Karnataka High Court
Sri Dinesh Sipani vs Smt Shantamma @ on 28 February, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR FIRST APPEAL NO.1289 OF 2012
Between:
Sri Dinesh Sipani
S/o Sri R.K. Sipani
Aged about 45 years
Residing at 868, 5th A Cross
7th E Main Road, 6th Block
Koramangala
Bangalore - 560 095
...Appellant
(by Shri A Madhusudana Rao, Advocate)
And:
1. Smt. Shantamma @
R Shanthamma
w/o late Sri M Ramakrishna
aged about 51 years
2. Sri R. Jagadish Kumar
S/o late M. Ramakrishna
Aged about 35 years
Respondents 1 and 2 are
Residing at No.96,
9th B Cross
Agrahara Dasarahalli
Bangalore - 560 079.
2
3. Smt. R. Tanuja
D/o late M Ramakrishna
W/o Sri Udaya Shankar
Aged about 34 years
Residing at No.186
10th Main, 11th Cross
Malleshwaram
Bangalore - 560 003
4. Sri R. Manjunath
S/o late Sri M Ramakrishna
Aged about 31 years
Residing at No.96, 9th B Cross
Agrahara Dasarahalli
Bangalore - 560 079
5. Sri Pillappa
S/o late Sri Munishamappa
Aged about 69 years
6. Smt. Subbamma
w/o Sri Pillappa
aged about 61 years
7. Sri Lokesh
s/o Sri Pillappa
aged about 36 years
8. Sri Nagaraj
s/o Sri Pillappa
aged about 31 years
9. Sri Girish
s/o Sri PIllappa
aged about 29 years
10. Sri Harish
s/o Sri Pillappa
3
aged about 26 years
11. Sri M. Chennappa @ Channappa
w/o late Sri Munishamappa
aged about 71 years
residing at Shikaripura
Shimoga 577 427
12. Sri M. Krishnappa @ Krishnappa
S/o late Sri Munishamappa
Residing at Nagarabavi
Mudalapalya, Kalyananagar
Bangaore - 560 072
...Respondents
(by Shri C. Shankar Reddy, Advocate)
This Regular First Appeal is filed under Section 96 of the
Code of Civil Procedure against the judgment dated 01st June,
2012 passed in OS No.236 of 2006 by Senior Civil Judge and
JMFC, Doddaballapur decreeing the suit for partition and
separate possession.
In this regular first appeal arguments being heard,
judgment reserved, coming on for pronouncement, this day, the
Court delivered the following:
JUDGMENT
This Regular First Appeal is directed against the judgment and decree dated 01st June, 2012 passed in OS No.236 of 2006 by Civil Judge (Senior Division) and JMFC, Doddaballapur.
2. For the sake of convenience, the parties are referred to their rank before the trial Court.
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3. The plaintiffs have filed a suit seeking partition and separate possession in respect of the suit schedule property. The case of the plaintiffs before the trial Court is that, the plaintiff No.1 is the wife of late M. Ramakrishna. The Plaintiffs No.2 to 4 are children of late M. Ramakrishna and plaintiff No.1. The said M. Ramakrishna died on 06th May, 1987 leaving behind the plaintiffs as legal heirs to succeed to the estate of joint family consisting of his father Munishamappa and Narayamma.
4. The Genealogical tree of the joint family of late Munishamappa is as under:
Genealogical tree MUNISHAMAPPA (DEAD) NARAYANAMMA (DEAD) Channappa Krishnappa Pillappa Ramakrishnappa (dead) Lokesh Nataraju Grish Harish Jagadish Kumar Tanuja Manjunath
5. Defendant No.1 is the son of late Munishamappa. Defendant No.2 is the wife of Defendant No.1; Defendants No.3 5 to 6 are children of Defendants No.1 and 2. Defendant No.7 is the purchaser of the suit items No.1 and 2 of the suit schedule property. Defendants No.8 and 9 are the children of late Munishamappa. The said late Munishamappa had four sons viz. M. Ramakrishna (the husband of the plaintiff No.1 and father of the plaintiffs No.2 to 4) defendant No.1 and defendant No.8 and defendant No.9. The Plaintiffs state that the said late Munishamappa's family was a Hindu Joint family and the family had owned lands and house property situated at Machagondanahalli. The Plaintiffs further aver that defendants No.8 and 9, who are the sons of late Munishamappa, had left the Joint family after the death of their father; and in a family arrangement, left immovable properties to their brothers, i.e. the defendant No.1 and late M. Ramakrishna. The defendant No.8 is settled at Shikaripura, Shimoga District and the defendant No.9 is settled at Shimoga and in view of the same, the defendant No.1 and late M. Ramakrishna continued to stay in the joint family consisting of the defendant No.1 being the eldest member of the said Hindu joint family sharing the proceeds from the joint family lands. It was further stated by plaintiffs that the 6 defendant No.1 had no independent income. However, he was looking after the management of the joint family properties as karta of the said joint family and the said late M. Ramakrishna also used to assist the first defendant in cultivating joint family lands till the said M. Ramakrishna secured a job as driver in Karnataka State Road Transport Corporation and pursuant to the same, the said M. Ramakrishna shifted to Bangalore. Even after shifting to Bangalore, the plaintiffs used to visit to their native place frequently and stay in the joint family house and collect the share proceeds from the joint family lands. After the death of M. Ramakrishna on 06th May, 1987, the plaintiffs stayed for a brief time at Machagondanahalli. The plaintiffs further stated that land bearing survey No.13/2 of Machagondanahalli stands in the joint names of late M. Ramakrishna and the defendant No.1. Plaintiffs further stated that the first defendant had always been assuring the plaintiffs that they would be given their half share in all the joint family properties as and when the properties are being divided, as late M. Ramakrishna was entitled for half share in the said joint family properties. After some period, the plaintiffs came to know that the behaviour of defendant No.1 7 was not good and they suspected the ill-motive of the defendant No.1 that the defendant No.1 would deny legitimate share of the plaintiffs in respect of suit schedule property. When the things stood thus, the plaintiffs came to know that the defendants No.1 to 6 herein have sold the land bearing survey No.13/2 of Machagondanahalli through a registered sale deed dated 31st March, 2006 in favour of defendant No.7 (appellant herein) and when the same was questioned by the plaintiffs to the defendant No.1, he gave evasive reply and even thereafter he failed to take any steps with regard to allocation of share of plaintiffs, and as such, the plaintiffs issued a notice dated 26th July, 2006 to the defendants and pursuant to thereof, as the defendants No.1 to 7 having not complied with the demands made by the plaintiffs herein, they have raised objection with the revenue authorities for effecting transfer of mutation entries in favour of the defendant No.7 with regard to survey No.13/2 of Machagondanahalli. The plaintiffs further stated that the defendant No.7 is an influential and powerful person and in collusion with the defendants No.1 to 6 has purchased the item No.1 and 2 of schedule property. The plaintiffs further averred 8 that the defendants No.1 to 6 have executed sale deed on 31st March, 2006 in favour of the defendant No.7 for a consideration less than the market value of the property and in view of the same, the plaintiffs have filed OS No.236 of 2006 on the file of the Senior Civil Judge and JMFC, Doddaballapur and sought for one-fourth share in all the suit schedule property by metes and bounds between the plaintiffs and defendants No.1 to 6, inter alia, sought for mesne profits under Order XX Rule 12 of the Code of Civil Procedure.
6. On service of summons, the defendants No.2 to 6, 8 and 9 have been placed ex-parte. Defendant No.1 has entered appearance and filed written statement. Defendant No.7 has filed written statement before the trial Court. Defendant No.1 states that the suit schedule property are self-acquired property belonging to him and admittedly he is in possession of the same. The property claimed in the suit are not ancestral or joint family property as stated by the plaintiffs and the suit schedule property bearing survey No.13/1A measuring 34 gunta; land bearing survey No.13/1B measuring 35 gunta; and land bearing 9 survey No.13/4A measuring 26 gunta are self-earned properties of defendant No.1 and therefore, the plaintiffs have no legitimate right over the suit schedule property in question and the suit is filed only to coerce and harass the defendant No.1. It was further averred in the written statement that during the lifetime of defendant No.1, his mother Smt. Narayanamma had acquired land property bearing survey No.13/2 measuring 1 acre 34 guntas and house property with chavani bearing SL No.7 from her parents; and during lifetime of Munishamappa and Narayanamma, defendants No.8 and 9 had got job in Karnataka Electricity Board at Shivamogga District and accordingly they have left their house from Machagondanahalli and stayed at Shivamogga. The first defendant further stated that the deceased M. Ramakrishna (younger brother of the defendant No.1) had stayed with the defendant No.1 up to seventh standard at native place and thereafter he had left native place, went to Shimoga for further studies and stayed with defendant No.9 for sometime, and subsequently, he never returned to the native place. The defendant No.1 further states that after the death of Narayanamma-mother, he has invested her earned 10 money by selling moveable properties, had purchased property bearing survey No.13/2 measuring 1 acre 34 guntas from Mahalingappa S/o Kalappa by a registered sale deed dated 15th December, 1969 and the during the said period, M Ramakrishna was minor, aged between 14 to 15, and as such, the name of M Ramakrishna was incorporated in the sale deed dated 15th December, 1969 at the instance of his maternal uncle. The defendant No.1 further states that deceased M. Ramakrishna had never stayed or cultivated the schedule lands at Machagondanahalli village and had settled at Bangalore as he got employment in KSRTC, and hence the plaintiffs have no right or title in respect of the suit schedule property; he further states that due to family necessities, he along with defendants No.1 to 6, have sold property bearing survey No.13/2 measuring 1 acre 34 gunta; property bearing survey No.13/1A measuring 34 gunta; property bearing survey No.13/1B measuring 35 gunta in favour of the defendant No.7 (appellant herein) under the registered sale deed dated 31st March, 2006, and therefore, the plaintiffs have filed a frivolous suit, and hence sought for dismissal of the suit.
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7. Defendant No.7 has filed written statement contending that he is a bona fide purchaser of item No.1 and 2 of the suit schedule property from defendant No.1 to 6 and paid the entire sale consideration to the vendors (defendants No.1 to 6) and the suit has been filed by the plaintiffs only to harass him. He has spent nearly Rs.60,000-70,000/- for development of the land to make it fit for proper cultivation and he is in possession of items No.1 and 2 and in view of the same, he has sought for dismissal of the suit.
8. After hearing the parties, the trial court has framed the following issues and additional issues:
1. Whether the plaintiffs prove that the suit schedule properties are the joint family properties and they are in joint possession of the suit schedule property?
2. Whether the defendants denied the share of the plaintiffs?
3. Whether plaintiffs are entitled for partition and mesne profits as prayed?12
4. Whether the suit of the plaintiffs is not maintainable for non-joinder of necessary parties?
5. Whether defendants prove that plaintiffs never objected for change of khata?
6. Whether the defendant No.7 proves that he is bonafide purchaser of the suit schedule property for consideration?
7. what order or decree?
Additional issue framed on 19.08.2011:
Whether defendant No.7 proves that 1st plaintiff had relinquished her right along with other plaintiffs in the schedule properties?
Additional Issues framed on 22.11.2011:
1. Whether defendant No.1 proves that Ramakrishna after completion of his education went to Bangalore and got appointed as KSRTC Driver and marked with plaintiff No.1 and resided in Bangalore City along with plaintiffs and never turned to village?
2. Whether defendant No.1 proves that suit land Sy.No.13/2 measuring 2 acre 15 guntas is his self-acquired property?13
9. The Plaintiffs have examined Plaintiff No.2 as PW1 and got marked Exhibits P1 to P19. On the other hand, the defendant No.7 has examined himself as DW1 and got marked Exhibits D1 to D5. The trial Court, after considering the evidence on record and upon hearing the parties to the suit, by judgment and decree dated 01st June, 2012 has decreed the suit holding that the plaintiffs are entitled for one-fourth share in respect of the suit schedule property. Being aggrieved by the said judgment and decree the appellant-defendant No.7 has filed the present appeal before this Court.
10. I have heard Shri A Madhusudhana Rao, the learned counsel appearing for the appellant-defendant No.7 and Shri C. Shankar Reddy for respondents No.1 to 4. Shri A Madhusudhana Rao submitted that the plaintiffs and the defendants No.8 and 9 have left the family under a family settlement and as such, there is a severance of status of family long back and in view of the same, the finding recorded by the trial Court that the suit schedule property are the joint family property is contrary to the records and therefore, the judgment 14 and decree passed by the trial Court requires to be set aside by this Court. In order to substantiate his arguments, the learned Counsel submits that the plaintiffs have not placed any material before the Court below to the effect that the suit schedule properties are purchased from the joint family funds and also the existence of sufficient joint family nucleus was also not established by the plaintiffs and in view of the same, there is no presumption relating to the jointness of the property, as held by the trial Court, in the absence of any material to prove that the properties are joint family properties and in this regard, he submits that the trial Court has seriously erred in law in decreeing the suit in respect of item No.1 of the suit schedule property. The learned counsel for the appellant has vehemently contended that the defendant No.7 and defendant No.1 have jointly made a statement that in respect of land bearing survey No.13/2 measuring 1.34 guntas, the plaintiff No.1 has executed the release deed in favour of defendant No.1 as per Exhibit D1 and in this regard, the defendant No.7 has paid the deficit stamp duty along with penalty before the trial Court. In the background of these material on record before the Court, the 15 trial Court ought to have considered the fact that the plaintiffs have consented for severance of their status from the joint family with that of defendant No.1, but the trial Court has not appreciated the aforesaid facts on record in the right perspective. He further reiterates that the trial Court, though has accepted relinquish deed-Exhibit D1 as a document to be considered for the severance out of the joint family, however refused to accept that fact and decreed the suit on the ground that the release deed is not a registered document. He further submitted that the defendant No.7 has purchased item No.1 of suit schedule property as a bonafide purchaser, sincerely believing that in view of the document executed by plaintiffs in favour of defendant No.1 as per Exhibit D1, the plaintiffs would not make any claim in respect of the property in question, inter alia defendants No.8 and 9 have also separated from the joint family long back and are residing at Shikaripura and Shivamogga and the very basis of their status has not been properly considered by the trial Court and therefore, the trial Court with closed mind has decreed the suit, which requires to be set aside by this Court. The learned counsel further submits that both the 16 defendant No.7 and defendant No.1 have taken a clear stand before the trial Court that the plaintiff No.1 had executed release deed in favour of defendant No.1 in respect of the land in survey No.13/2 measuring 1 acre 34 guntas and the best and reliable person who would have spoken about execution or otherwise of defendant No.1, were defendant No.1 and plaintiff No.1 alone. The defendant No.1 being the eldest member of the family of defendants No.1 to 4 would have been the best person who could have spoken about the case put-forth by the plaintiffs. In the suit, admittedly, the plaintiff No.1 has not stepped into witness box and made submissions with regard to the execution of Exhibit D1 and as such, non-examination of plaintiff No.1 is fatal to the case of the plaintiffs No.1 to 4 and the trial court ought to have drawn adverse inference against the plaintiffs as required under illustration (g) to Section 114 of Indian Evidence Act, 1872 to the effect that, had the plaintiff No.1 been examined as witness, she would have stated about the execution of Exhibit D1 and in the absence of the said examination of the plaintiff No.1, the same would have gone against the plaintiffs herein and there is absolutely no reason forthcoming from the 17 evidence of PW1-son of the plaintiff No.1, as to the absence of examination of plaintiff No.1 and therefore, the trial Court has misconstrued the factual aspects of the case and hence the judgment and decree passed by the trial Court requires to be interfered with by this Court. The learned counsel further submits that admittedly, land in survey No.13(1A) measuring 34 gunta and the land in survey No.13(1B) measuring 5 guntas of land are not the lands which were the subject matter of the sale deed which belonged to late M. Ramakrishna. The defendant No.1, in the written statement, has categorically stated that the said item of the property is a self-acquired property belonging to him and he has purchased the land bearing survey No.12/2 measuring 2 acre 15 guntas of Machagondanahalli village, Doddaballapura Taluk in a registered sale deed dated 02nd March, 2000 from one Narayanappa, and therefore, in this regard pursuant to the proceedings in RRT case, wherein after ascertaining that the lands are in possession of defendant No.1 having been ascertained, survey No.13/1A and 13/1B came to be mutated in favour of defendant No.1. In this background, it is clearly established fact that these lands were the exclusive 18 property of defendant No.1 and the plaintiffs have not made available any material to indicate that these lands were joint family properties of Late M. Ramakrishna and Defendant No.1 and in that view of the matter the trial Court could not have presumed that these lands are also the joint family properties and the trial Court ought not to have ordered any partition in respect of these lands and in view of the same, the judgment and decree passed by the trial Court requires to be set aside. The learned counsel further submits that the defendants No.8 and 9 have not appeared before the Court and not put-forth any material in order to claim that they are entitled for the share in the property in question. The defendant No.1, though has filed the written statement, has not entered into witness box. In that view of the matter, the trial Court ought not to have granted any share to the defendants No.8 and 9, and thereby, in view of the case put-forth by the plaintiffs, the defendants No.8 and 9 have come up with their rights in respect of joint family property as per the family settlement entered into between themselves the said case put-forth by the plaintiffs was not disputed by defendants No.8 and 9 by contesting the case before the trial 19 Court. Hence, the learned counsel for the appellant submits that the trial Court, with surmises and conjectures presumed the things which are fatal to the case on hand and has decreed the suit without considering the supporting material aspects relating to the self-acquired property and joint family, and the same requires to be set aside by this Court. Having made the above submissions, the learned counsel for the appellant placed reliance on the following judgments:
1) MAN KAUR(DEAD) BY LRS v. HARTAR SINGH SANGHA - (2010)10 SCC 512
2) VIDHYADHAR v MANKIKRAO & ANOTHER - AIR 1999 SC 1441
3) SITA RAM BHAMA v. RAMVATAR BHAMA -
(2018)15 SCC 130
4) THULASIDHARA AND ANOTHER v. NARAYANAPPA AND OTHERS - (2019)6 SCC 409
11. Per contra, Shri Shankar Reddy, the learned counsel appearing for the respondent/plaintiffs submits that the specific case of the plaintiffs is that the partition of the suit schedule property had never taken place by metes and bounds and 20 plaintiffs are entitled for their one-fourth share in the suit schedule property. He further submits that the contentions raised by the learned counsel for the Defendant No.7-Appellant herein that the plaintiff No.1 has executed unregistered relinquish deed dated 08th January 1989 (Exhibit D1) is not correct. He submits that the defendant No.1 has contended that the suit schedule property is an exclusive and self-acquired property, however, the defendant No.1 did not choose to appear before the court in order to tender his evidence and consequently, the contentions raised by the defendant No.1 has remained unsubstantiated. With regard to the alleged relinquish deed, the learned counsel for the plaintiffs further submits that the defendant No.7 has neither examined any independent witness nor has proved the said document in the manner known to law and as such Exhibit D1 being unregistered document, cannot be looked into. Even assuming that such a document is executed, as stated by the defendant No.7, the said document has not been acted upon and in that view of the matter, the learned counsel for the plaintiff stated to justify the finding recorded by the trial Court with regard to issue No.1 framed by 21 the trial Court. Yet another submission made by the learned counsel for the plaintiffs is that the mutation entry as per Exhibit D11 discloses that the name of the defendant No.1 as entered in the revenue records based on the alleged oral statement given by the plaintiff No.1 stating that she has no objections for transfer of records in the name of the defendant No.1 since she is issueless and the said document made by the plaintiff No.1, even assuming to be true, however, plaintiff No.1 has got issues, who are plaintiffs No.2 to 4 in the suit, and hence, she could not have made such statement as urged by the learned counsel for defendant No.7. He further submitted that even otherwise the alleged statement said to have been made by the plaintiff No.1 is not produced before the Court nor any evidence has been led to prove the same and in view of the same, there is no reference to exhibit D1 or mutation entries, and as such, taking the umbrella of defence, to counter the argument of the learned counsel for the appellant-defendant No.7, the learned counsel for the plaintiffs-respondent No.1 to 4 stated that even in the sale deed there is no reference to the alleged relinquish deed-Exhibit D1. Thus, till the year 2006 the said relinquish deed has never seen 22 the light of the day and as such it is clear that the said document is suspicious in nature and has never been disclosed in any of the previous proceedings including in the sale deed and the revenue records, and as such the learned counsel for the plaintiffs submits that the defendant No.7 had made an application before the trial Court for referring the document to an handwriting expert, by filing IA.26 under Order XXIV Rule 10A of the Code of Civil Procedure and the said application came to be dismissed by the trial Court on 29th February, 2002 and being aggrieved by the same, the defendant No.7 did not make any effort to challenge the same before this Court and in view of the same, the learned counsel for the respondent No.1 submits that the trial Court having the benefit of entire records, has passed the decree, which is just and proper and does not call for any interference by this Court. In order to substantiate the contentions with regard to the Exhibit D1, and to counter the submissions made by the learned counsel for the appellant that the plaintiff No.1 has deliberately absent from entering into witness box, the learned counsel for the Respondents No.1 to 4 submits that defendant No.7 ought to have secured the presence 23 of the defendant No.1 or the plaintiff No.1 by invoking Order XLI Rule 21 of the Code of Civil Procedure to tender their evidence in support of Exhibit D1 and since such an effort has not been made by defendant No.7 or defendant No.1, and as such, the contentions raised by the learned counsel for the appellant is without any basis and the trial Court having considered the entire documents on record and on appreciating the evidence, has decreed the suit with cogent reasons and therefore, the same do not call for any interference by this Court.
12. To buttress his submissions, the learned counsel for the respondent No.1 places reliance on the decision of Hon'ble Supreme Court in the case of PRATAPRAI N KOTHARI v. JOHN BRAGANZA reported in (1999)4 SCC 403; the judgment of the High Court of Orissa in the case of BRAJA MOHAN PATRA v. ANANTA CHARAN PATRA AND OTHERS reported in AIR 2003 ORISSA 209; and a Division Bench Judgment of this Court in the case of SRI RAMACHANDRA NARAYAN TALAWAR v. KUMAR SOUKHARYA AND OTHERS reported in 2017(4) KCCR 3615 (DB). 24
13. Having heard the learned counsel for the parties at length and on re-appreciating the evidence on record, the points that arise for consideration before this Court are:
1. Whether the trial Court is justified in ignoring Exhibit D1; and
2. Whether the trial Court is justified in decreeing the suit?
14. The undisputed factual aspect of the case is that the plaintiffs and the defendants No.1 to 6 & 8 and 9 are the members of the joint family of late Munishamappa and late Narayanamma. The principal contention of the learned counsel for the plaintiffs is that the suit schedule property are the joint family property of the plaintiffs and the defendants No.1 to 6 & 8 and 9. The defendants No.8 and 9 have left the joint family after the death of Munishamappa in a family arrangement and as such they have no share in the suit schedule property and in view of the same, the remaining brothers viz. defendant No.1 and late Ramakrishna (husband of the plaintiff No.1 and father of plaintiffs 2 to 4) are entitled to half share each in the suit 25 schedule property. In the light of the aforesaid pleadings, the contentions of the learned counsel is that the plaintiffs and Defendant No.1 have constituted joint family separately from that of the defendants No.8 and 9, as they had left the joint family on securing employment at Shivamogga, and as such, the defendant No.1 and late Ramakrishna continued to live in the ancestral house (suit item No.3). At the relevant point of time, late Ramakrishna and the defendant No.1 herein have contributed for purpose of land bearing survey No.13/2 measuring 1 acre 34 guntas jointly under a registered sale deed dated 17th December, 1965 Exhibit P10. Based on the sale deed, the revenue authorities have changed the mutation in favour of both Ramakrishna and the first Defendant as per Exhibit P20 and subsequently as Ramakrishna secured job as a Driver in Karnataka State Road Transport Corporation and pursuant to the same, the defendant No.1 was managing the joint family properties and out of the income of the said joint family, several properties have been purchased by the defendant No.1 under registered sale deed dated 02nd March, 2000 (Exhibit D3) and since the joint family came to be continued even after the death 26 of Ramakrishna, the plaintiffs are entitled for one-fourth share in the suit schedule property.
15. I have carefully gone through the impugned judgment and decree passed by the trial Court and having perused the evidence and on re-appreciating the same, based on the submissions made by the learned counsel for the parties, admittedly, the main contention of the defendant No.7 is that the plaintiff No.1 alone is the competent person to say about the execution of Exhibit D1. In fact, the said document was marked during the course of cross-examination of PW1-the son of plaintiff No.1. The plaintiff No.1 has not examined herself to dispute the execution of Exhibit D1 and has not subjected herself to cross-examination at the hands of Defendant No.7. It is the categorical admission of PW1 in his cross-examination that it is plaintiff No.1 who has the knowledge of the affairs of the family and the case pleaded in the plaint relating to existence of joint family and the existence of joint family properties. Since the plaintiff No.1 has not stepped into witness box and she being the competent person to depose about the execution of Exhibit D1, 27 this court may have to draw adverse inference against the plaintiffs in view of illustration (g) to Section 114 of Indian Evidence Act, 1870. In the case of VIDHYADHAR (supra) the Hon'ble Supreme Court at paragraph 16 of the judgment has observed thus:
"Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors. , drew a presumption under Section 114 of the 28 Evidence Act against a party who did not enter into the witness box."
16. The said aspect of law is further reiterated by the Hon'ble Supreme Court in the case of MAN KAUR (supra) wherein the Hon'ble Supreme Court has observed as follows:
"11. To succeed in a suit for specific performance, the plaintiff has to prove: (a) that a valid agreement of sale was entered by the defendant in his favour and the terms thereof; (b) that the defendant committed breach of the contract; and (c) that he was always ready and willing to perform his part of the obligations in terms of the contract. If a plaintiff has to prove that he was always ready and willing to perform his part of the contract, that is, to perform his obligations in terms of the contract, necessarily he should step into the witness box and give evidence that he has all along been ready and willing to perform his part of the contract and subject himself to cross examination on that issue"
17. Yet another argument urged by the learned counsel for the appellant is that the recitals in Exhibit D1 and signature of plaintiff No.1 to exhibit D1 was not rightly considered by the trial Court despite the fact that defendant No.1 himself who is a party to Exhibit D1, has stated that plaintiff No.1 has 29 relinquished the rights of joint family and has totally severed from the joint family status and same has to be accepted by this Court. In this regard, it is necessary to refer to the observation made by the Hon'ble Supreme Court in the case of SITA RAM BHAMA (supra) at paragraphs 10 and 14 of the judgment, which read as hereunder:
"10. ... 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 of the Registration Act.
11, 12 and 13 xxx xxx xxx
14. After holding the said documents as inadmissible ,this court further proceeded to consider the question to whether the documents B21 and B22 can be used for any collateral purpose. In the above context the Court accepted the submission of the appellant that the documents can be looked into for collateral purpose provided appellant/defendant to pay the stamp duty together with penalty and get the document impounded. In paragraphs 16 and 17 following has been laid down:30
"16. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The Larger Bench of the Andhra Pradesh High Court in Chinnappareddigari Peda Mutyala Reddy v. Chinnappareddigari Venkata Reddy (AIR 1969 AP 242) has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document cam 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. An undisputed instrument is not admissible in evidence even for collateral purpose until the same is impounded. Hence, if the appellant-defendant want to mark these documents for collateral purpose it is open for them to pay the stamp duty with penalty and get the document impounded and the trial court is at liberty to mark Exts. B21 and B22 for collateral purpose subject to proof and relevance".
18. In order to consider the contentions raised by the parties with regard to accepting the unregistered release deed Exhibit D1, the main question revolves around the fact is 31 whether examination of that document to arrive at a conclusion could be used in evidence for collateral purpose? Admittedly, Exhibit D1 is an unregistered document which requires compulsory registration under Section 17 read with Section 49 of the Registration Act. The Hon'ble Supreme Court in the case of SHIBANI BASU (supra) has taken note of the fact that if a document is required to be considered for evidence for a collateral purpose, the Court has to examine such documents that the effect of unregistered document could be used in evidence for adjudication of the suit. In other words, the Hon'ble Supreme Court has observed that even non-registration of a particular document does not debar the use of such document which compulsorily requires registration for collateral purpose. That aspect has to be considered to arrive at a conclusion that Exhibit D1 may be considered for deciding the suit on merits to prove the jointess of the family properties.
19. The learned counsel for the appellant submits that even though Exhibit D1 is not a registered document at the inception, and thereafter, it came to be registered on payment of 32 deficit stamp duty and penalty, he states that Exhibit D1 could be used as corroborative evidence i.e. explaining arrangement between defendant No.1 and plaintiff No.1. In order to fortify his contention, the learned counsel for the appellant relied upon the law declared by the Hon'ble Supreme Court in the case of THULASIDHARA AND OTHERS (supra) wherein at paragraphs 9.4 and 9.5 of the judgment has held that even without registration a written document of family settlement/family arrangement can be used as corroborative evidence as explaining arrangement made therein and the conduct of the parties is to be looked into. In the instant case, admittedly, the plaintiff No.1 did not adduce any evidence. She is the only competent witness apart from defendant No.1 to say about the execution of Exhibit D1. Undisputedly, neither the defendant No.1 nor the plaintiff No.1 have entered the witness box and deposed about execution or otherwise of Exhibit D1. In that view of the matter, the contentions raised by the appellant to take adverse inference against the conduct of the parties is well-founded and if at all the plaintiff No.1 or the defendant No.1 had entered witness box and had stated their case on oath, so also, they had not offered 33 themselves to be cross-examined by defendant No.7, a presumption would arise and establishes the fact that the case set up by them is not correct. In fact, the learned counsel for the appellant would categorically points out that it is not his but a collusive suit made by plaintiff No.1 and defendant No.1 to defeat the legitimate right of defendant No.7, and as such, the contentions raised by the defendant No.7 is required to be considered based on the facts and circumstances of the case. It is also equally considerable point that defendants No.8 and 9 were placed ex-parte and the perusal of pleadings at paragraph No.3 of the plaint would categorically invite the attention of this Court to the effect that there is a family arrangement between and among the joint family of late Munishamappa and his children in this regard, and also the fact that late Ramakrishna, who at the time of partition, was aged less than eight.
20. Adverting to justify the decree passed by the trial Court, the learned counsel for respondent No.1 placing reliance on the law declared by this Court in the case of T KRISHNA MURTHY (supra) invited the attention of this Court to the 34 proposition of law that even in the absence of pleading or contention by the parties, any amount of evidence can be considered to fill up the lacunae in the pleadings. In this regard, the learned counsel for the respondents No.1 to 4 submits that in the absence of pleadings, the evidence, if any, produced by the parties, cannot be considered. He further contends that no party should be permitted to travel beyond the pleadings and that all necessary and material facts should be pleaded by the party in support of the case set up by him and in this regard, reliance is placed on the judgment of this court in the case of SMT. SAKAMMA AND OTHERS v. SRI RANGAIAH SINCE DECEASED BY HIS LRS AND OTHERS reported in ILR 1998 KAR.
672. The said judgment is not applicable to the facts and circumstances of the case on hand, as the object and purpose of the pleadings is to enable to the affected party to have a fair trial. In the instant case, neither the plaintiff No.1 nor defendant No.1 have entered into witness box to prove the existence of Exhibit D1. It is imperative on them and their evidence is essentially a material fact. Going away from proving Exhibit D1 has resulted in decreeing the suit by the trial Court, which in my 35 opinion, is not correct and in view of the said aspect of the matter the finding recorded by the trial Court with regard to issue No.1 and Additional issue as to whether defendant No.7 prove that 1st plaintiff had relinquished or released her right along with other plaintiffs in the schedule properties, is not correct and it requires to be re-appreciated and finding to be recorded.
21. While interpreting Section 49 of the Registration Act, the Hon'ble Supreme Court in the case of S. KALADEVI v. V.R. SOMASUNDARAM AND OTHERS reported in (2010)5 SCC 401 in the course of judgment at paragraphs 12 and 13 has held as follows:
"12. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any 36 collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs.100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act.
13. Recently in the case of K.B. Saha and Sons Private Limited v. Development Consultant Limited, this Court noticed the following statement of Mulla in his Indian Registration Act, 7th Edition, at page 189:-
"......The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner's Court at Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it......"
This Court then culled out the following principles:- 37
"1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance."
22. The learned counsel for respondents No.1 to 4 has relied upon the Division Bench judgment of this Court in the case of MALAKAPPA v. ANNAPURNA AND OTHTERS reported in ILR 2010 KAR 2748 for the proposition that an un-registered relinquishment deed cannot be relied upon to grant favour to the appellant. As a thumb rule, burden of proof lies on the party 38 who alleges the fact. In the instant case, the plaintiff No.1 and the Defendant No.1 are the signatories to the release deed Exhibit D1, however, neither the plaintiff No.1 nor the defendant No.1 have entered into witness box and deposed about the acceptance or otherwise of joint family property and this aspect of the matter was not properly appreciated by the trial Court.
23. Yet another ground urged by the learned counsel for respondent No.1 is that there is no pleading in the appeal memo with regard to the dismissal of application IA.26 filed by the defendant No.7 for referring the document to handwriting expert under Order XXVI Rule 10A of the Code of Civil Procedure and the said order of dismissal has not been further challenged before the appellate court and in that view of the matter the learned counsel has placed reliance on the judgment of the Hon'ble Supreme Court in the case of CHAYA AND OTHERS v. BAPUSAHEB AND OTHERS reported in 1994(2) SCC 41 and submitted that the power of the Appellate court under Order XLI Rule 33 are very wide and the Appellate Court shall have power to pass any decree and make any order which ought to have 39 been passed or made. A perusal of the language employed in Order XLI Rule 2 of the Code of Civil Procedure makes it clear that the appellate court, while deciding the appeal, could not have to be confined only to the grounds mentioned in the appeal. In the light of the judgment passed by the Hon'ble Supreme Court in the case of CHAYA AND OTHERS (supra), in the ends of justice and to arrive at a conclusion with regard to resolving the lis between the parties, the first appellate court is empowered to accept the oral submission of the parties though there is no pleadings in the appeal memo and in this regard the contention raised by the learned counsel for respondent No.1 cannot be accepted.
24. It is apt to rely upon the law declared by the Hon'ble Supreme Court in the case of YELLAPU UMA MAHESWARI AND ANOTHER v. BUDDHA JAGADHEESHWARARAO AND OTHERS reported in (2015)16 SCC 787 wherein it is held that nomenclature given to the document is not a decisive factor, but the nature of substance of all the transaction has been determined with reference to the terms of the documents. But 40 admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. In the instant case, release deed Exhibit D1 makes it very clear as to relinquishment of right in respect of immovable property, though the document, compulsorily, is a registrable document and that the defendant No.7 has confronted the said document to PW1. In the suit, perusal of the entire plaint averments would not indicate or disclose about the relinquishment or release deed, however, at paragraph 18 of the written statement of defendant No.1, it refers to relinquishment deed Exhibit D1. Though defendant No.1 has not been examined as witness in the proceedings, however the said pleading made in the written statement would clearly indicate the fact that the suit schedule property are the self-acquired property of defendant No.1 and not the joint family property. Having considered the entire material produced by the parties at the time of evidence, the principal issue to be answered is that whether relinquish deed Exhibit D1 which is an unregistered document, can be relied upon for collateral purpose. On going 41 through the recitals of Exhibit D1, it would clearly evidence the fact of past transaction of partition that has taken place in the family of Munishamappa wherein all the four sons of the joint family of Munishamappa have divided the joint family property and as such, the defendants No.8 and 9 have left the village pursuant to the same, and therefore, considering Exhibit D1 for collateral purpose pertaining to relinquishment of shares between the plaintiffs and defendants, would clearly prove the factum of partition or family arrangement between the parties prior to execution of release deed Exhibit D1, and therefore, under the circumstance of the given fact and in this background Exhibit D1 shall be considered as a collateral purpose to prove the severance of jointness and that partition took place between the joint family of Munishamappa, and therefore, the contentions raised by the learned counsel for the Respondents No.1 to 4 is liable to be rejected and accordingly rejected.
25. Suffice to say that the Hon'ble Supreme Court in the case of SHIBANI VASU v. SANDIP RAY reported in AIR 2011 SC 509 has held that non-registration of a rent note did not debar 42 the use of document that was to be compulsorily registrable as collateral purpose, and having applied the said principle to the case on hand, I am of the opinion that the trial Court has misconstrued the admissibility of Exhibit D1 for collateral purpose and on re-evaluation of the entire material on record with the aid of the law declared by the Hon'ble Supreme Court as stated above, I am of the considered opinion that the trial Court was misguided in rejecting the Exhibit D1 as collateral purpose, and in that view of the matter also, the judgment and decree passed by the trial Court deserves to be set aside by this Court. Further, the question relating to admissibility of unregistered document for collateral fact/collateral purpose has been dealt by the Hon'ble Supreme Court in the case of K.B.SAHA AND SONS PRIVATE LIMITED v. DEVELOPMENT CONSULTANT LIMITED reported in (2008) 8 SCC 564. At paragraph 34 of the judgment, it is held as under:
"From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that :-43
1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
26. Section 49 of the Registration Act provides that a document purporting to be a relinquish deed and requires to be registered could not be admissible in evidence if the same is not registered. Proviso to this Section, however, as noted above, 44 provide that an unregistered document in question may be looked into in evidence as collateral facts. The impugned judgment and decree passed by the trial Court is erroneous in nature having not followed the acceptance of an unregistered relinquishment deed Exhibit D1, for collateral purpose to determine the earlier family settlement, which had already determined the issue pertaining to partition among the joint family properties of late Munishamappa.
27. On careful evaluation of entire material on record and having re-appreciated the entire documents and on considering the law declared by this Court and the Hon'ble Supreme Court with regard to considering a document as collateral one and to effectuate proper adjudication of the case, I am of the opinion that the contents of Exhibit D1 cannot be ignored while adjudicating the present suit. Apart from that, since the defendant No.1 and plaintiff No.1 have not stepped into witness box, and they are the competent persons to say about the alleged release deed Exhibit D1, in that view of the matter, adverse inference may have to be drawn against the plaintiffs. 45 As also on perusal of cross-examination of plaintiff No.1, one can infer that the plaintiff No.1 has deliberately kept away from the proceedings, and therefore, the finding recorded by the trial Court with regard to issue No.2 is without any merit and hence requires to be re-appreciated, as stated supra, by following the law declared by the Hon'ble Supreme Court with regard to acceptance of the document, i.e. Exhibit D1, for collateral purpose to arrive at the conclusion that the sale deed dated 31st March, 2006 executed by defendants No.1 to 6 in favour of defendant No.7 is valid and legal inter alia same is binding on the plaintiffs also.
28. While appreciating the evidence on record and the reasons assigned by the trial Court with regard to the issue framed above, this Court is conscious about the law declared by the Hon'ble Supreme Court in the case of SANTOSH HAZARI v. PURUSHOTTAM TIWARI (DECEASED) BY LRs reported in (2001)3 SCC 179; and in the case of JAMILA BEGUM (DEAD) THROUGH LEGAL REPRESENTATIVES v. SHAMI MOHD. (DEAD) THROUGH LRs AND ANOTHER reported in (2019)2 SCC 727 46 wherein it is observed by the Hon'ble Supreme Court that the Court of First Appeal has jurisdiction to reverse or affirm the findings of the trial Court, and if the First Appellate Court takes a different view, the judgment of the First Appellate Court must show the conscious application of mind and record its findings based on the evidence adduced by the parties and judgment must record the reasons as to why the First Appellate Court differs from the judgment of the trial Court. In the case on hand, the trial Court has not properly appreciated the evidence on record and the points framed for determination; and the evidence adduced by the parties has been misconstrued with that of the pleadings in the suit. For these reasons also the judgment and decree passed by the trial Court requires to be set aside. In view of the discussions made above, I am of the opinion that the finding recorded by the trial Court with regard to issue No.1 to 3 is to be reversed on the ground that the plaintiffs have failed to prove that the suit schedule property are joint family properties of Munishamappa and thereby the plaintiffs are not entitled for partition and mesne profits as claimed in the suit. Further, the finding recorded by the trial Court with regard to 47 issue No.6 is set aside for the reasons stated hereinabove, that defendant No.7 has proved that he is bona fide purchaser of suit schedule property for consideration and also proved that the plaintiff No.1 had relinquished her right along with other plaintiffs in the schedule properties.
Hence, the following:
ORDER
1. Appeal is allowed.
2. Judgment and decree dated 01st June 2012 passed in OS No.236 of 2006 by the Senior Civil Judge and JMFC, Doddaballapur is set aside.
Sd/-
JUDGE Lnn