IN THE HIGH COURT OF KARNATAKA AT BENGALURU
S. SUJATHA P.N. DESAI; JJ.
REGULAR FIRST APPEAL No.2161/2011; 5th JULY, 2021
H.G. MAHESHWARAPPA ORS.
APPELLANTS BY SRI P.N.RAJESWARA, ADV., SRI H.R.NARAYANA RAO, ADV. RESPONDENTS BY SRI R.V.JAYAPRAKASH, ADV. FOR R2; SRI R.GOPAL, ADV. FOR R4; R3 R5 ARE SERVED V/O. DT.5.4.2021 R2, R4 R5 ARE LR’S OF DECEASED R1(A))
J U D G M E N T
P.N. DESAI; J.
This appeal arises out of judgment dated 22.09.2011 passed in O.S.No.29/2009 by Ist-Additional Senior Civil Judge, Davanagere, wherein the suit for partition filed by the plaintiffs came to be dismissed.
2. The appellants were the plaintiffs and respondents were the defendants before the trial court and they will be referred as per their respective ranks before the trial court.
3. The brief case of the plaintiffs is that: The suit properties shown in ‘B’ schedule of the plaint are agricultural land bearing (i) Sy.No.29/2 measuring 3 acres 35 guntas, (ii) Sy.No.44/2 measuring 2 acres 36 guntas,(iii) Sy.No.44/3 measuring 2 acres 28 guntas, (iv) Sy.No.47/3 measuring 7 acres, (v) Sy.No.57/2P measuring 19 acres 16 guntas situated at Hanumanahalli and Kalavuru village in Davangere Taluka. Item Nos.1 to 5 of ‘C’ schedule are immovable properties i.e. house and vacant site bearing Khatha Nos.22, 33/1, 22, 36/2 situated at Hanumanahalli village, Davanagere taluk. The movable properties like tractors and trailers, gold jewelry and silver ornaments are shown as item Nos.1 to 3 of ‘D’ schedule property.
4. One H.G.Siddappa, was the propositus of the family. The defendant No.1 – H.G.Basavalingappa was the only son of the propositus. The defendant No.1 has five sons and three daughters who are the plaintiffs and defendant Nos.2 to 5. It is contended that all of them are the members of the joint family of which the defendant No.1 is said to be the Kartha.
5. It is contended that the defendant No.1 is a greedy and stubborn person having peculiar attitude of exercising dominance over his sons. Therefore, though his sons have got respect, but they are always under the scare of his father. It is further contended that the joint family owned 39 acres 35 guntas of land as mentioned in ‘B’ schedule of the plaint. During the year 1999, since plaintiff No.1 and defendant No.5 were unable to tolerate the attitude of their father, revolted against their father i.e. defendant No.1 and expressed their intention that they are unable to bear the harassment, accordingly a panchayath was convened to settle the dispute thereby dividing the schedule ‘B’ properties only according to the intention of defendant No.1.
6. It is further averred that plaintiff No.1 and defendant No.5 were fed up with the attitude of their father/defendant No.1 and not able to live along with joint family, decided to divide the joint family properties in accordance with law. It was agreed that defendant No.1 has to retain item No.4 of ‘B’ schedule property bearing Sy.No.57/2P measuring 19 acres 16 guntas in his name on the condition that the said property should be divided amongst all his sons equally, after his death. Plaintiff Nos.1, 4 and defendant No.2, 4 5 agreed for the same. Accordingly, a partition came to be effected under the partition deed dated 24.02.1999, in respect of ‘B’ schedule property and only 18 acres and odd guntas was divided between five sons. It is contended that the said partition is unequal, unfair and not in accordance with law.
7. However, defendant Nos.1, 2, 4 and plaintiff No.4 were residing under the same roof and enjoyed the other properties. Even though the plaintiffs No.2 and 3 are entitled to partition in the joint family properties, they were not allotted any share in the joint family properties. Thereafter, plaintiff No.4 was thrown out by defendant No.1 from joint cultivation of the properties.
8. Defendant Nos.2 and 4 continued to reside with defendant No.1. Taking undue advantage of the development, defendant No.1 created several documents in the name of defendant Nos.2 and 4, such as, gift deed conveying item No.5 of ‘B’ schedule property measuring 19 acres 16 guntas in favour of defendant Nos.2 and 4. Out of 19 acres 16 guntas, an extent of 9 acres 28 guntas each was gifted to defendant Nos.2 and 4 as per gift deeds dated 20.03.2009. Defendant No.1 failed to keep his promise that after his death, Sy.No.57/2P measuring 19 acres 16 guntas would be divided among all his sons equally. Though several Panchayats were held, defendant No.1 who was adamant did not adhere to the advice of well wishers. Hence, plaintiffs were constrained to file suit for partition and separate possession of their 1/9th share and prayed to declare that partition deed dated 24.02.1999 and alleged gift deeds are not binding to the interest of the plaintiffs over ‘B’ schedule properties. With these pleadings, plaintiffs prayed to decree the suit.
9. The defendant No.1 during his life time filed a written statement. He has admitted the relationship with the plaintiffs. But he denied that suit schedule ‘B’, ‘C’ and ‘D’ properties are ancestral joint family properties. He has denied all other averments of the plaint as false. It is contended by defendant No.1 that in order to maintain the family respect, peace and harmony among members of the joint family and at the request and on demand made by his sons, partition deed dated 24.02.1999 came to be effected. Thereafter, by metes and bounds a partition and division took place between defendant No.1 and his major sons. In respect of a house, open space threshing floor, a mutually agreed another deed of partition took place. Therefore, all the properties were partitioned among joint family members and they were in enjoyment of their respective shares. Their names were also entered to revenue documents as per their share in the properties. In fact, defendant No.5 has sold his entire property to one Kaleshapppa Kurki and threshing floor to one Sathish. The said partition deed is acted upon. It is further contended that defendant No.1 was the exclusive owner of schedule ‘B’ property bearing Sy.No.57/2P measuring 19 acres 16 guntas of Kalavur Village and it is his self- acquired property which was lawfully fallen to his share. The other contention of plaintiffs are all false. Since there was already a partition through registered deed of partition, there cannot be again a suit for partition. After gap of 10 years, there is absolutely no grounds for reopening the partition. There is no joint family so as to claim the share. The plaintiff Nos.2, 3 and defendant No.4 are the daughters of defendant No.1 and they were given gold jewelry and cash at the time of their respective marriage in lieu of share. So they are not having any right in respect of joint family properties. With these main grounds, he prays to dismiss the suit.
10. During the pendency of the suit, defendant No.1 died and his LRs have filed written statement and they have reiterated the contents of written statement of defendant No.1. Defendant No.2 also filed the written statement and denied plaint averments. He also filed defence on the same line as that of defence stated by defendant No.1. It is further contended that defendant No.1 raised crops like arecanut, banana, maize and other crops, he has dug bore-well and borrowed Rs.21.00 lakh loan from the State Bank of Mysore, ADB Branch, Davanagere for improvements of the land. As defendant Nos.2 and 4 were taking care and providing all necessity to defendant No.1 and his wife, out of love and affection, defendant No.1 gifted his property in favour of defendant Nos.2 and 4. Defendant No.4 adopted the written statement filed by defendant No.2.
11. On the basis of the above pleadings, the trial court framed the following issues:-
“1) Whether the plaintiffs prove that plaint ‘B’, ‘C’ and ‘D’ schedule properties are the joint family properties of themselves and the defendants?
2) Whether the plaintiffs father prove that under the partition Dt:24/09/1999 there has been unequal and unfair division of properties as alleged in para-3 of their plaint?
3) Whether the plaintiffs further prove that under the partition of 1999 plaintiffs 2 and 3 are not allotted with any property?
4) Whether the plaintiffs further prove that the partition deed Dt:24/02/1999 is not binding on them with respect to ‘B’ schedule properties? prove that the partition deed Dt:24/02/1999 is duly acted upon by all the sharers?
6) Whether the second defendant proves that suit R.S.No.57/2P is his exclusive property?
7) Whether the second defendant further proves that the suit is bad for non-joinder of necessary parties as contended in para 11 of his W.S?
8) Whether the plaintiffs are entitled for the reliefs claimed in the suit?
9) What order or decree?
1) Whether the defendant No.1(a) is entitled to claim her share in the ancestor properties of the family of the plaintiffs ?
12. Thereafter, on behalf of plaintiffs, Smt.Sulochana-plaintiff No.2 was examined as PW.1, plaintiff No.1 got examined himself as PW.2 and another two witnesses were examined as PWs.3 and 4 also got marked 14 documents as Exs.P1 to P14. On behalf of defendants, defendant No.4 got examined as DW.1 and got examined other three witnesses as DW.2 to DW.4 and got marked 22 documents as Exs.D1 to D22.
13. After hearing the arguments, the learned trial Judge dismissed the suit. Aggrieved by the same, the plaintiffs have preferred this appeal.
14. Learned counsel for the appellants Sri. P.N.Rajeswara and Sri. H.R.Narayana Rao, argued that the father of the plaintiffs was adamant and in order to avoid him, partition deed dated 24.02.1999 was effected, but it is unfair, unequal. No explanation is forthcoming as to why larger share was given to defendant No.1. No oral evidence was led in this regard and daughters were not given any share in the joint family properties. The trial court failed to appreciate that the partition dated 24.02.1999 is only a formal partition. The trial court has failed to consider the circumstances under which it came into existence. It was agreed at the time of said partition that the joint family properties of defendant No.1 to be divided equally among all his children after the death of defendant No.1. Further as the daughters were not allotted any share in the suit schedule properties, such a partition cannot be treated as valid partition in the eye of law. The trial court failed to come to the conclusion on Exs.P13 and P14 – Gift deeds, wherein the Kartha of the joint family had no right over the ‘B’ schedule properties to execute the gift deeds. Therefore, the same are null and void in the eye of law. With these main arguments, the learned counsel prays to set aside the judgment and to allow the appeal.
15. Against this, Sri.R.V.Jayaprakash, learned counsel for respondent No.2 and Sri R.Gopal, learned counsel for respondent No.4 argued that there is no pleading regarding fraud or misrepresentation. Any such contention taken are required to be specifically pleaded and particulars to be stated as required under Order 6 Rule 4 of Code of Civil Procedure. The partition deed is a registered partition deed and it was acted upon. The suit is not filed within a period of three years and the same is barred by law of limitation. The suit property bearing Sy.No.57/2P was a self-acquired property of defendant No.1, so he was competent to gift or sale the said properties as per his wish. The said gift deeds are acted upon and khatha was changed into individual names. Therefore, in view of Article 59 of the Limitation Act, the suit is not maintainable without challenging the gift deeds. The learned counsel argued that the trial court has considered all the aspects in proper perspective, rightly appreciated the evidence and dismissed the suit. In support of his contention, learned counsel relied on the following decisions:
1. AIR 1976 SC 1 in Ratnam Chettiar and others vs. S.M.Kuppuswami Chettiar and others;
2. AIR 1976 SC 1935 in The Controller of Estate Duty, Gujarat vs. Shri Kantilal Trikamlal;
3. 1971(1) SCC 837 in Krishna Beharilal vs. Gulabchand and others;
4. (2003) 12 SCC 419 in Azeez Sait dead by Lrs. And Others vs. Aman Bai and others;
5. (1995) 1 SCC 198 in Ramti Devi (Smt.) vs. Union of India;
6. (2019) 2 SCC 727 in Jamila Begum (dead) through Legal representatives vs. Shami Mohd. (dead) through legal representatives and another;
7. (2010) 12 SCC 112 in Suhrid Singh Alias Sardool Singh vs. Randhir Singh and others.
16. In the light of arguments addressed, the following points would arise for our consideration:
1. Does the applicants in I.A.No.2/2012, I.A.No.1/2018 and 2/2020 have made out any grounds under Order 41 Rule 27 of Code of Civil Procedure to prove that the documents produced by them along with their applications by way of additional evidence have bearing on decision of this appeal and they are necessary for just decision of this appeal?
2. Does finding of the trial court that the partition deed dated 24.02.1999 in respect of ‘B’ schedule property and the gift deeds executed by defendant No.1 in favour of defendant Nos.2 and 4 are not binding on the plaintiffs and there are no grounds to re-open the partition?
2. Does the plaintiffs prove that there was an understanding that after the death of defendant No.1 his property shall be divided among all his children?
3. Does the judgment of trial court is illegal, perverse and needs interference by this court?
17. We have perused the judgment of the Trial Court and records of the case.
18. The learned Trial Judge answered issue Nos.1, 2 and 4 to 6 together and gave a finding that all the parties voluntarily participated in the execution of Ex.D1-partition deed in the year 1999. The learned trial Judge further held that if at all plaintiffs were not in agreement with the terms of partition, they would not have joined the partition and division made under the said partition. The learned trial Judge also found evidence of plaintiffs is contrary to the pleadings. Plaintiffs’ contention that their father was adamant and of indifferent attitude is falsified by oral evidence of PW.2 that only because as the 1st defendant did not attend the marriage of her daughter difference arose between them. The Trial Court found that the contention of the plaintiffs that they accepted the Ex.D1-partition deed under compulsion has no basis. There is no pleading regarding undue influence, fraud, coercion or misrepresentation. The Trial Court held that the contention of the plaintiffs that after the death of defendant No.1, the properties are to be divided equally between all the brothers is not proved. The Trial Court held that partition has been already given effect and acted upon by the parties.
19. The Trial Court came to conclusion that there are no grounds for reopening the partition. The Trial Court held that the contention of the plaintiff Nos.2 and 3 who are daughters that they were not given any share in the family properties as they were not parties to partition deed-Ex.D1 is also not tenable. The Trial Court found that all his daughters were married prior to the year 1990 and in view of amendment to Hindu Succession Act by Karnataka Amendment Act, 1990, which came into force on 30.07.1994 or the Central Act (Amendment to Hindu Succession Act, 2005) daughters are not entitled for any share. Accordingly, the Trial Court dismissed the suit.
20. The appellants have filed I.A.No.2/2012 under Order 41 Rule 27 of Code of Civil Procedure to produce 12 documents as additional evidence. Appellant No.4- H.G.Gangadhra in his affidavit has stated that he could not produce the documents before the trial court during the course of trial and he has not offered himself for adducing evidence as he was fixed in criminal proceedings. He has contended that the documents be received in evidence.
21. The respondent Nos.2 and 4 have filed objections stating that the first appellant and fourth appellant have already sold the property which fell to their share in the partition of the year 1999. The documents Nos.7 and 12 are in respect of suit item No.5 and the other documents have no relevance, the appellants have not given valid reason and prayed to reject the application.
22. On perusing the affidavit of appellant No.4, it does not disclose any grounds for allowing production of additional documents as additional evidence. On the other hand, these documents have no bearing on the decision of this appeal. These documents pertains to loan taken by H.G.Basalingappa which is not disputed by defendants. The sale deed of the year 1960 and which was already produced at Ex.D20, the Pakka Book, certified copies of the RTC’s, certified copy of the sale deed, order of revenue authorities, the case records in O.S.Nos.9/2006 and 10/2005 and judgment passed in R.A.No.173/2005. Those documents have no bearing on the issues involved in this case. The copies of the judgments are in respect of right of way and in Sy.Nos.60/3 and 61/6. Infact, judgment in O.S.No.9/2006 goes against the plaintiffs, wherein the injunction order was issued against the brothers of defendant No.1. R.A.No.173/2005 also in respect of defendant No.1 and one Sadashivappa. The learned counsel failed to show how and in what way these documents will help the applicants and necessary for just decision of this appeal.
23. On the other hand, in view of discussions made in answer to point Nos.2 to 4, in subsequent paragraphs, we find no grounds to allow this application as those documents are not necessary for just decision of the case. Accordingly, I.A.No.2/2012 is liable to be rejected.
24. Similarly respondent No.4 has filed I.A.No.1/2018 to produce the certified copy of sale deed, mutation extract, pahanis and he has contended that during pendency of the appeal the first appellant, his wife and children have sold portion of 2 acres, out of 3 acres 20 guntas through a registered sale deed in favour of one T.Parashuram. Similarly, 4th appellant has sold portion of 2 acres out of 3 acres 20 gunts in favour of one Rathnamma. Hence, he contended that those documents prove earlier partition between the appellant and defendant.
25. I.A.No.2/2020 is filed by respondents No.2 and 4 for production of judgment in R.A.No.112/2016 dated 23.02.2017 and O.S.No.814/2011 dated 4.11.2016 contending that wherein they have obtained injunction order against the appellants.
26. We have perused the certified copies of those judgments. Those proceedings are subsequent events after filing of the suit before trial court in O.S.No.29/2009, and it appears that the reliefs sought in those suits is relief of permanent injunction in respect of Sy.No.57/2P. There is a reference about O.S.No.29/2009 and there is also reference regarding RFA pending before this court. Hence, those documents have no relevance to decide this appeal and parties are bound by the decision in this appeal. In view of the discussions made, in answer to the other points and the finding arrived by us, these documents are not at all necessary for just decision of this case. Accordingly, the said application – I.A.No.2/2020 is liable to be rejected.
27. We have reassessed the evidence on the basis of pleadings and arguments and perused the records.
28. The relationship of the parties is not in dispute. It is also evident that during pendency of the suit, defendant No.1 died. It is also not disputed by plaintiffs that all daughters of defendant No.1 married prior to the year 1990.
29. It is the contention of the plaintiffs that the joint family owned 39 acres 35 guntas of agricultural land and other properties. Because of the attitude of defendant No.1, the plaintiff No.1 and defendant No.5 in the year 1999 expressed their desire to separate themselves from the joint family. Then panchayat was held. It is contended that defendant No.1 was very greedy and stubborn person intend to have control over his sons. The plaintiff No.1 and defendant No.5 just to escape from control of their father, agreed for decision of their father. Accordingly, a registered partition deed came to be entered on 24.02.1999 between plaintiff No.1, plaintiff No.4 and defendant Nos.1, 2, 4 and 5. It is the contention of the plaintiffs that the share fallen to the defendant No.1 would be divided after his death between his all the sons equally. According to them apparently the said partition is unfair and not in accordance with law and prayed for re-opening the partition.
30. To prove their claim, PW.1-Smt.Sulochana who is the plaintiff No.2 has filed examination in chief affidavit which is nothing but reiteration of plaint averments. In the cross-examination she has admitted that their mother Mahalingamma was alive but she is not made as a party to the suit. She has further stated that she is in good terms with her parents. All the children of defendant No.1 are in good terms with their parents and her relationship was cordial. There were no difference of opinion between her parents and herself. She has further admitted that herself and her sisters used to go to her parents house and her father was aged about 85 years, he is having love and affection towards his children and he is of good nature. This evidence of PW.1 falsify the contention of the plaintiffs that their father was adamant and dominating person, stubborn person and they wanted to escape from the clutches of their father for that purpose partition took place in the year 1999. Such a contention has no basis.
31. PW.1 admitted the partition deeds executed in the year 1999. She has also admitted that all the sons were in enjoyment of their separate and respective share as per said partition. She further admitted that there were no differences of opinion between his brothers in respect of partition. It shows that the partition of the year 1999 was accepted and acted upon by all the parties to suit. Therefore, the evidence of plaintiff shows that there are no reasons for filing again a suit for re-opening of the partition. PW.1 examination in chief affidavit itself shows that after the death of defendant No.1 the property fallen to his share shall be divided among his all sons equally. So it appears the daughters of defendant No.1 very well knew about the partition and partition of the year 1999 and they are not claiming share in the suit property. It appears only at the instance of plaintiff Nos.1 and 4 they are joined as plaintiff in the suit, but her evidence clearly shows that she has no grievance about partition made by her father- defendant No.1.
32. PW.2-H.G.Maheshwarappa is the first appellant/plaintiff No.1. He has filed his examination in chief affidavit, which is nothing but restatement of plaint averments. In the cross-examination he has admitted about partition deed of the year 1999. He has also admitted that they have taken possession their respective shares and khata was made separately in their names in respect of property fallen to their share. He has identified his signature on the partition deed-Ex.D1 and he has admitted his signature and signature of the other defendants. According to him the recital to the effect that after the death of their parents the said Sy.No.57/2 shall be divided equally between his children is left out. This appears to be only imaginary untenable cause of action for filing of the suit. There is no pleading in this regard. He has admitted that his father has not taken share in the house. He has identified the oral partition deed-Ex.D2 in respect of house. He has admitted his signature and signature of other defendants and the witnesses on it.
33. It is very strange that in his further cross- examination he has given inconsistent and contrary evidence to that of his pleading stating that neither himself nor any children have asked their father to make a partition in the year 1999, but on his own his father made the said partition. He has stated that one Patel, Shivappa, K.G.Chandrashekarappa, K.Benakappa and Revanasiddappa were the panchas and after considering all the family properties the partition deed was prepared. He has admitted that the said partition deed was registered only after the all consent. Further he also admitted that they admitted partition in the presence of panchas. He has admitted that khata was made separately to their respective shares. He has obtained loan on the property which had fallen to his share. He has also admitted that he cultivated the land fallen to the share of defendant No.5 for a period of 3 years on lease basis. He has also admitted that after partition, he has constructed his separate his own house. He has also admitted that the defendant No.5 also sold his land and house which had fallen to his share.
34. According to this PW.2, when he went to his father’s house in the 2008-09 inviting him for marriage of his daughter, the defendant No.1 refused to attend the marriage. Only in this regard, there was difference of opinion between them. Except that there are no other reasons for difference of opinion between himself and his father. It shows the plaint allegation against defendant No.1 about his dominant character and attitude are all false and mentioned only for the purpose of filing the suit.
35. He has no dispute with his father regarding property. He has also stated that his father has told him that daughters will be given gold ornaments. He has admitted that his father has got love and affection equally to all his children. He admitted that his father made a loan and purchased two tractors. He has denied a suggestion that the Sy.No.57/2P property is the self acquired property of defendant No.1. He has admitted that as defendant Nos.2 and 4 were looking after his father, on 20.03.2009 his father gifted the property fallen to his share to defendant Nos.2 and 4 and defendant Nos.2 and 4 are in possession of the same. According to PW.2 they have no objection to partition dated 24.02.1999. But they have filed this suit stating that the defendant No.1 has cheated them in respect of Sy.No.57/2P. He has admitted that defendant No.1 has spent for educational expenses and looked after all his children. He has no objection for earlier partition. This evidence of PW.2 is totally contrary and inconsistency to the plaint averments. It shows only as the defendant No.1 gifted the property in favour of defendant Nos.2 and 4 in the year 2009, they have filed the suit making some ground and take a chance that whether they will also get some property in defendant No.1’2 in Sy.No.57/2P. PW.2 admissions in the cross-examination is fatal to the plaintiffs case.
36. PW.3-H.G.Revensiddappa, relative of plaintiffs and defendants. He has also stated in his evidence in line with examination in chief of PW.1 and PW.2. In the cross-examination he denies registered partition deed of 1999, but stated that he knew the contents of the partition deed and he is witness to it. He has admitted that there was dispute between the defendant No.4 and himself with regard to boundaries of suit properties. This witness admitted that the first defendant was good person and was a respected man. He has admitted that in the partition of the year 1999 defendant No.4 was given 3 acres 35 guntas and half share was given to him. He has stated that regarding boundary dispute with defendant No.4 he went to the police station. This witness has also admitted that he knew the partition of the year 1999 and he also knew what is the share fallen to plaintiffs and defendants. He has also stated that from the year 1999 they are separated and enjoying their respective share. He has also admitted that defendant No.5 has sold property fallen to his share. He has denied some of the contents of his examination in chief. Therefore, the evidence of this witness again falsify the contention of the plaintiffs regarding partition.
37. PW.4-Benakappa is one of the attesting witness to the said partition deed. He is also relative of plaintiffs and defendants. His examination in chief affidavit is in line with the plaint averments. He has stated that when they asked the defendant No.1 as to why he has not mentioned in the partition deed that the property which had fallen to his share would be divided between all his sons, defendant No.1 told him that he will not cheat the children. The deed writer also stated that such conditions cannot be put in the partition deed, because it will be difficult to register such partition deed. Believing the words of deed writer they have signed as attesting witness to the partition deed. He has also admitted that both the plaintiffs and defendants were in possession of their respective share as per the partition deed of the year 1999. He has further stated that plaintiffs and defendants are residing separately. Defendant No.5 has sold the property which had fallen to his share. He has also admitted that the marriage of last daughter of defendant No.1 was performed in the year 1994. So his evidence will not help the plaintiffs to prove their grounds for re-opening of the partition.
38. The documentary evidence produced by the plaintiffs shows that there was registered partition deed at Ex.P1; Ex.P2 to P6 are RTCs; Ex.P7 and P8 are tax assessment register extracts pertaining to the suit house; Ex.P9 and P10 to P12 are documents regarding to show that the tractor was standing in the name of their father; Ex.P13 and P14 are the copy of gift deeds executed by defendant No.1 in favour defendant Nos.2 and 4 dated 20.03.1999. It is evident that Sy.No.57 had fallen to the share of defendant No.1. The name of defendant No.1 and his sons were entered in the revenue records as per the partition deed and they are residing separately. Thereafter, on 20.03.2009 the defendant No.1 gifted the property fallen to his share through two registered gift deeds in favour of defendant No.2 and 4 as per Ex.P13 and P14. Defendant Nos.2 and 4 are in possession of their properties. Plaintiffs have not produced any documentary evidence to show that Sy.No.57 is their joint family property. There is no evidence placed on record by plaintiffs. The oral and documentary evidence of plaintiffs itself shows that plaintiffs have failed to discharge initial burden casted upon them to prove their contention. There is no evidence to show that the earlier partition was the effect of undue influence, misrepresentation, coercion or fraud on plaintiffs by defendant No.1 or any of his sons. The daughters are all were in good terms with their father. They don’t claim share in the partition of the year 1999. On the other hand, their examination in chief and cross examination indicates that the daughters are not claiming any share and whatever their father has done they have consented for it and acted upon the said partition. It appears the daughters have joined only at the instance of and ill advise of plaintiff Nos.1 and 4 just to take a chance and trouble the defendants in view of coming into force of amendment to Hindu Succession Act.
39. Against this, defendants adduce their evidence.
40. Defendant No.4 has given his evidence as DW.1. He has deposed in his examination in chief as per defence taken by him in his written statement. Defendants have produced the registered partition deed dated 24.02.1999 which is at Ex.D1 and Ex.D2 is the memorandum of record of oral partition. Ex.D3 to D5 are the mutation order and extract of mutation register in respect of suit properties, which shows how the names of parties entered as per the partition deed Ex.D1 and Ex.D2. Further, Ex.D6 to D11 are the RTCs and Ex.D12 to D15 are the tax assessment register extracts which corroborates the evidence of the defendants. Ex.D16 and 17 indicates that the defendant No.1 has barrowed the loan for develop the lands and purchase tractor and trailer.
41. Ex.D1 – partition deed is in respect of the agricultural land. Ex.D2 memorandum of oral partition is in respect of the house and sites. Though Ex.D2 is unregistered, but the said deed from the very nature of its contents indicate that it is only a memorandum of partition recording the oral partition that took place between panchayatdars in respect of house and site property and it contains only a list of property that have fallen to the share of sons of defendant No.1. It is admitted by plaintiffs that the said Ex.D2 is also acted upon. The name of parities came to be entered in respect house property extract as per Ex.D12 and D15 as per the list of the property mentioned in Ex.D2 which had fallen to their respective shares. It is also evident that they are in possession of their respective shares. Ex.D19 and 19(1) are the two registered gift deeds wherein the defendant No.1 has gifted property which had fallen to his share. In the said deed he has mentioned that it is his self-acquired property which was purchased by him. Admittedly the said land had fallen to his share in partition, for this reasons also it become his self-acquired property. Ex.D20 is the copy of the registered sale deed dated 10.10.60 which shows that the said Sy.No.57/2 was purchased by defendant No.1 and his name is entered to the revenue records in respect of said property. Though DW.1 was cross-examined but there is nothing in his cross examination which will help the plaintiffs. He had denied suggestion that Sy.No.57 was purchased out of joint family fund. On the other hand cross examination made contrary to the admission made by the PWs.1 to 4. There is nothing to show that this defendant influenced the defendant No.1 to execute the gift deed in his favour.
42. The defendants also got examined one witness by name Benakappa-DW.2, who is one of the attester of the said gift deed. DW.3- K.M.Channabasappa has stated about the possession of the said Sy.No.57/2P by defendant Nos.2 and 4. DW.4-G.S.Paramashivappa, is the relative of defendants who is also attesting witness to the gift deeds- Ex.D19 and Ex.19(a). There is nothing in their cross examination to disbelieve their evidence. DW.4 has clearly stated that defendant No.1 has purchased the said Sy.No.57 out of his own income and it is his self acquired property.
43. It is evident that the partition deed Ex.D1 is the registered partition deed to which plaintiff No.1, Plaintiffs evidence indicate that they have no dispute about partition of the year 1999. Ex.D2 came to be prepared on the next day of the partition dated 24.02.1999. Of course the said Ex.D1 was registered on 25.02.1999. It appears thereafter as per the advise of elders there was also memorandum of recording the oral partition regarding house and site came to be recorded which is nothing but mere record of previously completed partition between the parties. Therefore, the deed containing mere recital regarding what has been already taken place does not require any registration. Because the said deed contains previously completed transaction. It contains only list of properties allotted to their shares. Therefore, non- registration of the said document is of no consequence. The said document can be used to show that the said properties were joint family properties and the parties shown were in possession of the said properties and they have severed their status. Defendant No.1 has not taken any share in house and site property. The said oral partition which was entered in respect of sites and house recording the list of the properties fallen to their respective shares and partition a severance of status in respect of the sites the said document is admitted by the plaintiffs. Further the said partition in respect of house and sites is also admitted by plaintiffs. The plaintiffs evidence does not indicate that they claim share in house or sites.
44. Though there may be presumption that there is joint Hindu family there can be no presumption that joint family posses joint family properties. The initial burden to prove that the suit properties are joint family properties is on the plaintiffs. The plaintiffs have failed to show that Sy.No.57 purchased by defendant No.1 is the joint family property or it is purchased by the income of joint family fund. The defendant No.1 died during pendency of the suit. The defendants have adduce the evidence of DW.4 to show that it was a self-acquired property of defendant No.1. There is also recital in the deed that it is self acquired property of defendant No.1. Apart from that, the plaintiffs admit the said partition deed of the year 1999, which itself indicate the property fallen to share of defendant No.1 become his self acquired property. The daughters never objected for it. The sons are all parties to it.
45. Therefore, on entire reassessing of the evidence it is evident that the suit filed by the present two sons and two daughters is only a result of greed when the gift deeds were made on 20.03.2009 by defendant No.1 in favour of his two sons who were admittedly looking after defendant No.1 and with whom defendant No.1 was residing after partition. Plaintiffs have not at all challenged the said partition within three years inspite of knowledge of partition.
46. In view of the Article 59 of the Limitation Act, the suit for reopening of the partition becomes time barred. The said partition is acted upon. There is no pleading about any fraud or misrepresentation, coercion or there is any such evidence.
47. On the other hand, the oral evidence of plaintiffs shows they were in good terms with their father defendant No.1. They have no objections for partition deed of the year 1999. Their grievance is only why defendant Nos.2 and 4 were given share in the property of defendant No.1 by virtue of gift deeds. But as already discussed above, it is the self-acquired property of defendant No.1 and during his life time only he has filed written statement making his stand clear about partition and gift deeds. Even otherwise also the said land had fallen to his share in registered partition deed. There is evidence that he made a loan on the said property. He has purchased tractor also. None of the plaintiffs questioned it. It is only after gift deeds were registered, it appears at the instigation of some person this suit came to be filed, which is not legally tenable.
48. The learned counsel for the defendants relied upon decision of the Supreme Court reported in AIR 1976 SC 1 in the case of Ratnam Chettiar and others vs. S.M.Kuppuswami Chettiar and others wherein at para-19 the Apex Court has stated the principles as to when the partition can be reopened and it is held as under:
“19. Thus on a consideration of the authorities discussed above and the law on the subject, the following propositions emerge:
(1) A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside.
(2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors.
(3) Where, however a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition.
(4) Where there is a partition of immovable and movable properties but the two transactions are distinct and separable or have taken place at different times, if it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair.
The facts of the present case, in our opinion, fall squarely within propositions Nos. (3) and (4) indicated above.”
49. Further, in another decision reported in AIR 1976 SC 1935 in the case of The Controller of Estate Duty, Gujarat vs. Shri Kantilal Trikamlal at paragraph 18 it is held as under:
“18. The proposition is trite that in an undivided Hindu family coparceners have no predictable or defined shares but each has an antecedent title in every parcel of property and is jointly the owner and in enjoyment with the others. But surely it is well-established that at the very moment members decide upon a partition eo instanti, a division in status takes place whereupon the share of the demanding member gets crystallised into a definite fraction and if there is division by metes and bounds the allotment of properties vivifies and specifies such shares in separate ownership. These two processes or stages may often get telescoped when by consensus the coparceners jointly divide the properties. Unequal divisions of properties knowingly made may not spell invalidity and mathematical equality may not be maintained always in a partition while, ordinarily, substantial fairness in division is shown. Granting these legal positions, the more serious question which has been agitated before us is as to whether a willing, albeit bona fide, arrangement whereby a substantially reduced share is taken by the decedent consequentially vesting a proportionately larger estate in the recipient is a disposition falling within Explanation 2 to S. 2(15) and therefore ‘property’ within the substantive definition. In this context we may have to read Ss. 9 and 27 for property taken under a disposition made by the deceased may be deemed to be a gift in favour of the accounting person in the circum- stances mentioned in Section. 9. Similarly, Section 27 also tracks down certain dispositions made by deceased persons in favour of relatives by treating them as ‘gifts’. The basic concept of disposition looms important in such circumstances.”
50. Further, in another decision reported in 1971 (1) SCC 837 in the case of Krishna Beharilal vs. Gulabchandand Others wherein the Hon’ble Supreme Court held that the family arrangement is binding on all of them and Court should lean strongly in favour of family arrangement at paragraphs 7 and 8 it is held as under:
“7. The next question that we have to consider is whether the compromise in question can be considered as a settlement of family disputes. It may be noted that Lakshmichand and Ganeshilal who alongwith Pottobai were the principal parties to the compromise were the grand-children of Parvati who was the aunt of Bulakichand. The parties to the earlier suit were near relations. The dispute between the parties was in respect of a certain property which was originally owned by their common ancestor namely Chhedilal. To consider a settlement as a family arrangement, it is not necessary that the parties to the compromise should all belong to one family. As observed by this Court in Ram Charan Das v.Girjanandini Devi and ors – (1965) 3 SCR 841, the word “family” in the context of a family arrangement is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. If the dispute which is settled is one between near relations then the settlement of such a dispute can be considered as a family arrangement – see Ramcharan Das’s case (supra).
8. The courts lean strongly in favour of the family arrangements to bring about harmony in a family and do justice to its various members and avoid in anticipation future disputes which might ruin them all-see Sahu Madho Das and Others V. Pandit Mukand Ram and Another – (1955) 2 SCR 22.”
51. Further, learned counsel relied on the decision reported in (2003) 12 SCC 419 in the case of Azeez Sait Dead by LRs and others vs. Aman Bai and others wherein the Hon’ble Supreme Court held that when there is evidence showing that the partition had been accepted and acted upon by the plaintiff, plaintiffs are estopped from alleging that partition deed was nominal and not intended to be acted upon and it is held at paragraph-20 as under:
“20. The learned counsel appearing for the appellants contended that the parties are governed by the provisions of the Cutchi Memons Act. We are of the view that the issues as to whether Hindu Law or Mohammedan Law should be applied to the parties under suit is not really relevant and does not alter the situation because the partition had taken place in the year 1914 as between the brothers. The factum of partition and the deed of 1914 having been accepted, and in the absence of any evidence to destroy the validity of the partition deed, the application of Hindu Law or Muslim Law would not alter the findings in the case. When the partition of 1914 has been accepted and acted upon by the brother for all these years and had brought about an equitable settlement of the distribution of the properties between them, the plaintiff-appellants cannot now come round and say that the document is sham and nominal. A reading of the plaint would show that the plaintiff had never asked for a share in “Abba Manzil” during the life time of Mohd. Abba Sait, and the suit was filed only after the death of Mohd. Abba Sait in 1967. It is also admitted by the plaintiff that suit item 1 was in possession of Mohd. Abba Sait during his lifetime. Subsequently, defendants are in possession of the same. The entire evidence on record shows that the parties have been in possession and occupation of their respective shares and properties allotted under the partition deed and have dealt with the same. The trial court as well as the High Court have accepted the partition of 1914 for the cogent and convincing reasons recorded thereunder. The appellants have not shown any reason to interfere with the judgment of the High Court.
52. In a decision reported in (1995) 1 SCC 198 in the case of Ramti Devi (Smt) vs. Union of India, wherein the Hon’ble Supreme Court held there is prohibition under Evidence Act to adduce oral evidence to contradict terms of recital of the document and when the plaintiff is seeking to have the document avoided or cancelled, necessarily, a declaration has to be given by the court. Until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties also held with Article 59 of the Act, it is held at paragraph-2 as under:
“2. The question is whether the suit is within limitation. In the evidence, it was admitted that she had knowledge of the execution and registration of the sale-deed on 29-1-1947. Initially a suit was filed in 1959 but was dismissed as withdrawn with liberty to file fresh suit. Admittedly, the present suit was filed on 30-7- 1966. The question, therefore, is whether the suit is within limitation. Article 59 of the Schedule to the Limitation Act, 1963, relied on by the appellant herself, postulates that to cancel or set aside an instrument or decree or for the rescission of a contract, the limitation is three years and it begins to run when the plaintiff entitles to have the instrument or the decree cancelled or set aside or when the contract rescinded first become known to him. As seen, when the appellant had knowledge of it on 29-1-1949 itself the limitation began to run from that date and the three years’ limitation has hopelessly been barred on the date when the suit was filed. It is contended by Shri V.M. Tarkunde, learned Senior Counsel for the appellant, that the counsel in the trial court was not right in relying upon Article 59. Article 113 is the relevant Article. The limitation does not begin to run as the sale deed document is void as it was executed to stifle the prosecution. Since the appellant having been remained in possession, the only declaration that could be sought and obtained is that she is the owner and that the document does not bind the appellant. We are afraid that we cannot agree with the learned counsel. As seen, the recitals of the documents would show that the sale deed was executed for valuable consideration to discharge pre-existing debts and it is a registered document. Apart from the prohibition under Section 92 of the Evidence Act to adduce oral evidence to contradict the terms of the recital therein, no issue in this behalf on the voidity of the sale deed or its binding nature was raised nor a finding recorded that the sale deed is void under Section 23 of the Contract Act. Pleading itself is not sufficient. Since the appellant is seeking to have the document avoided or cancelled, necessarily, a declaration has to be given by the court in that behalf. Until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties. So the suit necessarily has to be laid within three years from the date when the cause of action had occurred. Since the cause of action had arisen on 29-1-1947, the date on which the sale deed was executed and registered and the suit was filed on 30-7-1966, the suit is hopelessly barred by limitation. The courts below, therefore, were right in dismissing the suit. The appeal is accordingly dismissed with costs.”
53. Further, in a decision reported in (2019) 2 SCC 727 in the case of Jamila Begum (dead) through legal representatives vs. Shami Mohd. (dead) through legal representatives and anotherwherein the Supreme Court discussed about presumption regarding registered document and the burden of proof. At paragraphs-28 to 30 wherein it is held as under:
“28. Insofar as the plea of undue influence, merely because the parties are related to each other or merely because the executant was old or of weak character, no presumption of undue influence can arise. The Court must scrutinise the pleadings to find out that such plea has been made out before examining whether undue influence was exercised or not.
29. While considering the aspect of plea of undue influence and onus probandi, in Subhas Chandr Das Mushib v. Ganga Prasad Das Mushib AIR 1967 SC 878, it was held as under AIR p.880, paras 4 7)
“4. Under Section 16(1) of the Contract Act a contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. This shows that the court trying a case of undue influence must consider two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor and (2) has the donee used that position to obtain an unfair advantage over the donor?
7. The three stages for consideration of a case of undue influence were expounded in Raghunath Prasad Sahu v. Sarju Prasad Sahu 1923 SCC OnLine PC 62 : (1923-24) 51IA 101 : AIR 1924 PC 60 in the following words:
“In the first place the relations between the parties to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second stage has been reached — namely, the issue whether the contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. Error is almost sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of these parties. Were they such as to put one in a position to dominate the will of the other?”
30. In the light of the above principles, considering the case in hand, no sufficient pleading in the plaint as to undue influence. Admittedly, Wali Mohd. had executed the mortgage deed dated 21-11-1967 in favour of Jamila Begum and Sakina. Wali Mohd. was in service in Power House till 1943 and was having full knowledge of things as to what he was doing. In this case, respondent 1Shami Mohd. failed to prove that Jamila Begum was in a position to dominate the Will of Wali Mohd. to obtain unfair advantage. The mortgage deed was dated 21-11- 1967 and the sale deed in favour of the appellant- Jamila Begum was dated 21-12-1970. Wali Mohd. died on 17.05.1971. During his lifetime, Wali Mohd. has not challenged either the mortgage deed or the sale deed. No evidence has been adduced to prove that appellant exercised undue influence to get the documents executed. Respondent 1 Shami Mohd. has failed to establish that the sale deed in favour of the appellant Jamila Begum is vitiated by undue influence or fraud.”
54. Further, Section 16(1) of the Contract Act, is also considered and it is held that unless there is a pleading and proof, undue influence cannot be presumed.
55. The decision reported in (2010) 12 SCC 112 in the case of Suhrid Singh Alias Sardool Singh vs. Randhir Singh and others is in respect of payment of court fees.
56. In the light of principles stated in the above decisions if the pleadings, evidence and are analyzed, it is evident that plaintiffs have failed to prove their case and the burden casts upon them.
57. The learned Trial Judge discussed the scope of Section 6A of the Hindu Succession Act and also the effect of Hindu Succession Act (Karnataka Amendment) Act 1990. It is also evident that all the daughters are married prior to 1994. Even there is a legally admissible and reliable evidence regarding valid partition as per Ex.D1 and D2. The said partition is proved and acted upon. The daughters never objected or challenged said partition. On the other hand, they have no grievance about the partition of the year 1999, only at the instance of plaintiff Nos.1 and 4 they are made as parties and their cross examination reveals that they have knowledge about the 1999 partition and there was no grievance about it. Therefore, the Trial Court rightly dismissed the suit.
58. In view of the above discussion, we find that the judgment of the Trial Court is neither illegal nor capricious. There is no error in the findings of the Trial Court. On the other hand, the learned Trial Judge has given proper reasonings and has rightly dismissed the suit.
59. We find no grounds to interfere with the judgment of the Trial Court. Accordingly, we pass the following:
O R D E R
(i) Appeal is hereby dismissed.
(ii) I.A.Nos.2/2012, 1/2018 and 2/2020 are dismissed.
(iii) In view of near relationship, parties shall bear their own costs.