Appayya Gowda and Others vs Smt. Balakka

M.P. Chandrakantharaj Urs, J.—This is Defendant�s appeal against the judgment and decree dated 8th April, 1987 in OS No. 42 of 1980 on the file of the learned Civil Judge and JMFC, Puttur (DK).

The Defendants have suffered a decree for partition by meters and bounds of the suit B schedule property which was an agricultural land. Respondent 1st Plaintiff Balakha filed the suit on her own behalf and on behalf of her minor children claiming 1/6th share in the suit schedule property describing the property as of Hindu undivided family, consisting of Defendant Appayya Gowda, 2nd Defendant Rukmayya Gowda (since deceased) and the husband of Plaintiff No. 1.

The suit was resisted by the Defendants essentially on the ground that the deceased husband of Plaintiff-I had separated himself and by an earlier oral partition each one entitled to a share had been given his share in the suit schedule property and put in separate possession, such properties were listed in writing duly attested by witnesses, drawn up by the patel of the village and, therefore, the claim made by the 1st Plaintiff for partition and separate possession was wholly untenable.

On such pleadings, as many as ten issues were framed. We do hot propose to advert to all the issues. Before us, the learned Counsel for the Defendants Appellants has made his submission on the narrow compass of the finding recorded by the Trial Court that Ex.D-1, the palupatti that was prepared at the time of oral partition, was inadmissible in evidence, was on an erroneous conclusion reached by the trial Court and it ought to have admitted it in evidence with the exception provided u/s 49 of the Registration Act for the purpose of evidencing the factum of the partition'' pleaded on the given date and alternatively, the trial Court, even if Ex.D1 was inadmissible in evidence, should have upheld the oral evidence adduced in the light of the admission made by Plaintiff No. 1 herself when she gave oral testimony in the Court.

We have been taken through the judgment of the trial Court in regard to the above contention. The question that falls for our determination is whether the Court below erred in rejecting Ex.D1 as inadmissible in evidence and whether what Plaintiff No. 1 stated in her oral evidence in respect of the suit claim and which is extracted in the memorandum of appeal, amounts to admission which would support the case of the Defendants.

Undoubtedly oral partition was pleaded by Defendant-I in his written statement. Therefore, the burden of proving the partition was on him only. The correct approach, in our opinion, is to examine whether he has discharged that burden or has attempted to discharge his burden. There is no doubt, he has given evidence in support of his stand before court and also produced documents including Ex.D1 He has examined other witnesses like DW4 in order to prove the partition. Lengthy arguments were advanced on his behalf. His oral evidence and that of DW4 when read together with the admission of Plaintiff No. 1 would constitute conclusive evidence of the partition. What has been established and what is claimed to be the admission on the part of the 1st Plaintiff is that the divided members of the family, viz., the deceased husband of Plaintiff-I, Defendants 1 and 2 were actually in separate possession and enjoyment of different properties. The 1st document, the Record of Rights extract and the oral evidence of DW4 and the other witnesses examined would corroborate the version placed by the 1st Defendant before Court. The learned trial Judge while not totally disbelieving the fact of separate possession and enjoyment, has concluded that that was only an arrangement as the properties were situate in different villages and in the absence of any other reliable evidence, it cannot give credence to the claim of partition.

Ex.D1 was rejected from being admitted in evidence on the ground that by the said document Defendant-I tried to establish separate possession and title and not merely for the collateral purpose of establishing partition. Therefore, it was rightly rejected by the trial Court as inadmissible in evidence.

Even otherwise, the trial Court came to the conclusion that neither the attestors nor the scribe were examined to prove the contents of the documents or due execution of it. The trial court also relied upon the contradictions in the testimony of DW 4 in regard to who was in possession of which property described in Ex.D1 to come to the conclusion that his oral testimony was not dependable. It was in that circumstance that the court rejected the evidence of DW1 and DW4 and concluded that Defendant No. 1 had not proved the oral partition.

Learned trial Judge has stated that it is in the light of the totality of circumstances gathered from the evidence that the admission made by Plaintiff No. 1 in her evidence should be taken to be true. The fact that they were in possession of certain properties only on account of the earlier arrangement that was made between the brothers for convenience of cultivation and, therefore, her possession would not lead to an inference that there was partition. Similar was the view taken in regard to possession of certain properties by 17th Defendant. We do not find anything wrong in that approach.

Sri G.S. Visweswaraiah, learned Counsel appearing for the Appellants contended that it was more reasonable to draw inference that the Plaintiff would not make such improvements on the land in her possession growing arecanut by raising loan, ultimately to part with it at the partition, unless it was so done as her own separate property, a fact that she was aware of.

That is an attempt to draw inference in order to cover up the failure of Defendant No. 1 to discharge the burden cast on him. We have to take the totality of the circumstances and infer that a widow, isolated by the rest of the family, had no choice but to augment the income of her family by effecting such improvements as it would given greater income to herself and her children. If that is the normal course of human conduct then that line of reasoning or inference should be preferred to the one suggested by the learned Counsel.

We, therefore, find that on the arguments advanced before us, we cannot accept the case for the Appellants.

It was next contended by Sri Visweswaraiah that item 3 of the suit schedule property was chalgeni property acquired by the 1st Defendant and therefore it should have been construed as self-acquired property particularly in the light of the occupancy rights granted in his favour by the Land Tribunal under the Karnataka Land Reforms Act. The trial Court was bound to reject that argument for the reason that the 1st Defendant was the Karta of the family and in the absence of partition, that was the property of the joint family and not of Defendant-1 individually, There was no cogent evidence that it was acquired for his exclusive enjoyment.

We find no merit in the appeal. Appeal is rejected. Appeal rejected.