Sri Naveen Kumar Vs Smt Lakshminarayanamma

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 11.9.2013 PASSED IN R.A.NO.180/2012 ON THE FILE OF THE IV ADDL. DISTRICT & SESSIONS JUDGE, DODDABALLAPUR, BANGALORE RURAL DISTRICT, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 26.5.2012 PASSED IN O.S.NO.215/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., DODDABALLAPURA.

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THIS APPEAL, COMING ON FOR FINAL 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 appellant challenging the judgment and decree dated 11.09.2013 passed in R.A.No.180/2012 by the learned IV Additional District and Sessions Judge, Doddaballapura, Bengaluru Rural District, Bengaluru, and the judgment and decree

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dated 26.05.2012 passed in O.S.No.215/2008 by the learned Senior Civil Judge and JMFC, Doddaballapura.

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For convenience, the parties are referred to, based on their ranking before the trial Court. The appellant was the plaintiff, and the respondents were the

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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 a partition and separate possession. It is the case of the plaintiff that defendant No.1 is his mother, one Thellappa is his grand father having 3 sons and 2 daughters i.e., the plaintiff's father and defendant Nos.2 to 5. It is contended that the suit schedule properties are the ancestral/joint family properties of both the plaintiff and the defendants. The plaintiff and the defendants are members of the Hindu Undivided Joint Family, and no partition has been effected between the plaintiff and the defendants. It is contended

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that the plaintiff after verifying the revenue records came

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to know that a partition was affected among the defendants leaving behind the plaintiff and defendant No.5. Therefore, plaintiff demanded partition and separate possession, but the defendants refused to effect the partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

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Defendant No.1 filed a written statement admitting the averments made in the plaint, and accordingly, prays to decree the suit of the plaintiff.

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Defendant Nos.2 and 4 filed a written statement

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denying the averments made in the plaint and it is contended that there was a partition between the Thellappa, Smt.Lakshminarayanamma i.e. defendant No.1, Ashwathappa, Narasamma and T.Gangadharaiah on 19.05.2003. In the said partition 'A' schedule property fell to the share of Tellappa, 'B' schedule property fell to the

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share of defendant No.1- Lakshminarayanamma, 'C' schedule property fell to the share of Ashwathappa, 'D' schedule property fell to the share of Narasamma, 'C' schedule property fell to the share of Gangadharaiah.

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The parties, based on the registered partition deed dated 19.05.2003, submitted an application to the revenue authorities to effect the mutation based on the partition deed. The revenue authorities entered the names of the respective parties in the revenue records regarding their respective shares. It is contended that the plaintiff's mother represented the entire grants and accepted the 'B' schedule property. Hence, defendant No.1 filed the present suit with the plaintiff after 5 years from the date of execution of the registered partition deed.

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It is contended that the plaintiff has no locus standi to file a suit for partition and separate possession, and it is contended that as on the date of filing the suit, the suit schedule properties were not the ancestral/joint

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family properties of the plaintiff and defendants. Hence, there is no cause of action to file a suit for partition and separate possession. Accordingly, prays to dismiss the suit against defendant Nos.2 and 4.

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Defendant Nos.3 and 5 were placed exparte as

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they did not appear in pursuance of the suit summons.

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The trial Court, based on the pleadings of the parties, framed the following issues.

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1. Whether plaintiff proves that he is having 1/5^th share in the suit schedule properties?

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2. Whether plaintiff proves that partition deed dated 19.05.2003 held between defendants No.1 to 4 is not binding on him?

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3. Whether suit is properly valued and court fee paid is sufficient?

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4. Whether defendants prove that partition with respect to the suit schedule properties was already taken place?

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5. Whether plaintiff is entitle for the relief sought by him?

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6. What order or decree?

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The plaintiff, to substantiate his case, examined himself as PW1, examined three witnesses as PW2 to PW4, and marked 132 documents as Ex.P1 to Ex.P132. In rebuttal, defendant No.1 was examined as DW5, 4 witnesses were examined as DW1 to DW4, and 28 documents were marked as Ex.D1 to Ex.D28.

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The trial Court, after recording the evidence, hearing both sides and after assessing the verbal and documentary evidence, answered issue Nos.3 and 4 in the affirmative, issue Nos.1, 2 and 5 in the negative, issue No.6 as per the final order. The suit of the plaintiff was dismissed with costs vide judgment dated 26.05.2012. The plaintiff, aggrieved by the judgment, and preliminary decree passed in O.S.No.215/2008 preferred an appeal in R.A.No.180/2012 on the file of the IV Additional District and Sessions Judge, Doddaballapura, Bangalore Rural District, Bangalore.

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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 impugned judgment decreed passed by the trial court under appeal is perverse, capricious and arbitrary and it calls for any interference by this court?

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2. Whether the appellant has made out grounds to allow IA.No.II as prayed by him?

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2. What Order?

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The first appellate Court, after re-assessing the

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verbal and documentary evidence, answered point Nos.1 and 2 in the negative, and point No.3 as per the final order. The appeal was dismissed. The judgment and decree passed by the trial Court in O.S.No.215/2008 was confirmed vide judgment dated 11.09.2013. The plaintiff, aggrieved by the impugned judgments, filed this Regular Second Appeal.

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Heard the arguments of the learned counsel for the plaintiff and the learned counsel for the defendant Nos.2 and 4.

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Learned counsel for the plaintiff submits that, as on the date of the alleged partition, the plaintiff was a major and the plaintiff was not made a party to the partition deed. Hence, the partition deed dated 19.05.2003 is not binding on the plaintiff. He also submits that the plaintiff has produced the documents before the first appellate Court by filing an application for the production of additional evidence, i.e., the SSLC Marks Card, to show that the plaintiff was a major as on the date of execution of a registered partition deed, i.e., 19.05.2003. He also submits that there is no limitation prescribed for filing a suit for partition and separate possession. Hence, on these grounds, he submits that both the Courts below have committed an error in passing the impugned judgments. Learned counsel for the plaintiff also submits that the partition effected is unequal. Hence,

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on these grounds, he also submits that the partition is required to be re-opened, and a fresh partition is to be effected. Hence, he prays to allow the appeal.

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Per contra, learned counsel for the defendant Nos.2 and 4 submits that there was a partition effected between Thellappa, Laksminarayanamma, i.e., defendant No.1, Ashwathappa, Narasamma, and T.Gangadharaiah. Accordingly, the parties have executed the registered partition deed dated 19.05.2003. He submits that, 'B' schedule property was allotted to the defendant No.1, and the parties have acted upon the registered partition deed dated 19.05.2003. He submits that on behalf of the plaintiff, his mother represented the entire branch, and she has accepted the 'B' schedule property in the partition. He submits that the plaintiff has no right to question the partition deed on the ground of unequal partition, and further, he is estopped from challenging the registered partition deed dated 19.05.2003.

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Both the Courts below have concurrently held that the partition was effected between the mother of the plaintiff and the other members of the family. There is a disruption of the joint family, and as on the date of filing of the suit, the suit schedule properties were not an ancestral/joint family properties of the plaintiff, and the defendants. He submits that the plaintiff has filed a suit only with the intention to harass defendant Nos.2 and 4. He also submits that during the pendency of the appeal, the plaintiff had sold the 'B' schedule property in favour of the intending purchaser under a registered sale deed dated 19.07.2024, and also registered agreement of sale dated 23.02.2024 and the registered gift deed dated 05.02.2018 executed by defendant No.1. He submits that, in view of the subsequent events, which took place during the pendency of the suit, the plaintiff himself has accepted the registered partition deed dated 19.05.2003 by executing the registered sale deed in favour of Smt.S.M.Hemavathi under the registered sale deed dated

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19.07.2024 and further, the defendant No.1 also executed

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the registered sale agreement dated 23.02.2024. Hence, on these grounds, he submits that both the Courts below were justified in passing the impugned judgments. Accordingly, he prays to dismiss the appeal.

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This Court on 17.11.2020 admitted the appeal to consider the following substantial questions of law:

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1. Whether both the Courts below justified in holding that partition deed dated 19.05.2003 is binding on plaintiff?

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2. Whether the First Appellate Court is justified in rejecting the application filed by plaintiff under Order 41, Rule 27 of CPC?

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Regarding Substantial Question No.1

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The plaintiff filed a suit against the defendants for partition and separate possession, contending that the suit schedule properties are the ancestral/joint family properties of the plaintiff and the defendants, and they are

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the members of the Hindu Undivided Family, and no

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partition has been effected between the plaintiff and the defendants. The plaintiff demanded partition and separate possession. The defendants refused to effect the partition. The plaintiff, to substantiate his case, examined himself as PW1, produced documents, Ex.P1 to Ex.P132, and to establish that the suit schedule properties are ancestral/joint family properties of the plaintiff, and the defendants, and also examined 3 witnesses, as PW2 to PW4.

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During the course of cross examination, it was suggested to PW1 that the partition was effected by a registered partition deed dated 19.05.2003, and defendant No.1 had affixed her signature on the registered partition deed dated 19.05.2003. The plaintiff has not seriously disputed the said suggestion. The plaintiff also examined three witnesses as PW2 to PW4 who deposed that the plaintiff and defendants are members of the Hindu Undivided Family and no partition has been effected

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between them, and they are in joint possession and enjoyment of the suit schedule properties.

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In rebuttal, defendant No.2 was examined as DW1, who deposed that the partition was effected between defendant No.1 and the other family members on 19.05.2003. Accordingly, the partition was reduced to writing and the same was registered on 19.05.2003. In the said partition, 'B' schedule property fell to the share of defendant No.1 and the plaintiff. He deposed that, based on the partition deed, the properties were mutated in the names of the respective parties. He stated that the parties have acted upon the registered partition dated 19.05.2003, and the plaintiff was well aware of the execution of a partition deed dated 19.05.2003. The plaintiff did not choose to challenge the registered partition deed dated 19.05.2003. He states that the suit filed by the plaintiff is barred by limitation.

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Further to prove that there was a partition among the family members, the defendants have produced the original partition deed dated 19.05.2003, marked as Ex.D1, which discloses that the partition was effected between the defendant No.1 and the other family members. In the said partition, 'B' schedule property fell to the share of defendant No.1, and her branch, i.e., including the plaintiff.

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Defendant No.1 was examined as DW5. She supported the case of the plaintiff and sought to decree the suit of the plaintiff. However, defendant Nos.2 and 4, to prove that there was a partition between defendant No.1 and the family members; they examined witnesses, as DW2 to DW4.

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From the perusal of the entire evidence on record, it is clear that the plaintiff contended that the partition effected between the defendant No.1 and the other family members is unequal, and the plaintiff is not a

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party to the registered partition deed dated 19.05.2003.

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Though, the plaintiff is not a party to the registered partition deed, however, the plaintiff was represented by her mother, i.e., defendant No.1. In the said partition, 'B' schedule property shown in Ex.D1, fell to the share of defendant No.1 and her family members, i.e., the plaintiff.

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Based on the registered partition deed, the names of the respective parties were mutated regarding the properties fell to their respective shares, and further, the plaintiff had knowledge regarding the partition deed executed between the defendant No.1 and the other family members. Though, it is the case of the plaintiff that the plaintiff was a major as on the date of the alleged registered partition deed dated 19.05.2003. The plaintiff to show that he was a major, he has produced the SSLC marks card before the first appellate Court by filing an application for the production of an additional evidence.

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From the perusal of the entire evidence on record, the plaintiff is seeking the re-opening of a partition. The only question, therefore, that requires fine consideration is, whether the partition in sofar as it relates to the suit schedule properties be re-opened on the sole ground, that it was unfair, unjust to the interest of the plaintiff, where there was no fraud or misrepresentation. Where a partition has been entered into by the adult members of the joint family, each of them having minor sons, the minors are represented by their respective guardians in the partition. It was not open to any of them to challenge the validity of the partition arrangements except where it is alleged that, and proved that there has been fraud, vitiating the transaction and resulting in inequity and obviously a smaller share having been allotted to the particular adult member who represents minor son.

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The mere fact that, apparently, the shares appear to be unequal is no valid reason/ground for

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reopening the partition at the instance of the minor sons of an adult member who was party to the partition. Because, in a partition arrangement, so many factors entered into the reckoning with reference to the proper shares to be allotted and unless it can be distinctly felt that there had been an element of over reaching or fraud, taking advantage of the incapacity or other disqualification of a particular member. The partition should rarely be reopened.

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Admittedly, in the instant case, the plaintiff has not pleaded that the defendant Nos.2 and 4 played a fraud, misrepresentation etc., on defendant No.1 and executed Ex.D1. Further, though the plaintiff has contended that the partition is unequal. Defendant No.1 was a party to the registered partition deed dated 19.05.2003. Defendant No.1 has not raised any objections at the time of effecting the partition on the ground that the property allotted to the share of defendant No.1 is unequal.

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Subsequently, after 5 years from the date of execution of Ex.D1, the plaintiff has filed his suit only on the ground that the partition effected under Ex.D1 is unequal. The trial Court considering the factors, reckoning, that require to that proper shares to be allotted has rightly, held that the plaintiff has failed to establish that he is entitled to a 1/5^th share in the suit schedule properties and also held that the plaintiff has failed to prove that the partition deed dated 19.05.2003 executed among the defendant Nos.1 to 4 is binding on him. The defendants have proved that the partition was effected between defendant Nos.1 to 4 on 19.05.2003, and the suit schedule properties were already divided between them, and the plaintiff is not entitled to the relief sought for in the suit. The first appellate Court, considering the entire evidence on record, has re-appreciated the entire evidence on record and has held that the plaintiff has failed to establish that the partition effected on 19.05.2003 is not binding. The mother of the plaintiff i.e, defendant No.1 was a party

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to the registered partition deed, and subsequently, defendant No.1 supported the plaintiff's share by filing a consent written statement. This itself goes to show that the plaintiff and defendant No.1 colluded with each other, and defendant No.1 got filed the present suit, through the plaintiff. The partition effected between defendant Nos.1 to 4 is binding on the plaintiff as his mother i.e, defendant No.1 was a party to the registered partition deed dated 19.05.2003.

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In view of the above discussions, both the Courts were justified in holding that the partition deed dated 19.05.2003 is binding on the plaintiff. I do not find any error in the impugned judgments passed by the Court below. In view of the above discussions, I answer the substantial question of Law No.1 in the affirmative.

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Substantial question No.2

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During the pendency of the appeal before the first appellate Court, the plaintiff had filed an application

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for the production of additional documents wherein the plaintiff has produced the SSLC marks card to show that, as on the date of execution of a registered partition deed dated 19.05.2003, he was major, wherein, the SSLC marks card discloses that, he was born on 20.08.1982 and

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he admitted the said fact in the course of cross examination.

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Though he was a major as on the date of execution of a registered partition deed. The mother represented the branch of the plaintiff, and she had accepted the 'B' schedule property as shown in the registered partition deed dated 19.05.2003. The said document is not relevant for deciding the dispute.

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The said document was in the custody of the plaintiff. The plaintiff has not made any attempt to produce the said document before the trial Court despite due diligence. The plaintiff did not fulfil the requirements of Order 41 Rule 27 of the CPC, 1908. The first appellate

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Court has recorded a finding that, it does not come in a way of the plaintiff to file a suit within 3 years from the date of partition, and it is not required for the adjudication of the controversy concerning the plaintiff's age and rejected the application filed by the plaintiff for the production of additional evidence.

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As observed above, the said document is not relevant for deciding the controversy between the parties to the suit. The first appellate Court has rightly rejected an application for the production of additional evidence. I do not find any error in rejecting an application for the production of additional evidence. In view of the above discussions, I answer the substantial question of law No.2 in the affirmative.

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