Karnataka High Court
Mahadev S/O.Nemani Kanabarkar vs Renuka @ Yallu W/O Ganapat Taralkar on 30 July, 2024
Author: B.M. Shyam Prasad
Bench: B.M.Shyam Prasad
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RFA No. 4018 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 4018 OF 2013 (PAR/POS)
BETWEEN:
SHRI. MAHADEV S/O. NEMANI KANABARKAR
AGE: 48 YEARS, OCC: AGRICULTURE
R/O: HONAGA-591 113
TQ. AND DIST: BELGAUM.
...APPELLANT
(BY SRI. SHEKHARGOUDA M. NAGANURI, ADVOCATE)
AND:
1. SMT. RENUKA @ YALLU
W/O. GANAPAT TARALKAR
AGE: 38 YEARS, OCC: HOUSEHOLD
R/O: NEAR II BUS-STOP, GOKAK ROAD,
KANABARGI - 590 015,
Digitally
signed by
YASHAVANT TALUKA AND BELGAUM.
NARAYANKAR
Location:
HIGH COURT
OF
KARNATAKA 2. SMT. SULABHA @ KALPANA
W/O. KALLAPPA LAD
AGE: 33 YEARS, OCC: HOUSEHOLD
R/O: HONAGA-591 113
TQ. AND DIST: BELGAUM.
3. SHRI. GUNDU
S/O. KHEMANNA KANABARKAR
AGE: 65 YEARS, OCC: AGRICULTURE
R/O: HONAGA-591 113
TQ. AND DIST: BELGAUM.
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RFA No. 4018 of 2013
3A. SHRI. MALLAPPA S/O. GUNDU KANABARKAR,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: BALABHEEMA GALLI, HONAGA VILLAGE,
TAL. AND DIST: BELAGAVI-591113.
4. SHRI. MARUTI S/O. KHEMANNA KANABARKAR
AGE: 63 YEARS, OCC:AGRICULTURE
R/O: HONAGA-591 113
TQ. AND DIST: BELGAUM.
5. SHRI. PUNDALIK YALLAPPA HUNDRE
AGE: 58 YEARS,
OCC:AGRICULTURE AND SERVICE,
R/O: HONAGA-591 113
TQ. AND DIST: BELGAUM.
6. SHRI. BHARAMA BHAIRU KANABARKAR
AGE:66 YEARS, OCC:AGRICULTURE
R/O: HONAGA-591 113
TQ. AND DIST: BELGAUM.
6A. SMT. SUMAN W/O. BHARAMA KANABARKAR,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: BALABHEEMA GALLI, HONAGA VILLAGE,
TAL. AND DIST: BELAGAVI-591113.
6B. SMT. SARITA W/O. BHAIRU KILLEKAR,
AGE: 34 YEARS, OCC: HOUSEHOLD,
R/O: SHETTY GALLI, BELGAUM-590001.
6C. SHRI. NAGESH BHARAMA KANABARKAR,
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O: BALABHEEMA GALLI, HONAGA VILLAGE,
TAL. AND DIST: BELAGAVI-591113.
6C1. SMT. LAXMI
W/O. NAGESH KANABARKAR,
AGE: 34 YEARS, OCC: HOUSEHOLD WORK,
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RFA No. 4018 of 2013
R/O: BALABHEEMA GALLI,
HONAGA VILLAGE,
TAL. AND DIST: BELAGAVI-591113.
6C2. SHRI. VINAYAK S/O. NAGESH KANABARKAR,
AGE: 14 YEARS, OCC: STUDENT,
R/O: BALABHEEMA GALLI, HONAGA VILLAGE,
TAL. AND DIST: BELAGAVI-591113.
6C3. KUM. BHAKTI D/O. NAGESH KANABARKAR,
AGE: 12 YEARS, OCC: STUDENT,
R/O: BALABHEEMA GALLI, HONAGA VILLAGE,
TAL. AND DIST: BELAGAVI-591113.
RESPONDENT NOS. 6C2 AND 6C3 BEING MINORS,
THEY ARE REPRESENTED BY THEIR
MOTHER/NATURAL
GUARDIAN RESPONDENT NO.6C1.
6D. SMT. ASHWINI W/O. SANJAY MANDALIK,
AGE: 30 YEARS, OCC: HOUSEHOLD,
R/O: LAXMI GALLI, HINDALAGA-591108,
TAL. AND DIST: BELGAUM.
6E. SHRI. BHAIRU BHARAMA KANABARKAR,
AGE: 27 YEARS, OCC: AGRICULTURE,
R/O: BALABHEEMA GALLI, HONAGA VILLAGE,
TAL. AND DIST: BELAGAVI-591113.
SHRI. SOMANNA BHAIRU KANABARKAR
SINCE DECEASED BY HIS LRS.
7. SMT. LEELA W/O. SOMANNA KANABARKAR
AGE:50 YEARS, OCC:HOUSEHOLD
R/O: HONAGA-591 113
TQ. AND DIST: BELGAUM.
8. SHRI. JYOTIBA SOMANNA KANABARKAR
AGE:28 YEARS, OCC: AGRICULTURE,
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RFA No. 4018 of 2013
R/O:HONAGA-591 113
TQ. AND DIST: BELGAUM.
9. SHRI. SAGAR SOMANNA KANABARKAR
AGE:25 YEARS, OCC:AGRICULTURE
R/O: HONAGA-591 113
TQ. AND DIST: BELGAUM.
10. SMT. PRABHAVATI W/O. ARUN AWADANE
AGE:21 YEARS, OCC:HOUSEHOLD
R/O: BODKENATTI (HANDIGNUR)-591 143,
TQ. AND DIST: BELGAUM.
...RESPONDENTS
(BY SRI. ASHOK A. NAIK, ADV., FOR R1 AND R2;
SRI. RAM P. GHORPADE, ADV., FOR R6(A,B,D) AND R7 TO R10;
R3 AND R6(C) DECEASED;
NOTICE TO R3A, R4, R5, R6(E), R6C(1) SERVED AND
UNREPRESENTED)
THIS REGULAR FIRST APPEAL FILED UNDER SEC. 96
R/W. ORDER XLI RULE 1 OF CPC 1908, AGAINST THE
JUDGMENT AND DECREE DATED: 31.10.2012 PASSED IN
O.S.NO.117/2009 ON THE FILE OF THE II ADDL. SENIOR CIVIL
JUDGE, BELGAUM, DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, B.M.SHYAM PRASAD, J., DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
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RFA No. 4018 of 2013
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD)
This appeal is filed by the first defendant in
O.S.No.117/2009 on the file of the II-Additional Senior Civil
Judge, Belagavi [for short 'the civil Court]. The civil Court, by
the impugned judgment and decree dated 31.10.2012, has
decreed the first and second respondents' aforesaid suit for
partition. The civil Court's judgment and decree has decreed
that the appellant and the first and second respondents will
be together entitled to ½ share in the immovable properties
described at Sl.No.1 to 9 in the plaint schedule, and that the
appellant and the first and second respondent will be
entitled to 27½ Guntas and 21 Guntas 12 Annas
respectively in the properties described at Sl.No.10 and 11 of
the suit schedule.
2. The appellant and the first and second
respondents are brother and sisters. The third and the
fourth respondents are their cousins being the children of
their father's younger brother, Sri. Nemani Kanabarkar. The
other respondents are not related to these parties, but they
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are arrayed as parties to the present proceedings, as stated
by the learned counsel for the appellant, because their
names figure in the revenue records for some of the
properties that are described in the schedule appended to
the plaint. The appellant and the first and the second
respondents are not in conflict over the fact that [i] the suit
schedule properties [which are essentially agricultural lands]
are ancestral properties of Sri. Nemani Kanabarkar and his
brother, Sri. Kemani Kanabarkar, [ii] that there is a
partition between these two brothers, and [iii] that because
the lands have not been phodied [sub-divided] inter se the
extent owned by the brothers, the entire extent of the lands
in the corresponding survey numbers are mentioned in the
plaint.
3. The appellant has contested the suit denying the
first and second respondents' claim for a share in the suit
schedule properties and partition thereof by metes and
bounds essentially asserting that his father, Sri. Nemani
Kanabarkar, has transferred all interest in these properties
in his favour and that after the father's demise, his mother
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[who is now deceased] and his sisters [the first and second
respondents], for a consideration of Rs.50,000/- each, have
executed appropriate document relinquishing/transferring
all their interest in his favour, and hence, the revenue
entries are mutated in his favour exclusively in the year
2002. The civil Court, while considering Issues such as
whether the appellant proves that the respondents have
relinquished their shares in the suit schedule properties for
a consideration of Rs.50,000/-, has answered this Issue
against the appellant and consequentially decreed the suit.
4. The civil Court has examined two vital aspects of
the appellant's defence viz., that upon his father
relinquishing/transferring the properties in his favour, he
has mortgaged the same in favour of third parties and that
the first and second respondents, along with their mother,
have executed an affidavit acknowledging that they have no
interest in the properties. The civil Court, considering the
fact that the appellant to establish his case that he had
mortgaged the properties in his own rights has relied upon
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unregistered mortgages, has opined that such documents
cannot be looked into unless they are registered.
5. The civil Court, as regards the appellant's case
that the first and second respondents [along with their
mother] have executed an affidavit [Ex.D.6] relinquishing all
their interest in the suit schedule properties for
consideration, has opined that even this document is
unregistered and therefore, the appellant cannot rely upon
the same. This Court must observe that the appellant has
not placed on record the document purportedly executed by
his father relinquishing/transferring all interest in the suit
properties in his favour, but such document is now
produced along with an application under Order XLI Rule 27
of the Code of Civil Procedure, 1908 [for short, 'the CPC'].
6. Sri. Shekhargouda M Naganuri, the learned
counsel for the appellant, is heard both on the merits of the
application under Order XLI Rule 27 of CPC and for final
disposal of the appeal. Sri. Shekhargouda M Naganuri
submits that this Court may permit the appellant to produce
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the document executed by his father, Sri. Nemani
Kanabarkar in his favour as an additional document in this
appeal as that would demonstrate the appellant's case that
even as on the date of father's demise, he was in possession
of the subject properties as the absolute owner and
therefore, the sisters [the first and second respondents] with
the mother have executed Ex.D.6.
7. The application for production of additional
document is considered under Order XLI Rule 27(b) of CPC
to enable complete and effective adjudication of the
controversy, and one of us [Sri. Justice C.M. Joshi] who is
familiar with the vernacular [marathi] in which this
document is written, has gone through the same. This
document is allegedly executed by the father on 16.04.1999
stating he is executing this document transferring all
interest in the suit schedule properties in favour of the
appellant subject to he looking after him and his wife but
this document is also not registered, and Sri. Shekhargouda
M Naganuri cannot persuade us to accept that this
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document will be admissible in evidence notwithstanding the
fact that it is unregistered.
8. This Court, therefore, must consider the merits of
the appellant's case independent of this document and as
such, the point for consideration is:
Whether this Court must opine that the Civil
Court's opinion on the appellant's case, based on
mortgage agreements and Ex.D.6- affidavit filed
by the defendants with their mother, suffers from
any perversity justifying interference.
9. The document styled as "Consent Deed" allegedly
executed by the first and second respondent is admittedly
unregistered and the contents of this deed in its material
part reads two things: [i] the first and the second
respondents and their mother will have no objection for
transfer of the revenue entries for the subject land in favour
of the appellant; [ii] the appellant is providing for them and
they do not have any interest in the subject properties. The
civil Court, upon reading the terms of this document, in
effect has opined that it is a deed under which there is a
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partition and therefore, it is compulsorily required to be
registered under Section 17 of the Indian Registration Act,
1908. In the light of the terms of the document, this
conclusion is unexceptional.
10. Further, even if this document is to be seen, for
reasons of considering the appellant's case in its entirety, as
a record of partition, this Court must opine that it was
incumbent upon the appellant, upon whom under Issue
No.3 burden is cast to prove that the first and the second
respondents have relinquished/transferred their interest
upon receiving Rs.50,000/- each, to place necessary details
such as the date on which the parties met to discuss the
terms, the persons in whose presence such discussions were
held and the details of the payment of Rs.50,000/- paid to
these respondents. If these materials were brought on
record, there could be some justification in the appellant
contending that there was an oral partition and Ex.D.6 is a
record thereof (as a memorandum of such partition). The
appellant has not placed on record any material in this
regard. In the light of the above, the point for consideration
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is answered against the appellant confirming the Civil
Court's judgment and decree.
The appeal stands rejected and no costs.
Sd/-
(B.M.SHYAM PRASAD)
JUDGE
Sd/-
(C M JOSHI)
JUDGE
YAN
