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Karnataka High Court Notable

Karnataka High Court: non-alienating sharer need not seek formal declaration against sale in partition suit

Court: High Court of Karnataka
Date of judgment: 28 September 2026
Case: RFA/1530/2020
Parties: MRS R RADHA Vs MR R SATHYANARAYANA
Bench: SHIVASHANKAR AMARANNAVAR
Outcome: Dismissed

Summary

The plaintiff's appeal in RFA No. 1530/2020 was allowed and the appeals of defendants Nos. 2 and 3 were dismissed. The plaintiff and defendant No. 1 hold equal shares in suit items 1 and 2. A sharer in a partition suit cannot be non-suited merely because she did not seek a formal declaration that a sale by a family member is not binding on her.

The plaintiff sued in 2004 for partition and separate possession of her share in two properties and for mesne profits. Her great grandfather had settled them on her father by a registered deed dated 28.06.1939. The father died intestate in April 1980, leaving the plaintiff and her brother (defendant No. 1). The brother sold item No. 1 to defendant No. 2 in 1998 and, with his children, item No. 2 to defendant No. 3 in 2001, without the plaintiff's consent.

The trial Court decreed the suit in part on 30.05.2020. It gave the plaintiff a half share in item No. 2, following an earlier decree against defendant No. 3 that had become final when his appeal, RFA No. 1063/2010, was dismissed. It treated item No. 1 as ancestral and gave the plaintiff a one-fourth share in item No. 1. Three appeals followed: RFA No. 723/2021 by defendant No. 2, RFA No. 1530/2020 by the plaintiff and RFA No. 203/2021 by defendant No. 3, heard together.

The question before the court

Whether the appeal of defendant No. 3 survived after his earlier appeal on the same decree was dismissed
Whether item No. 1 was ancestral property or the father's separate property, fixing the plaintiff's share
Whether the plaintiff had to seek a declaration that the sale deeds were not binding on her
Whether the plaint was properly valued under Section 35(1) of the Karnataka Court Fee and Suit Valuation Act, and whether the suit was barred by limitation

What each side argued

Defendant No. 2 argued that the plaintiff had paid court fee under Section 35(2) as a person in joint possession, that the plaint was never amended to claim possession under Section 35(1), and that the prayer sought in IA No. 1/2024 could not be allowed.
Defendant No. 2 said a non-executant of a deed must seek a declaration that it is not binding on her, and that a suit filed in 2004 against a 1998 registered sale deed was beyond three years.
Defendant No. 2 also said he had been a tenant of item No. 1 since 1980, that the trial Court rightly treated the properties as coparcenary, and that the plaintiff had admitted she was not in possession.
The plaintiff argued that the properties were the self-acquired property of her great grandfather, as defendant No. 1 admitted in cross-examination, so she and her brother each held a half share.
The plaintiff said there is no limitation for partition, a declaration against the sale is not necessary, and she had filed a fresh valuation slip and paid Rs.87,125 under Section 35(1) in January 2019.

The court's decision

The Court first held that RFA No. 203/2021 by defendant No. 3 was not maintainable and did not survive. The decree against him had become final when his appeal, RFA No. 1063/2010, was dismissed on merits on 02.12.2010, and the 2020 judgment on item No. 2 rested on that dismissal.

On the nature of the property, the Court noted that defendant No. 1 admitted in cross-examination that the properties were the self-acquired property of his great grandfather. The settlement deed of 1939, which defendant No. 2 himself described as in effect a partition deed, gave items 1 and 2 to the plaintiff's father. Relying on Angadi Chandranna v. Shankar (2025 INSC 532), the Court held that a share obtained on partition becomes the recipient's self-acquired property. The plaintiff and defendant No. 1, as daughter and son, therefore held equal shares, and the trial Court was not justified in treating item No. 1 as ancestral and awarding a one-fourth share.

On court fee, the Court referred to the Division Bench decision in B.S. Malleshappa and the coordinate Bench ruling in Premaleela. It found that, after the order of 02.06.2017 on IA No. 29, the plaint was amended to seek possession of item No. 1. The plaintiff, who admitted she was not in possession of item No. 1, then filed a fresh valuation memo and paid Rs.87,125 under Section 35(1). The contention that the plaint was not amended and the suit not valued under Section 35(1) was rejected.

On the declaration, the Court considered Suhrid Singh, the Division Bench in Ganapati Santaram Bhosale, Vadde Sanna Hulugappa, Omkar, Munithayamma and Ahalya H. Shetty. It held that a sharer cannot be non-suited for not seeking a formal declaration, because her right is a pre-existing one, and an alienation does not take away her legitimate share unless shown to be for the benefit of the family. It also noted that paragraph 7 of the plaint pleaded that the sales were without her consent and not binding on her. IA No. 1/2024 was therefore disposed of as not necessary.

On limitation, relying on Vidya Devi v. Prem Prakash, the Court held that no limitation is prescribed for partition and there is always a running cause of action. Defendant No. 2 was a tenant in possession both before and after the sale, so the plaintiff did not know of it, and she was not seeking to set aside the sale deed. The suit was not barred.

The Court dismissed RFA No. 723/2021 and RFA No. 203/2021 and allowed RFA No. 1530/2020. It modified the decree of 30.05.2020 in OS No. 9308/2004: the suit is decreed with costs; the plaintiff and defendant No. 2 are each entitled to a half share in item No. 1 with separate possession; the plaintiff and defendant No. 3 are each entitled to a half share in item No. 2, as per the decree in RFA No. 1063/2010, with separate possession; and a decree is to be drawn accordingly.

Precedents referred to

B.S. Malleshappa v. Koratagigere B. Shivalingappa, 2001 SCC Online Kar 297
Ganapati Santaram Bhosale v. Ramachandra Subbarao Kulkarni, 1985 SCC OnLine Kar 54
Munithayamma v. Byanna, AIR Online 2022 KAR 187
Ahalya H. Shetty v. Vathsala S. Shetty, AIR 2024 Karnataka 47
Suhrid Singh alias Sardool Singh v. Randhir Singh, (2010) 12 SCC 112
Vidya Devi alias Vidya Vati v. Prem Prakash, (1995) 4 SCC 496
Angadi Chandranna v. Shankar, 2025 INSC 532
Smt. Premaleela v. C. Nagappa, W.P. 11379/2015

Provisions referred to

Section 96, Code of Civil Procedure, 1908
Sections 35(1) and 35(2), Karnataka Court Fee and Suit Valuation Act
Section 2(24), Indian Stamp Act, 1899
Section 27, Limitation Act

Read the full judgment (PDF) ↗

Official source: High Court of Karnataka. The PDF above is a copy from an open dataset of the court's public records.

This summary is prepared for general assistance only. It may contain errors and is not legal advice — rely on the full judgment.

Property Partition Civil Procedure Court Fee Limitation

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