Appeal by a former joint family member against a lower court decree declaring suspected joint property, holding a partition deed void due to fraud, and awarding shares to all heirs. The High Court finds no substantial question of law.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 08TH DAY OF DECEMBER, 2022
BEFORE
THE HON’BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.100398 OF 2021 (PAR/INJ)
BETWEEN:
MADHUKAR S/O KRISHNA NAYAK AGE: 83 YEARS, OCC: PRIVATE WORK, R/O: BAGGON, TQ: KUMTA, DIST: UTTAR KANNADA – 581 332. …APPELLANT (BY SRI. MAHESH WADEYAR., ADVOCATE)
AND:
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AGE: 80 YEARS, OCC: AGRICULTURE R/O: DESHPANDE NAGAR, HUBBALLI – 580 029.
…RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 10.03.2021 PASSED BY THE SENIOR CIVIL JUDGE AT BHATKAL IN R.A.NO.31/2019 CONFIRMING THE JUDGMENT AND DECREE DATED 17.07.2019 PASSED BY THE PRL. CIVIL JUDGE BHATKAL IN O.S.NO. 39/2015.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Sri. Mahesh Wodeyar., learned counsel for the
appellant has appeared in person.
under:
It is stated that plaintiffs and defendants 1 to 5 are legal representatives of the original Propositus - Sri. Krishna Subraya Nayak. The Propositus died leaving behind his legal heirs.
It is stated that the suit scheduled property bearing Sy.No.51/12+13 measuring 02-01-00 (A.G.A) out of which 01-17-00 (A.G.A) situated at Bengre-1 Village of Bhatkal Taluk was mulageni property of Krishna Subraya Nayak and is a joint family property. The first defendant being elder member of the family, filed an application in Form No. 7(A) before the Land Tribunal. The Land Tribunal granted
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occupancy right under LRM No.7A Bengre-1-58-17-86 on 12.04.2006.
It is further stated that the son of defendant No.3 – Sandeep Sadanand Nayak had also filed an application before the Land Tribunal seeking occupancy right and the same came to be rejected by Land Tribunal on the ground that he is also one of the family members of defendant No.1. It is contended by the plaintiffs that they are having undivided right over the suit schedule property and they are in joint possession of the same.
It is averred by the plaintiffs that the joint family properties are already partitioned as per the registered partition deed dated 08.01.2013 with the consent of all parties to the said deed. It is said that the suit schedule property was not included in the said partition since defendant No.1 misguided the plaintiffs stating that there is a non-alienation clause for a period of 15 years in respect of the said property. It is said that they believed the words of defendant No.1 and other defendants hence, the said
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property was not included in the earlier partition. Contending that they have an equal share in the suit schedule property, plaintiffs filed a suit for partition and separate possession and injunction.
After service of the suit summons, defendants 1 to 5 & 7 appeared through their counsel. Defendant No.6 did not appear and hence was placed exparte . Defendant No.1 filed a written statement and contended that the suit schedule property is his absolute property and separate property. He contended that he filed Form No.7A and the Land Tribunal granted occupancy right in his name exclusively. It is also contended that he never acted as Manager of a joint family.
Defendant No.1 by way of counterclaim, claimed partition claiming 1/6th share in the written statement schedule properties canceling the partition deed dated 08.01.2013. Among other grounds, he prayed to dismiss the suit and to allow the counterclaim.
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The Defendant No.5 filed a written statement admitting the claim of the plaintiffs. The defendants 2, 3 and 4 adopted the written statement filed by defendant No.5.
framed the following issues:
ISSUES
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To substantiate the claim, the first plaintiff was examined as PW1 and produced five documents which were marked as Ex.P.1 to Ex.P.5. On the other hand, defendant No.3 was examined as DW1, defendant No.1 was examined as DW2 and defendant No.7 was examined as DW3. They produced eight documents which were marked as Ex.D.1 to Ex.D.8.
On the trial of the action, the plaintiff’s suit was decreed and it was held that plaintiffs are together entitled to 1/5th share in the suit schedule property by partition and separate possession. Defendants 1 to 3 & 5 is entitled to 1/5th share each in the suit schedule property by partition
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and separate possession. The plaintiffs together and defendant No.2, 3 & 5 are entitled to 1/5th share in the written statement schedule properties by partition and separate possession. It was also declared that the Partition deed dated 08.01.2013 is not valid and not binding on defendant No.1.
The first defendant challenged the Judgment and Decree of the Trial Court. On appeal, the First Appellate Court confirmed the Judgment and Decree of the Trial Court and modified it as under:
“The appeal filed by the Appellant/ the defendant No.1 under Order 41 Rule 1 r/w Sec.96 of the CPC is hereby dismissed. The cross appeal filed by the respondent Nos.1 to 3/ the plaintiffs under Order 41 Rule 22 of the CPC is also hereby dismissed.
The judgment and decree passed by the Trial Court is hereby confirmed with the modification.
That the plaintiffs being the legal heirs of Prabhakar S/o.Krishna Nayak, the defendant Nos.1 to 3 and 5 are entitled to 1/5th share in
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the suit schedule and the written statement schedule properties.
Further, it is declared that the registered partition deed dated 08.01.2013 bearing Document No. I 1685/12-13 registered at the office of the Sub-registrar, Bhatkal, U.K. District has been obtained on playing fraud and it is adjudged as void and accordingly, the same has been canceled in its entirety.
The office is directed to intimate the Sub Registrar, Bhatkal, U.K. District along with the copy of the decree intimating him to endorse the cancellation of the registered partition deed dated 08.01.2013 on the copy of the instrument contained in their registers.”
Aggrieved by the Judgment and Decree of the First Appellate Court, the first defendant has filed this Regular Second Appeal under Section 100 of CPC.
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The suit giving rise to this appeal was filed by the plaintiffs seeking the relief of Partition and separate possession and for a decree of a permanent injunction. The first defendant filed a counter claim.
The relationship between the parties to the lis is not in dispute.
The plaintiffs contended the joint family owned several properties. The joint family properties are partitioned. The property bearing Sy.No.51/12+13 measuring 02-01-00 (A.G.A) situated at Bengre-1 Village of Bhatkal Taluk is a granted land and the same was not partitioned believing the words of defendant No.1 that there is a non-alienation clause for a period of 15 years in respect of the said property.
Suffice it to note that Defendant No.1 by way of counterclaim, claimed partition claiming 1/6th share in the written statement schedule properties by canceling the partition deed dated 08.01.2013.
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Sri.Mahesh Wodeyar., learned counsel for the
appellant in presenting his argument submits that the Courts below have erred in holding that suit property i.e., Sy.No.51/12+13 measuring 02-01-00 (A.G.A) situated at Bengre-1 Village of Bhatkal Taluk is a joint family property. He submits that defendant No.1 had filed Form No.7A in his individual capacity and the Land Tribunal granted occupancy right in his name. Hence, the said property is not a joint family property.
I have considered the submission with utmost care.
The Trial Court extenso referred to the material on record and concluded that the suit schedule property i.e., Sy.No.51/12+13 measuring 02-01-00 (A.G.A) situated at Bengre-1 Village of Bhatkal Taluk is a mulageni property. The first defendant filed Form No.7A and it was granted in the name of the first defendant as a elder member of the joint family. Hence the Trial Court concluded that plaintiffs and defendants 1 to 3 & 5 are entitled to 1/5th share each in
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the suit schedule property by partition and separate possession. The defendant No.1 is entitled to 1/5th share in the written statement schedule properties by partition and separate possession.
On appeal, the Appellate Court re-appraised the material on record and confirmed the Judgment and Decree of the Trial court. The First Appellate Court declared that the plaintiffs being the legal heirs of Prabhakar S/o.Krishna Nayak, the defendant Nos.1 to 3 and 5 are entitled to 1/5th share in the suit schedule and the written statement schedule properties. Further, it is declared that the registered partition deed dated 08.01.2013 bearing Document No. I 1685/12-13 registered at the office of the Sub-registrar, Bhatkal, U.K. District has been obtained on playing fraud and it is adjudged as void and accordingly, the same has been canceled in its entirety and directed the office to intimate the Sub Registrar, Bhatkal, U.K. District along with the copy of the decree intimating him to endorse the cancellation of the registered partition deed dated
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08.01.2013 on the copy of the instrument contained in their registers.
The Trial Court in extenso referred to the evidence on record and decreed the suit. The First Appellate Court has examined the evidence on record and reappraised it. I am satisfied it has been appreciated from the correct perspective. I find it necessary only to say this much that I am not prepared to differ from the view taken by the Trial Court and by the Court of appeal as to the question of fact.
No substantial question of law arises for consideration in this appeal.
It is perhaps well to observe here that the after the 1976 amendment, the scope of Section 100 of CPC has been drastically curtailed and narrowed down. The High Court would have jurisdiction of interfering under Section 100 of CPC only in a case where a substantial question of law is involved and those questions have been clearly formulated in the memorandum of appeal. No substantial
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questions of law arise for consideration in this second appeal.
As a result, I find no merit in this appeal, and
accordingly, it is dismissed at the stage of admission.
Sd/JUDGE
TKN
3 issues framed by the court
Whether the suit property is a joint family property or the appellant's absolute property.
Whether the registered partition deed dated 08.01.2013 was obtained by fraud and is void.
Whether this appeal involves a substantial question of law under Section 100 of CPC.
Madhukar S/o Krishna Nayak
Smt. Pushpa W/o Prabhakar Nayak
Sri. Pavan S/o Prabhakar Nayak
Sri. Rohit S/o Prabhakar Nayak
Sri. Shivanand S/o Krishna Nayak
Sadanand S/o Krishna Nayak
Jyoti Mulimani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
