Karnataka High Court
Smt. Sharadamma vs Sri. Narayanaswamy on 23 February, 2026
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WP No. 15726 of 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MS. JUSTICE TARA VITASTA GANJU
WRIT PETITION NO. 15726 OF 2022 (GM-CPC)
BETWEEN:
1. SMT. SHARADAMMA
D/O. LATE M. KEMPANNA,
W/O. RAJANNA,
AGED ABOUT 50 YEARS,
R/AT KURUBARAHALLI VILLAGE,
BENGALURU-560 066.
2. SRI. KEMPANNA
H/O. SUJATHAMMA,
AGED ABOUT 60 YEARS,
R/AT KURUBARAHALLI VILLAGE,
BENGALURU-560 066.
3. SMT. VIJAYA
D/O. LATE KEMPANNA,
W/O. NARAYANASWAMY,
AGED ABOUT 40 YEARS,
R/AT VIVEKNAGAR, BANGARPET-563 114.
4. SMT. VASANTHA
D/O. LATE KEMPANNA,
W/O. NAGESH,
AGED ABOUT 43 YEARS,
R/AT KENGERI UPANAGARA,
BENGALURU-560 060.
5. SMT. BYRAMMA
W/O. LATE KEMPANNA,
AGED ABOUT 74 YEARS,
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6. SRI. MANI
S/O. LATE KEMPANNA,
AGED ABOUT 25 YEARS,
7. SRI. K. M. MAHADESH GOWDA
S/O. M. KEMPANNA,
AGED ABOUT 60 YEARS,
8. SMT. MALASHREE
W/O. MAHADESH GOWDA,
AGED ABOUT 55 YEARS,
PETITIONERS 5 TO 8 ARE
R/AT KUPPANAHALLI VILLAGE,
KASABA HOBLI,
BANGARPET TALUK-563 114.
...PETITIONERS
(BY SRI. M.B. CHANDRACHOODA., ADVOCATE)
AND:
1. SRI. NARAYANASWAMY
S/O. LATE CHIKKANNA,
AGED ABOUT 59 YEARS,
2. SRI. VENKATESHAPPA
S/O. LATE CHIKKANNA,
AGED ABOUT 54 YEARS,
3. SRI. KRISHNAPPA
S/O. LATE CHIKKANNA,
AGED ABOUT 49 YEARS,
4. PARVATHAMMA
D/O. LATE CHIKKANNA,
AGED ABOUT 40 YEARS,
5. LAKSHMIDEVI
D/O. LATE CHIKKANNA,
AGED ABOUT 36 YEARS,
6. SMT. MUNIVENKATAMMA
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W/O. VENKATARAMAPPA,
AGED ABOUT 59 YEARS,
7. SRI. MUNIYAPPA
S/O. DODDA KAKAPPA,
AGED ABOUT 54 YEARS,
8. SRI. NARAYANAPPA
S/O. DODDA KAKAPPA,
AGED ABOUT 47 YEARS,
RESPONDENTS NO.1 TO 8 ARE
R/AT KUPPANAHALLI VILLAGE,
KASABA HOBLI, BANGARPET TALUK-563 114.
9. MUNIRATHNAMMA
D/O. K.V.HANUMAPPA,
AGED ABOUT 64 YEARS,
R/AT HOSUR VILLAGE,
SULIKUNTE POST,
BANGARPET TALUK-563 114.
10. SRI. K.K.MUNIYAPPA
S/O. K.V.HANUMAPPA,
AGED ABOUT 69 YEARS,
11. SRI. MAGESHA
S/O. LATE KEMPANNA,
AGED ABOUT 39 YEARS,
12. SMT. BYRAMMA
W/O. M.KUPPANNA,
AGED ABOUT 60 YEARS,
RESPONDENTS 10 TO 12 ARE
R/AT KUPPANAHALLI VILLAGE,
KASABA HOBLI, BANGARPET TALUK-563 114.
13. THE SPECIAL LAND ACQUISITION OFFICER AND
COMPETENT AUTHORITY (CHENNAI EXPRESSWAY)
NATIONAL HIGHWAYS AUTHORITY OF INDIA,
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HAVINGS ITS OFFICE AT NO. 678/3,
NEERUBHAVI KEMPANNA LAYOUT,
HEBBAL, BENGALURU-560 024.
...RESPONDENTS
(BY SRI. H.M.RAJASHEKARA., ADVOCATE FOR R7;
R1 TO 6, R8 TO 10 ARE SERVED AND UNREPRESENTED;
NOTICE TO R11 TO 13 IS D/W V/O DTD:14.09.2022)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
DTD. 26.03.2018 PASSED IN O.S.NO. 59/2016 ON THE FILE
OF SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, KGF, VIDE
ANNX-F.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU
ORAL ORDER
1. The present petition seeks to challenge an order
dated 26.03.2018 passed on I.A.No.1/2016 filed under
Order 39, Rule 7 of the Code of Civil Procedure, 1908, in
O.S.No.59/2016 by the learned Senior Civil Judge &
Principal JMFC, KGF [hereinafter referred to as the
“Impugned Order”].
2. By the Impugned Order, the marking of a
memorandum of partition which was sought by the
petitioners/defendants was rejected by the learned Trial
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Court, with a finding that the document sought to be
marked as an Exhibit is a document that is inadmissible.
3. Learned counsel for the petitioners/defendants
submits that the petitioner No.5/defendant No.1(e) had
passed away on 24.01.2024. However, it is contended
that the petitioner No.5’s legal representatives are
already on record. Thus, he submits that no further steps
are necessary.
4. The service to respondent Nos.11 to 13 was
dispensed with by order dated 14.09.2022. The report of
the registry indicates that the remaining respondents
have been served. None appears for the respondents,
despite service.
5. This Court, by an order dated 14.09.2022, had
directed stay of the proceedings before the learned Trial
Court. Given the pendency of this matter and the stay of
proceedings before the learned Trial Court for the last
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several years, this Court deems it apposite to hear and
decide the matter today.
6. During the course of examination-in-chief, the
petitioners/defendants sought for marking of an
unregistered Partition Deed dated 29.04.1991 as an
Exhibit on their behalf. Learned counsel for the
petitioners/defendants further submits that the document
had been placed on record along with the list of
documents filed by the defendants. However, the prayer
for marking of this document was rejected by the learned
Trial Court, giving a finding that since the Partition Deed
dated 29.04.1991 is not a Memorandum of Partition, the
same cannot be marked as an exhibit.
6.1. The learned counsel for the petitioners/defendants
further submits that this document could have been
marked as an evidence and relied upon for collateral
purposes. In this regard, he seeks to rely upon a
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judgment of the Supreme Court in the case of Sita Ram
Bhama Vs. Ramvatar Bhama1.
7. The effect of non-registration of documents required
to be registered, is set out in Section 49 of the
Registration Act, 1908. A plain reading of the proviso to
this provision sets out that an unregistered document can
also be received in evidence for collateral purposes in the
Court. It is apposite to set out the said provision along
with its proviso as under:
“49. Effect of non-registration of documents
required to be registered.-No document required by
Section 17 or by any provision of the Transfer of
Property Act, 1882, to be registered shall –
(a)affect any immovable property comprised therein, or
(b)confer any power to adopt, or
(c)be received as evidence of any transaction affecting
such property or conferring such power, unless it has
been registered.
Provided that an unregistered document affecting
immovable property and required by this Act or
the Transfer of Property Act, 1882 (4 of 1882), to
be registered may be received as evidence of a
contract in a suit for specific performance under
Chapter II of the Specific Relief Act, 1877 (3 of
1877) or as evidence of any collateral transaction
1
AIR 2018 SC 3057
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not required to be effected by registered
instrument.”
[Emphasis Supplied]
8. This issue of whether unregistered documents can
be received as evidence is also no longer res integra. The
Supreme Court has held in Sita Ram Bhama‘s case and
in catena of judgments that an unstamped
document/instrument is admissible in evidence for a
collateral purpose. The relevant extract is below:
“10. The only question which needs to be
considered in the present case is as to whether
document dated 09.09.1994 could have been
accepted by the trial court in evidence or trial court has
rightly held said document inadmissible. The plaintiff
claimed the document dated 09.09.1994 as
memorandum of family settlement. Plaintiff’s case is
that earlier the partition took place in the life time of the
father of the parties on 25.10.1992 which was recorded
as memorandum of family settlement on
09.09.1994. There are more than one reasons due to
which we are of the View that the document dated
09.09.1994 was not mere memorandum of family
settlement rather a family settlement itself. Firstly,
on 25.10.1992, the father of the parties was himself
owner of both, the residence and shop being self
acquired properties of Devi Dutt Verma. The High Court
has rightly held that the said document cannot be said
to be a Will, so that father could have made Will in
favour of his two sons, plaintiff and defendant. Neither
the plaintiff nor defendant had any share in the property
on the day when it is said to have been partitioned by
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Devi Dutt Verma. Devi Dutt Verma died on 10.09.1993.
After his death plaintiff, defendant and their mother as
well as sisters become the legal heirs under Hindu
Succession Act, 1955 inheriting the property being a
class I heir. document dated 09.09.1994 divided the
entire property between plaintiff and defendant which
document is also claimed to be signed by their mother
as well as the sisters. In any view of the matter,
there is relinquishment of the rights of other heirs
of the properties, hence, courts below are right in
their conclusion that there being relinquishment,
the document dated 09.09.1994 was compulsorily
registrable under Section 17 of the Registration
Act.
11. Pertaining to family settlement, a
memorandum of family settlement and its
necessity of registration, the law has been settled
by this Court. It is sufficient to refer to the
judgment of this Court in Kale and others vs. Deputy
Director of Consolidation and others, (1976) 3 SCC 119:
(AIR 1976 SC 807) The propositions with regard to
family settlement, its registration were laid down by this
Court in paragraphs 10 and 11:
“10. In other words to put the binding effect
and the essentials of a family settlement in a
concretised form, the matter may be
reduced into the form of the following
propositions:
(1) The family settlement must be a bona fide
one so as to resolve family disputes and rival
claims by a fair and equitable division or
allotment of properties between the various
members of the family;
(2) The said settlement must be voluntary and
should not be induced by fraud, coercion or
undue influence;
(3) The family arrangement may be even
oral in which case no registration is necessary;
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(4) It is well settled that registration would
be necessary only if the terms of the family
arrangement are reduced into writing. Here
also, a distinction should be made between a
document containing the terms and recitals of a
family arrangement made under the
document and a mere memorandum
prepared after the family arrangement had
already been made either for the purpose
of the record or for information of the
court for making necessary mutation. In
such a case the memorandum itself does not
create or extinguish any rights in immovable
properties and therefore does not fall within the
mischief of Section 17(2) of the
Registration Act and is, therefore, not
compulsorily registrable;
(5) The members who may be parties the family
arrangement must have some antecedent title,
claim or interest even a possible claim in the
property which 1S acknowledged by the parties
to the settlement. Even if one of the parties to
the settlement has no title but under the
arrangement the other party relinquishes all its
claims or titles in favour of such a person and
acknowledges him to be the sole owner, then
the antecedent title must be assumed and the
family arrangement will be upheld and the
courts will find no difficulty in giving assent to
the same;
(6) Even if bonafide disputes, present or
possible, which may not involve legal claims are
settled by a bona fide family arrangement which
is fair and equitable the family arrangement is
final and binding on the parties to the
settlement;
11. The principles indicated above have been clearly
enunciated and adroitly adumbrated in a long course of
decisions of this Court as also those of the Privy Council
Courts and other High Courts, which we shall discuss
presently.”
xxx xxx xxx 10 NC: 2026:KHC:11150 WP No. 15726 of 2022 HC-KAR
13. There is only one aspect of the matter which needs
consideration, i.e., whether the document dated
09.09.1994 which was inadmissible in evidence could
have been used for any collateral purpose. In a suit for
partition, an unregistered document can be relied
upon for collateral purpose, i.e. severancy of title,
nature of possession of various shares but not for
the primary purpose i.e. division of joint
properties by metes and bounds. Further, an
unstamped instrument is not admissible in
evidence even for collateral purpose, until the
same is impounded. A two-Judge Bench judgment of
this Court in Yellapu Uma Maheswari and another Vs.
Buddha Jagadheeswararao and others🙁 2015)16 SCC
787…”
[Emphasis Supplied]
9. A perusal of the Impugned Order shows that the
Impugned Order is in two parts. In the first part of the
Impugned Order, the learned Trial Court after examining
the document gives its finding on the effect of the
document that it is not a memo of partition. Paragraphs 3
and 4 in this behalf are extracted below:
“3. The document produced by the defendants is said
to be a memorandum of partition, but if the
documents is perused carefully it clearly shows
that it is not a memorandum of partition, whereas the
document itself shows that the list of ‘H’ Schedule
properties of the alleged partition deed has been typed
on a stamp paper and the parties have put their
signature and thumb impressions on the said document,
it is well established principle of law that the
memorandum of partition is a document which
reduces into writing about the past partition
already effected between the members of the11
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family orally, whereas there is nothing in the
document produced by the defendants to show
that an oral partition was effected between the
members of the family which is being reduced into
writing under the aforesaid document.
4. On the other hand, if the contentions urged by
the defendants in para-22 of the written statement is
perused, the defendants have specifically
contended that in pursuance of partition deed
dated 29/04/1991 all the revenue entries have
been changed in favour of the first defendant
Sri.M. Kempanna, therefore, it is clear that the
partition was effect between the members of the
family under the partition deed dated 29/04/1991,
hence, the document in question produced by the
defendants cannot be considered as a memorandum of
partition.”
[Emphasis Supplied]
9.1. In the second part of the Impugned Order, the
learned Trial Court holds that principles laid down by the
Coordinate bench of this Court in Lakshmaiah Vs.
Smt.Sarojamma and another2, by placing reliance on
the judgment of the Supreme Court in Bondar Singh
Vs. Nihal Singh3 are not applicable and that the
document cannot be marked as an exhibit. The
Impugned Order further sets out that the document
sought to be produced has been produced to prove the
2
2003 SCC OnLine Kar 392
3
(2003) 4 SCC 161
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fact that ‘H’ schedule properties are allotted to the first
defendant. The learned Trial Court has also given a
finding distinguishing between a ‘Partition Deed’ and a
‘Memorandum of Partition’. The relevant extract is
below:
“5. So in far as marking of said documents is concern
the learned counsel of defendants relief upon a decision
reported in ILR 2003 KAR 2253 wherein, it is held in
the following“Under the law a sale deed is required to be properly
stamped and registered before it can convey title to the
vendee. However, legal position is clear that a
document like the sale deed in the present case, even
though not admissible in evidence, can be looked into
for collateral purposes. In the present case the collateral
purpose to be seen is the nature of possession of the
plaintiffs over the suit land”.
The principles laid down in the aforesaid decision with
due respect are not applicable to the case on hand,
since it was a case where an unregistered sale deed was
held to be admissible for collateral purposes to prove
the nature of possession, but in this case the
defendants are trying to mark the aforesaid
document to prove the fact that the ‘H’ schedule
properties are allotted to the first defendant under
the partition deed, therefore the defendants can
very well produce the partition deed dated
29/04/1991 itself before the Court, hence, the
document in question is not a memorandum of
partition as contended by the learned counsel for
defendants and the same cannot be marked as an
exhibit. Accordingly, I proceed to pass the following:
[Emphasis Supplied]
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10. The Supreme Court in the case of P.Anjanappa (D)
by LRs. Vs. A.P.Nanjundappa4 has held that even
though a deed of partition has been executed between
the parties, the same does not require for registration or
stamping if it has only been used for collateral purposes.
It has further been held that if such document were to be
regarded as a family settlement, usually these are upheld
by the Courts. Where the execution is admitted, usually
the Court should not ask for additional formalities. Even if
a document is an unregistered partition deed, the same
may be relied upon for proving severance of status of the
joint family and explaining the nature of possession. It is
apposite to set out the relevant extract of the
P.Anjanappa’s case below:
“7.6. Turning to Ex.D-16 (14.09.1967), it is a
registered deed by which defendant no. 3
relinquished all his rights, title and interest in
favour of the father and the then coparceners, and
contemporaneously received seven items of
property. Execution was admitted in the pleadings;
defendant no. 3 entered the box and accepted the deed;
and the instrument was exhibited. The courts below
treated Ex.D-16 with unwarranted scepticism. The Trial4 2025 SCC Online SC 2358
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Court discounted it, broadly on “not acted upon” and
recital-based reasoning. The High Court, while
accepting that the deed partook the character of
an instrument of partition for stamp purposes,
declined to give effect to it on the footing that
proper valuation and stamp duty were not
demonstrated and that, in any case, it had not
been acted upon. That approach is unsustainable for
multiple reasons.
7.7. Firstly, the deed is registered and was
admitted in evidence; no timely, specific objection
on stamp duty was pressed to a logical conclusion
at the stage of marking, and the instrument
having been received in evidence, its admissibility
on that score cannot be re-agitated at the appellate
stage. Secondly, even if one were to regard Ex.D-
16 through the lens of a family arrangement, the
law leans strongly in favour of upholding such
settlements among close relations where
consideration has passed and possession has
followed. Here, there is both consideration and
unequivocal admission of execution. Thirdly, the
“acted upon” objection is misplaced on the facts
and in principle. The record shows consistent, post-
1967 conduct aligning with the break-away of defendant
no. 3: he did not assert coparcenary incidents
thereafter; the subsequent family arrangement of
11.02.1972 proceeded between plaintiff no. 1 and
defendant no. 5; and the revenue course and dealings
which we shall discuss while considering
the palupatti are plainly inconsistent with defendant no.
3 continuing as a coparcener. Where execution is
admitted, consideration is shown, and later
conduct corroborates severance, courts ought not
to defeat a registered relinquishment by
demanding proof of superadded formalities.
XXX XXX XXX
8.1. The plaintiffs deny that there was any
partition or disruption of the joint family and
contend that the writing described as
the palupatti is an unregistered partition deed
that cannot be looked at for any purpose.
Defendant no. 5 asserts that Ex.D-17 records a
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family arrangement which contains an
unequivocal declaration of severance of status
between plaintiff no. 1 and defendant no. 5 after
the earlier releases by plaintiff no. 2 and
defendant no. 3, that the arrangement was acted
upon in fact, and that even if it is unregistered it is
admissible for the limited collateral purposes of
proving disruption of joint status and explaining
the nature of subsequent possession and
enjoyment.
8.2. An unregistered partition deed, including
the palupatti in the present case,
may be relied upon for the limited collateral
purposes of proving severance of the joint family
status and title, explaining the nature of
possession, recording the arrangement made
thereunder, and evidencing the parties’
subsequent conduct as was observed by this
Court in various judgments such as Sita Ram
Bhama v. Ramvatar Bhama, Yellapu Uma
Maheswari v. Buddha Jagadheeswararao and
K.G. Shivalingappa v. G.S. Eswarappa. The same has
been clearly expounded by this Court
in Thulasidhara v. Narayanappa in the following paras:
“9.4. It is required to be noted that the deed
dated 23-4-1971, under which the suit property
had gone/devolved in favour of Krishnappa, was
reduced in writing before the panchayat and
panchas, and the same was signed by the village
people/panchayat people and all the members of
the family including even the plaintiff. Though the
plaintiff disputed that the partition was not
reduced in writing in the form of document Ext.
D-4, on considering the entire evidence on record
and even the deposition of the plaintiff (cross-
examination), he has specifically admitted that
the oral partition had taken place in the year
1971. He has also admitted that he has got
the share which tallies with the document
dated 23-4-1971 (Ext. D-4). Execution of the
document/partition deed/Palupatta dated 23-4-
1971 has been established and proved by
examining different witnesses. The High Court
has refused to look into the said document
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and/or consider document dated 23-4-1971
(Ext. D-4) solely on the ground that it
requires registration and therefore as
it is unregistered, the same cannot be
looked into. However, as observed by
this Court in Kale [Kale v. Director of
consolidation, (1976) 3 SCC 119] that such
a family settlement, though not registered,
would operate as a complete estoppel
against the parties to such a family
settlement. In the aforesaid decision, this Court
considered its earlier decision in S. Shanmugam
Pillai v. K. Shanmugam Pillai [S. Shanmugam
Pillai v. K. Shanmugam Pillai, (1973) 2 SCC 312]
in which it was observed as under: (S.
Shanmugam Pillai case [S. Shanmugam
Pillai v. K. Shanmugam Pillai, (1973) 2 SCC 312],
SCC pp. 319 & 321, paras 13 & 22)
“13. Equitable, principles such as estoppel,
election, family settlement, etc. are not
mere technical rules of evidence. They
have an important purpose to serve in the
administration of justice. The ultimate aim
of the law is to secure justice. In the recent
times in order to render justice between
the parties, courts have been liberally
relying on those principles. We would
hesitate to narrow down their scope.
***
22. As observed by this Court in T.V.R.
Subbu Chetty’s Family Charities case
[T.V.R. Subbu Chetty’s Family
Charities v. M. Raghava Mudaliar, 1961
SCC OnLine SC 142 : AIR 1961 SC 797],
that if a person having full knowledge of
his right as a possible reversioner enters
into a transaction which settles his claim as
well as the claim of the opponents at the
relevant time, he cannot be permitted to
go back on that agreement when reversion
actually falls open.”
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9.5. As held by this Court in Subraya M.N.
[Subraya M.N. v. Vittala M.N., (2016) 8 SCC
705 : (2016) 4 SCC (Civ) 163] even without
registration a written document of family
settlement/family arrangement can be used
as corroborative evidence as explaining the
arrangement made thereunder and conduct
of the parties. In the present case, as
observed hereinabove, even the plaintiff has
also categorically admitted that the oral
partition had taken place on 23-4-1971 and
he also admitted that 3 to 4 panchayat
people were also present. However,
according to him, the same was not reduced
in writing. Therefore, even accepting the case of
the plaintiff that there was an oral partition on
23-4-1971, the document, Ext. D-4 dated 23-4-
1971, to which he is also the signatory and all
other family members are signatory, can be said
to be a list of properties partitioned. Everybody
got right/share as per the oral partition/partition.
Therefore, the same even can be used as
corroborative evidence as explaining the
arrangement made thereunder and conduct of
the parties. Therefore, in the facts and
circumstances of the case, the High Court has
committed a grave/manifest error in not looking
into and/or not considering the document Ext. D-
4 dated 23-4-1971.”
[Emphasis Supplied]
11. This Court has examined the translated copy of the
deed of partition. The document sets out that a partition
was effected on 29.04.1991 between the children of
Venkataramanappa who are; (i) Chinnappa through his
daughter Lakshmamma; (ii) Doddakakappa; (iii)
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Chikkakakappa through his daughter Munivenkatamma;
(iv) K.V.Hanumegowda through his daughter K.H.
Munirathnamma; (v) Chikkanna; (vi) Muniyappa; (vii)
Appajigowda; and (viii) M.Kempanna. It further states
that there are eight persons who have executed the
documents and that Kempanna’s share is described in the
‘H’ schedule to this deed.
12. The defendant No.2 has averred in his evidence that
after the death of Sri.K.V.Hanumappa, the property was
partitioned and divided into eight shares by a partition
deed dated 29.05.1991. It further states that partition
deed has already been acted upon and in pursuance
thereof, defendants were in exclusive possession and
enjoyment of the property under the partition. In
addition, it is stated that the first defendant had falsely
been contending that the property belongs to the
plaintiffs. The relevant extract of the affidavit dated
27.11.2017 is below:
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“3. I further swear that, subsequent to the death of
Sri. K.V. Hanumappa, the above said properties
were partitioned between Smt.Lakshmamma,
Dlo Chennappa, Dodda Kakappa, Smt.
Munivenkatamma, Smt. K.H Munirathnamma,
Chikkanna, M.Kempanna, K. Appaji Gowda and.
K.K Muniyappa vide Partition Deed dated 29-04-
1991 and the above said property was divided into
8 shares and that the 1st Defendant Sri Kempanna
had got ‘H’ schedule property being the 8th
schedule and that the following properties had
fallen to the share of the Sri. M.Kempanna vide
Partition Deed dated 29-04-1991, situate at
Kuppanahalli Kasaba Hobli, Bangarpet Taluk and the
same is detailed hereunder:
a. Wet land bearing Survey No.24/1, measuring 3
acres, 22 guntas out of which 15 guntas,
comprising of borewell and the said property is
bounded on the East by: Kare Katte, West by:
Property of M.S.Anand, North by:Survey No.80
belonging to Defendant No.1 and South by:
Property of Chikkanna and that the Defendants are
cultivating seasonal crops thereon over the said
property.
b. Survey No.4/1A, measuring 1 acre, 29 guntas,
comprising of Eucalyptus Trees and the same is
bounded on the East by: Kare Angala, West by:
Narayanappa and Kempanna’s property, North by:
Guiappa’s property and South by: Appaji Gowda’s
property and the said Appaji Gowda, being the
Grandson of Sanjeevappa and that the Defendants
had cut and removed the said Eucalyptus Trees
Four times and there is standing Eucalyptus Trees
for Cutting.
c. Survey No 68/2, measuring 1 acre, 10
guntas, out of which 4 guntas comprising of 3
tamarind trees and the said property is bounded
on the East by: Munirathnamma’s property West
by:Munivenkatamma’s property, North by:
Lakshmamma’s property and South by: Thoti
Inamthi property and that the Defendants have
entered into a lease of Tamarind Trees20
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WP No. 15726 of 2022HC-KAR
d. Wet land bearing Survey No.80. measuring 6
acres, 26 guntas, out of which 39 quntas, and the
said property is bounded on the East by: Kare
Angala, West by: M.S. Anand, North by: Survey
No.24/1 of Defendant No. 1 and South by:
Chandrappa’s property.
e. Survey No. 80, measuring 6 acres, 26 guntas,
out of which 2 guntas. and the said property is
bounded on the East by: M.S. Anand, West by:
M.S. Anand, North by: Road, and South by: M.S.
Anand and the said property comprises of
Mangalore Tiled Roofed House, Measuring East to
West: 22 feet and North to South: 16 feet and the
Door of the House is facing on the Western side.
f. Wet land bearing Survey No. 104, measuring 1
acre, 7 guntas, out of which 4 guntas, and the said
property is bounded on the East by:
Government land, West by: Road and K.H.
Munirathamma’s land, North by: Road and South
by: Property of Defendant No.1 Sri. M Kempanna,
Measuring 39 guntas.
g. Survey No. 101, measuring 3 acres, 33 guntas,
comprising of Eucalyptus trees and the said
property is bounded on the East by: Shankar’s
land, West by:Smt. Byramma’s land, having got
under Gift Deed dated 03-07-2007, North by:
Narayanappa’s land and South by: K.V. Veeranna’s
property.
h. Survey No. 102. measuring 5 acres, 22 guntas,
comprising of 3 acres of Mango groove and the
Horticulture Department had already given subsidy
for Mango Groove and the said property is
bounded on the East by: Mahadesh Gowda
(Defendant No.2), West by: Chandrappa property,
North by: Appanna property and South by: Kare
Angala and that the Defendants are cultivating in
remaining 2 acres of land.
i. House property comprising of Asbestos Sheets,
measuring East to West: 19 feet and North to21
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WP No. 15726 of 2022HC-KAR
South: 34 feet with a right of 3 feet on the
western side for ingress and egress, bearing
Khatha No.4, and the same is bounded on the East
by: Kaluve, West by: 3 feet space and thereafter
property of K.K. Muniyappa, North by: Road and
South by: Munivenkatamma House and Road.
j. House property comprising of Stone Roofed
Molding, measuring East to West: 100 feet and
North to South: 30 feet, bearing Khatha No.68,
and the same is bounded on the East by: Kunte,
West by: Munivenkatamma property, North by:
Kuppanahalli Government Higher Primary School
and South by: Munivenkatamma’s House and Road
and the said property had been given to the said
school by the 1st Defendant Sri. M. Kempanna and
the same is in Possession of the School Authorities
and the School Buildings are existing.
k. The said Partition also comprises of Hakkudhari
Trees subject to Partition Deed dated 29-04-1991.
i. Old dilapidated Tractor now already sold by the
1st Defendant Sri.M.Kempanna.
XXX XXX XXX
5. I further swear that in pursuance of Partition
Deed dated 29-04-1991, all the Relevant Entries
has been changed in favour of the 1st Defendant Sri.M.
Kempanna vide mutation proceedings bearing
No.31/94-95 and all the Relevant Documents stood in
the name of the 1st Defendant in respect of the above
said properties and the entries in the name of the
Defendants are well within the knowledge of the
Plaintiffs and Plaintiffs are estopped from
contending otherwise and plead ignorance in
respect of the entries standing in the name of the
Defendants.
XXX XXX XXX
7. I further swear that the Plaintiffs and the persons
mentioned above are the signatories to the
partition Deed dated 29-04-1991 and the said
Partition Deed had already been acted upon and in22
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WP No. 15726 of 2022HC-KAR
pursuance of the partition, Defendants have been
in exclusive possession and enjoyment of the
properties got under Partition, as stated supra and
that the Plaintiffs, even though are aware of the said
Partition Deed dated 29-04-1991 between the Plaintiffs
and 1st Defendant Sri. M. Kempanna in order to play
fraud on Defendants had falsely contending that the
property belongs to Plaintiffs and Plaintiffs are having a
right over the property belonging to Defendants.”
[Emphasis Supplied]
13. This document thus has been only relied upon not to
prove a partition but to establish that a partition had
already been taken place and that, in pursuance of the
said partition, the shares of the parties had already been
distributed. This document thus appears to be a document
that has recorded a family arrangement, as has been set
out in P.Anjanappa’s case. Such examination will
however have to be undertaken by the learned Trial Court
at the time of hearing the matter. Given the settled law,
even though this unregistered document cannot be
accepted as substantive evidence, it can be marked for
collateral purposes.
14. In view of the aforegoing, the petition is allowed.
The order dated 26.03.2018 passed on I.A.No.1/2016
23
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WP No. 15726 of 2022
HC-KAR
filed under Order 39 Rule 7 of the Code of Civil Procedure,
1908, in O.S.No.59/2016 by the learned Senior Civil
Judge & Principal JMFC, KGF, is set aside.
15. The petitioners/defendants are permitted to mark
the deed of partition as an exhibit and rely upon the same
for collateral purposes.
16. It is clarified that all rights and contentions of both
parties are left open to be agitated before the learned
Trial Court.
Digitally signed by TARA VITASTA
GANJU
Location: HIGH COURT OF
KARNTAKA
(TARA VITASTA GANJU)
JUDGE
BMV/YN
List No.: 2 Sl No.: 1
24
