Karnataka High Court
Abdulsab Nannesab Totad @ Jekinkatti vs Sahadevappa Mallappa Suragond on 19 April, 2017
Equivalent citations: 2017 (3) AKR 334
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R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF APRIL 2017
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
R.S.A. NO. 86/2005 (DEC)
BETWEEN:
1. ABDULSAB NANNESAB TOTAD @ JEKINKATTI
SINCE DECEASED BY HIS L.RS.
1A. GOUSUSAB
S/O ABDULSAB TOTAD
AGE : 55 YEARS
OCC:AGRICULTURE
R/O KARADAGI
TALUK SAVANUR
DIST HAVERI-580001.
1B. MAULASAB
S/O ABDULSAB TOTAD
AGE. MAJOR
OCC:AGRICULTURE
R/O KARADAGI
TALUK SAVANUR
DIST HAVERI-580001
1C. GOODUMA
W/O BADESAB SHIGGAON
AGE : MAJOR
OCC:AGRICULTURE &
HOUSEHOLD
R/O KARADAGI
TALUK SAVANUR
DIST HAVERI-580001.
1D. KADARBI
W/O MAKKUMSAB SHIGGAON
AGE : MAJOR
OCC:AGRICULTURE &
HOUSEHOLD
R/O KARADAGI
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TALUK SAVANUR
DIST HAVERI-580001.
... APPELLANTS
(BY SRI G.I. GACHCHINAMATH, ADVOCATE)
AND :
1. SAHADEVAPPA MALLAPPA SURAGOND
SINCE DECEASED BY HIS L.RS.
1A. NINGAWWA
W/O SAHADEVAPPA SURAGOND
1B. DHARAMAPPA
S/O SAHADEVAPPA SURAGOND
1C. CHANNAPPA
S/O SAHADEVAPPA SURAGOND
1D. SURESH
S/O SAHADEVAPPA SURAGOND
ALL ARE MAJORS
R/O SHEELAVANTH SOMAPUR
TALUK SHIGGAON
DIST HAVERI-580001.
2. SHANKARAPPA
S/O MALLAPPA SOMPUR
AGE : 54 YEARS
OCC:AGRICULTURE
AND SERVICE
R/O SHEELAVANTH SOMAPUR
TALUK SHIGGAON
DIST HAVERI-580001.
(SINCE DECEASED BY L.RS.)
2A. MAHESH
S/O.SHANKARAPPA SURAGOND,
AGED ABOUT 45 YEARS,
OCC. AGRICULTURE,
R/O. SHEELAVANT SOMAPUR,
NOW AT HATTIMATTUR,
TQ. SAVANUR, DIST. HAVERI.
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2B. UMESH S/O.SHANKARAPPA SURAGOND,
AGED ABOUT 40 YEARS,
OCC. AGRICULTURE,
R/O. SHEELAVANT SOMAPUR,
TQ. SHIGGAON, DIST. HAVERI.
2C. PRAKASH S/O.SHANKARAPPA SURAGOND,
AGED ABOUT 30 YEARS,
OCC. AGRICULTURE,
R/O. SHEELAVANT SOMAPUR,
TQ. SHIGGAON, DIST. HAVERI.
2D. SMT. SHAILAJA @ SAHILAVVA
W/O.SANGAPPA KARINDI,
AGED ABOUT 38 YEARS,
OCC. HOUSEHOLD WORK,
C/O. PRAKASH SHANKARAPPA SURAGOND
R/O. SHEELAVANTH SOMAPUR,
TQ. SHIGGAON, DIST. HAVERI.
2E. SMT. SUVARNA W/O. MARUTI
AGED ABOUT 35 YEARS,
OCC. HOUSEHOLD WORK,
C/O. PRAKASH SHANKARAPPA SURAGOND
R/O. SHEELAVANTH SOMAPUR,
TQ. SHIGGAON, DIST. HAVERI.
2F. SMT. SHASHIKALA
W/O.HANAMANTHAGOUDA PATIL
AGED ABOUT 33 YEARS,
OCC. HOUSEHOLD WORK,
R/O. SHEELAVANT SOMAPUR,
TQ. KUNDGOL, DIST. HAVERI.
3. SIDDAPPA
S/O MAHADEVAPPA SURAGOND
AGE MAJOR OCC:AGRICULTURE
R/O DUNDASI, TALUK SHIGGAON
DIST HAVERI-580001. ... RESPONDENTS
(BY SRI RAMESH ZIRALI FOR SRI VIGNESHWAR S.
SHASTRI, ADVOCATE FOR R1A TO R1D;
SRI SACHIN S. MAGADUM, ADVOCATE FOR R2A TO R2F;
RESPONDENT NO.3 - SERVED)
THIS RSA IS FILED U/SEC 100 CPC AGAINST THE
JUDGMENT AND DECREE DATED: 15.9.2004 PASSED IN
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R.A.NO. 4/1992 ON THE FILE OF THE CIVIL JUDGE (SR.DN.),
HAVERI, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED: 20.8.1991 PASSED IN OS.NO.
25/1979 ON THE FILE OF THE MUNSIFF, SAVANUR.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.03.2017, AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED THE
FOLLOWING : -
JUDGMENT
The plaintiffs No.1 and 2 are brothers being sons of Mallappa Suragond. First defendant is the son of Mahadevappa, who is another son of Mallappa Suragond. The second defendant is the purchaser of the suit property, which consists of agricultural land to an extent of 1 acre 15 guntas in R.S. No.3/2 of Sheelavanth Somapur village, Shiggaon taluk.
2. The case of the plaintiffs is that the suit property was purchased by the first defendant's father Mahadevappa while he was acting as Manager of the joint Hindu family even during the life-time of his father. Their father, Mallappa had eight sons and they were all living in a joint family till 30.01.1964, Mallappa having died somewhere in the year 1963. On 30.01.1964, there took place an oral partition according to which the suit property was allotted jointly to the plaintiffs, and thus, they became the absolute owners of :5: the suit property. But, the first defendant instituted a suit O.S. No.71/1971 in the Court of Munsiff, Savanur, for permanent injunction against the plaintiffs and dispossessed them from the suit property, probably by virtue of an interim order granted in the suit. This suit having been decreed against the plaintiffs, they preferred an appeal R.A. No.18/1973 to the Court of Civil Judge, Haveri. This appeal was also dismissed. Stating that the said suit was merely for permanent injunction and the decree passed therein did not affect their title, they instituted the suit O.S. No.25/1979 seeking declaration of their title over the suit property and for its possession.
3. The first defendant did not contest the suit. The second defendant filed written statement and admitted the relationship of parties, but, denied the oral partition dated 30.01.1964. He took up a specific stand that the first defendant's father Mahadevappa separated from the joint family while his father was alive because of differences among the women folk of the family. Having come out of the joint family, he started cultivating the land i.e., the suit property belonging to Dyamanagouda as a tenant, and on :6: 01.03.1958, he purchased the suit property from him for a valuable consideration. Thus, the suit property belonged to Mahadevappa exclusively and it was never a part of joint family. With regard to the decree passed in O.S. No.71/1971, the second defendant contended that the said decree would operate as res judicata, and therefore, the plaintiffs could not lay any claim on the suit property. He has pleaded further that on 04.04.1977 he purchased the suit property from the first defendant and since then he has been in possession. He is a bona fide purchaser for value. Therefore, plaintiffs are not entitled to any reliefs.
4. The trial Court by its judgment and decree dated 20.08.1991 dismissed the suit. Challenging this judgment, the plaintiffs preferred an appeal R.A. No.4/1992 to the Court of Civil Judge (Sr. Dn.), Haveri. The First Appellate Court by judgment and decree dated 15.09.2004 allowed the appeal, set aside the judgment of the trial Court and decreed the plaintiffs suit declaring that they were the absolute owners of the suit property and that they were entitled to its possession. Therefore, the legal representatives of second defendant have preferred this second appeal. :7:
5. On 22.03.2005 this appeal was admitted for consideration of the following substantial question of law :
"The contra finding of the First Appellate Court on the basis of Ex.P-1, an unregistered partition deed, that it is admissible for collateral purposes and declaring the title on the basis of Ex.P-1 is perversely contrary to evidence and law?"
6. The learned trial Judge, for dismissing the suit, held that Ex.P-1 was unregistered partition deed. From the recitals found in Ex.P-1 it could be made out that the parties partitioned the joint family properties in the presence of the witnesses. He placed reliance on a judgment of the High Court of Madras reported in AIR 1974 Madras 239 and observed that in case of completed partition, there are three different stages, namely :
i. The stage of effecting a division in status; ii. The stage of dividing the properties by metes and bounds; and iii. The stage of parties taking possession of the properties allotted to them.:8:
It is held in this judgment that everyone of the above stages can be effected orally and no document is necessary as the said stages cannot be said to declare, assign, limit or extinguish any right, title or interest to or in the immovable property. It is only with regard to second stage, division of properties to various members occurs and if the same is reduced to writing it requires registration under Section 17(1)(b) of the Indian Registration Act. The learned Judge has also held that the unregistered partition deed can be admitted in evidence to prove the first and third stages and not the second stage. Therefore, following this principle, the learned Judge further held that on reading Ex.P-1, it becomes clear that the parties to that document partitioned their joint family properties in the presence of the witnesses and this division comes within the scope of the second stage as enunciated in the judgment of the High Court of Madras referred to above. Having come to this conclusion, the learned trial Judge has observed further that the defendant No.2 was a purchaser of the suit property for valuable consideration. Ex.D-1 is a registered sale deed. Therefore, the plaintiffs are not entitled to the relief that they claimed in :9: the plaint and thus the suit came to be dismissed by the trial Court.
7. According to the First Appellate Court though Ex.P- 1 is an unregistered instrument, but it is not a partition deed. It is just a memorandum of partition, which does not require registration. From this document, all that can be made out is severance of status and possession of the parties in respect of joint family properties. The recitals of Ex.P-1 show that there was already a partition amongst the brothers in the presence of panchas and Ex.P-1 only evidences the past partition. Observing thus, the First Appellate Court reversed the judgment of the trial Court to decree the suit of the plaintiffs.
8. Questioning the correctness of the judgment of the First Appellate Court, the learned counsel for the appellant firstly, made reference to certain factual aspects. On 01.03.1958, the suit property was purchased by Mahadevappa, the father of first defendant. This Mahadevappa had separated from the joint family even during the life-time of his father. Therefore, the suit property belonged to Mahadevappa absolutely and : 10 : exclusively. The propositus, Mallappa i.e., the father of Mahadevappa died in the year 1963. Till then, Mallappa was the Manager of joint family. According to plaintiffs, Ex.P-1 is the document which evidences oral partition having taken place on 30.01.1964. If really oral partition had taken place on that day and that the suit property fell to the share of plaintiffs, there was no need for Mahadevappa to file a suit O.S. No.71/1971 against his brothers i.e., plaintiffs herein. Though that suit was for injunction, the finding given in that Court binds the plaintiffs. In fact, their appeal, R.A. No.18/1973 was also dismissed confirming the judgment of the trial Court. Defendant No.2 i.e., the appellant purchased the suit property from first defendant after verifying all these aspects. Therefore, he is a bona fide purchaser.
9. His further limb of argument was that even if it is assumed that there took a partition on 30.01.1964, but, Ex.P-1 which has been produced in proof of it is unregistered instrument. The recitals found in this Ex.P-1 make it very clear that on 30.01.1964 itself, the members of the family partitioned the property and Ex.P-1 does not evidence any oral partition having taken place prior to 30.01.1964. For : 11 : this reason, Ex.P-1, as has been rightly held by the trial Court, cannot be considered. The trial Court has discussed the evidence and applied the law properly. The First Appellate Court has taken a contrary view, which is opposed to law, and therefore, the judgment of the First Appellate Court is not sustainable.
10. On the other hand, the learned counsel for the respondents - plaintiffs questioned the locus standi of the appellant - 2nd defendant to assail the partition. The learned counsel argued that defendant No.2 is a purchaser from the first defendant. When the first defendant did not contest the suit, the second defendant cannot urge this issue. Then he argued that defendant No.2 was cultivating the land of the defendant No.1, and therefore, he knew about the previous transactions. Therefore, he is not a bona fide purchaser. The First Appellate Court has given clear finding to this effect.
11. The learned counsel further argued that Ex.P-1 is just a memorandum of partition, it is not a partition deed. The memorandum of partition does not require registration. Even if it is held that it requires registration, it can be looked into for collateral purpose of ascertaining the severance of : 12 : status. If Ex.P-1 is considered for this purpose, it clearly discloses that there was severance of status of the joint family, and therefore, each member of the family was cultivating the land separately. With these points, he argued for dismissal of the appeal.
12. Before dealing with the substantial question of law, one point of argument raised by the plaintiffs counsel needs to be answered. He argued about locus standi of 2nd defendant to question the partition. The argument of the learned counsel is difficult to be accepted. Defendant No.2 is a purchaser of suit property. He possesses as much interest as his vendor had before the sale. Any judgment rendered in a suit where the sale is in question affects his interest. The Hon'ble Supreme Court in the case of Ram Awadh (dead) by L.Rs. and others v. Achhaibar Dubey and another, [AIR 2000 Supreme Court 860] had an occasion to examine the right of subsequent purchaser to question the readiness and willingness of the plaintiff in a suit for specific performance. The clear observation of the Hon'ble Supreme Court is as below :
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"The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the Court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in Jugraj Singh's case (1995 AIR SCW 901 : AIR 1995 SC 945 : AIR 1995 SC 945) is erroneous."
13. Therefore, in a case like this, if at all any party is affected, it is the second defendant being the purchaser, he has all the right to question the validity of partition.
14. The entire case rests on interpretation of the instrument, Ex.P-1 purporting to be a partition deed. Whether it is a partition deed or only a memorandum of partition can be decided by looking into recitals found therein. Determining factor is its real nature and its legal implications and consequences. There is subtle distinction between a partition deed and a memorandum of partition. : 14 : The memorandum of partition just evidences partition having taken place in the past. By that instrument itself, the division of properties does not take place, rather it is only a record of earlier partition. But the partition deed gives into effect the immediate division of joint family properties. Execution of partition deed and division of properties are contemporaneous. It is a document by virtue of which the joint family status comes to an end and the members who hold the properties as tenants in common till then will become entitled to hold absolutely only those properties allotted to them, thereby, there is extinguishment of interest in the property not allotted to them. To put in simple words, the partition deed is nothing but a document, which gives into effect the division of entire joint family property among the members of joint family from the moment it is executed. Therefore, the memorandum of partition which is evidence of oral partition does not require registration, but the partition deed requires registration according to Section 17 of the Indian Registration Act.
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15. Now, if Ex.P-1 is read in its entirety, it is possible to say that it is nothing but a partition deed. Some of its recitals are as below :
" £ÁªÉ®ègÀÆ SÁ¸À CtÚ vÀªÀÄäA¢gÁUÀ¨ÉÃPÀÄ. £ÀªÀÄä £ÀªÉÆä¼ÀUÉ PÀÆr £ÀrAiÀÄzÀÝjAzÀ PɼÀUÉ ¸ÁQë ºÁQzÀ ¥ÀAZÀgÀ ¸ÀªÀÄPÀëªÀÄ £ÁªÀÅ C¥Áìw£À°è ¨ÉÃgÉ ¨ÉÃgÉ DV £ÀªÀÄä £ÀªÀÄä »¸Éì ªÀiÁrPÉÆAqÀzÀÝgÀ «ªÀgÀ."
(¥ÀÄl 1) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx "F ¥ÀæPÁgÀ EªÀwÛ£À ¢ªÀ¸À C¥Áìvï ªÁlt ªÀiÁrPÉÆAqÀ ¥ÀæPÁgÀ CªÀgÀªÀgÀ »¸ÉìPÉÌ §AzÀ »¸ÁìzÀ°è ªÀÄ£É ªÀ »vÀÛ® d«ÄãÀzÀ°ègÀvÀPÀÌ ¤¢ü, ¤PÉëÃ¥À, d®vÀgÀÄ-¥ÁµÁtUÀ½UÉ DAiÀiÁ »¸ÉìÃzÁgÀgÉà ªÀiÁ°PÀgÀÄ EgÀÄvÁÛgÉ. EªÀwÛ¤AzÀ ¸ÀzÀgÀ ªÁlt ¥ÀæPÁgÀ ªÀA±À ¥ÀgÀA¥ÀgÀ ¤gÀAvÀgÀ ªÀ»ªÁlÄ G¥À¨sÉÆÃUÀ ªÀiÁrPÉƼÀî¨ÉÃPÀÄ."
(¥ÀÄl 4)
16. This document also contains description of properties allotted to each member of the family. The extent of land and the location of that property with reference to direction have been mentioned. The interpretation that can be given to Ex.P-1 is that it is nothing but a partition deed. Nowhere it is found that the members of the family had partitioned some time before 30.01.1964. Therefore, Ex.P-1 cannot be called a memorandum of partition. Since this is a partition deed, it requires registration. The trial Court has dealt with this aspect of the matter in detail to come to the conclusion that Ex.P-1 is a partition deed and not a : 16 : memorandum of partition. The First Appellate Court has not considered the real effect of Ex.P-1 to opine that it is just a memorandum of partition. This finding cannot be accepted at all.
17. The First Appellate Court has further observed that even if Ex.P-1 can be considered as partition deed requiring registration, still it can be admitted in evidence to ascertain the severance of status and possession of parties. According to First Appellate Court, making use of the document for this purpose amounts to collateral purpose.
18. What is collateral purpose depends on the nature of transaction. Section 49 of the Indian Registration Act reads as below :
"49. Effect of non-registration of documents required to be registered. - No document required by Sec.17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)] to be registered shall -
(a) affect any immoveable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered :: 17 :
[Provided that an unregistered document affecting immoveable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (1 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.] "
19. So going by the proviso, registration is not necessary if the document is to be used for evidencing a collateral transaction not required to be effected by registered instrument. A collateral purpose is a purpose which must be unconnected and unrelated to main purpose of the document. It must be independent of or divisible from the main transaction. It can also be said that it should be a purpose other than creating, declaring, assigning, limiting or extinguishing a right to immovable property.
20. If the contents of the documents are looked into, all that can be gathered is, division of properties from the date of execution of Ex.P-1. Each member of the family having been allotted a definite share, brings the whole document, Ex.P-1 within the parameters of affecting the immovable property to be divided as envisaged under Section : 18 : 49(a) and (c) of the Registration Act. Therefore, this part of the reasoning cannot be accepted. However, if the limited purpose is to see the nature of possession held by a person, it amounts to a collateral purpose, but it doesn't serve any purpose in this case. The very foundation of the plaintiffs to seek declaration of their title and possession of suit property is based on Ex.P-1. They are entitled to the reliefs only if partition of the properties had taken place according to law. So when Ex.P-1 is an unregistered partition deed, they cannot claim that suit property was allotted to them in the said partition so as to be entitled to declaration of title and its possession. Here what is involved is the title of the plaintiffs and not nature of possession. In fact, they are not in possession. They are not entitled to possession unless their title is established. Therefore, the First Appellate Court has mis-directed itself perversely to hold that Ex.P-1 is admissible in evidence and to decree the suit in favour of plaintiffs.
21. The above discussion leads to conclude that the appeal has to be allowed, and therefore, the following : : 19 :
ORDER
1. R.S.A. No.86/2005 is allowed with cost.
2. The judgment and decree dated 15.09.2004, of the Civil Judge (Sr. Dn.), Haveri, in R.A. No.4/1992 is set aside.
3. The Judgment and Decree dated 20.08.1991 in O.S. No.25/1979 on the file of Munsiff, Savanur, is restored.
Sd/-
JUDGE hnm