Citation : 2021 Latest Caselaw 2190 Kant
Judgement Date : 10 June, 2021
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JUNE 2021
PRESENT
THE HON'BLE MR.JUSTICE S.G.PANDIT
AND
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
REGULAR FIRST APPEAL NO.200008/2014
Between:
1. Sangmesh S/o Durgappa Bhajanthri
Age 35 Years, Occ: Private Service
R/o Opp. Shankarling Temple, Kumbargalli
Jorapur Peth, Bijapur - 586 101
2. Kumareshwar S/o Yellappa Bhajanthri @ Hunagund
Age 27 Years, Occ: Private Service
R/o Shankarling Temple, Kumbargalli
Jorapurpeth, Bijapur - 586 101
... Appellants
(By Sri Ameet Kumar Deshpande, Advocate)
And:
1. Smt. Renuka W/o Sharnappa Bajantri
@ Smt. Renuka D/o Durgappa Bajantri
Age 52 Years, Occ: Private Service
R/o J.M. Road, Behind Gachin Mahal
Bijapur - 586 101
2. Smt. Savitri W/o Mohan Kattimani
@ Savitri D/o Durgappa Bhajanthri
Age 38 Years, Occ: Private Service
2
R/o Opp. Shankarling Temple
Kumbar galli, Jorapurpet
Bijapur - 586 101
3. Kumari Laxmi D/o Durgappa Bajantri
Age 27 Years, Occ: Household
R/o Opp. Shankarling Temple, Kumbargalli
Jorapurpet, Bijapur - 586 101
4. Yallappa S/o Durgappa @ Hunagund
Age 45 Years, Occ: Police Department
R/o Reg.Q.No.114, Block No.9
Behind Masjid, Police Quarters
Bijapur - 586 101
5. Parashuram S/o Durgappa Bajantri
Age 41 Years, Occ: Education Department
R/o Opp. Shankarling Temple, Kumbargalli
Jorapurpet, Bijapur - 586 101
6. Smt. Yamuna W/o Yashwant Bajantri @
Smt. Yamuna D/o Durgappa Bajantri
Age 31 Years, Occ: Household Work
R/o Opp. Shankarling Temple, Kumbargalli
Jorapurpet, Bijapur - 586 101
... Respondents
(By Sri I.R. Biradar, Advocate
Sri G.G. Chagashetti, Advocate and
Sri S.S. Desai, Advocate for R1 to R3 & R6;
R4 and R5 served)
This Regular First Appeal is filed under Section 96 of
CPC, praying to allow the appeal and set aside the judgment
and decree dated 01.10.2012 passed in O.S.No.206/2011 by
I Additional Senior Civil Judge, Bijapur by dismissing the
suit and decreeing the counter claim of defendant Nos.3 and
4.
3
This appeal having been heard and reserved for
judgment on 03.06.2021, coming on for pronouncement of
Judgment this day, M.G.S.KAMAL, J., delivered the
following:-
JUDGMENT
This appeal under Section 96 of the Code of Civil
Procedure is filed by the appellants herein (defendant
Nos.3 and 4 before the trial Court) aggrieved by the
judgment and decree dated 01.10.2012 passed in
O.S.No.206/2011 by the I Additional Senior Civil Judge,
Bijapur, by which the suit for partition and separate
possession filed by respondent Nos.1 to 3 herein
(plaintiff Nos.1 to 3 before the trial Court) came to be
decreed and the counter claim of the appellants and
respondent No.5 herein (defendant Nos.1 to 4 before the
trial Court) was dismissed.
2. The parties hereinafter are referred by their
original ranks before the trial Court.
3. Facts leading up to filing of the present
appeal briefly stated are that, a suit in
O.S.No.206/2011 was filed for relief of partition and
separate possession in respect of;
(a) property bearing CTS No.769 ward No.1 measuring 92-80 square meters consisting of five rooms on the ground floor, five rooms on the first floor and two rooms on the second floor, situated at Athani Road, Opposite Shankarling Temple, Bijapur; and
(b) property bearing VPC No.913 being a house property having a main door towards east situated at Sudi village, Ron Taluk, Gadag District;
contending inter alia that the aforesaid properties
belonged to one Mr.Durgappa S/o Balappa Bajantri.
That the said Mr.Durgappa passed away intestate on
03.10.2011. His wife Mrs.Durgavva had predeceased
him on 15.11.2007. That plaintiff Nos.1 to 3 and
defendant No.5 are the daughters and defendant Nos.1
to 3 are the sons of aforesaid Mr.Durgappa and
Mrs.Durgavva. That upon the demise of said
Mr.Durgappa, plaintiffs and defendants succeeded to
the suit properties. That the said Mr.Durgappa had
died of blood cancer. He had neither effected any
partition of the suit properties nor had executed any
document in favour of any person. That the suit
properties are joint family properties and are in joint
possession of the plaintiffs and defendants. That after
the demise of said Mr.Durgappa, upon request made by
the plaintiffs for partition, defendant Nos.2 to 4 had
responded that they are the absolute owners of property
bearing CTS No.769 by virtue of a deed of
relinquishment dated 12.08.2011 executed in their
favour by Mr.Durgappa and that their names have been
entered in the revenue records. That except defendant
Nos.2 to 4, no one else had any right, title or interest in
the said property. The plaintiffs have asserted that the
said Mr.Durgappa was mentally not fit to execute any
document due to his serious ailment as such, the said
document was concocted and same has no legal
sanctity. That as there is no partition, the plaintiffs are
jointly entitled to their legitimate 3/7th share in the suit
properties.
4. Defendants appeared through their counsel.
Defendant Nos.3 and 4 filed written statement
contending inter alia that only property available for
partition was the house property bearing VPC No.913 of
Sudi village. That Mr.Durgappa who was serving in the
police department had purchased the property in CTS
No.769 under registered sale deed dated 04.12.1992.
Mr.Durgappa being the absolute owner in exclusive
possession of the said property had executed a
document styled as 'Relinquishment Deed' on
12.08.2011 conveying the entire property in CTS No.769
jointly in favour of defendant Nos.2 to 4 and had put
them in exclusive possession of the said property. Their
names have been entered into the revenue records and
since then, defendant Nos.2 to 4 have been in joint
possession and enjoyment of the said property even to
the knowledge of the plaintiffs. A counter claim was
sought on the grounds that plaintiff Nos.2 and 3 are in
permissive possession of the portion of the said property
and are required to be directed to vacate and hand over
the vacant possession of the portions to defendant
Nos.2 to 4.
5. Defendant No.5 filed her written statement
supporting the case of the plaintiffs and sought for
allotment of her 1/7th share in the suit properties.
6. Based on the above pleadings, the trial Court
framed the following issues:
1. Whether the plaintiffs prove that suit properties are joint family properties of parties concerned?
2. Whether plaintiffs are entitled for joint 3/7th share in the suit properties?
prove that item No.1 suit property CTS No.769 is exclusive property of them as mentioned in para-7 of written statement as contended?
4. Whether plaintiffs are entitled for reliefs sought?
5. What order or decree?
Additional Issue dated 31-08-2012:
Whether defendants prove that they are entitled for counter claim mentioned in written statement?
7. Plaintiff No.3 examined herself as P.W.1 and
got exhibited documents at Exs.P.1 to P.15. Defendant
No.5 examined herself as D.W.1 and no documents were
marked on her behalf. Defendant Nos.1 to 4 did not
lead any evidence.
8. The trial Court after considering the
pleadings, evidence and the arguments decreed the suit
holding that the suit properties were the joint family
properties and the plaintiffs were jointly entitled for
3/7th share and that defendant No.5 was entitled for
1/7th share in the suit schedule properties. The counter
claim of defendant Nos.2 to 4 was dismissed. Aggrieved
by the aforesaid judgment and decree, defendant Nos.3
and 4 are before this Court by way of this regular first
appeal.
9. The learned counsel for the appellants -
defendant Nos.3 and 4 submitted that no sufficient
opportunity was provided by the trial Court to the
appellants either for filing their written statement or to
lead their evidence. As such, the impugned judgment
and decree is illegal and is against the principles of
natural justice. He further submitted that though
additional issue was framed on 31.08.2012, no evidence
on the said additional issue has been recorded.
Instead, the trial Court heard the arguments of the
plaintiffs. Without even hearing the defendants, the
trial Court erroneously recorded that the arguments of
the defendants were heard. Thus, he submitted that the
matter requires to be remitted back to the trial Court for
fresh disposal.
On merits of the matter, the learned counsel for
the appellants - defendants submitted that the trial
Court grossly erred in holding that the relinquishment
deed dated 12.08.2011 at Ex.P.1 was inadmissible in
evidence for want of registration. He submitted that the
trial Court ought to have construed Ex.P.1 to be a
family arrangement as it was a document recording
antecedent rights of defendant Nos.2 to 4 in respect of
property bearing CTS No.769 which required no
registration. He submitted that in terms of Ex.P.1
defendant Nos.2 to 4 are the absolute owners of the
property bearing CTS No.769 and that the plaintiffs and
defendant No.5 have no right over the same. In support
of his submission, the learned counsel relied upon the
following decisions of the Hon'ble Apex Court:
(i). Subraya M.N. v. Vittala M.N. & others reported in AIR 2016 SC 3236.
(ii) Sahu Madho Das and others v. Mukand Ram and another reported in AIR 1955 S.C. 481.
(iii) Kale and others v. Deputy Director of Consolidation and others reported in AIR 1976 SC
807.
Thus, he submits that the judgment and decree
passed by the trial Court is liable to be set aside.
10. On the other hand, the learned counsel for
the respondents - plaintiffs submits that there is no
error or illegality committed by the trial Court in
passing the judgment and decree. Sufficient
opportunity had been afforded to the appellants.
However, the appellants have neither appeared nor
shown their bonafides in prosecuting the matter.
Ex.P.1 is a document requiring compulsory registeration
and not having been registered cannot be relied upon.
He places reliance on the judgment of the Hon'ble Apex
Court in Yellapu Uma Maheswari and Another v.
Buddha Jagadheeswararao and others reported in
(2015) 16 SCC 787 .
11. Heard learned counsel for the parties.
Perused the records. The following issues arise for our
consideration in this appeal:
1. Whether the appellants were
provided sufficient opportunity to
prosecute and defend their case?
2. Whether the trial Court was
justified in discarding relinquishment Ex.P.1 as it was an unregistered document?
3. Whether the trial Court was
justified in decreeing the suit and
dismissing the counter claim of
defendant Nos.1 to 4?
12. From the order sheet of the trial Court it is
seen that on 15.12.2011, service of summons on
defendant Nos.1 and 3 was held sufficient and placed
them ex-parte and notice was reissued to defendant
Nos.2, 4 and 5 through RPAD, returnable by
20.01.2012. Later, on the very same date, Vakalath
was filed for defendant Nos.1 to 4 and the ex-parte order
passed against defendant Nos.1 and 3 was set aside.
The matter was thereafter posted on 20.01.2012 for
filing of written statement of defendant Nos.1 to 4. The
matter was adjourned on five occasions for filing of the
written statement of defendant Nos.1 to 4. On
05.04.2012, since 90 days period had elapsed and
defendant Nos.1 to 4 had failed to file written statement,
the trial Court has taken the written statement of
defendant Nos.1 to 4 as not filed and posted the matter
for evidence of plaintiffs on 11.04.2012, on which date,
defendant Nos.3 and 4 filed written statement and the
same was taken on record. Thereafter, the matter was
posted on 16.04.2012 for compliance under Section 89
of CPC. Since the parties did not report any settlement,
the trial Court framed issues on 22.05.2012. On
23.05.2012, plaintiff No.3 examined as P.W.1 and got
exhibited 15 documents as Exs.P.1 to P.15 and the
matter was posted for cross-examination of P.W.1 on
31.05.2012. The plaintiffs had filed application seeking
permission to file rejoinder which was allowed on
04.06.2012 and the matter was again posted for cross-
exanimation of P.W.1 on 05.06.2012. On 05.06.2012,
the counsel for defendant Nos.1 to 4 sought time for
cross-examination of P.W.1 which was granted and
matter was posted on 12.06.2012. On 12.06.2012, the
parties and counsel were absent and the matter was
again posted for cross-examination of P.W.1 on
19.06.2012. On 19.06.2012, defendant Nos.1 to 4 and
their counsel were absent and the trial Court noted that
P.W.1 was present, fully examined and the matter was
posted on 26.06.2012 for further evidence of plaintiffs, if
any. The matter was preponed to 22.06.2012 by
defendant No.5, seeking recall of the earlier ex-parte
order passed against defendant No.5 and to file written
statement. The matter was again posted on
26.06.2012, earlier ex-parte order was recalled and
written statement of defendant No.5 was taken on
record and thereafter the matter was posted again on
11.07.2012 for filing of rejoinder of defendant Nos.1 to 4
to the counter claim of defendant No.5. On 11.07.2012,
defendant Nos.1 to 4 and their counsel remained absent
and the matter was posted on 08.08.2012, on which
date the rejoinder of defendant Nos.1 to 4 was taken as
not filed and the matter was posted for evidence on
05.09.2012. The matter has been preponed from
05.09.2012 to 09.08.2012, on which date, it was
submitted that there was no further evidence on behalf
of the plaintiffs and accordingly, the matter was posted
for defendants' evidence on 23.08.2012. On 23.08.2012,
the defendants and the counsel were absent, the matter
was posted for defendants' evidence on 27.08.2012. On
27.08.2012, defendant No.5 examined as D.W.1,
defendant Nos.1 and 4 and counsel were absent, the
matter was posted for cross-examination of D.W.1 on
29.08.2012. Even on 29.08.2012, defendant Nos.1 to 4
and their counsel were absent, D.W.1 was present, fully
examined and it was taken as no further evidence of the
defendants. The matter was thereafter posted for
arguments on 31.08.2012. On 31.08.2012, additional
issue was framed, defendant Nos.1 to 4 and their
counsel were absent and after hearing the arguments
on behalf of the plaintiffs, the matter was adjourned to
01.09.2012 for arguments of defendant No.5 and 1 to 4,
if any. Even on 01.09.2012, defendant Nos.1 to 4 and
their counsel were absent, no additional evidence was
adduced, even after framing of additional issue. Once
again the matter was posted for arguments of defendant
Nos.1 to 4, if any, on 03.09.2012. Even on 03.09.2012,
defendant Nos.1 to 4 and their counsel were absent.
The arguments on the side of defendant Nos.1 to 4 was
taken as heard and the matter was posted for judgment
on 01.10.2012. On 01.10.2012, the judgment was
pronounced. Even on the said date, the parties and
their counsel were absent.
13. The aforesaid order sheet reveal that written
statement of defendant Nos.1 to 4 has been taken on
record though filed belatedly. Defendant Nos.1 to 4
have not availed the opportunity to cross-examine P.W.1
despite sufficient opportunity provided by the trial
Court. They have remained absent on all most every
hearing dates after evidence of P.W.1. There is nothing
on record even to suggest that defendant Nos.1 to 4
made any attempt to recall the order closing their cross-
examination and closing the stage of their evidence.
Thus, under the aforesaid facts and circumstances, it
cannot be said that the defendants were not provided
with sufficient opportunity to represent and prosecute
their case before the trial Court. Merely because the
trial Court had posted the matter at a short intervals
does not mean that the trial Court had deprived the
appellants, any opportunity, particularly, when
defendant Nos.1 to 4 and their counsel had remained
absent during the dates of hearing. Thus, we hold that
the trial Court had afforded sufficient opportunity to
defendant Nos.1 to 4. Accordingly, issue No.1 answered
in the affirmative.
14. Now we advert to the case of the appellants
on merits. It is their specific case that they are the
absolute owners of property bearing CTS No.769 by
virtue of Ex.P.1 an unregistered relinquishment deed.
The certified copy of the said document has been
produced and marked by the plaintiffs. The learned
counsel for the appellants submits that Ex.P.1 is to be
construed as family settlement as it relates to their
antecedent rights in respect of the immovable property
bearing CTS No.769 and as such, the same did not
require registration. the learned counsel placed reliance
on the judgment of the Hon'ble Apex Court referred to
above
In the case of Subraya M.N. v. Vittala M.N. &
others reported in AIR 2016 SC 3236, the Hon'ble
Apex Court dealing with Panchayat resolution held at
paragraph Nos.16 and 17 of the judgment as under:-
"16. Under Section 17 of the
Registration Act, the documents which
purport or operate to create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees and upwards, are to be registered. Under Section 49 of the Registration Act no document required by Section 17 or by any provision of the Transfer of Property Act to be registered shall be received as evidence of any transaction affecting an immovable property.
As provided by Section 49 of the Registration Act, any document, which is not registered as required under the law would be inadmissible in evidence and cannot therefore be produced and proved under Section 91 of the Evidence Act."
17. .... There is no provision of law requiring family settlements to be reduced to writing and registered, though when reduced to writing the question of registration may arise. Binding family arrangements dealing with immovable property worth more than rupees hundred can be made orally and when so made, no question of registration arises. If, however, it is reduced to the form of writing with the purpose that the term should be evidenced by it, it required registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of parties."
In the case of Sahu Madho Das and others v.
Mukand Ram and another reported in AIR 1955 S.C.
481 dealing with the issue involving a family
arrangement, at paragraph No.54, the Hon'ble Apex
Court has held as under:-
".......... It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is
concerned and therefore no conveyance is necessary."
In the case of Kale and others v. Deputy
Director of Consolidation and others reported in AIR
1976 SC 807, the Hon'ble Apex Court referring to a
family arrangement and reiterating the law laid down in
Sahu Madho Das supra held as under:-
"The family arrangement may be even oral in which case no registration is necessary. The 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 is, therefore, not compulsorily registrable."
15. Thus, relying upon the aforesaid judgments,
the learned counsel for the appellants submitted that
Ex.P.1 a relinquishment deed requires to be construed
as a family settlement of antecedent rights of the parties
to the said document. He further submits that the trial
Court not having given an opportunity to the appellants
to substantiate their stand, had indeed deprived and
denied them justice. Hence, the learned counsel
insisted for remanding of the matter.
16. The aforesaid arguments of the learned
counsel cannot be accepted for the following reasons:-
At the outset the aforesaid judgments of the Hon'ble Apex Court are with regard to the issue relating to family arrangement/settlement in which the parties at lis were claiming rights which had already resided in them. No new rights were either conferred or extinguished in respect of immovable properties therein.
It was under those circumstances, held that the registration were not compulsory if the family settlement/arrangement was only a record of memorandum of transaction which had taken place at earlier point in time in respect of 'antecedent rights' pertaining to immovable property.
In the instant case, even as admitted by defendant Nos.3 and 4 in their written statement property bearing CTS No.769 was self acquired property of the deceased Mr.Durgappa he having purchased under a registered deed of sale dated 04.12.1992. Therefore, the question of defendant Nos.1 to 3 being sons and defendant No.4 being grandson of Mr.Durgappa having any antecedent rights in the said property does not arise.
Perusal of Ex.P.1 reveal that the same had been purportedly executed by Mr.Durgappa in favour of defendant Nos.2 and 3 his sons and defendant No.4 his grandson being the son of defendant No.1. The said document purports to create right in respect of the immovable property in their favour 'in presenti'. The said document can neither be construed as a family settlement/arrangement nor a memorandum of family arrangement that had already taken place amongst the parties as sought to be made out. Thus, the argument
canvassed by the learned counsel for the appellants relying upon the aforesaid judgments of the Hon'ble Apex Court is misconceived and same cannot be accepted.
17. The learned counsel for the respondents
relied upon the judgment of the Hon'ble Apex Court in
the case of Yellapu Uma Maheswari and Another v.
Buddha Jagadheeswararao and others reported in
(2015) 16 SCC 787. In the said case the Hon'ble Apex
Court dealing with the admissibility of a document
namely, a deed of memorandum dated 05.06.1975 held
that:
'The admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exts.B- 21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document
which is compulsorily regitrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act.
Hence, Exts.B-21 and B-22 are the documents which squarely fall within the ambit of Section 17(1)(b) of the Registration Act and are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties."
18. It is to be noted that all the aforesaid
judgments have been rendered by the Hon'ble Apex
Court in the light of requirement of Section 17(1) (b) and
Section 49 of the Registration Act, 1908. Section
17(1)(b) of the Registration Act, 1908 mandates that any
document which has the effect of creating and taking
away rights in respect of an immovable property must
be registered and Section 49 of the Act imposes bar on
the admissibility of an unregistered document. It is
useful to refer to Section 91 of the Evidence Act which
excludes production and proof of documents requiring
compulsory registration and renders such document
inadmissible.
19. As regards the arguments of the learned
counsel for the appellants with regard to remanding the
matter affording an opportunity to the appellants
enabling them to substantiate their case of
relinquishment deed to be construed as family
settlement, we do not find any merits therein. It is
settled law that the power of remand should be
exercised with greater restrain keeping in mind the early
finality of a litigation is the public policy. Further, when
all material evidence is available on record sufficient to
finally dispose off the matter, remand should not be an
option. As already discussed, the aforesaid document
being an unregistered document purporting to create
rights in respect of the immovable property 'in presenti'
is clearly inadmissible in evidence. The certified copy of
the said document has however been produced by the
plaintiffs - respondents and was marked as Ex.P.1 in
their evidence. We may note the mere marking of the
document does not amount to proof or admissibility of
the same.
20. Thus, even as rightly held by the trial Court
in the instant case the appellants have failed to
establish their exclusive right over the property bearing
CTS No.769. The appellants cannot take shelter under
Ex.P.1 under the guise of they having purported
antecedent rights. The appellants themselves have
admitted that the said property was the self acquired
property of Mr.Durgappa. As regards the property
bearing VPC No.913, the appellants have admitted in
the written statement that the same is joint family
property. Thus, there is no controversy requiring any
fresh adjudication. The counter claim of the appellants
has been rightly declined and rejected by the trial
Court. In our considered opinion in the facts and
circumstances of the case and the position of law
narrated hereinabove and in view of all material
available on record no purpose would be served or any
benefit would enure to the advantage of the defendants
by remanding the matter to the trial Court. It is also
not the case of the appellants that they have any other
material other than what is already available on record
production of which is preeminently required for
effective disposal of the case. It is their specific case
that Ex.P.1 requires to be construed as family
settlement which we have already discussed and
negated as above. No fruitful purpose would be served
by remanding the matter even if we accept that the
appellants require another opportunity in the matter.
Hence, we do not deem it necessary to accept the
submission for remand of the matter.
21. In view of the aforesaid analysis, we are of
the considered view that the appellants had been
provided with sufficient opportunity by the trial Court.
The trial Court was justified in discarding Ex.P.1 and
declined to grant counter claim of the appellants. The
trial Court was justified in holding that the suit
properties to be joint family properties and thereby
allotting the shares to the plaintiff and defendant No.5
therein. Hence, the following:
ORDER
The appeal is dismissed. The judgment and
decree dated 01.10.2012 in O.S.No.206/2011 passed by
I Additional Senior Civil Judge, Bijapur is confirmed.
Sd/-
JUDGE
Sd/-
JUDGE
RSP
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