Second appeal against decree granting plaintiff 1/5th share in ancestral joint family property. Defendants relied on plaintiff's stray cross-examination admission of an earlier partition; court held an inter se partition between defendants cannot bind her without a pleaded family settlement including her, and dismissed the appeal.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO. 427 OF 2016 (PAR)
BETWEEN:
Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA
NOW AT DOOR NO.859, GROUND FLOOR, CONTOUR ROAD, GOKULAM 3RD STAGE, V.V.MOHALLA, MYSORE – 570 002.
…APPELLANTS
(BY SRI. Y.K.NARAYANA SHARMA., ADVOCATE)
AND:
(NOTICE IS R1 AND R2 IS HELD SUFFICIENT VIDE ORDER DATED 11.03.2020)
THIS RSA IS FILED UNDER SEC.100 R/W ORDER 42 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.12.2015 PASSED IN R.A NO.12/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., NANJANGUD, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 11.02.2013 PASSED IN O.S NO.304/2007 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC., NANJANGUD.
THIS APPEAL COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
Against the judgment and decree passed by the First Appellate Court in R.A. No.12/2014 dated 17.12.2015 on the file of the Senior Civil Judge and JMFC, Nanjangud, the defendants No.1, 2, 4, 5, 6 and 7 are before this Court in the Regular Second Appeal.
the following substantial questing of law -
1. Whether the First Appellate Court has committed a serious legal error in avoiding the specific admission made by the plaintiff - PW.1 with regard to the earlier partition and allotting share to her and thereafter her share has been received by her brothers ?
2. Whether the First Appellate Court has committed a serious legal error in holding that the suit for partition is maintainable even in view of the earlier partition admitted by the plaintiff ? and
NC: 2024:KHC:31955 RSA No. 427 of 2016
3. Whether the share allotted by the First Appellate Curt is in accordance with law?
heard on the substantial questions of law framed by this Court. The notice issued to respondents No.1 and 2 is held sufficient vide order dated 11.03.2020. There is no representation on behalf of the respondents.
submits that the First Appellate Court committed an error
in overlooking the admission of PW.1 (plaintiff) who categorically stated about the earlier partition effected between the plaintiff and defendants and she being allotted half acre of land as per the partition. Learned counsel submits that the First Appellate Court has committed a serious error in allowing 1/5th share to the plaintiff in the suit schedule properties without considering the earlier partition effected between the family members which is categorically admitted by the plaintiff in her evidence.
NC: 2024:KHC:31955 RSA No. 427 of 2016
Suit seeking for partition and separate possession by claiming 1/5th share in the suit schedule property. The relationship of the plaintiff and defendants are not in dispute. It is also not in dispute that the suit properties originally belong to their father Puttananje Gowda. The plaintiff contended that after the death of Puttananje Gowda, defendant No.1 being the elder male member of the family, his name was entered in the revenue records and the entry of his name was without the consent of plaintiff and other defendants. That the suit properties are the Hindu Undivided Joint Family Properties and they are liable to be partitioned between the plaintiff and defendants.
their father and since from the date of marriage all are living separately and there is no joint family. The defendants No.1 and 2 contended that they have partitioned the suit schedule properties among themselves by metes and bounds and the katha has been changed in their names and they are paying kandayam regularly. It is further averred that first defendant is living separately and on 21.02.2003 first defendant and his sons have got partitioned the suit schedule properties through a registered partition deed and further stated that the suit of the plaintiff is not maintainable as there is already a partition effected in the suit schedule properties between the first and second defendant long back.
7. Defendant No.3 Puttamma, another daughter of
Puttananje Gowda admits the claim of the plaintiff and seeks for 1/5th share equitably in the suit schedule properties.
statement interalia contending that he is a bonafide
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purchaser having purchased the property from defendant No.1 in respect of suit land bearing Sy.No.309/1 to the extent of 1 acre 20 guntas for a valuable sale consideration and since the date of sale he is in lawful possession and enjoyment of the said property.
“ 1. Does the plaintiff proves that the suit schedule properties are ancestral joint family property ?
2. Do the defendants 1 and 2 proves that there is no joint family and the properties is already partitioned by metes and bounds ?
3. Whether plaintiff is entitled for the relief claimed ?
Additional Issue No.1.
1. Whether defendant No.5 proves that who is the bonafide purchaser for value ?”
NC: 2024:KHC:31955 RSA No. 427 of 2016
P10. Defendant No.1 examined himself as DW.1 and
marked documents at Exs.D1 to D12.
did not dispute that the suit schedule properties are the ancestral joint family properties. According to them, the defendants No.1 and 2 have partitioned the suit properties 40 years ago and their names have been accordingly mutated in the revenue records. Learned counsel drawing the attention of this Court to the evidence of PW.1 submits
that PW.1 has categorically admitted in her cross examination that in the partition effected between the family members, the plaintiff was given half acre of land and to the said extent the cross-examination of PW.1 is perused by this Court. The relevant portion of the cross examination of PW.1 is as under:
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whisper about any share being given to the plaintiff, thus, the stray sentence of PW.1 placed reliance by the appellant and taken into consideration by the Trial Court will not take away the right of the plaintiff of her legitimate share. A stray sentence of the plaintiff cannot be formed as a basis to go against the plaintiff when there was no averment by the defendants No.1 and 2 about giving any share to the plaintiff, when the specific averment is that there was a partition effected between defendants No.1 and 2 long 40 years ago among themselves. The family settlement must be bonafide 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, and an inter se partition between the defendants cannot be binding upon the plaintiff even in the light of admission by the plaintiff in her cross-examination.
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vs. Deputy Director of Consolidation and Others1 has
held at para 10 as under:
“ 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:
“(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;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no registration is necessary;
(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
1 1976 (3) SCC 119
NC: 2024:KHC:31955 RSA No. 427 of 2016
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;
(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;
(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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vs. Rakesh Sharma2 has held that a plea of oral partition cannot be accepted as the statutorily recognized mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908, unless and until the plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a Court. In the instant case, the claim of the plaintiff is that there is no partition effected, defendants set up a plea that there was a partition effected among themselves i.e., defendants No.1 and 2. A stray sentence on behalf of the plaintiff in her cross-examination to the extent that she was given half acre of land would not indicate that there was a family partition effected between the plaintiff and defendants and she was given share in the suit properties making the arrangement between the defendants to be binding on the plaintiff. The Apex Court in the case of
2 AIR 2020 SC 3717
Gopal, Krishnaji Ketkar vs. Mahomed Haji Latif&
Ors.3 has observed that an admission particularly in a civil matter dealing with properties has to be clear and it has to be read in the light of the pleadings and the other evidence available on record. One stray sentence cannot be picked up for holding against the plaintiff in property matter. The stray sentence cannot be a basis for rejecting the claim of plaintiff for partition. The oral partition effected without the plaintiff among defendant Nos. 1 and 2 is not binding and the First Appellate Court has rightly considered and reappreciated the entire oral and documentary evidence being the last fact finding Court and decreed the suit of the plaintiff awarding 1/5th share. The stray sentence of the plaintiff is no admission regarding the partition between the plaintiff and the defendants in the absence of any plea of the defendants that the plaintiff was given share in the suit schedule property in the said partition. There is no perversity or
3 AIR 1968 SC 1413
NC: 2024:KHC:31955 RSA No. 427 of 2016
illegality committed by the First Appellate Court warranting any interference. The substantial question of law framed by this Court is answered against the appellant and this Court pass the following -
ORDER
Sd/(K.S. HEMALEKHA) JUDGE
YKL
List No.: 1 Sl No.: 28
3 issues framed by the court
Whether the First Appellate Court erred in ignoring PW.1's admission of an earlier partition and allotment of half acre to her.
Whether a suit for partition is maintainable despite an earlier partition admitted by the plaintiff.
Whether the share allotted by the First Appellate Court is in accordance with law.
Colour shows how this judgement treated each authority
Kale and Others vs. Deputy Director of Consolidation and OthersRelied on¶14
1976 (3) SCC 119 · Who else cites this
Vineeta Sharma vs. Rakesh SharmaRelied on¶15
AIR 2020 SC 3717 · Who else cites this
Gopal, Krishnaji Ketkar vs. Mahomed Haji Latif and Ors.Relied on¶15
AIR 1968 SC 1413 · Who else cites this
2 provisions across 1 enactments
Sri. Subbegowda
Sri. Nagegowda
Smt. Nagamma
Sri. Raghunath K.
Sri. Madegowda
Smt. Suma
K.S. Hemalekha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
