Karnataka High Court
Nagesh Chidambara Joshi (Bhat) vs Srinivas Chidambara Joshi (Bhat) on 18 January, 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18th DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
R.S.A. No.5038 OF 2011 (PAR)
C/W
R.S.A. No.5039 OF 2011 (PAR),
R.S.A. No.5020 OF 2011 (PAR),
R.S.A. No. 5021 OF 2011 (PAR)
IN R.S.A. No.5038/2011
BETWEEN
1. SHRINIVAS CHIDAMBAR JOSHI (BHAT),
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O DOMBEKERI, SUAGAVI,
TQ. SIRSI, DIST. U.K.
SINCE DEAD BY HIS LRs
1(A) SARASWATI
W/O SHRINIVAS JOSHI
AGE 43 YEARS
OCC: AGRICULTURIST
1(B) VISHAL
S/O SHRINIVAS JOSHI
AGE: 18 YEARS
OCC:STUDENT
1(C) CHINMAY
S/O SHRINIVAS JOSHI
AGE 15 YEARS
OCC:STUDENT, MINOR
REP BY HIS MOTHER GUARDIAN SARASWATI
W/O SHRINIVAS JOSHI
2
ALL ARE R/O DOMBEKERI, SUGAVI,
TQ. SIRSI, DIST. U.K.
...APPELLANTS
(BY SRI A P HEGDE, ADVOCATE)
AND
1 . NAGESH CHIDAMBAR JOSHI (BHAT),
AGE: 51 YEARS,
OCC: AGRICULTURE,
R/O DOMBEKERI, SUAGAVI,
TQ. SIRSI, DIST. U.K. PIN 560403
2 . VINODA S. HEGDE
W/O V. SUBRAY KAMALAKAR HEGDE,
AGE: 57 YEARS,
OCC: HOUSEHOLD,
R/O BANDIMANE CHAWL,
INFRONG OF TSS RICE MILL,
SIRSI, DIST. U.K. PIN 560401
3 . SINDHU ISHWAR BHAT,
AGE: 55 YEARS,
OCC: HOUSEHOLD,
R/O AJJINADAKA, PUNACHA VILLAGE,
TQ. BANTWAL DIST. U.K. PIN 530228
4 SHARADA
W/O CHIDAMBAR JOSHI
AGE: 72YEARS
OCC: HOUSEHOLD
RO DOMBEKERI, SUGAVI
TQ. SIRSI, DIST. U.K.
....RESPONDENTS
(BY SRI S S YADRAMI, SENIOR COUNSEL FOR
SRI GIRISH V BHAT, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT
DTD:25.09.2010 PASSED IN R.A. NO.84/2008 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT SIRSI, PARTLY ALLOWING
THE APPEAL FILED AGAINST THE JUDGMENT DTD:20.08.2008 AND THE
DECREE PASSED IN OS NO.78/2004 ON THE FILE OF THE CIIVL JUDGE
3
(SR.DN), SIRSI, DISMISSING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
IN R.S.A. NO.5039/2011
BETWEEN
1. SHRINIVAS CHIDAMBAR JOSHI (BHAT),
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O DOMBEKERI, SUAGAVI,
TQ. SIRSI, DIST. U.K.
SINCE DEAD BY HIS LRs
1(A) SARASWATI
W/O SHRINIVAS JOSHI
AGE 43 YEARS, OCC: AGRICULTURIST
1(B) VISHAL
S/O SHRINIVAS JOSHI
AGE: 18 YEARS, OCC:STUDENT
1(C) CHINMAY
S/O SHRINIVAS JOSHI
AGE 15 YEARS
OCC:STUDENT, MINOR
REP BY HIS MOTHER GUARDIAN SARASWATI
W/O SHRINIVAS JOSHI
ALL ARE R/O DOMBEKERI, SUGAVI,
TQ. SIRSI, DIST. U.K.
...APPELLANTS
(BY SRI A P HEGDE JANMANE, ADVOCATE)
AND
1 . NAGESH CHIDAMBAR JOSHI (BHAT),
AGE: 51 YEARS,
OCC: AGRICULTURE,
R/O DOMBEKERI, SUAGAVI,
TQ. SIRIS, DIST. U.K. 560403
2. SHARADA
4
W/O CHIDAMBAR JOSHI
AGE: 72YEARS
OCC: HOUSEHOLD
RO DOMBEKERI, SUGAVI
TQ. SIRSI, DIST. U.K.
...RESPONDENTS
(BY SRI S S YADRAMI, SENIOR COUNSEL FOR
SRI GIRISH V BHAT, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT
& DECREE DTD:25.09.2010 PASSED IN R.A.N0.85/2008 ON THE FILE
OF THE PRESIDING OFFICER, FAST TRACK COURT SIRSI, ALLOWING
THE APPEAL FILED AGAINST THE JUDGMENT DTD:20.08.2008 AND THE
DECREE PASSED IN OS NO.123/2007 ON THE FILE OF THE CIVIL JUDGE
(JR.DN.), SIRSI, DECREEING THE SUIT FILED FOR PERMANENT
INJUNCTION.
IN R.S.A. NO.5020/2011
BETWEEN
1 . NAGESH CHIDAMBARA JOSHI (BHAT),
AGE: 51 YEARS, OCC:
R/O SUGAVI, TQ. SIRSI 583001
...APPELLANT
(BY SRI S S YADRAMI, SENIOR COUNSEL FOR
SRI G V BHAT, ADVOCATE )
AND
1. SRINIVAS CHIDAMBARA JOSHI (BHAT),
AGE: 47 YEARS,
R/O SUGAVI, TQ. SIRSI 583001
1(A) SARASWATI
W/O SHRINIVAS JOSHI
AGE 43 YEARS, OCC: AGRICULTURIST
1(B) VISHAL
S/O SHRINIVAS JOSHI
AGE: 18 YEARS, OCC:STUDENT
1(C) CHINMAY
S/O SHRINIVAS JOSHI
5
AGE 14 YEARS
OCC:STUDENT, MINOR
REP BY HIS MOTHER GUARDIAN SARASWATI
W/O SHRINIVAS JOSHI
ALL ARE R/O DOMBEKERI, SUGAVI,
TQ. SIRSI, DIST. U.K.
2. SMT. VINODA S. HEGDE
W/O LATE SUBRAYA
KAMALAKAR HEGADE,
AGE: 58 YEARS, OCC: HOUSEWIFE,
R/O BANDIMANE CHAWL,
NEAR TSS RICE MILL, SIRSI 583001
3. SMT. SINDHU ISHWAR BHAT
W/O LATE ISHWAR BHAT
AGE: 55 YEARS, OCC: HOUSEWIFE,
R/O SJJINSFSKS, PANACHA VILLAGE and POST,
BANTWAL TALUK, D.K. 583001
...RESPONDENTS
(BY SRI A P HEGDE, ADVOCATE FOR R1
SMT NIRMALA B G, ADVOCATE FOR R2 & R3)
THIS RSA IS FILED U/S. 100 CPC., AGAINST THE JUDGEMENT &
DECREE DTD:25-09-2010 PASSED IN R.A.NO.86/2008 ON THE FILE OF
THE PRESIDING OFFICER, FAST TRACK COURT, SIRSI, DISMISSING
THE APPEAL, FILED AGAINST THE JUDGMENT DTD:20-08-2008 AND
THE DECREE PASSED IN O.S.NO.78/2004 ON THE FILE OF THE CIVIL
JUDGE(SR.DN) SIRSI, DISMISSING THE SUIT FILED FOR PARTITION
AND SEPARATE POSSESSION.
IN R.S.A. No.5021/2011
BETWEEN
1 . SMT. VINODA S HEGADE
W/O LATE SUBRAY KAMALAKAR HEGADE,
AGE: 58 YEARS,
OCC: HOUSE WIFE,
R/O BANDIMANE CHAWL,
NEAR TSS RICE MILL, SIRSI TALUK 531203
2. SMT. SINDHU ISHWAR BHAT
6
W/O LATE ISHWAR BHAT,
AGE: 55 YEARS,
OCC: HOUSE WIFE,
R/O AJJINADKA, PUNACHA VILLAGE AND
POST BANTWAL TQ., DK 572010
...APPELLANTS
(BY SMT NIRMALA B G, ADVOCATE)
AND
1. NAGESH CHIDAMBARA JOSHI (BHAT),
AGE: 51 YEARS,
R/O SUGAVI, TQ. SIRSI 531203
2. SRINIVAS CHIDAMBARA JOSHI (BHAT),
AGE: 47 YEARS,
R/O SUGAVI, TQ. SIRSI 531203
...RESPONDENTS
(BY SRI B S YADRAMI, SRNIOR COUNSEL FOR
SRI G V BHAT, ADVOCATE FOR R1
NOTICE TO R2 IS SERVED)
THIS RSA IS FILED U/S. 100 CPC., AGAINST THE JUDGEMENT &
DECREE DTD:25-09-2010 PASSED IN R.A.NO.86/2008 ON THE FILE OF
THE PRESIDING OFFICER, FAST TRACK COURT, SIRSI, DISMISSING
THE APPEAL, FILED AGAINST THE JUDGMENT DTD:20-08-2008 AND
THE DECREE PASSED IN O.S.NO.78/2004 ON THE FILE OF THE CIVIL
JUDGE(SR.DN) SIRSI, DISMISSING THE SUIT FILED FOR PARTITION
AND SEPARATE POSSESSION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 10.01.2024 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
It is unfortunate that this litigation between two
brothers has prolonged for more than 20 years over a few
items of property which was alleged to have been amicably
divided amongst them in the year 2003 itself. However, due
to various subsequent developments the alleged division is
sought to be resiled from.
2. The above second appeals have been filed under
Section 100 of Code of Civil Procedure, 1908 (hereinafter
referred to as 'CPC') challenging the common judgment
dated 25.09.2010 passed in R.A.Nos84/2008, 85/2008 and
86/2008 by the Fast Track Court, Sirsi, (hereinafter referred
to as 'first appellate Court'). Hence, they are taken up
together for consideration.
3. The parties will be referred to as per their ranking
before the trial Court and/or an abbreviation of their names
for the sake of convenience.
4. The relevant facts necessary for consideration of
the present appeals are that the propositus Chindambar
Joshi and his wife Smt. Sharada had four children namely: i)
Smt. Vinoda S. Hegde (daughter), ii) Smt. Sindhu Bhat
(daughter), iii) Sri Srinivas Joshi (son) and iv) Nagesh Joshi
(son).
5. Admittedly, the suit schedule properties belonged
to the propositus Chidambar Joshi who was the Karta and the
properties were enjoyed as joint family properties. That
Chidambar Joshi died on 21.06.2001. After his death the
eldest son Nagesh became the Karta and was managing the
joint family properties. His wife and daughters executed a
registered relinquishment deed dated 16.05.2003
relinquishing their share in the family properties in favour of
Nagesh. It is the contention of Srinivas that there was
mismanagement of the family properties by the Karta
Nagesh and he sought for his share and accordingly an oral
partition was agreed between the sons namely, Nagesh and
Srinivas in July 2003 and after a few days on 22.07.2003, a
memorandum of partition was executed between the parties
recording the oral partition agreed between them. It is
forthcoming that the application made by Srinivas to the
revenue authorities for entering his name in the revenue
records in terms of the memorandum was objected by
Nagesh.
6. The order/s passed by the revenue authorities on
the application made for entering of the name in the revenue
records culminated in WP No.10179/2005 which has been
disposed of by this Court vide order dated 21.5.2005 with an
observation that the entries made in respect of the suit
properties shall be subject to the result of the civil suit
pending between the parties.
7. Alleging interference in the possession of the suit
properties that were allotted to his share in the
memorandum of partition dated 22.07.2003, Srinivas filed
O.S.No.88/2004 for injunction to restrain Nagesh from
interfering with his peaceful possession and enjoyment of the
suit properties. The said suit was subsequently renumbered
as O.S.No.123/2007.
8. Nagesh filed O.S.No.78/2004 for partition claiming
7/10th share in the suit properties. The sisters namely
Vinoda and Sindu impleaded themselves as parties in the
said partition suit.
9. In both the suits although separate evidence was
recorded and separate judgments were passed, they were
heard together before the same Court.
10. O.S.No.123/2007 filed by Srinivas for injunction
was decreed and O.S.No.78/2004 filed by Nagesh for
partition was dismissed.
11. R.A.No.85/2008 was filed by Nagesh challenging
the judgment and decree passed in O.S.No.123/2007
(injunction suit). R.A.No.84/2008 was filed by Nagesh
challenging the judgment and decree passed in
O.S.No.78/2004 (partition suit). The sisters preferred
R.A.No.86/2008 challenging the judgment and decree passed
in O.S.No.78/2004 (partition suit).
12. All the appeals were heard together by the first
appellate Court and disposed of by a common judgment
dated 25.09.2010 whereunder the following order was
passed.
"ORDER
R.A.No.84/2008 is hereby partly
allowed. Consequently said O.S.No.78/2004 is
partly decreed.
The plaintiff (Nagesh) is entitled for
partition and separate possession of half share
in the suit properties.
R.A.No. 85/2008 is hereby allowed.
Consequently the impugned judgment and
decree passed by the learned Civil Judge
(Sr.Dn.), Sirsi in O.S.No.123/2007 is hereby
set aside and said O.S.No.123/2007 is hereby
dismissed.
R.A.No. 86/2008 filed by Vinoda and
Sindhu is hereby dismissed.
No order as to costs.
Draw separate decrees accordingly."
13. Being aggrieved, RSA No.5038/2011 is filed by
Srinivas challenging the judgment and decree passed in RA
No.84/2008 partly reversing the judgment and decree
passed in O.S.No.78/2004 (partition suit). RSA
No.5039/2011 is filed by Srinivas challenging the judgment
and decree passed in RA No.85/2008 reversing the judgment
and decree passed in OS No.123/2007 (injunction suit). RSA
No.5020/2011 is filed by Nagesh and RSA No.5021/2011 is
filed by sisters challenging the judgment and decree passed
in RA No.86/2008.
14. This Court vide orders dated 25.01.2023 admitted
the above second appeals and framed the following
substantial questions of law:
"In RSA No.5038/2011:
1. Whether the First Appellate Court is
justified in partly decreeing the suit without
considering and appreciating the material
evidence produced by the defendant in
justification of their contention of prior
partition?
2. Whether the First Appellate Court is
justified in holding that the earlier oral
partition in terms of memorandum of partition
dated 22.07.2003 was required to be
registered in view of purported insertion made
in the said document?
In RSA No.5039/2011:
"Whether the First Appellate Court was
justified in reversing the finding and
conclusion arrived at by the Trial Court in
granting decree of permanent injunction on
the premise of memorandum of partition not
being admissible for want of registration?"
In RSA No.5020/2011:
"Whether the Trial Court and the First
Appellate Court are justified in declining the
share of the plaintiff without appreciating
execution of relinquishment deed dated
14.05.2005 as per Ex.D7 by defendants 2 and
3 and the mother namely Sharada in terms of
which, defendants 2 and 3 relinquished their
1/20th share while the mother Sharada
relinquished 3/10th share in favour of the
plaintiff and further holding that such
relinquishment in favour of plaintiff enures to
the benefit of the entire family?"
In RSA No.5021/2011:
"Whether the defendants 2 and 3 are entitled
for equal share in the suit schedule property in
view of change in the provisions of Hindu
Succession Act despite relinquishing their
share in terms of Ex.D7?""
15. The case put forth by Srinivas in the injunction
suit is that the properties of the joint family have been orally
partitioned and recorded in the memorandum of partition
dated 22.07.2003 and Nagesh and Srinivas being in
possession of their respective shares, he was entitled for an
order of injunction.
16. With regard to the registered relinquishment
deed dated 16.05.2003, it is the contention of Srinivas that
the relinquishment by the sisters and mother would enure to
the benefit of the family.
17. The case put forth by Nagesh in the partition suit
is that sisters and mother having relinquished their rights in
the suit properties in his favour vide relinquishment deed
dated 16.5.2003, he is entitled to 7/10th share and Srinivas
is entitled to 3/10th share in the suit properties.
18. With regard to the memorandum of partition, in
his pleadings, Nagesh in both the partition suit and injunction
suit has denied that there was a partition as alleged by
Srinivas. Whereas, with regard to the said partition it is the
stand of Srinivas as per his pleadings in both the suits that
as per the partition agreed to between them in July 2003
which was recorded in the memorandum of partition was
executed between the parties on 22.7.2003, which has been
acted upon and he has been in the possession of the
properties as agreed to between the parties vide the said
document and is carrying out agricultural activities in the
said properties under his possession and is also enjoying the
usufructs of the said agricultural activities.
19. Learned Counsel Sri A.P.Hegde appearing for
Srinivas assailing the judgment passed by the first appellate
Court contends that the first appellate Court has erred in
interfering with the well considered and reasoned order
passed by the Trial Court in both the suits. That the first
appellate Court has interfered with the finding recorded by
the Trial Court with regard to the Memorandum of Partition
by holding that there were insertions and over writings which
plea was not even taken by Nagesh. Further the finding with
regard to the description of the suit properties recorded by
the first appellate Court is not even a defence/plea taken by
Nagesh. Hence, he seeks for setting aside the judgment and
decree passed by the first appellate Court and affirming the
decree passed by the Trial Court in both the suits.
20. Learned Senior Counsel Sri Yadrami assisted by
learned Counsel Sri.Girish V.Bhat appearing for Nagesh
submits that the finding of the first appellate court is just and
proper and further that Nagesh has not agreed for the
partition of the properties and that he has struck off his
signature in the Memorandum of Partition and as also filed
objections to the same before the revenue authorities.
21. Learned Counsel Smt.B.G.Nirmala appearing for
the sisters submits that the sisters are also entitled to share,
despite Relinquishment Deed executed by them.
22. Heard detail submissions of all the learned
counsels and perused the record including the records of the
trial court and first appellate court.
23. Before considering the contentions put forth by
both the parties, it is necessary to notice the findings
recorded by the Trial Court and the First Appellate Court.
24. The Trial Court in OS No.78/2004 (partition suit)
has framed the following issues:
1. "Whether the plaintiff proves that the plaint
schedule properties are the joint family
properties or himself and defendants as
alleged?
2. Whether the plaintiff further proves that,
defendant No.2 and 3 have relinquished their
right, title in the plaint schedule properties
by executing a deed of relinquishment on
16.5.2003 in his favour and thus he has got
7/10th share in the plaint schedule
properties as alleged?
3. Whether the defendant No.1 proves the
earlier oral partition so set up and as
contended in para 8 of his W.S?
4. Whether the plaintiff is entitled for partition
and separate possession of his alleged 7/10th
share in the plaint schedule properties as
claimed?
5. Whether the defendant No.2 and 3 proves
that they are also entitled for their 3/20th
share in the plaint schedule properties as
contended?
6. To what relies to parties are entitled?
7. What order or Decree?"
25. The trial Court while considering issue Nos.1 to 5
has recorded the following findings:
(i) The trend of the evidence spoken by P.W.1, at
one breath he admits the oral partition, but subsequently
denies the said oral partition;
(ii) He admits that, the defendant has raised loans on
the properties allotted to his share, but subsequently he
states that he objected to the same.
(iii) He admits in the cross-examination that two
witnesses were present at the time of effecting partition as
also the panchas.
(iv) P.W.1 also admits that, as per the contents of
memorandum of partition (Ex.D.7), the revenue records
have been changed and there is a fence existing between
the properties of himself and defendant No.1 in respect of
item No.2 of the suit properties.
(v) It is forthcoming from the scrutiny of the evidence
of P.W.1 that in one breath he says that there was a oral
partition reduced into writing, but says it is cancelled.
(vi) P.W.1 further admits that, D.W.1 has paid loan of
`69,000/-.
(vii) It is clear from the evidence of P.W.1 that already
there is a severance of status of joint family between the
plaintiff and defendant No.1.
(viii) The defendant No.1 specifically alleges that, there
already was a oral partition and it was reduced into tippan
and was acted upon.
(ix) The defendant No.3 appears to be colluding along
with the plaintiff that they have relinquished their right in
the suit properties in favour of the plaintiff alone.
(x) According to defendant No1/D.W.2, on
16.05.2003 the sisters i.e., defendant Nos.2 and 3 executed
relinquishment deed in favour of the entire family and it has
enured to the benefit of the entire family.
(xi) There is nothing worthwhile elicited from the
mouth of D.W.2/defendant No.1 in the cross-examination.
(xii) If the principles of the Hindu Law as stated at
point No.264(1) of the Mulla's Treatise on Hindu Law is
applied, defendant Nos.2 and 3 (sisters) could not have
executed the relinquishment deed, exclusively in favour of
the plaintiff only. Even, if it is executed in the name of the
plaintiff, it enures to the benefit of all the members of the
family.
(xiii) Ex.D.6 is the objection filed by plaintiff before the
revenue authorities challenging the revenue entries which
discloses that he admits that there was an earlier oral
partition.
(xiv) It is forthcoming from Ex.D.7 that there is scoring
of signature of the plaintiff by him. According to him, he has
not agreed, he has stricken out the said portion in the said
document.
(xv) Plaintiff admits that he puts signature to the
tippani.
(xvi) It is clear that, as per the oral partition, they have
taken their share and are in possession, but the conditions
are not fulfilled.
(xvii) It is forthcoming that, Ex.D.7 has been acted
upon.
(xviii) The plaintiff is unable to prove before the Court
that, still there exists joint family status between the plaintiff
and the defendant No.1.
(xix) Now it is not open to the defendant Nos.2 and 4
to state that, they have got a share in the suit properties and
they are entitled to the same. At the instigation of the
plaintiff, they may have come before this Court.
(xx) In the year 2003 itself, there was a desruption of
the joint family status between the plaintiff and defendants.
(xxi) The defendant Nos.2 and 3 have executed
relinquishment deed favouring only to the plaintiff. So
undivided interest of defendant Nos.2 and 3 was relinquished
by them in favour of the plaintiff. But at the time of the said
relinquishment deed, there was no partition. Since defendant
Nos.2 and 3 have executed relinquishment deed when the
family was joint, it will definitely enure to the benefit of the
entire family.
(xxii) From the conduct of the defendant No.1 it
indicates that, there was a oral partition that has been
effected and it has also been proved.
(xxiii) It has also come in the evidence of PW.1 that
defendant No.1 has raised loan by mortgaging his properties.
(xxiv) In view of the documents produced by defendant
No.1, the partition is completed, effected and irrevocable.
(xxv) The plaintiff has not pleaded that, the
memorandum of partition at Ex.D.7 is a sham or concocted
document, he merely says that he is not satisfied with the
same.
26. The trial Court in O.S.No.123/2007 (injunction
suit) has framed the following issues:
(i) Whether plaintiff proves that he is in possession of
suit properties as per oral partition dated 22.07.2003?
(ii) Whether plaintiff further proves that defendant caused
obstruction for his peaceful enjoyment of suit
properties as alleged in plaint para No.7?
(iii) Whether plaintiff is entitled for the relief claimed?
(iv) What order or decree?
27. The trial Court while answering the said issues has
recorded the following findings:
i. To prove that there was an oral partition the evidence
of PWs.1 and PW.2 - a pancha is adduced. There is no
effective cross-examination of PWs.1 and 2 on this
aspect except denial.
ii. The defendant at one breath admits the memorandum
of partition dated 22.7.2003 vide Ex.P8, but at another
breath he says he has not agreed for the same.
iii. A scrupulous reading of all the documentary evidence
and records demonstrates that there was already a
partition and it is acted upon. But now the defendant
contends that still there is no partition.
iv. DW.1 has come before the Court and deposed many
things in his evidence, but his own evidence falsifies
that there was no partition at all.
v. Prima facie material placed on record by the plaintiff
shows that the plaintiff is in exclusive possession of the
suit properties. The defendant is unable to convince
the Court that he is still in possession of the joint family
properties or he is in common possession of the same.
vi. The plaintiff is able to prove his possession of the suit
properties by way of oral partition which is reduced into
writing and the said document is produced before the
Court. Though it is an unregistered document, it need
not be registered at all as it is a memorandum of
partition.
vii. The relinquishment deed came into existence prior to
partition.
viii. As per the law laid down by the Hon'ble Supreme Court
and by the Madras High Court, whatever relinquishment
made by the sisters would enure to the benefit of the
plaintiff and the defendant though it was exclusively in
the name of the defendant.
28. The first appellate Court considering all the three
appeals framed the following points for consideration:
1. "Whether the trial Court is justified in dismissing
O.S.No.78/2004 in toto?
2. Whether the trial Court is justified in decreeing
O.S.No.123/2007?
3. Whether the impugned judgments and decrees
need to be interfered with?
4. What Order or Decree?"
29. While considering the said points, the following
findings are recorded by the first appellate Court:
i. It is an admitted fact that the suit properties are the
ancestral properties. The description of the suit
properties in OS No.123/2007 do not properly tally with
the description of the property mentioned in the alleged
memorandum of partition (Ex.P8 in OS No.123/2007).
ii. The description of the suit properties is vague which is
fatal to the suit as contemplated under Order 7 Rule 3
of the CPC.
iii. The memorandum of partition dated 22.7.2003
indicates that it was written in the presence of panchas
for having partitioned the properties. That means the
document is partition deed which ought to have been
registered as per Section 17 of the Registration Act.
iv. The insertion made in line No.4 "F »AzÉ vÉÆArAiÀÄ°è" gives
the meaning that this document was written in memory
of earlier oral partition. Presumably this insertion was
made to overcome the mandatory provisions of Section
17 of the Registration Act.
v. The description of the properties fallen to the share of
plaintiff and defendant No.1 do not give proper
meaning and neither give proper picture of their shares.
vi. One A.V.Bhat has been examined as PW.2 in OS
No.123/2007 who has simply stated that he has signed
the memorandum of partition. His cross-examination
indicates that he was not the pancha for the partition
between the plaintiff and defendant No.1. Therefore,
he is not a competent person to speak about the
alleged partition. His oral evidence is self-interested,
vague and not inspiring and hence, discussion of the
same is not needed.
vii. The registered relinquishment deed (Ex.P7 in OS
No.78/2004) indicates that defendant Nos.2 and
3(sisters) and their mother have relinquished their
entire rights in the joint family properties. Hence,
defendant Nos.2 and 3 are estopped from contending
that they have still retained some share in the suit
properties.
viii. The recitals of Ex.P8 makes it clear that this is not an
ultimate partition deed, but intended to be an
agreement of partition.
ix. In view of the judgments of the Hon'ble Supreme Court
and Madras High Court, the relinquishment deed will
not entitle the plaintiff to claim more share than
defendant No.1.
30. The following facts are clear and forthcoming from
the findings recorded by the trial Court and the first appellate
Court:
i. The trial Court in both the suits and the first appellate
Court have concurrently held that the relinquishment
executed by the sisters and the mother will enure to
the benefit of the entire family and the properties which
are the subject matter of the suits are required to be
partitioned between the plaintiff and the defendant
No.1.
ii. The trial Court in both the suits have held that in the
memorandum of partition dated 22.7.2003 Nagesh and
Srinivas have recorded the agreement reached
amongst them as to the division of properties amongst
themselves in terms of what is mentioned in the said
memorandum. However, the first appellate Court has
recorded a finding that the said memorandum dated
22.7.2003 does not record a prior partition, but divides
the properties amongst the brothers in the said
document itself and hence, the same requires
registration as contemplated under Section 17 of the
Registration Act. That the said document admittedly
not having been registered, the same cannot be relied
upon and hence, decreed the suit for partition holding
that Nagesh and Srinivas are entitled to half share each
in the suit properties.
iii. With regard to the aspect whether under the
relinquishment deed dated 22.7.2003 the sisters are
entitled to relinquish their share in the suit properties
solely in favour of Nagesh, there is a concurrent finding
that such a relinquishment solely in favour of Nagesh is
impermissible in law and the relinquishment made by
the sisters would enure to the benefit of the entire
family.
iv. It is relevant to note that the relinquishment deed
dated 22.7.2003 was prior to the memorandum of oral
partition dated 12.9.2006.
v. The first appellate Court has also recorded a finding
that the description of properties in the memorandum
of partition is not clear and the description of the
properties in the suit and the memorandum of partition
are different.
31. The judgment of the Hon'ble Supreme Court and
the Madras High Court which have been relied upon by the
trial Court and the first appellate Court are noticed as
follows:
(i) The Hon'ble Supreme Court in the case of
T.Venkata Subbamma v. T.Rattamma1 has held as
follows:
"20. Coming back to the facts of the case, we find that
Rami Reddy made the gift for the common benefit of the
donee as well as his sons as held by the High Court. It is
submitted on behalf of the respondents that really it is a
case of renunciation or relinquishment by Rami Reddy of
his interest in favour of his brother and his sons. It was the
intention of the donor that the property might be enjoyed
by his brother and his sons and, excepting that the donor
had reserved to himself a life interest, presumably for his
maintenance, he gifted his entire interest in the
coparcenary property to his brother. There is some force in
AIR 1987 SC 1775
the contention of the learned Counsel for the respondents
that the gift should be construed as relinquishment or
renunciation of his undivided interest by the donor in
favour of the other coparceners. Although the gift is
ostensibly in favour of Veera Reddy, but really the donor
meant to relinquish his interest in the coparcenary in
favour of Veera Reddy and his sons. In this connection, we
may refer to the following passage from Mulla's Hindu Law,
Fifteenth Edn., Article 264 at p. 357:
"264. (1) Renunciation or relinquishment of his
share.--A coparcener may renounce his interest in
the coparcenary property in favour of the other
coparceners as a body but not in favour of one or
more of them. If he renounces in favour of one or
more of them the renunciation enures for the benefit
of all other coparceners and not for the sole benefit
of the coparcener or coparceners in whose favour the
renunciation is made. Such renunciation is not
invalid even if the renouncing coparcener makes it a
condition that he would be paid something towards
maintenance. The renunciation or relinquishment
must, of course, be genuine. If fictitious and not
acted upon it would not be operative as between the
parties and partition can be claimed."
(emphasis supplied)
(ii) In the case of Subbanna v. Balasubbareddi
(FB)2 the question referred to the Full Bench of the Madras
High Court was:
"The question propounded is whether one member of
a joint Hindu family consisting of several members
can, irrespective of a partition of the family estate,
AIR (32) 1945 Madras 142
give his own interest therein to one of the other
coparceners."
(ii)(a) The Full Bench upon noticing the relevant case
laws on the point answered the said question as under:
"The answer which we give to the question referred
is this: A member of a joint Hindu family governed by the
Mitakshara law cannot give his interest in the family estate
to one of several coparceners if they remain joint in estate.
In such circumstances he can relinquish his interest but the
relinquishment operates for the benefit of all the other
members."
(emphasis supplied)
32. In view of the factual matrix and legal position as
noticed above, the relinquishment made by the sisters will
not enure solely to the benefit of Nagesh but to the entire
family and hence, the suit properties are to be divided
between the brothers i.e., Srinivas and Nagesh.
33. It is the contention of the sisters that they have
relinquished only 1/20th share each and after the amendment
to the Hindu Succession Act, the daughters have an equal
share and hence, their shares together comes to 4/10th
share. That in view of the same, they are also entitled to
their shares in the suit properties. In order to consider the
same, it is relevant to note that the sisters had putforth the
said plea in their written statements filed in O.S.
No.78/2004. The same was considered by the Trial Court
and having regard to the fact that Nagesh who was
examined as PW.1 in the partition suit had admitted in the
cross-examination that the properties were the joint family
properties recorded a finding that the suit properties were
joint family properties, the Trial Court noticing the contention
of the sisters and noticing the settled position of law has not
granted the relief sought for by them. The said aspect of the
matter has also been considered by the First Appellate Court
and the appeal of the sisters has been rejected.
33.1 Learned counsel for the sisters has failed in
demonstrating that the said concurrent findings recorded by
the Trial Court and the First Appellate Court after noticing
the settled position of law as held by the Hon'ble Supreme
Court and the Madras High Court are in any manner
erroneous and liable to be interfered with by this Court in the
present Second Appeal. The reliance placed by the learned
counsel for the sisters on a judgment of a Co-ordinate Bench
of Bombay High Court is not applicable to the facts of the
present cases as the same is rendered under a different
factual matrix and the trial Court and the First Appellate
Court having relied on the judgment of the Hon'ble Supreme
Court while adjudicating the contention of the sisters the
same is not liable to be interfered with.
34. With regard to the contention as to whether the
memorandum of partition dated 22.7.2003 [Ex.D7 in OS
NO.78/2004 (partition suit) and Ex.P8 in OS No.123/2007
(injunction suit)] is a memorandum of prior partition or a
partition deed itself, the following aspects are to be noticed:
34.1 It is the specific plea of Srinivas in both the suits
that himself and his brother had mutually agreed to partition
the joint family properties in July 2003 which was reduced
into writing vide the Memorandum dated 22.7.2003 in the
presence of panchas which partition has been acted upon.
34.2 That Nagesh in the pleadings in both the suits has
merely denied that a partition took place as contended by
Srinivas. However, in his cross-examination (i.e., cross-
examination of PW.1 in OS No.78/2004) he admits that the
parties have put up a fence demarcating their respective
properties as also the fact that they are living in separate
houses having separate electricity and telephone
connections.
34.3 That the statement given by Nagesh before the
Revenue Authorities was confronted and marked as Ex.D7 in
OS No.78/2004 wherein, he admits the factum of partition.
34.4 It is not the case of Nagesh that an insertion was
made as has been recorded by the first appellate Court.
34.5 The contention of Nagesh opposing the
memorandum of partition dated 22.7.2003 was that Srinivas
not having paid Nagesh the agreed amount of `65,000/-, he
has not cleared the dues and hence, he has subsequently
struck off his signature from the memorandum of partition
dated 22.7.2003 and hence the said memorandum is an
invalid document.
34.6 It is forthcoming from a perusal of the
memorandum dated 22.7.2003 that the parties have
recorded the same to place on record the partition agreed to
between them. Further, at clauses 1 to 5 of the said
memorandum, the manner in which various properties would
be divided between the parties have been noted. It is
relevant to note that there is no much dispute with regard to
clauses 1 to 5. At clause 6, it is recorded that the debts
have to be paid by Nagesh and Srinivas has to pay Nagesh a
sum of `65,000/- before 30.7.2003 in the presence of
witnesses. Admittedly, the said sum of `65,000/- has not
been paid by Srinivas to Nagesh and the entire matter in
controversy rests regarding this clause.
34.7 A witness to the memorandum has been
examined as PW.2 in OS No.123/2007 (injunction suit) and
he has deposed regarding the same. He has also been
cross-examined. The Trial Court appreciating the evidence of
PW.2 has recorded a finding that in his presence as per the
oral partition the memorandum has been written which has
been acted upon. It is further recorded that there was no
effective cross-examination on this aspect.
34.8 It is forthcoming from the material on record that
Srinivas has cleared his portion of the debts and Srinivas has
also raised loans on the property that fell to his share.
35. The first Appellate Court while interfering with the
findings of the Trial Court held that the description of the suit
properties given in OS No.123/2007 do not tally with the
description made in the memorandum and the description is
vague and do not give proper meaning and reading. Further,
a finding is recorded that the insertion made in line 4 as "F
»AzÉ vÉÆArAiÀÄ°è" gives the meaning that it was written in the
memory of an earlier partition to overcome the mandatory
provision of Section 17 of the Registration Act, 1908. Hence,
a finding has been recorded that the Trial Court was not
justified in placing reliance on the said memorandum.
36. In view of the case putforth by both the brothers,
it is clear that the findings of the first appellate Court are
contrary to the defence putforth by Nagesh with respect to
the memorandum of partition dated 22.7.2003. Although
the parties admittedly having orally agreed to divide the
properties amongst themselves and the said division has
subsequently been recorded in the memorandum of partition
dated 22.7.2003 which was signed in the presence of the
panchas, however, the contention putforth by Nagesh is that
Srinivas is required to pay Nagesh a sum of `65,000/- which
was not paid and hence, he did not clear the liabilities. It is
forthcoming from a reading of the memorandum of partition
dated 22.7.2003 that there is no dispute between the parties
with regard to the manner of division of the properties and
the identity of the properties thereof that was divided
amongst them.
37. The first appellate Court has recorded a finding
that there is an insertion with regard to the words 'F »AzÉ
vÉÆArAiÀÄ°è' and hence, it is made to look as if there was a prior
partition. It is relevant to notice that there are various
insertions in the Memorandum of Partition dated 22.7.2003
at various places and the said insertions appear to have been
occurred in the natural process of preparing the document.
In any event, the said Memorandum dated 22.7.2003 is not
contested by Nagesh by alleging that Srinivas has made
various insertions that were not agreed upon.
38. The first appellate Court has also recorded a
finding that the properties have not been properly described
in the said Memorandum dated 22.7.2003 as well as in the
suit in OS No.78/2004. It is relevant to note that Nagesh
and Srinivas have not contested the suit by alleging that
there is no proper description of the parties. There is no
dispute between the parties with regard to the identity and
extent of the properties which is the subject matter of the
said two suits. Hence, the said findings recorded by the first
appellate Court on the said aspect is erroneous and contrary
to the material on record.
39. It is clear and forthcoming from a reading of the
memorandum dated 22.7.2003 that the same has reduced
into writing a prior partition that was agreed to between the
parties. The only objection which Nagesh appears to have to
the said Memorandum is the fact that a sum of `65,000/-
that is stated therein to be paid by Srinivas to him has not
been paid and hence, it appears that he has started objecting
to the said partition.
40. However, having regard to the categorical findings
recorded by the Trial Court that the parties have acted upon,
the findings recorded by the first appellate Court are contrary
to the contentions putforth by the parties and the material
on record.
41. It is further forthcoming in the said memorandum
of partition that Srinivas was required to pay Nagesh a sum
of `65,000/- and it was the responsibility of Nagesh to pay
the debts. It is not specifically stated in the memorandum
that only upon payment of `65,000/- by Srinivas, that
Nagesh is required to pay the loan. In other words, regarding
payment of money, the clause in the memorandum does not
in any manner operate to be a set of reciprocal promises,
wherein only consequent to Srinivas having paid the sum of
`65,000/- to Nagesh, that Nagesh would be required to clear
the family dues of `1,30,000/-. In the said memorandum
there is also no mention as to the consequences of default of
non payment of `65,000/- by Nagesh on or before
30.7.2003. It is also not stated that the division of properties
agreed upon is dependent on the payment of the amounts as
mentioned therein.
42. It is the case of Nagesh that when the application
was made by Srinivas for change of revenue entries, he has
consistently objected to the same and his objection to the
division of properties is also forthcoming from various
complaints. It is forthcoming from the objection of Nagesh
to the revenue authorities as also the police complaints that
he does not deny the fact that there was a division of the
properties. His objection is only that as per the memorandum
dated 22.7.2003 agreed between himself and Srinivas, since
Srinivas did not pay him the sum of
`65,000/-, Nagesh has struck off his signature from the said
memorandum and the said memorandum is inoperative.
43. The Trial Court in both the suits has adequately
appreciated the oral and documentary evidence on record
with regard to the partition as asserted by Srinivas and as
denied by Nagesh. The Trial Court has categorically recorded
a finding that although Nagesh has denied the partition in his
oral evidence, he has admitted that both the parties are in
possession of their respective properties and that there is a
fence demarcating their properties and they have separate
electricity and telephone connections. The Trial Court has
also adequately appreciated the other oral and documentary
material and has recorded a finding that the said partition
has also been acted upon.
44. The first appellate Court, without appreciating all
the oral and documentary material on record, only upon a
mis-reading of the memorandum, set aside the findings of
the Trial Court. The findings of the First Appellate Court are
ex facie erroneous and liable to be interfered with.
45. Learned Senior counsel appearing for Nagesh has
relied upon the judgment of the Hon'ble Supreme Court in
the case of M.L.Subbaraya Setty by Lrs., & Ors., v.
M.L.Nagappa Setty by Lrs., to contend that mere
severance of status of a joint family, the character of a joint
family does not change with such severance and it retains
the character of a joint family till partition. The said
judgment is wholly inapplicable to the facts of the present
case since in the said case a suit for partition was filed
claiming 1/4th share on the basis of a Will. The Will was
contested in the said suit. The Trial Court had held that the
property could be disposed of by a Will. The first Appellate
Court had held that the plaintiff was entitled for 1/19th share.
However, the High Court had held that the plaintiff was
entitled to 2/19th share. The Hon'ble Supreme Court
affirmed the judgment of the High Court and thereafter
AIR 2002 SC 2066
substituted the decree passed by the High Court by setting
out certain terms. Subsequently, in the final decree
proceedings, the question that arose was as to whether the
plaintiff having been found in possession of assets of more
than the value of the 2/19th share and some of the assets
being the shares not being available for partition as to the
manner in which the shares were required to be valued and
the partition effected. Hence, the said judgment will not aid
the case of Nagesh.
45.1 The learned Senior Counsel further placed reliance
on a co-ordinate Bench judgment of this Court in the case of
Hanumanth Bhimappa Sanadi & Ors., v. Rudrappa
Thammanna Sanadi4 wherein, this Court considering a
second appeal in a suit for partition has recorded a finding
that mere reliance on mutation entries will not prove a
partition. In the said case, this Court had noticed that the
mutation entries were made on the basis of Varadi where, all
the parties have not affixed their signatures and hence, it
AIR 2005 KAR 393
was held that mere enjoyment of the property separately
would not itself lead to inference of partition. In the present
case, it is the specific plea that the parties had orally agreed
upon a partition which was recorded in the memorandum
dated 22.3.2007. Hence, the said judgment is inapplicable
to the facts of the present case.
46. It is relevant to note the judgment of the Hon'ble
Supreme Court in the case of Roshan Singh v. Zile Singh5
wherein, the Hon'ble Supreme Court considering as to when
an instrument of partition is inadmissible for want of
registration has held as follows:
"9. It is well settled that while an instrument of partition
which operates or is intended to operate as a declared
volition constituting or severing onwership and causes a
change of legal relation to the property divided amongst
the parties to it, requires registration under Section
17(1)(b) of the Act, a writing which merely recites that
there has in time past been a partition, is not a
declaration of will, but a mere statement of fact, and it
does not require registration. The essence of the matter is
whether the deed is a part of the partition transaction or
contains merely an incidental recital of a previously
completed transaction. The use of the past tense does not
necessarily indicate that it is merely a recital of a past
transaction. It is equally well settled that a mere list of
properties allotted at a partition is not an instrument of
(2018) 14 SCC 814
partition and does not require registration. Section
17(1)(b) lays down that a document for which
registration is compulsory should, by its own force,
operate or purport to operate to create or declare some
right in immovable property. Therefore, a mere recital of
what has already taken place cannot be held to declare
any right and there would be no necessity of registering
such a document.
(emphasis supplied )
47. It is clear and forthcoming from a reading of the
memorandum of partition dated 22.07.2003 that the said
document has recorded what was earlier agreed to between
the parties. This aspect has been specifically pleaded by
Srinivas in the partition suit as well as in the injunction suit.
It is also the specific case of Srinivas that the said partition
had been acted upon and the parties were in separate
possession of the properties as was noted in the
memorandum. Since there was interference by Nagesh in
the separate possession of Srinivas, the suit for injunction
was filed.
48. The Trial Court in both the injunction suit and the
partition suit has adequately appreciated the manner and
circumstances under which the memorandum dated
22.3.2007 was executed as well as the other material on
record evidencing that the said partition was acted upon.
The first Appellate Court without reference to the oral and
documentary evidence available on record which was in
detail appreciated by the Trial Court and findings were
recorded, has set aside the judgment of the Trial Court. It is
clear that the judgment of the first Appellate Court is ex facie
erroneous and liable to the interfered with. The Trial Court
in both the suits having adequately appreciated the oral and
documentary evidence available on record and having
recorded the findings as noticed above, the judgments of the
Trial Court is required to be affirmed.
49. In view of the discussions made above, the
substantial questions of law framed are answered as follows:
i. In RSA No.5038/2011, the substantial
questions of law Nos.1 and 2 are answered
in the Negative.
ii. In RSA No.5039/2011, the substantial
question of law is answered in the Negative.
iii. In RSA No.5020/2011, the substantial
question of law is answered in the
Affirmative.
iv. In RSA No.5021/2011, the substantial question
of law is answered in the Negative.
50. In view of the aforementioned, the following:
ORDER
i. RSA Nos.5038/2011 and 5039/2011 are
allowed;
ii. RSA Nos.5020/2011 and 5021/2011 are
dismissed;
iii. The judgment and decree dated 25.9.2010
passed in RA Nos.84/2008 and 85/2008 by
the Fast Track Court, Sirsi, is set aside and
the judgment and decree 25.09.2010 passed
in RA No.86/2008 is affirmed;
iv. The judgment and decree dated 20.8.2008
passed in OS.No.78/2004 and OS
No.123/2007 by the Court of the Civil Judge
(Sr.Dn), are affirmed;
v. Decree to be drawn accordingly.
Sd/-
JUDGE
Naa/PJ/nd/Bs
