IN THE HIGH COURT OF KARNATAKA, PRINCIPAL BENCH, BENGALURU

DATED THIS FRIDAY, THE 9TH DAY OF SEPTEMBER 2020

BEFORE:
THE HONOURABLE SRI JUSTICE CHIDANANDA GOWDA
&
THE HONOURABLE SMT JUSTICE KOTTRAWWA MULGI

IN RFA No. 682 of 2020(PAR)

BETWEEN
Shree Choudeshwari Temple Trust, Bhavanthi Street, Banerghatta Rd, Blore -----– APPELLANT
AND
1. Padmavathi W/o Late Srinivas aged about 65, 4/45,Bhavani Layout, BH Post, Blore -29
2. Sukumari D/o Padmavathi, aged 28 years, residing ---------------do----------------
3. Uma, D/o Padmavathi, aged 25 years, residing ---------------do-------------------
4. Usha, D/o Padmavathi, aged 22 years, residing ---------------do-------------------
5. Parvathi, W/o Chowdayya, aged 19 years, 27th Main,Sector 5, HSR Layout, B’luru -102
------RESPONDENTS 1 to 5.

THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER XLI OF CODE OF CIVIL PROCEDURE,
1908 AGAIST THE JUDGMENT AND DECREE DATED 03.07.2009 PASSED IN O.S. NO. 1358/2005 ON
THE FILE OF THE XCTH CITY CIVIL COURT, BENGALURU, DECREEING THE SUIT FOR PARTITION
AND SEPARATE POSSESSION. THIS APPEAL COMING FOR HEARING, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
CHIDANANDA GOWDA J.,
1. The fifth defendant trust challenges the preliminary decree for partition passed by the City Civil Court
granting 1/5th share to the plaintiff over the plaint schedule property. The the plaint schedule property had
been set apart to the share of the plaintiff and defendants 1 to 4 as ’D’ Schedule to Ex. P2 partition deed
dated 10.10.1990. Defendants 1 to 4 subsequently executed a sale deed in favour of the fifth defendant
allegedly incuding the rights of the plaintiff who was then admittedly a minor. No permission was obtained
from court under section 8(2) of the Hindu Minority and Guardianship Act in order to alienate the share of
the minor as is required. It appears that a sum of 8,00,000/- was deposited in South Indian Bank
purporting to be the share of the minor which is said to be withdrawn on maturity. The plantiff ignores the
sale deed as not binding on her interest in the plaint schedule property and seeks for partition by metes
and bounds.
2. The fifth defendant who alone contests the suit does not dispute the execution of the sale deed wherein
the sale of the minor as well as the earlier partition deed is conceded. The prior partition deed (Document
no.2284/1990, SRO, Bengaluru) has been specifically mentioned in the sale deed excuted in favour of the
fifth defendant. However, the fifth defendant has put forward a new case that the Kumti family head had
earlier gifted the property in favour of the diety. Ex. D1 gift deed dated 10.12.1908 in favour of the diety
managed by the fifth defendant trust is relied on to show that the plaintiff has no pre-existing title. Such a
contention does not lie in the mouth of the fifth defendant since the very sale deed in its favour is
conceding the earlier partition deed and the shre of the plaintiff. Neither the sale deed (Doc No.
1666/2002) nor its content relied on by the plaintiff is disputed by the fifth defendant and the same
operates as an estoppel by conduct against it. Not a scrap of paper has been produced to show that Ex.
D1 gift deed was acted upon by asserting possession over the property or paying tax in respect thereof.
3. The following observations in the judgment of the court below are apposite:
"It is to be noted that since 1908 till 2005 D5 admitted the title of P and D1 to D4.
They obtained sale deed in their favour and acting on it mutation was affected. As per
Ex. D1 they admitted possession of P and D1 to D4. No revenue tax has been paid till
2002 except registration copy of document 1668/1908. There is no scrap of paper to prove
title, possession or management of property. Being a temple trust, there cannot be any
difficulty to produce documentary evidence. There must be registers showing immovable
properties of temple. If the temple has been in possession, revenue tax must be paid to
the idol. If the property is capable of generating income, it must find place in income
and expenditure register. Even if Ex. B1 is assumed to be valid, it has not been acted
upon. It appears that gift has not been taken into effect."
The appreciation of the evidence on record by the court below to hold that Ex. D1 gift deed has not been
acted upon does not suffer from any irregularity or illegality as to warrant interference.
4. The suit for partition has been filed within three years of the plaintiff attaining majority and all that is
prayed for is division of her pre-existing right by metes and bounds. There is no necessity to seek a
declaration that the sale deed in favour of the fifth defendant to which she is not a party is bad or not
binding. This specific averment in the plaint is that the plaintiff is entitled to ignore the sale deed as not
binding on her share for want of permission to alienate from court. The Supreme Court has gone to the
extent of holding that such an alienation is void in Kalathil Sreedharan v. Komath Pandyala Prasanna
[(1996) 6 SCC 218]. It should be borne in mind that the suit is not for recovery of possession after
annulling the sale deed but to effect partition of the pre-existing right. The principles of estoppel in view of
the recitals in the sale deed in favour of the fifth defendant debars it from putting forth any contention
contrary. It was after conceding the title of the plaintiff and defendants 1 to 4 did the fifth defendant
purchase the property by sale deed by also providing a share to the minor plaintiff.
5. The plaintiff has categorically relinquished her share over the two cents of property occupied by
anganwadi and hence no question of non-joinder of the state arises. The discrepancy, if any, in the plaint
schedule property, can as well be sorted out in the final decree proceedings where the property would be
identified with exactitude. The fifth defendant has also been given liberty to recover the sum of
8,00,000/-paid to the palintiff as well as defendants 1 to 4 under the sale deed. Such adjustments can be
made in final decree proceedings wherein the question of payment of owelty for equalisation of shares
also are involved. We do not find any error in warranting interference in the preliminary decree for
partition passed by the City Civil Court whereunder the plaintiff has been given her lawful and legitimate
share.
6. The appeal is hereby dismissed. No Costs.
Sd/-
CHIDANANDA GOWDA
Judge
Sd/-
KOTTRAWWA MULGI
Judge