Allowed

Veeranna S/O. Ningappa Sonnad v. Ishappa S/O. Ningappa Sonnada

Karnataka HC21 Jan 2021RFA/4083/2013

Case brief

AI extract

What is this about?

Appeal by the defendants against a decree partly decreeing a partition suit and granting the plaintiff a 1/4th share in items (a) to (n). Re-appreciating the evidence, the High Court held that circumstances established the earlier partition of 1993, set aside the decree and dismissed the suit; applications for additional evidence were not allowed.

What did the court decide?

Appeal allowed; judgment and decree dated 04.12.2012 in O.S. No. 24/2009 set aside and the suit dismissed; no order as to costs.

Veeranna S/O. Ningappa Sonnad Vs Ishappa S/O. Ningappa Sonnada — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 21^ST DAY OF JANUARY, 2021

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PRESENT

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THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

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AND

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THE HON’BLE MR.JUSTICE P.N.DESAI

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R.F.A. NO. 4083/2013 (PAR/POS)

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BETWEEN:

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VEERANNA S/O NINGAPPA SONNAD, AGE: 62 YEARS, OCC.: AGRICULTURE & BUSINESS, R/O GAJENDRAGAD, TQ:RON, DIST.: GADAG-582 114.

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VENKAPPA S/O NINGAPPA SONNAD, AGE: 49 YEARS, OCC.: BUSINESS, R/O GAJENDRAGAD, TQ:RON, DIST.: GADAG-582 114.

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SMT. NIRMALA W/O MALLAPPA SONNAD, AGE: 39 YEARS, OCC.: HOUSEHOLD WORK, R/O GAJENDRAGAD, TQ:RON, DIST.: GADAG-582 114.

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MADHU S/O MALLAPPA SONNAD, AGE: 19 YEARS, OCC.: STUDENT, R/O GAJENDRAGAD, TQ:RON, DIST.: GADAG-582 114.

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SHALINI D/O MALLAPPA SONNAD, AGE: 16 YEARS, OCC.: STUDENT, R/O GAJENDRAGAD, TQ:RON, DIST.: GADAG-582 114. SINCE MINOR REPRESENTED BY MINOR GUARDIAN,

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I.E., APPELLANT NO.3 NATURAL MOTHER.

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MANOJ S/O MALLAPPA SONNAD, AGE: 15 YEARS, OCC.: STUDENT, R/O GAJENDRAGAD, TQ:RON, DIST.: GADAG-582 114 SINCE MINOR REPRESENTED BY MINOR GUARDIAN, I.E., APPELLANT NO.3 NATURAL MOTHER.

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SMT. MALLAWWA W/O RAVINDRA PATIL, AGE: 39 YEARS, OCC.: BUSINESS, R/O KARJAGI ONI, OLD HUBLI, HUBLI, DIST: DHARWAD-580 024.

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SMT. RADHAKKA W/O SRINIVAS @ BABU KOLAGAD, AGE: 34 YEARS, OCC.: HOUSEHOLD WORK, R/O NEAR SAMUHIK VIVAHAGAL KALYANA MANTAP, SONDUR ROAD, HOSPET, DIST: BELLARY-583 201.

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APPELLANTS

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(BY SRI. K.L. PATIL, ADVOCATE)

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AND:

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ISHAPPA S/O NINGAPPA SONNADA SINCE DECEASED BY HIS LR’S

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SMT. GANGAWWA W/O LATE ISHAPPA SONNAD, AGE: 48 YEARS, OCC.: HOUSEWIFE, R/O H.S. NO. 743, II FLOOR, 3^RD BLOCK, NEAR BASHAM CIRCLE, OPPOSITE S.B.H., RAJAJINGAR, BANGALORE-560 010.

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SHANKRAWWA D/O ISHAPPA SONNAD, AGE: 34 YEARS, OCC.: HOUSEHOLD WORK, R/O H.S. NO. 743, II FLOOR, 3^RD BLOCK, NEAR BASHAM CIRCLE, OPPOSITE S.B.H., RAJAJINGAR, BANGALORE-560 010.

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GEETA D/O ISHAPPA SONNAD, AGE: 32 YEARS, OCC.: HOUSEHOLD WORK, R/O H.S. NO. 743, II FLOOR, 3^RD BLOCK, NEAR BASHAM CIRCLE, OPPOSITE S.B.H., RAJAJINGAR, BANGALORE-560 010.

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VIJAY S/O ISHAPPA SONNAD, AGE: 30 YEARS, OCC.: PRIVATE SERVICE, R/O H.S. NO. 743, II FLOOR, 3^RD BLOCK, NEAR BASHAM CIRCLE, OPPOSITE S.B.H., RAJAJINAGAR, BANGALORE-560 010.

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RAJU S/O ISHAPPA SONNAD, AGE: 28 YEARS, OCC.: PRIVATE SERVICE, R/O H.S. NO. 743, II FLOOR, 3^RD BLOCK, NEAR BASHAM CIRCLE, OPPOSITE S.B.H., RAJAJINAGAR, BANGALORE-560 010.

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RESPONDENTS

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(BY SRI. A.S. PATIL, ADVOCATE)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 04.12.2012 PASSED IN O.S. NO. 24/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, RON & ETC.

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THIS REGULAR FIRST APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY, SREENIVAS HARISH KUMAR J., DELIVERED THE FOLLOWING:

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JUDGMENT

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All the defendants in O.S. No. 24/2009 on the file of the Senior Civil Judge, Ron, have preferred this appeal challenging the judgment and decree dated 04.12.2012 partly decreeing the suit for partition filed by the respondents in respect of the properties described as items (a) to (n) in para No.1 of the plaint. The suit has stood dismissed in respect of items (o) to (u).

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For the sake of convenience, parties are referred to with respect to their rank in the trial Court.

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The plaintiff, the first and the second defendants are brothers, the defendants 3, 4, 5 and 6 are all legal representatives of one Mallappa, the other brother of the plaintiff. Defendants 7 and 8 are the sisters of the plaintiff and defendants 1 and 2. The plaintiff claimed that properties described in items (a) to (u) belonged to the joint family of which his father Ningappa was the propositus. Some of the properties were owned by the joint family and the others, purchased from the income of the joint family. There was no division of the properties,

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he continued to be the member of the joint family though the brothers were divided in mess and residence. The plaintiff demanded the defendants to effect partition of all the joint family properties by issuing a legal notice dated 07.07.2009. The first defendant got issued a reply stating that there had taken place a partition on 03.05.1993.

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The first defendant filed written statement which was adopted by the other defendants. He very specifically contended that the joint family did not exist in view of partition dated 03.05.1993 in which the plaintiff was allotted a certain items of the property. He contended that the plaintiff sold the house property bearing no. TMC 40 to two persons, namely Fakkiravva daughter of Shankarappa and Laxmi Bai wife of V. Hanaji on 04.11.2008 for a sale consideration of Rs.60,000/- each. He also sold away the car given to his share. The first defendant contended that the oil mill that existed in property bearing T.M.C. No. 33, 33A and 33B was allotted to plaintiff. He suffered losses in the oil mill business; he could not pay power consumption charges, telephone bills

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and sales tax. He fell in due to K.S.F.C. The first defendant cleared all these dues to protect the reputation of the family and therefore the plaintiff, in lieu of payment made by the first defendant, executed a release deed in his favour relinquishing all his right and interest in respect of the property bearing T.M.C. No. 33, 33A and 33B. In view of these circumstances, the partition taken place in the year 1993 was acted upon. The plaintiff is not entitled to claim share.

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The trial Court raised five issues and then appreciating the evidence of the witnesses, came to conclusion that only items (a) to (n) belonged to the joint family and that rest of the properties described in the plaint as (o) to (u) were not available for partition and therefore decreed the suit partly. The actual findings given by the trial Court will be referred to later.

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We have heard the arguments of Sri K.L. Patil, learned counsel for the appellants and Sri A.S. Patil, learned counsel for the respondents 1 to 5 who are the

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legal representatives of the plaintiff, who died after passing of the judgment and before filing the appeal.

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It is the argument of Sri K.L. Patil that the trial Court has totally erred in placing burden of proof on the appellants, what he argues in this regard is that when the plaintiff pleaded that some of the items of the properties described in the plaint belonged to the joint family and that other items were acquired from the income of the joint family, the burden is on the plaintiff to prove initially that joint family exists and it is possessed of properties for effecting partition. The burden is also on the plaintiff to establish that some of the properties were acquired from the income of the joint family. The trial Court has wrongly come to the conclusion that defendants have failed to prove that some of the items described in the plaint belonged to the first defendant absolutely.

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The second point of argument is that evidence clearly shows that there had taken place a partition on 03.05.1993 in the presence of some panchayathdars. The first defendant could not produce the partition deed

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because the original was with the plaintiff. However, there is clear evidence indicating the circumstances from which inference can be drawn that a partition had taken place on 03.05.1993. He referred to Ex.D.20 and D.21 the sale deeds executed by the plaintiff in favour of Fakirawwa and Laxmi Bai, which transaction can be considered as one of the circumstances evidencing the earlier partition.

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The plaintiff who adduced evidence as PW1 admits in the cross-examination that he executed two sale deeds in respect of a house property that was allotted to him. It is not the case of the plaintiff that this house property was his self-acquisition. In addition to these sale deeds, there are two more documents marked Ex.D.1 and D.3 pertaining to Vijaya Oil Mill, which was allotted to the share of the plaintiff. It is the specific stand of the first defendant that the plaintiff failed to clear all the dues to the K.E.B, and K.S.F.C. and pay sales tax. He paid all these amounts and therefore the plaintiff gave up his interest in the properties by executing a release deed

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marked Ex.D.12. Thereafter, a partnership came into existence. Even in this partnership, the plaintiff was a partner. Later on he retired from the firm and it was reconstituted as per Ex.D.3 inducting the son of the first defendant as another partner. This is another circumstance evidencing partition, and therefore the trial Court should not have drawn an inference that the first defendant failed to prove previous partition.

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With respect to Ex.D.12, the release deed, which is not registered, Sri K.L. Patil argued that it can be used for the collateral purpose of proving severance of joint family. For all these reasons, it is his argument that the trial Court should not have partly decreed the suit.

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Sri K.L. Patil also submitted that when the sisters are on record as parties, the trial Court while partly decreeing the suit for partition, should not have allotted 1/4^th share to the plaintiff, the shares of the sisters should have been determined and there is no discussion on this point.

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In support of his argument he has placed reliance on (1) D.S. Laxmaiah and another Vs. L.Balasubramanyam and another (AIR 2003 SC 3800) and (2) Bhagwat Sharan (Dead Thr. Lrs.) v. Purushottam and Ors. (AIR 2020 SC 2361) .

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Sri A.S. Patil, learned counsel for the respondents argued that the trial Court has come to right conclusion to partly decree the suit. It has appreciated the evidence properly. The burden was on the defendant to prove severance of the joint family by establishing the past partition dated 03.05.1993. When it is not proved, the presumption is that joint family continued to exist and therefore the trial Court’s conclusions can not be held to be incorrect.

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Sri K.L. Patil submitted in reply that he has filed two applications, I.A. No.1/2020 and 2/2020 for production of some documents by way of additional evidence. One of the documents is copy of the partition deed dated 03.05.1993. The original is with the plaintiff and therefore the first defendant could produce only the Xerox

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copy. These applications are to be allowed for taking a just decision in the appeal.

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In the light of the above arguments, we frame the following points for discussion.

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Whether the applications, I.A. No. 1/2020 and 2/2020 deserve to be allowed?

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Whether the trial Court has rightly negatived the contention of the defendants about earlier partition of the year 1993 to grant ¼ share in the suit properties?

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15. Point No. 1: I.A. No. 1/2020 and 2/2020 are filed under Order 41 Rule 27 CPC by the appellant. Along with I.A. No. 1/2020 the appellants have produced two documents, namely the authorization letter dated 02.05.1993 and a partition deed dated 03.05.1990. Along with another the application, I.A. No. 2/2020 the appellants have produced 17 documents.

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So far as the first application is concerned, it is to be stated that these two are the Xerox copies which are inadmissible in evidence. The entire case of the defendants is founded on the premise that on 02.05.1993

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all the brothers furnished particulars of the properties to be divided, to the panchayathdars and based on this information, the panchayatdars effected partition on 03.05.1993. The defendants have clearly stated in the written statement that the original of the documents are with the plaintiff. The trial Court has observed very clearly that neither the plaintiff nor the defendants produced, at least a copy of the partition deed dated 03.05.1993, and this is the reason for giving a finding that specific contention of the defendants about the earlier partition dated 03.05.1993 is doubtful. It appears that the defendants did not issue notice to the plaintiff during the pendency of the suit seeking production of the original. Though some reasons are assigned for not being able to produce Xerox of the document during trial of the suit, we are of the opinion that even if this application is allowed it serves no purpose as the Xerox copies cannot be admitted in evidence.

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So far as I.A. No. 2/2020 is concerned, it is to be stated in the affidavit that has been filed along with the

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said application, a reference is made with respect to first defendant purchasing a plaint ‘b’ item on 07.11.1985. There is also a mortgage transaction of Mallappa in favour of K.S.F.C. We are of the opinion that these aspects should have been concisely pleaded in the written statement. Even if these documents are received on record, they can not be referred to for want of pleadings. Moreover, the appellants have not assigned valid reasons for their inability to produce these documents during pendency of the suit as envisaged within the scope of Order 41 Rule 27 CPC. Since we are of the opinion that this appeal can be disposed of without the aid of these documents, the applications need not be allowed.

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18. Point No.2:The findings given by the trial Court are that DW1 has admitted that the properties at sl. No. a, l and m of the plaint are ancestral. According to DW1 i.e., the first defendant, the properties at sl. nos. ‘b’, ‘c’, ‘d’ and ‘e’ are his self acquired. Even with respect to properties at sl. no. ‘h’, ‘i’ and ‘g’ the first defendant’s contention is that they are the self acquisitions but in

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respect of all the property that he claims to be his self acquired, he has failed to provide evidence as to on what date and from whom he purchased those properties. The trial Court has further held that the defendants have failed to prove earlier partition of the year 1993. No partition deed has been produced. There is no cogent evidence with regard to the earlier partition. Referring to the partnership firm-N.V.Sonnad & Co., the trial Court has observed that the evidence shows that it came into existence in the year 1976 and was closed on 31.03.1994. According to the plaintiff, first defendant was the managing partner. But, DW1 has stated that he was only a partner. Since he has stated that he was receiving share in the profits of the firm, he should have produced documents to show that from that income, he was able to purchase the property which he claims to be his self acquisition. There is no evidence in this regard at all and for this reason it is not possible to accept the contention of the first defendant that he purchased certain properties from his own earnings.

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Referring to the signatures of the plaintiff marked on Ex.D.1 and Ex.D.3, the trial Court is of the opinion that plaintiff appears to be in the habit of signing both in Kannada and English languages. Exercising its power u/s 73 of the Indian Evidence Act, it has held that the signatures found on Ex.D.1 and Ex.D.3 as per Ex.D1(a), (d), D3(a), (b), (c) and the Kannada signatures found on the deposition sheets, are all the signatures of the plaintiff. Even though an inference is drawn to this effect, yet the trial Court did not believe the partnership deedEx.D.1 because of the reason that the sentence with regard to sharing the profit and loss in the ratio of 90:10 is typed, whereas the rest of the contents of the document was typed on a Computer.

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Referring to the evidence given by D.W.2, the trial Court has drawn inferences that his evidence clearly shows that nobody applied for effecting mutation in the revenue records on the basis of earlier partition. In regard to D.12 and D.16 the evidence is not consistent. Moreover, they are unregistered release deeds. It is

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specifically stated that at the time when the plaintiff and Mallappa executed two release deeds as per Ex.D.12 and Ex.D.16, the elderly persons namely, Abdul Katarki, Yamanappa Vadahgol, Shivappa Vali, Kalakappa Myageri and Sanagnagowda Mallanagowda were said to be present. At least one of them should have been examined.

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With regard to property as described in Sl. No. (j) of the plaint, plaintiff has stated that though he sold it, but it was at the instance of the first defendant and that he did not receive the sale consideration amount at all. First defendant appropriated the money to himself. The trial Court has disbelieved the evidence of the plaintiff in this regard and has further expressed an opinion, whether he had right to sell item ‘J’ property. Having entertained a doubt with regard to right of the plaintiff, the trial Court yet came to conclusion that in the overall circumstances of the case, since the previous partition dated 03.05.1993 is not established and that the defendants admit that certain items of the properties belonged to the joint family, the plaintiff would be entitled to claim 1/4^th share

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in the properties described at sl. No. (a) to (n) and thus decreed the suit partly. While decreeing the suit like this, the trial Court directed further that while allotting 1/4^th share to the plaintiff, the sale made by him in respect of item ‘j’ property should be taken into account.

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We are of the opinion that after re-appreciating the evidence and taking into consideration the contentions urged by the learned counsel for the parties during argument, the findings of the trial Court are difficult to be accepted for the following reasons.

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REASONS

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In a suit for partition if the plaintiff claims share in the joint family properties, the burden is always on him to prove that the joint family owns properties that are available for partition. The general principle is that Hindu family is presumed to be joint, not only in respect of food, worship and residence, but also in respect of property holding. Severance in residence may not lead to conclusion that there is severance in property holding but severance of residence may lead to weakening of the

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presumption. The party who admits severance of joint family in food and residence should prove that there was no division of the properties of the joint family. Further, it may be stated that if the defendant or anyone of them where there are several defendants, takes up a contention about earlier partition, the burden is on that defendant to prove the earlier partition. If the plaintiff pleads that some of the properties were acquired from the nucleus of the joint family, again the burden is on him to prove that those properties were acquired from the nucleus of the joint family income. We have to examine the case on hand in the light of these principles.

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In this case, the plaintiff has pleaded very clearly that the properties described at sl. No. (a) to (u) in para 1 of the plaint belong to joint family of which his father Ningappa was the propositus. The trial Court has given a finding that properties (o) to (u) do not exist and this is not challenged by the plaintiff and therefore we are not concerned with item (o) to (u) properties.

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Since the defendant pleaded about earlier partition deed dated 03.05.1993, the burden was on them to prove that partition, or otherwise the properties should be considered to be of joint family. Ex.p.1 to 13 are the revenue and municipal records produced by the plaintiff in support of his case. Ex.P.1 is in respect of property bearing No. 86/2, Ex.P.2, in respect of 88/1 and Ex.P.3 in respect of 140/3. In all these documents the name of the first defendant is forthcoming and so also in Ex.P.4 and Ex.P.5. Ex.P.6 is in respect of property No. 38 of Gajendragad Town standing in the name of the plaintiff. Ex.P.7 shows that property No. 34 earlier stood in the name of Mallappa, the deceased brother of the plaintiff and the first defendant and on the basis of a varadi dated 17.09.2000, the name of first defendant was entered in the name of first defendant in the place of Mallappa. Ex.P.8 is in respect of property No. 33/B which earlier stood in the name of the plaintiff and thereafter the name of the first defendant was written on the basis of a varadi. Ex.P.9 is in respect of property No. 33 where the plaintiff’s name was earlier written and thereafter first

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defendant’s name came to be written. Ex.P.10 which is in respect of property No. 40, shows the name of the plaintiff. Ex.P.11 is in respect of property No. 604 which is shown to be the property of the partnership firm-N.V. Sonnad & Co. Ex.P.12 is in respect of two properties No. 474 and 474/A. In respect of 474, the plaintiff’s name is shown and in respect of 474/A, the names of defendants 3, 4 and 6 are shown. Ex.P.13 is in respect of property No. 419 where the plaintiff’s name was there earlier and thereafter the second defendant’s name came to be entered. Certainly these documents do depict a kind of transaction. But they are not helpful to arrive at conclusion that all these properties belong to joint family. In this regard Sri K.L. Patil, counsel for appellant offered an explanation that certain properties were purchased in the names of each son of Ningappa individually when Ningappa was alive and therefore they continued like that even after the division took place on 03.05.1993. We deal with this aspect little later.

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PW1 is the plaintiff himself. He has reiterated the plaint averments in the affidavit that he filed in lieu of examination in chief. The entire cross examination of PW1 shows that the defendants’ counsel sought to elicit from him that there had taken place partition in the year 1993 and it was in this view that some suggestions were given to him. It is the clear admission of PW1 that he and his brothers separated about 20 years ago and since then all of them started living separately; of course he has denied the suggestion that there was division of properties and affirms that the separation was only in respect of mess and residence. He admits that the partnership firm N.V. Sonnad & Co., was closed on 31.03.1993 and that he too was a partner in the said firm. But he does not admit another suggestion that before closure of N.V. Sonnad & Co., all the four brothers shared the profits. When he was questioned about the sale of a house bearing no. 40 at Gajendragad and sale of a car, in the first instance he did not admit the suggestion that he sold the house to two women namely, Fakirawwa and Laxmi Bai, but later on admitted it. But, about the sale of

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car, he did not admit it. Another circumstance that the defendants want to establish is clearing the dues of Vijaya Oil Mill by the first defendant and reconstitution of the partnership firm. PW1 has not admitted the suggestions that he was unable to clear the dues of KSFC and pay the telephone bill and electricity consumption charges and for this reason the firm was about to be closed. He has not admitted the suggestion that the first defendant cleared all the dues and that thereafter the first defendant took over the firm inducting him (PW1) as a partner, with an understanding that the profit and loss should be shared in the proportion of 90:10. When his attention was drawn to the partnership deeds and his signatures on them, he did not admit them. Ex.D.1(a) is the signature, which is not admitted by him. He also went to the extent of disowning his signatures as per Ex.D.2(a) and (b) in his evidence affidavit.

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When PW1 was questioned with regard to availment of loan by the first defendant from KSFC in the year 1997, he answered by admitting the suggestion that KSFC

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granted additional capital loan of Rs. 12 lakhs and unsecured loan of Rs. 21 lakhs to the first defendant. Exd.3(a), (b), (c), (d) and (e) are the other signatures that are disputed by him, and his answer is that he always signs in Kannada and never puts signature in English. He has also been questioned with regard to certain items of property allotted to each brother in the partition. When he was questioned further that the property bearing No. 33, 33B, was allotted to him in the partition, he did not admit it. He also denies the further suggestion that since the first defendant cleared all the dues and debts in relation to the oil mill, he relinquished all his claims over these two properties by executing a release deed.

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DW1 is the first defendant and DW2 is the second defendant. They both have asserted partition of all the joint family properties having taken place in the year 1993 itself. DW1 in particular has stated that some of the properties were his self acquisitions. His clear admission is that only those properties described in item no. (a) (l) and (m) belonged to the joint family. It was suggested to

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him that property No. 33 at item no. (n) was also a joint family property but he stated that it was the self acquisition of the plaintiff. When questioned about the partnership firm N.V. Sonnad & Co., he answered that he was maintaining the accounts of the firm, and has also admitted a further suggestion that he did not produce the books of accounts. With regard to oil mill it is his answer that it was the plaintiff who started it in the year 1992 and he closed it in the year 1996. Thereafter, he took it over in the year 1997 inducting the plaintiff as a partner along with him. He has denied the suggestion that the partnership deeds were created by him to suit his convenience. Very strangely a suggestion was given to him that he raised loan from KSFC in the year 1997 for running the oil mill.

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DW2 also asserts in the cross examination about the previous partition and has answered all the questions as to how the partition took place. Very clearly he has stated that in the partition, the plaintiff was given an oil mill, a house at Gouli Galli and a car. He has also stated

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about the shares given to his deceased brother Mallappa. According to him, the partnership firm N.V. Sonnad & Co., was closed in the year 1985 and thereafter the first defendant re-started it by changing its name as V.N.Sonnad & Co.

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DW3 and DW4 speak about the release deeds Exs.D.12 and 16.

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The other documents that the defendants have produced are, the partnership deeds as per Ex.D.1 and D.3, Form No. 5 as per Ex.D.4, and a loan agreement as per Ex.D.5. Ex.D.6 to D.11 are documents pertaining to loan transactions with KSFC. Ex.D.12 is a release deed. Ex.D.13 to 15 are khata extracts. Ex.D.16 is another release deed. D.17 is the mutation extract. D.18 and 19 are motor vehicle tax paid receipts. Ex.D.20 and 21 are copies of the two sale deeds in the name of Laxmi Bai and Fakirawwa. Ex.D.22 is copy of the letter issued by District Industrial Centre, Gadag to Electricity Supply Board. Ex.D.23 is a receipt issued by APMC Ron, Ex.P.24

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is a confirmation letter issued by APMC, Holealur.

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Ex.D.25 is a document issued by A.C.T.O.

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As has been held by the trial Court, the partition deed dated 03.05.1993 was not produced by the defendants, their explanation was that the original was with the plaintiff. If it is assumed to be true, the plaintiff might have thought not to produce it for the reason that according to him there was no partition of the properties. It is not impossible to draw this inference. However, it is to be seen now whether there are circumstances which help arrive at a conclusion that a partition might have taken place in the year 1993 among the brothers. The first circumstance to be pointed out is the sale of a house made by the plaintiff to Smt. Fakirawwa and Laxmi Bai as evidenced by Ex.D.20 and 21. As referred to above, the plaintiff, i.e., PW1, did not admit that he sold that house in two portions to the said women, however, he admitted it later on. If the defendants contend that the said house was allotted to the plaintiff in the partition, the latter refuted it and still contended that it belonged to the joint

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family despite having executed the sale deeds. Ex.D.20 and 21 indicate that those two sale deeds were executed by the plaintiff alone. If according to him the house still belonged to joint family, it is not understandable as to how he alone could execute the sale deeds. The trial Court has in fact, discussed this aspect of the matter but has failed to draw inferences. It is very pertinent to note that in the suit the plaintiff did not think it proper to implead his purchasers. Probably he might have omitted to implead them as according to him, the properties still remained in the joint family hold. These two sale deeds were executed on 04.11.2008. And they cannot be simply ignored as they afford a strong circumstance in support of the defendants’ contention about the partition of the year 1993. It is quite strange that the plaintiff asserted that these two properties belong to joint family knowing very well that he himself had executed the sale deeds.

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The other circumstance is coming into being of two partnership deeds as per Ex.D.1 and D.3. The plaintiff has denied these two partnership deeds and has also

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denied his signatures. The trial Court has given a finding that the signatures found on them are that of the plaintiff. As stated in the plaint, the oil mill is situated in property No. 33, it is shown item no. (n) of the plaint. According to the defendants the properties bearing Nos. 33, 33A and 33B were allotted to the plaintiff in the partition and he was running an oil mill there. Therefore, existence of oil mill is not disputed. The defendants have clearly stated that when the plaintiff could not clear the loan and pay other consumption charges, first defendant cleared them and took over the entire oil mill unit. Ex.D.1 and D3 are the documents in this regard. Ex.D.1 clearly shows that the first defendant and the plaintiff became the partners of Vijaya Oil Mill on 18.02.1997. The trial Court has not believed this document to be genuine because of the reason that the profit and loss sharing ratio appears to have been inserted at a later stage. It is true that this part is typed with a typewriter; whereas the rest of the contents were typed on a computer. This itself cannot be a reason for disbelieving the document. Probably noticing an error in not mentioning the ratio of sharing the profit

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and loss, that clause might have been inserted by using a typewriter. Later on the plaintiff was removed from the firm and the first defendant inducted his son as another partner which is evidenced by Ex.D.3. Even to this document the plaintiff is a signatory. He might have denied his signature but it is quite clear that he has denied the signature intentionally.

¶120

Reconstitution of the partnership firm as per Ex.D.3 finds corroboration from two other documents, Ex.D.4 and Ex.D.5. Ex.D.4 is Form No.5 filed before the Registrar of Firms and Ex.D.5 is a letter addressed by KSFC to Vijaya Oil Mill on 05.05.1997. There is another document as per Ex.D.9 which is again a letter addressed by KSFC to the plaintiff. In Ex.D.9, “To address” written is, Sri Ishwar N. Sonnad, M/s Vijaya Oil Mill, Gajendragada. Therefore, the inferences that can be drawn from these documents are that earlier the oil mill was owned by the plaintiff, and then as has been contended by the defendants, the plaintiff might have failed to clear the dues of the mill; and the first defendant having cleared them might have

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¶122

taken over the mill by constituting a partnership with the plaintiff as per Ex.D.1. All the answers that the plaintiff has given in the cross examination with regard to coming into existence of the partnership firm cannot be believed to be true.

¶123

It is very pertinent to mention here that by disowning his signatures on his affidavit filed in lieu of examination in chief, he has proved himself to be untrustworthy witness. Moreover, as has been observed by the trial Court he is in the habit of putting signatures both in Kannada and English languages. He has signed the plaint in Kannada. His affidavit contains his English signatures. The deposition sheet pertaining to further examination in chief contains English signature whereas the deposition sheets of the cross examination part contains his Kannada signatures. Therefore, deliberately the plaintiff might have denied his signatures on the partnership deeds. It is true that in the cross examination the first defendant, i.e., DW1, might have answered that the property where the oil mill is in

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¶125

existence earlier belonged to the plaintiff as it was his self acquisition but it is just a stray answer. When the plaintiff himself says that this property also belongs to joint family, it may be held that at one point of time it belonged to joint family and that the first defendant acquired it having cleared the dues. If property nos. 33, 33A and 33B had not been allotted in the partition, there was no necessity of the plaintiff giving up his right in the oil mill and for coming into existence of the partnership firms. This is another circumstance that the evidence discloses regarding the partition of the year 1993.

¶126

The first defendant has strongly contended that the plaintiff as also his another brother Mallappa (while alive) executed two release deeds as per Exs.D.12 and D.16. These are unregistered release deeds. They should not have been admitted in evidence. However, they were marked. They cannot be considered as valid release. Ex.D.12 shows that the plaintiff relinquished all his rights with respect to property No. 33 and 33B and that Mallappa released his rights in respect of property No. 140/3. For

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¶128

want of registration, the transaction of release as indicated in these documents do not get legal sanctity in view of Sec. 17 of the Indian Registration Act. But, Ex.D.13, 14 and 15 show that by virtue of the release as per Ex.D.12, the first defendant got the Municipal Records pertaining to the properties transferred to his name and so also Ex.D.17 shows the mutation in favour of the first defendant on the basis of Ex.D.16. Let these transactions be as they may, mere transfer of khata do not confer any title as the basic documents of transfer are not recognizable in the eye of law. DW1 has been extensively cross examined on the release deeds. Inspite of his vehement stand about coming into being of the release deeds, and although the deeds are unregistered, Ex.D.12 provides an inkling to the taking place of earlier partition, there it is clearly written that a partition took place on 03.05.1993. This is another circumstance indicative of earlier partition. To this extent, Ex.D.12 can be acted upon for collateral purpose as envisaged u/s 49 of the Indian Registration Act. The plaintiff might have

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¶130

answered that the first defendant obtained his signatures on blank papers, but they are not believable at all.

¶131

With regard to another partnership firm V.N.Sonnad & Co., it is true that DW1 has stated that he commenced it and it is his independent partnership firm. This stand of DW1 may not be correct as DW2 has stated that the earlier firm in the name of N.V.Sonnad & Co., was closed and thereafter the first defendant started the firm V.N.Sonnad & Co. Although the answer of DW1 is difficult to be believed, the evidence shows that the firm N.V.Sonnad & Co., came to be closed when all the four brothers were joint. This part of the evidence does not in any way demolish the defendants’ stand about earlier partition of the year 1993. For this reason it is not impossible to draw an inference that some of the items that the defendants assert to be their self acquisitions can be believed. The trial court’s finding that the first defendant has failed to prove about his self-acquisition cannot be accepted.

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Sri K.L. Patil submitted that when joint family existed during the lifetime of the propositus, properties were purchased in the individual names of sons of the propositus, and therefore after the partition, obtaining of mutation on the basis of partition did not arise. Since there is preponderance of probability in the case putforth by the defendants, Sri K.L. Patil’s submissions appears to be acceptable.

¶134

Therefore, although there is no documentary proof for the partition dated 03.05.1993, as discussed above, the circumstances do very well establish it. The trial court’s finding that there is no proof for partition, cannot be upheld. In fact what is to be mentioned here is that the findings of the trial Court appear to be half hearted in the sense that it has arrived at a conclusion to grant partition in the properties only for the reason that the partition deed dated 03.05.1993 was not produced during trial. It ought to have examined about the earlier partition in the background of circumstances. Therefore the trial Court’s findings are not correct in this regard.

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¶136

In view of the above discussion we arrive at a conclusion that this appeal deserves to be allowed. Hence, the following order.

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ORDER

¶138

Appeal is allowed. Judgment and decree dated 04.12.2012 passed in O.S. NO. 24/2009 on the file of the Senior Civil Judge, Ron is set aside. Consequently, suit is dismissed.

¶139

There is no order as to costs.

¶140

SD JUDGE

¶141

SD JUDGE

¶142

bvv

Veeranna S/O. Ningappa Sonnad v. Ishappa S/O. Ningappa Sonnada

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Veeranna S/O. Ningappa Sonnad v. Ishappa S/O. Ningappa Sonnada

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