Karnataka High Court
Sri K N Sananda Ganesh vs Smt Lakshmamma on 22 August, 2022
Author: V. Srishananda
Bench: V. Srishananda
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®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.NO.1916/2005(DEC/INJ)
C/W
R.F.A.No.1915/2005(PAR)
IN R.F.A.NO.1916/2005
BETWEEN
SRI K N SANANDA GANESH
S/O LATE K.T.NAGAPPA REDDY
AGED ABOUT 48 YEARS
R/AT DODDAKANNAHALLI
CARMELARAM POST
VARTHUR HOBLI
BANGALORE EAST TALUK
EARLIER BANGALORE SOUTH TALUK
BANGALORE URBAN DISTRICT
...APPELLANT
(BY SRI M.S. VARADHARAJAN, ADVOCATE)
AND :
SMT LAKSHMAMMA
W/O LATE K.T.NARAYANA REDDY
AGED ABOUT 62 YEARS
R/O DODDAKANNAHALLI
CARMELARAM POST
VARTHUR HOBLI
BANGALORE SOUTH TALUK
Now BANGALORE EAST TALUK
2
BANGALORE URBAN DISTRICT
...RESPONDENT
(BY SRI K.P.BHUVAN, ADVOCATE
FOR M/S.PURNA LAW ASSTS.,)
THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DT.9.9.2005 PASSED
IN O.S.NO.174/1995 ON THE FILE OF THE II ADDL. CIVIL
JUDGE (SR.DN), BANGALORE RURAL DISTRTIC, BANGALORE,
DISMISSING THE SUIT FOR DECLARATION AND
INJUNCTION.
IN R.F.A.NO.1915/2005
BETWEEN
1 . SRI K N SANANDA GANESH
S/O LATE K.T.NAGAPPA REDDY
AGED ABOUT 48 YEARS
2 . SHIVASHANKAR
S/O LATE K.T.NAGAPPA REDDY
AGED ABOUT 55 YEARS
3 . SHIVANANDA
S/O LATE K.T.NAGAPPA REDDY
AGED ABOUT 46 YEARS
ALL ARE RESIDING AT
DODDAKANNAHALLI
CARMELARAM POST
VARTHUR HOBLI
BANGALORE EAST TALUK
...APPELLANTS
(BY SRI M.R.RAJGOPAL, SR. COUNSEL FOR
SRI M.RAMA MOHAN AND SRI C.B.PRAKASH, ADVOCATES)
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AND
1 . SMT LAKSHMAMMA
W/O LATE K.T.NARAYANA REDDY
AGED ABOUT 62 YEARS
2 . SMT RATHNA
D/O LATE K.T.NARAYANA REDDY
MAJOR
3 . SMT PARVATHI
D/O LATE K.G.NAGAPPA
AGED ABOUT 44 YEARS
4 . KANAKARATHNAMMA
D/O LATE K.T.NAGAPPA REDDY
AGED ABOUT 42 YEARS
5. SMT.NANJAMMA
W/O LATE K.T.NARAYANA REDDY
ALL ARE RESIDING AT
DODDAKANNAHALLI
VARTHUR HOBALI-560 087
BANGALORE EAST TALUK
...RESPONDENTS
(BY SRI K.P.BHUVAN, ADVOCATE FOR R1 AND R2;
NOTICE TO R3 TO R5 SERVED, UNREPRESENTED)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE
JUDGMENT AND DECREE DT.9.9.2005 PASSED IN
O.S.NO.215/95 ON THE FILE OF THE II ADDL. CIVIL JUDGE
(SR.DN), BANGALORE RURAL DIST., BANGALORE,
DECREEING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.
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THESE APPEALS COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are arising out of a common judgment passed by the II Additional Civil Judge (Sr.Dvn), Bengaluru Rural District, Bengaluru, pertaining to O.S.Nos.174/1995 and 215/1995.
2. Brief facts necessary for the disposal of these two appeals as is borne from the records are as under:
One Narayana Reddy and Nagappa Reddy purchased property in Sy.No.124 of Dodda Kannalli village, Varthur Hobli, Bengaluru South Taluk, Bengaluru District from its erstwhile owner Sri Papanna Chari S/o Thomasappa.
3. The boundaries of property in Sy.No.124 of Dodda Kannalli village, Varthur Hobli, Bengaluru South Taluk reads as under:
East by : Kaka Thimmaiah, Annayya Reddy's Lands and Gramathana;
West by : Ramaia H, Nyathappa,
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Thomsachar's lands;
North by : Gramathana and
South by : Road
4. The said sale deed came to be registered on 08.07.1953 before the Sub-Registrar. Thereafter, Narayana Reddy died and his wife Lakshmamma and his daughter Rathna filed a suit for partition in the year 1995 seeking their half share in the property against the wife and children of Sri Nagappa Reddy.
5. Earlier to filing of the said suit for partition, O.S.No.174/1995 was filed by K.N.Sananda Ganesh S/o Late Nagappa Reddy stating that the suit schedule property in O.S.No.215/1995 is the absolute property of Nagappa Reddy by virtue of an agreement entered into on 30.01.1980 by paying Rs.30,000./- as the consideration and Narayana Reddy has relinquished all his share in the suit property to Sri Nagappa Reddy.6
6. While Laskhmamma and Rathna denied the plaint averments in O.S.No.174/1995, the wife and children of Nagappa Reddy denied the plaint averments in O.S.No.215/1995 maintaining that the suit schedule property in O.S.No.215/1995 is the absolute property of Nagappa Reddy by virtue of partition that has taken place in the year 1960 and subsequent revenue entries being transferred on to the names of wife and children of Nagappa Reddy and thus sought for dismissal of the suit.
7. Based on the rival contentions of the parties in both the suits, the learned Trial Judge raised the following issues:
"1. Whether the defendants 1 to 4 prove that there was a partition of family properties between K.T. Narayana Reddy and K.T. Nagappa Reddy in the year 1960?
2. Whether the defendants No.1 to 4 further prove that the suit property was given to the share of K.T. Nagappa Reddy at the partition of the year 1960?7
3. Whether the defendants No.1 to 4 prove that the husband of plaintiff No.1 has represented that the suit property should be enjoyed by K.T. Nagappa Reddy exclusively for himself and thereby the husband of 1st plaintiff lost his right over the suit property?
4. Whether the plaintiffs prove that they are entitled to half share in the suit property?
5. Whether the plaintiffs are entitled to decree prayed for?
6. What decree or order?"
8. Both the suits were tried separately, however, judgment in both the suits came to be rendered by a common judgment which is impugned in these two appeals.
9. In order to prove the case of the parties in O.S.No.174/1995, the plaintiff K.N.Sananda Ganesha one of the sons of Nagappa Reddy examined himself as P.W.1. 8 He reiterated the contents of the plaint in his examination in chief and in his further examination, he has stated that since his father and his uncle (Nagappa Reddy and Narayana Reddy) had purchased the property jointly, however his father was alone enjoyed the property in exclusion to his uncle. He has further stated that his uncle was a contractor and his father possessed properties other than the suit property. It is also stated by him, that earlier to 1953 there was a oral partition between his father and uncle. In the year 1985 Narayana Reddy died and thereafter words he has given application to the revenue authorities and got the revenue entries transferred to his name.
10. In his cross-examination on behalf of the defendant who are the plaintiffs in O.S.No.215/1995 it is elicited that Lakshmamma is his aunt i.e., Narayana Reddy's wife. It is further elicited that Sy.No.124 measures 30 ½ guntas. He admits that, it was purchased 9 by his father and his uncle in the year 1953 jointly. He admits that both Narayana Reddy and Nagappa Reddy are no more. He admits that when they were alive, the property was in joint possession of Narayana Reddy and Nagappa Reddy. He admits the pendency of O.S.No.215/1995. He denies that Narayanareddy has not sold the property in favour of his father. He has answered that in the year 1995, Narayana Reddy has taken money and executed a document. He denies that Ex.P.4 is not the document where under, Narayana Reddy has sold his half share of property and the signature is found in Ex.P.4 is not the signature of Narayana Reddy. He also admits that except Ex.P.4 there is no other document to show that Narayana Reddy has sold his half share in favour of Nagappa Reddy. In his further examination-in-chief he has answered that Narayana Reddy after executing Ex.P.4, he had to execute a registered sale deed. But, before execution of such document, he died.
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11. In his further examination in chief he has also answered that the suit property was in exclusive possession of his father. In his further cross-examination, he has again answered that after purchase of the property, the khatha stood in both the names. Till both Narayana Reddy and Nagappa Reddy were there, they were in joint possession of the properties. He also admits that the RTC extracts show both the names. He also admits that before entering the RTC extract, the village accountant visited the spot and after verifying the possession, made necessary entries in the record of rights.
12. One Thimma Reddy is examined as P.W.2 on behalf of the plaintiff. He has filed his affidavit in lieu of his examination in chief. He has deposed that the purchase of the property jointly by Narayana Reddy and Nagappa Reddy and he has also stated that his uncle Narayana Reddy was not cultivating the land which had fallen to his share, as he was civil contractor by profession. 11 Since Narayana Reddy wanted finance for his contract work, he used to borrow amount from known persons and when he was in dire need of finance, he sold his portion of land through Ex.P.4. In his cross-examination, it is elicited that the partition between plaintiff and defendants must have taken place 25 years earlier to his deposition, but he has not seen any documents. He has come to know that Narayana Reddy has sold the property in favour of Nagappa Reddy about 10-15 years earlier. He has also answered that revenue records are standing in the name of plaintiff.
13. P.W.3 is one Rama Reddy. He also deposed in line with the examination in chief of P.W.2. In his cross- examination, he denied the suggestions that he is not the resident of Dodda Kannalli. He denied the suggestion that Narayana Reddy had not executed any documents in favour of Nagappa Reddy.
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14. On behalf of defendant, Sri S. Venkataswamy Reddy is examined as D.W.1. He deposed that he is the power of attorney holder of Lakshmamma and he is acquainted with the facts of the case. By filing an affidavit, he reiterated the contents of the written statement in lieu of his examination in chief.
15. He also stated that Lakshmamma has sought for half share of the property by filing O.S.No.215/1995 and sought for dismissal of O.S.No.175/1995. In his cross- examination, it is elicited that he is not having full details of the plaint averments of O.S.No.215/1995. He has answered that Lakshmamma is suffering from leg pain and there was a surgery and therefore she was not in a position to attend the Court and lead the evidence. He has denied the suggestion that he has knowledge of boundaries to the suit schedule property. However, he has answered that in the year 1953 Narayana Reddy and Nagappa Reddy jointly purchased the suit schedule 13 property. He has also stated that there are documents to show that there was a partition between Narayana Reddy and Nagappa Reddy in respect of ancestral properties. It is elicited that Narayana Reddy was doing Civil Contract work during his life time. He admits that he not given any document to show that Narayana Reddy was cultivating the suit properties. However, he has further answered that in the suit property southern half portion was being cultivated by Nagappa Reddy and Northern half portion was cultivated by Narayana Reddy. He has answered that in Ex.P.6 at Ex.P.6(a) the signature of Narayana Reddy is found. However, he denied the suggestion that Narayana Reddy has sold half portion of his land to Nagappa Reddy. He denied the suggestion that Narayana Reddy never cultivated his half portion of the land. He denied the suggestion that Ex.D.3 is executed by Narayana Reddy in favour of Nagappa Reddy.
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16. In O.S.No.215/1995, Lakshmamma - first plaintiff is examined as P.W.1. She has filed an affidavit in lieu of her examination in chief reiterating the contents of the plaint. She identified the certified copy of the sale deed between Papanna Chari, Narayana Reddy and Nagappa Reddy at Ex.P.1. She has produced certified copy of the mutation register extract at Ex.P.2 and four RTC extracts at Exs.P.3 to P6. She has also marked land revenue receipts on her behalf, Encumbrance certificate pertaining to suit property at Ex.P.9. She also marked RTC extract pertaining to the suit property in the names of the vendors at Ex.P.12 and P.13.
17. In her cross-examination it is elicited that her husband has got three brothers and all his brothers are no more. During their life time, all the brothers were living separately by dividing their ancestral properties. In such partition, her husband got 6 acres. She has stated that she has sold 3 acres of land by retaining the remaining extent 15 with her. It is further elicited that the suit property measuring 30 ½ guntas was purchased in the names of her husband and his brother Nagappa Reddy jointly and both of them died about 15 years back. It is further elicited that she has got son and daughter, but her son died about 9 years earlier. She has further answered that Narayana Reddy was indulged in agriculture and she has produced revenue records to substantiate the same. She has denied the suggestion that her husband was not doing agriculture work and he was doing contract work. She has denied the suggestion that in the year 1980 her husband received Rs.8000/- from Nagappa Reddy and gave consent to transfer the khatha in the name of Nagappa Reddy and an agreement came to be entered. She further denied the suggestion that after the death of Nagappa Reddy, on the basis of the said document, sons of Nagappa Reddy got changed khatha in their names.
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18. On behalf of defendants, defendant No.2 - K.N.Sananda Ganesh is examined as D.W.1. In his affidavit he has reiterated the contents of written statement and sought for dismissal of the suit. He has marked copy of the sale agreement at Ex.P.1 and sale deed of the year 1953 at Ex.D.2, mutation extract at Ex.D.3, certified copy of the RTC extract at Ex.D.4, certified copy of tax paid receipt at Ex.D.5, certified copy of the mutation at Ex.D.6, another RTC extract in respect of Sy.No.83/B at Ex.D.8 and certified copy of the sale deed dated 1995 at Ex.D.9.
19. In his cross-examination it is elicited that the suit property was purchased jointly in the year 1953. He admits the suggestion that khatha was mutated in joint names. He admits that Narayana Reddy has not executed any registered document in favour of Nagappa Reddy to show that the suit property exclusively belongs to Nagappa Reddy. He admits that from 1995 in respect of suit 17 property half of the portion was standing in the name of plaintiff and half of the portion was standing in the name of defendant. He has answered that Narayana Reddy has executed an agreement of sale in favour of his father and the same is produced in the suit.
20. The Trial Court after considering the above evidence on record dismissed the suit O.S.No.174/1995 and decreed the suit in O.S.No.215/1995. Against the same, appeal No.1916/2005 and 1915/2005 are filed. The grounds urged in the both the appeals are extracted hereunder:
GROUNDS IN 1916/2005
The learned Trial Judge exceeded his jurisdiction in dismissing the suit filed by the Appellant/ Plaintiff.
The learned Trial Judge while considering the materials, he has not considered, whether the respondent produced the alleged reconvey deed while getting the mutation entries in her favour.
The Learned Trial Judge has not directed the Respondent/ Defendant to produce the relevant reconvey deed 18 executed by the K.T. Nagappa Reddy and even the court has rejected to issue summons to the official witness to produce the alleged document.
The Learned Trial Judge through accepted that as per the agreement of sale entire consideration amount was paid and the appellant's father took possession.
The learned trial judge though considered that the plaintiff is in possession and enjoyment even after the execution of sale agreement, but rejected the plea taken by the plaintiff that he has not produced the RTC pertaining to the suit schedule property from 1980. It is very clear from the contention taken by the plaintiff that after purchase of the suit schedule property in the year 1953 his father alone was cultivating on behalf of the respondent's husband and the respondent's husband was a civil contractor and he was not cultivating the land personally even his property which was fallen to his share in the family partition.
The learned trial judge erred in coming into the conclusion that the plaintiff failed to prove that he is in possession and enjoyment of the same against the title prevailed on the respondent's husband and he is proved that he is in adverse possession and also proved that he has perfected his title by paying taxes to the revenue authorities, even though the said fact was aware by the 19 defendant she has not taken any steps to dispossess the plaintiff nor she filed any suit seeking declaration even her husband has not made any attempts to take possession in his life time, since he was aware that it has already sold in his brother's name Sri K.T.Nagappa Reddy in the year 1980 itself.
The learned trial judge erred in coming into conclusion that the non-production of re-convey deed is not a fatal to the case and also she has observed that the concerned revenue officials was not examined even though the plaintiff filed an application seeking permission to produce the said document through from the revenue official. When there is no existence of the said reconvey deed the plaintiff cannot produce the certified copy of the said re- convey deed. Even then the trial court erred in dismissing the suit filed by the plaintiff stating that the plaintiff has not filed the suit for specific performance.
The learned trial judge erred in coming to the conclusion that the plaintiff has not established his case proving that he is in possession and enjoyment since 1980 because the husband of the respondent purchased 20 guntas of land in the same survey number for the aforesaid reason his name was incorporated in respect of the said particular piece of land, but nowhere in the RTC mentioned that both of them jointly cultivating. However 20 the court comes to the conclusion that the plaintiff failed to prove that he is in possession and enjoyment.
The Trial judge erred to consider the facts and circumstances of the case, even though he has agreed in to that the plaintiff is in possession and enjoyment.
The trial judge passed the judgment and decree is against to the principles of natural justice.
The Memorandum of Regular First Appeal filed by the appellant is in time.
The Appellant valued the suit for the purpose of court fee and jurisdiction in the trial court for Rs.60,000/- and paid Rs.25/- u/s 7 (2) (a) of Karnataka Court fee & S.V.Act. However the suit filed by the respondent is valued Rs.1,20,000/- and she paid Rs. 200/- u/s 35(2) of Karnataka Court fee & S.V.Act seeking partition, since both the cases are clubbed and tried together and the common judgment is passed. The appellant herewith pays.200/- as court fee u/s 49 of Karnataka Court Fee & Suits Valuation Act.GROUNDS IN 1915/2005
The learned Trial Judge exceeded his jurisdiction in decreeing the suit filed by the first and second respondent.21
The learned trial Judge has clearly observed that the 1st respondent failed to produce the alleged reconveyance deed dated 20-4-1980 which was executed by K.T.Nagappa Reddy in favour of K.T.Narayana Reddy, even then he has come to the conclusion that the respondents 1 and 2 are entitled for partition.
The learned Trial Judge has not summoned the particular document relied upon by the respondents 1 and 2 and also rejected the application filed by the 1st Appellant seeking a direction that the 1st respondent should produce the said alleged documents said to have been styled as Reconveyance deed.
The learned Trial Judge even not allowed the Application filed by the 1st Respondent seeking to summon the concerned official to produce the alleged reconveyance deed which was given along with the representation by the 1st respondent to incorporate her name in the revenue records in respect of 15-1/4 guntas in Sy.No.124/1 of Doddakannahalli village. The non- examination of the official witness is fatal to the case since he is the proper person to say whether such reconveyance deed existed on the date of making an order to incorporate the name of the 1st Respondent in the Mutation extract. The very Revenue authority mutated the name of the 1st respondent in the year 1993 in respect of 30-1/2 guntas of survey No.124/1 by virtue 22 of sale agreement executed by K. T.Narayana Reddy in favour of K.T. Nagappa Reddy and the Revenue officials after enquiry in the village and after issuing of notice Rule
21 of K.L.R.Act, the same land was mutated in the name of 1st appellant without issuing any notice, the same official incorporated the name of the 1st Respondent in respect of 15-1/4 guntas in the same survey number. The learned Trial Judge has erred in coming to the conclusion that 1st appellant failed in producing the RTC and Tax Paid Receipt earlier to 1993 and also coming to the conclusion that K.T.Nagappa Reddy and K.T.Narayana Reddy jointly purchased the suit schedule property after their demise, their respective heirs are entitled for equal share.
The learned Trial Judge has not noticed that the witness deposed before the Court that the suit filed by her only to counterblast the suit filed by the Appellants seeking declaration.
The learned Trial Judge has not looked into the deposition of the 1st respondent that seeking of partition is not proper even though a suggestion made that the suit schedule property is not a joint family property for which the 1st respondent has clearly admitted in her cross examination that it was purchased by her husband along with Appellants' father jointly and also suggested that the 23 said property is not a joint schedule property for which she has admitted.
The learned trial Judge erred in coming to the conclusion that the suit schedule property in question is a joint family property. If it is so there are several joint family members are alive and they are not made as parties to the suit filed by the 1st respondent.
The learned Trial Judge did not understand the facts and circumstances of the case under which the suits filed by both the parties are clubbed, and he has given much importance to the purchase made by the brothers jointly without deciding the possession and enjoyment. That apart the RTC produced by the 1st respondent clearly shows that her husband purchased 20 guntas other than the land purchased jointly i.e. 30-1/2 guntas in the same survey number for which the Revenue authorities the name of the 1st respondent's husband in RTC. However the documents produced by the 1st respondent does not disclose that the 30-1/2 guntas are in joint possession along with the brother of the 1st respondent's husband. Even the witness is unable to give the boundaries of the suit schedule property and also in respect of 15-1/4 guntas wherein she is claiming that her husband is in possession and enjoyment.
24The learned trial Judge has not looked into the evidence of the witnesses deposed on behalf of 1st appellant. Both the witnesses examined have clearly stated that after purchase of the suit schedule property, K.T.Nagappa Reddy was cultivating personally and he was in possession and enjoyment, after his demise the 1st appellant is in possession and enjoyment continuously with out anybody's interruption till 1995 and even after 1995 the 1st appellant was not disturbed by the respondents or her husband thereby he perfected his title adverse to the title of the 1st respondent's husband. That was not considered by the Trial Judge while deciding the case.
The learned Trial Judge's order is otherwise opposed to law, facts and circumstances of the case. The Judgment and Decree of the trial Court is against principles of natural justice.
The Memorandum of Regular First Appeal filed by the Appellants is in time.
The 1st respondent valued the suit for Rs.1,20,000/- and paid Rs.200/- under Sec.35 (2) of Karnataka Court Fee and Suits valuation Act as Court-fee and accordingly the Appellants paid Rs.200/ as Court fee under Sec.49 of Karnataka Court-fees and suits Valuation Act and the same is sufficient.
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21. Reiterating the grounds urged in the above appeals, Sri M.S. Varadarajan, learned counsel and Sri M.R. Rajagopal, learned Senior counsel on behalf of the learned counsel Sri Ram Mohan contended that after the purchase of the property in the year 1953, there was a settlement between Narayana Reddy and Nagappa Reddy and whereby Narayana Reddy received a sum of Rs.30,000/- from Nagappa Reddy and executed Ex.P.4 agreement, whereby Nagappa Reddy became full owner and therefore, the impugned judgment is bad in law.
22. Sri M.R. Rajagopal also contended that since Ex.P.1 sale deed dated 1953 is silent as to what is the contribution made by Narayana Reddy and Nagappa Reddy.
23. As such, the suit for partition by wife of Narayana Reddy Smt.Lakshmamma was not at all maintainable and she should have file a suit for declaration whereby suitable written statement would have been filed. 26
24. In this regard, he drew the attention of this Court in respect of Section 45 of the Transfer of property Act which reads as under:
"45. Joint transfer for consideration.-- Where immoveable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced. In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property."27
25. To buttress his contention, he relied on the judgment of the Hon'ble High Court of Rajastan reported in AIR 1998 Rajastan 223, more particularly, paragraph No.8 and 9 which reads as under:
"8. Under Section 45 of the Transfer of Property Act, 1882 where immovable property is transferred for consideration to two or more persons jointly makes them co-owners of the property transferred, their interest are in proportion to the share of the consideration they have advanced. In the absence of evidence of share of the consideration the co-owners shall be presumed to have equal interest in the property. Co-owners have unity of possession and commencement of title in the property but does not have unity of title or unity of interest in the property. Joint owner of the property cannot be said to have title and interest in the property of another co-owner. Every joint owner has his individual title and interest in the property purchased jointly by them. Thus relinquishment of title and interest in the joint property by one joint owner in favour of another joint owner 28 would only be transfer of interest of one joint owner in favour of another joint owner, each joint owner having distinguishable, independent, individual title in the jointly purchased property.
9. The right, title and interest of Laxman Singh in the property jointly purchased cannot be said to have co-existence with the right title and interest of the petitioner in the property. The deed, although styled as a release deed, in effect, had conveyed the title and interest of Laxman Singh in the property in favour of Gyan Chand the petitioner and, thus, the release deed having been, in fact, deed of conveyance was rightly charged with the stamp-duty as deed of conveyance."
26. Based on the principles of law enunciated in the aforesaid decision, Sri M.R. Rajagopal, learned Senior Counsel contended that the Trial Court committed a grave error in dismissing the suit O.S.No.174/1995 filed by the son of Nagappa Reddy and decreeing the suit O.S.No.215/1995 filed by Smt. Lakshmamma W/o Narayana Reddy and sought for allowing the appeal. 29
27. Per contra, Sri K.P. Bhuvan learned counsel representing Smt. Lakshmamma and her daughter Smt.Rathna in both the appeals supported the impugned judgments by contending that when once the properties are purchased jointly by Narayana Reddy and Nagappa Reddy, the question of relinquishment of half share of the property in favour of Nagappa Reddy by Narayana Reddy purporting to acting under Ex.P.4 agreement which is an unregistered document cannot be countenanced in law and therefore, the suit for partition was perfectly maintainable.
28. He further contended that no defence was taken by the defendants in O.S.No.215/1995, except a simple denial that the suit is not properly valued and therefore, Trial Court did not deem it fit and raise any appropriate issue in regard to the maintainability of the suit or for that matter, the improper Court fee and thus decreed the suit of Smt. Lakshmamma and dismissed the 30 suit of K.N.Sananda Ganesh and therefore, sought for dismissal of both the appeals.
29. In view of the rival contentions, following points would arise for consideration:
1. Whether finding recorded by trial court that the plaintiffs - Smt. Lakshmamma and her daughter Rathna in O.S.No.215/1995 have made out a case for partition of their half share in the suit schedule property which has been purchased by Narayana Reddy and Nagappa Reddy is incorrect?
2. Whether the plaintiff in O.S.No.174/1995 (second defendant in O.S.No.215/1995 - K.N.Sananda Ganesh) has made out a case that Narayana Reddy during his life time has relinquished his half share in the suit schedule property by virtue of an agreement dated 30.01.1980 marked as Ex.P.4 in O.S.No.174/1995 and therefore, Lakshmamma and her daughter Rathna have no right and title over the suit schedule property?31
3. Whether the impugned judgments are suffering from legal infirmity or perversity and thus, calls for interference?
30. These points are taken up together for consideration as they are interlinked and answer to any one of the point has got a bearing on the other points.
31. In the case on hand, it is an admitted fact that Narayana Reddy and Nagappa Reddy purchased the suit property jointly vide Ex.P.1 in the year 1953. There is no dispute that revenue entries got mutated after the purchase of the land in the names of both Narayana Reddy and Nagappa Reddy. K.N.Sananda Ganesh who is the plaintiff in O.S.No.174/1995 and two other witnesses examined on his behalf in O.S.No.174/1995 clearly admit about the joint possession of Narayana Reddy and Nagappa Reddy till both died.
32. To overcome such an admission in the cross examination, P.W.1 K.N.Sananda Ganesh in 32 O.S.No.174/1995 was recalled and an explanation was sought to be provided as to the joint possession. However, in the further examination-in-chief and in cross examination, again there is a categorical admission by K.N.Sananda Ganesh that till death of Narayana Reddy and Nagappa Reddy the suit property was enjoyed by them in joint possession.
33. Admittedly the right that is claimed by K.N.Sananda Ganesh in O.S.No.174/1995 is based on an agreement of sale said to have been executed by Narayana Reddy in favour of Nagappa Reddy on 30.01.1980 which is marked as Ex.P.4 in O.S.No.174/1995. Admittedly it is an unregistered document.
34. It is settled principles of law and requires no emphasis that any relinquishment in respect of an immovable property worth more than Rs.100/- requires 33 registration, otherwise same cannot be countenanced in the eye of law.
35. No doubt, a feeble attempt is made by K.N.Sananda Ganesh stating in further examination-in- chief that Narayana Reddy had assured to execute a regular sale deed after Ex.P.4 and before such execution of sale deed Narayana Reddy died. However, on record there is no pleading or any other material as to what are all the efforts made by Nagappa Reddy to get valid sale deed executed in respect of half share of Narayana Reddy in the suit properties in favour of Nagappa Reddy. There was sufficient time gap between death of Narayana Reddy and Nagappa Reddy between 30.01.1980, date of Ex.P4. The answer given by K.N.Sananda Ganesh that Narayana Reddy assumed to execute a regular sale deed establishes that K.N.Sananda Ganesh also knew the probative value of Ex.P.4.
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36. It is found from records that P.W.1 in O.S.No.215/1995 who is plaintiff Lakshmamma was not even confronted with the document dated 30.01.1980 (Ex.P.4) and get the signature confirmed. It is only a power of attorney of Lakshmamma who is examined as P.W.1 in O.S.No.215/1995 has been confronted with Ex.P.6 which is a sale deed wherein Narayana Reddy's signature was admitted by power of attorney of Lakshmamma -Sri.Ventakaswamy R., accepted the signature and same is marked as Ex.P.6(a).
37. No efforts by the plaintiff K.N.Sananda Ganesh either in O.S.No.174/1995 or as second defendant in O.S.No.215/1995 to prove the signature found on Ex.P.6(a) and signature found in Ex.P.4 marked in O.S.No.174/1995 are one and the same. It is well settled principles of law that mere admission of signature on a particular document would not take the seat of proof of the contents of the document on its own. Further, to prove 35 the right, title and interest in the schedule property has flown from Narayana Reddy to Nagappa Reddy under Ex.P.4 no other documents are produced nor any witnesses have been examined. P.W.2 and P.W.3 who are examined in O.S.No.174/95 does not even know the contents of Ex.P.4 which is the document by which Nagappa Reddy said to have acquired the entire right, title and interest to the extent of half share of Narayana Reddy in the suit property. Revenue entries are also not helpful in this regard. All these aspects have been appreciated by the trial Judge in the impugned Judgment.
38. Admittedly any amount of oral evidence would not be sufficient to establish that Narayana Reddy has relinquished his right, title and interest in his half share in the suit property in favour of Nagappa Reddy by virtue of agreement dated 30.01.1980 marked as Ex.P.4 in O.S.No.174/1995.
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39. Further, learned Senior counsel Sri.M.R.Rajagopal representing the appellant in RFA 1915/2005 however placed reliance on the decision in the case of Gyan Chand Vs State, rendered by the High court of Rajasthan reported in AIR 1998 Rajasthan 223 cited supra. To substantiate his argument plain reading of paragraphs 8 and 9 of said decision referred to supra, it could be seen that if the parties have contributed for the acquisition of a property jointly the proportionate interest would be acquired by them. Proviso to Section 45 of Transfer of Property Act assumes importance in this regard referred to supra.
40. From the above proviso, it is crystal clear that there is no evidence on record as to what is the extent of contribution made by parties when joint purchase has taken place, the proviso prescribes for division of property equally. Thus, the legal representatives of Narayana Reddy i.e., Lakshmamma and Rathna claiming half share 37 in the suit schedule property is perfectly justified and arguments put forth by the defendant/appellant in RFA No.1915/2005 in the suit seeking partition of half share of Narayana Reddy cannot be maintained and cannot be countenanced in law.
41. Having said thus, it is also pertinent to note that there is no pleading at all in the written statement filed in O.S.No.215/1995 by the appellant in RFA No.1915/2005 that the frame of the suit is bad or proper court fee is not paid.
42. Therefore trial court was justified in not framing issues in that regard. Even in examination-in- chief of second defendant who is appellant in RFA No.1915/2005 there is no whisper that the suit is not properly framed and such a suit is not maintainable.
43. Thus in the facts and circumstances of the case and in the absence of any pleadings and proof with regard 38 to non-maintainability of the suit, in the appeal, in the light of legal issue raised of Section 45 of Transfer of Property Act, the impugned Judgment cannot be found fault with.
44. Further since it is a legal issue, this Court permitted Sri.M.R.Rajagopal, learned Senior Counsel to urge the same before this Court. Urging a ground is altogether different from recording a finding on a particular aspect of the matter. For recording a finding, pleadings and proof are necessary. In the absence of necessary pleading and proof, mere raising a ground in the appeal for the first time would not improve or advance the case of the parties.
45. Accordingly, this Court does not find any legal infirmity or perversity in recording of finding by the trial Court which are impugned in these two appeals. Since right, title and interest have flown under the agreement - Ex.P.4 dated 30.01.1980 and the said agreement is not 39 properly proved, this Court is of the considered view that half share of Narayana Reddy in the suit property ordered to be partitioned and a share is to be given to the legal representatives of Narayana Reddy is perfectly justified.
46. In view of foregoing discussion points 1 to 3 are answered in the Negative.
Accordingly, following order is passed:
ORDER Both the appeals are meritless and are hereby dismissed.
No order as to costs.
Sd/-
JUDGE MR/SBN