Sri Umamaheshwarappa S/O Late ... vs Sri Renukamurthy S/O Late ...
2023 Latest Caselaw 1319 Kant

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 15TH DAY OF FEBRUARY, 2023

                        BEFORE

       THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

            R.F.A.No.1773/2006(PAR/DEC)

BETWEEN:

SRI.UMAMAHESHWARAPPA,
S/O LATE CHANNABASAPPA,
MAJOR,
R/O GOLLARAHALLI,
JAVAGAL HOBLI, ARSIKERETALUK,
DISTRICT HASSAN - 573 103.          ... APPELLANT

(BY SMT. KSHAMA, ADVOCATE FOR
    SMT. SONA VAKKUND, ADVOCATE)

AND:

1.     SRI. RENUKAMURTHY,
       S/O LATE CHANNABASAPPA,
       AGE MAJOR,
       R/O GOLLARAHALLI,
       JAVAGAL HOBLI,
       ARSIKERE TALUK,
       DISTRICT HASSAN - 573 103.

2.     SMT. SIDDAMMA,
       W/O LATE CHANNABASAPPA,
       AGE MAJOR,
       R/O GOLLARAHALLI,
       JAVAGAL HOBLI,
       ARSIKERE TALUK,
       DISTRICT HASSAN - 573 103.
                           2




3.   SMT. NALINA,
     W/O KANTHARAJU,
     AGE MAJOR,
     R/O DUMMENAHALLI,
     KASABA,
     ARSIKERE TALUK,
     DISTRICT HASSAN -573 103.

4.   SMT. PREMA,
     W/O NEELAKANTAPPA,
     AGE MAJOR,
     R/O SATTERAMANAHALLI,
     HONAVALLI HOBLI,
     TIPTUR TALUK,
     DISTRICT HASSAN-572 201.

5.   SMT. CHANDRAKALA,
     W/O RENUKAMURTHY,
     AGE MAJOR,
     R/O GOLLARAHALLI,
     JAVAGAL HOBLI,
     ARSIKERE TALUK,
     DISTRICT HASSAN - 573 103.

6.   SRI.G.N.MALLAPPA,
     S/O NINGEGOWDA,
     SINCE DEAD REPRESENTED BY HIS LRs.,

6(a) SMT.GANGAMMA,
     W/O G.N.MALLAPPA,
     AGE MAJOR,

6(b) SRI.SIDDAPPA,
     S/O G.N.MALLAPPA,
     AGE MAJOR,

6(c) SRI.MAHESHWARAPPA,
     S/O B.S.MALLAPPA,
     AGE MAJOR,
                              3



6(d) SRI. CHANDRAPPA,
     S/O B.S.MALLAPPA
     AGE MAJOR,

6(e) SRI. MAHADEVAPPA,
     S/O B.S.MALLAPPA,
     AGE MAJOR,

      R-6(a) TO 6(e) ARE
      R/O GOLLARAHALLI,
      JAVAGAL HOBLI,
      ARSIKERE TALUK,
      DISTRICT HASSAN - 573 103.
                                        ... RESPONDENTS

(BY SRI.CHIDANANDA, ADVOCATE FOR R-1, R-2 & R-5;
    R-3, R-4, R-6(a), R-6(b), R-6(c) & R-6(d) ARE SERVED
    AND UNREPRESENTED;
    VIDE ORDER DATED:23.08.2010, NOTICE TO R-6(e) IS
    DISPENSED WITH)

      THIS APPEAL IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED:21.04.2006
PASSED IN O.S.No.89/2002 ON THE FILE OF THE CIVIL
JUDGE(SR.DN)     AND      ADDITIONAL    CJM.,    ARSIKERE,
DISMISSING     THE    SUIT   FOR   PARTITION,    SEPARATE
POSSESSION AND DECLARATION.


      THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR   JUDGMENT       ON   09.02.2023,   COMING   ON   FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
                                4



                       JUDGMENT

1. Umamaheshwarappa, the unsuccessful plaintiff in a

suit for partition filed against his brother, mother, two

sisters and his sister-in-law and the purchaser of one of

the family properties is in appeal challenging the

judgment of the Trial Court, by which, his claim for

partition has been rejected.

2. Umamaheshwarappa contended that his father

Channabasappa died about 20 years ago leaving behind

him, two sons, i.e., Umamaheshwarappa and

Renukamurthy (defendant No.1) apart from two

daughters Nalina (defendant No.3) and Prema

(defendant No.4) and his mother - Siddamma

(defendant No.2). He stated that after the death of his

father, he was the one, who was managing the affairs of

the family and had also performed the marriage of his

sisters by incurring huge expenditure.

3. He also stated that after his sisters were married,

he got married in the year 1994 and thereafter, had also

ensured that his younger brother was married. He stated

that after his younger brother got married, ill will started

between him and his mother and brother and they

started abusing him and his wife. Left with no other

alternative, he stated that a panchayath was convened

and a demand was put forth for partition of the ancestral

properties, but since the mother, brother and sisters did

not agree, he was constrained to file a suit in

O.S.No.144/1998.

4. He stated that in O.S.No.144/1998, a written

statement was filed by his mother and brother and

during the pendency of the said suit, they sold 2 acres in

Sy.No.83 of Gollarahalli Village in favour of defendant

No.6 and since there were some technical defects, he

withdrew the suit and thereafter, filed the present suit in

O.S.No.89/2002.

5. He stated that his younger brother Renukamurthy,

out of the joint family funds, had purchased item No.8 in

his wife - Chandrakala's name (defendant No.5). He

stated that it was inconceivable that his sister-in-law -

defendant No.5 could have purchased the property as

she hailed from poor family and her parents had six

daughters and having regard to their financial status, the

marriage of his younger brother Renukamurthy had been

celebrated at a temple and therefore, the purchase of

item No.8 could never be from any source of income

relatable to either her or her parents.

6. He stated that he had a share in the suit properties

and so also his sisters and therefore, the suit deserved

to be decreed.

7. He also contended that his mother and brother had

filed a written statement contending that there was a

partition effected on 05.01.1995 through Panchayath

Paalupatti, but no such document had been executed

and the so called document was a concocted document.

He stated that his brother - Renukamurthy by colluding

with the revenue authorities had managed to get the

khatha changed in his name and he had also got a loan

from the Corporation Bank for sinking a borewell.

8. On being summoned, his sisters Nalina and Prema

and the purchaser - Mallappa though received the

summons, did not choose to enter appearance and they

were consequently placed ex parte. His younger brother

- Renukamurthy and his mother - Siddamma and his

sister-in-law - Chandrakala entered appearance and filed

a written statement

9. They admitted the relationship as stated by

Umamaheshwarappa, but they denied that

Umamaheshwarappa had taken care of the family and

performed the marriage of his sisters and that he had

undergone lot of difficulties to improve the family

properties. It was stated that he had in fact taken away

a sum of Rs.1,00,000/- which was given as an insurance

amount for the death of his father and had wasted the

said amount.

10. It was stated that Renukamurthy along with his

mother and sisters had developed the suit properties all

by themselves and Umamaheshwarappa in the guise of

selling the crops used to take away virtually all the

income yielded by selling the crops. It was stated that

after this fact was made known to his mother, it was

decided that there should be a partition of the properties

in the presence of panchayathdars and accordingly, a

partition was effected on 05.01.1995 and a Paalupatti

was also drawn up.

11. It was also stated that in the said partition,

Umamaheshwarappa had taken all the fertile land and

Renukamurthy was given the lands which were unfertile

and had a low yield. It was stated that huge sums were

invested in improving the properties by Renukamurthy

by availing loans from various persons and also from the

Corporation Act and the properties were vastly

improved.

12. It was stated that Renukamurthy,though had sold

item No.4 of the suit schedule for Rs.50,000/- to clear

off the debts and interest, still continued to be a debtor.

13. It was also stated that item No.8 of the suit

schedule had been purchased by Chandrakala out of the

amount given by her parents at the time of her marriage

with Renukamurthy and as such, it was her self acquired

property and Umamaheshwarappa had no right to claim

share in her property.

14. It was also stated that Umamaheshwarappa had no

right to state that the daughters of Channabasappa were

entitled to equal share under the Hindu Succession

(Amendment) Act, 2005, since the properties had been

partitioned in the year 1995 itself.

15. It was also stated that the properties which had

fallen to the share of Renukamurthy had been

mortgaged to Corporation Bank for availing of a loan and

the same was also mentioned in the RTC extract. It was

also stated that the partition effected on 05.01.1995 had

been reflected by mutation of revenue entries in

M.R.No.4/1996-97. It was, therefore, stated that there

was absolutely no merit in the claim put forth by

Umamaheshwarappa and the suit was liable to be

dismissed.

16. Chandrakala, wife of Renukamurthy also filed a

written statement reiterating the averments of her

husband. She, however, stated that item No.8 was

purchased from the amount given to her by her parents

at the time of her marriage and therefore, it was her

Streedhana property over which no claim can be put

forth by Umamaheshwarappa.

17. The Trial Court, on consideration of the pleadings,

framed as many as eight issues and an additional issue.

18. Umamaheshwarappa examined himself as P.W.1

and got 19 documents admitted in evidence and marked

as exhibits.

19. Renukamurthy got himself examined as D.W.1 and

his wife Chandrakala was examined as D.W.5. Witnesses

to the Partition Deed were examined as D.W.2 and

D.W.3 and a Bank Official of the Corporation Bank was

examined as D.W.4. In all, 25 documents were admitted

in evidence and marked as exhibits.

20. The Trial Court, on assessment of evidence

adduced before it, came to the conclusion that there was

indeed a partition effected between the two brothers on

05.01.1995 and it was reflected in the mutation effected

pursuant to the said partition.

21. The Trial Court, also taking note of the fact that

Umamaheshwarappa had admitted that there had been a

partition in the year 1995 during the course of his cross-

examination on more than one occasion, held that that

the present suit for partition was untenable.

22. The Trial Court also recorded a finding that item

No.8 was purchased by Chandrakala out of her amount

given in consideration of her marriage to Renukamurthy

and it was, therefore, her separate property, which could

not be subjected to a partition. The Trial Court

accordingly dismissed the suit.

23. Being aggrieved, Umamaheshwarappa is in appeal

contending that the judgment and decree of the Trial

Court is unsustainable.

24. Smt.Kshama, learned counsel appearing for

Umamaheshwarappa contended that the Trial Court

could not have come to the conclusion that there had

been a partition effected on 05.01.1995 between

Umamaheshwarappa and Renukamurthy, since that

document was not before the Court.

25. She contended that a stray admission could not be

made the basis for decreeing the suit. She also

contended that there was absolutely no credible

evidence to record a finding that there had been a

partition between Umamaheshwarappa and

Renukamurthy in order to non-suit the claim of

Umamaheshwarappa.

26. Learned counsel also contended that partition put

forth was admittedly through an unregistered document

which was not even placed before the Court and

therefore, it was just and necessary to grant a decree for

partition.

27. Learned counsel for Renukamurthy, on the other

hand, contended that the judgment and decree of the

Trial Court was a well reasoned judgment which did not

call for any interference.

28. He submitted that an unequivocal admission on the

part of Umamaheshwarappa regarding partition effected

on 05.01.1995 had rightly been considered by the Trial

Court and a clear finding had been recorded that the

evidence adduced by the partition in its entirety proved

that there was a partition in the year 1995 and

therefore, the decree could not be disturbed.

29. In the light of the submissions made by both the

parties, the only point that arises for consideration in

this appeal is:

Whether the Trial Court was justified in coming to the conclusion that there had been a partition effected between Umamaheshwarappa and Renukamurthy and therefore, the subsequent claim for partition was untenable?

30. As stated above, the case put forth by

Umamaheshwarappa was that there had been no

partition and he was being ill treated after

Renukamurthy got married. In fact, it was his specific

case that he had sought for a panchayat to be convened,

but since that was not acceded to, he had been

constrained to file the earlier suit in O.S.No.144/1998.

However, during the course of his cross-examination,

Umamaheshwarappa stated as follows:

"5. ¤¦.3 ¥ÀºÀtÂAiÀÄ°è £À£Àß ¥Àwß VÃvÁ gÀªÀgÀ ºÉ¸ÀjUÉ SÁvÉAiÀiÁVzÉ CAzÀgÉ ¸Àj. £Á£ÀÄ ¨ÁåAQ£À°è ¸Á® ¥ÀqÉAiÀÄĪÀ ¸À®ÄªÁV £À£Àß »¸ÉìUÉ §AzÀ SÁvÉAiÀÄ£ÀÄß £À£Àß ¥Àwß ºÉ¸ÀjUÉ SÁvÉ §zÀ¯ÁªÀuÉ ªÀiÁr¹zÉ. ¤¦.7gÀ ¥ÀæPÁgÀ £À£Àß »¸ÉìUÉ §AzÀ ¸ÀévÀÛ£ÀÄß £À£Àß ºÉAqÀw ºÉ¸ÀjUÉ §zÀ¯ÁªÀuÉ ªÀiÁr JAzÀÄ Cfð ¤ÃrzÉÝ CAzÀgÉ ¸Àj. £ÀªÀÄä ªÀÄvÀÄÛ ¥ÀæwªÁ¢UÀ¼À £ÀqÀÄªÉ £ÁªÀÅ ¸Áé¢üãÀzÀ°ègÀĪÀ ¸ÀéwÛUÉ ¸ÀA§AzÀ¥ÀlÖAvÉ SÁvÉ §zÀ¯ÁªÀuÉAiÀiÁVªÉ CAzÀgÉ ¸Àj. 1995gÀ «¨sÁUÀ¥ÀvÀæ C£ÀÄ ¸Àj¹ SÁvÀ §zÀ¯ÁªÀuÉAiÀiÁVzÉ CAzÀgÉ ¸Àj."

31. A reading of the above passage would indicate that

Umamaheshwarappa categorically admitted that he had

transferred the property that had been allotted to his

share in favour of his wife - Geethaunder Ex.P3. He also

admitted that the property which had been allotted to

him as his share was requested to be transferred in the

name of his wife as per the application - Ex.P7. He also

went on to admit that the possession of the properties

was as per the division of the properties. He ultimately

clearly stated that khatha was made out in accordance

with 1995 Partition Deed.

32. In the light of this unequivocal admission, it would

be impossible to accept the contention that there had

been no partition effected between Umamaheshwarappa

and Renukamurthy in the year 1995.

33. Umamaheshwarappa also stated further in his

cross-examination as follows:

"12. M.J£ï.144:98 zÀªÉAiÀÄ£ÀÄß £Á£ÀÄ ¸À°è¹ ¸ÀzÀj zÁªÉAiÀÄ°è £À£ÀUÉ ¤ÃrzÀ ¨sÁUÀ ¸Àj E®è JAzÀÄ ºÉýzÉÝ CAzÀgÉ ¸Àj. D ªÁådåzÀ°èAiÀÄÆ ¸ÀºÀ 1995gÀ ¨sÁUÀzÀAvÉ £À£ÀUÉ ¨sÁUÀ §A¢vÀÄÛ CAzÀgÉ ¸Àj. £À£ÀUÉ 7 JPÀgÉ 22 UÀÄAmÉ £À£Àß vÀªÀÄä¤UÉ 7 JPÀgÉ 9 UÀÄAmÉ d«ÄãÀÄ §A¢zÀÄÝ, E£ÀÆß AiÀiÁªÀÅzÉà D¹Û £ÀªÀÄä PÀÄlÄA§zÀ°è®è."

34. A reading of the above passage would also go to

show that Umamaheshwarappa had once again admitted

that there was a partition in the year 1995 and under

this partition, he was given 7 acres 22 guntas, whereas

his younger brother Renukamurthy was allotted only 7

acres 9 guntas. This also indicates that

Umamaheshwarappa, in fact, got 13 guntas more than

his brother.

35. Renukamurthy was also subjected to cross-

examination. The suggestions put to Renukamurthy by

Umamaheshwarappa's counsel would also be relevant. At

paragraph 11 of the cross-examination, the following

answers were recorded to the suggestions put forth by

Umamaheshwarappa's counsel:

"11. 1995gÀ°èAiÉÄà MAzÀÄ ¥Á®Ä¥ÁjPÀvÉ CVzÀÄÝ £ÀªÀÄä C¹Û ªÁ¢UÀÆ, ªÁ¢AiÀÄ C¹Û £ÀªÀÄUÀÆ §AzÀ PÁgÀt CzÀÄ ¸Àj E®èªÉAzÀÄ CjzÀÄ ºÁQ £ÀAvÀgÀ E£ÉÆßAzÀÄ ¥Á®Ä¥ÁjPÀvÀ£ÀÄß ªÀiÁr¹zɪÀÅ. D ¸ÀªÀÄAiÀÄzÀ°è MAzÉà MAzÀÄ ¥Á®Ä¥ÁjPÀvÉ §gÉAiÀįÁ¬ÄvÀÄ. ¥Á®Ä¥ÁjPÀvÉ §gÉAiÀÄĪÀ 6 wAUÀ¼À ªÉÆzÀ®Ä £À£Àß ªÀÄvÀÄÛ ªÁ¢AiÀĪÀÄ£À¸ÁÛ¥À GAmÁVvÀÄÛ. ¨ÉgÀ¼ÀZÀÄÑ ªÀiÁrzÀ ¥Á®Ä¥ÁjPÀvÉ ªÀiÁvÀæ C zÀE£À D¬ÄvÀÄ. ªÁ¢AiÀÄ ºÉ¸Àj£À°è ¸ÀévÀÄÛ EzÀÝ PÁgÀt DvÀ£Éà SÁvÀ ªÀiÁr¹PÉÆlÖzÀÄÝ SÁvÉ §zÀ¯ÁªÀuɪÀiÁqÀĪÁUÀ ¥Á®Ä¥ÁjPÀvÉ ¤ÃqÉzÀ §UÉÎ £À£ÀUÉ UÉÆwÛ®è. ¥Á®Ä¥ÁjPÀw£À°è £ÀªÀÄä vÁ¬Ä »¸ÉìUÁV AiÀiÁªÀ D¹Û PÉÆqÀ°®è. CzÀgÉ fêÀ£ÁA±ÀPÉÌAzÀÄ PÉÆmÉÖªÀÅ."

36. As could be seen from the said passage, specific

suggestions were made that a Paalupatti had been

agreed upon and had also been reduced into writing and

as a matter of fact, there had been a discord between

the brothers about six months prior to the execution of

Paalupatti. A suggestion was also put that a written

Paalupatti was entered into in the year 1995 was redone

due to the discord. These suggestions put to

Renukamurthy clearly indicate that there was indeed a

partition which had been effected in the year 1995.

37. It may also be pertinent to state here that pursuant

to this Paalupatti, both the brothers approached the

revenue authorities with a request for mutation of the

revenue records. In fact, mutation register extract

related to M.R.No.4/1996-97 contains the following

endorsement:

"CfðzÁgÀgÀÄUÀ¼ÁzÀ 1£Éà GªÀiÁªÀĺÉñÀégÀ¥Àà, 2£Éà f.¹.gÉÃtÄPÀªÀÄÆwð ©£ï ZÀ£Àߧ¸À¥Àà EªÀgÀÄ SÁvÉ §zÀ¯ÁªÀuÉUÉà Cfð¸À°è¹zÀgÀ ªÉÄÃgÉ UÁæªÀÄPÉÌ ¨sÉÃn¤Ãr CUÀvÀå zÁR®wAiÀÄ£ÀÄß ¸ÀAUÀ滸À¯ÁVzÉ. SÁvÉAiÀÄÄ CfðzÁgÀgÀÄUÀ¼À vÁ¬Ä ¹zÀݪÀÄä ºÁUÀÆ CfðzÁgÀ GªÀiÁGºÉñÀégÀ¥Àà EªÀgÀ ºÉ¸ÀjUÉ EgÀÄvÀÛzÉ. CfðzÁgÀgÀÄUÀ¼À vÀAzÉ ¥sÀªÀw AiÀiÁVgÀÄvÀÛgÉ. «¨sÁUÀ¥ÀvÀæzÀAvÉ F ¢£ÁAPÀ 5-1-1995gÀAzÀÄ «¨sÁUÀªÁVgÀÄvÀÛgÉ."

38. As could be seen from the said extract, a joint

application was given for mutating the names of the

brothers in accordance with the Paalupatti dated

05.01.1995. This extract confirms the fact that 7 acres

22 guntas was allotted to Umamaheshwarappa and 7

acres 9 guntas was allotted to Renukamurthy. This

document was in fact produced by Umamaheshwarappa

himself. Umamaheshwarappa also produced the

mutation extract, which indicated that 3 acres 33 guntas

in Sy.No.47/2 was transferred in his wife's name. The

preamble to the said extract reads as follows:

"£ÀA§gïDgï.Dgï.n 857/99-2000

CgÀ¹ÃPÉgÉ vÁ®ÆPÀÄ eÁªÀUÀvÀ ºÉÆç½ UÉÆ®ègÀºÀ½î UÁæªÀÄ ªÁ¹ VÃvÁ PÉÆÃA GªÀiÁªÀĺÉñÀégÀ¥Àà EªÀgÀÄ SÁvÉ §zÀ¯ÁªÀuÉUÉ Cfð ¸À°è¹zÀgÀ ªÉÄÃgÉ UÁæªÀÄPÉÌ ¨ÉÃn ¤Ãr CUÀvÀÛöåzÁR¯ÁvÉUÀ¼À£ÀÄß ¸ÀAUÀ滸À¯ÁVzÉ. SÁvÉAiÀÄÄ EªÀgÀ UÀAqÀÀ f.¹ GªÀiÁªÀĺÉñÀégÀ¥Àà ©£ï ZÀ£Àߧ¸À¥Àà EªÀgÀ ºÉ¸Àj£À°è EzÀÄÝ ¸À.£ÀA47/2gÀ°è 3.33 UÀÄAmÉ DPÁgÀ 13.04 ¥ÉÊAiÀļÀî d«ÄãÀÄ ºÉýPÉ ºÁUÀÄ UÁæªÀÄ ªÀĺÀdÆgÀÄ ªÀA±ÀªÀÈPÀëzÀAvÉ ¸Àj¬ÄgÀÄvÀÛzÉ.

UÁæ.¯Éà ªÀgÀ¢ UÁæªÀÄzÀ°è 21AAiÀÄ£ÀÄß ¥ÀæZÀÆgÀ ¥Àr¸À¯ÁVzÀÄ ¤V¢vÀ CªÀ¢AiÉÆüÀUÉ AiÀiÁªÀ vÀPÀgÁgÀÄ §A¢gÀĪÀÅ¢®è CfðzÁgï VÃvÁ PÉÆÃA f.¹.GªÀiÁªÀĺÉñÀégÀ EªÀjUÉ ¹«¯ïUÉ ºÉÆgÀvÀÄ¥Àr¹ SÁvÉ DzÉñÀ DUÀ§ºÀÄzÁV DjPÉ."

39. As could be seen from this document, the entry in

relation to Sy.No.47/2 was standing in the name of

Umamaheshwarappa and was later transferred in the

name of his wife as requested by him. As noticed above,

Umamaheshwarappa admitted, during the course of

cross-examination, that the share that had been allotted

to him was transferred in the name of his wife. These

two documents read in conjunction with the admission of

Umamaheshwarappa leaves no room for doubt that there

was indeed a partition effected between two brothers

and the revenue entries were also mutated accordingly.

40. Though learned counsel for the appellant

Umamaheshwarappa strenuously contended that the

xerox copy of the Paalupatti dated 05.01.1995 which

was in Renukamurthy's possession was not produced, a

perusal of the record does indicate that the copy of

Paalupatti was indeed produced along with a memo

dated 15.02.2005.

41. On perusal of this Paalupatti, it is seen that

Paalupatti had been signed by the mother Siddamma

and the two brothers Umamaheshwarappa and

Renukamurthy. On comparison of the signatures on the

plaint and the written statement with the signatures

found in Paalupatti dated 05.01.1995, it is clear that

they are one and the same. Though, technically this

document cannot be looked into as it had not been

admitted in evidence, however, as Umamaheshwarappa

had admitted in his cross-examination that the khathas

were made out pursuant to 1995 partition, in my view,

the said document can definitely be referred to in order

to ascertain the fact as to whether there was indeed a

partition between two brothers.

42. It is also noticed that the partition between the two

brothers had resulted in both of them getting almost the

same extent of land. In fact, Umamaheshwarappa had

got 13 guntas more than his brother Renukamurthy

under the partition. Renukamurthy in order to establish

that there was a partition and that he was enjoying the

properties allotted to him exclusively had produced not

only the revenue records, but also the documents to

show that he had raised loans by mortgaging the

properties that were allotted to him to Corporation Bank

and he had also produced documents to indicate the

amount spent by him for availing of a drip irrigation

system and also for sinking a borewell and for installing

a pump set. He also produced the order of regularisation

of power connection passed by the Electricity Board in

the year 1998 and also the electricity bills to indicate

that he was in the exclusive possession of the properties

that had been allotted to him under the partition.

43. In my view, on consideration of evidence in its

entirety, it is clear that the partition between two

brothers had been clearly established beyond any doubt.

44. It may also be pertinent to state here that the

Partition Deed was not registered, nevertheless, the

same can be taken into consideration in the light of the

judgment rendered in VINEETA SHARMA Vs. RAKESH

SHARMA - (2020) 9 SCC 1, in which, it was observed

that if an oral partition is relatable to the change of

revenue entries which have continued for a long period

of time, the partition can be accepted. The Apex Court

has also observed as under:

"130. Earlier, an oral partition was permissible, and at the same time, the burden of proof remained on the person who asserted that there was a partition. It is also settled law that cesser of commonality is not conclusive proof of partition, merely by the reason that the members are separated in food and residence for the convenience, and separate residence at different places due to service or otherwise does not show separation. Several acts, though not conclusive proof of partition, may lead to that conclusion in conjunction with various other facts. Such as separate occupation of portions, division of the income of the joint property, definement of shares

in the joint property in the revenue or land registration records, mutual transactions, as observed in Bhagwani Kunwar v. Mohan Singh - 1925 SCC OnLine PC 27: AIR 1925 PC 132 and Digambar Adhar Patil v. Devram Girdhar Patil - 1995 Supp (2) SCC 428 : AIR 1995 SC 1728.

137.5 .... 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 effected by a decree of a court, it may be accepted."

In this view of the matter, the argument of the learned

counsel for the appellant cannot be accepted to the

effect that unregistered partition would have to be

ignored.

45. Learned counsel for the appellant also sought to

rely upon the decisions rendered by the Apex Court in

the case of CHIKKAM KORESWARA RAO Vs. CHIKKAM

SUBBA RAO & OTHERS - 1970(1) SCC 558, which had

been followed by this Court in the case of

SMT.PARAMESWARI BAI, BANGALORE Vs.

MUTHOJIRAO SCINDIA, BANGALORE - ILR 1981 KAR 78

to put forth the contention that an admission should be

read along with evidence given by a party in his chief

examination and the admission cannot be read in

isolation. In my view, these decisions cannot support the

case of the appellant since in the present case, as

recorded above, there was a clear and unequivocal

admission on more than one occasion during cross

examination by Umamaheshwarappa that there was

indeed a partition effected between the brothers in the

year 1995.

46. Learned counsel also sought to rely upon the

judgment of this Court in the case of

HANUMATHBHEEMAPPA SANADI & OTHERS Vs.

RUDRAPPATHAMMANNA SANADI & OTHERS - AIR 2005

KAR 393 to contend that the entries made in the record

of rights did not prove the partition. In that case, this

Court was dealing with the case in which there had been

no averment in the written statement regarding

convening of a panchayat and an averment as to

whether Paalupatti or a joint wardi had been prepared

and in that context, this Court held that entries in

revenue records would not prove a partition. In this

case, however, not only it was pleaded that there was

Paalupatti executed on 05.01.1995, but the same was

also admitted by Umamaheshwarappa and it was also

reflected in the revenue records. It is, therefore, clear

that this judgment also has no application to the present

case.

47. Learned counsel also placed reliance on the

decision of the Apex Court in the case of in the case of

ROOP KUMAR Vs. MOHAN THEDANI - (2003) 6 SCC 595

to contend that Section 92 of the Indian Evidence Act,

1872 prevented the oral evidence being adduced for the

purpose of varying the contract, whenever a written

contract was pleaded. This judgment can be of no avail

to the appellant since in the present case, as a matter of

fact, the Paalupatti dated 05.01.1995 had indeed been

produced.

48. It is, therefore, clear that none of the decisions

relied upon by the appellant's counsel would assist to

further her case.

49. As far as the claim regarding item No.8 is

concerned, it is to be stated here that admittedly the

said property was purchased by Chandrakala. Even if it is

accepted for the sake of argument that it was purchased

in her name by Renukamurthy, nevertheless, it would be

a property which she possessed after the Hindu

Succession Act came into force and it would, therefore,

be her absolute property by virtue of Section 14 of the

Hindu Succession Act and as a consequence, none of the

family members would have a right to stake a claim over

her property.

50. It may also be pertinent to state here that there is

absolutely no evidence forthcoming as to how much

income the family properties yielded and which of the

family members provided her with money to purchase

the property. On the other hand, Umamaheshwarappa

had himself admitted during the course of his cross-

examination that he himself had called upon her parents

to give his brother a handsome dowry at the time of the

marriage of his brother and this evidence by itself would

be indicative of the fact that she was capable of

purchasing the property through the financial assistance

of her parents.

51. In view of the above, the Trial Court has correctly

come to the conclusion that the admissions of

Umamaheshwarappa coupled with the mutation register

extract clearly and conclusively proved that there had

been indeed a partition between two brothers. This

reasoning of the Trial Court being supported by the

material on record, the impugned judgment and decree

is just and proper and does not call for interference. The

appeal is, therefore, dismissed.

Sd/-

JUDGE PKS