Karnataka High Court
Sangamesh S/O Durgappa Bhajanthri And ... vs Smt. Renuka W/O Sharnappa Bajantri And ... on 10 June, 2021
Bench: S.G.Pandit, M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JUNE 2021
PRESENT
THE HON'BLE MR.JUSTICE S.G.PANDIT
AND
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
REGULAR FIRST APPEAL NO.200008/2014
Between:
1. Sangmesh S/o Durgappa Bhajanthri
Age 35 Years, Occ: Private Service
R/o Opp. Shankarling Temple, Kumbargalli
Jorapur Peth, Bijapur - 586 101
2. Kumareshwar S/o Yellappa Bhajanthri @ Hunagund
Age 27 Years, Occ: Private Service
R/o Shankarling Temple, Kumbargalli
Jorapurpeth, Bijapur - 586 101
... Appellants
(By Sri Ameet Kumar Deshpande, Advocate)
And:
1. Smt. Renuka W/o Sharnappa Bajantri
@ Smt. Renuka D/o Durgappa Bajantri
Age 52 Years, Occ: Private Service
R/o J.M. Road, Behind Gachin Mahal
Bijapur - 586 101
2. Smt. Savitri W/o Mohan Kattimani
@ Savitri D/o Durgappa Bhajanthri
Age 38 Years, Occ: Private Service
2
R/o Opp. Shankarling Temple
Kumbar galli, Jorapurpet
Bijapur - 586 101
3. Kumari Laxmi D/o Durgappa Bajantri
Age 27 Years, Occ: Household
R/o Opp. Shankarling Temple, Kumbargalli
Jorapurpet, Bijapur - 586 101
4. Yallappa S/o Durgappa @ Hunagund
Age 45 Years, Occ: Police Department
R/o Reg.Q.No.114, Block No.9
Behind Masjid, Police Quarters
Bijapur - 586 101
5. Parashuram S/o Durgappa Bajantri
Age 41 Years, Occ: Education Department
R/o Opp. Shankarling Temple, Kumbargalli
Jorapurpet, Bijapur - 586 101
6. Smt. Yamuna W/o Yashwant Bajantri @
Smt. Yamuna D/o Durgappa Bajantri
Age 31 Years, Occ: Household Work
R/o Opp. Shankarling Temple, Kumbargalli
Jorapurpet, Bijapur - 586 101
... Respondents
(By Sri I.R. Biradar, Advocate
Sri G.G. Chagashetti, Advocate and
Sri S.S. Desai, Advocate for R1 to R3 & R6;
R4 and R5 served)
This Regular First Appeal is filed under Section 96 of
CPC, praying to allow the appeal and set aside the judgment
and decree dated 01.10.2012 passed in O.S.No.206/2011 by
I Additional Senior Civil Judge, Bijapur by dismissing the
suit and decreeing the counter claim of defendant Nos.3 and
4.
3
This appeal having been heard and reserved for
judgment on 03.06.2021, coming on for pronouncement of
Judgment this day, M.G.S.KAMAL, J., delivered the
following:-
JUDGMENT
This appeal under Section 96 of the Code of Civil Procedure is filed by the appellants herein (defendant Nos.3 and 4 before the trial Court) aggrieved by the judgment and decree dated 01.10.2012 passed in O.S.No.206/2011 by the I Additional Senior Civil Judge, Bijapur, by which the suit for partition and separate possession filed by respondent Nos.1 to 3 herein (plaintiff Nos.1 to 3 before the trial Court) came to be decreed and the counter claim of the appellants and respondent No.5 herein (defendant Nos.1 to 4 before the trial Court) was dismissed.
2. The parties hereinafter are referred by their original ranks before the trial Court. 4
3. Facts leading up to filing of the present appeal briefly stated are that, a suit in O.S.No.206/2011 was filed for relief of partition and separate possession in respect of;
(a) property bearing CTS No.769 ward No.1 measuring 92-80 square meters consisting of five rooms on the ground floor, five rooms on the first floor and two rooms on the second floor, situated at Athani Road, Opposite Shankarling Temple, Bijapur; and
(b) property bearing VPC No.913 being a house property having a main door towards east situated at Sudi village, Ron Taluk, Gadag District;
contending inter alia that the aforesaid properties belonged to one Mr.Durgappa S/o Balappa Bajantri. That the said Mr.Durgappa passed away intestate on 03.10.2011. His wife Mrs.Durgavva had predeceased him on 15.11.2007. That plaintiff Nos.1 to 3 and defendant No.5 are the daughters and defendant Nos.1 5 to 3 are the sons of aforesaid Mr.Durgappa and Mrs.Durgavva. That upon the demise of said Mr.Durgappa, plaintiffs and defendants succeeded to the suit properties. That the said Mr.Durgappa had died of blood cancer. He had neither effected any partition of the suit properties nor had executed any document in favour of any person. That the suit properties are joint family properties and are in joint possession of the plaintiffs and defendants. That after the demise of said Mr.Durgappa, upon request made by the plaintiffs for partition, defendant Nos.2 to 4 had responded that they are the absolute owners of property bearing CTS No.769 by virtue of a deed of relinquishment dated 12.08.2011 executed in their favour by Mr.Durgappa and that their names have been entered in the revenue records. That except defendant Nos.2 to 4, no one else had any right, title or interest in the said property. The plaintiffs have asserted that the said Mr.Durgappa was mentally not fit to execute any 6 document due to his serious ailment as such, the said document was concocted and same has no legal sanctity. That as there is no partition, the plaintiffs are jointly entitled to their legitimate 3/7th share in the suit properties.
4. Defendants appeared through their counsel. Defendant Nos.3 and 4 filed written statement contending inter alia that only property available for partition was the house property bearing VPC No.913 of Sudi village. That Mr.Durgappa who was serving in the police department had purchased the property in CTS No.769 under registered sale deed dated 04.12.1992. Mr.Durgappa being the absolute owner in exclusive possession of the said property had executed a document styled as 'Relinquishment Deed' on 12.08.2011 conveying the entire property in CTS No.769 jointly in favour of defendant Nos.2 to 4 and had put them in exclusive possession of the said property. Their 7 names have been entered into the revenue records and since then, defendant Nos.2 to 4 have been in joint possession and enjoyment of the said property even to the knowledge of the plaintiffs. A counter claim was sought on the grounds that plaintiff Nos.2 and 3 are in permissive possession of the portion of the said property and are required to be directed to vacate and hand over the vacant possession of the portions to defendant Nos.2 to 4.
5. Defendant No.5 filed her written statement supporting the case of the plaintiffs and sought for allotment of her 1/7th share in the suit properties.
6. Based on the above pleadings, the trial Court framed the following issues:
1. Whether the plaintiffs prove that suit properties are joint family properties of parties concerned?8
2. Whether plaintiffs are entitled for joint 3/7th share in the suit properties?3. Whether defendant No.3 and 4
prove that item No.1 suit property CTS No.769 is exclusive property of them as mentioned in para-7 of written statement as contended?
4. Whether plaintiffs are entitled for reliefs sought?
5. What order or decree?
Additional Issue dated 31-08-2012:
Whether defendants prove that they are entitled for counter claim mentioned in written statement?
7. Plaintiff No.3 examined herself as P.W.1 and got exhibited documents at Exs.P.1 to P.15. Defendant No.5 examined herself as D.W.1 and no documents were marked on her behalf. Defendant Nos.1 to 4 did not lead any evidence.
9
8. The trial Court after considering the pleadings, evidence and the arguments decreed the suit holding that the suit properties were the joint family properties and the plaintiffs were jointly entitled for 3/7th share and that defendant No.5 was entitled for 1/7th share in the suit schedule properties. The counter claim of defendant Nos.2 to 4 was dismissed. Aggrieved by the aforesaid judgment and decree, defendant Nos.3 and 4 are before this Court by way of this regular first appeal.
9. The learned counsel for the appellants - defendant Nos.3 and 4 submitted that no sufficient opportunity was provided by the trial Court to the appellants either for filing their written statement or to lead their evidence. As such, the impugned judgment and decree is illegal and is against the principles of natural justice. He further submitted that though additional issue was framed on 31.08.2012, no evidence 10 on the said additional issue has been recorded. Instead, the trial Court heard the arguments of the plaintiffs. Without even hearing the defendants, the trial Court erroneously recorded that the arguments of the defendants were heard. Thus, he submitted that the matter requires to be remitted back to the trial Court for fresh disposal.
On merits of the matter, the learned counsel for the appellants - defendants submitted that the trial Court grossly erred in holding that the relinquishment deed dated 12.08.2011 at Ex.P.1 was inadmissible in evidence for want of registration. He submitted that the trial Court ought to have construed Ex.P.1 to be a family arrangement as it was a document recording antecedent rights of defendant Nos.2 to 4 in respect of property bearing CTS No.769 which required no registration. He submitted that in terms of Ex.P.1 defendant Nos.2 to 4 are the absolute owners of the 11 property bearing CTS No.769 and that the plaintiffs and defendant No.5 have no right over the same. In support of his submission, the learned counsel relied upon the following decisions of the Hon'ble Apex Court:
(i). Subraya M.N. v. Vittala M.N. & others reported in AIR 2016 SC 3236.
(ii) Sahu Madho Das and others v. Mukand Ram and another reported in AIR 1955 S.C. 481.
(iii) Kale and others v. Deputy Director of Consolidation and others reported in AIR 1976 SC
807.
Thus, he submits that the judgment and decree passed by the trial Court is liable to be set aside.
10. On the other hand, the learned counsel for the respondents - plaintiffs submits that there is no error or illegality committed by the trial Court in passing the judgment and decree. Sufficient opportunity had been afforded to the appellants. However, the appellants have neither appeared nor 12 shown their bonafides in prosecuting the matter. Ex.P.1 is a document requiring compulsory registeration and not having been registered cannot be relied upon. He places reliance on the judgment of the Hon'ble Apex Court in Yellapu Uma Maheswari and Another v. Buddha Jagadheeswararao and others reported in (2015) 16 SCC 787 .
11. Heard learned counsel for the parties. Perused the records. The following issues arise for our consideration in this appeal:
1. Whether the appellants were provided sufficient opportunity to prosecute and defend their case?
2. Whether the trial Court was justified in discarding relinquishment Ex.P.1 as it was an unregistered document?
3. Whether the trial Court was justified in decreeing the suit and 13 dismissing the counter claim of defendant Nos.1 to 4?
12. From the order sheet of the trial Court it is seen that on 15.12.2011, service of summons on defendant Nos.1 and 3 was held sufficient and placed them ex-parte and notice was reissued to defendant Nos.2, 4 and 5 through RPAD, returnable by 20.01.2012. Later, on the very same date, Vakalath was filed for defendant Nos.1 to 4 and the ex-parte order passed against defendant Nos.1 and 3 was set aside. The matter was thereafter posted on 20.01.2012 for filing of written statement of defendant Nos.1 to 4. The matter was adjourned on five occasions for filing of the written statement of defendant Nos.1 to 4. On 05.04.2012, since 90 days period had elapsed and defendant Nos.1 to 4 had failed to file written statement, the trial Court has taken the written statement of defendant Nos.1 to 4 as not filed and posted the matter for evidence of plaintiffs on 11.04.2012, on which date, 14 defendant Nos.3 and 4 filed written statement and the same was taken on record. Thereafter, the matter was posted on 16.04.2012 for compliance under Section 89 of CPC. Since the parties did not report any settlement, the trial Court framed issues on 22.05.2012. On 23.05.2012, plaintiff No.3 examined as P.W.1 and got exhibited 15 documents as Exs.P.1 to P.15 and the matter was posted for cross-examination of P.W.1 on 31.05.2012. The plaintiffs had filed application seeking permission to file rejoinder which was allowed on 04.06.2012 and the matter was again posted for cross- exanimation of P.W.1 on 05.06.2012. On 05.06.2012, the counsel for defendant Nos.1 to 4 sought time for cross-examination of P.W.1 which was granted and matter was posted on 12.06.2012. On 12.06.2012, the parties and counsel were absent and the matter was again posted for cross-examination of P.W.1 on 19.06.2012. On 19.06.2012, defendant Nos.1 to 4 and their counsel were absent and the trial Court noted that 15 P.W.1 was present, fully examined and the matter was posted on 26.06.2012 for further evidence of plaintiffs, if any. The matter was preponed to 22.06.2012 by defendant No.5, seeking recall of the earlier ex-parte order passed against defendant No.5 and to file written statement. The matter was again posted on 26.06.2012, earlier ex-parte order was recalled and written statement of defendant No.5 was taken on record and thereafter the matter was posted again on 11.07.2012 for filing of rejoinder of defendant Nos.1 to 4 to the counter claim of defendant No.5. On 11.07.2012, defendant Nos.1 to 4 and their counsel remained absent and the matter was posted on 08.08.2012, on which date the rejoinder of defendant Nos.1 to 4 was taken as not filed and the matter was posted for evidence on 05.09.2012. The matter has been preponed from 05.09.2012 to 09.08.2012, on which date, it was submitted that there was no further evidence on behalf of the plaintiffs and accordingly, the matter was posted 16 for defendants' evidence on 23.08.2012. On 23.08.2012, the defendants and the counsel were absent, the matter was posted for defendants' evidence on 27.08.2012. On 27.08.2012, defendant No.5 examined as D.W.1, defendant Nos.1 and 4 and counsel were absent, the matter was posted for cross-examination of D.W.1 on 29.08.2012. Even on 29.08.2012, defendant Nos.1 to 4 and their counsel were absent, D.W.1 was present, fully examined and it was taken as no further evidence of the defendants. The matter was thereafter posted for arguments on 31.08.2012. On 31.08.2012, additional issue was framed, defendant Nos.1 to 4 and their counsel were absent and after hearing the arguments on behalf of the plaintiffs, the matter was adjourned to 01.09.2012 for arguments of defendant No.5 and 1 to 4, if any. Even on 01.09.2012, defendant Nos.1 to 4 and their counsel were absent, no additional evidence was adduced, even after framing of additional issue. Once again the matter was posted for arguments of defendant 17 Nos.1 to 4, if any, on 03.09.2012. Even on 03.09.2012, defendant Nos.1 to 4 and their counsel were absent. The arguments on the side of defendant Nos.1 to 4 was taken as heard and the matter was posted for judgment on 01.10.2012. On 01.10.2012, the judgment was pronounced. Even on the said date, the parties and their counsel were absent.
13. The aforesaid order sheet reveal that written statement of defendant Nos.1 to 4 has been taken on record though filed belatedly. Defendant Nos.1 to 4 have not availed the opportunity to cross-examine P.W.1 despite sufficient opportunity provided by the trial Court. They have remained absent on all most every hearing dates after evidence of P.W.1. There is nothing on record even to suggest that defendant Nos.1 to 4 made any attempt to recall the order closing their cross- examination and closing the stage of their evidence. Thus, under the aforesaid facts and circumstances, it 18 cannot be said that the defendants were not provided with sufficient opportunity to represent and prosecute their case before the trial Court. Merely because the trial Court had posted the matter at a short intervals does not mean that the trial Court had deprived the appellants, any opportunity, particularly, when defendant Nos.1 to 4 and their counsel had remained absent during the dates of hearing. Thus, we hold that the trial Court had afforded sufficient opportunity to defendant Nos.1 to 4. Accordingly, issue No.1 answered in the affirmative.
14. Now we advert to the case of the appellants on merits. It is their specific case that they are the absolute owners of property bearing CTS No.769 by virtue of Ex.P.1 an unregistered relinquishment deed. The certified copy of the said document has been produced and marked by the plaintiffs. The learned counsel for the appellants submits that Ex.P.1 is to be 19 construed as family settlement as it relates to their antecedent rights in respect of the immovable property bearing CTS No.769 and as such, the same did not require registration. the learned counsel placed reliance on the judgment of the Hon'ble Apex Court referred to above In the case of Subraya M.N. v. Vittala M.N. & others reported in AIR 2016 SC 3236, the Hon'ble Apex Court dealing with Panchayat resolution held at paragraph Nos.16 and 17 of the judgment as under:-
"16. Under Section 17 of the Registration Act, the documents which purport or operate to create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees and upwards, are to be registered. Under Section 49 of the Registration Act no document required by Section 17 or by any provision of the Transfer of Property Act to be registered shall be received as evidence of any transaction affecting an immovable property.20
As provided by Section 49 of the Registration Act, any document, which is not registered as required under the law would be inadmissible in evidence and cannot therefore be produced and proved under Section 91 of the Evidence Act."
17. .... There is no provision of law requiring family settlements to be reduced to writing and registered, though when reduced to writing the question of registration may arise. Binding family arrangements dealing with immovable property worth more than rupees hundred can be made orally and when so made, no question of registration arises. If, however, it is reduced to the form of writing with the purpose that the term should be evidenced by it, it required registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of parties."
21
In the case of Sahu Madho Das and others v. Mukand Ram and another reported in AIR 1955 S.C. 481 dealing with the issue involving a family arrangement, at paragraph No.54, the Hon'ble Apex Court has held as under:-
".......... It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is 22 concerned and therefore no conveyance is necessary."
In the case of Kale and others v. Deputy Director of Consolidation and others reported in AIR 1976 SC 807, the Hon'ble Apex Court referring to a family arrangement and reiterating the law laid down in Sahu Madho Das supra held as under:-
"The family arrangement may be even oral in which case no registration is necessary. The registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties 23 and is, therefore, not compulsorily registrable."
15. Thus, relying upon the aforesaid judgments, the learned counsel for the appellants submitted that Ex.P.1 a relinquishment deed requires to be construed as a family settlement of antecedent rights of the parties to the said document. He further submits that the trial Court not having given an opportunity to the appellants to substantiate their stand, had indeed deprived and denied them justice. Hence, the learned counsel insisted for remanding of the matter.
16. The aforesaid arguments of the learned counsel cannot be accepted for the following reasons:-
At the outset the aforesaid judgments of the Hon'ble Apex Court are with regard to the issue relating to family arrangement/settlement in which the parties at lis were claiming rights which had already resided in them. No new rights were either conferred or extinguished in respect of immovable properties therein.24
It was under those circumstances, held that the registration were not compulsory if the family settlement/arrangement was only a record of memorandum of transaction which had taken place at earlier point in time in respect of 'antecedent rights' pertaining to immovable property.
In the instant case, even as admitted by defendant Nos.3 and 4 in their written statement property bearing CTS No.769 was self acquired property of the deceased Mr.Durgappa he having purchased under a registered deed of sale dated 04.12.1992. Therefore, the question of defendant Nos.1 to 3 being sons and defendant No.4 being grandson of Mr.Durgappa having any antecedent rights in the said property does not arise.
Perusal of Ex.P.1 reveal that the same had been purportedly executed by Mr.Durgappa in favour of defendant Nos.2 and 3 his sons and defendant No.4 his grandson being the son of defendant No.1. The said document purports to create right in respect of the immovable property in their favour 'in presenti'. The said document can neither be construed as a family settlement/arrangement nor a memorandum of family arrangement that had already taken place amongst the parties as sought to be made out. Thus, the argument 25 canvassed by the learned counsel for the appellants relying upon the aforesaid judgments of the Hon'ble Apex Court is misconceived and same cannot be accepted.
17. The learned counsel for the respondents relied upon the judgment of the Hon'ble Apex Court in the case of Yellapu Uma Maheswari and Another v. Buddha Jagadheeswararao and others reported in (2015) 16 SCC 787. In the said case the Hon'ble Apex Court dealing with the admissibility of a document namely, a deed of memorandum dated 05.06.1975 held that:
'The admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exts.B- 21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document 26 which is compulsorily regitrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act.
Hence, Exts.B-21 and B-22 are the documents which squarely fall within the ambit of Section 17(1)(b) of the Registration Act and are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties."
18. It is to be noted that all the aforesaid judgments have been rendered by the Hon'ble Apex Court in the light of requirement of Section 17(1) (b) and Section 49 of the Registration Act, 1908. Section 17(1)(b) of the Registration Act, 1908 mandates that any document which has the effect of creating and taking away rights in respect of an immovable property must be registered and Section 49 of the Act imposes bar on the admissibility of an unregistered document. It is useful to refer to Section 91 of the Evidence Act which 27 excludes production and proof of documents requiring compulsory registration and renders such document inadmissible.
19. As regards the arguments of the learned counsel for the appellants with regard to remanding the matter affording an opportunity to the appellants enabling them to substantiate their case of relinquishment deed to be construed as family settlement, we do not find any merits therein. It is settled law that the power of remand should be exercised with greater restrain keeping in mind the early finality of a litigation is the public policy. Further, when all material evidence is available on record sufficient to finally dispose off the matter, remand should not be an option. As already discussed, the aforesaid document being an unregistered document purporting to create rights in respect of the immovable property 'in presenti' is clearly inadmissible in evidence. The certified copy of 28 the said document has however been produced by the plaintiffs - respondents and was marked as Ex.P.1 in their evidence. We may note the mere marking of the document does not amount to proof or admissibility of the same.
20. Thus, even as rightly held by the trial Court in the instant case the appellants have failed to establish their exclusive right over the property bearing CTS No.769. The appellants cannot take shelter under Ex.P.1 under the guise of they having purported antecedent rights. The appellants themselves have admitted that the said property was the self acquired property of Mr.Durgappa. As regards the property bearing VPC No.913, the appellants have admitted in the written statement that the same is joint family property. Thus, there is no controversy requiring any fresh adjudication. The counter claim of the appellants has been rightly declined and rejected by the trial 29 Court. In our considered opinion in the facts and circumstances of the case and the position of law narrated hereinabove and in view of all material available on record no purpose would be served or any benefit would enure to the advantage of the defendants by remanding the matter to the trial Court. It is also not the case of the appellants that they have any other material other than what is already available on record production of which is preeminently required for effective disposal of the case. It is their specific case that Ex.P.1 requires to be construed as family settlement which we have already discussed and negated as above. No fruitful purpose would be served by remanding the matter even if we accept that the appellants require another opportunity in the matter. Hence, we do not deem it necessary to accept the submission for remand of the matter.
30
21. In view of the aforesaid analysis, we are of the considered view that the appellants had been provided with sufficient opportunity by the trial Court. The trial Court was justified in discarding Ex.P.1 and declined to grant counter claim of the appellants. The trial Court was justified in holding that the suit properties to be joint family properties and thereby allotting the shares to the plaintiff and defendant No.5 therein. Hence, the following:
ORDER The appeal is dismissed. The judgment and decree dated 01.10.2012 in O.S.No.206/2011 passed by I Additional Senior Civil Judge, Bijapur is confirmed.
Sd/-
JUDGE Sd/-
JUDGE RSP