Karnataka High Court
Sadashiv S/O. Kadappa Malabai vs Smt Rajeshwari @ Rajshri ... on 19 February, 2025
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RFA No. 100391 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF FEBRUARY 2025
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO. 100391 OF 2020 (PAR/POS)
BETWEEN:
SADASHIV S/O. KADAPPA MALABAI
SINCE DEAD. BY HIS LRS
1. SMT. SUJATA W/O. MURAGESH METRI
AGE : 38 YEARS, OCC : HOUSEHOLD WORK,
R/O : SUNAGAR GALLI, ATHANI,
DIST : BELAGAVI-591304.
2. SOMASHEKAR S/O. SADASHIV MALABADI
AGE : 34 YEARS, OCC : BUSINESS,
R/O : BANAHATTI, TQ : JAMKHANDI,
DIST : BAGALKOT-587311.
3. SHRISHAIL S/O. SADASHIV MALABADI
AGE : 32 YEARS, OCC : BUSINESS,
MOHANKUMAR
B SHELAR R/O : BANAHATTI, TQ : JAMKHANDI,
DIST : BAGALKOT-587311.
Digitally signed by
MOHANKUMAR B
SHELAR 4. JAYASHRI W/O. MALAPPA MALABADI
Date: 2025.03.01
10:54:09 +0530 AGE : 64 YEARS, OCC : HOUSE WIFE,
R/O : BANAHATTI, TQ : JAMKHANDI,
DIST : BAGALKOT-587311.
5. MADHURANI W/O. RAJU METRI
AGE : 34 YEARS, OCC : HOUSEHOLD WORK,
R/O : SUNAGAR GALLI, ATHANI
DIST : BELAGAVI-591304.
6. KAVITA W/O. MAHARUDRAPPA
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RFA No. 100391 of 2020
CHANNAPPANAVAR, AGE : 34 YEARS,
OCC : HOUSE WIFE, R/O : HULYAL,
TQ : JAMKHANDI, DIST : BAGALKOT-587311.
7. MAHESH S/O. MALLAPPA MALABADI
AGE : 29 YEARS, OCC : WEAVER AND
AGRICULTURE, R/O : BANAHATTI,
TQ : JAMKHANDI, DIST : BAGALKOT-587311.
8. SANJU S/O.MALLAPPA MALABADI
AGE : 29 YEARS, OCC : BUSINESS,
R/O : BANAHATTI, TQ : JAMKHANDI,
DIST : BAGALKOT-587311.
...APPELLANTS
(BY SRI. VISHWANATH HEGDE, ADV)
AND:
1. SMT. RAJESHWARI @ RAJSHRI
W/O. JAYAVANT BHAVIKATTI
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O: MAHALINGAPUR, TQ: MUDHOL,
DIST: BAGALKOT-587312.
2. SMT. SHOBHA W/O. SANGAPPA BANKAR
AGE : 50 YEARS, OCC : HOUSE WIFE
R/O : GANESH NAGAR HUNNUR,
TQ : JAMKHANDI, DIST : BAGALKOT-587311.
NEELAWWA W/O.CHANNAPPA DHADOOTHI
SINCE DECEASED BY HER LRS
3. SMT. PRABHAVATI W/O. BABURAO KERORE
AGE : 53 YEARS, OCC : HOUSE HOLD WORK,
R/O : HOSPETH GALLI, NEAR JAIN BASTI
CHIKODI, TQ: CHIKODI, DIST: BELAGAVI-591201.
4. SMT. LALITA W/O. SHANKAR MALABADI
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RFA No. 100391 of 2020
AGE : 52 YEARS, OCC : HOUSE HOLD WORK,
R/O : FARM HOUSE, BANAHATTI,
TQ : JAMKHANDI, DIST : BAGALKOT-587311.
5. MAHADEV S/O. CHANNAPPA DHADUTI
AGE : MAJOR, OCC : AGRICULTURE,
R/O : CHIMMAD, TQ : MUDHOL,
DIST : BAGALKOT-587312.
6. PRADEEP S/O. CHANNAPPA DHADUTI
AGE : 49 YEARS, OCC : AGRICULTURE,
R/O : CHIMMAD, TQ : MUDHOL,
DIST : BAGALKOT-587312.
7. SUBHAS S/O. CHANNAPPA DHADUTI
AGE : 48 YEARS, OCC : AGRICULTURE,
R/O : CHIMMAD, TQ : MUDHOL,
DIST : BAGALKOT-587312.
8. SHANKAREPPA S/O. GANGAPPA MALABADI
AGE : 55 YEARS, OCC : WEAVER AND
AGRICULTURE, R/O : BANAHATTI,
TQ : JAMKHANDI, DIST : BAGALKOT-587311.
9. MAHANANDA W/O. BASAPPA METRI
AGE : 41 YEARS, OCC : HOUSEWIFE,
R/O : SUNAGAR GALLI, TQ : ATAHNI,
DIST : BELAGAVI-591304
SMT. BHARATHI W/O. SADASHIV BARIGIDAD
SINCE DEAD. BY HER LRS.
10. SADASHIV S/O.BASAPPA
KATTEWADI @ BARIGIDAD
AGE : 54 YEARS, OCC : HOTEL BUSINESS,
R/O : HUNNUR, TQ : JAMKHANDI,
DIST : BAGALKOT-587311.
11. MALLAPPA S/O. SADASHIV
KATTEWADI @ BARIGIDAD
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RFA No. 100391 of 2020
AGE : 32 YEARS, OCC : AGRICULTURE,
R/O : HUNNUR, TQ : JAMKHANDI,
DIST : BAGALKOT-587311.
12. SMT. SHRUTI W/O. IRAPPA CHIKKODI
AGE : 27 YEARS, OCC : HOUSEHOLD WORK,
ASANGI VILLAGE, TQ : JAMKHANDI,
DIST : BAGALKOT-587311.
13. SHANKAREWWA @ SHANKAREMMA
D/O. SADASHIV KATTEWADI @ BARIGIDAD
AGE : 24 YEARS, OCC : HOUSEHOLD WORK,
R/O : HUNNUR, TQ : JAMKHANDI,
DIST : BAGALKOT-587311.
...RESPONDENTS
(BY SRI. VITTHAL S TELI, ADV FOR R1 & R2,
R3 TO R13 ARE SERVED)
THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 28.02.2020 PASSED IN
O.S.NO.109/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, BANAHATTI, DECREEING THE
SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
CORAM: AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
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RFA No. 100391 of 2020
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)
This Regular First Appeal is filed by the appellants
challenging the judgment and preliminary decree dated
28.02.2020 passed in O.S. No.109/2016 (Old No.50/2014)
by the learned Senior Civil Judge and JMFC, Banahatti.
2. For convenience, the parties are referred to,
based on their rankings before the trial Court. Appellant
Nos.1 to 3 are the legal representatives of the deceased
defendant No.1, appellant Nos.4 to 8 were defendant
Nos.2 to 6, respondent Nos.1 and 2 were the plaintiffs,
and respondent Nos.3 to 8 are the legal heirs of deceased
defendant No.7, respondent No.9 was defendant No.8,
respondent Nos.10 to 13 are the legal heirs of deceased
defendant No.10.
3. Brief facts, leading rise to the filing of this
appeal are as follows:
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The plaintiffs filed a suit against the defendants for
partition and separate possession. It is the case of the
plaintiffs that one Mallappa was the propositus. He had 4
children namely, Kadappa, Basappa, Agraneppa, and
Gangappa. Kadappa had a wife by name Gurawwa.
Kadappa had two sons by name Mallappa and Sadashiv.
Sadashiv is defendant No.1, and defendant Nos.2 to 6 are
the legal heirs of deceased Mallappa, son of Kadappa.
Neelawwa i.e. Defendant No.7, is the wife of Basappa.
The plaintiffs are the daughters Agraneppa, and defendant
Nos.8 to 10 are the children of Gangappa. After the
demise of the original propositus-Mallappa, there was no
partition effected between his sons. Kadappa, being the
eldest son, managed all the properties and assets of the
family. Schedule 'A' and 'B' are the ancestral/joint family
properties of the plaintiffs and the defendants. The
plaintiffs are the granddaughters of Mallappa and they are
married. Both the plaintiffs and the defendants are
enjoying undivided, and unspecified shares in the suit
schedule 'A' and 'B' properties. The plaintiffs' father i.e.
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Agraneppa passed away in 2000, and their mother passed
away in 2005. Agraneppa was entitled to a 1/4th share in
the suit schedule propeties. The plaintiffs are entitled to a
1/4th share in a suit 'A' and 'B' schedule properties. The
plaintiffs requested the defendants to effect a partition but
the defendants refused to effect a partition. It is
contended that, no partition is effected by metes and
bounds. It is contended that, the defendants have
obtained the signatures of the plaintiffs on blank papers
with an assurance that partition would be effected in due
course. The plaintiffs are not fully literate and they have
their family responsibility and are not in a position to
personally visit the concerned Government Offices. They
trusted the defendants and signed the blank papers in
good faith. The defendants misused the signed blank
papers, and created documents to show that they have
acquired the said suit 'A' & 'B' schedule properties and
have entered their names in Records of Rights. The said
documents are sham and bogus. Hence, prays to decree
the suit.
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appeared through their counsel, and filed their written
statement. Defendant Nos.8 to 10, despite service of
summons, remained unrepresented, and were placed
exparte.
5. Defendant Nos.1, 5 and 6 filed a written
statement denying the averments made in the plaint and
contended that the plaintiffs are not in possession of the
suit schedule properties. It is contended that the plaintiffs
gave up their right, title and interest over the suit
schedule properties in 2006 by executing a Consent Deed
regarding their share in a suit 'A' and 'B' schedule
properties by receiving Rs.2,50,000/-, and they have
executed the deed on their own. Hence, the plaintiffs are
estopped to claim a share in suit schedule 'A' and 'B'
schedule properties. Hence, prays to dismiss the suit.
6. The trial Court, based on the pleadings of the
parties, framed the following issues:
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ISSUES
1. Whether the plaintiffs proves that suit schedule
properties are the joint family, ancestral properties?
2. Whether the defendant No. 1, 5 & 6 prove the
earlier partition in the family ?
3. Whether the defendant No.1, 5 & 6 prove that, in
the year 2006 plaintiffs are given up their share by
executing consent deed by receiving Rs.2,50,000/-?
4. Whether plaintiffs, are entitled for the reliefs as
claimed ?
5. What order or decree ?
7. The plaintiffs to substantiate their case, plaintiff
No.1 examined herself as PW.1, examined 3 witnesses as
PWs.2 to PW.4, and marked 8 documents as Exs.P-1 to P-
8. On the other hand, defendant No.5 examined himself
as DW.1 and examined 3 witnesses as DW.2 to DW.4, and
marked 5 documents ad Exs.D.1 to D-5.
8. The trial Court, after recording the evidence,
hearing on both sides, and on the assessment of the oral
and documentary evidence, answered issue Nos.1 and 4 in
the affirmative and issue Nos.2 and 3 in the negative, and
issue No.5 as per the final order. The suit of the plaintiffs
was decreed vide judgment dated 28.02.2020. It is
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declared that, the plaintiffs are entitled to a 1/4th share in
respect of suit 'A' and 'B' schedule properties.
9. The legal representatives of the deceased
defendant No.1, and defendant Nos.2 to 6, aggrieved by
the judgment and preliminary decree passed in O.S.
No.109/2016, have filed this Regular First Appeal.
10. Heard the learned counsel for defendant Nos.1
to 6 and the learned counsel for the plaintiffs.
11. The learned counsel for defendant Nos.1 to 6
submits that, as the plaintiffs, by accepting Rs.2,50,000/-
each have relinquished their right in favour of the
defendants by executing a Consent Deed, and the parties
have acted upon the Consent Deed, the plaintiffs are
estopped to claim a share in the suit 'A' and 'B schedule
properties. The trial Court has misread the contents of
Exs.D1 and D3. He submits that, the said Exs.D1 and D3
bears the signatures of the plaintiffs. This aspect was
not properly considered by the trial Court, and passed the
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impugned judgment. He submits that, the impugned
judgment passed by the trial Court is arbitrary and
erroneous. Hence, on these grounds, he prays to allow
the appeal.
12. Per contra, the learned counsel for the plaintiffs
submits that, the plaintiffs are members of the Hindu
undivided joint family, and the suit schedule properties
are the ancestral joint family properties of the plaintiffs
and the defendants and no partition is effected. He
submits that the plaintiffs have not executed any Consent
Deed as per Exs.D1 and D3. He further submits that the
said documents are marked subject to objections and are
inadmissible in evidence. He further submits that Section
17 of the Indian Registration Act provides that, 'a
immoveble property worth more than Rs.100/- is to be
transferred by way of registration.' He submits that the
defendants by Exs.D1 and D3 have not acquired any right
or title over the suit 'A' and 'B' schedule properties. He
further submits that, the trial Court was justified in
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passing the impugned judgment. Hence, on these
grounds, he prays to dismiss the appeal.
13. Perused the records, and considered the
submissions of the learned counsel for the parties.
14. The points, that arise for our consideration are:
(i) Whether the plaintiffs prove that the suit
schedule properties are the ancestral and joint
family properties of the plaintiffs and the
defendants?
(ii) Whether the defendants prove that the plaintiffs
have relinquished their right in 2006 by
executing a Consent Deed by receiving
Rs.2,50,000/-?
(iii) Whether the defendant prove that the
judgment and decree passed by the trial Court
is perverse and arbitrary?
(iv) What order or decree?
15. Point No.(i): The plaintiffs to substantiate
their case, plaintiff No.1 was examined as PW.1. She
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reiterated the plaint averments in the examination-in-
chief, and she deposed that, Mallappa was the original
propositus. He had 4 sons namely Kadappa, Basappa,
Agraneppa and Gangappa. The plaintiffs and the
defendants are the granddaughters, and grandsons of
propositus Mallappa. It is stated that, the suit schedule
properties are the ancestral joint family properties of the
plaintiffs and the defendants. There is no partition
effected by metes and bounds in suit schedule 'A' and 'B'
schedule properties. The plaintiffs requested the
defendants to effect a partition, but the defendants
refused to effect a partition. The plaintiffs produced
documents, Exs.P-1 and 2 are the property register
extracts, regarding CTS Nos.7861 and 7862 which reveals
that on 10.01.2006 a wardi was submitted. Based on the
wardi, the names of Sadashiv Kadappa Malabadi, Mahesh,
Sanju Mallappa Malabadi, Shankarappa, Mahananda and
Bharati were entered. Ex.P-3 is the property register
extract regarding CTS No.7863 which stands in the name
of Sadashiv, Mahesh, Sanju, and Shankarappa. Ex.P-4 is
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the property register extract in respect of CTS No.6779
which stands in the name of Kadappa, after his demise, it
was transferred to the name of his brothers. Ex.P-5 is the
RTC extract of land bearing Sy.No.75/1 which stands in
the name of Sadashiv Kadappa Malabadi, Mahesh s/o
Mallappa Malabadi, and Sanju son of Mallappa Malabadi as
joint Khatedars. Ex.P-6 is the RTC extract of land bearing
R.S. No.82/2 standing in the names of Sadashiv,
Shankrappa, Mahesh and Sanju Jointly; Ex.P-7 is the RTC
extract of land bearing R.S. No.82/3 standing in the
names of Subhas, Sadhashiv, Shankrappa, Mahesh and
Sanju; Ex.P-8 is the copy of legal notice dated 24.01.2014
issued by the plaintiffs to defendant Nos.1, 5 and 6 calling
upon the defendants to effect a partition. During the
cross-examination, it was suggested to PW.1 that the
defendants have paid Rs.2,50,000/- to the plaintiffs. It is
elicited in the cross-examination that, the plaintiffs have
not received Rs.2,50,000/- in full, and also denied that
plaintiff No.2 received an amount from the father for the
house construction. She has deposed that, the defendants
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have obtained the signature on a blank paper. The
defense of the defendants is that, the plaintiffs have
relinquished their right by receiving Rs.2,50,000/-, over
the suit schedule properties, and the plaintiffs executed a
Consent Deed marked as Exs.D-1 and Ex.D-3 is an
unregistered Relinquishment Deed. The plaintiffs also
examined 3 witnesses as PWs.2 to 4 who have deposed
that the Mallappa was the original propositus and the suit
schedule properties are the ancestral and joint family
properties of the plaintiffs and the defendants and they
are the members of the Hindu joint family and no partition
is effected between them. Nothing has been elicited
during the cross-examination from the mouth of these
witnesses to disbelieve their evidence.
16. On the other hand, defendant No.5 was
examined as DW.1. He has reiterated the written
statement averments in the examination-in-chief. Further,
to prove that the plaintiffs have relinquished their right
over the suit schedule properties in favour of the
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defendants, have produced the documents. Ex.D1 is the
Consent Deed, and the signature of the parties are marked
as Exs.D1(a) to (g). Ex.D-2 is the application submitted
to the Tahsildar to effect the mutation, Ex.D3 is the
unregistered Relinquishment Deed, Ex.D4 is the reply,
Ex.D5 is Form No.21 notice. Though, Exs.D1 and D3 are
marked subject to objections, the defendants are claiming
right and title over the suit schedule 'A' and 'B' schedule
properties by virtue of the said documents. By producing
Exs.D1 and D3, the defendants have admitted that the suit
schedule properties are the ancestral and joint family
properties of the plaintiffs and the defendants.
17. In view of the above discussion, we answer
point No.1 in the affirmative.
18. Point No.(ii): The defendants have taken a
defense that there was a partition in 2006, and in the said
partition, the plaintiffs have given up their share over the
suit schedule properties by executing a Consent Deed by
receiving Rs.2,50,000/- and produced the Consent Deed
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marked as Ex.D-1, and D3 is an unregistered
Relinquishment Deed. By way of a Consent Deed, no
rights can be transferred. Exs.D1 and D3 are inadmissible
in evidence, and the said documents are unregistered.
19. Section 17 of the Registration Act reads as
follows :
"17. Documents of which registration is compulsory.--
(1) The following documents shall be registered, if the
property to which they relate is situate in a district in which,
and if they have been executed on or after the date on
which, Act No. XVI of 1864, or the Indian Registration Act,
1866, or the Indian Registration Act, 1871, or the Indian
Registration Act, 1877, or this Act came or comes into force,
namely:
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport
or operate to create, declare, assign, limit or
extinguish, whether in present or in future, any right,
title or interest, whether vested or contingent, of the
value of one hundred rupees and upwards, to or in
immovable property;
(c) non-testamentary instruments which acknowledge
the receipt or payment of any consideration on
account of the creation, declaration, assignment,
limitation or extinction of any such right, title or
interest; and
(d) leases of immovable property from year to year,
or for any term exceeding one year, or reserving a
yearly rent;
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1[(e) non-testamentary instruments transferring or
assigning any decree or order of a Court or any award
when such decree or order or award purports or
operates to create, declare, assign, limit or extinguish,
whether in present or in future, any right, title or
interest, whether vested or contingent, of the value of
one hundred rupees and upwards, to or in immovable
property:]
Provided that the 4 [State Government] may, by order
published in the 5 [Official Gazette], exempt from the
operation of this sub-section any lease executed in any
district, or part of a district, the terms granted by which do
not exceed five years and the annual rents reserved by
which do not exceed fifty rupees.
4[(1A) The documents containing contracts to transfer for
consideration, any immovable property for the purpose of
section 53A of the Transfer of Property Act, 1882 (4 of 1882)
shall be registered if they have been executed on or after
the commencement of the Registration and Other Related
laws (Amendment) Act, 2001 (48 of 2001) and if such
documents are not registered on or after such
commencement, then, they shall have no effect for the
purposes of the said section 53A.]
(2) Nothing in clauses (b) and (c) of sub-section (1) applies
to--
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock
Company, notwithstanding that the assets of such
Company consist in whole or in part of immovable
property; or
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(iii) any debenture issued by any such Company and
not creating, declaring, assigning, limiting or
extinguishing any right, title or interest, to or in
immovable property except in so far as it entitles the
holder to the security afforded by a registered
instrument whereby the Company has mortgaged,
conveyed or otherwise transferred the whole or part
of its immovable property or any interest therein to
trustees upon trust for the benefit of the holders of
such debentures; or
(iv) any endorsement upon or transfer of any
debenture issued by any such Company; or
(v) 2 [any document other than the documents
specified in sub-section (1A)] not itself creating,
declaring, assigning, limiting or extinguishing any
right, title or interest of the value of one hundred
rupees and upwards to or in immovable property,
but merely creating a right to obtain another
document which will, when executed, create,
declare, assign, limit or extinguish any such right,
title or interest; or
(vi) any decree or order of a Court 3 [except a
decree or order expressed to be made on a
compromise and comprising immovable property
other than that which is the subject-matter of the
suit or proceeding]; or
(vii) any grant of immovable property by 4
[Government]; or
(viii) any instrument of partition made by a
Revenue-Officer; or
(ix) any order granting a loan or instrument of
collateral security granted under the Land
Improvement Act, 1871 (26 of 1871), or the Land
Improvement Loans Act, 1883 (19 of 1883); or
(x) any order granting a loan under the
Agriculturists, Loans Act, 1884 (12 of 1884), or
instrument for securing the repayment of a loan
made under that Act; or
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3[(xa) any order made under the Charitable
Endowments Act, 1890 (6 of 1890), vesting any
property in a Treasurer of Charitable Endowments or
divesting any such Treasurer of any property; or]
(xi) any endorsement on a mortgage-deed
acknowledging the payment of the whole or any part
of the mortgage-money, and any other receipt for
payment of money due under a mortgage when the
receipt does not purport to extinguish the mortgage;
or
(xii) any certificate of sale granted to the purchaser
of any property sold by public auction by a Civil or
Revenue-Officer.
4 [Explanation.--A document purporting or operating to
effect a contract for the sale of immovable property shall not
be deemed to require or ever to have required registration
by reason only of the fact that such document contains a
recital of the payment of any earnest money or of the whole
or any part of the purchase money.]
(3) Authorities to adopt a son, executed after the 1st day of
January, 1872, and not conferred by a will, shall also be
registered."
20. Section 49 reads as follows :
"49. Effect of non-registration of documents required
to be registered.--No document required by section 17 1
[or by any provision of the Transfer of Property Act, 1882 (4
of 1882)], to be registered shall--
(a) affect any immovable property comprised therein,
or confer any power to adopt, or
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(b) be received as evidence of any transaction
affecting such property or conferring such power, unless it
has been registered:
[Provided that an unregistered document affecting
immovable property and required by this Act or the Transfer
of Property Act, 1882 (4 of 1882), to be registered may be
received as evidence of a contract in a suit for specific
performance under Chapter II of the Specific Relief Act,
1877 (1 of 1877)2 , 3(***) or as evidence of any collateral
transaction not required to be effected by registered
instrument.]"
21. As per Section 17 of the Registration Act, if the
property to which a document is executed, it requires
compulsory registration. Admittedly, the defendants have
not produced any records to establish that, the plaintiffs
had relinquished their rights in favour of the defendants.
The said documents are unregistered documents, and are
marked subject to objection. The defendants have not
paid the duty and penalty on Exs.D1 and D3. The
plaintiffs have contended that, the defendants have taken
the signatures of the plaintiffs on a blank paper and
misused them. Further, from a perusal of Ex.D3, it does
not disclose the landed properties and payment of
Rs.2,50,000/- in favour of defendant Nos.1, 5 and 6.
Further, the trial Court has recorded a finding that Ex.D1
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stamp paper was purchased on 27.12.2006 and it was
executed, and Ex.D3, bond paper was obtained on
24.08.2006, but the Relinquishment Deed was executed
on 08.07.2007. Though, the defendants have examined
the attesting witnesses to Exs.D1 and D3, the plaintiffs
have denied, and the trial court has discarded Exs.D1 and
D3 on the ground that, the said documents are created.
The said documents do not corroborate with any other
documents and held that defendant Nos.1, 5 and 6 have
failed to establish that, in 2006, the plaintiffs have
relinquished their right by executing a Consent Deed by
receiving Rs.2,50,000/-, and rightly granted a share to the
plaintiffs i.e., 1/4th share in the suit schedule properties.
22. In view of the above discussion, we answer
point No.(ii) in the negative.
23. Point No.(iii): The plaintiffs have filed a suit
for partition and separate possession. Defendant Nos.1, 5
and 6 have taken a specific defense in the written
statement that the plaintiffs have relinquished their right
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by receiving Rs.2,50,000/-, and executed a Consent Deed
marked as Ex.D1, and an unregistered Relinquishment
Deed marked as Ex.D3. At the cost of repetition, the said
documents are unregistered, and inadmissible in evidence,
and they are marked, as subject to objections. The trial
Court was justified in discarding Exs.D1 and D3, and
rightly held that defendant Nos.1, 5 and 6 have failed to
establish that the plaintiffs have relinquished their rights
over the suit 'A' and 'B' schedule properties by receiving
Rs.2,50,000/-. The trial court was justified in recording its
finding that, the suit schedule properties are the ancestral
and joint family properties of the plaintiffs and the
defendants, and they are the members of the Hindu joint
family, and no partition is effected and rightly granted a
share to the plaintiffs. We do not find any error in the
impugned judgment. We concur with the judgment
passed by the trial Court.
24. In view of the above discussion, we answer
point No.(iii) in the negative.
- 24 -
NC: 2025:KHC-D:3443-DB
25. Point No.(iv): As we have already answered
point Nos.(i) to (iii) in favour of the plaintiffs, accordingly,
we proceed to pass the following
ORDER
The Appeal is dismissed. The judgment and
preliminary decree dated 28.02.2020 passed in O.S.
No.109/2016 (Old No.50/2014) by the learned Senior Civil
Judge and JMFC, Banahatti, is hereby confirmed.
No order as to the cost.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
kmv
CT: BSB
