Sharada W/O Vankaraddi Kataraki vs Ratna W/O Devaraddi Shiggavi
2022 Latest Caselaw 2172 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 10TH DAY OF FEBRUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                   RSA.NO.5734/2012 (PAR)
BETWEEN

SMT.SHARADA W/O VANKARADDI KATARAKI
AGE: 42 YEARS, OCC: HOUSEHOLD WORK
R/O. DHARWAD
                                                 ... APPELLANT

(BY SRI.ARUN L.NEELOPANT, ADV.)

AND

1.    SMT.RATNA W/O DEVARADDI SHIGGAVI
      AGE: 56 YEARS, OCC: HOUSEHOLD WORKR/O. MIG -I NO.
      185, SHIDDALINGA NAGARGADAG, DIST: GADAG

2.    KUMARI PUSHPA D/O DEVARADDI SHIGGAVI
      AGE: 34 YEARS, OCC: HOUSEHOLD WORK R/O. MIG -I NO.
      185, SHIDDALINGA NAGARGADAG, DIST: GADAG

3.    SRI.PRAVEEN S/O. DEVARADDI SHIGGAVI
      AGE: 32 YEARS, OCC: PRIVATE SERVICE, R/O. MIG-I NO. 185,
      SHIDDALINGANAGAR, GADAG, DIST: GADAG

4.    SRI.SRINIVAS S/O DEVARADDI SHIGGAVI
      AGE: 30 YEARS, OCC: STUDENT, R/O. MIG -I NO. 185,
      SHIDDALINGA NAGARGADAG, DIST: GADAG

5.    SRI.GADIGEPPA S/O HANAMARADDI @ HANAMAPPA
      SHIGGAVI,
      AGE: 62 YEARS, OCC: NIL
      R/O. BASAMMA NILAYA VAKIL CHAWLGADAG, DIST: GADAG
                                2




6.     SRI.SANJEEVARADDI S/O HANAMARADDI @ HANAMAPPA
       SHIGGAV
       AGE: 48 YEARS, OCC: NIL R/O. BASAMMA NILAYA VAKIL
       CHAWLGADAG, DIST: GADAG

7.     SMT.BASAMMA S. PATIL
       AGE: 41 YEARS, OCC: LECTURERR/O. KARATAGI, TQ:
       GANGAVATI, DIST: KOPPAL

8.     SMT.YALLAMMA W/O TIMMARADDI BELLARY
       AGE: 54 YEARS, OCC: HOUSEHOLD WORKR/O. KOPPAL ROAD,
       GANDHINAGAR, DIST: BELLARY

9.     SRI.SHANKARGOUDA S/O MELAGIRIGOUDA PATIL
       AGE: MAJOR, OCC: AGRICULTURER/O. MALASAMUDRA,
       TQ: GADAG. DIST: GADAG

10 .   SRI.DANAPPA S/O VEERAPPA HANGANAVAR
       AGE: 46 YEARS, OCC: LECTURER,R/O. TAMBAKAD BUILDING,
       OPP: J.T. COLLEGE, GADAG

11 .   SRI.VASANTRADDI S/O HANAMARADDI @ HANAMAPPA
       SHIGGAVI
       AGE: 51 YEARS, OCC: AGRICULTURER/O. BASAMMA NILAYA,
       VAKIL CHAWL, GADAG, DIST: GADAG

                                                 ... RESPONDENTS
(BY SRI.SHARAD V.MAGADUM, ADV. FOR R6,
   SRI.LAXMAN T.MANTAGANI, ADV. FOR R10,
   SRI.GIRISH S.HIREMATH, ADV. FOR R11,
   R1, R2, R3, R4, R5, R7, R8 HELD SUFFICIENT,
   R5 & R9 SERVED)

      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE PASSED IN
R.A.NO.33/2010 DATED 13.04.2012 PASSED BY THE DISTRICT AND
SESSIONS JUDGE, GADAG AND SET ASIDE THE IMPUGNED
JUDGMENT AND DECREE PASSED IN O.S.NO.261/2002 DATED
06.03.2010 PASSED BY THE CIVIL JUDGE (SR.DN.) AND CJM GADAG
AND ALOW THE SUIT O.S.NO.261/2002.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                            3




                                   JUDGMENT

The captioned regular second appeal is filed by

unsuccessful plaintiff No.3 who has challenged the

judgment and decree of both the courts below wherein the

suit filed by the appellant/plaintiff No.3 seeking relief of

partition and separate possession is dismissed and is

confirmed by the first appellate court.

2. The genealogy of the plaintiff and defendants

family is as follows:

Hanamaraddi (died on 14.08.1996)

Devakka (Plf.1)

Devaraddi Gadigeppa Vasantraddi Sanjeevaraddi Basamma Yallamma Sharada (D1) (D2) (Plf.2) (D3) (D4) (D5) (D6)

Transposed as Plf.No.3

3. One Vasanth Reddi who is the son of

Hanamareddi and brother of the present appellants and

defendants filed suit for partition and separate possession

in O.S.No.261/2002 by specifically contending that suit

schedule properties are the joint family ancestral properties

and that they are in joint cultivation and enjoyment over

suit schedule property. The said original plaintiff further

contended that defendant Nos.1 to 6 have made family

arrangement deed on 05.11.2000 without effecting any

partition and separate possession in respect of the suit

schedule properties. Plaintiff No.2 further alleged that he

was kept in dark and the alleged family arrangement was

not brought to his notice. Having come to know about the

alleged family arrangement, he requested his brothers and

sisters to effect partition and allot his legitimate share.

Hence, the said Vasantreddi who was arrayed as plaintiff

No.2 along with his mother Devakki filed a suit for partition

and separate possession.

filed written statement and admitted that there was

severance in the family pursuant to family arrangement

deed which was executed on 05.11.2000. Defendant No.2

did not contest the proceedings. Defendant No.4 on receipt

of summons filed written statement and at para 4 of the

written statement specifically contended that in terms of

family arrangement dated 05.11.2000, there is severance

in the family. Defendant No.5 has also not chosen to

contest the proceedings and has not filed written

statement.

5. The present appellant who was initially arrayed

as defendant No.6 filed written statement supported the

claim of the plaintiffs. The present appellant also contended

that there is no severance in the family and her signature

was taken on blank paper assuring that the same is

required to mutate the name of the brothers and sisters.

6. Pending proceedings, the mother of appellants

and defendants passed away and plaintiff No.2, namely

Vasanthreddi did not choose to contest the suit. It is in this

context, the present appellant got transposed as plaintiff

No.3 and let in evidence.

7. The trial court having assessed oral and

documentary evidence and also having bestowed its

consideration on the ocular evidence as well as

documentary evidence let in by the parties, accepted the

theory of prior partition set up by the defendants. The trial

court having examined Ex.D10 answered issue Nos.7 and 8

in the negative and thereby recorded a finding that present

appellant has failed to prove that the suit schedule

properties are self-acquired properties of Hanamaraddi and

further recorded a finding that appellant has failed to prove

that she has got 1/7th share in all the suit schedule

properties.

8. The trial court having examined Ex.D10 coupled

with ocular evidence of P.Ws.2 and 3 and also D.W.3 who

is witness to the family arrangement has come to the

conclusion that there is severance in the family which has

taken place in the year 2000. The trial court further took

note of Ex.P8 and has also come to the conclusion that

family arrangement was reported to the revenue

authorities and the same was acted upon and consequently

in terms of the family arrangement deed, names also came

to be mutated in the revenue records. The trial court

having examined these material documents has also drawn

adverse inference against the present appellant. The trial

court was of the view that present appellant having

admitted her signature on Ex.D10 was required to lead

cogent and clinching evidence to demonstrate that her

signature was taken on blank paper and that she was not

at all aware of the contents of Ex.D10. Having admitted her

signature on Ex.D10, the trial court was of the view that

the present appellant herein has failed to establish that her

signature was taken on blank paper and further she has

also failed to prove that suit schedule properties are still

joint family ancestral properties and that she is in joint

possession and enjoyment over the suit schedule

properties. On these set of reasoning, the trial court

proceeded to dismiss the suit.

9. Feeling aggrieved, the appellant preferred an

appeal before the first appellate court. The first appellate

court having independently assessed ocular and

documentary evidence has also come to the conclusion that

family arrangement deed dated 05.11.2000 as per Ex.D10

stands proved by respondents/defendants. The first

appellate court was of the view that family arrangement

deed was acted upon pursuant to mutation effected in

terms of the family arrangement deed and thereby

properties allotted to the family members were transferred

in the names of respective parties in terms of family

arrangement deed. On these set of reasoning, the first

appellate court proceeded to confirm the finding and

conclusions arrived at by the trial court. It is against these

concurrent judgment and decree of the courts below, the

present appellant is before this court.

10. Heard the learned counsel for the appellant,

learned counsel for the respondents and perused the

judgments under challenge. I have bestowed my anxious

consideration in examining the trial court records.

11. The appellant who was initially arrayed as

defendant No.6 got herself transposed since plaintiff No.2

did not choose to contest the proceedings. The defendants

have taken up a specific contention that in the year 2000

at the intervention of elders there was amicable settlement

and there was a partition in the family. In terms of the

partition, subsequently appellants and respondents have

reduced the oral partition as per Ex.D10. On perusal of

Ex.D10, this court would find that the same has come into

existence pursuant to partition between the family of

plaintiffs and defendants. Defendant Nos.1 and 3 who have

filed common written statement have admitted oral

partition and consequential memorandum of partition dated

05.11.2000. Defendant No.2 has also not contested and

therefore, it presupposes that there is no challenge to

Ex.D10. Plaintiff No.2 who is brother of present appellant

though has filed the suit has given up his claim by not

choosing to contest the proceedings. Defendant No.4 who

has also filed independent written statement and has also

admitted at para 4 of the written statement in regard to

family arrangement and the same being reduced into

writing as per Ex.D10. Defendant No.5 has not filed written

statement and therefore, it presupposes that there is no

challenge to Ex.D10.

12. Now the crucial point that needs to be examined

is that the present appellant has also filed written

statement and has admitted her signature on Ex.D10.

Therefore, what emerges from the records is almost all

brothers and sisters have admitted in unequivocal terms

that there was an oral partition and the same was reduced

into writing subsequently in the year 2000. The present

appellant has admitted her signature on Ex.D10, but a

specific contention is taken by her that her signature was

secured on blank paper. Having taken such a contention

that her signature was taken on blank paper, it was

incumbent o the part of appellant/defendant No.6 to

establish the said fact. If the signature on a document is

admitted, then it amounts to due execution of the said

document. If the contents are seriously disputed, then the

entire burden is on the party who has admitted due

execution of the document but disputes the contents of the

documents to lead cogent and clinching evidence and prove

that contents are false.

13. Both the courts have meticulously examined

Ex.D10 coupled with Ex.P8 which indicates that family

partition or an family arrangement is acted upon and

parties are put in exclusive possession of respective

properties which came to be allotted in an oral partition,

which was subsequently reduced into a document vide

Ex.D10. All these significant details are taken into

consideration and both the courts below have concurrently

held that there is already severance in the family and

therefore, the present partition suit is not at all

maintainable. A feeble attempt is made by the counsel

appearing for the appellant by referring to para 4 of

examination-in-chief of defendant No.4. By placing this

relevant paragraph, he would try to make out a case that

her evidence indicates that partition was effected under

Ex.D10 and therefore, he would submit that the said

document for want of registration is inadmissible in

evidence. This contention is totally misconceived. Any

statement made by one of the party in examination-in-

chief would not dislodge the defence set up by other

defendants during trial. When execution of document at

Ex.D10 is not in dispute, the courts are bound to examine

the recitals in the said document and are required to infer

to the intention of the parties from the very document. The

document itself clearly indicates that parties have reduced

the earlier partition into writing under Ex.D10. Therefore, it

can be inferred that Ex.D10 is a memorandum of a

partition and not partition deed in itself. Therefore, even if

it is not registered, it is admissible and both the courts

below have dealt with this issue.

14. One more attempt was made by learned counsel

for the appellant by contending that signature of the

mother of the plaintiff and appellants and respondents on

Ex.D10 is forged. The said contention is of no consequence.

When the appellant herself has admitted her signature on

Ex.D10, question of examining as to whether the signature

of the mother was forged would be of no consequence.

15. In that view of the matter, no substantial

question of law arises for consideration in the present

appeal. Accordingly, the appeal stands dismissed.

SD/-

JUDGE MBS/-