Karnataka High Court
Subhadra Devi W/O Gangppa Anr vs Chennappa S/O Late Prasanna Ors on 13 February, 2024
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RSA NO.7355 OF 2010
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.7355 OF 2010 (DEC/INJ)
BETWEEN:
1. SUBHADRA DEVI
W/O GANGPPA
SINCE DEAD BY LR'S.
1(a). SMT. RENUKA
W/O ERANNA
AGED ABOUT 45 YEARS.
OCC: HOUSEHOLD,
R/O H.NO.131/A, RAILWAY QUARTERS,
A.S. GUDI, HOSPETE,
BELLARY DISTRICT.
1(b). SMT. SANGEETA
Digitally signed
W/O NARASAPPA
by SACHIN AGED ABOUT 42 YEARS
Location: HIGH
COURT OF R/O H.NO.3-3-16, BERUN KILLA,
KARNATAKA
GANGA NIWAS,
RAICHUR.
2. MAHALINGAMMA
W/O LATE GANGAPPA
SINCE DEADY BY LR'S
2(a). SMT. SAHAKUNTALA
W/O SRINIVAS
AGED ABOUT 52 YEARS
OCC: HOUSEHOLD
R/O AMRUTHHALLI,
BENGALURU.
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2(b). SMT. VIJAYALAXMI
W/O MALLIKARJUN
AGED ABOUT 45 YEARS,
R/O PWD CAMP,
SINDHANUR,
RAICHUR DISTRICT.
...APPELLANTS
(BY SRI. AMEET KUMAR DESHPANDE, SENIOR ADVOCATE FOR
SRI. MALLIKARJUN C. BASAREDDY, ADVOCATE)
AND:
1. CHENNAPPA
S/O LATE PRASANNA
SINCE DECEASED BY HIS LRS
2. NEELAMMA
W/O LATE CHENNAPPA
AGED ABOUT 60 YEARS.
(DIED - LR'S ARE ALREADY ON RECORD AS
RESPONDENTS 3 TO 7)
3. AYYAPPA
S/O LATE CHENNAPPA
AGED ABOUT 42 YEARS
OCC: AGRICULTURE.
4. PRASANNA @ MUDUKAPPA
S/O LATE CHENNAPPA
AGED ABOUT 40 YEARS
OCC: AGRICULTURE.
5. VIRUPAKSHAPPA
S/O LATE CHENNAPPA
AGED ABOUT 37 YEARS
OCC: AGRICULTURE.
6. YENKANNA
S/O LATE CHENNAPPA
AGED ABOUT 35 YEARS.
OCC: AGRICULTURE.
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7. SANGAPPA
S/O LATE CHENNAPPA
AGED ABOUT 30 YEARS.
OCC: AGRICULTURE.
ALL ARE RESIDENTS OF
KALMALA VILLAGE,
RAICHUR TALUK.
...RESPONDENTS
(BY SRI. SHIVAKUMAR KALLOR, ADVOCATE FOR R3;
NOTICE TO R4 TO R7 SERVED, BUT UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CIVIL PROCEDURE CODE AGAINST THE
JUDGEMENT AND DECREE DTD 03RD AUGUST, 2010 PASSED
IN REGULAR APPEAL NO.115 OF 2009 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT-I, RAICHUR,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT
AND DECREE DATED 06TH NOVEMBER, 2009 PASSED IN
ORIGINAL SUIT NO.83 OF 2002 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE (SR.DN.), RAICHUR.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiffs challenging the
judgment and decree dated 03rd August, 2010 passed in
Regular Appeal No.115 of 2009 on the file of the Presiding
Officer, Fast Track Court-I, Raichur (for short, hereinafter
referred to as 'First Appellate Court'), dismissing the
appeal and confirming the judgment and decree dated 06th
November, 2009 passed in Original Suit No.83 of 2002 on
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the file of the Principal Civil Judge (Sr.Dn.), Raichur (for
short, hereinafter referred to as 'Trial Court'), wherein, the
suit filed by the plaintiffs came to be dismissed and the
counter claim filed by the defendant is allowed in-part.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. The plaint averments are that the plaintiffs have
filed suit for declaration and permanent injunction in
respect of the land bearing Survey No.48/ka measuring 20
acre 29 guntas situate at Hunasihal Huda Village, Raichur
Taluk. It is the case of the plaintiffs that, the suit
schedule property is originally belonging to the ancestors
of the plaintiffs and defendants. The original propositor
Parasanna is the owner in possession of the land in
question. After the demise of the said Parasanna, his sons
have entered into family settlement during the year 1974.
Late Parasanna had four sons namely, Parappa, Basanna
(father-in-law of the plaintiffs), Channappa (defendant
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No.1) and Madivalappa. It is further stated that, after the
death of Basanna (father-in-law of the plaintiffs), the
plaintiffs succeeded to the suit schedule property. It is
stated that, Gangappa (son of Basanna and husband of
the plaintiffs) was in Government service and he married
Mahalingamma (plaintiff No.2). Both the wives had two
daughters each through Gangappa. The said Gangappa
divided the property equally between the plaintiffs during
his lifetime, however, revenue records have not been
transferred despite the plaintiffs were in possession of the
suit schedule property. In the meanwhile, Gangappa died
on 09th January, 2000 and thereafter, the plaintiffs sought
for change in mutation in respect of the suit schedule
properties bearing Survey No.48/ka. At that time, the
plaintiffs came to know that the revenue records stands in
the name of Channappa (original defendant) as the said
Channappa misrepresented to the revenue authorities that
he alone was the legal representative of late Basanna and
as such, the plaintiffs filed suit in Original Suit No.83 of
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2002, seeking relief of declaration with consequential
relief.
4. After service of summons, the original defendant
entered appearance and in the meanwhile, he died and as
such, the defendant No.1(d) filed written statement
denying the plaint averments. It is the specific contention
of the defendant No.1(d) that late Channappa (original
defendant) has purchased the suit schedule property as
per registered Sale Deed dated 19th April, 1955.
Accordingly, he sought for dismissal of the suit.
5. On the basis of the rival pleadings, the Trial Court
has formulated issues and additional issues for its
consideration.
6. In order to establish their case, plaintiffs have
examined 2 witnesses as PW1 and PW2 and marked 31
documents as Exhibits P1 to P31. On the other hand,
defendants examined 4 Witnesses as DW1 to DW4 and
marked 11 documents as Exhibits D1 to D11.
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7. The Trial Court, after considering the material on
record, by its judgment and decree dated 06th November,
2009, dismissed the suit of the plaintiffs and allowed the
counter claim of the defendant in-part. Being aggrieved by
the same, plaintiffs have preferred Regular Appeal No.115
of 2009 on the file of First Appellate Court and the said
appeal was resisted by the defendants. The First Appellate
Court, after re-appreciating the facts on record, by its
judgment and decree dated 03rd August, 2010, dismissed
the appeal and confirmed the judgment and decree dated
6th November, 2009 passed by the Trial Court in Original
Suit No.83 of 2002. Being aggrieved by the same, the
appellant/plaintiffs have preferred this Regular Second
Appeal under Section 100 of Civil Procedure Code.
8. This Court, by order dated 26th September, 2012,
formulated the following substantial question of law:
"i. Whether Courts below were correct in arriving
at a conclusion that Ex.P21 partition
deed/family settlement deed is required to be
registered compulsorily as contemplated under
Section 17 of Indian Registration Act, 1908?
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ii. Whether Courts below were justified in coming
to a conclusion that mutation entry relating to
Sy.No.48/C measuring 28 acres 29 guntas as
reflected in Exs.P18 to P20 was not obtained
by Channappa by suppressing the fact that
Gangappa had expired issuless?
iii. Whether Trial Court was justified in granting
the decree on the counter claim to the extent
of 34 acres 4 guntas against the suit claim
whch related to 20 acres 29 guntas in respect
of Sy.No.48/C?
9. Heard Sri. Ameet Kumar Deshpande, learned
Senior Counsel on behalf of Sri. Mallikarjun C. Basareddy,
appearing for the appellant/plaintiffs and Sri. Shivakumar
Kalloor, learned counsel appearing for the respondent
No.3.
10. Sri. Ameet Kumar Deshpande, learned Senior
Counsel appearing for the appellant/plaintiffs, upon
reiterating the facts stated in the plaint refers to the
Exhibit P18-Mutation entries and contended that the
mutation entries have been made behind the back of the
plaintiffs at the instance of fraud committed by the
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defendant No.1 stating that Basanna died without leaving
behind any issues and the said fact has been ignored by
both the Courts below. Learned Senior Counsel also refers
to the Exhibit P21-Partition Deed and argued that, as per
the said partition deed, all the four children of the
Parasanna divided the property. Late Basanna (father-in-
law of the plaintiffs) got two land properties namely, land
bearing Survey No.420 measuring 18 acre 15 guntas of
Kalmala Village, Raichur Taluk and land bearing Survey
No.48 measuring 20 acres at Hunasihal Huda Village,
Raichur Taluk and further he argued that the defendant
got 5 acres in Survey No.48 of Hunasihal Huda Village,
Raichur Taluk apart from, remaining four immovable
properties in different survey numbers. He also submitted
that, Madiwalappa, the fourth son of Parasanna got 5
acres in Survey No.48 of Hunasihal Huda apart from two
immovable properties in different survey numbers.
Learned Senior Counsel further contended that the original
defendant, by misrepresenting to the revenue authorities
got mutated the revenue records in his favour in respect of
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entire Survey No.48 of Hunashihal Huda Village, Raichur
Taluk. By referring to additional issue No.1 relating to the
registered Sale Deed dated 19th April, 1955 (Exhibit D1),
learned Senior Counsel pleaded that the finding recorded
by the Trial Court is contrary to records. He also refers to
the evidence of DW3 and PW2 and argued that the
plaintiffs have proved that the schedule property is the
joint family property of plaintiff and defendants and after
the partition took place between sons of Parasanna as per
Exhibit P21, both the Courts below brush aside the recitals
in the said partition deed (Exhibit P21). Accordingly, he
sought for interference of this Court.
11. To buttress his arguments, Sri. Ameet Kumar
Deshpande, learned Senior Counsel appearing for the
appellant/plaintiffs relied upon the judgments of Hon'ble
Apex Court in the case of SUBRAYA M.N vs. VITTALA
M.N. AND OTHERS reported in AIR 2016 SC 3236;
RAVINDER KAUR GREWAL AND OTHERS vs. MANJIT
KAUR AND OTHERS reported in AIR 2019 SC 3827; and
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RSA NO.7355 OF 2010
VINEETA SHARMA vs. RAKESH SHARMA AND OTHERS
reported in AIR 2020 SC 3717.
12. Per contra, Sri. Shivakumar Kalloor, learned
counsel appearing for the respondent No.3 sought to
justify the impugned judgment and decree passed by the
courts below.
13. In order to understand the relationship between
the parties, the genealogical tree is deduced as follows:
Parasanna (dead)
Basanna Parahanna Channappa Madivalappa
Died Died issueless Defendant (Died) Died
Gangappa Neelamma D1(a)
Died on 9.1.2000 Ayyappa D1(b)
Pradanna D1(c)
Vrupaxa D1(d)
Yellappa D1(e)
Sangappa D1(f)
Subhadradevi Mahalingamma
Plaintiff No.1 Plaintiff No.2
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RSA NO.7355 OF 2010
14. The original propositor Parasanna had four
children namely Basanna (father-in-law of plaintiffs),
Parahanna, Channappa (defendant No.1) and
Madivalappa. It is the case of the plaintiffs that the suit
schedule property is the joint family property of the
father-in-law of the plaintiffs (Basanna) as per the
partition deed produced at Exhibit P21. Perusal of the
averments made in the written statement and the
evidence of the defendants would indicate that there is no
dispute with regard to division of the properties, however,
it is urged that the partition deed is unregistered
document. On the other hand, it is the case of the originl
defendant that he has purchased the suit schedule
property as per registered Sale Deed dated 19th April,
1955 (Exhibit D1). The translated copy of Exhibit D1
would reveal the fact that the original defendant
purchased land bearing Survey No.48 measuring 34 acre 4
guntas for Sale consideration of Rs.6,000/-.
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RSA NO.7355 OF 2010
15. In the backdrop of these aspects, careful
examination of Exhibit P18, wherein, it is stated that the
defendant No.1 made an application to the revenue
authorities stating that his brother-Basanna died leaving
behind no legal representatives and same is extracted
below:
"¥ÉÆÃw «gÁ¸ÀvÀ
¥ÉÆÃw:- §¸ÀtÚ vÀA/¥Àg¸
À t
À Ú
ªÁgÀ¸ÀÄzÁgÀ:- ZÀ£ÀߥÀà vÀA/¥Àg¸
À t
À Ú
SÁvÉ £ÀA. 3 gÀ°è vÉÆÃj¹zÀ ¸À.£ÀA. ¥ÉÆÃwAiÀÄ ºÉ¸j
À £À°è
EgÀÄvÀvÀÛzÉ. ¥ÉÆÃw SÁ¸À vÀªÀÄä£ÁzÀ ZÀ£ÀߥÀà EªÀgÀÄ vÀªÀÄä CtÚ£À
ºÉ¸j
À £À°è EzÀÝ ¨sÀÆ«ÄAiÀÄ£ÀÄß vÀ£Àß ºÉ¸j
À UÉ ªÀUÁðªÀuÉ ªÀiÁqÀ®Ä
w½¹gÀÄvÁÛg.É CzÀg°
À è ¥ÀmÉÖÃzÁgÀ£ÀÄ ºÁUÀÆ ¥ÀmÉÖÃzÁgÀ£À ºÉAqÀw ºÁUÀÆ
ªÀÄUÀ wÃjPÉÆArgÀÄvÁÛgÉ JAzÀÄ w½¹ EzÀPÉÌ vÁ£Éà ªÁgÀ¸z
À ÁgÀ£A
É zÀÄ
w½¹ vÀªÀÄä ºÉ¸j
À UÉ ªÀiÁqÀ®Ä Cfð ¸À°¹
è gÀÄvÁÛg.É PÁgÀt PÁAiÉÄÝ
C£ÀéAiÀÄ 30 ¢£ÀU¼
À À ªÀiÁ»w £ÉÆÃn¸ï eÁj ªÀiÁqÀ¯ÁVzÉ.
Sd/-
¤AiÀÄ«ÄvÀ CªÀ¢A
ü iÀÄ°è AiÀiÁjAzÀ®Æ AiÀiÁªÀ vÀgÀºÀzÀ vÀPg
À ÁgÀÄ
§A¢®è PÁgÀt ªÀUÁðªÀuÉ ªÀiÁqÀ§ºÀÄzÀÄ.
Sd/-"
16. The said entry has been made on 12th February,
2001 pursuant to the application made by the defendant
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No.1 on 08th January, 2001. It is also to be noted from
the evidence of PW2 that, one of the witnesses to the
partition deed produced at Exhibit P21 corroborates the
division of properties, wherein, land bearing Survey No.48
to an extent of 20 acres was allotted to the share of
Basanna (father-in-law of the plaintiffs). It is also to be
noted that DW3 deposed that the plaintiffs are in
cultivation of the land bearing Survey No.48, so also, the
defendant No.1 purchased the schedule property during
the year 1955 with the aid of the joint family income as
the parties were undivided during the said period. The
Trial Court, dismissed the suit of the plaintiffs based on
the finding that the Exhibit P21 is not a registered
document. Undoubtedly, the said document be accepted
for collateral purpose to prove the division of properties.
Plaintiffs have also examined PW2, who signed the
partition deed (Exhibit P21). Therefore, it is to be
concluded that both the Courts below have committed an
error in relying upon the affidavit said to have been filed
by the Basanna in favour of the defendant No.1, while
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availing loan from the Bank. The said document cannot be
construed as an admission by Basanna as the PW2 has
stated that the suit schedule property is the joint family
property of the parties and devolution of properties was
made pursuant to Exhibit P21. Having taken note of these
factual aspects on record, it is relevant to extract
paragraphs 16 and 17 of the judgment rendered by
Hon'ble Apex Court in the case of SUBRAYA M.N. (supra),
which reads as under:
"16. Under Section 17 of the Registration Act, the
documents which purport or operate to create, declare,
assign, limit or extinguish any right, title or interest of
the value of one hundred rupees and upwards, are to
be registered. Under Section 49 of the Registration Act
no document required by Section 17 or by any
provision of the Transfer of Property Act to be
registered shall be received as evidence of any
transaction affecting an immovable property. As
provided by Section 49 of the Registration Act, any
document, which is not registered as required under
the law would be inadmissible in evidence and cannot
therefore be produced and proved under Section 91 of
the Evidence Act.
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17. Even though recitals in the Ex.D22 is to the
effect of relinquishment of right in items No.1 and 2,
Ex.D22 could be taken as family arrangements/
settlements. There is no provision of law requiring
family settlements to be reduced to writing and
registered, though when reduced to writing the
question of registration may arise. Binding family
arrangements dealing with immovable property worth
more than rupees hundred can be made orally and
when so made, no question of registration arises. If,
however, it is reduced to the form of writing with the
purpose that the terms should be evidenced by it, it
required registration and without registration it is
inadmissible; but the said family arrangement can be
used as corroborative piece of evidence for showing or
explaining the conduct of the parties. In the present
case, Ex.D22 panchayat resolution reduced into
writing, though not registered can be used as a piece of
evidence explaining the settlement arrived at and the
conduct of the parties in receiving the money from the
defendant in lieu of relinquishing their interest in items
No.1 and 2."
17. The said aspect was reiterated by the Hon'ble
Apex Court in the case of Vineeta Sharma (supra) at
paragraphs 126 and 127 which reads as under:
"126. The protection of rights of daughters as
coparcener is envisaged in the substituted Section 6 of
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the Act of 1956 recognises the partition brought about
by a decree of a court or effected by a registered
instrument. The partition so effected before 20.12.2004
is saved.
127. A special definition of partition has been
carved out in the explanation. The intendment of the
provisions is not to jeopardise the interest of the
daughter and to take care of sham or frivolous
transaction set up in defence unjustly to deprive the
daughter of her right as coparcener and prevent
nullifying the benefit flowing from the provisions as
substituted. The statutory provisions made in section
6(5) change the entire complexion as to partition.
However, under the law that prevailed earlier, an oral
partition was recognised. In view of change of
provisions of section 6, the intendment of legislature is
clear and such a plea of oral partition is not to be
readily accepted. The provisions of section 6(5) are
required to be interpreted to cast a heavy burden of
proof upon proponent of oral partition before it is
accepted such as separate occupation of portions,
appropriation of the income, and consequent entry in
the revenue records and invariably to be supported by
other contemporaneous public documents admissible in
evidence, may be accepted most reluctantly while
exercising all safeguards. The intendment of Section 6
of the Act is only to accept the genuine partitions that
might have taken place under the prevailing law, and
are not set up as a false defence and only oral ipse
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dixit is to be rejected outrightly. The object of
preventing, setting up of false or frivolous defence to
set at naught the benefit emanating from amended
provisions, has to be given full effect. Otherwise, it
would become very easy to deprive the daughter of her
rights as a coparcener. When such a defence is taken,
the Court has to be very extremely careful in accepting
the same, and only if very cogent, impeccable, and
contemporaneous documentary evidence in shape of
public documents in support are available, such a plea
may be entertained, not otherwise. We reiterate that
the plea of an oral partition or memorandum of
partition, unregistered one can be manufactured at any
point in time, without any contemporaneous public
document needs rejection at all costs. We say so for
exceptionally good cases where partition is proved
conclusively and we caution the courts that the finding
is not to be based on the preponderance of probabilities
in view of provisions of gender justice and the rigor of
very heavy burden of proof which meet intendment of
Explanation to Section 6(5). It has to be remembered
that courts cannot defeat the object of the beneficial
provisions made by the Amendment Act. The exception
is carved out by us as earlier execution of a registered
document for partition was not necessary, and the
Court was rarely approached for the sake of family
prestige. It was approached as a last resort when
parties were not able to settle their family dispute
amicably. We take note of the fact that even before
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1956, partition in other modes than envisaged under
Section 6(5) had taken place."
18. Taking into account the totality of facts on
record, I am of the view that the finding recorded by the
Trial Court that Exhibit P21 cannot be considered for
collateral purpose to prove the contents in the document
cannot be accepted. In that view of the matter, I find
force in the arguments advanced by the learned Senior
Counsel appearing for the appellants that the matter
requires to be remanded to the Trial Court for fresh
disposal, taking into account the law declared by this
Court and Apex Court in respect of accepting the
unregistered document to establish the factum of the
partition between the parties and further action of the
parties to take recourse before the revenue authorities
seeking change of mutation entries. In that view of the
matter, both the Courts below have not appreciated the
material on record in the right perspective and further
both the Court below have erroneously mis-construed the
partition deed (Exhibit P21) and as such, the judgment
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and decree passed by both the Courts below requires to be
interfered with, as the substantial question of law framed
by this Court favours the plaintiffs. Accordingly, I pass the
following:
ORDER
1) Regular Second Appeal is allowed;
2) Judgment and Decree dated 03rd August, 2010
passed in Regular Appeal No.115 of 2009 on
the file of the Presiding Officer, Fast Tract
Court-I, Raichur and judgment and decree
dated 06th November, 2009 passed in Original
Suit No.83 of 2002 on the file of the Principal
Civil Judge (Sr. Dn.), Raichur are hereby set-
aside and matter is remanded to the Trial
Court for fresh consideration with a direction
to pass appropriate orders in accordance with
law, after providing an opportunity of hearing
to both the sides in the light of the
observation made above.
Sd/-
JUDGE
ARK
