Karnataka High Court
Veerappa And Ors. vs Smt. Halavva And Ors. on 12 February, 2008
Equivalent citations: ILR2008KAR2159, AIR 2008 (NOC) 2172 (KAR.) = 2008 (3) AIR KAR R 253, 2008 (3) AIR KANT HCR 253, 2008 A I H C 2449, (2008) 5 KANT LJ 485
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
JUDGMENT D.V. Shylendra Kumar, J.
1. This Second Appeal is by the legal heirs of the second defendant in OS No. 89 of 1982 on the file of the court of the Munsiff and JMFC at Hirekerur wherein the defendants suffered a decree to yield one-third share in the suit schedule properties in favour of the plaintiff who had sued for partition and separate possession of her share in the suit schedule properties and could not wriggle out of this Judgment and decree of the trial court, in their appeal RA No. 27 of 1987 before the court of Civil Judge [Sr. Dn.,] & Prl. JMFC, Ranebennur, and are therefore before this court invoking Section 100 of the Code of Civil Procedure.
2. The suit for partition by the plaintiff was on the premise that the suit schedule properties were the joint family properties of the family with one Abalurappa as Propositus who had as many as eight sons and the plaintiff one Halavva claiming as the daughter of Mallashetappa, grand son of the propositus Abalurappa, through his first son Veerabasappa. The first Defendant Prabhappa happens to be another grandson of the propositus -Abalurappa being son of his second son Gurupadappa. The second defendant though is son of third son Veerappa had been described as adopted son of fourth son of the propositus Shivappa and therefore being given the share which Shivappa, son of the propositus - Abalurappa would get in the properties. The properties were sought to be shared amongst the descendants of only these three sons as it was the case of the plaintiff that the sixth, seventh and eighth son of the propositus - Abalurappa had got separated earlier and it is only the branch comprising of other five sons of Abalurappa who remained in the joint family and even here the fifth son - Basateppa or his heirs were not made parties as perhaps the understanding was that Basateppa not leaving any male heirs, the share of Basateppa had reverted and remained with the family. The genealogy of the family indicating the relationship of parties is as under:
ABALURAPPA (DECEASED) | ___________________________________________|_______________________________________ | | | | | | | | II. III. IV. V. VI. VII. VIII.
Veerabasappa Gurupadappa Veerappa Shivappa Basateppa Kirtappa Gurappa Shivabasappa (Dead) (Dead) (Dead) (Dead) (Dead) (Dead) (Dead) (Dead) _____|_________ | | | | | | | | Malavva Puttavva | | | (Dead) (Dead) | | |________________________________________ Daughter (Daughter) | |____________________ | of ________|_______________________ | | Veerabasappa | | | | | | | | | | | | | | Sevamma Prabhappa Rudravva Basavva | | | (Dead) (1st (Dead) (Dead) | | | Defendant) | | | | | Mallasbettappa | | (Adopted son of | | Veerabasappa) _______ | | | | _______________________|______________ | | |________| | | | Halavva (Plaintiff) Mallasbattappa Besavenneppa Veerabhjadrappa | (Husband Siddalingappa) (Died on (Dead) | | | 18.12.1972) (Wife Channaveeravva) | | | | | Baasnagouda |________ Veerabhadrappa (Defendant No. 10) (Adopted son of Shivappa) Defendent No. 2 ______________________________________________________________|_____ | | | | | | Veerappa Gurupadappa Shivappa Besateppa Besavarajappa Gopalappa (3rd Deft) (4th Deft) (5th Deft) (6th Deft) (7th Deft) (8th Deft)
3. Though that would leave four sons and their descendants to share the properties, the branch of the third son Veerappa having dried up with one son each, first and third son having gone in adoption to the branches of Veerappa's brother i.e., Mallashettappa having been adopted by first son Veerabasappa and Veerabhadrappa, third son of Veerappa having been adopted by fourth son Shivappa and the only other son of Veerappa, namely, Basavannappa having died without male issues, the version of the plaintiff was that joint family properties were to be shared amongst three sons and their descendants and that is how one-third share was claimed by the plaintiff as legal heirs of Mallashettappa adopted son of Veerabasappa who would have one-third share in the family properties.
4. While the first son of Gurupadappa who himself happens to be second son of propositus - Abalurappa figured as first defendant to the suit, Veerabhadrappa adopted son of Shivappa who was the fourth son of propositus - Abalurappa figured as second defendant, the sons of Veerabhadrappa figuring as defendants 3 to 8, a purchaser of the family property from the first defendant Prabhappa figuring as ninth defendant and the tenth defendant being the son of the plaintiff made the array of defendants.
5. The defendant Nos. l to 8 contested the suit. While the statement is said to have been filed on behalf of the first defendant, it is signed by the third defendant and is adopted by all other defendants upto eighth defendant. The defendant Nos. 9 and 10 while appeared through counsel, remained mere spectators than active participation.
6. The defendants denied all the plaint averments, pleaded that the suit is not tenable for not impleading all necessary parties to the suit; that the description of the properties and valuation is also incorrect; that even the family tree as mentioned in the third schedule to the plaint is incorrect and not admitted by the defendants and not binding on them; that the plaintiff was not entitled for one-third share nor had she sought share in the properties; that she had never demanded any such share; that the value of the properties exceeding Rs. 10,000/-, the court had no jurisdiction to entertain the suit; that there is no cause of action for filing the suit; that the suit was also barred by limitation as the suit had not been filed within three years from the date since when the defendants have been enjoying the properties exclusively as their respective properties and therefore pleaded for dismissal of the suit.
7. The defence of the defendants was mainly that there was already a partition in the family; that the family had partitioned even prior to the year 1935 and the separated members of the family were in possession and enjoyment of their respective shares and had conducted transactions as such; that the plaintiff's father had been given a share in the family properties; that to his share had fallen the agricultural land in Sy. No. 21 measuring 1 acre, Sy. No. 16 measuring 9 acres, Sy. No. 21 measuring 3 acres; that these properties had stood in the name of the plaintiff's father and it had been so mutated in the revenue records; that in fact, after the death of plaintiff's father, such properties had been mutated in the name of the tenth defendant who is the son of the plaintiff herself and are in separate possession and enjoyment of these properties; that the plaintiff is not entitled for any other share in the suit properties; that the first and second defendant have been transacting the properties, figuring in the suit schedule as their respective properties even before the year 1935; that they have considerably developed the properties from out of the properties that had fallen to their respective share; that there have been further transactions between the first and second defendant, particularly, in terms of sale deed dated 25.5.1935 and another sale deed dated 16.7.1940 where under the first defendant had purchased some properties and had in turn settled some of those properties in favour of the Defendant No. 2; that therefore the plaintiff was not entitled for any further share in the properties which are in possession and enjoyment of the defendant Nos. l to 8 and the suit is liable to be dismissed.
8. In the light of such rival pleadings, the trial court framed the following issues:
1. Whether plaintiff proves that, three sons of propositus-Abalurappa partitioned during his life time and the remaining five sons of Abalurappa lived jointly during the life time of Abalurappa and even after his death as contended in para No. 4 of the plaint?
2. Whether the genealogy given by plaintiff along with plaint is correct?
3. Whether the plaintiff proves that Veerabasappa adopted Mallashetteppa & Sivappa adopted Veerabasappa as contended in para No. 6 of the plaint?
4. Whether the plaintiff further proves that she is entitled for l^"1 share in the suit properties?
5. Whether defendant Nos. 1 to 7 proves that the partition has taken place between the ancestors of plaintiff and defendant Nos. 1 and 2 earlier to 1935 and suit R.S. No. 21/1 A, 16/9,21/3 had fallen to the share of the father of plaintiff?
6. Whether they prove that suit R.S. No. 21/9, 16/5, 62/5 and some portion in R.S. No. 7 are the self acquired property of defendant No. 2?
7. Whether they further prove that R.S. No. 5/5,5/6, 13/5 are the self acquired properties of defendant No. 1?
8. Whether they further prove that defendant No. 1 alienated RS No. 62/3, 21/1B, 7/2 to defendant No. 2 after partition?
9. Whether the suit is bad for non-joinder of necessary parties?
10. Whether this court has jurisdiction to try this suit?
11. Whether the suit is barred by time?
12. What order or decree?
9. The parties went to trial on the basis of such issues. On behalf of the plaintiff, one Shivamurthy was examined as PW.l who was brother of the plaintiff's husband, PW2 and PW3 being Advocates who had been commissioned to conduct an inventory and submit a report of the list of the properties of the family etc., PW4 and PW5 being independent witnesses to support the case of the plaintiff and documentary evidence Exhibits.Pl to P44 were marked on behalf of the plaintiff.
10. On behalf of the defendants, while the third defendant was examined as DW. l, first defendant was examined as DW. 2 and a resident of the village was examined as DW. 3. The documentary evidence Exhibits. D 1 to D14 were marked.
11. The documentary evidence on behalf of either of the parties essentially comprised of the revenue records and revenue receipts, some sale deeds. Amongst the documents marked on behalf of the plaintiff, Exhibit.P40 a registered lease deed, Exhibit.P41 a registered sale deed, Exhibit.P42 - a mortgage deed of the year 1940 figured as prominent documents.
12. On behalf of the defendants, apart from other revenue extracts, Exhibit.D3 sale deed dated 16.7.1940 in favour of the first defendant executed by the third parties in respect of certain properties, some of the items of the suit schedule properties which in turn along with other properties is said to have been relinquished in favour of the second defendant figured as prominent documents. An undated 'palu patti' though was sought to be marked as a document, was not allowed by the trial court for the reason that it was not on any stamp paper and not registered.
13. The trial court answered the issues 1 to 4 and 10 in the affirmative, issues 5 to 9 and 11 were answered in the negative and therefore decreed the suit of the plaintiff for allotting one-third share in favour of the plaintiff in respect of the suit schedule properties 1 [A] to 1 [C] and also the movables.
The aggrieved defendants 1 to 8 appealed before the lower appellate court.
14. The defendants mainly contended that the Judgment and decree of the trial court was not sustainable, contrary to the law, facts and evidence; that the trial court has overlooked substantial evidence to indicate a division in the family; that the trial court should have given due credence to the oral evidence of defendants 1 to 3 and documentary evidence placed before the court in their support; that the issues had not been properly framed; that shifting of the burden on the defendants to prove the division in the family was an erroneous approach by the trial court; that the presumption of joint status gets weakened with the passage of time and generations; that the trial court should have noticed admission on the part of the plaintiff about a division in the family, in the sense, three sons of the propositus - Abalurappa having already been separated and they or their branches having not been made parties to the suit was proof of the partition in the family; that the description of properties as indicated in the revenue records standing in the name of the branches of respective sons of the original propositus -Abalurappa, was a clear and undisputable proof of the division in the family; that the trial court could not have overlooked such weighty evidence to decree the suit; that the documentary evidence in the form of Exhibit.D3 could not have been disbelieved which clearly demonstrated the division in the family etc.
15. On behalf of the plaintiff, the decree was sought to be defended. On the arguments addressed by counsel for respective parties, the lower appellate court formulated the following points for its determination.
1. Whether trial court erred in holding that five sons of Abalurappa lived jointly during life time of Abalurappa and even after his death?
2. Whether trial court erred in holding that defendant No. 1 to 7 failed to prove that there was a partition between the ancestors of plaintiff and defendants No. 1 and 2 during 1935 and R.S. No. 21/1 A, 16/9, 21/3 had fallen to the share of plaintiff and R.S. No. 21/9,61/5, 62/5 and some portion of R.S. No. 7 and R.S. 5/5,5/6,13/5 are not the self acquired properties of defendants No. 2 and 1 respectively?
3. Whether trial court erred in holding that the defendant No. 1 failed to prove that he alienated R.S. No. 62/ 3, 71/1B, 7/2 to defendant No. 2 after partition?
4. Whether respondent No. 2 has shown sufficient grounds for non filing of his W.S.?
5. Whether respondent No. 2 proves that he is a bonafide purchaser of suit-1(3) of land for valuable consideration?
6. Whether judgment and decree of the trial court warrants any interference?
7. What order?
16. All the points having been answered in the negative and against the appellants, the appeal was inevitably dismissed. One significant development before the lower appellate court was that the appellant had sought to place additional evidence through an application under Rule 27 of Order XLI of die Code of Civil Procedure. This had been allowed by the lower appellate court and Exhibit. D 15 a registered sale deed dated 11.5.1935 a sale deed executed in favour of the second defendant by Basateppa, the fifth son of the propositus -Abalurappa had been marked to indicate that there was not only division in the family even by or before the year 1935, but also to claim that suit schedule items 4, 5, 12, 15 and 17 of 'A' Schedule property and items 1, 2 and 3 of the 'B' Schedule property were exclusive properties of the second defendant. The story of additional evidence does not stop here as the present appellants have filed one such application before the court in IA No. I of 2005 to bring on record another fourteen documents said to support the case of the defendants that there was a prior partition/division in the family before the year 1935 itself.
17. The defendants undaunted by the dismissal of the appeal have preferred the second appeal.
This court while admitting this appeal on 23.9.2002 had framed the following substantial question of law for determination.
Whether the court below is justified in decreeing the suit for partition when the evidence on record clearly point out that there was an earlier partition and the revenue entries are made in accordance with the said partition?
18. Sri. Mogali, learned Counsel for the appellants has through a memo dated 31.1.2008 filed before the court submitted that there are more substantial questions of law which arise in the course of the Judgment and decree passed by the courts below; that the following additional questions are also required to be examined for proper disposal of this appeal.
1. Whether the courts below are justified in law in holding that, the suit is not bad for non-joinder of necessary party, when admittedly the LR's of Vth son of the Propositus are alive and are not impleaded in the suit.
2. Whether the courts below are justified in law in granting a Decree for l/3rd share, when the case of plaintiff herself being that, Five sons of the propositus continued to live jointly after separation of last 3 sons.
3. Whether the courts below are right in law in holding that Item No. 4, 5, 15, 17 of "A" Schedule & Item No. 1,2 & 3 of "B" Schedule are not the self acquired properties of the Defendant No. 2 when there a Registered sale deed dt: 11.05.1935 i.e. Ex. D. 15 in his name which sans the challenge.
4. Whether the courts below are right in law in holding that Item No. 16, 9 & 4 are not the self acquired properties of Defendant No. 2, though they are purchased through a Registered Sale Deed dt. 25.05.1972 from Defendant No. 1, which sale deed is not challenged by the plaintiff.
5. Whether the courts below are justified in law in holding that, Item No. 2,3,6 & 13 of "A" Schedule are not the self acquired properties of Defendant No. 2, when the right therein is relinquished by Defendant No. 1, in favour of Defendant No. 2 in the year 1968 (M.E. No. 748) which the Defendant No. 1 in turn had purchased from a third party through a Regd. Sale deed dt. 16.07.1940 (ME No. 173).
6. Whether the courts below are right in law in holding that Item No. 11 of "A" Schedule is not the self acquired property of Defendant No. 2, when the right therein has been relinquished in favour of Defendant No. 2 (M.E. No. 861 dt. 15.04.1974) by Gurushanthappa S/o Veerupakshappa Ancher, who represents the 7th branch of family of the propositus.
7. Whether the courts below are right in law in permitting the P.A., holding to be examined on behalf of the plaintiff, who is not a members of family of the parties to lis in the light of decision of theHon'ble Supreme Court, Reported in ILR 2005 (1) S.C. 729.
8. Whether the courts below are right in law in not marking the partition deed on the ground that, it is not a Registered document.
9. Whether the courts below are right in law in holding that, the suit is not barred by Limitation.
19. I have heard Sri. Mogali, learned Counsel for the appellants and Sri. Kodandaram, learned Counsel for respondents 1 and 3 who have made elaborate submissions and have taken me through the records and the Judgments of the courts below.
20. One of the main contentions urged by learned Counsel for the appellants is that apart from other questions, the lower appellate court has committed a grave error in law in not adverting to a material evidence placed before the court in the form of Exhibit.D15, a registered sale deed which was specifically brought on record through an application for production of additional evidence which application had been allowed by the lower appellate court but the learned Judge of the lower appellate court has not shown any awareness to this document, not discussed as to the impact of the document to the outcome of the appeal and dispute between the parties and this in itself has vitiated the Judgment of the lower appellate court.
21. Countering this submission, Sri. Kodandaram, learned Counsel for the respondents 1 and 3 submits that though the learned Judge of the lower appellate court has not discussed the impact of Exhibit!) 15, the overall impact of the document has been generally discussed and it cannot be said that the learned Judge of the lower appellate court was not aware of this fact even after marking Exhibit D 15.
22. Yet another ground vehemendy urged on behalf of the appellants is refusal of the trial court to mark the 'palu patti' without giving proper reasons; that it was a piece of substantial evidence which could have clearly tilted the result in favour of the defendants1 that not marking this document has substantially prejudiced the defence of the defendants; that an application for additional evidence produced before this court as submitted is justified to be allowed and the defendants permitted to produce the additional documents and it is only in support of the existing plea in the written statement and documents which the defendants were able to secure subsequently etc.
23. Both the courts below have committed a basic flaw in treating the suit as though it is a case of a member of the joint family suing for partition and separate possession of the share of the plaintiff in the joint family properties. The plaintiff who claimed as daughter of Mallashettappa and Mallashettappa having died on 18.12.1972, could be claiming only as a person succeeding to the share of Mallashettappa assuming that there was in existence a joint family at the time of death of Mallashettappa, comprising of the plaintiff's father and the defendants and therefore the claim can only be in terms of Section 8 of the Hindu Succession Act, 1956, as on the death of Mallashettappa in the year 1972, his share in the joint family passes by succession to his heirs and Halawa - the plaintiff being the sole heir, she could succeed to the entire share of Mallashettappa in the family.
24. In this background, the question can be as to whether Mallashettappa and the defendants constituted a joint family which owned the suit schedule properties.
25. The courts below have committed a serious error in law in not correctly appreciating the evidence on record, not only the evidence placed on behalf of the plaintiff which by itself could probabilize that Mallashettappa was not a member of the joint family comprising of himself and defendants, but had obviously separated from the family and had been dealing with the properties that had fallen to his share as his own properties. But, more importantly, the evidence placed on record by the defendants, Exhibit.D3 - sale deed of the year 1940 executed in favour of the first Defendant by a third party in respect of some suit schedule properties in the years 1968,1972 and thereafter which are all transactions at a point of time before any dispute arose between the parties, very strongly probabilizing the case of the defendants that the family had got divided much earlier and the respective branches of the sons of Propositus - Abalurapppa were enjoying and managing the properties that had fallen to their respective branches.
26. Further, both the trial court and the lower appellate court have committed another serious error in law in disallowing the exhibiting of the 'palu patti' which the defendants wanted to mark as a document on their behalf to substantiate their case that there was a division in the family and the family properties had been shared amongst the three branches of the propositus - Abalurappa i.e., amongst the branches of Mallashettappa - Basappa, Prabhappa - Gurupadappa, Veerabhadrappa - Shivappa. When it is the case of the defendants that there was a division before the year 1935 and what was sought to be executed was a property list indicating the manner of division of the properties, there was absolutely no reason as to why the document could not have been exhibited.
27. In this regard, while the trial court obviously did not mention anything of the document, the defendants having raised this as a ground in their appeal, the lower appellate court should have dealt with this aspect and not examining this question has resulted in keeping out a piece of material evidence which could have definitely thrown considerable light on the dispute between the parties. There was absolutely no impediment for marking this document under any provision of law, particularly as what was sought to be placed before the court was the original and therefore there was no impediment under the Evidence Act, 1972 to exhibit this as a document. The document having been described as 'palu patti' i.e., a record of the partition, that cannot be construed as a partition deed and therefore requirement of registration does not arise and also as it was not any transfer of inter se immovable property, particularly, as it was a division amongst the members of the family who all own the properties, there being no transfer of interest in immovable property, necessitating registration in terms of Section 17 of the Registration Act, 1908 and not being on any stamp paper also being not any impediment to admit the document as even if it was not stamped or insufficiently stamped it could have been at the best a case for duty and penalty and not for keeping out the document itself. Even in terms of the proviso to Section 49 of the Registration Act, 1908, assuming that the property was required to be registered either under the Registration Act, 1908 or under any of the provisions of the Transfer of Property Act, 1882, it could still be received in evidence to prove collateral transactions which were not required to be effected by a registered instrument and in this view of the matter also the courts below committed a serious error in not permitting the defendants to exhibit the 'palu patti' in support of their case.
28. The lower appellate court has committed yet another error in law in totally ignoring the effect of Exhibi LD 15 a document permitted to be allowed to be brought on record through an application under Order XLI Rule 27 of the Code of Civil Procedure filed before the lower appellate court and when once the additional evidence had been permitted to be brought on record, it was the duty of the lower appellate court to have examined the effect of this evidence on the outcome of the suit. Exhibit. D 15 being a registered sale deed of the year 1935 and in respect of suit items 4, 5, 12, 15 and 17 in 'A Schedule and 1, 2 and 3 of 'B' Schedule was a document of vital significance for the defendants in proving their case of earlier division in the family and ignoring such a piece of evidence has clearly vitiated the Judgment and decree of the lower appellate court. In fact, the appellants have filed further application under the very provision of Rule 27 of Order XLI of the Code of Civil Procedure to produce additional evidence which are said to be the mutation entry No. 443 dated 23.8.1935 to evidence that the sale deed had been acted upon and the properties had been enjoyed in that manner ever since.
29. Mr. Mogali, learned Counsel for the appellants is very correct in submitting that the Judgment and decree of the lower appellate court is clearly vitiated in not evincing awareness to this piece of important evidence on record. Exhibit.D15 is of considerable significance as it is a sale deed executed by the fifth son of the Propositus - Abalurappa, namely, Basateppa in favour of the second defendant Veerabhadrappa and in the year 1935 in respect of the suit items referred to above. I am of the view that the IA No. I of 2005 filed by the appellants for production of additional material which are only in the very line and further evidence to support the case of the defendants that there was division in the family earlier deserves to be allowed in this appeal also for the purpose of getting a clear picture as to the division or otherwise in the family and ends of justice necessitates allowing of such application.
LA. No. I of 2005 is allowed and the appellants - original defendants in the suit are permitted to bring additional evidence on record.'
30. I am of the view that the courts below have not properly appreciated the evidence on record; that the findings are not in consonance with the evidence on record and cannot be sustained. Not adverting to the material on record and disallowing the exhibiting of 'palu patti' is another serious error committed in law and therefore the Judgments and decrees passed by the courts below are clearly not sustainable.
31. As the matter has to be re-examined and particularly in the light of the additional material now sought to be placed through LA. No. I of 2005 placed before this court in the second appeal and also the material brought on record before the lower appellate court, namely, Exhibit. D 15,1 am of the view that the matter has to go back to the trial court for leading further evidence in terms of the applications allowed before the lower appellate court and before this court and I am also of the opinion that the matter has to go back to the trial court rather than to the lower appellate court as it is necessary to appreciate the entire evidence on record in a proper perspective and on the principle of preponderance of probabilities. The trial court has to bear in mind that the suit filed in the year 1982 was one claiming for partition of properties of a joint family whose propositus was removed four generations from the plaintiff and the plaintiff was not even a member of the joint family even in law and therefore any presumption in favour of the family being joint had weakened over a period of time and the evidence on record was required to be appreciated in this background. The conduct of the parties probabilizing a division as claimed could clinch an issue like this and not proof beyond reasonable doubt by placing the actual partition deed before the court, treating the matter as one where the degree of proof required to be proved is one of beyond reasonable doubt as in a criminal case.
32. The Judgment and decree dated. 18.6.1987 passed by the learned Munsiff & JMFC, Hirekerur in OS No. 89/1982 and the Judgment and decree dated.4.12.2001 passed by the learned Civil Judge [Sr. Dn.,] and Prl. JMFC, Ranebennur in RANo.27/1987 are set aside and the matter remanded to the trial court not only for allowing the defendants to lead additional evidence in the light of the applications having been allowed before the lower appellate court and this court but also to examine the need for marking the palu patti sought to be placed before the court by the defendants and examine the impact and effect of such evidence and to proceed to Judgment afresh in accordance with law and in the light of the observations made in the course of this Judgment.
33. Having regard to the long pendency of the case before the courts, it is desirable that the trial court disposes of the matter within a period of six months from the date of receipt of records from this court.
34. It is also made clear that the possession and enjoyment of the properties which are as of now in possession and enjoyment of the plaintiff even in terms of the admissions and as indicated in the records in the present appeal should not be interfered or in any way affected by the defendants during the pendency of the suit before the trial court. The defendants however are restrained from transacting further in any manner any of the suit schedule properties pending disposal of the suit before the trial court.
The appeal is allowed. Parties to bear their own costs.