Shantawwa Wadekar Hiremath vs Neelamma @ Neelawwa Wadeyar Gandamath

K. Ramanna, J.—The appellant-defendant has come up with this appeal against the judgment and decree dated 3-12-2001 passed in RA. No. 40/1999 by the Civil Judge (Sr.Dn), Koppal reversing the judgment and decree dated 3-8-1999 passed in O.S. No. 256/1992 by Civil Judge (Jr.Dn), Koppal, praying to dismiss the said suit filed by the plaintiff-respondent herein.

For the sake of convenience, the parties will be referred to in their rank assigned to them before the trial court.

The brief facts of the case are that the plaintiff had filed the suit before trial Court seeking for the relief of declaration of title to half share in suit schedule properties and partition of her half share in the suit properties by meats and bounds. It is the case of plaintiff that, herself and defendant are the real sisters and grand daughters of their maternal grandmother deceased Gangawa; that the said Gangawa had owned several properties including suit schedule properties in Basapur and Bahadurbandi village; that she had executed a registered Will dated 15-4-1966 in favour of plaintiff and defendant bequeathing suit schedule properties in their favour and she died in 1969; thus, by virtue of said Will, the plaintiff and defendant jointly succeeded to the suit properties and their names were mutated under M.E. No. 35 on 3-8-1970. Their names were entered as joint owners and cultivators of suit properties since 1969 to 1983. However, during the year 1984, the defendant made an application to the Tahsildar, Koppal for mutating her name exclusively to the suit lands on the basis of unregistered relinquishment deed dated 11-6-1980 said to have been executed by plaintiff in favour of defendant. On the basis of said, application, the name of defendant entered in the revenue records under M.E. No. 64 on 21/8/1984. Challenging the said order, plaintiff preferred an appeal before Asst Commissioner, Koppal in S.R/RRT/1/91-92 which came to be dismissed directing the parties to approach Civil Court. It is the case of plaintiff that she never executed any such relinquishment deed in favour of defendant in respect of suit properties at any time and the document dated 11-6-1980 relied on by the defendant is a concocted to engulf the share of plaintiff in the suit properties. It is further case of plaintiff that the said relinquishment deed, is not a registered document That both the defendant and plaintiff are in possession of suit properties but the defendant got entered her name in suit land bearing Sy. No. 31/B of Basapur village in the year 1984 illegally. That defendant is not the absolute and exclusive owner of the said land. Both plaintiff and defendant succeeded to the suit properties as co-owners by virtue of Will dated 15-4-1966 and plaintiff is entitled for half share in each of the suit properties. Hence she fifed a suit seeking for the aforesaid reliefs.

On appearance before trial Court, the defendant resisted the suit contending that suit house bearing No. 133 of Basapur village belongs to one Rudrawa and she has bequeathed the same in her favour exclusively; that there is no illegality in the order of the Asst. Commissioner passed in respect of land bearing Sy. No. 31/B of Basapura; that all the properties of their family are not brought under the suit for partition and certain ancestral properties have been excluded; that deceased Gangawa has bequeathed her properties in their favour, but the house bearing Panchayat No. 49 of one Rudrawa has mentioned in the Will by oversight and the said Rudrawa has bequeated the said house as well as one more non suit land in her favour on 12-05-1967 and she died in the year 1982. That Gangawa died in the year 1966 and plaintiff and defendant succeeded the properties of deceased Gangawa and a joint mutation was effected for entering the names to the said properties. It is farther case of defendant that deceased Gangawa also owned some other moveable properties and after her death all her properties have been devolved upon them; however that since the defendant is residing at Basapur since her marriage and it was not practicable for her to cultivate jointly the suit land bearing Sy. No. 7/E of Bahaddurbandi and vice-versa, they got divided their properties by metes and bounds before the elders and got partitioned orally in the properties devolved upon them and accordingly the suit land bearing Sy. No. 31/B of Basapur is allotted to the defendant and the suit land bearing Sy. No. 7/E of Bahaddurbandi is allotted to the plaintiff alongwith some five thola of gold, live stock etc., thereafter the plaintiff and defendant approached the concerned village account to mutate their names to the respective properties allotted in the said partition and as per his sayings and at the advise of husband of plaintiff and other elders they mutually executed documents of partition, accordingly plaintiff executed a memo on 11/06/1980 acknowledging the antecedent title of defendant with respect of the suit land bearing Sy. No. 31/B of Basapur. So also defendant executed another memo in favour of plaintiff on the said date; that the inaction on the part of the plaintiff in challenging earlier mutations amounts to acquiescence and thereby she is estopped from claiming right over the land bearing Sy. No. 31/B of Basapur, that both of them were intended to create document evidencing earlier separation and it does not require registration and that the same cannot be construed as a relinquishment deed and the suit is barred by limitation. It is further contended that plaintiff is not in possession of said land ever since the family partition effected between them. Hence it is sought for dismissal of suit of plaintiff.

On the available pleadings on record the trial court in all had framed 6 issues. The plaintiff to prove her case examined herself as P.W. 1 and examined two more witnesses as P.Ws. 2 and 3 and got marked documents Ex.P.1 to 7. On the other hand the defendant examined herself as D.W.1 and examined three more witnesses as D.W.2 to 4 and got marked documents Ex.D.1 to D.5. The trial court after considering the material evidence placed before it dismissed the suit of plaintiff declining to grant her the relief of declaration of her ownership to the half share in suit properties situated at Basapur, holding that there was an earlier partition between plaintiff and defendant and as such the plaintiff is estopped from agitating her claim over suit properties. Being aggrieved by the said order of dismissal of suit the plaintiff had preferred appeal before the learned Civil Judge [Sr Dvn] Koppal in R.A. No. 40/1999, wherein the learned civil judge after hearing the counsel for both parties and considering the case of each party, decreed the suit of plaintiff declaring her to be entitled to half share in all the suit schedule properties. Hence this second appeal u/s 100 CPC.

Heard the arguments of counsel for both parties, and perused the records.

The substantial question of law that had been raised in this appeal is;

Whether the interpretation of Ex.D.1 by the Lower Appellate court is perverse?

Admittedly, the plaintiff and defendants are real sisters and their husbands are also real brothers. It is also not in dispute that their maternal grand mother had bequeathed the suit schedule properties to plaintiff and defendant jointly as per Ex.P.1-Will dated 15-04-1966. It is also not in dispute that under the said Will both plaintiff and defendant have equal share over the properties mentioned therein, which are the suit schedule properties, which situated both in Basapura and Bahadur bandi village consisting of one landed property and house property each in both the places. As per the Will, Ex.P-1 mutation was entered in the name of both plaintiff and defendant and the same continued till 1983. The dispute has arisen between the parties during 1984 when defendant got entered her name alone in the mutation on the basis of Ex.D-1 which is said to be the memorandum of partition entered between the plaintiff and defendant date 11/6/1980. According to defendant, since she is residing in Basapura and plaintiff is residing in Bahadur Bandi, for the sake of convenience, to look after the properties situated in both the places, at the advice of elders, they got the suit schedule properties partitioned among them and to get their names entered in the mutation, they prepared Ex.D-1 signed by the plaintiff. Similarly, the defendant also said to have executed a document similar to Ex.D-1 and given to plaintiff to enter her name in the revenue records as per the partition. Ex.D 1 is an unregistered document written on a 50 paise stamp paper. According to defendant, the same is only memorandum of partition indicating the earlier oral partition between the parties which do not require registration. However, the plaintiff seriously dispute the execution of Ex.D-1. But no material has been placed on record by the plaintiff to disprove Ex.D-1. According to plaintiff, there was no anterior partition between the parties to execute the document like Ex.D-1 and it is contended that the same cannot be looked into since the same is a unregistered one. The lower appellate Court interpreting Ex.D-1 as a relinquishment deed executed by plaintiff in favour of defendant, declined to accept the case of defendant that the same is a partition deed evidencing previous partition between the parties. The perusal of Ex.D-1 discloses that the same is only a relinquishment deed executed by plaintiff relinquishing her right over the suit properties situated in Basapura and there was no recitals in the said document as to any previous partition between the parties to that effect. The entire reading of the said document does not disclose any recitals to hold the same as a partition deed. It is well settled law that mere nomenclature of the deed is not the conclusive proof of its contents. A document should be construed on the basis of the recitals made in it and on the basis of intention of the parties.

In this regard, in case of Puzhakkal Kuttappu Vs. C. Bhargavi and Others, it has been held thus:

In construing a document, it is always necessary to find the intention of the party executing it The intention has to be gathered from the recitals and the terms in the entire document and from the surrounding circumstances. How the parties or even their representatives-in-interest treated the deed in question may also be relevant It is also well settled that the nomenclature given to a document by the scribe or even by the parties is not always conclusive.

In the instant case, as could be gathered from the intention of parties on the plain reading of Ex.D-1 discloses that the same is a relinquishment deed, which requires compulsory registration. Since under the said document, the parties are intended to transfer interest over immovable property valuing more than Rs. 100/-, it is to be bear in mind that the instant case is not a case regarding partition of joint family properties, it is partition of properties between co-owners who got acquired equal rights over properties under a Will. In a case reported in Umakanta Rao Vs. Lalitabai, it has been held thus:

Whenever document produced during trail, admissibility and objections thereto relating, to be decided before admitting the same in evidence and proceeding with trial - Document effecting partition of immovable properties worth more than Rs. 100/-not being Memorandum of partition recording anterior partition - if not registered cannot be received in evidence to prove partition - Admissible only to prove properties are joint family properties in possession of parties thereto as members of joint family and severance of their status as on the date of document.

It has also been held in case of Lakhyeswar Karmi and Others Vs. Padmabati Karmi and Others, wherein, it has been held thus:

Property valued over Rs. 100.00 P. -Relinquishment can only be by a registered document.

A partition between two co-owners can only be taken place under a registered document Even if Ex.D-1 be taken on record and is accepted in evidence, the same can only be construed as a relinquishment deed which requires compulsory registration and thus, in the absence of registration the same cannot be looked into hold that the defendant has acquired exclusive rights over the suit properties situated at Basapura village. More over, The defendant has not explained the reasons for such an unequal partition between herself and the plaintiff, since the properties situated at Basapura and Bahadur Bandi are of different valuations. No reasons have been assigned by the defendant for effecting such an unequal partition. Therefore, I do not find any illegality or incorrectness in the findings recorded by the lower appellate Court in holding that there was no earlier partition between plaintiff and defendant. The trial Court relying on Ex.D-1 wrongly held that there was an earlier partition between plaintiff and defendant and declined to decree the suit of plaintiff which has been correctly set aside by the lower appellate Court

Further, the defendant who set her right over suit properties at Basapura village under the Will executed by one Rudrevva, has failed to prove her claim before the trial Court No evidence has been placed on record by the defendant in this regard. She has not even produced the said Will if any executed by the said Rudrevva. No iota of evidence has been placed on record by the defendant to prove earlier partition between plaintiff and defendant in respect of suit properties. Of course, there were materials to show that the plaintiff and defendant are enjoying the suit properties separately and the revenue records are also standing in their names separately but as already observed, since the present suit is between co-owners and this is not a case of partition between coparceners, mere separate living and enjoying the properties separately by a co-owner for whatsoever period, will not take away the right of other co-owner over the properties to which they have equal rights, except under a registered document.

In case of Fakirappa Bailappa Kambar Vs. Kristappa Bailappa Kambar, wherein, it has been held thus:

Separate possession and enjoyment of family properties without effecting partition - Whether held in partition or under arrangement as to possession ascertained from intention of parties - Mere separate living for whatever duration and enjoyment and entry in records per se not sufficient to hold partition.

Therefore, the tower appellate Court has rightly held that there was no relinquishment of right of plaintiff over suit properties at Basapura village. The decisions of various High Courts and the Apex Courts referred to and relied on by the lower appellate Court in its judgment, is applicable to the facts and circumstances of the case. As such, the judgment and decree passed by the lower appellate Court is well reasoned and do not call for any interference. Hence this appeal fails and is accordingly dismissed. No order as to costs.