Sri Raju Devadiga vs Sri Anni Devadiga
2024 Latest Caselaw 15902 Kant

Karnataka High Court

Sri Raju Devadiga vs Sri Anni Devadiga on 5 July, 2024

Author: H.P. Sandesh

Bench: H.P. Sandesh

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 5TH DAY OF JULY, 2024

                          BEFORE

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

                 R.S.A.NO.1800/2018 (PAR)

BETWEEN:

1.     SRI RAJU DEVADIGA,
       AGED ABOUT 62 YEARS,
       S/O GOPA @ GOPU DEVADIGA,
       R/AT GANADAKOTTIGE HOUSE,
       KANIYOOR VILLAGE AND POST,
       BELATHANGADY TALUK,
       DAKSHINA KANNADA-574211.                 ... APPELLANT

             (BY SRI PRASANNA V.R., ADVOCATE)

AND:

1.     SRI ANNI DEVADIGA,
       AGED ABOUT 59 YEARS,
       S/O GOPA @ GOPU DEVADIGA,
       R/AT GANADAKOTTIGE HOUSE,
       KANIYOOR VILLAGE AND POST,
       BELATHANGADY TALUK,
       DAKSHINA KANNADA-574211.             ... RESPONDENT

               (BY SRI ABHINAV R., ADVOCATE)

     THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, 1908
AGAINST THE JUDGEMENT AND DECREE DATED 26.06.2018
PASSED IN R.A.NO.2/2018 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND JMFC, BELTHANGADY, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE
DATED 30.10.2017 PASSED IN O.S.NO.35/2011 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE AND JMFC, BELTHANGADY.
                                   2



    THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON   28.06.2024, THIS  DAY  THE   COURT
PRONOUNCED THE FOLLOWING:

                          JUDGMENT

This second appeal is filed against the concurrent finding of

the First Appellate Court dated 26.06.2018 passed in

R.A.No.2/2018, granting the relief of partition.

2. The factual matrix of the case of the plaintiff before

the Trial Court is that the suit schedule properties were granted

in favour of his father by the Land Tribunal and that there was a

panchayath held between the plaintiff and the defendant and

both the parties tried to divide the plaint schedule properties. It

is also the contention of the plaintiff that the defendant refused

to come forward for division of plaint schedule property. On the

other hand, it is the contention of the defendant that there was a

oral partition between the plaintiff and the defendant and in

terms of the said panchayath, he has paid an amount of

Rs.23,000/- in cash and also he is ready to pay the remaining

balance amount of Rs.47,000/- to the plaintiff. The Trial Court

having considered the pleadings of the parties, framed the issues

and also re-casted the issues, which are as follows:

1. Whether the plaintiff proves that suit properties are granted in the name of their father by the Land Tribunal?

4. Whether the plaintiff is entitled for the relief as sought in the suit?

Recasted issues

2. Whether the plaintiff proves that a panchayathike held between plaintiff and defendant and both parties tried to divide the plaint schedule properties?

3. Whether the plaintiff further proves that the defendant refused to come forward for division of plaint schedule properties?

4. Whether the defendant proves the oral partition between plaintiff and defendant?

5. Whether the defendant proves that as per the terms of panchayathike, he has paid Rs.23,000/- in cash and he is ready to pay the remaining balance of Rs.47,000/- to the plaintiff?

6. Whether the plaintiff is entitled for half share by way of partition and separate possession by metes and bounds?

7. To what order or decree?

3. The Trial Court gave an opportunity to the parties to

substantiate their contention and the plaintiff examined himself

as P.W.1 and got marked the documents at Exs.P.1 to 6. On the

other hand, the defendant examined himself as D.W.1 and got

marked the document at Ex.D.1 and also examined three

witnesses as D.W.2 to D.W.4 to prove the document of Ex.D.1.

The Trial Court having considered the material available on

record, answered issue Nos.1 and 4 in the affirmative and re-

casted issues Nos.2 and 3 in the affirmative and answered issue

Nos.4 and 5 in the negative and not accepted the contention of

the defendant and granted the relief of partition and separate

possession to the plaintiff.

4. Being aggrieved by the judgment and decree of the

Trial Court, an appeal is filed in R.A.No.2/2018. The First

Appellate Court having considered the grounds urged in the

appeal memo and also on re-appreciation of the evidence,

formulated the points whether the defendant has proved that

division of properties was culminated between the plaintiff and

the defendant by virtue of panchayathige dated 26.10.2008? and

whether the judgment of the Trial Court requires interference?

The First Appellate Court having considered the material on

record, answered both the points in the negative and confirmed

the judgment of the Trial Court and dismissed the appeal.

5. Being aggrieved by the concurrent finding of the First

Appellate Court, the present second appeal is filed before this

Court.

6. The main contention of the learned counsel for the

appellant/defendant before this Court is that both the Courts

failed to consider oral partition held between the plaintiff and the

defendant and though satisfactorily proved the same by placing

the material on record, ought not to have come to the conclusion

that the defendant failed to prove the oral partition. The learned

counsel contend that both the Courts failed to appreciate the fact

that on receiving an amount of Rs.23,000/-, the respondent

herein could not have filed a suit against the appellant and the

appellant was always ready to pay the balance amount, but the

respondent refused to take the balance amount. The said fact is

evident from the pleadings and the evidence of the witnesses

and inspite of it, the finding given by both the Courts that there

was no partition is against the material on record and it clearly

discloses perversity. It is also contended that both the Courts

failed to consider both oral and documentary evidence placed on

record and hence it requires interference of this Court.

7. This Court having considered the grounds which

have been urged in the appeal memo at the time of admission,

framed the following substantial question of law:

"Having held that there was an oral agreement for partition and as per the terms of the said agreement on 26.10.2008, the plaintiff received Rs.23,000/- under Ex.D.1, whether the First Appellate Court was justified in decreeing the suit holding that there was no division of the properties?"

8. The learned counsel for the appellant in his oral

submission would contend that the material discloses that

panchayath was held and in the said panchayath, a decision was

taken that the defendant has to pay the difference amount and

out of that, part payment of Rs.23,000/- was paid. Though the

plaintiff denies the same, the document of Ex.D.1 is clear with

regard to payment of Rs.23,000/- and the witnesses have also

spoken about the payment. The evidence of D.W.2 and D.W.3 is

clear with regard to the payment and proved the document of

Ex.D.1. The finding given by the Trial Court in paragraph No.13

is not correct and the First Appellate Court in paragraph No.19

committed an error in accepting the evidence of the plaintiff.

The learned counsel would contend that the defence has not

been denied and the same is cultivated property and even

constructed the house and residing separately. The learned

counsel contend that all these materials have not been

considered properly by both the Courts and hence interference is

necessary. The learned counsel contend that the appellant is

ready to deposit the balance amount payable in terms of the

panchayath and hence this Court has to consider the material on

record.

9. Per contra, the learned counsel for the

respondent/plaintiff would contend that paragraph No.2(c) of the

plaint is clear that the property belongs to the family. Though

there was a panchayath held, the defendant did not come

forward to honour the terms of panchayath. The learned counsel

contend that even though the document of Ex.D.1 is marked,

there is no discussion with regard to the partition and date of

partition. The cross-examination of P.W.1 and D.W.1 is also

discussed by both the Courts. The document of Ex.D.1 is not a

deed of partition and there was no any division under the said

document of Ex.D.1. The evidence of D.W.2 is very clear that

the partition has not attained its finality. The learned counsel in

support of his contention brought to the notice of this Court,

Section 6(5) of the Hindu Succession Act and contend that

unless partition is registered, there cannot be any conclusion of

partition.

10. The learned counsel for the respondent in support of

his argument relied upon several judgments by furnishing list of

citations with regard to the plea of oral partition, proof of oral

partition and if oral partition not acted upon by the parties.

Even unregistered family settlement admissible in evidence only

if agreement is confirmed with approval of all family members

and there is no particulars with regard to date or month of the

partition. The learned counsel also relied upon Section 6(5) of

the Hindu Succession Act i.e., plea of oral partition can be

accepted only in exceptional ceases, if it is supported by public

documents and no such public documents are available before

the Court.

11. The learned counsel relied upon the Division Bench

judgment of the Delhi High Court in the case of LALA OM

PRAKASH v. HARI RAM reported in 2005 (79) DRJ 453 and

brought to the notice of this Court paragraph No.8, wherein

discussion was made that when an oral agreement is pleaded,

the parties must plead so precisely in the pleadings with regard

to the year, month and date of such an oral agreement, at least

year and month ought to have been pleaded with exactitude in

the peculiar facts and circumstances.

12. The learned counsel also relied upon the judgment of

the Delhi High Court in the case of SHRI VIRENDER KUMAR

GARG v. SHRI RAVINDER KUMAR GARG reported in 2013

SCC Online Del 4661 and brought to the notice of this Court

paragraph No.15, wherein discussion was made that the

pleadings are bereft of any particulars as to how and when the

oral partition took place after 2000, who were parties to it, and

even the approximate month and year when it occurred. Surely

for one who claimed to be a party to the agreement, furnishing

those details could not have presented an insurmountable

difficulty. No supporting material is forthcoming in that regard.

13. The learned counsel also relied upon the judgment of

the Apex Court in the case of PRASANTA KUMAR SAHOO AND

OTHERS v. CHARULATA SAHU AND OTHERS reported in

(2023) 9 SCC 641 and brought to the notice of this Court

paragraph No.77, wherein discussion was made with regard to

the Apex Court judgment in the case of VINEETA SHARMA v.

RAKESH SHARMA reported in (2020) 9 SCC 1 and brought to

the notice of this Court paragraph Nos.137.4 and 137.5 of the

Apex Court judgment, wherein an observation is made that

however, in exceptional cases where plea of oral partition is

supported by public documents and partition is finally evinced in

the same manner as if it had been effected by a decree of a

Court, it may be accepted. A plea of partition based on oral

evidence alone cannot be accepted and to be rejected outrightly.

14. In reply to the arguments of the learned counsel for

the respondent, the learned counsel for the appellant would

contend that Ex.D.1 receipt does not disclose any material with

regard to the receipt of the said amount. The plaintiff did not

come forward to receive the balance amount inspite of receiving

the part payment and the said aspect has not been considered

by both the Courts.

15. Having considered the oral submission and the

principles laid down in the judgments referred supra, it is not in

dispute that if any defence is taken that there was an oral

agreement, the same has to be pleaded and proved and there

must be a specific pleading also. There is no dispute with regard

to the fact that Section 6 of the Hindu succession Act is amended

and the same came into effect in view of the Central enactment.

Keeping in view the provisions as well as the principles laid down

in the judgments referred above and the material on record in

view of the framing of substantial questions of law, this Court

has to analyze the material on record.

16. Having considered the material on record, partition

discussion was taken place and there was a oral agreement and

in terms of oral agreement on 26.10.2008, the plaintiff has

received an amount of Rs.23,000/- under Ex.D.1. Now the

question before this Court is that inspite of it, whether the First

Appellate Court was justified in decreeing the suit holding that

there was no division of properties. There is no dispute between

the parties that the property is granted in favour of their father

Sri Gopa @ Gopu Devadiga and also there is no dispute with

regard to the relationship between the parties. It is important to

note that in paragraph No.2(b) of the plaint, it is categorically

pleaded that the grant was made in favour of the father by the

Land Tribunal. It is also not in dispute that after the death of

the father, the family members name has been entered in the

revenue records. It is not in dispute that in paragraph No.2(c)

of the plaint, which was brought to the notice of this Court by

the learned counsel for the respondent, specific pleading was

made that the relatives and well-wishers of the plaintiff and the

defendant made panchayath and tried to divide the plaint

schedule property. The defendant refused to act in terms of the

panchayath and refused to come forward for division of the

plaint schedule property. The very pleading is clear that there

was a panchayath and the plaintiff also admits the same in the

very same paragraph. The plaintiff says that an attempt was

made to settle the issues between the parties, but the defendant

refused to act in terms of panchayath and a specific pleading is

made. It is important to note that the defendant in paragraph

No.3 of the written statement pleaded about the panchayath and

the panchayatdars comes to the terms. The defendant as per

the terms of panchayath, has paid an amount of Rs.23,000/- in

cash and the defendant has to pay a further sum of Rs.47,000/-

to the plaintiff. It is specifically pleaded by the plaintiff that the

payment is to be made to equalize the share, but the defendant

contend that he was always ready to pay the remaining amount,

but with a malafide intention of making unlawful gain, the

plaintiff is not ready to receive the balance amount and also not

coming forward for execution of registered deed of partition.

17. Having considered both the pleadings, it is very clear

that there was a panchayath and P.W.1 in his cross-examination

categorically admits that there was a oral partition talks between

the parties. He also categorically admits that eight people have

attended the said panchayath and also admits that in the said

panchayath, to equalize the partition, an amount of Rs.75,000/-

is to be paid by the defendant to the plaintiff. But his claim is

that no decision was taken in the said panchayath and even he

had gone to the extent of denying the receipt of Rs.23,000/- as

part payment. It is suggested that he did not come forward to

receive an amount of Rs.47,000/- and the same was denied.

P.W.1 admits with regard to the clearance of loan in the State

Bank of India by both of them.

18. On the other hand, it is the contention of the

defendant that payment of Rs.23,000/- was made and document

of Ex.D.1 was produced. In the cross-examination he admits

that grant was made in favour of his father from the Land

Tribunal and his mother also passed away. He admits that both

the plaintiff and the defendant are having equal share. He

admits that in respect of the suit schedule property, no

arrangement is made and also admits that the properties are

jointly standing in the revenue records. He admits with regard

to apportionment of the properties and payment of amount as

per the terms. He also categorically admits that in terms of

panchayath, amount was payable within 15 months, but he

claims that he made part payment and also categorically admits

that the amount was payable to the plaintiff for the purpose of

construction of the house and the said settlement was made

seven years ago. It is important to note that he categorically

admits that he has not given any notice to the plaintiff to receive

the amount. When a question was put to him as to whether he

had made arrangement of panchayath to pay the balance

amount, he gives the answer that no need of making any such

panchayath. He admits that when the plaintiff did not come

forward to receive the amount, he did not request the

panchayatdars to tell the plaintiff to receive the amount. He

admits that he did not give any notice that he is ready to pay the

balance amount in terms of panchayath and he did not make any

efforts to pay the amount by way of DD or cheque.

19. All these materials were taken note of by the Trial

Court and the First Appellate Court. Though an observation is

made by both the Courts that no such panchayath was held, the

same is erroneous, since the material is very clear that

panchayath was held and both of them in the plaint as well as

written statement admitted that panchayath was held. It is

important to note that the plaintiff though denies receipt of

Rs.23,000/-, the document of Ex.D.1 is very clear with regard to

the payment of Rs.23,000/- and witnesses D.W.2 and D.W.3

have categorically deposed for having made the payment of

Rs.23,000/-. It is important to note that there is no actual

division of the property, since the defendant categorically says

that when the panchayath was made, they did not see any

document and also the property was not measured and also not

prepared any sketch, but categorically admits that when they

conducted the panchayath, it did not take place for division. The

defendant says that the plaintiff insisted the presence of his

maternal uncle Annappa Devadiga for payment of second

installment and the same did not take place for division of

properties. Hence, it is clear that though panchayath was held,

there was no division in the family property. But the fact is that

an amount of Rs.23,000/- was paid to the plaintiff has been

proved by examining D.W.2 and D.W.3 and also by producing

the document Ex.D.1.

20. Having considered the very admission on the part of

D.W.1, though he made payment of Rs.23,000/-, he did not take

any steps either to give notice to the plaintiff or requesting the

panchayath members to tell the plaintiff to receive the balance

amount in terms of panchayath. It is important to note that he

did not give any notice that he is ready to make the payment

and also he did not make any efforts to pay the amount by way

of DD and cheque by tendering the same to the plaintiff. It is

clear that though panchayath was held, the terms of panchayath

was not completed and not acted upon. It is important to note

that D.W.1 admitted that he had agreed to pay the amount for

construction of the house to the plaintiff. It is important to note

that according to panchayath, it was held in the year 2008, but

suit is filed in the year 2011. It is important to note that time

was fixed for payment of balance amount. I have already

pointed out that the plaintiff categorically pleaded in paragraph

No.2(c) of the plaint with regard to panchayath. The Trial Court

comes to an erroneous conclusion that the defendant has not

proved the payment of Rs.23,000/- in cash, but in order to prove

the readiness is concerned, the defendant did not prove the

factum that he is having money and tendered balance amount.

The finding of the Trial Court is that there was an oral partition

talk and the parties have pleaded the same, but comes to the

conclusion that there was no any oral partition. The fact is that

discussion was made, but same is not completed having

considered the material on record.

21. The First Appellate Court formulated the point that

whether the defendant has proved the division of properties was

culminated between the plaintiff and the defendant by virtue of

panchayathige dated 26.10.2008? There is no dispute that

talks were held on 26.10.2008 and part payment was also made.

With regard to the remaining terms of the partition, the parties

have not acted upon. The allegation against the plaintiff is that

he did not come forward to receive the amount. When time

stipulation is made against the defendant to pay the balance

amount, it is the bounden duty of the defendant to tender the

amount and if the plaintiff has not accepted, he would have

made all his efforts. Both the Courts have taken note of the fact

that the defendant has not taken any steps to pay the amount

and hence I do not find any error committed by both the Courts

in coming to a conclusion that the defendant has not made any

attempt. The very admission on the part of D.W.1 is clear that

he did not tender the amount by way of DD or cheque and he

did not request the panchayatdars, who were present at the time

of partition talk between them to request the plaintiff to receive

the amount and though he was part of talks of partition, he did

not comply it and also not acted upon. To prove that the parties

have acted upon in terms of panchayath, no documents are

produced before the Court. The relevant judgment applicable to

the case on hand is the recent judgment of the Apex Court in the

case of Vineeta Sharma (supra). The learned counsel for the

respondent also brought to the notice of this Court the judgment

of the Apex Court in the case of Prasanta Kumar Sahoo

(supra).

22. The First Appellate Court also taken note of the fact

that oral partition is an exception and if it is evident from any

documentary proof that already partition was taken place, then

the same can be considered or otherwise under Section 6(5) of

the Hindu Succession Act, oral partition cannot be accepted. In

the case on hand, only talks were held and in terms of the said

panchayath talks, the parties have not acted upon. When such

being the case, the judgment of the Apex Court in the case of

Vineeta Sharma (supra) is applicable, since plea of partition

based on oral evidence alone cannot be accepted and to be

rejected out rightly. In the case on hand, when the parties have

not acted upon in terms of the panchayath, oral partition cannot

be accepted. Both the Courts have not accepted the same, since

the terms of panchayath has not been acted upon. When such

being the case, even though this Court has framed the

substantial question of law that having held that there was an

oral agreement for partition and as per the terms of the said

agreement on 26.10.2008, part payment of Rs.23,000/- was

made in terms of Ex.P.1, the First Appellate Court was justified

in decreeing the suit holding that there was no division of

properties by metes and bounds, since the defendant has not

acted upon in terms of the compromise. If the defendant had

paid the balance amount within time as agreed, then this Court

would have found fault in considering the case by the Trial Court

as well as the First Appellate Court and mere talks held between

the parties and part payment itself cannot be a ground to come

to the conclusion that actually there was a division. Nothing is

placed on record to show that there was an actual division.

When such being the case, I do not find any error committed by

both the Courts in granting the relief of partition in favour of the

plaintiff and hence the substantial question of law is answered

accordingly. The appellant fails to prove the factum of division

in the family and made the payment in terms of division and

when he failed to prove his readiness and comply with the

panchayath terms and conditions, he is not entitled for the relief

at the hands of the Court.

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

following:

ORDER

(i) The second appeal is dismissed.

(ii) The amount in deposit made by the appellant is directed to be refunded to the appellant in view of the final decision of this Court, on proper identification.

Sd/-

JUDGE MD