U Manjunath Rao vs U Chandrashekar on 6 September, 2019

[Cites 7, Cited by 0]

Karnataka High Court

U Manjunath Rao vs U Chandrashekar on 6 September, 2019

Equivalent citations: AIRONLINE 2019 KAR 1490

Bench: H.B.Prabhakara Sastry

                                                   ®
  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 6TH DAY OF SEPTEMBER 2019

                          BEFORE

 THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

                 R.F.A.No.1626 OF 2010


BETWEEN:

U.Manjunath Rao,
S/o late Ramakrishna,
Aged about 61 years,
Resident of
Raghavendra Nilaya,
22nd Cross, 1st A Main Road,
Kempapura Agrahara
Mariyapanapalya,
Magadi Road,
Bangalore-23.                            .. Appellant

 ( By Sri R.V.Jayaprakash, Advocate )

AND:

  1. U.Chandrashekar,
     S/o Late U.Ramakrishna,
     Aged about 59 years,
     R/o No.36, 3rd Main Road,
     J.S.Nagar, Nandhini Layout,
     Bangalore - 560 096.

  2. Sri U.Raya,
     S/o Late U.Ramakrishna,
     Aged about 55 years,
                                              RFA.No.1626/2010
                               2


      Working at Kirloskar Electric
      Company, Token No.2714,
      Depot Shop No.3,
      Post Box Number 5555,
      Malleshwaram,
      Bangalore - 560 003.                 .. Respondents

 ( By Sri V.F.Kumbar, Advocate for R-1,
   Sri Kumar M.D., Advocate for R-2)

       This Regular First Appeal is filed under Section 96 of
CPC, against the judgment and decree dated 21.6.2010,
passed in O.S.No.16950/2004, on the file of the XXVIII
Addl.City Civil Judge, Mayo Hall, Bangalore, decreeing the
suit for specific performance, partition and injunction and the
appellant is restricted only to the extent of rectification deed
and permanent injunction.

      This Regular First Appeal having been heard and
reserved for judgment on 5.8.2019, coming on for
pronouncement this day, the Court delivered the following:

                         JUDGMENT

This is the 1st defendant's appeal. The present respondent No.1 as a plaintiff, had instituted a suit against the present appellant and present respondent No.2 arraigning them as defendant Nos.1 and 2 in O.S.No.16950/2004, in the Court of learned XXVIII Addl.City Civil Judge, at Mayohall Unit, Bengaluru, (hereinafter for brevity referred to as `trial Court'), and RFA.No.1626/2010 3 had sought the relief of specific performance in the form of execution of a registered Rectification Deed and in the alternate, for partition and separate possession of 1/3rd share in Schedule Item Nos.1 to 3 properties and also for permanent injunction.

2. The summary of the case of the plaintiff in the trial Court is that, himself and defendant Nos.1 and 2, are the sons of one Sri U.Ramakrishna. Defendant No.1 i.e., the appellant, is the eldest among the three to the suit. All the three were residing jointly and acquired three sites out of their joint earnings, however, those sites were got registered in the name of defendant No.1/ appellant, since he being the elder member of the family and was also the Karta of the joint family. All the three sites i.e., Site No.25, Site No.13 and Site No.16, located in Mariyappanapalya, Kempapura Agrahara, Magadi Road, Bengaluru, were purchased from out of the RFA.No.1626/2010 4 joint family funds, however, in the name of defendant No.1.

The plaintiff and the defendant Nos.1 and 2 partitioned the joint family properties i.e., Site Nos.16, 25 and 13, through a registered Partition Deed dated 28.7.1981. In the said partition `A' Schedule property i.e., Site No.16 (Schedule Item No.1 property), was allotted to the share of defendant No.1 and `B' Schedule property i.e., Site No.25 (Schedule Item No.2 property), was allotted to the share of the plaintiff. However, while preparing the Partition Deed, the Site No.25 was wrongly mentioned as `Site No.35' in the Partition Deed. Schedule `C' property i.e., Site No.13 (Schedule Item No.3 property) was allotted to the share of the 2nd defendant. The 1st defendant constructed a residential house in `A' Schedule property i.e., Site No.16 and started residing there. The plaintiff RFA.No.1626/2010 5 constructed four houses in Schedule Item No.2 property i.e., `B' Schedule property, out of his self earnings and he started residing in one house and let out the remaining three houses. Item No.3 i.e., Site No.13, which was allotted to the share of defendant No.2, was sold by him. Taking undue advantage of the typographical error in the Partition Deed in respect of the property allotted to the share of the plaintiff, the defendants refused to execute the Rectification Deed and denied the title of the plaintiff and also caused interference in the said property of the plaintiff.

The plaintiff had entered into an Agreement of Sale of the said property i.e., `B' Schedule property, in favour of one Smt.Rajamma, in which regard, he executed an Agreement of Sale on 4.9.2004. However, due to the wrong mentioning of the site number in the Partition Deed, the plaintiff was unable to execute a Sale RFA.No.1626/2010 6 Deed in favour of said Smt.Rajamma. The defendants refused to execute a Rectification Deed, as such, the plaintiff was constrained to institute the suit. The plaintiff alternatively prayed in his plaint for 1/3rd share in Schedule-`A to C' properties in case the Court comes to the conclusion that the Rectification Deed cannot be executed.

3. In response to the summons, defendant No.1 on his appearance through his counsel, filed a written statement, wherein he admitted his relationship with the plaintiff and the 2nd defendant. However, he specifically denied that all the parties were jointly residing and out of their joint earnings, they had purchased suit item properties at Schedule-`A to C' and that all those three properties were registered in the name of defendant No.1 only because he was elder among them. The defendant No.1 stated that there was no joint family RFA.No.1626/2010 7 status between the plaintiff and the defendants and that suit Schedule Item `A to C' properties were his self-acquired properties, which he had purchased from out of his income which he derived by running a canteen. He also contended that plaintiff was earning his livelihood only as a Server and as a temporary employee in a canteen situated at Kirloskar Company and was residing with the defendant No.1 till 1978. Thereafter, the plaintiff and defendant Nos.1 and 2 started living separately. That being the case, there existed no joint family status between them. The defendant No.1 also contended that the alleged Deed of Partition said to have been executed between them is a concocted document obtained by cheating defendant No.1. He also denied the allotment or partitioning of any of the property under the alleged Partition Deed said to have been entered into between them. He also denied that in the alleged process of preparing the Partition Deed, RFA.No.1626/2010 8 a typographical error has crept in by giving wrong description of the `B' Schedule property alleged to have been allotted in favour of the plaintiff. He denied that plaintiff requested them to execute a Rectification Deed in connection with the alleged Partition Deed.

The defendant No.1 also contended that since 1978, the parties are not in talking terms with each other. He denied that the plaintiff had put up construction of four houses in `B' Schedule (Schedule Item No.2 property). He also denied that the plaintiff had alienated the said property in favor of one Smt.Rajamma. On the other hand, he contended that the suit properties are still standing in his name and that the plaintiff cheated him by receiving a sum of `18,500/- with a promise that he will get three sites in Geleyara Balaga in Mahalakshmi Layout. However, by using the said amount, he got registered three sites in his name, RFA.No.1626/2010 9 but, did not repay the amount received by him from defendant No.1. The defendant No.1 further contended that even though all the three properties stand in his name, the defendant No.2, who was his younger brother, without intimating him, had sold the property, however, later when defendant No.1 came to know about it, his brother i.e., defendant No.2 sought forgiveness and stated that he was compelled to sell the property since he had debt to repay. For these reasons, defendant No.1 kept quite because of love and affection he had towards his younger brother. The said transfer of Site No.13 to the third parties by defendant No.2 was a fraudulent act and defendant No.2 himself had no title to the property. The defendant No.1 also contended that when the suit Schedule Item No.2 property was not at all the property of the plaintiff, the question of execution of a Rectification Deed by defendant No.1 would not arise. The plaintiff in order to grab the property of RFA.No.1626/2010 10 defendant No.1 and in acquiescence with defendant No.2, has filed the suit. With this, he prayed for dismissal of the suit with cost.

The defendant No.2 has not file his written statement.

4. Based on the pleadings of the parties, the trial Court framed the following issues :

1. Whether the plaintiff proves that plaintiff and defendants resided in the joint family and purchased the schedule sites in the name of first defendant?

2. Whether plaintiff proves that there was a partition of the parties among plaintiff and defendants and typographical error has crept in respect of schedule property?

3. Whether plaintiff is entitled for the relief of specific performance?

4. Whether plaintiff in the alternative is entitled for 1/3rd share in the suit schedule property?

RFA.No.1626/2010 11

5. Whether the plaintiff is entitled for the relief of permanent injunction?

6. What order or decree?

In order to prove his case, the plaintiff got himself examined as PW-1 and examined one Sri K.V.Sudharshan as PW-2 and defendant No.2 - Sri U.Raya as PW-3 and got marked documents at Exs.P-1 to P-38(a). The defendant No.1 got himself examined as DW-1 and got marked documents from Exs.D-1 to D-7.

After hearing both side, the trial Court by its judgment and decree dated 21.06.2010, answered issue Nos.1, 2 and 3 in the affirmative, issue No.5 in the negative (but it granted the relief of permanent injunction) and treated issue No.4 as would not survive for consideration and decreed the suit of the plaintiff, directing defendant Nos.1 and 2 to execute a Rectification Deed in respect of Schedule Item No.2 RFA.No.1626/2010 12 property correcting the site number as `25' in the Partition Deed dated 28.7.1981. The alternative prayer of the plaintiff for effecting division in respect of the suit schedule properties was dismissed. The defendants were permanently restrained from interfering with the peaceful possession and enjoyment of Schedule Item No.2 property of the plaintiff. It is against the said judgment and decree, the defendant No.1 has preferred this appeal.

5. This appeal earlier was dismissed by this Court at the stage of admission under the judgment dated 6.6.2014. Challenging the same, the present appellant had preferred Civil Appeal No.9951 of 2017 before the Hon'ble Apex Court. The Hon'ble Supreme Court by its judgment dated 4.8.2017, was pleased to allow the appeal and set aside the impugned judgment and decree passed by this Court on 6.6.2014 and remitted the RFA.No.1626/2010 13 matter for its fresh disposal in accordance with law. As such, the appeal has been again taken up for its fresh disposal.

6. Lower Court records were called for and the same are placed before this Court.

7. Heard the arguments of the learned counsel from both side and perused the materials placed before this Court, including the memorandum of appeal and the impugned judgment.

8. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.

9. The learned counsel for the appellant/defendant No.1 in his arguments submitted that the plaintiff ought to have filed the suit under Section 26 of Specific Relief Act, 1963 and should have sought for the relief of declaration of title and as a consequential relief, RFA.No.1626/2010 14 rectification of Partition Deed ought to have been sought for by him. He also contended that there existed no joint family between the parties to the suit. As such, the finding of the trial Court that there existed a joint family and the suit schedule properties were the joint family properties of the parties is an erroneous finding. He further submitted that Finger Print Expert's opinion is vague since it is not based upon any proper or appropriate reasoning. He submitted that the suit is barred by limitation. In his support, he relied upon some of the reported judgments of Hon'ble Apex Court and other Courts which would be referred to at the appropriate stage in this judgment.

10. The learned counsel for the respondent/plaintiff in his argument submitted that since the plaintiff has alleged that there was mutual mistake in mentioning site number in the Schedule Item No.2 property, the plaintiff RFA.No.1626/2010 15 has rightly sought for rectification of the same. Learned counsel submitted that the evidence led by the plaintiff clearly establishes the existence of joint family between the parties to the suit. With respect to the execution of the alleged Partition Deed at Ex.P-1, learned counsel submitted that presence of defendant No.1 in execution of the document is established in view of the thumb mark affixed by him to the document.

Regarding maintainability, learned counsel submitted that it is not necessary that the plaintiff to institute a suit for declaratory relief since the document at Ex.P-1 itself serves the purpose, as such, only the rectification of the document is sought. Finally, learned counsel submitted that right to sue accrued to the plaintiff only in the year 2004 when the legal notice was issued. As such, the suit filed is within the period of limitation.

RFA.No.1626/2010

11. In the light of the above, the points that arise for my consideration are :

1) Whether the suit filed for the relief of rectification is maintainable?

2) Whether the plaintiff has proved that he along with defendant Nos.1 and 2 have constituted a joint family?

3) Whether the Schedule Item Nos.1 to 3

properties are the joint family properties of the parties to the suit?

4) Whether the plaintiff has proved the partition of the suit schedule properties among the parties to the suit as per Ex.P-1?

5) Whether the plaintiff is entitled for the relief of rectification as sought for?

6) Whether the judgment and decree under appeal deserves any interference at the hands of this Court?

12. It is an admitted fact that the plaintiff and defendant Nos.1 and 2 are brothers, among whom, RFA.No.1626/2010 17 defendant No.1 is the elder and the 2nd defendant is the youngest. According to DW-1, he came to Bengaluru in the year 1975, whereas, PW-1 contends that, DW-1 came to Bengaluru in the year 1970. Further, DW-1 contends that his two brothers i.e., plaintiff and defendant No.2 came to Bengaluru in the year 1980, whereas, PW-1 in his cross-examination has stated that he also came to Bengaluru with other family members in the year 1971. However, the fact remains that all the three properties, about which the reference is made in Ex.P-1 and including the suit schedule properties, were acquired in the year 1978 and 1980. Thus, all the three sites were acquired subsequent to the parties to the litigation having arrived at Bengaluru and settled here.

13. The plaintiff has contended that, with respect to three sites which are the Schedule Item Nos.1, 2 and 3 sites, a registered Partition Deed was entered into RFA.No.1626/2010 18 between them on 1.4.1981, wherein, Schedule Item No.2 property was given to his share. However, while describing the site number, instead of showing site number as `25', it was wrongly mentioned as `35', as such, seeking rectification of the same, he has instituted the present suit.

14. The first contention of the learned counsel for the appellant was that the present suit is not maintainable, rather, the plaintiff ought to have filed a suit seeking declaration of his title and consequentially, rectification could have been sought. It is also his contention that the suit ought to have been filed under Section 26 of Specific Relief Act.

The present suit is filed under Schedule-I, Section 26 Order VII Rule 1 of Code of Civil Procedure (Amendment) Act, 2002. The relief sought for in the suit are mainly a direction for defendant Nos.1 and 2 to RFA.No.1626/2010 19 execute a registered Rectification Deed, rectifying the `Site No.35' as `Site No.25' in `B' Schedule of the registered Partition Deed dated 28.7.1981, pertaining to Item No.2 of the suit schedule properties. In the alternative, to effect partition and separate possession of 1/3rd share to the plaintiff in Item Nos.1 to 3 of the suit schedule properties. The plaintiff has also sought for the relief of permanent injunction. No doubt, in the title of the plaint, the plaintiff has not mentioned that the suit is instituted under Section 26 of the Specific Relief Act, 1963, but, claimed the relief of rectification. No doubt, Section 26 of the said Act speaks as to when an instrument may be rectified. However, merely because in the title of the plaint, the plaintiff has not mentioned the provision under Specific Relief Act, by that itself, it cannot be held that suit filed by the plaintiff seeking rectification of the alleged Partition RFA.No.1626/2010 20 Deed dated 28.7.1981 pertaining to Item No.2 of the suit schedule properties is not maintainable.

In view of the fact that the main relief sought for by the plaintiff in his suit is for rectification of the Partition Deed dated 28.7.1981 and since the burden of proving the execution of the said Partition Deed is also upon the plaintiff, it is not necessary that the plaintiff should have sought the relief of declaration of his title and only then, sought the relief of rectification of alleged Partition Deed. Though the learned counsel for the appellant/defendant No.1 canvassed a point that Section 26 of the Specific Relief Act is not applicable unless fraud or a mutual mistake on the part of the parties to the contract or to an instrument in writing is alleged, however, the very contention of the plaintiff is that it was by mistake, the `Site No.25' has been wrongly shown as `Site No.35' in the alleged Partition Deed RFA.No.1626/2010 21 dated 28.7.1981. As such, the first argument of the learned counsel for the appellant/defendant No.1 that the suit filed by the plaintiff for the relief of rectification was not maintainable, is not acceptable.

15. The contention of the plaintiff, as well his evidence as PW-1 is that, himself and defendant Nos.1 and 2 have resided in a joint family and had acquired three sites out of the earnings of the joint family and got registered those three sites in the name of defendant No.1 since he being elder to the plaintiff and the 2nd defendant and also Karta of the joint family. According to him, Site No.16 and Site No.25, which are the suit Schedule Item Nos.1 and 2 properties, were purchased under registered Sale Deed dated 9.6.1978 and Site No.13, which is suit Schedule Item No.3 property was purchased under a registered Sale Deed dated 24.9.1980. All the three sites were registered in the RFA.No.1626/2010 22 name of defendant No.1 and the original documents of title are in the possession and custody of defendant No.1. PW-1 specifically contended that the source of fund for acquiring all these three sites were the joint family earnings, which joint family constituted himself and his brothers i.e., defendant Nos.1 and 2. However, since defendant No.1 was the eldest among them and also the Karta, the Sale Deeds were registered in his name. It is his further contention that all the three of them have partitioned the joint family properties i.e., suit Schedule Item Nos.1, 2 and 3 sites under a registered Partition Deed dated 28.7.1981 in the presence of the witnesses.

He has further contended that the original Partition Deed was agreed to be in the custody of defendant No.1 and the registered copies of the Partition Deed were agreed to be retained by the plaintiff and the RFA.No.1626/2010 23 2nd defendant. According to the plaintiff/PW-1, in the said registered Partition Deed, which he has exhibited and got marked at Ex.P-1, while mentioning the details of the property that was given to the share of the plaintiff, the site number was by mistake mentioned as `35' instead of `25'. As such, a Rectification Deed is required to be executed. According to him, the remaining two sites i.e., suit schedule Item Nos.1 and 3 were allotted to the shares of defendant Nos.1 and 2 respectively and that, in the suit schedule Item No.2, which had gone to his share, the plaintiff has put up construction and is in occupation and possession of the same. He has also called that the said mis-description of the site number in the Partition Deed was also due to typographical error. Since the defendants refused to execute any Rectification Deed, he was constrained to institute the suit.

RFA.No.1626/2010

In his support, the plaintiff got marked the alleged Partition Deed dated 28.7.1981 at Ex.P-1, two Rental Agreements at Ex.P-2 and Ex.P-3, NIL Encumbrance Certificate at Ex.P-4, Electricity bills said to be belonging to the rental premises at Exs.P-5 to P-13 and the Electricity bill and a receipt said to be belonging to the house where he is residing at Exs.P-14 to P-22, Water bills at Exs.P-23 to P-33, a copy of the police complaint said to have been registered against the 1st defendant at Ex.P-34 and an endorsement given by the police in connection with Ex.P-34, was marked at Ex.P-35. He also got marked a copy of the legal notice said to have been issued on his behalf to the defendants at Ex.P-36, a reply to the said notice sent on behalf of defendant No.1 at Ex.P-37 and the returned postal cover said to have been sent to defendant No.2 with the notice in it at Ex.P-38 and Ex.P-38(a) respectively.

RFA.No.1626/2010

16. PW-2 is one Sri K.V.Sudharshan, who has stated that, he knows both parties to the suit and that he was the witness to the registered Partition Deed dated 28.7.1981. One Sri Mariyappa was also witness to the said document. The said witness has stated that the plaintiff and defendant Nos.1 and 2 partitioned the family properties through the said registered Partition Deed, which came to be registered on 28.7.1981. At that time, apart from the parties to the Agreement, himself, another witness Mariyappa, the scribe - Sri M.Lakshmana, were all present in the office of Sub-Registrar, Srirampuram, Bengaluru City. He also stated that plaintiff and both the defendants have signed the registered Partition Deed after reading it and in his presence. The witness has identified the said Partition Deed at Ex.P-1 and his signature therein at Ex.P-1(a).

In his cross-examination, though he has stated that he was working along with the plaintiff and RFA.No.1626/2010 26 defendant No.2 in the canteen of Kirloskar Company, as such, he is acquainted with them, but, he denied that he has given false evidence in the Court.

17. Defendant No.2 - Sri U.Raya was examined as PW-3 by the plaintiff, who, in his examination-in-chief in the form of affidavit evidence, has stated that, suit Schedule `A' to `C' properties are joint family properties purchased and earned by himself, plaintiff and defendant No.1. He also stated that all the three persons partitioned the said joint family properties under registered Partition Deed dated 28.7.1981 in the presence of the witnesses Sri K.V.Sudarshan and Sri Mariyappa. He also stated that `C' Schedule property mentioned in the registered Partition Deed dated 28.7.1981 fell into his share and he has sold the said property. `A' Schedule property was fallen to the share of defendant No.1 and `B' Schedule property RFA.No.1626/2010 27 fallen to the share of the plaintiff. He has identified the said document at Ex.P-1 and stated that each page of the said document bears his signature.

He was subjected to a detailed cross-examination, wherein he adhered to his original version.

18. The defendant No.1, who was examined as DW-1, in his examination-in-chief in the form of affidavit evidence has reiterated the contentions taken up by him in his written statement. He has stated that he came first to Bengaluru, followed by his two brothers i.e., plaintiff and the 2nd defendant. It was he who looked after those two brothers and got them Teachers' Training and made them to join Kirloskar factory. He also stated that, both his brothers have kept their salary in their own bank account and neither of them have helped him to purchase the suit property. He specifically stated that the suit schedule properties are RFA.No.1626/2010 28 his self-acquired properties purchased from his own income. He categorically stated that there was no partition which is alleged by the plaintiff and that there is no joint family property between the parties. He has termed the said document of partition as a fabricated document prepared by the plaintiff in connivance with the 2nd defendant so as to harass him and grab the property belonging to him. He also stated that he has never gone to the Sub-Registrar's office nor has signed the alleged document. He also stated that he usually signs as `U.Manjunatha Rao' and not as `Manjunatha' and he always been called as `U.Manjunatha Rao'. He has stated that the suit Schedule `A' and `B' properties are in his possession ever since the date of its purchase. He also stated that the plaintiff has never been a resident of `B' Schedule property and he has created the document called as a Sale Agreement just to bring about third party interest and to grab the property. RFA.No.1626/2010 29 He further stated that the 2nd defendant misled him as he believed in his brothers and he cheated him and took some signatures on some papers stating that they were taking loan from some financial institution on the property. He categorically stated that, neither there is any Partition Deed executed by him nor there is any mistake which the plaintiff claims. He also stated that the 2nd defendant cheated him by selling `C' Schedule property and thereafter, he has sought forgiveness. He stated that the Electricity bills and Water bills are not concerned with the Schedule property.

The witness has also stated that the plaintiff had taken a sum of `18,500/- from him, promising to purchase three sites in Geleyara Balaga in Mahalakshmi Layout, in the name of this witness. Further, even though the plaintiff purchased the sites, but, the same was in his name, but, not in the name of this witness. RFA.No.1626/2010 30 He categorically stated that, except him, nobody has got any right or title over the suit Schedule `A' and `B' properties and there was no question of partition as there was no joint family at all. In his support, he has produced the original Sale Deed with respect to suit schedule properties and got it marked at Ex.D-1, three tax paid receipts from ExS.D-2 to D-4, Encumbrance Certificate at Ex.D-5, Katha Extract at Ex.D-6 and a copy of the police complaint said to have been registered by him at Ex.D-7.

This witness also was subjected to a detailed cross-examination, wherein he adhered to his original version.

19. In the light of the above evidence of the parties, it was the argument of learned counsel for the appellant/defendant No.1 that, except self-serving oral evidence of PW-1 and PW-3, there is no other material RFA.No.1626/2010 31 to show that there was any joint family between the parties to the suit and that the suit schedule properties were acquired from out of the joint family funds, as such, they were joint family properties. He also submitted that, admittedly when there was partition among all the brothers, including four other brothers, who reside in a different place, during the lifetime of their father and the land has been divided among themselves, there is already division in the joint family property, as such, there cannot be any joint family between the parties to the present suit. He also submitted, the alleged Partition Deed at Ex.P-1 is shown as 1.4.1981, but, it is registered on 22.7.1981, whereas, PW-2 says that, Ex.P-1 was executed on 22.7.1981 in his presence. Therefore, the evidence of PW-2, who has not signed Ex.P-1, is not believable.

20. In his support, he relied upon two judgments of Hon'ble Apex Court. The first judgment is in the case RFA.No.1626/2010 32 of D.S.Lakshmaiah and another -vs-

L.Balasubramanyam and another, reported in { (2003) 10 SCC 310}. In the said case, the Hon'ble Apex Court in Paragraph-9 of its judgment was pleased to refer to a case in Appalaswami -vs- Suryanarayanamurti, reported in AIR 1947 PC 189, and pleased to observe that, proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But, where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.

RFA.No.1626/2010

Further, in the same judgment at Paragraph-18, the Hon'ble Apex Court was pleased to observe as below:

" 18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.

The second judgment relied upon by the learned counsel for the appellant is in the case of Appasaheb Peerappa Chamdgade -vs- Devendra Peerappa RFA.No.1626/2010 34 Chamdgade and others, reported in { (2007) 1 SCC 521}, wherein at Paragraph-17, the Hon'ble Apex Court was pleased to observe that, there is no presumption of a joint Hindu family, but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence.

With the aid of above judgments, learned counsel for the appellant submitted that since there was already a partition in the family, there cannot be any constitution of joint family among the parties to the suit, excluding the other male members of the family. He also submitted that since the plaintiff has failed to prove RFA.No.1626/2010 35 that source of fund for the purchase of suit schedule sites were from the nucleus of the joint family, the contention that the suit schedule properties were joint family properties has not been established.

21. Learned counsel for the respondent/plaintiff in his argument submitted that, according to defendant No.1, somewhere between 1980 to 1983, defendant No.2 sold the suit schedule `C' property. Therefore, unless there was partition as per Ex.P-1, defendant No.2 could not have become the owner of the property nor could able to sell it. As such, it is established that there existed a joint family between the parties to the suit and all the suit schedule properties were joint family properties of the three brothers, who are the parties to the suit.

22. Mulla in his writings on Hindu Law, in 'Mulla Hindu Law', 22nd Edition, 2016, By Lexis Nexis Publications, at Page-533, has observed that, a reunion in RFA.No.1626/2010 36 estate properly so called, can only take place between persons who were parties to the original partition. In Basanta Kumar Singha and another -vs- Jogendra Nath Singha and others, reported in 1905 SCC Online Calcutta 76, a Division Bench of Calcutta High Court was pleased to observe that, under the Hindu Law, as laid down in the Mitakshara, there cannot be a valid re-union between two first cousins who were originally joint, but, had subsequently separated. However, it opined that, according to the Mitakshara, there can be a re-union between brothers.

The Nagpur High Court in the case of Nanuram Aiden Maheshri and others -vs- Radhabai, w/o Kison and another, reported in AIR 1940 Nagpur 241, was pleased to observe that, only males in a Hindu family once separated that can re-unite and only within a limited range.

RFA.No.1626/2010 37

The Hon'ble Apex Court in Bhagwan Dayal (since deceased) and thereafter his heirs and legal representatives Bansgopal Dubey and another -vs-

Mst.Reoti Devi (deceased) and after her death, Mst.Dayavati, her daughter, reported in AIR 1962 SC 287, has elaborately discussed on the point of presumption of partition under Hindu joint family and its re-union in Paragraphs, 16, 22 and 47 of its judgment, the extract of which are reproduced here below :

" 16: The general principle is that every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course of conduct. It is also settled that there is no presumption that when one member separates from others that the latter remain united; whether the latter remain united or not must be decided on the facts of each case. To these it may be added that in the case of old transactions when no contemporaneous documents are maintained and when most of RFA.No.1626/2010 38 the active participants in the transactions have passed away, though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps more readily by reasonable inferences than in a case where the evidence is not obliterated by passage of time."

" 22: ......... if a Hindu family separates, the family or members of it may agree to reunite as a Hindu family, but such a reuniting is obvious reasons, which would apply in cases under the law of the Mitakshara, very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved. The leading authority for that last proposition is Balabux Ladhuram v. Rukhmabai, 30 Ind App 130 (PC).

It is also well settled that to constitute a reunion there must be an intention of the parties to reunite in estate and interest. It is implicit in the concept of a reunion that there shall be an agreement between the parties to reunite in estate with an intention to revert to their former status of members of a joint RFA.No.1626/2010 39 Hindu family. Such an agreement need not be express, but may be implied from the conduct of the parties alleged to have reunited. But the conduct must be of such an incontrovertible character that an agreement of reunion must be necessarily implied therefrom. As the burden is heavy on a party asserting reunion, ambiguous pieces of conduct equally consistent with a reunion or ordinary joint enjoyment cannot sustain a plea of reunion. ......."

" 47 : ..........Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent express or implied of the members of the family, any other member or members can on business or acquire property, subject to the limitations laid down by the said law, for or RFA.No.1626/2010 40 on behalf of the family. Such business or property would be the business or property of the family. The identity of the members of the family is not completely lost in the family. One or more members of that family can start a business or acquire property without the aid of the joint family property, but such business or acquisition would be his or their acquisition.

The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or their self-acquisition, and succession to such property would be governed not by the law of joint family but only by the law of inheritance. In such a case, if a property was jointly acquired by them, it would not be governed by the law of joint family; for Hindu law does not recognize some of the members of a joint family belonging to different branches, or even to a single branch, as a corporate unit. Therefore, the rights inter se between the members who have acquired the said property would be subject to the RFA.No.1626/2010 41 terms of the agreement whereunder it was acquired. The concept of joint tenancy known to English law with the right of survivorship is unknown to Hindu law except in regard to cases specially recognized by it. In the present case, the uncle and the two nephews did not belong to the same branch. The acquisition made by them jointly could not be impressed with the incidents of joint family property. They can only be co-sharers or co-tenants, with the result that their properties passed by inheritance and not by survivorship."

A Division Bench of this Court in the case of M/s.Paramanand L. Bajaj, Bangalore -vs- The Commissioner of Income Tax, Karnataka, II, Bangalore, reported in ITR 1981 Kar 1219, in Paragraph-12 of its judgment was pleased to observe as below :

" 12: ......... The provision for reunion has been provided for, for enabling erstwhile members of RFA.No.1626/2010 42 a Hindu undivided family, to come together and to form once again a joint family governed by Mitakshara law. The mutual love, affection arising from blood relationship and the desire to reunite proceeding therefrom, constitutes the very foundation of reunion. This is evident from the text of Brihaspati in which even the relationship of persons who could reunite is specified though some of the commentators have taken the view that it is only illustrative and not exhaustive and that reunion is possible even among persons not specified in the text of Brihaspati. (See : Virmitrodaya, translated by Gopalachandra Sarkar (1879) pp 204-205; Vivadachintamani Gaekwad's Oriental Series Vol.XCIX pp 288-289). But even so there is no controversy that reunion is possible only among persons who were on an earlier date members of a HUF. Reunion therefore is a reversal of the process of partition. Therefore, it is reasonable to take the view that reunion is not merely an agreement to live together as tenants in common, but is intended to bring about a fusion in interest and estate among the divided members of an erstwhile HUF so as to restore to them the status of HUF once again and RFA.No.1626/2010 43 therefore reunion creates right on all the reuniting coparceners in the joint family properties which were the subject matter of partition among them to the extent they were not dissipated away before the date of reunion."

In the very same judgment, this Court was pleased to observe in Paragraph-16 that, it is well settled that, a partition of a Hindu undivided family can be effected orally and it follows that parties to such oral partition, can reunite also with mutual consent without the requirement of any registered Deed of reunion. If, however, earlier partition was by a registered Deed, the reunion which follows it, to be valid in law, must also be effected by means of a registered Deed.

23. In the light of the above judgments, it is clear that there is no bar under Hindu Law for reunion of a Hindu family making it a joint family, which joint family was earlier divided. However, such a reunion in RFA.No.1626/2010 44 Mitakshara appears to be a very rare occurrence and when it happens, it must be strictly proved as any other disputed fact is proved. Most important is that, to constitute a reunion, there must be an intention of the parties to reunite in estate and interest. It is implicit in the concept of a reunion that there shall be an agreement between the parties to reunite the estate with an intention to revert to their former status of a member of a joint Hindu family. Generally, such an agreement need not be express, but, may be implied from the conduct of the parties alleged to have reunited. But, the conduct must be of such an incontrovertible character that an agreement of reunion must be necessarily implied therefrom. Reunion is not merely an agreement to live together as tenants in common, but is intended to bring about a fusion in interest and estate among the divided members of an erstwhile Hindu undivided family so as to restore them the status of RFA.No.1626/2010 45 Hindu undivided family once again. As the burden is heavy on a party asserting reunion, ambiguous pieces and conduct equally consistent with a reunion or ordinary joint enjoyment cannot sustain a plea of reunion. If the earlier partition was by way of registered Deed, the reunion which follows it, to be valid in law, also to be effected by means of a registered Deed.

24. In this background, if the case on hand is analysed, it is not denied that, apart from the present three parties to the litigation, the erstwhile joint family of the parties had four more brothers, who are all sons of late U.Ramakrishna. As such, at the outset, the alleged reunion, as contended by the plaintiff, is only among three sons out of seven sons of their father late Sri U.Ramakrishna.

The plaintiff himself in his cross-examination has stated that in their native place, their family had RFA.No.1626/2010 46 1.5 acres of wet land and their father had partitioned the said land to his sons through an oral partition and all the sons are in possession in respect of the share of their property and got entered their name in the katha as per the said partition. Thus, the plaintiff himself has contended that there was an oral partition among all the sons of late Sri U.Ramakrishna.

According to the plaintiff, defendant No.1 i.e., his elder brother started the canteen at Bengaluru in the year 1975. Though he has stated that all the three brothers started the said canteen together, but, it was not admitted by DW-1. On the other hand, a suggestion to the effect that it was defendant No.1 alone who started the said canteen was also made to PW-1 in his cross- examination. PW-1 has stated that his elder brother i.e., DW-1 came to Bengaluru in the year 1970 and he (PW-1) came to Bengaluru in the year 1971. However, DW-1 in his cross-examination has stated that he came to Bengaluru RFA.No.1626/2010 47 in the year 1975 and both his brothers i.e., the plaintiff and defendant No.2 came to Bengaluru in the year 1980.

25. PW-3, who is defendant No.2, in his cross- examination has stated that, he came to Bengalurui n the year 1969 and plaintiff came to Bengaluru in the year 1970 and he does not remember as to when defendant No.1 came to Bengaluru. He also stated that they started canteen in the year 1969 and again has stated that, it must be 1976. Thus, PW-3 though was not clear as to which brother came to Bengaluru in which particular year and when the canteen was started, but, the evidence of all these three brothers makes one aspect clear that all of them did not come to Bengaluru together, but, they came at three different periods. Undisputedly, after they coming to Bengaluru, they were working independently and at three different places. RFA.No.1626/2010 48

26. PW-1 in his cross-examination has stated that after coming to Bengaluru, he joined Corporation canteen as a Cook and used to get `50/- per month in the year 1971. In the year 1978, he joined Kirloskar Factory Canteen as a Supplier and was being paid a sum of `450/- per month, which he used to deposit in the bank account. If the said statement of PW-1 about places of his work, firstly in the Corporation Canteen at Bengaluru and later on, in the Canteen at Kirloskar Factory, is accepted, his other statement that all the three brothers jointly started the canteen in the year 1974-75 proves to be false on his own leg.

27. PW-3, who is defendant No.2, and admittedly the brother of plaintiff and defendant No.1, in his cross- examination has stated that plaintiff joined the job at Bengaluru in the year 1978, which PW-1 also has stated. Thus, according to both of them, the plaintiff had a fixed RFA.No.1626/2010 49 job at Bengaluru only in the year 1978 and thereafter. However, the very same witness in the very same cross- examination once again has stated that the plaintiff joined Kirloskar Company in the year 1976. Thus, the year of the plaintiff getting a job at Bengaluru is not clear in the evidence of PW-3. Similarly, with respect to defendant No.1, his elder brother is concerned, the same confusion the witness has left open in his cross- examination. He was unable to say when the defendant No.1 came to Bengaluru. Though he claims that all the three brothers jointly started the canteen, but, he was unable to say when the said canteen was started by them. At one place, he says that canteen was started in the year 1969, in the same breadth, he says that may be in the year 1976 also. As such, he himself is not clear as to when the canteen was started. If the canteen is started in the year 1969, then, even according to him, plaintiff came to Bengaluru only in RFA.No.1626/2010 50 1970, as such, he cannot start the canteen. If it is believed that the canteen was started in the year 1976, then, according to the very same witness, by that time, the plaintiff had already joined the Canteen of the Kirloskar Company. Further, according to PW-3, he also joined as a Cook in Kirloskar Company in the year 1982. As such, how both the plaintiff and defendant No.2 who were working in another establishment could able to run canteen along with defendant No.1, has not been explained either by PW-1 or by PW-3. As such also, the evidence of PW-3 does not inspire any confidence to believe.

28. The evidence of PW-2 regarding the arrival of the parties to the suit to Bengaluru and their immediate job avocation after their arrival to Bengaluru is admittedly not a first hand information. It is because, he himself joined Kirloskar Company only in the year RFA.No.1626/2010 51 1980 and the plaintiff and defendant No.2 were his colleagues there. As such, if at all he is acquainted with the plaintiff and defendant No.2, the same would be only subsequent to the year 1980. As such, prior to that, what has happened in the families of the parties to the suit cannot be to the personal knowledge of PW-2. Admittedly, as stated by the said witness in his cross-examination itself about the business and avocation of the parties, he has come to know only from plaintiff and the 1st defendant, as such, he is only a hearsay witness on those information. As such, the evidence of PW-2 about when did the parties to the suit came to Bengaluru and how they were living their livelihood prior to 1980 are all not to the personal knowledge of PW-2. Interestingly, PW-2 who claims his acquaintance with the parties to the suit, has not stated that the plaintiff and defendants were residing together or that they had constituted a joint family. As such also, RFA.No.1626/2010 52 regarding the alleged existence of joint family among the parties to the suit, the evidence of PW-2 would not be of much avail.

29. PW-1 himself has stated that, after his marriage in the year 1980, he started living separately. However, no materials are produced by him to show that prior to that, he was residing with defendant Nos.1 and 2. Assuming for a moment that both plaintiff and defendant No.2 were residing with defendant No.1 immediately after their arrival to Bengaluru, still, by such a living together itself, it cannot be considered that they had constituted a joint family, since none of the witnesses have spoken about they having any intention to reunite and to form a joint family.

The above view would also gains support by the fact that, even according to PW-1, as stated by him in his evidence, apart from suit schedule properties, there RFA.No.1626/2010 53 are other immovable properties standing in his name, which he claims that it is his self-acquired properties. Similarly, PW-3, the other brother, has also stated that, in the year 1984, he purchased a site at Mahalakshmi Layout, Bengaluru, wherein, he has a construction comprising eighteen rooms. The same witness has stated that plaintiff might have purchased the house property at J.C.Nagar, Bengaluru. PW-3 further stated that, subsequently he has purchased a site measuring 30' x 40' at Laggere in his name. He has also stated that all these three brothers were not visiting the houses of each other.

Thus, both PW-1 and PW-3 i.e., the plaintiff and defendant No.2, have made it clear that, excluding the suit schedule properties, both of them have acquired few other properties in their personal name. That being the case, their conduct and their own statement would RFA.No.1626/2010 54 clearly go to show that after coming to Bengaluru also, the three brothers had no intention to reunite or to constitute a joint family. On the other hand, though they reside together for a very short period along with defendant No.1, who had by then established a house at Bengaluru, but, each of them were having their own separate earnings and family and also later on, they were residing separately and acquired properties in their individual names, which they claim, that the same were from out of their own earnings, as such, their self-acquired properties. That being the inference that can be drawn from the evidence, more particularly, of PW-1 and PW-3, their alleged contention that when they could purchase properties in their individual name, the suit schedule properties were purchased as a joint family property, though the property stands in the name of defendant No.1, is very hard to believe and does not inspire any confidence to believe their version. RFA.No.1626/2010 55

It is in that regard, the evidence of DW-1 that after he coming to Bengaluru as first person among the three brothers to the suit, he initially joined a hostel for service on a monthly salary and then started a canteen and also accommodated his brothers to stay with him initially till they established their own houses by pursuing their own avocation, proves to be more nearer to the truth. In such a situation, it is quite, but natural for him to have his name shown as the purchaser of the suit schedule properties when he has purchased all those three properties investing the money from out of his earnings. Therefore, the contention of defendant No.1 that at no point of time, the parties to the suit had constituted a joint family after their arrival to Bengaluru and the suit schedule properties were never acquired out of the nucleus of the alleged joint family, deserves to be believed.

RFA.No.1626/2010

30. A perusal of the evidence of PW-1, PW-2, PW-3, as well DW-1, no where go to show that the parties to the suit had intention to reunite after their partition during the life time of their father. There is neither any oral evidence nor any material even to draw an inference that the parties had intention to reunite and to constitute a joint family. As such also, merely because the alleged Partition Deed at Ex.P-1 is said to have been entered into between them, by that itself, it cannot be inferred that the three brothers constitute a joint family, more particularly, when defendant No.1 throughout has categorically denied that he has ever executed the said Deed at Ex.P-1. The burden to prove is more upon the plaintiff to prove that the brothers had intention to reunite and to constitute a joint family, which he has failed to discharge.

RFA.No.1626/2010

31. The plaintiff has further contended that the source of fund for purchasing the suit schedule properties were the joint family income of the parties to the suit. Except taking such a contention, he has no where stated as to what was the income of each of the brothers and how that income was pooled and utilised in purchasing the suit schedule properties. Even the basic information about the income of each of them and how they were spending and saving it and also how they were treating it as a joint family fund has not been explained either by PW-1 or PW-3. On the other hand, PW-1 himself in his cross-examination has stated that in the year 1978, he joined the Kirloskar factory canteen as a Supplier and was being paid `450/- per month, which he used to deposit in the bank account. It is not his case that the said bank account was a joint account or that he has contributed the said amounts towards purchase of suit schedule properties by his elder RFA.No.1626/2010 58 brother. Had really PW-1 was saving his earnings by depositing it in bank accounts, he would have definitely produced the documents of his bank account in that regard. Though the witness in the very same cross-examination has stated that he has got the bank accounts with him, still, he has not produced even a piece of such document. As such, his statement is only a self-serving statement. Had he really been in possession of such bank account documents to show his earnings and savings and also contribution to the alleged joint family, then, he would have necessarily and definitely produced them. Since he has not produced the same and has withheld the alleged vital documents which were alleged to be in his possession and custody, it amounts that he has withheld a valid piece of evidence, as such, an adverse inference can be drawn that he does not possess any of such documents. RFA.No.1626/2010 59 Similarly, defendant No.2, as PW-3, in his cross- examination has stated that the salary which he was getting from his company was being credited to his bank account like that of the plaintiff. Thus, he was expected to have the documents in the form of bank account passbook or bank statements etc., to show the amount standing in his bank account and withdrawals made by him, if any, and also cheques issued by him in favour of third parties or transfers made, but, none of those documents were produced by him. Though he stated that he does not possess a passbook, but, it does not mean that he could not get duplicate passbook or a copy of statement of his account and produced in the Court to show that he had source of income and sufficient amount which he claims to have given to defendant No.1. Thus, like PW-1, he too has withheld the documents from its production before the Court. As such, an adverse inference can be drawn even in his RFA.No.1626/2010 60 case also. Thus, the contention of the plaintiff and PW-3 that the parties to the suit constitute a joint family and it was from out of the income of the joint family, the suit schedule properties were purchased, has not been proved by the plaintiff.

32. The argument of learned counsel for the respondent No.1/plaintiff that the sale of `C' Schedule property (Schedule Item No.3 property) by defendant No.2 itself would prove that there existed a joint family among the three brothers and that the suit schedule properties were partitioned between them, is also not acceptable, for the reason that, the defendant No.1 at the earliest point of time has taken a contention that though the said property was also belonging to him, but, without his consent, the defendant No.2 sold it, depicting that it was his property and subsequently sought forgiveness before the defendant No.1, as such, RFA.No.1626/2010 61 considering that he was his younger brother, he has not taken any action against him.

At this juncture, an admission made by PW-3 in his cross-examination that as at the time of Ex.P-1, they were not constituting joint family, also cannot be ignored. Had PW-3/defendant No.2 sold the suit Schedule `C' property (Schedule Item No.3 property) by considering the said property as has fallen to his share in the alleged partition among the three brothers of the joint family, then, he should have necessarily denied the said suggestion that as at Ex.P-1, they were not constituting the joint family. However, by admitting the said suggestion as true, he has made it clear that, as at the time of Ex.P-1, they were not of joint family. He has shown that the suit schedule properties cannot be joint family properties since there was no joint family. As such also, the generosity of the eldest member in the RFA.No.1626/2010 62 family i.e., defendant No.1 who has pardoned the act of his younger brother i.e., defendant No.2 who had sold suit Schedule `C' property (Schedule Item No.3 property) belonging to him (defendant No.1) cannot be considered as a joint family properties of the parties to the suit.

33. Ex.P-1 admittedly is a registered Partition Deed and dated 1.4.1981. However, it was registered before the jurisdictional Sub-Registrar only on 28.7.1981. Though PWs.1 to 3 contend that defendant No.1 also is one of the Executant of the said Partition Deed, but, the said defendant No.1 has categorically and specifically denied that he has executed the said Partition Deed. PW-2 has stated that he was present when the said document was executed. He has stated that on 28.7.1981, along with parties to the suit, who were the alleged Executants of the Partition Deed, RFA.No.1626/2010 63 himself and one Sri Mariyapa and scribe M.Lakshmana were also present in the Sub-Registrar's office, Srirampuram, Bengaluru City. Interestingly, including PW-2, none of the plaintiff's witnesses have any where stated when the said document was signed by them and more particularly, defendant No.1. All the plaintiff's witnesses have only stated that the said document came to be registered on 28.7.1981.

34. PW-2 in his cross-examination has stated that one Sri Lakshmana, a Deed Writer, has prepared Ex.P-1 on 17th or 19th day of August 1981, in the presence of both the plaintiff and the defendants, between 10.00 to 1.00 p.m. The said document was got typed by them in front of the office of the Sub-Registrar. At that time, he was also present. If the said version is believed, then, the alleged Partition Deed at Ex.P-1 has come into existence only on 17th or 19th of August 1981, whereas, RFA.No.1626/2010 64 the said document at Ex.P-1 mentions that it was executed on 1.4.1981. As such, if the evidence of PW-2 is believed, the document was not at all in existence in April 1981 since it came into existence only on 17th or 19th August 1981. Therefore, how come a document which was not in existence can be signed on 1.4.1981 is a serious doubt that creeps in the execution of the document at Ex.P-1.

Secondly, PW-2 in his examination-in-chief after identifying Ex.P-1, has stated that he has subscribed his signature to the document and got it marked at Ex.P-1(a). However, in his cross-examination, he has specifically stated that Ex.P-1(a) is not his signature, but, is only his name. His signature which is in his affidavit evidence as PW-2 does not find its place at Ex.P-1(a). As such, it does prove that though PW-2 claims himself to be a witness to the execution of RFA.No.1626/2010 65 Ex.P-1, but, he has not subscribed his signature to the said document. As such also, the very execution of Ex.P-1 creates a doubt.

Thirdly, the very same PW-2 who in his affidavit evidence has stated that along with him, one Sri Mariyappa was also a witness to the said document, has in his further examination-in-chief itself has stated that there was one more witness to the said document, but, he has forgotten his name. This clearly go to show that without knowing the contents of what was stated in his affidavit evidence, he has subscribed to it, but, he could not establish the contents of his affidavit as true. As such also, the very execution of Ex.P-1 attracts more suspicion to believe it.

Fourthly, the document at Ex.P-1 is shown to have been executed on 1.4.1981 and it is show to have been registered on 28.7.1981. However, at the end, in the RFA.No.1626/2010 66 last page of the document, an insertion has been made showing that, with respect to the sites, the tax has been paid to Corporation on 22.7.1981, vide receipt No.22105 and they come within the Corporation limit. The said portion is handwritten, whereas, the entire other contents of the document is typewritten. For such manuscript insertion, there is no correction signature. Further, there is no explanation from any of the plaintiff's witnesses as to how come such an alteration in the form of insertion has been made to the said document after its alleged execution on 1.4.1981. As such also, the very document at Ex.P-1 does not inspire confidence to believe in it.

35. The plaintiff has contended that defendant No.1 has executed the alleged Partition Deed at Ex.P-1. In that regard, PW-1 has got marked only the document at Ex.P-1, but, none of the signatures were marked as RFA.No.1626/2010 67 exhibits. The defendant No.1 has specifically taken a contention that he has not executed the document at Ex.P-1. In that background, the trial Court referred the disputed signature and disputed thumb impression for Expert's opinion. The Forensic Science Laboratory which was required to examine and compare the disputed signature with the subsequent signature could not give its opinion citing the reason that the signature of defendant No.1 in and around the year 1981 when the disputed signature in Ex.P-1 came to be put was not available. As such, no opinion was available with respect to handwriting/signature. However, the Finger Print Bureau, through its Police Inspector, compared the disputed thumb impression of Ex.P-1 with the admitted one on Ex.D-1. Ex.D-1 is a registered Sale Deed dated 9.6.1978 produced by defendant No.1 to show that the suit Schedule Site Nos.16 and 25 were purchased by him in his name. The said document bears his thumb RFA.No.1626/2010 68 impression. The Finger Print Bureau in its opinion letter dated 25.3.2019, opined that the disputed thumb marks and admitted thumb marks tallies with each other. The trial Court has acted upon the said opinion and concluded that the defendant No.1 has executed Ex.P-1, as such, the alleged existence of joint family, as well the partition among the parties to the suit of suit schedule properties have been proved.

36. Learned counsel for the appellant vehemently submitted that the said Expert's opinion which was objected to by the defendant No.1 in the trial Court is without any reasonings and the said Expert/ Commissioner was not examined, as such, defendant No.1 had no opportunity to cross-examine him. In the instant case, the Finger Print Expert's report (which has not been marked as an exhibit) and dated 25.3.2019, initially is with a defect that it has called the admitted RFA.No.1626/2010 69 finger print as disputed and disputed as an admitted one. Further, though it opines that both the finger prints tallies with each other, but, has not attributed a detailed reasons as to on what basis, it has arrived at such a conclusion. More importantly, assuming for a moment that the said opinion was reasoned, still, when the defendant No.1 has specifically objected to the said Commissioner's report in the trial Court, it should have given him an opportunity to cross-examine the said Commissioner/Expert, which was not provided to him in the matter.

Furthermore, as already observed above, PW-2, the so called witness to the execution of Ex.P-1 by the parties, also has shown himself to be not a trustworthy witness to believe. As observed above, though he claims to be a witness who has subscribed his signature to Ex.P-1(a), but, has admitted by himself that, RFA.No.1626/2010 70 Ex.P-1(a) is not his signature. PW-3 is an interested witness and he himself is defendant No.2. Further, as discussed above, the very execution of Ex.P-1 on 1.4.1981 itself was found to be suspicious, in such a circumstance, making the Finger Print Expert/ Commissioner available for the cross-examination of the contesting defendant i.e., defendant No.1 was very much necessary. Further, as already observed above, in the original document at Ex.P-1, none of the signatures of the Executant of the document were marked as exhibits and confronted it to the witnesses, so also, the finger prints. For these reasons, the Expert's report on the thumb impression/finger print on Ex.P-1 is not safe to rely upon.

37. The plaintiff has produced several Electricity bills and Water bills from Exs.P-5 to P-33 to show that he is in possession of the suit Schedule Item No.2 RFA.No.1626/2010 71 property. However, the defendant No.1 has denied that any of those documents pertain to the disputed property. A perusal of those Water bills and Electricity bills would go to show that though those documents shows the Electricity Meter Number (R.R.No.) and Water Meter Number, but, it does not show that those Water and Electricity connections pertains to the present disputed suit Schedule Item No.2 property. Some of the Electricity bills gives the address as 24/1, 21st Main Road, Mysuru Road, whereas, in the suit schedule, the disputed Item No.2 property is shown as the property bearing Site No.25, 22nd Cross, 1st `B' Main Road, Mariappanapalya, Kempapura Agrahara, Magadi Road. As such, none of these documents can be taken as proving the possession of the suit schedule property or much less, ownership of the suit schedule property upon the plaintiff.

RFA.No.1626/2010

38. The last argument of the learned counsel for the appellant was that suit was barred by limitation, however, the trial Court did not consider the said aspect at all. It is his contention that admittedly the date of disputed document at Ex.P-1 is 1.4.1981, but, is alleged to have been registered on 27.4.1981, whereas, the suit is filed twentythree years thereafter, which was on 4.11.2004, as such, the suit is hopelessly barred by limitation.

Per contra, learned counsel for the respondent/plaintiff in his argument submitted that the plaintiff has stated in his plaint itself that the cause of action arose to him in August 2004 when he demanded the defendants to execute the Rectification Deed and finally on 20.9.2004 when the legal notice was issued to the defendants calling upon them to execute the Rectification Deed. Thus, within three years from the said date, the suit has been instituted, which is well RFA.No.1626/2010 73 within the time of limitation under Article 113 of Schedule to the Limitation Act, 1963.

39. Even according to the plaintiff, the alleged date of partition is dated 1.4.1981, which is shown to have been registered on 28.7.1981. Admittedly, the suit is filed on 4.11.204, which is more than twentythree years after the said dates. The plaintiff no where in his plaint has given the reason for the said delay. On the other hand, he has stated that the cause of action has arisen to him apart from on 28.7.1981, in August 2004, when he demanded defendant Nos.1 to 2 to execute the Rectification Deed. No doubt, he has issued a legal notice as per Ex.P-36 to the defendants, which is dated 20.9.2010, calling upon them to execute the Rectification Deed, however, even according to the plaintiff, after the alleged partition under Ex.P-1 in the year 1981, he has put up construction of residential houses in the said property and has leased them to RFA.No.1626/2010 74 various lessees. In that regard, he has also produced two Rent Agreements at Exs.P-2 and P-3, which are dated 12.12.1995 and 14.2.2001. Even if it is taken that he had put up construction and leased them as owner of the property, then, for putting up such construction on the property, he should have got revenue documents made in his name, including katha and also to obtain water and electricity connections, he should have produced documents of his ownership over the suit schedule property to the concerned authorities. In all these cases, it was admittedly Ex.P-1 alone which is the sole document which he could have produced as a document of his ownership since he claims that it was through Ex.P-1, the alleged Partition Deed, he got the suit schedule property to his share. In such an event, all those authorities should have necessarily refused to make the records in his name since the property he mentioned therein was differing than the property which RFA.No.1626/2010 75 he claims to be in physical possession of. As such, when he claims to have put up the construction of the house in the suit Schedule Item No.2 property, which even according to him, is earlier to 1995 (because the Lease Agreement at Ex.P-2 is of the year 1995), he knew the alleged discrepancy in the alleged Partition Deed at Ex.P-1. As such, at the latest, on the said day, there had accrued a cause of action to institute the suit which was neither renewed nor a continuous one thereafter. Hence, even as per Article 113 of Limitation Act, he should have instituted the suit within three years when the right to sue that has accrued to him. Since the plaintiff has not filed the suit within the said period, but, has filed the suit twentythree years after the alleged year of partition, the suit is hopelessly barred by limitation.

40. The trial Court did not appreciate any of the above facts in its proper perspective. On the other hand, in its very cryptic judgment and very very brief RFA.No.1626/2010 76 reasoning, it has accepted Ex.P-1 on its facial value and gave more weightage to the evidence of PWs.1 to 3 without noticing the discrepancies in their evidences, which has made them not trustworthy, proceeded to decree the suit. Since in view of the above analysis and reasoning the said finding of the trial Court now proved to be found erroneous and since it is observed that the plaintiff has failed to prove that there was a joint family between the parties to the suit and that the suit schedule properties were joint family properties and since he has also failed to prove that there was a partition with respect to suit schedule properties as per Ex.P-1, the question of he being entitled for rectification of the document at Ex.P-1 or for partition of 1/3rd share, does not arise. As such, the judgment and decree under appeal deserves to be interfered with and deserves to be set aside and the suit of the plaintiff is also deserves to be dismissed.

RFA.No.1626/2010

41. Accordingly, I proceed to pass the following order:

ORDER The Appeal is allowed with cost. The judgment and decree dated 21.06.2010, passed by the learned XXVIII Addl.City Civil Judge, at Mayohall Unit, Bengaluru, in O.S.No.16950/2004, is set aside. The suit of the plaintiff in O.S.No.16950/2004 is dismissed.

Draw decree accordingly.

The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court without delay.

Sd/-

JUDGE bk/

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