Karnataka High Court
K. Sampath Kumar S/O Late Shankar Sastry vs Smt. P. Suguna W/O Late P.Rama Mohan on 10 January, 2024
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RFA No. 100431 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100431 OF 2017 (PAR/POS)
BETWEEN:
1. K. SAMPATH KUMAR S/O. LATE SHANKAR SASTRY
AGED ABOUT 63 YEARS, OCC: AGRIL.
R/AT: NO.69, NEAR ALLAM KATTA,
KUDUTHINI, TQ. AND DIST: BALLARI-583101.
2. K.MADHUSUDHAN S/O. LATE SHANKAR SASTRY
AGED ABOUT 59 YEARS, OCC: AGRIL,
R/AT: NO.72, NEAR ALLAM KATTA,
KUDUTHINI, TQ.AND DIST: BALLARI-583101.
...APPELLANTS
(BY SRI. RAJASHEKAR GUNJALLI, ADVOCATE)
AND:
Digitally signed
by
MOHANKUMAR
MOHANKUMAR B SHELAR
B SHELAR
Date:
2024.02.07
14:38:34 +0530
1. SMT. P. SUGUNA W/O. LATE P.RAMA MOHAN
AGED ABOUT 67 YEARS, HOUSEWIFE,
R/O: NO.S-1, SEEMA RESIDENCY,
4TH MAIN ROAD, POSTRAL COLONY,
SANJAY NAGAR, BENGALURU-560094.
2. SMT.B.V.KALAVATHAMMA
W/O. B.V.NAGARAJ,
AGED ABOUT 57 YEARS, HOUSEWIFE,
R/AT: SRI VENKATESHWARA NILAYA,
D.NO.249, NEAR SSK CHOUTRY,
HARIHARA, DAVANEGERE DISTRICT-577001.
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RFA No. 100431 of 2017
3. SMT.K.SREEDEVI
W/O. LATE K.MURALI MOHAN RAO,
AGED ABOUT 61 YEARS, HOUSEWIFE,
R/O: 2/353, RAM NAGAR PORDDUTUR,
KADAPA DISTRICT.
4. SMT.P.R.KRISHNA PRIYA,
W/O. P.R.SANATH KUMAR,
AGED ABOUT 53 YEARS, HOUSEWIFE,
R/O: 158, C/O. SHIVA RUDRACHARY,
3RD CROSS, DATTATRYA BADAVANE,
K.G.NAGAR (GAVIPURAM GUTTAHALLI)
BENGALURU.
5. SRI.P.VIJAYA SIMHA
H/O. SMT. LATE HARIPRIYA BAL,
S/O. P.LAXMI NARSIMHAM
AGED ABOUT 87 YEARS,
R/AT: FLAT NO.102, FIRST FLOOR,
Y.V.R. RESIDENCY, NEAR POTTI
SREERAMULU HIGH SCHOOL,
1ST ROAD ANANTHAPUR-515001.
6. SMT.S.GEETHA W/O. VISHWANATHA RAO,
AGED ABOUT 61 YEARS, HOUSEWIFE,
R/AT: FLAT NO.102, FIRST FLOOR,
Y.V.R. RESIDENCY, NEAR POTTI
SREERAMULU HIGH SCHOOL,
1ST ROAD ANANTHAPUR-515001.
7. SRI.UDAYA SIMHA S/O. P.VIJAYA SIMHA
AGED ABOUT 55 YEARS, HOUSEWIFE,
R/AT: FLAT NO.102, FIRST FLOOR,
Y.V.R. RESIDENCY, NEAR POTTI
SREERAMULU HIGH SCHOOL,
1ST ROAD ANANTHAPUR-515001.
8. SMT.P.SUMANA W/O. ALUR NARASIMHAM
D/O. P.VIJAYA SIMHA,
AGED ABOUT 58 YEARS,
R/AT: FLAT NO.102, FIRST FLOOR,
Y.V.R. RESIDENCY, NEAR POTTI
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RFA No. 100431 of 2017
SREERAMULU HIGH SCHOOL,
1ST ROAD ANANTHAPUR-515001.
9. P.AJAYA SIMHA S/O. P.VIJAYA SIMHA
AGED ABOUT 61 YEARS,
R/O: NO.29-500/8, 205,
NEAR PARADISE, DINAKAR NAGAR,
NEREDMET, SECUNDERABAD-500056.
10. Y.VENKATA SUBBAIAH S/O. NOT KNOWN
AGED ABOUT 81 YEARS,
R/AT: NO.21/308, NEAR YELLAMMA
KATTA, VUKKALAMMA STREET,
OLD TOWN, ANANTHAPUR-515005.
11. Y.VENKARAMANA S/O. LATE DRAKSHAYANAMMA
AGED ABOUT 50 YEARS,
R/AT: NO.21/308, NEAR YELLAMMA
KATTA, VUKKALAMMA STREET,
OLD TOWN, ANANTHAPUR-515005.
12. Y.NANDAKISOR S/O. LATE DRAKSHAYANAMMA
AGED ABOUT 48 YEARS,
R/AT: NO.21/308, NEAR YELLAMMA
KATTA, VUKKALAMMA STREET,
OLD TOWN, ANANTHAPUR-515005.
13. G.O.UMADEVI
S/O. LATE DRAKSHAYANAMMA
W/O. G.O.SHARMA,
AGED ABOUT 44 YEARS,
R/AT: NO.21/308, NEAR YELLAMMA
KATTA, VUKKALAMMA STREET,
OLD TOWN, ANANTHAPUR-515005.
14. SMT.Y.SUKANYAMMA
W/O. Y.SUBRAMANYAM
AGED ABOUT 69 YEARS,
R/AT: PAMDURTHI AGRAHARAM VILLAGE,
DHARMAVARAM MANDAL,
ANANTHAPUR DISTRICT. A.P-515005.
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RFA No. 100431 of 2017
15. M.SRINIVASULU S/O. SANJAPPA
AGED ABOUT 38 YEARS,
R/AT: D.NO.34/27,
WARD NO.10, NEVAAR ONI
(WAVERS STREET)
BRUCEPET, BALLARI-583101.
16. THE SPECIAL LAND ACQUISITION OFFICER
KARNATAKA INDUSTRIAL
AREA DEVELOPMENT BOARD,
PLOT NO.33/A, LAKKAMANAHALLI
INDUSTRIAL AREA, P.B.ROAD,
DHARWAD-580112.
...RESPONDENTS
(BY SRI. S.S. YADRAMI SR.COUNSEL FOR
SRI. G.V. BHAT, ADVOCATE FOR R1 AND R2;
SRI. HARSH DESAI, ADVOCATE FOR R3 AND R4;
SRI. VIJAY S. CHINIWAR, ADVOCATE FOR R15;
NOTICE SERVED TO R5,R7 TO R14 AND R16;
R6 NOTICE HELD SUFFICIENT)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96
OF THE CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE PASSED BY THE LEARNED FIRST
ADDITIONAL SENIOR CIVIL JUDGE AT BALLARI IN
O.S.NO.149/2012 DATED 23-09-2017 AND ALLOW THE THIS
APPEAL BY DISMISSING SUIT IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
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RFA No. 100431 of 2017
JUDGMENT
This appeal is filed challenging the judgment and
preliminary decree dated 23.09.2017 passed in
O.S.No.149/2012 by the I Additional Senior Civil Judge,
Ballari.
2. For the sake of convenience, parties are
referred to as per their ranking before the trial court.
3. Appellants are defendant Nos.5 and 6,
respondent Nos.1 to 4 are the plaintiffs and other
respondents are the defendants.
4. The plaintiffs filed a suit for partition and
separate possession in respect of the suit schedule
properties. It is the case of the plaintiffs that, plaintiffs are
the daughters of defendant No.1 and deceased K.Shankara
Sastry and defendant Nos.2 to 6 are the brothers and
sisters of the plaintiffs. Defendant No.1 is the wife of
deceased K.Shankara Sastry and defendant Nos.2 and 3
are the daughters through first wife and defendant Nos.4
to 6 are the sons and daughters through second wife of
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late K.Shankara Sastry. Plaintiffs father K.Shankara Sastry
died on 01.09.1983 leaving behind him defendant Nos.1 to
6 and plaintiffs as legal heirs. It is contended that suit
schedule properties are the ancestral properties and one
K.Rama Sastry was the original propositus. He inherited
the suit schedule properties from his ancestors. After his
demise, the father of the plaintiffs succeeded to the suit
properties. The father of the plaintiffs was in peaceful
possession and enjoyment of the suit properties till his
demise and after his demise, the same is in peaceful
possession and enjoyment of all the family members.
Defendant No.1 with an intention to deprive the legitimate
share of the plaintiffs had executed registered sale deed in
respect of item nos.13 and 14 in favour of defendant No.7.
Defendant Nos.5 and 6 illegally got changed mutations in
their favour and recently plaintiffs came to know that item
Nos.11 to 14 of the suit properties are acquired by
defendant No.8-KIADB for establishment of steel industry.
Defendant Nos.5 and 6 on the guise of illegal mutations in
their favour and defendant No.7 on the guise of illegal sale
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deed behind the back of the plaintiffs trying to withdraw
the compensation amount from defendant No.8-KIADB by
suppressing the fact before the KIADB. The plaintiffs being
the legal and lawful heirs/co-owners and having right, title
and interest in the suit schedule properties. Defendant
No.7 has not acquired any title in respect of item Nos.13
and 14 of the suit schedule properties and further,
defendant No.1 had no right to execute the registered sale
deed in favour of defendant No.7 in respect of item Nos.13
and 14. The sale deed alleged to have been executed by
defendant No.1 in favour of defendant No.7 is not binding
on the plaintiffs. Hence, plaintiffs have got share in the
suit schedule properties. Plaintiffs and defendants are the
members of Hindu undivided joint family and there is no
partition between the plaintiffs and defendants. Hence,
plaintiffs demanded for partition and separate possession,
but the defendants refused to effect partition. Hence,
cause of action arose for the plaintiffs to file the suit for
partition and separate possession.
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5. Defendant No.6 filed written statement denying
the averments made in the plaint. It is contended that
K.Rama Sastry was the ancestor and he had two sons
namely Venkoba Sastry and Shankara Shastra. Venkoba
Sastry pre-deceased his father. The suit properties were
held in co-parcenary. After the demise of Rama Sastry,
Shankara Sastry was the sole surviving co-parcener and
plaintiffs and defendant Nos.2 to 6 were joint family
members. It is denied that sale deed executed by
defendant No.1 in favour of defendant No.7 in respect of
item Nos.13 and 14 is not binding on the plaintiffs. It is
contended that late Shankara Sastry was the Kartha of the
family and he effected partition by metes and bounds in
the year 1970 and the said oral partition was reduced into
writing as palupatti on 16.02.1973. It is contended that
plaintiff Nos.1 and 2 were born prior to 1956 and they
have no right to maintain the suit, as per Section 6 of the
Hindu Succession Amendment Act, 2005. It is contended
that there was a severance of status as early as 1970 and
the parties to the division have been holding the lands
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from the time of disruption in severalty on the basis of
division effected by Kartha of the family and they got
mutated the lands in the revenue records. The plaintiffs
have no right, title and share in the suit schedule
properties. Further, late Shankara Sastry filed an
application before the Land Tribunal on the basis of
palupatti in respect of holding to decide whether the lands
were within the ceiling limits as provided under the Land
Reforms Act. The division was also confirmed by the
Tribunal vide order dated 27.08.1996. It is contended that
plaintiffs have installed pump sets and have also been
obtaining crop loan by hypothecating the lands allotted to
them and they are cultivating their lands by hiring
labourers. Defendant Nos.1, 5, and 6 are also enjoying the
lands allotted them in the division effect by their father.
The plaintiffs never claimed share out of the income from
the lands and the division effected long back by Shankara
Sastry was accepted and acted upon. Hence, on these
grounds prayed to dismiss the suit.
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6. Defendant No.7 filed written statement denying
the averments made in the plaint and reiterated the
written statement averments of defendant No.6. He
further contended that defendant No.7 is a bonafide
purchaser as defendant No.7 after verifying the records
has purchased item Nos.13 and 14 and he is in possession
and enjoyment of item Nos.13 and 14 of the suit schedule
properties. It is further contended that suit filed by the
plaintiffs is barred by limitation as the sale deed was
executed on 03.122003 and the suit was filed in the year
2012 and the plaintiffs filed the suit only to harass
defendant No.7 and hence, prayed to dismiss the suit.
7. Defendant Nos.1 and 5 filed memo adopting the
written statement filed by defendant No.6.
8. Defendant Nos.5 and 6 filed additional written
statement contending that propositus during this lifetime
effected division of the suit properties amongst his sons
and daughters and the transaction was reduced into
writing and the same was acted upon. It is contended that
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suit of the plaintiffs is highly speculative and they have put
forth a false case in view of increase in land prices. Hence,
on these grounds prayed to dismiss the suit.
9. The trial court on the basis of the pleadings of
the parties framed following issues:
"ISSUES
1. Whether the plaintiffs prove that the suit
schedule properties still remained as Hindu Joint
family Properties?
2. Whether defendant No.6 proves that the Kartha
of their family Late Sri Shankar Shastry got
divided suit schedule properties by metes and
bounds in the year 1970 and it was reduced into
writing on 16.2.1973?
3. Whether defendant No.6 proves that the partition
deed dated 16.2.1973 is accepted and acted
upon between the parties?
4. Whether defendant No.7 proves that he is the
bonafide purchaser of property comprised in
Sy.No.621/BC and 630/BCD measuring 3.51
acres from defendant No.1?
5. Whether plaintiffs are entitled to 1/10th share in
the suit schedule property by metes and
bounds?
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6. Whether plaintiffs are entitled to the reliefs
sought in the suit?
7. What Order or Decree?
ADDITIONAL ISSUES
1. Whether the plaintiffs prove that the suit item
No.11 to 14 of the suit schedule properties are
available for partition?
2. Whether the suit of the plaintiffs is maintainable
in respect of item No.11 to 14 of the suit
property as contended by defendant No.8 in his
written statement?"
10. The plaintiffs in order to prove their case,
plaintiff No.1 was examined as P.W.1 and got marked 40
documents as Exs.P1 to P40. On behalf of the defendants,
defendant No.5 was examined as D.W.1 and defendant
No.7 was examined as D.W.2 and they got marked 8
documents as Exs.D1 to D8. The trial court on assessment
of oral and documentary evidence, answered issue No.1 in
the affirmative, issue Nos.2 to 4 in the negative, issue
Nos.5 and 6 party in the affirmative, additional issue No.1
in the negative, additional issue No.2 in the affirmative
and issue No.7 as per the final order. The suit of the
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plaintiffs was partly decreed. It is ordered and decreed
that, plaintiff Nos.1 to 4 are entitled for 1/27th share each
out of 1/3rd share of their deceased father K.Shankara
Sastry in plaint schedule house properties i.e., House
properties bearing Door Nos.60, 78, 79A, 60A and 79
situated at Kudithini village in Ballari Taluk and District
within the boundary mentioned in the plaint schedule and
in item No.1 to 10 and 15 of plaint schedule landed
properties i.e., Sy.No.32A measuring 15.17 acres,
Sy.No.32B measuring 3.54 acres, Sy.No.33A/2 measuring
4.24 acres, Sy.No.33A/1 measuring 15.00 acres,
Sy.No.415/A measuring 18.05 acres, Sy.No.526
measuring 0.81 acres, Sy.No.527A measuring 7.48 acres,
Sy.No.532 measuring 10.02 acres, Sy.No.533 measuring
12.19 acres, Sy.No.534 measuring 1.58 acres, all the
above stated lands are situated at Kudithini village, Ballari
Taluk and District and the land bearing Sy.No.446
measuring 15.26 acres situated at Siddammanahalli
village, Ballari Taluk and District. Defendant No.2(a) to
2(e) are together entitled 1/27th share and defendant
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No.3(a) to 3(d) together entitled 1/27th share of their
respective mother' share allotted out of deceased
K.Shankara Sastry's share in the above stated house
properties and item No.1 to 10 and 15 of the plaint
schedule properties, subject to payment of court fee
thereon.
11. Defendant Nos.5 and 6 aggrieved by the
judgment and preliminary decree filed this appeal.
12. Heard the learned counsel for defendant Nos.5
and 6, learned senior counsel for plaintiff Nos.1 and 2 and
learned counsel for plaintiff Nos.3 and 4.
submits that suit schedule properties are owned and
possessed by original propositus namely K.Shankara
Sastry. He submits that there was a partition during his
lifetime and he has effected oral partition between himself
and his children. The said oral partition was reduced into
writing in the year 1973. He submits that parties have
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acted upon the oral partition and palupatti is of the year
1973. He also submits that P.W.1 clearly admitted in her
cross-examination about the partition effected between
the plaintiffs and defendants including the oral partition in
the year 1973. He submits that trial court committed an
error in not considering the admission of P.W.1 in regard
to prior partition. He submits that when the plaintiff has
admitted the prior partition and when the partition is acted
upon, the trial court has committed an error in holding
that defendant Nos.5 and 6 have failed to prove the prior
partition. The finding recorded by the trial court on issue
Nos.2 and 3 are contrary to the admission of P.W.1, Ex.D1
and also the revenue records. Hence, he submits that the
trial court committed an error in passing the impugned
judgment and decree and prays to allow the appeal.
14. Per contra, learned senior counsel appearing for
plaintiff Nos.1 and 2 submits that plaintiffs have denied
about the prior partition during the course of cross-
examination. He submits that defendants in the written
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statement admitted that suit schedule properties are the
ancestral properties of the plaintiffs and defendants and
defendant Nos.5 and 6 have failed to prove that there was
oral partition in the year 1973. He also submits that D.W.1
during the course of cross-examination admitted that, as
per Ex.P13, after the death of the father, all the properties
have been mutated in the name of his mother. Hence, he
submits that the trial court was justified in passing the
impugned judgment and decree and prays to dismiss the
appeal.
15. Learned counsel appearing for plaintiff Nos.3
and 4 adopts the arguments of the senior counsel
appearing for plaintiff Nos.1 and 2.
16. Perused the records and considered the
submission of the learned counsel for the parties. The
points that arise for our consideration are:
1) Whether the plaintiffs prove that suit schedule
properties are the joint family properties of
plaintiffs and defendants?
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2) Whether defendant Nos.5 and 6 prove that oral
partition was effect in the year 1970 and the
same was reduced into writing on 16.02.1973
and the parties have acted upon?
3) Whether defendant No.7 proves that he is
bonafide purchaser?
4) Whether defendant Nos.5 and 6 proves that
judgment and decree passed by the trial court
is perverse, arbitrary and erroneous?
5) What order or decree?
17. Point No.1: It is the case of the plaintiffs that
originally the properties are owned by propositus Rama
Shastry. He had a son by name Shankar Shastry and he
died leaving behind him plaintiffs and defendant Nos.1 to 5
as his legal heirs. Suit schedule properties were owned
and possessed by late Shankar Shastry. Plaintiffs and
defendants are the members of Hindu undivided joint
family and there is no partition effected between the
plaintiffs and defendants in respect of the suit schedule
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properties. The plaintiffs in order to prove their case,
plaintiff No.1 was examined as P.W.1 and she has
reiterated the plaint averments in her examination-in-
chief.
18. To establish that the suit schedule properties
are the joint family properties of plaintiffs and defendants,
plaintiffs have produced documents. Ex.P.3 is the certified
copy of the Khata extract and RORs from the year 1976-
77 to 2011-12 pertaining to the land bearing Sy.No.33A/2
measuring 8.45 acres, Ex.P.4 is the certified copy of the
Khata extract and RORs from the year 1976-77 to 2011-
12 pertaining to the land bearing Sy.No.629A measuring
6.79 acres, Ex.P.5 is the certified copy of the Khata extract
and RORs from the year 1976-77 to 2011-12 pertaining to
land bearing Sy.No.630BCD measuring 7.54 acres, Ex.P.6
is the certified copy of the Khata extract and RORs from
the year 1976-77 to 2011-12 pertaining to land bearing
Sy.No.415/A measuring 18.05 acres, Ex.P.7 is the certified
copy of the Khata extract and RORs from the year 1976-
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77 to 2011-12 pertaining to land bearing Sy.No.526
measuring 0.81 acres, Ex.P.8 is the certified copy of the
Khata extract and RORs from the year 1976-77 to 2011-
12 pertaining to land bearing Sy.No.527A measuring 7.48
acres, Ex.P.9 is the certified copy of the Khata extract and
RORs from year 1976-77 to 2011-12 pertaining to land
bearing Sy.No.532 measuring 10.02 acre, Ex.P.10 is the
certified copy of the Khata extract and RORs from the year
1976-77 to 2011-12 pertaining to land bearing Sy.No.533
measuring 12.19 acres, Ex.P.11 is the certified copy of the
Khata extract and RORs from the year 1976-1977 to
2011-12 pertaining to land bearing Sy.No.534 measuring
1.58 acres, Ex.P.12 is the certified copy of the Khata
extract and RORs from year 1976-77 to 2011-12
pertaining to the land bearing Sy.No.34A measuring
15.17, Ex.P.13 to P.20 are certified copy of the mutation
extract, Ex.P.21 is the certified copy of the registered
Mortgage Deed, Ex.P.22 is the certified copy of the order
passed by land tribunal dated 27.08.1996. Exs.P.23 to 26
are the NIL Encumbrance Certificate, Ex.P.27 is the
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certified copy of the registered sale deed, Ex.P.32 is the
house tax demand register extract. Ex.P.33 is the copy of
the legal notice, Ex.P.34 is the reply notice, Ex.P.35 is the
certified copy of the Mutation Order, Ex.P.36 is the copy of
the NIL Encumbrance Certificate, Ex.P.37 is the RORs,
Ex.P.38 to Ex.P.40 are the settlement deeds dated
24.05.1975, 22.02.1968 and 24.05.1975.
19. From the perusal of the cross examination of
the P.W.1, he admitted that his father died in the 1983
and he also admitted that his father's 1st wife name is
Sitamma and defendant Nos.2 and 3 are the children of
Sitamma through his father-Shankar Sastry and further
admitted that his father's 2nd wife name is Smt.Laxmi and
she died issueless and further admitted that both of them
predeceased. After the death of Sitamma and Laxmi, the
Shankar Sastry, got married defendant No.1. During the
pendency of the suit, the defendant No.1 died. Further he
admits the signature appearing on Asthiya Palupattin
Vibhag dastavegu dated 16.02.1973. Further admits that
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the said Palupatti was prepared by his father on
16.02.1973 for the purpose of producing before the land
tribunal for the purpose of showing the holdings and
further admitted that as Ex.P.22 is the land bearing
Sy.No.1015 measuring 06 acres and 15 cents 33 Annas,
and 4.00 acres was allotted to the share of P.W.1 under
the Palupatti dated 16.02.1973 and admitted that the total
extent of land bearing No.1015 is measuring 30 acres and
further admitted that after the demises of his father the
entire extent of 30 acres of land in Sy.No.1015 was
mutated in the name of his mother in the revenue records
and in the said land there is Sy No.1015 was acquired for
the purpose of establishment of steel plant in the year
1984 and he also admits that the land bearing Sy.No.33A
measuring 4.00 acre. It was suggested to P.W.1 that since
1973 the plaintiffs and defendant Nos.2 and 4 are enjoying
their respective shares as shown in the Ex.P.2. He also
admits that land bearing Sy.No.446 measuring 6.00 acres
situated at Siddammanahalli village was fallen to the share
of his father and after his demise, the said land was
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transferred and mutated in the name of his mother and
also the land bearing Sy.No.290 measuring 42.98 acre
was fallen to the share of his father as per Palupatti dated
16.02.1973.
20. From the perusal of the cross examination of
the P.W.1, it is clear that, plantiff-P.W.1 is clearly admitted
regarding the partition took place during the life time of
Shankar Sastry, between Shankar Sastry and plaintiffs and
defendants. Further, P.W.1 has clearly admitted that
properties which are fallen to their respective parties are
enjoying their respective shares.
21. Further in rebuttal, defendant No.1 is examined
as defendant No.5, he has reiterated the plaint averments
in her examination-in-chief and got marked documents
Ex.D.1 is the Asthiya Palupattin Vibhagdastavegu Ex.D.2 is
the certified copy of the award passed in LAC No.09/77,
Ex.D.3 is the notice issued by the Tahsildhar, Ballari,
Ex.D.4 to D7 are the certified copy of the registered sale
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deeds executed in favour of defendant No.7. Ex.D.8 is the
certified copy of the registered sale deed.
22. During the course of cross examination, learned
counsel for the plaintiffs suggested to D.W.1 that the suit
properties which are alienated are originally belongs to the
grandfather. He admits that Ex.P.19 refers to the partition
deeds dated 05.12.2003 and mutation order passed in the
names of plaintiffs and defendants including name of
D.W.1. It is suggested as per Exs.P.16 to 20 are the
records of rights of suit properties were not standing in the
name of D.W.1. It was suggested that entire 42 acres of
land which was alienated by his mother fallen to the share
of his father under the Palupatti. Further defendant No.7
was examined as D.W.2 and he has deposed that he had
purchased the property in respect of item Nos.13 and 14
of the suit schedule properties from defendant No.1 under
two registered sale deed dated 03.12.2003 for valuable
consideration and verification of the said documents
pertaining to the title and encumbrance, he had purchased
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said land and he has deposed that the said land was
acquired for industrial purpose and item Nos.13 and 14
are not available for partition.
23. From perusal of the records produced by the
parties and as well as the oral evidence, it is clear that the
suit schedule properties were owned by late Shankar
Sastry. Though the defence taken by the defendant No.1
in the written statement that during the life time of
Shankar Sastry, there was oral partition between Shankar
Sastry, plaintiffs and defendant Nos.1 to 6. Though the
defendants has produced Palupatti which is marked as
Ex.D.1. The said document is marked subject to objection.
The said document is confronted to P.W.1 and he has
admitted the signature of his father on Ex.D.1. Further the
defence of defendants is corroborated by the admission of
P.W.1 during the course of cross examination in regard to
the palupatti of the year 1973. Further, it is the case of
the plaintiffs that the said Palupatti was executed only with
an intention to save the lands from the cealing limits.
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Further on the basis of the partition, the names of the
respective parties are entered in the revenue records and
plaintiffs have not challenged the revenue records. Further
properties which were fallen to the share of plaintiffs, they
have alienated the same. In view of the that plaintiff has
not explained the reasons on what basis plaintiffs have
sold the property fallen to their share. Considering the
admission of P.W.1 regarding prior partition and there was
a severance of status.
24. From perusal of the records, it is clear that
plaintiffs have failed to prove that the suit schedule
properties are the joint family properties of the plaintiffs
and defendants. In view of the above discussion, we
answer point No.1 in the negative.
25. POINT NO.2: Though it is case of the
defendant No.5 and 6 that there was oral partition effected
in the year 1970 and same was reduced into writing on
16.02.1973 and the parties have acted upon as the finding
already recorded in the point No.1 that D.W.1 has clearly
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admitted about the partition as per the Palupatti dated
16.02.1973 and he has also admitted the signature of his
father on Ex.D1. Ex.D1 was confronted to P.W.1. In the
course of cross examination, he has admitted the
signature of his father. The Hon'ble Apex Court in the case
of RATNAM CHETTIAR & ORS VS S. M. KUPPUSWAMI
CHETTIAR & ors reported in AIR 1976, SC (1) 863,
wherein the Hon'ble Apex Court has stated that the
principles when the partition can be reopened and it is
held in para 19 as under:
"19. Thus on a consideration of the authorities discussed
above and the law on the subject, the following propositions
emerge:
(1) A partition effected between the members of the Hindu
Undivided Family by their own volition and with their consent
cannot be reopened, unless it is shown that the same is
obtained by fraud, coercion, misrepresentation or undue
influence. In such a case the Court should require a strict
proof of facts because an act inter vivos cannot be lightly set
aside.
(2) When the partition is effected between the members of
the Hindu Undivided Family which consists of minor
coparceners it is binding on the minors also if it is done in
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good faith and in bona fide manner keeping into account the
interests of the minors.
(3) Where, however, a partition effected between the
members of the Hindu Undivided Family which consists of
minors is proved to be unjust and unfair and is detrimental to
the interests of the minors the partition can certainly be
reopened whatever the length of time when the partition took
place. In such a case it is the duty of the Court to protect and
safeguard the interests of the minors and the onus of proof
that the partition was just and fair is on the party supporting
the partition.
(4) Where there is a partition of immovable and moveable
properties but the two transactions are distinct and separable
or have taken place at different times, if it is found that only
one of these transactions is unjust and unfair it is open to the
Court to maintain the transaction which is just and fair and to
reopen pen the partition that is unjust and unfair.
The facts of the present case, in our opinion, fall
squarely rely within propositions Nos. (3) and (4) indicated
above."
26. Further the Hon'ble Apex Court in the case of
CONTROLLER OF ESTATE DUTY VS KANTILAL
TRIKAMLAL reported in AIR 1976 SC 1935, wherein it
is held in para 18 as under:
".18. The proposition is trite that in an undivided Hindu family
coparceners have no predictable or defined shares but each
has an antecedent title in every parcel of property and is
jointly the owner and in enjoyment with the others. But surely
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it is well-established that at the very moment members decide
upon a partition eo instanti, a division in status takes place
whereupon the share of the demanding member gets
crystallised into a definite fraction and if there is division by
metes and bounds the allotment of properties vivifies and
specifies such shares in separate ownership. These two
processes or stages may often get telescoped when by
consensus the coparceners jointly divide the properties.
Unequal divisions of properties 'knowingly made may not spell
invalidity and mathematical equality may not be maintained
always in a partition while, ordinarily, substantial fairness in
division is shown. Granting these legal positions, the more
serious question which has been agitated before us is as to
whether a willing agitalt bona fide, arrangement whereby
substantially reduced share is taken by the descedent
consequentially vesting a proportionately larger estate in the
recipient is a disposition falling within Expln. 2 to S. 2(15) and
therefore 'property' within the substantive definition. In this
context we may have to read Ss. 9 and 27 for property taken
under a disposition made by the deceased may be deemed to
be a gift in favour of the accounting person in the
circumstances mentioned in Section 9. Similarly, Section 27
also tracks down certain dispositions made by deceased
persons in favour of relatives by treating them as 'gifts.' The
basic concept of disposition looms important in such
circumstances."
27. Hon'ble apex Court held that it is trite law that
in an undivided Hindu family coparceners have no
predictable or defined shares but each has an antecedent
title in every parcel of property and is jointly the owner
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and in enjoyment with the others. But surely it is well-
established that at the very moment members decide
upon a partition eo instanti, a division in status takes place
whereupon the share of the demanding members gets
crystallised into a definite fraction and if there is division
by metes and bounds the allotment of properties vivifies
and specifies such shares in separate ownership. These
two processes or stages may often get telescoped when by
consensus the coparceners jointly divide the properties.
Unequal divisions of properties knowingly made may not
spell invalidity and mathematical equality may not be
maintained always in a partition while, ordinarily,
substantial fairness in division is shown. Granting these
legal positions, the more serious question which has been
agitated before us is as to whether there was a prior
partition or not. As the P.W.1 clearly admitted upon the
partition effected between the Shankar Sastry. In view of
the same, further it is not the case of the plaintiff that the
partition effected in the year 1973 was unequal and
further plaintiff has not filed the suit for reopening for
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partition. The trial court without considering these
admission of P.W.1 merely recorded the findings that the
defendants are failed to prove oral partition in the 1970
and the same was reduced into writing in the year 1973.
The trial court has failed to considered the admission of
the P.W.1 in the evidence. Further as per the section 58 of
Evidence Act, the fact admitted did not be proved,
admittedly in the instant case as observed above P.W.1
admitted that there was partition during the life time of
Shankar Sastry and properties were allotted to the share
of respective parties and further plaintiffs also admitted
that some of the properties fallen to the share of plaintiff
No.4 he has alienated the properties fallen to his share.
Thus, trial Court has committed an error in recording the
finding that the defendant Nos.5 and 6 were failed to
prove the prior partition. Thus, in view of the above, we
answer point No.2 in the affirmative.
28. POINT No.3: It is the case of the defendant
No.7 and defendant No.7 after verifying the records found
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that the said properties were acquired by the defendant
No.1 under the oral partition and thereafter, it was
reduced into writing as per Ex.D.1 and the name of
defendant No.1 was appearing in the revenue records.
After verification, defendant No.7 had purchased item
Nos.13 and 14 of suit schedule properties. Defendant No.7
was examined as D.W.1 and he had deposed that after
verifying the revenue records, he had purchased the said
properties, but plaintiffs were not seriously disputed
verification of the document by the defendant No.7. The
defendant No.1 sold the property in favour of defendant
No.7 under registered sale deed as per Exs.D.4 to 7. Thus,
defendant No.7 has proved that he is a bonafide
purchaser. In view of the above discussion, we answer the
point No.3 in the affirmative.
29. POINT NO.4: As we already recorded finding
on point Nos.1 to 3 against the plaintiff. The trial court has
committed an error in not properly appreciating the
evidence of P.W.1 and the records produced by the
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defendants i.e. revenue records, the order of land tribunal
and also the registered sale deed. Thus, the judgment and
decree passed by the trial Court is arbitrary and
erroneous. Hence, same is liable to be set aside. In view of
the above discussion, we answer point No.4 in the
affirmative.
30. POINT No.5: We proceed to pass the
following:
ORDER
i. The appeal is allowed.
ii. The judgment and decree dated 23.09.2017 passed
in O.S.No.149/2012 by the I Additional Senior
Civil Judge, Ballari, is set-aside. Consequently,
suit of the plaintiff is dismissed.
iii. No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
MBS para 1 to 17
