Karnataka High Court

Smt Hanumavva vs Smt Mariyavva on 28 November, 2023

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                                                            NC: 2023:KHC-D:13902
                                                                 RSA No. 330 of 2007




                                   IN THE HIGH COURT OF KARNATAKA,
                                           DHARWAD BENCH

                             DATED THIS THE 28TH DAY OF NOVEMBER, 2023

                                                  BEFORE

                               THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

                             REGULAR SECOND APPEAL NO.330 OF 2007 (PAR)

                        BETWEEN:

                        1.    SMT. HANUMAVVA
                              W/O. RUDRAPPA CHALAGERI,
                              AGED: 58 YEARS,
                              OCC: HOUSEHOLD WORK,
                              R/O: TUMMINAKATTI,
                              TQ: RANEBENNUR-581115.

                        2.    YALLAPPA
                              S/O. SANNARAMAPPA VADARAR
                              AGE: 53 YEARS, OCC: COOLIE,
                              R/O: TUMMINAKATTI,
                              TQ: RANEBENNUR-581115.
           Digitally
           signed by
           VISHAL       3.    BHARMAPPA
VISHAL     NINGAPPA
NINGAPPA   PATTIHAL           S/O. SANNARAMAPPA VADARAR
PATTIHAL   Date:
                              AGE: 48 YEARS, OCC: COOLIE,
           2023.12.04
           12:46:49           R/O: TUMMINAKATTI,
           +0530
                              TQ: RANEBENNUR-581115.

                        4.    IRAPPA
                              S/O. SANNARAMAPPA VADARAR
                              AGE: 43 YEARS, OCC:COOLIE,
                              R/O: TUMMINAKATTI,
                              TQ: RANEBENNUR-581115.

                        5.    NINGAPPA
                              S/O. SANNARAMAPPA VADARAR
                              AGE: 38 YEARS, OCC: COOLIE,
                              R/O: TUMMINAKATTI,
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                                   NC: 2023:KHC-D:13902
                                        RSA No. 330 of 2007




      TQ: RANEBENNUR-581115.

6.    KUBERAPPA
      S/O. SANNARAMAPPA VADARAR
      AGE: 33 YEARS, OCC:COOLIE,
      R/O: TUMMINAKATTI,
      TQ: RANEBENNUR-581115.
                                               ... APPELLANTS

(BY    SRI. OMKAR L. DESAI, ADVOCATE FOR
       SRI. G. K. HIREGOUDAR, ADVOCATE)


AND:

1.    SMT. MARIYAVVA
      W/O. DODDAGUDDAPPA VADARAR
      AGE: 68 YEARS, OCC: HOUSEHOLD WORK,
      R/O: TUMMINAKATTI,
      TQ: RANEBENNUR-581115.

2.    YALLAPPA
      W/O. DODDAGUNDDAPPA VADARAR
      AGE: 48 YEARS, OCC;NIL,
      R/O: TUMMINAKATTI,
      TQ: RANEBENNUR-581115.

3.    RAMACHANDRAPPA
      S/O. DODDA-GUNDDAPPA VADARAR,
      AGE: 43 YEARS, OCC:NIL,
      R/O: TUMMINAKATTI,
      TQ: RANEBENNUR-581115.

4.    KARIYALLAPPA
      S/O DODDAGUNDDAPPA VADARAR
      AGE: 33 YEARS, OCC:NIL,
      R/O: TUMMINAKATTI,
      TQ: RANEBENNUR-581115.

5.    HANUMANTAPPA
      S/O. DODDAGUNDAPPA VADARAR
      AGE: MAJOR, OCC:NIL,
      R/O: TUMMINAKATTI,
      TQ: RANEBENNUR-581115.
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                                   NC: 2023:KHC-D:13902
                                        RSA No. 330 of 2007




6.    SHIVAKKA SANNAHANUMANTHAPPA AYOJI,
      AGE:40 YEARS, OCC:HOUSEHOLD,
      R/O: TUMMINAKATTI,
      TQ: RANEBENNUR-581115.

7.    SHIVAPPA S/O.YELLAPPA VADARAR
      AGE:58 YEARS, OCC:COOLIE,
      R/O: TUMMINAKATTI,
      TQ: RANEBENNUR-581115.

8.    SANNA-GUDDAPPA
      S/O. YALLAPPA VADARAR
      AGE:54 YEARS, OCC: COOLIE,
      R/O: TUMMINAKATTI,
      TQ: RANEBENNUR-581115.

9.    LAKSHMAN S/O YALLAPPA VADARAR
      AGE:48 YEARS, OCC: COOLIE,
      R/O: TUMMINAKATTI,
      TQ: RANEBENNUR-581115.
                                             ...RESPONDENTS

(BY    SMT. RANJITA RADDI ALAGAWADI, ADVOCATE FOR
       SRI. B.V. SOMAPUR, ADVOCATE, FOR R1, R6 TO R9;
       SRI. R.S. HEGDE, ADVOCATE FOR R3;
       VIDE ORDER DATED 29.03.2010 APPEAL AGAINST R2 AND
       R5 STANDS DISMISSED;
       NOTICE TO R4 IS HELD SUFFICIENT)


     THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE
JUDGEMENT    &    DECREE    DATED   15.9.2006 PASSED  IN
R.A.NO.82/2003 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) &
PRL. JMFC, RANEBENNUR, DISMISSING THE APPEAL AND
CONFIRMING      THE JUDGEMENT AND DECREE DATED: 5.9.2003
PASSED IN OS.NO.204/1995 ON THE FILE OF THE PRL.CIVIL
JUDGE (JR.DN.) & IST ADDL.JMFC, RANEBENNUR.


     THIS REGULAR SECOND APPEAL, COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                                                  RSA No. 330 of 2007




                              JUDGMENT

1. The present Regular Second Appeal by the

plaintiffs assailing the concurrent findings of the Courts

below, whereby, the suit seeking partition and separate

possession was dismissed.

2. This Court while admitting the appeal on

21.06.2012 framed the following substantial question of

law:

"Whether the Courts below were justified in relaying on Ex.D1 which is an unregistered document to grant the relief claimed by the plaintiffs in the suit for partition in view of the said document Ex.D1 being inadmissible in evidence?"

3. The parties herein are referred to as per their

ranking before the trial Court, for the sake of convenience.

4. The suit seeking partition and separate

possession in respect of the suit schedule properties with

mesne profit and costs. The plaint avers that the original

propositus Ramappa died about 17 years ago and his four

sons namely (i) Bharamappa, (ii) Yellappa, (iii) Kenchappa

NC: 2023:KHC-D:13902

& (iv) Dyavappa, who were surviving legal heirs of the

deceased propositus Ramappa. It is the contention of the

plaintiffs that Kenchappa and Dyavappa died issueless and

the said Dyavappa had sold his properties to his elder

brother's son Doddaramappa and given physical possession

of the properties in favour of the Doddaramappa. It is

further averred that Doddaguddappa died in the year 1990

leaving behind defendant Nos.1 to 6 as his legal heirs and

defendant Nos.7 to 9 are children of deceased Yellappa. The

plaintiffs are the children of Sanna Ramappa S/o.

Bharmappa. It is stated that suit schedule properties are

the ancestral properties of plaintiffs and defendants and the

plaintiffs are entitled to 2/3rd share.

5. Pursuant to the suit summons issued by the trial

Court, the defendants appeared and filed their written

statement inter alia contending and denying that the

plaintiffs and defendants are enjoying the possession of the

suit schedule properties. It is averred by the defendants

that a partition was effected in between the plaintiffs and

NC: 2023:KHC-D:13902

defendants in the year 1991 in respect of the suit schedule

properties and accordingly the properties fell to their share

under the partition deed and they are in possession and

enjoyment of their respective shares.

6. In order to substantiate their claim, plaintiff No.6

examined himself as PW1 and a witness as PW2 and got

marked the documents at Exs.P1 to P9. On the other hand

defendant No.8 examined himself as DW1, defendant No.4

as DW2 and a witness as DW3 and got marked the

documents at Exs.D1 to D8.

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

framed the following issues:

(a) Whether the Courts below were right in relying upon Ex.D1, which is inadmissible in evidence?

(b) Whether the findings recorded on issue No.2 by the Courts below not contradictory to the findings recorded on Issue No.1, and as such is it sustainable?

8. The trial Court on the basis of the pleadings, oral

and documentary evidence arrived at a conclusion that the

NC: 2023:KHC-D:13902

defendants have proved that the there was a partition and

held that the partition was effected on 19.07.1991 as per

Ex.D.1 and was within the knowledge of the plaintiffs and

by the judgment and decree held that the plaintiffs are not

entitled to claim share in the suit schedule properties.

9. Feeling aggrieved by the judgment and decree of

the trial Court, appeal was preferred by plaintiffs before the

first appellate Court. The first appellate Court while

re-appreciating the entire oral and documentary evidence

independently arrived at a conclusion that the plaintiffs

have not made out a case for granting partition in respect

of the suit schedule properties and concurred with the

judgment and decree of the trial Court.

10. Against the concurrent findings of facts of the

Courts below, the present second appeal by the plaintiffs.

11. Heard Shri Omkar L.Desai appearing on behalf of

Shri G.K. Hiregoudar, learned counsel for the appellants;

Smt. Ranjita Reddi Alagawadi appearing on behalf of

NC: 2023:KHC-D:13902

Shri B.V. Somapur, learned counsel for the respondent

Nos.1, 6 to 9 on the substantial questions of law framed by

this Court.

12. The sum and substance of the arguments of the

learned counsel appearing for the appellants is that in the

absence of the registration of partition deed at Ex.D1 as

contemplated under Section 17(1)(b) of the Registration

Act, the Courts below were not justified in holding that

there was a partition effected between the plaintiffs and

defendants.

13. Per contra, learned counsel appearing for the

respondents would substantiate her contention that the

Courts below have rightly taken into consideration that an

unregistered partition deed at Ex.D1 is in respect of the

prior partition and the same does not require registration as

contemplated under Section 17(1)(b) of the Registration

Act, 1908 (hereinafter referred to as "the Registration Act"

for short) and would contend that the substantial question

NC: 2023:KHC-D:13902

of law framed by this Court needs to be answered against

the appellants.

14. This Court has carefully considered the rival

contentions of the learned counsel appearing for the

parties, perused the material on record and the original

records.

15. In order to answer the substantial question of

law framed by this Court, the relevant provisions of the

Registration Act needs to be looked into.

16. Section 17(1)(b) of the Registration Act, reads

as under:

"17. Documents of which registration is compulsory.--(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--

XXXXX

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or

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NC: 2023:KHC-D:13902

extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;"

17. Section 49 of the Registration Act declares the

effect of non-registration that no document required under

Section 17 to be registered shall have and effect on the

immovable property comprised there or be received as

evidence of any partition affecting such property, unless it

has been registered. A conjoint pleading of Section

17(1)(b) and section 49 of the Registration Act, establishes

that a non-testamentary instrument which purports or

operates to create, declare, assign, limit or extinguish in

present or future, any right, title or interest, whether

vested or contingent to or in any immovable property of the

value of Rs.100/- and above, shall compulsorily be

registered, otherwise the instrument does not affect any

immovable property compromised therein or shall not be

received as evidence of any transaction affecting such

immovable property.

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NC: 2023:KHC-D:13902

18. Partition and family arrangement are two legal

concepts that are often use interchangeable but there are

some key differences between the two. Partition is a legal

process that divides joint family among co owners. It is

typically used to divide ancestral property, which is a

property that has been passed down through a family for

generations. Partition can be done through Court

proceedings or through a private agreement between the

co-owners.

19. Family arrangement also known as family

settlement, is an agreement between the members of a

family to divide the property or settle other family disputes.

It is more informal and flexible process then partition, and

it does not require Court approval. In the instant case,

Ex.D.1 styled as "Watni Patra" does not speak about

effecting partition by this document nor a right is been

created for the first time by way of this document but a

prior arrangement effected between the plaintiffs and

defendants is incorporated. The Apex Court in the case of

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Kale & others Vs. Deputy Director of Consolidation

Ors1 has held that, a family arrangement is an agreement

between members of the same family, intended to be

generally and reasonably for benefit of the family either by

compromising doubtful or disputed rights or by preserving

the family property or the peace and security of the family

by avoiding litigation or by saving its honour. Family

arrangements are governed by principles which are not

applicable to dealing between the strangers. The Court,

when deciding the rights of partners under family

arrangements, consider what is the broadest view of the

matter, having regard to consideration which, in dealing

with transactions between persons not members of the

same family, would not be taken into account. If the terms

of the family arrangement made under the document as a

mere memorandum, itself does not create or extinguish any

right in immovable property and, therefore, does not fall

within mischief of Section 17(1)(b) of the Registration Act

and is, therefore, not compulsorily registarable. The Apex

1975 SCR (2) 202

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Court in the later decision in the Case of Sardar Sing Vs.

Krishna Devi2 has held that a mere declaration of pre-

existing right, it is not creating a right, title and interest in

praesenti, in which event, it is not compulsorily registarable

instrument. In the instant case, the tenor of the document

Ex.D.1 does not evidence any right created by way of the

said document for the first time and in the said

circumstance, the said document is not compulsorily

registrarable under Section 17(1)(b) of the Registration

Act. Apart from Ex.D.1, the evidence of the parties and the

mutation entry effected, indicate that the properties were

separately and distinctly enjoined by the parties and he

same was incorporated in Ex.D.1.

20. For the reasons stated supra, since the prior

partition has been effected amongst the plaintiffs and

defendants, the said document - Ex.D1 does not require

registration as contemplated under Section 17(1)(b) of the

Registration Act, accordingly the substantial questions of

1994 SCC (4) 18

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law framed by this Court needs to be answered against the

appellants. The manner in which the Courts below have

considered the entire oral and documentary evidence, this

Court is of the considered view that the concurrent findings

of the fact does not warrant any interference by this Court

and there is no perversity or illegality in the finding of facts

by the Courts below. Accordingly, this Court pass the

following: