Karnataka High Court
Sadashiv S/O. Kadappa Malabai vs Smt Rajeshwari @ Rajshri ... on 19 February, 2025
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NC: 2025:KHC-D:3443-DB
RFA No. 100391 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF FEBRUARY 2025
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO. 100391 OF 2020 (PAR/POS)
BETWEEN:
SADASHIV S/O. KADAPPA MALABAI
SINCE DEAD. BY HIS LRS
1. SMT. SUJATA W/O. MURAGESH METRI
AGE : 38 YEARS, OCC : HOUSEHOLD WORK,
R/O : SUNAGAR GALLI, ATHANI,
DIST : BELAGAVI-591304.
2. SOMASHEKAR S/O. SADASHIV MALABADI
AGE : 34 YEARS, OCC : BUSINESS,
R/O : BANAHATTI, TQ : JAMKHANDI,
DIST : BAGALKOT-587311.
3. SHRISHAIL S/O. SADASHIV MALABADI
AGE : 32 YEARS, OCC : BUSINESS,
MOHANKUMAR
B SHELAR R/O : BANAHATTI, TQ : JAMKHANDI,
DIST : BAGALKOT-587311.
Digitally signed by
MOHANKUMAR B
SHELAR 4. JAYASHRI W/O. MALAPPA MALABADI
Date: 2025.03.01
10:54:09 +0530 AGE : 64 YEARS, OCC : HOUSE WIFE,
R/O : BANAHATTI, TQ : JAMKHANDI,
DIST : BAGALKOT-587311.
5. MADHURANI W/O. RAJU METRI
AGE : 34 YEARS, OCC : HOUSEHOLD WORK,
R/O : SUNAGAR GALLI, ATHANI
DIST : BELAGAVI-591304.
6. KAVITA W/O. MAHARUDRAPPA
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NC: 2025:KHC-D:3443-DB
RFA No. 100391 of 2020
CHANNAPPANAVAR, AGE : 34 YEARS,
OCC : HOUSE WIFE, R/O : HULYAL,
TQ : JAMKHANDI, DIST : BAGALKOT-587311.
7. MAHESH S/O. MALLAPPA MALABADI
AGE : 29 YEARS, OCC : WEAVER AND
AGRICULTURE, R/O : BANAHATTI,
TQ : JAMKHANDI, DIST : BAGALKOT-587311.
8. SANJU S/O.MALLAPPA MALABADI
AGE : 29 YEARS, OCC : BUSINESS,
R/O : BANAHATTI, TQ : JAMKHANDI,
DIST : BAGALKOT-587311.
...APPELLANTS
(BY SRI. VISHWANATH HEGDE, ADV)
AND:
1. SMT. RAJESHWARI @ RAJSHRI
W/O. JAYAVANT BHAVIKATTI
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O: MAHALINGAPUR, TQ: MUDHOL,
DIST: BAGALKOT-587312.
2. SMT. SHOBHA W/O. SANGAPPA BANKAR
AGE : 50 YEARS, OCC : HOUSE WIFE
R/O : GANESH NAGAR HUNNUR,
TQ : JAMKHANDI, DIST : BAGALKOT-587311.
NEELAWWA W/O.CHANNAPPA DHADOOTHI
SINCE DECEASED BY HER LRS
3. SMT. PRABHAVATI W/O. BABURAO KERORE
AGE : 53 YEARS, OCC : HOUSE HOLD WORK,
R/O : HOSPETH GALLI, NEAR JAIN BASTI
CHIKODI, TQ: CHIKODI, DIST: BELAGAVI-591201.
4. SMT. LALITA W/O. SHANKAR MALABADI
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NC: 2025:KHC-D:3443-DB
RFA No. 100391 of 2020
AGE : 52 YEARS, OCC : HOUSE HOLD WORK,
R/O : FARM HOUSE, BANAHATTI,
TQ : JAMKHANDI, DIST : BAGALKOT-587311.
5. MAHADEV S/O. CHANNAPPA DHADUTI
AGE : MAJOR, OCC : AGRICULTURE,
R/O : CHIMMAD, TQ : MUDHOL,
DIST : BAGALKOT-587312.
6. PRADEEP S/O. CHANNAPPA DHADUTI
AGE : 49 YEARS, OCC : AGRICULTURE,
R/O : CHIMMAD, TQ : MUDHOL,
DIST : BAGALKOT-587312.
7. SUBHAS S/O. CHANNAPPA DHADUTI
AGE : 48 YEARS, OCC : AGRICULTURE,
R/O : CHIMMAD, TQ : MUDHOL,
DIST : BAGALKOT-587312.
8. SHANKAREPPA S/O. GANGAPPA MALABADI
AGE : 55 YEARS, OCC : WEAVER AND
AGRICULTURE, R/O : BANAHATTI,
TQ : JAMKHANDI, DIST : BAGALKOT-587311.
9. MAHANANDA W/O. BASAPPA METRI
AGE : 41 YEARS, OCC : HOUSEWIFE,
R/O : SUNAGAR GALLI, TQ : ATAHNI,
DIST : BELAGAVI-591304
SMT. BHARATHI W/O. SADASHIV BARIGIDAD
SINCE DEAD. BY HER LRS.
10. SADASHIV S/O.BASAPPA
KATTEWADI @ BARIGIDAD
AGE : 54 YEARS, OCC : HOTEL BUSINESS,
R/O : HUNNUR, TQ : JAMKHANDI,
DIST : BAGALKOT-587311.
11. MALLAPPA S/O. SADASHIV
KATTEWADI @ BARIGIDAD
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NC: 2025:KHC-D:3443-DB
RFA No. 100391 of 2020
AGE : 32 YEARS, OCC : AGRICULTURE,
R/O : HUNNUR, TQ : JAMKHANDI,
DIST : BAGALKOT-587311.
12. SMT. SHRUTI W/O. IRAPPA CHIKKODI
AGE : 27 YEARS, OCC : HOUSEHOLD WORK,
ASANGI VILLAGE, TQ : JAMKHANDI,
DIST : BAGALKOT-587311.
13. SHANKAREWWA @ SHANKAREMMA
D/O. SADASHIV KATTEWADI @ BARIGIDAD
AGE : 24 YEARS, OCC : HOUSEHOLD WORK,
R/O : HUNNUR, TQ : JAMKHANDI,
DIST : BAGALKOT-587311.
...RESPONDENTS
(BY SRI. VITTHAL S TELI, ADV FOR R1 & R2,
R3 TO R13 ARE SERVED)
THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 28.02.2020 PASSED IN
O.S.NO.109/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, BANAHATTI, DECREEING THE
SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
CORAM: AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
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NC: 2025:KHC-D:3443-DB
RFA No. 100391 of 2020
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellants challenging the judgment and preliminary decree dated 28.02.2020 passed in O.S. No.109/2016 (Old No.50/2014) by the learned Senior Civil Judge and JMFC, Banahatti.
2. For convenience, the parties are referred to, based on their rankings before the trial Court. Appellant Nos.1 to 3 are the legal representatives of the deceased defendant No.1, appellant Nos.4 to 8 were defendant Nos.2 to 6, respondent Nos.1 and 2 were the plaintiffs, and respondent Nos.3 to 8 are the legal heirs of deceased defendant No.7, respondent No.9 was defendant No.8, respondent Nos.10 to 13 are the legal heirs of deceased defendant No.10.
3. Brief facts, leading rise to the filing of this appeal are as follows:
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NC: 2025:KHC-D:3443-DB RFA No. 100391 of 2020 The plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that one Mallappa was the propositus. He had 4 children namely, Kadappa, Basappa, Agraneppa, and Gangappa. Kadappa had a wife by name Gurawwa. Kadappa had two sons by name Mallappa and Sadashiv. Sadashiv is defendant No.1, and defendant Nos.2 to 6 are the legal heirs of deceased Mallappa, son of Kadappa. Neelawwa i.e. Defendant No.7, is the wife of Basappa. The plaintiffs are the daughters Agraneppa, and defendant Nos.8 to 10 are the children of Gangappa. After the demise of the original propositus-Mallappa, there was no partition effected between his sons. Kadappa, being the eldest son, managed all the properties and assets of the family. Schedule 'A' and 'B' are the ancestral/joint family properties of the plaintiffs and the defendants. The plaintiffs are the granddaughters of Mallappa and they are married. Both the plaintiffs and the defendants are enjoying undivided, and unspecified shares in the suit schedule 'A' and 'B' properties. The plaintiffs' father i.e. -7- NC: 2025:KHC-D:3443-DB RFA No. 100391 of 2020 Agraneppa passed away in 2000, and their mother passed away in 2005. Agraneppa was entitled to a 1/4th share in the suit schedule propeties. The plaintiffs are entitled to a 1/4th share in a suit 'A' and 'B' schedule properties. The plaintiffs requested the defendants to effect a partition but the defendants refused to effect a partition. It is contended that, no partition is effected by metes and bounds. It is contended that, the defendants have obtained the signatures of the plaintiffs on blank papers with an assurance that partition would be effected in due course. The plaintiffs are not fully literate and they have their family responsibility and are not in a position to personally visit the concerned Government Offices. They trusted the defendants and signed the blank papers in good faith. The defendants misused the signed blank papers, and created documents to show that they have acquired the said suit 'A' & 'B' schedule properties and have entered their names in Records of Rights. The said documents are sham and bogus. Hence, prays to decree the suit.-8-
NC: 2025:KHC-D:3443-DB RFA No. 100391 of 2020 4. Summons were issued. Defendant Nos.1 to 6 appeared through their counsel, and filed their written statement. Defendant Nos.8 to 10, despite service of summons, remained unrepresented, and were placed exparte.
5. Defendant Nos.1, 5 and 6 filed a written statement denying the averments made in the plaint and contended that the plaintiffs are not in possession of the suit schedule properties. It is contended that the plaintiffs gave up their right, title and interest over the suit schedule properties in 2006 by executing a Consent Deed regarding their share in a suit 'A' and 'B' schedule properties by receiving Rs.2,50,000/-, and they have executed the deed on their own. Hence, the plaintiffs are estopped to claim a share in suit schedule 'A' and 'B' schedule properties. Hence, prays to dismiss the suit.
6. The trial Court, based on the pleadings of the parties, framed the following issues:-9-
NC: 2025:KHC-D:3443-DB RFA No. 100391 of 2020 ISSUES
1. Whether the plaintiffs proves that suit schedule properties are the joint family, ancestral properties?
2. Whether the defendant No. 1, 5 & 6 prove the earlier partition in the family ?
3. Whether the defendant No.1, 5 & 6 prove that, in the year 2006 plaintiffs are given up their share by executing consent deed by receiving Rs.2,50,000/-?
4. Whether plaintiffs, are entitled for the reliefs as claimed ?
5. What order or decree ?
7. The plaintiffs to substantiate their case, plaintiff No.1 examined herself as PW.1, examined 3 witnesses as PWs.2 to PW.4, and marked 8 documents as Exs.P-1 to P-
8. On the other hand, defendant No.5 examined himself as DW.1 and examined 3 witnesses as DW.2 to DW.4, and marked 5 documents ad Exs.D.1 to D-5.
8. The trial Court, after recording the evidence, hearing on both sides, and on the assessment of the oral and documentary evidence, answered issue Nos.1 and 4 in the affirmative and issue Nos.2 and 3 in the negative, and issue No.5 as per the final order. The suit of the plaintiffs was decreed vide judgment dated 28.02.2020. It is
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NC: 2025:KHC-D:3443-DB RFA No. 100391 of 2020 declared that, the plaintiffs are entitled to a 1/4th share in respect of suit 'A' and 'B' schedule properties.
9. The legal representatives of the deceased defendant No.1, and defendant Nos.2 to 6, aggrieved by the judgment and preliminary decree passed in O.S. No.109/2016, have filed this Regular First Appeal.
10. Heard the learned counsel for defendant Nos.1 to 6 and the learned counsel for the plaintiffs.
11. The learned counsel for defendant Nos.1 to 6 submits that, as the plaintiffs, by accepting Rs.2,50,000/- each have relinquished their right in favour of the defendants by executing a Consent Deed, and the parties have acted upon the Consent Deed, the plaintiffs are estopped to claim a share in the suit 'A' and 'B schedule properties. The trial Court has misread the contents of Exs.D1 and D3. He submits that, the said Exs.D1 and D3 bears the signatures of the plaintiffs. This aspect was not properly considered by the trial Court, and passed the
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NC: 2025:KHC-D:3443-DB RFA No. 100391 of 2020 impugned judgment. He submits that, the impugned judgment passed by the trial Court is arbitrary and erroneous. Hence, on these grounds, he prays to allow the appeal.
12. Per contra, the learned counsel for the plaintiffs submits that, the plaintiffs are members of the Hindu undivided joint family, and the suit schedule properties are the ancestral joint family properties of the plaintiffs and the defendants and no partition is effected. He submits that the plaintiffs have not executed any Consent Deed as per Exs.D1 and D3. He further submits that the said documents are marked subject to objections and are inadmissible in evidence. He further submits that Section 17 of the Indian Registration Act provides that, 'a immoveble property worth more than Rs.100/- is to be transferred by way of registration.' He submits that the defendants by Exs.D1 and D3 have not acquired any right or title over the suit 'A' and 'B' schedule properties. He further submits that, the trial Court was justified in
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NC: 2025:KHC-D:3443-DB RFA No. 100391 of 2020 passing the impugned judgment. Hence, on these grounds, he prays to dismiss the appeal.
13. Perused the records, and considered the submissions of the learned counsel for the parties.
14. The points, that arise for our consideration are:
(i) Whether the plaintiffs prove that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants?
(ii) Whether the defendants prove that the plaintiffs have relinquished their right in 2006 by executing a Consent Deed by receiving Rs.2,50,000/-?
(iii) Whether the defendant prove that the judgment and decree passed by the trial Court is perverse and arbitrary?
(iv) What order or decree?
15. Point No.(i): The plaintiffs to substantiate their case, plaintiff No.1 was examined as PW.1. She
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NC: 2025:KHC-D:3443-DB RFA No. 100391 of 2020 reiterated the plaint averments in the examination-in- chief, and she deposed that, Mallappa was the original propositus. He had 4 sons namely Kadappa, Basappa, Agraneppa and Gangappa. The plaintiffs and the defendants are the granddaughters, and grandsons of propositus Mallappa. It is stated that, the suit schedule properties are the ancestral joint family properties of the plaintiffs and the defendants. There is no partition effected by metes and bounds in suit schedule 'A' and 'B' schedule properties. The plaintiffs requested the defendants to effect a partition, but the defendants refused to effect a partition. The plaintiffs produced documents, Exs.P-1 and 2 are the property register extracts, regarding CTS Nos.7861 and 7862 which reveals that on 10.01.2006 a wardi was submitted. Based on the wardi, the names of Sadashiv Kadappa Malabadi, Mahesh, Sanju Mallappa Malabadi, Shankarappa, Mahananda and Bharati were entered. Ex.P-3 is the property register extract regarding CTS No.7863 which stands in the name of Sadashiv, Mahesh, Sanju, and Shankarappa. Ex.P-4 is
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NC: 2025:KHC-D:3443-DB RFA No. 100391 of 2020 the property register extract in respect of CTS No.6779 which stands in the name of Kadappa, after his demise, it was transferred to the name of his brothers. Ex.P-5 is the RTC extract of land bearing Sy.No.75/1 which stands in the name of Sadashiv Kadappa Malabadi, Mahesh s/o Mallappa Malabadi, and Sanju son of Mallappa Malabadi as joint Khatedars. Ex.P-6 is the RTC extract of land bearing R.S. No.82/2 standing in the names of Sadashiv, Shankrappa, Mahesh and Sanju Jointly; Ex.P-7 is the RTC extract of land bearing R.S. No.82/3 standing in the names of Subhas, Sadhashiv, Shankrappa, Mahesh and Sanju; Ex.P-8 is the copy of legal notice dated 24.01.2014 issued by the plaintiffs to defendant Nos.1, 5 and 6 calling upon the defendants to effect a partition. During the cross-examination, it was suggested to PW.1 that the defendants have paid Rs.2,50,000/- to the plaintiffs. It is elicited in the cross-examination that, the plaintiffs have not received Rs.2,50,000/- in full, and also denied that plaintiff No.2 received an amount from the father for the house construction. She has deposed that, the defendants
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NC: 2025:KHC-D:3443-DB RFA No. 100391 of 2020 have obtained the signature on a blank paper. The defense of the defendants is that, the plaintiffs have relinquished their right by receiving Rs.2,50,000/-, over the suit schedule properties, and the plaintiffs executed a Consent Deed marked as Exs.D-1 and Ex.D-3 is an unregistered Relinquishment Deed. The plaintiffs also examined 3 witnesses as PWs.2 to 4 who have deposed that the Mallappa was the original propositus and the suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants and they are the members of the Hindu joint family and no partition is effected between them. Nothing has been elicited during the cross-examination from the mouth of these witnesses to disbelieve their evidence.
16. On the other hand, defendant No.5 was examined as DW.1. He has reiterated the written statement averments in the examination-in-chief. Further, to prove that the plaintiffs have relinquished their right over the suit schedule properties in favour of the
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NC: 2025:KHC-D:3443-DB RFA No. 100391 of 2020 defendants, have produced the documents. Ex.D1 is the Consent Deed, and the signature of the parties are marked as Exs.D1(a) to (g). Ex.D-2 is the application submitted to the Tahsildar to effect the mutation, Ex.D3 is the unregistered Relinquishment Deed, Ex.D4 is the reply, Ex.D5 is Form No.21 notice. Though, Exs.D1 and D3 are marked subject to objections, the defendants are claiming right and title over the suit schedule 'A' and 'B' schedule properties by virtue of the said documents. By producing Exs.D1 and D3, the defendants have admitted that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants.
17. In view of the above discussion, we answer point No.1 in the affirmative.
18. Point No.(ii): The defendants have taken a defense that there was a partition in 2006, and in the said partition, the plaintiffs have given up their share over the suit schedule properties by executing a Consent Deed by receiving Rs.2,50,000/- and produced the Consent Deed
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NC: 2025:KHC-D:3443-DB RFA No. 100391 of 2020 marked as Ex.D-1, and D3 is an unregistered Relinquishment Deed. By way of a Consent Deed, no rights can be transferred. Exs.D1 and D3 are inadmissible in evidence, and the said documents are unregistered.
19. Section 17 of the Registration Act reads as follows :
"17. Documents of which registration is compulsory.--
(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
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NC: 2025:KHC-D:3443-DB RFA No. 100391 of 2020 1[(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the 4 [State Government] may, by order published in the 5 [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
4[(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 (48 of 2001) and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.] (2) Nothing in clauses (b) and (c) of sub-section (1) applies to--
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
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(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) 2 [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court 3 [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or
(vii) any grant of immovable property by 4 [Government]; or
(viii) any instrument of partition made by a Revenue-Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871 (26 of 1871), or the Land Improvement Loans Act, 1883 (19 of 1883); or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884 (12 of 1884), or instrument for securing the repayment of a loan made under that Act; or
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NC: 2025:KHC-D:3443-DB RFA No. 100391 of 2020 3[(xa) any order made under the Charitable Endowments Act, 1890 (6 of 1890), vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer.
4 [Explanation.--A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered."
20. Section 49 reads as follows :
"49. Effect of non-registration of documents required to be registered.--No document required by section 17 1 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--
(a) affect any immovable property comprised therein, or confer any power to adopt, or
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NC: 2025:KHC-D:3443-DB RFA No. 100391 of 2020
(b) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
[Provided that an unregistered document affecting immovable 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)2 , 3(***) or as evidence of any collateral transaction not required to be effected by registered instrument.]"
21. As per Section 17 of the Registration Act, if the property to which a document is executed, it requires compulsory registration. Admittedly, the defendants have not produced any records to establish that, the plaintiffs had relinquished their rights in favour of the defendants. The said documents are unregistered documents, and are marked subject to objection. The defendants have not paid the duty and penalty on Exs.D1 and D3. The plaintiffs have contended that, the defendants have taken the signatures of the plaintiffs on a blank paper and misused them. Further, from a perusal of Ex.D3, it does not disclose the landed properties and payment of Rs.2,50,000/- in favour of defendant Nos.1, 5 and 6. Further, the trial Court has recorded a finding that Ex.D1
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NC: 2025:KHC-D:3443-DB RFA No. 100391 of 2020 stamp paper was purchased on 27.12.2006 and it was executed, and Ex.D3, bond paper was obtained on 24.08.2006, but the Relinquishment Deed was executed on 08.07.2007. Though, the defendants have examined the attesting witnesses to Exs.D1 and D3, the plaintiffs have denied, and the trial court has discarded Exs.D1 and D3 on the ground that, the said documents are created. The said documents do not corroborate with any other documents and held that defendant Nos.1, 5 and 6 have failed to establish that, in 2006, the plaintiffs have relinquished their right by executing a Consent Deed by receiving Rs.2,50,000/-, and rightly granted a share to the plaintiffs i.e., 1/4th share in the suit schedule properties.
22. In view of the above discussion, we answer point No.(ii) in the negative.
23. Point No.(iii): The plaintiffs have filed a suit for partition and separate possession. Defendant Nos.1, 5 and 6 have taken a specific defense in the written statement that the plaintiffs have relinquished their right
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NC: 2025:KHC-D:3443-DB RFA No. 100391 of 2020 by receiving Rs.2,50,000/-, and executed a Consent Deed marked as Ex.D1, and an unregistered Relinquishment Deed marked as Ex.D3. At the cost of repetition, the said documents are unregistered, and inadmissible in evidence, and they are marked, as subject to objections. The trial Court was justified in discarding Exs.D1 and D3, and rightly held that defendant Nos.1, 5 and 6 have failed to establish that the plaintiffs have relinquished their rights over the suit 'A' and 'B' schedule properties by receiving Rs.2,50,000/-. The trial court was justified in recording its finding that, the suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants, and they are the members of the Hindu joint family, and no partition is effected and rightly granted a share to the plaintiffs. We do not find any error in the impugned judgment. We concur with the judgment passed by the trial Court.
24. In view of the above discussion, we answer point No.(iii) in the negative.
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25. Point No.(iv): As we have already answered point Nos.(i) to (iii) in favour of the plaintiffs, accordingly, we proceed to pass the following ORDER The Appeal is dismissed. The judgment and preliminary decree dated 28.02.2020 passed in O.S. No.109/2016 (Old No.50/2014) by the learned Senior Civil Judge and JMFC, Banahatti, is hereby confirmed. No order as to the cost.
Sd/-
(ASHOK S. KINAGI) JUDGE Sd/-
(UMESH M ADIGA) JUDGE kmv CT: BSB