Karnataka High Court
Siddappa S/O Late Lingappa vs Sakamma W/O Shivamallappa on 6 June, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
R.F.A.NO.792 OF 2006 (PAR)
BETWEEN
SIDDAPPA
S/O LATE LINGAPPA
AGED ABOUT 54 YEAS
R/AT TAGADUR, D.K HUNDI,
NANJANGUD TALUK
MYSORE DISTRICT-571 001
...APPELLANT
(BY SRI.VICTOR MANOHARAN, ADVOCATE)
AND
1. SAKAMMA
W/O SHIVAMALLAPPA
AGED ABOUT 46 YEARS
R/O BULLIJI, GATTE MOLE,
BIJLIPURA HOBLI, MALAVALLI TALUK
MANDYA DISTRICT-571 401
2. BHAGYA
AGED ABOUT 42 YEAS
W/O SIDDALINGAPPA
R/AT BEHIND RAMALINGESWARA HIGH SCHOOL
GANESHNAGAR, N.R. MOHALLA
MYSORE-571 001
3. THAYAMMA
AGED ABOUT 48 YEARS
W/O MANJUNATH
NEW HOUSING BOARD,
NAMIHALLI CROSS, CHANNARAYAPATNA
2
HASSAN DISTRICT-573 201
4. SHIVAMMA, MAJOR
W/O LATE LINGAPPA
R/AT TAGADUR, NANJANGUD TALUK
MYSORE DISTRICT-571 001
5. NAGAPPA
AGED ABOUT 52 YEARS
S/O LATE LINGAPPA
6. CHINNASWAMY
AGED ABOUT 50 YEARS
S/O LATE LINGAPPA
7. BASAVARAJ
AGED ABOUT 51 YEARS
S/O LATE LINGAPPA
8. MALLESAIAH
AGED ABOUT 41 YEARS
S/O LATE LINGAPPA
RESPONDENTS 5 TO 8 ARE
R/AT TAGADUR, D.K HUNDI,
NANJANGUD TALUK
MYSORE DISTRICT-571 001
...RESPONDENTS
(BY SRI ABUBACKER SHAFI, ADVOCATE FOR R1 TO R4
R5 TO R8 SERVED)
*****
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 22.12.2005 PASSED
IN O.S.NO.138/2000 ON THE FILE OF THE CIVIL JUDGE (SR. DN)
AND JMFC, NANJANGUD, DECREEING THE SUIT FOR
DELCARATION AND SEPARATE POSSESSION AND ETC.
THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
This appeal by defendant No.1 in O.S.No.138/2000 is directed against the impugned judgment and decree dated 22.12.2005 passed by Civil Judge(Sr.Dn.) and JMFC, Nanjangud (for short "the trial Court"), whereby the said suit for partition and separate possession filed by respondent Nos.1 to 4-plaintiffs against the appellant-defendant No.1 and respondent Nos.5 to 8-defendant Nos.2 to 5 was decreed by the trial Court.
2. Heard learned counsel for the appellant, learned counsel for the respondents and perused the material on record including the impugned judgment and decree.
3. A perusal of the material on record will indicate that respondent Nos.1 to 4-plaintiffs filed the aforesaid suit for partition and separate possession of their 4/10th share in the suit schedule properties and for other reliefs. In the said suit, the appellant herein was arrayed as defendant No.1 and he contested the suit. So also, respondent Nos.6 to 8 who were 4 arrayed as defendant Nos.3 to 5 also joined the appellant in contesting the suit.
4. Pursuant to the aforesaid pleadings, the trial Court framed the following issues:
1. Whether the plaintiffs prove that the suit schedule properties are the self acquired properties of late Lingappa?
2. Whether the 1st defendant proves that suit item Nos.1, 2, 3 and 8 are the self acquired properties of late Lingappa and all other suit properties are the ancestral properties?
3. Whether the plaintiffs proves that the plaintiffs and the defendants are in joint possession of the suit properties?
4. Whether the 1st defendant proves that the plaintiffs cannot seek partition of suit item No.8 as contended in para 13 of the written statement?
5. Whether the plaintiffs are entitled for their shares in the suit schedule properties?
6. Whether the plaintiffs are entitled for a decree as prayed for?
7. To what Order or decree?5
Additional Issues framed on 7.1.2004:-
1. Whether the 1st defendant proves that on 13.11.1998 1st defendant and his brothers and their mother the 4th plaintiff got divided the joint family properties and the 4th plaintiff has got her share?
2. Whether the 1st defendant proves that he has performed the marriage of plaintiffs 1 and 2 by borrowing loan of Rs.75,000/- and hence, the plaintiffs cannot claim share in the suit schedule properties as contended in para 12(b) of the written statement?
5. On behalf of the plaintiffs, PWs.1 to 3 were examined and Exs.P-1 to 8 documents were marked . So also, the defendants examined themselves as DWs.1 to 3 and Exs.D-1 to 3 documents were marked.
6. After hearing the parties, the trial Court proceeded to answer the aforesaid issue Nos.1 and 2 in the negative, thereby rejecting the claim of the plaintiff that the suit schedule properties are the self-acquired properties of late Lingappa and that defendant No.1-appellant herein had failed to prove that the suit item Nos.1, 2, 3, and 8 are the self- 6 acquired properties of late Lingappa and that all the suit schedule properties are ancestral properties. While dealing with Issue No.3, the trial Court came to the conclusion that the plaintiffs and defendants are in joint possession and enjoyment of the suit schedule properties. So also, the contention of the appellant-defendant No.1 that the plaintiffs cannot seek partition of suit item No.8 of the suit schedule properties as contended in para 13 of the written statement was rejected by the trial Court, which answered issue Nos.5 and 6 in favour of the plaintiff.
7. A perusal of the impugned judgment and decree will also indicate that the additional issues in relation to proof of the alleged partition dated 13.11.1988 set up by the appellant-defendant No.1 as well as his specific contention that he performed marriages of the plaintiff Nos.1 and 2 by borrowing loan of Rs.75,000/- and consequently, cannot claim share in the suit schedule properties was negatived by the trial Court. Under these circumstances, the trial Court proceeded to decree the suit in favour of the plaintiffs declaring that they 7 are entitled to 4/10th share in the suit schedule properties and that they are entitled to partition and separate possession of the same.
8. Aggrieved by the impugned judgment and decree passed by the trial Court, defendant No.1 is before this Court by way of the present appeal.
9. In addition to reiterating the various contentions urged in the Memorandum of Appeal and referring to various documents produced by the appellant, learned counsel for the appellant submits that the impugned judgment and decree passed by the trial Court in coming to the conclusion that there was no partition between the parties in terms of Ex.D-1 is wholly incorrect and contrary to the material on record. It is also contended that the material on record clearly establishes the various contentions and defence put forth by the defendants are incorrect and deserves to be set aside. It is further contended that the impugned judgment and decree passed by the trial Court proceeds on assumptions and 8 presumptions and is based on surmises and conjectures and the same deserves to be set aside by this Court.
10. Per contra, learned counsel for the respondents would support the impugned judgment and decree passed by the trial Court and also submits that there no merit in the appeal and that the same is liable to be dismissed.
11. The following points arise for my consideration in this appeal:
(i) Whether the appellant-defendant No.1 has established that there was partition between the parties on 13.11.1998 in terms of Ex.D-1 as contended by the appellant?
(ii) Whether the impugned judgment and decree passed by the trial Court warrants interference in the present appeal?
Re- Point No.(i)
12. The material on record discloses that it is the specific contention of the appellant-defendant No.1 that the suit schedule properties were partitioned and divided between 9 him, his brothers and their mother (Plaintiff No.4 - Shivamma). In order to establish the said contention, defendant No1. has examined himself as DW-1 and two witnesses were examined as DWs-2 and 3.
13. After considering the pleadings and evidence of the parties, the trial Court has taken into account the undisputed fact that Ex.D-1 was unregistered and insufficiently stamped document, which was inadmissible in evidence in order to prove the factum of partition as alleged by the appellant-defendant No.1. The trial Court has also taken into account subsequent conduct of the parties after 13.11.1988 and has recorded categorical finding of the fact that they have not established the factum of partition as contended by him, the trial Court has also considered the oral and documentary evidence in order to come to the conclusion that the appellant had failed to adduce legal and acceptable evidence to establish that he had raised loan of Rs.75,000/- for the purpose of marriage of the plaintiff Nos.1 to 3. It is relevant to state that plaintiff Nos.1 to 3, who are the daughters and 10 sisters of defendant No.1 are not parties to the aforesaid alleged partition and even this circumstance is sufficient to show that the alleged palupatti was not binding upon plaintiff Nos.1 to 3. The trial Court recorded the following finding:
"11. Issue No.4:- It is stated by the 1st defendant in the written statement that the plaintiffs are not entitled for partition in the item No.8 is the house property. Merely because of marriage of plaintiffs 1 to 3 by raising loans to the extent of Rs.75,000/- got performed marriage of plaintiff Nos.1 to 3, even though they are residing the house of their husband, the plaintiff Nos.1 go 3 are entitled for the partition and separate possession of the suit schedule property, but the defendants 1 to 5 have not made any efforts for their marriage, the plaintiff No.4 is their own mother has raised loan of Rs.75,000/- from others and got married the daughters. Therefore, at this stage the evidence of PWs.1 to 3 reveal that the plaintiffs are entitled for the partition and separate possession of the suit schedule item No.8 also, but the defendants contention is that they cannot seek partition of the item No.8 also. On the other hand, the learned counsel for the plaintiff has argued before the Court that for the partition of the properties equally and not only in item Nos.1 to 7, but also in item No.8, because of neglect on the part of the defendant Nos.1 11 to 5. In that regard, the learned counsel for the defendants have relied upon the several decisions contending that there was already partition of the family properties as per the Ex.D.1 which is unregistered Palu patti, even though it is reliable documents and he has mainly relied upon the ruling reported in ILR 2002 Kar. Page 3613 which reads as follows:-
INDIAN REGISTRATION ACT, 1908 (CENTRAL ACT NO.16 OF 1908) - SECTION 49 AND KARNATAKA STAMP ACT, 1957 (KARNATAKA ACT NO.22 OF 1957) -
SECTION 35 - There is no total prohibition for receiving unregistered documents in evidence, Un-Registered Partition Deed could be received in evidence to prove any collateral transaction.
He has also relied upon AIR 1995, SC page 1728 which reads as follows:-
(B) Evidence Act (1 of 1872), S. 35 - Factum of partition between two brothers - Proof -
Entries in Records of Rights maintained inofficial course of business - Is relevant piece of evidence. Hindu Law - Partition - Proof.
(c). Hindu Law - Partition - Not necessary that partition should be effected by registered 12 partition deed. Under the Hindu Law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof.
He has also relied upon the AIR 1998 Kar. Page 225 which reads as follows:-
(A) Evidence Act (1 of 1892), S. 5 - Evidence -
Admissibility of - Suit for partition - Partition deed not registered - Document held admissible by trial Court for collateral purposes through not as evidence of partition - Oral evidence relied upon for evidence of partition by trial Court - Finding by trial Court that there was partition cannot be held to be not sustainable on ground that sole evidence for partition was deed which was inadmissible in evidence, (i) Registration Act, (16 of 1908), S.49; (ii) Hindu Law - Partition).
He has also further relied upon the decision reported in AIR 1991 Kerala page 266 which reads as follows:-
(A) Registration Act (1908), S.17 -
Registration of documents - Agreement by way of family settlement settling all disputes 13 between parties - Does not require registration.
He has also relied upon AIR 1993 M.P page 65 which reads as follows:
Hindu Law - Partition - Proof of -
Memorandum of partition - Not registered - Inadmissible in evidence - Can be used for collateral purpose of proving intention of partition - Oral evidence to prove partition can also be let in.
By perusal of all the rulings, it is the contention of the defendants that there was already partition of the suit schedule property as per Ex.D-1 and also relinquishment deed as per Ex.D-2 and there is also Wedding Card as per Ex.D.3. By looking to all the ruling and also the written argument submitted by the learned Counsel for the defendant Nos.1 to 3 Sri. B.S. and in that regard his contention is that there was partition already, but there is no mutation order got effected in the names of defendant Nos.1 to 5 as per Ex.D.1 which is unregistered palu patti, but to prove such contention there is documents in favour of the defendants. But the PW.1 has produced Ex.P.1 to P.7 which are the RTC Extracts and Ex.P.8 is the Patta Book which clearly reveals that all the suit schedule properties are standing on the name of late 14 Lingappa and also his grand father and grand mother. Therefore at this stage, I am of the view that the contentions raised by the learned counsel for the defendants before the Court that the plaintiff cannot seek partition in the item No.8 of the suit schedule property does not arise, because in the item No.8, the plaintiffs are entitled to get the shares equally with the lands item Nos.1 to 7. In that regard, the learned Counsel for the plaintiff has relied upon a ruling reported in ILR 2004 Kar. Page 1930 which reads as follows:-
(c) HINDU LAW WOMEN'S RIGHTS ACT, 1933 (MYSORE ACT NO.10 OF 1933) -
SECTION 8 - Partition of joint family property among brothers, their mother, their unmarried sisters and the widows and unmarried daughters of their pre-deceased by undivided brothers, who have left no male issue -
entitlement of share. The right of a female heir under Section 8 of the Act 10 of 1933 Act to inherit along with the co-parceners is a distinct right from the right of succession under Section 6 of Hindu Succession Act, which permits succession only in the share of the deceased along with other Class 1 heirs.
Another ruling reported in AIR 1999 Kar. Page 46 which reads as follows:-
15
Hindu Succession Act (30 of 1956). Ss. 14(1).6 - Joint family property - Single co- parcener - Survivorship - Daughter becomes entitled to share on date of death of her father when she was unmarried - Her subsequent marriage cannot take away vested right - Notional partition should be deemed to have taken place in such cases as contemplated under S.6.
He has also another ruling reported in AIR 1992 Bombay page 72, which reads as follows:-
(E) Hindu Succession Act (30 of 1956), S.6 -
Joint family - Death of coparcener leaving behind sons, daughters etc., There is no automatic partition among heirs.
All the rulings relied upon by the learned counsel for the plaintiffs are applicable to the facts of this case. In view of the application of the said rulings of the plaintiffs, it cannot be denied that the plaintiffs are only entitled in the item Nos.1 to 7 of the suit schedule properties, but they are not entitled in the item No.8 of the suit schedule property as contended in the plaint, which is the residential house and hence, I answer Issue No.4 in the negative."
14. Upon re-appreciation and re-evaluation of the entire material on record, I am of the considered opinion that 16 the judgment and decree passed by the trial Court rejecting the claim of prior/earlier partition set up by the appellant- defendant No.1 does not suffer from any illegality or infirmity warranting interference by this Court in the present appeal. Under these circumstances, I am of the considered opinion that the trial Court was fully justified in coming to the conclusion that the appellant-defendant No.1 failed to establish that the suit schedule properties were allegedly partitioned between the parties as contended in the written statement.
Point No.1 is accordingly answered against the appellant.
Re- Point No.(ii)
15. Having come to the conclusion that the appellant- defendant No.1 had failed to establish prior/earlier partition as contended by him, the next question that arises for consideration is whether the plaintiffs were entitled to share in the suit schedule properties as contended by them. In this context, it is relevant to state that after negativing the 17 contention of the appellant-defendant No.1 that there was earlier/prior partition of the suit schedule properties, the trial Court correctly appreciated entire material on record has come to the conclusion that the plaintiffs are entitled to 4/10th share in the suit schedule properties. Even this finding based on correct and proper appreciation of the material on record, does not suffer from any illegalities or infirmities warranting interference by this Court in the present appeal. Accordingly, I am of the considered opinion that the trial Court was fully justified in decreeing the suit in favour of respondent Nos.1 to 4-plaintiffs and the impugned judgment an decree does not warrant interference by this Court in the present appeal.
Accordingly, point No.(ii) is also answered against the appellant.
In the result, I do not find any merit in the appeal and the same is hereby dismissed.
SD/-
JUDGE BMC CT:AN