Karnataka High Court
Ranoji Rao vs Srinivasa Rao on 24 September, 1992
Equivalent citations: I(1993)DMC129, ILR1992KAR3449, 1992(4)KARLJ486
JUDGMENT
K.A. Swami, Ag. C.J
1. This Second Appeal by the plaintiffs is referred to a Division Bench on the ground that it involves substantial question of law which requires to be decided by Division Bench. Hence this Appeal before us.
2. The plaintiffs have preferred this Appeal against the judgment and decree dated 16th September 1980 passed by the learned Civil Judge, Ramanagaram, in R.A.No. 26 of 1979 reversing the judgment and decree dated 31st August, 1979 passed in O.S.No. 170 of 1977 by the learned Munsiff, Ramanagaram. The suit was for partition and separate possession of the share of the plaintiffs. The relationship between the parties and the properties available for partition are not in dispute. The appellants 1 to 3 are the plaintiffs and the respondents 1 to 3 are the defendants in the suit. Therefore, in this Judgment, the appellants and the respondents will be referred to as plaintiffs and defendants respectively. Plaintiff 1 and 2 and defendants 1 and 3 are the brothers. Plaintiff-3 and defendant-2 are the widows of deceased Venkatarao Mane. The plaintiff 1 and 2 and defendant-3 are the sons of deceased Venkatarao Mane through the 2nd wife (plaintiff- 3); and defendant-1 is also the son of the deceased Venkatarao Mane through his first wife (2nd defendant).
3. There was a partition between deceased Venkatarao Mane and his sons on 24-12-1962 (Ext. D-14). In the partition, the suit schedule properties were allotted to the share of deceased Venkatarao Mane. He was in possession and enjoyment of the same. Deceased Venkatarao Mane executed a document on 18-9-1967, which is marked as Exhibit-D-1, dividing or settling the properties which had fallen to his share in the partition dated 24-12-1962 (Ext. D-14) among the plaintiffs and the defendants. Venkatarao Mane died in the year 1969. After his death, the plaintiffs filed a suit for partition and possession of their share in the properties of deceased Venkatarao Mane. The trial Court held that Ext.D-1 required registration; therefore it was invalid. Hence, it decreed the suit for partition. The lower appellate Court though noticed that the document Ex.D-1 was not registered document, it went on the fact that the division was effected under the document Ext.D-1 was accepted and acted upon by the parties and therefore not at all permissible to ignore the document and as such the plaintiffs were not entitled to claim for partition of the suit schedule properties, which were divided and acted upon by the parties under Exhibit D-1. He was also of the view that the division of the suit properties between the plaintiffs Nos. 1 and 2 and defendant No. 3 on the one hand and defendant No. 1 on the other was fair.
4. The Points that arise for consideration are:
(i) Whether the document, Exhibit D-1, could be construed to be a family arrangement or settlement, not requiring registration?
(ii) Whether the plaintiffs are estopped from claiming partition in view of Exhibit D-1?POINT NO. 1
5. The document Ext.D-1 is executed by late Venkatarao Mane. The plaintiffs and the defendants are also signatories to it. In addition to this, the panchayatdars have also signed. The document purports to be a deed of settlement of the properties of late Venkatarao Mane. In the first portion, the executant of the document states how he got the properties. He also further states that others, namely, the plaintiffs and the defendants have no right whatsoever in those properties. The document further states that in order to avoid any dispute between the plaintiffs and the defendants, the executant (late Venkatarao Mane) has executed the document on his own accord in the presence of the Panchayatdars, dividing and settling the properties on the plaintiffs and the defendants. Thereafter, the document Ext.D-1 proceeds to state the properties that are given to the share of Smt. Ranabayamma and Srinivasa Rao, defendants Nos. 2 and 1 respectively and then the properties allotted to the plaintiffs and defendant-3. A reading of the document Ext.D-1 leaves no doubt that it allots the properties to defendants Nos. 1 and 2 and the plaintiffs 1 to 3 and defendant 3 and creates a right in their favour under the said document. The document is not a record of the family arrangement that had been made preceding to it. Thus, it is not a document which records a past event of family arrangement or settlement. It is a document which settles the properties on the defendants 1 and 2 and plaintiffs 1 to 3 and defendant-3.
6. Shri M. Rangarao, learned Counsel appearing for defendants Nos. 1 and 2, tried to contend that the document (Ext.D-1) by itself does not create any right; therefore it is not required to be registered.
It is not possible to appreciate this contention. Admittedly, the properties covered by the document Ext.D-1 belonged to the late Venkatarao Mane, Until his death, neither defendants Nos. 1 and 2 nor the plaintiffs and defendant No. 3 were entitled to claim any right, title or interest in the properties. The first portion of the document afso states this aspect of the matter. Therefore, there was no dispute between the executant of the document and the plaintiffs and the defendants and there were no contenders claiming the properties. Undisputedly, the properties belonged to late Venkatarao Mane. It was open to him to deal with them in the manner he liked. He thought of settling the properties between the plaintiffs and the defendants; and therefore, he executed the document Ex.D-1 with a view to avoid any dispute between the plaintiffs and the defendants regarding his properties on his death. Thus, this is a case in which there was no question of any settlement of the dispute in which family arrangement could be arrived at.,
7. In KALE AND ORS. v. DEPUTY DIRECTOR OF CONSOLIDATION AND ORS., " under what circumstances a family arrangement would be arrived at and when and under what circumstances it requires to be registered has been dealt with in paras 9 and 10 of the Judgment. It has been clearly stated therein, that by virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their difference and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. It is also further stated that the object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family.
8. There is no doubt in this case and it is not the case of any of the parties to the suit that there was any dispute between them regarding the properties of late Venkatarao Mane. Therefore there was no question of settling the dispute among the members of the family to purchase peace. Secondly, according to us, the document Ex.D-1 is a Deed of Settlement of properties of fate Venkatarao Mane. However even if we consider it as family settlement or family arrangement, it has been reduced to writing and under the settlement, only the rights are created in the immoveable properties worth more than 100 Rupees in favour of the plaintiffs and the defendants; therefore it required to be registered as stated under proposition No. 4 in para-10 of the aforesaid Judgment in Kale's case. Therefore, looked from any point of view, we are of the view that the document is not a family arrangement, but it is a Deed of Settlement executed by late Venkatarao Mane settling his properties on the plaintiffs and the defendants. Even accepting the contention of Sri Rangarao that the deed recites that it intends to settle the future disputes that may arise among the members of the family; therefore it can be construed as a family arrangement or settlement, it required to be registered, because the document does not record the family arrangement or settlement which had taken place preceding the document, it is under the document itself the settlement of the immovable properties worth more than Rs. 100/- had been made. Therefore the document Ex.D-1 has no value as it has not been registered. Hence Point No. 1 is answered in the negative.
POINT NO. 29, A reading of the document makes it abundantly clear that there is a very unfair division of properties. We are surprised to notice how the learned appellate Judge could say that the arrangement made under the document Ex.D-1 is fair. It does not require much reasoning to demonstrate that the arrangement made under the document is not fair. The properties in question consist of lands and houses. The total extent of the land is 9A- 37G. In addition to this, there are two houses - one at Kunthur village known as Hullu Hittalu and another Kiremadi known as Hullu Hittalu. Defendants Nos. 1 and 2 have been given 4.00 acres of land with two houses; whereas, the plaintiffs Nos. 1 to 3 and defendant No. 3 have been given only 5A-37G with a loan to be paid by them. Four sons of late Venkatarao Mane were entitled to one share each and the two widows i.e., plaintiff No. 3 and defendant No. 2 together were entitled to one share. Thus, if 9A037G are divided by five, each sharer would be entitled to 1A-39G. In that way, the defendat-1 would have got 1A-39G and defendant-2 would have got 0-39G.Both put together, they would have got less than 3.00 Acres. Whereas, they have been given 4.00 acres plus two houses without any liability to discharge a loan. Whereas, plaintiffs Nos. 1 and 2 and defendant No. 3 together would have got 5A-37G in addition to it plaintiff No. 3 would have got O-39G. Thus, not only plaintiffs Nos. 1 to 3 and defendant 3 have been given land for less than the extent they would have been entitled to, they have also been made to bear the burden of loan. It is apparent that the learned appellate Judge has not read the document Ex.D-1 properly and has failed to notice the extent of land and houses. No reason has been given by him to arrive at such conclusion. Therefore, on a reading of the document Ext.D-1, we are satisfied that the Division effected is not fair. As such, it is not possible to hold that the plaintiffs are estopped from claiming partition and separate possession of their share in the suit properties ignoring Ext.D-1. We have already held that Ext.D-1 required to be registered. On the exclusion of Ex.D-1 from consideration it is not disputed that there was intestate succession to the estate of deceased Venkatrao Mane. Hence, Point No. 2 is answered in the negative.
10. The contention of Sri Rangarao, learned Counsel for the defendants Nos. 1 and 2 that the finding as to whether the division effected under the document Ext.D-1 is fair or not is a finding of fact; therefore it is not liable to be interfered with. It is not possible to accept this contention. Any finding of fact recorded without appreciating relevant evidence on record is liable to be interfered with even in Appeal. Here is a case where the learned appellate Judge, in one sentence has held that the division effected under the document Ex.D-1 is fair. We have already pointed out as to how the division effected is unfair. We have also pointed out that the learned appellate Judge has not read the document Ext.D-1 properly. Therefore the contention of Sri Rangarao is rejected. Accordingly, the Appeal is allowed. The judgment and decree of the first appellate Court are set aside and that of the trial Court are restored. In the facts and circumstances of the case, parties to bear their own costs through out.