Karnataka High Court
Jude S/O George Fernandes vs Martin S/O George Fernandes on 15 February, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 100698 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 100698 OF 2022
(PAR/POS-)
BETWEEN:
JUDE @ JUDGE S/O GEORGE FERNANDES
AGE. 46 YEARS, OCC. TECHNICIAN,
R/O. NEAR FOREST NAKA,
BAAD, BHANDISHITTA, POST-SHEJWADA,
KARWAR-581301.
...APPELLANT
(BY SRI.MAQBOOL PATIL, ADV. FOR SRI.K L PATIL, ADV.)
AND:
1. MARTIN S/O GEORGE FERNANDES
AGE. 48 YEARS, OCC. TECHNICIAN,
R/O. NEAR FOREST NAKA,
BAAD, BHANDISHITTA, POST- SHEJWADA,
KARWAR-581301.
2. ROMAN D/O. GEORGE FERNANDES
W/O. TITUS LEWIS,
AGE. 58 YEARS, OCC. TEACHER,
R/O. NEAR KODIBEER TEMPLE,
KARWAR-581301.
3. REEZA D/O. GEORGE FERNANDES
W/O. FREDDY FURTARDO,
AGE. 55 YEARS, OCC. TEACHER,
R/O. ARCHANA PLAZA, KENCHA ROAD,
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RSA No. 100698 of 2022
KARWAR-581301.
...RESPONDENTS
THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 23.11.2021 PASSED IN
R.A.NO.10/2021 ON THE FILE OF THE I ADDITIONAL DISTRICT
AND SESSIONS JUDGE, UTTARA KANNADA, KARWAR,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 07.06.2021, PASSED IN O.S. NO.21/2014
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE,
KARWAR, PARTLY DECREEING THE SUIT FILED FOR
PARTITION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Present appeal is filed by the appellant/defendant No.1, aggrieved by the judgment and order dated 23.11.2021 passed in R.A.No.10/2021 on the file of the II Addl.District and Sessions Judge, Karwar (hereinafter referred to as 'the First Appellate Court'), in and by which the First Appellate Court while dismissing the appeal filed by the appellant/defendant No.1, confirming the judgment and decree dated 07.06.2021 passed in O.S.No.21/2014 on the file of the Principal Senior Civil Judge, Karwar (hereinafter referred to as 'the Trial Court'), by which the Trial Court decreed the suit allotting 1/4th share to each to the plaintiff and defendants No.1 to 3. -3- RSA No. 100698 of 2022
2. The above suit in O.S.No.21/2014 is filed by the plaintiff seeking relief of partition and separate possession of ½ share in suit schedule property bearing Sy.No.1270 measuring 2 guntas 3 annas out of 17 guntas and a house property bearing CMC No.3061 situated in Baad-II village, Karwar. It is the case of the plaintiff that one George Martin Fernandes and Martha George Fernandes are the father and mother of plaintiff and defendants. That the said George Martin Fernandes passed away on 22.08.1992 and Martha George Fernandes passed away on 18.08.1998. That during his lifetime of said George Martin Fernandes, was in possession of the suit property which was granted by Land Tribunal, Karwar in his favour and revenue records were mutated in his name. That he had constructed residential house thereon. That upon the demise of said George Martin Fernandes, name of Smt.Martha George Fernandes was mutated and after her demise, name of plaintiff and defendants ought to have been mutated in the revenue records but defendant No.1 obtained mutation of his name. It is contended by the plaintiff that he and defendant No.1 are in joint possession and enjoyment of suit property. It is further contended that the house existing on the suit property -4- RSA No. 100698 of 2022 consisting of ground floor and first floor. The ground floor was constructed by father of plaintiff and defendants and first floor has been constructed by plaintiff from his own funds by incurring expenditure of an amount of Rs.4,50,000/- in the year 2005 and plaintiff has been residing along with his wife and children in the first floor premises. That defendants 2 and 3 being the sisters are married and that have voluntarily given up their share in the suit property, as such, plaintiff and defendant No.1 are entitled for ½ share each in the suit property.
3. Defendant No.1 appeared and filed written statement, denying the plaint averment. It is the contention of the defendant No.1 that after the demise of his parents, there was a family settlement, in which the plaintiff and defendants 2 and 3 had relinquished their right, title and interest in the suit property, thereby he became absolute owner of the entire suit property and that since the plaintiff did not have a place to reside, on humanitarian ground, he allowed the plaintiff to stay and that there was a statement made by the plaintiff before the revenue authority as such he became the owner to the entire extent of suit property and hence sought for dismissal of the suit.
-5-RSA No. 100698 of 2022
4. Defendant Nos.2 and 3 filed their common written statement admitting their relationship with plaintiff and defendant No.1 and also acquisition of suit schedule property by their father. Denying the case of the plaintiff and defendant No.1, they also claimed their entitlement in the property.
5. Based on the pleadings, the trial Court framed the following issues for its consideration:
"1. Whether the plaintiff proves that he has ½ share in the suit schedule property?
2. Whether the plaintiff proves that defendant No.2 and 3 have given up their shares in the suit schedule property?
3. Whether the plaintiff is entitled to partition and separate possession of his share?
4. What order or decree?"
6. The plaintiff examined himself as PW1 and exhibited 7 documents marked as Exs.P1 to P7 while defendant No.1 examined himself as DW1 and exhibited 41 documents marked as Exs.D1 to D41.
7. On appreciation of evidence, the Trial Court answered issue Nos.1 and 3 in partly affirmative and issue No.3 in the negative and consequently allowed the suit holding that the plaintiff and defendant No.1 to 3 are entitled for 1/4th share -6- RSA No. 100698 of 2022 each in the suit property. Being aggrieved by the said judgment and decree, defendant No.1 filed a regular appeal in R.A.No.10/2021. Considering the grounds urged in the memorandum of appeal, the First Appellate Court framed the following points for its consideration:
"1. Whether the appellant/defendant No.1 have made out sufficient reason to interfere with the judgment and decree passed by the Trial Court?
2. What order?"
8. On re-appreciation of evidence, the First Appellate Court answered point No.1 in the negative and consequently dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same, the defendants are before this Court.
9. Learned counsel for the appellant reiterating the grounds urged in the memorandum of appeal submits that the Trial Court and the First Appellate Court failed to appreciate that the plaintiff and defendants No.2 and 3 had relinquished their share, right, title and interest in a family settlement in favour of defendant No.1 and also filed a settlement at Ex.D41- which is the varadi given by plaintiff before the revenue authority of he having given up his right in fovour of defendant -7- RSA No. 100698 of 2022 No.1 over the suit property. He submits that there was even a report of the commissioner with regard to the signature verification and the Trial Court and the First Appellate Corut despite having found the signature of the plaintiff on his vakalath as well as on Ex.D41 to be similar, declined to accept the said document to uphold the contention of the defendant No.1 that he has become the absolute owner of the entire suit property by virtue of relinquishment and hence, substantial question of law would arise in the matter requiring consideration.
10. Heard. Perused the records.
11. It is not in dispute that the suit schedule property was the absolute property of George Martin Fernandes. It is also not in dispute that plaintiff and defendants are children of the said George Martin Fernandes and his wife Martha George Fernandes. It is also not in dispute that both George Martin Fernandes and Martha George Fernandes have passed away leaving behind the plaintiff and defendants as their sole legal heirs. As such, plaintiff, defendants 1 to 3 are entitled for 1/4th equal share in the suit property. It is contended by the plaintiff that daughters namely defendants No.2 and 3 had given up -8- RSA No. 100698 of 2022 their share, right, title and interest in favour of plaintiff and defendant No.1 and as such, they are entitled for ½ share in the suit property but the plaintiff has not produced any iota of evidence with regard to the said claim. The said contention of the plaintiff has been negated in the trial Court and the First Appellate Court. Defendant No.1 on the other hand has specifically contended that on the demise of their parents, there was family settlement, in which plaintiff as well as defendants No.2 and 3 had relinquished their share, right, title and interest in his favour, thereby he became the over of the suit property. Defendant No.1 has also not produced any legally acceptable evidence in this regard.
12. The Trial Court and the First Appellate Court have taken note of the fact that relinquishment of right in respect of an immovable property value of which more than Rs.100/- warrants compulsory registration under Section 17 of the Indian Registration Act. The plaintiff and the defendant No.1 being the children of said George Martin Fernandes and being entitled for 1/4th share each, plaintiff cannot claim that defendants No.2 and 3 had orally relinquished their shares in favour of defendant No.1 and plaintiff in the absence of -9- RSA No. 100698 of 2022 registered deed of conveyance in the manner known to law. Similarly, defendant No.1 cannot claim that plaintiff and defendant Nos.2 and 3 relinquished their share, right, title and interest in his favour. A statement made before revenue authority, though disputed by the plaintiff, would not create or extinguish right, title and interest in an immovable property value of which more than Rs.100/-, without registration as required under law.
13. In that view of the matter, no illegality or irregularity can be found in the finding and conclusion of the First Appellate Court and the Trial Court. No substantial question of law arises for consideration. Appeal is dismissed confirming the order passed by the First Appellate Court and the Trial Court.
sd JUDGE KGK List No.: 1 Sl No.: 22