Karnataka High Court
Smt Parvathi W/O Late Manjunath vs Vishwanatha S/O Late Annegowda on 12 December, 2023
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.No.241/2009(PAR)
BETWEEN
1 . SMT PARVATHI
W/O LATE MANJUNATH
AGED 47 YEARS
2 . TEJASWI PATEL
S/O LATE MANJUNATH
AGED : 20 YEARS
3 . CHIRANJIVI
S/O LATE MANJUNATH
AGED 18 YEARS
ALL ARE RESIDENTS OF
GUTHIHALLI VILLAGE
BANAKAL HOBLI
MUDIGERE TALUK
CHIKMAGALUR DISTRICT
4. SMT SAVITHRAMMA
W/O LATE RAMEGOWDA
MAJOR
R/O KUMBARADI
GONIBEEDU HOBLI,
MUDIGERE TALUK,
CHIKMAGALUR DISTRICT
2
5. SMT JANAKAMMA
W/O LATE RAMEGOWDA
R/O KUMBARADI,
GONIBEEDU HOBLI
MUDIGERE TALUK,
CHIKMAGALUR DISTRICT
6. SMT GIRIJAMMA
W/O M V NAGESH
MAJOR
R/O CHIKMAGALUR CITY
CHIKMAGALUR
7. SMT MUTTAMMA
W/O LATE BOLEGOWDA
MAJOR, R/O NARU VILLAGE
PUTTUR TLAUK , D.K DISTRICT
8. SHASHIKALA
D/O LATE BASEGOWDA
GUTTIHALLI VILLAGE,
GONIBEEDU HOBLI,
MUDIGERE TALUK
CHIKMAGALUR DISTRICT
...APPELLANTS
(BY SRI G LAKSHMEESH RAO, ADVOCATE)
AND
1. VISHWANATHA
S/O LATE ANNEGOWDA
MAJOR
2. BHANU @ BHANUMATHI
HUSBAND'S NAME NOT KNOWN
MAJOR
3
3 . BHAVYA
D/O LATE ANNE GOWDA
MAJOR
4. BHARATHI
W/O LATE ANNEGOWDA
MAJOR
5. LOKESHA
S/O LATE ANNEGOWDA
MAJOR
ALL ARE RESIDENT OF
GUTHIHALLI VILLAGE,
BANAKAL HOBLI,
MUDIGERE TALUK
CHIKMAGALUR DISTRICT
...RESPONDENTS
(BY SRI C G GOPALASWAMY, ADVOCATE FOR R1;
R2, R3, R4 AND R5 NOTICE SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CIVIL PROCEDURE CODE AGAINST THE
JUDGMENT AND DECREE DT.03.12.2008 PASSED IN
O.S.NO.213/1999 ON THE FILE OF THE CIVIL JUDGE (SR.
DN.) CHIKMAGALUR, DISMISSING THE SUIT FOR PARTITION
AND SEPARATE POSSESSION.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
4
JUDGMENT
The present appeal is directed against the judgment
and decree passed in O.S.No.213/1999, dated 3rd December,
2008, on the file of Civil Judge, Senior Division, Chikmagalur.
2. Parties are referred to as plaintiffs and defendants as
per their original ranking before the trial Court for the sake of
convenience.
3. A suit came to be filed by the plaintiffs for the relief of
partition and separate possession of plaintiffs 3/4th share in
the 'B' and 'C' schedule properties apart from accounts and
enquiry into the mesne profits.
4. The relationship of the parties is depicted in the
genealogical tree in the form of 'A' schedule to the plaint
which is reproduced hereunder for the sake of convenience.
BASAVEGOWDA
Puttamma Gori Nagamma
(1st Wife) (2nd Wife) (3rd Wife)
H.B.Chandrappa Gowda 1. Savithramma
H.B.Annegowda Sakamma 2. Janakamma
Smt.Seethamma 3. Girijamma
4. Mutthamma
5. Manjunatha
1. Bhanu 1. Nagaraja 6. Shashikala
2. Vishwanatha 2. Jagadeesha
3. Bhavya 3. Bharathi
4. Lokesha
5. Bharathi
5. Plaintiffs further contended that the plaint 'B' and 'C'
schedule properties are the joint family properties. Plaintiffs
and defendants are in joint possession of the same. Plaintiff
No.1 is uneducated, except subscribing his signature which is
his name. He was under care and protection of his own elder
brother Sri Anne Gowda. As per the plaint averments,
Annegowda died on 07.05.1996 and thereafter plaintiffs
demanded their shares in the 'B' schedule properties and got
issued a notice in this regard.
6. Properties in question were the properties left for the
share of heirs of Base Gowda i.e., the plaintiffs and Anne
Gowda in the partition suit in O.S.No.120/1986 instituted by
Smt. Sakamma and others.
7. Plaintiffs came to know that first defendant is
attempting to fabricate certain documents for transfer of
revenue entries in his name who is sufficiently educated
person in the family and has obtained signatures of plaintiffs
on some blank papers and therefore, suit is filed.
8. Upon receipt of suit summons, defendants appeared
through their counsel and first defendant has filed detailed
written statement. Said written statement is adopted by
other defendants.
9. In the written statement, the relationship as is
mentioned in plaint 'A' schedule and reproduced supra has
been admitted. The receipt of legal notice and rest of the
allegations namely; that the plaintiffs have also got right in
respect of 'B' schedule properties and therefore, they are
entitled to 3/4th share in the suit schedule properties are
emphatically denied by the defendants.
10. Defendants further contended that there was a
panchayath conducted in the presence of elders and well
wishers of the family, where under panchayathdars have
divided all the properties which have been belonging to the
Hindu undivided family of late Anne Gowda and got divided
among the plaintiffs and defendants. Therefore, defendants
did not choose to reply the legal notice.
11. Defendants specifically denied that 'B' and 'C' schedule
properties continued to be the Hindu undivided joint family,
left with joint shares of Anne Gowda and plaintiffs.
12. It is also contended by the defendants that the
plaintiffs have suppressed the real facts and as a matter of
fact after decree came to be passed in O.S.No.120/1986,
heirs of Chandappa Gowda have obtained their shares in joint
family properties including half share in the residential house,
situated in Sy.No.152 of Guthi village. They also contended
that the said fact has not been deliberately pleaded by the
plaintiffs and plaintiffs have also included those properties in
the plaint 'B' schedule.
13. The defendants specifically contended that as per the
oral partition in the presence of well wishers, the properties
were given to the share of the plaintiffs is mentioned which
reads as under:
"Sy.Nos.163/2 measuring 0.33 guntas, Guthi
village
Sy.Nos.164/2 measuring 0.29 guntas, Guthi village
Sy.Nos.166/1 measuring 0.11 guntas, Guthi village
Sy.Nos.166/5 measuring 1.00 acre, Guthi village
Sy.Nos.166/8 measuring 0.20 guntas, Guthi village
Sy.Nos.172/1 measuring 0.10 guntas Guthi village
Sy.Nos.101/1 measuring 0.18 guntas, Guthi village
Sy.Nos.152/p measuring 1.06 acres, Guthi village
Sy.Nos.229 measuring 1.23, acres Guthi village
Sy.Nos.264/P measuring 3.00 acres, Guthi village
Apart from giving 1.00 acres to the marriage
expenses of plaintiff No.7 and half portion of the
residential premises. The defendants have got
following properties in the said partition:
Sy.No.309/P measuring, 0.24 guntas Guthi village
Sy.Nos.264/p measuring 5-10 acres Guthi village
Sy.Nos.155/p measuring 1-00 acre Guthi village
Sy.Nos.211/2 measuring 2-29 acres Daradahally
village
Sy.Nos.211/1 measuring 4-02 acres Daradahally
village"
14. It is further contention of the defendants that the said
oral partition mentioned in a palu patti, which was prepared
and signed by the plaintiff No.1 himself and on behalf of the
other plaintiffs. The first defendant signed on his behalf and
also on behalf of other defendants.
15. The defendants further contended that the original of
palu patti is left with Sheshe Gowda who was the
panchayathdars and a photo copy thereof has been handed
over to the first plaintiff and defendants.
16. In view of the partition, followed by palu patti, plaintiffs
cannot lay claim in respect of suit properties as is claimed in
the plaint and sought for dismissal of the suit.
17. Based on the rival contentions of the parties, learned
trial Judge has raised the following issues:
1. "Whether the plaintiffs prove that the plaint B and C
schedule properties are H.U.F. properties of the
plaintiffs and defendants?
2. Whether the plaintiffs are entitled to the relief of
partition and separate possession as claimed?
3. Whether the defendants prove that there has been
already a partition of the H.U.F properties in the
presence and before the panchayathdars as pleaded?
4. Whether the suit is not maintainable?
5. Is there is no cause of action for the suit?
6. What decree or order the parties are entitled?"
18. In order to prove the case of the plaintiffs, one of the
plaintiffs namely; Smt. Parvathi who is the first legal heir of
H.B.Manjunatha is examined as P.W.1 and one witness -
Manjunatha is examined as P.W.2.
19. Plaintiffs relied on 31 documents which were exhibited
and marked as Exs.P.1 to P.31 comprising of; Lawyer notice
as Ex.P.1, Acknowledgment as Ex.P.2, Genealogical tree as
Ex.P.3, Copy of plaint in O.S.126/1986 as Ex.P.4, copy of
decree as Ex.P.5, Certified copy of judgment in
O.S.126/1986 as Ex.P.6, RTCs as Exs.P.7 to P.26, Record of
rights as Exs.P.27 and P.28, Index of lands as Exs.P.29 to
P.31.
20. As against the evidence placed on record by the
plaintiffs, on behalf of defendants, first defendant is
examined as D.W.1 and one of the panchayathdars, Sheshe
Gowda is examined as D.W.2 and one Manjunatha is
examined as D.W.3.
21. On behalf of defendants, 18 documents were relied
upon which were exhibited and marked as Exs.D.1 to D.18
comprising of; Palu patti as Ex.D1, Certified copy of deed as
Ex.D.2, Mutation as Ex.D.3, RTC as Ex.D.4, Certified copy of
deed as Ex.D.5, Mutation as Ex.D.6, RTC as Ex.D.7, RTCs as
Exs.D.8 to D.17, Bank endorsement as Ex.D.18.
22. On conclusion of recording of the evidence, learned
trial Judge heard the parties in detail and on cumulative
consideration of the material evidence on record, dismissed
the suit of the plaintiffs.
23. Being aggrieved by the said dismissal, unsuccessful
plaintiffs have preferred the present appeal on the following
grounds:
The judgment and decree passed by the Court below are
contrary to law and pleadings.
The trial court failed to appreciate that the alleged palupatti
is unregistered and therefore inadmissible in evidence.
The trial court committed an error in holding that
Ex.D.1(Palupatti) can be considered for the collateral
purpose to show that there was severance of joint family
status between the plaintiffs and defendants. It is submitted
that the suit is for partition of 'A' and 'B' Schedule properties
by metes and bounds. Ex. D. 1 Palupatti is produced by the
defendants to show that there was a prior partition between
the plaintiff No.1 and defendants No.1 and 5 by metes and
bounds. The partition of the 'A' and 'B' schedule properties
by metes and bounds is the primary purpose which is
evidenced through Ex.D.1. EX.D.1 produced to evidence
prior partition which being the primary purpose requires
compulsory registration. Admittedly, it is an unregistered
document which is not admissible in evidence. Therefore,
the question of considering Ex.D.1 for collateral purpose of
severance of status is immaterial and irrelevant when the
suit involves the question of partition of 'A' and 'B' schedule
properties by metes and bounds which is the primary
purpose. Hence, the finding of the trial court as to the
admissibility of Ex.D.1 is incorrect and liable to be set aside.
It is submitted that the document palupatti on per Ex.D.1 is
created for the purpose of the suit is question to make
unlawful gain over the joint family properties and to deny
the legitimate share of the plaintiffs/appellants. The witness
as per D.W.2 and D.W.3 are also set up for the purpose of
the suit in question. The defendants have not even replied
to the legal notice demanding legitimate share of the
plaintiffs. The trial court ought to have rejected Ex.D.1 and
the evidence of D.W.1 to D.W.3.
It is submitted that admittedly the suit A and B schedule
properties are the joint family properties. Under the
unamended Hindu Succession Act, the plaintiff No.1 was
entitled for 1/4th share in the aforesaid properties. Plaintiff
No.2 being the wife, Plaintiffs No.3 to 7 being the daughters
of Sri.Basegowda, entitled for a share in 1/4th share of
Basegowda along with defendant's father Annegowda and
uncle Chandregowda and brother Sri.H. B.Manjunath.
Admittedly, the plaintiffs No.2 to 7 have not signed the
alleged Palupatti as per Ex.D.1. Even EX.D.1 does not
reflect that H.B. Manjunath represent the other plaintiffs and
they have given consent for the said alleged partition.
Hence, the alleged palupatti as per EX.D.1 does not bind
them.
The document Palupatti as per EX.D.1 does not bear the
signatures of plaintiffs No.2 to 7 and further not reflect any
share being allotted to them when admittedly, they are
entitled for a share in their father Basegowda's 1/4th share,
appropriate shares ought to have allotted to them in the
alleged palupatti as per Ex.D.1. Therefore, when no shares
in 'A' and 'B' schedules are allotted to the plaintiffs No.2 to 7
i.e., appellents No.4 to 9, the alleged palupatti as per Ex.D.1
cannot be construed as partition and in the eye of law, there
is no partition at all. The trial court committed an error in
not appreciating the aforesaid aspect.
The trial court ought to have appreciated that under the
amendment to the Hindu Succession Act, the daughters
have to be treated as coparceners and they are entitled for
equal share along with sons in the joint family properties.
The trial court has failed to consider the new amendment to
the Hindu Succession Act 2005.
The reasoning of the decisions reported in 1982(1) KLJ 246,
1982 (2) KLJ 593 and 1991(1) KLJ.149 are not applicable to
the facts of the case. The trial court committed an error in
appreciating the ratio of 1988(1) KLJ 583 and relying upon
the aforesaid decisions.
The trial court erred in making much of the rebuttal
evidence of Manjunath, when Ex.D.1 itself is inadmissible in
evidence.
The trial court erroneously appreciated the evidence of PW.1
and PW.2 resulting in wrong conclusion.
The trial court erred in dismissing the suit as not
maintainable in law for non joinder of necessary parties."
24. Sri G. Lakshmeesh Rao, learned counsel appearing for
the appellants, reiterating the grounds urged in the appeal
memorandum, vehemently contented that the learned trial
Judge has failed to appreciate the probative value and oral
and documentary evidence placed on record by the plaintiffs
and wrongly dismissed the suit of the plaintiffs, resulting in
miscarriage of justice and sought for allowing appeal.
25. He further contended that the alleged palu patti
marked at Ex.D.1 is not proved by the defendants properly
and taking advantage of the fact that first plaintiff is not
literate person except to subscribe his signature on any
document by writing his name, Ex.D.1 came be concocted by
the defendants who are well educated and the said aspect of
the matter has not been properly appreciated by the learned
trial Judge in the impugned judgment and sought for allowing
the appeal.
26. He further contended that as per the judgment and
decree passed in O.S.No.126/1986, there is no proper
division and therefore the contentions urged on behalf of the
defendants that the properties ceased to be the joint family
cannot be countenanced in law and the same has not been
properly appreciated by the learned trial Judge in the
impugned judgment.
27. In support of the arguments put forth on behalf of the
appellants, Sri G. Lakshmeesh Rao placed reliance of
judgment of the Hon'ble Apex Court in the case of Rith
singh and others reported in AIR 1988 SC 881 wherein, it
has been held as under:
"16. In the present case, admittedly there was a
partition by metes and bounds of the agricultural
lands effected in the year 1955 and the shares
allotted to the two branches were separately
mutated in the revenue records. There was thus a
disruption of joint status. All that remained was the
partition of the ancestral residential house called
rihaishi, the smaller house called baithak and
ghers/ghetwars. The document Exh.P-12 does not
effect a partition but merely records the nature of
the arrangement arrived at as regards the division
of the remaining property. A mere agreement to
divide does not require registration. But if the
writing itself effects a division, it must be
registered. See: Rajangam Ayyar v. Rajangam
Ayyar, (1923) 69 Ind Cas 123: (AIR 1922 PC 266)
and Nani Bai v. Gita Bai, AIR (1958) SC 706. It is
well-settled that the document though unregistered
can however be looked into for the limited purpose
of establishing a severance in status, though
that severance would ultimately affect the nature of
the possession held by the members of the
separated family as co-tenants. The document Exh.
P-12 can be used for the limited and collateral
purpose of showing that the subsequent division of
the properties allotted was in pursuance of the
original intention to divide. In any view, the
document Exh. P-12 was a mere list of properties
allotted to the shares of the parties."
28. Per contra, learned counsel for the respondent No.1
Sri.C.G.Gopala Swamy opposed the appeal grounds and
supported the impugned judgment by contending that the
contentions urged on behalf of the appellants are far from
truth, especially when the first plaintiff is a signatory to
Ex.D.1.
29. He further contended that one of the panchayathdars
namely; Sheshegowda has been examined as D.W.2, who
has deposed about Ex.D.1 - palu patti which is produced
before the Court and properties have been allotted in favour
of the respective parties and palu patti is a written document
where under, the first plaintiff and first defendant
represented their branches and signed the palu patti.
30. He also contended that in pursuance of the palu patti,
revenue entries have been mutated and respective shares in
the properties that have been allotted to the plaintiffs is also
specifically mentioned in the written statement and
therefore, there is no iota of truth in any of the contentions
urged on behalf of the plaintiffs which has been rightly
appreciated by the learned trial Judge in the impugned
judgment and sought for dismissal of the appeal.
31. In view of the rival contentions of the parties, following
points would arise for consideration:
1) Whether the plaintiffs have made out a case that
they are entitled for 3/4th share in the B and C
schedule properties?
2) Whether the impugned judgment is suffering from
legal infirmity or perversity and thus calls for
interference?
3) What order?
32. Regarding point Nos.1 and 2 : In the instant case, as
could be seen from schedule 'A' and written statement
averments, there is no dispute as to the relationship among
the parties. So also Base Gowda @ Basave Gowda being the
common prepositous and has inherited the properties from
his ancestors is not in dispute.
33. The material on record would disclose that Annegowda
died and he left behind defendants as his legal heirs.
Another son of Base Gowda namely H.B. Chandappa Gowda
is also no more. According to the material evidence on
record, there was a partition in the joint family by filing suit
in O.S.No.120/1986, on the file of Civil Judge, Senior
Division, Chikkamagalur, which was decreed. In the said
suit, Sakamma being the wife of Chandappa Gowda
represented the branch of Chandappa Gowda.
34. However, it is the case of the plaintiffs that despite the
said partition, plaintiffs and Anne Gowda continued to be in
the joint family. Manjunatha being the son of Base Gowda
through his third wife namely; Nagamma, who is the first
plaintiff died on 07.05.1996. Plaintiff No.1 (a) - Parvathi,
who is the wife of Manjunatha issued legal notice to
Vishwanath, who is the eldest son of Late Anne Gowda,
seeking her share by way of partition. It is her specific case
that there is no compliance of callings of said notice and
therefore, suit was necessitated.
35. First defendant while opposing the suit claim
specifically contended that there was a partition on
05.02.1997 in the presence of well wishers and
panchayathdars and said partition was also evidenced in
writing palu patti dated 05.02.1997 marked at Ex.D.1. It
was also the specific case of the defendants in the written
statement itself that the original palu patti remained with
Sheshegowda who is one of the panchayathdars. Said
Sheshegowda is examined as D.W.2 on behalf of the
defendants. Cross-examination of Sheshegowda did not
yield any positive material so as to disbelieve that there was
a panchayath conducted on 05.02.1997 and Ex.D.1 came to
be signed by respective heads of the branches.
36. Signature of Manjunatha is also found in Ex.D.1 as
Ex.D.1 (f).
37. No doubt P.W.2 Manjunatha denied his signature on
Ex.D.1. He pleads ignorance about the signatures found on
the plaint as well as vakalath. He has subscribed his left
thumb mark on the deposition. He also denies having given
Power of Attorney. Power of Attorney is none other than his
wife. She has deposed that Manjunatha has no worldly
knowledge and therefore, she has deposed on behalf of
Manjunatha.
38. If Manjunatha is not having wordly knowledge as is
contended by P.W.1, the suit should have been instituted by
getting a guardian appointed on behalf of Manjunatha. On
the contrary, suit is instituted in the name of Manjunatha and
he has signed on all pages of the plaint and vakalath by
signing as H.B. Manjunatha, where under letters 'H' and 'B'
are in English alphabets and word 'Manjunatha' is in Kannada
language. A bare look at the signatures found on the plaint
and vakalath, from the naked eye, it resembles the signature
found on Ex.D.1 (f). Therefore, there is every possibility that
in order to disown the contents of Ex.D.1, where under the
properties have been allotted also to Manjunatha,
Manjunatha might have taken a contention that signature
found on Ex.D.1 is not his signature. Therefore, the evidence
of D.W.2 Sheshegowda assumes importance.
39. In the cross-examination of D.W.2, he has pleaded
ignorance about number of wives of Base Gowda had.
However, he admitted that Nagamma wife of Base Gowda is
the mother of Manjunatha. He has answered that it is the
first plaintiff who had initiated talks of panchayath about a
week earlier to the panchayath. But, it was not in writing.
He has answered that all the children of Base Gowda were
not called for panchayath for the reason that Manjunatha and
Girijamma agreed that they would represent their respective
branches. He admits that female folk of the joint family were
not called for panchayath. He denied that he has actively
colluded with defendants and concocted Ex.D.1.
40. It is pertinent to note that revenue entries got mutated
as could be seen from the documentary evidence placed on
record after Ex.D.1. Ex.D.1 clearly mentions that 'B'
schedule of Ex.D.1 has fallen to the share of Manjunatha.
41. If at all there was a dispute as to the palu patti dated
05.02.1997, Manjunatha could not have enjoyed the
properties mentioned in 'B' schedule of Ex.D.1. Documents
marked at Ex.D.4 which is a mutation register extract shows
that the defendants have transacted further with the 'A'
schedule properties and exercise the ownership as per 'A'
schedule property of Ex.D.1.
42. So also other revenue documents which are the record
of rights extracts show that the properties mentioned in 'A'
schedule stands in the name of defendants.
43. Loan availed by Sri. Anne Gowda with State Bank of
Mysore in respect of 'A' schedule properties is evidenced by
producing document marked at Ex.D.18.
44. On cumulative consideration of these aspects of the
matter, the learned trial Judge came to the conclusion that
the contentions taken by the defendants that there was a
prior partition on 05.02.1997 as is evidenced under Ex.D.1 is
not only proved, but also acted upon by the parties and thus
dismissed the suit of the plaintiffs.
45. Even after re-appreciation of entire material evidence
on record, this Court is of the considered opinion that the
plaintiffs have not been able to establish that the suit
properties continued to be the joint family properties even
after Ex.D.1 dated 05.02.1997 so as to decree the suit as
prayed for by the plaintiffs.
46. On the contrary, in view of the foregoing discussion
and the material evidence placed on record, the learned trial
Judge has rightly appreciated the case of the plaintiffs by
supplementing cogent and convenience reasons for his
findings in the impugned judgment.
47. Thus, this Court is of the considered opinion that
plaintiffs have failed to establish their case and also pointing
out the legal infirmity or perversity in the impugned
judgment and calling for interference at the hands of this
Court.
Accordingly, point Nos.1 and 2 are answered in the
Negative.
48. Regarding Point No.3: In view of findings on point
Nos.1 and 2, following order is passed:
ORDER
Appeal is meritless and is hereby dismissed.
No order as to costs.
Sd/-
JUDGE
MR
