Dismissed

Shrishail Gurubasappa Kakhandki v. Smt.Annapurna Mahadevappa Kakhandki

Karnataka HC17 Dec 2024RSA/100549/2018

Case brief

AI extract

What is this about?

In this Regular Second Appeal challenging a suit for declaration of title and injunction regarding land partitioned allotments, the High Court held the plaintiff failed to prove ownership because the relevant partition document was unregistered and mutation entries do not confer title. The appeal was dismissed confirming lower courts.

What did the court decide?

The Regular Second Appeal was dismissed and the judgment and decree of the Courts below was confirmed.

Shrishail Gurubasappa Kakhandki Vs Smt.Annapurna Mahadevappa… — Partition | Karnataka HC (2024)

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NC: 2024:KHC-D:18330 RSA No. 100549 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 17^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

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RSA NO. 100549 OF 2018 (DEC/INJ)

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BETWEEN:

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SHRISHAIL GURUBASAPPA KAKHANDKI AGED ABOUT 54 YEARS, OCC. AGRICULTURE, R/O. SAVALGI, TQ. JAMAKHANDI, BAGALKOTE-587330.

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… APPELLANT

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(BY KUM. VINAYA P.KUPPELUR, ADVOCATE FOR SRI. N.R.KUPPELUR, ADVOCATE)

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AND:

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SMT. ANNAPURNA MAHADEVAPPA KAKHANDKI AGED ABOUT 54 YEARS, OCC. AGRICULTURE, R/O. SAVALGI, TQ. JAMAKHANDI, DIST. BAGALKOTE-587330.

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Digitally
signed by
VISHAL
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.12.19
16:02:08
+0530

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SMT. NEELAMMA W/O. SHIVANAND BHOOMANNAVAR, AGED ABOUT 55 YEARS, OCC. HOUSEHOLD WORK, R/O. SAVALGI, TQ. JAMAKHANDI, DIST. BAGALKOTE-587330.

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… RESPONDENTS

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(BY SRI. MALLIKARJUN C.HUKKERI, ADVOCATE FOR R1 & R2)

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THIS RSA IS FILED U/SEC.100 OF CPC, 1908, AGAINST THE JUDGEMENT AND DECREE DATED 27.04.2018 PASSED IN R.A.NO.25/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE JAMKHANDI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 19.06.2017, PASSED IN O.S. NO.31/2014 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, JAMKHANDI, DISMISSING THE SUIT FILED FOR DECLARATION AND INJUNCTION.

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NC: 2024:KHC-D:18330 RSA No. 100549 of 2018

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THIS APPEAL, COMING ON FOR DISMISSAL, 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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ORAL JUDGMENT

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Assailing the concurrent findings of fact recorded by

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the Courts below, the plaintiff 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 property RS No.81/1 totally measuring 14

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acres 37 guntas, out of it, an extent of 2 acres towards the western side (hereinafter referred to as ‘suit property’ for short). The case of the plaintiff is that RS No.81/1 measuring 14 acres 37 guntas is the joint family property of the plaintiff and defendants. The entire land bearing RS No.81/1 measuring 14 acres 37 guntas is in the name of Malasiddappa @ Mahadevappa S/o. Siddappa Kakhandaki. That in the partition between the plaintiff and defendant Nos.1 and 2 and deceased Malasiddappa @ Mahadevappa

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S/o. Siddappa Kakhandaki, the plaintiff was allotted the suit property and the partition was reduced in writing and signed by the defendants and deceased Malasiddappa on 30.06.2012. Accordingly, a Varadi was submitted by Malasiddappa to enter the name of the plaintiff in the record of right as per the partition deed and MR No.111 is mutated, on death of Malasiddappa, the defendants started to obstruct the plaintiff’s peaceful possession and enjoyment of the suit property and hence, the present suit for declaration and injunction.

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The defendants contended that RS No.81/1 totally measuring 14 acres 37 guntas was allotted in favor of Malasiddappa in a partition amongst his brothers. The husband of defendant No.1 was the owner in possession of the entire RS No.81/1 and on his death, defendant Nos.1 and 2 are in actual possession. The defendants denied about any execution of the deed on 20.06.2013 and further contended that the said document relied is unregistered document which is inadmissible in evidence.

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The trial Court based on the pleadings framed

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the following issues;

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“1. Whether the plaintiff prove his ownership and possession over suit property?

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2. Whether the plaintiff further proves the interference by the defendants as alleged?

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3. Whether suit is bad for non-joinder of necessary parties?

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4. Whether the plaintiff is entitled for reliefs claimed?

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5. 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 4 marked documents at Ex.P.1 to 7. On the other hand, defendant No.1 examined herself as DW.1 marked documents at Ex.D.1 to 9.

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The trial Court based on the pleadings, oral and documentary evidence arrived at a conclusion that;

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i) The plaintiff has failed to prove his ownership and possession over the suit property; and

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by the judgment and decree, the trial Court dismissed the suit of the plaintiff.

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Aggrieved the plaintiff preferred appeal before the First Appellate Court. The First Appellate Court while appreciating the entire oral and documentary evidence confirmed the judgment and decree of the trial Court. Aggrieved the plaintiff is before this Court in this regular second appeal.

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Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents and perused the material on record.

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The undisputed fact is that RS No.81/1 measuring 14 acres 37 guntas stands in the name of Malasiddappa. The defendants contend that there was a partition between the brothers of Malasiddappa and in the partition RS No.81/1 measuring 14 acres 37 guntas has

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been allotted to the share of Malasiddappa. The plaintiff contends that, under the partition between Malasiddappa and plaintiff, the suit property was allotted to the share of the plaintiff and ME No.111 has been effected in his name. Ex.P.3 is the certified copy of the “Apsat Vatni Patra” which discloses that 14 acres 11 guntas was allotted to the share of Malasiddappa and 2 acres of land i.e., suit property was allotted to the share of plaintiff. The Ex.P.3 is an unregistered document entered based on a Varadi given by Malasiddappa as per Ex.P.5.

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The three Bench of the Apex Court in the case of Kale and Others Vs. Deputy Director of Consolidation and 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 AIR 1976 SC 807

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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 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

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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 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

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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 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 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

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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 and Others Vs. Zile Singh and Others² held at

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paragraph 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

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2 AIR 1988 SC 881

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Singh v. Jagarnath Kuari, 1931 SCC OnLine PC 86 : (1931-32) 59 IA130] and Subramonian v. Lutchman [Subramonian 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 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

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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 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

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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 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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Ex.P.3 the ‘Apsat Vatni Patra’ is not an

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instrument which records a prior partition as passed partition is not recorded, the instrument Ex.P.3 is compulsorily registerable document as is the settled proposition of law. The Ex.P.3 being an unregistered document, based on the document mutation entry has been effected under ME No.111 which entry does not

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confer any right, title or interest over the suit property for the plaintiff to be entitled for declaration.

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The law is well settled that mutation perse is not conclusive proof of title, merely because a mutation is carried out in favor of one party does not make that party an absolute owner of the property. Mutation entries do not confer any title to the property without there being any registered document to evidence his right.

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The Hon’ble Apex Court in the case of Suraj Bhan And Others Vs. Financial Commissioner And

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Others³ has held that, an entry in revenue records does not confer title on a person whose name appears in record-of- rights. Entries in revenue records have only “fiscal purpose” i.e. payment of land revenue and no ownership is conferred on the basis of such entries. Similar view is taken in the case of Suman Verma Vs.

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Union Of India And Others⁴ , wherein, the Apex Court has held that, the mutation entry neither creates nor

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3 (2007) 6 Supreme Court Cases 186

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4 ( 2004 ) 12 Supreme Court Cases 58.

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extinguishes title or ownership. The Apex Court in the case of Municipal Corporation, Aurangabad Through Its Commissioner Vs. State Of Maharastra And

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Another⁵ has taken similar view. The Apex Court in the case of Prahlad Pradhan Vs. Sonu Kumhar⁶ has held that, the appearance of name in revenue records does not make property as self acquired property. In the case of Ajit Kaur Alias Surjit Kaur Vs. Darshan Singh (Dead) Through Legal Representatives And Others ,⁷ the Apex has held the mutation entries cannot raise any presumption of title to property.

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The plaintiff has failed to make out any ground to declare him as the owner of the suit property. The manner in which the Courts below have assessed the entire oral and documentary evidence, this Court is of the considered view that the same does not warrant any interference under Section 100 CPC and no substantial

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