(Prayer: This WP is filed under Articles 226 and 227 of the Constitution of India praying to setting aside order dated 16/07/2025 passed by the XLII addl. city civil and sessions judge, Bangalore (cch-43), in fdp 22/2016 at Annx-A and consequenlty.)

Oral Order:

1. This petition by respondent No.5 in FDP No.22/2016 is directed against the impugned order dated 16.07.2025 passed on I.A.No.3, whereby the application filed by the petitioner/respondent No.5 under Order 26 Rule 9 of CPC seeking appointment of a Court Commissioner to verify and record all suit schedule properties standing in the name of Eramma and her son T.Narayan Reddy was rejected by the trial Court.

2. Heard learned counsel appearing for the petitioner, learned counsel for the respondents and perused the material on record.

3. A perusal of the material on record will indicate that respondent No.1/plaintiff instituted a suit in O.S.No.2697/2010 against the petitioner and other defendants for partition and separate possession of her alleged share in the suit schedule immovable properties comprising of three items of immovable properties. The said suit having been contested by the petitioner and other defendants, the trial Court proceeded to pass a preliminary decree vide judgment and decree dated 18.12.2015 decreeing the suit in favour of the plaintiff against the defendants. Aggrieved by the said judgment and decree passed in O.S.No.2697/2010 dated 18.12.2015, the petitioner/defendant No.5 and his father/defendant No.1 preferred an appeal in RFA No.491/2016, which was dismissed by the Hon'ble Division Bench of this Court vide final judgment and decree dated 19.02.2024. The said judgment and decree passed by this Court in RFA No.491/2016 dated 19.02.2024 has attained finality and become conclusive and binding upon all parties including the petitioner herein. Meanwhile, respondent No.1 having initiated final decree proceedings in the instant FDP No.22/2016 to enforce and implement the said preliminary decree, after disposal of RFA No.491/2016 on 19.02.2024, the petitioner filed the instant application-I.A.No.3 under Order 26 Rule 9 of CPC seeking appointment of a Court Commissioner. The said application having been opposed by the respondents, the trial Court proceeded to pass the impugned order rejecting I.A.No.3 by holdings as under:

                  "ORDER ON I.A.NO.3 U/O.XXVI R.9 OF C.P.C.

                  Heard both sides on I.A.No.III.

                  2.       This application is filed by the respondent No.5 under Order XXVI Rule 9 r/w/s 151 of C.P.C. to appoint court commissioner to verify and record all the suit schedule properties which stood in the name of late Smt.Eramma and her son T.Narayana Reddy.

                  3.       In support of the application respondent No.5 sworn affidavit stating that, some properties of Narayana Reddy have been given to some daughters and huge amount was spent for marriage of son and daughters. Some developments have been made on suit properties by investing huge amount. So, in order to collect all these evidence, enquiry and investigation is required. So, he prayed to appoint the court commissioner.

                  4.       Petitioner filed objection to this application by opposing appointment of the court commissioner. They contended that respondent No.5 shall not bring a new case before this court. So, she prayed to reject the application.

                  5.       Respondent No.2 adopted objection filed by the petitioner.

                  6.       The following Points arise for my consideration:

                  (1)      Whether appointment of the court commissioner is necessary as prayed in I.A.No.III?

                  (2)      What order ?

                  7.       My answer to the above Point No.1 is in negative and point No.2 is as per final order for the following:

                  REASONS

                  8. The preliminary decree was passed by this Court in O.S.No.269/2010 and 1/6th share was awarded to the plaintiff. Plaintiff is daughter of defendant No.1 and sister of defendants No.2 to 5. The said preliminary decree was challenged by defendant No.1 i.e., father and defendant No.5 - brother of plaintiff by filing RFA No.491/2016. The Hon'ble High Court of Karnataka in said RFA by judgment dated 19.02.2024 in para No.5(j) was pleased to observe as under:

                  "5(j) All the above being said, there is force in the submission of learned counsel for the Appellants: after the partition of 1970, the properties fell into the hands of the 1st Appellant who is now dead & gone. Some properties have been given to some daughters; money also have been spent for the marriage of the son & daughters. Some developments have been done by investing huge sums. Equities need to be adjusted. The Respondents in all fairness have come forward with a Joint Memo filed this day in the Court which reads as under:

                  “Joint memo for acceptance dated 19.02.2024

                  The plaintiffs and the defendants humbly submit that they will seek equitable appointment of their share by taking into account of their receipts & gifts and developments before the final decree proceedings after due enquiry.”

                  In view of that, all such aspects need to be examined by the FDP Court, if & when initiated. In that connection, all contentions of the parties need to be kept open and accordingly, they are for being treated in the contemplated Final Decree Proceedings."

                  9. The Hon'ble High Court of Karnataka directed this Court to conduct enquiry in view of joint memo filed by the parties before the Hon'ble High Court. During the pendency of RFA, defendant No.1 - father died. Hence, the share of the plaintiff is increased to 1/5th by Order dated 19.10.2016.

                  10. Now, it is the case of the respondent No.5 - Lokesh Reddy that, he wants to produce the evidence to show that some properties are given to the daughters. Money is spent for their marriage and he developed some suit properties by investing large sum. The respondent No.5 is at liberty to produce evidence before this Court as stated above and he can give evidence about the receipts and gifts and developments made by him, but for that purpose the court commissioner cannot be appointed. The appointment of court commissioner is not at all necessary for local inspection. The court commissioner cannot be appointed to collect the evidence. The respondent No.5 can lead the evidence before this Court on the point urged before the Hon'ble High Court of Karnataka. The Decree is dated 18.12.2015. We are in the year 2025. So, it appears that, only in order to drag on the proceedings this application is filed. Hence, such application cannot be entertained. Hence, I answer Point No.1 in the negative and proceed to pass the following:

                  ORDER

                  I.A.No.III filed by the re No.5 under Order XXVI Rule 9 r/w/s 151 of C.P.C. is rejected.

                  The costs shall follow the event.

                  There is a element of settlement between the parties. Hence, both the parties to the petition shall appear before the Mediation Centre on 7.8.2025.

                  For report before this Court, call on 30.8.2025."

4. Aggrieved by the impugned order passed by the trial Court rejecting I.A.No.3, the petitioner is before this Court by way the present petition.

5. Learned counsel for the petitioner submits that during the pendency of the appeal in RFA No.491/2016, the parties had filed a joint memo agreeing to leave open all contentions to be decided during final decree proceedings and apart from the suit schedule properties which were subject matter of the preliminary decree before the trial Court and this Court in RFA No.491/2016, there were certain other properties which have to be identified and included in the final decree proceedings by appointing a Court Commissioner. It is submitted that this aspect of the matter has not been considered by the trial Court while passing the impugned order, which deserves to be set aside.

6. Per contra, learned counsel for the respondents would submit that as per the judgment and decree passed by the Division Bench of this Court in RFA No.491/2016 dated 19.02.2024, the appeal was dismissed by confirming the preliminary decree passed by the trial Court and it is not open for the petitioner to request the trial Court to traverse or go beyond/behind the preliminary decree, which includes only three items of properties and the petitioner is not entitled to seek inclusion of other properties, which were not subject matter of the preliminary decree passed by the trial Court and this Court and the trial Court was fully justified in dismissing the application filed by the petitioner by passing the impugned order, which does not warrant interference by this Court in the present petition.

7. Before adverting to the rival submissions, it would be necessary to extract the judgment and decree passed by this Court in RFA No.491/2016 dated 19.02.2024, which reads as under:

                  "This Appeal by Defendant Nos. 1 & 5, father & son seeks to lay a challenge to the judgement & Decree dated 18.12.2015 whereby the partition suit in O.S.No.2697/2010 filed by first Respondent- Smt. Nirmala has been decreed. Their operative portion reads as under:

                  “Suit of the plaintiff is decreed with costs.

                  The plaintiff is entitled to get 1/6th share in the suit properties by metes and bounds along with mesne profits.

                  Separate enquiry is to be held regarding mesne profits.

                  Draw preliminary decree accordingly.”

                  2.       BRIEF FACTS OF THE CASE:

                  (a)      One Smt.Eramma W/o Thimmaiah had bought suit properties vide registered sale deeds dated 10.4.1944, 10.6.1950 and 12.7.1953. Copies of these sale deeds are sought to be produced in the Appeal with leave of the Court vide Appellants’ Application filed under Order XLI Rule 27 of the Code of Civil Procedure, 1908 which merits to be allowed for the limited purpose of deciding the nature of property i.e., whether they are ancestral or otherwise, there being no serious objections from the side of Respondents herein.

                  (b)      Smt.Eramma had two sons namely Mr.Narayana Reddy i.e., the first Defendant (Appellant No.1 herein) and Mr.Ramaiah. She had a daughter too namely Smt.Munithayamma. There was a family partition vide registered deed dated 27.7.1970 (Ex.P.5) whereby, these properties were partitioned between the children, Rs.1,000/- having been given to Smt.Eramma as her share. Suit properties are those that had fallen to the share of Mr.Narayana Reddy.

                  (c)      Mr.Narayana Reddy has one son i.e., Defendant No.5 in the suit who happens to be Appellant No.2 herein and four daughters, as well; 1st Respondent herein who was the Plaintiff is one of them. Other daughters happen to be the Respondents in this Appeal and they were Defendants in the subject suit for partition. Only the 1st Appellant had filed the Written Statement and the learned Trial Judge had framed the following three principal issues:

                  (i)       Whether the plaintiff proves that, the suit schedule property is joint family property?

                  (ii)      Whether the defendants prove that, the plaintiff has taken amount as her share and attested as a witness to the Sale Deed executed by him?

                  (iii)     Whether the plaintiff is entitled for reliefs as sought for?

                  (d)      From the side of Plaintiff, she got herself examined as PW.1 and in her deposition, as many as seven documents came to be marked as exhibits P.1 to P.7. They comprised of undisputed Genealogical Tree, revenue documents, Partition Deed of 1970, Encumbrance Certificates and Sketch. From the side of Defendants, the 2nd Appellant got examined as DW.1; in his deposition, as many as nine documents came to be marked as per Exhibits D1 to D9. These documents comprised of four Gift Deeds, one Sale Deed, one Rectification Deed, one Mortgage Deed and two GPAs.

                  (e)      The learned Trial Judge having considered pleadings of the parties and weighed both the oral and documentary evidence, has entered the subject judgement & decree that are put in challenge by the Defendant Nos.1 & 5 who happen to be the father and son. The learned Judge in his wisdom treated the subject properties as being ancestral ones and therefore, all the grandchildren of Smt.Eramma are entitled to a share. In the absence of a Counter Claim or the like, 1/6th share has been granted to the Plaintiff alone.

                  3.       SUBMISSION OF APPELLANTS:

                  (a)      Learned counsel appearing for Appellants vehemently argues that the properties having been bought by Smt.Eramma, she was the absolute owner thereof and she was in the exclusive possession. Because of section 14 of the Hindu Succession Act, 1956, she had full ownership over these properties vide TULASAMMA vs. SESHA REDDI (DEAD) BY L.Rs, AIR 1977 SC 1944. Even after the partition of 1970, these properties do not bear the character of ancestral acquisition; the shares allotted to the 1st Appellant Mr.Narayana Reddy being his separate property, the suit for partition would not lie. This aspect having been lost sight of, the impugned judgement & decree are liable to be voided. The Court below read too much into the stray admission of Appellant No.2 who was examined as DW.1, when there was contra evidentiary material galoring on record and thus, there is a great infirmity warranting interference of this Court. He also highlights the improvements for developments made to the properties in question.

                  4.       CONTENTIONS OF THE RESPONDENTS:

                  Learned Advocates appearing for the Respondents vehemently contended that there is abundant evidentiary material on record coupled with admission of DW.1 that the properties are ancestral acquisition and therefore, the 1st Appellant who was the Defendant No.1 cannot claim them to be his separate property and thereby, dealt with the same accordingly. Even otherwise, the subject properties having been put into a common hotchpot, eventually resulting into joint family property, the assertion of the Appellants that they do not have trappings of ancestral property, pales into insignificance. Lastly, they contend that the impugned judgement & decree even assuming that they have some arguable infirmity, do not merit interference, their unsustainability having not being demonstrated.

                  5.       Having heard the learned counsel for the parties and having perused the Appeal papers, we decline interference in the matter for the following reasons:

                  (a)      The question whether the subject properties are ancestral properties at the hands of the parties to the suit does not much bother us.

                  There is admission of DW.1 who happens to be the 2nd Appellant herein and who was the 5th Defendant in the suit. In his cross-examination dated 15.4.2015, he has said as under:

                  “The suit property is not purchased by myself or my father. It is true that the suit property is our ancestral property. It is true that the Khatha of suit property was standing in the name of my father. It is true that including old house they were in the name of my father… It is true that my family is running from the income of Mobile shop… It is true that myself, Plaintiff & Defendants are the successors to the suit property.”

                  (b)      The vehement submission of learned counsel for the Appellants that, above is a stray admission and therefore, not entitled to weigh much, is bit difficult to countenance, and reasons for the same are not far to seek: firstly, an admission is treated as a substantive piece of evidence in any civilized jurisdiction. Section 58 of the Indian Evidence Act, 1872 states that the admitted facts need not be proved. Of course, section 31 qualifies that admissions are not a conclusive proof of the matter admitted, is also true. However, this qualification cannot be invoked by the Appellants who did not conduct re-examination of DW.1 for explaining away the effect of admission. Nothing is stated even at the Bar as to why such a right of re- examination was not availed. What the Apex Court said in UNITED INDIA INSURANCE COMPANY LIMITED vs. SAMIR CHANDRA CHAUDHARY (2005) SCC OnLine SC 1030 at page 387 is worth adverting to:

                  “…Admission is the best piece of evidence against the persons making admission. As was observed by this Court in Avadh Kishore Das v. Ram Gopal and Ors., AIR (1979) SC 861 in the backdrop of Section 31 of Indian Evidence Act, 1872 (in short the `Evidence Act') it is true that evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong; but they do raise an estoppel and shift the burden of proof placing it on the person making the admission or his representative-in-interest. Unless shown or explained to be wrong, they are an efficacious proof of the facts admitted. As observed by Phipson in his Law of Evidence (1963 Edition, Para 678) as the weight of an admission depends on the circumstances under which it was made, these circumstances may always be proved to impeach or enhance its credibility. The effect of admission is that it shifts the onus on the person admitting the fact on the principle that what a party himself admits to be true may reasonably be presumed to be so, and until the presumption is rebutted, the fact admitted must be taken to be established. An admission is the best evidence that an opposing party can rely upon, and though not conclusive is decisive of matter, unless successfully withdrawn or proved erroneous…”

                  (c)      Secondly, in all the registered conveyances executed by Mr.Narayana Reddy himself, these properties are described to be ancestral ones, barring one sporadic incident. For instance, in Ex.D4, it is written as under:

                

                  Similarly, in Ex.D5, the properties are described:

                  “…Same is Donor’s Ancestral Property, having acquired the same through a Family Partition made between the Donor, his mother and brother on 27.7.1970...”

                  Further, in Ex.D7, it is written as under:

                  “…The same is Donor’s Ancestral Property, having acquired the same by the Donor along with the other parties through a Family Partition Deed made between the Donor and is other family members…”

                  In view of these specific recitals that are not disputed nor explained away as being wrong, there is absolutely no scope for employing the adjective ‘stray’ to the admission given by the 2nd Appellant herein who was examined as DW.2 in the suit. The properties were treated as of joint family, is demonstrated by words, by conduct and by deeds of Defendant No.1 in the suit.

                  (d)      As already observed above, in terms of application under Order XLI Rule 27 of CPC, leave having been granted, the three Sale Deeds of Smt.Eramma dated 10.4.1944, 10.6.1950 and 12.7.1953, having been taken on record, are perused by us. Smt.Eramma became the owner of these properties, remains undisputed. However, she only had put these properties in the common hotchpot parties admittedly being the Hindus governed by Mithakshara and effected partition of the same amongst her two sons and one daughter, herself retaining none vide registered Partition Deed dated 27.7.1970 vide Exhibit P.5. All the parties to the suit have structured their stand in the court below and before this court on the basis of this Partition Deed. It is nobody’s case that it was not a joint hindu family. Even the three sale deeds now sought to be placed on record in terms of Order LXI Rule 27 of the Code do not deviate from this substratum.

                  (e)      It hardly needs to be stated that Mithakshara is a monumental work of sage Vignaneshwara of Marathur, Kalaburagi District in Karnataka. It is his commentary on Yaajnavalkya Smruti. There is a lot of literature in Hindu Law which recognizes the doctrine of blending of individual’s property into joint familys’ so that it becomes the family property for enuring to the benefit of all its members. Mayne’s ‘Treatise on Hindu Law & Usage’, 18th Edition at paragraph 301 says as under:

                  “Property thrown into common stock.- Thirdly, property which was originally self- acquired, may become joint family property, if it has been voluntarily thrown by the owner into the joint stock, with the intention of abandoning all separate claims upon it. This doctrine has been repeatedly recognised by the Privy Council. Perhaps, the strongest case was one, where the owner had actually obtained a statutory title to the property under the Oudh Talukdars Act 1 of 1869. He was held by his conduct to have restored it to the condition of ancestral property…”

                  Law relating to blending of separate property with those of joint family is well settled. If a member of a joint hindu family voluntarily throws his self-acquired property into a common stock with the intention of abandoning his separate claim over it and to render it to be of all other members as well, such a property becomes a joint family property. Such an intention can be inferred by the words and if there are no words, then from his conduct.

                  (f) Admittedly, the martriarch of the family Smt.Eramma having bought several properties by virtue of 1944, 1950 & 1953 Sale Deeds, was the absolute owner thereof. In fact, that is the case pleaded by the Appellants pressing into service section 14 of the 1956 Act in the light of Tulasamma case supra. She had put these properties into common hotchpot of the joint family by virtue of registered Partition Deed of 1970. Had she been a limited owner, she could not have put these properties into a common hotchpot vide MALESSAPPA BANDEPPA vs. DESAI MALLAPPA, (1962) 2 SCJ 589. Added, to invoke this doctrine, the family need not be shown to have other property, with which blending can logically take place. Thus, the invocation of section 14 of the 1956 Act strengthens the case of the Respondents than that of the Appellants in view of the above discussion.

                  (g)      It hardly needs to be stated that every Hindu family is presumed to be joint although such a presumption does not extend to there being joint family properties. The Partition Deed of 1970 in the first part has the narration of Smt.Eramma who states these properties to be her own acquisition and that she was in possession. However, in the latter part, there is a recital as to she and her children being in the joint possession and enjoyment of the same. Added, there were proceedings in respect of these properties under the Inams Abolition Acts and both the sides agree that there are Regrant Orders made by the Special Deputy Commissioner. Nobody has set a case contrary to the content, intent & tenor of the Partition Deed or other conveyances by way of registered Gifts, etc. as already mentioned above. Partitioning of the self acquired property amongst all the members of the family by the matriarch raises a very strong presumption as to the subject properties having been put into a common hotchpot and that there is nothing on record to rebut the same. That being the position, there is an eminent case for the invocation of the doctrine of common hotchpot.

                  (h)      Learned counsel for the Appellants to an extent is right in submitting that the doctrine of blending has not animated the impugned judgement & decree, in so many words. However, if pleadings of the parties coupled with the evidentiary material on record, give scope for the invocation of this doctrine, this Court being the First Appellate Court cannot refrain from pressing into service the said doctrine to save the judgement & decree, which is otherwise vulnerable for challenge, as rightly contended by learned advocates appearing for the Respondents. Even otherwise, our interference that way is eminently needed inasmuch as one of the daughters of the 1st Appellant was not given any share in the property and she was left high & dry in her matrimonial home. This has been duly addressed by the Court below.

                  (i)       Lastly, there is one more aspect that comes in the way of Appellants’ laying a challenge to the judgement & decree. Admittedly, under 1970 Partition Deed, Smt.Eramma had given shares in her properties in favour of two sons & one daughter. One of these sons is the Defendant No.1 in the suit who happens to be the 1st Appellant herein. He having passed away during the pendency of this Appeal, has left the estate for the benefit of parties to the Appeal. All the parties to the 1970 Partition Deed, are estoped from contending to its contra. Ordinarily, a self-acquired property cannot be the subject matter of partition. Mulla on Hindu Law in its 21st Edition at paragraph 302 states:

                  “Subject of partition-The only property that can be divided on a partition is coparcenery property. Separate property cannot be the subject matter of partition…”

                  If this Rule were to be applied, there could not have been partition of 1970 at all unless that is saved by invoking the doctrine of common hotchpot. For the same reason, the question whether the suit properties at the hands of the 1st Defendant Mr.Narayana Reddy assume the character of ancestral properties, pales into insignificance. Even if it is answered in the negative, the other question whether these properties by virtue of blending assumed the character of joint family properties, would arise for consideration and needs to be answered by us in the affirmative because of the discussion supra. Added to this, there is the doctrine of estoppel enacted u/s 115 of the 1872 Act. All the parties to the partition of 1970 having treated the subject property as being joint family property, they cannot contend to the contra, more particularly when others have acted on that premise and altered their position to the detriment. Further, permitting the Appellants to contend to the contrary amounts to permitting them blowing hot and cold at one breath, which the law shuns.

                  (j)      All the above being said, there is force in the submission of learned counsel for the Appellants: after the partition of 1970, the properties fell into the hands of the 1st Appellant who is now dead & gone. Some properties have been given to some daughters; money also have been spent for the marriage of the son & daughters. Some developments have been done by investing huge sums. Equities need to be adjusted. The Respondents in all fairness have come forward with a Joint Memo filed this day in the Court which reads as under:

                  “Joint memo for acceptance dated 19.02.2024

                  The plaintiffs and the defendants humbly submit that they will seek equitable appointment of their share by taking into account of their receipts & gifts and developments before the final decree proceedings after due enquiry.”

                  In view of that, all such aspects need to be examined by the FDP Court, if & when initiated. In that connection, all contentions of the parties need to be kept open and accordingly, they are for being treated in the contemplated Final Decree Proceedings.

                  6. Before parting with this case, we are constrained to observe that there was lot of scope for penning the judgement & decree in question in a far better way, both in terms of language & law. It was Oscar Wilde (1854-1900), an Irish Poet & Dramatist, who had said: “There is scope for improvement even in heaven”. Does it not apply to our judgement too…? We appreciate the able assistance rendered by learned counsel appearing for the Appellants and the learned Advocates appearing for the Respondents.

                  In the above circumstances, this Appeal fails, however subject to observations herein above made."

8. As can be seen from the aforesaid judgment and decree passed by this Court, the preliminary decree passed by the trial Court was confirmed which declared that the parties are entitled to their legitimate share only in respect of three items of suit schedule properties and not in respect of any other properties, which were not subject matter of the suit before the trial Court or the appeal before this Court.

9. In this context, it is relevant to state that merely because the parties had agreed that they would seek equitable apportionment of their share by taking into account their receipts and gifts and developments before the final decree proceedings after due enquiry, the said joint memo or the directions passed by this Court in pursuance of the same cannot be construed or treated as permitting the petitioner to seek appointment of a Court Commissioner or inclusion of properties other than the properties which were subject matter of the preliminary decree passed by the trial Court and confirmed by this Court. It cannot be gainsaid that the final decree Court is not entitled to traverse or go beyond/behind the preliminary decree passed in the suit except on account of intervening/supervening circumstances that occurred after passing of the preliminary decree and before drawing up of the final decree.

10. In the instant case, a perusal of the application- I.A.No.3 and the affidavit in support of the same will indicate that the petitioner has not made out any supervening/subsequent/intervening circumstances which have occurred after the preliminary decree so as to enable the petitioner to seek appointment of a Court Commissioner by including properties other than the properties which were subject matter of the preliminary decree which was confirmed by this Court in RFA No.491/2016 dated 19.02.2024.

11. Under these circumstances, I am of the considered opinion that the trial Court was fully justified in rejecting the application filed by the petitioner by passing the impugned order which cannot be said to have occasioned failure of justice warranting interference by this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India as held by the held by the Apex Court in the cases of Radhey Shyam and Ors. vs. Chhabi Nath and Ors [(2015) 5 SCC 423[, K.P.Natarajan and Ors. vs. Muthalammal and Ors [AIR 2021 SC 3443[ and Mohd. Ali v. V.Jaya [(2022) 10 SCC 477].

12. Accordingly, I do not find any merit in the petition and the same is hereby disposed of without interfering with the impugned order. However, liberty is reserved in favour of the petitioner to take recourse to such other remedies as available in law subject to all just exceptions.

                  Subject to the aforesaid directions and liberty reserved in favour of the petitioner, the petition stands disposed of without interfering with the impugned order.