Sri Moodlappa Vs Sri Huligabhovi

(SINCE RESPONDENT NO.5 DIED IN R.A.NO.37/2013 LATE THIMMAKKA W/O GHOBI THIMMABHOVI HAD BEEN EXPIRED ON 13.09.2009 HER LRS ARE BROUGHT ON RECORD AS APPELLANT Nos.4 TO 7

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SMT HANUMAKKA W/O SANNA BHOVI, AGED ABOUT 63 YEARS, R/AT KEELARADHAHALLI, VADDARAHATTI, KASABA HOBLI, SIRA TALUK – 572 137

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SMT GIRIYAMMA W/O THIMMAIAH, AGED ABOUT 56 YEARS, R/AT MARANAGERE, VADDARAHATTY, GOWDAGERE HOBLI, SIRA TALUK – 572 137

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SRI HULIGA BHOVI S/O THIMMAIAH, AGED ABOUT 58 YEARS, R/AT TAVAREKERE, KASABA HOBLI, SIRA TALUK – 572 137 (DELETED AS PER COURT ORDER DATED 27.06.2018)

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(BY SRI. RAJESH MAHALE, SR. COUNSEL FOR SRI . PARIKSHITH MALIYE , ADVOCATES)

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…APPELLANTS

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AND:

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SRI HULIGABHOVI S/O LATE GOVINDABHOVI, AGE:70 YEARS, R/AT KENCHAPPANAHALLY VADDARAHATTI, BUKKAPATNA HOBLI, SIRA TALUK – 572 137

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SRI THIMMAIAH S/O LATE GOVINDA BHOVI,

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AGED ABOUT 63 YEARS, R/AT KRISHNAPURA, DHARMAPURA HOBLI, HIRIYUR TALUK – 572 144 CHITRADURGA DIST.

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SMT JAYAMMA W/O THIMMABHOVVI, AGED ABOUT 50 YEARS, R/AT KEELARADHAHALLY, VADDARAHATTY KASABA HOBLI, SIRA TALUK – 572 137

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SRI HULIGA BHOVI S/O THIMMAIAH, AGED ABOUT 58 YEARS, R/AT TAVAREKERE, KASABA HOBLI, SIRA TALUK – 572 137

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…RESPONDENTS

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(BY SRI. H K SRIVASTHAVA, ADVOCATE FOR R1 & R2 R3 SERVED

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V/O DATED 01.04.2019 NOTICE TO R4 IS D/W)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 22.03.2016 PASSED IN R.A NO.37/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., SIRA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 25.04.2013 PASSED IN O.S NO.291/2008 ON THE FILE OF THE CIVIL JUDGE AND JMFC., SIRA.

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

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 22.03.2016 passed in R.A.No.37/2013, by the learned Senior Civil Judge and JMFC, Sira.

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For convenience, the parties are referred to based on their rankings before the trial court. The appellants were the defendants, respondent No.1 was the plaintiff, and other respondents were the other defendants.

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Brief facts leading rise to the filing of this appeal are as follows:

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The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that the suit schedule properties are the ancestral and joint family properties of the plaintiff and the defendants. Originally, the suit properties belonged to one Govinda Bhovi, the father of the plaintiff and defendant Nos.1 to 3. After his demise, the plaintiff and defendant

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Nos.1 to 3, succeeded to the suit properties by way of succession. The plaintiff, being a son of Govinda Bhovi, has a 1/4^th share in the suit schedule properties. The defendants denied the plaintiff’s legitimate share of the suit schedule properties. The defendants are mismanaging the suit schedule properties only to deprive the legitimate share of the plaintiff over suit properties. The plaintiff demanded for partition and separate possession by issuing legal notice on 21.11.2008, but the defendants refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, he prays to decree the suit.

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3.1. Defendants No.2 and 3 filed their written

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statement admitting the relationship with the plaintiff and also admitting that the properties belonged to Govinda Bhovi. It is denied that the plaintiff and defendants No.1 to 3 are in joint possession of the suit schedule properties. It is contended that the plaintiffs and defendants No.1 to 3 are divided brothers. The plaintiff and defendants No.1 to

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3 divided the properties through an agreement dated 29.05.1967. Since then, the plaintiff and the defendants have been living separately. In the said partition, the suit properties were allotted to the share of defendant No.3. Defendant No.3 is in actual possession and enjoyment of the suit properties as an absolute owner. Defendant No.3 invested a huge amount in developing the suit properties. Defendant No.3, as an absolute owner, executed a gift deed in favour of his sons on 19.11.2008. As per the partition deed dated 29.05.1967, the plaintiff, defendant Nos.1 and 2 have received the amount of Rs.2,000/- each from defendant No.3 and have given up their shares in his favour. Hence, the suit filed by the plaintiff is barred by limitation. Hence, prays to dismiss the suit against defendants No.2 and 3.

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3.2. The other defendants have not filed a written statements.

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3.3. The trial Court, based on the pleadings, of the

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parties, framed the following issues.

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1) Whether the plaintiff proves that the suit schedule properties are the ancestral and joint family property of plaintiff and defendants?

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2) Whether the plaintiff proves that gift deed executed by 3^rd defendant in favour of his sons is not binding on his share?

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3) Whether the plaintiff proves that defendants are refused to give his legitimate share?

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4) Whether the defendant Nos.2 and 3 prove that partition was affected between the plaintiff and defendants about 44 years back, as per that partition, suit schedule properties were allotted to the share of 3^rd defendant to maintain his parents as averred in the written statement?

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5) Whether the defendant Nos.2 and 3 prove that suit of the plaintiff is bad for non-joinder of necessary parties?

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6) Whether the Court fee paid by the plaintiff is insufficient and suit valuation is not proper?

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7) Whether the plaintiff is entitled for the relief as claimed in the suit?

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8) What order or decree?

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3.4. To substantiate his case, the plaintiff examined

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himself as PW.1, examined two witnesses as PWs.2 and 3, and marked 21 documents as Exs.P1 to P21. On the other hand, defendant No.3 examined himself as DW.1 examined 3 witnesses as DWs.2 to 4 and marked 38 documents as Exs.D1 to D38. The trial court, after recording the evidence, hearing on both sides, and assessing the oral and documentary evidence, answered issues No.1 to 3, and 5 to 7 in the negative, issue No.4 in the affirmative, and consequently dismissed the suit of the plaintiff. The plaintiff, aggrieved by the judgment and preliminary decree passed in O.S.No.291/2008, preferred an appeal in R.A.No.37/2013 on the file of the Senior Civil Judge and JMFC, Sira.

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3.5. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration.

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1) Whether the judgment and decree passed by the trial Court is erroneous, illegal and opposed to law?

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2) Whether the judgment and decree calls for my interference?

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3.6. The First Appellate Court, after reassessing the

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verbal and documentary evidence, answered point Nos.1 and 2 in the affirmative and consequently, allowed the appeal with costs. The judgment and decree dated 25.04.2013 passed in O.S.No.291/2008 by the Civil Judge and JMFC, Sira, dismissing the plaintiff’s suit was set aside. Consequently, the plaintiff’s suit for partition and separate possession was decreed. It is further decreed and declared that the plaintiff is entitled to 1/4^th separate share and possession over the suit schedule properties. It is further decreed and declared that the suit schedule properties be partitioned by metes and bounds and the plaintiff be put in his 1/4^th separate share and possession over the suit schedule properties. Defendant Nos.2 to 4 and the legal representative of defendant No.1, aggrieved

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by the judgment and decree dated 22.03.2016, passed in R.A.No.37/2013, preferred this Regular Second Appeal.

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Heard Sri. Rajesh Mahale, learned Senior counsel for Sri. Parikshith Maliye, appearing for the appellants/defendants No.1 and 2 and Sri.H.K. Srivasthava, learned counsel for respondents No.1 and 2.

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Learned Senior counsel for the defendants submits that there was a partition between the plaintiff and defendant Nos.1 to 3, and the said partition was reduced into an agreement dated 29.05.1967. Since then, the plaintiff and the defendants are living separately, and in the said partition, the suit properties were allotted to the share of defendant No.3, who is paying tax to the Government regarding the suit schedule properties. The plaintiff and defendants No.1 and 2 have received an amount of Rs.2,000/- from the defendants. He submits that defendant No.3 became the absolute owner by virtue of an agreement dated 29.05.1967, and defendant No.3 executed the gift deed in favour of his sons dated

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19.11.2008. He submits that the First Appellate Court committed an error in ignoring the agreement executed by the plaintiff and defendant Nos.1 and 2. He submits that the agreement was executed on 25.09.1967, and the suit was filed in 2008. Hence, the suit is hopelessly barred by limitation. Therefore, the judgment and decree passed by the First Appellate Court is arbitrary and erroneous. Further, he has relied on the judgment of the Hon’ble Apex Court in the case of K.ARUMUGA VELAIAH VS. P.R RAMASAMY AND ANOTHER reported in (2022) 3 SCC 757 . Hence, on these grounds, he submits that the impugned judgment passed by the First Appellate Court is perverse, arbitrary and erroneous. Accordingly, he prays to allow the appeal.

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Per contra , learned counsel for the plaintiff submits that the plaintiff and the defendants are the members of a Hindu undivided family and the suit schedule properties are the ancestral properties and further contended that the father of the plaintiff was alive

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in 1967 and had no occasion to effect partition of the joint family properties. He submits that there is no question of relinquishment in favour of defendant No.3 by way of executing the alleged agreement dated 29.05.1967, and the mutation was effected in 1984, i.e. after the demise of his father, therefore, the parties have not acted upon the alleged agreement dated 29.05.1967. He submits that the plaintiff has denied the execution of the alleged agreement dated 29.05.1967, and further, he submits that there is no reference to Ex.D1 and Ex.D2 in Ex.D3. Said Ex.D2 was created to deprive the legitimate share of the plaintiff. He submits that the alleged agreement is unregistered and is inadmissible in evidence. He submits that the suit schedule properties are the ancestral and joint family properties of the plaintiff and the defendants, and no partition is effected. The First Appellate Court has rightly passed the impugned judgment. Hence, he prays to dismiss the appeal.

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This Court, on 25.04.2019, admitted the appeal

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to consider the following substantial question of law :

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1) Whether the First Appellate Court’s finding that Ex.D1 the partition deed dated 29.05.1967 cannot be received in evidence as the same is unregistered is contrary to Section 49 of the Registration Act, 1908?

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2) Whether the judgment of the First Appellate Court suffers perversity?

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8. Reg.Substantial question No.1 : The plaintiff

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examined himself as PW.1 to establish his case. He

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submits that Govinda Bhovi was the original propositus. The plaintiff and defendants No.1 to 3 are the sons of Govinda Bhovi. The suit schedule properties are the ancestral and joint family properties of the plaintiff and the defendants. The plaintiff and defendants No.1 to 3 are the members of the Hindu joint family, and no partition is effected between the plaintiff and defendants No.1 to 3. The plaintiff demanded partition and separate possession by issuing a legal notice dated 21.11.2008. The defendants refused to effect partition. The plaintiff, to

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prove that the suit schedule properties are the ancestral and joint family properties of the plaintiff and the defendants; produced documents, certified copy of the Genealogical tree is marked as Exs.P1, Exs.P2 to 5 are the RTC extracts stands in the name of Defendant No.3, Ex.P6 is the index of lands, and Ex.P7 is the office copy of the legal notice dated 21.11.2008, issued to the defendants requesting to effect the partition. Ex.P8 is the copy of the sketch, Exs.P9 to 11 are the postal acknowledgements, Ex.P12 is the certified copy of the gift deed executed by defendant No.3 in favour of his sons, Exs.P13 and Ex.P14

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are the RTC extracts stands in the name of original propositus, Govinda Bhovi, Ex.P15 is the Boundary certificate of land bearing Sy.No.6/2 measuring 0.06 guntas, Exs.P16 to 21 are the RTC extracts.

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During the cross-examination of PW.1, it is suggested that there was a partition in 1967, the plaintiff had executed an agreement, and the said partition was reduced writing in the form of an agreement. The said

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suggestion were denied. It was suggested that by an agreement dated 25.09.1967, the father gave 3 coconut trees to the temple, and the said suggestion was admitted by PW.1.

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Further, the plaintiff also examined one witness, Ramaiah, as PW.2 , who has deposed that the plaintiff and defendants are the members of a Hindu joint family and no partition is effected between the plaintiff and defendants. During the cross-examination, it was elicited that PW.2 does not know what relief the plaintiff sought in the plaint. It is suggested that there was a partition between the plaintiff and defendants, but the suggestion was denied by PW.2.

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The plaintiff also examined one witness as Thimmaiah- PW.3. He has reiterated the examination-inchief of PW.2. On the other hand, defendant No.3 was examined as DW.1, he reiterated the written statement averments in the examination-in-chief, and he has deposed that there was a partition between the plaintiff

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and defendants No.1 to 3 and the same was reduced into writing on 29.05.1967. He has produced a copy of it, and in the said partition, suit schedule properties were allotted to the share of defendant No.1. To prove that there was a partition between the plaintiff and defendant Nos.1 to 3, defendant No.3 produced original certified copy of the partition deed marked as Ex.D1, Ex.D2 is the deed of agreement alleged to have been executed by the plaintiff on 29.05.1967. Ex.D3 is the MR extract, Ex.D4 is the patta book, Exs.D6 to 17 are the RTC extracts, Ex.D18 is the crop certificate, Ex.D19 is the boundary certificate, Exs.D20 to 29 are the tax paid receipts, Ex.D30 is the grant certificate, Ex.D31 is the certified copy of the encumbrance certificate, Exs.D32 to 34 are RTC extracts, Exs.D35 and 36 are the khata extracts, Ex.D37 is the tax paid receipt, Ex.D38 is the Panchayath Palu Parikath.

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The perusal of Ex.D1 discloses that there was a partition regarding the suit schedule properties. Ex.D1 discloses that the suit schedule properties were the

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ancestral and joint family properties of the plaintiff and defendants. Further, the defendants have taken a defence that there was a partition between the plaintiff and the defendants. To prove a prior partition between the plaintiff and defendants, they examined one S.L.Gowda as DW.2, who has deposed that an agreement was executed between the plaintiff and defendants No.1 to 3 on 29.05.1967. Partition was effected between the plaintiff and defendants, and the suit properties fell to the share of defendant No.3.

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During the cross-examination, it was elicited that he was unaware of the family affairs of the plaintiff and defendants. It is suggested that defendant No.3, colluding with the witnesses, got created Ex.D1. The said suggestion was denied. DWs.3 and 4 have reiterated the examination-in-chief of DW.2.

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From the perusal of the entire evidence on record, defendant No.3 has produced Ex.D1, i.e., a certified copy of the partition deed. The document is

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unregistered, and further, in order to prove the contents of Ex.D1, defendant No.3 has not examined any witnesses to the said Ex.D1. The mere marking of documents does not dispense its proof. The Hon’ble Apex Court, in the case of RAMJI DAYAWALA AND SONS (P) LTD VS. INVEST IMPORT, reported ( 1981) 1 SCC 80 , held that “mere production and marking of documents as exhibits cannot be held to be proof of its contents. Its execution has to be proved by admissible evidence i.e., by the evidence of those persons who can depose the truth of the facts in issue”. Admittedly, defendant No.3 has not examined any attesting witnesses to Ex.D1. Further, from the perusal of Ex.D1, it discloses that the plaintiff and defendant Nos.1 and 2 relinquished their right in the immovable property. The Hon’ble Apex Court in the case of YELLAPU UMA

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MAHESWARI AND ANR VS. BUDDHA JAGADHEESWARARAO AND

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ORS. reported in ( 2015) 16 SCC 787 held that the documents effecting the relinquishment of rights regarding the immovable property requires compulsory registration under Section 17(1)(b) of the Registration Act, 1908 and

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hence, the unregistered partition deed of relinquishment of right is inadmissible in evidence for the primary purpose of division of joint family properties by metes and bounds.

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Further, from the perusal of Ex.D3, a copy of the mutation order, does not reflect regarding Ex.D1. Further, Ex.D1 was executed on 29.05.1967, wherein Ex.D3 is the mutation extract, which was effected in 1997. The parties to the said agreement have not acted upon it for more than 3 decades. The parties have not acted upon Ex.D1. Defendant No.3 failed to establish prior partition between the plaintiff and the defendants on 29.05.1967 and also failed to prove the execution of Ex.D1.

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Though Ex.D1 was received in evidence, the document is unregistered, and to prove the possession of the suit schedule properties the said document can be relied on for collateral purposes. Admittedly, DW.1, in his cross-examination, admitted that there is no partition effected between the parties to the suit regarding the suit schedule properties. The admission of DW.1 establishes

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that there was no such partition as alleged by defendant No.3 on 29.05.1967.

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The First Appellate Court, relying upon the decision of the Rajasthan High Court reported in AIR 2001 RAJASTHAN 372 , held that unregistered relinquishment deed cannot be admitted for collateral purposes, and it cannot be used for holding the document has extinguished the right of its executants. Admittedly, Ex.D1 is a deed of partition-cum-relinquishment which requires compulsory registration as per Section 17(1)(b) of The Registration Act. The said document is inadmissible in evidence and cannot be admitted for collateral purposes. The First Appellate Court has rightly passed the impugned judgment. I do not find any error in the impugned judgment. In view of the above discussion, I answer substantial question No.1 in the affirmative.

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Reg. Substantial question No.2 : The First Appellate Court, considering the entire evidence on record and the admission of DW.1, who has admitted during the

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cross-examination that there is no partition effected between the plaintiff and the defendants, held that Ex.D1 has not seen a day of light till it is produced before the revenue authorities in 1997 and further held that by virtue of Ex.D1, the plaintiff and defendant Nos.1 and 2 have relinquished their rights over the suit properties by receiving a sum of Rs.2,000/- from defendant No.3 by executing agreement dated 29.05.1967 and Ex.D2 is an unregistered document. The judgment relied upon by the learned Senior counsel for defendant No.3 do not apply to the present case on hand. There is no dispute regarding the proposition laid down in the said decision, but the said decision is not applicable to the case on hand. The First Appellate Court has rightly passed the impugned judgment. I do not find any error in the impugned judgment. In view of the above discussion, I answer substantial question No.2 in the negative.

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