KABR020010192007

IN THE COURT OF VII ADDL. SENIOR CIVIL JUDGE

AND JMFC, BENGALURU RURAL DISTRICT,
BENGALURU.

Present: Sri. Ram Prashanth M.N, B.A.L., LL.B.

VII Addl. Senior Civil Judge & JMFC,
Bengaluru Rural, Bengaluru.

Dated: This the 03rd day of May 2025.

OS.No.613/2007

1. Smt. Ignesamma
Since dead by Lrs

1(a). Sri. C.Balraju

S/o late Chinnappa
Aged about 52 years,
R/at No.03, Basavanapura
Gottigere, Bannerghatta Road,
Bengaluru South Taluk, Dist.

1(b). Sri. Jayaraj

S/o Late Chinnappa
Aged about 48 years
R/at No.1460/3,
Dasarahalli
Bengaluru North
Bengaluru.

1(c). Sri. C.Anthony Swamy

S/o late Chinnappa
Aged about 45 years
R/at No.99/1, 1st Main Road,
3rd cross, Mariyamma Temple
Sonnenahalli
Bengaluru South
Viveknagar
Bengaluru.
KABR020010192007 2 O.S.No.613/2007

2. Mr. Francis,
S/o Late Chinnappa
Aged about 38 years,
R/at Begur Village
Begur Road,
Bengaluru 560 068. PLAINTIFFS
(Rep. By Sri. V.A., Advocate)

-versus-

1. Sri. Mariyappa
Since dead by Lrs

1(a). Smt. Anthonamma

W/o late Mariyappa @ Annayappa
Aged about 75 years,

1(b). Sri. Anthony Swamy

S/o late Mariyappa @ Annayappa
Aged about 50 years

1(c). Smt. Rani

D/o late Mariyappa @ Annayappa
Aged about 48 years,

1(d). Smt. Igneshamma

D/o late Mariyappa @Annayappa
Aged about 43 years

All Are R/at Sy.No.240/2,

Begur Village and Hobli,
Near Canara Bank
Bengaluru 560 068.

2. Sri. Rajappa
Since dead by his Lrs

2(a) Smt. Papamma

W/o late Rajappa
Aged about 65 years,
KABR020010192007 3 O.S.No.613/2007

2(b). Sri. Igneshappa

S/o late Rajappa
Aged about 45 years

2(c). Sri. Balaraju

S/o late Rajappa
Aged about 43 years,

2(d). Sri. Lordu Swamy

S/o late Rajappa
Aged about 41 years

2(e). Sri. Arogya Swamy

S/o late Rajappa
Aged about 39 years

2(f). Smt. Sagayi Mary

D/o late Rajappa
Aged about 37 years

2(g). Smt. Anthony Mary

D/o Late Rajappa
Aged about 35 years,

2(h). Smt. Josephin Mary

D/o late Rajappa
Aged about 33 years

2(j). Smt. Jyothi Pushpa

D/o late Rajappa
Aged about 31 years

All are R/at Sy.No.240/2

Begur Villge and Hobli
Near Canara Bank
Bengaluru 560 068.

3). Sri. Chinnappa

Since dead by his Lrs
KABR020010192007 4 O.S.No.613/2007

3(a) Sri. Balarju

S/o late Chinnappa
Aged about 45 years

3(b). Smt. Vasantha Mary

D/o late Chinnappa
Aged about 43 years

3(c). Smt. Sagayi Mary

D/o late Chinnappa
Aged about 40 years

defendant No.3(a) to 3(c)

All R/at Begur Village
Begur Post,
Bengaluru 560 068.

4. Sri. Balaraju
S/o late Mariyappa
Aged about 35 years,
R/at Yedavanahalli Village
Attibele Hobli
Anekal Taluk
Neraluru Post. DEFENDANTS
(D1 & Lrs of D1 – M.V., D2 – M.N.R.,
D3 – G.M., Lrs of D2(b) & (c) – B.C.V.,
D1(b) – R.N., Lrs of D3(a) – G.M., Advocate)
*******
Nature of the Suit : Partition
Date of Institution : 12-03-2016
Date of Judgment : 03-05-2025
Total Duration : Years Months Days
18 01 22

(Ram Prashanth M.N.)

VII Addl. Senior Civil Judge & JMFC,
Bangalore Rural District, Bangalore.
KABR020010192007 5 O.S.No.613/2007

JUDGMENT
Suit for partition.

2. In order to appreciate the issues, involved in

this suit, it is necessary to set out in brief, the relevant
facts of the plaint, is that, plaintiff No.1 is the daughter
of Gajji Arogyaswamy and plaintiff No.2 is the grand
son. The defendants No.1 to 3 are the brothers of
plaintiff No.1 and defendant No.4 is the grand son of
Gajji Arogyaswamy and son of Agnesamma. The suit
schedule properties belonged to Gajji Arogyaswamy and
as he died intestate, hence, the 6 children of Gajji
Arogyaswamy are entitled for 1/6th share equally but
the defendants have refused to effect partition, hence,
the plaintiffs have approached the court.

3. In service of summons defendant No.2 filed

written statement stating that, the Gajji Arogyaswamy
purchased and possessed several properties i.e.,
Sy.No.238/2A measuring to an extent of 32 ¾ (thirty
two & three fourth (guntas), Sy.No.240/2 measuring to
an extent of 2 acres, Sy.No.239 measuring to an extent
of 1 acre 26 guntas, Sy.No.281/2 measuring to an
extent of 10 ½ guntas Sy.No.290/1 measuring to an
extent of 20 guntas, Sy.No.299/3 measuring to an
extent of 27 guntas, 392/1 measuring to an extent of 08
guntas. All the above mentioned survey numbers are
KABR020010192007 6 O.S.No.613/2007

situated in Begur Village, Begur Hobli, Bengaluru South

Taluk, Bengaluru district and the land bearing
Sy.No.81/2 measuring to an extent of 1 acres 10 guntas
situated in Hongasadra Village, Begur Hobli, Bengaluru
District. Apart from these he also owned the dwelling
houses and vacant sites bearing Khaneshumari
Gramatan Nos.397/1 and 399/1 of Begur Village, Begur
Hobli, Bengaluru South. Also stated that, the father
Gajji Arogyaswamy divided his properties during his
lifetime by giving 1/3rd share each to the male children
in the year 1972 itself. Since the defendants No.1 and 3
started to play mischief, hence, he has filed
OS.277/1993, which came to be compromised.

4. The defendant No.2 further stated that, all the

children of Agneshamma and Chowramma are not made
as parties, where, Agnesamma has two daughters, who
are not made as parties. Even, Chowramma has other
two sons and three daughters, who are also not made as
parties. The plaintiffs colluding with other defendants
have filed the present suit, without including the entire
property but has sought partition only on the share
allotted to the defendant No.2, which is also found in
the plaint of OS.No.277/1993. The defendant No.2 has
also entered into partition over share allotted to him
among his family members. Some of the properties are
KABR020010192007 7 O.S.No.613/2007

sold. Hence, along with other grounds prayed to dismiss

the suit.

5. The defendant No.3 filed written statement

stating that, the plaintiff No.1 and mother of plaintiff
No.2 has taken their share i.e., cash, jewels, clothes and
also dowry. Even, they have got constructed the house
Swathantrapalya. The Gajji Arogyaswamy during his
lifetime i.e., in the year 1964-65 has divided all the
properties and allotted to defendants No.1 to 3 without
any retaining any property with a specific condition
that, defendants No.1 to 3 should maintain him till his
breath and perform final rituals.

6. The defendant No.3 further stated that, he is in

possession of his share, where, he was also rearing cows
and vending milk, where, he has profitable earnings,
hence, he has purchased land bearing Sy.No.239
measuring 1 acre 4 guntas and SY.No.290/1 measuring
20 gunta. He is in exclusive possession and enjoyment,
thereby has improved and developed the properties out
of his funds and efforts, hence, along with other
grounds

7. In order to substantiate the case, the plaintiff

No.1 examined himself as PW1 and got marked 09
documents as per Ex.P1 to P9. On the other hand, the
defendant No.2 stepped into the witness box and
examined himself as DW1 and got marked 16
KABR020010192007 8 O.S.No.613/2007

documents as per Ex.D1 to D16 and Lrs No.3(a) of

defendant No.3 examined as DW2 and got marked D17
to 23 documents.

8. Heard arguments.

9. On the basis of the rival pleadings of the

parties, this court has framed the following:
ISSUES
1.Whether the plaintiffs proves that they
and defendants are the co-owners of the suit
schedule property and succeeded the same
by way of succession after demise of their
father Gajji Arogyaswamy?
2. Whether defendant No.3 proves that
plaintiffs have relinquished their right, title
interest over the properties of Gajji
Arogyaswamy as pleaded in para 15 of the
written statement?
3. Whether defendants No.2 and 3 proves
that there was already a partition among the
sons of Gajji Arogyaswamy in respect of suit
schedule properties?
4. Whether plaintiffs are entitle for partition
and separate possession of 1/6th share in
the suit schedule property by metes and
bounds?
5. Whether plaintiffs are entitle for mesne
profits as prayed for?
6.What order or decree?

10. My findings to the above said issues are

as follows:-
Issue No.1 & 2 : Negative
KABR020010192007 9 O.S.No.613/2007

Issue No.3 : Affirmative

Issue No.4 & 5 : Negative
Issue No.6 :As per the final order
for the following:
REASONS

11. Issues No.1 to 5 : Since these issues

involve common discussion, hence, to avoid repetition of
facts, they are taken together.

The plaintiffs have come before the court seeking

partition over the suit schedule properties. It is the
plaintiffs who have come to the court and it is for them
to prove their case in establishing the existence of
properties belonging to Gajji Arogyaswamy, hence, this
Court is of the clear opinion that, plaintiffs have
approached the court and onus lies on plaintiffs to
prove the burden, is as set out in Sec.101 of the
Evidence Act. Sec.101 with its illustrations runs thus:
"Section 101 of Indian Evidence Act: Burden of proof.
Whoever, desires any Court to give judgment as to any
legal right or liability dependent on the existence of facts
which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any
fact, it is said that the burden of proof lies on that
person.”

12. The plaintiff has stated that suit properties

belonged to Gajji Arogyaswa, hence, the court relies
upon a decision reported in 2004 (1) KCCR 662
[K.Gopala Reddy (deceased) by L.Rs Vs.
Suryanarayan and others], in which the Hon'ble High
KABR020010192007 10 O.S.No.613/2007

Court of Karnataka held that, "Whenever party

approaches the Court for the relief based on the
pleadings and issues, he has to prove his case. A suit
has to be decided based on merits and demerits of the
party who approach the Court. Weakness of the
defendants cannot be considered as a trump card for
the plaintiff."

13. That, section 101 of Indian Evidence Act has

clearly laid down that, "Burden of proving of fact always
lies upon person who asserts the fact. Until such
burden is discharged, the other party is not required to
be called upon to prove his case. The Court has to
examine as to whether the presumption upon whom the
burden lies has been able to discharge his burden. Until
he arises at such conclusion he cannot proceed on the
basis of weakness of other party". The said ratio is aptly
applicable to the case in hand.

14. In a decision reported in (2011) 12 Supreme

Court Cases 220 (Rangammal Vs. Kuppaswamy), it is
clearly held that "section 101 of Evidence Act has clearly
laid down that the burden of proving a fact always lies
upon the person who asserts the fact. Until such
burden is discharged, the other party is not required to
be called upon to prove his case. The Court has to
examine as to whether the person upon whom the
burden lies has been able to discharge his burden. Until
KABR020010192007 11 O.S.No.613/2007

he arises at such conclusion, he cannot proceed on the

basis of weakness of the other party."

15. By keeping the arguments in mind and

looking into the records applying the law, mainly upon
the above said decision, let me discuss. The relationship
between the parities is not in dispute. The father Gajji
Arogyaswamy married Annamma and begot 6 children,
where, Agnesamma i.e., the mother of defendant No.4
is no more. Even the second daughter Chowramma i.e.,
the mother of plaintiff No.2 is no more. The plaintiff
No.1 who was the only daughter alive, has filed the
present suit along with plaintiff No.2. The defendants
No.1 to 3 are the male children of Gajji Arogyaswamy.
16. It is the contention of the plaintiff that, the
suit schedule properties were owned and possessed by
Gajji Arogyaswamy. The said aspect is not in dispute to
a certain extent, however, it is the vehement contention
of the defendant No.2 that, the suit schedule properties
are nothing but the share allotted to him and the share
allotted to the defendants No.1 and 3 is not included.
He has specifically pleaded in his written statement at
para 10 that, his father Gajji Arogyaswamy owned and
possessed properties.
17. It is also the contention of the defendant that,
all the children of Agnesamma and Chowramma are not
made as parties. The contention is true and PW1 in her
cross examination has admitted the same in the cross
KABR020010192007 12 O.S.No.613/2007

examination dated 10-03-2005. The PW1 has also

admitted the properties which were owned and
possessed by Gajji Arogyaswamy. As per the PW1 her
father had 32 guntas in Sy.No.238/1A, 2 acres in
Sy.No.240/2, 26 guntas in Sy.No.239, 20 guntas in
Sy.No.290/1, 10 acre and 0.04 guntas in Sy.No.181, 27
guntas in Sy.No.299/3, 8 guntas in Sy.No.92/1, 1 acre
12 guntas in Sy.No.81/2 and two sites.
18. For the better appreciation the relevant portion
of the cross examination is extracted "ನಮ ್ಮ ತಂದೆಗೆ ಮೂರು
ಗಂಡು ಮತ್ತು ಹೆಣ್ಣು ಮಕ್ಕಳು. ಇಬ್ಬರು ಹೆಣ್ಣು ಮಕ್ಕಳು ಇಗ್ನೇಸಮ ್ಮ ಮತ್ತು ಚೌರಮ ್ಮ ಮೃತ
ಹೊಂದಿದ್ದಾ ರೆ. ಇಗ್ನೇಮ ್ಮನಿಗೆ ಮೂರು ಜನ ಮಕ್ಕಳಿದ್ದಾ ರೆ. ಚೌರಮ ್ಮರವರಿಗೆ ಆರು ಜನ
ಮಕ್ಕಳಿದ್ದಾ ರೆ. ಅವರನ್ನು ಪಕ್ಷಗಾರರನ್ನಾ ಗಿ ಮಾಡಿಲ್ಲ. ಸರ್ವೆ ನಂ.238/1 ಎ ರಲ್ಲಿ 32
ಗುಂಟೆ, ಸರ್ವೆ ನಂ.240/2 ರಲ್ಲಿ 2 ಎಕರೆ, ಸರ್ವೆ ನಂ.239 ರಲ್ಲಿ --- ಎಕರೆ 26
ಗುಂಟೆ, 290/1 ರಲ್ಲಿ 20 ಗುಂಟೆ, ಸರ್ವೆ ನಂ.181 ರಲ್ಲಿ 10 ಎಕರೆ ಕಾಲು ಗುಂಟೆ,
ಸರ್ವೆ ನಂ.299/3 ರಲ್ಲಿ 27 ಗುಂಟೆ, ಸರ್ವೆ ನಂ.92/1 ರಲ್ಲಿ 8 ಗುಂಟೆ, ಸರ್ವೆ
ನಂ.81/2 ರಲ್ಲಿ 1 ಎಕರೆ 12 ಗುಂಟೆ ಎರಡು ಖಾನೇಶ್‌ ಮಾರಿ ನಿವೇಶನಗಳನ್ನು ನನ್ನ
ತಂದೆ ಆರೋಗ್ಯಸ್ವಾ ಮಿ ಸಂಪಾದಿಸಿದ್ದರು ಎಂದರೆ ಸರಿ. ಅವುಗಳ ಸಂಪೂರ್ಣ ವಿಸ್ತಿರ್ಣವನ್ನು
ಈ ದಾವೆಯಲ್ಲಿ ತೋರಿಸಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಮ ್ಮ ತಂದೆ ಬದುಕಿದ್ದಾ ಗಲೇ ನನ್ನ
ಮೂರು ಜನ ಸಹೋದರರಿಗೆ ಮೂರು ಭಾಗ ಮಾಡಿ ಹಂಚಿದ್ದರು ಎಂದರೆ ಸರಿ. 1993
ರಲ್ಲಿ ನನ್ನ ಅಣ್ಣ ತಮ ್ಮಂದಿರ ನಡುವೆ ತಕರಾರು ಉಂಟಾಗಿ ದಾವೆ ಹೂಡಿದ್ದರು ಎಂದರೆ ನನಗೆ
ಗೊತ್ತಿಲ್ಲ. ನನಗೆ ಮದುವೆಯಾಗಿ ಸುಮಾರು 60 ವರ್ಷದ ಮೇಲಾಗಿದೆ. ಮದುವೆಯಲ್ಲಿ
ಹಣ ಮತ್ತು ಒಡವೆ ಕೊಟ್ಟಿದ್ದರಿಂದ ನನಗೆ ಆಸ್ತಿಯಲ್ಲಿ ಪಾಲು ಕೊಟ್ಟಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ”.
19. The PW1 in the cross examination has also
admitted that, during the lifetime her father he had
partitioned and allotted properties to his male children.
Even the contention of the defendant is that, in the year
KABR020010192007 13 O.S.No.613/2007

1964-65 partition was taken place as per defendant

No.3. As per defendant No.2 some where, around 1972
partition was effected. So one thing is clear that, there is
an oral partition effected by the Gajji Arogyaswamy and
his male children, have taken the share. Even the PW.1
has furnished RTC from Ex.P3 to 9, where, in some of
the RTC the names of the defendants No.1 to 3 i.e., the
male children are standing in the individual names.
20. It is also to notice that, the plaintiffs have not
sought partition over the entire property standing in the
name of defendants No.1 to 3 but share is sought over
the suit schedule properties, which are standing in the
name of defendant No.2. The defendant No.2 has taken
the contention that, only his properties are targeted by
the plaintiffs, which is shown in the plaint. The
defendant No.2 has also furnished Ex.D1 i.e., the plaint
in the OS.No.277/1993, where, he has filed suit against
defendant No.1 and defendant No.3 for the relief of
injunction.
21. In the plaint at Ex.D1, the defendant No.2 has
stated that, he had got the suit schedule properties at
Ex.D1 through partition effected by his father in and
around 1972. The properties mentioned to his share are
the same properties shown in the present plaint. The
properties allotted to the share of defendants No.1 and 3
is not at all shown nor partition is sought by including
those properties. Any prudent man can easily make out
KABR020010192007 14 O.S.No.613/2007

that the plaintiffs have attacked and targeted only the

properties of defendant No.2. Though defendant No.2
has taken the said contention in the written statement
filed on 23-08-2011 and even after furnishing the plaint
in OS.No.277/1993, the plaintiffs have not come
forward to include other properties.

22. They have intentionally targeted the defendant

No.2. The plaintiffs have not furnished any documents
regarding item No.8 and 9 properties. The RTCs
produced by the plaintiffs also explains that, third
parties name has been mutated and they are not made
as parties to the suit. Even after gaining knowledge of
other properties not included and cross examination
and that aspect but those properties are not included
nor permission is sought. The law is settled that partial
partition is not maintainable without seeking leave of
the court.

23. The Hon'ble High Court of Karnataka in RSA

No. 466/2009 dated 23-01-2013 has stated as follows:
It is no doubt true that coparceners or joint family members by consent
can bring about partial partition of joint family properties. However,
when a suit is brought for partition of joint family property, question
would be whether only certain property or properties alone can be
brought for partition or in other words, whether certain properties
admittedly belonging to the joint family can be excluded in a suit for
partition. A complete answer to this question can be found in judgment
of KENCHEGOWDA's case referred to supra wherein it has been held as
follows:

"15. Equally incorrect is the assumption made by the High Court that the
court of first appeal had not accepted the case of partition. On the
contrary, what the appellate court has found is as follows:

"With regard to the partition alleged by the defendants even though the
plaintiff's own witness PW 1 has admitted that there was a partition
KABR020010192007 15 O.S.No.613/2007

amongst the plaintiff's mother Ningamma, himself and the 1st defendant
in the two suits. There is no satisfactory evidence to prove that in that
partition the suit property was allotted to the share of the 1st defendant
in the two suits jointly."

"16. Therefore, what has been held is that the property had not been
allotted in favour of the first defendant in the partition. That is very
different from holding that the case of partition had not been accepted by
the first appellant court. This being so, a decree for partition could not
have been passed on a mere application for amendment.

In fact, as rightly urged by the learned counsel for the appellant that the
causes of action are different and the reliefs are also different. To hold
that the relief of declaration and injunction are larger reliefs and smaller
relief for partition could be granted is incorrect. Even otherwise, a suit for
partial partition in the absence of the inclusion of other joint family
properties and the impleadment of the other co-sharers was not
warranted in law. Thus, we find no difficulty in allowing these appeals
which are accordingly allowed. The judgment and decree of the trial
court as affirmed by the first appellate court are restored. However, there
shall be no order as to costs".

(emphasis supplied)

16. A Division Bench of this Court has also noticed this aspect in
G.M.Mahendra’s case referred to above and has held as follows:

"Also held, that the finding of the Trial Court as to the oral partition was
perverse and was not based on proper appreciation of the document and
its interpretation. The plaintiff could not have challenged the sale deed
executed by his father as not for benefit of the joint family and without
including all other joint family properties. The fact that the plaintiff, on
the date of filing of the suit, had not even seen the sale deed executed by
his father in favour of the 2nd defendant showed that the suit was filed
only at the instigation of the father, the 1st defendant."

17. A Co-ordinate Bench of this Court in the case of Sri. Tukaram Vs Sri
Sambhaji & others. (ILR 1998 KAR 681), after referring to the catena of
judgments has held as under:

"19. It has been contended by the Learned Counsel for the appellants
that the finding of the I Appellate Court to the effect that the suit by one
of the co-parceners for partition with respect to one of the items of the
Joint Hindu Family property is maintainable in the special circumstances
is not proper. During the course of the order, the Appellate court has
observed that Section 261 of Mulla Hindu Law 15th Edn. At pages 351
and 352 makes it clear that non-alienating co-parceners are entitled in
Bombay, Madras and Allahabad to sue the purchaser for partition of the
alienated property without bringing a suit for a general partition. In the
present case on hand all the non-alienating co-parceners have not filed
the suit. The mere fact that the other non-alienating co-
KABR020010192007 16 O.S.No.613/2007

parceners viz., defendants-7 to 9 did not join the plaintiff in filing the suit
is not material. The right of non- alienating co-parcener in Bombay area
does not depend upon the whims and fancies of remaining no-alienating
co- parceners who for reasons best known to them, may not join the
plaintiff in filing suit. Patna and Andhra Pradesh High Courts held that
one of the several no-alienating co-parceners cannot sue the purchaser
for his own share of the alienated property. It has been observed by the I
Appellate Court the law applicable in Bombay area does not prohibit the
suit by one of the several no-alienating co-parceners. the I Appellate
Court considered the ruling in AIR 1983 SC 124 wherein it has been held
that a purchaser can be impleaded even when decree for partition of
agricultural lands is pending before the Collector for effecting partition.
But it is not the case in the present it. In ILR 1989 Kar 1895 it is held
that a partition suit should comprise of all the available properties, as far
as possible. That decision has been distinguished by the I Appellate
Court as that was not a case of no-alienating co-parceners filing a suit
for partition of alienated property. The view that has been taken by the I
Appellate Court cannot be stated to be a correct one in the circumstances
of the case. It is to be seen that the plaintiff, defendant-1 and
defendants-7 to 15 are the members of Joint Hindu Family. There is
no partition by metes and bounds of the family properties. The present
suit is filed in respect of the suit land only. There are other lands in other
villages and also other house properties which have not been included in
the suit which are admittedly the joint family properties. It has been
observed in Mulla's Hindu Law- 13th Edn.

regarding the rights of purchaser of co- parceners interest. It has been

stated that the no-alienating co-parceners are entitled in Bombay,
Madras and Allahabad to sue the purchaser for partition of the alienated
property without bringing a suit for general partition. It sis to be noted
that in AIR 1984 AP 84 it has been held that normally a suit instituted
for partition should be one for partition of the entire joint family
properties and all the interested co-sharers should be impleaded. The
suit of partition of specified items can only be an exception. In the
present case on hand, the 1st defendant has alienated the suit land in
favour of defendants-2 to 6. the 1st defendants is the member of the
Joint Hindu Family. As already stated that the family has got other
several lands and house properties which are the joint family properties.
It has been contended by the Learned Counsel or the alieness while
allotting the share to defendant-1 in the family properties equitable rights
of purchasers on partition has to be considered and those rights can be
considered only when all the joint family properties are included in the
suit for partition. Otherwise, it would be difficult to apply principles of
equitable partition. The inclusion of all the joint family properties in the
instant suit for partition was necessary and without bringing all the joint
family properties into the hotch-pto, the suit for partition of the shares of
the members of the joint family in one property which amounts to partial
partition is not maintainable. this contention in the circumstances of the
case, has force and the same has to be upheld. The reason being, the
present suit ahs been filed by one f the no-alienating co- parceners of the
joint family property. The suit has been filed by the no- alienating co-
parceners with respect to the only property which has been alienated.
This is not a suit for general share of the plaintiff to be worked out if all
the joint family properties had been included in the schedule then, at a
partition, the share of the 1st defendant would have been worked out in
order to give equitable relief to the alienees also as they have purchased
the property by the 1st defendant. In that view of the matter, the present
suit filed by the plaintiff without including all the joint family properties
and which prejudices the rights of the alienees who have also been
impleaded as parties to the suit, in the circumstances of the case, has to
be held that the suit filed by the plaintiff for partial partition without
including all the joint family properties is bad in law. The finding given
by the trial Court with respect to the sixth issue has to be maintained
and the finding given by the I Appellate Court that the suit is
KABR020010192007 17 O.S.No.613/2007

maintainable without including all the joint family properties cannot be

held to be proper in the circumstances of the case. Hence, the finding of
the A Appellate Court holding that the suit of the plaintiff for partial
partition is maintainable should be set aside and the finding of the Trial
Court with respect to the sixth issue that the suit is bad for non--joinder
of necessary properties to be included in the suit has to be upheld.

24. The Hon'ble High Court of Karnataka in

R.A.No.345/2019, dated 26-10-2023 has stated as
follows:

15. In this regard, learned counsel for appellant relied upon the
judgment of the Division bench of this Court reported in MANU/KA/
1562/2010 in the case of G.M.Mahendra Vs G.M.Mohan, in a similar sit-
uation, the Division Bench has held at paragraph 18 as under:-
"18. When he contends that he has become the absolute owner
of 50% of the joint family property, and if he has filed a suit for partition
he has to file a suit for partition in respect of all the properties wherever
they are situated. For the reasons best known to the plaintiff in O.S. No.
2/83, he did no include the present suit property. Similarly he also did
not include other joint family properties. Similarly, he also did not crave
leave the Court to institute a suit in respect of the property not included
in the said suit to treat the said suit as a suit for partial partition only.
There is no proper explanation by the plaintiff in this regard. When he
has omitted to include plaint schedule property as the cause of action in
the present suit was also there as on the date of institution of the suit in
view of the law laid down by is Court in Sri Tukaram v. Sri Sambhaji,
ILR 1998 KAR 681 which is as hereunder:
xxxxxxxxxxxxxxxxxxxxxxxxxx
partition
The inclusion of all the joint family properties in the instant suit for parti-
tion was necessary and without bringing all the joint family properties
into the hotchpot, the suit for partition of the share of the members of the
joint family in one property which amounts to partial partition is not
maintainable. This contention in the circumstances of the case, has force
and the same has to be upheld.
xxxxxxxxxxxxxxxxxxxxxxxx
The finding given by the Trial Court with respect to the sixth issue has to
be maintained and the finding given by the I Appellate Court that the suit
is maintainable without including all the joint family properties cannot be
held to be proper in the circumstances of the case. Hence, the finding of
the I Appellate Court holding that the suit of the plaintiff for partial parti-
tion is maintainable should be set aside and the finding of the Trial
Court with respect to the sixth issue that the suit is bad for non- joinder
of necessary properties to be included in the suit has to be upheld."
Taking into consideration this citation, the Court has to hold that
the suit filed by the plaintiff was not maintainable as the suit for partial
partition cannot be maintained without seeking leave of the Court as con-
templated under the provisions of order 2, Rule 2 of CPC. Therefore, we
are of the view that suit of the plaintiff was also not maintainable on this
ground."
16. In another judgment of Co-ordinate bench of this Court in the
case of Vishwaraj and Ors. Vs. B.M.Byrappa and Ors.. reported in
MANU KA/342/2013 has taken similar view and cited another judgment
of the Co-ordinate Bench of this court in the case of Sri Tukaram Vs. Sri.
KABR020010192007 18 O.S.No.613/2007

Sambhaji & Ors. reported in MANU/KA/0498/1998 and held at para-

graph No.19 as under:-
"In the present case on hand, the 1st defendant has alienated
the suit land in favour of defendants-2 to 6. the 1st defendants is the
member of the Joint Hindu Family. As already stated that the family has
got other several lands and house properties which are the joint family
properties. It has been contended by the Learned Counsel or the alie-
neess while allotting the share to defendant-1 in the family properties eq-
uitable rights of purchasers on partition has to be considered and those
rights can be considered only when all the joint family properties are in-
cluded in the suit for partition. Otherwise, it would be difficult to apply
principles of equitable partition. The inclusion of all the joint family prop-
erties in the instant suit for partition was necessary and without bring-
ing all the joint family properties into the hotch-pto, the suit for partition
of the shares of the members of the joint family in one property which
amounts to partial partition is not maintainable. This contention in the
circumstances of the case, has force and the same has to be upheld. The
reason being, the present suit has been filed by one of the non-alienating
co-parceners of the joint family property. The suit has been filed by the
non- alienating co-parceners with respect to the only property which has
been alienated. This is not a suit for general share of the plaintiff to be
worked out if all the joint family properties had been included in the
schedule then, at a partition, the share of the 1st defendant would have
been worked out in order to give equitable relief to the alienees also as
they have purchased the property by the 1st defendant. In that view of
the matter, the present suit filed by the plaintiff without including all the
joint family properties and which prejudices the rights of the alienees
who have also been impleaded as parties to the suit, in the circum-
stances of the case, has to be held that the suit filed by the plaintiff for
partial partition without including all the joint family properties is bad in
law."

25. The dicta laid down by Hon'ble Apex

Court and the Division Bench of Hon'ble High
Court of Karnataka it would clearly establish the
fact that a suit for partition would not be
maintainable when filed seeking partition of
alienated item only particularly when the family
owned number of properties and non inclusion
of all other properties belonging to the family in
the plaint would be fatal. In that view of the
matter, it has to be held that a suit for partial
partition was not maintainable when admittedly
Gajji Arogyaswami possessed other properties
and plaintiffs being conscious of this fact did not
KABR020010192007 19 O.S.No.613/2007

include those properties in the suit and as such

the very frame of the suit itself was not
maintainable.

26. From the principle laid down, the suit

filed by the plaintiff for partial partition is not
maintainable. The plaintiffs have come to the
court targeting the defendant No.2. There is no
bonafideness in the plaintiffs. The plaintiffs have
utterly failed to show that, they are the co-
owners of the suit schedule properties and
succeed to the same. Admittedly there is no
document show that, the plaintiff No.1 has
released her share by receiving cash. The
plaintiff No.1 has clearly admitted that, there
was a partition effected by his father, where, the
same has been acted upon. The plaintiffs are not
entitled for any share nor to the mesne profits.
Mesne profit shall be sought only against the
stranger who is in unlawful possession. Hence,
with these observation I Answer Issue No.1, 2,
4 and 5 in the Negative, issue No.3 in the
affirmative.

27. Issue No.6: In view of the reasons discussed

above, this court proceeds to pass the following:
KABR020010192007 20 O.S.No.613/2007

ORDER

Suit is dismissed.
Plaintiffs to bear the cost.
Draw decree accordingly.
(Dictated to the stenographer directly on computer, typed by her and corrected by me and then pronounced in open Court, this
the 03rd day of May 2025).

(Ram Prashanth M.N.)

VII Addl. Senior Civil Judge & JMFC,
Bangalore Rural District, Bangalore.

ANNEXURE

List of witnesses examined for plaintiffs:-

PW1 : Smt. Ignesamma

List of witnesses examined for defendants:-

DW.1 : Sri. Rajappa
DW.2 : Sri. Balraj C

List of documents marked for the Plaintiff:-

Ex.P1 : Family tree
Ex.P2 : Marriage invitation
Ex.P3 to 9 : RTCs

List of documents marked for defendants :-

Ex.D1 : Plaint copy of the OS.No.277/1993

Ex.D2 : Compromise copy
Ex.D3 : Decree copy
Ex.D4 & 5 : C/c Sale deed and rectification deed
25-07-1992 & 11-11-1992
Ex.D6 : C/c Partition deed dated 16-07-2003
Ex.D7 : C/c sale deed dated 02-04-2009
Ex.D8 to 14 : RTCs
Ex.D15 & 16 : Tax paid receipts
KABR020010192007 21 O.S.No.613/2007

Ex.D17 : Sale deed dated 23-02-1970

Ex.D18 : Mutation register
Ex.D19 & 20 : RTCs
Ex.D21 : Computerized RTC
Ex.D22 : Order sheet of the OS.No.1447/2009
Ex.D23 : C/c of compromise petition

(Ram Prashanth M.N.)

VII Addl. Senior Civil Judge & JMFC,
Bangalore Rural District, Bangalore.
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