Althaf Pasha vs Smt. Chikkathayamma and Others

Ram Mohan Reddy, J.—The 16th defendant in O.S. No. 40/1995 aggrieved by the judgment and decree dated 22.01.2007 of the Addl. Civil Judge (Sr. Dn.), Ramanagaram, Bangalore Rural District, allowing R.A. No. 12/1999 to set aside the judgment and decree dated 16.04.1999 dismissing O.S. No. 40/1995 of the Civil Judge (Jr. Dn.) and JMFC., Channapatna, and allowing the suit, has presented this second appeal. Respondent No. 1 instituted O.S. No. 40/1995 for declaration, partition and separate possession of her 1/6th share in the immovable property bearing No. 1439, ''B'' Division, Channapatna Town, Kothanahalli Road, measuring East to West 50 feet and North to South 50 feet. The immovable property was asserted to be the absolute property of one Mayegaiah, since deceased leaving behind six children of which, the plaintiff is the last child while the first son by name, Chikkamayegaiah, since deceased, is represented by his widow arraigned as the third defendant and two children as defendants 4 and 5; the second son by name Kalaiah, since deceased, represented, by his widow, defendant No. 7 and children, defendants 8 to 15; the third son by name, Channaiah arraigned as first defendant and a fourth son by name Bannaiah arraigned as second defendant, while, the fifth child being Hombamma, the sister of the plaintiff, arraigned as defendant No. 6 and the purchaser of the western half portion measuring 25 feet x 50 feet from out of the suit schedule property as defendant No. 16.

The suit was opposed by filing written statement of the 16th defendant (appellant) inter alia contending that defendants 2 and 3 i.e., Bannaiah, the fourth son of Mayegaiah and defendant No. 3, the widow of the deceased Chikkamayegaiah, the first son, jointly executed a sale deed dated 29.01.1992 conveying the western half of the suit schedule property for a valuable consideration, covenanting that under a palupatti dated 06.01.1992 recording a prior partition, that occurred on 13.12.1981 whence the suit schedule property fell to the share of the executants. In addition, it was contended that Ex. D1, sale deed contained the signature of the consenting witness, none other than the plaintiff and the other children of late Mayegaiah. It was further asserted that the palupatti having been given effect to between the deceased Mayegaiah as well as the legal representatives of the deceased male children and there being a prior partition, the plaintiff was disentitled to claim 1/6th share in the suit schedule property.

The trial Court in the premise of pleadings of parties, framed as many as six issues, which read thus:

Whether the plaintiff proves that she is in the joint possession of the suit schedule property alongwith the defendant No. 1 to 15?

Whether the plaintiff further proves that she is entitled for 1/6th share in the suit schedule property?

Whether the defendant No. 16 proves that the suit property was fallen to the share of the defendant No. 2 Bannaiah and defendant No. 3 Boramma under partition deed dt. 06.01.1992?

Whether the defendant No. 16 further proves that he purchased the suit properties under registered sale deed dt. 29.01.1992 from its owner?

Whether defendant No. 16 further proves that the plaintiff is the consenting witness for the sale and estopped from filing the suit?

To what reliefs the parties are entitled?

To what order and decree?

Plaintiff was examined as PW. 1 and marked four documents as Exs. P1 to P4 while for the defendants, 16th defendant was examined as DW. 1; defendant No. 3 - Boramma as DW. 2 and one C.L. Sathyanarayana, the scribe of Ex. D2 - sale deed as DW. 3 and marked Exs. D1 and D2.

The trial Court returned findings in the negative over issues 1 and 2 and in the affirmative over issues 3 to 5 observing that except for the self-serving statement of the plaintiff and in the absence of any other evidence of witnesses while defendant No. 3 Boramma examined as DW. 2 was a coparcener accepted the existence of a prior partition under the palupatti Ex. D1 and as credible evidence the oral testimony of DW. 3, Scribe that the plaintiff and defendant No. 7 - Venkatamma, daughters of ''Mayegaiah'' affixed their signature and L.T.M. respectively on Ex. D2, the sale deed as consenting witnesses, which was not disproved by rebuttal evidence and accordingly dismissed the suit.

The plaintiff, having preferred R.A. No. 12/1999, the lower appellate Court on re-appreciation of the material on record including the evidence, both oral and documentary, framed points for consideration and reversed the findings of the trial Court to answer the issues and the points for consideration in favour of the plaintiff observing that Ex. D1, the palupatti, when not proved by cogent evidence, so also the allegation that plaintiff affixed her signature to Ex. D2 as a consenting witness, declined to accept as credible evidence, the testimony of DWs. 1 to 3 and accordingly, by the judgment and decree, set aside the judgment and decree of the trial Court and allowed the suit.

Learned Counsel for the appellant submits that the trial Court, having appreciated the evidence on record justifiably dismissed the suit, while, the lower appellate Court was not justified in reversing the findings so as to decree the suit.

According to the learned Counsel, the palupatti Ex. D1 recording the settlement in the family by which, the suit schedule property fell to the share of two sons, Chikkamayegaiah and another Kalaiah represented by their widows, namely, Boramma and Venkatamma was to the exclusion of all the other children of Mayegaiah. Learned Counsel hastens to add that the covenants in Ex. D1 speak of an oral partition on 13.12.1981, which was reduced into writing on 06.01.1992, of which, DW. 2 none other than the third defendant - Boramma spoken and therefore, the trial Court justifiably had dismissed the suit. In addition, learned Counsel points to Ex. D2, the sale deed dated 29.01.1992 conveying western half portion of the suit schedule property for a valuable consideration and containing the signature of the plaintiff as a consenting witness, as spoken to by DW. 3, the scribe of the said document was substantial legal evidence of a fact in dispute, which the trial Court accepted as credible evidence and therefore, the lower appellate Court was not justified in reversing the finding.

Having heard the learned counsel for the appellant, perused the pleadings, the depositions and examined the judgment and decree of the Courts below, there can be no more doubt on facts that tire plaintiff denied the execution of the palupatti Ex. D1 as between her four brothers and affixing her signature as a witness to the sale deed Ex. D2. In the cross-examination of the plaintiff examined as PW. 1, nothing incriminating is elicited.

Boramma, admittedly did not offer a defence to the suit by filing a written statement, nevertheless, when examined as DW 2 stated that a partition had taken place 7 years ago and Ex. D1, the palupatti was recorded. The other defendants, except for the appellant - defendant No. 16, did not oppose the suit by filing a written statement denying the plea of the plaintiff. Yet again, except for defendant No. 3 and defendant No. 16, none entered the witness box to support the plea of the 16th defendant - appellant that there was a prior partition as between the members of the family of the deceased Mayegaiah.

Another aspect of the matter is the testimony of DW. 3 said to have written Ex. D1 Palupatti, without ascertaining the material particulars of the family of late Mayegaiah, as elicited in cross-examination, nor evidence of partition, though alleged to be oral on 13.12.1981. The evidence of DW 3 does not inspire confidence in the court, to accept as credible evidence.

The self-interested testimony of DW. 2 Boramma over the palupatti Ex. D1, in the absence of corroboration over the alleged oral partition effected on 13.12.1981 followed by Palupatti Ex. D1 on 06.01.1992, coupled with the unexplained delay in recording the oral partition, Ex. D1, written 13 days prior to execution of sale deed Ex. D2 it cannot but be said that Ex. D1 was not proved.

DW. 3 said to be the scribe of Ex. D2, sale deed dated 29.01.1992, testified to the fact of having drafted the sale deed, to which plaintiff affixed her left hand thumb impression as a witness, though it is contended that plaintiff consented to the sale transaction. A perusal of Ex. D2 shows that there is a thumb impression against Sl. No. 2 under the nomenclature ''witnesses''. Ex. D2, does not a covenant that the plaintiff affixed her thumb impression as a consenting witness to the sale transaction. This thumb impression not marked in evidence, and not confronted to the plaintiff, alleged to be that of the plaintiff is not proved in evidence except for the say of DW. 3. Even assuming for a moment that Ex. D2 contains the thumb impression of the plaintiff, that is referable to as an attesting witness. If that is so, then the term ''attested'' under the interpretation clause of Section 3 of the Transfer of Property Act, 1882, applies, wherein it is stated thus:-

"attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;

In other words, the plaintiff could have at best said to have attested the signatures of the executants of Ex. D2 and nothing more. Knowledge over the contents of Ex. D2 much less the transaction of sale cannot be attributed to the plaintiff. Hence, it cannot be said that the plaintiff had knowledge of either the palupatti Ex. D1, nor the oral factum of prior partition in the family of her father and her siblings, or the transaction of sale Ex. D2.

The oral testimony of DW. 3 to the effect that the plaintiff affixed her thumb impression as a witness, to the sale of the western half of the suit schedule property under Ex. D2 is not proved. Therefore, the sale deed Ex. D2 allegedly, the instrument by which there was disposition of the property, no evidence would be given in proof of terms of such disposition of the property except the document itself. Hence, the submission of the learned counsel for the appellant cannot be countenanced.

The trial Court apparently fell in error in observing that Boramma - Defendant No. 3, who is the widow of Chikkamayegaiah, was a coparcener to accept her testimony as credible evidence, to dismiss the suit. The presumption that Boramma is a co-parcener, is apparently illegal, as she is the widow of the deceased co-parcener. Regard being had to the reasons, findings and conclusions arrived at by the lower appellate Court and in the light of what is stated supra, in my considered opinion, no exception can be taken to the lower appellate Court reversing the findings of the trial Court. Hence does not call for interference. No substantial question of law arises for decision making and the appeal is dismissed at the stage of admission.