Karnataka High Court
Shri Mallikarjun S/O Babagouda Patil vs Shri Nirmala W/O Iranagouda Patil on 3 March, 2025
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NC: 2025:KHC-D:4152-DB
RFA No. 100560 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF MARCH, 2025
PRESENT
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
REGULAR FIRST APPEAL NO.100560 OF 2022 (PAR/POS)
BETWEEN:
SHRI MALLIKARJUN,
S/O BABAGOUDA PATIL
AGE: 67 YEARS, OCC: BUSINESS,
R/O: LIG-143, MAHANTESH NAGAR,
BELAGAVI -591313.
...APPELLANT
(BY SRI. DINESH M. KULKARNI, ADVOCATE)
AND:
1. SHRI NIRMALA
Digitally signed
W/O IRANAGOUDA PATIL,
by
MALLIKARJUN
RUDRAYYA
AGE: 66 YEARS, OCC: HOUSEHOLD,
KALMATH
Location: HIGH
COURT OF
R/O: NO.1073, RAMTEERTH NAGAR,
KARNATAKA
BELAGAVI -590016.
2. SHRI RAOSAHEB
S/O BABAGOUDA PATIL
AGE: 72 YEARS, OCC: BUSINESS,
R/O: PLOT NO. 640, DOUBLE ROAD STREAMS,
SECTOR NO.5, SHREENAGAR,
BELAGAVI -590016.
3. SHRI VIJAYKUMAR,
S/O BABAGOUDA PATIL,
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NC: 2025:KHC-D:4152-DB
RFA No. 100560 of 2022
AGE: 69 YEARS, OCC: BUSINESS,
R/O: H.NO.1865, CHANNAGOUDA GALLI,
SANKESHWAR, TQ: HUKKERI,
BELAGAVI-591313.
4. SHRI MALLIKARJUN,
S/O BABAGOUDA PATIL
AGE: 67 YEARS, OCC: SERVICE,
R/O: LIG-143, MAHANTESH NAGAR,
BELAGAVI -590016.
DELETED AS PER COURT ORDER DATED 02.03.2023.
5. SHRI BASAVARAJ,
S/O BABAGOUDA PATIL,
AGE: 64 YEARS, OCC: BUSINESS,
R/O: NO. 1865, CHANNAGOUDA GALLI,
SANKESHWAR, TQ: HUKKERI,
DIST: BELAGAVI -591313.
6. SHRI RAJSHEKAR,
S/O BABAGOUDA PATIL,
AGE: 59 YEARS, OCC: PVT. SERVICE,
R/O: NO. 1865, CHANNAGOUDA GALLI,
SANKESHWAR, TQ. HUKKERI,
DIST: BELAGAVI -591313.
7. SHRI ASHWIN,
S/O SIDAGOUDA PATIL,
AGE: 53 YEARS, OCC: SERVICE,
R/O: FLAT NO. 3 & 4 PLOT NO. 277,
ADITYA APPT., AGARKAR ROAD,
TILAKWADI, BELAGAVI-590006.
8. SHRI SAMEER,
S/O SIDANGOUDA PATIL,
AGE: 51 YEARS, OCC: SERVICE,
R/O: FLAT NO. 3 & 4 PLOT NO.277,
ADITYA APPT., AGARKAR ROAD,
TILKAWADI, BELAGAVI-590006.
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NC: 2025:KHC-D:4152-DB
RFA No. 100560 of 2022
9. SMT. MANJULA,
W/O BASAVARAJ MANGAVI,
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O: CTS NO.2556, CHANNAGOUDA GALLI,
SANKESHWAR, TQ: HUKKERI,
DIST: BELAGAVI-591313.
10. THE CHAIRMAN,
AL MEHADI CO-OPERATIVE CREDIT SOCIETY LTD.,
CTS NO. 2570/1 & 2570/2,
SANKESHWAR, TQ: HUKKERI,
DIST: BELAGAVI-591313.
11. SHRI CHANDRUGOUDA @ CHANDRASHEKAR,
S/O ANNASAHEB PATIL,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: CTS NO.2556,
CHANNAGOUDA GALLI,
SANKESHWAR, TQ: HUKKERI,
DIST: BELAGAVI-591313.
12. SHRI SHANKARGOUDA @ SHIVAKUMAR,
S/O ANNASAHEB PATIL,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: CTS NO.2556,
CHANNAGOUDA GALLI,
SANKESHWAR, TQ: HUKKERI,
DIST: BELAGAVI-591313.
13. SHRI ALAGOUDA,
S/O BHIMAGOUDA PATIL,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: CTS NO.2556, CHANNAGOUDA GALLI,
SANKESHWAR, TQ: HUKKERI,
DIST: BELAGAVI- 591313.
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NC: 2025:KHC-D:4152-DB
RFA No. 100560 of 2022
14. THE MANAGER,
JAGGAJYOTI SHRI BASAWESHWAR SOUHARD
CO-OPERATIVE CREDIT SOCIETY LTD.,
SANKESHWAR,
TQ: HUKKERI, DIST: BELAGAVI-591313.
15. THE MANAGER,
UNION BANK OF INDIA,
BRANCH TILAKWADI,
BELAGAVI-590006.
16. SHRI SHIVANAND,
S/O CHANDRASHEKAR SHENDURI,
AGE: 46 YEARS, OCC: BUSINESS,
R/O: CTS NO. 2555, SANKESHWAR,
TQ: HUKKERI, DIST: BELAGAVI-591313.
...RESPONDENTS
(BY SRI. VITTHAL S. TELI, ADVOCATE FOR R1;
SRI. KIRANKUMAR S. CHATTIMATH, ADV. FOR R2 & R5;
SRI. GIRISH S. HULMANI, ADVOCATE FOR R15;
SRI. NEELENDRA D. GUNDE, ADVOCATE FOR R10;
R4- DELETED;
R3, R6 TO R9, R11 TO R14 AND R16 NOTICE DISPENSED
WITH)
THIS RFA FILED UNDER SECTION 96 READ WITH ORDER
41 RULE 1 OF CPC, 1908, AGAINST THE JUDGMENT AND
DECREE DATED 29.03.2022 PASSED IN O.S.NO.312/2014 ON
THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND
CHIEF JUDICIAL MAGISTRATE, BELAGAVI, PARTLY DECREEING
THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
HON'BLE MR. JUSTICE G BASAVARAJA
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NC: 2025:KHC-D:4152-DB
RFA No. 100560 of 2022
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) This appeal is by the defendant No.3 assailing the Judgment and decree dated 29th March, 2022 rendered in O.S.No. 312/2014 by the I Additional Senior Civil Judge and CJM, Belagavi, wherein the plaintiff's suit is partly decreed by granting 1/7th share in Schedule 'A' Property and 1/7th share in the half share held by the plaintiff's father in items No.1 to 8 and 10 of Schedule 'B' property. Plaintiff's suit, however, is dismissed insofar as Item No.9, 11 and 12 of Schedule 'B' Property is concerned, on the ground that the suit is instituted without complying with the statutory requirement of issuance of notice under Section 125 of the Karnataka Co-operative Societies Act, 1959.
2. For the sake of brevity, the parties are referred to as per their rank before the trial Court.
3. Before this Court delves into the matter, we deem it necessary to cull out the family tree which is furnished along with the appeal memo. The same is extracted as under: -6-
NC: 2025:KHC-D:4152-DB RFA No. 100560 of 2022 Babagouda - died on 04.09.1996 Kamaladevi - wife dead Raosaheb Viayakumar Mallikarjum Basavaraj Rajshekhar Kasturi Nirmala (D1) (D2) (D3) (D4) (D5) (Dead) (Plaintiff) Ashwin (D6) Sameer (D7)
4. The Suit is by the sister primarily against her brothers who are arrayed as defendants 1 to 5. Defendants 6 and 7 are niece and nephew respectively and children of pre- deceased sister viz. Kasturi. One Babagouda is shown to be the propositus who had a wife by name Kamaladevi. The said propositus and Kamaladevi are said to have seven children (5 sons and 2 daughters). Plaintiff is the youngest sibling. Plaintiff asserts that the suit schedule properties are the ancestral properties and therefore, she is entitled to her legitimate share in the suit schedule properties. According to plaintiff, Schedule 'A' property is the house property bearing LIG No.143 CTS No.9583 situated at Mahantesh Nagar, Belagavi. Plaintiff asserts that this property is owned by her father Babagouda who purchased it from Karnataka Housing Board. Plaintiff has further specifically pleaded that items 1 to 4 of Schedule 'B' property situate at Sankeshwar were also originally owned by her father Babagouda. Plaintiff asserts that -7- NC: 2025:KHC-D:4152-DB RFA No. 100560 of 2022 after the death of her father-Babagouda, plaintiff and defendants have succeeded to the suit schedule properties and therefore, she claimed to be in joint possession and enjoyment over all the suit schedule properties. Present suit is filed alleging that defendants 1 to 5 have sold the suit schedule properties despite there being no partition by metes and bounds. It is further alleged that the plaintiff recently came to know about this alienation when she obtained property extract on 21st March, 2014. Plaintiff therefore claims that defendants had no absolute title and therefore they could not have ventured in selling the joint family properties.
5. Defendant No.3, on receipt of summons, has tendered appearance and has contested the suit. Defendant No.3 has filed written statement and stoutly denied the entire averments of the plaint. Defendant No.3, however, had set up a plea of prior partition in the family. According to defendant No.3, the mother Kamaladevi, resolved to effect partition in the family and therefore, she conveyed all her children to assemble in the month of August, 1998 and the terms of the partition were decided through the mother of plaintiff and defendants 1 to 5. As per the version of the defendant No.3, a specific -8- NC: 2025:KHC-D:4152-DB RFA No. 100560 of 2022 defence is raised that since the plaintiff was being tortured by her in-laws, the mother advised all the defendants to gift six acres of agriculture land to the father-in-law of plaintiff. Defendant No.3 also alleges that the propositus-Babagouda was also compelled to transfer one share of Hira Sugar Factory in the name of the plaintiff. Therefore, defendant No.3 contended that suppressing all these material facts, the present suit is filed only to blackmail and harass the defendant No.3. Defendant No.3 further claims that though Schedule 'A' plot was allotted to plaintiff's father, however he claimed that the entire sale consideration while securing the lease-cum-sale agreement, was paid solely by defendant No.3 out his salary. Therefore, defendant No.3 specifically pleaded that the father had given an indication to family members that in the event a partition is effected in the family, Schedule 'A' property should be allotted to the defendant No.3. Citing family arrangement, the defendant No.3 sought dismissal of the partition suit.
6. Trial Court having formulated issues, assessed the oral and documentary evidence let in by both the parties. In absence of rebuttal evidence, trial Court was of the view that the plaintiff has succeeded in substantiating that Schedule 'A', -9- NC: 2025:KHC-D:4152-DB RFA No. 100560 of 2022 'B' and 'C' properties are joint family properties. Therefore, trial Court proceeded to partly decree the suit thereby granting legitimate share to the plaintiff. While suit was dismissed insofar as items 9, 11 and 12 of Schedule 'B' properties, Plaintiff has not chosen to challenge the partial dismissal before this Court in the light of liberty reserved to plaintiff to comply Section 125 of Karnataka Co-operative Societies Act and thereafter seek proper remedy at the hands of competent Civil Court. Feeling aggrieved by the judgment and decree, more particularly granting of share in Schedule 'A' Property, defendant No.3 is before this Court.
7. Sri Dinesh M Kulkarni, learned Counsel appearing for defendant No.3, has vehemently argued reiterating the grounds urged in the appeal memo. Learned Counsel, while questioning the reasons assigned by the trial Court has tried to persuade this Court referring to the material on record. He would point out that plaintiff's mother did convey 8.17 acres of land in RS No.76/2 and 76/3. He would point out that the plaintiff has voluntarily agreed to relinquish her right in lieu of receiving 8.17 acres of land, which was originally held by plaintiff's mother. Therefore, he would point out that, on
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NC: 2025:KHC-D:4152-DB RFA No. 100560 of 2022 equity, if the preliminary decree in Original Suit No.312 of 2014 is not reversed, the plaintiff who has made huge investment by putting up construction in the said site allotted by the Karnataka Housing Board, the same would lead to miscarriage of justice.
8. Per contra, Sri Vittal S. Teli, learned counsel appearing for plaintiff would point out that except Exhibit D5 which is the wardi submitted by defendants to effect change of khata, no documentary evidence is placed on record indicating that plaintiff has relinquished her legitimate right in the property, in the manner known to law. He has brought to the notice of this Court that unregistered relinquishment deed, though found in the records, was not relied upon by defendant No.3 and this unregistered relinquishment deed is not a part of records as it is not exhibited and therefore, the trial Court has rightly declined to advert to this document. Except Exhibit D5, there is absolutely no evidence which would outweigh the clinching evidence let in by the plaintiff. Therefore, he would request this Court to dismiss the appeal.
9. Having heard the learned Counsel appearing the plaintiff, learned counsels appearing for defendant No.3 and
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NC: 2025:KHC-D:4152-DB RFA No. 100560 of 2022 defendant No.9, the following points would arise for consideration:
1. Whether the finding of the trial Court that Schedule 'A', 'B' and 'C' properties are joint family and ancestral properties is perverse and palpably erroneous and therefore, warrant interference at the hands of this Court?
2. Whether the defendant No.3 has succeeded in substantiating that there was a family partition and in the said family partition the plaintiff has voluntarily relinquished her right in the suit schedule property?
Finding on points 1 and 2:
10. Upon a thorough examination of the pleadings, oral submissions, and documentary evidence, it is evident that there is no substantial challenge to the nature of the suit properties. Although defendant No.3 initially attempted to establish that while the original allotment in Schedule 'A' was made in favor of Babagouda the father of the plaintiff and defendants 1 to 5, he had borne the entire construction charges. This claim remains wholly unsubstantiated. The records unequivocally establish that the property in question was allotted to Babagouda by the Karnataka Housing Board in
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NC: 2025:KHC-D:4152-DB RFA No. 100560 of 2022 the year 1971. Defendant No.3 has put forth an assertion that he contributed the entire sale consideration even before the lease-cum-sale agreement was secured. However, this assertion lacks any documentary support. One critical aspect that cannot be overlooked is that, at the time of securing the lease-cum-sale agreement, defendant No.3 was merely around twenty years old. His contention that he was gainfully employed and had sufficient financial resources to mobilize the sale consideration for securing the lease-cum-sale agreement is not backed by any concrete evidence. The only material available in support of this claim is the bald assertion in his written statement, which, by itself, cannot be considered as substantive proof. Therefore, the claim of defendant No.3 regarding financial contribution towards the acquisition of the suit properties remains unverified and devoid of merit.
11. Another crucial aspect that emerges in the present case is the plea raised by defendant No.3 concerning the alleged relinquishment of rights by the plaintiff. Initially, defendant No.3 contended that the plaintiff had relinquished her share in the suit properties. However, it is notable that during the proceedings, defendant No.3 consciously abandoned
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NC: 2025:KHC-D:4152-DB RFA No. 100560 of 2022 this plea, which is apparent from the records. Although an unregistered relinquishment deed is found in the case records, it is evident that defendant No.3 has refrained from placing reliance on this document. Further scrutiny of this document reveals that it is not even signed by the plaintiff, thereby rendering it legally ineffective. In an attempt to establish relinquishment, defendant No.3 placed reliance on certain affidavits. However, these affidavits were not formally marked as exhibits during the trial. The only document that has been marked is an application submitted by defendant No.3 to the Survey Authorities, wherein a reference is made to the plaintiff's alleged relinquishment of her legitimate right over the properties. This application also contains a statement suggesting that the plaintiff had no objection to mutating the names of the male members of the family. Beyond this solitary document, no other documentary evidence has been produced by defendant No.3 to substantiate the claim that the plaintiff relinquished her share in the suit properties. Additionally, in the wardi submitted to the City Survey Authorities, the names of all family members, including the plaintiff, her mother, and her sister Kasturi, have been indicated. The presence of these
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NC: 2025:KHC-D:4152-DB RFA No. 100560 of 2022 names further dilutes the claim of defendant No.3 regarding exclusive ownership.
12. The issue of relinquishment of property rights through an unregistered deed or affidavit has been extensively dealt with by this Court in a series of judicial pronouncements. It is a well-settled principle of law that relinquishment of a share in joint family ancestral property must be carried out in a manner recognized by law. While it is permissible for some members of a joint family to give up their share in the course of an oral partition, any formal relinquishment through a written document must comply with the statutory requirements stipulated under Section 17 of the Registration Act. An unregistered relinquishment deed does not operate to convey title, nor does it result in the loss of property rights for the individual executing such a document. The legal effect of an unregistered relinquishment deed is, therefore, inadmissable. In the present case, the document marked as Exhibit D5 does not satisfy the legal mandate required under Section 17 of the Registration Act. If this document is disregarded, defendant No.3 is left without any substantive evidence to support his claim that the plaintiff voluntarily gave up her share in the suit
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NC: 2025:KHC-D:4152-DB RFA No. 100560 of 2022 properties. Consequently, the defence set up by defendant No.3 on the basis of relinquishment is untenable in law and fact.
13. A meticulous examination of the entire records of the case, including the pleadings and the evidence presented by both parties, lends strong support to the version put forth by the plaintiff. The material available on record clearly indicate that the suit schedule properties are joint family properties. This fundamental aspect has not been seriously contested by defendant No.3. Furthermore, his assertion that he personally contributed to the sale consideration at the time of securing the lease-cum-sale agreement remains uncorroborated by any tangible evidence. His plea is based purely on self-serving statements without any independent verification or supporting documentation. The absence of any substantial documentary proof significantly weakens his claim and further strengthens the plaintiff's position regarding the joint family nature of the suit properties.
14. Defendant No.3 has also attempted to challenge the decree by contending that there exist certain documents that purportedly indicate that the plaintiff received 8.17 acres of land originally owned by her mother. According to defendant
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NC: 2025:KHC-D:4152-DB RFA No. 100560 of 2022 No.3, these documents are crucial for determining the actual controversy between the parties. However, such an argument cannot be accepted at this stage of the proceedings. In civil litigation involving immovable property, specific pleadings are essential to enable the Court to frame proper issues. Once the issues are framed, the parties are expected to lead both oral and documentary evidence in support of their respective claims. In the present case, no such specific pleadings are found in the written statement filed by defendant No.3. It is noteworthy that this argument was advanced for the first time during the hearing before this Court, without having been raised in the initial pleadings. Even assuming for the sake of argument that such an assertion holds some merit, it would still be legally unsustainable for two primary reasons. Firstly, the alleged allotment of 8.17 acres of land to the plaintiff pertains to the property owned by the mother of the plaintiff and defendants 1 to 5. Any such allotment from the maternal estate is entirely unrelated to the present dispute concerning the ancestral joint family properties. Secondly, since no specific pleadings were made in the written statement regarding this aspect and no attempt was made to amend the
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NC: 2025:KHC-D:4152-DB RFA No. 100560 of 2022 written statement to introduce this contention, the Court cannot entertain such a plea at this belated stage. Raising a new ground for the first time in appellate proceedings, without prior pleadings or specific issues framed, runs contrary to established principles of civil procedure. Therefore, this argument advanced by defendant No.3 holds no weight in law.
15. In view of the foregoing discussion, this Court finds no merit in the contentions raised by defendant No.3. Accordingly, the points formulated as No.1 and No.2 are answered in the negative.
For the aforesaid reasons, we pass the following:
ORDER
1. First Appeal is devoid of merits and is accordingly dismissed.
Sd/-
(SACHIN SHANKAR MAGADUM) JUDGE Sd/-
(G BASAVARAJA) JUDGE lnn LIST NO.: 1 SL NO.: 49