Karnataka High Court
Shrishail S/O Siddappa Bhagayat vs Tippawwa W/O Siddappa Bhagyat And Ors on 29 August, 2017
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF AUGUST 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
REGULAR SECOND APPEAL No.200091/2016
CONNECTED WITH
REGULAR SECOND APPEAL No.200090/2016
IN RSA NO.200091/2016
BETWEEN:
SHRISHAIL,
S/O. SIDDAPPA BHAGYAT,
AGE: 53 YEARS,
OCC: AGRICULTURE,
R/O. KHAJA AMEEN DARGA,
VIJAYAPUR-586 101.
... APPELLANT
(BY SRI. UMESH V. MAMADAPUR, ADVOCATE)
AND:
1. SMT. TIPPAWWA,
W/O. SIDDAPPA BAGAYAT,
AGE : 73 YEARS,
OCC: AGRICULTURE,
R/O. KHAJA AMEEN DARGA,
VIJAYAPUR-586 101.
2
2. SMT. INDRABAI,
W/O. KRISHNAPPA BAGALI,
AGE : 53 YEARS,
OCC: HOUSEHOLD,
R/O. JUMNAL VILLAGE,
TQ & DIST: VIJAYAPUR-586 101.
3. SMT. KALAVATHI,
W/O. KALLAPPA BIRADAR,
AGE : 38 YEARS,
OCC: AGRICULTURE,
R/O. KHAJA AMEEN DARGA,
VIJAYAPUR-586 101.
4. GOUDAPPA,
S/O. DHAREPPA BIRADAR,
AGE : 68 YEARS,
OCC: AGRICULTURE,
R/O. KHAJA AMEEN DARGA,
VIJAYAPUR-586 101.
5. KUM. RENUKA,
D/O. GOUDAPPA BIRADAR,
AGE : 21 YEARS,
OCC: STUDENT,
R/O. KHAJA AMEEN DARGA,
VIJAYAPUR-586 101.
6. BHIMASHANKAR,
S/O. GOUDAPPA,
AGE : 20 YEARS,
OCC: STUDENT,
R/O. KHAJA AMEEN DARGA,
VIJAYAPUR-586 101.
... RESPONDENTS
(BY SRI. R.S. SIDHAPURKAR, ADVOCATE FOR R-1 TO R-3,
NOTICE TO R-4 TO R-6 ARE SERVED & UNREPRESENTED)
3
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 15.12.2015, PASSED IN R.A. NO.39/2014
ON THE FILE OF THE II ADDL. DISTRICT JUDGE,
VIJAYPUR AT VIJAYPUR, PARTLY ALLOWING THE APPEAL
AND MODIFYING THE JUDGMENT AND DECREE DATED
04.03.2014 PASSED IN O.S. NO.79/2007 ON THE FILE OF
THE II ADDL. SENIOR CIVIL JUDGE, BIJAPUR AT BIJAPUR.
IN RSA NO.200090/2016
BETWEEN:
SHRISHAIL,
S/O. SIDDAPPA BHAGYAT,
AGE: 43 YEARS,
OCC: AGRICULTURE,
R/O. KHAJA AMEEN DARGA,
VIJAYAPUR-586 101.
... APPELLANT
(BY SRI. UMESH V. MAMADAPUR, ADVOCATE)
AND:
1. SMT. SAVITHRI,
W/O. RAJU KALAWAD,
AGE : 47 YEARS,
OCC: COOLIE,
R/O. KHAJA AMEEN DARGA,
VIJAPUR-586 101.
2. SMT. VIJAYALAXMI,
W/O. LAXMAN HUDANOOR,
AGE : 33 YEARS,
OCC: HOUSEHOLD,
R/O. KHAJA AMEEN DARGA,
VIJAYAPUR-586 101.
4
3. SMT. TIPPAWWA,
W/O. SIDDAPPA BHAGAYAT,
AGE : 77 YEARS,
OCC: HOUSEHOLD,
R/O. KHAJA AMEEN DARGA,
VIJAYAPUR-586 101.
4. SMT. INDRABAI,
W/O. KRISHNAPPA BAGALI,
AGE : 54 YEARS,
OCC: HOUSEHOLD,
R/O. JUMNAL VILLAGE,
TQ & DIST: VIJAYAPUR-586 101.
5. SMT. KALAVATHI,
W/O. KALLAPPA BIRADAR,
AGE : 39 YEARS,
OCC: HOUSEHOLD,
R/O. KHAJA AMEEN DARGA,
VIJAYAPUR-586 101.
6. GOUDAPPA,
S/O. DHAREPPA BIRADAR,
AGE : 69 YEARS,
OCC: AGRICULTURE,
R/O. KHAJA AMEEN DARGA,
VIJAYAPUR-586 101.
7. GIRIJABAI,
D/O. DAYANAND KALABURAGI,
AGE: 28 YEARS,
OCC: HOUSEHOLD,
R/O. KHAJA AMEEN DARGA,
VIJAYAPUR-586 101.
5
8. KUM. RENUKA,
D/O. GOUDAPPA BIRADAR,
AGE : 28 YEARS,
OCC: STUDENT,
R/O. KHAJA AMEEN DARGA,
VIJAYAPUR-586 101.
9. BHIMASHANKAR,
S/O. GOUDAPPA BIRADAR,
AGE : 21 YEARS,
OCC: STUDENT,
R/O. KHAJA AMEEN DARGA,
VIJAYAPUR-586 101.
10. GANGADHAR,
S/O. RAMAGONDAPPA HIROLLI,
AGE : 49 YEARS,
OCC: AGRICULTURE,
R/O. ADARSH NAGAR,
VIJAYAPUR-586 101.
11. GIRISH,
S/O. SARWAD KRISHNAPPA,
AGE : 41 YEARS,
OCC: AGRICULTURE,
R/O. MALALLI VILLAGE,
TQ: MUDHOL,
DISTRICT: BAGALKOT-587 313.
... RESPONDENTS
(BY SRI. S.S. MAMADAPUR, ADVOCATE FOR C/R-2,
SRI. R.S. SIDHAPURKAR, ADVOCATE FOR R-3 TO R-5,
NOTICE TO R-1, R-6, R-7, R-8, R-9, R-10 ARE SERVED AND
UNREPRESENTED)
6
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 15.12.2015, PASSED IN R.A. NO.39/2014
ON THE FILE OF THE II ADDL. DISTRICT JUDGE,
VIJAYPUR AT VIJAYPUR, PARTLY ALLOWING THE APPEAL
AND MODIFYING THE JUDGMENT AND DECREE DATED
04.03.2014 PASSED IN O.S. NO.79/2007 ON THE FILE OF
THE II ADDL. SENIOR CIVIL JUDGE, BIJAPUR AT BIJAPUR.
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. Perused the judgments and decree passed by the Trial Court and the First Appellate Court and also the records.
For the purpose of easy understanding and convenience, ranks of the parties as per their ranks before the Trial Court is retained.
Plaintiffs Smt. Savithri and Smt. Vijayalaxmi have filed a suit against defendants Smt. Tippawwa and others in O.S. No.79/2007 for partition and separate 7 possession of their respective shares in the suit schedule properties. The suit schedule properties are the agricultural lands situated at different places in Bijapura Taluk i.e., Sy.Nos.828/1C, 67/1, 178 and 197 and also a house property bearing CTS No.500 of Ward No.8 of Bijapur City.
2. The plaintiffs' claim that the Suit Schedule 'A' properties are the joint family and ancestral properties of the plaintiffs and the defendants. Their father Siddappa died on 19.02.2005 leaving behind the plaintiffs and defendant Nos.1 to 4 as his legal representatives. One Shantabai who is also a daughter had predeceased her father Siddappa about 11 years ago survived by defendant Nos.5 to 8. The defendant Nos.9 and 10 are the purchasers of some of the properties i.e., Sy.No.67/1 from Defendant No.3. It is contended by the plaintiffs that there was no partition in the joint family properties. However, Defendant No.3 8 who is the only brother of the plaintiffs has been looking after the management of the plaint Schedule properties, even during the lifetime of Siddappa and thereafter. The plaintiffs apprehending that the defendant No.3 has been making attempts to alienate the suit schedule properties requested Defendant No.3 to part with their legitimate share in the suit schedule properties by way of partition as the defendants refused for the same, the plaintiffs have come up before the Court for legitimate share in the suit schedule properties. The Defendant Nos.1 to 4, 5, 7 and 8 have filed the written statement. They have virtually admitted the relationship between the parties and also admitted that the suit schedule properties are the joint family properties of the plaintiffs and the defendants and these defendants have also sought for their shares by means of filing counterclaim by paying respective Court fee. 9
3. The defendant No.3 who is the real contender before the Trial Court has filed his detailed written statement denied all the allegations made against him except admitting the description of the properties and as well as the relationship between the parties. He denied that there is no partition in the family and the said properties are still the joint family and ancestral properties. Inter-alia it is further contended that, the plaintiffs, defendant Nos.1, 2 and 4 during the year 2001 have relinquished their right, title and interest over the suit schedule properties in favour of Defendant No.3, under a family arrangement dated 31.08.2001. On the basis of said Relinquishment Deeds, the defendant No.3 became the absolute owner in possession and enjoyment of the entire suit schedule properties. The defendant No.3 appears to be the only male member and all the plaintiffs and other defendants are his sisters and he claims that he has been looking after the affairs of the plaint properties, cultivating the 10 same and dealing with the properties as exclusive and absolute owner, but not as Kartha of the family at any point of time after 31.08.2001. Therefore, the defendant No.3 claim that the suit schedule properties are no more joint family and ancestral properties in his hands. The defendant No.3 has also narrated that in order to extract more money or in order to wreck vengeance against defendant No.3, plaintiffs have filed a false suit and therefore, the suit is liable to be dismissed. The defendant No.3 has also further filed an additional written statement in which he has stated that he has sold two extents of properties in Sy.No.67/1 measuring 1 acre 32 guntas and 2-00 acres respectively in favour of Defendant Nos.9 and 10, under registered sale deeds dated 17.12.2009. Therefore, the defendant Nos.9 and 10 have become the absolute owners in possession and enjoyment of their respective properties sold to them and they are in lawful possession of the same. 11
4. The defendant Nos.9 and 10 have also filed their independent written statements claiming that they are the bona-fide purchasers of land bearing Sy.No.67/1 to the extents of 1 acre 32 guntas and 2-00 acres respectively, for consideration. Therefore, the suit is not maintainable against them.
5. It is evident from the record that the suit was filed in the year 2007. Admittedly, the defendant Nos.9 and 10 have purchased the properties in Sy.No.67/1 in the year 2009. Therefore, they cannot claim that they are the bona-fide purchasers that plea is not available to the defendants. However, their rights are subject to the final decision of the suit. They are the purchasers along with the litigation.
6. Based on the above said rival contentions of the parties, the Trial Court has framed the following issues;
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"1. Whether the plaintiffs prove that they are in joint possession over the suit properties having the joint share as being alleged?
2. Whether plaintiffs prove that the mutation entries No.18401 and 17970 are certified without their knowledge and consent as being alleged?
3. Whether defendant No.3 proves that the plaintiffs, defendants No.1, 2 and 4 have already relinquished their rights in the properties on 31.08.2001 as being contended?
4. What the parties are entitled the relief?
5. What order or decree?"
7. The plaintiffs in order to prove the case examined Plaintiff No.1 as PW-1 and got marked 16 documents at Exs.P-1 to P-16. The defendant Nos.1, 2 and 4 have examined themselves as DW-1 to 3 and Defendant No.9 for himself and Power of Attorney holder on behalf of the Defendant No.10 got examined as DW-4. The Power of Attorney holder of defendant No.3 has been examined 13 as DW-5 and got marked the documents at Exs.D-1 to D-19. One Notary Advocate got examined as DW-6 on behalf of defendant No.3 and through him, Ex.D-20 came to be marked. DWs.7 and 8 were also examined in order to establish the so-called Relinquishment Deeds executed by the plaintiffs and defendant Nos.1, 2 and 4.
8. On appreciation of oral and documentary evidence on record, the Trial Court has answered Issue Nos.1 and 2 in 'Affirmative' and Issue Nos.3 and 4 in the 'Negative' and granted the Decree in favour of the plaintiffs and defendant Nos.1, 2 and 4. The Trial Court has allowed the counterclaim of defendant Nos.1, 2, 4, 5, 7 and 8 and granted 1/7th share each to them and the plaintiffs have also been granted 1/7th share in all the suit schedule properties.
9. Being aggrieved by the above said judgment and decree, the Defendant No.3 Sri. Shrishail has preferred Regular Appeal Nos.37/2014 and 39/2014 14 before the II Additional District Judge, Vijaypur. The said appeals were filed challenging the decree granted by the Trial Court in favour of the plaintiffs and also the decree granted by allowing the counterclaims of defendant Nos.1, 2, 4, 5, 7 and 8, respectively.
10. On the basis of the grounds of appeal urged, the findings given by the Trial Court on all the issues and as well as considering the pleadings and evidence appreciated by the Trial Court, the First Appellate Court has also framed certain points for consideration which are enumerated below;
"1. Whether defendant No.3 has proved that plaintiffs and defendants 1, 2 and 4 have already relinquished their rights in the properties on 31.08.2001, therefore they cannot have any claim over the same?
2. Whether defendants 9 & 10 have proved that they are bonafide purchasers for value without notice of the shares of the plaintiffs?15
3. Whether the findings given by the trial Court on Issue Nos.1 to 6 are correct?
4. Whether the judgment and decree of the trial Court needs to be interfered with?
6. What order?"
11. Again after re-assessing the oral and documentary evidence on record, the First Appellate Court also answered point No.1 in the 'Negative' and Point Nos.2 to 4 partly in the 'Affirmative' and consequently the decree granting the shares in favour of the plaintiffs and defendants has not been disturbed. Virtually to that extent, the appeals have been dismissed. However, the appeals have been allowed in part for the purpose of modifying the shares of the respective parties, as the Trial Court has not properly allocated the shares to the respective parties. Consequently, the Appellate Court held that the plaintiffs and the defendant Nos.1, 2, 4 and 5 to 8 are entitled for shares out of the suit schedule properties by 16 metes and bounds, specifically mentioning the shares of the plaintiffs and the defendants. The Appellate Court held that the plaintiffs, defendant No.2, defendant No.4 each are entitled for 1/21st share. The defendant Nos.5 to 8 together are entitled for 1/21st share by metes and bounds. The defendant No.1 and defendant No.3 are entitled for 8/21st share each in the suit schedule properties by metes and bounds. It is also specifically ordered that, equity has to be worked out in favour of defendant Nos.9 and 10 - the purchasers out of the shares of defendant No.3-Sri. Shrishail to the extent of sale in favour of some properties.
12. The learned counsel for the appellant seriously objecting the decree granted by the Trial Court and the First Appellate Court has categorically contended and strongly placed reliance on the documents which are marked at Exs.D-1, 2, 3 and 4 which are Relinquishment Deeds alleged to have been 17 executed by the plaintiffs and Defendant Nos.1, 2 and 4. It is the contention of the learned counsel that the executions of these documents are admitted by the parties. Further added to that, the plaintiffs and defendant Nos.1, 2 and 4 have admitted their signatures on these Relinquishment Deeds. Therefore, they cannot blow hot and cold that, they have not received any shares in the suit schedule properties. Once they admit these documents, there is no question of proving these documents in accordance with law by virtue of Section 58 of the Indian Evidence Act that, the admitted facts need not be proved. Further he contended that the possession of the suit schedule properties have been continuously with the defendants and at no point of time, the plaintiffs and the defendant Nos.1, 2 and 4 are in joint possession of the suit schedule properties as shareholders after 31.08.2001 from the date of execution of the Relinquishment Deeds.
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13. As per Section 17 of the Indian Registration Act, a strong presumption has to be raised in respect of public documents and revenue documents and also relied upon Section 133 of the Land Revenue Act. Therefore, on the main ground of Relinquishment Deeds, the learned counsel canvassing the arguments before this Court.
14. On perusal of the pleadings of the parties and the evidence adduced and the documents produced, it is crystal clear that there is no dispute with regard to the relationship between the parties as well the existence of the properties as joint family and ancestral properties. Defendant No.3 only claims the right, title and interest over the properties of plaintiffs as well as the Defendant Nos.1, 2 and 4 on the basis of the Relinquishment Deeds referred to above. This Court has observed both the Trial Court and Appellate Court 19 have concentrated and considered the following questions and answered them properly.
Whether those unregistered Relinquishment Deeds even assuming for a moment are executed and proved before the Court executed by the plaintiffs and defendant Nos.1, 2 and 4 and deemed to have proved before the Trial Court? Whether the said documents in any manner conveyed any right, title and interest over the said properties. Whether the presumption under Section 133 of the Land Revenue Act and Section 17 of the Indian Evidence Act in any manner come to the help of defendant No.3?
15. Section 17 of the Indian Registration Act refers to the documents, which are compulsorily registrable. Section 17(1)(b) is relevant provision, which requires to be considered by this Court which reads thus;
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"Section 17(1)(a) - xxx Section 17(1)(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;
Section 17(1)(c) - *** Section 17(1)(d) - *** Section 17(1)(e) - ***"
16. Section 17(2)(v) is also quite relevant to some extent, which also reads as follows;
"Section 17(2)(i) - *** Section 17(2)(ii) - *** Section 17(2)(iii) - *** Section 17(2)(iv) - *** Section 17(2)(v) - any document other than the documents specified in sub-section (1A) not itself creating, declaring, assigning, limiting or extinquishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right 21 to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right title or interest;
Section 17(2)(vi) - *** Section 17(2)(vii) - *** Section 17(2)(viii) - *** Section 17(2)(ix) - *** Section 17(2)(x) - *** Section 17(2)(xa) - *** Section 17(2)(xi) - *** Section 17(2)(xii) - *** "
17. Looking to the above said provisions, it is crystal clear that the documents which are compulsorily registrable if it is not registered, the consequence is that, no such intended right, title and interest over the immovable properties would pass in favour of the person who claims to be the transferee under the said documents. Admittedly, the Relinquishment Deeds - Exs.D-1 to D-4 which are placed before the Trial Court are the unregistered documents which are also non- testamentary instruments. The defendants claim that, 22 by virtue of the said documents, it operated to create and declare the right, title and interest in favour of defendant No.3 and it consequently extinguished the right, title and interest over those shares of the plaintiffs and defendant Nos.1, 2 and 4. Therefore, the said claim of defendant No.3 exactly falls under the category of under Section 17(1)(b). Therefore if those documents under which the parties intended to create any right, title and interest for the present or in future if the property or the rights are worth more than Rs.100/- and upwards, those documents are compulsorily registrable. Likewise, Section 17(2)(v) says that if the document other than the documents specified in sub- section (1A) of Section 17 which are not creating any right, title and interest over the property, but merely creating a right to obtain another document, then only such document need not be compulsorily registrable. 23
18. The provisions of the Indian Registration Act under Section 49 also makes it abundantly clear the effect of non-registration of documents required to be registered. The said provisions reads as follows;
"Section 49 - No document required by Section 17 [(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
(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:
1[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 (3 of 1877)2, 3(***) or as evidence of any collateral transaction not required to be effected by registered instrument.] 24
19. Therefore, on plain reading of the said document, it is clear that the documents which are compulsorily registrable under Section 17 if not registered will not confer any right, title and interest over the properties and they shall not be received in evidence of any transaction affecting such properties or conferring any such power unless it has been registered. However, an explanation has been given to the agreement of sale which may be received in evidence of a contract in a suit for specific performance and also for any collateral transactions not required to be effected by means of registered documents.
20. Therefore, looking to the above said provisions, the law is very much clear that no document which requires to be registered under the provisions of the Registration Act which is compulsorily registrable will create any right, title and interest in favour of the alleged transferee and he cannot claim any declaration 25 or right, title and interest over such properties in any manner. Though the defendant No.3 can claim on the basis of such documents that he entered into possession of the properties. But once it is shown that it is a joint family properties and any right, title and interest passed to the defendant No.3 in respect of the shares of plaintiffs and defendant Nos.1, 2 and 4, the legal consequences remains that defendant No.3 obtained possession and continued in possession of the properties which remained as joint family or ancestral. When the right, title and interest have not been acquired, the previous right of the parties and possession has to be reckoned according to Hindu Law. Therefore if any one person is in possession and enjoyment of the joint family and ancestral properties till partition takes place or any outster is pleaded or adverse possession is pleaded by the person who is in possession of the properties, It shall be presumed that he has been in possession and enjoyment of the 26 properties for himself and on behalf of all the other sharers. In this context also, the defendant No.3 cannot claim any right, title and interest or exclusive possession over the property particularly on the basis of his possession alleged to have been acquired under the above said unregistered Relinquishment Deeds. Therefore, no further question arises before this Court. Though this Court has discussed various provisions of the Registration Act, but discussion itself does not constitute any substantial question of law to be decided by this Court. This is only reiteration of the above said provisions and considering the factual aspects of the case with reference to the above said provisions. Therefore, in the above said facts and circumstances, I am of the opinion, no substantial question of law arises for consideration.
21. Last but not least, as I said that neither Section 17 and Section 58 of the Indian Evidence Act 27 nor Section 133 of the Land Revenue Act comes to the help of the defendant in order to pass any right, title and interest in respect of the said properties merely on the basis of the revenue entries as it is discussed above. When the law presumes that one person's possession is that of the possession of all the sharers or the rightful holders. Merely because the revenue entries are in the name of any one person, that itself will not create any exclusive right, title or interest over the properties.
22. In view of the above said discussions, I do not find any strong reason to frame any substantial question of law. Hence, both the appeals are liable to be dismissed at the threshold.
23. Hence, I pass the following:
ORDER The appeals are dismissed at the stage of admission as no substantial question of law arises for consideration.28
Considering the relationship between the parties, there is no order as to cost.
Sd/-
JUDGE snc