Karnataka High Court
G. Rangaiah S/O Govindappa vs Govindappa S/O Sanna Rangappa And Ors. on 19 February, 2008
Equivalent citations: AIR 2008 KARNATAKA 151, 2008 A I H C 2786, 2008 (6) ALJ (NOC) 1204 (KAR.) = AIR 2008 KARNATAKA 151, 2008 (4) AIR KANT HCR 136, (2009) 73 ALLINDCAS 443 (KAR), (2009) 1 CIVILCOURTC 214, (2008) 6 KANT LJ 285, (2009) 106 REVDEC 168, (2009) 1 ICC 745
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
JUDGMENT D.V. Shylendra Kumar, J.
1. This Second Appeal is by the plaintiff in OS No. 384 of 1993, a suit for partition and separate possession of his one-fourth share in the suit schedule properties. Suit was on the premise that the plaintiff and defendants 1 to 5 constituted a joint family with defendant No. 1 being father of the plaintiff, defendants 2 and 3 being the step brothers of the plaintiff and the Defendant No. 4 being step mother of the plaintiff, which possessed all the properties described in the schedule to the plaint and as the defendant No. 1 was entering into many transactions with defendants 5 and 6 and even within the defendants 1 to 4 which is detriment to the interest of the plaintiff and as the first defendant was denying the due share of the plaintiff, it had become necessary to sue for the share of the plaintiff.
2. This suit though contested by the defendants had been decreed by the trial court, but the Judgment and decree having been set aside by the lower appellate court in the appeal filed by the defendants 1 to 4 and the suit having been dismissed by the lower appellate court, tills second appeal by the plaintiff.
3. The defendants had pleaded that the plaintiff was not a member of the family of defendants 1 to 4 any more; that there was an oral partition in the year 1975 as amongst the plaintiff, first defendant and another brother of the first defendant, namely, one Ranganathappa [not a party to the suit]; that the plaintiff had been given one-third share of the properties even at that time; that such division and partition had been later reduced to writing in terms of a document dated 15.7.1987 marked as Exhibit.D1; that the plaintiff has been, ever since enjoying his share of the properties separately; that the plaintiff has no right, title or interest in the properties that were in the possession and enjoyment of the defendants and even admittedly several of the properties having been acquired by the defendants subsequent to the division in the year 1975, the plaintiff cannot lay any claim for sharing such properties and therefore prayed for dismissal of the suit.
4. The defendants though admitted the relationship of the parties and also that the propositus one Thippajappa had left behind some properties, pleaded that he had three sons Doddarangappa, Sannarangajja and Seetharamajja; that the first defendant was son of Sannarangajja; that he had brothers by name Ranganathappa and Govindappa; that some of the properties had been shared equally amongst the brothers of Govindappa and at that time the plaintiff had also been given a share i.e., one-third share in the share of his father in an oral partition that took place in the year 1975; that the plaintiff had also been given a share in the house that had fallen to the share of the first defendant in the family partition; that on and after the year 1975, there was severance of status in the family and the parties were living separately and enjoying the properties separately; that the plaintiff had no cause of action to file the suit and therefore prayed for dismissal of the suit.
5. The genealogy indicating the relationship of the parties is as under:
Thippajappa |
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Doddarangappa Sannarangajja Seetharamajja
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| Ranganna Thippanna
| [Deft.No. 5] [Deft. No. 6]
|
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Govindappa Muddarangappa Ranganathappa
[Deft. No. 1]
|
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| |
Hombalakka Rangamma
[I wife of DD.] [II wife of Deft. No. 1]
| |
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G. Rangaiah Nagaraja Prahlada
[Plf.] [Deft. No. 2] [Deft. No. 3]
6. The trial court, on the basis of such pleadings, framed the following issues:
1. Whether plaintiff proves that himself and defendant No. 1 to 4 an joint family members?
2. Whether plaintiff further proves that himself and defendants are in joint possession and enjoyment of the suit schedule properties?
3. Whether defendants prove that a partition took place between plaintiff and defendant No. 1 in the year 1975 and in the said partition a separate share in the suit schedule properties described in the written statement was allotted to the plaintiff?
4. Is plaintiff entitled for partition and separate possession of his ¼th share in the suit schedule properties?
5. Is plaintiff entitled for declaration of registered partition deed dated 4.2.1993 executed by first defendant in favour of defendant No. 5 and 6 and another registered partition deed dated 4.3.1993 between defendant No. 1 to 4 is not binding on the 1/4th share of plaintiff in the suit schedule properties?
6. What order or decree?
7. The plaintiff had also sought for a declaration that two registered partition deeds of the year 1993 one dated 4.2.1993 - Exhibit.P2 amongst the defendants 1, 5 and 6 and Exhibit.P3 also marked as Exhibit.D2 dated 4.3.1993 amongst the defendants 1 to 4 were not binding on the plaintiff for the reason that the plaintiff while is not a party to these partition deeds, as they were deeds which were for depriving the plaintiff his due share they do not affect his entitlement nor bind him and hence the declaration was sought for.
8. The parties went to trial on such pleadings and on behalf of the plaintiff while the plaintiff himself was examined as PW.1, on behalf of the defendants, first defendant examined himself as DW.4, second defendant was examined as DW. 1, fifth defendant was examined as DW.5 and two other witnesses one Narasegowda and another Narasimhaiah were examined as DW Nos. 2 and 3 respectively said to be attestors of Exhibit.D1.
9. The documentary evidence on behalf of the plaintiff comprised of Exhibits. P1 to P3 - certified copy of the sale deeds under which the first defendant had acquired some suit schedule properties, Exhibit. P4 to P15 being the revenue extracts indicating the name of the first defendant Govindappa in all the revenue records of the suit schedule properties and Exhibits. P16 and P17 - assessment register extracts of the two houses of plaint schedule properties.
10. On behalf of the defendants, Exhibit. D1 was the trump card, an unregistered partition deed on a stamp paper of value of Rs. 7/- and another registered partition deed Exhibit. D2 which is the same as Exhiblt.P3 [certified copy], Exhibits. D3 to D5 - extracts of demand register, Exhibit. D6 to D16 being RTC extracts, Exhibits. D17 and D18 - copy of the voter list to show that the plaintiff and his wife and children were living separately, Exhibit D19 original of Exhibit. P2 and Exhibit. D20 - certified copy of Exhibit P1, constituted the documentary evidence.
11. On appreciation of the evidence adduced on behalf of the parties, the learned Judge of the trial court was of the view that while the plaintiff had proved his case of being a member of the joint family with the defendants 1 to 4 being other members and plaint schedule properties were joint family properties and therefore the plaintiff was entitled to one-fourth share in the properties, held against the defendants so far as the case that there was a prior partition in the family in the year 1975 and that it had been reduced to writing later in the year 1987 in terms of Exhibit. D1.
12. The learned Judge of the trial court was also of the view that the plaintiff as a consequence is entitled for a declaration that Exhibits. P2 & P3 are not binding on the plaintiff for claiming his one-fourth share in the suit schedule properties.
13. In arriving at such conclusion, the learned Judge of the trial court apart from the oral evidence adduced before the court, was also mainly influenced by the fact that Exhibit. D1 is a partition deed of the year 1987 and not exactly a recording of an earlier oral partition of the year 1975; that being a partition deed of the year 1987 and transferring interest in the immovable property of value of more than Rs. 100/-, it was compulsorily required to be registered and not having been registered, the consequence under Section 49 follows and it cannot be looked into for proving the fact of partition under this document and therefore concluded that the defendants had failed to prove either an earlier oral partition of the year 1975 or partition in terms of Exhibit. D1 and on the other hand accepted the version of the plaintiff and decreed the suit.
14. Aggrieved defendants appealed. Before the lower appellate court, it was contended that the trial court had committed a serious error in accepting the case of the plaintiff and disbelieving the version of the defendants and it was vehemently contended that the trial court has on a total misreading and misunderstanding of the document at Exhibit Dl had refused to admit the document in evidence; that it is a serious error committed by the trial court; that the view taken by the trial court that it was a partition deed was not the correct view; that the document was only a recording or recital of earlier oral partition that had taken place in the family and therefore did not call for any registration and keeping out such an important piece of evidence has affected the Judgment and decree of the trial court which is required to be corrected.
15. The successful plaintiff obviously defended the Judgment and decree and in the light of such contentions, the lower appellate court formulated the following points for its determination.
1. Whether the trial court has erred in having held that the document Ex.D1 is inadmissible in evidence?
2. Whether the trial court has erred in having held that the plaintiff and defendants 1 to 4 are members of joint family and the plaintiff is entitled for partition and separate possession of ¼th share in the suit schedule properties?
3. Whether the Judgment and decree of the trial court are sustainable?
4. To what order?
16. On a re-appreciation of the evidence and taking a view at variance with that of the trial court, the learned Judge of the lower appellate court answered the points 1 and 2 in the affirmative and in favour of the defendants-appellants therein holding that the trial court had committed an error in not only taking the view that the Exhibit. D1 was inadmissible in evidence but also in concluding that the plaintiff and defendants 1 to 4 continued to be the members of the joint family and as such the plaintiff was entitled for one-fourth share in the suit schedule properties. Consequently, the Judgment and decree of the trial court was set aside and the suit dismissed. It is therefore the present second appeal.
17. This Court while admitting this appeal on 10.3.2004 had formulated the following substantial question of law.
Whether the courts below were justified in holding Ex.D1 as not a partition deed and only a document to evidence the prior partition?
18. Sri Krishna Kumar, learned Counsel for the appellant at the stage of making submissions in the course of the hearing of the appeal has submitted that yet another question of law which has been wrongly decided by the lower appellate court arises for examination and has formulated the question as under:
Whether the lower appellate court was justified in holding that Ex.D1, the alleged partition deed dated 15.7.87 is admissible in evidence not only for the reason that it was a document which was required to be registered under the Registration Act and as had been the view taken by the trial court but also for the reason that the document was not admissible in evidence for having not been properly executed on a stamp paper of sufficient value as in terms of Section 2(k)(iii) of the Karnataka Stamp Act, 1957 assuming that it was a palu patti, that was also required to be executed on a stamp paper of commensurate value and in this view of the matter it could not have been exhibited in evidence as per the provisions of Section 34 of the Karnataka Stamp Act, 1957?
and it was the question which was overlooked by the trial court and so also by the lower appellate court and presents itself for examination as the question of law arising from the very facts but by the operation of this provision and requires to be examined in this appeal.
19. It is on such questions, Sri. Krishna Kumar, learned Counsel for the appellant has addressed arguments.
20. Sri Krishna Kumar, learned Counsel for the appellant-plaintiff in the suit, by drawing attention of the court to the contents of Exhibit. D1 submits that the learned Judge of the trial court had rightly appreciated the document to be as partition deed itself and not merely as a recital of an earlier partition; that this document in fact has never indicated that there was a complete partition of the properties belonging to the family in the year 1975 but has vaguely mentioned of sharing of the movables about twelve years earlier, but without a partition of the movables and as it also recites that having regard to the present disputes in respect of the immovable properties, the immovable properties were being divided in terms of the document in presence of the witnesses to avoid any further disputes, it clearly goes to show that the immovable properties mentioned in the document are being partitioned for the first time and not as though there was a partition earlier, that the recitals in the beginning and at the end of the document clearly shows that partition of the immovable properties was for the first time and not that there was a partition earlier leave alone in the year 1975. The relevant portions in Exhibit. D1 reads as under:
21. Sri Krishnakumar submits that a reading of these recitals leaves one with no doubt that it is a partition deed and not merely a recording of an earlier partition; that it is only under this partition deed if at all the immovable properties have been partitioned and for the first time.
22. It is submitted that the learned Judge of the trial court has rightly read this document and has therefore in terms of the provisions of Section 17 of the Registration Act, 1908 [for short the Act], the document having not been registered had applied Section 49 of the Act and had disallowed exhibiting of the document and this approach and line of reasoning has been very wrongly found fault with by the learned Judge of the lower appellate court.
23. It is also submitted that apart from the provisions of Section 49 of the Act preventing the partition coming into play for division as per Exhibit. D1 due to non-registration, when once it is to be taken as a partition deed, the provisions of the Karnataka Stamp Act, 1957 are also attracted, particularly, as the document was on a stamp paper of the value of Rs. 7/- whereas on the valuation of the property that was being divided, the document even if was on a stamp paper was required to be on a stamp paper of much more value as indicated in Article 39 of Schedule-I to the Karnataka Stamp act, 1957 and therefore in the light of the provisions of Section 34 of this Act, the document again becomes inadmissible in evidence unless the deficit duty and penalty had been paid on the document.
24. In this regard, Sri Krishna Kumar, learned Counsel for the appellant, would draw the attention of the court to Section 2(k)(iii) of the Karnataka Stamp Act, 1957, and submits that even if the document should be construed as a mere recitation of an earlier partition, even then it is required to be executed on a stamp paper of commensurate value in terms of Article-39 and that being not the case, assuming for argument sake that it was not a partition deed but only a recital of earlier partition, even then the same being not on a stamp paper of sufficient value, it is again not admissible and submits that in either view of the matter, the document could not have been relied upon by the learned Judge of the lower appellate court to hold that the defendants had proved partition in terms of Exhibit. D1 and to further hold that the partition was of the year 1975 and it was merely recited in the document of the year 1987.
25. It is submitted that this error of law committed by the lower appellate court is required to be corrected in the second appeal.
26. Appearing on behalf of the defendants who are arrayed as respondents in this appeal, Sri Patel G Karegowda, learned Counsel submits that it is not as though the learned Judge of the lower appellate court has committed any error in construing Exhibit. D1 as a recital of an earlier partition; that the exclusion of the evidentiary value of Exhibit. D1 is not because of inaccuracy of the document or any other thing, but due to the technical reason that it is not registered as is done by the trial court and would submit that the requirement of registration is to be met only if the document is construed as a partition deed and not as a recital of an earlier partition that had taken place in the family.
27. Sri Patel D Karegowda, learned Counsel for the respondents by drawing attention to the very document indicates that it is clearly recited about twelve years prior to the execution of Exhibit. D1, there was a division in the family and this recital has found ample support not only from the oral evidence of DW-4 and DW-5, but the document itself having been proved by examining the attesting witnesses and the scribe, there was no reason to discard Exhibit. D1 and if Exhibit. D1 is accepted, it binds the plaintiff and therefore the plaintiff cannot claim a fresh partition in the light of Exhibit. D1.
28. What is submitted is that even the other documentary evidence as per Exhibit. D19 which is the same as Exhibit. P2 also having indicated of an earlier partition in the family, particularly, involving defendants 5 and 6 who are cousin brothers of the first defendant, it should be accepted that on the principle of preponderance of probabilities, the defendants had made out a case for prior partition in the family in the year 1975 and therefore Exhibit. D1 should be considered only as recording of earlier partition of the year 1975 and not as a fresh partition deed. It is accordingly submitted that when once the requirement of registration is not attracted, being not an instrument transferring interest in the immovable property for the first time, the Judgment of the trial court cannot stand and the Judgment of the lower appellate court will have to be upheld.
29. With regard to the question of the document Exhibit. D1 being not on a stamp paper of commensurate value, learned Counsel would submit that the document being not a compulsorily registrable instrument and the defect being only of a deficit stamp paper, curable by paying the deficit stamp duty and penalty, there is no reason to totally discard Exhibit. D1 or the effect of the same and to conclude that the defendants had not proved the partition earlier in the family in the year 1975 and it is therefore submitted that the appeal deserves to be dismissed.
30. The two questions as indicated initially in this Judgment do arise for examination in this appeal. The first question is as to whether the lower appellate court was right in construing the document Exhibit. D1 as a mere recital of an earlier partition and to hold that it is not a partition deed by itself.
31. As has been rightly pointed out by learned Counsel for the appellant and as extracted above from the very document, what one can infer on a reading of the recitals therein is that the division if at all was only in respect of movables and there was no partition of immovables. The learned Judge of the lower appellate court giving importance to the separate living of plaintiff and members of his family as proved by the voter list and other documents does not necessarily lead to the inference that there was a partition in the family. A mere separate living is no proof of partition in the joint family properties. For the convenience of the parties any arrangement could have been worked out and in fact even separate enjoyment of the properties also may be worked out for the sake of convenience and practicalities if the family comprises of large number of properties. In fact, the approach of the learned Judge of the lower appellate court in reciting that admittedly the plaintiff is living separately and therefore it leads to the inference of an earlier partition in the family is almost bordering on perversity. Admission should be of a precise fact and can pin down a person to the very admission and not one which can lead to other inference or that the statement can lead to characterize that as an admission in respect of a different fact. A statement that the plaintiff was residing in a separate house does not necessarily mean to say or necessarily lead to the only inference of the family having been partitioned. It may be there was a partition or it may not. If such is the inference that one can draw from the statement that the plaintiff was living in a separate house, the learned Judge of the lower appellate court construing that as an admission, for holding that it proves the factum of partition is an illogical conclusion and can never be sustained.
32. The approach of the learned Judge of the lower appellate court for the purpose of construing Exhibit. D1 as a recording of oral partition also appears to be inconsistent. The learned Judge has failed to read the entire document as one but has read a recital here and there. That cannot be the way to understand a document. If one looks at the preamble and the concluding part of the document which are extracted above, it is very clear that it was a partition deed, particularly, as the preamble recites there was no partition of immovables and the concluding part indicates that henceforth the immovable properties belonging to the parties are to be enjoyed in accordance with the sharing of the properties indicated in the document and without any further disputes thereafter. One thing indicated in this document is that the immovable properties mentioned in the document are divided amongst the parties to the document. It cannot be said that it has not made any difference to the manner in which the properties are to be enjoyed from the way it was being enjoyed earlier. A recital that the properties were being enjoyed in that manner earlier in terms of partition effected twelve years earlier and it is being continued here afterwards also and it is being reduced to writing for the record sake is conspicuously absent in the document. Only if such a recital is expressly made, it can be taken to be a document which records an earlier partition and not one effecting a partition by itself. That recital is absent and on the other hand the express recital available in the document makes it very clear that it is a partition deed and not recital of an earlier partition of immovable properties.
33. If the document is one transferring any interest in the immovable property of the value of more than Rs. 100/- under the provisions of the Transfer of Property Act, 1882 and under Section 17 of the Registration Act, 1908, registration of the document is inevitable. Non-registration attracts the effect of Section 49 of the Registration Act, 1908 and does not affect any immovable property comprised therein i.e., there is no partition but continues to be remained joint is the effect of Section 49 of the Registration Act, 1908. In fact, in the present case, even the proviso is of no value to the defendants as what is sought to be proved is only partition under Exhibit. D1 and not any collateral purpose. Even assuming for argument sake that the document is not one transferring any interest in the immovable property, in the sense that, not making any difference to the interest of the parties in the properties mentioned in the document which existed even before the document was executed, the provisions of Karnataka Stamp Act, 1957 is nevertheless attracted to a recording of an earlier partition i.e., even to a palu patti as is obvious on a reading of the provisions of Section 2(k)(iii). That again attracts Section 34 of the Karnataka Stamp Act, 1957 and the conclusion of inadmissibility in evidence follows. If the document is inadmissible In evidence, it is of no use to contend that it has been proved by other evidence such as oral evidence.
34. While no oral evidence can be led either to supplement or detract from any document and even under the provisions of the Evidence Act, the documentary evidence excludes oral evidence, the oral evidence is only corroborative of the documentary evidence under Exhibit. D1 and cannot stand independently. If a statutory provision excludes the admissibility of a document and therefore also affects the transfer of interest under the document, such an embargo cannot be got over by leading oral evidence to the contrary.
35. The effect of the provisions of Section 49 of the Registration Act, 1908 and Section 34 of the Karnataka Stamp Act, 1957 is to render illegal an act done contrary to it and such illegality cannot be cured by resorting to any other mode except the very remedial action if any provided under the very statute.
36. In the present case, in respect of the document at Exhibit. D1, the document having not been sought to be sustained by making good the deficit duty and paying the penalty, it cannot be admitted in evidence and therefore it is inevitable that the defendants cannot rely upon Exhibit. D1 for proving their case.
37. The other evidence on record, namely, revenue entries and assessment extracts whether produced by the plaintiff or by the defendants only go to prove the case of the plaintiff, in the sense that, the entries are all in the name of the first defendant - Govindappa who is the head of the joint family of plaintiff and defendants 1 to 4. If so, they support the case of the plaintiff and not that of the defendants. The net result is that the defendants are not left with any supporting material to substantiate the case of a prior partition as amongst the plaintiff and defendants 1 to 3 either in the year 1975 or in the year 1987. If a partition has not taken place assuming that some of the suit schedule properties had been acquired by the efforts made by the first defendant, obviously it enures to the benefit of the family and not by keeping out the plaintiff from claiming a share in that property. It is not as though either a partition or division of immovable property or division in the status of the joint family had been established by the defendants as claimed, but the relationship having been admitted and the evidence on record showing that the property was being dealt with as a joint family property and being handled only by Govindappa - the first defendant, the plaintiff should be taken to have proved they were all being dealt with as though it was a joint family property and not as individual or separate properties.
38. Both the questions of law in this appeal are to be answered in favour of the appellant-plaintiff and as a consequence, the Judgment and decree of the lower appellate court is set aside and the Judgment and decree of the trial court is confirmed.
39. Accordingly, this appeal is allowed. Parties to bear their respective costs throughout.