Karnataka High Court
Mary W/O Anil Mascarenhas vs John Bernard Mascarenhas on 5 March, 2020
Bench: P.B.Bajanthri, Nataraj Rangaswamy
IN THE HIGH COURT OF KARNATAKA
®
DHARWAD BENCH
DATED THIS THE 05TH DAY OF MARCH, 2020
PRESENT
THE HON'BLE MR. JUSTICE P.B. BAJANTHRI
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
REGULAR FIRST APPEAL No.100151 OF 2014 (PAR)
BETWEEN:
MARY
W/O ANIL MASCARENHAS
AGED ABOUT 41 YEARS,
R/AT "BLISS" HOSPET ROAD,
SIRSI-583401.
.... APPELLANT
(BY SMT. VIDYA IYER, ADVOCATE)
AND:
JOHN BERNARD MASCARENHAS
BUSINESS,
R/AT BLISS,
HOSPET ROAD,
SIRSI-583 401.
1. CELESTINE
W/O JOHN MASCARENHAS,
2
AGED ABOUT 71 YEARS,
R/AT "BLISS" HOSPET ROAD,
SIRSI-583401.
2. ANITHA
W/O MELWYN CUTINHA,
AGED ABOUT 45 YEARS,
HOUSEHOLD,
R/AT "BLISS" HOSPET ROAD,
SIRSI-583401.
3. ARUN JOHN MASCARENHAS
AGED ABOUT 39 YEARS,
OCC: BUSINESS,
R/AT "BLISS" HOSPET ROAD,
SIRSI-583401.
.... RESPONDENTS
(BY SRIYUTHS A.P.HEGDE AND SURESH S. BHAT,
ADVOCATE FOR RESPONDENT NOS.1 TO 3)
THIS APPEAL IS FILED UNDER ORDER XLI RULE 1
READ WITH SECTION 96 OF THE CIVIL PROCEDURE
CODE, 1908, AGAINST THE JUDGMENT AND DECREE
DATED: 06.06.2014 PASSED IN O.S. No.16/2011 ON THE
FILE OF THE SENIOR CIVIL JUDGE, SIRSI, DECREEING
THE SUIT FILED FOR CANCELLATION OF REGISTERED
PARTITION DEED AND FOR CONSEQUENTIAL RELIEF OF
PERMANENT PROHIBITORY INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 18.12.2019 AND COMING ON FOR
PRONOUNCEMENT THIS DAY NATARAJ RANGASWAMY J.,
DELIVERED THE FOLLOWING:
3
JUDGMENT
This Regular First Appeal is filed by the defendant No.1 in the suit challenging the Judgment and Decree dated 06.06.2014 passed by the Senior Civil Judge, Sirsi, in O.S. No.16/2011.
2. In this Judgment, the parties shall be referred to as they were arrayed before the Trial Court. This appeal is filed by the defendant No.1. The plaintiff seems to have expired after the Trial Court passed the impugned Judgment and Decree. Though the deceased plaintiff is shown in the cause title in this appeal, the right to sue has enured to the benefit of respondent Nos.1, 2 and 3 in this appeal, who were defendant Nos.2, 3 and 4 before the Trial Court.
3. The suit filed in O.S. No.16/2011 reveals that the plaintiff therein was the full and absolute owner of the suit properties, he having derived them in terms of a compromise decree in O.S. No.120/1989. The plaintiff claimed that his eldest son, Anil 4 Mascarenhas, was addicted to alcohol and in the year 2008, he started demanding and pressurizing the plaintiff to transfer some of his properties to his name. The plaintiff was reluctant as his eldest son was a drunkard and useless. Thereafter, the plaintiff and his wife decided to perform his marriage so that he would reform and stop drinking. They had fixed the marriage of their son with the defendant No.1, who hailed from Murudeshwar. After the marriage was fixed, their son demanded that some portion of the suit properties be transferred to his name and threatened not to marry if the property was not transferred. It is stated that by this, the prestige and reputation of the plaintiff in the society was threatened. Therefore, the plaintiff had no other option but to yield to the demand of his son and save his pride. The plaintiff contended that his son arranged for the documentation and the plaintiff, defendant Nos.2 to 4 were made to execute a document styled as "partition deed" on 26.09.2008. It is thus 5 claimed that the partition deed was not executed by the plaintiff with free consent, but was under duress. It is also alleged by the plaintiff that his son was beating the plaintiff. It is stated that the partition deed dated 26.09.2008 was not the outcome of free consent. Further, the plaintiff contended that due to limitless intake of alcohol, his son developed liver cirrhosis which led to his death. The defendant No.1 is his widow. It is stated that the partition deed dated 26.09.2008 is void and does not bind the right, title and interest of the plaintiff in the suit properties. The plaintiff, therefore, filed the present suit for cancellation of the partition deed dated 26.09.2008 and for perpetual injunction restraining the defendant No.1 from interfering with the exclusive possession of the plaintiff in the suit properties.
4. The defendant No.1 filed her written statement refuting the plaint averments and contended 6 that she was not aware that her husband was an alcoholic before her marriage. She stated that her husband was a retailer of two wheeler and automobile spares and that he was earning sufficiently well. She contended that after her husband was diagnosed with liver cirrhosis, he had disclosed to his parents that he was not interested to marry and injure the life of another girl. However, it was the plaintiff who offered to transfer certain properties that will remain as security in the event of any harm to the life of the defendant No.1 and therefore, he voluntarily executed the partition deed dated 26.09.2008. She contended that she was living with her husband and after the partition deed was executed, the property was partitioned and the revenue entries were made out in the name of her husband. She stated that her husband was collecting the rent from the portion of the property that fell to his share. She also contended that the suit for declaration is not sufficient and the plaintiff ought to have sought for 7 possession as under the partition deed, the possession of the properties that fell to her husband's share was given to him and that the consequent revenue entries also disclose that the properties were handed over to the possession of the husband of the defendant No.1.
5. Based on the aforesaid contentions, the Trial Court framed the following Issues:
"1. Whether the plaintiff proves due to pressure given by his son by name Anil partition was taken place on 26.9.2008, but no right was accrued on the said document by deceased Anil hence it is void and not extinguished the plaintiff's right the suit property?
2. Whether plaintiff proves that neither his deceased son Anil nor children of him had any pre-existing right over the suit property?
3. Whether plaintiff proves that the defendant No.1 being the wife of deceased Anil though he was not residing with him during his life time because of his bad habits now she tried 8 to gulp down the property after the death of her husband Anil?
4. Whether defendant No.1 proves that suit property has been succeeded by her since it had fallen to the share of her husband now she is enjoying the same in accordance with law?
5. Whether plaintiff is entitled for the relief as prayed?
6. What Order or Decree?"
6. Before the Trial Court, the defendant No.4 being the son of the plaintiff was examined as PW.1 based on a power of attorney executed by the plaintiff. Exs.P1 to P7 were marked for the plaintiff while the defendant No.1 was examined as DW.1 and she marked Exs.D1 to D28.
7. The Trial Court noticed the contentions raised and decreed the suit and declared that the partition deed dated 26.09.2008 is fraudulent and not executed with a free mind. To arrive at such a 9 conclusion, the Trial Court relied upon the alcoholism of the husband of the defendant No.1 and assumed that the plaintiff came under duress to execute the partition deed dated 26.09.2008. The Trial Court highly relied upon the judgment of this Court in the case of Aralappa vs. Jagannath and others reported in AIR 2007 Karnataka page No.91, wherein a learned Single Judge of this Court held that amongst Christians, the children during the life time of their father, do not possess any pre-existing right in the property in the hands of the father. Therefore, the question of conveying title to his sons in the property by way of registered partition deed would not arise. The learned Single Judge held that a partition of an estate is not a transfer of property but recognition of a pre-existing right.
8. The Trial Court held that since the partition deed dated 26.09.2008 did not confer any title to the 10 defendant No.1, the plaintiff is deemed to be in possession. The Trial Court, therefore, decreed the suit and declared that the partition deed dated 26.09.2008 was obtained under duress and consequently, granted perpetual injunction restraining the defendant No.1 from interfering with the possession of the plaintiff in the suit properties.
9. Feeling aggrieved by the aforesaid Judgment and Decree, the defendant No.1 has filed the present Regular First Appeal.
10. We have heard the learned counsel for the defendant No.1 - appellant, learned counsel for defendant Nos.2 to 4 - respondent Nos.1 to 3. The records were secured from the Trial Court and we have perused the plaint, the written statement, the oral and documentary evidence as well as the Judgment and Decree of the Trial Court.
11
11. The following points arise for our consideration in this appeal:
1. Whether the plaintiff has proved that the partition deed dated 26.09.2008 (Ex.P5) was executed under duress or threat ?
2. Whether the suit filed by the plaintiff for declaration and perpetual injunction was maintainable in the face of Ex.P5 ?
3. Whether the partition deed dated 26.09.2008 was legal and valid and was enforceable in a Court of law ?
12. Our answers to the points formulated by us are as follows:
Point No.1: The common thread that runs through the case of the plaintiff as is evident from the plaint averments is that the eldest son of the plaintiff was an alcoholic and in order to salvage him out, the plaintiff and his wife decided to get him married and fixed the marriage of their son with the defendant No.1.12
The contention of the plaintiff was that after the marriage was fixed, his son claimed that he would not marry until certain properties were transferred to his name. The plaintiff, allegedly succumbed to such pressure and executed the partition deed dated 26.09.2008 so as to save his face in the society. It is stated that after the death of his son, the defendant No.1 came to the house of the plaintiff and claimed her ownership over the suit properties and threatened to get her name entered in the CTS records of the suit properties and enter into possession and dispossess the plaintiff and his family from the suit properties.
13. The defendant No.1 on the other hand, disputed this contention of the plaintiff and contended that her husband did not want to marry in view of his debilitating health due to alcoholism and therefore, had refused to marry. In order to convince the husband of the defendant No.1 to marry, the plaintiff offered to 13 transfer certain properties to his name so that in case if something happened to his son, the properties would go to his wife. It is contended that the husband of the defendant No.1 was beneficially employed and was also earning sufficiently well and therefore, there was no need for him to harass the plaintiff for money to meet his drinking habits.
14. Curiously, the plaintiff did not enter the witness box to prove his contention. On the contrary, the defendant No.4 being the youngest son of the plaintiff entered the witness box and deposed based on a power of attorney ( Ex.P1). It is found from Ex.P1 that the reason for executing the power of attorney by the plaintiff in favour of the defendant No.4 was "since he was not in best of health". Neither the plaintiff nor the defendant No.4 placed on record any material fact to show that the health of the plaintiff was so deteriorated that he could not come to the witness box and depose 14 about the facts pleaded by him before the Court. Consequently, we are unable to resist the invariable adverse inference that has to be drawn against the plaintiff that the case as pleaded by the plaintiff is doubtful.
15. The Apex Court in the judgment rendered in the case of Vidhyadhar v. Manikrao and another reported in (1999) 3 SCC 573, has reiterated the following well-recognised legal position:
"17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct...."
Whenever a defense such as force / threat / undue influence is set up to rescind a contract, the person who has come under such threat / undue influence is the best person who has to speak about it and he alone has 15 to labour and shore up all the facts before the Court to prove his defense. The defendant No.4, as a power of attorney could not take upon himself the arduous task of proving the state of mind of the plaintiff when he executed the partition deed dated 26.09.2008. Therefore, the allegation of threat / undue influence / coercion in the execution of the partition deed dated 26.09.2008 is an afterthought.
16. The Apex Court had elaborately considered the role of a power of attorney in proving a fact in the Judgment rendered in the case of MAN KAUR (DEAD) BY LRs. vs. HARTAR SINGH SANGHA reported in (2010) 10 SCC 512, wherein it is held as under:
"18. The aforesaid judgment was quoted with approval in Ram Prasad v. Hari Naraian (AIR 1998 Raj 185). It was held that the word 'acts' used in Rule 2 of Order 3 CPC does not include the act of power-of-attorney holder to appear as a witness on behalf of a party. Power- of-attorney holder of a party can appear only as a 16 witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recoding his evidence may be issued under the relevant provisions of CPC.
21. We hold that the view taken by the Rajasthan High Court in Shambhu Dutt Shastri v. State of Rajasthan ((1986) 2 WLN 713 (Raj)) followed and reiterated in Ram Prasad v. Hari Narain, AIR 1998 Raj 185 is the correct view."
As a matter of fact, circumstances galore in the case which points to the fact that the defendant No.4 is the puppeteer orchestrating the show by portraying the plaintiff as a victim of circumstances and in the process keep the defendant No.1 at bay so as to usurp the suit properties. We therefore do not approve, the conduct of the plaintiff in not testifying before the Court and we hold that the plaintiff's case cannot be believed. 17
17. Even if we gloss over the above, a perusal of the documents placed on record would show that Ex.P2 is the extract of property register card in respect of the property bearing No.198/1A1. Ex.P3 is another extract of the property register card in respect of Sy. No.198/1C while Ex.P4 is the extract of the property register card in respect of property No.198/1B. Ex.P5 is the partition deed dated 26.09.2008 while Ex.P6 is the death certificate of the husband of the defendant No.1 (which shows that he died on 01.03.2011). Ex.P7 is the ration card of the plaintiff.
18. Except the afore stated documents, there are no documents placed on record in proof of the plaint averment that the plaintiff came under pressure from his son to execute Ex.P5. However, Ex.D1 which is the discharge card issued by Nalwad Multi-speciality Hospital and Research Centre discloses that the husband of the defendant No.1 was suffering from 18 chronic alcohol abuse and liver cirrhosis as on 12.01.2011. Ex.D2 is another discharge card dated 17.01.2011 issued in respect of the husband of the defendant No.1. Ex.D3 is the pass book of the deceased husband of the defendant No.1 issued by Bank of Baroda and this discloses that as on 28.09.2010, the deceased had a sum of Rs.52,500/- to his credit. Ex.D4 discloses that it is a savings bank pass book issued by Corporation Bank and as on 01.10.2007, the deceased had a sum of Rs.40,037-90 and as on 16.10.2007, he had a sum of Rs.1,037-90 to his credit. Ex.D5 was the passport of the deceased. The deceased was registered with Permanent Account Number with Income Tax. He held a driving licence and also a voters Identity card. The name of the defendant No.1 was entered in the Diocese of Karwar as per Ex.D10. It is also found that the deceased was a member of The Sirsi Urban Sahakari Bank Limited which is evident from Ex.D12, which is a notice of the general body meeting. 19 Ex.D13 is a vehicle receipt issued by Bellad Automobile Private Limited on 17.04.2010. Ex.D14 is a tax invoice in respect of a vehicle purchased by the deceased husband of defendant No.1. Ex.D15 is yet another tax invoice. Ex.D16 is the copy of Form-2 / property tax details list for the year 2009-10 in respect of the properties that fell to the share of the husband of defendant No.1. Ex.D17 is Form-2 / property tax details list for the year 2010-11. EXs.D18 and D19 are copies of tax paid receipts. Ex.D20 is the order dated 09.09.2010 for transfer of khata in respect of building No.709 (180/3) passed by Revenue Officer, City Municipal Council, Sirsi, pursuant to the partition deed in favour of the husband of defendant No.1. Ex.D21 is the experience certificate issued by Ave Mariya High School, which discloses that the defendant No.1 was working from 08.06.2009 till 31.03.2010 in the said School as an Assistant Teacher. Ex.D22 is an order of temporary injunction dated 25.11.2010 passed by the 20 Trial Court in O.S. No.266/2010 against the plaintiff and defendant Nos.2 and 4 in the present suit and Anil
- husband of defendant No.1 in the present suit. Ex.D23 is a licence agreement entered into between K.S. Hegde and the husband of defendant No.1. Ex.D24 is yet another licence executed by K.S. Hegde in favour of the husband of defendant No.1. Ex.D25 is the insurance of the motor vehicle purchased by the deceased. Ex.D26 is a 11 month rent agreement (dated 01.02.2010) entered into by the deceased with one Wasim Chand so as to run a service station in property bearing C.T. Survey No.198-1C. Ex.D27 is the receipt issued by ING Life Insurance which shows that the life of defendant No.1 was insured at the instance of the husband of defendant No.1.
19. What is evident from the documentary evidence is the fact that the deceased husband of the defendant No.1 was a chronic alcoholic and that his 21 alcoholism led to his death. There cannot be any dispute about this fact. But it is clear from the documents placed on record that the deceased husband of the defendant No.1 was running an automobile service center and that he had been in the trade of purchase of vehicles and service of vehicles which is evident from the licence agreements and the lease agreements entered into with the aforementioned persons. The deceased husband of defendant No.1 also held a passport and a Permanent Account Number with the Income Tax department. Therefore, the contention of the plaintiff that his son was pestering the plaintiff for money for his drinking habits seems far-fetched and unbelievable. The further contention that the plaintiff had arranged the marriage of his son with defendant No.1 and that after the marriage was fixed, he refused to marry resulting in shame to the plaintiff is not substantiated by any documentary evidence. 22
20. We now weigh the oral evidence to see whether the plaintiff / defendant No.4 has proved any circumstance to show that the contention urged in the plaint were real. PW.1 in his evidence stated as follows:
"DzÀgÉ §eÁeï ¸À«ð¸ï ¸ÉAlgï JA§ ¸ÀA¸ÉÜAiÀÄÄ 1£Éà ¥ÀæwªÁ¢AiÀÄ UÀAqÀ£À ºÉ¸Àj£À°è 1986 jAzÀ 2000 E¹é vÀ£ÀPÀ £ÉÆÃAzÀt DVvÉÛAzÀÄ £Á£ÀÄ ¸ÀévÀB ºÉüÀÄvÉÛãÉ. ¸À¢æ ¸ÀA¸ÉÜUÉ ¸ÀA§AzÀs¥l À Ö ªÀåªÀºÁgÀUÀ¼É®èªÇÀ 1£Éà ¥ÀæwªÁ¢AiÀÄ UÀAqÀ£À ºÉ¸Àj£À°è £ÀqÉAiÀÄÄwÛvÛÉAzÀÄ ¤ÃªÀÅ ¸ÀÆa¸ÀĪÀÅzÀÄ ¸ÀļÀÄî. ¸À¢æ ¸ÀA¸ÉÜUÉ ¸ÀA§AzÀs¥l À Ö zÁR¯ÁwUÀ¼É®èªÀÇ £ÀªÄÀ ä §½ EªÉ. ¸À¢æ ¸ÀA¸ÉÜAiÀÄÄ 1986 jAzÀ 2000 E¹é vÀ£ÀPÀ ¸À¢æ ¸ÀA¸ÉÜ C¹ÛvÀézÀ°èzÁÝUÀ CgÀÄuï DmÉÆêÉƨÉʯïì JA§ ¸ÀA¸ÉÉÜAiÀÄ£ÀÄß £ÀqɸÀÄwÛzÝÉ . ¸À¢æ ¸ÀA¸ÉÜAiÀÄ£ÀÄß £Á£ÀÄ 1995 £Éà E¹é¬ÄAzÀ®Æ £ÀqɸÄÀ vÁÛ §A¢gÀÄvÉÛãÉ. £À£ÀVÃUÀ 38 ªÀµÀð ªÀAiÀĹìgÀÄvÀÛzÉ. £Á£ÀÄ C«ªÁ»vÀ. £À£ßÀ CtÚ C¤¯ï ªÀÄzÀÄªÉ PÁ®PÉÌ DvÀ¤UÉ 39 ªÀµÀð ªÀAiÀĸÁìVvÀÄÛ. £À£ßÀ CtÚ C¤¯ï §zÀÄQzÀÝ PÁ®PÉÌ DvÀ ¥Á¸ï¥ÉÇÃmïð ºÉÆA¢zÀÝ. vÀ£Àß GzÉÆåÃUÀ ¤«ÄvÀÛ ºÁUÀÆ £ÀªÄÀ ä ¸ÀA§A¢üPÀgÀ£ÀÄß £ÉÆÃrPÉÆAqÀÄ §gÀ®Ä DvÀ ºÀ®ªÁgÀÄ ¨Áj «zÉò ¥ÀæªÁ¸À PÉÊUÉÆArzÀÝ£ÉAzÀgÉ, DvÀ £ËPÀj ¤«ÄvÀÛ «zÉñÀUÀ½UÉ ºÉÆÃVzÀÝ£ÉAzÀÄ £Á£ÀÄ ¸ÀévÀB ºÉüÀÄvÉÛãÉ. £À£ßÀ CtÚ C¤¯ï 23 ªÉÆzÀ®Ä ªÀĸÀÌvï, £ÀAvÀgÀ EyAiÉÆæAiÀiÁ zÉñÀzÀ°è £ËPÀj ªÀiÁrzÀÝ. ¸À¢æ zÉñÀUÀ¼À°è £ÀªÄÀ ä ¸ÀA§A¢üPÀgÁgÀÆ EgÀĪÀÅ¢®è."
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21. Therefore, we do not find anything incriminating so as to impugn the partition deed dated 26.09.2008.
22. Under the circumstances, the finding of the Trial Court that merely because the husband of the defendant No.1 was an alcoholic and just because he died due to liver cirrhosis, it cannot be deduced that the partition deed dated 26.09.2008 was obtained under compelling circumstances and that the plaintiff was under duress to execute such a partition deed.
23. It is also relevant to note that the partition deed is dated 26.09.2008 while the defendant no.1 was given in marriage to the eldest son of the plaintiff on 27.12.2008 and the husband of the defendant No.1 died on 01.03.2011. For nearly three years after the 26 marriage, and during the lifetime of his eldest son, the plaintiff did not opt to call in question the partition deed. Long thereafter, the present suit is filed which generates strong suspicion about the bona fides of the suit. Therefore, we answer point No.1 formulated by us against the plaintiff and hold that the plaintiff is unable to prove the contention that the partition deed dated 26.09.2008 was brought under duress or threat.
24. In so far as the second point raised by us is concerned, Section 34 of the Specific Relief Act, 1963 reads as follows:
"34. Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where 27 the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee."
25. In the case on hand, the partition deed was executed on 26.09.2008 and as per Ex.D20 dated 09.09.2010, the revenue documents of building No.709 180/3 was transferred to the name of the deceased husband of the defendant No.1 and he had paid the property tax in respect of his share of properties. It is in the evidence of PW.1 that the husband of defendant No.1 was collecting rent from the tenants in respect of the properties that fell to his share. Therefore, it is clear that subsequent to the partition deed dated 26.09.2008, the husband of the defendant No.1 took over possession of the properties that fell to his share under the said partition deed and he was collecting the rents. Ex.P5 stands testimony to the fact that possession of the 28 properties in question was handed over to the husband of the defendant No.1. Therefore, it is clear from the documentary evidence that the plaintiff had handed over possession of the properties that fell to the share of the husband of defendant No.1. It is, therefore, imperative that the plaintiff must have sought for possession of the suit properties as well. Though the plaintiff claimed that he was in exclusive possession of the suit properties but he failed to place on record any material document to disclose that notwithstanding the execution of the partition deed dated 26.09.2008, he was in exclusive possession of the properties. Therefore, the plaint averment that the plaintiff was in exclusive possession of the suit properties is diametrically opposite to the documentary evidence available on record. Thus, the Trial Court could not have held that the plaintiff was in possession of the suit properties and that therefore, there was no requirement to seek possession of the suit property. It was not 29 prophetical for the Trial Court to assume a state of things when the documents spoke otherwise. It was incumbent upon the Trial Court to have held that the suit for declaration and injunction without seeking for possession was not maintainable. Hence, we answer point (ii) against the plaintiff and the plaintiff ought to have sought for possession of the suit properties.
26. Coming to the third point that is formulated by us, it is no doubt true that amongst Christians, there is no concept of joint family. It is also no doubt true that during the life time of the father, the lineal descendants of the father do not have any pre-existing right. The Trial Court seemed to have been swayed by the judgment of a learned Single Judge of this Court in the case of Aralappa v. Jagannath reported in AIR 2007 Karnataka 91. The Learned Single Judge held that a partition does not confer or create title. If the party to a partition has an antecedent title to the 30 property, it only enables him to obtain what is his own in a definite and specific form. The learned Judge held "In the partition, no one transfers title which he possesses in favour of a person who does not possess the title". What has to be seen is that the present case is not a case of partition simplicitor, but it is a case of settlement. A reading of the plaint would disclose that there existed a dispute between the plaintiff and the husband of the defendant No.1 over the marriage of the defendant No.1. The defense of the defendant No.1 would disclose that the husband of the defendant No.1 was not interested to marry owing to his falling health due to bad habits and it was the plaintiff who compelled his son to enter into wedlock and assured him that a share of the property would be given to him which would take care of his dependents in the event of untimely death. Therefore, in essence, the partition deed, Ex.P5, is more of a settlement than a partition. The plaintiff being the owner of the suit properties is 31 entitled to settle his properties in favour of any person. In this regard, it is profitable to refer to the judgment of the Apex Court in the case of Kale and Others vs. Deputy Director Of Consolidation and Others reported in AIR 1976 Supreme Court 807, wherein it is held as under:
"9. Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise "Kerr on Fraud" at p. 364 makes the following pertinent 32 observations regarding the nature of the family arrangement which may be extracted thus:
"The principles which apply to the case of ordinary compromise between strangers, do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend."
The object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. To-day when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the 33 hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successions so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the 34 essentials of the family settlement and the principles governing the existence of the same are made:
"A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour.
The agreement may be implied from a long course. Of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied.
Family arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements".
10. In other words to put the binding effect and the essentials of a family settlement in a 35 concretised form, the matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangements may be even oral in which case no registration is necessary;
(4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall 36 within the mischief of Section 17(2)(sic) (Sec. 17 (1) (b)?) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."
27. Under the circumstances, we have no hesitation to hold that Ex.P5 was a document, which created interest in the husband of the defendant No.1 37 and upon the death of the husband of defendant No.1, the defendant No.1 has succeeded and therefore, this is a document which binds not only the plaintiff but also the other defendants and the defendant No.1 has succeeded to the suit properties as its absolute owner.
28. Yet another fact which stirred our conscience is that the plaintiff and the defendant No.2 who knew the condition of their son, cheated the defendant No.1 and this is found from the evidence of PW.1, who categorically stated that prior to the marriage, the plaintiff did not disclose the alcoholism of his son and his physical condition to the defendant No.1. If only the defendant No.1 was made aware of the condition of her beau, she would not have been in such a piquant situation as she is today. The defendant No.1 is stated to be working as a Teacher at Sirsi and after the death of her husband, she has moved on in life. Though this has not influenced us to hold against the 38 plaintiff, but yet, we cannot gloss over a substantial fraud committed by the plaintiff upon the defendant No.1.
In the circumstances, the appeal filed by the defendant No.1 succeeds and the impugned Judgment and Decree dated 06.06.2014 passed by the Court of Senior Civil Judge, Sirsi, in O.S. No.16/2011 is set aside and the suit filed by the plaintiff in O.S. No.16/2011 is hereby dismissed with costs.
Sd/-
JUDGE Sd/-
JUDGE sma