Karnataka High Court
Sudhish Marthandarao Dandavati vs Marthandarao Rambhat Dandavati on 19 March, 2010
IN THE I-IEGI-I COURT OF KARNATAKA
CIRCUIT BENCH AT D1-IARWAD C "
DATED THIS THE 19th DAY OF MARc:~i«a.2_pi1__é'.;* if
BEFORE
THE HON'BLE MR.JUST1CE A5-S;xPP§CB.H'A4P3¥;j'3VE.3C
R.S.A.NGC;._6'84/20{V)1. %
R.s,A.No,6_85/2.001
BETWEEN:
Sudhish Ma_f'thanda'fa-O" D"a1f1.dav'.ati
Age: Majo*.','("1;)_c:C: Busines"s," I
R/o.Panch:ak'ac';heri .Cr'a11i--.," V .
At: 8:, Di$t1.::xD,hafW*a'd:.;:'~.
____ _ Appellant.
(By S'r;_.R,v;Iefé§g;1-,Cgtxcikicéate.)
........P*ND;CE
' -v._vMarCf}1andarao Rambhat Dandavati
A ~ . 'Age ::'M~aj or ,
R','ej¢.P~Iear Laxmi Narayana Temple,
,__*At;.--& Dist: Dharwad.
C ".---{Since deceased by his L.Rs.
C '~1{uA) Smt.Jaya @ Sudha W/o.Dhruvaraj
Kulkarni
Age: 56 years,
R/o.Gandhinagar,
At: 82; Dist: DharWad~580001.
(.éCVIC]i1II1OI1 in both cases).
1(B)
A'
Age: 'Ivfvajp'1*., V _
KR)'o.1\Iear"~Lax,rr1,i, Narayan Temple,
Smt.Shashika1a @ Chandrakala
W/o.Pandurang Dixit
Age: 55 years,
R/o.Saptashrung Apartments,
Dombivali East,
Mumbai--400065.
Smt.Roopaka1a
W/o.Jayaprakash Yada,t)pa:h'a,Var " A A
Age: 53 years,
R/o.Kamanakatti,; _
At: 85 Dist: Dharwvadvua-'5_800'0 V _V
Smt.Suryaka1a @ Ve.eI_i'a._ .,
W/ o.Vitha1 ra6a.Ha_rnpiho,_1i,
Age: 49 years,' " * Z
At: 85 Tq: K1I1'1§iV_a'g.Q1,vV_ A '
Dist: D.ha_rwa'd.
Indi1~abafi.. W'/' a.,..1§/Iartharxda. rao
Household Work,
A..t:' 85 ms:-:. A'D,_h--afwad.
. Madh-a_v"Marthanda rao Dandavati
__AgVe: Ma'j«0.r_,_..Occ: Business,
AR/"o~,_Near Laxmi Narayan Temple,
»._A~t':v,&vD1st: Dharwad.
Marthandarao Dandavati
_.Agei..: Major, Occ: Business,
R/o.Near Laxmi Narayana Temple,
a ,__At: 8r. dist: Dharwad.
Yashawant Shivaram Kulkarni
Nadiger
Age: Major, Occ: Business,
R/o.Near Laxmi Narayana Temple,
At: 8; dist: Dharwad.
6. Suresh Shivaram Kulkarni
Age: Major, Occ: Business,
R/o.Near Laxmi Narayana Temple,
At: 8:. dist: Dharwad.
7. Shrinivas Shivaram Kulkarni
Age: Major, Occ: Student, _
R/o.Near Laxmi Narayaniaifemple,Q.
At: 85 dist: Dharwad. ' 3 '7 '
8. Kiran Govind Kulkarni i
Now Major, '
then Minor, represented by hiS"g'dardian
Mother Ramabai Gov.i_r1d_ §{_ulkari1.i,,,
R/o.Near Lax_rri~i Narayana Temple,
At: 85 dist: Dh'a'rwa~d_.}. }
H " Respondents
{Co.:1r:1mon_if'n both cases).
(By Sri.lR,,J:§.1jjejsa§, 4A'av¢¢ate,l;f¢r R.1(A) to (D)
(sri.v~s'a1iy;;:;, E3.i'fDongre, Advo'cate, for R.2 to R.-4.)
(Sri'.,V.P,Kul1;.afn,i,"Advocate, for R.5.)
(Sri.Kris_hna 'tD_ix.ijt',__ Advocate, for R.6 and
R37.) . M
(Sri.Gan-gadhar Hos.akeri, Advocate, for R8.)
A" No.69:/2001 is filed U/8.100 cpc
' ,:.l'ag.aivnstff_the judgment and decree dated
V20]'Z['Q,OQ.i'1.,--v*passed in R.A.No.317/1989 on the
Kfile of'=tfhe,1'Prl.Dist.Judge, Dharwad, dismissing
the __vjud.lgrnent and decree dated 12/ 1/ 1988
passed in 0.S.No.5/1982 on the file of the Add}.
_ VCivii...Judge, Dharwad,
RSA No.685/2001 is filed U/S.100 CPC
against the judgment and decree dated
20/'7/2001 passed in R.A.No.319/1989 on the
file of the Prl.Dist.Judge, Dharwad, allowing the
appeal and setting aside the judgment and
decree dated 12/ 1/1988 passed in
O.S.No.5/1982 on the file of the Add]. Civil
Judge, Dharwad. 9
These Appeals coming ontfor
this day, the Court delivered the fo1lowifing;Aa._ie- C
JUDGMEKT j;
These are pAl'ai1I1ti1V'f'l~si"':..;'se.cdnd * it
appeals challenging .and..A.de§cree of
the Courts below sought for
by him seehing mesne
profits
for the purpose of
r'.
referring the parties as per
the trial Court for the purpose of
c'onv_eriie3nce. The suit property is an open site
.i bueaririig VPC No.383/4 M? measuring 1 acre 12
with the boundaries mentioned in para 1
of the plaint. So far as the parties are
concerned, the plaintiff and defendants 3 and 4
(>4
are the sons of defendants 1 and 2 and.-"the
defendants 5 to 8 are the legal representa"ti$r'.els.,
of late Shivaram to whom the first it
had alienated the suit p'riop'ertylf.lA
different lease deeds:
28/2/I962. iii i' 1 if" 5
4) It is 8.V"é.I'lT_ed_'VAblH}l:7_ that the
suit property is and that
it fell to the»l--:."1«Si__:.defendant in a
his brother in the
'wie's_terr1VllVportion i.e. the suit
properge reliefit{;pedg1i'ediiiV"s1>iare of the is: defendant
arféd. 'portion fell to the share of his
After the partition between
No.1 and his brother, it was the
Afi««rstV.__v'defendant who was the manager of the
.A _iointe----fami1y consisting of defendants No.1 to 4
was quite innocent and simpleton. The
defendant No.1 was managing the family affairs.
The innocence of the 1st defendant is said to
K
have been misused by many persons who got
executed the deeds in respect of the joint farnily
property without the knowledge of defet1'*dna«ntts
No.2 to 4 and the piaintiff and duringif-.thAe"V-'ye-apiv------if~-
1976 there was a famiiy par.tition_"hieitweein
defendant No.1 and his sons in
partition the suit prope.1f"ty. was not as * if
they had no actual pous:'s.es's_ion i "of__th.:§e suit
property though theyp«we_re.Vacfltuiaiiiowners and in
constructivetpossesisiciri ofetthe
5)_ averred that the suit
propeflrtyf is QsvitLfi.;3--ged.__i:pir1"'.important iocality of the
'C0',3V'I1_.al'1Ci 1ate"'Sh'i.varam father of defendants 5
E"'andc~.ygranidfather of the 891 defendant took
'V the' dVi:'saVd\}fa.ntage of the simpleton nature of the
13.: d,e"i'e.nfdiant and got executed the lease deeds
.ydated--:7/1/1959 and 28/2/1962 from the 1s=:
if {did-eefendant. The 2116 deed was executed after the
--Fbirth of the plaintiff on 17/1/1961 and that the
18* defendant did not execute the 2nd deed as
guardian of the plaintiff. Therefore the plaintiff
submits that the deeds are not bindin'g{:"ii"pVo'n
the plaintiff.
6) So also it is a:§'rieirr'ec1._'*t_hza;t.,iV:_"itii.ei"'i"lSf".
defendant sold the 3 1/291. gunt'asi"of lanti
the suit land to one"e«r.:EIarit:1as_1 a
Consideration the
defendant's brother % guntas of
his propei't'};.tVpp:pft'0 Bhat for an
amount" and in the
claims that the lease
deeds .__in_ Shivaram are for a
meager consideration and does not bind the
._intei'iiestV.of themiplaintiff. He submits that the
if'«r_eint-iiofvpiith'e.--:'suit property under the lease deeds
iw..asV___'fixeidi at Rs.37'5/- per annum which is very
.A pimezager amount and in the year 1959 itself the
if land was worth more than lakhs of rupees.
01/
'7) It is also averred that the 13*
defendant executed the lease deeds with an
intention to cause loss to the joint
the late Shivaram played a fraud
defendant in getting the lease.
collusion with his henchmen. 1?-_I'e~'states.:ith:at'i_"'thej
18* defendant had no 'a_u~thoriit'yV to -any = i'
such deeds in favour yofi:"an'y.bod.y"as the suit
property is the anieeist.ral -and there was
no legal n_te~cVessi=ty""t_h._ei "defendant to
exec'uit'e*-the th'e""t'ransaction is not for
the henefi-t .efIi,thLei .j_o'i-n:tV...family.
8} VUn.d5eri°.th'ese circumstances that the
if//iii.aii1'titfxhasflsought for a declaration that these
Vtyifo are null and void and that they
notiiorenate any right in favour of defendants
S and that the rental value of this property
ii the year 1959 itself was more than
Rs.10,000/-- and in this context the plaintiff
issued a notice before the institution of the suit
(>4.
ll
11) He submits that late Shivaram
assured that the terms in respect of the {lease
deed of Elkanath the brother of the 15'
will be made applicable to the
executed by him and as ther.e7._wias.__'V'aV._rent7
petition No.2/1962 p.e_ndintg:"-in
Court, Dharwad, on th'at:lV."'day h'e_l_W:.ts in hurry
and he simply sigr1ed_«"thlet-iljydocument" believing
late Shivaram and him and
fraud was"pVl:étyeti byiiith.e:"'ilé'2:ehcilitant. Later he
catrjreto' t.1:{:1I10yJv§tha't.alythe il.2_"V*'1"<iVilease deed was for a
periodllofl spite of the fact that it
was tobe"fort-.15--._:years and when he asked late
h'e'"a-ssured to get it rectified and in
the"-circ"ui'r1stances as he did not do so, he
the late Shivaram played a fraud
andvllmisrepresentation and got executed the
_ faise documents.
12) It is also his submission that the
defendants 5 and 6 are paying Rs.1,000/~ to
94
12
Ekanath though the receipts are for an amount
of Rs.500/- and that there is a separate
agreement by them with his brother
and they have also paid Rs.25,000/--f:"
separate document. In such" it
submits that the suit
them and requested toiidiecree the
13) The 2W1._ a1isto'"*fi1'ed her
written 'husband is a
simpleton. dci[esgn;ot anyi knowledge of
woridly did some acts to
causielgoss fami1y.at the instance of
otihelig andivliooking to the nature of the
Shivaram got executed the
taking undue advantage of the
in«atu_re:.iAof the 18' defendant. She states that
.e t1966~6'7 their family was quite good and it
sufficient income to maintain the family
and as the suit property was worth more than
Iakhs, there was no question of executing the
{>4
13
lease deed for a meager rent of Rs.375/~ andfor
a period of 50 years and then for a
years. She also states that there.__j
existing legal necessities." "for. the .y
execute those two lease deeds.'"__.
14) The 3rd defendant_also"file'd his own
written Stat6meV11.l;..l:"' acl_mi'ttii11_g~.,.A'"the allegations
made in theA.plaint...and r§p.¢a'{'ed"*£15;e contentions
raised by feel"; .
1- a..s.).f\['i*15*.;.:.... Nd eife-1ridia'n--ts. 5 to 8 filed the
written 4' all the allegations
made that the suit in the
pfeseizt foir"r'1:.,.i_s_p.vnot maintainable and that all
'Uthve...j0ii1.f""vfamily properties have not brought
fliintoivifhotchpot for partition. They submit
the absence of inclusion of other
it it 'properties in the hotchpot the suit cannot be
maintained.
14
16) It is his contention that the"-._lSt
defendant is a welworsed and
person frequently in connection with-._Vlit:igatio11.i
and was the head of the ffarni'ly_
affairs and he was in need._o'f_finan;ce*for'=,t'l1ye"--
maintenance of the fam'i~liyV"'-and"the: and
in such circL1in.xstanicie'sf.:i;.%i1i_enaiteid' "certain
properties for iioii.p.uii.pose. They
submitted. made
were not no prayer has been
made"i'n.i.resp:eict properties and that
the éinhstituted only with an
inptentiiointoo:cau's:e"iharassment. They have also
that--the 1*" defendant has voluntarily
V iexecu_tei,d' lease deeds in the capacity of the
the joint family and as such the
deeds';. are binding upon all the members of the
ilsiaiid family including the plaintiff.
17) It is their specific contention that the
suit land is a vacant waste land since long. It
15
was not yielding any income. It was in low lying
area where the waste water used to stagnate
and no construction for the said prope1":t:'y':.:"f»v:avs
possible without heavy investment. V'
15? defendant was not in a
amount for the same and
beneficial to the familiy'--.Lt'or_pget"' he i'
68.I'S OI1
'~'<
executed the lease iii'-_1_' 5lO'~-.
7/1/1959 on advance 123.375/-.
Later a cinema
thea'te'r huigejamount taking deep
using concrete pillars to
raise lltixep" lVeV\;j_el'~-v_iloftl the area to prevent the
=:o'1lection ofl'wva--t«e'r.
hey further contend that the brother
the defendant Ekanath Bhat also leased
to property to late Shivaram for a period of 65
and the deed was executed on 7/1/1959
and the lease deed executed by the 18':
defendant dated 7/1/1959 was to expire earlier
95
16
than the lease deed executed by Ekanath Bhat
and in the circumstances requested for fui*'t.her
extension of the period for
defendant agreed and accordingly_.e_:i:ie~.euti_edi" the
lease deed on 20/2/19e2L"fo§+t~a.
years commencing after theiV..e:§rpiry
in the first lease deedl.'V"r<s.'lTlfi'};L.»_=,y thgatlllboth
the lease dee(ii'S../,_A'weriéy'j;3?.;;§c1,ited--Vl"ifoVr legal
necessity and for the tiI;.e'_§oint family.
l9)_ 3-.._It itheiri:.ft1rt_her'lContention that the
defend'a.nitsv.[l\T.o:;'1 the plaintiff being the
jealonsyilof run by defendants 5 to
84;o'n_th(.le property have filed the present
an ulterior motive. They deny the
I rental at Rs.10,000/- in the year
l"959__'"~.a'nd market value at more than
.e VR_s..l",~O.O,00O/--. They also deny any
'~_'rn-ilsrepresentation or fraud by late Shivaram in
the execution of both the sale deeds. [>4
17
20) They further contend that the s.i.ii--t is
barred by limitation as it is not
within three years from the date of the K V'
attaining the majority and fthia"t"the\
has been issued is replied p:i=o};:)'e_rly. " ' it
21) The said filed
additional writt'enf'* 20'/8/1985
contending that right in the
property on the
suit of the additional
written jolaintiff amended his
clairnsoafar-_asfcyoiistruction is concerned by a
memo datedv_l'2t3/E3/l985. »
-v._v2~2:}«.lvii"'After the filing of the written
defendants 5 to 8 the plaintiff
stlbriiitted his rejoinder and asserted that the
it it arrangement made on Ugadi Festival of
i976 did not include the suit property as they
18
had to initiate proceedings for setting aside the
lease deed.
23) On the basis of these
trial Court has framed the fo"1H1owin.g":'""
IssUEs>__ T is
1) Whether the fee"--pita1d
proper. and
2) Whether_ _the l ..i-'proves
I dated
~ »v'z'1/is/t--;'._1. 9 en d5' 27;; /V21./M19 6 2 were
A it " eaate d- . __S h if-.raram Triyam b ak
VKti1'1;§_arin«§._:i"-J{father of the
deifie_nid.air1«tis 5 to 7 and
igrariidfather of defendant 8)
taking dis--advantage of
4'Vt'..::ir1_.nocence of the defendant 1
by practicing fraud?
a) Whether the plaintiff who
..c_o I
was neither born nor conceived
at the time of execution of
lease deed dated 7/1/1959 can
19
challenge it on the ground that
it was not for legal necessity?
3.10) If he can, whether
defendants 5 to 8 prove
the said leaseimh_deed'"""{y'a.s"- V
executed by the :*$'1ef(:",'_1'l1V'tIi':..El.'I'{'J,,'t.:
-a manager of thlegjoint
and for legal npleeessiity? '
4) Whethe1'.._the,<d'efe:1:d'ants
prove that. .def_fen'dant 1
executed 'l.eaopsel"'dle'e3d dated
13362 ="as"*r:nana.ger of the
-------- for legal
-- l
* defendants 5 to 8
provle that the suit is barred by
A. tirr1e'""for the reasons stated in
"~.t"p--ara 9(b) of their written
'gstlatement?
z "'lEg) Whether the plaintiff is entitled
to the declaration that the
lease deed dated 7/1/1959 is
not binding on his 1/5"' share
in the suit property? E :'
20
7) Whether the plaintiff is entitled
to the
declaration that the
lease deed dated 20/2/1952-f-i'*_
(registered on 28/2/1962)t;f"is--«'v.'t~.fs
not binding on his
in the suit propefptj/"?"«t A
8) Whether the gplain4tei.f:f'.15 en.t.t_;tle'd" V
to partition possesstgion if
his 1/531 sh_are_' the«.VV_sui_it
propert§{?«.
9) Whethen. 'dtb.is; s;"tti'i§ the
;~de~§eIgddetnts end "4"a.r.e entitled
V "pai'V.ti't.ioi1' of their
'i£_Tt'h_e' findings on issues
" % in the negative?
10) if whet decree or order?
_v.ii'i'e\d.dA'itional issue No.1: Whether the
proves that he is born on
V1.7/1171961 as alleged?
" It is thereafter that the defendant
was examined as PW.2 and defendant No.4
examined as PW.1, whereas the plaintiff is
examined as PW.6 and witnesses PW.3 and
eé
21
PW.5 and in their evidence EX.P.1 to P.24p"".'wpere
marked.
25) The defendants Stop 8 ii" if
to DW.3 and in their evidence ..:tl1l'C'dtilcliiifieflgtisi
Ex.D.I to D.38 were m'ar15;ed.i--l'~.. V
26) The trial cosft: llh'e'ari"ng the
counsel for the of
the materia.l;:o.n plaintiff is
not so far as
Ex.D~.l~ so far as 2nd lease
/1962 it held that the
said upon the plaintiff but
«'?¥'i~{'?.E11:"_<_§<?CVVi the"'re._l.iei" of partition and that after the
years and not 35 years as
Ex.D.2 and it declared that the
pla_i,.n"tifffiis the owner to the extent of 1/5th
it share in the suit property. So far as possession
concerned, it held that the plaintiff is
H entitled to his share in the suit property after
xsé
22
completion of 50 years on the execution of the
Ex.D.1 and 15 years under the leases-"deed
Ex.D.2.
27) Aggrieved by the judgment»
both the plaintiff and the:=,Adefen.dan.t{s..'piiesfe1jife;;f5.i
the appeals to the Dis.t'r.1'__ot
and 319 of 1989 and Court
dismissed the and
allowed thepvpappealVifi-lseliflhy'iiiclefeiiliants 5 to 8
and plaintiff for
the?!r_eilief.s\.11_.gif<.i>'d.e'e}._ara'tion, partition, etc.,.
Aggrieyed and decree of the
Low'e1f Aippe_ll'atei' Court the plaintiff has filed
appeals.
28?; [At the time of admission of these
appeialsvithe following substantial questions of
A' law have been raised.
i) Whether the finding of the
Lower Appellate Court that the
DA
23
plaintiff has failed to prove his date
of birth as 17/1/1961 is vitiatedp.-at
since the said finding was record_e-dd"-«i_i_f'~V.
ignoring the school leaving certifi:c'ate_* :_.
Ex.P.4, transfer certificate
and cumulative reco"rd.s
which are admissible eiv.ide_nce».i'ii"«-fill
under Section 35,of__theiEy'i'denc~eV'iAct?
ii) Whether the iiiovrier
Appellate Coii1'r_t vias. holding
that the suit since
no finding biy Lower
Apppe«.llat3e__.Cio'urt an..d:v-vnoiiiei/idence is
1ea'dA.i4vf,'v the said
2 iii} _ W--het'her the Lower
ii1«'xppellate__ _____ "Court was justified in
the burden of proof on the
to prove as regards the legal
ne'ic'jes's1ty to lease the suit schedule
"--property in favour of the
'respondents?
54
,3
24
29) I have heard the learned advotc'a.ites
Sri.R.V.Itagi, for the appellant'
Sri.V.P.Kulkarni, for the respondent_si"~.i:.
30) It is the conten.tio?-at..ofi'=th-ed"ieiairnetii
counsel for the ap;5e'11_ant2'~._that
Appellate Court was the
finding regardin$«.._..i:"thef.fiL of the
plaintiff though theirtr1ihi1A4fttc$th;§t'ihgld that the
plaintiffhash:?h:e_.§:r1::':stic':ciVes:.sfi1iixiinmestablishing his
birth Ihvijjviidoictlmentary evidence
andimalso of his father and that
the Court had a wrong
apgproachi tofthe facts and the decision referred
pflaintiff. It is his further contention that
. theAre.':'arie .i:G.o'vernment documents including the
transfer-,«--""certificates, cumulative records of
.Aadrni's--sion certificate of the Government Boys
iW._i'Sc.hoo1 and that the said documents are
xirelevant under the provisions of Section 35 of
the Indian Evidence Act (hereinafter referred to
06/
i' " _e5iecti.tetfi~.__
25
as 'the Act' for the sake of brevity) and in such
circumstances the Lower Appellategditi:C'o§utt..V
ignored the said documents and Sec't.ioI1:«3"5i"Moi?
the Act in rejecting the :i"inci'ing"..Aofttt:ti46_x:xti5iai"'.
Court. It T 1 it I It
31) It is his the
'kabulayat' at end"?/"i/1959
and the subseac';u.e'Vntj V e ed dated
28/2/196§2«'a:t'e xinecessity and
the has been fixed is
meager c.oi1.t_eXt_' of the value of the
propertynwhi.ehi:.'A'1v:_a's_':iniiore than Rs.10,000/-- at
t1'1;"'--" _tirné,,Wh1eni' the said documents were
viii-tt~'is his further submission that the
if'a.the_r' ofithe plaintiff i.e. the first defendant
AA had 'sufficient funds and he had sold the
'--.n"properties and was having a cash of not less
"Ethan Rs.37,000/-- at the time when these two
t4
26
documents were executed and that he had--.__sno
legal necessity for execution of these
and in such circumstances the V'
Ex.D.1 and D.2 does not
plaintiff in the suit property,__
that even on the is if
successful in estab'1ish.in'gi.lithe'-»c.absen'c-e legal
necessity and the on the
contesting. discharged
by record to prove
counsel has also
relied' of different High
Courtslliand Apex Court which will be
r:e'3fe:jr:eds_ toi'"hve.re'after. On these grounds the
' .=l'ear'n4edl_'counsel submits that his suit as prayed
decreed by allowing his appeal and
ansvirering the substantial questions of law
V lrlaised, in his favour.
33) Per contra, it is the contention of the
learned counsel for the contesting respondengtb
27
i that the plaintiff was not born on 17/1/1961
and that his birth date was not entered
Births and Deaths Register as required-.b;'.._'__'i'ajiif'.w~.
In the absence of the extract
Register the documents"
plaintiff are not sufficienti'--to'v--prove.,t'hat°';theV.fl
plaintiff was born on'i"i'e».,:l"7/1/l"96f1s.--V' is his
submission imthe udoucurnents
produced may be of the Act,
there is ;*ain5p"ie material on record to
disprov'e~mine"Ifgillegationihfthiat the plaintiff was
borne on V Hence he submits that
when theIp.lainAtviff"'"has failed to establish his
tl_ja*te_-:ofi.xbirt'h"'"as 17/1 /1961 and as the deed
V :Wa:s":..executed on 28/2/1962 on the date
plaintiff was not born, he has no
authority to question the legality or validity of
34) It is further his submission that the
documents Ex.D.1 and D.2 were executed in
54
28
favour of the 15' defendant by late Shiifaram
and that during the time of the
these documents the plaintiff
difficulties and had to
maintenance and educoationloflhis chlildviren and
in such circumstances suit was
a site which was were
latrines and the collected
and it and in such
circumsitléllritcgfii-'ls'llto: henefit from such
proptieftyAliiandl:7fpfor:i:"tVhe necessity, the let
defendant' the transaction of lease
and aslt-here_iwa's existing legal necessity and
:,_tfanxsactli'o"r1""Vwas for the benefit of the
"submits that the deed Ex.D.2 is
ilbpilndinglloin all the persons who were in
existence on the said date of document.
35) It is his further submission that if
.--7i*eally the plaintiff was born on 17/1/1961, his
name could have appeared in the documents at
Ma
30
3'?) The question as to whether§'*--.the
plaintiff was born on 17/1/1961 as
him is of utmost importance as the i«easee,d'eied.i_"i
Ex.E.2 was executed on
if the plaintiff proves his date_
is entitled to his the
Therefore to consider thte"eir:i:de'i2ce reigardiing his
birth PW.2 his i_:'tifi.i'i:l'1ii_i;.3.3iii¢_Vidence that
he moved, Registrar of
Births iair1ii..'i3"§1iat:h's:;.__:iA'}Iti'h1'i{>ADliarwad Municipal
and he requested
to is's3.1e.i_ by verifying the year
1961 his son was born on
1:_.:/;1961ua'né--------to give birth extract of his son.
V intimation given by the Registrar
Deaths wherein he informs the 15%
defendaint that in pursuance of the application
iiydiated 26/12/1984 the Birth Register for the
year 1961 was verified and they do not find the
name of the plaintiff having been born on
>4
33
40) Ex.}f3.4 is the birth certificate issued
by the Kittle College, Dharwad,
the date of birth of the plaintiff on 17] 1;/et1"9£3
Further more the plaintiffhas'producedi«_Ex;i'.t§".
a notebook and at page 1\¥oA.:4i.'.__€5i:"t_i.'1e
the plaintiff has been mife'i1tione'd..Vw.h.i=ch1:reVea1s
his date of birth 17/H1'fie.:1:49VV6i1._. E}tiP".1"7 is the
birth extract offliof the 15*
defendant. d.:.be'en'i'i'j_bio_r_n' ion 4/5 / 1967
whereaié'»4dVE13i:,§i',!:i.?"";' extract of" the son
is the intimation
by Births and Deaths
ineforrniiiriegviliiiavt eS_h'aushika1a the daughter of the
cfg.¢fe.ndant"~w--ho is said to have been born on
not been entered in the birth
."r'eidgisteif__:}:Ex.P.20 is the birth extract of
Rootdakala the daughter of the 13* defendant
on 29/12/1953. Likewise Ex.P.21 is the
birth extract of Ramachandra the son of the 1st
defendant who has born on 20/5/1956. Ex.P.2f
35
Schooi, Dharwad, in which the date of birth of
the plaintiff is mentioned as
Whereas Ex.F'.24 is the cumulatise if
maintained by the depa'ft'men*t
instructions in which the"«Vp'1aintiff'..§§
birth is mentioned as 1§61i 'these if
documents which_have*"belenhreferried-A above
and the oral evidence -the father of
the plaiatittjejhe is in this suit
will have icionsilderation to know
as plain-tiff is successful in
saaattstiagsiaijs on 17/1/1961. So
far asllthpe that has been produced by
2p'1aintiff"«is__...concerned, both the trial Court
Lower Appellate Court have not
".a'cceptejd the said document as proved.
~ Vpzis) PW.2 the father of the plaintiff states
.t_ih;his evidence that at the time of admission of
the plaintiff in the school it is he who informed
the date of birth of the plaintiff to the school
D;
36
authorities and he also asserts that the plaintiff
was born on 17/1/£961 and the horoscoj;:el:'i"s'Vg.atV.
Ex.I3'.26 and page No.26 g
particulars regarding the
He does not say in hisVevidle'nccV_zthatg'V1¢;;§
given any intimation
and deaths regar'di_ng ofllthe "nlaintiff
but states that authorities
concerned, they replied
as per he got his son
adrr1'i't'te'dl.A:':v:;¥1.l:':§t.;je gave his date of
birth.l3i_1tv'in his evidence that at
the dn_el*~glave the information to the
»r_auth'ori-t-ies he had taken Ex.P.26 the
make an entry in" the birth
.l'rlelgisteris:.'1.V_So when a person approaches the
school authorities with his children for
galdrnission generally it is not possible to
remember the date of birth of his children and
as he desires to get the admission of his child:
38
documents can also be rejected. Section of
the Indian Evidence Act reads as unde1j.:..__J"
35. Relevancy of en'tr5*f:'_ev
public (record or
record) made in perfo-rirnanc'e.'*».of"
duty.----An entry"ii_i'n.V.. any
other official book, or
or an electroiiic stating aiifact
in issue or relev__an't.,fa§:t,_:ari_dviinade by
a public vser};'ar1t::firi" .dis:c'»hiarge of
his _L--1u€+.,y;i other
pe1'i-':isiion"'v__iin:§_ of a duty
.»slpveciallyii:?e'nj'e.in-ed ib'y"the law of the
such book, register,
or (rleciord"'ior:_iiarii'electronic record) is
. _ kept', i's'itVsel'f aiirelevant fact.
*4'4)"'r~.&_So the perusal of the provision
an entry in the public or other
o1?f__ici_al* biaok, register, stating a fact in issue or
Apreleizaiit fact and made by public servant in the
'discharge of his official duty or by any other
__.person in performance of the duty is itself a
relevant fact. On this aspect of the matter the
51/
39
learned counsel for the appellant has relied
upon the decision of the Apex Court reported in
AIR 1982 Supreme Court
Chandra vs. State of Rajasthan}
Apex Court considering:---"'t'heiA'of.
Sections 35, '73 and' 74:lit'.1;éiA;i"l
documents of two x.p'u-bll_"i_cliflbslchloolsit
showing the sarriex thle"'doc§uments
would be Act. The
Apex CouritlCalsof:i'o.bs'ei:=.}l'ed that the
docu'Ine'n.t};shlduld"'~he rnaintiained regularly by a
person'._whose."id.uit«y.:li..~it is to maintain the
document t_hVe~*re is no legal requirement
thlat;>_..itlie document should be maintained by a
only. It further held that the
would be admissible U/Sec.35 and
Sections 73 and 74 of the Act. The Apex Court
iplalso observed that the entries in the school
registers were made ante litem rnotam. So in
such circumstances the Apex Court held that
BL
40
the date of birth mentioned in the school
records will be relevant U/Sec.35 of the Acts
45) The counsel also relied
1981 Supreme Court 361 {Harpal
another vs. State of Himacihtil'Prqitieshl"'§xrhVe1~'ein".
the Apex Court considerVi'nglfl the '_--v_p'rov~isio'nsV_
U/Sec.35 of the Evidence Act'---.h'e.ld_: 'the it
entry in the l7'i.1j.th made' the
concerned officiallilin his official
duties, i*{I1it1'Y is Clearly
adniissibie'._-U_jiSec--,3"E5V_of the Act and examination
of th'e,VV_officieal-is :_n~o:t"necessary. So far as this
decispionlliisiiconcerned it does not apply to the
the plaintiff has not produced
the birth register maintained by
the authorities concerned and this principle is
AA not 'applicable to those documents produced by
hi plaintiff from the school authorities.
0!.
4E
46)' The counsel also relied upon the
decision of the Apex Court reported in 2053(2)
Supreme Court Cases 186 {Desh
Raj) wherein the Apex Court
documentary evidence,
Government School, >w_heriei.ni".V_it.he
given the information his
son and the birt'h.._flregisitieirjéziria._intainiediiby the
police station alsoi it held
that such,en'tries::_co§ul.d b.e"'iie-lie_diupon to accept
thea'l'cias'taei.iip So:§Valise.pVi."thei"Apex Court taking into
considerati.on..'i':SVe'c«,i3'5¢:iof the Evidence Act held
that the'=.birth'V--.rie--giis~tier maintained by the police
..i_conce'x"ned, as per the relevant police
C ruel.e"s..:_i"tih'e:irecord being maintained as a public
i're'cord"uneder the rules in the usual course of
the~~vd'i.scharge of the official functions ought to
ilahiave been accepted by the High Court in the
proof of caste mentioned in the birth register.
This decision is also not applicable as it refers
M.
42
to the caste and the documents maintained by
the police authorities.
4?') So considering the
clown by the Apex Court inmvthe c'on't-e:Xti"of"the
documents produced, the'».__ ce_'r'tific'ate. loft" i:b--ir'tii1'
issued by the schoo1v'au.thorit.iesVinclud.i.ng.§thieoi'
cumulative records, Jiileaving
certificate, the are really
relevant to .estabi1i--sl".I4 But at
the note that the
by the high school
authorities', authorities while issuing
leaving certificate, transfer certificate or the
records are only on the basis of the
iriformation given by the 15* defendant
to 7'+.'}l'e.«i"'school authorities at the time of
., VadIn'i--sision of the plaintiff in the school in the
standard. It is this entry which is
ultimately carried on to different other schools
tyé
43
depending upon the education of the plaintiff in
different schools.
48) Per contra the learned c_o'u'r1'sT'e_:l "
respondents has relied upon
Apex court reported
Court 282 (Brij if Brat
Narain Sinha Apex Court
taking into, iiitiliieifii[provisions of
Sec.35 entry of birth
made irnaintained by an
somebody else at his
reques.tgid0eisvv..n:ot'icoriieiiiiwithin Sec.35 of the Act.
Sogalipso hielid that the entry of the date of
the school admission register it held
ifthat5.ifi:L:ac.itu'al life it often happens that persons
give ,.__fal-set age of the boy at the time of his
Aadinission to a school so that later in life he
ii'..V_VWo.i.1ld have an advantage when seeking public
xiservice for which a minimum age for eligibility
is often prescribed. The Court of fact cannot
(>5;
44
ignore this fact while assessing the value oitthe
entry and it would be improper for
base any conclusion on the basis oft"~tVhef_1entry*,--«i_
when it is alleged that the was
false information supplied. iiwith "ab.o'veV'p
motive.
49) This Court is the
Full BenchA._decis»io:n;. decisions
referred'_Vi:i3iii:$§'V' the appellant
though: years are the
Diviisiopn of the Apex Court. So
wheni't_heF'ull of the Apex Court
was of the,__iViewi'that there is a possibility of
a"«._falseWage of the boy at the time of
'V is necessary for the plaintiff to
co_nc1iisi§fely prove his date of birth as
n V17/..1=,--":'1961 and the documents which have been
ii'l.V_V'pr--oduced will have to be corroborated in
éimaterial particulars. Mere relevancy of the
documents U/Sec.35 of the Act will not lead to
M\
45
the conclusion of proof of the date of birth. It is
a fact which has to be considered
assessing the evidence and then a
will have to he arrived at. it it it
50) Now it is relevant
the interested version
PW.2 and the certificatesiiiissued.V_1:§'3z'school
authorities, therefl"'t.p_is on
record to of the
plaintiff. has been
been accepted by
the "Ii do not think that in the
second appeal: the "finding of the Courts below
altered unless there is any error
record. Further more the 19'
d«efer_1'da,rit while admitting his son to the school
AA not stated that he had taken Ex.I-'.26 along
iiawith him for the purpose of admission of the
plaintiff to the school. So also he does not say
that the date of birth of the plaintiff was in his
ode
46
memory at the time of the admission. It.n"'is_ in
such circumstances when the ]_St
informed the birth of other sons
to the Registrar of
absence of information
authorities concerned"'-:F11medi%tf'"1~}iii'; 'the
birth is also t§'i'c1o1,{bt the
veracity of the evidencei'voi"
51)" it"'is:'1'1'ecessary to note
that this are the two
"executed by the 15'
defen'd_ant /1952 after the date when
th;Ve*vp_Iainti.ffn aiso. said to have been born. But
21$' defendant while executing this document
if to the name of defendants 2 and
3;, t'§vo.Vsons who were minors at the time of
in execution of this document does not refer to the
if '-.nV'na'me of the plaintiff and no acceptable reasons
have been assigned for not mentioning the
name of the plaintiff, if really he was born on
L
47
17/1/1961. The plaintiff could have been more
than one year old at the time of exectiting
}33x.D.3 and D.13 and as he then was
the defendants 2 and 3 his
been appeared as a minozf person ::--epi~es.e_h't'gdf
by his father the 1st dye_fenda--.nt*l.as
in execution of the said°clo'cument.s}"'a5
52) Further'<--..V:l'mAo're is the sale
agreement executed-.:onV"1'9_/:§/ by the 18"
defendants oyyfiijylilariidias Bhat for a
con.:sid_eiria'ii:ii<)r1V_fiofvR's',__3'?,_()0O/-- and though this
doctiirnyeinet to the name of the
defendants_"21 3 the sons of the 15'
_d'efe:n'da'n.t's minors, does not bear the name of
'«t'hé who is said to have been born and
m_orev"th~'an one year of age at the time of
my exeicvuition of this document. So if the plaintiff
really born on 17/1/1961, the 15'
defendant who is examined as PW.2 could have
mentioned the name of the plaintiff and the fact
hi.
48
that he was a minor and that he executed the
document in the capacity of his guardia11'g:Tand
as the manager of the joint family.
of the name of the plaintiff in
referred to above, also
inference and create ag.d4ouhf..Ag"bout
the plaintiff on 'states
in his evidence vtih'a,_t one year
old at the time he did not
find it ne~c'e'ss'ary:1._to ~rne'ntio.n»V,.h.is name in the
docuni'en.t'L:g The ""e:J{p1anat'ion offered is not
satisf~'=1i<i:to'ri3'..ii V.
_53)i Furtiher rnore a clear admission is
.Vfo'unid:' in~.gthe evidence of PW.2 in para 17 that
VI:7'..-._:*is:i{L"'v,v'.iii.i':':7..,i,,iVw;éiS.i--:"executed on 19/2/1962 by the 1st
d'efendan=tAiin favour of one Haridas Bhat and
AA I?W.z2..--states that at the time of the execution of
the plaintiff was not born. Though PW.2
xiwas recalled for the purpose of cross
examination and stated that he gave this
54.,
49
answer in a confusion, the admission made by
PW.2 about the fact that the plaintiff wa'sT'not
born on the date of Ex.D.7 dated
supports the version of defendants.:5V._t'o:'8 to"
disprove the case of the
born on 17/1/1961.
54) So ultimately Court' to} accept
the ratio laid court in the
decision reported A _ vléjxpreme Court
282 Brat Narairr
Siniha _a'r1ia'i'ilotfi:e.rs',*.,:pWherein the Apex Court held
that in 'actual happens that persons
give _.fa14se»_agleloft' the boy at the time of
to a school so that later in life he
an advantage when seeking public
s«ervivce,f'or which a minimum age for eligibility
is prescribed and the Court of fact cannot
1' =.i"i-gnore this fact while assessing the value of the
entry and it would be improper for the Court to
base any concslusion on the basis of the entry,
¥'..«e
50
when it is alleged that the entry was madeffipon
false information supplied with
motive.
55) Though PW.2 has'».__be:eri l's1llJg_g'es"i:eldl:'t.ha1i._:l
he has given a false eritry for his o;o1iyve.nVie.nce -. "
considering the y_:avpprieciated
above I am the Lower
Appellate Court the date
of birth p:Eai}.1tliff_j:_4lgtellli:7'/V:I/1961 having
not beer1..p.p1%loi.3:ed--lll aside the finding
of t{he_'rle-appreciation of the
evidelnee'. committed an error
reljyinpg u.por1"t'hese 'documents and ignored the
- themilkpex Court and the possibility
the advantage of his son may
givev_va.V.i'a1se information or even may not
pgrgememlber to execute the date of birth and so as
..u=see that his son gets an admission to the
glschool may give a convenient date which
qualifies his son for admission. In that view of
b/_/
51
the matter I am of the opinion that the Lower
Appellate Court was justified in rejecting""'--the
claim of the plaintiff about his
17/1/1961. It was also justified in
school records in View of the .c'i_rcu«:tristVaVn'clesl7
referred to above and hencekthe 15? >s'_u_b'stari--<ti'all'*
question of law is answerceld. in th'e._negativve.
56) Though that the date
of birth that the vplrahinrtilffpp proved,
assuminpgl-..:vf0:r'l'tl*1.e:".tirrie his date of
birth is: question regarding the
legal"riecessitytpfo'1*A.._Te5§ecution of the deed at
EX;}I)._2 is V-.als'o' alimxatter for consideration. The
- ipfrolperty been described by the plaintiff
of the plaint which is CTS
measuring 1 acre 12 guntas and
AA thellboundaries of the suit property have been
i'--.r"m.e5ntioned therein. The eastern portion of this
glsuit property was fallen to the share of the
brother of the 1st defendant by name Ekanath.
0/K
52
The partition between the 13* defendant and his
brother took place in the year 1956 anclrtghe
eastern portion was given to
suit property was given to the sha.reii"'of't_he' 11%,'
defendant.
57) The plaintiff'i_c1.aimis'~V.that' no
legal necessity for
both dated 7/1/19.591pails;2is;!.2~[g1952. He states
that these d.ocum:ent:sijhazrge,_heein.'::".c'rieated taking
and the
theilst defendant. It is
averredpiin the the suit property was
Wrgothp iRs.1,00,000/- in the year
not have been leased by the
list for a meager amount of Rs.375/--
per So when the plaintiff has denied
Ag thezexistence of the legal necessity, it is for the
i'--.."'de.fendants 5 to 8 to establish the existence of
rithe legal necessity and the fact that the
"/~
53
document binds the members of the family of
the 15* defendant.
58) On this aspect of the
contention in the
defendants 5 to 8 and-4__.the"'additiorial.i:yirril_l;tenlii'.
statement filed by defenxdaipnts looked
into, they contend was a
vacant piece before the
transactpioivnli:.is:t'l_legaység yielding any
incomeilllfamily of the 1st
was in low lying
to stagnate and no
cQ11vstruetion's'l were possible in that area
aheavy iiii 'investments. He also contends
defendant was not in a position to
i~nve_s't any amount over the said property so as
to to "make it useful and beneficial to the family to
if -..pl'-yileld any income and as such the 15* defendant
F in the capacity of the manager of the joint
family, leased out the suit property to late
0d,.
54
Shivaram for a period of 50 years under the
registered lease deed dated 7/1/19$9w_:i..e.
Ex.D.1 on annual ground rent
payable in advance very yearr p it it it
59) Further they state
also took adjoining r L'
younger brotherof for a
period of 65 years'--ianldi--. properties
were adjoiri'ing for the
on the said
.that since the period of
leaseiopf under the lease deed
dated. 7/ll"/_1:959 'was to expire earlier than that
taken from Sri.Ekanath Bhat, late
: '«S_hiivafraV_n1.T'Vr.e'quested the 13': defendant to further
eixteiid-iii«:the period and as the 15* defendant
.l agreed, executed another lease deed dated
ii"Ay_ii'2'£l/2/1962 for a further period of 35 years
which was to commence after the expiry of 50
years the period mentioned in the lease deed
>4
55
dated 7/1/1959. So this lease deed Vdapted
28/2/1962 was duiy registered and
the rent of the premises was being
Shivaram in his lifetime a;r1'd"aft'_e'r
was defendants 5 to V8
ground rent. 9 I A T if i
60) They htaue or undue
advantage of the 1St
defendant."::7fir;ey::A__A F13' defendant
vo1unta"rily"'=aifter, consideration the
adv.antaig"e'._-Vvinitoplvedt»___th€;reunder as a prudent
maniegiecuted---i:botht._:ti'{ese two documents. 80 to
prove; the ve;<i's'iten'ceTof the legai necessity I think
i.w'ofu1VdA~.g_be reluevant to refer to the portion of
deed dated 7/1/1959. In para
o£p~e;;ai;wso.1 it is stated that the municipality
Ag phasurieserved its place airlung to mean that no
i' -..V"«co=nstruction is to be done on the said property
F and the 13' defendant states that in case if this
DA
56
property is kept vacant, he will suffer loss and
therefore entered into the transaction of
61) In para 13 of this document::'he-.lstate.s'_"e ii
that by leasing this vacant-:s'it--e.Aar1:d
ground rent he could incur °the--_ amount'~reAcei;'vevd'~._
for the maintenance' family: 'the it
children and also thA..e~ir:.ifldiucyation'manid that
therefore he has lenltere.di'»ii:nt:$c',i:_t'hi's--..transaction.
it is releVgf:111;t",_1;o executed
on 7/1,*1i'9_.5§i.i;_e:'¢j;f.é ibiirthwof the plaintiff
and controversy between the
parties at thveire'le4{ra:n't3time and the contents of
this docuiraent will have to be looked into as it
fiassible for the parties to collect any
'V at.-the time of trial and in this context
the contents and the recitals made in Ex.D.1
on arebr-elevant to consider the question of the
it 'A.Vi'e-xilstence of legal necessity. :
57
62) Further more in para 13 of the cross
examination of PW.2 i.e. the 1" defezri'd~ant
states that in the year 1959 there
latrines in the municipal property the
suit site and the scavengers used to-icleiia-ruVth'eVrn'7
and he further admits thaitniia thelfigrrpiuriicipal'3
records the suit proper'ty"l»has ibe_eIi..V-mevntiloned
as airlung to me.an..p_thatWit be vacant
without construction Aasfthie .p_e"oip_~le'_'..surrounding
will have~v"1:~o:_'--ge:t Though he
disp'uit'esi. A:1i:3l.1atl:f?';he"'s1Vj;'it in low lying area to
an extent' he admits that it is 1 --
2 feet lowp }.yi11._#gl'~a:Vrea. He also admits that in
:':'«.@i:.'1.Y sella'sve--n"the water was collected in the
t ;:ei1"},d that the municipal officials used
Water in the suit site after cleaning
the» latrines.
63) So looking to the admissions of PW.2
and his financial condition in the year 1959 he
was not in a position to use this property for
0L
58
getting more income in fact his brother Ekar1~ath
also executed the lease deed in favou:.r..ll4'Qf'_.'llate._
Shivaram leasing his property on .ea"s.tern'~ lnsiriel
for a consideration of Rs.fSlOOi/'--* per
rent. So far as suit property cono6:rn'e§:l, 'pthe '
ground rent was fixed
Looking to the iltlllisllllcrystal
clear that the property'l'vle1a:Vse§':.5y¢lilj\Ekanath was
on the been more
useful ~the 13$ defendant
lle._\l}'e'llivlarea and there was
the suit land. When an
owner properties and is in capable
----- benefit by putting up any
' putting it to better use, in such
lloireurnstianlbes if he leases the property, the
rent. that he gets is for his benefit and the
ib;e'11_tefit of the members of his family. Merely
'because that the suit property was leased for an
amount of Rs.375/-- less than the lease amount
94
59
of the deed executed by Ekanath, as.p""---the
property is on the low level, the 3
ground rent of 123.375/-- itself is
for consideration to hold that the
is meager.
64) Admittedly M was
executed in the that
time could have in the
prices of 'l'he Court can
take fact that from the
Year jarnount 20 years there
was he' prices. It is in the
recenpt da.ys'"'due to the increase in the
them use of the land for multi
: prices have gone up. It may be
b'eca3;tsee'oif this reason that the plaintiff thought
n of instituting the suit for partition and separate
it 'tppessession to claim his share looking to the fact
-Flthat subsequently the defendants 5 to 8
improved the property and at the relevant
bk
60
period it must have fetched more income than
What it was expected in the year 1959.
65) The suggestions have
other witnesses about theMvvater:'c'o'l~le'€7ti'ng_in
the suit site but they
suggestions but plead'i'gnora'n.ce, ivh.er1_.3the
suit property is on the levelh,' inference
could be drawnV't_h'a_t'i._th;e1.vv--altelr~.g»would collect
there and when thev..e}:is'tencle"v_of" latrines on
the side_Vl--_of., admitted by
PW.?_2, of water collecting from
the latrines site is also probable.
the 5th defendant and he
' iylstat---'.3_s'~iinVhis evidence about the suit site being
level and that it was not useful at
the when the deed was executed and he
if also examined DW.2 a photographer who
taken the photographs of the suit property
H and the negatives have also been produced. The
6}
perusal of these photographs reveal thatpthe
water used to collect in the suit site.
an independent witness examined by
5 to 8 who states that in the
rain water and the water:'e.cc;'_11e'cte'd
latrines, guttar, used"i_t'o-.rzstagvnate 'in suit = L'
property and that it was:iiibei'n_g 1efted_ using
water pump. So t"i.e-it .co.ns:{.1s,:te'ntevidence of the
witnesses for the""défen'dpanits'. 8 in the
context_of.. PW.2 clearly
go to""'estajbIiis:ia"--thew"-fact""'th'at the suit property
wasV"noi't_fetchilngfrnio-rep._.income, it was a useless
site whe--:ein_thei~«rrai--n water used to collect and
e'.Liso,_t1'ie_ water -------- «frorn the latrines and in such
'.'vc'ircu.rn's,t'arie.es any man of ordinary prudence
itcpo'u1d.i.niot:5;have retained this property without
ma}«:.ir1gg any benefit. It is in the context of these
_circumstances that the 1" defendant must have
igagreed to lease this property for an amount of
Rs.375/»~ per annum. May be that the said
>4
62
amount is less in the present days,;'"--.but
considering the value of the money
1959 it cannot be said that the ani.ou.nat:iiuiiarssf
meager.
67} So far as th'e'__.pro'ofi°of the or
legal necessity by the 'execute
this document :"fi_i'1.i..i§"'€1§ifeI1i€Ai1&iiv1'ltS 5 t0
8 have produced and PW.2
admits inwere two suits
pendingii 'of transaction and
_documents to prove the
instiituytpiion in Special Suit
Nc.;12/1u9i53'and.ii'this suit came to be disposed
n
- Apart from this the plaintiff
: that there are many other
A1itigajtion~"s which went upto the High Court and
AA thatrhiie had to incur expenses of the litigation.
is the receipt executed by the 1st
sidefendant for receipt of the advance ground
rent of the suit property for 2 years ie. from
04
63
1961 to 1963. Ex.D.9 is the receipt for the
period from 7/1/1963 to 6/1/1965 and. the
receipt was executed on 9/8/1961.
perusal of two documents reveal_.~that.'j'p:'----th'e._T't.
plaintiff used to take the_groun'd\-.::"'reiiit",inf
advance even for two years we_11".~ _i"So :"t.h'is_:
indicates that the 1st «"1iefenda'nti zvasiviinjrneoed of u L'
finance. Ex.D.1O is the _ri:e'ceip_»t eziciecuvtedvdiby the
Est defendant having' 'i--so2';d.i"'i:he:"sptones for an
amount of Rs_.100/-=;--v.._f V
Ex.D.11 is a letter
writteinpiby it'he'"ii1Sfiduipeitiendant putting forth the
diiffi'cu1ties"' that he is facing in respect of the
also the need for money. E)x.D.12 is
t-heft .iw:e'itten by the defendant No.1 wherein
he has-.«ii"imade a demand for an amount of
..Rs.-400./-- towards the educational expenses of
if son who was studying in B.Sc.-III. He states
Pithat in case if the amount fo Rs/$00/-- is not
given, his son wiil lose the educational career
64
for a year and therefore insisted for payment of
Rs.400/~. These letters at EX.I).11 and V.D_.»12
have been written on 7/2/1966 and
does not bear the date. So the perusal"
letters also reveal that the
the family of the Est
and it is in such in
need of money. also lailease deed
executed by the £5 28/2/1962
wherein not shown and
execVu"t'e'di.yfjgisl:7;ieeid.&V:in of late Shivaram
on grmind f}e-5;_c£_:iR..gl..i1o/--. Ex.D.l4 and p.15
are the"-.rec.e_ipts._ regarding the receipts for
of th'e""grlound rent executed by the Is:
v'vde'f€n'ci;an't.:f'1*om 1/1/1979 to 31/12/1979 and
ll/'llEfi€:980 to 31/ i2/1982.
"69) So the perusal of these letters also
it '~_lr'e'.=eal that the IS' defendant had so many other
= ..---properties and was not in a position to take the
use of the same and it is in such circumstances
(>4.
65
that he executed the lease deed of the suit
property, so that he could get some incom--é--..pfor
the maintenance of his family and to K
educationai expenses of his children.
70) Though it is stated:-blyi it
sold a property for an' -a"mounV_ti" of
and had kept the the itself
is not a criteria executed
by him in favour of Ex.D.1
and D.2 legal It is relevant
to lsfiiidefendant was having
many' vhe was not doing any
avocaption a.n'd"wa's dependant upon the income
i.:Vi"~.properties that he held for the
mai'11t4e--nianfce" of himself and his family members
and '_R_'Vl1£i,l'71A particularly the suit property which
nvpvas an open site and not used for any purpose
agreed to be taken by late Shivaram on a
giground rent of Rs.375/~ per annum and
particularly when there is a mention in the
(>4
66
document at Ex.D.1 that the lease deed is
executed for the legal necessity to
family members and to look
educational expenses, it ee:{e'et« be
stretch of imagination thatl?th"e_re wavsfno
necessity for the family."--ve.:"*t.
71) The learned coU.:nse'l..yforlthe..a.;i§pe1lant
has relied upon Axeyyieeefr.ii1g:.;;m 315 a Full
Bench ju.vdg:m._.ent:"'llliii}i:§»rle:1'rive..'.q_l't.he.::l"lllon'b1e High
Court be both for
legal neci'eé:si.ty«.yand"-...ade'quate consideration. It
also he-1ld..tha.tl of the father to alienate
thgejoyintilfarriiiy nironerty is a qualified right and
eiCp_ected to act as a prudent man. This
refers to a sale transaction executed by
the rnan,«:ager of the joint family. The principles
. l_aid"ed;own herein do not apply to the facts on
as the documents in question are the
--}lease deeds executed by the 13' defendant and
not a sale transaction. It cannot be forgotten
DC
67
that at least after the period of lease the
property has to revert back to the family of___the
1" defendant. In that view of the matter
the opinion that the principles laid it
apply to the facts on
the decision of this Court
Mysore Law Journali-....1pO 1i-t4 vs. 'V
Bharamgouda Bq.b.asah.eti.."_:'Desq.iit land .-others).
This Court in the that, where
the only ev:i'd._;enc:eW"av~a11.a'hi1ei__inyregard to the
circVu'rnis'tar1cesTf alienations were
madvepby mentioned by way of
recita1s'<.in _t'he7._ documents themselves, the
.._of ne'c'eslsity therein assumes great
"-"particularly when that recital is
ilcpolnsistletntttl with the probabilities and the
circumstances. Though he has relied upon this
_de"c.ision with regard to the provisions of Sec.35
lgof the Act to prove the school leaving certificate
the portion of this decision also relates to the
be/\
68
existence of the legal necessity and in View of
the fact that the recitals in the deed
considered as of some evidentiary va'}LieV'a.Vntd"i
the further circumstance-s"e-«probafoaiisex-they
existence of the recitals in'.Vth.e"iideie'd_dthe
necessity will have to ti)C'«.lib'0_I'1Si.C1Cw}§'8'd,_i1'$
72) Furtherithe the contesting
respondents relied of the
Apex Couet"««p:.if'eported--:.e~':ini::}i:IR.__...ii971 Supreme
Court and another vs.
Smt)vSa_n.tai'i§'3a..l_:awcD'e5n.aafh-i and others). The Apex
Courtiheld th-at*,JLhe"~-recital in the sale deed that
f1i1;i"consid'e.rVation' is paid, the onus lies on the
prove that the recital is false and
. v5end''0r'*..did_'not in fact receive consideration. So
also v--__'it-took into consideration the question
..regarding the existence of legal necessity and
that, to prove the Iegai necessity the
.---{recitals in the sale deed have the evidentiary
value. So taking into consideration the
69
principles laid down in the above said decisions
the admissions of PW.2 the evidence of the
witnesses for the defendants S to 8, I am of..___the
opinion that the Courts below have
right decision in holding that the de£¢hd§ji£'s----li
to 8 were successful in establi.shin'giiith'eL"fac.t_}Aof._
existence of le al necessit exec-ute 'vi_3th1éif
g V M
documents at Ex.D.1
'73) it is necessary ...to""n_ote 'that./§Ex.D.2
was executed in the _ac'onte§§'t thiatteiithe brother of
defe_ndant~Ti_.No:11' a sale deed for a
period.Vv_existi.ngi:e'the---._:l'e«ase deed and Ex.D.1 and
ingsnch circurrnstanices the document at Ex.D.2
iJ¢'xei'cuted Vveflztitending the lease for a further
years. In that view of the matter
the contentions and the recitals made in Ex.D.l
AA will-liave to be taken into consideration to
iidcoinsider the existence of the legal necessity
even for the document at Ex.D.2.
M;
70
74) Further more it is relevant to note
that though the plaintiff states
defendant No.1 is an innocent
man, the plaintiff himselfwpexamir1~ed'~'..:t'h:e=_1i$:f'
defendant as PW.2 to prox}-be
legal necessity. A manjwyho
Ex.D.I and 13.2 in the y§§'a§§yl19_5éii for a
valuable conside'rlat9_on~l_l§ie;iitilel:Sp.i.d/tiae witness box
and denies aboiltvihethlelpp of legal
necessityg" 3t_hJatrthel"s'uit property was
lying"o'ri'-atlfie level anldlplveads that he did not
have'_ any .firian'Cvi_al~._iproblems and the said
eVidencer.is"inc--on'sist'ent with the contents of the
docugrnents prothiced and in such circumstances
V be-'said by any stretch of imagination
defendant is either innocent or a
sirnpleton. The overall appreciation of the
A i_rn'a«teria1 placed on record clearly indicates that
lgthe suit was instituted in collusion with
defendants 1 to 4 at lease to have the benefit to
B/-
71
the extent of the share of the plaintiff, knogvvitng
'the fact that there is hike in the
suit site at the time of the institutiopn':.o'fi._thle"i
suit.
75) Insofar as th'e=.q_ues"ti_on
existence of legal neces_fisi'i"tg_ is it is
relevant to note held that
the legal necessityV--V--h_aws .and that __
fact has Appellate
Court. findings of fact of
the necessity and on this
aspect'.__of_ the the counsel for the
respondents-.ha'sC' relied upon the decision of the
reported in (2005) 10 Supreme
ConrtitéjCvas.e~sC--:"553 {Madhavan Nair vs. Bhaskar
Pi!-!_ai),_*Vfherein the Apex court held that, when
the if 'Jxppellate Court considering any
C' «,.in--ad5missible evidence concurrent of the finding
__off the trial Court the inference is not justified
even when an error on the part of the First
«>1.
72
Appellate Court in recording the finding. Even
despite an error on the part of
Appellate Court in recording the finding.
76) On this aspect
counsel for the appell»an__t
decision of the Apex Supreme
Court Cases (Minor) vs.
Seshammal)Awherein.:._the'i._fAi1?ei§§~.Vhhdyiirt held that,
the Court will not
interfere..V.Vwiiit'h! finding of the
i.s_'not an absolute rule.
Some' _ ea;e:l1'~.rie'c'.ognised exceptions are
whjverep (i) ithecourts below have ignored material
rev'ide"n'ceVi'Ao_r acted on no evidence; (ii) the courts
have»..dvrvaw;n..--v'wrong inference from proved facts
ap'pl.y:ing the law erroneously; or (iii) the
ncgourtsihave wrongly cast the burden of proof.
'~..When we refer to "decision based on no
_..evidence", it not only refers to cases where
there is a total dearth of evidence, but also
D£__
73
refers to any case, where the evidence, takenpgas
a whole, is not reasonably cap.a.ble"i-ijoif
supporting the finding.
77) Even accepting
down by the Apex conrtgg
overall appreciation of
would clearly indiiiciateg 'that.it'he..iiiiefendants 5 to
8 were 'existence of
the legal" was in
to maintain the
and-.....__educiate his children for
whictiijhie of money. The suit
property i.wa.s'"vialiieless and to get the benefit
tiCi:'11Tseg_.the for the purpose of the family
the the transaction. So considering
tih'-esev__alI.Vciircumstances I am of the opinion that
thereuiis no error or illegality committed by the
i.i'i«,,gC01iirts below in holding that the defendants 5
__.tio 8 have established the existence of legal
DA
74
necessity. In the circumstances I answer the 2"
substantial question of law in the affirmative':
78) The appreciation of the
the findings arrived at by the Courts,.ibfelo--w
clearly indicate that the .i
placed the material on record the
existence of the legal if r1»eflcessity'-- thereby
discharged the in fact the
Courts below rely of plaintiff
as well to" 'arr-live:3-.at§thei"cVoncl--usion that there
existed 'necyessity by looking into the
cross'eXamiinatlipon"'-off'"i.PW.2 the father of the
plaintiff do not think the Courts below
.hlayeE"c'orr1'rn,ittediiiiany error by placing the burden
the plaintiff to prove the legal
n'e.ces__vsity3' to lease the suit schedule property.
nI-len.c'e«:'I answer the 3rd substantial question of
in the negative holding that the Courts
V. ._.:below have not placed the burden on the
0C
76
were two appeals to the Lower Appellate Court
and the appeal of the plaintiff was
whereas the appeal of the defendants
allowed. The plaintiff couldfllhmalve
one appeal, but has filed tlwo:"appea1"slhiajr';heit
under the impression two
appeals before the-" There
was no necessity file two
appeals the Lower
Appellate"¢o1i'r'tl3l'..a.s":ijt...Tperltpailns.-- to only one suit.
In spuvch" lthefelilwas no necessity
to file-._two apj5e§}a"1.slp.'r» J
'-.81) .4111. that 'circumstances I proceed to
pass the "allowing:
ORDER
appeals are dismissed. No costs. Sd/~ EUDGE Mrk/--