Karnataka High Court

Siddappa S/O Late Lingappa vs Sakamma W/O Shivamallappa on 6 June, 2022

Bench: S.R.Krishna Kumar

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     IN THE HIGH COURT OF KARNATAKA, BENGALURU

         DATED THIS THE 6TH DAY OF JUNE, 2022

                           BEFORE

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                R.F.A.NO.792 OF 2006 (PAR)
BETWEEN

SIDDAPPA
S/O LATE LINGAPPA
AGED ABOUT 54 YEAS
R/AT TAGADUR, D.K HUNDI,
NANJANGUD TALUK
MYSORE DISTRICT-571 001
                                             ...APPELLANT
(BY SRI.VICTOR MANOHARAN, ADVOCATE)

AND

1.     SAKAMMA
       W/O SHIVAMALLAPPA
       AGED ABOUT 46 YEARS
       R/O BULLIJI, GATTE MOLE,
       BIJLIPURA HOBLI, MALAVALLI TALUK
       MANDYA DISTRICT-571 401

2.     BHAGYA
       AGED ABOUT 42 YEAS
       W/O SIDDALINGAPPA
       R/AT BEHIND RAMALINGESWARA HIGH SCHOOL
       GANESHNAGAR, N.R. MOHALLA
       MYSORE-571 001

3.     THAYAMMA
       AGED ABOUT 48 YEARS
       W/O MANJUNATH
       NEW HOUSING BOARD,
       NAMIHALLI CROSS, CHANNARAYAPATNA
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      HASSAN DISTRICT-573 201
4.    SHIVAMMA, MAJOR
      W/O LATE LINGAPPA
      R/AT TAGADUR, NANJANGUD TALUK
      MYSORE DISTRICT-571 001

5.    NAGAPPA
      AGED ABOUT 52 YEARS
      S/O LATE LINGAPPA

6.    CHINNASWAMY
      AGED ABOUT 50 YEARS
      S/O LATE LINGAPPA

7.    BASAVARAJ
      AGED ABOUT 51 YEARS
      S/O LATE LINGAPPA

8.    MALLESAIAH
      AGED ABOUT 41 YEARS
      S/O LATE LINGAPPA

      RESPONDENTS 5 TO 8 ARE
      R/AT TAGADUR, D.K HUNDI,
      NANJANGUD TALUK
      MYSORE DISTRICT-571 001
                                          ...RESPONDENTS

(BY SRI ABUBACKER SHAFI, ADVOCATE FOR R1 TO R4
    R5 TO R8 SERVED)
                           *****

      THIS APPEAL IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 22.12.2005 PASSED
IN O.S.NO.138/2000 ON THE FILE OF THE CIVIL JUDGE (SR. DN)
AND   JMFC,   NANJANGUD,    DECREEING    THE     SUIT   FOR
DELCARATION AND SEPARATE POSSESSION AND ETC.


      THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                           JUDGMENT

This appeal by defendant No.1 in O.S.No.138/2000 is

directed against the impugned judgment and decree dated

22.12.2005 passed by Civil Judge(Sr.Dn.) and JMFC,

Nanjangud (for short "the trial Court"), whereby the said suit

for partition and separate possession filed by respondent

Nos.1 to 4-plaintiffs against the appellant-defendant No.1 and

respondent Nos.5 to 8-defendant Nos.2 to 5 was decreed by

the trial Court.

2. Heard learned counsel for the appellant, learned

counsel for the respondents and perused the material on

record including the impugned judgment and decree.

3. A perusal of the material on record will indicate

that respondent Nos.1 to 4-plaintiffs filed the aforesaid suit for

partition and separate possession of their 4/10th share in the

suit schedule properties and for other reliefs. In the said suit,

the appellant herein was arrayed as defendant No.1 and he

contested the suit. So also, respondent Nos.6 to 8 who were

arrayed as defendant Nos.3 to 5 also joined the appellant in

contesting the suit.

4. Pursuant to the aforesaid pleadings, the trial

Court framed the following issues:

1. Whether the plaintiffs prove that the suit schedule properties are the self acquired properties of late Lingappa?

2. Whether the 1st defendant proves that suit item Nos.1, 2, 3 and 8 are the self acquired properties of late Lingappa and all other suit properties are the ancestral properties?

3. Whether the plaintiffs proves that the plaintiffs and the defendants are in joint possession of the suit properties?

4. Whether the 1st defendant proves that the plaintiffs cannot seek partition of suit item No.8 as contended in para 13 of the written statement?

5. Whether the plaintiffs are entitled for their shares in the suit schedule properties?

6. Whether the plaintiffs are entitled for a decree as prayed for?

7. To what Order or decree?

Additional Issues framed on 7.1.2004:-

1. Whether the 1st defendant proves that on 13.11.1998 1st defendant and his brothers and their mother the 4th plaintiff got divided the joint family properties and the 4th plaintiff has got her share?

2. Whether the 1st defendant proves that he has performed the marriage of plaintiffs 1 and 2 by borrowing loan of Rs.75,000/- and hence, the plaintiffs cannot claim share in the suit schedule properties as contended in para 12(b) of the written statement?

5. On behalf of the plaintiffs, PWs.1 to 3 were

examined and Exs.P-1 to 8 documents were marked . So

also, the defendants examined themselves as DWs.1 to 3 and

Exs.D-1 to 3 documents were marked.

6. After hearing the parties, the trial Court

proceeded to answer the aforesaid issue Nos.1 and 2 in the

negative, thereby rejecting the claim of the plaintiff that the suit

schedule properties are the self-acquired properties of late

Lingappa and that defendant No.1-appellant herein had failed

to prove that the suit item Nos.1, 2, 3, and 8 are the self-

acquired properties of late Lingappa and that all the suit

schedule properties are ancestral properties. While dealing

with Issue No.3, the trial Court came to the conclusion that the

plaintiffs and defendants are in joint possession and

enjoyment of the suit schedule properties. So also, the

contention of the appellant-defendant No.1 that the plaintiffs

cannot seek partition of suit item No.8 of the suit schedule

properties as contended in para 13 of the written statement

was rejected by the trial Court, which answered issue Nos.5

and 6 in favour of the plaintiff.

7. A perusal of the impugned judgment and decree

will also indicate that the additional issues in relation to proof

of the alleged partition dated 13.11.1988 set up by the

appellant-defendant No.1 as well as his specific contention

that he performed marriages of the plaintiff Nos.1 and 2 by

borrowing loan of Rs.75,000/- and consequently, cannot claim

share in the suit schedule properties was negatived by the trial

Court. Under these circumstances, the trial Court proceeded

to decree the suit in favour of the plaintiffs declaring that they

are entitled to 4/10th share in the suit schedule properties and

that they are entitled to partition and separate possession of

the same.

8. Aggrieved by the impugned judgment and decree

passed by the trial Court, defendant No.1 is before this Court

by way of the present appeal.

9. In addition to reiterating the various contentions

urged in the Memorandum of Appeal and referring to various

documents produced by the appellant, learned counsel for the

appellant submits that the impugned judgment and decree

passed by the trial Court in coming to the conclusion that there

was no partition between the parties in terms of Ex.D-1 is

wholly incorrect and contrary to the material on record. It is

also contended that the material on record clearly establishes

the various contentions and defence put forth by the

defendants are incorrect and deserves to be set aside. It is

further contended that the impugned judgment and decree

passed by the trial Court proceeds on assumptions and

presumptions and is based on surmises and conjectures and

the same deserves to be set aside by this Court.

10. Per contra, learned counsel for the respondents

would support the impugned judgment and decree passed by

the trial Court and also submits that there no merit in the

appeal and that the same is liable to be dismissed.

11. The following points arise for my consideration in

this appeal:

(i) Whether the appellant-defendant No.1 has established that there was partition between the parties on 13.11.1998 in terms of Ex.D-1 as contended by the appellant?

(ii) Whether the impugned judgment and decree passed by the trial Court warrants interference in the present appeal?

Re- Point No.(i)

12. The material on record discloses that it is the

specific contention of the appellant-defendant No.1 that the

suit schedule properties were partitioned and divided between

him, his brothers and their mother (Plaintiff No.4 - Shivamma).

In order to establish the said contention, defendant No1. has

examined himself as DW-1 and two witnesses were examined

as DWs-2 and 3.

13. After considering the pleadings and evidence of

the parties, the trial Court has taken into account the

undisputed fact that Ex.D-1 was unregistered and insufficiently

stamped document, which was inadmissible in evidence in

order to prove the factum of partition as alleged by the

appellant-defendant No.1. The trial Court has also taken into

account subsequent conduct of the parties after 13.11.1988

and has recorded categorical finding of the fact that they have

not established the factum of partition as contended by him,

the trial Court has also considered the oral and documentary

evidence in order to come to the conclusion that the appellant

had failed to adduce legal and acceptable evidence to

establish that he had raised loan of Rs.75,000/- for the

purpose of marriage of the plaintiff Nos.1 to 3. It is relevant to

state that plaintiff Nos.1 to 3, who are the daughters and

sisters of defendant No.1 are not parties to the aforesaid

alleged partition and even this circumstance is sufficient to

show that the alleged palupatti was not binding upon plaintiff

Nos.1 to 3. The trial Court recorded the following finding:

"11. Issue No.4:- It is stated by the 1st defendant in the written statement that the plaintiffs are not entitled for partition in the item No.8 is the house property.

Merely because of marriage of plaintiffs 1 to 3 by raising loans to the extent of Rs.75,000/- got performed marriage of plaintiff Nos.1 to 3, even though they are residing the house of their husband, the plaintiff Nos.1 go 3 are entitled for the partition and separate possession of the suit schedule property, but the defendants 1 to 5 have not made any efforts for their marriage, the plaintiff No.4 is their own mother has raised loan of Rs.75,000/- from others and got married the daughters. Therefore, at this stage the evidence of PWs.1 to 3 reveal that the plaintiffs are entitled for the partition and separate possession of the suit schedule item No.8 also, but the defendants contention is that they cannot seek partition of the item No.8 also. On the other hand, the learned counsel for the plaintiff has argued before the Court that for the partition of the properties equally and not only in item Nos.1 to 7, but also in item No.8, because of neglect on the part of the defendant Nos.1

to 5. In that regard, the learned counsel for the defendants have relied upon the several decisions contending that there was already partition of the family properties as per the Ex.D.1 which is unregistered Palu patti, even though it is reliable documents and he has mainly relied upon the ruling reported in ILR 2002 Kar. Page 3613 which reads as follows:-

INDIAN REGISTRATION ACT, 1908 (CENTRAL ACT NO.16 OF 1908) - SECTION 49 AND KARNATAKA STAMP ACT, 1957 (KARNATAKA ACT NO.22 OF 1957) -

SECTION 35 - There is no total prohibition for receiving unregistered documents in evidence, Un-Registered Partition Deed could be received in evidence to prove any collateral transaction.

He has also relied upon AIR 1995, SC page 1728 which reads as follows:-

(B) Evidence Act (1 of 1872), S. 35 - Factum of partition between two brothers - Proof - Entries in Records of Rights maintained inofficial course of business - Is relevant piece of evidence. Hindu Law - Partition - Proof.

(c). Hindu Law - Partition - Not necessary that partition should be effected by registered

partition deed. Under the Hindu Law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof.

He has also relied upon the AIR 1998 Kar. Page 225 which reads as follows:-

(A) Evidence Act (1 of 1892), S. 5 - Evidence - Admissibility of - Suit for partition - Partition deed not registered - Document held admissible by trial Court for collateral purposes through not as evidence of partition - Oral evidence relied upon for evidence of partition by trial Court - Finding by trial Court that there was partition cannot be held to be not sustainable on ground that sole evidence for partition was deed which was inadmissible in evidence, (i) Registration Act, (16 of 1908), S.49; (ii) Hindu Law - Partition).

He has also further relied upon the decision reported in AIR 1991 Kerala page 266 which reads as follows:-

(A) Registration Act (1908), S.17 -

Registration of documents - Agreement by way of family settlement settling all disputes

between parties - Does not require registration.

He has also relied upon AIR 1993 M.P page 65 which reads as follows:

Hindu Law - Partition - Proof of -

Memorandum of partition - Not registered - Inadmissible in evidence - Can be used for collateral purpose of proving intention of partition - Oral evidence to prove partition can also be let in.

By perusal of all the rulings, it is the contention of the defendants that there was already partition of the suit schedule property as per Ex.D-1 and also relinquishment deed as per Ex.D-2 and there is also Wedding Card as per Ex.D.3. By looking to all the ruling and also the written argument submitted by the learned Counsel for the defendant Nos.1 to 3 Sri. B.S. and in that regard his contention is that there was partition already, but there is no mutation order got effected in the names of defendant Nos.1 to 5 as per Ex.D.1 which is unregistered palu patti, but to prove such contention there is documents in favour of the defendants. But the PW.1 has produced Ex.P.1 to P.7 which are the RTC Extracts and Ex.P.8 is the Patta Book which clearly reveals that all the suit schedule properties are standing on the name of late

Lingappa and also his grand father and grand mother. Therefore at this stage, I am of the view that the contentions raised by the learned counsel for the defendants before the Court that the plaintiff cannot seek partition in the item No.8 of the suit schedule property does not arise, because in the item No.8, the plaintiffs are entitled to get the shares equally with the lands item Nos.1 to 7. In that regard, the learned Counsel for the plaintiff has relied upon a ruling reported in ILR 2004 Kar. Page 1930 which reads as follows:-

SECTION 8 - Partition of joint family property among brothers, their mother, their unmarried sisters and the widows and unmarried daughters of their pre-deceased by undivided brothers, who have left no male issue -

entitlement of share. The right of a female heir under Section 8 of the Act 10 of 1933 Act to inherit along with the co-parceners is a distinct right from the right of succession under Section 6 of Hindu Succession Act, which permits succession only in the share of the deceased along with other Class 1 heirs.

Another ruling reported in AIR 1999 Kar. Page 46 which reads as follows:-

Hindu Succession Act (30 of 1956). Ss. 14(1).6 - Joint family property - Single co- parcener - Survivorship - Daughter becomes entitled to share on date of death of her father when she was unmarried - Her subsequent marriage cannot take away vested right - Notional partition should be deemed to have taken place in such cases as contemplated under S.6.

He has also another ruling reported in AIR 1992 Bombay page 72, which reads as follows:-

(E) Hindu Succession Act (30 of 1956), S.6 - Joint family - Death of coparcener leaving behind sons, daughters etc., There is no automatic partition among heirs.

All the rulings relied upon by the learned counsel for the plaintiffs are applicable to the facts of this case. In view of the application of the said rulings of the plaintiffs, it cannot be denied that the plaintiffs are only entitled in the item Nos.1 to 7 of the suit schedule properties, but they are not entitled in the item No.8 of the suit schedule property as contended in the plaint, which is the residential house and hence, I answer Issue No.4 in the negative."

14. Upon re-appreciation and re-evaluation of the

entire material on record, I am of the considered opinion that

the judgment and decree passed by the trial Court rejecting

the claim of prior/earlier partition set up by the appellant-

defendant No.1 does not suffer from any illegality or infirmity

warranting interference by this Court in the present appeal.

Under these circumstances, I am of the considered opinion

that the trial Court was fully justified in coming to the

conclusion that the appellant-defendant No.1 failed to

establish that the suit schedule properties were allegedly

partitioned between the parties as contended in the written

statement.