Karnataka High Court

G Vemanna S/O. G. Hanumanthappa vs T Rajeshwari W/O. T. ... on 12 April, 2023

Bench: K.S.Hemalekha

                                                        1




                            IN THE HIGH COURT OF KARNATAKA, DHARWAD
                                                  BENCH

                              DATED THIS THE 12TH DAY OF APRIL, 2023

                                                  BEFORE
                              THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
                             REGULAR SECOND APPEAL NO. 5930 OF 2011
                            C/W REGULAR SECOND APPEAL NO.6046 OF 2011


                       IN RSA NO.5930/2011
                       BETWEEN:


                             M. SHIVARAJ S/O LATE M. AMARAPPA
                             AGE: 57 YEARS, OCC: BUSINESS,
                             NOW RESIDING AT
                             R/O HOUSE NO.60, 3RD CROSS,
                             PATEL NAGAR, ANANTHPUR ROAD,
                             TQ & DIST: BELLLARY.

                                                                        APPELLANT

                       (BY SRI. F V PATIL., ADVOCATE)

                       AND:

          Digitally
          signed by
          ANNAPURNA
                       1.    SMT. RAJESHWARI W/O T.VIRUPAKSHAPPA
          CHINNAPPA
ANNAPURNA DANDAGAL
CHINNAPPA
          Location:
                             AGE:45 YEARS, OCC: HOUSEWIFE,
DANDAGAL
          HIGH COURT
          OF
          KARNATAKA
                             R/O HALKUNDI VILLAGE,
          DHARWAD
                             TQ & DIST: BELLARY-530031.

                       2.    G.VEMANNA S/O LATE G. HANUMANTHAPPA
                             AGE:59 YEARS, OCC: ENGINEER IN BEM;, KGF
                             R/O.KOLAR GOLD FIELDS,
                             TQ & DIST: KOLAR-570001.

                       3.    G.GOPAL S/O LATE HANUMANTHAPPA
                             AGE:51 YEARS, OCC: AGRICULTURIST,
                             R/O.NO.HALAKUNDI VILLAGE,
                             TQ&DIST: BELLARY-530031.
                              2




4.   G. SURESH S/O LATE HANUMANTHAPPA
     AGE: 51 YEAS, OCC: WORKING IN BEML,
     R/O.DOOR NO.1440, SRIRAMPURA,
     2ND CROSS, KUVEMPUNAGAR,
     TQ&DIST: MYSORE-570001.

5.   SMT. LAKSHMI DEVI
     W/O LATE BASAVARAJ GOWDA
     AGE:66 YEARS, OCC: HOUSEWIFE,
     R/O:SRINGAR, KALVEGADDE TALUR ROAD,
     TQ& DIST: BELLARY-530031.

6.   SMT. JANAKI @ ESHWARAMMA
     W/O MAHALINGA REDDY
     AGE: 61 YEARS, OCC: HOUSEWIFE,
     R/O. DHARMASAGARM DHARMASAGAR POST,
     TQ: HOSPET, DIST: BELLARY-530031.

7.   SMT. BASAMMA
     W/O LATE H. MALLANNA GOWDA,
     AGE:61 YEARS, OCC: HOUSEWIFE,
     R/O:TALUR ROAD, RENUKA NAGAR,
     IIND CROSS, NEAR YELLAMMA TEMPLE,
     TQ& DIST: BELLARY-530031.

                                             ...RESPONDENTS

(BY SRI. K L PATIL ADV. FOR R-1;
SRI. SHIVAKUMAR S BADAWADAGI ADV. FOR R2 TO R4, R6 & R7;
SRI. S B DODDAGOUDAR ADV. FOR R-5.)

      THIS RSA FILED U/S.100 OF CPC., AGAINST THE JUDGEMENT
& DECREE DTD:03.09.2011 PASSED IN R.A.NO.108/2010 ON THE
FILE OF THE PRINCIPAL DISTRICT JUDGE AT BELLARY, DISMISSING
THE APPEAL FILED AGAINST THE JUDGMENT DT:15.09.2010 AND
THE DECREE PASSED IN O.S.NO.409/2006 ON THE FILE II ADDL.
SENIOR CIVIL JUDGE AT BELLARY, PARTLY DECREEING THE SUIT
FILED FOR PARTITION.

IN RSA NO.6046/2011

1.   G.VEMANNA S/O G. HANUMANTHAPPA
     AGED ABOUT 59 YEARS, OCC: ENGINEER IN KGF,
     R/O.KOLAR GOLD FIELDS,
     TQ & DIST: KOLAR-581108.

2.   G.GOPAL S/O HANUMANTHAPPA
                                    3




     AGED ABOUT :55 YEARS, OCC: AGRICULTURIST,
     R/O.NO.HALAKUNDI VILLAGE,
     TQ&DIST: BELLARY-581133.

3.   G. SURESH S/O LATE HANUMANTHAPPA
     AGED ABOUT: 51 YEAS, OCC: EMPLOYEE IN BEML KGF,
     R/O.#1440, SRIRAMPURA,
     2ND CROSS, KUVEMPUNAGAR,
     MYSORE-570005.

                                                 ...APPELLANTS

(BY SRI. SHIVAKUMAR S BADAWADAGI.,ADVOCATE)


AND:


1.   SMT. RAJESHWARI W/O T.VIRUPAKSHAPPA
     AGED ABOUT: 45 YEARS, OCC: HOUSEWIFE,
     R/O HALKUNDI VILLAGE,
     TQ & DIST: BELLARY-581133.

2.   M SHIVARAJ S/O M AMARAPPA
     AGED ABOUT: 57 YEARS, OCC: BUSINESS
     R/O #1 SABHAPATHI WELL STREET,
     TQ & DIST: BELLARY-581133.

3.   SMT. LAKSHMI DEVI
     W/O BASAVARAJ GOWDA
     AGE:66 YEARS, R/O:SRINGAR,
     KALVEGADDE TALUR ROAD,
     TQ& DIST: BELLARY-581133.

5.   JANAKI @ ESHWARAMMA
     W/O MAHALINGA REDDY
     AGED ABOUT: 61 YEARS, OCC: HOUSEWIFE,
     R/O. DHARMASAGAR,
     TQ: HOSPET, DIST: BELLARY-581133.

6.   SMT. BASAMMA W/O MALLANNA GOWDA,
     AGED ABOUT:61 YEARS, OCC: HOUSEWIFE,
     R/O:TALLUR ROAD, RENUKA NAGAR,
     IIND CROSS, NEAR YELLAMMA TEMPLE,
     TQ& DIST: BELLARY-581133.
                                              ...RESPONDENTS
(BY SRI. K L PATIL ADV. FOR R-1;
                                  4




SRI. S B DODDAGOUDAR ADV. FOR R-3;
R-2, R-4 & R-5 ARE SERVED.)

      THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, THIS COURT, DELIVERED THE FOLLOWING:


                        JUDGMENT

RSA.No.5930/2011 is preferred by defendant No.4

assailing the judgment and decree dated 03/09/2011, in

R.A.No.108/2010 on the file of the Prl. District Judge at

Bellary, confirming the judgment and decree dated

15/09/2010 in O.S.No.409/2006 on the file of the II Addl.

Civil Judge (Sr.Dn.), Bellary.

RSA.No.6046/2011 is preferred by defendant Nos.1

to 3 against the judgment and decree dated 03/09/2011,

in R.A.No.102/2010 on the file of the Prl. District &

Sessions Judge at Bellary, confirming the judgment and

decree dated 15/09/2010 in O.S.No.409/2006 on the file

of the II Addl. Civil Judge (Sr.Dn.), Bellary.

2. The parties herein are referred to as per their

ranking before the trial Court for the sake of convenience.

3. The plaintiff filed the suit for partition and

separate possession seeking 1/4th share in the suit

schedule properties contending that the plaintiff,

defendant Nos.1 to 3 and 5 to 7 are the sons and

daughters of the original propositus G.Hanumanthappa

and that the suit schedule properties are the joint family

properties of the plaintiff and defendant Nos.1 to 3.

Further, that defendant Nos.1 to 3, without any partition

have got their names entered in the revenue records of

the suit schedule property and that the defendants in spite

of several request, have refused to effect partition in the

suit schedule properties and hence, the present suit for

partition.

4. Pursuant to the summons issued by the trial

Court, defendants appeared through their counsel and

defendant Nos.1, 3, 4 and 5 have filed their written

statement. Defendant No.2 has adopted the written

statement filed by defendant No.1; Defendant Nos.6 and 7

have adopted the written statement filed by defendant

No.5 and defendant No.2 has also filed additional written

statement.

5. Defendant No.1 admitted the relationship

between the plaintiffs and defendant Nos.1 to 3. However,

denied that the suit schedule properties are the joint

family properties of the plaintiff and defendant Nos.1 to 3

and 5 to 7. It is stated by defendant No.1 that the father

of the plaintiff had performed the marriage of the plaintiff

and at the time of marriage, the plaintiff was given gold

and her share in the form of money and further, it is

stated that there was a partition deed among defendant

Nos.1 to 3 and their mother on 27/05/2003 and the suit

schedule properties have been allotted to defendant Nos.1

to 3 under a partition deed and in view of the partition

deed, defendant Nos.1 to 3 have sold item Nos.1 and 2 of

schedule "A" properties bearing Sy.No.318 measuring 5

acres 24 guntas and Sy.No.316 measuring 7 acres 7

guntas in favour of defendant No.4, and defendant No.4,

pursuant to the registered sale deeds dated 04/09/2006

and 06/09/2006 is in possession and enjoyment of the suit

schedule properties and that the plaintiff has no right, title

and interest over the suit schedule properties, since the

marriage of the daughters were performed on 22/12/1985,

plaintiff is not entitled for any partition. It is also stated

that in light of the proviso to Section 6 of the Hindu

Succession (Amendment) Act, 2005 (hereinafter referred

to as "the Amendment Act" for the sake of convenience),

any partition and the testamentary disposition of the

property that has been taken place before 20/12/2004,

stands protected.

6. Defendant No.3 filed separate written

statement admitting the contents of the written statement

of defendant No.2 and sought for dismissal of the suit.

7. Defendant No.4, who is the purchaser of suit

item Nos.1 and 2 of schedule "A" property from defendant

Nos.1 to 3, contended that in view of the partition deed

dated 27/05/2003, the names of defendant Nos.1 to 3

were entered in the revenue records pertaining to item

Nos.1 and 2 of the suit schedule properties and defendant

No.4, on verification, has purchased the property from

defendant Nos.1 to 3 under registered sale deeds dated

04/09/2006 and 06/09/2006. In view of the sale made in

favour of defendant No.4, defendant No.4 is the absolute

owner of the suit schedule properties and he is the bona

fide purchaser for a valuable consideration and hence,

sought for dismissal of the suit.

8. Defendant No.5 filed his written statement

admitting the relationship as stated by the plaintiff and

contended that defendant Nos.1 to 3 and the mother of

the plaintiff by metes and bounds have effected partition

through a partition deed, suit property item Nos.1 and 2

have been alienated in favour of defendant No.4, and

defendant No.5 has taken similar stand as taken by

defendant Nos.1 to 3 and sought for dismissal of the suit.

9. Defendant No.2 filed additional written

statement, inter alia, contending that the plaintiff is not

entitled for any share in plaint "A" and "B" schedule

properties as plaint "A" schedule property has been

purchased by defendant Nos.1 to 3 out of their self-

acquired funds in the name of their mother Smt.

Hanumakka and therefore, plaintiff has no share in the "A"

schedule property as it exclusively belongs to defendant

Nos.1 to 3 and hence, sought for dismissal of the suit.

10. The trial Court, on the basis of the pleadings,

framed the following:

ISSUES (1) Whether plaintiff proves that, herself and defendants are the joint family members of the suit schedule properties are undivided Hindu joint family properties?

(2) Whether plaintiff is entitled to partition and separate possession of 1/4th share in the suit schedule properties by metes and bounds as claimed in the plaint?


    (3)     Whether        defendants     prove     that,     plaintiff
           married    on    22.12.1985        and    there    was    a

partition on 27.05.2003, as such plaintiff is not entitled to a share in the suit schedule properties?

(4) Whether defendants prove that, the properties are sold in favour of M.Shivaraj, through

registered sale deed dated 4.9.2006 and 6.9.2006 and sale is within the knowledge of plaintiff?

ADDITIONAL ISSUE Whether defendant No.4 proves that, he is the bonafide purchaser for value under Registered sale deed dated 04.09.2006 and 06.09.2006 and he is in possession of purchased properties?

11. The plaintiff, in order to substantiate her claim,

examined the power of attorney holder -plaintiff's husband

as PW.1 and got marked seven documents at Exs.P-1 to P-

7. On the other hand, defendant Nos.1, 4 and 5 were

examined as DWs.1 to 3 and got marked documents at

Exs.D-1 to D-3.

12. The trial Court, on the basis of the pleadings,

oral and documentary evidence held that:

(a) the plaintiff has proved that the suit schedule

properties are the joint family properties of the plaintiff

and defendant Nos.1 to 3 and 5 to 7;

(b) the defendants have failed to prove that the

plaintiff was married on 22/12/1985 and there was a

partition on 27/05/2003. As such, the plaintiff is not

entitled to a share in the suit schedule property;

schedule properties were in the name of defendant No.4

was within the knowledge of the plaintiff;

(d) by answering additional issue, the trial Court

held that defendant No.4 has failed to prove that he is a

bona fide purchaser for a valuable consideration under

registered sale deeds dated 04/09/2006 and 06/09/2006

and as such, he is in possession of the suit schedule

properties.

(d) the trial Court, while answering the issue in

favour of the plaintiff, partly decreed the suit of the

plaintiff holding that plaintiff is entitled for 1/7th share in

the suit schedule properties in light of the Hindu

Succession (Amendment) Act, 2005.

13. Aggrieved by which, defendant No.4 preferred

R.A.No.108/2010 and defendant Nos.1 to 3 have preferred

R.A.No.102/2010 before the first appellate Court and the

first appellate Court on perusal of the entire material on

record, the following points arose for determination:

POINTS

1) Whether the IA.No.4 filed U/s.5 of Limitation Act by the appellant in R.A.No.108/2010 deserves to be allowed?

2) Whether IA No.2 filed U/o. 41 Rule 27 of CPC by the appellant in RA.No.108/2010 deserves to be allowed?


        3)    Whether the judgment and decree passed by the II
               Addl.      Senior      Civil      Judge,    Bellary   in

O.S.No.409/2006 dated 15.9.2010 is illegal or perverse and needs any interference by this Court?

14. While answering the points which arose for

determination of the first appellate Court, the first

appellate Court, by its common judgment and decree

rejected the I.A.No.2, filed under Order XLI Rule 27 of the

CPC, by the appellant in R.A.No.108/2010 and dismissed

the appeals filed in R.A.Nos.102/2010 and 108/2010

under Order XLI Rule 1 of CPC, by the appellants with

cost. The judgment and decree passed in

O.S.No.409/2006 dated 15/09/2010, by the II Addl.

Senior Civil judge, Bellary was confirmed. Aggrieved by

which defendant Nos.1 to 4 are in separate appeals.

15. This Court, while admitting the appeal in

RSA.No.5930/2011, has framed the following substantial

question of law on 18/11/2011:

"Whether the judgment and decrees of the Courts below is contrary to law declared by this Court in M.Prithviraj and others vs. Smt. Leelamma N. and others reported in 2009(4) KCCR 2333."

     16.      RSA.No.6046/2011           was       admitted       on

09/12/2011       considering    that    against    the   impugned

judgments, since some of the defendants approached this

Court in RSA.No.5930/2011, RSA.No.6046/2011 has to be

admitted on the same substantial question of law as stated

in RSA.No.5930/2011.

17. Heard learned counsel for the parties in both

the appeals on the substantial question of law framed by

this Court.

18. Before adverting to the contentions raised by

the learned counsel for the parties, it is necessary to state

that the appellant in RSA.No.5930/2011 has sought to file

an application under Order VI Rule 17 of the CPC seeking

for adding of additional grounds to appeal memo and thus,

sought to frame additional substantial questions of law for

consideration which read as under:

(i) Whether the suit of the plaintiff is liable to be rejected by applying order VII Rule 11(a) and

(d) of CPC?

(ii) Whether the trial Court is justified in refusing to admit the partition deed dated 27/05/2003 drawn on the deficient stamp paper of Rs.100/- instead of drawing on stamp paper of Rs.200/- without considering the judgment of this Court reported in the case of Hanumanmul Baid vs. Ananthapadmanabha [ILR 1992 Kar. 1133] (Hanumanmul Baid)?

(iii) Whether the lower appellate Court is justified in rejecting I.A.No.2 filed under Order XLI Rule 27 of CPC by the appellant in R.A.No.108/2010?

(iv) Whether the Courts below are justified in decreeing the suit of the plaintiff without correctly applying the principles laid down by the Hon'ble Supreme Court in the case of Vineeta

Sharma vs. Rakesh Sharma & others [AIR 2020 SC 3717 (Vineeta Sharma)?

19. Apart from addressing their arguments on the

substantial question of law framed by this Court on

18/11/2011 and 09/12/2011, learned counsel for both the

parties have been heard on the substantial question of law

as contended by the appellant - defendant No.4 in RSA.

No.5930/2011.

20. Sri. F.V. Patil, learned counsel for the appellant

- defendant No.4 in RSA.No.5930/2011 has canvassed the

following points:

(a) That the cause of action shown in para No.9 of the

plaint is imaginary and contend that the plaint ought to

have been rejected by applying the principles of Order VII

Rule 11(a) and (d) of CPC.

(b) Findings on issue Nos.1 to 4 by the trial Court is

without considering and taking into account the pleadings

in the separate written statement filed by defendant

Nos.1, 2 and 4.

instrument not duly stamped is inadmissible in evidence

over a procedure to pay duty and penalty on the said

document and can be admitted in evidence and no such

opportunity to defendant Nos.1 to 3 was accorded and

defendant Nos.1 to 3 are willing to deposit the penalty

amount. As such, the findings on the partition deeds by

the first appellate court is not justifiable.

(d) That the first appellate Court was not justified in

rejecting I.A.No.2 filed under Order XLI Rule 27 of the CPC

filed by the appellant - defendant No.4.

(e) The judgments and decrees of the Courts below are

contrary and without applying the principles laid down by

the Hon'ble Apex Court in the case of Vineeta Sharma

stated supra.

21. Learned counsel, to buttress his submission,

has relied upon the following judgments:

(i) Special Land Acquisition Officer vs. Balappa & others [ILR 2002 Kar. 3880];

(ii) Hanumanmul Baid vs. Ananthapadmanabha [ILR 1992 Kar. 1133] (Hanumanmul Baid);

(iii) A.K.V. Nithyanandan vs. R. Lucas & another [AIR 2011 Madras 6];

(iv) Suman vs. Vinayaka & others [2014(1) Ka`ar.L.J.

575] and

(v) Metropoli Overseas Limited vs. H.S.Deekshit & others (CRP.No.307/2020 dated 14/09/2021) [ILR 2022 Kar. 2231] (Metropoli Overseas Limited).

22. Sri. Shivakumar S Badawadagi, learned

counsel appearing for the appellant in RSA.No.6046/2011,

in addition to the arguments advanced by the learned

counsel for the appellant in RSA.No.5930/2011 and taking

the very same contention, learned counsel for the

appellant would contend that the Courts below have not

taken into consideration the partition deed dated

27/05/2003 produced by the appellants before the first

appellate Court, and the first appellate Court, without

considering the same has rejected the application without

affording an opportunity to the defendants to adduce their

evidence regarding effecting the partition between

defendant Nos.1 to 3 and their mother and that the Hindu

Succession (Amendment) Act, 2005 protects any

testamentary disposition and the partition is recognized

under Section 6(5) of the said Act. It is stated that the

marriage of the plaintiff was performed in the year 1985

and the father died in the year 2002. As such, the plaintiff

is not entitled for a share in the joint family properties. It

is stated that the judgment and decree of the Courts

below in awarding 1/7th share to the plaintiffs on the face

of it, is not justifiable and the substantial question of law

needs to be answered in favour of the appellants.

23. Per contra, Smt. Padamaja Tadipatri, learned

counsel appearing for Sri. K.L. Patil, learned counsel for

the respondent - plaintiff would justify the judgment and

decree of the Courts below contending that the Courts

below have rightly held that the suit schedule properties

are the joint family properties of the plaintiffs and

defendant Nos.1 to 3 and 5 to 7 and the law regarding

entitlement of share of the daughter in a coparcenary

property is well settled in light of the judgment of the

Hon'ble Apex Court in Vineeta Sharma's case stated

supra.

24. It is further contended that defendant Nos.1 to

3 having admitted that the suit schedule properties are the

joint family properties and that defendant Nos.1 to 4

contended that there is a partition between themselves,

but there is no oral or documentary evidence adduced to

substantiate their contentions. Defendant No.4 cannot be

held as a bona fide purchaser of the suit schedule

properties and having failed to establish while placing oral

and documentary evidence on record, the sale deeds are

considered to be created in collusion with defendant Nos.1

to 3 in order to deprive the valuable and legitimate right of

the plaintiff.

25. The right of appeal to defendant No.4 being a

purchaser of the joint family property is very limited, more

particularly in a partition suit and defendant No.4 has no

right to seek partition between the family members of the

joint family. Stating these grounds, learned counsel for

the respondent sought to dismiss the appeals with heavy

costs and would contend that the substantial question of

law needs to be answered against the defendants in both

the appeals.

26. The undisputed facts are that the plaintiff,

defendant Nos.1 to 3 and defendant Nos.5 to 7 are the

brothers and sisters and they are the members of the joint

family. It is also not in dispute that the suit schedule

properties are the joint family properties of the plaintiff,

defendant Nos.1 to 3 and 5 to 7. It is also not in dispute

that defendant No.4 claims to be the purchaser of suit

item Nos.1 and 2 of the suit schedule "A" agricultural

properties from defendant Nos.1 to 3 under registered sale

deeds dated 04/09/2006 and 06/09/2006. The trial Court

and the first appellate Court held that the plaintiff is

entitled for 1/7th share in the suit schedule properties.

27. Defendant Nos.1 to 3 admit that the suit

schedule properties are the joint family properties of the

plaintiff and defendant Nos.1 to 3 and 5 to 7, but set up a

claim that there is a partition deed executed between

defendant Nos.1 to 3 and their mother on 27/05/2003 and

accordingly, the names of defendant Nos.1 to 3 were

entered in the revenue records pursuant to the partition

deeds. The defendants, though contended that there was

a partition effected, no material is produced before the

trial Court to substantiate their claim regarding the

partition effected. The trial Court held that in view of the

Hindu Succession (Amendment) Act, 2005, the plaintiff

being a coparcener has got equal right in the suit schedule

properties and defendant Nos.1 to 3 have failed to prove

the legal disposition in respect of the suit schedule

properties.

28. Learned counsel for the appellant- defendant

No.4 also relied upon the judgment of the Co-ordinate

Bench of this Court in Metropoli Overseas Limited

stated supra to contend that, the suit of the plaintiff needs

to be rejected under Order VII Rule 11 (a) and (d) of the

CPC. It is well settled position of law that the averments

of the plaint have to be considered while rejecting or

allowing an application under Order VII Rule 11(a) and (d)

of CPC. Even assuming that there is no application filed

by the defendants seeking rejection of the plaint, the

Court can suo moto look into the averments of the plaint

and reject the plaint, if it is so specified or if any of the

clauses as enumerated under Order VII of the CPC is

attracted. The trial Court and the first appellate Court,

considering the pleadings and evidence of the parties, has

rightly come to the conclusion that the plaintiff is entitled

for the relief of partition and separate possession of the

suit schedule properties.

29. Thus, the contention of the defendants, more

particularly, defendant No.4 to contend that the suit of the

plaintiff needs to be rejected under Order VII Rule 11(a)

and (d) is not sustainable and the same deserves to be

dismissed. The said judgment of the Co-ordinate Bench of

this Court in Metropoli Overseas Limited relied upon by

the learned counsel is not applicable to the facts and

circumstances of the case. The first substantial question of

law sought to be framed by the appellant by filing an

additional application needs to be held against the

defendants for the reasons stated supra.

30. In an appeal preferred by defendant No.4 -

appellant in RSA.No.5930/2011, an application is filed

under Order XLI Rule 27 of the CPC seeking permission to

lead additional evidence by producing the copy of the

registered sale deed, mutation register extract, record of

rights and tax paid receipts. Defendant No.4 contended

that the original title deeds were misplaced during

adducing of the evidence before the trial Court and as

such, he could not produce the same at that time before

the trial Court. The first appellate Court, placing reliance

on the Order XLI Rule 27 of the CPC, under three

circumstances under which the additional evidence could

be permitted, dismissed the application. It is relevant to

note that Order XLI Rule 27 of the CPC enumerates as

under:

"27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if--

(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the Court shall record the reason for its admission."

31. In light of the said provision, under three

circumstances, the appellant can be allowed to produce

the additional evidence. The circumstances under which

the appellant has sought to allow the application was not

under the purview of Order XLI Rule 27 of the CPC and

accordingly, the first appellate Court rejected the

application and substantial question of law sought to be

framed at Sl. No(iii) is answered against the appellants.

32. Though defendant Nos.1 to 3 set up a

contention that there was a partition dated 27/05/2003

and the same needs to be protected in view of the proviso

to Section 6 of the Hindu Succession (Amendment) Act,

2005 as there was a partition taken place prior to

20/12/2004. The defendants have not placed any oral or

documentary evidence to substantiate their defence.

Having failed to establish that there was a partition

effected, the oral partition was permissible, at the same

time, the burden of proof remained on the person who

asserted that there was a partition. In the present case,

defendant Nos.1 to 3 have set up a contention that there

is a partition deed dated 27/05/2003, but the said

document is neither placed on record nor any explanation

has been given by defendant Nos.1 to 3 for non-

production of the material documents. Only on the basis

of the mutation entry, the defendants have taken up a

contention that there was a partition between the parties.

It is well settled proposition of law that mere entry in the

record of rights would not create presumption of partition

between the family members. It is a presumption that

every Hindu family is presumed to be joint unless contrary

is proved and the burden lies upon the person who says

that there was a partition.

33. Learned counsel for the appellant has relied

upon the judgment of Hanumanmul Baid to contend that

the instrument duly stamped under the proviso(a) to

Section 8 of the Karnataka Stamp Act, 1957 provides for

procedure to pay the stamp duty and prescribe penalty if a

party requires to be admitted in his evidence. This

contention of appellant No.4 is not acceptable as

defendant No.4 has failed to produce the alleged partition

deed and the trial Court held issue No.3 against defendant

No.4 holding that the defendants have failed to prove by

placing material on record, either oral or documentary

evidence to substantiate their contention that there was a

partition effected between the parties. Even in the

judgment of the Hon'ble Apex Court in the case of

Vineeta Sharma, as relied upon by the learned counsel

for the appellant, has held that the intendment of

amended Section 6 is to ensure that the daughters are not

deprived of their rights of obtaining share and becoming a

coparcener and claiming a partition of the coparcenary

property by setting up a defence of oral partition are

recorded in the unregistered memorandum of partition.

The Court has to keep in mind the plea of oral partition,

may be set up fraudulently or in collusion or based on an

unregistered memorandum of partition, which may also be

created at any point of time. Such partition is not

recognized under Section 6(5) of the Hindu Succession

(Amendment) Act. The judgment relied upon by the

learned counsel for the appellant to contend that, the

proviso to Section 34 provides to pay stamp duty and

penalty. Having failed to produce the very document itself

before the trial Court and the first appellate Court, the

defendants are not justified or entitled for the relief of

stating that there was a partition earlier and as held by

the Hon'ble Apex Court in the case of Vineeta Sharma,

the same is not recognized.

34. Defendant No.4 sought to contend that, the

partition deed sought to be produced was refused to be

admitted in the evidence. At the time of evidence itself,

the defendant should have made efforts to pay the stamp

duty or the penalty. At this stage, the defendants cannot

contend that they are ready to pay the stamp duty and

penalty on the document, which was not taken into

evidence by the trial Court, as such the judgments relied

upon by the learned counsel for the defendants and even

the marking of the documents is inadmissible in the

evidence and the same cannot even be looked into for

collateral purpose. The proposition is well settled that the

plaintiff cannot seek to admit a document, which was not

admitted in the evidence at the initial stage itself.

Accordingly, the substantial question of law sought to be

framed by the appellant under Order VI Rule 17 of the CPC

needs to be held against defendant No.4. The trial Court

and the first appellate Court has rightly considered the

entire pleadings, oral and documentary evidence and has

rightly come to the conclusion that defendant Nos.1 to 3

have failed to prove that there was a partition deed dated

27/05/2003 and the same is protected under Section 6(5)

of the Hindu Succession (Amendment) Act. The Hon'ble

Apex Court, in the case of Vineeta Sharma, has held as

under:

"137. Resultantly, we answer the reference as under:

137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

137.2. The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

137.4. The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not

bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

137.5 In view of the rigour of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."

(Emphasis supplied)

35. Thus, placing reliance on the judgment of the

Hon'ble Apex Court, the oral partition or the partition deed

which is not admitted in the evidence cannot be accepted

as a statutory recognized mode of partition effected by a

deed of partition duly registered under the provisions of

Registration Act, 1908 or by a decree of a Court and in

light of this, the appeal filed by defendant Nos.1 to 3 and

defendant No.4 needs to be dismissed and the substantial

question of law sought to be framed at Sl.Nos.(ii) and (iv)

and the substantial questions of law framed by this Court

needs to be answered against the defendants and the