Karnataka High Court
T G Manjunath vs Sri J T Gnanamurthy on 6 November, 2025
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NC: 2025:KHC:45207
RSA No. 1636 of 2013
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1636 OF 2013 (PAR)
BETWEEN:
1. T G MANJUNATH
AGED ABOUT 23 YEARS,
S/O J.T. GNANAMURTHY,
RESIDING AT KONDLAHALLI VILLAGE,
MOLAKALMAURU TALUK,
CHITRADURGA DISTRICT - 577 501
2. T.G. THIPPESWAMY
AGED ABOUT 22 YEARS,
S/O J.T. GNANAMURTHY,
RESIDING AT KONDLAHALLI VILLAGE,
MOLAKALMURU TALUK,
CHITRADURGA DISTRICT - 577 501
Digitally
signed by 3. T.G. SUNITHA
SUNITHA K S AGED ABOUT 21 YEARS,
Location: D/O J.T. GNANAMURTHY,
HIGH COURT
OF RESIDING AT KONDLAHALLI VILLAGE,
KARNATAKA MOLAKALMURU TALUK,
CHITRADURGA DISTRICT - 577 501
...APPELLANTS
(BY SRI. SIDDAPPA B M., ADVOCATE)
AND:
1. SRI J T GNANAMURTHY
AGED ABOUT 57 YEARS,
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NC: 2025:KHC:45207
RSA No. 1636 of 2013
HC-KAR
S/O G. THIPPAIAH,
RESIDING AT KONDLAHALLI VILLAGE,
MOLAKALMURU TALUK,
CHITRADURGA DISTRICT - 577 501
2. SMT. SHANTHAMMA
AGE: 44 YEARS,
W/O J.T. GNANAMURTHY,
RESIDING AT KONDLAHALLI VILLAGE,
MOLAKALMURU TALUK,
CHITRADURGA DISTRICT -577 501
3. B.T. BASAVARAJU
AGE ABOUT 42 YEARS,
S/O B.K THIPPESWAMY,
RESIDING AT KONDLAHALLI VILLAGE,
MOLAKALMURU TALUK,
CHITRADURGA DISTRICT - 577 501
...RESPONDENTS
(R1 AND R2 ARE SERVED
SRI. SAMPATH BAPAT, ADVOCATE FOR R3)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGEMENT & DECREE DTD 6.7.2013 PASSED IN
R.A.NO.1/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE,
CHALLAKERE, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 13.12.2012 PASSED IN
O.S.NO.97/2011 ON THE FILE OF THE CIVIL JUDGE & JMFC.,
MOLAKALMURU.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI
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NC: 2025:KHC:45207
RSA No. 1636 of 2013
HC-KAR
ORAL JUDGMENT
1. This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 06.07.2013 passed in R.A. No.1 of 2013 by the learned Senior Civil Judge, Challakere and the judgment and preliminary decree dated 13.12.2012 passed in O.S. No.97 of 2011 by the learned Civil Judge and JMFC, Molakalmuru.
2. For convenience, the parties are referred to based on their ranking before the Trial Court. The appellants were the plaintiffs and the respondents were the defendants.
3. Brief facts leading rise to the filing of this appeal are as follows:
4. The plaintiffs filed a suit against the defendants for declaration to declare the registered sale deed dated 19.04.1993 as null and void, and not binding on the share of the plaintiffs, and to cancel the sale deed -4- NC: 2025:KHC:45207 RSA No. 1636 of 2013 HC-KAR dated 19.04.1993 executed by defendant Nos.1 and 2 in favour of defendant No.3.
5. It is the case of the plaintiffs that plaintiff Nos.1 and 2 are the sons, and plaintiff No.3 is the daughter of defendant Nos.1 and 2. The suit schedule properties are the ancestral properties of the plaintiffs and defendant Nos.1 and 2. The plaintiffs and defendant Nos.1 and 2 are the members of a Hindu Undivided Family and no partition is effected between the plaintiffs and defendant Nos.1 and 2.
6. It is contended that defendant Nos.1 and 2 had no right to sell the suit schedule property in favour of defendant No.3. The sale deed executed by defendant Nos.1 and 2 in favour of defendant No.3 is not binding on the share of the plaintiffs. Hence, this suit.
7. Defendant Nos.1 and 2 filed a written statement admitting the relationship between the plaintiffs and -5- NC: 2025:KHC:45207 RSA No. 1636 of 2013 HC-KAR defendant Nos.1 and 2, and also that the suit schedule property is the ancestral property and they are the members of a Hindu Undivided family. It is contended that the suit schedule property was owned and possessed by one Jalimarada Thippaiah i.e., the grandfather of the plaintiffs and the father of defendant No.1 and he acquired the said property in a partition and the khata was changed in the name of defendant Nos.1 and 2. Further, the above said defendants supported the claim of the plaintiffs and prayed to decree the suit.
8. Defendant No.3 filed a written statement denying the averments made in the plaint and contended that the suit filed by the plaintiffs is a collusive suit and defendant Nos.1 and 2, to extract more money from defendant No.3, got filed the present suit through the plaintiffs and it is contended that the suit schedule property fell to the share of defendant No.1 in a partition deed effected on 16.04.1992 and -6- NC: 2025:KHC:45207 RSA No. 1636 of 2013 HC-KAR defendant Nos.1 and 2 jointly sold the suit schedule property in favour of defendant No.3 and executed the registered sale deed dated 19.04.1993 after receiving the valid consideration amount and defendant Nos.1 and 2 delivered the possession of the suit schedule property in favour of defendant No.3. Defendant No.3 became the absolute owner of the suit schedule property by virtue of a registered sale deed executed by defendant Nos.1 and 2 in favour of defendant No.3. It is further contended that defendant No.3, by virtue of the sale deed, is in lawful possession and enjoyment of the suit schedule property. Hence, the suit filed by the plaintiffs is not maintainable and it is also contended that the plaintiffs have not included the other ancestral properties. The suit for a partial partition is not maintainable. Hence, prays to dismiss the suit against defendant No.3.
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NC: 2025:KHC:45207 RSA No. 1636 of 2013 HC-KAR
9. The Trial Court, based on the rival pleadings of the parties, framed the following issues:
" 1) ಾ ಾ ಆ ಾ ಗಳ ಮತು ಪ ಾ ನಂ.1 ಮತು 2
ರವರ ಾ ತ ಾದ ಾಗೂ ಒಟು ಕುಟುಂಬದ ಆ
ಆ!ರುತ ೆ ಎಂಬುದನು$ ಾ ಗಳ%
ರುಜು ಾತುಪ' ರುವ(ೇ?
2) ಾ ಗ*+ೆ ಾ ಾ ಆ ಯ-. ಒಟು 3/4/ೇ 0ಾ+ಾಂಶದ
ಹಕು3 ಇರುತ ೆ ಎಂಬುದನು$ ಾಗೂ ಆ ಆ ಯನು$
ಪ ೆ5ೕಕ 6ಾ78ೕನ ೊಂದಲು ಅಹ ರು ಎಂಬುದನು$
ಾ ಗಳ% ರುಜು ಾತುಪ' ರುವ(ೇ?
3) /ಾಂಕಃ 19.04.1993 ರಂದು 1 ಮತು 2/ೇ
ಪ ಾ ಗಳ% 3/ೇ ಪ ಾ +ೆ ಬ(ೆದು<ೊ= ರುವ
PÀæAiÀÄ ಪತ ವ> ಾ ಗಳ ಹಕ3ನು$ ಬದ?ಪ'ಸುವ> ಲ.
ಎಂಬುದನು$ ಾ ಗಳ% 6ಾAೕತುಪ' ರುವ(ೇ?
4) ಾ ಗಳ% ಈ ಾ ೆಯ-. <ೋCರುವ ಪC ಾರವನು$
ೊಂದಲು ಅಹ (ೇ?
5) Dಾಡುವ ಆFೆ ಅಥ ಾ 'H ಏನು?"
10. The plaintiffs, to substantiate their case, plaintiff No.2 was examined as PW-1, examined two witnesses as PW-2 and PW-3 and marked five documents as Exhibits P-1 to P-5. Defendant No.3 -8- NC: 2025:KHC:45207 RSA No. 1636 of 2013 HC-KAR was examined as DW-1, examined one more witness as DW-2 and marked two documents as Exhibits D1 and D2.
11. The Trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issue No.1 in the affirmative; issue Nos.2 to 4 in the negative; and issue No.5, as per the final order. The suit of the plaintiffs was dismissed with costs vide judgment dated 13.12.2012.
12. The plaintiffs, aggrieved by the dismissal of the suit in O.S. No.97 of 2011 preferred an appeal in R.A. No.1 of 2013 on the file of the learned Senior Civil Judge, Challakere.
13. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:
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NC: 2025:KHC:45207 RSA No. 1636 of 2013 HC-KAR
1. Whether the lower Court is justified in dismissing the suit of the plaintiffs in O.S.No.97/2011 on 13.12.2012?
2. Whether interference of this Court in the judgment and decree passed by trial Court is needed?
3. What order or decree?
14. The First Appellate Court, after re-appreciating the entire evidence on record, answered point No.1 in the affirmative; point No.2 in the negative and point No.3, as per the final order; consequently, the appeal was dismissed vide judgment dated 06.07.2013.
15. The plaintiffs, aggrieved by the impugned judgment, filed this Regular Second Appeal.
16. Heard the learned counsel for the plaintiffs and the learned counsel for defendant No.3. Defendant Nos.1 and 2, though notice was served, remained unrepresented in this appeal.
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NC: 2025:KHC:45207 RSA No. 1636 of 2013 HC-KAR
17. Learned counsel for the plaintiffs submits that the suit schedule property is the ancestral property of the plaintiffs and defendant Nos.1 and 2, and the plaintiffs are the coparceners and having a share in the suit schedule property. He submits that the plaintiffs and defendant Nos.1 & 2 are the members of a Hindu Undivided Family and no partition is effected among them. He submits that the Trial Court committed an error in dismissing the suit on the ground that the suit for partial partition is not maintainable. He also submits that the First Appellate Court has not re-appreciated the entire evidence on record in proper perspective and has confirmed the judgment and preliminary decree passed by the Trial Court. Hence, he submits that the impugned judgments passed by the Courts below are arbitrary and erroneous. Hence, on these grounds, prays to allow the appeal.
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NC: 2025:KHC:45207 RSA No. 1636 of 2013 HC-KAR
18. Per contra, learned counsel for defendant No.3 submits that a partition was effected between defendant No.1 and his brothers in 1992 and in the said partition, the suit schedule property fell to the share of defendant No.1, and defendant Nos.1 and 2 have jointly sold the suit schedule property in favour of defendant No.3 for family and legal necessity.
19. There is a recital in the registered sale deed regarding a family and legal necessity. He submits that the deposition of the plaintiffs is inadmissible in evidence insofar as legal necessity is concerned. The plaintiffs by way of oral evidence cannot contradict or vary the terms of an instrument as per Section 92 of the Indian Evidence Act.
20. He also submits that the plaintiffs have not included other joint family properties. Hence, a suit for partial partition is not maintainable. Thus, the Courts below
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NC: 2025:KHC:45207 RSA No. 1636 of 2013 HC-KAR have rightly passed the impugned judgments. Hence, on these grounds, prays to dismiss the appeal.
21. This Court admitted the appeal to consider the following substantial questions of law:
"1. Whether both the Courts below justified in recording the finding that sale deed executed by defendants 1 and 2 in favour of defendant No.3 is binding on plaintiffs in the absence of proof of legal necessity?
2. Whether both the Courts below are justified in dismissing the suit ignoring the finding that defendant No.3 has failed to prove the legal necessity?
3. Whether the findings by Court of facts vitiated by non consideration of relevant evidence?"
Reg. Substantial Questions of Law:
22. All the substantial questions of law are interlinked and hence, taken together for common discussion to avoid repetition of facts.
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NC: 2025:KHC:45207 RSA No. 1636 of 2013 HC-KAR
23. The plaintiffs, to substantiate their case, plaintiff No.2 was examined as PW-1. He has deposed that the suit schedule property was originally owned and possessed by the grand-father of the plaintiffs and the father of defendant No.1. After his demise, the plaintiffs and defendant No.1 succeeded to the suit schedule property. The suit schedule property is the ancestral property of the plaintiffs and defendant No.1 and they are the members of a Hindu Undivided Family and no partition has been effected between them in respect of the suit schedule property. Defendant Nos.1 and 2 have no right to execute a registered sale deed in favour of defendant No.3 and the said sale is not for a family and legal necessity and the sale deed executed by defendant Nos.1 and 2 is not binding on the plaintiffs.
24. To prove that the suit schedule property was the ancestral property, plaintiffs have produced the documents Exhibit P-1 is the genealogical tree which
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NC: 2025:KHC:45207 RSA No. 1636 of 2013 HC-KAR discloses that defendant No.1 is the father and defendant No.2 is the mother of the plaintiffs; Exhibit P-2 is the RTC extract of suit schedule property; Exhibit P-3 is the certified copy of the sale deed executed by defendant Nos.1 and 2 in favour of defendant No.3; Exhibit P-4 is the nil encumbrance certificate; Exhibit P-5 is the partition deed which discloses that defendant No.1 acquired the suit schedule property in a partition effected between him and his siblings.
25. During the cross-examination of PW-1, it is elicited that the plaintiffs' family is possessing other properties and the said other properties were not the subject matter of the suit.
26. In rebuttal, defendant No.3 was examined as DW-1.
He reiterated the written statement averments in the examination-in-chief and produced the documents as
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NC: 2025:KHC:45207 RSA No. 1636 of 2013 HC-KAR Exhibit D-1, the sale deed dated 19.04.1993 and Exhibit D-2 is the certified copy of the RTC extract;
27. A perusal of the documents disclosed that, the plaintiffs filed a suit for declaration, that the registered sale deed executed by defendant Nos.1 and 2 in favour of defendant No.3 is not binding on the share of the plaintiffs. The Courts below concurrently recorded a finding that PW-1 in the cross-examination has admitted that his father had sold some other properties also. But, the plaintiffs did not included the other ancestral and joint family properties. The First Appellate Court has recorded a finding that the sale is for the family and legal necessity and defendant No.1 being the Manager and Kartha of the family had sold the suit schedule property; and as of the date of execution of the registered sale deed by defendant Nos.1 and 2 in favour of defendant No.3, the plaintiffs were minors.
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NC: 2025:KHC:45207 RSA No. 1636 of 2013 HC-KAR There is a recital in the registered sale deed regarding the legal necessity.
28. It is submitted by the learned counsel for the plaintiffs that, the plaintiffs were not parties to the registered sale deed, as such, the said sale deed is not binding on their share and that, both the Courts below have recorded a finding that the sale deed executed by defendant Nos.1 and 2 in favour of defendant No.3 is not binding on the share of the plaintiffs.
29. It is pertinent to note that there is a recital in Exhibit D-1 regarding the sale was for legal necessity. Thus, in view of Section 92 of the Evidence Act, the plaintiffs cannot contradict to the terms of Ex.D1, by way of oral evidence. However, there is no rebuttal evidence on behalf of the plaintiffs and defendant Nos.1 and 2. Further, defendant Nos.1 and 2 have not entered the witness box. The conduct of
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NC: 2025:KHC:45207 RSA No. 1636 of 2013 HC-KAR defendant Nos.1 and 2 discloses that defendant Nos.1 and 2 got filed the present suit through the plaintiffs only in respect of the property sold in favour of defendant No.3 without including the other ancestral properties. In the circumstances, both the Courts have observed that the total extent of suit schedule property is 1 acre 21 guntas, and, out of which only 05 guntas was sold to defendant No.3 and that the plaintiffs can claim a share in the remaining 01 acre 16 guntas of suit schedule property.
30. Thus, both the Courts have assigned detailed reasons while passing the impugned judgments. In view of the above discussion, I do not find any error in the impugned judgments.
31. Thus, I answer Substantial Question of Law Nos.1 and 2 in the affirmative and Substantial Question of Law No.3 in the negative.
32. Accordingly, I proceed to pass the following order:
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NC: 2025:KHC:45207
RSA No. 1636 of 2013
HC-KAR
ORDER
(i) The Regular Second appeal is
dismissed.
(ii) The impugned judgments and
decrees passed by the Courts
below are hereby confirmed.
(iii) Liberty is reserved to the plaintiffs to file a suit for partition and separate possession, in respect of remaining land measuring 01 acre 16 guntas of suit schedule property, if so advised.
Sd/-
(ASHOK S.KINAGI) JUDGE RK List No.: 2 Sl No.: 8