Karnataka High Court
Shankaragouda S/O. Gurunagouda Patil vs Rudragouda S/O. Guranagouda Patil on 28 July, 2023
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.100351 OF 2014
BETWEEN:
SHANKARAGOUDA
S/O. GURUNAGOUDA PATIL
SINCE DECEASED BY HIS LR's.
1. SMT. PARIMALAVVA
W/O. SHANKARAGOUDA PATIL,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O. BASAVANAGUDI NAGAR,
RANEBENNUR,
DIST: HAVERI - 581 110.
2. VISHWANATH
S/O. SHANKARAGOUDA PATIL ,
AGE: 51 YEARS, OCC: AGRICULTURE,
3. DAYANAND
S/O. SHANKARAGOUDA PATIL,
SINCE DECEASED BY HIS LR's
3(A) SMT. LALITA
Digitally
signed by
W/O. DAYANAND PATIL,
SHIVAKUMAR
SHIVAKUMAR HIREMATH
HIREMATH Date:
AGE: 47 YEARS, OCC: HOUSEHOLD,
2023.08.01
10:09:43 -
0700
R/O. KANCHAGAR ONI,
RANEBENNUR - 581 115.
3(B) KUMARI. SAHANA
D/O. DAYANAND PATIL,
AGE: 22 YEARS, OCC: STUDENT,
R/O. KANCHAGAR ONI, RANEBENNUR,
TQ: RANEBENNUR,
DIST: HAVERI - 581 110.
3(C) RAKSHIT
S/O. DAYANAND PATIL,
AGE: 20 YEARS, OCC: STUDENT,
R/O. KANCHAGAR ONI, RANEBENNUR,
-2-
TQ: RANEBENNUR,
DIST: HAVERI - 581 110.
(AMENDMENT CARRIED OUT AS PER
ORDER DATED 09/06/2022)
4. SMT. NIRMALA
W/O. B.G. HALAPPA,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O: SAGAR PETH, TQ: CHENNAGIRI,
DIST: DAVANAGERE - 577 001.
5. SMT. SUMITRA
W/O. ISHWARGOUDA PATIL,
AGE: 51 YEARS, OCC: AGRIL.,
6. KUM. CHINMAI
D/O. CHANDRASHEKARGOUDA PATIL,
AGE: 18 YEARS, OCC: STUDENT,
7. KUM. PALLAVI
D/O. CHANDRASHEKARAGOUDA PATIL,
AGE: 20 YEARS, OCC: STUDENT,
APPELLANT NOS.5 TO 7 ARE
R/O. BASAVANAGUDI NAGAR,
RANEBENNUR,
DIST: HAVERI - 581 115. ... APPELLANTS
(BY SRI DINESH M. KULKARNI, ADVOCATE FOR A-3 (A TO C))
AND:
RUDRAGOUDA
S/O. GURANAGOUDA PATIL,
(SINCE DECEASED BY HIS LR's)
1. PARAMESHWARAGOUDA
S/O. RUDRAGOUDA PATIL ,
AGE: 62 YEARS,
OCC: AGRICULTURE,
2. CHANDRASHEKARGOUDA,
S/O. RUDRAGOUDA PATIL,
AGE: 59 YEARS,
OCC: AGRICULTURE,
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3. RAJASHEKHARGOUDA
S/O. RUDRAGOUDA PATIL,
(SINCE DECEASED BY HIS LR's)
3(A) GANGAMMA,
W/O. RAJASHEKARGOUDA PATIL,
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O: C/O. SOUMY JAGADISH .B
NO.624/28, 1ST A MAIN ROAD,
NEAR TEMPLE TREES APARTMENT,
ITTAMADAGU, BSK-3RD STAGE,
BENGALURU - 560 085.
3(B) SHARAT
S/O. RAJASHEKHARGOUD PATIL,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O. C/O. SOUMY JAGADISH .B
NO.624/28, 1ST A MAIN ROAD,
NEAR TEMPLE TREES APARTMENT,
ITTAMADAGU, BSK-3RD STAGE,
BENGALURU - 560 085.
3(C) SOUMYA
W/O. JAGADISH .B
AGE: 24 YEARS, OCC: HOUSEHOLD,
R/O. C/O. SOUMY JAGADISH .B
NO.624/28, 1ST A MAIN ROAD,
NEAR TEMPLE TREES APARTMENT,
ITTAMADAGU, BSK-3RD STAGE,
BENGALURU - 560 085.
4. MAHESHWARGOUDA
S/O. RUDRAGOUDA PATIL,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O. RANEBENNUR,
DIST: HAVERI - 581 115.
5. SHASHIKALA
W/O. K. SHADAKHARAIAH,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O. RANEBENNUR,
DIST: HAVERI - 581 115.
6. SAROJA
W/O. JAGANNATH PATIL,
AGE: 48 YEARS, OCC: HOUSEHOLD,
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R/O. KOTEMALLUR, TQ: HONNALI,
DIST: SHIMOGA - 577 217.
7. RENUKA
W/O. HALESH
AGE: 46 YEARS, OCC: HOUSEHOLD,
R/O. MALEBENNUR, TQ: HONNALI,
DIST: SHIMOGA - 577 217.
GANGANAGOUDA
S/O. GURUNAGOUDA PATIL,
(SINCE DECEASED BY HIS LR's)
8. MALLAMMA
W/O. GANGANAGOUD PATIL,
AGE: 80 YEARS, OCC: HOUSEHOLD,
R/O. RANEBENNUR,
DIST: HAVERI - 581 115.
9. JAYYAMMA
W/O. BASAVARAJAPPA @ B.G. JAYYAMMA,
(SINCE DECEASED BY HER LR's)
9(A) LINGARAJ B.G.
S/O. BASAVARAJAPPA B.G.
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O. KOTEMALLUR, TQ: HONNALLI,
DIST: DAVANAGERE - 583 131.
9(B) SMT. PRATIBHA
W/O. BABU C. YELI,
AGE: 37 YEARS, OCC: HOUSEHOLD,
R/O: NEHARU NAGAR,
BYADAGI, TQ: BYADAGI,
DIST: HAVERI - 581 115.
9(C) GANESH B.G.
S/O. BASAVARAJAPPA B.G.
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: KOTEMALLUR, TQ: HONNALLI,
DIST: DAVANAGERE - 583 131.
10. B. PUTTAMMA
W/O. BASANAGOUDA
AGE: 61 YEARS, OCC: HOUSEHOLD,
R/O: ANAGIGERE, TQ: HARAPANAHALLI,
DIST: DAVANAGERE - 583 131.
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11. A.B. RATNAMMA @ RATNAMMA
W/O. BASAVARAJAPPA,
AGE: 57 YEARS, OCC: HOUSEHOLD,
R/O. SHIRAMAGONDANAHALLI,
TQ. AND DIST: DAVANAGERE - 577 001.
12. JAGANNATH
S/O. GANGANAGOUDA PATIL
AGE: 55 YEARS, OCC: BUSINESS,
R/O. RANEBENNUR,
DIST: HAVERI - 581 115.
13. SHIVANAGOUDA
S/O. GANGANAGOUDA PATIL
AGE: 53 YEARS, OCC: BUSINESS
R/O. RANEBENNUR,
DIST: HAVERI - 581 115..
LINGANAGOUDA
S/O. GURUNAGOUDA PATIL
(SINCE DECEASED BY HIS LR's)
14. SHANKRAMMA
W/O. LINGANAGOUDA PATIL,
AGE: 75 YEARS, OCC: HOUSEHOLD,
R/O. RANEBENNUR,
DIST: HAVERI - 581 115.
15. ASHOKA
S/O. LINGANAGOUDA PATIL
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O. RANEBENNUR,
DIST: HAVERI - 581 115.
16. VEENA
W/O. BHARAMAPPA GUNDARA,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O. DEVIHOSUR,
TQ. AND DIST: HAVERI - 581 115.
17. SAVITA
W/O. GANGANAGOUDA PATIL,
AGE: 53 YEARS, OCC: HOUSEHOLD,
R/O. MUDENUR, TQ: RANEBENNUR ,
DIST: HAVERI - 581 115.
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MRUTYUNJAYAGOUDA
S/O. GURUNAGOUDA PATIL
(SINCE DECEASED BY HIS LR's)
18. KALLAMMA
W/O MRUTYUNJAYAGOUDA PATIL,
AGE: 57 YEARS,
OCC: AGRICULTURE,
R/O. BASAVANAGUDI NAGAR,
DIST: HAVERI - 581 115.
19. PRAMOD
S/O. MRUTYUNJAYAGOUDA PATIL
AGE: 27 YEARS,
OCC: AGRICUTLURE,
R/O. BASAVANAGUDI NAGAR,
DIST: HAVERI - 581 115.
20. KUM. NIRMALA
D/O. MRUTYUNJAYAGOUDA PATIL,
AGE: 25 YEARS,
OCC:AGRICULTURE,
R/O. BASAVANAGUDI NAGAR,
DIST: HAVERI - 581 115.
21. KUM. LATA
D/O. MRUTYUNJAYAGOUDA PATIL,
AGE: 23 YEARS,
OCC: AGRICULTURE,
R/O. BASAVANAGUDI NAGAR,
DIST: HAVERI - 581 115.
22. KUM. BHARATI
D/O. MRUTYUNJAYAGOUDA PATIL,
AGE: 25 YEARS,
OCC: AGRICULTURE,
R/O. BASAVANAGUDI NAGAR,
DIST: HAVERI - 581 115.
23. BASANAGOUDA
S/O. GURANAGOUDA PATIL,
AGE: 79 YEARS,
OCC: AGRICULTURE,
R/O: MRUTYUNJAY NAGAR,
RANEBENNUR,
DIST: HAVERI - 581 115.
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24. SHIVANAGOUDA
S/O. GURANAGOUDA PATIL,
AGE: 77 YEARS,
OCC: AGRICULTURE,
R/O. RANEBENNUR,
DIST: HAVERI - 581 115.
25. MAHADEVAGOUDA
S/O. GURANAGOUDA PATIL,
AGE: 79 YEARS, OCC: AGRICULTURE,
R/O. MRUTYUNJAY NAGAR,
RANEBENNUR,
DIST: HAVERI - 581 115.
26. CHANNABASANAGOUDA
S/O. GURANAGOUDA PATIL,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O. RANEBENNUR,
DIST: HAVERI - 581 115. ... RESPONDENTS
(BY SRI S.N. BANAKAR AND SRI M.B. PATIL, ADVOCATE FOR
R-14 TO R-19, R-21, R-22;
SRI MRUTYUNJAYA TATA BANGI, ADVOCATE FOR R-1, R-2,
R-4 TO R-8, R-10 TO R-12 & R-14;
SRI V.P. KULKARNI, ADVOCATE FOR R-25;
SRI AVINASH BANAKAR, ADVOCATE FOR C/R-13;
V.C.O. DATED 12/01/2015 NOTICE TO R-23 IS HELD SUFFICIENT;
V.C.O. DATED 10/08/2015 NOTICE TO R-26 IS HELD SUFFICIENT;
R-3(A TO C), R-9 (A TO C), R-20 & R-24 ARE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 02.04.2014 PASSED IN
R.A.NO.63/2006 ON THE FILE OF THE II ADDITIONAL DISTRICT
JUDGE, AT HAVERI (SITTING AT RENEBENNUR), DISMISSING THE
APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED
26.06.2006 AND THE DECREE PASSED IN OS NO.36/1999 ON THE
FILE OF THE ADDITIONAL CIVIL JUDGE (SR. DN.), RANEBENNUR,
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
09/06/2023 FOR JUDGMENT AND COMING FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
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JUDGMENT
The present appeal by the legal representatives of defendant No.2 assailing the impugned judgment and decree dated 02.04.2014 in R.A.No.63/2006 on the file of II Addl. District & Sessions Judge at Haveri, sitting at Ranebennur and the judgment and decree in O.S.No.35/1999 dated 26.06.2006 on the file of the Addl. Civil Judge (Sr.Dvn.), Ranebennur.
2. The parties herein are referred to as per their ranking before the trial Court for the sake of convenience. I. Plaint averments:
3. The suit for partition and separate possession seeking 4/5th share in the undivided joint family property against defendant No.1-father of the plaintiffs and defendant Nos.2 to 6. It is averred that the suit schedule property was standing in the name of defendant No.1 and for the sake of convenience and to show the small holdings, the plaintiffs and defendant Nos.1 to 6 had entered into a partition of the family property and accordingly, the suit schedule property had fallen to the -9- share of defendant No.1. It is further stated that on 16.05.1990, an agreement was entered between defendant No.1 and his children in respect of the suit schedule property, in spite of an agreement entered, wherein, specific share has been allotted in the suit schedule property, defendant No.2 taking advantage of old age of defendant No.1 has got executed registered gift deed in his favour in respect of the suit schedule property. It is averred in the plaint that defendant No.2 is only entitled for 1/5th share and execution of the gift deed by defendant No.1 as alleged is contrary to the agreement dated 16.05.1990. The plaintiffs, during the pendency of the suit filed a memo stating that they have given up their contention regarding the earlier partition. II. Written statement by defendant Nos.1 and 2:
4. Defendant Nos.1 and 2 have jointly filed their written statement denying the plaint averments and specifically contended that there was a partition effected in respect of the family properties, pursuant to which, defendant No.1 was the exclusive owner of the suit
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schedule property and is not the joint family property of the plaintiffs and defendants as contended in the plaint. As defendant No.1 was the exclusive owner of the suit schedule property, the gift deed executed in favour of defendant No.2 is legal and valid and neither the plaintiffs nor the other defendants have any right, title and interest in respect of the suit schedule property.
5. The Trial Court framed seven issues for consideration. In order to substantiate their claim, plaintiffs examined themselves as PWs.1 to 4 and got marked the documents at Exs.P-1 to P-8. On the other hand, defendants examined the son of defendant No.2 as DW.1 and one witness as DW.2 and got marked documents at Exs.D-1 to D-39.
6. The trial Court on the basis of the pleadings, oral and documentary evidence held as under:
(i) That the plaintiffs have proved that the suit schedule property is in joint possession and enjoyment of the plaintiffs and defendant No.2 as per the agreement dated 16.05.1990.
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(ii) That defendant No.2 has failed to prove that defendant No.1 had obtained possession from plaintiff for breach of condition of the agreement dated 16.05.1990 and the suit schedule property was leased in favour of defendant No.2 in the year 1997 on yearly rent.
(iii) That defendant No.2 failed to prove that defendant No.1 had gifted the suit schedule property under registered gift deed dated 12.04.1999.
(iv) That the plaintiffs have proved the alleged gift deed in favour of defendant No.2 was obtained on committing fraud on defendant No.1 and as such, it is void.
(v) The trial Court by its judgment and decree, decreed the suit of the plaintiffs awarding 4/5th share in the suit schedule property.
7. Aggrieved by the said judgment, the legal representatives of defendant No.2 preferred appeal before the First Appellate Court.
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8. The First Appellate Court by its impugned judgment and decree held that defendant No.2 has failed to prove the gift deed dated 12.04.1999 in his favour and that the plaintiffs are entitled for partition and separate possession by confirming the judgment and decree of the trial Court.
9. It is relevant to note here, that the First Appellate Court at para No.33 considered the memo filed by the plaintiffs to give up the contention that there is no partition in the family and holds that in view of the memo, the contention of the plaintiffs in para No.1 of the plaint stating there was no partition does not survive for consideration.
10. Aggrieved by the concurrent findings of the Courts below, the present appeal by the legal representatives of defendant No.2.
11. This Court while admitting the appeal on 11.09.2015 has framed the following substantial question of law:
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"i. Whether the Courts below justified in decreeing the suit ignoring Ex.D-9 - registered gift deed?
ii. Whether the Courts below justified in decreeing the suit when the 1st defendant filed a written statement and categorically stated that he has executed a gift deed?
iii. Whether the Courts below justified in decreeing the suit when the plaintiffs have not filed any proceedings to enforce Ex.P-8? iv. Whether the Courts below justified in decreeing the suit when the suit is filed for partial partition?
v. Whether the Courts below justified in
decreeing the suit in the facts and
circumstances of the present case?"
12. Heard Sri Dinesh M.Kulkarni, learned counsel for the appellants and Sri S.N.Bankar, learned counsel for the respondents on the substantial question of law framed by this Court.
III. Contention of learned counsel for the appellants:
13. Learned counsel for the appellants would urge the following grounds:
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(i) That the suit for partial partition is not maintainable;
(ii) By filing a memo, the plaintiffs wanted to withdraw the averments made at para No.1 of the plaint about division and various properties given to the family members and would contend that the said memo was rightly not considered by the Trial Court, however, the First Appellate Court, on the basis of the memo, conclusion arrived that para No.1 of the plaint would not survive for consideration, is totally erroneous.
(iii) That defendant No.1 has executed a registered gift deed in favour of defendant No.2, in the absence of denial by defendant No.1 during his life time and the written statement having jointly filed by defendant Nos.1 and 2 by denying the plaint averments, in view of the categorical admission of defendant No.1 about the execution of the gift deed in the written statement and notice, and further before the revenue authorities, there is no need for further proof of
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the said document as envisaged under Section 58 of the Indian Evidence Act, 1872.
(iv) The mandatory provision as envisaged under Sections 122 and 123 of the Transfer of Property Act, 1882 in respect of the gift deed has been complied and the mutation entry has been effected in the name of defendant No.2.
14. It is contended that Ex.P-8 relied upon by the plaintiffs to contend that, the agreement has been acted upon is contrary to O.S.No.243/1994 filed by one of the son Mahadevagouda seeking for share in the suit schedule property on the ground that agreement at Ex.P-8 is not acted upon and by way of a compromise entered by defendant No.1, an area measuring 1 acre 16 guntas in the suit schedule property was given to the share of Mahadevagouda by defendant No.1, which invariably shows that defendant No.1 was the exclusive owner of the suit schedule property and the agreement as alleged at Ex.P-8 was not acted upon. The learned counsel for the appellant has placed reliance on the following judgments:
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(a) Sri Tukaram vs. Sri Sambhaji and others [ILR 1998 KAR 681] (Tukaram)
(b) Govindbhai Chhotabhai Patel and others vs. Patel Ramanbhai Mathurbhai [(2020) 16 SCC 255] (Govindbhai Chhotabhai Patel)
(c) Nagindas Ramdas vs. Dalpatram Ichharam alias Brijram and others [(1974) 1 SCC 242] (Nagindas Ramdas)
(d) Smt. Nagi Yane Devaki vs. Harichandra Thaku Tandel [W.P.No.102567/2015] (Smt. Nagi Yane Devaki)
(e) Ram Das vs. Salim Ahmed and another [(1998) 9 SCC 719] (Ram Das) IV. Contention of learned counsel for the respondents
15. Per contra, learned counsel for the respondents
-plaintiff would contend that:
(i) The Trial Court and the First Appellate Court have rightly come to the conclusion that the plaintiffs are entitled for a share in the suit schedule property.
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(ii) Exs.P-2 and Ex.P-3 are the documents which evidence that defendant No.1 was hospitalized and was not in a position to execute the gift deed as alleged by defendant No.2 and that the gift deed was obtained by fraud and force.
(iii) The judgment and decree of the Courts below were justified and the same does not call for any interference under Section 100 of CPC and the substantial question of law needs to be answered against the appellant.
16. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record including the original records.
V. CONCLUSION:
17. The relevant facts of the case are that, there was a prior partition effected in respect of the family properties of the plaintiffs and defendants, though the plaintiffs tried to take away the pleadings by filing a memo, since a memo cannot create or take away right,
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which is already pleaded by the parties. What is relevant to note here, that the plaint averments at para No.1 states as under:
"3) 1£Éà ¥ÀæwªÁ¢ UÀÄgÀÄ£ÀUËqÀ£À ºÉ¸ÀgÀ°è zÁªÁzÀ D¹Û SÁvÉà EzÀÄÝ CzÀgÀ°è JgÀqÀÄ ¹ÃqÀì ¥ÉÇæ¸É¹AUï ªÀIJ£ï, 4 dgÀr EgÀĪÀ MAzÀÄ ºÁUÀiÁ JgÀqÀÄ dgÀr EgÀĪÀ MAzÀÄ ªÀIJ£ï EzÀÄÝ CªÀÅUÀ½UÉ ¥ÀævÉåÃPÀ PÀlÖqÀUÀ½gÀÄvÀÛªÉ. C®èzÉà £Á®ÆÌ ºÀwÛ dgÀrUÀ¼ÀÄ MAzÀÄ rPÁlPÉÃlgï ¸ÀºÀ EgÀÄvÀÛzÉ. EªÀÅUÀ½UÉ®è ¥ÀævÉåÃPÀ PÀlÖqÀUÀ½gÀÄvÀÛzÉ.
PÁgÀt zÁªÁzÀ D¹Û ºÁUÀÆ CzÀgÀ°ègÀĪÀ ªÀIJ£ïUÀ¼ÀÄ ªÀÄvÀÄÛ PÀlÖqÀUÀ¼ÀÄ ªÁ¢AiÀÄgÀ ºÁUÀÆ 2£Éà ¥ÀæwªÁ¢AiÀÄ ¸ÁªÀÄÆ»PÀ ªÀiÁ°Ì ªÀ»ªÁnAiÀĪÀÅ EgÀÄvÀÛªÉ. CzÀÄ 1£Éà ¥ÀæwªÁ¢AiÉƧâ£À ªÀiÁ°Ì ªÀ»ªÁnAiÀÄ D¹Û EgÀĪÀÅ¢®è. F §UÉÎ ªÁ¢ªÀ ¥ÀæwªÁ¢AiÀÄgÀ M¦àUÉ ¥ÀæPÁgÀ 1£Éà ¥ÀæwªÁ¢ vÁ||16-05-1990 gÀAzÀÄ PÀgÁgÀÄ ¥ÀvÀæ ¥ÀæwªÁ¢AiÀÄjUÉ ºÁUÀÆ 2£Éà ¥ÀæwªÁ¢AiÀÄ ºÉ¸ÀgÀ°è §gÉzÀÄPÉÆnÖzÀÄÝ ªÀÄÆ® PÀgÁgÀÄ ¥ÀvÀæ 2£Éà ¥ÀæwªÁ¢ vÁ¨Á EgÀÄvÀÛzÉ. CzÀgÀ eÉgÁPïì ªÁ¢AiÀÄjUÉ PÉÆnÖgÀÄvÁÛgÉ."
18. PW.1 in his cross-examination, admits about the prior partition effected between the family members in respect of the family properties and accordingly, the suit schedule property was allotted to the share of defendant No.1. It is the case of the plaintiffs that agreement was entered into by defendant No.1 and plaintiffs, defendant No.2 and one Mahadevagouda on 16.5.1990, the perusal of the said agreement, which is at Ex.P-8 evidences that
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sons, namely, plaintiffs and defendant No.2 were given possession of the suit schedule property and the sons inturn had to pay a sum of Rs.50,000/- to Mahadevagouda and also pay a sum of Rs.15,000/- as maintenance to defendant No.1 and in failure to pay the said amount, defendant No.1 was at liberty to transfer the said property as per his wish. The said agreement at Ex.P-8, also states that the sons have to run the mill and western 56 guntas have to go to defendant Nos.3 to 6, each to take 14 guntas over remaining portion of the said property. According to the plaintiff, pursuant to the agreement dated 16.05.1990, having allotted share in favour of all the sons of defendant No.1, defendant No.1 could not have gifted the suit schedule property in favour of defendant No.2.
19. What can be gathered from the entire material placed before this Court is that, the plaintiffs aver three contentions, i.e.,
1) there was a prior partition effected in respect of the family properties and in view of which, the suit
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schedule property was allotted to defendant No.1 and the suit schedule property is the absolute property of defendant No.1;
2) That there was an agreement dated 16.05.1990 as per Ex.P-8 and the suit schedule property was allotted to the share of the plaintiffs and defendant No.2.
3) Pursuant to the agreement dated 16.05.1990, defendant No.2 is entitled only to 1/4th share and the execution of gift deed in favour of defendant No.2 is obtained by playing fraud on defendant No.1.
20. P.W.1 in his cross-examination admits about partition in respect of the family properties, relevant portion of the cross-examination of P.W.1 reads as under:
"gÀÄzÀæUËqÀ §¸À£ÀUËqÀ ªÀÄvÀÄÛ °AUÀ£ÀUËqÀ vÀªÀÄä vÀªÀÄä »¸ÉìUÉ §AzÀ D¹ÛUÀ¼À£ÀÄß ªÀÄvÉÛ »¸Éì ªÀiÁr vÀªÀÄä vÀªÀÄä ªÀÄPÀ̽UÉ PÉÆnÖzÁÝgÉ CAzÀgÉ ¤d.
gÀÄzÀæUËqÀ §¸À£ÀUËqÀ ªÀÄvÀÄÛ °AUÀ£ÀUËqÀ ºÀ®UÉÃjUÉ ºÉÆÃzÀ £ÀAvÀgÀ G½zÀ DgÀÄ d£À UÀAqÀÄ ªÀÄPÀ̽UÉ £ÀªÀÄä vÀAzÉ gÁtÂèɣÀÆßgÀÄ ºÀ¢ÝAiÀÄ°èzÀÝ j ¸À £ÀAB438 ªÀÄvÀÄÛ 415 gÀ°è D¥ï¸Ávï »¸Éì ªÀiÁrPÉÆnÖzÁÝgÉ CAzÉæ ¤d. D §UÉÎ £ÁªÉ¯Áè M¦àPÉÆAqÀÄ ¸À» ªÀiÁrzÉÝêÉ. D D¥ï¸Ávï ªÁnß ¥ÀæPÁgÀ £ÀªÀÄä vÀAzÉ ªÀgÀ¢ PÉÆnÖzÁÝgÉ CzÀPÉÌ £ÁªÉ¯Áè ¸À» ªÀiÁrzÉÝÃªÉ CAzÉæ ¤d FUÀ £ÉÆÃqÀÄwÛgÀĪÀ ªÀgÀ¢
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CzÉà EzÉ CzÀ£ÀÄß ¤r-1 CAvÁ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. CzÀgÀ ªÉÄÃ¯É EgÀĪÀ ¸ÁQëzÁgÀgÀ ¸À»UÀ¼À£ÀÄß ¸ÁQëzÁgÀgÀÄ £ÉÆÃr UÀÄgÀÄw¹zÀÄÝ CªÀÅUÀ¼À£ÀÄß ¤r-1J ¢AzÀ ¤r-1f ªÀgÉUÉ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. D ªÀgÀ¢AiÀÄ°è §¸À£ÀUËqÀ gÀÄzÀæUËqÀ ªÀÄvÀÄÛ °AUÀ£ÀUËqÀ EªÀjUÉ ºÀ®UÉÃj D¹ÛUÀ¼À£ÀÄß PÉÆqÀ¯ÁVzÉ. CAvÁ §gÉAiÀįÁVzÉ CAzÉæ ¤d. FUÀ vÉÆÃj¹zÀ £ÀPÉë ªÀj¢AiÀÄ eÉÆvÉ £ÁªÉà ¸À°è¹zÀ £ÀPÉë EzÉ CzÀ£ÀÄß ¤r-2 CAvÁ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. FUÀ vÉÆÃj¹zÀ "AiÀÄÄ" ¥üÁªÀÄïðUÉ £ÁªÀÅ DgÀÄ d£À UÀAqÀÄ ªÀÄPÀ̼ÀÄ ºÁUÀÆ £ÀªÀÄä vÀAzÉ ªÀÄvÀÄÛ vÁ¬ÄAiÀÄgÀÄ ¸À» ªÀiÁrzÁÝgÉ CzÀ£ÀÄß ¤r-3 CAvÁ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ªÀgÀ¢ PÉÆlÖ PÁ®PÉÌ PÀÆ£À¨ÉêÀÅ UÁæªÀÄzÀ D¹Û £ÀªÀÄä vÀAzÉ vÁ¬Ä ElÄÖPÉÆArzÀÝgÀÄ CAzÀgÉ ¤d. ................zÁªÁ ¸À.£ÀA.438 MlÄÖ 3J-11 UÀÄAmÉ £ÀªÀÄä vÀAzÉAiÀĪÀgÀ »¸ÉìUÉ §AzÀ D¹Û EzÉ. CAzÀgÉ ¤d. 3J-11 UÀÄAmÉ ¥ÉÊQ 1J-35 UÀÄAmÉ d«ÆãÀ£ÀÄß £ÀªÀÄä vÀAzÉ ªÉÆzÀ®Ä gɹqɤìAiÀÄ°è J£ï.J. ªÀiÁr¹zÀÝgÀÄ CAzÀgÉ ¤d. £ÀAvÀgÀ EAqÀ¹ÖçAiÀįï J£ï.J. ªÀÆr¹zÁÝgÉ CAzÀgÉ ¤d."
21. The plaint averments categorically state that there is no partition in respect of other properties of the plaintiffs and the defendants, the categorical admission of P.W.1 that the parties have not partitioned the family properties, the present suit for partial partition in respect of the suit schedule property is not maintainable.
22. In the case of Tukaram stated supra, this Court has held at para No.19 which reads as under:
"19. It has been contended by the Learned Counsel for the appellants that the finding of the I
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Appellate Court to the effect that the suit by one of the co-parceners for partition with respect to one of the items of the Joint Hindu Family property is maintainable in the special circumstances is not proper. During the course of the order, the I Appellate Court has observed that Section 261 of Mulla Hindu Law 15th Edn. at pages 351 and 352 makes it clear that non-alienating co-parceners are entitled in Bombay, Madras and Allahabad to sue the purchaser for partition of the alienated property without bringing a suit for a general partition. In the present case on hand all the non-alienating co- parceners have not filed the suit. The mere fact that the other non-alienating coparceners viz, defendants-7 to 9 did not join the plaintiff in filing the suit is not material. The right of non-alienating co-parcener in Bombay area does not depend upon the whims and fancies of remaining non-alienating co-parceners who for reasons best known to them, may not join the plaintiff in filing suit. Patna and Andhra Pradesh High Courts held that one of the several non-alienating co-parceners cannot sue the purchaser for his own share of the alienated property. It has been observed by the I Appellate Court the law applicable in Bombay area does not prohibit the suit by one of the several non-alienating co-parceners. The I Appellate Court considered the ruling in AIR 1983 SC 124, wherein it has been held that a purchaser can be impleaded even when decree for partition of agricultural lands is pending
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before the Collector for effecting partition. But it is not the case in the present suit. In ILR 1989 Kar 1895 it is held that a partition suit should comprise of all the available properties, as far as possible. That decision has been distinguished by the I Appellate Court as that was not a case of non- alienating co-parcener filing a suit for partition of alienated property. The view that has been taken by the I Appellate Court cannot be stated to be a correct one in the circumstances of the case. It is to be seen that the plaintiff, defendant-1 and defendants-7 to 15 are the members of Joint Hindu Family. There is no partition by metes and bounds of the family properties. The present suit is filed in respect of the suit land only. There are other lands in other villages and also other house properties which have not been included in the suit which are admittedly the joint family properties. It has been observed in Mulla's Hindu Law - 13th Edn. regarding the rights of purchaser of co-parcener's interest. It has been stated that the non-alienating co- parceners are entitled in Bombay, Madras and Allahabad to sue the purchaser for partition of the alienated property without bringing a suit for general partition. It is to be noted that in AIR 1984 AP 84 it has been held that normally a suit instituted for partition should be one for partition of the entire joint family properties and all the interested co- sharers should be impleaded. The suit for partition of specified items can only be an exception. In the
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present case on hand, the 1st defendant has alienated the suit land in favour of defendants-2 to
6. The 1st defendant is the member of the Joint Hindu Family. As already stated that the family has got other several lands and house properties which are the joint family properties. It has been contended by the learned Counsel for the alienees while allotting the share to defendant-1 in the family properties equitable rights of purchasers on partition has to be considered and those rights can be considered only when all the joint family properties are included in the suit for partition. Otherwise, it would be difficult to apply principles of equitable partition. The inclusion of all the joint family properties in the instant suit for partition was necessary and without bringing all the joint family properties into the hotch-pot, the suit for partition of the shares of the members of the joint family in one property which amounts to partial partition is not maintainable. This contention in the circumstances of the case, has force and the same has to be upheld. The reason being, the present suit has been filed by one of the non-alienating co- parceners of the joint family property. The suit has been filed by the non-alienating coparcener with respect to the only property which has been alienated. This is not a suit for general partition. The contention of the alienees is to the effect that if the share of the plaintiff to be worked out if all the joint family properties had been included in the schedule
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then, at a partition, the share of the 1st defendant would have been worked out in order to give equitable relief to the alienees also as they have purchased the property by the 1st defendant. In that view of the matter, the present suit filed by the plaintiff without including all the joint family properties and which prejudices the rights of the alienees who have also been impleaded as parties to the suit, in the circumstances of the case, has to be held that the suit filed by the plaintiff for partial partition without including all the joint family properties is bad in law. The finding given by the Trial Court with respect to the sixth issue has to be maintained and the finding given by the I Appellate Court that the suit is maintainable without including all the joint family properties cannot be held to be proper in the circumstances of the case. Hence, the finding of the I Appellate Court holding that the suit of the plaintiff for partial partition is maintainable should be set aside and the finding of the Trial Court with respect to the sixth issue that the suit is bad for non-joinder of necessary properties to be included in the suit has to be upheld."
In the said case, it is held that the suit for partial partition is not maintainable in view of not including all the joint family properties. In light of the proposition of law and the judgment in Tukaram's case, the suit of the
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plaintiff is not maintainable without including all the joint family properties having contended by the plaintiffs that there is no partition in respect of the other properties.
23. The Apex Court in the case of Ram Das has clearly held that the plaintiff has to establish his case on the basis of the pleadings and not on the weakness of the defendants. Though it is permissible for the defendants to take an inconsistent stand in the written statement, the law is otherwise to the plaintiff to take a specific and definite stand and inconsistent stand is not permissible. The perusal of the pleadings, evidence and the memo filed by the plaintiffs, the plaintiffs are not clear about the specific stand in their pleadings, the suit has to fail on this ground too.
24. The other line of contention of the plaintiffs is that, the gift deed executed by defendant No.1 in favour of defendant No.2 is illegal, as the same having been obtained by playing fraud on defendant No.1. The fact remains that defendant Nos.1 and 2 have jointly filed the written statement, defendant No.1 admitted about the
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execution of the gift deed in favour of defendant No.2, the Courts below have lost sight of this aspect and have come to a conclusion that there is no valid gift in favour of defendant No.2. It is also relevant to note that Ex.P-9-gift deed, the stamp paper was purchased by DW.2 on 12.4.1999 and the same was presented for registration on 15.4.1999 and the document came to be registered on 12.5.1999. The registered gift deed needs to be proved in accordance with Sections 122 and 123 of the Transfer of Property Act. Though the gift deed is required to be compulsorily attested in terms of Section 123 of the Transfer of Property Act, however, the proof of execution of the document is as envisaged under Section 68 of the Evidence Act, which envisages that in respect of any other document, other than Will, it is not necessary to examine any attesting witness. The Apex Court in the case of Govindbhai Chhotabhai Patel stated supra, at para Nos.21, 22 and 25 has held as under:
"21. The other material question is whether the appellants have specifically denied the execution of the gift deed in terms of proviso to Section 68 of the Evidence Act, to make it mandatory for the
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defendant to examine one of the attesting witnesses to prove the gift deed in his favour.
22. Section 68 of the Evidence Act, reads as under:
"68. Proof of execution of document required by law to be attested-If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
x x x
25. The argument of the learned counsel for the appellants is that the attesting witnesses of the gift deed are Bhikhabhai Ramabhai and Karsanbhai Dhulabhai, whereas Solanki Bhikhabhai Ramabhai and Vaid Alkaben Vinodchandra are the witnesses at the time of registration of the document. It is argued that the attesting witnesses of the document have not been examined which is a mandatory
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requirement to prove execution of the gift deed in terms of Section 68 of the Evidence Act. The High Court has held that the appellants have not denied specifically the execution of the gift deed, therefore, it was not necessary for the donee to examine one of the attesting witnesses."
The Apex Court in Govindbhai Chhotabhai Patel's case, held that Section 68 of the Evidence Act makes it mandatory to examine one of the attesting witnesses for the purpose of proving the execution of the Will, but such limitation is not applicable in respect of proof of execution of any document, which has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution is specifically denied.
25. In the present case, the gift deed in dispute is registered and all the requirements under Section 123 of TP Act have been fulfilled. The law requires that the gift deed has to be compulsorily registered, but the mode of proving the document is not by examining the attesting witness as stated by the Courts below. Even assuming for the sake of answering this issue regarding examining the attesting witness, it is relevant to note that D.W.2 was the
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attesting witness, who has been examined in this case, though not necessary.
26. Moreover, defendant No.1 had not disputed the execution of the gift deed during his life time, defendant Nos.1 and 2 jointly having filed their written statement and at para No.12, defendant No.1 admits about the execution of the gift deed in favour of defendant No.2. Ex.D-7 is the notice dated 17.04.1990 issued by defendant No.1 to all the sons stating that defendant No.1 has executed the registered gift deed of the suit schedule property to defendant No.2. Ex.D-8 is an application and Ex.D-10 is the mutation entry effected in favour of defendant No.2, the signature of defendant No.1 in the written statement is not disputed by the plaintiffs. The Trial Court and the First Appellate Court have lost sight of the said aspect and have erroneously come to a wrong conclusion holding that the gift deed is void, illegal and has to be cancelled.
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27. At this stage, Section 58 of the Indian Evidence Act is necessary to be considered in the present case, which reads as under:
"58. Facts admitted need not be proved.--No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."
28. Plain reading of Section 58 envisages that there is no need of proof of a document, when the executant has admitted about the execution. In the present scenario, defendant No.1 being the exclusive owner of the suit schedule property, which aspect is not disputed by the plaintiffs, defendant No.1 having not disputed the execution of the gift deed during his life time, notice issued by defendant No.1 to his other sons stating about the execution of the gift deed in favour of defendant No.2
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and the application submitted to enter the name of defendant No.2 pursuant to the gift deed are the circumstances, which can be held that there is no denial of gift deed by the executant. The Apex Court under similar circumstances, in the case of Nagindas Ramdas stated supra at para No.27 held as under:
"27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself, Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and
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constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."
(Emphasis supplied)
29. The plaintiff though tried to contend that in view of the agreement at Ex.P-8 dated 16.5.1990, all the parties have settled and the properties have been allotted to the five sons of defendant No.1. It is relevant to note that pursuant to the agreement dated 16.5.1990, there was a suit filed by defendant No.5 - Mahadevagouda in respect of the suit schedule property against defendant No.1 and in view of the compromise entered between defendant No.1 and the said Mahadevagouda in the said suit, an area measuring 1 acre 16 guntas in the suit schedule property was given to defendant No.1, the said aspect has been admitted by PW.1 in his cross- examination.
30. In light of the categorical admission of PW.1, the plaint averments and the material on record which
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evidently makes it clear that the suit schedule property was the exclusive property of defendant No.1, defendant No.1 had every right to dispose of the property in any manner as per his wish. The Trial Court and the First Appellate Court have misconstrued the pleadings of the parties and have totally gone on a wrong pretext of the entire facts, which are placed before the Court and has led to an erroneous findings.
31. For the reasons stated supra, the substantial question of law framed by this Court needs to be answered in favour of appellants and this Court pass the following:
ORDER
(i) The Regular Second Appeal filed by the legal representatives of defendant No.2 is hereby allowed.
(ii) The impugned judgments and decree of the Courts below are hereby set aside.
(iii) The suit of the plaintiffs is hereby dismissed.
Sd/-
JUDGE S*