Karnataka High Court
H S Avinash vs H R Sathyanarayana on 11 January, 2022
Bench: S.Sujatha, Ravi V Hosmani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2022
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
R.F.A. No.775/2014(PAR)
BETWEEN:
1. H.S.AVINASH
AGED ABOUT 37 YEARS
S/O H.R. SATHYANARAYANA
R/A KARE BAILU VILLAGE
KASABA HOBLI, MUDIGERE TALUK
CHIKMAGALORE-577 101.
2. SMT.H.S.ASHITHA
AGED ABOUT 31 YEARS
W/O PRASHANTH
R/A BANGALORE, C/O M.B.DHARANI
HANUGUNAHALLI
CHIKANAHALLI POST, BELUR.
...APPELLANTS
[BY SMT. SHWETHA ANAND, ADVOCATE (VC)]
AND:
1. H.R.SATHYANARAYANA
AGED ABOUT 60 YEARS
S/O LATE RANGEGOWDA
HANUGUNAHALLI
BELUR TALUK, HASSAN DISTRICT
CHIKKANAHALLI POST-573 116.
2. SMT.H.S.AMEETHA
AGED ABOUT 30 YEARS
2
W/O SANTHOSH, C/O M.B.DHARANI
HANUGUNAHALLI, CHIKKANAHALLI POST
BELUR TALUK
HASSAN DISTRICT-573 116.
...RESPONDENTS
[BY SRI. JWALA KUMAR, ADVOCATE FOR R1 (VC);
SMT. A.R.SHARADAMBA, ADVOCATE FOR R2 (PH)]
THIS RFA IS FILED UNDER SECTION 96 R/W
ORDER 41 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 28.03.2014 PASSED IN
O.S.NO.188/2007 ON THE FILE OF THE I ADDL. SENIOR
CIVIL JUDGE AND JMFC., CHIKMAGALORE, DIRECTING
THE PLAINTIFFS THEREIN TO PAY THE COURT FEE ON
THE MARKET VALUE OF THE PROPERTY INVOLVED IN
THE PARTITION DEED DATED 11.01.1999 I.E.,
RS.38,62,926/- AS PROVIDED UNDER SEC.38 OF THE
KARNATAKA COURT FEES AND SUIT VALUATION ACT,
BY NEXT DATE OF HEARING WITHOUT FAIL.
THIS APPEAL HAVING BEEN RESERVED FOR
JUDGMENT ON 27.08.2021, THIS DAY, RAVI V
HOSMANI J., PRONOUNCED THE FOLLOWING:
JUDGMENT
Challenging judgment and decree dated 28.03.2014 passed by I Additional Senior Civil Judge, at Chikkamagalur, in O.S.No.188/2007, this appeal is filed.
2. Appellants herein were plaintiffs no.1 and 2, while respondents herein were defendants no.1 3 and 2 respectively. Hereinafter parties are referred to as per their ranking before trial Court.
3. Brief facts as stated are that plaintiffs filed a suit against defendants seeking re-opening of partition deed dated 11.01.1999 and for fresh partition deed and to allot 1/4th share each to plaintiffs in suit schedule property by metes and bounds, to put them in possession of their share and also for accounts and mesne profits etc.
4. The schedule annexed to plaint contained particulars of immovable properties belonging to joint family of plaintiffs and defendants, of which fourteen are agricultural properties, three urban properties consisting of shopping complex and partially completed cinema theatre and one house property situated at Arehalli, Belur.
5. In the plaint, it was stated that schedule properties were Hindu Joint Family properties of plaintiffs and defendants and defendant no.1 was 4 Karta of family. On the pretext of reducing taxes, defendant no.1, devised a nominal partition deed dated 11.01.1999, in which non-agricultural properties like commercial and urban properties including uncompleted theatre having shops, worth more than Rs.2.00 crores were shown to the share of defendant no.1. At the time of taking signature, plaintiffs were told that actual partition would be effected later. As partition was nominal, even thereafter, all parties resided together. Later, when defendant no.1 started giving pinpricks and during 2007, plaintiff no.1 demanded equal partition and division of properties by metes and bounds, but was refused on the ground of earlier partition. It was stated that defendant no.1 as father, used his influence to get partition deed dated 11.01.1999, signed by all parties under undue influence. It was stated that as partition was not equal, it was nominal, executed only for reducing taxes etc., and plaintiffs were not given any share in agricultural properties.
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6. On service of summons, defendant no.1 entered appearance and filed written statement opposing the suit. It was contended that defendant no.1 was not karta of family. Plaintiff's assertion of denial of share in urban/residential/agricultural properties was disputed. Valuation of properties as alleged was also denied. Plaintiff's assertion that even after partition, parties resided together was also denied. Even assertion that plaintiffs put defendants in joint and constructive possession of schedule properties was denied. Existence of uncompleted cinema theatre opposite to bus stand at Belur town was admitted. It was stated that partition deed was executed in presence of witnesses and acted upon as parties were in possession and in enjoyment of their respective share of properties by paying property taxes separately. It was also stated that even plaintiff no.1 was managing coffee plantation independently. It was further submitted that partition in question was by way of a registered partition deed and acted 6 upon, therefore, plaintiffs were estopped from questioning it. It was further stated that urban properties situated at Belur town had suffered encroachments due to neglect and defendant had to borrow loans to construct shops to prevent encroachment. Therefore, their current valuation could not be used for comparison. It was further stated that defendant no.1 performed marriages of defendant no.2 and plaintiff no.2 and borrowed loan for construction of shops which were not accounted for by plaintiff.
7. It was also contended that reliefs were not properly valued and that plaintiff was liable to pay court fee on total market value mentioned in registered partition deed. It was lastly contended that plaintiff had left out some properties sold by him after partition and also left out Jeep and other movable properties given to him under partition deed, therefore, there was non-inclusion of all joint family 7 properties. On said pleading sought for dismissal of plaint.
8. Based on pleadings, following issues were framed:
1) Whether the plaintiffs prove that, the partition deed dated 11.01.1999 is only share, nominal, void and unjust and the same is not binding on them?
2) Whether plaintiff proves that they in joint and constructive possession of suit schedule properties?
3) Whether the defendant no.1 proves that, plaintiffs have obtained their legitimate share and residing separately?
4) Whether the defendant no.1 proves that, court fee paid is insufficient?
5) Whether defendant no.1 proves that suit is bad for non-joinder of other properties, which are in possession of plaintiffs?
6) Whether the plaintiffs are entitled for re-
opening the partition deed 11.01.1999?
7) Whether the plaintiffs are entitled for partition and separate possession of their 1/4th share in the suit schedule properties?
8) Whether the plaintiffs are entitled for accounts?
9) What order or decree?
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9. On behalf of plaintiffs, one witness was examined as PW.1 and exhibits P.1 to P.49 were marked.
10. Plaintiff no.1 examined himself as PW.1 and stated that plaintiff no.2 was his younger sister, defendant no.1 was his father and defendant no.2 was also his younger sister. He stated that schedule properties were joint family properties of plaintiffs and defendants and defendant no.1 was karta and commanding by nature. PW.1 further stated that defendant no.1 by telling them that in order to reduce tax, execution of partition deed was necessary and assuring them of regular partition later, forced them to sign partition deed dated 11.01.1999. As per partition deed, all valuable commercial and urban properties were given to defendant no.1 and only coffee plantation was given to others. PW.1 further stated that even after registration of partition deed, defendant no.1 was supervising all properties. It was specifically stated that as on 11.01.1999, plaintiff 9 no.2 was still a minor, but showing her as major, her signature was taken. It was further stated that share of defendant no.1 was worth more than Rs.2.00 crores, as value of residential and commercial properties was Rs.550/- per sq.ft, and Rs.750/- per sq.ft. respectively, while value of coffee plantation was about Rs.12.00 lakhs per acre, therefore, partition was unequal. It was nominal and sham.
11. It was further stated that after partition, defendant no.1 sold standing trees situated on land allotted to plaintiff no.1, to Sri Ramesh and retained sale value. It was stated that in fact, parties continued to reside together and marriage of plaintiff no.2 was performed on 20.12.2004, out of joint family funds. Only on 20.05.2007, when defendant no.1 threatened to sell away properties shown to his share, plaintiffs realised that they were falsely induced into signing partition deed dated 11.01.1999.
12. In support of oral evidence, plaintiffs also led documentary evidence. Copies of record of rights 10 and demand register extracts of properties were got marked as Exhibits P.1 to P.16. Copy of legal notice and postal receipt were got marked as Exhibits P.17 and P.18. Copy of impugned partition deed was marked as Ex.P.19. Certified copy of judgment passed in O.S.68/1993 was marked as Ex.P.21. Copy of legal notice issued by H.G. Channegowda was marked as Ex.P.22. Copy of registered partition deed dated 01.08.1987, order sheet in RFA no.535/1986 and decree passed in R.A.No.14/1980 were marked as Exs.P.23 to P.25. Ex.P.27 is copy of Birth Certificate of plaintiff no.2. Copy of order of Deputy Commissioner, Chikkamagalur dated 26.02.1999 and order of Deputy Conservator of Forest along with list of trees and sketch were marked as Exs.P.28 to P.31. List of market value of properties and endorsement issued by the Sub-registrar were marked as Exs.P.36 to P.40. Original sale deed dated 23.10.2000, plaint in O.S.No.29/2008, copy of agreement between defendant no.1, plaintiff no.1 with B.N. Ramesh were marked as Exs.P.41, P.46 and P.47. Copies of plaints 11 in O.S.No.188/2001 and O.S.No.199/2000 were marked as Exs.P.48 and P.49 respectively.
13. During cross-examination of PW.1, it was elicited that after death of their grandfather, scheduled properties were mutated in favour of Defendant no.1; that plaintiff no.1 was born on 10.05.1974 and defendant no.2 was born during 1978, plaintiff no.2 was born on 21.03.1981, etc. He further stated that Sri H.V. Thimmegouda, son of his grandfather's brother, was a reputed advocate of Hassan Bar and a family elder and that most of properties inherited by his father were coffee plantations and only an extent of 39 guntas was wet land. PW.1 admitted that there was an uncompleted cinema theatre in the land opposite to Bus-stand, Belur, which had ten shops, in possession of tenants and reason for not completing construction of cinema theatre building was, litigation against tenants. 12
14. By confronting PW.1 with partition deed dated 11.01.1999, it was got marked as Ex.D1. PW1 admits that himself, his sisters and defendant no.1 had signed Ex.D1 and that it was also signed by Sri H.V. Thimmegouda and his uncles H.V. Shashidhar, Prasanna and Keshavgouda as witnesses. He further admitted that he was allotted 23 acres of coffee plantation; 13 acres 10 guntas was given to sister - Asmita; 13 acres and 15 guntas to his other sister - Ashita, while defendant no.1 took 13 acres of coffee plantation, 39 guntas of wet land and half-constructed cinema theatre and shops as well as residential house at Hanugavanahalli.
15. PW. further admits that in terms of Ex.D1, names of respective parties were mutated in revenue records. It was also elicited that he was residing in a house constructed in Karebail estate by spending Rs.3 to 4 Lakhs, in 2003. Though he claims to have got money for construction by sale of property of his mother and admits that he borrowed loan from 13 Canara Bank by mortgaging properties fallen to his share as per Ex.D1. He also admits to have given application along with his sisters and defendant no.1 for change of khata in terms of Ex.D1.
16. PW.1 also admitted that after 2003, when he was looking after his share of coffee plantation, he got replaced earlier uneconomical coffee plantation with new plantation. He admitted that he had not shared income from coffee estate with defendant no.1 and was paying land revenue separately. He further admits that prior to Ex.D1 - partition, defendant no.1 sold standing trees to Sri Ramesh. Though he admitted that his sister Ashita studied in Poornaprajna School, Belur, but denies certificate issued by said school as stating her correct date of birth.
17. The defendants examined three witnesses. Defendant no.1 was examined as DW.1. In his deposition, DW.1 admitted relationship with plaintiffs and defendant no.2 and nature of suit properties as 14 joint family properties, but denied plaint averments regarding partition deed dated 11.01.1999 as nominal etc. It was stated that schedule properties had fallen to share of his father in partition between himself and his brothers and after death of his father in 1990, as his only son, he inherited properties and was managing them. He stated that after completion of SSLC in 1991, plaintiff no.1 was assisting him in the estate, but from 1996, he was residing separately.
18. He further stated that plaintiff no.1 was born on 10.05.1974, plaintiff no.2 on 22.10.1980 and defendant no.2, in 1978. As plaintiff no.1 demanded partition in 1998, a panchayat was convened in presence of Shri H.V. Thimmegowda, (advocate) and other family elders and after deliberation, partition deed dated 11.01.1999 was executed. At that time, plaintiff no.2 and defendant no.2 were unmarried. Partition was executed in accordance with law and therefore binding on them. It was acted upon and khata was also changed to their respective names. 15 Thereafter, plaintiff no.1 was looking after his share of properties as well as that of his sister. It was specifically stated that out of 3 acres 16 guntas in Sy.no.94, allotted to him, plaintiff sold an extent of 01 Acre 20 guntas and 1 acre 1 gunta in Sy no.791, to Smt. A.G. Vandana, under sale deed dated 23.10.2000 for consideration of Rs.3,15,000/-. It was further stated that plaintiff constructed a residential bungalow in one of properties allotted to him, spending more than Rs.10,00,000/- availing financial assistance from Canara Bank, Mudigere.
19. DW.1 further stated that one of commercial properties allotted to him in partition was an uncompleted theater situated opposite to KSRTC bus stand, Belur. He stated that though his grandfather had begun construction, it could not be completed due to litigation. Therefore, he put-up temporary sheds in the vacant space in front of theater to prevent outsiders from trespassing. He further stated that on account of litigation, he was 16 not getting agreed rent from property. It was alleged that though partition was lawful, on instigation of persons inimical to his interests, plaintiffs had filed the suit.
20. In support of his deposition, DW.1 got marked certified copy of sale deed dated 23.10.2000 as Ex.D.2, copy of mutation order MR No.7/2000- 2001 as Ex.D.3 and copy of school certificate of plaintiff no.2 as Ex.D.4.
21. In his cross-examination, photograph of an uncompleted cinema theater was confronted and got marked as Ex.P.42, as he admitted it. Likewise, copies of photographs of house in Hanuganahalli were marked as Exs.P.43 to P.45. It was elicited that portion allotted to his share contained coffee plantation, residential house and haystack. To a suggestion that plaintiffs were not given house and haystack in partition, DW.1 stated that it was given to plaintiff no.1. DW.1, does not deny market value of shares of properties. It was admitted by DW.1 that on 17 05.12.2008, he had entered into an agreement for sale of half-constructed cinema theater for Rs.1.25 crores of rupees. He admits that he was paying land revenue upto 2007 in respect of lands allotted to plaintiff no.2 and defendant no.2. DW.1 admits that he was prosecuting litigation in respect of shop premises in Belur. It was also specifically admitted that Shree Medicals was paying monthly rent of Rs.9,000/-. He also admits receiving monthly rent of Rs.2,000/- from one of tenants, but denies receiving Rs.5,000/- as rent from ABC company.
22. DW.1 admits for having sold timber to Shri Ramesh and also about filing case against him for dishonor of cheque issued towards purchase price of timber. DW.1, however states that he does not remember date on which panchayat met and whether deliberations were reduced into writing. He also states that he does not remember whether panchayat included his brothers Suresh and Sundresh and was unable to tell names of panchayatdars. It is elicited 18 that along with advocate Thimmegowda, he instructed Karanth for preparation of Ex.D.1. He denies suggestions that panchayatdars were not provided documents regarding suit schedule properties and earlier partition that took place between his grand-father and his brothers, was not given to them.
23. It is elicited that upto 2007, DW.1 was managing properties of his daughters and maintained accounts. He also admits that no provision was made towards maintenance of his wife in Ex.D.1. He however denies suggestion that in order to sell theatre property, he got Ex.D.1 prepared in haste and secured signatures of plaintiffs by making them believe that it was necessary for the purposes of saving tax.
24. Copy of sale deed dated 23.10.2000 was got marked as Ex.D.2. Copy of mutation order in M.R.No.7/2000-01 was marked as Ex.D.3, while 19 school certificate of plaintiff no.2 was got marked as Ex.D.4.
25. Sri H.A. Prasanna, cousin of defendant no.1 and uncle of plaintiffs was examined as DW2. He deposed that during December 1998, when plaintiff no.1 demanded partition, panchayat was held in the house of Sri. Thimmegowda, in which plaintiffs and defendants participated. In the presence of Sri. H.V.Thimmegowda, advocate and Panchayatdars deliberations were held. As per settlement arrived, Ex.D.1 - partition deed was prepared and executed. It was also registered with Sub-registrar, Mudigere. DW.2 further stated that after partition parties were in possession of their respective shares of property. DW.2 further stated that he was one of the witnesses to Ex.D.1 - partition deed. DW.2 was not cross-examined.
26. Sri. H.V. Thimmegowda, advocate was examined as DW.3. Even DW.3 was also a cousin of defendant no.1. He deposed that during 1998, when 20 plaintiff no.1 demanded partition, panchayat was held in his house and after participation and discussion between plaintiffs and defendants; Ex.D.1 came to be signed and registered. DW.3 stated that he was one of attesting witnesses to deed of partition. Cross-examination of DW.3 is as follows:
27. DW.3 admits suggestion that affidavit examination-in-chief was prepared as per his instructions. In the affidavit statement that panchayat was held in the house of defendant no.1 was struck off and corrected as held in his house. He denies suggestion that no deliberations either in the house of defendant no.1 or in his house were held. He admits that deliberations were not reduced into writing. He also does not remember date and how many persons were present in panchayat. He denies a suggestion that no such panchayat was held. Though, DW.3 admitted that he did not ascertain total extent of properties held by the family, he stated that the family held 63 acres of coffee estate and 6 21 acres of agricultural lands, a residential building in Cheekanahalli and an uncompleted cinema theatre in Belur town. He admits that valuation of properties was not considered by panchayat. He states that he did not decide shares of parties or told them that female heirs would also be entitled for equal share. He however states that he had asked them whether they understood and agreed for shares allotted to them and noted their approval. DW.3 states that he does not know whether properties as per shares were measured and parties were put in possession.
28. It is elicited from DW.3 that normally when there were more than one house joint family properties consist of two residential premises both are not allotted to same person. To a suggestion that defendant no.1 entered into agreement of sale in respect of half-constructed cinema theatre at Belur for Rs.1.35 crores, DW.3 admits same, but clarifies that it was much after execution of partition deed. 22 DW.3 admits suggestion that plaintiff had developed lands that had fallen to his share.
29. On consideration of above evidence, trial Court answered issues no.1, 2, 6, 7 in negative, issues no.3 to 5 in affirmative and issue no.9 by dismissing suit with costs. Assailing said judgment and decree, plaintiffs are in appeal.
30. Smt. Shwetha Anand, learned counsel for plaintiffs-appellants submitted that impugned judgment and decree was contrary to facts of case and evidence on record. It was submitted that trial court failed to appreciate evidence on record in proper perspective. Learned counsel submitted that as on 11.01.1999, plaintiff no.1 was 23 years of age, but plaintiff no.2 was a minor. They were under care and control of defendant no.1, who in the position of their father was dominant. They lacked proper guidance as their mother was not residing with them. Therefore, trial court committed error in holding that plaintiffs agreed to accept grossly unequal share 23 during partition. It was further submitted that impugned partition deed did not mention that it was executed on demand of plaintiffs. Therefore, it has to be presumed that there was no occasion for effecting partition when plaintiff no.2 was still a minor and share allotted were not in accordance with provisions of Hindu Succession Act, 1956.
It was further submitted that valuable properties were allotted to share of defendant no.1, while value of share allotted to plaintiffs was paltry in comparison which indicated that partition effected was a sham. It was submitted that partition was neither equal nor equitable. It was further submitted that partition was not by metes and bounds and that revenue records were mutated only to give effect to, purpose for which partition deed was devised, namely for saving tax. It was further submitted that value of properties were not either mentioned or taken into account at time of allotment of shares and consequently shares allotted were lopsided against 24 plaintiffs. It was submitted that allotment of house property and semi-constructed building having 10 shops fetching rent was admitted by defendant no.1. It was submitted that existence of litigation, that too for eviction of tenants would not seriously devalue the property. By attributing unnecessary weightage to litigation, trial Court sustained unequal partition. The fact that plaintiffs were under care and custody of defendant no.1, at time of execution of partition deed and defendant was in dominant position was not taken note of by trial court. It was further submitted that as earlier coffee plantation was spent and continuing it was commercially unviable, plaintiffs got new plantation done. Based only on said fact, trial court concluded that plaintiff no.1 accepted the partition and that it was acted upon.
31. It was also contended that trial court was influenced by appearance of Senior Advocate of Hassan Bar, who was also State Bar Council Member as DW.3. It blindly accepted his deposition that he 25 was one of panchayatdars for effecting partition between plaintiffs and defendants. Learned counsel submitted that there was contradiction between deposition of DW.1, DW.2 and DW.3 regarding composition of panchayat.
32. In support of her contentions that in respect of variation in date of birth between entry in School records and Government records, entry in School register to be discarded, learned counsel relied upon following decisions:
i) (2010) 9 SCC 209, in Madan Mohan Singh and others vs. Rajni Kant and another. ii) (2009) 7 SCC 283, in CIDCO vs. Vasudha Gorakhnath Mandevlekar.
33. On the other hand, Shri Jwalakumar for defendant no.1 and Smt. A.R.Sharadamba, advocate for defendant no.2 supported judgment and decree and opposed appeal.
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34. It was submitted that though initially plaintiff no.2 was arrayed as a defendant no.3, later on transposed as plaintiff no.2. Main ground of challenge to partition deed was that defendant no.1 using his dominant position as father and karta of the family, had got plaintiffs to sign partition deed by telling them it was required to save payment of huge Taxes. Partition was also challenged on the ground of being unequal and executed when plaintiff no.2 was still a minor. However, plaintiff no.2 did not enter witness box. It was submitted that though allegation of fraud was made, same was not substantiated by proper pleadings as mandated under the provisions of Order VI Rule 4 of CPC. It was further contended that absolutely no evidence was led to substantiate regarding properties or income attracting huge tax. Even no evidence was led to substantiate allegation against defendant no.1 that he had obtained their signatures to Ex.D.1 on false assurance that a regular and equal partition would be effected later. 27
35. In support of his contentions learned counsel relied upon following decisions:
i) (1976) 1 SCC 214 in Rathnam Chettiar and others vs. M.Kuppuswami Chettiar and others, for the proposition that partition effected between member of Hindu Undivided Family cannot be reopened unless it is shown to be obtained by fraud, coercion, misrepresentation or undue influence, requiring strict proof of facts.
iii) AIR 1984 NOC 237 (KAR), in Bidari Basamma (deceased by LRs) and others vs. Kanchikeri Bidari Sadyojathappa and others, for the proposition that mere allegation of partition being a sham to avoid taxes would not be sustainable as mere sham document would not help avoid tax and also for the proposition that coparceners staying together and propositus managing properties even after partition would be immaterial.
iv) (1981) 1 Kar.L.J.174, in Madegowda vs. Madegouda and another, for the proposition that unless difference in valuation of properties shocked the conscience of the Court, benefit of illustration (c) to Section 16 of Indian Contract Act would not be available.
36. From the above, it is not in dispute that parties constitute Hindu joint family and schedule properties were their ancestral joint family properties. 28 It is not disputed that partition deed was executed on 11.01.1999. While, plaintiffs allege that partition was unequal, nominal and result of undue influence and fraud, defendants contend that partition deed was executed in accordance with law after holding deliberations in the presence of panchayatdars and it was not only registered, but also acted upon and therefore, was binding on them. Defendants denied allegations of undue influence or fraud.
37. Therefore, following points that would arise for our consideration are:
i) Whether trial court erred in confirming partition even when unequal shares were allotted to plaintiffs?
ii) Whether trial court erred in holding that no fraud or undue influence was committed by defendant no.1?
iii) Whether trial court committed error in relying upon school certificate - Ex.D.4 ignoring birth certificate - Ex.P.27 to hold that plaintiff no.2 had attained majority at the time of execution of partition deed?
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38. While passing impugned judgment and decree, trial court clubbed issues no.1 to 3. It took note of evidence placed by parties on record. It observed that there was no dispute about suit properties being ancestral joint family properties of parties. It also observed that there was dispute about purpose of partition deed dated 11.01.1999. Main ground of plaintiffs challenge is that there was no regular partition, partition under the deed was unequal, therefore, it was nominal, executed only for reducing tax. Plaintiffs also contended that defendant no.1 was their father and being in a dominant position, obtained their signatures to the deed by assuring them that regular partition would be effected later. Trial Court also took note of plaintiffs assertion that even after execution of partition deed dated 11.01.1999, parties continued cohabitation. Later on when plaintiff demanded partition and defendant denied same on the ground of partition 30 dated 11.01.1999, they realized that fraud was committed on them.
39. Insofar as allegation of undue influence and fraud, trial court referred to evidence of defendants, wherein he examined himself as DW.1 and also examined two witnesses to Ex.D.1 - partition deed as DW.2 and DW.3 respectively. Both deposed that as plaintiff no.1 demanded partition during 1998, panchayat was convened in the house of DW.3. After deliberation and on arrival of settlement, partition deed dated 11.01.1999 was executed by all the parties. Trial court took note of the fact that DW.3 was also an elder member of the family, who facilitated partition. Trial court observed that despite cross-examining defendant witnesses, plaintiff failed to discredit their testimony. On said observation, trial court rejected challenge on the ground of partition being nominal. It also held that plaintiffs failed to establish that partition deed was executed to save tax, as no evidence was led to show extent of tax 31 applicable and saved. Referring to decision in Bidari Basamma's case (supra), it held that challenge to partition as being nominal for saving tax etc., would not hold good as a nominal deed would not be useful for avoiding statutory dues.
40. Trial court held that plaintiff admitted that they along with defendants had applied for change of khata in terms of impugned partition deed. It also observed that plaintiff admitted he was independently managing coffee plantation fallen to his share and developed it and that he constructed a house in the said plantation borrowing loan from Canara Bank, Mudigere Branch by mortgaging immovable properties fallen to his share. In view of said admission, trial court held that partition was genuine and had been acted upon.
41. Insofar as challenge on the ground of fraud and partition being unequal, trial court held that allegation of fraud was not properly substantiated by adequate pleadings as required 32 under Order VI Rule 4 of CPC. Trial court further held that mere allegation of unequal partition would not lead to a conclusion that it was induced by fraud or misrepresentation. Relying upon decision in Madegowda's case and also Rathan Chettiar's case (supra), it held that allegation of fraud and misrepresentation had to be established by clear pleadings. It held that mere allegation of unequal share does not take away bindingness of partition, where it was executed willingly.
42. Trial court also addressed main grievance of plaintiffs viz., valuable commercial and urban properties were given to share of defendant no.1, while less valuable properties were allotted to plaintiffs. It observed that defendant established existence of litigation with regard to said properties and subsequent increase in value would not be a justification for reopening partition.
43. Insofar as contention that at the time of execution of impugned partition deed, plaintiff no.2 33 was still a minor with reference to date of birth mentioned in birth certificate-Ex.P.27, trial court referred to school certificate - Ex.D.4, indicating her date of birth as 22.10.1980, as per which, she would have attained majority as on 22.10.1998. It also took note of the circumstances existing at the time of execution of partition deed. It held that partition was not only effected after deliberation between parties before panchayatdars, but it was also registered which would have required plaintiff no.2 to have appeared before Sub-Registrar and that plaintiff no.2 was an educated lady. Trial court also drew adverse inference against plaintiff no.2 not stepping into witness box. At the same time, trial court also took note of the fact that plaintiffs did not allege any malafide on the part of defendant no.1, that he was addicted to any vices.
44. Yet another factor taken note of by trial court was the fact that plaintiff no.1 admitted during cross - examination that he had sold 1 acre 20 34 guntas of land in Sy.no.94 and 1 acre 1 guntas of land in Sy.No.79/1 to Smt. A.G.Vandana, under Ex.D.2 - sale deed, but plaintiff failed to include said properties into suit schedule. Trial court referring to admission of plaintiff no.1 that he had sold portion of property to Smt.A.G. Vandana, came to a conclusion that suit was bad for non-joinder of all joint family properties.
45. Trial court also held that plaintiffs contention that after execution of partition deed, defendant no.1 sold standing trees in the land that had fallen to share of plaintiffs, would not hold as plaintiff no.1 admitted that such sale was in terms of an agreement between plaintiff, defendant no.1 and Ramesh and that plaintiff had received sale consideration.
46. In view of its finding on issues no.1 to 3, and 5, trial court answered issue nos. 6 to 8 in negative and dismissed the suit.
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47. On a careful consideration of the material on record, it is seen that though, plaintiffs allege fraud and undue influence, they have merely examined plaintiff no.1. As noted by trial court, the only pleading to support said allegation is an assertion that defendant no.1 told them Ex.D.1 was nominal executed only for saving tax and that regular partition would be executed later. The Hon'ble Supreme Court in the case of Rathnam Chettiar (supra) has held that allegations of fraud, coercion and undue influence would require strict proof of facts and based on mere allegations partition effected cannot be reopened. The only evidence of plaintiffs is self-serving statement. On the other hand, defendants have examined two of attesting witnesses to impugned partition deed. Both DWs.2 and 3 stated that when plaintiff no.1 demanded partition in 1998, panchayat was held, after discussion and settlement of terms, Ex.D.1 was signed. They specifically stated that they are witnesses to Ex.D.1. While DW.2 has not been cross-examined, there are no suggestions 36 put to DW.3 about any threat, coercion, inducement or fraud being committed on plaintiffs. In fact, there are no suggestions or elicitation regarding defendant no.1 making any assurance to plaintiffs that a regular partition would be effected later.
48. On careful examination of suggestions, it has to be held that Ex.D.1 was drawn after deliberation and discussion and parties executed same understanding its purpose. Ex.D.1 is in fact registered. Same would rule out possibility of fraud or false assurance.
49. In order to substantiate challenge to partition on the ground of shares being unequal, plaintiffs have stated that value of share allotted to defendant no.1 was worth more than 2.00 Crores. They sought to substantiate same by producing valuation of properties issued by Sub-registrar. But, admittedly, property allotted to defendant no.1 was under litigation. PW.1 admitted that grand-father of defendant no.1 had begun construction of theater, 37 but was unable to complete construction due to litigation. Even father of defendant no.1 or defendant no.1 himself failed to complete construction. DW.1 deposed that he was not getting agreed rents from tenants. In fact, Ex.P.21 produced by plaintiffs corroborate same. Indeed, it is not in dispute that plaintiff no.1 was allotted 26 acres of coffee plantation, while plaintiff no.2 was allotted 13 acres, while defendant no.1 and 2 were allotted 13 acres of coffee plantation each. Defendant no.1 deposed that marriages of both plaintiff no.2 and defendant no.2 were performed by him out of joint family funds, which is admitted by PW1 also. In any case, the Hon'ble Supreme 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 others reported in (2016) 15 SCC 463 held that mere existence of unequal shares does not lead to inference of fraud or coercion. The tenor of cross- 38 examination of defendant witnesses by the plaintiff does not lead to an inference that the said ground of challenge has been seriously pursued nor established. The fact that PW.2 or defendant no.2 did not step into witness box to stake their claim against unequal partition would also justify the finding of the trial court upholding partition.
50. PW1 in his cross-examination has admitted that he along with plaintiff no.2 and defendants had given application for mutation of revenue entries in terms of impugned partition, that he was managing coffee plantation fallen to his share and had also developed same. PW1 has further admitted that he has not shared income from coffee estate with others. It has also been elicited from him that for construction of house in coffee estate, PW1 had borrowed loan from Canara Bank, Mudigere Branch by mortgaging immovable properties that had fallen to his share in terms of Ex.D.1 - partition. It is also elicited that PW1 sold some portion of properties 39 that had fallen to his share in partition in favour of Smt. A.G. Vandana under Ex.D.2 - sale deed, which were not made part of suit schedule. PW1 admitted that signature of other members of joint family were not taken and sale consideration was received by him alone. In view of said admission, trial Court answered issue no.5 in affirmative. Above admissions would amply justify finding of trial Court that partition deed had been acted upon and hence plaintiffs would be estopped from questioning same.
It is also to be noted that PW1 was unable to clarify about tax liability both prior to partition and post partition. Therefore, thrust of plaintiffs case that defendant no.1 induced them to sign Ex.D.1 on the ground that it was required to save tax, would loose ground. There are no suggestions or elicitations with regard to tax incidence from any of defendant witnesses. Insofar as submission that there is contradiction regarding composition of panchayat as deposed by defendants witnesses, it is seen that 40 DWs.1 to 3 have consistently stated that panchayat met at the house of DW.3 in the presence of plaintiffs and defendants. None of them stated that DW.3 was also member of the panchayat. Evidence would indicate that Ex.D.1 was executed in his presence. DW.3 was 80 years of age at the time of deposition. Therefore, his deposition that he does not remember names of panchayatdars would not seriously dent evidentiary value of his deposition. Therefore, trial Court would be justified in rejecting said ground of challenge.
51. The findings of trial Court being with reference to evidence on record and conclusions drawn being just and proper cannot be termed as perverse or suffering from material irregularity. Therefore, there are no good or sufficient grounds to interfere. Points no.1 and 2 are answered in negative.
52. Insofar as, challenge to partition on the ground that plaintiff no.2 was minor at the time of partition, both parties have led evidence to establish 41 age of plaintiff no.2 as on date of execution of Ex.D.1. Plaintiff No.2 has not entered into witness box. As per Ex.P.27 date of birth certificate, plaintiff no.2 was born on 22.03.1981 i.e., short of one month eleven days to attain age of majority. Defendant has produced school certificate - Ex.D.4 indicating her date of birth as 22.10.1980 which would indicate that she would have attained age of majority on 22.10.1998. Ex.D.1 is executed on 11.01.1999. Admittedly, both plaintiffs are educated. Trial Court has not only considered the said factor, it has also considered circumstances under which Ex.D.1 was executed. As held above, Ex.D.1 was executed after due deliberation in the presence of parties and family elders. There is no evidence to substantiate undue influence or fraud. Under the circumstances merely on the ground that plaintiff no.2 was short of few days for attaining age of majority would not in any case be sufficient to upset a validly executed partition. Therefore, finding of trial Court upholding 42 Ex.D.1 - partition deed does not call for interference. Point no.3 is also answered in negative.
53. In the result, we pass following:
ORDER Appeal is dismissed.
No order as to costs.
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JUDGE Sd/-
JUDGE Psg*/bvk