Mahantavva @ Maltavva W/O Somappa ... vs Basavva W/O Madiwallappa Ganiger
2022 Latest Caselaw 2628 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 17TH DAY OF FEBRUARY, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

             R.S.A.NO.100245/2017 (PAR)

BETWEEN

1.    MAHANTAVVA
      @ MALTAVVA
      W/O SOMAPPA MEGUNDI
      AGE : 55 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O: HOSAKATTI,
      TQ: KUNDAGOL,
      DIST: DHARWAD.

2.    RAMAPPA
      S/O SOMAPPA MEGUNDI
      AGE: 26 YEARS,
      OCC: AGRICULTURE,
      R/O: HOSAKATTI,
      TQ: KUNDAGOL,
      DIST: DHARWAD.
                                          ... APPELLANTS

(BY SMT.SUMANGALA A.CHAKALABBI, ADV.)

AND

1.    BASAVVA
      W/O MADIWALLAPPA GANIGER,
      AGE: 51 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O: INGALAHALLI,
      TQ: HUBLI,
      DIST: DHARWAD-580011
                             2




2.     YALLAPPA
       S/O BASAPPA NARGUND
       SINCE DECEASED BY HIS LRS.

2(A)   LAXMAVVA
       W/O DUNDAPPA RAYANNAVAR,
       AGE: MAJOR,
       OCC: HOUSEHOLD WORK,
       R/O NARAYANPUR,
       TQ: SHIGGAON.
       DIST: HAVERI.

2(A)   YALLAVVA
       W/O MANJAPPA BADAPPANAVAR,
       AGE: MAJOR,
       OCC: HOUSEHOLD WORK,
       R/O RAMANAKOPPA,
       TQ: KUNDAGOL,
       DIST: DHARWAD.
                                              ...APPELLANTS

(BY SRI PRASHANT S.KADADEVAR ADV. FOR R.1.)
(NOTICE TO RESPONDENT NO.2(A): SERVED)
(NOTICE TO RESPONDENT NO.2(B): HELD SUFFICIENT)

       THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 11.07.2016 PASSED
IN R.A.NO.92/2014 BY THE I ADDITIONAL DISTRICT AND
SESSIONS     JUDGE,   DHARWAD       SITTING   AT   HUBBALLI
CONFIRMING THE JUDGMENT AND DECREE DATED 06.08.2014
PASSED IN O.S.NO.90/2012 BY THE II ADDL. SENIOR CIVIL
JUDGE, HUBALI.

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




                     : JUDGMENT :

Heard the learned counsel for the appellants and

respondents on admission. The appeal is admitted to

consider the following substantial question of law:

"Whether the first appellate court was

justified in holding that defendant No.3 has not

succeeded to 1/3rd share of his grandmother

defendant No.1 pursuant to relinquishment deed

dated 04.01.2012 on the ground that registered

relinquishment deed is not produced ignoring the

fact that Respondents/plaintiffs have sought for

cancellation of registered relinquishment deed

dated 04.01.2012 and the same was declined by

the by the trial court and further the same has

attained finality, as respondents/plaintiffs have

not challenged the judgment and decree of the

trial court.?

2. With consent of the learned counsel for the

appellants and respondents, the appeal is heard on

merits. The controversy between the parties revolves

around a narrow compass and moreover, the trial

court has already decided the lis insofar as validity of

relinquishment deed is concerned.

3. The captioned regular second appeal is filed

by defendant Nos.2 & 3 questioning the judgment and

decree of the First Appellate Court insofar as denying

the rights of appellant No.2-defendant No.3, pursuant

to relinquishment deed executed by defendant No.1 in

favour of present defendant No.3.

4. The relevant genealogy of the family is as

follows.

Nagappa (Died in 1988)

Laxmavva (Def.No.1) (Wife of Nagapp)

Mahantavva (Def.No.2) Basavva (Pltf.)

Ramappa (Def.No.3)

5. The facts leading to the above said case are

as under:

Respondent No.1-plaintiff who is daughter of

propositus Nagappa filed a suit for partition and

separate possession by specifically contending that

the suit schedule properties are the ancestral

properties. She also challenged the registered

relinquishment deed executed by defendant No.1 in

favour of defendant No.3 dated 04.01.2012. Present

appellants-defendant Nos.2 and 3 feeling aggrieved by

the judgment and decree of the Trial Court preferred

an appeal before the First Appellate Court. The First

Appellate Court accepted the contentions of present

appellant No.2-defendant No.3 and recorded a

categorical finding that defendant No.1 who is the

grandmother of present appellant No.2-defendant

No.3 is competent to relinquish her 1/3rd share by way

of registered relinquishment deed. However, on the

premises that present defendant No.3 has not

produced relinquishment deed, the first appellate

court has proceeded to dismiss the appeal. It is

against this dismissal by the first appellate court, the

present appellants/defendant Nos.2 and 3 are before

this court.

6. In view of finding recorded by the first

appellate court, appellant No.2/defendant No.3 has

produced a certified copy of registered relinquishment

deed dated 04.01.2012. By placing this additional

evidence, learned counsel for the appellants would

submit to this court that since the first appellate court

has already recorded a categorical finding that

defendant No.1 was competent to relinquish her share

in favour of defendant No.3, however, for want of copy

of registered relinquishment deed, the first appellate

court declined to grant any relief to defendant No.3.

Therefore, this document is produced by appellant

No.2. Though no objections are filed by the learned

counsel for the respondents/plaintiffs in spite of an

opportunity was granted, however, learned counsel for

the respondents/plaintiffs would orally object

production of additional evidence by the appellants. He

would submit to this court that present appellant No.2

ought to have produced the document before the trial

court. Therefore, he would submit to this court that

there are laches on the part of appellant No.2 and

when no satisfactory reasons are assigned, the

certified copy of relinquishment deed by way of

additional evidence cannot be received by this court

under Section 100 of CPC. He would further contend

that, even otherwise, defendant No.1 could not have

relinquished her 1/3rd share in favour of defendant

No.3. Relinquishment deed executed by defendant

No.1 in favour of defendant No.3 will not create any

right and tile in favour of defendant No.3. To buttress

his arguments, he placed reliance judgment of Delhi

High Court rendered in the case of Hari Kapur vs

South Delhi Municipal Corporation.

7. Respondents/plaintiffs are awarded 1/3rd

share in the present case on hand. While granting

1/3rd share, the trial court held that relinquishment

deed dated 04.01.2012 executed by defendant No.1 in

favour of defendant No.3 is not binding on 1/3rd share

of respondents/plaintiffs. It would be useful for this

court to cull-out operative portion of the judgment and

decree of the trial court passed in O.S.No.90/2012.

"The suit of the plaintiff is decreed with cost.

It is ordered and decreed that plaintiff is

having 1/3rd share in the schedule property by

metes and bounds.

It is further ordered and decreed that release

deed dated 4-1-2012 executed by defendant No.1 in

favour of defendant No.3 is not binding on 1/3rd

share of the plaintiff in the schedule property.

Draw preliminary decree accordingly."

8. It would be also useful to cull-out prayer

column in the plaint which has bearing on the present

on the present lis which is only in respect of

relinquishment deed executed by defendant No.1 in

favour of defendant No.3. The prayer in

O.S.No.90/2012 reads as under:

"(C) ªÁ¢UÉ §gÀĪÀAvÀºÀ MlÄÖ PÀÄlÄA§zÀ zÁªÁ D¹ÛUÀ¼À°è ªÁ¢AiÀÄ »¸ÉìÃzÀ 1/3 »¸ÉìÃzÀ D¹ÛAiÀÄ£ÀÄß ¥ÀæwªÁ¢AiÀÄgÀ PÀqɬÄAzÀ ¸ÀzÀgÀ zÁªÁ D¹ÛUÀ¼À°è ¥ÀævÉåÃPÀUÉƽ¹, ¸ÀzÀgÀ 1/3 »¸ÉìÃzÀ D¹ÛAiÀÄ£ÀÄß ªÁ¢UÉ ¥ÀæwªÁ¢AiÀÄgÀ PÀqɬÄAzÀ PÀÆr¸ÉÆÃtªÁUÀ¨ÉÃPÀÄ CAvÁ DzÉñÀªÁUÀ¨ÉÃPÀÄ ºÁUÀÆ CzÉà ¥ÀæPÁgÀ ¥ÁæxÀ«ÄPÀ rQæAiÀÄ£ÀÄß ªÀiÁqÉÆÃtªÁUÀ¨ÉÃPÀÄ CAvÁ ¥ÁæxÀð£É CzÉ.

(D) ¢£ÁAPÀ 04-01-2012 gÀAzÀÄ ¥ÀæwªÁ¢ £ÀA.1 EªÀ¼ÀÄ ¥ÀæwªÁ¢ £ÀA. 3£ÉÃzÀªÀjUÉ ªÀiÁrzÀ ºÀPÀÄÌ ©lÖ ¥ÀvÀæªÀ£ÀÄß gÀzÀÄݨÁzÀ® CAvÁ WÉÆõÀuÉ ªÀiÁqÀ¨ÉÃPÀÄ.

(PÀ) ¥ÀæwªÁ¢AiÀÄgÀÄ zÁªÁ D¹ÛAiÀÄ°è ªÁ¢UÉ §gÀvÀPÀÌ 1/3 »¸ÉìÃzÀ D¹ÛAiÀÄ£ÀÄß ¥ÀævÉåÃPÀ ªÀiÁr ªÁ¢UÉ PÉÆqÀzÉà EzÀÝ°è, ªÀiÁ£Àå £ÁåAiÀiÁ®AiÀÄzÀªÀgÀÄ PÉÆÃlð PÀ«ÄõÀ£ÀgÀgÀ£ÀÄß £ÉëĹ ¸ÀzÀgÀ 1/3 »¸ÉÃzÀ D¹ÛAiÀÄ£ÀÄß «¨sÁUÀªÀiÁr ¥ÀævÉåÃPÀ PÀ¨ÁÓ PÉÆr¸À®Ä DzÉñÀªÁUÀ¨ÉÃPÀÄ.

(qÀ) ¥Àæ¸ÀAUÁ£ÀĸÁgÀ ªÁ¢UÉ ªÁzÀ ¥ÀvÀæªÀ£ÀÄß wzÀÄÝ¥Àr ªÀiÁqÀ®Ä CªÀPÁ±À ªÀiÁrPÉÆqÀ¨ÉÃPÀÄ.

(E) EvÀgÉà £ÁåAiÀiÁ±ÀæAiÀÄUÀ¼À£ÀÄß ªÁ¢UÉ zÀAiÀÄ¥Á°¸À¨ÉÃPÀÄ CAvÁ «£ÀAw CzÉ."

9. If the prayer at 'B' is examined, what

emerges is that, execution of registered

relinquishment deed executed by defendant No.1 in

favour of defendant No.3 is not in dispute. The relief

sought at prayer 'B' clearly indicates that, plaintiff has

sought for cancellation of registered relinquishment

deed executed by defendant No.1 in favour of

defendant No.3. Respondents/plaintiffs having sought

cancellation never produced certified copy of the

document. But it is not in dispute that due execution

of registered relinquishment deed is not at all

challenged. If prayer 'B' is examined in the context of

operative portion of the judgment rendered by the

trial court, this court would find that trial court on

adjudication has held that registered relinquishment

deed executed by defendant No.1 in favour of

defendant No.3 is valid. But however, it does not bind

plaintiffs 1/3rd legitimate share. This finding recorded

by the trial court is not at all challenged by the

respondents/plaintiffs. The respondents/plaintiffs have

accepted the judgment and decree passed by the trial

court in O.S.No.90/2012.

10. The first appellate court on re-appreciation

of oral and documentary evidence has concurred with

judgment and decree of the trial court. However, the

claim of defendant No.3 is declined on the ground that

defendant No.3 has not produced copy of registered

relinquishment deed.

11. In the light of the substantial question of

law framed by this court, this court has to examine, as

to whether error has occurred in the judgments

rendered by the courts below. This court would find

that this is a peculiar case on hand. Defendant No.1

has executed registered relinquishment deed on

04.01.2012 relinquishing certain properties in favour

of defendant No.3. This registered relinquishment

deed is challenged by plaintiffs and plaintiffs have

sought for cancellation of the same. The said relief is

not granted by the court below. However, the trial

court held that relinquishment deed dated 04.01.2012

executed by defendant No.1 in favour of defendant

No.3 is not binding on 1/3rd share of plaintiffs. This

necessarily means and can be inferred that the

relinquishment deed executed by defendant No.1 in

favour of defendant No.3 is held to be valid to the

extent of defendant No.1's share in the suit schedule

property. Respondents/plaintiffs have not questioned

this finding recorded by the trial court. It is in this

background, I would find that there was no occasion to

the first appellate court to again revisit this

controversy and recorded a finding that

relinquishment deed is not produced by the

appellants. This court is of the view that first appellate

court has totally misread the operative portion of the

judgment and decree and has also has not taken note

of the relief sought by the respondents/plaintiffs in the

plaint. The regular appeal in R.A.No.92/2014 was filed

by defendants questioning the judgment and decree of

the trial court on the ground that respondent

No.1/plaintiff relinquished her share by taking

Rs.4,00,000/- towards her legitimate share in the suit

schedule property. Therefore, the first appellate court

ought to have confined its enquiry to find out as to

whether respondent No.1/plaintiff has relinquished her

1/3rd share. The first appellate court having rightly

declined the contention raised by the appellants that

respondent No.1/plaintiff has relinquished her 1/3rd

share erred in revisiting the controversy surrounding

relinquishment deed, when the same was not at all

challenged by the respondent No.1/plaintiff. It is in

this background, I am of the view that question of

production of relinquishment deed by defendant No.3

was not at all necessary because its execution was not

at all disputed. On the contrary, the plaintiff has

sought for cancellation of a document. It is a trite law

that right and title passes under registered document

and the title of the transferee remains intact as long

as the document is not set aside by the competent

court of law. The prayer sought by the respondent

No.1/plaintiff at prayer 'B' was rejected and the same

has attained finality. I am of the view that substantial

question of law framed today has to be answered in

the affirmative dehors additional evidence which is

sought to be produced before the court. Even in the

absence of certified copy of registered relinquishment

deed, this court can adjudicate the controversy as

respondent No.1/plaintiff having sought for

cancellation of registered relinquishment deed and

having suffered a decree, even in the absence of

additional documents, this court can adjudicate the

claim of defendant No.3 which was already put to rest

by the trial court.

12. In that view of the matter, the additional

evidence to do substantial justice is taken on record

and consequently, the substantial question of law

framed is answered in the negative.

13. Accordingly, the appeal is allowed by

holding that appellant No.2/defendant No.3 would

succeed to the share of defendant No.1 pursuant to

registered relinquishment deed 04.01.2012. This court

is also of the view that trial court having negatived the

claim of the plaintiff ought to have drawn a

preliminary decree granting 1/3rd share to defendant

No.3 based on registered relinquishment deed which is

not done in the operative portion of the judgment,

though lis was decided.

SD/-

JUDGE EM/MBS/-