.2 and 3 are not entitled for a
share in Item No.9.
12. Insofar as Item Nos.10 to 15 are concerned, he
would submit that except bald assertion by the plaintiff
and defendant Nos.2 and 3, there is absolutely no material
indicating that Item Nos.10 to 15 are also joint family
ancestral properties. He would submit that it is trite that

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the initial burden is always on the plaintiff and the co-
defendants who are supporting plaintiff to demonstrate
that a particular suit property is a joint family ancestral
property. Except bald assertion, no documents are
produced to demonstrate that Item Nos.10 to 15 are also
joint family ancestral properties. He has also laid emphasis
on the fact that defendant Nos.2 and 3, though set up a
counter claim, have failed to pay court fee and therefore,
there is legally no claim insofar as defendant Nos.2 and 3
are concerned and therefore, the defendant Nos.2 and 3
cannot maintain an appeal and insist for their legitimate
share in the suit schedule property.
13. In support of his contention, he has placed
reliance on the following judgments:
1) Muddasani Venkata Narasaiah (Dead) through
LR's vs. Muddasani Sarojana - (2016) 12 SCC 288;
2) The Trading Corporation of India Limited,
Bangalore vs. Vanivilas Co-operative Sugar Factory

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Limited, Hiriyur, Chitradurga District - 2001 SCC Online
Kar 239;
3) Thulasidhara & Another vs. V.Narayanappa &
Others - (2019) 6 SCC 409.

14. Having heard the learned counsel on record,
this Court has given its anxious consideration to the
pleadings averred by defendant Nos.2 and 3 and also the
stand taken by the original defendant No.1 in the written
statement. The following points would arise for
consideration:
(i) Whether defendant Nos.2 and 3 have
succeeded in substantiating that Item Nos.6 to 15
are joint family ancestral properties?
(ii) Whether trial Court erred in dismissing the
counter claim on the ground that Item Nos.6 to 15
are self acquired properties of defendant No.1?
(iii) Whether the legal heirs of defendant No.3
are estopped and they would lose a right in view of
agreement executed by them evidenced at Ex.D-28

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thereby acknowledging the defendant No.1's right
and title over the suit schedule property?
(iv) Whether defendant Nos.2 and 3 are to be
non-suited on the ground that though counter claim
was set up in a written statement for non-payment
of court fee, the counter claim has to be non-suited?
(v) What Order?

Finding on Point Nos.(i) and (ii):
15. Though defendant Nos.2 and 3 have made an
attempt to contend that Item Nos.6 to 15 constitute joint
family ancestral properties, such contention, on a closer
and deeper scrutiny of the pleadings and evidence, does
not inspire confidence. A mere assertion in the written
statement that the properties are ancestral, without
foundational facts and supporting material, cannot be
elevated to proof. Insofar as Item Nos.10 to 15 are
concerned, except making a bald and omnibus statement
that they are joint family ancestral properties, defendant
Nos.2 and 3 have not placed any acceptable material

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before the Court to demonstrate that these properties
were originally acquired by the common ancestor or that
they descended through successive generations so as to
partake the character of coparcenary property.
16. The learned counsel appearing for defendant
Nos.2 and 3 sought to draw sustenance from certain
recitals found in the sale deeds executed by the legal heirs
of defendant No.1, wherein the suit lands are described as
“ancestral properties.” This Court is not persuaded to
accept the said submission. A recital in a sale deed,
particularly when executed by the children of original
defendant No.1, describing the property as ancestral,
cannot by itself determine the legal character of the
property. Such description must be understood in the
context of the inter se understanding of the executants
and cannot substitute strict proof of the property being
ancestral in the eye of law. The character of a property as
joint family ancestral property must be established by

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independent evidence tracing title to the ancestor and
showing its devolution by survivorship.
17. It is a settled principle of law that the initial
burden squarely lies on the party who asserts that a
property is joint family ancestral property. Such party
must at least produce foundational documents such as
earlier title deeds, mutation extracts, revenue records, or
other contemporaneous records demonstrating that the
property stood in the name of the common ancestor and
thereafter devolved upon the members of the joint family.
In the present case, no such documentary evidence is
forthcoming. Not even revenue records are produced to
indicate that Item Nos.10 to 15 were ever held by the
ancestors of the parties. There is also no cogent oral
evidence explaining the source of acquisition or the
manner in which the properties became part of the joint
family nucleus.

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18. In the absence of specific pleadings detailing
the genealogy, the origin of the property, and its
continued treatment as joint family property, coupled with
the total lack of documentary substantiation, this Court is
constrained to hold that defendant Nos.2 and 3 have
miserably failed to discharge the burden cast upon them.
Consequently, the claim that Item Nos.10 to 15 are joint
family ancestral properties cannot be accepted.
19. The next question that arises for consideration
is whether Item Nos.6 to 9 can be treated as ancestral
properties. A feeble attempt was made by the plaintiff and
defendant Nos.2 and 3 to contend that Item Nos.6 to 8
were ancestral lands and that a charge had been created
over these lands by an order of the Revenue Officer under
the provisions of the Karnataka Land Revenue Act on
account of non-payment of land revenue. However, no
documentary evidence is placed on record to demonstrate
that such charge was merely an encumbrance and that the
lands continued to remain with the family thereafter.

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20. On the contrary, the learned counsel appearing
for the legal heirs of defendant No.1 specifically contended
that Item Nos.6 to 8 are no longer available to the family,
as grants have already been made and third-party rights
have come into existence. Significantly, there is no serious
or effective challenge to this assertion by the contesting
parties. In the absence of rebuttal evidence, this Court
cannot proceed on conjecture that the properties are still
available or that the alleged charge did not culminate in
loss of title.
21. What, therefore, survives for consideration is
Item No.9. It is not in dispute that Item No.9 was
originally an ancestral property. The revenue records
indicate that on account of non-payment of land revenue,
a charge was created over the said property. The RTC
extracts disclose an endorsement that the land is treated
as “pada land.” Though defendant No.1 and his legal heirs
have stoutly contested the claim of defendant Nos.2 and 3
by contending that the land stood lost to the family

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pursuant to a grant made by the State in favour of one
Kempaiah, this contention is not supported by substantive
documentary proof.
22. It is true that there are stray references in
Exs.D-8 and D-14 suggesting certain proceedings.
However, except for these isolated entries, no grant order
issued by the competent authority is produced to
demonstrate that the State, having assumed title over the
property as surplus or otherwise vested land, formally
granted the same to a third party. In the absence of a
valid grant order, mere entries in revenue documents,
without more, cannot conclusively establish divestment of
title.
23. Be that as it may, Exs.D-8 and D-14 assume
significance in determining the fate of Item No.9. These
documents contain entries which may have a material
bearing on the claim put forth by defendant Nos.2 and 3.
In order to appreciate the rival contentions in proper

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perspective, this Court deems it appropriate to extract
Sl.Nos.38, 44, 49 and 71 of Ex.D-8. Similarly, Sl.No.71 in
Ex.D-14 also requires extraction and consideration, as the
said entries are relied upon to substantiate the plea
regarding the alleged grant and consequent divestment of
the family’s interest in Item No.9. The same are extracted
which read as under:
EX.D-8
ªÀÄÄåmÉõÀ£ï
jf¸ÀÖgï zÁR#É
ºÀPÀÄÌzÁgÀgÀ ºÉ¸ÀgÀÄ ªÀÄvÀÄÛ ºÀQÌ£À ¸Àé¨sÁªÀ ¸ÀA§AzsÀªÀżÀî
¸ÀªÉð £ÀA§gÀÄ
ªÀÄvÀÄÛ ¸À¨ï
£ÀA§gÀÄ
35-0
aPÀÌUÉÆëAzÀ¥Àà ©£ï ªÉAPÀ¥Àà PÀ¥À¤ ªÀÄUÀ
38
ªÀÄjAiÀĤAzÀ dÄSÁ£É PÀæAiÀÄ ªÀÄÆ®Ì ¥ÀqÉzÀÄ
C£ÀĨsÀ«¸ÀÄwÛzÁÝ£É 10 ªÀµÀðzÀ C£ÀĨsÀªÀ


43 X X X X X X

zÀgÀR¸ÀÄÛ d«ÄãÀÄ ºÀgÁf£À°è ªÀÄjAiÀÄ ©£À PÀ¥À¤
44
JA§ÄªÀ£À ºÉ¸ÀjUÉ ¤AvÀÄ vÁ.D.¢¢. 1/36.37£ÉÃ
£ÀA§gï ºÀÄPÀÄÌA ¥ÀæPÁgÀ ªÀÄA¨ÉÆgÀVzÉ.
25 2/36-37

48 X X X X X X

ºÀPÀÄÌ §zÀ#ÁªÀuÉ j¥ÉÆÃlÄð PÉA¥ÀAiÀÄå ©£À ZÀ£ÀßAiÀÄå
49
¥sÀqÀPÉÌ zÁR#É. ¸ÀzÀj ¸ÀªÉð 35/38.39£Éà ¸Á#ï
PÀAzÁAiÀÄzÀ ¨ÁQUÉ ºÀgÁeÁV CªÀ#ÁÝgï gÀªÀgÀ
16.11.39£Éà DqÀðgï ªÉÄÃgÉUÉ 39.40£Éà ¸Á°UÉ
¥sÀqÀPÉÌ §A¢gÀÄvÉÛ £ÉÆà £ÀA.441/35.36
35 2/39-40

61 X X X X X X

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63 X X X X X X

RRT 22/77-78
35

22.19
MT 4/77-78

K.G.
²æà ºÉÆ£ÀÄ߸Á ©£À #ÉÃ. aPÁÌUÉÆëAzÀ¥ÀàgÀªÀjUÉ
71
G¢Ý aPÀÌ£ÀºÀ½î UÁæªÀÄzÀ ¸ÀªÉð 35£Éà £ÀA§gï
d«ÄãÀÄ 1938.39£Éà ¸Á°£À°è PÀAzÁAiÀÄzÀ ¨ÁQUÉ
¥sÀqÁPÉÌ §A¢zÀÝgÀ ªÉÄÃgÉ ¸ÀzÀj aPÀÌUÉÆëAzÀ¥Àà£ÀªÀgÀ
K.G.

ªÀÄUÀ ºÉÆ£ÀÄ߸Á gÀªÀjAzÀ ¥ÀÆgÁ PÀAzÁAiÀÄzÀ
RRT
ªÀ¸ÀÆ° ªÀÄÄSÁAvÀgÀ vÀºÀ²Ã#ÁÝgÀ ºÀÄPÀÄÌA £ÀA.
22/77.78
¢£ÁAPÀ 4.11.78gÀAvÉ SÁvÉ zÁR#É
EX.D-14
ªÀÄÄåmÉõÀ£ï
jf¸ÀÖgï zÁR#É
ºÀPÀÄÌzÁgÀgÀ ºÉ¸ÀgÀÄ ªÀÄvÀÄÛ ºÀQÌ£À ¸Àé¨sÁªÀ ¸ÀA§AzsÀªÀżÀî

¸ÀªÉð £ÀA§gÀÄ
ªÀÄvÀÄÛ ¸À¨ï
£ÀA§gÀÄ
K.G.

²æà ºÉÆ£ÀÄ߸Á ©£À #ÉÃ. aPÁÌUÉÆëAzÀ¥ÀàgÀªÀjUÉ
71
G¢Ý aPÀÌ£ÀºÀ½î UÁæªÀÄzÀ ¸ÀªÉð 35£Éà £ÀA§gï
d«ÄãÀÄ 1938.39£Éà ¸Á°£À°è PÀAzÁAiÀÄzÀ ¨ÁQUÉ
¥sÀqÁPÉÌ §A¢zÀÝgÀ ªÉÄÃgÉ ¸ÀzÀj aPÀÌUÉÆëAzÀ¥Àà£ÀªÀgÀ
K.G.

ªÀÄUÀ ºÉÆ£ÀÄ߸Á gÀªÀjAzÀ ¥ÀÆgÁ PÀAzÁAiÀÄzÀ
RRT
ªÀ¸ÀÆ° ªÀÄÄSÁAvÀgÀ vÀºÀ²Ã#ÁÝgÀ ºÀÄPÀÄÌA £ÀA.
RRT 22/77-78
A G


35 22 - 19

22/77.78
¢£ÁAPÀ 4.11.78gÀAvÉ SÁvÉ zÁR#É

24. On a careful and meticulous examination of the
extracts of the endorsements relied upon by the parties, it
becomes abundantly clear that the khata came to be
restored in the name of original defendant No.1 solely on
the premise that he is the son of Govindasa. The
restoration was not on account of any independent title

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acquired by defendant No.1 in his individual capacity, but
only in recognition of his status as a legal heir of the
original holder. The entries do not disclose any fresh
grant, reconveyance, or independent conferment of title
by the State in favour of defendant No.1.
25. The principal contention urged by original
defendant No.1 and his legal representatives is that the
land in question was lost to the family on account of non-
payment of land revenue and that the same stood vested
with the Government, and therefore, upon payment of
arrears and restoration of khata, the property must be
treated as the self-acquired property of defendant No.1.
This contention, however, does not merit acceptance. The
issue as to whether mere forfeiture or creation of a charge
for arrears of land revenue results in absolute vesting of
title in the State has already been considered and
authoritatively answered by this Court in a catena of
decisions.

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26. In particular, the judgment rendered in
Zaheera Banu Kareem vs. Gomathi Bai G. Kamath
(supra) squarely addresses the core controversy. The co-
ordinate Bench, while examining the legal effect of
forfeiture for arrears of land revenue, has clearly held that
mere forfeiture or endorsement for arrears does not
amount to complete divestment of title so as to
permanently vest the property in the State. The creation
of a charge by the Revenue Authorities under the
executive machinery of the Karnataka Land Revenue Act is
essentially a mode of securing recovery of arrears. It does
not ipso facto extinguish proprietary rights. The Bench has
unequivocally observed that once the arrears of land
revenue are paid and the charge is discharged, the
property “stands reverted back to its original position.”
27. The expression “reverted back to its original
position” is of considerable legal significance. It necessarily
presupposes that the property regains the very character
which it possessed prior to the creation of the charge. If

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the land was ancestral in character before the creation of
the revenue charge, the discharge of such charge and
restoration of khata would revive the same ancestral
character. There is no legal transformation of the nature of
the property merely because arrears were paid by one of
the coparceners.
28. It is also important to bear in mind that when
land revenue is not paid and a charge is created over
agricultural lands, the family does not lose the land in the
sense of complete divestment. There is no automatic
vesting in favour of the State in the absence of a statutory
sale or grant in favour of a third party pursuant to due
process. The endorsement of “PADA” in the revenue
records, as reflected in the RTC, is indicative of a
subsisting charge over the property. It is a fiscal entry
signifying that the land is encumbered on account of
arrears. It does not denote absolute vesting of title in the
State.

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29. The learned counsel Sri. Nitish, appearing for
defendant No.1, advanced a rather intricate proposition
that there was complete severance among the brothers
and that in the absence of a joint family nucleus, the act of
defendant No.1 in approaching the revenue authorities and
paying the arrears of land revenue should be construed as
an act of acquisition in his individual capacity, thereby
rendering the property his self-acquired property. Though
the submission appears attractive at first blush, on deeper
scrutiny, it cannot be sustained in law.
30. If defendant No.1 had not been the son of
Govindasa, the revenue authorities would not have
restored the katha in his favour. The very basis for
restoration was his representative capacity as a legal heir
of the original holder. It is nobody’s case that after alleged
vesting, the Government, in exercise of sovereign power,
independently re-granted or reconveyed the land to
defendant No.1 treating him as a fresh grantee in his
personal capacity. No grant order, no sanad, nor any

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document evidencing independent conferment of title is
forthcoming.
31. The restoration of khata under the provisions of
the Karnataka Land Revenue Act must therefore be
understood in its proper legal context. It was an
administrative act recognizing the discharge of arrears and
restoring the revenue entry to the name of the person
representing the original tenure holder. Such restoration
cannot be equated to a fresh acquisition of title. Payment
of arrears by one coparcener to remove an encumbrance
over joint family property does not metamorphose the
character of the property into his separate property. At
best, he may be entitled to seek equitable adjustment or
reimbursement in appropriate proceedings, but he cannot,
by unilateral payment of revenue arrears, appropriate the
entire ancestral property to himself.
32. Therefore, the restoration of khata in favour of
defendant No.1 has to be construed as restoration on

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behalf of the entire joint family and not in his individual
capacity. The property, having originally been ancestral
and having merely been subjected to a revenue charge,
regained its ancestral character upon discharge of arrears.
It did not assume the character of self-acquisition of
defendant No.1.
Accordingly, Point No.(i) is answered in the
Negative and Point No.(ii) is answered in the
Affirmative .

Finding on Point No.(iii):
33. On a careful perusal of the unregistered
document relied upon by defendant No.1, which is marked
as Ex.D-28, it is evident that defendant No.3 and his
children have made certain recitals acknowledging
defendant No.1 as the absolute owner of the suit schedule
property. The pivotal question that arises for consideration
in the present appeal is: whether such an admission,

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embodied in an unregistered document, is sufficient in law
either to create title in favour of defendant No.1 or to
extinguish the pre-existing rights of defendant No.3 and
his children in the coparcenary property.
34. At the outset, it must be borne in mind that
under Hindu law, the right of a coparcener in joint family
property is not a right created by contract or conveyance;
it is a pre-existing right. Such right accrues by birth in a
Mitakshara coparcenary, as statutorily recognized under
Section 6 of the Hindu Succession Act, 1956 (as
amended), and may also devolve by inheritance under
Section 8 in appropriate circumstances. A coparcener’s
interest is inherent in the very status of being a member
of the joint family. It is neither contingent upon
acknowledgment by another member nor dependent upon
any formal instrument for its existence.
35. Once such a pre-existing right inheres in a
coparcener by birth, it cannot be divested or extinguished

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except in a manner known to law namely, by a registered
instrument of release or relinquishment, by a lawful
partition, or by operation of a statutory provision. A mere
unregistered document containing an admission or
acknowledgment cannot, by itself, operate as a
conveyance of title. Nor can it amount to a legally valid
relinquishment of coparcenary rights, particularly when
the subject matter relates to immovable property of
significant value.
36. In the case on hand, Ex.D-28 is admittedly an
unregistered document. Even assuming that defendant
No.3 and his children have acknowledged defendant No.1
as the absolute owner therein, such acknowledgment
cannot, in the eye of law, amount to a valid transfer,
release, or extinguishment of their rights in Item No.9. If,
at all the document purports to relinquish or declare
exclusive ownership in favour of defendant No.1 in respect
of immovable property, it would compulsorily require
registration under the provisions of the Registration Act. In

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the absence of registration, the document cannot affect
immovable property nor can it be received as evidence of
any transaction affecting such property, except for
collateral purposes.
37. The submission that defendant No.3 and his
children, due to illiteracy or lack of awareness, executed
such a document further reinforces the need for strict
scrutiny. However, even dehors such considerations, the
legal position remains unchanged: a coparcener’s right by
birth cannot be extinguished by a mere unregistered
agreement. The law does not countenance deprivation of
proprietary rights in coparcenary property through
informal or legally unenforceable instruments.
38. Equally untenable is the contention that the
doctrine of estoppel should operate against defendant
No.3 and his children on the basis of Ex.D-28. The doctrine
of estoppel cannot be invoked to defeat a statutory or pre-
existing right in immovable property. Estoppel is a rule of

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evidence; it cannot create or extinguish title where none
exists in law. When a party possesses a pre-existing legal
right in coparcenary property, an admission in an
unregistered document cannot estop him from asserting
such right in a properly instituted partition suit.
39. It is well settled that in a suit for partition, the
Court does not confer title for the first time. The Court
merely declares and works out the pre-existing rights of
the parties. Each coparcener holds an undivided interest in
every inch of the joint family property until partition.
Therefore, any assertion that such right stands
extinguished by virtue of an unregistered acknowledgment
is contrary to settled principles governing Hindu joint
family property.
40. In that view of the matter, this Court is of the
considered opinion that Ex.D-28 does not and cannot
extinguish the rights of defendant No.3 and his children in
Item No.9. Their coparcenary rights, being pre-existing

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and statutorily recognized, remain unaffected by the said
unregistered document.
Accordingly, Point No.(iii) is answered in the
Negative .
Finding on Point No.(iv):
41. It is a well-settled and trite proposition of law
that a suit for partition stands on a distinct and unique
footing when compared to ordinary adversarial civil
proceedings. In a typical civil suit, the plaintiff asserts a
cause of action and seeks specific relief against the
defendant, who, in turn, may set up an independent claim
by way of a counterclaim under the provisions of Order
VIII Rule 6-A of the Code of Civil Procedure. However, the
jurisprudential framework governing a partition suit is
fundamentally different.
42. In a partition suit, the lis is not in the nature of
a claim by one party against another for an independent

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cause of action. Rather, it is a collective adjudication of
pre-existing rights among co-owners or coparceners. Time
and again, this Court in a catena of judgments has
consistently held that in a partition action, every
coparcener or co-owner is, in substance, a plaintiff. The
mere fact that some parties are arrayed as defendants is a
matter of procedural convenience and not of substantive
character. The Court, while adjudicating a partition suit, is
duty-bound to ascertain and declare the respective shares
of all sharers, irrespective of whether they have sought
relief in a formal manner.
43. Learned counsel Sri. Nitish has placed reliance
on the judgment in The Trading Corporation of India
Limited, Bangalore vs. Vanivilas Co-operative Sugar
Factory Limited, Hiriyur, Chitradurga District (supra),
to contend that in the absence of a properly instituted
counterclaim and payment of requisite court fee,
defendant Nos.2 and 3 cannot seek affirmative relief. The
principles laid down in the said judgment, however, are

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rendered in the context of ordinary civil disputes where a
counterclaim constitutes a cross-suit requiring
independent compliance with procedural requirements,
including valuation and payment of court fee.
44. The ratio of the said decision cannot be
mechanically extended to a partition suit. In a partition
action, a defendant who asserts a share in the joint family
property is not setting up a counterclaim in the strict
sense of Order VIII Rule 6-A CPC. He is merely asserting
his pre-existing right as a coparcener or co-owner in the
very subject matter of the suit. Such an assertion is
intrinsic to the nature of partition proceedings. The Court,
once seized of a partition suit, cannot confine itself to the
claim of the plaintiff alone but must determine the rights
of all sharers and effectuate a complete and final partition.
45. Therefore, the plea that defendant Nos.2 and 3
are disentitled to seek partition on the ground that they
have not filed a counterclaim is misconceived. In the

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context of a partition suit, there is, strictly speaking, no
necessity for a counterclaim in order to work out the share
of a defendant who is admittedly a coparcener.
46. As regards the objection relating to non-
payment of court fee, it is equally well settled that in
partition suits, deficiency of court fee does not operate as
a substantive bar to adjudication of rights. The liability to
pay court fee is a matter between the litigant and the
State. The Court is empowered to direct payment of
proper court fee at any stage of the proceedings. Non-
payment or deficit payment does not extinguish the
substantive right of a coparcener to seek partition of joint
family property. At best, it is a curable procedural defect.
47. In the present case, even assuming that
defendant Nos.2 and 3 have not deposited the requisite
court fee while asserting their share, such omission cannot
be construed as a bar to enforcement of their right to
partition. The appropriate course would be to direct them

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to make good the deficit court fee within a stipulated time.
Once such compliance is ensured, there remains no
impediment to granting relief.
48. Accordingly, the contention founded on the
absence of a counterclaim and non-payment of court fee is
liable to be rejected. Point No.(iv) is answered in the
Negative , subject to defendant Nos.2 and 3 depositing
the requisite court fee before this Court within the time
granted.

Finding on Point No.(v):
49. For the foregoing reasons, this Court proceeds
to pass the following:
ORDER
(i) The appeal is allowed in part ;
(ii) The judgment and decree dated
18.09.2010 passed in O.S.No.5734/1994 is
partly modified insofar as the counter claim set

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rd
up by defendant Nos.2 and 3 of their 1/3 share
each in the suit schedule property is concerned;
(iii) The defendant Nos.2 and 3 are
rd
entitled for 1/3 share each in Item No.9 subject
to deposit of court fee before this Court;
(iv) The rest of the decree stands
affirmed;
(v) Office shall draw the preliminary
decree only after deposit of court fee.
SD/-
(SACHIN SHANKAR MAGADUM)
JUDGE





CA
List No.: 1 Sl No.: 16