Smt. Chinnamma vs Mrs. Mary Joseph Tharayal
2022 Latest Caselaw 9469 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 23RD DAY OF JUNE, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

       WRIT PETITION NO.53547 OF 2018 (GM-CPC)

BETWEEN:

SMT. CHINNAMMA
W/O LATE MARIYAPPA
SINCE DEAD BY LRS

1. SRI ANDREAS
S/O LATE MARIYAPPA
AGED ABOUT 45 YEARS

2. SRI CHOWRAPPA
S/O LATE MARIYAPPA
SINCE DEAD REPRESENTED BY HIS LRS

2A). SRI SANDEEP KUMAR
AGED ABOUT 21 YEARS

2B). SRI DILEEP KUMAR
AGED ABOUT 20 YEARS

2C). SRI ALEX JOSEPH
AGED ABOUT 16 YEARS

ALL ARE SONS OF LATE CHOWRAPPA
@ ANTHONAPPA @ ANTHAPPA
SINCE 2(C) IS MINOR
REPRESENTED BY HIS UNCLE ANDRES,
S/O LATE MARIYAPPA
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PETITIONERS NO.1 TO 2(C) ARE
RESIDING AT SOMANAHALLI
UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK
BANGALORE-560073

4. SRI ANAND
S/O LATE MARIYAPPA
AGED ABOUT 31 YEARS

5. SRI ANIL
S/O LATE MARIYAPPA
AGED ABOUT 27 YEARS

6. SRI ANTHONY RAJU
S/O LATE JOSEPH
AGED ABOUT 30 YEARS

7. SRI BALARAJU P
S/O LATE JOSEPH
AGED ABOUT 30 YEARS

8. SRI PUTTAMARI
S/O LATE JOSEPH
AGED ABOUT 61 YEARS

9. SRI PILOMIN RAJ
S/O LATE JOSEPH
SINCE DEAD
REPRESENTED BY HIS LRS

9A). AGNESE
W/O LATE PHILOMIN RAJ
AGED ABOUT 64 YEARS

9B). MARIGA PRADEEP
AGED ABOUT 43 YEARS

9C). PETER
AGED ABOUT 50 YEARS
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10. AROGYAPPA
S/O LATE JOSEPH
AGED ABOUT 50 YEARS

11. SRI ANTHONAPPA
S/O LATE JOSEPH
AGED ABOUT 50 YEARS

12. SRI J SHANTHAPPA
S/O LATE JOSEPH
AGED ABOUT 48 YEARS

PETITIONERS NO.4 TO 12 ARE
RESIDING AT SOMANAHALLI
UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK
BANGALORE-560073

                                           ...PETITIONERS

(BY SRI.PRADEEP H S, ADVOCATE)

AND:

1. MRS. MARY JOSEPH THARAYAL
W/O LATE JOSEPH THARAYAL
AGED ABOUT 63 YEARS
R/A THATAGUPPE, UTTARAHLLI HOBLI
BANGALORE SOUTH TALUK
BANGALORE-560073

2. SRI MOHAMMED ILLIYAS
AGED ABOUT 39 YEARS
S/O MOHAMMED HANEEF
R/A NO.13, BENSON ROAD
BENSON TOWN, BANGALORE-560046
                                           ...RESPONDENTS
(BY SRI.RAJENDRA, ADVOCATE FOR M/S HOLLA AND HOLLA,
ADVOCATE FOR R2; R1 SERVED)
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     THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER    ANNEXURE-A   DATED    09.11.2018  PASSED    IN
O.S.NO.286/2004 BY THE HON'BLE PRINCIPAL SENIOR CIVIL
JUDGE, BANGALORE RURAL DISTRICT, BANGALORE. THE SAME IS
PRODUCED AT ANNEXURE-A.

      THIS PETITION COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

                               ORDER

The captioned writ petition is filed by the plaintiffs feeling

aggrieved by the order dated 09.11.2018 passed by the

learned Judge thereby rejecting to mark the unregistered

partition deed on which petitioners/plaintiffs intend to place

reliance.

2. The petitioners/plaintiffs have filed a suit for

declaration to declare that plaintiffs are not bound by the sale

deed dated 18.01.1982 and to further declare that

petitioners/plaintiffs are not bound by the rectification deed

dated 31.12.1981. The petitioners claim that the suit

schedule property is ancestral property and it was originally

owned by their grandfather Chinnappa. The plaintiffs claim

that their grandfather died somewhere in 1950 leaving behind

his three sons namely Mariswamy, Yagappa and Joseph. The

plaintiffs further claim that all the three sons of original

propositus Chinnappa are no more and plaintiffs being lineal

descendants have inherited the suit schedule property and

hence, the present suit.

3. The petitioners/plaintiffs to substantiate their claim

commenced with their ocular evidence and while recording

ocular evidence, the petitioners sought leave of the Court to

rely on the unregistered palupatti dated 08.03.2001. The

production of said document was strongly resisted by the

respondents/defendants.

4. The Trial Court having examined the admissibility of

the said document upheld the objections raised by the

respondents/defendants and consequently, the learned Judge

by order dated 08.08.2018 held that the documents sought to

be marked cannot be received in evidence. The learned Judge

was of the view that the alleged partition deed cannot be

marked in evidence as it is an unregistered document.

5. Feeling aggrieved by the said order, the

petitioners/plaintiffs preferred writ petition before this Court.

The Co-ordinate Bench of this Court in W.P.No.35903/2018 set

aside the order and the matter was remitted back to the Trial

Court to pass fresh orders in accordance with law.

6. The learned Judge after hearing both the counsel

on record has again passed an order by holding that document

that is now sought to be produced is an unregistered partition

deed and therefore, the same cannot be received in evidence.

It is against this order, the petitioners/plaintiffs are before this

Court.

7. Heard learned counsel for the petitioners and

learned counsel for the respondent No.2. I have given my

anxious consideration to the judgment cited by the learned

counsel for the plaintiffs. I have also examined the judgment

cited by the learned counsel for the respondent No.2.

8. The present petitioners who are the plaintiffs are

asserting ownership of the suit schedule property by

contending that the suit schedule property is an ancestral

property and therefore, further have specifically pleaded at

para 3 of the plaint that the property was owned by their

grandfather Chinnappa. It would be useful for this Court to

refer to para 3 of the plaint and the same is culled out as

follows:

"3. The grandfather of the plaintiffs namely Chinnappa son of Mariyappa possessed land in Sy.No.70/1 of Tataguppe Village, Uttarahalli Hobli, Bangalore South Taluk measuring an extent of 7 acres 27 guntas. A part of this land is the subject matter of this suit and is more fully described in the schedule under, hereinafter referred to as the suit schedule property. The grandfather of the plaintiffs died during 1950 leaving behind him his three sons namely Mariswamy, Yagappa and Joseph who have also expired leaving behind the plaintiffs as their respective

lineal descendants. The plaintiffs No.1 to 5 represent the family of Mariswamy and the plaintiffs No.6 to 12 represent the family of Joseph. The descendants of Yagappa are not made parties in this suit in view of the plaint averment contained in para-6 hereunder. A copy of the genealogical tree is produced herewith and marked as Document No.1."

9. If para 3 of the plaint is looked into, this Court

would find that there is absolutely no whisper in regard to

alleged partition deed. The petitioners/plaintiffs are asserting

title by contending that the suit schedule property is ancestral

property. It is quite interesting to note that the petitioners are

not seeking relief of declaration but, on the contrary, they

have sought declaration to declare the sale deeds as not

binding on the plaintiffs.

10. Learned counsel appearing for the petitioners has

placed reliance on the following judgments:

1) K.Anjaneya Setty vs. K.H.Rangiah Setty - ILR 2002 KAR 3613;

2) Veerappa and Others vs. Smt. Halavva and Others

- ILR 2008 KAR 2159;

3) Rajappa S/o Munivenkatappa vs. Rajappa S/o Muniswamappa - Laws (KAR) 2014 3 143;

4) Kuberappa vs. T.C.Gopal - Laws (KAR) 2009 663;

5) Roshan Singh and Others vs. Zile Singh and Others

- AIR 1988 SC 881;

6) K.B.Saha and Sons Pvt. Ltd., vs. Development Consultant Ltd. - (2008) 8 SCC 564.

11. Placing reliance on the said judgments, learned

counsel for the petitioners would contend that the document

can be received for collateral purposes. As stated supra,

petitioners have not whispered about the alleged partition in

the pleadings. They have also not sought relief of declaration

of title. The Hon'ble Apex Court in the case of K.B.Saha and

Sons Pvt. Ltd., (supra) had an occasion to examine the

admissibility of document for collateral purposes. While

interpreting Section 49(c) and proviso of Registration Act,

1908, the Apex Court has held that collateral transaction must

be independent of, or divisible from the transaction which

requires registration. If this principle is examined, then this

Court is unable to understand as to how the

petitioners/plaintiffs can be permitted to make use of an

unregistered partition deed for collateral purposes. If the

document is inadmissible in evidence for want of registration,

then this Court is of the view that they cannot assert title on

the basis of the said unregistered partition deed.

12. Therefore, the petitioners/plaintiffs are not in a

position to demonstrate as to what is the collateral purposes

for which they intend to use this document. The document

also cannot be taken on record for want of pleadings. Para 3

which is culled out supra does not indicate that petitioners

intend to claim ownership based on an unregistered partition

deed. It is their case that the suit schedule property is

ancestral property and they have succeeded after the death of

their grandfather and their father.

13. During the course of arguments, learned counsel

for the petitioners would vehemently argue and contend that

that the second respondent's vendor is in no way related to

petitioner's family and therefore, by creating fraudulent

documents, petitioners properties are meddled with and the

same is transferred in favour of respondent No.2. If this

statement is taken into consideration, the petitioners/plaintiffs

are required to establish that suit schedule property is

ancestral property of their family. Secondly, they are required

to demonstrate and establish that vendor of respondent No.2

is not at all related to their family. It is in this background,

this Court is of the view that the unregistered document

cannot be used for collateral purposes. As stated supra, the

petitioners have to independently establish that suit schedule

property is ancestral property of their family and if they are

able to demonstrate and prove the said fact, all consequences

would follow. It is in this background, this Court is of the view

that the order under challenge does not suffer from any

illegality. No error is made out.

14. Accordingly, the writ petition is dismissed.

All contentions are kept open.

Any observations made by this Court during the course

of the order would not influence the trial Court while rendering

the judgment on merits.

Sd/-

JUDGE

CA