Karnataka High Court
Smt Shanthamma vs Smt Jayamma on 21 April, 2023
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 21ST DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.1621/2017 (PAR)
BETWEEN:
SMT. SHANTHAMMA
W/O MADEGOWDA,
AGED ABOUT 56 YEARS,
R/O HALAHALLI VILLAGE,
MANDYA-571 401. ... APPELLANT
(BY SRI M.B.CHANDRACHOODA, ADVOCATE FOR
SRI RAJA L, ADVOCATE)
AND:
1. SMT. JAYAMMA
W/O LATE B. CHANNAIAH,
AGED ABOUT 75 YEARS,
2. SRI C. RAJU
S/O LATE B. CHANNAIAH,
AGED ABOUT 51 YEARS,
BOTH ARE R/O NO.100
5TH CROSS, SWARNASANDRA,
MANDYA-571 401
3. SMT. SOWBHAGYA
D/O LATE B. CHANNAIAH,
AGED ABOUT 48 YEARS,
R/O NO.363, SWARNASANDRA,
MANDYA-571 401
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4. SMT. MANJULA
W/O HALAGEGOWDA,
D/O LATE B. CHANNAIAH,
AGED ABOUT 46 YEARS,
R/O KADENAHALLI VILLAGE,
JAKKENAHALLI POST,
PANDAVAPURA-TQ,
MANDYA DIST-571 401
5. SRI B.C. SHANKAR
S/O LATE B. CHANNAIAH,
AGED ABOUT 44 YEARS,
R/O NO.100, 5TH CROSS,
SWARNASANDRA,
MANDYA-571 401
6. SMT. LALITHA
W/O VENKATESHA,
D/O LATE B. CHANNAIAH,
AGED ABOUT 42 YEARS,
R/O MACHALLI VILLAGE,
TORESHETTALLI POST,
ATAGUR HOBLI,
MADDUR TALUKA,
MANDYA DIST-571 401 ... RESPONDENTS
(BY SMT.G.K.BHAVANA, ADVOCATE FOR R1 TO R6)
THIS R.S.A., IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGEMENT AND DECREE DTD:03.04.2017
PASSED IN R.A.NO.6/2012 ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC., MANDYA, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE
DTD:06.02.2012 PASSED IN O.S.NO.56/2006 ON THE FILE OF
THE ADDITIONAL CIVIL JUDGE (JR.DN.) MANDYA.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 17.04.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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JUDGMENT
Heard the learned counsel for the appellant and the learned counsel for respondent Nos.1 to 6.
2. This appeal is filed challenging the judgment and decree dated 3.4.2017, passed in R.A.No.6/2012, on the file of the II Additional Senior Civil Judge and JMFC, Mandya.
3. The factual matrix of the case of the plaintiff before the Trial Court is that the plaintiff and defendant Nos.2 to 6 are the children of Late B. Channaiah. The said B. Channaiah had two wives. The first wife by name Jayamma is no more and she had only one daughter i.e., the plaintiff - Smt. Shanthamma. Through the second wife, her name is also Jayamma, defendants No.2 to 6 are born to the said B. Channaiah. It is contended that during the life time of B. Channaiah he was managing the joint family affairs. The suit schedule properties are the ancestral joint family properties of the plaintiff and defendants, as such, the plaintiff has entitled for 1/7th share in the suit schedule properties. In spite of requesting several times to effect the partition, the defendants did not heed to the requests of the plaintiff and they are trying to eliminate the suit schedule 4 properties in favour of third party. Hence, the plaintiff filed the suit for the relief of partition.
4. In pursuance of the suit summons, the defendants appeared through their counsel and defendants Nos.2 and 5 filed the written statement denying all the averments made in the plaint. However, admitted the relationship between the parties. It is contended that after the death of the said B. Channaiah, the joint family properties have been divided by the first defendant through oral partition and for the convenience of the plaintiff and defendants registered a palu parikath on 04.03.2005. Item No.1 is the self acquired property of the first defendant and item No.6 is also the self acquired property of fifth defendant. It is contended that as per the said palu parikath, the plaintiff and defendants have given consent to the said document and put their signatures and agreed to receive the amount which was due from one Nanjundaiah to divide equally and recovered the said amount through Court of Law to the tune of Rs.1,80,000/-. The plaintiff also entitled to receive a sum of Rs.30,000/- towards her share and also the plaintiff has given consent to the said partition. Hence, the question of filing the suit for partition does not arise.
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5. Based on the pleadings of the parties, the Trial Court framed the issues and the plaintiff in order to prove her case examined herself as P.W.1 and two witnesses as P.W.2 and P.W.3 and got marked the documents at Exs.P.1 to 15. On the other hand, defendant Nos.5 and 4 have been examined as D.W.1 and D.W.2 and they have examined one witness as D.W.3 and got marked the documents at Exs.D.1 to 9. The Trial Court after considering both oral and documentary evidence placed on record granted share in the suit schedule properties in favour of the plaintiff.
6. Being aggrieved by the judgment and decree of the Trial Court, the defendants have filed an appeal in R.A.No.6/2012 before the First Appellate Court. The First Appellate Court on appreciation of both oral and documentary evidence placed on record allowed the appeal and set aside the judgment and decree of the Trial Court and dismissed the suit. Hence, the present appeal is filed by the plaintiff before this Court.
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7. This Court while admitting the appeal framed the following substantial questions of law vide order dated 18.06.2018, as follows:
1. Whether the First Appellate Court is justified in holding that there was a prior partition and Ex.D1, the registered partition deed was acted upon and without seeking cancellation of the said partition deed, the instant suit was not maintainable?
2. Whether the First Appellate Court is justified in concluding that the suit schedule properties are self-acquired properties of defendant Nos.1 and 5?
8. The learned counsel appearing for the appellant in his arguments he vehemently contends that there is no dispute with regard to the relationship between the parties. The learned counsel would contend that defendants No.2 and 5 have filed the written statement contending that already there was an oral partition and the same was reduced into writing. It is contended that item No.1 is the self-acquired property of defendant No.1 and item No.6 is the self-acquired property of defendant No.5.
It is the contention of the defendants that the plaintiff has received an amount of Rs.30,000/- towards partition and 7 pleading is contrary to oral evidence. The evidence of D.W.2 is that already there was a partition, is contrary to the document - Ex.D1.
9. The learned counsel would vehemently contend that the First Appellate Court has committed an error in coming to the conclusion that the partition deed is not questioned and not sought for any cancellation of partition deed. Admittedly, the LTM of the plaintiff was taken and not followed the procedure under Rule 73 of the Karnataka Registration Rules, 1965 since the plaintiff is an illiterate and it is the duty of the Sub-Registrar to explain the contents of the document to the plaintiff and the same is not done. The learned counsel also would contend that the Court should have moulded the relief. The very observation that the Partition Deed is not challenged is not correct and the same is not fatal. The learned counsel would vehemently contend that the signature of the plaintiff was obtained by way of misrepresentation stating that they are getting the amount, for which her signature is required.
10. The learned counsel for the appellant in support of his arguments relied upon the judgment of the Apex Court in the 8 case of FIRM SRINIWAS RAM KUMAR v. MAHABIR PRASAD AND OTHERS reported in AIR 1951 SC 177 and relied upon paragraph No.9 of the judgment wherein an observation is made that, it was certainly open to the plaintiff to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the court to give him relief on that basis. The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put 9 forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. It is further observed that, in such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to file a separate suit.
11. The learned counsel also relied upon the judgment of the Orissa High Court in the case of SUNDAR SAHU GOUNTIA AND OTHERS v. CHAMRA SAHU GOUNTIA AND OTHERS reported in AIR 1954 ORISSA 80, referring to this judgment, the learned counsel brought to the notice of this Court paragraph No.12, wherein, discussed with regard to the family arrangement. To constitute a valid family arrangement the transaction should be one which is for the benefit of the family generally. In any case, if such an arrangement has been acted upon the Courts will give effect to it on the ground of estoppel or limitation and the like. A family arrangement may also be upheld: if the consideration moves from a third party. If it appears to the Court that one party has taken undue advantage of the helplessness of the other and there is no sacrifice of any 10 right or interest, the agreement is unilateral and is devoid of consideration. The consent of the parties should be freely given to the arrangement and gross inadequacy of consideration may be a determining factor in judging whether the consent was freely given. It is also discussed in paragraph No.13 that it is a settled principle of law that a promise to do a thing or the actual doing of it will not be a good consideration. The learned counsel also brought to the notice of this Court paragraph No.19, wherein, discussed with regard to the settlement is the result of an inequality of position, undue influence or coercion, such as would be sufficient in law to vitiate it, then it cannot be said that there is mutuality between the parties or that consent is freely given.
12. The learned counsel also relied upon the judgment of the Apex Court in the case of PREM SINGH AND OTHERS v. BIRBAL AND OTHERS reported in (2006) 5 SCC 353, and brought to the notice of this Court paragraph No.5, regarding when a transaction is void, as a suit can be filed at any time, the provisions of the Limitation Act are not attracted. The learned counsel also brought to the notice of this Court paragraph No.11, wherein, discussed with regard to limitation is a statute of 11 repose. It ordinarily bars a remedy, but, does not extinguish a right. The learned counsel also brought to the notice of this Court paragraph No.14, wherein, discussed with regard to a suit for cancellation of instrument is based on the provisions of Section 31 of the Specific Relief Act, when cancellation may be ordered and also discussed Section 31 in paragraph No.15 refers to both void and voidable documents. It provides for a discretionary relief. In paragraph No.16 held that when a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non est in the eye of the law, as it would be a nullity. The learned counsel also brought to the notice of this Court paragraph No.21, wherein, discussed that there had been a fraudulent misrepresentation as regards its contents but fraudulent misrepresentation as regards contents of a document is voidable.
13. The learned counsel also relied upon the judgment of this Court in the case of RANGAPPA v. JAYAMMA reported in ILR 1987 KAR 2889, wherein, the Division Bench of this Court considered Order VII Rule 7 of CPC that, Every plaint shall state 12 specifically the relief which the plaintiff claims either simply or in the alternative and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. The learned counsel would contend that the same gives wide power to the Court to grant such relief as the plaintiff is entitled to. The normal rule that relief not founded on the pleadings should not be granted is not without an exception. Where substantial matters constituting the title of all the parties are touched in the issues and have been fully put in evidence, the case does not fall within the aforesaid rule. The Court has to look into the substance of the claim in determining the nature of the relief to be granted to the plaintiff. The learned counsel also brought to notice of this Court paragraph No.8.7, wherein discussed the judgment of Rame Gowda v. Kuntalinge Gowda and others reported in (1950) 55 Mysore High Court Reports, 240 that, Though this is a suit for declaration of title and possession only, there is nothing unusual in giving relief to the parties by directing a partition of the properties as has been done in other cases of this kind in order to avoid unnecessary litigation and waste of time of Courts.
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14. The learned counsel also relied upon the judgment of this Court in the case of Smt. NEELAWWA v. Smt. SHIVAWWA reported in AIR 1989 KAR 45, and brought to the notice of this Court paragraph Nos.8 and 10, wherein, discussed with regard to the provisions of Order VII Rule 7 of CPC., are so widely worded that they do enable the Court to pass a decree for partition in a suit for declaration of title to immovable property and possession thereof where it turns out that the plaintiff is not entitled to all the interest claimed by him in the suit property. The Court has to look into the substance of the claim in determining the nature of the relief to be granted. Of course, the Court while moulding the relief must take care to see that relief it grants is not inconsistent with the plaintiff's claim, and is based on the same cause of action on which the relief claimed in the suit, that it occasions no prejudice or causes embarassment to the other side; that it is not larger than the one claimed in the suit, even if, the plaintiff is really entitled to it, unless he amends the plaint; that it had not been barred by time on the date of presentation of the plaint.
15. The learned counsel also relied upon the judgment of the Apex Court in the case of Mrs. UMADEVI NAMBIAR v. 14 Smt. THAMARASSERI ROMAN CATHOLIC DIOCESE REP. BY ITS PROCURATOR DEVSSIA'S SON REV. FATHER JOSEPH KAPPIL reported in AIR 2022 SC 1640, and brought to the notice of this court in paragraph No.15, wherein it is held that, It is not always necessary for a plaintiff in a suit for partition to seek the cancellation of the alienations. There are several reasons behind this principle. One is that the alienees as well as the co-sharer are still entitled to sustain the alienation to the extent of the share of the co-sharer. It may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner.
16. Per contra, the learned counsel appearing for the respondents/defendants would vehemently contend that no dispute with regard to the relationship between the parties and already there was a registered partition between the parties. It is specifically pleaded that the property is the self-acquired property of defendant No.1 - Jayamma and also other properties are the self-acquired properties of the son and he had also obtained the loan. The learned counsel also would vehemently contend that the plaintiff has not sought for any cancellation of 15 the partition deed and without seeking the relief of cancellation of partition, the very suit itself is not maintainable. The learned counsel would submit that item Nos.2 to 4 and 6 to 9 belongs to Late B. Channaiah. Item No.1, belongs to the wife of the said B. Channaiah, who is the second wife. The partition deed was registered on 04.03.2005 and the suit was filed in the year 2006. While filing the suit, suppressed the document - Ex.D1 and the plaintiff is also a party to the document - Ex.D1. The allegation is that the left thumb impression was obtained on the empty sheet by fraud. The recital of the document is very clear that all of them have jointed together, then the document came into existence, the same is read and explained to the party. It is not the case of the plaintiff that the partition is not an equitable partition though claims that the complaint was given, the copy of the complaint was not registered; only an acknowledgement is produced, the same is also after filing of the suit, an acknowledgement is created. When the partition already been taken place, the same cannot be re-opened. The learned counsel would vehemently contend that Section 58 to 60 of the Karnataka Registration Act, 1908 is very clear that there must be a registration certificate. The learned counsel would 16 vehemently contend that there is a recital with regard to the document is read and explained to the party. The learned counsel would submit that the judgment relied upon by the learned counsel appearing for the appellant in the case of Sundar Sahu Gountia (supra), is helpful to the respondents. The First Appellate Court while reversing the finding of the Trial Court has given the reasoning that unless the partition deed is cancelled, the plaintiff is not entitled for the relief. The First Appellate Court has given the reasoning while reversing the finding of the Trial Court. Hence, the very contention of the learned counsel for the appellant that the First Appellate Court has committed an error cannot be accepted.
17. The learned counsel for the respondents in support of his arguments relied upon the judgment of the Apex Court in the case of MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA (DEAD) THROUGH LRs. & OTHERS in CIVIL APPEAL No.2965 OF 2022 (D.D. 13.01.2023), and brought to the notice of this Court paragraph No.30, wherein, discussed that the High Court was therefore right in holding that when a document has been duly registered, there is a presumption of 17 correctness and it can be rebutted only by strong evidence as against the registered document.
18. Having heard the respective counsel, on perusal of the material available on record and the principles laid down in the judgments referred supra by the learned counsel for the appellant and the learned counsel for the respondents, this Court in keeping the substantial question of law framed by this Court while admitting the appeal analyse the material available on record since there is a divergent finding before this Court.
19. The first substantial question of law is that, Whether the First Appellate Court is justified in holding that there was a prior partition and Ex.D1, the registered partition deed was acted upon and without seeking cancellation of the said partition deed, the instant suit was not maintainable? The other substantial question of law is that, Whether the First Appellate Court is justified in concluding that the suit schedule properties are self-acquired properties of defendant Nos.1 and 5?
20. Having taken note of the pleadings and also the evidence available on record, it is the contention of the plaintiff that there was no partition in spite of the demand being made, 18 her request was not considered. Hence, sought for the relief of partition. In the written statement, the defendants have specifically contended that there was already a partition and the document - Ex.D1 clearly discloses that the appellant is also a party to the said partition. It is also the contention that item No.5 is the self-acquired property of 5th defendant and also it is their contention that the plaintiff by receiving her share relinquished her share to the joint family properties. Hence, she is not entitled for any relief. There is a divergent finding with regard to the issues involved between the parties. The plaintiff has sought for the relief of partition and separate possession of the plaintiff's legitimate share in the suit schedule property by metes and bounds. In order to substantiate her claim she also been examined as PW.1 and she reiterated the averments of the plaint and there is a divergent finding with regard to appreciation of both oral and documentary evidence placed on record. The Trial Court granted the relief of partition and the same is reversed by the First Appellate Court.
21. PW.1 in her evidence, she has stated that no such oral partition and the properties were purchased by her father. The defendants with an intention to defraud her obtained her 19 signature stating that they are going to get an amount from the Court, her signature is required and she is also entitled for the share. The defendants took her and obtained her signature on the blank paper but no amount was given to her. It is also her case that she is an illiterate and with an intention to cheat her, they created the document. When she came to know about the same immediately she gave the complaint to the Police, but no purpose was served in giving the complaint. She was also subjected to cross-examination. It is suggested that her mother purchased the property out of her own money, the same was denied. It is suggested that her mother purchased the property out of selling the gold ornaments which was given to her, the same was also denied. She claims that she went to Sub- Registrar office three years ago and she was taken to Sub- Registrar Office stating that they are going to give money and her brother took her to the Sub-Registrar Office. Her other brothers and also the mother came to the office of Sub-Registrar but no money was given to her. When she asked her brother, why they have not given the money, both her brother and her mother and sisters had not given any reply. But they took the signature forcibly in the presence of Sub-Registrar inside the 20 office. But she did not inform the same to the Sub-Registrar. But her claim is that she has informed the same to her husband and she has also given the complaint on the very next day. It is also her evidence that the Police came near her house and she is having document to show that she has given the complaint and no difficulty to produce the same. It is suggested that for the partition she has signed the document, the same was denied. It is suggested that there was an oral partition and in terms of the oral partition each of them are enjoying the same, the same was denied. It is suggested that in terms of the partition she has received an amount of Rs.30,000/- and the same was denied. It is suggested that her sisters have explained the contents of the Partition Deed and the same was denied. However, she admits that after the decree it was decided, she has to take the money but she claims that no such money was given.
22. She also examined P.W.2, P.W.2 says that no such partition was taken place. But she claims that in 2005, the Panchayath was held. In the said Panchayath, they told them to give a share and the same was refused. In the cross- examination, she says that Panchayath was held in the house of the first respondent, but on the next day, the plaintiff told her 21 that though they have obtained the signatures they have not given any money. This Panchayath was held prior to obtaining her signature.
23. The other witness is PW.3. PW.3 says that Panchayath was held in Swarnasandra and they also told in the Panchayath to give a share to her, but they refused. She came to know that the plaintiff has given the complaint to the Police. In the cross-examination, she says that Panchayath was held in the month of October 2005 and the witness also admits that the plaintiff is her sister daughter.
24. On the other hand, 5th defendant has been examined as D.W.1. He does not deny the relationship between the parties. But he claims that there was a partition and the plaintiff is also a signatory to the said partition and the suit is filed only to trouble the defendants. He was subjected to cross- examination. In the cross-examination, he claims that an oral partition was taken place when his father was alive and the same was reduced into writing subsequently. But he claims that his father himself taken the responsibility to partition the property and all the brothers have joined together when the oral 22 partition had taken place. The plaintiff was residing in her husband's house and at the time of partition she was called and talks were held in between 3 and 7 p.m. in his house. But he claims that his father was noted the same in the white sheet and the same is not given to him, the Khatha was transferred. He admits that the plaintiff is an illiterate and also admits that she does not know to read and write. While talking with each other both his brothers and sisters have joined together and no one were there at the time of talks and the document was written by one Keshavamurthy. The signatories are Shivashankara and Channegowda and they are known to them. He admits that in the property they have not given any share to the daughters but told that they are going to give money in the amount they are going to receive. He admits that the transfer of khatha based on the consent given by his father. He admits that no material has been placed for having her mother had sold the gold ornaments before purchasing the property. He admits that an amount of Rs.1,35,000/- of his father came and balance yet to come. He also admits that he did not inform the sisters to come and take the money. He cannot tell how much amount his father was having. Except the amount in Court no other money was there. 23 He is not having any difficulty to produce the documents. He admits that father passed away after 3 to 4 years of the said partition. He admits that in Ex.D1, it is mentioned that orally partition had taken place and also he admits in Ex.D1, it is mentioned that after the death of their father, the partition had taken place between them and the mother. He categorically admits that some properties were transferred during the lifetime of their father and some of the properties were transferred after the death of their father. He also admits that the plaintiff has given the complaint against him before the Police. The Police also enquired him. It is suggested colluding with police he got closed the complaint and the same was denied.
25. The other witness is DW.2. DW.2 is the sister of the plaintiff and in her evidence she says that there was a partition during the lifetime of her father and in terms of the said partition, item No.1 was allotted to her mother in the said partition. She was enjoying the same during her lifetime after her death the same should go to the second defendant. It is also her claim that the same is the self-acquired property of the mother. Item No.5 was purchased by her brother. It is also her case that in the said partition, the amount was given to Palu and 24 in terms of the decree, an amount of Rs.1,80,000/- has to be divided and in terms of an oral talks, partition deed was executed. She was subjected to cross-examination. In the cross-examination, she admits that the plaintiff mother and her mother are different. It is her claim that 10 years ago, the plaintiff and her mother orally partitioned the property and the Panchayath was held and she also participated in the said Panchayath. It is decided in the Panchayath that the amount in Court should go to the daughters. In the said partition, no partition had taken place with respect to the movable properties and she cannot tell the boundaries of the suit schedule properties and so she cannot tell which survey number was allotted to whom. It is also her admission that her husband is working as Daily Wage Employee in Social Department.
26. The other witness is DW.3, who claims that he is a signatory to the partition deed. In the cross-examination, he admits that he does not know the details of the family members of the plaintiff and the defendants. He also admits in the cross- examination that he identifies Ex.D1 on the say of his father. He also admits that in order to identify a person, he should know the entire address and also admits that in Ex.D1, his full address 25 is not mentioned and also he cannot tell who are all identified without looking into the documents and also he does not know the contents of Ex.D1.
27. Having considered both oral and documentary evidence placed on record and also the grounds urged in the appeal, the substantial question of law framed in this appeal is whether the First Appellate Court is justified in holding that there was a prior partition in terms of Ex.D.1 and the same was acted upon and without seeking cancellation of the said partition deed, whether the instant suit was not maintainable and whether the lower Appellate Court is justified in concluding that the suit schedule properties are the self-acquired properties of defendant Nos.1 and 5. Having re-analyzed the material available on record, it is the case of the plaintiff before the Trial Court that she is entitled for share in the family properties and according to the defendants, already there was a partition in terms of Ex.D.1. On perusal of the document Ex.D.1, no doubt, all the family members have signed the document Ex.D.1 and the plaintiff has put her LTM on the said document. On perusal of the plaint for having taken the signature fraudulently has not been pleaded. But in the evidence of the plaintiff consequent upon the defence 26 set forth by the defendants that already there was a partition, she has deposed before the Court that fraudulently her signature was obtained stating that she is having a share in the amount which is in the Court and took her signatures to the blank papers and created the documents and when the same came to her knowledge, immediately she gave complaint to the police and no action was taken.
28. D.W.1 in the cross-examination categorically admitted that the plaintiff gave the complaint to the police and the police called and enquired him. But it is the contention of the learned counsel for the respondents that no such complaint is produced before the Court. Merely because the said complaint is not produced before the Court, the Court cannot disbelieve the case of the plaintiff since D.W.1 has admitted that she has given the complaint against him and the police also enquired him and also it is her evidence that the police have not taken any action. It is important to note that it is the claim of the plaintiff that she is an illiterate and not having worldly knowledge and the same is also admitted by D.W.1 in his cross-examination. It is important to note that he admits that in the said partition deed there are two witnesses i.e., Shivashankar and Channegowda and they 27 have signed the same and both are having acquaintance with them. He admits that no share is given to the daughters in the immovable property. But he categorically deposes that they agreed to give money which they are about to receive. It is emerged in the evidence that a suit was filed and decree was passed since the father of the parties have lent the money and they were about to receive the money. Hence, it is clear that they told her that they would get the money and matter is also pending before the Court regarding recovery of money. It is also the evidence of the plaintiff that she was taken saying that her presence is required in the Court. It is her evidence that she was taken to the Sub-Registrar's office where she questioned the non-payment of the money and all other family members were also present. But her brother did not give any money and she questioned him and they took her signature forcibly. She admits that she did not give any complaint to the Sub-Registrar, but she categorically says that she gave complaint on the very next day of obtaining her signature and the police also came near the house and she is having document and no impediment in producing the same, but not produced. D.W.1 categorically admitted that when the plaintiff gave the complaint, the police 28 enquired him and hence it is clear that immediately she gave the complaint about taking her signature. Admittedly, she is an illiterate and she was not having acquaintance with reading and writing. When such being the case, the learned counsel for the appellant brought to the notice of this Court Rule 73 of the Karnataka Registration Rules, 1965 ('the said Rules' for short). Rule 73 of the said Rules reads as under:
73. Duties of the Registering Officer.- (i) It shall form no part of the Registering Officer's duty to enquire into the validity of a document brought to him for registration or to attend to any written or verbal protest against the registration of a document, provided execution is duty admitted; but in case of executants who are unable to read, the document shall be road out and if necessary explained to them. If the document is in a language which they do not understand it must be interpreted to them.
(ii) If registration is objected to by any person on any of the following grounds, viz.,
(a) that a person appearing or about to appear before the Registering Officer as an executant or claimant the person he professes to be, or that he is a minor, an idiot, or lunatic.,
(b) that the instrument is forged;29
(c) that the person appearing as a representative, assignee or agent has no right to appear in that capacity;
(d) that the executing party is not really dead, as alleged by the party applying for registration.
Such objections shall be duly weighed by the Registering Officer and if they are substantiated, registration shall be refused, but under sub-section (2) of Section 58, if execution be admitted, registration should take place even if the executant refuses to sign the Registering Officer's endorsement of admission."
29. The learned counsel for the respondents would contend that Sections 58 to 60 of the Registration Act, 1908 is clear with regard to the particulars to be endorsed on the documents admitted to registration and also endorsements to be dated and signed by Registering Officer and certificate of registration. No doubt, the document is registered, but nowhere it is mentioned that the contents of the document is explained. Admittedly, the plaintiff is not having acquaintance with reading and writing and she is an illiterate and the same is categorically admitted by D.W.1 in his evidence and there is no compliance of Rule 73 of the said Rules. However, learned counsel for the 30 respondents would contend that the Apex Court in its judgment in the case of Manik Majumder (supra) held that when a document has been duly registered, there is a presumption of correctness and it can be rebutted only by strong evidence to the contrary. No doubt, the document is registered and there is a presumption and presumption has to be rebutted. I have already pointed out that the plaintiff has put her LTM on the document and the document has not been explained to her. D.W.1 categorically admitted that she is an illiterate and she was not having any worldly knowledge and does not know reading and writing and it is her case that her signature was taken saying that she is going to get the money. It is important to note that when the amount was not given, immediately she gave the complaint and admittedly the police called D.W.1 and enquired him, but endorsement was given that issue is before the Court with regard to taking her signature fraudulently and forcibly. These materials clearly disclose that the plaintiff has rebutted her case regarding registration of the case as held by the Apex Court. In view of the principles laid down in the judgment, the said judgment is helpful to the appellant instead of the defendant.
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30. It is important to note that the Orissa High Court in the judgment in the case of Sundar Sahu Gountia (supra) in paragraph No.12 has observed regarding that the principles deducible from a consideration of these authorities may be summarized: To constitute a valid family arrangement the transaction should be one which is for the benefit of the family generally. If an arrangement is acted upon, the Courts will give effect to it on the ground of estoppel or limitation and the like. It is held that if it appears to the Court that one party has taken undue advantage of the helplessness of the other and there is no sacrifice of any right or interest, the agreement is unilateral and is devoid of consideration. It is also held that the consent of the parties should be freely given to the arrangement and gross inadequacy of consideration may be a determining factor in judging whether the consent was freely given.
31. Having taken note of the circumstances under which her signature is taken and she is an illiterate and not having knowledge of reading and writing, it is nothing but the case of taking undue advantage of her helplessness and the agreement is unilateral and the same is devoid of consideration. On perusal of document Ex.D.1, no consideration was paid and it is only 32 agreed to pay the amount which they are going to receive from the Court with regard to recovery of money decree which was granted against the borrower, who has received the amount from the father of the parties. It is a settled principle of law that a promise to do a thing or the actual doing of it will not be a good consideration.
32. This Court would like to refer to the judgment of the Apex Court in the case of Prem Singh (supra). In paragraph No.14 it is categorically held that a suit for cancellation of instrument is based on the provisions of Section 31 of the Specific Relief Act. Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. If the instrument has been registered under the Indian Registration Act, 1908, the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation. Section 31 of the Specific Relief Act 33 depicts with regard to when cancellation can be ordered and the First Appellate Court reversed the judgment on the ground that no cancellation is sought. In paragraph No.15, the Apex Court held that Section 31 of the Specific Relief Act, 1963 thus, refers to both void and voidable documents. It provides for a discretionary relief. It is observed in paragraph No.16 that when a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non est in the eye of the law, as it would be a nullity.
33. In the case on hand, it is clear that the plaintiff was taken to the Sub-Registrar's office promising that she would get the money but, no such money was given and hence she gave the complaint on the very next day that her signature was taken fraudulently and no money was given. I have already pointed out that she is an illiterate and there is an admission and taken the undue advantage of her illiteracy, but the First Appellate Court committed an error in reversing the finding of the Trial Court in coming to the conclusion that no cancellation is sought in respect of the document. The First Appellate Court failed to 34 take note of the very proviso of Order VII Rule 7 of CPC, which reads as follows:
"7. Relief to be specifically stated.- Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."
34. The Division Bench of this Court in the case of Rangappa (supra), while considering Order VII Rule 7 of CPC, in paragraph No.7 discussed the same and observed that the words "and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for" are wide enough to empower the Court to grant such relief as the plaintiff is entitled to, on the facts established on the evidence on record, even if such relief has not been specifically prayed for.
35. In the case on hand also, though not sought for any cancellation of the said partition deed, the material emerged during the trial is very clear that the plaintiff was an illiterate and 35 undue advantage was taken and promised her to pay the money, but money was not paid. No consideration has been passed. No material is placed for having paid the amount in favour of the plaintiff except disclosing that decree was passed on account of loan lent to the borrower by the father of the parties. Though it was suggested that she has received an amount of Rs.30,000/-, the same was denied by the plaintiff. The First Appellate Court failed to take note of the fact that the complaint was given immediately and also alleged document of Ex.D.1 came into existence in the year 2005 and immediately she filed a suit in 2006 itself and all these factors are not taken note of by the Appellate Court while reversing the finding of the Trial Court and ought to have taken note of Order VII Rule 7 of CPC while moulding the relief as contended by the learned counsel for the appellant.
36. The learned counsel for the appellant relied upon the Division Bench judgment of this Court in the case of Papanna (supra) wherein invoking of Order VII Rule 7 of CPC is discussed in detail in paragraph No.10 and held that the provisions of Order VII Rule 7 of CPC are so widely worded that they do enable the Court to pass a decree for partition in a suit for 36 declaration of title to immoveable property and possession thereof where it turns out that the plaintiff is not entitled to all the interest claimed by him in the suit property. In such a situation there is nothing unusual in giving relief to the parties by directing partition of the suit property according to the share of the parties established in the suit. The normal rule that relief not founded on the pleadings should not be granted is not without an exception. Where substantial matters constituting the title of all the parties are touched in the issues and have been fully put in evidence, the case does not fall within the aforesaid rule. The Court has to look into the substance of the claim in determining the nature of the relief to be granted. Of course, the Court while moulding the relief must take care to see that relief it grants is not inconsistent with the plaintiff's claim, and is based on the same cause of action on which the relief claimed in the suit, that it occasions no prejudice or causes embarrassment to the other side; that it is not larger than the one claimed in the suit, even if, the plaintiff is really entitled to it, unless he amends the plaint; that it had not been barred by time on the date of presentation of the plaint.
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37. In the case on hand, the plaintiff has sought for the relief of partition and contend that her signature was taken by taking undue advantage that she is an illiterate and I have already pointed out that no consideration is passed in respect of Ex.D.1. The recitals of Ex.D.1 is clear that they promised to pay the amount out of the amount the family is entitled to. It is her case that her signature was taken misrepresenting that they are going to get the money and she is also entitled for equal amount and hence all the family members were gathered and signatures were taken in the Sub-Registrar's office and when she questioned why they have not given money, they have not properly responded and immediately she gave the complaint and the police enquired into the matter, but not taken any action. When such being the case, the First Appellate Court ought not to have reversed the finding of the Trial Court in coming to the conclusion that the plaintiff has not sought for any cancellation of the document Ex.D.1. The principles laid down in the judgments is clear and there is no need to seek for the relief of cancellation when undue advantage was taken. Admittedly, the plaintiff is an illiterate and not having worldly affairs and does not know reading and writing and the contents of the document 38 is not explained to her in the Sub-Registrar's office as contemplated under Rule 73 of the said Rules. It is the case of the plaintiff that she demanded for partition and no share was given. In support of her claim with regard to demand of partition is concerned, P.W.2 and P.W.3 have supported the case of the plaintiff and nothing is elicited in the cross-examination of P.W.2 and P.W.3 and apart from that D.W.3 who claims that he is a signatory to the document Ex.D.1, admits that he has identified the signature only on the say of his father and also admits that while identifying the signature, full details of address is required and the same is not mentioned in Ex.D.1. He admits that he cannot tell who have identified the signature along with him without looking into the document. He admits that he does not know the contents of the document Ex.D.1. When such admissions were given with regard to execution of Ex.D.1, the First Appellate Court failed to take note of both oral and documentary evidence placed on record and erroneously comes to the conclusion that no relief of cancellation is sought and hence the very suit itself is not maintainable and the very approach of the Appellate Court is erroneous and the same is against the material on record which amounts to perversity and 39 ought to have moulded the relief as contemplated under Order VII Rule 7 of CPC in the absence of relief of cancellation.
38. The Trial Court while passing the judgment taken note of the material on record and considered the pleadings of the parties in paragraph No.17 that there is no dispute with regard to the relationship between the parties and no dispute with regard to the registration of the document and taken note of the contents of Ex.D.1 in paragraph No.18 and also extracted the recitals of the document Ex.D.1. It is the claim of the defendants that the plaintiff has relinquished her right while attesting the document of Ex.D.1. The circumstances under which her signature was taken is also taken note of by the Trial Court in paragraph No.25 of the judgment and extracted the recitals for registration of the said document and the reference is made in the document with regard to the daughters are not having interest in claiming any share. Since the plaintiff has raised the dispute with regard to the document Ex.D.1, the Court cannot rely upon the recitals of Ex.D.1 and taken note of both oral and documentary evidence placed on record in paragraph No.26 and not accepted the evidence of defendant No.5 who claims that he had purchased the property in the year 1997-98. 40 The claim of the defendants is that partition was taken place ten years prior to reducing the same into writing and Ex.D.1 came into existence on 04.03.2005 and hence the Trial Court comes to the conclusion that when the partition took place on 04.03.2005, how come defendant No.5 purchased the property in the year 1997-98 and did not accept the case of the defendants with regard to the properties are self-acquired. It is important to note that it is the claim of the defendants that by selling gold ornaments the property was purchased by the mother, but no material is placed before the Court. When such being the case, the Appellate Court ought not to have come to the conclusion that without seeking the cancellation of partition deed, the very suit itself is not maintainable and also committed an error in coming to the conclusion that the suit schedule properties are the self-acquired properties of defendant Nos.1 and 5 and these findings are against the material on record and hence I answer both the substantial questions of law framed by this Court in the negative.
39. In view of the discussions made above, I pass the following:
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ORDER
(i) The appeal is allowed.
(ii) The judgment and decree dated 03.04.2017
passed in R.A.No.6/2012, on the file of the II
Additional Senior Civil Judge and JMFC,
Mandya is set aside.
(iii) The judgment and decree dated 06.02.2012 passed in O.S.No.56/2006, on the file of the Additional Civil Judge (Jr.Dn.), Mandya is restored.
Sd/-
JUDGE cp*/MD