Karnataka High Court
Nageshappa vs Subbarayappa on 17 December, 2021
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
RSA.2471/2006
C/W RSA.CROB.2/2011
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
R.S.A.No.2471/2006
C/W
R.S.A.CROB.NO.2/2011
IN RSA.2471/2006
BETWEEN:
1. NAGESHAPPA
S/O K.N.MUDDAPPA,
AGE: 50 YEARS.
2. MANJUNATHA
S/O MUDAPPA
AGED: 40 YEARS
3. CHIKKAMMA
W/O LATE K. N. MUDDAPPA, (DEAD)
4. LAKSHMIDEVAMMA
W/O NAGARAJAPPA,
DEAD BY L.RS.
A. K.N.SUMALATHA,
AGE: 22 YEARS.
B. SUJATHA
AGE: 20 YEARS.
C. MADHUSUDHANA
AGE:14 YEARS.
LRS 4(A) TO (C) ARE DAUGHTERS
AND SON OF LAKSHMIDEVAMMA,
LR 4(C) IS MINOR R/B N/G (4A)
5. THIMMAKKA
D/O K.N.MUDDAPPA,
RSA.2471/2006
C/W RSA.CROB.2/2011
2
W/O LATE MUTHRAYAPPA (DEAD),
R/O ANUDI, HOSUR HOBLI,
GOURIBIDANUR TALUK,
KOLAR DISTRICT.
6. LAKSHMAMMA
D/O LATE NAGAPPA,
(DIED),
W/O NAGAPPA,
APPELLANTS 1 TO 4 AND 6 ARE
RESIDNETS OF KODIGENAHALLI,
MADHUGIRI TQ., TUMAKURU DIST. ... APPELLANTS
(BY SRI PATEL D. KAREGOWDA, ADV.;
APPELLANTS-3, 5, 6 ARE DECEASED AND
APPELLENTS- 1 & 2 ARE
LRS OF APPELLANT NO.4)
AND:
1. SUBBARAYAPPA
DIED ON 8-9-06,
BY LRS WIFE,
SANJEEVAMMA
ALSO DIED.
BOTH DEAD.
MEMO FILED TO TREAT R2, LRS OF
3 TO 5 AS LRS OF R1. MEMO ALLOWED
V.C.O. DATED: 19.02.2021.
2. RAMAPPA
S/O LATE SUBBANNA,
60 YEARS.
3. SIDDAPPA
S/O LATE SUBBANNA,
AGE: 55 YEARS,
DEAD BY LRS V.C.O. DATED 26.02.19.
A. SMT. MUDDAMMA
W/O LATE SIDDAPPA,
AGE: 55 YEARS.
B. SHIVAPPA
S/O LATE SIDDAPPA,
RSA.2471/2006
C/W RSA.CROB.2/2011
3
AGE: 35 YEARS.
C. NAGABHUSHANA
S/O LATE SIDDAPPA,
AGED: 32 YEARS.
D. SMT. GANGARATHNAMMA
W/O THIMMAIAH,
D/O LATE SIDDAPPA,
AGE: 22 YEARS,
R/O SUDDEGUNTE,
KODIGENAHALLI TOWN,
MADHUGIRI TALUK.
E. K.S.MAMATHA
W/O NAGARAJU,
D/O LATE SIDDAPPA,
AGE: 26 YEARS,
R/O D.HALLI, HOBLI & POST,
MADHUGIRI TALUK,
TUMAKURU DISTRICT.
4. CHIKKASIDDAPPA
S/O LATE SUBBANNA,
AGE: 52 YEARS,
SINCE DEAD BY LRS -
V.C.O. DATED 18.11.16.
A. SMT. NARASAMMA
W/O CHIKKASIDDAPPA,
AGE: 50 YEARS.
B. SHIVAKUMAR
S/O CHIKKASIDDAPPA,
AGE: 28 YEARS.
C. RAVIKUMAR
S/O LATE CHIKKASIDDAPPA,
AGED: 26 YEARS.
5. NAGAPPA
S/O LATE SUBBANNA,
SINCE DEAD BY LRS -
V.C.O. DATED 25.05.2021
A. GOWRAMMA
W/O NAGAPPA,
AGE: 45 YEARS.
RSA.2471/2006
C/W RSA.CROB.2/2011
4
B. MANJUNATH
S/O LATE NAGAPPA,
AGE: 30 YEARS.
C. HARISH
S/O LATE NAGAPPA,
AGE: 25 YEARS.
RESPONDENTS 2, 3(A) TO (E), 4(A) TO (C)
AND 5(A) TO (C) ARE
R/O KODIGEHALLY VILLAGE,
MADHUGIRI TALUK,
TUMAKURU DISTRICT. ... RESPONDENTS
(BY SRI SAGAR B.B., ADV. FOR R5(A),
V/O DTD:30.07.2019;
R2, R3 (A TO E), R4 (A TO C) ARE SERVED,
V/O DTD:19.02.2021;
R2 TO R5 ARE LRS OF DECED R1;
V/O DTD: 17.11.2020 APPEAL AGAINST R5 IS
DISMISSED AS ABATED;
R5(B), R5(C)-SERVED)
IN RSA CROB.2/2011
BETWEEN:
1. SMT. SANJEEVAMMA
W/O LATE SUBBARAYAPPA,
AGED ABOUT 48 YEARS.
2. SRI RAMAPPA
S/O LATE SUBBANNA,
AGED ABOUT 60 YEARS.
3. SRI SIDDAPPA
S/O LATE SUBBANNA,
AGED ABOUT 55 YEARS,
DEAD BY HIS LRS.
3(A). SMT. MUDDAMMA
W/O LATE SIDDAPPA,
AGED ABOUT 55 YEARS.
3(B). SRI SHIVAPPA
S/O LATE SIDDAPPA,
RSA.2471/2006
C/W RSA.CROB.2/2011
5
AGED ABOUT 35 YEARS.
3(C). SRI NAGABHUSHANA
S/O LATE SIDDAPPA,
AGED ABOUT 32 YEARS.
ALL ARE R/AT. KODIGENAHALLI TOWN POST
AND HOBLI,
MADHUGIRI TALUK,
TUMKUR DISTRICT.
3(D). SMT. GANGARATHNAMMA
W/O THIMMAIAH,
D/O LATE SIDDAPPA,
AGED ABOUT 22 YEARS,
R/O SUDDEGUNTE,
KODIGENAHALLI TOWN POST
AND HOBLI,
MADHUGIRI TALUK,
TUMKUR DISTRICT.
3(E). SMT. K.S.MAMATHA
W/O NAGARAJU,
D/O LATE SIDDAPPA,
AGED ABOUT 26 YEARS,
R/O D.HALLI HOBLI & POST,
MADHUGIRI TALUK,
TUMAKURU DISTRICT.
4. SRI CHIKKASIDDAPPA
S/O LATE SUBBANNA,
AGED ABOUT 52 YEARS,
DEAD BY HIS LRS
4(A). SMT. NARASAMMA
W/O CHIKKASIDDAPPA,
AGED ABOUT 50 YEARS.
4(B). SRI SHIVAKUMAR
S/O CHIKKASIDDAPPA,
AGED ABOUT 28 YEARS.
4(C). SRI RAVIKUMAR
S/O LATE CHIKKASIDDAPPA,
AGED ABOUT 26 YEARS.
4(A) TO 4(C) ARE AGRICULTURISTS
R/O KODIGENAHALLI VILLAGE,
RSA.2471/2006
C/W RSA.CROB.2/2011
6
MADHUGIRI TALUK,
TUMKUR DISTRICT - 572131.
5. SRI NAGAPPA
S/O LATE SUBBANNA,
AGED ABOUT 50 YEARS,
NOS.1 TO 5 ARE
AGRICULTURISTS,
R/O KODIGENAHALLI VILLAGE,
MADHUGIRI TALUK,
TUMKUR DISTRICT-572131. .. CROSS OBJECTORS
(BY SRI SAGAR B.B., ADV. FOR
SRI SATHISH M.DODDAMANI, ADV.)
AND:
1. SRI NAGESHAPPA
S/O K.N.MUDDAPPA,
AGED ABOUT 53 YEARS.
2. SRI MANJUNATHA
S/O LATE K.N.MUDAPPA
AGED ABOUT 43 YEARS
3. SMT. CHIKKAMMA
W/O LATE K. N. MUDDAPPA,
AGED ABOUT 78 YEARS
4. SMT. LAKSHMIDEVAMMA
W/O LATE NAGARAJAPPA,
AGED ABOUT 53 YEARS,
DEAD BY LRS
4(A). K.N.SUMALATHA,
D/O LATE NAGARAJAPPA,
AGED ABOUT 25 YEARS.
4(B). SUJATHA
D/O LATE NAGARAJAPPA,
AGED ABOUT 23 YEARS.
4(C). MADHUSUDHANA
S/O LATE NAGARAJAPPA,
AGED ABOUT 17 YEARS,
MINOR REPRESENTED BY
GUARDIAN.
RSA.2471/2006
C/W RSA.CROB.2/2011
7
i.e. RES. 4(A) K.N.SUMALATHA
D/O LATE NAGARAJAPPA,
AGED ABOUT 25 YEARS.
RESPONDENTS 1, 2, 3, 4(A), 4(B), 4(C)
ARE R/O KODIGENAHALLI,
MADHUGIRI TALUK,
TUMKUR DISTRICT - 572131.
5. SMT. THIMMAKKA
D/O LATE K.N.MUDDAPPA,
W/O MUTHRAYAPPA,
R/O ANUDI, HOSUR HOBLI,
GOURIBIDANUR TALUK,
CHIKKABALLAPUR DISTRICT.
6. SMT. LAKSHMAMMA
D/O LATE NAGAPPA
AGED ABOUT 40 YEARS,
RESPONDENTS 1 TO 4 AND 6 ARE
RESIDNETS OF KODIGENAHALLI,
MADHUGIRI TQ.,
TUMAKURU DIST. ... RESPONDENTS
(BY SRI PATEL D.KAREGOWDA, ADV. FOR R1, R2, R3,
R4(A-C), R5 AND R6)
REGULAR SECOND APPEAL NO.2471/2006 IS FILED
UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 29.05.2006 PASSED IN RA.NO.5/1997 ON
THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-
II, TUMKUR, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 19.2.1997 PASSED IN
OS.NO. 120/1979 ON THE FILE OF THE CIVIL JUDGE,
MADHUGIRI.
REGULAR SECOND APPEAL CROSS OBJECTION
NO.2/11 IS FILED UNDER ORDER 41 RULE 22 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 29.05.2006
PASSED IN RA.NO.5/1997 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-II, TUMKUR, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 19.02.1997 PASSED IN OS.NO. 120/1989 ON THE FILE
OF THE CIVIL JUDGE, MADHUGIRI.
RSA.2471/2006
C/W RSA.CROB.2/2011
8
THIS REGULAR SECOND APPEAL AND CROSS-
OBJECTIONS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 23.11.2021 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Defendant Nos.1 to 6 have preferred R.S.A.No.2471/2006 challenging the judgment and decree dated 29th May 2006 passed by the court of Fast Track-II, Tumkur, reversing the judgment and decree dated 19th February 1997 passed by the court of Civil Judge, Madhugiri, in O.S.No.120/1989 and thereby partly decreeing the suit of the plaintiffs declaring that the plaintiffs are entitled for partition and separate possession of 1/4th share in the suit schedule properties and also holding that the plaintiffs are entitled for mesne profits from the date of suit till they are put in possession of the same, while the Cross Objections have been filed by the plaintiffs with a prayer to modify the judgment and decree passed by the first appellate court and grant half share in the suit schedule properties.
RSA.2471/2006C/W RSA.CROB.2/2011 9
2. For the sake of convenience, the parties to the appeal are referred to as per their rankings given before the trial court.
3. Brief facts of the case that would be relevant for the purpose of disposal of the appeal and cross- objections are:
The plaintiffs filed O.S.No.120/1989 before the court of Civil Judge, Madhugiri (for brevity "the trial court") against the defendants seeking the relief of partition and separate possession of their half share in the suit schedule properties.
4. It is the case of the plaintiffs that one Doddamuddappa was the propositus of the family and he had five sons viz., Nagappa, Bodappa, Subbanna, Ramaiah and Siddappa. Amongst the five sons, Bodappa and Ramaiah died issueless and Siddappa died unmarried. Nagappa and Subbanna had children. The plaintiffs are the sons of Subbanna and the seventh defendant is the wife of Subbanna. RSA.2471/2006 C/W RSA.CROB.2/2011 10 Nagappa was married to Thimmakka and they had two children from their wedlock i.e., a son by name K.N.Muddappa and a daughter by name Lakshmamma. K.N.Muddappa has expired and the 3rd defendant is the wife of Muddappa and defendant Nos.1, 2, 4 and 5 are his children. Defendant No.6 is the daughter of Nagappa.
5. It is the case of the plaintiffs that the suit schedule properties are ancestral joint family properties of the plaintiffs and the defendants and the khatha of the property stood in the name of Ramaiah s/o Doddamuddappa. After the death of Ramaiah, who died issueless, the khatha of the suit schedule properties were changed in the name of Nagappa, who was the eldest son of Doddamuddappa. Subsequent to death of Nagappa, the khata in respect of the suit schedule properties was changed in the name of his son K.N.Muddappa, who is also no more. The plaintiffs demanded their share in the suit schedule property for which defendant Nos.1 to 6 did not agree RSA.2471/2006 C/W RSA.CROB.2/2011 11 and therefore, they have filed O.S.No.120/1989 before the trial court.
6. After service of suit summons, defendant Nos.1 to 6 had jointly entered appearance and filed a written statement admitting the relationship between the parties. But they denied that the suit schedule properties are the ancestral joint family properties of the plaintiffs and defendants. It was contended by defendant Nos.1 to 6 that Bodappa had died earlier to 1936 and thereafterwards the remaining four brothers viz., Nagappa, Subbanna, Ramaiah and Siddappa had mortgaged the suit schedule item Nos.1 to 4 properties and Sy.No.63 in favour of one Vangol Adisheshaiah Setty under a registered mortgage deed dated 16.07.1936. During the subsistence of the said mortgaged deed, on 26.05.1940, a settlement deed was executed between the four brothers and in the said deed, Subbanna, the father of the plaintiffs released his share of the properties, which were the subject matter of the mortgage, in favour of his other three RSA.2471/2006 C/W RSA.CROB.2/2011 12 brothers on the ground that he was not in a position to clear the debt. The property bearing Sy.No.63 was left to the share of Ramaiah in lieu of his marriage expenses and the suit schedule item Nos.1 to 4 properties remained with other three brothers viz., Nagappa, Siddappa and Ramaiah. The said three brothers jointly purchased item No.6 property under a registered sale deed dated 05.08.1947 in the name of Ramaiah. Subsequently Siddappa and Ramaiah died and they were issueless. Therefore, Nagappa alone became the sole owner of item Nos.1 to 4 and 6 of the suit said properties. After the death of Nagappa, his son K.N.Muddappa succeeded to the said properties. The house in suit item No.5 property is constructed by the third defendant, who is the widow of K.N.Muddappa, out of her own funds and she is the exclusive owner of the said property. It was further contended by defendant Nos.1 to 6 that they are in actual possession and enjoyment of all the suit schedule properties openly and notoriously hostile to RSA.2471/2006 C/W RSA.CROB.2/2011 13 the interest of the plaintiffs and defendant No.7 ever since the date of release deed and thereby they have perfected their title over the lands by adverse possession. It was also contended by them that the suit is barred by limitation and accordingly they prayed to dismiss the suit.
7. The plaintiffs had filed rejoinder denying the execution of the release deed by their father late Subbanna and the exclusive possession of the suit schedule properties by defendant Nos.1 to 6.
8. On the basis of the rival pleadings, the trial court had initially framed nine issues and subsequently framed an additional issue, which are as follows:
"1. Whether plaintiffs prove that the suit schedule properties are ancestral joint family properties of the parties?
2. Whether defendants 1 to 6 prove that Subbanna, the father of plaintiffs released from the joint family? RSA.2471/2006 C/W RSA.CROB.2/2011 14
3. Whether defendants 1 to 6 prove that Sy.No.63 was left to the share of Siddaiah or his marriage expenses?
4. Whether the defendants further prove that Nagappa, Ramaiah and Siddappa only constituted a joint family?
5. Whether they further prove that item No.6 is their self acquisition?
6. Whether the 3rd defendant proves that the item No.5 of the suit properties exclusively belongs to her?
7. Whether the plaintiffs are entitled to the half share in all the suit schedule properties?
8. Whether plaintiffs are entitled to the further mesne profits?
9. To what decree or order?"
Additional Issue:
"Whether defendants 1 to 6 have perfected their title by adverse possession?"
9. During the course of trial, the plaintiffs examined five witnesses as PWs-1 to 5 and got marked three documents, which were exhibited as Exs.P1 to P3. On behalf of the defendants, five witnesses were RSA.2471/2006 C/W RSA.CROB.2/2011 15 examined as DWs-1 to 5 and marked 83 documents, which were exhibited as Exs.D1 to D83.
10. After completing the recording of evidence, the trial court heard the arguments addressed on both sides and after appreciating the oral and documentary evidence available on record, by its judgment and decree dated 19.02.1997 dismissed the suit of the plaintiffs with costs. Being aggrieved by the same, the plaintiffs had filed R.A.No.5/1997 before the court of Fast Track-II, Tumkur. The first appellate court after hearing the arguments addressed on behalf of the parties had framed the following points for consideration:
"i) Whether the finding recorded by the Trial Court on additional issue that the defendants.1 to 6 have perfected their title by adverse possession in respect of suit properties 1 to 4 is not correct and proper?
ii) Whether the finding given by the Trial Court that suit item.5 the self-acquired property of the 3rd defendant is not correct and proper?
iii) Whether the finding given by the Trial Court that the plaintiffs are not entitled to RSA.2471/2006 C/W RSA.CROB.2/2011 16 half share in the suit properties is not correct and proper?
iv) Whether the judgment and decree of the Trial Court call for interference?
v) What decree or order?"
11. The first appellate court on a re-appreciation of the oral and documentary material evidence available on record has allowed the appeal setting aside the judgment and decree passed by the trial court and decreed the suit of the plaintiffs declaring that the plaintiffs are entitled for partition and separate possession of 1/4th share in the suit schedule properties and also for mesne profits from the date of suit till they are put in possession of their share in the suit schedule property.
12. Being aggrieved by the same, defendant Nos.1 to 6 have filed R.S.A.No.2471/2006 while the plaintiffs have filed Cross Objection No.2/2011 for enhancement of their share and decreeing the suit as prayed for by them.RSA.2471/2006
C/W RSA.CROB.2/2011 17
13. This court had admitted the regular second appeal on 25.07.2008 to consider the following substantial question of law:
"Whether in the facts and circumstances of the case, the appellate court was justified in reversing the judgment and decree passed by the trial court and granting 1/4th share in the suit schedule properties to the respondents ignoring Ex.D2?"
14. Heard the learned counsel appearing for the defendants as well as the learned counsel appearing for the plaintiffs and also perused the material evidence available on record.
15. Learned counsel appearing for the defendants submitted that the first appellate court has completely misread Ex.D2/release deed and thereby erred in decreeing the suit of the plaintiffs. He submitted that the defendants have inherited the entire suit schedule properties including the share of the undivided brother of Nagappa i.e., grandfather of the defendants. He submitted that Subbanna had RSA.2471/2006 C/W RSA.CROB.2/2011 18 executed the release deed in the year 1940 and therefore, he had no share in the suit schedule property and only the remaining three brothers, who are party to the release deed, are the absolute owners of the said property. He submitted that after the death of Ramaiah and Siddappa, Nagappa alone became the owner of the suit schedule item Nos.1 to 4 properties and after the death of Nagappa, defendant Nos.1 to 6 being his legal heirs had succeeded to his property.
16. Per contra, learned counsel appearing for the plaintiff submitted that even if it is presumed that Subbanna had executed a release deed in favour of the other brothers of his, the plaintiffs, who are his children, are entitled for a share in the property of their paternal uncles Ramaiah and Siddappa. After the death of Ramaiah and Siddappa, the plaintiffs have inherited to the properties of Ramaiah and Siddappa along with Nagappa and his heirs. This aspect of the matter was completely overlooked by the trail court and the first appellate court on re- RSA.2471/2006 C/W RSA.CROB.2/2011 19 appreciation of the oral and documentary evidence available on record has rightly decreed the suit. He submits that release deed by Subbanna is not proved by defendants. Ex.D2 is a unregistered document, therefore, not admissible in law. He submits that the first appellate court ought to have held that the plaintiffs are entitled for half share in the suit schedule property instead of 1/4th share and the challenge to the judgment and decree passed by the first appellate court in his cross-objections was only to the limited extent. Therefore, he prays to dismiss the regular second appeal and to allow the cross objections.
17. The relationship between the parties to the proceedings is not in dispute. It is also not in dispute that suit item No.1 to 4 were the joint family properties of the children of Doddamuddappa viz., Nagappa, Bodappa, Subbanna, Ramaiah and Siddappa. So far as item No.5 of the property is concerned, defendant No.3 has claimed that it is his exclusive property and RSA.2471/2006 C/W RSA.CROB.2/2011 20 she has constructed a house in the said property. The material on record would go to show that the revenue records of the said land originally stood in the name of Ramaiah and after his death in the name of his son Nagappa and after the death of Nagappa, it was changed in the name of his son K.N.Muddappa and after the death of K.N.Muddappa, the revenue entries were changed in the name of third defendant, who is the wife of K.N.Muddappa. Though there is material available on record to show that the third defendant had obtained licence for construction of a house in the said property, there is absolutely nothing on record to show that item No.5 property was purchased by the third defendant and thereafterwards the house was constructed. It is not the case of the defendants that there was a partition between Nagappa and his brothers and the item No.5 of the suit schedule property was allotted to his share. Therefore, item No.5 property is required to be considered as a joint RSA.2471/2006 C/W RSA.CROB.2/2011 21 family property, since there is admittedly no partition between the sons of Doddamuddappa.
18. So far as item No.6 of the suit schedule property is concerned, the said property was purchased by Ramaiah and admittedly, there was no partition in respect of the joint family property, which were left behind by Doddamuddappa as on the date when the item No.6 property was purchased by Ramaiah. There is no material on record to show that Ramaiah had income of his own and therefore, it has to be presumed that the item No.6 property was purchased by Ramaiah out of the income from the suit item Nos.1 to 4 properties, which were left behind by Doddamuddappa. Ramaiah has admittedly died intestate and he had no children. Since the suit item No.6 schedule property is held to be purchased by Ramaiah by utilizing the income from item Nos.1 to 4 properties, item No.6 property is also required to be considered as a joint family property. Even if it is presumed that item No.6 property is Ramaiah's self- RSA.2471/2006 C/W RSA.CROB.2/2011 22 acquired property, admittedly, Ramaiah has died intestate and he had no issues. Therefore, after his death, his property naturally devolves to his next legal heirs who are the plaintiffs and defendants.
19. There is no dispute that after the death of Doddamuddappa, his four sons viz., Nagappa, Subbanna, Ramaiah and Siddappa had succeeded to the joint family properties viz., item Nos.1 to 4 of the suit schedule properties.
20. It is the case of the defendants that after the death of Doddamuddappa, the four brothers had executed a registered mortgage deed in favour of one Vangol Adisheshaiah Setty on 16.07.1936 and item Nos.1 to 4 properties were mortgaged under the said deed for a sum of Rs.500/-. It is their further case that since Subbanna, who is the father of plaintiffs, did not have means to clear the debt and mortgaged the property, he had executed an unregistered release deed dated 26.05.1940 in favour of his other brothers, RSA.2471/2006 C/W RSA.CROB.2/2011 23 relinquishing his rights in item Nos.1 to 4 properties. It is on the basis of this document, the defendants contend that the plaintiffs are not entitled for any share in the property because their father had relinquished his rights in the joint family properties left behind by Doddamuddappa. The mortgage deed has been produced by defendants and marked as Ex.D1. There is no serious dispute with regard to execution of this document. From a reading of this document, it is very clear that Nagappa, Kenchigappa and Ramaiah had executed this deed in favour of Vangol Adisheshaiah Setty. It is the case of the defendants that Subbanna was also known as Kenchigappa. The courts below after appreciating the oral and documentary evidence available on record have recorded a concurrent finding that Subbanna was also known as Kenchigappa. Even if it is presumed that the mortgage deed as per Ex.D1 is said to have been proved, the question that requires consideration would be whether under the alleged RSA.2471/2006 C/W RSA.CROB.2/2011 24 relinquishment deed dated 26.05.1940/Ex.D2, Subbanna @ Kenchigappa had released his rights in respect of the suit item Nos.1 to 4 properties in favour of his other three brothers. Admittedly, Ex.D2 is an unregistered document. As per Section 17 of the Registration Act, 1908, Ex.D2 is a compulsory registrable document. Therefore, Ex.D2/release deed is hit by Section 49 of the Registration Act and the same is not an admissible document nor can it be relied upon to prove the case of the defendants that Subbanna had released his rights under the alleged release deed Ex.D2 dated 26.05.1940 in favour of his brothers. Further, defendant Nos.1 to 6, who have relied upon the release deed Ex.D2, have not produced the entire document and on the other hand, only a portion of the said document is produced. Under the circumstances, no reliance can be placed on the said document and it cannot be held that Subbanna has relinquished his rights in item Nos.1 to 4 of the suit schedule properties in favour of his three brothers. RSA.2471/2006 C/W RSA.CROB.2/2011 25 Admittedly, Doddamuddappa had five sons viz., Nagappa, Bodappa, Subbanna, Ramaiah and Siddappa. Bodappa had died earlier to 1936. After his death, his four brothers had succeeded to the property of Doddamuddappa. Bodappa and Ramaiah had died issueless and Siddappa died unmarried. Therefore, the share of deceased brothers viz., Bodappa, Ramaiah and Siddappa had devolved on their surviving brothers viz., Subbanna and Nagappa. The plaintiffs are the sons of Subbanna and the 7th defendant is the wife of Subbanna. Therefore, the plaintiffs and 7th defendant are together entitled for half share in the suit schedule property while the defendants, who are the legal heirs of Nagappa, are together entitled for the remaining half share in the suit schedule property.
21. The first appellate court having properly appreciated the facts and circumstances of the case was, therefore, justified in reversing the judgment and decree passed by the trial court ignoring Ex.D2. RSA.2471/2006 C/W RSA.CROB.2/2011 26 However, the first appellate court has erred in granting only 1/4th share in the suit schedule property in favour of the plaintiffs whereas it ought to have granted half share in the suit schedule property in favour of plaintiffs. Therefore, the substantial question of law is required to be answered partially in the affirmative.
22. Under the circumstances, the appeal filed by the defendants is liable to be dismissed and the cross- objections filed by the plaintiffs is required to be allowed. Accordingly, the following order:
R.S.A.No.2471/2006 is dismissed. R.S.A.Cross Objection No.2/2011 is allowed. The judgment and decree dated 19th February 1997 passed by the court of Civil Judge, Madhugiri, in O.S.No.120/1989 and the judgment and decree dated 29th May 2006 passed by the court of Fast Track-II, Tumkur, are hereby set aside.
The suit of the plaintiff is decreed declaring that the plaintiffs are entitled for partition and separate RSA.2471/2006 C/W RSA.CROB.2/2011 27 possession of half share in the suit schedule properties and they are also entitled for mesne profits from the date of suit till they are put in possession of the same.
In view of disposal of R.S.A.No.2471/2006, the pending I.A. filed in the said appeal does not survive for consideration. Hence, it stands disposed of.
Sd/-
JUDGE KNM/-