Karnataka High Court
Smt Sumangalamma vs Smt Hiriyamma on 10 January, 2017
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
R.S.A NO. 1029/2016 (PAR)
BETWEEN
SMT SUMANGALAMMA,
W/O LATE CHALAPATHI,
AGED ABOUT 51 YEARS,
R/AT KAMMADATTI VILLAGE,
AVANI HOBLI, MULBAGAL TALUK,
KOLAR DISTRICT - 563 131. ... APPELLANT
(BY SRI RAVI H. K., ADVOCATE)
AND
1. SMT HIRIYAMMA,
W/O RAMAPPA,
AGED ABOUT 37 YEARS,
R/AT KAMMADATTI VILLAGE,
AVANI HOBLI, MULBAGAL TALUK,
KOLAR DISTRICT - 563 131.
2. SRI VENKATESHAPPA,
S/O LATE MUNISHAMAPPA,
AGED ABOUT 74 YEARS,
R/AT KAMMADATTI VILLAGE,
AVANI HOBLI, MULBAGAL TALUK,
KOLAR DISTRICT - 563 131.
3. SMT MANJULA,
W/O SRINIVASA,
AGED ABOUT 34 YEARS,
R/AT VALLI HOSURU VILLAGE,
KOLAR TALUK, KOLAR
DISTRICT - 563 131.
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4. SMT NEELAMMA,
W/O GOPI,
AGED ABOUT 32 YEARS,
R/AT GANDHI NAGAR,
SETTAPPA HOUSE,
KOLAR TOWN, KOLAR - 563 131.
5. SMT THIMMAKKA,
W/O VENKATESHAPPA,
AGED ABOUT 44 YEARS,
R/AT KAMMADATTI VILLAGE,
AVANI HOBLI, MULBAGAL TALUK,
KOLAR DISTRICT - 563 131 ... RESPONDENTS
(BY SRI G. PAPI REDDY, ADV. FOR R-1.
SRI N. S. SHESHADRI, ADV. FOR R-2 TO R-4.
V.O.D 14.11.2016 NOTICE TO R-5 HELD
SUFFICIENT)
THIS RSA IS FILED U/S 100 OF CPC., 1908
AGAINST THE JUDGMENT AND DECREE DATED
28.03.2016 PASSED IN RA.NO.150/2013 ON THE FILE
FOR THE II ADDL. SENIOR CIVIL JUDGE, AND JMFC.,
ITINERATING AT MULBAGAL, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
23.03.2013 PASSED IN OS.NO.192/2010 ON THE FILE
OF THE PRL. CIVIL JUDGE AND JMFC., MULBAGAL.
THIS RSA COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri Ravi H.K., learned counsel for the appellant. Perused the judgment of the trial Court and the First Appellate Court.
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2. The learned counsel for the appellant strenuously contends that in a partition suit filed by the plaintiff, the defendant No.4 (appellant herein) has taken up the contention that the properties have already been divided in view of a family arrangement or a papupatti recorded and executed by defendant No.4 allocating properties to the respective share holders. The trial Court and the First Appellate Court have not properly interpreted this particular document holding that the said document is an un-registered document which is not binding on other share holders. Therefore, independently considering the evidence on record and as well Ex.D-11, which is the alleged palupatti, came to the conclusion that the plaintiff is entitled for her respective share in the suit schedule property and accordingly decreed the suit.
3. The learned counsel for the appellant contended that the substantial question of law arises for consideration is:
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"Whether the trial Court has properly interpreted that document as a palupatti or not?
4. In order to consider the above question amounts to substantial question of law, it is just and necessary for this Court to re-look into the judgments of the trial Court and the First Appellate Court as to how the courts have considered that particular document.
4(a). The relationship between the parties is not in dispute. The plaintiff (Respondent No.1) and defendants 2 & 3 (respondent Nos.3 & 4) are the daughters and defendant No.4 (appellant) is the daughter-in-law of defendant No.1 (respondent No.2).
5. The plaintiff Smt. Hiriyamma, claiming herself to be the member of the joint family filed a suit against the defendants seeking partition and separate possession of the suit schedule property. It is contended that the plaintiff and defendants 2 & 3 are the daughters of defendant No.1, the husband of defendant No.4 wife of late Chalapathi, is also one of 5 the son of defendant No.4. The plaintiff and defendant Nos.2 & 3 are all married and were residing with their husband, in their family. Defendant No.1 and defendant No.4 were residing in a joint family enjoying the suit schedule property. Some of the suit properties were also acquired by defendant No.1 as kartha of the joint family. Therefore, all the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants and on that ground, the plaintiff has claimed a share in the suit schedule property.
6. On service of summons, the defendants 1 to 3 and 4 have appeared through their respective counsels and particularly defendant No.1 has filed the written statement admitting the contention of the plaintiff and she has been sailing with the plaintiff. However, the defendant No.4 filed her independent written statement admitting the relationship and also the suit schedule properties as the joint family properties, but specifically denied the other averments that the plaintiff is entitled for any share in the suit schedule property. It is the specific contention of defendant No.4 that after the 6 death of her husband, her father-in-law, the defendant No.1 being the kartha of the family has executed a partition deed in her favour dated 13.4.2007 by allotting a share in respect of defendant No.4. The defendant No.1 has in fact affixed his LTM on the palu patti and executed the same in the presence of the witnesses. On the basis of the said palu patti, the revenue documents have been changed over to the respective parties. Therefore, it virtually amounts to severance of the status of the joint family and allocating the respective shares of the parties.
7. On the basis of the rival contentions of the parties, the trial Court has framed the following issues:
(1) Whether the plaintiff proves that the suit schedule properties are the ancestral and joint family properties of plaintiff and defendants?
(2) Whether the plaintiff further proves that inspite of demand made by the plaintiff and defendants failed to allot legitimate share in the suit schedule properties?7
(3) Whether the 4th defendant proves that after the death of husband of this defendant, the defendant No.1 executed partition deed in favour of her on 13.04.007 as contended in para-6 of the written statement?
(4) Whether the 4th defendant further proves that the plaintiff and defendants No.1 to 3 intentionally and deliberately not included some of the properties of joint family as contended in para-8 of the written statement?
(5) Whether the defendant no.1 is
entitled for share in the suit schedule
properties?
(6) Whether the plaintiff is entitled for
1/5th share in all the suit schedule properties as prayed?
(7) What order or decree?
8. The plaintiff in order to prove her case examined herself as PW1 and examined two witnesses as PWs.2 & 3 and got marked Exhibits P1 to P8. The defendant No.3 is examined herself as DW1 and examined other witnesses as DWs.2 to 5 and got marked Exhibits D1 to D13. The trial Court after considering the oral and documentary evidence, 8 particularly discussing Ex.D-11 alleged to have been executed unilaterally by the father-in-law of defendant No.4 has specifically held that the said document cannot be taken into consideration as the same was not registered and the same document virtually amounts to a partition deed and recorded the status of the parties on the date of the document. Therefore, the Court held that it requires registration otherwise, the contents of the said document cannot be taken into consideration with regard to the partition amongst the members of the family. Holding that Ex.D-11 does not favour defendant No.4, the trial Court has decreed the suit allocating 1/5th share each to the plaintiff and defendant Nos.1 to 3 and defendant No.4 by decreeing the suit.
9. Being aggrieved by the above said judgment of the trial Court, the defendant No.4 has preferred an appeal before the II Addl. Sr. Civil Judge & JMFC, Kolar, in RA No.150/2013, taking up the contention that the trial Court has not properly appreciated the oral and documentary evidence and particularly Ex.D-11 which is the un-registered partition deed, ought to have been 9 considered and accepted by the trial Court, atleast for collateral purpose of possession.
10. The First Appellate Court has culled out the brief factual aspects and the pleadings of the parties, also framed two points for consideration which are as follows:
"(1) Whether the appellant has made out grounds to allow IA No.3 filed under Order 41 Rule 27 read with Section 151 of CPC by permitting her to produce the documents as additional evidence on her behalf?
(2) Whether the judgment and decree passed by the learned Prl. Civil Judge & JMFC, Mulbagal in OS No.192/2010 dated 23.2.2013 is opposed to law, weight of evidence and probabilities of the case which needs interference by this Court?"
11. After considering the submissions made by the learned counsel for the appellant, the Court has answered the above said points in the 'Negative' and ultimately held that the trial Court has not committed 10 any error in appreciating the oral and documentary evidence on record. Even the First Appellate Court has also re-appreciated document Ex.D-11, the alleged partition deed which is an un-registered document and it specifically held that it is not binding upon the defendant Nos.2 & 3 and plaintiff because they are not parties to the said document. Therefore, it held that the said document is not binding upon the plaintiff and other defendants. Further, it held that the said document is an un-registered document which cannot be taken into consideration by the Court. Therefore, the Court has rejected the plea of defendant No.4 and dismissed the appeal and confirmed the judgment of the trial Court.
12. Even on re-looking to the document produced by the learned counsel for the appellant, it clearly discloses that the said document was recorded by the father-in-law of defendant No.1 by name Byatappanavara Venkateshappa. The said document appears to have been entered into between defendant No.4 and defendant No.1. The said document clearly 11 recites that as on the date of the document, defendant No.1 and 4 have decided to severe from the status of joint family and they want to enjoy the properties individually from that particular day and it is specifically narrated from that day onwards, their relationship as joint family members has been severed and pleaded that the blood relationship would continue. Though this document is cited as a partition deed, it is not the document which records the earlier partition or palupaptti or arrangement, so as to exclude the document from registration when a document is specifically records that the partition taken up on that particular date of the document itself and from that date, the parties want to severe from the joint family by taking their properties, then such document amounts to a partition deed between the members of the joint family which requires registration otherwise, the contents of the said document cannot be in any manner considered to be a partition deed of the joint family and plaintiff is not entitled for any share. 12
13. In the above said facts and circumstances of the case, on the basis of the facts and the factual matrix contained in Ex.D-11, the trial Court and the First Appellate Court have considered the case of the parties in proper perspective. When such a document is properly considered on facts, this Court will not get any jurisdiction to frame any substantial question of law. When both the courts have decided the matter on the factual matrix of the case. Therefore, no substantial question of law arises for consideration of this Court. Hence, the appeal is liable to be dismissed at the stage of admission itself.
Accordingly, the appeal is dismissed. Parties to bear their own costs.
Sd/-
JUDGE PL*