MRS BHAGYAMMA, D/O LATE MR.GANGAMASHTHAIAH & LATE MRS.GANGAHANUMAKKA (1^ST WIFE), W/O LATE MRS.HANUMANTHARAYAPPA, AGED ABOUT 53 YEARS, R/A HOSAPALYA VILLAGE, MODALAKOTE POST, NELAMANGALA TALUK, BENGALURU DISTRICT-562 123.

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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2 MRS. BYRAMMA (2^ND WIFE) W/O LATE GANGAMASTHAIAH, AGED ABOUT 65 YEARS, R/A HUNNIGERE VILLAGE, DASANPURA HOBLI, SONDEKOPPA POST, BENGALURU NORTH TALUK, BENGALURU RURAL DISTRICT-562123.

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3 MRS.RUDRAMMA @ SUJATHA D/O LATE MR.GANGAMASTHAIAH & MRS. BYRAMMA, W/O GOPAIAH, AGED 48 YEARS, R/A #69 NEAR GOVT., JUNIOR COLLEGE, JAKKASANDRA, RAJAPPA LAYOUT, NELAMANGALA TOWN, BENGALURU RURAL DISTRICT-562 123.

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…PETITIONERS

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(BY SRI. ARNAV A BAGALWADI., ADVOCATE)

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NC: 2024:KHC:414 WP No. 339 of 2024

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AND:

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MRS GANGAMMA D/O LATE MR.THIMMAIAH, W/O LATE MR.KEMPAIAH, AGED ABOUT 73 YEARS, R/A GOVENAHALLI VILLAGE, THYAMAGONDLU HOBLI, KULUVENAHALLI POST, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT-562 123.

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MRS. RUDRAMMA, D/O LATE THIMMAIAH, W/O LATE MR.MUDDAIAH, R/A HOSAPALYA VILLAGE, KASABA HOBLI, MODALAKOTE POST, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT-562 123.

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…RESPONDENTS

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(BY SRI. DEVARAJU.K., ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECTION TO SET ASIDE THE ORDER DATED 29/09/2023 IN O.S. NO. 25/2018 PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC, NELAMANGALA, A COPY OF WHICH IS HEREIN PRODUCED AS ANNEXURE C AS ILLEGAL AND VOID, ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is directed against the impugned order dated

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29.09.2023 passed in O.S. No.25/2018 by the Senior Civil Judge & JMFC, Nelamangala, (hereinafter referred to as, ‘Trial Court’, for short) whereby the alleged document styled as ‘partition deed’ dated 20.02.1957 was not permitted to be marked as an exhibit in

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NC: 2024:KHC:414 WP No. 339 of 2024

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evidence on behalf of the petitioners on the ground that the same was an unregistered document.

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Heard learned counsel for the petitioners and learned counsel for the respondents.

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A perusal of the material on record indicates that the respondents No.1 and 2 – plaintiffs instituted the aforesaid suit against the petitioners / defendants for partition and separate possession of their alleged share in the suit schedule properties. The said suit is being contested by the petitioners / defendants. After completion of the evidence of the respondents / plaintiffs, the petitioner No.1 examined herself as D.W.1 and during the course of her evidence, she intended to mark alleged document dated 20.02.1957 styled as ‘partition deed’ as an exhibit on her behalf. The marking of the said document and admission of the same in evidence was opposed by the respondents / plaintiffs, who inter alia contended that the same was an out and out partition deed and not palu patt and since right, title and possession in immovable properties were created under the very same document which was not a record of a past partition, the document was compulsorily registrable under Section 17(2)(viii) of the Registration Act, 1908

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(hereinafter referred to as ‘the Act’, for short) read with the proviso to Section 49 of the said Act. It was also contended that the Explanation to Section 6(5) of the Hindu Succession Act, 1956 permits only a registered partition to be introduced in evidence for the purpose of proving earlier partition and also preventing the female co-parceners pursuant to the amendment to Hindu Succession Act of the year 2005 from claiming any share in the properties.

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Per contra, the learned counsel for the petitioners / defendants contended that the said document was not a partition deed and was in the nature of palu patti and it did not require any registration.

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After hearing both the sides, the Trial Court proceeded to pass the impugned order refusing to permit the petitioner - D.W.1 to mark the said documents in evidence on behalf of the petitioners, who are before this Court by way of the present petition.

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A perusal of the impugned order passed by the Trial Court indicates that various contentions urged by both sides as regards

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admissibility or otherwise of the said document dated 20.02.1957 has been elaborately dealt with by the Trial Court at the stage of marking, which is contrary to the law laid down by the Apex Court

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in the case of Bipin Shantilal Panchal vs. State of Gujarat & Another reported in AIR 2001 SC 1158 and followed by this Court in the case of Chikka Narasappa and Others vs. Venkatamma and Others reported in ILR 2015 KAR 907.

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Under these circumstances, I am of the considered opinion that the Trial Court committed an error in deciding the issue / question regarding admissibility at the stage of marking itself and since objections had been raised by the respondents / plaintiffs regarding the admissibility of the said document, the said issue could have been postponed by the Trial Court to be decided at the time of the final disposal of the suit, in terms of the procedure laid down by the Hon’ble Apex Court in the case of Bipin Shantilal Panchal (supra). At any rate, since the Trial Court will necessarily have to deal with the issue / question of the admissibility of the document dated 20.02.1957 along with other issues / questions that arise for consideration, no prejudice would be caused to the

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respondents if that issue is kept open to be decided in accordance

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with law at the time of the final disposal of the suit.

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In the result, the following :

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ORDER

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i) The petition is hereby allowed.

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ii) The impugned order is hereby set aside.

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iii) The Trial Court is directed to permit the petitioner No.1 (D.W.1) to effectively mark the document dated 20.02.1957 as an exhibit in her evidence.

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iv) All rival contentions regarding admissibility, proof, execution, relevance, probative value, etc., of the said document are kept open to be decided by the Trial Court at the time of final disposal of the suit and no opinion is expressed on the same.

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v) The Trial Court is directed to mark the said document as an exhibit, as stated supra, and proceed further to adjudicate upon the suit in accordance with law.

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vi) Since the suit is of the year 2018, the Trial Court is directed to dispose of the suit within a period of one year from the date of receipt of a copy of this order.

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Sd/JUDGE

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HNM List No.: 1 Sl No.: 32

Mrs Bhagyamma v. Mrs Gangamma

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Mrs Bhagyamma v. Mrs Gangamma

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