Karnataka High Court
Nageshappa vs Subbarayappa on 17 December, 2021
Bench: S Vishwajith Shetty
RSA.2471/2006
C/W RSA.CROB.2/2011
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
R.S.A.No.2471/2006
C/W
R.S.A.CROB.NO.2/2011
IN RSA.2471/2006
BETWEEN:
1. NAGESHAPPA
S/O K.N.MUDDAPPA,
AGE: 50 YEARS.
2. MANJUNATHA
S/O MUDAPPA
AGED: 40 YEARS
3. CHIKKAMMA
W/O LATE K. N. MUDDAPPA, (DEAD)
4. LAKSHMIDEVAMMA
W/O NAGARAJAPPA,
DEAD BY L.RS.
A. K.N.SUMALATHA,
AGE: 22 YEARS.
B. SUJATHA
AGE: 20 YEARS.
C. MADHUSUDHANA
AGE:14 YEARS.
LRS 4(A) TO (C) ARE DAUGHTERS
AND SON OF LAKSHMIDEVAMMA,
LR 4(C) IS MINOR R/B N/G (4A)
5. THIMMAKKA
D/O K.N.MUDDAPPA,
RSA.2471/2006
C/W RSA.CROB.2/2011
2
W/O LATE MUTHRAYAPPA (DEAD),
R/O ANUDI, HOSUR HOBLI,
GOURIBIDANUR TALUK,
KOLAR DISTRICT.
6. LAKSHMAMMA
D/O LATE NAGAPPA,
(DIED),
W/O NAGAPPA,
APPELLANTS 1 TO 4 AND 6 ARE
RESIDNETS OF KODIGENAHALLI,
MADHUGIRI TQ., TUMAKURU DIST. ... APPELLANTS
(BY SRI PATEL D. KAREGOWDA, ADV.;
APPELLANTS-3, 5, 6 ARE DECEASED AND
APPELLENTS- 1 & 2 ARE
LRS OF APPELLANT NO.4)
AND:
1. SUBBARAYAPPA
DIED ON 8-9-06,
BY LRS WIFE,
SANJEEVAMMA
ALSO DIED.
BOTH DEAD.
MEMO FILED TO TREAT R2, LRS OF
3 TO 5 AS LRS OF R1. MEMO ALLOWED
V.C.O. DATED: 19.02.2021.
2. RAMAPPA
S/O LATE SUBBANNA,
60 YEARS.
3. SIDDAPPA
S/O LATE SUBBANNA,
AGE: 55 YEARS,
DEAD BY LRS V.C.O. DATED 26.02.19.
A. SMT. MUDDAMMA
W/O LATE SIDDAPPA,
AGE: 55 YEARS.
B. SHIVAPPA
S/O LATE SIDDAPPA,
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AGE: 35 YEARS.
C. NAGABHUSHANA
S/O LATE SIDDAPPA,
AGED: 32 YEARS.
D. SMT. GANGARATHNAMMA
W/O THIMMAIAH,
D/O LATE SIDDAPPA,
AGE: 22 YEARS,
R/O SUDDEGUNTE,
KODIGENAHALLI TOWN,
MADHUGIRI TALUK.
E. K.S.MAMATHA
W/O NAGARAJU,
D/O LATE SIDDAPPA,
AGE: 26 YEARS,
R/O D.HALLI, HOBLI & POST,
MADHUGIRI TALUK,
TUMAKURU DISTRICT.
4. CHIKKASIDDAPPA
S/O LATE SUBBANNA,
AGE: 52 YEARS,
SINCE DEAD BY LRS -
V.C.O. DATED 18.11.16.
A. SMT. NARASAMMA
W/O CHIKKASIDDAPPA,
AGE: 50 YEARS.
B. SHIVAKUMAR
S/O CHIKKASIDDAPPA,
AGE: 28 YEARS.
C. RAVIKUMAR
S/O LATE CHIKKASIDDAPPA,
AGED: 26 YEARS.
5. NAGAPPA
S/O LATE SUBBANNA,
SINCE DEAD BY LRS -
V.C.O. DATED 25.05.2021
A. GOWRAMMA
W/O NAGAPPA,
AGE: 45 YEARS.
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B. MANJUNATH
S/O LATE NAGAPPA,
AGE: 30 YEARS.
C. HARISH
S/O LATE NAGAPPA,
AGE: 25 YEARS.
RESPONDENTS 2, 3(A) TO (E), 4(A) TO (C)
AND 5(A) TO (C) ARE
R/O KODIGEHALLY VILLAGE,
MADHUGIRI TALUK,
TUMAKURU DISTRICT. ... RESPONDENTS
(BY SRI SAGAR B.B., ADV. FOR R5(A),
V/O DTD:30.07.2019;
R2, R3 (A TO E), R4 (A TO C) ARE SERVED,
V/O DTD:19.02.2021;
R2 TO R5 ARE LRS OF DECED R1;
V/O DTD: 17.11.2020 APPEAL AGAINST R5 IS
DISMISSED AS ABATED;
R5(B), R5(C)-SERVED)
IN RSA CROB.2/2011
BETWEEN:
1. SMT. SANJEEVAMMA
W/O LATE SUBBARAYAPPA,
AGED ABOUT 48 YEARS.
2. SRI RAMAPPA
S/O LATE SUBBANNA,
AGED ABOUT 60 YEARS.
3. SRI SIDDAPPA
S/O LATE SUBBANNA,
AGED ABOUT 55 YEARS,
DEAD BY HIS LRS.
3(A). SMT. MUDDAMMA
W/O LATE SIDDAPPA,
AGED ABOUT 55 YEARS.
3(B). SRI SHIVAPPA
S/O LATE SIDDAPPA,
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AGED ABOUT 35 YEARS.
3(C). SRI NAGABHUSHANA
S/O LATE SIDDAPPA,
AGED ABOUT 32 YEARS.
ALL ARE R/AT. KODIGENAHALLI TOWN POST
AND HOBLI,
MADHUGIRI TALUK,
TUMKUR DISTRICT.
3(D). SMT. GANGARATHNAMMA
W/O THIMMAIAH,
D/O LATE SIDDAPPA,
AGED ABOUT 22 YEARS,
R/O SUDDEGUNTE,
KODIGENAHALLI TOWN POST
AND HOBLI,
MADHUGIRI TALUK,
TUMKUR DISTRICT.
3(E). SMT. K.S.MAMATHA
W/O NAGARAJU,
D/O LATE SIDDAPPA,
AGED ABOUT 26 YEARS,
R/O D.HALLI HOBLI & POST,
MADHUGIRI TALUK,
TUMAKURU DISTRICT.
4. SRI CHIKKASIDDAPPA
S/O LATE SUBBANNA,
AGED ABOUT 52 YEARS,
DEAD BY HIS LRS
4(A). SMT. NARASAMMA
W/O CHIKKASIDDAPPA,
AGED ABOUT 50 YEARS.
4(B). SRI SHIVAKUMAR
S/O CHIKKASIDDAPPA,
AGED ABOUT 28 YEARS.
4(C). SRI RAVIKUMAR
S/O LATE CHIKKASIDDAPPA,
AGED ABOUT 26 YEARS.
4(A) TO 4(C) ARE AGRICULTURISTS
R/O KODIGENAHALLI VILLAGE,
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C/W RSA.CROB.2/2011
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MADHUGIRI TALUK,
TUMKUR DISTRICT - 572131.
5. SRI NAGAPPA
S/O LATE SUBBANNA,
AGED ABOUT 50 YEARS,
NOS.1 TO 5 ARE
AGRICULTURISTS,
R/O KODIGENAHALLI VILLAGE,
MADHUGIRI TALUK,
TUMKUR DISTRICT-572131. .. CROSS OBJECTORS
(BY SRI SAGAR B.B., ADV. FOR
SRI SATHISH M.DODDAMANI, ADV.)
AND:
1. SRI NAGESHAPPA
S/O K.N.MUDDAPPA,
AGED ABOUT 53 YEARS.
2. SRI MANJUNATHA
S/O LATE K.N.MUDAPPA
AGED ABOUT 43 YEARS
3. SMT. CHIKKAMMA
W/O LATE K. N. MUDDAPPA,
AGED ABOUT 78 YEARS
4. SMT. LAKSHMIDEVAMMA
W/O LATE NAGARAJAPPA,
AGED ABOUT 53 YEARS,
DEAD BY LRS
4(A). K.N.SUMALATHA,
D/O LATE NAGARAJAPPA,
AGED ABOUT 25 YEARS.
4(B). SUJATHA
D/O LATE NAGARAJAPPA,
AGED ABOUT 23 YEARS.
4(C). MADHUSUDHANA
S/O LATE NAGARAJAPPA,
AGED ABOUT 17 YEARS,
MINOR REPRESENTED BY
GUARDIAN.
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C/W RSA.CROB.2/2011
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i.e. RES. 4(A) K.N.SUMALATHA
D/O LATE NAGARAJAPPA,
AGED ABOUT 25 YEARS.
RESPONDENTS 1, 2, 3, 4(A), 4(B), 4(C)
ARE R/O KODIGENAHALLI,
MADHUGIRI TALUK,
TUMKUR DISTRICT - 572131.
5. SMT. THIMMAKKA
D/O LATE K.N.MUDDAPPA,
W/O MUTHRAYAPPA,
R/O ANUDI, HOSUR HOBLI,
GOURIBIDANUR TALUK,
CHIKKABALLAPUR DISTRICT.
6. SMT. LAKSHMAMMA
D/O LATE NAGAPPA
AGED ABOUT 40 YEARS,
RESPONDENTS 1 TO 4 AND 6 ARE
RESIDNETS OF KODIGENAHALLI,
MADHUGIRI TQ.,
TUMAKURU DIST. ... RESPONDENTS
(BY SRI PATEL D.KAREGOWDA, ADV. FOR R1, R2, R3,
R4(A-C), R5 AND R6)
REGULAR SECOND APPEAL NO.2471/2006 IS FILED
UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 29.05.2006 PASSED IN RA.NO.5/1997 ON
THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-
II, TUMKUR, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 19.2.1997 PASSED IN
OS.NO. 120/1979 ON THE FILE OF THE CIVIL JUDGE,
MADHUGIRI.
REGULAR SECOND APPEAL CROSS OBJECTION
NO.2/11 IS FILED UNDER ORDER 41 RULE 22 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 29.05.2006
PASSED IN RA.NO.5/1997 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-II, TUMKUR, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 19.02.1997 PASSED IN OS.NO. 120/1989 ON THE FILE
OF THE CIVIL JUDGE, MADHUGIRI.
RSA.2471/2006
C/W RSA.CROB.2/2011
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THIS REGULAR SECOND APPEAL AND CROSS-
OBJECTIONS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 23.11.2021 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Defendant Nos.1 to 6 have preferred
R.S.A.No.2471/2006 challenging the judgment and
decree dated 29th May 2006 passed by the court of
Fast Track-II, Tumkur, reversing the judgment and
decree dated 19th February 1997 passed by the court
of Civil Judge, Madhugiri, in O.S.No.120/1989 and
thereby partly decreeing the suit of the plaintiffs
declaring that the plaintiffs are entitled for partition
and separate possession of 1/4th share in the suit
schedule properties and also holding that the plaintiffs
are entitled for mesne profits from the date of suit till
they are put in possession of the same, while the
Cross Objections have been filed by the plaintiffs with
a prayer to modify the judgment and decree passed by
the first appellate court and grant half share in the
suit schedule properties.
RSA.2471/2006
C/W RSA.CROB.2/2011
2. For the sake of convenience, the parties to the
appeal are referred to as per their rankings given
before the trial court.
3. Brief facts of the case that would be relevant
for the purpose of disposal of the appeal and cross-
objections are:
The plaintiffs filed O.S.No.120/1989 before the
court of Civil Judge, Madhugiri (for brevity "the trial
court") against the defendants seeking the relief of
partition and separate possession of their half share in
the suit schedule properties.
4. It is the case of the plaintiffs that one
Doddamuddappa was the propositus of the family and
he had five sons viz., Nagappa, Bodappa, Subbanna,
Ramaiah and Siddappa. Amongst the five sons,
Bodappa and Ramaiah died issueless and Siddappa
died unmarried. Nagappa and Subbanna had
children. The plaintiffs are the sons of Subbanna and
the seventh defendant is the wife of Subbanna.
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C/W RSA.CROB.2/2011
Nagappa was married to Thimmakka and they had two
children from their wedlock i.e., a son by name
K.N.Muddappa and a daughter by name
Lakshmamma. K.N.Muddappa has expired and the 3rd
defendant is the wife of Muddappa and defendant
Nos.1, 2, 4 and 5 are his children. Defendant No.6 is
the daughter of Nagappa.
5. It is the case of the plaintiffs that the suit
schedule properties are ancestral joint family
properties of the plaintiffs and the defendants and the
khatha of the property stood in the name of Ramaiah
s/o Doddamuddappa. After the death of Ramaiah,
who died issueless, the khatha of the suit schedule
properties were changed in the name of Nagappa, who
was the eldest son of Doddamuddappa. Subsequent
to death of Nagappa, the khata in respect of the suit
schedule properties was changed in the name of his
son K.N.Muddappa, who is also no more. The
plaintiffs demanded their share in the suit schedule
property for which defendant Nos.1 to 6 did not agree
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and therefore, they have filed O.S.No.120/1989 before
the trial court.
6. After service of suit summons, defendant
Nos.1 to 6 had jointly entered appearance and filed a
written statement admitting the relationship between
the parties. But they denied that the suit schedule
properties are the ancestral joint family properties of
the plaintiffs and defendants. It was contended by
defendant Nos.1 to 6 that Bodappa had died earlier to
1936 and thereafterwards the remaining four brothers
viz., Nagappa, Subbanna, Ramaiah and Siddappa had
mortgaged the suit schedule item Nos.1 to 4 properties
and Sy.No.63 in favour of one Vangol Adisheshaiah
Setty under a registered mortgage deed dated
16.07.1936. During the subsistence of the said
mortgaged deed, on 26.05.1940, a settlement deed was
executed between the four brothers and in the said
deed, Subbanna, the father of the plaintiffs released
his share of the properties, which were the subject
matter of the mortgage, in favour of his other three
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brothers on the ground that he was not in a position
to clear the debt. The property bearing Sy.No.63 was
left to the share of Ramaiah in lieu of his marriage
properties remained with other three brothers viz.,
Nagappa, Siddappa and Ramaiah. The said three
brothers jointly purchased item No.6 property under a
registered sale deed dated 05.08.1947 in the name of
Ramaiah. Subsequently Siddappa and Ramaiah died
and they were issueless. Therefore, Nagappa alone
became the sole owner of item Nos.1 to 4 and 6 of the
suit said properties. After the death of Nagappa, his
son K.N.Muddappa succeeded to the said properties.
The house in suit item No.5 property is constructed by
the third defendant, who is the widow of
K.N.Muddappa, out of her own funds and she is the
exclusive owner of the said property. It was further
contended by defendant Nos.1 to 6 that they are in
actual possession and enjoyment of all the suit
schedule properties openly and notoriously hostile to
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the interest of the plaintiffs and defendant No.7 ever
since the date of release deed and thereby they have
perfected their title over the lands by adverse
possession. It was also contended by them that the
suit is barred by limitation and accordingly they
prayed to dismiss the suit.
7. The plaintiffs had filed rejoinder denying the
execution of the release deed by their father late
Subbanna and the exclusive possession of the suit
schedule properties by defendant Nos.1 to 6.
8. On the basis of the rival pleadings, the trial
court had initially framed nine issues and
subsequently framed an additional issue, which are as
follows:
"1. Whether plaintiffs prove that the
suit schedule properties are ancestral joint
family properties of the parties?
2. Whether defendants 1 to 6 prove
that Subbanna, the father of plaintiffs
released from the joint family?
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C/W RSA.CROB.2/2011
3. Whether defendants 1 to 6 prove
that Sy.No.63 was left to the share of
Siddaiah or his marriage expenses?
4. Whether the defendants further
prove that Nagappa, Ramaiah and
Siddappa only constituted a joint family?
5. Whether they further prove that item
No.6 is their self acquisition?
6. Whether the 3rd defendant proves
that the item No.5 of the suit properties
exclusively belongs to her?
7. Whether the plaintiffs are entitled to
the half share in all the suit schedule
properties?
8. Whether plaintiffs are entitled to the
further mesne profits?
9. To what decree or order?"
Additional Issue:
"Whether defendants 1 to 6 have
perfected their title by adverse possession?"
9. During the course of trial, the plaintiffs
examined five witnesses as PWs-1 to 5 and got marked
three documents, which were exhibited as Exs.P1 to
P3. On behalf of the defendants, five witnesses were
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examined as DWs-1 to 5 and marked 83 documents,
which were exhibited as Exs.D1 to D83.
10. After completing the recording of evidence,
the trial court heard the arguments addressed on both
sides and after appreciating the oral and documentary
evidence available on record, by its judgment and
decree dated 19.02.1997 dismissed the suit of the
plaintiffs with costs. Being aggrieved by the same, the
plaintiffs had filed R.A.No.5/1997 before the court of
Fast Track-II, Tumkur. The first appellate court after
hearing the arguments addressed on behalf of the
parties had framed the following points for
consideration:
"i) Whether the finding recorded by the
Trial Court on additional issue that the
defendants.1 to 6 have perfected their title
by adverse possession in respect of suit
properties 1 to 4 is not correct and proper?
ii) Whether the finding given by the Trial
Court that suit item.5 the self-acquired
property of the 3rd defendant is not correct
and proper?
iii) Whether the finding given by the Trial
Court that the plaintiffs are not entitled to
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half share in the suit properties is not
correct and proper?
iv) Whether the judgment and decree of
the Trial Court call for interference?
v) What decree or order?"
11. The first appellate court on a re-appreciation
of the oral and documentary material evidence
available on record has allowed the appeal setting
aside the judgment and decree passed by the trial
court and decreed the suit of the plaintiffs declaring
that the plaintiffs are entitled for partition and
separate possession of 1/4th share in the suit schedule
properties and also for mesne profits from the date of
suit till they are put in possession of their share in the
suit schedule property.
12. Being aggrieved by the same, defendant
Nos.1 to 6 have filed R.S.A.No.2471/2006 while the
plaintiffs have filed Cross Objection No.2/2011 for
enhancement of their share and decreeing the suit as
prayed for by them.
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C/W RSA.CROB.2/2011
13. This court had admitted the regular second
appeal on 25.07.2008 to consider the following
substantial question of law:
"Whether in the facts and circumstances of
the case, the appellate court was justified in
reversing the judgment and decree passed by
the trial court and granting 1/4th share in the
suit schedule properties to the respondents
ignoring Ex.D2?"
14. Heard the learned counsel appearing for the
defendants as well as the learned counsel appearing
for the plaintiffs and also perused the material
evidence available on record.
15. Learned counsel appearing for the
defendants submitted that the first appellate court has
completely misread Ex.D2/release deed and thereby
erred in decreeing the suit of the plaintiffs. He
submitted that the defendants have inherited the
entire suit schedule properties including the share of
the undivided brother of Nagappa i.e., grandfather of
the defendants. He submitted that Subbanna had
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executed the release deed in the year 1940 and
therefore, he had no share in the suit schedule
property and only the remaining three brothers, who
are party to the release deed, are the absolute owners
of the said property. He submitted that after the death
of Ramaiah and Siddappa, Nagappa alone became the
owner of the suit schedule item Nos.1 to 4 properties
and after the death of Nagappa, defendant Nos.1 to 6
being his legal heirs had succeeded to his property.
16. Per contra, learned counsel appearing for the
plaintiff submitted that even if it is presumed that
Subbanna had executed a release deed in favour of the
other brothers of his, the plaintiffs, who are his
children, are entitled for a share in the property of
their paternal uncles Ramaiah and Siddappa. After
the death of Ramaiah and Siddappa, the plaintiffs
have inherited to the properties of Ramaiah and
Siddappa along with Nagappa and his heirs. This
aspect of the matter was completely overlooked by the
trail court and the first appellate court on re-
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appreciation of the oral and documentary evidence
available on record has rightly decreed the suit. He
submits that release deed by Subbanna is not proved
by defendants. Ex.D2 is a unregistered document,
therefore, not admissible in law. He submits that the
first appellate court ought to have held that the
plaintiffs are entitled for half share in the suit
schedule property instead of 1/4th share and the
challenge to the judgment and decree passed by the
first appellate court in his cross-objections was only to
the limited extent. Therefore, he prays to dismiss the
regular second appeal and to allow the cross
objections.
17. The relationship between the parties to the
proceedings is not in dispute. It is also not in dispute
that suit item No.1 to 4 were the joint family properties
of the children of Doddamuddappa viz., Nagappa,
Bodappa, Subbanna, Ramaiah and Siddappa. So far
as item No.5 of the property is concerned, defendant
No.3 has claimed that it is his exclusive property and
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she has constructed a house in the said property. The
material on record would go to show that the revenue
records of the said land originally stood in the name of
Ramaiah and after his death in the name of his son
Nagappa and after the death of Nagappa, it was
changed in the name of his son K.N.Muddappa and
after the death of K.N.Muddappa, the revenue entries
were changed in the name of third defendant, who is
the wife of K.N.Muddappa. Though there is material
available on record to show that the third defendant
had obtained licence for construction of a house in the
said property, there is absolutely nothing on record to
show that item No.5 property was purchased by the
third defendant and thereafterwards the house was
constructed. It is not the case of the defendants that
there was a partition between Nagappa and his
brothers and the item No.5 of the suit schedule
property was allotted to his share. Therefore, item
No.5 property is required to be considered as a joint
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family property, since there is admittedly no partition
between the sons of Doddamuddappa.
18. So far as item No.6 of the suit schedule
property is concerned, the said property was
purchased by Ramaiah and admittedly, there was no
partition in respect of the joint family property, which
were left behind by Doddamuddappa as on the date
when the item No.6 property was purchased by
Ramaiah. There is no material on record to show that
Ramaiah had income of his own and therefore, it has
to be presumed that the item No.6 property was
purchased by Ramaiah out of the income from the suit
item Nos.1 to 4 properties, which were left behind by
Doddamuddappa. Ramaiah has admittedly died
intestate and he had no children. Since the suit item
No.6 schedule property is held to be purchased by
Ramaiah by utilizing the income from item Nos.1 to 4
properties, item No.6 property is also required to be
considered as a joint family property. Even if it is
presumed that item No.6 property is Ramaiah's self-
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acquired property, admittedly, Ramaiah has died
intestate and he had no issues. Therefore, after his
death, his property naturally devolves to his next legal
heirs who are the plaintiffs and defendants.
19. There is no dispute that after the death of
Doddamuddappa, his four sons viz., Nagappa,
Subbanna, Ramaiah and Siddappa had succeeded to
the joint family properties viz., item Nos.1 to 4 of the
suit schedule properties.
20. It is the case of the defendants that after the
death of Doddamuddappa, the four brothers had
executed a registered mortgage deed in favour of one
Vangol Adisheshaiah Setty on 16.07.1936 and item
Nos.1 to 4 properties were mortgaged under the said
deed for a sum of Rs.500/-. It is their further case
that since Subbanna, who is the father of plaintiffs,
did not have means to clear the debt and mortgaged
the property, he had executed an unregistered release
deed dated 26.05.1940 in favour of his other brothers,
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relinquishing his rights in item Nos.1 to 4 properties.
It is on the basis of this document, the defendants
contend that the plaintiffs are not entitled for any
share in the property because their father had
relinquished his rights in the joint family properties
left behind by Doddamuddappa. The mortgage deed
has been produced by defendants and marked as
Ex.D1. There is no serious dispute with regard to
execution of this document. From a reading of this
document, it is very clear that Nagappa, Kenchigappa
and Ramaiah had executed this deed in favour of
Vangol Adisheshaiah Setty. It is the case of the
defendants that Subbanna was also known as
Kenchigappa. The courts below after appreciating the
oral and documentary evidence available on record
have recorded a concurrent finding that Subbanna
was also known as Kenchigappa. Even if it is
presumed that the mortgage deed as per Ex.D1 is said
to have been proved, the question that requires
consideration would be whether under the alleged
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relinquishment deed dated 26.05.1940/Ex.D2,
Subbanna @ Kenchigappa had released his rights in
respect of the suit item Nos.1 to 4 properties in favour
of his other three brothers. Admittedly, Ex.D2 is an
unregistered document. As per Section 17 of the
Registration Act, 1908, Ex.D2 is a compulsory
registrable document. Therefore, Ex.D2/release deed
is hit by Section 49 of the Registration Act and the
same is not an admissible document nor can it be
relied upon to prove the case of the defendants that
Subbanna had released his rights under the alleged
release deed Ex.D2 dated 26.05.1940 in favour of his
brothers. Further, defendant Nos.1 to 6, who have
relied upon the release deed Ex.D2, have not produced
the entire document and on the other hand, only a
portion of the said document is produced. Under the
circumstances, no reliance can be placed on the said
document and it cannot be held that Subbanna has
relinquished his rights in item Nos.1 to 4 of the suit
schedule properties in favour of his three brothers.
RSA.2471/2006
C/W RSA.CROB.2/2011
Admittedly, Doddamuddappa had five sons viz.,
Nagappa, Bodappa, Subbanna, Ramaiah and
Siddappa. Bodappa had died earlier to 1936. After
his death, his four brothers had succeeded to the
property of Doddamuddappa. Bodappa and Ramaiah
had died issueless and Siddappa died unmarried.
Therefore, the share of deceased brothers viz.,
Bodappa, Ramaiah and Siddappa had devolved on
their surviving brothers viz., Subbanna and Nagappa.
The plaintiffs are the sons of Subbanna and the 7th
defendant is the wife of Subbanna. Therefore, the
plaintiffs and 7th defendant are together entitled for
half share in the suit schedule property while the
defendants, who are the legal heirs of Nagappa, are
together entitled for the remaining half share in the
suit schedule property.
21. The first appellate court having properly
appreciated the facts and circumstances of the case
was, therefore, justified in reversing the judgment and
decree passed by the trial court ignoring Ex.D2.
RSA.2471/2006
C/W RSA.CROB.2/2011
However, the first appellate court has erred in granting
only 1/4th share in the suit schedule property in
favour of the plaintiffs whereas it ought to have
granted half share in the suit schedule property in
favour of plaintiffs. Therefore, the substantial
question of law is required to be answered partially in
the affirmative.
22. Under the circumstances, the appeal filed by
the defendants is liable to be dismissed and the cross-
objections filed by the plaintiffs is required to be
allowed. Accordingly, the following order:
R.S.A.No.2471/2006 is dismissed. R.S.A.Cross
Objection No.2/2011 is allowed. The judgment and
decree dated 19th February 1997 passed by the court
of Civil Judge, Madhugiri, in O.S.No.120/1989 and the
judgment and decree dated 29th May 2006 passed by
the court of Fast Track-II, Tumkur, are hereby set
aside.
The suit of the plaintiff is decreed declaring that
the plaintiffs are entitled for partition and separate
RSA.2471/2006
C/W RSA.CROB.2/2011
possession of half share in the suit schedule
properties and they are also entitled for mesne profits
from the date of suit till they are put in possession of
the same.
In view of disposal of R.S.A.No.2471/2006, the
pending I.A. filed in the said appeal does not survive
for consideration. Hence, it stands disposed of.
Sd/-
JUDGE
KNM/-
