IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD REGULAR FIRST APPEAL NO.836 OF 2000 BETWEEN:
J. V. LINGARAJU SON OF VEERATHAIAH SINCE DEAD REPRESENTED BY HIS LRS’ 1(a) M.S. SHARADHA WIFE OF M. SIVAPPA AGED 71 YEARS NO. 785, 20TH CROSS BSK II STAGE BENGALURU – 560 070.
1(b) LALITHA SUBBAIAH WIFE OF DR. SUBBAIAH AGED 69 YEARS R.K. PURAM COIMBATORE TAMIL NADU.
1(c) GIRIJA NATARAJ WIFE OF LATE NATARAJ AGED 61 YEARS NO. CHANMALMATH CHAMAL MUTT STREET MANDI MAHOLLA MSYORE CITY.
(BY SRI. M.R. RAJAGOPAL, ADVOCATE ) ... APPELLANTS AND 1. J. L. RAMESH SON OF J. V. LINGARAJU HARADOOR VILLAGE SUNTIKOPPA NADU SOMVARPET , KODAGU DISTRICT.
2. SMT.RAJAMMA WIFE OF J. V. LINGARAJU SINCE DECEASED REPRESENTED BY HER LRS’ APPELLANTS AND 1ST RESPONDENT) ... RESPONDENTS (BY SRI. S. SHAKER SHETTY FOR R1, R2 DECEASED) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 R/W. ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 3.8.2000 PASSED IN O.S.NO.35 OF 95 ON THE FILE OF THE CIVIL JUDGE(SR.DN.), MADIKERI, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED ON 13.02.2019 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, B.M.SHYAM PRASAD. J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the plaintiff impugning the judgment and decree dated 3.8.2000 passed in O.S.No.35/1995 on the file of the Civil Judge (Senior Division), Madikeri (for short, ‘trial Court’). The trial Court by the impugned judgment has dismissed this suit in O.S.No.35/1995, which is filed by the father, now deceased, against his only son, the respondent No.1, for partition of the immovable properties (described in Schedule ‘A’) by metes and bounds and for partition of movables (described in Schedule ‘B’). The deceased plaintiff – appellant has also prayed for a direction to render accounts for the income received from the suit schedule properties for the period commencing from one year prior to the date of suit. The deceased plaintiff – appellant also included his wife, the deceased respondent No.2 as the other defendant in the suit.
2. The deceased plaintiff- appellant died during the pendency of this appeal, and his three daughters have come on record as the legal representatives. The wife-the second defendant also died during the pendency of this appeal. Thus the dispute is continued with the daughters prosecuting the appeal against the brother, the respondent No.1. For convenience, the original parties to the suit are referred as they were arrayed before the trial Court.
3. The suit schedule properties comprise of 11 immovable properties described in the plaint schedule 'A', and a host of movable properties are described in the plaint schedule 'B. The Plaintiff contended that the suit schedule A properties are the ancestral properties of the plaintiff and the first defendant. These lands comprise of coffee estate, paddy field and residential property. Initially the jama bandi (the revenue records) for the suit schedule A properties were made in his name. But, the first defendant, in collusion with the revenue officials, got his name entered in Column No.6 of the jama bandi for certain lands mentioned in the plaint schedule 'A'. However, the plaintiff is the kartha of the Hindu joint family and there has been no partition of the suit schedule 'A' properties. The movable properties described in the plaint schedule 'B' are also joint family properties.
4. The plaintiff next contended that he and the first defendant were at loggerheads for some time. In the year 1992, when the plaintiff was not in town, the first defendant clandestinely felled ten Silver wood trees in suit schedule 'A' lands and was trying to sell them to the timber merchants without the plaintiff’s consent. Therefore, the plaintiff commenced the suit in O.S.No.49/1992 for permanent injunction restraining the first defendant from transporting the felled timber and obtained an order of temporary injunction. However, the first defendant in violation of the orders of temporary injunction transported the timber.
5. The plaintiff also contends that during the pendency of the suit in O.S No.49/1992, he and his wife (the second defendant) tried to counsel the first defendant to take his share in the ancestral/Joint family and reside separately. The first defendant agreed to this initially, but at the instance of his wife, he went back on the assurance and started threatening the plaintiff and the second defendant with dire consequences. The plaintiff and the second defendant were also abused and they were compelled to convene a Panchayath to advise the first defendant. But, he threatened even the Panchayathdars. The first defendant started unlawfully appropriating to himself the income from the ancestral properties without even providing for food and shelter to the plaintiff and the second defendant.
6. The plaintiff further contends that he and the first defendant are entitled to equal shares in the suit schedule 'A' and 'B' properties. The plaintiff was willing to effect partition of the suit schedule 'A' and 'B' properties between himself and the first defendant, but the first defendant refused to allow the partition of the schedule properties demanding that all the properties will have to be transferred by the plaintiff in his favour. The plaintiff, because of the conduct of the first defendant, has executed a registered Will bequeathing all his right and interest in the schedule properties in favour of his three daughters, who have been looking after him and his wife. Therefore, the present suit for partition.
7. The first defendant, upon being served with the summons of the suit entered appearance, filed his Written Statement contesting the plaintiff's assertion. The first defendant asserted that the plaintiff, a spendthrift, exhausted 75% of the movable and immovable properties owned by the family, and the plaintiff neglected the second defendant as well as him. The plaintiff sold 12 acres of the ancestral properties in 1935, 35 acres in 1952 and another 3 acres in 1970, apart from selling 55 acres situated at Hadageri Village for a sum of Rs.22,000/- to clear the loans availed by him. In the year 1974, the Plaintiff handed over the suit schedule 'A' and 'B' properties under a partition reduced into writing subject to the condition that the first defendant should look after the plaintiff and the second defendant. He was also saddled with the liability of repaying a loan of Rs.50,000/– to one of the brothers-in-law, which he has cleared. He cleared the other loans also during 1975-1977 apart from making over timber worth Rs.75,000/- to his brother-in-law. The first defendant also met the expenses of the marriage of one of the sisters.
8. The first defendant has further asserted that he is in exclusive possession of schedule 'A' and 'B' properties in his own right and has developed the lands in Schedule 'A' by investing huge amounts. He has, since 1975, spent over Rs.15,00,000/- for the maintenance and improvement of the suit schedule ‘A’ properties. There was no ill will or misunderstanding amongst the family members until 1992, when the plaintiff, at the instance of his sons-in-law, started demanding huge amounts from the first defendant. Sri K.Subbaiah, one of the sons-in-law threatened to sue for partition when the first defendant refused to pay huge amounts. The plaintiff is not interested in partition or in claiming a share in the suit schedule properties. But, he has presented the suit only because he has executed the Will dated 3.12.1992 in favour of the daughters at the instance of the sons-in- law.
9. The second defendant filed her own separate Written Statement admitting the plaint assertions and seeking for partition of the suit schedule 'A' and 'B' properties between the plaintiff and the first defendant. The trial Court initially framed 11 Issues. However, after hearing both the plaintiff and the defendants on 6.12.1998, the trial Court has re-cast Issues framing five issues as hereunder:-
i. Whether the plaintiff proves that he is entitled for half share in the suit schedule properties.
ii. Whether the first defendant proves that he got the suit schedule property under a partition to his share as stated in the written statement.
iii. Whether the 2nd defendant proves that she is entitled for a share in the suit schedule properties.
iv. Whether the plaintiff is entitled for the relief sought for.
v. What order or decree?
10. The plaintiff examined himself as PW.1 and marked Jama Bandi Extract as Exhibit P.1. The first defendant, on the other hand, examined three witnesses, including himself as DW.1. The first defendant marked 26 exhibits including the different Pro-notes, letters, Jama Bandi Extracts, mutation copies, loan repayment receipts, certified copies of the sale deeds executed by the plaintiff and pleadings in O.S.No.49 of 1992.
11. The trial Court held Issue Nos.1, 3 and 4 against the plaintiff and defendant No.2, and held Issue No.2 in favour of the first defendant. The trial Court has examined the rival claims in the light of the settled law that amongst Hindus, oral partition is permissible and further, that oral partition could even be inferred by the intention of one of the coparceners to give up his right, title and interest in favour of the other coparcener. The trial Court has concluded that from certain circumstances borne out by the evidence on record, it can be reasonably inferred that the plaintiff had relinquished all his rights in the suit schedule 'A' and 'B' properties in favour of the first defendant. Therefore, the first defendant, on the scale of probabilities, is able to establish oral partition between himself and the plaintiff in the year 1974. Further, the first defendant is also able to establish that he has fulfilled the condition on which the plaintiff relinquished his rights in the suit schedule 'A' and 'B' properties.
12. The trial Court has concluded that the following circumstances probabilise the first defendant's case. Firstly, though the plaintiff filed suit in O.S.No.49/1992 for permanent injunction against the first defendant from cutting and selling the standing Silver wood timber in the suit schedule 'A' properties asserting that he was registered as the owner in the Jama Bandi, he did not prosecute the suit. As such, the suit was dismissed for non- prosecution. The first defendant in his Written Statement in O.S. No.49/1992 had made certain admissions, but the plaintiff in contending that the first defendant was looking after the suit schedule 'A' properties, rendered such admissions of the first defendant ineffective. Therefore, the plaintiff's case will have to be examined only on the basis of the evidence in this case.
13. Secondly, the plaintiff has admitted that he has transferred major portions of the ancestral properties inherited by him. The plaintiff has admitted to transferring ancestral properties in favour of Smt. Gangamma, and her sister, Smt. Parvathamma in the year 1958 as per sale deed dated 14.3.1958 (Exhibit P.25). Further, the plaintiff has also admitted that initially the ancestral properties measured 107 acres, and as of 1974, the ancestral properties measured only 20 acres. The fact that the plaintiff has admitted that he has transferred certain portions of the ancestral properties in favour of third parties, and the first defendant, who as a coparcener was entitled for a share in such transferred properties, did not challenge such transfer, are circumstances that probabilise that the plaintiff had in a partition relinquished his right, title and interest in the schedule 'A' and 'B' properties in the year 1974 in favour of the first defendant.
14. Thirdly, the first defendant's name was entered in column No.6 of the Jama Bandi of the suit schedule 'A' properties from the year 1975-76 as per MC No.37/76-77 dated 12.7.1996. The application for this mutation entry was submitted by the plaintiff himself, and the plaintiff had not challenged the mutation entries even as of the date of the suit. These circumstances also demonstrate that the plaintiff relinquished all his rights in the schedule 'A' and 'B' properties in an oral partition in favour of the first defendant.
15. Fourthly, the first defendant's case is that in the partition in the year 1974, the suit schedule properties were handed over to him subject to certain conditions viz., the liability to discharge the loans availed by the plaintiff as of that date, the responsibility to perform the marriage of the plaintiff's third daughter and to entirely manage the suit schedule properties. The Pro-notes (Exhibit D1 and D2) are proof of the loan availed by the plaintiff and outstanding as of the date of the said oral partition which is subsequently discharged by the plaintiff. The plaintiff himself has admitted that the third daughter's marriage was performed much after 1974, the year of partition, as asserted by the first defendant, with the first defendant shouldering the responsibility. Further, the other evidence on record viz., the certificates and the bank papers establish that the first defendant availed loans in his own right after the oral partition and discharged such loan. This evidence essentially establishes that the suit schedule 'A' and 'B' properties were allotted to the first defendant with the plaintiff relinquishing all his rights. As such, the first defendant was able to establish that post the partition, he was in possession and enjoyment of the suit schedule 'A' and 'B' properties as the absolute owners thereof.
16. The learned counsel for the plaintiff argued that the impugned judgment is perverse, contrary to the evidence on record and the settled propositions of law. The learned counsel contended that the trial Court should have examined whether the plaintiff, in asserting that the first defendant was managing the suit schedule 'A' and 'B' properties, was only adverting to an arrangement as regards possession of the suit schedule 'A' properties without admitting that the first defendant is in possession of the suit schedule properties as the absolute owner. The trial Court's judgment, without considering this crucial difference between an arrangement and partition, is contrary to the facts and circumstances of the case, and therefore perverse.
17. The learned counsel contended that the question whether members of a joint family held properties pursuant to a partition or under an arrangement as to possession would depend upon the intention of the parties which will have to be gathered from the totality of the facts and circumstances of each case. One of the contra circumstances against a partition, and in favour of an arrangement as to possession, is that the co-sharer's possession is in excess of his respective share. If the possession of a co-sharer is not in conformity with the respective share, generally the indication is that there is no partition and that the arrangement is only as regards possession subject to future partition. The learned counsel for the plaintiff relied upon the decision of this Court in Fakirappa Bailappa Kambar v. Kristappa Bailappa Kambar reported in ILR 1985 Kar.3062 in support of this proposition.
18. The learned counsel for the plaintiff next contended that the first defendant asserted in his Written Statement that the partition between himself and the plaintiff was in writing. But, in the evidence, the first defendant has deposed that the partition was oral. This diametrically different stand in the evidence totally belied the first defendant's case of a partition as against the plaintiff's case of a mere arrangement as to possession. The first defendant relied upon the entries in Jama Bandi of the suit schedule 'A' properties in support of his defence, but he did not dispute that the plaintiff's name continued in the proprietor's/owner's column. The first defendant's name was entered only in the cultivators column of Jama Bandi. The trial court has erred in overlooking these very material circumstances and in concluding that the first defendant was able to establish oral partition in his favour. If indeed there was an oral partition as contended by the first defendant, the entries in the Jama Bandi would have been on that basis with the first defendant's name also being entered in the proprietor/cultivator's column.
19. The learned counsel for the plaintiff next contended that the trial Court has extracted in extenso the plaintiff's statements in cross examination about sale of certain ancestral properties and concluded that such statements tantamount to admission of the first defendant's case. The trial Court could not have relied upon the plaintiff's statement in that regard because the sale of certain ancestral properties by the plaintiff was many years prior to the year of the alleged oral partition or relinquishment. Therefore, the sale of such ancestral properties was not relevant given the nature of the dispute. Insofar as the other statements by the plaintiff in the cross- examination, it could not have been construed as admission of either partition or relinquishment as asserted by the first defendant. The statements even otherwise conform to the plaintiff's case that because he was not able to look after the affairs of the suit schedule 'A' properties, the first defendant was looking after the suit schedule ‘A’ properties subject to the condition that the first defendant should discharge the outstanding loan, meet the expenses of the plaintiff's third daughter's marriage and look after the plaintiff and the second defendant. Therefore, the trial Court erred in treating these statements as admission of relinquishment as contended by the first defendant.
20. The learned counsel for the plaintiff also contended that the trial court should have seen that it is settled law that statements could be construed as admissions only if they are unequivocal and categorical, and the plaintiff's statements in evidence were not an unequivocal and categorical admission of relinquishment of the suit schedule A and B properties in favour of the first defendant. The learned counsel for the appellant-plaintiff relied upon the decision of the Hon'ble Supreme Court in Union of India vs. Ibrahim Uddin and another reported in (2012) 8 SCC page 148 and contended that the learned trial Court could not have based its judgment on the plaintiff's statement in the cross-examination.
21. The learned counsel for the appellant- plaintiff taking this Court through the evidence of the plaintiff (PW1) and the first defendant (DW1), as well as testimonies of DW2 and DW3 examined by the first defendant, contended that the first defendant is not able to establish partition as asserted by him. But, the plaintiff is able to establish that the first defendant was only managing the suit schedule 'A' properties without any partition. Therefore, the trial Court could not have concluded that the plaintiff relinquished all his right, title and interest in the suit schedule A and B properties in favour of the first defendant.
22. The learned counsel further emphasised that the trial Court failed to appreciate that it is settled law that relinquishment of right, title and interest in immovable properties could only be in writing and registered as provided for under the provisions of Section 17 of the Registration Act, 1908. But, the first defendant has not produced any document in writing to evidence such relinquishment, and in the absence of a registered deed evidencing the relinquishment, the trial Court could not have held that the plaintiff had relinquished all his right, title and interest in the suit schedule 'A' properties in favour of the first defendant. As such, the trial Court could not have concluded that the first defendant had established his defence. The learned counsel for the plaintiff-appellant relied upon the decision of this court in Malakappa vs. Annapurna and others reported in ILR 2010 Karnataka 2748, and the decision of the Hon'ble Supreme Court in Yellapu Uma Maheswari and another vs. Buddha Jagadeeswara Rao reported in (2015) 16 SCC 787.
23. Lastly, the learned counsel contended that the trial Court has erred in concluding that the plaintiff had filed the suit for partition without including all the ancestral properties because of certain statement by the plaintiff in the cross- examination that he had not alienated the ancestral properties in survey Nos.142, 143 and 206 of Hardoor village without considering the evidence of the first defendant himself, who was categorical that there were no ancestral properties except the suit schedule properties even as of 1974. In fact, the first defendant had neither pleaded that certain ancestral properties were retained by the plaintiff and kept out of the suit, nor placed any evidence in this regard.
24. The learned counsel for the first defendant, meeting the arguments of the learned counsel for the plaintiff, contended that one of the first principles in law is that a party who comes to the court must come with clean hands, and when a person's case is based on falsehood, the case must be summarily dismissed. Further, non-mentioning of the relinquishment/release at the trial tantamount to violation of this salutary principle and a fraud on Courts. The learned counsel relied upon the decision of the Hon'ble Supreme Court in S.P.Chengalvaraya Naidu (Dead) by LRs vs. Jaganath (Dead) by LRs., reported in AIR 1994 SC 853 in support of this proposition. The learned counsel contended that the plaintiff should be non-suited on this ground because he suppressed relinquishment of all his right, title and interest in the suit schedule ‘A’ properties, and in contending that he was entitled for a share, was playing a fraud on the Court. Therefore, the trial Court is justified in dismissing the suit.
25. The learned counsel for the first defendant canvassed that the trial Court in coming to the conclusion that the first defendant is able to establish his case of oral partition in the year 1974-75 has rightly weighed the evidence on record, especially the testimonies of the plaintiff and the first defendant. The trial court has properly appreciated the oral testimonies and has based its judgment on proper assessment of the probabilities. It is settled law that when there is conflicting oral evidence of the parties on any question in issue, and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial judge's notice or there is sufficient balance of improbability to displace his opinion, the appellate Court should not interfere with the finding of the trial Court on a question of fact. The assessment of evidence on record by the trial Court, when tested as against this touch stone, does not call for any interference in this appeal. In support of this proposition, the learned counsel relies upon the decision of the Hon'ble Supreme Court in Santosh Tiwari vs. Purushotham Tiwari (deceased) by LRs., in (2001)3 SCC page 179.
26. The learned counsel for the first defendant contended that it is trite that family arrangements/settlements amongst family members may be oral. The Courts will enforce oral arrangement if it is established that family arrangement/ settlements are bona fide arrangement/settlement to resolve family disputes by a fair and equitable division, and such arrangements/settlements are voluntary and not induced by fraud, or coercion or undue influence. In the present case, the evidence on record establishes the circumstances from which it could reasonably be concluded that the plaintiff and the first defendant entered into an oral family arrangement, and the first defendant acquired rights to the suit schedule 'A' properties under such a family arrangement. The circumstances which probabilise the bona fide family arrangement/settlement have been rightly considered and weighed by the trial Court. As such, the contentions by the learned counsel for the plaintiff that the trial court has erred in concluding that the evidence on record establish that the plaintiff had relinquished his rights in the suit schedule 'A' properties, is wholly misconceived. The learned counsel relies upon the decision of the Hon'ble Supreme Court in Kale and others vs. Deputy Director of Consolidation and others reported in AIR 1976 SC 807.
27. The learned counsel for the first defendant lastly submitted that the plaintiff was categorical in his cross-examination that the land in survey Nos.142, 143 and 206 of Hardoor Village, measuring 32 acres, were ancestral properties. He was in possession of these lands that have coffee plants, and that these lands were not included in the suit. The learned counsel relied upon decision of this Court in G M Mahendra vs G M Mohan reported in 2011 (4) KCCR 2461, and contended that it is settled law that inclusion of all the properties in a suit for partition was necessary, and if all the properties are not included in the suit for partition it would amount to a suit for partial partition. A suit for partial partition cannot be maintained without seeking leave of the Court as contemplated under the provisions of Order II Rule 2 of CPC. It is undisputed that the plaintiff has not sought for any leave as aforesaid, and therefore the trial Court is justified in dismissing the suit on the ground that the plaintiff had not included all the ancestral properties.
28. In the light of the rival contentions, the points that arise for consideration are as follows:
(i) Whether the trial Court is justified in accepting the first defendant's case that the plaintiff had relinquished his rights in the suit schedule 'A' and 'B' properties though the first defendant did not place on record a registered document in that regard.
(ii) If the trial Court is justified in considering whether a relinquishment could be established even without a registered document, whether the trial Court's conclusion that the plaintiff has relinquished his right, title and interest in the suit schedule 'A' and 'B' properties is based on proper appreciation of evidence on record.
(iii) Whether the finding by the trial court that the suit is liable to be dismissed on the ground that the suit is for partial partition because all the ancestral properties are not included, is justified in the facts and circumstances of the case.
(iii) If the trial Court’s conclusion that the plaintiff has relinquished all his right, title and interest in the suit schedule ‘A’ and ‘B’ properties is not based on proper appreciation of evidence on record, and if the trial Court’s conclusion that the suit is for partial partition is unjustified in the facts and circumstances of the case, whether any interference is called for.
29. The plaintiff has ex0amined himself as PW 1. In his Chief examination, he has stated that his relation with the first defendant was strained from only about 4-5 years prior to the date of the suit, and that the first defendant has been looking after the affairs of the suit schedule properties. The suit schedule properties are ancestral properties. The first defendant and he are entitled for equal shares in the suit schedule properties. He has executed a registered Will bequeathing his undivided share in the suit schedule properties in favour of his daughters. The plaintiff has been subjected to elaborate Cross Examination, and it is in his Cross Examination, he has stated that he inherited an extent of 52 acres, and initially, his uncle was looking after all the ancestral lands. He exchanged this extent of 52 acres for another extent of 52 acres with a certain Sri. Panya Basappa, and this exchange was in 1964. He has stated that he did not alienate any ancestral properties before this exchange. The suit schedule properties are also ancestral properties, and other than these lands, the lands in Sy.Nos.142, 143 and 206 are also ancestral properties. But, these lands are not included in the suit. Further, the plaintiff in his Cross- Examination has stated that in the year 1958, he has transferred an extent of 55 acres in favour of Smt.Gangamma and her sister, Smt.Parvathamma for a total sale consideration of Rs.25,000/-
30. The plaintiff, insofar as the loans availed/discharged by the first defendant, has admitted that the first defendant was availing loans as against some of the suit schedule properties from the year 1985 and the first defendant has discharged these loans as well as some of the loans availed by him. He has also admitted that in the year 1974, in the presence of his brothers-in-law, the first defendant was asked to look after the suit schedule properties, but subject to the condition that the first defendant should look after both him and his wife. However, he is categorical in stating that there was no discussion about the quantum of money that the first defendant had to pay him and his wife. The plaintiff has stated that his wife and he were compelled to walkout of the ancestral home and take shelter with daughters because of the first defendant’s conduct. He wants to reside in his village, Shuntikoppa, but there is no separate accommodation, and he has no resources to even defray medical expenses. The response of the plaintiff in the Cross examination, who was aged about 75 years as of the date of his Cross examination, is not consistent. He is not consistent in responding to the suggestions that he had transferred all lands in the total extent of 107 acres of ancestral properties except the suit schedule properties, or that the suit schedule properties were allotted to the first defendant, or that the first defendant had developed the suit schedule properties in the decade prior to the date of cross- examination.
31. The first defendant has examined himself as DW1. He has stated that the family owned 150 acres of lands in Haradur village, and the plaintiff was managing such 150 acres of land. The plaintiff has transferred an extent about 58 acres in favour of Sri.M.V. Belliappa, and another extent of 55 acres in favour of the sisters of Sri.Siddappa, a resident of Somwarpet. Later, the plaintiff has transferred the other extents retaining an extent of 26 acres. At the time of his wedding, the suit schedule properties were made over to him absolutely subject to the condition that he should look after his parents. This was as an oral arrangement and made before the family deity. This arrangement is so made because the family wanted these issues settled before his wife was welcomed. He has complied with the conditions inasmuch as he has performed the marriage of one of his sisters and he has repaid loans availed by the plaintiff. The revenue records for the suit schedule properties are made in his name because of this arrangement, and on the application made by the plaintiff. He has also spoken about the strained relationship between the plaintiff and his elder son-in- law because he was not helpful when his mother was unwell and hospitalized. The plaintiff was constrained to make arrangement for him (the first defendant) to reside with Sri. Mahanthaiah. The first defendant refers to Ex. D3, a letter written by the plaintiff in the year 1970. He concludes that if his parents were to live happily with him, he would look after them well.
32. In the cross-examination, the first defendant states that he does not know whether the plaintiff was in possession of any ancestral property as of the date of his cross-examination, but in the later part of the Cross-examination in answer to a specific question whether there was any ancestral property other than the suit schedule properties as of the time of date of the suit, the first defendant is categorical that there was no other ancestral property except the suit schedule properties. As regards, the entries in his favour for the suit schedule properties in Column No.
6 of the respective Jama Bandi, he has stated that these entries were made on an application submitted by the first defendant, and he did not submit any application with any authority representing that there was a division between himself and the plaintiff and that he had got the suit schedule properties in such partition. Further, the first defendant has stated that he did not inform the plaintiff about his name being entered in column No.6, nor made any effort to secure a copy of the application submitted by the plaintiff requesting the authorities to enter the name of the defendant No.1 in column No.6 of Jama Bandi. Furthermore, the first defendant admits that the plaintiff had initiated proceedings against their relative, a certain Sri S.B. Shankar, but after a mutual settlement, the property was made over to Sri S.B. Shankar both by him and the plaintiff.
33. The first defendant has also examined Sri.B.N.Poovaiah and Sri Gangadhara as DW.2 and DW.3. These witnesses are his neighbors. These witnesses have stated that the defendant No.1 was in possession of the suit schedule properties in his own right, pursuant to a partition between the first defendant and the plaintiff, and at the time of partition, it was agreed that the first defendant, in consideration of the suit schedule properties being allotted to him, he should pay maintenance to the plaintiff and his wife. However, these witnesses have admitted that they are friends of the first defendant, and that they are not able to specify the date of the partition. Further they say that only they were present at the time of partition between the plaintiff and the first defendant.
34. It is admitted that the suit schedule 'A' and 'B' properties are ancestral properties, and that only the plaintiff and the first defendant, as coparceners, would be entitled for shares in the suit schedule 'A' and 'B' properties. It is settled law that in a suit for partition, the initial burden of establishing that the subject properties are joint family properties/ancestral properties is on the plaintiff, and the plaintiff must discharge this burden by placing cogent and credible evidence; once the plaintiff discharges this burden, the burden of establishing the defence of either prior partition or the properties being absolute properties or self acquired properties would be on the person who takes such defence. While there is no dispute that the suit schedule ‘A’ and ‘B’ properties are ancestral properties, the first defendant has contended that the suit schedule properties, and another 130 acres were ancestral properties. But, the plaintiff, because of his wayward ways, has transferred about 130 acres, and in a 'partition' in writing in the year 1974-75, the plaintiff 'handed over' the suit schedule A properties to him. It is observed that the first defendant has not persisted in evidence with his plea that the 'partition' was in writing. As such, the burden of establishing partition would be on the first defendant, and in the light of the defence, unless the first defendant is able to justify in law that there could be relinquishment in an oral partition and also establish that the plaintiff has indeed relinquished all his right, title and interest in the suit schedule 'A' and 'B' properties, the plaintiff would be entitled for share in these properties.
35. The Hon'ble Supreme Court in Kale and others vs. Deputy Director of Consolidation and others supra, while considering the question whether family members could settle respective rights in immovable properties in an oral settlement/arrangement, has concluded that the family arrangements may also be oral. But, the oral arrangement/settlement must be voluntary and cannot be induced by fraud or coercion or undue influence. Further, the arrangement/ settlement must be bona fide and intended to resolve family disputes with rival claims being settled in a fair and equitable manner, and the members to such family settlement/arrangement must have some antecedent title or claim or interest, even a possible claim, in the properties in respect of which rights are settled. If these conditions are established, the courts would lean in favour of not disturbing the family settlement. Further, insofar as one of the parties to such family arrangement taking all the properties to the exclusion of the others, the Hon'ble Supreme Court has concluded thus:
“But, in our opinion the principal can be carried further and so strongly do the courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid in anticipation, future disputes which might ruin them all, and we have no hesitation in taking the next step (fraud apart) and upholding an agreement under which one set of members abandon all claim to all title and interest in all the properties in dispute and acknowledge that the sole and absolute title to all the properties reside in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present.”
This declaration of law has stood the test of time, and therefore, the contention of the learned counsel for the plaintiff that the trial Court not have embarked upon an enquiry on whether the plaintiff had relinquished his rights to the schedule 'A' and 'B' properties without a registered relinquishment deed, is not well founded.
36. The ratio in the decision of the Hon'ble Supreme Court in Yellapu Uma Maheswari and another vs. Buddha Jagadeeshwara Rao and others supra would not apply to the facts and circumstances of the present case inasmuch as in the case before the Hon'ble Supreme Court, the parties were at dispute about admissibility of a memorandum allegedly executed by them on the ground that such memorandum/s were not records of past partition.
However, in the present case, the first defendant does not rely upon any memorandum, or agreement in writing, and in fact, the first defendant relies upon a purported oral arrangement and certain circumstances to substantiate his case. Therefore, the trial Court is justified in examining the question whether the plaintiff had relinquished his rights, title and interest in the suit schedule 'A' and 'B' properties in an oral partition.
37. The trial Court cannot also be found fault with employing the phrase 'relinquishment' because, it was examining whether the plaintiff had relinquished his rights to the suit schedule A and B Properties under an oral arrangement, which, in the light of the decision of the Hon'ble Supreme Court in Kale and others supra is permissible in law. As such, the trial Court has rightly commenced its appreciation of the relative merits of the respective cases from the standpoint of whether the plaintiff had relinquished his rights, title and interest in the suit schedule A and B properties in favour of the first defendant under an oral arrangement. The first point for determination is answered accordingly.
38. The plaintiff contends that from about 4 – 5 years prior to 1995, the first defendant is looking after the affairs of the suit schedule 'A' properties; in contradiction, the first defendant contends that in a family arrangement in the year 1974, the plaintiff relinquished his rights in the suit schedule 'A' and 'B' properties in his favour. The trial Court has come to the conclusion that the first defendant is successful in establishing that the plaintiff had, under an oral family arrangement, relinquished his right, title and interest in the suit schedule A and B properties considering certain statements by the plaintiff in his cross- examination.
39. The first of the circumstances relied upon by the trial Court is that the plaintiff has admitted to inheriting more than 100 acres and transferring substantial portions of this extent in favour of third parties. The first defendant, being a coparcener and entitled to dispute those transfers, had not challenged those transfers. The trial Court has concluded that these circumstances probabilise that the plaintiff might have agreed to relinquish his right, title and interest in the suit schedule 'A' and 'B' properties in favour of the first defendant.
40. The trial Court has also relied upon the statements by the plaintiff that the revenue entries insofar as column No.6 in the Jama Bandi for the suit schedule A properties stood in the name of the first defendant and that these entries were made way back in the 1976-77. But, the plaintiff has not called in question these revenue entries. Further, the trial Court has relied upon the plaintiff's statement in cross- examination that the first defendant was managing the affairs of the suit schedule 'A' properties and had obtained loans from different Co-operative societies/banks on the basis of the revenue entries in his favour. The trial Court has opined that the plaintiff's statements in cross examination in these regards establish the relinquishment of the suit schedule A Properties in favour of the first defendant. Furthermore, the trial Court has concluded that the first defendant, with the production of Exhibit D1 and D2 (Pro-notes executed by the plaintiff in the year 1970-71) and the other exhibits viz., the Certificates issued by the Banks/societies, is able to establish that the first defendant had discharged the conditions upon which the plaintiff had relinquished his right, title and interest in the suit schedule - A and B properties in favour of the first defendant.
41. However, the circumstances and the plaintiff's statement considered by the trial Court will have to be read in juxtaposition with the other evidence, including the pleadings in the earlier suit in O.S.No.49 of 1992 to decide, on the scale of preponderance of probabilities, whether the relinquishment by the plaintiff is established. It should also be examined whether the plaintiff's statements in cross-examination are categorical and unequivocal to be construed as admission of the first defendant’s case.
42. The trial Court has discarded the evidentiary value of the pleadings in the earlier suit in O.S. No.49 of 1992 between the plaintiff and the first defendant on the ground that the plaintiff did not continue with the trial in the said suit. Further, the trial Court has concluded that the first defendant in such suit had admitted that the plaintiff was the registered owner of the subject property. But the plaintiff in pleading in the present suit that the first defendant is managing the suit schedule properties, has waived the advantage that the plaintiff could have taken of such admission in O.S.No.49/1992. Therefore, the pleadings in O.S No.42/1992 would not be significant. However, if the pleadings in a prior suit would be material for a decision on the present controversy, and undisputedly the import of such pleadings cannot be kept out of consideration only on the ground that the suit is dismissed for non- prosecution.
43. The plaintiff, in consonance with his case in the present suit, contended in O.S. No.42/1992 that the suit schedule 'A' property was ancestral property and he was registered as the owner of this property in the Jama Bandi, and the first defendant, in denial of his rights, was felling Silver wood timber in the suit schedule 'A' property. The first defendant, who filed common Written Statement along with the other defendants in this prior suit in O.S.No.47/1992, while denying that any attempt was made either to fell or sell timber, did not assert that the plaintiff had relinquished all his right, title and interest in the schedule ‘A’ and ‘B’ properties, nor admitted the plaintiff’s case as observed by the trial Court. The first defendant in a very cryptic manner denied the plaintiff's assertion. But, significantly, if indeed there was a family arrangement and relinquishment as asserted by the defendant No.1, the first defendant would have definitely taken up such contention in this regard. This would be material in examining the evidence on record while deciding whether the first defendant is able to establish oral arrangement/settlement and relinquishment by the plaintiff as asserted by him.
44. There cannot be any quarrel with the proposition that admission made by a party to the proceedings must be categorical and unequivocal, and when the admissions are categorical and unequivocal, they would be decisive unless it is shown to be erroneous. Further, an opportunity must be extended to the party who makes the admissions in cross- examination to tender his explanation or clarify the point. A useful reference could be made in this regard to the decision of the Hon'ble Supreme Court in Union of India vs. Ibrahim Uddin and others supra. Therefore, the plaintiff's statements in cross-examination, before being taken as admissions, should have been examined by the trial Court with greater care because the plaintiff was tendering his evidence at the age of 76 years, and the trial Court should have tested those statements against the touchstone of the admissions having to be categorical and unequivocal.
45. The plaintiff is consistent in his stand that the relationship between himself and the first defendant is strained for about 5 years preceding the date of the suit inasmuch as he states that he was residing with the first defendant even as of 1993 and that the first defendant started neglecting him and the second defendant after he took over the entire management of the suit schedule 'A' properties. However, the plaintiff has accepted the suggestions that the first defendant transported timber from the suit schedule 'A' properties in the years 1970 when his elder daughter was constructing a residential premises in Bangalore and the first defendant has availed loans and discharged the same as per the different exhibits much prior to the year 1993. The plaintiff's statements either in these regards or the first defendant managing the affairs of the suit schedule properties, in view of his consistent assertion about the estrangement from the first defendant from the year 1993 and other evidence on record as will be discussed later, cannot be construed as an unequivocal admission of a family arrangement under which he relinquished his rights in the schedule 'A' properties to the first defendant.
46. The plaintiff does not dispute that the first defendant was looking after the affairs of the suit schedule 'A' properties, nor does he dispute that the first defendant did discharge the loans and also shouldered certain responsibilities. Before these statements in the cross- examination are accepted as proof of relinquishment in an oral arrangement, it will have to be examined in the light of the evidence that the first defendant did not continue his education after 10th standard, and he was assisting his father, the plaintiff, in looking after the suit schedule 'A' properties even from the year 1970-71. As such, in the considered opinion of this court, while deciding whether the first defendant is able to establish the relinquishment by the plaintiff, no greater significance could be attached to the statements by the plaintiff as regards the first defendant discharging the loans availed or transporting timber to Bangalore at the time the elder daughter was constructing a residential premises or the first defendant shouldering responsibilities at the time of the third daughter's wedding. The plaintiff's statement, when examined in these circumstances, cannot be construed as unequivocal or categorical admission of partition.
47. It is trite that he who pleads prior partition must establish such fact. Therefore, the onus of establishing the family arrangement/partition and allotment of the suit schedule 'A' and 'B' properties in favour of the first defendant would be on the first defendant. The trial Court has erred in not considering the evidence by the first defendant from this perspective. The first defendant has examined himself as DW1, and examined two persons, who according to him were witnesses to the oral partition, as DW2 and DW3. It is from this evidence, and the documentary evidence, that the first defendant must not only establish the fact of partition/family arrangement but must also establish that such partition/family arrangement was bona fide and intended to mutually settle the respective claims.
48. The first defendant's case is based on multiple strands of assertions like, sale of a major portion of the ancestral properties by the plaintiff because of his vices, relinquishment of rights in the suit schedule 'A' properties by the plaintiff and the first defendant dealing with the suit schedule properties as the absolute owner. However, it is obvious from the reading of the evidence that the first defendant has not placed any material on record to establish that the plaintiff held 150 acres of ancestral properties and that the plaintiff had transferred all these properties except an extent of 20 acres described in the plaint as schedule A properties. It was incumbent upon the first defendant, who has premised his case in this assertion, to place on record necessary evidence to establish that the plaintiff indeed inherited 150 acres and that the plaintiff had transferred all the properties except the suit schedule 'A' properties. The first defendant has relied only upon certified copy of the Sale Deed executed in the year 1942 and 1958 - Exhibit-D25 and 26. But, the sale deed - Exhibit-D26 is executed by the plaintiff and his paternal uncle's wife. The fact that this sale deed is executed jointly by the plaintiff and his paternal aunt, does not render itself to an easy inference that the said properties were sold by the plaintiff to meet his wayward ways. Insofar as the sale under the sale deed executed in the year 1958, as per Exhibit D-25, the plaintiff has stated that the sale deed was executed when he was constructing the residential premises in one of the suit schedule 'A' properties. This is not contested by the first defendant. The plaintiff has admitted the sale under these deeds, but from these deeds, it cannot be concluded that the plaintiff had transferred 130 acres of ancestral properties. Therefore, neither this evidence nor the ocular testimony of the first defendant would suffice to conclude that more than 130 acres of ancestral properties were sold by the plaintiff for his wayward ways.
49. The first defendant to succeed in his defence should not only establish the factum of partition but must also establish that the partition was bona fide and for settlement of the family dispute. The first defendant in support of the factum of arrangement as asserted by him, has stated in his evidence that the arrangement was immediately before his marriage and that when the arrangement was agreed upon, all the family members, including his brothers-in-law, were present but they did not witness the discussions. However, the first defendant is unable to give the date of the alleged family arrangement. This leaves a huge hole in the first defendant's case. Insofar as why the brothers-in-law were not witnesses to the arrangement, the first defendant, without furnishing any details, has only stated that one of them could not walk and therefore, though they were present at the time of the arrangement, they did not come inside the house when the arrangement was made. The fact that the first defendant is evasive in material aspects, coupled with the fact that the first defendant in his written statement contended that the arrangement was in writing but later changed tack to contend that the arrangement was oral, renders the plaintiff's case difficult to accept.
50. According to the first defendant, the neighbours, DW1 and DW2, were the only witnesses to the oral arrangement/partition. These witnesses have stated that as of the date of the oral partition/arrangement in the year 1974-75, they had completed their graduation and they have been good friends of the plaintiff. The evidence on record is that the plaintiff had close ties with his wife's family members, and in fact, both the plaintiff and the first defendant concur that the first defendant grew up with the plaintiff's nephew and the plaintiff was corresponding with him by letters. One of the letters addressed by the plaintiff to his nephew is marked as Exhibit D-3, and the contents of this correspondence are that the plaintiff spoke about his financial difficulties, hope for the future and also about relationships. This evidence, and the fact that the plaintiff has three daughters, and two of whom were married, bespeak of an extended family, and therefore it is difficult to believe that the arrangement would be witnessed only by the first defendant’s young friends and not by the other members of the family. The evidence of DW1 as well as the other two witnesses, when read in this light, seem very contrived.
51. Furthermore, the first defendant is not able to explain why the plaintiff's name continues in column No.3 of Jama Bandi if there was relinquishment as contended by him. The plaintiff is categorical that his name continued in Column No.3 of Jama Bandi (Ex.P1) because he had not relinquished his interest in the suit schedule 'A' and 'B' properties and that the first defendant had managed to get his name entered in the Jama Bandi for the suit schedule 'A' properties in Column No.6, without his consent.
52. The trial Court has not considered the aforesaid circumstances while assessing the evidence and in arriving at its conclusion that the suit schedule A and B properties were relinquished by the plaintiff in favour of the first defendant. The trial Court has braced its judgment with certain presumptions. The trial Court has concluded that the plaintiff must have relinquished his rights in the suit schedule A and B properties because of the plaintiff's love and affection for the first defendant who had not impugned the transfers of the ancestral properties by him, but this reasoning is presumptive. The conclusion is presumptive because it is not part of the first defendant's pleadings, nor his evidence. The trial Court has based its judgment on presumption and the plaintiff's statement in cross- examination (though they are not unequivocal and categorical statements) without considering that the first defendant had failed to prove his case by cogent evidence. As such, this Court is of the considered opinion that the trial Court's appraisal of the evidence suffers from material irregularity. Therefore, interference by this Court would be justified. Further, in the light of the above discussions, it is held that the first defendant has not established the oral partition or the relinquishment of interest by the plaintiff in the suit schedule 'A' and 'B' properties. Therefore, the second point for consideration is answered accordingly.
53. The trial Court has non-suited the plaintiff on the ground that all the ancestral properties have not been included in the suit. The trial Court's conclusion in this regard is based on the statements made by the plaintiff in the cross-examination. Indeed it is trite, as held by this Court in G M Mahendra vs. G M Mohan supra that a suit for partition without including all the ancestral properties cannot be sustained without the leave of the court under Order II Rule 2 of CPC. However, the statement of the plaintiff in the cross-examination that he has retained possession of the land in survey Nos.142, 143 and 206 of Haradoor, measuring 32 acres, will have to be examined, as afore discussed, in the context that the plaintiff was aged 76 years at the time his deposition, and even according to the first defendant, as of the year 1974, the suit schedule A properties were the only ancestral properties available. The first defendant does not even plead that the suit was for partial partition.
54. Further, the first defendant is categorical in his cross-examination that as on the date of the suit, the suit schedule 'A' properties were the only ancestral properties. The first defendant has repeatedly stated that the suit schedule 'A' properties were the only ancestral properties as of the date of the suit. If the defendant himself does not plead, and states categorically that as on the date of suit the family did not have ancestral properties other than the suit schedule A properties, merely because the plaintiff, aged 76 years, states that he has retained possession of these lands cannot be a reason to conclude that the plaintiff has instituted the suit keeping out certain ancestral properties. Furthermore, one of the properties which is purportedly kept out of the suit, the land in survey No.143, is in fact one of the suit schedule A properties. The trial Court has not examined these circumstances and therefore, it will have to be concluded that the trial court has erred in holding that the suit by the plaintiff is not maintainable because all the ancestral properties have not been included. The third point for consideration is answered accordingly.
55. For the foregoing reasons, it has concluded that the plaintiff is able to establish that he was entitled for a share in the suit schedule 'A' and 'B' properties along with the first defendant, while the first defendant is unable to establish his defence of oral arrangement in which the plaintiff relinquished all his rights in the suit schedule 'A' and 'B' properties in favour of the first defendant. The plaintiff has stated in his pleading and chief examination that he has executed a Will bequeathing his shares in favour of his daughters, who have continued the appeal after the demise of the appellant-plaintiff. If, there is no dispute about the execution of the Will, and the present appellants being beneficiaries under such Will, as is obvious that the parties are not at lis on this point, the appellants would be entitled to the plaintiff's share in the suit schedule 'A' and 'B' properties as the beneficiaries. But, in the facts and circumstances of this case discussed in detail above, the appellants shall not be entitled for mesne profits. As such the following:
ORDER The appeal is allowed. The judgment and decree dated 3.8.2000 passed in O.S.No.35/1995 on the file of the Civil Judge (Senior Division), Madikeri is set aside. The suit is decreed declaring that the plaintiff would be entitled for a half share in the suit schedule A and B properties by metes and bounds with the first defendant being entitled to the other half share in the suit schedule ‘A’ and ‘B’ properties. Preliminary decree to be drawn accordingly.
In view of disposal of the appeal, IA No. 1/2019 does not survive for consideration and the same is disposed of.
Sd/- Sd/-
JUDGE JUDGE nv* ct:sr