Karnataka High Court
Pramila vs Prasanna Kumari on 25 May, 2023
Bench: Shivashankar Amarannavar
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RSA No. 740 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
REGULAR SECOND APPEAL NO. 740 OF 2014 (PAR)
BETWEEN:
PRAMILA
W/O VARASINGEGOWDA
AGED ABOUT 46 YEARS,
R/AT CHAKKUR VILLAGE
SARAGUR HOBLI,
H.D.KOTE TALUK - 571 114.
...APPELLANT
(BY SRI SANDEEP K., ADVOCATE)
AND:
PRASANNA KUMARI
WIFE OF CHANNAKESHAVA
Digitally AGED ABOUT 42 YEARS,
signed by
PANKAJA R/AT PENJAHALLI VILLAGE,
S
ANTHARASANTHA HOBLI,
Location:
High H.D.KOTE TALUK - 571 114.
Court of
Karnataka ...RESPONDENT
(BY SRI.V.F.KUMBAR, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT & DECREE DATED 22.03.2014
PASSED IN R.A.NO.30/2013 ON THE FILE OF THE SENIOR
CIVIL JUDGE, HUNSUR, ALLOWING THE APPEAL AND SET
ASIDE THE JUDGMENT AND DECREE DATED 07.02.2013
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RSA No. 740 of 2014
PASSED IN OS.NO.113/2009 ON THE FILE OF CIVIL JUDGE,
H.D.KOTE, DISMISSING THE SUIT WITH COST.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The 1st defendant has filed this appeal seeking to set
aside the judgment and decree dated 22.03.2014 passed
by the Senior Civil Judge, Hunsur, in R.A.No.30/2013 and
praying to affirm the judgment and decree dated
07.02.2013 passed by the Civil Judge, H.D.Kote, in
O.S.No.113/2009.
2. For the sake of convenience, the parties are referred
to by their ranks in the Trial Court.
3. The plaintiff/respondent herein had filed a suit in
O.S.No.113/2009 seeking for the relief of partition and
separate possession of 1/3 rd share in the suit schedule
properties and to declare that 'Vibhaga Patra' (Partition
Deed) dated 02.05.1997 was null and void.
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4. The facts leading to filing of the suit are that
Devegowda and defendant No.2 - Kempamma were the
father and mother of the plaintiff - Prasanna Kumari and
defendant No.1 - Pramila and deceased son, Devesha. The
said Devegowda died about 25 years prior to filing of the
suit.
5. It was the case of the plaintiff that the suit schedule
properties were the ancestral properties of the plaintiff and
defendants and they were in joint possession and
enjoyment of the same. The plaintiff and defendants sold
an extent of 1 acre of land in Sy.No.295 of Chakkur
Village, out of 1 acre 35 guntas for their legal necessities
under the registered Sale Deed dated 18.04.1997 to
C.S.Lingegowda, son of Subbegowda. At the time of said
Sale Deed, the plaintiff was unmarried.
6. It was the further case of the plaintiff that the 1st
defendant and her husband Varasingegowda managed to
take the plaintiff and 2nd defendant to the office of the
Sub-registrar with dishonest intention to make unlawful
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gain by misusing their illiteracy stating that in order to sell
the land bearing Sy.No.295 measuring 1 acre to
Lingegowda, their presence was necessary and believing
his words, they went to the Sub-registrar's office and
registered the Sale Deed.
7. It was also the case of the plaintiff that in the year
2008, when she demanded for division of her lawful share
in the suit schedule properties, she came to know that the
1st defendant and her husband taking advantage of her
illiteracy and faithfulness, concocted the 'Vibhaga Patra',
which was null and void and not acted upon and got
registered another Sale Deed in respect of 20 guntas of
land in Sy.No.295 out of remaining 35 guntas on
21.02.2002 in favour of Shankaregowda. When plaintiff
demanded her lawful share, the 2nd defendant also advised
the 1st defendant to effect partition of her lawful share in
the suit schedule properties. The 1st defendant, however,
denied the lawful share of the plaintiff. The plaintiff left
with no other alternative got issued a legal notice to the
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defendants and thereafter, filed a suit claiming her share
in the suit schedule properties.
8. The 1st defendant has filed a written statement
admitting the relationship and that the suit schedule
properties were the ancestral and joint family properties of
the plaintiff and defendants, but denied the other
averments.
9. It was stated by the 1st defendant that the plaintiff
and the defendants had sold 1 acre in Sy.No.295 for
valuable consideration on 18.04.1997 in favour of
Lingegowda for the purpose of marriage expenses of the
plaintiff and executed the registered Sale Deed. It was
stated that the joint family divided the entire suit schedule
properties before the panchayathdars and executed the
Partition Deed and got it registered before the Sub-
registrar's office, H.D.Kote on 03.05.1997. It was also
stated that before registration of any document, the sub-
registrar would read over the contents of the document to
the concerned parties and thereafter, the thumb
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impression of the parties would be taken for registration
and therefore, the question of dishonesty to make
unlawful gain does not arise as it was to the knowledge of
the plaintiff. It was also stated that in the partition, the
land bearing Sy.No.296 measuring 3 acres 15 guntas and
2 ankanas of country tiled house had fallen to the share of
1st defendant and the land bearing Sy.No.295 measuring
35 guntas and 1 ankana of country tiled house had fallen
to the share of 2nd defendant and the plaintiff had received
Rs.70,000/- instead of immovable property from the
defendants as she was married to Penjahalli Village.
10. It was further stated that after her marriage, the
plaintiff was residing with her husband in the Penjahalli
village and she requested the 2nd defendant to pay
Rs.20,000/- for her family necessities. The 2nd defendant
sold 20 guntas of land in Sy.No.295 to Shankaregowda on
21.02.2002 for Rs.35,000/- and paid Rs.20,000/- to the
plaintiff. Thereafter, the 2nd defendant was enjoying
remaining 15 guntas of land.
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11. It was also stated that due to misunderstanding
between the 1st and 2nd defendants, the 2nd defendant
went to Penjahalli and was residing with the plaintiff. It
was further stated by the 1st defendant that the plaintiff
and the 2nd defendant thereafter colluded and filed a false
suit to harass her though there was already been a
partition and hence, the suit was not maintainable and
accordingly, she prayed for dismissal of the suit.
12. The 2nd defendant has also filed a written statement
admitting the relationship and the case put forth by the
plaintiff. It was stated that when the plaintiff demanded
for partition, the 2nd defendant advised the 1st defendant
to give her share in the suit schedule properties and
therefore, the 1st defendant asked her to go out of the
house and thereafter, she was residing in her brother's
house. She also stated that she was also entitled for her
lawful share.
13. On the basis of the said pleadings, the Trial Court
has framed the following issues:
RSA No. 740 of 2014
1. Whether the plaintiff proves that both plaintiff
and 1st defendant are in joint possession and
enjoyment of the suit schedule properties?
2. Whether the plaintiff made out her claim over
the suit schedule properties as contended in
the plaint?
3. Whether the plaintiff further proves that the 1st
defendant concocted the Vibhagapatra
Dt.02.05.1997?
4. Whether plaintiff is entitled for the relief of
partition and separate possession of the 1/3rd
share in the suit schedule properties?
5. Whether the plaintiff is entitled for the relief of
declaration declaring that the Vibhagapatra
dtd. 02.05.1997 is null and void?
6. Whether the plaintiff is entitled for mesne
profits?
7. What Order or Decree?
14. The plaintiff examined herself as P.W.1 and also
examined three other witnesses as P.Ws.2, 3 and 4 and
got marked 10 documents as Exs.P1 to P10.
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15. The 1st defendant examined herself as D.W.1 and
another witness as D.W.2 and got marked 37 documents
as Exs.D1 to D37. The 2nd defendant examined herself as
D.W.3.
16. After hearing the parties and considering the oral and
documentary evidence, the learned Trial Judge answered
issues 1 to 6 in the negative and dismissed the suit of the
plaintiff.
17. Being aggrieved by the said dismissal of the suit, the
plaintiff preferred an appeal before the Senior Civil Judge
at Hunsur in R.A.No.30/2013.
18. The First Appellate Court, after hearing the
arguments, has formulated the following points for
consideration:
1. Whether it is proved that Vibhagapatra
executed on 2/5/1997 is null and void?
2. Whether the appellant had made out that
judgment & decree passed by the trial Court is
not based on sound principles of law and the
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facts and circumstances of the case and the
same has to be interfered with?
3. What Order?
19. The First Appellate Court answered point Nos.1 and 2
in the affirmative and set aside the judgment of the Trial
Court and decreed the suit of the plaintiff awarding her
1/2 share in the suit schedule properties as her mother
(defendant No.2) had expired during the pendency of the
appeal and also declared that the Partition Deed registered
on 03.05.1997 was not binding on the plaintiff.
20. Aggrieved by the said judgment and decree passed
by the First Appellate Court, the 1st defendant has
preferred the present appeal.
21. This appeal came to be admitted to consider the
following substantial questions of law:
i) Whether the suit filed by the first
respondent was barred by limitation?
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RSA No. 740 of 2014
ii) Whether the first appellate court was in
error in holding that Ex.D2 is null and
void?
22. Heard the learned counsel for the appellant/1st
defendant and the learned counsel for the
respondent/plaintiff.
23. Learned counsel for the appellant would contend that
the plaintiff had studied up to fourth standard and she can
read and write Kannada and that she was aware of the
execution of the Partition Deed - Ex.D2. She had also
affixed her signature on Ex.D2 in the office of the Sub-
registrar after the document had been read over to her.
There was a dispute between the husband of the 1st
defendant and the 2nd defendant and the suit came to be
filed by the plaintiff at the instigation of the 2nd defendant.
24. Learned counsel for the appellant would also contend
that the Partition Deed - Ex.D2 came to be executed on
02.05.1997 and registered on 03.05.1997. The suit came
to be filed on 24.04.2009 and therefore, the suit was
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RSA No. 740 of 2014
barred by limitation. He also contends that as per Article
58 of the Limitation Act, 1963, the limitation is three years
to file a suit for declaration from the date when the right
to sue first accrues and that right to sue first accrued on
the date of registration of the Partition Deed i.e., on
03.05.1997.
25. He further contends that as the plaintiff was aware of
the registration of Partition Deed, which was a public
document registered in Sub-registrar's office available for
inspection as the registered books were kept in the office
in view of Section 51 of the Registration Act, 1908, she
was having constructive notice under Section 3 of the
Transfer of Property Act, 1882. He also contends that the
said Partition Deed - Ex.D2 was acted upon and from then,
the 1st defendant was in possession of her share allotted in
the said partition. He contends that on the basis of the
said Partition Deed, a mutation came to be effected which
was evidenced by Ex.D6. The plaintiff was a party to the
said Partition Deed - Ex.D2 and she failed to establish that
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the said Deed was registered playing fraud on her and
therefore, the First Appellate Court committed a serious
error in holding that Ex.D2 was null and void.
26. Learned counsel also refers to Section 17 of the
Limitation Act, 1963, which reads thus:
"17. Effect of fraud or mistake.--
(1) Where, in the case of any suit or application for
which a period of limitation is prescribed by this
Act,--
(a) the suit or application is based upon the fraud of
the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which a suit
or application is founded is concealed by the fraud of
any such person as aforesaid; or
(c) the suit or application is for relief from the
consequences of a mistake; or
(d) where any document necessary to establish the
right of the plaintiff or applicant has been
fraudulently concealed from him, the period of
limitation shall not begin to run until plaintiff or
applicant has discovered the fraud or the mistake or
could, with reasonable diligence, have discovered it;
or in the case of a concealed document, until the
plaintiff or the applicant first had the means of
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producing the concealed document or compelling its
production:
Provided that nothing in this section shall enable any
suit to be instituted or application to be made to
recover or enforce any charge against, or set aside
any transaction affecting, any property which--
(i) in the case of fraud, has been purchased for
valuable consideration by a person who was not a
party to the fraud and did not at the time of the
purchase know, or have reason to believe, that any
fraud had been committed, or
(ii) in the case of mistake, has been purchased for
valuable consideration subsequently to the
transaction in which the mistake was made, by a
person who did not know, or have reason to believe,
that the mistake had been made, or
(iii) in the case of a concealed document, has been
purchased for valuable consideration by a person
who was not a party to the concealment and, did not
at the time of purchase know, or have reason to
believe, that the document had been concealed.
(2) Where a judgment-debtor has, by fraud or force,
prevented the execution of a decree or order within
the period of limitation, the court may, on the
application of the judgment-creditor made after the
expiry of the said period extend the period for
execution of the decree or order:
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Provided that such application is made within one
year from the date of the discovery of the fraud or
the cessation of force, as the case may be."
27. He also contends that the First Appellate Court had
cast the burden on the 1st defendant to prove the
execution of the Partition Deed, which was not proper, as
it was the burden of the plaintiff to prove that the Partition
Deed - Ex.D2 was executed by playing fraud on her and
hence, he prays for dismissal of the suit.
28. Learned counsel for the respondent/plaintiff would
contend that the plaintiff has specifically pleaded in
paragraph 3 of her plaint that under what grounds her
signature was taken on the alleged Partition Deed on
03.05.1997 and the said pleading was established by the
evidence of P.Ws.2 to 4. As per the evidence of D.W.1, the
talks of partition have been taken place before the
Panchayathdars on 02.05.1997, but there was no evidence
to the said effect by the 1st defendant. D.W.2 - scribe had
stated that he drafted Ex.D2 - Partition Deed in the house
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of Lingegowda and D.W.1 has stated that Ex.D2 was
drafted in the Sub-registrar's office. He also contends that
Ex.D2 was not acted upon as the names of the sharers in
the said alleged Partition Deed have not been mutated in
the RTCs of the suit schedule properties.
29. He also contends that the alleged payment of
Rs.70,000/- to the plaintiff under Ex.D2 - Partition Deed
was not established and there was no endorsement for
having paid Rs.70,000/- in the Sub-registrar's office as
required under Section 58(c) of the Registration Act. The
plaintiff came to know regarding fraud played by the 1st
defendant in the year 2008 and she immediately filed a
suit and therefore, the suit was in time. He contends that
if fraud was established in the execution of the Partition
Deed, there was no limitation for filing of the suit.
30. He also contends that the sale of 20 guntas of land in
Sy.No.295 out of 35 guntas under Sale Deed Ex.D4 dated
21.02.2002 was by all the three i.e., the plaintiff and
defendants stating that it was their ancestral and joint
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family properties itself shows that on that day, the 1st
defendant had not disclosed regarding execution of the
alleged Partition Deed dated 03.05.1997, which
establishes the fact that the Partition Deed was not acted
upon. He, therefore, contends that considering all these
aspects, the First Appellate Court has rightly reversed the
judgment and decree passed by the Trial Court and
decreed the suit of the plaintiff as prayed for.
31. The admitted facts are that the plaintiff and the 1st
defendant were the sisters being daughters of the 2nd
defendant and the suit schedule properties were the
ancestral properties of the plaintiff and defendants.
Subsequent to the marriage of 1st defendant, her husband
was also staying in the house of the 2nd defendant. It was
also admitted that on 18.04.1997, the plaintiff and
defendants have jointly executed the Sale Deed in respect
of 1 acre of land in Sy.No.295 of Chakkur Village in favour
of Lingegowda and registered the same on 03.05.1997. It
was also the admitted fact that the plaintiff and
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defendants have sold 20 guntas of land in Sy.No.295 of
Chakkur Village to one Shankaregowda and registered the
Sale Deed on 21.02.2002.
32. The 2nd defendant, who was the mother of the
plaintiff had also supported the case of the plaintiff.
33. The two documents came to be registered on
03.05.1997; one was Sale Deed dated 18.04.1997
executed by the plaintiff and defendants in favour of
Lingegowda (P.W.3) and another was Partition Deed dated
02.05.1997 said to have been signed by the plaintiff and
defendants and attesting witnesses (P.Ws.2 to 4).
34. The said sale deed executed in favour of
Sri.Lingegowda is at Ex.D3 and it is bearing registration
No.152 and the partition deed (Ex.D2) is bearing
registration No.153 and both these documents were
registered on the same date ie., on 03.05.1997. From the
evidence of PWs.2 to 4, it is clear that all these witnesses
have signed Ex.D2. Their case is that the signatures were
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RSA No. 740 of 2014
obtained for the sale deed and that they are not aware of
the fact that they have signed the partition deed. Under
the partition deed - Ex.D2, it is stated that the plaintiff
has been paid Rs.70,000/-. It has not been suggested to
any of the witnesses that in their presence, the amount of
Rs.70,000/- has been paid to the plaintiff. There is no
endorsement made in the partition deed by the Sub
Registrar as required under Section 58(c) of the
Registration Act regarding payment of Rs.70,000/- to the
plaintiff towards her share. PWs.1 to 4 and DW3 have
stated that they affixed the signature in the Sub Registrar
Office on 03.05.1997 to the sale deed. They stated that
the signatures were taken to the partition deed under the
impression that it is a sale deed.
35. The First Appellate Court considering Section 3 of the
Transfer of Property Act and Sections 58 and 59 of the
Registration Act have rightly held that the conditions
necessary for valid attestation has not been satisfactorily
proved and further held that the person affixing the
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signature has no animus to attest. Therefore, the First
Appellate Court has not committed any error in coming to
the conclusion that the partition deed in question is void,
as it does not exist in the eye of law and therefore, the
cancellation of the void transaction does not arise.
36. The partition deed Ex.D2 is executed on 02.05.1997
and registered on 03.05.1997. The suit came to be filed in
the year 2008 seeking relief against the said partition
deed.
37. Learned counsel for the appellant would contend that
the suit is barred by limitation. No such contention has
been taken in the Trial Court by defendant No.1 who is the
appellant herein.
38. It is the case of the plaintiff that she came to know
regarding the fraud played by defendant No.1 in the year
2008 when she demanded her share. The plaintiff has
sought declaration regarding the said partition deed -
Ex.D2, As per Article 58 of the Limitation Act, 1963,
limitation is three years to obtain a declaration from the
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date when the right to sue accrues. As per Section 17
referred supra, the period of limitation shall not begun to
run until the plaintiff or the applicant has discovered the
fraud or mistake or could with reasonable diligence has
discovered it. It is the case of the plaintiff that she
discovered the fraud played by the plaintiff in the year
2008.
39. Learned counsel for the appellant would contend that
Ex.D2 is registered in the Sub Registrar Office and as per
Section 51 of the Registration Act, the register books are
kept in the office and as per Section 3 of the Transfer of
Property Act, the plaintiff has constructive notice of the act
of registration of the partition deed and more so, she is a
signatory to the said document. The said contention of the
learned counsel for the appellant cannot be accepted for
the below mentioned reasons:
(i) Even though the said Ex.D2 - partition deed
is registered in the year 1997, the record of
rights of the suit schedule properties were not
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mutated in the names of the respective share
holders as per Ex.D2 - partition deed. Only in
the year 2009, the name of defendant No.1
came to be mutated as per her share allotted in
Ex.D2 - partition deed.
(ii) Learned counsel for the appellant submitted
that the mutation has been effected in the year
1997-98 as per Ex.D37. It is MR No.19/1997-
98. Learned counsel for the appellant submitted
that based on this Ex.D37 entries have been
changed in the revenue records and R.T.C is at
Ex.D6. Ex.D6 is the R.T.C of Sy.No.296 for the
years 1997-98 and 1998-99. In the said R.T.C,
the names of defendant No.2 - Smt.Kempamma
and defendant No.1 - Smt.Prameela are jointly
mutated to an extent of 3 acres 15 guntas as per
MR No.19/1997-98. The said entry also does not
disclose that the said property is exclusively
allotted to the share of defendant No.1 -
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Smt.Prameela. In the cultivator's column also
the joint names of defendant Nos.1 and 2 are
mentioned. Except Ex.D6, the other R.T.Cs for
the subsequent years does not reflect any
mutation entry in the name of defendant No.1 as
per the partition deed - Ex.D6 or as per
M.R.No.19/1997-98.
40. Therefore, the contention of the plaintiff that she is
not aware of the said fraud played by defendant No.2 till
the year 2008 has some basis. Therefore, the suit of the
plaintiff is in time. Accordingly, both the substantial
questions of law are answered and the appeal is
dismissed.
Sd/-
JUDGE
PKS,GH
