Karnataka High Court
H S Avinash vs H R Sathyanarayana on 11 January, 2022
Bench: S.Sujatha, Ravi V Hosmani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2022
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
R.F.A. No.775/2014(PAR)
BETWEEN:
1. H.S.AVINASH
AGED ABOUT 37 YEARS
S/O H.R. SATHYANARAYANA
R/A KARE BAILU VILLAGE
KASABA HOBLI, MUDIGERE TALUK
CHIKMAGALORE-577 101.
2. SMT.H.S.ASHITHA
AGED ABOUT 31 YEARS
W/O PRASHANTH
R/A BANGALORE, C/O M.B.DHARANI
HANUGUNAHALLI
CHIKANAHALLI POST, BELUR.
...APPELLANTS
[BY SMT. SHWETHA ANAND, ADVOCATE (VC)]
AND:
1. H.R.SATHYANARAYANA
AGED ABOUT 60 YEARS
S/O LATE RANGEGOWDA
HANUGUNAHALLI
BELUR TALUK, HASSAN DISTRICT
CHIKKANAHALLI POST-573 116.
2. SMT.H.S.AMEETHA
AGED ABOUT 30 YEARS
2
W/O SANTHOSH, C/O M.B.DHARANI
HANUGUNAHALLI, CHIKKANAHALLI POST
BELUR TALUK
HASSAN DISTRICT-573 116.
...RESPONDENTS
[BY SRI. JWALA KUMAR, ADVOCATE FOR R1 (VC);
SMT. A.R.SHARADAMBA, ADVOCATE FOR R2 (PH)]
THIS RFA IS FILED UNDER SECTION 96 R/W
ORDER 41 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 28.03.2014 PASSED IN
O.S.NO.188/2007 ON THE FILE OF THE I ADDL. SENIOR
CIVIL JUDGE AND JMFC., CHIKMAGALORE, DIRECTING
THE PLAINTIFFS THEREIN TO PAY THE COURT FEE ON
THE MARKET VALUE OF THE PROPERTY INVOLVED IN
THE PARTITION DEED DATED 11.01.1999 I.E.,
RS.38,62,926/- AS PROVIDED UNDER SEC.38 OF THE
KARNATAKA COURT FEES AND SUIT VALUATION ACT,
BY NEXT DATE OF HEARING WITHOUT FAIL.
THIS APPEAL HAVING BEEN RESERVED FOR
JUDGMENT ON 27.08.2021, THIS DAY, RAVI V
HOSMANI J., PRONOUNCED THE FOLLOWING:
JUDGMENT
Challenging judgment and decree dated
28.03.2014 passed by I Additional Senior Civil Judge,
at Chikkamagalur, in O.S.No.188/2007, this appeal
is filed.
2. Appellants herein were plaintiffs no.1 and
2, while respondents herein were defendants no.1
and 2 respectively. Hereinafter parties are referred to
as per their ranking before trial Court.
3. Brief facts as stated are that plaintiffs filed
a suit against defendants seeking re-opening of
partition deed dated 11.01.1999 and for fresh
partition deed and to allot 1/4th share each to
plaintiffs in suit schedule property by metes and
bounds, to put them in possession of their share and
also for accounts and mesne profits etc.
4. The schedule annexed to plaint contained
particulars of immovable properties belonging to joint
family of plaintiffs and defendants, of which fourteen
are agricultural properties, three urban properties
consisting of shopping complex and partially
completed cinema theatre and one house property
situated at Arehalli, Belur.
5. In the plaint, it was stated that schedule
properties were Hindu Joint Family properties of
plaintiffs and defendants and defendant no.1 was
Karta of family. On the pretext of reducing taxes,
defendant no.1, devised a nominal partition deed
dated 11.01.1999, in which non-agricultural
properties like commercial and urban properties
including uncompleted theatre having shops, worth
more than Rs.2.00 crores were shown to the share of
defendant no.1. At the time of taking signature,
plaintiffs were told that actual partition would be
effected later. As partition was nominal, even
thereafter, all parties resided together. Later, when
defendant no.1 started giving pinpricks and during
2007, plaintiff no.1 demanded equal partition and
division of properties by metes and bounds, but was
refused on the ground of earlier partition. It was
stated that defendant no.1 as father, used his
influence to get partition deed dated 11.01.1999,
signed by all parties under undue influence. It was
stated that as partition was not equal, it was
nominal, executed only for reducing taxes etc., and
plaintiffs were not given any share in agricultural
properties.
6. On service of summons, defendant no.1
entered appearance and filed written statement
opposing the suit. It was contended that defendant
no.1 was not karta of family. Plaintiff's assertion of
denial of share in urban/residential/agricultural
properties was disputed. Valuation of properties as
alleged was also denied. Plaintiff's assertion that even
after partition, parties resided together was also
denied. Even assertion that plaintiffs put defendants
in joint and constructive possession of schedule
properties was denied. Existence of uncompleted
cinema theatre opposite to bus stand at Belur town
was admitted. It was stated that partition deed was
executed in presence of witnesses and acted upon as
parties were in possession and in enjoyment of their
respective share of properties by paying property
taxes separately. It was also stated that even plaintiff
no.1 was managing coffee plantation independently.
It was further submitted that partition in question
was by way of a registered partition deed and acted
upon, therefore, plaintiffs were estopped from
questioning it. It was further stated that urban
properties situated at Belur town had suffered
encroachments due to neglect and defendant had to
borrow loans to construct shops to prevent
encroachment. Therefore, their current valuation
could not be used for comparison. It was further
stated that defendant no.1 performed marriages of
defendant no.2 and plaintiff no.2 and borrowed loan
for construction of shops which were not accounted
for by plaintiff.
7. It was also contended that reliefs were not
properly valued and that plaintiff was liable to pay
court fee on total market value mentioned in
registered partition deed. It was lastly contended that
plaintiff had left out some properties sold by him after
partition and also left out Jeep and other movable
properties given to him under partition deed,
therefore, there was non-inclusion of all joint family
properties. On said pleading sought for dismissal of
plaint.
8. Based on pleadings, following issues were
framed:
1) Whether the plaintiffs prove that, the
partition deed dated 11.01.1999 is only
share, nominal, void and unjust and the
same is not binding on them?
2) Whether plaintiff proves that they in joint
and constructive possession of suit
schedule properties?
3) Whether the defendant no.1 proves that,
plaintiffs have obtained their legitimate
share and residing separately?
4) Whether the defendant no.1 proves that,
court fee paid is insufficient?
5) Whether defendant no.1 proves that suit is
bad for non-joinder of other properties,
which are in possession of plaintiffs?
6) Whether the plaintiffs are entitled for re-
opening the partition deed 11.01.1999?
7) Whether the plaintiffs are entitled for
partition and separate possession of their
1/4th share in the suit schedule properties?
8) Whether the plaintiffs are entitled for
accounts?
9) What order or decree?
9. On behalf of plaintiffs, one witness was
examined as PW.1 and exhibits P.1 to P.49 were
marked.
10. Plaintiff no.1 examined himself as PW.1
and stated that plaintiff no.2 was his younger sister,
defendant no.1 was his father and defendant no.2
was also his younger sister. He stated that schedule
properties were joint family properties of plaintiffs
and defendants and defendant no.1 was karta and
commanding by nature. PW.1 further stated that
defendant no.1 by telling them that in order to reduce
tax, execution of partition deed was necessary and
assuring them of regular partition later, forced them
to sign partition deed dated 11.01.1999. As per
partition deed, all valuable commercial and urban
properties were given to defendant no.1 and only
coffee plantation was given to others. PW.1 further
stated that even after registration of partition deed,
defendant no.1 was supervising all properties. It was
specifically stated that as on 11.01.1999, plaintiff
no.2 was still a minor, but showing her as major, her
signature was taken. It was further stated that share
of defendant no.1 was worth more than Rs.2.00
crores, as value of residential and commercial
properties was Rs.550/- per sq.ft, and Rs.750/- per
sq.ft. respectively, while value of coffee plantation was
about Rs.12.00 lakhs per acre, therefore, partition
was unequal. It was nominal and sham.
11. It was further stated that after partition,
defendant no.1 sold standing trees situated on land
allotted to plaintiff no.1, to Sri Ramesh and retained
sale value. It was stated that in fact, parties
continued to reside together and marriage of plaintiff
no.2 was performed on 20.12.2004, out of joint family
funds. Only on 20.05.2007, when defendant no.1
threatened to sell away properties shown to his
share, plaintiffs realised that they were falsely
induced into signing partition deed dated 11.01.1999.
12. In support of oral evidence, plaintiffs also
led documentary evidence. Copies of record of rights
and demand register extracts of properties were got
marked as Exhibits P.1 to P.16. Copy of legal notice
and postal receipt were got marked as Exhibits P.17
and P.18. Copy of impugned partition deed was
marked as Ex.P.19. Certified copy of judgment
passed in O.S.68/1993 was marked as Ex.P.21. Copy
of legal notice issued by H.G. Channegowda was
marked as Ex.P.22. Copy of registered partition deed
dated 01.08.1987, order sheet in RFA no.535/1986
and decree passed in R.A.No.14/1980 were marked
as Exs.P.23 to P.25. Ex.P.27 is copy of Birth
Certificate of plaintiff no.2. Copy of order of Deputy
Commissioner, Chikkamagalur dated 26.02.1999 and
order of Deputy Conservator of Forest along with list
of trees and sketch were marked as Exs.P.28 to P.31.
List of market value of properties and endorsement
issued by the Sub-registrar were marked as Exs.P.36
to P.40. Original sale deed dated 23.10.2000, plaint
in O.S.No.29/2008, copy of agreement between
defendant no.1, plaintiff no.1 with B.N. Ramesh were
marked as Exs.P.41, P.46 and P.47. Copies of plaints
in O.S.No.188/2001 and O.S.No.199/2000 were
marked as Exs.P.48 and P.49 respectively.
13. During cross-examination of PW.1, it was
elicited that after death of their grandfather,
scheduled properties were mutated in favour of
Defendant no.1; that plaintiff no.1 was born on
10.05.1974 and defendant no.2 was born during
1978, plaintiff no.2 was born on 21.03.1981, etc. He
further stated that Sri H.V. Thimmegouda, son of his
grandfather's brother, was a reputed advocate of
Hassan Bar and a family elder and that most of
properties inherited by his father were coffee
plantations and only an extent of 39 guntas was wet
land. PW.1 admitted that there was an uncompleted
cinema theatre in the land opposite to Bus-stand,
Belur, which had ten shops, in possession of tenants
and reason for not completing construction of cinema
theatre building was, litigation against tenants.
14. By confronting PW.1 with partition deed
dated 11.01.1999, it was got marked as Ex.D1. PW1
admits that himself, his sisters and defendant no.1
had signed Ex.D1 and that it was also signed by
Sri H.V. Thimmegouda and his uncles
H.V. Shashidhar, Prasanna and Keshavgouda as
witnesses. He further admitted that he was allotted
23 acres of coffee plantation; 13 acres 10 guntas was
given to sister - Asmita; 13 acres and 15 guntas to
his other sister - Ashita, while defendant no.1 took
13 acres of coffee plantation, 39 guntas of wet land
and half-constructed cinema theatre and shops as
well as residential house at Hanugavanahalli.
15. PW. further admits that in terms of
Ex.D1, names of respective parties were mutated in
revenue records. It was also elicited that he was
residing in a house constructed in Karebail estate by
spending Rs.3 to 4 Lakhs, in 2003. Though he claims
to have got money for construction by sale of property
of his mother and admits that he borrowed loan from
Canara Bank by mortgaging properties fallen to his
share as per Ex.D1. He also admits to have given
application along with his sisters and defendant no.1
for change of khata in terms of Ex.D1.
16. PW.1 also admitted that after 2003, when
he was looking after his share of coffee plantation, he
got replaced earlier uneconomical coffee plantation
with new plantation. He admitted that he had not
shared income from coffee estate with defendant no.1
and was paying land revenue separately. He further
admits that prior to Ex.D1 - partition, defendant no.1
sold standing trees to Sri Ramesh. Though he
admitted that his sister Ashita studied in
Poornaprajna School, Belur, but denies certificate
issued by said school as stating her correct date of
birth.
17. The defendants examined three witnesses.
Defendant no.1 was examined as DW.1. In his
deposition, DW.1 admitted relationship with plaintiffs
and defendant no.2 and nature of suit properties as
joint family properties, but denied plaint averments
regarding partition deed dated 11.01.1999 as
nominal etc. It was stated that schedule properties
had fallen to share of his father in partition between
himself and his brothers and after death of his father
in 1990, as his only son, he inherited properties and
was managing them. He stated that after completion
of SSLC in 1991, plaintiff no.1 was assisting him in
the estate, but from 1996, he was residing separately.
18. He further stated that plaintiff no.1 was
born on 10.05.1974, plaintiff no.2 on 22.10.1980 and
defendant no.2, in 1978. As plaintiff no.1 demanded
partition in 1998, a panchayat was convened in
presence of Shri H.V. Thimmegowda, (advocate) and
other family elders and after deliberation, partition
deed dated 11.01.1999 was executed. At that time,
plaintiff no.2 and defendant no.2 were unmarried.
Partition was executed in accordance with law and
therefore binding on them. It was acted upon and
khata was also changed to their respective names.
Thereafter, plaintiff no.1 was looking after his share
of properties as well as that of his sister. It was
specifically stated that out of 3 acres 16 guntas in
Sy.no.94, allotted to him, plaintiff sold an extent of
01 Acre 20 guntas and 1 acre 1 gunta in Sy no.791,
to Smt. A.G. Vandana, under sale deed dated
23.10.2000 for consideration of Rs.3,15,000/-. It was
further stated that plaintiff constructed a residential
bungalow in one of properties allotted to him,
spending more than Rs.10,00,000/- availing financial
assistance from Canara Bank, Mudigere.
19. DW.1 further stated that one of
commercial properties allotted to him in partition was
an uncompleted theater situated opposite to KSRTC
bus stand, Belur. He stated that though his
grandfather had begun construction, it could not be
completed due to litigation. Therefore, he put-up
temporary sheds in the vacant space in front of
theater to prevent outsiders from trespassing. He
further stated that on account of litigation, he was
not getting agreed rent from property. It was alleged
that though partition was lawful, on instigation of
persons inimical to his interests, plaintiffs had filed
the suit.
20. In support of his deposition, DW.1 got
marked certified copy of sale deed dated 23.10.2000
as Ex.D.2, copy of mutation order MR No.7/2000-
2001 as Ex.D.3 and copy of school certificate of
plaintiff no.2 as Ex.D.4.
21. In his cross-examination, photograph of
an uncompleted cinema theater was confronted and
got marked as Ex.P.42, as he admitted it. Likewise,
copies of photographs of house in Hanuganahalli
were marked as Exs.P.43 to P.45. It was elicited that
portion allotted to his share contained coffee
plantation, residential house and haystack. To a
suggestion that plaintiffs were not given house and
haystack in partition, DW.1 stated that it was given
to plaintiff no.1. DW.1, does not deny market value of
shares of properties. It was admitted by DW.1 that on
05.12.2008, he had entered into an agreement for
sale of half-constructed cinema theater for Rs.1.25
crores of rupees. He admits that he was paying land
revenue upto 2007 in respect of lands allotted to
plaintiff no.2 and defendant no.2. DW.1 admits that
he was prosecuting litigation in respect of shop
premises in Belur. It was also specifically admitted
that Shree Medicals was paying monthly rent of
Rs.9,000/-. He also admits receiving monthly rent of
Rs.2,000/- from one of tenants, but denies receiving
Rs.5,000/- as rent from ABC company.
22. DW.1 admits for having sold timber to
Shri Ramesh and also about filing case against him
for dishonor of cheque issued towards purchase price
of timber. DW.1, however states that he does not
remember date on which panchayat met and whether
deliberations were reduced into writing. He also
states that he does not remember whether panchayat
included his brothers Suresh and Sundresh and was
unable to tell names of panchayatdars. It is elicited
that along with advocate Thimmegowda, he
instructed Karanth for preparation of Ex.D.1. He
denies suggestions that panchayatdars were not
provided documents regarding suit schedule
properties and earlier partition that took place
between his grand-father and his brothers, was not
given to them.
23. It is elicited that upto 2007, DW.1 was
managing properties of his daughters and maintained
accounts. He also admits that no provision was made
towards maintenance of his wife in Ex.D.1. He
however denies suggestion that in order to sell
theatre property, he got Ex.D.1 prepared in haste and
secured signatures of plaintiffs by making them
believe that it was necessary for the purposes of
saving tax.
24. Copy of sale deed dated 23.10.2000 was
got marked as Ex.D.2. Copy of mutation order in
M.R.No.7/2000-01 was marked as Ex.D.3, while
school certificate of plaintiff no.2 was got marked as
Ex.D.4.
25. Sri H.A. Prasanna, cousin of defendant
no.1 and uncle of plaintiffs was examined as DW2.
He deposed that during December 1998, when
plaintiff no.1 demanded partition, panchayat was
held in the house of Sri. Thimmegowda, in which
plaintiffs and defendants participated. In the
presence of Sri. H.V.Thimmegowda, advocate and
Panchayatdars deliberations were held. As per
settlement arrived, Ex.D.1 - partition deed was
prepared and executed. It was also registered with
Sub-registrar, Mudigere. DW.2 further stated that
after partition parties were in possession of their
respective shares of property. DW.2 further stated
that he was one of the witnesses to Ex.D.1 - partition
deed. DW.2 was not cross-examined.
26. Sri. H.V. Thimmegowda, advocate was
examined as DW.3. Even DW.3 was also a cousin of
defendant no.1. He deposed that during 1998, when
plaintiff no.1 demanded partition, panchayat was
held in his house and after participation and
discussion between plaintiffs and defendants; Ex.D.1
came to be signed and registered. DW.3 stated that
he was one of attesting witnesses to deed of partition.
Cross-examination of DW.3 is as follows:
27. DW.3 admits suggestion that affidavit
examination-in-chief was prepared as per his
instructions. In the affidavit statement that
panchayat was held in the house of defendant no.1
was struck off and corrected as held in his house. He
denies suggestion that no deliberations either in the
house of defendant no.1 or in his house were held.
He admits that deliberations were not reduced into
writing. He also does not remember date and how
many persons were present in panchayat. He denies
a suggestion that no such panchayat was held.
Though, DW.3 admitted that he did not ascertain
total extent of properties held by the family, he stated
that the family held 63 acres of coffee estate and 6
acres of agricultural lands, a residential building in
Cheekanahalli and an uncompleted cinema theatre in
Belur town. He admits that valuation of properties
was not considered by panchayat. He states that he
did not decide shares of parties or told them that
female heirs would also be entitled for equal share.
He however states that he had asked them whether
they understood and agreed for shares allotted to
them and noted their approval. DW.3 states that he
does not know whether properties as per shares were
measured and parties were put in possession.
28. It is elicited from DW.3 that normally
when there were more than one house joint family
properties consist of two residential premises both
are not allotted to same person. To a suggestion that
defendant no.1 entered into agreement of sale in
respect of half-constructed cinema theatre at Belur
for Rs.1.35 crores, DW.3 admits same, but clarifies
that it was much after execution of partition deed.
DW.3 admits suggestion that plaintiff had developed
lands that had fallen to his share.
29. On consideration of above evidence, trial
Court answered issues no.1, 2, 6, 7 in negative,
issues no.3 to 5 in affirmative and issue no.9 by
dismissing suit with costs. Assailing said judgment
and decree, plaintiffs are in appeal.
30. Smt. Shwetha Anand, learned counsel for
plaintiffs-appellants submitted that impugned
judgment and decree was contrary to facts of case
and evidence on record. It was submitted that trial
court failed to appreciate evidence on record in
proper perspective. Learned counsel submitted that
as on 11.01.1999, plaintiff no.1 was 23 years of age,
but plaintiff no.2 was a minor. They were under care
and control of defendant no.1, who in the position of
their father was dominant. They lacked proper
guidance as their mother was not residing with them.
Therefore, trial court committed error in holding that
plaintiffs agreed to accept grossly unequal share
during partition. It was further submitted that
impugned partition deed did not mention that it was
executed on demand of plaintiffs. Therefore, it has to
be presumed that there was no occasion for effecting
partition when plaintiff no.2 was still a minor and
share allotted were not in accordance with provisions
of Hindu Succession Act, 1956.
It was further submitted that valuable
properties were allotted to share of defendant no.1,
while value of share allotted to plaintiffs was paltry in
comparison which indicated that partition effected
was a sham. It was submitted that partition was
neither equal nor equitable. It was further submitted
that partition was not by metes and bounds and that
revenue records were mutated only to give effect to,
purpose for which partition deed was devised, namely
for saving tax. It was further submitted that value of
properties were not either mentioned or taken into
account at time of allotment of shares and
consequently shares allotted were lopsided against
plaintiffs. It was submitted that allotment of house
property and semi-constructed building having 10
shops fetching rent was admitted by defendant no.1.
It was submitted that existence of litigation, that too
for eviction of tenants would not seriously devalue
the property. By attributing unnecessary weightage to
litigation, trial Court sustained unequal partition.
The fact that plaintiffs were under care and custody
of defendant no.1, at time of execution of partition
deed and defendant was in dominant position was
not taken note of by trial court. It was further
submitted that as earlier coffee plantation was spent
and continuing it was commercially unviable,
plaintiffs got new plantation done. Based only on said
fact, trial court concluded that plaintiff no.1 accepted
the partition and that it was acted upon.
31. It was also contended that trial court was
influenced by appearance of Senior Advocate of
Hassan Bar, who was also State Bar Council Member
as DW.3. It blindly accepted his deposition that he
was one of panchayatdars for effecting partition
between plaintiffs and defendants. Learned counsel
submitted that there was contradiction between
deposition of DW.1, DW.2 and DW.3 regarding
composition of panchayat.
32. In support of her contentions that in
respect of variation in date of birth between entry in
School records and Government records, entry in
School register to be discarded, learned counsel relied
upon following decisions:
i) (2010) 9 SCC 209, in Madan Mohan
Singh and others vs. Rajni Kant and
another.
ii) (2009) 7 SCC 283, in CIDCO vs.
Vasudha Gorakhnath Mandevlekar.
33. On the other hand, Shri Jwalakumar for
defendant no.1 and Smt. A.R.Sharadamba, advocate
for defendant no.2 supported judgment and decree
and opposed appeal.
34. It was submitted that though initially
plaintiff no.2 was arrayed as a defendant no.3, later
on transposed as plaintiff no.2. Main ground of
challenge to partition deed was that defendant no.1
using his dominant position as father and karta of
the family, had got plaintiffs to sign partition deed by
telling them it was required to save payment of huge
Taxes. Partition was also challenged on the ground of
being unequal and executed when plaintiff no.2 was
still a minor. However, plaintiff no.2 did not enter
witness box. It was submitted that though allegation
of fraud was made, same was not substantiated by
proper pleadings as mandated under the provisions
of Order VI Rule 4 of CPC. It was further contended
that absolutely no evidence was led to substantiate
regarding properties or income attracting huge tax.
Even no evidence was led to substantiate allegation
against defendant no.1 that he had obtained their
signatures to Ex.D.1 on false assurance that a
regular and equal partition would be effected later.
35. In support of his contentions learned
counsel relied upon following decisions:
i) (1976) 1 SCC 214 in Rathnam
Chettiar and others vs. M.Kuppuswami
Chettiar and others, for the proposition
that partition effected between member of
Hindu Undivided Family cannot be
reopened unless it is shown to be
obtained by fraud, coercion,
misrepresentation or undue influence,
requiring strict proof of facts.
iii) AIR 1984 NOC 237 (KAR), in Bidari
Basamma (deceased by LRs) and others
vs. Kanchikeri Bidari Sadyojathappa
and others, for the proposition that mere
allegation of partition being a sham to
avoid taxes would not be sustainable as
mere sham document would not help
avoid tax and also for the proposition that
coparceners staying together and
propositus managing properties even after
partition would be immaterial.
iv) (1981) 1 Kar.L.J.174, in Madegowda vs.
Madegouda and another, for the
proposition that unless difference in
valuation of properties shocked the
conscience of the Court, benefit of
illustration (c) to Section 16 of Indian
Contract Act would not be available.
36. From the above, it is not in dispute that
parties constitute Hindu joint family and schedule
properties were their ancestral joint family properties.
It is not disputed that partition deed was executed on
11.01.1999. While, plaintiffs allege that partition was
unequal, nominal and result of undue influence and
fraud, defendants contend that partition deed was
executed in accordance with law after holding
deliberations in the presence of panchayatdars and it
was not only registered, but also acted upon and
therefore, was binding on them. Defendants denied
allegations of undue influence or fraud.
37. Therefore, following points that would
arise for our consideration are:
i) Whether trial court erred in
confirming partition even when
unequal shares were allotted to
plaintiffs?
ii) Whether trial court erred in
holding that no fraud or undue
influence was committed by
defendant no.1?
iii) Whether trial court committed
error in relying upon school
certificate - Ex.D.4 ignoring birth
certificate - Ex.P.27 to hold that
plaintiff no.2 had attained
majority at the time of execution
of partition deed?
38. While passing impugned judgment and
decree, trial court clubbed issues no.1 to 3. It took
note of evidence placed by parties on record. It
observed that there was no dispute about suit
properties being ancestral joint family properties of
parties. It also observed that there was dispute about
purpose of partition deed dated 11.01.1999. Main
ground of plaintiffs challenge is that there was no
regular partition, partition under the deed was
unequal, therefore, it was nominal, executed only for
reducing tax. Plaintiffs also contended that defendant
no.1 was their father and being in a dominant
position, obtained their signatures to the deed by
assuring them that regular partition would be
effected later. Trial Court also took note of plaintiffs
assertion that even after execution of partition deed
dated 11.01.1999, parties continued cohabitation.
Later on when plaintiff demanded partition and
defendant denied same on the ground of partition
dated 11.01.1999, they realized that fraud was
committed on them.
39. Insofar as allegation of undue influence
and fraud, trial court referred to evidence of
defendants, wherein he examined himself as DW.1
and also examined two witnesses to Ex.D.1 - partition
deed as DW.2 and DW.3 respectively. Both deposed
that as plaintiff no.1 demanded partition during
1998, panchayat was convened in the house of DW.3.
After deliberation and on arrival of settlement,
partition deed dated 11.01.1999 was executed by all
the parties. Trial court took note of the fact that
DW.3 was also an elder member of the family, who
facilitated partition. Trial court observed that despite
cross-examining defendant witnesses, plaintiff failed
to discredit their testimony. On said observation, trial
court rejected challenge on the ground of partition
being nominal. It also held that plaintiffs failed to
establish that partition deed was executed to save
tax, as no evidence was led to show extent of tax
applicable and saved. Referring to decision in Bidari
Basamma's case (supra), it held that challenge to
partition as being nominal for saving tax etc., would
not hold good as a nominal deed would not be useful
for avoiding statutory dues.
40. Trial court held that plaintiff admitted
that they along with defendants had applied for
change of khata in terms of impugned partition deed.
It also observed that plaintiff admitted he was
independently managing coffee plantation fallen to
his share and developed it and that he constructed a
house in the said plantation borrowing loan from
Canara Bank, Mudigere Branch by mortgaging
immovable properties fallen to his share. In view of
said admission, trial court held that partition was
genuine and had been acted upon.
41. Insofar as challenge on the ground of
fraud and partition being unequal, trial court held
that allegation of fraud was not properly
substantiated by adequate pleadings as required
under Order VI Rule 4 of CPC. Trial court further
held that mere allegation of unequal partition would
not lead to a conclusion that it was induced by fraud
or misrepresentation. Relying upon decision in
Madegowda's case and also Rathan Chettiar's case
(supra), it held that allegation of fraud and
misrepresentation had to be established by clear
pleadings. It held that mere allegation of unequal
share does not take away bindingness of partition,
where it was executed willingly.
42. Trial court also addressed main grievance
of plaintiffs viz., valuable commercial and urban
properties were given to share of defendant no.1,
while less valuable properties were allotted to
plaintiffs. It observed that defendant established
existence of litigation with regard to said properties
and subsequent increase in value would not be a
justification for reopening partition.
43. Insofar as contention that at the time of
execution of impugned partition deed, plaintiff no.2
was still a minor with reference to date of birth
mentioned in birth certificate-Ex.P.27, trial court
referred to school certificate - Ex.D.4, indicating her
date of birth as 22.10.1980, as per which, she would
have attained majority as on 22.10.1998. It also took
note of the circumstances existing at the time of
execution of partition deed. It held that partition was
not only effected after deliberation between parties
before panchayatdars, but it was also registered
which would have required plaintiff no.2 to have
appeared before Sub-Registrar and that plaintiff no.2
was an educated lady. Trial court also drew adverse
inference against plaintiff no.2 not stepping into
witness box. At the same time, trial court also took
note of the fact that plaintiffs did not allege any
malafide on the part of defendant no.1, that he was
addicted to any vices.
44. Yet another factor taken note of by trial
court was the fact that plaintiff no.1 admitted during
cross - examination that he had sold 1 acre 20
guntas of land in Sy.no.94 and 1 acre 1 guntas of
land in Sy.No.79/1 to Smt. A.G.Vandana, under
Ex.D.2 - sale deed, but plaintiff failed to include said
properties into suit schedule. Trial court referring to
admission of plaintiff no.1 that he had sold portion of
property to Smt.A.G. Vandana, came to a conclusion
that suit was bad for non-joinder of all joint family
properties.
45. Trial court also held that plaintiffs
contention that after execution of partition deed,
defendant no.1 sold standing trees in the land that
had fallen to share of plaintiffs, would not hold as
plaintiff no.1 admitted that such sale was in terms of
an agreement between plaintiff, defendant no.1 and
Ramesh and that plaintiff had received sale
consideration.
46. In view of its finding on issues no.1 to 3,
and 5, trial court answered issue nos. 6 to 8 in
negative and dismissed the suit.
47. On a careful consideration of the material
on record, it is seen that though, plaintiffs allege
fraud and undue influence, they have merely
examined plaintiff no.1. As noted by trial court, the
only pleading to support said allegation is an
assertion that defendant no.1 told them Ex.D.1 was
nominal executed only for saving tax and that regular
partition would be executed later. The Hon'ble
Supreme Court in the case of Rathnam Chettiar
(supra) has held that allegations of fraud, coercion
and undue influence would require strict proof of
facts and based on mere allegations partition effected
cannot be reopened. The only evidence of plaintiffs is
self-serving statement. On the other hand,
defendants have examined two of attesting witnesses
to impugned partition deed. Both DWs.2 and 3 stated
that when plaintiff no.1 demanded partition in 1998,
panchayat was held, after discussion and settlement
of terms, Ex.D.1 was signed. They specifically stated
that they are witnesses to Ex.D.1. While DW.2 has
not been cross-examined, there are no suggestions
put to DW.3 about any threat, coercion, inducement
or fraud being committed on plaintiffs. In fact, there
are no suggestions or elicitation regarding defendant
no.1 making any assurance to plaintiffs that a
regular partition would be effected later.
48. On careful examination of suggestions, it
has to be held that Ex.D.1 was drawn after
deliberation and discussion and parties executed
same understanding its purpose. Ex.D.1 is in fact
registered. Same would rule out possibility of fraud or
false assurance.
49. In order to substantiate challenge to
partition on the ground of shares being unequal,
plaintiffs have stated that value of share allotted to
defendant no.1 was worth more than 2.00 Crores.
They sought to substantiate same by producing
valuation of properties issued by Sub-registrar. But,
admittedly, property allotted to defendant no.1 was
under litigation. PW.1 admitted that grand-father of
defendant no.1 had begun construction of theater,
but was unable to complete construction due to
litigation. Even father of defendant no.1 or defendant
no.1 himself failed to complete construction. DW.1
deposed that he was not getting agreed rents from
tenants. In fact, Ex.P.21 produced by plaintiffs
corroborate same. Indeed, it is not in dispute that
plaintiff no.1 was allotted 26 acres of coffee
plantation, while plaintiff no.2 was allotted 13 acres,
while defendant no.1 and 2 were allotted 13 acres of
coffee plantation each. Defendant no.1 deposed that
marriages of both plaintiff no.2 and defendant no.2
were performed by him out of joint family funds,
which is admitted by PW1 also. In any case, the
Hon'ble Supreme Court in the case of Smt.
Krishnabai Bhritar Gapatarao Deshmukh Vs.
Appasaheb Tulajaramarao Nimbalkar and others
reported in (1979) 4 SCC 60 and in the case of
Parvathamma and others vs. Venkatsivamma and
others reported in (2016) 15 SCC 463 held that
mere existence of unequal shares does not lead to
inference of fraud or coercion. The tenor of cross-
examination of defendant witnesses by the plaintiff
does not lead to an inference that the said ground of
challenge has been seriously pursued nor
established. The fact that PW.2 or defendant no.2 did
not step into witness box to stake their claim against
unequal partition would also justify the finding of the
trial court upholding partition.
50. PW1 in his cross-examination has
admitted that he along with plaintiff no.2 and
defendants had given application for mutation of
revenue entries in terms of impugned partition, that
he was managing coffee plantation fallen to his share
and had also developed same. PW1 has further
admitted that he has not shared income from coffee
estate with others. It has also been elicited from him
that for construction of house in coffee estate, PW1
had borrowed loan from Canara Bank, Mudigere
Branch by mortgaging immovable properties that had
fallen to his share in terms of Ex.D.1 - partition. It is
also elicited that PW1 sold some portion of properties
that had fallen to his share in partition in favour of
Smt. A.G. Vandana under Ex.D.2 - sale deed, which
were not made part of suit schedule. PW1 admitted
that signature of other members of joint family were
not taken and sale consideration was received by him
alone. In view of said admission, trial Court answered
issue no.5 in affirmative. Above admissions would
amply justify finding of trial Court that partition deed
had been acted upon and hence plaintiffs would be
estopped from questioning same.
It is also to be noted that PW1 was unable to
clarify about tax liability both prior to partition and
post partition. Therefore, thrust of plaintiffs case that
defendant no.1 induced them to sign Ex.D.1 on the
ground that it was required to save tax, would loose
ground. There are no suggestions or elicitations with
regard to tax incidence from any of defendant
witnesses. Insofar as submission that there is
contradiction regarding composition of panchayat as
deposed by defendants witnesses, it is seen that
DWs.1 to 3 have consistently stated that panchayat
met at the house of DW.3 in the presence of plaintiffs
and defendants. None of them stated that DW.3 was
also member of the panchayat. Evidence would
indicate that Ex.D.1 was executed in his presence.
DW.3 was 80 years of age at the time of deposition.
Therefore, his deposition that he does not remember
names of panchayatdars would not seriously dent
evidentiary value of his deposition. Therefore, trial
Court would be justified in rejecting said ground of
challenge.
51. The findings of trial Court being with
reference to evidence on record and conclusions
drawn being just and proper cannot be termed as
perverse or suffering from material irregularity.
Therefore, there are no good or sufficient grounds to
interfere. Points no.1 and 2 are answered in negative.
52. Insofar as, challenge to partition on the
ground that plaintiff no.2 was minor at the time of
partition, both parties have led evidence to establish
age of plaintiff no.2 as on date of execution of Ex.D.1.
Plaintiff No.2 has not entered into witness box. As per
Ex.P.27 date of birth certificate, plaintiff no.2 was
born on 22.03.1981 i.e., short of one month eleven
days to attain age of majority. Defendant has
produced school certificate - Ex.D.4 indicating her
date of birth as 22.10.1980 which would indicate that
she would have attained age of majority on
22.10.1998. Ex.D.1 is executed on 11.01.1999.
Admittedly, both plaintiffs are educated. Trial Court
has not only considered the said factor, it has also
considered circumstances under which Ex.D.1 was
executed. As held above, Ex.D.1 was executed after
due deliberation in the presence of parties and family
elders. There is no evidence to substantiate undue
influence or fraud. Under the circumstances merely
on the ground that plaintiff no.2 was short of few
days for attaining age of majority would not in any
case be sufficient to upset a validly executed
partition. Therefore, finding of trial Court upholding
Ex.D.1 - partition deed does not call for interference.
Point no.3 is also answered in negative.
53. In the result, we pass following:
ORDER
Appeal is dismissed.
No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
Psg*/bvk
