Lalitha vs Sheena G. Suvarana
2023 Latest Caselaw 7301 Kant

                               1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 25TH DAY OF OCTOBER, 2023

                           BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                R.S.A. NO.2191/2017 (PAR)
BETWEEN:

1.     LALITHA
       W/O MADHAVA,
       AGED ABOUT 53 YEARS

2.     MADHAVA P.
       S/O GANGAIAH POOJARY,
       AGED ABOUT 61 YEARS

       BOTH ARE RESIDING
       AT "SHABARI"
       KUNTIKANA, BEJAI,
       MANAGLORE TALUK,
       DAKSHINA KANNADA
       DISTRICT-575001.                  ... APPELLANTS

           (BY SRI SHIVARAMA BHAT O., ADVOCATE)
AND:

1.     SHEENA G. SUVARANA
       S/O THANKRU,
       AGED ABOUT 64 YEARS
       R/AT D.NO.2/123,
       MELMANE HOUSE, ALAKE KODI
       MOOD PERAR POST AND VILLAGE
       MANGALORE-575001.

2.     NARAYANA POOJARY
       SINCE DEAD BY HIS LRS
                            2



2(a) SMT.REVATHI
     W/O LATE NARAYANA POOJARY
     AGED ABOUT 70 YEARS
     R/AT ALIKE KODI HOUSE
     MOODPERAR VILLAGE AND POST
     MANGALURU TALUK-574166.

2(b) GANESH SALIAN
     S/O LATE NARAYANA POOJARY
     AGED ABOUT 55 YEARS
     R/AT ALIKE KODI HOUSE
     MOODPERAR VILLAGE AND POST
     MANGALURU TALUK-574166.

2(c) DINESH SALIAN
     S/O LATE NARAYANA POOJARY
     AGED ABOUT 45 YEARS
     R/AT ALIKE KODI HOUSE
     MOODPERAR VILLAGE AND POST
     MANGALURU TALUK-574166.

2(d) SUKESH SALIAN
     S/O LATE NARAYANA POOJARY
     AGED ABOUT 41 YEARS
     R/AT ALIKE KODI HOUSE
     MOODPERAR VILLAGE AND POST
     MANGALURU TALUK-574166.

2(e) MUKESH SAIAN
     S/O LATE NARAYANA POOJARY
     AGED ABOUT 39 YEARS
     R/AT ALIKE KODI HOUSE
     MOODPERAR VILLAGE AND POST
     MANGALURU TALUK-574166.

2(f)   DIVYA SALIAN
       D/O LATE NARAYANA POOJARY
       AGED ABOUT 35 YEARS
       R/AT ALIKE KODI HOUSE
                            3



     MOODPERAR VILLAGE AND POST
     MANGALURU TALUK-574166.

2(g) BHAVYA SALIAN
     AGED ABOUT 33 YEARS
     C/O GOPAL
     R/AT NO.5-7/14
     THOCHILA NEAR LIONS CLUB
     THANDOLIGE
     JEPPINAMOGARU VILLAGE AND POST
     MANGALURU-575007
     DAKSHINA KANNADA, KARKALA.

3.   CHANDRA SHEKHARA SUVARNA
     S/O LEELA,
     AGED ABOUT 54 YEARS

4.   ARUNA D/O LEELA
     AGED ABOUT 45 YEARS

     BOTH ARE RESIDING AT
     NEAR NAGAKANNIKA
     TEMPLE, KAVOOR
     MANGALORE TALUK-575008.

5.   VIMALA D/O THANKARU
     W/O RAMESH ANCHAN
     AGED ABOUT 67 YEARS
     R/AT GENDOTTU HOUSE
     GUDDE ANGADI POST
     VIA MOODBIDRI
     MANGALORE TALUK-574151.

6.   INDIRA D/O THANKARU ,
     W/O LATE CHENNAPPA ANCHAN,
     AGED ABOUT 62 YEARS
     R/AT BORU GUDDE HOSUE,
     KANDAVARA POST,
     MAGNALORE TALUK-574151.
                                 4




7.   SAMPA D. SANIL
     D/O THANKARU
     AGED ABOUT 56 YEARS
     R/AT BONTEMAR NEW HOUE,
     POST PEMANKI, VIA ULAI BETTU,
     MANGALORE TALUK-575003.

     RESPONDENT NO.2(a), 2(c) TO 2(g) AND
     RESPONDENT NO.3 TO 7 ARE REPRESENTED BY
     RESPONDENT NO.2(b) GANESH SALIAN
                                          ... RESPONDENTS

       (BY SRI VASANTH KUMAR, ADVOCATE FOR R1;
      SMT. K.B. JAYALAKSHMI, ADVOCATE R2(a - g) &
                       R3 TO R7)


     THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 06.10.2017
PASSED   IN   R.A.NO.94/2016        ON   THE   FILE   OF    THE   II
ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 05.04.2016 PASSED IN O.S.NO.857/2009
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC
MANGALURU.



     THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT      ON   10.10.2023       THIS   DAY,       THE   COURT
PRONOUNCED THE FOLLOWING:
                                5



                       JUDGMENT

Heard the learned counsel for the appellants and the

counsel appearing for the respondents.

2. This appeal is filed by the defendant Nos.1 and 2

against the judgment and decree passed in RA No.94/2016,

wherein set-aside the judgment and decree of the Trial

Court and granted the relief of partition in favour of the

plaintiff granting 1/7th share in respect to the suit schedule

property and also declaring the GPA dated 05.05.2007,

settlement deed dated 11.05.2007, rectification deed dated

24.01.2009 are not binding on the legal heirs of late

Thankaru Hengsu and granted relief of permanent

injunction and counter-claim made by the defendant No.1 is

rejected.

3. The factual matrix of the case of the plaintiff

before the Trial Court that plaintiff along with his family

members have occupied the plaint schedule premises

bearing Door No.67-2 situated at Sy.No.113/P2 of

Mooduperar village, Mangaluru, which is described as plaint

'A' schedule property. The said property belonged to his

mother Thankaru Hengsu and as a son, the plaintiff is

residing therein along with his family and he is in

possession of the said property. Smt.Thankaru Hengsu and

Guruva Poojary have begotten seven children. The

defendant No.2 is the son-in-law of the late Thankaru

Hengsu and the husband of the defendant No.1. The

defendant No.2 is having no right over the plaint schedule

property, but he is attempting to knock off the property in

the name of his wife.

4. It is contended that Thankaru Hengsu has

purchased various properties as per registered sale deed

dated 14.06.1973 and she was in actual possession and

enjoyment of the same as an absolute owner thereof till her

death on 16.05.2007. She died intestate leaving behind her

seven children. The suit schedule property is a residential

house constructed and occupied by the plaintiff. After the

death of the Thankaru Hengsu, the parties have succeeded

to their plaint 'B' schedule properties on equal rights as co-

owners. Each of the parties are having 1/7th right over the

plaint schedule properties. During the year 2009, the

defendant Nos.1 and 2 forcibly, illegally tried to change the

nature of the plaint 'A' schedule property and also tried to

demolish the house occupied by the plaintiff and when the

counter-claim was made by the defendant asserting the

defendant false right, on thorough enquiry, the plaintiff

came to know that the defendant Nos.1 to 3 have colluded

together and got created some make believes documents

with a malicious view to knock off the plaint 'A' schedule

property. The said Thankaru Hengsu was incapable of

understanding anything while the so called documents

relied upon by the defendant Nos.1 and 2 were unearthed

in respect of the 'A' schedule property. Without the

knowledge of Thankaru Hengsu and even after the death of

Thankaru Hengsu, the defendant Nos.1 to 3 by colluding

with each other got created various documents. The alleged

GPA and settlement deed is created just within 10 days of

death of the Thankaru Hengsu while she was virtually a

vegetative stage. The so called rectification deed is also

created after the death of Thankaru Hengsu, inspite of the

knowledge of her death. None of these documents are

binding on the plaintiff or other legal heirs of Thankaru

Hengsu. The said documents are illegal, void, invalid,

collusive and concocted and are liable to be ignored.

5. The defendant No.1 is not in a exclusive

possession of plaint 'A' schedule property at any time and

1st defendant is only a co-owner like the plaintiff. The

plaintiff is in actual joint possession of the plaint schedule

properties and other sharers as legal heirs. The counter-

claim is bad and illegal. The plaintiff is in settled possession

of the house described in the schedule of the plaint.

6. In pursuance of suit summons, the husband and

wife of defendant Nos.1 and 2 have filed written statement

denying the averments made by the plaintiff. The plaint

schedule property along with other vast extent of properties

measuring about 7 acres originally acquired by the

Thankaru Hengsu as per the sale deed dated 14.06.1973.

The husband of Thankaru Hengsu namely Guruva Poojary

expired on 03.05.1964. After the death of Guruva Poojary,

the eldest son of the said Thankaru Hengsu namely

Mr.Narayana Poojary/defendant No.3 took the responsibility

of the entire family including the brothers and the sisters.

Being the eldest member of the family, the defendant No.3

provided education to al his sisters including his brother and

he had arranged the marriage of all the siblings by

spending his hard earned money. The plaintiff failed in

SSLC and ran away to Mumbai even without informing his

family members in the year 1968 and also he went to

abroad and came down to India as he could not pull on

therein on account of his arrogant and callous attitude.

From 1989 till around 1995 he had became virtually a

nuisance and head ache to the entire family as he did not

take the responsibility of himself, his wife and his kids. The

defendant No.3 some how managed the entire family taking

all responsibility on his shoulder.

7. It is also the case of the defendant Nos.1 and 2

that defendant No.3 has educated the children of Leela and

the plaintiff. The defendant No.3, who was director of

K.M.F, Kulshekar was also running a diary farm, all his

income were spent for the family. When he fell short of

funds, he approached to avail loan from S.C.D.C.C bank in

the name of himself and his mother Thankaru Hengsu, but

the bank refused to give the loan in his name or in the

name of his mother on account of their advanced age.

Therefore, on the suggestion given by the said bank, the

defendant No.3 in the name of his son Ganesh Poojary in

the year 2000 to the tune of Rs.2,00,000/- on the charge of

the plaint schedule property and the adjacent property.

Though the loan was availed could not repay the amount

which resulted in issuance of auction notice for sale of the

mortgaged property which includes the plaint schedule

property. In order to avoid the auction, sought the help of

defendant Nos.1 and 2 and accordingly they have

approached the bank and after mutual discussion, it was

agreed for one time settlement by paying sum of

Rs.3,57,500/- and accordingly an agreement for sale was

entered by the 3rd defendant as the GPA holder of his

mother Smt. Thankaru Hengsu. The 2nd defendant herein on

26.03.2007 agreed to sell 70.25 cents of land with the old

building situated therein, which has been witnessed by te

plaintiff himself. Accordingly, the defendant Nos.1 and 2

have paid a sum of Rs.3,57,500/- to the bank in the name

of the borrower. After discharge of the loan, in terms of the

aforesaid agreement for sale and also taking into

consideration of these aspects, the plaintiff and defendant

No.3 and also their mother Thankaru Hengsu decided to

make over 66.25 cents of land in Sy.No.113(P) out of 70.25

cents, with the old building situated therein to the

defendant Nos.1 and 2 so as to compensate them for

settling the said loan dues. The 4 cents of land in the said

survey number was left out as approach road to their other

properties. Since the said property was denoted as non-

agricultural property, there was some legal technically to

acquire the same in the name of defendant Nos.1 and 2.

Therefore, the defendants by spending more than

Rs.25,000/- to obtain conversion order on 26.04.2007.

There is an exemption from payment of stamp duty under

the Karnataka Stamp Act, if the property is conveyed by the

parents to their children by way of gift or settlement.

Therefore, to get the said benefit of exemption of stamp

duty, instead of the 2nd defendant getting the sale deed

executed and registered in his name from said Thankaru

Hengs, he arranged for the execution of the settlement

deed by said Thankaru Hengsu in the name of his wife, the

defendant No.1. Accordingly, Smt. Thankaru Hengsu

through her son and GPA holder Narayana Poojary executed

settlement deed conveying the schedule property in favour

of the 1st defendant on 11.05.2007.

8. In pursuance of the settlement, the R.T.C of the

plaint schedule property was mutated in the name of the 1st

defendant. Due to inadvertence, the existence of the

building situated in the plaint schedule property could not

be mentioned in the settlement deed. But the same was

included by executing the rectification deed on 24.01.2009

and hence made the counter-claim in respect of the item

No.1 of the suit schedule property.

9. The Trial Court having considered the material

available on record has framed the issues whether the

plaintiff is entitled for 1/7th share and for permanent

injunction and whether the documents of settlement deed

and rectification deed are null and void, whether the

defendant No.1 proves that she is the absolute owner in

respect of the written statement schedule property through

settlement deed dated 11.05.2007 and the plaintiff has no

right over the written statement and whether the plaintiff is

bound to hand over the possession of written statement

schedule property and the defendant No.1 is entitled for

injunction.

10. The plaintiff in order to prove his case examined

himself as PW1 and also examined the witness as PW2 and

got marked the 35 documents as Exs.P1 to Ex.P35. The

defendants have examined two witnesses as DW1 and DW2

and got marked documents at Exs.D1 to Ex.D20. The Trial

Court having considered both oral and documentary

evidence placed on record has dismissed the suit and

allowed the counter-claim of defendant Nos.1 and 2 and

directed to plaintiff to surrender the vacant possession of

the written statement schedule property including the

premises and also granted prohibitory injunction.

11. Being aggrieved by the said judgment and

decree, the plaintiff has filed RA No.94/2016 and also

considered the grounds urged in the appeal, formulated the

points as whether the plaintiffs have entitled for 1/7th share

and injunction and almost similar to the issues, the point

for consideration have formulated.

12. Having peruse the both oral and documentary

evidence available on record and on re-appreciation the

First Appellate Court reversed the finding of the Trial Court

by setting aside the judgment and decree and granted 1/7th

share and declared GPA, settlement deed and rectification

deed as null and void and granted permanent injunction in

favour of the plaintiff and consequently the counter-claim

was rejected. Hence, the present second appeal is filed.

13. The main contention of the counsel appearing for

the appellant in this appeal that the First Appellate Court

has committed an error in reversing the finding of the Trial

Court. The main contention that the appellate Court has not

applied the correct principles of law and ignored the

material evidence available on record and totally adopted a

wrong approach and not formulated the proper points. The

First Appellate Court fails to consider the fact that the

plaintiff has filed suit for bare injunction in respect of 'A'

schedule property initially and after filing the written

statement and counter-claim by defendant Nos.1 and 2 an

application came to be filed by the plaintiff for amendment

of the plaint in the year 2012 and thereby wanted to add 'B'

schedule property and sought for partition and separate

possession in respect of both 'A' and 'B' schedule property

which is afterthought. The plaintiff being a party to Ex.D4,

Ex.D5 and Ex.D6, intentionally suppressed the fact of

execution of agreement.

14. The counsel would vehemently contend that

availment of loan of Rs.2,00,000/- is not disputed and

repayment of Rs.3,57,500/- is also not in dispute and also

for the repayment the defendant No.2 help the family.

Hence, executed an agreement in terms of Ex.D4 and

thereafter, after clearing the amount, settlement deed was

executed and the plaintiff being party to the agreement as

well as the settlement deed he cannot dispute the same.

15. This Court having considered the material on

record and also grounds urged in the second appeal,

framed the substantial questions of law as follows:

1) Whether the lower appellate Court is justified in reversing the judgment and decree of the Trial Court when the defendant No.3 is said to have admitted the execution of Exs.D4, Ex.D5 and Ex.D6 and pleaded that that partition could be granted only in respect of schedule-B properties.

16. The counsel for appellant in his oral submission

re-iterated the grounds urged in the appeal memo and only

issue involves between the parties with regard to the

documents at Ex.D4, Ex.D5 and Ex.D6 and there is an

admission of PW1 with regard to the loan and the execution

of the settlement deed.

17. The counsel in support of his argument he relied

upon the judgment reported in AIR 1999 SC 2203 in case

of Brij Raj Singh (Dead) by L.Rs. and others V/s

Sewak Ram and another wherein the Apex Court held

that deed in question is a registered deed, no specific

objection raised as to its execution/attestation, one of two

attesting witness examined to prove deed- sufficient to

prove gift- nothing more is required to satisfy the

requirements of Section 123, allowing the defendants to

raise the plea of non-compliance of Section 123 of Transfer

of Property Act and in holding that the gift deed was not

proved is improper.

18. The counsel also relied upon the judgment of

Apex Court reported in (1999) 6 SC 104 in case of

K.S.Satyanarayana V/s V.R.Narayana Rao and the

counsel relying upon this would vehemently contend that

the plaintiff not only denied his signature in documents at

Ex.D4 and Ex.D5 but also even denied the Vakalath and the

counsel referring this judgment would vehemently contend

that in the case on hand also when he has denied his own

Vakalath even denied the photo of his son. The Apex Court

held the comparison of signature, where the defendant

denied signature on various exhibited documents and also

on Vakalathnama and written statement, held, Trial Court

could have compared the signatures under Section 73 and

also made an observation that it is nothing but undue

enrichment and taken note of Section 70 and Section 72 of

the Contract Act.

19. The counsel also relied upon the judgment of

reported in ILR 2012 KAR 2027 in case of Sri.Siddaraju

and others V/s Sri.Gangadhara and another wherein

held that once the settlement deed is made in favour of the

plaintiff, entire extent of 48 guntas, the land which is

retained by the settler to the extent of 10 guntas as a life

interest is only a limited estate and not the absolute right

and subsequently, any such settlement made in favour of

the 1st defendant to the extent of 10 guntas out of 48

guntas in void and once there is conveyance way of

settlement deed in favour of the plaintiff, the right if any,

retained by the settlor is only life interest and not absolute

right.

20. Per Contra, the counsel appearing for the

respondent in his argument he vehemently contend that the

DW1 and DW2 evidence is with regard to loan was

borrowed and no pleading regarding loan in pleading while

making the counter-claim and only evidence has been led

in.

21. The First Appellate Court relied on the evidence

available on record and rightly allowed the appeal and

granted the relief and it does not requires any interference

and in detail discussed the evidence available on record and

rightly comes to the conclusion that the plaintiff is entitled

for a decree. The counsel would vehemently contend that

the Trial Court taking into note of material on record, fails

to consider the contentions raised by the plaintiff but, the

First Appellate Court rightly reversed the finding of the Trial

Court having considered the material by giving anxious

consideration to the material available on record.

22. The counsel in support of his argument he relied

upon the judgment CDJ 2011 Kerala High Court 434 and

contend that an attesting witness to the agreement for sale

is not a person who would be affected by the decree, an

attesting witness need not know the contents of the

document by reason of mere attestation of document, it is

not possible to attribute to an attestor and knowledge of

the contents of the documents.

23. The counsel also relied upon the judgment CDJ

2007 MADRAS High Court 3388 it was necessary for the

propounder of the Will to prove that Will has been executed

by the testator after understanding the contents thereof

likewise, merely because the plaintiff is an attestor to the

document, it cannot be contend that he had the knowledge.

The DW1 and DW2 admits do not know who wrote the

document and hence, the appellate Court rightly comes to

the conclusion that the same has not been proved.

24. Having heard the appellants' counsel and also

counsel appearing for the respondent, there is no dispute

with regard to the relationship between the parties. It is

also not in dispute that the property was purchased by

Thankaru Hengsu in the year 1973. It is also important to

note that the father of the parties died in the year 1964

itself. But, the properties are purchased subsequent to the

death of the father in the year 1973. It is also evident from

the records that the defendant No.3 had taken the

responsibility of the family after the death of the father. It

is also the claim of the parties that he had only provided

education to the family members including brothers and

sisters. The PW1 has also admits that father died on

03.05.1964 and also categorically admits that his mother

was an illiterate. But, categorically admits that in the year

1974 3rd defendant had purchased the property in the name

of the mother. When the suggestion was made that the 3rd

defendant admitted her to high school, but he claims

mother gave the money, but not denies the fact that he

was admitted to school by 3rd defendant and also admits

that he failed in the SSLC in the year 1969 and also admits

that when he failed in SSLC he went to Mumbai. He admits

that for having sent money to mother and 3rd defendant he

is not having any document. He also admits that after

selling 40 cents of land except the land is preserved for the

road remaining 66.25 cents was converted. He admits that

the bank advanced the loan for agricultural work but denies

the execution of general power of attorney by the mother in

favour the 3rd defendant and also he admits that the 3rd

defendant's son Ganesh was residing along with them when

he was aged about 25 years in the year 2000. When the

suggestion was made that loan was availed in his name, but

the same was denied. He did not repay the amount to the

S.C.D.C.C bank on behalf of his mother. When the

suggestion was made that the bank has issued the auction

notice, but he denies that he is not aware of the same, but

admits that 3rd defendant is respectable person in the

village and also admits that 1st defendant's husband is well

of and the 1st defendant is also working as nurse in Wenlok

hospital. When the suggestion was made that they were

due for an amount of Rs.5,00,000/- to the bank and the

same also denies that he is not aware of the same and also

admits that if one time settlement bank will give

concession. When the suggestion was made that one time

settlement bank offered Rs.3,57,000/- and the same also

denies that he is not aware of the same. A suggestion was

made that requested the 2nd defendant to clear the loan

and offered 'A' schedule property and the same was denied.

He also denies even signature to Ex.D4 and also he admits

that he has not proved that signature available in the Ex.D4

is not belongs to him and also he has not denied the

signature in his chief affidavit and also not even denied the

settlement deed. Further admits that whenever he use to

make signature, he use to know the contents of the

document and thereafter he use to sign the same and not

having the habit of making the signature without knowing

the contents. It is also important to note that a suggestion

was made that the defendant No.2 had made the payment

of Rs.3,57,000/- to the bank, but claims that only Ganesha

had signed the same and when the question was put to him

that whether they are going to examine the Ganesha, but

he gave the reply that he is busy and admits that there is a

good relationship between him and the said Ganesha.

25. The plaintiff has also examined the PW2 who is

wife of the said Ganesha and she comes and deposes that

the loan was taken for her husband business, but denies

that the loan was taken for the family. On the other hand

the defendant No.2 was examined and also one of the

defendant has been examined as DW1 and DW2. The DW1

is the none other the 2nd defendant, she claims that he

made the payment in favour of the bank. The DW2/3rd

defendant who executed settlement deed who executed

power of attorney in favour of the 1st defendant and he re-

iterates that loan was availed and the loan was repaid by

the defendant No.2 and hence settlement deed was

executed and admits that the plaintiff is residing in the suit

schedule property and loan was obtained in his sons name

since he himself and mother was aged and Ex.D5

settlement deed was prepared in the advocate office of

Sundara Parakpadi and he has signed in the Sub registrar

office.

26. Having reassessed both oral and documentary

evidence available on record it is clear that an agreement

was executed in terms of Ex.D4 and also settlement deed

was executed in terms of the Ex.D5. Though the plaintiff

denied his signature available in the Ex.D4 and Ex.D5 and

both the Courts have accepted that the plaintiff had signed

the document at Ex.D4 and Ex.D5, even the plaintiff had

gone to the extent of denying the signature available in

Ex.D4 and Ex.D.5 and not only that even denied his

Vakalath and and rightly the appellants' counsel relied upon

the judgment of the Apex Court in case of K.S.

Satyanarayana Vs V.R.Narayana Rao and in the said

case also the defendant has denied the signature on various

documents and also on Vakalathnama and the Court has

taken note of the conduct of the defendant regarding undue

enrichment. I have already pointed out both Trial Court and

also the First Appellate Court comes to the conclusion that

document at Ex.D4 and Ex.D5 are the signature of the

plaintiff, even the First Appellate Court also comes to the

conclusion that Ex.D4 has signed as one of the attesting

witness to the said document. But, observed that none

other legal heirs of the Tenkaru Hengsu have signed to the

Ex.D4 and also comes to the conclusion in paragraph No.33

of the First Appellate Court that even though the plaintiff

denies the signature on Ex.D4 and Ex.D5 with his admitted

available signature, the said signatures on Ex.D4 and Ex.D5

or that of the plaintiff only. When the plaintiff also admits

that there was a loan and an amount of Rs.3,57,000/- paid

to the bank, but only claims that the son of the 3rd

defendant made the payment, but it is the case of the

defendant Nos.1 and 2 that the defendant No.2 made the

payment but, the document is obtained in the name of his

wife i.e, defendant No.1 in order to avoid the stamp duty.

27. It is important to note that the plaintiff is not an

illiterate and also he has worked in Mumbai and also in

abroad, he came back and also categorically admitted that

the 3rd defendant is a respected person in the village and he

had executed the settlement deed and also the agreement

in terms of Ex.D4 and Ex.D5 and the defendant No.3 has

also not disputed the execution of settlement deed in terms

of Ex.D5 and also an agreement in terms of Ex.D4. No

doubt rectification deed was executed subsequently even

after the death of the mother and though no power to

execute the rectification deed for the fact is that Ex.D4 and

Ex.D5 executed by defendant No.3 who was the kartha of

the family who was the elder member of the family and

materials also discloses that after the death of the father in

the year 1964 he had taken care of the family and PW1 has

also categorically admitted while purchasing the property in

the year 1973, 3rd defendant only purchased the property in

the name of mother and when he had executed settlement

deed that to when the defendant No.2 came forward to help

the family in order to avoid the auction in view of the notice

issued by the bank, he made the payment and an

agreement was executed in his favour in terms of Ex.D4

and thereafter settlement deed was executed in terms of

the Ex.D5 and contents of Ex.D4 and Ex.D5 is very clear

with regard to the availment of loan and non payment of

loan in favour of the bank and issuance of the notice for

auction and also payment was made by defendant No.2 and

when all such materials were available before the Court and

also pleading is very clear except the item No.1, the

property which was executed in favour of the defendant

No.1 for the help extended by them when the property was

settled and the PW1 also categorically admits all other

contentions raised by the defendants in the written

statement during cross-examination except denying of

document Ex.D4 and Ex.D5 but, once both the Courts

comes to the conclusion that signature available in Ex.D4

and Ex.D5, these are the signature of the plaintiff and he

has also not pleaded anything about the signature was

obtained by fraud or misrepresentation and also he

categorically admitted that in his chief evidence he has not

denied the signature available in the Ex.D4 and Ex.D5, the

Trial Court rightly evaluated the evidence available on

record that he had the knowledge of the execution of

document at Ex.D4 and Ex.D5 and taken note of the

conduct of the plaintiff while appreciating his evidence in

coming to the conclusion that he had the knowledge of

Ex.D4 and also signed the same as attestor and Supreme

Court judgment relied upon by the appellants' counsel is

aptly applicable to the case on hand since in the said case

also the defendant had denied the signature available in the

plaint. But, in the case on hand also the plaintiff denied the

Vakalath as well as other documents, it is nothing but an

undue enrichment in getting the share in the property of 'A'

schedule. The Trial Court has taken note of the said

material while appreciating the evidence. The admission of

PW1 is also clear that he never make any signature without

knowing the contents of the documents and no explanation

why he had signed Ex.D4 and Ex.D5.

28. The First Appellate Court has re-appreciated the

material available on record and even comes to the

conclusion that the signature of the plaintiff is found in

Ex.D4 and Ex.D5 and the same belongs to the plaintiff and

even comes to the conclusion extracting the evidence of

PW1 in paragraph No.19 on 14.06.1973, the suit schedule

properties are purchased and the same is purchased in the

name of the mother but he denied the signature in Ex.D4

but categorically admitted that in the plaint and in his chief

evidence he has not denied the signature and also not

signing any document without knowing the contents of the

document and only after understanding the same only he

use to make signature and also categorically admitted that

an amount of Rs.3,57,500/- was paid to the bank, but only

contend that Ganesh had paid the same and the wife of said

Ganesh has been examined as PW2 but she categorically

says that her husband did not come to give evidence before

the Court. The Court also made an observation that the

conduct of the plaintiff towards his family is not proper and

good but comes to the conclusion that he does not

disentitle from the property, but here it is not the question

of disentitlement of the property. The Ex.D4 and Ex.D5

though not admitted, both the Courts come to the

conclusion that the signature found in Ex.D4 and Ex.D5

belongs to the plaintiff and rightly pointed out by the

counsel for the appellant that even the Court can compare

the signature under Section 73 and on comparison of the

signature of the plaintiff, signature found in Ex.D4 and

Ex.D5 is also belongs to the plaintiff only. The fact that loan

was obtained and the same was repaid is not in dispute and

Ex.D4 and Ex.D5 also reveals the same in the document

itself and the PW1 also categorically admitted that even

said Ganesha was also residing along with them and he

categorically admits that the loan was also availed in the

year 1999-2000 and the amount of Rs.3,57,500/- was paid

in 2007 after the one time settlement negotiation.

29. Though the counsel appearing for the respondent

contend that the loan is obtained only Rs.2,00,000/- but,

the material is very clear that the loan is obtained in the

year 1999-2000 and repayment was made in 2007. hence,

the loan amount was accumulated to Rs.5,00,000/- and the

same was reduced to Rs.3,57,500/- in one time settlement

and when the plaintiff also admits for having made the

payment of Rs.3,57,500/- to the bank.

30. The First Appellate Court having re-considered

the material on record, comes to the conclusion that whole

suit devolves on Ex.D4 to Ex.D7 which are the prima facie

documents and when there was an agreement dated

26.03.2007 and the same had been signed by the plaintiff

and also settlement deed was executed by defendant No.3

in favour of defendant No.1 after clearing the bank dues.

The First Appellate Court committed an error in coming to

the conclusion that power of attorney executed in favour of

the defendant No.3 has not been produced and the very

approach is erroneous, since he himself is a attesting

witness to the document of both Ex.D4 and Ex.D5. Even in

the absence of the power of attorney when the plaintiff

himself has signed both the documents at Ex.D4 and Ex.D5,

the First Appellate Court ought not to have made such an

observation, but erroneously comes to the conclusion that

defendants have not assigned any reasons as to what made

them to enter into agreement with defendant No.2 and to

execute the settlement deed in the name of the defendant

No.1. But, fails to take note of the fact that the defendant

No.2 who is the husband of defendant No.1 had made the

payment to clear the loan amount. Though an agreement

was executed in favour of defendant No.2 and the reason is

also assigned that in order to avoid the stamp duty, since

the defendant No.1 is belongs to the very same family

executed the document and this fact has not been taken

note of and proceeded in an erroneous approach. The fact

that defendant No.2 is well off and the same is also not

disputed in the evidence but admitted.

31. The First Appellate Court taken note of the fact

that in Ex.D4 even the plaintiff has signed as one of the

attesting witness to the said document, but comes to the

conclusion that none other legal heirs of the Tankaru

Hengasu have signed to the Ex.D4. But, the very fact that

Ex.D3 is also the legal heir of Tankaru Hengsu was not

taken note of by the Appellate Court and also it is emerged

that he only taken care of entire family after the death of

the father since mother was illiterate and property is also

purchased by defendant No.3 in the name of the mother.

The very approach of the First Appellate Court is erroneous

and ought not to have reversed the finding and the Court

has to take note of the material available on record in toto

and mainly relied upon the document of rectification deed

dated 24.01.2009 may be said document was executed

subsequent to the death of the Tankaru Hengsu when there

is an admitted document of Ex.D4 and Ex.D5 are prior to

the said document and none of the legal heirs of Tankaru

Hengsu disputed the document except the plaintiff and

inspite of it committed an error. Hence the judgment and

decree of the First Appellate Court requires to be set-aside

in respect of the item No.1 of the property to the extent of

66.25 cents with building in view of the settlement deed

and rectification deed executed in favour of the defendant

No.1 and hence judgment and decree in respect of

residential house bearing 67/2 situated at Sy.No.113/P2 of

Moduperara village measuring 66.25 acre with electricity

connection under RRGMT 472 of paikamba MESCOM cannot

be partible in view of the document at Ex.D5 to Ex.D7 were

executed in favour of the defendant No.1 and 2 and hence,

the judgment and decree of the Trial Court in respect of 'A'

schedule property is concerned has to be restored and in

respect of other property is concerned, no dispute with

regard to the granting of the share in favour of the plaintiff

and the same cannot be modified. Hence, I answer the

substantial questions of law framed by this Court as

affirmative in view of the document at Ex.D4 to Ex.D6 have

been executed.

32. In view of the discussions made above, I pass

the following:

ORDER

i. The appeal is allowed in part.

ii. The judgment and decree of the First Appellate

Court is set-aside in respect of the 'A' schedule

property and the very finding of the First

Appellate Court that GPA, settlement deed and

the rectification deed are invalid is hereby set-

aside and the conclusion that the same is not

binding on the legal heirs of late tankar hengasu

is also set-aside.

iii. Consequently, the judgment and decree of the

Trial Court is restored in respect of counter-claim

of defendant Nos.1 and 2 and directed the

plaintiff to surrender the vacant possession of

the written statement's schedule property

including the premises bearing door

No.2.67.2(2.123) in favour of the defendant

Nos.1 and 2 within 45 days from the date of this

order failing which the defendant Nos.1 and 2 is

entitled to take the possession in accordance

with law.

iv. The registry is directed to send the records to

the respective Courts forthwith.

Sd/-

JUDGE

RHS