Karnataka High Court
Krishna S/O Bhimarao Deshpande vs Pralhad S/O Bhimarao Deshpande on 26 June, 2023
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NC: 2023:KHC-D:6278-DB
RFA No. 100129 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 26TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO. 100129 OF 2017 (PAR/INJ)
BETWEEN:
1. KRISHNA S/O. BHIMARAO DESHPANDE,
AGED ABOUT 77 YEARS, OCCU: PENSIONER,
R/O: MALAMADDI, DHARWAD-580007,
DHARWAD DISTRICT.
2. SRINIVAS S/O. BHIMARAO DESHPANDE,
AGED ABOUT 74 YEARS, OCCU: AGRICULTURE,
GIRIJA A R/O: MALAMADDI, DHARWAD-580007,
BYAHATTI DHARWAD DISTRICT.
Digitally signed by GIRIJA A
BYAHATTI
Location: HIGHCOURT OF
KARNATAKA-DHARWAD
BENCH
Date: 2023.07.05 13:13:08
...APPELLANTS
+0530
(BY SRI. V. P. KULKARNI, ADV. FOR,
SRI. GIRISH A. YADWAD, ADVOCATE).
AND:
1. PRALHAD S/O. BHIMARAO DESHPANDE,
SINCE DECEASED BY LRS.
1A. SMT. PALLAVI W/O. PRALHAD DESHPANDE,
AGED 69 YEARS, OCC: HOUSEHOLD WORK,
R/O: 6TH CROSS, MALAMADDI, DHARWAD,
DIST: DHARWAD-580007.
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NC: 2023:KHC-D:6278-DB
RFA No. 100129 of 2017
1B. SMT. AKSHATA W/O. VINAY UBANADAR,
AGED 35 YEARS, OCC: HOUSEHOLD WORK,
R/O: 6TH CROSS, MALAMADDI, DHARWAD,
DIST: DHARWAD-580007.
1C. VADIRAJ S/O. PRALHAD DESHPANDE,
AGED 33 YEARS, OCC: AGRICULTURE,
R/O: 6TH CROSS, MALAMADDI, DHARWAD,
DIST: DHARWAD-580007.
2. SMT. ANURADHA W/O. ASHWATH PATIL,
GRAND DAUGHTER OF BHIMARAO DESHPANDE,
AGED: MAJOR, OCC: HOUSEWIFE,
R/O: R-7, SAHYADRI GOLDEN CO-OPERATIVE
HOWING SOCIETY, PLOT NO. 9A,
PATPARGANJ, DELHI-110092
...RESPONDENTS
(BY SRI. NAGARAJ C. KOLLOORI, ADV. FOR R1 (A TO C),
SRI. RAMESH M. BILKI, ADV. FOR R2).
---
THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DTD:08.02.2017 PASSED IN
O.S.NO.461/2007 ON THE FILE OF THE I-ADDITIONAL SENIOR
CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, DHARWAD,
DISMISSING THE SUIT FILED FOR PARTITION AND
INJUNCTION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:6278-DB
RFA No. 100129 of 2017
JUDGMENT
This appeal is filed by the appellants challenging the judgment and preliminary decree dated 08.02.2017 passed in O.S.No.461/2017 by the I Addl. Senior Civil Judge and CJM, Dharwad.
2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. Appellants are the plaintiffs and respondents are the defendants.
3. The plaintiffs filed a suit for partition and separate possession. It is the case of the plaintiffs that, propositus Narayanarao Deshpande died in the year 1938 leaving behind his only son Bhimarao Deshpande. Bhimrao Deshpande married Lakshmibai and out of the wedlock, he had begotten four sons and a daughter, namely, Narendra (died unmarried), Krishna (plaintiff No.1), Srinivas (plaintiff No.2), Pralhad (defendant) and Sudha (mother of plaintiff No.3). The propositus Bhimarao -4- NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 Deshpande died in the year 1985. His wife Lakshmibai died in the year 1975. The elder son Narendra died intestate in the year 1990. The mother of plaintiff No.3 died in the year 1970. The plaintiffs' family and defendant are originally from Amminabhavi village in Dharwad Taluka. The family of plaintiffs had about 400 acres of land in Amminabhavi village and surrounding villages of Dharwad Taluk and had a very big agricultural establishment. Bhimarao Deshpande was looking after the agricultural establishment and managing the affairs of the family at Amminabhavi village. However, he was residing at Malamaddi in Dharwad along with his family. Bhimarao Deshpande after coming to know that Bombay Karnataka is proposing to bring the Urban Land Ceiling Act, effected partition on 31.03.1956, amongst the joint family members in respect of agricultural lands. The lands were divided amongst Bhimarao, Narendra, Krishna, Srinivas, Pralhad and Lakshmibai and the plaintiffs were minors at the time of partition. In the partition, no share was allotted to the mother of plaintiff No.3 and defendant and -5- NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 the land situated at Aralikatti village measuring 18 acres 18 guntas was not divided and was kept in common. Even pursuant to the partition, waradi was given to the authorities to change names in the Record of Rights. Plaintiffs No.1 and 2 and defendant continued living together in Malamaddi village at Dharwad and they were enjoying the properties jointly. The partition dated 31.3.1956 was the nominal partition and was not at all acted upon by the parties. In the year 1974, Bhimarao effected partition in respect of urban properties situated at Dharwad. The said partition was nominal one and the same was also effected to overcome the Urban Land Ceiling Act. During the life time of Bhimarao, some of the properties were sold to different persons by the father of the plaintiffs. During the year 1976 to 1996, defendant was incharge of agricultural operations and reported loss in agriculture for the most of the years. There is no actual partition by metes and bonds amongst the members of the joint family and earlier partition was nominal one and the same was unjust and unequal. Plaintiff No.1 was given -6- NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 31 acres of land, plaintiff No.2 was allotted 34 acres of land and defendant was allotted 53 acres of land. The lands which have been allotted to the defendant were more fertile lands than the plaintiffs. He has been allotted larger extent of land than the plaintiffs without there being any valid reasons. Similarly in the division of urban properties, defendant and plaintiff No.2 were allotted about 8 and ½ guntas of valuable land each in Malamaddi, Dharwad along with residential building, whereas plaintiff No.1 was given 4 guntas of land in Hale Taluk Kacheri Oni. The plaintiffs and defendant even after partition of agricultural lands and urban properties continued to enjoy the agricultural lands and urban properties jointly as the partition was nominal one. The father of plaintiff No.1, 2 and defendant, Bhimarao had relinquished all his properties on 13.08.1947 in favour of his children and wife by executing the registered relinquishment deed. After executing the relinquishment deed, the father has lost all his rights over the joint family and he ceased to be the manager of the family after 1947, but however, Bhimarao -7- NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 partitioned agricultural properties belonging to the minor children in the year 1956. He effected partition of the urban properties in the year 1974. the partition which has been effected by Bhimarao was not at all binding on the plaintiffs as Bhimarao had no authority or power to effect partition, as he ceased to be the manager of the family. Plaintiffs and defendant were enjoying the joint family. Hence plaintiffs demanded for partition and separate possession, but the defendant refused to effect the partition. Hence cause of action arouses for the plaintiffs to file a suit for partition and separate possession.
4. Defendant filed written statement denying the averments made by the plaintiff and supported the partition effected by his father. It is contended that, authorities have acted upon the partitions effected amongst the family members. It is contended that, the father of Bhimarao effected partition on 31.03.1956 in the agricultural lands since Bhimarao was not feeling well and as such, he was not in a position to cultivate the lands and -8- NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 look after the affairs of the agricultural establishment. It is admitted that no share was allotted to Smt.Sudha i.e., mother of plaintiff No.3. The reason for not allotting share to said Smt.Sudha is that, the father of the parties was alive and also the Hindu Succession Act was not in existence and as such, Smt.Sudha was not allotted share in the suit schedule properties. It is contended that the plaintiffs No.1 and 2 and defendant were living together in Dharwad along with their sons and daughters, but the name of the parties as per the memorandum of partition deed were entered in the Record of Rights. It is contended that the parties have acted upon partition deed of 1956 and also of the year 1974. It is admitted that, memorandum of partition has been effected on 16.08.1974 in respect of the properties situated in Dharwad. It is contended that the mother of plaintiffs No.1 and 2 and defendant was gifted approximately 6 acres of land by his father Laxman Rao. It is contended that the properties belongs to the mother of plaintiffs No.1 and 2 and defendant. Plaintiff No.2 sold the land and sale -9- NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 consideration amount is used for purchase of shares and the shares are with the plaintiffs. Defendant is also having a share. During the life time of Bhimarao, plaintiffs No.1 and 2 and defendant have sold some of the agricultural lands and the sale proceeds were utilized for education expenses of plaintiff No.1. After partition, on the basis of the memorandum of partition 1956, the tenants have filed Form No.7 against the respective owners and the said owners have defended their cases. The Land Tribunal, Dharwad, passed an order and the defendant contested the case up to the High Court and succeeded to retain the properties. Plaintiff No.1 is the employee residing in Dharwad and is not cultivating the land personally. It is contended that the defendant is in actual possession of his share as per the memorandum of partition, which was taken place in the year 1956, 1974 and 1997. Plaintiff No.1 is the retired Principal of Karnataka College, Dharwad and drawing a salary of more than Rs.25,000/- per month. It is contended that the defendant is handicapped and he is solely depending on the agricultural income. It is
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 contended that the plaintiffs No.1 and 2 have issued legal notice to the defendant on 11.06.1998 alleging that the defendant is acting detrimental to the interest of plaintiffs No.1 and 2 and called upon to stop illegal acts for utilizing properties and come forward to settle the dispute in respect of equitable partition of joint family property. The said notice was given by suppressing the fact of partition. Plaintiffs No.1 and 2 were giving unnecessary harassment and causing trouble both in home and at the land. It is contended that the plaintiffs have filed a suit with malafide intention as they have economic power, influence and muscular power. The defendant is the youngest brother of the family. It is the duty of the eldest brothers to solve the problem, but they are creating problems. It is contended that, all the family properties are partitioned by metes and bonds and all are in separate possession and enjoyment of their respective shares. Nothing has been left out to divide and the question of reopening of partition does not arise and hence there is no cause of action to file the suit. Hence prayed to dismiss the suit.
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017
5. Defendant filed additional written statement. It is contended that, the father of plaintiffs No.1 and 2 and defendant, relinquished all his properties whatever he was having till 13.08.1947. It is true that in the year 1956, father partitioned only agricultural properties. It is denied that the unequal share in the properties absolutely belongs to the minor children and their guardian. It is contended that the Hindu Succession Act came into force on 17.06.1956. The daughters having no share in the family properties prior to the Hindu Succession Act, 1956 came into force. It is contended that, in the year 1974, Bhimarao, once again without having a right, title or interest of any kind over the residential properties situated in the urban area effected unregistered partition deed between the father and his male children only, as the said properties were not partitioned earlier. It is contended that, plaintiffs No.1 and 2 and defendant are in actual possession of the properties fallen to their respective shares. The elder brother by name Narendra expired as bachelor and his share is distributed amongst plaintiffs
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 No.1 and 2 and also the defendant. Hence on these grounds prays to dismiss the suit.
6. The trial Court on the basis of the pleadings of the parties, framed the following issues:
1) Whether the plaintiffs prove that the suit schedule properties are the joint family properties of plaintiffs and defendant?
2) Whether the defendant proves the Apsat Watni patra dated 14.4.1997?
3) Whether the valuation for the purpose of the payment of the court fee and jurisdiction is correct and proper?
4) Whether the plaintiffs are entitled each for 1/4th share in the suit schedule properties?
5) Whether the plaintiffs prove that the defendant to be attempting to alienate the suit schedule properties?
6) If so, whether the plaintiffs are entitled for the relief of permanent injunction as sought for?
7) What decree or order?
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 ADDL. ISSUES
1) Whether the plaintiffs prove that registered partition dated 31.3.1956 and unregistered partition dated 16.8.1974 are nominal and not acted upon?
2) Whether defendant proves that suit is not maintainable for failure to include Rs.50.00 lakhs said to be earned by plaintiff No.1?
3) Whether the defendant proves that suit is not maintainable in the absence of relief to reopen partitions?
4) Whether the defendant proves that plaintiff No.3 has no locus standi to file the suit?
7. In order to substantiate the case of the plaintiffs, plaintiff No.1 was examined as PW1 and got marked 57 documents as per Exs.P1 to P57. Defendant is examined himself as DW1 and examined two witnesses as D.Ws.2 and 3 and got marked 7 documents as per Exs.D1 to D7(c). The trial Court after recording the evidence on record and considering the oral and documentary evidence answered issues No.1, 2, 4, 5, 6 and additional issue
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 Nos.1 and 4 in the negative and issue No.3 in the affirmative and consequently dismissed the suit of the plaintiffs. The plaintiffs aggrieved by the judgment and decree passed by the trial Court have filed this appeal.
8. Heard the learned counsel for the plaintiffs and learned counsel for the defendant.
9. Learned counsel for the plaintiffs submits that, the father of the plaintiffs No.1 and 2 and defendant was the manager of the family and in the year 1947, he had relinquished all his rights in the joint family properties in favour of his children and he has no right to continue as the manager of the joint family as he was relinquished his right in the joint family properties. In the year 1956, he effected a registered partition deed to over come the provisions of tenancy law in the Bombay Urban Land Ceiling Act. At the time of partition in the year 1956, plaintiffs No.1 and 2 were minors and the partition of 1956 was unjust and unequal partition was effected. The trial Court without considering the evidence and pleadings
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 properly, has erroneously come to a conclusion that the partition was effected by their father and the same has been acted upon. He further submits that, plaintiffs were minors and they were staying jointly along with their father and mother. There was no necessity for the father to effect the partition between the brothers. He submits that the said partition has been effected in the year 1956 in anticipation of the tenancy and ceiling laws. Even after the alleged partition of the year 1956, the parties are still in the joint possession of the suit schedule properties and the said partition of the year 1956 was unlawful and it was not acted upon by the parties. The said aspect was not considered by the trial Court. He further submits that, though the defendant has placed reliance on Ex.D7, i.e., the memorandum of partition Apsat Watni patra executed in the year 1997, the said document is an unregistered document and the said document is inadmissible in defence. The trial Court has committed error in placing reliance on Ex.D7. He submits, even assuming at no point of time there was partition in the year 1956, the
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 Court ought to have allotted share to the plaintiffs in the property allotted to Narendra, who died issueless. Hence he submits that the trial Court has committed an error in dismissing the suit of the plaintiffs. Hence on these grounds he prays to allow the appeal.
10. Per contra, learned counsel for the defendant submits that the partition has already been effected amongst plaintiffs No.1 and 2 and defendant and the partition was effected prior to the Hindu Succession Act coming into force. Hence no share was granted to the mother of plaintiff No.3. He submits that the parties have acted upon the registered partition deed of 1956 and on the strength of registered partition, names of respective parties were entered in the revenue records. Further, he submits that, in the year 1956 only agricultural lands were partitioned, but in the year 1974, the properties situated in Dharwad have been partitioned. On the basis of the said memorandum of partition of the year 1974, the names of the parties being entered in the records and
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 further action in the year 1997, memorandum of partition was executed, for which the plaintiffs No.1 and 2 are parties and he submits that plaintiffs No.1 and 2 have admitted their signature on Ex.D7. Hence he submits, when partition is already taken place amongst the parties, the question of seeking for repartition would not arise. He further submits that, though the partition was effected in the year 1976, 1974 and 1997, the plaintiffs have not challenged the registered partition deed of the year 1956, memorandum of partition of 1974 and 1997. Hence the suit for mere partition and separate possession without seeking for the relief of declaration is not maintainable. He further submits that the plaintiffs have filed the suit in the year 2007. Thus, the suit filed by the plaintiffs is barred by limitation. Hence on these grounds, he prays to dismiss the appeal.
11. Heard, perused the records and considered the submissions of the learned counsel for the parties. The following points arise for our consideration:
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 i. Whether the trial Court erred in confirming the partition even without unequal shares were allotted to plaintiffs No.1 and 2, confirming the partition effected in the year 1956, 1974 and 1997?
ii. Whether the plaintiff proves that the registered partition deed dated 31.03.1956 and unregistered partition deed dated 16.08.1974 are nominal and not acted upon?
iii. Whether the plaintiffs have made out any grounds for interference with the impugned judgment and decree?
iv. What order or decree? Point No.1 & 2:
12. Point No. 1 & 2 are taken up for discussion as they are interlinked and in order to avoid the repetition of facts and law.
13. It is the case of the plaintiffs that the father of plaintiffs No.1 and 2 effected partition on 31.03.1956 amongst the joint family members in respect of the
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 agricultural lands. The lands were divided amongst Bhimarao, Narendra, Krishna, Srinivas, Pralhad and Lakshmibai. At the time of effecting partition in the year 1956, plaintiffs No.1 and 2 were minors and no share was allotted to the mother of plaintiff No.3. It is contended that, on the strength of registered partition deed of the year 1956, names of the parties have been entered in the revenue records and plaintiffs No.1, 2 and defendant were living together. The partition deed dated 31.03.1956 was a nominal partition and was not acted upon by the parties. It is contended that, in the year 1974, Bhimarao effected partition in the urban properties situated at Dharwad and the said partition was nominal one and the same was effected to overcome the Urban Land Ceiling Act. It is contended that there was no partition by metes and bonds among the members of the joint family and further the properties allotted to the share of the plaintiffs No.1 and 2 are lesser than the shares allotted to the defendant. Defendant has taken larger extent of lands. The partition effected in the year 1956 is unequal and hence the
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 plaintiffs prays to reopen the partition. Further it is contended that the Bhimarao has relinquished all his rights in respect of the suit properties by virtue of registered relinquishment deed dated 13.08.1947 and hence after the execution of the relinquishment deed, the father of plaintiffs No.1 and 2 had no right to effect partition amongst plaintiffs No.1 and 2 and defendant. Hence the partition effected by their father is without authority.
14. In order to establish their case, plaintiff No.1 was examined as PW1 and reiterated the plaint averments in the examination-in-chief and produced documents. Exs.P1 to P6 are the RTC extracts. Ex.P1 - RTC pertaining to land bearing Sy.No.122 stands in the name of Pralhad Deshpande, Ex.P2 - RTC extract in respect of land bearing Sy.No.216 stands in the name of Narendra, Krishna, Srinivas and Lakshmibai, Ex.P3 - RTC extract in respect of land bearing Sy.No.252 stands in the name of Narendra Deshpande, Ex.P4 - RTC in respect of land bearing Sy.No.253 stands in the name of Narendra, Ex.P5 is the
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 RTC in respect of land bearing Sy.No.253/5 stands in the name of Srinivas Deshpande, Ex.P6 is the RTC in respect of land bearing Sy.No.283 standings in the name of Krishna Deshpande. Ex.P7 is the Rule card in respect of CTS No.106 stands in the name of Bhimarao Deshpande. Ex.P8 is the plain card in respect of the CTS No.897-906- 907-908-905+909, which discloses the name of Bhimarao Deshpande. Ex.P10 is the RTC extract in respect of CTS No.907 stands in the name of Krishna Bhimarao Deshpande. Exs.P11 to P15 are the property extract in respect of Sy.Nos.906, 909, 908, 897 and 19 which discloses the name of Krishna Bhimarao Deshpande. Exs.P16 and P17 are the mutation entries. Ex.P18 is the RTC of Sy.No.361/1 standing in the name of Rokhade Nemappa. Ex.P19 is the RTC of Sy.No.633 standing in the name of Madiga Basavennappa. Ex.P20 is the RTC of Sy.No.191 and Ex.P21 is the mutation entry. Ex.P22 is the RTC of Sy.No.992 and Ex.P23 is the Mutation entry. Ex.P24 is the RTC of Sy.No.249 and Ex.P25 is the mutation entry. Ex.P26 is the RTC of Sy.No.92 and Ex.P27
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 is the mutation entry. Exs.P28 and P29 are the RTC of Sy.Nos.114 and 211 and Ex.P30 is the mutation entry. Ex.P31 is the memorandum of partition deed executed in the year 1974 amongst plaintiff Nos.1 and 2 and defendant in respect of urban properties situated at Dharwad. Ex.P32 is the agreement of sale and Exs.P33 and P34 are the GPA's. Exs.D35 and D36 are the death certificates. Ex.P37 and P38 are the RC books. Exs.P39 and P40 are the doctor certificates issued by Dr.G.J.Patil. Ex.P41 is the Leaving Certificate and Ex.P42 is the certificate issued by K.E.Board's Composite Pre-University College stating that Pralhad Bhimarao Deshpande has passed the SSC examination in the year 1964. Ex.P43 is another certificate issued by the same college stating that Pralhad Bhimarao Deshpande is bonafide student of this school and he passed SSC in March, 1964 and the certificate issued on 23.12.2011. Ex.P44 is the GPA and Exs.P45 to P48 are the bank pass books. Exs.P49 and P50 are the house loan interest charge report. Ex.P51 is the
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 property extract, Exs.P52 to 56 are the VPC extracts and Ex.P57 is the relinquishment deed.
15. In the cross-examination, it is elicited that total area of lands are 119 acres. Schedule-C lands are the lands that gone under the Land Reforms Act. Schedule-B properties are already sold. It is admitted that Bhimarao Deshpande died in the year 1985 and mother Laxmibai died in the year 1973 and the mother of the plaintiff died in the year 1970. He admits that he is retired Principal of Karnataka Science College, Dharwad. He admits that in the year 1947 the family was possessing 400 acres of land and after execution of registered relinquishment deed in the year 1947 the names of the parties are entered in the revenue records. He also admits that he came to know about the execution of registered relinquishment deed in the year 1956 and he admits that in the year 1956, he was aged about 16 years and now I am aged about 72 years at the time of filing of the suit. He admits that Government of Maharashtra i.e., erstwhile Mumbai
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 Government in 1958-59 the Land Reforms Act was enacted in 1952. The State of Karnataka was re- established. He states that partition took place in 1956. In the year 1955 Mumbai Government was in the process of bringing Act, his father divided the lands in the name of plaintiff Nos.1 and 2 and defendant so that the land should not be lost. He did it to preserve the lands. Karnataka Land Reforms Act came to force in the year 1961. He admits that on 31.03.1956 partition deed was registered. At the time of execution of the registered partition deed, he was aged about 16 years. His mother represented them and signed as guardian to partition deed. He admits that in the year 1956 partition share was not allotted to Sudha his sister. During the lifetime she never demanded for partition till 1984. His father was taking responsibility of the family. After demise of his sister her daughter plaintiff No.3 never claimed for partition. It is true that P.W.1 and his friends Srinivas together gave notice to the defendant through Sri.Srikant Patil, Advocate. As per the said notice, it was written about allotment of shares. According to
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 1956 partition, names of all brothers entered in the records. He further submits that, as per partition of 1956, Schedule-A properties are not in possession of their respective party. Till today parties are united and partition is effected only on paper. It is denied that records have not been produced. I do not know that Schedule-A properties in Amminabhavi village standing in whose name. I do not know that there is reference to partition of 1956. I do not remember how many suit properties are there and the suit is for re-opening of partition. I am unable to tell the number and area of the suit properties. I have produced the RTC extract of suit properties and the tractor is in the name of my elder brother Narendra. My brother Narendra was suffering from mental illness and Ex.P39 was obtained on 15.12.2011. It is denied that Narendra has not taken any treatment from Dr.G.J.Patil. It is denied that he was giving sleeping pills and put to sleep and Dr.G.J.Patil is not psychologist. It is contended that some one asks Narendra to sign, he used to sign. He studied up to 10th standard. It is further contended that I
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 do not remember the date of birth of his sister Smt.Sudha i.e., plaintiff's mother. He submits that he born in the year 1940 and Pralhad, Srinivas and Sudha were born after him. His father did not give any property to Sudha at the time of execution of relinquishment deed. I do not know that there was no law to give property to girls at that time. Sudha was not given any share in the suit property. Pursuant to relinquishment deed and partition deed of the year 1956 all the properties were transferred in the name of respective parties. I do not remember how many cases were pending in respect of the suit schedule properties and those cases were against everyone in the family. The Karnataka Land Reforms Act came into force in the year 1961. I do not remember how long there was an opportunity to fill Form No.7 under Land Reforms Act after Land Reforms Act came into force. Who filed Form No.7 for the properties belonging to him and his brothers Srinivas and Pralhad. He did not remember how many lands his brother Srinivas and Pralhad got. I do not remember how many properties were acquired. It is not correct to suggest
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 that I have agreed for partition of the year 1956, 1974 and 1997 and signed on the document. Accordingly, S.R.Despande has drafted apsat watni on the said date, the memorandum of Palu Patti dated April 1992 was confronted and he identified his signature on it. The said document is marked as Ex.D7 and his signature is marked as Ex.D7(a). He admits that he has signed the document after reading the contents of the document. It is suggested that mother accepted all the properties on behalf of all the children and mother used to cultivate the lands. Father has no authority to effect partition in the year 1956 as he had already relinquished his share. He admits that no property was given to the mother of plaintiff No.3. It is denied that partition is unequal. It is denied that partition is effected to save the lands from ceiling limits. He admits that plaintiff No.1 was handling the case before the Land Tribunal, High Court and Hon'ble Supreme Court. It is suggested that on 16.08.1974 father himself allotted the residential plot at Dharwad City and Afsat Watni Patra was written and parties have signed an
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 partition deed. He admits that there was no dispute between plaintiffs and defendant.
16. P.W.1 admitted the signature on Ex.D7 memorandum of partition of 1997. Partition deeds contains only list of properties allotted to their share. The partition deed of 1956, 1974 and 1997 discloses that there was partition amongst plaintiff Nos.1 and 2 and defendant. In a suit for partition, the initial burden to prove that the suit properties are the joint family/ancestral properties is on the plaintiffs. The plaintiffs have failed to prove that as on the date of instituting the suit, the suit schedule properties are the joint family properties. The plaintiffs have not challenged the said partition within three years in spite of knowledge of partition. In view of Article 59 of the Limitation Act, the suit for reopening of the partition becomes time barred. The said partition is acted upon by the parties. As observed above, on the strength of the partition deeds, names of the respective parties are effected in the records. The plaintiffs estopped from
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 challenging that the partition deed was nominal and not intended to be acted upon. The Hon'ble Apex Court in the case of Azeez Sait dead by Lrs. And Others vs. Aman Bai and Others reported in (2003) 12 SCC 419, The Hon'ble Apex Court in para 20 held as under:
20. Learned counsel appearing for the appellants contended that the parties are governed by the provisions of Cutchi Menons Act. We are of the view that the issues as to whether Hindu Law or Mohammedan Law should be applied to the parties under suit is not really relevant and does not alter the situation because the partition had taken place in the year 1914 as between the brothers. The factum of partition and the deed of 1914 having been accepted, and in the absence of any evidence to destroy the validity of the partition deed the application of Hindu Law or Muslim Law would not alter the findings in the case. When the partition of 1914 has been accepted and acted upon by the brother for all these years and had brought about an equitable settlement of the distribution of the properties between them, the plaintiff/appellants
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 cannot now come round and say that the document is sham and nominal. A reading of the plaint would show that the plaintiff had never asked for a share in 'Abba Manzil' during the life time of Mohd. Abba Sait, and the suit was filed only after the death of Mohd. Abba Sait in 1967. It is also admittedly by the plaintiff that suit item No. 1 was in possession of Mohd. Abba Sait during his life time. Subsequently, defendants are in possession of the same. The entire evidence on record shows that the parties have been in possession and occupation of their respective shares and properties allotted under the partition deed and have dealt with the same. The trial court as well as the High Court have accepted the partition of 1914 for the cogent and convincing reasons recorded thereunder. The appellants have not shown any reason to interfere with the judgment of the High Court.
17. Defendant was examined as D.W.1. He has deposed that father relinquished his share in favour of his sons in the year 1947. The partition was effected in the year 1956 in respect of agricultural lands and same is
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 registered one. On 16.08.1974, father once again effect the registered partition in the urban properties situated at Dharwad City. Properties situated at Amminabhavi village is also partitioned in the year 1997. As per the partition deed and memorandum of partition, parties are in their respective possession and names are entered in the records of rights. Defendant is persually cultivating the properties which is allotted to his share. Plaintiff No.1 is retired Principal from the Karnataka Science College, Dharwad and getting sufficient pension and reserved fund. In the course of cross-examination, it is suggested that pas per the registered relinquishment deed of 1947 father has relinquished his right in favour of the sons. DW-2 was examined and he has deposed that memorandum of partition Ex.D-7 was drafted by him as per the instruction of parties. After draft, he read over and explained to them, they have affixed this signature on Ex.D-7 except denial nothing has been elicited from this witness. DW-3 is the son of Rangaraj Deshpande who is the attesting witness to
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 Ex.D-7. He identified his father's signature as Ex.D7(C). Except denial nothing has been elicited from this witness.
18. Admittedly, in the instant case, partition was effected in the year 1956, 1974 and 1997. Plaintiff Nos.1 and 2 and defendant have affixed their signature on the said document and on the strength of the partition deeds, the names of the respective parties are entered in the records as well as in the Municipal records at Dharwad. The parties have acted upon on the said partition deeds. It is the case of the plaintiffs that partition effected between plaintiff Nos.1 and 2 and defendants is unequal. The said partition effected on 3 occasions i.e., 1956, 1974 and 1997. The plaintiffs have not raised objections on the ground that partition effected between the parties is unequal till 2007. The Hon'ble Apex Court in the case of Smt.Krishnabai Bhritar Gapatarao Deshmukh vs. Appasaheb Tulajaramarao Nimbalkar and Others reported in (1979) 4 SCC 60 and in the case of Parvathamma and Others vs. Venkatsivamma and
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 Others reported in (2016) 15 SCC 436 held that mere existence of unequal shares does not lead to inference of fraud or coercion.
19. Mere execution of the registered partition deeds to save the lands from the clutches of the Land Tribunal is not a ground to discard the registered partition deeds.
20. Further, the plaintiffs seeking to have documents i.e., partition deeds of the year 1956, 1974 and 1997 to be cancelled or avoided, necessarily a declaration has to be given by the court in that regard until documents are avoided or cancelled by proper declaration. The duly registered documents remain valid and binds the parties. Hence, the plaintiffs filed the suit for partition and separate possession without seeking for the relief of cancellation of registered partition deed by proper declaration. The suit filed by the plaintiffs is not maintainable.
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017
21. From perusal of the oral and documentary evidence, it is clear that there was partition between plaintiff No.1 and 2 and defendant and the said fact has not been disputed by the plaintiffs. There was no joint family in existence as on the date of institution of suit. There is a severance in the status. In view of the above discussion, we answer point Nos.1 and 2 in the affirmative.
Point No.3
22. The trial court after considering the oral and documentary evidence was justified in recording the finding that plaintiffs have failed to prove that as on the date of institution of the suit, the suit schedule properties were the joint family property of plaintiffs and defendant and rightly dismissed the suit of the plaintiffs. The trial court was justified in upholding the partition effected between plaintiff No.1, 2 and defendant. We do not find any good ground to interfere with the impugned judgment and decree passed by the trial court.
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NC: 2023:KHC-D:6278-DB RFA No. 100129 of 2017 Point No.4.
23. In view of the discussions made on point Nos.1 to 3, we proceed to pass the following:
ORDER The appeal is dismissed.
The judgment and decree dated 08.02.2017 passed by the I Additional Senior Civil Judge & CJM Dharwad in O.S.No.461/2007 is confirmed.
No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE gab/MBS/ct-abn List No.: 1 Sl No.: 1