Karnataka High Court
Sri Ramachandra Narayan Talawar vs Kumar Soukharya on 4 April, 2017
Bench: B.S Patil, K.Somashekar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
R
DATED THIS THE 04th DAY OF APRIL, 2017
PRESENT
THE HON'BLE MR.JUSTICE B.S.PATIL
AND
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
RFA No.493/2007 (PAR)
Between:
Sri Ramachandra Narayan Talawar
S/o Narayan Talawar
Aged about 80 years, Occ: Agriculturist
R/a: Behind KMF, Lakhamanahalli,
Dharwad - 581 100
... Appellant
(By Sri T.M.Nadaf., Adv.)
AND
1. Kumar Soukharya
S/o Shankar Nayak
Aged about 15 years, Occ: Student
R/o Vivekanand Nagar, Vidyagiri,
Dharwad - 5851 100
2. Kumari Soukhya
D/o Shankar Nayak
Aged about 17 years, Occ: Student
R/o Vivekanand Nagar, Vidyagiri,
Dharwad - 581 100
(Respondents No.1 and 2 are minors represented
by their Mother and Natural Guardian respondent No.4
Smt. Girija)
2
3. Kumari Soumya
D/o Shankar Nayak
Aged about 18 years,
Occ: Student
R/o Vivekanand Nagar,
Vidyagiri, Dharwad - 581 100
4. Smt. Girija
W/o Shankar Nayak
Aged about Major,
Occ: Household Work,
R/o Vivekanand Nagar,
Vidyagiri, Dharwad - 581 100
5. Soubhagya
D/o Shankar Nayak
Aged about 24 years,
Occ: Student
R/o Vivekanand Nagar,
Vidyagiri, Dharwad - 581 100
... Respondents
(By Sriyuths S.V. Patil, M.G.Patil
& P.V.Devashetti, Advs. for R3, R4 & R5;
R1 & R2 are minors represented by R4)
This appeal is filed under section 96 of C.P.C., praying to call
for the records and set aside the judgment and decree dated
30.11.2006 made in O.S.No. 242/03 on the file of the Prl.Civil Judge
(Sr.Dn.), Dharwad, and to dismiss the suit as prayed for.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
B.S.PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT
Defendant in O.S.No.242/2003 has filed this Regular First Appeal under Section 96 of Code of Civil Procedure challenging the judgment and decree dated 30th 3 November 2006 passed in O.S.No.242/2003 by the learned Principal Civil Judge (Sr.Dn.) Dharwad.
2. The suit was filed by respondents No.1 to 5 herein. Respondents No.1 to 3 and 5 herein are children of one Shankar Nayak, whereas, respondent No.4 Girija is the wife of the said Shankar Nayak. They filed the suit seeking half share in the suit schedule properties consisting of agricultural land bearing Sy.No.40 measuring 1 acre 20 guntas situated at Lakamanahalli village in Dharwad taluk (Suit 'A' schedule property) and a residential house bearing CTS Nos.721, 722, measuring 209-03 and 6-69 meters situated at Shukrawarpeth, Kalli Oni, Dharwad.
3. Plaintiffs contended that the suit properties were originally owned by one Erappa Talawar: he died leaving behind his son Narayan: Narayan also died during the year 1961 leaving behind two sons and six daughters as his legal heirs. The two sons were Shankar Nayak and 4 Ramachandra Narayan Talawar. Ramachandra was the first son and Shankar Nayak under whom the plaintiffs claim was the second son.
4. It is the further case of plaintiffs that, after the death of Shankar, plaintiffs along with defendant Ramchandra have succeeded to the property. It is also urged that except Shanta D/o Narayana Talawar who was one of the sisters of defendant and late Shankar all others relinquished their share in the family properties. Because of such relinquishment, name of Ramchandra, Shankar and Shantavva only were entered in the suit schedule 'A' property. Shankar and Shantavva being minors, name of Ramchandra was mutated as minor guardian in the other rights and cultivators column and the same entry was continued in the records of rights. But, subsequently, only name of defendant Ramchandra and Shankar were entered as Shantavva relinquished her rights. 5
5. It is the further case of plaintiffs that, Shankar having completed M.sc. in Agriculture and having obtained Doctorate Degree was posted to Indian Agricultural Research Institute, New Delhi as a Government Servant. As he was away from Dharwad and as the defendant was carrying on all agricultural works at Dharwad, he managed to see that name of Shankar was deleted from the records in collusion with the revenue authorities behind the back of said Shankar. According to the plaintiffs there was no partition in the family and plaintiffs continued to be in joint possession of the suit schedule properties till Shankar died. It is also further asserted that a portion of schedule A property measuring 3 acres 13 guntas out of the total extent of 4 acres 33 guntas was acquired for the benefit of the Karnataka Industrial Area Development Board, Bangalore and compensation was paid to both defendant No.1 and his brother late Shankar.
6
6. Plaintiffs further asserted that even in respect of the house premises, name of Shankar was entered along with defendant No.1 but later on entries were changed by deleting name of Shankar and entry was continued only in the name of the defendant. They urged that they were in joint possession of the suit schedule house premises and were entitled to claim half share in the suit schedule properties.
7. Defendant Ramchandra Narayan Talawar appeared and resisted the suit. In the written statement he denied the allegations made by the plaintiffs and urged that there was a partition effected among the defendant and deceased Shankar and as also the sister by name Smt. Shantavva W/o Yallappa Gokavi as back as on 27.04.1988. Under the said deed both Shankar and Shantavva relinquished their respective shares in the suit 'A' and 'B' schedule properties in favour of the defendant. Consequently, name of the defendant alone was entered in 7 respect of the suit properties and the said entries were continued unabated. Other allegations and assertions made in the plaint were denied. Defendant sought for dismissal of the suit with heavy costs.
8. The trial Court framed following issues.
1. Whether the plaintiffs proves that late Shankar along with Ramchandra, the defendant were the successors in interest to deceased Fakkiravva?
2. Whether the defendant proves the partition effected among himself, his brother Shankar and sister Shantavva on 27.04.1988?
3. Whether the defendant proves that his brother Shankar and his sister Shantavva relinquished their rights in the suit properties in his favour?
4. Whether the defendant establishes that he is sole and absolute owner of the suit properties?
5. Whether the plaintiffs prove that they have ½ share in the suit properties?
6. What Order?
8
9. In support of their case, plaintiffs examined Smt. Girija W/o Shankar (plaintiff No.4) as PW.1 and produced and marked Ex.P.1 to 17. The defendant examined himself as DW.1, produced and marked Ex.D.1 to 4.
10. The trial Court having considered the evidence on record has held that plaintiffs were able to prove that Shankar Nayak and the defendant were successors in interest to the property left behind by Fakkiravva and that plaintiffs were entitled for half share in the suit schedule properties. The Court below has found that defendant failed to establish the partition dated 27.04.1988 or the fact pleaded by them regarding relinquishment of rights by late Shankar in favour of the defendant.
11. The Court below has further held that defendant failed to establish that he had become sole and exclusive owner of the suit schedule properties. The trial Court has principally come to the conclusion that documents 9 Exs.D.1 and 2 relied on by the defendant in proof of his exclusive claim over the suit properties were inadmissible in evidence, as they are not registered. It is in this background, the trial Court has held that plaintiffs were entitled for their legitimate half share in the suit properties.
12. We have heard the learned counsel for appellant Sri T.M. Nadaf. Learned counsel for the respondents is not present.
13. The learned counsel for the appellant/defendant has taken us through the oral and documentary evidence on record and as also the judgment under challenge. He principally contended that as Exs.D1 and D2 have been marked without any objection, it was not permissible for the Court below to exclude them from consideration on the ground that they were inadmissible in evidence. It is his next contention that the suit was bad for non- joinder of necessary parties, as plaintiffs did not make Shantavva as party defendant to the suit. In the 10 alternative, it is urged that even after Exs.D1 and D2 are eschewed and excluded from consideration the conduct of the parties disclosed that Shankar Nayak was a Government Servant and had gone away from the family leaving the entire properties to be enjoyed by the defendant who stayed at Dharwad looking after agricultural lands. Name of the defendant was entered in the revenue records and it was he who was in exclusive enjoyment of the same. Shankar Nayak died only in the year 2002, whereas the entries in the name of defendant was made in the year 1988 and therefore the suit filed by the legal heirs of deceased Shankar Nayak in the year 2003 was not maintainable. He urges that principle of outster will come to play so as to non-suit the plaintiffs.
14. Having examined the entire materials on record, in the light of the contentions raised, the points that arise for our consideration are;
11
(i) Whether the Court below was right and
justified in decreeing the suit for
partition by holding that prior
partition/alleged relinquishment by late Shankar and sister of the defendant Shantavva had not been proved because Exs.D1 and D2 were inadmissible in evidence?
(ii) Whether the plaintiff is entitled for partition and separate possession in the suit properties, if so to what share she is entitled?
(iii) What order? 15. Points (i) and (ii):
As both points (i) and (ii) are interconnected, they are considered together. Relationship between the parties is not in dispute. Late Shankar under whom the plaintiffs claim as his legal representatives and defendant Ramachandra are brothers. Plaintiffs are the wife and children of late Shankar Nayak. It is the case of the 12 plaintiffs that there was no partition of the family properties either during the lifetime of Shankar or after his death. Whereas, it is the case of the defendant that there was prior partition, evidenced by the documents dated 27.04.1988 produced at Exs.D1 and D2. It is also specifically pleaded by the defendant, that by the said documents Exs.D1 and D2 both Shantavva and Shankar relinquished their share in the suit properties in favour of defendant.
16. In the light of this defense taken by the defendant, it is the burden of the defendant to establish that there was such a prior partition and Shantavva and Shankar had given up their share in the joint family properties in favour of defendant.
17. We have perused Ex.D1. It is written on a stamp paper of Rs.5. Ex.D2 is written on plain paper. Ex.D1 recites that late Shankar has given up his right in the suit schedule B property in favour of the defendant. Whereas, 13 Ex.D2 recites that late Shankar and sister of plaintiffs and defendant Smt. Shantavva have given up their rights in respect of 1 acre 20 guntas of land which was left over after acquisition for the benefit of Karnataka Industrial Area Development Board, in favour of defendant.
18. If these two documents are regarded as partition deeds executed between the family members then also they are compulsorily registrable. By going through the recitals in Ex.D1 one can discern that it purports to relinquish rights of Shankar in favour of defendant. Whereas, perusal of Ex.D2 shows that both have relinquished their rights in favour of defendant. If these documents are regarded as relinquishment deeds then also they are compulsorily registrable.
19. Section 17 (1) (b) of the Registration Act 1908, states that any non-testamentary instrument which purports or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, 14 whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property shall be compulsorily registrable.
20. Section 49 of the Act deals with the effect of non- registration of documents required to be registered. It states that no document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882) to be registered shall affect any immovable property comprised therein, or confer any power to adopt, or be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.
21. Learned counsel for the appellant places reliance on the judgment of the Apex Court in the case of R.V.E. Venkatachala Gounder Vs Arulmigu Viswesaraswami and V.P. Temple and Another, (AIR 2003 SC 4548) to contend that an objection to admissibility of a document in evidence should be taken when it is tendered in 15 evidence and not subsequently. He therefore, urges that as the plaintiffs did not raise any objection regarding admissibility of Exs.D1 and D2, when they were tendered in evidence of the defendant and marked as such, it was not open for the Court below to hold that the said documents were inadmissible in evidence.
22. We have carefully considered this contention by going through the judgment in R.V.E. Venkatachala Gounder's case. The observations made in the aforesaid judgment in paragraphs 19 and 20 are usefully extracted hereunder;
"19. Order 13, R.4 of the C.P.C. provides for every document admitted in evidence in the suit being endorsed by or an behalf of the Court, which endorsement signed or initiated by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same 16 on which opinion would depend the document being endorsed as admitted or not admitted in evidence. In the latter case, the document may be returned by the Court to the person from whose custody it was produced.
20. The learned counsel for the defendant-respondent has relied on the Roman Catholic Mission v. State of Madras and another, AIR 1966 SC 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the above said case. However, the present one is a case which call for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of 17 the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit,' an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the later case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption 18 that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.19
23. It thus emerges that objection as to admissibility of a document in evidence can be classified in two classes;
(i) An objection that the document which is sought to be proved is itself inadmissible in evidence; and
(ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
24. The Apex Court has found that if the controversy refers to the inadmissibility of the document itself which would fall in first category then such an objection can be raised even at a later stage in appeal or revision. Whereas in respect of objection that falls in the second category, such objection cannot be taken unless it was raised at the stage when the document was tendered in evidence.
25. Applying the rule of fair play, the Apex Court has held that in case of objection falling in the second category if the irregularity in the mode of proof or insufficient nature of proof offered by the said document had been 20 raised by the other side initially then the party purporting to prove the document would have had an opportunity to prove the document by leading such evidence as would be permissible in law. Hence, if no objection was raised at the time when the document was tendered in evidence he cannot raise it subsequently. The omission to object in such case becomes fatal on account of his failure to raise such objection. The party tendering the evidence would proceed to act on an assumption that the opposite party was not serious about the mode of proof. This is the rational behind the distinction between the proof of documents falling under the twin categories mentioned above.
26. In the instant case, the nature of the objection to the admissibility of the document falls in the first category in as much as the transaction pertaining to relinquishment of rights being compulsorily registrable. Exs.D1 and D2, which evidence relinquishment have not been registered. 21
27. As already adverted to above, in terms of Section 17 of the Registration Act, Exs.D1 and D2 are compulsorily registrable and as per Section 49 of the said Act, if the document compulsorily registrable is not registered, it shall not be received as evidence of any transaction affecting the said property. Therefore, even though no objection was raised at the time when Exs.D1 and D2 were marked in evidence objection in this regard can be taken at any stage. In the instant case such objection has been taken before the trial Court itself at the stage of arguments and the trial Court has rightly held that these documents Exs.D1 and D2 were inadmissible. We, therefore, do not find any illegality in the approach adopted by the trial Court with regard to these vital documents Exs.D1 and D2.
28. Reliance is placed by the learned counsel for the appellant on an unreported judgment in RFA.No.3019/10 disposed of on 5.12.12 in the case of Puradayya .vs. 22 Sulochana and others. It is contended that even if the relinquishment deed is held inadmissible because it is an unregistered document nonetheless as the parties had acted upon and mutation entries had been effected exclusively in the name of the defendant in respect of the suit properties, looking at the conduct of deceased Shantavva and subsequently the conduct of the legal heirs of the plaintiffs in not claiming any right for long period of nearly 14 years, the suit for partition filed by the plaintiffs has to be held not maintainable. This contention based on the aforesaid judgment cannot be countenanced in the facts and circumstances of the present case. There are materials brought on record to show that both brothers have received the compensation amount in respect of portion of the acquired land and it is the unacquired portion, in respect whereof, the suit for partition has been filed. It is also brought on record that Shankar Nayak was a minor and name of the defendant was entered at an initial stage in the revenue records as guardian of minor 23 Shankar Nayak and subsequently, the name of defendant alone has been entered in the revenue records. That does not mean that rights of Shankar Nayak get extinguished merely because his name was deleted from revenue records. It is well established that entries in the revenue records cannot either create title or extinguish the same. Hence, this contention cannot be accepted.
29. Insofar as the contention raised regarding non- maintainability of the suit due to non-joinder of necessary parties, it is to be stated here that no such defence is taken in the written statement, on the other hand, the definite case of the defendant is that Shantavva has also relinquished her rights in favour of defendant in respect of the suit schedule properties.
30. The plaintiffs have also proceeded on the basis that Shantavva has relinquished her rights in favour of Shankar Nayak. Therefore, the essential question would be in case relinquishment deed is found inadmissible and 24 hence not proved, then what would be the extent of share to which the plaintiffs would be entitled.
31. As Exs.D1 and D2 have been held not admissible in evidence and consequently the so called relinquishment by Shankar Nayak and Shantavva of their rights in favour of the defendant is held not established then it has to follow that plaintiffs will be entitled for 1/3rd share in the family properties.
32. The other contention urged by the learned counsel for the appellant-defendant is that by application of principle of ouster, the claim made by the plaintiffs seeking partition has to be negatived. This defence is not available in the facts of the present case to the defendant. His specific plea is that there was relinquishment of right by Shankar Nayak in the joint family properties. Having taken up such a plea, the defendant cannot be now permitted to take the defence of ouster that too by way of argument without there being any foundation in the form 25 of pleading. The defence of ouster and relinquishment cannot go together. They are mutually exclusive. Hence, this argument which is advanced only for the sake of argument requires to be rejected. Accordingly, both the points raised are answered against the defendant/appellant.
33. In the result and for the forgoing reasons, this appeal is partly allowed. The judgment and decree passed by the trial Court is modified. Plaintiff is held entitled for 1/3rd share in the suit properties.
The suit is decreed granting 1/3rd share in the suit schedule properties in favour of the plaintiffs. Parties to bear their respective costs.
Sd/-
JUDGE Sd/-
JUDGE msr/sh/alb