Chinnamma vs Nagesha
2022 Latest Caselaw 1503 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 2ND DAY OF FEBRUARY, 2022

                          BEFORE

       THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

                 R.S.A. No.1165/2020

BETWEEN:

CHINNAMMA
W/O LATE DEVANNA,
AGED 75 YEARS,
R/O DODDAKATOORU VILLAGE,
JAYAPURA HOBLI,
MYSURU TALUK
MYSURU DISTRICT - 570 008.
                                       ... APPELLANT

(BY SRI. PRAMOD R., ADVOCATE)

AND:

1.     NAGESHA
       S/O LATE PUTTASWAMY,
       AGED 40 YEARS,

2.     GEETHA
       D/O LATE PUTTASWAMY,
       AGED 43 YEARS,

3.     SHIVANNA
       S/O LATE PAPANNA
       AGED 61 YEARS,

4.     DEVANNA
       S/O LATE PAPANNA
       AGED 51 YEARS,
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5.   GOWRAMMA
     W/O LATE NAGARAJU
     D/O PAPANNA
     AGED 48 YEARS,

6.   SWAMY
     S/O LATE PAPANNA
     AGED 45 YEARS,

     THE RESPONDENT NO. 1 TO 6 ARE
     R/O DODDAKATOORU VILLAGE,
     JAYAPURA HOBLI,
     MYSURU TALUK
     MYSURU DISTRICT - 570 008.

7.   MANGALA
     W/O MAHADEVASWAMY
     D/O PAPANNA,
     AGED 42 YEARS,
     R/O MADAPURA VILLAGE
     KASABA HOBLI, CHAMARAJA NAGARA TALUK
     CHAMARAJANAGARA DISTRICT - 571 313.

8.   SHIVAMMA
     W/O PUTTASWAMY,
     AGED ABOUT 63 YEARS,
     R/O DODDAKATOORU VILLAGE,
     JAYAPURA HOBLI,
     MYSURU TALUK AND DISTRICT - 570 008.


                                      ... RESPONDENTS

(BY SRI.N. NANJUNDASWAMY, ADVOCATE)

     THIS APPEAL IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 21.11.2019
PASSED IN RA.NO. 4/2018 ON THE V ADDITIONAL DISTRICT
JUDGE, MYSORE, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 22.09.2017
PASSED IN OS.NO. 82/2010 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND CJM., MYSURU.
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     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

1. This is a second appeal by the plaintiff who had

secured a decree of partition from the Trial Court, which

was however reversed by the appellate Court, resulting in

the dismissal of her suit.

2. The case of the plaintiff is that her father -

Sri. Papanna had two wives viz., Smt. Doddathayamma

and Smt. Puttamma.

3. According to her, the first wife, her mother,

Smt. Doddathayamma had three children i.e.,

(i) Smt. Chinnamma (the plaintiff), (ii) Sri Puttaswamy (who

was no more) and (iii) Sri. Shivanna (defendant No.3).

4.     She      stated       that,       the      second          wife,

Smt.         Puttamma        had       four       children         i.e.,

(i) Sri. Devanna (ii) Smt. Gowramma (iii) Sri. Swamy and

(iv) Smt. Mangala (defendant Nos.4 to 7).

5. She claimed that she was entitled to 1/3rd share in

the 'A' schedule property, which was the self acquired

property of Smt. Doddathayamma (her mother) and was

entitled to 1/7th share in 'B' and 'C' schedule properties,

which were joint family and absolute properties.

6. The defendant Nos. 2 to 7 contested the suit stating

that the plaintiff had relinquished all her rights in the joint

family properties by executing a registered Relinquishment

Deed on 16.10.2008.

7. The plaintiff, thereafter, sought for amendment of the

plaint by which she sought for a declaration that the

Release Deed dated 16.10.2008 executed by her was null

and void.

8. It was the case of the defendant Nos.2 to 7 that

during the lifetime of their father, there was a partition in

the year 1988 and a palu patti dated 12.05.1988 was

prepared which had also been signed by the plaintiff. They

stated that under the palu patti, she had got herself

separated from the family, but at the instigation of her

son-in-law, the plaintiff and defendant Nos.5 and 7 (her

half-sisters), she demanded money and left

with no other alternative, Sri. Puttaswamy and

Sri. Shivanna (her brothers), along with her half-brothers

viz., Sri. Devanna and Sri. Swamy (defendant Nos.4 and 6)

had paid a sum of Rs.1,00,000/- (Rupees One Lakh Only)

to the plaintiff and her son and at that time, a Release

Deed was also executed on 16.10.2008 not only by the

plaintiff but also her half-sisters - Smt. Gowramma and

Smt. Mangala (defendant Nos.5 and 7). It was contended

that in view of this registered Release Deed, the suit filed

by her for partition could not be maintained.

9. The Trial Court, on consideration of the evidence

adduced came to the conclusion that the plaintiff had

proved that 'A' schedule property was the property of her

mother and she along with defendant No.3 and father of

defendant Nos.1 and 2 had succeeded to the same.

10. The Trial Court held that 'B' schedule property was

the joint family property belonging to the plaintiff and

defendant Nos.1 to 3.

11. The Trial Court also found that defendant Nos.2 to 7

had not proved that the plaintiff had executed the Release

deed with the knowledge of its contents. It however held

that defendant Nos.5 and 7 had not disputed that they had

executed a registered Release Deed in favour of

Sri. Puttaswamy (brother of plaintiff-Sri. Chinnamma) and

also in favour of defendant Nos.3, 4 and 6.

12. The Trial Court therefore concluded that the plaintiff

was entitled to 1/3rd share in 'A' schedule property (her

mother's property) and was entitled to 1/35th share in the

'B' & 'C' schedule properties, which were her ancestral

properties.

13. The Trial Court also granted 1/3rd share to defendant

Nos.1 and 2 jointly and 1/3rd share to defendant No.3 in

respect of 'A' schedule property.

14. In respect of 'B' and 'C' schedule properties,

defendant Nos.1 and 3 were together held entitled for

17/70th share and defendant Nos.3, 4 and 6 were entitled

to 17/70th share each.

15. Being aggrieved, an appeal was preferred by

defendant Nos.1 to 7.

16. The Appellate Court on re-appreciation of the

evidence came to the conclusion that the plaintiff had

indeed executed a Relinquishment Deed dated 16.10.2008

whereby, she had released her rights over the properties

along with Smt. Gowramma and Smt. Mangalamma. The

Appellate Court found that the plaintiff had admitted not

only her signature and her photograph but also the

signature and photographs of her half-sisters and she had

in the cross examination also deposed that she had never

signed blank sheets. The Appellate Court also found that

the plaintiff had admitted that both her sons were present

when the documents were executed.

17. The Appellate Court therefore concluded that in view

of the admission of the plaintiff that she had executed the

document and had brought along her two [2] sons for

registration, it could not be imagined that the signature of

the plaintiff could have been obtained fraudulently. The

Appellate Court specifically noticed that though fraud was

pleaded and the burden was on the plaintiff to prove the

fraud, there was no evidence to establish that fraud was

practiced on her.

18. The Appellate Court also noticed that the plaintiff

admitted that she had received a sum of Rs.40,000/-

(Rupees Forty Thousand Only) for execution of one [1]

document. The Appellate Court observed that when she

had admitted receipt of Rs.40,000/- (Rupees Forty

Thousand Only) for execution of one document, it was

obvious that she would have also demanded consideration

for execution of another document, but the fact that she

has admitted receipt of Rs.40,000/- (Rupees Forty

Thousand Only) and her presence at the office of the Sub-

Registrar itself proved that she was trying to retract from

her Relinquishment Deed. The Appellate Court accordingly

allowed the appeal and dismissed the suit.

19. It is as against these divergent judgments, the

present appeal is filed.

20. The learned counsel for the appellant contended that

on 16.10.2008, admittedly, two [2] registered documents

were executed; one [1] was a sale deed and another was a

Relinquishment Deed executed by the plaintiff. He

submitted that in the guise of obtaining the sale deed, the

defendants had also managed to obtain a Release Deed

signed and this was a clear case of misrepresentation

which stood proved by the circumstances itself. He

submitted that since the witnesses to the sale deed did not

subject themselves to cross examination, that was also

proof of fact that only a sale deed was required to be

executed and the obtaining of the Release Deed was to

basically dupe the plaintiff.

21. I have considered the submissions of the learned

counsel and have perused the material on record.

22. The execution of the Relinquishment Deed by the

plaintiff is undoubtedly admitted. The case set out by the

plaintiff was that there was misrepresentation and as a

reason of the misrepresentation, she had executed the

Relinquishment Deed. It is to be noticed here that the

Relinquishment Deed was executed not only by the

plaintiff, but also by her half-sisters. In fact, both her half-

sisters who were signatories to the Relinquishment Deed

have supported the case of the defendants by filing a joint

written statement. Under this Relinquishment Deed,

basically, all the daughters of the family had chosen to

relinquish their share in favour of their brothers.

23. The burden to establish that there was

misrepresentation was entirely on the plaintiff. However,

the plaintiff has not chosen to examine any person to

support this plea. To establish that there was

misrepresentation, it was incumbent on the plaintiff to

establish by oral evidence of either the purchasers or other

members of her family to the effect that the only intention

of the family members was to convey one [1] ancestral

property and it was not the intention of the daughters of

the family to relinquish their share. In the absence of any

such evidence, merely because a sale deed was also

executed on the same day that cannot by itself lead to the

inference that there was misrepresentation and the

misrepresentation had stood proved by the prevailing

circumstances.

24. It is settled law that whenever fraud is alleged, the

same would have to be pleaded specifically and should

also be established in its entirety. Fraud cannot be

inferred by circumstances surrounding the execution of a

relinquishment deed. In the instant case, apart from the

testimony of the plaintiff, there is no other evidence

indicating that fraud had been played on the plaintiff. The

Appellate Court was therefore perfectly justified in

dismissing the suit.

25. The fact that half-sisters of the plaintiff supported

the plaintiff's natural brothers and admitted execution of

the Relinquishment Deed is another compelling factor to

come to the conclusion that there was no

misrepresentation in obtaining the Relinquishment Deed.

26. The Appellate Court, being the final fact finding

Court, on appreciation of the evidence has recorded a clear

finding that the plaintiff had executed the Relinquishment

Deed and she was not subjected to any kind of fraud.

27. In my view, there is no question of law, much less a

substantial question of law arising for consideration in this

appeal. Consequently, the second appeal is dismissed.

Sd/-

JUDGE

RB