Karnataka High Court
Sangappa S/O Irappa Madabhavi vs Shivaraya S/O Irappa Madabhavi on 6 December, 2023
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RSA No. 7053 of 2012
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.7053 OF 2012 (PAR/POS)
BETWEEN:
SANGAPPA S/O IRAPPA MADABHAVI
AGED ABOUT: 55 YEARS,
OCC: AGRICULTURE
R/O: WADE, TQ. INDI,
DIST. BIJAPUR-586101.
...APPELLANT
(BY SRI G G CHAGASHETTI, ADVOCATE)
AND:
1. SHIVARAYA S/O IRAPPA MADABHAVI
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: WADE, NOW RESIDING AT TAMBA,
Digitally signed TQ. INDI, DIST. BIJAPUR-586101.
by SWETA
KULKARNI
Location: HIGH 2. SMT. KALAVATI W/O SIDDANNA MADABHAVI
COURT OF AGE: 58 YEARS,
KARNATAKA
OCC: AGRICULTURE,
R/O WADE, NOW RESIDING AT TAMBA,
TQ. INDI, DIST. BIJAPUR-586101.
3. GURANNA @ GURAPPA
S/O SIDDANNA MADABHAVI
AGE: 40 YEARS,
OCC: AGRICULTURE,
R/O WADE, NOW RESIDING AT TAMBA,
TQ. INDI, DIST. BIJAPUR-586101.
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RSA No. 7053 of 2012
4. SHARANAPPA
S/O SIDDANNA MADABHAVI
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O WADE, NOW RESIDING AT TAMBA,
TQ. INDI, DIST. BIJAPUR-586101.
5. SANTHOSH
S/O SIDDANNA MADABHAVI
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O WADE, NOW RESIDING AT TAMBA,
TQ. INDI, DIST. BIJAPUR-586101.
6. SMT. NINGAMMA W/O SHIVASHARAN
KADABAGAON (PATIL),
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O ALMEL, TQ. INDI, DIST. BIJAPUR-586101.
...RESPONDENTS
(BY SRI CHAITANYA KUMAR C. M., ADV. FOR R1 TO R6)
THIS RSA IS FILED U/S. 100 OF CPC, TO ALLOW THIS
REGULAR SECOND APPEAL AND TO SET ASIDE THE JUDGMENT
AND DECREE DATED 17.12.2011 PASSED BY THE III ADDL.
DISTRICT JUDGE AT BIJAPUR IN R.A. NO.58/2009, ALLOWING
THE APPEAL AND SET-ASIDE THE JUDGMENT AND DECREE
DATED: 28.02.2009 PASSED BY THE CIVIL JUDGE (SR.DN.)
INDI, IN O.S. NO.33/2007 AND TO DISMISS THE SUIT OF THE
PLAINTIFF.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 7053 of 2012
JUDGMENT
The defendant in O.S.No.33/2007 on the file of the
learned Civil Judge (Sr.Dn.), Indi (hereinafter referred to as the
'Trial Court' for brevity) is impugning the judgment and decree
dated 17.12.2011 passed in R.A.No.58/2009 on the file of the
learned III Additional District Judge, Bijapur (hereinafter
referred to as the 'First Appellate Court' for brevity) allowing
the appeal and setting aside the impugned judgment and
decree dated 28.02.2009 passed in O.S.No.33/2007 and
decreeing the suit of the plaintiffs for partition and separate
possession and holding that plaintiff Nos.1, 2 to 5 and 6 are
entitled for partition and separate possession of their 1/4th
share each in the suit schedule properties by metes and
bounds.
2. For the sake of convenience, parties are referred to
as per their status and rank before the Trial Court.
3. Brief facts of the case are that, the plaintiffs filed
the suit O.S.No.77/2005, which was came to be re-numbered
as O.S.No.33/2007, seeking partition and separate possession
of the land bearing Sy.No.136/2001 measuring 20.30 acres and
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Sy.No.103 measuring 1.39 acres situated at Wade village, Indi
Taluk, Bijapur District (hereinafter referred to as suit
properties).
4. It is contended that Irappa Madabhavi is the
propositor and he is the father of plaintiff Nos.1, 6 and the
defendant. It is contended that Irappa Madabhavi had one
more son by name Siddanna, who died leaving behind his wife-
plaintiff Nos.2 and three children i.e., plaintiff Nos.3 to 5. The
suit properties are the ancestral properties of plaintiffs and
defendant. They are jointly enjoying the same. Plaintiffs
requested the defendant to effect partition and give their
respective shares. Since he had not agreed for the same,
plaintiff Nos.1 to 5 have filed the suit O.S.No.63/1996.
However, the said suit was came to be dismissed for default.
Even thereafter, the defendant was not ready and willing to
effect partition. Therefore present suit is filed seeking partition
and separate possession of their 1/3 share each in the suit
properties. It is stated that the cause of action has arisen on
08.07.2004 and accordingly, the plaintiffs have prayed for
partition and separate possession of suit properties and allot
them their respective shares by metes and bounds.
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5. The defendant has field his written statement
denying the contention of the plaintiffs. It is contended that the
suit is not maintainable, since the suit O.S.No.63/1996 filed by
the plaintiffs seeking similar relief was already dismissed for
non-prosecution. The said suit was not restored by the plaintiffs
to claim partition. Under such circumstances, the suit is liable
to be dismissed. The relationship between the parties as stated
by the plaintiffs is admitted. But description of the suit
properties are denied. It is also denied that the suit properties
are the ancestral properties and the same are being enjoyed
jointly.
6. It is contended that plaintiff No.1 is the elder
brother of defendant. Plaintiff Nos.2 and 5 are the wife and
sons of Siddanna the other brother of the defendant. Plaintiff
No.6 is the sister of plaintiff No.1 and the defendant. The suit
properties were not joint family properties. Father of plaintiff
No.1 and defendant owned Sy.No.136/1 measuring 20.30 acres
and Sy No.103 measuring 1.39 acres, and one house property
bearing VPC No.61 situated at Wade village. During the life
time of the father, plaintiff No.1 and father of plaintiff Nos.2 to
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5 and defendant have divided said properties amicably.
Sy.No.103 measuring 1.39 acres was allotted to the share of
Siddanna and Shivaraya-both the sons of Irappa, Sy.No.136/1
measuring 20.30 acres was allotted to the share of Sanganna
S/o Irappa Madabhavi. Siddanna and Shivaraya relinquished
their right in respect of Sy.No.103 measuring 1.39 acres in
favour of the defendant since the wives of Siddappa and also
Shivaraya were having vast agricultural properties. A varadi
was given to mutate the name of the defendant as per partition
deed and accordingly, M.E.No.920 was certified on 30.01.1989
entering the name of the defendant in respect of the suit
properties. Similarly, M.E.Nos.No.9736 and 629 were also came
to be certified in the respective names of Plaintiff No.1 and
Siddanna. Thus, since more than 30 years all the parties are
residing separately. Hence, defendant prays for dismissal of the
appeal.
7. On the basis of these pleadings, the Trial Court
framed following issues for consideration:
1) Whether the plaintiffs prove that the suit properties are
joint family properties of plaintiffs and defendant?
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2) Whether the defendant proves that already partition is
effected and they are in possession of respective shares
as pleaded?
3) Whether the suit is barred by time?
4) Whether the suit is not maintainable for dismissal of
earlier suit bearing O.S.No.63/1996?
5) Whether the plaintiffs are entitled for relief sought for?
6) What order or decree?
8. Plaintiff No.3, plaintiff No.1 and 6 have examined as
PWs.1 to 3 and got marked Exs.P.1 to 3 in respect of their
contentions. Defendant examined himself as DW.1 and got
examined DWs.2 to 4 and got marked Exs.D.1 to 20 in support
of his defence. The Trial Court after taking into consideration all
the materials on record, answered issue Nos.1, 3 to 5 in the
Negative and issue No.2 in the affirmative and dismissed the
suit of the plaintiff holding that there was already a partition in
the family and therefore, plaintiffs are not entitled for any
partition.
9. Being aggrieved by the same, the plaintiffs have
preferred R.A.No.58/2009. The First Appellate Court on re-
appreciation of materials on record allowed the appeal, decreed
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the suit of the plaintiff as stated above. Being aggrieved by the
same, defendant is before this Court.
10. Heard Sri.G.G.Chagashetti, learned counsel for the
appellant and Sri. Chaitanya Kumar C.M., learned counsel of
the respondents. Perused the materials on record, including the
Trial Court records.
11. Learned counsel for the appellant contended that
the relationship between the parties is admitted. It is also
admitted that the suit properties were owned by Irappa during
his life time. It is the specific contention of the defendant that
there was a partition amongst family members during the life
time of Irappa as per Ex.D.18 dated 19.12.1988. Even though
it is in the form of partition deed, it was in fact a family
arrangement entered into in the presence of elders in the
family and the villagers. Suit properties were divided amongst
the brothers. However, by taking into consideration the fact
that the wives of plaintiff No.1 and late Siddanna were having
sufficient properties in their names, they have given up their
right over the suit properties.
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12. Learned counsel further submitted that after
entering into family arrangement as per Ex.D.18, a varadi as
per Ex.D20 dated 19.12.1988 was given to the village
accountant requesting to mutate the name of the defendant in
the revenue records. Plaintiff No.1 and Siddanna-husband of
plaintiff No.2, father of plaintiff Nos.3 to 5 and propositor
Irappa have signed the said varadi Ex.D.20. Accordingly, name
of the defendant came to be mutated in the revenue records as
per M.E.No.920 i.e., Ex.D19. It is for this reason, the name of
the defendant is shown as owner in possession of property in
the record of rights Exs.P.1 and 2.
13. Learned counsel further submitted that plaintiff
No.1 being husband of plaintiff No.2, father of plaintiff Nos.3 to
5 had admittedly filed the suit O.S.No.63/1996 seeking similar
relief of partition and separate possession in respect of very
same properties. The said suit was not prosecuted by the
plaintiffs therein and the same was came to be dismissed for
default as per order dated 16.06.2004. The order sheet is
produced as per Ex.P.3. When it is admitted fact that the earlier
suit was dismissed for default and the suit was not revived for
consideration, the plaintiffs are barred from approaching the
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Court once again by filing the present suit. Therefore, it is
contended that the suit of the plaintiffs is barred by limitation
and also in view of earlier partition in the family on 19.12.1988,
the Trial Court rightly answered issue No.2 in the affirmative
and dismissed suit of the plaintiffs. However, the First Appellate
Court committed an error in decreeing the suit of the plaintiffs
without any basis. Hence, he prays for allowing the appeal.
14. Per contra, learned counsel for the
respondents/plaintiffs opposing the appeal submitted that
Ex.D.18 is the disputed document. The same is not proved by
the defendant in accordance with law. Moreover, Ex.D.18 is a
partition deed, which is not registered as per law. Further as
per Ex.D.18, brothers have relinquished right over portion of
suit property, inspite of that the document is not registered.
Therefore, the same cannot be looked into for any purpose,
mere revenue entries will not create any right in favour of
defendant.
15. Even if Ex.D.18 is to be considered as a gift deed
from the recital, even then it requires registration. Non
registration of Ex.D.18 bars consideration of the said document
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for any purpose. The mere entry in the revenue record will not
create any right over the suit properties in favour of the
defendant.
16. He placed reliance on the decision of the Co-
ordinate Bench of this Court in 'Hanumth Bheemappa Sanadi
and others Vs. Rudrappa Thammanna Sanadi and
others'1 in support of his contention. Learned counsel further
submitted that plaintiff No.6 is admittedly the daughter of
Iranna. In view of the amendment to Section 6 of the Hindu
Succession Act she becomes the coparcener by birth.
Therefore, she is entitled for equal share. Explanation
appended to proviso to Section 6 makes it clear that only
registered partition deed can exclude the daughters from
inheriting the property. Under such circumstances, the suit of
the plaintiffs is required to be decreed. Admittedly, she is not a
party either to Ex.P.18 or Ex.D.20. Therefore, suit of the
plaintiff is required to be decreed.
17. Learned counsel further submitted that even though
the suit O.S.No.63/1996 was filed by plaintiff No.1 and others
2005 (3) KCCR 2100
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seeking similar relief of partition in respect of suit properties,
the same was came to be dismissed for default on 16.06.2004.
It is thereafter present suit was field, as fresh cause of action
had arisen on 08.07.2004. In a suit for partition, there will be
reoccurring cause of action and therefore, dismissal of earlier
suit for default will not bar filing of a fresh suit on different
causes of action. He placed reliance on the decision of Division
Bench of this Court in 'Sri.S.K.Lakshminarasappa, since
deceased by his L.Rs. Vs.Sri.B.Rudraiah and others'2 in
support of his contention.
18. Learned counsel contended that even though the
Trial Court has committed an error in taking in to consideration
the unregistered partition deed-Ex.D.18 and dismissed the suit
of the plaintiff, the First Appellate Court on proper appreciation
of materials on record, decreed the suit of the plaintiffs. There
is no perversity or illegality in the impugned judgment and
decree. Therefore, he prays for dismissal of appeal.
19. This Court vide order dated 20.09.2019 framed the
following substantial question of law for consideration:
ILR 2012 Karnataka 4129
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1) Whether the presumptive value of the revenue
records shall be the earlier partition dated
02.01.1979?
2) Whether the plaintiff is not entitled to seek
partition by virtue of the earlier partition?
3) Whether the defendant-appellant proves the
partition dated 02.01.1979 was acted upon?
4) Whether the joint family disrupted as per
Ex.D.18?
My answer to the above point is in the Negative for
the following:
REASONS
20. Admittedly, plaintiff No.1-husband of the plaintiff
No.2 and father of the plaintiff Nos.3 to 5 had filed the suit
O.S.No.63/1996 before the Trial Court seeking similar relief of
partition and separate possession of the suit properties. The
said suit was came to be dismissed vide order dated
16.06.2004, which is as per Ex.D.1. Therefore, it is the
contention of the defendant that the present suit is barred by
the principles of resjudicata and also barred by limitation.
21. The Division Bench of this Court in
Sri.S.K.Lakshminarasapapa, (supra) considered a similar
position of law as to the effect of an order made under Order 9
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Rule 8 of CPC as to whether the same would amount to
resjudicata or not and held in para 45 as under:
45. Rule 9 of Order 9 is based on sound public
policy that no defendant should be vexed twice on the
same cause of action. The only effect of an order made
under Order 9 Rule 8 is that a fresh suit based on the
same cause of action is precluded by the provisions of
Order 9 Rule 9 of the Code. It will not apply to the cases
where the cause of action is recurring or continuous. A
suit for partition dismissed for default under Order 9 Rule
8 of CPC does not bar a subsequent suit for partition.
The reason is that the right to enforce a partition is a
continuous right, which is a legal incident of a joint
tenancy and which enures so long as the joint tenancy
continues. Cause of action is continuous in partition
cases which subsists so long as the property is held
jointly. In other words, the joint owner can file a suit for
partition, until partition is actually effected, irrespective
of the fact whether earlier suits for such partition were
dismissed for default or withdrawn or an earlier decree
for partition was not acted upon.
22. Therefore, the position of law is very well settled in
view of the dictum laid down by the Division Bench of this
Court. Hence, the contention of learned counsel for the
defendant that the suit is either barred on limitation or by
resjudicata cannot be accepted.
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23. The next contention raised by learned counsel for
the defendant is that there was an earlier partition in the family
as per Ex.D.18 and his name was came to be mutated in the
revenue records on the basis of joint varadi given by all the
sharers including his father as per Ex.D20, and the mutation
entry No.920 is certified as per Ex.D19. Accordingly, his name
was mutated in the revenue records as could be seen at
Exs.P.1 and 2. On the other hand, it is the contention of the
plaintiffs that Ex.D18 is an unregistered document and
therefore, the same cannot be considered as a partition deed
amongst sharers. When Ex.D.18 is excluded, all the members
in the family who are successors to the propositor Irappa are
equally entitled for the share. It is also contention of the
plaintiffs that plaintiff No.6 is the daughter, who was not a
party in the earlier suit nor a party to Ex.D.18 and Ex.D.20.
Under such circumstances, she is entitled for equal share in the
property.
24. Ex.D.18 is the partition deed under which,
defendant is claiming exclusive right over the property. Even
though it is written on the stamp paper, it is not sufficiently
stamped nor it is a registered document. Of course, document
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is marked without any objection raised by the plaintiff. Now the
position of law about such unregistered and insufficiently
stamped documents produced before the Court is to be
considered.
25. Section 17 of the Registration Act deals with the
documents of which registration is compulsory. A non-
testamentary instrument which purport or operate to create,
declare, assign, limit or extinguish, whether in present or in
future, any right, title or interest, whether vested on
contingent, of the value of one hundred rupees and upwards, to
or in immovable property is compulsorily required to be
registered.
26. Section 49 of the Registration Act deals with the
effect of non-registration of the documents required to be
registered under Section 17 of the Act. Such documents which
are required to be registered but not registered, which effects
any immovable property comprised therein be receive as
evidence of any transaction effecting such property or
conferring such power, unless it has been registered. As per the
proviso appended to Section 49, such an unregistered
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document affecting the immovable property and required to be
registered under law, if not registered, could be received in
evidence for any collateral transaction not required to be
effected by registered instrument.
27. The Co-Ordinate Bench of this Court in 'Abdul Sab
Nannesab Totad @ Jekinkatti since deceased by his Lrs
Vs. Sahadevappa Mallappa Suragond'3 considered a similar
document styled as partition deed, which was not registered
and held that a collateral purpose is a purpose which must be
unconnected and unrelated to main purpose of the document.
It must be independent of or divisible from the main
transaction. Therefore, it is held that collateral purpose can be
said to be a purpose other than creating, declaring, assigning,
limiting or extinguishing the right to immovable property. The
Court also held that such document which required registration,
if not registered, can be looked into for limited purpose to see
the nature of possession held by a person.
28. The Hon'ble Apex Court in 'Yellapu Uma
Maheswari and another Vs. Buddha Jagadheeswararao
RSA No.86/2005 (Dec) decided on 19.04.2017
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and others'4 categorically held that the nomenclature of the
document is not decisive factor to understand as to whether the
same is compulsorily registerable document under Section 17
of the Registration Act and which makes the document out of
the purview of Section 49 of the said Act. It is held in para 15
and 16 as under:
'15. It is well settled that the nomenclature given
to the document is not decisive factor but the nature and
substance of the transaction has to be determined with
reference to the terms of the documents and that the
admissibility of a document is entirely dependent upon
the recitals contained in that document but not on the
basis of the pleadings set up by the party who seeks to
introduce the document in question......'
16. Then the next question that falls for
consideration is whether these can be used for any
collateral purpose. The larger Bench of the Andhra
Pradesh High Court in Chinnappareddigari Peda Mutyala
Reddy V.Chinnappareddigari Venkata Reddy (1967 SCC
OnLine AP 4: AIR 1969 AP 242) has held that the whole
process of partition by metes and bounds and nature of
possession of various shares. In a suit for partition, an
unregistered document can be relied upon for collateral
purpose i.e., severancy of status, division of joint
property by metes and bounds and nature of possession
of various shares. In a suit for partition, an unregistered
(2015) 16 SCC 787
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document can be relied upon for collateral purpose i.e.,
severancy of title, nature of possession of various shares
but not for the primary purpose ie., division of joint
properties by metes and bounds. An unstamped
instrument is not admissible in evidence even for
collateral purpose, until the same is impounded.......'
(emphasis supplied)
29. The Hon'ble Apex Court again in 'Karukonda
Chalapathi Rao and another Vs. Karukonda Annapurna
Sampath Kumar5 considered a document styled as
'Kararunama' in the light of various pronouncements under
Section 17 and 49 of the Registration Act and held in para 34
as under:
34. As far as Section 49(1)(c) of the Registration
Act is concerned, it provides for the other consequence of
a compulsorily registrable document not being so
registered. That is, under Section 49(1)(a), a
compulsorily registrable document, which is not
registered, cannot produce any effect on the rights in
immovable property by way of creation, declaration,
assignment, limiting or extinguishment. Section 49(1)(c)
in effect, reinforces and safeguards against the dilution of
the mandate of Section 49(1)(a). Thus, it prevents an
unregistered document being used "as" evidence of the
transaction, which 'affects' immovable property. If the
Khararunama by itself, does not 'affect' immovable
2021 SCC Online SC 847
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property, as already explained, being a record of the
alleged past transaction, though relating to immovable
property, there would be no breach of Section 49(1)(c),
as it is not being used as evidence of a transaction
effecting such property........'
(emphasis supplied)
30. Thus the position of law is very well settled. If this
principle of law is applied to the facts of the case, Ex.D.18 is
styled as a partition deed. The recitals found therein discloses
that the parties to the document have partitioned two item of
properties i.e., the suit properties amongst themselves.
Sy.No.103 measuring 1.39 acres was allotted to the share of
Siddannna and Shivaraya sons of Irappa. Sy.No.136/1
measuring 23.1 acre was allotted to the share of Sangappa that
is defendant herein. However, recital of the document further
discloses that Siddanna and Shivaraya to whom Sy.No.103
measuring 1.39 acre was allotted have relinquished their right
over the same in favour of Sangappa-defendant, since the
wives of Siddanna and Shivaraya have inherited several
properties in their names and as a result, both the properties
referred to above were allotted to the share of Sangappa in the
presence of panchas. The recitals in Ex.D.18 makes it clear it is
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a out right partition deed, whereunder properties were allotted
to the share of Sangappa-defendant as the other shares have
relinquished their right over the same for the reasons stated
therein. Therefore, the documents creates the right, title and
interest in the suit property and declare the same as stated in
Section 17 1 (b) of the Registration Act and therefore, it is
compulsorily registerable document. When the same is not
registered as required under law, the effect of non-registration
as contended under Section 49 of the Registration Act will
follow and such document shall not be received in evidence to
prove such partition or relinquishment of the right by other
sharers and the document cannot be relied on to prove such
creation or declaration of right, title or interest over the
schedule property.
31. As per the proviso to Section 49, the document can
be used in evidence for collateral transaction as referred to
above. As held by the Hon'ble Apex Court, it cannot be used to
prove the primary purpose of the document that is division of
joint properties by metes and bounds or to prove
relinquishment of right of other sharers. When Ex.D18 cannot
be used for such purpose, the defendant cannot succeed in his
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contention that there was an earlier partition in the family, in
which, the schedule properties were allotted to his share, the
plaintiffs or their predecessors in interest have relinquished
their right over the same and therefore, the plaintiff is not
entitled for any relief. When the defendant failed to prove his
defence regarding earlier partition and relinquishment of right
by the other sharers independently, and when the relationship
of the plaintiffs with the defendant and nature of the suit
properties are admitted, the plaintiffs will be entitled for equal
share in the same. Merely on the basis of revenue records
Exs.D.19 and 20, rights of the plaintiffs to seek partition cannot
be taken away.
32. I have gone through the impugned judgment and
decree passed by the First Appellate Court. It has taken into
consideration the facts and circumstance of the case and rightly
decreed the suit by allowing the appeal. I do not find any
reason to interfere with the same.
33. In view of the discussion held above, I answer
substantial question of law in favour of respondents and against
appellant and proceed to pass the following.
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ORDER
i. The appeal is dismissed with cost.
ii. The impugned judgment and decree dated
17.12.2011 passed in R.A.No.58/2009 on the
file of III Additional District Judge, Bijapur is
confirmed.
Registry to send back the Trial Court records along with
copy of this judgment.
Sd/-
JUDGE
BH
