Sanneerappa S/O Late Thimmaiah & Others vs Kumari Mahadevamma, D/O Doddappa & Others

Ravi V. Hosmani, J

Challenging judgment and decree dated 09.11.2007 passed by Civil Judge (Sr.Dn.), Sira in R.A.no.112/2005 ('First Appellate Court') and judgment and decree dated 26.07.2003 passed by Additional Civil Judge (Jr.Dn.) and JMFC, Sira, in O.S.no.16/1994 ('Trial Court'), this appeal is filed.

Appellants herein were defendants, while respondents herein were legal representatives of original plaintiff and are referred to as such herein.

O.S.no.16/1994 was filed for relief of partition of plaintiff's 1/3rd share in suit schedule properties which belonged to propositus Giriyappa, ancestor of plaintiffs and defendants. It was stated that Giriyappa married Ningamma (first wife) and begot a daughter by name Junjamma and through second - wife Sakamma, he had four children namely Thimmaiah, Giriyanna, Puttaranganna and Badeerappa. And further that during his life time Giriyappa partitioned suit schedule properties under registered deed of partition dated 04.06.1942, wherein shares were allotted to Thimmaiah, Puttaranganna and Badeerappa with right of maintenance for Sakamma and Giriyappa. It was stated that Puttaranganna and Badeerappa were minors and that plaintiff and defendants were in joint possession and enjoyment of suit schedule properties.

It was stated that, with sole intention of defrauding plaintiff of his share in suit schedule properties, defendants in collusion with revenue authorities managed to get their names entered in record of rights illegally. When plaintiff approached defendants requesting for partition of her 1/3rd share, it was refused giving rise to cause of action for filing suit.

Despite service of suit summons, defendant no.5 did not appear and contest suit. She was placed ex-parte. Defendants no.1 to 4 and 6, however filed written statement denying plaint averments in toto including accrual of cause of action and pedigree. It was stated that Puttaranganna had no daughter, and at time of marriage, Puttaranganna was not keeping good health and his wife left him after just few days of marriage and subsequently he died. It was claimed that family properties of defendants were divided long back, mutation in revenue records effected and they were in possession of lands fallen to their respective shares.

It was further stated that prior to his death, Puttaranganna had relinquished all his rights in joint family properties to Thimmanna and Badeerappa and they were exercising all rights of ownership over said properties since more than 30 years openly and without obstruction or interference by any one. It was stated that suit was filed at behest of some persons inimical to interests of defendants and therefore liable to be dismissed.

Based on pleadings, trial Court framed following issues and additional issue:

ISSUES:

Whether the plaintiff proves that the addresses mentioned in the cause title is correct?

Whether the plaintiff proves that he and defendants are the members of the joint family and the Pedigree given is true and correct?

Whether the defendants prove that the plaintiff is not the daughter of Puttarangappa?

Whether the defendants prove that Puttarangappa relinquished his all rights in the family properties in favour of Thimmanna and Badeerappa?

Whether the plaintiff is entitled for partition and separate possession as prayed for?

What order or decree?

ADDITIONAL ISSUES:

Whether the defendants prove that they have perfected their title over the suit schedule properties by way of adverse possession?

During trial, plaintiff’s husband was examined as PW-1 and Exs.P1 to P10 were marked, while defendant no.6 was examined as DW-1 and independent witness as DW-2, Exs.D1 to D10 were marked.

On consideration, trial Court answered issues no.1, 2 and 5 in affirmative, issues no.3, 4 and additional issue no.1 in negative and issue no.6 by decreeing suit allotting 1/3rd share in suit schedule properties by metes and bounds.

Aggrieved by said judgment and decree, defendants preferred R.A.no.112/2005 contending that trial Court passed decree without appreciating evidence and law. It was contended that when defendants out-rightly denied claim of plaintiff as daughter of Puttaranganna, without any evidence, trial Court held plaintiff was member of joint family without any independent witness. It also failed to appreciate relinquishment deed executed by Puttaranganna in favour of defendants. It was also contended that, after partition between Giriyappa, Thimmanna and Badeerappa, there was subsequent partition as per Ex.D9 between Thimmanna and Badeerappa, in terms of which revenue records were mutated. Based on same, defendants claimed to have perfected their title by adverse possession.

Based on said contentions, first appellate Court framed following points for consideration:

Whether appellants prove that the judgment and decreed passed by trial Court is erroneous?

Whether the appellants prove that the trial Court has not framed proper issues?

Whether the appellants prove that there is insufficient evidence and the matter is to be remanded back to trial Court for fresh trial?

Whether the appellants have made out case to amend the written statement?

Whether appellants be permitted to adduce additional evidence?

What order or decree?

On consideration, it answered points no.1 to 5 in negative and point no.6 by dismissing appeal and confirming judgment and decree passed by trial Court. Against concurrent findings, defendants are in appeal.

Sri A.V. Gangadharappa, learned counsel for defendants - appellants submitted that there was mis-appreciation of evidence by trial Court and first appellate Court. It was submitted that, defendants’ instant second appeal arose out of suit for partition, wherein plaintiff was claiming 1/3rd share in suit schedule properties. It was submitted that as per plaintiff, propositus Giriyappa had two wives namely, Ningamma, through whom a daughter by name Junjamma was born. And through second wife-Sakamma, he had four children namely, Thimmaiah, Giriyanna, Puttaranganna and Badeerappa (defendant no.6). Thimmaiah died leaving behind four children, arrayed as defendants no.1 to 4. And Smt.Bommakka was arrayed as defendant no.5 as her husband Giriyanna had died. Plaintiff no.1 claimed to be daughter of Puttaranganna and his first wife Rangamma.

Plaintiff stated that in family partition that took place on 04.06.1942, suit schedule properties were allotted to shares of Thimmaiah, Giriyanna, Puttaranganna and Badeerappa. Thereafter, said properties continued to be in joint possession and cultivation of plaintiff and defendants and when defendants sought to deny plaintiff's share, she sought partition and upon denial filed suit.

It was submitted that defendants denied relationship of plaintiff as daughter of Puttaranganna. They led evidence to establish that after marriage, Smt.Rangamma had left Puttaranganna within few days. And except pleading about her pedigree, plaintiff did not lead any specific evidence or produce documents, such as birth certificate, school records etc. to prove lineage. Despite same, both Courts held relationship as proved. It was further submitted that plaintiff failed to examine herself during her lifetime. After her death, her husband was examined as PW1, who initially admitted that his parents-in-law, were alive, but later contradicted it by stating that as on date of his marriage with plaintiff, they were dead. It was therefore contended that PW1 lacked knowledge about family of defendants denuding his deposition of evidentiary value.

Pointing out that PW.1 was stranger to family of defendants, it was submitted that his deposition would not establish relationship. It was also submitted that no independent witness was examined to prove relationship. Therefore, both Courts erred in holding plaintiff as daughter of Puttaranganna. It was submitted that documentary evidence produced by plaintiff namely Ex.P1 - death certificate, in fact showed name of plaintiff’s husband as Doddappa; and Ex.P2 - genealogical tree since issued by village accountant would not carry any evidentiary value; Exs.P3 to P7 being record of rights and Exs.P8 and P9 being khata extracts would not assist her claim. Even Ex.P.10 - certified copy of registered deed of partition dated 04.06.1942 would not bear much value, as it was executed prior to her birth.

It was submitted that in any case, prior to his death Puttaranganna had executed deed of relinquishment (Ex.D.10) in favour of Thimmaiah and Badeerappa and hence, joint possession claimed by plaintiff over schedule properties was ill-founded. Hence, both trial Court as well as first appellate Court committed grave error in holding that plaintiff established herself to be daughter of Puttaranganna and entitled for partition of suit schedule properties.

It was submitted that while giving finding on issues no.2 and 3, one of reasons assigned was upon death of plaintiff, it had recorded evidence and concluded that PW.1 and children were legal representatives. It was submitted that allowing of application under Order XXII Rule 3 of CPC permitting plaintiffs (a) to (d) to come on record would permit them only to continue suit and not discharge burden to establish their right to claim reliefs. It was also contended that said order, at best established her relationship with PW.1, but not with defendants. It was submitted that strangely, trial Court placed burden upon defendants to prove that plaintiff was not daughter of Puttaranganna, which would be contrary to established tenets of law of evidence. It was submitted that trial Court answered issue no.4 in negative on ground that Ex.D.10 was not only unregistered, but also as there was tampering of date of purchase of stamp paper. It’s further reason that neither attestors nor scribe were examined, when said deed not compulsorily attestable, would render trial Court decree contrary to law.

It was submitted that while rejecting plea of adverse possession, it observed said contention, in nature of ouster could be taken only by admitting plaintiff as member of joint Hindu Family. It was submitted that such technical conclusion ought not to have been drawn on such fundamental fact required to be established by plaintiff.

It was also submitted that as defendants had sought amendment of written statement for elucidating plea of ouster/adverse possession, first appellate Court rejected on technical reason of delay. Thus there was miscarriage of justice.

It was further submitted that first appellate Court erred in dismissing I.A.no.III filed by defendants without proper application of mind. It was submitted that reasons assigned for rejection of application for additional evidence was on ground that some of them were irrelevant, while others were already adduced, was not justified. In light of above contentions, learned counsel sought for answering substantial questions of law framed in favour of defendants and consequently to allow appeal by setting aside impugned judgment and decrees and dismiss plaintiff's suit.

Heard learned counsel for defendants, perused impugned judgments and decrees and records. While, service of notice to respondents no.1 and 3 i.e. plaintiffs 1(b) and (d) was held sufficient by order dated 28.03.2011, there is no representation for respondent no.2 / plaintiffs 1(c). Plaintiff 1(a) was recorded as died during pendency of these proceedings.

It is seen that above appeal was admitted on 29.11.2011 to consider following substantial questions of law:

Whether the Court below is justified in decreeing the suit filed by the respondent without taking into consideration Ex.D9 and Ex.D10?

Whether the Appellate Court is justified in rejecting the applications I.A.no.3 and 4 seeking for amendment of written statement as well as the application filed under Order 41 Rule 27 of CPC?

Thus, it is seen that defendants are seeking to assail judgment and decrees passed by trial Court as well as first appellate Court mainly on two counts: firstly, challenging finding of both Courts regarding proof of relationship between plaintiffs and defendants and secondly, on ground of improper rejection of I.A.s no.II and III i.e. for amendment and for leading additional evidence respectively.

Insofar as first substantial question of law is concerned, it is contended that defendants had vehemently denied plaintiff’s claim that she is daughter of Puttaranganna. Since suit was for partition and separate possession of plaintiff’s 1/3rd share in suit schedule properties, burden would be on plaintiff to prove relationship by leading cogent evidence. In absence of official records such as, Birth Certificate, School records etc. or examination of any relative, presumption drawn on basis of order passed on I.A. for bringing legal representatives on record was perverse etc.

Indeed, Hon’ble Supreme Court in Varadarajan Vs. Kanakavalli & Ors. 2020 (11) SCC 598, has held that a finding under Order XXII Rule 5 of CPC, on an application filed under Order XXII Rule 3 of CPC, is only for purpose of brining legal representatives on record for conducting proceedings and would not operate as res-judicata insofar as determination of issue, who is legal representative, and on that count reasoning of both Courts would be contrary to law, said error however, would not upset impugned decrees.

Admittedly, defendants have taken plea of adverse possession and ouster. Trial Court framed specific issue and answered additional issue no.1 in negative against defendants, which finding is confirmed by first appellate Court. In this regard, Hon’ble Supreme Court in Binapani Paul Vs. Pratima Ghosh, 2007 (6) SCC 100 has held :

“39. Interestingly, Amal pleaded ouster. If ouster is to be pleaded, the title has to be acknowledged. Once such a plea is taken, irrespective of the fact that as to whether any other plea is raised or not, conduct of the parties would be material. If, therefore, plea of ouster is not established, a fortiori the title of other co-sharers must be held to have been accepted.”

(emphasis is supplied)

Therefore, as consequence of failure to establish plea of adverse possession and ouster specifically taken by defendants in suit, it has to be held that right of plaintiff to claim share in joint family properties is admitted. Therefore, contentions of learned counsel for appellant would not give rise to substantial question of law.

While plaintiff has produced Ex.P.10 - certified copy of registered deed of partition dated 04.06.1942 between propositus Giriyappa and his sons namely, Thimmaiah, Puttaranganna and Badeerappa, it mentions Puttaranganna and Badeerappa were minors. On other hand, defendants claim that Thimmaiah and Badeerappa continued in joint and under Ex.D.9 - unregistered partition deed executed on 15.04.1962, partitioned suit schedule properties between themselves. They also claim that under Ex.D.10 – unregistered relinquishment deed dated 28.06.1960, Puttaranganna relinquished his right over suit schedule properties in favour of Thimmaiah and Badeerappa.

Insofar as Exs.D9 and 10, which are unregistered deeds of partition and relinquishment deeds, it would be apposite to refer to observations of Hon’ble Supreme Court in Yellapu Uma Maheswari v. Buddha Jagadheeswararao (2015) 16 SCC 787, as follows:

“13. Section 17(1)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered under Section 17 of the Act.

Coming to the facts on hand, Defendant 1 wanted to mark Exts. B-21 and B-22; according to her, these two documents are agreement and a memorandum which were unregistered and unstamped documents and do not require registration. We have seen Exts. B-21 and B-22 which are placed before us. Ext. B-22, dated 4-6-1975 as per the recitals, is an agreement between Respondent 1-plaintiff, Appellant 1-Defendant 1 and late Mahalakshamma. Clause 1 of the agreement speaks about relinquishment of rights of Mahalakshamma in favour of Respondent 1-plaintiff and Appellant 1-Defendant 1 and Clause 4 specifies that the life estate of Mahalakshamma is devolved upon Respondent 1-plaintiff and Appellant 1-Defendant 1 equally. It is further specified that the stock amount of Rs 50,000 in the shop was given to Mahalakshamma and left over amount will be divided between Respondent 1-plaintiff and Appellant 1-Defendant 1 and further, it was agreed upon that Mahalakshamma was entitled to reside in the house where she was residing. She was at liberty to reside in the house of Respondent 1-plaintiff and Respondent 1-plaintiff and Appellant 1-Defendant 1 shall not raise any dispute over this. Coming to Ext. B-21, dated 5-6-1975, which is an agreement between Mahalakshamma, Respondent 1-plaintiff and Appellant 1-Defendant 1 wherein at Clauses 4 to 6 the recitals pertain to relinquishment of shares between the parties to the agreement. It is stated in the memorandum, Ext. B-22, that each of them having partitioned the properties by good and bad qualities, have been enjoying the respective properties that fell to their shares; in proof thereof, the deed of memorandum is executed. Taking us through the recitals of these two documents, the learned Senior Counsel tried to impress upon this Court, particularly through the last few lines from Ext. B-21, that these documents are only evidencing the past transaction of partition that has taken place but through these documents no rights in immovable property have accrued to the parties as envisaged under Section 17 of the Registration Act and which makes these documents out of the purview of Section 49 of the Registration Act.

It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exts. B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exts. B-21 and B-22 are the documents which squarely fall within the ambit of Section 17(1)(b) of the Registration Act and hence are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exts. B-21 and B-22 are not admissible in evidence for the purpose of proving primary purpose of partition.

Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of the Andhra Pradesh High Court in Chinnappareddigari Peda Mutyala Reddy v. Chinnappareddigari Venkata Reddy [1967 SCC OnLine AP 4: AIR 1969 AP 242] has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellant-defendant want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the trial court is at liberty to mark Exts.B-21 and B-22 for collateral purpose subject to proof and relevance.”

Hence, neither Ex.D.9 nor Ex.D.10 can be looked into, regardless of finding of tampering and erroneous casting of burden upon defendants to disprove relationship of plaintiff with Puttaranganna. Hence, substantial question of law no.1 is answered in affirmative.

Insofar as legality of rejection of I.As.no.II and III by first appellate Court, it is seen that defendants filed I.A.no.II for amendment of written statement and I.A.no.III was filed for additional evidence.

On I.A.no.II, first appellate Court observed that trial Court had held issue about plea of adverse possession in negative on ground of failure of defendant to establish same. It also observed that plea of adverse possession sought to be raised by amendment was already urged before trial Court, which had framed specific issue and answered in negative after defendants failed to establish it. It observed that defendants had filed written statement on 19.01.1994; while application for amendment was filed on 25.10.2006 after 12 years 10 months only to fill-up lacuna, which was not permissible. It was further observed that said application was filed 3 years after filing appeal and therefore belated.

On I.A.no.III, it observed that defendants had failed to furnish substantial reason for non-production of documents before trial Court. It observed explanation offered by defendants was that said documents were covered with cloth and kept in earthen pot and discovered after recent request by their counsel and they were found while searching in old records. It was held that when documents sought to be produced were always in their possession. On examination of documents sought to be produced i.e., record of rights and produced before trial Court, it's production once again would be unnecessary. Further, certificate issued by Tahsildar about no entry about plaintiff's date of birth in Birth Register and certificate issued by Head Master, Government Primary School to state that plaintiff had not studied in said school would be irrelevant for purpose of establishing plaintiff’s pedigree. It observed that none of circumstances contemplated in Order XLI Rule 27 of CPC, namely when trial Court had refused to admit evidence, which ought to be admitted; such evidence was not available or within knowledge, despite exercise of due diligence or that such evidence was required to pronounce judgment or any other substantial cause, existed.

It is seen that reason assigned by trial Court for answering pleas of adverse possession in negative was mainly on ground that it was taken without admitting plaintiff’s right or title with regard to suit schedule properties. Further reason assigned was material fact about date from which adverse possession would begin was not pleaded and neither of two witnesses examined deposed about adverse possession or ouster. While answering substantial question of law no.1 said finding is affirmed. Therefore, neither by amendment of written statement nor by additional evidence sought to be led, said finding could be reversed.

Therefore, even if orders passed for rejection of I.As.no.II and III suffer from any irregularity, same would not give rise to substantial question of law. Hence, substantial question of law no.2 is answered in affirmative.

In view of above findings, following:

ORDER

Appeal is dismissed with costs.

Judgment and decree dated 09.11.2007 passed by Civil Judge (Sr.Dn.), Sira, in R.A.no.112/2005 and judgment and decree dated 26.07.2003 passed by Additional Civil Judge (Jr.Dn.) and JMFC, Sira, in O.S.no.16/1994 are confirmed.