R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.354/2009 BETWEEN:
1.PALLAVI W/O PRADEEP T L AGED ABOUT 32 YEARS THALIHALLA, JAKKANAHALLI P.O. ILEHOLE VILLAGE CHICKMAGLUR TQ, CHIKMAGLUR DISTRICT.
2.PRUTHVI AGED ABOUT 31 YEARS 3.SRI ASHWATH AGED ABOUT 30 YEARS 4.SRI AJITH AGED ABOUT 26 YEARS 5.SRI ABHIMAN AGED ABOUT 26 YEARS 6.SMT. BHAVANI W/O LATE SRI K R BASEGOWDA AGED ABOUT 54 YEARS APPELLANTS No.1 TO 5 ARE CHILDREN OF LATE SRI K R BASEGOWDA AND APPELLANT No.2 TO 6 RESIDING AT 1ST CROSS J.M.ROAD, MUDIGERE CHIKAMAGALUR DISTRICT.
…APPELLANTS (BY SRI B H SHAMANNA & A S GIRISH, ADVOCATES FOR A-1 TO A-5, SRI SUHAS P, FOR SRI RAVI AND RAVI, ADVOCATES FOR A-6) AND:
1.K R ANNEGOWDA SINCE DEAD BY HIS L.Rs:
1(a) K A SHEKAR AGED ABOUT 56 YEARS 1(b) K A SATHISH AGED ABOUT 48 YEARS 1(c) K A SHAILA W/O V K KARIGOWDA AGED ABOUT 53 YEARS 1(a) and (b) SONS AND (c) DAUGHTER OF LATE SRI K R ANNEGOWDA ALL ARE RESIDING AT BETTAGERE VILLAGE AND POST MUDIGERE TALUK BANAKAL HOBLI CHICKMAGLUR DISTRICT.
...RESPONDENTS (BY SMT.DEEPIKA JOSHI, ADVOCATE FOR SRI H V RAMACHANDRA RAO, ADVOCATE FOR R1(a) SRI DEVIPRASAD SHETTY, ADVOCATE FOR R1(b) R1(c) SERVED) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED:16.12.2008, PASSED IN R.A.No.16/2003 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, CHIKMAGLUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:10.6.2003 PASSED IN OS.No.175/1997 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), CHIKMAGALUR.
THIS RSA COMING ON FOR FINAL DISPOSAL THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the judgment and decree passed by the learned Principal District Judge, Chikmagalur, in R.A.No.16/2003 on 16-12-2008.
2. The said Regular Appeal was preferred by the defendants in OS No.175/1997 as the suit filed by the plaintiffs came to be decreed by the learned trial Judge on 10-06-2003 holding that plaintiffs are entitled for equal half share in all the suit schedule properties.
3. The learned Principal District Judge, Chikmagalur, allowed the appeal preferred by the defendants and consequently, dismissed the suit filed by the plaintiffs seeking partition. Being aggrieved by the judgment and decree passed by the learned First Appellate Judge, plaintiffs pray for setting aside the judgment and decree passed in RA No.16/2003 in this regular second appeal.
4. In order to avoid confusion and overlapping, the parties are referred with reference to their status and rankings before the trial Court.
5. The facts of the case are: one K.R. Rudregowda is stated to be the common ancestor of the plaintiffs and defendant. He had two sons viz., K.R.Annegowda/1st defendant and K.R.Basegowda. Out of them, K.R.Basegowda was dead and represented by plaintiffs, as plaintiffs 1 to 5 are children and plaintiff No.6-D.R. Bhavani is the wife of K.R.Basegowda. The claim of the plaintiffs is partition simplicitor and they claim that schedule properties mentioned in the plaint are the ancestral and joint family properties of the family of K.R.Rudregowda and they also consisted of the properties purchased by K.R.Rudregowda during his life time. Plaintiffs claim that they are in joint possession and enjoyment of the properties and they are entitled for equal half share. The defendant stated therein is one K.R.Annegowda, who is none other than the brother of K.R.Basegowda. Of course, during the proceedings, he is reported to be dead and his legal representatives have come on record.
6. The substance of the defence by K.R.Annegowda is that, except relationship, he denies the entitlement of plaintiffs to seek partition of the properties on the very ground that joint family did not existed and was disrupted long back and on 28.01.1980 the plaintiff No.6-D.R. Bhavani along with her husband K.R.Basegowda executed a deed wherein K.R.Basegowda received Rs.30,000/- in lieu of his share in the schedule properties and also agreed to execute the registered deed. It is further stated that the oral partition was succeeded by document dated 28-01-1980 and suit for partition is not maintainable.
7. The trial Court was accommodated by the pleadings of the parties, oral evidence of PW1-Bhavani, and DW1-Annegowda and DW2-K.S. Puttegowda and documentary evidence of Ex.P1 to P33 and Exs.D1 to D10. With this learned trial Judge found that the plaintiffs had a case for partition and decreed the suit as prayed for. Against which, the defendants preferred appeal in RA No.16/2003 before the Principal District Judge and the same was allowed and judgment and preliminary decree dated 10-06-2003 passed by the trial Judge in OS No.175/1997 was set aside. The same is challenged in this appeal by the plaintiffs.
8. While admitting the appeal, this Court has framed the following substantial questions of law on 15.11.2010:
1. Whether the lower appellate court was justified in holding that Exhibit-D1 which was a release deed in respect of the undivided share of the plaintiffs, would not require registration as there is extinguishment and assignment of a right in respect of the property under the document which required registration under Section 17 of the Registration Act, 1908?
2. Whether the lower appellate court was justified in overlooking that the executant of Exhibit-D1 could not have released the interest of the minor children, which was also sought to be done under the same?
3. Whether a release deed can be executed in respects of an undivided share of a coparcener, when the only disposition that the Hindu Succession Act, contemplates, is under Section 30, which speaks about a testamentary disposition?”
9. After hearing, I have reframed the substantial questions of law as under:
(i) Whether Ex.D1 dated 28.01.1980 closed the doors for further partition of the joint family properties that was originally headed by K.R.Rudregowda?
(ii) In case of non existence of Ex.D1, whether the plaintiffs are entitled for their share (by virtue of the denial of execution ).
(iii) Whether Ex.D1 is out and out an absolute partition deed?
10. Learned counsel for plaintiffs would submit that the entire family of K.R.Basegwoda was deprived of their legal and legitimate share and that the rights of the plaintiffs were discussed at full length and that the judgment and decree passed by the learned trial Judge consists of sound reasoning and based on provision of law. He would further submit that first Appellate Judge placed unnecessary reliance on Ex.D1 and came to the conclusion that the partition of the schedule properties under the circumstances were not permissible as the joint family was already disrupted and it is evidenced by the document Ex.D1 and plaintiff No.6 -D.R. Bhavani, wife of K.R.Basegwoda has admitted her and that of her husband’s signature on Ex.D1. Learned counsel would further submit that a fabricated document was relied upon by the defendant in support of his contention regarding the completion of partition.
11. Learned counsel Smt.Deepika Joshi, for Sri.
H.V.Ramachandra Rao for R1(a) would submit that partition of the joint family when once completed it seals the further occasioning of the partition. The relationship among the parties is admitted. However, the process of partition was completed. The learned counsel would further submit that Ex.D1 speaks loud and clear about the completion of partition on 28.01.1980 and the coparcener who got out of the joint family is none other than K.R.Basegowda. Incidentally, plaintiff No.6- D.R. Bhavani is also a party to it and she has also signed. Learned counsel would further submit that suit for partition is after thought and it is filed in orders to deprive the properties which exclusively belonged to the defendant K.R. Annegowda and to his legal representatives who are on record by virtue of death of K.R. Annegowda.
12. Insofar as the joint family is concerned, joint family or joint family properties till 1980 is not disputed, as Ex.D1 which is named as ‘agreement for partition’ is dated 28.01.1980 and the same is addressed to K.R.Rudregowda and K.R.Annegowda, father and son and executed by K.R.Basegowda. However, wife of K.R.Basegowda, D.R.Bhavani also is said to have signed the same. Regard being had to the fact that there are two witnesses and a scribe to it.
13. The very wordings if are taken into consideration as available in Ex.D1, it is clear that defendant-K.R. Annegowda is the person who relied on the same and that he places reliance and admits the contents therein, as a result, the existence of joint family, recognition of undivided share of K.R.Basegowda at Rs.30,000/- was made and it was given to him.
Regard being had to the fact that the plaintiffs deny it. Further, plaintiff No.6- D.R. Bhavani, who is examined as PW1, in cross examination admits her signature and also that of her husband on Ex.D1. But she denies the partition or agreement for partition being entered into.
14. The concept of ‘Partition’ may be either ‘full’ or ‘partial’. It becomes ‘partial partition’ when only some of the properties are partitioned by the parties themselves or one or some of the members of the joint family gets separated and the joint family continued. Thus the ‘partial partition’ may be with reference to the properties or the persons. However, Rules of partition regarding impleading of all the properties and all the parties would be necessary when it is claimed before the Court of Law.
15. The plaintiff No.6-D.R. Bhavani, asserts in her evidence regarding the entitlement for partition and claims that the age of the youngest son of K.R.Basegowda and D.R.Bhavani as on the date of filing of the suit is stated to be 14 years. Thus, the children were minors as on the date of presentation of the plaint.
16. Another contention of the defendant is that K.R.Basegowda was doing Timber business and also purchased the property and received an amount of Rs.30,000/- for improving the business and terminating of the relationship with the family. Now the agreement dated 28.01.1980 is styled as “Agreement (Kararu Patra)”. According to its contents, the panchayatdars earlier decided to give an amount of Rs.30,000/- to K.R.Basegowda in consideration of his undivided right over the joint family properties. He relinquished his rights over the properties. Regard being had to the fact that the document is titled as “Agreement” and it is addressed to K.R.Rudregowda and K.R. Annegowda. Regard being had to the fact that K.R.Rudregowda or Annegowda are not the signatories to Ex.D1. Now the moot question would be, “whether the agreement dated 28.01.1980 marked the full and final partition of the joint family properties of K.R.Rudregowda, common ancestor?
17. It is necessary to mention that context and intention of the parties along with the surrounding circumstances are looked into while examining the document. In this connection, there are two angles to the document. One is, document is the result of fabrication and the signatures of the 6th Plaintiff and K.R.Basegowda was obtained on blank papers. In the cross examination, plaintiff No.6, wife of K.R.Basegowda admit the signature, but denies about the nature of the document. Now the effect has to be examined from two angles. Firstly, whether it is a forged or fabricated document and secondly, whether the document was entered into by the parties.
18. Further, it is to be noted regarding ‘practice of partition’ which is recognized in rural side is that, partition is also effected by way of ‘panchayat palupatti’ as recognized in Panchayat, wherein the parties by themselves come to a consensus and the properties were allotted may be in the presence of Panchayatdars and the consent would be given to the Revenue Authorities to effect the change of katha and mutation in accordance to it. The present document, basically, it is mentioned as “Kararu Patra or agreement” and date of execution is ‘28.01.1980’. It also contains the statement that partition was already effected by Panchayatdars and K.R.Basegowda received a sum of Rs.30,000/- and relinquished all and every undivided title, right and interest and possession over the schedule properties. Further the said partition agreement is not a one recording the earlier partition.
19. Plaintiffs have produced Exs.P1 to P-14 which are the RTC extracts for the years 1996-1997 in respect of the suit schedule properties.
Ex.P1 is in respect of land in Survey No.230/1 measuring 33 guntas situated at Koluru Village, Banakallu Hobli, Mudigere Taluk. At Col.No.9, it is mentioned as K.R.Annegowda s/o K.R.Rudregowda. At Col.No.10, MR No. is mentioned as MR No.28/94-95 and it is mentioned as “Pavathi” means “succession by virtue of death”(intestate succession).
Ex.P2 is in respect of land in Survey No.228/2 measuring 2 acres 29 guntas, situated at Koluru Village, Banakallu Hobli, Mudigere Taluk. At Col.No.9, it is mentioned as ‘K.R.Annegowda s/o K.R.Rudregowda’. At Col.No.10, it is mentioned as through LRF and MR number is mentioned as MR No.28/94-95 and here also it is mentioned as “Pavathi”.
Ex.P3 is in respect of land in Survey No.219 measuring 01 acres 10 guntas, situated at Koluru Village, Banakallu Hobli, Mudigere Taluk. At Col.No.9, it is mentioned as ‘K.R.Annegowda s/o K.R.Rudregowda’. At Col.No.10, MR No. is mentioned as MR No.7/82-83 and GNH 9/82-83.
Ex.P4 is in respect of land in Survey No.305/2D measuring 09 guntas, situated at Koluru Village, Banakallu Hobli, Mudigere Taluk. At Col.No.9, it is mentioned as ‘K.R.Annegowda s/o K.R.Rudregowda’. At Col.No.10, MR No. is mentioned as MR No.7/82-83 and GNH 9/82-83.
Ex.P5 is in respect of land in Survey No.218/2 measuring 21 guntas, situated at Koluru Village, Banakallu Hobli, Mudigere Taluk. At Col.No.9, it is mentioned as ‘K.R.Annegowda s/o K.R.Rudregowda’. At Col.No.10, MR No. is mentioned as MR No.7/82-83 and GNH 9/82-83.
Ex.P6 is in respect of land in Survey No.308/1 measuring 04 guntas, situated at Koluru Village, Banakallu Hobli, Mudigere Taluk. At Col.No.9, it is mentioned as ‘K.R.Annegowda s/o K.R.Rudregowda’. At Col.No.10, MR No. is mentioned as MR No.7/82-83 and GNH 9/82-83.
Ex.P7 is in respect of land in Survey No.3 measuring 29, situated at Koluru Village, Banakallu Hobli, Mudigere Taluk. At Col.No.9, it is mentioned as ‘K.R.Annegowda s/o K.R.Rudregowda’. At Col.No.10, MR No. is mentioned as through MR No.10/82-83 and 19/82-83.
Ex.P8 is in respect of land in Survey No.220/3 measuring 14 guntas, situated at Koluru Village, Banakallu Hobli, Mudigere Taluk. At Col.No.9, it is mentioned as ‘K.R.Annegowda s/o K.R.Rudregowda’. At Col.No.10, MR No. is mentioned as MR No.7/82-83 and GNH 9/82-83.
Ex.P9 is in respect of land in Survey No.12 measuring 03 acres 07 guntas, situated at Bettagere Village, Banakallu Hobli, Mudigere Taluk. At Col.No.9, it is mentioned as ‘K.R.Annegowda s/o K.R. Rudregowda’.
At Col.No.10, MR No. is mentioned as MR No.11/82-83 and GNH 19/82-83.
Ex.P10 is in respect of land in Survey No.265 measuring 02 acres 27 guntas, situated at Bettagere Village, Banakallu Hobli, Mudigere Taluk. At Col.No.9, it is mentioned as ‘K.R.Annegowda s/o K.R. Rudregowda’. At Col.No.10, MR No. is mentioned as MR No.11/82-83 and GNH 9/82-83 “Pavathi Varas”.
Ex.P11 is in respect of land in Survey No.3 measuring 31 guntas, situated at Bettagere Village, Banakallu Hobli, Mudigere Taluk. At Col.No.9, it is mentioned as ‘K.R.Annegowda s/o K.R. Rudregowda’. At Col.No.10, MR Number is mentioned as MR No.11/82- 83 and GNH 9/82-83 “Pavathi Varas”.
Ex.P12 is in respect of land in Survey No.4 measuring 14 guntas, situated at Bettagere Village, Banakallu Hobli, Mudigere Taluk. At Col.No.9, it is mentioned as ‘K.R.Annegowda s/o K.R. Rudregowda’. At Col.No.10, MR Number is mentioned as MR No.11/82- 83 and GNH 9/82-83.
Ex.P13 is in respect of land in Survey No.6 measuring 10 guntas, situated at Bettagere Village, Banakallu Hobli, Mudigere Taluk. At Col.No.9, it is mentioned as ‘K.R.Annegowda s/o K.R.Rudregowda’. At Col.No.10, MR No. is mentioned as RR No.1146.
Ex.P14 is in respect of land in Survey No.8 measuring 3 acres 13 guntas, situated at Bettagere Village, Banakallu Hobli, Mudigere Taluk. At Col.No.9, it is mentioned as ‘K.R.Annegowda s/o K.R. Rudregowda’. At Col.No.10, it is mentioned as RR No.1146.
Ex.P16 is the Mutation Register Extract in respect of land in Survey No.230/1 measuring 3 guntas situated at Koluru village, Banakal Hobli, Mudigere Taluk, wherein, it is mentioned as Rudregwoda son of Kalegwoda died on 29.9.1981 and elder son K.R.Annegowda is the only son and katha is standing in the name of Rudregwoda and the same may be transferred in the name of his son K.R.Annegowda s/o K.R.Rudregowda and accordingly as per order dated 28.3.1995, katha has been changed in the name of K.R.Annegowda s/o Rudregwoda.
20. It is such a factor that the succession is stated by virtue of “Pavathi Varas” i.e. intestate succession of Annegowda. Incidentally, K.R. Annegowda is represented to be the only son. Thus, the recommendation by the Revenue Inspector dated 28.3.1995 also stated that K.R.Rudregowda is dead and katha may be made in the name of K.R.Annegowda. Thereafter, in Ex.P7, mutation is changed from K.R.Rudregowda in favour of K.R.Annegowda son of K.R.Rudregowda and one Satish who is the son of Annegwoda in respect of four items of land and properties and the process continues in respect of other properties also in Ex.P18,19, 20 and 21.
21. Thus, the significant aspect that could be noted in revenue records is that, kathas are not changed in the name of K.R.Annegowda by virtue of partition or agreement to partition. The most unbecoming aspect of the matter is that, in the Mutation Extract, it is mentioned as K.R.Annegowda as the only son of K.R.Rudregowda that means K.R.Basegowda did not born or if he had born, died issueless. If the contention of earlier partition by defendant was true, nothing prevented the defendant to claim under the said alleged partition.
22. The document always has to be read with reference to the context and attending circumstances. Here, K.R.Rudregowda is senior coparcener. His sons are K.R.Annegowda and K.R.Basegowda and the same is not disputed. Similarly, on death of K.R.Basegowda, plaintiffs filed a suit as legal representatives of K.R.Basegowda and K.R.Annegowda was the defendant when the suit was filed and thereafter, it appears that K.R.Annegowda died during the pending proceedings before first Appellate Court and branch of K.R.Annegowda came on record.
23. For a moment, the aspect which requires serious examination is, apart from considering the fact that whether the document dated 28.1.1980 is a regular and valid partition or a mere an agreement that was not completed or document that has come under unreliable circumstances.
24. The interesting point to be considered is, the mode of devolution of rights as stated in the revenue records. Nodoubt, K.R.Basegowda died on 20.4.1987 and there is no mention regarding Ex.D1 in any of the revenue records.
25. No-doubt, Ex.D1 is an unregistered document. Neither it falls in the groove of agreement to partition or Panchayat Palupatti. Regard being had to the fact that there it could be seen that the partition effected earlier and an agreement was entered into.
26. Another serious aspect to be considered is, when partition was agreed earlier orally where was the necessity of making another agreement. Regard being had to the fact that K.R. Basegowda is said to have undertaken to execute the registered partition deed whenever necessary and it was not done. Meanwhile, K.R.Rudregowda died in the year 1991 and his son K.R.Basegowda died in the year 1997 and Ex.D1 did not see the light of the day thereafter.
27. Further, discussion of learned District Judge is that, emphasis is given on Ex.D1 without looking into the background of the revenue entries and the enabling fact for changing the revenue records.
28. In the circumstances, whenever a partition is effected or a deed is entered into or agreement is made to go for registration at future date, it is necessary and a formality that total properties of the joint family is mentioned and the portion that is allotted to the outgoing member is also mentioned. In this case, no details of the properties are forthcoming.Just Rs.30,000/- was paid to K.R.Basegowda. But it is not stated as to how money was paid from which source and what right either K.R.Rudregowda or K.R.Annegowda or K.R.Basegowda had over it.
29. The learned District Judge states that Exs.D4 and D5 are consent katha. They are in respect of Survey No.260/2P measuring 09 acres and 4 acres 02 guntas situated at Bettagere village, Banakallu Hobli, Mudigere Taluk, respectively, which are in the name of D.R.Bhavani, wife of K.R. Basegowda, MR Number is shown as 19/79-80. However, no explanation is forthcoming in respect of properties covered under Exs.D4 and D5, more particularly, when it is in the name of plaintiff No.6-Bhavani D.R.
30. In the circumstances, the manner of change of katha in the name of K.R.Annegowda, non explanation of Exs.D4 and D5 which are in the name of plaintiff No.6-D.R.Bhavani, wife of deceased coparcener, non explanation of details of all the properties under Ex.D1, non explanation of the source of Rs.30,000/- said to have been paid to K.R.Basegowda, there is no execution of agreement at that stage itself. By virtue of death of K.R.Rudregowda and K.R.Basegowda, there was no proceeding or communication by K.R. Annegowda in respect of Ex.D1 against the legal heirs as suit was filed in the year 1997 that is nearly 17 years after the execution of Ex.D1. Under these circumstances, I find that examination of attestor as DW2 does not legalize a document and the same is covered by full of suspicious circumstances and that cannot be accepted as partition within the four corners of law. The joint family is not disputed by virtue of averments recorded in Ex.D1 by the defendant. The properties never belonged to the family of the plaintiffs is not disputed. However, defendants claim is of exclusion of K.R. Basegowda and his family. Ex.D1 does not satisfy the features of either partition or agreement.
31. The sole contention of the defendants would be that joint family existed till 1979 or 1980 and it was disrupted. There was an oral partition followed by agreement. Under these circumstances, not only presumption of joint-ness that applies to the case and the fact that fortify the suit schedule properties invariably belonged to the joint family that was never partitioned. After the death of K.R.Rudregowda, succession of his share also not explained by the defendant. In the circumstances, I find that the schedule properties being the joint family properties of the family led by K.R.Rudregowda, originally continued and K.R.Basegowda and K.R.Annegwoda admittedly are the sons of K.R.Rudregowda.
32. Further, it cannot be said that one agreement was entered into to evidence earlier oral partition and one main document is yet to happen. The attendant circumstances witnessing the conduct of the defendant revenue entries, mode of claming them and imaginary nature of the contention conclude the falsity in the contention of defence.
33. Further the fact was suppressed when K.R. Annegwoda applied for transfer of katha. Thus, the change of revenue entries were made as intestate succession and not as partition. The learned trial Judge has decreed the suit for his sound reasonings and that qualifies for concurrence.
34. However, I find the principal District Judge as the first Appellate Judge seriously erred in not applying the provisions of law applicable to the partition. Hence, I answer the substantial questions of law accordingly and the appeal deserves to be accepted.
35. In the result, the appeal is allowed.
The judgment and decree passed by the learned Principal District Judge, Chikmagalur, in R.A.No.16/2003 dated 16-12-2008 is hereby set aside. Consequently, the judgment and decree passed by the learned trial Judge in O.S.NO.175/1997 dated 10.6.2003 is confirmed.
Sd/- JUDGE tsn*