Karnataka High Court
Gajanan S/O Laxminarayan Bhat vs Dattatray S/O Subray Hegde on 1 December, 2010
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 1st DAY OF DECEMBER 2010
BEFORE
THE HON'BLE MR.JUSTICE A.S.PACHHAPURE
REGULAR FIRST APPEAL NO.178/200i (PAR)
BETWEEN:
1. Gajanan, 5/ Laxminarayan Bhat
Aged about 44 years, 0cc: Agriculture
R/at Gadigeholay, in Agasal Grama
Sirsi Taluk, Uttara Kannada Dist.
2. Nagapati, S/o. Laxrninarayan Bhat
Aged about 38 years, 0cc: Agriculture
R/at Gadigeholay, in Agasal Grama
Sirsi Taluk, Uttara Kannada Dist.
APPELLANTS
(By Sri. S. S. Bawakhan, Adv.)
AND:
1. Dattatray, S/o. Subray Hegde
Aged 59 years, 0cc: Service
Amod Housing Co-operative Society
Ashraya Colony Road
Burivilli, West Bombay
2. Arundati kom Vishweshwar Hegde
Age: 49 years, 0cc: Household
R/o. Devikeri Road, Sirsi
3. Vishwanath, S/o. Vishweshwar Hegde
Age: 49 years, 0cc: Contractor
R/o. Devikeri Road, Sirsi
4. Ramanath, Sb. Vishweshwar Hegde
Age: 45 years, 0cc: Agriculture
R/o. Balegadde, village Balegadde
Taluk: Sirsi
5. Ranganath, Sb. Vishweshwar Hegde
Age: 40 years, Chief Accountant
Kavasmanica Chemical Private Ltd.,
72-B, Khoja Building-3, Bombay
6. Anusaya kom Vishweshwar Hegde
Age: 67 years, Household
R/o. Danandi, Shivalli
Since deceased by LRs
6a. Subray Vishweshwar Hegde
Age: 55 years, 0cc: Agriculture
6b. Dattatraya Vishweshwar Hegde
Age: 52 years, 0cc: Agriculture
6c. Vinayak Vishweshwar Hegde
Age: 39 years, 0cc: Agriculture
a to c are residents of
Danandi, P0: Boppanalli (Isloor)
6d. Ramachandra Vishweshwar Hegde
Age: 39 years, 0cc: Agriculture
R/o. Unchalli, Banawasi Road
Tq: Sirsi, Dist. U.K.
3
6e. Radha W/o. Manjunath Bhat
Age: 58 years, 0cc: Household
R/o. Almane,P0: Kangod
Tq. Sirsi, Dist. U.K.
6f. Leelavati W/o. Venkatesubba Hegde
Age: 50 years, 0cc: Household
R/o. Ainkai, P0: Kyadagi
Tq: Siddapur, Dist. U.K.
7. Vishalaxi kom Mahadeve Hegde
Age: 63 years, 0cc: Household
R/o. Harehulekal village of
Kashishinamane
8. Radha kom Krishna Hegde
Age: 60 years, 0cc: Household
R/o. Soraba Taluka, Harish
Village, Harishe.
Since deceased rep. by LRs.
8a. Chidambar Krishna Hegde
Age: 46 years, 0cc: Agriculture
8b. Baichandra Krishna Hegde
Age: 35 years, 0cc: Agriculture
a & b are residents of Harishi
Tal: Sorab, Dist. Shimoga
8c. Chandrakala W/o. Bhaskar Hegde
Age: 48 years, 0cc: Household
R/o. Shigehalli, P.O. Panchalinga
Tq. Sirsi, Dist. U.K.
4
8d. Jayalasmi W/o. Ganapathi Hegde
Age: 44 years, 0cc: Household
R/o. Kanchikai, P0: Kodsar
Tq. Siddapur, Dist. U.K.
8e. Veena W/o. Suresh Shastri
Age: 42 years, 0cc: Household
R/o. l3anavasi, Tq: Sirsi, Dist. U.K.
9. Mahadevi kom Prafuichandra Hegde
Age: 53 years, 0cc: Household
R/o. Chouki math
10. Umesh, SI Laxminarayan Bhat
Age: 37 years, R/o. Agasal gram
Gadigehole
11. Laxminarayan S/o. Subba Bhat
Age: Major, 0cc: Agriculture
R/o. Gadigehole, Taluk: Sirsi
12. Sharada kom Seetaram Hegde
Age: Major, R/o. Vinayaka colony
Sirsi.
13. Ratna kom Subray Hegde, Joshi
Age: Major, R/o. Yelugar
Taluk: Siddapur.
RESPONDENTS
(By Sri. Hegde Neeralagi, Adv. for C/Ri
Sri. V. G. Bhat, Adv. for R4
Sri. Ravi G. Sabhahit, Adv. for R5
R2, R3, R9, R12 & Ri3 Notice D/w
--
R6(a) to R6(f), R8(a) to R8(e), R9, RiO and Ri 1 - served>
THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DT.16.11.2000
PASSED IN O.S.NO.94/97 BY THE CIVIL JUDGE, SR.DN.
SIRSI, DISMISSING THE SUIT FOR PARTITION AND
SEPARATE POSSESSION.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
The appellants have filed this appeal challenging the judgment and decree of the Court below dismissing the suit for partition and separate possession of the suit properties.
2. The facts relevant for the purpose of this appeal are as under:
I will refer to the parties as per their rank before the trail Court for the purpose of convenience.
The appellants are the plaintiffs and the respondents herein are the defendants. The propositus of the family was one Narayan Hegde, who had five sons, 1. 6 Parameshwara, 2. Subbaraya, 3. Ganapathi, 4. Krishna and 5. Seetharam. There was a registered partition amongst the brothers of the propositus on 14.03.1959. The parties to this suit are the legal representatives of Subbaraya, the 2nd son of Narayan Hegde and the said Subbaraya died on 05.11.1969 leaving behind three sons,
1. Vishweshwara, 2. Dattatreya (defendant No.1) and 3.
Ganapathi (died on 16.06.1972) and five daughters i.e., 1. Ansuya (defendant No.6), 2. Vishalakshmi (Defendant No.7), 3. Kamala (died on 10.08.93), 4. Ratna (defendant No.13) and 5. Mahadevi (defendant No.9). Vishweshwara, the eldest son of Subbaraya died in the year 1994 leaving behind his second wife Arundati (defendant No.2), three sons i.e., 1. Vishwanath (defendant No.3), 2. Ramanath (defendant No.4), 3. Ranganath (defendant No.5) and two daughters, 1. Sharada (defendant No.12) and Ratna (defendant No.13). Amongst the daughters of Subbaraya, Kamala, the mother of plaintiffs died on 10.08.1993 leaving behind her husband Lakshmi Narayan who is 7 defendant No.11 and three Sons i.e., plaintiffs No.1 and 2 and defendant No.10. This relationship between the parties is not in dispute.
The plaintiffs claim that the suit properties enumerated in schedule-A para 1 are the agricultural lands and schedule-B are the house properties and the movables have been referred to in schedule-C(ka). The plaintiffs who are the grandsons of Subbaraya Hegde through his daughter Kamala have claimed that the suit properties are either ancestral properties and joint family properties acquired from the income of the ancestral properties and also tenanted lands, the occupancy rights of which were granted in the name of the 1 St defendant and that their mother had a share in these properties and on her death it devolves upon them. It is relevant to mention here that Subbaraya had his wife Nagaveni, who also died in the year 1973.
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3. These being the facts relating to the properties and relationship of the parties, the plaintiffs came to know that the defendants who are the sons, daughters and grand children are manipulating and creating false documents showing the division of property and gifting the properties etc., apprehended that the act of the defendants was to defeat the share of the plaintiffs. It is under these circumstances, that the plaintiffs requested the defendants to effect the division in the joint family properties and to grant their share in accordance with law by demarcating the boundaries of their shares.
4. The defendants No.1, 2, 4, 5 and 9 have filed the written statement and amongst them, defendant No.9 has supported the claim of the plaintiffs, whereas the other defendants have denied the averments made in the plaint. It is the contention of the defendants No.1, 2, 4 and 5 that after the partition amongst the brothers of Subbaraya in the year 1959, Subbaraya, the grand father of the plaintiffs 9 and father of the 1St defendant said to have effected the division in the suit properties granting the share to his sons. His third son Ganapati died on 16.06.1972 and it is thereafter that his share in the property was gifted to his mother Nagaveni, wife of Subbaraya under a registered gift deed. It is also the contention of the said defendants that Subbaraya before his death executed a Will and it was registered by bequeathing all his interest in the properties in favour of his sons i.e., 1. Vishveshwara, 2. Dattatreya (defendant No.1) and Ganapathi (who died on 16.06.1972). Furthermore, it is the contention of the defendants that the mutation entries were effected in the records of rights in pursuance of the Will executed by Subbaraya, in pursuance of the gift by Nagaveni and also on the basis of partition between the father and the sons. They claimed that when Subbaraya bequeathed his interest in the suit properties, his daughter Kamala or any other daughters are not entitled to any share as his interest in the suit properties was bequeathed to the sons under the I 10 registered Will. Furthermore, it is their contention that Nagaveni, to whom the property of the deceased Ganapathi was given, had gifted the said properties to the sons of Vishweshwara and in the circumstances as Nagaveni did not leave any other interest of her in the suit properties, the question of claiming the share by the plaintiffs does not arise.
Furthermore, it is also claimed by the 1st defendant that there are subsequent acquisitions of the lands and they are not the joint family properties and even the lands which were tenanted and occupancy rights were granted exclusively belong to him and that the plaintiffs have no share in the said properties as well. So far as movables properties are concerned, they have denied their existence. On these grounds, they have sought for dismissal of the suit.
5. On the basis of these pleadings, the trial Court had framed the following issues.
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Whether the plaintiffs prove that the suit properties are joint family properties and they were in the joint possession of the same with defendants?
Whether 1st defendant proves that there was a partition on 20.02.1959 between the sons of Narayan Hegde?
iii. Whether the Jst defendant proves that there was again partition took place in the branch of Subray Hegde on 14.3.1959 and the shares were enjoyed the properties separately?
iv. Whether the 1st defendant proves that Subray
Hegde had executed registered will on
27.3.1968 bequeathing all his properties in favour of his sons?
v. Whether the 1st defendant proves that the sons of Subray Hegde again after his death got the properties of Subray Hegde partitioned amongst them on 13.05.1970? vi. Whether the 1st defendant proves that Smt. Nagaveni W/o. late Subray Hegde had gifted her entire properties under a registered Gift 12 deed dated 5.7.1972 in favour of 1st defendant?
vii. Whether the defendant No.1 proves that the area measuring 0.6.0, 0.20.0, 1.9.0, 1.36.0, 1.9.0, 0.12.10, 0.13.3 in Sl.Nos.1, 2, 3, 6, 7, 8 and 9 of 'A' schedule properties respectively and some portion of house described in 'B' schedule have come to share under the documents referred to in his W.S.?
viii. Whether the 1st defendant proves that the suit Sl.Nos.2, 3 & 6 and A schedule properties are his self acquired properties?
ix. Whether the defendant No.4 proves that the
1st defendant and 3rd defendant got the
properties of deceased Ganapathi partitioned on 31.1.1973?
x. Whether the defendant No.4 proves that there was partition between Vishweshwara the first son of Subray hegde and children defendants No.3 to 5 got their properties partition by registered partition dated 4.8.1974?
xi. Whether defendant No.4 proves that the III defendant had taken his share of properties I,
1.) from him and defendant No.5 under registered partition deed dated 19.12.1977? xii. Whether the defendant No.4 proves that himself and 5th defendant got the properties partitioned by a registered partition deed dated 16.6.1992?
xiii. Whether the suit of plaintiffs is maintainable without the relief of cancellation of registered deeds referred to in the W. S.?
xiv. Whether the suit is bad for non-joinder of necessary parties?
xv. Whether the 4th defendant proves that the suit ofplaintiffs is barred by time?
xvi. Whether the 4th respondent/defendant proves that the suit of plaintiff not maintainable without including certain properties sold after the alleged partition?
xvii. Whether the plaintiffs are entitled to partition of their share in the properties? If so, what is the share in the plaintiffs?
xviii. Whether the plaintiffs are entitled to mesne profits?
14xix. Whether the plaintffs are entitled to decree prayed for?
xx. What decree or order?
6. It is thereafter that the plaintiff No.1 was
examined as PW1. Later a witness was examined as PW2 and in their evidence the documents at Ex.P1 to P39 have been marked. The defendant No.1 was examined as DW1, the defendant No.4 was examined as DW5 and other witnesses as DWs 2 to 4. In their evidence the documents at Ex.D1 to D52 have been marked.
7. The trial Court after hearing the counsel for the parties and on appreciation of the material on record held that Subbaraya had bequeathed his interest in the suit properties and after the death of Ganapati, his share was gifted by his mother Nagaveni by way of registered gift deed and further there was a partition amongst his sons and in the circumstances as per the existing law, neither Subbaraya nor his wife Nagaveni have left any interest in 15 the suit properties and therefore, it came to the conclusion that the plaintiffs are not entitled to any share. Thereby it dismissed the suit of the plaintiffs and aggrieved by the judgment and decree, the present appeal has been filed.
8. I have heard the learned Counsel for the appellant and also the respondents.
9. The points that arise for my consideration are:
i. Whether it is proved that there was a
partition between the brothers of the
Subbaraya, the sons of the propositus
Narayana Hegde in the year 1959?
ii. Whether the father of the 1st defendant
Subbaraya executed a Will Ex.D1 5
bequeathing his interest in the family
properties in favour of three sons?
iii. Whether the partition amongst the three sons of Subbaraya immediately after the death of Ganapathi is nominal and was only for the purpose of avoiding taxes and it has not been acted upon by the parties?
16iv, Whether it is proved that Nagaveni, wife of Subbaraya gifted her interest in the property under a registered gift deed in favour of defendants No.3 to 5?
v. Whether the plaintiffs are entitled to any share in the suit properties?
vi. Whether the appellants have made out any grounds to call for interference in the judgment and decree of the Court below?
10. It is the contention of the learned Counsel for the appellants that the defendants have not proved the Will, the gift deed said to have been executed by Nagaveni, wife of Subbaraya, the partition amongst the sons of Subbaraya, and the subsequent acquisitions as their self acquisitions. It is his contention that these documents were created and mutation entries were effected in the records of revenue authorities with an intention to defeat the claim of the plaintiffs and that there were no bonafides on the part of the defendants in doing such acts. So also it 17 is his contention that when the Will, the gift deed and the partition are unbelievable and are false and fictitious documents, they cannot be relied upon and in the circumstances, the plaintiffs are entitled to the share which would devolve on their mother Kamala, the daughter of Subbaraya. Therefore, it is his submission that the trial Court committed an error and illegality in accepting the Will at Ex.D15, the partition deed at Ex.D3 and the gift deed as per Ex.D2. Hence he submits that the appellants have good grounds to succeed in these appeals and prayed for decree of partition by setting aside the dismissal of the suit.
11. Per contra, the learned Counsel for the respondents submits that the Will executed by Subbaraya, the father of the 1st defendant is legal and valid and the gift deed has been proved satisfactorily and the partition effected by the parties is bonafide and further that there was a partition amongst the sons of Subbaraya before the 18 trial Court and in the circumstances, he submits that the trial court was justified in dismissing the suit.
The learned counsel would further submit that the appellants have not made out any grounds to call for interference in the judgment and decree of the Court below and thereby they sought for dismissal of the appeal.
12. I have meticulously scrutinized the evidence, the important and relevant documents. Though the contention was raised that there was no partition in the year 1959, the defendants have produced the original partition deed amongst the brothers of Subbaraya and the question of partition amongst them has not been disputed before this Court. The important aspects in controversy are with regard to the execution of Will, the gift deed executed by Nagaveni in favour of her grand sons and the partition amongst the sons of the Subbaraya. The learned Counsel for the appellants would contend that the Will has not been proved satisfactorily and that there are suspicious 19 circumstances in the execution of the Will and that it is a false and fictitious document. So far as the proof of Will is concerned, the defendant No.1, who was examined as DW1 has stated about the execution of the Will by his father and furthermore, they have also examined DW3, an attesting witness to the said Will.
13. Now, perusal of the evidence of DW3 reveals that in the year 1968, Subbaraya had executed the Will bequeathing the properties in favour of his three sons and that the Will was written in the office of Narayan Bhat and that he was all along intimating him that as he is not well, it is necessary to execute the Will at an earliest. So on the date of the execution of the Will, DW3 and PW2 were called by Subbaraya Hegde at the time of execution of the document and DW3 states that as per the instructions of Subbaraya, the Will was written and at that time himself and PW2 were present. He also states that instructions for writing the 20 Will were given by Subbaraya and after the preparation of the Will, it was read over to the witnesses and also the Executor of the Will and thereafter Subbaraya signed the same and that to prove the contents of the Will, it is necessary for defendants at least to examine one attesting witness and accordingly, DW3 has been examined, who speaks about the execution of the Will and the proof of its contents. The other attesting witness has been examined by the plaintiffs as PW2, he admits the signature at Ex.D15(c), on the Will executed by Subbaraya and that this signature was made by him about 30-40 years back. The signature of Subbaraya is at Ex.D15(a), whereas the attesting witnesses had put their signatures at Exs.D15(b) and (c).
14. Now perusal of the cross-examination of PW2 who is the 2nd attesting witness to the Will, it reveals that DW3, the attesting witness examined by defendants is a reputed person in the village and that he is frank and fair 21 and in his opinion DW3 is a good person who could be trusted. He cannot remember the other persons who signed the Will at the time when he put the signature to Ex.D15. He admits that as he is a businessman, unless he reads the documents, he will not put the signature and if he repossess full confidence, he may sign even without looking into the contents. He also admits that he has signed Ex.D15 after confirming that the contents are true. He also states that in case if the document were fraudulent, he would not have put the signature. Though he states that the signature was taken in his shop, taking into consideration the cross-examination it appears that this witness has been won over by the plaintiffs. A perusal of his cross-examination reveals the material to corroborate the version of the defendants with regard to the execution of the Will Ex.D15.
15. The counsel for the respondents has placed reliance on the decision of the Apex Court reported in AIR 22 2002 SC 317 (S. Sundaresa Pai and others vs. Mrs.Sumangala T. Pai and another). The Apex Court taking into consideration the circumstances therein held that 'the uneven distribution of assets amongst children, by itself cannot be taken as a circumstance causing suspicion surrounding the execution of the Will". The Will in the said case was executed without giving any property to the widow daughter and it was held that it is not unnatural. So far as the due execution is concerned, the defendants have examined DW3 who has spoken about the execution of the Will and also attestation and so also PW2 has corroborated the version about the execution and subsequently the said Will came to be registered by Subbaraya in the office of the Sub-Registrar. The Will was executed on 27.03.1968 and it was registered on 24.04.1968 i.e., after about 27 days of the execution of the Will and in pursuance of this Will, mutation entry was effected in the records of the family members. When a Will is registered, it gives further strength to the due execution 23 and it is relevant to note that Subbaraya, after the execution of the Will died on 05.11.1969 i.e., after about 1½ years of the execution and registration of the Will.
16. From these facts and circumstances, it could be inferred that Subbaraya was in a sound disposing state of mind, he had the capacity to execute the Will and this fact has been spoken to by DW3 and PW2 (to some extent) and therefore, I do not find that there is any such material in the cross-examination of DW1 and DW3 and the evidence of PW2 to disbelieve the execution of the Will by Subbaraya.
17. It is no doubt true that Subbaraya did not make any provision for the daughters and therefore it is contended that it is a suspicion circumstance as the natural daughters of Subbaraya were not given any share in the properties or there was no provision made for them. It is relevant to note that the daughters were entitled to the share for the first time after the commencement of Hindu 24 Succession Act 1956. During those days the society was not in favour of giving share to the daughters as the marriage expenses were looked after by the parents and so also some dowry was being given in token of their share in the family properties. This mental set up of the persons continued for a long time and it is only in the recent days that the daughters are approaching the Court seeking share in the properties of their parents. So the mere fact that Subbaraya did not make any provision for the daughters, in my opinion is not a suspicious circumstance at all. It is not that Subbarayahas given some properties to other daughters except the mother of the plaintiffs. He has not given any share to any of the daughters and therefore it strengthens the version of the defendants with regard to due execution and proof of the contents of the Will.
18. Furthermore, after the death of Subbaraya, a report was submitted to the revenue authorities to effect 25 the entry of the names of the beneficiaries in the records of the family properties. The defendants have produced Ex.D38, the certified extract of the mutation entry No.571 and it reveals that after the report, the notices were issued to the interested persons, no objections were received and in the circumstances it is on 03.04. 1971 that the entry has been certified. So on the basis of this entry, it could be said that the Will which was executed by Subbaraya was acted upon and the parties approached the revenue authorities to effect the mutation entry and in the circumstances I do not find any doubt with regard to its due execution and proof of the Will.
19. When once the Will is proved, it is necessary to note that a daughter is not entitled to any interest in the coparcenary property on the demise of her father. As could be seen from the provisions of Section 6 of the Hindu Succession Act, 1956 before its amendment, it reads as:
"6. Devolution of interest in coparcenary property - When a male Hindu dies after the 26 commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivors hip upon the surviving members of the coparcenary and not in accordance with this Act:"
The provisions of Section 8 apply to intestate succession. But as there was a Will, the coparcenary property would devolve by testamentary succession. Therefore, the plaintiffs cannot seek any share of their mother as that interest has been bequeathed by Subbaraya in favour of his sons.
20. Apart from this, it is relevant to note that Subbaraya died in the year 1969 and the daughter Kamala, the mother of the plaintiffs was born prior to 1956. It is relevant to note that a daughters in those days after the commencement of the Hindu Succession Act were entitled to the share only after the death of their father and it was not their birth right just like sons. It is for the first time that under the provisions of Hindu Succession Act, a 27 share was allotted to the daughter in the coparcenary interest of her father and that principle applies only to those daughters who were born subsequent to commencement of Hindu Succession Act 1956 and as the mother of the plaintiff was born much earlier to the commencement of the Act, she had no pre-existing right in the property and in such circumstance as well, she cannot claim any interest on the death of her father Subbaraya.
21. The learned Counsel for the appellants has challenged the gift deed executed by Nagaveni, wife of Subbaraya in favour of her grand sons and the certified copy of the gift deed has been produced by the defendants at Ex.D2. It is relevant to note that after the death of Subbaraya, the persons in the family were Nagaveni, wife of Subbaraya and three sons Vishweshwara who died in the year 1994, Dattatreya (defendant No.1) and Ganapati who died on 16.06.1972. After the death of Ganapati, his interest in the properties devolved upon his mother who 28 was the only class-I heir and as Ganapathi had 1 / 3rd share in the suit properties, his mother inherited the same on the death of her son Ganapathi. So the undivided interest of Ganapati devolves on Nagaveni after the death of Ganapathi and it was gifted by her under the Gift deed dated 05.07.1972. The certified copy of gift deed has been produced at Ex.D2. Though the defence witnesses have spoken to the execution of the gift and the defendants have examined DW2, an attesting witness to the gift deed. The learned Counsel for the appellants would contend that the certified copy of the gift deed is not admissible in law as the defendants have not produced the original gift deed and therefore, it cannot be accepted as secondary evidence.
22. So far as the acceptance of the secondary evidence is concerned, the provisions of Section 65 of the Indian Evidence Act, 1872 reads as under:
"Section 65 -- Cases in which secondary
evidence relating to documents may be given --
Secondary evidence may be given of the
29
existence, condition, or contents of a document in the following cases --
a. When the original is shown or appears to be in the possession or power of the person against
--
whom the document is sought to be proved, or of any person out of reach of or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;
b. When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
c. When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
d. When the original is of such a nature as not to be easily movable;
e. When the original is a public document within the meaning of Section 74;
f When the original is a document of which a certified copy is permitted by this Act, or by any 30 other law in force in India to be given in evidence;
g. When the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the evidence of the contents of the document is admissible, In case (b), the written admission is admissible, in case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."
23. To prove the acceptance of the certified copy as secondary evidence, when the original is not available, it is the version of the defendants that the said document was produced in suit bearing O.S.No.97/ 1972 and the said suit was compromised and it came to be dismissed as settled out of Court and the suit was i a+ instituted by Vishwanatha, S / o. Vishwe shwara against D attatreya, 1St 31 defendant. The 1st defendant states in his evidence that the original gift deed was produced in the said suit and as he forgotten to get the return of the original deed, ultimately the records came to be destroyed by the Court and in the circumstances, he was unable to produce the original gift deed. The learned Counsel for the appellants would contend that there is no material placed on record to show that original gift deed was produced in the suit and even if it is produced, the defendant No.1 could have been deligent in getting the return of the original deed. From the records of the suit and in the circumstances, as there is negligence on his part, the non-production because of the negligence of the 1st defendant does not permit the acceptance of the certified copy as secondary evidence.
24. On this aspect of the matter, the learned Counsel for the appellants has relied upon the decision of the Apex Court reported in AIR 1966 SC 1457 (The Roman Catholic Mission vs. The State of Madras and another), 32 wherein the Apex Court considering the provisions of Section 65 of the Evidence Act held that "unless the foundation is laid for establishment of right to give secondary evidence, the certified copies of original are not admissible in evidence." In para 8 of the judgment, the facts reveal that the originals of the documents were not produced, nor was any foundation laid for the establishment of the right to give secondary evidence and the High Court had rejected them and it was held that the High Court was the plainly right in so deciding.
25. Furthermore, he also relied upon the decision of the Apex Court reported in AIR 1954 SC 606 (Sital Das v. Sant Ram and others), wherein the Apex Court has held that "foundation must be first laid for its inception". As could be seen from para 16 of this judgment, it reveals that original Will was not produced nor certified copy of it before the Court and the documents which was produced was printed in the paper book prepared in the case 3 purported to be translation of the copy of the registered Will dated 07.10.1911 executed by Mahant Kishore Das. It is under these circumstances, it was held by the Apex Court that the said document was not proved by any witnesses and does not bear any exhibit mark and it was referred to incidentally in the judgment of the Courts below. In such circumstances, it held that such a copy cannot be accepted as secondary evidence. Furthermore, while referring to the provisions of Section 65 of the Evidence Act, the Apex Court observed that if the certified copy of the document is produced as secondary evidence under Section 65 from proper custody and is over 30 years old, then only the signatures on authenticating the copy may be presumed to be genuine, but production of a copy is not sufficient to raise the presumption of the due execution of the original. It is in such circumstances that the Apex Court rejected the document as inadmissible and I do not think that, as the defendants in this case have produced the certified copy of the gift deed, the principles laid down in the decision could be applicable.
26. Furthermore, the Counsel also relied upon the decision of this Court reported in ILR 1988 Karnataka 3347 (Avalappa v. Krishnappa), wherein the same principle i.e., the acceptance of secondary evidence of laying foundation is held by this Court also. In another decision of the Apex Court reported in AIR 2000 SC 1759 (State of Rajasthan and others vs. Khemraj and others), it was held by the Apex Court that to invoke the provisions of Section 65 of the Evidence Act, the application for production must be filed along with the full details and it must be supported by the affidavit. As could be seen from the facts of this case, though there was a chequered history with regard to litigation , the Apex Court had considered the order made by the trial Court on 21.01.1997 on an application filed by the appellants under Section 75 of the Evidence Act to produce secondary 35 evidence in respect of a map, the attested copy of which had been filed with that application. The trial Court rejected the application on the ground that the affidavit has not been accompanied and in these circumstances, the matter was remitted to the trial Court to enable the party to file an affidavit.
27. Placing reliance on these decisions, it is his contention that though the defendants have produced the certified copy at the first instance, the foundation has not been laid by pleading the loss of original in the written statement and that no application has been filed.
28. As could be seen from the decisions referred, it is necessary for a party to lay the foundation and it is held that there should be a pleading in the written statement in respect of certified copy of the original document. It is relevant to note that the defendants have produced the certified copy of the order sheet at Ex.D1 to prove that the original gift deed was produced in the said case and as the 36 records were destroyed, they produced the certified copy. This fact is spoken to by DW1 in his evidence. So as in the cases referred to supra, there is no specification as to the manner in which foundation is to be laid and even as could be seen from the provisions of Section 65 of the Evidence Act, there is no specific provision or procedure as to how the foundation is to be laid.
29. Furthermore, in the decision of the Apex Court reported in AIR 2000 SC 1759(supra), it was the attested copy which was produced before the Court and not certified copy. There is lot of difference between an attested copy and certified copy and as in the said case, the attested copy was produced and the Apex Court held that there is no proper foundation for acceptance of secondary evidence under Section 65 of the Evidence Act.
30. The learned Counsel further relied upon the decision of Orissa High Court reported in AIR 1958 ORISSA 207 (Akshya Narayan Praharaj vs. Maheswar
-5 ng into Bag), wherein the High Court of Orissa taki Evidence Act consideration Section 65, '47 and 67 of the ence of existence and over the proof of the secondary evid held that under or contents of lost document, it was e is admissible Section 65 of the Act, secondary evidenc document which only of the existence or the contents of a must be proved is lost, but the execution of the document Section 67 of the by primary evidence as required under Evidence Act.
ision
31. Furthermore, he also relied upon the dec (Narti Bai vs. of Apex Court reported in AIR 1958 Sc 706 Gita Bai Kom Rarna Gunge), wherein the Apex Court wherein the considered Section 65 of the Evidence Act, certified copies original sale deeds were not available and ence, but the thereof could be produced as secondary evid of a very weak reception of other evidence must always be ents evidencing character in place of registered docum those transactions. Furthermore, he relied upon the decision of Orissa High Court reported in AIR 1987 ORISSA 138 (Bhaskar Sahu v. Anama Swara and others) wherein the High Court of Orissa held that "when a certified copy is allowed to be produced under Section 65, there is no presumption as to the genuiness or the execution of the original and the Court should not admit a document merely on the ground that it is certified copy of the original, unless the execution of the original is proved or admitted by the persons against whom the same is to be relied on". This Court in a decision reported in 1998 (5) Kar.L.J.360 (G. Chikkapapanna alias G. C.Papanna vs. Smt. Kechamma (deceased) by L.Rs and Others) held that "to prove the execution, the certified copy of the documents itself is not sufficient and the same is not admissible as secondary evidence when the party producing it has not called upon opposite party to produce original and when it is not party's case that original has been lost or destroyed". This principle as well is not applicable as the facts on hand are all together different.
32. As could be seen from the decisions referred to supra, though it is necessary for a party to prove the loss of the original document, it is relevant to note that DW 1 in his evidence has stated that he had produced the original in the suit bearing O.S.No.97/ 1972 which was dismissed as settled out of Court and he did not get the return of the document and when he applied for the return of the document, he came to know that original documents have been destroyed. If he had not produced the original gift deed, there was no necessity for him to put forth such a case. The fact that the suit has been filed is not in dispute and copy of the order sheet has been produced at Ex.D 1. That was between the defendant No.1 and 3 and it is relevant to note that the question of gift was in favour of the 1st defendant. From these circumstances, it could be inferred that the documents must have been produced and if a person after the disposal of the case forgets having produced the documents, it cannot be said an act of 40 negligence. The 1st defendant could not have anticipated the requirement of this document in future. Furthermore, if he had recollected the document having been produced in the suit, he could have got it returned, but it is only because that he forgotten to get the return of the document, he was unable to produce the original and in such circumstance, as the original was destroyed, the certified copy could be accepted as secondary evidence and the defendants have examined DW2, the attesting witness to the gift deed to prove its execution. When the gift deed was executed on 05.07.1972, there was no controversy between the parties as regards the document in question. Furthermore, the fact that the gift deed has been registered is evident from the certified copy, which has been produced.
33. Hence in these circumstances, it could be said the 1st defendant has laid the foundation for that for establishing satisfactorily the loss of original and 41 acceptance of the certified copy as secondary evidence. On this aspect of the matter, the Counsel for the respondents have relied upon the decision of this Court reported in AIR 2006 KARNATAKA 95 (Gafarsab alias Sati Gafar Sab vs. Ameer Ahmad), wherein it has been held that "a party to the proceedings is not expected to file any application requesting the Court to permit him to lead the secondary evidence. All that is expected of him is to step into the witness- box and lead evidence setting out the circumstances under which he is unable to produce the primary evidence. If the Court is satisfied from such evidence that a case is made out for production of secondary evidence, it can permit the party to adduce secondary evidence subject to Sections 63 and 65 of the Act". Furthermore, he has also relied upon another decision of the Apex Court reported in AIR 2001 SC 2040 (Surendra Ku mar vs. Nathulal, wherein the Apex Court has held that "when there is registered deed of gift signed by donor and attested by the witnesses, if the donor has Al 42 specifically admitted the execution of Gift deed, the deed of gift can be said to be duly proved even if one of attesting witness is not called for proving its execution.
34. So as regards the gift deed at Ex.D2, neither the donor nor the donee have disputed the invalidity of this document. So far as the plaintiffs are concerned, they are the third parties. They have no right to question the execution. Even otherwise, DW2 has spoken to the execution of the original deed. In the circumstances, I am of the opinion that the document has been amply proved and Ex.D2 can be accepted as secondary evidence.
35. Now as regards the proof of partition between defendant No.1 and the L.Rs of Vishweshwara i.e., defendants No.2 to 5 is concerned, it is contended that this partition deed came into existence on 31.01.1973 and this document is a sham and colourable document which was never acted upon and it was executed only to see that agricultural income tax is avoided. The Counsel would A-, also contend that Ganapathi died on 16.06.1972 and the partition deed was executed on 05.07.1972 and it is improbable that there could have been a partition within six months of the death of Ganapathi in the family. He also contends that though amongst the sons of Vishweshwara were minors and were represented by the eldest brother and not the father. So in the circumstances, he submits that this partition cannot be accepted at all.
36. In so far as the interest of the plaintiffs is concerned, they have to claim right in the property of Subbaraya and in view of the fact that he executed a will which has been proved, the plaintiffs cannot claim any interest in the property of their grand father. Furthermore, in so far as the interest of Nagaveni, the grand mother is concerned, she has executed the gift deed and the said document has been proved satisfactorily and therefore, they are not entitled to claim even any interest in the property of Nagaveni who gifted the same in her life time. 44
37. In these circumstances, the plaintiffs having no right to claim share from Subbaraya and Nagaveni, there is no question of giving any share to them in the properties which was given to the male members of the family, as the plaintiffs have no right of inheritance from other members except Subbaraya and his wife Nagaveni. In this context, the question as to whether the partition deed is colourable or sham has no impact on the interest of the contesting defendants in the suit properties. But anyhow division of the properties in this short period appears to be improper.
38. There is a specific plea in the written statement that the suit is barred by time. The learned Counsel for the appellant has relied upon the decision of the Apex Court reported in AIR 1995 SC 895 (Annasaheb Bapusaheb Patil and Others v. Baiwant alias Balasaheb Babusaheb Patil (dead) by LRs & heirs etc.,), wherein it has been held by the Apex Court that "in the case of Hindu Joint family, there is a community of interest and unity of 45 possession among all the members of the joint family and every coparcener is entitled to joint possession and enjoyment of the coparcenery property. The mere fact that one of the coparceners is not in joint possession does not mean that he has been ousted. The possession of the family property by a member of the family cannot be adverse to the other members but must be held to be on behalf of himself and other members. The possession of one, therefore, is the possession of all. The burden lies heavily on the member setting up adverse possession to prove adverse character of his possession by establishing affirmatively that to the knowledge of other members he asserted his exclusive title and the other members were completely excluded from enjoying the property and that such adverse possession had continued for the statutory period. Mutation in the name of the elder brother of the family for the collection of the rent and revenue does not prove hostile act against the other". So also he had relied upon another decision of the Apex Court reported in AIR 1971 SC 376, wherein it is held that 46 "Article 65 of Limitation Act - Possession of the lands by a co-owner however long it might be cannot confer on him any right unless it is adverse to other co-owners. ".
39. So placing reliance on the principle laid down in the decisions referred to supra, it is contended that the suit filed by the plaintiffs is within time. Now it is important to note that even from the life time of Subbaraya, the male members of the family have expressed their intention not to give any share to the daughters and it is in this context that Subbaraya executed Will bequeathing his interest in the suit properties to his sons. So by the execution of the Will itself, it could be inferred that the male members had no desire to give any share to the daughters. Further the fact that the Will was executed in the year 1968 is very much known to the plaintiffs and there was entry in the records also. In such circumstances, when the plaintiffs were aware of the existence of the will, the possession of the 47 defendants would be adverse to the interest of the plaintiffs. Even the gift deed was executed on 05.07.1972 and it is a registered document and it has to be presumed that the plaintiffs had the knowledge of this gift deed and this document as well indicates the of the share of the plaintiffs in the suit properties.
40. So if these facts and circumstances are taken into consideration, the principles laid down in the decisions referred to supra of Article 65 of the Limitation Act do not apply to the facts on hand. Hence I am of the opinion that the suit instituted by the plaintiff in the year 1997 is barred by time.
41. Finally, the counsel for the plaintiff has contended that the alienation of the joint family properties do not bind the plaintiffs and that there is no necessity to seek a declaration regarding the alienation made. On this aspect of the matter, he relies upon the decision of this Court reported in 1998 (4) Kar.LJ365 (Vadde Sanna 48 Hulugappa and Others vs. Vadde Sanna Hulugappa (deceased) by L.R.s and Others). This question has lost importance in view of the findings given above. But any how, it is relevant to note that the gift deed was executed by the grand mother Nagaveni, the mother of the plaintiffs through whom they claim succession. On this aspect of the matter, the counsel for the respondents has also placed reliance on the decision of this Court reported in AIR 1976(2) KU 209 (Chikkathammaih & Ors. Vs. Shikkahutchiah & Ors.). The facts of the case reveal that the suit was filed by the sons of one C for declaration of title and permanent injunction, alleging that the property was joint family property and after the death of C they got title and that a sale deed executed by C was not binding upon them. In these circumstances, it was held by this Court that the suit would not be maintainable unless the plaintiffs sought for cancellation of the sale deed. So if the principle laid down is applied to the facts on hand the suit instituted by the appellants is not maintainable solely on A '\ / 49 the ground that they have not challenged the gift deed Ex.D2.
42. The trial Court has taken into consideration all the facts and circumstances and has come to the right conclusion. I do not find any error or illegality in the judgment of the Court below. The appellants have not made out any such grounds to call for interference.
43. In the circumstances I answer the substantial questions of law No.1, 2 and 4 in affirmative and 3, 5 and 6 in negative and proceed to pass the following order:
ORDER The appeal is dismissed. No costs.
Sd/ JUDGE gab/