2. The factual matrix of the case of the plaintiffs before
they are having half share in the suit schedule properties. Thus,
entitled for the relief of partition. The defendants appeared and
partition deed was also came into existence on 21.12.2004. The
defendants contend that the Court fee paid is insufficient.
granted in his favour. The plaintiffs would contend that
3. The Trial Court having considered the pleadings of
4. Whether suit is properly valued and Court fee
paid is sufficient?
5. Whether defendant proves that land
Sy.No.128/5 is his self acquired property?
6. Whether plaintiffs are entitled for the relief
sought by them?
7. What order or decree?
Additional Issue No.1
Whether defendant father proves that there
was a registered partition deed dated
21.12.2004 between himself and father of the
plaintiff?
4. The Trial Court allowed the parties to lead their
evidence to substantiate their contention. Accordingly the
plaintiffs examined two witnesses as PW1 and PW2 and got
marked the documents at Ex.P1 to P22. On the other hand,
defendants examined 4 witnesses as DW1 to DW4 and got
marked the documents at Ex.D1 to D11. The Trial Court having
appreciated both oral and documentary evidence placed on
record comes to the conclusion that there was no partition of the
year 1972 and suit item No.5 is also a joint family property of
plaintiffs and defendant Nos.1 to 5 and the said grant is for the
benefit of all the joint family members of the plaintiffs and
defendants and the same is not a self-acquired property as
contented by defendant No.1. The Trial Court did not accept the
contention of the defendant that earlier there was a partition on
03.11.1972 and the same was not having any legal sanctity for
want of registration and alleged registered partition in the family
of plaintiffs and defendants dated 21.12.2004 is also not binding
on the plaintiffs which was created without consent and
signature of the plaintiffs subsequent to cut-off date 20.12.2004
as per Section 6 of the Hindu Succession Amendment Act, 2005.
5. The Trial Court having assessed both oral and
documental evidence placed on record partly decreed the suit
granting 1/3rd share plus 1/8th share in the 1/3rd share of his
father by name of Sri Buddappa under notional partition whereas
his brother Sri Anjinappa (defendant No.1) is entitled to get
equal share as that of Sri Muniyappa whereas the three
daughters of Sri Buddappa by name Smt. Lagmakka, Smt.
Anjinamma and Smt. Muttakka are entitled to get 1/8th share in
1/3rd share of their father and Trial Court also observed that
three daughters of Sri Buddappa are not impleaded as parties in
the suit and hence, directed to implead them as respondents in
the FDP proceedings. The Trial Court also held that the alleged
partition deed dated 21.12.2004 and alleged sale deed of suit
schedule Item No.4 property in respect of Sy.No.119 measuring
1 acre 19 guntas of Rajaghatta village executed by defendant
Nos.1 to 5 in favour of defendant No.6 dated 25.04.2005 are
declared as null and void and not binding on the plaintiffs'
undivided share, but such sale deed of Item No.4 property is
binding only on the undivided share of defendant Nos.1 to 5
which shall be enjoyed by defendant No.6 as a bona fide
purchaser. The Trial Court also held that the share of the
plaintiffs in Item Nos.1 to 6 properties can be divided by meets
and bounds by appointing Tahsildar, Doddaballapur as Court
Commissioner whereas the share of the plaintiffs in Item Nos.7
and 8 house properties can be divided by appointing any Civil
Engineer or any Advocate as Court Commissioner in accordance
with law. The said judgment of Trial Court is questioned before
the First Appellate Court in R.A.No.10104/2019.
6. The First Appellate Court having considered the
grounds which have been urged in the appeal memo, formulated
the following Points for consideration:
1. Whether the impugned judgment and
preliminary Decree in O.S.No.85/2008 dated
19.07.2019 on the file of Senior Civil Judge
and JMFC, Doddaballapur is opposed to law,
facts and circumstances of the case and
interference of this Court is necessary?
2. What Order?
7. The First Appellate Court having reassessed both oral
and documentary evidence placed on record comes to the
conclusion that judgment and decree of the Trial Court is
opposed to law, facts and circumstances of the case and it
requires interference and answered the point as affirmative in
coming to the conclusion that already there was a partition
between the brothers as on 03.11.1972 and they had
independently dealt with their shares allotted in 'A' and 'B'
schedule of the partition deed. It is observed that defendant
No.1 and his family members have also alienated certain
properties to which plaintiffs or their father are not parties and
plaintiffs' father - Muniyappa had also sold the properties to
various persons under registered sale deeds particularly,
document of Ex.D5 is the registered sale deed dated 03.07.1973
which came to be executed by plaintiffs' father Muniyappa in
favour of Chikkashamanna in respect of Khaneshumari No.237 of
Rajaghatta Village. Ex.D6 is sale deed dated 03.05.1973 in
respect of land measuring 1 acre 12 guntas in Sy.No.118/P of
Rajaghatta Village executed in favour of Rajanna son of
Shivarudrappa. It is also observed that above properties are not
included in the plaint schedule and there are no pleadings or
explanations offered by the plaintiffs.
8. The First Appellate Court also taken note of Ex.D10
sale deed dated 25.04.2005 executed by defendant Nos.1 to 5 in
favour of defendant No.6 in which plaintiffs' father Muniyappa
has affixed his signature as attesting witness. The recitals in the
sale deed show that by virtue of partition deed dated
21.12.2004, defendant No.1 got Item No.4 property measuring 1
acre 19 guntas in Sy.No.119 of Rajaghatta Village to his share.
The fact that plaintiffs' father had attested his signature to the
sale deed which clearly reflects that the above property was
fallen to the share of defendant No.1. The First Appellate Court
also taken note of the fact that as far as the registered partition
deed dated 21.12.2004, defendants Nos.1 to 5 have explained
that Panchayath Palupatti dated 03.11.1972 was not registered
and therefore, the subsequent partition deed was registered. By
that time, plaintiffs' father had alienated certain properties and
in the above partition deed only Item Nos.1 and 2 are shown in
the 'A' schedule. The recitals in the said partition deed show that
the parties have earlier made out separate katha in their names
by virtue of mutation proceedings in M.R.No.31/1997-98. The
said recitals are suffice to show that even before the registered
partition deed, the katha of the properties was made out in their
respective names by the brothers and they have independently
dealt with their shares. The First Appellate Court also taken note
of the fact with regard to the subsequent partition deed is
concerned. An attempt was made while cross examining DW1
that plaintiffs' father had sustained burn injuries and he was
mentally and physically incapable of giving consent for partition.
But Trial Court committed an error in accepting the case of
plaintiffs and granted the relief of partition ignoring the earlier
partition wherein parties have acted upon. Thus, the First
Appellate Court considering all these materials, reversed the
judgment of the Trial Court.
9. Being aggrieved by the reversal of the judgment by
the First Appellate Court, the plaintiffs have preferred this
second appeal before this Court.
10. The main contention of the learned counsel for the
appellants before this Court is that First Appellate Court
committed an error in coming to the conclusion that father of the
appellants and respondent No.1 had divided the family
properties under the unregistered Palupatti dated 03.11.1972 at
Ex.D11 and several properties fallen to the share of the
appellants' father. The counsel also would vehemently contend
that the First Appellate Court committed an error in wrongly
holding that appellants' father sold the properties considering
the unregistered Palupatti and the said finding is unsustainable.
The very reasoning of the First Appellate Court that there was a
partition but the same is erroneous. Defendant Nos.1 to 5 have
not disputed about the nature of suit properties and acquisition
of properties through re-granted proceedings in favour of the
plaintiffs' father and defendant No.1 in Case No. HOA CR
No.68/1996-97. The Tahsildar has re-granted the suit properties
jointly in favour of the plaintiffs' father and defendant No.1.
Thereafter, all the revenue records stand transferred in the
name of plaintiffs' father and defendant No.1 in
M.R.No.31/1997-98. But the First Appellate Court while giving
the finding, in the absence of any record, has erred in holding
that joint family properties were partitioned. Defendant No.1
clearly admitted in the cross examination that suit schedule
properties are granted to him and his brother. But the First
Appellate Court ignored the said evidence on record and
committed an error in not granting relief in respect of granted
land and erroneously reversed the judgment of the Trial Court.
The counsel also would vehemently contend that the First
Appellate Court also committed an error in considering the
subsequent partition deed and not justified in dismissing the suit
of the plaintiffs in the absence of any material to show that suit
schedule properties were already partitioned.
11. This Court admitted the second appeal considering
the grounds urged in appeal memo on 01.06.2023 and framed
the following substantial question of law:
1. Whether the First Appellate Court justified in
reversing the judgment and decree of the trial
Court?
2. Whether the First Appellate Court justified in
rejecting the relief of partition in the absence
of any material to show that the suit schedule
properties were already partitioned in the year
1972?
12. The learned counsel appearing for the appellants in
this arguments would vehemently contend that First Appellate
Court fails to take note of the fact that in Sy.No.34 to the extent
of 17 guntas and in Sy.No.24 to the extent of 16 guntas, in total,
33 guntas was allotted in favour of the plaintiffs' father vide
partition document dated 21.12.2004. The counsel also brought
to notice of this Court that the property which was allotted in
favour of the plaintiffs' father is shown as 'A' schedule and
property which was allotted in favour of the defendants is shown
as 'B' schedule property. Sy.No.48 to the extent of 1 acre 8
guntas and Sy.No.119 to the extent of 1 acre 19 guntas and in
Sy.No.239 to the extent of 2 3/4th guntas and Sy.No.34 to the
extent of 17 guntas were allotted in favour of the defendant. The
counsel also would vehemently contend that Ex.D11 is an
unregistered partition document. The counsel also vehemently
contend that when the unregistered document is inadmissible,
ought not to have relied upon the same. The counsel would
vehemently contend that re-grant was made jointly to the
plaintiffs' father and defendant and the same was also not taken
note of by the First Appellate Court. The counsel also would
vehemently contend that property was jointly sold by the
plaintiffs' father and defendant in 2001. That means, all of them
were together and there was no any partition. If partition was
took place in the year 1972, no need to execute the sale deed
jointly in 2001. All these materials were not taken note of by the
First Appellate Court.
13. The counsel for the appellants also brought to notice
of this Court to the admission of the part of DW2 and DW3 in the
cross-examination and contend that the Trial Court evaluated
both oral and documentary evidence rightly and decreed the
suit. But First Appellate Court erred in dismissing the suit
accepting the defence of the defendant in coming to the
conclusion that there was a partition in the year 1972 and
parties have acted upon. The counsel would vehemently contend
that with regard to the burn injuries sustained by the plaintiffs'
father was admitted and the same is also admitted by the
witnesses and specific pleading is also made that taking
advantage of his incapability, signatures were obtained to the
registered partition deed. The counsel would vehemently
contend that after the death of their father only the plaintiffs
came to know that there was a registered partition deed. The
counsel also vehemently contend that Ex.P3 to P11 clearly
discloses that property jointly stands in the name of plaintiffs
and defendants. The counsel also would vehemently contend
that Item No.4 was granted and Form No.7 is very clear that
grant was made in favour of the joint family and not in the
individual capacity and the same is also not properly appreciated
by the First Appellate Court. Hence, this Court has to answer the
above substantial question of law affirmatively.
14. Per contra, the learned counsel appearing for the
respective respondents would vehemently contend that in the
plaint, not pleaded with regard to fraud and misrepresentation
and obtaining of signature to the document by fraud and even to
the burn injuries concerned. The counsel also would vehemently
contend that father of the plaintiffs was alive till 2007 and he did
not challenge the earlier partition of the year 1972 and
subsequent document came into existence on 21.12.2004 and
the said document was registered document. Only after the
death of their father, sets up the false defence that they were
not aware of the earlier registered partition deed. The counsel
would vehemently contend that in the partition deed of the year
2004, left out some of the properties and because of that, the
parties have acted upon in terms of the earlier partition and sold
the properties. The counsel also would vehemently contend that
already there was a partition in the year 1972 and the same was
acted upon and even some of the properties are transferred in
the name of the father of the plaintiffs and subsequently, sold
some of the properties and documents of Ex.D5 and D6 are
substantiated the same. The counsel also would vehemently
contend that there was an unregistered partition in terms of
document at Ex.D11 and equal shares were allotted at the time
of earlier partition. The specific defence was also taken that what
are all the properties were allotted in favour of the plaintiffs'
father and same is also put to the witness PW1 during the cross
examination and PW1 in the cross examination admitted that
certain properties are stands in the name of their father. If there
was no partition, what made to change the katha in favour of the
plaintiffs' father. The counsel would vehemently contend that
grant was made after the partition and the same was in favour
of the defendant and records also clearly disclose that grant was
made in favour of the defendant only. The counsel would
vehemently contend that no fraud was pleaded and particulars
are not given in terms of Order VI Rule 4 of CPC and if no
particulars are given, question of fraud and misrepresentation
does not arise. The First Appellate Court rightly reversed the
judgment of the Trial Court reconsidering both oral and
documentary evidence available on record. The counsel contend
that the Trial Court committed an error in applying Section 6 of
the Hindu Succession Act and ought not to have relied upon the
said Section since there was already a partition. Hence, the
question of interference of this Court does not arise.
15. In reply to this arguments, counsel appearing for the
appellants would vehemently contend that in paragraph 9 of the
plaint, it is specifically pleaded with regard to misleading of the
plaintiffs' father and there is a clear allegation of fraud and there
is an admission to that effect. The counsel also would
vehemently contend that Ex.P8 clearly discloses RTC stands in
the joint name of Anjinappa and Muniyappa for the year 1984-
1985 and in the cultivation column also, joint name is shown.
These materials were not considered by the First Appellate
Court. Hence, interference of this Court is required.
16. Having heard the learned counsel appearing for the
respective parties, this Court has to reanalyze the material
available on record, since there is a divergent finding. At the first
instance, the Trial Court granted the relief of partition, but the
First Appellate Court reversed the finding of the Trial Court. In
view of the divergent finding, this Court even can look into the
evidence available on record while considering the second appeal
keeping in view the substantial questions of law framed by this
Court at the time of admission.
17. Having perused both oral and documentary evidence
available on record, the very pleading of the plaintiffs is that
there was no any partition and the suit schedule properties are
ancestral and joint family properties. The partition deed dated
21.12.2004 obtained by the defendants from the father of the
plaintiffs in respect of the suit schedule property is not binding
on the plaintiffs and so also the sale deed dated 25.04.2005
executed by defendant Nos.1 to 5 in favour of defendant No.6 in
respect of item No.4 of the suit schedule property is not binding
on the legitimate share of the plaintiffs. It is the specific
contention of the respondents that there was no specific pleading
in the plaint with regard to obtaining of partition deed
fraudulently and there must be a particulars to fraud.
18. Having perused this contention, this Court has to
take note of the contents of the plaint. In paragraph No.5 of the
plaint, it is stated that the landed properties were originally thoti
service inam land attached to the Village office Rajaghatta
Amanikare Village granted to the grandfather of the plaintiffs,
namely Sri Budappa and was discharging the duties of thoti-
inamdari of the said village and after his death, the father of the
plaintiffs and defendant No.1 being the sons of Budappa were
jointly discharging the duties of the thoti naukari of Rajaghatta
Village and were cultivating the schedule properties accordingly.
It is contented that on coming into the force of Karnataka Village
Officers Abolition Act, the plaintiffs' father and defendant No.1
jointly filed an application of re-grant of the suit schedule
properties in their favour before the Tahsildar, Doddaballapura
and the same was re-granted in favour of the plaintiffs' father
and defendant in Case No.H.O.A.CR.No.68/1996-97 and the
grant was jointly in favour of the plaintiffs' father and the
defendant. Thereafter, all the revenue records stands
transferred in the name of the plaintiffs' father and the
defendant through M.R.No.31/1997-98. The copy of the
Tahsildar order, mutation and RTC's are also produced and both
of them have continued the joint possession. The father of the
plaintiffs died on 19.11.2007. The defendant No.1 being the
uncle of the plaintiffs and the elder member of the joint family
continued to look after the management of the joint family as
kartha and when the defendant started neglecting the welfare of
the plaintiffs, a panchayat was convened on 01.12.2007 to effect
the partition. But the defendant contended that already there
was a partition between the father of the plaintiffs and defendant
on 21.12.2004 and the same was surprise to the plaintiffs and
applied for certified copy of the registered partition deed.
19. The plaintiffs after obtaining the certified copy of the
partition deed, came to know that only land to an extent of 17
guntas in Sy.No.34 of Rajaghatta Amani Kare and 16 guntas in
Sy.No.243 of Rajaghatta Village was allotted to the share of the
plaintiffs' father and in that partition, the defendant was shown
to be allotted a lion share. It is specifically pleaded that the
plaintiffs' father was an illiterate and innocent and he had no
worldly knowledge and further both the plaintiffs and father were
having very good faith and cordial relationship with the
defendant. It is also contended that the plaintiffs' father was
aged more than 70 years and he was suffering from old age
ailments and he was not in a position to understand anything
and not having sound state of mind to know anything except
following the plaintiffs and the defendant. It is contended that no
such partition was entered between the parties. Taking the
undue advantage of innocence and illiteracy and on good faith
the plaintiffs' father having on him has abused the good faith
and has obtained the registered partition deed clandestinely
behind the back of the plaintiffs with an intention to deprive the
legitimate equal share of the plaintiffs over the suit schedule
properties and thus, the partition deed dated 21.12.2004 is a
fraudulent document obtained by the defendant on
misrepresenting the facts and hence, the same is not binding on
the plaintiffs.
20. Having considered these averments made in the
plaint and also considering the evidence of P.W.1, P.W.1
reiterated the same in his affidavit. In the cross-examination, it
is emerged that the father of the plaintiffs and the defendant are
living separately and having separate ration cards and contend
that there was no partition and denies the specific suggestion
that there was a partition on 03.11.1972. He says that he
cannot tell when the ration card came into existence separately.
In the cross-examination, a suggestion was made that in terms
of the partition of 1972, particular properties are allotted to the
father of the plaintiffs and the same was denied. However, he
admits that khatha in respect of Sy.No.35 to an extent of 17
guntas and Sy.No.243 to an extent of 16 guntas, was standing in
the name of his father. When a suggestion was made that, on
20.01.2005, Sy.No.128/5 was allotted to the defendant, he says
that it may be allotted. He admits that his uncle only paid the
amount to the Government. He says that his uncle was looking
after the affairs of the family and hence, he has paid the
amount. He claims that pahani stands in the name of his
grandfather and also his father's name. However, he admits that
both his grandfather and his father have not given any
application to the Land Tribunal. A suggestion was made that in
the year 1972, his father had sold the property which was
allotted to him in respect of Sy.No.207, but he claims that both
of them sold the property. He admits that his mother was
suffering from TB and she was provided treatment at Kolar
Hospital. It is suggested that on 03.05.1973, his father had sold
Sy.No.118 to an extent of 1 acre 12 guntas to one Rajanna and
he says that he is not aware of the same. However, he admits
that khatha stands in the name of Rajanna.
21. It is suggested that his father had sold the property
in Sy.No.118/3 to one Mruthyunjayappa and the witness says he
is not aware of the same. It is suggested that his father had
sold the property in Sy.No.207 to an extent of 1 acre 3 guntas to
one Ramesh and he says that may be, but he is not aware of the
same. But again he says that both of them joined together and
sold the same. He admits that other than agricultural income, his
father had no other income. A suggestion was made that his
uncle sold Sy.No.119 to an extent of 1 acre 19 guntas to one
Narasimhamurthy and he says that he is not aware of the same.
However, he admits that his father may be a signatory to the
said sale deed as witness. It is suggested that the said property
was allotted to Anjinappa and hence, he sold the same and the
same was denied. In further cross-examination, he admits that
Sy.No.207 to an extent of 1 acre 3 guntas was sold on
11.05.2001 to Ramesh and he was a signatory to the said sale
deed. He says he did not go to the Sub-Registrar Office when
the document was registered on 21.12.2004. However, he
admits that he himself and his father were residing together. He
admits that his father was informing him and his uncle about all
the transactions. He categorically admits that the properties,
which have been sold were not included in the suit and the suit
is filed in respect of remaining lands and he had not filed any
appeal against the change of khatha.
22. P.W.2 is the sister of P.W.1 and she also reiterated
the plaint averments. In the cross-examination, P.W.2 admits
that the suit property was sold on 25.04.2005 by her uncle in
favour of Narasimhamurthy. She admits that her father is also a
signatory to the said document and subsequent to the purchase,
they are in possession of the property. A suggestion was made
that, in the sale deed dated 25.04.2005, there was a reference
that there was a partition on 21.12.2004 and the said suggestion
was denied. It is admitted that when the father was alive, they
have seen the revenue documents and some of the documents
are standing in the name of her father and she did not challenge
the partition till date and also not questioned the sale deed
executed by her father. She admits that her father was having
drinking habit and except that he was not having any other bad
wises. She admits that the property sold by her father was for
the family necessity. A suggestion was made that property in
Sy.No.207 to an extent of 1 acre 35 guntas was sold to Ramesh
by her family and she denies the same. She admits that the said
property is an ancestral property. She further admits that
Sy.No.207 to an extent of 1 acre 35 guntas was not included in
the suit. A suggestion was made that subsequent to the
partition, her father and uncle had sold the property and she
denies the same and says that her uncle only sold the property.
It is admitted that she has not produced any document to show
that her father and uncle were living together. It is admitted
that her marriage and her sister's marriage was performed by
her father only. But P.W.1 claims that marriage was conducted
by both the father and uncle.
23. Having perused the documentary evidence, it is clear
that the properties are inamthi land as per Ex.P1 and the same
is regranted. Ex.P.2 clearly discloses that the land was granted
jointly in the name of Muniyappa and Anjinappa. As per Ex.P.1,
mutation came into existence in M.R.No.31/1997-98 based on
HOA/CR.No.68/1996-97. Ex.P.3 discloses joint name in respect
of Sy.No.35 in the name of Muniyappa and Anjinappa for the
year 1997-1998. The other RTC extract Ex.P.4 discloses both the
names of Muniyappa and Anjinappa in column No.12. Ex.P.5 is
in respect of Sy.No.243 and it stands in the joint name of
Muniyappa and Anjinappa for the year 1997-1998. Sy.No.48
stands in the name of Muniyappa and Anjinappa to an extent of
1 acre 8 guntas in column No.12. The RTC extract for the year
2007-08 stands in the name of Anjinappa to an extent of 1 acre
8 guntas in respect of Sy.No.48. Sy.No.119, stands in the joint
name of Muniyappa and Anjinappa to an extent of 1 acre 19
guntas for the year 1997-98. Sy.No.128/5 stands in the name
of Anjinappa for year 2007-2008. Sy.No.239 to an extent of 2½
guntas stands in the name of Muniyappa and Anjinappa as per
re-grant. Sy.No.239 to an extent of 5 guntas stands in the name
of Anjinappa.
24. It is not in dispute that the father of the plaintiffs
died on 19.11.2007 and there is no dispute with regard to the
relationship between the parties is concerned. On perusal of the
document Ex.P.12 partition deed dated 21.12.2004, there is no
reference of earlier partition of the year 1972. The defendants
also not disputed this document of partition. On perusal of the
recitals of the document, it is mentioned that both of them are
residing together jointly and they are making the partition
voluntarily. This document contains the signature of Anjinappa
and the left thumb impression of the plaintiffs' father. It is also
emerged during the course of evidence that, the plaintiffs' father
was not keeping good health and he was taken to Sub-Registrar
Office. The documents which have been produced before the
court as exhibit 'P' series clearly discloses that both the names
are found jointly. Ex.P.19 RTC extract for the year 1985-1986
discloses joint names of Muniyappa and Anjinappa in
Sy.No.128/5, which the defendant claims that, that is an
independent property. There is no explanation on the part of the
defendant with regard to this document is concerned. Hence, it
is clear that both plaintiffs' father and the defendant are
cultivating the property in Sy.No.128/5 together. No doubt,
there was a grant in favour of Anjinappa. Ex.P.20 discloses that
the same stands in the name of Anjinappa subsequent to the
grant in 2010-11. But old document discloses the cultivation by
both the plaintiffs' father and the defendant in respect of
Sy.No.128/5.
25. Having considered the oral evidence of D.W.1, he
reiterates the written statement contents. In his evidence, he
states that there was a partition deed dated 21.12.2004 between
himself and his brother. He admits that himself and his brother
both executed the document in favour of Narasimhamurthy as
per Ex.D.3 and also relies upon Ex.D.4 sale made by his brother
and his family members. However, he admits in the cross-
examination that Exs.D.4 to 6 is signed by himself and his
brother. He denies the suggestion that both of them have sold
the property. However, he admits that as per Ex.D.3, he himself
and his brother jointly sold the property. It is suggested that his
brother signed only as a witness to Ex.D.3 and the same is
denied. He admits that in the year 2005, his all children were
major. He claims that he filed Form No.7 and hence, land was
granted in his name. It is suggested that partition deed was
created and the same is denied. When a question was put that
in the partition deed dated 21.12.2005, there was no any
reference of earlier partition of 1972, he says that he is not
aware of the same. He claims that partition was taken place in
terms of Ex.D.11 and Katha was transferred in the year 2001-
2002 and he cannot tell whether M.R. is av`ailable or not. It is
suggested that Sy.No.207 to an extent of 3½ guntas was sold to
Ramesh and both of them executed the sale deed on
11.05.2001. But he claims that he has signed the said document
on the request of his brother. It is suggested that Ex.D.11 was
created for this case and the same was denied. It is suggested
that his brother was not feeling well in 2004 and when he was
bed ridden, the document of partition deed was created and the
same was denied. He admits that his brother was suffering from
burn injuries and hence he was taken in an autorickshaw to the
Sub-Registrar's Office and got registered the document.
26. The defendants also examined the witness D.W.2
and D.W.2 in his evidence he says that there was a partition in
the year 1972 and since then joint family was not in existence.
He says that property in Sy.No.128/5 was granted in favour of
defendant No.1 based on Form No.7A filed before the Land
Tribunal. He says that subsequently there was a registered
partition on 21.12.2004. This witness was also subjected to
cross-examination. In the cross-examination, he says that there
was a partition in the year 1972, but he is not aware of the
survey numbers allotted to the plaintiffs' father and the
defendant No.1. He says that he had participated in the said
partition and document also came into existence and he had
signed the document as a witness. He says that in the year
2004, defendant No.1 took his brother to the Sub-Registrar
Office and got executed the document, but he was not a
signatory to the said document. He admits that his son had
purchased Sy.No.119 to an extent of 1 acre 19 guntas and the
same was executed by defendant No.1 and his children.
27. The other witness is D.W.3. In the cross-
examination, D.W.3 categorically admits that he had not
participated in 1972 partition and he is not aware of the same.
He categorically admits that in the partition of the year 2004
also he was not present. He admits that in the year 2004, father
of Byanna was not having good health condition and he had
sustained burn injuries. He admits that he had purchased the
property in Sy.No.207 to an extent of 1 acre 3 guntas and the
same belongs to the father of the plaintiffs and defendant No.1
and there was a re-grant. He says that except purchasing that
property, he is not aware of anything about the family of the
plaintiffs and the defendant. D.W.1 requested him and hence, he
came and deposed before the Court.
28. The other witness is D.W.4 and he also reiterates the
evidence of D.W.2 and D.W.3 that there was a partition between
himself and his brother Muniyappa and that his father Buddappa
died leaving behind himself, his brother Muniyappa and his elder
sister Smt. Anjinamma. He also speaks about the earlier
partition. He was subjected to cross-examination. In the cross-
examination, he admits that he is originally resident of
Rajaghatta Village. He admits that he cannot say the averments
made in paragraph Nos.4 and 5 of the affidavit. He admits that
in terms of partition of the year 2004, he had purchased the
property in terms of Ex.D.10. He admits that, to that sale deed
neither the plaintiffs nor the plaintiffs' father had signed the
same. But he claims that Muniyappa signed as a witness.
29. Having considered the evidence of D.W.1 to D.W.4, it
is very clear that D.W.2 and D.W.3 are interested witnesses,
since D.W.2 admits that his son had purchased the property in
respect of Sy.No.119/1 to an extent of 1 acre 10 guntas and the
same was executed by defendant No.1 and his children. D.W.3
in the cross-examination admits that he is not aware of anything
except purchasing the property in Sy.No.207. But his admission
is very clear that the father of the plaintiffs had sustained burn
injuries and the same is also admitted by D.W.1. D.W.1 in his
evidence says that while getting the document of partition
executed in the year 2004, he took his brother i.e., the plaintiffs'
father in an autorickshaw and got registered the document. The
material clearly discloses that the plaintiffs' father was an
illiterate. The evidence of D.W.4 also will not come to the aid of
the defendants, since he was not aware of the contents of
affidavit in paragraph Nos.3 and 4. He speaks about he had
purchased the property and the plaintiffs' father was a signatory
to the document. There is no dispute that subsequent to the
registered partition, the document of Ex.D.10 came into
existence. Though D.W.2 speaks about he was aware of the
earlier partition of the year 1972 and he was very much present,
his evidence is not credible, since he is an interested witness.
30. Having perused both oral and documentary evidence
available on record, no doubt, sale deeds are executed by the
plaintiffs' father and also defendant No.1. The fact is that both
defendant No.1 as well as the plaintiffs' father have jointly
executed the documents of Ex.D.3 and Exs.D.4 to 6. Apart from
that, in the document of Ex.D.2 partition deed of the year 2004,
which came into existence subsequent to amendment to Section
6 of the Hindu Succession Act, nothing is stated about earlier
partition of the year 1972 and no recital in the said document
that partition was taken place earlier. But, the registered
document of partition dated 21.12.2004 clearly discloses that
both of them are residing together and joint family was in
existence and hence, documentary evidence prevails over the
oral evidence of D.W.1. Having perused the document of Ex.P.12
and Ex.D.2, partition deed dated 21.12.2004, if really there was
an earlier partition in the year 1972, there would have been
reference and merely because P.W.1 and P.W.2 admits that two
properties are standing in the name of their father and the same
is not evident from consequent upon the partition in the year
1972, khatha was changed. All the documents which have been
produced by the plaintiffs is very clear that the property was re-
granted in terms of Ex.P.1 in respect of suit schedule properties
and M.R.No.31/1987-88 came into existence consequent upon
the order passed in terms of Ex.P.1 and the same is in the joint
name of both of them. Hence, it is clear that there was a joint
name and exhibit 'P' series and other documents which have
been produced by the defendants clearly discloses the joint
name of plaintiffs and defendant No.1. Hence, there is no
material proof with regard to the earlier partition of the year
1972. With regard to the subsequent registered partition deed
of the year 2004, it is categorically admitted by DW1 and
witnesses that the father of the plaintiffs had suffered burn
injuries. D.W.1 categorically admits that he took his brother to
the Sub-Registrar Office in an autorikshaw. Whether he had
conscious about the partition deed and subsequent document of
sale deed in terms of Ex.D.10 that he had signed as a witness
only and the pleadings made in the plaint clearly discloses that
there was an existence of joint family and there was no any
severance and also specifically pleaded with regard to taken
advantage of illiteracy of the plaintiffs' father and all these
factors were taken note of by the Trial Court in detail while
considering the case of the plaintiffs and granted the relief.
31. No doubt, the First Appellate Court reversed the
finding of the Trial Court taking note of there was a grant in the
name of defendant Anjinappa and Form No.7A was issued in his
name. No doubt, the same was issued in his name. But, the
documents which have already been referred i.e., Ex.P19 shows
the joint name of the plaintiffs' father and defendant No.1 was in
existence and cultivating together and hence granted in favour
of family. The First Appellate Court while reversing the finding of
the Trial Court, particularly taken note of Ex.D.11 is an
unregistered papupatti, which has no evidentiary value and the
same has been discussed in paragraph No.15 by the Trial Court
and comes to the conclusion that defendant No.1 and his family
members have also alienated certain properties to which
plaintiffs or their father are not parties. Ex.D.5 registered sale
deed dated 03.07.1973 came to be executed by the plaintiffs'
father Muniyappa in favour of Chikkashamanna in respect of
khaneshumari No.237 of Rajaghatta Village. Ex.D.6 is sale deed
dated 03.05.1973 in respect of land measuring 1 acre 12 guntas
in Sy.No.118/P of Rajaghatta Village executed in favour of
Rajanna S/o Shivarudrappa but DW1 categorically admitted that
he is signatory to Ex.D3 to D6. The fact is that those properties
are not included in the plaint schedule. Both of them have signed
the said document. The First Appellate Court taken note of
Ex.D.10. But the fact is that the father of the plaintiffs also
affixed his signature as attesting witness. But whether he had
the knowledge that he is signing the same as attesting witness
or not, nothing is forthcoming. No doubt, in paragraph No.16 it
is observed with regard to document of 21.12.2004 and affixing
of signature by the father of the plaintiffs. The circumstances
under which the document was executed is very clear that the
plaintiffs' father had sustained burn injuries and he was taken to
the Sub-Registrar Office in an autorickshaw as admitted by
D.W.1 and he has given consent for partition cannot be taken
and the observation made by the First Appellate Court is not
discussed with regard to the injury sustained by the father of the
plaintiffs and taken him to the Sub-Registrar Office and only
carried away with the observations made in paragraph No.18
that there was a grant in favour of Anjinappa on 19.05.2005.
The fact that earlier both of them were cultivating the said
property was not taken note of by the First Appellate Court
about Ex.P19. The very document of RTC clearly discloses that
both of them were cultivating the property. When such being the
case, there was no any discussion with regard to the same by
the First Appellate Court and hence, the very approach of the
First Appellate Court is erroneous. The Trial Court in detail taken
note of both oral and documentary evidence and hence, I answer
the substantial questions of law accordingly.
32. In view of the discussions made above, I pass the
following:
ORDER
(i) The second appeal is allowed.
(ii) The judgment and decree of the First
Appellate Court dated 07.02.2020 passed in
R.A.No.10104/2019 is set aside.
(iii) The judgment and decree of the Trial Court
dated 19.07.2019 passed in O.S.No.85/2008
is restored.
Sd/-
(H.P. SANDESH)
JUDGE
SN/MD
