D.M. Gangamma Vs D.M. Hanumanthappa

SMT. D.M. JAYALAKSHMI D/O LATE MUDDUHANUMAIAH, W/O SRI. D.B. CHANDRAIAH, AGED ABOUT 50 YEARS R/AT "SHRI RANGA NILAYA", NO.899, 1^ST 'A' CROSS, MUNIKONDAPPA LAYOUT, BENGALURU - 560 073..

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... RESPONDENTS

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(BY SRI. T. SHESHAGIRI RAO, ADVOCATE FOR R1(a) TO R1(d) AND R2. SMT. SANGEETA SANGANNAVAR, ADVOCATE FOR R8; V/O 15.11.2024, NOTICE TO R7 HELD SUFFICIENT; V/O 15.11.2024 APPEAL IS DISMISSED AS ABATED AGAINST R6; R3 TO R5 SERVED)

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HC-KAR

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 29^TH AUGUST, 2015 PASSED IN REGULAR APPEAL NO.222 OF 2013 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING THE APPEAL IN-PART AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 20^TH JULY, 2013 PASSED IN ORIGINAL SUIT NO.111 OF 2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., NELAMANGALA, DISMISSING THE SUIT OF THE PLAINTIFFS.

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IN R.S.A. NO.1704/2015

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BETWEEN

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D.M. HANUMANTHAPPA SINCE DECEASED, REP. BY LRS.

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1(a). SMT. NINGAMMA W/O LATE D.M. HANUMANTHAPPA, AGED ABOUT 54 YEARS.

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1(b). MR. D.H. SHIVAKUMAR S/O LATE D.M. HANUMANTHAPPA, AGED ABOUT 35 YEARS.

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1(c). MR. D.H. VIJAY KUMAR S/O LATE D.M. HANUMANTHAPPA, AGED ABOUT 32 YEARS.

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1(d). MR. D.H. KIRAN S/O LATE D.M. HANUMANTHAPPA, AGED ABOUT 21 YEARS.

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ALL ARE RESIDING AT: DOMBARAHALLI VILLAGE, LAKSHMIPURA POST, DASANPURA HOBLI,

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HC-KAR

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BENGALURU NORTH TALUK, BENGALURU - 562 162.

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SRI. D.M. RAMANJINAPPA S/O LATE MUDDAHANUMAIAH, AGED ABOUT 62 YEARS, R/AT DOMBARAHALLI VILLAGE, LAKSHMIPURA POST, DASANAPURE HOBLI, BENGALURU NORTH TALUK - 562 162.

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...APPELLANTS

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(BY SRI. T. SHESHAGIRI RAO, ADVOCATE)

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AND

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D.M. GANGAMMA SINCE DECEASED, REP. BY LRS.

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SRI. M.G. RANGASWAMAIAH H/O LATE D.M. GANGAMMA, AGED ABOUT 67 YEARS.

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SRI. M.R. VIVEK KUMAR S/O SRI. M.G. RANGASWAMAIAH, AGED ABOUT 40 YEARS.

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SMT. V.R. VEENA D/O SRI. M.G. RANGASWAMAIAH, W/O SRI. SATISH KUMAR, AGED ABOUT 37 YEARS.

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SRI. M.R. PRASANTH S/O SRI. M.G. RANGASWAMAIAH AGED ABOUT 32 YEARS.

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SRI. M.R. RAGHAVENDRA (KUMAR) S/O SRI. M.G. RANGASWAMAIAH AGED ABOUT 27 YEARS.

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RESPONDENTS NO.1 TO 5 ARE R/AT NO.294, 4^TH CROSS,

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7^TH BLOCK, KORAMANGALA, BENGALURU - 560 034.

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M.R. LAKSHMIDEVAMMA SINCE DEAD BY HER LRS.

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SRI. CHANDRA S/O LATE D.M. LAKSHMINARAYANAPPA, AGED ABOUT 28 YEARS.

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SMT. SWETHA D/O LATE D.M. LAKSHMINARAYANPPA, AGED ABOUT 26 YEARS.

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SMT. MANJULA D/O LATE D.M. LAKSHMINARAYANAPPA, AGED ABOUT 24 YEARS.

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SMT. NANDINI D/O LATE D.M. LAKSHIMINARAYANAPPA AGED ABOUT 20 YEARS

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RESPONDENTS NO.6 TO 9 ARE R/AT ANJINEYA NILAYA, D.M. LAKSHMINARAYANA LAYOUT, SIDDANAHOSAHALLI, DASANAPURA HOBLI, BENGALURU NORTH TALUK - 562 162.

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SMT. D.M. JAYALAKSHMI D/O LATE MUDDAHANUMAIAH, W/O D.B. CHANDRAIAH, AGED ABOUT 52 YEARS, R/AT SRIRANGA NILAYA, I 'A' CROSS, MUNIKONDAPPA LAYOUT, BENGALURU - 560 073.

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….RESPONDENTS

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(BY SRI. G. BALAKRISHNA SHASTRY, ADVOCATE FOR SMT. S.B. LAKSHMI, ADVOCATE FOR R1 TO R5; SMT. SANGEETA SANGANNAVAR, ADVOCATE FOR R10; R6 TO R9 - SERVED)

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HC-KAR

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 29^TH AUGUST, 2015 PASSED IN REGULAR APPEAL NO.222 OF 2013 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING THE APPEAL IN-PART AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 20^TH JULY, 2013 PASSED IN ORIGINAL SUIT NO.111 OF 2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., NELAMANGALA, DISMISSING THE SUIT OF THE PLAINTIFFS.

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THESE REGULAR SECOND APPEALS HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT, THIS DAY, E.S. INDIRESH J., DELIVERED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH

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CAV JUDGMENT

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In Regular Second Appeal No.2027 of 2015, appellants are the legal representatives of the original plaintiff, challenging the judgment and decree dated 29^th August, 2015 passed in Regular Appeal No.222 of 2013 on the file of the Principal District Judge, Bengaluru Rural District, Bengaluru (for short, hereinafter referred to as 'First Appellate Court'), allowing the appeal in-part and decreeing the Original Suit No.111 of 2009 filed BY the plaintiffs on the file of the Senior Civil Judge and JMFC., Nelamangala (for short, hereinafter referred to as 'Trial Court') in-part.

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HC-KAR

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In Regular Second Appeal No.1704 of 2015, appellants are the defendants 1 and 2, challenging the judgment and decree dated 29^th August, 2015 passed in Regular Appeal No.222 of 2013 on the file of the First Appellate Court, allowing the appeal in-part and modifying the judgment and decree passed in Original Suit No.111 of 2009 filed by the plaintiffs on the file of the Trial Court.

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For the sake of convenience, parties in these appeals are referred to in terms of their ranking before the Trial Court.

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The relevant facts for adjudication of these appeals are that the plaintiff No.1-D.M. Gangamma, plaintiff No.2-D.M. Anasuya, defendant No.1-D.M. Hanumanthappa, defendant No.2-D.M. Ramanjanappa, husband of the defendant No.3-D.M. Lakshminarayanappa and defendant No.4-D.M. Jayalakshmi are

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the children of late Muddha Hanumaiah and late Dodda Arasamma. It is the case of the plaintiffs that, their father Mudda Hanumaiah had several properties mentioned in the schedule to the plaint, which are the joint family properties of the plaintiffs and defendants and accordingly, plaintiffs sought

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for share in the suit schedule properties and same was denied

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by the defendants and as such, the plaintiffs have filed Original Suit No.111 of 2009 before the Trial Court, seeking one-sixth share each in the suit schedule properties.

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After service of notice, defendants 1 to 3 entered appearance and filed written statement. Defendant No.4 remained absent and accordingly, she was placed ex-parte. It is the specific case of the defendants 1 to 3 that there was an oral partition among the members of the joint family properties of plaintiffs and defendants and same was reduced into writing on 15^th February, 1989 and thereafter, the said partition was given effect to by entering the name of the defendants in the revenue records. It is also stated that, after partition, the suit properties, which fall into the share of the plaintiffs, have been sold in favour of the third parties by the plaintiffs and accordingly, the defendants 1 to 3 sought for dismissal of the suit.

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The Trial Court, based on the pleadings on record, formulated the issues for its consideration.

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HC-KAR

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In order to establish their case, plaintiffs examined the son of the plaintiff No.1(a) as PW1-M.R. Vivek Kumar [Plaintiff No.1(b)] and produced 46 documents, which were marked as Exhibits P1 to P46. On the other hand, defendants examined two witnesses as DW1 and DW2 and got marked 10 documents as Exhibits D1 to D10.

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Perusal of the order sheet in the suit would indicate that, originally the suit was filed before the I Additional Civil Judge (Sr.Dn.), Bengaluru Rural District, Bengaluru in Original Suit No.987 of 2002 and thereafter, the suit was transferred to Civil Judge (Sr.Dn.) and JMFC., Nelamangala as per order dated 24^th April, 2009. After transfer, the suit was renumbered as Original Suit No.111 of 2009. It is also to be noted that, during the pendency of the suit, the plaintiff No.2-D.M. Anasuya filed memo seeking withdrawal of the suit and accordingly, the suit was prosecuted by the plaintiff No.1.

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The Trial Court, after considering the material on record, by judgment and decree dated 20^th July, 2013, dismissed the suit of plaintiffs. Being aggrieved by judgment and decree passed in Original Suit No.111 of 2009, legal

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representatives of the plaintiff No.1 have filed Regular Appeal No.222 of 2013 before the First Appellate Court and same was resisted by the defendants. The First Appellate Court, after reappreciating the material on record, by judgment and decree dated 29^th August, 2015, allowed the appeal in-part holding that the plaintiff No.1 is entitled for one-sixth share in respect of item Nos.1 to 6 and 12 of the plaint schedule properties and dismissed the suit in respect of other items claimed by the plaintiff No.1. Hence, legal representatives of the plaintiff No.1 preferred Regular Second Appeal No.2027 of 2015 and defendants 1 and 2 preferred Regular Second Appeal No.1704 of 2015.

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In Regular Second Appeal No.2027 of 2015, this Court, by order dated 23^rd November, 2024, admitted the appeal to consider the following substantial question of law:

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"Whether first appellate court was justified in dismissing suit in respect of items no.9 to 11, 13 to 15 of suit properties?"

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In Regular Second Appeal No.1704 of 2015, this

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Court, by order dated 12^th July, 2016, admitted the appeal to consider the following substantial questions of law:

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"(i) Whether the Lower Appellate Court is justified in reversing the judgment and decree of the trial Court granting 1/6^th share, when there was an earlier partition which is reflected in the recitals of the sale deeds - Exs.D.1 and D.2 and mutation extract - Ex.D.5 on the basis of the earlier partition?

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(ii) Whether the Lower Appellate Court is justified in reversing the judgment and decree of the trial Court ignoring the material admissions made by P.W.1 in the cross-examination and the recitals contained in the sale deed with regard to partition?

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(iii) Whether the Lower Appellate Court is justified in reversing the judgment and decree of the trial Court without following the mandatory procedure as contemplated under the provisions of Order 41 Rule 31 of the Code of Civil Procedure, 1908?

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(iv) Whether the Lower Appellate Court is justified in reversing the judgment and decree of the trial Court in the facts and circumstances of the present case?"

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Heard Sri. G. Balakrishna Shastry, learned counsel

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on behalf of Smt. S.B. Lakshmi, appearing for the appellants in Regular Second Appeal No.2027 of 2015 and respondents 1 to 5 in Regular Second Appeal No.1704 of 2015; Sri. T. Sheshagiri Rao, learned counsel appearing for appellants in Regular

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Second Appeal No.1704 of 2015 and legal representatives of respondent No.1 i.e. respondents 1(a) to 1(d) and respondent No.2 in Regular Second Appeal No.2027 of 2015; and Smt. Sangeeta Sangannavar, learned counsel appearing for the respondent No.8 in Regular Second Appeal No.2027 of 2015 and respondent No.10 in Regular Second Appeal No.1704 of 2015.

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Sri. G. Balakrishna Shastry, learned counsel appearing for appellants in Regular Second Appeal No.2027 of 2015 i.e., for the plaintiffs, argued that the plaintiffs were constrained to file the instant suit due to unequal partition in the suit schedule properties and that apart, DW1 has stated in the examination-in-chief that, on humanitarian consideration, the portion of the suit property was given to the plaintiffs and the said aspect of the matter was ignored by both the Courts below. Accordingly, he sought for interference of this Court.

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Sri. G. Balakrishna Shastry, learned counsel, further, contended that, late D.M. Lakshminarayanappa, husband of the defendant No.3 entered into a Palupatti and based on the same, the Exhibit D5-Mutation Extract came to be

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issued by the Tahsildar and the plaintiff No.1 is not a signatory to the said arrangement made by the defendants 1 to 3. He further submitted that the Courts below have not properly appreciated the Exhibit D5-Mutation Extract in a right perspective despite the admission has been made by the DW1.

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Sri. G. Balakrisha Shastry, learned counsel invited the attention of the Court to Exhibit D3-Release Deed said to have been executed by Smt. Anasuya in favour of defendants 1 and 2 during the pendency of the suit and argued that the release deed was executed without there being any allotment made in favour of the said Smt. Anasuya. It is further contended by learned counsel Sri. G. Balakrishna Shastry that, the First Appellate Court, had committed an error in not granting relief in respect of some of the items of the schedule properties and therefore, the plaintiffs are entitled for share in all the suit schedule properties.

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Per contra, Sri. T. Sheshagiri Rao, learned counsel appearing for respondents 1(a) to 1(d) and the respondent No.2 in Regular Second Appeal No.1704 of 2015 i.e., legal representatives of the defendant No.1 and the defendant No.2

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submitted that, there was earlier partition effected between the plaintiffs and defendants and same was reduced into writing on 15^th February, 1989. He further submitted that, based on the said partition, mutation register was changed in MR No.61/9293 (Exhibit D5) and accordingly, contended that the FirstAppellate Court has committed an error in interfering with the judgment and decree passed by the Trial Court. Sri. T. Sheshagiri Rao, learned counsel invited the attention of the Court to paragraph 12 of the plaint and paragraph 5 of the cross-examination of the PW1 and contended that the plaintiff admits about the earlier partition effected between the parties and therefore, the prayer made in the plaint claiming one-sixth share in the suit schedule property does not survive for consideration. Accordingly, he sought for dismissal of the suit by confirming the judgment and decree passed by the Trial Court.

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Nextly, it is contended by Sri. T. Sheshagiri Rao, learned counsel that the recitals in Exhibits D1 and D2Registered Sale Deeds dated 10^th May, 1995 makes it clear that the original plaintiff herself admits that she got schedule

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properties through partition/panchayat parikat. Learned counsel further argued that, the said aspect of the matter was ignored by the First Appellate Court and total miscarriage of justice had been caused to the defendants and as such, invited the attention of the Court to the judgment of the Hon'ble Supreme Court in the case VINEETA SHARMA vs. RAKESH SHARMA AND OTHERS reported in AIR 2020 SC 3717, in the case of KALYANI (DEAD) BY LRS. vs. NARAYANAN AND OTHERS reported in AIR 1980 SC 1173 and the judgment of the Patna High Court in the case of MARJADI DEVI AND OTHERS vs. JAGARNATH SINGH AND OTHERS reported in AIR 1983 PATNA 129 and contended that the plaintiff has not approached the Court with clean hands and suppressed the fact of earlier partition effected between the parties. Accordingly, he sought for dismissal of the suit.

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In the light of the submission made by learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below and perused the original records. In order to understand the relationship

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between the parties, the genealogy of the parties is extracted

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as below :

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HANUMA NARASAIAH
MUDDA HANUMAIAH
(DEAD)
DODDA ARASAMMA
D.M.Gangamma D.M.Hanumanthaiah D.M.Ramangenappa
D.M.Lakshminarayana D.M.Ramangenappa D.M. Anusuya
(Dead)
D.M.Lakshmi Devamma
(Wife)
Chandra Shwetha Manju Nandini
(Minor) (Minor) (Minor) (Minor)

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Perusal of the genealogy would indicate that the

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plaintiff-D.M.Gangamma and defendants 1, 2, 4 and husband of the defendant No.3 (D.M. Lakshminarayana) and the plaintiff No.2 (D.M. Anasuya) are the children of Muddahanumaiah and Dodda Arasamma. It is not in dispute with regard to relationship between the parties and further, all the parties

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agreed that the suit schedule properties are the joint family properties of the plaintiffs and defendants. During the pendency of the suit, the plaintiff No.2-D.M. Anasuya filed Memo dated 20^th November, 2006, seeking withdrawal of the suit and accordingly, the suit came to be dismissed on 20^th November, 2006 in respect of the plaintiff No.2, which reads as under:

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"20/11/2006

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Plaintiff No.2 filed a Memo to dismiss the suit as withdrawn. LRs. of plaintiff No.1 absent. They have not signed the memo. Defendants also absent. Under the circumstances, suit filed by the plaintiff No.2 is dismissed as withdrawn. In respect of suit filed by the plaintiff No.1 is concerned, suit would be continued. Plaintiffs evidence by 04/1/07."

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In the backdrop of the arguments advanced by learned counsel appearing for the parties, prayer in the plaint would indicate that the plaintiffs have made a claim for onesixth share each in the suit schedule properties. At paragraph 12 of the plaint, the plaintiffs admits that there was a partition, however, unequal share has been made in favour of the plaintiffs. The said admission in the pleadings requires no

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corroboration as the plaintiffs have admitted about the earlier partition in the plaint itself. In this regard, it is relevant to cite the judgment of Hon'ble Supreme Court in the case of NAGINDAS RAMDAS vs. DALPATRAM ICHHARAM @ BRIJRAM AND OTHERS reported in (1974)1 SCC 242, wherein, at paragraph 27 held as under:

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"27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the

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other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."

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(emphasis supplied)

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The aforementioned dictum was reiterated by the Hon'ble Supreme Court in the case of SANGRAMSINH P. GAEKWAD AND OTHERS VS. SHANTADEVI P. GAEKWAD

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AND OTHERS reported in (2005)11 SCC 314. Paragraph 216 reads as under:

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" 216. In Nagindas Ramdas v. Dalpatram Ichharam [(1974) 1 SCC 242, this Court held:

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“27[26].… Admissions if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.”

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(emphasis supplied)

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I have also carefully examined the paragraph 5 of

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the cross-examination of PW1. The PW1 in his cross-

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examination admits about the earlier partition in the joint family of the plaintiffs and defendants and two items of the suit schedule properties were allotted to the share of his mother (plaintiff No.1-Gangamma) and same was sold on 10^th May, 1995 (Exhibit D1 and D2) by the plaintiff No.1. I have also carefully examined the recitals in the registered Sale Deed dated 10^th May, 1995, wherein, the plaintiff-Gangamma had sold her share in the property in favour of one Saraswathamma and P. Kajjaleshwara Chetty and in the said registered Sale Deed, it is stated in unequivocal words that the plaintiffGangamma acquired schedule properties in the Sale Deeds through panchyat parikat/partition and the said admission in the registered Sale Deeds accompanied by the oral admission made by PW1, makes it clear that there was an earlier partition in the joint family. It is also to be noted that the paragraph 12 in the plaint demonstrates the division of joint family properties in the panchayat parikat and therefore, the finding recorded by the Trial Court on issue Nos.1 and 2 is just and proper. In that view of the matter, I am of the view that the Trial Court has rightly dismissed the suit and same has been erroneously

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interfered with by the First Appellate Court without reappreciating the oral and documentary evidence.

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In the light of the conclusion arrived that there was an oral partition on 15^th February, 1989 and same was reduced into writing and accordingly, mutation has been changed in terms of the said panchayat parikat in MR No.61/1992-93 (Exhibit D5) which corroborates the actual division of property by the members of the joint family of plaintiff and defendants. In this regard, paragraph 127 and 128 in judgment of the Hon'ble Supreme Court in the case of VINEETA SHARMA (supra ) held as under:

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"127. A special definition of partition has been carved out in the explanation. The intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of section 6, the intendment of legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of section 6(5) are required to

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be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet

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intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place."

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128. The expression used in Explanation to Section 6(5) ‘partition effected by a decree of a court’ would mean giving of final effect to actual partition by passing the final decree, only then it can be said that a decree of a court effects partition. A preliminary decree declares share but does not effect the actual partition, that is effected by passing of a final decree; thus, statutory provisions are to be given full effect, whether partition is actually carried out as per the intendment of the Act is to be found out by Court. Even if partition is supported by a registered document it is necessary to prove it had been given effect to and acted upon and is not otherwise sham or invalid or carried out by a final decree of a court. In case partition, in fact, had been worked out finally in toto as if it would have been carried out in the same manner as if affected by a decree of a court, it can be recognized, not otherwise. A partition made by execution of deed duly registered under the Registration Act, 1908, also refers to completed event of partition not merely intendment to

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separate, is to be borne in mind while dealing with the special provisions of Section 6(5) conferring rights on a daughter. There is a clear legislative departure with respect to proof of partition which prevailed earlier; thus, the Court may recognise the other mode of partition in exceptional cases based upon continuous evidence for a long time in the shape of public document not mere stray entries then only it would not be in consonance with the spirit of the provisions of Section 6(5) and its Explanation.

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(emphasis supplied)

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Proviso to Section 6(1) of the Hindu Succession Act, 1956 saves the division of properties in the Coparcenary property, if such partition took place before 20^th December, 2004. Following the proviso under Section 6(1) of the above Act and the dictum of the Hon'ble Supreme Court in the case of VINEETA SHARAMA (supra), I am of the view that the defendants have proved the earlier partition effected between the plaintiffs and the defendants and same has reached finality and as such, the plaintiffs cannot seek partition of the suit schedule property for the second time in the present suit. Therefore, the prayer made in the plaint does not survive for consideration since there was already partition in the joint family of plaintiff and defendants.

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It is also to be noted that the plaintiffs admitted the partition at the paragraph 12 of the plaint and in the crossexamination of the PW1 makes it clear that, there was a partition prior to the filing of the suit and it is not the case of the plaintiffs for reopening of the earlier partition. Therefore, the dictum of the Division Bench of the Patna High Court in the case of MARJADI DEVI (supra) is squarely applicable to the facts on record. It is also pertinent to mention here that, the Hon'ble Supreme Court in the case of NAGINDAS RAMDAS (supra) held that the admission made in the pleadings is to be accepted as best evidence to prove the facts on record and in the present case, such admitted pleadings in the plaint should not be countered by the plaintiffs in the evidence.

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The Hon'ble Supreme Court in the case of VINEETA SHARMA (supra), had clearly held that the scope of Section 6 of the Hindu Succession Act, 1956 is to protect the interest of the daughters as a coparcener and such right has to be established by the parties before the Court through cogent evidence and as such, if there is prior partition or alienation of property before the amendment made to Section 6 of the Hindu

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Succession Act, 1956, those transaction/partitions in the Hindu

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Joint Family are saved as per the proviso to Section 6 of the Hindu Succession Act. The PW1, in his evidence admits about the prior oral partition effected between the parties and the paragraph 12 of the plaint also makes it clear that the plaintiff No.1 got share in the suit schedule property during the partition in the Hindu Joint Family of the plaintiffs and defendants. It is also forthcoming from the recitals in Exhibits D1 and D2 as to the fact of partition effected within the joint family, which is a registered document and therefore, there was no occasion for the plaintiffs to institute suit for partition for second time. In this regard, it is relevant to cite the judgment of Hon'ble Supreme Court in the case of VIKRANT KAPILA AND ANOTHER vs. PANKAJA PANDA AND OTHERS

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reported in AIR 2023 SC 5579, wherein at paragraphs 22.1 to 25 held as under:

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22. The examination of merits can be compartmentalized as to whether the pronouncement of judgment on alleged admission is legal and if so, whether the interpretation of clauses is held valid and confirms the precedents on this point. From the above preface, it is appreciated that the second part of the examination

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arises subject to a view or conclusion on the first part of our examination.

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"22.1. The judicial discretion conferred on the Court is structured on the definition of admission under Section 17 of the Evidence Act, 1872 and Rule 5 of Order VIII, Rule 6 of Order XII and Rules 1 & 2 of Order XV of the CPC.

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22.2. An “admission” means, ‘a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.

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22.3. Admission in pleadings means a statement made by a party to the legal proceedings, whether oral, documentary, or contained in an electronic form, and the said statement suggests an inference with respect to a fact in issue between the parties or a relevant fact. It is axiomatic that to constitute an admission, the said statement must be clear, unequivocal and ought not to entertain a different view. Coming to admission in pleadings, these are averments made by a party in the pleading, viz., plaint, written statement, etc., in a pending proceeding of admitting the factual matrix presented by the other side. To constitute a valid admission in pleading, the said admission should be unequivocal, unconditional, and unambiguous, and the admission must be made with an intention to be bound by it. Admission must be valid without being proved by adducing evidence and enabling the opposite party to succeed without trial. A court, while pronouncing a judgment on admission, keeps in its perspective the requirements in Order VIII Rule 5, Order XII Rule 6 and Order XV Rules 1 & 2, CPC read with Sections 17, 58 and 68 of the Indian Evidence Act.

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22.4. The logic behind such jurisprudential examination of an admission is that a judgment pronounced on admission, not only denies the right of trial on an issue but denies the remedy

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of appeal. Hence, discretion has to be exercised judiciously and objectively while making a judgment on admission in a pleading. The existence of the power to pronounce a judgment on admission under Rule 6 of Order XII4 and Rules 1 and 2 of Order XV, is not an issue in the appeal but rather the issue is whether pronouncing judgment on alleged admission is valid and legal.

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23. When the admissions are categorical and unequivocal, the remedies available against such a decree are limited. In a given case, as in the present appeal, if there is an argument on whether there is an admission of a fact or a document, before examining the merits of the matter, this Court ought to verify whether admission exists or not and also whether the circumstances relied upon by the Learned Single Judge can be constituted as admission for rendering a Judgment. At this juncture, we would like to place on record the answer of the Learned Counsel appearing for the Plaintiffs and Defendant Nos. 1 and 3, to our query, whether their clients are admitting the existence of the Will dated 18.11.1999 or the Will is contested. We notice that the Learned Counsel, going by the pleadings, reply that their clients do not admit the existence and the execution of the Will dated 18.11.1999, which is said to have been executed by Sheila Kapila.

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24. In Uttam Singh Dugal v. United Bank of India, reiterating the objects and reasons set out while amending Rule 6 of Order XII, CPC, it was stated that “where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on

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the admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled.

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24.1. Further, the Trial Court can refuse to pass a decree “when a statement is made to a party and such statement is brought before the court showing admission of liability by an application filed under Order XII, Rule 6 and the other side has sufficient opportunity to explain the said admission and if such explanation is not accepted by the court.”

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24.2. In the same judgment, the scope and effect of “admissions” was examined and it was held that “admissions generally arise when a statement is made by a party in any of the modes provided under Sections 18 to 23 of the Evidence Act, 1872”.

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24.3. Further, this Court in Uttam Singh Duggal (supra), while adverting to Section 17, Indian Evidence Act, 1872, which provides for admissions through statements in oral, documentary and in electronic form, expanded the scope of admissions and recognised that “admissions are of many kinds : they may be considered as being on the record as actual if that is either in the pleadings or in answer to interrogatories or implied from the pleadings by non-traversal. Secondly as between parties by agreement or notice”. The case on hand considers an alleged admission in the pleading including the reply given on admission and denial of documents. The provisions under Rule 5 of Order VIII, Rule 6 of Order XII, and Rules 1 and 2 of Order XV of the CPC, enable a court to pronounce a judgment on admission. The court is called upon to exercise judicial discretion conferred on it by the CPC and the Indian Evidence Act, 1872. The judicial discretion shall always be in addition to the

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provisions covering the judgment on admission and guided by the best of wit and wisdom of the Court in pronouncing a judgment on admission. The bottom line is that while ensuring judicial discretion, the court does not avoid a trial on an issue where a trial is needed, and findings recorded; alternatively, the court does not try an issue in which there is no contest between the parties. The weighing of options or judicial discretion is dependent on the peculiar circumstances of the case or the nature of the controversy that the court is considering.

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25. In Himani Alloys Ltd. v. Tata Steel Ltd.7 it is held that ‘Admissions’ should be categorical and intentional, as Order XII, Rule 6, CPC allows discretion rather than obligation. Admissions result in judgments without trial which permanently deny any remedy to the defendant, by way of an appeal on merits. Therefore, unless the admission is clear, unambiguous, and unconditional, the discretion of the Court is not exercised to deny the valuable right of a defendant to contest the claim. Hence, discretion should be used only where there is a clear and unequivocal admission. The relevant paragraphs read thus:

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“11. It is true that a judgment can be given on an “admission” contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore, unless the admission is clear, unambiguous and

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RSA NO.1704 OF 2015

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unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear “admission” which can be acted upon. There is no such admission in this case.”

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27. For the foregoing reasons, having taken note of the

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prayer in the plaint, the substantial question of law referred to above favours the defendants, and further, the First Appellate Court has misconstrued the material on record and allowed the appeal filed by the legal representatives of the plaintiff No.1, which suffer from infirmity and the First Appellate Court has not re-appreciated the material on record in terms of scope and ambit of Order XLI Rule 31 of the Code of Civil Procedure and as such, same is required to be interfered with under Section 100 of Code of Civil Procedure. Having assessed the finding recorded by both the Courts below, I am of the considered opinion that, there is a perversity in the judgment and decree passed by the First Appellate Court, interfering with the well reasoned judgment and decree passed by the Trial Court. Hence, I pass the following:

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O R D E R

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a) R.S.A. No.2027 of 2015 is hereby dismissed ;

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b) R.S.A. No.1704 of 2015 is hereby allowed ;

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c) Judgment and Decree dated 29^th August, 2015 passed in Regular Appeal No.222 of 2013 on the file of the Principal District Judge, Bengaluru Rural District, Bengaluru is hereby set-aside;

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d) Judgment and Decree dated 20^th July, 2013 passed in Original Suit No.111 of 2009 on the file of the Senior Civil Judge and JMFC., Nelamangala is hereby confirmed;

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e) The suit of the legal representatives of the plaintiff No.1 is hereby dismissed accordingly.

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SD/(E.S. INDIRESH) JUDGE

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ARK List No.: 1 Sl No.: 61

D.M. Gangamma v. D.M. Hanumanthappa

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D.M. Gangamma v. D.M. Hanumanthappa

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