Karnataka High Court
A Ashok Kumar vs Shivarudra on 4 August, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.31 OF 2012 (PAR)
BETWEEN:
A ASHOK KUMAR
DEAD BY LRS
1(a) MANJULA G,
W/O LATE ASHOK KUMAR A,
AGED ABOUT 53 YEARS,
R/O NO.1047/33,
II MAIN, 6TH CROSS,
VIDYARANYAPURAM,
MYSURU - 560 008.
1(b) DEEPAK A,
S/O LATE ASHOK KUMAR A,
AGED ABOUTR 33 YEARS,
R/O NO.1047/33,
II MAIN, 6TH CROSS,
VIDYARANYAPURAM,
MYSURU - 560 008. ... APPELLANTS
(BY SRI MAHANTESH S HOSMATH, ADVOCATE (PH))
AND:
1. SHIVARUDRA,
S/O LATE AMMANNAPPA,
AGED ABOUT 54 YEARS,
R/O NO.1047/33,
2ND MAIN, 6TH CROSS,
2
VIDYARANYAPURAM,
MYSURU - 560 008.
SHIVAMMA DEAD BY LRS
2. KUMARA SWAMY,
S/O LATE AMMANAPPA
(APPEAL AGAINST R2 IS ABATED
BY ITS ORDER DATED 19/12/2019)
3. M MANIKANTHI,
S/O LATE GANGALAMBIKA,
AGED ABOUT 56 YEARS,
R/O NO.1047/33,
2ND MAIN, 6TH CROSS,
VIDYARANYAPURAM,
MYSURU - 560 008.
4. M LOHIT,
S/O LATE GANGALAMBIKA,
AGED ABOUT 28 YEARS,
R/O NO.1047/33,
2ND MAIN, 6TH CROSS,
VIDYARANYAPURAM,
MYSURU - 560 008.
5. S BASAVARAJ DEAD BY LRS
5(a) NINGAMMANNI,
W/O BASAVARAJ,
AGED ABOUT 50 YEARS,
5(b) SANTHOSH,
S/O BASAVARAJ,
AGED ABOUT 32 YEARS,
5(c) SAHANA,
D/O A BASAVARAJ,
AGED ABOUT 28 YEARS.
3
RESPONDENT NO.5(a) to 5 (c)
ARE RESIDENT OF NO.531, 4TH MAIN,
19TH CROSS,
VIDYARANYAPURAM,
MYSURU - 560 008.
6. SRIKANTH,
S/O LATE AMMANAPPA,
AGED ABOUT 55 YEARS,
R/O NO.1047/33, 2ND MAIN,
6TH CROSS, VIDYARANYAPURAM,
MYSURU - 560 008. ...RESPONDENTS
(BY SRI PRASANNA V.R, ADVOCATE FOR R1,
SRI B.S.NAGARAJ, ADVOCATE FOR R5 (A-C),
V/O/DATED: 19.12.2019 R2 IS ABATED,
R3, R4 AND R6 - SERVED - UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 08.09.2011 PASSED IN R.A.NO.743/2010
ON THE FILE OF THE VI ADDL. DISTRICT AND SESSIONS
JUDGE, MYSORE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED:
31.03.2010 PASSED IN O.S.NO.196/2001 ON THE FILE OF
THE CIVIL JUDGE (SR.DN), COURT OF SMALL CAUSES,
MYSORE.
THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
The captioned second appeal is filed by the defendant No.4 questioning the concurrent judgments and decrees of the Courts below.
2. Before adverting to the facts of the case, it is useful for this Court to cull out the family tree of the appellant which is as follows;
Lingappa @ Sannappa (Grandfather) |
-------------------------------------------
| | |
Shivamma S.Mallappa Swamy Gowramma
(1st Daughter) (Son, dead) (2nd Daughter)
(Defendant's mother) (Mother of Plaintiff &
4th Respondent)
Genealogy of plaintiff and defendant family as follows;
Ammannappa |
-----------------------------
| |
Shivamma *Gowramma
| |
--------------------------------- -------------
| | | | | |
Basavaraju Kumaraswamy Srikanta Gangalambika Sivarudra Ashok Kumar * Corrected vide Court order dated: 29.09.2022. 5
3. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.
4. Plaintiff is the elder son of second wife Gowramma, while defendant No.4 is the second son of Gowramma. Deceased defendant No.1 was the wife of late *Ammannappa and after her death her four children were brought on record.
5. The elder son of Gowramma namely, A.Shivarudra has instituted a suit in O.S.No.196/2001 seeking relief of partition and separate possession by specifically contending that the suit schedule properties are joint family ancestral properties. Plaintiff contended that all the suit schedule properties were purchased by utilizing the joint family corpus, therefore, plaintiff claim that the suit schedule properties are joint family ancestral properties. Plaintiff further alleged that his mother Gowramma and Shivamma together instituted a suit for partition in O.S.No.127/1999. Plaintiff alleged that during the pendency of the said suit, defendant Nos.1 and 3 who are * Corrected vide Court order dated: 29.09.2022. 6 the plaintiffs in the earlier suit have forged the thumb impression of plaintiff's mother Gowramma and a memo came to be filed on 12.02.2001 withdrawing the earlier suit. Therefore, plaintiff claim that this very memo seeking withdrawal of earlier suit was forged. Plaintiff further alleged that defendants have divided the properties as per partition deed dated 24.11.2000. Therefore, plaintiff has instituted the present suit for partition.
6. Defendant No.4, who is the brother of plaintiff, tendered appearance on receipt of summons. Defendant No.4 as well as defendant Nos.1, 3, 5 and 6 have taken a specific contention that their respective mothers during the pendency of the suit have got the properties divided among themselves under the registered partition deed dated 24.11.2000. Defendants contended that in terms of registered partition deed, 'A' schedule properties have fallen to the share of Shivamma who was defendant No.1, while 'B' schedule properties were allotted to the share of Gowramma, who is mother of plaintiff and defendant No.4. 7 Defendants also claim that pursuant to partition, plaintiff's mother has bequeathed the properties allotted to her share in favor of her children i.e., plaintiff and defendant No.4.
7. Based on rival pleadings, the Trial Court formulated issues. Plaintiff and contesting defendants have let in oral and documentary evidence. The Trial Court having examined the oral and documentary evidence let in, has answered issue No.2 in affirmative and recorded a finding that defendants have succeeded in proving that the suit schedule properties were self acquired properties of Gowramma and Shivamma. However, while dealing with issue Nos. 3 and 4, the Trial Court held that defendants have failed to prove the registered partition on 24.11.2000 as well as the bequeath made by the mother of plaintiff and defendant No.4 under Will dated 24.11.2000. Consequently, the Trial Court has decreed the suit granting 1/6th share each to the children of Shivamma and Gowramma.
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8. Feeling aggrieved by the judgment and decree of the Trial Court, defendant No.4 preferred an appeal before the Appellate Court. While defendant Nos.1,2,3,4, 5 and 6 who are the children of Shivamma have also preferred an appeal. The Appellate court having independently examined the oral and documentary evidence on record has concurred with the findings of the Trial Court. The finding of the Trial Court recorded on partition deed as well as Will set up by defendants is negatived. Consequently, the Appellate court has dismissed the appeal thereby confirming the judgment and decree of the Trial Court. Against this concurrent finding, the captioned second appeal is filed by defendant No.4.
9. Heard learned counsel appearing for defendant No.4, learned counsel appearing for the plaintiff and learned counsel appearing for defendant Nos.5(a to c). Perused the judgments and decrees of the Courts below.
10. This Court has formulated the following substantial question of law which reads as under;
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"Whether the finding of the Courts below that defendants have failed to prove the partition between defendant No.1 Shivamma and Gowramma in the suit schedule property under registered partition deed dated 24.11.2000 is perverse and contrary to pleadings on record wherein expect plaintiff all other children of Shivamma and Gowramma have admitted the registered partition deed?"
11. On meticulous examination of pleadings of the parties, except plaintiff, all other children of Shivamma and Gowramma are not disputing the partition deed dated 24.11.2000. However, plaintiff has pleaded that defendants in collusion have created a fabricated document tainted as partition deed dated 24.11.2000. While examining the validity of deed and its genuineness, the Trial Court has not ventured into examining as to whether Shivamma and Gowramma have voluntarily agreed to effect partition under the registered partition deed. The Trial Court has embanked upon the minute details, the manner in which Will and partition deed came to be executed on the same day. The Trial Court has got 10 carried away by the fact that stamp used for writing partition deed and Will is consecutively numbered and therefore, the Trial Court has come to conclusion that partition deed is tainted with suspicion and creates a doubt with regard to due execution of registered partition deed. Therefore, on examination of findings recorded by the Trial Court insofar as partition is concerned, this Court is of the view that the procedure adopted by the Trial Court in enquiring into due execution of the Will and partition deed is a faulty procedure. The gravity of proof and evidence that is required to prove the due execution of Will is also extended to the registered partition deed. Except plaintiff, all other children of Gowramma and Shivamma have admitted in unequivocal terms that Shivamma and Gowramma were the absolute owners of the suit schedule properties. If the properties are self acquired properties, then the burden of proof to substantiate allegation that there is fraud is on a higher pedestal. The validity of partition deed is doubted on the premise that the Will though written simultaneously, the Trial Court came to the 11 conclusion that Will was drafted first and then partition deed. It is in this background, the Trial Court has doubted not only the due execution of Will but has also gone to the extent of doubting the registered partition deed.
12. Except bald allegations thereby alleging that partition deed is a forged document there is no tangible evidence to demonstrate that the document is forged by defendant No.4 and other defendants. Both the Courts while deciding the genuineness of the Will have also strangely disbelieved the partition deed. While drawing adverse inference in regard to proof of Will vide Ex.D44, both the Courts concurrently erred in also discarding registered partition deed. The allegations in regard to forgery relating to partition deed entered into between the parties is not substantially proved by the plaintiff. If plaintiff has alleged that partition deed was also on account of fraudulent design by the defendants, the said allegations relating to forgery was required to be proved by the plaintiff. Except some discrepancies in the manner in which the Will and 12 partition deed were executed on the same day, there is absolutely no evidence on record to substantiate the claim of the plaintiff.
13. This Court has formulated the above substantial question of law relating to only partition deed, as counsel appearing for defendant No.4 has confined the second appeal to the registered partition deed and has abandoned his claim insofar as Will is concerned. Therefore, if the entire evidence recorded is taken into consideration, what emerges is that both widow of Ammannappa were the absolute owners. The suit schedule properties admittedly were 'Stridhana' properties. Under the partition deed, both the widows have resolved to take 1/2 share each. Even in absence of registered partition deed, the children of Shivamma namely, Basavaraju, Kumaraswamy, Srikanta, Gangalambika all together would take 1/2 share i.e., 1/8th share. While Gowramma's children i.e., present plaintiff and defendant No.4 would take 1/2 share i.e., 1/4th share each. Therefore, as resolved in the partition deed, 13 shivamma's children would take 1/8th share and not 1/6th share as allotted by the Courts below. While Gowramma's children would take 1/4th share each and not 1/6th share as allotted under the preliminary decree.
14. If under the registered partition deed both the widows have resolved to effect partition, the same cannot be disturbed at this juncture. It would unnecessarily lead to further litigation and it would affect both parties interest. There is absolutely no evidence indicating that the registered partition deed is on account of fraud committed by the defendants and defendant No.1 Shivamma. If the rights are crystallized under registered partition deed, mere bald allegations at the hands of plaintiff, a registered partition deed between two widows cannot be set at naught. By doing so, even plaintiff's right would get effected as is evident in the present preliminary decree. It is very strange to note that under registered partition deed, though plaintiff is entitled for 1/4th share, only for the sake of litigation, plaintiff has voluntarily chosen to 14 take a lesser share under the preliminary decree than what is allotted under the registered partition deed. Therefore, if the validity of registered partition deed is upheld, plaintiff will be benefited and no prejudice will be caused to the plaintiff. If schedule 'A' properties under the registered partition deed have fallen to the share of Shivamma and schedule 'B' properties have fallen to the share of Gowramma i.e., mother of plaintiff and defendant No.4, this Court is of the view that gross injustice will be meted out to the parties, if the concurrent findings of the Courts below on the registered partition deed is not set aside.
15. For the foregoing reasons, substantial question of law is answered in affirmative.
16. Accordingly, I proceed to pass the following:
ORDER
(i) The regular second appeal is allowed.
(ii) The judgment and decree of the Appellate Court passed in R.A.No.734/2010, confirming the 15 judgment and decree dated 31.03.2010 passed in O.S.No.196/2001 are partly set aside. Consequently, suit is decreed in part.
(iii) The registered partition deed dated 24.11.2000 is upheld. In the said partition, mother of plaintiff and defendant No.4 namely Gowramma was allotted Schedule 'B' properties in the partition deed. Therefore, plaintiff is entitled for ½ share in schedule 'B' properties of registered partition deed.
(iv) Draw decree accordingly. No order as to costs.
Pending interlocutory applications, if any, stand disposed of.
Sd/-
JUDGE HDK