Sharadamma vs Narayanaswamy - Writ Petition

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Smt. Sharadamma vs Sri. Narayanaswamy on 23 February, 2026

NC: 2026:KHC:11150
WP No. 15726 of 2022

HC-KAR

 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](https://indiankanoon.org/doc/161831507/))

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,

                        1
                                NC: 2026:KHC:11150
                             WP No. 15726 of 2022
   

HC-KAR

1. SRI. MANI
   S/O. LATE KEMPANNA,
   AGED ABOUT 25 YEARS,

2. SRI. K. M. MAHADESH GOWDA
   S/O. M. KEMPANNA,
   AGED ABOUT 60 YEARS,

3. 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

                       2
                                 NC: 2026:KHC:11150
                             WP No. 15726 of 2022
   

HC-KAR

 W/O. VENKATARAMAPPA,
 AGED ABOUT 59 YEARS,

1. SRI. MUNIYAPPA
   S/O. DODDA KAKAPPA,
   AGED ABOUT 54 YEARS,

2. 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.

3. MUNIRATHNAMMA
   D/O. K.V.HANUMAPPA,
   AGED ABOUT 64 YEARS,
   R/AT HOSUR VILLAGE,
   SULIKUNTE POST,
   BANGARPET TALUK-563 114.

4. SRI. K.K.MUNIYAPPA
   S/O. K.V.HANUMAPPA,
   AGED ABOUT 69 YEARS,

5. SRI. MAGESHA
   S/O. LATE KEMPANNA,
   AGED ABOUT 39 YEARS,

6. 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.

7. THE SPECIAL LAND ACQUISITION OFFICER AND
   COMPETENT AUTHORITY (CHENNAI EXPRESSWAY)
   NATIONAL HIGHWAYS AUTHORITY OF INDIA,

                       3
                                      NC: 2026:KHC:11150
                               WP No. 15726 of 2022
   

HC-KAR

 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](https://indiankanoon.org/doc/1331149/) 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"].

1. By the Impugned Order, the marking of a

memorandum of partition which was sought by the

petitioners/defendants was rejected by the learned Trial 4 NC: 2026:KHC:11150 WP No. 15726 of 2022 HC-KAR

Court, with a finding that the document sought to be

marked as an Exhibit is a document that is inadmissible.

1. 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.

1. 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.

1. 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 5 NC: 2026:KHC:11150 WP No. 15726 of 2022 HC-KAR

several years, this Court deems it apposite to hear and

decide the matter today.

1. 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 6 NC: 2026:KHC:11150 WP No. 15726 of 2022 HC-KAR

judgment of the Supreme Court in the case of [Sita Ram

Bhama Vs. Ramvatar Bhama1](https://indiankanoon.org/doc/59829381/).

1. 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 7 NC: 2026:KHC:11150 WP No. 15726 of 2022 HC-KAR

 not required       to   be    effected     by    registered
 instrument."

[Emphasis Supplied]

1. 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 8 NC: 2026:KHC:11150 WP No. 15726 of 2022 HC-KAR

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](https://indiankanoon.org/doc/685111/) 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](https://indiankanoon.org/doc/561156/) of the Registration
Act.

1. 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;
9 NC: 2026:KHC:11150 WP No. 15726 of 2022 HC-KAR

     (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)](https://indiankanoon.org/doc/157421058/) 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;

1. 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]

1. 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 the 11 NC: 2026:KHC:11150 WP No. 15726 of 2022 HC-KAR

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.

1. 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](https://indiankanoon.org/doc/1202337/) and another2, by placing reliance on

the judgment of the Supreme Court in [Bondar Singh

Vs. Nihal Singh3](https://indiankanoon.org/doc/13649/) 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 12 NC: 2026:KHC:11150 WP No. 15726 of 2022 HC-KAR

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] 13 NC: 2026:KHC:11150 WP No. 15726 of 2022 HC-KAR
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 Trial

4 2025 SCC Online SC 2358 14 NC: 2026:KHC:11150 WP No. 15726 of 2022 HC-KAR

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 15 NC: 2026:KHC:11150 WP No. 15726 of 2022 HC-KAR

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 16 NC: 2026:KHC:11150 WP No. 15726 of 2022 HC-KAR

     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](https://indiankanoon.org/doc/1412888/) 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](https://indiankanoon.org/doc/20394/) v. K. Shanmugam Pillai, (1973) 2 SCC 312]
     in which it was observed as under: ([S.
     Shanmugam        Pillai](https://indiankanoon.org/doc/20394/) case    [[S.   Shanmugam
     Pillai v. K. Shanmugam Pillai](https://indiankanoon.org/doc/20394/), (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.

---

1. 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."

17 NC: 2026:KHC:11150 WP No. 15726 of 2022 HC-KAR

       9.5. As held by this Court in [Subraya M.N.
       [Subraya M.N. v. Vittala M.N.](https://indiankanoon.org/doc/163599410/), (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]

1. 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) 18 NC: 2026:KHC:11150 WP No. 15726 of 2022 HC-KAR

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.

1. 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:

19

NC: 2026:KHC:11150 WP No. 15726 of 2022 HC-KAR

"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 Trees 20 NC: 2026:KHC:11150 WP No. 15726 of 2022 HC-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 to 21 NC: 2026:KHC:11150 WP No. 15726 of 2022 HC-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

1. 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

1. 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 in 22 NC: 2026:KHC:11150 WP No. 15726 of 2022 HC-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]

1. 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.

1. In view of the aforegoing, the petition is allowed.

The order dated 26.03.2018 passed on I.A.No.1/2016 23 NC: 2026:KHC:11150 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.

1. The petitioners/defendants are permitted to mark

the deed of partition as an exhibit and rely upon the same

for collateral purposes.

1. 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