Karnataka High Court
N.Nagendra S/O : Late Malleshappa vs Smt. A.Chowdamma on 11 September, 2017
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IN THE HIGH COU RT OF KARNA TAKA
DHARWAD BENCH
DATED TH IS THE 11 T H DAY OF SEPTEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
RSA.NO.5030/2010 (POS)
C/W.
RSA.NO.5031/2010
&
RSA.NO.5217/2008
IN RSA NO.5030/2010:
BETWEEN:
SRI N.NAGENDRA ,
S/O : LA TE MALLESHAPPA,
AGED 42 YEARS , AGRICULTURIS T,
R/O. HOUSE IN SY.NO.58(A),
SANGANAKALLU ROAD,
HADDINAGUNDU VILLAGE,
BELLARY-571102.
... APPELLANT
(BY SRI T.N.RAGHUPATHY & ANIL KA LE, ADVOCA TES.)
AND:
SMT. A.CHOWDAMMA,
W/O LA TE A .RAMANNA
AGED 67 YEARS , AGRICULTURIS T,
R/O : DOOR NO .53, MILLERPET,
BELLARY-571102.
... RESPONDENT
(BY SRI GODE NAGARAJ, ADVOCA TE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE,
AGAINST THE JUDGMENT & DECREE DA TED
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16.11.2009 PASSED IN R.A.NO .85/2008 ON THE FILE
OF THE FAST TRACK COURT-II, BELLARY, ALLOWING
THE APPEAL, FILED AGAINST THE JUDGMENT DATED
07.07.2008 AND THE DECREE PASSED IN
O.S.NO.98/2005 ON THE FILE OF THE II-ADDL.CIVIL
JUDGE(SR.DN) BELLARY, DISMISS ING THE SUIT FILED
FOR DECLARATION BY CANCELLA TION OF
DOCUMENTS.
IN RSA NO.5031/2010:
BETWEEN:
N.NAGENDRA,
S/O LA TE MALLES HAPPA,
AGED 42 YEARS , AGRICULTURIS T,
R/O HOUSE IN SY.NO.58(A)
SANGANAKALLU ROAD,
HADDINAGUNDU VILLAGE
BELLARY.
... APPELLANT
(BY SRI T.N.RAGHUPATHY & ANIL KA LE, ADVOCA TES.)
AND:
SMT.A .CHOWDAMMA,
W/O LA TE A .RAMANNA,
AGED 67 YEARS , AGRICULTURIS T,
R/O. DOOR NO.53, MILLERPET,
BELLARY.571102.
... RESPONDENT
(BY SRI GODE NAGARAJ, ADVOCA TE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE, 1908,
AGAINST THE JUDGMENT & DECREE DA TED
16.11.2009 PASSED IN R.A.NO .81/2008 ON THE FILE
OF THE FAST TRACK COURT-II, BELLARY, ALLOWING
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THE APPEAL, FILED AGAINST THE JUDGMENT DATED
07.07.2008 AND THE DECREE PASSED IN
O.S.NO.46/2005 ON THE FILE OF THE II-ADDL.CIVIL
JUDGE(SR.DN) AT BELLARY, DECREEING THE SUIT
FILED FOR PERMANENT INJUNCTION.
IN RSA NO.5217/2008
BETWEEM:
SMT.A .CHOWDAMMA,
W/O LA TE A .RAMANNA,
AGED ABOUT 65 YEARS,
AGRICULTURES , R/O D.NO.54,
MILLERPET, BELLARY.
... APPELLANT
(BY SRI GODE NAGARAJ, ADVOCA TE)
AND:
SRI N NAGENDRA ,
S/O LA TE N.MALLESHAPPA,
AGED ABOUT 40 YEARS,
AGRICULTURIS TS ,
RESIDING IN SY.NO.50(A),
IN A HOUSE, SANG ANAKALLU
VILLAGE ROAD, BELLARY.
... RESPONDENT
(BY SRI T.N.RAGHUPATHY AND ANIL KALE,
ADVCOATES)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE, 1908,
AGAINST THE JUDGMENT & DECREE DA TED
07.07.2008 PASSED IN R.A.NO .38/2006 ON THE FILE
OF THE II ADDL. CIVIL JUDGE (SR.DN.) BELLARY
DISMISSING THE APPEAL AND CONFIRMING THE
ORDER DATED 07.02.2004 PASSED ON I.A.NO.XIII IN
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O.S.NO.339/1999 ON THE FILE OF THE II ADDL. CIVIL
JUDGE BALLARI.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FO R JUDGMENT ON 26.07.2017, AND
COMING ON FOR PRONOUNCEMENT THIS DAY, THIS
COURT DELIVERED TH E FOLLOWING : -
JUDGMENT
All these three appeals are disposed of by common judgment as the parties and the subject matter of the dispute are same.
1. RSA 5030/2010 and RSA 5031/2010 are filed by the respondent in RA 81 and 85 of 2008, which have been decided by the Fast Track Court-III, Ballari, by its common judgment dated 16.11.2009.
2. The appellant in R.A 38/2006 on the file of 2 n d Addl. Civil Judge (Sr.Dn.), Ballari has preferred RSA 5217/2008, aggrieved by the dismissal of the said appeal.
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3. For the sake of convenience, the parties are referred to with respect to their names, Chowdamma and Nagendra. RSA 5030/2010 and RSA 5031/2010 are filed by Nagendra and RSA 5217/2008 is filed by Chowdamma.
FACTS IN BRIEF:
4. Chowdamma instituted a suit O.S 98/2005 before the II Addl.Civil Judge (Sr.Dn.) Ballari against Nagendra in respect of agricultural property measuring 7.05 acres of land in Sy.No.50(A) of Haddinagundu village, Ballari Taluka (this property is referred to as suit property hereafter). She pleaded that her parents gave the suit property to her for her maintenance by executing a registered settlement deed on 20.01.1968. It is her absolute property. Nagendra was a stranger to her till he married her sister's daughter in the year 2000. This Nagendra instituted a suit, O.S 339/1999 in the court of II Addl. Civil Judge (Jr.Dn.), Ballari seeking :6: partition and separate possession of his share in the suit property. He alleged that, the said property belonged to joint family and that he was the adopted son of Chowdamma. She disputes having adopted Nagendra at any point of time. Since Nagendra married her sister's daughter, adopting him was an impossibility as Nagendra and her sister's daughter stand in prohibited relationship and they could not have married. Nagendra wanted to knock of the suit property and for this reason, he created a memorandum of partition, an unregistered document, and obtained her thumb impressions on the said documents. In the said document it was mentioned that he was the adopted son of Chowdamma and that the suit property was given to him. In the suit instituted by him, Nagendra played fraud on Chowdamma and reported a compromise which was accepted by the Court. :7:
5. Chowdamma pleaded further that she was illiterate and innocent and did not have worldly knowledge. Her sister's husband namely Subbarayudu used to look after the agricultural operations. In the year 1998, there arose differences between her and Subbarayudu, therefore he returned to his native place. In the year 1999, one Kowla Pullaiah got issued a legal notice to Chowdamma demanding specific performance of an agreement of sale in respect of the suit property. At that time, the plaintiff sought the help of Nagendra and his father Malleshappa. Assuring that they would safeguard her interest, they took her to an advocate. Chowdamma believed them and acted on their instructions. She put her thumb impressions on some papers without suspecting the malafides in the conduct of Nagendra and his father. Thus, Nagendra misused the opportunity and created a memorandum of partition in the year 1999 by using old stamp papers of the year 1997 to show :8: as if the memorandum of partition was executed on 05.06.1997. Actually there was no acquaintance between them at that time.
6. Chowdamma has pleaded further that based on the created memorandum of partition, Nagendra instituted a suit O.S 339/1999 in the Court II Addl.Civil Judge (Jr.Dn.) Ballari. He himself engaged a counsel for her. On the 3 r d or 4 t h hearing date of the suit, he managed to file a compromise petition in the said suit and thus obtained a compromise decree. Later on, Nagendra took Chowdamma to the office of Sub- Registrar, and made her put her thumb impressions on the partition deed dated 01.09.1999. Based on this registered partition deed he also obtained revenue records transferred to his name, and even at that time he took her thumb impressions on some papers. Thereafter she suspected bonafides in the conduct of Nagendra and filed a miscellaneous petition, MC :9: 42/2000 in the court of II Addl.Civil Judge (Jr.Dn.) Ballari, seeking to set aside the compromise decree. In the said petition, Chowdamma narrated how Nagendra played fraud on her in obtaining memorandum of partition, the compromise decree and the registered partition deed.
7. The Court on being convinced that Nagendra had played fraud on Chowdamma, allowed the miscellaneous petition, MC 42/2000 on 24.08.2001 and set aside the compromise recorded in O.S 339/1999. The said suit came to be restored. Then, Nagendra filed another miscellaneous petition MC 46/2001 seeking to set aside the order passed in MC 42/2000 stating that the said order was passed in his absence. But the said petition was dismissed on 28.10.2004. The plaint in O.S 339/1999 came to be returned to Nagendra on the ground that the court of Civil Judge (Jr.Dn.), Ballari had no : 10 : pecuniary jurisdiction to try the suit. Nagendra took return of the plaint and re-presented the same in the court of Prl.Civil Judge, (Sr.Dn.) Ballari. In that court, initially it was numbered as URP 138/2004, but on 08.12.2004, it appears that Nagendra himself got the suit dismissed.
8. Despite the suit of Nagendra being dismissed, he took undue advantage of the registered partition deed dated 01.09.1999 and made an attempt to alienate the suit property. Because of these attempts made by Nagendra, Chowdamma felt her interest in the suit property being affected and therefore, filed the suit O.S 98/2005 seeking the reliefs of declaration of title over the suit property, cancellation of partition deed dated 01.09.1999 and possession of the suit property along with consequential relief of permanent injunction to restrain Nagendra from alienating or creating third party interest in respect of the suit property.
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9. Nagendra filed written statement and denied all the plaint averments. He stated that, Chowdamma brought him up from his tender age as her son. Chowdamma is none other than his father's cousin. Chowdamma's father and his father's father were own brothers. Subbarayudu, the husband of Chowdamma's sister created a forged agreement of sale along with one Kowla Pullaiah. Chowdamma and Nagendra came to know of this agreement of sale and they both approached an advocate to give a suitable reply to the notice issued by Kowla Pullaiah. Even before issuance of this notice by Kowla Pullaiah, memorandum of partition between Chowdamma and Nagendra had come into existence. But Chowdamma, subsequently acted on the ill advice of Subbarayudu and refused to execute the partition deed. For this reason Nagendra instituted the suit OS 339/1999. Chowdamma herself engaged an advocate to defend her. In the said suit compromise petition was filed : 12 : voluntarily by Chowdamma and Nagendra. At that time Chowdamma agreed to take house property for her share and give suit property to Nagendra. After the compromise in the suit, Chowdamma voluntarily executed the registered partition deed which is an independent document. Even at the time of registration of the partition deed, Chowdamma demanded Rs.50,000/- from him and that he paid the amount to her. On the basis of the partition deed, he obtained the mutation of the revenue records. He was already in possession of the suit property. Therefore, the allegations made against him are all false. It was Chowdamma who brought pressure on him to marry her sister's daughter Satyamma in the year 2000. By that time partition deed has been registered. Then Chowdamma acted on the ill advice of her brother-in-law Subbarayudu and therefore filed M.C 42/2000 for setting aside the compromise decree. In the said petition, Chowdamma gave his false address and thus : 13 : obtained an exparte order. In the meantime, Chowdamma interfered with her possession of the suit property and therefore he was constrained to file a suit for permanent injunction in O.S.344/2001 (renumbered as O.S.46/2005). After M.C.42/2000 was allowed, he filed another petition MC.46/2001 for setting aside the exparte order passed in M.C.42/2000. He stated further that when the court returned the plaint in O.S.339/1999, he re-presented the same in the court of Prl.Civil Judge (Sr.Dn.), Ballari. But he did not press the suit.
10. Giving the above details, Nagendra pleaded further that the orders passed in M.C.42/2000 and dismissal of the suit in O.S.339/1999, did not affect the registered partition deed executed by Chowdamma as it was an independent instrument. The said partition deed was not executed by Chowdamma pursuant to the terms of the compromise. Therefore, : 14 : Chowdamma's suit is founded on false allegations and hence it has to be dismissed.
11. Nagendra's suit O.S.46/2005 is for permanent injunction against Chowdamma and Kowla Pullaiah. In his plaint he stated that he was in possession of the suit property on the basis of the registered partition dated 01.09.1999. He also gave the details, such as memorandum of partition dated 05.06.1997 and the compromise recorded in O.S.339/1999. He alleged that, on 02.07.2001 when he was ploughing the suit land, Chowdamma and her supporters tried to dispossess him forcibly and therefore, this interference made him to file the suit for permanent injunction.
12. Chowdamma filed written statement almost taking the same pleas as she has taken in her suit O.S 98/2005.
13. In O.S 339/1999, Chowdamma filed an application, IA 13 under Section 144 of CPC : 15 : seeking restoration of possession of suit land after MC 42/2000 was allowed. Her application was dismissed by the trial Court. She challenged this order by preferring an appeal, R.A 38/2006 before the Court of II Addl.Civil Judge (Sr.Dn.) Ballari. This appeal was also dismissed. Hence, the second appeal by her in R.S.A 5217/2008.
14. For dismissing the suit O.S.98/2005, the trial court recorded findings that, Chowdamma went to the office of Sub-Registrar voluntarily, that she received Rs.40,000/- and then executed the partition deed. PW.1 has given an admission in the cross-examination that, Chowdamma went to the office of the revenue authorities. This answer of PW.1 shows that it was the voluntary act of Chowdamma in giving consent for effecting mutation in favour of Nagendra on the basis of partition deed. All these events make it very clear that fraud and misrepresentation cannot be attributed to : 16 : Nagendra. Chowdamma might be an illiterate woman, but execution of memorandum of partition by her, entering into compromise before the Court, execution of partition deed and giving consent for effecting mutation cannot be brought within the scope of fraud and misrepresentation as envisaged in sections 17 and 18 of Indian Contract Act. It may be a fact that the compromise was set aside by the Court in a proceeding initiated by Chowdamma in MC.42/2000, but in the said proceeding Nagendra had been placed exparte; he had no opportunity of adducing rebuttal evidence. Although the court was justified in restoring the suit by setting aside the compromise, the degree of proof to be placed before the Court in such a proceeding is less than the degree of proof required in a full fledged trial conducted in a suit. When Chowdamma sought cancellation of partition deed, she should have adduced evidence. Nobody could speak on her behalf with : 17 : regard to facts which were within her knowledge. Her obstinate absence before the court for the purpose of adducing evidence only shows that there was implied consent by her for all the transactions.
15. The trial court also further held that the burden was on Chowdamma to prove fraud and misrepresentation in the suit filed by her. She did not allege that the contract or compromise was for immoral or illegal or unlawful purpose and that it was against public policy. Mere making allegations of fraud and misrepresentation will not nullify the registered transaction without establishing that the contract was contrary to law and public policy and hence it was void abinitio as contemplated in section 23 of the Indian Contract Act. The learned judge of the trial court is of clear opinion that the terms of contract were neither unfair nor illegal. Owing to love and affection towards Nagendra, and considering him : 18 : as her adopted son or illotom-son-in-law, she entered into compromise and executed a partition deed. From the evidence of DW.1 it can be inferred that Cowdamma treated Nagendra as her adopted son and later on the marriage between Chowdamma's sister's daughter brought Nagendra closer to her in relationship and this was the fact which made Chowdamma execute the documents voluntarily one after other in favour of Nagendra in respect of suit property and this could also be the reason for her not entering the witness box. Even Chowdamma executed a will on 29.06.1999 in favour of Nagendra and this is admitted. Therefore for these reasons the partition deed cannot be cancelled merely on the ground of fraud and misrepresentation for which there is no proof.
16. The learned trial judge also held that the suit O.S.98/2005 was barred by time. He referred to Articles 56, 58 and 59 of the : 19 : Limitation Act, to come a conclusion that the suit should have been filed within three years from 01.09.1999, i.e., the date of the registration of the partition deed. Thus the suit according to him was time barred.
17. The First Appellate Court firstly noticed that the trial court did a mistake in deciding the two suits in O.S.98/2005 and O.S 46/2005 separately, this resulted in misreading the primary documentary evidence that lead to giving conflicting findings in both the suits.
18. With regard to adoption of Nagendra, the first appellate Court is of the opinion that he got his suit O.S.339/1999 dismissed after re- presentation of the plaint in the Court having jurisdiction for the reasons best know to him. Even in the suit O.S.98/2005, filed by Chowdamma, his defense is based on registered partition deed without choosing to assertively plead regarding his adoption by Chowdamma. He : 20 : also did not seek counter claim with regard to his adoption. He is not sure whether he is an adopted son or illotom son-in-law. But having admitted that he married the daughter of Chowdamma's sister in the year 2000, his plea regarding adoption gets falsified. Unless he shows that he has semblance of right over the property along with Chowdamma, forgetting for a moment the compromise in O.S.339/1999 and that the partition deed is an independent transaction, he cannot claim partition. Ex.P.7 makes a reference to the compromise decree where he is shown as an adopted son. In the compromise a direction was sought to Chowdamma to execute the registered partition deed in favour of Nagendra. Therefore it cannot be said that, registered partition deed dated 01.09.1999 is an independent of the compromise decree .
19. With regard to fraud and misrepresentation as narrated by Chowdamma in : 21 : her plaint, the first appellate court has come to conclusion that framing an issue in O.S 98/2005 with regard to binding nature of the compromise in O.S.339/1999 was redundant, in the sense that, when Chowdamma filed MC.42/2000 alleging fraud played by Nagendra in obtaining the compromise decree, the Court held an enquiry with regard to that aspect and ultimately came to conclusion that Chowdamma had been defrauded. Therefore, that issue of fraud had been decided in M.C.42/2000. The said order became final the moment Nagendra's M.C.46/2001 was dismissed. The trial court misread the oral evidence contrary to the documentary evidence placed before it. It should not have held that, Chowdamma failed to establish fraud played on her by Nagendra. There was no need to prove fraud and misrepresentation once again as it had already been proved by her in M.C.42/2000. The trial court further erred in observing that, the order passed in M.C.42/2000 was of no consequence as : 22 : Nagendra had been placed exparte in that proceeding. While coming to this conclusion, the trial court appears to have ignored or lost sight of Ex.P.9, an order passed in M.C.46/2001, a petition filed by Nagendra for setting aside the order passed in MC 42/2000. When Nagendra did not challenge this order, the trial court should not have held that, Chowdamma failed to prove the fraud.
20. With regard to conduct of Nagendra, the first appellate court has held that he has tried his level best to knock of property of Chowdamma by hook or crook by creating documents one after the other. The First Appellate court has held that, even Nagendra makes a reference to a will, Ex.P.17 said to have been executed by Chowdamma in his favour. If really Chowdamma had executed a will, there was no need for him to obtain a memorandum of partition, file a suit for partition thereafter and get a registered partition : 23 : deed pursuant to the compromise decree. All these events positively demonstrate the malafide intention in Nagendra, but unfortunately the trial court leaned in favour of Nangendra.
21. On the point of limitation, it has been held by the First Appellate Court that suit is not time barred. The Trial Court ought to have considered the dates of the orders passed in M.C.42/2000 and also on the application filed by Chowdamma under Section 144 C.P.C. in O.S.339/2009 seeking restitution of possession of the suit property. It is of the opinion that in the background of these proceedings, the suit is not time barred.
22. With regard to O.S.46/2005 filed by Nagendra, the Frist Appellate Court has expressed an opinion that in view of the fact that Chowdamma's title has been established, since the registered partition deed dated 01.09.1999 cannot remain in force as it has no sanctity in : 24 : the eye of law, and that M.C.42/2000 was allowed and Nagendra himself got dismissed the suit O.S.339/1999 (URP 138/2004), his subsequent suit for injunction was not maintainable. The First Appellate Court referred to the ruling of the Supreme Court in the case of Anathulu Sudhakar v. P. Buchi Reddy (Dead) by LRs and others [2008 (3) KCCR 1769] to arrive at this conclusion. Recording these findings, the First Appellate Court allowed the two appeals preferred by Chowdamma.
23. On 20.01.2012, all these appeals were admitted on the following substantial questions of law:-
1. In a case of alleged f raud on the basis of which plain tif f seeks declaration to declare the deed of conveyance/par tition null and void, was it not necessary f or her to tender evidence personally, or is : 25 : the evidence tendered by her attorney suff icien t?
2. As the def endant in O.S.No.98/2005 who was plain tiff in O.S.No.339/99 had sought partition only on the basis of his alleged adoption and not on the basis of any genetic relationship, was not the burden on him to establish and prove the alleged adoption and was not the cour t required to place the burden of proof only on him?
24. It is to be mentioned here that after framing the substantial questions of law, this Court, by exercising power under Rules 24 and 25 of Order 41 C.P.C. permitted Chowdamma to lead additional evidence by directing her to appear before the Trial Court. Accordingly, Chowdamma appeared and adduced evidence as P.W.2 and therefore, the first question does not survive for consideration.
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25. On the second substantial question of law, the learned counsel for Nagendra argued as below:-
(a) When Chowdamma pleaded fraud and misrepresentation in her suit, she should have given their full particulars in the plaint. The plaint is not in conformity with Order VI Rule 4 C.P.C. He referred to the decision of the Supreme Court in the case of Bishundeo Narayan v.
Sengeonirai (AIR 1951 SC 280).
(b) Evidence given by Chowdamma as P.W.2 clearly shows that she had been tutored and that her evidence does not disclose that she had been defrauded by Nagendra. Her evidence is that she did not know Nagendra before the year 2000, but the documents suggest otherwise. There is : 27 : clear evidence that Nagendra was brought up since his childhood by Chowdamma and she considered him as her son throughout. The First Appellate Court has lost sight of this fact.
(c) His second limb of argument is that although compromise decree was set aside and suit O.S.339/1999 was restored, the partition dated 01.09.1999 did not get automatically cancelled. This partition deed is an independent document. The restoration of the suit did not invalidate that document and it cannot be done also. In this registered partition deed, there is no reference to compromise decree or the memorandum of partition that came into existence before Nagendra instituted a suit O.S.339/1999. Thus, the partition deed is an independent document. The finding of the First Appellate Court that : 28 : this partition deed was annulled consequent to setting aside of the compromise is an error committed by the First Appellate Court.
(d) He further argued that even if the said document cannot be considered as a partition deed, it can be considered as a gift made by Chowdamma in favour of Nagendra, as the latter was her adopted son and therefore, in a situation like this, her intention was more important than the nomenclature of the document.
(e) Another point that he argued was that the Trial Court was right in coming to conclusion that the suit was time barred. The First Appellate Court has given a wrong finding that the suit is not time barred. The question of limitation can be raised in the second appeal also. He also submitted that if the question of : 29 : limitation was not urged, either in the Trial Court or in the First Appellate Court, it can be raised in the second appeal as it is a question of law. In support of his arguments, he referred to judgment of the Supreme Court in the case of Smt. Dilboo (dead) by LRs and others v. Smt. Dhanaraji (Dead) and others (AIR 2000 SC 3146).
26. The points urged by the learned counsel for Chowdamma are as follows:-
(a) Nagendra claimed partition projecting himself as the adopted son of Chowdamma. He filed the suit O.S.339/1999 on this basis. He also admits that the suit property absolutely belongs to Chowdamma. He took return of the plaint for re-presenting it before the jurisdictional court and after its re-
presentation, he got the suit dismissed. : 30 : The effect of dismissal of the suit is that his stand that he is the adopted son of Chowdamma, has stood unestablished. Even in the suit filed by Chowdamma, he could have taken up a defence that he is the adopted son; but such a defence is not there. Therefore, he cannot claim to be adopted son of Chowdamma. Thus, he has no right to claim partition.
(b) The Trial Court should not have answered issue No.2 in negative. The compromise was set aside in M.C.42/2000. Nagendra's petition MC.46/2001 was also dismissed. The
Trial Court should have noticed the effect of the orders passed in these two petitions while answering issue No.2. The First Appellate Court has rightly come to the conclusion that the Trial Court has committed an error in this regard. : 31 :
(c) The plaint in O.S.98/2005 discloses full particulars of fraud being stated. It is in conformity with Order VI Rule 4 of C.P.C.
(d) The partition deed dated 01.09.1999 is not an independent document. The moment the compromise in O.S.339/ 1999 was set aside, the partition deed also lost its legal sanctity. The Trial Court has not properly considered the effect of the order in M.C.42/2000, the certified copy of which is marked as Ex.P.8. In the compromise decree, it is clearly written that Chowdamma should execute this partition deed and therefore, the partition deed dated 01.09.1999 was consequent to the compromise. It was not : 32 : an independent document for this reason.
(e) Nagendra cannot claim to be an adopted son of Chowdamma because he married her sister's daughter. He stands in a prohibited relationship to marry Chowdamma's sister's daughter. The Trial Court has lost sight of this and the First Appellate Court has rightly appreciated the evidence. Ex.P.16 shows that Nagendra has given his father's name as Malleshappa, his genitive father. This also falsifies Nagendra's case that he was adopted by Chowdamma.
(f) The learned counsel further submitted that Nagendra makes a reference to a Will as per Ex.P.17 and this document also shows his malafide intention of grabbing Chowdamma's property at any cost. The First Appellate Court has : 33 : rightly observed that this is a created document.
(g) With regard to limitation, it is his argument that suit is not time barred. Chowdamma has also sought cancellation of the partition deed. The cause of action actually arose after the dismissal of M.C.46/2001 and when Nagendra filed suit for injunction. The finding of the First Appellate Court that the suit is not time barred is to be upheld.
(h) The First Appellate Court rightly held that Nagendra's suit for injunction O.S.46/2005 is not maintainable. When Chowdamma's title is not disputed and that the partition deed dated 01.09.1999 does not stand in the eye of law, this injunction suit is not maintainable.
(i) The learned counsel further argued that Chowdamma filed an application under : 34 : Section 144 C.P.C. seeking restitution of the suit property. Both the courts below erred in dismissing these applications. Therefore, the second appeal filed in this regard needs to be allowed and that the two second appeals filed by Nagendra have to be dismissed.
27. The learned counsel has referred to number of judgments in support of his arguments. I don't think that all the judgments can be referred to, because the principles laid down those decisions are well settled and only that judgment which is found to be relevant in the context of the case will be referred to.
28. Before answering the substantial question of law, some of the points that have been argued need to be dealt with. The learned counsel for appellant argued that, the plaint is not in conformity with Order VI Rule 4 CPC. Indeed it is there in the plaint some allegations of : 35 : fraud against Nagendra. But the reliefs claimed by Chowdamma are not founded on fraud or misrepresentation. Those narrations relate to petition MC.42/2000 made by Chandramma; in other words, in her plaint, she has just given an account of some facts which constituted fraud according to her and provided a ground to institute a proceeding for setting aside the compromise. Ex.P.8 reveals this. Any narration about fraud that Chowdamma has given cannot be construed and interpreted that her suit O.S.98/2008, required particulars in conformity with Order VI Rule 4 CPC. In no uncertain terms, it can be said that the court, on being convinced that Nagendra had defrauded Chowdamma, allowed her petition MC.42/2000, and the said order, having attained finality provided a further floor to her to seek cancellation of partition deed dated 01.09.1999, which according to her cannot stand independently. As rightly noticed by the first appellate court, the trial court did certainly : 36 : commit an error when it held in the suit that Chowdamma failed to establish fraud played by Nagendra. There was no need to prove fraud again by Chowdamma in her suit.
29. Further finding of the trial court that an exparte order was passed in MC.42/2000; the degree of proof expected of in a suit should be higher than the proof to be provided in a miscellaneous proceeding is implausible. The trial court certainly appears to have lost sight of the fact that Nagendra's petition MC.46/2001, for setting aside the order in MC.42/2000 was dismissed. Above all, order XXIII Rule 3B CPC bars a separate suit for setting aside the compromise. This bar, therefore, obviously envisages that grounds put forward for cancellation of the compromise must be raised in the form a of petition or an application to be filed in the suit in which compromise is recorded. Unless the grounds are established convincingly : 37 : to the court, the compromise cannot be set aside. This being the position, if Chowdamma's petition had been allowed, it should be only after her being able to prove to the satisfaction of the court that fraud had been played on her. Order VIII Rule 10 CPC states that it is not necessary for the court to decree the suit just because defendant does not contest. In this background, in my opinion the reasons assigned by the first appellate court that there was no need for Chowdamma to prove the fraud again in the suit is acceptable. The approach of the trial court in this regard is not correct.
30. Chowdamma's suit is for declaration of her title, cancellation of the partition deed and for possession. The learned counsel for the appellant has argued vehemently that the partition deed dated 01.09.1999 is an independent document. Nagendra, in his suit O.S.339/1999, claimed that he was the adopted : 38 : son. In the suit field by Chowdamma, there is no assertive pleading by Nagendra that he is the adopted son of Chowdamma. Nothing prevented Nagendra from assertively pleading that he is the adopted son of Chowdamma. The withdrawal of suit O.S.339/1999 would not have come in his way to plead that he is the adopted son. But, he has denied the plaint averments that he is not the adopted son of Chowdamma. This prelude has become necessary to answer the second substantial question of law.
31. One can seek partition only if one has pre existing right in the property to be divided. That's why in a partition suit relationship between the parties is an important aspect. If the plaintiff fails to establish his relationship with defendants, suit for partition has to be dismissed. Relationship may arise out of consanguinity or adoption. Some times purchaser : 39 : of an undivided interest in a joint family property can file a suit for general partition. In this background, if the contention of Nagendra that the partition deed dated 01.09.1999 stands independently of the compromise, has to be accepted, it is necessary that he has to prove that he is the adopted son of Chowdamma. The proof with regard to adoption must be beyond suspicious circumstances. If there is an adoption deed, it must be produced or if the adoption takes place in accordance with customary rites and rituals, they must be proved. The reason for requirement for such a strict proof is spelt out by Supreme Court in the case of Rahasa Pandiani (dead) by LRs.) and others Vs. Gokulananda Panda and others. (AIR 1987 Supreme Court
962). In para 4 of the said judgment, it is observed as below.
4. Bef ore we advert to the relevant circums tances we cons ider it appropriate to advert to a no te of caution sounde d by this Court as e arly as in 1958 in Kis hori Lal V. : 40 : Ms t. Chal tibai, 1959 Suppl (1) SCR 698 : (AIR 1959 SC 504). We can do no be tte r than to quo te the re lev ant passage f rom the Judg ment of Kapur, J. (at p.508 of AIR) :-
"As an adoption results in chang ing the course of succession, depriv ing wives and daugh ters of the ir righ ts and transf erring properties to co mparative s trangers or more re mo te re latio ns it is necessary that the ev idence to support it should be such that it is f ree f rom all suspicio n of f raud and so cons is te nt and probable as to leave no occas io n f or doubting its truth. Failure to produce accoun ts, in circums tances such as have been proved in the present cas e, wo uld be a very sus picio us circums tance. The impor tance of accounts was e mphas is ed by the Priv y Council in Soo trugun v. Sabitra, (1834 (2) Knapp 287); in Diwakar Rao v. Chandanlal Rao, (AIR 1916 PC 81); in Kis horilal v. Chunilal, (1908 (36) Ind App (9); in Musamath LaI Kun war v. Chiranji Lal, (1909 (37) Ind App (1) and in Padamlal v. Fakira Debya, ( AIR 1931 PC 84)."
When the plain tif f relies on oral ev ide nce in support of the claim that he was adopted by the adop tive f ather in accordance with the H indu rites, and it is no t suppor ted by any regis tered docume nt to es tablish that such an adop tion had re ally and as a matte r of f act : 41 : taken place, the Court has to ac t with a great deal of cau tio n and circumspe ctio n. Be it realized that se ttin g up a spurious adoption is no t less f requent than concoc ting a spurious will, and equally, if no t more diff icult to unmas k. And the Court has to be ex tre me ly alert and v ig ilan t to guard ag ains t be ing ensnared by sche mers who indulge in unscrupulous practices out of the ir lus t f or property. If the re are any s uspicious circums tances, jus t as the propounder of the will is obliged to dispe l the cloud of suspicion, the burden is on one who claims to have been adop ted to dispe l the same beyond re asonable doubt. In the case of an adop tion wh ich is no t supported by a reg is tered docume nt or any o ther ev idence of a clinching nature if there ex is t suspicious circums tances, the same mus t be explained to the s atisf action of the conscie nce of the Court by the Parity contending that there was such an adop tion. Such is the pos ition as an ado ption would divert the normal and natural course of success ion. Experience of lif e sho ws that jus t as there have be en spurious claims abou t executio n of a will , there have been spurious claims about adop tion hav ing take n place. And the Court has theref ore to be aware of the ris k invo lved in upholding the claim of adoption if there are circums tances which arouse the suspicio n of the Court and the conscience of : 42 : the Court is no t satisf ied that the evidence pref erred to support such an adoption is beyond repro ach.
32. The present case has to be examined in the light of the above principle. Firstly, Nagendra got his suit, where he had pleaded about adoption, dismissed. Secondly, in his written statement filed in the present suit, he has not specifically pleaded about adoption though there was no bar to take up that plea. The learned counsel for the appellant, while arguing tried to draw certain inferences about adoption from the evidence given by Chowdamma-PW.2. According to him, PW.2 disowned many questions put to her saying that she could not remember and therefore from these answers it was writ large that intentionally she refrained from giving answers. He also referred to the evidence of DW.2 to argue that there was adoption. He also referred to Ex.D.4, the partition deed dated 01.09.1999 where Nagendra is shown as adopted son of : 43 : Chowdamma. This argument cannot be accepted because Nagendra did not plead assertively about adoption in the written statement filed by him. Mere denial of the plaint averments does not amount to taking specific pleading. Moreover it is an undisputed fact that, he himself withdrew the suit O.S 339/1999 where he claimed partition on the basis of adoption. If it is mentioned in Ex.D.4 that Nagendra is the adopted son of Chowdamma, it cannot be given any importance, because this document has been sought to be cancelled. Added to this, as pointed out by learned counsel for Chowdamma, Nagendra himself gave the name of his genetic father, Malleshappa, when he adduced oral evidence as PW.1 in MC.46/2001 on 08.11.2001. If Nagendra had been adopted by Chowdamma, he should have given the name of Chowdamma's husband. So these are the suspicious circumstances found in the case of Nagendra. The learned trial judge probably, might not to have raised an issue with regard to : 44 : adoption because of want of pleadings in the written statement. The very fact that Nagendra married Chowdamma's sister's daughter, he cannot claim to be adopted son of Chowdamma as such an adoption comes under the prohibited relationship. He also cannot claim to be illotom- son-in-law of Chowdamma because of his marriage was with Chowdamma sister's daughter. By virtue of this position if he has got any right, it can be only in the property belonging to the family of Chowdamma's sister. Therefore, the first appellate Court has rightly held that Nagendra has no right to claim partition.
33. In the light of the above facts and circumstances, it has to be stated that, the partition deed dated 01.09.1999 is not an independent document. It acquires legal sanctity only if the relationship between them is established. Mere registration of the partition : 45 : deed does not confer on Nagendra a right over the suit property.
34. LIMITATION :- The learned counsel for Nagendra argued that question of limitation can be raised at any time. He has referred to a judgment of the Supreme Court in the case of Smt.Dilboo (supra). It is not as though the trial Court and the First Appellate Court have not decided the question of limitation; they have given divergent findings on this issue, the trial Court holding that suit is time barred by applying Articles 56, 58 and 59 of the Limitation Act and the First Appellate Court coming to conclusion that suit is not time barred in the back ground of collateral proceedings initiated by both Chowdamma and Nagendra. Therefore, limitation, in the facts and circumstances of the case also gives rise to a substantial question of law.
: 46 :
35. Whenever two or more reliefs are sought in a suit, the effective relief decides the period of limitation for the suit. For instance, if a plaintiff seeks cancellation of a sale deed in respect of an immovable property executed by him in favour of defendant and possession of the same from him, the period of limitation is three years according to Article 59 of the Limitation Act. Here the effective or main relief is cancellation of the sale deed as it amounts to transfer within the meaning of Section 5 of the Transfer of Property Act. Although the sale deed is void or voidable against a person, if it is left outstanding, it may cause serious injury to the plaintiff, and therefore, he has to get it adjudged void or voidable and the Court has to cancel the instrument in such a situation. Unless it is cancelled the plaintiff gets no right to seek possession. Therefore, in a multifarious suit, the limitation issue has to be decided with reference : 47 : to the effective main relief. But, in the present case, the situation is slightly different.
36. Analisation of facts shows that the title of Chowdamma is not disputable. Mere existence of registered partition deed dated 1/09/1999 cannot eclipse the title of Chowdamma as said Nagendra is in no way entitled to claim partition as discussed already. Partition does not amount to transfer of property as in the case of a sale. It is only adjustment of rights between the share holders. Therefore, it was not at all necessary for Chowdamma to have claimed the relief of declaration of her title and cancellation of partition deed. Only relief that she is entitled to is possession of the suit property from Nagendra. Just for the reason that the relief of declaration of title and cancellation of partition deed are sought, it cannot be said that the suit should have been filed within three years from 1/9/1999, in accordance with Articles 58 and 59 : 48 : of the Limitation Act. Here the period of limitation applicable is 12 years from the date of dispossession according Article 65 of the Limitation Act. It is not the case of Nagendra that he had perfected his title over the suit property by adverse possession by being in possession of suit property for more than 12 years. Therefore, the suit O.S.98/2005 filed by Chowdamma is not time barred.
37. Nagendra filed another suit for injunction against Chowdamma claiming to be in possession of the suit property on the basis of partition deed. Of course, he got into the possession of the suit property. The trial Court decreed the suit and the First Appellate Court reversed the judgment by dismissing it. The finding of the First Appellate Court that the injunction suit deserved dismissal is not erroneous. When Chowdamma's suit for possession is to be decreed, obviously the suit for : 49 : injunction should fail. There cannot be conflicting judgments in respect of the same property although Nagendra was in possession of the suit on the date of his suit. Since he must yield his possession to Chowdamma, injunction suit deserves dismissal.
38. The learned counsel for Nagendra argued that the partition deed can be treated as gift deed. Again this argument fails. One of the essential requirements of the gift is that the transfer of a property, either movable or immovable, must be made voluntarily and without consideration from the donor to the donee. In the facts and circumstances, which do not require to be stated again, the intention on the part of the Chowdamma to transfer property to Nagendra voluntarily is very impossible to be made out. When she alleged that Nagendra played fraud on her and that her contention was upheld by the Court by allowing M.C.42/2000, at no : 50 : stretch of imagination it can be said that Chowdamma had an intention to gift the suit property to Nagendra.
39. In the appeal, R.S.A.5217/2008 filed by Chowdamma, she has questioned the judgment passed by the II Additional Civil Judge (Sr.Dn) confirming the order passed by the II Addl. Civil Judge (Jr.Dn), dismissing the application filed by her under Section 144 of C.P.C. Since the discussion on substantial question of law No.2 shows that Nagendra is not entitled to seek partition and that he has to handover the suit property to Chowdamma, the appeal filed by Chowdamma does not survive for consideration.
40. Therefore, from the forgoing discussion, I arrive at a conclusion that all the three appeals have to be dismissed and accordingly, the following:-
: 51 :
ORDER R.S.A 5030/2010 and R.S.A 5031/2010 are dismissed with cost by confirming the judgment of the First Appellate Court. The judgment of the First Appellate Court in R.A.Nos.81/2008 and 85/2008 is confirmed. RSA 5217 /2008 is dismissed as it does not survive for consideration. There is no order as to cost in this appeal.
Sd/-
JUDGE EM