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Karnataka High Court

Sri Narasimhegowda vs Smt Puttalakshmamma on 24 May, 2023

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                                                          RSA No. 1247 of 2008




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU                   R
                           DATED THIS THE 24TH DAY OF MAY, 2023

                                               BEFORE
                    THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                          REGULAR SECOND APPEAL NO. 1247 OF 2008


                   Between:

                   1. Sri Narasimhegowda
                      S/o. Singrigowda
                      Major

                   2. Sri Ugregowda
                      S/o. Singrigowda
                      Major

                   3. Smt. Lakshmidevamma
                      W/o. Ugregowda
                      Major

                      All are R/o. Kotagahalli Village,
Digitally signed
by SRIDEVI S          Santhebachahally Hobli
Location: HIGH        K.R Pet Taluk,
COURT OF              Mandya District-571401.
KARNATAKA                                                          ...Appellants
                   (By Sri K.N.Nithish, Advocate for
                       Sri K.V.Narasimhan, Advocate)

                   And:

                   1. Smt. Puttalakshmamma
                      W/o. Venkategowda
                      Major
                               -2-
                                        RSA No. 1247 of 2008




2. Smt. Sannananjamma
   W/o. Late Cheluvegowda
   Major
   R/o. Kotagahalli Village
   Santhebachahalli Hobli
   K.R.Pet Taluk, Mandya District.

3. Smt. Singamma
   W/o. Buddanna @ Muddegowda
   Major
   R/o. Goravi Village
   Krishnarajpet Taluk,
   Mandya District.

4. Smt. Lakshmamma
   W/o. Venkategowda
   Major
   R/o. Kotagahalli Village
   Santhebachahalli Village
   K.R.Pet Taluk, Mandya District.

5. Smt. Manjula
   W/o. Chikkegowda
   Major
   R/o. Sharahalli Village,
   Koratikere Post,
   K.R.Pet Taluk, Mandya District.
                                                ...Respondents
(By Sri Arun G., Advocate for R1 - absent;
 R2, R3, R4 and R5 - served, unrepresented)

      This RSA is filed under section 100 of CPC, against the
judgment    and    decree    dated   25.01.2008    passed    in
R.A.No.12/2006 on the file of the Civil Judge (Sr.Dn.) and
JMFC., Krishna Raja Pete, dismissing the appeal and confirming
the judgment and decree dated 12.06.2003 passed in
O.S.No.241/1995 on the file of the Civil Judge (Jr.Dn.) and
JMFC., K.R.Pet.
      This RSA having been heard and reserved on
31.03.2023 coming on for pronouncement this day, the
court pronounced the following:
                               -3-
                                            RSA No. 1247 of 2008




                           JUDGMENT

This second appeal is filed by defendants 2, 3 and 4 in a suit for partition which was decreed by the trial court holding that the plaintiff was entitled to 5/12 share in suit properties. The said judgment being challenged in an appeal preferred in the court of Senior Civil Judge resulted in its dismissal and hence this second appeal.

2. The substance of the pleadings is this: Chaluve Gowda, Narasimha Gowda and Ugre Gowda were the sons, and Singamma, Lakshamma and Narasamma were the daughters of Singre Gowda. Chaluve Gowda was the son born to the first wife of Singri Gowda and the rest to his second wife. Plaintiff is the daughter of Chaluve Gowda, and she averred that since all the suit properties were ancestral joint family properties, she had more than 1/8 share in them; and when she demanded for her share, defendants 2 and 3 not only denied her share but also treated her cruelly. The third defendant obtained mutation of revenue records of land in survey No.37 of -4- RSA No. 1247 of 2008 Dugganahalli in favour of his wife i.e., the fourth defendant and it was to be cancelled. With these allegations she claimed the reliefs of partition and cancellation of mutation of revenue records made in the name of 4th defendant.

3. The third and fourth defendants admitted the relationship as stated by the plaintiff, but denied plaintiff's right to claim partition on the premise that in the year 1948 itself the plaintiff's father separated from the joint family by relinquishing his right over suit properties having received a sum of Rs.350/- and 21 guntas of wet land situate at Dugganahalli. They also stated that after the death of Chaluve gowda, his widow i.e., the first defendant, who is also the mother of the plaintiff sold 21 guntas of land to her father-in-law by executing a registered sale deed; and the plaintiff being aware of all these transactions was not entitled to claim partition in the suit properties.

RSA No. 1247 of 2008

4. The trial court recorded the findings that the contesting defendants failed to prove both the transactions of release and sale as contended by them in as much as Ex.D.1 and Ex.D.2 were the certified copies of the release deed and the sale deed, and since the plaintiff in her evidence denied those transactions, by mere production of certified copies, it was not possible to hold that the release and the sale were proved. The 3rd defendant who adduced evidence as DW.1 ought to have examined the attestors to or the scribes of Ex.D.1 and Ex.D.2 and if they were not available due to their death, anybody acquainted with transactions should have been examined by DW.1 and in the absence of evidence to this effect, the specific defence put forward by third and fourth defendant would fail. The trial court also held that no presumption under section 90 of the Evidence Act could be drawn in regard to Ex.D.1 and Ex.D.2, the certified copies, as they appeared to have been obtained from the office of Sub-Registrar some time back before DW.1 adduced evidence, and therefore they -6- RSA No. 1247 of 2008 were not 30 year old documents. These were the main reasons for decreeing the suit in favour of the plaintiffs.

5. The first appellate court also confirmed the findings of the trial court. Regarding limitation affecting the suit, the first appellate court held that the defendants had not contended about it in the written statement.

6. On 23.9.2010, this second appeal was admitted to examine the following two substantial questions of law.

"1. Whether the appellants were in a position to rely upon Exhibits D1 and D2 produced as secondary evidence, in support of the contention that there was a release deed by a co-parcener namely, Cheluvegowda, the father of the plaintiff and the sale deed Exhibit D2, which was executed in respect of such property, which was received as his share under the release deed?

2. Whether the share determined as 5/12th was in accordance with law?"

7. I heard the argument of Sri. Nitin, learned counsel for the appellants on 17.3.2023. Learned counsel for respondents was absent on that day, and to provide him an opportunity to argue, the case was adjourned to 31.3.2023 on which day also he was absent.

8. It was the argument of Sri. Nitin that both the courts below grossly erred in applying law to the proved facts. Elaborating on this point, he agued that DW.1 clearly stated in his examination-in-chief that the originals of the release deed and the sale deed had been lost and therefore he produced their certified copies which were marked Ex.D.1 and D.2. DW.1 laid foundation for production of secondary evidence and moreover the plaintiff did not object to marking of certified copies; even DW.1 was not cross-examined in any manner on Ex.D.1 and Ex.D.2. The courts below wrongly held that transactions depicted in Ex.D.1 and Ex.D.2 could not be accepted because the plaintiff did not admit those transactions to have taken place. And the finding that the -8- RSA No. 1247 of 2008 attestors or some body acquainted with transaction should have been examined in proof of execution of the release deed and the sale deed was another erroneous finding in as much as they were registered transactions which did not require further proof. The release deed came into existence in the year 1948, in which year the plaintiff was not probably born according to her own answer in the cross-examination, and the sale deed was executed by the first defendant in the year 1953. But the suit was filed in 1995; question of limitation for the suit would definitely arise. The first appellate court's finding that there was no contention about limitation in the written statement was opposed to section 3 of the Limitation Act. He also referred to answers of PW.1 in the cross-examination and argued that she just gave evasive answers to avoid Ex.D.1 and Ex.D.2 to be binding on her, and considering the manner of her answers, both the courts should have discarded her case and dismissed the suit. Therefore his conclusion was that the second appeal would deserve to -9- RSA No. 1247 of 2008 be allowed, and the judgments of the courts below, reversed.

9. The analysis of law applicable to the facts pleaded and the evidence brought on record is that of the nine issues raised by the trial court, the issues deciding the suit are no.5 and 6, for the contesting defendants 3 and 4 having taken up a plea about the release deed and the sale deed were obligated to prove them. The relationship as stated by the plaintiff is not denied by the defendants. The plaintiff is the daughter of Chaluve Gowda, who was a member of Hindu Joint family possessing ancestral properties, and if no partition of the ancestral joint family properties had taken place, obviously, the plaintiff would get a share in the property which had fallen to the share of her father. But the plaintiff's right to claim partition having been objected to by defendants 3 and 4 by pleading about the release deed executed by Chaluve Gowda in the year of 1948, and a sale deed executed by the first defendant in the year of 1953, burden of proving

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these transactions was on defendants 3 and 4 in view of section 102 of the Evidence Act for, if they failed, the plaintiff would get her share in natural course of succession. Therefore issues 5 and 6 were the deciding issues, but, the courts below have gone wrong in applying law to the proof placed by DW.1 i.e., the third defendant on his behalf as also defendant no.4.

10. Of course, the two witnesses, PW.1, the plaintiff herself, and PW.2 an independent witness, deny any such transaction of release or sale as has been pleaded by defendants 3 and 4. Ex.D.1 is the certified copy of the release deed executed by Cheluve Gowda. Ex.D2 is the certified copy of the sale deed executed by the first defendant after the death of her husband in favour of her father-in-law in respect of 21 guntas of land situate at Dugganahalli. DW.1 stated in his examination-in-chief that he had lost originals of the release deed and the sale deed, and therefore he produced their certified copies as per Ex.D.1 and Ex.D.2. Two aspects are to be noted here.

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Firstly when Ex.D.1 and Ex.D.2 were produced, the plaintiff's counsel did not object to their marking. When DW.1 was cross-examined, except giving a general suggestion that the release deed was a created one, that transaction was not assailed in any other way. If really the release deed was a created one, DW.1 should have been questioned elaborately on that point. Then there is no cross-examination on Ex.D.2 at all. If the answers of PW.1 and PW.2 in the cross-examination are seen, they actually do not deny the release and the sale; they have given evasive answers which only indicate that they are aware of those transactions, but purposefully show ignorance of those transactions perhaps to suit their convenience. It is apt to observe here that though the courts below appear to have not appreciated the evidence properly, since this is a second appeal, without embarking on re-appreciation of evidence, it can be said that Ex.D.1 and Ex.D.2 should have been accepted by the trial court as also the first appellate court.

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11. Section 65(c) of the Evidence Act states that secondary evidence of a destroyed or lost document can be produced. Here DW.1 stated that he could not produce the originals because he had lost them. Regarding reason ascribed by DW.1 for production of certified copies, he was not cross-examined, and Ex.D1 and Ex.D2 were marked without any objection. DW.1 laid foundation for producing the certified copies. Akin to a situation like this, the judgment of the Supreme Court in the case of Marwari Kumhar and others Vs. Bhagawanpuri Guru Ganeshpuri and others [MANU/SC/0501/2000], has held as below:

"10. Thus it is to be seen that under sub- clause (c) of Section 65, where the original has been lost or destroyed, then secondary evidence of the contents of the document is admissible. Sub-clause (c) is independent of sub-clause (f)-Secondary evidence can be led, even of a public document, if the conditions as laid down under sub-clause (c) are fulfilled. Thus if the original of the public document has been lost or destroyed then the secondary

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evidence can be given even of a public document. This is the law as has been laid down by this Court in Mst. Bibi Aisha and Others v. The Bihar Subai Sunni Majlis Avaqaf and Others, reported in AIR (1969) Supreme Court 253. In this case a suit had been filed for setting aside a registered mokarrari lease deed and for restoration of possession of properties. The suit had been filed on behalf of a Waqf. The Original Waqf Deed was lost and an ordinary copy of the Waqf Deed was produced in evidence. The question was whether an ordinary copy was admissible in evidence and whether or not secondary evidence could be led of a public document. The Court held that under section 65 clauses (a) and (c) secondary evidence was admissible. It is held that a case may fall both under clauses (a) or (c) and (f) in which case secondary evidence would be admissible. It was held that clauses (a) and (c) were independent of clause (f) and even an ordinary copy would, therefore, be admissible. As stated above the case that the original was no longer available in Court records and the certified copy was lost has not been disbelieved. Thus the ordinary copy of the

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earlier judgment was admissible in evidence and had been correctly marked as an exhibit by the trial court."

12. It is a fact that Ex.D.1 and D.2 are certified copies, and since they appear to have been obtained recently before DW.1 adduced evidence, presumption under section 90 cannot be drawn, but the transaction depicted in Ex.D.1 and D.2 which are not otherwise assailed cannot be disbelieved. Thus looked these two documents ought to have been acted upon by the courts below.

13. Then the next question is whether DW.1 was required to examine the attestors of the release deed and the sale deed or anybody acquainted with transactions. The trial court and the appellate court lost sight of fact that the release and the sale were registered transactions. Proviso to section 68 of the Evidence Act clearly states that a document, other than a will which has been registered in accordance with the provisions of the Indian

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Registration Act need not be proved by examining an attesting witness unless the execution of a document is specifically denied by its executor. Sale deed and release deed do not require attestation, the evidence on record shows that plaintiff stated nothing about invalidity of the release deed and the sale deed in the plaint, and when she was questioned in the cross-examination, she denied them generally and some of her answers are very evasive. Very importantly, the first defendant, the actual executor of sale deed i.e., Ex.D.2 did not deny its execution. As has been stated by PW.1 in the cross-examination, she is not aware whether she was born in the year 1948 or not. There is no specific denial of the transactions. Specific denial takes a meaning that denial must be supported by valid reasons; general denial is no denial at all. Here the court below has simply accepted the denials by the plaintiff who is not the executor of the deeds. These findings cannot therefore be sustained. Ex.D.1 indicates that the plaintiff's father executed a release deed by receiving Rs.350/- and 21 guntas of land, Ex.D.2 shows

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that the first defendant, after the death of her husband, sold 21 guntas of land to her father-in-law on her behalf and on behalf of the plaintiff. But the plaintiff did not challenge the sale deed within three years of attaining majority. Thus the plaintiff lost her right to claim partition in the suit properties.

14. About the question of limitation for the suit, though a substantial question had not been framed, yet it has to be said that the finding of the first appellate court is opposed to section 3 of the Limitation Act. This section clearly states that whether or not plea of limitation is set up, if the court finds that suit is time barred, it has to be dismissed. Here the release deed came into existence in the year 1948, and the sale deed in the year 1953. The trial court could have suo moto examined the aspect of limitation, and that point was raised before the appellate court, it should have been examined.

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In conclusion, the second appeal succeeds. The judgment of the trial court in O.S.No.241/1995 and the Appellate Court in RA.No.12/2006 are set aside. Suit is dismissed with costs.

Sd/-

JUDGE SD List No.: 1 Sl No.: 1