Dismissed

Sri. Venkappa S/O Ogundappa Budakunti @ Shetsanadi v. Sri. Bheemappa @ Ajjappa S/O Hanumappa Budakunti

Karnataka HC22 Nov 2024RSA/100129/2018

Case brief

AI extract

What is this about?

Second appeal by defendant against concurrent decrees for declaration and injunction over suit land allotted to plaintiff under a memorandum of family partition. Held Ex.P1 merely recorded a prior oral partition, was not compulsorily registrable; res judicata plea failed. Appeal dismissed.

What the court decided

AI extract

Sri. Venkappa S/O Ogundappa Budakunti @ Shetsanadi Vs Sri… — Partition | Karnataka HC (2024)

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NC: 2024:KHC-D:17041 RSA No. 100129 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 22^ND DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

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RSA NO. 100129 OF 2018 (DEC/INJ)

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BETWEEN:

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SRI. VENKAPPA S/O. GUNDAPPA BUDAKUNTI @ SHETSANADI, AGE: 43 YEARS, OCC. AGRICULTURE, R/O. HIRE ARALIHALLI, TQ. YELBURGA, DIST. KOPPAL-583236.

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… APPELLANT

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(BY SRI. V. G. BHAT, ADVOCATE)

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AND:

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SRI. BHEEMAPPA @ AJJAPPA S/O. HANUMAPPA BUDAKUNTI @ SHETSANADI, AGE: 35 YEARS, OCC. AGRICULTURE, R/O. HIREARALIHALLI, TQ. YELBURGA, DIST. KOPPAL-583236.

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Digitally signed by VISHAL VISHAL NINGAPPA NINGAPPA PATTIHAL PATTIHAL Date: 2024.12.18 10:07:37 +0530

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… RESPONDENT (BY SRI. P. G. MOGALI, ADVOCATE)

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THIS RSA IS FILED U/S.100 OF CPC.,1908, AGAINST THE JUDGMENT AND DECREE DATED 09.01.2018 PASSED IN R.A.NO.25/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., YELBURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 18.08.2014 PASSED IN O.S.NO.44/2009 ON THE FILE OF THE CIVIL JUDGE, YELBURGA, DECREEING THE SUIT FILED FOR DECLARATION AND INJUNCTION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

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NC: 2024:KHC-D:17041 RSA No. 100129 of 2018

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ORAL JUDGMENT

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Assailing the concurrent findings of fact recorded by

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the Courts below, the defendant is before this Court in this regular second appeal.

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Parties herein are referred to as per their rank before the trial Court for the sake of convenience.

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Suit for declaration and injunction in respect of Sy. No.137/A measuring 2 acre 26 guntas (hereinafter referred to as ‘suit property’) out of 7 acre 36 guntas. The case of the plaintiff is that Sy. No.137/A totally measuring 07 acres 36 guntas was the ancestral joint family property of the plaintiff and defendant, in the family partition, the western side measuring 2 acres 26 guntas of Sy. No.137 the suit property was allotted to the share of the plaintiff and the plaintiff is the absolute owner, a deed of memorandum of partition was prepared on 15.04.2002, however, the plaintiff was unable to get their name entered in the revenue records in respect of the suit

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property, taking disadvantage of this, the defendant denied the title of the plaintiff over the suit property and tried to dispossess the plaintiff, hence, the suit for declaration and injunction over the suit property.

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Defendant averred that Sy. No.137 was totally measuring 15 acres 23 guntas, suit survey was sanadi inam land attached to the survey of village officers, the father and the fore father of the defendant rendered service to the village officers, and the suit survey number was granted towards the service rendered by them.

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After the demise of the father of the defendant,

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his brother-Hanumappa was holding the same and subsequently the village office was abolished and the land attached to the service reserving the right of the holders to seek the re-grant as per the Karnataka Village Abolition Act, 1961 and accordingly, the defendant filed an application for re-grant of the said land in his favor and also in favor of father of the plaintiff and after enquiry, the Assistant Commissioner by the order dated 26.11.1975 re-

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granted the suit survey number in favor of the holders. That the plaintiff and defendant partitioned the suit survey number and the suit property fell to the share of defendant. Accordingly, the name of the defendant was entered in the revenue records pertaining to the suit property. The non-suit land bearing Sy. No.137/E to the west side of the suit property fell to the share of the father of the plaintiff and that the father of the plaintiff mutated his name in respect of non-suit land bearing Sy. No.137/E. That as the father of the plaintiff during the year 1990 obstructed the possession of the suit property, the defendant filed a suit for injunction against the father of the plaintiff in OS No.79/1980, suit was decreed in his favor and the findings recorded in OS No.79/1980 operates as a res judicata and is hit by Order II Rule 2.

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On the basis of the pleadings, the trial Court framed the following issues:

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(1) Whether the plaintiff proves that he is the absolute owner in possession over the suit property?

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(2) Whether defendants proves that in a partition effected between plaintiff and defendants the suit land has been allotted to the defendant accordingly the name of the defendant entered to suit land?

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(3) Whether defendant proves that O.S.No.79/90 operates as resjudicata and also hits U/o 2 Rule 2 of CPC as such suit is not maintainable?

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(4) Whether defendants proves that in view of admission of file add possession of defendant in O.S.79/1990 the present suit for declaration and injunction is maintainable?

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(5) Whether the plaintiff is entitled for relief as prayed?

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(6) What order or decree?”

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In order to substantiate their claim, the plaintiff

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examined himself as PW.1 three witnesses as PW.2 to PW.4 and marked documents at Exs.P1 to P4. On the other hand, the defendant examined himself as DW.1 examined two witnesses as DW.2 and DW.3 and marked documents at Ex.D1 to D10.

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The trial Court based on the pleadings, oral and

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documentary evidence arrived at a conclusion that;

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i) The plaintiff has proved that he is the

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absolute owner and in possession of the suit property.

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ii) That the defendant has failed to prove that in the partition effected between the plaintiff and defendant, the suit land has been allotted to the defendant. Accordingly, the name of the defendant is entered in the suit land.

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By the judgment and decree, the trial Court decreed the suit holding that the plaintiff is the absolute owner of the suit property and restrained the defendant from interfering with the plaintiff possession and enjoyment of the suit property.

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Aggrieved, the defendant preferred appeal before the First Appellate Court. First Appellate Court while re-appreciating the entire oral and documentary evidence affirmed the judgment and decree of the trial Court. Aggrieved, the defendant is before this Court.

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Heard the learned counsel appearing for

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appellant and the learned counsel appearing for

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respondent and perused the material on record.

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Learned counsel for the appellant vehemently contended that the oral partition is not proved by the plaintiff and the Courts below were not justified in holding that there was an oral partition, followed by a memorandum of partition. That the oral partition or an unregistered partition cannot confer any right, title or interest in favor of the plaintiff, the document at Ex.P1 relied by the plaintiff to establish partition requires compulsory registration as provided under Section 17(1) Indian Registration Act, 1908 (hereinafter referred to as ‘the Act’ for short).

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Per contra, learned counsel appearing for the respondent justifies the judgment and decree of the trial Court and contends that Ex.P1 though an unregistered document, it is not for the first time the rights have been incorporated under the document, it is a document

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wherein a prior partition have been recorded and Ex.P1 does not require a compulsory registration. Further, it is contended that the defendant has admitted his signature at Ex.P1, what is disputed according to them is that it has been obtained by fraud. The Courts below have rightly assessed and appreciated Ex.P1 and arrived at a conclusion that the defendant has failed to prove that Ex.P1 is obtained by fraud. The contention of the defendant that the grant to the extent of 7 acres 36 guntas in Sy. No.137 out of 15 acres was granted in favor of Hanumappa-the father of the plaintiff is not evidenced by any document as rightly held by the Courts below and the concurrent finding of fact does not warrant any interference and sought for dismissal of the appeal.

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This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record.

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The relationship between the plaintiff and defendant is not in dispute. It is also not in dispute that

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there is a grant in respect of Sy. No.137 as per Ex.P1, wherein it has been granted in favor of Hanumappa Jagal and the defendant. It is the contention of the defendant that an application for re-grant was filed by the defendant to grant the lands in favor of the father of the plaintiff namely Hanumappa, which is not evidenced by any document.

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On the other hand, Ex.D1 indicates the name of one Hanumappa Jagal and the name of the defendant entered to the extent of 7 acres 37 guntas in respect of Sy. No.137. Defendant contends that under Ex.D1 Grant in the name of Hanumappa Jagal is non other than the Plaintiff’s father and in light of the grant to the extent of half share, the plaintiff is not entitled for share in the grant of defendant which is his individual name. The defendant other than mere assertion, there is no clinching evidence oral or documentary to evidence that the Hanumappa shown in Ex.D1 is the father of the plaintiff, in the absence of any corroborative evidence, the Courts below were

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justified in disbelieving the contention of the defendant. O.S No 79/1990 filed by the defendant was against one Hanamappa Jaggal and Shankrawwa, DW.1 in his crossexamination clearly admitted that the said Hanamappa Jaggal and the father of the plaintiff were different persons, the decree in favor of the defendant is not against the father of the plaintiff but, against third persons, which cannot be termed against the plaintiff and for the benefit of the defendant and the Courts below rightly held that title and possession held in favor of the defendant in O.S No.79/1990 does not operate as res judicata against the present suit.

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Plaintiff places his reliance on Ex.P1 to contend

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that under Ex.P1 Memorandum of Partition, suit property fell to the share of plaintiff, defendant attacks Ex.P1 on two counts;

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Signature on Ex.P1 is obtained by fraud, misrepresentation.

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Ex.P1 is a document which requires

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registration.

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Ex.P1 is the document termed as («¨sÁUÀzÀ £É£À¦£À

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n¥ÀàtÂ), defendant contended that his signature and the

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signature of the attested witnesses have been fabricated been taken by misrepresentation. When the defendant sets up a plea of misrepresentation etc., the burden is on the defendant to prove that the signatures obtained on Ex.P1 was by making misrepresentation other than the mere averment in one sentence in the written statement,

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there is no specific averment as to how fraud and misrepresentation has been played by the plaintiff on defendant, in the absence of any specific pleading about the fraud and misrepresentation played by the plaintiff, the trial Court rightly arrived at a conclusion that the plea of the defendant that his signature was obtained on the blank paper cannot be accepted.

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In so far as the contention of the appellant that

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Ex.P1 is a document which requires registration and without registration, the said document cannot be looked into. The trial Court while appreciating Ex.P1 which is a memorandum of partition arrived at a conclusion that for the first time, the rights are not been divided under the partition deed, it was recording of prior partition which was incorporated under the deed in Ex.P1 and arrived at a conclusion that the registration of Ex.P1 was not necessary. The law is well settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or legal relation to the property divided amongst the parties to it, requires registration under Section 17(1)(b) of the Act. However, a writing which merely recites that there has in time past been partition, is not declaration of will, but a mere statement of fact, and it does not require registration. The three Bench of the Apex Court in the case of Kale and

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Others Vs. Deputy Director of Consolidation and

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Others¹ held at para Nos.10 and 25 as under;

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“10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

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“(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

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(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

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(3) The family arrangement may be even oral in which case no registration is necessary;

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(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been

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1 AIR 1976 SC 807

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made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;

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(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;

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(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.”

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25 . It would be seen that when the name of Appellant 1 Kale was mutated in respect of the

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khatas by the Naib Tahsildar by his order dated December 5, 1955 which is mentioned at p. 4 of the paper-book Respondents 4 & 5 filed an application for setting aside that order on the ground that they had no knowledge of the proceedings. Subsequently a compromise was entered into between the parties a reference to which was made in the compromise petition filed before the revenue court on August 7, 1956. A perusal of this compromise petition which appears at pp. 15 to 18 of the paper-book would clearly show two things — (1) that the petition clearly and explicitly mentioned that a compromise had already been made earlier; and (2) that after the allotment of the khatas to the respective parties the parties shall be permanent owners thereof. The opening words of the petition may be extracted thus:

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“It is submitted that in the above suit a compromise has been made mutually between the parties.

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It would appear from the order of the Assistant Commissioner, First Class, being Annexure 4 in writ petition before the High Court, appearing at p. 19 of the paper-book that the parties sought adjournment from the Court on the ground that a compromise was being

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made. In this connection the Assistant Commissioner, First Class, observed as follows:

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“On January 11, 1956 Mst Har Pyari and Ram Pyari gave an application for restoration in the court of Naib Tahsildar on the ground that they were not informed of the case and they were aggrieved of his order passed on December 5, 1955. On this application he summoned the parties and an objection was filed against the restoration application. The parties sought adjournment on the ground that a compromise was being made.

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The parties filed compromise before the Naib Tahsildar according to which two lists were drawn, one of these is to be entered in the name of Kale and the other in the name of Har Pyari and Ram Pyari.”

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This shows that even before the petition was filed before the Assistant Commissioner informing him that a compromise was being made, the parties had a clear compromise or a family arrangement in contemplation for which purpose an adjournment was taken. These facts coupled together unmistakably show that the compromise or family arrangement must have taken place orally before the petition was filed before the Assistant Commissioner for mutation of the names of the parties in pursuance of the

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compromise. The facts of the present case are therefore clearly covered by the authorities of this Court and the other High Courts which laid down that a document which is in the nature of a memorandum of an earlier family arrangement and which is filed before the court for its information for mutation of names is not compulsorily registrable and therefore can be used in evidence of the family arrangement and is final and binding on the parties. The Deputy Director of Consolidation, Respondent 1 as also the High Court were, therefore, wrong in taking the view that in absence of registration the family arrangement could not be sustained. We might mention here that in taking this view, the High Court of Allahabad completely overlooked its own previous decisions on this point which were definitely binding on it. This, therefore, disposes of the first contention of the learned counsel for the respondents that as the family arrangement having been reduced into the form of a document which was presented before the Assistant Commissioner was unregistered it is not admissible and should be excluded from consideration.”

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The Apex Court in the case of Roshan Singh

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and Others Vs. Zile Singh and Others² held at para

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Nos. 10, 15 and 16 as under;

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“10. The tests for determining whether a document is an instrument of partition or a mere list of properties, have been laid down in a long catena of decisions of the Privy Council, this Court and the High Courts. The question was dealt with by Vivian Bose, J. in Narayan Sakharam Patil v. Coop. Central Bank [Narayan Sakharam Patil v. Coop. Central Bank, 1937 SCC OnLine MP 103 : ILR 1938 Nag 604] . Speaking for himself and Puranik, J. the learned Judge relied upon the decisions of the Privy Council in Bageshwari Charan Singh v. Jagarnath Kuari [Bageshwari Charan Singh v. Jagarnath Kuari, 1931 SCC OnLine PC 86 : (1931-32) 59 IA130]and Subramonian v. Lutchman [Subramo nian v. Lutchman, 1922 SCC OnLine PC 76 : (1922-23) 50 IA 77] and expressed as follows:

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It can be accepted at once that mere lists of property do not form an instrument of partition and so would not require registration, but what we have to determine here is whether these

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2 AIR 1988 SC 881

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documents are mere lists or in themselves purport to “create, declare, assign, limit or extinguish … any right, title or interest” in the property which is admittedly over Rs 100 in value. The question is whether these lists merely contain the recital of past events or in themselves embody the expression of will necessary to effect the change in the legal relation contemplated.”

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15. This view was adopted by the Privy Council in subsequent decisions and the High Courts in India. To the same effect is the decision of this Court in Sahu Madho Das v. Mukand Ram [Sahu Madho Das v. Mukand Ram, (1955) 2 SCR 22 : AIR 1955 SC 481] . The true principle that emerges can be stated thus: If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through the transferor. If, on the other hand, the parties set up competing titles and the differences are resolved by the compromise, there is no question of one deriving title from the other, and therefore the arrangement does not fall within the mischief of

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Section 17 read with Section 49 of the Registration Act as no interest in property is created or declared by the document for the first time. As pointed out by this Court in Sahu Madho Das case, it is assumed that the title had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary.

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16. In the present case, admittedly there was a partition by metes and bounds of the agricultural lands effected in the year 1955 and the shares allotted to the two branches were separately mutated in the revenue records. There was thus a disruption of joint status. All that remained was the partition of the ancestral residential house called rihaishi, the smaller house called baithak and ghers/ghetwars. The document Ext. P-12 does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property. A mere agreement to divide does not require registration. But if the writing itself effects a division, it must be registered. See :Rajangam Ayyar v. Rajangam Ayyar (1923) 69 Ind Cas 123:(AIR 1922 PC 266) and Nani Bai v. Gita Bai, AIR 1958 SC 706. It is well settled that the document though

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unregistered can however be looked into for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family as co-tenants. The document, Ext. P-12 can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide. In any view, the document, Ext. P-12 was a mere list of properties allotted to the shares of the parties.”

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The law being well settled that if the document

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did not itself create or declare any rights in immovable property of the value of Rupees 100 or upwards, it is not hit by Section 17(1)(b) of the Act and as such was not compulsorily registrable. The trial Court while appreciating Ex.P1 has rightly arrived at a conclusion that under Ex.P1 is a mere memorandum prepared after family arrangement, memorandum of partition itself does not create or extinguish any rights in immoveable property and is, therefore, not compulsorily registrable and under the memorandum of partition Ex.P1, the plaintiff has been

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allotted the suit property and decreed the suit for declaration and injunction.

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The First Appellate Court being the last fact finding Court appreciated the entire oral and documentary evidence and held that the oral past family arrangement between the plaintiff and defendant has been incorporated in writing under Ex.P1 which does not require registration also arrived at a conclusion that the plaintiff has proved that under the memorandum of partition, he was allotted the suit property.

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The manner in which the Courts below have assessed the entire oral and documentary evidence, this Court is of the considered view that the finding of fact recorded by the Courts below does not suffer from any perversity or illegality warranting any interference under Section 100 CPC and no substantial question of law arises for consideration in this appeal. Accordingly, this Court pass the following:

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